EXPLANATORY NOTE: “[**REDACTED**]” INDICATES THE PORTIONS OF THE EXHIBIT THAT HAVE BEEN OMITTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
Exhibit 10.32
EXPLANATORY NOTE: “[**REDACTED**]” INDICATES THE PORTIONS
OF THE EXHIBIT THAT HAVE BEEN OMITTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
LEASE
between
and
EVERBANK,
a Federal savings bank
(“Tenant”)
a Federal savings bank
(“Tenant”)
SUBMISSION OF THIS LEASE SHALL NOT BE DEEMED TO BE A RESERVATION OF THE PREMISES. NEITHER TENANT
NOR LANDLORD SHALL BE BOUND BY THIS LEASE UNTIL EACH HAS RECEIVED A COPY OF THIS LEASE DULY
EXECUTED BY TENANT AND HAS DELIVERED TO TENANT A COPY OF THIS LEASE DULY EXECUTED BY LANDLORD.
UNTIL SUCH DELIVERY LANDLORD RESERVES THE RIGHT TO EXHIBIT AND LEASE THE PREMISES TO OTHER
PROSPECTIVE TENANTS.
TABLE OF CONTENTS
LEASE
THIS LEASE is made as of the date last signed by each of the parties hereto (the “Execution
Date”) by and between EL-AD FLORIDA LLC, a Florida limited liability company (the “Landlord”) and
EVERBANK, a Federal savings bank (the “Tenant”). The “Effective Date” shall mean February 3,
2012.
The Landlord hereby leases to the Tenant, and the Tenant hereby leases from the Landlord, upon
and subject to the covenants, agreements, terms, provisions and conditions of this Lease, for the
Term and at the Rent hereinafter stated, the Premises, as such terms are defined in Section 1.01
hereinafter.
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.01— Definitions
The following capitalized terms shall have the following meanings in this Lease:
(a) “ADA” shall have the meaning ascribed to it in Section 6.05(c).
(b) “Additional Rent” shall mean the sums of money payable to the Landlord by the Tenant as
specified in Section 4.02. The term “Additional Rent” is sometimes used herein to refer to any and
all sums, other than the Base Rent payable by the Tenant hereunder, including, but not limited to,
sums payable on account of default by the Tenant.
(c) “Alterations” shall have the meaning ascribed to it in Section 6.05(a).
(d) “Applicable Law” shall mean any Law having application in any manner to the Premises or
the Development, or to this Lease or any matter described herein.
(e) “Architect” shall mean the architect or engineer appointed by the Landlord from time to
time, except as otherwise set forth in the Work Letter.
(f) “ATM” shall mean such automatic teller machines which the Tenant shall have the right to
locate on or about the Development pursuant to the terms and conditions as set forth in Addendum
“1”.
(g) “AT&T Garage” shall mean the existing garage located at 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000.
(h) “Auditorium” shall mean that certain auditorium with a capacity of approximately two
hundred eighty (280) persons located on the second floor of the Building, as set forth in Section
15.01.
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(i) “Base Calendar Year” shall mean the Calendar Year of 2013.
(j) “Base Rent” shall mean the sums of money payable to the Landlord by the Tenant as
specified in Section 4.01.
(k) “Building” shall mean the portion of the Development consisting of the thirty (30) story
office and commercial building (plus basement) located on the Building Land, containing
approximately nine hundred fifty-six thousand two hundred one (956,201) square feet of Rentable
Area [as described in Section 1.01(jjj)], together with the Auditorium, the Common Areas, the
Service Areas, the Office Section and the Mezzanine.
(l) “Building Improvements” sometimes referred to as the “Base Building Requirements” shall
have the meaning as set forth in the Work Letter.
(m) “Building Land” shall mean the land as set forth in Exhibit “B”.
(n) “Building Parking Garage” shall mean the AT&T Garage.
(o) “Building Rules” shall mean all rules and regulations as set forth in Exhibit “D”, as
amended in accordance with Section 6.06.
(p) “Building Signage” shall mean the Sign to be constructed by the Tenant on the north and
south façade of the top of the Building as set forth in Addendum “2”.
(q) “Building Standard” shall mean those particular improvements or that level of quality or
quantity that is typical or customary for the Office Section, as defined by the Landlord in its
discretion from time to time, but which shall, at no time be less than the greater of (i) the
Building Standard in existence as of the Effective Date of this Lease or (ii) the Building Standard
in existence, or as contemplated by this Lease to be in existence, as of the Term Commencement
Date, unless otherwise agreed in writing between the Landlord and the Tenant.
(r) “Business Day” shall mean any day other than Saturday and Sunday, but shall exclude
Holidays.
(s) “Business Hours” shall mean the period from 7:00 A.M. through 6:00 P.M. on Business Days,
7:00 A.M. through 1:00 P.M. on Saturdays, plus such additional hours and days as the Landlord may
designate from time to time. Notwithstanding the definition of “Business Hours” contained herein,
the Tenant and its employees shall have access to the Building, the Premises, the Common Areas, the
Service Areas and the Parking Facilities at all times.
(t) “Calendar Month” shall mean a full month commencing on the first day of said month.
(u) “Calendar Year” shall mean the period from January 1st through December
31st.
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(v) “Common Areas” shall mean the areas of the Development designated by the Landlord from
time to time for common use of all tenants, occupants and users of the Development, including without limitation, lobbies, atriums, pedestrian malls, hallways,
corridors, elevators, fire stairs, aisles, walkways, plazas, courts, restrooms, landscaped areas of
the Building intended for such use, the grounds and sidewalks around the Building Land, the Service
Areas, the Building Parking Garage, the Fitness Center (unless leased to a third party as permitted
by Section 15.02) and the Auditorium.
(w) “Concierge Parking Services” shall mean the service to coordinate the use of the Parking
Facilities provided by the Landlord to the tenants of the Building as described in Section 5.06.
(x) “Cost Saving Improvements” shall have the meaning ascribed to it in Section 4.02(c)(xi).
(y) “Courthouse Garage” shall mean that parking facility located at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx.
(z) “Development” shall mean the land and improvements comprising the integrated commercial
and office development (formerly known as the BellSouth Tower), including the Auditorium, the
Building, the Common Areas, the Service Areas, the Building Land, and the AT&T Garage.
(aa) “Environmental Laws” shall mean any applicable present or future federal, state or local
laws, ordinances, rules or regulations pertaining to Hazardous Substances, industrial hygiene,
indoor air quality, OSHA regulations or environmental conditions, including, but not limited to,
the following statutes and regulations as amended from time to time (i) the Federal Clean Air Act,
42 U.S.C. Section ‘7401 et. seq., (ii) the Federal Clean Water Act, 33 U.S.C. Section 1151 et.
seq., (iii) the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et. seq., (iv) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section
9601 et. seq., as amended by Superfund Amendments and Reauthorization Act of 1986 (“XXXX”), Pub. L.
No.99-499,99 Stat. 1613, (v) the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802,
(vi) the National Environment Policy Act, 42 U.S.C. Section 1857 et. seq., (vii) The Toxic
Substance Control Act of 1976, 15 U.S.C. Section 2601 et. seq., (viii) the regulations of the
Environmental Protection Agency, 33 CFR and 40 CFR and (ix) Chapters 373, 376, 380, 381, 386 and
403 Florida Statutes, and rules relating thereto, including Chapters 17, 27, 40, 61C and 62,
Florida Administrative Code.
(bb) “Escalation Year” shall mean each Calendar Year (or portion thereof when applicable)
occurring after the Base Calendar Year.
(cc) “Escrow Agent” shall mean First American Title Insurance Company at its Jacksonville,
Florida main office located at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
00000.
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(dd) “Event of Default” shall have the meaning ascribed to it in Section 13.01.
(ee) “Financial Services” shall mean (i) retail banking and commercial banking, (ii) the
sale of securities (including mutual funds), (iii) mortgage origination and mortgage brokerage
services, (iv) trust companies or trust departments, night depositories and ATM’s, and/or (v)
wealth management services.
(ff) “First Floor Space” shall mean Suite #150, as such space is presently constituted on the
Effective Date of this Lease, as set forth in Exhibit “A-1”.
(gg) “Fitness Center” shall have the meaning ascribed to it in Section 15.02.
(hh) “Force Majeure Event” shall have the meaning ascribed to it in Section 12.01.
(ii) “FROR” shall have the meaning ascribed to it in Section 3.05.
(jj) Intentionally Omitted.”
(kk) “Hazardous Substance” shall mean any hazardous or toxic substances, materials or wastes,
including, but not limited to any flammable explosives, radioactive materials, friable asbestos,
PCB’s, electrical transformers, batteries, paints, solvents, chemicals, petroleum products, or
other manmade materials with hazardous, carcinogenic or toxic characteristics, and such other
solid, semi-solid, liquid or gaseous substances which are toxic, ignitable, corrosive, carcinogenic
or otherwise dangerous to human, plant, or animal health or well-being, and those substances,
materials, and wastes listed in the United States Department of Transportation Table (49 CFR
972.101) or by the Environmental Protection Agency, as hazardous substances (40 CFR Part 302, and
amendments thereto) or such substances, materials and wastes which are or become regulated under
any applicable local, state or federal law including, without limitation, any material, waste or
substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated biphenyls or (iv) designated
as a “hazardous substance”, “hazardous waste”, “hazardous materials”, “toxic substances”,
“contaminants”, or other pollution under any applicable Environmental Laws.
(ll) “HVAC” shall mean the heating, ventilation and air condition system servicing the
Building, including the Premises and the Common Areas.
(mm) “Holdover Costs” shall have the meaning ascribed to it in Section 5(i) of the Work
Letter.
(nn) “Holidays” shall mean: New Year’s Day, President’s Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Friday after Thanksgiving Day and Christmas Day.
(oo) “Initial Partial Month” shall have the meaning ascribed to it in Section 3.01.
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(pp) “Initial Premises” shall mean the square feet of Rentable Area which are leased as of the
Effective Date under this Lease, without regard to any expansion, right of first offer, FROR, or
other adjustment to the square feet in the Rentable Area, as allowed under Article III of this
Lease.
(qq) “Initial Term” shall mean the period of time of this Lease specified in Section 3.01.
(rr) “Interim Rent” shall mean all Rent due from the Tenant from the Interim Rent Commencement
Date until the Term Commencement Date on a floor by floor basis, billed and paid at such rates
(calculated on a monthly basis or fraction thereof, as applicable) as shall be in effect as to Base
Rent commencing on the first day of the ninth month after the Term Commencement Date, as shown in
Section 4.01.
(ss) “Interim Rent Commencement Date” shall mean the date when the Rent shall commence and be
due, for such of the floor(s) of the Initial Premises which have been Substantially Completed on or
after the Phase I Substantial Completion Date, Phase II Substantial Completion Date and Phase III
Substantial Completion Date (as such terms are defined in the Work Letter), as applicable, unless
the Tenant shall occupy any of such floor(s) before such applicable date(s) for completion as
described above in which event Interim Rent shall commence as to any such floor occupied by the
Tenant, upon the Tenant’s occupancy of each such floor(s); provided, however, if the Landlord, due
in whole or in part to a Tenant Delay, is delayed beyond the Phase III Substantial Completion Date
in achieving Substantial Completion, then notwithstanding the foregoing, Interim Rent shall
commence, on a floor by floor basis, on the date such floor would have been delivered but for such
Tenant Delay [but in any event not earlier than the Phase III Substantial Completion Date with
respect to any such floor(s) the completion of which was postponed as a result of Tenant Delay];
provided, further, in no event shall any Interim Rent extend for any floor(s) beyond the Term
Commencement Date. For example for illustrative purposes only, if the Landlord Substantially
Completes and delivers one (1) of the Phase II Floors on August 15, 2012 [and the Initial Premises
is not Substantially Complete until September 15, 2012] and there are ten (10) days of Tenant Delay
associated with such floor, Interim Rent for such floor would commence on August 5, 2012 (after
taking into account ten (10 days of Tenant Delay) and be due and payable through September 15,
2012. As a second example for illustrative purposes only, if the Landlord Substantially Completes
and delivers one (1) of the Phase II Floors on August 15, 2012 (and the Initial Premises is not
Substantially Complete until September 15, 2012) and there are forty (40) days of Tenant Delay
associated with such floor, Interim Rent for such floor would commence on July 18, 2012 [after
taking into account forty (40) days of Tenant Delay] and be due and payable through September 15,
2012, as Interim Rent shall not commence earlier than the Phase III Substantial Completion Date
relative to a Tenant Delay.
(tt) “IPBI Construction Contract” shall have the meaning ascribed to it in the Work Letter.
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(uu) “Xxxxx/Xxxxxxx Street Lot” shall mean that parking lot located at 110 Xxxxx Street,
Jacksonville, Xxxxx County, Florida.
(vv) “Landlord’s Architect” shall mean with respect to the Building Improvements contemplated
by the Work Letter the architectural firm of Xxxxxxx Xxxxx & Partners.
(ww) “Landlord’s Taxes” shall mean the aggregate of all the Taxes against the Development and
the Landlord’s receipts of rents or income therefrom, but excluding (i) franchise taxes, corporate,
income, profit or excess profit taxes to the extent such taxes are not levied in lieu of any of the
foregoing against the Development or the Landlord and (ii) all the Tenant’s Taxes.
(xx) “Law” or “law” shall mean any statute, article, rule, regulation, ordinance, judicial or
administrative order or decision, or other legally enforceable doctrine of any federal, state,
regional, municipal, county, school district, or other level of government.
(yy) “Lease” shall mean this lease agreement, including all attached Exhibits, Addenda and
Schedules, as amended from time to time in writing, and any of such Exhibits, Addenda and Schedules
referred to in this Lease and attached hereto, all of which are incorporated herein and made a part
hereof.
(zz) “Market Rate” shall have the meaning ascribed to it in Section 3.03.
(aaa) “Mezzanine” shall mean floors one (1) and two (2) of the Building, including the
rentable commercial space, the Common Areas and the Service Areas located on those floors, the
upper open portion of the main mezzanine area (which extends into a portion of the third floor of
the Building), and such additions thereto and subtractions therefrom as the Landlord may designate
from time to time in writing.
(bbb) “Mortgagee” shall mean any person or entity which is the holder of a mortgage
encumbering the Development, or any portion thereof, and any successor in interest or assign of
such person or entity, so long as it holds such mortgage.
(ccc) “Office Section” shall mean floors three (3) through thirty (30), inclusive of the
Building, including the Rentable Area, the Common Areas and the Service Areas located on those
floors, subject to such additions thereto or subtractions therefrom as the Landlord may designate
from time to time in writing.
(ddd) “Omni Garage” shall mean that parking facility located at 000 Xxxx Xxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx.
(eee) “Parking Facilities” shall mean the Building Parking Garage and any other parking
resources provided by the Landlord as required by this Lease.
(fff) “Parking Users” shall have the meaning as described in Section 2.04(a).
-6-
(ggg) “Posted Security” shall have the meaning as described in Section 12.06.
(hhh) “Premises” shall mean that portion of the Building as set forth in Exhibit “A”, as such
space may be expanded, added to or contracted pursuant to the terms of this Lease.
(iii) “Property Manager” shall have the meaning ascribed in Section 15.06.
(jjj) “Rent” shall mean the Base Rent, the Additional Rent and all other sums, costs or
charges required to be paid to the Landlord by the Tenant under this Lease.
(kkk) “Rent Commencement Date” shall mean twelve (12) months after the Term Commencement Date
whereupon the Tenant’s obligation to pay Rent (other than Interim Rent) to the Landlord shall
commence under this Lease.
(lll) “Rentable Area” shall mean the rentable square footage of the Building or the Premises,
as applicable, measured in accordance with the “Standard Method for Measuring Floor Area in Office
Buildings” ANSI/BOMA Z65.1 — 1996, utilizing for the Premises a core factor not to exceed twelve
percent (12%), except with respect to any floor(s) of the Premises where the Tenant is renting less
than a complete floor of the Building, a core factor of eighteen percent (18%) shall be utilized.
Notwithstanding anything contained herein, in no event shall the Rentable Area be derived from the
measurement standard required herein utilizing a core factor that exceeds twelve percent (12%),
except as noted hereinabove.
(mmm) “Security Deposit” shall mean all sums, if any, deposited by the Tenant and held by the
Landlord as security for the performance of the Tenant’s obligations in this Lease in accordance
with Section 4.10.
(nnn) “Service Areas” shall mean the service elevator, the loading dock facilities, and all
mechanical, electrical, telephone, fan, janitorial and other service rooms and areas of the
Development, subject to such additions thereto or subtractions therefrom as the Landlord may
designate from time to time in writing; provided, however, that the Landlord may not subtract from
the service elevator or loading dock facilities existing as of the Effective Date of this Lease.
(ooo) “Sign” shall have the meaning ascribed to it in Addendum “2”.
(ppp) “SNDA” shall have the meaning ascribed in Section 9.02, which SNDA shall be effective
only when duly executed by the Landlord, the Tenant and the current Mortgagee.
(qqq) “Stipulated Rate of Interest” shall mean the lesser of (1) twelve percent (12%) per
annum or (2) the maximum rate of interest permitted by Applicable Law.
(rrr) “Substantial Completion” or “Substantially Complete(d)” shall mean the completion of the
Building Improvements (to the extent located in the Initial Premises) and the Tenant Improvements
as set forth in the Work Letter to such a state of completion, which may
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occur on a floor by floor
basis, that the Landlord (or the General Contractor) has obtained a temporary or final certificate
of occupancy issued by the appropriate governmental body, except that “Substantial Completion”
shall not be deemed to not occur because of the failure of completion of details of the
construction, decoration and mechanical adjustment which, in the aggregate, are minor in nature and
would not materially interfere with the Tenant’s use and enjoyment of the Initial Premises as
intended by this Lease, unless any of such items preclude the issuance of a temporary or final
certificate of occupancy.
(sss) “Taxes” shall mean all taxes, rates, duties, levies, fees, charges, sewer levies, local
improvement rates and assessments whatsoever, imposed, assessed levied or charged by any school,
municipal, parish, state, regional, federal or other governmental body, corporation, authority,
agency or commission (including, without limitation, school boards and utility commissions),
including all reasonable costs and expenses (including reasonable legal and other professional fees
but excluding interest and penalties on deferred payments) incurred in good faith in contesting,
resisting or appealing any of the foregoing, and including any amounts now or hereafter imposed,
assessed, levied or charged in substitution for or in lieu of any such taxes, rates, duties,
levies, fees, charges or assessments.
(ttt) “Tenant Architect” shall mean architect or engineer appointed by the Landlord to prepare
the Tenant Plans and Specifications, as provided in the Work Letter.
(uuu) “Tenant Delay” shall have the meaning ascribed to it in Section 7 of the Work Letter.
(vvv) “Tenant Improvement Allowance” shall mean the sum of an allowance in the amount of
[**REDACTED**] per square foot of Rentable Area contained in the Initial Premises, to
be provided by or on behalf of the Landlord in accordance with and subject to the terms and
limitations of this Lease to help pay for the build-out expenses of the Tenant Improvements. Up to
[**REDACTED**] per square foot of Rentable Area contained in the Initial
Premises may, at the Tenant’s sole and absolute discretion, be applied by the Tenant towards its
costs for furniture, fixtures, equipment, cabling, moving expenses into the Building, information
technology, infrastructure for the Premises, etc. and/or used at the Tenant’s sole and absolute
discretion to cover any costs associated with this Lease of the Initial Premises (including the
Building Signage) and/or move but not for Rent out of funds remaining in the Tenant Improvement
Allowance after the Landlord’s payments for the Tenant Improvements as set forth in the Work
Letter. Such payment, if any, shall be made by the Landlord to the Tenant on the later of (1)
thirty (30) days of the Tenant’s written request to the Landlord for payment, which shall provide
appropriate documentation and/or invoices or (2) twenty (20) days after the Landlord has received
from the General Contractor the final draw request for the Tenant Improvements, the General
Contractor and the Landlord have resolved any issues relating thereto, and the Landlord shall have
made the final payment to the General Contractor. Any funds in the Tenant Improvement Allowance
after such payments shall forfeit to the Landlord.
(www) “Tenant Improvement Apportionment Methodology” shall have the meaning
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ascribed in
Section 3.02(d).
(xxx) “Tenant Improvements” shall have the meaning as set forth in the Work Letter.
(yyy) “Tenant’s Permitted Use” shall mean general office use and uses incidental thereto,
including Financial Services. Notwithstanding the foregoing sentence to the contrary, Tenant’s
Permitted Use shall be subject to the existing exclusive uses and other exclusive rights granted,
as of the Effective Date, to other tenants of the Development pursuant to the terms and conditions
of such other tenants’ leases, which applicable exclusive uses and other exclusive rights the
Landlord represents and warrants are set forth in Exhibit “G”.
(zzz) “Tenant’s Plans and Specifications” shall have the meaning ascribed to it in the Work
Letter.
(aaaa) “Tenant’s Property” shall mean all of the Tenant’s trade fixtures, equipment, cabling,
furniture, signage and other property of the Tenant located on the Premises which may be removed
from the Premises (or the Development with respect to facade, monument or other signage) without
any material damage.
(bbbb) “Tenant’s Share” shall mean that number, stated as a percentage, determined by dividing
the Rentable Area of the Premises, as they exist from time to time, by the Rentable Area of the
Building.
(cccc) “Tenant’s Taxes” shall mean all Taxes and increases therein imposed upon the Landlord
or the Tenant attributable to the Tenant’s Property, business or income of the Tenant or any other
occupant of the Premises, or the use or occupancy of the Premises by the Tenant or any other
occupant of the Premises.
(dddd) “Term” shall mean the Initial Term of this Lease, plus any applicable renewals or
extensions thereof; excluding, however, any periods of holdover.
(eeee) “Term Commencement Date” shall mean the date when the Initial Premises Work (as defined
in the Work Letter) is Substantially Complete as required by the Work Letter and notice of such
event shall have been provided in writing by the Landlord to the Tenant.
(ffff) “Termination Fee” shall have the meaning ascribed to it in Section 3.09.
(gggg) “Termination Right” shall have the meaning ascribed to it in Section 3.09.
(hhhh) “TI Construction Contract” shall have the meaning ascribed to it in the Work Letter.
(iiii) “Total Work” shall have the meaning ascribed to it in the Work Letter.
(jjjj) “Usable Area” shall mean the usable square footage of the Building or the
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Premises, as
applicable, measured in accordance with the “Standard Method for Measuring Floor Area in Office
Buildings” ANSI/BOMA Z65.1 — 1996.
(kkkk) “Water Street Garage” shall mean that parking facility located at 000 Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx.
(llll) “Without Default” shall mean that the applicable party at the period in question is not
in breach of any terms, conditions, payments or other obligations of such party under this Lease,
beyond any applicable notice and cure period.
(mmmm) “Work Letter” shall mean the provisions as set forth in Exhibit “C”.
ARTICLE II
PREMISES
PREMISES
Section 2.01 — Rentable Area
The Landlord, to the best of its knowledge and belief, represents and warrants to the Tenant
that the Rentable Area in the Initial Premises and the Building have been measured in accordance
with the “Standard Method for Measuring Floor Area in Office Buildings” ANSI/BOMA Z65.1 — 1996,
and that as of the Term Commencement Date, (i) the Initial Premises contains two hundred sixty-nine
thousand one hundred sixty-eight (269,168) square feet of Rentable Area and (ii) the Building
contains nine hundred fifty-six thousand two hundred one (956,201) square feet of Rentable Area.
If the Landlord re-measures the Building during the Term, in no event shall the Tenant have any
responsibility for paying any additional Base Rent or any Additional Rent due to such
re-measurement resulting in (a) an increase to the Rentable Area of the Premises, and/or (b) a
decrease to the Rentable Area of the Building. Conversely, in the event a re-measurement (whether
performed by the Landlord or the Tenant) results in (1) a decrease to the Rentable Area of the
Premises, and/or (2) an increase to the Rentable Area of the Building, the Tenant shall receive a
corresponding reduction in the Base Rent, the Additional Rent, and the Tenant’s Share. The
Landlord agrees that the Tenant shall have the right, at the Tenant’s sole cost and expense, to
re-measure the Building and/or the Premises; provided, however, that if such re-measurement results
in a deviation of two percent (2%) or more from the Rentable Area provided by the Landlord for such
applicable space then the Landlord shall, upon demand, reimburse the Tenant for the reasonable cost
of such re-measurement.
Section 2.02 — Tenant Improvements and Building Improvements
The Landlord shall provide the Tenant Improvement Allowance to the Tenant in accordance with
the terms of this Lease. The obligations of the Landlord and the Tenant regarding construction and
improvements to the Initial Premises are set forth in the Work Letter, including, without
limitation, the protocols and procedures for the escrowing and disbursement of the Tenant
Improvement Allowance. The Landlord and the Tenant shall expend all funds and do all acts required
of each of them in the Work Letter, and all such obligations shall be performed promptly and
diligently in a first-class workmanlike manner.
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Section 2.03 — Common Areas
Subject to the Building Rules and other provisions of this Lease, the Tenant shall have the
non-exclusive access to, use of, and enjoyment of the Common Areas twenty-four (24) hours a day,
fifty-two (52) weeks a year for purposes consistent with their intended use. All of the Common
Areas shall be subject to (i) the exclusive but reasonable control, management and regulation of
the Landlord and (ii) the terms of this Lease. The Tenant shall not obstruct or damage the Common
Areas. Subject to the terms of this Lease, the Landlord shall have the right, from time to time,
to change the location, size, appearance or configuration of the Common Areas, provided that such
changes do not materially or unreasonably (a) limit the Tenant’s access to the Premises, (b) reduce
or eliminate the Landlord’s provision of any amenities (e.g., the
Fitness Center (subject to the provisions of Section 15.02), the Auditorium, etc.) and/or (c)
materially and adversely affect (I) the Tenant’s Permitted Use and the benefit of the Premises
and/or (II) access, use of, and enjoyment of the Common Areas. The Tenant shall make no changes or
alterations to the Common Areas and the Tenant shall not materially obstruct in any way the
Landlord’s or any other person’s right of access, use or enjoyment of the Common Areas. All of the
Common Areas which the Tenant may be permitted to use hereunder shall be used and occupied under a
non-exclusive right for access and use with others. If the Common Areas are changed or restricted
by the Landlord as set forth hereinabove or if the Tenant’s use thereof is affected by the use of
others as permitted hereinabove, the Landlord shall not be subject to any personal liability for
diminution of use, nor shall the Tenant be entitled to any compensation or diminution or abatement
of Base Rent, nor shall such change, restriction or use by others be deemed a constructive or
actual eviction of the Tenant, excepting changes that materially and adversely affect the Tenant’s
Permitted Use, the benefit of the Premises and its access rights to the ATM or any night
depository, in accordance with this Lease.
Section 2.04 — Parking Facilities
(a) Initial Parking. Subject to the terms and provisions hereof, at all times during
the Term, to the extent relevant to the portions of the Initial Premises Substantially Completed,
the Landlord agrees to furnish to the Tenant parking permits (access cards) to park automobiles in
the Parking Facilities on an unassigned basis at the ratio of six (6) parking spaces for each one
thousand (1,000) square feet of Rentable Area leased pursuant to this Lease, as adjusted by reason
of contraction rights and other terms, privileges and determinations set forth in this Lease (the
“Parking Ratio”). The parking permits may be used by the Tenant and its respective employees,
affiliates, vendors, consultants, contractors and regulators at the Initial Premises (together the
“Parking Users”) and each Parking User shall be provided a parking permit. The Parking Users shall
enter into agreements with the Landlord (and parking vendors to the extent required), as is
consistent with the Landlord’s then current parking policy. Should the Rentable Area of the
Initial Premises be reduced at any time during the Term, the Landlord shall reduce coincident with
such reduction or contraction by a proportionate amount consistent with the Parking Ratio, the
number of parking permits it has agreed to furnish the Tenant. Notwithstanding anything contained
in this Lease to the contrary, the parking permits to be furnished by the Landlord to the Tenant
shall be furnished at no additional cost to the Tenant up
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to the number of parking permits
resulting from the Parking Ratio applied against the total number of square feet of Rentable Area
contained in the Initial Premises as of the Effective Date. To the extent that the Rentable Area
of the Premises, at any time during the Term, exceeds the Rentable Area of the Initial Premises,
then the Landlord shall use its best efforts to ensure that the cost to the Tenant associated with
the Landlord’s provision of any required additional parking permits shall be at the then existing
market rate for such parking permits in downtown Jacksonville, Florida.
The Tenant, at least every six (6) months, shall provide the Landlord with a list indicating
the names of the Parking Users which will require parking permits (the “Parking User List”). In
the event that the number of Parking Users indicated on the Parking User List is less than the
number of parking permits which the Landlord is required to provide pursuant to the Parking Ratio,
then the Landlord shall only be required to provide the number of parking permits
sufficient to satisfy the number of Parking Users on such Parking User List, plus a buffer of five
percent (5%) of such number of Parking Users (the “Parking Buffer”), until the Tenant provides the
Landlord with an updated Parking User List. In the event that the Tenant provides the Landlord
with an updated Parking User List, then within forty-five (45) days following receipt of the
updated Parking User List, the Landlord shall provide to the Tenant the number of parking permits
necessary to satisfy the Parking Users on the Parking User List plus the Parking Buffer, but in no
event shall the Parking Permits required hereunder exceed the Parking Ratio. In addition, no more
frequently than two (2) times per year, the Landlord may submit a written request that the Tenant
update the Parking User List, which the Tenant shall provide within fifteen (15) days of such
written request. In addition, the Tenant agrees that it shall use its good faith efforts to
provide the Landlord and on an as occurring basis with an updated Parking User List as soon as
reasonably practicable, in the event that there has been or will be a ten percent (10%) change in
the number of Parking Users from the prior Parking User List. The Landlord shall use its good
faith efforts, so long as no additional fee or cost is charged to the Landlord, to cause such
provided parking in each respective facility to be located in congregated areas with other
employees of the Tenant where possible. The Landlord shall use its commercially reasonable good
faith efforts to cause the parking resources to be made available to the Tenant to be located
approximately as follows:
| 1. | Water Street Garage |
691 spaces | ||||||
| 2. | Omni Garage |
202 spaces | ||||||
| 3. | Courthouse Garage |
300 spaces | ||||||
| 4. | Xxxxx/Xxxxxxx Street Lot * |
30 spaces | ||||||
| 5. | AT&T Garage |
412 spaces | ||||||
Total |
1,635 spaces | |||||||
| * | This allocation includes the Visitor Parking Spaces, as more particularly described in Section 2.04(c) hereinbelow, subject to the terms of such Section 2.04(c). |
The Landlord reserves the right to make reasonable, but not material, changes to the aforesaid
parking allocations based upon availability and pricing, the parties hereto recognizing that some
of the aforesaid parking resources are controlled by third parties.
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At any time the Tenant shall have the right to relocate up to a total of six hundred and
ninety-one (691) of its employees parking from the Water Street Garage to such other locations as
any of such employees (the “Relocation Employees”) may determine, on the following conditions (i)
the Tenant shall notify the Concierge Parking Services in writing of the Tenant’s desire to
relocate a stated number of employees, not to exceed six hundred and ninety-one (691), from the
Water Street Garage to other Parking Facilities (each a “Parking Notice”), all of which information
shall be submitted to the Concierge Parking Services, in groups of at least twenty-five (25)
parking space relocations per notice. Upon receipt of the Parking Notice, the Landlord shall cause
the Concierge Parking Services to use its good faith efforts to relocate those employees wishing to
move from the Water Street Garage to other Parking Facilities and the Landlord shall seek parking
within any of the Courthouse Garage, the Omni Garage or the Building Parking Garage or the closest
available parking facility within proximity to the Building. No later than sixty (60) days after
receipt of a Parking Notice, the Landlord shall cause
the Concierge Parking Services to notify the Tenant of the availability of parking for the
Relocation Employees and the Tenant shall coordinate with its employees and determine which of the
Relocation Employees desire to accept alternative parking. The Landlord shall use its good faith
efforts to make parking arrangements for each of such Relocation Employees at the appropriately
selected Parking Facility and each of such Relocation Employees shall be responsible to sign its
own parking agreement with the owner of the Parking Facility, but the Tenant shall, in all cases,
notify the Concierge Parking Services and the Landlord that such individual is a Relocation
Employee of the Tenant, subject to the terms of this Lease. The Tenant (or its employees, as they
determine), will pay the parking cost and expense of such Relocation Employee parking and provide
to the Landlord on a monthly basis a schedule of the Relocation Employees and the actual amount
incurred. Within thirty (30) days of receipt of such invoice, the Landlord shall on a monthly
basis reimburse the Tenant for such Relocation Employee parking charges actually incurred up to the
amount which would have been incurred under the Water Street Garage contract at the then existing
contract rate. The protocol set forth herein recognizes that the Landlord has no way to account
for the identity of the Tenant’s Relocation Employees from time to time and that by utilization of
the aforesaid protocol, the Tenant can verify whether or not a submission to the Landlord relates
to a person who was, during the period in question, a bona-fide employee of the Tenant.
(b) Visitor Parking. In addition to the foregoing parking permits, the Landlord shall
make available to the Tenant at market rates then in effect and on a continuous basis twenty (20)
parking spaces for visitors (without limitation, vendors, contractors, regulators and other
designees and their employees), which spaces shall be designated, at the Landlord’s expense, as
visitors spaces and shall be appropriately marked and made available to the Tenant prior to the
Tenant’s occupancy of the Building (the “Visitor Parking Spaces”). The Landlord shall provide
notice in writing to the Tenant of the location from time to time of such Visitor Parking Spaces;
provided, however, the Landlord shall use its best efforts to ensure that such Visitor Parking
Spaces shall be located no further than two (2) blocks from the Building. Initially, the Visitor
Parking Spaces shall be provided at Xxxxx/Forsyth Street Lot. The monthly cost and expense of the
Visitor Parking Spaces shall be borne by the Tenant and shall be separately billed by the
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Landlord
to the Tenant on a monthly basis and shall be due to the Landlord with the next monthly installment
of Rent as set forth herein. Such Visitor Parking Spaces shall be deemed to be a requirement
independent of the Parking Ratio set forth herein.
(c) Temporary Parking. The parties hereto acknowledge that the Tenant may have a need
for up to one hundred (100) additional parking spaces for temporary workers. Upon the Tenant’s
request made to the Concierge Parking Services, the Landlord shall use its best efforts to make
available to the Tenant during the Term of this Lease up to one hundred (100) temporary parking
spaces from time to time at market rates then in effect, within two (2) blocks from the Building;
provided, however, the Tenant shall endeavor to make any such request for temporary parking to the
Concierge Parking Services no later than thirty (30) days prior to the date that such temporary
parking spaces are needed by the Tenant. The Tenant’s request shall describe with specificity the
actual number of temporary parking spaces needed, the duration that such spaces are needed and the
Tenant’s preferred location of such temporary parking spaces. The cost of such temporary parking
spaces shall be billed monthly in arrears by the Landlord to the Tenant
and shall be due to the Landlord with the next monthly installment of Rent as set forth
herein.
Section 2.05 — ATM and Retail Bank Branch
So long as this Lease remains in full force and effect, the Tenant, pursuant and subject to
this Section 2.05 and Addendum “1”, shall have the exclusive right to offer Financial Services in
the Mezzanine and ATM services in the Development. In consideration hereof, as set forth in
Addendum “1”, the Landlord shall have no obligation or responsibility whatsoever with respect to
the ATM or its contents, including money.
Section 2.06 — Signage and Building Name
(a) Top of Building Signage. Upon the terms and conditions set forth in and permitted
by Addendum “2”, the Landlord grants to the Tenant the right to locate upon the top of the Building
the Sign as set forth in Addendum “2”. The Tenant shall be responsible for all actual costs of
removing the existing AT&T signage on the Building (excluding any payments or concessions paid by
the Landlord to the owner of the AT&T signage) and other direct and indirect costs and expenses
(including without limitation the cost of all applications, approvals and permits) for the
installation and maintenance of the Sign during the Term of the Lease as set forth in Addendum “2”
and no portion of such cost shall be paid out of the Tenant Improvement Allowance, except as set
forth herein. The rights and privileges afforded by the Addendum “2”, and the consideration
required therefore to be paid by the Tenant to the Landlord, is as more particularly set forth in
Addendum “2”. The top of the Building Sign rights shall terminate as set forth in Addendum “2” and
the costs to remove any of such Sign shall be allocated as set forth in Addendum “2”.
(b) Street Level Signage. Commencing on July 1, 2012, the Landlord does hereby grant
to the Tenant, and the Tenant shall have, subject to all Applicable Laws, the right through the
Term of the Lease, at no additional cost to the Tenant, to place and install xxx xxxxxx xxxxx
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signage at the Tenant’s sole cost and expense (including without limitation the cost of all
applications, approvals and permits) and repair expense to the façade where the Tenant installs
such signage) on the façade of the Building at each entrance of the Building and on the east side
of the Building (in proximity to the existing AT&T signs and “ING” signs), in common with other
tenants at the Building (provided that the Landlord shall not provide street level signage to any
other tenant engaging in Financial Services, other than as the existing signage rights in favor of
“ING”, or its successors in interest as such rights exist in writing as of the Effective Date), as
designated and depicted in Addendum “3” (collectively, the “Street Level Sign”).
(c) Monument Signage. Commencing on July 1, 2012, the Landlord does hereby grant to
the Tenant, and the Tenant shall have, subject to all Applicable Laws, the right through the Term
of the Lease, at no additional cost to the Tenant, to place and install the monument signage at the
Tenant’s sole cost and expense on the existing four (4) monuments (the “Monuments”) of the
Building, in common with other tenants at the Building, as designated and depicted in Addendum “3”
(the “Monument Signage”).
(d) Door and Directory Signage. Commencing upon the Interim Rent Commencement Date,
for each portion of the Initial Premises as applicable, the Landlord does hereby grant to the
Tenant, and the Tenant shall have, subject to all Applicable Laws, the right through the Term of
the Lease, to have the Landlord, in accordance with Building Standards, at the Landlord’s expense,
place and install at each Premises entrance door and on the Building directory, signage identifying
the Tenant and/or its affiliate as designated from time to time by the Tenant to the Landlord
(collectively, the “Door and Directory Signage”). Commencing upon the Interim Rent Commencement
Date, for each portion of the Initial Premises as applicable, and continuing during the Term of the
Lease, the Tenant shall also have, at its sole cost and expense, the right, but not the obligation,
to install elevator buttons in each passenger elevator cab serving the Building (excluding freight
elevator cabs) which elevator buttons will designate the Tenant and/or a major business unit of
Tenant or an affiliate of Tenant on that particular floor of the Building where Tenant leases the
entire floor. Notwithstanding anything contained in the Lease to the contrary, upon the expiration
or earlier termination of the Lease, the Tenant shall, at its sole cost and expense, restore to the
condition immediately prior to modification, any elevator buttons modified by the Tenant pursuant
to the foregoing sentence.
(e) Building Name. As of July 1, 2012, the name of the Building, at no additional
cost or charge to the Tenant, shall be formally changed to the “EverBank Center” which name shall
be in force and effect during the Term of this Lease; provided, however, the Tenant shall have no
claim against the Landlord or other tenants of the Building whatsoever should any third party,
including other tenants in the Building, refer to the Development or the Building by another name.
The Landlord shall have no responsibility whatsoever to police, enforce or otherwise control the
use of the name “EverBank Center” or the failure to use such name, excluding the Landlord’s own
use.
(f) Change of Name. In the event that the Tenant changes its name or logo designs or
undertakes any other rebranding resulting in a change in the name of the Tenant (including, but not
limited to any sale or merger of the Tenant) then at no additional cost or charge to the
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Tenant,
the name of the Building, upon the written request of the Tenant, shall be formally changed in
accordance with such request. The Tenant shall not be required to obtain the Landlord’s approval
to change the name of the Building so long as such name change is in keeping with the character of
the Building as a Class A office building. In the event that the Tenant changes the name of the
Building as provided for hereinabove, and the Landlord, in its reasonable discretion, believes that
such name change is not in keeping with the character of the Building as a Class A office building,
then the Tenant and the Landlord shall work together in good faith to resolve such matter. All
actual but reasonable and documented costs and expenses associated with any Building signage,
directories, and monuments, incurred by the Landlord as a result of effecting such change of name
shall be borne by the Tenant and the Tenant shall reimburse the Landlord within thirty (30) days of
notice thereof for such costs and expenses as Additional Rent. Any change in the signage of Tenant
at the Building done at the Tenant’s request, for any reason including, without limitation,
rebranding, shall be done solely at the Tenant’s cost and expense, including removal and disposal
of old signage, and design and installation of replacement signage, including all costs of design,
construction, insurance, permits and compliance with Applicable Laws related thereto.
(g) Removal and Repair Costs. At the termination of this Lease, whether by default or
passage of time or at the Tenant’s election as permitted in Section 3.09 of this Lease, the Tenant,
at its sole cost and expense, shall remove all signage described in Sections 2.06(b), 2.06(c) and,
subject to the provisions as described in Addendum “2”, the Sign at the top of the Building and the
Tenant shall also restore, at its sole cost and expense, the façade or face of any area where any
such signage has been removed, to its condition as exists immediately prior to its initial
installation by the Tenant, except for normal wear and tear and casualty, subject to the provisions
of Addendum “2”. Nevertheless, the Tenant shall be responsible at its sole cost and expense to
promptly repair and restore all of the Tenant’s Street Level Sign and Monument Signage should any
of such signage be damaged or destroyed from time to time; provided, however, should the Building
or any monument be damaged or destroyed, then the Landlord shall be responsible to promptly restore
any such casualty, except as may be otherwise provided by this Lease. The provisions of this
Section 2.06(g) shall survive termination of this Lease and may be enforced as provided by
Applicable Law, the cost and expense of which shall be borne by the prevailing party.
(h) Signage Ownership. All signage described in Sections 2.06(b), 2.06(c) and as
described in Addendum “2”, including the Sign at the top of the Building, shall at all times remain
the personal property of the Tenant and to the extent removed by the Landlord in accordance with
the terms and conditions of this Lease, such signage shall be handled in a manner so as to preserve
and protect such signage; provided, however, in the event any of such signage is not removed by the
Tenant within forty-five (45) days after the termination of this Lease (whether by default,
termination or passage of time), then the Landlord may dispose of any of such signage and the
Landlord shall have no liability to the Tenant for any and all damage, loss or destruction to the
Tenant’s signage. The Tenant shall reimburse the Landlord all costs and expenses incurred by the
Landlord in connection with the removal and disposal of any of the Tenant’s signage no later than
thirty (30) days after receipt by the Tenant from the Landlord of written demand therefore,
accompanied by supporting invoices, bills and other
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reasonable documentation. The provisions of
this paragraph shall survive termination of this Lease and are in addition to all other remedies
provided for herein.
(i) Drawing Approvals of Signage. The Tenant has provided to the Landlord drawings
depicting the Tenant’s desired Street Level Sign and Monument Signage, renderings of which are set
forth in Addendum “3”, which the Landlord hereby approves. However, before construction commences
on any of such signage the Tenant shall provide specifications for construction and installation to
the Landlord for approval by the Landlord. Upon receipt of each of the signage specifications the
Landlord shall have the right to approve and comment on such signage specifications, within ten
(10) days of receipt of the specifications for each of such Street Level Sign and Monument Signage,
which approval shall not be unreasonably withheld, conditioned or delayed.
Section 2.07 — Changes by Landlord
The Landlord shall have the right to make such relocations, changes, alterations, additions,
improvements, repairs or replacements in and to the Development (including the Common Areas but
excluding the Premises) as the Landlord deems desirable (the Tenant hereby
disclaiming that this Lease grants any easement or servitude of air or light rights), provided that
any such change or alteration (i) does not unreasonably interfere with the Tenant’s access to the
Premises, (ii) does not diminish the parking spaces available to the Tenant pursuant to this Lease,
(iii) does not diminish the nature, character, and aesthetic appeal of the Building as a Class A
office building, and (iv) does not materially and adversely interrupt or interfere with the
occupancy or use of the Premises or the services or amenities furnished to the Premises.
ARTICLE III
TERM
TERM
Section 3.01 — Initial Term and Initial Commencement Date
The initial term of this Lease (the “Initial Term”) shall commence on the Term Commencement
Date and shall continue for a period of time equal to (i) one hundred thirty-two (132) Calendar
Months thereafter, plus (ii) if the Term Commencement Date occurs on a date other than the first
day of a calendar month, the number of days between the Term Commencement Date and the last day of
the month in which the Term Commencement Date occurs (the “Initial Partial Month”). By way of
example without limitation, if the Term Commencement Date is September 14, 2012, then the Initial
Term would end on the last day of September, 2023, but if the Term Commencement Date is September
1, 2012, then the Initial Term would end on the last day of August, 2023.
Section 3.02 — Expansion Rights
(a) For purposes of this Section 3.02, the term “Expansion Space” shall mean the First Floor
Space, and/or any of floors 5, 6, and 12 through 19, inclusive, in the Office Section of the
Building. During the Initial Term the Tenant shall have the continuing right to expand into
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all or
a portion of the Expansion Space provided that such Office Space is Available; provided that the
Tenant is then Without Default; and, provided further, that the Tenant shall not have the right to
expand on less than a full floor when there is Expansion Space Available on a floor partially
occupied by the Tenant (exclusive of the First Floor Space). For purposes of this Section 3.02,
the term “Available” means that space in the Office Section which (i) is not part of the Premises,
(ii) is vacant and not under lease with another tenant or then subject to any rights of a tenant to
renew its lease or expand its premises or subject to a right of first refusal as set forth in
another tenant’s lease which right existed prior to the Effective Date of this Lease and (iii) is
not subject to an FROR Notice (as defined in Section 3.05 hereinbelow). The Tenant may exercise
its right during the first thirty-six (36) months following the Rent Commencement Date by providing
written notice to the Landlord (the “Expansion Notice”) to expand into all or a part of the
Available Expansion Space: (I) on the same terms and conditions as the Initial Premises (excluding
parking which shall be negotiated at the time of the expansion), (II) at the same core factor as
for the Initial Premises, and (III) including an improvement allowance based upon the Tenant
Improvement Allowance, but prorated for the remaining Lease Term (amortized as set forth below).
For the balance of the Initial Term, as measured from the end of the first thirty-six (36) months
following the Rent Commencement Date, the Tenant shall have the right to expand into all or a part
of the Available Expansion Space at the then current Market Rate, as determined in Section 3.03
herein, without any discount as may be provided therein, and on terms and
conditions, including parking, as shall be consistent with the market conditions then existing
for the leasing of Class A office buildings in the downtown Xxxxx County, Florida area, and all of
which terms and conditions (including without limitation parking), as shall be negotiated at the
time of such expansion. The Additional Rent and other charges for the Expansion Space shall also be
charged as set forth in this Lease for other portions of the Premises. After the receipt of the
Expansion Notice, the Landlord shall inform the Tenant, within five (5) Business Days whether the
Expansion Space requested in the Expansion Notice is Available, and if such requested Expansion
Space is Available, then within forty-five (45) days thereafter, the Tenant and the Landlord shall
enter into an amendment to this Lease adding the particular Expansion Space to the Premises.
Exhibit “G” hereto contains a list of tenants with potential rights to the Expansion Space that may
be superior to the Tenant’s rights to such Expansion Space.
(b) Any Lease amendment effected for the Expansion Space (each an “Expansion Space Amendment”)
shall:
(i) Provide that the specific Expansion Space shall be part of the Premises under this Lease,
the Tenant’s Percentage Share shall be adjusted to reflect the increased Rentable Area of the
Premises and the Tenant’s Security Deposit, if any, shall be proportionally increased to reflect
the addition of the Expansion Space to the Premises; and
(ii) Contain other provisions regarding parking, tenant improvement allowance, rents, etc., as
contemplated hereinabove.
(c) Unless otherwise agreed in a written amendment by the parties hereto, the rent
commencement date for the Expansion Space shall be the earlier of (i) one hundred eighty (180)
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days
from the full execution of the Expansion Space Amendment, provided that the Landlord has
substantially completed its construction obligations, if any, with respect to such Expansion Space
or (ii) the date when the Tenant substantially occupies the Expansion Space.
(d) The specific Expansion Space shall be leased to the Tenant, if at all, in its “as-is”
condition and the Landlord shall not be required to construct improvements in, or contribute any
improvement allowance for the specific Expansion Space; except, however, (i) that for any Expansion
Space Amendment related to an Expansion Notice provided in the first thirty-six (36) months
following the Rent Commencement Date, the Landlord shall provide the Tenant an improvement
allowance for the subject Expansion Space equal to the then un-amortized portion of the Tenant
Improvement Allowance, calculated on the square feet of Rentable Area contained in the Expansion
Space and the Initial Term, such un-amortized amount shall be computed on a straight line basis,
commencing on the Rent Commencement Date, and apportioned over the one hundred twenty (120) month
period of this Lease during which Rents are due (the “Tenant Improvement Apportionment
Methodology”) or (ii) that for any Expansion Space Amendment related to an Expansion Notice
provided after the first thirty-six (36) months following the Rent Commencement Date but through
the remainder of the Initial Term, the Landlord shall provide the Tenant an improvement allowance,
if any, for the subject Expansion Space according to the Market Rate. Any improvements in the
specific Expansion Space shall comply with the terms of Section 6.05 of this Lease, unless
otherwise agreed in writing between the Landlord and the Tenant.
Section 3.03 — Option to Renew
(a) The Landlord hereby grants to the Tenant, so long as the Tenant is Without Default, the
right and option to renew the Initial Term of this Lease, upon its then existing terms and
conditions, except as set forth herein, for one (1) additional term to be agreed upon, but in any
event for at least five (5) years and no greater than ten (10) years (the “Renewal Term”).
(b) The Tenant shall give the Landlord written notice (the “Renewal Notice”) of the Tenant’s
election to exercise the renewal option for the Renewal Term by written notice to the Landlord
received by the Landlord not more than four hundred fifty (450) days and not less than three
hundred sixty-five (365) days prior to the expiration of the Initial Term.
(c) In the event that the Tenant fails to be Without Default under this Lease upon the
commencement of the Renewal Term, the Renewal Term shall be immediately cancelled, unless the
Landlord elects to waive such default, and the Tenant shall forthwith deliver possession of the
Premises to the Landlord as of the expiration date or the earlier termination of the then current
Term of this Lease.
(d) Upon any renewal of this Lease, the Tenant shall be deemed to have accepted the Premises
in “as is” condition as of the commencement of the Renewal Term, subject to any other repair and
maintenance obligations of the Landlord under this Lease, it being understood and agreed that the
Landlord shall have no obligation to renovate or remodel the Premises or any
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portion of the
Building as a result of the Tenant’s renewal of this Lease, except as otherwise included as part of
the Market Rate determination set forth in Section 3.03(e) below and included in a written
amendment to this Lease.
(e) The covenants and conditions of this Lease in force during the Initial Term of this Lease
shall continue to be in effect during any Renewal Term, except that the Rent Commencement Date for
the purposes of this Lease shall be the first day of the Renewal Term, and the Base Rent for the
first year of the Renewal Term shall be ninety-five percent (95%) of the then prevailing Market
Rate for rents for the tenants of office space in excess of one hundred thousand (100,000) square
feet of Rentable Area comparable to the Premises in downtown Jacksonville, Florida. For purposes
of this Lease, the Market Rate shall be determined as follows:
(i) Depending on the term of the renewal desired by the Tenant, the Landlord shall propose to
the Tenant the Market Rate for the Renewal Term within thirty (30) Business Days following the
Landlord’s receipt of the Tenant’s Renewal Notice. The Landlord’s proposal of Market Rate shall
include its determination of the base rent, the additional rent, parking privileges and terms, the
tenant improvement allowances, base year reset, and other such terms as are subsumed in the
determination for market rents for comparable office tenancies. The Tenant shall have fifteen (15)
Business Days following its receipt of the Landlord’s notice within which to advise the Landlord in
writing either that (i) the Tenant accepts the Landlord’s proposed Market Rate and renews the Term
at such rate or (ii) the Tenant objects to the Landlord’s
proposed Market Rate. If no objection is received by the Landlord within such fifteen (15)
Business Day period, then the Tenant shall be deemed to have elected to exercise its renewal option
at the rate and on the terms set forth in Landlord’s notice.
(ii) If the Tenant’s objection to the Landlord’s proposed Market Rate is timely received by
the Landlord, then the Landlord and the Tenant shall attempt in good faith to agree upon the Market
Rate within fifteen (15) business days following the date of the Tenant’s objection to the
Landlord’s notice. If the Landlord and the Tenant agree upon the Market Rate within such fifteen
(15) business day period, then the Market Rate shall be the agreed upon base rent rate.
(iii) If the Landlord and the Tenant are unable to agree on the Market Rate within the fifteen
(15) business day period described in the preceding subparagraph (after timely notice of the
Tenant’s objection to the Landlord’s proposed Market Rate), then the Market Rate shall be
determined by appraisal as set forth herein. The Landlord and the Tenant shall attempt to agree on
a single M.A.I. appraiser. Each appraiser [whether one (1) or three (3)] shall be a disinterested
licensed appraiser expert in the downtown market of Jacksonville, Florida who, as his/her primary
livelihood, has been active in the valuation of commercial properties in this market for no less
than five (5) years and who has not previously represented either party or any related party and no
such appraiser shall have a conflict of interest. If the Landlord and the Tenant shall fail to
agree on the choice of a single appraiser within ten (10) business days after demand by either
party, then each shall select an appraiser within five (5) business days after the expiration of
the prior ten (10) day period. If either the Landlord or the Tenant fail to appoint an
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appraiser,
then the appraiser selected by the other party shall select the second appraiser within five (5)
business days following the expiration of the applicable five (5) day period referred to
hereinabove. The two (2) appraisers thus selected shall select, within ten (10) business days
after their appointment, a third appraiser. If the two (2) appraisers so selected shall be unable
to agree on the selection of a third appraiser, then either appraiser, on behalf of both, shall
request such appointment by the American Institute of Real Estate Appraisers, herein referred to as
the “Institute” (or any successor association or body of comparable standing if the Institute is
not then in existence). Each appraiser shall be a member in good standing of the Institute and
hold the highest general designation of membership therein.
