1
Exhibit 10.17
OFFICE LEASE
This Lease is made this 20 day of MARCH, 2000 by and between BOCA II ASSOCIATES,
LTD., a Florida limited partnership ("LANDLORD") and MACKENZIE INVESTMENT
MANAGEMENT, INC., a DELAWARE CORPORATION ("TENANT").
WITNESSETH:
BASIC LEASE PROVISIONS:
1.1. Project Name: First Union Plaza
The Project includes: An office building designated as Building Two
(Building Two is also referred to herein as the "Building"), a bank
building designated as Building One (Building One and Building Two
collectively referred to as the "Office Property"), a parking garage
facility, and the land and other improvements within the Project
boundaries. The term Project does not include any residential
property.
Project Boundaries: See Exhibit A
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - as to Building Two
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Building: Two
Unit/Suite No.: TBD
Floor: The entire 4th, 5th & 6th
1.2. Area of Premises: Approximately 40,786 rentable square feet as
reflected on the floor plan attached hereto as Schedule 1. (said Area
shall be adjusted in the event the final plans and specifications or,
only to the extent provided in this Section 1.2, the as-built
condition for the Premises reflect an alternate rentable square
footage). After Landlord's completion of the Building, the area of the
Premises and the Building shall be measured by Landlord's architect at
Landlord's sole expense using the BOMA ANSI Z65.1 1996 measurement
standards as further limited by Landlord's representation to Tenant
that the common area loss factor of the Building shall not exceed 12%,
and Landlord's architect shall certify the accuracy of such
measurements to Tenant. If Landlord's architect determines that in
fact the Premises contain less than 40,786 square feet of rentable
area (or if Tenant causes the Premises to be re-measured by its
architect and determines a 5% or greater error in the measurement by
Landlord's architect, in which case Landlord shall reimburse Tenant
for its out-of-pocket costs in re-measuring the Premises), Base Rent
and Tenant's Percentage Share shall be ratably reduced. If the
Premises contain more than 40,786 square feet of rentable area, there
shall be no adjustment to Base Rent and Tenant's Percentage Share.
Notwithstanding anything herein to the contrary, in no event will be
Premises be deemed to contain more rentable area than results by
multiplying the usable area (as determined by BOMA ANSI Z65.l 1996) of
the Premises not including the bathrooms and increasing such usable
area by 12%.
1
2
1.3. Tenant's Percentage Share: 46.08% (said Percentage Share shall be
adjusted in the event the rentable area of the Building or the Project
is other than as stated herein or is increased or decreased).
Based upon Premises of 40,786 rentable square feet in Building Two,
which contains approximately 88,509 rentable square feet.
1.4. Commencement Date of Lease: March 1, 2001 subject to the Landlord
delivering Tenant possession of the Premises in shell condition four
(4) months prior to Commencement Date, subject to extension for Force
Majeure or Tenant Delay ("Delivery Date"). Said four (4) month period
is referred to as the Construction Period. Provided, however, if the
Delivery Date (defined below) does not for any reason including Force
Majeure (but excluding Tenant Delay) occur by the Outside Date
(defined as January 1, 2001), Tenant shall, as its sole and exclusive
remedy, be entitled to either (i) cancel this Lease by notice to
Landlord given within 20 days after the expiration of the Outside
Date, in which case Landlord shall have no further liability to Tenant
or (ii) extend the Outside Date for a thirty (30) day period. Tenant's
right to cancel this Lease or extend the Outside Date (as extended)
shall continue for successive thirty (30) day periods until the
Delivery Date has occurred. Shell condition means that all of the
following have occurred: (i) substantial completion all of Landlord's
Building Standard Improvements have been fully completed but for punch
list items that do not materially or adversely interfere with or delay
performance or completion of Initial Tenant Improvements (such
capitalized terms are defined in the Construction Rider attached to
this Lease); and (ii) if Tenant cannot obtain a building permit for
the Initial Tenant Improvements because Landlord's Building Standard
Improvements have not been completed or by reason of any outstanding
permit or approval related to the Project or the Building ("Tenant
Building Permit Condition"), then Shell condition shall not occur
until Landlord has remedied the situation. The Commencement Date shall
be delayed by the number of days (not to exceed 3 months) in which
completion of the Initial Tenant Improvements is delayed due to Force
Majeure and Landlord Delay, but in no event shall the Commencement
Date be extended for Tenant Delays. The Commencement Date shall also
be delayed based on the number of days in which issuance of a
certificate of occupancy for the Premises following completion of the
Initial Tenant Improvements is delayed on account of there not having
been issued such necessary governmental approvals as are a condition
precedent to Tenant receiving a certificate of occupancy for the
Premises. Landlord Delay includes without limitation the following
(but only to the extent, and only for such period, that the event
actually causes a delay in completion of the Initial Tenant
Improvement): failure of Landlord (i) to deliver the detailed Building
drawings (including mechanical, electrical, structural and plumbing)
to Tenant, at Landlord's expense, within 15 days after the date of
this Lease; (ii) to construct Landlord's Building Standard
improvements in compliance with Laws as of the Delivery Date; (iii) to
correct any latent defects in Landlord's Building Standard
Improvements; (iv) to construct in accordance with approved detailed
Building drawings, subject to changes which do not materially or
adversely effect Tenant's use or occupancy of the Premises or
construction of the Initial Tenant Improvements and any other
modification approved in writing by Tenant or required by Law (v)
material discrepancies between the Building drawings submitted to
Tenant and the actual as-built condition of Landlord's Building
Standard Improvements and the Premises.
1.5. Expiration Date of Lease: The last day of the Lease Term. The Lease
term is a period of One Hundred and Forty Four (144) months commencing
on the Rent Commencement Date, as such Lease Term may be extended in
accordance with this Lease.
1.6. Rent Commencement Date: the earlier of (i) Commencement Date of Lease
or (ii) when Tenant opens for business; but in no event will the
Commencement Date be sooner than March 1, 2001.
2
3
1.7. Base Rent: $856,506.00 per year OR $ 21.00 per rentable square foot
per year, payable in equal monthly installments of $71,375.50 per
month, subject to rental adjustment as hereinafter provided. In
addition to Base Rent, Tenant shall pay Operating Expense Rent in
accordance with Paragraph 1.14 & 6.1. Notwithstanding the foregoing,
Landlord will ▇▇▇▇▇ the Base Rent for 28,624 rentable square feet for
the initial six (6) months of the lease term. Total base rental
abatement is $300,552.
1.8. Security Deposit: None
1.9. Permitted Use: Tenant has the use of Premises for general office
purposes only. Landlord agrees not to lease any space (within Building
Two) over 7,500 rentable square feet to any company or corporation
whose primary business is in the sale or administration of mutual
funds. Landlord warrants and represents that it (i) has not entered
into any agreement or other undertaking that would in any way
preclude, limit or restrict Tenant's permitted use including Tenant's
sale and administration of mutual funds and (ii) is not aware of any
such agreement, undertaking or restriction of record encumbering the
Building that would in any way preclude, limit or restrict Tenant's
sale and administration of mutual funds.
1.10. Trade Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇ or any other name under which Tenant or any
permitted assignee or subtenant chooses to operate.
1.11. Parking Spaces: Landlord shall make available to Tenant without charge
a number of unreserved and unassigned parking spaces within the
Parking Garage equal to 2.5 parking spaces for every 1,000 square feet
of the Premises and any additional space leased by Tenant, without
charge to Tenant. Additionally, Tenant hereby agrees to pay Landlord
for reserved and assigned parking spaces equal to 1 parking spaces
within the Parking Garage for every 1,000 square feet of the Premises
and any additional space leased by Tenant, at a charge of $50.00 per
parking space per month throughout the term of the Lease, which
payment shall be due and payable at the time of payment of Base Rent
and shall be considered additional rent due under this Lease. The
location of the reserved parking spaces shall be mutually agreed to by
Tenant and Landlord. Tenant acknowledges and agrees that the parking
in the Project Garage is on a co-usage basis with other owners and
permitted users in the Project, except that Tenant's reserved parking
spaces in the Project Garage shall be available for its exclusive use
between the hours 8:00 a.m. and 6:00 p.m., Monday through and
including Friday, excluding any and all municipally recognized
holidays (the "Normal Parking Hours"). After Normal Parking Hours,
fifty percent (50%) of the reserved parking allocated to Tenant shall
remain available for Tenant's exclusive use and the remaining fifty
percent (50%) of the reserved and one hundred percent (100%) of the
unreserved parking allocated to Tenant shall be on a co-usage basis
with other owners and permitted users in the Project, subordinate to
the rights of the adjoining residential development and subject to
availability. Notwithstanding the foregoing, Landlord will ▇▇▇▇▇ the
reserved parking additional rent for the initial twelve (12) months of
the lease terms. Total parking additional rent abatement is $24,000.
1.12. Late Charges: The parties agree that late payment by Tenant to
Landlord of rent will cause Landlord to incur costs not contemplated
by this Lease, the amount of which is extremely difficult to
ascertain. Therefore, the parties agree that if any installment of
rent is not received by Landlord within Five (5) days after rent is
due, Tenant will pay to Landlord a sum equal to ten percent (10%) as a
percentage of the delinquent monthly payment as a late charge;
provided, however, that no more than once in any calendar year,
Landlord agrees to waive its right to collect such late charge on such
payment of rent if such payment is made no later than the fifth (5th)
day after Landlord delivers to Tenant written notice of such late
payment. In addition all
3
4
rental and other charges due hereunder which are not paid when due
shall bear interest from the due date until paid at the Default Rate.
1.13. Rental Adjustment(s) during initial term, commencing on the first
anniversary of the Rental Commencement Date (subject to modification
as set forth in Section 1.2 above):
ADJUSTMENT DATE ADJUSTED MONTHLY RENT
--------------- ---------------------
YEAR 2 $73,074.91
YEAR 3 $74,774.33
YEAR 4 $76,473.75
YEAR 5 $78,173.16
YEAR 6 $79,872.58
YEAR 7 $81,572.00
YEAR 8 $83,271.41
YEAR 9 $84,970.83
YEAR 10 $86,670.25
YEAR 11 $88,369.67
YEAR 12 $90,069.08
1.14. Calculation of Operating Expense Rent: Landlord estimates that the
Operating Expense Rent will be $8.75 per rentable square foot for Year
One (1) of the Term of the Lease. See PARAGRAPH 6.
Notwithstanding the foregoing, Landlord will ▇▇▇▇▇ the operating
expense rent for 28,624 per rentable square feet for the initial six
(6) months of the lease term. Total operating expense rent abatement
is $125,230.
Notwithstanding the foregoing the operating expense rent will be
capped as to not exceed $8.75 per rental square feet for the first
twelve months of the lease term. Also, Landlord will cap controllable
operating expenses as to not exceed a sum greater than five percent
(5%) over the preceding twelve (12) months of the term. Controllable
expenses do not include real state taxes, property and casualty
insurance and utilities.
1.15. Guarantee is purposely omitted.
4
5
1.16. Address for payment of rent and notices:
Landlord: Tenant:
Boca II Associates, Ltd. Mackenzie Investment Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Accounts Payable Attention: ▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Copies of all notices shall be sent to: Copies of all notices shall be sent to:
▇▇▇▇▇ Partners Realty, Ltd. Mackenzie Investment Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Property Manager Attention: ▇▇▇▇▇ ▇▇▇▇▇
phone (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Holland & Knight LLP
I East Broward Boulevard Suite 1300
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
phone (▇▇▇) ▇▇▇-▇▇▇▇
fax (▇▇▇) ▇▇▇-▇▇▇▇
1.17. Broker: The Brokers are: ▇▇▇▇▇ Partners Realty, Ltd. and ▇▇▇▇▇▇▇ &
Wakefield of Florida, Inc. and Landlord will bear the cost of the
commission payable to Broker in connection with this Lease. Landlord
and Tenant warrant and represent to each other that they have not
consulted or negotiated with any broker or finder with regard to the
Premises or this Lease other than Broker. If either party shall be in
breach of the foregoing warranty, such party shall indemnify the other
against any loss, liability and expense (including attorneys' fees and
court costs) arising out of claims for fees or commissions from anyone
having dealt with such party in breach.
2. DEFINITIONS: Unless the context otherwise specifies or requires, the
following terms will have the meanings set forth below:
2.1. COMMON AREAS: All areas and facilities outside the Premises and within
the exterior boundaries of the Project that do not consist of rentable
area and that are provided and designated by Landlord, in sole and
absolute discretion from time to time, for the general use and
convenience of Tenant and other tenants of the Project and their
authorized representatives, invitees and the general public. Common
Areas are areas within and outside of the Building in the Project,
such as common entrances, lobbies, pedestrian walkways, patios,
landscaped areas, sidewalks, service corridors, elevators, restrooms
(other than those entirely within any tenant's leased premises),
stairways, decorative walls, plazas, loading areas, roads, and parking
areas (including the parking garage, the use of which is shared by the
owners, tenants and occupants of the real property which is adjacent
to the Project). Notwithstanding the foregoing, only for purposes of
Landlord's
5
6
obligations to maintain and effect compliance with laws, but not for
purposes of affording rights of use with respect to persons or
entities other than Tenant and its invitees, the Common Areas shall
also include bathrooms located in the Premises.
2.2. OPERATING EXPENSES: All costs of operating, servicing, administering,
repairing and maintaining the Building (excluding costs paid directly
by Tenant and other tenants in the Project or otherwise reimbursable
to Landlord). In addition, Operating Costs shall include approximately
86.50% of the cost of operating, servicing, administering, repairing
and maintaining the Common Areas of the Office Property including but
not limited to the landscaping within the Office Property and
approximately 42.40% (apportioned to the Building) for the cost of
operating, servicing, administering, repairing and maintaining the
parking lot and/or garage within the Project boundaries (the "Project
Costs"). The proportionate share as used in the preceding sentence
shall be calculated using a fraction, the numerator of which is the
rentable area of the Building and the denominator of which is the
leasable area of all existing and planned improvements in the Project
and the adjoining residential development (leasable area includes
without limitation rentable area of office buildings and floor area of
the residential units, as applicable). All costs of operating,
servicing, administering, repairing and maintaining the Project that
are within the definition of Project Expenses include any reasonable
and necessary costs of operation, maintenance and repair, computed in
accordance with generally accepted accounting principles applied on a
consistent basis ("GAAP"), and will include, by way of illustration,
but not limitation the following (only as used in the definition of
Project Expenses for items (i) through (iv) below, the term "Project"
does not include Building One):
(i) all costs of managing, operating and maintaining the
Project, including, without limitation, wages, salaries,
fringe benefits and payroll burden for employees utilized in
the day to day operation of the Project; public liability,
flood, windstorm property damage, rent loss, all risk and all
other insurance premiums typically maintained for other
comparable properties in downtown Boca Raton Florida and paid
by Landlord with respect to the Project; heating, air
conditioning and ventilating ("HVAC") for the Building and
the building engineer's office located within the parking
garage, water, sewer, and electric utility charges (other
than with respect to utilities separately metered and paid
directly by Tenant or other tenants); the cost of contesting
the validity or amount of real estate and personal property
taxes and other Taxes or any governmental requirements;
janitorial services; access control; window cleaning;
elevator maintenance; fire detection and security devices and
services; gardening and landscape maintenance; trash,
rubbish, garbage and other refuse removal; pest control;
painting; facade maintenance; repairs, replacement, and
maintenance of personal property, fixtures, and improvements
in the Common Areas; lighting including light bulbs (it being
understood that due to inclusion of this item, Landlord
agrees to replace building standard light bulbs in the
Premises); exterior and partition (demising) wall repairs;
routine roof maintenance needed to continue roof warranties
including but not limited to the cost of a roof maintenance
agreement (however, this shall not include any repairs
contemplated by the roof warranty or replacement costs);
maintenance of all steam, water and other water retention and
discharging piping, culverts, fountains, pumps, weirs, lift
stations, catch basins and other areas and facilities whether
or not on-site; repair and repainting of sidewalks and roads
due to settlement and potholes and general repairs, sealing,
striping, blacktopping and maintenance but not resurfacing of
parking areas (including the parking garage); sanitary
control; depreciation of machinery and equipment used in any
of such maintenance and repair activities; management fees
not in excess of 4.5% of rents (Landlord agrees that
management fees will be in lieu of any administrative fees or
overhead); road sidewalk and driveway maintenance other than
resurfacing; and all other Project maintenance, repairs and
insurance.
