Exhibit 10
000 XXXXX XXXXX XXXXXX
STANDARD OFFICE LEASE
INDEX TO
000 XXXXX XXXXX XXXXXX STANDARD OFFICE LEASE
Page
1. PREMISES; COMMON AREAS: 3
_______________________
2. LEASE TERM; LEASE DATE: 3
_______________________
3. RENT: 4
_____
4. SECURITY DEPOSIT: 8
_________________
5. USE: 8
____
6. DELAY OF POSSESSION: 8
____________________
7. ACCEPTANCE OF PREMISES; LANDLORD'S WORK: 9
________________________________________
8. INTENTIONALLY DELETED: 9
______________________
9. BUILDING SERVICES: 9
__________________
10. SECURITY: 11
_________
11. REPAIRS AND MAINTENANCE: 12
________________________
12. TENANT'S ALTERATIONS: 13
_____________________
13. LANDLORD'S ADDITIONS AND ALTERATIONS: 13
_____________________________________
14. ASSIGNMENT AND SUBLETTING: 14
__________________________
15. TENANT'S INSURANCE COVERAGE: 14
____________________________
16. LANDLORD'S INSURANCE COVERAGE: 15
______________________________
17. SUBROGATION: 15
____________
18. DAMAGE OR DESTRUCTION BY CASUALTY: 16
__________________________________
19. CONDEMNATION AND EMINENT DOMAIN: 17
________________________________
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION: 17
____________________________________________________
21. RELOCATION OF TENANT: 18
_____________________
22. COMPLIANCE WITH LAWS: 18
_____________________
23. RIGHT OF ENTRY: 19
_______________
24. DEFAULT: 19
________
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT: 20
_________________________________________
26. LANDLORD'S DEFAULT: 21
___________________
27. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT: 22
_________________________________________________
28. LIENS: 22
______
29. NOTICES: 22
________
30. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION: 23
______________________________________________
31. ATTORNMENT AND MORTGAGEE'S REQUEST: 23
___________________________________
32. TRANSFER BY LANDLORD: 24
_____________________
33. SURRENDER OF PREMISES; HOLDING OVER: 24
____________________________________
34. NO WAIVER; CUMULATIVE REMEDIES: 24
_______________________________
35. WAIVER OF RIGHT TO JURY TRIAL: 25
______________________________
36. CONSENTS AND APPROVALS: 25
_______________________
37. RULES AND REGULATIONS: 25
______________________
38. SIGNS: 25
______
39. LIMITED AUTHORITY OF LEASING AGENT: 26
___________________________________
40. SUCCESSORS AND ASSIGNS: 26
_______________________
41. QUIET ENJOYMENT: 26
________________
42. ENTIRE AGREEMENT: 26
_________________
43. HAZARDOUS SUBSTANCES: 26
_____________________
44. MISCELLANEOUS: 28
______________
45. RADON GAS NOTIFICATION. 30
_______________________
EXHIBITS
A. Legal Description/Floor Plan
B. Work Letter
C. Rules and Regulations
D. Form Term Commencement and Expiration Agreement
E. Form Subordination, Non-Disturbance and Attornment Agreement
ADDENDA
A. Special Provisions
BASIC LEASE INFORMATION
000 XXXXX XXXXX XXXXXX
STANDARD OFFICE LEASE
Date: February __, 2004
Landlord: ABS XXXXX STREET, LLC, a Florida limited
liability company
Tenant: THE JACKSONVILLE BANK, a Florida banking
corporation
Section 1 Premises: Suites 120 and 1000, 000 Xxxxx Xxxxx
Xxxx 0 Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000
Section 1 Net Rentable Area of Premises:
Page 1 3,335 rentable square feet as to Suite 120
8,665 rentable square feet as to Suite 1000
Section 2 Lease Commencement Date:
Page 2 September 1, 2004
Section 2 Expiration Date:
Page 2 August 31, 2011
Section 2 Rent Commencement Date:
Page 2 September 1, 2004
Section 3 Base Rent: Base Rent during the Primary lease
Page 3 term shall be based upon the stipulated
Rentable Area set forth above per year, and
payable monthly in advance, without deduction
or offset, on the first day of each calendar
month together with applicable sales tax and
applicable local taxes, as follows:
Lease Year* Rental Rate** Annual Rent*** Monthly Rent***
___________ _____________ ______________ _______________
1. $20.00 $240,000.00 $20,000.00
2. $20.50 $246,000.00 $20,500.00
3. $21.00 $252,000.00 $21,000.00
4. $21.50 $258,000.00 $21,500.00
5. $22.00 $264,000.00 $22,000.00
6. $22.50 $270,000.00 $22,500.00
7. $23.00 $276,000.00 $23,000.00
*Lease year is from September 1 - August 31 of
the following year.
**Per rentable square foot
***Does not include applicable sales taxes due
with monthly rent.
Section 3 Tenant's Share:
Page 11 8.79%
Section 3 Advance Rent:
Page 12 None
Section 4 Security Deposit:
Page 14 Waived
Section 5 Use of Premises: As a Banking Facility as to
Page 15 Suite 120, Executive Banking offices as to
Suite 1000
Xxxxxx's Address for Notices Prior to Lease
Commencement Date:
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
XX 00000
Xxxxxx's Address for Notices After Lease
Commencement Date:
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxx 00000
Landlord's Address for Notices:
ABS Xxxxx Street, LLC
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
With copies to:
Xxxxx X. Xxxxxxx, Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxx & XxXxxxxxx, P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Section 44 Tenant's Real Estate Broker or Salesman:
Page 52 None
The provisions of this Lease identified above are for
informational purposes only. In the event of any conflict
between the Basic Lease Information and the Lease, the Lease
shall control.
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000 XXXXX XXXXX XXXXXX
STANDARD OFFICE LEASE
THIS LEASE ("Lease") is made as of the _____ day of March,
2004, by and between ABS Xxxxx Street, LLC., a Florida limited
liability company ("Landlord"), and The Jacksonville Bank, a
Florida banking corporation ("Tenant"), having an office at 00
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
____________________
1. PREMISES; COMMON AREAS:
_______________________
Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the premises known as Suites 120 and 1000 as shown
on the floor plan attached hereto as Exhibit "A" and by this
reference incorporated herein ("Premises") which are located in
the 000 Xxxxx Xxxxxx Building located at 000 X. Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Building").
The term "Net Rentable Area" shall mean "Rentable Area" as
defined in the BOMA Method for Measuring Floor Area in Office
Buildings published by the American National Standard Institute,
Inc., ANSI Z65.1-1993. Where the term "Net Rentable Square Feet
is used in this Lease, calculation of Net Rentable Square Feet
shall be made as set forth in the BOMA Method for Measuring Floor
Area as set forth above. The parties hereby irrevocably agree
that, notwithstanding the actual area of the Premises, for the
purposes of this Lease, the Premises shall be deemed to contain
12,000 square feet of Net Rentable Area, regardless of whether
there are variations in the actual measured area of the Premises,
as the Premises exist from time to time. The amount of Base Rent
and Additional Rent shall be adjusted proportionately in the
event of a future adjustment in the number of square feet of Net
Rentable Area in the Premises due to an amendment to this Lease
or to any other physical addition to or deletion from the
Premises unless otherwise set forth in an amendment to this
Lease.
As used herein, the term "Common Areas" shall refer to those
areas devoted to public corridors, elevators, elevator foyers,
lobbies, janitor closets, rest rooms, mechanical rooms, Building
storage rooms, Building engineering offices, mail rooms, Building
repair shops, Building receiving areas, and other similar
facilities or spaces used for the common use of, or providing
service to, two or more tenants. Subject to the terms,
provisions, conditions and covenants set forth in this Lease and
to Rules and Regulations promulgated by Landlord from time to
time, Tenant has the right, in common with Landlord, all other
tenants in the Building and invitees thereof and visitors
thereto, to the nonexclusive use of or service by the Common
Areas for the purposes for which they are designed and intended,
provided however that Tenant shall not have any right of access
to or use of Common Areas not meant for public use, not designed
for Tenant's use or reserved for certain tenants to the exclusion
of other tenants. The Common Areas serving the Building will at
all times be subject to Landlord's exclusive control and
management in accordance with the terms and provisions of this
Lease, and Landlord shall have the absolute right to reconfigure
the Common Areas, change portions of the Common Areas into leased
space for one or more tenants, and exclude one or more tenants
from use or enjoyment of portions of the Common Areas so long as
such acts do not materially interfere with Tenant's use of the
Premises and the operation of Tenant's business therein.
2. LEASE TERM; LEASE DATE:
_______________________
The lease term ("Lease Term") is seven (7) years, commencing
on September 1, 2004 ("Lease Commencement Date") and ending on
August 31, 2011 ("Expiration Date"). Tenant's obligation to pay
Rent (as hereafter defined), will commence on September 1, 2004
("Rent Commencement Date"). Notwithstanding the foregoing, the
parties agree and acknowledge that the aforesaid Lease
Commencement Date and/or the Rent Commencement Date are subject
to change pursuant to the work letter attached hereto as
Exhibit "B" and by this reference incorporated herein ("Work
Letter"), including, but not
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limited to, Sections 6 and/or 7 thereof. In the event that the
Commencement Date and/or the Rent Commencement Date are changed
pursuant to the Work Letter, all provisions, dates and time periods
contained in this Lease and the attachments to this Lease shall be
conformed, extended and/or reduced as necessary to carry out the
intent of this Lease as if the changed Commencement Date or Rent
Commencement Date were originally set forth herein. The parties
agree to execute the Term Commencement and Expiration Agreement in
the form of Exhibit "D" attached hereto within thirty (30) days
after the Rent Commencement Date. Tenant's obligation to pay
Overhead Rent and Additional Rent (as such terms are hereafter
defined) shall commence on the Lease Commencement Date. Base
Rent, Overhead Rent and Additional Rent are sometimes collectively
referred to herein as "Rent."
3. RENT:
_____
A. Base Rent.
Tenant will pay as the base rent for the Premises for the
Lease Term ("Base Rent") the amounts set forth below, which are
per square foot of Net Rentable Area per annum (based upon the
stipulated Net Rentable Area set forth above), payable without
demand, set off or deduction, in advance, on or before the first
day of each month, in equal monthly installments, plus applicable
sales and other such taxes, tax on rentals and any other similar
charges now existing or hereafter imposed based upon the
privilege of leasing the Premises or based upon the amount of
Rent collected therefor, all such amounts being included within
the definition of Base Rent.
Lease Year* Rental Rate** Annual Rent*** Monthly Rent***
___________ _____________ ______________ _______________
1. $20.00 $240,000.00 $20,000.00
2. $20.50 $246,000.00 $20,500.00
3. $21.00 $252,000.00 $21,000.00
4. $21.50 $258,000.00 $21,500.00
5. $22.00 $264,000.00 $22,000.00
6. $22.50 $270,000.00 $22,500.00
7. $23.00 $276,000.00 $23,000.00
*Lease year is from September 1 - August 31 of
the following year.
**Per rentable square foot
***Does not include applicable sales taxes due
with monthly rent.
Notwithstanding the foregoing, payment for the first month of
Base Rent due hereunder shall be paid in advance by Xxxxxx on the
earliest date on which this Lease has been signed by Landlord and
Tenant. Each twelve month period commencing on the Commencement
Date (or commencing on the first day of the first month following
the Commencement Date if the Commencement Date is other than the
first day of the month, in which event the First Lease Year shall
include the period between the Commencement Date and the first
day of the first month thereafter) or anniversary thereof is
hereof referred to as a "Lease Year".
B. Overhead Rent.
Landlord shall, each calendar year, pay the base operating
amount ("Base Operating Amount"), as hereafter defined. Tenant
shall pay to Landlord, as overhead rent ("Overhead Rent"),
prorated for that part of the Lease Term within the applicable
calendar year, Tenant's share ("Tenant's Share"), as hereafter
defined, of the total amount of (i) the annual operating expenses
("Operating Expenses"), as hereafter defined, and (ii) the annual
taxes ("Taxes"), as hereafter defined, in excess of the Base
Operating Amount. For all calendar years during the Lease Term,
Landlord shall, in advance, reasonably estimate for each such
upcoming calendar year the total amount of the Overhead Rent.
One-twelfth (1/12) of the estimated Overhead Rent shall be
payable monthly in advance, along with the
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monthly payment of the Base Rent. Such estimate shall be made by
Landlord on or before January 1st of each calendar year. On or
before March 31st or as close thereto as is reasonably practicable
thereafter following a year for which Overhead Rent was payable
hereunder, Landlord shall provide Tenant with written notice of
the amount of the actual Overhead Rent for the previous calendar
Year, and a reasonable breakdown of the items included therein
(the "Reconciliation Statement"), together with an invoice for any
underpayment of Overhead Rent (to be paid by Tenant within thirty
(30) days following receipt of such invoice, or to be included
with the next monthly payment of Rent). Any overpayment of
Overhead Rent shall be immediately credited against Xxxxxx's
obligation to pay Rent, or, if by reason of the termination of
the Lease Term, no such future obligation exists, refunded to
Tenant. When calculating Taxes, such calculation shall, with
respect to ad valorem taxes, be calculated with reference to the
gross amount set forth in the official tax bill issued by the
appropriate taxing authorities, irrespective of the amount
actually paid by Landlord for such year in light of a protest or
dispute over the amount of such Taxes. In the event the Taxes
for any year are in fact contested by Landlord, however, the
amount ultimately payable by Tenant for that year shall be based
upon the amount found to be payable in a final determination,
whether such final determination is in the form of a
pronouncement from the appropriate tribunal or a settlement and
all costs and expenses (including legal fees) of the contest
shall be included as a portion of the Taxes so determined unless
otherwise charged as Operating Expenses when incurred. If the
amount ultimately due and payable by Landlord is less than the
gross amount set forth in the tax bill upon which Xxxxxxxx
received Overhead Rent from Tenant, Landlord shall immediately
credit against Tenant's obligation to pay Rent, or if by reason
of the termination of the Lease Term, no such future obligation
exists, refund to Tenant the Tenant's Share of the difference
between the gross amount upon which Xxxxxx's Share of Taxes were
originally based and the sum of all costs and expenses (including
legal fees) incurred by Landlord in contesting Taxes and the
final amount of Taxes determined to be due.
For a period of ninety (90) days after receipt of the
Reconciliation Statement, Tenant shall have the right, subject to
the provisions of this paragraph and paragraph 3.D.(6), upon at
least fifteen (15) days' advance notice, to visit Landlord's
office or other location in the Building selected by Landlord
during Business Hours, as hereafter defined, to inspect
Landlord's books and records concerning the Overhead Rent for
only the period for which Overhead Rent is charged in the
Reconciliation Statement and for no other period. If Tenant does
not (i) provide such notice within the said ninety (90) day
period, and (ii) complete its inspection and provide Landlord
with a copy of its final audit and report as required by
paragraph 3.D.(6) within thirty days after such notice, Landlord
and Tenant shall thereafter be irrevocably bound to accept as
true and correct the matters, calculations, assumptions and all
other determinations set forth in the Reconciliation Statement,
which shall be final and binding on both Landlord and Tenant.
C. Definition of Material Terms.
(1) The term "Operating Expenses" shall mean (i) any
and all costs of Landlord's ownership, management, operation and
maintenance of the Building, including, without limitation,
wages, salaries, taxes, insurance, licenses, permits benefits and
other payroll burdens of all employees, janitorial, maintenance,
guard and other services, legal and accounting services directly
related to the management and operation of the Building,
management service costs, fees and expenses, Building management
office rent or rental value, power, fuel, water, waste disposal,
landscaping care, garbage removal, window cleaning, system
maintenance, organizational membership dues, costs, contributions
and expenses for organizations reasonably related to the Building
or its location, management or operation, parking area care,
charges for rental equipment or rental of parking spaces for
tenants and invitees thereof in other office buildings and
garages, and any and all other utilities, materials, supplies,
maintenance, repairs, casualty, liability, loss of income, and
other insurance applicable to the Building and Landlord's
personal property and depreciation on personal property, and (ii)
the cost (amortized over such reasonable period as Landlord shall
determine together with interest at the rate of twelve percent
(12%) per annum on the unamortized balance) of any capital
improvements, replacements or
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additions made to the Building by Landlord after the date of this
Lease that reduce other Operating Expenses or are made to the
Building by Landlord after the date of this Lease that are or may
be required under any governmental law or regulation or are or
may be necessary to maintain the Building or its fixtures or
Common Areas in an attractive, safe, or habitable condition;
provided, however, that Operating Expenses shall not include real
property taxes, depreciation on the Building other than
depreciation on carpeting or other floor covering in public
corridors and Common Areas, costs of tenants' improvements, real
estate broker's commissions, interest and capital items other than
those referred to in subsection (ii) above. To the extent that
Landlord expends funds for capital improvements, additions or
replacements, and such capital improvements, additions or
replacements result in a reduction ("Operating Costs Savings")
in Operating Costs, Landlord may add an amount equal to the
Operating Costs Savings for any calendar year to the amount of
Operating Costs and apply such amount toward the amortization of
such capital improvements, additions or replacements in order to
accelerate the complete amortization of such capital improvements,
additions or replacements as allowed above. Landlord shall
maintain accounting books and records in accordance with sound
accounting principles. In determining the amount of Operating
Expenses for any calendar year, (i) if less than ninety-five
percent (95%) of the Building shall have been occupied by tenants
and fully used by them, Operating Expenses shall be increased to
an amount equal to the like operating expenses which would
normally be expected to be incurred had such occupancy been
ninety-five percent (95%) and had such full utilization been made
during the entire period and (ii) if Landlord is not furnishing
particular work or services (the cost of which if performed by
Landlord would constitute an Operating Expense) to a tenant who
has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be
deemed to be increased by an amount equal to the additional
expense which would reasonably have been incurred during such
period by Landlord had Landlord furnished such work or service
to such tenant.
(2) The term "Taxes" shall mean the gross amount of
all impositions, taxes, assessments (special or otherwise), water
and sewer assessments and other governmental liens, fees or
charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and
substitutes therefor, including all taxes whatsoever (except only
those taxes of the following categories: any inheritance,
estate, succession, transfer or gift taxes imposed upon Landlord
or any income taxes specifically payable by Landlord as a
separate tax-paying entity without regard to Landlord's income
source as arising from or out of the Building and/or the land on
which it is located) attributable in any manner to the Building,
the land on which the Building is located or the rents (however
the term may be defined) receivable therefrom, or any part
thereof, or any use thereon, or any facility located therein or
used in conjunction therewith or any charge or other amount
required to be paid to any governmental authority, whether or not
any of the foregoing shall be designated "real estate tax,"
"sales tax," "rental tax," "excise tax," "business tax," "impact
fee" or designated in any other manner.
