EXHIBIT 10.2
LEASE AGREEMENT
---------------
by and between
SYSTEM REALTY TWELVE, INC.
--------------------------
("LANDLORD")
and
▇▇▇▇▇▇▇▇ BANK, N.A.
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("TENANT")
DORAL CORPORATE PLAZA II
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
PAGE
1. TERM........................................................................2
2. USE AND POSSESSION..........................................................2
3. GROSS RENT..................................................................2
4. BASE RENT ESCALATION........................................................2
5. COMMENCEMENT................................................................4
6. EXISTING LEASE OBLIGATION...................................................4
7. ADDITIONAL RENT.............................................................5
8. SECURITY DEPOSIT............................................................7
9. CAPTIONS, DEFINITIONS AND SEVERABILITY......................................7
10. NOTICES...................................................................11
11. ORDINANCES AND REGULATIONS................................................12
12. SIGNS.....................................................................12
13. SERVICES..................................................................12
14. TENANT IMPROVEMENTS.......................................................14
15. QUIET ENJOYMENT...........................................................16
16. LANDLORD'S RIGHT TO INSPECT AND DISPLAY...................................16
17. DESTRUCTION OF PREMISES...................................................17
18. CONDEMNATION..............................................................18
19. ASSIGNMENT AND SUBLETTING.................................................19
20. HOLDOVER..................................................................20
21. INDEMNIFICATION...........................................................21
22. CONSTRUCTION OF LANGUAGE..................................................21
23. DEFAULT...................................................................21
24. SUCCESSORS AND ASSIGNS....................................................23
25. NON-WAIVER................................................................23
26. RIGHTS RESERVED BY LANDLORD...............................................23
27. ASBESTOS AND OTHER HAZARDOUS MATERIALS....................................25
28. ESTOPPEL CERTIFICATE......................................................26
29. CHANGES TO THE BUILDING...................................................26
30. LANDLORD'S REPRESENTATION.................................................26
31. INSURANCE.................................................................26
32. COVENANTS AGAINST LIENS...................................................27
33. INTENTIONALLY DELETED.....................................................28
34. LANDLORD'S EXCULPATION....................................................28
35. BROKERAGE.................................................................28
36. FULL SERVICE LEASE; SEPARATE METERING.....................................29
37. BUILDING DIRECTORY........................................................29
38. OPTION TO RENEW...........................................................29
39. EXPANSION OPTION; RIGHT OF FIRST REFUSAL..................................30
40. INTENTIONALLY DELETED.....................................................31
41. THIRD PARTY RE-LOCATION...................................................31
42. DORAL CORPORATE PLAZA I (Citibank Building)...............................31
43. CANCELLATION OPTION.......................................................31
44. EXCLUSIVE USE AND COMPATIBILITY...........................................32
45. RESTRICTIONS IMPOSED BY LANDLORD'S LEASE WITH CITIBANK, N.A. .............32
46. PARKING...................................................................32
47. EMERGENCY GENERATOR.......................................................32
48. FIBER OPTIC TELECOMMUNICATION CAPABILITIES................................33
49. STORAGE...................................................................33
50. SUBORDINATION; NON-DISTURBANCE............................................33
51. MISCELLANEOUS.............................................................33
52. WAIVER OF JURY TRIAL......................................................34
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Exhibit ▇-▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ Site Plan
Exhibit B Rules and Regulations
Exhibit C Citibank Letter
Exhibit D Subordination, Nondisturbance and Attornment Agreement
Exhibit E Cleaning Specifications
Exhibit F Legal Description
Schedule I Rent Schedule
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LEASE AGREEMENT
This LEASE AGREEMENT (this "Lease"), dated December 20, 1996, by and
between SYSTEM REALTY TWELVE, INC., with its principal offices at c/o ▇.▇.
▇▇▇▇▇▇ Investment Management Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
hereafter called the "Landlord", and ▇▇▇▇▇▇▇▇ BANK, N.A., with its principal
office at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called the
"Tenant".
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the following described property, located in the building known as
Doral Corporate Plaza II at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Building"):
PREMISES: The premises (the "Premises") shall consist of a total
of 74,993 rentable square feet as follows: (a) approximately 51,538
rentable square feet (the "Phase I Premises") as of January 1, 1997,
made up of (i) 2,093 rentable square feet on floor one; (ii) 4,161
rentable square feet on floor one, currently occupied by Business
Travel Advisors, Inc. (the "Subtenant"); (iii) 23,316 rentable square
feet on floor six (constituting all of floor six); (iv) 21,868
rentable square feet on floor seven (constituting all of floor seven);
and (v) 100 rentable square feet located near the southeast corner of
the Building and contiguous to the space currently occupied by the
Subtenant. The location of the space on floor one and of the 100
rentable square feet located near the southeast corner of the Building
are identified on EXHIBIT A-1 attached hereto; (b) approximately
10,000 rentable square feet on floor five (the "Phase II Premises") as
of the date Blue Cross Blue Shield vacates the Phase II Premises, but
no earlier than January 1, 1997. Landlord and Tenant shall agree in
writing as to the location of the Phase II Premises on or before March
1, 1997. Landlord and Tenant shall execute an amendment to this Lease
memorializing the exact location of such space on or before March 1,
1997; (c) the remaining approximately 13,455 rentable square feet of
space on floor five (the "Phase III Premises") as of January 1, 1997,
less approximately 2,500 rentable square feet currently occupied by
ICF ▇▇▇▇▇▇ (the "Relocation Premises"); and (d) the Relocation
Premises as of the date ICF ▇▇▇▇▇▇ vacates such Relocation Premises.
DINING FACILITY: If Tenant elects to construct a dining facility
on the patio area adjacent to the executive offices on floor seven as
more particularly set forth in Paragraph 14, the area of the patio
shall not be included in calculating the rentable square feet of the
Premises for purposes of payment of Gross Rent or Tenant's Prorata
Share of Taxes and Operating Expenses, but for all other purposes
herein shall be deemed a portion of the Premises.
ADDITION OF OTHER AVAILABLE SPACE: If any other additional space
is available in the Building prior to the Commencement Date, Tenant
may, at its option, by providing written notice to Landlord, elect to
include such additional
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space in the Premises, and Landlord and Tenant shall enter into an
amendment to this Lease incorporating such additional space as part of
the Premises.
MISCELLANEOUS: All space to be included within the Premises
shall be measured in accordance with BOMA standards of measurement by
Landlord's architect and verified by Tenant's architect. The common
area loss factor in the Premises is fifteen percent (15%). Except to
the extent otherwise expressly set forth in this Lease, each addition
to the Premises as outlined above shall be leased "as is" under the
same terms and conditions of this Lease with respect to the Premises.
1. TERM
Tenant shall have and hold the above described Premises for a term
(the "Term") of one hundred twenty (120) months commencing on January 1,
1997, except as otherwise set forth in Paragraph 5 herein, and terminating on
December 31, 2006, on the terms and conditions as set forth herein.
2. USE AND POSSESSION
It is understood that the Premises are to be used for general office
purposes, including, but not limited to, Tenant's business of banking, to
include provisions for a computer room, vault, deposit box, executive kitchen,
dining room, employee's kitchen and cafeteria, employee and guest entertainment
room and the necessary infrastructure thereto subject to Dade County regulatory
approvals. No other use of the Premises without written consent of Landlord
shall be permitted, which shall not be unreasonably withheld or delayed. Tenant
shall not operate its business at the Premises for any unlawful purpose or so as
to constitute a nuisance. The permitted use of the Premises by Tenant is
further subject to the terms and conditions of the consent letter executed by
Citibank, F.S.B., a copy of which is attached hereto as EXHIBIT C. Tenant
agrees to accept possession of the Premises upon the Commencement Date. Taking
possession of the Premises by Tenant shall be conclusive evidence as against
Tenant that the premises were in good and satisfactory condition when possession
was so taken. Tenant, at the expiration of the term, shall deliver up the
Premises in good repair and condition, ordinary wear and tear excepted.
3. GROSS RENT
Tenant hereby covenants and agrees to pay to Landlord, together with
any and all sales and use taxes levied upon the use and occupancy of the
Premises, the annual gross rent of $18.50 per rentable square foot, plus
applicable sales tax ("Gross Rent"), in equal monthly installments payable in
advance, without demand, or any offset, defense or deduction, except to the
extent expressly permitted by the terms of this Lease, beginning (a) with
respect to the Phase I Premises, January 1, 1997, (b) with respect to the
Phase II Premises, that date that is two (2) months after the current tenant
vacates the Phase II Premises (if such date occurs on a date that is other
than the first day of the month, then the Gross Rent for such month shall be
pro-rated), but not earlier than March 1, 1997, (c) with respect to the Phase
III Premises, January 1, 1998 and (d) with
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respect to the Relocation Premises, January 1, 1998, and on the first day of
each month thereafter. All rental payments shall be made at Landlord's address
or as elsewhere designated from time to time by Landlord's written notice to
Tenant. Attached hereto as Schedule I is a schedule of the initial annual and
monthly Gross Rent during the term. The foregoing rent shall be adjusted to
reflect any additional portion of the Building added to the Premises prior or
subsequent to the Commencement Date. Base Rent (as defined in paragraph 4 of
this Lease), as a component of Gross Rent, shall be increased as set forth in
paragraph 4 of this Lease. Accordingly, Gross Rent shall be adjusted to reflect
adjustment of the Base Rent.
4. BASE RENT ESCALATION
The term "Base Rent" as used herein shall mean the Gross Rent payable
pursuant to Paragraph 3 above, minus Tenant's Pro Rata Share of Taxes and
Operating Expenses for the respective Base Years, as such terms are defined in
Paragraph 9 hereof.
(a) Commencing with the first anniversary of the "Adjustment Date" (as
hereinafter defined) and each year thereafter during the Term of this Lease (and
any extensions or renewals thereof), the annual Base Rent shall be adjusted in
accordance with changes in the "Price Index" (as hereinafter defined). The
Adjustment Date shall mean the first day of the month in which the Commencement
Date occurs. The Price Index shall mean the Consumer Price Index for all Urban
Consumer, U.S. City Average (1982-1984 equaling 100) All Items, Bureau of Labor
Statistics of the United States Department of Labor. The annual Base Rent shall
be adjusted in accordance with the following provisions.
(i) The Price Index as of the month in which the Adjustment Date
occurs shall be designated as the Base Price Index;
(ii) The Price Index as of the month in which the anniversary of
the Adjustment Date occurs in the second and subsequent lease years shall be
designated as the Comparison Price Index;
(iii) Promptly after the end of the twelve (12) month period
following the Adjustment Date and at the end of each year thereafter, the
current annual Base Rent shall be adjusted by adding to the current annual Base
Rent the amount computed by multiplying the then current annual Base Rent by the
fraction which has a numerator of the most recent Comparison Price Index minus
the most recent previous Base Price Index, and has a denominator of the Base
Price Index. Written as an equation, this computation is as follows:
Current
Annual Base Rent x MOST RECENT COMPARISON PRICE INDEX-MOST RECENT PREVIOUS BASE
PRICE INDEX
Base Price Index
(iv) The annual Base Rent as thus adjusted shall be deemed the new
annual Base Rent hereunder. No such adjustment shall reduce the annual Base
Rent below such rent for the prior lease year.
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(v) Notwithstanding the foregoing provisions, the maximum increase
in the adjusted Base Rent for any year as a result of adjustments in the
Consumer Price Index over the previous year shall be five (5%) percent.
If Landlord claims to be entitled to an adjustment of the annual Base Rent
in accordance with the above provisions, Landlord shall send notice to Tenant
setting forth the new annual Base Rent claimed to be payable. Such notices
shall be sent within three (3) months after publication of the applicable Price
Index. In the event of an adjustment in the annual Base Rent, Tenant shall pay
to Landlord, within thirty (30) days of receiving such notice, the additional
Base Rent owed for the months which have elapsed in the then current lease year
and the adjusted amount shall be paid monthly thereafter.
In the event the area of the Premises is expanded by subsequent written
agreement between Landlord and Tenant and/or the amount of the Base Rent is
increased for any portion of the Premises in connection with such expansion, the
above formula, regardless of the date on which such subsequent agreement is
entered into, shall be applied to the aggregate new Base Rent and shall be
applied as set forth above.
In the event that the Price Index hereinabove referred to ceases to
incorporate a significant number of the items currently set forth therein, or if
a substantial change is made in the method of establishing such Price Index,
then the Price Index shall be adjusted to the figure that would have resulted
had no change occurred in the manner of computing such Price Index. In the
event that such Price Index (or a successor of substitute index) is not
available, a reliable governmental or other nonpartisan publication evaluating
the information theretofore used in determining the Price Index shall be used in
lieu of such Price Index.
(b) In addition to Gross Rent, Tenant shall and hereby agrees to pay to
Landlord each month a sum equal to any sales tax, tax on rentals, and any other
governmental charges, taxes and/or impositions now in existence or hereafter
imposed based upon the amount of Gross Rent (as defined in Paragraph 3 above)
collected therefor. Nothing herein shall, however, be taken to require Tenant
to pay any part of any Federal and State Taxes on income imposed upon Landlord.
(c) Tenant shall be required to pay Landlord interest at the Default Rate
on any Rent due that remains unpaid for ten (10) days after receipt of written
notice of such non-payment from Landlord to Tenant. For all purposes of this
Lease the term "Rent" shall include all Gross Rent, charges or impositions
thereon, additional rent (as hereinafter defined), adjustments to Rent and any
and all other payments due or which may become due from Tenant to Landlord
hereunder. Said interest will be deemed to accrue from the first day of the
applicable lease month; provided, however, this provision shall not be construed
as requiring Landlord to accept any late payment of Rent or as a waiver of any
of Landlord's rights or remedies by virtue of Tenant's not making timely payment
of Rent hereunder, and Landlord's acceptance of late Rent and such interest
shall be not be construed as constituting a waiver by Landlord of any rights or
remedies available to it in the future if Rent is not timely paid by Tenant on
any one or more future occasions, including Landlord's right to declare Tenant
in default under this Lease and pursue all remedies available to Landlord
arising from such default.
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5. COMMENCEMENT
The Commencement Date shall be January 1, 1997. Notwithstanding the
foregoing, the Commencement Date as to the Phase II Premises and of the
Relocation Premises, as applicable, shall be delayed on a day-to-day basis for
each day after January 1, 1997, until Landlord is able to deliver possession of
Phase II Premises and of the Relocation Premises, as applicable, to Tenant.
Landlord shall deliver the Phase II Premises and the Relocation Premises vacated
by the current tenants thereof broom clean and free of all equipment and trade
fixtures of the current tenants thereof.
Landlord represents to and agrees with Tenant that the current tenant of
the Phase II Premises is obligated to vacate such Phase II Premises on or prior
to December 31, 1996, and that the current tenant of the Relocation Premises is
obligated to vacate such Relocation Premises on or about February 28, 1997
(depending on when Landlord completes the build-out on such tenant's relocation
premises). Landlord shall institute and diligently pursue eviction proceedings
if such tenants do not vacate their premises by January 1, 1997 with respect to
the Phase II Premises and on or prior to thirty (30) days after completion (as
evidenced by a certificate of occupancy) of the relocation space with respect to
the Relocation Premises.
