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EXHIBIT 10.6
LEASE AGREEMENT
THIS LEASE, made as of the 31st day of January, 1992 by VIA XXXXXX ASSOCIATES, a
Florida general partnership, herein called "Landlord, and IVY MANAGEMENT, INC.,
a Massachusetts corporation authorized to do business in the State of Florida,
herein called "Tenant".
LEASE SUMMARY
a) Landlord's Mailing
Address: X.X. Xxxxxx 00
Xxxx Xxxxx, Xxxxxxx 00000
b) Tenant Suite No.: Suite 201
c) Tenant's Lease Address: Suite 201
000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
d) Tenant's Billing
Address: Suite 201
000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
e) Tenant's Telephone No.: Business (000) 000-0000
f) Tenant's Name (including
state of formation
or incorporation): IVY MANAGEMENT, INC., a
Massachusetts corporation
g) Tenant's Trade Name: IVY MANAGEMENT, INC.
h) Resident Manager or
Key Person: Xxxx Xxxxxx
i) Guarantor(s): MACKENZIE INVESTMENT MANAGEMENT
INC., a Delaware corporation
j) Lease Commencement Date: May 1, 1992
k) Lease Expiration Date: September 30, 2001
l) Amendments: See Exhibit Two attached
hereto and made a part
hereof
m) Expansion Provisions: None
n) GLA in Premises: 7,854 sq. ft.
o) Tenant Improvements: See Exhibit Two, Paragraph 2
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p) Minimum Rent:
Fixed
Lease Minimum Monthly
Year $/Sq. Ft. Annual Rent Installment
---- --------- ----------- -----------
1 $13.32 $ 79,920.00* $ 6,660.00
2 13.32 79,920.00* 6,660.00
3 13.99 109,877.46 9,156.46
4 14.69 115,375.26 9,614.61
5 15.42 121,108.68 10,092.39
6 16.19 127,156.26 10,596.36
7 17.00 133,518.00 11,126.50
8 17.85 140,193.90 11,682.83
9 18.74 147,183.96 12,265.33
10 19.68 154,566.72 12,880.56
*Lease Years 1 and 2 the Fixed Minimum Annual Rent has been calculated
on an assumed square footage of 6,000 sq. ft. Beginning in Lease Year 3
the GLA provided for in subparagraph (n) above is applicable for
calculating the Annual Rent.
q) Permitted Use: General offices providing
financial, insurance, accounting
and/or legal services
r) Consumer Price Index: None; and N/A
s) Security Deposit: See Exhibit Two, Paragraph 6
t) Other Sums Payable: N/A
u) ESTIMATED Annual
Expenses (First Year):
Fixed Minimum Annual Rent: $ 79,920.00
Building Operating Costs;
Via Xxxxxx Financial Plaza Operating Costs;
Via Xxxxxx Master Facilities Operating Costs: 40,327.32
Sales Tax: 7,214.84
Estimated Annual Total 1st Year: $127,462.16
THE INFORMATION SET FORTH IN THIS SECTION (u) HAS BEEN ESTIMATED BASED
ON LANDLORD'S GOOD FAITH ATTEMPT TO CALCULATE SUCH SUMS FOR DISCLOSURE
PURPOSES ONLY. THE LANDLORD DISCLAIMS ANY RESPONSIBILITY FOR THE
ACCURACY OF THE INFORMATION AND DOES NOT WARRANT OR REPRESENT TO TENANT
THAT ANY ESTIMATE IS ACCURATE. THE TENANT SHOULD ENGAGE AND RELY ONLY
UPON INDEPENDENT REAL ESTATE PROFESSIONALS EMPLOYED BY TENANT TO
ASCERTAIN THE ACCURACY OF THESE ESTIMATES.
v) Remarks: NONE
THE FOREGOING LEASE SUMMARY IS AN
INTEGRAL PART OF THIS LEASE AGREEMENT
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ARTICLE 1
Basic Lease Provisions
SECTION 1.01 Leased Premises.
In consideration of the rents, covenants and agreements hereafter
reserved and contained on the part of the Tenant to be observed and performed,
the Landlord demises and leases to the Tenant, and Tenant rents from Landlord,
those certain premises now existing or hereafter to be erected in VIA XXXXXX
FINANCIAL PLAZA which premises is identified as Suite No. 201, 798 S. Federal
Highway, containing an area of 7,854 square feet (which area has been
established in accordance with the criteria set forth on Exhibit "J" attached
hereto and made a part hereof), herein called the "Leased premises". The
boundaries and location of the Leased Premises are outlined and identified on
the Building Plan marked Exhibit "A" attached hereto and made a part hereof.
Dimensions for all purposes shall be measured in accordance with the criteria
set forth on Exhibit "J" from the centerline of interior walls or from the
exterior face of exterior walls. The Leased premises are located in VIA XXXXXX
FINANCIAL PLAZA on the real property described in Exhibit "B" attached hereto
and made a part hereof. The boundaries of the VIA XXXXXX FINANCIAL PLAZA (which
boundaries may be modified or amended to increase or decrease the area) are
identified on Exhibit "One", the site plan of VIA XXXXXX FINANCIAL PLAZA,
attached hereto and made a part hereof.
SECTION 1.02 Use of Additional Areas.
The use and occupation by the Tenant of the Leased Premises shall
include the non-exclusive use in common with others entitled thereto of the
common areas, employees' parking areas, service roads, malls, loading
facilities, sidewalks and customer car parking areas as such common areas now
exist or as such common areas may hereafter be constructed upon or within the
real property described in Exhibit "B", and other facilities as may be
designated from time to time by the Landlord, subject however to the terms and
conditions of this Lease and to rules and regulations for the use thereof
(including use charges and parking validation procedures) as prescribed from
time to time by the Landlord.
SECTION 1.03 Commencement and Length of Term.
The term of this Lease shall commence on the date set forth in Section
(j) of the Lease Summary (or the date upon which Tenant opens for business in
the Leased premises, if earlier than May 1, 1992), and shall continue until the
expiration date as set forth in Section (k) of the Lease Summary.
SECTION 1.04 Commencement of Rent.
The Tenant's obligation to pay rent shall commence on the earliest of
the following dates: (a) the 1st day of May, 1992, and (b) the date upon which
Tenant opens for business in the Leased Premises. Should the term of this Lease
and the Tenant's obligation to pay rent commence on a day other than the first
day of a month, then the term of this Lease shall continue in full force and
effect for the period from the commencement date hereof to the first day of the
calendar month next succeeding, plus the period of the term set forth in Section
1.03 hereof; provided, however, that the Tenant shall pay rent for the
fractional month (from the Commencement Date to and including the last day of
the fractional month) on a per diem basis (the per diem being calculated on the
basis of a thirty day month) and the rent for the fractional month shall be
payable on the commencement date
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and thereafter the fixed minimum rent shall be paid in equal monthly
installments on the first day each and every month in advance. All other monthly
payments hereunder shall likewise be calculated and paid on such per diem basis
for any fractional month.
SECTION 1.05 Failure of Tenant to Open.
In the event that Tenant fails to take possession and to open the Leased
Premises for business fully improved, fixtured and staffed or fails to commence
to do business on the Lease Commencement Date, then Tenant shall be in default
hereunder and the Landlord shall have the right to enforce all remedies of
default as provided in this Lease.
SECTION 1.06 Obligations of Tenant Before Lease Term Begins.
Tenant shall observe and perform all of its obligations under this Lease
(except its obligations to operate and to pay Fixed Minimum Rent, its pro rata
share of VIA XXXXXX FINANCIAL PLAZA's Operating Costs provided for in Section
2.06, and its pro rata share of real estate taxes as provided for in Section
2.06) from the date upon which the Leased Premises are delivered to Tenant for
its work until the Commencement Date of the Lease Term in the same manner as
though the Lease Term began when the Leased Premises were delivered to Tenant.
ARTICLE II
Rent
SECTION 2.01 Fixed Minimum Annual Rent.
(a) Tenant agrees to pay Landlord, subject, however to adjustment (if
any) as herein provided, as fixed minimum annual rent the sum or sums set forth
in Section (p) of the Lease Summary (hereinafter referred to as "Fixed Minimum
Annual Rent"). The Fixed Minimum Annual Rent during the term of this Lease shall
be payable by the Tenant in equal monthly installments, on or before the first
day of each month in advance, at the office of the Landlord as set forth in
Section (a) of the Lease Summary, or at such other place designated by Landlord
in writing, without notice or demand, and without any deduction, counterclaim,
or set-off whatsoever.
(b) In the event that at any time any personal or corporate check of
Tenant should be returned marked "insufficient funds" or should not be promptly
paid by the drawee bank for any other reason (excepting and error made by the
drawee bank and acknowledged by the drawee bank in writing), Landlord may,
without prejudice to any other right or remedy accruing to Landlord under this
Lease, require that all future rental payments are to be made on or before the
due date by cash, cashier's check or money order.
SECTION 2.02 Cost of Living Increases in Fixed Minimum Annual Rent.
The initial term of the Lease is not subject to the provisions of this
Section 2.02, however, if any option term is exercised, then in the case of any
option terms, if any, commencing one (1) year from the first day of the option
term (the Adjustment Date), and annually thereafter, the Fixed Minimum Annual
Rent shall be adjusted (increased but not decreased) by the following
mathematical formula:
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C
---
A = [(B x D)]
A is the Fixed Minimum Annual Rent for the year following the Adjustment
Date (the Adjusted Fixed Minimum Annual Rent).
B is the Fixed Minimum Annual Rent as may be subsequently established in
accordance with a fair market rental value review provision contained in
this Lease, if any, or is the Fixed Minimum Annual Rent as of the
Commencement Date of any option term, as the case may be.
C is the Index for two (2) months preceding the month in which the
Adjustment Date occurs.
D is the Commencement Date Index of any option term.
The formula shall adjust the Fixed Minimum Annual Rent as of the
Commencement Date of any option term by the product obtained by multiplying the
Fixed Minimum Annual Rent times a fraction, the numerator of which shall be the
Consumer Price Index for Urban Wage Earners and Clerical Workers (U.S. City
Average: All Items), issued by the Bureau of Labor Statistics of the U.S.
Department of Labor, using the year 1982-1984 as a base of 100, (the "Index")
for the month immediately preceding the month in which the Adjustment Date
occurs, and the denominator shall be the Commencement Date Index of the option
term. The result of this calculation shall be the Adjusted Fixed Minimum Annual
Rent for the year following the Adjustment Date.
In the event that the Index herein referred to ceases to be published
during the term of this Lease, or if a substantial change is made in the method
of establishing such Index, then the determination of the adjustment in the
Fixed Minimum Annual Rent shall be made with the use of such conversion factor,
formula or table as may be published by the Bureau of Labor Statistics, or if
none is available, the parties shall accept comparable statistics on the cost of
living in the United States, as shall then be computed and published by an
agency of the United States, or if none, by a respected financial periodical
selected by Landlord.
In the event that Tenant elects to exercise its option(s) (if any) to
extend this Lease, the cost of living increase in the Fixed Minimum Annual Rent
for the option period(s) shall be computed and applied according to the same
procedure described hereinabove for the initial term of the Lease, except that
the Fixed Minimum Annual Rent shall be the amount established in accordance with
the terms of any option provisions (if any) attached to this Lease.
SECTION 2.03 Sales or Use Tax or Excise Tax.
Tenant shall also pay, as additional rent, all sales or use or excise
tax imposed, levied or assessed against the rent or any other charge or payment
required herein by any governmental authority having jurisdiction thereover,
even though the taxing statute or ordinance may purport to impose such sales tax
against the Landlord. The payment of sales tax shall be made by Tenant on a
monthly basis, concurrently with payment of the Fixed Minimum Annual Rent.
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SECTION 2.04 Control of Common Areas by Landlord.
All areas within the exterior boundaries of VIA XXXXXX FINANCIAL PLAZA
which are now or hereafter held for lease or occupation by the Landlord, or used
by other persons entitled to occupy floor space in VIA XXXXXX FINANCIAL PLAZA,
including, without limitation, all automobile parking areas, driveways, entrance
and exits thereto, and other facilities furnished by Landlord in or near VIA
XXXXXX FINANCIAL PLAZA, including employee parking areas, the truck way or ways,
loading docks, package pick-up stations, pedestrian sidewalks and ramps,
landscaped areas, exterior stairways, and other areas and improvements provided
by Landlord for the general use, in common, of tenants, their officers, agents,
employees and customers, ("Common Areas"), shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right,
but not the obligation, to construct, maintain and operate lighting facilities
on all said areas and improvements, to police the same, from time to time to
change the area, level, location and arrangement of parking areas and other
facilities herein above referred to; to assign parking spaces to the Tenants; to
allocate (in Landlord's sole and absolute discretion) covered and uncovered
parking to the Tenant; to reserve parking spaces for the exclusive use of a
specific tenant; to restrict parking by tenants, their officers, agents and
employees to employee parking areas; to require tenants, their officers, agents
and employees to provide vehicle license numbers and to use parking decals or
other reasonable parking identification procedures, and to enforce parking
charges (by operation of meters or otherwise), with appropriate provisions for
free parking ticket validating, or in lieu thereof, to apply the net proceeds
from such charges, as follows: (i) the cost of maintaining and operating the
parking facilities; and (ii) the payment of the cost for constructing the
parking facilities and amortization thereof; and (iii) any remaining receipts
shall be received as operating profit of the Landlord in consideration for
providing the parking facilities and operation thereof.
Landlord shall have the right to close all or any portion of said areas
or facilities to such extent as may, in the opinion of Landlord's counsel, be
legally sufficient to prevent a dedication thereof or the accrual of any rights
to any person or the public therein, to close temporarily all or any portion of
the parking areas or facilities, to discourage non-customer parking; and to do
and perform such other acts in and to said areas and improvements as, in the use
of good business judgment, the Landlord shall determine to be advisable with a
view to the improvement of the convenience and use thereof by tenants, their
officers, agents, employees and customers. Landlord shall keep said Common Areas
clean and in good repair and available for the purposes for which they are
intended. Landlord shall have the full right and authority to employ all
personnel and to make all rules and regulations pertaining to and necessary for
the proper operation and maintenance of the Common Areas and facilities.
SECTION 2.05 License.
All Common Areas and facilities not within the Leased Premises, which
Tenant may be permitted to use and occupy, are hereby authorized to be used and
occupied under a revocable license, and if any such license be revoked, or if
the amount of such areas be diminished, Landlord shall not be subject to any
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation or diminution of such areas be
deemed constructive or actual eviction. Tenant shall have reasonable ingress and
egress to the Leased premises.
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SECTION 2.06 Tenant to Bear Pro Rata Share of VIA XXXXXX
FINANCIAL PLAZA Operating Costs.
(a) In each Lease Year or partial Lease Year, as defined herein, Tenant
will pay to Landlord, in addition to the rental specified in Article II hereof,
as further additional rent, a proportion of: (i) the Building Operating Costs,
as hereinafter defined; (ii) VIA XXXXXX FINANCIAL PLAZA's Operating Costs, as
hereinafter defined; and (iii) Via Xxxxxx Master Facilities Operating Costs, as
hereinafter defined. Each of the proportionate cost components described above
shall be calculated by multiplying the total of each cost component by a
fraction, the numerator of which shall be the aggregate number of square feet
contained in the Leased Premises and the denominator of which shall be the
aggregate number of square feet of constructed building space in VIA XXXXXX
FINANCIAL PLAZA, as the same may exist from time to time and as calculated in
accordance with the provisions of Exhibit "J". Such payments shall be made as
provided under Section (u) of the Lease Summary and, thereafter, shall continue
as provided under Section 2.06(e).
"Lease Year" as used herein shall mean consecutive twelve-month
periods commencing on each January 1st during the term of this Lease. In the
event that the term of this Lease commences on a date other than January 1st, or
expires on a date other than December 31st, the first and last years shall be
partial lease years and in such case the first partial lease year shall commence
on the date of the commencement of the term of this Lease and expire on December
31st next following and the last partial lease year shall commence on the last
January 1st occurring during the term of this Lease and shall expire on the
expiration date of this Lease.
(b) "Building Operating Costs" as used herein means the total cost and
expense incurred in operating, maintaining and repairing the building identified
in Section (b) of the Lease Summary (hereinafter referred to as the "Building"),
together with improvements and common facilities, actually used or available for
use by Tenant and employees, agents, servants, customers and other invitees of
Tenant, excluding only items of expense commonly known and designated as debt
service. The Building Operating Costs shall specifically include, without
limitation the cost and expense incurred in operating, maintaining, repairing
and providing (i) property management, the annual cost of which shall not exceed
five percent (5%) of the net operating income (ii) gardening, landscaping and
irrigation, (iii) line painting and other parking facilities serving exclusively
the Building, (iv) all utility facilities and utility expenses and charges
serving exclusively the Building, (v) all common areas and common facilities,
serving exclusively the Building, (vi) sanitary control, removal of trash,
rubbish, garbage and other refuse from the common areas but not from any Leased
Premises, (vii) depreciation on machinery and equipment owned by Landlord or the
rental charges for such machinery and equipment, and the cost of personnel to
implement such services, (viii) personnel to direct parking and to police the
common facilities, including watchmen and security personnel, including payroll
and applicable payroll taxes, worker's compensation insurance and fringe
benefits, (ix) Landlord's insurance premiums on or in respect of the Building,
including, but not limited to public liability, property damage all risk perils,
rent and flood insurance, if carried by Landlord, (x) all ad valorem and real
estate taxes and special assessments for public betterments or improvements
levied or assessed by any lawful authority against the land, buildings and all
other improvements and betterments which are now or which hereafter become a
part of the Building, and (xi) personnel to maintain, repair and operate the
Building and Common Facilities. "Common Facilities" means all areas,
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space, parking facilities, equipment and special services used to operate
exclusively the Building or provided by Landlord for the common or joint use and
benefit of the occupants of the Building, their employees, agents, servants,
customers and other invitees, including without limitation, parking areas,
access roads, driveways, retaining walls, landscaped areas, truck serviceways,
loading docks, pedestrian malls, courts, stairs, ramps and sidewalks, washrooms,
and signs, wherever located, identifying the Building, or providing instruction
signage thereto.
The following items are expressly excluded from Building operating
Costs: (1) any capital expenditure, (2) costs for maintaining the roof and load
bearing walls, (3) executive salaries excepting that of the Property Manager,
(4) (4) consulting fees relating to capital expenditures, (5) market study fees,
(6) lease commissions and advertising costs, (7) initial landscaping costs, (8)
structural repairs and replacements, (9) any penalty or late charge incurred by
the Landlord as a result of the failure of the payment of taxes on its due date,
(10) any fee or interest charge resulting from the Landlord's refinancing of the
property, (11) money the Landlord must pay if Landlord defaults under a lease or
other agreement, (12) any legal fees to resolve disputes involving the Landlord
and any particular tenant, (13) any excessive amount the Landlord pays a
contractor or vendor, (14) costs incurred by the Landlord as a result of any new
construction in any subsequent phase of XXX XXXXXX XXXXXXXXX XXXXX, (00) any
ground rents as they result to ground leases.
(c) "VIA XXXXXX FINANCIAL PLAZA operating Costs" as used herein means
the total cost and expense incurred in operating, maintaining, and repairing VIA
XXXXXX FINANCIAL PLAZA's buildings and improvements and common facilities,
hereinafter defined, actually used or available for use by Tenant and employees,
agents, servants, customers and other invitees of Tenant, excluding only items
of expense commonly known and designated as debt service. The VIA XXXXXX
FINANCIAL PLAZA operating Costs shall specifically include, without limitation
the cost and expense incurred in operating, maintaining, repairing and providing
(i) property management, (ii) gardening, landscaping and irrigation, (iii) all
parking facilities, (iv) all utility facilities (including but not limited to
sewer lines and installations, water lines and installation, electrical lines
and facilities, and storm drainage facilities), and utility expenses and charges
for utility services, (v) sanitary control, removal of trash, rubbish, garbage
and other refuse from the common areas but not from any Leased Premises, (vi)
depreciation on machinery and equipment owned by Landlord or the rental charges
for such machinery and equipment, and the cost of personnel to implement such
services, (vii) the cost of personnel to direct parking and to police the common
facilities, including watchmen and security personnel, including payroll and
applicable payroll taxes, worker's compensation insurance and fringe benefits,
(viii) Landlord's insurance premiums on or in respect of VIA XXXXXX FINANCIAL
PLAZA, including, but not limited to public liability, property damage all risk
perils, rent and flood insurance, if carried by Landlord, (ix) all ad valorem
and real estate taxes and special assessments for public betterments or
improvements levied or assessed by any lawful authority against the land,
buildings and all other improvements and betterments which are now or which
hereafter become a part of VIA XXXXXX FINANCIAL PLAZA, (x) all common areas and
common facilities, and (xi) personnel to maintain, repair and operate VIA XXXXXX
FINANCIAL PLAZA including all of its Common Facilities. "Common Facilities"
means all areas, space, parking facilities, equipment and special services used
to operate VIA XXXXXX FINANCIAL PLAZA, or to provide services to each building
within VIA XXXXXX FINANCIAL PLAZA, or provided by Landlord for the common or
joint
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use and benefit of the occupants of VIA XXXXXX FINANCIAL PLAZA, their employees,
agents, servants, customers and other invitees, including without limitation,
parking areas, access roads, driveways, retaining walls, landscaped areas, truck
serviceways, loading docks, pedestrian malls, courts, stairs, ramps and
sidewalks, washrooms, private roads, utility services and installations, and
storm drainage installations and facilities, and signs (wherever located)
identifying VIA XXXXXX FINANCIAL PLAZA, or providing instruction signage
thereto. If Landlord exercises its right to invoke a paid parking program, then
all costs of operating the parking facilities included within the parking
program (to the extent paid for from receipts collected from the parking
program) shall be excluded from the VIA XXXXXX FINANCIAL PLAZA Operating Costs.
(d) "Via Xxxxxx Master Facilities Operating Costs" as used herein means
the total cost and expense in operating, repairing and maintaining the master
improvements and common facilities actually used or made available for use by
the tenants and employees, agents, servants, customers and other invitees of
Tenant excluding only items of expense commonly known and designated as debt
service. Via Xxxxxx Master Facilities Operating Costs shall specifically
include, without limitation the cost and expense incurred in operating,
maintaining, repairing and providing (i) property management, (ii) gardening,
landscaping and irrigation, (iii) all parking facilities, (iv) all on-site and
off-site utility facilities (including but not limited to sewer lines and
installations, water lines and installation, electrical lines and facilities,
and storm drainage systems, facilities and retention lakes and areas), and
utility expenses and charges for utility services, (v) sanitary control, removal
of trash, rubbish, garbage and other refuse from the common areas but not from
any Leased Premises, (vi) depreciation on machinery and equipment owned by
Landlord or the rental charges for such machinery and equipment, and the cost of
personnel to implement such services, (vii) the cost of personnel to direct
parking and to police the common facilities, including watchmen and security
personnel, including payroll and applicable payroll taxes, worker's compensation
insurance and fringe benefits, (viii) Landlord's insurance premiums on or in
respect of the Master Facilities, including, but not limited to public
liability, property damage all risk perils, rent and flood insurance, if carried
by Landlord, (ix) all ad valorem and real estate taxes and special assessments
for public betterments or improvements levied or assessed by any lawful
authority against the Master Facilities which now or hereafter service or become
a part of VIA XXXXXX FINANCIAL PLAZA, and (x) personnel to maintain, repair and
operate the Master Facilities. "Master Facilities" means all on-site or off-site
areas, space, parking facilities, equipment and special services used to operate
VIA XXXXXX FINANCIAL PLAZA, or to provide services to each building within VIA
XXXXXX FINANCIAL PLAZA, or provided by Landlord for the common or joint use and
benefit of the occupants of VIA XXXXXX FINANCIAL PLAZA, their employees, agents,
servants, customers and other invitees, including without limitation, parking
areas, access roads, driveways, retaining walls, landscaped areas, truck
serviceways, loading docks, pedestrian malls, courts, stairs, ramps and
sidewalks, washrooms, private roads, utility services and installations, and
storm drainage installations and facilities, and signs (wherever located)
identifying VIA XXXXXX FINANCIAL PLAZA, or providing instruction signage
thereto.
