LEASE AGREEMENT (CYPRESS POINT BUSINESS PARK)
Exhibit 10.21
LEASE AGREEMENT
(CYPRESS POINT BUSINESS PARK)
(CYPRESS POINT BUSINESS PARK)
THIS LEASE AGREEMENT (the “Lease”), made
as of this 14th day
of April, 1999, between HGL PROPERTIES L.P., LTD., a Florida limited partnership (the “Landlord”)
with its place of business at 0000 Xxxxxxxxx Xxxx Xxxxx Xxxxx, 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 201 and 202, comprising approximately 10,000 square feet,
as depicted on Exhibit A attached hereto (the “Leased Premises”) and located at 0000 Xxxxxxx Xxx,
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 200” (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 eighty-three (83) 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
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rent shall be increased annually by 4 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 100 and
200 and is initially agreed to be 12.5% 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 1999 will equal $ 5 per square foot, or
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$
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 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)
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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, 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)
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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,
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
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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 April 1, 1999 (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. 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
prepossession 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
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
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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. Tenant’s home office address
is 0000 Xxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000. 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
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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.
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
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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 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
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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 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
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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.
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
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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 per cent (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
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Building, or any portions thereof or any contents, property or other items located thereon or
therein, either presently or in the future.
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.
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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 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,
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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.
(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.
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(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 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
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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 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.
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(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
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(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; (ix)
if Tenant abandons or discontinues its occupancy or use of the Leased Premises and Tenant is
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; or (x) Tenant is in default beyond any applicable cure or grace period
under the Lease Agreement dated May 14, 1998 between Tenant and Landlord.
(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
19
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
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.
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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.
22. Intentionally Deleted.
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.
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(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 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 per cent (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,
22
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 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.
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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 CB Commercial Real Estate
Group, 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
24
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
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
25
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.
44. Early Termination. Provided Alliance Mortgage Company is
not in default under its lease with Landlord dated May 14, 1998, as
such lease may be amended, and Alliance Mortgage Company has
exercised its expansion option pursuant to Paragraph 27 of such
lease to expand the Leased Premises by 20,000 square feet, Tenant
shall have the option, upon six (6) months’ prior written notice to
Landlord, to terminate this Lease upon a date which is not earlier
than the commencement date of the term with respect to the
expansion space. All rent and other obligations required to be
performed under this Lease shall continue to be performed by Tenant
as and when due through the termination date. Notwithstanding such
termination, all obligations of Tenant under this Lease to
indemnify Landlord shall survive the termination.
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 | ||||||
| By: | ||||||||
| Vice President | ||||||||
26
| TENANT: | ||||||||
| ALLIANCE MORTGAGE COMPANY, a Florida corporation |
||||||||
| /s/ Xxxxxxxxx X. Xxxxxx | By: | /s/ Xxxx X. Xxxxx | ||||||
| /s/ Xxxxx X. Xxxxx | Its: | |||||||
27
EXHIBIT A
FLOOR PLAN
EXHIBIT B
PARCEL 2
A PART OF THE XXXXXXX XXXXXXX XXXXX, SECTION 56, TOWNSHIP 3 SOUTH, RANGE 27 EAST,
XXXXX COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: FOR A POINT OF
REFERENCE, COMMENCE AT THE INTERSECTION OF THE EASTERLY RIGHT OF WAY LINE OF FINANCIAL
WAY (AN 80 FOOT RIGHT OF WAY AS NOW ESTABLISHED) WITH THE SOUTHERLY LINE OF THOSE LANDS
DESCRIBED IN DEED BOOK 503, PAGE 386 OF THE CURRENT PUBLIC RECORDS OF SAID COUNTY, SAID
INTERSECTION ALSO BEING THE NORTHWEST CORNER OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS
VOLUME 6485, PAGE 1641 OF SAID PUBLIC RECORDS; THENCE NORTH 88°48'59" EAST,
ALONG SAID SOUTHERLY LINE OF THOSE LANDS DESCRIBED IN DEED BOOK 503, PAGE 386 (THE
SAME. BEING THE NORTHERLY LINE OF SAID LANDS DESCRIBED IN OFFICIAL RECORDS VOLUME 6485,
PAGE 1641), A DISTANCE OF 465.75 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE
ALONG LAST SAID LINE, NORTH 88°48'59" EAST, A DISTANCE OF 529.00 FEET; THENCE SOUTH 01°11'01"
EAST, A DISTANCE OF 515.00 FEET; THENCE SOUTH 88°48'59" WEST, A DISTANCE OF
529.00 FEET; THENCE NORTH 01°11'01" WEST, A DISTANCE OF 515.00 FEET TO THE POINT OF
BEGINNING. CONTAINING 272,435 SQUARE FEET OR 6.25 ACRES, MORE OR LESS.