6. EXISTING LEASE OBLIGATION
Tenant's Lease dated October 4, 1990, by and between Doral Corporate Plaza
Associates Limited Partnership, A Florida Limited Partnership, as landlord, and
▇▇▇▇▇▇▇▇ Bank, N.A., as tenant, shall terminate upon the Commencement Date. In
addition, Landlord shall terminate the Lease by and between Doral Corporate
Plaza Associates Limited Partnership, a Florida Limited Partnership as landlord,
and Business Traveler Advisor, Inc. (the "Subtenant"), as tenant, dated July 15,
1991, effective on the Commencement Date. Landlord acknowledges that Tenant
intends to enter into a sublease with the Subtenant with respect to the space
currently occupied by the Subtenant, and Landlord hereby approves such subtenant
and such sublease, subject to the provisions of Paragraph 19 herein.
7. ADDITIONAL RENT
(a) Tenant shall pay Landlord an amount equal to Tenant's Pro Rata Share
of Taxes in excess of the amount of Taxes paid by Landlord during the calendar
year 1996 or 1997, whichever is higher (the "Base Tax Year").
(b) Tenant shall pay Landlord an amount equal to Tenant's Pro Rata Share
of Operating Expenses in excess of the amount of Operating Expenses paid by
Landlord during the calendar year 1997 (the "Base Expense Year").
(c) Tenant's Pro Rata Share of Taxes and Operating Expenses in excess of
the respective Base Years shall be paid in the following manner:
(i) Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Taxes and Operating Expenses in excess of the respective Base
Years for any full or partial calendar year of the Term (or any extension or
renewal). In such event, Tenant shall pay
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such estimated amounts, on a monthly basis, on or before the first day of each
calendar month, together with Tenant's payment of Gross Rent. Such estimate may
be reasonably adjusted from time to time by Landlord.
(ii) Within 120 days after the end of each calendar year, or as
soon thereafter as practicable, Landlord shall provide a statement (the
"Statement") to Tenant showing: (a) the amount of actual Taxes and Operating
Expenses for such calendar year, with a listing of amounts for major categories
of Operating Expenses, and such amounts for the Base Years, (b) any amount paid
by Tenant toward Taxes and Operating Expenses during such calendar year on an
estimated basis, and (c) any revised estimate of Tenant's obligations for Taxes
and Operating Expenses for the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments were
less than Tenant's actual obligations for Taxes and Operating Expenses for such
year, Tenant shall pay the difference. If the Statement shows an increase in
Tenant's estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates, for the period from January 1
of the current calendar year through the month in which the Statement is sent.
Tenant shall make such payments within 60 days after Landlord sends the
Statement.
(iv) If the Statement shows that Tenant's estimated payments
exceeded Tenant's actual obligations for Taxes and Operating Expenses, Tenant
shall receive a refund for the difference, within 60 days after Landlord sends
the Statement.
(v) Notwithstanding the foregoing, Landlord agrees that Tenant's
Pro Rata Share of Operating Expenses shall not be increased more than five
percent (5%) per annum, non-cumulative, for controllable expenses. The five
percent (5%) cap shall not apply to non-controllable expenses. Non-controllable
expenses are third party expenses which are not within the Landlord's control,
and include, but are not limited to, utilities and insurance. Landlord agrees
to notify Tenant in writing when and as other types of non-controllable
expenses, if any, arise.
(d) If the Term commences as to any portion of the Premises other than on
January 1, or ends other than on December 31, Tenant's obligation to pay
estimated and actual amounts towards Taxes and Operating Expenses for such first
or final calendar years for such portion of the Premises shall be prorated to
reflect the portion of such years included in the term. Such proration shall be
made by multiplying the total estimated or actual (as the case may be) Taxes and
Operating Expenses, for such calendar years, as well as the Base Year amounts,
by a fraction, the numerator of which shall be the number of days of the term
for such portion of the Premises during such calendar year, and the denominator
of which shall be 365.
(e) Landlord shall maintain records respecting Taxes and Operating
Expenses and determine the same in accordance with sound accounting and
management practices, consistently applied. Although this Lease contemplates
the computation of Taxes and Operating Expenses on a cash basis, Landlord
shall make reasonable and appropriate accrual adjustments to ensure that each
calendar year, including the Base Years, includes substantially the same
recurring items. Landlord reserves the right to change to a full accrual
system of accounting so long as the same is consistently applied and Tenant's
obligations are not materially adversely affected. Tenant shall
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have the one time right to examine such records for the Base Tax Year and the
Base Expense Year, and otherwise, with respect to the most current Statement
only, upon reasonable prior notice specifying such records Tenant desires to
examine, during normal business hours at the place or places in Miami, Florida,
where such records are normally kept by sending such notice no later than 60
days following the furnishing of the Statement. Tenant may take exception to
matters included in Taxes or Operating Expenses, or Landlord's computation of
Tenant's Pro Rata Share of either, by sending notice specifying such exception
and the reasons therefor to Landlord no later than 30 days after Landlord makes
such records available for examination. Tenant acknowledges that Landlord's
ability to budget and incur expenses depends on the finality of such Statement,
and accordingly agrees that time is of the essence of this paragraph. If Tenant
takes exception to any matter contained in the Statement as provided herein,
Landlord and Tenant shall refer the matter to an independent certified public
accountant, whose certification as to the proper amount shall be final and
conclusive as between Landlord and Tenant. Tenant shall promptly pay the cost
of such certification unless such certification determines that Tenant was
over-billed by more than 5% of the entire amount of the Statement, in which case
the costs of certification shall be borne by Landlord, and Landlord shall credit
the overpayment to Tenant's next rental payment. Pending resolution of any such
exceptions in the foregoing manner, Tenant shall continue paying Tenant's Pro
Rata Share of Taxes and Operating Expenses in the amounts determined by
Landlord, subject to adjustment after any such exceptions are so resolved.
(f) Notwithstanding that Gross Rent payments on the Phase III Premises and
on the Relocation Premises do not commence until the dates set forth in
Paragraph 3 hereof, if Tenant occupies such space for the purposes of conducting
any business (as opposed to building-out or otherwise improving such space, or
using such space for storage) prior to the respective rent commencement dates,
Tenant agrees to pay to Landlord, as additional rent, Tenant's Pro Rata Share of
Operating Expenses and Taxes (estimated to be $7.50 per rentable square foot)
for such additional space effective as of the date of Tenant's occupancy of such
additional space. Any such payments shall be prorated for time and adjusted as
to area.
(g) Tenant agrees to pay to Landlord, as additional rent, on the
Commencement Date for the Phase I Premises the amount of $37,015.54 owed by the
Subtenant to Landlord. Such payment maybe made in the manner described in
Paragraph 14 of this Lease.
8. SECURITY DEPOSIT
No security deposit will be required. Landlord shall return Tenant's
$79,388.40 security deposit to Tenant and the Subtenant's $6,241.50 security
deposit to the Subtenant upon the Commencement Date.
9. DEFINITIONS
Definitions of certain terms used in this Lease are as follows:
(a) "Building" shall mean the structure identified in the introduction of
this Lease.
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(b) "Default Rate" shall mean the ▇▇▇▇▇▇ Guaranty Trust Company of New
York prime rate plus 6% per annum.
(c) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(d) "Holidays" shall mean all federally observed holidays (i.e., when
banks in the federal reserve system are closed), including without limitation
New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, and Christmas Day.
(e) "Landlord" and "Tenant" shall be applicable to one or more Persons as
the case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, advisors,
affiliates, successors and assigns.
(f) "Law" shall mean all federal, state, county and local governmental and
municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders
and other such requirements, applicable equitable remedies and decisions by
courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such state.
(g) "Mortgage" shall mean all mortgages, deeds of trust, ground leases and
other such encumbrances now or hereafter placed upon the Property or Building,
or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(h) "Operating Expenses" shall mean all expenses, costs and amounts (other
than Taxes) which Landlord shall pay during the calendar year, any portion of
which occurs during the Term, in direct connection with ownership, management,
repair, maintenance, and operation of the Property, including without
limitation, any amounts paid for: (a) utilities for the Property, including but
not limited to electricity, power, gas, steam, oil or other fuel, water, sewer,
lighting, heating, air conditioning and ventilating, (b) permits, licenses and
certificates necessary to operate, manage and lease the Property, (c) insurance
applicable to the Property, not limited to the amount of coverage Landlord is
required to provide under this Lease, (d) supplies, tools, equipment and
materials used in the direct operation, repair and maintenance of the Property,
(e) accounting, legal, inspection, consulting, concierge and other services, (f)
any equipment rental (or installment equipment purchase or equipment financing
agreements), or management agreements (including the cost of any reasonable and
customary management fee) actually paid thereunder and the fair rental value of
any office space provided thereunder, up to customary and reasonable amounts,
(g) wages, salaries and other compensation and benefits (including the fair
value of any parking privileges provided) for all persons directly engaged in
the operation, maintenance or security of the Property, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits, (h) payments under
any easement, operating agreement, declaration,
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restrictive covenant, or instrument pertaining to the sharing of costs in any
planned development, and (i) operation, repair, and maintenance of all
systems and equipment and components there of (including replacement of
components), janitorial service, alarm and security service, window cleaning,
trash removal, elevator maintenance, cleaning of walks, parking facilities
and Building walls, removal of ice and snow, replacement of wall and floor
coverings, ceiling tiles and fixtures in lobbies, corridors, restrooms and
other common or public areas or facilities, maintenance and replacement of
shrubs, trees, grass, sod and other landscaped items, irrigation systems,
drainage facilities, fences, curbs, and walkways, re-paving and re-striping
of parking facilities, and roof repairs. Tenant shall pay its Pro-Rata Share
of Operating Expenses in excess of the Base Expense Year , and as it relates
to Taxes, Base Tax Year, based upon actual increases in Operating Expenses
and Taxes. The Operating Expenses for the Operating Expense Base Year and
each year thereafter, but not fixed costs, shall be grossed up to reflect 95%
occupancy. Notwithstanding the foregoing, Operating Expenses shall not
include:
(i) Depreciation, interest and amortization on Mortgages, and
other debt costs or ground lease payments, if any; legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers' leasing
commissions; improvements or alterations to tenant spaces including tenant
improvements made pursuant to a lease for any new tenant; the cost of providing
any service directly to and paid directly by, any tenant; any costs expressly
excluded from Operating Expenses elsewhere in this Lease; costs of any items to
the extent Landlord receives reimbursement from insurance proceeds or from a
third party (such proceeds to be deducted from Operating Expenses in the year in
which received);
(i) Capital expenditures, except those: (a) made to reduce
Operating Expenses (taking into account reasonable financing charges on such
expenditures), or (b) for replacements (as opposed to additions or new
improvements) to replace existing items which are worn out; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be passed through to the extent of the lesser of (i) actual savings or
(ii) the annual amortized amount of such improvements over the shorter of: (x)
their useful lives, or (y) the period during which the reasonably estimated
savings in Operating Expenses equals the expenditures;
(iii) Costs of decorating, redecorating or special cleaning or other
services not provided on a regular basis to the tenants of the Building;
(iv) Wages, salaries, fees and fringe benefits paid to executive
personnel or officers or partners of Landlord;
(v) Any charge for depreciation of the Building or equipment and
any interest or other financing charge;
(vi) Any charge for Landlord's income taxes, excess profit taxes,
franchise taxes or similar taxes on Landlord's business, provided that Tenant
shall be responsible for payment of all sales taxes on Gross Rent imposed in
connection with this Lease;
(vii) All costs relating to activities for the solicitation and
execution of leases of space in the Building;
9
(viii) All costs for which Tenant or any other tenant in the Building
is being charged which is not included within the definition in this
subparagraph (h) of Operating Expenses, the cost of correcting defects in the
construction of the Building or in the Building equipment, except that
conditions (not occasioned by construction defects) resulting from ordinary wear
and tear will not be deemed defects for the purpose of this category;
(ix) The cost of any repair made by Landlord because of the total
or partial destruction of the Building or the condemnation of a portion of the
Building;
(x) Any increase in insurance premiums to the extent that such
increase is caused or attributable to the use, occupancy or act of another
tenant;
(xi) The cost of any items for which Landlord is reimbursed by
insurance or otherwise compensated by parties other than tenants of the
Building;
(xii) Any Operating Expenses representing an amount paid to a
related corporation, entity or person which is in excess of the amount which
would otherwise be paid in the absence of such relationship;
(xiii) The cost of work or service performed for or facilities
furnished to any tenant of the Building to a greater extent or in a manner more
favorable to such tenant than that performed for or furnished to Tenant;
(xiv) The cost of alterations of space in the Building leased to
other tenants;
(xv) The cost of overtime or other expense to Landlord in curing
Landlord's default or performing work expressly provided in this Lease to be
borne at Landlord's expense;
(xvi) Ground rent or similar payments to a ground lessor; and
(xvii) The cost of removal, abatement or treatment of asbestos or any
other hazardous substance located in the Building, unless such asbestos or
hazardous substance was placed in the Building by or at the direction of Tenant.
In no event will the total amount collected from all tenants of the Building
with regard to Operating Expenses exceed one hundred percent (100%) of the
actual Operating Expenses incurred by the Landlord. Landlord's Operating
Expenses shall be reasonable, in accordance with standard GAAP policies,
directly related to the Property and comparable to that of other first class
office buildings in the Miami Airport/West Dade office market. Landlord will
utilize reasonable efforts to minimize Operating Expenses and Taxes. All
Operating Expenses shall be directly related to the Building's operation. In
the calculation of Tenant's Pro Rata Share of Taxes and Operating Expenses, only
those Operating Expenses and Taxes attributable to the Property, the Building,
the common area of the Building and the garage and parking lot shall be included
in the computation of same. Any Operating Expenses attributable to any retail,
food service entity, or private club shall not be included in determining
Tenant's Pro Rata Share of Operating Expenses and Taxes, unless the retail, food
service entity or private club is operated within Tenant's Premises.
10
(i) "Person" shall mean an individual, trust, partnership, joint venture,
association, corporation, and any other entity.
(j) "Property" shall mean the property legally described on Exhibit "F"
attached hereto, which includes the Building, and any common or public areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, on-site parking areas, and any and all other structures or
facilities operated or maintained in connection with or for the benefit of the
Building, and all parcels or tracts of land on which all or any portion of the
Building or any of the other foregoing items are located, and any fixtures,
machinery, equipment, apparatus, systems and equipment, furniture and other
personal property located thereon or therein and used in connection therewith,
whether title is held by Landlord or its affiliates. Possession of areas
necessary for utilities, services, safety and operation of the Property,
including the systems and equipment, fire stairways, perimeter walls, space
between the finished ceiling of the Premises and the slab of the floor or roof
of the Property above, and the use thereof together with the right to install,
maintain, operate, repair and replace the systems and equipment, including any
of the same in, through, under or above the Premises in locations that will not
materially interfere with Tenant's use of the Premises, are hereby excepted and
reserved by Landlord, and not demised to Tenant.
(k) "Rent" shall mean the payments due from Tenant described in Articles
3, 4 and 7, together with such other payments that may be referred to herein as
"rent" or "additional rent" payable by Tenant.
