LEASE AGREEMENT (CYPRESS POINT BUSINESS PARK)
Exhibit 10.23
LEASE AGREEMENT
(CYPRESS POINT BUSINESS PARK)
(CYPRESS POINT BUSINESS PARK)
THIS LEASE AGREEMENT (the “Lease”), made as of this 24th day of August, 2000,
between HGL PROPERTIES L.P., LTD., a Florida limited partnership (the “Landlord”) with its place of
business at 0000 Xxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, and ALLIANCE MORTGAGE
COMPANY, a Florida corporation (the “Tenant”) with its place of business at 0000 Xxxxxxx Xxx,
Xxxxxxxxxxxx, Xxxxxxx 00000.
W I T N E S E T H:
The Landlord hereby leases and rents unto the Tenant and the Tenant hereby hires and
takes from the Landlord the “Leased Premises” (as defined below), to wit:
Space designated as Suites 106 and 107, comprising approximately 8,850 square feet, as
depicted on Exhibit A attached hereto (the “Leased Premises”) and located at 0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, on the real property more particularly described on Exhibit B
attached hereto (the “Property”), being a part of the building designated as “Building 8201” (the
“Building”), said Building, Property and any other building, improvements and facilities located
upon the Property forming a part of the Phase I complex and related facilities (the “Project”)
owned by the Landlord and being a part of the entire business park known as Cypress Point Business
Park at Cypress Plaza (the “Park”).
1. Upon the terms and conditions hereof, Tenant agrees to lease and hold the Leased Premises
from Landlord and Landlord agrees to lease the Leased Premises to Tenant for a term of fifty-eight
(58) months beginning on the “Commencement Date” (as defined in Paragraph 4 below).
2. Rents.
(a) Base Rent. Beginning on the Commencement Date and for the first twelve (12) months
of this Lease, Tenant shall pay a monthly base rent of $ 1 plus applicable Florida sales
tax of $ 2 for a monthly total of $ 3. Thereafter, the base rent shall be
increased annually by 4
| 1 | SEE ADDENDUM | |
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| 3 | SEE ADDENDUM |
per cent (4%) per annum, to take effect at each anniversary date of this
Lease. Such rent shall be paid in lawful money of the United States monthly, in advance and without
notice, set off, deduction or demand, to Landlord at Landlord’s notice address set forth in this
Lease.
(b) Additional Rent and Late Charges. Any and all amounts required to be paid by
Tenant hereunder except base rent and any charges or expenses incurred by Landlord on behalf
of Tenant under the terms of this Lease shall be deemed to be additional rent payable as rent
reserved hereunder (the “additional rent”).
In order to defray the additional expenses involved in collecting and handling delinquent
payments, Tenant shall pay on demand in addition to any base rent or additional rent due hereunder,
a late charge equal to the greater of five per cent (5%) of the base monthly rent or Fifty and
No/100 Dollars ($50.00) when any installment of rent is past due more than fifteen (15) days after
the due date thereof. Tenant acknowledges that this charge is made to compensate Landlord for
additional costs incurred by Landlord as a result of Tenant’s failure to pay when due, and is not a
payment for extension of the rent due date. The failure of Landlord to insist upon the payment of
late charges, whether isolated or repeated, shall not be deemed a waiver of Landlord’s right to
collect such charge for any future delinquencies.
In the event that this Lease either commences or terminates on a day other than the first or
last day of a month, then Tenant shall pay, in advance, base rent for the pro rata portion of said
partial month.
(c) Payment of Operating Costs. In each lease year, in addition to the rentals
specified in Paragraph 2 hereof, and as further additional rent, Tenant will pay to Landlord
on the
first day of each month Tenant’s pro rata share (for purposes of this Lease, the term “pro
rata share”
shall be equal to the square footage of the Leased Premises as set forth on Page 1 hereof
divided by
the total leasable square footage of Building 8201 and 8211 and is initially agreed to be 13%
of the
total Operating Costs) of the estimated annual Operating Costs (as hereinafter defined) of the
Project
and the common facilities and services of the Park. Based upon Landlord’s most recent
estimation
of the annual Operating Costs, Tenant’s initial share of such costs for calendar year 2000
will equal
$ 5 per square foot, or $ 6 per month, plus applicable Florida Sales tax
of $ 7, for a monthly total of $ 8. This figure shall be adjusted not less
frequently than annually, on a
| 4 | SEE ADDENDUM | |
| 5 | SEE ADDENDUM | |
| 6 | SEE ADDENDUM | |
| 7 | SEE ADDENDUM | |
| 8 | SEE ADDENDUM |
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calendar year basis, based upon Landlord’s reasonable estimate of costs for the next ensuing
year.
(d) “Operating Costs” Defined. For purposes of this paragraph, “Operating Costs” shall
mean the total cost and expenses actually incurred by Landlord, whether directly, indirectly, or
through an owners’ association, in connection with the operation, maintenance and repair of the
Project and the common facilities and services of the Park, including, without limitation: (i) ad
valorem and real estate taxes and assessments made against the Project; (ii) gardening and
landscaping; (iii) the cost of Landlord’s public liability insurance, property damage insurance,
fire with extended coverage insurance, rent loss insurance,
unemployment insurance, workers compensation insurance and such other premiums for insurance
paid by Landlord from time to time;
(iv) all Project repairs except those which are the Landlord’s specific monetary obligation
pursuant
to Paragraph 9(c) hereof; (v) line painting, bumpering, resurfacing and recurbing any portion of
the
Project, regardless of the cause necessitating the need thereof; (vi) lighting for common areas;
(vii) electricity for common areas; (viii) security expenses, if any; (ix) removal of trash, rubbish,
garbage
and other refuse from the common areas; (x) rental on machinery or equipment used in such
maintenance; (xi) the cost of personnel to implement such services, to direct parking and to police
or secure the common areas; (xii) property management fees and expenses (it being expressly
understood that Landlord may, but is not required to retain or subcontract the property management
to one of its subsidiary, parent or sister companies) provided same do not exceed five percent (5%)
of gross receipts as applicable to the Leased Premises for the accounting period; (xiii) the costs,
including interest amortized over its useful life, of any capital improvement made to the Project
by
Landlord after the date of this Lease which is required under any governmental law or regulation
that
was not applicable to the Project at the time it was constructed; (xiv) the cost, including
interest,
amortized over its useful life, of the installation of any device or other equipment which improves
the operating efficiency of any system within the Leased Premises or of the Project and thereby
reduces Operating Costs of the Leased Premises; (xv) all other expenses which would generally be
regarded as operation or maintenance expenses which would reasonably be amortized over a period
not to exceed five (5) years; and (xvi) all real property taxes and special assessments, including
dues
and assessments by means of deed restrictions and/or currently existing owners associations or
their
successors, which accrue against the Project during the term of this lease.
The term “Operating Costs” specifically excludes the following: (i) repairs specifically
excluded by Paragraph 9(c) hereof; (ii) repairs, restoration or other work occasioned by fire,
wind, the elements, or other casualties; (iii) income and franchise taxes of Landlord; (iv)
expenses incurred in the procurement of Tenants, including, without limitation, legal fees and
brokerage commissions;
(v) leasing commissions, advertising expenses and expenses for renovating space for new Tenants;
(vi) interest or principal payments on any mortgage or other indebtedness of Landlord except
as specified above; (vii) any depreciation allowance or expense; (viii) Operating Costs which are
otherwise the responsibility of Tenant; (ix) expenses which are properly allocable to a specific
building in the Project other than the Building; and (x) expenses for services furnished to other
tenants that are beyond those that apply to all tenants of the Project generally. Except for the
Landlord’s specific monetary obligations to repair and maintain the Leased Premises as set forth in
Paragraph 9(c) and the exclusions from the definition of the term “Operating Costs” set forth
above,
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all of Landlord’s expenses and costs associated with the operation, management, repairs or
maintenance of the Project shall be included as Operating Costs, it being the intent of the parties
that, except as herein qualified, this is a “triple net” lease for the Landlord (presuming one
hundred per cent (100%) occupancy).
(e) Statement of Payment of Expenses. If the term of this Lease begins after January 1
or ends prior to December 31, Tenant’s share of Operating Costs shown on the statement delivered at
the end of such year shall be reduced proportionately and paid as aforesaid. Within one hundred
twenty (120) days after the close of each calendar year, Landlord shall deliver to Tenant a
statement showing in reasonable detail Tenant’s share of the actual Operating Costs for the
immediately preceding calendar year. However, Landlord’s failure to make any adjustment
contemplated herein or to furnish a statement to Tenant shall not prejudice Landlord’s right to
collect the full amounts of additional rent payable hereunder or Tenant’s right to receive a refund
of any excess additional rent paid by Tenant. In the event Tenant’s share of such Operating Costs
is less than the amount previously anticipated and collected from Tenant by Landlord, Landlord
shall refund to Tenant within thirty (30) days after delivery of the statement the difference
between Tenant’s estimated and actual share of Operating Costs. Tenant’s share of Operating Costs
scheduled for the current calendar year shall be reduced proportionately or, in the event this
Lease has terminated, any excess shall be applied to sums owed to Landlord, and if none, then
remitted to Tenant within ten (10) days after the end of the one hundred twenty (120) day period.
In the event Tenant’s share of such Operating Costs is greater than the amount previously
anticipated and collected from Tenant by Landlord, Tenant shall pay to
Landlord the difference between the sums paid by Tenant and the sums actually due within ten
(10) days of Tenant’s receipt of a statement for said amount from Landlord. Tenant may at its
option at reasonable times and upon reasonable notice inspect Landlord’s books and records kept
with respect to Operating Costs. Any such inspection shall be made within one hundred eighty (180)
days after Landlord furnishes the statement required in this Paragraph and Tenant’s failure to
inspect the records and contest the Operating Costs within the one hundred eighty (180) day period
shall be deemed a waiver of Tenant’s right to contest the Operating Costs for the time period
covered by the statement.
3. Use and Possession.
(a) Use. It is understood that the Leased Premises are to be used for general office
uses only and no other use is permitted without the prior written consent of Landlord, which
consent
may be withheld in the absolute discretion of Landlord. Without qualifying the generality of
the
foregoing, it is specifically understood that no retail use of the Leased Premises shall be
permitted
and no hazardous substances, toxic wastes, asbestos, or petroleum products will be stored or
brought
into the Leased Premises except those necessary for the customary maintenance of the Leased
Premises provided same are used, stored and disposed of in accordance with all applicable
laws,
rules, ordinances and regulations.
(b) Possession. The Landlord agrees to use reasonable efforts to have the Leased
Premises completed and ready for possession on or before the Commencement Date barring
strikes,
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insurrection, acts of God and other casualties or unforeseen events beyond the control of the
Landlord. If Landlord is unable to give possession of the Leased Premises on the Commencement Date
by reason of the holding over of any prior Tenant or Tenants, incomplete construction, or for any
other reason excluding the unavailability of funds or financing, or unless the same shall result
from causes attributable to the Tenant, an abatement or diminution of the rent to be paid
hereunder, for the period of time Landlord is unable to give possession, shall be allowed Tenant
and the term of this Lease shall be extended beyond the agreed expiration date by the number of
days possession was delayed and said abatement of rent shall be the full extent of Landlord’s
liability to Tenant for any loss or damage to Tenant on account of said delay in obtaining
possession of the Leased Premises except Landlord’s gross negligence. If, and only if, the Leased
Premises have not been tendered within sixty (60) days after the Commencement Date specified in
this Lease, either Landlord or Tenant shall have the right to terminate this Lease after fifteen
(15) days’ written notice to the other party. Neither Landlord nor Tenant shall have the right to
terminate this Lease pursuant to this Paragraph 3 if Landlord tenders Possession of the Leased
Premises in tenantable condition as required by Paragraph 4 hereof at any time prior to Tenant’s
exercise of its termination right hereunder. In the event neither Landlord nor Tenant has
terminated the Lease as provided herein, the Commencement Date shall be extended by one (1) day for
each day beyond the stated Commencement Date delivery of possession has been delayed.
(c) Expiration of Term. At the expiration of the term hereof, Tenant shall deliver up
the Leased Premises in good repair and condition, ordinary wear and tear and damage resulting from
insured casualty only excepted.
4. Acceptance of Premises and Construction of Leasehold Improvements. Landlord shall,
at Tenant’s sole cost and expense unless otherwise agreed as set forth below, construct
improvements (the “Leasehold Improvements”) to the Leased Premises, in accordance with the plans
and specifications attached hereto as Exhibit C, and shall deliver possession of the Leased
Premises to Tenant on or before October 1, 2000 (the “Commencement Date”). If no work letter is
attached, Landlord shall have no obligation to construct the Leasehold Improvements except to
“Building Standard” finish, and Tenant shall (subject to the provisions of Paragraph 10) be
responsible for all improvements to the Leased Premises required to be made for Tenant’s occupancy
thereof. Tenant agrees to bear the cost of the Leasehold Improvements to the extent they exceed
$24.00 per square foot. The cost for the Leasehold Improvements and any modification thereto shall
be set forth in separate writings signed by Landlord and Tenant and dated the date hereof. Tenant
acknowledges that it has reviewed and accepted the drawings and specifications relative to the
Leasehold Improvements and that the Leased Premises, as improved, will be suitable for the uses
specified herein. Upon Tenant accepting possession of the Leased Premises after construction of the
Leasehold Improvements and subject to completion by Landlord of the punch list items identified by
Tenant in writing at a pre-possession walk-through of the Premises, Tenant shall be deemed to have
accepted the Leased Premises in its then “as is” condition.
5. Sales and Use Tax. Any sales, use or other tax, excluding State and/or Federal
Income Taxes imposed on Landlord, now or hereafter imposed on any payments required to be made
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under this Lease by the United States of America, the State, or any political subdivision thereof,
shall be paid monthly or annually as required as additional rent by the Tenant notwithstanding the
fact that such statute, ordinance or enactment imposing the same may endeavor to impose the tax on
the Landlord. Landlord hereby places Tenant on notice that the State of Florida currently imposes
sales tax on the base rent and additional rent due under this Lease from Tenant at the rate of six
and one-half per cent (6.5%), which tax is to be paid to Landlord as and when said payments of base
rent and additional rent are made.
