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Exhibit 10.5
GRAN PARK
AT
SOUTH PARK
ASSEMBLY/LIGHT MANUFACTURING/OFFICE LEASE
By and Between
GRAN CENTRAL CORPORATION
a Florida corporation
as Landlord,
and
TRITON NETWORK SYSTEMS, INC.,
a Delaware corporation,
as Tenant
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TABLE OF CONTENTS
Page
1. Definitions ........................................................ 1
2. Lease Grant ........................................................ 3
3. Lease Term ......................................................... 3
4. Use and Possession ................................................. 4
5. Rent ............................................................... 5
6. Services to be Furnished by Landlord ............................... 7
7. Condition of Premises .............................................. 8
8. Maintenance and Repair of Premises by Landlord ..................... 8
9. Maintenance of Premises by Tenant .................................. 8
10. Graphics ........................................................... 9
11. Surrender of Premises ..............................................10
12. Repairs and Alterations by Tenant ..................................10
13, Net Lease ..........................................................11
14. Laws and Regulations ...............................................11
15. Building Rules and Regulations .....................................11
16. Entry by Landlord ..................................................11
17. Assignment and Subletting ..........................................12
18. Mechanic's Lien ....................................................13
19. Property Insurance .................................................14
20. Liability Insurance ................................................15
21. Indemnity ..........................................................16
22. Waiver of Subrogation Rights .......................................16
23. Casualty Damage ....................................................16
24. Condemnation .......................................................17
25. Damages From Certain Causes ........................................17
26. Events of Default/Remedies .........................................18
27. Peaceful Enjoyment .................................................20
28. Holding Over .......................................................21
29. Subordination to Mortgage ..........................................21
30. Landlord's Lien ....................................................21
31. Parking ............................................................22
32. Attorneys' Fees ....................................................22
33. No Implied Waiver ..................................................22
34. Personal Liability .................................................22
35 Security Deposit ...................................................23
36. Notice .............................................................23
37. Severability .......................................................23
38. Recordation ........................................................23
39. Governing Law ......................................................23
40. Force Majeure.......................................................23
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41. Time of Performance ................................................24
42. Transfers by Landlord ..............................................24
43. Broker .............................................................24
44. Effect of Delivery of This Lease ...................................24
45. Certain Rights Reserved to Landlord ................................24
46. Waiver of Trial by Jury ............................................25
47. Estoppel Certificate ...............................................25
48. Environmental Matters...............................................25
49. Radon Gas ..........................................................29
50. Relocation .........................................................29
51. Exhibits ...........................................................29
52. Termination Option .................................................29
53. Roof Equipment .....................................................30
Exhibit A - Description of Property on Which the Project is Situated
Exhibit B - Floor Plan of Premises
Exhibit C - Work Letter
Exhibit D - Rules and Regulations
Exhibit E - Property Restrictions
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ASSEMBLY/LIGHT MANUFACTURING/OFFICE
LEASE AGREEMENT
THIS ASSEMBLY/LIGHT MANUFACTURING/OFFICE LEASE AGREEMENT (this
"Lease"), made and entered into on this the ___ day of _________________, 1999,
between GRAN CENTRAL CORPORATION, a Florida corporation ("Landlord"), and
TRITON NETWORK SYSTEMS, INC., a Delaware corporation ("Tenant").
W I T N E S S E T H :
1. Definitions.
(a) "Building" shall mean the building situated at 0000
Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 and located upon the real property
described in Exhibit "A" attached hereto and incorporated herein (the
Property").
(b) "Premises" shall mean the space located within the
Building in Suite 670 and outlined on the floor plan attached to this Lease as
Exhibit "B" and incorporated herein. The Premises are stipulated for all
purposes to contain 22,720 square feet of "Rentable Area" (as below defined).
(c) "Base Rental" shall be as follows:
RATE PER
SQUARE FOOT OF
RENTAL PERIOD RENTABLE AREA MONTHLY ANNUALLY
Lease Year 1 $11.00 $20,826.67 $249,920.00
Lease Year 2 $11.33 $21,451.47 $257,417.60
Lease Year 3 $11.67 $22,095.20 $265,142.40
Lease Year 4 $12.02 $22,757.87 $273,094.40
Lease Year 5 $12.38 $23,439.47 $281,273.60
Such amounts do not include sales taxes, which are payable as provided in
Section 5(d) below. For purposes hereof, the first "Lease Year" shall begin on
the Commencement Date and expire one year later. If the Commencement Date
does not fall on the first day of a calendar month, the first Lease Year shall
also include the remainder of the calendar month in which the first anniversary
of the Commencement Date falls. Each subsequent Lease Year shall commence on
the day following the expiration of the previous Lease Year. All such rent
shall be payable in the manner provided in Section 5 below.
(d) "Commencement Date" shall mean the earlier of the
date that Tenant actually occupies the Premises or July 1, 1999, subject to
Section 3 below. NOTWITHSTANDING THE FOREGOING, THE COMMENCEMENT DATE SHALL NOT
OCCUR PRIOR TO THE DATE ON WHICH ALL
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REQUIRED CERTIFICATES OF OCCUPANCY HAVE BEEN OBTAINED FOR THE PREMISES AND THE
ARCHITECT HAS CERTIFIED THAT THE PREMISES HAVE BEEN COMPLETED; PROVIDED,
HOWEVER, THAT IF THE ISSUANCE OF THE CERTIFICATES OF OCCUPANCY OCCURS AFTER
JULY 1, 1999 DUE TO DELAYS CAUSED BY TENANT, THEN THE COMMENCEMENT DATE SHALL
BE JULY 1, 1999.
(e) "Lease Term" shall mean a term commencing on the
Commencement Date and continuing for 60 full calendar months (plus any partial
calendar month in which the Commencement Date falls).
(f) "Security Deposit" shall mean the sum of
$20,826.67, WHICH SHALL BE PAID ON THE DATE HEREOF. IN ADDITION, AS PART OF THE
SECURITY DEPOSIT, TENANT SHALL DELIVER TO LANDLORD ON OR BEFORE THE
COMMENCEMENT DATE A LETTER OF CREDIT IN THE FACE AMOUNT OF $350,000.00. SUCH
LETTER OF CREDIT SHALL BE UNCONDITIONAL AND IRREVOCABLE AND SHALL OTHERWISE BE
IN A FORM AND FROM A FINANCIAL INSTITUTION ACCEPTABLE TO LANDLORD. PROVIDED
TENANT HAS NOT BEEN IN DEFAULT UNDER THIS LEASE, SUCH LETTER OF CREDIT SHALL
DECLINE ON EACH ANNIVERSARY OF THE COMMENCEMENT DATE BY AN AMOUNT EQUAL TO
TWENTY-FIVE PERCENT (25%) OF THE INITIAL AMOUNT OF SUCH LETTER OF CREDIT. SUCH
LETTER OF CREDIT SHALL HAVE AN EXPIRATION DATE OF FOUR (4) YEARS FOLLOWING THE
COMMENCEMENT DATE.
(g) "Common Areas" shall mean those areas devoted to
driveways, parking areas, landscaped areas, truck courts and other similar
facilities provided for the common use or benefit of tenants generally and/or
the public.