(l) "Taxes" shall mean all federal, state, county, or local governmental
or municipal taxes, fees, charges or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary (including without
limitation, real estate taxes, general and special assessments, transit taxes,
water and sewer rents, taxes based upon the receipt of rent including gross
receipts or sales taxes applicable to the receipt of rent or service or value
added taxes (unless required to be paid by Tenant), personal property taxes
imposed upon the fixtures, machinery, equipment, apparatus, systems and
equipment, appurtenances, furniture and other personal property used in
connection with the Property which Landlord pays during any calendar year, any
portion of which occurs during the Term (without regard to any different fiscal
year used by such government or municipal authority) because of or in direct
connection with the ownership, leasing and operation of the Property.
Notwithstanding the foregoing, Taxes shall not include (i) inheritance taxes,
(ii) gift taxes, (iii) transfer taxes, (iv) franchises taxes, (v) excise taxes,
(vi) net income taxes, (vii) profit taxes, (viii) capital levies, (ix) late
payment charges and penalties, and (x) special assessments levied against any
property other than the real estate constituting a portion of the Property. If
any assessments are levied against the real estate which may be paid in
installments, Landlord may elect to pay such assessments in a lump sum or in as
many installments as Landlord desires and is permitted by the taxing authority
to do. If Landlord elects to pay any assessment in installments, Tenant shall
be entitled to reimburse Landlord for Tenant's portion of such assessments in
installments on a schedule similar to the installment payment schedule elected
by Landlord. If Landlord does not elect to pay in installments, then the
portion passed through to Tenant shall be a proportionate share of the
assessment based on the number of months left in the Term , so that in no event
shall Tenant pay any portion of an assessment allocable to any period beyond the
date of termination of this Lease.
11
(m) "Tenant's Pro Rata Share" of Taxes and Operating Expenses shall be
agreed to be .5455 or 54.55%, based upon the Building containing 137,474
rentable square feet and the Premises containing 74,993 rentable square feet.
Tenant's Pro Rata Share of Taxes and Operating Expenses shall be revised, if the
Premises at any time in the future contains more or less than 74,993 rentable
square feet, to a percentage equal to the actual rentable square feet of the
Premises divided by the actual rentable square feet contained in the Building.
Landlord represents to Tenant that the initial Premises shall contain at least
74,993 rentable square feet, and that the Building contains 137,474 rentable
square feet.
10. NOTICES
For the purpose of notice or demand, the respective parties shall be served
by written notice in the manner and to the addresses set forth below.
Specifically, notices may be given by (i) delivery in person, (ii) guaranteed
overnight courier service or (iii) by facsimile, provided that a supplemental
notice is provided within one day thereafter by one of the methods specified in
(i) or (ii), to the following addresses:
For Tenant
- Senior Vice President - Administration
▇▇▇▇▇▇▇▇ Bank, N.A.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
- ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
For Landlord
- System Realty Twelve, Inc.
c/o ▇.▇. ▇▇▇▇▇▇ Investment Management Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
- Hirschler, Fleischer, ▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (23219)
▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
- Property Management Company
KB Commercial Real Estate Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Notice shall be deemed to have been given upon receipt or upon refusal of a
party to accept receipt. Any party may change its address for notices by
delivering notice in any of the manners set forth above to the other party.
11. ORDINANCES AND REGULATIONS
Tenant hereby covenants and agrees to comply with all the rules, ordinances
and regulations of the city, county or state having jurisdiction over the
Premises, and with all ordinances and regulations of governmental authorities
wherein the Premises are located, and all applicable Federal rules, ordinances
and regulations, including all requirements that are set forth by the Americans
with Disabilities Act ("ADA"), at Tenant's sole cost and expense, but only
insofar as any of such rules, ordinances and regulations pertain to the manner
in which Tenant shall use the Premises. The obligation to comply in every other
case, and also all cases where such rules, regulations and ordinances including
all requirements set forth by the ADA require repairs, alterations, changes or
additions to the Building or Building equipment, or any part thereof, are
expressly assumed by Landlord, and Landlord covenants and agrees promptly and
duly to comply with all such rules, regulations and ordinances with which Tenant
has not herein expressly agreed to comply. Landlord represents that to the best
of Landlord's present knowledge, the Property, the Building and the Premises are
in compliance with all local, state and federal laws and regulations, except
that the Building is not in full compliance with the ADA. Landlord represents
that to the best of Landlord's present knowledge, no officer or director of
Landlord has received any notice of any violation of the ADA by the Property,
the Building or the Premises, except as set forth in a certain accessibility
conformance audit dated July 30, 1993, prepared by ▇▇▇▇▇ ▇▇▇▇, AIA, a copy of
which audit has been provided to Tenant.
12. SIGNS
During the initial Term or any renewal Term of this Lease, as long as the
Premises leased hereunder contain no less than 50,000 rentable square feet,
Tenant shall have the right to the maximum amount of roof top exterior building
signage that is permitted or rights which may be obtained pursuant to applicable
governmental ordinances as is requested by Tenant and at Tenant's sole cost and
expense. Tenant shall be entitled to all signage rights previously held by
13
Blue Cross Blue Shield. Tenant at its sole cost and expense and as is requested
by Tenant shall have prominent signage in the elevator lobby of each of its
designated floors, at the individual entrances to each of Tenant's individual
departments and business units, as well as prominent signage in the elevator
lobby area of the first floor. Landlord reserves the right to place a monument
sign in the exterior plaza area of the Building at Landlord's sole discretion.
All signage shall be subject to Landlord's written approval, which approval
shall not be unreasonably withheld. At Tenant's option, Tenant may use a
portion of the Tenant Improvement Allowance to pay for signage and installation
of signage, by providing written notice thereof to Landlord.
13. SERVICES
(a) Landlord covenants and agrees to furnish the Premises with:
(i) HVAC service from 7:00 AM to 7:00 PM Monday through Friday and
from 8:00 AM to 1:00 PM on Saturday, suitable for the intended use as general
office space, and heating and air conditioning for the comfortable use and
occupancy of the Premises;
(ii) Electric service 24 hours per day, 7 days per week, to be
provided by Florida Power and Light Company;
(iii) Janitorial service on weekdays, at a level deemed to be normal
and usual in a first-class office building, except that shampooing and
replacement of carpet as required by Tenant shall be at Tenant's expense. The
cleaning specifications are set forth on EXHIBIT E attached hereto;
(iv) Trash removal from the Premises;
(v) Furnishing, supplying and maintaining Building common areas
and rest room facilities, including water and sewage disposal, in the Building
in which the Premises are located;
(vi) Elevator service, 24 hours per day, 7 days per week; and
(vii) Security services to be provided through a third party
contract, at a level commensurate with other first class office buildings in the
Miami Airport/West Dade office market, but subject to Landlord's obligation to
minimize Operating Expenses.
All of the foregoing services shall be at Landlord's expense, unless
otherwise agreed to in this Lease (including without limitation, Tenant's
obligation to pay its Pro Rata Share of increases in Operating Expenses, but
subject to Tenant's ability as provided in Paragraph 36(b) hereof to pay for
certain Operating Expenses on a direct basis).
The foregoing services shall be provided as long as Tenant is not in
default under the terms of this Lease beyond any applicable cure or grace
periods provided herein, and shall be provided subject to interruption by
strikes, lockouts, labor controversies, inability to obtain fuel or power,
accidents, breakdowns, catastrophes, national or local emergencies, actions or
14
requirements by any governmental agency or official (unless resulting from
Landlord's negligence or willful misconduct, or Landlord's failure to maintain
the Building in compliance with applicable codes or ordinances), acts of God and
conditions and causes beyond the control of Landlord, and upon such happening,
no claim for damages or abatement of rent for failure to furnish any such
services shall be made by Tenant or allowed by Landlord nor shall any such
happening be construed as a constructive eviction of Tenant. The foregoing
events are referred to herein as "Force Majeure" events.
Notwithstanding the foregoing, if "critical services", which shall include
the provision of HVAC service, electricity, water and sewer service, and
elevator service, are interrupted by a Force Majeure event and not restored
within one hundred fifty (150) days of such interruption, Tenant may, at its
option, cancel this Lease in its entirety by written notice to Landlord, and
neither Tenant nor Landlord shall have any further obligation to each other for
any matters arising on or after the date of termination. Landlord agrees to use
its best efforts to effect a restoration of "critical services" as soon as
possible. If Landlord's insurance coverage required to be carried pursuant to
this Lease includes rent interruption insurance, and provided that a failure to
provide critical services to Tenant as a result of a Force Majeure event is an
insurable event under such insurance coverage, then Rent shall be equitably
abated during such period as critical services have been interrupted by a Force
Majeure event. If such insurance coverage does not provide that the
interruption of critical services is an insurable event, then Rent shall not be
abated.
If any critical services are interrupted due to matters within the
reasonable control of Landlord, and Tenant has provided written notice of such
interruption to Landlord, Landlord shall take such actions as are necessary to
restore the critical services as promptly as possible. If the critical services
have not been restored within ten (10) days of their interruption, Tenant shall
be entitled to an equitable abatement of Rent for the period during which the
critical services have been interrupted. In addition, if the critical services
have not been restored within ten (10) days of their interruption, Landlord
shall provide written notice to Tenant within such ten (10) day period of the
steps Landlord proposes to take in order to restore the critical services, and
the time which Landlord estimates will be necessary in order to complete the
restoration of the critical services. Landlord agrees to use its best efforts
to effect a restoration of "critical services" as soon as possible. If Landlord
fails to restore the critical services by the latter of thirty (30) days after
the initial interruption of critical services, or the time period which Landlord
has estimated is reasonably necessary in order to restore the critical services
(but not longer than sixty (60) days after the initial interruption of critical
services), Tenant may, at its option, terminate this Lease by written notice to
Landlord, and neither party shall thereafter have any further obligation under
this Lease for any events arising on or after such termination date.
(b) An additional supplemental air conditioning unit of approximately two
(2) tons, intended for use with respect to Tenant's computer room and another
designated room, have been installed at the Premises. Tenant may continue to
utilize such supplemental unit, at Tenant's sole cost and expense. In addition,
Tenant shall be allowed to install, at Tenant's cost, an additional supplemental
air conditioning unit or units. Any and all additional costs for said units
will be paid for by Tenant, and Tenant may utilize such units at Tenant's sole
cost and expense. Tenant shall submit plans and specifications for any
additional units to Landlord for Landlord's approval, which approval shall not
be unreasonably withheld or delayed.
15
Additional after hours HVAC shall be provided to Tenant at a rate that is
based upon Landlord's present hourly charge of $25.00 per hour per floor, which
charge is subject to change if Florida Power and Light Company changes its rates
for the electricity consumed by the HVAC operation. In the event one or more of
the tenants in the Building are receiving after hours HVAC at the same time as
Tenant, Landlord shall pro-rate Tenant's cost of said HVAC, in the event that
Tenant's costs are redundant with that of another Tenant.
Prior to execution of this Lease Landlord provided Tenant with the
electrical specifications of the Building. Tenant acknowledges that the
Building can provide Tenant with the electrical service to accommodate normal
office use for Tenant's use. Prior to the Commencement Date, Landlord shall
provide Tenant with specifications regarding the Building's HVAC system, and
Tenant will satisfy itself that the Building can achieve the appropriate indoor
temperature reading required by Tenant. Landlord shall guarantee that
throughout the Term and any extension or renewal that the fresh air norm
established in ASHRAE standard 62-1989 will be maintained.
If Tenant shall require electrical current or install electrical equipment
including but not limited to electrical heating, refrigeration equipment
(excluding a standard refrigerator in the employee lounge), electronic data
processing machines, punch card machines, or machines or equipment using current
which will in any way increase the amount of the electricity usually furnished
for use in general office space, Tenant will obtain prior written approval from
Landlord which consent shall not be unreasonably withheld or delayed, and Tenant
shall pay periodically for the additional direct expense involved.
(c) Landlord will maintain in good repair and working order and make all
repairs, replacements and restorations to the Building in all parts of the
Building which are required in the normal maintenance, operation and use of the
Building, including without limitation, structural elements, mechanical,
plumbing and electrical systems, walkways, paths, landscaping, exterior walls
and roof, and interior walls, floors and ceilings (excluding all of the
Premises).
14. TENANT IMPROVEMENTS
(a) Tenant, by occupancy hereunder, accepts the Premises as being in good
repair and condition. Tenant shall maintain the Premises and every part thereof
in good repair and condition, damages by causes beyond the control of Tenant,
reasonable use, ordinary wear and tear excepted. Tenant shall not make or
suffer to be made any alterations, additions or improvements to or of the
Premises or any part thereof without prior written consent of Landlord, which
consent Landlord covenants and agrees shall not be unreasonably withheld. If
Landlord requires that any alteration made by Tenant is to be removed from the
Premises at the Tenant's cost upon expiration or other termination of this
Lease, or any renewal thereof, Landlord must notify Tenant accordingly when it
provides Tenant its consent to such alteration. In the event Landlord consents
to the proposed alterations, additions, or improvements, any such alterations,
additions or improvements shall be made at such times and in such manner as not
to unreasonably interfere with the occupation, use and enjoyment of the
remainder of the Building by the other tenants thereof. Landlord may require
Tenant to use contractors reasonably acceptable to Landlord. Tenant shall
reimburse Landlord for all outside third party expenses (such as expenses of
outside
16
architects or engineers) incurred by Landlord in reviewing any request for
alterations. All additions, fixtures, alterations or other improvements made by
Tenant which Landlord has not required Tenant to remove upon the expiration or
termination of this Lease shall be and remain a part of the Premises at the
expiration or termination of this Lease. Notwithstanding the foregoing, Tenant
shall be allowed to return the Premises to Landlord upon termination of this
Lease, with all improvements made during Tenant's initial fit out of the
Premises, except for any cafeteria proposed to be built on the fifth floor.
(b) Notwithstanding the foregoing, Tenant shall be permitted to renovate
the entire first, fifth, sixth and seventh floor spaces. Landlord shall provide
Tenant with a Tenant improvement allowance equal to $15.00 per rentable square
foot for the entire Premises (the "Tenant Improvement Allowance"). At Tenant's
option, the Tenant Improvement Allowance may be used for the following purposes:
(i) Payment of any leasing or brokerage commission payable by
Tenant in connection with this Lease;
(ii) Payment of the amount of $37,015.54 owed by the Subtenant to
Landlord;
(iii) For payment of any tenant improvements made to any portion of
the Premises pursuant to plans and specifications reviewed and approved by
Landlord as set forth in this Lease;
(iv) For payment of expenses of signage and installation of
signage; and
(v) For payment of Rent hereunder during the first twelve (12)
months of the Term.
(c) Payments from the Tenant Improvement Allowance will be made by
Landlord to Tenant on a monthly basis. Leasing or brokerage commissions payable
by Tenant as set forth in subparagraph (b)(i) above shall be paid to Tenant or
at Tenant's direction within five (5) days after Tenant has delivered an
applicable invoice or invoices to Landlord. With regard to payment for expenses
incurred by Tenant as set forth in subparagraphs (b)(iii) and (iv) above,
Landlord shall fund any such costs included within Tenant's draw request,
accompanied by copies of paid invoices, submitted by the 25th day of the month
by the 10th day of the following month. The expenses to be paid by Tenant as
set forth in subparagraph (b)(ii) above shall be credited against the Tenant
Improvement Allowance contemporaneously with the Commencement Date for the Phase
I Premises.