6. Notices. For the purpose of notice or demand, the respective parties shall be
served in writing either by personal delivery, by guaranteed overnight delivery service or by
certified mail, return receipt requested, postage prepaid, addressed to the Tenant at the Leased
Premises with a copy addressed to the Tenant at its home office address if stated herein, or
addressed to the Landlord as shown on Page 1 hereof. Notice given by personal delivery or
guaranteed overnight delivery shall be deemed received when receipt is acknowledged or delivery
refused by the intended recipient, or on the third (3rd) business day following depositing of same
in the U.S. Mail in the case of notice by certified mail.
7. Ordinances and Regulations. The Tenant, at its sole expense, hereby covenants and
agrees to comply with all the rules and regulations of the Board of Fire Underwriters and Officers
or Boards of the City, County or State having jurisdiction over the Leased Premises, and with all
ordinances, regulations and governmental authorities wherein the Leased Premises are located, but
only insofar as any of such rules, ordinances and regulations pertain to the use Tenant is making
of the Leased Premises. Tenant shall not permit noxious or offensive odors to emanate from the
Leased Premises or otherwise engage in any activity or inactivity which would constitute a
nuisance. Tenant acknowledges that Landlord, its agents, representatives, and governmental
authorities, including, without limitation, Fire Marshals or Health Inspectors, may inspect the
Leased Premises at any reasonable time and, in the event that Tenant is deemed to be in
non-compliance with this Paragraph 7 or any governmental rules, regulations or ordinances, then
Tenant shall promptly remedy such non-compliance, paying all costs, expenses, fees or fines
associated therewith and, in the event Tenant does not so promptly remedy such non-compliance, then
Landlord may, but is under no obligation to, remedy the same and recover all expenses relating
thereto from Tenant unless such remedy is required as a result of deficiencies in the initial
construction of the Premises by Landlord or its contractors. In the event that Landlord’s premium
increases as a result of the nature or manner of the use or occupancy of the Leased Premises by the
Tenant, then Tenant shall pay such increases as additional rent hereunder.
8. Signage. The Tenant will not place any signs or other advertising matter or
materials on the exterior or on the interior where they can be seen from any exterior portion of
the Leased Premises or the Project without the prior written consent of the Landlord which consent
shall not be unreasonably withheld. Landlord may adopt from time to time uniform signage
requirements for the Project and construct such signage for the Project, in which event the costs
and expenses associated therewith shall be included in the Operating Costs.
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Notwithstanding anything to the contrary herein, Tenant is required, after receiving
Landlord’s prior written approval, to place a sign on the Leased Premises identifying the name of
Tenant’s business no later than forty-five (45) days following the date of occupancy.
9. Utilities and Maintenance.
(a) Utilities. Tenant shall pay the cost of water, gas, electricity, fuel, light,
heat, power and all other utilities or services furnished to the Leased Premises or used by Tenant
in conjunction therewith, whether such utility costs are determined by separate metering or are
billed by Landlord to Tenant as Tenant’s proportionate share of the utility costs. In addition,
Tenant shall pay its pro rata share of all charges for trash collection services or other sanitary services
rendered to the Leased Premises or used by Tenant in connection therewith, unless Tenant has contracted
directly for such services which will be billed directly to and paid by Tenant. Tenant hereby
agrees not to place hazardous or toxic substances or materials in the trash collection facilities,
wastewater or sewage systems provided by Landlord. In no event shall Landlord be liable for any
interruption or failure in the supply of any such utilities to the Leased Premises unless such interruption
is due solely to the willful act or gross negligence of Landlord.
If Tenant shall require water in the Leased Premises or other unmetered utility in excess of
that usually furnished or supplied to the Leased Premises when used as general office space, or
which will in any way increase the amount of water or utilities usually furnished, Tenant will
procure written approval from Landlord and make arrangements to pay periodically for the additional
direct expense involved, including
any installation costs thereof with said costs to be based on historic evidence of water usage
within the Building taking into consideration the uses made by its occupants.
(b) Tenant’s Obligations of Maintenance, Repair and Replacement. Subject to the
provisions of Paragraphs 13 and 18(b)(vii) hereof, Tenant shall, at Tenant’s sole cost and
expense, keep the Leased Premises and every part thereof in its presently existing condition excepting
only ordinary wear and tear, and in good condition and repair except as hereinafter provided with
respect to Landlord’s obligations. Tenant’s obligations shall include, without limitation, the
maintenance and repair of any doors, window casements, window panes, glazing, plumbing, pipes, electrical
wiring and conduits, and the heating and air conditioning system servicing the Leased Premises.
Tenant shall not be held responsible for any plumbing or water line repairs or maintenance beyond the
lines that specifically service Tenant’s Premises. Tenant shall obtain a service contract in form
and substance acceptable to Landlord for the repair and maintenance thereof of the heating and air
conditioning system servicing the Leased Premises. A duplicate copy of such contract and any
amendments or renewals thereof shall be delivered to Landlord within fifteen (15) days after Tenant
first obtains such contract, renewal or amendment. Tenant’s obligations shall further include the
replacement of (i) doors, window casements, window panes, glazing and (ii) plumbing, pipes,
electrical wiring and conduits which are related to Tenant improvements but not those which are
part of the base building. The cost of all repairs and replacements to the Leased Premises caused by the
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act, omission or negligence of Landlord, its agents, employees or contractor, shall be at
Landlord’s sole cost and expenses. If the Tenant refuses to properly carry out any maintenance,
repair and replacement as required pursuant to this Paragraph 9 to the reasonable satisfaction of
Landlord, Landlord may, but shall not be obligated, upon fifteen (15) days’ prior written notice
(except in the case of emergency) perform such maintenance or repair without being liable for any
loss or damage that may result to Tenant’s merchandise, fixtures or other property and Tenant shall
pay to the Landlord upon demand the Landlord’s costs relating to any such maintenance or repair.
The Tenant agrees that the making of any maintenance, repair and replacement by the Landlord
pursuant to this Paragraph 9 is not a re-entry or a breach of any covenant for quiet enjoyment
contained in this Lease.
(c) Landlord’s Obligations of Maintenance, Repair and Replacement. Subject to the
conditions set forth herein and the provisions of Paragraph 13 hereof and notwithstanding the
preceding Paragraph 9(b), Landlord shall repair and maintain only the roof, foundation and
load-bearing walls of the Building and the Leased Premises, exterior wall assemblies, exterior
weather walls, subfloor, structural columns and beams, any sprinkler system installed by Landlord
for the control of fire, and underground utility, sewer pipes, water lines, electric lines to the
Leased Premises (unless such utilities and pipes are required to be maintained by a third party)
plumbing, pipes, electrical wiring and conduits which are part of the base building, HVAC duct work
and replacement of air handlers unless such maintenance and repair are caused in part or in whole
by breaking or entering or the act, omission or negligence of Tenant, its agents, employees or
contractors, in which event the maintenance, repair or replacement shall be paid by Tenant. None of
such persons shall be permitted upon the roof of the Leased Premises or other buildings in the
Project for any reason without the Landlord’s prior written consent except in the case of an
emergency or unless access is required by Tenant to repair or maintain a system installed by Tenant
or on Tenant’s behalf on the roof provided prior notice is given to Landlord, said repair does not
involve disturbing a roof penetration already made or installing a new roof penetration and said
repair can be undertaken and completed without damaging the roof. Tenant hereby agrees to indemnify
Landlord for all damages suffered by Landlord as a result of Tenant’s use of the roof access rights
granted hereby and Landlord will have no obligations with respect to maintenance or repair of the
roof if Tenant, its agents, servants, employees or invitees enter upon the roof of the Leased
Premises without prior written consent as required hereby (except in an emergency) regardless of
whether such entry caused or necessitated the need for such repair or maintenance. Landlord shall
not be liable for any failure to make such repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need for such repairs or
maintenance is given to Landlord by Tenant. In the event Tenant fails to notify Landlord in
accordance herewith of any defective condition actually known to Tenant which Landlord is required
to repair hereunder and if Landlord does not have actual notice of the condition, Tenant
shall be responsible to Landlord for any extraordinary costs and expenses, as well as damages and
liabilities incurred by Landlord which are proximately caused by Tenant’s failure to so notify
Landlord. Except in the case of Landlord’s negligence, there shall be no abatement of rent and no
liability of Landlord
by reason of any injury to or interference with Tenant’s business arising from the making of any
repairs, alterations, or improvements in or to any portion of the Leased Premises or the Project or
in or to fixtures, appurtenances and equipment therein. Tenant waives the right to
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make repairs at
Landlord’s expense or to withhold rent for non-repair under any law, statute or ordinance now or
hereafter in effect except in the event of an emergency. Except for the repair, replacement and
maintenance obligations of the Landlord relating to the foundation, load-bearing walls, exterior
wall assemblies or a weather wall, sub-flooring, structural columns and beams, Landlord shall be
entitled to reimbursement for repair, maintenance and replacement made by Landlord unless such
expenses will be capitalized over a period of greater than five (5) years under GAAP, this Lease
otherwise constituting a “triple net” lease as between Tenant and Landlord.
10. Alterations. Tenant shall not make additions, alterations, changes or improvements
in or to the Leased Premises or any part thereof (excluding trade fixtures and typical office
partitions) without the prior written consent of Landlord, which consent shall not be unreasonably
withheld with respect to alterations, changes or improvements which do not affect the structure,
tenant improvements, or outward appearance of the Leased Premises. In the event that Landlord
consents to such additions, alterations, changes or improvements, then all additions, alterations,
changes or improvements shall be constructed at Tenant’s sole expense and shall, upon completion
thereof, become the property of Landlord; provided, however, Landlord may, at its option, require
Tenant, at Tenant’s sole cost and expense, to remove any such additions, alterations, changes or
improvements at the expiration or sooner termination of this Lease, and to repair any damages to
the Leased Premises caused by such removal provided Landlord has informed Tenant of such
requirement at the time of Landlord’s approval. Tenant hereby agrees to indemnify and defend
Landlord against, and shall keep the Leased Premises, Building, Project and Park free from all
mechanics’ liens and other such liens arising from any work performed, material furnished, or
obligations incurred by Tenant or at the direction of Tenant in connection with the Leased
Premises, and agrees to obtain the discharge of any lien which attaches as a result of such work
immediately after such lien attaches or payment for the labor or material is due. Notice is hereby
given to all Tenant’s contractors, subcontractors, materialmen or suppliers that Landlord is not
liable for any labor or materials furnished to Tenant on credit and no mechanics’ or other liens
shall attach to or affect Landlord’s interest in the Project, Building, Leased Premises, or Park as
a result thereof. Landlord hereby reserves the right at any time and from time to time, during the
term hereof, to make any additions, alterations, changes or improvements (including without
limitation, building additional stories) on, in, or to the Building and Project, and to build
additional structures adjoining thereto, provided same does not unreasonably interfere with
Tenant’s use of the Leased Premises.
Any of Tenant’s alterations, additions, changes 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 Project by the other tenants thereof.
11. Quiet Enjoyment. The Landlord covenants and agrees that Tenant, upon paying the
rent and performing the covenants herein required, shall and may peaceably and quietly hold and
enjoy the Leased Premises for the term aforesaid subject, nevertheless, to the terms of this Lease
and to any mortgages, leases, agreements and encumbrances to which this Lease is or may be made
subordinate. Tenant agrees to occupy and use the Leased Premises in such a manner so as to not
disturb the quiet enjoyment of any other part of the Project or Park by the other owners and
tenants thereof.
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12. Landlord’s Right to Inspect and Enter. The Landlord shall have the right upon
twelve (12) hours’ advance notice (which may be oral and may be given to a representative of Tenant
at the Leased Premises), at reasonable times during the term of this Lease (or at any time in the
event of an emergency), to enter the Leased Premises, Building and Project for the purpose of
examining or inspecting same and of making such repairs or alterations therein as the Landlord
shall deem necessary, and may, at any time within six (6) months immediately preceding the
expiration of the specified term, show the Leased Premises to others for the purpose of rental or
at any time show the Leased Premises, Building and Project to a prospective purchaser and may affix
to suitable parts of the Leased Premises, Building and Project a notice of Landlord’s intention to
lease or sell same.
13. Fire or Casualty. If the Leased Premises or Building are damaged by fire or other
casualty, Landlord will to the extent that the insurance proceeds available to Landlord are
adequate to fully pay the costs of such repair and restoration, promptly repair the damage and
restore the following portions of the Leased Premises and Building to their condition existing
immediately prior to the occurrence of the casualty: the roof, load-bearing demising walls,
foundation, utility infrastructure originally provided by Landlord, exterior wall assemblies,
exterior weather walls, subfloor, structural columns and beams, and the Leasehold Improvements
made by Landlord pursuant to Paragraph 4 of this Lease. If the reasonable time for completing any
such restoration or repair is longer than one hundred twenty (120) days, either party shall have
the option to terminate this Lease by giving notice of termination to the other party, which notice
shall be given within thirty (30) days after the date of the casualty or given by Tenant within
thirty (30) days after notice from Landlord that restoration will take longer than one hundred
twenty (120) days. In the event Landlord repairs and restores those portions of the Leased Premises
and Building which it is required to repair or restore pursuant to this Paragraph 13, Tenant shall
promptly make, at its sole cost and expense, all other repairs and replacements to the Leased
Premises which are required to restore the Leased Premises to substantially the same condition
existing immediately prior to such casualty. Notwithstanding anything to the contrary herein, if
the damage or destruction to the Leased Premises occurs within one (1) year of the expiration of
the then existing term of the Lease or if the damage or destruction to the Leased Premises or the
Building is so substantial that it has destroyed the Leased Premises or said Building to the extent
of fifty percent (50%) or more of the replacement cost of either the Leased Premises or the
Building, either Landlord or Tenant shall have the option to terminate the Lease by giving written
notice to the other within thirty (30) days after the date of the casualty. The base rent shall
xxxxx from the date of the casualty in proportion to the impairment of the use that Tenant can
reasonably make of the Leased Premises until the Leased Premises are restored or until the Lease is
terminated in accordance with this Paragraph 13, provided the insurance proceeds under Landlord’s
Rent Loss insurance policy will cover the amount of the abatement. The Landlord shall not be liable
for any inconvenience or interruption of the business of the Tenant occasioned by fire or other
casualty. Notwithstanding anything to the contrary in this Lease, Landlord shall have no obligation
to insure the Project, the Leased Premises, the Building, or any portions thereof or any contents,
property or other items located thereon or therein, either presently
or in the future.