(3) The term "Base Operating Amount" will be deemed to
be the total amount of Operating Expense (as defined in this
Lease) incurred or paid by Landlord for the calendar year com
mencing January 1, 2005 and ending December 31, 2006. The Base
Operating Amount, (i) shall be communicated to Tenant as soon as
practicable after the end of the 2005 calendar year, and (ii)
shall be final for all purposes, provided however that Tenant
shall have the right to dispute or audit the Base Operating
Amount as if it were a Reconciliation Statement in accordance
with Paragraph 3.D.(6) for a period of ninety (90) days after
receipt thereof.
(4) The term "Tenant's Share" shall mean the following
percentage: Eight and seventy-nine one hundredths percent
(8.79%). Landlord and Xxxxxx acknowledge that Xxxxxx's Share has
been obtained by dividing the Net Rentable Area of the Premises
as set forth in paragraph 1 of this Lease (unless increased by
expansion of the Premises), by the total Net Rentable Area of the
Building, which Landlord and Tenant hereby stipulate for all
purposes is 136,500 Net Rentable Square Feet, and multiplying
such quotient by 100. In the event Tenant's Share is changed
during a calendar year by reason of a change in the Net Rentable
Area of the Premises, Tenant's Share shall thereafter mean the
result
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obtained by dividing the new Net Rentable Area of the Premises by
136,500 Net Rentable Square Feet and multiplying such quotient by
100 and for the purposes of paragraph 3B, Tenant's Share shall be
determined on the basis of the number of days during such calendar
year applicable to each such Tenant's Share.
(5) The term "Rent" shall mean the sum of the Base
Rent, Overhead Rent and Additional Rent. The term "Additional
Rent" is sometimes used herein to refer to any and all other sums
payable by Tenant hereunder, including, but not limited to,
parking charges, late charges, and any taxes or other fees not
included as part of the Base Rent or Overhead Rent. Xxxxxx
agrees to pay Additional Rent upon demand by Xxxxxxxx, and agrees
that Additional Rent is to be treated in the same manner as Base
Rent and Overhead Rent hereunder, both in terms of the lien for
Rent herein provided and in terms of the default provisions
herein contained.
D. Related Provisions.
(1) Notwithstanding the fact that Rent shall be due
and payable as provided in Paragraph 3 hereof, Tenant covenants
and agrees to pay a late charge for any payment of Rent not
received by Landlord on or before five o'clock p.m. on the tenth
(10th) day of the month in which such payment is due and for any
other payment, such as Additional Rent, not received by Landlord
on or before five o'clock p.m. of the date when same is due.
Said late charge shall be computed from the first day of the
month in the case of Rent and from the date when same is due in
the case of Additional Rent. The amount of the late charge shall
be an amount equal to the interest accruing at the rate of
eighteen percent (18%) per annum on the sum(s) outstanding, with
such interest commencing on the dates aforesaid, and ending on
the date of receipt of the sum(s) by Landlord. In the event any
late charge is due to Landlord, Landlord shall advise Tenant in
writing and Tenant shall pay said late charge to Landlord along
with and in addition to the next payment of Rent. Landlord's
acceptance of any Rent, late charge or amount due or portion
thereof shall not be deemed as a waiver (i) of Tenant's
obligation to pay Rent on a timely basis, (ii) of any late charge
or portion thereof not paid, or (iii) of any default hereunder
occasioned by Xxxxxx's failure to pay Rent when due.
(2) All sums due and payable pursuant to the
terms and provisions of this Lease shall be paid by Tenant
without offset, notice, demand or other credit, and shall be
payable only in lawful money of the United States of America
which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment. The Rent and
Additional Rent shall be paid by Tenant at the Building manage
ment office located in the Building or elsewhere as designated by
Landlord in writing to Tenant.
(3) Unless otherwise provided herein, Landlord
shall notify Tenant in writing of any and all adjustments to Base
Rent. All such adjustments to Base Rent must be adjustments
permitted under this Lease.
(4) If Tenant's possession of the Premises
commences on any day other than the first day of the month,
Tenant shall occupy the Premises under the terms of this Lease
and the pro rata portion of the Rent for such month based on the
number of days of actual occupancy by Tenant shall be paid by
Xxxxxx; provided, however, that in such an event the Lease Com
mencement Date, for the purposes of this Lease, shall be deemed
to be the first day of the month immediately following the month
in which possession is given.
(5) Overhead Rent for the final months of this
Lease is due and payable even though it may not be subject to
calculation until subsequent to the Expiration Date of the Lease.
Tenant expressly agrees that Landlord, at Xxxxxxxx's sole
discretion, may retain the Security Deposit, as hereafter
defined, and apply it in full or partial satisfaction of any
Overhead Rent due for the final months of this Lease. If said
Security Deposit is greater than the amount of any such Overhead
Rent and there are no other sums or amounts owed Landlord by
Tenant by reason of any other terms, provisions, covenants or
conditions of this Lease, then Landlord shall refund the balance
of said
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Security Deposit to Tenant as provided herein. Nothing herein
contained shall be construed to relieve Tenant, or imply
that Tenant is relieved of, the liability for or the obligation
to immediately pay any Overhead Rent due for the final months of
this Lease by reason of the provisions of this paragraph, nor
shall Landlord be required to apply said Security Deposit first
to such Overhead Rent if there are any other sums or amounts owed
Landlord by Tenant by reason of any other terms, provisions,
covenants or conditions of this Lease.
(6) Tenant hereby agrees that the Base Rent and
the Overhead Rent from time to time computed by Landlord shall be
final and binding on Tenant for all purposes of this Lease
unless, within thirty (30) days after Landlord provides Tenant
with the Reconciliation Statement, Tenant provides Landlord with
written notice (i) disputing the mathematical accuracy of such
amount (the "Disputed Amount"), which notice, in order to be
valid, shall state with particularity each item in the
Reconciliation Statement or other invoice or notice that is
disputed and the reason that it is disputed, (ii) designate an
attorney or accountant, reasonably acceptable to Landlord, and
appointed by Tenant at its sole cost and expense, to review the
mathematical accuracy of the Disputed Amount with Landlord and/or
its designated representatives, and (iii) confirm that all
matters in the Reconciliation Statement other than the Disputed
Amount shall not be subject to adjustment, and agreeing to pay
all of Landlord's costs and expenses in connection with such
review, including attorneys' fees, accountants' fees and copying
charges at $.25 per page, unless as a result thereof the Disputed
Amount is demonstrated to contain a mathematical error adverse to
Tenant in excess of five percent (5%) of the Disputed Amount.
Landlord hereby agrees, in the event it receives such notice from
Tenant, to cooperate in promptly completing such review and
promptly refunding any excess portion of the Disputed Amount
provided that such excess portion exceeds five percent (5%) of
the Disputed Amount. Tenant shall have no right to audit or
otherwise inspect Landlord's books or records for any period,
including, without limitation, any Base Year, other than the year
for which a Reconciliation Statement is issued and for which
Xxxxxx has given timely notice of a Disputed Amount as required
herein. Tenant agrees that any inspection or audit shall be
carried out at a location in the Building selected by Landlord
during normal Business Hours.
Tenant shall have no right to audit or inspect
Landlord's books or records or to dispute any amount of Rent or
Additional Rent for which Landlord has invoiced Tenant: (i) if
Tenant is in default of this Lease; (ii) if Tenant has assigned
or subleased any portion of the Premises, then only for the
period prior to such assignment; (iii) if Xxxxxx has conducted an
audit of Landlord's books or records within the previous eighteen
months unless such audit disclosed an error adverse to Tenant of
greater than five percent (5%) of any Disputed Amount in such
audit; or (iv) if Tenant has failed to give timely notice as
required in this Lease. No subtenant or assignee of any Tenant
shall have any right to audit, copy or review any of Landlord's
books or records, or to dispute any Overhead Rent or
Reconciliation Statement. Tenant shall provide, as a condition
precedent to Xxxxxxxx's duty to agree to any change in the
Reconciliation Statement, a copy of any audit conducted by Tenant
or any agent of Tenant.
4. SECURITY DEPOSIT:
_________________
The requirement of a Security Deposit has been waived under
this Lease, and no Security Deposit has been made by Tenant.
5. USE:
____
Tenant will use and occupy the Premises solely for the
operation of a banking facility with indoor and outdoor ATM
machines (such indoor ATM to be located solely within the
Premises) and related executive offices. Tenant acknowledges
that its type of business, as above specified, is a material
consideration for Landlord's execution of this Lease. Tenant
shall not change the nature of its business without the approval
of Landlord, which approval may be withheld in the sole
discretion of the Landlord. Tenant will not commit waste upon
the Premises nor suffer or permit the Premises or any part of
them to be used
8
in any manner, or suffer or permit anything to be
done in or brought into or kept in the Premises or the Building,
which would: (i) violate any law or requirement of public
authorities, (ii) cause or risk injury or waste to the Building
or any part thereof, (iii) interfere with the normal operations
of HVAC, plumbing or other mechanical or electrical systems of
the Building or the elevators installed therein, (iv) constitute
a public or private nuisance or interfere with the usual and
customary atmosphere of the Premises or the Building, (v) alter
the appearance of the exterior of the Building unless expressly
permitted by the terms of this Lease or of any portion of the
interior other than the Premises pursuant to the provisions of
this Lease, (vi) increase insurance premiums, or (vii) place any
person or property in or around the Building at risk of injury or
damage. In addition Tenant shall not (i) interfere with or
obstruct the rights of other tenants or occupants of the
Building, (ii) install in the Premises or bring into the Building
any fixtures, equipment, furniture, materials, or other objects
that will overload, damage, or obstruct any utility lines or
heating or air conditioning equipment or systems providing
services to the Building or the Premises, (iii) install in the
Premises or bring into the Building any fixtures, equipment,
furniture, materials, or other objects that will overload the
floors in the Premises or the Building or in any way affect the
structural capacity or design of the Premises or the Building,
(iv) install, remove from or move into or out of the Premises any
furniture, fixtures, equipment, materials, supplies, or other
objects except on such day and at such time as are approved in
advance by Landlord, or (v) operate more than one shift on the
Premises or otherwise operate or work in any manner which results
in one employee, agent, independent contractor, guest, invitee or
principal of Tenant working in relay with others, or occupying
the Premises beyond Business Hours which shall be deemed to be a
shift; provided, however, Landlord acknowledges and agrees that
the nature of Tenant's business use of the Premises may require
one or more employees of Tenant to work in the executive offices
beyond Business Hours and such use of the Premises is permitted
hereunder. Notwithstanding the foregoing, and subject to the
other applicable terms and provisions of this Lease, Tenant may
install an ATM on the exterior of the Premises on Forsyth Street.
6. DELAY OF POSSESSION:
____________________
A. If Landlord is unable to deliver possession of the
Premises by reason of the holding over of any prior tenant or any
other reason not associated with or caused directly or indirectly
by Xxxxxx, a per diem abatement of Rent and to the extent
applicable, Additional Rent, will be allowed to Tenant for so
long a period as possession by Xxxxxx is so delayed. However,
nothing set forth herein will operate to extend the Lease Term
and said abatement will be the full extent of Landlord's
liability to Tenant on account of a delay in delivery of
possession of the Premises.
B. Notwithstanding paragraph 6A above, if Landlord is
unable to deliver possession of the Premises to Tenant within
thirty (30) days after the Lease Commencement Date, by reason of
anything other than direct or indirect fault on the part of
Tenant or any of Tenant's Agents, as hereafter defined, either
Landlord or Tenant will have the right to terminate this Lease
upon written notice delivered to the other party within ten (10)
days after the lapse of said 30-day period. Upon such
termination and Xxxxxxxx's return to Tenant of the Security
Deposit (if required), Landlord and Tenant will each be released
from all further liability under this Lease.
7. ACCEPTANCE OF PREMISES; LANDLORD'S WORK:
________________________________________
Improvements, if any, to be made to the Premises by Tenant
shall be made in accordance with the Work Letter. Improvements,
if any, to be made to the Premises by Landlord are specifically
set forth in the Work Letter. All improvements made to the
Premises, by Tenant will become the property of Landlord at the
expiration or earlier termination of this Lease, or upon default
by Tenant (unless promptly cured within any applicable cure
period) unless, at such time as this Lease is terminated,
Landlord requests that Tenant remove such fixtures and return the
Premises to their condition prior to the improvements required by
this Lease, in which case said fixtures shall be the property of
Tenant. Except as stated above, such property will be deemed the
property of Landlord upon termination or expiration of this
Lease. The taking of possession by Xxxxxx (or any permitted
assignee or subtenant of Tenant) of all or any portion of the
Premises for the conduct of business will be deemed conclusive
evidence that Tenant has found the Premises, and all of its
fixtures and equipment, to be in good and satisfactory condition.
9
Notwithstanding the foregoing, Xxxxxx's ATMs, trade fixtures
purchased at Tenant's expense, and Xxxxxx's safe will remain the
property of Tenant and may be removed by Tenant at the expiration
of the Lease Term provided that Xxxxxx's repairs any damage done
by such removal and restores the Premises to a tenantable
condition.
8. INTENTIONALLY DELETED:
______________________
9. BUILDING SERVICES:
__________________
A. General.
In general, the services set forth below will be
provided by Landlord at a service level set, defined and
regulated by Landlord, which shall be consistent with the service
level for office buildings of similar quality to and in the same
immediate geographic area as the Building. During the Lease
Term, the regular business hours ("Business Hours") of the
Building will be 7:00 a.m. to 6:00 p.m., Monday through Friday,
and on Saturday, 8:00 a.m. to 2:00 p.m., except holidays
generally recognized by state, local and/or federal governments
or during special community events. The Building will be
accessible to Tenant, its subtenants, agents, servants,
employees, contractors, invitees, guests or licensees
(collectively, "Tenant's Agents") at all times during Business
Hours. To the extent that Xxxxxxxx agrees to allow the use of
the Premises or any portion of the Building during other than
Business Hours, Landlord reserves the right to charge Tenant for
the Building Services received or used by Tenant or Tenant's
Agents during times other than Business Hours and for any
increased costs in providing Building services to the Building or
increased costs of operation resulting from Xxxxxx's use or
Tenant's Agents use of the Building or the Premises at other than
Business Hours.
(1) Janitorial Service.
Landlord agrees to provide during the Lease Term
those janitorial services for the Premises customarily provided
in office buildings of similar quality to and in the same
immediate geographic area as the Building. Janitorial service
will be provided after Business Hours at the Building five (5)
days per week, Monday through Thursday and once, at the
Landlord's option, on Friday, Saturday or Sunday. Should Tenant
require additional janitorial services beyond those customarily
provided by Landlord, Tenant may request same in writing from
Landlord and if Landlord agrees to provide such services, Tenant
will be billed for same by Landlord at a reasonable rate to be
determined by Landlord and those costs and expenses when billed
will be Additional Rent due under this Lease.
(2) Electricity.
(a) During the Lease Term, electric power
will be available for the purposes of lighting and general office
equipment use in amounts consistent with the Building standard
electrical systems and general office use during Business Hours.
The Building standard mechanical and electrical systems are
designed to accommodate loads generated by lights and office
equipment such as typewriters, dictating equipment, photocopy
equipment, etc.
(b) Subject to the terms of paragraph 5
hereof, Tenant acknowledges that Xxxxxx's intended use of the
Premises excludes material use of the Premises beyond Business
Hours. Material use shall be deemed to mean the operation of an
additional "shift," either full or part time, or use of the
Premises after Business Hours in any way that may preclude or
interfere with the providing of janitorial services to the Premi
ses. Tenant agrees and covenants with Landlord that Tenant will
not operate more than one shift on the Premises or otherwise
operate or work in any manner which results in one employee,
agent, independent contractor, guest, invitee or principal of
Tenant working in relay with others, which shall be deemed to be
a shift. In the event Tenant's use of the Premises requires more
electrical power than set forth above and Landlord approves such
additional use in writing, whether by intensity of use, load or
type of equipment, Tenant shall be responsible for any wiring or
other expenses necessary to provide such services and shall be
billed for such additional use and such xxxxxxxx will be billed
to Tenant as Additional Rent. Landlord will utilize Xxxxxxxx's
customary method of billing Tenant for
10
excess electrical power consumption. At Landlord's option,
Landlord, at Xxxxxx's expense, may have an engineer estimate
Tenant's usage, and bill Tenant at standard utility rates for
the excess usage, or install a submeter for the purposes of
monitoring Tenant's excess power consumption. Landlord and
Tenant agree that Xxxxxxxx's implementation of the electrical
monitoring and billing procedures set forth herein shall in no
way be construed so as to deem Landlord a private or public
utility company.
(c) Landlord reserves the right, after
Business Hours, to turn off all unnecessary lighting in the
Building and the Premises, provided Tenant is not making use of
such portions of the Premises at such time, to minimize the
energy consumption of the Building in both the Common Areas and
the Premises. For purposes of this sub-paragraph, "unnecessary
lighting" shall mean all lighting except for exit lights and
Common Areas and minimum building lighting as required by law.
Tenant shall make a good faith effort to turn off all lighting
and equipment not required by governmental rule or regulation to
be left on at the close of each business day.
(3) HVAC Services.
Landlord agrees to provide, during Business Hours,
heating, ventilating and air conditioning for the purposes of
comfort control. Landlord and Tenant agree that Xxxxxxxx's HVAC
system is not designed to cool machinery and equipment. If
Tenant requires additional HVAC services for comfort control at
times other than during Business Hours, Landlord will bill Tenant
as Additional Rent for the number of hours used at a rate to be
determined by Landlord. It is projected that this rate, at the
time of execution of this Lease, will be TWENTY-FIVE AND NO/100
DOLLARS ($25.00) per hour, in minimum one hour increments, which
rate includes electrical power expense, wear and tear on the
system and personnel costs and expenses. This rate is intended
to be an estimate only and will be subject to change during the
Lease Term based upon estimated operational costs and expenses,
including wear and tear on the system and its components. The
HVAC air distribution system and control system will remain under
the control of Landlord, who will regulate the systems' setting
and adjustment. At Landlord's option, Landlord may secure HVAC
controls (thermostats) in lockable metal boxes to regulate the
efficiency and use of the system. Xxxxxx agrees that Landlord
will have complete control over the setting and regulation of all
air distribution, vents, vanes and dampers so as to provide
comfortable working conditions. Landlord shall have the absolute
right to comply with all governmental regulations controlling
electricity, building temperatures or temperature settings and
compliance with such regulations shall be deemed to be in
accordance with Landlord's duties under this Lease and shall not
constitute a default.
