Exhibit 10.11
L E A S E
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This is a Lease between LAKEWOOD RANCH PROPERTIES, L.L.C., a Florida limited
liability company, hereinafter referred to as "Landlord", and SPEEDCOM WIRELESS
CORPORATION, a Delaware corporation, hereinafter referred to as "Tenant", dated
as of the _______day of November, 2000.
In consideration of the rents to be paid hereunder, the mutual promises and
covenants contained herein, and for other good and valuable consideration,
Landlord and Tenant hereby covenant and agree as follows:
1. Demise of Premises. Landlord does hereby lease to Tenant, and Tenant does
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hereby rent from Landlord, the land described in Exhibit "A" annexed hereto,
hereinafter referred to as the "Land", and all improvements to be constructed
thereon pursuant to the terms and provisions of this Lease Agreement,
hereinafter referred to as the "Improvements", together with all of Landlord's
easements and privileges appertaining to or used in connection therewith. The
Land and the Improvements are hereinafter collectively referred to as the
"Premises".
Tenant shall execute this Lease and deliver same to Landlord no later than
5:00 PM on Monday, November 13, 2000. Landlord's and Tenant's obligations
under this lease shall be contingent upon Landlord's acquisition of title to the
Land pursuant to Tenant's assignment to Landlord of that certain Agreement for
Purchase and Sale dated June 30, 1998 between Lakewood Ranch Corporate Park,
Inc. as seller and SpeedCom Wireless International corporation as buyer.
Landlord's obligations hereunder shall be further contingent upon its ability to
obtain acquisition and construction financing in an amount and on terms
acceptable to Landlord in its sole and absolute discretion by November 22, 2000.
Neither Landlord nor Tenant shall have any liability in the event that the
aforementioned contingencies fail.
2. Construction by Landlord. The Landlord shall construct certain initial
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improvements (hereinafter, "Initial Improvements") upon the Land in substantial
conformity with the "Site and Development/Construction Plans" dated 2/26/99
prepared by AM Engineering, Inc. which are attached hereto as Exhibit "B",
hereinafter referred to as the "Site Plans", the building plans dated 5/31/00
prepared by Xxxxxx X. Xxxxxxx, Xx. which are attached hereto as Exhibit "C", as
same have been modified by the Proposed First and Second Floor Plan dated
11/2/00 prepared by Corporate Distinctions which are attached hereto as Exhibit
"D", hereinafter collectively referred to as the "Building Plans", and the
specifications for interior build out set forth on the "TENANT BUILDOUT AS
PROVIDED BY DEVELOPER" prepared by Gateway Building & Design Corp. which is
attached hereto as Exhibit "E", hereinafter referred to as the "Building
Specifications". The interior space of the Premises shall be finished in
accordance with the Building Specifications and the "ROOM FINISH SCHEDULE (s)"
found on sheet 6 of Exhibit "C". For this purpose the name of each space noted
on the attached Exhibit "D" shall correlate to the same name indicated on the
room finish schedules appearing on sheet 6 of Exhibit "C". All doors shall be
provided and installed as per the "DOOR SCHEDULE" found on Exhibit "D".
Provided, however, that Landlord's responsibility concerning construction of the
Initial Improvements shall include and be subject to the following provisions:
(a) The exterior of the front of the building shall be constructed with
freeze bands, pedestal bands, door bands, and stone on the columns;
(b) The room finish schedule shall be modified as it applies to the
three conference rooms and the training room to provide for wood base and cove
moldings and one (1) wet bar;
(c) An agreed allowance of $34,000.00 for data/voice wiring including
cabling connectors and hardware shall be provided by Landlord. Tenant may not
apply any unused portion of said allowance to any other aspect of the design,
construction, or build out contemplated under this Lease. Tenant may contract
for the wiring and cabling work contemplated under this sub- paragraph with the
contractor of its choice and shall submit all invoices for same to Landlord's
contractor or construction manager directly. In consideration for Landlord's
consent to this arrangement, Landlord shall not be responsible for any delays in
the completion of said work, and the failure to complete said work shall not be
considered in the determination of substantial completion of the Initial
Improvements hereunder.
Subsections (a) through (c) above describe what shall be hereinafter referred
to as the "Additional Work".
Exhibits "B" through "E" which have been attached hereto and made a part
hereof shall sometimes be referred to herein as the "Plan". It is expressly
agreed that Landlord's construction cost responsibility hereunder shall be
limited to the Plan, it being the intention of the parties hereto that any
additional costs associated with changes to or deviations therefrom shall be
borne solely by Tenant. Said additional costs shall include, without limitation,
costs of construction and the costs of design, space planning, and engineering
services.
Additional leased space may be constructed and added to the Improvements under
this Lease only upon Landlord's approval. Such additional leased space shall
hereinafter be referred to as "Additional Improvements". Landlord may deny such
request in its sole and absolute discretion.
Landlord shall make all reasonable efforts to substantially complete the
Initial Improvements on or before August 1, 2001. Provided, however, that
Landlord does not covenant to have the Initial Improvements completed by said
August 1, 2001 date or by any specific date. Landlord shall be subject to a
penalty of $500.00 per day for each day that the commencement of the lease term
is delayed beyond October 1, 2001; provided, however, that said penalty shall
not apply to the extent that such delay is caused by acts of God, changes to the
Initial Improvements required by Tenant or by any governmental or quasi-
governmental agency, or to delays related in any way to the completion of the
wiring and cabling work described in Paragraph 2 (c ) herein. This penalty shall
be Tenant's exclusive remedy for Landlord's failure to substantially complete
the Initial Improvements and obtain the certificate of occupancy therefor by
said date. Landlord shall not be responsible for any delay in completion of any
Additional Improvements except as may be agreed upon by Landlord in writing. The
terms "substantially completed", "substantial completion", or any variation of
such terms as used in this Lease, shall be defined to mean such completion as
shall enable the Tenant to reasonably and conveniently use and occupy the
Premises for the conduct of its ordinary business. Therefore, the Premises shall
be deemed to be substantially completed even though minor details of
construction, decoration, landscaping and mechanical adjustments remain to be
completed by Landlord; subject, however, to the preparation at the time of
substantial completion of a mutually agreed written list of such uncompleted
minor details, and a written agreement between Landlord and Tenant that the
acceptance of the Premises by Tenant is subject to the completion of such minor
details within a period of sixty (60) days after said acceptance by Tenant,
except for such items which, by their nature, may take such longer period of
time as fully set forth in said written agreement.
