1
Exhibit 10.3
LEASE AGREEMENT
BETWEEN
VIA XXXXXX ASSOCIATES (LANDORD)
AND
MACKENZIE INVESTMENT MANAGEMENT INC. (TENANT)
2
TABLE OF CONTENTS
ARTICLE TITLE PAGE
------- ----- ----
I Basic Lease Provisions............................... 3
II Rent................................................. 4
III Construction of Leased Premises...................... 10
IV Conduct of Business by Tenant........................ 12
V Security Deposit..................................... 12
VI Tenant Improvements.................................. 13
VII Repairs and Maintenance of Leased Premises........... 15
VIII Insurance and Indemnity.............................. 17
IX Utilities............................................ 19
X Attornment and Subordination......................... 20
XI Assignment and Subletting............................ 21
XII Waste, Governmental Regulations...................... 24
XIII Rules and Regulations................................ 25
XIV Advertising, Etc. ................................... 25
XV Destruction of Leased Premises....................... 26
XVI Eminent Domain....................................... 27
XVII Default of Tenant.................................... 28
XVIII Access by Landlord................................... 32
XIX Tenant's Property.................................... 33
XX Holding Over Successors.............................. 34
XXI Quiet Enjoyment...................................... 35
XXII Miscellaneous........................................ 35
3
LIST OF EXHIBITS
EXHIBIT ONE - Site Plan of Via Xxxxxx Financial Plaza
EXHIBIT TWO - Additional Lease Agreement Provisions
EXHIBIT "A" - Plan of Leased Premises
EXHIBIT "A-1" - Optional Lease Premises Configuration
EXHIBIT "B" - Legal Description
EXHIBIT "C" - Landlord's Work
EXHIBIT "D" - Tenant's Work
EXHIBIT "E" - Sign Specifications
EXHIBIT "F" - Heating and Air Conditioning Maintenance
Provision
EXHIBIT "G" - Maintenance and Cleaning Standards For Tenant
EXHIBIT "H" - Rules and Regulations of Via Xxxxxx Financial Plaza
EXHIBIT "I" - Rules and Regulations for Tenant Construction Work
EXHIBIT "J" - Formula for Calculation of Area Within Leased Premises
EXHIBIT "K" - Standards for Tenant Installation of Equipment on the
Roof or Affixed to the Building
EXHIBIT "L" - Memorandum of Lease
EXHIBIT "M" - Non-Disturbance and Attornment Agreement
EXHIBIT "N" - Collateral Account Escrow Agreement
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LEASE AGREEMENT
THIS LEASE, made as of the 10th day of May, 1989 by VIA XXXXXX ASSOCIATES, a
Florida general partnership, herein called "Landlord, and MACKENZIE INVESTMENT
MANAGEMENT INC., a Delaware corporation authorized to do business in the State
of Florida, herein called "Tenant".
LEASE SUMMARY
a) Landlord's Mailing
Address: X.X. Xxxxxx 00
Xxxx Xxxxx Xxxxxxx 00000
b) Tenant Suite No.: Third Floor, Building No.:
Pavilion 6
c) Tenant's Lease Address: ____________________________________
____________________________________
d) Tenant's Billing
Address: ____________________________________
____________________________________
e) Tenant's Telephone No.: Home( ) _________________________
Business ( ) ____________________
f) Tenant's Name (including
State of formation or
Incorporation): MACKENZIE INVESTMENT MANAGEMENT
INC., a Delaware corporation
g) Tenants Trade Name: ____________________________________
h) Resident Manager or
key person: ____________________________________
i) Guarantor(s): See Exhibit Two, Paragraph 13
j) Lease Commencement Date: See Exhibit Two, Paragraph 1
k) Lease Expiration Date: 11 years from Lease Commencement Date
l) Amendments: See Exhibit Two attached hereto
and made a part hereof
m) Expansion Provisions: See Exhibit Two, Paragraph 3
n) GLA in Premises: See Exhibit J (approximate size
11,664 sq. ft. +/-)
o) Tenant Improvements: See Exhibit Two, Paragraph 2
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p) Minimum Rent:
FIXED
LEASE MINIMUM MONTHLY
YEAR $/SQ. FT. ANNUAL RENT INSTALLMENT
---- --------- ----------- -----------
1 $00.00 $ 0.00 $ .00
2 20.00 233,280.00 19,440.00
3 20.00 233,280.00 19,440.00
4 20.00 233,280.00 19,440.00
5 20.80 242,611.20 20,217.60
6 21.94 255,908.16 21,325.68
7 23.71 276,553.44 23,046.12
8 24.42 284,834.88 23,736.24
9 25.77 300,581.28 25,048.44
10 26.32 306,996.48 25,583.04
11 26.32 306,996.48 25,583.04
q) Permitted Use: General offices providing financial, insurance,
accounting and/or legal services
r) Consumer Price Index: NONE; and N/A
s) Security Deposit: NONE
t) Other Sums Payable: N/A
u) Estimated Annual
Expenses (First Year):
Base Rent: $ -0-
Pavilion No. 6 Operating Costs: 11,724.00
Via Xxxxxx Financial Plaza Operating Costs: Included
Via Xxxxxx Master Facilities Operating Costs: 8,364.00
Real Estate Taxes: 20,424.00
Insurance: 3,456.00
Utility Charges: 3,072.00
Other:
-----------
Sales Tax: 2,822.40
Estimated Annual Total 1st Year: $ 49,862.40
===========
THE INFORMATION SET FORTH IN THIS SECTION (u) HAS BEEN ESTIMATED
BASED ON LANDLORD'S GOOD FAITH ATTEMPT TO CALCULATE SUCH SUMS
FOR DISCLOSURE PURPOSES ONLY. THE LANDLORD DISCLAIMS ANY
RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION AND DOES NOT WARRANT
OR REPRESENT TO TENANT THAT ANY ESTIMATE IS ACCURATE. THE TENANT SHOULD
ENGAGE AND RELY ONLY UPON INDEPENDENT REAL ESTATE PROFESSIONALS
EMPLOYED BY TENANT TO ASCERTAIN THE ACCURACY OF THESE ESTIMATES.
v) Remarks: Royal te Page (BS)
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THE FOREGOING LEASE SUMMARY IS AN
INTEGRAL PART OF THIS LEASE AGREEMENT
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ARTICLE 1
Basic Lease Provisions
SECTION 1.01 Leased Premises.
In consideration of the rents, covenants and agreements hereafter
reserved and contained on the part of the Tenant to be observed and
performed, the Landlord demises and leases to the Tenant, and Tenant
rents from Landlord, those certain premises now existing or hereafter to
be erected in VIA XXXXXX FINANCIAL PLAZA which premises is identified as
Suite Xx. 000, Xxxxxxxx Xxxxxxxx 0, containing an area of 11,664 square
feet (which area shall be established in accordance with the criteria
set forth on Exhibit "J" attached hereto and made a part hereof), herein
called the "Leased Premises". The boundaries and location of the Leased
Premises are outlined and identified on the Building Plan marked Exhibit
"A" attached hereto and made a part hereof. Dimensions for all purposes
shall be measured in accordance with the criteria set forth on Exhibit
"J" from the centerline of interior walls or from the exterior face of
exterior walls. The Leased Premises are located in VIA XXXXXX FINANCIAL
PLAZA on the real property described in Exhibit "B" attached hereto and
made a part hereof. The boundaries of the VIA XXXXXX FINANCIAL PLAZA
(which boundaries may be modified or amended to increase or decrease the
area) are identified on Exhibit "One", the site plan of VIA XXXXXX
FINANCIAL PLAZA, attached hereto and made a part hereof.
SECTION 1.02 Use of Additional Areas.
The use and occupation by the Tenant of the Leased Premises shall
include the non-exclusive use in common with others entitled thereto of
the common areas, employees' parking areas, service roads, malls,
loading facilities, sidewalks and customer car parking areas as such
common areas now exist or as such common areas may hereafter be
constructed upon or within the real property described in Exhibit "B",
and other facilities as may be designated from time to tine by the
Landlord, subject however to the terms and conditions of this Lease and
to rules and regulations for the use thereof (including use charges and
parking validation procedures) as prescribed from time to time by the
Landlord.
SECTION 1.03 Commencement and Length of Term.
The term of this Lease shall commence on the date set forth in
Section (j) of the Lease Summary, and shall continue until the
expiration date as set forth in Section (k) of the Lease Summary.
SECTION 1.04 Commencement of Rent.
The Tenant's obligation to pay rent shall commence on the
earliest of the following dates: (a) the _____ day of __________ 19 or,
if no date is completed in this subparagraph (a), then as set forth in
subparagraphs (b) and (c) hereinafter; (b) the 90th day after Landlord
shall have notified Tenant that the Leased Premises are ready for
commencement of Tenant's work, or (c) the date upon which Tenant opens
for business in the Leased Premises. Should the term of this Lease and
the Tenant's obligation to pay rent commence on a day other than the
first day of a month, then the term of this Lease shall continue in full
force and effect for the period from the commencement date hereof to the
first day of the calendar month next succeeding, plus the period of the
term set forth in Section 1.03 hereof; provided, however, that the
Tenant shall pay rent for the fractional month (from the Commencement
Date to and including the last day of the
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fractional month) on a per diem basis (the per diem being calculated on
the basis of a thirty day month) and the rent for the fractional month
shall be payable on the commencement date and thereafter the fixed
minimum rent shall be paid in equal monthly installments on the first
day each and every month in advance. All other monthly payments
hereunder shall likewise be calculated and paid on such per diem basis
for any fractional month.
SECTION 1.05 Failure of Tenant to Open.
In the event that Tenant has received notice that the Leased
Premises are ready for occupancy as herein defined and (i) Tenant fails
to take possession and to open the Leased Premises for business fully
fixtured, stocked and staffed and fail to commence to do business within
the time herein provided, and (ii) Tenant opens a corporate headquarters
facility within a five (5) mile radius of the VIA XXXXXX FINANCIAL
PLAZA, then Tenant shall be in default hereunder and the Landlord shall
have the right to enforce all remedies of default as provided in this
Lease.
SECTION 1.06 Excuse of Landlord's Performance.
Anything in this Lease to the contrary notwithstanding; the
Landlord shall not be deemed in default with respect to failure to
perform any of the terms, covenants and conditions of this Lease if same
shall be due to rainstorm, hurricane, or other weather phenomenon, any
strike, lockout, civil commotion, warlike operation, invasion,
rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, inability to obtain any material,
service or financing, through Act of God or other causes beyond the
control of the Landlord.
SECTION 1.07 Obligations of Tenant Before Lease Term Begins.
Tenant shall observe and perform all of its obligations under
this Lease (except its obligations to operate and to pay Fixed Minimum
Rent, its pro rata share of VIA XXXXXX FINANCIAL PLAZA's Operating Costs
provided for in Section 2.06, and its pro rata share of real estate
taxes as provided for in Section 2.06) from the date upon which the
Leased Premises are delivered to Tenant for its work until the
Commencement Date of the Lease Term in the same manner as though the
Lease Term began when the Leased Premises were delivered to Tenant.
ARTICLE II
Rent
SECTION 2.01 Fixed Minimum Annual Rent.
(a) Tenant agrees to pay Landlord, subject, however to adjustment
(if any) as herein provided, as fixed minimum annual rent the sum or
sums set forth in Section (p) of the Lease Summary (hereinafter referred
to as "Fixed Minimum Annual Rent"). The Fixed Minimum Annual Rent during
the term of this Lease shall be payable by the Tenant in equal monthly
installments, on or before the first day of each month in advance, at
the office of the Landlord as set forth in Section (a) of the Lease
Summary, or at such other place designated by Landlord in writing,
without notice or demand, and without any deduction, counterclaim, or
set-off whatsoever.
(b) In the event that at any time any personal or corporate check
of Tenant should be returned marked "insufficient funds" or should not
be promptly paid by the drawee bank for any other
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reason (excepting and error made by the drawee bank and acknowledged by
the drawee bank in writing), Landlord may, without prejudice to any
other right or remedy accruing to Landlord under this Lease, require
that all future rental payments are to be made on or before the due date
by cash, cashier's check or money order.
SECTION 2.02 Cost of Living Increases in Fixed Minimum Annual Rent.
The initial term of the Lease is not subject to the provisions of
this Section 2.02 however, if any option term is exercised, then in the
case of any option terms, if any, commencing one (1) year from the first
day of the option term (the Adjustment Date), and annually thereafter,
the Fixed Minimum Annual Rent shall be adjusted (increased but not
decreased) by the following mathematical formula:
A = [(B X C/D)]
A is the Fixed Minimum Annual Rent for the year following the
Adjustment Date (the Adjusted Fixed Minimum Annual Rent).
B is the Fixed Minimum Annual Rent as subsequently established
in accordance with market rental value review provision
contained Lease, if any, or is the Fixed Minimum Annual of the
Commencement Date of any option term, case may be.
C is the Index for two (2) months preceding the month in which
the Adjustment Date occurs.
D is the Commencement Date Index of any option term.
The formula shall adjust the Fixed Minimum Annual Rent as of the
Commencement Date of any option term by the product obtained by
multiplying the Fixed Minimum Annual Rent times a fraction, the
numerator of which shall be the Consumer Price Index for Urban Wage
Earners and Clerical Workers (U.S. City Average: All Items), issued by
the Bureau of Labor Statistics of the U.S. Department of Labor, using
the year 1967 as a base of 100, (the "Index") for the month immediately
preceding the month in which the Adjustment Date occurs, and the
denominator shall be the Commencement Date Index of the option term. The
result of this calculation shall be the Adjusted Fixed Minimum Annual
Rent for the year following the Adjustment Date.
In the event that the Index herein referred to ceases to be
published during the term of this Lease, or if a substantial change is
made in the method of establishing such Index, then the determination of
the adjustment in the Fixed Minimum Annual Rent shall be made with the
use of such conversion factor, formula or table as may be published by
the Bureau of Labor Statistics, or if none is available, the parties
shall accept comparable statistics on the cost of living in the United
States, as shall then be computed and published by an agency of the
United States, or if none, by a respected financial periodical selected
by Landlord.
In the event that Tenant elects to exercise its option(s) (if
any) to extend this Lease, the cost of living increase in the Fixed
Minimum Annual Rent for the option period(s) shall be computed and
applied according to the same procedure described hereinabove for the
initial term of the Lease, except that the Fixed Minimum Annual Rent
shall be the amount established in
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accordance with the terms of any option provisions (if any) attached to
this Lease.
SECTION 2.03 Sales or Use Tax or Excise Tax.
Tenant shall also pay, as additional rent, all sales or use or
excise tax imposed, levied or assessed against the rent or any other
charge or payment required herein by any governmental authority having
jurisdiction thereover, even though the taxing statute or ordinance may
purport to impose such sales tax against the Landlord. The payment of
sales tax shall be made by Tenant on a monthly basis, concurrently with
payment of the Fixed Minimum Annual Rent.
SECTION 2.04 Control of Common Areas by Landlord.
All areas within the exterior boundaries of VIA XXXXXX FINANCIAL
PLAZA which are now or hereafter held for lease or occupation by the
Landlord, or used by other persons entitled to occupy floor space in VIA
XXXXXX FINANCIAL PLAZA, including, without limitation, all automobile
parking areas, driveways, entrance and exits thereto, and other
facilities furnished by Landlord in or near VIA XXXXXX FINANCIAL PLAZA,
including employee parking areas, the truck way or ways, loading docks,
package pick-up stations, pedestrian sidewalks and ramps, landscaped
areas, exterior stairways, and other areas and improvements provided by
Landlord for the general use, in common, of tenants, their officers,
agents, employees and customers, ("Common Areas"), shall at all times be
subject to the exclusive control and management of Landlord, and Landlord
shall have the right, but not the obligation, to construct, maintain and
operate lighting facilities on all said areas and improvements, to police
the same, from time to time to change the area, level, location and
arrangement of parking areas and other facilities herein above referred
to; to restrict parking by tenants, their officers, agents and employees
to employee parking areas, to require tenants, their officers, agents and
employees to provide vehicle license numbers and to use parking decals or
other reasonable parking identification procedures, and to enforce
parking charges (by operation of meters or otherwise), with appropriate
provisions for free parking ticket validating, or in lieu thereof, to
apply the net proceeds from such charges, as follows: (i) the cost of
maintaining and operating the parking facilities; and (ii) the payment of
the cost for constructing the parking facilities and amortization
thereof; and (iii) any remaining receipts shall be received as operating
profit of the Landlord in consideration for providing the parking
facilities and operation thereof.
Landlord shall have the right to close all or any portion of said
areas or facilities to such extent as may, in the opinion of Landlord's
counsel, be legally sufficient to prevent a dedication thereof or the
accrual of any rights to any person or the public therein, to close
temporarily all or any portion of the parking areas or facilities, to
discourage non-customer parking; and to do and perform such other acts in
and to said areas and improvements as, in the use of good business
judgment, the Landlord shall determine to be advisable with a view to the
improvement of the convenience and use thereof by tenants, their
officers, agents, employees and customers. Landlord shall keep said
Common Areas clean and in good repair and available for the purposes for
which they are intended. Landlord shall have the full right and authority
to employ all personnel and to make all rules and regulations pertaining
to and necessary for the proper operation and maintenance of the Common
Areas and facilities.
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SECTION 2.05 License.
All Common Areas and facilities not within the Leased Premises1 which
Tenant may be permitted to use and occupy, are hereby authorized to be used and
occupied under a revocable license, and if any such license be revoked, or if
the amount of such areas be diminished, Landlord shall not be subject to any
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation or diminution of such areas be
deemed constructive or actual eviction.
SECTION 2.06 Tenant to Bear Pro Rata Share of VIA XXXXXX FINANCIAL PLAZA
Operating Costs.
(a) In each Lease Year or partial Lease Year, as defined herein,
Tenant will pay to Landlord, in addition to the rental specified in
Article II hereof, as further additional rent, a proportion of: (i) the
Building Operating Costs, as hereinafter defined; (ii) VIA XXXXXX
FINANCIAL PLAZA's Operating Costs, as hereinafter defined; and (iii) Via
Xxxxxx Master Facilities Operating Costs, as hereinafter defined. Each
of the proportionate cost components described above shall be calculated
by multiplying the total of each cost component by a fraction, the
numerator of which shall be the aggregate number of square feet
contained in the Leased Premises and the denominator of which shall be
the aggregate number of square feet of constructed building space in VIA
XXXXXX FINANCIAL PLAZA, as the sane may exist from time to time and as
calculated in accordance with the provisions of Exhibit "J". Such
payments shall be made as provided under Section (u) of the Lease
Summary and, thereafter, shall continue as provided under Section
2.06(e).
"Lease Year" as used herein shall mean consecutive twelve-month
periods commencing on each January 1st during the term of this Lease. In
the event that the term of this Lease commences on a date other than
January 1st, or expires on a date other than December 31st, the first
and last years shall be partial lease years and in such case the first
partial lease year shall commence on the date of the commencement of the
term of this Lease and expire on December 31st next following and the
last partial lease year shall commence on the last January 1st occurring
during the term of this Lease and shall expire on the expiration date of
this Lease.
(b) "Building Operating Costs" as used herein means the total
cost and expense incurred in operating, maintaining and repairing the
building identified in Section (b) of the Lease Summary (hereinafter
referred to as the "Building"), together with improvements and common
facilities, actually used or available for use by Tenant and employees,
agents, servants, customers and other invitees of Tenant, excluding only
items of expense commonly known and designated as debt service. The
Building Operating Costs shall specifically include, without limitation
the cost and expense incurred in operating, maintaining, repairing and
providing (i) property management, the annual cost of which shall not
exceed five percent (5%) of the net operating income (ii) gardening,
landscaping and irrigation, (iii) line painting and other parking
facilities serving exclusively the Building, (iv) all utility facilities
and utility expenses and charges serving exclusively the Building, (v)
all common areas and common facilities, serving exclusively the
Building, (vi) sanitary control, removal of trash, rubbish, garbage and
other refuse from the common areas but not from any Leased Premises,
(vii) depreciation on machinery and equipment owned by Landlord or the
rental charges for such machinery and equipment, and the cost of
personnel to implement such services, (viii) personnel to direct parking
and to police the common
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facilities, including watchmen and security personnel, including payroll
and applicable payroll taxes, worker's compensation insurance and fringe
benefits, (ix) Landlord's insurance premiums on or in respect of the
Building, including, but not limited to public liability, property
damage all risk perils, rent and flood insurance, if carried by
Landlord, (x) all ad valorem and real estate taxes and special
assessments for public betterments or improvements levied or assessed by
any lawful authority against the land, buildings and all other
improvements and betterments which are now or which hereafter become a
part of the Building, and (xi) personnel to maintain, repair and operate
the Building and Common Facilities. "Common Facilities" means all areas,
space, parking facilities, equipment and special services used to
operate exclusively the Building or provided by Landlord for the common
or joint use and benefit of the occupants of the Building, their
employees, agents, servants, customers and other invitees, including
without limitation, parking areas, access roads, driveways, retaining
walls, landscaped areas, truck serviceways, loading docks, pedestrian
malls, courts, stairs, ramps and sidewalks, washrooms, and signs,
wherever located, identifying the Building, or providing instruction
signage thereto.
The following items are expressly excluded from Building
Operating Costs: (1) any capital expenditure, (2) costs for maintaining
the roof and load bearing walls, (3) executive salaries excepting that
of the Property Manager, (4) VIA XXXXXX FINANCIAL PLAZA, (5) consulting
fees relating to capital expenditures, (6) market study fees, (7) lease
commissions and advertising costs, (8) initial landscaping costs, (9)
structural repairs and replacements, (10) any penalty or late charge
incurred by the Landlord as a result of the failure of the payment of
taxes on its due date, (11) any fee or interest charge resulting from
the Landlord's refinancing of the property, (12) money the Landlord must
pay if Landlord defaults under a lease or other agreement, (13) any
legal fees to resolve disputes involving the Landlord and any particular
tenant, (14) any excessive amount the Landlord pays a contractor or
vendor, (15) costs incurred by the Landlord as a result of any new
construction in any subsequent phase of XXX XXXXXX XXXXXXXXX XXXXX, (00)
any ground rents as they result to ground leases.
