EXHIBIT 10.11
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LEASE AGREEMENT
Between
XXXXXXX EQUITIES INC.
("Landlord")
and
HTE, INC.
("Tenant")
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LEASE AGREEMENT
April 9, 1996
This Lease Agreement ("LEASE") is entered into as of the date first set forth
above by Xxxxxxx Equities Inc. ("LANDLORD") and HTE, Inc. ("TENANT"). For the
parties' convenience in reviewing this Lease, all defined terms in this
Agreement will be highlighted by BOLDFACE PRINT when first defined in this
Agreement.
BACKGROUND
Landlord intends to construct and lease to Tenant a three-story office building
containing approximately 88,993 gross square feet of space and 87,066 rentable
square feet of space ("BUILDING"). The actual rentable square footage contained
within the Building will be determined following the preparation and approval of
the "Final Base Building Plans and Specifications" (as that term is defined in
/section/2) and will be measured in accordance with the BOMA definition of space
measurement set forth in ANSI a65.1-1980. The Building will be constructed on an
approximately five acre site in the Heathrow International Business Center in
Lake Mary, Florida, which site is more particularly described in attached
Exhibit A ("LAND").
AGREEMENT
Landlord and Tenant hereby agree as follows:
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/section/1. LEASE OF PROPERTY. Landlord hereby leases the Land, the Building and
all related site improvements (collectively the "PROPERTY") to Tenant upon the
terms and conditions set forth in this Lease.
/section/2. BASE BUILDING IMPROVEMENTS. Landlord and Tenant have approved
preliminary specifications for the Building and all related site improvements
(collectively the "BASE BUILDING IMPROVEMENTS"), which preliminary
specifications are attached hereto as Exhibit B ("PRELIMINARY BASE BUILDING
SPECIFICATIONS"). Tenant has authorized Landlord to proceed with the preparation
of final architectural and engineering drawings, plans and specifications for
the Base Building Improvements. Once those drawings, plans and specifications
are completed, Landlord will deliver a full set thereof to Tenant for its review
and approval. Tenant will notify Landlord within ten days after its receipt of
such drawings, plans and specifications of its approval thereof or its
objections to anything contained therein, which objections, if any, will be
premised solely upon the fact that such drawings, plans and specifications are
inconsistent with the approved Preliminary Base Building Specifications. If
Tenant fails to respond to Landlord's submission to it within the aforementioned
ten-day period, then Tenant will be deemed to have approved such submission for
all purposes of this Lease. If, however, Tenant notifies Landlord within the
aforementioned ten-day period that it objects to such submission on the basis
that the same is inconsistent with the approved Preliminary Base Building
Specifications, then Landlord will, within ten days after its receipt of
Tenant's notice, cause the drawings, plans and specifications to be modified to
meet Tenant's objections and will then resubmit the modified drawings, plans and
specifications to Tenant for its review and
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approval. The provisions of this /section/2 regarding the scope of Tenant's
review of any drawings, plans and specifications and the time period within
which it must respond to any such submission will be equally applicable to
Tenant's review of any modified drawings, plans and specifications. The
drawings, plans and specifications, once approved by Tenant, will constitute the
"FINAL BASE BUILDING PLANS" and will thereafter be deemed incorporated herein by
this reference.
If Tenant desires to make any revisions to the approved Final Base Building
Plans, Tenant will so notify Landlord and Landlord will then cause its general
contractor to prepare a cost estimate for the implementation of such changes.
Landlord will promptly notify Tenant of any increased costs or savings resulting
from such changes and Tenant will then have the right to require Landlord to
cause such changes to be made to the Final Base Building Plans, unless any such
changes would unreasonably affect the structural integrity or value of the
Building, in which event Landlord will not be required to make any such changes.
If the aggregate of all such changes (net of any savings) results in a net
increase in the cost of the construction of the Base Building Improvements, then
the monthly Base Rent payable by Tenant pursuant to /section/7 will be increased
to reflect the amortization of such increased costs over the Initial Lease Term
at an interest factor of 11% per year.
/section/3. TENANT IMPROVEMENT ALLOWANCE. Landlord will provide a tenant
improvement allowance ("TI ALLOWANCE") of $15 per rentable square foot contained
within the Building (less any square footage contained within the Building's
atrium) for the design and construction of interior tenant
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improvements ("TENANT IMPROVEMENTS"). For the purposes of this Lease, the Tenant
Improvements will be those interior improvements to be made to the Building,
which are in addition to the Base Building Improvements described in /section/2.
Landlord and Tenant agree that, promptly following the parties' execution of
this Lease, they will meet to develop approved preliminary specifications for
the Tenant Improvements. Once Landlord and Tenant have approved preliminary
specifications for the Tenant Improvements, Landlord will proceed with the
preparation of the final architectural and engineering drawings, plans and
specifications for the Tenant Improvements. Once those drawings, plans and
specifications are completed, Landlord will deliver a full set thereof to Tenant
for its review and approval. The scope and time period applicable to Tenant's
review of the final architectural and engineering drawings, plans and
specifications for the Tenant Improvements will be identical to those which are
specified in /section/2 with respect to the drawings, plans and specifications
for the Base Building Improvements. The drawings, plans and specifications for
the Tenant Improvements, once approved by Tenant, will constitute the "FINAL
TENANT IMPROVEMENTS PLANS" and will thereafter be deemed incorporated herein by
this reference.
If the cost of constructing the Tenant Improvements in accordance with the
approved Final Tenant Improvement Plans (as determined by Landlord's general
contractor and agreed to by Tenant) exceeds the amount of the TI Allowance
("EXCESS COSTS"), then, in such event, Landlord will provide the additional
funds required to so construct the Tenant Improvements and the annual Base Rent
payable by Tenant for each year during the Lease Term will be
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increased by an amount equal to 15% of the Excess Costs; provided, however, that
if the Excess Costs exceed an amount equal to $5.00 per rentable square feet
contained within the Building ("BASE AMOUNT") then Tenant will, within three
business days after Landlord's written demand for the payment thereof, pay to
Landlord in cash the portion of such Excess Costs which are over and above the
Base Amount. If Landlord and Tenant mutually determine that the cost of
constructing the Tenant Improvements in accordance with the Final Tenant
Improvement Plans will exceed the amount of the TI Allowance, then Landlord will
advise Tenant of its expectation as to the level of such construction costs and
Landlord will refrain from commencing construction of the Tenant Improvements in
accordance with such Final Tenant Improvement Plans until it receives Tenant's
written authorization to do so ("EXCESS COST NOTICE"). If the cost of the Tenant
Improvements (as determined by Landlord's general contractor) is less than the
TI Allowance ("DIMINISHED COSTS"), then the amount of the Diminished Costs will
be paid by Landlord to Tenant in cash on or before the first day of the third
year of the Lease Term. In determining the cost of the Tenant Improvements,
there will be excluded any fees or other costs attributable to Landlord's
supervision of the construction of the Tenant Improvements, but there will be
included a general contractor's fee equal to 5% of the total cost of the
construction of the Tenant Improvements. Landlord will require its general
contractor to competitively bid all of its subcontract work related to the
Tenant Improvements to at least three subcontractors; provided, however, that
Landlord will not in any event be required to select the low bid if Landlord
reasonably determines that the low bid is also not the best bid because of the
reliability or reputation of the bidding subcontractor or the quality of its
work. Prior to commencement of construction of the Tenant Improvements,
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Landlord will cause its general contractor to provide Tenant with a schedule of
values outlining the specific work to be performed as part of the Tenant
Improvements and assigning specific values to each such item of work, together
with a copy of the general contractor's approved schedule for the construction
of the Tenant Improvements. Landlord agrees that the general contractor's fee
will be limited to 5% of the cost of the construction of Tenant Improvements and
that, for a period of one year after substantial completion of the Tenant
Improvements upon reasonable prior written notice to Landlord, Tenant will have
the right to audit Landlord's records and files concerning the Tenant
Improvement's.