6
7
(ii) the costs (amortized over the useful life of the item in
question together with a reasonable finance charge in
accordance with GAAP) of any capital improvements made to the
Building by Landlord for the purpose of reducing Operating
Expenses but only to the extent of actual savings achieved in
Operating Expenses (provided, however, the limitation that
such costs be limited to the actual savings achieved in
Operating Expenses shall be inapplicable to any capital item
for which Landlord obtains Tenant's prior written approval,
which approval shall not be unreasonably withheld,
conditioned or delayed);
(iii) the costs of supplies, materials and tools;
(iv) all real and personal property taxes (but not including
any personal property taxes levied with respect to any
personal property other than Landlord's located in the
Project), assessments (whether they be general or special and
whether they be imposed by any state, federal, local or
governmental body or special district), sewer rents, rates
and charges, transit taxes, taxes based upon the receipt of
rent (except to the extent paid directly by tenants to
Landlord) and any other federal, state or local government
charge, general, special, ordinary or extraordinary (but not
including income taxes), which may now or hereafter be levied
or assessed against the land upon which the Project stands,
benefiting the Project or the Project for such year or the
furniture, fixtures, machinery, equipment, apparatus, systems
and appurtenances used in connection with the Project or the
operation thereof (the "TAXES"). Notwithstanding the
foregoing, Taxes shall not include penalties, fines, late
charges.
Except as provided above, Operating Expenses shall not include:
(a) depreciation on the Project or any Common Areas;
(b) costs of space planning, tenant improvements, marketing expenses,
finders fees and real estate broker commissions or any other work with
respect to the leasing of rentable area;
(c) any and all expenses reimbursable either by an insurer, condemnor
or other person or entity, and any and all expenses for which Landlord
is reimbursed or entitled to reimbursement by a tenant in the Project
pursuant to a lease provision in such tenant's lease and any expenses
attributable to the parking garage for which Landlord is reimbursed by
the owner of the adjacent parcel which shares use of such garage;
(d) salaries for personnel above the grade of property manager(s) and
engineer(s);
(e) costs in connection with services or benefits of a type which are
not provided to Tenant, but are provided to another tenant or
occupant;
(f) ▇▇▇▇-ups on electricity and condenser cooling water for heat pumps
in excess of Landlord's costs therefor;
(g) Landlord's general overhead and administrative expenses;
(h) cost of repair or other work necessitated by the gross negligence
or willful misconduct of Landlord or Landlord's employee's contractors
or agents.
(i) the cost of repairs or replacements (a) necessitated by the
exercise of the power of eminent domain or (b) incurred by reason of
fire or other casualty.
(j) costs incurred in connection with the sale, financing or
refinancing of the Building (including mortgage debt), and rent
payable under any lease to which this Lease is or may become subject.
7
8
(k) costs incurred in negotiating or enforcing leases against tenants
(or prospective tenants), including attorneys' fees.
(l) advertising and promotional expenditures, and costs of signs in or
on the Building identifying the owner of the Building or other
tenants' signs, other than Building standard signage of the type
offered to tenants.
(m) the incremental cost of furnishing services such as non-Business
Hours HVAC to any tenant and costs incurred in performing work or
furnishing services for individual tenants.
(n) costs incurred by Landlord due to the violation by Landlord or any
tenant of the terms and conditions of any lease for space in the
Building.
(o) compensation paid by Landlord to persons engaged in commercial
concessions operated by Landlord (and not by a third party) in the
Building (e.g., a newspaper stand or shoeshine service or valet
parking).
(p) fines, penalties or other costs incurred by Landlord due to its
violation of this Lease, any other lease of space in the Project, or
any governmental rule or authority.
(q) costs for the purchase of sculptures, paintings or other objects
of art for the Project.
(r) any increase in insurance premium to the extent that such increase
is caused by or attributable to the use, occupancy or act of another
tenant.
(s) costs relating to defects in the construction of the Building or
in the Building equipment.
(t) expenditures in connection with Hazardous Substances.
(u) expenses of the Building and the Common Areas complying with
Americans with Disabilities Act of 1990, and the related implementing
regulations, codes, rules and guidelines, as such acts and related
regulations, codes, rules and guidelines may be amended from time to
time (collectively, the "ADA"), or any similar federal, state, county
or municipal law or ordinance.
(v) costs in connection with trade and professional organizations.
(w) capital costs other than as expressly permitted above.
(x) reserves including Any amounts prepaid for any year other than the
then-current year.
(y) bad debts.
(z) rent on any space used as a leasing office.
(aa) any roofing repairs (but specifically excluding routine
maintenance needed to continue the roof warranties and the cost of a
roof maintenance agreement) during the first twelve (12) years after
the issuance of a certificate of occupancy for the Building.
(bb) rent on any space used as a management office until such time as
the Building has achieved 50% leased.
(cc) costs incurred in compliance with the Americans with Disabilities
Act or statutes, laws, regulations or other legislation of similar
import for the Building.
8
9
2.3 RENTABLE SQUARE FEET: The number of square feet of net rentable area
as computed in accordance with BOMA standard ANSI Z65. 11996.
2.4 DEFAULT RATE: Two Percent above the Prime Rate announced by Citibank
NA, from time to time, for its most favored customers [or such similar
index if such is not available, the prime rate announced by the Wall
Street Journal), not to exceed the maximum lawful rate of interest.
3. PREMISES:
3.1. LEASE OF PREMISES: Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the term and subject to the agreements,
covenants, conditions and provisions set forth in this Lease, to which
Landlord and Tenant hereby mutually agree, the premises (the
"PREMISES") described in PARAGRAPHS 1.1 and 1.2 above.
3.2. PROJECT: The Premises are a part of the office project (the "Project")
described in PARAGRAPH 1. Landlord may increase, reduce or change the
number, dimensions or locations of the walks, buildings, lobbies,
parking and other Common Areas and other improvements located in the
Project in any manner that Landlord, in its sole discretion shall deem
proper; provided, however, notwithstanding anything to the contrary in
this Lease, Landlord shall not be entitled to materially and adversely
modify the configuration or location of the Premises or Tenant's
reserved parking spaces (however, with respect to Tenant's reserved
parking, Landlord shall be entitled to materially or adversely modify
the configuration or location of Tenant's reserved parking with
Tenant's prior consent (which consent shall not be unreasonably
withheld, conditioned or delayed). Landlord further reserves the right
to make alterations and/or additions to and to build or cause to be
built additional stories on the Building in which the Premises are
situated and to add any buildings within the Project site so long as
such activities do not materially and adversely interfere with
Tenant's use and enjoyment of the Premises and its reserved parking
spaces, including without limitation access to both. Landlord reserves
the right to install, maintain, use, repair and replace, pipes, ducts,
conduits and wires leading through the Premises (limited to the area
above the ceiling) and serving other parts of the Project in a manner
that will not materially interfere with Tenant's use of the Premises.
Landlord will also have the right to increase and expand the size of
the Project and/or the Project site by adding additional land,
buildings and other structures to the Project. Landlord shall have the
right to grant easements for ingress, egress or other purposes within
or across the Project or the Project site. Landlord shall have the
right to change the Project's name without notice (subject to Tenants
rights as set forth in the paragraph below entitled "Graphics"), to
change the Project's street address upon 90 DAYS prior notice, to
grant to any person or entity the exclusive right to conduct any
business or render any service in or to the Project, (provided such
exclusive right shall not operate to prohibit Tenant from using the
Premises for the purpose set forth in PARAGRAPH 1), to retain at all
times master keys or passkeys to the Premises (however Landlord's
right to access the Premises is subject to the terms of this Lease),
and to place such signs, notices or displays as Landlord reasonably
deems necessary or desirable upon the roof and exterior of the
Project. Landlord has the right to allow the owners, tenants and
guests of the parcel which is adjacent to the Project to share the use
of the parking garage which is included in the Project.
3.3. RELOCATION OF TENANT: PURPOSELY OMITTED
4. COMMON AREAS:
4.1. TENANT'S RIGHT TO USE COMMON AREAS: Landlord grants Tenant and its
authorized representatives and invitees the non-exclusive right to use
the Common Areas with others who are entitled to use the Common Areas
subject to Landlord's rights as set forth in this Lease.
9
10
4.2. LANDLORD'S CONTROL: Landlord has the right to:
(a) establish and enforce reasonable rules and regulations applicable
to all tenants concerning the maintenance, management, use and
operation of the Common Areas (however, none of Landlord's rules and
regulations which are not attached hereto shall be effective against
Tenant if, to any extent, they are in conflict with the Lease or
impose undue burden on Tenant; and Landlord agrees to enforce the
rules and regulations on a non-discriminatory basis);
(b) close, if necessary, any of the Common Areas to prevent dedication
of any of the Common Areas or the accrual of any rights of any person
or of the public to the Common Areas;
(c) close temporarily any of the Common Areas for maintenance
purposes;
(d) select a person, firm or corporation which may be an entity
related to Landlord to maintain, manage, and/or operate any of the
Common Areas;
(e) allow the owners, tenants and visitors of the real property and
improvements, which are adjacent to the Project to share the use of
the parking garage, subject to the terms of Section 1.11 herein.
Notwithstanding the provisions of this Lease, in exercising its rights
hereunder, Landlord will provide Tenant and its invitees reasonable
access to and from the Premises, the Building and the parking garage
at all times.
5. RENT:
5.1. BASE RENT: Tenant will pay to Landlord as rent for the use and
occupancy of the Premises at the times and in the manner provided
below, Base Rent in the amount specified in PARAGRAPH 1 above payable
in advance on the Rent Commencement Date and on or before the first
day of each and every successive calendar month during the term hereof
without demand, setoff or deduction except as expressly set forth in
this Lease. Notwithstanding anything in this Lease to the contrary,
Tenant shall be entitled to deduct against rent and other charges due
from Tenant, as and when same become due and payable any final
monetary judgment Tenant obtains against Landlord. Any monetary
obligation owed by Landlord to Tenant shall bear interest from the
date accrued at the Default Rate defined herein. Notwithstanding the
foregoing, in the event that Landlord is the prevailing party on
appeal, Tenant agrees to pay to Landlord, within thirty (30) days of
the issuance of the judgment on appeal all amounts deducted by Tenant
against rent and other charges due from Tenant together with Default
Interest defined herein accrued from the date of the trial court
judgment.
5.2. SALES TAX: ADDITIONAL RENT: In addition to the Base Rent, Tenant
agrees to pay Landlord monthly all sales or use taxes or excise taxes
imposed or levied by the State of Florida or any other governmental
body or agency against any rent or any other charge or payment
required hereunder to be made by Tenant to Landlord. All sums of money
as shall become due and payable by Tenant to Landlord under this
Lease, including Tenant's Percentage Share of Operating Expenses,
shall be additional rent which Tenant shall be obligated to pay.
Landlord shall have the same remedies for default in the payment of
additional rent or sales tax as are available to Landlord in the case
of a default in the payment of Base Rent.
6. OPERATING EXPENSES:
6.1. OPERATING EXPENSES RENT: In addition to Base Rent, Tenant shall pay
Tenant's Percentage Share, as specified in PARAGRAPH 1 above, of the
Operating Expenses paid or incurred by Landlord in each year
("Operating Expenses Rent").
10
11
6.2. PAYMENT: Prior to the Commencement Date and thereafter during December
of each calendar year or as soon thereafter as practicable, Landlord
will give Tenant written notice of its estimate (line item and
detailed support included) of Operating Expenses Rent for the ensuing
calendar year. On or before the first day of each month during the
ensuing calendar year, Tenant will pay to Landlord 1/12TH of such
estimated amounts, provided that if such notice is not given in
December, Tenant will continue to pay on the basis of the prior year's
estimate until the month after such notice is given. If at any time or
times it appears to Landlord that the amounts payable for Operating
Expenses Rent for the current calendar year will vary from its
estimate by more than 10%, Landlord, by written notice to Tenant, will
not more than once per calendar year revise its estimate for such
year, and subsequent payments by Tenant for such year will be in an
amount so that by the end of such year Tenant will have paid a total
sum equal to such revised estimate. Landlord will indicate in its
notice to Tenant the reasons Landlord believes its estimate is low by
more than 10%.
6.3. STATEMENT: Within 120 DAYS after the close of each calendar year or as
soon after such 120 day period as practicable, Landlord will deliver
to Tenant a statement of amounts of Operating Expenses Rent payable
under this Lease for such calendar year. If such statement shows an
amount owing by Tenant that is more than the estimated payments for
such calendar year previously made by Tenant, Tenant will pay the
deficiency to Landlord within 30 days after delivery of the statement.
If the statement shows an amount which is less than the estimated
payments previously paid by Tenant for the calendar year, provided
there is no uncured Tenant default, Landlord will remit the amount
owed Tenant with the statement or shall advise Tenant that Tenant has
a credit for such amount which will be applied to the rental
installments next coming due. Tenant has the right, exercisable no
more than once each calendar year on reasonable notice and at a time
reasonably acceptable to Landlord, to cause an audit to be performed
at Tenant's sole cost and expense of Landlord's operations and/or
books and records pertaining to Operating Expenses for the preceding
calendar year. The Tenant's audit company must a third party "fee
based" firm reasonably approved by Landlord. Tenant shall also have
the right to review Landlord's books and records in advance of any
such audit using Tenant's personnel and at Tenant's sole cost and
expense, and Landlord will cooperate with such review, provided such
review occurs at Landlord's office during normal business hours and
Tenant give Landlord reasonable advance notice. In the event it is
ultimately determined by agreement of Landlord and Tenant or by final
court judgment that Landlord has overstated Operating Expenses by more
than 7%, within thirty (30) days after demand therefor by Tenant,
Landlord will reimburse Tenant for any overstatement of Operating
Expenses and the reasonable costs of such audit incurred by Tenant.
Further, Landlord will, within thirty (30) days after demand therefore
by Tenant, remit to Tenant any overpayment of Operating Expenses upon
such ultimate determination. Notwithstanding the foregoing, in the
event that Landlord is the prevailing party on appeal, Tenant agrees
to pay to Landlord, within thirty (30) days of the issuance of the
judgment on appeal all amounts paid by Landlord to Tenant together
with Default Interest defined herein accrued from the date of the
trial court judgment.
6.4. PRORATION: If for any reason this Lease terminates on a day other than
the last day of a calendar year, the amount of Operating Expenses Rent
payable by Tenant applicable to the calendar year in which such
termination occurs will be prorated on the basis which the number of
days from the commencement of such calendar year to and including such
termination date bears to 365.
6.5. COMPUTATION: Tenant's Percentage Share of the Operating Expenses is
the proportion that the rentable square footage leased by Tenant bears
to the total rentable square footage of the Project, as determined by
Landlord. Notwithstanding any provision of this PARAGRAPH to the
contrary, if the Project is less than ninety-five percent (95%) leased
and/or occupied during any calendar year an adjustment shall be made
so that Operating Expenses Rent shall be computed for such
11
12
year as though ninety-five (95%) of the Project had been leased and
occupied during such year. Notwithstanding anything herein to the
contrary, in no event shall Landlord be entitled to recover more than
100% of its actual Operating Expenses in the aggregate from all
tenants of the Project.
6.6. TAXES PAYABLE BY TENANT: Tenant shall be directly responsible for
taxes upon, measured by, or reasonably attributable to the cost or
value of Tenant's equipment, furniture, trade fixtures and other
personal property located in the Premises (as "personal property" is
defined by the appropriate taxing authority).
7. USE OF PREMISES:
7.1. EFFECT ON INSURANCE: Tenant shall not use any portion of the Premises
for purposes other than those specified in PARAGRAPH 1. In the event
Tenant's particular use of the Premises (as opposed to general office
use that would be conducted by any tenant occupying the Premises)
would increase the existing rate of insurance upon the Project,
Landlord shall notify Tenant and Tenant shall either discontinue the
particular use giving rise to such consequences (provided that Tenant
agrees to pays Landlord within thirty days of request therefore for
any increased cost incurred to the date of discontinuance of such
particular use) or pay Landlord for the increased cost as and when
same becomes due and payable. In no event shall Tenant's particular
use of the Premises (as opposed to general office use that would be
conducted by any tenant occupying the Premises) be permitted if it
would cause cancellation of insurance policies covering the Project.