Tenant shall be responsible for making any changes to the Premises required to
bring the Premises into compliance with any changes to any governmental
regulations occurring after the commencement date of this Lease including, but
not limited to, any changes to the Clean Air Act and Americans with Disabilities
Act, and Tenant shall be responsible for any changes which may be required under
Title I of the Americans with Disabilities Act if Tenant employs a disabled
person.
Landlord covenants with Tenant that in the event of defects in construction or
workmanship relative to the improvements to be constructed pursuant hereto,
Landlord shall use all reasonable efforts to procure correction of the same by
the contractor or sub-contractor involved. In no event, however, so long as the
Premises are usable for their intended purposes, shall Tenant be entitled to
withhold or xxxxx rental pending correction of repairs.
3. Term. The term of this Lease shall be for a period of fifteen (15)
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years, commencing upon substantial completion of the Premises and issuance of
the certificate of occupancy therefor. For this purpose, substantial completion
of the Premises shall mean substantial completion of the Initial Improvements,
and the failure to complete any Additional Improvements which may be approved by
Landlord shall not serve to delay the commencement of the Lease Term. If Tenant
shall occupy the Premises on a day other than the first day of the calendar
month, the rent for such month shall be prorated on a per diem basis calculated
on the basis of the number of days in the subject month, and the next rental
payment shall be due on the first of the following month with all subsequent
payments due on the same day of each month thereafter.
4. Base Rental. Tenant agrees to pay to Landlord, as base rental hereunder,
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one hundred and eighty (180) consecutive monthly payments of $42,218.57,
together with any tax imposed by the State of Florida on rentals, commencing
upon substantial completion of the Premises and issuance of the certificate of
occupancy therefor. Said monthly sum is based upon an agreed annual base
rental rate of $13.11 per square foot of rentable space and an agreed 38,644
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square feet of rentable space determined from the Building Plans, as modified
herein. The parties recognize and agree that any Additional Improvements which
may be approved and constructed by Landlord may increase the rentable space, and
that the rental hereunder shall be adjusted according to the rental rate in
effect at the time such Additional Improvements are turned over to Tenant. The
rentable space which shall be used for purposes of calculating the base rental
for any of any Additional Improvements hereunder shall be calculated and
certified by Tenant's architect and presented to Landlord for its verification
and approval prior to construction thereof. Landlord's approval of said plans
for any Additional Improvements and calculation of additional rentable space
shall be rendered in its sole and absolute discretion.
If Tenant shall commence occupancy of the Premises on a day other than the
first day of a calendar month, then the base rental for such month shall be
prorated by dividing same by the number of days in said month and multiplying by
the number of days remaining in said month and adding any tax imposed by the
State of Florida on rentals. In such case, Tenant shall pay such prorated base
rental and the base rental payment for the following month, together with
applicable sales tax thereon, prior to taking occupancy, and such amount shall
constitute Tenant's first monthly base rental payment. All monthly base rental
payments shall be payable in advance, and, other than as aforesaid, shall be
made on the first day of each month during the term of this lease. All such
payments shall be made at: X/X Xxxx X. Xxxxx, Xxx., Xxxxxx & Xxxxx, X.X., 00
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Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 or such other address as Landlord
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shall hereafter designate in writing. A deposit toward the first such monthly
base rental payment and the first monthly common area maintenance charge set
forth in Paragraph 5 herein shall be paid by Tenant to Landlord in the amount of
$53,489.74 upon the signing of this Lease together with applicable sales tax
thereon. Landlord acknowledges receipt of the aforementioned prepayment
together with applicable sales tax in the total amount of $57,234.02.
Commencing on the Anniversary Date of the commencement of this Lease and
adjusted each Anniversary Date thereafter, the base rental hereunder shall be
increased by the greater of either three percent (3%) over the prior year's base
rental or the percentage, if any, of increase in the Consumer Price Index as of
such Anniversary Date over that which existed on the preceding Anniversary Date
of the Lease. Such increase shall be determined by Landlord who shall notify
Tenant thereof. Tenant shall pay the increased base rental to the Landlord for
the period of time elapsing between the Anniversary Date and notice of such
increase upon request by Landlord. Thereafter, the increase shall be payable
equally with the regular rental payments. The term "Consumer Price Index" shall
mean the Consumer Price Index as now published by the U.S. Bureau of Labor
Statistics under the caption: "United States City Average for Urban Wage
Earners and Clerical Workers All Items" or any revision or equivalent thereof
hereafter published by that Bureau, or, if there ceases to be any such
publication, then any substantially equivalent Price Index generally recognized
as authoritative, designated by Landlord. Base rental increases under this
paragraph shall be capped at seven percent (7%) per year.
5. Common Area Maintenance. The Common Area Maintenance expenses shall be
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deemed to include all reasonable and customary costs and expenses paid or
incurred by Landlord in the operation , maintenance, servicing, and management
of that portion of the Premises located outside the air conditioned space of the
Premises, including without limiting the generality of the foregoing, utilities
and water and sewer charges, grounds, maintenance, air conditioning repair and
maintenance, security, pest control, building cleaning, painting, supplies,
maintaining, repairing and replacing the roof, parking lot maintenance and
resurfacing, liability, casualty, and property damage insurance, management
fees, professional fees and administration expenses relative to the operation of
the building, real property taxes, personal property taxes imposed upon the
property of Tenant or Landlord located upon or associated with the Premises,
property owners' association fees, garbage and trash collection, and other such
miscellaneous items which may be related in any way to the operation or
maintenance of the Premises. It is agreed that Tenant shall pay all such
expenses in the same manner as rental hereunder, and that the amount of such
expenses in the first year of this Lease are estimated in the amount of $3.50
per square foot per year for the 38,644 square feet of rentable space covered by
this Lease. Landlord shall present to Tenant a statement within sixty (60)
days of the end of each calendar year during the term of this Lease, which
statement shall indicate the total of such expenses for the prior calendar year
and any overpayment or underpayment by Tenant. Landlord shall promptly refund
any
overpayment to Tenant, Tenant shall promptly pay any underpayment to Landlord,
and the amount of the monthly common area maintenance charge shall be adjusted
accordingly and shall remain fixed until the next such annual review and
adjustment.