If Tenant desires to make any revisions to the approved Final Tenant Improvement
Plans, Tenant will so notify Landlord and Landlord will then ask its general
contractor to prepare a cost estimate for the implementation of such changes.
Landlord will promptly notify Tenant of any increased costs or savings resulting
from such changes and Tenant would have the right to require Landlord to cause
such changes to be made to the Final Tenant Improvement Plans, unless any such
changes would unreasonably affect the structural integrity or value of the
Building, in which event Landlord will not be required to make any such changes.
If the aggregate of all such changes results in a net increase or net decrease
in the cost of the Tenant Improvements, then any such increase or decrease will
thereafter be applied to the TI Allowance and any economic adjustments in
Tenant's rent or the amount of any payment to be made to Tenant by Landlord
hereunder will be recomputed in accordance with the provisions of the
immediately preceding paragraph of this /section/3.
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/section/4. CONSTRUCTION OF IMPROVEMENTS. Landlord will cause the Base Building
Improvements and the Tenant Improvements (collectively, the "IMPROVEMENTS") to
be constructed in accordance with the Final Base Building Plans and the Final
Tenant Improvement Plans, respectively (collectively, the "FINAL PLANS").
Landlord acknowledges that time is of the essence under this Lease and that it
will use its best efforts, subject to the occurrence of any of the "Delay
Events" (as that term is hereinafter defined), to complete all of the following
construction tasks by the targeted completion dates set forth below:
CONSTRUCTION TASK TARGETED DATE FOR COMPLETION
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1. Submission of the Final Base Building Plans to Xxxx Xxxx and/or
Seminole County Building Department for issuance of building permit
to begin construction of the Base Building Improvements. June 7, 1996
2. Commencement of construction of Base Building Improvements. July 31, 1996
3. Substantial completion of all Improvements. May 22, 1997
If Landlord fails to achieve either of the construction tasks set forth as item
# 1 or item # 2, above, within sixty days after the designated targeted date for
the completion thereof, for any reason other than the occurrence of a Delay
Event, then Tenant may terminate its obligations under this Lease by delivering
written notice of termination to Landlord within five days after the expiration
of the aforementioned sixty day period. In addition, if Landlord fails to
achieve the construction task set forth as item # 3, above, by the designated
targeted date for the completion thereof, for any reason other than the
occurrence of a Delay Event, then Landlord will pay to Tenant as liquidated
damages an amount equal to $1,000 for each day of the delay
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in achieving such construction task, which amount the parties hereby agree
represents reasonable daily damages likely to be incurred by Tenant as a result
of such failure by Landlord and is not a penalty. If Landlord has not achieved
the construction task set forth as item #3, above, by September 30, 1997, for
any reason other than the occurrence of a Delay Event, then Tenant may terminate
its obligations under this Lease by delivering written notice of termination to
Landlord on or before October 5, 1997. In addition, if, as of June 30, 1997, it
is demonstrably evident by the then progress of the construction of the Tenant
Improvements that Landlord will not be capable of achieving the construction
task set forth as item #3 by September 30, 1997, for any reason other than the
occurrence of a Delay Event, then Tenant will also have the right to terminate
its obligations under this Lease by delivering written notice of termination to
Landlord on or before July 5, 1997. If Landlord has not achieved the
construction task set forth as item #3, above, by September 30, 1997, for any
reason other than the occurrence of a Delay Event, then, in lieu of exercising
its termination right pursuant to this paragraph, Tenant may instead elect to
extend the termination date of the initial Lease Term by a period equal to the
number of days of Landlord's delay in so achieving such construction task, with
no Base Rent being payable by Tenant during the period of such extension (but
with Tenant otherwise being obligated to comply with all of the terms of this
Lease during such extension period, including, without limitation, the
obligation to pay Operating Expenses).
For the purposes of this Lease, the Improvements will be deemed "SUBSTANTIALLY
COMPLETED" on the date on which a certificate of occupancy is issued by the
appropriate governmental
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authority, which certificate of occupancy will permit Tenant to occupy the
Building for the conduct of its business in the normal course.
Also for the purposes of this Lease, a "DELAY EVENT" will mean the occurrence of
any event beyond the reasonable control of Landlord which results in a delay in
its attempt to achieve any of the construction tasks referred to above,
including, without limitation, the occurrence of any of the following events:
(a) The adoption of any restrictive governmental law or
pronouncement, which has the effect of placing a moratorium on
or otherwise stopping the construction of the Base Building
Improvements or Tenant Improvements;
(b) Acts of God;
(c) Unseasonable weather (as determined, if available, by standards
of "unseasonability" promulgated by the National Oceanographic
and Atmospheric Administration covering Seminole County,
Florida;
(d) Tenant's failure to approve the preliminary specifications for
the Tenant Improvements by ______________, 1996 (assuming
Landlord's initial delivery of the same to Tenant for its
approval by no later than ________________, 1996);
(e) Tenant's failure to approve the Final Base Building Plans by
__________________, 1996 (assuming Landlord's initial delivery
of the same to Tenant for its approval by no later than
________________, 1996);
(f) Tenant's failure to approve the Final Tenant Improvement Plans
by __________________, 1996 (assuming Landlord's initial
delivery of the same to Tenant for its approval by no later
than ________________, 1996);
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(g) Any Tenant requested change to the Final Plans which, in the
reasonable judgments of Landlord's general contractor and
Tenant, will cause a delay in its critical path of construction
performance; and
(h) Tenant's failure to provide written authorization to Landlord
to proceed with the construction of the Tenant Improvements
within ten days after Tenant's receipt of an Excess Cost Notice
from Landlord under /section/3, hereof.
Upon the occurrence of any Delay Event (assuming neither Landlord, nor its
general contractor has created any independent delay or concurrent delay to such
Delay Event) the targeted date for the achievement of the aforementioned
construction tasks will be extended by the number of days equal to the number of
days of the delay caused by the occurrence of such Delay Event, which have been
shown by Landlord's general contractor to have delayed the General Contractor's
critical path of construction performance.
As soon as reasonably practicable after the date of the substantial completion
of the Improvements, Landlord and Tenant will make a joint inspection of the
Property for the purpose of determining any construction work which is in need
of correction or completion (collectively "PUNCHLIST ITEMS"). Tenant will submit
a written listing of such Punchlist Items to Landlord within ten days after
Landlord's and Tenant's joint inspection of the Building and Landlord will
thereafter repair, replace or complete all such Punchlist Items to the
reasonable satisfaction of Tenant within thirty days after the date of the
substantial completion of the Tenant Improvements or the aforementioned joint
inspection of the Building, whichever is later, provided, however, that if the
repair, replacement or completion of any such Punchlist Item is not reasonably
capable of being effected within such thirty day period, then Landlord will be
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obligated to commence the repair, replacement or completion of such punchlist
item within the aforementioned thirty day period and at all times thereafter
diligently pursue the same to completion. If Landlord fails to repair, replace
or complete any Punchlist Item within ten days after its receipt of written
notice from Tenant that the aforementioned time frames have expired without
Landlord's completion of all such Punchlist Items, then Tenant will have the
right to repair, replace or complete the remaining Punchlist Items at its cost
and to offset against any payment of Base Rent due hereunder the amount of the
reasonable out-of-pocket expenses incurred by Tenant in so repairing, replacing
or completing the remaining Punchlist Items.