(h) "Rentable Area" of the Premises shall mean the area
within the Premises comprising the gross area enclosed by the surface of the
exterior walls of the Building and/or the mid-point of any walls separating
portions of the Premises from areas leased to other tenants and from other
areas of the Building not subject to any tenant leases. Rentable Area shall not
include any service areas, meaning those areas within the outside walls used
for elevator mechanical rooms, building stairs, fire towers, elevator shafts,
flues, vents, stacks, pipe shafts and vertical ducts (but Rentable Area shall
include any such areas which are for the exclusive use of a particular tenant),
and Rentable Area shall include Tenant's pro rata share of the Common Areas
within the Building, based upon the ratio of the Rentable Area within the
Premises to the total Rentable Area within the Building, both determined
without regard to the Common Areas. The Rentable Area in the Building is
131,607 square feet. The estimates of Rentable Area set forth in the
immediately preceding sentence with respect to the Building, and in Section
l(b) above with respect to the Premises, may be revised, at Landlord's
election, if Landlord's architect determines such estimate to be inaccurate
after examination of the final drawings of the Premises and the Building. If it
is determined that the Rentable Area of the Building or the Premises is
different from that set forth above, then the Rentable Area of the Building or
the Premises, as applicable, shall be adjusted upward or downward accordingly.
If such remeasurement shall not be undertaken on or before the Commencement
Date, then the Rentable Area calculations set forth above shall be conclusively
binding upon Landlord and Tenant, and neither Landlord nor Tenant shall have
any further right to remeasure the Premises or the Building after such date.
The Premises constitutes 17.26% of the total Rentable Area within the Building,
and therefore the Tenant's pro rata share for purposes of this Lease shall be
17.26%.
(i) "Taxes" shall mean all taxes, assessments and fees
levied upon the Building, the Property, the property of Landlord located
therein or the rents collected therefrom,
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by any governmental entity based upon the ownership, leasing, renting or
operation of the Building and the Property, including all costs and expenses of
protesting any such taxes, assessments or fees. Taxes shall not include any net
income, capital, stock, succession, transfer, franchise, gift, estate or
inheritance taxes; provided, however, if at any time during the Lease Term, a
tax or excise on income is levied or assessed by any governmental entity, in
lieu of or as a substitute for, in whole or in part, real estate taxes or other
ad valorem taxes, such tax shall constitute and be included in Taxes. For the
purpose of determining Taxes for any given year, the amount to be included for
such year shall be Taxes which are assessed or become a lien during such year
rather than Taxes which are due for payment or paid during such year. TAXES
SHALL NOT INCLUDE ANY LATE CHARGES OR PENALTIES IMPOSED UPON LANDLORD DUE TO
THE LATE PAYMENT OF TAXES.
(j) "Building Standard" shall mean the type, brand
and/or quality of materials Landlord designates from time to time to be the
minimum quality to be used in the Building or the exclusive type, grade or
quality of material to be used in the Building.
(k) "Assessments" shall mean all assessments, charges,
fees and other expenses for which Landlord is obligated, in its capacity as the
owner of the Property, pursuant to any restrictive covenants or other recorded
matters of title now or hereafter affecting the Property (collectively, the
"Title Matters"), BEING THE ASSOCIATION FEES AND CHARGES IN UPON LANDLORD BY
ORLANDO CENTRAL PARK, INC.
2. LEASE GRANT. Subject to and upon the terms herein
set forth, Landlord leases to Tenant and Tenant leases from Landlord the
Premises. LANDLORD HEREBY REPRESENTS AND WARRANTS THAT IT HOLDS FEE SIMPLE TITLE
TO THE PROPERTY. THE PROPERTY IS SUBJECT TO THE EASEMENTS AND OTHER
ENCUMBRANCES WHICH EXISTED ON THE DATE LANDLORD PURCHASED THE PROPERTY, AS
SHOWN ON EXHIBIT E ATTACHED HERETO AND MADE A PART HEREOF.
3. LEASE TERM. This Lease shall continue in force
during a period beginning on the Commencement Date and continuing until the
expiration of the Lease Term, unless this Lease is sooner terminated or
extended to a later date under any other term or provision hereof. In the event
the actual Commencement Date is other than the date identified in Section 1(d),
rental under this Lease shall not commence until said revised Commencement
Date, and the Lease Term shall commence and the expiration date shall be
extended so as to give effect to the full stated Lease Term. Should the Lease
Term commence on a date other than that specified in Section 1(d), Landlord
will send Tenant a written statement of such adjusted Commencement Date and
expiration date, and, if Landlord requests, Tenant will confirm such adjusted
dates in writing. IN THE EVENT THE PREMISES IS NOT READY FOR TENANT'S OCCUPANCY
BY JULY 31, 1999, UNLESS DUE TO (i) FORCE MAJEURE DELAYS DESCRIBED IN XXXXXXX
00 XXXXX, (xx) DELAYS IN OBTAINING PERMITS FROM ANY APPLICABLE GOVERNMENTAL
AUTHORITIES, (iii) DELAYS CAUSED BY TENANT, OR (iv) DELAYS IN DELIVERY OF
SPECIFIC MATERIALS REQUIRED BY TENANT'S PLANS AND SPECIFICATIONS FOR THE
PREMISES, THEN TENANT SHALL BE ENTITLED TO ONE DAY OF FREE RENT HEREUNDER FOR
EACH DAY OF DELAY BEYOND JULY 31, 1999 UNTIL SUCH TIME AS THE PREMISES ARE
READY FOR TENANT'S OCCUPANCY.
4. USE AND POSSESSION. The premises shall be used for
LIGHT MANUFACTURING, ASSEMBLY AND OFFICE PURPOSES, and for no other purpose.
Tenant agrees not to use or permit the use of the Premises for any purpose which
is illegal, dangerous to life, limb or property, or
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which, in Landlord's opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. In addition, Tenant
shall, at its own cost and expense, comply with all federal, state and
municipal laws, ordinances, rules and regulations issued by any governmental
authority and all Title Matters. Without limiting the foregoing, Tenant shall
not cause, nor permit, any hazardous or toxic substances to be brought upon,
produced, stored, used, discharged or disposed of in, on or about the Premises
without the prior written consent of Landlord and then only in compliance with
all applicable environmental laws, except as permitted in Section 48 below.
No routine repair or servicing of any automobile or truck shall be
allowed in the Premises, or in any parking or loading areas, roadways or other
areas serving the Building. No vehicle abandoned or disabled or in a state of
non-operation or disrepair shall be left upon the Property, and Tenant shall
enforce this restriction against Tenant's, employees, agents, visitors,
licensees, invitees, contractors and customers. Should Landlord determine that
a violation of this restriction has occurred, Landlord shall have the right to
cause the offending vehicle, equipment, trailer or machinery to be removed from
Landlord's Property, and all costs of such removal shall be the obligation of
the Tenant, and such costs shall be paid to Landlord by Tenant as additional
rent within ten (10) days of written notice to Tenant.
Landlord agrees to have the 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. Such work shall be performed in accordance with the terms of the Work
Letter attached hereto as Exhibit "C" and incorporated herein. If Landlord is
unable to give possession of the Premises on the Commencement Date by reason of
the holding over of any prior tenant or tenants, incomplete construction, or
for any other reason, unless the same shall result from causes attributable to
Tenant, there shall be an abatement or adjustment of the Rent to be paid
hereunder for that period of time, and the Lease Term 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 Premises, If the Premises have not been tendered one hundred
FOUR (104) days after the scheduled Commencement Date, Tenant shall have the
right to terminate this Lease after fifteen (15) days' written notice to
Landlord, provided such notice is given prior to the date on which the Premises
are tendered to Tenant.
The Premises shall be deemed substantially completed and available to
Tenant upon issuance to Landlord of a certificate of occupancy by the
appropriate governmental authority AND A CERTIFICATE OF THE ARCHITECT THAT THE
PREMISES HAVE BEEN COMPLETED (notwithstanding the necessity of minor repairs
and adjustments still to be made by the Landlord), or when Tenant actually
occupies the Premises, whichever occurs first. If the substantial completion of
the Premises by Landlord is delayed due to any act or omission of Tenant or
Tenant's representatives, including any delays by Tenant in the submission of
the plans, drawings, specifications or other information, or in obtaining
permits for its installations, or in approving any working drawings or
estimates or in giving any authorization or approval, the Premises shall be
deemed substantially completed on the date when they would have been ready but
for such delay.