(iv) The Market Rate shall be determined by the appraisers [whether one (1) or three (3)]
based upon customary and usual appraisal techniques of expert appraisers as of the scheduled
commencement date of the Renewal Term. The appraiser [if one (1)] or each of the appraisers [if
three (3)] shall prepare a written report of his/her determination of the Market Rate and deliver a
copy to the Landlord and the Tenant within thirty (30) days of the selection of the appraiser if
only one (1) appraiser is used, or within forty-five (45) days of the selection of the third
appraiser if three (3) appraisers are used. The Market Rate for purposes of this Lease shall equal
the rental rate established by the one (1) appraiser if only one (1) appraiser is used, or the
average of the proposed rental rates established by each appraiser if three (3) appraisers are
used.
(v) If the appraisal process described hereinabove is used to determine the Market Rate, then
the reasonable fees and expenses of the appraisers shall be shared equally by the Landlord and the
Tenant.
Section 3.04 — Right of First Offer
Provided that the Tenant is Without Default then within five (5) Business Days of the Landlord
learning of space being available in the Office Section, then subject to (i) the rights of any
other then existing tenant in the Building and (ii) the Tenant’s expansion rights set forth in
Section 3.02 hereof, the Landlord shall notify the Tenant that additional Office Section space (the
“Additional Space”) shall become available in the Building, together with the terms on which the
Landlord desires to lease such space (the “Offer Terms”). The Tenant shall have an option
exercisable by written notice to the Landlord within fifteen (15) Business Days after receipt of
the Landlord’s notice of availability, together with the Offer Terms, to lease the Additional Space
upon the Offer Terms. The Rent with respect to the Additional Space shall commence to be due and
payable on the date the Landlord delivers the Additional Space to the Tenant free of other tenants
and occupants and otherwise in accordance with the Offer Terms. Promptly after the Tenant
exercises this option but no later than ten (10) Business Days after the Tenant’s notice to the
Landlord of its exercise of this option, the parties shall enter into an amendment to this Lease
setting forth the terms and conditions upon which the Tenant shall lease the Additional Space and
incorporating the Additional Space as part of the Premises.
Section 3.05 — First Right of Refusal
For the first sixty (60) months of this Lease after the Effective Date, so long as the Tenant
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is Without Default on the date that the Tenant exercises such right, the Tenant shall have a first
right of refusal (the “FROR”) in floors or spaces which constitute Expansion Space under Section
3.02 hereinabove upon the same terms and conditions as set forth herein relating to the Premises at
the Base Rent then in effect (excluding parking which shall be negotiated at the time of the FROR)
including the same core factor, except that the Tenant Improvement Allowance applicable to the FROR
Premises (described hereinbelow) shall be prorated using the Tenant Improvement Apportionment
Methodology and such Tenant Improvement Allowance funds shall be made available to the Tenant in
the same manner as set forth in the Work Letter. After the first sixty (60) months from the
Effective Date and until the expiration of the Initial Term, the Tenant shall have the FROR upon
the same terms and conditions agreed to in writing by the Landlord with a bona-fide third party
prospective tenant for such floor or space (the “FROR Premises”) and no Tenant Improvement
Allowance funds shall be made available to the Tenant, unless otherwise agreed in any amendment to
this Lease. In either case, upon the Landlord’s written notice to the Tenant that the Landlord has
reached a fully executed written letter of intent to lease to a third party for the FROR Premises
(the “FROR Notice”), the FROR Notice shall describe the affected FROR Premises and the terms and
conditions of the related offer to lease, the Tenant shall have twenty (20) days to accept the FROR
Notice for the FROR Premises in writing (the “FROR Acceptance”) to expand into the FROR Premises
the Premises described in the FROR Notice. The Landlord and the Tenant shall enter into an
amendment to this Lease within forty-five (45) days of the Tenant’s FROR Acceptance to expand. The
FROR Premises shall then be added to and made part of the Premises, except the Rents applicable
thereto, as herein determined, shall commence for the FROR Premises one hundred eighty (180) days
after the Landlord and the Tenant have fully executed such Lease amendment, provided that the
Landlord has substantially completed its construction obligations, if any, for the FROR Premises,
unless the Tenant, in its sole discretion, agrees to an earlier commencement. The terms,
conditions and rates for parking attributable to the FROR Premises, if applicable, as set forth
hereinabove, shall be as negotiated between the Tenant and the Landlord independent of other terms
described in the FROR Notice and shall be agreed upon in writing before the FROR Acceptance, or the
FROR Notice as set forth herein shall be of no further force and effect. The parties hereto
acknowledge that the foregoing provisions contemplate that the lease term for any FROR Premises may
extend beyond the Initial Term.
Notwithstanding the foregoing provision regarding the FROR (subject to the rights of other
tenants in the Building as set forth in Exhibit “G”), the Tenant shall also have an ongoing FROR on
the 27th and 28th floors of the Building on the same terms and conditions
agreed to with a bona-fide third party, except in the case of these two (2) floors, the Tenant’s
FROR Acceptance shall be required within five (5) Business Days of the FROR Notice. Otherwise, the
time frames stated hereinabove shall apply.
None of the FROR options extend to any space in the Building, except the Expansion Space, the
27th and 28th floor (subject to the provisions of the paragraph next above).
In the event that the Landlord has not entered into a lease for the FROR Premises on substantially
the same terms, as described in the FROR Notice within two hundred seventy (270) days of the FROR
Notice, the Landlord shall not thereafter enter into a lease for such FROR Premises without first
delivering a new FROR Notice in connection with this Section 3.05.
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Section 3.06 — Short Term Extension Right
Provided the Tenant is Without Default, upon prior written notice to the Landlord delivered at
least ninety (90) days prior to the termination date of the Initial Term, the Tenant shall have the
one (1) time right to extend the Initial Term of this Lease for six (6) full calendar months upon
the same terms and conditions as are then in force and effect. Notwithstanding anything contained
in this Section 3.06, the Tenant shall have no right to any short term extension if the Tenant
shall have exercised its Termination Right under Section 3.09. Failure to timely deliver such
notice of the Tenant’s election of its short term extension shall render such right null and void
and of no further force and effect.
Section 3.07 — Holding Over
The Rent, at the same rates as set forth herein, shall be payable for any period of holding
over, not to exceed ninety (90) days without penalty. However, if a holding over by the Tenant
occurs for a period in excess of ninety (90) days after the expiration or termination of the
Initial Term of this Lease without the prior written consent of the Landlord, the Tenant shall pay
one hundred fifty percent (150%) of the amount of Rent payable by the Tenant for the last month of
the Initial Term for each month or a prorated amount for each part of a month that the Tenant holds
over after such ninety (90) day period. Should the Landlord give its prior written consent for the
Tenant to remain in the Premises beyond the Term for a period in excess of ninety (90) days, there
shall result a lease from month to month which may be terminated by either party upon thirty (30)
days written notice to the other, but otherwise on the terms and conditions of this Lease providing
for Rents at one hundred fifty percent (150%) of the Rent then otherwise in
effect, and no such holding over or payment of Rent resulting therefrom shall constitute a
re-conduction of this Lease. All obligations of the Tenant at the end of the Term continue in
force and effect notwithstanding any holdover, except as set forth hereinabove.
Section 3.08 — Contraction Rights
Provided the Tenant is Without Default, then the Tenant shall have the right (the “Contraction
Rights”), on three (3) separate occasions during the Initial Term of this Lease to reduce the
Premises in up to one (1) full floor increments on each occasion (the “Contraction Premises”), on
twelve (12) months prior written notice to be provided to the Landlord stating the Tenant’s
exercise of the Contraction Rights, and describing the affected portion of the Premises delivered
in each case twelve (12) months prior to the forty-eighth (48th), the seventy-second
(72nd) and the ninety-sixth (96th) month of this Lease as measured from the
Rent Commencement Date provided, however, to the extent that the Tenant reduces the Premises by
less than one (1) full floor and as a result of such partial floor reduction a demising wall
(and/or Common Area corridor) is required in order for the Landlord to lease the Contraction
Premises, the Tenant shall be responsible at its sole cost and expense to pay all cost to
construct, using Building Standard finishes and materials, only so much of such demising wall
(and/or Common Area corridor) as is required pursuant to Applicable Law to demise the retained
portion of the Premises from the Contraction Premises and accommodate a multi-tenant environment on
such applicable floor. In
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the event of a partial floor contraction, the Tenant shall provide the
Landlord by ninety (90) days of the Tenant’s election to contract, at the Tenant’s sole cost and
expense, with plans and specifications describing such demising wall (and/or Common Area corridor)
and the Landlord shall have thirty (30) days after receipt thereof to reasonably approve such plans
or provide comments thereto which approval shall not be unreasonably withheld, conditioned or
delayed; provided, however, the Landlord shall require that any such demising wall (and/or Common
Area corridor) be consistent in design and finish with other multi-tenant floors of the Building.
The Tenant at its sole cost and expense shall reimburse the Landlord for the applicable demising
costs within thirty (30) days after receipt of the Landlord’s written request for the same
accompanied by reasonably detailed supporting documentation evidencing completion of such demising
work. The contractor to complete such demising work shall be the General Contractor selected
pursuant to the Work Letter, or any other general contractor selected by the Landlord and
reasonably approved by the Tenant, which approval shall not be unreasonably withheld, delayed or
conditioned. At the Landlord’s election the work necessary to construct the demising wall (and/or
Common Area corridor) shall be accomplished by the Tenant. The Contraction Rights are not
cumulative and should the Tenant fail to exercise any of the Contraction Rights, then any such
Contraction Right shall lapse and shall be of no further force and effect on such occasion;
provided, however, that the subsequent Contraction Rights shall remain un-affected and shall
continue in force and effect, subject to the terms hereof as long as the Tenant is Without Default.
Coincident with the exercise of the Tenant’s Contraction Right, in addition to the applicable
demising costs, if any, as provided for hereinabove, the Tenant shall pay to the Landlord upon each
such contraction a fee (the “Contraction Fee”) in a sum equal to the un-amortized portion of the
Tenant Improvement Allowance and real estate commissions calculated on a prorata basis as to such
portion of the Premises as are being relinquished, amortized on a straight line basis determined as
of the date such Contraction Premises are relinquished. Upon written request from the Tenant, the
Landlord shall provide to the Tenant within twenty (20) days of such written
request the Landlord’s calculation of the applicable Contraction Fee, which calculation the Tenant
shall have the right to review and verify. The parties agree that each of the Landlord and the
Tenant shall treat the Contraction Fee as liquidated damages and under no circumstances shall
either of such parties account for or book the Contraction Fee as Rent. Unless accompanied by the
Contraction Fee, the Tenant’s notice of intent of its election of the Contraction Rights shall be
of no force and effect and the Tenant shall remain responsible for the Rent as if the Tenant had
not attempted to exercise any Contraction Right. Should the Tenant elect the Contraction Rights
afforded herein, then such contraction shall take effect with respect to the Rent due on the
commencement of the forty-ninth (49th) month, seventy-third (73rd) month or
the ninety-seventh (97th) month of this Lease, as measured from the Rent Commencement
Date and, coincident therewith, the Landlord shall be free of any responsibility to provide parking
at the Parking Ratio related to any of such Contraction Premises, and in such event, the Landlord
shall elect, in its sole discretion, which of the Parking Facilities other than the Building
Parking Facilities occupied by the Tenant’s employees, including without limitation, the Relocation
Employees, shall be affected by the reduction of parking spaces. Should the Tenant ever elect any
of the Contraction Rights, then, by such act, it shall render null and void the Tenant’s rights and
options for right of first offer described in Section 3.04 of this Lease.
Section 3.09 — Termination Rights
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Provided that the Tenant is Without Default, then the Tenant shall have the right to terminate
this Lease (the “Termination Right”) by providing to the Landlord no later than seventy-two (72)
months after the Rent Commencement Date written notice of the Tenant’s election to terminate this
Lease (the “Termination Notice”). Failure to provide the Termination Notice in a timely fashion as
set forth herein shall render the Tenant’s Termination Right null and void in all respects. If the
Termination Right is timely exercised and the Tenant continues to be Without Default, the
termination shall become effective as of the end of the eighty-fourth (84th) month
following the Rent Commencement Date (the “Termination Date”). If the Tenant exercises its
Termination Right, the Tenant shall pay to the Landlord a fee a sum equal to (i) Thirty percent
(30%) of the sum of the Tenant Improvement Allowance advanced by the Landlord, plus (ii) a sum
equal to the total tenant improvement allowances advanced by the Landlord with respect to other
Rentable Area added to the Initial Premises through the effective date of the Termination Right,
with any of such tenant improvement allowances being amortized over such period of time as Rents
are due with respect thereto, amortized on a straight line basis through the remaining Initial
Term, plus (iii) a sum equal to Thirty percent (30%) of all real estate commissions paid by the
Landlord to real estate brokers with respect to the Initial Premises, plus (iv) a sum equal to the
total leasing commissions advanced by the Landlord with respect to other Rentable Area added to the
Initial Premises through the effective date of the Termination Right, with any of such leasing
commission being amortized over such period of time as Rents are due with respect thereto,
amortized on a straight line basis through the remaining Initial Term, plus (v) six (6) months of
the Base Rent and any Additional Rent due at the rates then in effect with respect to the Premises
at the inception of the eighty-fourth (84th) month following the Rent Commencement Date under this
Lease (collectively, the “Termination Fee”). For purposes hereof the parties agree that the
Termination Fee shall be paid by the Tenant as follows: (a) the sum of [**REDACTED**] of the Termination Fee shall be paid to the Landlord upon Tenant’s delivery
of the Termination Notice (the “First
Payment”) and, (b) the remainder of the Termination Fee shall be paid to the Landlord upon the
Termination Date (the “Second Payment”). The Tenant’s Termination Notice shall be of no force and
effect and this Lease shall continue in accordance with its terms in the event that either the
First Payment is not paid upon the date of the Termination Notice or the Second Payment is not
timely paid on or before the Termination Date. Upon written request from the Tenant the Landlord
shall provide to the Tenant within twenty (20) days of such written request the Landlord’s
calculation of the Termination Fee. The parties agree that each of the Landlord and the Tenant
shall treat the Termination Fee as liquidated damages and under no circumstances shall either of
such parties account for or book the Termination Fee as Rent.
ARTICLE IV
RENT
RENT
Section 4.01 — Base Rent
The Tenant agrees to pay, as the Base Rent for this Lease and use of the Premises, as they are
from time to time constituted, commencing on the Interim Rent Commencement Date or the Rent
Commencement Date, as the case may be, and continuing through the Initial Term as provided under
Section 3.01 hereinabove, an amount per square feet of Rentable Area of the
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Premises based upon the
annual rental rates specified below, multiplied by the Rentable Area of the Premises, and applied
to the specific time periods specified below (the “Base Rent”). The annual rental rates set forth
below shall apply to the Initial Premises (as constituted on the Effective Date) and shall commence
on the Term Commencement Date, except with respect to Interim Rent. Any space added to the
Premises, as may occur from time to time pursuant to Article III hereinabove, shall bear annual
rental rates as stated in such Article III.
| Amount of Annual rental | ||||
| Lease Months | Rate for Initial Premises | |||
Months 1 — 12 |
[**REDACTED**] | |||
Months 13 — 24 |
[**REDACTED**] | |||
Months 25 — 36 |
[**REDACTED**] | |||
Months 37 — 48 |
[**REDACTED**] | |||
Months 49 — 60 |
[**REDACTED**] | |||
Months 61 — 72 |
[**REDACTED**] | |||
Months 73 — 84 |
[**REDACTED**] | |||
Months 85 — 96 |
[**REDACTED**] | |||
Months 97 — 108 |
[**REDACTED**] | |||
Months 109 — 120 |
[**REDACTED**] | |||
Months 121 — 132 |
[**REDACTED**] | |||
All rental rates are full service (except as set forth herein) rates that include parking
(with respect to the Initial Premises) for the Tenant as described herein and are shown without
regard to the applicable Additional Rent and without regard to all required Sales Taxes (as defined
hereinbelow) on all charges deemed as rents under Florida law in effect from time to time. All
monthly periods show the monthly intervals computed from the Term Commencement Date. By way of
example without limitation, if the Term Commencement Date were January 1, 2012, then no Base Rent
shall be due for the months of January 2012 through December 2012. Interim Rent
shall be due and payable in advance from the Interim Rent Commencement Date through the Term
Commencement Date, at which time the twelve (12) month Rent abatement period aforesaid shall be in
effect. At the end of such twelve (12) month period, the Rent Commencement Date shall occur as
described in Section 1.01(iii). All Interim Rent (including without limitation Interim Rents
attributable to a Tenant Delay, if applicable), shall be due and payable in accordance with the
terms of this Lease, including the Work Letter.
Further, the Tenant shall pay in advance on the Term Commencement Date, the Rent due for the
Initial Partial Month, if any, which shall equal a prorata portion (based on a per diem
365-day/year basis) of the amount of the monthly Base Rent due for the first day of the thirteenth
(13th) month of the Initial Term as specified hereinabove.
Section 4.02 — Additional Rent
(a) The Tenant shall pay as the Additional Rent for each Escalation Year the Tenant’s Share of
the increase, if any, in the Landlord’s Operating Expense over the Operating
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Expense Base, plus all
applicable sales tax.
(b) The term “Operating Expense Base” shall mean the total Operating Expense for the Base
Calendar Year.
(c) “Operating Expense” shall consist of all expenses, costs and accruals (excluding
therefrom, however, specific costs billed to or otherwise incurred for the particular benefit of
specific tenants of the Development) of every kind and nature, computed on an accrual basis,
incurred or accrued in connection with, or relating to, the operation, repair, maintenance or
improvement of the Development during each Calendar Year, including, but not limited to, the
following:
(i) Services which the Landlord is required to provide under this Lease, including, but not
limited to, the services provided under Sections 5.01 and 5.05.
(ii) Wages, salaries and related expenses of all on-site personnel directly engaged in the
operation and maintenance and security of the Development and the costs of a property management
office in the Development.
(iii) All supplies and materials used in the operation and maintenance of the Development.
(iv) Cost of utilities for the Development (collectively, the “Utilities Costs”), including
water and power, heating, lighting, air conditioning and ventilating the Development (including all
Common Areas and Service Areas).
(v) Cost of all maintenance and service agreements for the Development and the equipment
therein, including, without limitation, alarm service, window cleaning and elevator maintenance.
(vi) Accounting costs, including the costs of audits by certified public accountants.
(vii) The cost of all insurance, including but not limited to (1) fire, casualty, liability
and rental abatement insurance applicable to the Development and the Landlord’s personal property
used in connection therewith and (2) the cost of any commercially reasonable deductions [not to
exceed Fifty Thousand and No/100 Dollars ($50,000)] which the Landlord incurs in connection with
any claim under such insurance (collectively, the “Insurance Costs”).
(viii) Cost of repairs, replacements and general maintenance (excluding repairs and general
maintenance paid by proceeds of insurance or by the Tenant or other third parties), including,
without limitation, any Cost Saving Improvements and any associated study.
(ix) Any and all costs related to the Common Areas, including but not limited to sidewalks and
landscaping on the Development site.
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(x) All of the Landlord’s Taxes, including all reasonable costs and expenses associated with
attorneys, accountants, appraisers and other consultants to challenge any such Taxes.
(xi) Amortization of the cost, together with reasonable financing charges, of capital
investment items which are primarily for the purpose of reducing costs or promoting safety (“Cost
Saving Improvements”). All such costs shall be amortized over the useful life of the capital
investment items with the useful life and amortization schedule being determined by the Landlord in
its commercial discretion reasonably exercised (in no event to extend beyond the useful life of the
Development).
(xii) All management fees for the Development not in excess of four percent (4%) of the annual
gross revenue of the Development.
(xiii) The cost of the Required Capital Improvements which such costs shall be amortized over
the useful life of the capital investment items with the useful life and amortization schedule
being determined by the Landlord in its commercial discretion reasonably exercised (in no event to
extend beyond the useful life of the Development). “Required Capital Improvements” shall mean any
capital improvements of any replacements made in or to any portion of the Development or
improvements located thereon, including, without limitation, the Building, the Building Land, the
Building Parking Garage, and the Common Areas, (excluding the leasable area of the Office Section
and the Mezzanine) in order to conform to any law or finance, rule, regulation or order of any
governmental authority having jurisdiction over the Building, the Building Land, the Building
Parking Garage, the Common Areas, and the Development, as the case may be, and replacements of the
Required Capital Improvements at the end of their useful life.
(xiii) The costs and expenses of the Concierge Parking Services.
(d) Notwithstanding anything contained in this Lease to the contrary, including,
without limitation, the items expressly set forth in Section 4.02(c) of this Lease, Operating
Expense shall not include (1) leasing commissions, costs, disbursements and other expenses incurred
for leasing, renovating or improving space for tenants, whether such work is performed for the
initial occupancy of such tenant or thereafter, and any cash or other consideration paid by the
Landlord on account of or with respect to or in lieu of the tenant work described in the foregoing
clause, and, in addition thereto, “takeover expenses” (i.e., expenses incurred by the Landlord with
respect to space located in another building or expenses of any kind in connection with the leasing
of space in the Development), (2) costs (including permit, license and inspection fees) incurred in
renovating, improving, decorating, painting or redecorating vacant space in the Office Section or
space for tenants, (3) the Landlord’s cost of electricity or other services sold to tenants for
which the Landlord is to be reimbursed as a charge in addition to the rent and additional rent
payable under leases with other tenants, (4) costs in connection with services or other benefits
which are provided to another tenant or occupant of the Development and which do not benefit the
Tenant, (5) costs incurred by the Landlord for alterations that are considered
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capital improvements
and replacements under generally accepted accounting principles consistently applied, (6)
depreciation on the Development, including the Development and equipment therein, (7) costs of a
capital nature including capital improvements, capital repairs, capital equipment and capital
tools, as determined under generally accepted accounting principles consistently applied, (8) costs
incurred because the Landlord or another tenant violated the terms of any lease, (9) any costs
associated with (i) the purchase or rental of furniture, fixtures or equipment for the Landlord’s
offices, including marketing and leasing offices, (ii) entertainment expenses and travel expenses
of the Landlord, its employees, agents, partners and affiliates, (iii) executive salaries and
amounts paid to subsidiaries or affiliates of the Landlord for management or other services on or
to the Development or for supplies or other materials, to the extent that the costs of the
services, supplies or materials exceed the competitive costs of the same such services, supplies or
materials not provided by a subsidiary or affiliate, (10) ground rents and interest and
amortization of indebtedness and any costs of financing or refinancing, (11) rentals and related
expenses incurred in leasing air conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, (12) items and services for which the Tenant reimburses the
Landlord or pays third parties or that the Landlord provides selectively to one or more tenants of
the Building other than the Tenant without reimbursement, (13) except to the extent of the
Landlord’s insurance deductible, the cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation, (14) any costs, fines or penalties incurred because the Landlord
violated any applicable law, (15) costs incurred to test, survey, cleanup, contain, xxxxx, remove
or otherwise remedy hazardous wastes or asbestos-containing materials on or from the Development,
(16) costs incurred in connection with the sale or change of ownership of the Development,
including brokerage commissions, attorneys’ fees, accountants’ fees, closing costs, title insurance
premiums, transfer taxes and interest charges, (17) costs, fines, interest, penalties, legal fees
or costs of litigation incurred due to the failure to pay bills when due, (18) taxes on the
personal property of other tenants, (19) costs incurred by the Landlord for trustees’ fees or
partnership or corporate organizational expenses, (20) costs of utilities directly metered to
tenants (including the Tenant) of the Development and payable separately by such tenants, (21)
increased insurance premiums caused by the Landlord’s or any other tenant’s uses, (22) costs
incurred for any items to the extent covered by any warranty, (23) fees paid for asset management
services relating to the Building, (24) costs arising from the Landlord’s or another tenant’s
negligence or intentional acts, (25) fines, penalties, late payment charges, and costs
incurred by the Landlord due to violations of law by the Landlord pertaining to the
Development, (26) costs (including in connection therewith all attorneys’ fees and costs of
settlement, judgments, and payments in lieu thereof) arising from claims, disputes, or potential
disputes in connection with potential or actual claims, litigation, or arbitration, pertaining to
the Landlord and/or the Development, (27) any franchise, excise, income, gross receipts, profits,
or similar tax assessed on or relating to the income of the Landlord, any capital levy, estate,
gift, inheritance, transfer, or similar tax assessed by reason of any inheritance, devise, gift, or
transfer of any estate in the Development by the Landlord, and any impact fees or other types of
fees, taxes, or assessments levied in connection with the development and construction of the
Development or any portion thereof or special assessments levied prior to the Term Commencement
Date, (28) the Landlord’s general corporate overhead and general and administrative expenses,
including costs relating to accounting, payroll, legal and computer services which are partially or
totally rendered in locations outside the
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Development, (29) advertising and promotional
expenditures, including but not limited to the Development or the Building promotional gifts,
events or parties for existing or future occupants, or other tenants’ signs costs arising from the
Landlord’s charitable or political contributions, (30) costs incurred in removing and storing the
property of former tenants or occupants of the Development, (31) the cost of any labor, service,
materials, supplies or equipment, which is in excess of the prevailing market rate for such labor,
service, materials, supplies or equipment at the time in the comparable buildings, (32) any costs
of operating, maintaining, cleaning, managing, securing or otherwise providing services to the
Development or any part thereof at any quality level which materially exceeds that typically being
provided by the comparable buildings at the time, unless such higher quality level is expressly
required by the terms of this Lease, (33) the cost of any parties, ceremonies or other events for
tenants or third parties which are not tenants of the Development, whether conducted on the
Development or in any other location, (34) reserves of any kind, including but not limited to
replacement reserves, and reserves for bad debts or lost rent or any similar charge not involving
the payment of money to third parties, (35) costs incurred by the Landlord in connection with
rooftop communications equipment of the Landlord or other persons, tenants, or occupants of the
Development, (36) payment of any management fee, whether paid to the Landlord or any outside
managing agent, in excess of four percent (4%) of the amount of gross revenues for the Development
(excluding sales tax), (37) any costs for which the Landlord has been reimbursed or receives a
credit, refund or discount, provided if the Landlord receives the same in connection with any costs
or expenditures previously included in Operating Expense for a calendar year, the Landlord shall
immediately credit against Base Rent any overpayment for such previous calendar year, (38) any
increases in Operating Expense resulting from a change of policy or practice in the operation of
the Development shall be included in Operating Expense for a particular calendar year only if the
increase is being charged to all of the similarly situated tenants of the Development; and (39)
costs for which the Landlord has been compensated by a management fee. Notwithstanding anything
herein to the contrary, subject to the gross up requirements of this Lease, the Landlord shall in
no event recover more than the actual Operating Expense incurred by the Landlord, except to the
extent any such sums are accounted for through the reconciliation process.
(e) The Tenant shall have the right, upon reasonable notice and during Business Hours, to
inspect the Landlord’s books and records with respect to all or any Operating Expense at the
offices where such books and records are kept, which offices shall, at all times, be located
in the Building; provided that such right, as well as the Tenant’s right to dispute the
payment of any Operating Expense item, shall expire on the last day of the 12th month
following receipt of the Landlord’s Statement, as defined hereinbelow. In the event that the
Tenant’s inspection demonstrates that the Landlord has overstated any Operating Expense, the
Landlord shall reimburse the Tenant for any overpayment of Tenant’s Share of such Operating Expense
within thirty (30) days of the Landlord’s receipt of reasonably sufficient documentation of such
overstatement from the Tenant. In the event that the Tenant’s inspection indicates that any
Operating Expense is overstated by more than five percent (5%), then (i) the Landlord shall
reimburse the Tenant for such overstated Operating Expense plus the reasonable cost of such audit,
and (ii) notwithstanding anything contained in this Lease to the contrary, the Tenant shall be
permitted to conduct an inspection of and dispute the Operating Expense for each prior year during
the Term, including the Base Calendar Year, provided, however, the Tenant may not
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conduct an
inspection of or dispute the payment of any Operating Expense for any year that the Tenant has
previously conducted an inspection. The Tenant agrees that the Tenant shall not employ directly or
indirectly any third party auditor or consultant to audit Operating Expenses whose fees are in any
way results based or otherwise contingent.
(f) Notwithstanding any other provision herein to the contrary, it is agreed that if less than
ninety-five percent (95%) of the Rentable Area in the Building is leased during any Calendar Year,
Operating Expense for such Calendar Year shall be grossed up to the amount such Operating Expense
would be if ninety-five percent (95%) of the Rentable Area in the Building had been so leased.
(g) The Additional Rent shall be paid and adjusted with reference to a Calendar Year. On or
before March 20th of the first Escalation Year during the Term and on or before March
20th of each Escalation Year thereafter, the Landlord shall notify the Tenant of the
estimated Additional Rent for the Escalation Year. The estimate shall be reasonable and shall be,
upon request, accompanied by reasonable particulars of its calculation. If the Landlord shall fail
to give the Tenant notice of estimated amounts due for any Calendar Year, then the Tenant shall
continue making the monthly estimated Operating Expense payment in accordance with the estimate for
the previous Calendar Year until the new estimate is provided.
(h) The Additional Rent based on the Landlord’s estimate shall be calculated on an annual
basis but paid on a monthly basis over each Escalation Year. One-twelfth (1/12th) of
the annual Additional Rent based on the Landlord’s estimate shall be paid in equal monthly
installments in advance commencing on the first day of the first Calendar Month after the Landlord
has provided the notice described in subsection (g) hereinabove. Until such day, the Tenant shall
be obligated to pay to the Landlord the monthly installment of the Additional Rent for the previous
Escalation Year (or zero if there is no previous Escalation Year). Within thirty (30) days after
the Landlord has provided the notice described in subsection (g) hereinabove, the Tenant shall also
pay to the Landlord in a lump sum the difference between (i) the total Additional Rent for the
Calendar Months of the current Escalation Year that have elapsed prior to said date and (ii) the
monthly installments of the Additional Rent, if any, that have actually been paid to the Landlord
during the current Escalation Year prior to said date. The Landlord may re-estimate the amount of
the Additional Rent for any Escalation Year or fractional portion thereof, and the Landlord shall
notify the Tenant of such re-estimate and shall fix new equal
monthly installments for the remainder of such Escalation Year so that, after crediting the
installments paid by the Tenant on the basis of the previous estimate(s), all the re-estimated
Additional Rent will be paid during the remainder of such Escalation Year. Notwithstanding
anything in this Lease to the contrary, in no event shall the Tenant’s Share of the total Operating
Expense consisting of Controllable Expenses (as defined hereinbelow) passed on to the Tenant as the
Additional Rent hereunder increase annually by an amount in excess of four and one-half percent
(41/2%) per year annually, non-compounded, over the Term. “Controllable Expenses” with respect to
any Escalation Year shall mean the total Operating Expense for such Escalation Year, as set forth
herein, less allowable expenses as set forth herein for (i) Utilities Costs, (ii) the
Landlord’s Taxes and governmental impositions, (iii) the Insurance Costs and (iv) costs incurred by
the Landlord in preparation for Force Majeure Events (including removing or restoring
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measures
implemented by the Landlord in connection with such preparation) to the extent that such costs and
expenses are not covered by insurance.
(i) Within one hundred (100) days after the end of each such Escalation Year or fractional
portion thereof, the Landlord shall deliver to the Tenant a detailed statement (the “Landlord’s
Statement”) of the actual Additional Rent during such Escalation Year or fractional portion thereof
and a calculation of the excess paid by, or the deficiency owing, from the Tenant which shall be
accounted for and reported in accordance with generally accepted accounting principles consistently
applied. In addition, the Landlord’s Statement shall be itemized by expense categories and contain
a standard of detail which is reasonably similar in itemization and categorization to that which is
customarily prepared in the Jacksonville, Florida downtown rental market for Class A commercial
office property. Within thirty (30) days after the receipt of the Landlord’s Statement, either (i)
the Tenant shall pay the Landlord the amount of the deficiency or (ii) the Landlord shall credit to
the Tenant, against installments of the Additional Rent next coming due, the amount of the excess
Additional Rent paid by the Tenant. The Landlord’s failure to render, within one (1) year following
any Calendar Year for which such Landlord’s Statement reconciles, the Landlord’s Statement with
respect to any Calendar Year, shall prohibit the Landlord from thereafter rendering a Landlord’s
Statement with respect to such Calendar Year, but only such Calendar Year and preclude a recovery
of any shortfall with respect to the Tenant’s payment of the Tenant’s Share of Operating Expense as
to such Calendar Year only.
Subject to the foregoing paragraph, the Tenant’s obligation to pay the actual Additional Rent
shall survive the termination of this Lease, and the Security Deposit shall not be returned to the
Tenant until the Tenant pays all the actual Additional Rent. If any excess Additional Rent paid
cannot be credited against future installments because this Lease has expired or has been
terminated, the excess shall be treated as an addition to the Security Deposit. If the Landlord
has already returned the Security Deposit to the Tenant after the end of the Term, the Landlord
shall pay to the Tenant such additional sum due within thirty (30) days of determination of such
amount.
Section 4.03 — Sales Tax
The Tenant further agrees to pay in addition to, but not in lieu of, the Rent, any and all
sales and use tax now or hereafter imposed by any governmental entity upon, applicable to, or
measured by or on the Rent or any other charges payable to the Landlord under this Lease (the
“Sales Tax”). The Tenant shall pay to the Landlord concurrently with each such payment of Rent
such other charges hereunder, the amount of Sales Tax attributable to the payment being made to the
Landlord. If any Sales Tax is required to be paid to the governmental taxing authority directly by
the Landlord, whether during the Term of this Lease or subsequent to the termination of this Lease
(if such Sales Tax is levied on the Rent paid by the Tenant), then the Landlord shall upon demand,
be fully reimbursed by the Tenant for such payment within thirty (30) days of written demand for
such payment.
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Section 4.04 — Accrual and Apportionment of Rent
The Rent shall be considered as accruing from day to day hereunder and shall accrue with
respect to the Premises, the Expansion Space, the Additional Space and any other portion of the
Building added to the Premises from time to time at the times and as set forth herein. If the
Initial Term of this Lease shall begin on a day other than January 1st or end on a date
other than December 31st, any Additional Rent for the year in which the Rent
Commencement Date or the date of expiration of the Term shall occur, as the case may be, shall be
apportioned in that percentage which the number of days in the period from the Rent Commencement
Date to December 31st or from the first scheduled Rent payment date of such lease year
to such date of expiration, both inclusive as the case may be, shall bear to the total number of
days in the Calendar Year in which such expiration occurs.
Section 4.05 — Definition of Rent
The term “Rent” collectively refers to the Base Rent and the Additional Rent and such other
charges and sums as are due hereunder including without limitation all charges due under Addendum
“1” and Addendum “2” relating to ATM rights and Sign rights. The term “Additional Rent” is
sometimes used herein to refer to any and all sums other than Base Rent payable by the Tenant
hereunder, including, but not limited to, sums payable on account of default by the Tenant. The
Tenant’s obligations to pay Rent are covenants independent of the Landlord’s obligation under this
Lease, subject to the provisions of this Lease.
Section 4.06 — Collection
Any Additional Rent shall be collectible by the Landlord in the same manner as the Base Rent,
and except as otherwise provided herein, the Tenant shall have the same notice and cure periods for
the non-payment of the Additional Rent as the Tenant has hereunder for the non-payment of the Base
Rent, and the Landlord shall have the same remedies for non-payment of the Additional Rent as the
Landlord has hereunder for non-payment of the Base Rent.
Section 4.07 — Limited Set-Off
All Rent shall be payable without deduction, set-off, abatement or diminution except as
otherwise specifically set forth in this Lease. The Tenant hereby expressly waives the benefits of
any and all laws permitting the Tenant to claim a set-off against the Rent for any cause
whatsoever, except as set forth hereinafter.
Section 4.08 — Payment of Rent
All Rent shall be payable in lawful money of the United States and shall be paid to the
Landlord or to such party as the Landlord may direct by written notice delivered to the Tenant at
least thirty (30) days prior to the change in such party or designated address to receive delivery
becoming effective. All sums payable by the Tenant hereunder by check shall be obtained against a
financial institution located in the United States of America. The Landlord hereby
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authorizes and
directs the Tenant to pay all Rent to El Ad Florida, LLC., Lockbox #534329, X.X. Xxx 000000,
Xxxxxxx, Xxxxxxx 00000-0000 or via ACH Wire Transfer (instructions to be provided by Landlord), or
to other designated address that the Landlord may require upon notice to the Tenant.
Section 4.09 — Due date and Overdue Rent
All Base Rent and regularly scheduled Additional Rent shall be payable within five (5)
Business Days of receipt of the Landlord’s written invoice. All payments of Additional Rent that
are not regularly scheduled shall be payable within thirty (30) days of receipt of the Landlord’s
written invoice. If any of the Rent remains unpaid after the date due, then such sum shall bear
interest from such due date until paid at the Stipulated Rate of Interest. If any of the Base Rent
or regularly scheduled Additional Rent remains unpaid for five (5) Business Days after the date
due, the Tenant shall pay an additional penalty of five percent (5%) of such overdue Rent (but not
including any interest due under the preceding sentence). In addition, if any Additional Rent
which is not regularly scheduled remains unpaid for thirty (30) days after the date due, the Tenant
shall pay an additional penalty of five percent (5%) of such overdue Rent (but not including any
interest due as set forth hereinabove). No such penalty or interest charged or collected by the
Landlord shall constitute an election of remedies or a waiver of any rights or remedies available
to the Landlord on account of the overdue Rent.
Section 4.10 — Security Deposit
(a) During the Term the Tenant and its affiliates (collectively, the “Tenant Parties”) shall
maintain (i) a minimum stockholder’s equity (as reported in the Tenant Parties financial statements
filed with the Securities and Exchange Commission, or as otherwise filed with federal agencies, and
publically available) of the Tenant Parties of at least Two Hundred Fifty Million and No/100
Dollars ($250,000,000.00) (the “Net Worth Requirement”) and (ii) its status as “well capitalized,”
as such term is defined in the Federal Deposit Insurance Corporation Improvement Act of 1991, as
amended from time to time (the “Capitalization Requirement”). So long as the Tenant Parties
maintain a net worth at least as great as the Net Worth Requirement and the Tenant satisfies the
Capitalization Requirement, then the Tenant shall not be required to provide the Landlord with a
Security Deposit. During the first five (5) years of the Initial Term, commencing upon the Rent
Commencement Date, if the Tenant Parties fail to satisfy the Net Worth Requirement or the Tenant
fails to satisfy the Capitalization Requirement, then the Tenant shall, so long as the Net Worth
Requirement or the Capitalization Requirement is not being met, maintain with the Landlord a
Security Deposit in an amount equal to the sum of three (3) months of Base Rent then due at the
time of such failure to satisfy any of the above requirements. During the sixth (6th)
through tenth (10th) years of the Initial Term, commencing upon the Rent
Commencement Date, if the Tenant Parties fail to satisfy the Net Worth Requirement or the
Tenant fails to satisfy the Capitalization Requirement, then the Tenant shall, so long as the Net
Worth Requirement or the Capitalization Requirement is not being met, maintain with the Landlord a
Security Deposit in an amount equal to the sum of two (2) months of Base Rent then due at the time
of such failure to satisfy any of the above requirements. Upon the occurrence of any Event of
Default by the Tenant, the Landlord may, from time to time, without prejudice to
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any other remedy, use the Security Deposit to the extent necessary to make good any arrears of
the Rent, or to pay any sums owed to the Landlord under this Lease, or any damage, injury, expense
or liability caused to the Landlord by such default. The Security Deposit shall not be considered
an advance payment of the Rent or a measure of the Landlord’s damages in case of default by the
Tenant. The Tenant shall not be entitled to receive any interest on the Security Deposit, and the
Landlord may co-mingle the same with other monies of the Landlord to the extent allowed by
Applicable Law then in effect. If the Landlord shall ever use the Security Deposit to pay the sums
described hereinabove, and if this Lease has not terminated, the Tenant shall immediately deposit
with the Landlord an additional Security Deposit equal to the amount so used, which sum shall also
be considered the Security Deposit hereunder. The Tenant shall not assign or encumber the Security
Deposit in any manner, and the Landlord shall not be bound by any such assignment or encumbrance.
(b) If the Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, then the Security Deposit shall be returned to the Tenant
(without regard to any assignment or encumbrance of the same) within thirty (30) days after the
later of:
(i) the termination of this Lease (provided such termination is not the result of an Event of
Default by the Tenant); and
(ii) payment of all sums due to the Landlord.
(c) Upon sale of the Building, the Landlord shall transfer the Security Deposit to the
purchaser and provided that the purchaser assumes, in writing, the obligations and covenants of the
Landlord under this Lease, the Landlord shall be released by the Tenant upon said transfer from all
liability for the return of the Security Deposit and the Tenant agrees to look solely to the
purchaser for the return of the Security Deposit.
ARTICLE V
SERVICES, UTILITIES AND EXPENSES
SERVICES, UTILITIES AND EXPENSES
Section 5.01 — Building Services
(a) The Landlord agrees to furnish to the Tenant, Premises, Common Areas and Building, as
applicable, during the Term of this Lease, the following services:
(i) Cold water for drinking, lavatory, toilet, and ordinary cleaning purposes at those points
of supply provided for general use of other tenants in the Office Section (or the First Floor
Space, if applicable).
(ii) Subject to all binding federal and local energy conservation regulations, heating,
ventilation and air-conditioning during Business Hours (including such service to the Mezzanine on
the day after Thanksgiving from 7:00 A.M. until 6:00 P.M.), as required to maintain an inside
temperature between seventy degrees (70o) and seventy-four degrees (74o) F
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DB and relative humidity between forty-five percent (45%) and fifty-five percent (55%). The
Landlord shall use its best efforts to cause the Premises and Common Areas to comply (1) with
all applicable state and local building codes, the most recent standards established by the
American Society of Heating, Refrigeration, and Air Conditioning Engineers (the “ASHRAE”) for
high-rise office buildings, and standards customarily adopted for Class A high-rise buildings and
(2) with the ASHRAE Standard 62, latest edition.
(iii) Routine maintenance, painting and electric lighting service for all Common Areas and
Service Areas of the Development and facilities related thereto.
(iv) Janitorial service to the Premises and the Mezzanine on a five (5) day a week basis,
exclusive of Holidays in accordance with the specifications as set forth in Exhibit “F”, including,
but not limited to, any and all restrooms located within the Premises. Notwithstanding the
foregoing, the Landlord understands that the Tenant has high standards for building services.
Accordingly, at any time during the Term upon sixty (60) days advance notice to the Landlord, the
Tenant shall have the continuing right, provided that such right shall not be unreasonably
exercised (the exercise of such right for security purposes shall not be deemed unreasonable), to
provide thereafter, directly or indirectly, cleaning contractors of its own choice to clean the
Premises (the “Tenant Janitors”), the cost of which shall be paid no less frequently than monthly
by the Tenant (the “Tenant Cleaning Costs”). The Tenant shall be entitled monthly to a credit
against its share of the cost of the Additional Rent for such month in an amount equal to the
Tenant Cleaning Cost actually borne by the Tenant for such monthly period, but in no event to
exceed that portion of the Operating Expense for janitorial services for the Building on a per
square foot of Rentable Area as applied to the Premises. Upon receipt of the Tenant’s notice of
its election to provide the Tenant Janitors, the Landlord shall be excused from any obligation to
provide janitorial services to the Premises until thirty (30) days after such time that the
Landlord receives notice in writing that the Tenant elects for the Landlord to resume delivery of
the janitorial services for the Premises. Notwithstanding anything to the contrary, should the
Landlord determine, in its commercial reasonable judgment, that the Tenant Janitors shall fail to
provide on a consistent basis janitorial services to the Premises in accordance with the
requirements as set forth in Exhibit “F”, then the Landlord shall deliver written notice to the
Tenant of such deficiencies with specificity, and the Tenant shall have thirty (30) days after
receipt of such notice to cause the Tenant Janitors to rectify the enumerated deficiencies. If, in
the Landlord’s commercially reasonable judgment, the Tenant Janitors fail to timely rectify such
deficiencies or fail to maintain such improved service for a minimum of six (6) months after each
notice from the Landlord, then upon written notice from the Landlord to the Tenant, the Tenant
shall discharge the Tenant Janitors within no greater than forty-five (45) days of receipt of such
notice and the Landlord shall resume janitorial services to the Premises, coincident with such
discharge at the cost of which shall be paid as an Operating Expense.
(v) Building Standard fluorescent lighting composed of 2’ x 4’ fixtures, to the extent set
forth in the Tenant’s Plans and Specifications (as described in the Work Letter), subject, however,
to the requirements of Section 10.01.
(vi) Building Standard light fixtures as well as any starters, ballasts and bulbs
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for any Building Standard light fixture or any starters, ballasts and bulbs for any Tenant light fixture,
which utilizes the same starters, ballasts and bulbs as the Building Standard light fixture.
For the purpose of this section Building Standard light fixtures shall be defined as 2’x4’ lay
in fixture with parabolic lens, with 4 ft T-8 fluorescent bulb and 2’x2’ lay in fixture with
parabolic lens, with T-8 U-Tube fluorescent bulb. Replacement and/or maintenance of any other
light fixtures as well as starters, ballasts and bulbs for such light fixtures, located in the
Tenant’s Premises shall be at the Tenant’s expense.
(vii) Electricity to the Common Areas and Service Areas of the Development, and to the
Premises in quantities necessary for normal office use and for the Building Standard fluorescent
lighting.
(viii) After Business Hours, weekend (after Business Hours) and Holiday heating and air
conditioning on the terms and conditions as set forth in Section 5.07.
(ix) Access control to the Building during non-Business Hours, including security cameras
located at the main Building and Building Parking Garage entry points, and an on-site security
guard at hours to be determined by the Landlord; provided, however, normal access to the Building
shall be available to the general public on the day after Thanksgiving from 7:00 A.M. until 6:00
P.M.
(x) Extermination and pest control at appropriate intervals, which work may be performed
during Business Hours.
(xi) A multi-zoned, multiplexed ADA fire alarm system per NFPA requirements.
(xii) An emergency generator to operate the Building emergency lighting, elevators, card
access system, fire alarm system and communications system during power outages, subject to the
provisions of Section 15.11 of this Lease.
(xiii) Full sprinkling of the Building. All critical alarms, e.g., smoke detectors, fire
alarms, sprinkler flows, and the like, to be monitored by a certified monitoring company or the
on-site security guards. Upon detection of any alarms or signals, the Landlord or such security
guard (or such monitoring service, if applicable) shall immediately contact the appropriate
Building and Tenant emergency and management personnel for immediate response during and after
Business Hours.
(xiv) Public elevator service providing adequate service to the floors on which the Premises
are situated, including freight elevators, with at least one (1) passenger elevator per elevator
bank in which the Premises are located and one (1) freight elevator being in service at all times.
(xv) Reasonable use of all intra-Building telephone and network cabling.
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(xvi) Non-exclusive access to and use of the loading dock facilities.
(xvii) Access to and use of the Building’s stairwells for travel by the Tenant and
its employees between the floors on which the Tenant is a full floor tenant. The Tenant, at
the Tenant’s sole cost and expense, shall install a card access system into the stairwells from
each such floor if the Tenant utilizes such access.
Section 5.02 — Access Cards and Codes.
The Tenant will be provided with access cards for the Building and elevator through the
Landlord. The expense of such cards will be the sole responsibility of the Tenant [not to exceed
Ten and No/100 Dollars ($10.00) per access card]. The Tenant will receive a reimbursement of Five
and No/100 Dollars ($5.00) per access card returned from time to time. Upon termination of the
Lease, the Tenant shall surrender to the Landlord all access codes and keys, if any, to any portion
of the Development excluding the Tenant’s access cards to the Premises. The Tenant at its sole
costs and expense shall have the sole and exclusive right to install, maintain and provide a
security access system to and within the Premises and the Landlord shall have no responsibility
with respect to the provision, installation and maintenance of the Tenant’s security system;
provided however that the Tenant shall provide the Landlord on a continuous basis with access to
all of the Premises to exercise its rights and perform its obligations under this Lease and the
Tenant shall place no additional locks or security devices on any portion of its Premises unless
the Landlord shall be provided with similar access. The Tenant and the Landlord agree to work
together in good faith to maintain the integrity of each party’s security to the Building and the
Premises.
Section 5.03 — Window Coverings
The Landlord agrees to provide, at no additional cost to the Tenant, Building Standard window
coverings (blinds) in the Premises. The Tenant agrees to use the Building Standard window
coverings on the windows on the exterior of the Development. Any and all window coverings in
addition thereto are subject to the Landlord’s prior written approval.
Section 5.04 — Graphics
The Landlord agrees to provide initially and install, at the Landlord’s expense, the Tenant’s
name and suite numerals on or near the main entrance door to the Premises. All such letters and
numerals shall be in the Building Standard graphics (size and materials). All other graphics of
the Tenant visible in or from public corridors shall be subject to the Landlord’s written approval,
which approval shall not be unreasonably conditioned, withheld or delayed.
Section 5.05 — Services to Common Areas
The Landlord shall operate, maintain, clean, light, heat, ventilate and air-condition the
Common Areas in accordance with standards customarily followed in first-class office and commercial
developments in the Jacksonville area that are similar to the Building, which shall
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include, the Landlord’s obligation, as set forth herein, to properly maintain in good order and repair,
consistent with the aforesaid standards, the elevator cabs serving the Building in the first and
second floor lobby of the Building. The expense of providing the services described in this
section to the Common Areas (as well as any such services provided to the Service Areas) shall
be included in the Operating Expense.
Section 5.06 — Concierge Parking Service
No later than the date of Substantial Completion of any full floor of the Initial Premises,
the Landlord shall provide as a service to the Tenant, a Concierge Parking Service which service
shall interface with the employees of the Tenant (and other tenants of the Building as determined
by the Landlord in its discretion), (i) to be the Tenant’s single point of contact with the
Landlord regarding parking needs of the Tenant’s employees and the Tenant’s visitor parking needs
from time to time and (ii) to assist such employees who wish to relocate their parking privileges
within the Building Parking Facilities, subject to the terms of this Lease and (iii) to assist the
Tenant and the Tenant’s employees who are registered in car pool programs or take public
transportation with the administration of taxi voucher programs not to exceed four (4) times per
calendar year, prorated for partial years. The cost and expense for all such services described in
subparagraphs (i) and (ii) shall be provided without charge to the Tenant by the Landlord. The
Landlord shall notify the Tenant of the location, hours, contact information and telephone number
of such Concierge Parking Service and the Tenant shall be responsible to notify its employees from
time to time of the availability of such Concierge Parking Service. Except as set forth
hereinabove, the cost of such Concierge Parking Service shall be included within the operational
cost of the Development and included within the definition of Operating Expense.
Section 5.07 — Additional Services
The Tenant shall pay as Rent the cost of all additional services provided by the Landlord at
the Tenant’s request, which are not provided as a regular service hereunder. Such additional
services may include steam cleaning of carpets, approving, supervising or making repairs to the
Tenant’s Alterations and HVAC services after Business Hours at the Landlord’s actual cost which is
presently Thirty-Five and No/100 Dollars ($35.00) per hour per floor. Such after Business Hours
HVAC rate may increase each year after the Base Calendar Year by an amount not to exceed four and
one-half percent (41/2%) annually non-compounded, not to exceed the Landlord’s actual cost. The
amount charged to the Tenant for additional services, except for after Business Hours HVAC, shall
include all direct costs of labor, parts and materials incurred by the Landlord in rendering the
additional services plus ten percent (10%) of such costs to cover the Landlord’s administrative
costs, and the Tenant shall pay the same upon receipt of the Landlord’s invoice therefore, plus all
applicable sales tax.
Section 5.08 — Supplemental HVAC
Notwithstanding anything to the contrary in this Lease to the contrary, the Tenant shall have
the right to have supplemental air conditioning at all times provided to the Tenant’s computer
server/telephone rooms at no additional cost to the Tenant, by way of Tenant installed
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supplemental HVAC units.
Section 5.09 — Failure to Provide Services
Notwithstanding anything contained in this Lease to the contrary, failure by the Landlord
to any extent to furnish water, electric, life safety (including adequate elevator service),
telecommunications or HVAC to the Premises (or Common Areas, as applicable) for the benefit of the
Tenant, where such failure continues for more than twenty-four (24) consecutive hours after actual
notice to the Landlord, shall entitle the Tenant to an abatement in Rent in an equitable and just
proportion relative to such interruption. Should any of the equipment or machinery utilized in
supplying the services listed as set forth herein break down, or for any cause cease to function
properly, the Landlord shall, however, use reasonable diligence to repair same promptly.
ARTICLE VI
CONDITION, USE AND OCCUPANCY OF PREMISES
CONDITION, USE AND OCCUPANCY OF PREMISES
Section 6.01 — Use of Premises
The Premises are to be used and occupied by the Tenant (and its respective employees,
affiliates, vendors, contractors, regulators, Office Sharing occupants and other designees, and
their respective employees) solely for the Tenant’s Permitted Use.
Section 6.02 — Negative Covenants
The Tenant agrees that neither the Tenant nor any other persons using the Premises with its
consent, authority or agreement shall permit any part of the Premises to be used or occupied by any
person other than the Tenant, unless otherwise permitted by other provisions of this Lease or any
other persons expressly permitted by the Landlord, and their respective employees, nor permit any
persons to be upon the Premises other than the Tenant and such other permitted persons, their
respective employees, customers or others having lawful business with them.