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14. Condemnation. If any part of the Leased Premises or Building is taken by
eminent domain or condemnation or voluntarily transferred to such authority under the threat
thereof, Landlord may, at its sole option, terminate the Lease by giving written notice to Tenant
within forty-five (45) days after the taking, or if by reason of such taking of the Leased
Premises, Tenant’s operation on or access to the Leased Premises is substantially and materially
impaired, Tenant shall have the option to terminate this Lease by giving written notice to Landlord
within forty-five (45) days after the taking. After such taking and as of such date, the rent will
be adjusted in proportion to the impairment of the use that Tenant can reasonably make of the
balance of the Leased Premises. If the Leased Premises are damaged or if access to the Leased
Premises is impaired by reason of such taking and neither Landlord nor Tenant elects to terminate
this Lease as provided herein, Landlord will promptly rebuild or repair the damage to the extent
possible within the limitations of the available condemnation award. Tenant hereby waives any and
all rights it may have in all condemnation awards including, without limitation, loss of or damage
to its leasehold estate, and hereby assigns said claims to Landlord except such awards as are
separately and specifically awarded to Tenant for its separate personal property, moving expenses
and business damages.
15. Assignment and Sublease. Tenant may assign its interest in the Lease or sublet all
or any portion of the Leased Premises at any time to any party without Landlord’s consent, but such
assignment or subletting shall not relieve Tenant of its obligations hereunder. Tenant may assign
this Lease and shall be relieved of liability hereunder which accrues subsequent to the assignment
if the assignee assumes the obligations herein, has a favorable business reputation and has a GAAP
net worth equal to or greater than the Tenant immediately preceding the transfer. Tenant agrees to
obtain from a proposed assignee and furnish to Landlord all information reasonably required by
Landlord to make said determination. Tenant may not otherwise transfer, hypothecate, mortgage or
pledge its interest in the Lease without Landlord’s prior written consent which may be arbitrarily
withheld.
16. Holdover. Any holding over by the Tenant after the expiration of this Lease shall
be construed as a tenancy at sufferance month to month, upon the same terms and conditions of this
Lease, except at a base rent for such holdover period of one hundred twenty-five percent (125%) of
the base rent rate in effect for the month preceding such holdover. Acceptance by the Landlord of
rent after such termination shall not constitute a renewal.
17. Subordination. This Lease shall be subject and subordinated at all times to the
terms of any and all ground or underlying leases which now exist or may hereafter be executed
affecting the Leased Premises, Building, or the Project and to the liens of any and all mortgages
or deeds of trust in any amount or amounts whatsoever, whether now existing or hereafter created,
encumbering all or any combination of the Leased Premises, the Building or the Project, without the
necessity of having further instruments executed by the Tenant to effect such subordination. In
furtherance thereof, Tenant acknowledges that Landlord shall not have the authority without first
obtaining the written consent of any mortgagee, to consent to the cancellation or surrender of this
lease, or accept prepayment of rents, issues or profits under the lease, other than as provided for
in this Lease, nor to modify this Lease so as to shorten the term, decrease the rent, accelerate
the payment of rent, or
11
change the terms of any renewal option, and any such purported assignment, cancellation, surrender,
prepayment or modification made without the written consent of the mortgagee shall be void as
against the mortgagee. Notwithstanding the foregoing, Tenant has executed the Subordination,
Non-Disturbance and Attornment Agreement attached hereto as Exhibit D and covenants and agrees to
execute and deliver upon demand such further instruments, evidencing such subordination of this
Lease to such ground or underlying leases and to the lien of any and all such mortgages or deeds of
trust as may be reasonably requested by Landlord. If Tenant shall fail to execute and deliver such
instruments within fifteen (15) days of Landlord’s request, Landlord is hereby granted power of
attorney to execute such instruments in the name of Tenant as the act and deed of Tenant, and this
authorization is hereby declared to be coupled with an interest and is irrevocable during the term
of this Lease. In the event of termination, for any reason whatsoever, of any underlying lease, or
if the Leased Premises, Building or Project is sold to a purchaser, or any mortgage holder or
holder of deed of trust succeeds to ownership of the Leased Premises, Building or Project by reason
of a foreclosure, deed in lieu therefor or otherwise, then Tenant shall, at such successor’s
request, be and become the tenant of such underlying landlord, purchaser, mortgagee or holder of
deed of trust and shall attorn to same under this Lease.
18. Indemnity, Waiver and Insurance.
(a) (i) Tenant’s Indemnity. Tenant will indemnify, defend and save Landlord, its
employees, agents and contractors, harmless from and against any and all actions, damages,
liability and expenses in connection with the loss of life, personal injury, property damage, or
loss or damage of whatever nature, to third parties caused by or resulting from, or claimed to have
been caused by or to have resulted from, wholly or in part, any act, omission or negligence of
Tenant or anyone claiming under Tenant (including, but without limitation, Tenant’s subtenants,
concessionaires, agents, employees, servants and contractors). This indemnity, defense and hold
harmless agreement shall include indemnity against all costs, expenses and liabilities incurred in
connection with any such injury, loss or damage or any such claim, or any proceedings brought
thereon or the defense thereof including, without limitation, court costs and reasonable attorneys’
fees. If Tenant or anyone claiming under Tenant or the whole or any part of the property of Tenant
shall be injured, lost or damaged by theft, fire, water or steam or in any other way or manner
whether similar or dissimilar to the foregoing, no part of said injury, loss or damage is to be
borne by the Landlord or its agents unless caused by the negligence of Landlord. Tenant agrees
that Landlord shall not be liable to Tenant or anyone claiming under Tenant for any injury, loss,
or damage caused by or resulting from the act, omission, default or negligence of any persons
occupying adjoining premises or any other part of the Building or Project. In case the Landlord
shall, without fault on its part, be made a party to any litigation commenced by or against
Tenant, the Tenant shall protect, indemnify, and defend with counsel reasonably acceptable to
Landlord, and hold Landlord harmless and shall pay all costs, expenses and reasonable attorneys’ fees incurred or paid by Landlord in
connection with such litigation. Landlord agrees to give Tenant timely notice of any claims for
which indemnity will be sought. The obligations set forth in this paragraph shall survive the
expiration or sooner termination of the Lease.
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(ii) Landlord’s Indemnity. Landlord will indemnify, defend and save Tenant, its
employees, agents and contractors, harmless from and against any and all actions, damages,
liability and expenses in connection with the loss of life, personal injury, property damage, or
loss or damage of whatever nature, to third parties caused by or resulting from, or claimed to have
been caused by or to have resulted from, wholly or in part, any act, omission or negligence of
Landlord or anyone claiming under Landlord (including, but without limitation, Landlord’s
subtenants, concessionaires, agents, employees, servants and contractors). This indemnity, defense
and hold harmless agreement shall include indemnity against all costs, expenses and liabilities
incurred in connection with any such injury, loss or damage or any such claim, or any proceedings
brought thereon or the defense thereof including, without limitation, court costs and reasonable
attorneys’ fees. In case the Tenant shall, without fault on its part, be made a party to any
litigation commenced by or against Landlord, the Landlord shall protect, indemnify, and defend with
counsel reasonably acceptable to Tenant and hold Tenant harmless, and shall pay all costs, expenses
and reasonable attorneys’ fees incurred or paid by Tenant in connection with such litigation.
Tenant agrees to give Landlord timely notice of any claims for which indemnity will be sought. The
obligations set forth in this paragraph shall survive the expiration or sooner termination of the
Lease.
(b) Insurance Required of Tenant. Tenant will carry and maintain, at its sole cost and
expense, the following types of insurance with respect to the Leased Premises, in the amounts
specified and in the form hereinafter provided for:
(i) Comprehensive General Liability Insurance. Comprehensive general
liability insurance with a combined single limit of not less than $1,000,000.00 per occurrence
and $1,000,000.00 aggregate for bodily injury and property damage insuring against legal liability
of the insured with respect to said Leased Premises or arising out of the maintenance, use or
occupancy
thereof. Said insurance shall include, but not be limited to, independent contractor
liability, products
and completed operations coverage, and the Broad Form Comprehensive General Liability
Endorsement, including personal injury and advertising liability, contractual liability and
premises
medical payments.
(ii) Comprehensive Automobile Liability Insurance. Comprehensive
automobile liability insurance with a limit of not less than $500,000.00 per occurrence for
bodily
injury and property damage for both owned and non-owned vehicles.
(iii) Commercial Umbrella Liability Insurance. Tenant shall also carry and
maintain commercial umbrella liability insurance with a limit of not less than $1,000,000.00
per
occurrence.
(iv) Property Insurance. “All Risk” property insurance including plate glass coverage
on a replacement cost basis, with coverage equal to not less than ninety per cent (90%) of the full
replacement value of all personal property, decorations, trade fixtures, furnishings, equipment,
alterations, leasehold improvements and betterments made by Tenant, and all other contents located
or placed therein. In the event any casualty occurs, Tenant agrees to pay the
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difference between the insurance coverage required to be maintained by this subparagraph
18(b)(iv) and an insurance policy offering coverage of one hundred per cent (100%) of the full
replacement value of the property described in this subparagraph.
(v) Workers’ Compensation Insurance. If required by law, Workers’
Compensation Insurance covering the employees of Tenant.
(vi) Policy Form. All policies of insurance provided for herein shall be issued
by insurance companies with general policyholders’ rating of not less than “A” Class VI as
rated in the most current available “Best’s Insurance Reports” and licensed to do business in the State
of Florida and in good financial standing, and general liability and umbrella liability policies
shall be issued in the names of Landlord, Tenant and other such persons or firms as Landlord specifies
from time to time. Such policies shall be for the mutual and joint benefit and protection of
Landlord, Tenant and others specified in this Lease, and certificates of insurance enumerating the above
coverages and naming Landlord as an additional insured shall be delivered to the Landlord
within ten (10) days after delivery of possession of the Leased Premises to Tenant and thereafter
within ten (10) days prior to the expiration of the term of each such policy. As often as any such policy
shall expire or terminate, renewal or additional policies shall be procured and maintained by the
Tenant in like manner and amounts and to like extent. All certificates delivered to the Landlord must
contain a provision that Tenant’s Insurer will endeavor to give thirty (30) days’ notice in
writing in advance of any cancellation or lapse or the effective date or any material change in coverage.
All public liability, property damage and other casualty policies shall be written as primary
policies, not contributing with and not as excess coverage to that which the Landlord may carry.
The minimum limits of the liability policies of insurance set forth in subparagraphs 18(b)(i)
- (iii) above shall be subject to reasonable increase at any time, and from time to time provided
the total coverages required to be maintained by Tenant are either required by its mortgagee or are
not substantially greater than the limits generally required to be maintained by tenants occupying
similar space for comparable uses in the City of Jacksonville, Florida. Within thirty (30) days
after demand therefor by Landlord, Tenant shall furnish Landlord with evidence of Tenant’s
compliance with such demand.
Tenant agrees, at its own expense, to comply with all rules and regulations of the Fire
Insurance Rating Organization having jurisdiction of the Demised Premises and to comply with all
requirements imposed by Landlord’s insurance carrier, if any. If gas is used in the Demised
Premises, Tenant shall install, at its expense, both manual and automatic gas cut-off devices.
(vii) Failure of Tenant to Obtain Insurance. In the event that Tenant fails to timely procure and/or continuously
maintain any insurance required by this Section 18, or fails to carry insurance required by law or
governmental regulation, Landlord may (but without obligation to do so and without notice to
Tenant) at any time and from time to time, and in addition to all other remedies available to
Landlord, procure such insurance and pay the premiums therefor, in which event Tenant shall repay
the Landlord all sums so paid by Landlord, together with interest thereon
14
at the Default Rate, and any incidental costs or expenses incurred by Landlord in connection
therewith, within ten (10) days following Landlord’s written demand to Tenant for such payment.
(viii) Waiver of Liability. Neither Landlord nor Tenant shall be liable to each other
or to any insurance company insuring the other party (by way of subrogation or otherwise) for any
loss or damage to their respective properties including, without limitation, any building,
structure or other real or personal property, or any resulting loss of income, or losses under
workers’ compensation laws and benefits, even though such loss or damage might have been occasioned
by the negligence of the other party, its agents, employees or contractors. Tenant and Landlord
shall, upon obtaining any policies of insurance, give notice to the insurance carrier or carriers
that the foregoing mutual waiver is contained in this Lease.
19. Access and Operation. Tenant shall have access to the Leased Premises at all hours
of the day or night, provided however, Landlord shall have the right to adopt reasonable rules
and regulations governing access to the Project or Park after normal business hours and to assess
any costs associated with respect to such access as a part of Operating Costs. Tenant understands
and agrees that Landlord shall have no duty to provide security services to Tenant, the Building,
Project or the Leased Premises and Tenant shall look to the public police force, independent security
services or the like, for security protection. If Landlord, from time to time, provides
security services, the costs of such shall be borne by the tenants of the Project as a part of
Operating Costs.
20. Default.
(a) Events of Default. It is mutually agreed that in the event (i) Tenant shall fail
to make payment of base rent or additional rent herein reserved within fifteen (15) days after
written notice that same is delinquent (provided, however, Landlord shall not be required to give
notice of any monetary defaults more often than two (2) times in any twelve (12) month period and, in
such event, any subsequent failure to pay any sum when due shall, at Landlord’s option, be an
incurable Event of Default); or (ii) if Tenant shall fail to perform any of the material terms,
covenants, conditions, or provisions of this Lease other than Tenant’s requirement to pay base rent or
additional rent, and to cure such failure within thirty (30) days after written notice thereof from
Landlord, unless longer than thirty (30) days is required to reasonably cure such default and Tenant
commences to cure during said thirty (30) day period and thereafter diligently pursues such cure to
completion; or (iii) if Tenant shall file a voluntary petition under any bankruptcy, or insolvency law; or
(iv) an involuntary petition shall be filed against Tenant under any bankruptcy or insolvency law and
such proceeding is not dismissed within sixty (60) days of the commencement date; or (v) if a
receiver is appointed for Tenant’s property and such proceeding is not dismissed within sixty (60) days
of the commencement date; or (vi) if, whether voluntarily or involuntarily, Tenant takes advantage of any
debtor relief proceedings under any present or future law, whereby the base rent or additional rent
or any part thereof is, or is proposed to be, reduced or payment thereof deferred; or (vii) if
Tenant makes an assignment for benefit of creditors; or (viii) if the majority of Tenant’s personal
property located in the Leased Premises shall be levied upon or attached under process against
Tenant; or (ix) if Tenant abandons or discontinues its occupancy or use of the Leased
Premises and Tenant is
15
otherwise in default of any other of its obligations under this Lease; then, in any of said events,
default shall be deemed to occur hereunder and Landlord, at its option, may at once or at any time
thereafter, proceed according to one or more of the following courses of action, to the fullest
extent permitted by law.