7.2. CONTINUOUS OPERATION: Except for (i) temporary closures due to
casualty, (ii) a temporary closure not to exceed 4 months in
connection with any permitted assignment of this Lease or sublease of
the Premises or (iii) temporary closures not to exceed 4 months every
three years in connection with Tenant's repairs or alterations to the
Premises, Tenant will not leave the Premises unoccupied or vacant and
will continuously conduct and carry on in the Premises the type of
business for which the Premises are leased during Tenant's normal
business hours. Subject to Landlord's reasonable access control with
respect to Tenant's invitees, Tenant and its invitees shall have
unrestricted access to the Premises, 24 hours per day, 7 days per
week, 52 weeks per year.
7.3. MISCELLANEOUS RESTRICTIONS: Tenant will operate from the Premises
using the Trade Name set forth in PARAGRAPH 1. Tenant will not use the
Premises for or permit in the Premises any offensive, noisy, or
dangerous trade, business, manufacture or occupation. Tenant agrees
not to cause, permit or suffer any waste or damage, disfigurement or
injury to the Premises or the fixtures or equipment thereof or the
Common Areas. Tenant will not use the Premises for washing clothes or
cooking and nothing will be prepared, manufactured or mixed in the
Premises which might emit any offensive odor into the Project;
provided, however, Tenant shall be entitled to brew coffee and tea and
use a microwave oven and toaster in the Premises for internal use only
and not for resale. Tenant will not obstruct the sidewalks or Common
Areas in the Project or use the same for business operations or
advertising. Tenant will not use the Premises for any purpose which
would create unreasonable elevator loads, cause structural load as set
forth in the Construction Rider to be exceeded or adversely affect the
mechanical, electrical, plumbing or other base building systems.
Tenant will at all times comply with the rules and regulations of the
Project attached hereto as SCHEDULE 3 and, subject to limitations
expressed in Section 4.2 above, with such additional rules and
regulations as may be adopted by Landlord from time to time.
12
13
8. PARKING:
8.1. TENANT'S PARKING RIGHTS: Subject to the rules and regulations of the
Project, Tenant shall be entitled to the number of reserved and
unreserved Parking Spaces set forth in PARAGRAPH 1 above. Only
automobiles, motorcycles and pickup trucks will be permitted on the
parking areas.
8.2. LANDLORD'S CONTROL OVER PARKING: Tenant and its authorized
representatives will park their cars only in areas specifically
designated for that purpose by Landlord. Within ten (10) days after
written request by Landlord, Tenant will furnish to Landlord the
license numbers assigned to its cars and the cars of all of its
authorized representatives. If any car owner fails to park its car in
the designated parking areas, Landlord may tow the car at the cost of
the offending owner. Tenant will not park or permit the parking of any
vehicles adjacent to loading areas so as to interfere in any way with
the use of such areas. Any loading and unloading shall occur only
within designated by Landlord as loading areas within the parking
garage. Landlord shall have the right, in Landlord's sole discretion,
to designate parking spaces for the exclusive use of a particular
tenant or particular tenants; provided, however, (i) none of Tenant's
reserved parking spaces shall be so designated and (ii) no such
designation shall reduce the number of spaces to which Tenant is
entitled. Landlord will have the right to institute reasonable
procedures and/or methods to enforce the terms of this SUBPARAGRAPH.
9. GRAPHICS: Tenant, at Tenant's sole cost and expense, will install and
maintain all letters or numerals (including Tenant's logo) on or by
the entrance doors for the Premises. Landlord at Landlord's sole cost
shall place Tenant's name (as well as the name of any key employees
and affiliates of Tenant as it designated, up to a total of five (5)
collective names) on the building lobby directory. Landlord shall
permit the Tenant, at Tenant's sole cost to install exterior signage
placed on the top position of the Federal Highway and Camino Real
curved monuments sign (North side). In the event that an additional
monument sign is located at the corner of Federal Highway and 9th
Street, Tenant shall be entitled to place its signage on the top
position of such additional monument, at Tenant's sole cost; and
Tenant shall exercise its right to signage on the additional monument
by notifying Landlord of such fact within 30 days after Landlord's
notice to Tenant regarding the availability of the additional
monument. All such letters and numerals shall be in the form specified
by Landlord, and no other shall be used or permitted on the Premises.
Tenant shall not place any signs within the Premises which are visible
from the outside the Premises without Landlord's prior written
approval. In the event Landlord allows Building signage identifying
any person or entity (other than Landlord's name), Tenant shall be
entitled to install Building signage identifying Tenant that is at
least equal to such signage in terms of size, prominence and
visibility.
10. ASSIGNMENT AND SUBLETTING; ENCUMBRANCE: Tenant shall not assign this
Lease or sublet any portion of the Premises without prior written
consent of the Landlord, which will not be unreasonably withheld or
delayed, it being understood that it shall be reasonable for Landlord,
among other things, to withhold consent if Landlord is reasonably
dissatisfied with the financial responsibility, identity, reputation
or business character of the proposed assignee or sublessee. Any
change in the ownership of Tenant, if Tenant is a corporation or
partnership, shall constitute an assignment for purposes of this
PARAGRAPH; provided, however, this sentence shall be inapplicable to
Mackenzie Investment Management, Inc. and its affiliates.
Notwithstanding any consent by Landlord, Tenant shall remain liable
(along with each approved assignee and sublessee, which shall
automatically become liable for all obligations of Tenant hereunder
with respect to that portion of the Premises so transferred, except in
the case of a sublease, the sublessee shall only retain such liability
during the term of its sublease), and Landlord shall be permitted to
enforce the provisions of this Lease directly against Tenant or any
assignee or sublessee without proceeding in any way against any other
party. In the event of an assignment, contemporaneously with the
granting of Landlord's consent, Tenant shall cause the assignee to
expressly assume in writing and agree to perform all of the covenants,
duties and obligations of Tenant hereunder
13
14
and such assignee shall be jointly and severally liable therefor along
with Tenant (but any assignee who does not expressly assume such
obligations in writing shall nevertheless be deemed to have assumed
such obligations by acceptance of any such assignment). No usage of
the Premises different from the usage provided for in PARAGRAPH 1
above shall be permitted, and all other terms and provisions of the
Lease shall continue to apply after such assignment or sublease.
Tenant shall not make or consent to any conditional, contingent or
deferred assignment of some or all of Tenant's interest in this Lease
without the prior written consent of Landlord, which Landlord may
withhold in its sole and absolute discretion. Tenant shall not enter
into, execute or deliver any financing or security agreement that can
be given priority over any mortgage given by Landlord or its
successors, and, in the event Tenant does so execute or deliver such
financing or security agreement, such action on the part of Tenant
shall be considered a breach of the terms and conditions of this Lease
and a default by Tenant entitling Landlord to such remedies as are
provided for in this Lease. Landlord shall have the right to assign or
transfer, in whole or in part, Landlord's rights and obligations
hereunder and in the Project and the Premises and subsequent to any
such assignment Landlord shall have no further obligations to Tenant.
In the event of any assignment or sublease, Tenant shall pay to
Landlord any "Transfer Premium" received by Tenant in connection
therewith. As used herein, "Transfer Premium" shall mean all rent,
real estate profit (defined as any proceeds relating to the sale of
services, personal property or Tenant's good will that, in each case,
are in excess of the fair market value thereof) and operating expense
payments paid by the assignee or sublessee to Tenant in excess of the
Base Rental, Operating Expenses and other amounts due from Tenant
hereunder (collectively, the "Consideration"), less any actual
out-of-pocket expenses paid by Tenant to unrelated third parties to
procure or in connection with such assignment or sublease and less the
value of any rent abatement or other free rent afforded the assignee
or subtenant. Notwithstanding the foregoing, Landlord shall be deemed
to have granted consent to any assignment or sublease if it fails to
give its objection with respect thereto in writing in reasonable
detail within ten (10) days of its receipt of Tenant's request. Tenant
shall have the right without Landlord's consent to sublet or assign an
affiliate and any entities into which Tenant is merged or
consolidated, or to an entity to which a substantial portion of
Tenant's assets are transferred. An affiliate means any corporation
which, directly or indirectly, controls or is controlled by or is
under common control with Tenant (and for this purpose "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities or by
contract or otherwise). In the event that Tenant subleases the
Premises, Tenant and Landlord shall split all Consideration in excess
of the Base Rental, Operating Expenses and other amounts due from
Tenant hereunder 50%/50% after subtracting the cost of subleasing the
Premises which includes but is not limited to the value of any rent
abatement, brokerage commissions, tenant improvements, architectural
fees, moving allowance and legal fees.
11. ORDINANCES AND STATUTES: At Tenant's sole cost, Tenant will comply
with all statutes, ordinances and requirements of all municipal, state
and federal authorities now in force, or which may hereafter be in
force (collectively, all of the foregoing, including any applicable
laws, rules and regulations are referred to as "Laws"), pertaining to
Tenants particular use of the Premises, including, but not limited to
the Americans With Disabilities Act (ADA). The commencement or
pendency of any state or federal court abatement proceeding affecting
the Premises and resulting from Tenant's breach of its obligations
under this Lease shall, at the option of the Landlord, be deemed a
breach thereof. Notwithstanding anything to the contrary in this
Lease, Tenant shall be responsible to comply, at its sole cost and
expense (regardless of whether same constitute a capital expense) with
all Laws pertaining to Tenant's particular use of the Premises or for
changes required by Laws or ADA solely within Tenant's Premises, as
opposed to Laws or ADA which are generally applicable to the entire
Building.
At Landlord's sole cost, Landlord will comply with all Laws now in
force, or which may hereafter be in force, pertaining to the Building
which shall include ADA, including any required modifications thereof,
which cost attributed to capital expenditures shall be the sole
responsibility of Landlord. In the event that any restrooms within the
Building do not comply with all Laws or require refurbishing during
the Lease
14
15
Term, such costs shall be at the sole expense of Landlord.
12. MAINTENANCE, REPAIRS, ALTERATIONS:
12.1. TENANT'S OBLIGATIONS: Upon possession of the Premises, subject to
punch list items and latent defects (latent defects include without
limitation any failure of Landlord's Building Standard improvements to
comply with Laws), Tenant acknowledges that the Premises are in good
order and repair unless otherwise indicated herein. Tenant shall, at
its own expense and at all times, maintain the non-structural elements
of the Premises in good and safe condition and shall surrender the
same, at termination hereof, in accordance with Section 12.4 below.
Tenant, at Tenant's expense, shall be responsible for all repairs
required, excepting the electrical wiring, plumbing and HVAC
installations and any other building system upon the Premises, roof,
and the exterior walls, structural foundations, parking areas and
other Common Areas, which shall be repaired by Landlord and included
in Operating Expenses subject to limitations set forth above (except
that, subject to Section 16.8 below, Tenant shall be solely
responsible for the cost of repair with respect to any damage
occasioned by the negligent or intentional act of Tenant, its
employees, agents, contractors, and invitees for acts committed by
such invitees while present in the Premises).
12.2. LIMITS ON ALTERATIONS: Tenant may not make any structural improvement
or alteration to the Premises which may materially affect building
systems without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. Tenant specifically
recognizes and agrees that in no event shall any alterations or
improvements be connected to the glass window wall located on the
southeasterly side of the Building without the prior written approval
of Landlord as to the method of attachment (and in no event shall
there be any penetration of any kind to the window mullions).
Tenant may not make any nonstructural improvement or alteration (other
than painting, floor covering and wall covering) of the interior of
the Premises costing in excess of $25,000 without the prior written
consent of the Landlord, which shall not be unreasonably withheld or
delayed. In no event shall any Landlord's refusal to grant consent as
contemplated by the preceding sentence be based on aesthetic
considerations. Landlord's consent shall not be required for painting,
floor covering or wall covering. Prior to the commencement of any
repair, improvement, or alteration for which Landlord's consent is
required, Tenant shall give Landlord at least 2 DAYS written notice.
All alterations will be made by a licensed and insured contractor
consented to by Landlord and performed in a good and workmanlike
manner. All materials shall be of a quality comparable to or better
than those in the Premises and shall be in accordance with plans and
specifications reasonably approved by Landlord; however, this sentence
shall not apply to painting, floor covering or wall covering. Landlord
may condition its consent to any improvements or alterations upon
Tenant's obtaining such lien releases, waivers and contractors
insurance, as Landlord shall reasonably require; however, in no event
shall Tenant be required to post any bond or other form of security.
Landlord shall not charge Tenant any management, administration or
coordination fee related to alterations or repairs of the Premises
during the Lease term or any renewal thereafter.
12.3. LIENS: Subject to its entitlement to the Construction Allowance
referenced in the Construction Rider, Tenant will pay all costs of
construction done by it or caused to be done by it on the Premises as
permitted by this Lease. Tenant will keep the Project free and clear
of all construction, mechanic's, materialman's, laborer's and
supplier's liens, resulting from construction done by or for Tenant.
The interest of Landlord in the Premises and the Project shall not be
subject to liens for improvements made by Tenant. Any lien filed by
any contractor, materialman, laborer or supplier performing work for
Tenant shall attach only to
15
16
Tenant's interest in the Premises. Tenant agrees to indemnify, defend
(by counsel reasonably acceptable to Landlord) and hold harmless
Landlord from and against any and all costs and liabilities and any
and all mechanic's, materialman's or laborer's liens arising out of or
pertaining to any improvements or construction done by Tenant. All
persons and entities contracting or otherwise dealing with Tenant
relative to the Premises or the Project are hereby placed on notice of
the provisions of this PARAGRAPH, and Tenant shall further notify in
writing such persons or entities of the provisions of this PARAGRAPH
prior to commencement of any Tenant work in the Premises; provided,
however, Tenant's inadvertent failure to make such notification shall
not be deemed a default of this Lease. Landlord reserves the right, in
addition to the foregoing, to record in the public records a notice of
non-responsibility as provided for in the Construction Lien law. If
any construction, mechanic's, materialman's or laborer's lien is ever
claimed, fixed or asserted against the Premises or any other portion
of the Project in connection with any such Tenant work, Tenant shall,
within twenty (20) DAYS after receipt by Tenant of notice of such
lien, discharge same as a lien either by payment or by posting of any
bond as permitted by law. If Tenant shall fail to discharge any such
lien, whether valid or not, within twenty (20) DAYS after receipt of
notice from Landlord, Landlord shall have the right, but not the
obligation, to discharge such lien on behalf of Tenant and all costs
and expenses incurred by Landlord associated with the discharge of the
lien, including without limitation, attorneys' fees, shall constitute
additional rent hereunder and shall be immediately due and payable by
Tenant.
12.4. SURRENDER OF PREMISES: On the last day of the term hereof or on any
sooner termination, Tenant shall surrender the Premises to Landlord in
"as is" and "broom clean" condition, ordinary wear and tear and
casualty damage excepted, clear and free of debris. Tenant shall
repair any damage to the Premises occasioned by the installation or
removal of Tenant's trade fixtures, furnishings and equipment. Tenant
shall not be required to remove any tenant improvements. Tenant will
not be charged for any elevator service, supervision, guard service,
cleaning for its move out at the expiration of its lease term.
12.5 LANDLORD'S MAINTENANCE: Landlord shall maintain the Project including
all Common Areas in first class condition consistent with other
comparable office buildings in downtown Boca Raton, Florida.
Landlord's maintenance obligations shall include without limitation
the following: all maintenance, replacement and repair (including
sweeping and striping) necessary to maintain all driveways, sidewalks,
street and parking areas free of any material settling, reasonably
clear of standing water and in a sightly and serviceable condition;
maintenance of landscaping; and maintenance of Building lobby.
13. ENTRY AND INSPECTION: Tenant shall permit Landlord or Landlord's
agents to enter upon the Premises at reasonable times and upon
reasonable notification for the purpose of inspecting the same,
performing any services required of Landlord hereunder and showing the
Premises to potential and existing mortgagees and purchasers and
prospective tenants within the last six (6) months of the Lease term.