Section 6.03 — Nuisance, Waste, Defacing
The Tenant shall not (i) suffer or cause any waste, damage, or injury to any part of the
Development or (ii) carry on any business or do or suffer any act or thing which constitutes a
nuisance or which shall be unreasonably offensive or unreasonably annoying to the Landlord or any
other tenant occupying the Building or (iii) or in any way deface any part of the Premises or the
Development.
Section 6.04 — Compliance with Insurance Requirements
The Tenant will not conduct or permit any activity, nor bring or keep anything upon the
Premises, which will in any material way increase the premium rate for, decrease the coverage of,
or conflict with any provision of any insurance policy covering the Development, any part
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thereof or any property kept therein, or which will violate any of the rules or regulations of any
applicable insurance underwriter or any other body having similar functions affecting the
insurability of the Premises. The Landlord to the best of its knowledge represents and warrants to
the Tenant that the Tenant’s use of the Premises in accordance with their Permitted Use shall not
in any way increase the premium rate for, decrease the coverage of, or conflict with any provision
of any insurance policy covering the Development, any part thereof or any property
kept therein, or violate any of the rules or regulations of any applicable insurance underwriter or
any other body having similar functions affecting the insurability of the Premises. The Tenant
shall pay as Additional Rent, the amount of any increase in insurance premiums caused by the
Tenant’s breach of this covenant.
Section 6.05 — Improvements, Alterations, Fixtures
(a) The term “Alterations” shall mean all changes, modifications, additions, or improvements
to the Premises made by or at the direction of the Tenant following the Term Commencement Date.
All improvements, replacements, additions, Alterations, or repairs, now or hereafter erected upon
or attached to the Premises, including but not limited to refrigeration systems, air conditioning
and heating systems, and duct work attached to the Premises, with the sole exception of the
Tenant’s Property, and including but not limited to the Building Improvements and the Tenant
Improvements, shall, at no cost to the Landlord, become the property and possession of the
Landlord, with no reimbursement or payment to the Tenant upon the expiration or sooner termination
of this Lease or as provided in Section 6.05(d) below.
(b) Except as permitted by this Lease, the Tenant shall not, without the prior written consent
of the Landlord, make, erect, install, remove or replace any Alterations in or about the Premises.
Any application by the Tenant for the Landlord’s consent to any of the foregoing shall be
accompanied by the complete plans and specifications therefore. As a condition to the Landlord’s
consent to such work, the Landlord shall have the right (i) to examine and approve the plans and
specifications and all changes thereto, (ii) to require security reasonably acceptable under the
circumstances to the Landlord from the Tenant to assure the lien-free completion of the work, (iii)
to inspect and supervise the work, and (iv) to approve the Tenant’s contractors and subcontractors,
who shall be properly licensed and insured. Within thirty (30) days after receiving the Landlord’s
invoice, the Tenant shall pay the Landlord’s reasonable third party costs (including fees of the
Landlord’s Architect) for examining and approving the Tenant’s plans and specifications for the
Alterations, or inspecting the work, plus reasonable charges for exterior Building hoisting and for
moving and disposing of construction waste materials to and from the Premises. The Tenant
covenants that any work it undertakes (x) shall be performed and completed expeditiously and in a
good and workmanlike manner by competent workers in accordance with the plans and specifications
for such Alterations approved by the Landlord and the requirements of all regulatory authorities
and (y) shall be free from all liens. Within thirty (30) days after the completion of any
Alterations, to the extent applicable (i.e., the erection or demolition of walls), the Tenant shall
furnish the Landlord with detailed as-built drawings showing the Alterations and the exact location
thereof.
(c) The Tenant covenants and agrees that it shall make no structural Alterations to the
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Premises without the Landlord’s prior written consent, such consent not to be unreasonably
withheld, conditioned or delayed; provided, however, notwithstanding anything contained in this
Lease to the contrary, including, without limitation, the terms and conditions of Sections 6.05(a)
and 6.05(b) hereinabove, (i) the Tenant may re-paint any existing painted areas, replace any
existing wall coverings and/or re-carpet any existing carpeted areas (including tile and VCT) with
colors and materials comparable to the initial Tenant Improvements, without the Landlord’s prior
written consent, (ii) make non-structural Alterations to the Premises at the Tenant’s sole
cost and expense provided that such Alterations (a) are in compliance with all Applicable Laws
and (b) such Alterations do not affect any Building HVAC, life and safety systems or do not include
the erection of any walls, (iii) the Tenant may utilize any contractor (and subcontractors) that
the Tenant deems appropriate to perform Alterations to the Premises, provided that such contractor
is licensed and insured in the State of Florida and provided further the Landlord has approved such
contractor which approval shall not be unreasonably withheld, denied or delayed, (iv) upon the
expiration or earlier termination of this Lease, the Tenant shall not be required to remove any
non-structural Alterations to the Premises, (v) if the Tenant requests, and the Landlord approves
of any structural Alterations to the Premises, the Tenant shall not be required to remove such
structural Alterations to the Premises unless, at the time the Landlord consented to such
structural Alterations, Landlord conditioned such consent upon the Tenant’s removal of such
Alterations. If the Tenant removes any Alterations, the Tenant shall repair any damage occasioned
by such removal at the Tenant’s sole cost and expense. If, as a result of such Alternations, any
improvements, modifications or repairs to the Premises are required by governmental authority under
any applicable laws, including, but not limited to the Americans with Disabilities Act or its
implementing regulations or guidelines (the “ADA”), the Tenant shall be solely responsible for all
non-structural items and any structural items. Tenant covenants and agrees to pay all costs and
expenses in connection with the performance of its obligations under this Section 6.05. If any
improvements, modifications or repairs to the Building, except for the Premises, are required by
governmental authority under any applicable laws, including, but not limited to the ADA or its
implementing regulations or guidelines as a result of such Alterations, the Landlord shall be
solely responsible for all non-structural items and any structural items, in either event, to the
extent not due to the Tenant’s specific use of the Premises.
(d) All Building Improvements and the Tenant Improvements described in the Work Letter (to the
extent located in the Premises) and other Alterations, on the earlier of when located at the
Building or incorporated in the Premises, shall become the property of the Landlord.
Section 6.06 — Building Rules
The Tenant and any person in the Development on account of the Tenant will comply with the
reasonable rules of the Development adopted by the Landlord for the safety, care and cleanliness of
the Premises and the Development and for preservation of good order therein, all of which will be
sent by the Landlord to the Tenant in writing and shall be thereafter carried out and observed by
the Tenant. The Building Rules as set forth in Exhibit “D” are the current rules and regulations
and the Landlord shall use good faith efforts to reasonably apply and enforce the Building Rules to
all tenants consistently and uniformly throughout the Development at all times. The Landlord has
the right to make any reasonable changes to the Building Rules from
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time to time, so long as such changes are uniformly applied and enforced against all tenants and occupants in the Development,
and any persons in the Development on account of such tenants and/or occupants, and such changes do
not require the Tenant to incur any material additional cost or expense, and do not diminish any
right of the Tenant or service to be provided to the Tenant by the Landlord hereunder. In the
event of any conflict between the Building Rules and the terms and conditions elsewhere in this
Lease, the terms and conditions elsewhere in this Lease shall control.
Section 6.07 — Laws and Regulations
To the best of its knowledge and belief, the Landlord represents and warrants to the Tenant
that as of the Term Commencement Date, the Premises, Building, and Development comply with all
Applicable Laws including, without limitation, all Environmental Laws and the ADA. After the Term
Commencement Date, each of the Tenant and the Landlord agree, subject to the terms of this Lease,
to comply with all Applicable Laws including, without limitation, all Environmental Laws. The
Tenant shall be solely responsible for all matters pertaining to the application of the ADA, as
same may be amended or modified from time to time, with respect to the Premises and to the Tenant’s
leasehold and activities under this Lease, except that the Landlord shall be solely responsible for
the compliance of the Common Areas with the ADA.
Section 6.08 — Heavy Objects
The Tenant shall not bring upon or permit or cause to be brought upon the Development anything
that might load any floor beyond its reasonable weight-carrying capacity. No safe or other heavy
article that might damage any part of the Development shall be taken into or out of the Development
without the Landlord’s prior written consent (which consent shall not be unreasonably withheld,
conditioned or delayed), and the Landlord retains the right to reasonably prescribe the maximum
permitted weight and the placement of same subject to the weight-carrying capacity of the
applicable floor where such article will be placed and the Tenant’s intended use of such article.
For the avoidance of doubt the Landlord’s consent was provided for any object, safe, or heavy
article expressly set forth in the Tenant’s Plans and Specifications.
Section 6.09 — Hazardous Substances
(a) The provisions set forth in this Section 6.09 are additional to and not in derogation or
limitation or restriction in any manner of other provisions of this Lease that may have application
with respect to Hazardous Substances or facts or matters concerning Hazardous Substances, except
that in the event of a conflict between a provision of this Section 6.09 and another provision
elsewhere in this Lease, the provision of this Section 6.09 shall govern.
(b) The Tenant shall, at the Tenant’s sole cost and expense:
(i) assure that there exists no act or omission by the Tenant or employee, guest, invitee or
agent of the Tenant that (1) results in or contributes to any material violation of any
Environmental Laws with respect to the Premises or (2) causes or permits any Hazardous
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Substances whatsoever be brought upon or kept or used or stored or treated under, in, on or about the Premises
in violation of Applicable Laws except the Hazardous Substances of such types and quantities as are
reasonably and customarily used in the Tenant’s business in accordance with Applicable Laws shall
be permitted. Notwithstanding the foregoing, the Tenant shall not install or utilize underground
storage tanks under any circumstances unless the Tenant first obtains the written consent of the
Landlord in the Landlord’s discretion;
(ii) promptly notify the Landlord if the Tenant learns of or receives any notice that
Hazardous Substances have been disposed of or released under, in, on or about the Premises,
or if the Tenant receives any claim, complaint, order, citation or notice by any governmental
authority or third party with respect to any matter relating in any respect to Hazardous Substances
(the Landlord agreeing, at the Landlord’s sole cost and expense, to likewise promptly notify the
Tenant upon the Landlord’s knowledge of the same); and
(iii) promptly notify the Landlord as to any liens threatened or attached against the Premises
or against the Tenant’s leasehold interest under this Lease, which liens arise out of or relate in
any manner to Hazardous Substances (the “Environmental Liens”). In the event that as a result of
the Tenant’s failure to comply with Section 6.09(b)(i) any Environmental Lien is filed against the
Premises or against the Tenant’s leasehold interest under this Lease, then the Tenant shall, within
thirty (30) days from the date that the Environmental Lien is filed, and in any event prior to the
date any governmental agency or other party commences proceedings to foreclose on such lien, either
(1) pay the claim and remove the lien from the Premises and/or the leasehold interest of the Tenant
under this Lease or (2) furnish security reasonably satisfactory to the Landlord in an amount
sufficient to discharge the claim out of which the lien arises.
(c) As of the Effective Date, the Landlord represents and warrants to its knowledge that,
except as set forth in Section 14.15 herein, the Development does not contain friable asbestos or
other Hazardous Substances of any kind (including, but not limited to transformers containing
PCBs), except, in the case of Hazardous Substances only and not asbestos, in commercially
reasonable quantities for construction purposes and cleaning agents and other substances normally
used in the construction, operation and maintenance of office buildings and not prohibited by
Applicable Laws, all of which shall be stored, used and disposed of at the Landlord’s cost and
without reimbursement from the Tenant in accordance with all Applicable Laws. During the Term of
this Lease, the Landlord or employee, guest, invitee or agent of the Landlord shall not, within the
Building or Building Land, store, use, or directly cause or permit the escape, disposal or release
of any Hazardous Substances, in violation of Applicable Laws and in the event such Applicable Laws
require the Landlord to remove or otherwise remedy the existence of any friable asbestos or
Hazardous Substances discovered in, on or under the Building or Building Land, the Landlord agrees
to remove or remedy the same, and the cost shall not be included as an Operating Expense. The
Landlord shall indemnify and hold the Tenant harmless against any losses, damages, costs,
liabilities and claims suffered by the Tenant in connection with a breach by the Landlord of its
obligations set forth in the immediately prior sentence.
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Section 6.10 — Refuse and Cleanliness
The Tenant shall keep the Premises in a clean and sanitary condition at all times. At no time
shall the Tenant place any items or refuse in the public hallways or other areas of the Building or
the Parking Facilities, except the Tenant’s own Premises.
Section 6.11 — Condition of Premises
The Landlord shall deliver the Premises to the Tenant and the Tenant agrees to accept the
Premises from the Landlord in its existing “as-is, where-is” condition, except for the Landlord’s
obligations as more particularly set forth in the Work Letter as set forth in Exhibit “C” and
except as otherwise may be set forth in this Lease.
Section 6.12 — Access
The Landlord, its authorized agents, employees, and contractors shall, with at least
twenty-four (24) hours advance written notice and a representative of the Tenant as an escort, be
permitted, at any reasonable time during Business Hours, to enter the Premises (i) for the purpose
of inspection, maintenance, or making repairs, to the Premises or the Development or accessing
utilities and providing services, (ii) to exhibit the Premises to prospective purchasers of the
Development and mortgagees and (iii) during the last six (6) months of the Term, to exhibit the
Premises to prospective tenants, provided, however, that Tenant, at the Tenant’s reasonable
discretion, may restrict access to certain limited areas of the Premises for any visit pursuant to
(ii) or (iii) hereinabove, provided further that to the extent such access has been limited and
Landlord and its invitees continue to seek to have access to such areas, Landlord shall make a
further written request, and Tenant shall provide access to the restricted areas within seventy-two
(72) hours after receipt thereof. Furthermore, for any Landlord visit pursuant to (ii) or (iii)
hereinabove, Tenant shall have the right to provide an escort with Landlord on any such visit.
Notwithstanding anything hereinabove to the contrary, in the event of a threat, warning, or other
circumstance causing reasonable and immediate concern to the Landlord regarding smoke, fire, water
or sewer leaking or back-up, water intrusion, windstorm damage, flooding, sickness, death or any
other circumstance which the Landlord objectively believes is an emergency, or likely to become an
emergency, then in such event(s), the Landlord, security personnel, fireman, fire marshals,
emergency medical technicians and repairman or xxxxxxx (under the Landlords control and
supervision) shall have the right to access the Premises without any requirement for advance notice
to the Tenant or any requirement for an escort; limited, however, to such interval of time as is
reasonably necessary, under the circumstances, to remedy the emergency. The Landlord shall
exercise its access rights with a minimum of interference with the Tenant’s use and enjoyment of
the Premises and after availing itself of the emergency access rights as provided hereinabove, the
Landlord shall promptly inform Tenant, in writing of such access and any action taken by the
Landlord in connection with such access.
The Tenant acknowledges for itself and its authorized agents, employees and contractors that
the access to the Premises provided by this Section 6.12 (including during any period in which
Alterations or other modifications to the Premises are ongoing) and the exercise of such
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access rights is coincident with any construction activities, then the Tenant releases the Landlord and
its members, officers, directors, employees, agents and contractors, from any claim, liability,
loss or damage arising out of or related to such access to a site in which work is on-going and the
Tenant assumes all risk associated with such access, except for the gross negligence or willful
misconduct of the Landlord and its members, officers, directors, employees, agents or contractors.
In that regard, the Tenant agrees to indemnify, defend and hold harmless the Landlord and its
members, officers, directors, employees, agents and contractors in connection with any claim made
against the Landlord arising out of the Tenant’s access to the Premises during such construction
phase, except for the gross negligence or willful misconduct of the Landlord and its members,
officers, directors, employees, agents or contractors.
ARTICLE VII
TAXES
TAXES
Section 7.01 — Payment of the Tenant’s Taxes
The Tenant shall pay all the Tenant’s Taxes (including all Sales taxes), whether assessed to
the Landlord or the Tenant, as and when the same become due and payable. To the extent that any of
the Tenant’s Taxes are assessed to the Landlord by the relevant taxing authorities, the Tenant
covenants to pay the amount thereof to the Landlord, as the Additional Rent, within thirty (30)
days after receipt of the Landlord’s invoice. Whenever reasonably requested by the Landlord in
writing, to the extent then within the Tenant’s possession, the Tenant will deliver to the Landlord
copies of receipts for payment of any portion of the Tenant’s Taxes imposed upon the Landlord.
Section 7.02 — Payment of the Landlord’s Taxes
The Landlord covenants and agrees to timely pay all the Landlord’s Taxes on or before their
due date. In addition, the amount includable in the Operating Expense for such Landlord’s Taxes
shall be the amount with the maximum discount for early payment. The Landlord may appeal the
assessment or payment of any Taxes. In connection with any such appeal, the Landlord may defer
payment of any Taxes to the extent permitted by Law. Such deferral shall not relieve the Tenant of
its obligation to pay the Tenant’s Share of the Landlord’s Taxes monthly as provided in Section
4.02. The Tenant shall cooperate with the Landlord and provide all relevant information reasonably
required by the Landlord in connection with any such appeal. Should the Landlord elect not to
contest any Taxes and the Tenant wishes to pursue such contest, then the Landlord shall contest any
such Taxes upon receipt of a written request to do so provided that the cost and expense of such
contest (including, without limitation, all costs of appraisals, consultants, and attorneys at
trial and any appeal) shall be borne by the Tenant as they occur (the “Contest Expense”). Should
the Landlord prevail in such contest of Taxes, then any reduction in Taxes in the challenged
Calendar Year shall be reimbursed by the Landlord to the Tenant no later than thirty (30) days
after such reduction is final up to the sum of the Contest Expense. In the event that the Contest
Expense exceeds the reduction related to such challenged Year the Tenant shall receive no further
reimbursement related to the Contest Expense. The Landlord and the Tenant mutually agree to
cooperate with each other with respect to any such
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contest. The Landlord shall pay to or credit the Tenant with the Tenant’s Share of any abatement, reduction or recovery of any Landlord’s Taxes
attributable to the Term. In the event any Landlord’s Taxes are payable in installments over a
period of years, the Tenant shall be responsible only for installments billed during and
attributable to the Calendar Years within the Term, with proration, of any installment payable
prior to or after expiration of the Term.
Section 7.03 — Determination of Taxes
If the Landlord cannot obtain from the taxing authorities any separate assessment of the
Landlord’s Taxes and the Tenant’s Taxes, then such Taxes shall be reasonably allocated by the
Landlord in accordance with generally accepted accounting principles consistently applied after
reviewing Tenant’s Property located at the Premises.
ARTICLE VIII
SUBLEASE AND ASSIGNMENT
SUBLEASE AND ASSIGNMENT
Section 8.01 — Sublease and Assignment
For purposes of this section, a “Transfer” shall mean any of the following (i) an assignment
of this Lease, (ii) a collateral assignment, mortgage, or other encumbrance involving this Lease or
the Tenant’s leasehold estate established hereby or (iii) a sublease, license agreement or other
agreement permitting all or any portion of the Premises to be used by others. Notwithstanding
anything contained in this Lease to the contrary, a Transfer by the Tenant of its interests as the
Tenant hereunder or in the Premises or any part thereof to: (i) any corporation, limited liability
company, or partnership that is an affiliate of the Tenant; or (ii) any entity resulting from the
merger or consolidation with the Tenant or to any entity that acquires all or substantially all of
the Tenant’s assets as a going concern of the business that is being conducted on the Premises
shall not trigger the Landlord’s right to terminate this Lease as set forth below in this Section
8.01 as to the portion of the Premises subject to the Transfer. For the purposes of this section,
an “affiliate” shall have the meaning set forth in Rule 12-02 of the Securities Exchange Act of
1934, as amended.
Notwithstanding anything contained in this Lease to the contrary, a Transfer by the Tenant of
its interests as the Tenant hereunder pursuant to a plan of financing where the Transfer would be
considered a collateral assignment, mortgage, or other encumbrance involving this Lease or the
Tenant’s leasehold estate established by the Lease, shall not trigger the Landlord’s right to
terminate this Lease as set forth below in this Section 8.01 as to the portion of the Premises
subject to the Transfer.
For the avoidance of doubt, under no circumstances shall the Tenant assign this Lease or
sublet the Premises to any then current occupant of the Development, without the express written
consent of the Landlord; provided however that any requested consent to a collateral assignment,
mortgage, or other encumbrance involving this Lease or the Tenant’s leasehold estate established by
the Lease pursuant to a plan of financing shall not be unreasonably withheld. In the event the
Tenant should desire to Transfer its interests as the Tenant hereunder or in the Premises or any
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part thereof, the Tenant shall give the Landlord written notice of such desire at least thirty (30)
days in advance of the date on which Tenant desires to make such Transfer. The Landlord shall then
have a period of fifteen (15) days following receipt of such notice within which to notify the
Tenant in writing that the Landlord elects to terminate this Lease as to the space so affected as
of the date so specified by the Tenant in which event the Tenant will be relieved of all further
obligation hereunder as to such space. In the event that the Landlord elects not to terminate this
Lease as to the space so affected, the Tenant agrees that fifty percent (50%) of any profit
realized by the Tenant as a result of such Transfer (meaning the consideration agreed upon between
the Tenant and Transferee including the difference between the rental rate agreed upon between the
Tenant and Transferee and the Rent then required to be paid under this Lease paid over the term of
the sublease, after deducting all of the Tenant’s reasonable costs associated with such Transfer,
including, but not limited to in repairing, restoring, altering or otherwise preparing the Premises
for the Transfer, together with leasing fees and all other expenses) shall be paid over to the
Landlord by the Tenant as and when received. If the Landlord should fail within the fifteen
(15) day period, to notify the Tenant in writing of the Landlord’s election to terminate this Lease
as to the portion of the Premises subject to the Transfer, the Landlord shall be deemed to have
elected to accept the Transfer and the Landlord shall have been deemed not to have exercised its
termination and recapture right, and the Tenant shall have the right to complete the aforementioned
Transfer. No consent by the Landlord to any Transfer shall be deemed to be consent to a use not
permitted under this Lease, to any act in violation of this Lease, or to any other or subsequent
Transfer. Notwithstanding anything contained in this Lease to the contrary, in the event that the
Landlord elects to exercise its termination and recapture rights pursuant to this Section 8.01, the
Tenant, upon written notice to the Landlord within ten (10) days after the Landlord exercised such
termination and recapture right, may rescind its request for Transfer, in which event, this Lease
shall continue as if no Transfer request had been made. No Transfer by the Tenant shall relieve
the Tenant of any obligation under this Lease and all Rents shall continue to be due. Any Transfer
shall be subject to all the terms and conditions of this Lease. Any attempted Transfer by the
Tenant in violation of the terms and covenants of this Section 8.01 shall be void. As used in this
section, the term “Transferee” shall include any assignee or subtenant of the Tenant or any other
party involved in any of the other transactions or events constituting a Transfer.
Section 8.02 — Condition of any Permitted Sublease
Should any sublease be permitted as a Transfer, such sublease shall provide that (i) the
subtenant shall not violate any of the terms and conditions of this Lease, (ii) the sublease is
expressly subject to all of the applicable terms and provisions of this Lease, (iii) unless the
Landlord elects otherwise, the sublease will not survive a termination of this Lease (whether
voluntary or involuntary) or resumption of possession of the Premises by the Landlord following a
default by the Tenant; and (iv) subtenant shall not be vested with any legal or equitable rights to
exercise any options (i.e., renewals, expansions) granted to the Tenant. The sublease shall
further provide that if the Landlord elects, in writing, that the sublease shall survive a
termination of this Lease or resumption of possession of the Premises by the Landlord following a
default by the Tenant, the subtenant will, at the election of the Landlord, attorn to the Landlord
and continue to perform its obligations under its sublease as if this Lease had not been
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terminated and the sublease were a direct lease between the Landlord and the subtenant and said subtenant
shall attorn to the Landlord. Any assignment of this Lease shall contain an assumption by the
assignee of all of the terms, covenants, and conditions of this Lease to be performed by the Tenant
from and after the date of such assignment.
Section 8.03 — Office Sharing
Notwithstanding anything to the contrary contained in this Lease, the Tenant may share part of
the Premises (the “Office Sharing”) with regulators, consultants, contractors or vendors of the
Tenant, provided (i) the Tenant does not charge such parties as a function of the Office Sharing
and (ii) the Tenant does not physically subdivide the space so shared to provide separate access
for such space to the elevator lobby. In addition the Landlord may upon written notice no more
frequently than once every two (2) months, request that the Tenant deliver a list of any such
Office Sharing, identifying in such notice the persons or party participating in such Office
Sharing and the period of time such Office Sharing is to be in effect. The foregoing Office
Sharing arrangement shall not be considered a Transfer for the purposes of this Section.
ARTICLE IX
TITLE
TITLE
Section 9.01 — Transfer of the Landlord’s Interest
The Landlord shall have the right to transfer and assign, in whole or in part, all its rights
and obligations hereunder and in the Development as set forth herein, and, subject to the terms of
the SNDA (which shall govern notwithstanding anything contained herein as to Mortgagee or any
“Successor Landlord” as defined in the SNDA) in such event and upon its transferee’s written
assumption of the Landlord’s obligations and covenants hereunder (any such transferee to have the
benefit of, and be subject to, the provisions of Section 12.05 below), no further liability or
obligation shall thereafter accrue against the transferor hereunder.
Any notice of violation or non-performance sent to the Landlord under this Lease shall also be
sent by the Tenant to each assignee and Mortgagee of which the Tenant has written notice. No
notice of default shall be effective until delivered to each such assignee and Mortgagee. Any such
assignee or Mortgagee shall have the right (but not the obligation) to cure any such default on
behalf of the Landlord in the same time period and manner as the Landlord is permitted under this
Lease, except as superseded by the terms of the SNDA, described below.
Section 9.02 — Subordination
Subject to any Mortgagee providing the Tenant with the SNDA, this Lease and all rights of the
Tenant hereunder (including but not limited to the rights and interest arising under Sections 2.05,
2.06, 3.02, 3.03, 3.04, 3.05 8.01 and 8.02) are unconditionally subject and subordinate to any
mortgage, and any amendments thereto (including any related financing instruments) now or hereafter
encumbering the Premises. Subject to any Mortgagee providing the Tenant with the SNDA, the
provisions of this Section 9.02 shall be self-operative and no
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further instrument of subordination shall be required. To confirm such subordination, the Tenant shall promptly furnish, at its
expense, a subordination in the form of the SNDA. The “SNDA” shall mean with regard to the current
Mortgagee as of the Effective Date of this Lease, the form of Subordination, Non-Disturbance and
Attornment Agreement as set forth in Exhibit “E” (which Tenant agrees is an SNDA satisfactory to
the Tenant), and with regard to any subsequent Mortgagee, a subordination, non-disturbance and
attornment agreement in a form reasonably approved by the Tenant, which approval shall not be
unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, any holder of a
mortgage affecting the Premises may elect from time to time (whether or not in connection with any
foreclosure of such mortgage) that this Lease shall have priority over such mortgage, and effective
immediately upon notification to the Tenant of such election, this Lease shall be deemed to have
priority over said mortgage and shall survive any foreclosure thereof.
The Landlord and the Tenant agree on or before the Effective Date, and as a condition
precedent to the effectiveness of this Lease, the SNDA must be executed by the Landlord and Tenant,
and delivered to the Mortgagee. In the event that either (i) the Landlord has not
deposited with the Escrow Agent or the Mortgagee, all funds or letters of credit required by the
terms of this Lease to be funded or deposited on or prior to the Effective Date, or (ii) the
Mortgagee has not timely delivered the executed SNDA to the Tenant on or prior to the Effective
Date, then the Tenant shall have the right to unilaterally terminate this Lease by delivering
written notice at any time after the Effective Date (regardless of whether such notice is delivered
on a Business Day, Saturday, Sunday or Holiday) to the Landlord and the Mortgagee and such
termination shall be effective immediately upon delivery by the Tenant of such notice; provided,
however, if the Tenant is provided written notice that the conditions in (i) and (ii) in the
preceding sentence are satisfied prior to the Tenant’s delivery of a termination notice, the
Tenant’s right to terminate this Lease shall automatically expire and be of no further force and
effect.
Section 9.03 — Attornment
If any Mortgagee of the Premises or any other person acquires the Landlord’s interest
hereunder pursuant to the enforcement of any security interest, or otherwise succeeds to the
Landlord’s rights hereunder, upon request of such successor and in accordance with Section 9.02
hereinabove, the Tenant shall attorn to and recognize any such successor as its landlord under this
Lease upon this Lease’s then existing terms. For purposes hereof, the Tenant agrees that the form
of SNDA is satisfactory to the Tenant. The foregoing attornment provisions shall inure to the
benefit of any such successor and in accordance with Section 9.02 hereinabove and shall be
self-operative upon notice to the Tenant of any request therefore, and no further instrument of
attornment shall be required. Upon demand of any such successor, the Tenant agrees to furnish
instruments satisfactory to such successor to evidence and confirm the attornment. Nothing
contained in this Section shall be construed to impair any right otherwise exercisable by the
Landlord or any successor.
Section 9.04 — Estoppel Statements
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Upon twenty (20) days’ written notice from (i) the Landlord or any Mortgagee of the Premises
to the Tenant or (ii) the Tenant or any Tenant lender to the Landlord, the party on which such
request is made shall furnish, at its expense, a statement in form reasonably satisfactory to the
party on which such request is made and addressed to the Landlord, the Landlord’s Mortgagee, the
Tenant, and/or the Tenant’s lender, as applicable, confirming any factual matter relating to this
Lease requested by the requesting party that is true and is within the actual knowledge of the
party on which such request is made regarding this Lease, and the Premises, including but not
limited to: (i) whether this Lease in unmodified and in full force and effect (or if modified,
stating the modifications and that this Lease is in full force and effect as so modified), (ii)
whether the Term Commencement Date has occurred and, if so, the Term Commencement Date, (iii)
whether the Base Rent and the Additional Rent have become payable hereunder and, if so, stating the
amount thereof and the Rent Commencement Date and the dates to which the same have been paid, (iv)
whether or not, the Landlord or the Tenant is in default in the performance of any of the
Landlord’s or the Tenant’s obligations, (v) whether the Tenant has accepted possession of the
Premises, (vi) whether the Tenant has any uncollected claim against the Landlord under this Lease
and, if so, stating the nature and amount thereof, (vii) whether there exist any offsets or
defenses against the enforcement of the terms of this Lease against the
Landlord or the Tenant and, if so, specifying the same and (viii) such further information with
respect to this Lease or the Premises that the requesting party may reasonably request. The
failure of a party on which such request is made to furnish the other party an estoppel statement
within said twenty (20) day period shall, at the election of the requesting party in addition to
any other available rights or remedies, constitute an acknowledgement by the party on which such
request was made, which may be relied upon by any of the aforesaid persons, that any such estoppel
statement prepared and submitted by the requesting party is true and correct.
Section 9.05 — Approval by Mortgagee
The Landlord represents and warrants to the Tenant that the Landlord has obtained the prior
approval of any existing Mortgagee of the Premises or the Development or any part thereof or the
issuer of an existing commitment to provide financing to the Landlord, and that the Landlord does
in fact have the full and complete authority from its Mortgagee to execute this Lease.
Section 9.06 — Condemnation
(a) If a Material Taking (as defined hereinbelow) of the Development occurs, then the Tenant
shall have the right to terminate this Lease as of the date possession is taken by the condemnor,
and Rent shall be adjusted between the Landlord and the Tenant as of such date. If only a portion
of the Development is taken and this Lease is not terminated, and the Tenant can, in its reasonable
judgment, continue use of the Premises or remainder thereof, for its intended purpose then: (i)
this Lease will not terminate, but Rent shall xxxxx in a just and proportionate amount to the loss
of use occasioned by the taking, and (ii) the Landlord shall, at its expense, promptly repair and
restore the Development to the condition that closely resembles the conditions that existed
immediately before the taking, except for the part taken. For the purposes hereof, “Material
Taking” shall mean that (i) practical access to the Building is permanently
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diminished sufficient to cause the Building to no longer be considered as a Class A building, (ii) the Building is
condemned, (iii) parking resources provided by the Building Garage, are diminished and not replaced
by the Landlord through comparable lease arrangements or new facilities at the time such
condemnation becomes effective or (iv) a circumstance is created wherein the Premises cannot be
utilized as contemplated because of a material obstruction or diminishment, any one of which arise
by reason of condemnation or the exercise of power of governmental authorities.
(b) If the whole or any part of the Premises is condemned for public use, or conveyed or
transferred to a condemning authority in lieu of such condemnation, the Landlord shall be entitled
to the whole of any compensation made therefore and the Tenant shall not be entitled to any part of
such compensation, whether for the value of the unexpired Term of this Lease or for the Tenant
Improvements or otherwise; provided, however, the Tenant shall be entitled to the value of its
contribution to the cost of the Tenant Improvements (or any other tenant improvements with respect
to the Premises other than the Initial Premises), amortized on a straight line basis over the
Initial Term. In addition, the Tenant may, to the extent allowed by law, claim an award for
business damages, moving expenses and for the taking of any of the Tenant’s Property which does
not, under the terms of this Lease, become the property of the Landlord at the termination hereof, as long as such claim is separate and distinct from any
claim of the Landlord.
Section 9.07 — Liens
(a) General. The interest of the Landlord in the Development or any component thereof shall
not be subject in any way to any liens, including construction liens, for improvements to or other
work performed in the Premises by or on behalf of the Tenant. The Tenant shall have no power or
authority to create any lien or permit any lien to attach to the present estate, reversion, or
other estate of the Landlord (or the interest of any ground lessor) in the Premises or in the
Building and all mechanics, materialmen, contractors, artisans, and other parties contracting with
the Tenant or its representatives or privies as to the Premises or any part of the Premises are
charged with notice that they must look to the Tenant to secure payment of any xxxx for work done
or material furnished or for any other purpose during the Term. These provisions are made with
express reference to Section 713.10, Florida Statutes. Notwithstanding these provisions, the
Tenant, at its expense, shall cause any lien filed against the Premises or the Building for work or
materials claimed to have been furnished to the Tenant, by a party that the Tenant actually
contracted with or a party claiming under a party that actually contracted with the Tenant to be
discharged of record or properly transferred to a bond under Section 713.24, Florida Statutes,
within thirty (30) days after notice to the Tenant. The Landlord acknowledges and agrees that the
foregoing sentence shall have no application to any lien filed by any party claiming by, through,
or under the General Contractor (as defined in the Work Letter) with respect to the Total Work (as
defined in the Work Letter), or portion thereof. The Tenant shall notify every contractor in
direct contractual privity with the Tenant and making improvements to the Premises that the
interest of the Landlord in the Premises shall not be subject to liens for improvements to or other
work performed in the Premises by or on behalf of the Tenant. The Tenant shall execute,
acknowledge, and deliver without charge a short form of
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lease or notice in recordable form containing a confirmation that the interest of the Landlord in the Premises and the Building shall
not be subject to liens for improvements or other work performed in the Premises by or on behalf of
the Tenant. If a short form of lease or notice is executed, it shall expressly provide that it
shall be of no further force or effect after the last day of the Term or on the filing by the
Landlord of an affidavit that the Term has expired or this Lease has been terminated or that the
Tenant’s right to possession of the Premises has been terminated.
(b) Default. Notwithstanding the foregoing, other than in connection with the Total Work, if
any mechanic’s lien or other lien, attachment, judgment, execution, writ, charge or encumbrance is
filed against the Building or the Premises or this leasehold, or any Alterations, fixtures or
improvements therein or thereto, as a result of any work action or inaction done by or at the
direction of the Tenant or any of the Tenant’s agents, the Tenant will discharge same of record (by
statutory bond or otherwise) within thirty (30) days after the receipt of actual notice thereof.
In such event, without waiving any Tenant default, the Landlord, in addition to all other available
rights and remedies, without further notice, may discharge the same of record by payment, bonding
or otherwise, as the Landlord may elect, and upon request the Tenant will reimburse the Landlord
for all reasonable and documented costs and expenses so incurred by the Landlord plus interest
thereon at the Stipulated Rate of Interest.
ARTICLE X
REPAIRS AND DAMAGE
REPAIRS AND DAMAGE
Section 10.01 — Repairs to Premises by Tenant
Except as set forth in Section 10.03 below, the Tenant shall repair and maintain (or have the
Landlord repair, at the Tenant’s cost) the following improvements located within the Tenant’s
Premises: electrical light bulbs, lamps, tubes, starters and ballasts servicing the Premises,
telephone and telephone systems, carpet, tile and other floor coverings, wall coverings, doors,
door hardware, ceiling tiles, kitchen equipment, interior partitions, fixtures, raised flooring,
built-in cabinets, special millwork, reception areas, electrical outlets, special computer rooms,
special HVAC for computer rooms, the Tenant’s other special equipment and decorations, and the
Tenant’s cabling. Notwithstanding the foregoing, (i) the Landlord shall be responsible at its
cost and expense to change as needed all Building Standard electrical light bulbs, lamps, tubes,
starters, ballasts and ceiling tiles contained within the Premises and (ii) the Landlord shall have
no responsibility for any damage to any of the Building Standard fixtures and Building Standard
leasehold improvements or the Premises (including without limitation, partition walls and other
Tenant improvements) caused by the intentional acts, misuse or gross negligence of the Tenant or
the Tenant’s employees, guests, invitees and agents which shall be promptly repaired by the Tenant,
at its sole cost and expense, except to the extent that the repairs or replacements are covered by
the Landlord’s insurance. However, if any part of the Development (other than the Premises) is
damaged or destroyed through the negligence or misuse thereof by the Tenant or the Tenant’s
employees, guests, invitees and agents, the Tenant shall pay for all repairs, replacements or
alterations necessitated thereby, except to the extent that the repairs or replacements are covered
by the Landlord’s insurance. All repairs and
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replacements made by the Tenant shall be made in conformity with Section 6.05 and shall be at least equal in quality and class to the original work
or the then applicable standards for the Premises established by the Landlord. The Tenant shall be
solely responsible for damage to the Tenant’s Property, unless caused by the willful misconduct or
gross negligence of the Landlord or the Landlord’s employees, guests, invitees and agents.
Section 10.02 — Surrender Premises in Repair
On or before the ninetieth (90th) day preceding the last day of the Term or the
date of any termination arising under the Tenant’s Termination Right or Contraction Rights, the
Tenant shall notify the Landlord in writing of the projected date upon which the Tenant plans to
surrender the Premises or any portion thereof to the Landlord. On expiration of the Term or the
date of any termination arising under the Tenant’s Termination Right or Contraction Rights, the
Tenant shall quit and surrender the Premises, or applicable portion thereof to the Landlord, broom
clean, in good order, condition and repair, reasonable wear and tear, casualty and condemnation
excepted, with all of the Tenant’s Property removed therefrom (except for the Tenant’s conduit or
cabling described in Section 15.08 which is not removed, which shall become the property of
Landlord upon any expiration or termination). Unless the Tenant has obtained the Landlord’s
agreement in writing that it can remove an Alteration, all Alterations shall be surrendered with
the Premises in good order, condition and repair, reasonable wear and tear, casualty and
condemnation excepted. If the Tenant fails to remove any of the Tenant’s Property upon termination
of this Lease, the Landlord may have the same removed and any resulting damage repaired at the Tenant’s expense. In
such event, the Tenant’s Property will automatically become the property of the Landlord and the
Landlord may in its sole discretion store the Tenant’s Property in the Tenant’s name at the
Tenant’s expense and/or dispose of the same in any manner permitted by law without any right of
reimbursement therefore to the Tenant. Notwithstanding anything contained in this Lease to the
contrary, computer servers, desktop stations, laptops, files or other personal property which could
reasonably be expected to contain the Tenant’s confidential information or customer information
(collectively, the “Protected Items”), which may inadvertently be left at the Premises at the end
of the Term or upon the earlier termination thereof, shall not become the property of nor be
disposed of by the Landlord, but the Landlord may arrange for storage of same at the Tenant’s cost
for a period of not less than sixty (60) days, only after first providing an additional written
notice to the Tenant for the Tenant to retrieve said items, it being acknowledged by both the
Landlord and the Tenant that such items may contain sensitive, confidential and/or proprietary
information which is subject to federal regulations as to ownership, possession, storage, disposal,
removal or other handling. During the period that any Protected Items remain in storage, the Tenant
shall, in addition to ownership of such items, retain the right of possession and control of the
Protected Items.
Section 10.03 — Repairs by Landlord
The Landlord shall operate the Development as a first-class office and commercial complex and
shall perform all maintenance necessary to keep the Development, the Building, the Premises, and
the Common Areas in good repair, excluding repairs the Tenant is obligated to make. The Landlord’s
maintenance shall include the roof, foundation, exterior walls, interior
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structural walls, all structural components, Common Areas, and all Building systems, such as mechanical, electrical,
HVAC, plumbing, fire sprinkler and life safety systems. Repairs or replacements shall be made
within a reasonable time (depending on the nature of the repair or replacement needed) after
receiving notice from the Tenant or the Landlord having actual knowledge of the need for a repair
or replacement. All of the Landlord’s repair and maintenance shall be consistent with the custom
and practice employed in Class A office buildings in the downtown Xxxxx County, Florida area.
Section 10.04 — Notice of Damage or Defects
The Tenant from time to time shall give the Landlord, upon actual knowledge thereof, prompt
notice of any damage to or defect in the Premises or any part thereof, including without limitation
the plumbing, water pipes, heating, ventilating and/or air-conditioning apparatus, electrical
equipment, conduits or wires. Nothing set forth herein shall be construed, however, to require
repairs to be made by the Landlord except as expressly provided in this Lease.
Section 10.05 — Fire or Other Damage
(a) If the Development, the Building, or the Premises (including the Tenant Improvements,
Building Improvements contained in the Premises, and Alterations) are damaged by fire or other
casualty, then the Landlord shall promptly commence and thereafter diligently pursue the repair and
restoration of the Development, the Building, or the Premises to
substantially the same condition of the Development, Building, or Premises (including the
Tenant Improvements, Building Improvements contained in the Premises, and Alterations) immediately
prior to such fire or other casualty, except the Landlord shall have no obligation under this Lease
to restore any Office Space which does not then constitute the Premises at the time of such
casualty. If (i) the Premises is rendered wholly untenantable by fire or other cause (ii) the
Premises is damaged by fire or any other cause during the last two (2) years of the Term and the
extent of the damage exceeds fifty percent (50%) of the value of the Premises (as reasonably
determined by the Landlord’s Architect) or (iii) the Building containing the Premises is damaged
(whether or not the Premises are damaged) to an extent of more than fifty percent (50%) of the fair
market value thereof, then the Landlord may at its option terminate this Lease by notifying the
Tenant within sixty (60) days after the date of such damage; provided, however that notwithstanding
the foregoing, the Landlord may only terminate this Lease if it also terminates all other leases in
areas materially affected by the fire or other casualty in the Building. If such notice of
termination is given, then this Lease shall expire sixty (60) days after such notice is given, (ii)
the Tenant shall surrender possession of the Premises promptly thereafter and (iii) the Base Rent
and the Additional Rent hereunder shall be apportioned as of the date of surrender.
(b) If fire or other casualty occurs and the extent of the damage is less than fifty percent
(50%) of the Development (as reasonably determined by the Landlord’s Architect), or if despite the
extent of the damage the Landlord elects not to terminate this Lease, the Landlord shall restore
the Development, including the Building and the Premises (including, without limitation the Tenant
Improvements, Building Improvements and Alterations, except the
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Landlord shall have no obligation under this Lease to restore any Office Space which does not then constitute the Premises at the
time of such casualty), with reasonable promptness, subject to delays beyond the Landlord’s
control, labor troubles or delays in making insurance adjustments.
(c) The Tenant shall have the option of terminating this Lease if: (i) the Landlord has failed
to commence repairs or restoration within one hundred thirty-five (135) days of the date of fire or
other casualty or (ii) if the Landlord has failed to substantially restore the damaged Development,
Building or Premises within two hundred seventy (270) days of the fire or other casualty without
extension for delays by a Force Majeure Event, except in this circumstance such extension for Force
Majeure Event cannot exceed in any event ninety (90) days (the “Restoration Period”) and the Tenant
gives the Landlord notice of the termination within fifteen (15) days after the end of the
Restoration Period or (iii) the Premises are damaged to an extent of fifty percent (50%) or more of
the fair market value thereof (reasonably determined by the Landlord’s Architect) during the last
two (2) years of the Term.
(d) So long as the Landlord has kept in force and effect its fire and casualty insurance on
the Development as required by this Lease, then the Landlord’s obligation to repair or restore the
Premises shall be conditioned upon the availability to the Landlord of a sufficient amount of
insurance proceeds for such repair and restoration. The Landlord shall not be obligated to restore
or replace any of the Tenant’s Property. Except as stated in Section 10.05, the Landlord shall not
be liable for any damage or inconvenience to the Tenant resulting in any way from any such damage
or the restoration thereof.
(e) If such damage renders the Premises entirely unusable for the purposes contemplated in
this Lease, and this Lease is not terminated as provided for herein, the Rent shall xxxxx from the
date of the damage until the Premises are restored sufficiently to make the Premises usable for
said purpose. If the Premises are partially damaged but the Tenant can, in the Tenant’s sole
business judgment use and occupy the remaining part, then the Base Rent and the Additional Rent
shall be equitably reduced proportionately to the Rentable Area of the unusable part from the date
of the damage until restored sufficiently to make the unusable part usable again.
ARTICLE XI
INSURANCE
INSURANCE
Section 11.01 — Insurance
(a) The Tenant shall maintain, continuously during the Term, fire and extended coverage
insurance (including sprinkler leakage where applicable) covering the Tenant’s Property, and
property leased to the Tenant within the Premises, in an amount equal to the full replacement cost
thereof, as well as any insurance that may be expressly required elsewhere in this Lease with
respect to the ATM, Com Gear and/or the Tenant’s exterior Building signage, including without
limitation all of the Tenant’s signage on the top of the Building. The Tenant shall maintain
during the Term general comprehensive liability insurance and insurance to cover contractual
liability arising under this Lease, and the Tenant’s legal liability and non-owned auto
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liability, in amounts, satisfactory to the Landlord but in any event not more than Five Million and No/100
Dollars ($5,000,000.00) combined single limit, together with worker’s compensation insurance in
statutory limits endorsed with a waiver of subrogation endorsement in favor of Landlord (if
permitted by applicable law) and employer’s liability insurance with a minimum limit of Five
Hundred Thousand and No/100 Dollars ($500,000.00). The Tenant also shall maintain business
interruption insurance in the amount of at least Five Million and No/100 Dollars ($5,000,000.00)
per occurrence. In addition to the foregoing insurance requirements, the Tenant shall require that
any general contractor of the Tenant or the Landlord performing any construction or other work on
the Premises shall have at all times liability insurance in the amounts set forth hereinabove and
that such insurance shall also include insurance for completed coverage and contracted products at
least in the amount of Five Million and No/100 Dollars ($5,000,000.00), and, in all such cases,
such insurance shall be subject to the provisions of subparagraph (c) hereinbelow. In addition to
the foregoing insurance requirements, the Tenant shall require that any subcontractor or other
agent of the Tenant or the Landlord performing any construction or other work on the Premises shall
have at all times liability insurance in the amounts set forth hereinabove and that such insurance
shall also include insurance for completed coverage and contracted products at least in the amount
of Two Million and No/100 Dollars ($2,000,000.00), and, in all such cases, such insurance shall be
subject to the provisions of subparagraph (c) hereinbelow.
(b) Each such policy required under subparagraph 11.01(a) above shall be in form and content
and issued by solvent and responsible insurers which are admitted carriers in Florida, and shall
name the Landlord, the Landlord’s managing agent, and any Mortgagee of the Premises as additional
insured, as their interests may appear, except with respect to employer’s liability
insurance, worker’s compensation insurance and the Tenant’s insurance of the Tenant’s
Property. The Tenant shall furnish the Landlord satisfactory written evidence of the issuance of
such policies, and of written evidence of continuation of such policies not less than ten (10) days
prior to their respective expiration dates. The cost or premium for each policy shall be paid by
the Tenant. The Tenant agrees that if it fails to maintain such insurance, the Landlord will have
the right (but not the obligation) to do so (which shall impose no liability upon the Landlord) and
to pay the premium therefore, and in such event the Tenant shall repay the Landlord within thirty
(30) days after receipt of the Landlord’s invoice, as Additional Rent, the amount paid as premiums.
(c) Throughout the Term, the Landlord shall keep or cause to be kept for the mutual benefit of
Landlord, and Tenant, Commercial General Liability Insurance (1986 ISO Form or its equivalent) with
a combined single limit, each occurrence and general aggregate-per location of at least Five
Million and No/100 Dollars ($5,000,000.00), which policy shall include contractual liability
coverage. The deductible for such insurance shall not exceed Twenty-Five Thousand and No/100
Dollars ($25,000.00). Throughout the Term, the Landlord shall keep the Development, and Building,
including the improvements to the Premises (but excluding Tenant’s Property), insured against
damage and destruction by perils insured by the equivalent of ISO Causes of Loss — Special Form
Property Insurance in the amount of the full replacement value of the Building with commercially
reasonable deductibles not to exceed Fifty Thousand and No/100 Dollars ($50,000.00). The Landlord
may obtain any other insurance as the Landlord or
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any Mortgagee may determine advisable. The Tenant shall be named as an additional insured as it interests may appear on the Landlord’s
commercial general liability insurance policy.
(d) Except with respect to the liability insurance policies required by this Section, neither
the Landlord nor the Tenant shall maintain separate insurance concurrent in form or contributing in
the event of loss with any other insurance required under this Lease, unless both the Landlord and
the Tenant are included therein as insured parties with loss payable as provided in this Lease;
provided however that the failure of either party to name the other as an additional insured in
such a policy shall not be deemed to be an Event of Default under this Lease, unless such failure
is not cured within thirty (30) days of actual notice. In addition, each party agrees that to the
extent there is a claim under a policy pursuant to which the other party should have been entitled
to collect as an insured party pursuant to this Section 11.01(d) but for the fact that such party
was omitted as an additional insured party, that the insured party shall reimburse the omitted
party to the extent that such omitted party would have been entitled to coverage as its interests
may appear. All such reimbursements shall be paid by the insured party to the omitted party no
later than thirty (30) days after the insured party’s insurance claim is approved for payment by
its insurer. Each party shall immediately notify the other of the placing of any such separate
insurance.
(e) Except as set forth hereinabove, all insurance policies required under this Lease shall
include a waiver by the insurer of all rights of subrogation against the Landlord and the Tenant
respectively (and all other companies respectively owned, operated or controlled by or affiliated
with any of them or any owners, officers, directors, shareholders or members of any such
affiliates) in connection with any loss or damage thereby insured against. Neither the Landlord
nor the Tenant, nor their respective agents, employees or guests, shall be liable to the
other for any loss or damage caused by any risk covered by such insurance, provided that such
policies shall be obtained. If such policies shall not be obtainable or shall be obtainable only
at a premium over that chargeable without such waiver of subrogation, then the party seeking such
policy shall notify the other thereof in writing, and the latter shall have ten (10) days
thereafter either (i) to procure such insurance in companies reasonably satisfactory to the first
party or (ii) to agree to pay such additional premium or (iii) to agree to waive the requirement of
a waiver of subrogation. If neither (i) nor (ii) nor (iii) is done, then this subsection shall
have no effect during such time as such policies shall not be obtainable or the party in whose
favor a waiver of subrogation is desired shall refuse to pay the additional premium or refuse to
waive the requirement of a waiver of subrogation. If such policies shall at any time be
unobtainable, but shall subsequently become obtainable, neither party shall be subsequently liable
for a failure to obtain such insurance until a reasonable time after notification by the other
party of such obtainability. The policies shall contain an endorsement providing that the insurers
under such policies shall notify the Landlord, any Mortgagee, the Tenant and any other insured
party in writing at least thirty (30) days prior to any material change or cancellation thereof.
Upon written request of either the Landlord or the Tenant, the other party shall provide to the
requesting party no more frequently than at six (6) month intervals with true copies of all such
policies which are the subject of this Article 11; provided, however, that upon a change of insurer
or in coverage, the insured party shall provide to the other party a true copy of such policies.
The insurance policies of the Tenant and the Landlord, with respect to this Lease shall
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be issued by insurance companies licensed to do business in the state in which the Premises are located with
a general policyholder’s ratings of at least A- and a financial rating of at least VI in the most
current Best’s Insurance Reports, or if the Best’s ratings are changed or discontinued during the
Term of this Lease, the parties shall agree to a comparable method of rating insurance companies.
ARTICLE XII
LIABILITIES
LIABILITIES
Section 12.01 — Force Majeure
A “Force Majeure Event” shall occur whenever and to the extent that the Landlord or the Tenant
shall be unable to fulfill, or shall be delayed or restricted in the fulfillment of any obligation
other than the payment of any money under any provision of this Lease, including any circumstances
caused by any strike, lockout, war or acts of military authority, rebellion or civil commotion,
fire or explosion, flood, wind, water, earthquake, act of God or other casualty or by reason of
being unable to obtain any materials, goods, equipment, services, utilities or labor required to
enable such party to fulfill such obligation or by reason of any law or by reason of the order or
direction of any administrator, controller or board or any governmental department or officer or
other authority, or by reason of inability to obtain any permission or authority required thereby,
or by reason of any other cause beyond its control or not wholly or mainly within its control,
whether of the foregoing character or not, and not caused by its default or its act of commission
or omission and not avoidable by the exercise of reasonable effort or foresight by it, the Landlord
or the Tenant, as the case may be, shall so long as any such impediment exists, be relieved from
the fulfillment of such obligation and the other party hereto shall not be entitled to compensation
for any damage, inconvenience, nuisance or discomfort thereby occasioned.