(e) Landlord shall estimate (i) the Building Operating Costs, and (ii)
the VIA XXXXXX FINANCIAL PLAZA Operating Costs, and (iii) the Via Xxxxxx Master
Facilities Operating Costs, referred to in this Section 2.06 and Tenant shall
pay onetwelfth (1/12) of the collective sum thereof (as provided for in
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subparagraph (a) above) monthly in advance, together with the payment of fixed
minimum rent. After the end of each Lease Year, Landlord shall furnish Tenant a
statement of the actual Building Operating Costs, VIA XXXXXX FINANCIAL PLAZA
Operating Costs, and the Via Xxxxxx Master Facilities Operating Costs, and there
shall be an adjustment between Landlord and Tenant, with payment to or repayment
by Landlord, as the case may require, to the end that Landlord shall receive the
entire amount of Tenant's annual share of the collective operating costs for
such period, or, at Landlord's option, any overpayment by Tenant shall be
credited on account of the next succeeding payment by Tenant of such collective
operating costs.
SECTION 2.07 Additional Rent.
In order to give Landlord a lien of equal priority with Landlord's lien
for rent, and for no other purpose, any and all sums of money or charges
required to be paid by Tenant under this Lease, whether or not the same be so
designated, shall be considered "Additional Rent". If such amounts or charges
are not paid at the time provided in this Lease, they shall nevertheless, if not
paid when due, be collectible as Additional Rent with the next installment of
rent thereafter falling due hereunder, but nothing herein contained shall be
deemed to suspend or delay the payment of any amount of money or charges as the
same becomes due and payable hereunder, or limit any other remedy of the
Landlord.
ARTICLE III
Construction of Leased Premises
SECTION 3.01 Landlord's Work.
Landlord agrees that it has constructed (subject to the conditions and
limitations set forth in the Individual Development Approval DDRI XXX NO. CRP
88-4 issued pursuant to the Boca Raton Community Redevelopment Area Downtown
Development of Regional Impact Development Order), at its own expense the office
building, in accordance with the provision of Exhibit "C" attached hereto and
made a part hereof.
SECTION 3.02 Tenant's Work.
Tenant agrees, at its own cost and expense, to perform all other work,
more particularly described in Exhibit "D" annexed hereto, and on the outline
plans and specifications to be provided by Landlord, which is necessary to make
the Leased Premises conform with Tenant's plans to be approved by Landlord. All
tenant improvements and any other work performed by Tenant within the Leased
Premises shall be accomplished and completed in accordance with the Rules and
Regulations for Tenant Construction Work set forth in Exhibit "I" attached
hereto and made a part hereof. Within sixty (60) days after the execution of
this Lease, Tenant shall furnish Landlord, in advance of Tenant's commencement
of work, for Landlord's written approval, plans and specifications showing a
layout, fixturing plans, interior finish, and any work or equipment to be done
or installed by Tenant affecting any structural, mechanical or electrical part
of the Leased Premises or the building containing same. Landlord agrees it will
not unreasonably withhold such approval, it being the purpose of this
requirement that Tenant's Leased premises be fixtured and laid out so as not to
be a detriment to the other tenants in VIA XXXXXX FINANCIAL PLAZA and that
Tenant's work shall not be detrimental to Landlord's Building.
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SECTION 3.03 Acceptance by Tenant.
(a) If Landlord's work has been completed at the time this Lease is
executed, Tenant certifies that it has inspected the Leased Premises and accepts
same in its existing condition; in such event no repair work, alterations or
remodeling of the Leased premises shall be required to be done by Landlord as a
condition of this Lease or otherwise.
(b) If Landlord's work is not completed when this Lease is executed,
Tenant agrees that acceptance by Tenant of possession of the Leased Premises for
the purpose of construction of Tenant improvements or the issuance of a
Certificate of Occupancy for the Landlord's work will be deemed as an acceptance
of the Leased premises in its then existing condition.
SECTION 3.04 Changes and Additions to Building.
Landlord hereby reserves the right at any time to perform maintenance
operations and to make repairs, alterations, or additions, and to build
additional stories on the Building in which the premises are contained and to
build adjoining or annexed to any existing building. Landlord also reserves the
right to construct other buildings or improvements, including, but not limited
to, structures for motor vehicle parking and the enclosing and air conditioning
of improvements and common facilities in VIA XXXXXX FINANCIAL PLAZA from time to
time and to make alterations thereof or additions thereto and to build
additional stories on any such building or buildings and to build adjoining or
annexed to any existing building. Landlord hereby reserves for Landlord's
exclusive use (i) all air space above or surrounding the Leased Premises, (ii)
view rights and window vistas above or surrounding the Leased premises, and
(iii) landscaping and excavation of the improvements and common facilities in
VIA XXXXXX FINANCIAL PLAZA. Tenant agrees to cooperate with Landlord permitting
Landlord to accomplish any such maintenance, repairs, alterations, additions or
construction. Temporary or partial obstruction of access to the Leased Premises
or improvements and common facilities of VIA XXXXXX FINANCIAL PLAZA caused by
such construction shall not be a default of Landlord, provided that there shall
always be reasonable access.
SECTION 3.05 Right to Relocate.
The purpose of the site plan attached hereto as Exhibit "A" is to show
the approximate location of the various buildings, automobile parking areas, and
other Common Areas as shown on said site plan. Landlord reserves the right at
any time to add to or reduce or to relocate the various buildings, automobile
parking areas, and other Common Areas as shown on said site plan.
ARTICLE IV
Conduct of Business by Tenant
SECTION 4.01 Use of Premises.
Tenant shall use the Leased Premises solely for the purpose of
conducting business as provided in Section (q) of the Lease Summary and for no
other purpose.
SECTION 4.02 Occupancy of Premises.
Tenant shall occupy the Leased Premises without delay upon commencement
of the term of this Lease, except as provided for in Section 1.05 hereinbefore.
Tenant will not use or permit or
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suffer the use of the Leased Premises for any business or purpose other than
that stated above, and further agrees to conduct any business in the premises
under the name or trade name as set forth in Section (f) or (g) of the Lease
Summary and under no other name or trade name except such as may be first
approved by Landlord in writing which the Landlord will not unreasonably
withhold. The terms, conditions and rental conditions of this Lease have been
negotiated by the Landlord in reliance upon the specific permitted use of the
Tenant and the terms of this Lease would be reconsidered by Landlord if another
use of the Leased Premises were contemplated by the Tenant.
Notwithstanding the foregoing, in the event Tenant fails to
continuously conduct in the Leased Premises the business stated above and if
Tenant's failure to continuously conduct business arises as a result of the
relocation of its business to a location which is less than fifty (50) miles
from the Leased Premises, Landlord may, at Landlord's option, declare this Lease
to be in default.
SECTION 4.03 Use in Compliance With Regulations.
Tenant shall not at any time use or occupy the Leased Premises or the
Building, or suffer or permit anyone to use or occupy the Leased Premises, or do
anything in the Leased Premises or the Building, or suffer or permit anything to
be done in, brought into or kept on the Leased Premises, which in any manner in
the reasonable determination of Landlord (a) violates the Certificate of
Occupancy for the Leased Premises or for the Building, (b) causes or is liable
to cause injury to the Leased Premises or the Building or any equipment,
facilities or systems therein, (c) constitutes a violation of the laws and
requirements of any public authorities, including but not limited to any and all
zoning and land use regulations, or the requirements of insurance bodies, (d)
impairs or tends to impair the character, reputation or appearance of the
Building as a first-class office building, (e) impairs or tends to impair the
proper and economic maintenance, operation and repair of the Building and/or its
equipment, common facilities or systems, (f) annoys or inconveniences or tends
to annoy or inconvenience other tenants or occupants of the Building or VIA
XXXXXX FINANCIAL PLAZA, (g) constitutes a nuisance, public or private, or
violates any environmental law, ordinance or regulation, or (h) discharges
objectionable fumes, vapors or odors into the Building vents or otherwise in
such a manner as to offend or inconvenience the other tenants or occupants of
the Building. Landlord makes no representations or warranties whatsoever as to
whether the Tenant's intended or actual use of the Leased Premises will
constitute a violation of any laws or requirements of any public authorities,
including but not limited to any and all zoning and land use regulations.
ARTICLE V
Security Deposit
Landlord and Tenant agree that the Tenant is not required to provide
Landlord with a security deposit.
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ARTICLE VI
Tenant Improvements
SECTION 6.01 Installation by Tenant.
(a) All Tenant improvements and fixtures installed by Tenant shall be
new. Tenant shall not make or cause to be made any alterations, additions or
improvements other than decorating items or install or cause to be installed any
exterior signs, exterior lighting, plumbing fixtures, shades or awnings or make
any changes to the exterior of VIA XXXXXX FINANCIAL PLAZA without first
obtaining Landlord's written approval and consent. Tenant shall present to the
Landlord plans and specifications for such work at the time approval is sought,
and simultaneously demonstrate to Landlord that the proposed alterations comply
with local zoning and building codes. Tenant shall pay to Landlord the
reasonable costs of Landlord's architect and engineers to review such plans on
behalf of the Landlord. Tenant shall not commence work on any Tenant
improvements until Tenant has received from Landlord, Landlord's written
approval of Tenant's plans and specifications and Tenant shall have filed in the
Public Records of Palm Beach County, Florida a Notice of Commencement executed
by the Tenant in compliance with Florida Statutes 713.
(b) All construction work done by Tenant within the Leased premises
shall be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress (if any) and with the
transaction of business in VIA XXXXXX FINANCIAL PLAZA. Without limitation on the
generality of the foregoing, except for the initial construction of Tenant
improvements in a newly constructed Building, Landlord shall have the right to
require that such work be performed during hours when VIA XXXXXX FINANCIAL PLAZA
is not open for business, and in accordance with other rules and regulations
which Landlord may, from time to time prescribe. Tenant agrees to indemnify
Landlord against and hold Landlord harmless from any loss, liability or damage,
resulting from such work, and Tenant shall, if requested by Landlord, furnish
bond or other security satisfactory to Landlord against any such loss, liability
or damage. Tenant shall be liable to Landlord for any damages resulting from
labor disputes, strikes or demonstrations resulting from Tenant's construction
or alteration work with the employment of non-union workers.
SECTION 6.02 Responsibility of Tenant.
All alterations, decorations, additions and improvements made by the
Tenant or made by the Landlord on the Tenant's behalf by agreement under this
Lease, shall remain the property of the Tenant for the term of this Lease, or
any extension or renewal thereof. Such alterations, decorations, additions and
improvements shall not be removed from the premises without prior consent in
writing from the Landlord. Upon expiration of this Lease, or any renewal term
thereof, the Landlord shall have the option of requiring the Tenant to remove
all such alterations, decorations, additions and improvements and restore the
Leased Premises as provided in Section 7.02 hereof. If the Tenant fails to
remove such alterations, decorations, additions and improvements and restore the
Leased premises, then such alterations, decorations, additions and improvements
shall become the property of the Landlord and in such event, should Landlord so
elect, Landlord may restore the premises to its original condition for which
cost, with allowance for ordinary wear and tear, Tenant shall be responsible and
shall pay promptly upon demand.
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SECTION 6.03 Tenant Shall Discharge All Liens.
Nothing contained in this Lease shall be construed as a consent on the
part of the Landlord to subject the estate of the Landlord to liability under
the Mechanic's Lien Law of the State of Florida, it being expressly understood
that the Landlord's estate shall not be subject to such liability. Tenant shall
strictly comply with the Mechanic's Lien Law of the State of Florida as set
forth in Florida Statutes Section 713. Prior to any contractor engaged by Tenant
to undertake improvements to the Leased Premises, Tenant shall notify the
contractor making any such improvements of the provisions of this paragraph and
such notification shall be in writing to the contractor (with a copy to the
Landlord) and such notice shall contain at a minimum a verbatim recitation of
the first two sentences of this Section 6.03. In the event that a mechanic's
claim of lien is filed against the property in connection with any work
performed by or on behalf of the Tenant, the Tenant shall satisfy such claim, or
shall transfer same to security, within ten (10) days from the date of notice to
tenant. In the event that the Tenant fails to satisfy or transfer such claim
within said ten (10) day period, the Landlord may do so and thereafter charge
the Tenant, as additional rent, all costs incurred by the Landlord in connection
with satisfaction or transfer of such claim, including attorneys' fees. Further,
the Tenant agrees to indemnify, defend and save the Landlord harmless from and
against any damage or loss incurred by the Landlord as a result of any such
mechanics' claim of lien. If so requested by the Landlord, the Tenant shall
execute a short form or memorandum of this Lease in the form set forth as
Exhibit "L" attached hereto, which may, in the Landlord's discretion be recorded
in the Public Records for the purpose of protecting the Landlord's estate from
mechanics' claims of lien, as provided in Florida Statutes Section 713.10. In
the event such short form or memorandum of lease is executed, the Tenant shall
simultaneously execute and deliver to the Landlord an instrument terminating the
Tenant's interest in the real property upon which the Leased Premises are
located, which instrument may be recorded by the Landlord at the expiration of
the term of this Lease, or such earlier termination hereof. Landlord has the
right to record the memorandum without execution by Tenant in the event Tenant
fails to execute the memorandum within seven (7) days of request. The security
deposit paid by the Tenant may be used by the Landlord for the satisfaction or
transfer of any mechanics' claim of lien, as provided in this Section. This
Section shall survive the termination of the Lease.
SECTION 6.04 Signs, Awnings and Canopies.
(a) Tenant will not place or permit to be placed or maintained on any
exterior door, wall or window of the Leased Premises of VIA XXXXXX FINANCIAL
PLAZA any sign, awnings or canopy, or advertising matter or other thing of any
kind, and will not place or maintain any decoration, letter or advertising
matter on the glass of any window or door, nor will any illuminated sign be
placed in the window display area of the Leased Premises without first obtaining
Landlord's written approval and consent which may be arbitrarily withheld.
(b) Tenant shall promptly erect a sign in accordance with the
specifications as outlined in Exhibit "E", within the area designated by the
Landlord. Tenant further agrees that such signs, awning, canopy, decoration,
lettering, advertising matter or other thing as may be approved shall be
maintained in good condition and repair at all times and shall conform to the
criteria established from time to time by Landlord for the VIA XXXXXX FINANCIAL
PLAZA in the exercise of its sole discretion.
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(c) Notwithstanding the provisions of subparagraphs (a) and (b) above,
the Tenant acknowledges that prior to the installation of any sign or other
informational material which may be approved by the Landlord, the Tenant shall
obtain all governmental approvals for the installation of such sign or
informational material from all governmental entities having jurisdiction over
the Leased Premises, including but not limited to, the city of Boca Raton. The
approval of the Landlord of any sign or informational material submitted by the
Tenant shall not be deemed an approval by any governmental entity and the Tenant
shall employ or engage professionals selected by the Tenant to obtain any and
all governmental approvals required prior to the installation of such sign or
informational material. Tenant acknowledges and agrees that all signs and
informational material must comply with the ordinances and codes of the city of
Boca Raton and any other governmental entities having jurisdiction over such
installation.
SECTION 6.05 Bonds.
Landlord shall have the right to require the Tenant to furnish a
performance bond or other security, in form satisfactory to Landlord, for the
prompt and faithful performance by Tenant of all work of Tenant where the
project cost will exceed Fifty Thousand Dollars ($50,000.00).
ARTICLE VII
Repairs and Maintenance of Leased Premises
SECTION 7.01 Responsibility of Landlord.
(a) Landlord agrees to repair and maintain in good order and condition
the roof, roof drains, outside walls, foundations and structural portions, both
interior and exterior, of the Leased Premises. There is excepted from the
preceding covenant, however, (i) repair or replacement of broken plate or window
glass (except in case of damage by fire or other casualty covered by Landlord's
fire and extended coverage policy); (ii) doors, door closure devices, window and
door frames, moldings, locks and hardware; (iii) repair of damage caused
directly or indirectly by the negligence of the Tenant, its employees, agents,
contractors, customers, invitees; and (iv) interior repainting and redecoration.
In no event, however, shall Landlord be liable for damages or injuries arising
from the failure to make said repairs, nor shall Landlord be liable for damages
or injuries arising from the failure to make said repairs, nor shall Landlord be
liable for damages or injuries arising from defective workmanship or materials
in making any such repairs. Tenant waives the provision of any law, now or
hereafter in effect or any right under common law, permitting Tenant to make
repairs at Landlord's expense. As to any item which Tenant believes requires
repair and maintenance and which is the responsibility of the Landlord herein,
Tenant shall provide Landlord with written notice of such maintenance and repair
items.
(b) Except as hereinabove provided in Subparagraph (a), Landlord shall
not be obligated or required to make any other repairs, and all other portions
of the Leased Premises shall be kept in good repair and condition by Tenant, and
at the end of the term of this Lease, Tenant shall deliver the Leased Premises
to Landlord in good repair and condition, reasonable wear and tear and damage
from fire and other casualty excepted.
(c) Neither Landlord nor Landlord's agents or servants shall be liable
for any damages caused by or growing out any
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breakage, leakage, getting out of order or defective condition of the electric
wiring, air conditioning or heating pipes or ducts and equipment, closets,
plumbing, appliances, sprinklers, other equipment, or other facilities serving
the Leased premises excepting in any case arising out of the negligence of the
Landlord or Landlord's agents or servants. Neither Landlord nor Landlord's
agents or servants shall be liable for any damages caused by, or growing out of
any defect in VIA XXXXXX FINANCIAL PLAZA or any part thereof, or in any building
attached or adjacent thereto or a part thereof, or in said Leased premises or a
part thereof, or caused by, or growing out of fire, rain, wind or other cause
excepting in any case arising out of the negligence of the Landlord or
Landlord's agents or servants.
SECTION 7.02 Responsibilities of Tenant.
(a) Without limiting the generality of the foregoing Subparagraph
7.01(a), Tenant agrees to repair and maintain in good order and condition the
non-structural interior portions of the Leased Premises, including the doors,
windows, plate and window glass, and floor covering, plumbing, heating, air
conditioning, electrical and sewage system, facilities and appliances. In those
instances where Tenant repair or maintenance is required as a result of the
Landlord's negligence or the negligence of Landlord's employees, then Landlord
shall reimburse Tenant for such repairs or maintenance. Tenant agrees with
respect to the heating and air conditioning system to comply with the terms of
the "Heating and Air Conditioning Maintenance Provision" which is attached
hereto as Exhibit "F" and made a part of the Lease by reference.
(b) Tenant will not install any equipment which exceeds the capacity of
the utility lines leading into the Leased premises or the Building of which the
Leased Premises constitute a portion.
(c) Tenant, its employees, or agents, shall not xxxx, paint, drill or in
any way deface any walls, ceilings, partitions, floors, wood, stone or ironwork
without Landlord's prior approval and written consent.
(d) Tenant shall comply with the requirements of all laws, orders,
ordinances and regulations of all governmental authorities and will not permit
any waste of property or same to be done and will take good care of the Leased
Premises at all times.
(e) If Tenant refuses or neglects to repair properly as required
hereunder and to the reasonable satisfaction of Landlord as soon as reasonably
possible after written demand, Landlord may make such repairs without liability
to Tenant for any loss or damage that may accrue to Tenant's merchandise,
fixtures, or other property, or to Tenant's business by reason thereof and upon
completion thereof, Tenant shall pay Landlord's cost for making such repairs,
plus twenty percent (20%) of such cost for overhead, upon presentation of the
xxxx therefor, as additional rent. Said xxxx shall include interest at the rate
of fifteen percent (15%) per annum on said cost from the date of completion of
repairs by Landlord until paid by Tenant. In the event the Landlord shall
undertake any maintenance or repair in the course of which it shall be
determined that such maintenance or repair work was made necessary by the
negligence or willful act of Tenant or any of its employees or agents or that
the maintenance or repair is, under the terms of this Lease, the responsibility
of Tenant, Tenant shall pay Landlord's costs therefor plus overhead and interest
as above provided in this Section.
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(f) At the expiration of the tenancy hereby created, Tenant shall
surrender the Leased Premises in the same condition as the Leased Premises were
in upon delivery of possession thereto under this Lease, reasonable wear and
tear excepted, and damage by unavoidable casualty excepted, and shall surrender
all keys for the Leased Premises to Landlord. Tenant shall remove all its trade
fixtures, leased equipment and any alterations or improvements which Landlord
requests to be removed (excluding those improvements which Landlord has
approved) before surrendering the premises as aforesaid and shall repair any
damage to the Leased Premises caused thereby. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of the Lease.
(g) Tenant shall at its own expense perform all janitorial and cleaning
services within the Leased Premises in order to keep same in a neat, clean and
orderly condition.
(h) Tenant shall give Landlord prompt written notice (and telephonic
notice in the case of an emergency) of any fire or damage occurring on or to the
Leased Premises.
(i) Tenant shall maintain and clean the Leased premises, including daily
trash removal, window cleaning, bathroom cleaning and other maintenance and
cleaning requirements as adopted from time to time by Landlord in accordance
with the Maintenance and Cleaning Standards For Tenants attached hereto and made
a part hereof as Exhibit "G".
ARTICLE VIII
Insurance and Indemnity
SECTION 8.01 Liability Insurance.
Tenant shall, during the entire term hereof, keep in full force and
effect bodily injury and property damage comprehensive public liability
insurance with respect to the Leased premises for the combined single coverage
of not less than $2,000,000.00 (hereinafter referred to as "Minimum Amount of
Coverage"). The foregoing Minimum Amount of Coverage shall be subject to
adjustment upward, but not downward, to reflect increases in the cost of living.
Landlord shall review the Minimum Amount of Coverage on each successive 5th
anniversary of the Commencement Date of this Lease (including any renewal term,
if any). The adjusted Minimum Amount of Coverage shall be determined by the
following formula which incorporates terms defined in Article II of this Lease:
C
New Minimum Amount = Minimum Amount of x = ---
of Coverage Coverage D
C is the Index for two (2) months preceding the month in which the
Adjustment Date occurs.
D is the Commencement Date Index set forth in Section (r) (2) of the
Lease Summary.
(b) In addition to the insurance provided for in subparagraph (a) above,
Tenant shall provide and maintain at Tenant's expense: (i) Workmen's
Compensation Insurance for the benefit of all employees entering upon the office
building as a result of or in connection with their employment by Tenant; (ii)
all other insurance required of Tenant, as an employer, pursuant to any
jurisdiction; and (iii) fire casualty and extended coverage insurance on
Tenant's fixtures, improvements and finishings, which policies of insurance
shall be in such amounts, in such forms and issued by such companies as are
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approved by Landlord and shall name Landlord and Tenant as their interests may
appear.
At all times during construction upon the Leased Premises, including
initial construction of the Leased Premises prior to the Lease Commencement Date
of this Lease and during any alteration of the Leased Premises, Tenant shall
obtain builder's risk insurance with such limits as Landlord shall from time to
time require, and any such policy of insurance shall name as the insured
thereunder Landlord and Tenant as their interests may appear.