(c) "VIA XXXXXX FINANCIAL PLAZA Operating Costs" as used herein
means the total cost and expense incurred in operating, maintaining, and
repairing VIA XXXXXX FINANCIAL PLAZA's buildings and improvements and
common facilities, hereinafter defined, actually used or available for
use by Tenant and employees, agents, servants, customers and other
invitees of Tenant, excluding only items of expense commonly known and
designated as debt service. The VIA XXXXXX FINANCIAL PLAZA Operating
Costs shall specifically include, without limitation the cost and
expense incurred in operating, maintaining, repairing and providing (i)
property management, (ii) gardening, landscaping and irrigation, (iii)
all parking facilities, (iv) all utility facilities (including but not
limited to sewer lines and installations, water lines and installation,
electrical lines and facilities, and storm drainage facilities), and
utility expenses and charges for utility services, (v) sanitary control,
removal of trash, rubbish, garbage and other refuse from the common
areas but not from any Leased Premises, (vi) depreciation on machinery
and equipment owned by Landlord or the rental charges for such machinery
and equipment, and the cost of personnel to implement such services,
(vii) the cost of personnel to direct parking and to police the common
facilities, including watchmen and security personnel, including payroll
and applicable payroll taxes, worker's compensation insurance and fringe
benefits, (viii) Landlord's insurance premiums on or in respect of VIA
XXXXXX FINANCIAL PLAZA, including, but not limited to public liability,
property damage all risk perils, rent and flood insurance, if
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carried by Landlord, (ix) all ad valorem and real estate taxes and
special assessments for public betterments or improvements levied or
assessed by any lawful authority against the land, buildings and all
other improvements and betterments which are now or which hereafter
become a part of VIA XXXXXX FINANCIAL PLAZA, (x) all common areas and
common facilities, and (xi) personnel to maintain, repair and operate
VIA XXXXXX FINANCIAL PLAZA including all of its Common Facilities.
"Common Facilities" means all areas, space, parking facilities,
equipment and special services used to operate VIA XXXXXX FINANCIAL
PLAZA, or to provide services to each building within VIA XXXXXX
FINANCIAL PLAZA, or provided by Landlord for the common or joint use and
benefit of the occupants of VIA XXXXXX FINANCIAL PLAZA, their employees,
agents, servants, customers and other invitees, including without
limitation, parking areas, access roads, driveways, retaining walls,
landscaped areas, truck serviceways, loading docks, pedestrian malls,
courts, stairs, ramps and sidewalks, washrooms, private roads, utility
services and installations, and storm drainage installations and
facilities, and signs (wherever located) identifying VIA XXXXXX
FINANCIAL PLAZA, or providing instruction signage thereto. If Landlord
exercises its right to invoke a paid parking program, then all costs of
operating the parking facilities included within the parking program (to
the extent paid for from receipts collected from the parking program)
shall be excluded from the VIA XXXXXX FINANCIAL PLAZA Operating Costs.
(d) "Via Xxxxxx Master Facilities Operating Costs" as used
herein means the total cost and expense in operating, repairing and
maintaining the master improvements and common facilities actually used
or made available for use by the tenants and employees, agents,
servants, customers and other invitees of Tenant excluding only items of
expense commonly known and designated as debt service. Via Xxxxxx Master
Facilities Operating Costs shall specifically include, without
limitation the cost and expense incurred in operating, maintaining,
repairing and providing (i) property management, (ii) gardening,
landscaping and irrigation, (iii) all parking facilities, (iv) all
on-site and off-site utility facilities (including but not limited to
sewer lines and installations, water lines and installation, electrical
lines and facilities, and storm drainage systems, facilities and
retention lakes and areas), and utility expenses and charges for utility
services, (v) sanitary control, removal of trash, rubbish, garbage and
other refuse from the common areas but not from any Leased Premises,
(vi) depreciation on machinery and equipment owned by Landlord or the
rental charges for such machinery and equipment, and the cost of
personnel to implement such services, (vii) the cost of personnel to
direct parking and to police the common facilities, including watchmen
and security personnel, including payroll and applicable payroll taxes,
worker's compensation insurance and fringe benefits, (viii) Landlord's
insurance premiums on or in respect of the Master Facilities, including,
but not limited to public liability, property damage all risk perils,
rent and flood insurance, if carried by Landlord, (ix) all ad valorem
and real estate taxes and special assessments for public betterments or
improvements levied or assessed by any lawful authority against the
Master Facilities which now or hereafter service or become a part of VIA
XXXXXX FINANCIAL PLAZA, and (x) personnel to maintain, repair and
operate the Master Facilities. "Master Facilities" means all on-site or
off-site areas, space, parking facilities, equipment and special
services used to operate VIA XXXXXX FINANCIAL PLAZA, or to provide
services to each building within VIA XXXXXX FINANCIAL PLAZA, or provided
by Landlord for the common or joint use and benefit of the occupants of
VIA XXXXXX FINANCIAL PLAZA, their employees, agents, servants, customers
and other invitees, including without limitation, parking areas, access
roads, driveways, retaining walls
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landscaped areas, truck serviceways, loading docks, pedestrian malls1
courts, stairs, ramps and sidewalks, washrooms, private roads, utility
services and installations, and storm drainage installations and
facilities, and signs (wherever located) identifying VIA XXXXXX
FINANCIAL PLAZA, or providing instruction signage thereto.
(e) Landlord shall estimate (i) the Building Operating Costs,
and (ii) the VIA XXXXXX FINANCIAL PLAZA Operating Costs, and (iii) the
Via Xxxxxx Master Facilities Operating Costs, referred to in this
Section 2.06 and Tenant shall pay one-twelfth (1/12) of the collective
sum thereof (as provided for in subparagraph (a) above) monthly in
advance, together with the payment of fixed minimum rent. After the end
of each Lease Year, Landlord shall furnish Tenant a statement of the
actual Building Operating Costs, VIA XXXXXX FINANCIAL PLAZA Operating
Costs, and the Via Xxxxxx Master Facilities Operating Costs, and there
shall be an adjustment between Landlord and Tenant, with payment to or
repayment by Landlord, as the case may require, to the end that Landlord
shall receive the entire amount of Tenant's annual share of the
collective operating costs for such period, or, at Landlord's option,
any overpayment by Tenant shall be credited on account of the next
succeeding payment by Tenant of such collective operating costs.
SECTION 2.07 Additional Rent.
In order to give Landlord a lien of equal priority with
Landlord's lien for rent, and for no other purpose, any and all suns of
money or charges required to be paid by Tenant under this Lease, whether
or not the same be so designated, shall be considered "Additional Rent".
If such amounts or charges are not paid at the time provided in this
Lease, they shall nevertheless, if not paid when due, be collectible as
Additional Rent with the next installment of rent thereafter falling due
hereunder; but nothing herein contained shall be deemed to suspend or
delay the payment of any amount of money or charges as the same becomes
due and payable hereunder, or limit any other remedy of the Landlord.
ARTICLE III
Construction of Leased Premises
SECTION 3.01 Landlord's Work.
Landlord agrees that it will construct (subject to the
conditions and limitations set forth in the Individual Development
Approval DDRI XXX NO. CRP 88-4 issued pursuant to the Boca Raton
Community Redevelopment Area Downtown Development of Regional Impact
Development Order), at its own expense the office building, as more
particularly set forth in Exhibit "C" attached hereto and made a part
hereof. Landlord shall notify Tenant when Landlord has completed
Landlord's work in accordance with the provisions of Exhibit "C".
SECTION 3.02 Tenant's Work.
Tenant agrees, at its own cost and expense, to perform all other
work, more particularly described in Exhibit "D" annexed hereto, and on
the outline plans and specifications to be provided by Landlord, which
is necessary to make the Leased Premises conform with Tenant's plans to
be approved by Landlord. All tenant improvements and any other work
performed by Tenant within the Leased Premises shall be accomplished and
completed in accordance with the Rules and Regulations for Tenant
Construction Work set forth in Exhibit "I" attached hereto and made a
part hereof. Within sixty (60) days after the execution of this
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Lease, Tenant shall furnish Landlord, in advance of Tenant's
commencement of work, for Landlord's written approval, plans and
specifications showing a layout, fixturing plans, interior finish, and
any work or equipment to be done or installed by Tenant affecting any
structural, mechanical or electrical part of the Leased Premises or the
building containing same. Landlord agrees it will not unreasonably
withhold such approval, it being the purpose of this requirement that
Tenant's Leased Premises be fixtured and laid out so as not to be a
detriment to the other tenants in VIA XXXXXX FINANCIAL PLAZA and that
Tenant's work shall not be detrimental to Landlord's Building.
SECTION 3.03 Acceptance by Tenant.
If Landlord's work is not completed when this Lease is executed,
Tenant agrees that acceptance by Tenant of possession of the Leased
Premises for the purpose of construction of Tenant improvements or the
issuance of a Certificate of Occupancy for the Landlord's work will be
deemed as an acceptance of the Leased Premises in its then existing
condition.
SECTION 3.04 Changes and Additions to Building.
Landlord hereby reserves the right at any time to perform
maintenance operations and to make repairs, alterations, or additions,
to the Building in which the premises are contained and to build
adjoining or annexed to any existing building. Landlord also reserves
the right to construct other buildings or improvements, including, but
not limited to, structures for motor vehicle parking and the enclosing
and air conditioning of improvements and common facilities in VIA XXXXXX
FINANCIAL PLAZA from time to time and to make alterations thereof or
additions thereto and to build additional stories on any such building
or buildings and to build adjoining or annexed to any existing building.
Landlord hereby reserves for Landlord's exclusive use (i) all air space
above or surrounding the Leased Premises, (ii) view rights and window
vistas above or surrounding the Leased Premises, and (iii) landscaping
and excavation of the improvements and common facilities in VIA XXXXXX
FINANCIAL PLAZA; provided, however, Landlord shall not undertake any
construction or improvements, or modifications to the Building which
would extend above the slab of the second floor of the Building and
further shall undertake no construction or improvements or modifications
to the Building which would any manner impair the view rights of the
Tenant within the "hatched area" as set forth on Exhibit One, Page 1-A
(notwithstanding the foregoing, the Tenant acknowledges that the
Landlord does not own or control the real property or improvements
outside the boundaries of the site plan of VIA XXXXXX FINANCIAL PLAZA as
set forth on Exhibit One, Page 1 and therefore any change, modification,
alteration or reconfiguration of the property or improvements, including
but not limited to the installation of landscaping, outside the
boundaries of the site plan of VIA XXXXXX FINANCIAL PLAZA, is not within
the control of the Landlord). Tenant agrees to cooperate with Landlord
permitting Landlord to accomplish any such maintenance, repairs,
alterations, additions or construction. Temporary or partial obstruction
of access to the Leased Premises or improvements and common facilities
of VIA NIZNER FINANCIAL PLAZA caused by such construction shall not be a
default of Landlord, provided that shall always be reasonable access.
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ARTICLE IV
Conduct of Business by Tenant
SECTION 4.01 Use of Premises.
Tenant shall use the Leased Premises solely for the purpose of
conducting business as provided in Section (q) of the Lease Summary and
for other purpose.
SECTION 4.02 Occupancy of Premises.
Tenant shall occupy the Leased Premises without delay upon
commencement of the term of this Lease (except as provided for in
Section 1.05 hereinbefore), and shall conduct continuously in the Leased
Premises the business above stated. Tenant will not use or permit, or
suffer the use of the Leased Premises for any business or purpose other
than that stated above, and further agrees to conduct its business in
the premises under the name or trade name as set forth in Section (f) or
(g) of the Lease Summary and under no other name or trade name except
such as may be first approved by Landlord in writing which the Landlord
will not unreasonably withhold. The terms, conditions and rental
conditions of this Lease have been negotiated by the Landlord in
reliance upon the specific permitted use of the Tenant and the terms of
this Lease would be reconsidered by Landlord if another use of the
Leased Premises were contemplated by the Tenant.
SECTION 4.03 Use in Compliance With Regulations.
Tenant shall not at any time use or occupy the Leased Premises
or the Building, or suffer or permit anyone to use or occupy the Leased
Premises, or do anything in the Leased Premises or the Building, or
suffer or permit anything to be done in, brought into or kept on the
Leased Premises, which in any manner in the reasonable determination of
Landlord (a) violates the Certificate of Occupancy for the Leased
Premises or for the Building, (b) causes or is liable to cause injury to
the Leased Premises or the Building or any equipment, facilities or
systems therein, (c) constitutes a violation of the laws and
requirements of any public authorities or the requirements of insurance
bodies, (d) impairs or tends to impair the character, reputation or
appearance of the Building as a first-class office building, (e) impairs
or tends to impair the proper and economic maintenance, operation and
repair of the Building and/or its equipment, common facilities or
systems, (f) annoys or inconveniences or tends to annoy or inconvenience
other tenants or occupants of the Building or VIA XXXXXX FINANCIAL
PLAZA, (g) constitutes a nuisance, public or private, or violates any
environmental law, ordinance or regulation, or (h) discharges
objectionable fumes, vapors or odors into the Building vents or
otherwise in such a manner as to offend or inconvenience the other
tenants or occupants of the building.
ARTICLE V
Security Deposit
Landlord and Tenant agree that the Tenant is not required to provide
Landlord with a security deposit.
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ARTICLE VI
Tenant Improvements
SECTION 6.01 Installation by Tenant.
(a) All Tenant improvements and fixtures installed by Tenant
shall be new. Tenant shall not make or cause to be made any alterations,
additions or improvements other than decorating items or install or
cause to be installed any exterior signs, exterior lighting, plumbing
fixtures, shades or awnings or make any changes to the exterior of VIA
XXXXXX FINANCIAL PLAZA without first obtaining Landlord's written
approval and consent. Tenant shall present to the Landlord plans and
specifications for such work at the time approval is sought, and
simultaneously demonstrate to Landlord that the proposed alterations
comply with local zoning and building codes. Tenant shall pay to
Landlord the reasonable costs of Landlord's architect and engineers to
review such plans on behalf of the Landlord. Tenant shall not commence
work on any Tenant improvements until Tenant has received from Landlord,
Landlord's written approval of Tenant's plans and specifications and
Tenant shall have filed in the Public Records of Palm Beach County,
Florida a Notice of Commencement executed by the Tenant in compliance
with Florida Statutes 713.
(b) All construction work done by Tenant within the Leased
Premises shall be performed in a good and workmanlike manner, in
compliance with all governmental requirements, and in such manner as to
cause a minimum of interference with other construction in progress (if
any) and with the transaction of business in VIA XXXXXX FINANCIAL PLAZA.
Without limitation on the generality of the foregoing, except for the
initial construction of Tenant improvements in a newly constructed
Building, Landlord shall have the right to require that such work be
performed during hours when VIA XXXXXX FINANCIAL PLAZA is not open for
business, and in accordance with other rules and regulations which
Landlord may, from time to time prescribe. Tenant agrees to indemnify
Landlord against and hold Landlord harmless from any loss, liability or
damage, resulting from such work, and Tenant shall, if requested by
Landlord, furnish bond or other security satisfactory to Landlord
against any such loss, liability or damage. Tenant shall be liable to
Landlord for any damages resulting from labor disputes, strikes or
demonstrations resulting from Tenant's construction or alteration work
with the employment of non-union workers.
SECTION 6.02 Responsibility of Tenant.
All alterations, decorations, additions and improvements made by
the Tenant or made by the Landlord on the Tenant's behalf by agreement
under this Lease, shall remain the property of the Tenant for the term
of this Lease, or any extension or renewal thereof. Such alterations,
decorations, additions and improvements shall not be removed from the
premises without prior consent in writing from the Landlord. Upon
expiration of this Lease, or any renewal term thereof, the Landlord
shall have the option of requiring the Tenant to remove all such
alterations, decorations, additions and improvements and restore the
Leased Premises as provided in Section 7.02 hereof. If the Tenant fails
to remove such alterations, decorations, additions and improvements and
restore the Leased Premises, then such alterations, decorations,
additions and improvements shall become the property of the Landlord and
in such event, should Landlord so elect, Landlord may restore the
premises to its original condition for which cost, with allowance for
ordinary wear and tear, Tenant shall be responsible and shall pay
promptly upon demand.
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SECTION 6.03 Tenant Shall Discharge All Liens.
Nothing contained in this Lease shall be construed as a consent
on the part of the Landlord to subject the estate of the Landlord to
liability under the Mechanic's Lien Law of the State of Florida, it
being expressly understood that the Landlord's estate shall not be
subject to such liability. Tenant shall strictly comply with the
Mechanic's Lien Law of the State of Florida as set forth in Florida
Statutes Section 713. Prior to any contractor engaged by Tenant to
undertake improvements to the Leased Premises, Tenant shall notify the
contractor making any such improvements of the provisions of this
paragraph and such notification shall be in writing to the contractor
(with a copy to the Landlord) and such notice shall contain at a minimum
a verbatim recitation of the first two sentences of this Section 6.03.
In the event that a mechanic's claim of lien is filed against the
property in connection with any work performed by or on behalf of the
Tenant, the Tenant shall satisfy such claim, or shall transfer same to
security, within ten (10) days from the date of notice to tenant. In the
event that the Tenant fails to satisfy or transfer such claim within
said ten (10) day period, the Landlord may do so and thereafter charge
the Tenant, as additional rent, all costs incurred by the Landlord in
connection with satisfaction or transfer of such claim, including
attorneys' fees. Further, the Tenant agrees to indemnify, defend and
save the Landlord harmless from and against any damage or loss incurred
by the Landlord as a result of any such mechanics' claim of lien. If so
requested by the Landlord, the Tenant shall execute a short form or
memorandum of this Lease in the form set forth as Exhibit "L" attached
hereto, which may, in the Landlord's discretion be recorded in the
Public Records for the purpose of protecting the Landlord's estate from
mechanics' claims of lien, as provided in Florida Statutes Section
713.10. In the event such short form or memorandum of lease is executed,
the Tenant shall simultaneously execute and deliver to the Landlord an
instrument terminating the Tenant's interest in the real property upon
which the Leased Premises are located, which instrument may be recorded
by the Landlord at the expiration of the term of this Lease, or such
earlier termination hereof. Landlord has the right to record the
memorandum without execution by Tenant in the event Tenant fails to
execute the memorandum within seven (7) days of request. The security
deposit paid by the Tenant may be used by the Landlord for the
satisfaction or transfer of any mechanics' claim of lien, as provided in
this Section. This Section shall survive the termination of the Lease.
SECTION 6.04 Signs, Awnings and Canopies.
(a) Tenant will not place or permit to be placed or maintained
on any exterior door, wall or window of the Leased Premises of VIA
XXXXXX FINANCIAL PLAZA any sign, awnings or canopy, or advertising
matter or other thing of any kind, and will not place or maintain any
decoration, letter or advertising matter on the glass of any window or
door, nor will any illuminated sign be placed in the window display area
of the Leased Premises without first obtaining Landlord's written
approval and consent which may be arbitrarily withheld.
(b) Tenant shall promptly erect a sign in accordance with the
specifications as outlined in Exhibit "E", within the area designated by
the Landlord. Tenant further agrees that such signs, awning, canopy,
decoration, lettering, advertising matter or other thing as may be
approved shall be maintained in good condition and repair at all times
and shall conform to the criteria established from time to time by
Landlord for the VIA XXXXXX FINANCIAL PLAZA in the exercise of its sole
direction.
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(c) Notwithstanding the provisions of subparagraphs (a) and (b)
above, the Tenant acknowledges that prior to the installation of any
sign or other informational material which may be approved by the
Landlord, the Tenant shall obtain all governmental approvals for the
installation of such sign or informational material from all
governmental entities having jurisdiction over the Leased Premises,
including but not limited to, the city of Boca Raton. The approval of
the Landlord of any sign or informational material submitted by the
Tenant shall not be deemed an approval by any governmental entity and
the Tenant shall employ or engage professionals selected by the Tenant
to obtain any and all governmental approvals required prior to the
installation of such sign or informational material. Tenant acknowledges
and agrees that all signs and informational material must comply with
the ordinances and codes of the city of Boca Raton and any other
governmental entities having jurisdiction over such installation.
SECTION 6.05 Bonds.
Landlord shall have the right to require the Tenant to furnish a
performance bond or other security, in form satisfactory to Landlord,
for the prompt and faithful performance by Tenant of all work of Tenant
where the project cost will exceed Fifty Thousand Dollars ($50,000.00).
ARTICLE VII
Repairs and Maintenance of Leased Premises
SECTION 7.01 Responsibility of Landlord.
(a) Landlord agrees to repair and maintain in good order and
condition the roof, roof drains, outside walls, foundations and
structural portions, both interior and exterior, of the Leased Premises.
There is excepted from the preceding covenant, however, (i) repair or
replacement of broken plate or window glass (except in case of damage by
fire or other casualty covered by Landlord's fire and extended coverage
policy); (ii) doors, door closure devices, window and door frames,
moldings, locks and hardware; (iii) repair of damage caused directly or
indirectly by the negligence of the Tenant, its employees, agents,
contractors, customers, invitees; and (iv) interior repainting and
redecoration. In no event, however, shall Landlord be liable for damages
or injuries arising from the failure to make said repairs, nor shall
Landlord be liable for damages or injuries arising from the failure to
make said repairs, nor shall Landlord be liable for damages or injuries
arising from defective workmanship or materials in making any such
repairs. Tenant waives the provision of any law, now or hereafter in
effect or any right under common law, permitting Tenant to make repairs
at Landlord's expense. As to any item which Tenant believes requires
repair and maintenance and which is the responsibility of the Landlord
herein, Tenant shall provide Landlord with written notice of such
maintenance and repair items.