EXHIBIT C
PLANS AND SPECIFICATIONS
EXHIBIT D
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ____ day of April, 1999,
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 Xxxxxxxxx Xxxx Xxxxx Xxxxx, 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
April , 1999, 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:
| 1. | Mortgagee hereby consents to and approves the Lease. | ||
| 2. | 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. | ||
| 3. | Tenant certifies that the Lease is presently in full force and effect. | ||
| 4. | 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. |
| 5. | 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 |
2
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.
| 6. | 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 |
3
| 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. |
| 7. | 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. | ||
| 8. | 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. | ||
| 9. | 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. | ||
| 10. | Tenant shall not pay an installment of rent more than thirty (30) days prior to the due date. | ||
| 11. | 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. |
4
| 12. | 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. | ||
| 13. | 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. | ||
| 14. | This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby. |
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 |
|||||||
| By: | ||||||||
Print: |
||||||||
| Its: President | ||||||||
Print: |
||||||||
| As to Landlord: | “LANDLORD” | |||||
| HGL PROPERTIES L.P., LTD., a Florida limited partnership |
||||||
| By: | HGL PROPERTIES G.P., INC. a Florida corporation |
|||||
| By: | ||||||
Print:
|
Xxxxxxx X. Xxxxx | |||||
| Vice President | ||||||
Print: |
||||||
5
| As to Tenant: | “TENANT” | |||||
| ALLIANCE MORTGAGE COMPANY, a Florida corporation |
||||||
| /s/ Xxxxxxxxx X. Xxxxxx | By: | /s/ Xxxx X. Xxxxx | ||||
Print:
|
Xxxxxxxxx X. Xxxxxx
|
Xxxx X. Xxxxx Chairman |
||||
| /s/ Xxxxx X. Xxxxx | ||||||
Print: |
Xxxxx X. Xxxxx | |||||
STATE OF FLORIDA
|
) | |||
| ) SS | ||||
COUNTY OF
|
) | |||
The foregoing instrument was acknowledged
before me this ___ day of
, 1999, by
,
as
of FIRST UNION NATIONAL
BANK, a national banking association, on behalf of the association.
| (Print Name ) | ||
| NOTARY PUBLIC | ||
| State of Florida at Large | ||
| Commission # | ||
| My Commission Expires: | ||
| Personally Known _________ | ||
| 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 ___
day of April, 1999, 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.
| (Print Name _______________________ ) | ||
| NOTARY PUBLIC | ||
| State of Florida at Large | ||
| Commission # ____________________ | ||
| My Commission Expires: | ||
| Personally Known ____________ | ||
| 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 14th day of April, 1999, by Xxxx X. Xxxxx,
as Chairman of Alliance Mortgage
Company, a Florida corporation, on behalf of the corporation.
| /s/ Xxxxxxxxxx Xxxxxxxx | ||
| (Print Name XXXXXXXXXX XXXXXXXX) | ||
| 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 | ||
| XXXXXXXXXX XXXXXXXX | ||
| Notary Public, State of Florida | ||
| My Comm. expires Feb. 7, 2000 | ||
| Comm. No. CC 530876 |
7
EXHIBIT A
PARCEL 2
A PART OF THE XXXXXXX XXXXXXX XXXXX, SECTION 56, TOWNSHIP 3 SOUTH, RANGE 27 EAST, XXXXX
COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: FOR A POINT OF REFERENCE, COMMENCE
AT THE INTERSECTION OF THE EASTERLY RIGHT OF WAY LINE OF FINANCIAL WAY (AN 80 FOOT RIGHT OF WAY AS
NOW ESTABLISHED) WITH THE SOUTHERLY LINE OF THOSE LANDS DESCRIBED IN DEED BOOK 503, PAGE 386 OF THE
CURRENT PUBLIC RECORDS OF SAID COUNTY, SAID INTERSECTION ALSO BEING THE NORTHWEST CORNER OF THOSE
LANDS DESCRIBED IN OFFICIAL RECORDS VOLUME 6485, PAGE 1641 OF SAID PUBLIC RECORDS; THENCE NORTH
88°48' 59" EAST, ALONG SAID SOUTHERLY LINE OF THOSE LANDS
DESCRIBED IN DEED BOOK 503, PAGE 386 (THE SAME. BEING THE NORTHERLY LINE OF SAID LANDS DESCRIBED IN
OFFICIAL RECORDS VOLUME 6485, PAGE 1641), A DISTANCE OF 465.75 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUE ALONG LAST SAID LINE, NORTH 88°48' 59" EAST, A DISTANCE OF 529.00 FEET; THENCE SOUTH
01°11' 01" EAST, A DISTANCE OF 515.00 FEET; THENCE SOUTH 88°48' 59" WEST, A DISTANCE OF 529.00 FEET;
THENCE NORTH 01° 11' 01" WEST, A DISTANCE OF 515.00 FEET TO THE POINT OF BEGINNING. CONTAINING
272,435 SQUARE FEET OR 6.25 ACRES, MORE OR LESS.
EXHIBIT E
RULES AND REGULATIONS
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
2
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.
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
3
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.