(d) A running account of disbursements of the Tenant Improvement Allowance
shall be maintained from the execution of this Lease. To the extent that in any
month during the first year of the Term, the total amount disbursed by Landlord
to Tenant under the Tenant Improvement Allowance from the date of this Lease is
less than the total amount of Rent paid by Tenant to Landlord from the date
hereof, the Tenant shall be entitled pursuant to subparagraph (b)(v) above, to
have the next monthly disbursement of the Tenant Improvement Allowance applied
against the greater of (i) such month's Rent payment or (ii) any other payments
which are
17
authorized to be paid out of the Tenant Improvement Allowance as set forth in
subparagraph (b) above.
(e) Tenant shall submit its plans for renovation of the Premises to
Landlord for Landlord's approval, which approval shall not be unreasonably
withheld or delayed. Landlord shall approve or disapprove Tenant's renovation
plans within ten (10) business days from Landlord's receipt of such plans.
Landlord may require that Tenant use contractors reasonably acceptable to
Landlord. All work performed within the Premises by Tenant shall be performed in
a good and workmanlike manner, and completed free of any mechanics' or
materialmen's liens. All work shall also be completed in compliance with all
applicable governmental requirements. Landlord will provide all reasonable
services, including use of elevators, air conditioning during normal working
hours, electricity and delivery docks for Tenant's renovation. Tenant shall be
permitted to purchase Landlord's work letter materials or stock, if any, at
Landlord's cost. Landlord will provide at its sole cost and expense copies of
mechanical, electrical and plumbing plans available from Landlord's files for
the Premises.
(f) Tenant shall have the right to construct a dining facility on the
patio area adjacent to the seventh floor executive offices, subject to approval
of the plans and specifications by Landlord, which approval shall not be
unreasonably withheld or delayed. Landlord shall approve or disapprove Tenant's
plans for construction of the dining facility within ten (10) business days of
receipt of such plans. The improvements, if elected by Tenant, are referred to
herein as the "Dining Facility". Expenses for constructing the Dining Facility
may be paid out of the Tenant Improvement Allowance. Otherwise, the cost of the
Dining Facility shall be paid by Tenant.
(g) Tenant shall have the right to bid the renovation of the Premises and
the Dining Facility, select the contractor (subject to Landlord's reasonable
approval) and supervise construction. All contractors and sub-contractors doing
work within the Premises, must be licensed to do business in Dade County and
must provide certificates of insurance satisfactory to Landlord, which approval
will not be unreasonably withheld. Landlord shall not receive any construction
or administration fees of any kind during planning or renovation. In addition,
Tenant shall provide Landlord with evidence of builder's risk insurance
reasonably satisfactory to Landlord naming Landlord as additional insured.
15. QUIET ENJOYMENT
Landlord covenants and agrees that Tenant, on paying said monthly rent and
performing the covenants herein, shall and may peaceably and quietly hold and
enjoy the said Premises, free of claims of prior rights by parties claiming by
or through Landlord.
16. LANDLORD'S RIGHT TO INSPECT AND DISPLAY
Landlord shall have the right, at reasonable times during the term of this
Lease, to enter the Premises for the purpose of examining or inspecting same
and of making such repairs or alterations or other modifications as Landlord
shall deem necessary. Landlord shall also have the right to enter the Premises
at all reasonable hours for the purpose of displaying said Premises to
prospective Tenants within 180 days prior to the termination of this Lease.
Except in cases of
18
emergency, Landlord will limit its right to inspect to Tenant's normal business
hours. Landlord will provide Tenant with reasonable prior notice of its intent
to enter the Premises, except in the event of an emergency, in which case no
notice shall be required. Landlord will use all reasonable efforts to minimize
any interference with Tenant's business operations in the Premises in exercising
Landlord's right of entry.
17. DESTRUCTION OF PREMISES
(a) If (i) the Premises are totally destroyed by fire or other casualty,
(ii) fifty percent (50%) or more of the Building is destroyed by fire or other
casualty, or (iii) if Tenant's access to the Premises is destroyed by fire or
other casualty to the extent that such destruction would constitute an insurable
event under Landlord's rent loss insurance coverage, and in the case of (iii)
such damage cannot be repaired so as to permit Tenant's access to the Premises
within one hundred fifty (150) days after the fire or other casualty, Tenant
shall have the option of terminating this Lease upon giving written notice at
any time within sixty (60) days from the date of such destruction, and if the
Lease be so terminated, all Rent shall cease as of the date of such destruction
and any prepaid Rent shall be refunded by Landlord. The events set forth in
(i), (ii) and (iii) above are referred to herein as a "Major Casualty". If
Tenant does not elect to terminate this Lease upon the occurrence of a Major
Casualty, Landlord shall use due diligence to repair or restore the Building and
the Premises to a condition and quality substantially similar to that
immediately prior to such Major Casualty. If such restoration, rebuilding or
repair is not accomplished within 150 days after Tenant's notice to Landlord of
Tenant's election not to cancel this Lease, and such failure does not result
from causes beyond the control of Landlord, Tenant shall have the right to
terminate this Lease by written notice to Landlord within thirty (30) days after
expiration of said 150 days. All Rent and other payments due from Tenant to
Landlord hereunder shall be equitably abated from the date of the Major Casualty
through the date on which Tenant is given possession of the restored Premises,
with access to the Premises. Notwithstanding the foregoing, Landlord shall be
entitled to terminate this Lease in the event of a Major Casualty if the Major
Casualty occurs within the last twelve (12) months of the then current Term of
the Lease. If the Major Casualty occurs within the last twelve (12) months of
the initial Term, and Tenant has not elected to terminate this Lease, Landlord
shall not be entitled to terminate this Lease if Tenant exercises its option to
renew the Lease pursuant to the terms of this Lease. Such notice must be given
by Tenant within sixty (60) days after receipt by Tenant of Landlord's notice
advising Tenant that Landlord intends to terminate the Lease. If Tenant
exercises its option to extend the Term pursuant to the terms of this Lease, the
initial Term of the Lease shall be extended, on a day-to-day basis, for the
period of time from the date of the Major Casualty through the date of
substantial completion of the restoration of the Premises and such portions of
the Building as are necessary to provide access to the Premises and the services
required to be provided by Landlord hereunder, and the extension Term shall be a
full five (5) year Term beginning on the expiration of the initial Term. If
Landlord exercises its option to terminate this Lease, it may only do so if it
terminates every other lease in the Building, similarly affected, to the extent
that Landlord has the right to terminate such other leases. Upon termination of
this Lease by either Landlord or Tenant, all claims that either Landlord or
Tenant may have against the other shall survive termination of the Lease.
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(b) Any damage or destruction by fire or other casualty to the Premises,
the Building or Tenant's access to the Premises which does not constitute a
Major Casualty shall be referred to herein as a "Minor Casualty". Landlord
agrees, at Landlord's sole cost and expense, to restore the Premises and the
Building after Minor Casualty to a kind and quality substantially similar to
that immediately prior to such Minor Casualty, and to use due diligence in
effecting such restoration as soon as possible. Landlord will provide written
notice to Tenant within sixty (60) days after the occurrence of the Minor
Casualty of the estimated time required for the repair or restoration of the
Premises or portion of the Building necessary for Tenant's occupancy. If the
estimated time is in excess of one hundred fifty (150) days after the Minor
Casualty (a "Category 2 Minor Casualty"), Tenant may elect, within sixty (60)
days after Landlord's notice of estimated time required to repair or restore to
terminate this Lease by written notice to Landlord, which termination shall be
effective on the date of Tenant's notice to Landlord of its intention to
terminate this Lease. All Rent and other payments by Tenant to Landlord under
this Lease shall be equitably abated during the period of any Minor Casualty.
Said restoration shall be commenced within a reasonable time and completed
without delay on the part of Landlord and in any event shall be accomplished for
Minor Casualties that are not Category 2 Minor Casualties (a "Category I Minor
Casualty") within 150 days from the date of the fire or other casualty, and for
Category 2 Minor Casualties, within the time frame set forth in Landlord's
notice to Tenant of the estimated repair time (subject to delays with respect to
Category II Minor Casualties due to causes beyond the control of Landlord). If
Landlord does not complete such restoration, rebuilding or repair within such
150 days or time period set forth in Landlord's notice, as applicable, then
Tenant may elect, within sixty (60) days after the expiration of such 150 days
or time period set forth in Landlord's notice, as applicable, to terminate this
Lease by written notice to Landlord, which termination shall be effective on the
date of Tenant's notice to Landlord of its intention to terminate this Lease.
In such case, all Rent paid in advance shall be prorated as of the date of
damage or destruction and all Rent thereafter accruing shall be equitably and
proportionately adjusted according to the nature and extent of the destruction
or damage, pending completion of rebuilding, restoration or repair, except that
in the event the destruction or damage is so extensive as to make it unfeasible
for Tenant to conduct its business on the Premises, the Rent shall be completely
abated until the Premises are restored by Landlord or until Tenant resumes use
and occupancy of the Premises, whichever shall first occur. Landlord shall not
be liable for any inconvenience or interruption of business of Tenant occasioned
by fire or other casualty.
(c) Landlord shall not be liable for any casualty damage to any personal
property which may now or hereafter be located on the Premises, and Landlord
shall not be required to carry fire, casualty or extended damage insurance on
the personal property of Tenant or any personal property which may now or
hereafter be placed in the Premises.
(d) For purposes hereof, a "casualty" shall be deemed to include, without
limitation, damage resulting from bursting water pipes, actions of Landlord
and/or its employees, agents and contractors and any other damage whether caused
by acts of God or otherwise.
18. CONDEMNATION
If, during the term of this Lease or any renewal thereof, (i) the whole of
the Premises, or such portion thereof as will make the Premises unusable for the
purposes set forth in this Lease, or (ii) twenty percent (20%) of the total
parking spaces located on the Property (unless substitute
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parking either on site, contiguous to the Property, or within a reasonable
walking distance of the Property, is provided in substitution for the lost
visitors' parking spaces and parking spaces lost in the critical parking areas
outlined in red on the site plan attached hereto as Exhibit A-2 are not
repositioned by Landlord in the area outlined in green on such site plan), be
condemned by public authority for public use, or conveyed by deed in lieu
thereof, then, in either event, this Lease shall terminate as of the date of the
vesting of title in such public authority, or when possession is given to such
public authority, whichever event last occurs. Upon such occurrence Rent shall
be prorated as of such date and any prepaid Rent shall be returned to Tenant.
Landlord shall be entitled to Landlord's award for such taking, and Tenant shall
be entitled to pursue a separate award for its damages. If a portion of the
Premises is taken or condemned by public authority for public use so as not to
make the remaining portion of the Premises unusable for the purposes set forth
in this Lease, this Lease will not be terminated but shall continue. In such
case, Rent shall be equitably and fairly reduced or abated for the remainder of
the Term in proportion to the amount of the Premises taken. In no event shall
Landlord be liable to Tenant for any business interruption, diminution in use or
for the value of any unexpired Term of this Lease. Nothing contained herein
shall prohibit Tenant from applying in Tenant's name for any entitlement or
separate award from the condemning authority.
19. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, as further described below: (i)
assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach
to, or otherwise transfer, this Lease or any interest hereunder, by operation of
law or otherwise, (ii) sublet the Premises or any part thereof, or (iii) permit
the use of the Premises by any Persons other than Tenant, its employees and its
invitees (all of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any Person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "Transferee"). If
Tenant shall desire Landlord's consent to any Transfer, Tenant shall notify
Landlord in writing, which notice shall include: (a) the proposed effective date
(which shall not be less than thirty (30) nor more than 180 days after Tenant's
notice), (b) the portion of the Premises to be Transferred (herein called the
"Subject Space"), (c) the terms of the proposed Transfer and the consideration
therefor, the name and address of the proposed Transferee, and a copy of all
documentation pertaining to the proposed Transfer, and (d) current financial
statements of the proposed Transferee certified by an officer, partner or owner
thereof, and any other information to enable Landlord to determine the financial
responsibility, character, and reputation of the proposed Transferee, nature of
such Transferee's business and proposed use of the Subject Space, and such other
information as Landlord may reasonably require. Tenant's request to Landlord's
consent to a proposed assignment or sublease will be conclusively presumed
denied if Landlord fails to respond within ten (10) days after Landlord's
receipt of Tenant's proposal. Any Transfer made without complying with this
paragraph shall, at Landlord's option, be null, void and of no effect, or shall
constitute a Default under this Lease. Whether or not Landlord shall grant
consent, Tenant shall pay $300.00 towards Landlord's review and processing
expenses, as well as any reasonable legal fees incurred by Landlord, within
thirty (30) days after written request by Landlord. Tenant shall remain liable
to Landlord for all of its obligations hereunder, notwithstanding Landlord's
consent to any assignment of this Lease or subletting of
21
any portion of the Premises, except to the extent that Landlord expressly agrees
in writing that Tenant shall be released from its obligations hereunder.
(b) Landlord will not unreasonably withhold its consent to any proposed
Transfer of the Subject Space to the Transferee on the terms specified in
Tenant's notice. The parties hereby agree that it shall be reasonable under
this Lease and under any applicable Law for Landlord to withhold consent to any
proposed Transfer where one or more of the following applies (without limitation
as to other reasonable grounds for withholding consent): (i) the Transferee is
of a character or reputation or engaged in a business which is not consistent
with the quality of the Property, (ii) the Transferee intends to use the Subject
Space for purposes which are not permitted under this Lease, (iii) the Subject
Space will not be in compliance with all applicable governmental statutes, rules
and regulations, (iv) the Transferee is a government (or agency or
instrumentality thereof) but excluding Tenant's regulatory agency; (v) the
Transferee is a then current occupant of the Building, unless Landlord has first
submitted a proposal to such Transferee for lease of other available space in
the Building, and such Transferee has not accepted Landlord's proposal within
thirty (30) days; and or (vi) Tenant has committed and failed to cure a default
within any applicable grace or cure period.
(c) Notwithstanding the foregoing, Tenant may, upon written notice to
Landlord, without the need for prior approval assign or sublet the Premises in
whole or in part to any affiliate or subsidiary of Tenant, or to any business
organization of which Tenant shall become a part by merger, purchase, or
operation of law.
(d) Landlord shall be entitled to receive fifty percent (50%) of all of
the "Net Profit" (net profit shall be defined as profit minus all reasonable
tenant marketing, legal and construction and all other expenses related to the
sublet of the Premises or any portion thereof) received by Tenant as a result of
the assignment of this Lease or the subletting of all or any portion of the
Premises. No assignment of this Lease or subletting of any portion of the
Premises shall release Tenant from any of its obligations hereunder, unless the
proposed subtenant has been expressly approved by Landlord, and Tenant is
released by an express, written release from Landlord.