(b) Except as hereinabove provided in Subparagraph (a), Landlord
shall not be obligated or required to make any other repairs, and all
other portions of the Leased Premises shall be kept in good repair and
condition by Tenant, and at the end of the term of this Lease, Tenant
shall deliver the Leased Premises to Landlord in good repair and
condition, reasonable wear and tear and damage from fire and other
casualty excepted.
(c) Neither Landlord nor Landlord's agents or servants shall be
liable for any damages caused by or growing any
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breakage, leakage, getting out of order or defective condition of the
electric wiring, air conditioning or heating pipes or ducts and
equipment, closets, plumbing, appliances, sprinklers, other equipment,
or other facilities serving the Leased Premises excepting in any case
arising out of the negligence of the Landlord or Landlord's agents or
servants. Neither Landlord nor Landlord's agents or servants shall be
liable for any damages caused by, or growing out of any defect in VIA
XXXXXX FINANCIAL PLAZA or any part thereof, or in any building attached
or adjacent thereto or a part thereof, or in said Leased Premises or a
part thereof, or caused by, or growing out of fire, rain, wind or other
cause excepting in any case arising out of the negligence of the
Landlord or Landlord's agents or servants.
SECTION 7.02 Responsibilities of Tenant.
(a) Without limiting the generality of the foregoing
Subparagraph 7.01(a), Tenant agrees to repair and maintain in good order
and condition the non-structural interior portions of the Leased
Premises, including the doors, windows, plate and window glass, and
floor covering, plumbing, heating, air conditioning, electrical and
sewage system, facilities and appliances. In those instances where
Tenant repair or maintenance is required as a result of the Landlord's
negligence or the negligence of Landlord's employees, then Landlord
shall reimburse Tenant for such repairs or maintenance. Tenant agrees
with respect to the heating and air conditioning system to comply with
the terms of the "Heating and Air Conditioning Maintenance Provision"
which is attached hereto as Exhibit "F" and made a part of the Lease by
reference.
(b) Tenant will not install any equipment which exceeds the
capacity of the utility lines leading into the Leased Premises or the
Building of which the Leased Premises constitute a portion.
(c) Tenant, its employees, or agents, shall paint, drill or in
any way deface any walls, partitions, floors, wood, stone or ironwork
without Landlord's prior approval and written consent. not xxxx,
ceilings,
(d) Tenant shall comply with the requirements of all laws,
orders, ordinances and regulations of all governmental authorities and
will not permit any waste of property or same to be done and will take
good care of the Leased Premises at all times.
(e) If Tenant refuses or neglects to repair properly as required
hereunder and to the reasonable satisfaction of Landlord as soon as
reasonably possible after written demand, Landlord may make such repairs
without liability to Tenant for any loss or damage that may accrue to
Tenant's merchandise, fixtures, or other property, or to Tenant's
business by reason thereof and upon completion thereof, Tenant shall pay
Landlord's cost for making such repairs, plus twenty percent (20%) of
such cost for overhead, upon presentation of the xxxx therefor, as
additional rent. Said xxxx shall include interest at the rate of fifteen
percent (15%) per annum on said cost from the date of completion of
repairs by Landlord until paid by Tenant. In the event the Landlord
shall undertake any maintenance or repair in the course of which it
shall be determined that such maintenance or repair work was made
necessary by the negligence or willful act of Tenant or any of its
employees or agents or that the maintenance or repair is, under the
terms of this Lease, the responsibility of Tenant, Tenant shall pay
Landlord's costs therefor plus overhead and interest as above provided
in this Section.
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(f) At the expiration of the tenancy hereby created, Tenant
shall surrender the Leased Premises in the same condition as the Leased
Premises were in upon delivery of possession thereto under this Lease,
reasonable wear and tear excepted, and damage by unavoidable casualty
excepted, and shall surrender all keys for the Leased Premises to
Landlord. Tenant shall remove all its trade fixtures, leased equipment
and any alterations or improvements which Landlord requests to be
removed (excluding those improvements which Landlord has approved)
before surrendering the premises as aforesaid and shall repair any
damage to the Leased Premises caused thereby. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of the term of the Lease.
(g) Tenant shall at its own expense perform all janitorial and
cleaning services within the Leased Premises in order to keep same in a
neat, clean and orderly condition.
(h) Tenant shall give Landlord prompt written notice (and
telephonic notice in the case of an emergency) of any fire or damage
occurring on or to the Leased Premises.
(i) Tenant shall maintain and clean the Leased Premises,
including daily trash removal, window cleaning, bathroom cleaning and
other maintenance and cleaning requirements as adopted from time to time
by Landlord in accordance with the Maintenance and Cleaning Standards
For Tenants attached hereto and made a part hereof as Exhibit "G".
ARTICLE VIII
Insurance and Indemnity
SECTION 8.01 Liability Insurance.
Tenant shall, during the entire term hereof, keep in full force
and effect bodily injury and property damage comprehensive public
liability insurance with respect to the Leased Premises for the combined
single coverage of not less than $1,000,000.00. The policy shall name
Landlord, any person, firms or corporations designated by Landlord, and
Tenant as insured, and shall contain a clause that the insurer will not
cancel or change the insurance without first giving the Landlord fifteen
(15) days prior written notice. The insurance shall be written by a
company approved by Landlord and a copy of the policy or a certificate
of insurance shall be delivered to Landlord prior to the commencement of
the term of this Lease. Nothing herein shall be considered to limit the
liability of the Tenant under this Lease.
SECTION 8.02 Plate Glass Insurance.
The replacement of any plate glass or window glass damaged or
broken from any cause whatsoever in and about the Leased Premises shall
be Tenant's responsibility. Tenant shall, during the entire term hereof,
keep in full force and effect a policy of plate glass insurance covering
all the plate glass or window glass of the Leased Premises, in amounts
satisfactory to Landlord. The policy shall name Landlord and any person,
firm or corporation designated by Landlord, and Tenant as insured, and
shall contain a clause that the insurer will not cancel or change the
insurance without first giving the Landlord fifteen (15) days prior
written notice. The insurance shall be written by a company approved by
the Landlord and a copy of the policy or a certificate of insurance
shall be delivered to Landlord prior to the commencement of the term of
this Lease.
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SECTION 8.03 Fire and Extended Coverage Insurance.
Tenant shall at all times during the term hereof, and at its
cost and expense, maintain in effect, policies of insurance covering its
fixtures and improvements, equipment, and goods located in the Leased
Premises, in an amount not less than eighty percent (80%) of their
actual cash value, providing protection against any peril including
within the standard classification of "Fire and Extended Coverage",
together with insurance against sprinkler damage, vandalism, and
malicious mischief. The proceeds of such insurance, so long as the Lease
remains in effect, shall be used first to repair or replace the fixtures
and improvements within the Leased Premises.
SECTION 8.04 Increase in Fire Insurance Premium.
Tenant agrees that it will not keep, use, sell or offer for sale
in or upon the Leased Premises any article which may be prohibited by
the standard form of fire and extended risk insurance policy. Tenant
agrees to pay any increase in premiums for fire and extended coverage
insurance that may be charged during the term of this Lease on the
amount of such insurance which may be carried by Landlord on said
premises or the building of which they are a part, resulting from the
type of article being located in the Leased Premises, whether or not
Landlord has consented to the same. In determining whether increased
premiums are the result of Tenant's use of the Leased Premises, a
schedule issued by the organization making the insurance rate on the
Leased Premises, showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up the
fire insurance rate on the Leased Premises. Tenant agrees to promptly
make, at Tenant's cost, any repairs, alterations, changes and/or
improvements to equipment in the Leased Premises required by the company
issuing Landlord's fire insurance so as to avoid the cancellation of, or
the increase in premiums on, said insurance.
In the event Tenant's occupation and use of the Leased Premises
causes any increase of premium for the fire, boiler and/or casualty
rates on the Leased Premises or any part thereof above the rate for the
least hazardous type of occupancy legally permitted in the premises, the
Tenant shall pay the additional premium on the fire, boiler and/or
casualty insurance policies by reason thereof. The Tenant also shall pay
in such event, any additional premium on the rent insurance policy that
may be carried by the Landlord for its protection against rent loss
through fire or other casualty. Bills for such additional premiums shall
be rendered by Landlord to Tenant at such times as Landlord may elect
and shall be due from, and payable by Tenant when rendered, and the
amount thereof shall be deemed to be additional rent.
SECTION 8.05 Indemnification of Landlord.
Neither (i) Landlord, (ii) any superior lessor or any superior
mortgagee of the Landlord, nor (iii) any partner, director, officer,
agent, servant or employee of Landlord, any superior lessor or any
superior mortgagee, shall be liable to Tenant for any loss, injury or
damage to Tenant or to any other person, or to its or their property,
irrespective of the cause of such injury, damage or loss, unless caused
by or resulting from the sole negligence of Landlord, its agents,
servants or employees in the operation or maintenance of the Leased
Premises or the buildings, improvements and common facilities of VIA
XXXXXX FINANCIAL PLAZA, without contributory negligence on the part of
Tenant or any of its subtenants or licensees or its or their employees,
agents or contractors. Further, neither (i) Landlord, (ii) any superior
lessor or any superior mortgagee of
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the Landlord, nor (iii) any partner, director, officer, agent, servant
or employee of Landlord, any superior lessor or any superior mortgagee,
shall be liable (a) for any such damage caused by other tenants or
persons in, upon or about the buildings, improvements and common
facilities of VIA XXXXXX FINANCIAL PLAZA, or caused by operations in
construction of any private, public or quasi-public work, or (b) for
consequential damages arising out of any loss of use of the Leased
Premises or any equipment or facilities therein by Tenant or any person
claiming through or under Tenant.
Tenant shall indemnify and hold harmless Landlord and all
superior lessors and superior mortgagees and its and their respective
partners, directors, officers, agents and employees from and against any
and all claims arising from or in connection with (a) the conduct or
management of VIA XXXXXX FINANCIAL PLAZA or of any business therein, or
any work or thing whatsoever done, or any condition created (other than
by Landlord) in or about the VIA XXXXXX FINANCIAL PLAZA during the term
of this Lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Leased
Premises, (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, offices,
agents, employees or contractors, (c) any accident, injury or damage
whatever (unless caused by Landlord's negligence) occurring in, at or
upon the VIA XXXXXX FINANCIAL PLAZA, and (d) any breach or default by
Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; together with all costs, expenses and
liabilities incurred in or in connection with each such claim or action
or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses. In the event Landlord shall be made a
party to any litigation or proceeding commenced by or against Tenant,
them Tenant shall protect, indemnify and hold Landlord harmless and
Tenant shall pay to Landlord all costs, expenses and reasonable
attorneys' fees (for both trial and appellate levels) incurred or paid
by Landlord in connection with such litigation or proceeding. Tenant
shall also pay all costs, expenses and reasonable attorney's fees that
may be incurred or paid by Landlord in enforcing the covenants and
agreements in this Lease.
SECTION 8.06 Waiver of Subrogation.
Tenant waives (unless said waiver should invalidate any such
insurance) its right to recover damages against Landlord for any reason
whatsoever to the extent Tenant recovers indemnity from its insurance
carrier. Any insurance policy procured by Tenant which does not name
Landlord as a named insured shall, if obtainable, contain an express
waiver of any right of subrogation by the insurance company against the
Landlord.
Landlord waives (unless said waiver should invalidate any such
insurance) its right to recover damages against Tenant for any reason
whatsoever to the extent Landlord recovers indemnity from its insurance
carrier. Any insurance policy procured by Landlord which does not name
Tenant as a named insured shall, if obtainable, contain an express
waiver of any right of subrogation by the insurance company against the
Tenant.
ARTICLE IX
Utilities
Tenant shall be solely responsible for and promptly pay all
charges for water, gas, electricity, sewer charges or trash removal (if
any) or any other utility used or consumed in the leased premises. To
the extent that the Landlord supplies to the
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Leased Premises or to VIA XXXXXX FINANCIAL PLAZA water, gas,
electricity, sewer charges, trash removal, or any other utility used or
consumed in the Leased Premises or within VIA XXXXXX FINANCIAL PLAZA,
the cost of such services and utilities shall be included in the VIA
XXXXXX FINANCIAL PLAZA Operating Costs. In no event shall Landlord be
liable for an interruption, failure, or defect in the supply or
character of any such utilities furnished to the Leased Premises,
improvements or common facilities of VIA XXXXXX FINANCIAL PLAZA
(including but not limited to water rationing and electrical power
brownouts and blackouts), or any act or omission of the public or
private utility serving VIA XXXXXX FINANCIAL PLAZA or for any other
reason not attributable to Landlord. Tenant will at all times comply
with the rules, regulations, terms and conditions applicable to service,
equipment, wiring, and requirements of the public or private utility
supplying electricity to VIA XXXXXX FINANCIAL PLAZA. In the event that,
in Landlord's judgment, Tenant's electrical requirements necessitate
installation of additional risers, feeders or other proper and necessary
equipment, the same shall be installed by Landlord at Tenant's sole
expense, which shall be chargeable and collectible as additional rent
and paid with the next rental payment to Landlord after delivery of an
invoice to Tenant by the Landlord. Tenant shall also be required prior
to taking possession of the Leased Premises to pay to the Landlord any
and all meter charges for the Leased Premises if the Landlord has been
required to pay such charges by any private or governmental authority
having jurisdiction thereover. Tenant specifically acknowledges that
Landlord is not the supplier of any utility services including but not
limited to electrical service, telephone service and water service, and
the unavailability of such services to the Leased Premises due to
blackout, moratorium, rationing or any other reason will not constitute
or form the basis of a right by Tenant to xxxxx or adjust any rental
payments due hereunder, the Tenant hereby assuming all responsibility
and risks for obtaining such services.
ARTICLE X
Attornment and Subordination
SECTION 10.01 Attornment.
In the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under any mortgage made
by the Landlord covering the Leased Premises or in the event a deed is
given in lieu of foreclosure of any such mortgage, if requested to do
so, Tenant shall attorn to the purchaser or grantee in lieu of
foreclosure upon any such foreclosure or sale and recognize such
purchaser or grantee in lieu of foreclosure as the Landlord under this
Lease.
SECTION 10.02 Subordination.
Tenant agrees that this Lease and the interest of Tenant therein
shall be, and the same hereby is made subject and subordinated at all
times to all covenants, restrictions, easements and other encumbrances
now or hereafter affecting the fee title of VIA XXXXXX FINANCIAL PLAZA
and to all ground and underlying leases and to any mortgage in any
amounts and all advances made and to be made thereon, which may now or
hereafter be placed against or affect any or all of the land and/or any
or all of the buildings and improvements, including the Leased Premises,
now or at any time hereafter constituting a part of VIA XXXXXX FINANCIAL
PLAZA and/or any ground or underlying leases covering same, and to all
renewals, modifications, consolidations, participations, replacements
and extensions
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thereof. The term "Mortgages" as used herein shall be deemed to include
trust indentures and deeds of trust. The aforesaid provisions shall be
self-operative and no further instrument of subordination shall be
necessary unless required by any such ground or underlying lessors or
mortgagees. Should the Landlord or any ground or underlying lessors or
mortgagees desire confirmation of such subordination, then Tenant,
within ten (10) days following written request therefor, agrees to
execute and deliver, without charge, any and all documents (in form
acceptable to Landlord and such ground or underlying lessors or
mortgagees) subordinating this Lease and the Tenant's rights hereunder.
However, should any such ground or underlying lessors or any mortgagees
request that this Lease be made superior, rather than subordinate, to
any such ground or underlying lease and/or mortgage, then Tenant, within
ten (10) days following Landlord's written request therefor, agrees to
execute and deliver, without charge, any and all documents (in form
acceptable to Landlord and such ground or underlying lessors or
mortgagees) effectuating such priority.
SECTION 10.03 Non-Disturbance.
Notwithstanding anything contained herein to the contrary, the
foregoing shall be expressly conditioned upon Tenant's receipt of a
binding Non-Disturbance Agreement from all parties holding or otherwise
acquiring, now or in the future, any right, title, interest in or to the
Leased Premises or this Lease by virtue of any mortgage or deed of trust
superior to that of the Tenant in a form and content as set forth in
Exhibit M attached hereto and made a part hereof.
ARTICLE XI
Assignment and Subletting
SECTION 11.01 Consent Required.
Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, without the prior written consent of
Landlord, (a) assign or otherwise transfer this Lease or the term and
estate hereby granted, or offer or advertise to do so, (b) sublet the
Leased Premises or any part thereof, or offer or advertise to do so, or
allow the same to be used, occupied or utilized by anyone other than
Tenant, (c) mortgage, pledge, encumber or otherwise hypothecate this
Lease or the Leased Premises or any part thereof in any manner
whatsoever, or (d) permit the Leased Premises or any part thereof to be
occupied, or used for desk space, mailing privileges or otherwise, by
any person other than Tenant without in each instance obtaining the
prior written consent of Landlord; provided, however, (i) Tenant shall
have the right to assign or sublet the Leased Premises in whole or in
part provided that the assignee or subtenant shall be acceptable to the
Landlord and such assignee or subtenant shall be as credit worthy as
other occupants of VIA XXXXXX FINANCIAL PLAZA and shall conduct a
business consistent with and meet the standards imposed on other
occupants of VIA XXXXXX FINANCIAL PLAZA and further the occupancy by
such assignee or subtenant shall not result in a breach of or violation
of any term of any lease between the Landlord and any other occupant of
VIA XXXXXX FINANCIAL PLAZA; or (ii) Tenant shall have the right (with 60
days prior written notice to the Landlord) to assign or sublet the
Leased Premises to a related entity owned by the parent entity of the
Tenant which parent entity shall have not less than a twenty percent
(20%) ownership interest in the related entity to which the Tenant
assigns or sublets and such assignee or subtenant shall conduct a
business consistent with the Tenant and meet the standards imposed on
other occupants of XXX XXXXXX
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XXXXXXXXX XXXXX and further the occupancy by the assignee or subtenant
shall not result in a breach of or violation of any term of any lease
between the Landlord and any other occupant of VIA XXXXXX FINANCIAL
PLAZA.
Any assignment made pursuant to subparagraph 11.01(i) above
shall be subject to the following provisions: It is further agreed
between the Landlord and Tenant that the Landlord shall be entitled to
receive any increase in the rent or other considerations paid by an
assignee or subtenant in excess of the rental obligations of the Tenant
to the Landlord as set forth in this Lease. The consent by Landlord to
any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting.
It is understood that Landlord may refuse to grant consent to any
assignment or subletting by Tenant with or without cause and without
stating in its refusal to grant such consent the basis or reasons for
which it refuses to grant such consent (whether arbitrarily or
otherwise) and may not, under any circumstances, be required or
compelled to grant such consent. If this Lease be assigned without
consent of Landlord, or if the Leased Premises or any part thereof be
underlet or occupied by any party other than Tenant without consent of
Landlord, Landlord may collect rent from the assignee, subtenant or
occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as Tenant1 or a release of Tenant from
the further performance by Tenant of the covenants on the part of Tenant
herein contained, and further provided that Landlord shall have the
option of terminating this Lease on written notice to Tenant given
within twenty (20) days after receipt of the request for Landlord's
approval or notice to Landlord of such assignment or subletting;
provided, however, Tenant may elect to withdraw its request for
assignment or subletting and the Lease shall not terminate as provided
for hereinbefore. This prohibition against assignment or subletting
shall be construed to include prohibition against any assignment or
subleasing by operation of law, legal process, receivership, bankruptcy
or otherwise, whether voluntary or involuntary. Notwithstanding any
assignment or sublease, Tenant shall remain fully liable on this Lease
and shall not be released from performing any of the terms, covenants
and conditions of this Lease.
(b) The Tenant shall have the obligation to pay a reasonable
administrative fee in connection with such assignment.
SECTION 11.02 significant Change of Corporate Ownership.
(a) If Tenant is a corporation, the provisions of Paragraph (a)
of Section 11.01 shall apply to a transfer (by one or more transfers) of
eighty percent (80%) interest of the stock of Tenant as if such transfer
of eighty percent (80%) of the stock of Tenant were an assignment of
this Lease; but said provision shall not apply to transactions with a
corporation into or with which Tenant is merged or consolidated or to
which substantially all of Tenant's assets are transferred or to any
corporation which controls or is controlled by Tenant or is under common
control with Tenant, provided that in any of such events (i) the
successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the greater
of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of the Tenant herein
named on the date of this Lease, and (ii) proof satisfactory to Landlord
of such net worth shall have been delivered to Landlord at least ten
(10) days prior to the effective date of any such transaction, (iii)
Landlord shall received at least ten (10) days prior to the effective
date of
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any such transaction a duplicate original instrument of assignment in
form and substance satisfactory to Landlord, duly executed by Tenant,
and (iv) Landlord shall have received at least ten (10) days prior to
the effective date of any such transaction an original instrument in
form and substance satisfactory to Landlord, duly executed by the
assignee, in which such assignee assumes (as of the Commencement Date)
observance and performance of, and agrees to be personally bound by, all
of the terms, covenants and conditions of this Lease on Tenant's part to
be performed and observed.
(b) The Tenant shall have the obligation to pay a reasonable
administrative fee in connection with such assignment.
SECTION 11.03 Termination at Landlord's Election.