6. Late Fee. In the event that Tenant does not pay any base rental payment,
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additional rental payment, or other payment due hereunder within five (5) days
of the due date, then a late payment penalty of five percent (5%) of the amount
due shall be charged and shall be immediately due and payable. Landlord is not
obligated to accept any rental payment if all applicable or accrued late charges
are not paid. The extension of time or times for payment of any installment or
payment due hereunder or the acceptance by Landlord of any payment other than as
provided for herein shall not constitute a waiver or release of the rights of
Landlord to insist on having any or all of the said payments of rent, late
fee(s), or other payments due hereunder made in the manner and at the time
herein specified.
7. Security Deposit. Landlord acknowledges the receipt of the
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additional sum of $106,979.47, which sum represents a security deposit. Landlord
shall keep the security deposit in a separate interest bearing account. All
interest earned on the security deposit shall compound and accrue as additional
security deposit and shall be disbursed to Tenant annually (within 60 days of
the end of each calendar year), provided Tenant is not in default under the
terms of this Lease. If Tenant complies with the terms and provisions of this
Lease, said security deposit and any accrued interest thereon shall be returned
to Tenant upon the termination hereof. In the event that Tenant fails to comply
with the terms and provisions of this Lease, Landlord may use the said security
deposit and all accrued interest thereon to the extent necessary to cure any
defaults of Tenant, and Tenant shall promptly upon demand restore said security
deposit to the amount which had been on deposit prior to Landlord's use thereof.
Tenant shall provide its Federal tax payer identification number to Landlord for
use by the depository institution chosen by Landlord, and all interest shall be
reported as income earned by Tenant.
8. Net Lease. It is the intent of Landlord and Tenant that this Lease be a
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"Net Lease", meaning that Tenant shall be responsible for the payment of all
insurance, utilities, repairs, maintenance, replacement, sales and use taxes,
real property taxes, tax assessments, charges and impositions relative to the
Premises and/or Tenant's use and occupancy thereof, except that Tenant shall not
be responsible for the payment of any mortgages or other liens placed upon the
premises by Landlord, nor for the payment of any income taxes of Landlord. In
the event that a non-ad valorem tax assessment is levied against the Property
and such assessment includes an installment payment option, then Tenant may
elect to have such assessment paid by the installment method and included in its
common area maintenance payments hereunder, provided the following conditions
are met:
(a) Tenant is not in default under the Lease;
(b) The amount necessary to pay the initial amount of such assessment
in lump sum is greater than $10,000.00;
(c) The installment payment term is less than the remaining term under
the Lease. In the event that the installment payment term is greater than the
remaining term of the lease, then Tenant may further elect to pay such
assessment over a term no greater than the remaining term of the lease;
(d) In the event that Tenant requests Landlord's approval to sublet or
assign its interest under this Lease, then Landlord reserves the right to
require Tenant to pay the full remaining balance of any outstanding assessments
as a condition to such approval.
Tenant's responsibility hereunder shall also include the payment of all
charges for the collection of refuse from the Premises. Tenant's responsibility
for the payment of all such costs associated with that portion of the Premises
lying outside of the air conditioned space of the building to be constructed
thereon shall be incorporated into the common area maintenance charges
referenced in Paragraph 5 herein. Tenant shall be responsible for establishing
and maintaining accounts in its own name for such utilities and services as may
be necessary for the full use and maintenance of that portion of the Premises
lying within the air conditioned portion of the building to be constructed
thereon. Said responsibility shall include the posting of all necessary
security deposits.
9. Maintenance, Repair and Replacement of Premises. The parties acknowledge
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that this is a Net Lease. Tenant shall be wholly responsible for the cost of
all repair, maintenance and replacement of all improvements now existing or
hereafter constructed upon the Premises or forming a part thereof at any time
during the term of this Lease and shall be responsible for making any changes to
the Premises required to bring the Premises into compliance with any
governmental regulations with an effective date which post dates tenant's
occupancy hereunder. Tenant does hereby covenant to keep the Premises and all
such improvements in good repair and in clean and sanitary condition during the
term of this Lease and will comply with all governmental ordinances and
directions of proper public officers in connection with such repair, maintenance
and replacement during the term of this Lease and will yield up the Premises at
the end of the term in good condition, ordinary wear and tear only excepted.
10. Condition of Premises. The Premises are leased subject to any and all
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conditions that an accurate examination of the Premises would disclose, Tenant
agreeing to indemnify Landlord against any and all claims for personal injury or
property damage caused by any such defects in the Premises. Tenant agrees to
indemnify and hold Landlord harmless against any and all claims for personal
injury or property damage arising from the use or occupancy of the Premises by
Tenant.
11. Alterations by Tenant. Landlord agrees that Tenant may make, at its own
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expense, any minor non-structural alterations, repairs, replacements or
additions to the building on the Premises, provided:
(a) Any such alterations, repairs, replacements or additions shall not
lessen the value of the said building as it shall be at the commencement of this
Lease; and,
(b) Tenant shall perform such alterations, repairs, replacements or
additions, in accordance with the statutes, ordinances, rules, regulations and
orders of all public or quasi-public authorities having jurisdiction thereof and
in accordance with the rules and regulations of the local board of Fire
Insurance Underwriters; and,
(c) The Premises shall at all times be kept free and clear of all
mechanic's, materialmen's, labor or other liens or claims of liens, and Tenant
agrees to indemnify and save harmless Landlord from all claims, demands and
liability, including damage to person or property arising out of or in
connection with any such work; and,
(d) At all reasonable times during the progress of such construction
work, Landlord or persons authorized by Landlord, shall have the right to go
upon the Premises for the purpose of inspecting the construction work then in
progress; and,
(e) Tenant shall at the expiration of the term of the Lease, and at
Tenant's expense, remove any partitions constructed by Tenant, upon request by
Landlord.