Promptly following Substantial Completion of the Base Building Improvements and
Tenant Improvements, Tenant will have the right, if it so elects, to have the
rentable square footage contained within the Building remeasured by Tenant's
architect at any time prior to the date which is 30 days after the Commencement
Date. If Tenant makes such an election and if the rentable square footage
contained within the Building is less than the rentable square footage
determined to be contained within the Building following the preparation and
approval of the Final Base Building Plans and the Final Tenant Improvement Plans
as a result of the failure of the Base Building Improvements and Tenant
Improvements to comply with the Final Base Building Plans and the Final Tenant
Improvement Plans, then for all purposes of this Lease, the rentable square
footage will be deemed to be the recalculated rentable square footage and the
Base Rent will be adjusted accordingly.
/section/5. LEASE TERM. The initial term of this Lease will be for a period of
ten years ("INITIAL LEASE TERM"), commencing on the date ("COMMENCEMENT DATE")
which is the later of: (a) May 1,
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1997; or (b) the 46th day after the substantial completion of the Improvements.
The Initial Lease Term will end on the tenth anniversary of the Commencement
Date. Notwithstanding anything to the contrary contained herein, if the
substantial completion of the Improvements is delayed beyond the targeted
substantial completion date set forth in /section/4, above, as a result of any
Tenant-caused Delay Event (meaning any of those Delay Events specified in
subparagraphs (d) through (h) in /section/4), then the Commencement Date of the
Initial Lease Term will be deemed to be the later of May 1, 1997 or the date
which, but for the occurrence of such Tenant-caused Delay Event, would have been
the Commencement Date within the meaning of the first sentence of this
/section/5, and from and after such date, Tenant will be obligated to pay Base
Rent and all Operating Expenses and otherwise perform all of its other
obligations and duties set forth in this Lease.
Tenant will have an option to extend the Lease Term for up to three consecutive
renewal terms of five years each. Tenant's right to exercise its option with
respect to any such renewal term will be expressly conditioned upon both of the
following conditions being satisfied with respect to each such renewal term: (a)
Tenant must give written notice to Landlord of its election to exercise its
option with respect to such renewal term at least 180 days prior to the
scheduled commencement date of such renewal term; and (b) on the date of the
exercise of such option and on the scheduled date for the commencement of such
renewal term, the Lease must be in full force and effect without any material
default by Tenant thereunder. Tenant's occupancy of the Property during any such
renewal term will be upon the same terms and conditions which govern its
occupancy of the Property during the Initial Lease Term, except that the Base
Rent payable during each such renewal term will be as provided in /section/6.
All references in this Lease
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to the "LEASE TERM" will include the Initial Lease Term and any renewal term
exercised by Tenant pursuant to this /section/5.
Tenant will have the right, if it so elects, to occupy the Building (or any part
thereof) during the period after substantial completion of the Improvements and
prior to the Commencement Date ("EARLY OCCUPANCY PERIOD"), without having any
obligation to pay any Base Rent; provided, however, that Tenant will be
obligated to pay all Operating Expenses accruing during such Early Occupancy
Period with respect to the part of the Building which it so occupies and will
otherwise be required throughout the Early Occupancy Period to perform all of
its other duties and obligations under this Lease with respect to the portion of
the Building which it so occupies. Tenant will have the right during the Early
Occupancy Period to install its telephone and computer equipment, furniture and
work stations and pursue other pre-occupancy tasks.
As of even date herewith, Tenant and HIBC Development Company have entered into
an Expansion Agreement, which contemplates that, under certain circumstances,
the initial Lease Term will be extended to become co-terminus with the
termination date of Tenant's leasing of an additional building to be constructed
by HIBC Development Company for Tenant. The terms and conditions of any such
extension of the initial Lease Term hereunder and the Base Rent payable by
Tenant during any such extension period will be governed by the terms of the
aforementioned Expansion Agreement. In the event that Tenant decides to invoke
its expansion rights under the Expansion Agreement and the initial Lease Term
hereunder is thereby extended, Landlord will be obligated to pay Properties
Atlantic, Inc. a brokerage commission upon any such extension of the initial
Lease Term in an amount equal to $3.00
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per rentable square foot contained within the Building, multiplied by a fraction
which has as its numerator the number of full or partial years by which the
initial Lease Term is extended and which has as its denominator ten years. Any
such commission will be payable in full upon the parties' full execution of the
document so extending the initial Lease Term.
/section/6. BASE RENT. The rent payable by Tenant during the Lease Term ("BASE
RENT") is set forth below:
LEASE PERIOD PRSF RENT MONTHLY RENT ANNUAL RENT
------------ --------- ------------ -----------
Years 1-2 (applicable only to 11.99 69,942 839,304
70,000 square feet of space)
Year 3 11.99 86,993 1,043,916
Years 4-6 12.34 89,533 1,074,396
Years 7-9 12.75 92,508 1,110,096
Year 10 13.10 95,047 1,140,564
Years 11-15 (First Renewal Term) 13.75 99,763 1,197,156
Years 16-20 (Second Renewal Term) 14.85 107,744 1,292,928
Years 21-25 (Third Renewal Term) 16.00 116,088 1,393,056
For the purposes of this Lease, a "YEAR" refers to each consecutive 12-month
period during the Lease Term, with the first such year beginning on the
Commencement Date and terminating 12 months thereafter.
The Base Rent will be adjusted as required in /section//section/2 and 3 of this
Lease (relating to changes in the Final Plans). The parties hereto acknowledge
that during years one and two of the Initial Lease Term, Tenant will be
obligated to pay Base Rent only on 70,000 rentable square feet of
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space in the Building, even though Tenant is being given the right to occupy the
entire Building during such years.
Each monthly installment of Base Rent will be due and payable in advance on or
before the first day of each calendar month during the Lease Term. Each such
installment will be paid to Landlord at its address set forth in this Lease (or
such other address as Landlord may designate from time to time). If the Lease
Term commences on a day other than the first day of the month or terminates on a
day other than the last day of the month, then the installment(s) of Base Rent
for such month(s) will be adjusted accordingly. If any installment of Base Rent
is not received by Landlord within five days after its due date, then a late
payment charge of 5% of such past due amount will be assessed and will be
immediately due and payable from Tenant. In addition, any past-due Base Rent
will bear interest until paid at a rate equal to 2% over Citibank's published
prime lending rate ("Delinquent Rate"). All installments of Base Rent will be
paid by Tenant without demand and without any rights of reduction, counterclaim
or offset. Tenant hereby agrees to pay as additional rent any sales, use or
other tax (other than income taxes) now or hereafter imposed by any governmental
authority upon the rent and other sums payable by Tenant hereunder.