5. Rent.
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(a) Base Rental. Tenant agrees to pay the Base Rental to Landlord
during the Lease Term, without any setoff, deduction or counterclaim
whatsoever, together with all such other sums of money as shall become due
hereunder as additional rent (all of which are sometimes herein collectively
called "Rent"). Except as otherwise provided herein, the annual Base Rental for
each calendar year or portion thereof during the Lease Term shall be due and
payable in advance in twelve (12) equal installments on the first day of each
calendar month during the Lease Term, and Tenant hereby agrees to pay such Base
Rental and any adjustments thereto to Landlord at X.0. Xxx 000000, Xxxxxxx,
Xxxxxxx 00000-0000 (or such other address as may be designated by Landlord in
writing from time to time) monthly, in advance, and without demand. Any sum due
from Tenant to Landlord which is not paid when due shall bear interest from the
date due until the date paid at the annual rate of four percent (4%) above the
prime rate as announced from time to time by The Wall Street Journal but in no
event in excess of the maximum rate permitted by law (the "Default Rate"). If
the Lease Term commences on a day other than the first day of a month or
terminates on a day other than the last day of a month, then the installments
of Base Rental and adjustments thereto and any additional rent for such month
or months shall be prorated, based on the number of days in such month. Tenant
shall pay Landlord a late charge for any Rent payment which is paid more than
TEN (10) days after its due date, equal to five percent (5%) of such payment;
PROVIDED THAT SUCH LATE CHARGE SHALL NOT BE IMPOSED UNTIL THE FOURTH (4TH) SUCH
LATE PAYMENT EACH LEASE YEAR, AND FOR EACH SUBSEQUENT LATE PAYMENT DURING THE
SAME LEASE YEAR. The Base Rental due for the first month of the Lease Term
SHALL BE PAID TO LANDLORD ON THE COMMENCEMENT DATE.
(b) Operating Expenses. Tenant shall pay as additional rent its
pro rata share of any Operating Expenses (as hereinafter defined), Landlord
shall deliver to Tenant each year, on or before March 31 (or within a
reasonable time thereafter), a statement setting forth the amount of Operating
Expenses paid or incurred by Landlord, directly or indirectly, during the
immediately preceding year. This statement shall delineate Tenant's pro rata
share of the Operating Expenses for the preceding year and the estimated amount
of Tenant's pro rata share of Operating Expenses for the following year. Within
thirty (30) days after delivery of the statement, Tenant shall pay to Landlord,
as additional rent, Tenant's pro rata share of the previous year's Operating
Expenses not previously paid. Commencing with the rental payment immediately
following the receipt of the statement of Operating Expenses, Tenant shall
remit as additional rent one-twelfth (1/12) of Tenant's pro rata share of the
anticipated Operating Expenses for the following year in addition to the
scheduled Base Rental.
If the Lease Term begins after January 1 or ends prior to December 31,
Tenant's pro rata share of the Operating Expenses shown on the statement
delivered at the end of such year shall be reduced proportionately. In the
event Tenant's share of the Operating Expenses is less than the amount
previously estimated and collected by Landlord, Tenant's excess shall be
applied to amounts owed to Landlord, and if no amounts are owed, then the
excess shall be remitted to Tenant.
The term "Operating Expenses" as used herein shall include all direct
costs of administration, operation, repair and maintenance of the Property, the
Building and its Common Areas and appurtenances, as determined in accordance
with generally accepted accounting principles, and shall include Landlord's
costs and expenses incurred in connection with the
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following by way of illustration but not limitation: the cost of labor,
materials and services for the administration, operation, repair and
maintenance of the Property and the Building, its common areas and its
appurtenances, including but not Limited to license, permit and inspection
fees; water and sewer charges; garbage and waste disposal; gas, electricity and
other utilities consumed in the Common Areas of the Property or Building;
heating, air conditioning and ventilation repairs; elevator service; plumbing
service and other normal repairs; janitorial and cleaning service in the Common
Areas of the Building; landscaping; parking lot cleaning, repairs and
maintenance; association fees, including any charges imposed upon the Property
by Orlando Central Park, Inc. or any association created by it for maintenance
of Common Areas within the development of which the Property is a part; pest
control; maintenance contracts; security services or personnel (if provided to
the Building); insurance for fire, extended coverage, general liability and
other insurance which Landlord is required to maintain on the Building and its
appurtenances either by the terms of this Lease or by the holder of any
mortgage or deed to secure debt encumbering the Building, or which Landlord
reasonably deems to be necessary in connection with the ownership and
operation of the Building management fees; supplies, materials, tools,
equipment and general costs associated therewith, all accrued and based on a
calendar year operation; Taxes; Assessments and Common Area costs described in
Section 8 below.
The Operating Expenses shall not include the cost of any repairs or
replacements which by sound accounting practices should be capitalized, except
as follows: (i) if, for any reason, Landlord shall make an expenditure,
directly or indirectly, which is intended to reduce any of the Operating
Expenses and which, by generally accepted accounting principles would be
created as a capital expenditure, the annual Operating Expenses shall also
include the amortization of such capital expenditure based upon a useful life
of not less than five (5) years; and (ii) in the event that any local, state or
federal government shall, by any legally enforceable legislative,
administrative or judicial action, whether by ordinance, act, statute, order,
mandate, rule, regulation or otherwise, require during the Lease Term any
alteration of or improvement to any portion of the Building, excluding the
Premises or any other premises leased or available to be leased by other
tenants of the Building (a "Mandated Alteration"), which, by generally accepted
accounting principles, would be treated as a capital expenditure, then,
provided that such Mandated Alteration is the result of the adoption of a new
or changed ordinance, act, statute, order, mandate, rule or regulation or
interpretation thereof not existing on the Commencement Date of this Lease, the
annual Operating Expenses shall also include the annual amortization of such
capital expenditure based upon a useful life of not less than five (5) years.
In connection therewith, the decision of Landlord's accountants shall be final.
(c) Increase in Insurance Premiums, Tenant shall pay to Landlord,
as additional rent hereunder, all increases in any insurance premiums under
those policies of insurance maintained by the Landlord hereunder, attributable
to or resulting from the Tenant's use and occupancy of the Premises or any
other action or omission of Tenant.
(d) Sales Tax. In addition to the Rent and any other sums or
amounts required to be paid by Tenant to Landlord pursuant to the provisions
of this Lease, Tenant shall also pay to Landlord, simultaneously with such
payment of such Rent or other sums or amounts, the amount of any applicable
sales, use or excise tax on any such Rent or other sums or amounts so paid by
Tenant to Landlord, whether the same be levied, imposed or assessed by the
State of Florida or any other federal, state, county or municipal governmental
entity or agency. Any such sales, use
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or excise taxes shall be paid by Tenant to Landlord at the same time that each
of the amounts with respect to which such taxes are payable are paid by Tenant
to Landlord.