Tenant covenants and agrees with Landlord that Tenant shall not make any
additions or alterations or structural changes in or about the Premises, without
first submitting plans and specifications thereof to Landlord, and obtaining the
written approval of Landlord. Upon obtaining such written approval, Tenant may
make such additions or alterations at Tenant's sole cost and expense and subject
to the obligations of subparagraphs (a) - (e) above, inclusive, and providing
that such additions or alterations do not damage the building or endanger its
support or stability. Such additions, alterations, or improvements (except
trade fixtures), put in at the expense of Tenant, as aforesaid, shall be and
become a part of the Premises at the termination of this Lease, and become,
therefore the property of Landlord. Tenant shall have the right to remove
Tenant's trade fixtures provided the walls, floors and ceilings are restored to
the condition existing on the date of commencement of this Lease.
Nothing in the lease shall be construed to authorize Tenant or any person
dealing with or under Tenant, to charge the rents of the Premises, or the
property of which the Premises form a part, or the interest of Landlord in the
estate of the Premises, or any person under and through whom Landlord has
acquired its interest in the estate of the Premises, with a mechanics' lien or
encumbrance of any kind, and under no circumstances shall Tenant be construed to
be the agent, employee or representative of Landlord in the making of any such
alterations or improvements to the Premises, but on the contrary, the right or
power to charge any lien, claim or encumbrance of any kind against Landlord's
rents or the Premises or said land is denied. In the event of the filing of any
such lien, Tenant will promptly pay same and take steps immediately to have same
removed.
Tenant acknowledges that the Premises may constitute a place of public
accommodation or a commercial facility under Title III of the Americans with
Disabilities Act ("ADA") and that the ADA is applicable to both an owner and
lessee of a place of public accommodation or commercial facility. Tenant further
acknowledges that, under the ADA, any structural alteration to the Premises must
comply with accessibility standards set forth in the rules promulgated by the
Department of Justice, 28 C.F.R. (S)36.101 et seq. In the event Tenant makes any
structural alteration to the Premises which would require compliance with Title
III of the ADA and the accessibility standards promulgated by the Department of
Justice, Tenant agrees to design and build such structural alterations and to
make any other changes to any portion of the building, common area or parking
area in which the Premises are located or which are affiliated with the Premises
which are necessitated by such structural alterations, so as to comply with the
ADA and the accessibility standards. Tenant hereby agrees to indemnify and hold
Landlord harmless from and against any and all liabilities, claims, demands,
damages, expenses, fees, fines, penalties, suits, proceedings, actions and
causes of action of any and every kind and nature arising or growing out of or
in any way connected with any structural alteration of the Premises by Tenant.
12. Use of Premises. The Premises shall be used by Tenant solely for general
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office, production, and shipping space directly associated with its business.
Tenant agrees that Tenant shall not sell or permit to be kept, used or sold in
or about the Premises any articles which may be prohibited by standard form fire
insurance policies. Tenant further agrees that Tenant will not use the
Premises, or permit the same to be used, for any unlawful, immoral, obnoxious or
offensive business or practice.
13. Signs. Tenant shall have the right to construct and maintain a single
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signage monument and related tenant sign upon the Land at its sole cost and
expense. Provided, however, that Tenant shall first submit to Landlord its
plan as to the location and construction of same and obtain Landlord's consent
thereto, which consent shall not be unreasonably withheld. It is expressly
stated and agreed that Landlord's approval hereunder shall not constitute or be
construed as a statement of approval by Lakewood Ranch or applicable
governmental or quasi-governmental authorities, it being the requirement
hereunder that Tenant shall be responsible for obtaining all such approvals
prior to the commencement of such construction. Any such signage monument
constructed on the Land shall become the property of Landlord, except that
Tenant shall be permitted to remove and retain any removable component thereof
which includes Tenant's name. Tenant shall restore the signage monument to its
original condition upon such removal. Tenant shall not be permitted to affix
any sign or similar structure to the building located upon the Premises.
14. Licenses, Fees and Taxes. Tenant shall pay all state, county, municipal,
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occupational or other licenses, fees and taxes which may be imposed upon the
business or occupation of Tenant conducted on or from the Premises and shall pay
any tax imposed by the State of Florida on rentals.
15. Tenant to Observe Laws, Rules and Regulations. With the exception of any
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provisions herein to the contrary, Tenant agrees, insofar as applicable to
Tenant's responsibility during the term of this Lease, to promptly observe,
comply with and execute at its own cost and expense all present and future laws,
rules, requirements, orders, directions, ordinances, and regulations, of any and
all governmental authorities or agencies, bureaus, boards or officials, and of
any Board of Fire Underwriters relating to the Premises and/or the use thereof
by Tenant.
Tenant, however, may contest, review or appeal from all governmental laws,
rules, requirements, orders, directions, ordinances or regulations, provided
Tenant shall, prior to contesting the same, notify Landlord in writing of its
intention to do so, and shall guarantee to Landlord that its title or other
interest in the Premises shall not be divested nor shall there be any seizure,
destruction, alteration or other interference with the Premises by any
governmental authority, and provided that all such proceedings shall be promptly
commenced by Tenant and diligently prosecuted by Tenant at its expense to a
speedy and final conclusion.
In the event Tenant contaminates the Premises or any adjacent property with
hazardous waste in connection with its use of the Premises, Tenant agrees to
hold harmless and indemnify Landlord, and Landlord's successors and assigns from
any and all claims, suits, actions, debts, damages, costs, charges, and
expenses, including attorneys' fees, paralegals' fees, legal assistants' fees
and costs, and against all liability, losses and damages of any nature
whatsoever, that Landlord may at any time sustain by reason of any such
contamination.