Notwithstanding anything to the contrary contained in this
Article, if Tenant shall at any time or times during the term of this
Lease desire to assign this Lease or sublet all or any portion of the
Leased Premises, Tenant shall give notice thereof to Landlord, which
notice shall state whether Tenant desires to assign this Lease or sublet
all or a portion of the Leased Premises and shall further state the
desire commencement and Expiration Date of any subletting or the desired
effective date of any assignment, as the case may be (which commencement
date or effective date shall in no event be earlier than sixty (60) days
following the giving of such notice). If a portion of the Leased
Premises is proposed to be sublet, such notice shall be accompanied by a
diagram identifying the portion to be so sublet. Such notice shall be
deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option, (i) terminate this Lease (if the proposed
transaction is an assignment or a sublease of all or substantially all
of the Leased Premises), or (ii) terminate this Lease with respect to
the space covered by the proposed sublease (if the proposed transaction
is a sublease of part of the Leased Premises). Said option may be
exercised by Landlord by notice to Tenant at any time within sixty (60)
days after such notice has been given by Tenant to Landlord provided,
however, if Landlord elects to terminate, the Tenant shall have the
option of withdrawing the proposed assignment or subletting and this
Lease shall continue in full force and effect; and during such 60-day
period Tenant shall not assign this Lease or sublet such space to any
person. If Landlord exercises its option to terminate this Lease, then,
this Lease shall end and expire on the date that such assignment or
sublet was to be effective or commence, as the case may be, and the
Fixed Minimum Annual Rent and Additional Rent shall be paid and
apportioned to such date. If Landlord exercises its option to terminate
this Lease with respect to the space covered by Tenant's proposed
sublease in any case where Tenant desires to sublet part of the Leased
Premises, then (a) this Lease shall end and expire with respect to such
part of the Leased Premises on the date that the proposed sublease was
to commence; (b) from and after such date the Fixed Minimum Annual Rent
and Additional Rent shall be adjusted, based upon the proportion that
the rentable area of the Leased Premises remaining bears to the total
rentable area of the Leased Premises; and (c) Tenant shall pay to
Landlord, upon demand, as Additional Rent hereunder the costs incurred
by Landlord in physically separating such part of the Leased Premises
from the balance of the Leased Premises and in complying with any laws
and requirements of any public authorities relating to such separation.
SECTION 11.04 Assignment by Tenant.
Any assignment or transfer, whether made with Landlord's consent
or without Landlord's consent, shall be made only if, and shall not be
effective until, the assignee shall execute
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acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the
obligations of this Lease on the part of Tenant to be performed or
observed and whereby the assignee shall agree that the provisions in
Section 11.01 shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers. The original named Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of
this Lease, and notwithstanding the acceptance of Fixed Minimum Annual
Rent and/or Additional Rent by Landlord from an assignee, transferee, or
any other party, the original named Tenant shall remain fully liable for
the payment of the Fixed Minimum Annual Rent and Additional Rent and for
the other obligations of this Lease on the part of Tenant to be
performed or observed.
SECTION 11.05 Assignment by Landlord.
In the event of the transfer and assignment by Landlord of its
interest in this Lease and in the building containing the Leased
Premises to a person expressly assuming Landlord's obligations under
this Lease, Landlord shall thereby be released from any further
obligations hereunder, and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such
obligations.
ARTICLE XII
Waste, Governmental Regulations
SECTION 12.01 Waste or Nuisance
Tenant shall not commit or suffer to be committed any waste upon
the Leased Premises or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in VIA XXXXXX FINANCIAL
PLAZA, or which may adversely affect Landlord's interest in the Leased
Premises or VIA XXXXXX FINANCIAL PLAZA. Tenant shall abide by and comply
with the Maintenance and Cleaning Standards for Tenants attached hereto
and made a part hereof as Exhibit "G" as adopted and amended from time
to time by Landlord.
SECTION 12.02 Governmental Regulations.
Tenant shall, at Tenant's sole cost and expense, comply with all
county, municipal, state, federal laws, orders, ordinances and other
applicable requirements of all governmental authorities, now in force,
or which may hereafter be in force, pertaining to, or affecting the
condition, use or occupancy of the Leased Premises, and shall faithfully
observe in the use and occupancy of the Leased Premises all municipal
and county ordinances and state and federal statutes now in force or
which may hereafter be in force. Tenant shall indemnify, defend and save
Landlord harmless from all costs, losses, expenses or damages resulting
from Tenant's failure to perform its obligations under this Section.
If the Tenant is required, as a result of the provisions of this
paragraph, to undertake improvements to the Leased Premises, then in
that event, the Landlord shall pay for such improvements and the Tenant
shall pay as additional rent from the date of the completion of such
improvements a prorated amount (including interest on the amount paid by
the Landlord for such improvements at a rate equal to First Union
National Bank of Florida's Prime Rate plus one percent (1%)) determined
by amortizing the reasonable life of such improvements in monthly
payments, which
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monthly payments shall be additional rent for the remaining term of this
Lease.
ARTICLE XIII
Rules and Regulations
Tenant agrees to comply with and abide by the Rules and
Regulations of VIA XXXXXX FINANCIAL PLAZA attached hereto and made a
part hereof as Exhibit "H" as adopted and amended from time to time by
Landlord. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and
Regulations against any other tenant or any employees or agents of any
other tenant, provided such Rules and Regulations are enforced uniformly
and in a non-discriminatory manner and Landlord shall not be liable to
Tenant for violation of the Rules and Regulations by any other tenant or
its employees, agents, invitees or licensees.
ARTICLE XIV
Advertising, Etc.
SECTION 14.01 Solicitation of Business.
Tenant and Tenant's employees and agents shall not solicit
business in the parking or other common areas, nor shall Tenant
distribute any handbills or other advertising matter in the common areas
and specifically on the automobiles parked in the parking areas. Tenant
and Tenant's employees and agents shall not display, advertise or
disseminate any visual or auditory advertising or business information
from a parked or moving vehicle within VIA XXXXXX FINANCIAL PLAZA,
including but not limited to window and bumper stickers or sun shades or
blinds, painting or other implementation of advertising materials
affixed to a vehicle and the use of noise producing devises to either
draw attention to or communicate advertising or promotional information.
SECTION 14.02 Advertised Name and Address.
Tenant shall use as its advertised street address the name of
VIA XXXXXX FINANCIAL PLAZA. Tenant shall not use the name of VIA XXXXXX
FINANCIAL PLAZA for any purpose other than as the address of the
business to be conducted by Tenant in the Leased Premises and Tenant
shall not acquire any property right in or to any name which contains
the name of VIA XXXXXX FINANCIAL PLAZA as a part thereof. Any permitted
use by Tenant of the name of VIA XXXXXX FINANCIAL PLAZA during the term
of the Lease shall not permit Tenant to use, and Tenant shall not use,
such name of VIA XXXXXX FINANCIAL PLAZA either after the termination of
this Lease or at any other location. Tenant shall not use the name of
the Landlord in any advertisement, or otherwise. Tenant shall use only
Tenant's name as set forth in Section (f) of the Lease Summary and
Tenant's trade name as set forth in Section (g) of the Lease Summary in
its advertising and promotional activities and shall not use any other
name in connection with the Leased Premises.
SECTION 14.03 Letters and Marks.
Tenant agrees to use in its advertising and promotional
activities for its business in the Leased Premises such references to
the name of VIA XXXXXX FINANCIAL PLAZA and such identifying lettering,
marks or symbols referred to VIA XXXXXX FINANCIAL PLAZA in its address
for the Leased Premises and shall
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subscribe to a listing in the yellow pages of the local telephone
directory which shall be printed in bold type.
ARTICLE XV
Destruction of Leased Premises
SECTION 15.01 Total or Partial Destruction.
If VIA XXXXXX FINANCIAL PLAZA shall be damaged by fire, the
elements, unavoidable accident or other casualty, without the fault of
Tenant, but are not thereby rendered untenantable in whole or in part,
Landlord shall at its own expense cause such damage, to be repaired, but
only to the extent of Landlord's original obligation to construct
pursuant to Section 3.01, and the rent and other charges shall not be
abated. If by reason of such occurrence, the Leased Premises shall be
rendered untenantable only in part, Landlord shall at its own expense
cause the damage, except Tenant's improvements, equipment and trade
fixtures, to be repaired, but only to the extent of Landlord's original
obligation to construct pursuant to Section 3.01, and the fixed minimum
rent meanwhile shall not be abated as to the portion of the premises
rendered untenantable; provided, however, Landlord shall have the right,
to be exercised by notice to Tenant within sixty (60) days after said
occurrence, to elect not to repair such damage and to cancel and
terminate this Lease effective as of a date stipulated in Landlord's
notice, which shall not be earlier than thirty (30) days nor later than
sixty (60) days after the giving of such notice. If the premises shall
be rendered wholly untenantable by reason of such occurrence, the
Landlord shall at its own expense cause such damage, to be repaired, but
only to the extent of the Landlord's original obligation to construct
pursuant to Section 3.01, and the fixed minimum rent meanwhile shall not
xxxxx in whole or in part except that Landlord shall have the right, to
be exercised by notice to Tenant within sixty (60) days after said
occurrence, to elect not to reconstruct the destroyed premises, and in
such event this Lease and the tenancy hereby created shall cease as of
the date of the said occurrence. If Landlord shall elect to reconstruct,
then Landlord shall have a period of nine (9) months from the date
Landlord issues its notice to Tenant to build and complete the
improvements to the extent of the Landlord's original obligation to
construct pursuant to Section 3.01. Tenant specifically acknowledges the
obligation to maintain insurance coverage at Tenant's expense to pay the
rent costs incurred by Tenant and due Landlord during any period which
the Landlord is partially or totally repairing or reconstructing the
damage or casualty to VIA XXXXXX FINANCIAL PLAZA. Nothing in this
Section shall be construed to permit the abatement in whole or in part
of the charges for operating costs, common area maintenance, real estate
taxes attributable, and other charges set forth in Article II of this
Lease to any period during which the Leased Premises shall be in
untenantable condition, nor shall there be any abatement for any other
item due Landlord by Tenant pursuant to the terms of this Lease.
SECTION 15.02 Partial Destruction of VIA XXXXXX FINANCIAL PLAZA.
In the event that fifty percent (50%) or more of the rentable
area of VIA XXXXXX FINANCIAL PLAZA shall be damaged or destroyed by fire
or other cause, notwithstanding any other provisions contained herein
and that the Leased Premises may be unaffected by such fire or other
cause, Landlord shall have the right, to be exercised by notice in
writing delivered to Tenant within sixty (60) days after said
occurrence, to elect to cancel and terminate this Lease. Upon the giving
of such notice to Tenant, the term of this Lease shall expire by lapse
of time upon
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the third day after such notice is given, and Tenant shall vacate the
Lease Premises and surrender the same to Landlord.
SECTION 15.03 Reconstruction of Improvements.
In the event of any reconstruction of the Leased Premises under
this Section, said reconstruction shall be in substantial conformity
with the provisions of Exhibit "C" hereof to the extent of the work as
therein set forth as "Landlord's Work". Tenant, at its sole cost and
expense, shall be responsible for the repair and restoration of all
items set forth as "Tenant's Work" in Exhibit "D" and the replacement of
its stock in trade fixtures, furniture, furnishings and equipment.
Tenant shall commence the installation of fixtures, equipment, and
merchandise (if any) hereof promptly upon delivery to it of possession
of the Leased Premises and shall diligently prosecute such installation
to completion.
ARTICLE XVI
Eminent Domain
SECTION 16.01 Total Condemnation.
If the whole of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or
purpose, then the term of this Lease shall cease and terminate as of the
date of title vesting in such proceeding and all rentals and other
charges shall be paid up to that date and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease.
SECTION 16.02 Partial Condemnation.
If any part of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or
purpose, and in the event that such partial taking or condemnation shall
render the Leased Premises unsuitable for the business of the Tenant
(taking into account applicable parking requirements), then Landlord and
Tenant shall each have the right to terminate this Lease by notice given
to the other within sixty (60) days after the date of title vesting in
such proceeding and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease. In the event of a partial
taking or condemnation which is not extensive enough to render the
premises unsuitable for the business of the Tenant, then Landlord shall
promptly restore the Leased Premises (exclusive of Tenant's
improvements, Tenant's equipment and trade fixtures) to a condition
comparable to its condition at the time of such condemnation less the
portion lost in the taking and the building of which the Leased Premises
forms a part to the extent necessary to constitute the portion of the
building not so taken as a complete architectural unit; provided that
Landlord shall not in any event be required to spend for such repair,
restoration or alteration work an amount in excess of the respective
amounts received by Landlord as damages for the taking of such part of
the Leased Premises and of the building of which the same forms a part.
As used herein, the amount "received by Landlord" shall mean that
portion of the award or damages in condemnation received by Landlord
from the condemning authority which is free and clear of all prior
claims or collections by the holders of any mortgages or deeds of trust
or any ground or underlying lessors, and this Lease shall continue in
full force and effect except that the Fixed Minimum Annual Rent shall be
reduced in proportion to the portion of the Leased Premises lost in the
taking. If more than twenty percent (20%) of the floor area of the
buildings in VIA XXXXXX FINANCIAL PLAZA shall be taken as
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aforesaid (whether or not the Leased Premises shall be affected by the
taking), Landlord shall have the right to terminate this Lease by notice
to Tenant given within sixty (60) days after the date of title vesting
in such proceeding and Tenant shall have no claim against Landlord for
the value of the unexpired term of this Lease.
SECTION 16.03 Landlord's Damages.
In the event of any condemnation or taking as hereinabove
provided, whether whole or partial, the Tenant shall not be entitled to
any part of the award, as damages or otherwise, for such condemnation
and Landlord is to receive the full amount of such award, the Tenant
hereby expressly waiving any right or claim to any part thereof.
SECTION 16.04 Tenant's Damages.
Although all damages in the event of any condemnation are to
belong to the Landlord whether such damages are awarded as compensation
for diminution in value of the Leasehold or the fee of the Leased
Premises, Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on
account of any damage to Tenant's business by reason of the condemnation
and for or on account of any cost or loss to which Tenant might be put
in removing Tenant's merchandise, furniture, fixtures, leasehold
improvements and equipment, provided no such claim shall diminish or
otherwise adversely affect Landlord's award. Each party agrees to
execute and deliver to the other all instruments that may be required to
effectuate the provisions of Section 16.03 and this Section 16.04.
SECTION 16.05 Sale Under Threat of Condemnation.
A sale by Landlord to any authority having the power of eminent
domain, either under threat of condemnation or while condemnation
proceedings are pending, shall be deemed a taking under the power of
eminent domain for all purposes under this Article.
ARTICLE XVII
Default of Tenant
SECTION 17.01 Events of Default.
Upon the happening of one or more of the events as expressed
below in (a) to (j), inclusive (individually and collectively, "Event of
Default"), the Landlord shall have any and all rights and remedies
hereinafter set forth:
(a) In the event Tenant should fail to pay any monthly
installment of rent or any other sums required to be paid hereunder
within five (5) days from and when the same become due.
(b) In the event a petition in bankruptcy (including Chapter X
and Chapter XI bankruptcy proceedings or any other reorganization
proceedings under the Bankruptcy Act) be filed by the Tenant, or be
filed against Tenant, and such petition is not dismissed within thirty
(30) days from the filing thereof, or in the event Tenant is adjudged a
bankrupt.
(c) In the event an assignment for the benefit of creditors is
made by Tenant.
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(d) In the event of an appointment by any court of a receiver or
other court officer of Tenant's property and such receivership is not
dismissed within thirty (30) days from such appointment.
(e) In the event Tenant removes, attempts to remove, or permits
to be removed from the Leased Premises, except in the usual course of
trade, the goods, furniture, effects or other property of the Tenant
brought thereon.
(f) In the event Tenant, before the expiration of the term
hereof and without the written consent of the Landlord, vacates the
Leased Premises or abandons the possession thereof, or uses the same for
purposes other than the purposes for which the same are hereby leased.
(g) In the event an execution or other legal process is levied
upon the goods, furniture, effects or other property of Tenant brought
on the Leased Premises, or upon the interest of Tenant in this Lease,
and the same is not satisfied or dismissed within ten (10) days from
this levy.
(h) In the event Tenant abandons or fails to occupy the Leased
Premises or continuously operate Tenant's business within the Leased
Premises during the lease term.
(i) In the event Tenant fails to keep, observe or perform any of
the other terms, conditions or covenants on the part of Tenant herein to
be kept, observed and performed for more than ten (10) days after
written notice thereof is given by Landlord to Tenant specifying the
nature of such default, or if the default so specified shall be of such
a nature that the same cannot reasonably be cured or remedied within
said ten (10) day period, if Tenant shall not in good faith have
commenced the curing or remedying of such default within such ten (10)
day period and shall not thereafter continuously and diligently proceed
therewith to completion.
(j) Tenant shall not place a load upon any floor of the Leased
Premises exceeding the floor load per square foot which such floor was
designed to carry. Any load exceeding the floor load per square foot
maximum, must be placed by Tenant at Tenant's expense so as to safely
distribute the weight in accordance with engineering standards which
Tenant shall obtain from Landlord's engineer at Tenant's expense.
Business machines and mechanical equipment shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient in
Landlord's reasonable judgment to absorb and prevent vibration, noise
and annoyance. If the Leased Premises be or become infested with insects
or vermin as a result of the use or any misuse or neglect of the Leased
Premises by Tenant, its agents, employees, visitors or licensees, Tenant
shall at Tenant's expense cause the same to be exterminated from time to
time to the reasonable satisfaction of Landlord and shall employ such
exterminators and such exterminating company or companies as shall be
reasonably approved by Landlord.
SECTION 17.02 Remedies of Landlord.
(a) In the event of any such default or breach, Landlord shall
have the immediate right to re-enter the Leased Premises, either by
summary proceedings, by force or otherwise, and to dispossess Tenant and
all other occupants therefrom and remove and dispose of all property
therein in the manner provided in subdivision (c) of this Section, all
without service of any notice of intention to re-enter and without
Landlord being deemed guilty of trespass or becoming liable for any loss
or damage
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which may be occasioned thereby. Landlord shall also have the right, at
the option of Landlord, to terminate this Lease upon three (3) days
written notice to Tenant, and to thereupon reenter and take possession
of the said premises. In the event of any such default or breach,
Landlord shall have the right, at its option, from time to time, without
terminating this Lease, to reenter and re-let the premises, or any part
thereof, with or without legal process, as the agent and for the account
of Tenant upon such terms and conditions as Landlord may deem advisable
or satisfactory, in which even the rents received on such re-letting
shall be applied first to the expenses of such re-letting and collection
including but not limited to, necessary renovation and alterations of
the Leased Premises, reasonable attorney's fees, any real estate
commissions paid, and thereafter toward payment of all sums due or which
become due Landlord hereunder, and if a sufficient sum shall not be thus
realized or secured to pay such sums and other charges, (i) at
Landlord's option, Tenant shall pay Landlord any deficiency monthly,
notwithstanding Landlord may have received rental in excess of the
rental stipulated in this Lease in previous or subsequent months, and
Landlord may bring an action therefor as such monthly deficiency shall
arise, or (ii) at Landlord's option, the entire deficiency, which is
subject to ascertainment for the remaining term of this Lease, shall be
immediately due and payable by Tenant. Nothing herein, however, shall be
construed to require Landlord to re-enter in any event. The Landlord
shall not, in any event, be required to pay Tenant any surplus of any
sums received by Landlord on a re-letting of said premises in excess of
the rent provided in this Lease.
(b) In the event of any such default or breach, the Landlord
shall have the right, at its option, to declare the rents for the entire
remaining term and other indebtedness, if any, immediately due and
payable without regard to whether or not possession shall have been
surrendered to or taken by Landlord, and may commence action immediately
thereupon and recover judgement therefor which judgement shall be
rendered for the then present value of the aforedescribed sum.
(c) The Landlord in addition to other rights and remedies it may
have, shall have the right to remove all or any part of the, Tenant's
property from said premises and any property removed may be stored in
any public warehouse or elsewhere at the cost of, and for the account of
Tenant and the Landlord shall not be responsible for the care or
safekeeping thereof, and the Tenant hereby waives any and all loss,
destruction and/or damage or injury which may be occasioned by any of
the aforesaid acts.
(d) No such re-entry or taking possession of said Leased
Premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such intention
is given to Tenant. Notwithstanding any such re-letting without
termination, Landlord may at all times thereafter, elect to terminate
this Lease for such previous default or breach. Any such re-entry shall
be allowed by Tenant without hindrance and Landlord shall not be liable
in damages for any such re-entry, or guilty of trespass or forcible
entry.
(e) Any and all rights, remedies and options given in this Lease
to Landlord shall be cumulative and in addition to and without waiver of
or in derogation of any right or remedy given to it under any law now or
hereafter in effect.
SECTION 17.03 Waiver.
The waiver by Landlord of any breach of any term, condition or
covenant herein contained shall not be a waiver of such term, condition
or covenant, or any subsequent breach of the same or any other term,
condition or covenant herein contained. The
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consent or approval by Landlord to or of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar
act by Tenant. No re-entry hereunder shall bar the recovery of rents or
damages for the breach of any of the terms, conditions or covenants on
the part of Tenant herein contained. The receipt of rent after breach or
condition broken, or delay on the part of Landlord to enforce any right
hereunder, shall not be deemed a waiver or forfeiture, or a waiver of
the right of Landlord to annul this Lease or to reenter said Leased
Premises or to re-let same.
SECTION 17.04 Past Due Payments.
In the event any payment due under this Lease should not be paid
on the due date, Tenant agrees to pay interest on the amount which is
delinquent at the highest rate permitted under the laws of the state of
Florida, for such delinquent payment until made. In addition thereto, if
Tenant shall fail to pay any rents, additional rents or any other
payments due under this Lease within five (5) days of the due date
thereof, or in the event any check, bank draft, order for payment or
negotiable instrument given to Landlord for any payment under this Lease
shall be dishonored for any reason whatsoever not attributable to
Landlord, then Tenant shall also pay to Landlord an administrative
charge equal to whichever is the greater of the following: (i) One
Hundred Dollars ($100.00), or (ii) five percent (5%) of such unpaid sum.