Notwithstanding anything in this Lease to the contrary, if the Landlord or the Tenant shall be
delayed in the performance of any act required under this Lease by reason of any Force Majeure
Event, then provided notice of the Force Majeure Event is given to the other party within ten (10)
days after its occurrence, performance of the act shall be excused for the period of the delay and
the period for the performance of the act shall be extended until the earlier of (i) the
performance of the act or (ii) the expiration of a period equivalent to the period of the delay,
but in no event, more than one hundred thirty-five (135) days.
Section 12.02 — Claims for Compensation
No claim for compensation shall be made against the Landlord by the Tenant by reason of
inconvenience, damage or annoyance arising from the necessity of complying with any directives of
governmental authorities (including without limitation any evacuation of the Premises), howsoever
the necessity may arise. The provisions of this Section 12.02 are not intended to be in derogation
of any of the Tenant’s other rights as set forth in this Lease.
Section 12.03 — Responsibility for Premises and Development
The Tenant’s obligations related to the Premises as set forth in this Lease shall
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commence after the Initial Premises are Substantially Complete on a floor by floor basis. The Landlord
shall have no risk of loss for any Tenant Property in the Premises unless due to the gross
negligence or willful misconduct of the Landlord.
Section 12.04 — Mutual Indemnification
To the fullest extent permitted by law, the Tenant shall indemnify, defend, and save harmless
the Landlord and the Landlord’s officers, directors, shareholders, affiliates (and any officers,
directors and shareholders of such affiliates), employees, agents, and contractors (the “Landlord
Indemnitees”) from and against any and all liability (including reasonable attorneys’ fees)
resulting from claims against the Landlord Indemnitees by third parties in connection with or
arising out of the Premises (inclusive of the any ATM(s) and the Tenant’s Sign), regardless of
whether or not the claim is caused by the negligence of any Landlord Indemnitee. Similarly, to the
fullest extent permitted by law, the Landlord shall indemnify, defend, and save harmless the Tenant
and the Tenant’s officers, directors, shareholders, affiliates (and any officers, directors and
shareholders of such affiliates), employees, agents, and contractors (the “Tenant Indemnitees”)
from and against any and all liability (including reasonable attorneys’ fees) resulting from claims
against the Tenant Indemnitees by third parties in connection with or arising out of the
Development (excluding the Premises), regardless of whether or not the claim is caused by the
negligence of any Tenant Indemnitee. If any action is brought against an indemnified party for
which the aforementioned indemnity obligations apply, then upon notice from the indemnified party
indemnitor, at its sole cost and expense, shall defend the same through counsel reasonably
acceptable to the indemnified party.
If Landlord lawfully re-enters the Premises or terminates this Lease pursuant to any of the
provisions of this Lease, the Tenant hereby waives all claims for damages which may be
caused by such re-entry or termination by the Landlord. No such lawful re-entry or termination
shall be considered or construed to be a forcible entry.
Section 12.05 — Additional Tenant Indemnification
In addition to the obligations set forth in Addendum “1” related to the ATM, the Tenant
further agrees to indemnify, defend, and save the Landlord harmless from and against any damage or
loss, including reasonable attorneys’ fees, incurred by the Landlord as a result of any liens or
other claims arising out of or related to work performed in the Premises by or on behalf of the
Tenant.
Section 12.06 — Limited Liability of the Landlord
Subject to the terms of the SNDA, the term “Landlord” as used in this Lease shall mean only
the owner (or mortgagee in possession for the time being) of the Building so that in the event of
sale of the Building (including, without limitation, any Mortgagee, assignee or designee of any
Mortgagee that acquires title to the Building) or an assignment of this Lease, upon notice to the
Tenant of such transfer and written assumption by such successor in writing of all obligations
arising subsequent to such transfer, the selling or assigning by the Landlord shall be
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and is hereby entirely freed and relieved of all obligations of the Landlord subsequently accruing, except
for (i) any security fund or letter of credit posted by the Landlord prior to the date of sale to
secure any then uncompleted Landlord’s obligation under this Lease, including without limitation,
the Work Letter (collectively, the “Posted Security”), (ii) uncured Landlord defaults which exist
on the date of transfer and (iii) the Landlord’s indemnification obligations hereunder which relate
to matters arising during that part of the Term of this Lease during which the Landlord owned the
Building. The Tenant specifically agrees, except in the event of fraud or willful misconduct or
with respect to the Security Deposit, to look solely to the Landlord’s (or its successors’) right,
title and interest in (y) the Posted Security and (z) the Building, including, but not limited to
the net sale proceeds therefrom, net insurance proceeds, condemnation proceeds and rent proceeds
subject to the interest of any Mortgagee therein, for the recovery of any judgment from the
Landlord — it being agreed that the Landlord (or if the Landlord is a partnership, its partners
whether general or limited, or if the Landlord is a limited liability company, its members and
managers, or if the Landlord is a corporation, its directors, officers or any successors in
interest) shall never, except in the event of fraud or willful misconduct or with respect to the
theft or conversion of the Security Deposit, be personally liable for any such judgment. The
provision contained in the foregoing sentence is not intended to, and shall not, limit any right
that the Tenant might otherwise have to obtain injunctive relief against the Landlord or the
Landlord’s successors in interest, or to maintain any suit or action in connection with enforcement
or collection of amounts which may become owing or payable under or on account of insurance
maintained by the Landlord. Except as limited by this Section 12.06, nothing set forth herein shall
be deemed as a waiver of any party’s legal remedies.
ARTICLE XIII
DEFAULT BY TENANT
DEFAULT BY TENANT
Section 13.01 — Events of Default
The occurrence of any one or more of the following events set forth below shall constitute an
“Event of Default”:
(a) if the Tenant fails to pay any Base Rent and any other regularly scheduled Additional Rent
(and those components of Additional Rent relating to Operating Expenses, the ATM, the Sign, to the
extent applicable, Sales Taxes, except to the extent where a longer period of time is permitted by
the terms of this Lease), that the Tenant is obligated to pay, within five (5) Business Days after
receipt of written notice that the payment was not delivered when due under this Lease; or
(b) if the Tenant fails to pay any Additional Rent that is not regularly scheduled that the
Tenant is obligated to pay, within thirty (30) days after receipt of written notice that the
payment was not delivered when due under this Lease; or
(c) if the Tenant fails to perform any obligation under this Lease other than the payment of
Rent within thirty (30) days after the Tenant’s receipt of written notice specifying the failure,
or if such failure cannot be cured within such thirty (30) day period, the Tenant fails to
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commence curing within thirty (30) days after notice, or thereafter fails to continue to pursue the cure
diligently to completion, provided that if any failure under this subsection creates a hazardous
condition, cure of such failure must be commenced immediately; or
(d) if the Tenant files a petition in bankruptcy or commences any proceeding under any
bankruptcy, or similar law or statute providing relief to debtors, or if the Tenant consents to or
acquiesces in the commencement of any such proceeding against any of them or the entry of an order
for relief with respect to any of them; or if any such petition is filed or proceeding commenced
against any of them which is not dismissed for thirty (30) days or more or in which an order for
relief is entered; or
(e) if the Tenant applies to any tribunal for the appointment of a receiver or similar
official for all or a substantial part of the property of the Tenant; of if the Tenant consents to
or acquiesces in any such appointment made at the request of any other person; or if the Tenant
suffers the appointment of any such official to continue un-discharged for thirty (30) days or
more; or
(f) if the Tenant makes an assignment for the benefit of creditors, or becomes insolvent or
unable to pay their respective debts when due, or, admits in writing such insolvency or inability,
or files any proceedings to declare such insolvency or inability, or if such proceedings shall be
filed against any of them and is not dismissed within thirty (30) days; or
(g) if the Tenant’s leasehold interest hereunder (or a portion thereof) is levied upon or
attached by process of law and the Tenant fails to cause such levy or attachment to be dismissed or
dissolved within thirty (30) days after its filing.
Section 13.02 — Remedies
If an Event of Default on the part of the Tenant occurs, the Landlord at the Landlord’s option
may exercise any one or more of the following remedies, in addition to all other rights and
remedies provided under law:
(a) The Landlord may terminate this Lease and obtain possession of the Premises by summary
process.
(b) If this Lease is terminated, or if the Premises or any part thereof shall be abandoned or
vacated without the payment of Rent prior to termination, the Landlord, may relet the Premises, or
any vacant part thereof, on such terms and conditions as the Landlord may determine in its sole
discretion, provided that in the event of reletting of the Premises the Landlord shall account to
the Tenant for any monies received during the balance of the Term in the same manner as provided
for in Section 13.02(c).
(c) The Tenant shall be fully responsible to the Landlord for damages for breach of this
Lease, including, without limitation, the Special Damages (as defined hereinbelow) and the right to
recover the difference between (i) the Base Rent, the Additional Rent, and all the other
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Rent provided for in this Lease over the Term and (ii) the net proceeds of reletting the Premises under
subsection (b) over the Term, after deducting all of the Landlord’s reasonable and documented
expenses in connection with repairing the Premises for such reletting, including all repossession
costs, brokerage commissions, legal expenses and attorneys’ fees and costs of preparing the
Premises for reletting (collectively, the “Reletting Expenses”). The Tenant shall pay such damages
to the Landlord on a monthly basis on the same date as monthly installments of the Base Rent are
due.
(d) Rather than recover damages from the Tenant on a monthly basis as set forth in subsection
(c), the Landlord may elect at any time without further notice to recover from the Tenant as
damages an amount equal to the difference between (i) the Base Rent and the Additional Rent in this
Lease from the date of such breach to the date of expiration of the Term, such amount to be
discounted to its present value at a discount rate equal to the Triple-B rated corporate bond rate
(as set forth in The Wall Street Journal at such time) with the closest maturity to the remaining
term of the Lease (the “Discount Rate”) and (ii) the then fair and reasonable rent value of the
Premises for the same period (less the Reletting Expenses), such amount to be discounted to its
present value at the Discount Rate, all reduced by the sum of any such monthly damages payments
previously recovered under subsection (c), if any. Such damages as are provided for in this
Section 13.02(d) shall be due and payable to the Landlord immediately upon the Tenant’s default and
without regard to whether this Lease is terminated or not. If the Premises or any part thereof are
relet by the Landlord before presentation of proof of such stipulated damages as are provided for
in this Section 13.02(d), the amount of rent payable to the Landlord upon such reletting shall
prima facie be the fair and reasonable rental value for the part or the whole of the
Premises so relet during the term of the reletting.
(e) On the occurrence of an Event of Default and after expiration of the initial applicable
notice and cure period, and subject to terms and conditions provided herein, the Landlord may,
provided that such Event of Default is a monetary Event of Default (i.e., the Tenant’s failure to
pay monies as required under this Lease prior to an Event of Default,
including without limitation the payment of any Security Deposit required hereunder) declare
due and payable, after an additional thirty (30) days’ notice to the Tenant and opportunity to
cure, the entire remaining Base Rent (as adjusted over the Term) and Additional Rent for the
remainder of the then current Term; provided, however such sum shall be reduced to present value at
the Discount Rate. In addition, should there be alleged any non-monetary Event of Default and an
action is filed by Landlord related to such non-monetary Event of Default, Landlord shall have the
right to bring a contingent claim in such action to have the court declare due and payable the
entire remaining Base Rent (as adjusted over the Term) and Additional Rent for the remainder of the
then current Term (provided such sum shall be reduced to present value at the Discount Rate) if (i)
Landlord obtains a non-appealable final judgment with respect to such non-monetary Event of
Default, and (ii) Tenant does not pay the Special Damages set forth under Section 13.02(g) hereof
within thirty (30) days of issuance of such non-appealable final judgment. For the avoidance of
doubt, for any alleged Event of Default, the intent of the previous sentence is to provide the
Landlord with a remedy to allow it to seek recovery of not only the damages under Section 13.02(g),
but to the extent that the Tenant does not remit such damages within the time frame set forth
above, to allow the Landlord to receive a consent judgment for all
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remedies due under this Section 13.02(e) without further action on the part of the parties. Notwithstanding anything in this
Section 13.02(e) to the contrary, to the extent that such Event of Default occurs prior to the date
that would have been the effective date of termination of this Lease had the Tenant exercised the
Tenant’s Termination Right provided for in Section 3.09, then such balance of Base Rent (as
adjusted over the Term) and Additional Rent shall only be calculated through such effective date of
termination as if the Tenant had exercised the Tenant’s Termination Right, but, in such event, in
addition to such accelerated Rent, such Termination Fee described for in Section 3.09 shall be due
from the Tenant to the Landlord (excluding however, the portion of the Termination Fee consisting
of the six (6) months of the Base Rent and Additional Rent), and such sum (i) shall be immediately
due and payable and (ii) shall be reduced to present value at the Discount Rate. Provided,
however, with respect to such reletting, the Landlord shall thereafter account to the Tenant for
any amount of rent actually received by the Landlord (less any Reletting Expenses) and pay to the
Tenant the resulting net amount no less frequently than every six (6) months during the remainder
of the then current Term with respect to the Premises, in mitigation of the Landlord’s damages.
(f) The Landlord may perform the obligations of the Tenant, and if the Landlord, in doing so,
makes any reasonable expenditures, including reasonable attorneys’ fees, the sums so paid shall be
paid by the Tenant to the Landlord within thirty (30) days of delivery of an invoice or statement
to the Tenant therefore. If the Term shall have expired at the time of the making of the
expenditures by the Landlord arising because of an act or omission of the Tenant of a duty required
of the Tenant, the sums shall be recoverable by the Landlord as damages. Any exercise by the
Landlord of its rights under this subsection or under any other reservation of a right by the
Landlord to enter upon the Premises and to make or perform any repairs, the alterations, or other
work in the Premises, which, in the first instance, is the Tenant’s obligation under this Lease,
shall not be deemed to (i) impose any obligation on the Landlord to do so, (ii) render the Landlord
liable to the Tenant or any third party for the failure to do so or (iii) relieve the Tenant from
any obligation to indemnify the Landlord as otherwise provided elsewhere in this Lease. This
section shall survive the expiration or sooner termination of this Lease.
(g) Tenant recognizes that the Landlord shall have spent considerable sums for the benefit of
the Tenant pursuant to this Lease for the Tenant’s Premises and other costs associated herewith to
accommodate the Tenant’s needs in connection with the Premises and, in that regard, the parties
agree that should an Event of Default occur under this Lease at any time, then in addition to all
other remedies provided for in this Lease, the Tenant shall pay and the Landlord shall be entitled
to recover the payment by the Tenant of Special Damages (as defined hereinbelow) and that such sums
are paid as Special Damages, and not as a penalty, but as a measure of the financial damages to the
Landlord caused by an Event of Default (unrelated to Rent, Additional Rent or Reletting Expenses)
and in further recognition that the Landlord has spent considerable sums for the benefit of the
Tenant, the Tenant’s Premises, and for other costs associated with this Lease. For purposes hereof
“Special Damages” shall mean the sum of (1) the actual amount the Landlord paid to AT&T for the
right or privilege of the Landlord (or its agents) to remove AT&T’s sign from the top of the
Building, and (2) any reduction in base rent, additional rent and other cash expenses paid or
granted by the Landlord to AT&T to induce AT&T to permit the Landlord (or its agents) to remove
such signage; provided however, that
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such Special Damages shall not exceed [**REDACTED**] in the aggregate. The Special Damages shall be amortized on a straight
line basis over the Initial Term determined as of the date of the Event of Default and shall not be
subject to discount. The Landlord and the Tenant agree that the Special Damages expressly provided
for in this Section 13.02(g) shall be in addition to, and not included, in the amounts due the
Landlord for Rent or other amounts under other provisions of Section 13.02 and in no case shall
such Special Damages be subject to Landlord’s obligation to mitigate its damages hereunder.
(h) The exercise by the Landlord of any one or more of the rights and remedies provided in
this Lease shall not prevent the subsequent exercise by the Landlord of any one or more of the
other rights and remedies as set forth herein. All remedies provided for in this Lease are
cumulative and may, at the election of the Landlord, be exercised alternatively, successively, or
in any other manner and are in addition to any other rights provided for or allowed by law or in
equity. If any remedy is limited by any mandatory law binding upon the Landlord, such remedy shall
not be void but shall be limited only to the extent required by such law.
Section 13.03 — Landlord’s Default
If the Landlord fails to perform any of its obligations hereunder [other than (i) the
obligation to pay money to the Tenant, (ii) the obligation of the Landlord to fund or perform the
Total Work within the time parameters set forth in the Work Letter, (iii) the obligation to provide
the Posted Security within the time parameters set forth in the Work Letter, or (iv) or any other
obligation of the Landlord described in Article XV, which contains a separate notice and cure
period], the Tenant (except in the case of an emergency) shall take no action without having first
given Landlord thirty (30) days written notice describing with specificity any such failure and
providing the Landlord the opportunity to cure such failure; provided, however, that if the nature
of the Landlord’s failure is such that it cannot reasonably be cured within such thirty (30) day
period, the time for curing such failure shall be extended for such period of time as may be
necessary to complete such cure, so long as the Landlord shall proceed promptly to cure same and
shall prosecute such cure continuously, in good faith and with due diligence and care; provided
further, that if any failure under this subsection materially interferes with the Tenant’s
use and occupancy of the Premises, such cure must be commenced immediately. Following notice of
such default and failure by the Landlord to cure within such period, the Tenant shall have all
rights available to it at law or in equity, and shall have the further right to take the necessary
actions to perform the Landlord’s uncured obligations hereunder which materially affect the
Tenant’s business operations at the Premises (excluding, however, any obligation related to
janitorial services pursuant to Section 5.01, and any obligations under Sections 15.01 to 15.07)
and invoice the Landlord for the reasonable expenses thereof. If the Tenant has obtained an
invoice or other documentation setting forth the reasonable costs it incurred in curing any such
default by the Landlord which materially affect the Tenant’s business operations at the Premises
which has not been cured within the applicable cure period above and has paid such costs, then the
Tenant shall have the right to offset and deduct said sum from its next payment(s) of Rent at which
time the Tenant shall provide Landlord with copies of such paid invoices or other documentation.
If the Tenant is entitled to reimbursement or payment from the Landlord pursuant to this Lease and
such payment is not made within thirty (30) days after
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written notice from the Tenant that the payment was not delivered when due, the Tenant, in addition to all other rights and remedies it has
under this Lease, at law or in equity, shall have the right to offset and deduct said sum from its
next payment(s) of Rent.
Notwithstanding anything contained in this Lease to the contrary, in the event that the
Landlord (i) violates the provisions of this Lease with respect to the Tenant’s parking rights, or
(ii) violates the Tenant’s rights with respect to the Tenant’s Sign (as such term is defined in
Addendum “2”) as provided in Addendum “2” or the Tenant’s roof use rights as provided in Section
15.10, or (iii) violates or permits the violation of Tenant’s exclusive use and/or ATM rights under
this Lease, or (iv) violates the obligation of the Landlord to fund or perform the Total Work
within the time parameters set forth in the Work Letter, or (v) violates the obligation to provide
the Posted Security within the time parameters set forth in the Work Letter, inasmuch as the
Tenant’s remedies for such violations would be inadequate at law, the Tenant may seek to enforce
the terms thereof by injunctive or other equitable relief, including without limitation both
prohibitory and mandatory injunctive relief.
Section 13.04 — Landlord Mitigation
Notwithstanding the foregoing, the Landlord agrees to proceed in good faith and use all
reasonable efforts to mitigate its damages resulting from a default by the Tenant under this Lease.
The Tenant agrees that if the Landlord markets the Premises in a manner substantially similar to
the manner in which the Landlord markets other space in the Building, then Landlord shall be deemed
to have used commercially reasonable efforts to mitigate damages.
ARTICLE XIV
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 14.01 Entire Agreement
The Building Rules and any other Exhibits, Addenda or Schedules and plans attached hereto are
incorporated herein, and together with the terms and conditions of this Lease and the SNDA,
constitute the entire agreement entered into by the Landlord and the Tenant and supersede all
previous written or oral agreements of representations made by anyone in reference to the Premises
or the Development. Neither the Tenant nor the Landlord will make a claim against the other on
account of any representations whatsoever, whether made by any leasing agent, broker, officer or
other representative of the Landlord or the Tenant or which may be contained in any circular,
prospectus or advertisement relating to the Premises or the Development, or otherwise, unless the
same is specifically set forth in this Lease. Tenant acknowledges and agrees that the terms of
this Lease are in all respects subject to the terms of the SNDA.
Section 14.02 — Modification
No changes in or waiver of any provisions of this Lease subsequent to the execution hereof
shall be binding unless executed in writing by the Landlord and the Tenant or by a
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managing agent appointed by the Landlord or the Tenant, as the case may be, with actual authority. No party other
than the Landlord or the Tenant is authorized to amend this Lease.
Section 14.03 — Severability
If any provision of this Lease is declared to be illegal or unenforceable by a court of
competent jurisdiction, it shall be considered separate and severable from the remaining provisions
of this Lease, which shall remain in force and be binding as though the provision had never been
included, and there shall be deemed substituted for the affected provisions a valid and enforceable
provision as similar as possible to the affected provision.
Section 14.04 — Governing Law and Forum
This Lease is made in accordance with and shall be governed by the laws of the State of
Florida, and the Tenant and the Landlord consent to the jurisdiction of the courts of the State of
Florida, either state or federal and agree that service may be made in any manner acceptable for
use in said courts of the State of Florida. In addition, the Tenant and the Landlord irrevocably
and unconditionally waive any objection which such party may now or hereafter have to the laying of
venue of any action, suit or proceeding arising out of or in connection with this Lease in any of
the aforesaid courts, and hereby further irrevocably and unconditionally waive the right to plead
or claim that any such action, suit, or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 14.05 — Waiver of Jury Trial
THE TENANT AND THE LANDLORD HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH
THE TENANT OR THE LANDLORD MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS LEASE.
IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE TENANT
AND THE LANDLORD; AND THE TENANT AND THE LANDLORD REPRESENT THAT NO REPRESENTATIONS OF FACT OR
OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY
MODIFY OR NULLIFY ITS EFFECT.
Section 14.06 — No Partnership
Nothing set forth herein shall be construed to create any relationship between the Landlord
and the Tenant other than the relationship of lessor and lessee.
Section 14.07 — Notice
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Any notice, statement or request given hereunder by the Tenant to the Landlord shall be signed
by or on behalf of the Tenant and shall be sent or mailed by registered prepaid mail or by a
national overnight courier service addressed to the Landlord or its managing agent at the address
set forth below and to any assignee or Mortgagee as required in Article IX. Any notice, statement
or request given hereunder by the Landlord to the Tenant shall be signed by or on behalf of the
Landlord and shall be sent or mailed by registered, prepaid mail or by a national overnight courier
service addressed to the Tenant at the address as set forth below:
| If to Landlord: | El-Ad Florida, LLC | |||
| 0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxxx Xxxxxx | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 000-000-0000 | ||||
| E-mail: xxxxxxx@xxxxxxxxxxxx.xxx | ||||
| With a copy to: | GrayRobinson, P.A. | |||
| 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxx X. Xxxxx | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 904-598-9109 | ||||
| E-mail: xxxxx.xxxxx@xxxx-xxxxxxxx.xxx | ||||
| If to Tenant: | EverBank | |||
| 0000 Xxxxxxx Xxx | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxxx Xxxxxxxxx | ||||
| Vice President | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 000-000-0000 | ||||
| E-mail: xxxxxx.xxxxxxxxx@xxxxxxxx.xxx | ||||
| With a copy to: | EverBank | |||
| 000 Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxxx Xxxxx | ||||
| Senior Vice President & General Counsel | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 000-000-0000 | ||||
| E-mail: xxxxxx.xxxxx@xxxxxxxx.xxx |
Any such notice given as aforesaid shall be conclusively deemed to have been given and
received, if sent hand delivery, on the date of delivery (or the date hand delivery is attempted if
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such be the case) or, if mailed, on the second business day following the date of such
mailing. Notice sent via national overnight courier service shall be deemed delivered on the next
Business Day. Either party may from time to time by notice to the other change the address to
which notices are to be mailed.
Section 14.08 — Brokerage
As part of the consideration for this Lease, the Tenant represents and warrants to the
Landlord that the Tenant has engaged or employed no broker or agent other than CB Xxxxxxx Xxxxx,
Inc., a Delaware corporation, through its office in Jacksonville, Florida. In the event that this
is fully executed and delivered by the Landlord and the Tenant, CB Xxxxxxx Xxxxx shall be entitled
to a broker’s commission for the Landlord to be paid pursuant to a separate written agreement. As
part of the consideration for this Lease, the Landlord represents and warrants to the Tenant that
the Landlord has engaged or employed no broker or agent other than Xxxxx & Xxxxx / Phoenix Realty
Group, Inc., a Florida corporation, through its office in Jacksonville, Florida. In the event that
this is fully executed and delivered, Landlord shall pay Xxxxx & Xxxxx / Phoenix Realty Group,
Inc., pursuant to a separate written agreement. Each party hereby agrees to hold the other party,
its partners and representatives harmless from any and all claims, liabilities, costs and expenses
(including reasonable attorneys’ fees) arising from any claim for any commissions or other fees by
any other broker or agent acting or purporting to have acted on behalf of such party.
Section 14.09 — Radon Gas
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information concerning radon and radon testing may be obtained from your county public
health unit.
Section 14.10 — Lease Not Recordable
This Lease shall not be recorded or registered directly or indirectly in the conveyance
records of Xxxxx County, Florida or any other public records. A memorandum of this lease may be
recorded in accordance with Applicable Law at the sole expense of the requesting party, which
memorandum shall include, at a minimum, information related to the Tenant’s exclusive rights with
respect to, retail branch banking, ATMs, and signage and shall provide that the force and effect of
such memorandum shall terminate upon the recording of an affidavit by the Landlord, or any
successor in interest, that this Lease is terminated; provided, however, that Landlord shall only
record such an affidavit if the Lease is terminated.
Section 14.11 — Survival
Except where otherwise specifically provided in this Lease, notwithstanding (i) the expiration
or sooner termination of this Lease or (ii) the transfer of title to the Development, or a
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portion thereof, to a person other than the Landlord or (iii) the transfer of the leasehold
interest created under this Lease to a person other than the Tenant or (iv) an assignment or a
sublease or other granting of use or possession of any part of the Premises to a person other than
the Tenant, to the maximum extent permitted by law, the covenants and obligations of the parties
hereunder shall survive and shall continue to be fully enforceable, and the parties shall retain
whatever rights and remedies they may have on account of any past or future violation by the other
party of any of its covenants or obligations hereunder, including but not limited to obligations of
indemnity or other obligations to do or to refrain from any particular action, and further
including but not limited to any provisions of this Lease having application to matters pertaining
in any respect to Hazardous Substances.
Section 14.12 — Limitation on Damages
Notwithstanding any other provisions in this Lease, neither Landlord nor Tenant shall be
liable to the other for any special, consequential, incidental or punitive damages.
Section 14.13 — No Waiver
No failure by the Landlord or Tenant, as applicable, to insist upon the strict performance of
any obligation under this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of any Rent during the continuance of any such breach, shall constitute
a waiver of any such breach or obligation. No obligation of the Tenant or Landlord hereunder, and
no breach thereof, shall be waived, altered or modified except by a written instrument executed by
the other party.
Section 14.14 — Interpretation
The table of contents and all captions and section headings contained in this Lease are for
convenience only and shall not affect its interpretation. All references in this Lease to
Exhibits, Addenda, Schedules, articles, sections, subsections, paragraphs and clauses refer to the
respective subdivisions of this Lease, unless such reference expressly identifies another document.
Whenever as used herein and unless the context otherwise requires, words in the singular include
the plural, words in the plural include the singular, personal pronouns include their respective
antecedents, and pronouns of any gender include the other genders. All references in this Lease to
sums expressed in dollars or with the symbol “$” refer to currency of the United States of America.
The Landlord and its successors and assigns, and the Tenant and its permitted successors and
permitted assigns, shall be bound by and be entitled to the benefit of the provisions of this Lease
as if the words “and its successors and assigns” were inserted after the word “Landlord” and as if
the words “and its permitted successors and permitted assigns” were inserted after the word
“Tenant” throughout.
Section 14.15 — Representation and Warranties of Landlord
The Landlord represents, covenants and warrants (i) that the Landlord owns fee simple title to
the Building and Premises and has full right, power and authority to enter into this Lease,
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(ii) to the Landlord’s knowledge, that the Building will be or has been constructed and is
currently being operated in compliance with all applicable laws, codes, ordinances and
regulation including, without limitation, the ADA, (iii) that the permitted use of the Premises
does not currently violate the terms of any of Landlord’s insurance policies, any exclusives of any
of Landlord’s other tenants, any covenants or restrictions of record, or any land use or zoning
ordinance or regulations, (iv) Landlord owns fee title in and to the Building and Premises enabling
Landlord to enter into an enforceable lease with Tenant on the terms herein, (v) except for the
signature contemplated by this Lease, including without limitation the SNDA, no additional
signatories or consents are required to make this Lease binding and enforceable on behalf of
Landlord, (vi) to Landlord’s actual knowledge, there are no encumbrances, liens, agreements,
covenants in effect that would materially limit Tenant’s use of the Building or Premises as
contemplated in this Lease, (vii) the Landlord has no actual knowledge of any impending
condemnation plans, proposed assessments or abnormal increases in Operating Costs or Taxes, or
other adverse conditions relating to the Building or Premises, (viii) to the Landlord’s knowledge
there are no Hazardous Substances located in or on the Premises, (ix) to the Landlord’s knowledge
the Building, Building Land, Premises and Common Areas are in compliance with all laws, ordinances
and regulations governing Hazardous Substances, (x) the Landlord shall use its best efforts to
cause the Building and the Premises to meet all ADA standards as they shall exist on the Term
Commencement Date, (xi) the Building’s fire alarm system was upgraded in 2009 with horn strobes and
it is fully sprinkled for fire protection and (xii) to the best of the Landlord’s knowledge and
belief there is no friable asbestos or other Hazardous Substances in the Building in violation of
Applicable Law, the only asbestos in the Building being non-friable asbestos located in the chilled
water pipe mastic.
Section 14.16 — Waiver of Landlord Lien
Notwithstanding anything contained in this Lease to the contrary, the Landlord hereby waives
any contractual or statutory landlord’s lien (whether now existing or hereafter arising) in all
personal property, fixtures, and equipment owned by the Tenant.
Section 14.17 — Air Quality
The HVAC systems servicing the Premises shall, at all times during the Term of this Lease, be
of sufficient capacity and in good working condition as required to maintain temperature levels
similar to the temperature levels maintained at other similarly situated office buildings in the
Xxxxx County area, but consistent with all binding federal and local energy conservation
regulations (with the inside temperature to be maintained at 70o to 74o FDB
and relative humidity between forty-five percent (45%) and fifty-five percent (55%) ). To the
Landlord’s knowledge, the Landlord represents and warrants that (i) the HVAC systems servicing the
Premises comply with all applicable state and local building codes, the most recent standards
established by the American Society of Heating, Refrigeration, and Air Conditioning Engineers (the
“ASHRAE”) for office buildings similar to the Buildings in which the Tenant leases space, and
standards customarily adopted for high-rise office buildings and (ii) ventilation rates (i.e.,
outside air) comply with the ASHRAE Standard 62, latest edition. The parties agree that the Tenant
may test air quality, at its expense, and the Landlord is responsible for
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remediation of microbial
materials that violate air quality standards; e.g. mold.
Section 14.18 — Time of the Essence
Time is of the essence under this Lease, and all provisions herein relating thereto shall be
strictly construed.
Section 14.19 — Right of Termination
Notwithstanding anything to the contrary herein, the Office of the Comptroller of the Currency
(the “OCC”) or any successor agency under Federal law may terminate this Lease without penalty
after reasonable notice to Landlord in the event that (i) the Tenant is determined to be in a
“troubled condition” pursuant to the provisions of 12 CFR Section 563.555 (or similar requirements
of any successor agency under Federal law to the OCC) and the Tenant is taken over by the OCC or
any successor agency under Federal law or (ii) the OCC or any successor agency under Federal law
formally objects to this Lease; provided, however, this provision shall not operate to reduce the
priority or amount of any claim available to the Landlord in the event of such takeover and
termination except as provided by law. In the event that the OCC, or any successor agency under
Federal law, assigns the Lease to a third party in connection with the transfer of some or all of
the assets of the Tenant, then to the extent permitted by Applicable Law, the Termination Right
under Section 3.09 of this Lease shall automatically cease and terminate and have no further force
or effect.
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ARTICLE XV
SPECIAL PROVISIONS
SPECIAL PROVISIONS
Section 15.01 — Auditorium Usage; Surround Areas
During the Term of this Lease, the Tenant, at no additional cost to the Tenant, shall have the
non-exclusive right to use the Auditorium in common with other tenants of the Building, and other
parties as permitted by the Landlord from time to time. Tenant and other tenants of the Building
shall have priority to use the Auditorium over permitted parties that are not tenants in the
Building on a first-come first-served basis; provided, however, that the Tenant and other such
parties, including non-tenants, shall reserve the Auditorium in advance on a first come first
served basis and such reservation shall establish a priority right for the reserving party. All
reservations shall be coordinated with the Property Manager. In addition to the rights to use the
Auditorium at no cost, the Tenant shall also have the right at no cost to use surrounding Common
Areas on the second floor in proximity to the Auditorium for lunch, banquet, social or business
events at least four (4) times per calendar year at no rental charge; provided, however, the Tenant
shall be responsible, at its sole cost and expense, to provide janitorial services to clean up the
Auditorium and the surrounding Common Areas immediately after the conclusion of any such event to
the condition that existed immediately prior to such event. In that regard, the Tenant shall
arrange for its own janitorial or support services, unless the Tenant has requested special
services from the Landlord, which, in such case, shall be paid for by Tenant. In all
circumstances, the right to use the Auditorium and surrounding Common Areas shall be operative only
during Business Hours, unless otherwise consented to by the Landlord in writing, such consent not
to be unreasonably withheld, conditioned or delayed. Any usage of the Auditorium or surrounding
Common Areas by Tenant shall not materially disturb the normal operations of the Building,
including, but not limited to, pedestrian ingress and egress to the second floor of the Building
and associated Common Areas and elevators, security kiosks, bathrooms, and other such commonly
shared infrastructure. Also, Tenant shall be required to reserve such events in advance with a
minimum of fifteen (15) days’ notice in writing to the Property Manager, subject to confirmation by
the Property Manager of the availability of such space for the event.
Section 15.02 — Building Fitness Center
No later than September 1, 2012, the Landlord, at its sole cost and expense, shall complete
the construction of and open an on-site fitness center with adequate bathrooms, showers and locker
rooms, available to tenants of the Building and others (the “Fitness Center”). The Fitness Center
shall (i) be of a quality comparable to other unmanned fitness centers located in Class A office
buildings in downtown Jacksonville Florida, (ii) contain equipment comparable to other unmanned
fitness centers located in Class A office buildings in downtown Jacksonville Florida or comparable
size, in good condition and repair, and (iii) contain no less than two thousand five hundred
(2,500) square feet of Rentable Area. The Landlord may lease the Fitness Center to a third party,
directly manage such Fitness Center or arrange for management of the Fitness Center by a third
party fitness center operator (such as the YMCA, Gold’s Gym, or other such provider); provided,
however, that after opening timely, the Fitness Center shall be operated
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by Landlord or its third
party management company during the Term of the Lease. The cost and
expense associated with membership and use of the Fitness Center shall be at market rates as
then provided charged at comparable facilities in the downtown Jacksonville market; provided,
however, during the Term of the Lease such facilities shall be made available to the Tenant’s
employees without cost (except for access passes, if applicable, to such Fitness Center) so long as
no Event of Default has occurred and is continuing. However, Tenant employees shall be responsible
for all costs and expenses associated with exercise classes, personal trainers, spin classes, or
other such organized classes, if any, as provided at the Fitness Center and for which a separate
charge is assessed to Fitness Center users. The use of the Fitness Center by the Tenant’s
employees shall be subject to such employee executing and delivering to the Landlord such use or
membership agreement as the Landlord shall from time to time request, which shall include the
user’s assumption of risk associated with use of a fitness facility. Such membership rules shall
contain the terms relating to access badges or passes, the cost thereof, and other rules as shall
be implemented from time to time by the operator of the Fitness Center, all of which shall be
uniformly and consistently applied to all users of the Fitness Center.
Section 15.03 — Wi-Fi Services
During the term of the Lease, the Landlord shall provide at no cost to the tenants of the
Building wireless hot spots for Wi-Fi connections on the first and second floor of the Building in
Common Areas, at such locations as the Landlord shall determine, for Internet service for use by
guests and tenants of the Building.
Section 15.04 — Sundries Shop
As of the Effective Date, there is located on the ground floor of the Building a sundries
shop. During the Term of this Lease, the Landlord shall use commercially reasonable efforts to
maintain at all times a sundries shop on the ground floor of the Building of a quality comparable
to other sundries shops located in Class A office buildings in downtown Jacksonville Florida. For
purposes hereof, the Tenant acknowledges that as of the Effective Date the existing sundries shop
located on the ground floor of the Building is satisfactory to Tenant. Such Sundries Shop location
shall be subject to none of the Tenant’s rights contained in Sections 3.02, 3.03, 3.04 or 3.05 of
this Lease.
Section 15.05 — Food Court Renovation
(a) The Landlord, at its sole cost and expense, shall have substantially renovated the food
court area and related seating area located on the second floor of the Building and the second
floor bathroom at a level comparable for a Class A office building in downtown Jacksonville Florida
in sufficient capacity to properly service the number of occupants in the Building, which
renovations shall be completed no later than September 1, 2012. Thereafter, throughout the Term of
the Lease, the Landlord shall use commercially reasonably efforts to attract and retain from time
to time food vendors to occupy the food court area for the service and sale of food and beverage
products and in a quality acceptable for a Class A office building. The Landlord’s efforts shall
include, without limitation, commercially reasonable efforts to
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provide at all times at least four
(4) different types of food specialties or concepts, e.g. delicatessen, pizzeria, or Asian. As
well, the Landlord shall use commercially reasonable efforts to attract and
retain a national or regional coffee vendor (such as StarBucks or Barnies) to sell coffee
products and related offerings at a location to be determined on the first or second floor of the
Building, and, if the Landlord is unable to obtain and retain such a national or regional coffee
vendor despite its commercially reasonable efforts, then the Landlord shall use commercially
reasonable efforts to locate a local coffee vendor acceptable for a Class A office building (such
as any of the vendors providing coffee service on the ground floor of the Bank of America building
or Omni building as of the Effective Date).
(b) Should the Tenant determine in its commercially reasonable judgment that the Landlord is
failing to fulfill its obligations, as set forth in Section 15.05(a) hereinabove, then the Tenant
shall provide written notice to the Landlord of the Tenant’s assertion that the Landlord is in
breach of its obligations hereunder, which notice shall provide with specificity the obligations
which the Landlord is failing to provide, and a suggested cure of such breach. The Landlord shall
have, in any such circumstance, a period of ninety (90) days to remedy such breach after notice,
provided that Landlord timely commences such cure and thereafter diligently and continuously
prosecutes such cure to completion. In the event that Landlord fails to cure the breach within
such ninety (90) day period, Tenant may at any time after the expiration of such original ninety
(90) day period deliver a second notice to Landlord of such breach and Landlord shall have an
additional ninety (90) day period to cure such breach after notice, provided that Landlord timely
commences such cure and thereafter diligently and continuously prosecutes such cure to completion.
(c) Should the Tenant determine that the Landlord has failed on at least two (2) occasions for
more than ninety (90) days each with respect to the same asserted breach, to cure any such breach
as set forth in Section 15.05(b) hereinabove (the “End of Food Court Cure Period”), then the
Tenant’s sole remedy shall be to file suit seeking a judicial determination that the Landlord has
breached the terms and provisions of Section 15.05(a) (the “Vendor Litigation”). Should the Tenant
prevail in the Vendor Litigation, as evidenced by a non-appealable final judgment in the Tenant’s
favor, or should Landlord cure such breach during the pendency of the Vendor Litigation, then the
Tenant’s exclusive remedy shall be to obtain from the date of the End of Cure Period, a ten percent
(10%) reduction in the Base Rent set forth in Section 4.01 of this Lease, as such rates are then in
effect. Any final judgment in the Tenant’s favor under which the Tenant would be afforded the ten
percent (10%) reduction in the Base Rent must include findings of fact by the Court stating with
specificity the Landlord’s default(s).
(d) The prevailing party in such Vendor Litigation shall be entitled to reimbursement from the
non-prevailing party for all costs and expenses incurred by the prevailing party, including,
without limitation, its reasonable attorneys’ fees at trial and for any appeal related thereto.
The “prevailing party” means the party in whose favor a judgment, decree, or final order is
rendered or the party who obtains the relief sought due to the other party curing the alleged
failure during the pendency of such litigation.
(e) The Tenant’s remedies under this Section 15.05 is the sole and exclusive remedy
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with respect to the defaults asserted by the Tenant contained in this Section 15.05 and shall not avail
the Tenant to any other rights under this Lease, including, without limitation the right of the
Tenant to assert that the Landlord is otherwise in default under the terms and provisions of this
Lease, and the Tenant shall have no remedy to terminate this Lease or seek any other remedy
hereunder for a Landlord default under Section 15.05. Further, should the Landlord remedy the
default asserted by the Tenant during the pendency of any litigation described in this Section
15.05, then the Tenant shall be entitled to (i) the reduction in Base Rent from the End of Cure
Period through the date of such cure in accordance with Section 15.05(c) and (ii) costs and
expenses through such date in accordance with Section 15.05(d). The Rent reduction afforded in
this Section 15.05 shall be operative only during the period commencing on the End of Cure Period
through the date that Landlord cures the default and delivers written notice and evidence of such
cure to Tenant.
(f) Such food court area shall be subject to none of the Tenant’s rights contained in Sections
3.02, 3.03, 3.04 or 3.05 of this Lease.
Section 15.06 — Property Management
(a) During the Term of this Lease, the Landlord shall employ a first class property management
company (the “Property Manager”) with (i) at least one (1) employee with a “Certified Property
Manager” designation, dedicated exclusively to the management of the Building and (ii) such other,
property management and maintenance personnel adequate to maintain the upkeep and maintenance of
the Building to the standards required by this Lease. The Property Manager may be the direct
employee of the Landlord or may be third party agents, hired by the Landlord from time to time to
provide such services. For purposes of this Section 15.06 the Tenant agrees that the existing
Property Manager, as of the Effective Date, is acceptable to the Tenant.
(b) Should the Tenant determine in its commercially reasonable judgment that the Landlord is
failing to fulfill its obligations, as set forth in Section 15.06(a) hereinabove, then the Tenant
shall provide written notice to the Landlord of the Tenant’s assertion that the Landlord is in
breach of its obligations hereunder, which notice shall provide with specificity the obligations
which the Landlord is failing to provide, and a suggested cure of such breach. The Landlord shall
have, in any such circumstance, a period of ninety (90) days to remedy such breach after notice,
provided that Landlord timely commences such cure and thereafter diligently and continuously
prosecutes such cure to completion. In the event that Landlord fails to cure the breach within
such ninety (90) day period, Tenant may at any time after the expiration of such original ninety
(90) day period deliver a second notice to Landlord of such breach and Landlord shall have an
additional ninety (90) day period to cure such breach after notice, provided that Landlord timely
commences such cure and thereafter diligently and continuously prosecutes such cure to completion.
(c) Should the Tenant determine that the Landlord has failed on at least two (2) occasions for
more than ninety (90) days each with respect to the same asserted breach, to cure any such breach
as set forth in Section 15.06(b) hereinabove (the “End of Management Cure
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Period”), then the
Tenant’s sole remedy shall be to file suit seeking a judicial determination that the Landlord has
breached the terms and provisions of Section 15.05(a) (the “Management Company Litigation”).
Should the Tenant prevail in the Management Company Litigation, as evidenced by a non-appealable
final judgment in the Tenant’s favor, or should the Landlord cure
such breach during the pendency of the Management Company Litigation, then the Tenant’s
exclusive remedy shall be to obtain from the date of the End of Management Cure Period, a ten
percent (10%) reduction in the Base Rent set forth in Section 4.01 of this Lease, as such rates are
then in effect. Any final judgment in the Tenant’s favor under which the Tenant would be afforded
the ten percent (10%) reduction in the Base Rent must include findings of fact by the Court stating
with specificity the Landlord’s default(s).
(d) The prevailing party in such Management Company Litigation shall be entitled to
reimbursement from the non-prevailing party for all costs and expenses incurred by the prevailing
party, including, without limitation, its reasonable attorneys’ fees at trial and for any appeal
related thereto. The “prevailing party” means the party in whose favor a judgment, decree, or
final order is rendered or the party who obtains the relief sought due to the other party curing
the alleged failure during the pendency of such litigation.
(e) The Tenant’s remedies under this Section 15.06 is the sole and exclusive remedy with
respect to the defaults asserted by the Tenant contained in this Section 15.06 and shall not avail
the Tenant to any other rights under this Lease, including, without limitation the right of the
Tenant to assert that the Landlord is otherwise in default under the terms and provisions of this
Lease, and the Tenant shall have no remedy to terminate this Lease or seek any other remedy
hereunder for a Landlord default under Section 15.06. Further, should the Landlord remedy the
default asserted by the Tenant during the pendency of any litigation described in this Section
15.06, then the Tenant shall be entitled to (i) the reduction in Base Rent from the End of
Management Cure Period through the date of such cure in accordance with Section 15.06(c) and (ii)
costs and expenses through such date in accordance with Section 15.06(d). The Rent reduction
afforded in this Section 15.06 shall be operative only during the period commencing on the End of
Management Cure Period through the date that Landlord cures the default and delivers written notice
and evidence of such cure to Tenant.
Section 15.07 — Security Guards
(a) During the Term of this Lease, the Landlord shall provide at all times (i) security guards
to provide security service to the Building consistent with other Class A office buildings in
downtown Jacksonville, and (ii) recorded security cameras located throughout the first and second
floor Common Areas of the Building. Such security guards may be the direct employees of the
Landlord or they may be provided through a third party vendor hired by the Landlord as an agent to
provide security to the Building. The Tenant acknowledges and agrees that the security of the
Building and its tenants are of primary importance to such security guards and in that regard such
security guards shall give priority for the safety and security of the Building and its occupants.
Subject to such priority, commencing upon the Interim Rent Commencement Date, during the Term of
this Lease, the security guards shall escort the Tenant’s employees, upon request, on a first-come
first-served basis, to such employees’ parking spaces in any of the
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Parking Facilities, at no cost
to the Tenant.
(b) In lieu of the security guards providing escort services, the Landlord may arrange through
the Downtown Vision’s Ambassador Program for such ambassadors to provide escorts to the Tenant’s
employees to their parking spaces in the Parking Facilities from time to time,
upon request, all on a first-come first-served priority basis, at no cost to the Tenant. The
Tenant acknowledges that the Concierge Parking Service shall have no responsibility for such
employee escort and the Tenant, on its behalf and on behalf of its employees, acknowledges and
agrees that the undertakings herein to provide escort services to employees shall not be a
guarantee that such employee shall be protected from harm, the parties hereto acknowledging and
agreeing that any pedestrian walking the public streets assumes the risk of association with the
public and the criminal element associated therewith from time to time.
(c) Should the Tenant determine in its commercially reasonable judgment that the Landlord is
failing to fulfill its obligations, as set forth in Section 15.07(a) hereinabove, then the Tenant
shall provide written notice to the Landlord of the Tenant’s assertion that the Landlord is in
breach of its obligations hereunder, which notice shall provide with specificity the obligations
which the Landlord is failing to provide, and a suggested cure of such breach. The Landlord shall
have, in any such circumstance, a period of ninety (90) days to remedy such breach after notice,
provided that Landlord timely commences such cure and thereafter diligently and continuously
prosecutes such cure to completion. In the event that Landlord fails to cure the breach within
such ninety (90) day period, Tenant may at any time after the expiration of such original ninety
(90) day period deliver a second notice to Landlord of such breach and Landlord shall have an
additional ninety (90) day period to cure such breach after notice, provided that Landlord timely
commences such cure and thereafter diligently and continuously prosecutes such cure to completion.
(d) Should the Tenant determine that the Landlord has failed on at least two (2) occasions for
more than ninety (90) days each with respect to the same asserted breach, to cure any such breach
as set forth in Section 15.07(c) (the “End of Guard Cure Period”), then the Tenant’s sole remedy
shall be to file suit seeking a judicial determination that the Landlord has breached the terms and
provisions of Section 15.07(a) (the “Guard Litigation”). Should the Tenant prevail in the Guard
Litigation, as evidenced by a non-appealable final judgment in the Tenant’s favor, or should
Landlord cure such breach during the pendency of the Guard Litigation, then the Tenant’s exclusive
remedy shall be to obtain from the date of the End of Guard Cure Period, a ten percent (10%)
reduction in the Base Rent set forth in Section 4.01 of this Lease, as such rates are then in
effect. Any final judgment in the Tenant’s favor under which the Tenant would be afforded the ten
percent (10%) reduction in the Base Rent must include findings of fact by the Court stating with
specificity the Landlord’s default(s).
(e) The prevailing party in such Vendor Litigation shall be entitled to reimbursement from the
non-prevailing party for all costs and expenses incurred by the prevailing party, including,
without limitation, its reasonable attorneys’ fees at trial and for any appeal related thereto.
The “prevailing party” means the party in whose favor a judgment, decree, or final order is
rendered or the party who obtains the relief sought due to the other party curing the
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alleged
failure during the pendency of such litigation.
(f) The Tenant’s remedies under this Section 15.07 is the sole and exclusive remedy with
respect to the defaults asserted by the Tenant contained in this Section 15.07 and shall not avail
the Tenant to any other rights under this Lease, including, without limitation the right of the
Tenant to assert that the Landlord is otherwise in default under the terms and provisions of this
Lease, and the Tenant shall have no remedy to terminate this Lease or seek any other remedy
hereunder for a Landlord default under Section 15.07. Further, should the Landlord remedy the
default asserted by the Tenant during the pendency of any litigation described in this Section
15.07, then the Tenant shall be entitled to (i) the reduction in Base Rent from the End of Guard
Cure Period through the date of such cure in accordance with Section 15.07(d) and (ii) costs and
expenses through such date in accordance with Section 15.07(e). The Rent reduction afforded in
this Section 15.07 shall be operative only during the period commencing on the End of Guard Cure
Period through the date that Landlord cures the default and delivers written notice and evidence of
such cure to Tenant.
Section 15.08 — IT/Technology Access
In addition to the Tenant’s rights in the Common Areas, the Tenant may from time to time
provide written notice to the Landlord that the Tenant requests access to the Building’s IT/telecom
closets, chases, plenums and raceways of the Building for the purposes of installing, maintaining
and replacing conduit and cable supporting Tenant’s operations in the Premises. As soon as
practicable under the circumstances but in no event later than twenty-four (24) hours after notice
to the Landlord, the Landlord shall cause the Landlord’s representative to provide access to any
such IT/telecom closets, chases, plenums and raceways for the purposes stated herein and in all
cases, the Tenant’s employees, agents and contractors must be accompanied by the Landlord’s
representative during all periods of such access. In the event of any emergency or mission
critical situation for the Tenant, the Landlord will make all efforts to immediately provide the
Tenant with access to the Building’s IT/telecom closets, chases, plenums and raceways of the
Building for the purposes of resolving the emergency and/or mission critical situation. The Tenant
releases the Landlord and its managers, officers, directors, shareholders, affiliates (and all
officers, directors, shareholders or members of such affiliate) members, employees and agents, from
any claim, liability, loss or damage arising out of or related to such access and the Tenant
assumes all risk associated with such access, except for the gross negligence or willful misconduct
of the Landlord. In that regard, the Tenant agrees to indemnify, defend and hold harmless the
Landlord and its managers, officers, directors, shareholders, affiliates (and all officers,
directors, shareholders or members of such affiliate) members, employees and agents in connection
with any claim made against the Landlord arising out of the Tenant’s access, except for the gross
negligence or willful misconduct of the Landlord. Upon termination of this Lease, notwithstanding
anything herein to the contrary, the Tenant shall have no responsibility for removing any of the
Tenant’s conduit or cabling from the Premises or elsewhere in the Building, as any of such conduit
or cable may have been installed pursuant to the exercise of the Tenant’s rights contained in this
Section 15.08 or elsewhere in this Lease, and upon expiration or termination of the Lease all of
such conduit or cable then remaining shall be and become Landlord’s property without any further
action on the part of
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Landlord or Tenant.
Section 15.09 — Tenant’s Incidental Non-Exclusive Use Rights
In addition to the Tenant’s to use of the Common Areas of the Building, the Tenant shall also
have the non-excusive right to use in common with other tenants of the Building the loading dock
and freight elevators of the Building during the Term of this Lease without additional charge or
expense. The use of such loading dock and freight elevator shall be coordinated with
the Property Manager. Such access shall be available to Tenant on a first-come first-served
basis with other tenants in the Building. The Tenant’s right to use the loading dock and freight
elevator shall be utilized in a commercially reasonable manner so that such facilities are only
used during active times of unloading and moving freight, furniture, supplies, deliveries and other
materials used by such loading dock and freight elevator. In no event shall the Tenant park, for
any extended period of time, a car, truck or other vehicle at the loading dock except for periods
of active loading and unloading of such vehicles, and in no event shall the Tenant render
inoperable the freight elevators such that they stop for any extended period of time on any floor
of the Building, except for periods of active loading and unloading of such elevators.
Section 15.10 — Roof Use Rights
(a) During the Initial Term of this Lease, the Tenant at its sole cost and expense, subject to
the terms and conditions hereof, shall have the right to install on the existing penthouse antennae
grid, located on the roof of the Building, a small satellite dish or antennae (the “Com Gear”)
without any additional cost or charge to the Tenant; provided, however, the location of the Com
Gear shall be coordinated with the Landlord. The Landlord shall have the sole right in its
discretion to select the location on the roof of the Building where any such of the Com Gear shall
be located, the Tenant recognizing, that there already presently exists on the Building satellite
dishes, antenna and other emergency response communication devices utilized by other tenants within
the Building, and state and Federal authorities charged with emergency preparedness and other
similar obligations.