(4) Water and Sewer.
Landlord agrees to provide municipally supplied
cold water and sewer services to the Common Areas for lavatory
purposes. Should water and sewer capacity be provided directly
to the Premises, the cost of such service shall be billed to
Tenant as Additional Rent.
(5) Elevator Service.
Landlord will provide passenger elevator service
during Business Hours and restricted passenger elevator service
during non-Business Hours. Landlord shall be in sole control of
the freight elevator which shall not be available to Tenant for
Tenant's or Tenant's Agents' use unless scheduled in advance
after written notice. Tenant shall not have access to the
freight elevators on a day to day basis.
B. Interruption of Services.
It is understood and agreed that Xxxxxxxx does not warrant
that any of the services referred to above, or any other services
which Landlord may supply, will be free from defect or
interruption. Tenant acknowledges that any one or more of such
services may be suspended by reason of accident or repairs,
alterations or improvements necessary to be made, or by strikes
or lockouts, or by reason of operation of law, or other causes
beyond the control of Landlord. No such interruption or
discontinuance of service will be deemed
11
an eviction or a disturbance of Xxxxxx's use and possession of
the Premises or any part thereof, or render Landlord liable to
Tenant for damages or abatement of Rent or relieve Tenant from
the responsibility of performing any of Tenant's obligations
under this Lease. Landlord shall not be liable to Tenant for
any damages, direct, indirect or consequential, or for damages
for personal discomfort, illness or inconvenience of Tenant or
Tenant's Agents, or for loss, damage or theft of Tenant's or
Tenant's Agents improvements, equipment, or property of any
nature unless caused by Landlord's deliberate and unlawful act
or by Landlord's gross negligence.
10. SECURITY:
_________
With respect to security for the Building, Landlord and
Xxxxxx hereby agree as follows:
A. Xxxxxxxx's Responsibility.
Landlord shall: (1) install a system (the "Access System")
to reasonably control access to the Building after normal
Business Hours Monday through Friday and shall issue access cards
to Tenant at a cost of $35.00 each, except that Landlord shall
initially provide, at its expense, one card per one hundred
square feet of rentable space, and (2) respond in a reasonable
time to Building alarms and/or reports of an emergency nature on
a twenty-four (24) hour basis by providing notice to the
necessary public authority. Tenant acknowledges that Xxxxxxxx
does not insure, promise or guarantee the safety of Tenant or
Tenant's Agents and cannot prohibit or warrant against criminal
or intentional acts of other individuals. Landlord shall in no
way be liable for damage to property or injury to person as a
result of criminal or intentional acts of others. In addition,
Xxxxxx acknowledges that Landlord has no control over the
security, access to, or operation of parking spaces in areas not
owned by Landlord and agrees that neither Landlord nor Managing
Agent shall have any duty to Tenant or any of Tenant's Agents for
any lack of security at, in or around areas not owned by
Landlord.
B. Tenant's Responsibility.
Tenant shall: (1) abide by all policies, procedures and
rules and regulations for use of the Access System, (2) report
promptly the loss or theft of all keys or access devices such as
access cards which would permit unauthorized entrance to the
Premises or Building, (3) report to Landlord the employment or
discharge of employees and their vehicles make, model, and
license number, (4) promptly report to Landlord door-to-door
solicitation or other unauthorized activity in the Building and
(5) promptly inform the Managing Agent in the event of a break-in
or other emergency.
C. Interruption of Security.
Tenant acknowledges that the above security provisions may
be suspended or modified at Xxxxxxxx's sole discretion or as a
result of causes beyond the reasonable control of Landlord. No
such interruption, discontinuance or modification of security
service will constitute an eviction, constructive eviction, or a
disturbance of Tenant's use and possession of the Premises, and
further, no interruption, discontinuance or modification of
security service will render Landlord liable to Tenant or third-
parties for damages, abatement of Rent, or otherwise, or relieve
Tenant of the responsibility of performing Tenant's obligations
under this Lease.
X. Xxxxxxxx's Liability.
Notwithstanding anything to the contrary set forth in this
Lease, Landlord shall have no liability to Tenant or any other
person or entity for the safety or security of any parking area
or structure, including, without limitation, the City Garages and
any parking garage or parking area owned by any state or local
government, any associated or related entity or by any other
person or entity.
11. REPAIRS AND MAINTENANCE:
________________________
12
X. Xxxxxxxx's Responsibilities
During the Lease Term, Landlord shall define, set, and
maintain the level of repairs and maintenance ("Building
Standard") for the Building, the Common Areas, and all other
areas serving the Building, in a manner comparable to the levels
for office buildings of similar quality to and in the immediate
geographic area of the Building. Landlord's responsibilities
with respect to repairs and maintenance are for those
systems/areas described as follows: (1) the structural and roof
systems of the Building, (2) the Building Standard electrical
and mechanical systems, (3) the primary water and sewer systems
located within the Building, (4) the Building Common Areas, and
the Common Area furniture, fixtures, and equipment, (5) the
landscaped areas in and about the Building which are owned and
controlled by Landlord, and (6) replacement of light bulbs in the
Building Common Areas.
B. Tenant's Responsibilities.
During the Lease Term, Tenant will repair and maintain the
following at Xxxxxx's expense:
(1) The interior portion of the demising walls
and the interior partition walls of the Premises and their wall-
covering.
(2) The electrical and mechanical systems not
considered Building Standard which have been installed by either
Landlord or Tenant, for the exclusive use and benefit of Tenant,
including, by way of example but not limitation, the following:
(a) electrical services for computers or similar items,
(b) projection room equipment such as dimmers, curtains, or
similar items, (c) water closet plumbing, kitchen plumbing or
similar items, (d) HVAC for other than comfort cooling in the
Premises, (e) security systems for the Premises, (f) telephone
system for the Premises; and (g) other similar systems.
(3) Except for the janitorial services, if any,
set forth in paragraph 9A(1) of this Lease, the repair and
maintenance of the floor covering of the Premises, including VCT
flooring, ceramic tiles, marble, wood flooring, or similar cover
ings, shall be performed by Landlord upon Xxxxxx's request, at
Tenant's expense, and Tenant will be billed for same as
Additional Rent. At least once per year, if necessary in the
sole and absolute discretion of Landlord, Landlord will clean
Tenant's carpeting at Tenant's expense and the cost of such
cleaning will be billed to Tenant as Additional Rent. Should
additional cleaning be requested by Tenant, such cleaning will be
available at Tenant's expense and will be billed to Tenant as
Additional Rent.
(4) All cabinets and millwork (regardless of
ownership) within the Premises.
(5) All other personal property, improvements or
fixtures within the Premises, except those items enumerated in
paragraph 11A hereof. Those items to be repaired and maintained
by Tenant include, but are not limited to, the following: (a)
ceiling tiles and ceiling grid, (b) molding or other woodwork and
paneling, (c) light fixtures and bulbs, (d) draperies, blinds or
wall hangings, (e) glass partition walls, (f) water closets and
kitchen areas serving the Premises exclusively, (g) doors and
lock sets, (h) fire extinguishers in the Premises, and (i)
vaults, safes, or secured areas. For the aforesaid items,
Landlord may elect at Landlord's option, with Xxxxxx's approval
(which approval will not be unreasonably withheld) to maintain
and repair same at Tenant's expense and Tenant will be billed for
same as Additional Rent.
C. Repairs and Maintenance; Miscellaneous.
Notwithstanding any of the provisions of this paragraph 11
to the contrary, Landlord shall have no responsibility to repair
or maintain the Building, any of its components, the Common
Areas, the Premises, or any fixture, improvement, trade fixture,
or any item of personal property contained in the Building, the
Common Areas, and/or the Premises if such repairs or maintenance
are required because of the occurrence of any of the following:
(i) the acts, misuse, improper conduct, omission or neglect of
Tenant or Tenant's
13
Agents, or (ii) the conduct of business in the Premises, normal
wear and tear excepted. Should Landlord elect to make repairs or
maintenance occasioned by the occurrence of any of the foregoing,
Tenant shall pay as Additional Rent all such costs and expenses
incurred by Landlord. Landlord shall have the right to approve
in advance all work, materials, repair, maintenance or otherwise,
to be performed or used under this Lease by Tenant and all of
Tenant's repairmen, contractors, subcontractors and suppliers
performing work or supplying materials and prior to Tenant
performing any repairs or maintenance with respect to this
paragraph, Tenant shall be required to submit detailed plans
and drawings and specifications for such repairs and maintenance
at the time approval is sought. Tenant shall be responsible for
all permits, inspections and certificates for accomplishing the
above. Tenant shall obtain lien waivers for all work done in
or to the Premises.
12. TENANT'S ALTERATIONS:
_____________________
A. During the Lease Term, Tenant will make no material
alterations, additions or improvements in or to the Premises, of
any kind or nature, including, but not limited to, alterations,
additions or improvements in, to, or on telephone or computer
installations, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, delayed, or
conditioned. Tenant shall submit to Landlord detailed plans and
drawings and specifications of the proposed alterations,
additions or improvements including the type of materials to be
used, at the time Landlord's consent is sought. Should Landlord
consent to any proposed material alterations, additions or
improvements by Tenant, such consent will be conditioned upon
Tenant's agreement to comply with all reasonable requirements,
including safety requirements, established by Landlord. As
stated herein, all improvements made hereunder by Landlord (with
the exception of Xxxxxx's trade fixtures) will become Landlord's
property when incorporated into or affixed to the Building and
if made by Tenant, upon expiration or termination of the Lease,
or upon default by Tenant (unless promptly cured within any
applicable cure period). However, at Landlord's option, Landlord
may, at the expiration or termination of the Lease Term, require
Tenant, at Tenant's expense, to remove improvements and
alterations made by Tenant, including wiring and cabling above
the ceiling grid and to restore the Premises to their original
condition.
B. It is understood and agreed between the parties that
any charges against Tenant by Landlord for alterations, additions
or improvements in or to the Premises made by Landlord, or its
agents, or contractors by order or request of Tenant (except for
Landlord's additions and alterations as provided in paragraph 13
hereof) or otherwise occurring under this Lease, shall be payable
as Additional Rent as billed by Landlord and excluded from Operat
ing Expenses.
13. LANDLORD'S ADDITIONS AND ALTERATIONS:
_____________________________________
Xxxxxxxx has the right to make changes in and about the
Building, and the Common Areas. Such changes may include, but
not be limited to, rehabilitation, redecoration, refurbishment
and refixturing of the Building, and Common Areas and expansion
of or structural changes to the Building and Common Areas.
Xxxxxxxx agrees that Xxxxxxxx will construct the corridors at
Landlord's sole cost and expense in accordance with the work
letter. The right of Tenant to quiet enjoyment and peaceful
possession given under the Lease will not be deemed breached or
interfered with by reason of Landlord's actions pursuant to this
paragraph so long as such actions do not materially deprive
Tenant of its use of the Premises or materially interfere with
the conduct of Xxxxxx's business in the Building.
14. ASSIGNMENT AND SUBLETTING:
__________________________
X. Xxxxxx agrees not to sell, transfer, assign, mortgage,
hypothecate, pledge, or encumber this Lease, or any part thereof,
or sublet the Premises, or any part thereof, or permit the
Premises, or any part thereof, to be used or occupied by others,
intentionally or by operation of law, without the prior written
consent of Landlord, which consent may not be unreasonably
withheld, delayed or conditioned. In no event may Tenant assign
this Lease or sublet the Premises or any portion thereof to any
existing Tenant of the Building or to any party who has occupied
the Building or been approached by the Building's agent
14
or owner or been issued a proposal for lease of the Building in
the period preceding one hundred eighty (180) days of such
proposed assignment. Any assignment or sublease without Xxxxxxxx's
prior written consent, or attempt at same, is a material default
hereunder and is null, void and of no force or effect whatsoever.
If Landlord consents to an assignment or sublease, (i) such
assignment or sublease will not relieve Tenant of its obligations
or liabilities under this Lease, and (ii) any extensions,
renewals, first refusal rights or options hereunder will automa
tically be of no further force or effect for the assignee or
sublessee or Tenant. If Tenant is an entity, other than a
corporation whose shares are traded on a nationally recognized
stock exchange, any change to the structure of such entity or any
disposition(s) of any of the interests therein by sale, assign
ment, operation of law or otherwise, or any change in the power
to vote the interests therein, will be treated as a prohibited
assignment of this Lease requiring Tenant to obtain Landlord's
prior written consent. Xxxxxxxx acknowledges and agrees that
Tenant is a corporation whose shares are traded on a nationally
recognized stock exchange.
B. Notwithstanding any other provision contained herein to
the contrary, in lieu of giving its consent to a proposed
assignment or sublease, if Tenant does not elect to withdraw
such request, Landlord may, without incurring any liability to
Tenant, elect to recapture, effective as of the proposed
effective date of the assignment or proposed commencement date of
the sublease, all or part of the Premises that are the subject of
the proposed assignment or sublease (in the latter case and at
Landlord's sole option, for either the proposed term of the
sublease or the remaining portion of the Lease Term). As to the
portion of the Premises so recaptured, Tenant shall be released
from liability to perform any obligations for the term beginning
with the proposed effective date of the assignment or proposed
commencement date of the sublease (and, in the latter case, for
the proposed term of the sublease or the Lease Term depending on
Landlord's election). As a prerequisite for giving its consent
to a proposed assignment or sublease, Landlord may require, among
other things, that it receive, in addition to all Rent and other
sums due under this Lease, one-half of the Net Profit, as defined
below, due Tenant under the assignment or sublease and/or
Landlord may require that the new tenant execute an instrument
prepared by Landlord with terms, provisions, conditions and
covenants acceptable to Landlord in its sole discretion. "Net
Profit" shall mean all Rent, including Base Rent, Overhead Rent
and Additional Rent (including all sums that would otherwise be
Additional Rent were they not timely paid), and other
consideration due Tenant under the assignment or sublease in
excess of all Rent required under this Lease, but less any
reasonable tenant improvement allowance, reasonable brokerage
commissions and Rent concessions. Xxxxxxxx's share of the Net
Profit shall be paid by Tenant to Landlord upon Xxxxxx's receipt
of same, and the failure of the assignee or sublessee to timely
pay same, or any default under the applicable assignment or
sublease instrument, shall constitute a default under this Lease.
Xxxxxxxx's share of the Net Profit shall be considered Additional
Rent and included in Landlord's lien for rent. Landlord shall
have the right to audit Xxxxxx's books upon reasonable notice to
determine Xxxxxxxx's share of the Net Profit. A default under
this Lease shall occur if Tenant is determined to have
understated Xxxxxxxx's share of the Net Profit by more than five
percent (5%) in any calendar year. Tenant shall pay Landlord the
sum of ONE THOUSAND AND 00/100 DOLLARS ($1,000.00) each and every
time Tenant requests Xxxxxxxx's consent to enter into any
assignment or sublease. Said $1,000.00 shall be paid within
ten (10) days after Landlord submits to Tenant an invoice for
same. If not paid within said ten (10) days, said sum shall be
considered as Additional Rent and included in any lien for rent.
15. TENANT'S INSURANCE COVERAGE:
____________________________
A. Tenant agrees that, at all times during the Lease Term
(as well as prior and subsequent thereto if Tenant or any of
Tenant's Agents should then use or occupy any portion of the
Premises), it will keep in force, with an insurance company
licensed to do business in the State of Florida and at least
A-rated in the most current edition of Best's Insurance Reports,
and otherwise acceptable to Landlord, loss of income coverage and
comprehensive general commercial liability and property damage
insurance on an occurrence basis in the amount of not less than
TWO MILLION AND 00/100 DOLLARS ($2,000,000.00) for personal
injury or death and not less than the full replacement value of
Tenant's improvements to the Premises and all of Tenant's
property and the property of others located on the Premises
(without deductible insofar as liability coverage is
15
concerned and with not more than FIVE THOUSAND AND 00/100 DOLLARS
($5,000.00) deductible insofar as property damage is concerned).
Such policies will: (i) include Landlord, Managing Agent and
such other parties as Landlord may reasonably designate as
additional insured's, (ii) be considered primary insurance, (iii)
if available under commercially reasonable terms, include within
the terms of the policy or by contractual liability endorsement
coverage insuring Tenant's indemnity obligations under para
graphs 8, 20, 22, 33, 43, 44, and as otherwise set forth in this
Lease and (iv) provide that it may not be canceled or changed
without at least thirty (30) days prior written notice from the
company providing such insurance to each party insured
thereunder. Tenant will also maintain throughout the Lease Term
worker's compensation insurance and such other insurance as may
be required by law with not less than the maximum statutory
limits of coverage.
B. The insurance coverage to be provided by Tenant will be
for a period of not less than one year. At least fifteen (15)
days prior to the Lease Commencement Date, Tenant will deliver to
Landlord original certificates of all such insurance, with
evidence of payment of the premiums thereof; thereafter, at least
fifteen (15) days prior to the expiration of any policy, Tenant
will deliver to Landlord such original certificates as will
evidence a renewal of such insurance, or a new policy to take
the place of the one expiring, with evidence of payment of the
premiums thereof.
16. LANDLORD'S INSURANCE COVERAGE:
______________________________
A. Landlord will at all times during the Lease Term
maintain a policy or policies of insurance insuring the Building
against loss or damage by fire, explosion or other hazards and
contingencies typically covered by insurance for the full
insurable value of the Building. Landlord reserves the right to
self insure in lieu of maintaining such policy or policies.
Nothing herein shall require Landlord to maintain insurance on
any Tenant Improvements or personal property or property of
Tenant or on any property for which this Lease requires Tenant to
maintain insurance.
B. Tenant will not do or permit anything to be done upon
or bring or keep or permit anything to be brought or kept upon
the Premises which will increase Landlord's rate of insurance on
the Building. If by reason of the failure of Tenant to comply
with the terms of this Lease, or by reason of Tenant's occupancy
(even though permitted or contemplated by this Lease), the in
surance rate shall at any time be higher than it would otherwise
be, Tenant will reimburse Landlord for that part of all insurance
premiums charged because of such violation or occupancy by
Tenant, within ten (10) days after Landlord submits to Tenant an
invoice for same. If not paid within said ten (10) days, said
amounts shall be considered Additional Rent and included in any
lien for Rent. Xxxxxx agrees to comply with any requests or
recommendation made by Landlord's insurance underwriter
inspectors.