Landlord agrees to provide advance verbal notice and announce its
entry with respect to repairs to be conducted within the Premises,
provided however, Landlord's inadvertent failure to make such
notification shall not be deemed a default of this Lease. The
foregoing notwithstanding, Landlord is not required to give notice or
announce its entry to Tenant if Landlord must enter the Premises
because of an emergency or to perform janitorial and other services.
Tenant will permit Landlord at any time within 180 DAYS prior to the
expiration of this Lease, to permit potential tenants to inspect the
Premises. All entries by Landlord will be done in such a manner so as
to create the least possible disturbance to Tenant.
16
17
14. INDEMNIFICATION: Subject to PARAGRAPH 16.8 below, Tenant will
indemnify, defend (by counsel reasonably acceptable to Landlord),
protect and hold Landlord harmless from and against any and all
claims, demands, losses, damages, costs and expenses (including
attorney's fees) or death of or injury to any person or damage to any
property whatsoever arising in favor of third parties and out of or
relating to Tenant's breach or default under this Lease, including,
but not limited to Tenant's breach of PARAGRAPH 21 below or Tenant's
use or occupancy of the Premises or caused by Tenant or its agents,
employees or invitees. Landlord shall not be liable to Tenant for any
damage by or from any act or negligence of any co-tenant or other
occupant of the Project or by any owner or occupant of adjoining or
contiguous property or by any defect in or failure to maintain the
Project or the Premises. Tenant agrees to pay for all damage to the
Project as well as all damage to tenants or occupants thereof caused
by misuse or neglect of said Premises, its apparatus or appurtenances
or the Common Areas, by Tenant or Tenant's employees, agents arid
invitees. Notwithstanding anything to the contrary in this Lease, no
indemnity by Tenant shall extend to claims arising by virtue of
negligent or willful acts or omissions by Landlord or Landlord's
employees, agents or contractors. In the event it is adjudicated that
claim and other liabilities contemplated by this paragraph resulted
from the negligent or wrongful acts or omissions of Landlord, its
agents, contractors or employees, Landlord shall have a percentage
responsibility with respect to any judgments against Tenant resulting
from such claims as well as costs incurred by Tenant in its defense of
Landlord in connection with same. Landlord's percentage of
responsibility shall be equal to the percentage of its comparative
negligence as determined in a final court judgment.
Landlord shall indemnify and hold harmless Tenant from and against any
and all third party claims arising from Landlord's operation of the
Project. Notwithstanding anything to the contrary in this Lease, no
indemnity by Landlord shall extend to claims arising by virtue of
negligent or wrongful acts or omissions of Tenant or Tenant's
employees, agents or contractors. In the event of any third party
claim asserted against Tenant and Landlord based on acts or omissions
outside of the Premises, Landlord shall provide and pay for the cost
of Tenant's defense (using counsel selected reasonably acceptable to
Tenant) until such time as it is adjudicated that such claim(s)
resulted from the negligent or wrongful acts or omissions of Tenant,
its agents, contractors or employees. In the event of such
adjudication, Tenant shall have a percentage responsibility with
respect to any judgments against Landlord resulting from such claims
as well as costs incurred by Landlord in its defense of Tenant in
connection with same. Tenant's percentage of responsibility shall be
equal to the percentage of its comparative negligence as determined in
a final court judgment.
15. LANDLORD'S INSURANCE: At all times during the term of this Lease,
Landlord shall procure and maintain the following types of insurance
coverage (any company writing Landlord's insurance shall have a
financial rating not less than that which is maintained by prudent
owners of comparable office buildings in Boca Raton, Florida):
15.1 So called special form All Risk property insurance. The insurer used
by Landlord hereunder shall waive rights of subrogation against Tenant
for losses payable under such special form All Risk Property
insurance, and the Landlord shall hold Tenant harmless for any loss or
damage which is uninsured, such as a deductible, self-insured
retention, or co-insurance provision.
Commercial general liability insurance in an amount not less than
$1,000,000 for injury or death of one or more persons in a single
accident and for damage to property.
Landlord shall have the right to maintain such insurance as part of a
blanket or umbrella coverage, provided that Landlord obtains an
endorsement specifically identifying the inclusion of the Project and
that such coverage will not be diminished by other claims under the
policy below the coverage amounts required.
16. TENANT'S INSURANCE: At all times during the term of this Lease, Tenant
shall, at its sole expense,
17
18
procure and maintain the following types of insurance coverage:
16.1. GENERAL LIABILITY: Commercial general liability insurance against any
and all damages and liability, including attorneys' fees on account or
arising out of injuries to or the death of any person or damage to
property, however occasioned, in, on or about the Premises in amounts
not less than $1,000,000 for injury or death of one or more persons in
a single accident and for damage to property;
16.2. PERSONAL PROPERTY: Insurance adequate in amount to cover damage to or
replacement of, as necessary, Tenant's personal property in the
Premises including, without limitation, trade fixtures, furnishings,
equipment, goods and inventory;
16.3. EMPLOYERS LIABILITY/WORKERS COMPENSATION: Employer's liability
insurance and worker's compensation insurance providing statutory
state benefits for all persons employed by Tenant in connection with
the Premises as required by applicable law;
16.4. SPRINKLER: Insurance covering damage from leakage or sprinkler systems
now or hereafter installed in the Premises in an amount not less than
the current replacement cost covering Tenant's personal property,
Tenant's improvements and Tenant's trade fixtures.
16.5 OTHER INSURANCE: Such other insurance in such amounts as may be
required by a Landlord against other insurable hazards as at the time
are commonly insured against in case of prudent tenants in comparable
office projects in the area in downtown Boca Raton, Florida.
16.5. FORM OF INSURANCE/COMPANIES: All such insurance shall be in a form
reasonably satisfactory to Landlord and carried with companies
reasonably acceptable to Landlord that are licensed or authorized to
do business in the State of Florida, are in good standing with the
Department of Insurance in the State of Florida and have a rating
issued by an organization regularly engaged in rating insurance
companies (including specifically A.M. Best & Company) of not less
than two ratings below the top rating. Tenant shall provide Landlord
with a Certificate of Insurance showing Landlord and Landlord's
managing agent as an additional insured. The Certificate shall provide
for a 10 DAY written notice to Landlord in the event of cancellation
or material change of coverage. Not later than 30 DAYS prior to the
expiration of any coverage, renewals of or replacements for such
contracts of insurance shall be delivered to Landlord. In the event
Tenant shall fail to procure any contract of insurance required under
the terms hereof or any renewal of or replacement for any contract of
insurance that is expiring or has been canceled, Landlord may, but
shall not be obligated to, procure such insurance on behalf of Tenant
and the cost thereof shall be payable to Landlord as additional rent
within 10 DAYS following written demand therefor.
16.6. SUBROGATION: Landlord and Tenant shall each obtain from their
respective insurers under all policies of fire, theft, public
liability, workers' compensation and other insurance maintained by
either of them at any time during the term hereof insuring or covering
the Premises, a waiver of all rights of subrogation which the insurer
of one party might otherwise have, if at all, against the other party.
Each party hereby waives any claim against the other party which is
insurable under special form "all risk" property damage insurance
(including coverage for flood, earthquake and Boiler and Machinery,
Business Interruption and Extra Expense), irrespective of whether such
party actually maintains such insurance. Each party hereby waives any
claim against the other party to which such party's insurance company
would otherwise be subrogated.
17. UTILITIES AND SERVICES: Landlord shall use all reasonable efforts to
furnish (as part of Operating Expenses) heating, ventilation, air
conditioning, janitorial service, electricity for normal lighting and
18
19
office machines, cold water for reasonable and normal drinking and
lavatory use, elevator service providing access to the Premises,
replacement light bulbs and/or fluorescent tubes and ballasts for
standard overhead fixtures. The level of cooling and heating and the
capacity of electricity serving the Premises shall be no less (subject
to matters outside Landlord's reasonable control) than the minimum
amounts of such services described in the Construction Rider as
Landlord's Building Standard improvements. All of said services other
than janitorial and HVAC, shall be (subject to matters outside
Landlord's reasonable control) provided continuously 24 hours per day,
365 days per year. Janitorial service shall be provided Monday through
Friday, excluding municipally recognized holidays. HVAC shall be
provided Monday through Friday from 7:00 a.m. to 7:00 p.m. and
Saturday from 8:00 a.m. to 1:00 p.m. ("Business Hours"). HVAC required
by Tenant at other times shall be made available subject to the After
Hours Charge for each hour of use beyond non-Business Hours. The After
Hours Charge shall be as follows: $25 per hour during the first five
years of the Lease Term; the lesser of $30 per hour or the Building
promulgated per hour rate for overtime HVAC then in effect during the
next five years of the Lease Term; and during any renewal Lease Term,
a per hour charge not in excess of market charges for comparable
buildings in Boca Raton, Florida. Landlord shall not be liable for
failure to furnish any of the utilities described in this PARAGRAPH 17
if and only if such failure is not caused by Landlord and is beyond
the ability of Landlord to prevent, and in such case, Tenant shall
have no right to abatement of rental hereunder or to termination of
this Lease with respect to any such interruption nor shall such
failure constitute an eviction, nor shall Landlord be liable under any
circumstances for loss of or injury to property, however occurring,
through or in connection with or incidental to the furnishing of any
of the services enumerated above. However, in the event of a failure
of services that renders the Premises untenantable and is either (i)
caused by Landlord's gross negligence or willful misconduct, or (ii)
is within Landlords reasonable ability to prevent, all rent and other
charges hereunder starting upon expiration of the 3rd business day
following Tenant's notice to Landlord regarding such failure shall
▇▇▇▇▇ on a per diem basis until the Premises are again tenantable. For
purposes of the preceding sentence, the Premises shall be deemed
untenantable in the event of a failure of HVAC or electrical services
if Tenant, in its reasonable judgment, is unable to conduct its
business on a normal basis and closes the Premises to all but
essential personnel needed to prevent damage to Tenants business
operations or equipment. Utilities shall be furnished to Tenant and to
the Project only by service providers who have been approved by
Landlord. Landlord agrees to use reasonable efforts to perform
non-critical (i.e. normal and routine maintenance) maintenance that
would materially and adversely interfere with Tenant's business during
non-Business Hours. The foregoing shall not apply to repairs or
emergencies (defined as a situation involving imminent danger to
person or property) or non-critical maintenance that would not
materially or adversely interfere with Tenant's business.
18. CONDEMNATION: If 25% of the Project shall be taken or condemned for
public use, Landlord may elect to terminate this Lease effective on
the date of taking (provided that Landlord is simultaneously
terminating all other leases in the Building), otherwise this Lease
will remain in full force and effect. If there is a taking of all of
the Premises or a part thereof or Tenant's parking spaces in the
Garage so that the remaining part of the Premises is not suited for
Tenant's continued use, either party may elect to terminate this Lease
effective on the date of taking. If there is a taking of a portion of
the Premises and a part remains which is suitable for Tenant's use in
Tenant's reasonable business judgment, this Lease shall, as to the
part taken, terminate as of the date the condemnor acquires possession
and Tenant terminates its use of the Premises to all but essential
personnel needed to prevent damage to Tenants business operations or
equipment., and thereafter Tenant shall be required to pay such
proportion of the rent for the remaining term as the value of the
Premises remaining bears to the total value of the Premises at the
date of condemnation. The election to terminate this Lease as provided
herein must be exercised, if at all, within 60 DAYS after the nature
and extent of the taking is determined; otherwise, this Lease will
remain in full force and effect. All sums which may be payable on
account of any condemnation claim prosecuted by Landlord shall belong
solely to the Landlord, and Tenant shall not be entitled to any part
thereof, provided however, that Tenant shall be entitled to prosecute
a separate action for its trade fixtures, tenant improvement expenses,
business damages and moving expenses.
19
20
19. FIXTURES: Any and all improvements made to the Premises during the
term hereof shall belong to the Landlord without compensation,
allowance or credit to Tenant, except movable trade fixtures
(including exterior signage) of the Tenant which can be removed
without defacing the Premises or the Project. Notwithstanding anything
herein to the contrary, Tenant shall not be required to remove or
demolish Landlord's Building Standard Improvements or Initial Tenant
Improvements.
20. DESTRUCTION OF PREMISES:
20.1. PARTIAL DESTRUCTION: In the event of a partial destruction of the
Premises during the term hereof, from any cause required to be covered
by Landlord's insurance, Landlord must repair the same to the extent
such repairs can be made with the insurance proceeds made available to
Landlord (and not retained by any lender) and within sixty (60) days
under then existing governmental laws and regulations. Such partial
destruction shall not terminate this Lease and Tenant shall be
entitled to a proportionate reduction of rent while such repairs are
being made, based upon the extent to which the making of such repairs
shall interfere with the business of Tenant on the Premises. If such
repairs cannot be made within said sixty (60) day period, Landlord, at
its option, may make the repairs within a reasonable time. If Landlord
elects to make said repairs, this Lease will continue in effect and
the rent will be proportionately abated as stated above. If the
repairs cannot be made within 60 DAYS with the available insurance
proceeds and Landlord elects not to make said repairs, this Lease may
be terminated at the option of either party. Notwithstanding the
foregoing, if the Premises are not rendered tenantable within 270 days
from the date of the casualty, or if the nature of the damage is such
that the Premises can not be rendered tenantable within 270 days from
the date of days from the date of the casualty, Tenant shall be
entitled to cancel this Lease.
20.2. MATERIAL/TOTAL DESTRUCTION: If the Building in which the Premises are
situated or the Project sustains damage of more than 1/3 of the
replacement cost thereof, Landlord may elect to terminate this Lease
whether the Premises are injured or not, provided (i) that Landlord is
simultaneously terminating all other leases in the Building or (ii)
that Landlord is simultaneously terminating all other leases within
the portion of the Building damaged and Landlord does not intend to
rebuild the identical Building. A total destruction of the Building in
which the Premises are situated or the Project shall terminate this
Lease.
21. HAZARDOUS SUBSTANCES:
21.1. DEFINITIONS: For the purposes of this Agreement, the following terms
have the following meanings:
(a) "ENVIRONMENTAL LAW" means any law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environment
including, without limitation CERCLA (Comprehensive Environmental
Response, Compensation and Liability Act of 1980) RCRA (Resources
Conservation and Recovery Act of 1976) and ▇▇▇▇ (Superfund Amendments
and Reauthorization Act of 1986).
(b) "HAZARDOUS SUBSTANCE" means any substance, material or waste which
is or becomes designated, classified or regulated as being "toxic" or
"hazardous" or a "pollutant" or which is or becomes similarly
designated, classified or regulated, under any Environmental Law,
including asbestos, petroleum and petroleum products.
21.2. TENANT'S RESPONSIBILITIES: At its own expense, Tenant will procure,
maintain in effect and comply with all conditions of any and all
permits, licenses and other governmental and regulatory
20
21
approvals required for Tenant's use of the Premises. Tenant will not
cause or permit any Hazardous Substance to be brought upon, kept or
used in or about the Project by Tenant, its agents, employees,
contractors or invitees without the prior written consent of Landlord
(other than small quantities normally associated with office use).
Tenant will, in all respects, handle, treat, deal with and manage any
and all Hazardous Substances in, on, under or about the Premises in
total conformity with all applicable Environmental Laws and prudent
industry practices regarding management of such Hazardous Substances.
Tenant will not take any remedial action in response to the presence
of any Hazardous Substances in or about the Premises or the Project,
nor enter into any settlement agreement, consent decree or other
compromise in respect to any claims relating to any Hazardous
Substances in any way connected with the Premises without first
notifying Landlord of Tenant's intention to do so and affording
Landlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interests with respect
thereto. Notwithstanding anything to the contrary in this Lease,
Landlord shall be solely responsible for, and Tenant shall have no
liability with respect to, any Hazardous Substances on, under or
within the Project not introduced by Tenant or its agents, employees
or contractors. Landlord shall indemnify and hold harmless Tenant from
and against any liability in connection with Hazardous Substances
described in the preceding sentence. Tenant shall be entitled to
maintain small quantities of Hazardous Substances as are permitted by
law and normal for Tenant's Permitted Use (e.g., substances contained
in batteries, toner for copy machines, etc.) so long as Tenant's use
of same are in strict compliance with applicable Laws. Landlord
represents that, to the best of its knowledge, there will be no
Hazardous Substances presently on, under or within Project as of the
Commencement Date of this Lease.