16. Hazardous Waste. Tenant agrees that the Premises shall not be used for
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the discharge or storage of any Hazardous Substance as defined in any federal,
state or local statute, rule, regulation or ordinance. Tenant agrees to
indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, paralegals' fees and legal assistants'
fees, costs of any settlement or judgment in claims of any and every kind,
whatsoever paid, incurred or suffered by, or served against Landlord by any
person or entity or governmental agency for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission or release from the Premises, in connection with
Tenant's operations thereon, of any Hazardous Substance, including any such loss
or liability arising under the Comprehensive Environmental Response,
Compensation and Liability Act, and any similar federal, state or local laws or
ordinances. If Tenant receives any notice of: (i) the happening of any
material event involving the escape, seepage, leakage, spillage, discharge,
emission, release or clean up of any Hazardous Substance on the Premises in
connection with Tenant's operations thereon, or (ii) any complaint, order,
citation, or material notice with regard to air emission, water discharge or any
other environmental health or safety matter affecting Tenant (an "environmental
complaint") from any person or entity, Tenant shall immediately notify Landlord
orally and in writing of said notice. Any breach of any warranty or
representation contained in this paragraph shall be an event of default under
the Lease, which, if not cured within thirty (30) days of notice thereof, shall
entitle Landlord to exercise any and all remedies provided in the Lease or
otherwise provided by law; provided, however, Landlord agrees that if the remedy
or such default cannot be reasonably achieved within said thirty (30) day
period, then Tenant shall have such further time as is reasonable under the
circumstances to effect such remedy provided that Tenant shall notify Landlord
within the thirty (30) day curative period of the necessity for additional time
and provided further that Tenant shall institute immediate steps to effect such
remedy and shall continuously and diligently pursue such remedy to completion.
17. Insurance. At all times subsequent to the commencement date of the term
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of this Lease and during the full term of this Lease, Tenant shall maintain, at
its sole cost and expense, the following types of insurance:
A. Fire and extended coverage multi-peril insurance in an amount equal to
100% of the full replacement cost of Tenant's furniture, fixtures and equipment
located on the Premises. Any policy providing such coverage shall contain the so
called special coverage all risk endorsement and the full replacement cost
endorsement.
B. General public liability insurance covering claims for personal injury or
property damage with limits of at least ONE MILLION DOLLARS ($1,000,000.00) in
respect to bodily injury and ONE MILLION DOLLARS ($1,000,000.00) for property
damage.
X. Xxxxx insurance for 100% of the replacement cost of Tenant's property
located on the Premises.
D. Plate glass insurance on the Premises in an amount sufficient to cover the
value of the plate glass which is located on the Premises, if any.
E. Such additional insurance and in such amounts as may be required from time
to time by the holder of any mortgage to which this Lease is subordinate.
All policies of insurance required to be maintained by Tenant shall name
Tenant and Landlord as the insureds as their respective interests may appear.
If Landlord so requires, the policies of insurance provided for above shall be
payable to the holder of any mortgage, as the interest of such holder may
appear, pursuant to a standard mortgagee clause. All such policies shall, to
the extent obtainable, provide that any loss shall be payable to Landlord or to
the holder of any mortgage notwithstanding any act or omission of Tenant (other
than non-payment of premiums) which might otherwise result in forfeiture of such
insurance. All such policies shall, to the extent obtainable, contain an
agreement by the insurers that such policies shall not be cancelled without at
least thirty (30) days prior written notice to Landlord and to the holder of any
mortgage to whom loss hereunder may be payable and shall contain a waiver of
subrogation rights against Landlord.
All insurance required to be maintained by Tenant hereunder shall be evidenced
to Landlord prior to Tenant's occupancy of the Premises by valid and enforceable
certificates of insurance issued by an agent licensed to do business in Florida
on behalf of insurers licensed to do business in the State of Florida and of
recognized
responsibility satisfactory to Landlord. Tenant shall promptly
deliver to Landlord the original policies as specified above, within thirty (30)
days of the commencement date of this Lease. Tenant shall promptly pay all
premiums due thereon and provide to Landlord satisfactory evidence of such
payment.
18. Destruction by Casualty. In the event of damage or destruction to the
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Premises by fire or other cause, Landlord shall have the option to repair or
restore the same, as the case may be, at Landlord's expense, or to terminate
this Lease, returning unearned rental monies to Tenant thereupon, Landlord to
notify Tenant of the option selected by Landlord within thirty (30) days after
such event; provided, however, that in the event Landlord exercises such option
to repair or restore the Premises, the same shall be done within a period of
ninety (90) days from the date of such damage or destruction. Landlord shall
not be responsible in the event of delay in said repairing or restoring if the
same is due to causes beyond Landlord's control. If Landlord exercises the
option to repair or restore the Premises, the Premises shall be in character and
appearance, equal to the Premises damaged or destroyed. It is further agreed
that in the event of such damage or destruction, and the exercise of Landlord's
option to repair the same, that this Lease shall continue in full force and
effect, but if such damage or destruction shall be of such extent that Tenant
cannot conduct business in a regular course on the Premises, then the rent and
other payments, if any, which Tenant is obligated to make hereunder, shall xxxxx
until the Premises have been fully and completely restored by Landlord and
possession thereof delivered to Tenant. Any rent paid in advance shall be
proportionately rebated. If Tenant can continue to conduct business in the
Premises but is deprived of the use of a part or parts thereof by reason of such
damage or destruction, then the rent and other payments, if any, which Tenant is
obligated to make hereunder, shall equitably xxxxx in proportion to the rental
value of the space which Tenant is unable to use, until the Premises shall have
fully and completely been restored by Landlord. In no event shall the rent
xxxxx if the damage or destruction is caused by the willful act or negligence of
Tenant, its agent, or servants, and Landlord is prejudiced thereby in respect to
collection of proceeds from any insurance policies covering the Premises.