17. SUBROGATION:
____________
A. Each party will look first to any insurance in its
favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casual
ty, and to the extent that such insurance is in force and collec
tible and to the extent permitted by law, Tenant hereby waives
and releases all rights of subrogation under Xxxxxx's insurance
policies discussed in paragraph 15 and Tenant will cause each
such insurance policy to be properly endorsed to evidence such
waiver and release of subrogation by the insurance carrier of
Tenant in favor of Landlord.
B. Tenant acknowledges that Landlord will not carry
insurance on improvements, furniture, furnishings, trade
fixtures, equipment installed in or made to the Premises by or
for Tenant, and Xxxxxx agrees that Tenant, and not Landlord, will
be obligated to promptly repair any damage thereto or replace the
same. Tenant shall bear the entire risk of loss of all personal
property of Xxxxxx and Xxxxxx's Agents and all improvements to
the Premises made in accordance with the Work Letter, whether by
Landlord or Tenant.
18. DAMAGE OR DESTRUCTION BY CASUALTY:
__________________________________
16
A. If by fire or other casualty the Premises are totally
damaged or destroyed, or the Building is partially damaged or
destroyed to the extent of twenty-five percent (25%) or more of
the replacement cost thereof (even though the Premises may not be
damaged), Landlord will have the option of terminating this Lease
or any renewal thereof by serving written notice upon Tenant
within one hundred eighty (180) days from the date of the
casualty and any prepaid Rent will be prorated as of the latter
of either (i) the date of destruction or (ii) the date that
Tenant vacates the Premises, and the unearned portion of such
Rent will be refunded to Tenant without interest.
B. If by fire or other casualty the Premises are damaged
or partially destroyed to the extent of twenty-five percent (25%)
or more of the replacement cost thereof and the provisions of
paragraph A above are not applicable, then (i) if the unexpired
Lease Term is less than two years, excluding any theretofore
unexercised renewal option, Landlord may either terminate this
Lease by serving written notice upon Tenant within thirty (30)
days of the date of destruction or Landlord may restore the
Premises, or (ii) if the unexpired Lease Term is more than two
years, including any previously exercised renewal option,
Landlord shall, within thirty (30) days after insurance proceeds
have been made available therefor, commence to restore the
Premises and, thereafter diligently prosecute such restoration;
provided, however, that Landlord shall not be required to make
modifications to the Premises required by laws whose effective
date was subsequent to the original Lease Commencement Date, and
if such modifications are required by local governmental
authorities as a condition of permitting restoration and
occupancy of the Premises, Landlord, at its sole option, may
terminate this Lease upon written notice to Tenant effective as
of the date of destruction.
C. If by fire or other casualty the Premises are damaged
or partially destroyed to the extent of less than twenty-five
percent (25%) of the replacement cost thereof and the provisions
of paragraph A above are not applicable, then (i) if the
unexpired Lease Term is less than two years, excluding any
theretofore unexercised renewal option, Landlord may either
terminate this Lease by serving written notice upon Tenant within
thirty (30) days of the date of destruction or Landlord may
restore the Premises, or (ii) if the unexpired Lease Term,
including any previously exercised renewal option is more than
two years then Landlord shall, within thirty (30) days after
insurance proceeds have been made available therefor, commence to
restore the Premises and, therefore, diligently prosecute such
restoration; provided, however, that Landlord shall not be
required to make modifications to the Premises required by laws
whose effective date was subsequent to the original Lease
Commencement Date, and if such modifications are required by
local governmental authorities as a condition of permitting
restoration and occupancy of the Premises, Landlord, at its sole
option may terminate this Lease upon written notice to Tenant as
of the date of destruction.
D. In the event of restoration by Landlord, all Rent paid
in advance shall be apportioned as of the date of damage or
destruction and all Rent thereafter accruing shall be equitably
and proportionately adjusted according to the nature and extent
of the destruction or damage to the usable area of the Premises,
pending substantial completion of rebuilding, restoration or
repair to the Premises. In the event the destruction or damage
is so extensive as to make it unfeasible for Tenant to conduct
Tenant's business in the Premises and if Tenant vacates the
Premises, Rent under this Lease will be completely abated until
the Premises are substantially restored by Landlord or until
Tenant resumes use and occupancy of the Premises, whichever shall
first occur. Landlord will not be liable for any damage to or
any inconvenience or interruption of business of Tenant or any of
Tenant's Agents occasioned by fire or other casualty.
X. Xxxx restoration, rebuilding or repairing will be at
Landlord's sole cost and expense, subject to the availability of
applicable insurance proceeds. Landlord shall have no duty to
restore, rebuild or replace Xxxxxx's personal property and trade
fixtures, or any of Tenant's alterations or improvements.
Landlord may, at Landlord's sole option and subject to the
availability of insurance proceeds from insurance required to be
maintained by Tenant under paragraph 15 of this Lease, restore,
rebuild or repair Tenant
17
Improvements in the Premises as part of any general plan of
Building restoration, rebuilding or replacement. Notwithstanding
anything to the contrary in this Lease, including, but not
limited to this paragraph 18, Xxxxxxxx's obligation(s) to repair,
rebuild or restore the Building or the Premises shall exist only
to the extent of insurance proceeds actually received by Landlord
in connection with the condition or event which gave rise to
Landlord's obligation to repair, rebuild or restore.
19. CONDEMNATION AND EMINENT DOMAIN:
________________________________
A. If all or a substantial part of the Premises are taken
for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or by
purchase in lieu thereof, and the taking would prevent or
materially and adversely interfere with the use of the Premises
for the purpose for which they are then being used, this Lease
will be deemed to terminate as a result of and as of the date of
such taking, and the Rent will be abated during the unexpired
portion of this Lease effective on the date physical possession
is taken by the condemning authority. Tenant will have no claim
to any portion of the condemnation award and hereby irrevocably
waives any portion of the condemnation award and any right to
appear in the condemnation proceedings. Tenant covenants that it
will not file any pleading or claim in the condemnation
proceedings and that any claim filed will be a default by Tenant
under this Lease. For purposes of this paragraph 19.A,
"substantial part of the Premises" shall mean at least twenty
percent (20%) of the usable area of the Premises.
B. In the event a portion of the Premises is taken for any
public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain or by purchase in
lieu thereof, and this Lease is not terminated as provided in
paragraph A above, Landlord may, at Xxxxxxxx's expense, restore
the Premises to the extent necessary to make them reasonably
tenantable. The Rent payable under this Lease during the
unexpired portion of the Lease Term shall be adjusted to such an
extent as may be fair and reasonable under the circumstances.
Tenant shall have no claim to any portion of the condemnation
award with respect to the leasehold estate but, in a separate
proceeding, may make a separate claim for trade fixtures and
improvements installed in the Premises by and at the expense of
Xxxxxx and Xxxxxx's moving expenses. In no event will Tenant
have any claim for the value of the unexpired Lease Term. Tenant
shall cooperate with Landlord in order for Landlord to obtain the
highest possible award from the condemning authority. Tenant is
hereby specifically prohibited from making any claim which could
reduce the condemnation award to Landlord and Tenant hereby
forever irrevocably waives any right or claim to or interest in
any portion of any condemnation award related to the Premises.
C. Notwithstanding the foregoing, even if the Premises are
not affected in whole or in part by a taking, Landlord will have
the right to terminate this Lease upon ten (10) days prior
written notice to Tenant if a material portion of the Building is
taken by condemnation or eminent domain proceedings or by
purchase in lieu thereof. Upon any such termination, Landlord
and Tenant will each be released from all further liability under
this Lease. For purposes of this paragraph C, "material portion
of the Building" shall mean at least twenty percent (20%) of the
Net Rentable Area of the Building or Common Area of the Building.
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION:
____________________________________________________
A. All personal property placed or moved into the Building
will be at the sole risk of Tenant or other owner. Unless
resulting solely from the willful misconduct or gross negligence
of Landlord, Landlord will not be liable to Tenant or others for
any damage to person or property arising from Acts of God,
Hazardous Substances , theft, vandalism, HVAC malfunction, the
bursting or leaking of water pipes, any act or omission of any co-
tenant or occupant of the Building or of any other person, or
otherwise.
B. Notwithstanding any contrary provision of this Lease:
(i) Tenant will look solely (to the extent insurance coverage is
not applicable or available) to the interest of
18
Landlord (or its successor as Landlord hereunder) in the Building
for the satisfaction of any judgment or other judicial process
requiring the payment of money as a result of any negligence or
breach of this Lease by Landlord or its successor or of
Landlord's Managing Agent (including any beneficial owners,
partners, corporations and/or others affiliated or in any way
related to Landlord or such successor or Managing Agent) and
(ii) Tenant's sole right and remedy in any action or proceeding
concerning Landlord's reasonableness (where the same is
required under this Lease) will be an action for declaratory
judgment and/or specific performance.
X. Xxxxxx agrees to indemnify, defend and hold harmless
Landlord and its agents from and against all claims, causes of
actions, liabilities, judgments, damages, losses, costs, fees and
expenses, including reasonable attorneys' and paralegal's fees
and costs through all appellate proceedings, including bankruptcy
proceedings, incurred or suffered by Landlord and arising from or
in any way connected with the Premises or the use thereof or any
acts, omissions, neglect or fault of Tenant or any of Tenant's
Agents, including, but not limited to, any breach of this Lease
or any death, personal injury or property damage occurring in or
about the Premises or the Building or arising from Tenant's
indemnification obligation pursuant to paragraph 43 below.
Tenant will reimburse Landlord upon request for all costs
incurred by Landlord in the enforcement of any provisions of
this Lease and/or the collection of any sums due to Landlord
under this Lease, including collection agency fees, and reason
able attorneys' fees, costs and expenses, regardless of whether
litigation is commenced, and through all appellate actions and
proceedings, including bankruptcy proceedings, if litigation is
commenced.
21. RELOCATION OF TENANT:
_____________________
A. Recognizing that the Building is large and the needs of
tenants as to space may vary from time to time, and in order for
Landlord to accommodate Tenant and prospective tenants, Landlord
expressly reserves the right, prior to and/or during the Lease
Term, at Xxxxxxxx's sole expense, to move Tenant from the
Premises and relocate Tenant in other comparable space of
Landlord's choosing of approximately the same dimensions and size
within the Building, which other space will be decorated by
Landlord at its expense. Landlord, in Landlord's sole
discretion, may use decorations and materials from the existing
Premises, or other materials, so that the space in which Tenant
is relocated will be reasonably comparable in quality in its
interior design and decoration to the space from which Tenant is
removed.
B. During the relocation period Landlord will use
reasonable efforts not to unduly interfere with Xxxxxx's business
activities, and Landlord agrees to substantially complete the
relocation within a reasonable time under all then existing
circumstances.
C. This Lease and each of its terms and conditions will
remain in full force and effect and be applicable to any such new
space and such new space will be deemed to be the Premises
demised hereunder; Tenant will execute such documents which may
be requested to evidence, acknowledge and confirm the relocation
(but the relocation will be effective even in the absence of such
confirmation).
X. Xxxxxxxx's obligation for expenses of removal and
relocation will be the actual cost of relocating and decorating
Tenant's new space, and Xxxxxx agrees that Landlord's exercise of
its election to remove and relocate Tenant will not release
Tenant in whole or in part from its obligations hereunder for the
full Lease Term. No rights granted in this Lease to Tenant,
including the right of peaceful possession and quiet enjoyment,
will be deemed breached or interfered with by reason of
Xxxxxxxx's exercise of the relocation right reserved herein.
E. If Landlord exercises its relocation right under this
paragraph, (i) Tenant will be given no less than thirty (30) days
prior notice in writing, and (ii) Landlord will reimburse Tenant
for the reasonable cost of replacement of stationery and
telephone relocation and other similar expenses necessitated by
the exercise of said right of relocation which expenses shall not
include charges for inconvenience or Tenant's time.
19
F. Notwithstanding the foregoing, Landlord waives its
right to relocate Suite 120, and its right to relocate Suite 1000
so long as Suite 1000 is not reduced in size.
22. COMPLIANCE WITH LAWS:
_____________________
A. Miscellaneous.
Tenant, at its sole cost and expense, will promptly comply
with all applicable laws, guidelines, rules, regulations and
requirements, whether of federal, state, or local origin, ap
plicable to the Premises and the Building, including those for
the correction, prevention and abatement of nuisance, unsafe
conditions, or other grievances arising from or pertaining to the
use or occupancy of the Premises. Furthermore, materials used in
the construction of a building like the Building may contain
potentially hazardous substances, including, without limitation,
asbestos containing materials, radon gas, mineral fibers, and
Hazardous Substances as hereinafter defined. Accordingly, Tenant
acknowledges that such substances are or may be present in the
Building, and agrees that Tenant and Xxxxxx's Agents shall
comply with all operation and maintenance programs and guidelines
implemented or promulgated from time to time by Landlord or its
consultants to reduce the risk of injury from Hazardous
Substances to Tenant, Xxxxxx's Agents or any other tenants of the
Building but Tenant shall not be required to fund improvements to
the Premises resulting from such compliance. Tenant specifically
waives any and all rights Tenant may have for constructive
eviction by reason of Landlord's exercise of its rights herein.
Tenant hereby agrees to perform all actions necessary to comply
with the requirements of Title III of the Americans With
Disabilities Act of 1990, as amended from time to time, (the
"ADA") in connection with its business operation on the Premises.
Xxxxxx further agrees to indemnify and hold Landlord and Managing
Agent harmless from and against any and all claims, liability,
injury, damages, causes of action, costs or expenses of any
nature whatsoever including attorneys' fees which Landlord
suffers as a result of Xxxxxx's failure to comply with the ADA.
B. Americans with Disabilities Act ("ADA").
(1) The Landlord shall cause the common areas of
the Building as hereinafter defined, to meet the requirements of
the Title III of ADA.
(2) The Tenant, at its sole cost and expense,
shall be solely responsible for taking any and all measures which
are required to comply with the requirements of Title I and/or
Title III of the ADA within the Premises. Any alterations to the
Premises made by Tenant for the purpose of complying with the ADA
or which otherwise require compliance with the ADA shall be done
in accordance with this Lease; provided, that Landlord's consent
to such alterations shall not constitute either Landlord's assump
tion, in whole or in part, of Tenant's responsibility for
compliance with the ADA or representation or confirmation by
Landlord that such alterations comply with the provisions of the
ADA.
(3) Tenant shall indemnify the Landlord for all
claims, damages, judgments, penalties, fines, administrative
proceedings, costs, expenses and liability arising from Tenant's
failure to comply with any of the requirements of Title I and/or
Title III of the ADA within the Premises.
(4) Landlord shall indemnify the Tenant for all
claims, damages, judgments, penalties, fines, administrative
proceedings, costs, expenses and liability arising from
Landlord's failure to comply with Title III of the ADA within the
common areas.
23. RIGHT OF ENTRY:
_______________
Landlord and its agents will have the right to enter the
Premises during all reasonable hours and upon reasonable notice
to examine and inspect the same and to make such repairs,
alterations, improvements or additions to the Premises as the
Landlord
20
may deem necessary or desirable. In the event of an emergency,
Landlord or its agents may enter the Premises at any time,
without notice, to appraise and correct the emergency condition.
Said right of entry will, after reasonable notice, likewise
exist for the purpose of removing placards, signs, fixtures,
alterations, or additions which do not conform to this Lease.
Landlord or its agents will have the right to exhibit the
Premises at any time to prospective tenants within one hundred
eighty days (180) before the Expiration Date of the Lease.
24. DEFAULT:
________
A. Events of Default.
If (1) Tenant fails to pay any portion of Rent, Overhead
Rent or Additional Rent or any other sum payable under this Lease
immediately when same shall become due and payable, or (2) Tenant
vacates or abandons the Premises prior to the Expiration Date in
contravention of the terms and provisions of this Lease, or (3)
Tenant fails to fulfill or comply with any of the terms or
conditions of this Lease, or (4) Tenant sells, assigns, conveys,
liens, mortgages, pledges or encumbers Xxxxxx's interest in this
Lease to benefit a creditor of Tenant or under any execution or
process of law, or (5) Xxxxxx enters into an assignment or
sublease in a manner other than as set forth in paragraph 14 or
understates Landlord's share of Net Profit by more than five
percent (5%) as set forth in paragraph 14, or (6) Tenant or any
third party removes a substantial portion of the equipment or
furnishings normally kept on the Premises, or (7) Tenant or any
of its successors or assigns or any guarantor of this Lease
("Guarantor") should file any voluntary petition in bankruptcy,
reorganization or arrangement, or an assignment for the benefit
of creditors or for similar relief under any present or future
statute, law or regulation relating to relief of debtors, or (8)
Tenant or any of its successors or assigns or any Guarantor
should be adjudicated bankrupt or have an involuntary petition in
bankruptcy filed against it, or (9) Tenant shall permit, allow or
suffer to exist any lien, judgment, writ, assessment, charge,
attachment or execution upon Xxxxxxxx's or Tenant's interest in
this Lease or to the Premises, and/or the fixtures, improvements
and furnishings located thereon; then, Tenant shall be in default
hereunder.
B. Tenant's Grace Periods.
If Tenant fails to cure any default within ten (10) days
after notice from Landlord specifying the nature of such default
(unless such default is of a nature that it cannot be completely
cured within said ten (10) day period and steps have been
diligently commenced to cure or remedy it within such ten (10)
day period and are thereafter pursued with reasonable and
continual diligence and in good faith until such default is cured
and such default is actually cured within sixty (60) days after
such notice), then Landlord shall have such remedies as are
provided under this Lease and/or under the laws of the State of
Florida.
C. Repeated Late Payment.
Regardless of the number of times of Landlord's prior
acceptance of late payments and/or late charges, if Landlord
notifies Tenant twice in any 6-month period that Rent or any
Additional Rent has not been paid when due, any further late
payment within such 6-month period will constitute a default
hereunder and there shall be no grace period for Tenant to cure
such default.
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT:
_________________________________________
Upon the occurrence of a default under this Lease, Landlord
shall be entitled to seek any remedy allowable by law or equity,
all of which remedies shall be cumulative and none of which,
unless Landlord expressly so states in writing, shall terminate
Tenant's liability to pay all Rent and other sums due hereunder
for the unexpired portion of the Lease Term. Such remedies shall
include, but not be limited to:
21
A. Declaring immediately due and payable the total
remaining Base Rent for the Lease Term.