21.3. INDEMNIFICATION: If the Premises or the Project become contaminated in
any manner for which Tenant is legally liable or otherwise become
affected by any release or discharge of a Hazardous Substance caused
by Tenant, its employees, contractors or agents, Tenant shall
immediately notify Landlord of the release or discharge of the
Hazardous Substance, and Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord) and hold harmless Landlord from and
against any and all claims, damages, fines, judgments, penalties,
costs, liabilities or losses (including, without limitation, a
decrease in value of the Project or the Premises, damages caused by
loss or restriction of rentable or usable space, or any damages caused
by adverse impact on marketing of the space, and any and all sums paid
for settlement of claims, attorneys' fees, consultant fees and expert
fees) arising during or after the term of this Lease and arising as a
result of such contamination, release or discharge. This
indemnification includes, without limitation, any and all costs
incurred because of any investigation of the site or any cleanup,
removal or restoration mandated by federal, state or local agency or
political subdivision.
22. EVENTS OF DEFAULT: If one or more of the following events occurs, such
occurrence constitutes an Event of Default:
22.1. ABANDONMENT/VACATION: Tenant abandons or vacates the Premises or
removes any or all of its furniture, fixtures and personal property,
except in the normal course of business; or
22.2. RENT: Tenant fails to pay any monthly Base Rent or Operating Expenses
Rent, if applicable, as and when the same becomes due and payable, and
such failure continues for more than ten (10) days
21
22
after Landlord's notice of such failure to Tenant, provided that
Landlord shall not be obligated to provide more than one (1) such
notice in any calendar year and failure by Tenant to pay Base Rent or
Operating Expenses Rent when due in a calendar year in which such
notice has previously been given shall immediately constitute an event
of default; or
22.3. OTHER SUMS: Tenant fails to pay any other sum or charge payable by
Tenant hereunder as and when the same becomes due and payable, and
such failure continues for more than ten (10) days after Landlord
gives written notice of such failure to Tenant; or
22.4. OTHER PROVISIONS: Tenant fails to perform or observe any other
agreement, covenant, condition or provision of this Lease to be
performed or observed by Tenant as and when performance or observance
is due, and such failure continues for more than twenty (20) days
after Landlord gives written notice thereof to Tenant, or if the
default cannot reasonably be cured within said twenty (20) day period
and Tenant fails promptly to commence with due diligence and dispatch
the curing of such default or, having so commenced, thereafter fails
to prosecute or complete with due diligence and dispatch the curing of
such default or fails to complete the cure within a reasonable period
of time (however, if Tenant fails to cure such default within 45 days
after the expiration of such 20 day period, Landlord shall then be
entitled to effectuate a cure in which case Tenant shall be
responsible for Landlord's out-of-pocket costs with respect to same);
or
22.5. INSOLVENCY: Tenant (a) files or consents by answer or otherwise to the
filing against it of a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or liquidation or to
take advantage of any bankruptcy or insolvency law of any
jurisdiction; (b) makes an assignment for the benefit of its
creditors; (c) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers of itself or of any
substantial part of its property; or (d) takes action for the purpose
of any of the foregoing; or
22.6. RECEIVER: A court or governmental authority of competent jurisdiction,
without consent by Tenant, enters an order appointing a custodian,
receiver, trustee or other officer with similar powers with respect to
it or with respect to any substantial power of its property, or
constituting an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or insolvency law
of any jurisdiction, or ordering the dissolution, winding up or
liquidation of Tenant, or if any such petition is filed against Tenant
and such petition is not dismissed within 60 days; or
22.7. ATTACHMENTS: This Lease or any estate of Tenant hereunder is levied
upon under any attachment or execution and such attachment or
execution is not vacated within sixty (60) days.
22.8. ASSIGNMENT/SUBLEASE: Tenant assigns this Lease or subleases all or any
portion of the Premises without Landlord's prior written consent.
23. REMEDIES OF LANDLORD UPON TENANT'S EVENT OF DEFAULT:
23.1. TERMINATION: In the event of an Event of Default by Tenant, Landlord
may, at his option, terminate the Lease and repossess the Premises
pursuant to the laws of the State of Florida and recover from Tenant
as damages:
(a) the unpaid rent and other amounts due at the time of termination
plus interest thereon at the Default Rate from the due date until
paid;
(b) the present value of the balance of the rent for the remainder of
the term after termination less the present value of the fair market
value rental of the Premises for said period (both determined by
applying a discount rate of 1 1/2% below the Wall Street Journal Prime
Rate); and
(c) any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of things
would be likely to result therefrom, including, without limitation,
the cost of recovering the Premises.
23.2. LANDLORD'S OPTIONS: Landlord may, in the alternative, (i) continue
this Lease in effect, as long as Landlord does not terminate Tenant's
right to possession, and Landlord may enforce all its rights
22
23
and remedies under the Lease, including the right to recover the rent
as it becomes due under the Lease; or (ii) terminate Tenant's right of
possession (but not this Lease) and repossess the Premises pursuant to
the laws of the State of Florida, without demand or notice of any kind
to Tenant except that which is required by Florida law and its
requirements of legal process, in which event Landlord shall use
commercially reasonable efforts to relet the Premises for the account
of Tenant for such rent and upon such terms as shall be reasonable.
For purpose of such reletting Landlord is authorized by Tenant to
decorate or to make any repairs, changes, alterations or additions in
or to the Premises that may be necessary or convenient, at Tenant's
expense, provided that the same are justified by the economics of the
replacement lease in Landlord's reasonable determination. Tenant shall
also be responsible for rent for the period that the Premises are
vacant and all costs of re-letting, including without limitation,
brokerage commissions and attorneys' fees. Tenant shall also be liable
for any deficiency of such rental below the total rental and all other
payments herein provided for the unexpired balance of the term of this
Lease; or (iii) exercise any and all other rights and remedies
available to Landlord at law or in equity.
24. SECURITY DEPOSIT: PURPOSELY OMITTED
25. LIEN FOR RENT: Landlord expressly waives all rights of levy, distraint
or execution with respect to Tenant's property, including without
limitation any statutory or common law security interest or landlord's
lien for rent.
26. LIMITATION ON LANDLORD'S PERSONAL LIABILITY: Tenant specifically
agrees to look solely to Landlord's interest in the Project and its
rents (subject to prior assignment and subordination in favor of third
parties) for the recovery of any judgment from Landlord, it being
agreed that Landlord (and any officers, shareholders, partners,
directors or employees of Landlord or of any partners in the entity
comprising Landlord) shall never be personally liable for any such
judgment.
27. ATTORNEY'S FEES: If there is any legal action or proceeding between
Landlord and Tenant regarding this Lease or to protect or establish
any right or remedy of either Landlord or Tenant hereunder, the
unsuccessful party to such action or proceeding will pay to the
prevailing party all costs and expenses, including reasonable
attorneys' fees incurred by such prevailing party in such action or
proceeding and in any appearance in connection therewith, and if such
prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorney's fees will be determined by
the court handling the proceeding and will be included in and as a
part of such judgment. Wherever used in this Lease, "attorney's fees"
and "costs" shall include those incurred at the trial level and at all
levels of appeal as well as those incurred in any bankruptcy
proceedings.
28. WAIVER: No failure of either party to enforce any term hereof shall be
deemed to be a waiver.
29. SEVERABILITY: If any clause or provisions of this Lease is illegal,
invalid or unenforceable under present or future laws effective during
the term hereof, then it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is
also the intention of both parties that in lieu of each clause or
provision that is illegal, invalid or unenforceable, there shall be
added as a part of this Lease, a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as
may be possible and be legal, valid and enforceable. Notwithstanding
the foregoing, this paragraph shall be inapplicable to the extent any
Laws would void any obligation of Tenant to pay rent or other charges
due from Tenant to Landlord hereunder or Landlord to provide
utilities, services or access to the Premises and parking.
30. NOTICES: All notices or other communications required or permitted
hereunder must be in writing, and be (i) personally delivered
(including by means of professional messenger service) with signed
receipt,
23
24
(ii) sent by overnight, receipted courier, with request for next
Business Day delivery, or (iii) sent by registered or certified mail,
postage prepaid, return receipt requested, to the addresses set forth
in PARAGRAPH 1. All notices sent by mail will be deemed received on
the date of acceptance or rejection of service.
31. HOLDING OVER: Any holding over after the expiration or termination of
this Lease shall only be for a period of sixty (60) days and construed
as a month-to-month tenancy on the same terms of this Lease except
that per diem Base Rent shall be 125% of the per diem Base Rent for
the month of the Lease preceding the month in which the expiration or
termination occurred, and otherwise in accordance with the terms
hereof, as applicable. In the event Tenant shall be or become a
holdover tenant, Tenant shall also indemnify Landlord against all
claims for damages against Landlord as a result of Tenant's possession
of the Premises after such 60 day period, including, without
limitation, claims for damages by any tenant to whom Landlord may have
leased the Premises, or any portion thereof, for a term commencing
after the expiration or termination of this Lease.
32. TIME: Time is of the essence of this Lease.
33. HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to
the benefit of the assigns and successors in interest of Landlord and
is binding upon and inures to the benefit of Tenant and Tenant's heirs
and successors and, to the extent assignment may be approved by
Landlord or otherwise permitted hereunder, Tenant's assigns.
34. SUBORDINATION: This Lease is and shall always be subordinate to the
lien of any mortgages which are now or shall at any future time be
placed upon the Project, the Premises or Landlord's rights hereunder,
and to any renewals, extensions, modifications or consolidations of
any such mortgage, if and only if, in each instance Tenant receives a
non-disturbance agreement from the holder of each and every such
mortgage. Landlord represents that as of the date of this Lease, the
only mortgage encumbering the Project and the Building is in favor of
Bank Atlantic (the "Existing Lender"), and Landlord shall use
reasonable, diligent efforts deliver to Tenant no later than the
Delivery Date the non-disturbance agreement having been signed by the
Existing Lender in the form attached hereto as Schedule 4. If Tenant
does not receive the non-disturbance agreement from the Existing
Lender within 10 days after the date this Lease is signed by the
parties, Tenant shall be entitled to cancel this Lease by notice of
cancellation given to Landlord prior to the expiration of such 10 day
period. Tenant's obligation to subordinate this Lease to any future
lender shall be subject to receipt of a non-disturbance agreement in
the form attached hereto as Schedule 4 (but for changing the name of
the lender and identification of the mortgage and related loan
documents or other changes approved by Tenant, which approval shall
not be unreasonably withheld, conditioned or delayed).
35. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS:
35.1. CONTENT: Tenant shall at any time upon not less than 15 DAYS' prior
written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing:
(a) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and
effect), the amount of any security deposit, and the date to which the
rent and other charges are paid in advance, if any; and
(d) acknowledging that there are not, to Tenant's knowledge without
investigation, any uncured defaults on the part of Landlord hereunder,
or specifying such defaults if any are claimed. Any such statement may
be conclusively relied upon by a prospective purchaser or encumbrancer
to the Premises.
24
25
35.2. FAILURE TO DELIVER: If Tenant fails to deliver such statement within
such time, Landlord shall be entitled to send Tenant a reminder
notice, and if Tenant shall fail to deliver such statement within 5
days after receipt of the reminder notice, the following shall be
conclusive upon Tenant:
(A) that this Lease is unmodified and in full force and effect,
without modification except as may be represented by
Landlord;
(B) that there are no uncured defaults in Landlord's
performance; and
(C) that not more than one month's rent has been paid in advance
or such failure may be considered by Lessor as a default by
Tenant under this Lease.
36. AUTHORIZATION: If Tenant executes this Lease as a corporation or
partnership, then Tenant and the person(s) executing this Lease on
behalf of Tenant, represent and warrant that such entity is duly
qualified to do business in the State in which the Project is located
and that the individuals executing this Lease on Tenant's behalf are
duly authorized to execute and deliver this Lease on Tenant's behalf.
37. JOINT AND SEVERAL LIABILITY: In the event that more than one person or
entity executes the Lease as Tenant, all such persons and entities
shall be jointly and severally liable for all of Tenant's obligations
hereunder. In the event that Tenant is a partnership, all general
partners shall be jointly and severally liable for all of Tenant's
obligations hereunder.
38. FORCE MAJEURE: Each party shall be excused for the period of any delay
in the performance of any obligations hereunder when prevented from
doing so by cause or causes beyond that party's absolute control which
shall include, without limitation, all labor disputes, civil
commotion, civil disorder, riot, civil disturbance, war, war-like
operations, invasion, rebellion, hostilities, military or usurped
power, sabotage, governmental moratoriums, fire or other casualty or
Acts of God.
39. RECORDING: Tenant shall not record this Lease, or any memorandum or
short form thereof, without the written consent and joinder of
Landlord, which may be unreasonably withheld.
40. RIDER: A Rider, signed by the parties /X / is attached / / is not
attached hereto.
41. ENTIRE AGREEMENT: The foregoing constitutes the entire agreement
between the parties and may be modified only by a writing signed by
both parties.
42. GOVERNING LAW: This Lease shall be construed in accordance with the
internal laws of the State of Florida (without regard to conflicts of
law or choice of law rules). Landlord and Tenant hereby submit to the
jurisdiction of the Civil Courts of the State of Florida in respect of
any suit or other proceeding brought in connection with or arising out
of this Lease and venue shall be in Palm Beach County, Florida.
43. RADON GAS: The following statement is included in order to comply with
Florida statutory law requirements: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from
your county public health unit.
44. MOVING ALLOWANCE: Landlord shall provide Tenant upon lease
commencement with a moving allowance of $1.50 per rentable square foot
to help defray Tenant's cost of moving (including without limitation
costs of cabling and relocation of systems) upon receipt of invoices
for such expenditures. Tenant will not be charged for any elevator
service, supervision, guard service (unless after normal building
operating hours), and cleaning for its initial move in.
45. OPTION TO RENEW: Tenant has two (2) options to renew the lease for a
period of five (5) years each
25
26
provided that in exercising each Tenant (i) is not in default
hereunder beyond any applicable cure period and (ii) gives Landlord
written notice via registered mail return receipt requested and
received by Landlord not later than twelve (12) months prior to
initial lease expiration or first extended option period as
applicable. All terms and conditions as contained in the Lease shall
remain the same except that the renewal rate shall be the "prevailing
market rate" for similar space in comparable buildings for similar
inducements, and lease term in downtown Boca Raton area. If Tenant
should fail to exercise the first option to renew within the time
period aforementioned upon the terms and conditions herein stated,
both the first and second option to renew shall automatically lapse
and expire and Tenant shall have no further right, title or interest
in and to the Premises upon expiration of the initial Lease term. The
term "prevailing market rate" per rentable square foot shall mean the
annual rate of rent determined by Landlord and accepted by Tenant, as
the prevailing market base rental rate in the downtown area of Boca
Raton, Florida for comparable office space which has been built out
for occupancy (taking into consideration the duration of the terms for
which such space is being leased, location and/or floor level within
the applicable building, when the applicable rate first becomes
effective, quality and location of the applicable building, rental
concessions, build-out allowances and other relevant factors) for a
lease term commencing on the Option Period commencement date. Executed
leases and bona fide written offers to lease comparable space in the
Building received by Landlord from third parties (at arm's length) may
be used by Landlord as an indication of the prevailing market rate. In
the event of Tenant's rejection of Landlord's quoted prevailing market
rate with ten (10) days of receipt of same from Landlord, Landlord and
Tenant shall thereafter each select a broker with substantial
experience in the downtown area of Boca Raton, Florida, office market
for the purpose of making a determination of the prevailing market
rate for each option period commencement date; provided that if either
Landlord or Tenant shall fail to notify the other of the identity of
its selected broker as aforesaid within twenty (20) days of the
others' written demand therefore (which demand shall identify the
notifying party's broker and make specific reference to the
consequences imposed by this provision for non-selection), the party
who shall have failed to identify its broker shall be deemed to have
irrevocably consented to the prevailing market rate determined in good
faith by the broker selected by the other party. Assuming that both
brokers are timely selected, however, the two selected brokers shall
then each independently make a determination of prevailing market rate
for each subsequent option period commence date and shall together
select a third broker, experienced as aforesaid. The jointly selected
broker shall then select one of the two determinations as aforesaid
for each remaining option period commencement date which is closest to
the prevailing market rate for purposes of this provision. This
determination, so long as it is made in good faith, shall be final and
not subject to appeal. Each party to the Lease shall pay the fees and
cost of its own broker and one-half of the fees and costs payable to
the jointly-selected broker determined as aforesaid (the foregoing
collectively referred to as the "Three-Broker Method").