4
ADDENDUM
I. Base Rent Schedule
The Monthly Base Rent and monthly estimated Operating Costs are as follows:
| Est. * | Est. * | |||||||||||
| Operating | Total | |||||||||||
| DATE | Base Rent | Costs | (inc. tax) | |||||||||
4-1-99 to 12-31-99 |
$ | 8,375.00 | $ | 1,125.00 | 10,117.50 | |||||||
1-1-00 to 12-31-00 |
$ | 8,500.00 | * | * | ||||||||
1-1-01 to 12-31-01 |
$ | 8,625.00 | * | * | ||||||||
1-0-02 to 12-31-02 |
$ | 8,758.33 | * | * | ||||||||
1-1-03 to 12-31-03 |
$ | 8,891.67 | * | * | ||||||||
1-1-04 to 12-31-04 |
$ | 9,025.00 | * | * | ||||||||
1-1-05 to 12-31-05 |
$ | 9,158.33 | * | * | ||||||||
1-1-06 to 2-29-06 |
$ | 9,158.33 | * | * | ||||||||
| * | The charge for Operating Costs is based on 1999 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, 1999. 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.
Landlord hereby grants to Tenant three (3) options to renew this Lease each
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 initial 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 and by two percent (2.0%) per
annum over the immediately preceding lease year for each of the second and third
years of the renewal term. The Monthly Base Rent shall be increased for the
fourth and fifth years of the initial renewal term by three percent (3.0%) per
annum over the immediately preceding lease year. Monthly Base Rent for the
first year of the second and third renewal terms will be ninety percent (90%)
of the then prevailing market rate for similar properties but not more than one
hundred five percent (105%) of the immediately preceding lease year (not
including abatements in rent for reason other than a permanent taking by way of
condemnation or deed in lieu thereof). The Monthly Base Rent will be increased
for the second through fifth years of the renewal terms by two and one-half (2
1/2%) 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)
(8120 Nations Way)
(CYPRESS POINT BUSINESS PARK)
(8120 Nations Way)
THIS FIRST 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 April
14, 1999 (the “Lease”), for the premises described therein and located at 0000
Xxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the “Leased Premises”); and
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 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 first renewal term 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.
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.
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/ 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 President | ||||||
| /s/ Xxxxx Xxxxxx | ||||||
(Print Name) Xxxxx Xxxxxx
|
(Corporate Seal) | |||||
| “TENANT” | ||||||
 |
||||||
2
EXHIBIT A
I. Base Rent Schedule
Alliance Mortgage Company Lease on 0000 Xxxxxxx Xxx
The Monthly Base Rent is as follows:
| Date | Base Monthly Rent (not including sales tax) | |
01-01-03 to 12-31-03 |
8,891.67 | |
01-01-04 to 12-31-04 |
9,025.00 | |
01-01-05 to 12-31-05 |
9,158.33 | |
01-01-06 to 12-31-06 |
9,341.50 | |
01-01-07 to 12-31-07 |
9,528.33 | |
01-01-08 to 12-31-08 |
9,718.89 | |
01-01-09 to 12-31-09 |
10,010.46 | |
01-01-10 to 12-31-10 |
10,310.77 | |
01-01-10 to 06-30-11 (est.) |
10,620.09 |
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.
3
SECOND AMENDMENT TO LEASE
(CYPRESS POINT BUSINESS PARK)
(8120 Nations Way)
(CYPRESS POINT BUSINESS PARK)
(8120 Nations Way)
THIS SECOND 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, 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).
RECITALS:
A. Landlord and Tenant or their predecessors entered into that certain Lease Agreement
dated April 14, 1999, as amended by First Amendment to Lease dated September 30, 2003, as
assigned by Assignment and Assumption of Lease Agreement dated September, 2003 (collectively,
the “Lease”), for the premises described therein and located at 0000 Xxxxxxx Xxx, Xxxxx 000,
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 45:
Use Restriction. Except as set forth herein, Landlord shall not use or permit the
property more particularly described on Schedule 1 attached hereto and made a part
1
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 Second 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 Second Amendment are
inconsistent, the provisions of this Second Amendment shall supersede and control.
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 | 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 Childress |
||||||
(Print Name) Xxxxxx Childress
|
(Corporate Seal) | |||||
 |
||||||
3
EXHIBIT A
Base Rent Schedule
Alliance Mortgage Company Lease on Suite 201, 8120 Nations Way
The Monthly Base Rent is as follows:
| Date | Base Monthly Rent (not including sales tax) | |
01-01-06 to 12-31-06 |
9,341.50 | |
01-01-07 to 12-31-07 |
9,528.33 | |
01-01-08 to 12-31-08 |
9,718.89 | |
01-01-09 to 12-31-09 |
10,010.46 | |
01-01-10 to 12-31-10 |
10,310.77 | |
01-01-11 to 12-31-11 |
10,620.09 | |
01-01-12 to 06-30-12 |
11,150.00 |
4