(E) AUDIT. TENANT SHALL HAVE THE RIGHT TO HAVE LANDLORD'S BOOKS
AND RECORDS PERTAINING TO OPERATING EXPENSES FOR ANY YEAR DURING THE LEASE TERM
REVIEWED, COPIED AND AUDITED ("TENANT'S AUDIT") PROVIDED THAT (i) SUCH RIGHT
SHALL NOT BE EXERCISED MORE THAN ONCE DURING ANY CALENDAR YEAR; (ii) IF TENANT
ELECTS TO CONDUCT TENANT'S AUDIT, TENANT SHALL PROVIDE LANDLORD WITH WRITTEN
NOTICE THEREOF NO LATER THAN THIRTY (30) DAYS FOLLOWING TENANT'S RECEIPT OF
LANDLORD'S STATEMENT OF OPERATING EXPENSES FOR THE YEAR TO WHICH TENANT'S AUDIT
WILL APPLY; (iii) TENANT SHALL HAVE NO RIGHT TO CONDUCT TENANT'S AUDIT IF
TENANT IS, EITHER AT THE TIME TENANT FORWARDS LANDLORD WRITTEN NOTICE THAT
TENANT'S AUDIT WILL BE CONDUCTED OR AT ANY TIME DURING TENANT'S AUDIT, THEN IN
DEFAULT UNDER THIS LEASE; (iv) CONDUCTING TENANT'S AUDIT SHALL NOT RELIEVE
TENANT FROM THE OBLIGATION TO PAY TENANT'S PRO RATA SHARE OF OPERATING
EXPENSES, AS BILLED BY LANDLORD, PENDING THE OUTCOME OF SUCH AUDIT; (v)
TENANT'S RIGHT TO CONDUCT SUCH AUDIT FOR ANY CALENDAR YEAR SHALL EXPIRE THIRTY
(30) DAYS FOLLOWING TENANT'S RECEIPT OF LANDLORD'S STATEMENT OF OPERATING
EXPENSES FOR SUCH YEAR, AND IF LANDLORD HAS NOT RECEIVED WRITTEN NOTICE OF SUCH
AUDIT WITHIN SUCH THIRTY (30) DAY PERIOD, TENANT SHALL HAVE WAIVED ITS RIGHT TO
CONDUCT TENANT'S AUDIT FOR SUCH CALENDAR YEAR; (vi) TENANT'S AUDIT SHALL BE
CONDUCTED BY A CERTIFIED PUBLIC ACCOUNTANT NOT EMPLOYED BY OR OTHERWISE
AFFILIATED WITH TENANT, EXCEPT TO THE EXTENT THAT SUCH ACCOUNTANT HAS BEEN
ENGAGED BY TENANT TO CONDUCT TENANT'S AUDIT; (vii) TENANT'S AUDIT SHALL BE
CONDUCTED AT LANDLORD'S OFFICE WHERE THE RECORDS OF THE YEAR IN QUESTION ARE
MAINTAINED BY LANDLORD, DURING LANDLORD'S NORMAL BUSINESS HOURS; AND (viii)
TENANT'S AUDIT SHALL BE CONDUCTED AT TENANT'S SOLE COST AND EXPENSE, UNLESS
SUCH AUDIT DEMONSTRATES TO LANDLORD'S REASONABLE SATISFACTION THAT LANDLORD HAS
OVERSTATED THE OPERATING EXPENSES FOR THE YEAR AUDITED BY MORE THAN FIVE
PERCENT (5%), IN WHICH CASE LANDLORD SHALL REIMBURSE TENANT FOR ANY OVERPAYMENT
OF TENANT'S PRO RATA SHARE OF SUCH OPERATING EXPENSES, AS WELL AS TENANT'S
ACTUAL REASONABLE COST INCURRED IN CONDUCTING TENANT'S AUDIT, WITHIN THIRTY
(30) DAYS OF LANDLORD'S RECEIPT OF DOCUMENTATION REASONABLY ACCEPTABLE TO
LANDLORD REFLECTING AMOUNT OR SUCH OVERPAYMENT AND THE COST OF TENANT'S AUDIT.
6. SERVICES TO BE FURNISHED BY LANDLORD.
(a) Provided Tenant is not in default under this Lease,
Landlord agrees to make available to the Premises; (i) water; (ii) electric
service, and (iii) electrical lighting service for all Common Areas in the
manner and to the extent deemed by Landlord to be standard. Tenant, at its sole
cost and expense, shall pay for its own utility consumption in the Premises.
(b) THE FAILURE BY LANDLORD TO ANY EXTENT TO FURNISH, OR
THE INTERRUPTION OR TERMINATION OF THESE DEFINED SERVICES, IN WHOLE OR ANY
PART, RESULTING FROM CAUSES OTHER THAN THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD, SHALL NOT RENDER LANDLORD LIABLE IN ANY RESPECT NOR BE
CONSTRUED AS AN EVICTION OF TENANT, NOR WORK AS AN ABATEMENT OF RENT, NOR
RELIEVE TENANT FROM THE OBLIGATION TO FULFILL ANY COVENANT OR AGREEMENT HEREOF.
Should any of the equipment or machinery used in the provision of such services
for any cause cease to function properly, Tenant shall have no claim for offset
or abatement of rent or damages on account of an interruption in service
occasioned thereby or resulting therefrom.
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7. CONDITION OF THE PREMISES. All installations and improvements now or
hereafter placed on the Premises shall be for Tenant's account and at Tenant's
cost, except as otherwise expressly provided for herein (and Tenant shall pay ad
valorem taxes and increased insurance thereon or attributable thereto), which
cost shall be payable by Tenant to Landlord upon demand as additional rent.
Tenant's taking possession of the Premises shall be conclusive evidence that
Tenant has inspected the Premises and accepts the Premises "AS IS" and that the
Premises were in good order and satisfactory condition when Tenant took
possession, SUBJECT TO ANY WORK WHICH LANDLORD IS REQUIRED TO PERFORM PURSUANT
TO EXHIBIT "C" hereof.
8. MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD. Except as otherwise
expressly provided herein and so long as such repairs are not required as a
result of the actions or inactions of Tenant, its agents, contractors, employees
or invitees, in which event Tenant shall be responsible to make such repairs at
its expense, Landlord shall not be required to make any repairs to the Premises
other than repairs to exterior and load-bearing walls, floors (excluding the
replacement of floor coverings) and the roof of the Building, which may be
required from time to time but only after such required repairs have been
requested by Tenant in writing. In the interior of the Building, Landlord shall
only be responsible for maintaining and repairing the Common Areas, if any.
Landlord shall also cause the exterior Common Areas to be maintained and
repaired. The cost of any such maintenance and repairs by Landlord as set forth
in this Section 8 shall be included in Operating Expenses as described in
Section 5(b) above. Landlord may also perform certain maintenance and repairs of
items which are considered Common Areas for the Gran Park at South Park
development (the "Development"), including without limitation, landscaping along
the public right of way and maintenance of private driveways throughout the
Development. The Property shall be billed its pro rata share of such costs
relating to the Common Areas of the Development based upon a fraction in which
the numerator is the square footage of the Property and the denominator is the
total square footage of all land within the Development. The amount of such
costs so allocated to the Property shall then become Operating Expenses for the
Property for which Tenant shall pay its pro rata share.
9. MAINTENANCE OF PREMISES BY TENANT.
(a) Tenant shall maintain all parts of the Premises, including the
HVAC equipment (except for maintenance and repair work for which Landlord is
expressly responsible under Section 8 above) in good condition and promptly make
all necessary repairs and replacements to the Premises, Tenant shall also be
responsible for the cleaning and sweeping of the Premises. Tenant shall be
responsible for disposal of its trash and refuse from the Premises and will
maintain adequate receptacles for such disposal, the design, placement and
capacity of such receptacles to be subject to the prior approval of Landlord.
TENANT SHALL BE PERMITTED TO MAINTAIN TWO TRASH DUMPSTERS, IN THE LOCATIONS
SHOWN ON EXHIBIT B ATTACHED HERETO. Outdoor storage of trash, refuse or any
other material and receptacles or containers not approved by Landlord is
strictly prohibited. At its sole cost and expense, Tenant shall provide interior
pest and insect extermination at the Premises as often as is reasonably
necessary to eliminate any pests or insects, whether endemic to the Building or
specific to the Premises or Tenant's use thereof.