46. RIGHT OF FIRST REFUSAL: Landlord agrees to provide Tenant with a
continuous right of first refusal which is subordinate to any existing
tenant then in place and under lease (including any renewal right
stated in existing tenant's lease, this subordination meaning only
that the existing tenant shall have superior rights with respect to
its own space) on space located on the 2nd and 3rd floors of Building
Two at First Union Plaza. In the event that the Landlord receives an
acceptable offer from a third party for space, then Landlord shall
provide Tenant with the acceptable offer and Tenant shall notify the
Landlord within five (5) business days of receiving same of its intent
to exercise its right. Should the Tenant exercise its right, and if
such offer is a bonafide arm's length offer, the rental, terms and
conditions shall be per Tenant's existing lease, except for 1) the
area which shall be equivalent to the prospect's area; and 2) lease
term shall be coterminous with this Lease, however if initial lease
term is less than five (5) years the term shall be extended out to a
minimum five (5) year lease, or to a maximum ten (10) year lease.
Lease term is at Tenant's sole election. Should Tenant fail to
exercise the right of first refusal within the time period
aforementioned upon the terms and conditions herein stated, such right
of first refusal for that particular third party offer to lease space
shall lapse.
47. SATELLITE DISH: If required by Tenant, Landlord shall grant Tenant a
license to install a satellite dish
26
27
or other communications equipment on the roof of the building at no
rental cost to Tenant, together with the right to install such cabling
and other installations reasonably acceptable to Landlord, subject
however to all terms and conditions of the Site License Agreement
Rider attached hereto and made a part hereof as SCHEDULE 2. All Dish
size and design must be architectural compatible to the Project,
comply with all governmental structural requirements and Laws and be
reasonably approved by Landlord.
48. GENERATOR: Tenant shall have the right to install a generator for
Tenant's sole use in a mutually acceptable location, at Tenant's sole
cost and expense. Tenant hereby indemnifies, defends (by counsel
reasonably acceptable to Landlord), protects and holds Landlord
harmless from and against any and all claims, demands, losses,
damages, costs and expenses (including attorney's fees) or death of or
injury to any person or damage to any property whatsoever arising in
favor of third parties or Landlord and out of or relating to Tenant's
installation, maintenance or use of its generator, regardless of
whether caused by Tenant or its agents, employees or invitees.
49. OPTION TO EXPAND: Tenant shall have an option to expand onto the third
floor for rentable square footage totaling approximately 8,000
provided that Tenant gives Landlord written notice not later than ten
(10) days following March 25, 2006. The rental rate, tenant
improvements, and additional incentives shall be the prevailing market
rate (as determined in accordance with Section 46 above) taking into
account the foregoing for similar space for buildings in the general
downtown Boca Raton area but in no event will rental rate be lower
than current rate being paid by Tenant at time of option. In the event
of a disagreement between the parties as to prevailing market rate,
such rate will be resolved by arbitration using the "Three Broker
Method" as utilized in connection with Tenant's renewal option. Rent
on the expansion space will commence upon the earlier of (i) sixty
days following Landlord's delivery of the possession of the expansion
space or (ii) Tenant's conducting its business within such expansion
space. Landlord shall deliver possession of the expansion space to
Tenant upon expiration of the terms of the two leases currently
existing for such space.
50. OPPORTUNITY TO LEASE AVAILABLE SPACE: During the term of lease, Tenant
shall have the right to lease available space in the building, on the
2nd and 3rd floors, by providing Landlord written notice of its
intent. Upon Landlord receiving notice from Tenant that it requires
additional space, landlord shall notify Tenant in writing that space
is available (or not) and the terms upon which Landlord would lease
such space. Such terms shall in any event not exceed the prevailing
market rate (as determined in accordance with Section 46 above) taking
into account the foregoing for similar space for buildings in the
general downtown Boca Raton area but in no event will rental rate be
lower than current rate being paid by Tenant at time of the election
of such right. In the event that Landlord and Tenant cannot agree on
terms however Tenant still elects to lease such space, then the
parties shall then proceed to arbitration based on the Three Broker
Method.
51. WAIVER OF THE RIGHT TO TRIAL BY JURY: LANDLORD AND TENANT HEREBY
KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING THAT LANDLORD OR TENANT MAY HEREINAFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS LEASE OR THE PREMISES, OR THE PROJECT.
52. CONSENTS AND APPROVALS: Except as otherwise set forth in this Lease,
in each instance where a party's approval or consent is required or
its opinion controls any aspect of this Lease affecting the other
party, (i) such approval shall not be unreasonably withheld or delayed
unless this Lease expressly allows such approval or consent to be
withheld arbitrarily or in the party's sole determination, and (ii)
such opinion shall be reasonably rendered.
27
28
53. CONSEQUENTIAL DAMAGES: Notwithstanding anything to the contrary in
this Lease, neither party shall be liable to the other party for
consequential damages or punative damages; provided, however, the
limitation for consequential damages shall not apply to consequential
damages that Tenant shall be entitled to seek from Landlord on account
of Landlord unreasonably withholding consent to Tenant's desired
assignment of this Lease or sublease of the Premises.
54. LANDLORD'S DEFAULT: Without limiting other remedies expressly reserved
to Tenant in this Lease or any remedies of Tenant at law or in equity,
Tenant shall be entitled to terminate this Lease in case of Landlord's
default which remains uncured after the applicable cure period. The
applicable cure period shall be the same period of time following
Tenant's notice to Landlord of the default applicable to defaults of
Tenant. In the event Tenant terminates this Lease on account of
Landlord's default, Landlord shall, in addition to other remedies
expressly reserved to Tenant in this Lease, pay Tenant the unamortized
portion of costs and expenses paid by Tenant in connection with the
Tenant Finish over and above the Tenant Allowance.
28
29
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
BOCA II ASSOCIATES, LTD., a Florida
limited partnership
By: ▇▇▇▇▇ PARTNERS LIMITED,
a Florida limited partnership, its
general partner
By: SPL Florida, Inc., a Florida
corporation, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
TENANT:
Mackenzie Investment Management, Inc.
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Print Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
29
30
SCHEDULE 1(A)
[Diagram of fourth floor]
30
31
SCHEDULE 1(B)
[Diagram of fifth floor]
31
32
SCHEDULE 1(C)
[Diagram of sixth floor]
32
33
SCHEDULE 2
SITE LICENSE RIDER
(Rooftop)
1. GRANT. Subject to the following terms and conditions, Landlord
hereby grants Tenant the nonexclusive license to install, maintain, operate and
remove radio communications equipment and related appurtenances on certain
designated space on roof of the Building, and licenses to Tenant the use of
certain designated portion of the Building appropriate electric and telephone
connections within or without the Building (the space on and within the Building
for Tenant attachment and additional space for Tenant's occupancy and
connections hereafter collectively the "Site"). This license is irrevocable
during the term of the Lease provided that Tenant complies with this Rider and
does not remain in default of the Lease beyond the expiration of any applicable
cure period. The Site is provided to Tenant in "AS IS, WHERE-IS, WITH ALL
FAULTS" condition to be mutually determined by Landlord and Tenant. Landlord
shall continue to have the right to grant others rights to occupy or utilize the
roof of the Building.
2. USE. Tenant shall have the right, at its sole expense, to install,
construct, maintain, modify and repair (and, with Landlord's prior written
approval, which shall not be unreasonably withheld) supplement, replace and
upgrade radio and other communications transmitting and receiving antennas,
supporting mounts and cables, equipment, storage structures and other
improvements relating thereto (collectively the "Equipment") on the Site. Tenant
shall provide Landlord a description of the external antennas and their mounting
brackets included. Tenant shall have the right to use, as reasonably determined
by Landlord and Tenant, the Building conduit and sleeving connecting such
locations and servicing the equipment as currently existing within, provided,
however, that Tenant shall connect its Equipment to those adequate sources of
electricity and telephone which are located closest to Tenant's site (with the
consent and coordination of the appropriate telecommunications provider) unless
Landlord has given, its written approval of Tenant connecting to alternative
sources. The aforementioned uses and equipment are hereafter referred to as
"Permitted Uses". Except as specifically approved by Landlord in writing (which
approval shall not be unreasonably withheld or delayed), antennas and other
Equipment must not extend above Building roof parapet walls or be visible from
the Common Areas and shall be located on the roof of the Building. All exterior
antennas and other external Equipment shall be painted so as to reasonably match
the appearance of the surfaces on which they are mounted. Any changes in number,
type, or location of antennas or other Equipment shall require Landlord's prior
written approval, which shall not be unreasonably withheld. Tenant may install
at its sole cost and expense a chain link non-electrified security fence around
the Site so long as it provides Landlord with a duplicate key to the fence. All
Equipment and all work performed with respect thereto shall be in compliance
with all Laws at Tenant sole cost and expense. Tenant shall be solely
responsible, at its expense, for securing any and all building permits and
approvals, zoning changes or approvals, variances, use permits and other
governmental permits from applicable governmental authorities, including any
Federal Aviation Administration approval (collectively, "Permits,") prior to any
construction or other work on the Site. Landlord agrees to reasonably cooperate
with Tenant in obtaining the Permits, provided Landlord is not obligated to
expend any funds, bring any legal actions in furtherance of the same, or have
any liability or cost associated therewith. Tenant agrees to reimburse Landlord,
on demand, its reasonable attorney's fees to review any documentation requested
to be executed or
33
34
consent to by Landlord. Landlord makes absolutely no representations or
warranties regarding the Permits or whether the Permits are obtainable and shall
have no liability to Tenant for failure to obtain any Permits. Copies of the
Permits shall be provided to Landlord within five (5) days of obtaining same and
in all events prior to installation of the Equipment. Tenant shall promptly pay
all costs and expenses incurred in connection with the installation,
construction, maintenance, repair, operation, upgrade, replacement or removal of
the Equipment and shall not cause or permit any lien to be created against the
Site. Nothing in this Rider will be deemed in any way to give Tenant any right,
power or authority to contract for or permit to be furnished any service or
materials which would give rise to the filing of any construction, mechanics' or
materialmen's lien against Landlord's estate or interest in the Project, it
being agreed that no estate or interest of Landlord in the Project will be
subject to any lien arising in connection with any alteration, additions or
improvements made by or on behalf of Tenant. Tenant agrees to incorporate the
provisions of this paragraph into the contract with any contractor installing
the Equipment or otherwise conducting work on the Site on behalf of Tenant;
provided, however, Tenant's inadvertent failure to make such notification shall
not be deemed a default of this Rider or the Lease. Landlord reserves the right,
in addition to the foregoing, to record in the public records a notice of
non-responsibility as provided for in the Construction Lien law. Tenant shall,
within ten (10) days after being requested to do so by Landlord, execute,
acknowledge and deliver to Landlord a notice of this Rider in recordable form
confirming that the terms of the Rider with the third party expressly provides
that the interest of Landlord in the Project shall not be subject to liens for
improvements made or other work performed by or on behalf of Tenant and such
other information as may be required by Chapter 713, Florida Statutes to prevent
the interest of Landlord in the Project from being subject to liens for
improvements made or other work performed by or on behalf of Tenant. Tenant
shall only use the Equipment for its own personal use, and in no event shall
Tenant be permitted to allow the Equipment to be used by or for the direct or
indirect benefit of anyone other party other than an affiliate and any entities
into which Tenant is merged or consolidated, or an entity to which a substantial
portion of Tenant's assets are transferred, or any permitted assignee or
subtenant under the Lease.
3. MAINTENANCE. Tenant, at its sole cost, shall comply with all
applicable Laws relating to its possession of the Site and use of the Equipment.
Tenant shall be responsible for all maintenance of the Equipment and for the
cost of all repairs or damage to the Building caused by Tenant, or Tenant's
agents, employees, contractors or subcontractors, subject to Section 16.6 of the
Lease. Tenant shall timely and promptly commence (not to exceed five (5)
business days) repair, and diligently pursue completion of such repair, at
Tenant's sole cost any such damage (however, if Tenant fails to cure such repair
within 45 days, Landlord shall then be entitled to effectuate a cure in which
case Tenant shall be responsible for Landlord's out-of-pocket cost with respect
to same). If the Equipment is damaged or in need of maintenance or repair so
that it is creating or could create a hazard, the determination of which will be
made by Landlord in its sole discretion, then Landlord has the right to require
Tenant to promptly perform such maintenance and repairs as Landlord deems
necessary. If Tenant fails to promptly perform such maintenance or repairs,
Landlord may, upon notice to Tenant, enter onto the Site and perform such
maintenance or repairs, in which case Tenant shall reimburse Landlord for all
costs and expenses associated with such maintenance and repairs plus an
administrative fee of ten percent (10%) of the cost of the repairs. If necessary
upon notice from Landlord, Tenant shall remove the Equipment, at its expense, if
required for Landlord to conduct repair or maintenance on the roof or any
portion of the Project; provided, however, Landlord agrees to use reasonable
efforts to perform non-critical (i.e. normal and routine maintenance)
maintenance that would materially and adversely interfere with Tenant's use of
its equipment during non-Business Hours. The
34
35
foregoing shall not apply to repairs or emergencies (defined as a situation
involving imminent danger to person or property) or non-critical maintenance
that would not materially or adversely interfere with Tenant's use of its
equipment.
4. INTERFERENCE.
(a) Tenant agrees to install Equipment only of types and
generating frequencies, which will not cause interference to transmissions, or
signals from Landlord and other users of the Project as may be already in place
or may hereafter be placed on the Project. Tenant shall not change the frequency
range outside of the 1850-1990 MHZ frequency range if it interferes with other
users within the Project. In the event that the Equipment causes such
interference, Tenant will take all steps necessary to correct and eliminate the
interference. If the interference cannot be eliminated within 48 hours after
receipt of written notice from Landlord to Tenant, Tenant shall disconnect
electronic power and shut down the Equipment (except for intermittent operation
for the purpose of testing, after performing maintenance, repair, modification,
replacement, or other action taken for the purpose of correcting such
interference) until such interference is corrected, and if such interference is
not corrected within 30 days after receipt of the written notice, Tenant agrees
to remove the Equipment from the Project and this Rider shall terminate as if by
expiration.
(b) Tenant will not permit the Equipment to create discernible
adverse affects on any other equipment located on or in the Building, or
transmissions or reception of signals of such other equipment. Tenant and
Landlord acknowledge the Equipment emits electromagnetic fields. The guidelines
for human exposure to these electromagnetic fields are recommended in "American
National Standard Safety Levels with respect to Human Exposure to Radio
Frequency Electromagnetic Fields, 300 KHZ to ▇▇▇ ▇▇▇," (▇▇▇▇ ▇▇▇.▇-▇▇▇▇) issued
by the American National Standards Institute and adopted by the Federal
Communications Commission, as same may be undated or amended from time to time
(the "ANSI Standards"). Tenant agrees to fully comply with the latest adopted
edition of the ANSI Standards and any other standards or regulations which may
be adopted from time to time by governmental agencies having jurisdiction over
the use of the Equipment.
(c) Landlord shall have no liability for any interference to
Tenant's operation of the Equipment caused by a third party. Landlord agrees to
use reasonable efforts enforce upon any third party users of the Building roof
the similar restrictions regarding interference as set forth in this Paragraph
4, provided that Landlord shall not be obligated to expend funds or institute a
lawsuit against such third party user.
(d) In the event of any default hereunder which remains
uncured after expiration of the non-monetary default cure period set forth in
the Lease, Landlord shall also have the right to terminate this Rider
independent of or in connection with the Lease termination.
5. IMPROVEMENTS, UTILITIES AND ACCESS.
(a) The Equipment shall remain the exclusive property of
Tenant, and Tenant shall have the obligation to remove all Equipment following
any termination of this Rider and to repair all damage caused by the Equipment's
installation, operation, repair, replacement or removal.
35
36
(b) At its sole cost and expense, Tenant shall have the right
to install utilities and to improve present utilities on the Project for Tenant
use only, including but not limited to the installation of emergency power
generators, in order to service the Equipment throughout the term of this Rider.