(c) All policies obtained and maintained by Tenant under the terms of
this Lease shall name Landlord, any person, firms or corporations designated by
Landlord, and Tenant as insured, and shall contain a clause that the insurer
will not cancel or change the insurance without first giving the Landlord
fifteen (15) days prior written notice. The insurance shall be written by a
company approved by Landlord and a copy of the policy or a certificate of
insurance shall be delivered to Landlord prior to the commencement of the term
of this Lease, or such earlier date as may be required under the provisions of
this Lease. Nothing herein shall be considered to limit the liability of the
Tenant under this Lease.
SECTION 8.02 Plate Glass Insurance.
The replacement of any plate glass or window glass damaged or broken
from any cause whatsoever in and about the Leased Premises shall be Tenant's
responsibility. Tenant shall, during the entire term hereof, keep in full force
and effect a policy of plate glass insurance covering all the plate glass or
window glass of the Leased Premises, in amounts satisfactory to Landlord. The
policy shall name Landlord and any person, firm or corporation designated by
Landlord, and Tenant as insured, and shall contain a clause that the insurer
will not cancel or change the insurance without first giving the Landlord
fifteen (15) days prior written notice. The insurance shall be written by a
company approved by the Landlord and a copy of the policy or a certificate of
insurance shall be delivered to Landlord prior to the commencement of the term
of this Lease.
SECTION 8.03 Fire and Extended Coverage Insurance.
Tenant shall at all times during the term hereof, and at its cost and
expense, maintain in effect, policies of insurance covering its fixtures and
improvements, equipment, and goods located within the Leased Premises, in an
amount not less than eighty percent (80%) of their actual cash value, providing
protection against any peril including within the standard classification of
"Fire and Extended Coverage", together with insurance against sprinkler damage,
vandalism, and malicious mischief. The proceeds of such insurance, so long as
the Lease remains in effect, shall be used first to repair or replace the
fixtures and improvements within the Leased Premises.
SECTION 8.04 Increase in Fire Insurance Premium.
Tenant agrees that it will not keep, use, sell or offer for sale in or
upon the Leased Premises any article which may be prohibited by the standard
form of fire and extended risk insurance policy. Tenant agrees to pay any
increase in premiums for fire and extended coverage insurance that may be
charged during the term of this Lease on the amount of such insurance which may
be carried by Landlord on said premises or the building of which they are a
part, resulting from the type of article being located in the Leased Premises,
whether or not Landlord has consented to the same. In determining whether
increased premiums
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are the result of Tenant's use of the Leased Premises, a schedule issued by the
organization making the insurance rate on the Leased Premises, showing the
various components of such rate, shall be conclusive evidence of the several
items and charges which make up the fire insurance rate on the Leased Premises.
Tenant agrees to promptly make, at Tenant's cost, any repairs, alterations,
changes and/or improvements to equipment in the Leased Premises required by the
company issuing Landlord's fire insurance so as to avoid the cancellation of, or
the increase in premiums on, said insurance.
In the event Tenant's occupation and use of the Leased Premises causes
any increase of premium for the fire, boiler and/or casualty rates on the Leased
Premises or any part thereof above the rate for the least hazardous type of
occupancy legally permitted in the premises, the Tenant shall pay the additional
premium on the fire, boiler and/or casualty insurance policies by reason
thereof. The Tenant also shall pay in such event, any additional premium on the
rent insurance policy that may be carried by the Landlord for its protection
against rent loss through fire or other casualty. Bills for such additional
premiums shall be rendered by Landlord to Tenant at such times as Landlord may
elect and shall be due from, and payable by Tenant when rendered, and the amount
thereof shall be deemed to be additional rent.
SECTION 8.05 Indemnification of Landlord.
Neither (i) Landlord, (ii) any superior lessor or any superior mortgagee
of the Landlord, nor (iii) any partner, director, officer, agent, servant or
employee of Landlord, any superior lessor or any superior mortgagee, shall be
liable to Tenant for any loss, injury or damage to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss, unless caused by or resulting from the sole negligence of
Landlord, its agents, servants or employees in the operation or maintenance of
the Leased Premises or the buildings, improvements and common facilities of VIA
XXXXXX FINANCIAL PLAZA, without contributory negligence on the part of Tenant or
any of its subtenants or licensees or its or their employees, agents or
contractors. Further, neither (i) Landlord, (ii) any superior lessor or any
superior mortgagee of the Landlord, nor (iii) any partner, director, officer,
agent, servant or employee of Landlord, any superior lessor or any superior
mortgagee, shall be liable (a) for any such damage caused by other tenants or
persons in, upon or about the buildings, improvements and common facilities of
VIA XXXXXX FINANCIAL PLAZA, or caused by operations in construction of any
private, public or quasi-public work, or (b) for consequential damages arising
out of any loss of use of the Leased Premises or any equipment or facilities
therein by Tenant or any person claiming through or under Tenant.
Tenant shall indemnify and hold harmless Landlord and all superior
lessors and superior mortgagees and its and their respective partners,
directors, officers, agents and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of VIA XXXXXX
FINANCIAL PLAZA or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in or about the VIA
XXXXXX FINANCIAL PLAZA during the term of this Lease or during the period of
time, if any, prior to the Commencement Date that Tenant may have been given
access to the Leased Premises, (b) any act, omission or negligence of Tenant or
any of its subtenants or licensees or its or their partners, directors, offices,
agents, employees or contractors, (c) any accident, injury or damage whatever
(unless caused solely by Landlord's negligence) occurring in, at or upon the XXX
XXXXXX
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XXXXXXXXX XXXXX, xxx (x) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease; together with
all costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including, without limitation,
all attorneys' fees and expenses. In the event Landlord shall be made a party to
any litigation or proceeding commenced by or against Tenant, then Tenant shall
protect, indemnify and hold Landlord harmless and Tenant shall pay to Landlord
all costs, expenses and reasonable attorneys' fees (for both trial and appellate
levels) incurred or paid by Landlord in connection with such litigation or
proceeding. Tenant shall also pay all costs, expenses and reasonable attorney's
fees that may be incurred or paid by Landlord in enforcing the covenants and
agreements in this Lease.
SECTION 8.06 Waiver of Subrogation.
Tenant waives (unless said waiver should invalidate any such insurance)
its right to recover damages against Landlord for any reason whatsoever to the
extent Tenant recovers indemnity from its insurance carrier. Any insurance
policy procured by Tenant which does not name Landlord as a named insured shall,
if obtainable, contain an express waiver of any right of subrogation by the
insurance company against the Landlord.
Landlord waives (unless said waiver should invalidate any such
insurance) its right to recover damages against Tenant for any reason whatsoever
to the extent Landlord recovers indemnity from its insurance carrier. Any
insurance policy procured by Landlord which does not name Tenant as a named
insured shall, if obtainable, contain an express waiver of any right of
subrogation by the insurance company against the Tenant.
ARTICLE IX
Utilities
Tenant shall be solely responsible for and promptly pay all charges for
water, gas, electricity, sewer charges or trash removal (if any) or any other
utility used or consumed in the Leased Premises. To the extent that Landlord
supplies to the Leased Premises or to VIA XXXXXX FINANCIAL PLAZA water, gas,
electricity, sewer charges, trash removal, or any other utility used or consumed
in the Leased Premises or within VIA XXXXXX FINANCIAL PLAZA, the cost of such
services and utilities shall be included in the VIA XXXXXX FINANCIAL PLAZA
Operating Costs. In no event shall Landlord be liable for an interruption,
failure, or defect in the supply or character of any such utilities furnished to
the Leased Premises, improvements or common facilities of VIA XXXXXX FINANCIAL
PLAZA (including but not limited to water rationing and electrical power
brownouts and blackouts), or any act or omission of the public or private
utility serving VIA XXXXXX FINANCIAL PLAZA or for any other reason not
attributable to Landlord. Tenant will at all times comply with the rules,
regulations, terms and conditions applicable to service, equipment, wiring, and
requirements of the public or private utility supplying electricity to VIA
XXXXXX FINANCIAL PLAZA. In the event that, in Landlord's judgment, Tenant's
electrical requirements necessitate installation of additional risers, feeders
or other proper and necessary equipment, the same shall be installed by Landlord
at Tenant's sole expense, which shall be chargeable and collectible as
additional rent and paid with the next rental payment to Landlord after delivery
of an invoice to Tenant by the Landlord. Tenant shall also be required prior to
taking possession of the Leased Premises to pay to the Landlord any and all
water or sewer
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connection or meter charges for the Leased premises if the Landlord has been
required to pay such charges by any private or governmental authority having
jurisdiction thereover. Tenant specifically acknowledges that Landlord is not
the supplier of any utility services including but not limited to electrical
service, telephone service and water service, and the unavailability of such
services to the Leased premises due to blackout, moratorium, rationing or any
other reason will not constitute or form the basis of a right by Tenant to xxxxx
or adjust any rental payments due hereunder, the Tenant hereby assuming all
responsibility and risks for obtaining such services.
ARTICLE X
Attornment and Subordination
SECTION 10.01 Attornment.
In the event any proceedings are brought for the foreclosure of, or in
the event of exercise of the power of sale under any mortgage made by the
Landlord covering the Leased premises or in the event a deed is given in lieu of
foreclosure of any such mortgage, if requested to do so, Tenant shall attorn to
the purchaser or grantee in lieu of foreclosure upon any such foreclosure or
sale and recognize such purchaser or grantee in lieu of foreclosure as the
Landlord under this Lease.
SECTION 10.02 Subordination.
Tenant agrees that this Lease and the interest of Tenant therein shall
be, and the same hereby is made subject and subordinated at all times to all
covenants, restrictions, easements and other encumbrances now or hereafter
affecting the fee title of VIA XXXXXX FINANCIAL PLAZA and to all ground and
underlying leases and to any mortgage in any amounts and all advances made and
to be made thereon, which may now or hereafter be placed against or affect any
or all of the land and/or any or all of the buildings and improvements,
including the Leased Premises, now or at any time hereafter constituting a part
of VIA XXXXXX FINANCIAL PLAZA and/or any ground or underlying leases covering
same, and to all renewals, modifications, consolidations, participations,
replacements and extensions thereof. The term "Mortgages" as used herein shall
be deemed to include trust indentures and deeds of trust. The aforesaid
provisions shall be self-operative and no further instrument of subordination
shall be necessary unless required by any such ground or underlying lessors or
mortgagees. Should the Landlord or any ground or underlying lessors or
mortgagees desire confirmation of such subordination, then Tenant, within ten
(10) days following written request therefor, agrees to execute and deliver,
without charge, any and all documents (in form acceptable to Landlord and such
ground or underlying lessors or mortgagees) subordinating this Lease and the
Tenant's rights hereunder. However, should any such ground or underlying lessors
or any mortgagees request that this Lease be made superior, rather than
subordinate, to any such ground or underlying lease and/or mortgage, then
Tenant, within ten (10) days following Landlord's written request therefor,
agrees to execute and deliver, without charge, any and all documents (in form
acceptable to Landlord and such ground or underlying lessors or mortgagees)
effectuating such priority.
SECTION 10.03 Non-Disturbance.
Notwithstanding anything contained herein to the contrary, the foregoing
shall be expressly conditioned upon Tenant's
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receipt of a binding Non-Disturbance Agreement from all parties holding or
otherwise acquiring, now or in the future, any right, title, interest in or to
the Leased Premises or this Lease by virtue of any mortgage or deed of trust
superior to that of the Tenant in a form and content as set forth in Exhibit M
attached hereto and made a part hereof.
ARTICLE XI
Assignment and Subletting
SECTION 11.01 Consent Required.
Tenant shall not, whether voluntarily, involuntarily, or by operation of
law or otherwise, without the prior written consent of Landlord, (a) assign or
otherwise transfer this Lease or the term and estate hereby granted, or offer or
advertise to do so, (b) sublet the Leased Premises or any part thereof, or offer
or advertise to do so, or allow the same to be used, occupied or utilized by
anyone other than Tenant, (c) mortgage, pledge, encumber or otherwise
hypothecate this Lease or the Leased Premises or any part thereof in any manner
whatsoever, or (d) permit the Leased Premises or any part thereof to be
occupied, or used for desk space, mailing privileges or otherwise, by any person
other than Tenant without in each instance obtaining the prior written consent
of Landlord; provided, however, (i) Tenant shall have the right to assign or
sublet the Leased Premises in whole or in part provided that the assignee or
subtenant shall be acceptable to the Landlord and such assignee or subtenant
shall be as credit worthy as other occupants of VIA XXXXXX FINANCIAL PLAZA and
shall conduct a business consistent with and meet the standards imposed on other
occupants of VIA XXXXXX FINANCIAL PLAZA and further the occupancy by such
assignee or subtenant shall not result in a breach of or violation of any term
of any lease between the Landlord and any other occupant of VIA XXXXXX FINANCIAL
PLAZA; or (ii) Tenant shall have the right (with 60 days prior written notice to
the Landlord) to assign or sublet the Leased Premises to a related entity owned
by the parent entity of the Tenant which parent entity shall have not less than
a twenty percent (20%) ownership interest in the related entity to which the
Tenant assigns or sublets and such assignee or subtenant shall conduct a
business consistent with the Tenant and meet the standards imposed on other
occupants of VIA XXXXXX FINANCIAL PLAZA and further the occupancy by the
assignee or subtenant shall not result in a breach of or violation of any term
of any lease between the Landlord and any other occupant of VIA XXXXXX FINANCIAL
PLAZA.
Any assignment made pursuant to subparagraph 11.01(i) above shall be
subject to the following provisions: It is further agreed between the Landlord
and Tenant that the Landlord shall be entitled to receive any increase in the
rent or other considerations paid by an assignee or subtenant in excess of the
rental obligations of the Tenant to the Landlord as set forth in this Lease. The
consent by Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or
subletting. It is understood that Landlord may refuse to grant consent to any
assignment or subletting by Tenant with or without cause and without stating in
its refusal to grant such consent the basis or reasons for which it refuses to
grant such consent (whether arbitrarily or otherwise) and may not, under any
circumstances, be required or compelled to grant such consent. If this Lease be
assigned without consent of Landlord, or if the Leased Premises or any part
thereof be underlet or occupied by any party other than Tenant without consent
of Landlord, Landlord may collect rent from the assignee, subtenant or occupant,
and apply the net
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amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as Tenant, or a release
of Tenant from the further performance by Tenant of the covenants on the part of
Tenant herein contained, and further provided that Landlord shall have the
option of terminating this Lease on written notice to Tenant given within twenty
(20) days after receipt of the request for Landlord's approval or notice to
Landlord of such assignment or subletting; provided, however, Tenant may elect
to withdraw its request for assignment or subletting and the Lease shall not
terminate as provided for hereinbefore. This prohibition against assignment or
subletting shall be construed to include prohibition against any assignment or
subleasing by operation of law, legal process, receivership, bankruptcy or
otherwise, whether voluntary or involuntary. Notwithstanding any assignment or
sublease, Tenant shall remain fully liable on this Lease and shall not be
released from performing any of the terms, covenants and conditions of this
Lease.
(b) The Tenant shall have the obligation to pay a reasonable
administrative fee in connection with such assignment.
SECTION 11.02 Significant Change of Corporate Ownership.
(a) If Tenant is a corporation, the provisions of Paragraph (a) of
Section 11.01 shall apply to a transfer (by one or more transfers) of eighty
percent (80%) interest of the stock of Tenant as if such transfer of eighty
percent (80%) of the stock of Tenant were an assignment of this Lease; but said
provision shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred or to any corporation which controls or is controlled by
Tenant or is under common control with Tenant, provided that in any of such
events (i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the greater of (1)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer, or (2) the net worth of the Tenant herein named on the date of this
Lease, and (ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction, (iii) Landlord shall have received at least ten (10) days
prior to the effective date of any such transaction a duplicate original
instrument of assignment in form and substance satisfactory to Landlord, duly
executed by Tenant, and (iv) Landlord shall have received at least ten (10) days
prior to the effective date of any such transaction an original instrument in
form and substance satisfactory to Landlord, duly executed by the assignee, in
which such assignee assumes (as of the Commencement Date) observance and
performance of, and agrees to be personally bound by, all of the terms,
covenants and conditions of this Lease on Tenant's part to be performed and
observed.
(b) The Tenant shall have the obligation to pay a reasonable
administrative fee in connection with such assignment.
SECTION 11.03 Termination at Landlord's Election.
Notwithstanding anything to the contrary contained in this Article, if
Tenant shall at any time or times during the term of this Lease desire to assign
this Lease or sublet all or any portion of the Leased Premises, Tenant shall
give notice thereof to Landlord, which notice shall state whether Tenant desires
to assign this Lease or sublet all or a portion of the Leased Premises and shall
further state the desire commencement and Expiration Date of any subletting or
the desired effective date
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of any assignment, as the case may be (which commencement date or effective date
shall in no event be earlier than sixty (60) days following the giving of such
notice). If a portion of the Leased Premises is proposed to be sublet, such
notice shall be accompanied by a diagram identifying the portion to be so
sublet. Such notice shall be deemed an offer from Tenant to Landlord whereby
Landlord (or Landlord's designee) may, at its option, (i) terminate this Lease
(if the proposed transaction is an assignment or a sublease of all or
substantially all of the Leased Premises), or (ii) terminate this Lease with
respect to the space covered by the proposed sublease (if the proposed
transaction is a sublease of part of the Leased Premises). Said option may be
exercised by Landlord by notice to Tenant at any time within sixty (60) days
after such notice has been given by Tenant to Landlord provided, however, if
Landlord elects to terminate, the Tenant shall have the option of withdrawing
the proposed assignment or subletting and this Lease shall continue in full
force and effect; and during such 60-day period Tenant shall not assign this
Lease or sublet such space to any person. If Landlord exercises its option to
terminate this Lease, then, this Lease shall end and expire on the date that
such assignment or sublet was to be effective or commence, as the case may be,
and the Fixed Minimum Annual Rent and Additional Rent shall be paid and
apportioned to such date. If Landlord exercises its option to terminate this
Lease with respect to the space covered by Tenant's proposed sublease in any
case where Tenant desires to sublet part of the Leased Premises, then (a) this
Lease shall end and expire with respect to such part of the Leased premises on
the date that the proposed sublease was to commence; (b) from and after such
date the Fixed Minimum Annual Rent and Additional Rent shall be adjusted, based
upon the proportion that the rentable area of the Leased Premises remaining
bears to the total rentable area of the Leased Premises; and (c) Tenant shall
pay to Landlord, upon demand, as Additional Rent hereunder the costs incurred by
Landlord in physically separating such part of the Leased premises from the
balance of the Leased Premises and in complying with any laws and requirements
of any public authorities relating to such separation.
SECTION 11.04 Assignment by Tenant.
Any assignment or transfer, whether made with Landlord's consent or
without Landlord's consent, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance satisfactory to Landlord whereby the assignee
shall assume the obligations of this Lease on the part of Tenant to be performed
or observed and whereby the assignee shall agree that the provisions in Section
11.01 shall, notwithstanding such assignment or transfer, continue to be binding
upon it in respect of all future assignments and transfers. The original named
Tenant covenants that, notwithstanding any assignment or transfer, whether or
not in violation of the provisions of this Lease, and notwithstanding the
acceptance of Fixed Minimum Annual Rent and/or Additional Rent by Landlord from
an assignee, transferee, or any other party, the original named Tenant shall
remain fully liable for the payment of the Fixed Minimum Annual Rent and
Additional Rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed.
SECTION 11.05 Assignment by Landlord.
In the event of the transfer and assignment by Landlord of its interest in
this Lease and in the building containing the Leased Premises to a person
expressly assuming Landlord's obligations under this Lease, Landlord shall
thereby be released from any further obligations hereunder, and Tenant agrees to
look
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solely to such successor in interest of the Landlord for performance of such
obligations.
ARTICLE XII
Waste, Governmental Regulations
SECTION 12.01 Waste or Nuisance.
Tenant shall not commit or suffer to be committed any waste upon the
Leased Premises or any nuisance or other act or thing which may disturb the
quiet enjoyment of any other tenant in VIA XXXXXX FINANCIAL PLAZA, or which may
adversely affect Landlord's interest in the Leased Premises or VIA XXXXXX
FINANCIAL PLAZA. Tenant shall abide by and comply with the Maintenance and
Cleaning Standards for Tenants attached hereto and made a part hereof as Exhibit
"G" as adopted and amended from time to time by Landlord.
SECTION 12.02 Governmental Regulations.
Tenant shall, at Tenant's sole cost and expense, comply with all county,
municipal, state, federal laws, orders, ordinances and other applicable
requirements of all governmental authorities, now in force, or which may
hereafter be in force, pertaining to, or affecting the condition, use or
occupancy of the Leased Premises, and shall faithfully observe in the use and
occupancy of the Leased Premises all municipal and county ordinances and state
and federal statutes now in force or which may hereafter be in force. Tenant
shall indemnify, defend and save Landlord harmless from all costs, losses,
expenses or damages resulting from Tenant's failure to perform its obligations
under this Section.
If the Tenant is required, as a result of the provisions of this
paragraph, to undertake improvements to the Leased Premises, then in that event,
the Landlord shall pay for such improvements and the Tenant shall pay as
additional rent from the date of the completion of such improvements a prorated
amount (including interest on the amount paid by the Landlord for such
improvements at a rate equal to First Union National Bank of Florida's Prime
Rate plus one percent (1%)) determined by amortizing the reasonable life of such
improvements in monthly payments, which monthly payments shall be additional
rent for the remaining term of this Lease.
Without limiting the foregoing, Tenant shall, upon Landlord's request,
provide the Landlord with a travel mode survey for all employees of Tenant
occupying the Leased Premises and a travel mode survey for all employees of any
subtenant of Tenant. Such travel mode surveys shall be completed on such forms
as may be prescribed by the Landlord. Tenant specifically authorizes Landlord to
disclose the results of the Tenant's (and subtenants) travel mode survey to the
City of Boca Raton, the Community Redevelopment Agency, and such other
governmental authorities as may be necessary or appropriate.
SECTION 12.03 Hazardous or Toxic Materials.
For purposes of this Section 12.03, "Hazardous or Toxic Materials" shall
be defined to include but not be limited to (i) "hazardous substances" as
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. 9601(14)) and as said Act may be
amended from time to time; (ii) "Hazardous Waste" as defined in the Florida
Resource Recovery and Management Act (Florida Statutes, Chapter
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403) and as said Act may be amended from time to time; (iii) asbestos; (iv)
radon; and (v) petroleum products.
During the term of this Lease or any extended term, Tenant shall not
introduce, generate, release, treat, discharge, emit, handle, store, transport
or dispose of any Hazardous or Toxic Materials on or about the Leased Premises
or the Common Areas. Further, Tenant shall not engage in or permit any
activities to be conducted on or about the Leased Premises or in the Common
Areas which would constitute a breach or violation of the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C., 9601 et.
seq.) and as said Act may be amended from time to time or the Florida Resource
Recovery and Management Act (Florida Statute, Chapter 403) and as said Act may
be amended from time to time (hereinafter collectively "Environmental Laws")
during the term of this Lease. To the best of Tenant's knowledge and belief the
Leased Premises and the Common Areas have not in the past been used and are not
presently being used in violation or contravention of any applicable Federal,
State or local laws, ordinances, rules, regulations or requirements, including
the Environmental Laws, pertaining to Hazardous or Toxic Material.