/section/7. OPERATING EXPENSES. Tenant will at all times throughout the Lease
Term (as well as the Early Occupancy Period) pay all of the following expenses
related to the Property ("OPERATING EXPENSES") directly to the party performing
the services, providing the materials or otherwise having the right to receive
the payment of such expenses:
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(a) All real and personal property taxes, assessments and other
governmental impositions and charges which are applicable to
the Property;
(b) All rents and charges for water, sewer, gas, electricity,
telephone and other utility services furnished to the Property;
(c) All licenses, permit fees and other charges imposed by any
governmental or quasi-governmental authority with respect to
Tenant's use of the Property or Tenant's business operations;
(d) Any assessments or other charges imposed by any landowner's
association having jurisdiction over the Property relating
solely to the Property or the Building;
(e) All reasonable and customary property management fees,
consistent with third party arm's length negotiations, payable
to Xxxxxxx Management Inc. or any other property management
firm associated with the management of the Property;
(f) All premiums and other charges related to any insurance related
to the Property or Tenant's use thereof which is required to be
maintained by Tenant hereunder;
(g) All costs associated with Tenant's performance of its
maintenance, repair and other obligations pursuant to
/section/9 of this Lease;
(h) The cost of providing security for the Building;
(i) The cost of all building supplies used in connection with the
operation, management or maintenance of the Building;
(j) The cost of the service and maintenance of the elevators;
(k) All other costs which are the responsibility of Tenant under
any section of this Lease; and
(l) All other costs related to the operation, management and
maintenance to the Building, which are considered to be
operating expenses under generally accepted accounting
principles.
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In addition to the foregoing list of Operating Expenses which Tenant is
obligated to pay directly to the service provider, etc., under the
aforementioned provisions of this /section/7, Tenant will also be obligated to
reimburse Landlord for the following costs which are incurred by Landlord within
thirty days after Landlord's submission to Tenant of a written invoice detailing
the amount of such costs;
(a) The cost of any cost-savings utility devise installed in the
Building by Landlord (amortized over such period as is
consisted with generally accepted accounting principles), but
only to the extent of the actual cost-savings obtained
therefrom; and
(b) The cost of any Building improvement (amortized over such a
period as is consistent with generally accepted accounting
principles) which Landlord is required hereunder to make as a
result of the enactment or promulgation of any governmental
law or regulation after the date of the execution of this
Lease.
All of the foregoing costs are herein referred to as Landlord's "Pass-Through
Expenses". Landlord agrees to retain books and records substantiating Landlord's
Pass-Through Expenses incurred in each calendar year during the Lease Term for a
period of at least three years from the date Landlord submits a statement of the
same to Tenant. Tenant or its designee will have the right, during business
hours and upon reasonable prior notice to Landlord, to time to inspect
Landlord's books and records relating to Landlord's Pass-Through Expenses or to
have such books and records audited at Tenant's expense by a certified public
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accountant designated by Tenant and approved by Landlord. Any audit that
discloses a discrepancy of more than 3% of the amount of Landlord's Pass-Through
Expenses will be at Landlord's expense and Landlord will reimburse Tenant for
such costs within thirty days after its receipt of an invoice for the same from
Tenant. Any discrepancy in the amount of Landlord's Pass-Through Expenses
disclosed by such audit will be promptly corrected by payment of any overage by
Landlord to Tenant within thirty days after its receipt of a written statement
demanding payment thereof from Tenant.
Notwithstanding anything to the contrary contained in this Lease, Tenant will
not be obligated to pay any of the following expenses, all of which will be
payable by Landlord and are excluded from the definition of "Operating
Expenses":
(i) Landlord's debt service (including principal, points and fees)
on any financing related to the Property;
(ii) Franchise or income taxes payable by Landlord;
(iii) Costs associated with the initial construction of the
Improvements;
(iv) Costs required to correct any defects in the materials or
workmanship related to the initial construction of the
Improvements (including any such defects in the Atrium);
(v) Costs of remedying any violation of any law, ordinance, rule or
regulation relating to the construction of the Improvements and
specifically including any latent construction defects;
(vi) Cost of replacing and repairing defective and exhausted
mechanical, plumbing and electrical systems which are part of
the Base Building Improvements, excepting those costs
necessitated by normal wear and tear of the same;
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(vii) All costs and expenses which are considered to be capital
expenditures under generally accepted accounting principles
(other than those Landlord Pass-Through Expenses previously
defined in this /section/7);
(viii) Any ground lease rental;
(ix) Any costs incurred by Landlord for the repair of damage to the
Building to the extent that Landlord is entitled to be
reimbursed by insurance or other third parties;
(x) Depreciation and amortization of any type;
(xi) Rentals and other related expenses which, but for such rental,
would be considered capital expenditures under generally
accepted accounting principles;
(xii) Advertising and promotional expenditures and costs of signs in
or on the Building identifying the owner of the Building;
(xiii) Any costs incurred in connection with compliance with laws
which is the obligation of Landlord under /section/10 hereof
(except as otherwise included within the definition of Landlord
Pass-Through Expenses);
(xiv) Wages, salaries, fees and fringe benefits paid to
administrative or executive personnel or officers or partners
of Landlord or the management agent or anyone else over the
level of building supervisor, which are not directly associated
with time spent by such personnel at the Building;
(xv) The cost of any repair made by Landlord to the Building due to
the total or partial destruction of the Building or the
condemnation of all or a portion of the Building;
(xvi) The costs of the acquisition of sculpture, paintings or other
objects of art by Landlord;
(xvii) Rent or expenses in lieu of rent for any storage space or other
facilities for the benefit of Landlord;
(xviii) Costs incurred to test, survey, clean-up, contain, xxxxx,
remove or otherwise remedy Hazardous Substances brought into
the Building by Landlord;
(ixx) Any costs directly resulting from the negligence or misconduct
of Landlord, its employees, agents, contractors or employees;
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(xx) Costs or fees relating to the defense of Landlord's title or
interest in the real estate containing the Building; and
(xxi) Costs or expenses incurred by Landlord in financing,
refinancing, pledging, selling, granting or otherwise
transferring or encumbering its ownership rights in the
Building.
Tenant will pay all such Operating Expenses punctually as and when the same
become due and payable so as to avoid the imposition of late charges, penalties
or interest thereon. Tenant will have the right at its sole expense to contest
the amount of any such Operating Expense by legal or administrative proceeding,
so long as Tenant takes all appropriate action to insure that no lien is placed
on the Property to secure payment of the same. Tenant will also have the right
to seek tax abatements, reductions, exemptions and other similar tax relief with
respect to the Property and Tenant's business operations. Landlord agrees to
permit any applications in connection therewith be filed in its name; provided,
however, that Landlord will in no event be obligated to incur any out-of-pocket
expenses in connection with any such applications.
Tenant will provide Landlord with evidence of the payment of any Operating
Expense within ten days after Landlord's written request therefor. The
determination of whether any particular Operating Expense is attributable to the
Lease Term and, hence, is the obligation of Tenant hereunder, will be made based
upon the accrual method of accounting.
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Except as otherwise expressly provided herein, Landlord will not at any time
during the Lease Term charge Tenant or its employees or invitees any amount for
parking, unless any such charge is expressly agreed to in writing by Tenant.
/section/8. MAINTENANCE AND REPAIR. Except for those specific obligations placed
upon Landlord under this /section/8, Tenant will, at its sole expense, maintain
the Property in a good condition and order of repair. Except as otherwise
provided herein, Tenant's maintenance obligation will extend to and include,
without limitation, the maintenance and repair of all interior, exterior,
structural, nonstructural and mechanical elements and systems of the Building
and all parking areas, sidewalks, landscaping and other improvements associated
with the Property, to the extent the maintenance and repair thereof is not
considered to be a capital improvement under generally accepted accounting
principles. Any repairs made to the Property by Tenant pursuant to this
/section/8 will be made in a good and workmanlike manner with materials at least
equal in quality and grade to those originally contained in the Property. Tenant
will also be responsible and pay for all landscaping, cleaning, janitorial, and
parking lot sweeping services required to maintain and operate the Property in a
reasonably good manner.