B. Declaring immediately due and payable the total
estimated Overhead Rent and Additional Rent consisting of
Tenant's proportionate share of future Operating Expenses and
Taxes that would become due during the remainder of the Lease
Term if the current estimated rate of such rents were to increase
for the remainder of the Lease Term at the same annual rate of
increase as the average annual increase during the most recent
three (3) calendar years or, if shorter, the period from the
beginning of the Lease Term through the date of default.
C. Immediately, or at any time thereafter, reentering and
resuming possession of the Premises and removing all persons and
property therefrom either by summary dispossession proceedings or
by a suitable action or proceeding at law or in equity, or by
force or otherwise, with or without court order or writ, without
being liable for any damages therefor. No reentry by Landlord
shall be deemed an acceptance of a surrender of this Lease.
D. Reletting the whole or any part of the Premises for a
period equal to, or greater or less than, the remainder of the
then remaining Lease Term, at such rental and upon such terms and
conditions as Landlord shall deem reasonable, to any tenant or
tenants which it may deem suitable and satisfactory and for any
use and purpose which it may deem appropriate. In no event shall
Landlord be liable in any respect for failure to relet the
Premises, or, in the event of such reletting, for failure to
collect the Rent or other sums due thereunder. Any sums received
by Landlord on a reletting with respect to the then-remaining
Lease Term shall belong to Landlord and shall, after deducting
all costs and expenses of any nature incurred by Landlord, be
applied to Tenant's account until all sums due under this Lease
have been received by Landlord, at which time any and all
additional sums shall belong to Landlord.
E. DELETED.
________
F. Recovering the cost of placing the Premises in the same
condition as that in which Tenant is required to surrender them
to Landlord under this Lease.
G. Retaining and setting off against its damages any
moneys being held as deposits hereunder.
H. Tenant hereby waives any notices of default not
specifically provided for herein, including without limitation,
the three (3) day notice required by Section 83.20, Florida
Statutes.
I. Landlord shall have the right to recover from Tenant
the cost of all lease concessions, including without limitation,
all Rent waived between the Lease Commencement Date and the Rent
Commencement Date.
The remedies of Landlord as set forth above, which are
available to Landlord because of the default of Tenant, shall be
cumulative and the election of any remedy shall not be deemed to
be a waiver or rejection any other remedy of Landlord and shall
be in addition to and shall not exclude any other remedy
available to Landlord under this Lease or applicable law.
26. LANDLORD'S DEFAULT:
___________________
A. If Tenant asserts that Xxxxxxxx has failed to meet its
obligations under this Lease, Tenant shall provide written notice
("Notice of Default") to Landlord specifying the alleged failure
to perform, and Tenant shall send by certified mail, return
receipt requested, a copy of such Notice of Default to any and
all mortgage holders, provided that Tenant has been previously
advised of the address(es) of such mortgage holder(s). If
Landlord has not begun and pursued with reasonable diligence the
cure of any failure of Landlord to
22
meet its obligations under this Lease within twenty (20) days of
receipt of the Notice of Default, then subject to the right of
any mortgagee to cure a default of Landlord as set forth in
paragraph 26.B below, Landlord shall be in default.
B. If Landlord shall have failed to begin and pursue with
reasonable diligence the cure of such default within the time set
forth above, then the mortgage holder(s) shall have an additional
sixty (60) days after receipt of written notice, as described in
the preceding paragraph, within which to cure such default or, if
such default cannot be cured within that time, then such
additional time as may be necessary. If within such sixty (60)
days after receipt of written notice any mortgage holder has
commenced and is diligently pursuing the remedies necessary to
cure such default, including, but not limited to, commencement of
foreclosure proceedings if necessary to effect such a cure, this
Lease and Lease Term shall not be terminated while such remedies
are being so diligently pursued or thereafter if actually cured.
C. Notwithstanding any other provision contained in this
Lease to the contrary, the liability of Landlord and its
employees, agents, representatives, trustees, partners and
officers to Tenant and its partners, trustees, employees, agents,
representatives, officers, clients, contractors, invitees,
guests, visitors and customers for any default by Landlord under
this Lease shall be limited to the interest of Landlord in the
Building. Neither Landlord, nor Xxxxxxxx's partners, trustees,
employees, agents, Managing Agents, representatives, officers,
directors, clients contractors, invitees, guests, visitors or
customers shall not be liable for any deficiency judgment.
27. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT:
_________________________________________________
If Tenant fails to observe or perform any term or condition
of this Lease within the grace period, if any, applicable
thereto, then Landlord, upon written notice to Tenant, may
immediately or at any time thereafter perform the same for the
account of Xxxxxx. If Landlord makes any expenditure or incurs
any obligation for the payment of money in connection with such
performance for Tenant's account (including reasonable attorneys'
fees and costs in instituting, prosecuting and/or defending any
action or proceeding through appeal), the sums paid or
obligations incurred, with interest accruing from the date of
such expenditure at the highest rate allowable by law will be
paid by Tenant to Landlord within ten (10) days after rendition
of a bill or statement to Tenant. In the event Tenant, in the
performance or non-performance of any term or condition of this
Lease, should cause an emergency situation to occur or arise
within the Premises or in the Building, Landlord will immediately
have all rights set forth in this paragraph without the necessity
of providing Tenant any advance notice.
28. LIENS:
______
A. In accordance with the applicable provisions of the
Construction Lien Law and specifically Section 713.10, Florida
Statutes, no interest of Landlord, whether personally or in the
Premises, or in the underlying land or Building of which the
Premises are a part or the leasehold interest aforesaid, shall be
subject to liens for improvements made by Tenant or caused to be
made by Tenant hereunder. Further, Tenant acknowledges that
Tenant, with respect to improvements or alterations made by
Tenant or caused to be made by Tenant hereunder, shall promptly
notify, as required by state law, the contractor making such
improvements to the Premises of this provision exculpating
Landlord's liability for such liens.
B. Notwithstanding the foregoing, if any mechanic's lien
or other lien, attachment, judgment, execution, writ, charge or
encumbrance is filed against the Building or the Premises or this
leasehold, or any alterations, fixtures or improvements therein
or thereto, as a result of any work action or inaction done by or
at the direction of Tenant or any of Tenant's Agents, Tenant will
discharge the same of record by payment, bonding or otherwise
within ten (10) days after the filing thereof, failing which
Tenant will be in default under this Lease. In such event,
without waiving Tenant's default, Landlord, in addition to all
other available rights and remedies, without further notice, may
discharge the same of
23
record by payment, bonding or otherwise, as Landlord may elect,
and upon request Tenant will reimburse Landlord for all costs and
expenses so incurred by Landlord plus interest thereon from the
date of such expenditure at the highest rate allowed by law.
29. NOTICES:
________
Any notice or other communication permitted or required to
be given hereunder by one party to the other shall be in writing
and shall be hand delivered or mailed by registered or certified
United States Mail, postage prepaid, return receipt requested, to
the party entitled or required to receive the same at the address
specified below or at such other address as may hereafter be
designated in writing by any such party, to wit:
To Landlord: ABS XXXXX STREET, LLC
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
(000) 000-0000
With a copy to: XXXXX, XXXXXXX, XXXXXX & XXXXXXXXX,
P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Post Office Box 4548
Jacksonville, Florida 32201-4548
Attn: Xxxxx X. Xxxxxxx, Esq.
(000) 000-0000
To Tenant: THE JACKSONVILLE BANK
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, III, President &
CEO
With a copy to: XxXxxxx Xxxxx, LLP
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Halcyon X. Xxxxxxx, Esq.
(000) 000-0000
All notices, demands and requests so given shall be deemed to be
sufficiently served and delivered for all purposes hereunder at
the earlier of four (4) calendar days after such notice, demand
or request shall have been deposited in any post office or branch
post office regularly maintained by the U.S. Government or upon
actual receipt of such notice, demand or request by the party to
whom it is addressed. Each party may change its address from
time to time by written notice given to the other as specified
above.
30. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION:
______________________________________________
Xxxxxxxx has the unrestricted right to convey, mortgage and
refinance the Building, or any part thereof. Tenant agrees,
within seven (7) days after written request by Xxxxxxxx, to
execute and deliver to Landlord or its mortgagee or designee such
instruments, sworn to if requested, as Landlord or its mortgagee
may reasonably require, in the form attached as Exhibit "E" or
such other form as is reasonably requested by Xxxxxxxx,
certifying, among other matters, the amount of the Security
Deposit, whether this Lease is in full force and effect, all Rent
paid or due, the existence or nonexistence of any default in the
Lease, any claims set offs or damages due or claimed to be due to
Tenant from Landlord and any modifications to this Lease. This
estoppel certificate is intended to be for the benefit of
Landlord, any purchaser or mortgagee of Landlord, or any
purchaser or assignee of Landlord's mortgage. The estoppel
certificate will also contain such other information as Landlord
or its mortgagee or designee may reasonably which may affect the
Building, and to all recasting, renewals, modifications,
consolidations, replacements, and extensions of any such
mortgage(s), and to all increases and voluntary and involuntary
advances made thereunder. The foregoing will be self-operative
and no further instrument of subordination will be required.
However, within seven (7) days after written request, Xxxxxx
shall execute an agreement confirming said subordination and
Xxxxxx's attornment, in the form attached as Exhibit "E" or such
other form as is reasonably requested by Xxxxxxxx.
24
31. ATTORNMENT AND MORTGAGEE'S REQUEST:
___________________________________
A. If any mortgagee of the Building comes into possession
or ownership of the Premises, or acquires Landlord's interest by
foreclosure of the mortgage or otherwise, upon the mortgagee's
request, Tenant will attorn to the mortgagee.
B. If a mortgagee of the Building requests modifications
to this Lease as a condition to disbursing any monies to be
secured by the mortgage, Xxxxxx agrees that within seven (7)
working days after request by the mortgagee, Xxxxxx will execute,
acknowledge and deliver to the mortgagee an agreement, in form
and substance satisfactory to the mortgagee, sworn to if
requested, evidencing such modifications, provided they do not
increase Tenant's obligations under this Lease or materially
adversely affect the leasehold interest created by this Lease.
X. Xxxxxx agrees that within seven (7) days after request
by any mortgagee of the Building, Xxxxxx will execute,
acknowledge and deliver to the mortgagee a notice in form
attached as Exhibit "E" or in a form and in substance
satisfactory to the mortgagee, sworn to if requested, setting
forth such information as the mortgagee may require with respect
to this Lease and/or the Premises. If for any reason Tenant does
not timely comply with the provisions of this paragraph, Tenant
will be deemed to be in default of this Lease without further
grace period to cure such default, and to have confirmed that
this Lease is in full force and effect with no defaults on the
part of either party and without any right of Tenant to offset,
deduct or withhold any Rent or Additional Rent.
32. NONDISTURBANCE AGREEMENT: From and after the date this
Lease is fully executed by the parties hereto, Landlord
covenants and agrees to use commercially reasonable efforts
to secure from Landlord's current and future lenders for the
benefit of Tenant, such lenders' standard nondisturbance
agreement(s) executed by Xxxxxx, which may include
provisions substantially similar to those set forth in
paragraph 30 above and also provisions whereby Tenant
attorns to such lender if such lender becomes the owner of
the Building.
33. SURRENDER OF PREMISES; HOLDING OVER:
____________________________________
X. Xxxxxx agrees to surrender the Premises to Landlord on
the Expiration Date (or sooner termination of the Lease Term
pursuant to other applicable provisions hereof) in as good
condition as they were at the commencement of Tenant's occupancy,
ordinary wear and tear, and damage by fire and windstorm
excepted. At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys and access cards to the
Premises and make known to Landlord the location and combinations
of all locks, safes and similar items.
B. In all events, Tenant will, prior to the Expiration
Date, promptly restore all damage caused in connection with any
removal of Xxxxxx's personal property. Tenant will pay to
Landlord, upon request, all damages that Landlord may suffer on
account of Xxxxxx's failure to surrender possession as and when
aforesaid and will indemnify Landlord against all liabilities,
costs and expenses (including all reasonable attorneys' fees and
costs if any) arising out of Tenant's delay in so delivering
possession, including, without limitation, claims of any
succeeding tenant.
C. Upon expiration of the Lease Term, Tenant will not be
required to remove from the Premises Building Standard items
installed by Landlord prior to Tenant's occupancy of the
Premises. However, should Tenant, prior to the expiration of the
Lease Term or during the Lease Term, install or cause to be
installed fixtures, trade fixtures or any tenant improvements in
excess of Building Standard, the cost of removal of same, upon
Landlord's election and notice to Tenant, shall be at Tenant's
sole cost and expense.
D. Without limiting Landlord's rights and remedies, if
Xxxxxx holds over in possession of the Premises beyond the
Expiration Date, during the holdover period Rent will accrue at
the monthly rate of double the amount of the Rent due and payable
for the last month of the Lease Term, or a pro rata share
thereof.
E. No offer of surrender of the Premises, by delivery to
Landlord or its agent of keys to the Premises or otherwise, will
be binding on Landlord unless accepted by Landlord, in writing,
specifying the effective surrender of the Premises.
25
F. No receipt of money by Landlord from Tenant after the
Expiration Date or the service of any notice of commencement of
any suit or final judgment for possession shall reinstate,
continue or extend the Lease Term, or affect any such notice,
demand, suit or judgment.
34. NO WAIVER; CUMULATIVE REMEDIES:
_______________________________
A. No waiver of any provision of this Lease by either
party will be deemed to imply or constitute a further waiver by
such party of the same or any other provision hereof. The rights
and remedies of Landlord under this Lease or otherwise are
cumulative and are not intended to be exclusive and the use of
one will not be taken to exclude or waive the use of another, and
Landlord will be entitled to pursue all rights and remedies
available to landlords under the laws of the State of Florida.
B. No receipt of money by Landlord from Tenant at any
time, or any act, or thing done by, Landlord or its agent shall
be deemed a release of Tenant from any liability whatsoever to
pay Rent, Overhead Rent, Additional Rent, or any other sums due
hereunder, unless such release is in writing, subscribed by a
duly authorized officer or agent of Landlord and refers expressly
to this paragraph 34. Any payment by Tenant or receipt by
Landlord of less than the entire amount due at such time shall be
deemed to be on account of the earliest sum due. No endorsement
or statement on any check or any letter accompanying any check or
payment shall be deemed an accord and satisfaction. In the case
of such a partial payment or endorsement, Landlord may accept
such payment, check or letter without prejudice to its right to
collect all remaining sums due and pursue all of its remedies
under the Lease.
35. WAIVER OF RIGHT TO JURY TRIAL:
______________________________
To the extent permitted by law, Tenant hereby expressly
waives: (a) the right to a jury trial in any action or
proceeding regarding a monetary default by Xxxxxx, and/or
Landlord's right to possession of the Premises, (b) in any action
or proceeding by Landlord for monies owed by Xxxxxx and/or
possession of the Premises, Tenant waives the right to interpose
any cross-claim or counter-claim (except a compulsory cross-claim
or counter-claim if the same is provided for pursuant to Florida
law), and (c) any and all contractual and statutory provisions
for and any right to an award of attorneys' fees, costs and
expenses from Landlord. However, the foregoing provisions of
this paragraph 35 shall not prohibit Tenant from bringing a
separate lawsuit against Landlord, subject to the other
provisions of this Lease.
36. CONSENTS AND APPROVALS:
_______________________
If Tenant requests Xxxxxxxx's consent or approval under this
Lease, and if in connection with such requests Landlord deems it
necessary or advisable to seek the advice of its attorneys, archi
tects and/or other experts, then Tenant shall pay the actual fee
of Landlord's attorneys, architects and/or other experts in
connection with the consideration of such request and/or the
preparation of any documents pertaining thereto and all costs
associated therewith.
26
37. RULES AND REGULATIONS:
______________________
Xxxxxx agrees to abide by all rules and regulations ("Rules
and Regulations") attached hereto as Exhibit "C" and incorporated
herein by this reference, as amended and supplemented from time
to time by Landlord in Landlord's commercially reasonable
discretion. Landlord will not be liable to Tenant for violation
of the same or any other act or omission by any other tenant.
38. SIGNS:
______
A. Landlord shall have the right to install signs on the
interior or exterior of the Building and exterior of the Premises
and/or change the Building's name or street address, provided
such signs do not materially obstruct the visibility of Tenant's
sign on the exterior or interior of the Premises or the Building,
all without incurring any liability to Tenant. Tenant shall not
install, inscribe, paint or otherwise attach any sign, awning,
advertisement or notice on any part of the outside of the
Premises or the Building or to any part of the inside of the
Premises that is visible from outside of the Premises or which is
visible to or from any Common Areas (except as approved by
Landlord) without the prior written consent of Landlord, which
consent may be withheld in Landlord's sole and absolute
discretion. Any permitted sign shall comply with the require
ments of any governmental authority having jurisdiction over the
Building. Tenant shall, at its own expense, maintain all
permitted signs and shall, on or before the Expiration Date, at
its own expense, remove all such permitted signs and repair any
damage caused by such removal. Landlord shall have the right to
remove all non-permitted signs without notice to Tenant and at
the expense of Tenant.
B. Landlord shall provide a directory in the Building with
names of tenants of the Building. The design, form and location
of the directory and Tenant's space therein shall be in
Landlord's sole and absolute discretion. Any revision required
by Tenant in any directory listing(s) will be made by Landlord,
at Tenant's expense, within a reasonable time after notice from
Tenant of the change making the revision necessary. Tenant shall
be responsible for the cost of any signage, if available in
Landlord's sole and absolute discretion, in excess of that
required to list only Tenant's name in the directory.
C. In addition to the foregoing signage, Landlord has
agreed that Tenant may place signage on the Building's exterior
first or second floor street level facades at the Laura and
Xxxxxxx Street corners. Additionally, Landlord may place an
awning above the main double door entrance to the Building and an
awning on the exterior first floor street level facade of the
Building in an area that does not obscure Tenant's signage. In
the event the Landlord installs such awnings, Tenant shall, in
addition to the other signage rights granted herein, have the
right to place lettering on such awning stating Tenant's name or
the name of the building thereon. The awning and other signage
referred to in this Subparagraph C may read "The Jacksonville
Bank Building" or "The Jacksonville Bank" at Tenant's discretion.
Such signs shall be subject to Xxxxxxxx's approval as to design,
material and installation, with such approval not to be
unreasonably withheld, delayed or conditioned, and must comply
with all applicable sign ordinances. All costs associated with
exterior signage and adding lettering to any awnings installed by
Landlord will be at Tenant's sole expense. During the entire
Lease Term and any extension or renewal thereof, provided Tenant
continues to lease all of the Premises, Landlord shall not rename
the Building or provide any other party other than Tenant the
right to name the Building without the prior written consent of
Xxxxxx. Such prohibition shall not operate to prevent Landlord
from granting roof signage rights to a third party.