Tenant hereby indemnifies and agrees to defend and save and hold
Landlord, its general partners, limited partners, officers, employees, agents,
successors, assigns and constituent entities harmless from and against any and
all losses, liabilities, obligations, damages (including without limitation all
foreseeable and unforeseeable consequential damages to any person or entity,
including third parties and including punitive damages, injuries, charges,
penalties, interest, expenses, fees (including attorneys' fees and all
administrative and judicial hearings, trial and appellate levels), costs
(including, without limitation, costs of any settlement), judgments,
administrative or judicial proceedings and orders, remedial actions, enforcement
actions, claims and demand of any and every kind whatsoever paid, incurred or
suffered by, or asserted against, Landlord by any person, entity or governmental
agency or body, for, with respect to, related to, arising out of, or as a direct
or indirect result of (a) Tenant's violation or breach of this Section 12.03
relative to the Leased Premises; (b) Tenant's breach of any Environmental Laws
relative to the Leased Premises or Common Areas or any activities of Tenant
conducted thereon; or (c) Tenant's use, introduction, generation, release,
treatment, discharge, emission, escape, seepage, leakage, spillage, handling,
storage, transportation, disposal, cleanup, on, under or about the Leased
Premises and the Common Areas or adjacent to the Leased Premises and the Common
Areas or to the soil, air or to surface or ground water thereon of any Hazardous
or Toxic Materials. All sums paid and costs incurred by Landlord with respect to
the foregoing matters shall bear interest at the highest applicable legal rate.
This indemnification shall survive the term of this Lease and the Tenant's
surrender of the Leased Premises and it shall inure to the benefit of any
transferee of title to the Leased Premises or the Common Areas whomsoever.
If the Tenant receives any notice of or has reason to know of (i) the
happening of any material event involving the use, generation, release,
treatment, discharge, emission, escape, seepage, leakage, spillage, handling,
storage, transportation, disposal or cleanup of any Hazardous or Toxic Materials
on or about the Leased Premises and the Common Areas or adjacent thereto, or in
connection with Tenant's operations thereon, or (ii) any complaint, order,
citation or notice with regard to air emissions, water discharges or any other
environmental, health or safety matter affecting the Tenant or the Leased
Premises or the Common Areas from any person, entity or governmental agency or
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body, then Tenant shall immediately notify Landlord orally and in writing of
said notice.
Any breach of the provisions, representations, covenants or agreements
contained in this Section 12.03 shall entitle the Landlord to exercise any and
all remedies provided in this Lease or otherwise permitted by law.
ARTICLE XIII
Rules and Regulations
Tenant agrees to comply with and abide by the Rules and Regulations of VIA
XXXXXX FINANCIAL PLAZA attached hereto and made a part hereof as Exhibit "H" as
adopted and amended from time to time by Landlord. Nothing contained in this
Lease shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations against any other tenant or any employees or
agents of any other tenant, provided such Rules and Regulations are enforced
uniformly and in a non-discriminatory manner and Landlord shall not be liable to
Tenant for violation of the Rules and Regulations by any other tenant or its
employees, agents, invitees or licensees.
ARTICLE XIV
Advertising, Etc.
SECTION 14.01 Solicitation of Business.
Tenant and Tenant's employees and agents shall not solicit business in
the parking or other Common Areas, nor shall Tenant distribute any handbills or
other advertising matter in the Common Areas and specifically on the automobiles
parked in the parking areas. Tenant and Tenant's employees and agents shall not
display, advertise or disseminate any visual or auditory advertising or business
information from a parked or moving vehicle within VIA XXXXXX FINANCIAL PLAZA,
including but not limited to window and bumper stickers or sun shades or blinds,
painting or other implementation of advertising materials affixed to a vehicle
and the use of noise producing devises to either draw attention to or
communicate advertising or promotional information.
SECTION 14.02 Advertised Name and Address.
Tenant shall use as its advertised street address the name of VIA
XXXXXX FINANCIAL PLAZA. Tenant shall not use the name of VIA XXXXXX FINANCIAL
PLAZA for any purpose other than as the address of the business to be conducted
by Tenant in the Leased Premises and Tenant shall not acquire any property right
in or to any name which contains the name of VIA XXXXXX FINANCIAL PLAZA as a
part thereof. Any permitted use by Tenant of the name of VIA XXXXXX FINANCIAL
PLAZA during the term of the Lease shall not permit Tenant to use, and Tenant
shall not use, such name of VIA XXXXXX FINANCIAL PLAZA either after the
termination of this Lease or at any other location. Tenant shall not use the
name of the Landlord in any advertisement, or otherwise. Tenant shall use only
Tenant's name as set forth in Section (f) of the Lease Summary and Tenant's
trade name as set forth in Section (g) of the Lease Summary in its advertising
and promotional activities and shall not use any other name in connection with
the Leased Premises.
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SECTION 14.03 Letters and Marks.
Tenant agrees to use in its advertising and promotional activities for
its business in the Leased Premises such references to the name of VIA XXXXXX
FINANCIAL PLAZA and such identifying lettering, marks or symbols referred to VIA
XXXXXX FINANCIAL PLAZA in its address for the Leased Premises and shall
subscribe to a listing in the yellow pages of the local telephone directory
which shall be printed in bold type.
ARTICLE XV
Destruction of Leased Premises
SECTION 15.01 Total or Partial Destruction.
If VIA XXXXXX FINANCIAL PLAZA shall be damaged by fire, the elements,
unavoidable accident or other casualty, without the fault of Tenant, but are not
thereby rendered untenantable in whole or in part, Landlord shall at its own
expense cause such damage, to be repaired, but only to the extent of Landlord's
original obligation to construct pursuant to Section 3.01, and the rent and
other charges shall not be abated. If by reason of such occurrence, the Leased
Premises shall be rendered untenantable only in part, Landlord shall at its own
expense cause the damage, except Tenant's improvements, equipment and trade
fixtures, to be repaired, but only to the extent of Landlord's original
obligation to construct pursuant to Section 3.01, and the fixed minimum rent
meanwhile shall not be abated as to the portion of the premises rendered
untenantable; provided, however, Landlord shall have the right, to be exercised
by notice to Tenant within sixty (60) days after said occurrence, to elect not
to repair such damage and to cancel and terminate this Lease effective as of a
date stipulated in Landlord's notice, which shall not be earlier than thirty
(30) days nor later than sixty (60) days after the giving of such notice. If the
premises shall be rendered wholly untenantable by reason of such occurrence, the
Landlord shall at its own expense cause such damage, to be repaired, but only to
the extent of the Landlord's original obligation to construct pursuant to
Section 3.01, and the fixed minimum rent meanwhile shall not xxxxx in whole or
in part except that Landlord shall have the right, to be exercised by notice to
Tenant within sixty (60) days after said occurrence, to elect not to reconstruct
the destroyed premises, and in such event this Lease and the tenancy hereby
created shall cease as of the date of the said occurrence. If Landlord shall
elect to reconstruct, then Landlord shall have a period of nine (9) months from
the date Landlord issues its notice to Tenant to build and complete the
improvements to the extent of the Landlord's original obligation to construct
pursuant to Section 3.01. Tenant specifically acknowledges the obligation to
maintain insurance coverage at Tenant's expense to pay the rent costs incurred
by Tenant and due Landlord during any period which the Landlord is partially or
totally repairing or reconstructing the damage or casualty to VIA XXXXXX
FINANCIAL PLAZA. Nothing in this Section shall be construed to permit the
abatement in whole or in part of the charges for operating costs, common area
maintenance, real estate taxes attributable, and other charges set forth in
Article II of this Lease to any period during which the Leased Premises shall be
in untenantable condition, nor shall there be any abatement for any other item
due Landlord by Tenant pursuant to the terms of this Lease.
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SECTION 15.02 Partial Destruction of VIA XXXXXX FINANCIAL PLAZA.
In the event that fifty percent (50%) or more of the rentable area of
VIA XXXXXX FINANCIAL PLAZA shall be damaged or destroyed by fire or other cause,
notwithstanding any other provisions contained herein and that the Leased
premises may be unaffected by such fire or other cause, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within sixty
(60) days after said occurrence, to elect to cancel and terminate this Lease.
Upon the giving of such notice to Tenant, the term of this Lease shall expire by
lapse of time upon the third day after such notice is given, and Tenant shall
vacate the Lease Premises and surrender the sane to Landlord.
SECTION 15.03 Reconstruction of Improvements.
In the event of any reconstruction of the Leased premises under this
Section, said reconstruction shall be in substantial conformity with the
provisions of Exhibit "C" hereof to the extent of the work as therein set forth
as "Landlord's Work". Tenant, at its sole cost and expense, shall be responsible
for the repair and restoration of all items set forth as 1'Tenant's Work" in
Exhibit "D" and the replacement of its stock in trade fixtures furniture,
furnishings and equipment. Tenant shall commence the installation of fixtures,
equipment, and merchandise (if any) hereof promptly upon delivery to it of
possession of the Leased premises and shall diligently prosecute such
installation to completion.
ARTICLE XVI
Eminent Domain
SECTION 16.01 Total Condemnation.
If the whole of the Leased premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, then the term of
this Lease shall cease and terminate as of the date of title vesting in such
proceeding and all rentals and other charges shall be paid up to that date and
Tenant shall have no claim against Landlord for the value of any unexpired term
of this Lease.
SECTION 16.02 partial Condemnation.
If any part of the Leased premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, and in the event
that such partial taking or condemnation shall render the Leased premises
unsuitable for the business of the Tenant (taking into account applicable
parking requirements), then Landlord and Tenant shall each have the right to
terminate this Lease by notice given to the other within sixty (60) days after
the date of title vesting in such proceeding and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease. In the event
of a partial taking or condemnation which is not extensive enough to render the
premises unsuitable for the business of the Tenant, then Landlord shall promptly
restore the Leased premises (exclusive of Tenant's improvements, Tenant's
equipment and trade fixtures) to a condition comparable to its condition at the
time of such condemnation less the portion lost in the taking and the building
of which the Leased premises forms a part to the extent necessary to constitute
the portion of the building not so taken as a complete architectural unit;
provided that Landlord shall not in any event be required to spend for such
repair, restoration or alteration work an amount in excess of the respective
amounts received by Landlord as damages for the taking such part of
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the Leased Premises and of the building of which the same forms a part. As used
herein, the amount "received by Landlord" shall mean that portion of the award
or damages in condemnation received by Landlord from the condemning authority
which is free and clear of all prior claims or collections by the holders of any
mortgages or deeds of trust or any ground or underlying lessors, and this Lease
shall continue in full force and effect except that the Fixed Minimum Annual
Rent shall be reduced in proportion to the portion of the Leased Premises lost
in the taking. If more than twenty percent (20%) of the floor area of the
buildings in VIA XXXXXX FINANCIAL PLAZA shall be taken as aforesaid (whether or
not the Leased Premises shall be affected by the taking), Landlord shall have
the right to terminate this Lease by notice to Tenant given within sixty (60)
days after the date of title vesting in such proceeding and Tenant shall have no
claim against Landlord for the value of the unexpired term of this Lease.
SECTION 16.03 Landlord's Damages.
In the event of any condemnation or taking as hereinabove provided,
whether whole or partial, the Tenant shall not be entitled to any part of the
award, as damages or otherwise, for such condemnation and Landlord is to receive
the full amount of such award, the Tenant hereby expressly waiving any right or
claim to any part thereof.
SECTION 16.04 Tenant's Damages.
Although all damages in the event of any condemnation are to belong to
the Landlord whether such damages are awarded as compensation for diminution in
value of the Leasehold or the fee of the Leased Premises, Tenant shall have the
right to claim and recover from the condemning authority, but not from Landlord,
such compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right on account of any damage to Tenant's business by reason of
the condemnation and for or on account of any cost or loss to which Tenant might
be put in removing Tenant's merchandise, furniture, fixtures, leasehold
improvements and equipment, provided no such claim shall diminish or otherwise
adversely affect Landlord's award. Each party agrees to execute and deliver to
the other all instruments that may be required to effectuate the provisions of
Section 16.03 and this Section 16.04.
SECTION 16.05 Sale Under Threat of Condemnation.
A sale by Landlord to any authority having the power of eminent domain,
either under threat of condemnation or while condemnation proceedings are
pending, shall be deemed a taking under the power of eminent domain for all
purposes under this Article.
ARTICLE XVII
Default of Tenant
SECTION 17.01 Events of Default.
Upon the happening of one or more of the events as expressed below in
(a) to (k), inclusive (individually and collectively, "Event of Default"), the
Landlord shall have any and all rights and remedies hereinafter set forth:
(a) In the event Tenant should fail to pay any monthly installment of
rent or any other sums required to be paid
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hereunder within five (5) days from and when the same become due.
(b) In the event a petition in bankruptcy (including Chapter X and
Chapter XI bankruptcy proceedings or any other reorganization proceedings under
the Bankruptcy Act) be filed by the Tenant, or be filed against Tenant, and such
petition is not dismissed within thirty (30) days from the filing thereof, or in
the event Tenant is adjudged a bankrupt.
(c) In the event an assignment for the benefit of creditors is made by
Tenant.
(d) In the event of an appointment by any court of a receiver or other
court officer of Tenant's property and such receivership is not dismissed within
thirty (30) days from such appointment.
(e) In the event Tenant removes, attempts to remove, or permits to be
removed from the Leased Premises, except in the usual course of trade, the
goods, furniture, effects or other property of the Tenant brought thereon.
(f) In the event Tenant, before the expiration of the term hereof and
without the written consent of the Landlord, vacates the Leased Premises or
abandons the possession thereof, or uses the same for purposes other than the
purposes for which the same are hereby leased.
(g) In the event an execution or other legal process is levied upon the
goods, furniture, effects or other property of Tenant brought on the Leased
premises, or upon the interest of Tenant in this Lease, and the same is not
satisfied or dismissed within ten (10) days from this levy.
(h) In the event Tenant abandons or fails to occupy the Leased Premises
or in the event Tenant fails to occupy the Leased Premises in accordance with
Section 4.02 hereof.
(i) In the event Tenant fails to keep, observe or perform any of the
other terms, conditions or covenants on the part of Tenant herein to be kept,
observed and performed for more than ten (10) days after written notice thereof
is given by Landlord to Tenant specifying the nature of such default, or if the
default so specified shall be of such a nature that the same cannot reasonably
be cured or remedied within said ten (10) day period, if Tenant shall not in
good faith have commenced the curing or remedying of such default within such
ten (10) day period and shall not thereafter continuously and diligently proceed
therewith to completion.
(j) Tenant shall not place a load upon any floor of the Leased Premises
exceeding the floor load per square foot which such floor was designed to carry.
Any load exceeding the floor load per square foot maximum, must be placed by
Tenant at Tenant's expense so as to safely distribute the weight in accordance
with engineering standards which Tenant shall obtain from Landlord's engineer at
Tenant's expense. Business machines and mechanical equipment shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient in Landlord's
reasonable judgment to absorb and prevent vibration, noise and annoyance. If the
Leased Premises be or become infested with insects or vermin as a result of the
use or any misuse or neglect of the Leased premises by Tenant, its agents,
employees, visitors or licensees, Tenant shall at Tenant's expense cause the
same to be exterminated from time to time to the reasonable satisfaction of
Landlord and shall employ such exterminators and
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such exterminating company or companies as shall be reasonably approved by
Landlord.
(k) Any event MANAGEMENT INC., a conditions of that MANAGEMENT INC. as
general partnership of default or breach by MACKENZIE INVESTMENT Delaware
corporation, under the terms and certain lease between MACKENZIE INVESTMENT
tenant and VIA XXXXXX ASSOCIATES, a Florida as landlord, dated May 10, 1989 (as
amended).
SECTION 17.02 Remedies of Landlord.
(a) In the event of any such default or breach, Landlord shall have the
immediate right to re-enter the Leased premises, either by summary proceedings,
by force or otherwise, and to dispossess Tenant and all other occupants
therefrom and remove and dispose of all property therein in the manner provided
in subdivision (c) of this Section, all without service of any notice of
intention to re-enter and without Landlord being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby. Landlord
shall also have the right, at the option of Landlord, to terminate this Lease
upon three (3) days written notice to Tenant, and to thereupon reenter and take
possession of the said premises. In the event of any such default or breach,
Landlord shall have the right, at its option, from time to time, without
terminating this Lease, to reenter and re-let the premises, or any part thereof,
with or without legal process, as the agent and for the account of Tenant upon
such terms and conditions as Landlord may deem advisable or satisfactory, in
which even the rents received on such re-letting shall be applied first to the
expenses of such re-letting and collection including but not limited to,
necessary renovation and alterations of the Leased premises, reasonable
attorney's fees, any real estate commissions paid, and thereafter toward payment
of all sums due or which become due Landlord hereunder, and if a sufficient sum
shall not be thus realized or secured to pay such sums and other charges, (i) at
Landlord's option, Tenant shall pay Landlord any deficiency monthly,
notwithstanding Landlord may have received rental in excess of the rental
stipulated in this Lease in previous or subsequent months, and Landlord may
bring an action therefor as such monthly deficiency shall arise, or (ii) at
Landlord's option, the entire deficiency, which is subject to ascertainment for
the remaining term of this Lease, shall be immediately due and payable by
Tenant. Nothing herein, however, shall be construed to require Landlord to
re-enter in any event. The Landlord shall not, in any event, be required to pay
Tenant any surplus of any sums received by Landlord on a re-letting of said
premises in excess of the rent provided in this Lease.
(b) In the event of any such default or breach, the Landlord shall have
the right, at its option, to declare the rents for the entire remaining term and
other indebtedness, if any, immediately due and payable without regard to
whether or not possession shall have been surrendered to or taken by Landlord,
and may commence action immediately thereupon and recover judgement therefor
which judgement shall be rendered for the then present value of the
aforedescribed sum.
(c) The Landlord in addition to other rights and remedies it may have,
shall have the right to remove all or any part of the Tenant's property from
said premises and any property removed may be stored in any public warehouse or
elsewhere at the cost of, and for the account of Tenant and the Landlord shall
not be responsible for the care or safekeeping thereof, and the Tenant hereby
waives any and all loss, destruction and/or damage or injury which may be
occasioned by any of the aforesaid acts.
(d) No such re-entry or taking possession of said leased Premises by
Landlord shall be construed as an election on
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Landlord's part to terminate this Lease unless a written notice of such
intention is given to Tenant. Notwithstanding any such re-letting without
termination, Landlord may at all times thereafter, elect to terminate this Lease
for such previous default or breach. Any such re-entry shall be allowed by
Tenant without hindrance and Landlord shall not be liable in damages for any
such re-entry, or guilty of trespass or forcible entry.
(e) Any and all rights, remedies and options given in this Lease to
Landlord shall be cumulative and in addition to and without waiver of or in
derogation of any right or remedy given to it under any law now or hereafter in
effect.
SECTION 17.03 Waiver.
The waiver by Landlord of any breach of any term, condition or covenant
herein contained shall not be a waiver of such term, condition or covenant, or
any subsequent breach of the same or any other term, condition or covenant
herein contained. The consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant. No re-entry hereunder shall bar the recovery of rents or damages for the
breach of any of the terms, conditions or covenants on the part of Tenant herein
contained. The receipt of rent after breach or condition broken, or delay on the
part of Landlord to enforce any right hereunder, shall not be deemed a waiver or
forfeiture, or a waiver of the right of Landlord to annul this Lease or to
reenter said Leased Premises or to re-let same.
SECTION 17.04 Past Due Payments.
In the event any payment due under this Lease should not be paid on the
due date, Tenant agrees to pay interest on the amount which is delinquent at the
highest rate permitted under the laws of the state of Florida, for such
delinquent payment until made. In addition thereto, if Tenant shall fail to pay
any rents, additional rents or any other payments due under this Lease within
five (5) days of the due date thereof, or in the event any check, bank draft,
order for payment or negotiable instrument given to Landlord for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable
to Landlord, then Tenant shall also pay to Landlord an administrative charge
equal to whichever is the greater of the following: (i) One Hundred Dollars
($100.00), or (ii) five percent (5%) of such unpaid sum. Tenant recognizes and
agrees that the charge which Landlord is entitled to make upon the conditions
stated in this Section represents, at the time this Lease is made, a fair and
reasonable estimate and liquidation of the cost of Landlord in the
administration of VIA XXXXXX FINANCIAL PLAZA resulting to Landlord from the
events described which costs are not contemplated or included in any other
rental charges provided to be paid by Tenant to Landlord in this Lease. The
provisions herein for administration charges shall not be construed to extend
the date for payment of any sums required to be paid by Tenant hereunder or to
relieve Tenant of its obligation to pay all such sums at the time or times
herein stipulated.
SECTION 17.05 Legal Expenses.
In the event that it shall become necessary for Landlord to employ the
services of an attorney to enforce any of its rights under this Lease or to
collect any sums due to it under this Lease or to remedy the breach of any
covenant of this Lease on the part of the Tenant to be kept or performed,
regardless of whether suit be brought, Tenant shall pay to Landlord such fee as
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shall be charged by Landlord's attorney for such services. Should suit be
brought for the recovery of possession of the Leased Premises, or for rent or
any other sum due Landlord under this Lease, or because of the breach of any of
Tenant's covenants under this Lease, Tenant shall pay to Landlord all expenses
of such suit and any appeal thereof, including a reasonable attorney's fee.
In the event that it shall become necessary for Tenant to employ the
services of an attorney to enforce any of its rights under this Lease or to
collect any sums due to it under this Lease or to remedy the breach of any
covenant of this Lease on the part of the Landlord to be kept or performed,
regardless of whether suit be brought, Landlord shall pay to Tenant such fee as
shall be charged by Tenant's attorney for such services. Should suit be brought
for any sum due Tenant under this Lease, or because of the breach of any of
Landlord's covenants under this Lease, Landlord shall pay to Tenant all expenses
of such suit and any appeal thereof, including a reasonable attorney's fee.
ARTICLE XVIII
Access by Landlord
SECTION 18.01 Right of Entry.
(a) provided the Landlord has given reasonable notice to the Tenant
(except in the case of an emergency), Landlord and Landlord's agents shall have
the right to enter the Leased premises at all reasonable times to examine the
same, and to show them to prospective purchasers or lessees of the Leased
Premises, and to make such repairs, or alterations, improvements or additions as
Landlord may deem necessary or desirable, and Landlord shall be allowed to take
all material into and upon said premises that may be required therefor without
the same constituting an eviction of Tenant in whole or in part and the rent
reserved shall in no way xxxxx while said repairs, alterations, improvements or
additions are being made unless Tenant is prevented from operating in the Leased
Premises in whole or in part, in which event rent shall be proportionately
abated during said period. During the six (6) months prior to the expiration of
the term of this Lease or any renewal term, Landlord may exhibit the premises to
prospective tenants or purchasers, and place upon the premises the usual notices
"To Let" or "For Rent" which notices Tenant shall permit to remain thereon
without molestation. If Tenant shall not be personally present to open and
permit an entry into said premises, at any time, when for any reason an entry
therein shall be necessary or permissible, Landlord or Landlord's agents may
enter the same without in any manner affecting the obligations and covenants of
this Lease. Nothing herein contained, however, shall be deemed or construed to
impose upon Landlord any obligation, responsibility or liability whatsoever, for
the care, maintenance or repair of the Building or any part thereof, except as
otherwise herein specifically provided. Landlord and Tenant agree that Landlord
shall not unreasonably interfere with Tenant's business operations in connection
with Landlord's activities under this subparagraph (a) except in the case of an
emergency.