(b) Subject to Landlord's obligations set forth in Section 6 above,
Tenant shall maintain the hot water equipment and the HVAC system in good repair
and condition and in accordance with all applicable laws and such equipment
manufacturers' suggested
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operation/maintenance service program. THE HVAC SYSTEM SERVING THE PREMISES
SHALL NOT SERVE ANY OTHER SPACE WITHIN THE BUILDING. Tenant shall enter into a
regularly scheduled preventive maintenance/service contract for the hot water
equipment and the HVAC system, in form and substance and with a contractor
reasonably acceptable to Landlord, and shall promptly deliver copies thereof to
Landlord. At least fourteen (14) days prior to the end of the Lease Term (UNLESS
TENANT HAS ELECTED EARLY TERMINATION PURSUANT TO SECTION 52 BELOW), Tenant, at
its sole cost and expense, shall cause to be delivered to Landlord a certificate
from an engineer reasonably acceptable to Landlord certifying that the hot water
equipment and the HVAC system are then in good repair and working order.
(c) If Tenant fails to perform any of Tenant's maintenance or repair
obligations, and if such failure continues for thirty (30) days after written
notice thereof is delivered to Tenant, Landlord may perform such obligation, in
which event Tenant shall pay to Landlord the reasonable cost incurred by
Landlord in performing such obligation, as additional rent, within thirty (30)
days after Landlord's written request therefor.
(d) Tenant acknowledges that Landlord is not providing security
services of any kind to the Premises or for Tenant's property and that the keys
given to Tenant for the Premises may not be secure. At its sole expense, Tenant
shall provide whatever security and/or alarm systems Tenant deems necessary or
appropriate for the protection of the Premises and of Tenant's personal property
and personnel located therein, including, if Tenant desires to do so, installing
new locks for the Premises with new keys. Tenant shall provide to Landlord
copies of all keys and access codes to allow Landlord entry to the Premises. In
no event shall Landlord be responsible for, and Tenant waives any and all claims
arising from; the loss or damage to any of Tenant's personal property situated
in and on the Premises. Landlord may elect, but shall have no obligation, to
provide general area security or guard services and it may discontinue such
security or guard services without notice. At its expense, Tenant is also
responsible for the maintenance, repair or replacement of any mechanical,
security, and fire protection systems which Tenant has installed within the
Premises. Tenant is expressly advised that if Tenant should place any fixtures,
inventory or equipment with, in or on the Premises prior to the time the
Premises are completed and delivered to the Tenant, the risk of loss or damage
to such inventory, fixtures, or equipment will be greatly increased in view of
the fact that, out of necessity, numerous people will be permitted access to the
Premises for the purpose of completion of any work. All such risk of loss or
damage shall be borne exclusively by Tenant and not by Landlord, and Tenant
hereby waives any claim for any such loss or damage against Landlord relating
thereto.
10. GRAPHICS. Landlord shall provide and install, at Tenant's cost, all
letters or numerals on doors in the Premises; all such letters and numerals
shall be in the standard graphics for the Building and no others shall be used
or permitted on the Premises without Landlord's prior written consent.
11. SURRENDER OF PREMISES. Tenant agrees to and shall, upon expiration
or sooner termination of the Lease Term, promptly surrender and deliver the
Leased Premises to Landlord without demand therefor in good condition, ordinary
wear and tear and damage by the elements, fire, or other cause beyond the
reasonable control of Tenant excepted.
12. REPAIRS AND ALTERATIONS BY TENANT. Landlord shall have the right,
at Tenant's
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cost and expense, to repair or replace any damage done to the Premises and the
Building, or any part thereof, caused by Tenant or Tenant's agents, employees,
invitees, or visitors, and, to the extent such costs are not covered by Tenant's
insurance proceeds, Tenant shall pay the cost thereof to Landlord on demand as
additional rent. Tenant agrees with Landlord not to make or allow to be made any
alterations to the Premises, or place signs on the Premises which are visible
from outside the Premises, without first obtaining the written consent of
Landlord in each such instance, which consent may be withheld for any reason
whatsoever or given on such conditions as Landlord may elect. TENANT MAY PLACE
VENDING MACHINES WITHIN THE PREMISES. In the event Tenant proposes to make any
alteration, Tenant shall, prior to commencing such alteration, submit to
Landlord for prior written approval: (i) detailed plans and specifications; (ii)
the names, addresses and copies of contracts for all contractors; (ii) all
necessary permits evidencing compliance with all applicable governmental rules,
regulations and requirements; (iv) certificates of insurance in form and amounts
required by Landlord, naming Landlord, its managing agent and any other parties
designated by Landlord as additional insureds; and (v) all other documents and
information as Landlord may reasonably request in connection with such
alteration. IN THE EVENT TENANT REQUESTS LANDLORD TO PERFORM SUCH ALTERATIONS,
Tenant agrees to promptly pay all of Landlord's charges for and costs related to
any alteration, repair or service requested by Tenant that is not specifically
the responsibility of the Landlord, which charges and costs shall be at Tenant's
sole expense and shall include a fifteen percent (15%) supervision fee in
addition to the taxes, permits and other charges required by applicable
governmental authorities, insurers, laws, regulations and/or requirements for
review and/or approval, if applicable, of all such items and supervision of the
alterations, repairs and services. TENANT SHALL NOT BE REQUIRED TO USE LANDLORD
TO PERFORM SUCH ALTERATIONS. Neither approval of the plans and specifications
nor supervision of the alteration by Landlord shall constitute a representation
or warranty by Landlord as to the accuracy, adequacy, sufficiency or propriety
of such plans and specifications or the quality of workmanship or the compliance
of such alteration with applicable law. Tenant shall pay the entire cost of the
alteration and, if requested by Landlord, shall deposit with Landlord, prior to
the commencement of the alteration, security for the payment and completion of
the alteration in form and amount required by Landlord. Each alteration shall be
performed in a good and workmanlike manner, in accordance with the plans and
specifications approved by Landlord, and shall meet or exceed the standards for
construction and quality of materials established by Landlord for the Building.
In addition, each alteration shall be performed in compliance with all
applicable governmental and insurance company laws, regulations and
requirements. Each alteration shall be performed by Landlord or under Landlord's
supervision, and in harmony with Landlord's employees, contractors and other
tenants. Any and all alterations to the Premises shall become the property of
Landlord upon termination of this Lease (except for movable equipment or
furniture owned by Tenant). Landlord may, nonetheless, require Tenant to remove
any and all fixtures, equipment and other improvements installed on the Premises
(the "Additional Improvements"). In the event Landlord so elects, and Tenant
fails to remove the Additional Improvements, Landlord may remove the Additional
Improvements at Tenant's cost, and Tenant shall pay Landlord on demand all
costs incurred in removing Additional Improvements.
13. NET LEASE. Landlord and Tenant acknowledge and agree that both
parties intend that this Lease shall be and constitute what is generally
referred to as a "triple net" or "absolute net" lease, such that Tenant shall be
obligated hereunder to pay all costs and expenses incurred with respect to, and
associated with, the Premises and the business operated thereon and therein,
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and Tenant's pro rata share of Operating Expenses, including, without
limitation, all taxes and assessments, utility charges, insurance costs,
maintenance costs and repair, replacement and restoration expenses (all as more
particularly herein provided), together with any and all other assessments,
charges, costs and expenses of any kind or nature whatsoever related to, or
associated with, the Premises and the business operated thereon and therein, and
the Building and the Property; provided, however, that Landlord shall
nonetheless be obligated to pay any debt service on any mortgage encumbering
Landlord's fee simple interest in the Property, and Landlord's personal income
taxes with respect to the Rents received by Landlord under this Lease. Except as
expressly hereinabove provided, Landlord shall bear no cost or expense of any
type or nature with respect to, or associated with, the Premises, the Building,
or the Property. NOTWITHSTANDING ANYTHING, SET FORTH ABOVE TO THE CONTRARY,
LANDLORD SHALL PAY ALL SUMS AND PERFORM ALL OBLIGATIONS OTHERWISE SPECIFICALLY
TO BE REQUIRED TO BE PAID AND/OR PERFORMED BY LANDLORD PURSUANT TO THE TERMS OF
THIS LEASE.