19. Condemnation. In the event that any portion of the Premises or all of
------------
the Premises are taken under condemnation proceedings, or by sale under threat
of condemnation, Tenant shall have no right to any portion of the condemnation
award. If the portion of the Premises taken is such that Tenant is not
materially affected in the conduct of Tenant's business, then this Lease shall
continue in full force and effect with no abatement of rentals to be paid
hereunder as though such property was not taken. If, on the other hand, the
taking of a portion of the Premises is such as to materially affect the conduct
of Tenant's business, then and in that event, Tenant shall have the right to an
equitable abatement of rent hereunder. If Landlord and Tenant cannot agree on
an equitable rental reduction, then the same shall be referred to a panel of
three (3) arbitrators, one of whom is appointed by each party, and the third
appointed by the first two arbitrators, who shall meet within ten (10) days of
appointment and then and there determine a fair reduced rental, both parties
covenanting and agreeing to be bound by the arbitration decision. In the event
that the portion or amount of property taken by condemnation or by sale under
threat of condemnation is such as to preclude Tenant from effectively conducting
Tenant's business, then Tenant shall have the right to cancel and terminate this
Lease which said right shall be exercised, if at all, by Tenant so notifying
Landlord within fifteen (15) days after the taking or conveyance of the
property.
20. Entry Upon Premises. Tenant agrees that Landlord may at any reasonable
-------------------
time or times during the business hours of Tenant, enter upon the Premises for
the purpose of inspecting the same, or to make necessary repairs where Landlord
is obligated to make such repairs or where Tenant is delinquent in making
repairs it is obligated to make.
Tenant agrees to permit Landlord and Landlord's agents, one (1) year prior to
the expiration of the term hereby granted, to place in one or more conspicuous
places upon the exterior of the Premises, signs advertising the Premises "For
Sale" and "To Let," provided that said signs shall not obstruct the windows of
or entrances to the Premises or otherwise interfere with the operation of
Tenant's business.
Tenant further agrees to allow Landlord to enter upon the Premises at all
reasonable times for the purpose of installing or servicing electrical wiring,
telephone cables, water and sewer lines, or other similar transmission lines,
which cross the Premises for the purpose of rendering service to adjacent
property.
21. Assignments and Subletting. Tenant shall not sublet the Premises or
--------------------------
assign this Lease without the written consent of Landlord. Landlord agrees not
to withhold such consent unreasonably. No assignment or
sublease nor acceptance of rent from any assignee or subtenant, nor any other
dealings of the Landlord with any assignee or subtenant shall in any manner
release Tenant from the payment of rent and the due performance of all the
terms, covenants and conditions contained in this Lease.
In the event of a request by Tenant to Landlord to approve an assignment,
Tenant shall reimburse to Landlord the reasonable costs and value of time
invested by Landlord in determining the proposed assignee's acceptability, which
reimbursement shall be a condition of approval. Such reimbursement shall also
include any attorneys' fees, paralegals' fees, legal assistants' fees, court
costs and expenses incurred relative to the same. In no event shall such costs
for which Tenant shall be responsible exceed the sum of FIVE THOUSAND and NO/100
($5,000.00) DOLLARS.
If Tenant shall assign or sublet the Premises, or any part thereof, having
first obtained Landlord's consent, at a rent in excess of the rent due and
payable by Tenant under the Lease, said excess rent shall be divided equally
between Landlord and Tenant after adjustment for all costs and expenses of such
sublease or assignment, including any time period that the Premises are vacant
between the occupancy of Tenant and Tenant's subtenant or assignee. Provided,
however, that Landlord shall not be responsible for any deficiency if Tenant
shall assign or sublet the Premises or any part thereof at a rent less than that
provided for herein.
22. Covenants as to Breach and Remedies. In addition to default by Tenant in
-----------------------------------
any of Tenant's promises or covenants hereunder, either, (a) the appointment of
a receiver to take possession of all, or substantially all, of Tenant's
property, or (b) a general assignment by Tenant for the benefit of creditors, or
(c) any action taken or suffered by Tenant under any insolvency or bankruptcy
act, shall also constitute a breach of this Lease by Tenant.
In the event of breach of this Lease by Tenant, or in the event of abandonment
or renunciation of this Lease by Tenant before the expiration of the term
hereof, Landlord may:
A. Treat this Lease as terminated and resume possession of the Premises,
having immediate right of reentry, and may remove all persons and property from
the Premises, and may store such property in a public warehouse or elsewhere at
the cost of and for the account of Tenant; or
B. Landlord may retake possession of the Premises for the account of Tenant
and relet the Premises, or any part thereof, for such term or terms and at such
rental and upon such other terms and conditions as Landlord may deem advisable,
in which event the rents received by Landlord from reletting shall be applied
first to the payment of such expense as Landlord may be put to in reentering,
and then to the payment of the rent due and to become due under this Lease, the
balance, if any shall be paid over to Tenant, who shall remain liable for any
deficiency; or,
C. Landlord may stand by and do nothing and shall have the right to xxx
Tenant as each installment of rent matures, or accelerate the balance of
installments due and xxx for same.
No such re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless written
notice of such intention be given to Tenant, or unless the termination thereof
be decreed by a court of competent jurisdiction. Notwithstanding any such
reletting without termination Landlord may, at any time thereafter, elect to
terminate this Lease for any breach, and in addition to any other remedies it
may have, it may recover from Tenant all damages that it may incur by reason of
such breach including the cost of recovering the Premises.
In the event Tenant defaults or breaches any of the terms, conditions or
promises of Tenant herein contained, and Landlord is put to the necessity of
employing an attorney in order to collect any sum or sums of money which may be
due by reason of such default, or otherwise take such steps or legal action as
may be necessary to enforce such terms, conditions or promises, then Tenant
agrees to pay reasonable attorneys' fees, paralegals' fees, legal assistants'
fees and court costs and expenses in connection therewith. Any disputes arising
under this Lease shall be resolved in accordance with the laws of the State of
Florida, and the venue for any legal proceedings hereunder shall be the County
of Sarasota.