(b) Except for the space within the inside surfaces of all walls, drop
ceilings, floors, windows and doors bounding the Leased Premises, all of the
Building including without limitations exterior building walls, atrium walls,
core corridor walls and doors, terraces or roofs adjacent to or above the Leased
premises and any space in or adjacent to the Leased
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Premises used for shafts, stacks, pipes, conduits, utilities rooms, ducts, which
service other portions of the Building in addition to or exclusive of the Leased
Premises, are reserved to the Landlord for the purposes of maintenance,
decoration, repair, operation, construction of additions to the Building or
other leased premises within the Building. Landlord reserves the right and
Tenant shall permit Landlord and persons authorized by Landlord to access the
aforedescribed facilities and to install, erect, use and maintain the
aforedescribed facilities in and through the Leased Premises. Landlord and
persons authorized by the Landlord shall have the right to enter and/or pass
through the Leased premises at any time or times to make such repairs,
alterations, additions and improvements in or to the Leased premises and/or in
or to the Building or its improvements and common facilities as Landlord is
required or desires to make. Landlord and such authorized persons shall be
allowed to take all materials into and upon the Leased premises that may be
required in connection therewith, without liability to Tenant and without any
reduction of Tenant's covenants and/or obligations hereunder.
(c) If at any time any windows of the Leased Premises are either
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Building or covered by any
translucent material for the purpose of energy conservation, or if any part of
the Building, other than the Leased premises, is temporarily or permanently
closed or inoperable, the same shall be without liability to Landlord and
without any reduction or diminution of Tenant's obligations under this Lease.
Neither this Lease nor any use by Tenant, shall give Tenant any easement or
other right in or to (i) the use of any door or any passage or any concourse or
other common facility within VIA XXXXXX FINANCIAL PLAZA, or (ii) the use of such
doors, passages, concourses and common facilities for access to any other
building or any public conveniences or transportation facilities. Tenant
acknowledges that the use of such doors, passages, concourses and common
facilities may without notice to Tenant be regulated or discontinued at any time
by Landlord.
(d) If an excavation shall be made upon land adjacent to or under the
Building in which the Leased Premises is located, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter the Leased premises for the purpose of performing
such work as said person shall deem necessary or desirable to preserve and
protect the Building from injury or damage to support the same by proper
foundations, without any claim for damages or liability against Landlord and
without reducing or otherwise affecting Tenant's obligations under this Lease.
SECTION 18.02 Roof.
Use of the roof and/or air space above the Leased premises is reserved
exclusively to the Landlord. Any use of the roof and/or air space above the
Lease Premises or the Building by the Tenant shall be subject to the Landlord's
absolute and sole discretion; provided, however, any such use is subject to the
approval of all governmental authorities having jurisdiction over such use (and
the installation of facilities or improvements to accomplish such use) and
nothing contained herein shall be interpreted or construed as a representation
or implication by the Landlord that the use (or the installation of facilities
or improvements to accomplish such use) will receive the consent or approval of
any of the governmental authorities having jurisdiction and approval rights or
control of the use.
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ARTICLE XIX
Tenant's Property
SECTION 19.01 Taxes on Leasehold or Personalty.
Tenant shall be responsible for and shall pay before delinquent all
municipal, county or state taxes assessed during the term of this Lease against
any leasehold interest or personal property of any kind, owned by or placed in,
upon or about the Leased Premises by the Tenant.
SECTION 19.02 Loss and Damage.
Landlord shall not be responsible for any damage to property of Tenant
or of others located on the Leased Premises nor for the loss of or damage to any
property of Tenant or others by theft or otherwise except for the sole
negligence of the Landlord or the sole negligence of the Landlord's employees.
Landlord shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain, or leaks from any part of the Leased Premises or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature. Landlord
shall not be liable for any such damage caused by other tenants or persons in
the Leased premises, occupants of adjacent property within VIA XXXXXX FINANCIAL
PLAZA, or the public, or caused by operations in construction of any private,
public or quasi-public work. Landlord shall not be liable in damages or
otherwise for any latent defect in the Leased Premises or in the Building of
which they form a part, except that if Tenant shall give notice to Landlord
within a period of one (1) year from the date Tenant takes possession of the
Leased Premises of the existence of any such latent defect, then provided such
defect shall not have resulted from any act, alteration or improvement made by
Tenant, Landlord shall repair such defect. All property of Tenant kept or stored
on the Leased Premises shall be so kept or stored at the risk of Tenant only and
Tenant shall hold Landlord harmless from any and all claims arising out of
damage to same, including subrogation claims by Tenant's insurance carriers.
SECTION 19.03 Notice by Tenant.
Tenant shall give immediate notice to Landlord in case of fire or
accidents in the Leased Premises or in the Building of which the premises are a
part or of defects therein or in any fixtures or equipment, or of any repair or
maintenance item for which the Landlord is responsible under the terms and
conditions of this Lease.
ARTICLE XX
Holding Over Successors
SECTION 20.01 Holding Over.
In the event Tenant remains in possession of the Leased Premises after
the expiration of the tenancy created hereunder, and without the execution of a
new lease, Tenant, at the option of Landlord, shall be deemed to be occupying
the Leased Premises as a Tenant from month-to-month, at a monthly rent for the
first thirty (30) days equal to one hundred twenty-five percent (125%) of the
fixed minimum rent payable during the last month of the lease term and
thereafter at a monthly rent equal to two times the fixed minimum rent payable
during the last month of the lease term and a twenty-five percent (25%) increase
from each month
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occupying the Leased Premises thereafter. In addition to the fixed minimum rent
Tenant agrees to pay monthly all Additional Rent as provided for in this Lease.
SECTION 20.02 Successors.
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several respective heirs,
executors, administrators, successors, and permitted assigns of the said
parties; and if there shall be more than one Tenant, they shall be bound jointly
and severally by the terms, covenants and agreements herein. No rights, however,
shall inure to the benefit of any assignee of Tenant unless the assignment to
such assignee has been approved by Landlord in writing as provided in Section
11.01 hereof. Nothing contained in this Lease shall in any manner restrict
Landlord's right to assign or encumber this Lease and, in the event Landlord
sells or transfers its interest in VIA XXXXXX FINANCIAL PLAZA and the purchaser
or transferee takes assignment of Landlord's interest in this Lease, Landlord
shall thereupon be relieved of all further obligations hereunder.
ARTICLE XXI
Quiet Enjoyment
Upon payment by the Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Leased Premises for the term hereby demised without hindrance
or interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease.
ARTICLE XXII
Miscellaneous
SECTION 22.01 Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than an account of
the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying the check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy provided in the Lease by law.
SECTION 22.02 Entire Agreement.
This Lease and the Exhibits, and any Rider or Addendum, if any, attached
hereto and forming a part hereof, set forth all covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the Leased
Premises and there are no covenants, promises, conditions or understandings,
either oral or written, between them other than as herein set forth. All
understandings and agreements heretofore made between Landlord and Tenant
(including the agents and employees of either the Landlord or Tenant) are merged
into this Lease and any other written correspondence or agreements made prior to
the execution of this Lease are hereby terminated, and are null and void. This
Lease fully and completely expressed the agreements of the Landlord and Tenant
which lease is entered into by the Landlord
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and Tenant after full investigation by each party, neither party relying upon
any statement or representation not embodied in this Lease or other written
agreement executed simultaneously with this Lease. No provision of this Lease
may be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest.
SECTION 22.03 No Partnership.
Landlord does not, in any way or for any purpose, become a partner of
Tenant in the conduct of its business, or otherwise, or joint venturer or a
member of a joint enterprise with Tenant.
SECTION 22.04 Force Majeure.
In the event that either party hereto shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason of
strikes, lock-outs, labor troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots, insurrection, war or
other reason of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period of such delay. The
provisions of this Section 22.04 shall not operate to excuse Tenant from the
prompt payment of rent, percentage rent, additional rent or any other payments
required by the terms of this Lease.
SECTION 22.05 Notices.
(a) All notices shall be in writing and shall be deemed to have been
given upon receipt.
(b) Any notice by Tenant to Landlord must be served by certified or
registered mail, or private mail service, postage prepaid, addressed to Landlord
at the address first hereinabove given or at such other address as Landlord may
designate by written notice. Any notice by Landlord to Tenant must be served by
certified or registered mail, or private mail service, postage prepaid,
addressed to Tenant at the address first hereinabove given or at such other
address as Tenant may designate by written notice except as provided in
subparagraph (c) hereinafter.
(c) After commencement of the term hereof any notice by Landlord to
Tenant shall be served by hand delivery or private mail or delivery service,
postage prepaid, addressed to Tenant at the Leased Premises.
(d) Notice shall be deemed to be properly given if addressed to Tenant
at its last known address, if private mail or delivery service or certified mail
return receipt requested, postage pre-paid is refused or otherwise
undeliverable.
SECTION 22.06 Captions and Section Numbers.
The captions, section numbers, article numbers and index appearing in
this Lease are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or intent of such sections or articles of
this Lease not in any way affect this Lease.
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SECTION 22.07 Tenant Defined, Use of Pronoun.
The word "Tenant" shall be deemed and taken to mean each and every
person mentioned as a Tenant herein be the same, one or more and if there shall
be more than one Tenant any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same force and
effect as if given or to all thereof. The use of the neuter singular pronoun to
refer to Landlord or Tenant shall be deemed a proper reference even though
Landlord or Tenant may be an individual, a partnership, a corporation, or a
group of two or more individuals or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural sense
where there is more than one Landlord or Tenant and to either corporations,
associations, partnerships, or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
SECTION 22.08 Brokers Commission.
Each of the parties represents and warrants that it has dealt with no
broker or brokers in connection with the execution of this Lease, except as set
forth in Section (v) of the Lease Summary, and each of the parties agrees to
indemnify the other against, and hold it harmless from, all liabilities arising
from any claim for brokerage commissions or finder's fees resulting from the
indemnitor's acts (including, without limitation, the cost of counsel fees in
connection therewith) except as set forth in Section (v) of the Lease Summary,
and except as provided for in the following paragraph.
Notwithstanding the provisions of the paragraph hereinabove, Tenant has
reviewed, understands and acknowledges all of the provisions of that certain
Letter Agreement dated April 28, 1989 between Landlord and ROYAL LePAGE, and
Tenant agrees to and shall indemnify Landlord and save Landlord harmless from
and against all claims, actions damages, liability and expenses arising from or
out of any claim or demand for payment of a brokerage commission or compensation
by or due to ROYAL LePAGE in connection with or as a result of Landlord entering
into this Lease with Tenant, which indemnification shall include but not be
limited to reasonable counsel fees, whether incurred prior to or in litigation,
court costs, reasonable appellate counsel fees, punitive damages and
pre-judgment interest, if any.
SECTION 22.09 Partial Invalidity.
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, 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 each
term, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
SECTION 22.10 Effectiveness of Lease.
The submission of this Lease for examination does not constitute a
reservation of or option for the Leased premises and this Lease becomes
effective as a lease only upon execution and delivery thereof by Landlord to
Tenant, and the receipt of full security deposit, and if paid by check, subject
to clearance.
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SECTION 22.11 Recording.
Tenant shall not record this Lease or any memorandum thereof in any
public records without the written consent and joinder of Landlord.
SECTION 22.12 Liability of Landlord.
Anything contained in this Lease at law or in equity to the contrary
notwithstanding Tenant expressly acknowledges and agrees that there shall at no
time be or be construed as being any personal liability by or on the part of
Landlord under or in respect of this Lease or in any way related hereto or the
Leased Premises; it being further acknowledged and agreed that Tenant is
accepting this Lease and the estate created hereby upon and subject to the
understanding that it shall not enforce or seek to enforce any claim or judgment
or any other matter, for money or otherwise, personally or directly against any
officer, director, stockholder, partner, principal (disclosed or undisclosed),
representative or agent of Landlord, but will look solely to the Landlord's
interest in the VIA XXXXXX FINANCIAL PLAZA for the satisfaction of any and all
claims, remedies or judgments (or other judicial process) in favor of Tenant
requiring the payment of money by Landlord in the event of any breach by
Landlord of any of the terms, covenants or agreements to be performed by
Landlord under this Lease or otherwise, subject, however, to the prior rights of
any ground or underlying lessors or the holders of the mortgages covering the
VIA XXXXXX FINANCIAL PLAZA, and no other assets of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claims; such exculpation of personal liability as herein set forth to be
absolute, unconditional and without exception of any kind.
SECTION 22.13 Time of the Essence.
Time is of the essence of this Lease and each and all of its provisions
in which performance is a factor.
SECTION 22.14 Estoppel Information.
When the commencement date is determined, Tenant agrees, upon request
of Landlord, to execute and deliver to Landlord, without charge and within ten
(10) days following request therefor, a written declaration in form satisfactory
to Landlord: (i) ratifying this Lease; (ii) confirming the commencement and
expiration dates of the term of this Lease; (iii) certifying that Tenant is in
occupancy of the Leased Premises, the date Tenant commenced operating Tenant's
business therein and that this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended, except by such writings as
shall be stated; (iv) that all conditions under this Lease to be performed by
Landlord have been satisfied, except such as shall be stated; (v) that there are
no defenses or offsets against the enforcement of this Lease by Landlord, or
stating those claimed by Tenant; (vi) reciting the amount of advance rental, if
any, paid by Tenant and the date to which rental has been paid; and (vii)
reciting the amount of security deposited with Landlord, if any. Tenant agrees
to execute and deliver similar declarations at any time and from time to time
and within ten (10) days following request therefor by Landlord or by any
mortgage lenders or ground or underlying lessor and or purchaser's of all or any
portion of VIA XXXXXX FINANCIAL PLAZA, and each of such parties shall be
entitled to rely upon such written declaration made by Tenant. Tenant's failure
or refusal to execute the declaration required hereunder within ten (10) days
following the request therefor will constitute a default hereunder and Landlord
shall have such rights and remedies against Tenant as is available to Landlord
for Tenant's default.
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41
SECTION 22.15 Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
SECTION 22.16 Choice of Law.
This Lease shall be governed by the laws of the State of Florida.
SECTION 22.17 Affirmative Waivers.
Tenant, on behalf of itself and any and all persons claiming through or
under Tenant, does hereby waive and surrender all right and privilege which it,
they or any of them might have under or by reason of any present or future law,
to redeem the Leased Premises or to have a continuance of this Lease after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as provided in this Lease. Landlord
and Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by either against the other on any matter whatsoever arising out of or
in any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Leased Premises, including, without limitation,
any claim of injury or damage, and any emergency and other statutory remedy with
respect thereto.
SECTION 22.18 Preparation of Lease.
The submission by Landlord of the Lease in draft form shall be deemed
submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed the
Lease and duplicate originals thereof shall have been delivered to the
respective parties.
SECTION 22.19 Counterparts.
This Lease may be executed in multiple copies, each of which shall be
deemed an original, and all of such copies shall together constitute one and the
same instrument.
SECTION 22.20 Acceptance of Funds by Landlord.
No receipt of money by the Landlord from the Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the Leased
Premises shall reinstate, continue or extend the term of this Lease or affect
any such notice, demand or suit.
SECTION 22.21 Radon Gas Notification.
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
regarding radon and radon testing may be obtained from your county public health
unit. Pursuant to ss.404.056(8), Florida Statutes.
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SECTION 22.22 Attachments.
Exhibits One, Two, A, B, C, D, E, F, G, H, I, J, K, L, M, N, Guaranty,
as well as any Riders or Addendums which are attached to this Lease are a part
of this Lease and are incorporated herein as if fully set forth herein.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
Lease on the day and year first above written.
VIA XXXXXX ASSOCIATES, a
Florida general partnership,
LANDLORD
BY: SVMP, LTD., a Florida
limited partnership, General
Partner of Via
Xxxxxx Associates
Signed, sealed and delivered BY: SVMP, INC., a Florida
In the presence of: corporation, General partner
of SVMP LTD.
/s/ (ILLEGIBLE)
----------------------------
/s/ Xxxxxxxx X. Xxxx BY: /s/ Xxxx Xxxxxx
---------------------------- --------------------------------
As to Landlord Xxxx Xxxxxx, President
(Corporate Seal)
Date: 1/31/92
--------------------------
Signed, sealed and delivered IVY MANAGEMENT, INC., a
in the presence of: Massachusetts corporation,
TENANT
/s/ (ILLEGIBLE) By: /s/ (ILLEGIBLE)
---------------------------- --------------------------------
(Corporate Seal)
/s/ Xxxxxxxx X. Xxxx
----------------------------
As to Tenant Date: January 31, 1992
1/31/99
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LIST OF EXHIBITS
EXHIBIT ONE - Site Plan of Via Xxxxxx Financial Plaza
EXHIBIT TWO - Additional Lease Agreement Provisions
EXHIBIT "A" - Plan of Leased Premises
EXHIBIT "B" - Legal Description
EXHIBIT "C" - Landlord's Work
EXHIBIT "D" - Tenant's Work
EXHIBIT "E" - Sign Specifications
EXHIBIT "F" - Heating and Air Conditioning Maintenance
Provision
EXHIBIT "G" - Maintenance and Cleaning Standards For Tenant
EXHIBIT "H" - Rules and Regulations of Via Xxxxxx Financial
Plaza
EXHIBIT "I" - Rules and Regulations for Tenant Construction
Work
EXHIBIT "J"- Formula for Calculation of Area Within Leased
Premises
EXHIBIT "K" - Intentionally Omitted
EXHIBIT "L" - Memorandum of Lease
EXHIBIT "M" - Subordination, Non-Disturbance and Attornment
Agreement
EXHIBIT "N" - Collateral Account Escrow Agreement
GUARANTY
44
Exhibit One
to
Lease Agreement
Between Via Xxxxxx Associates
and
Ivy Management, Inc.
Description: Site Plan of Via Xxxxxx Financial Plaza
Page 1 of 2
45
EXHIBIT ONE
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
The proposed improvements and plans of development depicted on this
Exhibit One are conceptual in nature and tentative in Landlord's anticipated
subsequent development of the site. Landlord has constructed only those
improvements known as 700, 798 and 000 X. Xxxxxxx Xxxxxxx. Xxxxxxxx
anticipates constructing additional improvements as depicted in this Exhibit,
however, Tenant acknowledges that the actual location, configuration,
elevation and dimensions of the additional improvements (if any) upon
completion of construction may vary from those improvements depicted hereon
due to marketing conditions, site plan revisions by the Landlord, change of
use by the Landlord, governmental permit and approval requirements, field and
construction conditions and marketing requirements of prospective tenants.
Landlord does NOT agree or represent to Tenant in any way that any
improvements or development as depicted on this Exhibit, other than the
improvements known as 700, 798, 800 and 000 X. Xxxxxxx Xxxxxxx, shall be
undertaken or completed. Tenant acknowledges that Landlord may (in Landlord's
sole discretion) expand and/or renovate 000 X. Xxxxxxx Xxxxxxx. Tenant
acknowledges that Tenant has not relied upon any information or the depiction
of any improvements on this Exhibit in entering this Lease other than as
expressly set forth in this narrative statement.
Page 2 of 2
46
EXHIBIT TWO
TO LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
1. Lease Commencement Date. See Section 1.03 of Article 1 of the Lease
Agreement.
2. Tenant Improvements. In accordance with the provisions of Article
III of this Lease, Tenant shall perform and construct all Tenant Improvements
described in Exhibit "D" annexed hereto and made a part hereof. Tenant shall
have the plans and specifications for the Tenant Improvements prepared and
finalized on or before February 1, 1992. It is understood and agreed by Tenant
that none of the materials to be incorporated into the Tenant Improvements would
result in a fabrication and/or delivery date which would result in the
construction of the Tenant Improvements being delayed beyond the Tenant
Improvement completion date of May 1, 1992. Tenant shall obtain a Tenant
Improvements building permit on or before February 25, 1992. Upon the completion
of the Tenant Improvements described in Exhibit "D" and obtaining a certificate
of occupancy for the Leased Premises from all governmental authorities having
jurisdiction over the Tenant Improvements, Landlord shall pay to Tenant a tenant
improvement allowance and an architectural interior design fee allowance of
Twenty-five Dollars ($25.00) per square foot for each square foot of rental
space (7,854 sq. ft.) for which Tenant pays rent to the Landlord. The tenant
improvement and architectural improvement allowance shall be paid by Landlord to
Tenant within ten (10) days from the date Landlord receives (a) written notice
from the Tenant advising that the Tenant Improvements are completed, (b) a copy
of the Tenant's certificate of occupancy, and (c) a Final Affidavit of
Contractor and Release of Liens from the Tenant Improvement Contractor. The
Tenant Improvement Allowance may not be assigned, transferred, pledged,
hypothecated, mortgaged or otherwise encumbered by the Tenant (nor may the
Tenant direct the payment of the Tenant Improvement Allowance to any third
party), and the payment of the Tenant Improvement Allowance shall be made
directly to the Tenant only.
3. Tenant Signage. Landlord shall allow (subject to Landlord's
approval, which approval shall not be unreasonably withheld) the Tenant to
install signage as follows: (i) on the existing directory in the elevator ground
floor lobby; (ii) the interior entrance of the Tenant's Leased Premises; and
(iii) on the existing building directory sign located on the east side of
700-798S. Federal Highway, Boca Raton, Florida located adjacent to the rear
entry provided, that all signage is of a first class design and construction and
consistent with the quality and character of VIA XXXXXX FINANCIAL PLAZA and
otherwise consistent with the provisions of Exhibit "E". Landlord and Tenant
agree that Tenant shall have signage on any other multi-user tenant information
signage provided by the Landlord which multi-user tenant information signage is
made available to substantially all of the other tenants in VIA XXXXXX FINANCIAL
PLAZA. Tenant acknowledges and agrees that all signs and informational material
must comply with the ordinances and codes of the city of Boca Raton and any
other governmental entities having jurisdiction over such installation.
-1-
47
4. Renewal Options.
Number of Option Terms: Two
Duration of Each Option Term: Five Years
Provided Tenant is in good standing and not in default under this
Lease, Landlord hereby gives and grants to Tenant the right, privilege and
option of extending the Lease for two (2) terms as set forth above. The first
extended term will commence on the date of the expiration of this Lease.
Provided the Tenant has exercised the option for the first extended term and is
in good standing and not in default under this Lease during the first extended
term, the second extended term will commence on the date of the expiration of
the first extended term. In order to exercise the option herein granted, Tenant
must give written notice of Tenant's intention to exercise the option to extend
not less than nine (9) months prior to the expiration of the current term, or
the first extended term, as the case may be. All of the terms, covenants and
conditions of this Lease will apply during each option term except the Fixed
Minimum Annual Rent will be adjusted as follows: Upon Landlord receiving notice
from Tenant of Tenant's election to extend the Lease for each option term
provided for hereinabove, then Landlord shall within one hundred eighty (180)
days from the receipt of Tenant's notice issue written correspondence to the
Tenant which shall contain the Fixed Minimum Annual Rent which Landlord has
established for the first year of the option term. If the Tenant finds the Fixed
Minimum Annual Rent charge established in Landlord's correspondence
unacceptable, Tenant shall notify Landlord within ten (10) days of receipt of
Landlord's correspondence, and the Landlord and the Tenant shall each select an
independent appraiser within ten (10) days from the date Landlord receives
Tenant's notice. The two (2) independent appraisers shall then select a third
appraiser and the three (3) appraisers shall each independently establish a fair
market rental value for the first year of the option term. Each of the
appraisers described above shall be members of the American Institute of Real
Estate Appraisers, Members Appraisal Institute and shall be familiar with and
conduct the majority of their business in Broward or Palm Beach County, Florida.