(b) Landlord’s Right to Cure. Landlord may, with or without terminating this Lease,
immediately or at any time thereafter, reenter the Leased Premises and perform, correct or repair
any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy,
or abide by any term, condition, covenant, agreement, or obligation of Tenant under this Lease, and
Tenant shall fully reimburse and compensate Landlord on demand for all reasonable costs and
expenses incurred by Landlord in such performance, correction or repairing including, without
limitation, interest at the Default Rate.
(c) Demand for Possession. Landlord may, with or without terminating this Lease,
immediately or at any time thereafter, demand in writing that Tenant vacate the Leased Premises
and, unless otherwise requested by Landlord, thereupon Tenant shall vacate the Leased Premises and,
unless otherwise requested by Landlord, remove therefrom all property thereon belonging to or
placed in the Leased Premises by, at the direction of, or with the consent of Tenant, within three
(3) days of receipt by Tenant of such notice from Landlord (which notice may be given by U.S. mail,
certified mail, hand delivery, guaranteed overnight delivery service or, if Tenant is absent from
the Leased Premises, by posting), whereupon Landlord shall have the right to reenter and take
possession of the Leased Premises. Any such demand, reentry and taking possession of the Leased
Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of
this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of
this Lease by Landlord.
(d) Reletting. Landlord may, with or without terminating this Lease, immediately or at
any time thereafter, relet the Leased Premises or any part thereof for such term, at such rental
and upon such other terms and conditions as may be commercially reasonable, and Landlord may make
any alterations or repairs to the Leased Premises which it may deem necessary or proper to
facilitate such reletting; and Tenant shall pay all commercially reasonable costs of such reletting
including, but not limited to, the cost of any such alterations and repairs to the Leased Premises,
attorneys’ fees, and brokerage commissions; and if this Lease shall not have been terminated Tenant
shall continue to pay all base rent and additional rent and all other charges due under this Lease
up to and including the date of beginning of payment of rent by any subsequent tenant of part or
all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the
term of this Lease the difference, if any, between the rent and other charges collected from any
such subsequent tenant or tenants and the base rent and additional rent and other charges reserved
in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected
over the base rent and additional rent reserved herein except that such excess, if any, shall be
applied against the costs incurred by Landlord as a result of the defaults.
(e) Termination. Landlord may immediately, or at any time thereafter, terminate this
16
Lease, and this Lease shall be deemed to have been terminated upon
receipt by Tenant of written notice of such termination. Upon such termination, Landlord shall
recover from Tenant all damages Landlord has suffered or may suffer by reason of such termination
including, without limitation, unamortized sums expended by Landlord for construction of tenant
improvements, all arrearages in base rent and additional rent, costs, charges, and reimbursements,
the cost (including court costs and reasonable attorneys’ fees) of recovering possession of the
Leased Premises and the cost of any alteration of or repair to the Leased Premises which is
necessary or proper to prepare the same for reletting. In addition thereto, Landlord, at its
election, shall have and recover from Tenant either (i) an amount equal to the excess, if any, of
the total amount of all base rent and additional rent to be paid by Tenant for the remainder of the
term of this Lease over the then reasonable rental value of the Leased Premises for the remainder
of the term of this Lease, reduced to present value, or (ii) the base rent and additional rent and
other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of
subparagraph 20(d) hereinabove if this Lease were not terminated. Such election shall be made by
Landlord by serving written notice upon Tenant of its choice of one of the two immediately
preceding alternative recoveries within thirty (30) days of the notice of termination by Landlord
to Tenant as described in this Paragraph 20(e).
(f) Acceleration. Landlord may, by written notice to Tenant, accelerate all sums to
become due under this Lease for the remainder of the term in conjunction with the exercise of
any
remedy available to it in this Lease or otherwise.
If Landlord reenters the Leased Premises or terminates this Lease pursuant to any of the
provisions of this Lease, Tenant hereby waives all claims for damages which may be caused by such
reentry or termination by Landlord. No such reentry or termination shall be considered or construed
by Tenant to be a forcible entry.
(g) Attorneys’ Fees and Costs. In the event litigation arises out of or under the
terms of this Lease, the prevailing party shall be entitled to collect from the non-prevailing party
all costs incurred by the prevailing party including, without limitation, court costs, investigation
costs and reasonable attorneys’ fees, whether same are incurred before trial, at trial or on appeal.
(h) No Waiver by Landlord. Nothing herein contained shall be deemed to be a
waiver by Landlord of its statutory lien to rent, and the remedies, rights and privileges of
Landlord in the case of default of Tenant as set forth above shall not be exclusive and in addition
thereto Landlord may also exercise and enforce all its rights at law or in equity which it may
otherwise have as a result of Tenant’s default hereunder. Landlord is herein specifically granted all of the
rights of a secured creditor under the Uniform Commercial Code with respect to the Property in which
Landlord has been granted a security interest by Tenant.
21. Notice of Termination Not Required. Notwithstanding the provision of law or any
judicial decision to the contrary, the term hereof shall expire on the date herein provided without
notice being required from either party.
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22.
23. Hazardous Substances.
(a) Tenant covenants and agrees that it shall not cause or permit any Hazardous Substances
(the “Hazardous Substances” as hereinafter defined) to be installed, placed, stored, held, located,
released or disposed of in, on, at, or under the Leased Premises, the Building, or the Project
without Landlord’s prior written consent, which consent may be unreasonably, and in Landlord’s sole
discretion, withheld. Tenant further covenants and agrees to indemnify Landlord for any loss, cost,
damage, liability or expense (including without limitation, attorneys’ fees and other costs of
legal representation) that Landlord might ever incur because of Tenant’s failure to comply with the
provisions of the immediately preceding sentence. This indemnification is to survive the expiration
or other termination of this Lease. Based on investigations performed by third parties, the
Premises are not contaminated by Hazardous Substances as of the date of this Lease.
(b) For the purposes of this Paragraph 23, Hazardous Substances shall mean and include all
those substances, elements, materials or compounds that are included in any list of hazardous or
restricted substances adopted by the United States Environmental Protection Agency (the “EPA”) or
any other substance, element, material or compound defined or restricted as a hazardous, toxic,
radioactive or dangerous substance, material or waste by the EPA or by any other ordinance,
statute, law, code, or regulation of any federal, state or local governmental entity or any
agency, department or other subdivision thereof, whether now or later enacted, issued, or
promulgated.
24. Rules and Regulations. The rules and regulations pertaining to the Building
and Project attached hereto as Exhibit E and all reasonable rules and regulations which Landlord
may
18
hereafter from time to time adopt for the management of the Leased Premises, Building
or Project are hereby made a part of this Lease and shall during the term of this Agreement be in
all respects observed and performed by Tenant and Tenant’s employees, servants, agents, invitees
and guests. Tenant agrees to abide by, uphold and fully comply with the rules and regulations and
with such reasonable modifications thereof and additions thereto as Landlord may make. Tenant
further agrees that Landlord shall have the right to waive any or all such rules in the case of any
one or more tenants in the Building or Project without affecting Tenant’s obligations under this
Lease. Landlord shall not be responsible to Tenant for the failure of any other tenant to comply
with the rules and regulations.
25. Rubbish Removal. Tenant shall keep the Leased Premises clean, both inside and
outside, unless such rubbish removal is provided by the Landlord, and will remove all refuse from
the Leased Premises. Tenant shall not burn any materials or rubbish of any description upon the
Leased Premises. Tenant agrees to keep all accumulated rubbish in covered containers and to have
same removed regularly. In the event Tenant fails to keep the Leased Premises in proper condition,
Landlord may cause the same to be done for and on account of Tenant and Tenant hereby agrees to pay
the expense thereof, together with interest at the Default Rate and an administrative fee equal to
ten percent (10%), on demand as additional rent.
26. Waiver of Liability. Anything in this Lease to the contrary notwithstanding,
Tenant agrees that it shall look solely to the estate and interest of the Landlord in the Project
(subject to prior rights of any mortgagee of the Project) for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the event of any default or
breach by Landlord, with respect to any of the terms, covenants and conditions of this Lease to be
observed and/or performed by Landlord, and no other assets of Landlord shall be subject to levy,
execution or other procedures for the satisfaction of Tenant’s remedies.
27. Sale by Landlord. In the event of any transfer or transfers of Landlord’s interest
in the Property other than a transfer for security purposes only, the transferor shall be
automatically relieved of any and all obligations and liabilities on the part of Landlord accruing
from and after the date of such transfer provided the successor landlord assumes Landlord’s
obligations under this Lease arising as of the date of the transfer; provided, however, that any
funds in the hands of Landlord at the time of such transfer in which Tenant has an interest shall
be turned over to the successor landlord and any amounts then due and payable to Tenant by Landlord
under any provision of this Lease shall be paid to Tenant, it being intended hereby that the
covenants and obligations contained in this Lease on the part of Landlord shall, subject as
aforesaid, be binding on Landlord, its successors and assigns, only during and in respect of their
respective successive periods of ownership.
28. Estoppel Letters. Within fifteen (15) days of the request of Landlord, any lender
or prospective lender of the Building or Project, or at the request of any purchaser or prospective
purchaser of the Building or Project, Tenant shall deliver an estoppel certificate, attaching a
true and complete copy of this Lease, including all amendments relative thereto, and certifying
With
19
particularity, among other things, (i) when the last rent was paid; (ii) when the next rent
is due and in what amount; (iii) stating whether the Tenant has prepaid any rent and, if so, how
much; (iv) stating whether either the Landlord or the Tenant is in default under the Lease and, if
so, summarizing such default(s); and (v) stating whether Tenant or Landlord has any offsets or
claims against the other party and, if so, specifying with peculiarity the nature and amount of
such offset or claim. Landlord shall likewise deliver a similar estoppel certificate within fifteen
(15) days of the request of Tenant, any lender or prospective lender of Tenant, or assignee
approved by Landlord.
29. Late Charges and Default Interest. Any amount of base rent or additional rent not
paid when due hereunder shall earn interest from the date of delinquency at a rate equal to
the lesser of four (4) percentage points above the prime or “standard” rate of interest charged by Chase
Manhattan Bank, New York, New York, or the highest rate allowed by law (the “Default Rate”).
30. Intentionally Deleted.
31. Successors and Assigns. Subject to the provisions of Paragraphs 15 and 27 of this
Lease, this Lease shall bind and inure to the benefit of the successors, heirs, and assigns of the
parties hereto.
32. Relationship of the Parties. Nothing herein contained shall be deemed or construed
as creating the relationship of principal and agent or of partnership or joint venture between the
parties hereto; it being understood and agreed that the method of computing rent, any provision
contained herein, or any acts of the parties hereto shall not be deemed to create any relationship
between the parties other than that of Landlord and Tenant.
33. Entire Agreement. It is agreed between the parties that neither Landlord nor
Tenant nor any of their agents have made any statements, promises or agreements, verbally or in
writing, in conflict with the terms of this Lease. Any and all representations by either of the
parties or their agents made during negotiations prior to the execution of this Lease and which
representations are not contained in the provisions hereof shall not be binding upon either of the
parties hereto. It is further agreed that this Lease contains the entire agreement between the
parties, and no rights are to be conferred upon either party until this Lease has been executed by
Tenant and Landlord.
34. Construction of Language. Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held to include the plural 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.
35. Modification. No modification, alteration or amendment to this Lease shall be
binding unless in writing and executed by the parties hereto.
36. Broker’s Commission. Tenant covenants, represents, and warrants that Tenant has
had no dealings or negotiations with any Broker or Agent other than Xxxxxxx & Xxxxxxxxx of
20
Florida, Inc., in connection with the consummation of this Lease, and Tenant covenants and agrees
to pay, hold harmless and indemnify Landlord from and against any and all costs, expenses
(including reasonable attorneys’ fees before trial, at trial, and on appeal) or liability for any
compensation, commissions, or charges claimed through Tenant by any broker or agent, other than the
Broker set forth in this Paragraph 36 with respect to this Lease or the negotiation thereof.
Landlord agrees to pay, hold harmless and indemnify Tenant from and against all costs, expenses
(including reasonable attorneys’ fees before trial, at trial, and on appeal) or liability for any
compensation, commissions, or charges claimed through Landlord by any broker or agent with respect
to this Lease or the negotiation thereof.
37. Provisions Severable. If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to persons or circumstances
other than those to which it is held invalid or unenforceable shall not be affected thereby and
each term and provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
38. No Recording. This Lease shall not be recorded in the public records by either
party hereto but each party shall promptly execute a Memorandum upon request and either party may
cause the same to be recorded.
39. Law and Venue. This Lease shall be enforced in accordance with the laws of the
State of Florida. The agreed upon venue is Jacksonville, Xxxxx County, Florida.
40. Execution; Counterparts. This Lease may be executed in any number of counterparts,
each of which shall be deemed an original and any of which shall be deemed to be complete in itself
and may be introduced into evidence or used for any purpose without the production of the other
counterparts. No modification or amendment of this Lease shall be binding upon the parties unless
such modification or amendment is in writing and signed by Landlord and Tenant.
41. Authority. If Tenant executes this Lease as a corporation, each of the persons
executing this Lease on behalf of Tenant does hereby personally represent and warrant that Tenant
is a duly authorized and validly existing corporation, that Tenant is qualified to do business in
the State of Florida, that the corporation has full right and authority to enter into this Lease,
and that each person signing on behalf of the corporation is authorized to do so. If Tenant
executes this Lease as a partnership (whether limited or general), each of the persons executing
this Lease on behalf of Tenant does hereby personally represent and warrant that Tenant is a duly
formed and validly existing partnership, that, if required, the partnership is qualified to do
business in the State of Florida, that the partnership has full right and authority to enter into
this Lease, and that each person signing this Lease on behalf of the partnership is authorized to
do so. In the event any of the foregoing representations or warranties are false, all persons who
purportedly execute this Lease, by, or on behalf of the purported Tenant, shall be personally and
individually liable hereunder.