(b) In no event shall any satellite dish be any larger than thirty-six inches (36”) in
diameter and in no event shall any antennae be taller than five feet (5’), as measured from the
exterior surface of the aforesaid penthouse antennae grid structure of the Building.
(c) The Tenant shall be solely responsible for all costs associated with the acquisition,
installation and maintenance of any of such of the Com Gear and installation of same shall be
coordinated with the Landlord. Prior to any installation of the Com Gear, the Tenant shall provide
to the Landlord for its approval detailed drawings showing how any of the Com Gear shall be located
on the roof of the Building, the weight thereof, the roof penetrations needed, if any, into the
roof of the Building and that appropriate measures will have been taken to maintain the Com Gear
and to prevent it from blowing from the roof of the Building in the event of a hurricane, tornado
or other such storm event (the “Com Gear Plans”). The Landlord shall access such information and
may require changes or adjustments to the Tenant’s Com Gear Plans as the Landlord shall determine
in its commercially reasonable discretion. The Tenant
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shall indemnify the Landlord and its
managers, officers, directors, shareholders, affiliates (and all officers, directors, shareholders
or members of such affiliate) members, employees and agents from and against any claim, loss,
liability or damage arising out of or related to the installation, use and/or operation of the Com
Gear located on the roof of the Building, except for the gross negligence or willful misconduct of
the Landlord. Further, the Tenant shall immediately, upon written request of the Landlord, cause
to be repaired any circumstances arising with any of the Com Gear that creates a danger to the
public or is the source of any water intrusion into the Building.
Section 15.11 — Disaster Recovery Plan/Back-Up Power
During the Term of this Lease, the Landlord shall maintain, share and coordinate with the
Tenant, a disaster recover and emergency management plan for the Building. The Tenant shall have
the non-exclusive use of the Building’s generators which shall provide, subject to the terms below,
to the Premises sufficient capacity to power the Tenant’s data closets and at least two hundred
(200) workstations; limited, however, to electrical power in the amount of two hundred (200) KW.
Upon written request, the Landlord shall provide the Tenant with copies of the results of the
Landlord’s regularly scheduled maintenance tests of such generators which shall be performed by
Landlord at least once every three (3) months. The Tenant may add, at its sole cost and expense,
an additional generator to the Building to assist with non-exclusive back-up power to the Building
(the “Tenant Generator”). The Landlord and the Tenant acknowledge that the Landlord has limited
physical space within which to install an additional emergency power generator. Accordingly, prior
to permitting another tenant to install an additional emergency power generator in the Building,
the Landlord shall promptly provide the Tenant with written notice of the request of another tenant
to install such emergency power generator and the Tenant may request that the Landlord install a
Tenant Generator in priority to such other requesting tenant, provided that the Tenant provides a
written notice to the Landlord within fifteen (15) days of receiving the Landlord’s notice. Any
emergency power generator installed by the Landlord on behalf of the Tenant shall comply with the
provisions set forth herein. The Tenant shall have the right to use up to seventy percent (70%) of
the additional capacity generated by the Tenant Generator; provided that there are at least four
(4) generators at the Building and all of such generators are operational. The Tenant Generator
shall be installed by the Landlord, at the sole cost and expense of the Tenant, including, without
limitation, any hoisting charges; provided, however, that Tenant shall have the right to
participate in any negotiations relating to the procurement and installation of the Tenant
Generator and shall have the right to approve any associated contracts, which approval will not be
unreasonably withheld, delayed or conditioned. In no event shall the Landlord have any
responsibility for any costs associated with the procurement or installation of the Tenant
Generator. Any such Tenant Generator may be installed on the roof of the loading dock of the
Building in accordance with existing Building systems and the Landlord shall have exclusive control
over the installation of any such Tenant Generator. In any event, all emergency generators shall
share fuel tanks in common with all other such emergency generators and all costs and expenses to
operate, fuel and maintain such generators, including the Tenants Generator, shall be an Operating
Expense; provided, however, any such emergency generator installed or requested by the Tenant to be
installed, shall be purchased by the Landlord with funds provided by the Tenant subject to the
-81-
cap as set forth herein, shall be compatible with the existing disaster recovery and emergency systems
utilized in the Building from time to time, but shall be, nevertheless, owned by the Tenant. The
Tenant shall have all risk of loss related to such Tenant Generator. In that regard, the Tenant
shall be responsible for procuring any insurance it desires in its sole discretion to obtain with
respect to such Tenant Generator. Notwithstanding anything herein to the contrary, the Tenant
acknowledges and agrees that all arrangements and efforts set forth herein to ensure power to the
Tenant, the Tenant’s closets and Tenant’s workstations, are, however, and in all circumstances
subject to and subordinate to the electrical power needs of the fire prevention, security and life
saving systems designed to protect the Building and the tenants of the Building and that any such
systems shall have priority with respect to available electrical resources in the event that any disaster recovery or emergency management
plan for the Building is in force and effect. No later than thirty (30) days after the termination
of this Lease, whether by passage of time, default or upon the Tenant’s election, the Tenant, at
its sole cost and expense, shall remove the Tenant’s generator and all risk of loss associated
therewith shall be borne by the Tenant; further, the Tenant shall coordinate with the Landlord, in
advance, the methodology and timing of such removal to insure that such removal has no adverse
impact on the existing emergency back up generator system or its continuous availability and
function. The Landlord agrees in the event that more emergency power becomes available due to the
addition of a generator provided by the Landlord for the Building or due to the release of the
Landlord’s obligations following the termination of leases in effect as of the Effective Date that
the Landlord will not agree to provide any current (excluding any rights existing as of the
Effective Date) or future tenant with emergency power, without reserving and providing the Tenant’s
Share of such excess emergency power to the Tenant up to an additional two hundred (200) KW in the
aggregate.
Section 15.12 — Sustainability Mission Statement
The Landlord is committed to creating a better environment through sustainable practices
compatible with LEED principals. The Landlord’s goal is to lessen the impact on our planet and
provide the best possible working environment for its tenants through conservation efforts that use
less, waste less and leave less. The Landlord strives to improve performance of the Building
systems to reduce energy consumption, expand recycle programs to reduce waste and to develop
responsible operating practices to ensure a healthy indoor air quality. The Landlord is committed
with its tenants through those practices to advance the Building to an environmentally responsible,
profitable and a healthy place to work.
Section 15.13 — Surrender of Rights/Diminishment of Obligations
In the event that the Tenant vacates more than seventy percent (70%) of the Premises as a
result of an agreement from a third party to assume, take over, or reimburse the Tenant for any of
the Tenant’s obligations under this Lease in order to induce the Tenant to lease space from the
third party, then the obligations of the Landlord under Section 15.01, 15.02, 15.04 and 15.05,
shall terminate as of the date such percentage of vacation is achieved.
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Section 15.14 — Merger of Communications
This Lease (together with all Exhibits and Addenda referred to herein or attached hereto)
supersede any and all prior oral and written communications, emails, letters of intent,
understandings and prior drafts and communications between the Tenant and Landlord (the
“Communications”) with respect to the matters described herein and related hereto, and each of the
parties hereto acknowledge and agree that this Lease embodies all such Communications. A separate
letter understanding of even date between Tenant and Landlord relates to Landlord’s plans to seek
to build another parking garage to support the Building, which subject matter and agreement have no
effect on this Lease in any way.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the Execution Date.
| Signed, sealed and delivered in the presence of: | LANDLORD: | |||||||||
| EL-AD FLORIDA LLC, a Florida limited liability company |
||||||||||
| By: | EL-AD GROUP FLORIDA CORP., | |||||||||
| a Florida corporation, | ||||||||||
| Its Managing Member | ||||||||||
| /s/ Xxxxxx Xxxxxx | By: | /s/ Xxxxxx Xxxxx | ||||||||
Print name:
|
Xxxxxx Xxxxxx | Xxxxxx Xxxxx, President | ||||||||
| Date: December 15, 2011 | ||||||||||
| /s/ Xxxx Xxxxxxxx | ||||||||||
Print name:
|
Xxxx Xxxxxxxx | |||||||||
| /s/ Xxxxxxxx Xxxxx | By: | /s/ Xxxx Xxxxxxx | ||||||||
Print name:
|
Xxxxxxxx Xxxxx | Xxxx Xxxxxxx, Director | ||||||||
| Date: December 15, 2011 | ||||||||||
| /s/ Xxx Xxxx | ||||||||||
Print name:
|
Xxx Xxxx | |||||||||
[SIGNATURE PAGE TO LEASE]
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the Execution Date.
| Signed, sealed and delivered in the presence of: | TENANT: | |||||||||
| EVERBANK, a Federal savings bank | ||||||||||
| /s/ Xxxx-Xxxx Xxxxxxxx | By | /s/ Xxxxxx X. Xxxxxxxx | ||||||||
Print name:
|
Xxxx-Xxxx Xxxxxxxx | Xxxxxx X. Xxxxxxxx | ||||||||
| Its: Chief Executive Officer | ||||||||||
| /s/ Xxxxxx X. Xxxxx | Date: December 15, 2011 | |||||||||
Print name:
|
Xxxxxx X. Xxxxx | |||||||||
[SIGNATURE PAGE TO LEASE]
EXHIBIT “A”
PREMISES
That portion of the Building consisting of full floors 7th, 8th,
9th, 00xx, 00xx, 00xx, 00xx, 00xx
and 25th in the Office Section.
EXHIBIT A
EXHIBIT “A-1”
FIRST FLOOR SPACE
EXHIBIT A-1
EXHIBIT “B”
LEGAL DESCRIPTION OF DEVELOPMENT
Parcel 1 (Building)
All of Block 46, Xxxx’x Map of Jacksonville, Xxxxx County, Florida, bounded on the North by Forsyth
Street, on the West by Pearl Street, on the South by Bay Street and on the East by Xxxxx Street.
Also described as:
Block 46, Xxxx’x Map of Jacksonville, according to the former Public Records of Jacksonville, Xxxxx
County, Florida, being more particularly described as follows:
For Point of Beginning, commence at the Southwest corner of said Block 46, Harts Map of
Jacksonville, said point being the Point of Intersection of the Northerly right-of-way line of Bay
Street with the Easterly right-of-way line of Pearl Street as said right-of-ways are established
and accepted by the City of Jacksonville, and run North 14°52’24” East along said Easterly
right-of-way line of Pearl Street, a distance of 209.69 feet to its Point of Intersection with the
Southerly right-of-way line of Forsyth Street; run thence South 75°26’06” East along last said
right-of-way line, a distance of 317.28 feet to its Point of Intersection with the Westerly
right-of-way line of Xxxxx Street; run thence South 14°48’09” West along last said right-of-way
line, a distance of 210.62 feet to its Point of Intersection with aforesaid Northerly right-of-way
line of Bay Street; run thence North 75°16’21” West along said right-of-way line, a distance of
317.52 feet to the Point of Beginning.
Parcel 2 (Building Parking Garage)
All of Xxxx 0, 0, xxx 0, Xxxxx 00, Xxxx’s Map of LaVilla, Jacksonville, Xxxxx County, Florida,
bounded on the East by Clay Street, on the North by Forsyth Street, on the West by Broad Street,
and on the South by Xxxx 0, 0 xxx 0 xx xxxx Xxxxx 97.
Also described as:
Xxxx 0, 0 xxx 0, Xxxxx 00, Xxxx’s Map of LaVilla, according to the former public Records of
Jacksonville, Xxxxx County, Florida, being more particularly described as follows:
For Point of Beginning, commence at the Northwest corner of Xxx 0, Xxxxx 00, Xxxx’x Xxx xx XxXxxxx,
said point being the Point of Intersection of the Easterly right-of-way line of Broad Street with
the Southerly right-of-way line of Forsyth Street as said right-of-ways are established and
accepted by the City of Jacksonville, and run Easterly along said Southerly right-of-way line a
distance of 327.15 feet to its Point of Intersection with the Westerly right-of-way line of Clay
Street; run thence Southerly, along said right-of-way line of Clay Street, making an interior angle
of 76°18’30” to the left from said right-of-way line of Forsyth Street, a distance of 106.10 feet
to
EXHIBIT B
the Southeasterly corner of Xxx 0, Xxxxx 00, Xxxxx Xxx xx XxXxxxx; run thence Westerly along the
Southerly boundary of aforementioned Lots 4, 5 and 6, making an interior angle of 103°44’57” to the
left from said right-of-way line of Clay Street, a distance of 327.08 feet to the aforesaid
Easterly right-of-way line of Broad Street; run thence Northerly along said right-of-way line
making an interior angle of 76°20’03” to the left from the Southerly boundary of said Lots 4, 5 and
6, a distance of 106.44 feet to the point of beginning.
EXHIBIT B
EXHIBIT “C”
WORK LETTER
WORK LETTER
(Design and Construction of the Initial Premises)
1. Introduction. This Exhibit “C” (this “Work Letter”) sets forth the rights and
obligations of the Landlord and the Tenant with respect to planning, engineering, final
construction drawings, and the construction and installation of (i) the improvements enumerated in
Schedule “1”, attached hereto and by this reference made a part hereof, which improvements are
hereinafter referred to as the “Building Improvements” (and sometimes referred to as the “Base
Building Requirements”) and (ii) the initial improvements, not including any Building Improvements,
to be made entirely within the Initial Premises, and completed before the Term Commencement Date
(the “Tenant Improvements”). Although the Tenant Improvements will be constructed entirely within
the Initial Premises, the Landlord and the Tenant acknowledge and agree that a portion of the
Building Improvements will be constructed within the Initial Premises, while a portion of the
Building Improvements will also be constructed outside of the Initial Premises. The portion of the
Building Improvements to be constructed outside of the Initial Premises are hereinafter referred to
as the “Mezzanine Improvements”. The portion of the Building Improvements to be constructed within
the Initial Premises shall hereinafter be referred to as the “Initial Premises Building
Improvements.” The Initial Premises Building Improvements together with the Tenant Improvements
shall collectively hereinafter be referred to as the “Initial Premises Work.” The Building
Improvements and the Tenant Improvements taken together constitute the “Total Work.” When
completed, the Total Work (excluding any of the Tenant’s voice/data cabling and conduit, which
shall be and remain the Tenant’s Property during the Term) shall become a part of the Building and
owned by the Landlord. The Building Improvements will be provided and installed by the Landlord as
set forth herein, at the Landlord’s sole cost and expense, in accordance with the Landlord’s choice
of materials (which materials shall not be of a lesser quantity or quality than Building Standard
unless allowed by the terms of this Work Letter) and the cost and expense thereof shall not be
charged against any portion of the Tenant Improvement Allowance, or otherwise be required to be
paid for by the Tenant. The Tenant Improvements contemplated by this Work Letter, unless otherwise
set forth herein will be provided at the Tenant’s sole cost and expense, subject to the Landlord’s
contribution of the Tenant Improvement Allowance. The Landlord and the Tenant agree that the
Landlord shall, in accordance with the terms of this Work Letter, engage one (1) general contractor
to perform the Initial Premises Work but such general contractor shall prepare and submit a
separate bid and contract for each of the Tenant Improvements and the Initial Premises Building
Improvements in accordance with Section 5 of this Work Letter. Such Initial Premises Building
Improvements and the Mezzanine Improvements (as the case may be) shall be substantiated by the
Landlord to the Tenant to have been accomplished, or to be in compliance with the standards
enumerated in Schedule “1” on or before the applicable time periods identified below.
2. Architect. The construction of the Tenant Improvements, as set forth herein,
contemplates and requires that the Tenant’s Plans and Specifications, described below, shall be
prepared by Xxxxxxx, XxxXxxxx & Xxxxxxx, Jacksonville, Florida, hereinafter referred to as the
“Tenant Architect.” The construction of the Building Improvements, as set forth herein,
EXHIBIT C — WORK LETTER
Page 1
Page 1
contemplates and requires that the Landlord’s Plans and Specifications for the Initial
Premises Building Improvements, described below, and the Landlord’s plans for the Mezzanine
Improvements shall be prepared by the Landlord Architect. The cost and expense of the Tenant
Architect for the work performed on the Tenant’s Plans and Specifications for the Tenant
Improvements, but not for the Building Improvements (the “Reimbursable Tenant TI Architect Costs”)
shall be paid for by the Landlord from the Tenant Improvement Allowance. The Reimbursable Tenant TI
Architect Costs shall be paid to the Tenant Architect by the Escrow Agent in accordance with the
procedure and the time periods set forth in the TI Escrow Agreement (as defined hereinafter) for TI
Draw Requests, with the Tenant Architect (instead of the General Contractor) submitting the payment
request in accordance with the provisions of Section 14 of this Work Letter and Tenant (instead of
Tenant Architect) being the approving party, and if the Tenant has paid the Tenant Architect
directly for any of the Reimbursable Tenant TI Architect Costs, then the payment for any such
Reimbursable Tenant TI Architect Cost shall be paid by Escrow Agent to Tenant instead of to Tenant
Architect (so long as the provisions of Section 14 of this Work Letter have been met with regard to
any such request). The cost and expense of the Landlord Architect for the work performed on (i) the
Landlord’s Plans and Specifications for the Initial Premises Building Improvements (but not the
Tenant Improvements) and (ii) the Landlord’s plans for the Mezzanine Improvements shall be paid for
by the Landlord at its sole cost and expense and shall not be included in any Reimbursable Tenant
TI Architect Costs. Any request for payment of a Reimbursable Tenant TI Architect Cost shall be
considered and treated as a TI Draw Request for purposes of this Agreement, including the notices
and time periods to apply thereto.
3. Plans and Specifications.
(a) Tenant’s Plans and Specifications.
(i) The Tenant furnished to the Landlord on October 24, 2011, construction drawings,
complete
at the ninety percent (90%) level, for work desired by the Tenant in the Initial Premises,
excluding the Building Improvements (the “Tenant’s 90% Plans and Specifications”), and including
the general layout of all the spaces and where applicable:
(1) The location and extent of floor loading in excess of eighty
(80) pounds per square
footage (live load) (the parties agree that this specification shall apply only to one hundred
percent (100%) complete permit ready construction drawings and not to the Tenant’s 90% Plans and
Specifications);
(2) Special air conditioning requirements, other than normal
office use, by location and
general description of need;
(3) Location and description of any plumbing requirements;
(4) Estimated total electrical load, including lighting, for
entire space, and indicated by
type and kind of fixtures, receptacles, etc.;
(5) Description and location of any special architectural
EXHIBIT C — WORK LETTER
Page 2
Page 2
features which may require structural changes;
(6) Description and/or detailed specification for any items which
require long lead time for
delivery;
(7) Partition locations and type;
(8) Door locations, size and type, including latch or lockset
requirements. This information
should be listed in a door and hardware schedule;
(9) Reflected ceiling plans, including location of lights, light
switches, HVAC diffusers and
sprinkler heads;
(10) The location of electrical outlets and telephone outlets;
(11) Any cabinet work, ornamental metal work, special
architectural installations and details;
(12) Schedule of all equipment and its electrical, mechanical and
operating character;
(13) Air conditioning loads, and diffusers for all areas
including those for special needs
outlined in Section 3(a)(i)(2) above and any special exhaust requirements;
(14) Ceiling heights other than 8’10” or any ceiling
other than Building Standard; and
(15) Finishing schedules, including all paint colors, wall
coverings, floor covering, special
window treatments, if any.
(ii) The Landlord has reviewed the Tenant’s 90% Plans and Specifications and there is no
Tenant Delay in connection therewith. The Tenant timely delivered and the Landlord approved the
Tenant’s one hundred percent (100%) complete permit ready construction drawings prior to the
Effective Date (the “Tenant’s Plans and Specifications”), and there is no Tenant Delay in
connection therewith. The Tenant’s Plans and Specifications shall be revised to incorporate any
changes or work required by any local governmental inspecting authority.
(iii) The Tenant’s Plans and Specifications shall comply with the City of
Jacksonville’s
Building Code and with insurance regulations for a fire resistive Class A Building. All of the
Tenant’s Plans and Specifications shall be in a form satisfactory for filing with appropriate
governmental authorities for permits and licenses required for construction and shall also be
subject to approval of such governmental authorities.
(v) The Tenant’s Plans and Specifications shall not include the
EXHIBIT C — WORK LETTER
Page 3
Page 3
Building Improvements.
(vi) At the completion of construction, the General Contractor (as hereinafter defined) shall
furnish as-built drawings and specifications to the Landlord, Tenant, and Tenant Architect. The
as-built documents shall show all of the Tenant’s base Building utilities and services, inclusive
of those concealed by the Tenant Improvements.
(b) Landlord’s Plans and Specifications.
(i) The Landlord furnished to the Tenant on October 26, 2011, ninety percent (90%)
complete
construction drawings, for the Initial Premises Building Improvements (the “Landlord’s 90% Plans
and Specifications”), and including the general layout of all the spaces and where applicable:
Finishing schedules, including without limitation, all paint colors, wall coverings,
floor covering, special window treatments, if any.
(ii) The Tenant reviewed and commented upon the Landlord’s 90% Plans and Specifications,
and
there is no Tenant Delay in connection therewith. The Landlord timely delivered and the Tenant
approved, prior to the Effective Date, the Landlord’s one hundred percent (100%) complete permit
ready construction drawings for the Initial Premises Building Improvements (the “Landlord’s Plans
and Specifications”) and there is no Tenant Delay in connection therewith. The Landlord’s Plans
and Specifications shall be revised to incorporate any changes or work required by any local
governmental inspecting authority.
(iii) The Landlord’s Plans and Specifications shall comply with the City of
Jacksonville’s
Building Code and with insurance regulations for a fire resistive Class A Building. All of the
Landlord’s Plans and Specifications shall be in a form satisfactory for filing with appropriate
governmental authorities for permits and licenses required for construction and shall also be
subject to approval of such governmental authorities.
(iv) The Landlord’s Plans and Specifications shall not include the Tenant Improvements or
the
Mezzanine Improvements.
4. Bid Process; General Contractor Selection. When completed, as contemplated in
Section 3 above, the Tenant’s Plans and Specifications and the Landlord’s Plans and Specifications
will be submitted for a competitive bid by the Landlord to at least three (3) general contractors
selected by the Landlord and reasonably approved by the Tenant which approval shall not be
unreasonably withheld, conditioned, or delayed. For purposes hereof, both Auld & White and
Xxxxxxxxx & Xxxxxx are deemed by the parties hereto to be approved contractors, together with any
other contractor mutually agreed upon by the Landlord and the Tenant. The Landlord shall cause the
Landlord Architect and the Tenant Architect to provide to the Tenant a draft of the proposed bid
submittal package for review and approval by the Tenant prior to submitting such proposal for bid,
whereupon the Tenant shall provide to the Landlord in writing the Tenant’s comments, if any, to
such bid proposal within three (3) Business Days of receipt of such bid proposal. The Landlord,
along with the Tenant, after receipt and review of
EXHIBIT C — WORK LETTER
Page 4
Page 4
the bids from the contractors, shall mutually
determine which of the contractors to select as the general contractor
(the “General Contractor”) to accomplish the Initial Premises Work, contemplated by the
Tenant’s Plans and Specifications and the Landlord’s Plans and Specifications; provided, however,
in the event that the Tenant and the Landlord cannot agree on the contractor to select, the Tenant
shall have the right to eliminate one (1) contractor and the Landlord shall select the contractor
from the remaining options to accomplish the Initial Premises Work. If the bid from the selected
contractor (excluding the cost of the Tenant’s voice/data cabling) with respect to the Tenant
Improvements is greater than one hundred fifteen percent (115%) of the Tenant Improvement
Allowance, then the Tenant may require that the Landlord rebid the job with additional contractors
mutually agreed upon by the parties and any delay caused by such rebidding process related to the
Tenant Improvements shall be deemed a Tenant Delay provided that the Landlord promptly and
diligently pursues the rebid process. The Tenant and the Landlord each agree that the General
Contractor chosen for each of the Tenant Improvements and the Initial Premises Building
Improvements shall be the same general contractor and the bids for each of the Tenant Improvements
and the Initial Premises Building Improvements shall be approved at the same time. After selection
of the General Contractor, as provided for herein, the Landlord shall submit the total cost of the
Tenant Improvements to the Tenant for its approval. The Tenant shall notify the Landlord in
writing of the Tenant’s approval of the cost of the Tenant Improvements within three (3) Business
Days after receipt of the Landlord’s cost submission. In the event the selected bid (excluding the
cost of the Tenant’s voice/data cabling) is greater than one hundred forty percent (140%) of the
Tenant Improvement Allowance, then the Tenant may terminate the Lease by giving notice in writing
to the Landlord no later than ten (10) days from the receipt of the initial bid or any rebid,
whichever last occurs. If the Tenant shall fail to respond in writing to the Landlord’s submission
of the bid in issue within fourteen (14) days thereafter, such failure shall be deemed as the
Tenant’s approval thereof. Further, should the General Contractor refuse or fail to agree in the
TI Construction Contract (as hereinafter defined in Section 5(a) of this Work Letter) to be
responsible for Per Diem Costs (as hereinafter defined in Section 5(h) of this Work Letter) for
failure to timely complete the Initial Premises Work (inclusive of both the Tenant Improvements and
the Initial Premises Building Improvements), as a result of the delay or failure of such General
Contractor, then either the Landlord or the Tenant may terminate the Lease upon written notice to
the other party given within ten (10) days of notice that the General Contractor shall refuse to
include such Per Diem Costs. All costs and expenses associated with the Tenant Improvements shall
be paid for from the Tenant Improvement Allowance provided by the Landlord and from the Tenant’s
own funds pursuant to the payment methodology set forth in this Work Letter; provided, however, no
dumpster fees, utility fees or hoisting fees incurred in connection with the Tenant Improvements
shall be charged against the Tenant Improvement Allowance or otherwise be paid by the Tenant,
except for hoisting fees associated with the Tenant’s generator under Section 15.11 of the Lease
and hoisting fees associated with any structural steel included in the Tenant Improvements that
cannot be hoisted using the existing freight elevator. If the selected bid for the Initial
Premises Building Improvements should exceed [**REDACTED**], then the Landlord may rebid the job and, if the resulting selected bid for
the Initial Premises Building Improvements exceeds [**REDACTED**], then the Landlord may terminate the Lease by giving written notice
to the Tenant within ten (10) days after receipt of the initial bid or rebid, as applicable,
provided, however, the Tenant, may elect, by written notice to the
EXHIBIT C — WORK LETTER
Page 5
Page 5
Landlord within three (3)
Business Days after receipt of such written notice of termination from the Landlord, to
pay the portion of the bid amount in excess of the [**REDACTED**] limit (the “IPBI Overage Amount”) and shall deposit the IPBI Overage
Amount with Escrow Agent within five (5) Business Days after receipt of Landlord’s written notice
of termination; upon the Tenant’s deposit of the IPBI Overage Amount with the Escrow Agent and the
Escrow Agent’s delivery to Landlord and Mortgagee of written notice of receipt of the IPBI Overage
Amount, the Landlord’s termination shall be deemed rescinded and the Lease shall then continue in
full force and effect in accordance with its terms. Such rebid process by the Landlord cannot
exceed ten (10) Business Days, or Tenant shall have the right to terminate the Lease.
5. Contract Requirements; Per Diem Costs; Holdover Costs.
(a) Notwithstanding anything in this Work Letter to the contrary, the Landlord reserves the
absolute right to engage a separate contractor to perform the Mezzanine Improvements at such time
and under such procurement method as the Landlord deems advisable, however the Landlord shall
complete the Mezzanine Improvements by a date certain as provided in Section 6(b) below. The
Tenant shall have no obligation for the cost of the Mezzanine Improvements. The Landlord shall
enter into separate construction contracts for each of the Tenant Improvements, the Initial
Premises Building Improvements, and the Mezzanine Improvements. The construction contract for the
Tenant Improvements shall hereinafter be referred to as the “TI Construction Contract”. The
construction contract for the Initial Premises Building Improvements shall hereinafter be referred
to as the “IPBI Construction Contract”.
(b) The TI Construction Contract shall require, within its terms and conditions, that:
(i) the General Contractor shall give the Tenant and Mortgagee written notice in
the event that any TI Draw Request (as hereinafter defined) made pursuant to the TI
Construction Contract is not paid, for any reason, within thirty (30) days after the
date that such TI Draw Request was submitted to the Escrow Agent for payment along
with all such documentation required by the TI Escrow Agreement. Tenant shall have
the right, but not the obligation, to make payment directly to the General
Contractor within ten (10) days after the Tenant’s receipt of such written notice
for such unpaid TI Draw Request;
(ii) the Mortgagee shall be an intended third-party beneficiary of the TI
Construction Contract and shall be notified by the General Contractor of any failure
of any TI Draw Request to be timely paid. If Tenant shall not cure any such failure
within its ten (10) day cure period set forth in (i) above, then in such event
Mortgagee shall be entitled to cure such failure, without prejudice to any other
remedies available to Mortgagee, within the ten (10) days after Mortgagee’s receipt
of notice from the General Contractor that none of the Tenant, the Landlord or the
Escrow Agent has made such payment after expiration of any applicable notice and
cure period (including, Tenant’s cure period in (i) above). The General Contractor
shall refrain from exercising any remedy in connection with any such delinquent TI
Draw Request until each of Tenant’s and
EXHIBIT C — WORK LETTER
Page 6
Page 6
Mortgagee’s cure periods has expired; the
intent being for each of Tenant and
Mortgagee to have a reasonable opportunity to pay such TI Draw Request in the
absence of a timely payment by any other entity; and
(iii) the sum of all Per Diem Costs, if any, shall be deducted from the total
contract price due to the General Contractor from the Landlord for the TI
Construction Contract should the General Contractor fail to Sufficiently Complete
(as defined on Schedule 3 attached hereto) and/or Substantially Complete (as defined
on Schedule 3 attached hereto) on a phase-by-phase basis those portions of the
Initial Premises Work (inclusive of both the Tenant Improvements and the Initial
Premises Building Improvements) within the time periods required by Section 6 of
this Work Letter.
(c) The IPBI Construction Contract shall require, within its terms and conditions, that:
(i) the General Contractor shall give the Tenant and Mortgagee written notice in
the event that the portion of any BI Draw Request (as hereinafter defined) approved
in accordance with the same procedure set forth in Section 14(b) for TI Draw
Requests (an “Approved BI Draw Request”) is not paid, for any reason, within thirty
(30) days after the date that such Approved BI Draw Request was submitted to the
Mortgagee for payment along with all such documentation required by the IPBI
Construction Contract. Tenant shall have the right, but not the obligation, to make
payment directly to the General Contractor within ten (10) days after the Tenant’s
receipt of such written notice for such unpaid Approved BI Draw Request; and
(ii) the Mortgagee shall be an intended third-party beneficiary of the IPBI
Construction Contract and shall be notified by the General Contractor of any failure
of any Approved BI Draw Request to be timely paid. If Tenant shall not cure any such
failure within its ten (10) day cure period set forth in (i) above, then in such
event Mortgagee shall be entitled to cure such failure, without prejudice to any
other remedies available to Mortgagee, within the ten (10) days after Mortgagee’s
receipt of notice from the General Contractor that none of the Tenant, the Landlord
or the Mortgagee has made such payment after expiration of any applicable notice and
cure period (including, Tenant’s cure period in (i) above). The General Contractor
shall refrain from exercising any remedy in connection with any such delinquent
Approved BI Draw Request until each of Tenant’s and Mortgagee’s cure periods has
expired; the intent being for each of Tenant and Mortgagee to have a reasonable
opportunity to pay such Approved BI Draw Request in the absence of a timely payment
by any other entity. The sum of all Per Diem Costs incurred under the TI
Construction Contract shall be deducted from the total contract price due to the
General Contractor from the Landlord for the TI Construction Contract should the
General Contractor fail to Sufficiently Complete and/or Substantially Complete on a
phase-by-phase basis the Initial Premises Building Improvements within the time
periods required by Section 6 of this Work Letter.
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(d) In furtherance of the foregoing, the parties agree that the TI Construction Contract and
IPBI Construction Contract shall each provide for a retainage of ten percent (10%) of the amount
requested by the General Contractor pursuant to all draw requests, including, without limitation,
each Approved TI Draw Request or Approved BI Draw Request, as applicable, resulting in a total
retainage of at least ten percent (10%) of the total bid amount under each contract; provided that
that such retainage will be reduced to five percent (5%) when Phase I is Sufficiently Complete.
(e) The Tenant shall have no claim for Per Diem Costs related to any of such floors of the
Initial Premises which have been delivered to the Tenant in the required Sufficiently Complete and
Substantially Complete conditions by the applicable time periods required herein as to such
standards of completion.
(f) Promptly upon receipt or preparation of the draft of each of the TI Construction Contract
and IPBI Construction Contract, the Landlord shall provide to the Tenant such draft. The Tenant
shall have the right to review and comment upon such contracts prior to execution by the Landlord;
provided, however, that the Tenant shall provide to the Landlord in writing its comments to such
contracts, if any, within three (3) Business Days of receipt of the same. In addition, the
Landlord and the Tenant agree that the TI Construction Contract and IPBI Construction Contract
shall each require, within the terms and conditions of such contracts, language expressly stating
that:
(i) each of the Tenant and the Mortgagee is an intended third party beneficiary of
such contract;
(ii) all duties and responsibilities undertaken pursuant to such contract will be
for the mutual benefit of the Landlord, the Tenant and the Mortgagee, but prior to
an assignment to Tenant, Tenant shall have no obligations thereunder, and prior to
an assignment to Mortgagee, Mortgagee shall have no obligation thereunder;
(iii) upon the written election of the Tenant or the Mortgagee (there being no
obligation on the part of either Tenant or Mortgagee to make such election) and
delivery by the Tenant of an Assumption Agreement (as defined hereinafter), after
expiration of any applicable notice period provided in this Work Letter or the
Lease, the Landlord’s interest in such contract(s) shall be assigned to the Tenant
or the Mortgagee, as applicable, in the event that (A) the Landlord (or Mortgagee if
it has taken an assignment of the contract) materially fails to perform its
obligations under the TI Construction Contract and/or the IPBI Construction
Contract, (B) the due and payable portion of the Stipulated Sum (as defined
hereinafter) under the TI Construction Contract, and/or any amount due and payable
under the IPBI Construction Contract shall not be timely paid to the General
Contractor as required under the TI Construction Contract and/or IPBI Construction
Contract, respectively, subject to the notice and cure periods provided in Section
7(b) of this Work Letter, (C) the Landlord files any petition or action for relief
under any creditor’s law (including bankruptcy, reorganization, or similar action),
either in state or federal court, or has such a petition or action filed against it
which is not stayed or vacated within thirty (30) days after filing,
EXHIBIT C — WORK LETTER
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(D) any Mortgagee successfully forecloses on any applicable mortgage, (E) any other
exercise by the aforementioned mortgagee of rights and remedies (whether under any
mortgage or under applicable law, including bankruptcy law) as holder of the
aforementioned loan and/or the aforementioned mortgage, results in a successor
landlord becoming owner or operator of the Building and/or Development, (F) delivery
by the Landlord to the Mortgagee (or its designee or nominee) of a deed or other
conveyance of the Landlord’s interest in the Building and/or Development in lieu of
any of the foregoing, or (G) Landlord elects to terminate the TI Construction
Contract and/or the IPBI Construction Contract in accordance with the provisions of
such contract (“Termination Election”). As between Landlord and Tenant solely, the
parties agree that any Termination Election made without cause may only be made by
Landlord acting commercially reasonably and as a similarly situated Landlord would
act (there shall be no third party beneficiary of this good faith provision).
Landlord shall deliver notice of its Termination Election simultaneously to General
Contractor, Tenant and Mortgagee and Tenant shall make any assignment election under
this (G) within five (5) Business Days after delivery of the Termination Election
notice. Upon electing an assignment under this Subsection 5(f)(iii), Tenant shall
execute and deliver an assumption agreement assuming the obligations of, and
indemnifying Landlord (its successors and assigns) for, the obligations of the
“Owner” under the assigned contract from and after the assignment date and Landlord
shall indemnify Tenant for all liability of the “Owner” under the assigned contract
prior to the assignment date (an “Assumption Agreement”);
(iv) in all events where a dispute arises amongst any of the General Contractor, the
Landlord and/or the Tenant as to whether the Initial Premises Work has adequately
progressed with respect to any floor in the Initial Premises and whether Sufficient
Completion has been achieved (as determined by any of such parties), and such
dispute has not been mutually resolved by the parties, such dispute shall be finally
decided, within five (5) Business Days of its receipt of notice of any such dispute,
by Dasher Xxxxx Architects, P.A. (the “Neutral”) who shall also serve as the Initial
Decision Maker (as that term is defined in A101 of each of the TI Construction
Contract and the IPBI Construction Contract) for making any such determination under
the TI Construction Contract and the IPBI Construction Contract;
(v) in all events the Mortgagee shall have its own notice and cure period for
defaults under any such contract which shall not be concurrent with any other
party’s notice and cure period, shall run after any other party’s notice and cure
periods have expired, and shall be, in each instance, for a period of thirty (30)
days for non-monetary defaults and ten (10) days for monetary defaults (this
provision shall not be deemed to give Mortgagee more than a single notice and cure
period for any one default); and
(vi) that all labor and materials shall be warranted to the Landlord (and its
successors and assigns) and the Tenant, as their interests may appear, for a period
of at least one (1) year following the Substantial Completion of the applicable
portion of the Initial Premises Work.
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(g) In the event that the Tenant elects to have the Landlord’s interest in either the TI
Construction Contract or the IPBI Construction Contract assigned to the Tenant as provided for
above, then the Tenant shall also elect to have the Landlord’s interest in the other such Contract
assigned to the Tenant to maintain continuity in the construction process notwithstanding the
absence of the satisfaction of any of the criteria set forth in items (A) through (F) in Section
5(f) above with respect to such other contract. For purposes of clarity, it is intended that the
Tenant shall have priority over any Mortgagee with respect to (I) taking over the management of the
construction process for the Initial Premises Work, and (II) having the Landlord’s interest in
either the TI Construction Contract and/or the IPBI Construction Contract assigned to the Tenant in
the event of the occurrence of any event giving rise to such a right of Mortgagee, provided,
however, the Tenant, within five (5) Business Days after receipt of written notice from Mortgagee
that it intends to exercise any such right, will notify Mortgagee as to whether or not the Tenant
desires to exercise its priority rights. Tenant may not exercise rights under (I) of this
Subsection (g) without also assuming Landlord’s interest as provided in (II) of this Subsection (g)
and delivering an Assumption Agreement.
(h) If a Tenant Delay occurs with respect to more than one (1) floor contained within a
particular phase the number of days of Tenant Delay with respect to such phase shall be deemed to
be equal to the largest number of days of Tenant Delay on a floor-by-floor basis for such phase;
provided, however, for purposes of determining Sufficient Completion Per Diem Costs (as such term
is hereinafter defined below), the number of days of Tenant Delay shall be limited to the number of
days of Tenant Delay that occurred on or before the earlier of (i) the applicable Substantial
Completion Date for such phase, or (ii) the actual date of Sufficient Completion for such phase.
For purposes hereof, the term “non-Tenant Delay” shall mean any delay, other than a Tenant Delay in
achieving either Sufficient Completion or Substantial Completion with respect to any phase. For
purposes hereof the term “Sufficient Completion Per Diem Costs” shall mean a fee of One Thousand
and No/100 Dollars ($1,000.00) for each day of delay (such delay being reduced on a day-for-day
basis for each day of Tenant Delay and each day of delay arising from a Force Majeure Event), after
the applicable Sufficient Completion Date for such phase, that the Phase I Floors, Phase II Floors,
or Phase III Floors, as applicable, are late in being delivered in a Sufficiently Complete
condition, up until the applicable Substantial Completion Date for such phase [a maximum of
sixty-one (61) days]. For purposes hereof the term “Unadjusted Substantial Completion Per Diem
Costs” shall mean a fee of One Thousand and No/100 Dollars ($1,000.00) for each day of delay, after
the applicable Substantial Completion Date for such phase, that the Phase I Floors, Phase II
Floors, or Phase III Floors, as applicable, are late in being delivered in Substantially Complete
condition, up until August 8, 2012, at which time such fee shall increase to Three Thousand and
No/100 Dollars ($3,000.00) per day per phase for each day of delay after August 7, 2012 that such
phase is not Substantially Complete; provided, however, with respect to any particular phase, the
amount of Unadjusted Substantial Completion Per Diem Costs actually owed to the Tenant (“Adjusted
Substantial Completion Per Diem Costs”) shall be calculated by multiplying the total amount of
Unadjusted Substantial Completion Per Diem Costs by a fraction, the numerator of which is equal to
the number of days of non-Tenant Delay in Substantial Completion for such phase and the denominator
of which is equal to the sum of the total number of days of Tenant Delay and non-Tenant Delay in
Substantial Completion for such phase. For purposes hereof, “Per Diem
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Costs” shall mean, collectively, Sufficient Completion Per Diem Costs and Adjusted Substantial
Completion Per Diem Costs. Notwithstanding the foregoing, the General Contractor shall be deemed
to have completed any particular phase one day earlier on a day-by-day basis for each day of delay
arising from a Force Majeure Event affecting such phase for purposes of calculating the Adjusted
Substantial Completion Per Diem Costs applicable to such phase.
(i) For purposes hereof “Holdover Costs” shall be those rental costs including premiums above
the stated rental costs incurred by the Tenant with respect to those leasehold properties occupied
by the Tenant which are being vacated in connection with the Lease, as a direct result of the
failure of the Landlord to timely deliver the Initial Premises in a Substantially Complete
condition on a phase-by-phase basis to the Tenant on or before August 8, 2012; limited, however, to
such Holdover Costs as the Tenant actually incurs at the Tenant’s Old Space, as defined below. The
Tenant’s existing leasehold properties are located in six (6) buildings at the Cypress Point
Business Park, Jacksonville, Florida (the “Tenant’s Old Space”). For purposes of describing with
clarity the Tenant’s rental costs including premiums it may incur because of a holdover by the
Tenant at the Tenant’s Old Space, the Tenant has prepared as Schedule “2” attached hereto, a
detailed summary of such rental costs including premiums which the Tenant is contractually bound to
pay arising out of its holdover at the Tenant’s Old Space on a building-by-building basis. The
Tenant warrants and represents to the Landlord that such listing of rental costs including premiums
related to the Tenant’s Old Space, as set forth in Schedule “2” is a complete list and summary of
allowable “Holdover Costs,” to the extent applicable to any portion of the Tenant’s Old Space,
where a holdover may occur.
(j) The Landlord and the Tenant agree that the Landlord’s selection of the General Contractor
shall require, within the terms and conditions of each of the TI Construction Contract and IPBI
Construction Contract, that the General Contractor shall be obligated to deduct from the Stipulated
Sum with respect to the TI Construction Contract all Per Diem Costs due to the Tenant (calculated
in accordance with Section 5(h) above), on a day-by-day basis, relating to (i) the months of April,
May, and May, 2012, should the General Contractor fail to Sufficiently Complete the Phase I Floors,
Phase II Floors and Phase III Floors before April 18, 2012, May 2, 2012, or May 23, 2012,
respectively, and (ii) the months of June, June and July, 2012, should the General Contractor fail
to Substantially Complete the Phase I Floors, Phase II Floors and Phase III Floors before June 13,
2012, June 27, 2012, or July 18, 2012, respectively.
(k) If the Landlord shall have failed to Substantially Complete the Total Work and delivered
possession of the Initial Premises to the Tenant by December 1, 2012 (such date being extended on a
day-for-day basis for each day of Tenant Delay and for each day arising from a Force Majeure
Event), then the Tenant shall have the right to terminate the Lease at its election; provided,
however, such termination right as is contained in this paragraph shall cease and be of no further
force and effect on the earlier of (i) the Tenant’s substantial occupancy of all of the Initial
Premises or (ii) the Landlord’s Substantial Completion of the Initial Premises Work before the
Tenant shall have provided to the Landlord in writing its election to terminate pursuant to the
provisions hereof.
(l) The Tenant and the Landlord each acknowledges and agrees that the TI Construction Contract
and the IPBI Construction Contract with the General Contractor entered
EXHIBIT C — WORK LETTER
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into by the Landlord shall each include a requirement that such General Contractor provide a
payment and performance bond, the cost of which shall be subsumed within the General Contractor’s
sum for each of such contracts. Further, each of the General Contractor’s bids shall be a fixed
sum bid in contrast to a cost-plus bid. The stipulated sum price due to the General Contractor
under its final accepted bid for the Tenant Improvements under the TI Construction Contract, shall
be hereinafter referred to as the “Stipulated Sum.” Absent Tenant’s consent, which shall not be
unreasonably withheld, conditioned or delayed, the Landlord shall have no discretion to include in
the General Contractor’s bid for the TI Construction Contract and/or the IPBI Construction
Contract, the scope and extent of any delay damages in excess of the Per Diem Costs occasioned by
the General Contractor’s delay.
6. Scheduling of Work.
(a) Subject to a Tenant Delay, the Landlord shall cause the General Contractor to Sufficiently
Complete the Initial Premises Work and the Landlord shall deliver to the Tenant in Sufficiently
Complete condition: (i) three (3) floors of the Initial Premises (which are designated as the
0xx xxxxx, 0xx xxxxx and 20th floor, collectively the “Phase I
Floors”) on or before April 18, 2012 (the “Phase I Sufficient Completion Date”), and the Landlord
shall cause the General Contractor to continue construction on such floors so that such floors
shall be Substantially Complete on or before June 13, 2012 (the “Phase I Substantial Completion
Date”); (ii) three (3) floors of the Initial Premises (which are designated as the 0xx
xxxxx, 00xx xxxxx xxx 00xx xxxxx, xxxxxxxxxxxx the “Phase II Floors”) on or
before May 2, 2012 (the “Phase II Sufficient Completion Date”), so that such floors shall be
Substantially Complete on or before June 27, 2012 (the “Phase II Substantial Completion Date”); and
(iii) three (3) floors of the Initial Premises (which are designated as the 23rd floor,
24th floor and 25th floor, collectively the “Phase III Floors”) on or before
May 23, 2012 (the “Phase III Sufficient Completion Date”), so that such floors shall be
Substantially Complete on or before July 18, 2012 (the “Phase III Substantial Completion Date”).
Interim Rent with respect to each of the Phase I Floors, Phase II Floors, and Phase III Floors, on
a floor-by-floor basis, as such floors are Substantially Complete, shall commence and be due and
payable in advance on the earlier of (i) the applicable Substantial Completion date as set forth
above, or (ii) the date of the Tenant’s occupancy of such applicable floor on a floor-by-floor
basis, and shall continue to accrue and be due and payable by the Tenant to the Landlord until the
Term Commencement Date. Notwithstanding the foregoing to the contrary, (a) to the extent that the
Per Diem Costs exceed the Holdover Costs, the Tenant shall be entitled to and shall retain the
benefit of all of the Per Diem Costs, and (b) to the extent that the Holdover Costs exceed the Per
Diem Costs then the Tenant shall receive a credit against Interim Rent on a phase-by-phase basis
equal to the amount determined by subtracting the Per Diem Costs from the Holdover Costs and
multiplying such result by a fraction, the numerator of which is equal to the number resulting from
subtracting one-half of the days of delay arising from all Force Majeure Events affecting such
phase from the number of days of non-Tenant Delay in Substantial Completion for such phase; and the
denominator of which is equal to the number resulting from subtracting one-half of the days of
delay arising from all Force Majeure Events affecting such phase from the total number of days of
Tenant Delay and non-Tenant Delay in Substantial Completion for such phase; provided that in no
case shall the credit due to the Tenant under (b) above exceed the amount of Interim Rent due
Landlord under the Lease. For clarity, Landlord’s obligation with respect to Holdover Costs in all
cases is limited to, and
EXHIBIT C — WORK LETTER
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shall not exceed, the amount of Interim Rent otherwise payable to Landlord under the Lease.
No later than thirty (30) days after the Term Commencement Date, the Landlord shall notify the
Tenant with respect to those days of Tenant Delay which have been incurred, on a floor-by-floor
basis, and the Landlord shall include in such notice an assessment of the sum of Interim Rent which
would have been incurred but for the Tenant Delay (the “Tenant Delay Charge”). In addition, no
later than thirty (30) days from the receipt of the Landlord’s notice asserting the Tenant Delay
Charge, the Tenant shall reimburse the Landlord for the Tenant Delay Charge. In the event of a
dispute between the Tenant and the Landlord, with respect to any such Tenant Delay, the
determination of the Neutral shall be final. To the extent the Tenant has prepaid any Interim Rent
for the period beyond the Term Commencement Date or is due a credit against Interim Rent in
accordance with preceding paragraph, then any such prepaid Interim Rent and/or credit against
Interim Rent shall be credited against the first payment of Rent due upon the Rent Commencement
Date, and each subsequent installment thereafter, if applicable, until such prepaid Interim Rent or
credit against Interim Rent is exhausted.
(b) The Landlord shall cause the Mezzanine Improvements to be Substantially Complete, on or
before September 1, 2012 (which deadline shall be extended day-by-day for each day of delay arising
from a Force Majeure Event).
(c) For purposes hereof, Sufficiently Complete and Substantially Complete shall have the
meaning as set forth in Schedule “3” attached hereto and by this reference made a part hereof.
7. Delay.
(a) Tenant Delay. Any of the following shall be a “Tenant Delay” if Substantial
Completion is delayed in whole or in part, as a result thereof:
(i) The Tenant’s failure to furnish full and complete the Tenant’s 90% Plans and
Specifications and/or the Tenants Plans and Specifications as and when required hereby;
(ii) The Tenant’s failure to approve the cost of the Tenant Improvements or revisions thereto
within the times as set forth herein;
(iii) The Tenant’s request for materials, finishes or installations which require a long-lead
time, provided that the Landlord has furnished the Tenant, within fifteen (15) Business Days after
the Landlord’s receipt of the Tenant’s Plans and Specifications for approval, a written listing of
any proposed materials, finishes, or installations which will require said long-lead time and which
are not thereafter within five (5) Business Days promptly substituted by the Tenant for short-lead
time materials, finishes or installations [any such delay beyond such five (5) Business Days by the
Tenant in making a substitution shall be a Tenant Delay hereunder];
(iv) The Tenant’s failure to pay for any portion of the Tenant Improvements (including without
limitation, any Tenant Change Order) as and when payable by
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the Tenant hereunder; or
(v) Any Change Order Delay (as hereinafter defined) pursuant to a change order requested by
Tenant and approved in writing by the Landlord and the Tenant.
(vi) Any period of time during any rebid of the Initial Premises Work as requested by the
Tenant (not to exceed ten (10) Business Days).
(b) Remedy for Delay. Each of the time frames as set forth herein constitute good
faith estimates (as agreed upon by the Tenant and the Landlord) of the time necessary to accomplish
each of the tasks as set forth herein. Should the Tenant believe in good faith that the Landlord
is, however, not in compliance with the terms and time frames as set forth herein, the Tenant shall
provide written notice to the Landlord (with copy to Mortgagee) describing, in the Tenant’s view,
the Landlord’s failure to comply. In such circumstance, the Landlord shall have, as to any item
associated with certain specifications and described in such written notice, five (5) Business Days
after receipt of notice from the Tenant to prove that the item at issue is in compliance with the
specifications as set forth in Schedule “1” hereto, the Landlord’s Plans and Specifications, and/or
the Tenant’s Plans and Specifications, as applicable. With respect to any construction item, the
Landlord shall have ten (10) Business Days after receipt of notice from the Tenant to accomplish
the item at issue. Notwithstanding the foregoing, the failure of the Landlord, in either case, to
meet any applicable delivery date in the required condition as provided for in this Work Letter,
without regard to any notice or grace period set forth in this paragraph, shall trigger the
applicable remedy, e.g., Per Diem Costs, or Lease termination (subject to Mortgagee notice and cure
rights), but shall not be a default under the Lease. The period for the Landlord to (i) post the
Standby Letter of Credit (as hereinafter defined in Section 14(a) of this Work Letter), and/or (ii)
pay the Cash Deposit (as hereinafter defined in Section 14(a) of this Work Letter) (collectively,
(i) and (ii) the “Work Funding Obligations”) shall also not be subject to the aforesaid grace
period, and the failure to timely pay shall be a default under the Lease (subject to Mortgagee’s
notice and cure rights). If Tenant, in compliance with the terms of this Work Letter, exercises
any right to cure Landlord’s failure to timely make payment of any Approved BI Draw Request, and
Landlord shall fail to reimburse Tenant for any such payment within ten (10) days after written
notice from Tenant, then such failure by Landlord shall be a default under the Lease (for which the
Mortgagee shall have notice and cure period as set forth in the SNDA). Upon, and as a condition
to, an assignment to Tenant of the TI Construction Contract or the IPBI Construction Contract, the
obligations of Landlord set forth in this Section 7 which are obligations of Landlord arising under
or relating to performance of the IPBI Construction Contract or the TI Construction Contract
(excluding the Work Funding Obligations and any funding obligation of Landlord under this Lease for
payment of the Initial Premises Building Improvements, up to a maximum of [**REDACTED**] shall become the obligations of Tenant and Tenant shall deliver
an Assumption Agreement, which shall inure to the benefit of Landlord and Mortgagee; Tenant shall
discharge such obligations diligently and in good faith.
8. Construction of the Tenant Improvements and Building Improvements.
(a) The Landlord shall, using all new materials (or like-new
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materials) cause to be performed (i) the Tenant Improvements provided for in
the Tenant’s Plans and Specifications submitted to and reasonably approved by the
Landlord as provided for herein and (ii) the work described in Schedule “1”
hereto as the Building Improvements as modified, if at all, by the Tenant’s Plans
and Specifications.