The fair market rental values established by the three (3) appraisers shall then
be averaged together and the Fixed Minimum Annual Rent binding upon the Landlord
and Tenant shall be the average of the three (3) appraisals; provided, however,
notwithstanding the result of the appraisal process provided for hereinabove,
the Fixed Minimum Annual Rent for the first year of each option term shall not
be less than the Fixed Minimum Annual Rent for the year preceding the first year
of the option term. This appraisal process procedure shall apply to the first
option term and the second option term of the Tenant, if the Tenant exercises
each of its renewal options. The cost and expense of the appraisal process shall
be the equal responsibility of the Landlord and the Tenant.
5. Parking Provisions. Notwithstanding the provisions of Section 2.04
of the Lease during the first four (4) years of the term of this Lease, the cost
of operating the parking facilities for the Leased Premises and VIA XXXXXX
FINANCIAL PLAZA will be shared prorata by the tenants of VIA XXXXXX FINANCIAL
PLAZA in accordance with the provisions of Section 2.06 of the Lease. Subsequent
to the fifth year of the Lease, the Landlord may at the Landlord's option,
continue to collect the cost of operating the parking facilities in accordance
with the provisions of Section 2.06 or the Landlord may elect to exercise the
rights of the Landlord set forth in Section 2.04 to operate the parking
facilities under a charge for parking system.
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48
Subject to the provision of Section 2.04 of the Lease, Landlord shall
provide to Tenant during the first four (4) years of the term of the Lease: (a)
three (3) parking spaces for each thousand square feet of rental space; and (b)
four (4) of the spaces provided for in item (a) above shall be designated
"reserved", shall be located in the parking garage, and shall be exclusively for
the use of the Tenant or its designees. It is further agreed that if a charge
for parking system is adopted by the Landlord, as set forth in Section 2.04 of
the Lease, then the Tenant shall pay a charge for parking not greater than the
minimum charge imposed by Landlord upon any other Tenant within VIA XXXXXX
FINANCIAL PLAZA
6. Tenant Cancellation Provision and Penalty. Tenant may elect to cancel
this Lease at any time after September 30, 1997. This cancellation provision
shall terminate upon the Lease Expiration Date (as set forth in subparagraph (k)
of the Lease Summary). This cancellation provision applies only to the Leased
Premises identified in Section 1.01 of the Lease Agreement. To exercise the
cancellation provision, the Tenant shall provide to the Landlord: (a) written
notice of Tenant's election to cancel this Lease, which notice shall refer
specifically to the cancellation provision contained in this Paragraph 5 of
Exhibit Two to the Lease Agreement; and (b) the written notice shall contain a
non-refundable cancellation penalty payment (which shall be deemed earned by the
Landlord upon receipt) in the sum of $240,332.40, which payment shall be made by
a cashier's check payable to the Landlord and drawn on a bank in the State of
Florida.
7. Lease Guaranty Collateral.
a. Landlord and Tenant agree that during the term of this Lease Tenant
shall not be required to maintain a lease guaranty collateral escrow account as
provided for in the subparagraph (b) of this Paragraph 6, provided that the
Guarantor shall have a Total Stockholders' Equity at the time of the execution
of this Lease of not less than Seven Million Dollars (U.S.$7,000,000.00) and
beginning January 31, 1992 and continuously thereafter the Guarantor shall
maintain a Total Stockholders' Equity during the term of this Lease of not less
than Eight Million Dollars (U.S.$8,000,000.00). The Total Stockholders' Equity
of the Guarantor shall be established by the quarterly Report, Form l0-Q,
prepared by the Guarantor and submitted to the United States Securities and
Exchange Commission. Simultaneously with the l0-Q filing to the U.S. Securities
and Exchange Commission, the Guarantor shall submit to the Landlord a copy of
the l0-Q for Landlord's examination and review. If the Guarantor fails to file a
l0-Q or is no longer required to do same, then in that event, the net worth of
the Tenant shall be established by a written certification of the certified
public accountant of the Guarantor issued to the Landlord which shall state the
Total Stockholders' Equity of the Guarantor calculated in accordance with
generally accepted accounting principles and using the same format and
calculations as were used in determining the Total Stockholders' Equity in
previously filed Form l0-Qs submitted by the Guarantor to the U.S. Securities
and Exchange Commission. The certified public accountant of the Guarantor shall
be licensed to practice in the State of Florida and the written certification of
Total Stockholders' Equity shall be delivered to the Landlord on or before
November 15th of each calendar year for the period April 1st through September
30th, and on or before May 15th of each calendar year for the period October 1st
through March 31st. In addition, the Guarantor shall deliver to the Landlord on
or before June 1st of each calendar year an audited financial statement of the
Guarantor prepared in accordance with generally accepted accounting principles
by a certified public accountant
-3-
49
licensed to do business in Florida. If any l0-Q (or certification if applicable
or the annual audited financial statement, if applicable) provided for above
reflects a Total Stockholders' Equity of the Guarantor which is less than the
amounts required above, them in that event within ten (10) business days from
the date Tenant receives written notification from the Landlord of such
circumstance, Tenant shall establish a collateral escrow account as provided for
in subparagraph (b) of this Paragraph 7. The failure of the Tenant to execute
and fund the Collateral Account Escrow Agreement within five (5) business days
of written notification from Landlord in accordance with the terms of
subparagraph (b) of this Paragraph 7 shall constitute a default in this Lease.
b. Landlord and Tenant agree that if Tenant is required to establish a
collateral escrow account pursuant to the provisions of subparagraph (a) of this
Paragraph 7 (hereinafter referred to as "Collateral Account"), then such
Collateral Account shall constitute a fund to guaranty payment of the Tenant's
obligations under the terms of this Lease. The Collateral Account shall be
established at Xxxxxxx Bank of Florida, 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, (or such other bank acceptable to Landlord and Tenant) and the
funds deposited in the Collateral Account shall be invested in United States
Treasury Bills, Bonds and Notes. Investment direction of the Collateral Account
shall be the responsibility of the Tenant and all interest earned in the
Collateral Account shall be paid to Tenant. The minimum required balance in the
Collateral Account shall be as set forth hereinafter:
Lease Year Account Balances
---------- ----------------
1 $823,932
2 823,932
3 719,490
4 615,048
5 510,606
6* 406,164
* And any option Terms (if any)
The terms and conditions of the release of the funds in the Collateral Account
to the Landlord and/or to the Tenant shall be set forth in a collateral account
escrow agreement to be entered into by Landlord and Tenant. The form of the
collateral account escrow agreement is attached hereto and made a part hereof as
Exhibit "N".
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50
EXHIBIT "A" TO
LEASE AGREEMENT
BETWEEN
VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
Description: Xxx Xxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxx 000
Xxxxxx Xxxxx Xxxx
00
EXHIBIT "B"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
A portion of blocks 22, 33, 25A, 26 "De Xxxx Road","S.E. 0XX Xxxxxx", and
S.E.8th Street as shown on the plat of Spanish River Land Company's Plat "A", as
recorded in Plat Book 16, Pages 27 through 30, inclusive of the Public Records
of Palm Beach County, Florida and a portion of lot 33, as recorded in Plat Book
of Xxxxxx Development Corporation Plat 1, as recorded in Plat Book 3, Page 37 of
the Public Records of Palm Beach County, Florida, being more particularly
described as follows:
Commencing at the southwest corner of said Block 25A; thence South along the
east right-of-way line of that 80.00 foot right-of-way for Federal Highway, as
shown on said Plat, a distance of 5.00 feet; thence east a distance of 28.00
feet to the Point of Beginning; thence continuing east, a distance of 142.00
feet; thence north, a distance of 190.00 feet; thence east, a distance of 18.00
feet; thence north, a distance of 72.45 feet to a point of intersection with the
southerly boundary line of the plat "Boca Raton Hotel and Club", as recorded in
Plat Book 53, Page 129 of the Public Records of Palm Beach County, Florida;
thence northwesterly along said southerly boundary line along the arc of a curve
to the right whose radius point bears N. 400 43'32" E. having a radius of 375.00
feet, a central angle of l50 50'09", an arc distance of 103.64 feet to a point;
thence west, a distance of 91.73 feet; thence south, a distance of 340.00 feet
to the Point of Beginning; said lands situate in the City of Boca Raton, Palm
Beach County, Florida.
52
EXHIBIT "C"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND
IVY MANAGEMENT, INC.
LANDLORD'S WORK
Landlord shall provide all labor, materials and expense to complete
Base Building Improvements. Base building shall include but not be limited to
complete finished elevator lobby, complete men's and women's lavatories,
complete IIVAC system, excluding mixing boxes, run outs, area controls and
louvers.
53
EXHIBIT "D"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
TENANT'S WORK AND ALTERATIONS
1. SUBMISSION OF PLANS AND SPECIFICATIONS. Tenant shall make no changes
or alterations in or to the Leased Premises of any nature without Landlord's
prior written approval. Prior to commencing any work in the Leased Premises,
Tenant shall submit to Landlord for Landlord's written approval complete
drawings plans and specifications (herein collectively referred to as "Tenant's
Plan") for the improvements and installations to be made by Tenant (herein
collectively referred to as "Tenant's work"). Tenant's Plan shall be fully
detailed, shall show complete dimensions, shall not be conflict with Landlord's
basic plans for the Building, shall not require any changes in the structure of
the building and shall not be in violation of any laws, orders, rules or
regulations of any governmental department or bureau having jurisdiction of the
Leased Premises.
2. REVIEW OF PLANS BY LANDLORD. After submission to Landlord of
Tenant's Plan, Landlord shall either approve same or shall set forth in writing
the particulars in which Landlord does not approve same, in which latter case
Tenant shall, within five(5) days after Landlord's notification, return to
Landlord appropriate corrections thereto. Such corrections shall be subject to
Landlord's reasonable approval. Excepting construction of the initial Tenant
improvements made prior to Tenant's occupancy, Tenant shall pay to Landlord,
promptly upon being billed and as Additional Rent, any charges or expenses
Landlord may incur in reviewing Tenant's Plan. Tenant agrees that any review or
approval by Landlord of Tenant's Plans i~ solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant with respect to the
adequacy, correctness or efficiency thereof or otherwise.
3. REVISIONS BY TENANT. Tenant further agrees that if Tenant makes any
changes in Tenant's Plan subsequent to its approval by Landlord and if Landlord
consents to such changes, Tenant shall pay to Landlord all costs and expenses
caused by such changes, which Landlord may incur or sustain by reason of delays
or changes necessitated in the performance by Landlord of any construction or
work it is performing in the Building; it being understood and agreed, however,
that Landlord shall have the right to refuse to consent to any such changes. Any
charges payable under this Paragraph 3 shall be paid by Tenant from time to time
upon demand as Additional Rent, whether or not the Lease term shall have
commenced.
4. CORRECTIONS BY LANDLORD. If Tenant fails to correct Tenant's Plan in
any particular as hereinabove required, Landlord shall have the right to make
such corrections on Tenant's behalf; but the foregoing right shall not preclude
the exercise b~ Landlord of any other right or remedy which it may have in such
event.
5. DILIGENT COMPLETION. Following compliance by Tenant with its
obligation under the foregoing paragraphs, Tenant shall
-1-
54
timely commence Tenant's Work in order to complete 1- same within a reasonable
period of time. Tenant's Work shall be diligently pursued and shall be performed
in a good and xxxxxxx like manner.
6. WORK SCHEDULES. Tenant agrees that in the performance of Tenant's
Work (i) neither Tenant nor its agents or employees shall interfere with the
work being done by Landlord and its agents and employees, (ii) that Tenant shall
comply with any reasonable work schedule, rules and regulations proposed by
Landlord, its agents or employees, (iii) that the labor employed by Tenant shall
be harmonious and compatible with the labor employed by Landlord in the
Building, it being agreed that if in Landlord's judgment the labor is
incompatible Tenant shall forthwith upon Landlord's demand withdraw such labor
from the Leased Premises, (iv) that Tenant shall procure and deliver to Landlord
workmen's compensation, public liability, property damage and such other
insurance policies, in such amounts as shall be reasonably acceptable to
Landlord in connection with Tenant's Work, and shall upon Landlord's request
cause Landlord to be named as an insured thereunder, (v) that Tenant shall hold
Landlord harmless from and against any and all claims arising from or in
connection with any act or omission of Tenant or its agents or employees, (vi)
that Tenant's Work shall be performed in accordance with the approved Tenant's
Plan and in compliance with the laws, orders, rules and regulations of any
governmental department or bureau having jurisdiction of the Leased Premises,
and (vii) that Tenant shall promptly pay for Tenant's Work in full and shall not
permit any lien to attached to the Leased Premises or the Building.
7. COST ESTIMATES.
(a) Landlord's approval of Tenant's Plans, Tenant shall submit to
Landlord cost estimates certified by Tenant's architect for such work. Landlord
shall review such estimates in order to determine if they accurately reflect the
cost of Tenant's Work. The determination of Landlord shall control and be
binding on: the parties unless there is more than a fifteen percent (15%)
variance in the costs, as estimated by Landlord and Tenant's architect. If there
is more than said fifteen percent (15%) variance Landlord shall appoint an
architect and Landlord's architect and Tenant's architect shall promptly proceed
to settle the dispute as arbitrators (and if they are not able to settle the
dispute, shall appoint a third architect, in which case the three architects
shall proceed to settle the dispute as arbitrators) and the determination of
said architects shall be conclusive. If a third architect is appointed as
aforesaid his fees shall be paid by Tenant. The provisions of this subparagraph
(a) of Paragraph 7 shall not apply to the initial Tenant improvements made prior
to Tenant's occupancy.
(b) Excepting construction of the initial Tenant improvements made
prior to Tenant's occupancy, upon a final determination being made of the
estimated cost of Tenant's Work, as provided in subparagraph (a) above (and
prior to Tenant's commencing any work) Tenant shall deliver to Landlord, to
secure the prompt and proper completion of Tenant's Work an irrevocable,
unconditional, negotiable letter of credit, issued by and drawn on a New York
Clearing House bank in a form reasonably satisfactory to Landlord, in an amount
equal to the aggregate of (i) the aforesaid final cost estimate and (ii) ten
percent (10%) of such sum. Such letter of credit shall be for one year and shall
be renewed by Tenant each and every year until Tenant's Work is completed and
shall be delivered to Landlord not less than thirty (30) days prior to the
expiration of the then current letter of credit. Failure to deliver such new
letter of credit on or before said date shall be a material breach of this
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55
Lease and Landlord shall have the right, INTER ALIA, to present the then current
letter of credit for payment.
(c) Upon (i) the completion of Tenant's Work ii accordance with the
terms of this Paragraph and (ii) the submission to Landlord of proof evidencing
the payment in full for Tenant's Work, including, without limitation, lien
waivers, the letter of credit (or the balance of the proceeds thereof, if
Landlord has drawn on said letter of credit) shall be returned to Tenant.
(d) Upon the Tenant's failure to properly perform complete and fully
pay for Tenant's Work, as determined b~ Landlord, Landlord shall be entitled to
draw down on the letter of credit to the extent it deems necessary in connection
with Tenant's Work, the restoration and/or protection of the Leased Premises or
the Building and the payment or satisfaction of any costs, damages or expenses
in connection with the foregoing and/or Tenant's obligations under this
Paragraph.
8. FULL PAYMENT. All fixtures and equipment installed or used by Tenant
in the Leased Premises shall be fully paid for by Tenant in cash and shall not
be subject to conditional bills of sale, chattel mortgage or other title
retention agreements.
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56
EXHIBIT "E"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
SIGN SPECIFICATIONS
Subject to the provisions of Exhibit Two, Tenant acknowledges and agrees
that all Tenant signage shall be in accordance with the conditions and
limitations set forth in the Individual Development Approval DDRI XXX NO. CRP
88-4 issued pursuant to the Boca Raton Community Redevelopment Area Downtown
Development of Regional Impact Development Order.
57
EXHIBIT "F"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
HEATING AND AIR CONDITIONING MAINTENANCE PROVISION
1. For any equipment or component exclusively serving the Leased
Premises, Tenant must obtain a full-service maintenance contract with a licensed
contractor (the "Contractor") acceptable to Landlord, with service to be
performed not less frequently than quarterly. Tenant must provide evidence of
such service contract to Landlord prior to occupancy and thereafter provide
evidence of any contract renewal or change, as it may occur.
2. The Contractor shall park, deliver, and use entrances, stairwells,
elevators and other areas only as designated by Landlord. Access to the roof, if
required for service, will be permitted only with express prior consent of
Landlord (with a minimum 24-hour notice except in the case of emergencies).
3. The Contractor's access to the Leased Premises will be provided by
the Tenant and will be allowed only during normal business hours.
4. The Contractor's employees are to be identified by means of company
uniforms or identification badges, and the Contractor's vehicles by means of
signs.
5. No work is to be performed in the common areas unless required for
access to Tenant's equipment. Any service by the Contractor which could or will
result in the interruption of mechanical/electrical, plumbing or other services
to the Building or to any other tenant in the Building may occur only with
Landlord's express prior consent (with a minimum 48-hour notice to Landlord),
and must occur prior to 7:00 a.m. or after 8:00 p.m. or at such other time as
Landlord may designate.
6. In the event a Tenant system or component is to be replaced, Tenant
is required to inform Landlord prior to the commencement of any work and must
abide by the provisions of Article III, and Exhibits D and 1 of the Lease.
Additionally, Tenant must provide Landlord with evidence of warranty(ies) upon
request for the original system or any replaced system.
58
EXHIBIT "G"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
MAINTENANCE AND CLEANING STANDARDS FOR TENANT
(MULTI-TENANT BUILDING)
OFFICE/WORK AREAS
1. Empty and damp-wipe ashtrays and cigarette urns (daily)
2. Empty and clean all waste baskets and remove waste to a designated container
(daily).
3. Refill waste baskets with plastic liners (daily).
4. Sweep all hard-surface flooring with treated dust mops; damp-mop (daily).
5. Spills, any other substance or material on the floors or any condition on
the floor creating a hazardous condition and any stain on the floor shall be
cleaned up and removed immediately.
6. Vacuum all traffic area carpet (daily).
7. Edge vacuum (with edging tool) all baseboard areas, corners, behind doors,
and around furniture legs and bases (weekly).
8. Spot clean carpeting (daily).
9. Hand dust all office furniture, furnishings, and horizontal surfaces
(daily).
10. Spot-clean walls (daily).
11. Hand dust ledges and vertical surfaces (weekly).
12. spray-buff resilient floors (weekly).
13. Clean telephone handsets and bases with (weekly).
14. Clean air supply vents (monthly).
15. Clean lamps and light fixtures (monthly).
16. Vacuum upholstered furniture (monthly).
REST ROOMS
1. Wash and sanitize all wash basins, dispensers, fittings, and fixtures
(daily).
2. Wash and sanitize all lavatories, toilet bowls, and seats (daily).
3. Clean all mirrors, glass, and metal frames (daily).
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59
4. Empty all waste and sanitary product receptacles and remove waste to a
designated container (daily).
5. Refill waste and sanitary product receptacles with plastic liners (daily).
6. Damp-wipe exterior of all waste receptacles (daily).
7. Sweep, wash, and rinse all ceramic/vinyl tile flooring and fixture bases
with a disinfectant cleaner (daily).
8. Hand dust all xxxxx, partitions, ledges, and shelving (daily).
9. Spot-clean partitions, walls, doors, and frames (daily).
10. Replenish all toilet tissue, hand towels, soap, sanitary products, sanitary
disposal bags and toilet seat covers (daily).
11. Empty and damp-wipe cigarette urns (daily).
12. Clean air supply vents (monthly).
13. Clean lamps and light fixtures (monthly).
KITCHEN/FOOD SERVICE AREAS
1. Empty and damp-wipe ashtrays and cigarette urns (daily).
2. Empty and clean all waste baskets and remove waste to a designated container
(daily).
3. Refill waste baskets with plastic liners (daily).
4. Sweep, wash, and rinse all ceramic/vinyl tile flooring and fixture bases
with a disinfectant cleaner (daily).
5. Vacuum all traffic area carpet (daily).
6. Spot clean carpeting (daily).
7. Wash and sanitize all sinks, countertops, and appliance tops (daily).
8. Wash all table tops (daily)
9. Damp wipe ledges and vertical surfaces (weekly)
10. Clean air supply vents (monthly)
11. Clean lamps and light fixtures (monthly)
GENERAL
1. professional clean interior of all windows (not less frequently than
quarterly).
2. Touch-up paint and repainting (as needed).
3. Professional carpet cleaning and floor refinishing needed).
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60
EXHIBIT "H"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
BUILDING RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered, nor shall
they be used for any purpose other than ingress and egress to and from the
Leased Premises or Common Areas. No show cases or other articles shall be put in
front of or affixed to any part of the exterior of the Building, nor placed in
the halls, corridors or vestibules without the prior written consent of the
Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the Landlord's prior written consent. No curtains,
blinds, shades, interior window treatments or screens shall be attached to or
hung in, or used in connection with, any window or door of the Leased Premises,
without the prior written consent of the Landlord. Such awnings, projections,
curtains, blinds, shades, interior window treatments screens or other fixtures
must be of a quality, type, design and color, and attached in the manner
approved by the Landlord.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside of
the Leased Premises or the Building without the Landlord's prior written
consent. In the event of the violation of the foregoing, Landlord may remove
same without any liability, and may charge the expense incurred by such removal
to the Tenant or Tenants violating this rule. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for each Tenant by the
Landlord and the Tenant's expense and shall be of a size, color and uniform
style acceptable to the Landlord.
"Sign" (as used in the Lease and these Rules) is not limited to,
but shall include, raised or illuminated or backlit lettering. Any and all signs
shall be in accordance with applicable law and with aesthetic and other criteria
developed by the Building's architect.
4. The skylights, windows and doors that reflect or admit light into
the halls, passageways or other public places in the Building shall not be
covered or obstructed by any Tenant.
5. Lamps, other lighting, appliances, equipment, fixtures and machinery
in the Leased Premises demised to Tenants which use electrical energy or water
shall be disconnected or switched of f other than during hours (i) the Building
is required to be open, and (ii) the Tenant is open for business, except if and
to the extent necessary to prevent food spoilage or other health hazard, except
clocks, and except for items approved in writing as necessary for Tenant's
business.
6. The toilets and urinals and other plumbing fixtures in common areas
or in Leased Premises shall not be used for any
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61
purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown into them. All damages
resulting from any misuse of the fixtures shall be borne by the Tenant who, or
whose servants, employees, agents, visitors or licensees, shall have caused the
same. Waste and excessive or unusual use of water shall not be allowed.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the Leased Premises demised to him or it, or the Building of which they
form a part. Nor boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of the Landlord, and as the Landlord may
direct. The expense of any breakage, stoppage or damage resulting from a
violation of this Rule shall be borne by the Tenant who has caused such
breakage, stoppage or damage.
8. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Building, and no cooking shall be done or permitted by
any Tenant on the Building without written consent of Landlord which may be
withheld for any reason. No Tenant shall cause, suffer or permit any unusual or
objectionable odors or any nuisance, to be produced upon or permeate from any of
the Leased Premises demised to him or it.
9. No space on or in the Building shall be used for manufacturing, for
the storage or retail sale of tangible personal property of any kind, unless
Landlord gives its prior written consent to such manufacturing, storage or
retail sale, which consent may be unreasonably withheld.
10. No Tenant shall make, or permit to be made, any unusual or
disturbing noises, or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them. No Tenant shall throw
anything out of the doors, windows or skylights or down the elevator shafts or
along or across the hallways, lobby or other common areas.
