Exhibit 10.9
FIFTH AMENDMENT TO LEASE TO BUILD AGREEMENT
THIS FIFTH AMENDMENT TO LEASE TO BUILD AGREEMENT, made and entered into
this 11th day of _August_ , 1982, by and between TAMPA WEST INDUSTRIAL
PARK, INC., a Florida corporation, whose business address is Post Office Box
23943, Xxxxx, Xxxxxxx 00000 (hereinafter referred to as "Landlord" or
"LESSOR"), and REFLECTONE, INC , a Delaware corporation, with its principal
place of business at 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Tenant" or "LESSEE)
W I T N E S S E T H
WHEREAS, LESSOR and LESSEE desire to further amend that certain Lease to
Build Agreement between LESSOR and LESSEE dated December 28, 1978, as amended
by First Amendment to Lease to Build Agreement dated March 26, 1979, Second
Amendment to Lease to Build Agreement dated May 10, 1979, Third Amendment to
Lease to Build Agreement dated February 15, 1980, Tampa West Industrial Park,
Inc. letter dated June 4, 1980, and Fourth Amendment to Lease to Build
Agreement dated July 10, 1980, covering the premises therein set forth in
Exhibit "A".
NOW THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00), each to the other in hand paid, receipt of which is hereby
acknowledged, LESSOR and LESSEE hereby amend the Lease to Build Agreement
dated December 28, 1978, as follows
1. The following described property, which is a portion of the
property described in Exhibit "A" in said Lease to Build Agreement is hereby
fully released from the terms and conditions of the Lease to Build Agreement:
PARCEL 2: A portion of Xxxxx 0, XXXXX XXXX XXXXXXXXXX
XXXX, XXXXX 0, according to map or plat thereof
recorded in Plat Book 46, Page 29, Public Records of
Hillsborough County, Florida, being more particularly
described as follows:
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From the Northwest corner of Xxxxx 0, XXXXX XXXX
XXXXXXXXXX XXXX, XXXXX 0, as recorded in Plat Book 46,
Page 29, Public Records of Hillsborough County,
Florida; run S.89 degree -24'-17"E. along the North boundary
of said Tract 4, 500.0 feet; thence S.00 degree -35'-43"W.
along the projection of the West boundary of Tract 2
and the Easterly right-of-way line of Xxxxxxxx Circle,
805.01 feet to point of intersection of the
prolongation of the North and West boundaries of Tract
3; thence S.89 degree -24'-17"E. along the projection of and
the North boundary of said Tract 3, 160.10 feet to the
Point of Beginning; thence continue S.89 degree -24'-l7"E.
along said North boundary of Tract 3, 291.00 feet;
thence S.00 degree -35'-43"W., 274.90 feet; thence
N.89 degree -24'-17"W., 51.00 feet; thence N.00 degree -35'-43"E.,
50.00 feet; thence N.89 degree -24'-17"W., 240.00 feet;
thence N.00 degree-35'-43"E., 224.90 feet to the Point of
Beginning.
2. The legal description of the Lease to Build Agreement identified
in Exhibit "A" is amended by adding the easements and party wall agreement
described and set forth in Exhibit "A" attached hereto and made a part hereof.
3. All other convenants, terms and provisions of said Lease to Build
Agreement not modified or amended herein shall remain in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed in due form of law as of the day and year first above written.
Signed, sealed and delivered TAMPA WEST INDUSTRIAL PARK, INC.
In the presence of:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx, VP
By:
(Corporate Seal)
/s/ Xxxxx X Xxxxxx
"LESSOR"
Witnesses as to LESSOR
REFLECTONE, INC.
/s/Xxxxxxx X. Xxxxxx /s/Xxxxxx Xxxxxx, Exec. VP
By:
(Corporate Seal)
/s/Xxxxx X. Xxxxxx
"LESSEE"
Witnesses as to LESSEE
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowleged before me this 11th day of
August , 1982, by Xxxxx X. Xxxxxx, as Vice President of Tampa West Industrial
Park, Inc., a Florida corporation, on the date aforesaid.