X. Xxxxxxxx agrees that provided Xxxxxx has not been in
material default hereunder beyond any applicable cure period and
is then leasing a minimum of 25,000 rentable square feet in the
Building, Tenant shall have a one time right of refusal to place
a sign on the roof (the "Roof Sign") of the Building if Landlord
offers such signage, which right of first refusal shall be on the
same terms and conditions offered by Xxxxxxxx and agreed to in
writing by a bona fide third party tenant or prospective tenant
of not less than
27
25,000 rentable square feet in the Building. Landlord shall
provide the terms of such offer to Tenant for review and Tenant
shall then have (10) days after receipt to either accept or
reject such offer. If Tenant elects to accept such offer,
Tenant will not be required to modify this Lease other than to
incorporate the material terms of the offer. In no event will
Tenant be required to alter the size or layout of the Premises
or increase the Rent (other than to assume payment obligations
directly attributable to the Roof Sign rights being offered) as
a condition to accepting such offer. The Roof Sign shall be
subject to Landlord's approval as to design, material and
installation, and may read either "The Jacksonville Bank Building"
or "The Jacksonville Bank", with such approval not to be
unreasonably withheld, delayed or conditioned, and must comply
with all applicable sign ordinances. Further, Landlord agrees
that so long as Tenant is not in default and continues to lease
not less than 12,000 rentable square feet, including Suite 120 as
a banking operation, Landlord shall not grant roof signage to
another bank, credit union or savings and loan association.
Provided further, that Xxxxxxxx agrees that so long as Tenant has
not been in material default hereunder, which was not promptly
cured, and continues to lease not less than 12,000 rentable
square fee, including Suite 120 as a banking operation, Landlord
shall not lease any portion of the Building to any bank, credit
union, or savings and loan association for use as a retail
banking operation.
E. Notwithstanding any term of this Lease to the contrary,
Xxxxxx's rights arising pursuant to subparagraphs C and D above,
are personal to The Jacksonville Bank, and shall not be
assignable to any entity except a bank, savings and loan
association or credit union who is the corporate successor by
acquisition, merger or reorganization to The Jacksonville Bank.
39. LIMITED AUTHORITY OF LEASING AGENT:
___________________________________
Submission of this instrument for examination does not
constitute an offer, right of first refusal, reservation of or
option for the Premises or any other space or premises in, on or
about the Building, but only a solicitation of an offer to lease
from Tenant. Until Landlord has approved, by execution of this
Lease, a specific offer by a prospective tenant to lease,
Landlord's authorized leasing agent or Managing Agent shall have
no authority to execute or deliver this instrument or to make
offers binding upon Landlord. This instrument becomes effective
as a Lease only upon lawful execution and delivery by both Xxxxxx
and Landlord or Landlord's authorized agent.
40. SUCCESSORS AND ASSIGNS:
_______________________
This Lease will be binding upon and inure to the benefit of
the respective heirs, personal and legal representatives,
successors and permitted assigns of the parties hereto.
41. QUIET ENJOYMENT:
________________
In accordance with and subject to the terms and provisions
of this Lease, Landlord warrants that it has full right to
execute and to perform under this Lease and to grant the estate
demised and that Tenant, upon Xxxxxx's payment of the required
Rent, Overhead Rent and Additional Rent and performance of all of
the terms, conditions, covenants, and agreements contained in
this Lease, shall have the right to peaceably and quietly have,
hold and enjoy the Premises during the full Lease Term.
42. ENTIRE AGREEMENT:
_________________
This Lease contains the entire agreement between the parties
hereto regarding the subject matters referenced herein and
supersedes all prior oral and written agreements between them
regarding such matters. This Lease may be modified only by an
agreement in writing dated and signed by Xxxxxxxx and Tenant
after the date hereof. For the purposes of this Lease only, if
Landlord executes a written modification of this Lease, Landlord
shall be deemed to have received any required lender's or
mortgagee's approval of such modification.
28
43. HAZARDOUS SUBSTANCES:
_____________________
A. Tenant shall not cause or permit any Hazardous
Substances, as defined in paragraph 43E below, to be brought upon
or kept or used in or about the Premises or the Building by
Tenant, its agents, employees, contractors, or invitees, unless
(a) such Hazardous Substances are necessary for Tenant's business
(and such business is a permitted use under paragraph 5 of this
Lease) and (b) Tenant first obtains the written consent of
Landlord.
B. Tenant shall at all times and in all respects comply
with all local, state, and federal laws, ordinances, regulations,
and orders (collectively, "Hazardous Substances Laws") relating
to industrial hygiene, environmental protection, or the use,
analysis, generation, manufacture, storage, disposal, or
transportation of any Hazardous Substances.
C. Upon expiration or earlier termination of the term of
the Lease, Tenant shall cause all Hazardous Substances to be
removed from the Premises (except such Hazardous Substances, if
any, as were located in the Premises prior to the commencement of
Tenant's occupancy thereof and except such Hazardous Substances,
if any, that are or become located in the Premises as a result of
the acts or omissions of any party other than Tenant or Tenant's
agents, employees and independent contractors)and to be
transported for use, storage, or disposal in accordance and
compliance with all applicable Hazardous Substances Laws;
provided, however, that Tenant shall not take any remedial action
in response to the presence of any Hazardous Substances in or
about the Premises or the Building, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any
claims relating to any Hazardous Substances in any way connected
with the Premises, or the Building, without first notifying
Landlord of Tenant's intention to do so and affording Landlord
ample opportunity to appear, intervene, or otherwise
appropriately assert and protect Xxxxxxxx's interest with respect
thereto.
D. If at any time Tenant shall become aware, or have
reasonable cause to believe, that any Hazardous Substance has
come to be located within the Building, Tenant shall, immediately
upon discovering such presence or suspected presence of the
Hazardous Substance, give written notice of that condition to
Landlord. In addition, Tenant shall immediately notify Landlord
in writing of (i) any enforcement, cleanup, removal, or other
governmental or regulatory action instituted, completed, or
threatened pursuant to any Hazardous Substances Laws, (ii) any
claim made or threatened by any person, governmental entity or
agency, or any entity against Tenant, the Premises, or the
Building relating to damage, contribution, cost recovery, duty,
cleanup report, contamination, compensation, loss, or injury
resulting from or claimed to result from any Hazardous
Substances, and (iii) any reports made to any local, state, or
federal environmental agency arising out of or in connection with
any Hazardous Substances in or removed from the Premises, or the
Building including any complaints, notices, warnings, or asserted
violations in connection therewith. Tenant shall also supply to
Landlord as promptly as possible, and in any event within five
(5) business days after Xxxxxx first receives or sends the same,
copies of all claims, reports, complaints, notices, warnings, or
asserted violations relating in any way to the Premises, the
Building or Tenant's use thereof. Tenant shall promptly deliver
to Landlord copies of hazardous waste manifests reflecting the
legal and proper disposal of all Hazardous Substances removed
from the Premises or the Building.
E. For purposes of this Lease, the term "Hazardous
Substances" means and includes without limitations: (i) any
toxic or hazardous substances or materials, petroleum or other
pollutants and substances, whether or not naturally occurring,
including without limitation, asbestos, polychlorinated
biphenyls, radon gas and methane gas, generated, treated, stored
or disposed of, or otherwise deposited in or located on or under
the property on which the Building is located, including without
limitation, the surface and subsurface waters of the property on
which the Building is located; and (ii) any substance or material
regulated by the: (aa) the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 U.S.C. 69901 et seq., or any similar
state law or local ordinance; (bb)
29
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. 9601-9657, or any similar
state law or local ordinance or any other environmental law;
(cc) Federal Water Pollution Control Act, 33 U.S. C. 1251 et
seq., or (dd) the Clean Air Act, 42 U.S.C. 7401 et seq., or
any similar state law or local ordinance; (ee) Chapter 403,
Florida Statutes and any substance defined therein as a
"Hazardous Substance" or "Hazardous Waste", or (iii) any
substances or conditions in, on or under the Building which may
support a claim or cause of action under RCRA, CERCLA or any
other federal, state or local environmental regulatory
requirement, law, act, ordinance, rule or regulation, including
the presence of any underground storage tanks or underground
deposits located on the Building.
F. Tenant shall indemnify, defend (by counsel acceptance
to Landlord), protect, and hold harmless Landlord, and each of
Landlord's partners, directors, officers, employees, agents,
Managing Agents, attorneys, successors, and assigns, from and
against any and all claims, liabilities, penalties, fines,
judgments, forfeitures, losses (including, without limitation,
diminution in the value of the Premises or the Building, damages
for the loss or restriction on use of rentable or usable space or
of any amenity of the Premises, or the Building), costs or
expenses (including attorneys' fees, consultant fees, and expert
fees) for the death of or injury to any person or damage to any
property whatsoever, arising from or caused in whole or in part,
directly or indirectly, by (A) the presence in, on, under, or
about the Premises or the Building, or any discharge or release
in or from the Premises or the Building of any Hazardous
Substances (except such Hazardous Substances, if any, as were
located in the Premises prior to the commencement of Tenant's
occupancy thereof and except such Hazardous Substances, if any,
that are or became located in the Premises as a result of the
acts or omissions of any party other than Tenant or Tenant's
agents, employees or independent contractors) or Tenant's use,
analysis, storage, transportation, disposal, release, threatened
release, discharge, or generation of Hazardous Substances to, in,
on, under, about, or from the Premises or the Building, or (B)
Tenant's failure to comply with any Hazardous Substances Law.
Tenant's obligations under this paragraph shall include, without
limitation, and whether foreseeable or unforeseeable, any and all
costs incurred in connection with any investigation of site
conditions, and any and all costs of any required or necessary
repair, cleanup, detoxification, or decontamination of the
Premises or the Building (including, without limitation, the soil
and ground water on or under the Building), and the preparation
and implementation of any closure, remedial action, or other
required investigations, reports or plans in connection
therewith. Tenant's obligations under this paragraph shall
survive the expiration or earlier termination of the term of the
Lease. For purposes of the release and indemnity provisions
hereof, any act or omissions of Tenant, or by Tenant's Agents,
employees, agents, assignees, contractors, or subcontractors of
Tenant or others acting for or on behalf of Tenant (whether or
not they are negligent, intentional, willful, or unlawful), shall
be strictly attributable to Tenant.
44. MISCELLANEOUS:
______________
A. If Tenant has a Lease for other space in the Building,
any default by Tenant under such Lease will constitute a default
hereunder.
B. If any term or condition of this Lease or the
application thereof to any person or circumstance is, to any
extent, invalid or unenforceable, the remainder of this Lease, or
the application of such term or condition to persons or circum
stances other than those as to which it is held invalid or unen
forceable, is not to be affected thereby and each term and condi
tion of this Lease is to be valid and enforceable to the fullest
extent permitted by law. This Lease will be construed in accord
ance with the laws of the State of Florida.
X. Xxxxxx acknowledges that it has not relied upon any
statement, representation, prior or contemporaneous written or
oral promises, agreements or warranties by or from Landlord, the
Managing Agent or any other person or entity, except such as are
expressly set forth herein, and agrees that all of the terms and
conditions of all agreements in regard to the Premises are set
forth fully herein.
30
X. Xxxxxx will pay before delinquency all taxes assessed
during the Lease Term against any occupancy interest of Tenant in
the Premises or personal property of any kind owned by or placed
in, upon or about the Premises by Xxxxxx.
E. If Tenant, with Xxxxxxxx's consent, occupies the
Premises or any part thereof prior to the beginning of the Lease
Term, all provisions of this Lease will be in full force and
effect commencing upon such occupancy, and Rent and Additional
Rent, where applicable, for such period will be paid by Tenant at
the same rate herein specified.
F. Each Party represents and warrants that it has not
dealt with any agent or broker in connection with this transac
tion except Xxxxxxx Commercial Real Estate, Inc. Landlord shall
be solely responsible for any agency or commission fee due
Xxxxxxx Commercial Real Estate, Inc. arising out of this lease
transaction. If either parties' representation and warranty
proves to be untrue, such party will indemnify the other party
against all resulting liabilities, costs, expenses, claims,
demands and causes of action, including reasonable attorneys'
fees and costs through all appellate actions and proceedings, if
any. The foregoing will survive the expiration of the Lease
Term.
G. Neither this Lease nor any memorandum hereof will be
recorded by Xxxxxx.
X. XXXXXXX.
________
I. All Exhibits, Addenda and Work Letter (if applicable)
referenced herein or attached hereto form a part of this Lease
and are incorporated into the Lease by this reference.
J. Whenever in this Lease the context allows, the word
"including" will be deemed to mean "including without
limitation," words of gender shall be construed to include any
other gender, words in the singular number shall be construed to
include the plural unless the context otherwise requires, and all
pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular or plural as the
identity of the person, persons or entity may require.
K. This Lease does not create, nor will Tenant have, any
express or implied easement for or other rights to air, light or
view over or about the Building or any part thereof.
L. Landlord reserves the right to use, install, monitor,
and repair pipes, ducts and conduits within the walls, columns,
and ceilings of the Premises.
M. Any acts to be performed by Landlord under or in
connection with this Lease may be delegated by Landlord to its
Managing Agent or other authorized person or firm.
N. It is acknowledged that both parties hereto have
contributed substantially to the content of this Lease.
Accordingly, this Lease shall not be more strictly construed
against either party hereto by reason of the fact that one party
may have drafted or prepared any or all of the terms and
provisions hereof.
O. Landlord and Tenant acknowledge that the terms and
provisions of this Lease have been negotiated based upon a
variety of factors, occurring at a coincident point in time,
including, but not limited to: (i) the individual principals
involved and the financial strength of Tenant, (ii) the nature of
Tenant's business and use of the Premises, (iii) the current
leasing market place and the economic conditions affecting rental
rates, (iv) the present and projected tenant mix of the Building,
and (v) the projected juxtaposition of tenants on the floor(s)
upon which the Premises are located and the floors within the
Building. Therefore, recognizing the totality, uniqueness,
complexity and interrelation of the aforementioned factors, the
Tenant agrees to use its best efforts not to disseminate in any
manner whatsoever (whether by word of mouth, mechanical
reproduction, physical tender or by any manner of visual or aural
transmission or review), the terms and conditions of the Lease to
third parties who could in any way be considered presently or in
31
the future as prospective tenants for this or any other leasehold
property with which Landlord may be involved.
P. If more than one person or entity is named herein as
Tenant, their liability hereunder will be joint and several.
Q. Landlord has made no inquiries about and makes no
representations (express or implied) concerning whether Xxxxxx's
proposed use of the Premises is permitted under applicable law,
including applicable zoning law. In the event Xxxxxx's proposed
use be prohibited, Tenant shall be obligated to comply with
applicable law and this Lease shall nevertheless remain in full
force and effect.
X. Xxxxxxxx may from time to time employ or contract with
one or more individuals or entities to act on behalf of Landlord
in the management, operation and maintenance of the Building.
Such individuals or entities shall herein be referred to as the
"Managing Agent" or "Managing Agents" of Landlord. In all
instances in which Tenant herein agrees to indemnify or hold
Landlord harmless, or to provide insurance in favor of Landlord,
or to waive or release subrogation rights, the term Landlord
shall be deemed to include the past and present Managing Agents
and their officers, directors, partners, employees and agents.
S. If it shall be necessary for either party to this Lease
to bring suit to enforce any provision hereof or for damages on
account of any breach of this Lease, the prevailing party on any
issue in any such litigation and any appeals therefrom shall be
entitled to recover from the other party, in addition to any
damages or other relief granted as a result of such litigation,
all costs and expenses of such litigation and a reasonable
attorneys' fee as fixed by the court.
T. Nothing herein shall create any relationship between
the Landlord and Tenant other than that of Landlord and Xxxxxx.
It is acknowledged and agreed that Xxxxxxxx does not in any way
or for any purpose become a partner of Tenant in the conduct of
Tenant's business or a joint venturer or a member of a joint or
common enterprise with Tenant.
U. If Tenant is a corporation, partnership or any other
form of business association or entity, Tenant is duly formed and
in good standing, and has full corporate or partnership power and
authority, as the case may be, to enter into this lease and has
taken all corporate or partnership action, as the case may be,
necessary to carry out the transaction contemplated herein, so
that when executed, this lease constitutes a valid and binding
obligation enforceable in accordance with its terms. Tenant
shall provide Landlord with corporate resolutions or other proof
in a form acceptable to Landlord, authorizing the execution of
this lease at the time of such execution.
V. Except as otherwise expressly provided herein, this
Lease and the obligations of Tenant to pay Rent hereunder and
perform all of the other covenants, agreements, terms, provisions
and conditions hereunder on the part of Tenant to be performed
shall in no way be affected, impaired or excused because Landlord
is unable to fulfill any of its obligations under this Lease, if
Landlord is prevented or delayed from so doing by reason of any
cause beyond Landlord's reasonable control, excepting the
financial condition of Landlord, including, but not limited to
Acts of God, strikes, labor troubles, shortage of materials,
governmental preemption in connection with a national emergency
or by reason of any rule, order or regulations of any
governmental agency or by reason of war, hostilities or similar
emergency.
W. Time is of the essence of each provision of this Lease.
X. Tenant, for itself and for all persons claiming by,
through or under it, hereby expressly waives any and all rights
which are or may be conferred upon Tenant by any present or
future law to redeem the Premises.
32
Y. The venue of any suit or proceeding brought for the
enforcement of or otherwise with respect to this Lease shall
always be lodged in the State Courts in and for Xxxxx County,
Florida regardless of whether, under any applicable principle of
law, venue may also be properly lodged in the courts of any other
Federal, State or County jurisdiction, or such other venue within
the State of Florida as may be specified by Landlord.
Z. RADON GAS NOTIFICATION.
In accordance with the requirements of Florida Statutes
Section 404.056(8), the following notice is hereby given:
RADON GAS: Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your
County Public Health Unit.
33
IN WITNESS WHEREOF, the parties have signed and delivered
this Lease as of the day and year first above written.