TENANT HEREBY EXPRESSLY WAIVES ANY RIGHT WHICH TENANT MAY HAVE UNDER FLORIDA
STATUTES 83.20 OR ANY SUCCESSOR OR REPLACEMENT STATUTE OR AMENDMENT OR
MODIFICATION THERETO, OR UNDER ANY OTHER LOCAL, STATE OR FEDERAL LAW, ORDINANCE,
BY-LAW, RULE OR REGULATION (TO THE EXTENT WAIVABLE) TO RECEIVE ADVANCE NOTICE OF
ANY DEFAULT OR ANY OPPORTUNITY TO CURE SAID DEFAULT. TENANT'S RIGHTS IN THE
EVENT OF DEFAULT SHALL BE LIMITED TO THE RIGHTS, IF ANY, SET FORTH ON THIS
LEASE.
23. Performance by Landlord of Tenant's Obligations. In the event Landlord
-----------------------------------------------
shall pay or be compelled to pay a sum of money, or to do any act which
requires the payment of any money, by reason of the failure of Tenant to perform
one or more of the covenants herein contained to be kept and performed by
Tenant, then in such event, the sum or sums so paid by Landlord, together with
all interest, expense or obligations incurred by Landlord, shall be considered
as additional rent and shall be added to the rent becoming due for the next
month and shall be collectible in the same manner and with the same remedies as
if they had been rents originally reserved. Landlord agrees not to pay any sum
of money or to do any act which requires payment of any sum of money for which
under the provisions of this numbered paragraph it would be entitled to be
reimbursed by Tenant, unless it shall have first given fifteen (15) days notice
of its intention so to do and Tenant shall have failed during such period to
make payment of such sum or sums as shall be payable hereunder, or to do such
act or acts which under the terms of this Lease it is required to do.
24. Surrender. The voluntary or other surrender of this Lease by Tenant or a
---------
mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subleases or subtenancies or, at the
option of Landlord, may operate as an assignment to it of any or all such
subleases or subtenancies.
25. Notices. All notices to be given to Tenant shall be given in writing,
-------
personally, or by depositing the same in the United States Mails, certified or
registered, return receipt requested, postage prepaid and addressed to Tenant at
the Premises. Notices to be given to Landlord shall be given in a like manner
and addressed to Landlord at: Xxxx X. Xxxxx, Esq., Xxxxxx & Xxxxx, P.A., 22
---------------------------------------------
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, or such other address as
--------------------------------------------------
Landlord shall hereafter designate in writing. Notice shall be deemed effective
upon receipt if given by personal delivery or three (3) days after deposit in
the mail, if mailed.
26. Subordination. This Lease shall be subject and subordinate at all times
-------------
to the lien of any mortgage or mortgages, now encumbering the Premises, or which
Landlord may at any time place against the Premises. Tenant agrees to execute
such documents as may be requested by any mortgagee to evidence the
subordination contained herein; provided, however, that as a condition of such
subordination, the holder of such mortgage shall be required to agree with
Tenant that, notwithstanding the foreclosure of such mortgage, Tenant's
occupancy of the Premises shall not be disturbed so long as Tenant is not in
default hereunder and attorns to such Mortgagee and agrees to perform all
obligations owed to Landlord hereunder for the benefit of such Mortgagee.
27. Waiver. In the event Landlord does not insist on a strict performance of
------
any of the terms and conditions hereof, such shall not be deemed a waiver of the
rights or remedies that Landlord shall have to insist upon strict performance of
any such terms or conditions in the future or any other conditions and terms of
this Lease.
28. Successors and Assigns. The conditions and covenants herein contained
----------------------
shall apply to and bind the heirs, successors, personal representatives and
assigns, where allowed, of the parties hereto.
29. Invalidity of any Provisions. If any term, covenant, condition or
----------------------------
provision of this Lease shall be held to any extent to be invalid or
unenforceable under applicable law, the remaining terms, covenants, conditions
and provisions of this Lease shall not be affected thereby but shall remain in
full force and effect.
30. Required Statement. Florida Statutes (S)404.056(8) requires the
------------------
following statement to be included in this Lease: 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 obtained from your county public health unit.
31. Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in
--------------------
any action, proceeding or counterclaim brought by either of them against the
other or any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, and/or claim of injury or damage.
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 Landlord and Tenant; it being understood and agreed
that neither the method of computing rent nor any other provision contained
herein nor any acts of Landlord and Tenant shall be deemed to create any
relationship between the parties other than that of Landlord and Tenant.
33. Option to Renew. Provided and on condition that this Lease is not
---------------
previously cancelled by either party, as in this Lease provided, by operation of
law or otherwise, and that Tenant has during the whole of the term herein
provided, complied with and performed all the covenants and conditions in this
Lease, on Tenant's part to be performed, then Tenant shall have the option to
renew this Lease for a further term of five (5) years on all of the same terms
and conditions contained in this Lease. Provided, however, that the rental
during the first year of the renewal term shall be adjusted from the prior
year's rental in accordance with the rental adjustment provisions set forth in
paragraph 4 herein; and provided further that the rental for each subsequent
year in the renewal term shall be subject to the same rental adjustment
provisions. Tenant, in order to exercise the above option to renew, shall give
to Landlord or Landlord's successors and assigns, written notice of the taking
up and exercising of said option, on or before one (1) year prior to the
expiration of the original Lease term.