20. HOLDOVER
(a) If Tenant, any assignee or subtenant shall continue to occupy the
Premises after the termination of this Lease without prior written consent of
Landlord, such tenancy shall be a tenancy at sufferance. During such holdover
period, the rent due will be double the amount of rent due for the last month of
the lease Term for each month or portion thereof that Tenant, any assignee or
subtenant holds over, plus all damages that Landlord may suffer on account of
the failure to so surrender to Landlord possession of the Premises, and Tenant
will indemnify, defend and save Landlord harmless from and against all claims
made by any succeeding tenant of the Premises against Landlord on account of
delay of Landlord in delivering possession of the Premises to said succeeding
tenant to the extent such delay is occasioned by failure of Tenant, its assignee
or subtenant to surrender the Premises.
(b) Notwithstanding the foregoing, Tenant shall have the unconditional
right to holdover beyond the expiration of the Term or any extension or renewal
for a period of up to six
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months, provided that Tenant is not then in default beyond any applicable grace
or cure period hereunder. The monthly rental to be paid during the holdover,
shall be the rental paid in the last month of the expired Term or renewal or
extension Term. Tenant may vacate the Premises by giving Landlord sixty (60)
day written notice within the holdover period. If Tenant, any assignee or
subtenant shall continue to occupy the Premises after the end of such six month
holdover period, the provisions in subparagraph (a) of this Paragraph 20 shall
apply from that point forward.
(c) No receipt of money by Landlord from Tenant after termination of this
Lease (and the holdover period described in subparagraph (b) above) or the
service of any notice of commencement of any suit or final judgment for
possession shall reinstate, continue or extend the Term of this Lease or affect
any such notice, demand, suit or judgment, or otherwise limit or affect any
other remedies available to Landlord hereunder. No act by Landlord or its
agents during the Term of this Lease shall be deemed an acceptance of a
surrender of the Premises unless it is made in writing by a duly authorized
officer or agent of Landlord.
(d) Tenant agrees to surrender to Landlord, at the end of the Term of this
Lease and/or upon any cancellation of this Lease, subject to the holdover
provisions stated above, the Premises in as good condition as the Premises were
at the Commencement Date, ordinary wear and tear not caused by Tenant's
negligence excepted. Tenant shall be allowed to return the Premises, together
with all improvements that the Lease permits Tenant to make, provided that
Landlord has not required Tenant to remove such alterations or improvements at
the time of giving its consent to the alterations or improvements, as more
particularly set forth in Paragraph 14(a) herein.
21. INDEMNIFICATION
(a) Landlord shall not be liable for any damage or injury to any person or
property whether it be the person or property of Tenant, Tenant's employees,
agents, guests, invitees or otherwise by reason of Tenant's occupancy of the
Premises or because of fire, flood, windstorm, acts of God or for any other
reason, unless caused by the fault or negligence of Landlord or its directors,
officers, shareholders, employees, agents or contractors. Tenant agrees to
indemnify, defend and save harmless Landlord and its officers, directors,
shareholders, employees, advisors and agents (the "Indemnitees") from and
against any and all loss, damage, claim, demand, liability or expense by reason
of damage to person or property which may arise or be claimed to have arisen as
a result of the occupancy or use of the Premises by Tenant or by reason thereof
or in connection therewith, or in any way arising on account of any injury or
damage caused to any person or property on or in the Premises, providing,
however, that Tenant shall not indemnify as to the loss or damage due to fault
or negligence of any Indemnitee. If Tenant's use of the Premises causes
Landlord's insurance premium for the Building to be increased, Tenant agrees to
pay, as additional rent plus any applicable sales or use taxes, the entire cost
of such increase.
(b) Landlord agrees to indemnify, defend and save harmless Tenant and its
officers, directors, shareholders, employees, advisors and agents (the "Tenant
Indemnitees"), but only to the extent permitted by Virginia law, from and
against any and all loss, damage, claim, demand, liability or expense by reason
of damage to person or property which may arise or be claimed to
23
have arisen as a result of Landlord's failure to perform its obligations
hereunder with respect to the Property, including the Building and the Premises,
providing, however, that Landlord shall not indemnify as to any loss or damage
due to the fault or negligence of any Tenant Indemnitee. If at any time in the
future, Landlord is permitted by law to indemnify third parties, or if Landlord
shall ever be a party unrelated to the Virginia Retirement System, the
limitation on Landlord's indemnification of the Tenant Indemnitees shall no
longer be applicable.
22. CONSTRUCTION OF LANGUAGE
The terms "lease", "lease agreement" or "agreement" shall be inclusive of
each other, also to include renewals, extensions or modifications of the Lease.
The use of the words "term of this Lease" shall include renewals extensions or
modifications of this Lease where applicable. Words of any gender used in this
Lease shall be held to include any other gender, and words in the singular shall
be held to include the plural and the plural to include the singular, when the
sense requires. The paragraph headings and titles are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
23. DEFAULT
(a) In the event that: (seq level4 \*romani) Tenant shall default in the
payment of Rent or any other sums payable by Tenant herein, and such default
shall continue for a period of ten (10) days after receipt of Landlord's written
notice thereof to Tenant; (seq level4 \*romanii) Tenant shall default in the
performance of any other covenants or agreements to be performed by Tenant under
this Lease, and such default shall continue for thirty (30) days after receipt
of written notice from Landlord, provided, however, that if the default is not
susceptible to cure by Tenant within such thirty (30) day period, and further
provided that if Tenant begins such cure, provides Landlord notice in writing of
the steps it is taking to attempt to cure and the estimated time required for
completion of the cure, and Tenant continuously and diligently prosecutes such
cure to completion, it shall not constitute a Default hereunder; (seq level4
\*romaniii) Tenant shall become bankrupt or insolvent or unable to pay its debts
as they become due, or files any debtor proceedings, or if Tenant shall take or
have taken against it in any court pursuant to any statute either of the United
States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver for Tenant's property,
unless such petition, in the case of an involuntary proceeding, is dismissed
within forty-five (45) days, or if Tenant makes an assignment for the benefit of
creditors, or petitions for or enters into an arrangement for the benefit of
creditors, any of the foregoing events shall be deemed a "Default" hereunder,
and Landlord may, in addition to any other remedies contained in this Lease, and
any other remedies as may be permitted by law, exercise the following rights and
remedies: (a) terminate this Lease and/or Tenant's right to possession
hereunder by notice in writing to Tenant; and/or (b) enforce Landlord's rights
under this Lease by bringing suit in law and/or in equity. Upon any termination
of this Lease, whether by lapse of time or otherwise, Tenant shall immediately
surrender possession and vacate the Premises immediately, and deliver possession
thereof to Landlord. Tenant hereby grants to Landlord full and free license to
enter into and upon the Premises in such event with process of law and to expel
or remove Tenant and any others who may be occupying or within the Premises, and
to remove all property therefrom with process of law, without being deemed in
any manner guilty of trespass, eviction or forcible
24
entry or detainer, and without relinquishing Landlord's rights to Rent or any
other right given the Landlord hereunder or by operation of law.
(b) If Tenant abandons the Premises or otherwise entitles Landlord to
elect that Tenant has abandoned the Premises and Tenant fails to pay Rent when
due, subject to the notice and cure provisions herein, and Landlord elects to
terminate Tenant's right to possession only, without terminating the Lease,
Landlord may, at Landlord's option, with process of law, enter into the
Premises, remove Tenant's evidence of tenancy, and take and hold possession of
the Premises without such entry and possession terminating the Lease or
releasing Tenant, in whole or in part, from Tenant's obligation to pay the Rent
hereunder for the full Term. Upon and after entry into possession of the
Premises without termination of the Lease, Landlord shall use reasonable efforts
to relet the Premises or any part thereof, as the agent of Tenant, to any
person, firm or corporation other than Tenant for such Rent, for such time and
upon such terms as Landlord in Landlord's sole discretion shall determine. In
any such case, Landlord may make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent deemed by Landlord necessary or
desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expense of the reletting. If the consideration collected by Landlord
upon any such reletting for Tenant's account is not sufficient to pay monthly
the full amount of Rent reserved in the Lease, together with the costs of
repairs, alterations, additions, redecorating and Landlord's expenses, Tenant
shall pay to Landlord the amount of each monthly deficiency upon demand.
(c) Subject to due process of law, Landlord may enter upon the Premises in
the event of Default by Tenant, to remove any and all furniture and personal
property situated upon the Premises. Any and all property which may be removed
from the Premises by Landlord pursuant to the authority of this Lease or of law,
to which Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event
be responsible for the value, preservation or safekeeping thereof. Tenant shall
pay the Landlord, upon demand, all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Landlord may place such property in
storage for the account of, and at the expense of Tenant, and if Tenant fails to
pay the cost of storing such property after it has been stored for a period of
ninety (90) days or more, Landlord may sell any or all of such property in such
manner and at such times and places as Landlord in its sole discretion may deem
proper, upon reasonable prior written notice to Tenant, for the payment of any
part of such charges for the removal of any such property, and shall apply the
proceeds thereof, first, to such sale, including reasonable attorneys' fees;
second, to the payment of the costs and charges of storing such property; third,
to the payment of any other sums of money which may then or thereafter be due to
Landlord from Tenant under this Lease; and fourth, the balance, if any, to
Tenant. The removal and storage of Tenant's property as above provided shall
not constitute a waiver of the Landlord's lien thereon.
(d) If Tenant fails or refuses to comply with and perform any conditions
and covenants of this Lease after the expiration of any applicable grace period,
Landlord may, as Landlord so elects, carry out and perform such conditions and
covenants, at the cost and expense of Tenant, and the said cost and expense
shall be payable upon demand, as additional rent with interest from the date of
expenditure at the Default Rate. This remedy shall be in addition to all other
remedies
25
Landlord may have hereunder by reason of breach by Tenant of any of the
covenants and conditions in this Lease.
(e) If Landlord is in default hereunder or fails to make any repairs which
this Lease or any Law requires it to make, Tenant may provide written notice of
such failure to Landlord and to any mortgagee holding a lien on the Property or
the Building, if Landlord has provided written notice to Tenant of the name and
address of any such mortgagee. Tenant shall permit Landlord or such mortgagee
to make any repairs which this Lease or any applicable law requires it to make,
or to cure such default, within thirty (30) days after receipt of the notice
from Tenant, or such lesser time period as is otherwise expressly provided in
this Lease, provided that if no other time period is expressly provided for cure
of Landlord's default, and the default cannot be cured within such thirty (30)
day period, Landlord or its mortgagee shall have such additional time as is
reasonably necessary to cure Landlord's default if the cure is commenced within
the thirty (30) day period and is continuously and promptly continued to
completion. If Landlord and its mortgagee fail to make such repairs or cure
such defaults within the foregoing time periods, Tenant may, but is not required
to, cure such defaults or make such repairs, as the case may be. If Tenant
cures such default or makes such repairs, all amounts paid by Tenant in doing so
and all costs and expenses incurred by Tenant in connection with doing so
(together with interest at the Default Rate) will be payable by Landlord to
Tenant on demand. If Tenant has obtained a final, non-appealable judgment from
a court of competent jurisdiction in favor of Tenant, then the amount of the
judgment plus interest may be offset against Rent by Tenant until such judgment
plus interest is paid in full. Tenant shall provide prompt written notice to
Landlord of Tenant's exercise of its right to offset Rent.
24. SUCCESSORS AND ASSIGNS
This Lease shall bind and inure to the benefit of the successors, assigns,
heirs, executors, administrators and legal representatives of the parties
hereto.
25. NON-WAIVER
Failure of Landlord to declare any Default immediately upon the occurrence
thereof, or delay in taking any action in connection therewith, shall not waive
such Default, but Landlord shall have the right to declare any such Default at
any time and take such action as might be lawful or authorized herein. No
waiver by Landlord of a Default by Tenant shall be implied, and no express
waiver by Landlord shall effect any Default other than the Default specified in
such waiver. No waiver of any term, provision, condition or covenant of this
Lease by Landlord shall be deemed to imply or constitute a further waiver by
Landlord of any other term, provision, condition or covenant of this Lease.
26. RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
26
(a) To change the name, Doral Corporate Plaza, or street address of the
Property, provided, however, that Tenant shall have the right to preclude
Landlord from naming the Building in such a manner as would have a material
adverse effect on Tenant's use and occupancy of the Premises as provided in this
Lease; install and maintain signs on the exterior and interior of the Property
except as herein provided to the contrary; and have access for Landlord and
other tenants of the Property to any mail chutes located on the Premises
according to the rules of the United States Postal Service.
(b) To enter the Premises at reasonable hours for reasonable purposes,
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers, and prospective purchasers, Tenants
and brokers, at reasonable business hours. Landlord shall give Tenant
reasonable prior notice of its intent to enter the Premises, except in the event
of an emergency, in which event no prior notice shall be required, and further
provided that no notice shall be required for the daily provision of cleaning
services as set forth in this Lease. Cleaning services shall be provided after
5:00 p.m., eastern time, however, Tenant may request that certain confidential
areas of the Premises be cleaned or inspected during regular business hours,
under the supervision of an employee of Tenant.
(c) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of Tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or any other dangerous condition, or
threat thereof.
(d) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent Building, structure, parking facility, land, street or alley (including
without limitation changes and/or reductions in corridors, lobbies, parking
facilities and other public areas and the installation of kiosks, planters,
sculptures, displays, escalators, mezzanines, stairwells, and other structures,
facilities, amenities and features therein, and changes for the purpose of
connection with or entrance into or use of the Property in conjunction with any
adjoining or adjacent building or buildings, now existing or hereafter
constructed). In connection with such matters, or with any other repairs,
maintenance, improvements or alterations, in or about the Property, Landlord may
erect scaffolding and other structures reasonably required, and during such
operations may enter upon the Premises and take into and upon or through the
Premises, all materials required to make such repairs, maintenance, alterations
or improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors. Landlord will use reasonable efforts to exercise its
right of access at times to cause the least amount of disruption to Tenant's
business, except for access needed for emergency purposes or emergency repairs.
If Tenant requests Landlord to utilize its right of access after hours or on
weekends, and the access is not needed for emergency purposes or emergency
repairs, Landlord will comply with Tenant's request provided that Tenant pays
any overtime pay Landlord incurs as a result of scheduling the right of access
after hours or on weekends. Landlord shall not close off or change the common
area of the Building in such a way as to prohibit Tenant's reasonable access to
the Premises.
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(e) From time to time to make and implement such reasonable rules and
regulations for the protection and welfare of the Building and its tenants and
occupants, as Landlord may deem desirable, and Tenant agrees to abide by all
such rules and regulations provided they are reasonable and uniformly enforced,
including, the rules and regulations set forth on EXHIBIT B attached hereto.
Any modification or addition to the rules and regulations by Landlord shall be:
(i) reasonable and consistent with rules and regulations imposed
in similar properties;
(ii) no more burdensome or costly than the rules and regulations
attached hereto as EXHIBIT B;
(iii) any conflict between such additional rules and regulations and
this Lease shall be governed by the terms of this Lease; and
(iv) uniformly enforced.
27. ASBESTOS AND OTHER HAZARDOUS MATERIALS
(a) Landlord represents and warrants that, to the best of Landlord's
actual knowledge, there is no asbestos or other Hazardous Substances (as defined
in (b) below) on the Premises or in the Building. Landlord shall not generate,
store, manufacture, refine, transport, treat or dispose of on or about the
Building, any Hazardous Substances (except for Hazardous Substances typically
used in operating, cleaning or maintaining business offices, with respect to
which Landlord shall comply with all present or future applicable Federal, state
or local laws, rules or regulations dealing with environmental protection).