/s/ Xxxxxxxx (Sp?)
Notary Public
(Notarial Seal)
My Commission Expires:
Notary Public, Florida
State at Large My Commission
Expires Oct. 15, 1983
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SIXTH AMENDMENT
TO LEASE TO BUILD
AGREEMENT
This Amendment is made effective as of June 8, 1984, between TAMPA WEST
INDUSTRIAL PARK ("Landlord") and REFLECTONE, INC. ("Tenant").
On December 28, 1978, Landlord and Tenant entered into a Lease to
Building Agreement (the "Lease"). The Lease was amended on March 26, 1979,
May 10, 1979, February 15, 1980, July 10, 1980, and August 11, 1982.
Tenant has requested and Landlord has agreed to construct certain
additional improvements in the building located on the Premises. The purpose
of this Amendment is to set forth the terms of that agreement.
NOW, THEREFORE, in consideration of these premises and the mutually
beneficial provisions set forth below, Landlord and Tenant agree as follows:
1. Landlord shall, at Tenant's request, construct additional
improvements consisting of approximately 30,000 square feet of mezzanine space
in the existing building located on the Premises (the "mid-bay area"), subject
to the terms and conditions of this Amendment.
2. At Tenant's direction, Landlord shall retain an architect and
an engineer to design and oversee the construction of the mid-bay area.
Tenant shall select the architect and engineer but they must be reasonablely
acceptable to Landlord. Tenant shall negotiate the terms of the employment
contracts for the approved architect and engineer, subject to Landlord's
review and approval, which approval shall not be unreasonably withheld. When
approved, Landlord shall enter into the employment contracts with the approved
architect and engineer.
3. The approved architect and engineer shall prepare plans and
specifications and a construction budget for the mid-bay area consistent with
Tenant's instructions but subject to Landlord's review and approval, which
approval shall not be unreasonably withheld, if the plans and specifications
meet or exceed all applicable governmental and casualty insurance
underwriter's requirements and comply with all applicable governmental laws,
regulations, ordinances, rules, orders, and codes, and if the construction
budget does not exceed $300,000.00. Landlord shall have 15 days to review and
approve the final plans and specifications and the final construction budget.
4. At Tenant's direction, Landlord shall retain a general
contractor to construct the mid-bay area. Tenant shall select the general
contractor but Tenant's choice must be reasonably acceptable to Landlord.
Tenant shall negotiate the terms of the construction contract with the general
contractor, subject to Landlord's review and approval which approval shall not
be unreasonably withheld. When approved, Landlord shall enter into the
construction contract with the general contractor.
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5. Tenant shall administer and coordinate the construction of the
mid-bay area in the Landlord's behalf including the selection of
subcontractors and suppliers, the approval of statements and draw requests,
quality control, the daily negotiations with the general contractor, and the
authorization of change orders; provided, however, that in no event may a
change order increase the estimated cost of any item on the construction
budget by more than 10% without the Landlord's prior written approval, which
approval shall not be unreasonably withheld.
6. Tenant shall ensure that the general contractor obtains all
required building permits before commencing construction. Landlord shall join
into the execution of all applications and other documents required in
connection with obtaining the permits.
7. Tenant shall obtain and maintain all insurance policies
Landlord may reasonably require in connection with the construction, including
(but not limited to) the types of insurance set forth below. Each policy
shall be in an amount and issued by an underwriter acceptable to Landlord and
shall name Landlord as an additional insured, as its interest may appear.
(a) Hazard Insurance. Builder's risk and such other
fire and extended insurance as Landlord may require including a
loss-payable provision to the effect that, as to the interest of
the Landlord, the insurance coverage shall not be invalidated or
voided by any act of negligence of the Tenant, on the condition
that the Landlord pay on the insurer's demand any premium due un-
der the policy and not paid by the Tenant.