The foregoing right of Tenant is subject to Landlord's reasonable prior approval
of the plans and specifications therefore and the contractor performing such
work. Tenant shall have no right to adversely effect the structural, electrical,
utility, roof or mechanical systems existing in the Project or increase the
burden thereon. All such work will be in compliance with all rules, regulations
and Laws governing same. Landlord shall have the right to require Tenant to use
a contractor selected by Landlord in the event such work may impact the roof,
electrical or utility system or the structural integrity of the Project. Tenant
shall be responsible for all utility connection charges, and all utility use
charges, for electricity or any other utility used by Tenant. Unless otherwise
agreed in writing by Landlord, all utility services to the equipment shall be
separately metered at Tenant's sole cost and expense. All utility installations,
connections and upgrades by Tenant are limited to the Permitted Uses unless
Tenant obtains Landlord's prior written consent.
(c) Tenant agrees to observe such reasonable rules and
regulations as Landlord shall from time to time adopt for users of the roof,
provided, however that, subject to reasonable safety and security precautions,
Landlord shall allow access to the Site and the Equipment at all times, 24 hours
each day, every day, through a reasonable means of ingress and egress. Tenant,
at its sole expense, may use appropriate, non-dangerous means of restricting
unauthorized access to the Site and the Equipment, provided, however, that
Landlord shall have access to the Site for inspections and repairs at all times.
6. HOLD HARMLESS. Tenant agrees to defend, indemnify and hold Landlord
and its Affiliates or subsidiary companies, their offices, agent and employees
harmless from any and all liabilities, costs, damages, expenses, losses, claims,
actions, suits, causes of action, judgments, and charges of every kind and
nature whatsoever arising in favor of third parties, including reasonable
attorney's fees, which may in any manner arise out of or relate to Tenant's use
or occupancy of the Project or its installation, operation, repair, replacement,
maintenance or removal of the Equipment or the performance or non-performance of
this Rider by Tenant, Tenant's contractors, subcontractors, employees, agents or
assigns, including without limitation, those that may arise out of the use or
furnishing of materials, and as to such claims, actions, suits, causes of
action, judgments, and charge of every kind and nature whatsoever arising from
or resulting from any misconduct by Tenant, its subcontractors, agents,
servants, employees, or any or all of them. "Affiliates" shall mean any person
or entity that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with, another person or
entity. "Control" for this definition shall be defined as holding at least a
majority of voting power or operating control. The indemnification obligations
set forth herein shall survive the expiration or termination of this Rider.
7. COMPLIANCE WITH LAWS. All installations and operations in
connection with this Rider by Tenant shall be conducted in accordance with all
applicable rules and regulations of the Federal Communications, Federal Aviation
Agency, and all other applicable federal, state Laws, codes and regulation.
Tenant is solely responsible for the licensing, operation and maintenance of
Tenant's Equipment, including, without limitation, compliance with any terms of
its Federal Communications Commission license with respect to building light
observation any
36
37
notification to the Federal Aviation Administration in that regard. Tenant's
Equipment, transmission lines, and any related devises, and the installation,
maintenance and operation thereof, shall not damage the Building, the Project,
or any Project or properties adjoining, or interfere with the use of the
Building and the remainder of the Project, by Landlord, others, and Tenant shall
defend, indemnify and hold harmless Landlord from any and all liabilities,
claims, damages, losses, causes of action, costs and expenses (including
attorney's fees and costs through trial and all appellate levels) arising from
or in connection with any such damage or interference. This obligation of
Tenant's to defend, indemnify and hold harmless Landlord survives the
termination of this Rider.
37
38
SCHEDULE 3
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators and
stairways shall not be obstructed by Tenants or used by them for any
purpose other than for ingress and egress from their respective
premises. The halls, passages, exits, entrances, elevators and
stairways are not for the use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by
all persons whose presence, in the reasonable judgment of Landlord,
shall be prejudicial to the safety, character, reputation and interests
of the Building and its Tenants, provided that nothing herein contained
shall be construed to prevent such access to persons with whom any
Tenant normally deals in the ordinary course of such Tenant's business
unless such persons are engaged in illegal activities. No Tenant, and
no employees or invitees of any Tenant, shall go upon the roof of the
Building, except in accordance with reasonable procedures established
by Landlord.
2. Except as permitted by the Lease, no sign, placard, picture, name,
advertisement or notice, visible from the exterior of the Building
shall be inscribed, painted, affixed, installed or otherwise displayed
by any Tenant either on its premises or any part of the Building
without the prior written consent of Landlord, and Landlord shall have
the right to remove any such sign, placard, picture, name,
advertisement, or notice without notice to and at the expense of
Tenant.
If Landlord shall have given such consent to any Tenant at any time,
whether before or after the execution of the Lease, such consent shall
in no way operate as a waiver or release of any of the provisions
hereof or of such Lease, and shall be deemed to relate only to the
particular sign, placard, picture, name, advertisement or notice so
consented to by Landlord and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Landlord
with respect to any other such sign, placard, picture, name,
advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed and inscribed at the expense of the Tenant by a person
approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of Tenants only
and Landlord reserves the right to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung
or placed in, or used in connection with, any window or door on the
premises without the prior written consent of Landlord. In any event
with the prior written consent of Landlord, all such items shall be
installed inboard of Landlord's standard window covering and shall in
no way be visible from the exterior of the Building. No articles shall
be placed or kept on the windowsills so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which might appear unsightly from outside Tenant's
premises.
5. Landlord reserves the right to exclude from the Building between the
hours of 6:00 P.M. and 8:00 A.M. and at all hours on Saturday, Sundays,
and holidays all persons who are not Tenants or their accompanied
guests in the Building. Each Tenant shall be responsible for all
persons for whom it allows to enter the Building and shall be liable to
Landlord for all acts of such persons.
38
39
Landlord shall in no case be liable for damages for unintentional error
with regard to the admission to or exclusion from the Building of any
person.
Landlord shall provide security service for the building consistent
with first class office buildings in major metropolitan areas in the
Southeast United States.
During the continuance of any invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right to prevent access to the Building
by closing the doors, or otherwise, for the safety of Tenants and
protection of the Building and property in the Building.
6. No Tenant shall employ any person or persons other than the janitor of
Landlord for the purpose of cleaning premises unless otherwise agreed
to by Landlord in writing. Except with the written consent of Landlord
no person or persons other than those approved by Landlord shall be
permitted to enter the Building for the purpose of cleaning same. No
Tenant shall cause any unnecessary labor by reason of such Tenant's
carelessness or indifference in the preservation of good order and
cleanliness of the premises, however, occurring, or for any damage done
to the effects of any Tenant by the janitor or any other employee or
any other person.
7. (Intentionally omitted)
8. Each Tenant shall see that all doors of its premises are closed and
securely locked and must observe strict care and caution that all water
faucets or water apparatus are entirely shut off before the Tenant or
its employees leave such premises, and that all utilities shall
likewise be carefully shut off so as to prevent waste or damage, and
for any default or carelessness the Tenant shall make good all injuries
and sustained by other Tenants or occupants of the Building of
Landlord. On multiple-tenancy floors, all Tenants shall keep the door
or doors to the Building corridors closed at all times except for
ingress and egress.
9. As more specifically provided in the Tenant's Lease of the premises,
Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning, and shall
refrain from attempting to adjust any controls.
10. No Tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its
premises without the prior written consent of Landlord. If Landlord
shall give its consent, Tenant shall in each case furnish Landlord with
a key for any such lock.
11. Each Tenant, upon the termination of the Tenancy, shall deliver to
Landlord all the keys or access devises for the Building, offices,
rooms and toilet rooms which shall have been furnished the Tenant or
which the Tenant shall have had made. In the event of the loss of any
keys or access devices so furnished by Landlord, Tenant shall pay
Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than for which they were
constructed and no foreign substance of any kind whatsoever, including,
but not limited to, coffee grounds shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant, who, or whose
employees or invitees (while such invitees are inside the Premises),
shall have caused it.
13. No Tenant shall use or keep in its premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material
other than limited quantities necessary for the operation or
maintenance of office equipment. No Tenant shall use any method of
heating or air
39
40
conditioning other than that supplied by Landlord.
14. No Tenant shall use, keep or permit to be used or kept in its premises
any foul or noxious gas or substance or permit or suffer such premises
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors
and/or vibrations or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be brought or
kept in or about any premises of the Building.
15. No cooking shall be done or permitted by any Tenant on its premises
(except that use by the Tenant of Underwriters' Laboratory approved
equipment for the preparation of coffee, tea, hot chocolate and similar
beverages for Tenants and their employees shall be permitted, provided
that such equipment and use in accordance with applicable federal,
state and city laws, codes, ordinances, rules and regulations) nor
shall premises be used for lodging. Use of microwave ovens for warming
of prepared foods for use of Tenant, its employees and business
invitees, is permitted, so long as such food is not sold to third
parties for profit.
16. Except with the prior written consent of Landlord, no Tenant shall
sell, permit the sale, at retail, of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise in or on
any premises, nor shall Tenant carry on, or permit or allow any
employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from any premises for the
service or accommodation of occupants of any other portion of the
Building, nor shall the premises of any tenant be used for the storage
of merchandise or for manufacturing of any kind, or the business of a
public ▇▇▇▇▇▇ shop, beauty parlor, nor shall the premises of any Tenant
be used for any improper, or reasonably objectionable purpose, or any
business activity other than that specifically provided for in such
Tenant's lease. This paragraph shall be inapplicable to the sale of
mutual funds, securities, insurance products and other financial goods
and services that are part of Tenants business.
17. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
18. Landlord will direct electricians as to where and how telephone,
telegraph and electrical wires are to be introduced or installed. No
boring or cutting for wires will be allowed without the prior written
consent of Landlord. The location of burglar alarms, telephones, call
boxes or other office equipment affixed to all premises shall be
subject to the written approval of Landlord.
19. Except as provided in Section 47 of the Lease, no Tenant shall install
any radio or television antenna, loudspeaker or any other device on the
exterior walls or the roof of the Building. Tenant shall not interfere
with radio or television broadcasting or reception from or in the
Building or elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or any other floor covering
so that the same shall be affixed to the floor of its premises in any
manner except as approved in writing by Landlord. The expense of
repairing any damage resulting from a violation of this rule or the
removal of any floor covering shall be borne by the Tenant by whom, or
by whose contractors, employees or invitees, the damage shall have been
caused.
21. No furniture, freight, equipment or other property which is excessively
bulky will be received in the Building or carried up or down the
elevators except between such hours and in such elevators as shall be
reasonably designed by Landlord. Landlord shall have the right to
prescribe the weight, size and position of all safes, furniture, files,
bookcases or other heavy equipment brought into the Building. Safes or
other heavy objects shall, if considered necessary by Landlord, stand
on wood strips of such thickness as determined by Landlord to be
necessary to properly distribute
40
41
the weight thereof. Landlord will not be responsible for loss of or
damage to any such safe, equipment or property from any cause, and all
damage done to the Building by moving or maintaining any such safe,
equipment or other property shall be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of
the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the
Building must be acceptable by Landlord.
22. No Tenant shall place a load upon any floor of the premises which
exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. No Tenant shall ▇▇▇▇, or drive nails,
screws or drill into, the partitions, woodwork or plaster or in any way
deface such premises or any part thereof, without prior approval from
Landlord which approval will not be unreasonably withheld.
23. (Intentionally omitted)
24. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. No other vehicles
of any kind shall be brought by any Tenant into or kept in or about the
premises.
25. Each Tenant shall store all its trash and garbage within the interior
of it premises, and Landlord as part of janitorial services provided to
Tenant shall remove Tenant's trash and garbage as provided for in the
Lease. No materials shall be placed in the trash boxes or receptacles
if such material is of such nature that it may not be disposed of in
the ordinary and customary manner of removing and disposing of trash
and garbage in this area without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall
be made only through entryways and elevators provided for such purposes
and at such times as Landlord may designate.
26. Canvassing, soliciting, distributing of handbills or any other written
material and peddling in the outside of the Premises are prohibited and
each Tenant shall cooperate to prevent the same. No Tenant shall make
room-to-room solicitation of business from other tenants in the
Building.
27. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the rules
and regulations of the Building.
28. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
29. Tenant shall comply with all energy conservation, safety, fire
protection and evacuation procedures and regulations established by
Landlord or any governmental agency.
30. Tenant assumes any and all responsibility for protecting its premises
from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the premises closed.
31. Tenant's contractors performing work within the Common Areas must sign
in with the
41
42
management office prior to beginning any work. Employees of Landlord
shall not perform any work or do anything outside of their regular
duties unless given special instructions from Landlord, and no
employees will admit any person (Tenant or otherwise) to any office
without specific instructions from Landlord.
32. (Intentionally omitted)
33. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for
safety and security, for care and cleanliness of the Building and for
the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules
and regulations which are adopted. All such rules and regulations,
however, shall apply to all Tenants uniformly in the Building. No
additional rules or regulations shall be effective against Tenant if,
to any extent, they are in conflict with the Lease or impose undue
burden on Tenant.
34. (Intentionally omitted)
35. (Intentionally omitted)
36. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service to Tenant, to Landlord
for Landlord's reasonable approval before performance of any
contractual service. This provision shall apply to all work performed
in the Building, including installations of telephones, telegraph
equipment, electrical devices and attachments and installations of any
nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other physical portion of the Building. No fee will be
charged by Landlord pursuant to this paragraph.
37. Tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that
such accidents or defects may be attended to properly.
38. The Project is designated as a "Non-Smoking" Building. This means that
smoking is prohibited in all areas of the building. Individual tenants
may not allow smoking areas in their offices. We have placed cigarette
urns on the patio at the lakeside fountain to the north of the main
lobby for the convenience of smokers. Employees may not smoke at the
front/guest entrance to the building.
39. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients,
customers, and (while present in the Premises) guests.
40. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part,
the terms, covenants, agreements and conditions of any Lease of
premises in the Building.
41. Tenant shall not allow occupancy of the Premises to exceed an average
of six (6) persons per one thousand (1000) rentable square feet. This
limitation shall not apply to temporary events including without
limitation board meetings and investor seminars.
42
43
CONSTRUCTION RIDER
ATTACHED TO LEASE BETWEEN BOCA II ASSOCIATES, LTD. AND
AND EXECUTED SIMULTANEOUSLY THEREWITH
1. WORK BY LANDLORD. Landlord shall cause to be constructed and/or installed in
the Premises, "Landlord's Building Standard Improvements" as set forth below.
Landlord's Building Standard improvements shall be limited to the following, all
constructed in a good and workmanlike manner in compliance with all Laws:
Core Conditions Elevator lobbies, drywall core taped and
floated ready to receive finishes; Exterior
perimeter of core, drywall, taped and
floated ready to receive finishes; Elevator
cabs completely finished and ready to use;
Fire stairs finished, painted and ready to
use; Rest rooms fully code and ADA compliant
and ready to use; All core required doors,
frames, and hardware installed and
operational. Construction and finishing of
elevators, restrooms and lobby will be in
accordance with the following materials set
forth on the attached Schedule of Finish
Materials.
Signage & Graphics Code required signage at core and public
areas complete; Elevator signage, inside and
out; Fire stair signage, inside and out of
the stairwell; Rest rooms signage installed.
Shell Conditions Exterior drywall installed, taped and
floated.
Electrical Electrical transformers (75 KVA). 42 circuit
distribution panels in place on both 408/277
volt and 208/120 volt on each floor; 277 V
power for lighting at panels (1 1/2 watt
capacity per square foot of Rentable Area of
the Premises for Tenant's exclusive use);
120 V power at panels connected at load (5
watt capacity per square foot of Rentable
Area of the Premises for Tenant's exclusive
use) at electrical room
Telephone 400 pair riser backbone systems on all seven
floors at telephone room. Telephone closets
on each floor will contain grounded
backboards.
Mechanical Floor air handlers in place and operational;
Main air distribution ducts in place to and
including VAV boxes in accordance with
building standard (i.e.12 on each floor,
with 2 of the 12 located in the Common
Areas).
Life Safety Operational life safety system complying
with all applicable NFPA requirements,
including exit signs, horns, enumerators,
smoke detector for core area with additional
capacity to add certain Tenant requirements.