42. Force Majeure. If Landlord or Tenant shall be delayed in, hindered in or prevented
21
from the performance of any act required hereunder (other than performance requiring the
payment of a sum of money) by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws, regulations or actions, riots,
insurrection, the act, failure to act or default of the other party, war or other reason beyond
such party’s reasonable control (excluding the unavailability of funds or financing), then the
performance of such act shall be excused for the period of the delay and the period for the
performance of any such act as required herein shall be extended for a period equivalent to the
period of such delay.
43. State Required Disclosure. The following disclosure is required to be made by the
laws of the State of Florida:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be obtained from your county
public health unit.
IN WITNESS WHEREOF, Tenant and Landlord have caused this Lease to be duly executed
as of the date of this Lease, by their respective officers or parts thereunto duly authorized.
| LANDLORD: | ||||||
| Signed, sealed and delivered in the presence of: | HGL PROPERTIES L.P., LTD., a Florida limited partnership |
|||||
| By: | HGL PROPERTIES G.P., INC., a Florida corporation |
|||||
/s/
Xxxxx X. Xxxxxxxxxx |
By: | /s/ Xxxxxxx X. Xxxxx | ||||||
Xxxxx X. Xxxxxxxxxx
|
||||||||
| Vice President |
22
| TENANT: | ||||||||
| ALLIANCE MORTGAGE COMPANY, a Florida corporation |
||||||||
/s/ Xxxxx X. Xxxxxx |
By: | /s/
Xxxxxxx X. Xxxx, Xx.
Its: Senior Vice President |
||||||
/s/
Xxxxx D YerdenRobin D Yerden
|
||||||||
23
EXHIBIT A
FLOOR PLAN
EXHIBIT B
Phase II
Parcel 2
A PORTION OF THE XXXXXXX XXXXXXX XXXXX, SECTION 56, TOWNSHIP 3 SOUTH, RANGE 27 EAST,
XXXXX COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: FOR A POINT OF
REFERENCE, COMMENCE AT THE NORTHWEST CORNER OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS VOLUME
6485, PAGE 1641 OF THE CURRENT PUBLIC RECORDS OF SAID COUNTY, SAID POINT BEING THE
INTERSECTION OF THE EAST RIGHT OF WAY LINE OF FINANCIAL WAY (AN 80 FOOT RIGHT OF WAY); WITH
THE SOUTH LINE OF THOSE LANDS DESCRIBED IN DEED BOOK 503, PAGE 386 OF SAID PUBLIC
RECORDS; THENCE SOUTH 00°36'55" EAST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 87.06
FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS
OF 1140.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AND CONTINUING
ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 262.24 FEET, MAKING A CENTRAL ANGLE OF
13°10'48" AND HAVING
A CHORD BEARING OF SOUTH 05°58'29" WEST AND A
CHORD DISTANCE OF 261.66 FEET, TO A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE
TO THE SOUTHEAST AND HAVING A RADIUS OF 910.00 FEET; THENCE SOUTHWESTERLY ALONG THE
ARC OF SAID CURVE, AND CONTINUING ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF
356.42 FEET, MAKING A CENTRAL ANGLE OF 22°26'28" AND HAVING A CHORD BEARING OF SOUTH
01°20'39" WEST AND A CHORD DISTANCE OF 354.15 FEET, TO THE POINT OF TANGENCY OF SAID
CURVE; THENCE SOUTH 09°52'35" EAST, CONTINUING ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE
OF 13.55 FEET TO THE NORTH RIGHT OF WAY LINE OF CYPRESS PLAZA DRIVE (A VARIABLE WIDTH RIGHT OF
WAY) AND THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS
OF 30.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AND ALONG SAID NORTH RIGHT OF WAY
LINE, A DISTANCE OF 42.03 FEET, MAKING A CENTRAL ANGLE OF 80°16'24" AND HAVING A CHORD BEARING OF
SOUTH 50°00'47" EAST AND A CHORD DISTANCE OF 38.68 FEET, TO A POINT OF REVERSE
CURVATURE WITH A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 680.00 FEET; THENCE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AND CONTINUING ALONG SAID NORTH RIGHT OF WAY LINE, A
DISTANCE OF 319.23 FEET, MAKING A CENTRAL ANGLE OF 26°53'53" AND HAVING A CHORD
BEARING OF SOUTH 76° 42'02" EAST AND A CHORD DISTANCE OF 316.31 FEET, TO THE POINT OF
BEGINNING, SAID POINT LYING ON THE SOUTHERLY LINE OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS
VOLUME 9176, PAGE 2263 OF SAID PUBLIC RECORDS, AND BEING THE
POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE. NORTHWEST AND HAVING A
RADIUS OF 35.00 FEET; THENCE, ALONG SAID SOUTHERLY LINE OF LAST SAID LANDS, THE FOLLOWING
TEN (10) COURSES: NO. 1- NORTHEASTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF
49.56 FEET, MAKING A CENTRAL ANGLE OF 81°08'08" AND HAVING A CHORD BEARING OF
NORTH 76°10'50" EAST AND A CHORD DISTANCE OF 45.52
FEET, TO A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE
SOUTHEAST AND HAVING A RADIUS OF 200.00 FEET; NO. 2-NORTHEASTERLY, ALONG THE ARC OF SAID
CURVE, A DISTANCE OF 44.44 FEET, MAKING A CENTRAL ANGLE OF 12°43'52" AND HAVING A CHORD BEARING OF
NORTH 41°58'42" EAST AND A CHORD DISTANCE OF 44.35 FEET, TO A POINT OF COMPOUND CURVATURE WITH A
CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 700.00 FEET;
NO. 3-
NORTHEASTERLY, ALONG
THE ARC OF SAID CURVE, A DISTANCE OF 104.59 FEET, MAKING A CENTRAL ANGLE
OF 08°33'40" AND HAVING A CHORD BEARING OF NORTH 52°37'28" EAST AND A
CHORD DISTANCE OF 104.50 FEET, TO A POINT OF COMPOUND CURVATURE WITH A CURVE CONCAVE TO
THE SOUTHEAST AND HAVING A RADIUS OF 78.00 FEET; NO. 4- NORTHEASTERLY, ALONG
THE ARC OF SAID CURVE, A DISTANCE OF 71.14 FEET, MAKING A CENTRAL ANGLE OF 52°15'11"
AND HAVING A CHORD BEARING OF NORTH 83°01'54" EAST AND A CHORD DISTANCE OF 68.70 FEET TO
THE POINT OF TANGENCY OF SAID CURVE; NO. 5- SOUTH 70°50'31" EAST, A
DISTANCE OF. 81.88 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 460.00 FEET; NO. 6-SOUTHEASTERLY, ALONG THE ARC OF SAID
CURVE, A DISTANCE OF 110.44 FEET, MAKING A CENTRAL ANGLE OF 13°45'23" AND HAVING A
CHORD BEARING OF SOUTH 77°43'12" EAST, AND A CHORD DISTANCE OF 110.18 FEET TO
THE POINT OF TANGENCY OF SAID CURVE; NO. 7-SOUTH 84°35'54" EAST, A DISTANCE OF 38.09 FEET
TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 75.00.
FEET; NO. 8- SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 22.51 FEET, MAKING A CENTRAL ANGLE OF
17°11'58" AND HAVING A CHORD BEARING OF SOUTH 75°59'55" EAST AND A
CHORD DISTANCE OF 22.43 FEET TO THE POINT OF TANGENCY OF SAID CURVE; XX. 0 -
XXXXX 00x00'00" XXXX, A DISTANCE OF 215.69 FEET TO THE
POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 200.00 FEET; NO.
10- SOUTHEASTERLY, ALONG THE ARC
OF SAID CURVE, A DISTANCE OF 34.10
FEET, MAKING A CENTRAL ANGLE OF 09°46'05" AND HAVING A CHORD BEARING OF
SOUTH 72°16'58" EAST AND A CHORD DISTANCE OF 34.06 FEET; THENCE, DEPARTING FROM SAID
SOUTHERLY LINE, SOUTH 02°20'19" WEST, A DISTANCE OF 256.86 FEET TO A POINT ON THE
AFOREMENTIONED NORTH RIGHT OF WAY “LINE OF CYPRESS PLAZA DRIVE, SAID POINT LYING ON A
CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 910.00 FEET; THENCE
NORTHWESTERLY ALONG THE ARC OF SAID CURVE AND ALONG SAID NORTH RIGHT OF WAY LINE,
A DISTANCE OF 480.34 FEET, MAKING A CENTRAL ANGLE OF 30°14'36"
AND HAVING A CHORD BEARING OF NORTH 72°18'19" WEST AND A CHORD
DISTANCE OF 474.78 FEET TO THE POINT OF TANGENCY OF SAID CURVE; THENCE NORTH
57°ll'01" WEST, CONTINUING ALONG SAID NORTH RIGHT OF WAY LINE, A
DISTANCE OF 209.51 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTHWEST
AND HAVING A RADIUS OF 680.00 FEET; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID
CURVE AND CONTINUING ALONG SAID NORTH RIGHT OF WAY LINE, A DISTANCE OF 72.02 FEET, MAKING A
CENTRAL ANGLE OF 06°04'05" AND HAVING A CHORD BEARING OF NORTH 60°13'03" WEST AND A
CHORD DISTANCE OF 71.98 FEET, TO THE POINT OF BEGINNING; CONTAINING 166,041 SQUARE FEET, OR,
3.81 ACRES, MORE OR LESS.
EXHIBIT C
PLANS AND SPECIFICATIONS
| Plans prepared by The Stellar Group, dated Job No. . |
EXHIBIT D
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
AND ATTORNMENT AGREEMENT
THIS
AGREEMENT, made as of the
24th day of August, 2000, between FIRST
UNION NATIONAL BANK, a national banking association, whose address is 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, (hereinafter called “Mortgagee”), HGL PROPERTIES
L.P., LTD., a Florida corporation, whose address is 0000 Xxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxx 00000 (hereinafter called “Landlord”) and ALLIANCE MORTGAGE COMPANY, a Florida
corporation, whose address is 0000 Xxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter called
“Tenant”).
WITNESSETH:
WHEREAS, Mortgagee has made or is about to make a loan to Landlord secured by a mortgage
(hereinafter called the “Mortgage”) covering a parcel of land owned by Landlord and more
particularly described on Exhibit “A” attached hereto (hereinafter called the “Mortgaged
Property”); and
WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant, or
their predecessors in interest dated as of
August 24th, 2000, and amended, as follows:
NONE
(hereinafter collectively called the “Lease”), Landlord leased to Tenant a portion of the
Mortgaged Property (said portion being hereinafter called the “Leased Premises”); and
WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which
is hereby acknowledged; and
WHEREAS, Mortgagee is unwilling to make said loan to the Landlord unless the Lease
is subordinate to the lien of the Mortgage; and
WHEREAS, the Lease provides that the Lease shall become subject and subordinate to
the lien of a mortgage placed upon Landlord’s interest in the Leased Premises if and when a
non-disturbance agreement is entered into with respect to such mortgage; and
WHEREAS, the parties hereto desire to effect the subordination of the Lease to the
lien of the Mortgage and to provide for the non-disturbance of Tenant by Mortgagee.
NOW THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
| I. Mortgagee hereby consents to and approves the Lease. |
| 1. | Tenant covenants and agrees with Mortgagee that the Lease is hereby made and shall continue hereafter to be subject and subordinate to the lien of the Mortgage (as same may be modified and extended) subject to the provisions of this Agreement. | ||
| 2. | Tenant certifies that the Lease is presently in full force and effect. | ||
| 3. | Mortgagee agrees that so long as the Lease shall be in full force and effect and Tenant is not in default thereunder beyond any applicable cure period: |
| A. | Except as required by applicable law governing foreclosures and/or sales pursuant to power of sale, Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligation secured thereby. | ||
| B. | The possession by Tenant of the Leased Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise adversely affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed given to Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby. |
| 4. | Mortgagee hereby acknowledges and agrees that all fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant and installed in or on the Leased Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant and may, subject to the provisions of the Lease, be removed by Tenant at any time provided Tenant repairs any damage caused by such removal. In no event (including a default under the Lease or Mortgage) shall Mortgagee have any liens, rights or claims in Tenant’s fixtures and equipment whether or not all or any part thereof shall be deemed fixtures; and Mortgagee expressly waives all rights of levy, distraint, or execution with respect to said fixtures and equipment arising out of the Mortgage. |
2
| 5. | If Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as Tenant thereunder, and the then owner of the Mortgaged Property, as Landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event: |
| A. | Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the option periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as Landlord under the Lease, and | ||
| B. | If Tenant is not in default under the Lease beyond any applicable cure period, such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the option periods, if Tenant elects or has elected to exercise it options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform, provided, however, that Mortgagee or any successor or assignee of Mortgagee shall not (i) be bound by any prepayment of rent or additional rent, deposit, rental security, or any other sum paid to any prior landlord under the Lease including, without limitation, the Landlord, unless received and receipted for by Mortgagee or its successor or assignee; (ii) be personally liable under the Lease, and Mortgagee’s or its successor’s or assignee’s liability under the Lease shall be limited to the interest of Mortgagee or its successor or assignee in the Premises; (iii) be liable for any act or omission of any prior landlord under the Lease, including, without limitation, the Landlord, except for any continuing act or omission of which Mortgagee had notice and failed to cure; (iv) be subject to any offsets or defenses which Tenant may have against any prior landlord under the Lease, including Landlord, except for any offsets or defenses related to any continuing act or omission of which Mortgagee had notice and failed to cure; and (v) be bound by any amendment or modification of the Lease made in violation of this Agreement. |
| 6. | After notice is given to Tenant by Mortgagee that the rentals due under the Lease are to be paid to Mortgagee, Tenant shall pay to Mortgagee all rentals due to Landlord under the Lease. Landlord hereby expressly authorizes Tenant to make such payments to Mortgagee and hereby releases and discharges Tenant of and from any liability to Landlord on account of any such payments. |
3
| 7. | Tenant shall give Mortgagee written notice of any default by Landlord under the Lease. Mortgagee shall have the same period of time provided Landlord under the Lease within which to cure such default. | ||
| 8. | Landlord and Tenant shall not enter into any agreement that provides for a termination or surrender of the Lease (except as provided in the Lease), reduction in rent, or any other material modification of the Lease which affects the primary term of the Lease or makes the Landlord’s obligations thereunder more onerous, without the written consent of Mortgagee. | ||
| 9. | Tenant shall not pay an installment of rent more than thirty (30) days prior to the due date. | ||
| 10. | Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid (a) if to Mortgagee, at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, (b) if to Tenant, attention of the Director of Real Estate of Tenant, at the address of Tenant as hereinabove set forth, or at such other address as Tenant may designate by notice, or (c) if to Landlord, at the address of Landlord hereinabove set forth, or at such other address as Landlord may designate by notice. | ||
| 11. | This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns. | ||
| 12. | This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or canceled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought. | ||
| 13. | This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby. |
4
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
| WITNESSES: | “MORTGAGEE” | ||||||||||
| As to Mortgagee: | FIRST UNION NATIONAL
BANK, a national banking association |
||||||||||
| /s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxxxx X. Xxxxx | |||||||||
| Print: Xxxxx X. Xxxxxx | Xxxxxxxx X. Xxxxx | ||||||||||
| Its: Vice President | |||||||||||
/s/ [ILLEGIBLE]
|
|||||||||||
| As to Landlord: | “LANDLORD” | ||||||||||
| HGL PROPERTIES L.P., LTD., | |||||||||||
| a Florida limited partnership | |||||||||||
| By: | HGL PROPERTIES G.P.,
INC. a Florida corporation |
||||||||||
/s/ Xxxx X. Xxxxx
|
By: | /s/ Xxxxxxx X. Xxxxx | |||||||||
Print: Xxxx X. Xxxxx
|
Xxxxxxx X. Xxxxx | ||||||||||
| Vice President | |||||||||||
/s/ Xxxxx X. Xxxxxxxxxx
|
|||||||||||
| As to Tenant: | “TENANT” | ||||||||||
| ALLIANCE MORTGAGE COMPANY, | |||||||||||
| a Florida corporation | |||||||||||
| /s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxx, Xx. | |||||||||
| Print: Xxxxx X. Xxxxxx | Xxxxxxx X. Xxxx, Xx. | ||||||||||
| Its: Senior Vice President | |||||||||||
/s/ Xxxxx X. Xxxxxx
|
|||||||||||
5
STATE OF FLORIDA
|
) | |||
| ) | SS | |||
COUNTY OF XXXXX
|
) |
The
foregoing instrument was acknowledged before me this
l9th day of September, 2000,
by Xxxxxxxx X. Xxxxx, as
Vice President of FIRST UNION NATIONAL BANK, a national banking association, on
behalf of the association.