(b) Tenant shall not generate, store, manufacture, refine, transport,
treat or dispose of on or about the Building, any Hazardous Substances. As used
herein, Hazardous Substances shall be defined as any "hazardous chemical",
"hazardous substance" or similar term as defined in the Comprehensive
Environmental Responsibility Compensation and Liability Act, as amended (42
U.S.C. 9601 ET SEQ.), any rules or regulations promulgated thereunder, or in any
other present or future applicable Federal, state or local law, rule or
regulation dealing with environmental protection (except for Hazardous
Substances typically used in operating, cleaning or maintaining business
offices, with respect to which Tenant shall comply with all present or future
applicable federal, state or local laws, rules or regulations dealing with
environmental protection). The term "Hazardous Substances" as used herein shall
be deemed to include petroleum products.
(c) Tenant agrees to indemnify, defend and hold Landlord and each
mortgagee of the Premises harmless from and against any and all liabilities,
damages, claims, losses, judgments, causes of action, costs and expenses
(including the reasonable fees and expenses of Landlord's and such mortgagee's
counsel and environmental consultants) which may be incurred by the Landlord or
any mortgagee or threatened against the Landlord or such mortgagee relating to
or arising out of any breach by Tenant of its covenants under this Paragraph
(unless caused by Landlord, its
28
employees, agents, contractors or invitees), which indemnification shall survive
the expiration or sooner termination of this Lease.
(d) Landlord agrees to indemnify, defend and hold Tenant harmless from and
against any and all liabilities, damages, claims, losses, judgments, causes of
action, costs and expenses (including the reasonable fees and expenses of
Tenant's counsel and environmental consultants) which may be incurred by the
Tenant or threatened against Tenant relating to or arising out of any
misrepresentation by Landlord under this Paragraph or any breach by Landlord of
its covenants under this paragraph or in the event asbestos or Hazardous
Substances are in the Premises or in the Building (unless caused by Tenant, its
employees, agents, contractors or invitees), but only to the extent permitted by
Virginia law, which indemnification shall survive the expiration or sooner
termination of this Lease. If at any time applicable law permits Tenant to
indemnify third parties, or if Landlord is not related to the Virginia
Retirement System, the limitation on Landlord's indemnity shall no longer apply.
28. ESTOPPEL CERTIFICATE
Tenant shall from time to time, within 10 days of receiving a written
request from Landlord, execute and deliver a written statement to Landlord which
shall certify, among other things, the accuracy of the Lease document,
commencement, termination dates of the Lease, that the Lease is in full force
and effect, whether the Lease has been modified, whether either party is in
default under the Lease, and to other correct terms and facts covered by the
Lease. Failure by Tenant to deliver to Landlord such estoppel certificate
within twenty one (21) days after receipt of a request from Landlord shall
constitute a Default hereunder without any further notice of such Default from
Landlord.
29. CHANGES TO THE BUILDING
Tenant shall not be required to pay for any costs necessary for the
Building to comply with any laws, orders, or regulations which require
structural changes or improvements relating to the structural components of the
Premises or Building or life safety systems installed in the Building. However,
Tenant shall be solely responsible for the costs of its failure to comply with
any laws or regulations in connection with its Tenant improvements and in
connection with Tenant's use of the Premises.
30. LANDLORD'S REPRESENTATION
Landlord covenants and agrees that Landlord is the owner of the Building
and has the right and the authority to enter into this Lease and that, to the
best of Landlord's actual knowledge, as of the date hereof there are not any
known uncorrected violations of Law applicable to the Building or the use
thereof which would interfere with Tenant's use and enjoyment of the Premises
under the terms of this Lease, and that all necessary approvals, certificates,
licenses, allocations and similar matters with respect to the Premises and the
Building and the use of the Property (except those specifically relating to
Tenant's build-out of its Premises or the operation of its business in the
Premises, as to which Landlord offers no representation) have been obtained.
Landlord shall be solely responsible for the cost of Landlord's failure to
29
comply with the covenants and agreements contained herein except to the extent
that they are caused by actions of Tenant.
31. INSURANCE
(a) Tenant agrees to maintain in full force and effect at all times during
the Term and any extensions or renewals thereof, at its own expense, for the
protection of Landlord and Tenant, as their interests may appear, policies of
insurance with terms and coverages and carriers reasonably acceptable to
Landlord, issued by insurers authorized to do business in the state in which the
Building is located, which shall afford the following minimum coverages:
(i) Comprehensive general liability insurance, including coverage
for bodily injury and death, property damage and personal injury, in amounts not
less than $5,000,000 combined single limit.
(ii) Fire and extended coverage in amounts sufficient to cover the
full replacement cost of all of Tenant's fixtures, furniture, furnishings, trade
equipment and all other items of Tenant's property on the Premises.
(iii) Workmen's compensation insurance as required by applicable
law.
(iv) During any time period in which Tenant is performing any
construction or renovation work in the Building permitted by this Lease,
builder's risk insurance in amounts reasonably acceptable to Landlord.
Tenant shall deliver to Landlord prior to exercise of any right of access
to the Premises, and thereafter at least thirty (30) days prior to the
expiration thereof, certificates of insurance evidencing the above coverages,
which certificates shall name Tenant, Landlord, Landlord's agents and any
mortgagee whose name has been furnished to Tenant as additional named insureds.
All certificates shall expressly provide that such insurance coverage may not be
changed, cancelled or not renewed without at least thirty (30) days prior
written notice to Landlord, Tenant and all additional named insureds.
(b) In the event Tenant has not delivered to Landlord the certificate or
certificates evidencing such insurance, within the time periods required above,
and after notice to Tenant and expiration of any applicable cure period
(provided that no cure period shall extend beyond the expiration date of such
insurance policy or policies) Landlord may obtain such insurances on behalf of
Tenant. The cost for such policies shall be paid by Tenant to Landlord as
additional rent upon demand plus an administrative charge as determined by
Landlord.
(c) Landlord will maintain at all times during the Term of this Lease (i)
all risk insurance in an amount not less than the actual replacement cost,
exclusive of foundations and excavations, of the Building as calculated annually
according to the applicable insurance policies, and (ii) personal public
liability and property damage occurring in, on or about the Building and the
Property in an amount of at least $3,000,000 per occurrence for personal public
liability
30
coverage and $500,000 for property damage, and Tenant will be named as an
additional insured, as its interest may appear, on the liability policy.
32. COVENANTS AGAINST LIENS
Notwithstanding any other provisions of this Lease, Landlord and Tenant
expressly acknowledge and agree that the interest of Landlord in and to the
Building and the real estate on which it is located, or any part thereof,
including without limitation, the Premises, shall NOT be subject to liens for
any work, labor, services performed or materials supplied, or claimed to have
been performed or supplied, or any other lien cognizable under Chapter 713,
Florida Statutes (collectively herein "Liens"), by Tenant, or Tenant's
contractors, subcontractors, laborers and material suppliers supplying labor
and/or material for the Premises (collectively herein "Contractors"). Upon
the execution of this Lease, Tenant acknowledges that Landlord, at Landlord's
sole option and cost, may then or thereafter record among the Public Records
in the county in which the Building is located, this Lease or short form
thereof, or such other memorandum in form and substance satisfactory to
Landlord, in Landlord's sole discretion, for the purpose of insulating the
interest of Landlord from any and all such contractor's liens, without
affecting any provisions of this Lease. Tenant hereby acknowledges that
Landlord shall further be permitted to do or perform any act necessary or
appropriate, in Landlord's sole discretion, to prevent the filing of any lien
against the Premises or any part thereof. In addition to the foregoing and
not in lieu thereof, Tenant shall do all things necessary to prevent the
filing of any liens against the Premises or the interest of Landlord or the
interest of any mortgagees or holders of any deed of trust covering the
Premises or any ground or underlying lessors therein, if any, by reason of
any work, labor, services, or materials performed or supplied to Tenant, or
anyone holding the Premises, or any part thereof, by, through, or under
Tenant. If any such lien shall at any time be filed, Tenant shall cause the
same to be vacated and cancelled of record within thirty (30) days after the
date that Tenant receives notice of such lien. If any such lien shall be
filed notwithstanding the provisions of this subparagraph, then, in addition
to any other right or remedy of Landlord resulting from Tenant's default,
Landlord may, but shall not be obligated to, contest such lien or vacate or
release the same either by paying the amount claimed to be due or by
procuring the release of such lien by giving security or in such other manner
as may be prescribed by law. Tenant shall repay to Landlord, as additional
rent hereunder on demand, all sums disbursed or deposited by Landlord
pursuant to the foregoing provisions of this Paragraph, including Landlord's
costs and expenses and attorneys' fees incurred in connection therewith.
However, nothing contained herein shall imply a consent or agreement on the
part of Landlord or any mortgagee or holder of a deed of trust or any ground
or underlying lessors, if any, of the Premises to subject their respective
estates or interests to liability under any mechanics' or other lien law,
whether or not the performance or the furnishing of such work, labor,
services, or materials to Tenant or anyone holding the Premises, or any part
thereof, by, through or under Tenant, shall have been consented to by
Landlord and/or any of such parties.
33. INTENTIONALLY DELETED
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34. LANDLORD'S EXCULPATION
The liability of Landlord to Tenant for any default by Landlord under the
terms of this Lease shall be limited to an amount equal to the greater of (i) an
amount that would be realized on an execution sale of the interest of Landlord
in the Building or (ii) the Rent to be paid hereunder during the Term and
renewals of the Term, and neither Landlord, nor any party comprising Landlord,
shall be personally liable for any deficiency. Tenant may, at its option, seek
to satisfy judgments (plus interest) by execution against the Building, or to
offset the amount of the judgment plus interest against the Rent due hereunder,
until such judgment plus interest is satisfied, in the same manner in which
Tenant may offset under Paragraph 23 hereof. This clause shall not be deemed to
limit or deny any remedies which Tenant may have in the event of default by
Landlord hereunder which do not involve the personal liability of Landlord.
35. BROKERAGE
Tenant represents and warrants that it has retained ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of
Florida, Inc., as its exclusive broker and that it has dealt with no other
broker, agent or other person in connection with this transaction and that no
other broker, agent or other person brought about this transaction, on behalf of
Tenant. Tenant shall pay all commissions due ▇▇▇▇▇▇▇ & Wakefield of Florida,
Inc. Tenant agrees to indemnify, defend and hold Landlord harmless from and
against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having represented Tenant
with regard to this Lease transaction. The provisions of this paragraph shall
survive the termination of this Lease. Landlord agrees to indemnify, defend and
hold Tenant harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having represented Landlord with regard to this Lease transaction, to the extent
such indemnity is permitted by Virginia law, which indemnity shall survive the
expiration or termination of this Lease. If at any time in the future Landlord
is permitted by law to indemnify third parties, or if at any time Landlord is
not related to the Virginia Retirement System, the limitation on Landlord's
indemnity obligation shall no longer be in effect.
Landlord represents and warrants that it has retained KB Commercial Real
Estate Group, Inc. as its exclusive broker and that it has not dealt with any
other broker, agent or other person in connection with this transaction and that
no other broker, agent or other person, other than KB Commercial Real Estate
Group, Inc., brought about this transaction on behalf of Landlord. Landlord
shall pay all commissions due KB Commercial Real Estate Group.
36. FULL SERVICE LEASE; SEPARATE METERING
(a) This is a full service Lease. All building services and utilities are
included. In the calculation of Tenant's Pro Rata Share of increases in
Operating Expenses and Taxes, only those Operating Expenses and Taxes
attributable to the Building, Building common area (interior and exterior), and
parking area specifically designated for the use of the Building shall be
included in the computation of same. The Operating Costs and Taxes attributable
to any retail, food service entity, private club, etc. or the common areas
interior or exterior thereto shall not become the obligation of Tenant, unless
the retail food service entity or private club is operated within Tenant's
Premises.
32
(b) Tenant may elect by written notice to Landlord to contract and pay for
certain Operating Expenses on a direct basis. These expenses may include
security, electrical usage, and janitorial service. In the event Tenant elects
to pay the utility provider directly for any such services, Tenant shall
separately meter the Premises at Tenant's sole cost and expense. Landlord shall
not include any expenses paid by Tenant in the Operating Expenses.
37. BUILDING DIRECTORY
Tenant shall be provided with its pro-rata share within the existing
building directory space for Tenant. Names of all officers of Tenant shall be
included at no additional charge. Any changes or additions to the list of names
on the directory after the Lease execution date shall be paid for by Tenant.
38. OPTION TO RENEW
Tenant shall have two five-year options to renew its Lease for all or part
of the Premises upon nine (9) months prior written notice and provided that
Tenant is not in default beyond any applicable notice and cure periods when such
notice is given. The rental rate for each renewal term shall be at the then
current fair market rate in the Miami Airport/West Dade office market for the
Premises ("Fair Market Rent"). In determining Fair Market Rent, Landlord shall
consider all then applicable elements affecting the lease transaction,
including, but not limited to, the fact that Tenant may not require an
improvement allowance or rental abatement typical of a new tenant, that Landlord
shall not lose rent because of any marketing or construction time and that the
Fair Market Rent is being projected one year in advance. The recovering of the
floors and recovering or repainting of the walls used in the initial tenant
finishes shall also be considered in determining Fair Market Rent. Landlord and
Tenant shall negotiate the rental rate one (1) year prior to the expiration of
the then current term. If Landlord and Tenant cannot agree upon the rate within
thirty (30) days, then either party may refer the matter for resolution to the
American Arbitration Association, with each party equally sharing the costs
thereof. The American Arbitration Association shall be required to render its
opinion with regard to the then current Fair Market Rent for the Premises,
taking into consideration the factors set forth in this paragraph, within thirty
(30) days of said assignment. Tenant shall have at least fifteen (15) days in
which to exercise said option(s) after the Fair Market Rent has been agreed upon
or otherwise determined. If Tenant does not exercise its option to renew this
Lease as provided in this Paragraph 38, and the rental rate during the extension
term has been determined in accordance with the arbitration procedure set forth
above, Tenant shall be responsible for payment of the entire cost of the
arbitration proceedings.
For each option term, the Operating Expense Base Year and Tax Base Year
will be adjusted to reflect the then current base years that are being offered
to prospective tenants of the Building in the eleventh and sixteenth years,
respectively, of this Lease.
39. EXPANSION OPTION; RIGHT OF FIRST REFUSAL
(a) Tenant shall have a continuous right to lease any unencumbered space
in the Building throughout the Term of this Lease and any renewal thereof. The
rental rate and terms
33
and conditions for said space during the first two years of the Lease shall be
at Tenant's then current rental rate and under the same terms and conditions as
this Lease. Beginning on the second anniversary date of the Commencement Date
of this Lease, and thereafter, the rental rate and terms and conditions for said
space shall be at then current market terms. Tenant shall take any expansion
space "as is" (but broom clean and free of all equipment and trade fixtures of
the prior occupant) with the Tenant Improvement Allowance being prorated. For
example, if 9 years are left on this Lease, the Tenant Improvement Allowance for
expansion space would be $13.50. If 8 years are left on the Term, this Lease,
the Tenant Improvement Allowance for expansion space would be $12.00. The
commencement date for the term of any expansion space leased to Tenant pursuant
to this Paragraph 39(a) shall be sixty (60) days after Landlord provides
possession of said space to Tenant. The termination date for all expansion
space shall be coterminous with the termination date under this Lease.