Notwithstanding anything to the contrary contained herein, Landlord (and not
Tenant) will be responsible for and pay for the following items:
(a) Remedying all defects in the materials or workmanship related
to the construction of the Improvements; and
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(b) Repairing and, if necessary, replacing all structural and
mechanical elements and systems of the Building and all
parking areas, sidewalks, landscaping and other improvements
associated with the Property, if the making of any such repair
or replacement would constitute a capital expenditure under
generally accepted accounting principles (other than those
capital expenditures which are expressly made the obligation
of Tenant hereunder).
To the extent Tenant detects any condition which needs to be repaired or
replaced and which is the obligation of Landlord hereunder, Tenant will notify
Landlord of the existence of such condition. Within three days after its receipt
of the aforementioned notice from Tenant, Landlord will commence and thereafter
proceed with due diligence to repair or replace any condition which is its
responsibility hereunder. Notwithstanding anything to the contrary contained
herein, Tenant (and not Landlord) will be required to pay all costs of repairing
or replacing any condition if the need therefore arises solely due to the fault
or negligence of Tenant or its agents, employees, guests or invitees.
/section/9. USE OF PROPERTY. Tenant will use the Property solely for general
office purposes. Tenant will not cause or permit any waste or damage to the
Property and will not occupy or use the Property for any business or purpose
which is unlawful, hazardous, unsanitary, noxious or offensive.
/section/10. GOVERNMENTAL REQUIREMENTS. Except as otherwise expressly provided
in this /section/10, Tenant will, at its sole expense, comply with all laws and
other governmental requirements which are now or hereafter in force pertaining
to its use and occupancy of the Property,
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including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, the Clean Air Act, the Hazardous Materials
Transportation Act, the Resource Conservation and Recovery Act, the Water
Pollution Control Act and the Americans with Disabilities Act. Notwithstanding
anything to the contrary contained herein, Landlord (and not Tenant) will, at
its sole expense, be responsible for: (a) remedying any noncompliance of the
Improvements with any law or other governmental requirement which existed as of
the Commencement Date; (b) complying with any law or other governmental
requirement, which applies to the ownership of office buildings generally in
Seminole County, Florida and not specifically to Tenant's occupancy or use of
the Property; or (c) making any capital improvements to the Building which are
mandated by law or other governmental requirement and which are not required to
be made as a result of any material change in Tenant's use of the Property or
any alterations, additions or improvements to the Building made by Tenant
pursuant to /section/12 hereof. Any improvements to the Building made by Tenant
under this /section/10 may be removed by it upon the termination of the Lease
Term, so long as Tenant repairs any damage to the Building caused by any such
removal and provided further that any such removal does not adversely affect the
structural integrity of the Building. Landlord represents that zoning
regulations applicable to the Building and any covenants, conditions or
restrictions appertaining to the Building permit the use of the Building for the
uses contemplated under this Lease. To the best of Landlord's knowledge and
belief, the Building will, as of the Commencement Date, be in compliance with
all requirements of any board of fire underwriters or similar body having
jurisdiction over the Building or any other law, rule, statute, regulation or
ordinance of any governmental agency or body having jurisdiction over the
Building. Landlord will insure that the construction of the Tenant Improvements
are in compliance with the
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requirements of the Americans with Disabilities Act, as the same is in effect as
of the Commencement Date.
/section/11. SIGNS. Landlord will provide to Tenant a signage allowance of
$25,000, for the erection of (a) a monument sign identifying Tenant at the main
entrance to the Building and (b) a sign identifying Tenant on the exterior
facade of the Building. The location, design and composition of both signs will
be consistent with other similar signage located within the Heathrow
International Business Center and will be subject to Landlord's prior review and
approval. Both the monument and exterior facade signs will be erected by
Landlord as part of its construction of the Base Building Improvements. To the
extent the cost of such signs exceeds the $25,000 signage allowance referred to
above, Tenant will be required to pay any such excess to Landlord within ten
days after its receipt of a paid invoice from Landlord detailing such excess
signage costs. Except as otherwise provided above, neither Landlord, nor Tenant
will place any other sign or advertising material on the exterior of the
Building or the Land, without the prior written consent of the other party.
/section/12. ALTERATIONS. Except for "Minor Alterations" (as that term is
hereinafter defined), Tenant may not make any alteration, addition or
improvement to the Property, without Landlord's prior written consent. For the
purposes of this /section/12, a "MINOR ALTERATION" will mean: (a) any
alteration, addition or improvement to the Property which costs less than
$25,000 and which does not alter the exterior aesthetics or structural integrity
of the Improvements; (b) the installation, removal or relocation of
nonstructural office partitioning, provided such work does
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not materially or adversely affect the structural integrity of the Building or
any of its mechanical or electrical systems; (c) painting and installation of
wall coverings; (d) the installation and removal of office furniture; (e) the
relocation of electrical outlets; (f) the installation and removal of movable
work stations; (g) the installation or removal of Tenant's movable trade
fixtures; and (h) the installation and removal of carpeting and other floor
coverings. All improvements, alterations and additions made at one time in
connection with any one job will be aggregated for the purposes of determining
whether the $25,000 limit has been exceeded. Any alteration, improvement or
addition made to the Property in accordance with this /section/12 will at all
times remain the property of Landlord. If Landlord consents to any proposed
alteration, addition or improvement, the same will be made by Landlord at
Tenant's sole expense. Landlord will, at the time of its granting of its consent
to any proposed alteration, addition or improvement, inform Tenant whether any
such alteration, addition or improvement must be removed by Tenant upon the
termination of Tenant's right of possession pursuant to /section/19 of this
Lease.
/section/13. CONSTRUCTION LIENS. Tenant will indemnify and hold Landlord
harmless from any liability or expense associated with its construction of any
Minor Alteration to the Property. In particular, Tenant will execute and record
an appropriate notice of commencement pursuant to Chapter 713, Florida Statutes,
prior to undertaking any such construction identifying Tenant's interest in the
Building as a leasehold interest only. Tenant will immediately discharge any
construction lien filed against the Property in connection with any work
performed by or at the request of Tenant, other than the initial Tenant
Improvements.
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/section/14. ASSIGNMENT AND SUBLETTING. Except as otherwise expressly provided
in this section, Tenant may not assign this Lease or sublet any part of the
Property, without the prior written consent of Landlord. Notwithstanding
anything to the contrary contained herein, Tenant will have the right to assign
or sublet any part of the Property to any subsidiary or affiliate of Tenant or
sublet less than 25% of the aggregate rentable square footage contained within
the Building to any other third parties, without first obtaining the prior
written consent of Landlord; provided, however, that any such assignment or
subletting will in no event release Tenant from any liabilities or obligations
it may have under this Lease, and provided, further, that at least ten days
prior to the effecting of any such assignment or subletting, Tenant must give
prior written notice to Landlord of its intention to take any such action.
/section/15. SUBORDINATION. This Lease is subject and subordinate to all
mortgages now or hereafter affecting or covering the Property or any part
thereof and to all renewals, modifications, replacements or extensions thereof.