14. LAWS AND REGULATIONS. Tenant agrees to comply with all applicable
laws, ordinances, rules, and regulations of any governmental entity or agency
having jurisdiction over the Premises, including without limitation, the
Americans with Disabilities Act. LANDLORD AGREES TO COMPLY WITH ALL APPLICABLE
LAWS, ORDINANCES, RULES, AND REGULATIONS OF A GOVERNMENTAL ENTITY OR AGENCY
(INCLUDING THE AMERICANS WITH DISABILITIES ACT) WITH RESPECT TO THE STRUCTURE OF
THE BUILDING AND THE EXTERIOR COMMON AREAS AROUND THE BUILDING.
15. BUILDING RULES AND REGULATIONS. Tenant will comply with the
Building Rules and Regulations adopted and altered by Landlord from time to time
and will cause all of its agents, employees, invitees and visitors to do so. All
changes to such Building Rules and Regulations shall be sent by Landlord to
Tenant in writing. A copy of the proposed initial Building Rules and Regulations
applicable to the Building and the Premises is attached hereto as Exhibit "D"
and incorporated herein.
16. ENTRY BY LANDLORD. Tenant agrees to permit Landlord or its agents
or representatives to enter into and upon any part of the Premises at all
reasonable hours UPON 24 HOURS' NOTICE (and in emergencies at all times )
WITHOUT NOTICE) to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants or insurers, or to clean or make repairs,
alterations or additions thereto, and Tenant shall not be entitled to any
abatement or reduction of rent by reason thereof. DURING THE LAST NINE MONTHS OF
THE LEASE TERM, LANDLORD MAY SHOW THE PREMISES TO PROSPECTIVE TENANTS WITHOUT
HAVING TO GIVE SUCH 24 HOURS' NOTICE TO TENANT. EXCEPT WITH RESPECT TO
EMERGENCIES, LANDLORD AGREES TO BE ESCORTED AT ALL TIMES BY A REPRESENTATIVE OF
TENANT WHILE LANDLORD IS IN THE PREMISES.
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17. ASSIGNMENT AND SUBLETTING.
(a) Tenant may not assign, sublease or transfer any interest in
this Lease or encumber this Lease without first obtaining Landlord's prior
written consent, which consent SHALL NOT BE UNREASONABLY WITHHELD. TENANT SHALL
PROVIDE LANDLORD WITH ANY AND ALL DOCUMENTS, INSTRUMENTS AND AGREEMENTS
PERTAINING TO SUCH PROPOSED ASSIGNMENT REASONABLY NECESSARY FOR LANDLORD TO
EVALUATE SUCH PROPOSED ASSIGNMENT. AT A MINIMUM, WITHOUT LIMITATION, FOR EACH
PROPOSED ASSIGNMENT THE FOLLOWING REQUIREMENTS MUST BE SATISFIED: (i) TENANT
SHALL NOT BE RELEASED FROM ANY OBLIGATIONS OR ANY LIABILITIES HEREUNDER AS A
RESULT OF ANY SUCH ASSIGNMENT; (ii) TENANT SHALL NOT BE IN DEFAULT HEREUNDER AT
THE TIME IT REQUESTS LANDLORD'S CONSENT OR ON THE EFFECTIVE DATE OF THE PROPOSED
ASSIGNMENT; (iii) LANDLORD SHALL BE PROVIDED WITH SUCH INFORMATION REGARDING THE
NAME, IDENTITY, BUSINESS REPUTATION AND CREDITWORTHINESS OF THE PROPOSED
ASSIGNEE AS LANDLORD SHALL REASONABLY REQUEST; AND (iv) THE ASSIGNEE SHALL
DELIVER TO LANDLORD A WRITTEN AGREEMENT WHEREBY IT ASSUMES JOINTLY AND SEVERALLY
WITH TENANT ALL OF THE OBLIGATIONS AND LIABILITIES OF TENANT UNDER THIS LEASE.
Any attempted assignment or sublease by Tenant in violation of the terms and
covenants of this paragraph shall be void. TENANT SHALL HAVE THE RIGHT TO ASSIGN
THIS LEASE TO ANY EQUITY WHICH PURCHASES AT LEAST 50% OF TENANT OR ANY ENTITY
INTO WHICH TENANT MERGES. TENANT SHALL ALSO HAVE THE RIGHT TO ASSIGN THIS LEASE
OR SUBLET ALL OR ANY PART OF THE PREMISES TO ITS AFFILIATES. CHANGES IN THE
ownership of Tenant WHICH DO NOT RESULT IN A CHANGE OF CONTROL SHALL NOT BE
deemed an assignment UNDER THIS LEASE AND SHALL NOT REQUIRE LANDLORD'S CONSENT.
IN ADDITION, A PUBLIC OFFERING OF TENANT'S STOCK SHALL NOT BE DEEMED AN
ASSIGNMENT UNDER THIS LEASE AND SHALL NOT REQUIRE LANDLORD'S CONSENT.
(b) If Tenant requests Landlord's consent to an assignment of this
Lease or subletting of all or part of the Premises, Landlord shall either: (i)
approve such sublease or assignment (but no approval of an assignment or
sublease shall relieve Tenant of any liability hereunder); (ii) negotiate
directly with the proposed subtenant or assignee and (in the event Landlord is
able to reach agreement with such proposed tenant) upon execution of a lease
with such tenant, terminate this Lease (in part or in whole, as appropriate)
upon thirty (30) days' notice; or (iii) deny such sublease or assignment. If
Landlord should fail to notify Tenant in writing of its decision within a thirty
(30) day period after Landlord is notified in writing of the proposed
assignment, or sublet, then Landlord shall be deemed to have refused to consent
to an assignment or sublet and to have elected to keep this Lease in full force
and effect.
(c) All cash or other proceeds of any assignment, sale or sublease
of Tenant's interest in this Lease and/or the Premises, whether consented to by
Landlord or not, shall be paid to Landlord notwithstanding, the fact that such
proceeds exceed the rent called for hereunder, unless Landlord agrees to the
contrary in writing, mid Tenant hereby assigns all rights it might have or ever
acquire in any such proceeds to Landlord. This covenant and assignment shall
benefit Landlord and its successors in ownership of the Building and shall bind
Tenant and Tenant's heirs, executors, administrators, personal representatives,
successors and assigns. Any assignee, sublessee or purchaser of Tenant's
interest in this Lease (all such assignees, sublessees or purchasers being
hereinafter referred to as "Successors"), by occupying the Premises and/or
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assuming Tenant's obligations hereunder, shall be deemed to have assumed
liability to Landlord for all amounts paid to persons other than Landlord by
such Successor in consideration of any such sale, assignment or subletting, in
violation of the provisions hereof.
(d) No assignment or subletting shall ever relieve Tenant of any
liability hereunder.
18. MECHANIC'S LIENS. Tenant shall not create or cause to be imposed,
claimed or filed upon the Premises, or any portion thereof, or upon the interest
of Landlord therein, any lien, charge or encumbrance whatsoever. If, because of
any act or omission of Tenant, any such lien, charge or encumbrance shall be
imposed, claimed or filed, Tenant shall, at its sole cost and expense, cause the
same to be fully paid and satisfied or otherwise discharged of record (by
bonding or otherwise) and Tenant shall indemnify and save and hold Landlord
harmless from and against any and all costs, liabilities, suits, penalties,
claims and demands whatsoever, and from and against any and all attorneys' fees,
at both trial and all appellate levels, resulting or on account thereof and
therefrom. In the event that Tenant shall fail to comply with the provisions of
this Section 18, Landlord shall have the option of paying, satisfying or
otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance
and Tenant agrees to reimburse Landlord, upon demand and as additional rent, for
all sums so paid and for all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon, until paid.