11. No Tenant, nor any of the Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep fluid, chemical or
substance, or any matter forbidden or regulated by any insurance company at risk
with respect to all or any part of the Building.
12. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows, nor shall any changes be made in existing locks or the
mechanism thereof, without the express written consent of Landlord. Each Tenant
must, upon the termination of his Lease, return to the Landlord all keys and
access cards, either furnished by Landlord to, or otherwise procured by such
Tenant, and in the event of the loss of any keys so furnished, the Tenant shall
pay to the Landlord the cost thereof. Neither Tenants, nor their agents or
employees shall have any duplicate keys made.
13. All furniture, building supplies and materials, safes and other
heavy property, equipment, machinery and other freight must be moved into and
within the Building under the Landlord's supervision and according to such
regulations as may be posted in the management office of the Building, but
Landlord will not be responsible for loss of or damage to such freight from any
cause.
14. When electric wiring of any kind is introduced it must be connected
as directed by the Landlord and no boring or cutting for wires will be allowed
except with the Landlord's consent. The location of telephones, telegraph
instruments, electric appliance, call boxes, etc., shall be Prescribed, by the
Landlord.
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62
No apparatus of any kind shall be connected with the electric wiring without the
written consent of the Landlord. The Tenant agrees not to use or connect with
the electric wires any more lights than are provided for in each room, or any
electric lamp of higher candlepower than provided, or any fan, motor or other
apparatus without the Landlord's written consent. The Tenant agrees not to
connect with the water pipes any apparatus using water, without the express
prior written consent of the Landlord.
15. Landlord shall have the right to prohibit any advertising by and
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an Building for offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
16. The Leased Premises shall not be used for lodging or sleeping or
for immoral or illegal purposes.
17. The requirements of Tenant will be attended to only upon
application at the management office of the Building. Building management
employees and contractors shall not perform any work or do anything outside of
their regular duties, unless under special instructions from the Landlord.
18. Canvassing, soliciting and peddling in the Building or surrounding
area is prohibited and each Tenant shall cooperate to prevent the same.
No part of the Building Common Areas shall be used by any Tenant,
or any agent or employee of a Tenant, for any advertising, political campaigning
or other similar use, including, without limitation, the dissemination of
advertising or campaign leaflets or flyers.
19. The Landlord may waive or modify any one or more of these rules for
the benefit of any particular Tenant of the Building, but no such waiver by the
Landlord of any such rule or rules shall be construed as a waiver or
modification of such rule in favor of any other Tenant or Tenants of the
Building, nor prevent the Landlord from thereafter enforcing any such rule
against any or all of the Tenants of the Building.
20. Landlord reserves the right to make such other and further rules
and regulations as in its judgment may from time to time be necessary for the
safety and cleanliness of, and for the preservation of good order in the
Building and its Common Areas. If a segment of the parking lot is designated for
use by Tenant and its employees, Tenant will cooperate with Landlord in having
its employees only park therein.
21. Reference to Landlord herein shall at Landlord's discretion refer
to the then building manager, if any.
22. No materials may be stored or temporarily placed in halls,
stairwells, elevators or any Common Areas. Any materials of the Tenant will be
safely and cautiously brought upon through the halls, stairwells, elevators or
any Common Areas. Tenant will clean any refuse or remove any materials from
these areas.
23. Tenant shall have access to the roof of the Building only for he
purpose of maintaining and repairing that part of the heating, air conditioning
and ventilating system individually serving that Tenant's Leased Premises
located thereon, subject to the following:
(a) Only professional maintenance or repair persons designated by
the Tenant may enter onto the roof.
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63
(b) Roof access is only permitted during daylight hours.
(c) Tenant assumes full responsibility for the acts of such
professionals and will reimburse any other party for any damage caused to person
or property by such professionals or the Tenant's employees or agents to the
transmitting and receiving devices and other systems and/or machinery on the
roof.
(d) Tenant shall give prior notice to Landlord of Tenant's intention
to allow its employees or agents on the roof.
24. Business machines and mechanical equipment used by any Tenant of
the Building which cause vibration or noise that may be transmitted to any other
portion of the Building, to such a degree to be reasonably objectionable to
Landlord or any other Tenant, shall be placed and maintained by such Tenant at
its expense in a setting of cork, rubber, or spring-type vibration isolators
sufficient to eliminate such vibrations or noise.
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64
EXHIBIT "I"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
RULES & REGULATIONS FOR TENANT CONSTRUCTION WORK
1. All work shall be performed between 7:00 a.m. and 8:00 p.m. Monday
through Friday. Night/weekend/holiday schedule only with prior consent of
Landlord, with a minimum 24-hour notice to Landlord (any additional security
costs to be the sole responsibility of Tenant).
2. Tenant shall provide a list of contractor, subcontractors,
materialmen, suppliers, etc. to Landlord upon request.
3. Tenant's contractor shall not order or consign shipments to Leased
Premises in Landlord's name. Landlord has no responsibility for
accepting/receiving materials and supplies (Landlord held harmless from theft,
casualty, etc. of materials, supplies, equipment, etc.).
4. Tenant's contractor shall abide by all federal, state and local
laws, including but not limited to laws and regulations effecting the safety of
persons and property on the leased Premises or in VIA XXXXXX FINANCIAL PLAZA.
5. Tenant's contractor shall not interfere with any work being
performed in or on VIA XXXXXX FINANCIAL PLAZA or with the conduct of business of
any other tenant.
6. All Tenant construction activities are to be coordinated through the
office of Landlord.
7. Tenant's contractor shall remove all trash and debris (including
dust, spills, stains, etc.) daily or as often as needed so there is no
cumulation in or about the Leased Premises and never in the Common Area(s). Any
trash or debris in Common Area(s) may only be in transit. Use of common trash
container or any other container in or about VIA XXXXXX FINANCIAL PLAZA may
occur only with prior written consent of Landlord. Contractor may provide its
own container only with prior written consent of Landlord and in area designated
by Landlord which container must be emptied daily or more often if needed.
8. Work is shall be performed only in the Leased Premises in Common
Areas except connections, if necessary, plumbing for mechanical/electrical,
security, or communications
9. Tenant shall secure utility services prior to commencement of any
work. If Tenant's contractor utilizes Landlord's or Common Area utilities
(water, electric, etc.), Tenant will pay Landlord $100.00/day for such usage.
10. Any interruption of building or other Tenant mechanical/electrical
(including HVAC),plumbing, security or
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65
communications services required due to connection shall occur only with
Landlord's express prior consent (with a minimum 48-hour notice to Landlord),
and must occur prior to 7:00 a.m. or after 8:00 p.m. or at such other time as
Landlord may designate.
11. Contractors shall park, deliver, and use entrances, stairwells,
elevators, and other areas only as designated by Landlord. Access to the roof,
if required, will be permitted only with express prior consent of Landlord (with
a minimum 46-hour notice).
12. No fumes or odors (including but not limited to paint, varnish, or
solvents) will be permitted to permeate the Common Areas within VIA XXXXXX
FINANCIAL PLAZA or other Tenant premises. Any use of such materials that may
activate life safety systems is permitted only with express prior consent of
Landlord (with a minimum 46-hour notice).
13. Tenant and Tenant's contractor are responsible for any damage to VIA
XXXXXX FINANCIAL PLAZA, Common Areas, or other Tenant premises that may occur as
a result of Tenant's construction or construction activities.
14. Any damage, accident, or casualty that occurs during the Tenant's
construction must be reported by a written damage report and/or
accident/casualty report submitted by the Tenant to the Landlord. Such written
report shall be delivered to Landlord no later than forty-eight (48) hours after
the damage, accident or casualty occurs.
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66
EXHIBIT "J"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
FORMULA FOR CALCULATION OF
AREA WITHIN LEASED PREMISES
1. GROUND FLOOR RENTABLE AREA.
The square feet in a ground floor area shall be computed by measuring
from the exterior building walls and from the inner surface of corridor and
other permanent partitions and to the center of partitions that separate the
premises from adjoining rentable areas.
No deduction shall be made for vestibules inside the building line or
from columns or projections necessary to the building.
2. UPPER FULL FLOOR RENTABLE AREA.
The rentable area of all floors above the ground floor shall be computed
by measuring to the inside finished surface of the dominant portion of the
permanent outer building walls excluding any major vertical penetrations of the
floor.
No deductions shall be made for columns and projections necessary for
the building.
3. MULTIPLE TENANT FLOOR USABLE AREA.
The usable area of an office shall be computed by measuring the finished
surface of the office side of corridor and other permanent walls, to the center
of partitions that separate the office from adjoining usable areas, and to the
inside finished surface of the dominant portion of the permanent outer building
walls.
No deductions shall be made for columns and projections necessary to the
building.
4. MULTIPLE TENANT FLOOR RENTABLE AREA.
The rentable area of an office on the floor shall be computed by
multiplying the usable area of that office by quotient of the division of the
total rentable area of the floor by the total usable area of the floor.
Total Rentable
Area of the
Rentable Area of Office = Usable Area x Floor
of Office --------------
Total Usable
Area of the
Floor
For purposes of calculating the Rentable core area will not exceed
eighteen percent (18%)of the Total Rentable Area of the Floor. Total Rentable
Area for a Multiple Tenant Floor as set forth in this Paragraph 4 shall be the
same
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67
as Total Rentable Area for an Upper Full Floor as set forth in Paragraph 2
above.
DEFINITIONS:
(a) "Finished Surface" shall mean a wall, ceiling or floor surface,
including glass, as prepared for tenant use, excluding the thickness of
any special surfacing material such as paneling, furring strips and
carpet.
(b) "Dominant Portion" shall mean that portion of the inside finished
surface of the permanent outer building wall which is 50% or more of the
vertical floor-to-ceiling dimension measured at the dominant portion. If
there is no dominant portion, or if the dominant portion is not
vertical, the measurement for area shall be to the inside finished
surface of the permanent outer building wall where it intersects the
finished floor.
(c) "Major Vertical Penetrations" shall mean stairs, elevator shafts,
flues, pipe shafts, vertical ducts, and the like, and their enclosing
walls, which serve more than one floor of the building, but shall not
include stairs, dumb-waiters, lifts, and the like, exclusively serving a
tenant occupying offices on more than one floor.
(d) "Office" shall mean the premises leased to a tenant for which a
measurement is to be computed.
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68
EXHIBIT "K"
TO
LEASE AGREEMENT
Between VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
INTENTIONALLY OMITTED
---------------------
69
EXHIBIT "L"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
MEMORANDUM OF LEASE
(SHORT FORM)
THIS MEMORANDUM OF LEASE, made as of the _________ day of ____
__________, l9__, by and between VIA XXXXXX ASSOCIATES, a Florida general
partnership, herein called the "Landlord", and IVY MANAGEMENT, INC., a
Massachusetts corporation, herein called the "Tenant".
W I T N E S S E T H T H A T
1. Landlord and Tenant have entered into a Lease of the following
described real property, situated in Palm Beach County, Florida, to-wit:
[The legal description to be inserted here shall be the
description in Exhibit "B" of the Lease.]
This Memorandum is intended to give all persons notice of the Lease
specifically including the notices expressly set forth in this Memorandum.
2. Tenant is precluded by the terms of said Lease from creating or
allowing to be created against Landlord's title to or interest in the demised
property, any mechanic's or materialman's liens, and all persons claiming by,
through, under or against Tenant, are hereby notified that Tenant has no power
or authority to subject the title or interest of Landlord, as fee owner of the
demised property, to any claim for any such lien. All persons dealing with
Tenant and claiming by, through, under or against Tenant shall look entirely to
Tenant for the payment of any and all charges incurred in improving the demised
property at any time during the term of the Lease.
3. The term of the Lease commences on _____________ and terminates on
_______________. As of the date of termination of the Lease, this Memorandum and
the notices provided hereunder shall cease and be deemed null and void. If
requested by Landlord, Tenant agrees upon termination of the Lease to execute a
cancellation and termination of this Memorandum.
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70
IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of
Lease to be executed as required by law, on the day and year first above
written.
VIA XXXXXX ASSOCIATES, a
Florida general partnership,
LANDLORD
BY: SVMP, LTD., A Florida
limited partnership
General Partner of Via
Xxxxxx Associates
BY: SVMP, INC., a Florida
Signed sealed and delivered corporation, General
in the presence of: Partner of SVMP, LTD.
By:
--------------------------- ---------------------------
Xxxx Xxxxxx, President
---------------------------
As to Landlord (Corporate Seal)
IVY MANAGEMENT, INC.,
Signed sealed and delivered a Massachusetts corporation,
in the presence of: Tenant
By:
--------------------------- ---------------------------
(Corporate Seal)
---------------------------
As to Tenant
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _____ day of
___________, 19__, by XXXX XXXXXX, president of SVMP, INC., a Florida
corporation, General Partner of SVMP, LTD., a Florida limited partnership,
General Partner of VIA XXXXXX ASSOCIATES, a Florida general partnership, on
behalf of VIA XXXXXX ASSOCIATES, a Florida general partnership who is personally
known to me and who did not take an oath.
-------------------------------------
Notary Public
My Commission Expires:
-------------------------------------
Printed Name of Notary
Notary commission No.:
----------------------
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71
STATE OF
-----------------
COUNTY OF
----------------
The foregoing instrument was acknowledged before me this _______ day of
'__________________, 199__, by ________________, ____________________ of IVY
MANAGEMENT, INC., a Massachusetts corporation, on behalf of said corporation,
who has produced ________________________ as identification and who did not take
an oath.
-----------------------------
Notary Public
My Commission Expires:
-----------------------------
Printed name of Notary
Notary Commission No.:
-------------
This instrument prepared by:
Xxxxx X. Xxxxxxx
Osborne, Hankins, MacLaren & Redgrave
X.X. Xxxxxx 00
Xxxx Xxxxx, Xxxxxxx 00000
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72
EXHIBIT "M"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND
IVY MANAGEMENT, INC.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
("Agreement") executed between FIRST UNION NATIONAL BANK OF FLORIDA
("Mortgagee") and IVY MANAGEMENT, INC., a Massachusetts ("Tenant").
WITNESSETH:
WHEREAS, VIA XXXXXX ASSOCIATES, a Florida general partnership,
("Landlord") has entered into a certain lease ("Lease) with Tenant dated
_________________, 19____, relating to the premises described in Exhibit "A"
attached hereto and made a part hereof ("Premises"); and
WHEREAS, Mortgagee has made a mortgage loan to Landlord evidenced by a
Mortgage and Security Agreement covering the premises dated ___________ , 19__
and recorded _________, 19__ in Official Records Book ____________ at Page___ of
the Public Records of Palm Beach County, Florida ("Mortgage"). NOW THEREFORE, it
is mutually agreed as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage
and to all renewals, modifications, consolidations, replacements and extensions
of the Mortgage.
2. In the event of a foreclosure of the Mortgage or should Mortgagee
obtain title by deed in lieu thereof, or otherwise, Mortgagee, for itself, its
successors or assigns, agrees that Tenant may continue its occupancy of the
Premises in accordance with the terms and provisions of the Lease, so long as
Tenant continues to pay rent and otherwise to perform its obligations under the
Lease. Mortgagee agrees not to name Tenant as a party defendant in any
foreclosure action.
3. Tenant agrees to attorn to: (a) Mortgagee when in possession of the
Premises; (b) a receiver appointed in an action or proceeding to foreclose the
Mortgage or otherwise; or (c) to any party acquiring title to the Premises as a
result of foreclosure of the Mortgage or deed in lieu thereof. Tenant further
covenants and agrees to execute and deliver, upon request of Mortgagee, or its
assigns, an appropriate agreement of attornment with any subsequent titleholder
of the Premises.
4. So long as the Mortgage on the Premises remains outstanding and
unsatisfied, Tenant will deliver to Mortgagee a copy of all notices permitted or
required to be given to Landlord by Tenant pursuant to which the Tenant proposes
to xxxxx or reduce the rental payable under the Lease or to terminate or cancel
the Lease, and that no such notices to Landlord shall be effective, unless a
copy of such notice is also delivered to Mortgagee. At any time before the
rights of Landlord shall have been forfeited or adversely affected because of
any default or
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73
failure of performance under the Lease as therein provided, Mortgagee shall have
the right (but not the obligation) to cure such default or failure of
performance within thirty (30) days, or a reasonable period of time (whichever
is the later to occur), from Mortgagee's receipt of such written notice from
Tenant stating the nature of such default or failure of performance.
5. Tenant certifies that the Lease has been duly executed by Tenant;
that Tenant has not made any side agreements with Landlord, except as disclosed
to Mortgagee; that no rent under the Lease has been paid more than thirty (30)
days in advance of its due date; and that Tenant, as of this date, has no
charge, lien or claim of offset under the Lease, or otherwise, against the rents
or other charges due or to become due thereunder.
6. If Mortgagee shall succeed to the interest of Landlord under the
Lease, Mortgagee shall be bound to Tenant under all the terms, covenants and
conditions of the Lease, and Tenant shall, from and after Mortgagee's succession
to the interest of Landlord under the Lease, have the same remedies against
Mortgagee for the breach of any agreement contained in the Lease that Tenant
might have had under the Lease against Landlord if Mortgagee had not succeeded
to the interest of Landlord; provided further, however, that Mortgagee shall not
be:
(a) liable for any warranty, act or omission of any prior landlord
(including Landlord); or
(b) subject to any offsets or defense which Tenant might have against
any prior landlord (including Landlord), except those which arose out of such
Landlord's default under the Lease and accrued after Tenant has notified
Mortgagee and given Mortgagee an opportunity to cure as provided herein; or
(c) bound by any rent or additional rent which Tenant might have paid
for more than the current month to any prior landlord (including Landlord); or
(d) bound by any amendment or modification of the Lease or any
collateral agreement made without Mortgagee's consent.
7. This Agreement shall be binding upon and inure to the benefit of the
heirs, successors and assigns of the parties.
8. MORTGAGEE AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS AND
THIRD-PARTY CLAIMS) ARISING IN CONNECTION WITH EACH OF THE PARAGRAPHS OF THIS
AGREEMENT,THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREIN,
AND ALL AND ANY COMBINATIONS OF THE FOREGOING. TENANT HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE MORTGAGEE NOR THE MORTGAGEE'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE MORTGAGEE WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE TILLS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. TENANT ACKNOWLEDGES THAT THE MORTGAGEE HAS BEEN INDUCED TO ENTER INTO
THIS LOAN, INCLUDING THIS AGREEMENT, BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
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74
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date indicated below their respective signatures.
Signed, sealed and delivered MORTGAGEE:
in the presence of:
FIRST UNION NATIONAL BANK OF
FLORIDA
By:
------------------------ -------------------------------
Title:
------------------------ ------------------------
Date:
-------------------------
Signed, sealed and delivered
in the presence of:
TENANT:
IVY MANAGEMENT, INC. a
Massachusetts corporation
By:
------------------------ -------------------------------
Title:
------------------------ ------------------------
Date:
-------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this __________ day
of ___________, l99_, by _____________, ____________ of FIRST UNION NATIONAL
BANK OF FLORIDA, on behalf of said corporation, who has produced ______________
______________ as identification and who did not take an oath.
------------------------------
Notary Public
My Commission Expires:
------------------------------
Printed Name of Notary.
Notary Commission No.
--------------
STATE OF _______________
COUNTY OF ______________
The foregoing instrument was acknowledged before me this _____ day of
________________, l99__, by __________________ of IVY MANAGEMENT, INC., a
Massachusetts corporation, on behalf of said corporation, who has produced
_______________________ as identification and who did not take an oath.
-----------------------------
Notary Public
My Commission Expires:
------------------------------
Printed Name of Notary
Notary Commission No.____________
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EXHIBIT "N"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND IVY MANAGEMENT, INC.
COLLATERAL ACCOUNT ESCROW AGREEMENT
This Collateral Account Escrow Agreement (the "Agreement") is entered
into this 31st day of January, l992 by and between VIA XXXXXX ASSOCIATES a
Florida' general partnership (the "Landlord") and IVY MANAGEMENT, INC., a
Massachusetts corporation (the "Tenant") and XXXXXXX BANK OF FLORIDA (the
"Escrow Agent")
WITNESSETH
WHEREAS, Landlord an Tenant have entered into a Lease Agreement dated
31ST day in January, 1992, pursuant to which Tenant will occupy leased premises
in Suite No. 201,798 S. Federal Highway, of Via Xxxxxx Financial Plaza
(hereinafter referred to as the "Lease"); and
WHEREAS, Paragraph 6 of Exhibit Two of the Lease provides that under
certain circumstances Landlord and Tenant enter into this Agreement for purposes
of establishing a Collateral Account to constitute a fund to guaranty payment of
the Tenant's obligations under the terms of the Lease; and
WHEREAS, XXXXXXX BANK OF FLORIDA has agreed to serve as Escrow Agent
under this Agreement;
NOW, THEREFORE, for and in consideration of the sum of $10.00 paid by
each of the parties hereto to the other parties, in further consideration of the
terms and provisions of the Lease and in consideration of other good and
valuable considerations delivered by the parties to each other, Landlord, Tenant
and Escrow Agent agree as follows:
1. If required by Paragraph 7 of Exhibit Two of the Lease, Tenant shall
deliver to Escrow Agent simultaneously with the execution of this Escrow
Agreement an amount equal to the required Account Balance for the Lease Year in
which the collateral account is required, to be held in escrow by Escrow Agent
pursuant to the terms and conditions of this Agreement.
2. The funds held in escrow pursuant to and in accordance with this
Agreement establish the Collateral Account as provided in the Lease and shall be
held by Escrow Agent as security to guarantee payment of Tenant's obligations
under the terms of the Lease as follows:
Escrow Funds Required
Lease Year Account Balances
---------- ----------------
1 $823,932
2 823,932
3 719,490
4 615,048
5 510,606
6* 406,164
*And any Option Terms (if any)
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3. Landlord and Tenant acknowledge and agree that the sums escrowed
with Escrow Agent pursuant to this Agreement shall be held to guaranty payment
by Tenant to Landlord of Tenant's obligations due and owing pursuant to the
Lease. If the payment of any obligation of Tenant is not received by Landlord
within fifteen (15) days of its due date, and further after ten (10) days
following written notice to Tenant of such non-payment, Landlord may deliver
written notice of such fact to Escrow Agent, together with an affidavit made
under oath by Landlord stating that a payment has not been received, and Escrow
Agent shall be authorized to disburse and shall disburse funds from the escrowed
monies under this Agreement to pay Landlord for such payment due from Tenant.
The Escrow Agent, upon receipt of the aforesaid written notice and affidavit,
shall deliver to Landlord from the funds escrowed pursuant to this Agreement the
delinquent payment due Landlord by Tenant as set forth in Landlord's notice and
affidavit.
4. Provided Tenant is not in default, Tenant shall be entitled to
receive from Escrow Agent any funds held by Escrow Agent in excess of the
Account Balance required for each Lease Year. Tenant shall request release of
any such excess funds by written notice to Escrow Agent AND Landlord at any time
such excess funds may exist. Escrow Agent shall release such excess funds within
fifteen (15) days of Tenant's request unless Escrow Agent has received written
notice from Landlord objecting to Tenant's request for excess funds together
with an affidavit under oath identifying the reason or reasons which constitute
the basis for the Escrow Agent to continue holding all or a portion of the funds
requested by Tenant.
5. The funds paid to Escrow Agent by Tenant pursuant to this Agreement
shall be deposited by Escrow Agent. The funds deposited shall be invested in
United States Treasury Bills, Bonds and Notes. Subject to the foregoing,
investment direction of the funds deposited shall be the sole responsibility of
Tenant and all interest earned on the funds deposited shall be paid to Tenant.