|
/s/ Xxxxx X. Xxxxxx
|
|
| NOTARY PUBLIC | ||
| State of Florida at Large | ||
| Commission # CC612747 | ||
| My Commission Expires: 1/12/01 | ||
| Personally Known þ | ||
| or Produced I.D. ______ | ||
| [check one of the above] | ||
| Type of Identification Produced | ||
STATE OF FLORIDA
|
) | |||
| ) | SS | |||
COUNTY OF XXXXX
|
) |
The foregoing instrument was acknowledged before me this 6 day of Sept., 2000,
by Xxxxxxx X. Xxxxx, as Vice President of HGL Properties G.P., Inc., a Florida corporation, as
general partner of HGL Properties L.P., Ltd., a Florida limited partnership, on behalf of
the
partnership.
|
/s/ Xxxxx X. Xxxxxx
|
|
| NOTARY PUBLIC | ||
| State of Florida at Large | ||
| Commission # ______________ | ||
| My Commission Expires: | ||
| Personally Known þ | ||
| or Produced I.D. ______ | ||
| [check one of the above] | ||
| Type of Identification Produced | ||
6
STATE OF FLORIDA
|
) | |||
| ) | SS | |||
COUNTY OF XXXXX
|
) |
The foregoing instrument was acknowledged before me this 24th day of August, 2000,
by XXXXXXX X. XXXX, XX. as Senior Vice President of ALLIANCE MORTGAGE COMPANY, a Florida corporation, on behalf of the company.
| /s/ Xxxxx X. Xxxxxx
|
||
| NOTARY PUBLIC | ||
| State of Florida | ||
| Commission # 851064 | ||
| My Commission Expires: |
| Personally Known o or Produced I.D. [check one of the above] |
 |
XXXXX X. XXXXXX My comm. exp. June 30, 2003 Comm. No. CC 851064 Bonded by Xxxxx Xxxxxx þ Personally Known o Other I.D. |
||
| Type of Identification Produced | ||||
7
EXHIBIT E
RULES AND REGULATIONS
1. Tenant, its officers, agents, servants, and employees shall not block or obstruct
any of the entries, passages, doors, hallways or stairways of the Building or Warehouse, or
place, empty or throw away any rubbish, litter, trash or material of any nature into such
areas, or permit such areas to be used at any time except for ingress or egress of Tenant, its
officers, agents, servants, employees, patrons, licensees, customers, visitors, or invitees.
2. The movement of furniture, equipment, machines, merchandise or materials within, into
or out of the Leased Premises shall be restricted to time, method and routing of movement as
reasonably determined by Landlord upon request from Tenant and Tenant shall assume all
liability and risk to Property, Leased Premises and Building with respect to such movement.
Tenant shall not move furniture, machines, equipment, merchandise or materials within, into or
out of the Building, Leased Premises or Warehouse facilities without having first obtained a
written permit from Landlord twenty-four (24) hours in advance. Safes, large files, electronic
data processing equipment, any other heavy equipment or machines shall be moved into Leased
Premises or Building only with Landlord’s written consent and placed where directed by
Landlord.
3. Landlord will not be responsible for lost or stolen personal property, equipment,
money or any article taken from Leased Premises, regardless of how or when loss occurs.
4. Tenant, its officers, agents, servants, and employees shall not install or operate any
refrigerating, heating or air conditioning apparatus or carry on any mechanical operation or
bring into Leased Premises any inflammable fluids or explosives without written permission of
Landlord.
5. Tenant, its officers, agents, servants or employees shall not use Leased Premises for
housing, lodging or sleeping purposes or for the cooking or preparation of food without the
prior written consent of Landlord.
6. Tenant, its officers, agents, servants, employees, patrons, licensees, customers,
visitors or invitees shall not bring into the Leased Premises or keep on Leased Premises any
fish, fowl, reptile, insect or animal, or any vehicle without the prior written consent of
Landlord. Wheelchairs are excepted.
7. No additional locks shall be placed on any door in Building without the prior written
consent of Landlord. Landlord will furnish two (2) keys to each lock on doors in the Leased
Premises and Landlord, upon request of Tenant, shall provide additional duplicate keys at
Tenant’s expense. Landlord may at all times keep a pass key to the Leased Premises. All keys
shall be returned to Landlord promptly upon termination of this Lease.
8. Tenant, its officers, agents, servants or employees shall do no painting or decorating in
Leased Premises, or xxxx, paint or cut into, nor in any way deface any part of Leased Premises or
Building without the prior written consent of Landlord. If Tenant desires signal, communication,
alarm or other utility or service connection installed or changed, such work shall be done at
expense of Tenant, with the approval and under the direction of Landlord.
9. Tenant, its officers, agents, servants and employees shall not permit the operation of any
musical or sound-producing instrument or device which may be heard outside Leased Premises, or
which may emanate electrical waves which will impair radio or television broadcasting or reception
from or in the Building.
10. Tenant, its officers, agents, servants and employees shall, before leaving Leased Premises
unattended, close and lock all doors and shut off all utilities; damage resulting from failure to
do so shall be paid by Tenant. Each tenant, before the closing of the day and leaving the said
Premises shall see that all doors are locked.
11. All plate and other glass now in Leased Premises or Building which is broken through
causes attributable to Tenant, its officers, agents, servants, employees, patrons, licensees,
customers, visitors, or invitees shall be replaced by and at the expense of Tenant under the
direction of Landlord.
12. Tenant shall give Landlord prompt notice of all accidents to or defects in air
conditioning equipment, plumbing, electric facilities or any part or appurtenance of Leased
Premises.
13. The plumbing facilities shall not be used for any other purpose than that for which they
are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of
any breakage, stoppage or damage resulting from a violation of this provision shall be borne by
Tenant, who shall, or whose officers, employees, agents, servants, patrons, customers, licensees,
visitors or invitees shall have caused it.
14. All electrical and mechanical contractors and/or technicians performing work for Tenant
within the Leased Premises, Building or garage facilities which will affect the Building envelope
shall be referred to Landlord for approval before performing such work. This shall apply to all
work including, but not limited to, installation of telephones and other communication equipment,
electrical devices and attachments and all installations affecting floors, walls, windows, doors,
ceilings, equipment or any other physical feature of the Building, Leased Premises or Warehouse
facilities. None of this work shall be done by Tenant without Landlord’s prior written approval,
which shall not be unreasonably withheld.
15. No showcases or other articles shall be put in front of or affixed to any part of the
exterior of the Building, without the prior written consent of Landlord.
16. Neither Tenant nor any officer, agent, employee, servant, patron, customer, visitor,
licensee or invitee of Tenant shall go upon the roof of the Building without the written consent of the Landlord.
2
17. In the event Tenant must dispose of crates, boxes, etc. which will not fit into wastepaper
baskets, it will be the responsibility of Tenant to dispose of same properly.
18. If the Leased Premises demised to Tenant becomes infested with vermin, such Tenant, at its
sole cost and expense, shall cause its Premises to be exterminated from time to time to the
satisfaction of Landlord and shall employ such exterminators therefor as shall be approved by
Landlord.
19. Tenant shall not install any antenna or aerial wires, radio or television equipment or any
other type of equipment inside or outside of the Building without Landlord’s prior approval in
writing and upon such terms and conditions as may be specified by Landlord in each and every
instance.
20. Tenant shall not make or permit any use of the Leased Premises, Building or Warehouse
facilities which directly or indirectly is forbidden by law, ordinance or governmental or municipal
regulation, code or order or which may be disreputable or dangerous to life, limb or property.
21. Tenant shall not advertise the business, profession or activities of Tenant in any manner
which violates the letter or spirit of any code of ethics adopted by any recognized association or
organization pertaining thereto, use the name of the Building for any purpose other than that of
the business address of Tenant or use any picture or likeness of Building or the Building name in
any letterheads, envelopes, circulars, notices, advertisements, containers or wrapping materials
without Landlord’s express consent in writing.
22. Tenant shall not conduct its business and/or control its officers, agents, employees,
servants, patrons, customers, licensees and visitors in such a manner as to create any nuisance or
interfere with, annoy or disturb any other tenant or Landlord in its operation of this Building or
commit waste or suffer or permit waste to be committed in Leased Premises.
23. The Tenant, without the prior written consent of Landlord, shall not lay linoleum or other
similar floor covering.
24. No outside storage of any material, including, but not limited to, trash (except in
approved containers), pallets or disabled vehicles, etc., will be permitted.
3
ADDENDUM
I. Base Rent Schedule
The Monthly Base Rent and monthly estimated Operating Costs are as follows:
| Est. * | Est.* | |||||||||||
| DATE | Base Rent | Operating Costs | Total (inc. tax) | |||||||||
10-01-00 to 7-31-01 |
$ | 8,112.50 | $ | 921.88 | $ | 9,621.61 | ||||||
8-1-01 to 7-31-02 |
$ | 8,274.75 | * | * | ||||||||
8-1-02 to 7-31-03 |
$ | 8,437.00 | * | * | ||||||||
8-1-03 to 7-31-04 |
$ | 8,606.63 | * | * | ||||||||
8-1-04 to 7-31-05 |
$ | 8,783.63 | * | * | ||||||||
| * | The charge for Operating Costs is based on 2000 estimates. Actual Operating Costs may change in accordance with Paragraph 2 of the Lease. Accordingly, no Estimated Operating Costs or Estimated Total figures are provided for periods beginning after December 31, 2000. Further, any changes in Operating Costs charged to the Tenant will result in a change in the Florida State Sales Tax and total rent paid by Tenant. |
II. Option to Renew.
Landlord hereby grants to Tenant one (1) option to renew this Lease for an additional five (5)
year term provided Tenant is not then in default under this Lease and Tenant gives written notice
to Landlord not less than one hundred twenty (120) days prior to the expiration of the original or
then existing renewal term of this Lease. Monthly Base Rent shall be increased for the first year
of the renewal term by two percent (2.0%) over the Monthly Base Rent charged (not including
abatements in rent for reason other than a permanent taking by way of condemnation or deed in lieu
thereof) in the final year of the original Term of this Lease. The Monthly Base Rent shall be
increased for the fourth and fifth years of the renewal term by three percent (3.0%) per annum over
the immediately preceding lease year. All other terms and conditions of this Lease will remain in
full force and effect during the renewal term other than the requirement that Landlord provide
Leasehold Improvements to the Premises as of the Commencement Date.
FIRST AMENDMENT TO LEASE
(CYPRESS POINT BUSINESS PARK)
(CYPRESS POINT BUSINESS PARK)
THIS FIRST AMENDMENT TO LEASE is entered into this 1st day of August, 2001, by and between HGL
PROPERTIES L.P., Ltd., a Florida limited partnership (“Landlord”), and ALLIANCE MORTGAGE COMPANY, a
Florida corporation (“Tenant”). All terms not otherwise defined herein shall have the meaning
assigned to them in the “Lease” (defined below).
W I T N E S S E T H
WHEREAS, Tenant and Landlord entered into that certain Lease Agreement dated August 24, 2000,
as amended by letter agreement dated August 24, 2000 (collectively, the “Lease”), for the premises
described therein and located at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the
“Leased Premises”); and
WHEREAS, Tenant presently occupies approximately 8,850 square
feet (the “Original Space”) and now desires to lease additional space as shown on Exhibit A and
Landlord and Tenant have agreed to amend the Lease to subject the “Additional Space” (defined
below) to the Lease, all upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and in
the Lease, Landlord and Tenant hereby agree as follows:
1. The recitals set forth above are hereby incorporated herein as if again set forth in their
entirety.
2. Effective the date hereof, Landlord and Tenant agree that the Lease is hereby amended as
follows:
(a) The term “Leased Premises” as defined in the Lease shall
include the Original Space and space designated as Suites 101, 102
and 103 located at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000, as more particularly delineated on Exhibit A attached hereto
(the “Additional Space”) containing 12,825 square feet of leasable
area, thereby increasing the total net leasable area of the Leased
Premises to 21,675 square feet. All charges that are due and
payable under the Lease based upon the square footage of the Leased
Premises shall be based on a total of 21,675 square feet as of
October 1, 2001.
(b) The
term “Building” shall mean Buildings 8201 and 8211.