(b) During the Term of this Lease, Tenant shall have the continuous right
of first refusal on all space in the Building. During the Term, Landlord shall,
prior to entering into any lease of space in the Building with any new tenant,
or an expansion of an existing tenant's space, first deliver to Tenant a copy of
the proposed lease, or a term sheet setting forth the relevant business terms
and conditions of the proposed lease or expansion. Tenant shall advise Landlord
in writing within five (5) business days after Tenant's receipt of such notice
whether Tenant desires to exercise its right of first refusal for such space.
If Tenant fails to deliver notice to Landlord exercising its right of first
refusal within the five (5) business day period, Tenant shall be deemed to have
waived its right of first refusal with respect to such space in the Building,
provided, however, that if such space again becomes available (or is not leased
to the offeror in question), Tenant's right of first refusal shall be
reinstated. If Tenant waives its right of first refusal with respect to such
space, or is deemed to have waived such right of first refusal, Landlord may
enter into a lease with the proposed tenant, or an amendment for the expansion
space with any existing tenant, on terms and conditions substantially the same
as in the proposed lease or the term sheet setting forth the relevant business
terms of the proposed lease or expansion. If the effective Base Rent under the
relevant business terms of the proposed lease or expansion, taking into
consideration all other economic factors, such as the tenant improvement
allowance to be provided, rent abatement, assumption of lease obligations, etc.,
changes by ten percent (10%) or more, then the proposed lease shall be deemed a
new proposal for which the right of first refusal shall again apply. The
termination date for all such right of first refusal space shall be co-terminus
with the termination date under this Lease, provided however, Landlord's capital
costs for the proposed transaction would be prorated for the remaining Term of
this Lease.
40. INTENTIONALLY DELETED
41. THIRD PARTY RE-LOCATION
Any third party tenants leasing less than 3,000 square feet in the Building
after execution of this Lease by Landlord and Tenant, will have a right of
relocation clause in their leases by which Landlord, upon six (6) month prior
written notice, will relocate those tenants in order that Tenant may occupy said
space. Landlord shall not be obligated to relocate any such tenants until
Tenant has signed an amendment to this Lease incorporating the space to be
vacated by the other tenant as part of the Premises. Said condition will exist
provided that Tenant has a minimum of
34
three (3) years left on the Term of this Lease and provided that Landlord has
comparable space within the Building in which to relocate said tenant. In the
event that Tenant has exercised an option or options to renew this Lease
pursuant to the provisions of Paragraph 38 herein, Landlord shall continue to
include the foregoing right of relocation clause in leases to third party
tenants leasing less than 3,000 square feet in the Building until such time as
Tenant has a minimum of three (3) years left on the extended Term of this Lease,
and provided that Landlord has comparable space in the Building in which to
locate said tenant.
In the event that Landlord relocates an existing tenant in order to
accommodate Tenant's need for additional space, Tenant will lease said space in
an "as is" condition and under the same terms and conditions of this Lease
except that the Rent for such additional space shall be at the greater of (a)
the then current market rental rate, or (b) the rent reserved for such space in
the lease to the tenant which is being relocated. No Tenant Improvement
Allowance will be given for said space.
42. DORAL CORPORATE PLAZA I (CITIBANK BUILDING)
Landlord will provide Tenant with a right of first offer if and when
Citibank vacates the Doral Corporate Plaza I facility located at ▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, the rental rate, terms and conditions to be negotiated
in good faith at that time based on current market value for said premises.
Tenant will have ninety (90) days from written notification to finalize said
negotiations. Landlord will allow Tenant to cancel this Lease, with no
cancellation penalty paid by Tenant, provided that Tenant signs and delivers to
Landlord a new ten (10) year lease in Doral Corporate Plaza I building, for not
less than 125% of the then current space that Tenant is occupying at the time
Tenant exercises its option, and otherwise under terms and conditions acceptable
to both parties.
43. CANCELLATION OPTION
On the fifth anniversary following the Commencement Date, Tenant shall have
the option to terminate this Lease as to all or a portion of the Premises by
giving Landlord twelve (12) months prior written notice and paying to Landlord a
lease cancellation fee. Said cancellation penalty shall be the unamortized
value of the Tenant Improvement Allowance paid by Landlord to Tenant, prorated
for the actual amount of space being cancelled by Tenant. These costs shall be
amortized based on a 10% interest imputed thereon. Said cancellation fee shall
be paid at the same time that Tenant exercises its option to cancel (twelve (12)
months prior to the fifth anniversary date of this Lease). Tenant's
cancellation of this Lease shall not become effective unless and until Tenant
has paid all Rent due to Landlord and performed all other covenants of Tenant
under this Lease which accrue through the cancellation date, and Tenant's
cancellation shall not become effective unless the cancellation fee is paid and
Tenant's cancellation notice is given within the time frame required above, time
expressly being of the essence.
44. EXCLUSIVE USE AND COMPATIBILITY
Throughout the Lease Term and any renewal thereof, Landlord will not lease
space in the Building to any banking entity that is in direct competition with
▇▇▇▇▇▇▇▇ Bank, N.A. Landlord
35
shall only lease space to tenants that are compatible with the tenant mix in
other Class A office buildings in the Miami Airport/West Dade office market.
With regard to the Subtenant, as long as Subtenant occupies the First Floor
Space, no other person or entity engaged in the business of operating a travel
agency may lease, sublease or occupy space in the Building. This shall not
preclude tenants from having their own travel departments, exclusively operated
internally.
45. RESTRICTIONS IMPOSED BY LANDLORD'S LEASE WITH CITIBANK, N.A.
Landlord shall use its reasonable efforts to relieve Tenant from any and
all encumbrances and restrictions that Landlord's lease with Citibank, N.A.
presently imposes upon Tenant, and further warrants that upon either the
termination, cancellation or expiration of said lease with Citibank, N.A.,
Landlord will relieve Tenant of any and all encumbrances and restrictions, and
shall not enter into any agreements with any other tenant that further imposes
any encumbrances or restrictions upon Tenant.
46. PARKING
Landlord shall provide parking availability at a ratio of four (4) spaces
per 1,000 rentable square feet for the Premises as well as any space leased at a
later date. Landlord shall provide fifteen (15) spaces immediately adjacent to
the main entrance of the Building that are designated for specific use by
Tenant's clientele. Landlord, at its sole cost and expense, shall provide to
Tenant and maintain within the existing covered parking area no less than seven
(7) spaces. All parking shall be at no cost to Tenant for the Term of this
Lease or any extension or renewal thereof.
47. EMERGENCY GENERATOR
Landlord will provide an area outside the Building upon which Tenant may
provide an emergency generator and aboveground fuel storage tank on site subject
to Dade County regulatory authorities approval and the approval of any other
applicable governmental authorities. Prior to installing the generator and
aboveground fuel storage tank, Tenant shall supply plans, drawings and other
materials reasonably requested by Landlord depicting the layout for such
equipment, for Landlord's approval, which approval shall not be unreasonably
withheld or delayed. Tenant shall maintain such emergency generator and
aboveground fuel storage tank in accordance with all governmental requirements,
as well as any reasonable rules and regulations imposed by Landlord. The cost
of said emergency generator and aboveground fuel storage tank shall be borne by
Tenant. Upon the expiration or earlier termination of this Lease, unless
otherwise agreed in writing by Landlord and Tenant, Tenant shall remove the
emergency generator and aboveground fuel storage tank, and shall provide
evidence reasonably satisfactory to Landlord that they have been removed in
accordance with all applicable governmental requirements.
36
48. FIBER OPTIC TELECOMMUNICATION CAPABILITIES
The Building presently has fiber optic access. Tenant, at Tenant's sole
cost and expense, may access said fiber optic telecommunication service.
49. STORAGE
Landlord will provide a maximum of approximately 2,000 useable square feet
of unsecured storage space at no cost to Tenant as long as there is unoccupied
space in the Building. Landlord shall not be responsible for any theft, loss or
damage to any property stored in the unsecured storage space, and Tenant's use
of the unsecured storage space shall be subject to such reasonable rules and
regulations as Landlord may impose from time to time. Landlord may change the
location of the storage space upon thirty (30) days prior notice to Tenant.
Tenant shall be required to move its property to the newly designated location
at Tenant's sole cost and expense.
50. SUBORDINATION; NON-DISTURBANCE
This Lease is subject and subordinate in all respects to any and all
Mortgages which may now or hereafter be placed on or effect the Property or the
Premises, and also to all renewals, modifications, consolidations and extensions
thereof. Although no instrument or act on the part of Tenant shall be necessary
to effectuate such subordination, Tenant shall, nevertheless, execute and
deliver, within ten (10) days after Landlord's request to Tenant, a
subordination, non-disturbance and attornment agreement in substantially the
form attached hereto as EXHIBIT "D" confirming such subordination as may be
desired by any holder of a Mortgage. If any Mortgage to which this Lease is
subject and subordinate is foreclosed, Tenant shall, on timely request, attorn
to the holder of the reversionary interest or the mortgagee in possession, as
the case may be. Notwithstanding the foregoing, provided the Tenant is not in
default of its obligations under this Lease, Tenant's possession of the Premises
shall not be disturbed by any mortgagee or purchaser at any foreclosure sale,
and any instrument confirming the foregoing subordination executed and delivered
on behalf of Tenant shall contain such a non-disturbance provision.
51. MISCELLANEOUS
(a) In all instances where either Landlord or Tenant is required to pay
any sum or do any act at a particular indicated time or within an indicated
period, it is understood that time is of the essence.
(b) Under no circumstances whatsoever shall Landlord or Tenant ever be
liable hereunder for consequential damages or special damages.
(c) Whenever a period of time is herein prescribed for action to be taken
by a party, such party shall not be liable or responsible for, and there shall
be excluded from the computation for any such period of time, any delays due to
Force Majeure events.
(d) Either Tenant or Landlord may record this Lease or a memorandum
thereof. At the request of either Landlord or Tenant, the other party shall
execute a Memorandum of Lease which may be recorded at the sole cost and expense
of the party requesting the Memorandum of
37
Lease. Landlord and Tenant agree to promptly execute and deliver to the other
an instrument in recordable form evidencing the termination of the Memorandum of
Lease promptly after the expiration or earlier termination of this Lease.
(e) In the event that litigation is instituted for any reason under this
Lease, the prevailing party shall be entitled to its reasonable legal fees and
costs, including costs and fees involved in any appellate proceedings.
(f) This Lease contains the entire agreement between the parties with
respect to the matters set forth herein. No additions, changes or
modifications, renewals or extensions hereof, shall be binding unless reduced to
writing and signed by Landlord and Tenant.
(g) The captions of the articles and paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with respect to any other Person, the parties hereto agreeing that they would
have entered into the remaining portion of this Lease notwithstanding the
omission of the portion or portions adjudged invalid, void, illegal, or
unenforceable with respect to such Person.
52. WAIVER OF JURY TRIAL
LANDLORD AND TENANT WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY TENANT AND LANDLORD,
AND TENANT AND LANDLORD ACKNOWLEDGE THAT NEITHER PARTY NOR ANY PERSON ACTING ON
THEIR BEHALF HAS MADE ANY REPRESENTATION OF FACT TO INDUCE THIS WAIVER OF TRIAL
BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT AND LANDLORD EACH
ACKNOWLEDGE THAT IT HAS READ AND UNDERSTANDS THE MEANING AND EFFECT OF THIS
WAIVER PROVISION.
IN WITNESS WHEREOF, Tenant and Landlord have caused this instrument to be
executed as of the date first above written, by their respective officers or
parties thereunto duly authorized.
▇▇▇▇▇▇▇▇ BANK, N.A. ("Tenant")
Witnesses:
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------- ------------------------
▇. ▇. ▇▇▇▇▇▇▇▇ Title: Senior Vice President
--------------------- ------------------------
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CORPORATE SEAL
SYSTEM REALTY TWELVE, INC.
Witnesses: ("Landlord")
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
-------------------- ---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attest: /s/ (Illegible)
-------------------- -----------------
CORPORATE SEAL
39
EXHIBIT "A-1"
(Floor plan(s) showing the first floor of the Premises cross-hatched)
/s/ JFS
----------------------
Tenant (initial)
/s/ JER
-----------------------
Landlord (initial)
Exhibit A-1
EXHIBIT "A-2"
(Site Plan showing the Building and parking areas)
___________________________
Tenant (initial)
___________________________
Landlord (initial)
Exhibit A-2
EXHIBIT "B"
RULES & REGULATIONS
1. DEFINITIONS: Wherever in these Rules and Regulations the word
"Tenant" is used, it shall be taken to apply to and include Tenant and its
agents, employees, invitees, licensees, subtenants, and contractors, and is to
be deemed of such number and gender as the circumstances require. The words
"Room" and "Premises" are to be taken to mean and include the space covered by
this Lease. The word "Landlord" shall be taken to include the employees and
agents of Landlord.
2. OPERATIONS: The streets, sidewalks, entrances, halls, passages,
elevators, stairways, and other common area provided by Landlord shall not be
obstructed by Tenant, or used by it for any other purpose than for ingress and
egress.
3. WASHROOMS: Toilet rooms, water closets, and other water apparatus
shall not be used for any purpose other than those for which they were
constructed.
4. INSURANCE REGULATIONS: Tenant shall not do anything in the Premises,
or bring or keep anything therein, which will in any way increase or tend to
increase the risk of fire or the rate of fire insurance, or which will conflict
with the regulations of the Fire Department or the Fire laws, or with the rules
and regulations of any fire insurance rating organization, or equivalent bodies,
or with any insurance policy on the Building or any part thereof, or with any
law, ordinance, rule, or regulation affecting the occupancy and use of the
Premises, now existing or hereafter enacted or promulgated by any public
authority or by any fire insurance rating organization, or any equivalent body.
5. GENERAL PROHIBITIONS: In order to ensure proper use and care of the
Premises, Tenant shall not:
a. Keep animals or birds in the Premises.
b. Use the Premises or any rooms therein as sleeping apartments.
c. Allow any sign, advertisement, or notice to be fixed to the
Building, inside or outside, without Landlord's written consent.
d. Make improper noises or disturbances of any kind; sing, play
or operate any musical instrument, radio or televisions without consent of
Landlord; or otherwise do anything which disturbs other tenants or tends to
injure the reputation of the Building.
e. ▇▇▇▇ or defile elevators, water closets, toilet rooms, walls,
windows, doors, or any other part of the Building.