34. Option to Purchase. Tenant shall have the right as hereinafter provided
------------------
to purchase Premises by giving Landlord notice in writing of its election to do
so according to the following terms and conditions:
(a) If Tenant desires to have an Option to Purchase as hereinafter
provided, then Tenant shall pay to Landlord on or before the second anniversary
of the commencement date of the Lease Term the sum of ONE HUNDRED AND FIFTY
THOUSAND AND NO/100 DOLLARS ($150,000.00), which payment shall entitle Tenant to
have the Option to Purchase as provided below. Said payment is consideration for
such Option to Purchase and shall not form any part of the purchase price should
Tenant exercise this Option. Tenant's Option to Purchase shall not be
assignable;
(b) Option may be exercised by Tenant after the sixth (6th) anniversary
of the commencement date of the Lease by delivering written notice of said
election to Landlord within thirty (30) days of said anniversary and by full
performance hereunder pursuant to the terms and conditions hereinafter stated;
(c) Written notice of the exercise of this option shall be delivered to
Landlord within the aforementioned thirty (30) day period and shall be
accompanied by the deposit of the purchase price in the amount of ten percent
(10%) thereof;
(d) The purchase price shall be determined as follows. Tenant shall
obtain at its sole cost and expense an appraisal of the fair market value of the
Premises prepared by a licensed commercial appraiser and submit same to Landlord
within the aforementioned thirty (30) day period. Landlord may either approve or
disapprove the valuation of the Premises set forth in said appraisal. If
Landlord approves the valuation set forth in said appraisal, then the purchase
price shall be equal to 110% of said valuation. If Landlord disapproves the
valuation set forth in said appraisal, then Landlord shall obtain a second
appraisal at Tenant's sole cost and expense from an appraiser designated by
Landlord. In the event that the difference between the two valuations is no more
than five percent (5%) of the greater of the two valuations, then the purchase
price of the Premises shall be equal to 110% of the average of the two
valuations. In the event that the difference between the two valuations is more
than five percent (5%) of the greater of the two valuations, then Landlord may
elect to either fix the purchase price at 110% of the average of the two
valuations or obtain a third appraisal at Tenant's sole cost and expense from an
appraiser mutually agreed upon by the first two appraisers. In the event that
Landlord elects to obtain a third appraisal, then the purchase price of the
Premises shall be equal to 110% of the third appraiser's valuation or 110% of
the average of the two highest appraisals, whichever is greater;
(e) Within ten (10) days after the purchase price is fixed according to
the preceding paragraph, Landlord shall deliver to Tenant, at Tenant's expense,
a title insurance commitment issued by Xxxxxx & Xxxxx, P.A., as agent for any
title insurer licensed in Florida. Said title insurance commitment shall insure
that Landlord is vested with a fee simple merchantable title to the Premises
free and clear of all encumbrances except those which may be satisfied by
application of the purchase proceeds and except for valid easements,
restrictions, and reservations of record which will not interfere with Tenant's
proposed use of the Premises. Tenant shall have twenty (20) days within which to
examine and approve said title insurance commitment, and in the event of defects
in title being revealed and Landlord being notified thereof within said twenty
(20) day period, Landlord shall have a reasonable time not to exceed ninety (90)
days to cure the same. If such defects are not cured within said period of time,
Tenant shall have the right to terminate the purchase agreement and shall be
entitled to a return of the deposit monies or to accept title in its then
condition with no abatement of the purchase price, which said alternatives shall
be Tenant's exclusive remedies;
(f) Closing on the purchase of the premises under this option shall
take place no later than forty-five (45) days after the delivery of notice of
exercise thereof. At the closing, Landlord shall convey title to Tenant by a
good and sufficient warranty deed subject only to those matters permitted
pursuant to sub-paragraph (d) above, and Tenant shall deliver the purchase money
considerations mentioned in sub-paragraph (c ) above. Tenant shall pay for the
documentary stamps on said deed and all costs of recording.
Tenant is hereby granted a right of first refusal during the first five (5)
years of the Lease term. Said right of first refusal shall afford Tenant the
right to purchase the Premises on the same exact terms and conditions which have
been offered to Landlord and which have been determined to be acceptable by
Landlord. In the event that Tenant declines to exercise this right of first
refusal, then the aforementioned option rights shall terminate, and Landlord's
conveyance of the Premises shall be subject to this Lease excepting therefrom
all terms and provisions relating to said option rights.
35. Broker. Tenant hereby represents to Landlord that Tenant has not dealt
------
with,directly or indirectly, any broker relative to this transaction. In
the event that Landlord is held responsible for a brokerage commission by any
party who establishes by court action a right to such commission arising out of
dealings with Tenant, then Tenant agrees to save and hold Landlord harmless
therefor, and to indemnify Landlord as to any such loss including Landlord's
costs in defense of such action.
36. Guaranty of Performance. For valuable consideration, the undersigned
-----------------------
"Guarantor" irrevocably and unconditionally guaranties to Landlord the full,
faithful, and punctual performance by Tenant of all of Tenant's covenants and
agreements contained in this Lease, or any extensions or renewals thereof, and
agrees that any extensions, postponements, either of payment or enforcement,
waivers, releases of any rights against any party, or releases of any security
shall not affect Guarantor's absolute and unconditional liability hereunder.
Demand, notice of default or of nonpayment, and all suretyship defenses
whatsoever are hereby waived. Provided, however, that Guarantor's liability
hereunder shall terminate upon satisfaction of the following two (2)
conditions:
(a) Complete performance hereunder by Tenant without an instance of
default for the first twelve (12) months of the Lease Term;
(b) Delivery to Landlord of CPA prepared financial statements
indicating that Tenant's net worth is no less than TEN MILLION DOLLARS
($10,000,000.00).
Upon the satisfaction of the above referenced conditions, Landlord shall
deliver to Tenant a written statement of such satisfaction and the cancellation
of Tenant's guarantee obligations hereunder.
The parties hereto have executed this Lease the date indicated.
WITNESSES:
SPEEDCOM WIRELESS CORPORATION, A
Delaware corporation
_____________________________ By:___________________________
Print Name:___________________ Print Name:___________________
As Its:_______________________
_____________________________
Print Name:___________________ "TENANT"
Dated this _____ day of _______________________, 2000.
WITNESSES:
_____________________________ By:___________________________
Print Name:___________________ Xxxxxxx XxXxxxxx, Individually
_____________________________
Print Name:___________________ "GUARANTOR"
Dated this _____ day of _______________________, 2000.
WITNESSES:
LAKEWOOD RANCH PROPERTIES, L.L.C., A
Florida Limited Liability Company
_____________________________ By:___________________________
Print Name:___________________ Print Name:___________________
As Its Managing Partner
_____________________________
Print Name:___________________ "LANDLORD"
Dated this _____ day of November, 2000.