Tenant agrees to attorn to and recognize the mortgagee or the purchaser at
foreclosure sale as Tenant's landlord for the balance of the Lease Term. Tenant
hereby agrees, however, that such mortgagee or purchaser at foreclosure sale
will not be (a) liable for any act or omission of Landlord, (b) subject to any
monetary offsets which Tenant might have against Landlord, (c) bound by any rent
or additional rent which Tenant may have paid to Landlord for more than the
current month, (d) bound by any amendment or modification of this Lease made
without its consent, provided Tenant is notified in advance of the existence of
the mortgagee and the requirement that the mortgagee must consent to any such
amendment or modification, or (e) liable for the return of any security deposit,
except to the extent that the security deposit has been transferred to any
mortgagee or subsequent
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purchaser. Landlord hereby agrees to obtain a nondisturbance agreement from any
mortgagee of all or any part of the Property, which nondisturbance agreement
will confirm Tenant's right to continue to occupy the Property pursuant to the
terms of this Lease at all times during the Lease Term, so long as Tenant is not
in default thereunder.
/section/16. LIMITATION OF LANDLORD'S PERSONAL LIABILITY. At all times from and
after the sale or transfer of the Property by Xxxxxxx Equities Inc. to any
unaffiliated third party, Tenant will look solely to Landlord's interest in the
Property for the remediation of any alleged breach of this Lease by or the
recovery of any judgment against Landlord; it being the express intent of the
parties hereto that, following such sale or other transfer of Xxxxxxx Equities
Inc.'s interest in the Property, neither Landlord, nor any of its shareholders,
employees or agents will ever be personally liable for any such remediation or
judgment. Notwithstanding anything to the contrary contained herein, if Tenant
obtains a final judgment against Landlord with respect to Landlord's breach of
any of its obligations under this Lease, but Tenant is unable to collect because
Landlord has no equity in the Property or is otherwise judgment-proof, then
Tenant, at its option, will be able to offset the amount of such judgment
against its obligation to pay Base Rent and any other sums under this Lease.
/section/17. INDEMNIFICATION AND INSURANCE. Landlord will not be liable for and
Tenant will indemnify and hold Landlord harmless from any liability or expense
associated with any damage or injury to any person or property (including,
without limitation, any person or property of Tenant or anyone claiming under
Tenant) which arises directly or indirectly in connection with the Property or
Tenant's use or occupancy thereof; provided, however, that Tenant will not
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be obligated to indemnify Landlord as to any liability or expense occasioned by
the fault or negligence of Landlord. All property stored or placed by Tenant in
or about the Property will be so stored or placed at the sole risk of Tenant.
Tenant will not be liable for and Landlord will indemnify and hold Tenant
harmless from any liability or expense associated with any damage or injury to
any person or property (including, without limitation, any person or property of
Landlord or anyone claiming under Landlord) which arises directly or indirectly
from any act or omission of Landlord, its agents, officers or employees, guests,
invitees, contractors and subcontractors.
Tenant will at its sole expense maintain in full force and effect at all times
during the Lease Term: (a) comprehensive public liability insurance for personal
injury and property damage with liability limits of not less than $5,000,000 for
injury to one person, $10,000,000 for injury from one occurrence and $2,000,000
for property damage; (b) fire and extended coverage insurance the Improvements
in an amount equal to the full replacement value thereof; and (c) rent loss
insurance in an amount equal to 12 months Base Rent under this Lease. Each
insurance policy required to be maintained by Tenant hereunder will name
Landlord and such other persons as Landlord may designate as additional insureds
and will specifically provide that such insurance policy cannot be terminated
without giving at least ten days prior written notice to Landlord.
Landlord will at its sole expense maintain in full force and effect at all times
during the Lease Term: (a) comprehensive public liability insurance for personal
injury and property damage with liability limits of not less than $5,000,000 for
injury to one person, $10,000,000 for injury from
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one occurrence and $2,000,000 for property damage; and (b) worker's compensation
insurance at or above statutory limits. At Tenant's request, Landlord will
furnish Tenant a certificate or certificates of insurance certifying that the
insurance coverage's required above are in full force and effect. Any insurance
required by the terms of this Lease to be carried by Landlord may be provided
under a blanket policy (or policies) covering other properties of Landlord or
its related or affiliated entities. If such insurance is maintained under a
blanket policy, Landlord will procure and deliver to Tenant, at Tenant's
request, a statement from the insurer or general agent of the insurer setting
forth the coverage maintained and the amounts thereof allocated to the risks
intended to be insured hereunder.
/section/18. HAZARDOUS SUBSTANCES. Tenant will not use, store, generate,
manufacture, transport, dispose of or release any Hazardous Substance (as that
term is hereinafter defined) in or about the Property, except for immaterial
amounts that are exempt from or do not give rise to any violation of applicable
law. Tenant agrees to indemnify and hold Landlord harmless from any liability or
expense incurred by or claimed against Landlord as a result of Tenant's breach
of the covenant contained in this paragraph (including, without limitation, the
fees of Landlord's attorneys and consultants and the cost of any required
remediation or clean-up). The foregoing covenant will survive the termination of
this Lease.
Landlord hereby represents and warrants that, as of the Commencement Date, there
will be no Hazardous Substance in or about the Property, except for immaterial
amounts that are exempt from or do not give rise to any violation of applicable
law and that, it will not, at any time during the Lease Term, use, store,
generate, manufacture, transport, dispose of or release any
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Hazardous Substance in or about the Property, except for immaterial amounts the
are exempt from or do not give rise to any violation of applicable law. Landlord
agrees to indemnify and hold Tenant harmless from any liability or expense
incurred by or claimed against Tenant as a result of Landlord's breach of the
representation and warranty contained in this paragraph (including, without
limitation, the fees of Tenant's attorneys and consultants and the cost of any
required remediation or clean-up).
For the purposes of this /section/18, the term "HAZARDOUS SUBSTANCE" means any
hazardous substance, toxic substance (as those terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act), hazardous
waste (as that term is defined in the Resource Conservation Recovery Act),
polychlorinated biphenyls, asbestos, radioactive material or any other
pollutant, contaminant or hazardous, dangerous or toxic chemical, material or
substance which is regulated by any federal, state or local law, regulation,
ordinance or requirement.
Landlord represents and warrants that: (a) the HVAC system and other of Building
systems servicing Building will, as of the Commencement Date, comply with any
and all local, state and federal indoor air quality laws and will meet the
minimum standards for operation contained within ASHRAE standard 62-1989, as
amended; and (ii) Landlord will not take any actions which would have the affect
of adversely affecting the safe and healthy indoor air quality within the
Building.
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/section/19. SURRENDER OF PREMISES. Upon the termination of Tenant's right of
possession under this Lease, Tenant will immediately surrender possession of the
Property to Landlord in good repair and "broom clean" condition, reasonable wear
and tear excepted. Tenant will at the same time remove all of its movable trade
fixtures from the Property, Tenant will promptly repair any damage caused to the
Property by the removal of any of such movable trade fixtures.
/section/20. CASUALTY. If the Building is damaged by fire or any other casualty,
Tenant will immediately give written notice thereof to Landlord. Within ten days
after its receipt of such written notice from Tenant, Landlord will give written
notice to Tenant whether the damaged area can reasonably be repaired within 210
days after the date on which all requisite permits and licenses for the repair
thereof are obtained from the appropriate governmental authorities. If Landlord
notifies Tenant that it does not believe that the damaged area can reasonably be
repaired within such 210-day period, then both Landlord and Tenant will have the
option of terminating this Lease by giving written notice thereof to the other
at any time within thirty days after the date of Tenant's receipt of the
aforementioned notice from Landlord. If Landlord determines that the damaged
area can reasonably be repaired within such 210-day period or if neither party
elects to terminate this Lease despite the fact that Landlord has determined
that the damaged area cannot be reasonably repaired within such 210-day period,
then Landlord will proceed with due diligence to repair the damaged area as
expeditiously as reasonably practicable at its sole expense; provided, however,
that Landlord will in no event be required to repair any improvements previously
made to the Leased Premises by or at the request of Tenant pursuant to
/section/12 hereof. If the Building is rendered untenantable in whole or in part
as
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a result of a fire or other casualty, then all Base Rent and other payments
accruing after the occurrence of any such fire or other casualty and prior to
the completion of the repair of the Property will be equitably and
proportionately abated to reflect the untenantable portion of the Property.