Landlord's interest in the Premises shall not be subjected to liens of
any nature by reason of Tenant's construction, alteration, renovation, repair,
restoration, replacement or reconstruction of any improvements on or in the
Premises, or by reason of any other act or omission of Tenant (or of any person
claiming by, through or under Tenant) including, but not limited to, mechanics'
and materialmen's liens. All persons dealing with Tenant are hereby placed on
notice that such persons shall not look to Landlord or to Landlord's credit or
assets (including Landlord's interest in the Premises) for payment or
satisfaction of any obligations incurred in connection with the construction,
alteration, renovation, repair, restoration, replacement or reconstruction
thereof by or on behalf of Tenant. Tenant has no power, right or authority to
subject Landlord's interest in the Premises to any mechanic's or materialmen's
lien or claim of lien. If a lien, a claim of lien or an order for the payment of
money shall be imposed against the Premises on account of work performed, or
alleged to have been performed, for or on behalf of Tenant, Tenant shall, within
thirty (30) days after written notice of the imposition of such lien, claim or
order, cause the Premises to be released therefrom by the payment of the
obligation secured thereby or by furnishing a bond or by any other method
prescribed or permitted by law. If a lien is released, Tenant shall thereupon
furnish Landlord with a written instrument of release in form for recording or
filing in the appropriate office of land records of Orange County, Florida, and
otherwise sufficient to establish the release as a matter of record.
Tenant may, at its option, contest the validity of any lien or claim of
lien if Tenant shall have first posted an appropriate and sufficient bond in
favor of the claimant or paid the appropriate sum into court, if permitted by
law, and thereby obtained the release of the Premises from such lien. If
judgment is obtained by the claimant under any lien, Tenant shall pay the same
immediately after such judgment shall have become final and the time for appeal
therefrom has expired without appeal having been taken. Tenant shall, at its own
expense, defend the interests of Tenant and Landlord in any and all such suits;
provided, however, that Landlord may, at its election, engage in its own counsel
and assert its own defenses, in which event Tenant
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shall cooperate with Landlord and make available to Landlord all information and
data which Landlord deems necessary or desirable for such defense.
Prior to commencement by Tenant of any work on the Premises which shall
have been previously permitted by Landlord as provided in this Lease, Tenant
shall record or file a notice of the commencement of such work in the land
records of Orange County, Florida, identifying Tenant as the party for whom such
work is being performed, stating such other matters as may be required by law
and requiring the service of copies of all notices, liens or claim of lien upon
Landlord. Any such notice of commencement shall clearly reflect that the
interest of Tenant in the Premises is that of a leasehold estate and shall also
clearly reflect that the interest of Landlord as the fee simple owner of the
Premises shall not he subject to mechanics or materialmen's liens on account of
the work which is the subject of such notice of commencement. A copy of any such
notice of commencement shall be furnished to and approved by Landlord and its
attorneys prior to the recording or filing thereof, as aforesaid.
19. PROPERTY AND LIABILITY INSURANCE. Landlord shall maintain fire and
extended coverage insurance on the Building and the Premises in such amounts as
Landlord shall require. The costs of such insurance shall be included in
Operating Expenses, and payments for losses thereunder shall be made solely to
Landlord or the mortgagees of Landlord as their interests shall appear.
Landlord, as a part of the Operating Expenses, shall maintain a policy or
policies of commercial general liability insurance with respect to its
activities in the Building and on the Property, such insurance to afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage or combination thereof. Tenant shall purchase and
maintain such insurance as will protect it from claims set forth below which may
arise out of or result from its operations under this Lease, whether such
operations be by itself, by any subtenant or by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable:
(1) claims under workers compensation, disability benefit, and other
similar employee acts;
(2) claims for damages because of bodily injury, occupational
sickness or disease, or death of its employees;
(3) claims for damages because of bodily injury, sickness or
disease, or death of any person other than employees;
(4) claims, for damages insured by usual personal injury liability
coverage which are sustained (a) by any person as a result of any
offense directly or indirectly related to the employment of such person
by Tenant, or (b) by any other person;
(5) claims for damages because of injury to or destruction of
tangible property, including loss of use thereof; and
(6) claims for damages because of bodily injury or property damage
arising out of the ownership, maintenance, use, loading or unloading
of any motor vehicle.
The insurance required by this Section 19, except for statutory Workers
Compensation, shall
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include Landlord and its property manager as an additional insured with respect
to operations performed under this Lease. The property insurance shall provide
that it is specific and noncontributory and shall contain a replacement cost
endorsement. Tenant shall, prior to commencement of the Lease Term and at
Landlord's request from time to time thereafter, provide Landlord with current
certificates of insurance evidencing Tenant's compliance with this Section 19
and with Section 20. Tenant shall obtain the agreement of Tenant's insurers to
notify Landlord that a policy is due to expire at least thirty (30) days prior
to such expiration, and the certificates of insurance shall provide that
Tenant's insurance coverage may not be reduced or cancelled without at least
thirty (30) days prior written notice to Landlord. The insurance companies
providing coverage required of Tenant under this Section 19 and in Section 20
shall be acceptable to the Landlord, shall be licensed to do business in the
State of Florida, and shall have a "Best's Rating" of "A" or "A+ ". In the event
Tenant shall fail to procure such insurance, Landlord may at its option after
giving Tenant no less than ten (10) days prior written notice of its election to
do so, procure the same for the account of Tenant, and the cost thereof shall
be paid to Landlord as additional rent upon receipt by Tenant of bills therefor.
20. INSURANCE LIMITS. THE REQUIRED limits of liability for the
policies required of Tenant under Section 19 shall be:
(a) Workers Compensation and Employers Liability
Coverage A - Statutory
Coverage B - $1,000,000
(b) Comprehensive General Liability (occurrence form)
Per Occurrence -$500,000
General Aggregate -$2,000,000
Products Aggregate -$2,000,000
Coverage must be endorsed to include a "Per Project" or "Per
Location" Aggregate.
(c) Automobile Liability
Bodily Injury -$500,000 per person
-$1,000,000 per accident
Property Damage -$100,000 per accident
OR
Combined Single Limit of $500,000
(d) Umbrella Liability
$5,000,000.
21. INDEMNITY. LANDLORD SHALL NOT BE LIABLE TO TENANT, OR TO
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TENANT'S AGENTS, SERVANTS, EMPLOYEES, CUSTOMERS OR INVITEES, FOR ANY INJURY TO
PERSON OR DAMAGE TO PROPERTY CAUSED BY ANY ACT, OMISSION, OR NEGLECT OF TENANT,
ITS AGENTS, SERVANTS, EMPLOYEES, INVITEES, LICENSEES OR ANY OTHER PERSON
ENTERING THE PROPERTY UNDER THE INVITATION OF TENANT, OR ARISING OUT OF THE USE
OF THE PREMISES BY TENANT AND THE CONDUCT OF ITS BUSINESS OR OUT OF A DEFAULT BY
TENANT IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. TENANT HEREBY AGREES TO
INDEMNIFY, HOLD HARMLESS AND DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO
LANDLORD) LANDLORD, ITS AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES FROM ANY AND
ALL LIABILITY AND CLAIMS FOR ANY SUCH DAMAGE OR INJURY. LANDLORD HEREBY AGREES
TO INDEMNIFY, HOLD HARMLESS AND DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO
LANDLORD) LANDLORD, ITS AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES FROM ANY AND
ALL LIABILITY AND CLAIMS FOR DAMAGE OR INJURY CAUSED BY THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD, ITS AGENTS, SERVANTS OR EMPLOYEES.