(b) The Landlord, at its sole cost and expense (which expense shall not be
deducted from the Tenant Improvement Allowance), shall be solely responsible for
performing the Building Improvements, including, but not limited to, preparing
construction drawings for the Building Improvements, and acquiring all requisite
permits and licenses.
(c) The Landlord shall use good faith and diligence in completing the
Initial Premises for the Tenant’s occupancy, and in completing the Initial
Premises Work, which shall be completed on a phase-by-phase basis, no later than
the Phase I Substantial Completion Date, the Phase II Substantial Completion Date
or the Phase III Substantial Completion Date, as applicable.
(d) The Landlord covenants and agrees that all Total Work performed shall be
performed in a good and workmanlike manner and in accordance with all Applicable
Laws and that the Tenant Improvements and the Initial Premises Building
Improvements shall be constructed in accordance with the final approved Tenant’s
Plans and Specifications, and Landlord’s Plans and Specifications, respectively.
The covenants and obligations of Landlord set forth in this Section 8 of the Work Letter (excluding
the Work Funding Obligations and any funding obligation of Landlord under this Lease for payment of
the Initial Premises Building Improvements, up to a maximum of [**REDACTED**] shall be binding upon Tenant, and inure to the benefit of Landlord and
any Mortgagee, from and after the date of an assignment to Tenant of the TI Construction Contract
or the IPBI Construction Contract.
9. Change Orders. After the parties approve the Tenant’s Plan and Specifications, any
changes to such plans shall require the prior written approval of the Tenant and the Landlord, such
approval not to be unreasonably withheld, conditioned or delayed. If the Tenant desires any change
in the Tenant’s Plan and Specifications, then the Tenant Architect shall issue to the General
Contractor, with a copy to the Landlord’s Project Manager, the desired changes as an Architect’s
Supplemental Instruction (each an “ASI”). If the General Contractor deems that the applicable ASI
constitutes a deviation in the cost and/or time from the Tenant’s Plans and Specifications, the
General Contractor shall issue a change order request (the “Change Order Request”) in no event more
than seven (7) Business Days after receipt of the ASI, including the following items: (i) a summary
of any increase in the cost caused by such ASI (the “Change Order Cost”), and (ii) an estimate of
the number of days of any delay caused by such ASI (the “Change Order Delay”). In the event that
the Tenant shall not receive a Change Order Request within such seven (7) Business Day response
period, each day beyond such seven (7) Business
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Day period shall eliminate one day of Change Order Delay. The Tenant and the Tenant Architect will
then review the General Contractor’s Change Order Request and shall, within three (3) Business Days
either approve or deny the Change Order Request, including the Change Order Cost and the Change
Order Delay, and shall copy the Landlord’s Project Manager on communications relating to such
decision. If the Tenant and the Tenant Architect approve the Change Order Request, the Tenant and
the Tenant Architect shall issue a change order (the “Change Order”) for approval by the General
Contractor and the Landlord which shall not be unreasonably withheld, conditioned or delayed, and
the General Contractor and the Landlord shall thereafter each execute the Change Order and the
General Contractor or the Tenant Architect, as applicable, shall cause the appropriate changes to
the Tenant’s Plans and Specifications to be made. To the extent that a Change Order attributable
to the Tenant during the course of construction causes any increase in the Stipulated Sum with
respect to the Tenant Improvements, then coincident with written acceptance of such Change Order by
the Tenant and the Landlord, the Tenant shall pay an Additional Tenant Payment (as hereinafter
defined) to the Escrow Agent sufficient to cover the cost of such Change Order, which sum shall be
placed by the Escrow Agent into the Escrow Account (as defined hereinafter) and disbursed in
accordance with the TI Escrow Agreement. If the Tenant fails to respond within such three (3)
Business Day period, the Tenant shall be deemed to have rejected the requested Change Order and
neither the Landlord nor the General Contractor shall have any further obligation with respect to
such requested Change Order. If the Tenant fails to deposit the Additional Tenant Payment with
Escrow Agent coincident with Tenant’s written acceptance of the Change Order as required hereunder,
and such failure continues for five (5) Business Days after Tenant’s written acceptance of the
Change Order, then such Change Order shall be automatically null and void, and no increase shall
occur in the Stipulated Sum of the TI Construction Contract.
10. Punch List. When the Initial Premises Work, on a floor-by-floor basis, is nearing
Substantial Completion, the General Contractor shall provide the Landlord, Landlord’s Project
Manager, the Tenant and the Tenant Architect with a list of work items that remain to be completed,
and a request for inspection. The Landlord shall schedule a walk-through with the Landlord’s
Project Manager and the Tenant Architect of the applicable floor(s), in no event later than five
(5) Business Days following receipt of the request for inspection. The Tenant Architect will
create a discrepancy list with input from the Landlord’s Project Manager (each a “TI Punch List”)
of the items of the Tenant Improvements, if any, that the Tenant Architect deems incomplete or not
in accordance with the Tenant’s Plans and Specifications. The Landlord’s Project Manager will
create a discrepancy list with input from Tenant’s Architect (each a “IPBI Punch List”) of the
items of the Initial Premises Building Improvements, if any, that the Landlord’s Project Manager
deems incomplete or not in accordance with the Landlord’s Plans and Specifications. The TI Punch
List and the IPBI Punch List are sometimes collectively referred to herein as the “Punch List”.
The General Contractor’s construction manager may accompany the parties on any Punch List
walk-through. The Punch List shall be delivered to the Landlord, the Tenant, and the General
Contractor not later than ten (10) Business Days after the date Landlord and Tenant have received
notice from the General Contractor that the Initial Premises Work, on a floor-by-floor basis, is
ready for inspection. The General Contractor will complete or correct the Punch List items and
request re-inspection by notice to the Landlord and the Tenant Architect. The Work and
re-inspection will continue until the Punch List items, on a floor by floor basis, are resolved.
Each of the TI Construction Contract and the IPBI
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Construction Contract shall obligate the General Contractor to resolve all Punch List Items no later than thirty
(30) days after receipt of any applicable Punch List. When any dispute exists between the
Landlord, the Tenant or the General Contractor as to whether a Punch List discrepancy has been
resolved it shall be determined by the Neutral where such decision shall be final in all such
circumstances. Once the Tenant Architect determines that the TI Punch List items and the TI Punch
List discrepancy, if any, has been resolved, the Tenant Architect will issue an AIA Form G704 along
with a list of any remaining minor items of deficient work for the TI Construction Contract. Once
the Landlord’s Project Manager determines that the BI Punch List items and the BI Punch List
discrepancy, if any, has been resolved, the Landlord’s Project Manager will issue an AIA Form G704
along with a list of any remaining minor items of deficient work for the IPBI Construction
Contract.
11. Access During Construction. At such time as such Initial Premises or portions
thereof are Sufficiently Complete, the Tenant thereafter shall have, at no cost to the Landlord,
full and completed access to such applicable portion of the Initial Premises and all utilities for
the purpose of preparing such space for the Tenant’s occupancy, including, but not limited to,
moving and installing furniture, fixtures, and equipment, installing supplemental cabling and
communications and computer equipment and other technology related equipment, decorating, and
performing any other tasks deemed necessary or useful by the Tenant in preparing the Initial
Premises for the Tenant’s occupancy. The Tenant acknowledges for itself and its authorized agents,
employees and contractors that the access to the Initial Premises shall be afforded during such
time as the Initial Premises Work shall be continuing, or any portion thereof, and in that regard,
the Tenant releases the Landlord and its members, officers, directors, employees, agents and
contractors, from any claim, liability, loss or damage arising out of or related to such access to
a site in which the Initial Premises Work is on-going, including without limitation damage to
completed portions of the Initial Premises Work, and the Tenant assumes all risk associated with
such access, except to the extent of the gross negligence or willful misconduct of the Landlord and
its members, officers, directors, employees, agents or contractors. In that regard, the Tenant
agrees to indemnify, defend and hold harmless the Landlord and its members, officers, directors,
employees, agents and contractors in connection with any claim made against the Landlord arising
out of the Tenant’s access to the Initial Premises, or any portion thereof, during such
construction phase, except to the extent of the gross negligence or willful misconduct of the
Landlord and its members, officers, directors, employees, agents or contractors.
12. Defective Work; Warranties. For a period of one (1) year after the Term
Commencement Date, the Landlord, at its sole cost and expense, shall repair or correct any
defective Initial Premises Work or materials installed by the General Contractor or any contractor
(other than any contractor engaged by the Tenant), or any Initial Premises Work or materials that
prove defective as a result of any act or omission of the General Contractor or any of its
employees, agents, contractors, vendors, or sub-contractors, or any of their employees, agents,
contractors, vendors, or sub-contractors. The Landlord shall use commercially reasonable efforts to
enforce all warranties obtained by the Landlord in connection with the Initial Premises Work.
Additionally, the Landlord agrees that the Tenant, as a third party beneficiary of contracts
relating to the Initial Premises Work, may independently seek to enforce such warranties should the
Landlord fail to do so after a twenty (20) day written notice from the Tenant.
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13. Construction Costs.
(a) The term “Construction Cost” shall mean the General Contractor’s total cost of all
materials and labor; general conditions (including, without limitation, fees and permits, testing
and supervision, temporary facilities, safety and protection, cleaning, tools, blueprints and
reproduction, telephone, field supervision and the like), premium cost of workmen’s compensation,
public liability and damage insurance charged by the General Contractor, and sub-contractors’
charges for overhead and profit relating to the Initial Premises Building Improvements or Tenant
Improvements (as applicable), all as set forth on the General Contractor’s fixed price bid for each
of such Tenant Improvements or Initial Premises Building Improvements, as applicable, but with
respect to the Tenant Improvements, such Construction Cost being subject to adjustment pursuant to
Change Orders requested and approved by the Tenant in writing and approved by the Landlord, or to
Change Orders requested and approved by the Landlord in writing and approved by the Tenant, and
with regard to the TI Construction Contract shall be subject to reduction for any Per Diem Costs.
(b) Any improvements shown on the Tenant’s Plans and Specifications which are in addition to
the Initial Premises Building Improvements shall be provided and installed at the Tenant’s sole
cost and expense (except for the Tenant Improvement Allowance), and such cost shall include but
shall not be limited to costs included in the Construction Cost, for construction by the General
Contractor (except no fee shall be charged or allocated for the Landlord’s supervision or review of
the Initial Premises Work, including any additional Initial Premises Work as a result of Change
Orders).
14. Payment for the Tenant Improvements.
(a) The parties agree that within five (5) days of the Execution Date, the Landlord, the
Tenant, and the Escrow Agent shall enter into an escrow agreement, the form of which is attached to
the Lease as Exhibit “H” (the “TI Escrow Agreement”) pursuant to which there shall be established
two interest-bearing accounts with the Escrow Agent at Xxxxx Fargo in the name of the Escrow Agent,
for the collection and disbursement of all funds necessary to pay for the Construction Cost of the
Tenant Improvements (one account to contain only monies deposited by the Tenant and one account to
contain only monies deposited by the Landlord and any Mortgagee) (collectively such two (2) escrow
accounts hereinafter being referred to as the “Escrow Account”).
(i) Cash Deposit. No later than five (5) Business Days after the Execution Date,
the Landlord shall deposit, or cause to be deposited, with the Escrow Agent the sum
of [**REDACTED**] with respect to the Tenant Improvements under the TI Construction
Contract (the “Cash Deposit”).
(ii) Standby Letter of Credit. On or before the Effective Date, the Landlord shall
deposit, or cause to be deposited, with the Escrow Agent one irrevocable standby
letter of credit issued by Bank of America, N.A., in the form required hereunder and
approved by Mortgagee, in the amount of [**REDACTED**], and an additional irrevocable
standby letter of credit issued by an Authorized Bank (as defined herein), in the
form required hereunder and approved by Mortgagee, in
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the
amount of $[**REDACTED**], which together shall equal the sum of the Tenant
Improvement Allowance less the Cash Deposit (collectively, the “Standby Letter of
Credit”). The Standby Letter of Credit shall have an initial expiration date not
earlier than December 31, 2012. All costs associated with the Standby Letter of
Credit shall be paid by the Landlord. The Tenant shall have the right to approve
the form of the Standby Letter of Credit prior to its issuance, which approval shall
not be unreasonably withheld, conditioned or delayed. The Standby Letter of Credit
shall be irrevocable, and shall be issued by Bank of America and/or such other
financial institution which is a national or regional banking institution, chartered
by the United States or a state within the United States, and maintains offices
within the continental United States (any such institution, an “Authorized Bank”).
Any portion of the Standby Letter of Credit issued by Bank of America shall permit a
draw thereon in Scranton, Pennsylvania, Los Angeles, California and by facsimile;
any portion of the Standby Letter of Credit issued by an Authorized Bank shall
permit a draw thereon in Brooklyn, New York and New York, New York, and by facsimile
to an office location within the continental United States. The Escrow Agent shall
draw under the Standby Letter of Credit, as required hereunder, on a single
occasion, which draw shall be in an amount (herein referred to as the “Landlord’s
Unfunded Cash Contribution Balance”) which is equal to the lesser of: (Y) the
aggregate balance of the Standby Letter of Credit (the “Aggregate LC Balance”), and
(Z) the amount of the Tenant Improvement Allowance less the aggregate disbursements
as of such date made by Escrow Agent on the TI Construction Contract, for FFE&M
Costs (as defined hereinafter), and for Reimbursable Tenant TI Architect Costs, the
parties recognizing that the Standby Letter of Credit is intended to reduce in
amount from time to time as and when Landlord Continuing Cash Contributions (as
defined hereinafter) are made towards the Tenant Improvement Allowance and that at
any given time the aggregate face amount or amount available to be drawn under the
Standby Letter of Credit may be greater than the amount then required to be paid by
Landlord hereunder. At any time that the Escrow Agent is required by the terms of
the TI Escrow Agreement to draw under the Standby Letter of Credit, it shall do so
by submitting to the financial institution issuing the Standby Letter of Credit an
affidavit of the Escrow Agent stating that (I) the Escrow Agent has not received
either from the Landlord or on the Landlord’s behalf, any Landlord Continuing Cash
Contribution required to be paid by the Landlord under Section 4 of the TI Escrow
Agreement within the time period set forth in said Section 4, and (II) the Escrow
Agent has received a Verification with respect to the applicable Approved TI Draw
Request.
(iii) Tenant Payment and Additional Tenant Payment. Within five (5) Business Days
after the later of: (i) the Execution Date, and (ii) the date the Landlord and the
Tenant shall have approved the General Contractor’s bid for the Tenant Improvements,
the Tenant shall deposit with the Escrow Agent a sum equal to (Y) the amount
remaining after subtracting from the Stipulated Sum due to the General Contractor
under its final accepted bid for the Tenant Improvements under the TI Construction
Contract the sum of the Tenant Improvement
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Allowance plus (Z) the amount necessary to cover any IPBI Overage Amount, if
any (the “Tenant Payment”). Tenant shall fund all amounts necessary to pay for any
approved Change Order as required pursuant to Section 9 herein (each an “Additional
Tenant Payment”).
(b) Except for the sums due from the Landlord to the General Contractor upon execution of the
TI Construction Contract for the Tenant Improvements (the “Mobilization Deposit”), which shall be
paid by Escrow Agent from the Cash Deposit, the TI Construction Contract with the General
Contractor for the Tenant Improvements shall provide, among other provisions, that all draw
requests for any sums due to the General Contractor for payment of the Construction Cost for the
Tenant Improvements shall be submitted simultaneously, with supporting documentation attached as
required under the TI Construction Contract, to each of the Landlord, the Tenant Architect, the
Mortgagee and the Escrow Agent (each a “TI Draw Request”). A TI Draw Request under the TI
Construction Contract shall be subject to the review and approval of the Landlord and the Tenant
Architect as provided in the TI Construction Contract; provided, however, that each of the Landlord
and the Tenant Architect shall have five (5) Business Days after its Receipt of any TI Draw Request
(the “Approval Period”) to review the TI Draw Request and provide written notice to the other
party, the Neutral, and to the Escrow Agent of a dispute with respect to any TI Draw Request (any
such notice, a “Dispute Notice”). If a Dispute Notice expressly states or identifies a portion of
a TI Draw Request as not being in dispute, such portion is herein referred to as the “Non-Disputed
TI Draw Request.” A TI Draw Request that is not subject to a Dispute Notice and has been approved
in writing by both Landlord and the Tenant Architect is herein referred to as a “Jointly Approved
TI Draw Request.” In all events where either of the Landlord or the Tenant Architect shall deliver
a Dispute Notice, the Escrow Agent shall not make any disbursements from the Escrow Account or draw
upon the Standby Letter of Credit until receipt of written confirmation from the Neutral that a
decision has been made with regard to such dispute, excluding however any Approved TI Draw Request
which may be disbursed. The Neutral shall be obligated under the terms of the TI Construction
Contract to render a binding decision within five (5) Business Days of its receipt of a timely
delivered Dispute Notice.
“Receipt” means that any notice or delivery to a party sent by: (i) hand delivery has been
acknowledged in writing by the party to whom it was sent as having been received and the effective
date of such receipt shall be the date on the acknowledgement, (ii) nationally recognized overnight
courier with fees prepaid, has been delivered or refused as evidenced by the written records of the
third party courier service and the effective date of such receipt shall be the date on the courier
services’ records, (iii) facsimile has a transmission sheet evidencing a successful transmission
and such notice/delivery was also sent by U.S. mail on the same day and the effective date of such
receipt shall be the date of the transmission if sent prior to 5:00 p.m. eastern standard time, or
the following day if sent after 5:00 p.m. eastern standard time, or (iv) e-mail has written “read
receipt” evidence (but not a delivery status notification) and such notice/delivery was also sent
by U.S. mail on the same day and the effective date of such receipt shall be the date set forth in
the “read receipt” if prior to 5:00 p.m. eastern standard time, or the following day if after 5:00
p.m. eastern standard time.
An “Approved TI Draw Request” shall mean any of:
(1) a Jointly Approved TI Draw Request;
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(2) a Non-Disputed TI Draw Request;
(3) the portion of a Disputed TI Draw Request which has approved in writing by the Neutral
within the time period required for the Neutral to deliver a binding decision; and
(4) a TI Draw Request where each of the following has been received by the Escrow Agent (a
“Deemed Approved TI Draw Request”): (A) the written approval of either the Landlord or the Tenant
Architect (the “Deemed Approver”), (B) a certification from the Deemed Approver that the TI Draw
Request is in full compliance with the requirements of the TI Construction Contract, (C) proof of
Receipt of the TI Draw Request by the party whose written approval is not included in the TI Draw
Request (the “Deemed Party”), and (D) evidence that five (5) Business Days have passed (not
including the date of the Receipt) since the Deemed Party’s Receipt of the TI Draw Request.
(c) Provided that Landlord has neither received from Tenant’s Architect nor delivered to
Tenant’s Architect a Dispute Notice within the Approval Period, then the Landlord shall fund, or
cause to be funded, to the Escrow Agent the amount due under any Jointly Approved TI Draw Request
within twenty (20) days after Landlord’s receipt of the TI Draw Request prepared in accordance with
the TI Construction Contract. If Landlord either delivers or has received a Dispute Notice within
the Approval Period, Landlord shall fund, or cause to be funded, to the Escrow Agent any
Non-Disputed TI Draw Request and then Landlord shall fund, or cause to be funded, to the Escrow
Agent the remainder of the TI Draw Request within twenty (20) days after Landlord’s receipt of
written notice either from the Neutral as to its binding decision or jointly from Landlord and
Tenant that the unpaid balance of such disputed TI Draw Request can be paid. Landlord shall fund,
or cause to be funded, to the Escrow Agent the amount due under any Deemed Approved TI Draw Request
within twenty (20) days after Landlord’s receipt from Escrow Agent of the Notice of Deemed
Approval. The amounts to be deposited by Landlord under this Section 14(c) are herein referred to
as the “Landlord Continuing Cash Contributions.” In all events, the aggregate total funding paid by
or on behalf of Landlord to the Escrow Agent (including the Cash Deposit, Landlord Continuing Cash
Contributions, and any draws made under the Standby Letter of Credit) shall not exceed the amount
of the Tenant Improvement Allowance.
(d) The TI Construction Contract shall provide that the total sum due to the General
Contractor under the TI Construction Contract shall be subject to reduction for all Per Diem Costs
due under this Work Letter. All references in this Work Letter and in the TI Escrow Agreement to
the Construction Cost of the TI Construction Contract shall mean the Construction Costs thereunder
as reduced by the Per Diem Costs. For purposes of clarity, the parties understand and agree that
Per Diem Costs may be incurred by the General Contractor for failure to timely deliver the Initial
Premises regardless of whether the failure to timely deliver occurs in connection with the Tenant
Improvements, the Initial Premises Building Improvements, or both. The parties hereto agree that
the funds in the Escrow Account shall be utilized firstly from sums contributed by or on behalf of
the Landlord before any sums shall be utilized from the Tenant Payment, except for any Additional
Tenant Payment, the intent being to disburse lastly the Tenant Payment after disbursement of all
sums related to the Tenant Improvement Allowance and any Additional Tenant Payment. Accordingly,
the Per Diem Costs shall reduce the amount of the Tenant Payment and not reduce the Tenant
Improvement Allowance.
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(e) If after final payment has been made to the General Contractor under the TI Construction
Contract, the Tenant Improvement Allowance has not been fully disbursed and no Event of Default on
the part of Tenant has occurred and is continuing, then the balance of the Tenant Improvement
Allowance, up to an amount not to exceed [**REDACTED**] per square foot of
Rentable Area contained in the Initial Premises, as contemplated under Section 1.01(vvv) of the
Lease, shall be paid to the Tenant for its costs as permitted by Section 1.01(vvv) of the Lease
such costs, the “FFE&M Costs”). In that regard, the Tenant shall make application to the Escrow
Agent for payment of FFE&M Costs by submitting one or more payment requests to the Landlord,
accompanied with sufficient back-up detail as may be reasonably required by the Landlord and, after
the Landlord’s approval, not to be unreasonably withheld, conditioned or delayed, within twenty
(20) days of receipt of such written request, the parties shall jointly submit a written
application to the Escrow Agent for payment of the amounts set forth therein to the Tenant (any
such application, an “FFE&M Directive”), and shall simultaneously provide a copy of any FFE&M
Directive to Lender. Within thirty (30) days after receipt of an FFE&M Directive, the Escrow Agent
shall disburse the amount set forth in the FFE&M Directive (each an “FFE&M Payment”) to the Tenant.
If the Landlord has not funded, or caused to be funded, the full amount of the Tenant Improvement
Allowance into the Escrow Account, then the Landlord shall be required to fund, or cause to be
funded, to the Escrow Agent within twenty (20) days after delivery of an FFE&M Directive, such
additional amount as is necessary to pay the FFE&M Payment in full (but not to exceed in the
aggregate the unfunded portion of the Tenant Improvement Allowance); if an FFE&M Payment is
required to be made by Landlord and is not made by the Landlord within such twenty (20) day period,
then the Escrow Agent shall be obligated to draw on the Standby Letter of Credit to satisfy the
FFE&M Payment.
(f) To the extent that either (i) any Escrow Funds deposited by or on behalf of Landlord
remain in the Escrow Account after payment of the Construction Cost of the Tenant Improvements, the
FFE&M Costs, and the Reimbursable Tenant TI Architect Costs (collectively, the “Aggregate Allowance
Costs”), or (ii) the Landlord’s Unfunded Cash Contribution Balance is greater than zero
(collectively, (i) and (ii) referred to as “Landlord’s Remaining Funds”), then following five (5)
Business Days notice to each of the Landlord, Tenant and Lender, Escrow Agent shall disburse to
Tenant that portion of Landlord’s Remaining Funds which are directly attributable to a reduction in
the Aggregate Allowance Costs due to an offset of Per Diem Costs, and all other portions of
Landlord’s Remaining Funds to Landlord. To the extent that any Escrow Funds deposited by or on
behalf of Tenant remain after payment of the Construction Cost of the Tenant Improvements, then the
remaining Escrow Funds deposited by Tenant shall be disbursed to Tenant.
(g) Should the (i) Landlord fail to fund or cause to be funded to the Escrow Agent within the
time period set forth in Section 14(c) hereof any amount required to be paid by Landlord pursuant
to such Section 14(c), and/or (ii) Escrow Agent fails or refuses, within thirty (30) days after the
submission by the General Contractor of a TI Draw Request prepared in compliance with the TI
Construction Contract, to disburse from the Escrow Account for any reason any sums due from the
Landlord to pay the Construction Cost for the Tenant Improvements, then, the Tenant, at its sole
election, but without any obligation to do so, upon receipt of a notice from the General Contractor
contemplated under Section 5 of this Work
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Letter, may disburse directly to the General Contractor any of such sums as may be necessary to
pay the General Contractor to complete the Tenant Improvements not to exceed the Stipulated
Sum with respect to the Tenant Improvements (a “Direct Tenant Payment”). Any sums paid to the
General Contractor for a Direct Tenant Payment up to the Tenant Improvement Allowance (taking into
consideration any funds disbursed by Escrow Agent to the General Contractor previously funded by
the Landlord) may be deducted by the Tenant from any sums due under the Lease for the payment of
Rent at such times as the Tenant may elect. Any Direct Tenant Payment disbursed by the Tenant
which is within the Tenant Improvement Allowance shall bear interest at the Stipulated Rate of
Interest as applied to any un-reimbursed and un-deducted funds from time to time outstanding.
15. Payment for the Initial Premises Building Improvements.
(a) The IPBI Construction Contract for the Initial Premises Building Improvements shall
provide, among other provisions, that all draw requests for any sums due to the General Contractor
for payment of the Construction Cost for the Initial Premises Building Improvements shall be
submitted simultaneously, with supporting documentation attached as required under the IPBI
Construction Contract, to each of the Landlord, the Tenant, the Tenant Architect, and the Mortgagee
(each a “BI Draw Request”). A BI Draw Request under the IPBI Construction Contract shall be
subject to the review and approval of the Landlord, Tenant and the Tenant Architect in accordance
with the same procedure set forth for TI Draw Requests. In all events where any of the Landlord,
the Tenant, the Tenant Architect and/or the Mortgagee shall dispute whether any of the Initial
Premises Building Improvements has adequately progressed with respect to any BI Draw Request then
such dispute shall be finally decided by the Neutral. The Neutral shall be obligated under the
terms of the BI Construction Contract to render a binding decision within five (5) Business Days of
its receipt of a timely delivered Dispute Notice.
(b) The IPBI Construction Contract shall provide that the total sum due to the General
Contractor under the TI Construction Contract shall be subject to reduction for all Per Diem Costs
due under this Work Letter. For purposes of clarity, the parties understand and agree that Per
Diem Costs may be incurred by the General Contractor for failure to timely deliver the Initial
Premises regardless of whether the failure to timely deliver occurs with respect to the Tenant
Improvements, the Initial Premises Building Improvements, or both. Accordingly, the Per Diem Costs
shall reduce the amount due and payable under the TI Construction Contract and not the IPBI
Construction Contract.
(d) Should the Landlord fail to pay, or cause the General Contractor to be paid, for any
reason, within thirty (30) days after the date that an Approved BI Draw Request was submitted to
the Mortgagee, any sums due from the Landlord to pay such Approved BI Draw Request, then, Tenant,
at its sole election, but without any obligation to do so, upon receipt of a notice from the
General Contractor sent in compliance with Section 5 of this Work Letter, may disburse directly to
the General Contractor any of such sums as may be necessary to pay the General Contractor amounts
due and payable under Approved BI Draw Requests. Any sums paid by Tenant to the General Contractor
for an Approved BI Draw Request in compliance with the provisions set forth in Section 5 of this
Work Letter may be deducted, provided no Event of
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Default on the part of Tenant under the Lease is then outstanding and continuing, by the Tenant from the Tenant’s Rent obligations due and owing
under this Lease for the immediately succeeding Rent payment, and thereafter deducted from the next succeeding Rent payments owed
by Tenant, until such amount has been recouped, and shall bear interest at the Stipulated Rate of
Interest as applied to any un-reimbursed and un-deducted funds from time to time outstanding. If
an Event of Default exists on the part of Tenant at any time that Tenant is owed money in
connection with its payment of an Approved BI Draw Request hereunder, then Landlord may elect to
offset such amounts against all amounts owed by Tenant under this Lease.
(e) The Landlord warrants and represents to the Tenant that as of the Effective Date the
Landlord presently has on deposit with the Mortgagee the sum of [**REDACTED**] (the “Reserve Fund”), which
Reserve Fund shall be available to the Landlord to fund the Landlord’s financial obligations
related to the Construction Cost of the Initial Premises Building Improvements, subject to
Mortgagee’s rights and remedies under the loan documents between Landlord and Mortgagee.
(f) On or prior to the Effective Date, Landlord shall fund the Sign Removal Payment (as
defined in Addendum 2 to the Lease) of [**REDACTED**] to the Mortgagee or
directly to AT&T.
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SCHEDULE “1”
BASE BUILDING REQUIREMENTS
BASE BUILDING REQUIREMENTS
GENERAL
Fully finished toilet rooms in all relevant floors including the second floor are in compliance
with the Current Florida Plumbing Code, Florida Accessibility Code and ADA. The finishes shall be
consistent with finishes that have been completed by Landlord on the 10th floor of the
Building, except as follows:
Tile & Countertop material — (similar to existing on the 10th floor as of the
Effective Date, style, size & location, but manufactured locally in lieu of overseas)
Toilet partitions — (similar to existing on the 10th floor as of the Effective
Date, different material)
Faucets — (counter mounted in lieu of wall mounted)
Cove lighting — different make and model — same light output)
Completed public corridors on multi-tenant floors (if applicable). The finishes shall be
consistent with finishes that have been completed by Landlord on the 10th floor of the
Building
Base Building elevator lobby finishes on all relevant floors. The finishes shall be consistent
with finishes that have been completed by Landlord on the 10th floor of the Building
with the exception of make and model of recessed can lights.
Florida Accessibility Code and ADA compliance throughout the Building
Fully finished ground floor entry and elevator lobbies
CONCRETE
Smooth and level concrete floors
STRUCTURAL
Tenant floors and corridor areas designed for eighty (80) pounds per square foot minimum combined
load (live and moveable partition load)
Elevator Lobbies designed for one hundred (100) pounds per square foot live load
EXTERIOR BUILDING GLAZING
“High-Efficiency” insulated glass with an average minimum shading coefficient of 0.23
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DEMOLITION
All existing walls (demising and partition), flooring, ceiling system, light fixtures, cabling,
electrical and HVAC distribution shall be demolished and removed from the Initial Premises
WINDOW TREATMENT
Perimeter window blinds (100% operable)
FIRE PROTECTION
Sprinkler heads at 1/225 square feet (approximate) in accordance with NFPA13
PLUMBING
Available waste, water and vent risers for tie-in for Tenant plumbing
HVAC
HVAC system capable of maintaining the following interior conditions:
SUMMER: 75 dry-bulb inside with 95 dry-bulb and 77 wet-bulb outside
WINTER: 70 dry-bulb inside with 29 dry-bulb outside
WINTER: 70 dry-bulb inside with 29 dry-bulb outside
Building meets all local/state energy codes and required ASHRAE standards
Main HVAC loop/primary distribution ductwork installed
A secondary distribution ductwork and grilles for fan-powered boxes installed
HVAC System provides 0.06 cfm of conditioned outside ventilation air for each square foot of Tenant
area plus 5 cfm per person based on office occupancy
ELECTRICAL/TELEPHONE/SECURITY
1.5 xxxxx per usable square foot for lighting the Tenant area
5 xxxxx per usable square foot for power in the Tenant area
Transformers provided as required to supply minimum of 5 VA/ft2 (usable square feet)
power to Tenant spaces
Exit signs at stairwells
Life safety panel with provisions for Tenant tie-in
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Electrical distribution to meter socket
Parking area lighting at a minimum average of 1 foot candle
Parking lighting controlled by time clock/combination photocell for dusk-to-xxxx and dusk-to-time
off control schedules
The telephone system infrastructure from local service provider includes a 4’ x 8’ telephone
backboard in the building “core” telephone room, interconnected with conduit sleeves through the
floors. A #6 copper ground conductor and quadplex receptacle is provided at each backboard
A Shell Building security monitoring system is provided with controlled access at all Building
entrances
EMERGENCY POWER
Three (3), 500 KW Generators each with twelve (12) hour minimum run time at one hundred percent
(100%) load and with automatic transfer switch available for the Tenant’s use at no cost to the
Tenant, to power the Tenant’s data closet and at least two hundred (200) workstations, subject to
the provisions of Section 15.11 of the Lease. The Tenant shall also have access to the results of
the Landlord’s maintenance tests for such generators.
LIGHTING PROTECTION
A complete UL Master Label lightning protection system as per NFPA780
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SCHEDULE “2”
SUMMARY OF TENANT’S HOLDOVER COSTS
SUMMARY OF TENANT’S HOLDOVER COSTS
| August 21, 2012 | ||||||||||||||||||||||||||||||||||||
| 8120 Lease | 8120 Lease | Total | January 31,2013 | |||||||||||||||||||||||||||||||||
| End of Term | 8100 Lease | (Suites 201-202) | (Suites 205-208) | 8200 Lease | 8201 Lease | 8211 Lease | (excl Quad 11) | Quadrant 11 (2) | ||||||||||||||||||||||||||||
| Topic | Component | Amount | Amount | Amount | Amount | Amount | Amount | Amount | Amount | |||||||||||||||||||||||||||
Estimated Monthly Rent during Holdover Period |
Total Monthly Rent | $ | 64,283.46 | $ | 11,930.50 | $ | 16,963.78 | $ | 49,883.40 | $ | 33,822.70 | $ | 49,251.03 | $ | 226,134.87 | $ | 44,026.49 | |||||||||||||||||||
Estimated Monthly Holdover Cost(1) |
$ | 16,070.87 | $ | 2,982.63 | $ | 4,240.95 | $ | 12,470.85 | $ | 8,455.68 | $ | 12,312.76 | $ | 56,533.72 | $ | 11,006.62 | ||||||||||||||||||||
Projected Headcount (as of 12/31/2012)
| 7th | 107 | 37 | 144 | |||||||||||||||||||||||||||||||||
| 8th | 13 | 22 | 46 | 54 | 17 | 152 | ||||||||||||||||||||||||||||||
| 9th | 1 | 55 | 8 | 122 | 186 | |||||||||||||||||||||||||||||||
Floor Location at |
20th | 67 | 79 | 60 | 22 | 228 | ||||||||||||||||||||||||||||||
AT&T Tower(3) |
21st | 5 | 31 | 6 | 146 | 29 | 217 | |||||||||||||||||||||||||||||
| 22nd | 18 | 106 | 78 | 202 | ||||||||||||||||||||||||||||||||
| 23rd | 62 | 148 | 210 | |||||||||||||||||||||||||||||||||
| 24th | 17 | 184 | 45 | 246 | ||||||||||||||||||||||||||||||||
| 25th | 94 | 5 | 99 | |||||||||||||||||||||||||||||||||
| 304 | 44 | 238 | 180 | 346 | 378 | 194 | 1684 | |||||||||||||||||||||||||||||
To the extent that the Tenant has 18 or fewer employees from a building at its
current facilities moving onto a particular floor at the Premises, the failure to
deliver said floor by a particular date shall not be deemed to trigger holdover costs
with respect to said building alone. By way of example if Tenant has 200 employees
moving onto a particular floor within the Premises, and 190 of those employees are
moving from one building and 10 are from a second building, the failure to deliver the
floor by a particular date shall not be deemed to cause a holdover with respect to the
building where only 10 employees are moving from.
| (1) | Holdover costs are comprised of the Holdover premium and the applicable sales tax on the same. | |
| (2) | Provided for information purposes only. No holdover costs would be associated with respect to the Quadrant. | |
| (3) | Headcount moves are for information purposes only and may change from time to time. Tenant shall have no liability for changes to this chart. Headcount does not include 16 FTE moving from Riverside. |
EXHIBIT C — WORK LETTER
Page 28
Page 28
SCHEDULE “3”
REQUIREMENTS FOR SUFFICIENT COMPLETION AND SUBSTANTIAL COMPLETION
Definition of “SUFFICIENTLY COMPLETE” AND “SUBSTANTIALLY COMPLETE”
| A. | “SUFFICIENTLY COMPLETE” |
All of the following must be complete in order for the Tenant Improvements to be considered
“Sufficiently Complete”:
| 1. | All walls complete including metal framing, drywall installation, and drywall finishing. | ||
| 2. | All wall finishes complete to include painting and wall coverings. | ||
| 3. | All door frames and doors installed and finished. | ||
| 4. | All drywall ceilings complete to include framing, drywall installation and drywall finishing. | ||
| 5. | All millwork installed including countertops. | ||
| 6. | All electrical devices including receptacles, switches and associated branch circuit conductors installed. | ||
| 7. | All floor boxes are installed with wiring provisions to accommodate the installation of systems furniture provided flexible pre-wired “whips”. | ||
| 8. | All floor sleeves required for vertical routing of cabling between I.T. Closets and wall sleeves required for horizontal routing of cabling from the I.T. Closets to the tenant space are installed. | ||
| 9. | All voice/data outlets are roughed-in with boxes and empty conduits to accommodate cabling installation. Wall mounted voice/data devices are roughed-in with junction boxes and conduits extending to above the ceiling grid with pull strings for cabling installation. | ||
| 10. | Ceiling grid is completely installed. | ||
| 11. | All lighting fixtures and life-safety systems (fire alarm devices, sprinkler heads, etc.) are installed and operational. | ||
| 12. | HVAC equipment including; VAV/FCU’s, return and supply grilles, and supplemental cooling for I.T. Closets are installed and operational. | ||
| 13. | Ceiling tiles installed only where sprinkler heads and/or ceiling mounted fire alarm devices (horn strobes, smoke detectors, etc.) are installed. | ||
| 14. | All plumbing work is complete including sinks, except for final connections to Tenant-Provided equipment. | ||
| 15. | All electrical power wiring in floor duct is complete and floor main duct repairs to gasketing are complete. Floor duct work is complete. | ||
| 16. | All electrical power wiring and receptacles required for the I.T. Closets is complete. | ||
| 17. | Cabling is routed vertically from the building’s Point of Entry (XXX) to the I.T. MDF and IDF Closets and terminated at the designated patch panels. | ||
| 18. | Cabling is routed above the ceiling at each floor from the I.T. IDF/MDF Closets to the wall mounted devices and terminated at the voice/data wall outlets. |
EXHIBIT C — WORK LETTER
Page 29
| 19. | Cabling is routed in the floor duct from the I.T. IDF/MDF Closets patch panels to the designated floor boxes and terminated to accommodate the systems furniture. | ||
| 20. | All cables are tested and certified in accordance with the project’s specifications. | ||
| 21. | Carpet is installed. | ||
| 22. | Ceiling tiles are installed. |
| B. | “SUBSTANTIAL COMPLETION” |
For the Tenant Improvements to be “Substantially Complete”, they must be “Sufficiently Complete” as
defined in paragraph A. above and, in addition, all of the following must be complete:
| 1. | Power connections are made from systems furniture provided whips to wiring in floor boxes/walls for all systems furniture. | ||
| 2. | All final electrical and plumbing connections are made to all Tenant-Procured equipment such as ice makers, refrigerators, coffee makers, microwaves, vending, printers, copiers, etc. | ||
| 3. | All architectural and engineering punch list and close-out items are completed (touch-up painting, baseboards installed, door hardware installed, HVAC Test & Balancing completed, etc.). | ||
| 4. | Cabling is routed into the system furniture’s spline/raceway and all cabling is terminated in the voice/data systems furniture outlets. |
EXHIBIT C — WORK LETTER
Page 30
EXHIBIT “D”
BUILDING RULES
Whenever the word “Tenant” is used in the Building Rules, it shall mean “the Tenant, its
servants, agents, invitees and any person in the Development on account of the Tenant.” In the
event of any conflict between the Lease and these Building Rules (as reasonably amended, modified
or supplemented from time to time by the Landlord as provided in the Lease), the terms of the Lease
shall control.
Subject to the terms of the Lease, the Tenant shall observe the following Rules (as reasonably
amended, modified or supplemented from time to time by the Landlord as provided in the Lease):
1. The sidewalks, entrances, escalators, elevators, stairways and corridors of the Development
shall not be obstructed by the Tenant or used by it for any other purpose than for ingress and
egress to and from the Development, including, but not limited to the Premises, and the Tenant
shall not place in the hallways (excluding the Premises), corridors (excluding the Premises),
stairways and elevator foyers any waste paper, dust, garbage, refuse, merchandise or anything
whatever that makes them unclean, untidy or unsafe. Notwithstanding the foregoing, any use by
Tenant of the hallways or corridors within the Premises shall be in compliance with all Applicable
Laws, including local building codes.
2. The windows that reflect or admit light into any of the Common Areas of the Development
shall not be covered or obstructed by the Tenant, and no awnings, curtains or blinds shall be put
up without the prior written consent of the Landlord. The Landlord agrees that the blinds that are
part of the Base Building Requirements are excluded from the foregoing sentence.
3. The water closets and other water apparatus shall not be used for any purpose other than
those for which they were constructed and no sweepings, rubbish, rags, ashes or other substances
shall be thrown therein. The cost of repairing any damage resulting from misuse shall be borne by
the tenant by whom the same is caused. The Tenant shall not let the water run unless in actual
use.
4. Other than the loading of file boxes (but not in bulk) and other smaller items, all loading
and unloading of merchandise, supplies, fixtures, equipment and furniture shall be made at such
times and in such manner and through such means of access to the Premises as shall be approved in
advance by the Landlord. The Tenant shall ensure that any trucks or other vehicles used by the
Tenant for loading or unloading shall not obstruct any access areas adjacent to or within the
Development. Advanced reservations should be made for the use of the freight elevator and the
loading docks.
5. No vehicles will be allowed to park in the loading dock area except those actively loading
or unloading materials.
EXHIBIT D
6. The Tenant shall not use the elevators in the Development for delivery of supplies, freight
or merchandise to or from the Premises (other than file boxes and other smaller items), except
during such reasonable intervals and hours and in such manner as the Landlord may reasonably
designate.
7. Passenger elevators shall not be used for moving freight (other than file boxes and other
smaller items). The designated freight elevators are the only elevators to be used for moving
materials (other than file boxes and other smaller items).
8. The Landlord shall have the right to regulate delivery of food and beverages into the
Development and the Premises, other than catered events, employee lunches and food vending
machines.
9. Other than file boxes and other smaller items, merchandise, furniture, fixtures, equipment
and construction equipment, materials and supplies shall not be taken into or removed from the
Premises, except at such times and in such manner as may be previously approved by the Landlord in
writing. Other than handcarts used to move file boxes and smaller items, the Tenant shall not use
nor permit to be used any hand trucks or wagons or other portable machinery within the Common Areas
of the Development, except pursuant to the prior written approval of the Landlord, such approval
not to be unreasonably withheld, conditioned or delayed. No heavy furniture shall be moved over
floors of the Common Areas so as to xxxx same. Floor and elevator protection is required at the
Tenant’s expense.
10. All damages to the Building caused by taking in or removing of the Tenant’s articles shall
be repaired at the expense of the Tenant. In the event the Tenant fails to do so, beyond any
applicable notice and cure period, the Landlord shall have the right to repair such damages and
xxxx the Tenant, including ten percent (10%) administrative fee, for the actual but reasonable and
documented out-of-pocket cost for the same.
11. No bicycles or other vehicles shall be brought within the Development, except as
specifically designated by the Landlord, however, the Landlord agrees to maintain bicycle racks in
locations as designated by the Landlord from time to time around the Common Areas for use of the
tenants.
12. No flammable oils or other flammable, dangerous or explosive materials shall be brought
into the Development or kept in the Premises.
13. Substantial business machines, mechanical equipment, file systems, safes, etc. shall be
placed and maintained by the Tenant, at the Tenant’s expense, in settings sufficient to distribute
the weight and to absorb and prevent unreasonable vibration and noise.
14. The Tenant shall not (i) make, commit or permit any unreasonable and improper noises in
the Development or (ii) interfere in any way with other tenants or those having business with them.
EXHIBIT D
15. Nothing shall be thrown by the Tenant out of the windows or doors or down or into the
passages, elevator shafts or skylights of the Development.
16. Except for service animals, no birds or animals shall be kept in or about the Premises,
nor shall musical instruments be played in the Premises unless approved by Landlord in writing.
17. Subject to the Landlord’s obligations under the Lease, the Tenant shall at all times keep
the Premises in a clean and sanitary condition.
18. The Tenant shall not use the Premises for sleeping apartments or residential purposes, or
for the storage of articles other than those required or useful for business purposes, or for any
immoral or unlawful purposes.
19. No public or private auction or other similar type of sale of any goods, wares, or
merchandise shall be conducted in or from the Premises.
20. No telephonic, telegraphic, electronic, wire service or other connections or electric
wiring shall be made in places other than those designated by the Landlord without the authority of
the Landlord, who will direct the electricians or other workmen as to where and how any wires or
equipment are to be introduced and without any such directions, no boring or cutting or otherwise
will be permitted.
21. The Tenant may not install air conditioning equipment of any kind in any part of the
Premises without the prior written consent of the Landlord, such consent not to be unreasonably
withheld, conditioned or delayed.
22. All glass and trimmings in, upon or about the doors and windows of the interior of the
Premises shall be kept whole, and whenever any part of thereof shall become broken, the same shall
be immediately replaced or repaired at Tenant’s expense under the direction and to the satisfaction
of the Landlord, unless caused by the gross negligence or willful misconduct of Landlord.
23. On the Mezzanine, the Tenant shall keep all exterior storefront surfaces and the inside
and outside of all glass in the doors and windows of the Premises clean, and shall replace promptly
at their expense, any cracked or broken window glass of the Premises with glass of like kind and
quality.
24. To the extent that any portion of the Premises is located on the Mezzanine, the Tenant
shall not erect, install, display, inscribe, paint or affix any sign, lettering or advertising
medium to, upon or above the exterior of the Premises except as allowed in this Lease.
25. To the extent that any portion of the Premises is located on the Mezzanine, the Tenant
shall not install any exterior lighting or plumbing fixtures, shades or awning or any exterior
decorations or painting or any radio or television antennae, loudspeakers, sound amplifiers or
similar devices on the exterior walls of the Premises.
EXHIBIT D
26. The Tenant shall not use any audible advertising medium that shall be a nuisance to the
Landlord or other tenants of the Development, such as loudspeakers, phonographs or radio
broadcasts, in a manner to be heard outside the Premises.
27. The Tenant shall not cause, suffer or permit odors to emanate or be dispelled from the
Premises, and upon written direction of the Landlord shall forthwith, at the Tenant’s expense,
remedy any situation resulting in a breach of this provision.
28. The Tenant shall endeavor to not cause unnecessary labor by reason of carelessness and
indifference to the preservation of good order and cleanliness in its Premises and in the Common
Areas and the Building.
29. The work of the Landlord’s janitors or cleaning personnel shall not be hindered by the
Tenant after 5:30 P.M. Such work may be done at any time when offices are vacant. The windows,
doors and fixtures may be cleaned at any time.
30. The Tenant shall provide adequate waste and rubbish receptacles, cabinets, bookcases, map
cases, etc. necessary to prevent unreasonable hardship to the Landlord in discharging its
obligation regarding cleaning service. All garbage and refuse of the Tenant shall be kept inside
the Premises in customary containers. The Tenant shall empty all glasses, cups and other
containers holding liquids.
31. In the event the Tenant must dispose of crates, boxes, etc., which will not fit into
office waste paper baskets, it will be the responsibility of the Tenant with the Landlord’s
assistance to dispose of same. In no event shall the Tenant set such items in the public hallways
or other areas of Building or parking facilities, except for the Tenant’s own Premises, for
disposal.
32. The Tenant shall not cause, permit or suffer any machines selling merchandise, rendering
services, or providing entertainment to be present on the Premises unless consented to in advance
in writing by the Landlord [food and beverage vending machines within the Premises excluded (except
in the elevator lobbies)].
33. Except as permitted in the Lease, the Tenant shall not solicit business, distribute any
handbills or other advertising material in the Development (other than within the Premises) without
the prior written approval of the Landlord, such consent not to be unreasonably withheld,
conditioned or delayed.
34. Subject to Section 5.02 of the Lease, no lock shall be placed on any access door of the
Premises without the prior written consent of the Landlord, such consent not to be unreasonably
withheld, conditioned or delayed. Subject to Section 5.02 of the Lease, the Landlord may, at its
option, require that any or all such locks be a part of the Landlord’s master keying system. Such
cost will be billed to the Tenant.
EXHIBIT D
35. Except as set forth in the Lease, the Landlord reserves the right to close the Common
Areas of the Building at 6:00 P.M. and prior to 7:00 A.M., Monday through Friday, at 1:00 P.M and
prior to 7:00 A.M. on Saturday, and all day on Sunday and on Holidays (except on the day after
Thanksgiving). No persons will be allowed into the Development after normal business hours without
proper identification and a key (or access card) to their Premises. The Landlord may institute a
Development wide photo identification security system applicable to all tenants of the Development
in which case photo identification cards may be obtained from the Landlord’s security company,
including a nominal charge for replacement of lost, stolen or worn cards. The Landlord shall in no
case be liable in damages for the exclusion of any person from the Building based on such person’s
failure to present proper identification and a key (or access card) to the Premises. In case of
invasion, insurrection, riot, public excitement, or other commotion, the Landlord reserves the
right to temporarily restrict access to the Building and to take other measures reasonably deemed
by the Landlord appropriate for the safety of the tenants, their employees and guests and for the
protection of the Building and property located therein.
36. The Tenant shall, upon the termination of the Lease, surrender to the Landlord all keys
and security access cards to the Premises.
37. Requests for after-hours HVAC should be submitted to Building management in advance to
allow securing and scheduling of the operating engineers, provided that requests to the Landlord by
(a) 12:00 P.M. on Friday for after-hours air conditioning on the following Saturday, Sunday, or
Monday Holiday, and (b) 3:00 P.M. Monday through Thursday for after-hours air conditioning on the
following business day or Friday Holiday shall be sufficient. After hours HVAC shall be billed to
the Tenant in accordance with the terms of the Lease.
38. The Tenant recognizes that the Landlord maintains an ongoing fire and life safety program
for the Development and the Tenant shall cooperate with the Landlord in the administration of these
programs, including any required instruction for the Building occupants.
39. Any Tenant requirements for contracted guard service will be coordinated through the
Landlord’s Property Manager who may at the Landlord’s option furnish guard service and xxxx the
Tenant cost plus an additional ten percent (10%) administrative fee.
40. Unless caused by the gross negligence or willful misconduct of the Landlord or its
employees, agents, and/or contractors, the Landlord will not be responsible for lost or stolen
property, equipment, money, or any article taken from the Premises or Building regardless of how or
when the loss occurs.
EXHIBIT D
EXHIBIT “E”
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) is
entered into as of February ____, 2011 (the “Effective Date”), between XXXXX FARGO BANK, N.A., a
national banking association (or its successors and/or assigns), as Trustee for the Registered
Holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2006-C1 (the “Mortgagee”) and EVERBANK, a Federal Savings Bank (the “Tenant”).
A. EL-AD FLORIDA LLC, a Florida limited liability company (the “Landlord”), owns the real
property located at 000 Xxxx Xxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (such real property, including
all buildings, improvements, structures and fixtures located thereon, shall be hereinafter referred
to as the “Landlord’s Premises”), as set forth in Exhibit “A” attached hereto and by this reference
made a part hereof.
B. The Mortgagee is the holder of a loan (the “Loan”) to the Landlord, which Loan is secured,
in part, by that certain Second Amended and Restated Mortgage, Assignment of Rents and Leases,
Security Agreement and Fixture Filing dated November 17, 2005, in favor of the Mortgagee (as
amended, increased, renewed, extended, spread, consolidated, severed, restated or otherwise changed
from time to time, the “Mortgage”), recorded on November 18, 2005 as Doc #2005426084 in Official
Records Book 12897, beginning at page 1315 of the public records of Xxxxx County, Florida.
C. Pursuant to that certain Lease, dated as of December 21, 2011 (the “Lease”) (a copy of
which is attached hereto as Exhibit “B”), the Landlord demised to the Tenant a portion of the
Landlord’s Premises as described in the Lease (the “Tenant’s Premises”).
D. The Tenant and the Mortgagee desire to agree upon the relative priorities of their
interests in the Landlord’s Premises and their rights and obligations if certain events occur.
NOW, THEREFORE, for good and sufficient consideration, the receipt and adequacy of which are
hereby acknowledged, the Tenant and the Mortgagee agree:
1. DEFINITIONS
The following terms shall have the following meanings for purposes of this Agreement.
1.1. Construction-Related Obligation. A “Construction-Related Obligation” means any
obligation of the Landlord under the Lease to make, pay for or reimburse the Tenant for any
alterations, demolitions or other improvements or construction work at the Landlord’s Premises,
including
EXHIBIT E
the Tenant’s Premises, but excluding: (a) any reconstruction or repair following fire,
casualty or condemnation to the extent, but only to the extent, of insurance proceeds or
condemnation awards actually received by Mortgagee after the deduction of all costs and expenses
incurred in obtaining such proceeds or awards, and subject to the terms of the Mortgage and other
Loan documents with respect to the disposition of such proceeds or awards and (b) day-to-day
maintenance and repair obligations of the Landlord under the Lease either (i) arising from and
after the date of attornment in connection with a Foreclosure Event, or (ii) for which Tenant has a
Retained Offset Right.