Landlord will not be liable to Tenant for any inconvenience or interruption to
Tenant's business occasioned by such fire or other casualty or the concomitant
repair of the damaged area. In addition to any termination right granted to
Tenant under the above provisions, Tenant will also have the right to terminate
this Lease if the Building is damaged by fire or any other casualty within the
last twelve months of the Lease Term, such that at least 51% of the rentable
square footage contained within the Building is rendered untenantable. Upon the
occurrence of any event described in the immediately preceding sentence, Tenant
may exercise its termination right by delivering written notice of termination
to Landlord within thirty days after the occurrence of any such fire or other
casualty.
/section/21. CONDEMNATION. If all or any substantial part of the Property
(including, without limitation, any parking area serving the Building) is taken
by or under threat of condemnation so as to render the Property wholly
untenantable, then this Lease will automatically terminate as of the date of the
vesting of title to such part of the Property in the condemning authority. If a
taking does not render the Property wholly untenantable, then this Lease will
not terminate but will continue in full force and effect in accordance with its
terms, except that the Base Rent will be proportionately reduced to reflect the
number of rentable square feet of space, if any, in the Building which was so
taken. Landlord will not be liable to Tenant for any inconvenience or
interruption to Tenant's business occasioned by any such taking. Landlord will
promptly notify Tenant of the institution of any condemnation proceeding
effecting the Property. If any taking
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does not result in the termination of this Lease, then Landlord will, at its
sole expense, make all repairs to the Property which are necessary to constitute
the Property as a complete architectural unit. Landlord will be entitled to
receive the entire award made by the condemning authority for any such taking,
provided, however, that Tenant will have the right to receive any separate award
made by the condemning authority with respect to the value of any improvements
made to the Building at Tenant's sole cost and expense. Notwithstanding anything
to the contrary contained herein, if any part of the Property is taken by or
under threat of condemnation at any time during the last six months of the Lease
Term, such that at least 51% of the rentable square footage of the Building is
rendered untenantable, then Tenant will have the right to terminate this Lease
by delivering written notice of termination to Landlord within thirty days after
the vesting of title to such part of the Property in the condemning authority.
/section/22. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives its
right to receive damages against the other party with respect to any loss or
claim occasioned by the occurrence of any fire or other casualty to the
Property, which is covered under a valid and collectible fire and extended
coverage insurance policy or which would have been covered under any such
insurance policy which is otherwise required to be maintained by either party
hereunder. Any insurance policy procured by either Tenant or Landlord hereunder
will contain an express waiver of any right of subrogation by the insurance
company against Landlord or Tenant, as the case may be.
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/section/23. HOLDING OVER. Except as otherwise authorized under this Lease,
Tenant will not hold over in its occupancy of the Property after the expiration
of the Lease Term, without the prior written consent of Landlord. If Tenant
holds over without the prior written consent of Landlord, then Tenant will pay
150% of the Base Rent then in effect for each month during the entire holdover
term. Any holding over with the prior written consent of Landlord will
constitute this Lease as a lease from month-to-month.
/section/24. DEFAULT. If Tenant fails to pay any installment of Base Rent or any
other sum payable by it hereunder within 15 days after the date when due, or if
Tenant defaults in the performance of any of its other obligations under this
Lease and such default continues for 30 days after written notice thereof is
given to Tenant, then, in addition to any other legal rights and remedies
available to Landlord at law or in equity, Landlord may: (a) terminate this
Lease and declare immediately due and payable the present value of all Base Rent
and other sums payable over the remainder of the Lease Term, discounted at a
rate equal to the Delinquent Rate; or (b) reenter and attempt to relet the
Leased Premises without terminating this Lease, in which event Tenant will
remain obligated to pay to Landlord any deficiency between all sums payable by
Tenant pursuant to this Lease and any sums collected by Landlord from any
reletting of the Property (net of any sums paid by Landlord in connection with
such reletting, including, without limitation, leasing commissions, attorneys'
fees and the cost of any improvements made to the Property in order to
reasonably accommodate the needs of any tenant upon such reletting) provided,
however, that any such costs incurred by Landlord will be normal, reasonable and
customary for a comparable Building in comparable locations in the greater
Orlando metropolitan area. Landlord agrees to use its best efforts to relet the
Building.
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Landlord will also have the right to take any action which it deems necessary or
appropriate to remedy Tenant's nonperformance, without any such action by
Landlord being construed as a curing or waiver by Landlord of Tenant's
nonperformance. Any reasonable expenses incurred by Landlord in taking any such
action will be immediately due and payable by Tenant to Landlord, together with
interest thereon until paid at the Delinquent Rate.
If Landlord defaults in the performance of any of its obligations under this
Lease and such default continues for 30 days after its receipt of written notice
from Tenant of the alleged existence of such default (unless such default is not
capable of being cured within the aforementioned 30-day period, in which event,
Landlord will have such longer grace period as is reasonably required to cure
such default, provided that Landlord commences the cure thereof within the
aforementioned 30-day period and at all times thereafter diligently pursues such
cure to completion), then, in addition to any other legal rights and remedies
available to Tenant at all or in equity, Tenant will have the right to take all
reasonable actions required to cure such default and, within 30 days after
Landlord's receipt of written demand from Tenant, Landlord will reimburse Tenant
for all reasonable out-of-pocket expenses incurred by Tenant in curing such
default (including ,without limitation, reasonable attorney's fees). If Landlord
fails to make payment of any such sum within the aforementioned 30-day period,
then the amount owed to Tenant hereunder will thereafter bear interest at the
Delinquent Rate until paid.
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/section/25. PREVAILING PARTY'S FEES. If any legal action is commenced by either
Landlord or Tenant to enforce its rights hereunder, then all attorneys' fees and
other expenses incurred by the prevailing party in such action will be promptly
paid by the non-prevailing party.
/section/26. SUCCESSORS AND ASSIGNS. This Lease will be binding upon and inure
to the benefit of the successors and assigns of Landlord and the successors and
permitted assigns of Tenant.
/section/27. NO WAIVER. No waiver of any covenant or condition of this Lease by
either party will be deemed to constitute a future waiver of the same or any
other covenant or condition of this Lease. In order to be effective, any such
waiver must be in writing and must be delivered to the other party to this
Lease.
/section/28. BROKERAGE COMMISSIONS. Landlord will pay a commission to Properties
Atlantic, Inc., Tenant's brokerage representative, pursuant to a separate
written agreement entered into by Landlord and Properties Atlantic, Inc. Except
for their respective dealing with Properties Atlantic, Inc., each of Landlord
and Tenant hereby represents and warrants that it has not dealt or consulted
with any real estate broker or agent in connection with this Lease. Each of
Landlord and Tenant agrees to indemnify and hold the other harmless from and
against any liability or expense occasioned by its breach of the foregoing
representation and warranty.