(b) Comprehensive General Liability and Statutory
Worker s Comprehensive Insurance. General Liability and worker's
compensation insurance for both Tenant and Tenant's contractors.
8. Tenant shall ensure that construction of the mid-bay area is
commenced promptly after the building permits are issued and subject to
matters beyond Tenant's control including, but not limited to unavailability
of labor or materials, Tenant shall cause the general contractor to diligently
pursue construction to completion on or before one year after the date
construction commences.
9. Tenant shall notify Landlord promptly of all Notices to Owner
and all Claims of Lien Tenant receives from any laborer, subcontractor, or
materialman in connection with the construction of the mid-bay area.
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10. Landlord shall pay the valid, authorized costs of design and
construction of the mid-bay area up to the maximum amount of $300,000.00 in
accordance with the construction budget approved by Landlord, subject to the
procedure set forth in the architect's, engineer's, and general contractor's
Contracts. Tenant shall pay all costs of design and construction of the
mid-bay area in excess of $300,000.00. This provision shall survive the
termination of the Lease (whether through the passage of time or otherwise).
11. Upon completion of the mid-bay area, the base rent specified
ln the Lease, as amended, shall increase to reflect the value of the
additional leasable area by an amount equal to 15% per year of the amount
actually disbursed by Landlord to pay for the valid costs of design and
construction of the mid-bay area (the "Improvement Cost"), together with
applicable Florida sales tax, payable in equal monthly installments beginning
on the first day of the first month following the issuance of the certificate
of occupancy for the mid-bay area and continuing until the base rent increases
as described ln paragraph 2 of the Lease. On the date of the first increase
ln the base rent as set forth in paragraph 2 of the Lease, the additional base
rent payable under this paragraph shall increase from 15% per year of the
Improvement Cost to 16.66% per year of the Improvement Cost. Similarly, on
the date of the second increase ln the base rent as set forth ln paragraph 2
of the Lease, the additional base rent payable under this paragraph shall
increase from 16.66%. per year of the Improvement Cost to l8.33% per year of
the Improvement Cost.
12. In addition to the increase in the base rent over the
remainder of the initial term of the Lease, upon the completion of the
mid-bay area and upon Landlord's request, Tenant shall pay Landlord a one time
payment of additional rent in an amount equal to 15% per year times the
amounts disbursed from time to time by Landlord to pay the valid design and
construction costs of the mid-bay area, calculated from the date of each dis-
bursement until the first day of the first month following the issuance of the
certificate of occupancy for the mid-bay area, together with applicable sales
tax.
13. Tenant is solely responsible for the quality of the design
and construction of the mid-bay area, and for the suitability of the mid-bay
area for Tenant's purpose. Tenant's approval of each periodic draw request
and the final draw request shall be conclusive evidence in any dispute between
the Tenant and the Landlord that the design and construction of the mid-bay
area through the date of the draw request has been completed in a good and
workmanlike manner in accordance with the plans and specifications, and is
suitable for Tenant's purpose. Tenant shall indemnify, defend, and hold
Landlord harmless from all claims, demands, suits, damages, losses, costs, and
expenses, including reasonable attorneys' fees, arising from or in any way
related to the design, the construction, or the use and operation of the
mid-bay area.
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14. All other terms, covenants, and conditions of the Lease, as
amended, not amended by the provisions set forth above shall remain unchanged
and in full force and effect, as if fully set forth herein.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Amendment
on the dates set forth opposite their signatures below but effective as of the
date first stated above.
WITNESSES: TAMPA WEST INDUSTRIAL PARK,
/s/Xxxxxxxx X. Xxxxx /s/Xxxxxx X XxXxxxxx
By:
As its President
(Corporate Seal)
WITNESSES: REFLECTONE, INC.
/s/Xxxxxxx X. Xxxxx /s/ (Sp?) X. Xxxxxx
By:
/s/Xxxxx Xxxxxxx
As its V P Operations
(Corporate Seal)
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