Tenant recognizes and agrees that the charge which Landlord is entitled
to make upon the conditions stated in this Section represents, at the
time this Lease is made, a fair and reasonable estimate and liquidation
of the cost of Landlord in the administration of VIA XXXXXX FINANCIAL
PLAZA resulting to Landlord from the events described which costs are
not contemplated or included in any other rental charges provided to be
paid by Tenant to Landlord in this Lease. The provisions herein for
administration charges shall not be construed to extend the date for
payment of any sums required to be paid by Tenant hereunder or to
relieve Tenant of its obligation to pay all such sums at the time or
times herein stipulated.
SECTION 17.05 Legal Expenses.
In the event that it shall become necessary for Landlord to
employ the services of an attorney to enforce any of its rights under
this Lease or to collect any sums due to it under this Lease or to
remedy the breach of any covenant of this Lease on the part of the
Tenant to be kept or performed, regardless of whether suit be brought,
Tenant shall pay to Landlord such fee as shall be charged by Landlord's
attorney for such services. Should suit be brought for the recovery of
possession of the Leased Premises, or for rent or any other sum due
Landlord under this Lease, or because of the breach of any of Tenant's
covenants under this Lease, Tenant shall pay to Landlord all expenses of
such suit and any appeal thereof, including a reasonable attorney's fee.
In the event that it shall become necessary for Tenant to employ
the services of an attorney to enforce any of its rights under this
Lease or to collect any sums due to it under this Lease or to remedy the
breach of any covenant of this Lease on the part of the Landlord to be
kept or performed, regardless of whether suit be brought, Landlord shall
pay to Tenant such fee as shall be charged by Tenant's attorney for such
services. Should suit be brought for any sum due Tenant under this
Lease, or because of the breach of any of Landlord's covenants under
this Lease, Landlord shall pay to Tenant all expenses of such
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suit and any appeal thereof, including a reasonable attorney's fee.
ARTICLE XVIII
Access by Landlord
SECTION 18.01 Right of Entry.
(a) Provided the Landlord has given reasonable notice to the
Tenant (except in the case of an emergency), Landlord and Landlord's
agents shall have the right to enter the Leased Premises at all
reasonable times to examine the same, and to show them to prospective
purchasers or lessees of the Leased Premises, and to make such repairs,
or alterations, improvements or additions as Landlord may deem necessary
or desirable, and Landlord shall be allowed to take all material into
and upon said premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part and the rent
reserved shall in no way xxxxx while said repairs, alterations,
improvements or additions are being made unless Tenant is prevented from
operating in the Leased Premises in whole or in part, in which event
rent shall be proportionately abated during said period. During the six
(6) months prior to the expiration of the term of this Lease or any
renewal term, Landlord may exhibit the premises to prospective tenants
or purchasers, and place upon the premises the usual notices "To Let" or
"For Rent" which notices Tenant shall permit to remain thereon without
molestation. If Tenant shall not be personally present to open and
permit an entry into said premises, at any time, when for any reason an
entry therein shall be necessary or permissible, Landlord or Landlord's
agents may enter the same without in any manner affecting the
obligations and covenants of this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any
obligation, responsibility or liability whatsoever, for the care,
maintenance or repair of the Building or any part thereof, except as
otherwise herein specifically provided. Landlord and Tenant agree that
Landlord shall not unreasonably interfere with Tenant's business
operations in connection with Landlord's activities under this
subparagraph (a) except in the case of an emergency.
(b) Except for the space within the inside surfaces of all
walls, drop ceilings, floors, windows and doors bounding the Leased
Premises, all of the Building including without limitations exterior
building walls, atrium walls, core corridor walls and doors, terraces or
roofs adjacent to or above the Leased Premises and any space in or
adjacent to the Leased Premises used for shafts, stacks, pipes,
conduits, utilities rooms, ducts, which service other portions of the
Building in addition to or exclusive of the Leased Premises, are
reserved to the Landlord for the purposes of maintenance, decoration,
repair, operation, construction of additions to the Building or other
leased premises within the Building. Landlord reserves the right and
Tenant shall permit Landlord and persons authorized by Landlord to
access the aforedescribed facilities and to install, erect, use and
maintain the aforedescribed facilities in and through the Leased
Premises. Landlord and persons authorized by the Landlord shall have the
right to enter and/or pass through the Leased Premises at any time or
times to make such repairs, alterations, additions and improvements in
or to the Leased Premises and/or in or to the Building or its
improvements and common facilities as Landlord is required or desires to
make. Landlord and such authorized persons shall be allowed to take all
materials into and upon the Leased Premises that may be required in
connection therewith, without liability to Tenant and without
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any reduction of Tenant's covenants and/or obligations hereunder.
(c) If at any time any windows of the Leased Premises are either
temporarily darkened or obstructed by reason of any repairs,
improvements, maintenance and/or cleaning in or about the Building or
covered by any translucent material for the purpose of energy
conservation, or if any part of the Building, other than the Leased
Premises, is temporarily or permanently closed or inoperable, the same
shall be without liability to Landlord and without any reduction or
diminution of Tenant's obligations under this Lease. Neither this Lease
nor any use by Tenant, shall give Tenant any easement or other right in
or to (i) the use of any door or any passage or any concourse or other
common facility within VIA XXXXXX FINANCIAL PLAZA, or (ii) the use of
such doors, passages, concourses and common facilities for access to any
other building or any public conveniences or transportation facilities.
Tenant acknowledges that the use of such doors, passages, concourses and
common facilities may without notice to Tenant be regulated or
discontinued at any time by Landlord.
(d) If an excavation shall be made upon land adjacent to or
under the Building in which the Leased Premises is located, or shall be
authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter the Leased
Premises for the purpose of performing such work as said person shall
deem necessary or desirable to preserve and protect the Building from
injury or damage to support the same by proper foundations, without any
claim for damages or liability against Landlord and without reducing or
otherwise affecting Tenant's obligations under this Lease.
SECTION 18.02 Roof.
Use of the roof and/or air space above the Leased Premises is
reserved exclusively to the Landlord. Any use of the roof and/or air
space above the Lease Premises or the Building shall be controlled by
the terms and conditions of Exhibit "K" attached hereto and made a part
hereof; provided, however, any such use is subject to the approval of
all governmental authorities having jurisdiction over such use (and the
installation of facilities or improvements to accomplish such use) and
nothing contained herein shall be interpreted or construed as a
representation or implication by the Landlord that the use (or the
installation of facilities or improvements to accomplish such use) will
receive the consent or approval of any of the governmental authorities
having jurisdiction and approval rights or control of the use.
ARTICLE XIX
Tenant's Property
SECTION 19.01 Taxes on Leasehold or Personalty.
Tenant shall be responsible for and shall pay before delinquent
all municipal, county or state taxes assessed during the term of this
Lease against any leasehold interest or personal property of any kind,
owned by or placed in, upon or about the Leased Premises by the Tenant.
SECTION 19.02 Loss and Damage.
Landlord shall not be responsible for any damage to property of
Tenant or of others located on the Leased Premises nor for the loss of
or damage to any property of Tenant or others by theft or otherwise
except for the sole negligence of the Landlord or the sole negligence of
the Landlord's employees. Landlord shall not
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be liable for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water, rain,
or leaks from any part of the Leased Premises or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or
from any other place or by dampness or by any other cause of whatsoever
nature. Landlord shall not be liable for any such damage caused by other
tenants or persons in the Leased Premises, occupants of adjacent
property within VIA XXXXXX FINANCIAL PLAZA, or the public, or caused by
operations in construction of any private, public or quasi-public work.
Landlord shall not be liable in damages or otherwise for any latent
defect in the Leased Premises or in the Building of which they form a
part, except that if Tenant shall give notice to Landlord within a
period of one (1) year from the date Tenant takes possession of the
Leased Premises of the existence of any such latent defect, then
provided such defect shall not have resulted from any act, alteration or
improvement made by Tenant, Landlord shall repair such defect. All
property of Tenant kept or stored on the Leased Premises shall be so
kept or stored at the risk of Tenant only and Tenant shall hold Landlord
harmless from any and all claims arising out of damage to same,
including subrogation claims by Tenant's insurance carriers.
SECTION 19.03 Notice by Tenant.
Tenant shall give immediate notice to Landlord in case of fire
or accidents in the Leased Premises or in the Building of which the
premises are a part or of defects therein or in any fixtures or
equipment, or of any repair or maintenance item for which the Landlord
is responsible under the terms and conditions of this Lease.
ARTICLE XX
Holding Over Successors
SECTION 20.01 Holding Over.
In the event Tenant remains in possession of the Leased Premises
after the expiration of the tenancy created hereunder, and without the
execution of a new lease, Tenant, at the option of Landlord shall be
deemed to be occupying the Leased Premises as a Tenant from
month-to-month, at a monthly rent for the first thirty (30) days equal
to one hundred twenty-five percent (125%) of the fixed minimum rent
payable during the last month of the lease term and thereafter at a
monthly rent equal to two times the fixed minimum rent payable during
the last month of the lease term and a twenty-five percent (25%)
increase from each month occupying the Leased Premises thereafter. In
addition to the fixed minimum rent Tenant agrees to pay monthly all
Additional Rent as provided for in this Lease.
SECTION 20.02 Successors.
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and permitted
assigns of the said parties; and if there shall be more than one Tenant,
they shall be bound jointly and severally by the terms, covenants and
agreements herein. No rights, however, shall inure to the benefit of any
assignee of Tenant unless the assignment to such assignee has been
approved by Landlord in writing as provided in Section 11.01 hereof.
Nothing contained in this Lease shall in any manner restrict Landlord's
right to assign or encumber this Lease and, in the event Landlord sells
or transfers its interest in VIA XXXXXX FINANCIAL PLAZA and the
purchaser or transferee takes assignment of Landlord's
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interest in this Lease, Landlord shall thereupon be relieved of all
further obligations hereunder.
ARTICLE XXI
Quiet Enjoyment
Upon payment by the Tenant of the rents herein provided, and
upon the observance and performance of all the covenants, terms and
conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the term
hereby demised without hindrance or interruption by Landlord or any
other person or persons lawfully or equitably claiming by, through or
under the Landlord, subject, nevertheless, to the terms and conditions
of this Lease.
ARTICLE XXII
Miscellaneous
SECTION 22.01 Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than
an account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or any letter accompanying the check or payment
as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy provided in the
Lease by law.
SECTION 22.02 Entire Agreement.
This Lease and the Exhibits, and any Rider or Addendum, if any,
attached hereto and forming a part hereof, set forth all covenants,
promises, agreements, conditions and understandings between Landlord and
Tenant concerning the Leased Premises and there are no covenants,
promises, conditions or understandings, either oral or written, between
them other than as herein set forth. All understandings and agreements
heretofore made between Landlord and Tenant (including the agents and
employees of either the Landlord or Tenant) are merged into this Lease
and any other written correspondence or agreements made prior to the
execution of this Lease are hereby terminated, and are null and void.
This Lease fully and completely expressed the agreements of the Landlord
and Tenant which Lease is entered into by the Landlord and Tenant after
full investigation by each party, neither party relying upon any
statement or representation not embodied in this Lease or other written
agreement executed simultaneously with this Lease. No provision of this
Lease may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in interest.
SECTION 22.03 No Partnership.
Landlord does not, in any way or for any purpose, become a
partner of Tenant in the conduct of its business, or otherwise, or joint
venturer or a member of a joint enterprise with Tenant.
SECTION 22.04 Force Majeure.
In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability to
procure materials, failure of power, restrictive
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governmental laws or regulations, riots, insurrection, war or other
reason of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a
period of such delay. The provisions of this Section 22.04 shall not
operate to excuse Tenant from the prompt payment of rent, percentage
rent, additional rent or any other payments required by the terms of
this Lease.
SECTION 22.05 Notices.
(a) All notices shall be in writing and shall be deemed to have
been given upon receipt.
(b) Any notice by Tenant to Landlord must be served by certified
or registered mail, or private mail service, postage prepaid, addressed
to Landlord at the address first hereinabove given or at such other
address as Landlord may designate by written notice. Any notice by
Landlord to Tenant must be served by certified or registered mail, or
private mail service, postage prepaid, addressed to Tenant at the
address first hereinabove given or at such other address as Tenant may
designate by written notice except as provided in subparagraph (c)
hereinafter.
(c) After commencement of the term hereof any notice by Landlord
to Tenant shall be served by hand delivery or private mail or delivery
service, postage prepaid, addressed to Tenant at the Leased Premises.
(d) Notice shall be deemed to be properly given if addressed to
Tenant at its last known address, if private mail or delivery service or
certified mail return receipt requested, postage pre-paid is refused or
otherwise undeliverable.
SECTION 22.06 Captions and Section Numbers.
The captions, section numbers, article numbers and index
appearing in this Lease are inserted only as a matter of convenience and
in no way define, limit, construe, or describe the scope or intent of
such sections or articles of this Lease not in any way affect this
Lease.
SECTION 22.07 Tenant Defined, Use of Pronoun.
The word "Tenant" shall be deemed and taken to mean each and
every person mentioned as a Tenant herein be the same, one or more and
if there shall be more than one Tenant any notice required or permitted
by the terms of this Lease may be given by or to any one thereof, and
shall have the same force and effect as if given or to all thereof. The
use of the neuter singular pronoun to refer to Landlord or Tenant shall
be deemed a proper reference even though Landlord or Tenant may be an
individual, a partnership, a corporation, or a group of two or more
individuals or corporations. The necessary grammatical changes required
to make the provisions of this Lease apply in the plural sense where
there is more than one Landlord or Tenant and to either corporations,
associations, partnerships, or individuals, males or females, shall in
all instances be assumed as though in each case fully expressed.
SECTION 22.08 Brokers Commission.
Each of the parties represents and warrants that it has dealt
with no broker or brokers in connection with the execution of this
Lease, except as set forth in Section (v) of the Lease
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Summary, and each of the parties agrees to indemnify the other against,
and hold it harmless from, all liabilities arising from any claim for
brokerage commissions or finder's fees resulting from the indemnitor's
acts (including, without limitation, the cost of counsel fees in
connection therewith) except as set forth in Section (v) of the Lease
Summary.
SECTION 22.09 Partial Invalidity.
If any term, covenant or condition of this Lease or the
application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
SECTION 22.10 Effectiveness of Lease.
The submission of this Lease for examination does not constitute
a reservation of or option for the Leased Premises and this Lease
becomes effective as a lease only upon execution and delivery thereof by
Landlord to Tenant, and the receipt of the full security deposit, and if
paid by check, subject to clearance.
SECTION 22.11 Recording.
Tenant shall not record this Lease or any memorandum thereof in
any public records without the written consent and joinder of Landlord.
SECTION 22.12 Liability of Landlord.
Anything contained in this Lease at law or in equity to the
contrary notwithstanding Tenant expressly acknowledges and agrees that
there shall at no time be or be construed as being any personal
liability by or on the part of Landlord under or in respect of this
Lease or in any way related hereto or the Leased Premises; it being
further acknowledged and agreed that Tenant is accepting this Lease and
the estate created hereby upon and subject to the understanding that it
shall not enforce or seek to enforce any claim or judgment or any other
matter, for money or otherwise, personally or directly against any
officer, director, stockholder, partner, principal (disclosed or
undisclosed), representative or agent of Landlord, but will look solely
to the Landlord's interest in the VIA XXXXXX FINANCIAL PLAZA for the
satisfaction of any and all claims, remedies or judgments (or other
judicial process) in favor of Tenant requiring the payment of money by
Landlord in the event of any breach by Landlord of any of the terms,
covenants or agreements to be performed by Landlord under this Lease or
otherwise, subject, however, to the prior rights of any ground or
underlying lessors or the holders of the mortgages covering the VIA
XXXXXX FINANCIAL PLAZA, and no other assets of Landlord shall be subject
to levy, execution or other judicial process for the satisfaction of
Tenant's claims; such exculpation of personal liability as herein set
forth to be absolute, unconditional and without exception of any kind.
SECTION 22.13 Time of the Essence.
Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
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SECTION 22.14 Estoppel Information.
When the commencement date is determined, Tenant agrees, upon
request of Landlord, to execute and deliver to Landlord, without charge
and within ten (10) days following request therefor, a written
declaration in form satisfactory to Landlord:(i)ratifying this Lease;
(ii) confirming the commencement and expiration dates of the term of
this Lease; (iii) certifying that Tenant is in occupancy of the Leased
Premises, the date Tenant commenced operating Tenant's business therein
and that this Lease is in full force and effect and has not been
assigned, modified, supplemented or amended, except by such writings as
shall be stated; (iv) that all conditions under this Lease to be
performed by Landlord have been satisfied, except such as shall be
stated; (v) that there are no defenses or offsets against the
enforcement of this Lease by Landlord, or stating those claimed by
Tenant; (vi) reciting the amount of advance rental, if any, paid by
Tenant and the date to which rental has been paid; and (vii) reciting
the amount of security deposited with Landlord, if any. Tenant agrees to
execute and deliver similar declarations at any time and from time to
time and within ten (10) days following request therefor by Landlord or
by any mortgage lenders or ground or underlying lessor and or
purchaser's of all or any portion of VIA XXXXXX FINANCIAL PLAZA, and
each of such parties shall be entitled to rely upon such written
declaration made by Tenant. Tenant's failure or refusal to execute the
declaration required hereunder within ten (10) days following the
request therefor will constitute a default hereunder and Landlord shall
have such rights and remedies against Tenant as is available to Landlord
for Tenant's default.
SECTION 22.15 Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law
or in equity.
SECTION 22.16 Choice of Law.
This Lease shall be governed by the laws of the State of
Florida.
SECTION 22.17 Affirmative Waivers.
Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and
privilege which it, they or any of them might have under or by reason of
any present or future law, to redeem the Leased Premises or to have a
continuance of this Lease after being dispossessed or ejected therefrom
by process of law or under the terms of this Lease or after the
termination of this Lease as provided in this Lease. Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim
brought by either against the other on any matter whatsoever arising out
of or in any way connected with this Lease, the relationship of Landlord
and Tenant, Tenant's use or occupancy of the Leased Premises, including,
without limitation, any claim of injury or damage, and any emergency and
other statutory remedy with respect thereto.
SECTION 22.18 Preparation of Lease.
The submission by Landlord of the Lease in draft form shall be
deemed submitted solely for Tenant's consideration and not for
acceptance and execution. Such submission shall have no binding force or
effect and shall confer no rights nor impose any obligations, including
brokerage obligations, on either party unless and until both Landlord
and Tenant shall have executed the
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42
Lease and duplicate originals thereof shall have been delivered to the
respective parties.
SECTION 22.19 Counterparts.
This Lease may be executed in multiple copies, each of which
shall be deemed an original, and all of such copies shall together
constitute one and the same instrument.
SECTION 22.20 Acceptance of Funds by Landlord.
No receipt of money by the Landlord from the Tenant after the
termination of this Lease or after the service of any notice or after
the commencement of any suit, or after final judgment for possession of
the Leased Premises shall reinstate, continue or extend the term of this
Lease or affect any such notice, demand or suit.
SECTION 22.21 Attachments.
Exhibits One, Two, A, B, C, D, E, F, G, H, I, J, K, L, N, and N,
as well as any Riders or Addendum which are attached to this Lease are a
part of this Lease and are incorporated herein as if fully set forth
herein.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed
this Lease on the day and year first above written.
VIA XXXXXX ASSOCIATES, a
Florida general partnership,
LANDLORD
BY: VMP, LTD., a Florida
limited partnership,
General Partner of Via
Xxxxxx Associates
Signed, sealed and delivered BY: SVMP, INC., a Florida
in the Presence of corporation, General
Partner of SVMP, LTD.
------------------------------
By: /s/ Xxxx Xxxxxx,
------------------------------ ---------------------------------
As to the Landlord Xxxx Xxxxxx, President
(Corporate Seal)
Date: 4/10/89
Signed, sealed and delivered MACKENZIE INVESTMENT
in the presence of MANAGEMENT, INC., a Delaware
corporation, Tenant
------------------------------
By: /s/
------------------------------ ---------------------------------
As to Tenant President
(Corporate seal)
Date: 7/16/89
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43
Exhibit One
To
Lease Agreement
Between Via Xxxxxx Associates
and Mackenzie Investment Management Inc.
Description: Site Plan of Via Xxxxxx Financial Plaza
Page 1 of 3
44
EXHIBIT ONE
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
The improvements and plans of development depicted on this
Exhibit One are conceptual in nature and tentative in Landlord's
anticipated subsequent development of the site. Landlord agrees only to
construct those improvements designated hereon as Xxxxxxxxx 0 xxx 0,
Xxxxx X-X. Landlord anticipates constructing the Phase I-A improvements
substantially as depicted in this Exhibit, however, Tenant acknowledges
that the final, actual location, configuration, elevation and dimensions
of the Phase I-A improvements upon completion of construction may vary
from those improvements depicted hereon due to governmental permit and
approval requirements and upon field and construction conditions and
requirements. Landlord does NOT agree or represent to tenant in any way
that any improvements or development as depicted on this Exhibit, other
than the improvements designated as Xxxxxxxxx 0 xxx 0, Xxxxx X-X, xxxxx
xx undertaken or completed. Tenant acknowledges that Tenant has not
relied upon any information or the depiction of any improvements on this
Exhibit in entering this Lease other than as expressly set forth in this
narrative statement.
Page 2 of 3
45
EXHIBIT ONE
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
DESCRIPTION: Site Plan of Xxx Xxxxxx Xxxxxxxxx Xxxxx
00
EXHIBIT TWO
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
1. Lease Commencement Date. Tenant acknowledges that Landlord will
construct the office building in accordance with the provisions of Article III
of the Lease. The obligations of the Landlord and Tenant as set forth in this
Lease are expressly CONTINGENT upon the Landlord obtaining from all governmental
entities having jurisdiction over the Leased Premises, all permits and
authorizations to construct and shall commence construction of Pavilion 6 on or
before September 15, 1989. Subject to the foregoing, Landlord agrees to deliver
to Tenant the Leased Premises not later than July 15, 1990. If for any reason
Landlord is unable to deliver the Leased Premises to the Tenant with tenant
improvements reasonably complete (provided Tenant has selected Landlord to
construct the tenant improvements) by July 15, 1990, then in that event Tenant's
sole and exclusive remedy shall be the right of the Tenant to terminate this
Lease, receive a refund of any deposit made by Tenant to Landlord and
thereafter, this Lease will become null and void. Should Tenant elect to
terminate this Lease pursuant to this Paragraph 1, then Tenant must deliver
written notice of such election during the period July 16, 1990 to July 25,
1990, time being of the essence as to Tenant's notice obligation.