1.2. Foreclosure Event. A “Foreclosure Event” means (i) foreclosure (judicial or
non-judicial) of the Mortgage, (ii) any other exercise by the Mortgagee of rights and remedies
(whether under the Mortgage or under applicable law, including bankruptcy law) as holder of the
Loan and/or the Mortgage, as a result of which the Successor Landlord becomes owner of the
Landlord’s Premises or (iii) delivery by the Landlord to the Mortgagee (or its designee or nominee)
of a deed or other conveyance of the Landlord’s interest in the Landlord’s Premises in lieu of any
of the foregoing.
1.3. Former Landlord. A “Former Landlord” means the Landlord and any other party that was
landlord under the Lease at any time before the occurrence of any Foreclosure Event and attornment
under this Agreement.
1.4. Offset Right. Subject to Sections 4.4 and 4.5, an “Offset Right” means any right of the
Tenant to any offset, defense (other than one arising from actual payment and/or performance, which
payment and/or performance would bind a Successor landlord pursuant to this Agreement), claim,
counterclaim, reduction, deductions or abatement against the Tenant’s payment of any Rent or
performance of the Tenant’s other obligations under the Lease, arising (whether under the Lease or
other applicable law except to the extent waived in the Lease) from the Landlord’s breach or
default under the Lease.
1.5. Rent. “Rent” means, collectively, any fixed rent, the Base Rent, the Additional Rent and
all other sums, costs or charges required to be paid to the Landlord by the Tenant under the Lease.
1.6. Retained Offset Right. A “Retained Offset Right” means any Offset Right provided for in
the Lease that arises out of (a) subject to Sections 4.4 and 4.5, a breach or default by Landlord
under the Lease that is of a continuing nature and that continues after the date of attornment and
violates Successor Landlord’s obligations as landlord under the Lease (as modified by this
Agreement) (a “Continuing Landlord Breach”), (b) Landlord’s obligations to complete the
Total Work (as defined in the Work Letter attached to the Lease as Exhibit “C”) but subject to
funding obligations of Tenant for amounts not included in the Tenant Improvement Allowance as to
any portion thereof payable by Tenant (the “Landlord TI/BI Obligations”) or (c) any
obligation of Landlord to pay amounts pursuant to Addendum 2 of the Lease as a condition of the
removal of the current building roof top AT&T signage (the “Landlord Signage Obligations”),
provided that in each case of (a), (b) or (c), Mortgagee was provided with notice of and
opportunity to cure such breach or default as required by Paragraph 6 hereof. Notwithstanding the
foregoing, Retained Offset Rights shall not include any claim for damages of any kind whatsoever
arising as the result of any breach or default by Former Landlord that occurred prior to the date
of attornment and that is not continuing in nature after the date of attornment.
1.7. Successor Landlord. A “Successor Landlord” means any party that becomes
EXHIBIT E
owner of the Landlord’s Premises as the result of a Foreclosure Event.
1.8. Termination Right. A “Termination Right” means any right of the Tenant to cancel or
terminate the Lease or to claim a partial or total eviction, arising (whether under the Lease or
under applicable law) from the Landlord’s breach or default under the Lease.
2. SUBORDINATION.
The Lease shall be, and shall at all times remain, subject and subordinate to the Mortgage,
the lien imposed by the Mortgage and all advances made under the Mortgage, subject to the terms and
conditions of this Agreement.
3. NON-DISTURBANCE; RECOGNITION AND ATTORNMENT
3.1. No Exercise of Mortgage Remedies Against Tenant. Provided that the Tenant shall not then
be in default under the Lease after written notice to the Tenant (if, and only if, such written
notice is required under the Lease) and beyond any applicable grace or cure periods provided for
under the Lease with respect to such default, the Mortgagee shall not name or join the Tenant as a
defendant in any exercise of the Mortgagee’s rights and remedies arising upon a default under the
Mortgage, unless applicable law requires the Tenant to be made a party thereto as a condition to
proceeding against the Landlord or prosecuting such rights and remedies. In the latter case, the
Mortgagee may join the Tenant as a defendant in such action only for such purpose and not to
terminate the Lease or otherwise adversely affect the Tenant’s rights under the Lease or this
Agreement in such action.
3.2. Non-Disturbance and Attornment. When the Successor Landlord takes title to the
Landlord’s Premises (i) the Successor Landlord shall not terminate or disturb the Tenant’s
possession of the Tenant’s Premises under the Lease, except in accordance with the terms of the
Lease, (ii) the Successor Landlord shall be bound to the Tenant under all of the terms, conditions,
obligations, covenants, and liabilities of the Landlord under the Lease (except as expressly
provided in this Agreement), (iii) the Tenant shall recognize and attorn to the Successor Landlord
as the Tenant’s direct landlord under the Lease as expressly modified by this Agreement and,
subject to the terms and conditions of the Lease (as expressly modified by this Agreement), (a)
continue to pay all Rent under the Lease, and (b) otherwise observe and perform the covenants,
terms and conditions of the Lease and (iv) the Lease shall continue in full force and effect as a
direct lease in accordance with its terms (except as expressly provided in this Agreement) between
the Successor Landlord and the Tenant. Except as otherwise provided in this Agreement, in the
event of a Foreclosure Event, the Successor Landlord shall assume or shall be deemed to have
assumed the Lease and all of the obligations, liabilities, and duties of Landlord under the Lease
(as modified by this Agreement) from the date of attornment, and further provided that the
Successor Landlord shall remain responsible for the completion of the Tenant Improvements (as
defined in the Work Letter), the Initial Premises Building Improvements (as defined in the Work
Letter), the Mezzanine Improvements (as defined in the Work Letter) and Landlord Signage
Obligations, in accordance with the requirements of the Work Letter, in each case, however, only to
the extent not completed on or before the Foreclosure Event and subject to funding obligations of
Tenant for amounts not included in the Tenant Improvement Allowance as to any portion thereof
payable by Tenant, provided, as to the Tenant Improvements the TI Construction Contract (as
defined in the Work Letter), and/or as to the Initial Premises Building Improvements, the BI
Construction Contract (as defined in the Work Letter), as
EXHIBIT E
applicable, has not been assigned to the Tenant.
3.3. Further Documentation. The provisions of this Agreement shall be effective and
self-operative without any need for the Successor Landlord or the Tenant to execute any further
documents. The Tenant and the Successor Landlord shall, however, confirm the provisions of this
Agreement in writing upon written request by either of them.
4. PROTECTION OF SUCCESSOR LANDLORD.
Notwithstanding anything to the contrary in the Lease, the Successor Landlord shall not be
liable for or bound by any of the following matters:
4.1. Offset Rights. Any Offset Right, other than a Retained Offset Right, that the Tenant may
have against any Former Landlord relating to any event, act, omission or occurrence before the date
of attornment, including any claim for damages of any kind whatsoever as the result of any breach
by the Former Landlord that occurred before the date of attornment, unless the Mortgagee was (i)
provided (concurrently with delivery to the Former Landlord) with a copy of any notice to the
Former Landlord of such breach required under the Lease, and (ii) afforded an opportunity to cure
such breach in the manner set forth in Paragraph 6 below. The foregoing shall not limit Tenant’s
right to exercise against Successor Landlord (a) any Offset Right available to Tenant because of
events occurring after the date of attornment, or (b) any Retained Offset Right (including, without
limitation, as a result of a Continuing Landlord Breach).
4.2. Claims Against Former Landlord. Except as set forth in Paragraph 4.1 above, any act or
omission of the Former Landlord, or any breach or default by the Former Landlord; provided,
however, such exclusion from liability shall not include any Continuing Landlord breach for which
Successor Landlord receives notice after the date of attornment and an opportunity to cure such
breach in the manner provided in the Lease, not including any liability of Landlord that is
personal to Landlord, or has been reduced to the payment of money.
4.3. Construction-Related Obligations. Unless otherwise expressly agreed to be bound thereby
in writing by the Mortgagee, any covenant to undertake or complete any construction of the
Landlord’s Premises, the Tenant’s Premises or any portion thereof, including, without limitation,
any Construction-Related Obligations (other than the Tenant Improvements, the Initial Premises
Building Improvements, Mezzanine Improvements and Landlord Signage Obligations as provided herein).
4.4. Prepayments. Any payment of any Rent that the Tenant may have made to the Former
Landlord more than thirty (30) days before the date such Rent was first due and payable under the
Lease.
4.5. Security Deposit. Any obligation with respect to any security deposited with the Former
Landlord, unless such security was actually delivered to the Mortgagee.
4.6. Lease Modification. Any amendment, modification or supplement to the Lease made without
the Mortgagee’s written consent thereto, such consent shall not be unreasonably withheld,
EXHIBIT E
conditioned or delayed (except in the case of any amendment, modification or supplement to the
Lease that reduces the obligations of the Tenant to pay any Rent under the Lease, waives any
termination fee or portion thereof, or increases monetary obligations of the Landlord thereunder,
in which case Mortgagee’s consent may be granted or withheld in Mortgagee’s sole and absolute
discretion); provided, however, that no Mortgagee consent will be required to effectuate any
termination options, contraction options, rent reduction provisions, or expansion rights that exist
in the Lease as attached hereto as Exhibit “B” (provided, in each such case, if any such right is
conditioned on prior notice to Mortgagee and/or prior opportunity to cure, such notice and/or
opportunity was provided by Tenant in accordance with the terms of the Lease).
4.7. Leasing Commissions. Any obligation of Landlord under the Lease to pay leasing
commissions, including without limitation, pursuant to Section 14.08 of the Lease incurred or
agreed to be paid by any Former Landlord (except to the extent of reserves held by Successor
Landlord, that are specifically dedicated to the payment of specific commissions, and further
subject to the terms of the Mortgage and other Loan documents with respect to the disposition of
such reserves).
5. EXCLUSION OF SUCCESSOR LANDLORD.
Notwithstanding anything to the contrary in this Agreement or the Lease, upon any attornment
pursuant to this Agreement, the Lease shall be deemed to have been automatically amended to provide
that the Successor Landlord shall have assumed or shall be deemed to have assumed the Lease and all
of the obligations, liabilities, and duties of Landlord under the Lease from the date of
attornment, except as otherwise provided in this Agreement; provided that Successor Landlord’s
personal responsibility for obligations and liability under the Lease shall never extend beyond the
Successor Landlord’s interest, if any, in the Landlord’s Premises from time to time, net insurance
and condemnation proceeds actually received from the Landlord’s Premises by such Successor
Landlord, the Successor Landlord’s interest in the Lease and the net proceeds actually received by
such Successor Landlord from any sale or other disposition of the Landlord’s Premises by such
Successor Landlord, in each case, subject to the terms of the Mortgage and other Loan documents
with respect to the Mortgagee’s rights of disposition of such funds and less all costs and expenses
of collection thereof, costs of sale and transaction, including without limitation attorneys’ fees,
commissions, costs of collection and other third-party costs actually incurred therewith
(collectively, the “Successor Landlord’s Interest”). The Tenant shall (a) look exclusively to the
Successor Landlord’s Interest and/or (b) utilize any Offset Rights available to Tenant under the
Lease (as modified by this Agreement) in connection with any Landlord breach or default occurring
after the date of attornment or Tenant’s Retained Offset Rights for payment or discharge of any
obligations of the Successor Landlord under the Lease as modified by this Agreement and the Former
Landlord shall have no obligation to the Tenant related to or arising from the attornment of the
Tenant or otherwise thereafter under the Lease (provided nothing herein shall amend the terms of
the Loan Documents as between Landlord and Mortgagee).
6. MORTGAGEE’S RIGHT TO CURE. Notwithstanding anything to the contrary in the
Lease, prior to a Foreclosure Event, the Tenant shall provide the Mortgagee with notice of any
breach or default by the Landlord under the Lease at the same time such notice is delivered to the
Landlord (the “Default Notice”) and, thereafter, the opportunity to cure such breach or default for
a period of time equal to the Mortgagee Cure Period, or if such default cannot be cured within such
Mortgagee Cure Period, the Mortgagee shall have such additional time to cure the default or breach
as may be required under the circumstances provided that such cure is commenced within said period
and thereafter diligently pursued to completion. The Mortgagee shall have no obligation to cure
any breach or default by the Landlord,
EXHIBIT E
except to the extent that the Mortgagee agrees or undertakes
otherwise in writing, but if the Mortgagee
elects to do so, the Tenant agrees to accept cure by the Mortgagee as that of the Landlord
under the Lease and to not exercise any right or remedy under the Lease for a Landlord default in
the event that the Mortgagee timely cures such breach or default. Any performance rendered by the
Mortgagee on the Landlord’s behalf is without prejudice to the Mortgagee’s rights against the
Landlord under the Mortgage or any other documents executed by the Landlord in favor of the
Mortgagee in connection with the Loan. As used in this Paragraph 6, the term “Mortgagee Cure
Period” shall mean any cure period available to the Landlord under the Lease for any breach or
default of the Landlord under the Lease plus (i) an additional thirty (30) days for non-monetary
defaults or (ii) an additional ten (10) days for monetary defaults.
7. RENT PAYMENT NOTICES.
From and after the Tenant’s receipt of written notice from the Mortgagee (a “Rent Payment
Notice”), the Tenant shall pay all Rent to the Mortgagee or as the Mortgagee shall direct in
writing, until such time as the Mortgagee directs otherwise in writing. The Tenant shall comply
with any Rent Payment Notice, notwithstanding any contrary instruction, direction or assertion from
the Landlord. The Mortgagee’s delivery to the Tenant of a Rent Payment Notice, or the Tenant’s
compliance therewith, shall not be deemed to (i) cause the Mortgagee to succeed to or to
assume any obligations or responsibilities as the Landlord under the Lease, all of which shall
continue to be performed and discharged solely by the Landlord in accordance with the provisions of
the Lease unless and until any attornment has occurred pursuant to this Agreement; or (ii) relieve
the Landlord of any obligations under the Lease. Notwithstanding any provision contained in the
Lease to the contrary, delivery to the Tenant of any Rent Payment Notice shall be conclusive
evidence of the right of the Mortgagee to receive such Rent in accordance with the terms and
conditions of the Lease and payment of such Rent by the Tenant to the Mortgagee pursuant to such
Rent Payment Notice shall constitute performance in full of the Tenant’s obligation under the Lease
to pay such Rent to the Landlord. If and to the extent that the Lease or any provision of law
shall entitle the Tenant to notice of any mortgage, the Tenant acknowledges and agrees that this
Agreement shall constitute such notice to the Tenant of the existence of the Mortgage. The Tenant
acknowledges that it has notice that the Lease and all Rent and all other sums due thereunder have
been assigned to the Mortgagee as part of the security for the Loan.
8. REPRESENTATIONS AND WARRANTIES OF THE TENANT.
The Tenant hereby represents and warrants to the Mortgagee and to any Successor Landlord that
as of the Effective Date:
8.1. Lease. The Lease is in full force and effect, has not been modified and constitutes the
entire agreement between the Landlord and the Tenant relating to the Tenant’s Premises. The Tenant
has no interest in the Landlord’s Premises except pursuant to the Lease. A true, complete and
accurate copy of the Lease, including any and all amendments, is attached hereto as Exhibit “B”.
As of the date hereof, there are no agreements other than the Lease in existence or contemplated
between the Landlord and the Tenant, relating to the Landlord’s Premises or the Tenant’s Premises
or with respect to any other matter related to the Tenant’s occupancy of the Tenant’s Premises.
The execution and delivery of this Agreement by Mortgagee discharges any obligations of the
Mortgagee under the Lease to enter into a non-disturbance agreement with the Tenant.
EXHIBIT E
8.2. Rent. The Tenant has not paid any Rent that is first due and payable under the Lease
after the Effective Date.
9. MISCELLANEOUS.
9.1. Notices. All notices or other communications required or permitted under this Agreement
shall be in writing and given by certified mail (return receipt requested) or by nationally
recognized overnight courier service that regularly maintains records of items and shall be
delivered to the Mortgagee or the Tenant (as applicable) at the addresses set forth below. Notices
shall be effective upon receipt.
| If to Tenant: | EverBank | |||
| Attn: Xxxxxx Xxxxxxxxx | ||||
| Vice President | ||||
| 0000 Xxxxxxx Xxx | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 000-000-0000 | ||||
| E-mail: xxxxxx.xxxxxxxxx@xxxxxxxx.xxx | ||||
| With a Copy to: | Xxxxxx Xxxxx | |||
| Senior Vice President & General Counsel | ||||
| EverBank | ||||
| 000 Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Telephone:000-000-0000 | ||||
| Facsimile: 000-000-0000 | ||||
| E-mail: Xxxxxx.Xxxxx@XxxxXxxx.xxx | ||||
| If to Mortgagee | c/o CWCapital Asset Management LLC | |||
| 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxx | ||||
| Xxxxxxxx, Xxxxxxxx 00000 | ||||
| Attn: Xxx Xxxxx | ||||
| Telephone: 000.000.0000 | ||||
| Facsimile: 202.715.9698 | ||||
| E-mail: xxxxxx@xxxxxxxxx.xxx |
EXHIBIT E
| With a copy to: | Weil, Gotshal & Xxxxxx, LLP | |||
| 000 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attn: Xxxxxx Xxxxx, Esq. | ||||
| Telephone: 000.000.0000 | ||||
| Facsimile: 212.310.8007 | ||||
| E-mail: xxxxxx.xxxxx@xxxx.xxx | ||||
| If to Landlord: | El-Ad Florida, LLC | |||
| 0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxxx Xxxxxx | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 000-000-0000 | ||||
| E-mail: xxxxxxx@xxxxxxxxxxxx.xxx | ||||
| With a copy to: | GrayRobinson, P.A. | |||
| 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxx X. Xxxxx | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 904-598-9109 | ||||
| E-mail: xxxxx.xxxxx@xxxx-xxxxxxxx.xxx |
9.2. Successors and Assigns. This Agreement shall bind and benefit the parties, their
successors and assigns, any Successor Landlord and its successors and assigns. If the Mortgagee
assigns the Mortgage, upon delivery to the Tenant of written notice thereof all liability of the
assignor shall terminate, so long as the assignee assumes, in writing, the obligations and
covenants of the Mortgagee hereunder without modification.
9.3. Entire Agreement. This Agreement constitutes the entire agreement between the Mortgagee
and the Tenant regarding the subordination of the Lease to the Mortgage and the rights and
obligations of the Tenant and the Mortgagee as to the subject matter of this Agreement and
supersedes and replaces any and all prior discussions, representations, communications and
agreements (oral or written).
9.4. Interaction with Lease; Lease Amendment. If this Agreement conflicts with the
Lease, then this Agreement shall govern as between the parties and any Successor Landlord,
including
EXHIBIT E
upon any attornment pursuant to this Agreement. The Lease may not be amended, modified,
or terminated (except as provided in the Lease) without the prior written consent of the Mortgagee,
such consent not to be unreasonably withheld, conditioned or delayed (except in the case of any
amendment, modification or termination of the Lease that reduces the obligations of the Tenant to
pay any Rent under the Lease, waives any termination fee or portion thereof, or increases monetary
obligations of the Landlord thereunder, in which case Mortgagee’s consent may be granted or
withheld in Mortgagee’s sole and absolute discretion); provided, however, that no Mortgagee consent
will be required to effectuate any termination options, contraction options, rent reduction
provisions, or expansion rights that exist in the Lease as attached hereto as Exhibit “B”
(provided, in each such case, if any such right is conditioned on prior notice to Mortgagee and/or
prior opportunity to cure, such notice and/or opportunity was provided by Tenant in accordance with
the terms of the Lease). No such amendment, modification, or termination (except as provided in
the Lease), of the Lease shall be effective against the Mortgagee, unless consented to in writing
by the Mortgagee, such consent not to be unreasonably withheld, conditioned or delayed (except in
the case of any amendment, modification or termination of the Lease that reduces the obligations of
the Tenant to pay any Rent under the Lease, waives any termination fee or portion thereof, or
increases monetary obligations of the Landlord thereunder, in which case Mortgagee’s consent may be
granted or withheld in Mortgagee’s sole and absolute discretion); provided, however, that no
Mortgagee consent will be required to effectuate any termination options, contraction options, rent
reduction provisions, or expansion rights that exist in the Lease as attached hereto as Exhibit “B”
(provided, in each such case, if any such right is conditioned on prior notice to Mortgagee and/or
prior opportunity to cure, such notice and/or opportunity was provided by Tenant in accordance with
the terms of the Lease).
9.5. Mortgagee’s Rights and Obligations. Except as expressly provided for in this Agreement,
the Mortgagee shall have no obligations to the Tenant with respect to the Lease. If an attornment
occurs pursuant to this Agreement (to a Successor Landlord other than the Mortgagee), all rights
and obligations of the Mortgagee under this Agreement shall terminate from and after such date of
attornment, without thereby affecting in any way the rights and obligations of the Successor
Landlord provided for in this Agreement; provided, however, that nothing contained in the foregoing
shall in any way restrict or prevent the Mortgagee from assigning any or all of its rights under
this Agreement to any Successor Landlord and such assignment rights shall not be affected by any
termination described above.
9.6. Interpretation; Governing Law. The interpretation, validity and enforcement of this
Agreement shall be governed by and construed under the internal laws of the State of Florida,
excluding its principles of conflict of laws.
9.7. Amendments. This Agreement may be amended, discharged or terminated, or any of its
provisions waived, only by a written instrument executed by both parties hereto.
9.8. Execution. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which together shall constitute one and the-same instrument.
Any facsimile or portable document format (PDF) copy of a counterpart of a party shall constitute
an execution copy of this Agreement with respect to such party and shall be enforceable against
such party to the same extent as an original counterpart from such party.
9.9. Due Authorization. The Tenant and the Mortgagee each represents to the other that it has
full authority to enter into this Agreement, which has been duly authorized by all necessary actions.
EXHIBIT E
9.10. Severability. In the event any term, covenant or condition of this Agreement or the
application thereof to any person or circumstances shall to any extent be deemed invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and every other term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
9.11. No Representations by Mortgagee. Except as expressly set forth herein, the Mortgagee or
the Mortgagee’s agents have made no representations, warranties or promises with respect to the
Landlord’s Premises or the Tenant’s Premises.
9.12. Certain Options Not Binding Upon Mortgagee. Any options or rights contained in the
Lease to acquire title to the Landlord’s Premises or any portion thereof (other than the leasehold
interest held by the Tenant under the Lease as of the date hereof), including any right of first
refusal, right of first offer, or similar provisions, shall not apply to a foreclosure sale of the
Landlord’s Premises by the Mortgagee pursuant to its rights under the Mortgage or any conveyance in
lieu of foreclosure, and shall be extinguished by any such foreclosure of the Mortgage or
conveyance in lieu thereof, whether or not expressly included in any such foreclosure action, or
any such conveyance in lieu of foreclosure. Any existing right of the Tenant to cancel the Lease
in order to move to other property to be leased or purchased from the Landlord and any right of the
Tenant to inducements to be provided by the Landlord but not set forth in the Lease shall be
extinguished by any foreclosure of the Mortgage or conveyance in lieu thereof, whether or not
expressly included in any such foreclosure action, or any conveyance in lieu of foreclosure.
9.13. Exculpation. The Mortgagee shall not be directly or indirectly liable or responsible
for any loss, claim, cause of action, liability, indebtedness, damage or injury of any kind or
character to any person or property arising from any activity on, or occupancy or use of, all or
any portion of the Tenant’s Premises prior to a Foreclosure Event and the date of attornment, for
any loss, claim, cause of action, liability, indebtedness, damage or injury caused by, or arising
from (a) any defect in any building, structure, grading, fill, landscaping or other improvements
thereon or in any on-site or off-site improvement or other facility therein, thereon or relating
thereto, irrespective of whether or not such defect was disclosed in any of the reports or other
documents received by the Mortgagee; (b) any act or omission of the Landlord, or the Tenant, any
affiliate of the Landlord or the Tenant, or any of the Landlord’s and the Tenant’s agents,
employees, independent contractors, licensees or invitees (unless pursuant to a Landlord default
which is continuing beyond the occurrence of any Foreclosure Event); (c) any accident at the
Tenant’s Premises or the Landlord’s Premises; (d) the failure of the Landlord or the Tenant, or of
any of the Landlord’s or the Tenant’s licensees, employees, invitees, agents, independent
contractors or other representatives to maintain all or any portion of the Tenant’s Premises in a
safe condition (unless pursuant to a Landlord default which is continuing beyond the occurrence of
any Foreclosure Event); or (e) any nuisance made or suffered on any part of the Tenant’s Premises;
except to the extent that any of the circumstances described in clauses (a), (c) or (e) above are
caused by the gross negligence or willful misconduct of the Mortgagee or its officers, contractors,
employees or agents (provided they are acting in their capacity as such) occurring after the
Mortgagee enters onto or has possession of the Landlord’s Premises. Notwithstanding anything to
the contrary contained herein, in no event shall any officers, directors, shareholders, agents,
servants or employees of the Mortgagee have any personal liability to the Tenant.
EXHIBIT E
9.14. No Lien on Tenant Property. Neither the Mortgage nor any other instrument executed in
connection therewith shall cover, encumber, or be construed as subjecting in any manner to the lien
thereof, any Tenant’s Property (as defined in the Lease).
9.15. Lender Consent. Lender consents to the execution and delivery of the Lease in the form
attached hereto as Exhibit “B”.
9.16. JURY TRIAL WAIVER. TO THE EXTENT PERMITTED BY LAW, EACH OF THE MORTGAGEE AND TENANT
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING OR COUNTERCLAIM PERTAINING TO OR ARISING OUT OF THIS AGREEMENT (WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE).
[SIGNATURES ON PAGE FOLLOWING]
EXHIBIT E
IN WITNESS WHEREOF, this Agreement has been duly executed by the Mortgagee and the Tenant as
of the Effective Date.
| Signed, sealed and delivered | XXXXX FARGO BANK, N.A. | |||||||||||
| In the presence of: | a national banking association (or its successors and/or assigns), as Trustee for the Registered Holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2006-C1 |
|||||||||||
| By: | CWCAPITAL ASSET MANAGEMENT | |||||||||||
Print name: |
LLC, a Maryland limited liability company, | |||||||||||
| solely in its capacity as Special Servicer | ||||||||||||
| By: | ||||||||||||
Print name: |
||||||||||||
| Its: | ||||||||||||
| Date of Execution: | ||||||||||||
| “Mortgagee” | ||||||||||||
| EVERBANK, | ||||||||||||
| Print name: | a Federal savings bank | |||||||||||
| By: | ||||||||||||
Print name: |
||||||||||||
| Its: | ||||||||||||
| Date of Execution: | ||||||||||||
| “Tenant” | ||||||||||||
EXHIBIT E
LANDLORD CONSENT
The Landlord consents to, acknowledges and agrees to be bound by the terms of the foregoing
Agreement, which was entered into at the Landlord’s request. The foregoing Agreement shall not
alter, waive or diminish any of the Landlord’s obligations under the Mortgage or the Lease. The
foregoing Agreement discharges any obligations of the Mortgagee under the Mortgage and related Loan
documents to enter into a non-disturbance agreement with the Tenant.
The Landlord irrevocably directs the Tenant to comply with any Rent Payment Notice,
notwithstanding any contrary direction, instructions, or assertion by the Landlord. The Tenant
shall be entitled to rely on any Rent Payment Notice. The Tenant shall be under no duty to
controvert or challenge any Rent Payment Notice. The Tenant’s compliance with a Rent Payment
Notice shall not be deemed to violate the Lease.
The Landlord hereby represents and warrants to the Mortgagee that, as of the date hereof,
there are no agreements other than the Lease in existence or contemplated between the Landlord and
the Tenant, relating to the Landlord’s Premises or the Tenant’s Premises or with respect to any
other matter related to the Tenant’s occupancy of the Tenant’s Premises. The Lease may not be
amended, modified, or terminated (except as provided in the Lease) without the prior written
consent of the Mortgagee, such consent not to be unreasonably withheld, conditioned or delayed
(except in the case of any amendment, modification or termination of the Lease that reduces the
obligations of the Tenant to pay any Rent under the Lease, waives any termination fee or portion
thereof, or increases monetary obligations of the Landlord thereunder, in which case Mortgagee’s
consent may be granted or withheld in Mortgagee’s sole and absolute discretion); provided, however,
that no Mortgagee consent will be required to effectuate any termination options, contraction
options, rent reduction provisions, or expansion rights that exist in the Lease as attached hereto
as Exhibit “B” (provided, in each such case, if any such right is conditioned on prior notice to
Mortgagee and/or prior opportunity to cure, such notice and/or opportunity was provided by Tenant
in accordance with the terms of the Lease). No such amendment, modification, or termination
(except as provided in the Lease), of the Lease shall be effective against the Mortgagee, unless
consented to in writing by the Mortgagee, such consent not to be unreasonably withheld, conditioned
or delayed (except in the case of any amendment, modification or termination of the Lease that
reduces the obligations of the Tenant to pay any Rent under the Lease, waives any termination fee
or portion thereof, or increases monetary obligations of the Landlord thereunder, in which case
Mortgagee’s consent may be granted or withheld in Mortgagee’s sole and absolute discretion);
provided, however, that no Mortgagee consent will be required to effectuate any termination
options, contraction options, rent reduction provisions, or expansion rights that exist in the
Lease as attached hereto as Exhibit “B” (provided, in each such case, if any such right is
conditioned on prior notice to Mortgagee and/or prior opportunity to cure, such notice and/or
opportunity was provided by Tenant in accordance with the terms of the Lease).
Any amendment or modification of the foregoing Agreement shall not be binding upon the
Landlord unless the Landlord shall have consented in writing to any such modification or amendment,
which consent shall not be unreasonably withheld, conditioned or delayed.
EXHIBIT E
TO THE EXTENT PERMITTED BY LAW, THE LANDLORD HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM PERTAINING TO OR ARISING OUT
OF THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE).
| EL-AD FLORIDA LLC, | ||||||||||||
| Print name: | a Florida limited liability company | |||||||||||
| By: | EL-AD GROUP FLORIDA CORP., a Florida | |||||||||||
| Print name: | corporation, Its Managing Member | |||||||||||
| By: | ||||||||||||
| By: | ||||||||||||
| Date of Execution: | ||||||||||||
| “Landlord” | ||||||||||||
EXHIBIT E
EXHIBIT “A”
LEGAL DESCRIPTION OF DEVELOPMENT
Parcel 1 (Building)
All of Block 46, Xxxx’x Map of Jacksonville, Xxxxx County, Florida, bounded on the North by Forsyth
Street, on the West by Pearl Street, on the South by Bay Street and on the East by Xxxxx Street.
Also described as:
Block 46, Xxxx’x Map of Jacksonville, according to the former Public Records of Jacksonville, Xxxxx
County, Florida, being more particularly described as follows:
For Point of Beginning, commence at the Southwest corner of said Block 46, Harts Map of
Jacksonville, said point being the Point of Intersection of the Northerly right-of-way line of Bay
Street with the Easterly right-of-way line of Pearl Street as said right-of-ways are established
and accepted by the City of Jacksonville, and run North 14°52’24” East along said Easterly
right-of-way line of Pearl Street, a distance of 209.69 feet to its Point of Intersection with the
Southerly right-of-way line of Forsyth Street; run thence South 75°26’06” East along last said
right-of-way line, a distance of 317.28 feet to its Point of Intersection with the Westerly
right-of-way line of Xxxxx Street; run thence South 14°48’09” West along last said right-of-way
line, a distance of 210.62 feet to its Point of Intersection with aforesaid Northerly right-of-way
line of Bay Street; run thence North 75°16’21” West along said right-of-way line, a distance of
317.52 feet to the Point of Beginning.
Parcel 2 (Building Parking Garage)
All of Xxxx 0, 0, xxx 0, Xxxxx 00, Xxxx’s Map of LaVilla, Jacksonville, Xxxxx County, Florida,
bounded on the East by Clay Street, on the North by Forsyth Street, on the West by Broad Street,
and on the South by Xxxx 0, 0 xxx 0 xx xxxx Xxxxx 97.
Also described as:
Xxxx 0, 0 xxx 0, Xxxxx 00, Xxxx’s Map of LaVilla, according to the former public Records of
Jacksonville, Xxxxx County, Florida, being more particularly described as follows:
For Point of Beginning, commence at the Northwest corner of Xxx 0, Xxxxx 00, Xxxx’x Xxx xx XxXxxxx,
said point being the Point of Intersection of the Easterly right-of-way line of Broad Street with
the Southerly right-of-way line of Forsyth Street as said right-of-ways are established and
accepted by the City of Jacksonville, and run Easterly along said Southerly right-of-way line a
distance of 327.15 feet to its Point of Intersection with the Westerly right-of-way line of Clay
Street; run thence Southerly, along said right-of-way line of Clay Street, making an interior angle
of 76°18’30” to the left from said right-of-way line of Forsyth Street, a distance of 106.10 feet
to the Southeasterly corner of Xxx 0, Xxxxx 00, Xxxxx Xxx xx XxXxxxx; run thence Westerly along the
EXHIBIT E
Southerly boundary of aforementioned Lots 4, 5 and 6, making an interior angle of 103°44’57” to the
left from said right-of-way line of Clay Street, a distance of 327.08 feet to the aforesaid
Easterly right-of-way line of Broad Street; run thence Northerly along said right-of-way line
making an interior angle of 76°20’03” to the left from the Southerly boundary of said Lots 4, 5 and
6, a distance of 106.44 feet to the point of beginning.
EXHIBIT E
EXHIBIT “F”
JANITORIAL SPECIFICATIONS
JANITORIAL SPECIFICATIONS
ALL PROCEDURES WILL BE PERFORMED ACCORDING TO GREEN CLEANING PRACTICES. FREQUENCY OF SERVICES:
Monday through Friday, except Holidays.
| 1. | OFFICE AREAS |
| A. | Nightly Services |
| 1. | Empty and clean all waste receptacles. Remove waste paper and rubbish to the designated area. | ||
| 2. | Dust horizontal surfaces including desks, chairs, files, telephones, picture frames, window xxxxx, etc. Do not rearrange materials on desk. | ||
| 3. | Clean and sanitize drinking fountains, follow with stainless steel cleaner taking care not to leave any oily residue. | ||
| 4. | Spot clean entrance doors and lobby glass. | ||
| 5. | Vacuum all carpet and rugs. Do not pull vacuum cords around comers. | ||
| 6. | Remove all finger marks, smudges, graffiti, etc. from all vertical surfaces. | ||
| 7. | Dust mop and spot clean all non-carpet areas. | ||
| 8. | Sweep internal stairways and vacuum, if carpeted. Dust handrails and vertical surfaces. | ||
| 9. | Secure all lights as soon as possible. | ||
| 10. | Clean and polish all metal door thresholds. | ||
| 11. | Empty large centrally located recycle containers. |
| B. | Periodic Services |
| 1. | Carpet edges should be either swept or vacuumed with appropriate edge cleaning tool — weekly. | ||
| 2. | Dust all low reach areas — chair rung, structural and furniture ledges, baseboards, windowsills, wood paneling — weekly. | ||
| 3. | Wipe clean and polish all bright work — weekly. | ||
| 4. | Replace trash liners daily; — if needed. | ||
| 5. | Dust all high reach areas — monthly. | ||
| 6. | Dust fire extinguisher/fire extinguisher cabinets — monthly. | ||
| 7. | Dry buff all non-carpet floors — when needed. | ||
| 8. | Strip and re-coat floors, at least twice per year. | ||
| 9. | Clean all air vent grills — quarterly. | ||
| 10. | Wax/spray buff non-carpet floors — when needed. | ||
| 11. | Dust blinds — twice per year. |
| 2. | OFFICE KITCHEN AREAS |
| A. | Nightly Services |
| 1. | Empty and clean all waste receptacles. Replace trash liners. | ||
| 2. | Damp mop non-carpet floor or vacuum if carpeted. |
EXHIBIT F
| 3. | With damp or treated cloth wipe all horizontal surfaces. | ||
| 4. | Spot clean spills and splashes on vertical surfaces. | ||
| 5. | Empty all plastic and can recycle containers. | ||
| 6. | Clean break room sinks and coffee pots. |
| B. | Periodic Services |
| 1. | Machine buff non-carpeted floors — when needed to maintain first class appearance. | ||
| 2. | Strip and re-coat floor — twice each year. |
| 3. | RESTROOMS |
| A. | Nightly Services |
| 1. | Empty and clean all waste receptacles. Remove waste paper and rubbish to the designated area. | ||
| 2. | Clean all basins, urinals, and bowls using non-abrasive cleaners to remove stains and clean underside of rim on urinals and bowls. | ||
| 3. | Clean all mirrors, bright work and enameled surfaces. | ||
| 4. | Spot clean all partitions, walls, doors, and outside surfaces of all dispensers and receptacles. | ||
| 5. | Clean flush-o-meters, piping and other metal. Do not leave oily film on any metal finish. | ||
| 6. | Fill toilet tissue, soap, towel, toilet seat liner and sanitary napkin dispensers. | ||
| 7. | Sweep, wet mop with disinfectant and thoroughly rinse floor. Clean all comers and edges. Do not leave standing water on the floor. |
| B. | Periodic Services |
| 1. | Dust top of all partitions — weekly. | ||
| 2. | De-scale toilet bowls and urinals — weekly. | ||
| 3. | Dump at least one gallon of water down restroom floor drains & wipe drain grill clean — weekly. | ||
| 4. | Clean air vent grills — monthly. | ||
| 5. | Scrub all floors — at least monthly. | ||
| 6. | Clean light fixtures — when needed. | ||
| 7. | Replace trash liners — daily as needed. | ||
| 8. | Replace sanitary napkin receptacles — daily as needed. | ||
| 9. | Strip & Wax restroom floors at minimum 2x per year or equivalent service at required times to maintain same appearance. |
| 4. | ELEVATORS (PASSENGER AND FREIGHT) |
| A. | Nightly Services |
| 1. | Dust and spot clean interior walls and doors. | ||
| 2. | Spot clean panels. | ||
| 3. | Clean and polish all thresholds. |
EXHIBIT F
| 4. | Vacuum or dust mop and damp mop floors as applicable. | ||
| 5. | Spot clean carpets. |
| B. | Periodic Services |
| 1. | Dust and spot clean ceiling and cove lighting — weekly. | ||
| 2. | Remove debris from cove lighting — weekly. | ||
| 3. | Shampoo carpets — quarterly as needed. |
| 5. | ESCALATORS |
| A. | Nightly Services |
| 1. | Vacuum and polish escalator plate. | ||
| 2. | Damp wipe handrails. | ||
| 3. | Spot clean glass. |
| 6. | FIRST FLOOR LOBBY |
| A. | Nightly Services |
| 1. | Dust mop and damp mop granite floor. | ||
| 2. | Empty and clean trashcans, wipe 1st floor railing, and trashcan containers. | ||
| 3. | Dust planters, windowsills, artwork, and horizontal surfaces. | ||
| 4. | Clean tables, chairs and counter top. | ||
| 5. | Dust and spot clean directory boards. | ||
| 6. | Spot clean all entrance doors. | ||
| 7. | Clean and sanitize drinking fountains. | ||
| 8. | Clean and polish metal door thresholds. |
| B. | Periodic Services |
| 1. | Dust and spot clean table legs — weekly. | ||
| 2. | Scrub and re-finish cafeteria floor — quarterly. | ||
| 3. | Clean all air diffusers and grills — quarterly. | ||
| 4. | Scrub and re-finish floor — twice a year. | ||
| 5. | Wash granite walls — twice per year. |
| 7. | OFFICE BUILDING COMMON AREA |
| A. | Nightly Services |
| 1. | Vacuum all carpeted areas. | ||
| 2. | Spot clean carpet. | ||
| 3. | Spot clean walls and doors. | ||
| 4. | Clean and sanitize drinking fountains, follow with stainless steel cleaner. | ||
| 5. | Spot clean any windows and partition glass. | ||
| 6. | Empty and clean all trashcans. |
| B. | Periodic Services |
| 1. | Shampoo carpet in high traffic areas. |
EXHIBIT F
| 2. | Clean baseboards — weekly. | ||
| 3. | Dust/wash air vent grills — monthly. | ||
| 4. | Dust and remove debris from cove lighting — monthly. |
| 8. | BUILDING STAIRWAYS AND LANDINGS |
| A. | Remove trash and gum — weekly. | ||
| B. | Clean doors and frames — weekly. |
| 9. | FREIGHT ELEVATOR LOBBIES |
| A. | Sweep and wet mop — daily. | ||
| B. | Spot clean walls — daily. |
| 10. | LOADING DOCKS AND SERVICE CORRIDORS |
| A. | Nightly Services |
| 1. | Place all trash in compactor. Pick-up recyclables, place in paper container. | ||
| 2. | Sweep dock and dock area then mop with disinfectant. | ||
| 3. | Spot clean walls and doors. |
| 11. | ENTRANCE AND SIDEWALKS |
| A. | Nightly Services |
| 1. | Check for trash — all areas including planting beds and along curb. | ||
| 2. | Empty trash receptacles and replace liners. | ||
| 3. | Remove gum and cigarette butts. |
| B. | Periodic Services |
| 1. | Hose down sidewalk before 7 A.M. — as needed. | ||
| 2. | Clean trash receptacles — weekly. | ||
| 3. | Clean tree grates — weekly. |
| 12. | GENERAL SERVICES |
| A. | Day Matron/Xxxxxx — Services shall include, but not be limited to, the following: |
| 1. | Police all restrooms at least two (2) times daily. | ||
| 2. | Pick up paper and miscellaneous trash, empty sanitary napkin and trash receptacles. | ||
| 3. | Spot clean mirrors, sinks and counters. | ||
| 4. | Fill dispensers, hand towel, soap, toilet paper, toilet seat covers and air fresheners, where applicable, with materials provided by the Landlord. | ||
| 5. | Report areas requiring spot mopping, faulty fixtures and any other mechanical deficiency to Supervisor promptly. | ||
| 6. | Spot mop and sanitize stairs/floors promptly when made necessary by sickness, spillage or as otherwise necessary to ensure personal safety. |
EXHIBIT F
EXHIBIT “G”
TENANTS — EXCLUSIVE USES AND EXISTING RIGHTS OF FIRST REFUSAL
EXCLUSIVE USES
For All Seasons: Exclusive right for a gift shop in the Building.
RIGHTS OF FIRST REFUSAL
AT&T — ROFO on any full floor in the mid-rise (floors 11-19)
THE ENERGY AUTHORITY — ROFR of 25th and 27th floor
XXXXX — ROFR on all or portion of the 4th floor
ING — ROFR on 28th and 29th floor
XXXXX, XXXXX — ROFR on 10th floor space
EXHIBIT G
EXHIBIT “H”
ESCROW AGREEMENT
ESCROW AGREEMENT
GENERAL ESCROW AGREEMENT
| Re: | Effective Date: | _______, 2011 | ||||
| Landlord: | EL-AD FLORIDA LLC, a Florida limited liability company | |||||
| Tenant: | EVERBANK, a Federal savings bank | |||||
| Property: | The integrated commercial and office development known as the EverBank Center (formerly known as the BellSouth Tower) located at 000 Xxxx Xxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 |
This Escrow Agreement (this “Escrow Agreement”) is entered into as of the Effective Date set
forth above, by and among FIRST AMERICAN TITLE INSURANCE COMPANY, a _______ (“Escrow Agent”), EL-AD FLORIDA
LLC, a Florida limited liability company (“Landlord”), and EVERBANK, a Federal savings bank
(“Tenant”). This Escrow Agreement relates to that certain Lease dated December 21, 2011, by and
between Landlord and Tenant pertaining to portions of the Property (the “Lease”).
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
| 1. | Definitions. Capitalized terms shall have the meanings ascribed to such terms in the Lease unless otherwise defined herein. | ||
| 2. | Term. This Escrow Agreement shall continue in full force and effect in accordance with its terms and conditions until all Escrow Funds (as defined herein below) deposited hereunder with the Escrow Agent are disbursed and the Standby Letter of Credit (as defined herein below) has been returned or drawn upon, all in accordance with the terms of this Escrow Agreement. | ||
| 3. | Landlord’s Initial Cash Deposit Obligation. In accordance with the terms of the Lease, no later than five (5) Business Days after Execution Date of the Lease, the Landlord shall deposit, or cause to be deposited, with the Escrow Agent a sum equal to [**REDACTED**] (the “Cash Deposit”). | ||
| 4. | Landlord Continuing Cash Deposit Obligation. |
| a. | The cost and expense of the Tenant Architect for the work performed on the Tenant’s Plans and Specifications for the Tenant Improvements, but not for the Building Improvements (the “Reimbursable Tenant TI Architect Costs”) shall be paid for by the Landlord from the Tenant Improvement Allowance. The Reimbursable Tenant TI Architect Costs shall be paid to the Tenant Architect by the Escrow Agent in accordance with the procedure and the time periods set forth in this Escrow Agreement for TI Draw Requests, with the Tenant Architect (instead of the General Contractor) submitting the payment request in accordance |
EXHIBIT H
| with the provisions of Section 10 of this Agreement, and if the Tenant has paid the Tenant Architect directly for any of the Reimbursable Tenant TI Architect Costs, and submitted evidence of such payment to Landlord (such as a written confirmation of receipt by the Tenant Architect of such payment), then the payment for any such Reimbursable Tenant TI Architect Cost shall be paid by Escrow Agent to Tenant instead of to Tenant Architect (so long as the provisions of Section 10 of this Agreement have been met with regard to any such request). The cost and expense of the Landlord Architect for the work performed on (i) the Landlord’s Plans and Specifications for the Initial Premises Building Improvements (but not the Tenant Improvements) and (ii) the Landlord’s plans for the Mezzanine Improvements shall be paid for by the Landlord at its sole cost and expense and shall not be included in any Reimbursable Tenant TI Architect Costs. Any request for payment of a Reimbursable Tenant TI Architect Cost shall be considered and treated as a TI Draw Request for purposes of this Agreement, including the notices and time periods to apply thereto. | |||
| b. | Provided that Landlord has neither received from Tenant’s Architect nor delivered to Tenant’s Architect a Dispute Notice (as defined herein below) within the Approval Period (as defined herein below), then the Landlord shall fund, or cause to be funded, to the Escrow Agent the amount due under any Jointly Approved TI Draw Request (as defined hereinafter) within twenty (20) days after Landlord’s receipt of the Jointly Approved TI Draw Request prepared in accordance with the TI Construction Contract. If Landlord either delivers or has received a Dispute Notice within the Approval Period, Landlord shall fund, or cause to be funded, to the Escrow Agent within twenty (20) days of delivery or receipt of the Dispute Notice, any Non-Disputed TI Draw Request; and then Landlord shall fund, or cause to be funded, to the Escrow Agent the remainder of the TI Draw Request within twenty (20) days after Landlord’s receipt of written notice either from the Neutral as to its binding decision or jointly from Landlord and Tenant that the unpaid balance of such disputed TI Draw Request can be paid. Landlord shall fund, or cause to be funded, to the Escrow Agent the amount due under any Deemed Approved TI Draw Request (as defined hereinafter) within twenty (20) days after Landlord’s receipt from Escrow Agent of the Notice of Deemed Approval. | ||
| c. | The amounts to be deposited by Landlord under this Section 4 are herein referred to as the “Landlord Continuing Cash Contributions.” In all events, the aggregate total funding paid by or on behalf of Landlord to the Escrow Agent (including the Cash Deposit, Landlord Continuing Cash Contributions, and any draws made under the Standby Letter of Credit) shall not exceed the amount of the Tenant Improvement Allowance. |
| 5. | Landlord’s Standby Letter of Credit Deposit Obligation. |
| a. | On or before the Effective Date of the Lease, the Landlord shall deposit, or cause to be deposited, with the Escrow Agent one irrevocable standby letter of credit issued by Bank of America, N.A., in the form required hereunder and approved |
EXHIBIT H
| by Mortgagee, in the amount of [**REDACTED**], and an additional irrevocable standby letter of credit issued by an Authorized Bank (as defined herein), in the form required hereunder and approved by Mortgagee, in the amount of [**REDACTED**], which together shall equal the sum of the Tenant Improvement Allowance less the Cash Deposit (collectively, the “Standby Letter of Credit”). The Escrow Agent agrees to maintain custodial possession of, and hold in escrow, subject to the terms and conditions of this Escrow Agreement, the Standby Letter of Credit until all Escrow Funds deposited with the Escrow Agent are disbursed in accordance with the terms of this Escrow Agreement. All costs associated with the Standby Letter of Credit shall be paid by the Landlord. | |||
| b. | The Standby Letter of Credit shall permit a draw thereon: (i) in the event that Landlord has failed to fund the Landlord Continuing Cash Contributions as required under Section 4 of this Agreement within the time period set forth in Section 4 of this Agreement or an FFE&M Payment as required under Section 12 of this Agreement within the time period set forth in Section 12 of this Agreement, and (ii) in the event a court in an interpleader action filed by Escrow Agent in accordance with Section 21 hereof issues an order permitting Escrow Agent to draw upon the Standby Letter of Credit. The Standby Letter of Credit shall be irrevocable, and shall be issued by Bank of America and/or such other financial institution which is a national or regional banking institution, chartered by the United States or a state within the United States, and maintains offices within the continental United States (any such institution, an “Authorized Bank”). Any portion of the Standby Letter of Credit issued by Bank of America shall permit a draw thereon in Scranton, Pennsylvania, Los Angeles, California and by facsimile; any portion of the Standby Letter of Credit issued by an Authorized Bank shall permit a draw thereon in Brooklyn, New York and New York, New York and by facsimile to an office location within the continental United States. | ||
| c. | The Tenant shall have the right to approve the form of the Standby Letter of Credit prior to its issuance, which approval shall not be unreasonably withheld, conditioned or delayed. | ||
| d. | The aggregate balance of the Standby Letter of Credit available to be drawn on by Escrow Agent (the “Aggregate Available LC Balance”) shall reduce automatically (without the need for further action on the part of any of the parties to this Agreement) each time a Landlord Continuing Cash Contribution is deposited in good funds by an amount equal to the amount of the Landlord Continuing Cash Contribution received by Escrow Agent (each such reduction a “Cash Contribution Reduction”). In addition, each time a Cash Contribution Reduction occurs, Landlord shall have the right to direct Escrow Agent to allocate such Cash Contribution Reduction to a particular letter of credit (e.g. Landlord can direct that the reduction be allocated to the letter of credit issued by Bank of America or on a different letter of credit). Escrow Agent shall keep a record of the Aggregate Available LC Balance and the portion of such Aggregate Available LC Balance allocated to each letter of credit constituting the Standby Letter of Credit (an “Individual Available LC Balance”). At all times hereunder, Landlord |
EXHIBIT H
| shall have the right to request that the Escrow Agent exchange any particular letter of credit constituting a portion of the Standby Letter of Credit for a replacement letter of credit in a reduced face amount which accurately reflects the then applicable Individual Available LC Balance as reflected in the then current Approved Balance Statement (as defined hereinafter). | |||
| e. | Monthly, and from time to time as requested in writing by Landlord, the Escrow Agent shall send Landlord, Tenant and Mortgagee (as defined hereinafter) a ledger statement for the Escrow Account (the “Ledger Statement”) which shall include each of the following as same is in effect on the date of the Ledger Statement: |
| i. | the balance of the Cash Deposit; | ||
| ii. | the aggregate Landlord Continuing Cash Contributions made to date; | ||
| iii. | the balance of the Tenant Payment; | ||
| iv. | the balance of the Additional Tenant Payment; | ||
| v. | the Aggregate Available LC Balance; and | ||
| vi. | the Individual Available LC Balance of each letter of credit which constitutes the Standby Letter of Credit. |
| Landlord, Tenant and Mortgagee shall each have five (5) Business Days after Receipt (as defined below) of the Ledger Statement to review and deliver its written approval thereof to Escrow Agent. If any of Landlord, Tenant or Mortgagee does not deliver its written approval of the Ledger Statement within the required time period, then such party shall be deemed to have approved the Ledger Statement. After expiration of the five (5) Business Day review and approval period without receipt from any party of notice of a dispute to the contents of the Ledger Statement, Escrow Agent shall record such Ledger Statement as approved (the “Approved Balance Statement”). Upon receipt of a written request from the Mortgagee or any issuer for a statement regarding either the Aggregate Available LC Balance or an Individual Available LC Balance, the Escrow Agent shall deliver a copy of the most recent Approved Balance Statement to such issuer. | |||
| f. | Upon completion of the disbursement of all of the Escrow Funds deposited or required to be deposited in accordance with this Escrow Agreement, and if the then current Approved Balance Statement reflects that the Aggregate Available LC Balance is zero, the Escrow Agent shall promptly return the Standby Letter of Credit to the Landlord, and to the extent that the Standby Letter of Credit consists of more than one letter of credit, shall return each individual letter(s) of credit which are components of the Standby Letter of Credit to Landlord. At any time that a letter of credit constituting a portion of the Standby Letter of Credit has an Individual Available LC Balance, as reflected in the then current Approved Balance Statement, equal to zero, the Escrow Agent shall return the original of such letter of credit to Landlord. |
EXHIBIT H
| 6. | Tenant’s Initial Deposit Obligation. Within five (5) Business Days after the later of: (i) the Execution Date of the Lease, and (ii) the date the Landlord and the Tenant shall have approved the General Contractor’s bid for the Tenant Improvements, the Tenant shall deposit with the Escrow Agent a sum equal to the amount remaining after subtracting from the Stipulated Sum due to the General Contractor under its final accepted bid for the Tenant Improvements under the TI Construction Contract the sum of the Tenant Improvement Allowance, plus the IPBI Overage Amount, if any (the “Tenant Payment”). | ||
| 7. | Tenant’s Continuing Deposit Obligation. Tenant shall deposit with the Escrow Agent all amounts necessary to pay for any approved Change Order as required pursuant to Section 9 of the Work Letter to the Lease (each an “Additional Tenant Payment”). | ||
| 8. | Escrow Account. The Escrow Agent agrees, upon execution of this Escrow Agreement, to establish two (2) Federal Deposit Insurance Corporation insured interest-bearing accounts with Xxxxx Fargo, in the name of the Escrow Agent, for the collection and disbursement of all funds required to be deposited under this Agreement (one account to contain only monies deposited by the Tenant and one account to contain only monies deposited by the Landlord) (collectively such two (2) escrow accounts hereinafter being referred to as the “Escrow Account” and all funds deposited in the Escrow Account hereinafter being referred to as the “Escrow Funds”). The Escrow Agent agrees that all checks, money orders or drafts it receives in connection with this Escrow Agreement shall be processed for deposit in the normal course of business. The Tenant shall be entitled to all interest earned on the portion of the Escrow Funds deposited hereunder by the Tenant. The Landlord shall be entitled to all interest earned on the portion of the Escrow Funds deposited hereunder by or on behalf of the Landlord. Each of the Tenant and the Landlord understands that an IRS Form 1099 may be filed with the Internal Revenue Service in connection with such interest bearing accounts. The Tenant shall be responsible for all bank charges incurred in setting up the accounts containing the portion of the Escrow Funds deposited hereunder by the Tenant. The Landlord shall be responsible for all bank charges incurred in setting up the accounts containing the portion of the Escrow Funds deposited hereunder by or on behalf of the Landlord. The Tenant and the Landlord shall each be responsible for one half of the Escrow Agent’s usual and customary fees for (i) setting up the Escrow Account, and (ii) monthly servicing of the Escrow Account. | ||
| 9. | Escrow Agent’s Notification Obligation. |
| a. | Escrow Agent shall provide written notice to the Landlord and the Tenant with a copy to the Mortgagee, upon its receipt of any Escrow Funds, documents (excluding TI Draw Requests which reflect they have also been sent to Landlord and Tenant), or instruments received in connection with this Agreement and the matters addressed hereunder (provided that any such instrument or document which is not executed by both Landlord and Tenant shall not, and shall not be deemed to, prohibit or condition, the Escrow Agent’s obligation to disburse the Escrow Funds hereunder unless pursuant to the express terms hereof only one of |
EXHIBIT H
| Landlord or Tenant is required to authorize a release); such notice shall include the amount of any Escrow Funds, and the title or description of any document and/or instrument received and the date received. | |||
| b. | Promptly, but in all events within one (1) Business Day after Escrow Agent’s receipt of a Notice of Deemed Approval (as defined herein below), Escrow Agent shall provide written notice, via e-mail and one of the other methods for notice set forth in Section 14, to any Deemed Party (as defined herein below) and to Mortgagee that Escrow Agent has received a Notice of a Deemed Approval. | ||
| c. | Promptly, but in all events at least two (2) Business Days prior to Escrow Agent’s submission of a draw on the Standby Letter of Credit to the issuer thereof, Escrow Agent shall provide written notice, via e-mail and one of the other methods for notice set forth in Section 14, to Landlord and to Mortgagee of Escrow Agent’s intention to draw on the Standby Letter of Credit. |
| 10. | TI Draw Requests. |
| a. | The TI Construction Contract requires that the General Contractor deliver TI Draw Requests to the Escrow Agent simultaneously with delivery of such TI Draw Requests to Landlord, Tenant, and Tenant’s Architect. A TI Draw Request under the TI Construction Contract shall be subject to the review and approval of the Landlord and the Tenant Architect as provided in the TI Construction Contract; provided, however, that each of the Landlord and the Tenant Architect shall have five (5) Business Days after its Receipt of any TI Draw Request (the “Approval Period”) to review the TI Draw Request and provide written notice to the other party, the Neutral, and to the Escrow Agent of a dispute with respect to any TI Draw Request (any such notice, a “Dispute Notice”). If a Dispute Notice expressly states or identifies a portion of a TI Draw Request as not being in dispute, such portion is herein referred to as the “Non-Disputed TI Draw Request.” A TI Draw Request that is not subject to a Dispute Notice and has been approved in writing by both Landlord and the Tenant Architect is herein referred to as a “Jointly Approved TI Draw Request.” In all events where either of the Landlord or the Tenant Architect shall deliver a Dispute Notice, the Escrow Agent shall not make any disbursements from the Escrow Account or draw upon the Standby Letter of Credit until receipt of written confirmation from the Neutral that a decision has been made with regard to such dispute (excluding however any Approved TI Draw Request which may be disbursed) and compliance with the notice requirements of Section 9. The Neutral shall be obligated under the terms of the TI Construction Contract to render a binding decision within five (5) Business Days of its receipt of a timely delivered Dispute Notice. | ||
| “Receipt” means that any notice or delivery to a party sent by: (i) hand delivery has been acknowledged in writing by the party to whom it was sent as having been received and the effective date of such receipt shall be the date on the acknowledgement, (ii) nationally recognized overnight courier with fees prepaid, has been delivered or refused as evidenced by the written records of the third party courier service and the effective date of such receipt shall be the date on the |
EXHIBIT H
| courier services’ records, (iii) facsimile has a transmission sheet evidencing a successful transmission and such notice/delivery was also sent by U.S. mail on the same day and the effective date of such receipt shall be the date of the transmission if sent prior to 5:00 p.m. eastern standard time, or the following day if sent after 5:00 p.m. eastern standard time, or (iv) e-mail has written “read receipt” evidence (but not a delivery status notification) and such notice/delivery was also sent by U.S. mail on the same day and the effective date of such receipt shall be the date set forth in the “read receipt” if prior to 5:00 p.m. eastern standard time, or the following day if after 5:00 p.m. eastern standard time. | |||
| An “Approved TI Draw Request” shall mean any of: |
(1) a Jointly Approved TI Draw Request;
(2) a Non-Disputed TI Draw Request;
(3) the portion of a Disputed TI Draw Request which has been approved in
writing by the Neutral within the time period required for the Neutral to deliver a
binding decision; and
(4) a TI Draw Request where each of the following has been received by the
Escrow Agent (a “Deemed Approved TI Draw Request”): (A) the written approval of
either the Landlord or the Tenant Architect (the “Deemed Approver”), (B) a
certification from the Deemed Approver that the TI Draw Request is in full
compliance with the requirements of the TI Construction Contract, (C) proof of
Receipt of the TI Draw Request by the party whose written approval is not included
in the TI Draw Request (the “Deemed Party”), and (D) evidence that five (5) Business
Days have passed (not including the date of the Receipt) since the Deemed Party’s
Receipt of the TI Draw Request.