LANDLORD:
_______________________________ ABS XXXXX STREET, LLC,
Print Name:____________________ a Florida limited
liability company
_______________________________ By:___________________________
Print Name:____________________ Xxxxxxx Xxxxxxx
Witnesses Its: President and General
Manager
"Landlord"
________________________________ THE JACKSONVILLE BANK,
Print Name:_____________________ a Florida banking corporation
________________________________ By:__________________________
Print Name:_____________________ Xxxxxxx X. Xxxxx, III
Witnesses As its: President and Chief
Executive Officer
"Tenant"
34
EXHIBIT "A"
LEGAL DESCRIPTION/FLOOR PLAN
The East forty-six (46) feet of Lot 2 and all of Lot 3,
Block 37, according to Harts Map of the City of
Jacksonville, Xxxxx County, Florida.
35
EXHIBIT "B"
___________
WORK LETTER AGREEMENT
_____________________
THIS WORK LETTER AGREEMENT (this "Agreement") is made
and entered into this ____ day of March, 2004, between ABS XXXXX
STREET, LLC, a Florida limited liability company ("Landlord") and
THE JACKSONVILLE BANK, a Florida banking corporation ("Tenant").
In the event of any inconsistencies between this Agreement and
the Lease dated concurrently herewith to which this Agreement is
attached as Exhibit "B", this Agreement shall control.
Capitalized terms used in this Agreement shall, unless otherwise
specifically set forth herein, have the same meanings as in the
Lease.
W I T N E S S E T H:
WHEREAS, the Landlord and Xxxxxx have executed a Lease
this date and, in connection therewith, are entering into this
Agreement for the construction of certain leasehold improvements
of and to the Premises referenced in the Lease;
WHEREAS, (i) Tenant will employ a general contractor
reasonably acceptable to Landlord to do all work referenced
herein in accordance with the terms and provisions hereof; and
WHEREAS, the parties agree and acknowledge that, for
purposes of this Agreement only, the Premises contain usable (as
opposed to rentable as referred to in the Lease) square feet of
space. Nothing in this Agreement, however, shall be deemed to
modify or amend the provisions of the Lease dealing with the net
rentable square footage of the Premises or the Building.
NOW, THEREFORE, for One Dollar ($1.00) and other good
and valuable considerations, receipt and adequacy of which is
hereby acknowledged, Landlord and Tenant agree as follows:
SECTION 1
RECITALS
_________
1.01 Landlord and Xxxxxx agree to the recitals set
forth above and acknowledge that each of same is true
and correct and by this reference is hereby
incorporated into this Agreement.
SECTION 2
LANDLORD'S STANDARD WORK
________________________
2.01 Notwithstanding anything contained in this
Agreement to the contrary, for the purposes hereof,
there shall be no "Landlord's Standard Work" and all
work to be performed hereunder shall be considered
"Tenant's Non-Standard Work". Provided, however,
Landlord shall be responsible for the build-out of the
Common Areas and corridors located on the 10th floor
adjacent to the 10th floor portion of the Premises in a
manner in keeping with other first class office
buildings located in the greater Jacksonville, Florida
area. Xxxxxxxx's build-out of said Common Areas shall
be completed concurrently with the final completion of
Tenant's Non-Standard Work.
SECTION 3
TENANT'S NON-STANDARD WORK (NON-BUILDING STANDARD)
__________________________________________________
3.01 Deleted.
Exhibit B (Page 1)
3.02 Tenant shall, in accordance with this Agreement,
install the Tenant's Non-Standard Work.
SECTION 4
RESPONSIBILITIES OF LANDLORD AND TENANT
_______________________________________
4.01 Tenant has provided or will provide Landlord with
all necessary information, including such information
relating to Tenant's Non-Standard Work, to enable
Landlord to review the proposed space plan for the
Premises. The space plan willset forth the conceptual
site plan for the Premises. Landlord will promptly
review the space plan and provide comments or approval
to Tenant within five (5) business days of the receipt
thereof. Tenant shall promptly incorporate or address
Landlord's reasonable comments and revise the space
plan accordingly. Tenant shall resubmit the revised
space plan to Landlord for review. The parties will
act in good faith to resolve any issues with respect to
said plans. The cost of producing the space plan and
any revisions thereof, if reasonably necessary, shall
be borne by Tenant. Subsequent space planning and the
cost of producing all additional plans, specifications
and cost estimates as may be required in this Agreement
shall be paid by Tenant. The approved space plan shall
form the basis for completion of the Final Working
Drawings, as hereinafter defined.
4.02 Based upon the approved space plans , Tenant shall
prepare a budget setting forth the cost of all of the
then identified work, the approved space plans and
budgets constituting the "Final Working Drawings". The
Final Working Drawings shall be sufficiently detailed
and in a form suitable for obtaining all necessary
permits from the City of Jacksonville to commence
construction of the "Improvements. The Final Working
Drawings will be approved by Landlord within five (5)
business days of the receipt thereof and initialed
thereon by both parties and will set forth, in addition
to other items, the quality and quantity of the
following:
4.02-1 Partitions, doors, electrical and telephone
outlets;
4.02-2 Equipment requiring electrical power, such as
copiers, appliances, word processors, computers,
and computer-related equipment;
4.02-3 Furniture, fixtures, including trade
fixtures, cabinets and counters;
4.02-4 Lighting;
4.02-5 Plumbing fixtures;
4.02-6 Special finishes to floors, walls and
ceilings; and
4.02-7 Special mechanical, electrical, or structural
requirements, special features, facilities or
additions.
SECTION 5
FINANCIAL
_________
5.01 As long as Tenant has duly kept and performed all
terms and conditions to be kept and performed by Tenant
under the Lease, Landlord agrees to expend $20.00 per
useable square foot as a Tenant build-out allowance,
not to exceed a total to $209,620.00.
5.02 If Tenant's Non-Standard Work requires or will
require, pursuant to the Final Working Drawings,
expenditures for installation and completion in excess
of the amount agreed to be contributed by Landlord set
forth in Section 5.01 above (the "Tenant's Extra Work")
Tenant will pay directly to the contractor performing
Tenant's Extra Work all costs related to Tenant's Extra
Work
Exhibit B (Page 2)
which exceeds the amount payable in Section 5.01
above, which will include, but not be limited to, the
following:
5.02-1 The cost of the professional services
(including services of architects, engineers and
consultants) required to incorporate Tenant's
Extra Work into the Final Working Drawings;
5.02-2 The cost of materials of Tenant's Work
materials and the cost of installing such
materials; and
5.02-3 The cost of any structural changes in the
Building.
5.03 Tenant shall pay all amounts due for the Tenant's
Extra Work and shall provide Landlord evidence of said
payments and copies of releases of lien and partial
releases of lien evidencing such payment. Landlord
shall disburse its allocated cost of construction
referenced in 5.01 above directly to Tenant either in
installments to pay for constructions costs on a
monthly basis contingent upon lien releases and prior
funding of all excess funds by Tenant or, at Tenant's
option, as a lump sum reimbursement after construction
is completed and all lien rights have been released.
5.04 If any payments due under this Agreement are not
paid within twenty (20) days after receipt of the
original billing, such non-payment shall be a default
under this Agreement and the Lease and the Landlord
shall have all remedies available under the Lease in
the event of default, including, but not limited to,
the stoppage of all work to be performed under this
Agreement. Should Landlord seek to stop work under
this Agreement due to a monetary default of Tenant
under this Agreement or the Lease, Tenant shall have no
set-off or abatement of Rent or Additional Rent under
the Lease and further Tenant shall make no claim
against Landlord for any damages whatsoever, actual or
consequential, including any claims or damages for
holdover rent of a prior tenancy or as a result of a
delay in taking occupancy of the Premises under the
Lease.
SECTION 6
CONSTRUCTION OF IMPROVEMENTS AND
LEASE COMMENCEMENT DATE
_______________________
6.01 Within five (5) days of completion and delivery of
the Final Working Drawings to Tenant, Landlord shall
give (or be deemed to have given) written authorization
to complete the Premises and install the Improvements
in accordance with the Final Working Drawings and
Tenant's contractor shall commence such work and
install the Improvements in accordance with the Fifnal
Work and Drawings. In the absence of such proper
authorization to complete, Tenant shall not be
obligated to commence work on the Premises, but may
elect to do so.
The parties estimate that the Premises will be
substantially completed on or before September 1, 2004
("Estimated Completion Date"), unless extended by other
provisions of this Agreement. Landlord shall not be
responsible for delays unless caused by Landlord.
During construction of the Premises, Tenant shall
promptly pay monthly for Improvements and installation
thereof as provided in Section 4 hereof. Final billing
shall be rendered and promptly payable upon acceptance
of the Premises by Tenant in accordance with the terms
of the Lease and this Agreement.
6.02 If Tenant shall require any changes, Tenant shall
request such change in writing to Landlord and such
request will be accompanied by all plans and
Exhibit B (Page 3)
specifications at Tenant's expense necessary to show
and explain changes from the approved Final Working
Drawings. Landlord shall have five (5) business days
to approve or disapprove of such changes.
6.03 (a) In the event the actual completion date
("Completion Date") should occur beyond the Estimated
Completion Date by a reason solely and directly
attributable to Landlord, then the actual Completion
Date and the Rent Commencement Date will be extended
one day for each day of such delay. However, if the
Rent Commencement Date is extended by any of the
provisions of this Section 6 Landlord shall have no
liability to Tenant or any other party for any of
Tenant's holdover rent in a prior tenancy or any other
liability whatsoever.
(b) In the event that the actual Completion Date
should occur beyond the Estimated Completion Date due
to causes beyond Landlord's control, including but not
limited to, those set out in Section 6.03(c) hereof,
then, again, one day shall be added to the actual
Completion Date and the Rent Commencement Date.
(c) Notwithstanding any provision of this Agreement to
the contrary, Landlord shall have no liability for
failure to complete the Improvements on the date
specified in any completion notice or on any date
specified in any estimate or schedule, if such date
cannot be met due to causes beyond the reasonable
control of Landlord, or if such delay includes, but is
not solely attributable to, in whole or in part, acts
of God, civil strife, riots, strikes, governmental
action, shortages of equipment or supplies.
6.04 (a) In the event the actual Completion Date
should occur beyond the Estimated Completion Date for
any reason attributable to Tenant, Xxxxxx's Contractor,
or Tenant's Agents, then no adjustment shall be made to
the Estimated Completion Date or the actual Completion
Date or Rent Commencement Date.
SECTION 7
SUBSTANTIAL COMPLETION AND OCCUPANCY
____________________________________
7.01 Substantial completion of the Improvements (the
"Completion Date") under this Agreement and the Lease,
including Landlord's Standard Work, Tenant's Non-
Standard Work and Tenant's Extra Work, will be deemed
to be the date that the Premises are substantially
complete and ready for occupancy by Xxxxxx, as
reasonably determined by Xxxxxx's architect
(notwithstanding that minor details of construction,
decoration or mechanical adjustment remain to be done,
which work will be set forth in a "Punch List" to be
attached to this Agreement at that time).
7.03 In the event that due to delays contemplated
hereunder the Completion Date will be delayed beyond
the Lease Commencement Date, (i) Tenant shall give to
Landlord written notice setting forth the proposed
Completion Date and the revised Lease Commencement Date
and revised Rent Commencement Date, if applicable, and
(ii) thereafter, Landlord and Tenant shall execute a
final Memorandum of Lease setting forth the aforesaid
dates and attaching same to the Lease.
SECTION 8
SPECIAL PROVISIONS
__________________
8.01 Landlord has agreed that Tenant shall utilize the
services of Xxxxxx's own general contractor, subject to
Landlord's reasonable approval. If Tenant utilizes
Xxxxxx's general contractor for completion of the
Landlord's and
Exhibit B (Page 4)
Xxxxxx's hereunder, such contractor shall be subject
to all terms and conditions of this Agreement, and
requirements of Landlord with respect to general
contractor's working in the Building, including
the provision of necessary insurance and where
appropriate, surety bonds.
8.02 Landlord has agreed that it shall assist Tenant in
providing input for Xxxxxx's preliminary space plan for
the Premises. Further, Landlord has given conceptual
approval to building modification necessary to create a
direct street entrance for Tenant's proposed banking
facility in Suite 120, a reconfiguration of the
Building's corner at Forsyth and Xxxxx Streets, and the
construction of an ATM accessible from outside the
Building at the Forsyth Street facade.
8.03 In the event that Tenant shall request that
Landlord provide a Tenant Improvement allowance in
excess of that set forth in Section 5.01 above,
Landlord is agreeable to considering a reasonable
increase of same, provided that the additional expenses
shall be amortized over the initial term of the Lease,
with Landlord requiring a 9.5% net annual return of
said additional funds.
8.04 Any systems or components installed by Tenant must
coordinate with Landlord's building systems (i.e.,
security and fire alarm, access systems, surveillance
system, and high efficiency lighting systems). Tenant
shall be responsible for sprinkler head turndown below
the ceiling and Tenant's HVAC distribution system (from
Landlord's terminal units provided at 1 per 1,000
usable square feet) as part of Tenant's build-out.
IN WITNESS WHEREOF, the parties have signed this
Agreement as of the day and year first above written.
LANDLORD:
ABS XXXXX STREET, LLC
a Florida limited liability
company
Print Name: By:___________________________
Xxxxxxx Xxxxxxx
Its: President and General
Manager
Print Name: [SEAL]
Witnesses
TENANT:
Print Name: THE JACKSONVILLE BANK,
a Florida banking
corporation
Print Name:
Witnesses By:__________________________
Xxxxxxx X. Xxxxx, III
Its: President and Chief
Executive Officer
[SEAL]
Exhibit B (Page 5)
EXHIBIT C
RULES AND REGULATIONS
_____________________
1. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors, and halls shall not
be obstructed or encumbered by any Tenant or used for any purpose
other than ingress and egress to and from the Premises.
2. No awnings or other projections shall be attached
to the outside walls of the Building without the prior written
consent of Landlord. No curtains, blinds, shades, or screens
shall be attached to or hung in, or used in connection with, any
window or door of the Premises, without the prior written consent
of Landlord. Such awnings, projections, curtains, blinds,
shades, screens, or other fixtures must be of a quality, type,
design, and color, and attached in the manner approved by
Landlord.
3. No sign, advertisement, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any Tenant
on any part of the outside of the Premises or Building or on the
inside of the Premises if the same can be seen from the outside
of the Premises without the prior written consent of Landlord
except that the name of Tenant may appear on the entrance door of
the Premises. In the event of a violation of the foregoing by
Tenant, 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 the
directory shall be inscribed, painted or affixed for each Tenant
by Landlord at the expense of such Tenant and shall be of a size
and style acceptable to the Landlord.
4. Tenant shall not occupy or permit any portion of
the Premises demised to it to be occupied as an office for a
public stenographer or typist, or as a xxxxxx or manicure shop,
or as an employment bureau. Tenant shall not engage or pay any
employees on the Premises, except those actually working for
Tenant at the Premises, nor advertise for labor giving an address
at the Premises. The Premises shall not be used for gambling,
lodging, or sleeping or for any immoral or illegal purposes. The
Premises shall not be used for the manufacture, storage, or sale
of merchandise, goods or property of any kind whatsoever.
5. The sashes, sash doors, skylights, windows, and
doors that reflect or admit light and air into the halls,
passageway or other public places in the Building shall not be
covered or obstructed by any Tenant nor shall any bottles,
parcels or other articles be placed on the window xxxxx. No
materials shall be placed in the corridors or vestibules nor
shall any articles obstruct any air conditioning supply or
exhaust vent.
6. The water and wash closets and other plumbing
fixtures shall not be used for any purposes other than those for
which they were constructed and no sweepings, rubbish, rags, or
other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures by Xxxxxx, its servants,
employees, agents, or licensees shall be borne by Tenant.
7. No Tenant shall mark, paint, drill into, or in any
way deface any part of the Premises or the Building of which they
form a part. No boring, cutting, or stringing of wires shall be
permitted, except with the prior written consent of Landlord, and
as it may direct. Should a Tenant require telegraphic,
telephonic, annunciator or other communication service, Landlord
will direct the electricians where and how wires are to be
introduced and placed, and none shall be introduced or placed
except as Landlord shall direct. Electric current shall not be
used for power or heating without Landlord's prior written
permission. Neither Tenant nor Tenant's Agents including, but
not limited to, electrical repairmen and telephone installers,
shall lift, remove or in any way alter or disturb any of the
interior ceiling materials of the Premises or Building, nor shall
any of same have any access whatsoever to the area above the
interior ceiling of the Premises or the
Exhibit C (Page 1)
Building except with the prior written consent of Landlord
and in accordance with guidelines established by Landlord.
No antennas shall be permitted.
8. No bicycles, vehicles, or animals of any kind
shall be brought into or kept in or about the Premises, and no
cooking shall be done or permitted by any Tenant on said
Premises. No Tenant shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the
Premises. No spaces heaters are permitted.
9. Landlord shall have the right to retain a passkey
and to enter the Premises at any time, to examine same or to make
such alterations and repairs as may be deemed necessary, or to
exhibit same to prospective Tenants during normal Business Hours.
10. No Tenant shall make, or permit to be made, any
unseemly or disturbing noises or disturb or interfere with
occupants of this or neighboring buildings or premises or those
having business with them, whether by the use of any musical
instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. No Tenant shall throw anything out
of doors, windows, or skylights, or down the passageways.
11. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows by any Tenant, nor shall
any changes be made in existing locks or the mechanism thereof.
Each Tenant must, upon the termination of its tenancy, restore to
the Landlord all keys of offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant. Tenant
shall pay to the Landlord the cost of any lost keys.
12. Tenant will refer all contractors, contractors'
representatives and installation technicians, rendering any
service to Tenant, to Landlord for Landlord's supervision,
approval, and control before performance of any contractual
service. This provision shall apply to all work performed in the
Building, including installations of telephones, telegraph
equipment, electrical devices and attachments, and installations
of any nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other physical portion of the
Building.
13. All removals, or the carrying in or out of any
safes, freight, furniture or other bulky matter or heavy articles
of any description must take place during the hours which the
Landlord or its agent may determine from time to time. All such
movement shall be under the supervision of Xxxxxxxx and in the
manner agreed between Xxxxxx and Landlord by pre-arrangement
before performance. Such pre-arrangements initiated by Xxxxxx
will include determination by Landlord, subject to its decision
and control, of the time, method, and routing of movement and
limitations imposed by safety or other concerns which may
prohibit any article, equipment or any other item from being
brought into the Building. Landlord reserves the right to
prescribe the weight and position of all safes, which must be
placed upon 2-inch thick plank strips to distribute the weight.
Any damage done to the Building or to other Tenants or to other
persons in bringing in or removing safes, furniture or other
bulky or heavy articles shall be paid for by the Tenant.