Emergency fixtures shall be located on a
full floor, non-partitioned basis in
stairwells, building exits, lobbies and
toilet rooms.
43
44
Sprinkler System Plumbing lines and all heads installed and
turned down on grid in accordance with
building standard (i.e.121 heads turned up
on the 4th floor, 122 heads turned up on the
5th floor and 126 heads turned up on the 6th
floor, with 14 of each of the foregoing
located in the Common Areas).
HVAC Specifications
OUTSIDE TEMPERATURE INDOOR TEMPERATURE
------------------- ------------------
SUMMER 75-94 degrees F. dry bulb 74-76 degrees F. at
50% relative
humidity
WINTER 55-74 degrees F. wet bulb 72-76 degrees F.
assuming no
humidification
Floors Floors will be leveled so there is no more
than a 1/4 inch variation for every ten feet
to the extent needed to implement Tenant's
architectural design or installation of
systems.
Security A card reading system will be located at
the ground floor building entry, delivery
and one passenger elevator and delivery
door entrance.
Windows
Floor Load Bearing Capacity 100 lbs per square foot live load.
"Tenant Initial Improvements" shall consist of all improvements, changes,
alterations, equipment, fixtures, and decoration other than Landlord's Building
Standard Improvements required to put the Premises in the condition to permit
Tenant to open and conduct its business therein as required by this Lease, which
shall be the responsibility of Tenant, at Tenant's sole cost and expense,
including without limitation any and all permits and approval for Tenant Initial
Improvements and the certificate of occupancy for the Premises (other than
required to satisfy Tenant's Building Permit Condition). Landlord shall have the
right to supervise the construction, at no charge to Tenant, of the Tenant
Initial Improvements which shall be constructed by Tenant in compliance with all
Laws and lien free. Landlord's supervision means only monitoring of the Tenant
Initial Improvements in order to confirm their compliance with Laws and the
approved plans. Landlord agrees it will not unreasonably interfere with progress
of the Tenant Initial Improvements, and in no event shall Landlord give
directives to Tenant's contractor, subcontractors, laborers or other workers.
Tenant agrees to use Landlord's base building mechanical, electrical and
plumbing engineer as well as Landlord's life safety and electrical
subcontractors in connection with Tenant Initial Improvements, subject to such
engineers and subcontractors prices being "in line" with market fees or costs
and competitively bid. All other contractors or subcontractors used by Tenant
shall be licensed and subject to Landlord's prior written approval.
44
45
2. COMPLETION OF CONSTRUCTION. If Landlord's Building Standard Improvements are
not substantially complete by the time period set forth in the Lease, for any
reason, Landlord will not be liable or responsible to Tenant for any claims,
damages or liabilities in connection therewith or by reason thereof. Within five
(5) days after the Delivery Date, the authorized representative of Landlord and
Tenant shall conduct a walk through inspection of the Premises and prepare a
list of any defects, incomplete unsatisfactory items (the "Punchlist Items")
with respect to Landlord's Building Standard Improvements. Should Tenant not
conduct a walk through inspection within five (5) days after the Delivery Date,
it shall be presumed that Landlord's Building Standard Improvements is complete
and satisfactory in all respects other than with respect to latent defects.
Landlord shall be obligated within a reasonable amount of time no to exceed
sixty (60) unless additional time is reasonably needed to cure the Punchlist
Items. This time provision shall not apply to latent defects (i.e. those which
are not capable of being ascertained during a walk through inspection or are a
violation of Law not actually known to Tenant), and Tenant shall, within twelve
(12) months following the Delivery Date, have the right to report to Landlord
any latent defects which are in need of repair based upon the obligation of
Landlord to do work to the Premises. In connection therewith, the provisions set
forth above shall otherwise apply with respect to Landlord's obligation to cure
said latent defects.
3. TENANT DELAY. Tenant covenants that it shall not cause Tenant Delay. In the
event of Tenant Delay, the substantial completion of Landlord Building Standard
Improvements shall be deemed to be the date such substantial completion would
have occurred but for Tenant Delay. As used herein, "Tenant Delay" shall mean
(i) the number of days of delay in preparing any of such documentation caused by
changes requested by Tenant to any aspect of the Landlord Building Standard
Improvements which were reflected in documentation previously approved by
Tenant; (ii) the positive difference, if any, between the increase and decrease
in the number of days required to complete the Landlord Building Standard
Improvements caused by changes requested by Tenant to the working drawings after
Tenant's approval thereof or (iii) delays caused as a result of Tenant's, its
agents, contractors or subcontractors negligent or wrongful acts or omissions.
4. PLANNING AND CONSTRUCTION. Landlord and Tenant shall cooperate in good faith
in the planning and construction of the Landlord Building Standard Improvements,
and Tenant shall respond promptly to any request from Landlord for Tenant's
approval of any particular aspect thereof. Landlord's failure to object to
Tenant's plans within 15 days after submission of the to Landlord for approval
together with specific reasons for disapproval shall be deemed approval of
Tenant's plans.
5. DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE SET FORTH IN HEREIN, TENANT
ACKNOWLEDGES THAT THE CONSTRUCTION AND INSTALLATION OF THE LANDLORD'S BUILDING
STANDARD IMPROVEMENTS WILL BE PERFORMED BY AN UNAFFILIATED CONTRACTOR OR
CONTRACTORS AND THAT ACCORDINGLY LANDLORD HAS MADE AND WILL MAKE NO WARRANTIES
TO TENANT WITH RESPECT TO THE QUALITY OF CONSTRUCTION THEREOF OR AS TO THE
CONDITION OF THE LANDLORD'S BUILDING STANDARD IMPROVEMENTS, EITHER EXPRESS OR
IMPLIED, AND THAT THE LANDLORD EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE
LANDLORD'S BUILDING STANDARD IMPROVEMENTS ARE OR
45
46
WILL BE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE. Notwithstanding
anything to the contrary in this Lease if, as of the date the Premises are
delivered to Tenant: (i) any portion of the Landlord's Building Standard
Improvements not in full compliance with all Laws; (ii) any latent defects in
the Landlord's Building Standard Improvements, then Landlord shall be obligated
to correct same, after notice and opportunity to cure as provided for in the
Lease. However the foregoing obligation of Landlord shall not change the
definition of "Landlord's Delay". In the event that the defect continues for
more than sixty (60) days after Tenant gives written notice thereof to Landlord,
or if the defect cannot reasonably be cured within said sixty (60) day period
and Landlord fails promptly to commence with due diligence and dispatch the
curing of such defect or, having so commenced, thereafter fails to prosecute or
complete with due diligence and dispatch the curing of such defect or fails to
complete the cure within a reasonable period of time (however, if Landlord fails
to cure such default within thirty (30) days after the expiration of such sixty
(60) day period, Tenant shall then be entitled to effectuate a cure in which
case Landlord shall be responsible for Tenant's out-of-pocket costs with respect
to same). Landlord agrees that it will diligently pursue and seek to enforce any
warranties of the contractor(s) and/or manufacturer of any defective materials
incorporated therein. Landlord shall not be in default for actions, inactions or
failures, including but not limited to insolvency, of any contractor or
manufacturer.
6. COST OF INITIAL TENANT IMPROVEMENTS. Landlord will pay all costs and expenses
of installing and constructing the Building Standard Improvements. Landlord will
further pay all costs and expenses of installing and constructing the Tenant
Initial Improvements, being the remainder of the Initial Tenant Improvements
(including labor, materials architectural and engineering costs) up to the
aggregate amount of $35.00 per rentable square foot of the Premises (the
"Improvement Allowance"). Such payment will be made as and when due under
Tenant's construction contract subject to a 10% retainage which will be funded
by Landlord and subject to lien free completion of the Tenant Initial
Improvements at all times. Tenant shall pay the amount, if any (the "Excess TI
Cost"), by which the cost of the Tenant Initial Improvements exceeds the
Improvement Allowance. The Excess TI Cost shall be payable (i) one-half within
30 days of the date that Landlord approves the Tenant Initial Improvements and
Tenant commences the Tenant Initial Improvements (ii) the remainder within 30
days of the date that Landlord's architect or contractor certifies substantial
completion of the Initial Tenant Improvements. Past due sums shall bear interest
at the Default Rate as set forth in the Lease. Tenant will not be responsible to
pay any so-called "impact fee" or off-site improvement costs related to Tenant
Building Permit Condition; and any such fees or cost shall be paid by Landlord
as and when due. Tenant shall be permitted to spend any unused portion of the
Improvement Allowance exceeding $30.00 per rentable square foot for "soft costs"
associated with Tenant's occupancy of the Premises including, but not limited
to, furniture, file cabinets, telephone equipment and cabling. Notwithstanding
anything to the contrary in this Lease, (i) Tenant shall be required to pay for
utilities used during construction of Tenant Initial Improvements prior to
commencement of this Lease Term and (ii) Landlord shall not charge for its
construction supervision or coordination regarding the Initial Tenant
Improvements.
Landlord Tenant
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------- ------------------------
FTL1 #475790 v11
46
47
CONSTRUCTION RIDER SCHEDULE 1(a)
[Diagram of Landlord's Building standard improvements. Included in diagram are
floor, base, wall, ceiling materials, and door and window types.]
47
48
CONSTRUCTION RIDER SCHEDULE 1(b)
[Diagram of Landlord's Building standard improvements. Included in diagram are
door, frame, finish hardware, and wall schedule for office tower.]
48
49
CONSTRUCTION RIDER SCHEDULE 1(c)
[Diagram of Landlord's Building standard improvements. Included in diagram are
door and frame schedule for parking garage.]
49
50
CONSTRUCTION RIDER SCHEDULE 1(d)
[Diagram of Landlord's Building standard improvements. Included in diagram are
finish notes.]
50
51
EXHIBIT A
PARCEL 1
All of ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ of SPANISH RIVER LAND COMPANY SUBDIVISION, Plat A, in the
Town of Boca Raton, Florida, according to the Plat thereof recorded in the
Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida,
in Plat Book 16, Pages 27 to 30.
LESS THE FOLLOWING DESCRIPTION:
A portion of ▇▇▇ "▇", ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ "A", according to
the plat thereof as recorded in Plat Book 16, at Pages 27 through 30, of the
Public Records of Palm Beach County, Florida, in Section 29, Township 47 South,
Range 43 East, being more particularly described as follows:
COMMENCE at the Northwest corner of the Northwest one-quarter (N.W. 1/4) of said
Section 29; thence along the North line of said Northwest one-quarter (N.W.
1/4), North 88o58'21" East for a distance of 421.90 feet; thence, ▇▇▇▇▇
▇▇▇▇▇'▇▇" ▇▇▇▇ for a distance of 836.28 feet; thence ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ for a
distance of 2319.02 feet; thence South 88o40'48" West for a distance of 40.00
feet to the POINT OF BEGINNING, said point also being the Northeast corner of
said Lot "C"; thence along the East line of said ▇▇▇ "▇", ▇▇▇▇▇ ▇▇▇▇▇'▇▇" East
for a distance of 250.33 feet to the Southeast corner of said Lot "C"; thence
along the South line of said ▇▇▇ "▇", ▇▇▇▇▇ ▇▇▇▇▇'▇▇" West for a distance of
42.15 feet to a point of curvature of a circular curve concave to the Northwest,
having for its elements a central angle of 90o16'41", a radius of 30.00 feet and
a chord bearing of North 43o49'09" East; thence run Northeasterly along the arc
of said curve for a distance of 47.27 feet to a point of tangency on a line
being 12 feet West of and parallel with the aforementioned East line of Lot "C";
thence along said parallel line, North 01o19'12" West for a distance of 208.29
feet to a point of curvature of a circular curve concave to the West, having for
its elements a central angle of 33o13'28", a radius of 21.75 feet and a chord
bearing ▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇; thence run Northerly along the arc of said
curve for a distance of 12.61 feet to a point of non-tangency on the North line
of said Lot "C"; thence along said North line, North 88o56'27" East for a
distance of 15.56 feet to the POINT OF BEGINNING.
TOGETHER WITH:
PARCEL 2
The East 300 feet of Lot B in Block 27 of SPANISH RIVER LAND COMPANY'S Plat "A",
according to the plat thereof as recorded in Plat Book 17, Pages 27 to 30, of
the Public Records of Palm Beach County, Florida, and ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇ DEVELOPMENT CORP. PLAT 1, according to the plat thereof as recorded in
Plat Book 3, Page 37, of the Public Records of Palm Beach County, Florida.
51
52
EXHIBIT A
TOGETHER WITH:
PARCEL 3
A portion of Lots "A" and "B", Block 27, of SPANISH RIVER LAND CO. Plat "A", as
recorded in Plat Book 16, Page 29, of the Public Records of Palm Beach County,
Florida, more fully described as follows:
Commence at the Southeast corner of said Lot "B", Block 27, being the
intersection of the North Right of Way line of Camino Real and the West Line of
a 20 foot alley, thence South 88o30'00" West along said North Right of Way line,
a distance of 300.00 feet to the Point of Beginning; thence continue South
88o30'00" West along said Right of Way line, a distance of 240.85 feet; thence
North 1o30'00" West a distance of 125.00 feet; thence ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a
distance of 156.11 feet; thence Northeasterly along the new Right of Way line of
▇▇▇▇▇ Highway on a curve to the right having a radius of 528.34 feet, a central
angle of 13o12'00", an arc distance of 98.67 feet; thence Northeasterly along
said new Right of Way line on a curve to the left having a radius if 528.34
feet, a central angle of 6o05'00", an arc distance of 56.10 feet; thence North
88o30'00" East along the South Right of Way line of S.E. ▇▇▇ ▇▇▇▇▇▇ 304.78 feet;
thence South 1o44'00"East, a distance of 249.85 feet more or less to the point
of beginning.
LESS THE FOLLOWING DESCRIPTION:
A portion of Lots A and B, Block 27, of the Subdivision of SPANISH RIVER LAND
CO. PLAT A, as recorded in Plat Book 16, Page 28, of the Public Records of Palm
Beach County, Florida, more fully described as follows:
Commencing at the Southwest corner of said Lot A, being the intersection of the
old East right-of-way line of ▇▇▇▇▇ Highway with the existing North right-of-way
line of Camino Real; thence on a magnetic bearing of North 88o30'00" East, along
said existing North right-of-way line a distance at 20.32 feet; thence Northerly
on a curve, concave to the East having a chord bearing of North 17o48'52" East,
a chord distance of 132.46 feet, a radius of 428.34 feet, a central angle of
17o47'20", for an arc distance of 132.99 feet to the Point of Beginning; thence
North 88o30'00" East, and parallel to said existing North right-of-way line of
Camino Real, a distance of 156.11 feet; thence North 1o30'00" West, a distance
of 25.00 feet; thence South 88o20'00" West, a distance of 141.58 feet to a point
of the aforesaid curve extended; thence Southerly along said curve, having a
chord bearing of South 28o38'33" West, a chord distance of 28.91 feet, a radius
of 428.34 feet, a central angle of 3o52'05", an arc distance of 28.91 feet, to
the Point of Beginning.
52
53
EXHIBIT B
ESTOPPEL CERTIFICATE
1. The Lease dated ____________, executed by ____________ as Landlord and
____________as Tenant, together with the following amendments:
__________________________________, a copy of which is annexed hereto
and made a part hereof, is a full, true and complete copy of the Lease.
The premises which are the subject of the Lease are described as
follows:
____________________________________________________________________
2. Tenant has delivered to Landlord a security deposit in the amount of
$__________________.
3. Rent is due and payable as follows:
(a) Fixed or Base Rent is payable monthly in the amount of
$_______, commencing on ____________________ and ______months
of prepaid rent in the amount of $_______ has been paid;
(b) The Lease ______ is/ ____ is not a "triple net" lease. Tenant
is currently paying Additional Rent in the following amount
per month: $ _________________.
(c) Tenant's proportionate share of the common expenses
constituting Additional Rent is ____%.
4. The term of the Lease commenced on __________________________ and
terminates on ___________________.
5. The Lease, to the best of Tenant's knowledge with investigation, is in
good standing;
6. The Lease _______does/______ does not contain an option to extend such
Lease, the term of which extension is for
___________________________________________________.
53