(c) Paragraph 1 of the Addendum to Lease is hereby deleted in its entirety and the provisions
set forth on Exhibit B attached hereto are inserted in lieu thereof.
(d) The Commencement Date as set forth in Paragraph 4 of the Lease with respect to the
Additional Space shall be October 1, 2001, and the term of the Lease as to the Additional Space
shall be July 31, 2005. In addition, Landlord shall construct Leasehold Improvements to the
Additional Space pursuant to the provisions of Paragraph 4 of the Lease in accordance with the
plans and specifications dated July 16, 2001, prepared by The Stellar Group, as may be modified by
mutual agreement of the Landlord and Tenant.
(e) Tenant’s pro rata share of Operating Costs as set forth in
Paragraph 1(c) of the Lease shall be 32.6%.
(f) Tenant and Landlord covenant, represent, and warrant to each other that neither party has
had any dealings or negotiations with any Broker or Agent in connection with the consummation of
this First Amendment, and Landlord and Tenant covenant and agree to pay, hold harmless and
indemnify each other from and against any and all costs, expenses (including reasonable attorneys’
fees before trial, at trial, and on appeal) or liability for any compensation, commissions, or
charges claimed through either party by any broker or agent with respect to this First Amendment or
the negotiation thereof.
3. Except as specifically modified and amended herein, all of the terms, provisions,
covenants, and conditions of the Lease shall remain unmodified and in full force and effect as
written.
4. This First Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5. To the extent the provisions of the Lease and this First Amendment are inconsistent, the
provisions of this First Amendment shall supersede and control.
| IN WITNESS WHEREOF, Landlord and Tenant have executed this |
First Amendment to Lease as of the day and year first above
written.
| Signed, sealed and delivered in the presence of: | HGL PROPERTIES L.P., Ltd. a Florida limited partnership |
|||||||
| /s/ Xxxxx X. Xxxxxxxxxx | By: | HGL PROPERTIES G.P., INC. | ||||||
(Print Name)
|
a Florida corporation | |||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||||
| Xxxxxxx X. Xxxxx
Its Vice President |
||||||||
| /s/ Xxxx X. Xxxxxxx | ||||||||
(Print Name)
|
(Corporate Seal) | |||||||
| “LANDLORD” | ||||||||
| ALLIANCE MORTGAGE COMPANY, a Florida corporation |
||||||||
| /s/ Xxxxx X. Xxxxxxxxxx | By: | /s/ Xxxxxxx X. Xxxx, Xx. | ||||||
(Print Name)
|
(Print Name) Xxxxxxx X. Xxxx, Xx. | |||||||
| Its SVP
|
||||||||
| /s/ Xxxx X. Xxxxxxx | ||||||||
(Print Name)
|
(Corporate Seal) | |||||||
| “TENANT” | ||||||||
EXHIBIT B
I. Base Rent Schedule
The Monthly Base Rent and monthly estimated Operating Costs are as follows:
| Est. * | Est. * | |||||||||||
| DATE | Base Rent | Operating Costs | Total (inc. tax) | |||||||||
8-1-01 to 9-30-01 |
$ | 8,274.75 | $ | 1,908.00 | $ | 10,895.55 | ||||||
10-l-01 to 7-31-02 |
$ | 20,266.13 | 4,686.75 | 26,699.58 | ||||||||
8-1-02 to 7-31-03 |
$ | 20,671.45 | * | * | ||||||||
8-1-03 to 7-31-04 |
$ | 21,084.88 | * | * | ||||||||
8-1-04 to 7-31-05 |
$ | 21,506.58 | * | * | ||||||||
| * | The charge for Operating Costs is based on calendar year 2001 estimates. Actual Operating Costs may change in accordance with Paragraph 2 of the Lease. Accordingly, no Estimated Operating Costs or Estimated Total figures are provided for periods beginning after December 31, 2001. Further, any changes in Operating Costs charged to the Tenant will result in a change in the Florida State Sales Tax and total rent paid by Tenant. |
II. Options to Renew.
(a) Landlord hereby grants to Tenant one (1) option to renew this Lease for an additional
seven (7) month term provided Tenant is not then in default under this Lease or the Lease Agreement
dated May 14,1998, with Landlord covering the space located at 0000 Xxxxxxx Xxx (the “Nations Way
Lease”), the Nations Way Lease is in full force and effect and Tenant gives written notice to
Landlord not less than one hundred twenty (120) days prior to the expiration of the original term
of this Lease. Monthly Base Rent shall be equal to the Monthly Base Rent charged (not including
abatements in rent for reason other than a permanent taking by way of condemnation or deed in lieu
thereof) in the final year of the original Term of this Lease.
(b) Landlord hereby grants to Tenant one (1) option to renew this Lease
for an additional five (5) year term following the expiration of the extended
term set forth in subparagraph (a) above provided Tenant is not then in default under this Lease
and Tenant gives written notice to Landlord not less than one hundred twenty (120) days prior to
the expiration of the extended term of this Lease. Monthly Base Rent shall be increased for the
first year of the renewal term by two percent (2.0%) over the Monthly Base Rent charged (not
including
abatements in rent for reason other than a permanent taking by way of
condemnation or deed in lieu thereof) in the final year of the
original Term of this Lease. The
Monthly Base Rent shall be increased for the fourth and fifth
years of the renewal term by three percent (3.0%) per annum over the immediately
preceding lease year. All other terms and conditions of this Lease will remain in full force and
effect during the renewal term other than the requirement that Landlord provide Leasehold
Improvements to the Premises as of the Commencement Date.
SECOND AMENDMENT TO LEASE
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
THIS SECOND AMENDMENT TO LEASE is entered into this 30 day of
September, 2003, by and between HGL PROPERTIES L.P., LTD., a Florida limited partnership
(“Landlord”), and ALLIANCE MORTGAGE COMPANY, a Florida corporation (“Tenant”). All terms not
otherwise defined herein shall have the meaning assigned to them in the “Lease” (defined below).
W I T N E S S E T H
WHEREAS, Tenant and Landlord entered into that certain Lease Agreement dated August 24, 2000,
as amended by letter agreement dated August 24, 2000 and First Amendment to Lease
dated August ___, 2001 (collectively, the “Lease”), for the premises described therein and located
at 8201 and 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the “Leased Premises”); and
WHEREAS, Tenant presently occupies approximately 8,850 square feet in the Building located at
0000 Xxxxxxx Xxxxx Xxxxx (the “the 8201 Space”) and approximately 12,825 square feet in the
Building located at 0000 Xxxxxxx Xxxxx Xxxxx (the “8211 Space”).
WHEREAS, affiliates of Landlord and Tenant have this date entered into a lease for space to be
constructed at 0000 Xxxxxxx Xxx (the “8200 Lease”) and, as an inducement to enter into the 8200
Lease, Landlord and Tenant have agreed to amend this Lease to extend the term and to provide and
early termination option as to the 8211 Space, all upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and in
the Lease, Landlord and Tenant hereby agree as follows:
1. The recitals set forth above are hereby incorporated herein as if again set forth in their
entirety.
2. Effective the date hereof, Landlord and Tenant agree that the Lease is hereby
amended as follows:
(a) Tenant
hereby exercises the second option to extend the Lease as provided
therein so as to make the expiration of the term of the
Lease coterminous with the later to occur of June 31, 2011 or the expiration of the initial term of
the 8200 Lease. Base Monthly Rent shall be as set forth on Exhibit A attached hereto and made a
part hereof. Landlord grants to Tenant two (2) options to renew the Lease for an additional five
(5) year term on the terms set forth on Exhibit A. All other options to renew, if any, contained in
the Lease are hereby terminated.
(b) Provided neither Tenant nor any of its affiliates are in default under any lease with
Landlord or its affiliates and Tenant has taken occupancy of the premises under the 8200 Lease,
Tenant is hereby granted the option to terminate the Lease as to the 8211 Space effective no
earlier than June 30, 2004, but in no event later than July 31, 2006, by giving Landlord two (2)
months prior written notice of Tenant’s exercise of such option.
(c) Upon the effective date of the early termination of the Lease (the “effective date”) as to
the 8211 Space as provided in subparagraph (b) above, the Lease shall be amended as follows:
(i) the term “Leased Premises” as defined in the Lease shall include only the 8201 Space as
more particularly delineated on Exhibit B attached hereto containing 8,850 square feet of leasable
area. All charges that are due and payable under the Lease based upon the square footage of the
Leased Premises shall be based on a total of 8,850 square feet as of the effective date.
(ii) The term “Building” shall mean Building 8201.
(iii) Paragraph I of Exhibit A attached hereto is deleted in its entirety and the provisions
set forth on Exhibit C attached hereto are inserted in lieu thereof.
(iv) Tenant’s pro rata share of Operating Costs as set forth in Paragraph 1(c) of the Lease
shall be 13.3%.
3. Except as specifically modified and amended herein, all of the terms, provisions,
covenants, and conditions of the Lease shall remain unmodified and in full force and effect as
written.
4. This Second Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5. To the extent the provisions of the Lease and this Second Amendment are inconsistent, the
provisions of this Second Amendment shall supersede and control.
(remainder of page left blank)
2
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second Amendment to Lease as of
the day and year first above written.
| Signed, sealed and delivered in the presence of: | HGL PROPERTIES L.P., LTD. | ||||||
| a Florida limited partnership | |||||||
| /s/ E. Xxxxxxx Xxxxxxxxxx | By: | HGL PROPERTIES G.P., INC. | |||||
| (Print Name) E. Xxxxxxx Xxxxxxxxxx | a Florida corporation, general partner | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | ||||||
| Xxxxxxx X. Xxxxx | |||||||
| Its Vice President | |||||||
| /s/ Xxxx X. Xxxxxxx | |||||||
| (Print Name) Xxxx X. Xxxxxxx | (Corporate Seal) | ||||||
| “LANDLORD” | |||||||
| ALLIANCE MORTGAGE COMPANY, a | |||||||
| Florida corporation | |||||||
| /s/ Xxxxx Xxxxx | By: | /s/ Xxxx X. Xxxxx | |||||
| (Print Name) Xxxxx Xxxxx | (Print Name) Xxxx X. Xxxxx | ||||||
| Its Chairman/ CEO | |||||||
 |
|||||||
| /s/ Xxxxx Xxxxxx | |||||||
| (Print Name) Xxxxx Xxxxxx | (Corporate Seal) | ||||||
| “TENANT” | |||||||
3
EXHIBIT A
I. Base Rent Schedule
Alliance Mortgage Company Lease on 8201 and 0000 Xxxxxxx Xxxxx Xxxx.
The Monthly Base Rent is as follows:
| Date | Base Monthly Rent (not including sales tax) | |||
08-01-02 to 07-31-03 |
20,671.45 | |||
08-01-03 to 07-31-04 |
21,084.88 | |||
08-01-04 to 07-31-05 |
21,506.58 | |||
08-01-05 to 07-31-06 |
21,936.71 | |||
08-01-06 to 07-31-07 |
22,375.45 | |||
08-01-07 to 07-31-08 |
22,822.95 | |||
08-01-08 to 07-31-09 |
23,507.64 | |||
08-01-09 to 07-31-10 |
24,212.87 | |||
08-01-10 to 06-30-11 (est.) |
24,939.26 | |||
II. Options to Renew.
Landlord hereby grants to Tenant two (2) options to renew this Lease for an additional five
(5) year term each following the expiration of the immediately preceding term provided Tenant is
not then in default under this Lease and Tenant gives written notice to Landlord not less than one
hundred twenty (120) days prior to the expiration of the extended term of this Lease. Monthly Base
Rent shall be increased for the first year of the renewal term by one and one-half per cent (1.5%)
over the Monthly Base Rent charged (not including abatements in rent for reason other than a
permanent taking by way of condemnation or deed in lieu thereof) in the final year of the original
Term of this Lease. Monthly Base Rent shall increase for each of the second through fifth years of
the renewal by one and one-half per cent (1.5%) over the immediately preceding lease year. All
other terms and conditions of this Lease will remain in. full force and effect during the renewal
term other than the requirement that Landlord provide Leasehold Improvements to the Premises as of
the Commencement Date.
4
EXHIBIT B
(Sketch of Premises if early termination option exercised)
(Sketch of Premises if early termination option exercised)
5
EXHIBIT C
If the termination option is exercised, the Monthly Base Rent as to the 8201 space will be as
follows:
| Date | Base Monthly Rent (not including sales tax) | |||
07-01-04 to 07-31-04 |
8,608.84 | |||
08-01-04 to 07-31-05 |
8,781.41 | |||
08-01-05 to 07-31-06 |
8,957.04 | |||
08-01-06 to 07-31-07 |
9,136.18 | |||
08-01-07 to 07-31-08 |
9,318.91 | |||
08-01-08 to 07-31-09 |
9,598.47 | |||
08-01-09 to 07-31-10 |
9,886.43 | |||
08-01-10 to 06-30-11 (est.) |
10,183.02 | |||
6
THIRD AMENDMENT TO LEASE
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
THIS
THIRD AMENDMENT TO LEASE is entered into this 12th day of March, 2004, by and
between HGL PROPERTIES L.P., LTD., a Florida limited partnership (“Landlord”), and EVERBANK, a
federally chartered savings bank, formerly known as FIRST ALLIANCE BANK (“Tenant”). All terms not
otherwise defined herein shall have the meaning assigned to them in the “Lease” (defined below).
W I T N E S S E T H
WHEREAS, ALLIANCE MORTGAGE COMPANY (“AMC”) and Landlord entered into that certain Lease
Agreement dated August 24, 2000, as amended by letter agreement dated August 24, 2000, First
Amendment to Lease dated August 1, 2001 and Second Amendment to Lease (the “Second Amendment”)
dated September 30, 2003 (collectively, the “Lease”) as assigned by AMC to Tenant pursuant
Assignment and Assumption of Lease Agreement dated September 30, 2003, for the premises described
therein and located at 8201 and 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the “Leased
Premises”); and
WHEREAS, Tenant presently occupies approximately 8,850 square feet in the Building
located at 0000 Xxxxxxx Xxxxx Xxxxx (the “the 8201 Space”) and approximately 12,825 square
feet in the Building located at 0000 Xxxxxxx Xxxxx Xxxxx (the “8211 Space”).