The Lease Commencement Date shall commence upon (a) Tenant occupying the
Leased Premises, or (b) ninety (90) days subsequent to the date Landlord obtains
a Certificate of Occupancy (either temporary or permanent) for Pavilion 6
(shell), whichever event shall first occur; provided, however, if Tenant has
complied with the provisions of Paragraph 2 below AND Tenant elects that the
Landlord's contractor will construct the Tenant Improvements, then the Lease
Commencement Date shall be the date that a Certificate of Occupancy is issued
for the Tenant Improvements. If Tenant elects to use a Tenant Improvement
contractor selected by Tenant, then in that event the Landlord agrees that the
Tenant Improvement contractor will have access to the Leased Premises not later
than April 15, 1990 to begin construction of the Tenant Improvements (provided,
however, that Tenant must comply with all governmental regulations and obtain
all governmental permits prior to access to the Leased Premises and initiating
the Tenant Improvements construction). Landlord shall notify Tenant of the date
construction is initiated for Pavilion 6 (shell) and the estimated date of
completion of Pavilion 6 (shell) so that Tenant may coordinate construction of
the Tenant Improvements.
2.Tenant Improvements. In accordance with the provisions of Article III
of this Lease, Tenant shall perform and construct all Tenant Improvements
described in Exhibit "D" annexed hereto and made a part hereof. Upon Tenant
receiving Landlord's notice that construction has been initiated (as provided
for in Paragraph 1 above), Tenant shall have the plans and specifications for
the Tenant Improvements prepared and finalized (it is understood and agreed by
Tenant that none of the materials to be incorporated into the Tenant
Improvements would result in a fabrication and/or delivery date which would
result in the construction of the Tenant Improvements being delayed beyond the
Tenant Improvement completion date a set forth. herein. Tenant
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47
shall obtain a Tenant Improvements building permit on or before ninety (90) days
from the estimated date of completion of the office building (shell) so that the
Tenant Improvements may be coordinated with the completion of Landlord's Work.
Upon the completion of the tenant Improvements described in Exhibit "D" and
obtaining a certificate of occupancy for the Leased Premises from all
governmental authorities having jurisdiction over the Tenant Improvements,
Landlord shall pay to Tenant (i) a tenant improvement allowance of Thirty-five
Dollars ($35.00) per square foot for each square foot of rental space for which
Tenant pays rent to the Landlord; and (ii) an architectural interior design fee
allowance of Two and 10/100 Dollars ($2.10) per square foot for each square foot
of rental space for which Tenant pays rent to the Landlord. The tenant
improvement allowance and the architectural improvement allowance shall be paid
by Landlord to Tenant within ten (10) days from the date Landlord receives (a)
written notice from the Tenant advising that the Tenant Improvements are
completed, and (b) a copy of the Tenant's certificate of occupancy.
Landlord agrees, upon the request of Tenant, to construct Tenant
Improvements in the premises. If, however, the Tenant Improvement cost estimates
exceeds Fifty Dollars ($50.00) per square foot and Tenant is either unwilling to
redesign the premises in order to reduce cost estimate to under Fifty Dollars
($50.00) per square foot or employ another Tenant Improvement Contractor other
than Landlord's Tenant Improvement Contractor, then Landlord has the option to
either extend the period of time necessary for Tenant Improvement construction
while the lease commencement date remains the same or Landlord may terminate
this Lease Agreement in its entirety (hereinafter referred to as "Landlord's
Termination Right"). Tenant shall agree to submit complete working drawings by
December 15, 1989 (or 90 days from the date Landlord issues notice that
construction has been initiated as provided for in Paragraph 1 above, whichever
date is earlier) and Landlord's Termination Right shall expire on February 15,
1990. Nothing contained in this paragraph shall be construed to modify or change
the tenant improvement allowance which is in the amount of Thirty-five Dollars
($35.00) per square foot for each square foot of rental space for which Tenant
pays rent to Landlord.
3. Approval of Building Plans and Specifications (Shell) by Tenant.
Landlord shall cause to be prepared schematic and preliminary drawings and
outline specifications (hereinafter referred to as "Preliminary Plans") for the
office building (shell) and submit the same to the Tenant for the Tenant's
review and approval. Tenant shall within ten (10) days from the date Tenant
receives the Preliminary Plans review and approve (or disapprove) the
Preliminary Plans and shall notify Landlord in writing of Tenant's rejection of
the Preliminary Plans, otherwise Preliminary Plans shall be deemed approved by
Tenant. Subsequent to Tenant's acceptance of the Preliminary Plans the Landlord
shall cause to be prepared the working drawings for the construction of the
office building (shell). Upon the working drawings being completed by the
Landlord, Landlord shall submit the same to Tenant for Tenant's review and
approval (or disapproval) Provided that the working drawings are substantially
similar to the Preliminary Plans approved by the Tenant, the Tenant shall be
deemed to have approved and accepted the working drawings. In the event the
working drawings deviate substantially from the approved Preliminary Plans,
Tenant shall notify Landlord of any such deviation in writing within ten (10)
days from the date that Landlord submits the working drawings to Tenant,
otherwise the working drawings shall be deemed approved by Tenant. The Landlord
may at Landlord's election modify such substantial deviation, or if the Landlord
elects not to modify such substantial deviation, then the Tenant may elect to
cancel and
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48
terminate this Lease Agreement by serving written notice upon the Landlord
within ten (10) days from the date Landlord notifies Tenant that Landlord will
not modify the substantial deviation in the working drawings identified by
Tenant.
4. Expansion Provisions. Provided Tenant is in good standing and not in
default under this Lease, Landlord hereby grants to Tenant an option at Tenant's
sole election to lease an additional 3,500 square feet of space on the second
floor of the office building (hereinafter referred to as "Optional Leased
Premises"). The Optional Leased Premises shall be configured in accordance with
the Floor Plan attached hereto as Exhibit "A-l" or such other re-configuration
of the Optional Leased Premises as Landlord may elect to accommodate the primary
user of the second floor of Pavilion 6. Tenant may elect to occupy the Optional
Leased Premises on or before thirty (30) days subsequent to the Lease
Commencement Date. The election to occupy the Optional Leased Premises shall be
made by Tenant delivering written notice to the Landlord of such election not
later than thirty (30) days subsequent to the Lease Commencement Date (time
being of the essence). The written notice shall specifically refer to this
paragraph and shall contain a statement which indicates the Tenant has elected
to occupy the Optional Leased Premises. occupancy of the Optional Leased
Premises by the Tenant shall be subject to all the terms and conditions of this
Lease, including but not limited to additional lease guaranty collateral as
provided for in Paragraph 13 hereinafter, and the term of the Tenant's occupancy
shall be the term remaining under this Lease, together with an options of the
Tenant to extend this Lease.
The Fixed Minimum Annual Rent for the Optional Leased Premises shall be
as provided for in subparagraph (p) of the Lease Summary.
Plans for all Tenant Improvements in the Optional Leased Premises shall
be submitted by Tenant to Landlord and approved in writing by Landlord prior to
Tenant beginning construction of the proposed Tenant Improvements and in
accordance with the provisions of Exhibit "D". Landlord and Tenant agree that
upon Tenant completing the approved Tenant Improvements and obtaining a
certificate of occupancy for the Leased Premises from all governmental
authorities having jurisdiction over the construction over the Tenant
Improvements, Landlord shall pay to Tenant a tenant improvement allowance of
Thirty-five Dollars ($35.00) per square foot for each square foot of rental
space for which Tenant pays rent to the Landlord. The tenant improvement
allowance shall be paid by Landlord and Tenant within ten (10) days from the
date Landlord receives written notice from the Tenant advising that the Tenant
Improvements are completed and a copy of the Tenant's certificate of occupancy.
5. Renewal Options.
Number of Option Terms: Two
Duration of Each Option Term: Five Years
Provided Tenant is in good standing and not in default under this Lease,
Landlord hereby gives and grants to Tenant the right, privilege and option of
extending the Lease for two (2) terms as set forth above. The first extended
term will commence on the date of the expiration of this Lease. Provided the
Tenant has exercised the option for the first extended term and is in good
standing and not in default under this Lease during the first extended term, the
second extended term will commence on the date of the expiration of the first
extended term. In order to exercise the option herein granted, Tenant must give
written notice of Tenant's intention to exercise the option to extend not less
than nine (9) months prior to the expiration of the current term, or the
-3-
49
first extended term, as the case may be. All of the terms, covenants and
conditions of this Lease will apply during each option term except the Fixed
Minimum Annual Rent will be adjusted as follows: Upon Landlord receiving notice
from Tenant of Tenant's election to extend the Lease for each option term
provided for hereinabove, then Landlord shall within one hundred eighty (180)
days from the receipt of Tenant's notice issue written correspondence to the
Tenant which shall contain the Fixed Minimum Annual Rent which Landlord has
established for the first year of the option term. If the Tenant finds the Fixed
Minimum Annual Rent charge established in Landlord's correspondence
unacceptable, Tenant shall notify Landlord within ten (10) days of receipt of
Landlord's correspondence, and the Landlord and the Tenant shall each select an
independent appraiser within ten (10) days from the date Landlord receives
Tenant's notice. The two (2) independent appraisers shall then select a third
appraiser and the three (3) appraisers shall each independently establish a fair
market rental value for the first year of the option term. Each of the
appraisers described above shall be members of the American Institute of Real
Estate Appraisers, Members Appraisal Institute and shall be familiar with and
conduct the majority of their business in Broward or Palm Beach County, Florida.
The fair market rental values established by the three (3) appraisers shall then
be averaged together and the Fixed Minimum Annual Rent binding upon the Landlord
and Tenant shall be the average of the three (3) appraisals; provided, however,
notwithstanding the result of the appraisal process provided for hereinabove,
the Fixed Minimum Annual Rent for the first year of each option term shall not
be less than the Fixed Minimum Annual Rent for the year preceding the first year
of the option term. This appraisal process procedure shall apply to the first
option term and the second option term of the Tenant, if the Tenant exercises
each of its renewal options. The cost and expense of the appraisal process shall
be the equal responsibility of the Landlord and the Tenant.
6. Tenant Signage. Landlord shall allow (subject to Landlord's approval,
which approval shall not be unreasonably withheld) the Tenant to install signage
as follows: (i) one exclusive sign attached to the exterior rear entrance of
Pavilion 6 which shall not exceed five square feet with no more than four inch
letters (it is further understood that no other exterior signage shall be
attached to the exterior rear entrance of Pavilion 6 except Tenant acknowledges
that Southeast Bank will install automatic teller machines and automatic teller
signage at the rear entrance of Pavilion 6 but such signage will not be located
within 10 feet of Tenant's rear entrance signage); (ii) in the elevator ground
floor lobby; (iii) the interior entrance of the Tenant's Leased Premises; (iv)
on the east side of Pavilions 5 and 6 located adjacent to the rear entry one
attached directory sign of no more than six square feet with letters of no more
than three inches in height; and (v) one free standing Tenant sign with a
maximum height of seven feet, limited to two parallel sign faces, located in a
landscaped area, with sign letters (logo, etc.) not to exceed forty percent of
the sign face; provided, that all signage is of a first class design and
construction and consistent with the quality and character of VIA XXXXXX
FINANCIAL PLAZA and otherwise consistent with the provisions of Exhibit "E".
Tenant acknowledges and agrees that all signs and informational material must
comply with the ordinances and codes of the city of Boca Raton and any other
governmental entities having jurisdiction over such installation.
7. Parking Provisions. Notwithstanding the provisions of Section 2.04 of
the Lease during the first five (5) years of the term of this Lease, the cost of
operating the parking facilities for the Leased Premises and XXX XXXXXX
XXXXXXXXX XXXXX
-0-
00
will be shared prorata by the tenants of VIA XXXXXX FINANCIAL PLAZA in
accordance with the provisions of Section 2.06 of the Lease. Subsequent to the
fifth year of the Lease, the Landlord may at the Landlord's option, continue to
collect the cost of operating the parking facilities in accordance with the
provisions of Section 2.06 or the Landlord may elect to exercise the rights of
the Landlord set forth in Section 2.04 to operate the parking facilities under a
charge for parking system.
Landlord shall provide to Tenant during the first five (5) years of the
term of the Lease: (a) three (3) parking spaces for each thousand square feet of
rental space; and (b) six (6) of the spaces provided for in item (a) above shall
be designated "reserved - Mackenzie" and shall be exclusively for the use of the
Tenant or its designees. It is further agreed that if a charge for parking
system is adopted by the Landlord, as set forth in Section 2.04 of the Lease,
then the Tenant shall pay a charge for parking not greater than the minimum
charge imposed by Landlord upon any other Tenant within VIA XXXXXX FINANCIAL
PLAZA.
8. Recalculation of Fixed Minimum Annual Rent Upon Completion of
Landlord's Work. The Fixed Minimum Annual Rent and the fixed minimum monthly
rent set forth in Section (p) of the Lease Summary shall be recalculated upon
Landlord completing Landlord's Work as provided in Section 3.01 of this Lease.
The recalculation of the Fixed Minimum Annual Rent shall occur by multiplying
the number of square feet within the Leased Premises times the per square foot
rental amount set forth in Section (p) of the Lease Summary. The number of
square feet within the Leased Premises shall be determined in accordance with
the provisions of Exhibit "J" after the Landlord has completed the Landlord's
Work as provided for in Section 3.01 of this Lease.
9. First Right of Refusal and First Right to Rent (3,500 sq. ft. located
on the second floor). Subsequent to the expiration of the option of Tenant set
forth in Paragraph 4 above, Tenant shall have a first right of refusal to rent
the 3,500 sq. ft. located on the second floor. This first right of refusal shall
expire one (1) year from the Lease Commencement Date. Landlord agrees that prior
to entering into a bona fide Lease for the 3,500 sq. ft. on the second floor,
Landlord shall present to Tenant the proposed Lease for such space. Tenant shall
have a period of five (5) business days from the date Tenant receives the
proposed business Lease to accept the terms of the proposed Lease. If Tenant
does not execute the proposed Lease and return the same to Landlord prior to the
expiration of five (5) business days from the date Landlord delivers the
proposed Lease to the Tenant (time being of the essence as to Tenant's execution
and delivery of the proposed Lease to Landlord within five (5) business days),
then Landlord may proceed to enter into the proposed business Lease with the
Tenant desiring to the lease the 3,500 sq. ft. on the second floor. Subsequent
to one (1) year after the Lease Commencement Date, provided Tenant is in good
standing and not in default under this Lease, the Tenant shall have a first
right to rent the 3,500 sq. ft. on the second floor (as and when the 3,500 sq.
ft. on the second floor is not occupied nor subject to a Lease) under identical
terms and conditions of this Lease except that the fixed minimum annual rent
shall be determined in the same manner as is provided for in determining the
fixed minimum annual rent for any renewal options as described in Paragraph 4
above.
10. First Right to Rent in VIA XXXXXX FINANCIAL PLAZA. During the term
of this Lease, or any renewal thereof, provided Tenant is in good standing and
not in default under this Lease, Landlord hereby gives and grants to Tenant a
first right to rent any office space which Landlord shall make available to
lease in Pavilions 5 and 6 of XXX XXXXXX XXXXXXXXX XXXXX XXXXX X for a period of
three (3) years under
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51
identical terms and conditions of this Lease except that the fixed minimum
annual rent shall be determined in the same manner as is provided for in
determining the fixed minimum annual rent for any renewal options as set forth
in Paragraph 4 above. The first right to rent provided hereinabove shall apply
only to speculative office space constructed by the Landlord and shall not apply
to any space leased by the Landlord prior to or simultaneously with the
initiation of construction of the building.
11. First Right of Offer to Purchase. During the term of this Lease, or
any renewal thereof, provided Tenant is in good standing and not in default
under this Lease, Landlord hereby gives and grants to Tenant a first right of
offer to purchase Pavilions 5 and 6 (if offered separately) or Pavilion 6 (if
offered separately) (Pavilions 5 and 6 or Pavilion 6 hereinafter referred to as
"Pavilion Property") should Landlord elect to sell the Pavilion Property. The
foregoing offer of first right of purchase is limited solely to the offer of
Pavilion 5 by itself or the offer of Pavilions 5 and 6 together (it specifically
does not apply to the offer of all of VIA XXXXXX FINANCIAL PLAZA or to the offer
of a portion of VIA XXXXXX FINANCIAL PLAZA which includes but is more than
Pavilions 5 and 6). The terms and conditions of the First Right of Offer to
Purchase the Pavilion Property are as follows:
a. In the event Landlord elects to offer the Pavilion
Property for sale to an unrelated third party at any
time during the term of this Lease or any renewal
thereof, then Landlord shall first offer the Pavilion
Property to Tenant. Landlord shall serve written notice
on Tenant not less than fifteen (15) days prior to the
date that Landlord submits a contract (hereinafter
referred to as the "Proposed Contract") to Tenant
containing the proposed terms and conditions of the sale
and purchase. If Tenant elects to accept such Proposed
Contract, Tenant shall properly execute the Proposed
Contract and return the Proposed Contract to Landlord
along with the required deposit (if any) as set forth in
the contract on or before the 5th day from the date
Tenant receives the Proposed Contract. Simultaneously
with the delivery of the Proposed Contract, Landlord
shall deliver to Tenant a rent roll and a lease income
statement for the calendar year in which the Proposed
Contract is delivered and for the preceding calendar
year. In the event Tenant notifies Landlord in writing
that it does not intend to accept the Proposed Contract
or if Tenant otherwise fails to execute and return the
Proposed Contract and comply with the terms thereof, the
Right of First Offer shall terminate and Tenant shall
thereafter be divested of any right to acquire the
Pavilion Property and Landlord may offer the Pavilion
Property to any person or entity upon such terms and
conditions as Landlord may elect in its sole discretion.
b. If the Tenant executes the Proposed Contract and returns
the Proposed Contract to the Landlord with the required
deposit (if any) then Landlord shall be obligated to
accept the Contract. If Tenant does not accept the
Proposed Contract, then Landlord shall not sell
-6-
52
the Pavilion Property on more favorable terms without
again first offering the Pavilion Property to the
Tenant.
c. Any right of Tenant under the terms of this Paragraph 11
shall terminate and be null and void upon the transfer
of title of the Pavilion Property to a third party
unrelated to the Landlord (including but not limited to
a transfer to an entity holding a mortgage on the
Pavilion Property, whether such transfer is by
foreclosure, deed in lieu of foreclosure or otherwise).
The provisions of this Paragraph 11 are specifically
subject and subordinate to any mortgage upon the
Pavilion Property whether now existing or executed
subsequent to the execution of this Lease. It is
expressly understood and agreed between Landlord and
Tenant that this first right of offer to purchase does
not apply to any offer made by a third party to purchase
the Pavilion Property from the Landlord where the offer
was unsolicited by the Landlord. Should an unsolicited
third party offer be accepted by the Landlord, and
thereafter title to the Pavilion Property is transferred
to a third party unrelated to the Landlord in accordance
with the accepted unsolicited third party offer, then in
that event, any right of the Tenant under the terms of
this Paragraph 11 shall terminate and be null and void
thereafter.
d. The provisions of this Paragraph 11 are personal to
MACKENZIE INVESTMENT MANAGEMENT INC., a Delaware
corporation and to MACKENZIE FINANCIAL CORPORATION, a
Canadian corporation, and may not be assigned or
transferred to any other person or entity; and should
the Tenant elect to assign the Tenant's interest in the
Lease, the provisions of this Paragraph 11 shall
terminate and thereafter be null and voi4 upon the
execution by Tenant of an assignment of the Tenant's
interest in this Lease.
12. Tenant Cancellation Provision and Penalty. Tenant may elect to
cancel this Lease at any time after the expiration of seven (7) years from the
Lease Commencement Date. This cancellation provision shall terminate upon the
Lease Expiration Date (eleven years subsequent to the Lease Commencement Date).
This cancellation provision applies only to the Leased Premises identified in
Section 1.01 of the Lease Agreement. To exercise the cancellation provision, the
Tenant shall provide to the Landlord: (a) written notice of Tenant's election to
cancel this Lease, which notice shall refer specifically to the cancellation
provision contained in this Paragraph 12 of Exhibit Two to the Lease Agreement;
and (b) the written notice shall contain a non-refundable cancellation penalty
payment (which shall be deemed earned by the Landlord upon receipt) in the sum
of $362,270.00, which payment shall be made by a cashier's check payable to the
Landlord and drawn on a bank in the State of Florida.