| b. | The Escrow Agent is not responsible for determining the authenticity of the TI Draw Request(s) delivered to Escrow Agent or the accurateness of the information contained therein, but shall be responsible for confirming that with respect to any TI Draw Request Escrow Agent has received (the “Verification”) either: |
| i. | the written approval of (A) both the Landlord and the Tenant Architect, or (B) the Neutral, or | ||
| ii. | each of: (A) the written approval of the Deemed Approver, (B) a certification from the Deemed Approver that the TI Draw Request is in full compliance with the requirements of the TI Construction Contract, (C) proof of Receipt by the Deemed Party, and (D) evidence that five (5) Business Days have passed (not including the date of the Receipt) since the Deemed Party’s Receipt of the TI Draw Request (collectively, (A), (B), (C) and (D) are referred to as “Notice of Deemed Approval”). |
| c. | In the event that the Tenant elects to have the Landlord’s interest in the TI Construction Contract assigned to the Tenant as provided for in the Work Letter to the Lease, then the Landlord’s written approval as required in this Section 10 shall be replaced with the Tenant’s written approval with respect to satisfaction of |
EXHIBIT H
| such criteria. The Tenant shall serve written notice on the Landlord, Mortgagee and the Escrow Agent in the event that the Tenant elects to have the Landlord’s interest in the TI Construction Contract assigned to the Tenant as provided for in the Work Letter to the Lease (a “Tenant Assignment” and the notice thereof, a “Tenant’s Assignment Notice”). Landlord shall have five (5) Business Days after its Receipt of Tenant’s Assignment Notice in which to deliver written notice to the Escrow Agent that the TI Construction Contract has not been assigned to Tenant or that a dispute exists with respect to any such proposed Tenant Assignment (a “Tenant Assignment Dispute”). If Landlord delivers notice of a Tenant Assignment Dispute within the time period set forth herein, Escrow Agent may not rely upon Tenant’s approval in Landlord’s stead. If Landlord does not deliver notice of a Tenant Assignment Dispute within the required time period and Tenant delivers to Escrow Agent an executed Assumption Agreement (as defined hereinafter), proof of Receipt by Landlord of Tenant’s Assignment Notice, and evidence that five (5) Business Days have passed (not including the date of the Receipt) since the Landlord’s Receipt, then upon receipt of Tenant’s delivery to Escrow Agent, Landlord, and Mortgagee of such items, Escrow Agent shall be entitled to assume the Tenant Assignment is valid. Any dispute regarding a Tenant Assignment will not disrupt the Escrow Agent’s obligation to pay any Approved TI Draw Request provided that the Escrow Agent has received Verification. Tenant shall execute and deliver in connection with any Tenant Assignment, an assumption agreement assuming the obligations of, and indemnifying Landlord (its successors and assigns) for, the obligations of the “Owner” under the assigned contract from and after the assignment date and Landlord shall indemnify Tenant for all liability of the “Owner” under the assigned contract prior to the assignment date (an “Assumption Agreement”). | |||
| d. | In the event that the Mortgagee elects to have the Landlord’s interest in the TI Construction Contract assigned to the Mortgage as provided for in the Work Letter to the Lease, then the Landlord’s written approval as required in this Section 10 shall be replaced with the Mortgagee’s written approval with respect to satisfaction of such criteria. The Mortgagee shall serve written notice on the Landlord, Tenant and the Escrow Agent in the event that the Mortgage elects to have the Landlord’s interest in the TI Construction Contract assigned to the Mortgagee as provided for in the Work Letter to the Lease (a “Mortgagee Assignment” and the notice thereof, a “Mortgagee Assignment Notice”). Upon receipt of the Mortgagee Assignment Notice, Landlord shall have no right to direct or control distribution of the Escrow Funds. As between Landlord and Mortgagee, the rights to direct or control distribution of Escrow Funds after Landlord’s receipt of a Mortgagee Assignment Notice shall be governed by the loan documents between Landlord and Mortgagee. Escrow Agent shall be entitled to rely upon any Mortgagee Assignment Notice. |
| 11. | Escrow Agent’s Disbursement Obligation to the General Contractor. Provided that the Escrow Agent has received Verification, Escrow Agent shall, within thirty (30) days after receipt of a TI Draw Request from the General Contractor, disburse the amount of such |
EXHIBIT H
| draw request from the Escrow Account to the General Contractor in accordance with the terms of this Escrow Agreement. The Escrow Agent is not responsible for determining the accuracy of the Approved TI Draw Request(s) delivered to Escrow Agent, but shall be responsible for confirming the Verification. Payments made to the General Contractor shall be made and disbursed first from the portion of the Escrow Funds comprised of Landlord Continuing Cash Contributions, the Cash Deposit, and if required to be drawn, proceeds of the Standby Letter of Credit, secondly, from the portion of the Escrow Funds comprised of the Additional Tenant Payment, and thirdly, from the portion of the Escrow Funds comprised of the Tenant Payment. |
| 12. | Escrow Agent’s Disbursement Obligation to the Tenant. |
| a. | If, after final payment has been made to the General Contractor under the TI Construction Contract and all lien waivers, releases and final contractor affidavits have been delivered to Landlord as required under the TI Construction Contract and Florida Statutes, the Tenant Improvement Allowance has not been fully disbursed, then the balance of the Tenant Improvement Allowance, up to an amount not to exceed [**REDACTED**] per square foot of Rentable Area contained in the Initial Premises, as contemplated under Section 1.01(vvv) of the Lease, shall be paid to the Tenant for its costs as permitted by Section 1.01(vvv) of the Lease (such costs, the “FFE&M Costs”). In that regard, the Tenant shall make application to the Escrow Agent for payment of FFE&M Costs by submitting one or more payment requests to the Landlord, accompanied with sufficient back-up detail as may be reasonably required by the Landlord (including, without limitation, all lien waivers and releases as may be necessary or desirable) and, after the Landlord’s approval, not to be unreasonably withheld, conditioned or delayed, within twenty (20) days of receipt of such written request, the parties shall jointly submit a written application to the Escrow Agent for payment of the amounts set forth therein to the Tenant (any such application, an “FFE&M Directive”), and shall simultaneously provide a copy of any FFE&M Directive to Mortgagee. Within thirty (30) days after receipt of an FFE&M Directive, the Escrow Agent shall disburse the amount set forth in the FFE&M Directive (each an “FFE&M Payment”) to the Tenant. If the Landlord has not funded, or caused to be funded, the full amount of the Tenant Improvement Allowance into the Escrow Account, then the Landlord shall be required to fund, or cause to be funded, to the Escrow Agent within twenty (20) days after delivery of an FFE&M Directive, such additional amount as is necessary to pay the FFE&M Payment in full; if an FFE&M Payment is required to be made by Landlord and is not made by the Landlord within such twenty (20) day period, then the Escrow Agent shall be obligated to draw on the Standby Letter of Credit to satisfy the FFE&M Payment. | ||
| b. | To the extent that (I) either (A) any Escrow Funds deposited by or on behalf of Landlord remain in the Escrow Account after payment of the Construction Cost of the Tenant Improvements, the FFE&M Costs, and the Reimbursable Tenant TI Architect Costs (collectively, the “Aggregate Allowance Costs”), or (B) the Landlord’s Unfunded Cash Contribution Balance (as hereinafter defined) is |
EXHIBIT H
| greater than zero (collectively, (i) and (ii) referred to as “Landlord’s Remaining Funds”), and (II) all lien waivers, releases and final contractor affidavits have been delivered as required under the TI Construction Contract and Florida Statutes, then Escrow Agent shall disburse to Tenant that portion of Landlord’s Remaining Funds which are directly attributable to a reduction in the Aggregate Allowance Costs due to an offset of Per Diem Costs (“Per Diem Allowance Balance”) in accordance with the provisions set forth below. All other portions of Landlord’s Remaining Funds shall be paid to Landlord. Each of Landlord and Mortgagee shall have five (5) Business Days after Receipt of a notice from Escrow Agent of its intention to disburse the Per Diem Allowance Balance in which to deliver written notice to the Escrow Agent that such party objects to the disbursement of the Per Diem Allowance Balance (a “Per Diem Disbursement Dispute”). If either Landlord or Mortgagee delivers notice of a Per Diem Disbursement Dispute within the time period set forth herein, Escrow Agent shall not disburse the Per Diem Allowance Balance to Tenant. If neither Landlord nor Mortgagee delivers notice of a Per Diem Disbursement Dispute within the required time period and Escrow Agent has proof of Receipt by each such party of the Per Diem Disbursement Dispute and evidence that five (5) Business Days have passed (not including the date of the Receipt) since the Receipt, then Escrow Agent may disburse the Per Diem Allowance Balance (in the amount set forth in the written notice) to Tenant. If the Per Diem Allowance Balance is not in the Escrow Account and the Escrow Agent shall have to obtain same from Landlord’s Unfunded Cash Contribution Balance, then the Landlord shall be required to fund, or cause to be funded, the unfunded Per Diem Allowance Balance to the Escrow Agent within twenty (20) days after notice from Escrow Agent that the Per Diem Allowance Balance needs to be funded; if an unfunded Per Diem Allowance Balance is required to be made by Landlord and is not made by the Landlord within such twenty (20) day period, then the Escrow Agent shall be obligated to draw on the Standby Letter of Credit to satisfy the unfunded Per Diem Allowance Balance. To the extent that any Escrow Funds deposited by or on behalf of Tenant remain after payment of the Construction Cost of the Tenant Improvements, then the remaining Escrow Funds deposited by Tenant shall be disbursed to Tenant. |
| 13. | Escrow Agent’s Obligation to Draw on the Standby Letter of Credit. |
| a. | At any time that the Escrow Agent is required by the terms of this Agreement to draw under the Standby Letter of Credit, the Escrow Agent shall draw under the Standby Letter of Credit on a single occasion, which draw shall be in an amount (herein referred to as the “Landlord’s Unfunded Cash Contribution Balance”) which is equal to the lesser of: (Y) the Aggregate Available LC Balance, and (Z) the amount of the Tenant Improvement Allowance less the aggregate disbursements as of such date made by Escrow Agent on the TI Construction Contract, for FFE&M Costs, and for Reimbursable Tenant TI Architect Costs, the parties recognizing that the Standby Letter of Credit is intended to reduce in amount from time to time as and when Landlord Continuing Cash Contributions |
EXHIBIT H
| are made towards the Tenant Improvement Allowance and that at any given time the aggregate face amount or amount available to be drawn under the Standby Letter of Credit may be greater than the amount then required to be paid by Landlord hereunder. | |||
| b. | At any time that the Escrow Agent is required by the terms of this Agreement to draw under the Standby Letter of Credit, it shall do so by submitting to the financial institution issuing the Standby Letter of Credit an affidavit of the Escrow Agent stating that (I) the Escrow Agent has not received either from the Landlord or on the Landlord’s behalf, any Landlord Continuing Cash Contribution required to be paid by the Landlord under Section 4 of this Agreement within the time period set forth in Section 4 of this Agreement, and (II) the Escrow Agent has received a Verification with respect to the applicable Approved TI Draw Request. | ||
| c. | Escrow Agent shall have no discretion as to whether or not to immediately draw and the Escrow Agent shall be required to immediately make such draw (subject to Escrow Agent’s delivery of the notices set forth in Section 9 of this Agreement) under the Standby Letter of Credit in the event that the Landlord has failed to fund, or cause to be funded, to the Escrow Agent (i) any required Landlord Continuing Cash Contribution required under Section 4 of this Agreement within the time period set forth in Section 4 of this Agreement or (ii) any FFE&M Payment required under Section 12 of this Agreement within the time period set forth in Section 12 of this Agreement. Upon drawing under the Standby Letter of Credit, the Escrow Agent shall deposit all such proceeds in the Escrow Account. Landlord and Tenant hereby agree that the Escrow Agent may file an interpleader action as contemplated under Section 21 of this Agreement at any time within the thirty (30) days prior to the Expiration/Expiry Date of the Standby Letter of Credit in order to ensure that the proceeds of the Standby Letter of Credit may be drawn and added to the Court Registry if so determined by the court in the interpleader action prior to the expiration of the Standby Letter of Credit. Notwithstanding anything contained in this Escrow Agreement to the contrary, the Escrow Agent understands, acknowledges, and agrees that the Escrow Agent shall be liable to the Tenant for any and all damages the Tenant suffers as a result of the Escrow Agent’s failure to draw on the Standby Letter of Credit within the time periods required by this Escrow Agreement and deposit the resulting proceeds of such draw into the Escrow Account or interplead such funds into the Court Registry as required under this Escrow Agreement. | ||
| d. | In the event that on November 20, 2012 (i) this Agreement has not been terminated, (ii) Landlord has not fully funded the Tenant Improvement Allowance, and (iii) the Standby Letter of Credit has not been drawn upon, then the Escrow Agent shall notify Landlord and Mortgagee in writing that it intends to draw down the then existing Aggregate Available LC Balance of the Standby Letter of Credit on December 1, 2012 (and deposit the balance in the Escrow Account), unless prior to December 1, 2012 the Landlord provides either (A) a cash deposit in the amount of the then existing Aggregate Available LC Balance (as reflected on the then current Approved Balance Sheet), or (B) a substitute or |
EXHIBIT H
| replacement letter of credit in an amount equal to the then existing Aggregate Available LC Balance (as reflected on the then current Approved Balance Sheet), which substitute/replacement letter of credit shall be issued by an Authorized Bank in substantially the same form as the original Standby Letter of Credit (excluding changes in the issue date, the expiry date, and the amount of the letter of credit to conform to the requirements of this Section) and shall have an expiration date of December 31, 2013 or later (the “Replacement Letter of Credit”). If the Replacement Letter of Credit is not issued by an Authorized Bank and in substantially the same form as the original Standby Letter of Credit (excluding changes in the issue date, the expiry date, and the amount of the letter of credit to conform to the requirements of this Section), then the form of the Replacement Letter of Credit shall be subject to the approval by Tenant and Mortgagee; Tenant and Mortgagee shall each have five (5) Business Days after Receipt of the form of any Replacement Letter of Credit which is not issued by an Authorized Bank in substantially the same form as the original Standby Letter of Credit, to review and deliver its written approval thereof to Escrow Agent. If either of the Tenant or Mortgagee does not deliver its written approval or disapproval of said Replacement Letter of Credit within the required time period, then such party shall be deemed to have approved the Replacement Letter of Credit. After expiration of the five (5) Business Day review and approval period without receipt from any party of notice of a dispute to the Replacement Letter of Credit, the Replacement Letter of Credit shall be deemed approved. Upon delivery of the approved (or deemed approved) Replacement Letter of Credit to Escrow Agent (I) the Escrow Agent shall not be authorized or permitted to draw upon any of the letters of credit constituting the original Standby Letter of Credit, (II) the Replacement Letter of Credit shall for all purposes thereafter be referred to hereunder as the Standby Letter of Credit and be governed by the provisions of this Agreement, and (III) the Escrow Agent shall return the original Standby Letter of Credit immediately to Landlord. Escrow Agent shall not, and shall not be deemed to be authorized under any circumstances, to draw upon both the original Standby Letter of Credit and a Replacement Letter of Credit. Notwithstanding anything contained in this Escrow Agreement to the contrary, the Escrow Agent understands, acknowledges, and agrees that the Escrow Agent shall be liable to the Landlord for any and all damages the Landlord suffers as a result of the Escrow Agent’s drawing upon both the original Standby Letter of Credit and a Replacement Letter of Credit. Upon Receipt of a notice of dispute regarding a Replacement Letter of Credit, the Landlord shall have five (5) Business Days within which to (A) replace the Replacement Letter of Credit with a letter of credit which satisfies the requirements specified in the dispute notice or (B) deposit cash with Escrow Agent in an amount equal to the Aggregate Available LC Balance, or failing which, after expiration of such time period, the Escrow Agent shall draw upon the original Standby Letter of Credit for the full Aggregate Available LC Balance. For purposes of Subsection 13(d) and 13(e), this right and obligation to draw is absolute, and not subject to dispute or objection by Landlord in any way. No failure to provide a Replacement Letter of Credit or cash deposit within the time limits set forth herein may be waived or |
EXHIBIT H
| permitted and no time limit extension for any reason may be granted, except in each instance in a writing signed by each of Landlord, Tenant, and Mortgagee. | |||
| e. | In the event that on November 20, 2013, (i) this Agreement has not been terminated, (ii) Landlord has not fully funded the Tenant Improvement Allowance, and (iii) such Replacement Letter of Credit has not been drawn upon, then the Escrow Agent shall notify Landlord and Mortgagee in writing that it intends to draw down the then existing Aggregate Available LC Balance (as reflected on the then current Approved Balance Sheet) of the Replacement Letter of Credit on December 1, 2013 (and deposit the balance in the Escrow Account), unless prior to December 1, 2013, the Landlord provides a substitute or replacement letter of credit in an amount equal to the then existing Aggregate Available LC Balance (as reflected on the then current Approved Balance Sheet), which substitute/replacement letter of credit shall be issued by an Authorized Bank in substantially the same form of the Standby Letter of Credit (excluding changes in the issue date, the expiry date, and the amount of the letter of credit to conform to the requirements of this Section) and shall have an expiration date of no less than twelve months following the expiration date of such Replacement Letter of Credit; Tenant and Mortgagee shall have the same approval rights as set forth in Subsection 13 (d) above, and the Escrow Agent shall have the same obligation to draw, with regard to any Replacement Letter of Credit which is not issued by an Authorized Bank and in substantially the same form as the original Standby Letter of Credit. Escrow Agent shall not, and shall not be deemed to be authorized under any circumstances, draw upon both the original Standby Letter of Credit and a Replacement Letter of Credit. Notwithstanding anything contained in this Escrow Agreement to the contrary, the Escrow Agent understands, acknowledges, and agrees that the Escrow Agent shall be liable to the Landlord for any and all damages the Landlord suffers as a result of the Escrow Agent’s drawing upon both the original Standby Letter of Credit and a Replacement Letter of Credit. | ||
| f. | Upon any termination of the Lease prior to commencement of the Tenant Improvements (including, without limitation, pursuant to Section 9.02 of the Lease), which termination is evidenced in writing by Landlord and Tenant (of which a copy shall be provided to Mortgage), the Escrow Agent shall promptly return each portion of the Escrow Account to the party which delivered same, including, without limitation, return of the Cash Deposit to Landlord. |
| 14. | Notices. All notices required or permitted to be given by Landlord, Tenant, Mortgagee and/or Escrow Agent under this Agreement, except for those notices set forth in this Agreement which expressly provide the manner in which they shall be given, shall be in writing and delivered via (i) United States Mail, certified or registered, postage prepaid, return receipt requested, or (ii) nationally recognized overnight courier with confirmation of delivery, and addressed to all parties to this Escrow Agreement at their addresses as follows: |
LANDLORD:
|
EL-AD FLORIDA LLC | |
| 0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000 |
XXXXXXX X
| Xxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxxx Xxxxxx | ||
| Telephone: 000-000-0000 | ||
| Facsimile: 000-000-0000 | ||
| E-mail: xxxxxxx@xxxxxxxxxxxx.xxx | ||
with a copy to:
|
GrayRobinson, P.A. | |
| 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxx X. Xxxxx | ||
| Telephone: 000-000-0000 | ||
| Facsimile: 904-598-9109 | ||
| E-mail: xxxxx.xxxxx@xxxx-xxxxxxxx.xxx | ||
TENANT:
|
EverBank | |
| 0000 Xxxxxxx Xxx | ||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxxx Xxxxxxxxx | ||
| Vice President | ||
| Telephone: 000-000-0000 | ||
| Facsimile: 000-000-0000 | ||
| E-mail: xxxxxx.xxxxxxxxx@xxxxxxxx.xxx | ||
With a copy to:
|
EverBank | |
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxxx Xxxxx | ||
| Senior Vice President & General Counsel | ||
| Telephone: 000-000-0000 | ||
| Facsimile: 000-000-0000 | ||
| E-mail: xxxxxx.xxxxx@xxxxxxxx.xxx | ||
ESCROW AGENT:
|
FIRST AMERICAN TITLE INSURANCE COMPANY | |
| 0000 Xxxxxxxx Xxxxxxx Xxxx. X, Xxxxx 000 | ||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxxxx X. Xxxxx, Xx., Vice President/Area Manager | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| E-mail: xxxxxx@xxxxxxx.xxx | ||
with a copy to:
|
FIRST AMERICAN TITLE INSURANCE COMPANY | |
| 0000 Xxxxxxxx Xxxxxxx Xxxx. X, Xxxxx 000 | ||
| Xxxxxxxxxxxx, Xxxxxxx 00000 |
EXHIBIT H
| Attn: Koko Head, Underwriting Counsel | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| E-mail: xxxxx@xxxxxxx.xxx | ||
MORTGAGEE:
|
XXXXX FARGO, N.A., AS TRUSTEE FOR THE | |
| CERTIFICATEHOLDERS OF GMAC COMMERCIAL | ||
| MORTGAGE SECURITIES, INC., MORTGAGE PASS- | ||
| THROUGH CERTIFICATES, SERIES 2006-C1 (together with | ||
| any successor and/or assignee thereof, the “Mortgagee”) | ||
| c/o CWCapital Asset Management LLC | ||
| 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxx | ||
| Xxxxxxxx, Xxxxxxxx 00000 | ||
| Attn: Xxx Xxxxx | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 202.715.9698 | ||
| E-mail: xxxxxx@xxxxxxxxx.xxx | ||
With a copy to:
|
Weil, Gotshal & Xxxxxx, LLP | |
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attn: Xxxxxx Xxxxx, Esq. | ||
| Telephone: 000.000.0000 | ||
| Facsimile: 212.310.8007 | ||
| E-mail: xxxxxx.xxxxx@xxxx.xxx |
| A party may change its address for notices by delivering written notice of such alternative address to the other parties to this Escrow Agreement in accordance with the terms of this Section. Notice shall be deemed received upon actual receipt or refusal by the addressee. Notices may be given on behalf of any party by such party’s legal counsel. | |||
| 15. | Modification. Any changes in the terms or conditions hereof shall be made only in writing, signed by all parties to this Escrow Agreement. | ||
| 16. | Jury Trial Waiver. Landlord, Tenant, and Escrow Agent each hereby irrevocably, knowingly and voluntarily waive trial by jury in any action, proceeding or counterclaim brought by any of the parties against any of the others or their successors in respect to any matter arising out of or in connection with this Escrow Agreement. | ||
| 17. | Conflict. In the event of an express conflict between the terms of this Escrow Agreement and the Lease, the provisions of this Escrow Agreement will control in all matters to which Escrow Agent is a party; with regard to all matters by and between Landlord and Tenant which do not involve Escrow Agent, the provisions of the Lease will control in the event of an express conflict. |
EXHIBIT H
| 18. | Governing Law. This Escrow Agreement shall be governed by and construed under the laws of the State of Florida, without regard to its laws relating to conflict or choice of laws. Any action to enforce or interpret the provisions of this Escrow Agreement shall be brought in the applicable state or federal court sitting in Xxxxx County, Florida. | ||
| 19. | Counterparts. This Escrow Agreement may be executed in multiple counterparts but such multiple counterparts shall constitute a single agreement. Facsimile signatures shall be binding upon the parties. | ||
| 20. | Attorneys’ Fees. In the event that litigation is initiated relating to this Escrow Agreement, the parties hereto agree that the prevailing party shall be entitled to reasonable attorneys’ fees, court costs and expenses. To the extent that the Escrow Agent holds funds under the terms of this Escrow Agreement, the parties hereto, other than the Escrow Agent, agree that the Escrow Agent is entitled to reimbursement of reasonable attorneys’ fees, court costs and expenses relating to said litigation as they are incurred by the Escrow Agent from the funds escrowed herewith, without limiting any other right of recovery from the Landlord and the Tenant directly. | ||
| 21. | Conflicting Demands. In the event conflicting demands are made on the Escrow Agent, or the Escrow Agent, in good faith, believes that any demands with regard to the Escrow Funds and/or the Standby Letter of Credit are in conflict or are unclear or ambiguous, the Escrow Agent may bring an interpleader action in any state or federal court sitting in Xxxxx County, Florida. Provided that a judicial determination has not been made that Escrow Agent was grossly negligent or engaged in willful misconduct, the filing of such action shall not be deemed to be the “fault” of the Escrow Agent, and the Escrow Agent is entitled to reimbursement from the Escrow Funds for its reasonable costs and attorneys’ fees incurred in connection with same, through final appellate review. In the event Escrow Agent intends to exercise the right to interplead the Escrow Funds and/or the Standby Letter of Credit in accordance with this Section 21, the Escrow Agent shall either (a) receive the written consent of Landlord and Tenant to draw an amount equal the Landlord’s Unfunded Cash Contribution Balance under the Standby Letter of Credit and interplead such proceeds along with all Escrow Funds, or (b) include a declaratory or similar count in the interpleader action requesting the court authorize Escrow Agent to draw an amount equal the Landlord’s Unfunded Cash Contribution Balance under the Standby Letter of Credit and interplead such proceeds along with all Escrow Funds, and the Landlord and the Tenant hereby consent to such action of the Escrow Agent. In addition, the Landlord and the Tenant hereby indemnify the Escrow Agent from all such reasonable attorneys’ fees, court costs and expenses. All liability and obligations of the Escrow Agent terminate upon the deposit of the Escrow Funds and the Standby Letter of Credit into the Court Registry pursuant to an interpleader or other action. In no event shall this Section 21 concerning any conflicting demands apply to an Approved TI Draw Request for which a Verification has been received. |
EXHIBIT H
| 22. | Limitations of Liability. Without limitation, Escrow Agent shall not be liable for any loss or damage resulting from the following: |
| a. | The financial status or insolvency of any other party, or any misrepresentation made by any other party. | ||
| b. | The legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by or to the Escrow Agent or exchanged by the parties hereunder, whether or not the Escrow Agent prepared such instrument. | ||
| c. | The default, error, action or omission of any other party to this Escrow Agreement. | ||
| d. | Any loss or impairment of cash that has been deposited in escrow while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency or suspension of such financial institution (provided that such funds are deposited in accordance with the terms of this Escrow Agreement), or any loss or impairment of funds due to the invalidity of any draft, check, document or other negotiable instrument delivered to the Escrow Agent. | ||
| e. | The expiration of any time limit or other consequence of delay by Landlord or Tenant (but not Escrow Agent), unless settlement instruction(s) executed by each of Landlord and Tenant and accepted by the Escrow Agent has instructed the Escrow Agent to comply with said time limit. | ||
| f. | The Escrow Agent’s compliance with any legal process, subpoena, writ, order, judgment or decree of any court, whether issued with or without jurisdiction and whether or not subsequently vacated, modified, set aside or reversed. | ||
| g. | Any shortfall in the sufficiency of the amount held in escrow to accomplish the purpose of this Escrow Agreement not caused by Escrow Agent. | ||
| h. | Any obligation to collect additional funds not provided herein, unless such obligation is in writing and signed by the Escrow Agent. |
| 23. | Release of Liability Upon Completion of Disbursement. Upon completion of the disbursement of the Escrow Funds and the Standby Letter of Credit in accordance with this Escrow Agreement, and delivery of instruments, if any, Escrow Agent shall be automatically released and discharged of its escrow obligations hereunder and all liability associated with this escrow. Escrow Agent will have no liability for damages under this Escrow Agreement unless Escrow Agent is determined by a Court of competent jurisdiction to be grossly negligent or in willful breach in the performance of the duties set forth herein. These conditions of escrow shall apply to and be for the benefit of agents of the Escrow Agent employed by it for services in connection with this escrow, as well as for the benefit of the Escrow Agent. |
EXHIBIT H
| 24. | Administration. Upon the Escrow Agent’s written request to both the Landlord and the Tenant, the Landlord and the Tenant shall provide copies of so much of the Lease and/or TI Construction Contract as is reasonably necessary for the Escrow Agent to fulfill its obligations under this Escrow Agreement. |
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
EXHIBIT H
IN WITNESS WHEREOF, Landlord, Tenant and Escrow Agent have executed this Escrow Agreement to
be effective as of the Effective Date.
| LANDLORD: | ||||||
| EL-AD FLORIDA LLC, a Florida limited liability company | ||||||
| By: | EL-AD GROUP FLORIDA CORP., a Florida corporation, Its Managing Member |
|||||
| By: | ||||||
| By: | ||||||
| Date: | ||||||
| TENANT: | ||||||
| EVERBANK, a Florida corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
| ESCROW AGENT: | ||||||
| FIRST AMERICAN TITLE INSURANCE COMPANY, | ||||||
| a | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
EXHIBIT H
ADDENDUM “1”
ATM RIGHTS
1. ATM. The Landlord hereby grants to the Tenant the exclusive right,
during the Term of the Lease, and without additional charge or cost, except as set forth
hereinbelow, to locate, install, repair, replace, maintain and operate up to a maximum of three (3)
ATMs (i) in or about the Mezzanine, (ii) in proximity to the exterior Building entrances, (iii) in
the Building Parking Garage and (iv) on the exterior of the retail branch bank facility, subject to
the Landlord exercising the right to impose conditions dealing with wall penetration, construction,
permitting, utilities and related issues; provided, however, the precise location of such ATMs
shall be subject to the Landlord’s reasonable approval except to the extent located within any
portion of the Premises. Landlord agrees that during the Term of the Lease the Landlord will not
enter into any new lease, occupancy, license or other agreement which will permit any person or
firm to install and/or operate an ATM in the Mezzanine or upon the exterior Common Areas serving
the Building, proximate to the exterior Building entrances.
2. ATM Rent. The Tenant shall pay to the Landlord as Additional Rent the sum of Five
Hundred and No/100 Dollars ($500.00) per month for each ATM located at the Development during any
month or portion hereof that any such ATM(s) are installed and operational.
3. Location of ATM(s). It is understood and agreed that the exclusive rights
described herein shall not apply to any tenants of the Building existing as of the Effective Date
who are not prohibited in their respective leases from such activities, or their successors or
assigns; but the Landlord agrees that it will not approve or consent to the installation or
operation of any ATM(s) by any existing tenant (other than the Tenant or an affiliate of the
Tenant) which is in violation of such exclusive if the Landlord has a right to approve or consent
to any such installation or operation pursuant to the provisions of any such tenant’s lease in the
Building (nor will the Landlord modify any lease or occupancy agreement with any such tenant to
permit such installation or operation).
4. Extent of ATM Rights. The ATM rights granted hereinabove shall be appurtenant to
the Lease and shall not be transferable unless transferred in connection with a Transfer. Should
the Lease (or the rights of the Tenant therein) pass to another party as therein permitted, then
the rights as set forth herein shall be fully assignable to the successor in interest under the
Lease as permitted by the Lease.
5. Responsibilities.
(a) The Tenant shall be responsible at its sole cost and expense for all hard and soft
construction costs related to the installation of each of such ATM(s) and the costs to provide
dedicated electrical service lines and secure telephone and data transmission conduits from the
utility closet in close proximity to such ATM, including electrical service to the ATM, all in
compliance with applicable building codes and safety requirements. The Landlord shall have no
liability or responsibility for maintaining the security of any telephone or security services, or
any transmissions or other use of such conduits or lines.
ADDENDUM 1
(b) The Tenant hereby acknowledges and agrees that the Tenant shall (i) be fully responsible
for the purchase, operation, maintenance, repair, and the security of all data and other
transmissions, and insuring of any ATM and the contents thereof, (ii) comply with all applicable
laws, ordinances, regulations and rules to which it is subject or governing, the ATM, including
without limitation the Americans with Disabilities Act and (iii) keep the ATM in good working order
and safe repair at all times. Additionally, the Tenant shall comply with the reasonable rules and
regulations established by the Landlord with regard to the ATM provided that none of such rules and
regulations deny the Tenant the peaceful and quiet possession of the ATM and do not impede, thwart,
deny or diminish the rights as set forth herein.
(c) Not later than ten (10) days after the expiration or earlier termination of the Lease, the
Tenant shall, at its sole cost and expense, remove all ATM(s) (and any associated decals and
signage) and shall repair any and all damages to the premises, including, without limitation, any
improvement to which an ATM is attached, and any other portion of the Development resulting from
such removal and restore the premises to the condition existing immediately prior to the
installation if such ATM (ordinary wear, tear and casualty excepted), except the Tenant shall not
be required to remove or replace any wiring, conduit, carpet or other flooring material.
6. No Liability; Indemnification. Notwithstanding any provision of this Addendum “1”
to the contrary, neither the Landlord nor its members, officers, directors, managers, employees or
agents shall be liable to the Tenant or its members, officers, directors, managers, employees,
agents, invitees, patrons or any users of the ATM(s) for any loss, damage or theft of the ATM(s) or
any contents or funds therein, and the Tenant hereby expressly assumes all risk and damage to
persons and property, related to the Tenant’s customers use of the ATM(s) or the contents or funds
therein, either proximate or remote, unless due to the gross negligence or willful misconduct of
the Landlord, its members, officers, directors, managers, employees or agents (collectively, the
“Tenant Risk”). The Landlord shall not be liable to the Tenant for any interference or intrusion
in any data line, communication line, or other information storing or transmitting mechanism, with
respect to the ATM(s), unless due to gross negligence or willful misconduct of the Landlord, its
members, officers, directors, managers, employees or agents, and the Tenant agrees that it is
solely responsible to maintain the security and monitoring of any data line, communication line, or
other information storing or transmitting mechanism with respect to the ATM(s). The Tenant agrees
that the Tenant will indemnify and hold harmless the Landlord and its members, officers, directors,
managers, employees and agents of, from, and against all damages, liabilities, suits, claims and
actions of every kind with respect to the ATM(s) arising out of the Tenant’s exercise of its rights
set forth in this Addendum “1”, and all costs and expenses, including reasonable attorneys’ fees
and costs, whether arising from, or by reason of, or related to any of the following (i) any Tenant
Risk or (ii) any breach, violation or non-performance of any term or condition on the part of the
Tenant under this Addendum “1,” including any violation by the Tenant, or of the ATM, of any
applicable law, rule, regulation, ordinance or order, including but not limited to the ADA. The
provisions of this paragraph 6 shall survive the expiration or sooner termination of the Lease.
ADDENDUM 1
ADDENDUM “2”
Sign Rights
1. Sign. Subject to the terms and provisions hereof, in addition to any other
signage rights granted to the Tenant in the Lease, the Landlord grants to the Tenant and the
Tenant shall have, at no additional cost to the Tenant except as set forth herein, the exclusive
right, from July 1, 2012, through the Term of the Lease, to place, install, operate (including
illumination) and maintain the Tenant’s desired signage in those locations on the south facade and
north facade of the top of the Building, as designated and depicted in Attachment “A” to Addendum
“2” (collectively, the “Sign”). Electrical power for the Sign shall be sub-metered at no
cost to the Landlord. The Tenant shall be solely responsible for the cost of any such electrical
meter and power and shall reimburse the Landlord monthly in arrears for the actual cost of the
electric usage of such Sign, no later than thirty (30) days from the date of such invoice.
2. Permitted Signage.
(a) A preliminary rendering of the Sign and specifications for construction and installation
are attached to this Addendum “2” as Attachment “A” (which signage rendering and specifications the
Landlord hereby generally approves, subject to the provisions set forth below). Following the
Effective Date, the Tenant may proceed with final design of the Sign, including the appearance,
location, size, weight and design plans (the “Sign Specifications”), which Sign Specifications
shall then be submitted to the Landlord for its review and approval (the “Landlord Approval”), and
the Landlord shall within ten (10) Business Days after receipt of the Sign Specifications approve
the design in writing or specify in writing any requested changes to be made to the Sign
Specifications. The Landlord agrees that its approval shall not be unreasonably withheld, delayed
or conditioned, and any disapproval shall be based on reasonable standards regarding safety and
integrity of the Building. The Tenant shall then submit such final design and the Sign
Specifications, as amended by the Landlord’s comments, to all applicable bodies and government
agencies for Governmental Approval.
(b) The Sign and the installation thereof (or any subsequent replacement) shall conform at the
time of installation to all federal, state and local laws, zoning and building codes, and
ordinances. The Landlord acknowledges that the Sign may be part of the entire Sign package to be
submitted for governmental approval and the Landlord agrees that the Tenant shall have the
authority to make minor and non-substantial final changes to the Sign Specifications to satisfy
governmental authorities so long as the color, materials, weight and design integrity of the Sign
are preserved. The Tenant shall be responsible, at its sole cost and expense, to obtain all
permits and approvals required from applicable governmental agencies necessary for installation and
display for the Sign. The Tenant hereby represents and warrants to the Landlord that it is the
lawful owner of any names, logos or service marks to be used in the Sign.
(c) After the date on which the Tenant shall have received all the required government
approvals but no earlier than July 1, 2012, the Tenant may proceed at the Tenant’s sole cost
and expense to complete construction and installation of the Sign, subject to the terms
hereof. All design, installation, hoisting, construction and/or work performed in connection with
ADDENDUM 2
installation of the Sign on the Building exterior (the “Sign Work”) shall be performed by
the Tenant or the Tenant’s agents and contractors at the Tenant’s sole cost and expense. The
Tenant acknowledges and agrees that the Sign Work includes the Tenant’s obligation to remove and
dispose of the existing AT&T signage on the top of the Building at the Tenant’s sole cost and
expense, which shall include shredding, cutting and demolition of the AT&T sign so that such sign
remnants shall be unrecognizable as AT&T’s logo. Landlord represents and warrants to
Tenant that as of the Effective Date, Landlord has entered into a binding contract with AT&T (the
“AT&T Contract”) in form previously approved by Mortgagee to remove the existing sign(s) from the
top of the Building (the “Sign Removal”), subject only to (i) the payment of [**REDACTED**] by Landlord to AT&T (the “Sign Removal Payment”), and (ii) additional rental
concessions that will be automatically deducted by AT&T from its current rental obligations.
Landlord further represents and warrants to Tenant that, other than the Sign Removal Payment, there
are no conditions or obligations to be performed by Landlord under the AT&T Contract or otherwise
in order for Landlord to provide Tenant with the right to perform the Sign Removal and install the
Sign in accordance with this Addendum 2. Landlord agrees that as of the Execution Date, Landlord
has funded the Sign Removal Payment with its Mortgagee and that such Mortgagee has agreed to pay
the Sign Removal Payment to AT&T from existing loan reserves.
(d) Before commencing the Sign Work or any work thereafter, any contractor or subcontractor
engaged by the Tenant to accomplish the Sign Work shall provide to the Landlord certificates of
liability insurance (and a certified copy of the underlying policies if requested) written on
companies reasonably acceptable to the Landlord showing that such contractor or subcontractor is
fully insured for general liability and for xxxxxxx’x compensation insurance, at least in the
minimum amounts required under the Lease, naming the Landlord and the Tenant as additional insured
parties.
3. Exclusivity.
(a) Subject to the terms, limitations and provisions hereof, during the Term of this Lease the
Tenant shall be the exclusive party with the exclusive right to place, install, operate and
maintain the Sign or any other sign on the top of the Building (the “Sign Exclusivity”) so long as
the Tenant leases at least two hundred six thousand five hundred (206,500)
square feet of Rentable Area (the “Minimum Leased Area”) at all times under the Lease. In
order to maintain the Sign Exclusivity, either (i) the Minimum Leased Area shall be leased at
all times by the Tenant, irrespective of whether or not the Tenant has exercised
any of its rights contained in the Lease with respect to the expansion, the FROR, option rights or
Contraction Rights, and the Tenant’s exercise of any and all such rights, and the quantity of
square feet in the Rentable Area encompassed within the Premises shall be the resulting number of
square feet contained in the Rentable Area for determination of the Minimum Leased Area, or (ii)
the Tenant shall pay the Sign Rent Payment as set forth in Section 3(b) hereinbelow.
(b) At all times after the Tenant first leases less than the Minimum Leased Area (the “Sign
Rent Trigger Date”), if the Tenant desires to maintain the signage rights as set forth herein, then
on the Sign Rent Trigger Date and on each twelve (12) month anniversary date thereafter,
the Tenant shall pay annually in advance the sum of [**REDACTED**]
ADDENDUM 2
for the right to continue to enjoy the right to locate and place the
Sign, subject to the provisions herein (the “Sign Rent Payment”). In the event that the Tenant
leases less than the Minimum Leased Area then, provided the Tenant complies with its obligations to
timely pay the Sign Rent Payment to the Landlord, the Tenant shall retain its Sign
Exclusivity.
(c) Notwithstanding the Tenant’s rights as set forth in Section 3(b) hereinabove, if during
the Term of the Lease (i) the Tenant is leasing less than the Minimum Leased Area, (ii)
the Landlord enters into a lease with another tenant of the Building (the “Subsequent Tenant”)
for space in the Building consisting of more than two hundred sixty-nine thousand one hundred
sixty-eight (269,168) square feet of Rentable Area (the “Subsequent Tenant Threshold”), and
(iii) the Landlord grants such Subsequent Tenant signage rights on any façade at
the top of the Building (or on the top of the Building), then the Landlord may terminate the
Tenant’s right to locate and maintain the Sign on the top of the Building upon written notice to
the Tenant (the “Termination Notice”) and in such event, provided that the Tenant is
Without Default, the Landlord, shall be responsible for the removal of the Tenant’s Sign. Should
the Sign(s) be damaged or destroyed, then the Landlord shall be responsible to promptly restore any
such casualty, except as may be otherwise provided by this Lease.
(d) Subject to the foregoing provisions, at any time that the Landlord may elect to terminate
the Tenant’s rights to locate the Sign on the Building, the Landlord shall provide the Tenant the
Termination Notice, and the Landlord shall remove the Sign from the Building within sixty (60) days
of receipt of such Termination Notice. After the Landlord’s Termination Notice to the Tenant, then
at such time as the Landlord has fully removed the Sign in compliance with this Agreement, the
Landlord shall forthwith pay over to the Tenant the Un-Amortized Portion, if any, of the Sign Rent
Payment paid in advance. For purposes hereof, the “Un-Amortized Portion” shall be an amount equal
to 1/365th of the Sign Rent Payment then in effect multiplied by the greater of the number of days
remaining in the annual period then in effect (measured from the date the Sign is actually
removed).
4. Signage Removal. Except as set forth in Section 3(c), upon the earlier of (i) the
Tenant’s failure to lease the Minimum Leased Area and the Tenant’s failure to timely pay the Sign
Rent Payment, (ii) upon the expiration or early termination of the Lease, whether by default or
passage of time, or (iii) upon the Tenant’s election of its Termination Right (as set forth in
Section 3.09 of the Lease) (a “Termination Event”) the Tenant, at its sole cost and expense, shall
remove the Sign and, in a good and workmanlike manner, restore the areas containing such Sign to
the condition existing immediately prior to installation of the Sign, ordinary wear and tear and
casualty excepted, no later than sixty (60) days after such Termination Event.
5. Maintenance and Reconstruction. The Tenant, at its sole costs and expense, shall
perform all maintenance, repair, replacement, construction or removal work on the Sign
including installation, lettering and lighting equipment, transformers and related equipment. The
Tenant shall keep the Sign in first class condition, working order and state of repair at all times
and all work related to the Sign must be coordinated with the Landlord. In no event shall
any agent, contractor, vendor, laborer or other party employed by the Tenant to fabricate, install
repair or maintain the Sign have any right to lien the interest of the Landlord in the
Development.
ADDENDUM 2
6. Construction, Protocols. All the installation and construction in connection with
the Sign Work shall be performed by the Tenant or the Tenant’s agents and contractors at the
Tenant’s sole cost and expense, including all related design, manufacturer, connection, placement,
construction, hoisting, electrical service, electrical meter and similar charges. The scheduling
of any removal or installation of the existing AT&T signage on the Building or the Sign (or any
replacement thereof) shall (i) be accomplished during Saturdays or Sundays to promote public safety
and minimize disruption of traffic in the downtown area of Jacksonville, Florida and (ii) be
coordinated with the Landlord so as not to interfere with other scheduled activities at the
Development. Any such removal or installations shall be subject to the Landlord’s prior written
approval, which approval shall not be unreasonably withheld , delayed or conditioned.
7. No Liability; Indemnification. Notwithstanding any provision of this Addendum “2”
to the contrary, neither the Landlord nor its members, officers, directors, managers, employees or
agents shall be liable to the Tenant or its members, officers, directors, managers, employees,
agents or invitees, for any loss or damage to the Sign, and the Tenant hereby expressly assumes all
risk and damage to the Sign, either proximate or remote, unless due to the gross negligence
or willful misconduct of the Landlord, its members, officers, directors, managers, employees or
agents. The Landlord shall not be liable to the Tenant for any interference or intrusion in
electrical service with respect to the Sign unless due to gross negligence or willful misconduct of
the Landlord, its members, officers, directors, managers, employees or agents, and the Tenant
agrees that it is solely responsible to maintain the electrical line and service with respect to
the Sign. The Tenant agrees that the Tenant will indemnify and hold harmless the Landlord and its
members, officers, directors, managers, employees and agents of, from, and against all damages,
liabilities, suits, claims and actions of every kind with respect to the Sign arising out of the
Tenant’s use or exercise of its rights under this Addendum “2”, and all costs and expenses,
including reasonable attorneys’ fees and costs, whether arising from, or by reason of, or related
to any breach, violation or non-performance of any term or condition on the part of the Tenant
under this Addendum “2,” including any violation by the Tenant, or of the Sign, of any applicable
law, rule, regulation, ordinance or order. The provisions of this paragraph 7 shall survive the
expiration or sooner termination of the Lease.
8. Rebranding. The Tenant shall not be required to obtain the Landlord’s approval to
rebrand the Tenant’s Sign if the Tenant changes its name or logo designs or undertakes any
other rebranding resulting in a change in the name of the Tenant (including, but not limited to any
sale or merger of the Tenant) so long as such rebranding is in keeping with the character of
the Building as a Class A office building. In the event that the Tenant changes its name
or logo designs and rebrands the Tenant’s Sign, and the Landlord, in its reasonable discretion
taking into consideration all then existing signage standards of the Tenant, determines that such
rebranding is not in keeping with the character of the Building as a Class A office
building, then the Tenant and the Landlord shall work together in good faith to resolve such
matter.
9. Insurance. The Sign shall remain the sole personal property of the Tenant during
the Term of this Lease (or after any earlier termination if Tenant elects to remove such Sign). In
the event the Tenant’s Sign is damaged or destroyed by any casualty, the Tenant shall
at its sole
ADDENDUM 2
election, remove, repair, replace or reinstall the Tenant’s Sign at the
Tenant’s sole cost and expense on the same terms and conditions as set forth herein. Should
Applicable Law from time to time in effect preclude the installation, construction or re-construction or replacement of the
Tenant’s Sign, such circumstances shall be the risk of the Tenant and the Landlord shall have no
liability whatsoever associated with such circumstances, unless due to the gross negligence or
willful misconduct of the Landlord.
10. Additional Construction and Signage. Except as set forth in this Addendum “2”,
nothing contained in this Addendum “2” shall be interpreted to restrict the Landlord’s ability to
construct or license the installation of additional improvements on or affix or place other signs
on any portion of the Building or any other location on or about the Building or the Development
ADDENDUM 2
ATTACHMENT “A” TO ADDENDUM “2”
(Top of Building Signage)
ADDENDUM 2
ADDENDUM “3”
(Street Level Signage)
ADDENDUM 3
ADDENDUM 3
(Street Level Signage)
ADDENDUM 3
ADDENDUM 3
(Street Level Signage)
ADDENDUM 3
ADDENDUM 3
(Monument Signage)
ADDENDUM 3