Exhibit B, Page 1
f. Place anything on the outside of the Building, including roof
setbacks, window ledges, and other projections or drop anything from the
windows, stairways, or parapets, or place trash or other matter in the halls,
stairways, elevators, or light ▇▇▇▇▇ of the Building.
g. Cover or obstruct any window, skylight, doors, or transom that
admits light, except with Building standard narrow slot, horizontal venetian
blinds, without the prior written approval of Landlord.
h. Interfere with the heating or cooling apparatus.
i. Allow anyone but Landlord's employees or contractor to clean
the Premises or at Tenant's option, Tenant may employ its own cleaning
contractor subject to Landlord's reasonable rights of approval.
j. Leave the Premises without locking doors, stopping all office
machines, and extinguishing all lights except those required for security.
k. Install any shades, blinds, or awnings, except Building
standard window coverings, without consent of Landlord.
l. Use any electric heating device without consent of Landlord.
m. Install call boxes, or any kind of wire in or on the Premises
or the Building without Landlord's permission and direction.
n. Manufacture any commodity, any foods or beverages, whether by
vending or dispensing machines or otherwise, or alcoholic beverages, tobacco,
drugs, flowers, or other commodities or articles without the written consent of
Landlord except for consumption by Tenant.
o. Secure duplicate keys for Rooms or toilets, except from
Landlord, or change the locks of any doors to or in the Premises. Landlord
shall have access, however, to the Premises during all reasonable times and
emergency situations.
p. Give its employees or other persons permission to go upon the
roof of the Building without the written consent of Landlord.
q. Place door mats in public corridors without the consent of
Landlord.
r. Use passenger elevators for freight during normal business
hours as defined in the Lease.
s. Schedule, nor will Landlord receive, deliver or accept freight
for Tenant other than Monday through Friday, excluding holidays, between the
hours of 9:00 AM to 11:30 AM and 2:00 PM to 4:30 PM.
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t. Use, store, and dispose of toxic or dangerous substances
without proper prior approval of any governing authority and Landlord.
6. PUBLICITY: Landlord shall have the right to prohibit any advertising
by Tenant, which, in its opinion, tends to impair the reputation of the Building
or its desirability as a Building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
7. BUSINESS MACHINES: Business machines and mechanical equipment which
cause vibration, noise, cold or heat that may be transmitted to Building
structure, or to any leased space outside Premises shall be placed and
maintained by Tenant, at its sole cost and expense, in settings of cork, rubber,
or spring type vibration eliminators sufficient to absorb and prevent such
vibration, noise, cold or heat. No business machines or mechanical equipment
which exceed the existing floor load capacity of 80 pounds per square foot or
require unusually high amounts of electricity shall be used or installed in the
Premises without Landlord's prior written consent.
8. MOVEMENT OF EQUIPMENT: Landlord reserves the right to designate the
reasonable time and the method whereby freight, large office equipment,
furniture, safes, and other like articles may be brought into, moved, or removed
from the Building or Premises, and to designate the location for temporary
disposition of such items.
9. PUBLIC ENTRANCE: Landlord reserves the right to exclude the general
public from the Building upon such days and at such hours as in Landlord's
judgment will be for the best interest of the Building and its Tenants. At
Landlord's discretion, persons entering the office portion of the Building after
6:00 PM Monday through Friday, after 1:00 PM on Saturday, and at all times on
Sunday and holidays, and before 8:00 AM Monday through Saturday may be required
to sign the register maintained for that purpose.
10. REGULATION CHANGE: Landlord shall have the right to make such
additional rules and regulations as in the judgment of Landlord may from time to
time be needed for the safety, appearance, care, and cleanliness of the Building
and for the preservation of good order therein. Landlord shall not be
responsible to Tenant for any violation of rules and regulations by other
tenants.
11. CERTAIN RIGHTS RESERVED TO LANDLORD: Landlord reserves the following
rights, subject to the express provisions of the Lease:
a. To name or change the name of the Building and to change the
street address of the Building.
b. To install and maintain a sign or signs on the exterior or
interior of the Building.
c. To designate all sources furnishing ice, drinking water,
toilet supplies, shoe shining, mobile vending service, and like services used in
the Building.
______________________________
Tenant (initial)
______________________________
Landlord (initial)
3
EXHIBIT "D"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This instrument was prepared by
and after recording return to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement"), made this __________________, 199__, between [INSERT NAME OF
MORTGAGEE] a _________________________, whose address is [ADDRESS] (together
with its successors, assigns, and transferees "Lender") and ▇▇▇▇▇▇▇▇ BANK, N.A.,
a national banking association, whose address is
__________________________________ (together with its successors and assigns
"▇▇▇▇▇▇▇▇"):
R E C I T A L S:
1. Lender has made or is about to make a loan to System Realty
Twelve, Inc., a ______________ corporation ("Landlord") secured by a
mortgage, or other financing instrument to be recorded in the Official
Records of Dade County, Florida (the "Mortgage"), encumbering the real estate
known as "Doral Corporate Plaza" and more particularly legally described in
the Mortgage and on Exhibit "A" attached hereto and incorporated herein (the
"Office Complex"); and
▇.▇▇ Lease dated ___________, 1996, a memorandum of which is
recorded in
Exhibit D, Page 1
Official Records Books ________, page _______, of the public records of Dade
County, Florida (and as otherwise to be amended from time to time, the "Lease"),
Landlord did lease unto ▇▇▇▇▇▇▇▇, as tenant, those certain premises which
constitute a portion of the Office Complex and are more particularly described
in the Lease (the "Premises"); and
3.Lender and ▇▇▇▇▇▇▇▇ desire that the Lease shall not terminate but rather
shall remain in full force and effect in accordance with its terms if the
Mortgage is foreclosed or any transfer of the Premises is made in lieu thereof.
NOW THEREFORE, for valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Lender and ▇▇▇▇▇▇▇▇ agree as follows:
Provided ▇▇▇▇▇▇▇▇ is not in material default under the terms of the Lease beyond
applicable grace periods, then in the course of or following any exercise of
(a) any right or remedy under the Mortgage, (b) any foreclosure sale of the
Office Complex or any part thereof, or of the Premises or (c) any transfer of
the Office Complex or any part thereof, or of the Premises thereafter or in lieu
of foreclosure ((a)-(c), together with any similar events, a "Foreclosure
Event"):
▇▇▇▇▇▇▇▇'▇ rights arising out of the Lease, including without limitation,
its right of possession, shall not be affected or disturbed by Lender;
▇▇▇▇▇▇▇▇ shall not be named as a party defendant;
The Lease shall not be terminated or affected by any Foreclosure Event; and
The sale of the Office Complex or any part thereof, or of the Premises,
pursuant to any Foreclosure Event shall be made subject to the Lease and
the rights of ▇▇▇▇▇▇▇▇ thereunder.
Following a Foreclosure Event, ▇▇▇▇▇▇▇▇ shall attorn to Lender as its new
landlord and
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the Lease shall continue in full force and effect as a direct lease between
▇▇▇▇▇▇▇▇ and Lender. Notwithstanding the foregoing, Lender shall not be:
liable for any act or omission of any prior landlord (including Landlord),
unless such action was taken at the written direction of or with the
approval of Lender; or
subject to any offsets or defenses which ▇▇▇▇▇▇▇▇ might have against any
prior landlord (including Landlord) except those which arose out of such
landlord's default under the Lease and provided Lender has received any
notice of default and has an opportunity to cure all as required by and
pursuant to the terms of the Lease; or
bound by any rent ▇▇▇▇▇▇▇▇ paid for more than the then current month to any
prior landlord (including Landlord), unless Lender consents in writing to
such repayment; or
bound by any written modification of the Lease made after the date hereof
without Lender's consent.
Following a Foreclosure Event, Lender promptly shall give notice thereof to
▇▇▇▇▇▇▇▇, stating its current address and providing evidence of Lender's title
to the Premises.
The Lease is subject and subordinate to the lien of the Mortgage as though the
Mortgage had been executed and recorded prior in point of time to the execution
of the Lease. Notwithstanding the foregoing, subordination of the Lease to the
Mortgage should not be construed to constitute Tenant's consent or agreement to
any term, condition, or provision of the Mortgage or any related loan document
which purports to modify, alter or amend the Lease.
The foregoing provisions shall be self-operative and effective without the
execution of any further instrument on the part of either party hereto.
Any notice required or permitted to be given under this Agreement shall be in
writing and either shall be mailed by certified mail, postage prepaid, return
receipt requested, or sent by
3
overnight air courier service, or personally delivered to a representative of
the receiving party, or sent by telecopy (provided an identical notice is also
sent simultaneously by mail, overnight courier, or personal delivery as
otherwise provided in this paragraph). All such communications shall be mailed,
sent or delivered, addressed to the party for whom it is intended at its address
set forth below.
If to Tenant:
----------
----------
----------
4
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
S. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Lender: ________________________
________________________
________________________
With a copy to: ________________________
________________________
________________________
Any communication so addressed and mailed shall be deemed to be given on the
earliest of (a) when actually delivered, (b) on the first business day after
deposit with an overnight air courier service, or (c) on the third business day
after deposit in the United States mail, postage prepaid, in each case to the
address of the intended addressee, and any communication so delivered in person
shall be deemed to be given when receipted for by, or actually received by
Lender or ▇▇▇▇▇▇▇▇, as the case may be. If given by telecopy, a notice shall be
deemed given and received when the telecopy is transmitted to the party's
telecopy number specified above, and confirmation of complete receipt is
received by the transmitting party during normal business hours or on the next
business day if not confirmed during normal business hours, and an identical
notice is also sent simultaneously by mail, overnight courier, or personal
delivery as otherwise provided in this paragraph. Either party may designate a
change of address by written notice to the other by giving at least ten (10)
days' prior written notice of such change of address.
7.This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns, and without
limiting such, it is expressly understood that all references herein to Lender
shall be deemed to include also any subsequent
5
holder of the Mortgage and/or any other person succeeding in title to the
premises encumbered by the Mortgage, or any part thereof, pursuant to any
Foreclosure Event.
IN WITNESS WHEREOF, Lender and ▇▇▇▇▇▇▇▇ have executed this Agreement the
day and year first above written.
Signed, sealed and delivered LENDER:
in the presence of:
__________________________
_____________________________
Print Name:__________________
By:_______________________
_____________________________
Print Name:__________________ __________________________
Its:______________________
Date:_____________________
▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇ BANK, N.A., a
national banking association
______________________________
Print Name:___________________
______________________________ By:_______________________
Print Name:___________________ __________________________
Its:______________________
Date:_____________________
6
STATE OF __________)
)ss:
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this ___ day of
____________, 1996, by ________________________________, as
__________________________ of _________________________, a
______________________________, on behalf of the _________________________
[PLEASE CHECK ONE] _______ who is personally known to me or ______ who has
produced ___________________________________ as identification.
_________________________________________
Printed Name_____________________________
Notary Public, State and County aforesaid
My Commission Expires:___________________
Notary ID No.____________________________
(NOTARY SEAL)
STATE OF __________)
)ss:
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this ___ day of
____________, 1996, by ___________________________, as _____________President of
▇▇▇▇▇▇▇▇ Bank, N.A., a national banking association, on behalf of such Bank
[PLEASE CHECK ONE] ________ who is personally known to me or ___________ who has
produced ___________________________________ as identification.
_________________________________________
Printed Name_____________________________
Notary Public, State and County aforesaid
My Commission Expires:___________________
Notary ID No.____________________________
(NOTARY SEAL)
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EXHIBIT A TO SNDA
LEGAL DESCRIPTION
8
EXHIBIT E
JANITORIAL SERVICES
I. GENERAL OFFICE AND COMMON AREA:
A. DAILY
1. Gather all waste paper and place for disposal.
2. Replace liners as needed in wastebaskets if supplied
by building.
3. Empty, wash, and polish all ashtrays.
4. Empty, wash, and polish all cigarette urns and
replace sand or fluff from stock supplied by building
when needed.
5. Dust all office furniture.
6. Keep interior glass partitions free of fingerprints.
7. Dust counters and file cabinet tops.
8. Dust all other edges and flat surfaces within reach.
9. Clean and sanitize telephones.
10. Remove fingerprints from light switches and doors.
11. Clean and polish all drinking fountains.
12. Sweep and/or dust mop, and damp mop hard floor
surfaces.
13. Vacuum clean all carpeted areas after removing all
paper clips, rubber bands and other debris. Traffic
areas nightly, wall to wall weekly or as needed.
14. Properly arrange furniture in offices.
15. Clean office directory.
16. Keep custodial closet clean and orderly.
17. Turn off all lights except for emergency lighting.
18. Check doors and lock upon completion of work.
19. Report any occurrence that may be out of the ordinary.
20. Comply with all security regulations and personnel
logs.
21. Remove trash from building and carry to dumpster daily.
B. WEEKLY
1. High dust all horizontal surfaces to hand height,
including partition glass
Exhibit E - 1
▇▇▇▇▇, ledges, moldings, shelves, picture frames and
window ▇▇▇▇▇.
2. Wipe clean and polish all metal and bright work.
3. Damp mop and polish all resilient flooring in public
corridors and elevator lobbies; more often if
necessary.
4. Dust in place all picture frames, charts, graphs, and
similar wall hangings.
5. Spot clean all wall marks.
C. MONTHLY
1. Clean and polish door kickplates and thresholds.
2. Dust all high partitions and ledges.
3. Dust interior of fire extinguisher boxes and fire
alarms.
4. Wash and polish all resilient floors.
D. QUARTERLY
1. Vacuum all ventilating and air conditioning louvers,
high moldings, and other areas not reached in nightly
or weekly cleaning.
II. RESTROOMS
A. DAILY
1. Remove all trash from all trash containers.
2. Clean and polish all stainless steel dispensers.
3. Empty, clean, polish and disinfect all sanitary
disposal receptacles.
4. Fill all dispensers utilizing building stock of toilet
paper, hand towels, hand soap, sanitary napkins,
waxed bags and liners.
5. Clean and sanitize all fixtures and fittings.
6. Clean and polish the mirror.
7. Clean and polish the vanity surface.
8. Clean and sanitize all toilets, toilet seats and
leave the toilet seats in the up position.
9. Clean and sanitize the entire urinal, especially the
underside.
10. Sweep, damp mop and disinfect the floor.
B. NIGHTLY
1. Dust, clean and wash where necessary all partitions,
tile walls, dispensers and receptacles, and enamel
surfaces from trim to floor as required.
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2. Provide materials and fill tissue holders, towel,
sanitary napkin, and soap dispensers.
C. WEEKLY
1. Spot wash walls, partitions and doors.
2. Dust top of partitions, hinges and brackets.
D. MONTHLY
Machine scrub restroom floors; apply floor finishing where
applicable; buff where applicable.
E. QUARTERLY
1. Vacuum clean air vents and returns.
2. Scrub and rinse floors.
III. ELEVATORS
Do not clean in elevators.
IV. GLASS
DAILY
1. Wash and squeegee-clean all entrance door glass.
B. QUARTERLY
1. Wash and squeegee all interior partitions glass.
V. RESILIENT FLOORS
DAILY
1. Dust mop and spot mop and remove gum and other foreign
matter when necessary.
VI. OTHER AREAS OF THE BUILDING
ENTRANCE LOBBY
1. Entrance lobby to be buffed nightly.
VII. MARBLE LOBBY
A. DAILY
1. Dust mop.
3
2. Mop with a neutral cleaner.
3. Buff with a high speed machine.
B. QUARTERLY
1. Stone glow entire marble lobby floor.
4
VIII. EXTERIOR WINDOWS (SEMI-ANNUALLY)
Wash and squeegee dry interior and exterior surfaces of
building windows.
5