WHEREAS, affiliates of Landlord and Tenant have this date amended the Lease Agreement dated
September 30, 2003 for space at 0000 Xxxxxxx Xxx (the “8200 Lease”) and, as an inducement to amend
the 8200 Lease, Landlord and Tenant have agreed to amend this Lease to eliminate the early
termination option as to the 8211 Space, all upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and in
the Lease, Landlord and Tenant hereby agree as follows:
1. The recitals set forth above are hereby incorporated herein as if again set forth in their
entirety.
2. Effective the date hereof, Landlord and Tenant agree that the Lease is hereby amended to
delete in its entirety subparagraphs 2 (b) and (c) of the Second Amendment (the“Early Termination
Option”) thereby eliminating the Early Termination Option.
3. Except as specifically modified and amended herein, all of the terms, provisions,
covenants, and conditions of the Lease shall remain unmodified and in full force and effect as
written.
4. This Third Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
5. To the extent the provisions of the Lease and this Third Amendment are inconsistent,
the provisions of this Third Amendment shall supersede and control.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Third Amendment to Lease as of the
day and year first above written.
| Signed, sealed and delivered in the presence of: | HGL PROPERTIES L.P., LTD. | |||||||||
| a Florida limited partnership | ||||||||||
| /s/ Xxxxxxx Xxxxxxx | ||||||||||
(Print Name)
|
Xxxxxxx Xxxxxxx | By: | HGL PROPERTIES G.P., INC. | |||||||
| a Florida corporation, general partner | ||||||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||||||
| Its Vice President | ||||||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||||||
(Print Name)
|
Xxxxxxx X. Xxxxx | (Corporate Seal) | ||||||||
| “LANDLORD” | ||||||||||
| EVERBANK, a federally chartered savings bank | ||||||||||
| /s/ Xxxxxx Xxxxxxxx Xxxx | ||||||||||
| (Print Name) | Xxxxxx Xxxxxxxx Xxxx | By: | /s/ Xxxx X. Xxxxx
|
|||||||
| (Print Name) Xxxx X. Xxxxx | ||||||||||
| Its President | ||||||||||
| /s/ Xxxxxxx Xxxxxx | ||||||||||
(Print Name)
|
Xxxxxxx Xxxxxx | (Corporate Seal) | ||||||||
| “TENANT” | ||||||||||
2
FOURTH AMENDMENT TO LEASE
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
THIS FOURTH AMENDMENT TO LEASE is entered into this 28th day of July, 2005, by and
between HGL PROPERTIES L.P., LTD., a Florida limited
partnership (“Landlord”), and EVERBANK, a
federally chartered savings bank, formerly known as FIRST ALLIANCE BANK (“Tenant”). All terms not
otherwise defined herein shall have the meaning assigned to them in the “Lease” (defined below).
W I T N E S S E T H
WHEREAS, ALLIANCE MORTGAGE COMPANY (“AMC”) and Landlord entered into that certain Lease
Agreement dated August 24, 2000, as amended by letter agreement dated August 24, 2000, First
Amendment to Lease dated August 1, 2001 (“First Amendment”), Second Amendment to Lease (the “Second
Amendment”) dated September 30, 2003, and Third Amendment to Lease dated March 12, 2004
(collectively, the “Lease”) as assigned by AMC to Tenant pursuant Assignment and Assumption of
Lease Agreement dated September 30, 2003, for the premises described therein and located at 8201
and 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the “Leased Premises”); and
WHEREAS, Tenant presently occupies approximately 8,850 square feet in the Building located at
0000 Xxxxxxx Xxxxx Xxxxx (xxx X0000 Space@) and approximately 12,825 square feet in the Building
located at 0000 Xxxxxxx Xxxxx Xxxxx (the “8211 Space”) and Landlord and Tenant have agreed to amend
the Lease to subject Suite 108 located within the Building located at 0000 Xxxxxxx Xxxxx Xxxxx
containing 5400 square feet of leaseable area (the “Additional Space”), to the terms of the Lease,
all upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and in
the Lease, Landlord and Tenant hereby agree as follows:
1. The recitals set forth above are hereby incorporated herein as if again set forth in their
entirety.
2. Effective the date hereof, Landlord and Tenant agree that the Lease is hereby amended as
follows:
(a) The term “Leased Premises” as defined in the Lease shall include the 8201 Space, the 8211
Space and the Additional Space, thereby increasing the total net leaseable area of the Leased
Premises to 27,075 square feet. All charges that are due and payable under the Lease based upon the
square footage of the Leased Premises shall be
1
based on a total of 27,075 square feet as of January 1, 2006.
(b) Paragraph 1 of the Addendum to Lease (as modified by the First Amendment) is hereby
deleted in its entirety and the provisions set forth on Exhibit B attached hereto are inserted in
lieu thereof.
(c) The Commencement Date as set forth in Paragraph 4 of the Lease with respect to the
Additional Space shall be January 1, 2006, and the term of the Lease as to the Leased Premises
shall expire on June 30, 2011. Notwithstanding the foregoing, Landlord hereby grants permission to
Tenant to occupy the Additional Space without payment of rent or operating expenses for the period
commencing on August 1, 2005 and expiring on December 31, 2005. Further, Landlord shall not be
required to make any tenant improvements to the space and Tenant agrees to accept the space “As
Is”, subject to the respective maintenance obligations set forth in the Lease.
(e) Tenant=s pro rata share of Operating Costs as set forth in Paragraph 1(c) of the Lease
shall be 40.72%.
(f) Tenant and Landlord covenant, represent, and warrant to each other that neither party has
had any dealings or negotiations with any Broker or Agent in connection with the consummation of
this Fourth Amendment, and Landlord and Tenant covenant and agree to pay, hold harmless and
indemnify each other from and against any and all costs, expenses (including reasonable attorneys’
fees before trial, at trial, and on appeal) or liability for any compensation, commissions, or
charges claimed through either party by any broker or agent with respect to this Fourth Amendment
or the negotiation thereof.
3. Except as specifically modified and amended herein, all of the terms, provisions,
covenants, and conditions of the Lease shall remain unmodified and in full force and effect as
written.
4. This Fourth Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5. To the extent the provisions of the Lease and this Fourth Amendment are inconsistent, the
provisions of this Fourth Amendment shall supersede and control.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fourth
Amendment to Lease as of the day and year first above written.
| Signed, sealed and delivered in the presence of: | HGL PROPERTIES L.P., LTD. | ||||
| a Florida limited partnership | |||||
| /s/ E. Xxxxxxx Xxxxxxxxxx | By: | HGL PROPERTIES G.P., INC. | |||
| (Print Name) E. Xxxxxxx Xxxxxxxxxx | a Florida corporation, general partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | |||||
| Its Vice President | |||||
| /s/ Xxxxx X. Xxxxxxxxxx | |||||
| (Print Name) Xxxxx X. Xxxxxxxxxx | (Corporate Seal) | ||||
| EVERBANK, a federally chartered savings bank | |||||
| /s/ Xxxxx X. Xxxxx | By: | /s/ Xxxx Xxxxx | |||
| (Print Name) Xxxxx X. Xxxxx | (Print Name) Xxxx Xxxxx Its EVP |
||||
| /s/ Xxxxxx Xxxxxxxx Xxxx | |||||
| (Print Name) Xxxxxx Xxxxxxxx Xxxx | (Corporate Seal) | ||||
3
EXHIBIT
A
I. Base Rent Schedule for Everbank Lease of 8201 and 0000 Xxxxxxx Xxxxx Xxxx.
The Monthly Base Rent is as follows:
| Date | Base Monthly Rent (not including sales tax) in dollars | |||
07-01-05 to 12-31-05 |
21,936.71 | |||
01-01-06 to 07-31-06 |
27,413.44 | |||
08-01-06 to 07-31-07 |
27,954.94 | |||
08-01-07 to 07-31-08 |
28,496.44 | |||
08-01-08 to 07-31-09 |
29,353.81 | |||
08-01-09 to 07-31-10 |
30,233.75 | |||
08-01-10 to 06-30-11 |
31,136.25 | |||
4
FIFTH AMENDMENT TO LEASE
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
(CYPRESS POINT BUSINESS PARK)
(8201 and 0000 Xxxxxxx Xxxxx Xxxxx)
THIS
FIFTH AMENDMENT TO LEASE is entered into as of the 6th day of December, 2006, by and between
HGL PROPERTIES L.P., LTD., a Florida limited partnership (“Landlord”), and EVERBANK, a federally
chartered savings bank (“Tenant”). All terms not otherwise defined herein shall have the meaning
assigned to them in the “Lease” (defined below).
RECITALS:
A. Landlord and Tenant or their predecessors entered into that certain Lease Agreement dated
August 24, 2000, as amended by letter agreement dated
August 24, 2000, First Amendment to Lease dated
August 1, 2001, Second Amendment to Lease dated September 30, 2003, Third Amendment to Lease dated
March 12, 2004, and Fourth Amendment to Lease dated
July 28, 2005, as assigned by Assignment and
Assumption of Lease Agreement dated September 30, 2003 (collectively, the “Lease”), for the
premises described therein and located at 8201 and 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000.
B. Landlord and Tenant desire to amend the Lease to provide a use restriction on certain other
property owned by Landlord and to extend the term of the Lease, all on the terms more particularly
set forth herein.
IN CONSIDERATION of the mutual promises and covenants contained herein and in the Lease,
Landlord and Tenant hereby agree as follows:
1. The recitals set forth above are hereby incorporated herein as if again set forth in their
entirety.
2. Effective the date hereof, Landlord and Tenant agree that the Lease is hereby amended as
follows:
1. The recitals set forth above are hereby incorporated herein as if again set forth in their
entirety.
2. Effective
the date hereof, Landlord and Tenant agree that the Lease is hereby amended as
follows:
(a) The term of the Lease is extended by twelve (12) months such that the term will expire on
June 30, 2012. Base Monthly Rent shall be as set forth on Exhibit A attached hereto and made a part
hereof.
(b) The following is added to the Lease as Paragraph 44:
Use Restriction. Except as set forth herein, Landlord shall not use or permit the
1
property more particularly described on Schedule 1 attached hereto and made a part hereof
(“Landlord’s Property”) to be used by any person or entity for “financial service center purposes”
(the “Restriction”) until the sooner to occur of the termination of the lease or eighteen (18)
months before the expiration of the term of this lease (or any extension term pursuant to an
extension option exercised by Tenant or otherwise extended pursuant to written agreement) (the
“Restricted Period”). For purposes hereof, the term “financial service center purposes” shall mean
a business operation in which 50% or more of the activity conducted on the Property involves the
origination, servicing or packaging of mortgage loans whether performed at the retail or wholesale
level. Notwithstanding the foregoing, such use restriction shall not apply to (i) existing leases
of space in Landlord’s Property and any renewals or expansions made pursuant to the terms of such
leases, or the relocation of any such tenant within Landlord’s Property under substantially the
same terms and conditions as their existing lease for equivalent or smaller premises, (ii) leases
now existing or hereafter made with Washington Mutual or any successors thereto or any other
brokerage house or credit union, (iii) persons or entities engaged in the collection of debts, (iv)
an entity engaged primarily in the issuance or processing of credit and/or debit cards, or (v) an
entity, agency, authority or governmental organization engaged in the insurance business and
ancillary activities including, without limitation, underwriting, issuance, sale and servicing of
policies of insurance. In the event of a violation of the Restrictions, Tenant shall be entitled to
pursue all remedies available at law or in equity, including, without limitation, injunctive
relief. Further, since damages are difficult or incapable of being determined as a result of a
breach by Landlord of the provisions hereof, Tenant shall be entitled to recover as liquidated
damages, and not as a penalty, $500 per day for each day that Landlord is in violation of the
provisions hereof commencing with the date that Tenant first provides notice to Landlord of the
violation and ending with the day that the violation ceases. In the event litigation arises out of
the enforcement of these Restrictions, the prevailing party shall be entitled to recover all costs
and expenses incurred in connection therewith including, without limitation, reasonable attorneys’
fees, whether incurred before trial, at trial, or on appeal.
3. Tenant and Landlord covenant, represent, and warrant to each other that neither party has had
any dealings or negotiations with any Broker or Agent in connection with the consummation of this
Third Amendment, and Landlord and Tenant covenant and agree to pay, hold harmless and indemnify
each other from and against any and all costs, expenses (including reasonable attorneys’ fees
before trial, at trial, and on appeal) or liability for any compensation, commissions, or charges
claimed through either party by any broker or agent with respect to this Third Amendment or the
negotiation thereof.
4. Except as specifically modified and amended herein, all of the terms, provisions, covenants, and
conditions of the Lease shall remain unmodified and in full force and effect as written.
5. This Fifth Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
2
6. To the extent the provisions of the Lease and this Fifth Amendment are inconsistent, the
provisions of this Fifth Amendment shall supersede and control.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth Amendment to Lease as of the day
and year first above written.
| Signed, sealed and delivered | HGL PROPERTIES L.P., LTD. | |||||
| in the presence of: | a Florida limited partnership | |||||
| /s/ Xxxxx X. Xxxxxxxxxx | By: | HGL PROPERTIES G.P., INC. | ||||
| (Print Name) Xxxxx X. Xxxxxxxxxx | a Florida corporation, general partner | |||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Xxxxxxx X. Xxxxx, Vice President | ||||||
| /s/ E. Xxxxxxx Xxxxxxxxxx | ||||||
| (Print Name) E. Xxxxxxx Xxxxxxxxxx | (Corporate Seal) | |||||
| EVERBANK, a federally chartered savings bank | ||||||
| /s/ Xxxxxxx Xxxxxxx | By: | /s/ Xxxx Xxxxx | ||||
| (Print Name) Xxxxxxx Xxxxxxx | (Print Name) Xxxx
Xxxxx Its: EVP/CIO |
|||||
 |
||||||
| /s/ Xxxxxx X. Childress | ||||||
| (Print Name) Xxxxxx X. Childress | (Corporate Seal) | |||||
 |
||||||
3
EXHIBIT A
Base Rent Schedule for Everbank Lease of 8201 and 0000 Xxxxxxx Xxxxx Xxxx.
The Monthly Base Rent is as follows:
| Date | Base Monthly Rent (not including sales tax) in dollars | |||
08-01-06 to 07-31-07 |
27,954.94 | |||
08-01-07 to 07-31-08 |
28,496.44 | |||
08-01-08 to 07-31-09 |
29,353.81 | |||
08-01-09 to 07-31-10 |
30,233.75 | |||
08-01-10 to 07-31-11 |
31,136.25 | |||
08-01-11 to 06-30-12 |
31,610.63 | |||
4