14. Tenant agrees that all machines or machinery
placed in the Premises by Tenant will be erected and placed so as
to prevent any vibration or annoyance to any other Tenants in the
Building of which the Premises are a part, and it is agreed that
upon written request of Landlord, Tenant will, within ten (10)
days after the mailing of such notice, provide approved settings
for the absorbing, preventing, or decreasing of noise from any or
all machines or machinery placed in the Premises.
15. Each Tenant shall, at its expense, provide
artificial light for the employees of the Landlord while
providing janitor service or other cleaning, and in making
repairs or alterations in said Premises.
16. The requirements of Tenant will be attended to
only upon written application at the office of the Building.
Employees of Landlord shall not receive or carry
Exhibit C Page 2)
messages for orto any Tenant or other person nor contract
with or render free or paid services to any Tenant or Tenant's
Agents, employees, or invitees.
17. Canvassing, soliciting, and peddling in the
Building is prohibited and each Tenant shall cooperate to prevent
the same.
18. Tenant shall have the free use of the mail chutes,
if any, installed in the Building, but the Landlord in no wise
guarantees efficiency of the said mail chutes and shall be in a
no wise responsible for any damage or delay which may arise from
use thereof.
19. Landlord will not be responsible for lost, stolen,
or damaged property, equipment, money, or jewelry from Tenant's
area or public rooms regardless of whether such loss occurs when
said area is locked against entry or not.
20. Landlord specifically reserves the right to refuse
admittance to the Building from 7 p.m. to 7 a.m. daily, or on
Saturdays, Sundays or legal holidays, to any person or persons
who cannot furnish satisfactory identification, or to any person
or persons who, for any other reason in the Landlord's judgment,
should be denied access to the Premises. Landlord, for the
protection of the Tenant and Xxxxxx's effects, may prescribe
hours and intervals during the night and on Saturdays, Sundays
and holidays, when all persons entering and departing the
Building shall be required to enter their names, the offices to
which they are going or from which they are leaving, and the time
of entrance and departure, in a register provided for that
purpose by the Landlord.
21. No Tenant, nor any of Tenant's Agents, shall at
any time bring or keep upon the Premises any inflammable,
combustible, or explosive fluid, chemical, or substance.
22. Landlord reserves the right to make such other and
further reasonable rules and regulations as in its judgment may
from time to time be necessary for the safety, care and
cleanliness of the Premises, and for the preservation of good
order therein and any such other or further rules and
regulations, shall be binding upon the parties hereto with the
same force and effect as if they had been inserted herein at the
time of the execution hereof.
Exhibit C (Page 3)
EXHIBIT "D"
TERM COMMENCEMENT AND EXPIRATION AGREEMENT
THIS AGREEMENT, made this _______ day of ____________, 20__,
by and between ABS XXXXX STREET, LLC, a Florida limited liability
company (herein "LANDLORD") and THE JACKSONVILLE BANK, a Florida
banking corporation (herein "Tenant").
W I T N E S S E T H :
WHEREAS, LANDLORD and Xxxxxx have entered into that certain
Lease dated _______________, 2004 ("Lease") for space within the
100 Xxxxx Street located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000; and
WHEREAS, LANDLORD and Tenant wish to set forth their
agreements as to the commencement of the Term of this Lease.
NOW, THEREFORE, in consideration of the Premises as
described in this Lease and the covenants set forth therein,
LANDLORD and Xxxxxx agree as follows:
1. The Lease Commencement Date was ______________, 200__.
2. The Expiration Date of this Lease shall be
______________, 200__.
3. Pursuant to Rider C. __ Tenant has __________ (__)
Extension Options of ______ (__) years each.
4. The Rent Commencement Date was ______________, 200__.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
_______________________________ ABS XXXXX STREET, LLC,
Print Name:____________________ a Florida limited
liability company
_______________________________ By:___________________________
Print Name:____________________ Xxxxxxx Xxxxxxx
Witnesses Its: President and General
Manager
"Landlord"
_______________________________ THE JACKSONVILLE BANK,
Print Name:____________________ a Florida banking
corporation
_______________________________ By:_____________________________
Print Name:____________________ Xxxxxxx X. Xxxxx, III
Witnesses As its: President and Chief
Executive Officer
"Tenant"
EXHIBIT "E"
NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT
_______________________________________________________
___________, ____
To: ____________________
____________________
____________________
Re: Lease dated _______________, 2004 (together with all
amendments thereto the "Lease")
Landlord: ABS XXXXX STREET, LLC ("Landlord")
Tenant: THE JACKSONVILLE BANK ("Tenant")
Premises: Suites 120 and 0000, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx Xxxxxxx ("Premises")
Gentlemen:
We are the current Tenant under the Lease. We give you this
certificate to permit you to rely on it as conclusive evidence of
the matters stated below. We warrant and represent to you as
follows:
1. Either: [ ] Attached hereto is a true, correct, and
complete copy of the Lease, including all assignments,
amendments, supplements, and modifications thereto, if any,
or [ ] the Lease is a verbal month-to-month lease. If
written, the Lease has not been otherwise assigned,
amended, supplemented or modified as of the date hereof
and is the only lease between the Tenant and the
Landlord affecting the premises.
2. Summary of Lease Terms:
Lease Term Commenced:
________________________
Lease Term Expires:
________________________
Current Monthly Base Rent:
$_______________________
Security Deposit:
$_______________________
Monthly Base Rent Paid Through: ________________________
Prepaid Rental for and in the Amount of: $______________________
_______________________________
NOTE: Tenant shall disclose in this form upon execution hereof
any factual matter contained herein which is otherwise inaccurate
in the form.
3. We are in sole possession of and are occupying the Premises.
We have not subleased all or any part of the Premises or assigned
the Lease, or otherwise transferred our interest in the Lease or
the Premises, except as follows:
4. The Lease is in full force and effect and is binding and
enforceable against us in accordance with its terms. To the best
of our knowledge, neither ourselves, as Tenant, nor the Landlord,
is in default under the terms and conditions of the Lease. We
have no claim against the Landlord with respect to the Lease, the
Premises, or the common areas, defense or counterclaims against
the rent or other charges payable by us under the Lease. We
accept the Premises in its current condition and we are not aware
of any defect in the Premises.
5. There are no other agreements, written or oral, between the
Landlord and ourselves relating to our occupancy of the Premises.
6. We have no options or rights (and have not exercised any
option or rights) to renew, extend, amend, modify, or change the
term of the Lease.
7. We have no right of first refusal to purchase, right of
first offer to purchase, or option to purchase the Premises (or
any portion thereof). We have no other interest in any other
part of the building, of which the Premises form a part, or to
any personal property appurtenant thereto or used in connection
therewith.
8. No rent has been collected in the current month other than
as provided for in the Lease. We have not been given any free
rent, partial rent, rebates, rent abatements, or rent concessions
of any kind.
9. We have deposited the Security Deposit stated above with
Landlord, and none of the Security Deposit as set forth above has
been applied by Landlord to the payment of rent or any other
amounts due under the Lease. Pursuant to the terms of the Lease,
we are not entitled to earn any interest on said security
deposit.
10. [ALTERNATIVE TO BE ADDED IF ADDRESSED TO A LENDER]
(a) We understand that you (the "Lender") are the
owner and holder of a promissory note secured by a mortgage
dated *____________,20**, and recorded in Official Records
Volume *___, beginning at page *___, of the current public
records of Xxxxx County, Florida (hereinafter referred to as
the "Mortgage"), constituting a first lien upon real
property described therein (hereinafter referred to as the
"Real Property"). By execution hereof, we acknowledge that
the Lease shall at all times continue to be subject and
subordinate in all respects to the Mortgage and to all
advances, renewals, refinancing, and extensions thereof,
subject to the terms and conditions of this Agreement. By
acceptance hereof, the Lender understands and agrees that so
long as Tenant is not in default in the payment of rent,
additional rent, other charges, or in the performance of any
of the other terms, covenants, or conditions of the Lease,
Tenant shall not be disturbed by Lender in Tenant's
possession, enjoyment, use, and occupancy of the Premises
under the Lease during the original or any renewal term of
the Lease or any extension thereof.
(b) We acknowledge and agree that if the interest of
Landlord shall be acquired by Lender, by reasons of
foreclosure of the Mortgage or other proceedings brought to
enforce the rights of the holder thereof, by deed in lieu of
foreclosure or by any other method, and Xxxxxx succeeds to
the interest of Landlord under the Lease, the Lease and the
rights of Tenant thereunder shall continue in full force and
effect as though the Mortgage had not been
foreclosed and shall not be terminated or disturbed except
in accordance with the terms of the Lease. Tenant shall be
bound to Lender and Lender shall be bound to Tenant under all
of the terms, covenants, and conditions of the Lease for the
balance of the term thereof remaining, and any extensions or
renewals thereof which may be effected in accordance with
any option therefor contained in the Lease, with the same
force and effect as if Lender were Landlord under the Lease.
In the event of sale or assignment of Xxxxxxxx's interest in
the Premises or in the event of any proceedings brought for
the foreclosure of, or any exercise of power of sale under
the Mortgage, Xxxxxx agrees to attorn to Lender and
recognize Xxxxxx as Landlord under the Lease, said
attornment to be effective and self-operative without the
execution of any other instruments on the part of either
party thereto immediately upon Xxxxxx's succeeding to the
interest of Landlord under the Lease and Tenant hereby
agrees that Xxxxxx shall not be responsible or liable in any
way for any default under the Lease occurring prior to the
time Lender obtains title to the Real Property and is
entitled to actual, unrestricted possession of the Premises.
(c) In addition to the provisions of this Agreement,
by delivery hereof, we acknowledge and agree that Lender
shall not in any way or to any extent be:
(i) liable for any act or omission of any
landlord (including Landlord); or
(ii) subject to any offsets or defenses which
Tenant might have against any prior landlord
(including Landlord); or
(iii)bound by any rent or additional rent
which Tenant might have paid for more than
thirty (30) days in advance to any prior
landlord (including Landlord); or
(iv) bound by any agreement or modification of the
Lease from the date hereof made without
Xxxxxx's consent; or
(v) in any way responsible for any deposit or
security which has been delivered to Landlord
but which was not subsequently delivered to
Lender.
11. All notices, demands or requests, and responses thereto,
required or permitted to be given pursuant to this Agreement
shall be in writing and shall be deemed to have been properly
given or served and shall be effective upon being deposited in
the United States Mail, postage prepaid and registered or
certified with return receipt requested; provided, however, the
time period in which a response to any notice, demand, or request
must be given shall commence on the date of the receipt of the
return receipt of the notice, demand, or request by the addressee
thereof. Rejection or other refusal to accept or inability to
deliver because of changed address of which no notice has been
given shall constitute receipt as of the date of the first
attempted delivery of the notice, demand, or request sent. Any
such notice if given to Landlord shall be addressed as follows:
*_________________________
*_________________________
*_________________________
Attention: *_____________________
if given to Lender shall be addressed as follows:
*_________________________
*_________________________
*_________________________
if given to Tenant shall be addressed as follows:
*_________________________
*_________________________
*_________________________
or such other address in the United States as Landlord,
Lender, or Tenant may, by notice in writing, designate
for notice.
LANDLORD:
_________________________________ ABS XXXXX STREET, LLC,
Print Name:_______________________ a Florida limited
liability company
_________________________________ By: ____________________________
Print Name:_______________________ Xxxxxxx Xxxxxxx
Witnesses Its: President and General
Manager
TENANT:
__________________________________ THE JACKSONVILLE BANK,
Print Name:________________________ a Florida banking
corporation
__________________________________ By: _____________________________
Print Name:________________________ Xxxxxxx X. Xxxxx, III
Witnesses As its: President and Chief
Executive Officer
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this ___
day of ________, 2004, by Xxxxxxx Xxxxxxx, as President and
General Manager of ABS Xxxxx Street, LLC, a Florida limited
liability company, who is personally known to me or has produced
_____________ as identification.
_________________________________
Print Name:
Notary Public, State of
Florida at Large
Commission No.:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this ___
day of ________, 2004, by Xxxxxxx X. Xxxxx, III, as President of
The Jacksonville Bank, a Florida banking corporation, who is
personally known to me or has produced _____________ as
identification.
__________________________________
Print Name:
Notary Public, State of
Florida at Large
Commission No.:
My Commission Expires:
ADDENDUM A
(SPECIAL PROVISIONS)
THIS ADDENDUM "A" is made and entered into this ____ day of
February, 2004, by and between ABS XXXXX STREET, LLC, a Florida
limited liability company as Landlord, and THE JACKSONVILLE BANK,
a Florida banking corporation as Tenant. In the event of any
inconsistency between this agreement and the Lease dated
currently therewith to which this addendum is attached, this
addendum shall control. Capitalized terms shall, unless
otherwise set forth herein, have the same meaning as in the
Lease.
In consideration of the execution of Lease by Xxxxxxxx and
Xxxxxx, Landlord and Xxxxxx further agree as follows:
1. PARKING.
As long as Tenant is not in default under the terms of the
Lease, and subject to the matters set forth herein, Landlord
shall assign to Tenant the right to lease twenty-one (21)
unassigned non-exclusive parking spaces and four (4) assigned
parking spaces in that certain parking garage located at 00 X.
Xxxxxxx Xxxxxx (the "Garage"). For the first three (3) years of
this Lease, Landlord shall pay the cost of such spaces.
Thereafter, Tenant shall pay the Owner of the Garage for the
monthly charges for said spaces, which charges are currently
$80.00 and $96.00, respectively, per month but are subject to
adjustment. Xxxxxx acknowledges and agrees that Landlord is not
directly providing said spaces, and Landlord shall not be
responsible for the failure of said spaces or any terms or
conditions thereto. Xxxxxx agrees to abide with all rules and
regulations of the Garage as my be promulgated from the owner
thereof from time to time.
If Tenant fails to pay parking charges when due, Landlord
may by written notice to Tenant, terminate Tenant's right to
continue to lease said spaces and further, to declare a default
pursuant to the provisions of the Lease.
Tenant understands that parking spaces in the Garage are
reserved for the benefit of the Landlord but are not directly
leased by Landlord. Accordingly, Xxxxxxxx's duty to Tenant is
only to provide the right to lease said spaces under the terms
and conditions of the agreements between Landlord and the Garage
owner. To the extent that Landlord should lose the right to
lease said spaces, and as a result thereof, Tenant shall should
lose the right to lease said space, then Landlord will take all
reasonable efforts to provide substitute spaces for Tenant.
Notwithstanding the foregoing, failure of Landlord to obtain said
spaces on Xxxxxx's behalf shall not be deemed a default pursuant
to the terms of the Lease.
In addition to the foregoing, Landlord currently has limited
parking rights in a surface lot located west of and adjacent to
the Garage. For so long as Landlord has control of such lot and
is permitted to do so, Landlord will make available to Tenant
four (4) spaces in such lot on an "AS IS", "WHERE IS" basis, for
Tenant's customers use. Landlord shall have no liability to
Tenant to police such spaces or the use thereof, and Tenant shall
as a condition to the use thereof, execute such release or
indemnification agreements as may be requested to release the
Landlord and the lot owner from any and all liability associated
with such use. Termination of the use of such spaces resulting
from causes outside Landlord's control shall not be an event of
default hereunder.
2. OPTION TO RENEW.
________________
(i) Provided no Event of Default exists, or situation
exists which with notice or passage of time would constitute an
Event of Default, Tenant shall have the option to renew the term
for five (5) options of five (5) years each (the "Option Terms")
ending on or before August 31, 2036, with such renewals
commencing at the Termination Date of the then current term of
this Lease as stated in Item 9(B) of the Basic Lease Provisions.
Tenant shall inform Xxxxxxxx in writing (the "Notice") of its
election of the Option Term at least one hundred eighty (180)
days prior to the end of the then current Term. Renewal will be
at the same terms and conditions as provided elsewhere herein,
except the Initial Basic Annual Rent shall be reset at the
beginning of the Option Term pursuant to the methodology set
forth below.
(ii) The Basic Annual Rent Rate for each year during any
Option Terms shall be increased by fifty (50) cents per rentable
square foot of this Basic Annual Rent in effect during the prior
lease year. The Basic Annual Rent as calculated in the previous
sentence, shall increase on each anniversary date during the
Option Term by fifty (50) cents per rentable square foot per
year.
(iii) In the event Tenant fails to notify Landlord in
writing of its intent to exercise its option determined in
accordance with the procedure specified above, Landlord is under
no obligation to extend the term of the Lease.
3. RIGHT OF FIRST REFUSAL.
From time to time as space containing not less than one
hundred (100) usable square feet becomes available on the tenth
floor of the Building, or within one hundred eighty (180) days
from the execution date of this Lease, space becomes available on
the 9th floor of the Building, Landlord shall provide to Tenant
in writing a notice of right of first offer, which right shall be
subject to the rights of other tenants in the Project as set
forth between leases between the Landlord and such tenants.
Tenant shall have fifteen (15) days from the delivery of such
notice of right of first offer in which to respond to Xxxxxxxx's
offer. Should Landlord have failed to receive any response in
such fifteen (15) day period from Tenant, then Landlord shall
have no further obligation to Tenant with respect to the space
covered and described in such notice of the availability of
additional space. Notwithstanding anything to the contrary set
forth in this section, should Tenant be in default or should a
situation exist which, with notice or passage of time,
constitutes an event of default under this lease, then and in
that event, Landlord shall have no obligation to provide to
Tenant during the pendency of such default notice of a right of
first offer and Tenant shall have no right of first offer during
any period during which a default exists or a situation exists
which with notice or passage of time would constitute a default
hereunder. Any space leased by the Tenant under the terms of
this paragraph shall be leased at Tenant's then existing lease
rates, subject to annual adjustment as provided herein, and on
the same terms and conditions set forth herein and shall be
leased for a term that shall be coterminous with the Term of this
Lease. If Tenant leases such space, Tenant shall be entitled to
a tenant improvement allowance calculated as follows: $20.00 per
usable square foot, divided by 84, multiplied by number of months
remaining in original seven year lease term.
_________________________________ ABS XXXXX STREET, LLC,
Print Name:_______________________ a Florida limited
liability company
_________________________________ By: __________________________
Print Name:_______________________ Xxxxxxx Xxxxxxx
Witnesses Its: President and General
Manager
"Landlord"
__________________________________ THE JACKSONVILLE BANK,
Print Name:________________________ a Florida banking
corporation
__________________________________ By: __________________________
Print Name:________________________ Xxxxxxx X. Xxxxx, III
Witnesses As its: President and Chief
Executive Officer
"Tenant"