13. Lease Guaranty Collateral.
a. Landlord and Tenant agree that during term of this Lease
Tenant shall not be required to maintain a
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53
lease guaranty collateral escrow account as provided for
in the subparagraph (b) of this Paragraph 13, provided
that the Tenant shall have net worth at the time of the
execution of this Lease of not less than Seven Million
Dollars (U.S.$7,000,000.00) and continuously thereafter
shall maintain an audited net worth during the term of
this Lease of not less than Five Million Dollars
(U.S.$5,000,000.00). The net worth of the Tenant shall
be established by unaudited financial statements
prepared and filed by Tenant with the Securities
Exchange Commission. The unaudited financial statements
shall be delivered to the Landlord on or before November
15th of each calendar year for the period April 1st
through September 30th, and on or before May 15th of
each calendar year for the period October 1st through
March 31st of the preceding calendar year. In addition,
the Tenant shall deliver to the Landlord on or before
June 1st of each calendar year an audited financial
statement of the Tenant prepared in accordance with
generally accepted accounting principles by a certified
public accountant licensed to do business in Florida. If
any of the unaudited financial statements provided for
above or the annual audited financial statement provided
for above reflects a net worth of the Tenant which is
less than the amounts required above, then in that event
within ten (10) business days from the date Tenant
receives written notification from the Landlord of such
circumstance, Tenant shall establish a collateral escrow
account as provided for in subparagraph (b) of this
Paragraph 13. The failure of the Tenant to execute and
fund the Collateral Account Escrow Agreement in
accordance with the terms of subparagraph (b) of this
Paragraph 13 shall constitute a default in this Lease.
b. Landlord and Tenant agree that if Tenant is required to
establish a collateral escrow account pursuant to the
provisions of subparagraph (a) of this Paragraph 13
(hereinafter referred to as "Collateral Account"), then
such Collateral Account shall constitute a fund to
guaranty payment of the Tenant's obligations under the
terms of this Lease. The Collateral Account shall be
established at Xxxxxxx Bank of Florida, 0000 Xxxxx
Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, and the
funds deposited in the Collateral Account shall be
invested in United States Treasury Bills, Bonds and
Notes. Investment direction of the Collateral Account
shall be the responsibility of the Tenant and all
interest earned in the Collateral Account shall be paid
to Tenant. The minimum required balance
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54
in the Collateral Account shall be as set forth
hereinafter:
Lease Year Account Balances
---------- ----------------
1 $1,822,768
2 1,822,768
3 1,591,768
4 1,360,768
5 1,129,768
6 889,528
7 636,121
The terms and conditions of the release of the funds in the Collateral Account
to the Landlord and/or to the Tenant shall be set forth in a collateral account
escrow agreement to be entered
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55
into by Landlord and Tenant. The form of the collateral account escrow agreement
is attached hereto and made a part hereof as Exhibit "N".
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56
EXHIBIT "A"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
DESCRIPTION: Xxx Xxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxx #0
0xx Xxxxx xxxx
00
EXHIBIT "A-1"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
DESCRIPTION: Xxx Xxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxx #0
0xx Xxxxx xxxx
00
EXHIBIT "B"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
A portion of Blocks 22, 23, "De Xxxx Road", and "S.E. 0xx Xxxxxx" as shown on
the plat of Spanish River Land Company's Plat "A", as recorded in Plat Book 16,
Pages 27 through 30, inclusive of the Public Records of Palm Beach County,
Florida and a portion of Xxx 00, Xxxxx 00 xx xxx Xxxx xx Xxxxxx Development
Corporation Plat 1, as recorded in Plat Book 3, Page 37 of the Public Records of
Palm Beach County, Florida, being more particularly described as follows:
Commencing at the southwest corner of said Block 22; thence north along the east
right-of-way line of that 80.00 foot right-of-way for Federal Highway, as shown
on said Plat, a distance of 70.00 feet; thence east, a distance of 28.00 feet to
the Point of Beginning; thence continuing east, a distance of 142.00 feet;
thence north, a distance of 55.00 feet; thence east, a distance of 18.00 feet;
thence north, a distance of 72.45 feet to a point of intersection with the
southerly boundary line of the plat "Boca Raton Hotel and Club", as recorded in
Plat Book 53, Page 129 of the Public Records of Palm Beach County, Florida;
thence northwesterly along said southerly boundary line along the arc of a curve
to the right whose radius point bears N. 40~43'32" E. having a radius of 375.00
feet, a central angle of l5~50'09", an arc distance of 103.64 feet to a point;
thence west, a distance of 91.73 feet; thence south, a distance of 205.00 feet
to the Point of Beginning; said lands situate in the City of Boca Raton, Palm
Beach County, Florida.
59
EXHIBIT "C"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
LANDLORD'S WORK
Landlord shall provide all labor, materials and expense to complete Base
Building Improvements. Base building shall include but not be limited to
complete finished elevator lobby, complete men's and women's lavatories,
complete HVAC system, including mixing boxes, run outs, area controls and
louvers in finished ceiling.
60
EXHIBIT "D"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
TENANT'S WORK AND ALTERATIONS
1. SUBMISSION OF PLANS AND SPECIFICATIONS. Tenant shall make no changes
or alterations in or to the Leased Premises of any nature without Landlord's
prior written approval. Prior to commencing any work in the Leased Premises,
Tenant shall submit to Landlord for Landlord's written approval complete
drawings, plans and specifications (herein collectively referred to as "Tenant's
Plan") for the improvements and installations to be made by Tenant (herein
collectively referred to as "Tenant's Work"). Tenant's Plan shall be fully
detailed, shall show complete dimensions, shall not be conflict with Landlord's
basic plans for the Building, shall not require any changes in the structure of
the building and shall not be in violation of any laws, orders, rules or
regulations of any governmental department or bureau having jurisdiction of the
Leased Premises.
2. REVIEW OF PLANS BY LANDLORD. After submission to Landlord of Tenant's
Plan, Landlord shall either approve same or shall set forth in writing the
particulars in which Landlord does not approve same, in which latter case Tenant
shall, within five (5) days after Landlord's notification, return to Landlord
appropriate corrections thereto. Such corrections shall be subject to Landlord's
reasonable approval. Excepting construction of the initial Tenant improvements
made prior to Tenant's occupancy, Tenant shall pay to Landlord, promptly upon
being billed and as Additional Rent, any charges or expenses Landlord may incur
in reviewing Tenant's Plan. Tenant agrees that any review or approval by
Landlord of Tenant's Plans is solely for Landlord's benefit, and without any
representation or warranty whatsoever to Tenant with respect to the adequacy,
correctness or efficiency thereof or otherwise.
3. REVISIONS BY TENANT. Tenant further agrees that if Tenant makes any
changes in Tenant's Plan subsequent to its approval by Landlord and if Landlord
consents to such changes, Tenant shall pay to Landlord all costs and expenses
caused by such changes, which Landlord may incur or sustain by reason of delays
or changes necessitated in the performance by Landlord of any construction or
work it is performing in the Building; it being understood and agreed, however,
that Landlord shall have the right to refuse to consent to any such changes. Any
charges payable under this Paragraph 3 shall be paid by Tenant from time to time
upon demand as Additional Rent, whether or not the Lease term shall have
commenced.
4. CORRECTIONS BY LANDLORD. If Tenant fails to correct Tenant's Plan in
any particular as hereinabove required, Landlord shall have the right to make
such corrections on Tenant's behalf; but the foregoing right shall not preclude
the exercise by Landlord of any other right or remedy which it may have in such
event.
5. DILIGENT COMPLETION. Following compliance by Tenant with its
obligations under the foregoing Paragraphs, Tenant shall
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timely commence Tenant's Work in order to complete same within a reasonable
period of time. Tenant's Work shall be diligently pursued and shall be performed
in a good and xxxxxxx like manner.
0.XXXX SCHEDULES. Tenant agrees that in the performance of Tenant's Work
(i) neither Tenant nor its agents or employees shall interfere with the work
being done by Landlord and its agents and employees, (ii) that Tenant shall
comply with any reasonable work schedule, rules and regulations proposed by
Landlord, its agents or employees, (iii) that the labor employed by Tenant shall
be harmonious and compatible with the labor employed by Landlord in the
Building, it being agreed that if in Landlord's judgment the labor is
incompatible Tenant shall forthwith upon Landlord's demand withdraw such labor
from the Leased Premises, (iv) that Tenant shall procure and deliver to Landlord
workmen's compensation, public liability, property damage and such other
insurance policies, in such amounts as shall be reasonably acceptable to
Landlord in connection with Tenant's Work, and shall upon Landlord's request
cause Landlord to be named as an insured thereunder, (v) that Tenant shall hold
Landlord harmless from and against any and all claims arising from or in
connection with any act or omission of Tenant or its agents or employees, (vi)
that Tenant's Work shall be performed in accordance with the approved Tenant's
Plan and in compliance with the laws, orders, rules and regulations of any
governmental department or bureau having jurisdiction of the Leased Premises,
and (vii) that Tenant shall promptly pay for Tenant's Work in full and shall not
permit any lien to attached to the Leased Premises or the Building.
7. COST ESTIMATES.
(a) Landlord's approval of Tenant's Plans, Tenant shall submit to
Landlord cost estimates certified by Tenant's architect for such work. Landlord
shall review such estimates in order to determine if they accurately reflect the
cost of Tenant's Work. The determination of Landlord shall control and be
binding on the parties unless there is more than a fifteen percent (15%)
variance in the costs, as estimated by Landlord and Tenant's architect. If there
is more than said fifteen percent (15%) variance Landlord shall appoint an
architect and Landlord's architect and Tenant's architect shall promptly proceed
to settle the dispute as arbitrators (and if they are not able to settle the
dispute, shall appoint a third architect, in which case the three architects
shall proceed to settle the dispute as arbitrators) and the determination of
said architects shall be conclusive. If a third architect is appointed as
aforesaid his fees shall be paid by Tenant. The provisions of this subparagraph
(a) of Paragraph 7 shall not apply to the initial Tenant improvements made prior
to Tenant's occupancy.
(b) Excepting construction of the initial Tenant improvements made prior
to Tenant's occupancy, upon a final determination being made of the estimated
cost of Tenant's Work, as provided in subparagraph (a) above (and prior to
Tenant's commencing any work) Tenant shall deliver to Landlord, to secure the
prompt and proper completion of Tenant's Work an irrevocable1 unconditional,
negotiable letter of credit, issued by and drawn on a New York Clearing House
bank in a form reasonably satisfactory to Landlord, in an amount equal to the
aggregate of (i) the aforesaid final cost estimate and (ii) ten percent (10%) of
such sum. Such letter of credit shall be for one year and shall be renewed by
Tenant each and every year until Tenant's Work is completed and shall be
delivered to Landlord not less than thirty (30) days prior to the expiration of
the then current letter of credit. Failure to deliver such new letter of credit
on or before said date shall be a material breach of this Lease and
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62
Landlord shall have the right, INTER ALIA, to present the then current letter of
credit for payment.
(c) Upon (i) the completion of Tenant's Work in accordance with the
terms of this Paragraph and (ii) the submission to Landlord of proof evidencing
the payment in full for Tenant's Work, including, without limitation, lien
waivers, the letter of credit (or the balance of the proceeds thereof, if
Landlord has drawn on said letter of credit) shall be returned to Tenant.
(d) Upon the Tenant's failure to properly perform, complete and fully
pay for Tenant's Work, as determined by Landlord, Landlord shall be entitled to
draw down on the letter of credit to the extent it deems necessary in connection
with Tenant's Work, the restoration and/or protection of the Leased Premises or
the Building and the payment or satisfaction of any costs, damages or expenses
in connection with the foregoing and/or Tenant's obligations under this
Paragraph.
8. FULL PAYMENT. All fixtures and equipment installed or used by Tenant
in the Leased Premises shall be fully paid for by Tenant in cash and shall not
be subject to conditional bills of sale, chattel mortgage or other title
retention agreements.
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63
EXHIBIT "E"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
SIGN SPECIFICATIONS
Landlord and Tenant acknowledge that the terms and provisions of this
Exhibit E for Sign Specifications are not available for inclusion in this Lease
as of the date the parties have executed this Lease. Tenant within forty-five
(45) days of the date both parties execute this Lease shall submit to Landlord
for Landlord's written approval the sign specifications for this Lease. Landlord
in Landlord's absolute discretion may approve or disapprove Tenant's submission
within ten (10) business days of receipt of such submission from Tenant. Upon
Seller approving the sign specifications submitted by Tenant, in writing, such
approved sign specifications shall automatically become and be deemed Exhibit
"E" hereto. In the event Landlord disapproves the submission Tenant shall have
ten (10) business days from the receipt of Landlord's notice of disapproval to
revise and resubmit said sign specifications to Landlord and Landlord shall have
ten (10) business days from receipt of Tenant's resubmitted sign specifications
within which to approve or disapprove the resubmitted sign specifications. If
Tenant fails to make the submission called for herein or if Landlord disapproves
any submission made by Tenant herein and Tenant fails to resubmit the sign
specifications satisfactory to Landlord, either party hereto may deliver written
notice to the other party herein canceling this Lease.
64
EXHIBIT "F"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
HEATING AND AIR CONDITIONING MAINTENANCE PROVISION
1. For any equipment or component exclusively serving the Leased Premises,
Tenant must obtain a full-service maintenance contract with a licensed
contractor (the "Contractor") acceptable to Landlord, with service to be
performed not less frequently than quarterly. Tenant must provide evidence of
such service contract to Landlord prior to occupancy and thereafter provide
evidence of any contract renewal or change, as it may occur.
2. The Contractor shall park, deliver, and use entrances, stairwells,
elevators and other areas only as designated by Landlord. Access to the roof, if
required for service, will be permitted only with express prior consent of
Landlord (with a minimum 24-hour notice).
3. The Contractor's access to the Leased Premises will be provided by the
Tenant and will be allowed only during normal business hours.
4. The Contractor's employees are to be identified by means of company
uniforms or identification badges, and the Contractor's vehicles by means of
signs.
5. No work is to be performed in the common areas unless required for
access to Tenant's equipment. Any service by the Contractor which could or will
result in the interruption of mechanical/electrical, plumbing or other services
to the Building or to any other tenant in the Building may occur only with
Landlord's express prior consent (with a minimum 48-hour notice to Landlord),
and must occur prior to 7:00 a.m. or after 8:00 p.m. or at such other time as
Landlord may designate.
6. In the event a Tenant system or component is to be replaced, Tenant is
required to inform Landlord prior to the commencement of any work and must abide
by the provisions of Article III, and Exhibits D and 1 of the Lease.
Additionally, Tenant must provide Landlord with evidence of warranty(ies) upon
request for the original system or any replaced system.
65
EXHIBIT "G"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
MAINTENANCE AND CLEANING STANDARDS FOR TENANT
(MULTI-TENANT BUILDING)
OFFICE/WORK AREAS
1 Empty and damp-wipe ashtrays and cigarette urns (daily).
2. Empty and clean all waste baskets and remove waste to a
designated container (daily).
3. Refill waste baskets with plastic liners (daily).
4. Sweep all hard-surface flooring with treated dust mops; damp-mop
(daily).
5 Spills, any other substance or material on the floors or any
condition on the floor creating a hazardous condition and any
stain on the floor shall be cleaned up and removed immediately.
6. Vacuum all traffic area carpet (daily).
7. Edge vacuum (with edging tool) all baseboard areas, corners,
behind doors, and around furniture legs and bases (weekly).
8. Spot clean carpeting (daily).
9. Hand dust all office furniture, furnishings, and horizontal
surfaces (daily).
10. Spot-clean walls (daily).
11. Hand dust ledges and vertical surfaces (weekly).
12. Spray-buff resilient floors (weekly).
13. Clean telephone handsets and bases with disinfectant (weekly).
14. Clean air supply vents (monthly).
15. Clean lamps and light fixtures (monthly).
16. Vacuum upholstered furniture (monthly).
REST ROOMS
1 Wash and sanitize all wash basins, dispensers, fittings, and
fixtures (daily).
2. Wash and sanitize all lavatories, toilet bowls, and seats
(daily).
3. Clean all mirrors, glass, and metal frames (daily).
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4. Empty all waste and sanitary product receptacles and remove waste
to a designated container (daily).
5. Refill waste and sanitary product receptacles with plastic liners
(daily).
6. Damp-wipe exterior of all waste receptacles (daily).
7. Sweep, wash, and rinse all ceramic/vinyl tile flooring and
fixture bases with a disinfectant cleaner (daily).
8. Hand dust all xxxxx, partitions, ledges, and shelving (daily).
9. Spot-clean partitions, walls, doors, and frames (daily).
10. Replenish all toilet tissue, hand towels, soap, sanitary
products, sanitary disposal bags and toilet seat covers (daily).
11. Empty and damp-wipe cigarette urns (daily).
12. Clean air supply vents (monthly).
13. Clean lamps and light fixtures (monthly).
KITCHEN/FOOD SERVICE AREAS
1. Empty and damp-wipe ashtrays and cigarette urns (daily).
2. Empty and clean all waste baskets and remove waste to a
designated container (daily)
3. Refill waste baskets with plastic liners (daily).
4. Sweep, wash, and rinse all ceramic/vinyl tile flooring and
fixture bases with a disinfectant cleaner (daily).
5. Vacuum all traffic area carpet (daily).
6. Spot clean carpeting (daily).
7. Wash and sanitize all sinks, countertops, and appliance tops
(daily).
8. Wash all table tops (daily).
9. Damp-wipe ledges and vertical surfaces (weekly).
10. Clean air supply vents (monthly).
11. Clean lamps and light fixtures (monthly).
GENERAL
1 Professional clean interior of all windows (not less frequently
than quarterly).
2. Touch-up paint and repainting (as needed).
3. Professional carpet cleaning and floor refinishing (as needed).
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EXHIBIT "H"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
BUILDING RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered, nor shall
they be used for any purpose other than ingress and egress to and from the
Leased Premises or Common Areas. No show cases or other articles shall be put in
front of or affixed to any part of the exterior of the Building, nor placed in
the halls, corridors or vestibules without the prior written consent of the
Landlord.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the Landlord's prior written consent. No curtains,
blinds, shades, interior window treatments or screens shall be attached to or
hung in, or used in connection with, any window or door of the Leased Premises,
without the prior written consent of the Landlord. Such awnings, projections,
curtains, blinds, shades, interior window treatments screens or other fixtures
must be of a quality, type, design and color, and attached in the manner
approved by the Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed on any part of the outside or inside of the Leased
Premises or the Building without the Landlord's prior written consent. In the
event of the violation of the foregoing, Landlord may remove same without any
liability, and may charge the expense incurred by such removal to the Tenant or
Tenants violating this rule. Interior signs on doors and directory tablet shall
be inscribed, painted or affixed for each Tenant by the Landlord and the
Tenant's expense and shall be of a size, color and uniform style acceptable to
the Landlord.
"Sign" (as used in the Lease and these Rules) is not limited to, but shall
include, raised or illuminated or backlit lettering. Any and all signs shall be
in accordance with applicable law and with aesthetic and other criteria
developed by the Building's architect.
4. The skylights, windows and doors that reflect or admit light into the
halls, passageways or other public places in the Building shall not be covered
or obstructed by any Tenant.
5. Lamps, other lighting, appliances, equipment, fixtures and machinery in
the Leased Premises demised to Tenants which use electrical energy or water
shall be disconnected or switched off other than during hours (i) the Building
is required to be open, and (ii) the Tenant is open for business, except if and
to the extent necessary to prevent food spoilage or other health hazard, except
clocks, and except for items approved in writing as necessary for Tenant's
business.
6. The toilets and urinals and other plumbing fixtures in common areas or
in Leased Premises shall not be used for any
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purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown into them. All damages
resulting from any misuse of the fixtures shall be borne by the Tenant who, or
whose servants, employees, agents, visitors or licensees, shall have caused the
same. Waste and excessive or unusual use of water shall not be allowed.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the Leased Premises demised to him or it, or the Building of which they form
a part. Nor boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of the Landlord, and as the Landlord may direct.
The expense of any breakage, stoppage or damage resulting from a violation of
this Rule shall be borne by the Tenant who has caused such breakage, stoppage or
damage.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Building, and no cooking shall be done or permitted by any
Tenant on the Building without written consent of Landlord which may be withheld
for any reason. No Tenant shall cause, suffer or permit any unusual or
objectionable odors or any nuisance, to be produced upon or permeate from any of
the Leased Premises demised to him or it.
9. No space on or in the Building shall be used for manufacturing, for the
storage or retail sale of tangible personal property of any kind, unless
Landlord gives its prior written consent to such manufacturing, storage or
retail sale, which consent may be unreasonably withheld.
10. No Tenant shall make, or permit to be made, any unusual or disturbing
noises, or disturb or interfere with occupants of this or neighboring buildings
or premises or those having business with them. No Tenant shall throw anything
out of the doors, windows or skylights or down the elevator shafts or along or
across the hallways, lobby or other common areas.
11. No Tenant, nor any of the Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep fluid, chemical or
substance, or any matter forbidden or regulated by any insurance company at risk
with respect to all or any part of the Building.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows, nor shall any changes be made in existing locks or the
mechanism thereof, without the express written consent of Landlord. Each Tenant
must, upon the termination of his Lease, return to the Landlord all keys and
access cards, either furnished by Landlord to, or otherwise procured by such
Tenant, and in the event of the loss of any keys so furnished, the Tenant shall
pay to the Landlord the cost thereof. Neither Tenants, nor their agents or
employees shall have any duplicate keys made.
13. All furniture, building supplies and materials, safes and other heavy
property, equipment, machinery and other freight must be moved into and within
the Building under the Landlord's supervision and according to such regulations
as may be posted in the management office of the Building, but Landlord will not
be responsible for loss of or damage to such freight from any cause.
14. When electric wiring of any kind is introduced it must be connected as
directed by the Landlord and no boring or cutting for wires will be allowed
except with the Landlord's consent. The location of telephones, telegraph
instruments, electric appliance, call boxes, etc., shall be prescribed by the
Landlord.
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No apparatus of any kind shall be connected with the electric wiring without the
written consent of the Landlord. The Tenant agrees not to use or connect with
the electric wires any more lights than are provided for in each room, or any
electric lamp of higher candlepower than provided, or any fan, motor or other
apparatus without the Landlord's written consent. The Tenant agrees not to
connect with the water pipes any apparatus using water, without the express
prior written consent of the Landlord.
15. Landlord shall have the right to prohibit any advertising by and Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as an Building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
16. The Leased Premises shall not be used for lodging or sleeping or for
immoral or illegal purposes.
17. The requirements of Tenant will be attended to only upon application at
the management office of the Building. Building management employees and
contractors shall not perform any work or do anything outside of their regular
duties, unless under special instructions from the Landlord.
18. Canvassing, soliciting and peddling in the Building or surrounding area
is prohibited and each Tenant shall cooperate to prevent the same.