6. Any Escrow Agent receiving funds or equivalent pursuant to this
Agreement is authorized and agrees by acceptance thereof to deposit promptly and
to hold same in escrow and subject to clearance thereof to disburse same in
accordance with terms and conditions of this Agreement. Failure of clearance of
funds shall not excuse performance by the Tenant. In the event of doubt as to
Escrow Agent's duties or liabilities under the provisions of this Agreement, the
Escrow Agent may, in Escrow Agent's sole discretion, continue to hold the
subject matter of this escrow until the parties mutually agree to the
disbursement thereof, or until a judgment of a court of competent jurisdiction
shall determine the rights of the parties thereto, or Escrow Agent may deposit
same with the clerk of the circuit court having jurisdiction of the dispute, and
upon notifying all parties concerned of such action, all liability on the part
of the Escrow Agent shall fully terminate, except to the extent of accounting
for any items theretofore delivered out of escrow. In the event of any suit
between Landlord and Tenant wherein the Escrow Agent is made a part by virtue of
acting as an Escrow Agent hereunder, or in the event of any suit wherein Escrow
Agent interpleads the subject matter of this escrow, the Escrow Agent shall be
entitled to recover reasonable attorney's fees and costs incurred, said fees and
costs to be charged and assessed as court costs in favor of the prevailing
party. All parties agree that the Escrow Agent shall not be liable to any party
or person whomsoever for misdelivery to Landlord or Tenant of items subject to
this escrow, unless such misdelivery shall be due to willful breach of
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77
this Agreement or gross negligence on the part of the Escrow Agent.
7. This Agreement shall be deemed terminated and cancelled upon Escrow
Agent releasing all funds held pursuant to this Agreement. Upon the expiration
of the sixth (6th) lease year, Escrow Agent shall release all funds held
pursuant to this Agreement, not otherwise disbursed hereunder, to Tenant.
8. No prior or present agreements or representations shall be binding
upon any of the parties hereto unless incorporated in this Agreement. No
modification or change in this Agreement shall be valid or binding upon the
parties unless in writing, executed by the parties to be bound thereby.
9. This Agreement shall be construed and enforced in accordance with
the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Witnesses: VIA XXXXXX ASSOCIATES, a
Florida general partnership,
/s/ (ILLEGIBLE) Landlord
-------------------------
/s/ Xxxxxxxx X. Xxxx By: /s/ (ILLEGIBLE)
------------------------- ---------------------------
Witnesses: IVY MANAGEMENT, INC. a
Massachusetts corporation,
/s/ (ILLEGIBLE) Tenant
-------------------------
/s/ Xxxxxxxx X. Xxxx By: /s/ (ILLEGIBLE)
------------------------- ----------------------------
Escrow Agent's Acceptance
The undersigned, the Escrow Agent, under this Agreement hereby agrees
to serve as Escrow Agent pursuant to the terms and provisions of the foregoing
Agreement.
Dated:___________________, 19__
XXXXXXX BANK OF FLORIDA,
Escrow Agent
By
-----------------------------
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GUARANTY
STATE OF FLORIDA
COUNTY OF PALM BEACH
------------------
WHEREAS, VIA XXXXXX ASSOCIATES, a Florida general partnership, as
Landlord, and IVY MANAGEMENT, INC., a Massachusetts corporation, as Tenant, have
executed a lease dated the 31st day of January, 1992 with respect to certain
Leased Premises in VIA XXXXXX FINANCIAL PLAZA located at Suite 201, 000 X.
Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 (this Guaranty Agreement being
attached to a copy of said lease which is executed contemporaneously herewith,
said lease being referred to hereinafter as the "Lease"); and
WHEREAS, MACKENZIE INVESTMENT MANAGEMENT INC., a Delaware corporation
(hereinafter "Mackenzie") and the Tenant have requested Landlord to enter into,
execute and deliver said Lease on the condition that Mackenzie execute this
Agreement as Guarantor and it is acknowledged that Landlord would not enter into
said Lease without the execution of this Guaranty; and
WHEREAS, the Mackenzie has agreed to execute this Guaranty in order to
induce the Landlord to enter into, execute and deliver the aforesaid Lease;
NOW THEREFORE, in consideration of the execution and delivery of the
aforesaid Lease by the Landlord, and for other valuable consideration, receipt
of which is. hereby acknowledged by the Guarantors, it is agreed as follows:
1. Mackenzie does hereby guarantee to the Landlord and to any mortgagee
holding a mortgage upon the interest of Landlord in the Leased Premises, the due
and punctual payment of all rent. payable under said Lease, and each and every
installment thereof, as well as the full and prompt and complete performance by
the Tenant of all and singular covenants, conditions and provisions contained in
said Lease on the part of the Tenant therein to be kept, observed and performed,
for the full term of said Lease and any EXTENSION thereof, AS PERMITTED BY THE
LEASE, with no less force and effect than if Mackenzie was named as the Tenant
in said Lease, and Mackenzie will forthwith on demand pay all amounts at any
time in arrears, and will make good any and all defaults of Tenant occurring
under said Lease.
2. This Guaranty shall be absolute, continuing and unlimited, and the
Landlord shall not be required to take any proceedings against the Tenant, or
give any notice to Mackenzie before the Landlord has the right to demand payment
or performance by Mackenzie. This Guaranty and the liability of Mackenzie
hereunder shall in no way be impaired or affected by any assignment which may be
made of said Lease, or any subletting thereunder, or by any extension(s) of the
time for payment of any rental or any other sums provided to be paid by Tenant,
or by any forbearance or delay in enforcing any of the terms, conditions,
covenants or provisions of said Lease or any amendment, modification or revision
of said Lease. Mackenzie consents and agrees (without affecting this Guaranty or
the liability of Mackenzie hereunder) that the Landlord may, without notice to
or consent of Mackenzie, and upon such terms as the Landlord may deem advisable,
and with or without consideration: (i) extend by renewal or otherwise as often
as the Landlord may wish the time of payment of any indebtedness owing by the
Tenant to the Landlord; or (ii) include additional space within the Tenant's
Leased Premises; or (iii) modify, amend, extend the period of duration, or
extend the scope of the Tenant's obligations; or (iv) settle or compromise any
claim of the Landlord against the Tenant or against any other person, firm or
corporation claiming by, through or under the Tenant; or (v) release in whole or
in
-1-
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part from time to time any person or entity liable for any obligation or
indebtedness of the Tenant to the Landlord and in such event, any such release
shall not affect the liability of Mackenzie for any and all obligations of the
Tenant to the Landlord. Mackenzie hereby ratifies and confirms any such
extensions, renewals, releases, surrenders, exchanges, modifications,
settlements, or compromises, and all such actions which may occur from time to
time shall be binding upon Mackenzie. Mackenzie hereby expressly waives all
defenses, counterclaims or offsets which Mackenzie might have by reason thereof.
Mackenzie further hereby waives any right of subrogation in or under the Lease
or any other document evidencing the Lease or in any way relating to any
obligation of the Tenant to the Landlord which is or may be covered by this
Guaranty, or in the right, title and interest of the Landlord in and to any
collateral or security held by the Landlord or relating to the Landlord's
interest in the Lease. All and any such rights of subrogation and participation
being collectively hereby expressly waived and released by Mackenzie.
3. No action or proceeding brought or instituted under this Guaranty
against Mackenzie, and no recovery had in pursuance thereof shall be any bar or
defense to any further action or proceeding which may be brought under this
Guaranty by reason of any further default or defaults of Tenant.
4. The liability of Mackenzie shall not be deemed to be waived,
released, discharged, impaired or affected by reason of the release or discharge
of the Tenant in any creditors, receivership, bankruptcy (including Chapter X or
Chapter XI bankruptcy proceedings or other reorganization proceedings under the
Bankruptcy Act) or other proceedings, or the rejection or disaffirmance of the
Lease in any proceedings.
5. There shall be no modification of the provisions of this Guaranty
unless the same be in writing and signed by Mackenzie and the Landlord.
Mackenzie also absolutely and unconditionally guarantee the full and timely
performance of all duties, obligations and payments whatsoever of the Tenant to
the Landlord, whether now existing or hereinafter arising, and agrees that in
the event the Tenant fails to fully and timely perform any of said duties,
obligations or payments to fully and timely perform same.
6. All of the terms, agreements and conditions of this Guaranty shall
be joint and several, and shall extend to and be binding upon Mackenzie, its
successors and administrators and shall inure to the benefit of the Landlord,
its successors, and assigns, and to any future owner of the fee of the premises
referred to in the Lease, and to any mortgage on the fee interest of the
Landlord in the Leased Premises. This Guaranty and the obligations and duties of
Mackenzie under this Guaranty shall survive the expiration or termination of the
Lease.
7. In the event Landlord employs the services of an attorney to enforce
the provisions of this Guaranty, Mackenzie agrees to pay all costs, charges and
expenses of enforcement or collection to this Guaranty, including but not
limited to attorneys' fees if this Guaranty is placed in the hands of an
attorney for enforcement or collection whether or not a complaint is filed,
including such attorneys' fees incurred prior to the institution of litigation,
or in litigation, trial and appellate review, in arbitration, bankruptcy or
other administrative or judicial proceedings.
8. MACKENZIE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
(INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS AND THIRD-PARTY CLAIMS)
ARISING IN CONNECTION WITH EACH OF THE PARAGRAPHS OF THIS GUARANTY, THE
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LEASE AND THE TRANSACTIONS CONTEMPLATED THEREIN, AND ALL AND ANY COMBINATIONS OF
THE FOREGOING.
9. This Guaranty supersedes in all respects all prior and
contemporaneous oral and written negotiations, understandings and agreements
between the parties with respect to the subject matter hereof. All of said prior
and contemporaneous negotiations, understandings and agreements are merged
herein and superseded hereby and this Guaranty sets forth the entire
understanding between the parties.
10. If any term of this Guaranty is illegal or unenforceable at law or
in equity, the validity, legality, and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. Any illegal or unenforceable term shall be deemed to be void and of no
force and effect only to the minimum extent necessary to bring such term within
the provisions of any applicable law or laws and such term, as so modified, and
the balance of this Guaranty shall then be fully enforceable. By execution
hereof, Mackenzie acknowledges and agrees that a default or breach by Tenant of
the Lease to which this Guaranty is appended shall be and constitutes a default
(event of default) under the terms of that certain lease between Mackenzie and
Landlord dated May 10, 1989 (as amended) demising Suite 300, 700 S. Federal
highway, Boca Raton, Florida.
11. This Guaranty is delivered and made in, and shall be construed in
accordance with and governed by, the laws of the State of Florida, and is
binding upon Mackenzie and the legal representatives and successors of
Mackenzie, and shall inure to the benefit of the Landlord, its successors and
assigns.
IN WITNESS WHEREOF, Mackenzie has hereunto executed this Guaranty on
the day of 31st day of January, 1991.
MACKENZIE INVESTMENT MANAGEMENT
INC., a Delaware corporation
By: /s/ (ILLEGIBLE)
--------------------------------
(Corporate Seal)
[ATTACH CORPORATE RESOLUTION]
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----------
VIA XXXXXX
----------
February 20, 1992
C. Xxxxxxx Xxxxxx
Ivy Management, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
RE: IVY LEASE AT VIA XXXXXX
MEMORANDUM OF LEASE & NOTICE OF COMMENCEMENT
Dear Xxxx:
Enclosed are the following documents:
1. Memorandum of Lease; and
2. Notice of Commencement.
It is important that these documents be executed and recorded in connection
with the construction of the 796 Suite.
Please have the documents reviewed, then execute them and return them to
me. We will take care of the recording.
If you have any questions, please do not hesitate to contact me at
000-0000.
Thank you.
Sincerely,
VIA XXXXXX FINANCIAL PLAZA
/s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx
JMW\dm
Enclosures
82
----------
VIA XXXXXX
----------
February 20, 1992
C.Xxxxxxx Xxxxxx
Ivy Management, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
RE: IVY LEASE AT VIA XXXXXX
MEMORANDUM OF LEASE & NOTICE OF COMMENCEMENT
Dear Xxxx:
Enclosed are the following documents:
1. Memorandum of Lease; and
2. Notice of Commencement.
It is important that these documents be executed and recorded in
connection with the construction of the 798 Suite.
Please have the documents reviewed, then execute them and return them to
me. We will take care of the recording.
If you have any questions, please do not hesitate to contact me at
000-0000.
Thank you.
Sincerely,
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
JMW\dm
Enclosures
83
MEMORANDUM OF LEASE
-------------------
(SHORT FORM)
THIS MEMORANDUM OF LEASE, made as of the 28th day of February, 1992, by
and between VIA XXXXXX ASSOCIATES, a Florida general partnership, herein called
the "Landlord', and IVY MANAGEMENT, INC., a Massachusetts corporation, herein
called the "Tenant".
W I T N E S S E T H T H A T
1. Landlord and Tenant have entered into a Lease of the following
described real property, situated in Palm Beach County, Florida, to-wit:
SEE EXHIBIT "A"
ATTACHED HERETO AND MADE A PART HEREOF
This Memorandum is intended to give all persons notice of the Lease
specifically including the notices expressly set forth in this Memorandum.
2. TENANT IS PRECLUDED BY THE TERMS OF SAID LEASE FROM CREATING OR
ALLOWING TO BE CREATED AGAINST LANDLORD 'S TITLE TO OR INTEREST IN THE DEMISED
PROPERTY, ANY MECHANIC'S OR MATERIALMAN'S LIENS, AND ALL PERSONS CLAIMING BY,
THROUGH, UNDER OR AGAINST TENANT, ARE HEREBY NOTIFIED THAT TENANT HAS NO POWER
OR AUTHORITY TO SUBJECT THE TITLE OR INTEREST OF LANDLORD, AS FEE OWNER OF THE
DEMISED PROPERTY, TO ANY CLAIM FOR ANY SUCH LIEN. All persons dealing with
TENANT and claiming by, through, under or against TENANT shall look entirely to
TENANT for the payment of any and all charges incurred in improving the demised
property at any time during the term of the Lease.
3. The term of the Lease commences on May 1, 1992 (or earlier as
provided for in the Lease) and terminates on September 30, 2001 (subject to the
terms of a cancellation provision as provided for in the Lease) and two (2)
consecutive five (5) year renewal options. As of the date of termination of the
Lease, this Memorandum and the notices provided hereunder shall cease and be
deemed null and void. If requested by Landlord, Tenant agrees upon termination
of the Lease to execute a cancellation and termination of this Memorandum.
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84
IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of
Lease to be executed as required by law, on the day and year first above
written.
VIA XXXXXX ASSOCIATES, a
Florida general partnership,
LANDLORD
BY: SVMP, LTD., a Florida
limited partnership,
General Partner of Via
Xxxxxx Associates
BY: SVMP, INC., a Florida
Signed, sealed and delivered corporation, General
in the presence of: Partner of SVMP, LTD.
By:
--------------------
Xxxx Xxxxxx, President
---------------------------
(Corporate Seal)
---------------------------
As to Landlord
IVY MANAGEMENT, INC.
Signed, sealed and delivered a Massachusetts corporation
in the presence of: Tenant
/s/ Xxxxxxxx X. Xxxx By: /s/ C. Xxxxxxx Xxxxxx
---------------------------- -----------------------------
/s/ (ILLEGIBLE) C. Xxxxxxx Xxxxxx
---------------------------- Vice President-Finance and
As to Tenant Administration
(Corporate Seal)
00
XXXXX XX XXXXXXX
XXXXXX XX XXXX XXXXX
The foregoing instrument was acknowledged before me this ______ day of
______________, l9__, by XXXX XXXXXX, President of SVMP, INC., a Florida
corporation, General Partner of SVMP, LTD., a Florida limited partnership,
General Partner of VIA XXXXXX ASSOCIATES, a Florida general partnership, on
behalf of VIA XXXXXX ASSOCIATES, a Florida general partnership who is personally
known to me and who did not take an oath.
--------------------------------
My Commission Expires: Notary Public
--------------------------------
Printed Name of Notary
Notary Commission No.
-----------------
STATE OF FLORIDA
----------
COUNTY OF PALM BEACH
-----------
The foregoing instrument was acknowledged before me this 5th day of
MARCH, l992 by C. Xxxxxxx Xxxxxx, Vice President-Finance and Administration of
IVY MANAGEMENT, INC., a Massachusetts corporation, on behalf of said
corporation, who has produced a drivers license as identification and who did
not take an oath.
/s/ Xxxxxxxx X. Xxxx
-------------------------
Notary Public
My Commission Expires: 2/6/93
/s/ Xxxxxxxx X. Xxxx
---------------------------
Printed Name of Notary
Notary Commission No.
-----------
This instrument prepared by:
Xxxxx X. Xxxxxxx
Osborne, Hankins, MacLaren & Redgrave
X.X. Xxxxxx 00
Xxxx Xxxxx, Xxxxxxx 00000
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MEMORANDUM OF LEASE
EXHIBIT "A"
Tenant's leasehold interest in and to Suite 201 at 000 X. Xxxxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxxxx, located on the following described property:
A portion of Blocks 22, 33, 25A, 26, "DE XXXX ROAD" "S.E. 0xx Xxxxxx", and. X.X.
0xx Xxxxxx as shown on the plat of Spanish River Land Company's Plat "A", as
recorded in Plat Book 16, Pages 27 through 30, inclusive of the Public Records
of Palm Beach County, Florida and a portion of Xxx 00, Xxxxx 00 xx xxx Xxxx xx
Xxxxxx Development Corporation Plat 1, as recorded in Plat Book 3, Page 37 of
the Public Records of Palm Beach County, Florida, being more particularly
described as follows:
Commencing at the southwest corner of said Block 25A; thence South along the
east right-of-way line of that 80.00 foot right-of-way for Federal Highway, as
shown on said Plat, a distance of 5.00 feet; thence east a distance of 28.00
feet to the Point of Beginning; thence continuing east, a distance of 142.00
feet; thence north, a distance of 190.00 feet; thence east, a distance of 18.00
feet; thence north, a distance of 72.45 feet to a point of intersection with the
southerly boundary line of the plat "Boca Raton Hotel and Club", as recorded in
Plat Book 53, Page 129 of the Public Records of Palm Beach County, Florida;
thence northwesterly along said southerly boundary line along the arc of a curve
to the right whose radius point bears N. 40 (degrees) 43'32" E. having a radius
of 375.00 feet, a central angle of l5 (degrees) 50'09", an arc distance of
103.64 feet to a point; thence west, a distance of 91.73 feet; thence south, a
distance of 340.00 feet to the Point of Beginning; said lands situate in the
City of Boca Raton, Palm Beach County, Florida.
87
Permit No. 920232 Tax Folio No. 06-43-47-28-03-020-0010
NOTICE OF COMMENCEMENT
THE UNDERSIGNED hereby gives notice that improvement will be made to
certain real property, and in accordance with Chapter 713, Florida Statutes, the
following information is provided in this Notice of Commencement.
1. Description of property:
Legal Description:
See Exhibit A attached hereto and made a part hereof.
Street Address (if available):
000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
2. General description of improvement:
Interior office buildup of Tenant's leasehold interest in
Suite 201 of 000 X. Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx
3. Owner information:
a. Name and address
of Tenant: Ivy Management, Inc.
000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
b. Interest in property: Tenant's leasehold interest
c. Name and address of fee simple title holder (if other than Owner):
Via Xxxxxx Associates
X.X. Xxxxxx 00
Xxxx Xxxxx Xxxxxxx 00000
4. Contractor: Coordinated Building Systems, Inc.
X.X. Xxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
5. Surety: N/A
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88
6. Lender: (name and address) N/A
7. Persons within the State of Florida designated by Owner upon whom
notices or other documents may be served as provided by Section
713.13(l)(a)7., Florida Statutes: (name and address) C. Xxxxxxx Xxxxxx,
Ivy Management, Inc., Suite 300, 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000.
8. In addition to himself, Owner designates Xxxxx X. Xxxxxxx, of Osborne,
Hankins, MacLaren & Redgrave, P. 0. Drawer 40, Xxxx Xxxxx, Xxxxxxx
00000 to receive a copy of Liner's Notice as provided in Section
713.13(l)(b), Florida Statutes.
9. Expiration date of notice of commencement: July l, 1992
IVY MANAGEMENT, INC.,
a Massachusetts corporation,
Owner
By: /s/ C. Xxxxxxx Xxxxxx
-----------------------------
C. XXXXXXX XXXXXX,
Vice President-Finance and
Administration
(Corporate Seal)
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 5TH day of
March ,1992, by C. Xxxxxxx Xxxxxx, Vice President-Finance and Administration of
IVY MANAGEMENT, INC., a Massachusetts corporation, on behalf of said
corporation, who has produced a drivers license as identification and who did
not take an oath.
My Commission Expires: 2/6/93 /s/ Xxxxxxxx X. Xxxx
-----------------------------
Notary Public
/s/ Xxxxxxxx X. Xxxx
-----------------------------
Printed Name of Notary
Notary Commission No._____________
-2-
89
NOTICE OF COMMENCEMENT
EXHIBIT "A"
Tenant's leasehold interest in and to Suite 201 at 000 X. Xxxxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxxxx, located on the following described property:
A portion of Blocks 22, 33, 25A, 26, "DE XXXX ROAD", "S. E. 0xx Xxxxxx", xxx X.
X. 0xx Xxxxxx as shown on the plat of Spanish River Land Company's Plat "A", as
recorded in Plat Book 16, Pages 27 through 30, inclusive of the Public Records
of Palm Beach County, Florida and a portion of Xxx 00, Xxxxx 00 xx xxx Xxxx xx
Xxxxxx Development Corporation Plat 1, as recorded in Plat Book 3, Page 37 of
the Public Records of Palm Beach County, Florida, being more particularly
described as follows:
Commencing at the southwest corner of said Block 25A; thence South along the
east right-of-way line of that 80.00 foot right-of-way for Federal Highway, as
shown on said Plat, a distance of 5.00 feet; thence east a distance of 28.00
feet to the Point of Beginning; thence continuing east, a distance of 142.00
feet; thence north, a distance of 190.00 feet; thence east, a distance of 18.00
feet; thence north, a distance of 72.45 feet to a point of intersection with the
southerly boundary line of the plat "Boca Raton Hotel and Club", as recorded in
Plat Book 53, Page 129 of the Public Records of Palm Beach County, Florida;
thence northwesterly along said southerly boundary line along the arc of a curve
to the right whose radius point bears N. 40 (degrees) 43'32" E. having a radius
of 375.00 feet, a central angle of l5 (degrees) 50'09", an arc distance of
103.64 feet to a point; thence west, a distance of 91.73 feet; thence south, a
distance of 340.00 feet to the Point of Beginning; said lands situate in the
City of Boca Raton, Palm Beach County, Florida.
90
March 18, 1992
C.Xxxxxxx Xxxxxx
Ivy Management, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
RE: IVY LEASE -- 000 XXXXX XXXXXXX XXXXXXX, XXXXX 000
Dear Xxxx:
Enclosed is an executed original of the Ivy Lease for Xxxxx 000 xx 000 Xxxxx
Xxxxxxx Xxxxxxx.
The only item still outstanding in connection with the Lease is the Mackenzie
corporate resolution for the Guaranty. When you have a moment please let me know
when you think the resolution will be available.
Thank you.
Sincerely,
VIA XXXXXX FINANCIAL PLAZA
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
Property Manager
JMW/dm
cc: Xxx X. Xxxxxxx
Xxxx Xxxxxx