/section/29. SPACE PLANNING EXPENSES. It is Tenant's intention to retain its own
interior design firm for the preparation of space planning and interior design
drawings with respect to the Building.
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Landlord agrees to pay Tenant a non-refundable amount equal to $1.00 per
rentable square foot contained within the Building to defray Tenant's costs of
the preparation of such space plan and interior design drawings. Such amount
will be payable 50% upon the execution of this Lease by both Landlord and Tenant
and 50% within three days after the later of Commencement Date or Landlord's
receipt of Tenant's first month's Base Rent hereunder.
/section/30. MOVING EXPENSES. Within three business days after the latter of the
Commencement Date or Landlord's receipt of Tenant's first month's Base Rent
hereunder, Landlord will pay to Tenant an amount equal to $1.00 per rentable
square foot contained within the Building to defray Tenant's costs of relocating
to the Building.
/section/31. PARKING. Landlord will provide Tenant with four parking spaces for
every 1,000 rentable square feet of space contained within the Building. The
parking area located on the Land will be properly illuminated in accordance with
the Final Base Building Plans. In the event of any change in the applicable
zoning requirements for Seminole County, Florida, which require an increase in
the number of parking spaces required for use in connection with the Building,
Landlord will take all requisite actions to comply with such changed County
zoning requirements. To the extent Tenant determines that it needs additional
parking spaces over and above those provided herein and under the Final Base
Building Plans, and to the extent there is additional room on the Land to
accommodate any such needed additional parking spaces, then Landlord will
construct such additional parking area, provided that it first obtains the
written agreement of Tenant to an increase in Base Rent which is acceptable to
Landlord and Tenant.
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/section/32. SECURITY DEPOSIT. Concurrently with its execution of this Lease,
Tenant has deposited with Landlord a security deposit in an amount equal to one
month's Base Rent hereunder. The security deposit will be retained by Landlord
as partial security for Tenant's performance of all of its obligations under
this Lease. If Tenant defaults on the performance of any of its obligations
under this Lease (after the expiration of any applicable cure period specified
in this Lease), then Landlord will have the right to use all or a portion of the
Security Deposit to remedy such default. Any portion of the Security Deposit
remaining unutilized following the expiration of the Lease Term and Tenant's
full performance of all of its obligations under this Lease will be returned to
Tenant, without interest.
/section/33. REASONABLENESS OF CONSENT. Neither Landlord, nor Tenant will
unreasonably withhold or delay any consent or approval which is required to be
given by it pursuant to the terms of this Lease.
/section/34. AMENDMENT. This Lease may not be amended, except by a written
instrument signed by both Landlord and Tenant.
/section/35. GOVERNING LAW. This Lease will be governed by and construed in
accordance with the laws of the State of Florida.
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/section/36. NOTICES. All notices required or permitted to be given under this
Lease must be in writing and must be delivered to Landlord and Tenant at their
addresses set forth below (or such other address as may hereafter be designated
by such party):
If to Landlord: Xxxxxxx Equities Inc.
Xxxxx 0000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
If to Tenant: HTE, Inc.
Xxxxxxx Bank Center
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Any such notice must be personally delivered or sent by registered or certified
mail, overnight courier or facsimile transmission. Any such notice will be
deemed effective when received (if sent by hand delivery, overnight courier or
facsimile transmission) or on the date which is three days after such notice is
deposited in the United States mail (if sent by registered or certified mail).
/section/37. EXHIBITS. All exhibits referred to in this Lease are incorporated
herein by such reference.
/section/38. ADDRESS CHANGES. Landlord hereby agrees that it will not change the
address of the Building, without first obtaining Tenant's prior written consent
to any such address change.
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/section/39. PARTIES' AUTHORITY. Each of the parties hereby represents and
warrants that the person executing this Lease on its behalf is the only person
required to execute this Lease in order to bind such parties under the terms of
such party's governance documents.
/section/39. DEFINITIONS. For the purposes of this Lease, the following terms
will have the meanings attributed to such terms in the noted sections of this
Agreement:
1. "BASE AMOUNT" is defined in /section/3.
2. "BASE BUILDING IMPROVEMENTS" is defined in /section/2.
3. "BASE RENT" is defined in /section/6.
4. "BUILDING" is defined in the "Background" section.
5. "COMMENCEMENT DATE" is defined in /section/5.
6. "DELAY EVENT" is defined in/section/4.
7. "DELINQUENT RATE" is defined in/section/6.
8. "DIMINISHED COSTS" is defined in/section/3.
9. "EARLY OCCUPANCY PERIOD" is defined in/section/5.
10. "EXCESS COST NOTICE" is defined in/section/3.
11. "EXCESS COSTS" is defined in/section/3.
12. "FINAL BASE BUILDING PLANS" is defined in/section/2.
13. "FINAL PLANS" is defined in/section/4.
14. "FINAL TENANT IMPROVEMENT PLANS" is defined in /section/3.
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15. "HAZARDOUS SUBSTANCE" is defined in /section/18.
16. "IMPROVEMENTS" is defined in /section/4.
17. "INITIAL LEASE TERM" is defined in /section/5.
18. "LAND" is defined in the "Background" section.
19. "LANDLORD" is defined in the preamble.
20. "LANDLORD'S PASS-THROUGH EXPENSES" is defined in /section/7.
21. "LEASE" is defined in the preamble.
22. "LEASE TERM" is defined in /section/5.
23. "MINOR ALTERATIONS" is defined in /section/12.
24. "OPERATING EXPENSE" is defined in /section/7.
25. "PRELIMINARY BASE BUILDING SPECIFICATIONS" is defined in /section/2.
26. "PROPERTY" is defined in /section/1.
27. "PUNCHLIST ITEMS" is defined in /section/4.
28. "SUBSTANTIALLY COMPLETED" and "SUBSTANTIAL COMPLETION" is defined in
/section/4.
29. "TENANT" is defined in the preamble.
30. "TENANT IMPROVEMENTS" is defined in /section/3.
31. "TI ALLOWANCE" is defined in /section/3.
32. "YEAR" is defined in /section/6.
[SIGNATURES AND ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE]
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SIGNATURES AND ACKNOWLEDGEMENTS
Landlord and Tenant have executed this Lease as of the date specified in
the first page of this Lease.
Signed and acknowledged in
the presence of: LANDLORD:
XXXXXXX EQUITIES INC.
---------------------------
BY
--------------------------- ---------------------------
(Name) (Title)
---
TENANT:
HTE, INC.
--------------------------
BY
-------------------------- ---------------------------
(Name) (Title)
---
STATE OF _________________
COUNTY OF ________________: SS
Before me, a notary public in and for said state and county, personally appeared
_________________, the ___________________ of Xxxxxxx Equities Inc., the
Landlord in the foregoing Lease, who acknowledged the signing of the Lease to be
his or her free act and deed on behalf of the Landlord.
Date: ____________________ _______________________________
Notary Public
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STATE OF ___________________
COUNTY OF __________________: SS
Before me, a notary public in and for said state and county, personally appeared
__________________, the ______________________ of HTE, Inc., the Tenant in the
foregoing Lease, who acknowledge the signing of the Lease to be his or her free
act and deed on behalf of the Tenant.
Date: _______________________ _______________________________
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION OF LAND
Initialed and Approved by Landlord: Initialed and Approved by Tenant:
----------------------------------
--------------------------------
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EXHIBIT B
PRELIMINARY BASE BUILDING SPECIFICATIONS
Initialed and Approved by Landlord: Initialed and Approved by Tenant:
-----------------------------------
------------------------------------
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