No part of the Building Common Areas shall be used by any Tenant, or any
agent or employee of a Tenant, for any advertising, political campaigning or
other similar use, including, without limitation, the dissemination of
advertising or campaign leaflets or flyers.
19. The Landlord may waive or modify any one or more of these rules for the
benefit of any particular Tenant of the Building, but no such waiver by the
Landlord of any such rule or rules shall be construed as a waiver or
modification of such rule in favor of any other Tenant or Tenants of the
Building, nor prevent the Landlord from thereafter enforcing any such rule
against any or all of the Tenants of the Building.
20. Landlord reserves the right to make such other and further rules and
regulations as in its judgment may from time to time be necessary for the safety
and cleanliness of, and for the preservation of good order in the Building and
its Common Areas. If a segment of the parking lot is designated for use by
Tenant and its employees, Tenant will cooperate with Landlord in having its
employees only park therein.
21. Reference to Landlord herein shall at Landlord's discretion refer to
the then building manager, if any.
22. No materials may be stored or temporarily placed in halls, stairwells,
elevators or any Common Areas. Any materials of the Tenant will be safely and
cautiously brought upon through the halls, stairwells, elevators or any Common
Areas. Tenant will clean any refuse or remove any materials from these areas.
23. Tenant shall have access to the roof of the Building only for he
purpose of maintaining and repairing that part of the heating, air conditioning
and ventilating system individually serving that Tenant's Leased Premises
located thereon, subject to the following:
(a) Only professional maintenance or repair persons designated by the
Tenant may enter onto the roof.
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(b) Roof access is only permitted during daylight hours.
(c) Tenant assumes full responsibility for the acts of such
professionals and will reimburse any other party for any damage caused to person
or property by such professionals or the Tenant's employees or agents to the
transmitting and receiving devices and other systems and/or machinery on the
roof.
(d) Tenant shall give prior notice to Landlord of Tenant's intention
to allow its employees or agents on the roof.
24. Business machines and mechanical equipment used by any Tenant of the
Building which cause vibration or noise that may be transmitted to any other
portion of the Building, to such a degree to be reasonably objectionable to
Landlord or any other Tenant, shall be placed and maintained by such Tenant at
its expense in a setting of cork, rubber, or spring-type vibration isolators
sufficient to eliminate such vibrations or noise.
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EXHIBIT "I"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
RULES & REGULATIONS FOR TENANT CONSTRUCTION WORK
1 All work shall be performed between 7:00 a.m. and 8:00 p.m. Monday
through Friday. Night/weekend/holiday schedule only with prior consent of
Landlord, with a minimum 24-hour notice to Landlord (any additional security
costs to be the sole responsibility of Tenant).
2. Tenant shall provide a list subcontractors, materialmen, suppliers, etc.
request of contractor, to Landlord upon
3. Tenant's contractor shall not order or consign shipments to Leased
Premises in Landlord's name. Landlord has no responsibility for
accepting/receiving materials and supplies (Landlord held harmless from theft,
casualty, etc. of materials, supplies, equipment, etc.).
4. Tenant's contractor shall abide by all federal, state, and local laws,
including but not limited to laws and regulations affecting the safety of
persons and property on the Leased Premises or in VIA XXXXXX FINANCIAL PLAZA.
5. Tenant's contractor shall not interfere with any work being performed in
or on VIA XXXXXX FINANCIAL PLAZA or with the conduct of business of any other
tenant.
6. All Tenant construction activities are to be coordinated through the
office of Landlord.
7. Tenant's contractor shall remove all trash and debris (including dust1
spills, stains, etc.) daily or as often as needed so there is no cumulation in
or about the Leased Premises and never in the Common Area(s). Any trash or
debris in Common Area(s) may only be in transit. Use of common trash container
or any other container in or about VIA XXXXXX FINANCIAL PLAZA may occur only
with prior written consent of Landlord. Contractor may provide its own container
only with prior written consent of Landlord and in area designated by Landlord
which container must be emptied daily or more often if needed.
8. Work is shall be performed only in the Leased Premises and never in
Common Areas except connections, if necessary, for plumbing,
mechanical/electrical, security, or communications systems.
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9. Tenant shall secure utility services prior to commencement of any work.
If Tenant's contractor utilizes Landlord's or Common Area utilities (water,
electric, etc.), Tenant will pay Landlord $100.00/day for such usage.
10. Any interruption of building or other Tenant mechanical/electrical
(including HVAC), plumbing, security or communications services required due to
connection shall occur only with Landlord's express prior consent (with a
minimum 48-hour notice to Landlord), and must occur prior to 7:00 a.m. or after
8:00 p.m. or at such other time as Landlord may designate.
11. Contractors shall park, deliver, and use entrances, stairwells,
elevators, and other areas only as designated by Landlord. Access to the roof,
if required, will be permitted only with express prior consent of Landlord (with
a minimum 48-hour notice).
12. No fumes or odors (including but not limited to paint, varnish, or
solvents) will be permitted to permeate the Common Areas within VIA XXXXXX
FINANCIAL PLAZA or other Tenant premises. Any use of such materials that may
activate life safety systems is permitted only with express prior consent of
Landlord (with a minimum 48-hour notice).
13. Tenant and Tenant's contractor damage to VIA XXXXXX FINANCIAL PLAZA,
Tenant premises that may occur as construction or construction activities. are
responsible for any Common Areas, or other a result of Tenant's
14. Any damage, accident, or casualty that occurs during the Tenant's
construction must be reported by a written damage report and/or
accident/casualty report submitted by the Tenant to the Landlord. Such written
report shall be delivered to Landlord no later than forty-eight (48) hours after
the damage, accident or casualty occurs.
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EXHIBIT "J"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
FORMULA FOR CALCULATION OF
AREA WITHIN LEASED PREMISES
1 GROUND FLOOR RENTABLE AREA
The square feet in a ground floor area shall be computed by measuring from
the exterior building walls and from the inner surface of corridor and other
permanent partitions and to the center of partitions that separate the premises
from adjoining rentable areas.
No deduction shall be made for vestibules inside the building line or from
columns or projections necessary to the building.
2. UPPER FULL FLOOR RENTABLE AREA.
The rentable area of all floors above the ground floor shall be computed by
measuring to the inside finished surface of the dominant portion of the
permanent outer building walls excluding any major vertical penetrations of the
floor.
No deductions shall be made for columns and projections necessary for the
building.
3. MULTIPLE TENANT FLOOR USABLE AREA.
The usable area of an office shall be computed by measuring the finished
surface of the office side of corridor and other permanent walls, to the center
of partitions that separate the office from adjoining usable areas, and to the
inside finished surface of the dominant portion of the permanent outer building
walls.
No deductions shall be made for columns and projections necessary to the
building.
4. MULTIPLE TENANT FLOOR RENTABLE AREA.
The rentable area of an office on the floor shall be computed by
multiplying the usable area of that office by quotient of the division of the
total rentable area of the floor by the total usable area of the floor.
Total Rentable
Area of the
Floor
--------------
Rentable Area of Office = Usable Area x Total Usable
of Office Area of the
Floor
For purposes of calculating the Rentable Area of Office, the core area will
not exceed eighteen percent (18%) of the Total Rentable Area of the Floor. Total
Rentable Area for a Multiple Tenant Floor as set forth in this Paragraph 4 shall
be the same
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as Total Rentable Area for an Upper Full Floor as set forth in Paragraph 2
above.
DEFINITIONS:
(a) "Finished Surface" shall mean a wall, ceiling or floor surface, including
glass, as prepared for tenant use, excluding the thickness of any special
surfacing material such as paneling, furring strips and carpet.
(b) "Dominant Portion" shall mean that portion of the inside finished surface
of the permanent outer building wall which is 50% or more of the vertical
floor-to-ceiling dimension measured at the dominant portion. If there is no
dominant portion, or if the dominant portion is not vertical, the
measurement for area shall be to the inside finished surface of the
permanent outer building wall where it intersects the finished floor.
(c) "Major Vertical Penetrations" shall mean stairs, elevator shafts, flues,
pipe shafts, vertical ducts, and the like, and their enclosing walls, which
serve more than one floor of the building, but shall not include stairs,
dumb-waiters, lifts, and the like, exclusively serving a tenant occupying
offices on more than one floor.
(d) "Office" shall mean the premises leased to a tenant for which a measurement
is to be computed.
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EXHIBIT "K"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
STANDARDS FOR TENANT INSTALLATION
OF EOUIPMENT ON THE ROOF OR AFFIXED TO THE BUILDING
Landlord and Tenant acknowledge that the terms and provisions of this
Exhibit "K" for Standards for Tenant Installation of Equipment on the Roof or
Affixed to the Building are not available for inclusion in this Lease as of the
date the parties have executed this Lease. Tenant within forty-five (45) days of
the date both parties execute this Lease shall submit to Landlord for Landlord's
written approval the standards for Tenant installation of equipment on the roof
or affixed to the building for this Lease. Landlord in Landlord's absolute
discretion may approve or disapprove Tenant's submission within ten (10)
business days of receipt of such submission from Tenant. Upon Seller approving
the standards for Tenant installation of equipment on the roof or affixed to the
building submitted by Tenant, in writing, such approved standards for Tenant
installation of equipment on the roof or affixed to the building shall
automatically become and be deemed Exhibit "K" hereto. In the event Landlord
disapproves the submission Tenant shall have ten (10) business days from the
receipt of Landlord's notice of disapproval to revise and resubmit said
standards for Tenant installation of equipment on the roof or affixed to the
building to Landlord and Landlord shall have ten (10) business days from receipt
of Tenant's resubmitted standards for Tenant installation of equipment on the
roof or affixed to the building within which too approve or disapprove the
resubmitted standards for Tenant installation of equipment on the roof or
affixed to the building. If Tenant fails to make the submission called for
herein or if Landlord disapproves any submission made by Tenant herein and
Tenant fails to resubmit the standards for Tenant installation of equipment on
the roof or affixed to the building satisfactory to Landlord, either party
hereto may deliver written notice to the other party herein canceling this
Lease.
76
EXHIBIT "L"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
MEMORANDUM OF LEASE
(SHORT FORM)
THIS MEMORANDUM OF LEASE, made as of the ______ day of _____________,
19__, by and between VIA XXXXXX ASSOCIATES, a Florida general partnership,
herein called the "Landlord", and MACKENZIE INVESTMENT MANAGEMENT INC., a
Delaware corporation, herein called the "Tenant".
WITNESSETH THAT
1. Landlord and Tenant have entered into a Lease of the following described
real property, situated in Palm Beach County, Florida, to-wit:
(The legal description to be inserted here shall be the description in
Exhibit "B" of the Lease.)
This Memorandum is intended to give all persons notice of the Lease
specifically including the notices expressly set forth in this Memorandum.
2. Tenant is precluded by the terms of said Lease from creating or allowing
to be created against Landlord's title to or interest in the demised property,
any mechanic's or materialman's liens, and all persons claiming by, through,
under or against Tenant, are hereby notified that Tenant has no power or
authority to subject the title or interest of Landlord, as fee owner of the
demised property, to any claim for any such lien. All persons dealing with
Tenant and claiming by, through, under or against Tenant shall look entirely to
Tenant for the payment of any and all charges incurred in improving the demised
property at any time during the term of the Lease.
3. The term of the Lease commences on ______________________ and terminates
on ______________________. As of the date of termination of the Lease, this
Memorandum and the notices provided hereunder shall cease. If requested by
Landlord, Tenant agrees upon termination of the Lease to execute a cancellation
and termination of this Memorandum.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of
Lease to be executed as required by law, on the day and year first above written
and be deemed null and void.
VIA XXXXXX ASSOCIATES, a
Florida general partnership,
LANDLORD
BY: SVMP, LTD., a Florida
limited partnership
General Partner of Via
Xxxxxx Associates
Signed sealed and delivered BY: SVMP, INC., a Florida
in the presence of: Corporation, General
Partner of SVMP, LTD.
By:
-------------------------- --------------------------
Xxxx Xxxxxx, President
-------------------------- (Corporate seal)
As to the Landlord
MACKENZIE INVESTMENT
Signed sealed and delivered MANAGEMENT INC., a Delaware
In the presence of: corporation, Tenant
By:
-------------------------- --------------------------
-------------------------- (Corporate seal)
As to Tenant
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this ____ day of
____________________, 198__ by XXXX XXXXXX, President of SVMP, INC., a Florida
corporation, General Partner of SVMP, LTD., a Florida limited partnership, on
behalf of VIA XXXXXX ASSOCIATES, a Florida general partnership.
---------------------------
Notary Public
My commission expires:
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STATE OF ___________________
COUNTY OF __________________
The foregoing instrument was acknowledged before me this ___ day of
_______________, l98__ , by _______________, _______________, of MACKENZIE
INVESTMENT MANAGEMENT INC., a Delaware corporation, on behalf of the corporation
---------------------------
Notary Public
My commission expires:
This instrument prepared by:
Xxxxx X. Xxxxxxx
Osborne, Hankins, MacLaren & Redgrave
X.X. Xxxxxx 00
Xxxx Xxxxx, Xxxxxxx 00000
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EXHIBIT "M"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT, INC.
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
WHEREAS, the undersigned party identified as the "Lender" is the mortgagee
under that certain mortgage recorded in Official Record Book ________ at Page
_______, Public Records of _________ ______________ County, Florida (the
"Mortgage"):
WHEREAS, __________________________________, as "Landlord" and
__________________________ as "Tenant" executed a certain lease dated the ______
day of ____________, 19 (the "Lease") covering certain premises (the "Leased
Premises") included within the realty encumbered by the Mortgage; and
WHEREAS, in the Lease Tenant required, among other things, that Lender
execute and deliver to Tenant an agreement obligating any party acquiring title
to, or right of possession of, the Leased Premises under or by virtue of any
mortgage or deed of trust to be bound by the Lease and by all of Tenant's rights
thereunder.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Lender, Lender hereby covenants
and agrees that so long as Tenant is not in default beyond the applicable grace
period in the payment of rent or additional rent or in the performance of any of
the terms and conditions of the Lease, neither Tenant's possession of the Leased
Premises nor Tenant's rights and privileges under the Lease shall be disturbed,
diminished or interfered with by Lender nor will Tenant be named in any
foreclosure action or proceeding instituted by Lender pursuant to the Mortgage.
If the mortgage is foreclosed for any reason, and Lender succeeds to the
interest of Landlord under the Lease, Lender and Tenant shall be bound to each
other, as landlord and tenant, respectively, under the Lease for the balance of
the term thereof (including any extension or renewal terms), and Tenant hereby
attorns to Lender as its landlord, such Attornment to be effective and
self-operative, without the execution of any further instrument on the part of
either of the parties hereto, immediately upon Lender succeeding to the interest
of Landlord under the Lease. In on event shall Lender be liable for any act or
omission of any prior landlord, be subject to any off-sets or defenses which
Tenant might have against any prior landlord, or be bound by the rent or
additional rent which Tenant might have paid to any prior landlord for more than
the then current month. The rights and obligations hereunder of Tenant and
Lender shall bind and inure to the benefit of their respective legal
representatives, successors and assigns.
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed and delivered this ______ day of _______________, 19___.
Signed, sealed and delivered
in the presence of:
By:
--------------------------- ---------------------------
Lender
---------------------------
By:
--------------------------- ---------------------------
Tenant
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EXHIBIT "N"
TO
LEASE AGREEMENT
BETWEEN VIA XXXXXX ASSOCIATES
AND MACKENZIE INVESTMENT MANAGEMENT INC.
COLLATERAL ACCOUNT ESCROW AGREEMENT
This Collateral Account Escrow Agreement (the "Agreement") is entered into
this _____ day of ____________________, 19___ by and between VIA XXXXXX
ASSOCIATES, a Florida general partnership (the "Landlord") and MACKENZIE
INVESTMENT MANAGEMENT, INC., a Delaware corporation (the "Tenant") and XXXXXXX
BANK OF FLORIDA (the "Escrow Agent").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
__________________ 1989, pursuant to which Tenant will occupy leased premises in
Pavilion No. 6 of Via Xxxxxx Financial Plaza (hereinafter referred to as the
"Lease"); and
WHEREAS, Paragraph 13 of Exhibit Two of the Lease provides that under
certain circumstances Landlord and Tenant enter into this Agreement for purposes
of establishing a Collateral Account to constitute a fund to guaranty payment of
the Tenant's obligations under the terms of the Lease; and
WHEREAS, XXXXXXX BANK OF FLORIDA has agreed to serve as Escrow Agent under
this Agreement;
NOW, THEREFORE, for and in consideration of the sum of $10.00 paid by each
of the parties hereto to the other parties, in further consideration of the
terms and provisions of the Lease and in consideration of other good and
valuable considerations delivered by the parties to each other, Landlord, Tenant
and Escrow Agent agree as follows:
1. If required by Paragraph 13 of Exhibit Two of the Lease, Tenant shall
deliver to Escrow Agent simultaneously with the execution of this Escrow
Agreement an amount equal to the required Account Balance for the Lease Year in
which the collateral account is required, to be held in escrow by Escrow Agent
pursuant to the terms and conditions of this Agreement.
2. The funds held in escrow pursuant to and in accordance with this
Agreement establish the Collateral Account as provided in the Lease and shall be
held by Escrow Agent as security to guarantee payment of Tenant's obligations
under the terms of the Lease as follows:
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Escrow Funds Required
During Lease Year Account Balances
--------------------- ----------------
1 $1,822,768
2 1,822,768
3 1,591,768
4 1,360,768
5 1,129,768
6 889,528
7 636,121
3. Landlord and Tenant acknowledge and agree that the sums escrowed with
Escrow Agent pursuant to this Agreement shall be held to guaranty payment by
Tenant to Landlord of Tenant's obligations due and owing pursuant to the Lease.
If the payment of any obligation of Tenant is not received by Landlord within
fifteen (15) days of its due date, and further after ten (10) days following
written notice to Tenant of such non-payment, Landlord may deliver written
notice of such fact to Escrow Agent, together with an affidavit made under oath
by Landlord stating that a payment has not been received, and Escrow Agent shall
be authorized to disburse and shall disburse funds from the escrowed monies
under this Agreement to pay Landlord for such payment due from Tenant. The
Escrow Agent, upon receipt of the aforesaid written notice and affidavit, shall
deliver to Landlord from the funds escrowed pursuant to this Agreement the
delinquent payment due Landlord by Tenant as set forth in Landlord's notice and
affidavit.
4. Provided Tenant is not in default, Tenant shall be entitled to receive
from Escrow Agent any funds held by Escrow Agent in excess of the Account
Balance required for each Lease Year. Tenant shall request release of any such
excess funds by written notice to Escrow Agent and Landlord at any time such
excess funds may exist. Escrow Agent shall release such excess funds within
fifteen (15) days of Tenant's request unless Escrow Agent has received written
notice from Landlord objecting to Tenant's request for excess funds together
with an affidavit under oath identifying the reason or reasons which constitute
the basis for the Escrow Agent to continue holding all or a portion of the funds
requested by Tenant.
5. The funds paid to Escrow Agent by Tenant pursuant to this Agreement
shall be deposited by Escrow Agent. The funds deposited shall be invested in
United States Treasury Bills, Bonds and Notes. Subject to the foregoing,
investment direction of the funds deposited shall be the sole responsibility of
Tenant and all interest earned on the funds deposited shall be paid to Tenant.
6. Any Escrow Agent receiving funds or equivalent pursuant to this
Agreement is authorized and agrees by acceptance thereof to deposit promptly and
to hold same in escrow and subject to clearance thereof to disburse same in
accordance with terms and conditions of this Agreement. Failure of clearance of
funds shall not excuse performance by the Tenant. In the event of doubt as to
Escrow Agent's duties or liabilities under the provisions of this Agreement, the
Escrow Agent may in Escrow Agent's sole discretion, continue to hold the subject
matter of this escrow until the parties mutually agree to the disbursement
thereof, or until a judgment of a court of competent jurisdiction shall
determine the rights of the parties thereto, or Escrow Agent may deposit same
with the clerk of the circuit court having jurisdiction of the dispute, and upon
notifying all parties concerned of such action, all liability on the part of the
Escrow Agent shall fully terminate, except to the extent of accounting for any
items theretofore delivered out of escrow. In the event
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of any suit between Landlord and Tenant wherein the Escrow Agent is made a part
by virtue of acting as an Escrow Agent hereunder, or in the event of any suit
wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow
Agent shall be entitled to recover reasonable attorney's fees and costs
incurred, said fees and costs to be charged and assessed as court costs in favor
of the prevailing party. All parties agree that the Escrow Agent shall not be
liable to any party or person whomsoever for misdelivery to Landlord or Tenant
of items subject to this escrow, unless such misdelivery shall be due to willful
breach of this Agreement or gross negligence on the part of the Escrow Agent.
7. This Agreement shall be deemed terminated and cancelled upon Escrow
Agent releasing all funds held pursuant to this Agreement. Upon the expiration
of the seventh (7th) lease year, Escrow Agent shall release all funds held
pursuant to this Agreement, not otherwise disbursed hereunder, to Tenant.
8. No prior or present agreements or representations shall be binding upon
any of the parties hereto unless incorporated in this Agreement. No modification
or change in this Agreement shall be valid or binding upon the parties unless in
writing, executed by the parties to be bound thereby.
9. This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
Witnesses: VIA XXXXXX ASSOCIATES,
Landlord
------------------------------
------------------------------- By:
-------------------------------
MACKENZIE INVESTMENT
MANAGEMENT, INC., Tenant
Witnesses:
------------------------------
------------------------------- By:
-------------------------------
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Escrow Agent's Acceptance
The undersigned, the Escrow Agent, under this Agreement hereby agrees to
serve as Escrow Agent pursuant to the terms and provisions of the foregoing
Agreement.
Dated: ______________, 19___.
XXXXXXX BANK OF FLORIDA,
Escrow Agent
By:
-------------------------------
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