22. WAIVER OF SUBROGATION RIGHTS. ANYTHING IN THIS LEASE TO THE
CONTRARY NOTWITHSTANDING, LANDLORD AND TENANT HEREBY WAIVES ANY AND ALL RIGHTS
OF RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION, AGAINST THE OTHER, THEIR AGENTS
(INCLUDING PARTNERS, BOTH GENERAL AND LIMITED), OFFICERS, DIRECTORS,
SHAREHOLDERS, CUSTOMERS, INVITEES OR EMPLOYEES, FOR ANY LOSS OR DAMAGE THAT MAY
OCCUR TO THE PREMISES OR ANY IMPROVEMENTS THERETO, OR THE BUILDING Of WHICH THE
PREMISES ARE A PART OR ANY IMPROVEMENTS THEREON, OR ANY PERSONAL PROPERTY OF
SUCH PARTY THEREIN, BY REASON OF FIRE, THE ELEMENTS OR ANY OTHER CAUSE WHICH IS
OR IS REQUIRED TO BE INSURED AGAINST UNDER THE INSURANCE POLICIES REFERRED TO IN
SECTIONS 19 AND 20 HEREOF, REGARDLESS OF CAUSE OR ORIGIN, INCLUDING NEGLIGENCE
OF THE OTHER PARTY HERETO, ITS AGENTS, PARTNERS, SHAREHOLDERS, OFFICERS,
DIRECTORS, CUSTOMERS, INVITEES OR EMPLOYEES, AND COVENANTS THAT NO INSURER SHALL
HOLD ANY RIGHT OF SUBROGATION AGAINST SUCH OTHER PARTY. TENANT SHALL ADVISE
INSURERS OF THE FOREGOING WAIVER AND SUCH WAIVER SHALL BE A PART OF EACH POLICY
MAINTAINED BY TENANT.
23. CASUALTY DAMAGE. In the event (a) that the Premises should be
totally destroyed by fire, tornado or other casualty, or (b) that the Premises
or the Building should be so damaged that rebuilding or repairs cannot be
completed within one hundred eighty (180) days after the date of such casualty,
or (c) of a material uninsured loss to the Premises, Building or Property
(WHICH LACK OF INSURANCE COVERAGE IS NOT CAUSED BY ANY DEFAULT OF LANDLORD
UNDER THIS LEASE), Landlord may at its option terminate this Lease, in which
event the rent shall be abated during the unexpired portions of this Lease
effective with the date of such casualty. In the event Landlord elects or is
required to restore or rebuild the Premises or Building as provided above,
Landlord shall, within sixty (60) days after the date of such casualty, commence
to rebuild or repair the Premises and shall proceed with reasonable diligence to
restore the Premises to substantially the same condition which existed
immediately prior to the occurrence of the casualty except that Landlord shall
not be required to rebuild, repair or replace any part of the
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furniture, equipment, fixtures and other improvements which may have been placed
by Tenant or other tenants within the Building, the Property or the Premises.
Unless the casualty is a result of Tenant's fault or neglect, TENANT'S RENT
SHALL XXXXX during the time the Premises are unfit for occupancy. In the event
any mortgagee under a deed of trust, security agreement or mortgage encumbering
the Premises should require that the insurance proceeds received as a result of
a casualty be used to retire the mortgage debt, Landlord shall have no
obligation to rebuild and this Lease shall terminate upon notice to Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building, the Property or to the Premises shall be for the sole benefit of
the party carrying such insurance and under its sole control. LANDLORD SHALL,
WITHIN SIXTY (60) DAYS FOLLOWING ANY SUCH CASUALTY, GIVE TENANT AN ESTIMATE
OF THE TIME TO REPAIR SUCH DAMAGE. IF, IN LANDLORD'S REASONABLE ESTIMATION, THE
PREMISES CANNOT BE RESTORED, TO THE EXTENT OF LANDLORD'S WORK THEREIN, WITHIN
SIX (6) MONTHS FOLLOWING SUCH DAMAGE OR DESTRUCTION, TENANT SHALL HAVE THE
OPTION TO TERMINATE THIS LEASE BY DELIVERING WRITTEN NOTICE TO LANDLORD WITHIN
FIFTEEN (15) DAYS AFTER LANDLORD HAS GIVEN TENANT ITS ESTIMATE OF THE TIME TO
REPAIR SUCH DAMAGE.
24. CONDEMNATION. If the whole or substantially the whole of the
Building, or ANY PORTION OF the Premises, should be taken for any public or
quasi-public use, by right of eminent domain or otherwise or should be sold in
lieu of condemnation, then this Lease shall terminate as of the date when
physical possession of the Building or the Premises is taken by the condemning
authority. If less than the whole or substantially the whole of the Building is
taken or sold, Landlord (whether or not the Premises are affected thereby) may
terminate this Lease by giving written notice thereof to Tenant, in which event
this Lease shall terminate as of the date when physical possession of such
portion of the Building is taken by the condemning authority. If this Lease is
not so terminated upon any such taking or sale, the Base Rental payable
hereunder shall be diminished by an equitable amount, and Landlord shall, to the
extent Landlord deems feasible, restore the Building and the Premises to
substantially their former condition, but such work shall not exceed the scope
of the work done by Landlord in originally constructing the Building and
installing shell improvements in the Premises, nor shall Landlord in any event
be required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. Except for any amounts specifically
awarded to Tenant for its separate property and fixtures, all amounts awarded
upon a taking of any part or all of the Property, Building or the Premises
belong to Landlord, and Tenant shall not be entitled to and expressly waives all
claims to any such compensation. NOTWITHSTANDING THE FOREGOING, TENANT SHALL BE
ENTITLED TO PURSUE REIMBURSEMENT CLAIMS OR COMPENSATION CLAIMS TO WHICH TENANT
IS ENTITLED UNDER APPLICABLE LAW, SO LONG AS SUCH CLAIMS DO NOT DECREASE THE
AMOUNT OF LANDLORD'S AWARD.
25. DAMAGES FROM CERTAIN CAUSES. Landlord shall not be liable to Tenant
for any loss or damage to any property or person occasioned by theft, fire, act
of God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body or authority or by any other cause
except for Landlord's negligence or willful misconduct. Landlord shall not be
liable for any damage or inconvenience which may arise through repair or
alteration of any part of the Building or the Premises.
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26. Events of Default/Remedies.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or
other sum of money due hereunder and such failure shall continue for a period
of TEN (10) DAYS AFTER TENANT'S RECEIPT OF NOTICE THEREOF FROM LANDLORD;
PROVIDED, HOWEVER, THAT LANDLORD SHALL NOT BE REQUIRED TO PROVIDE TENANT WITH
THE NOTICE AND TEN-DAY PERIOD SET FORTH IN THIS SUBPARAGRAPH MORE THAN THREE
(3) TIMES DURING ANY LEASE YEAR, AND THE FOURTH AND EACH SUBSEQUENT FAILURE TO
TIMELY PAY SUCH SUMS DURING ANY LEASE YEAR SHALL IMMEDIATELY CONSTITUTE AN
EVENT OF DEFAULT HEREUNDER; (ii) Tenant shall fail to comply with any provision
of this Lease or any other agreement between Landlord and Tenant not requiring
the payment of money, all of which terms, provisions and covenants shall be
deemed material, and such failure shall continue for a period of thirty (30)
days (or immediately if the failure involves a hazardous condition) after
written notice of such default is delivered to Tenant; PROVIDED, THAT IN THE
EVENT ANY SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE OF CURE WITHIN SUCH THIRTY
(30)-DAY PERIOD, TENANT SHALL HAVE A REASONABLE TIME TO CURE SUCH FAILURE (NOT
TO EXCEED NINETY (90) DAYS TOTAL), PROVIDED TENANT COMMENCES CURE AS SOON AS IS
REASONABLY POSSIBLE, AND PROSECUTES SUCH CURE DILIGENTLY TO COMPLETION; (iii)
the leasehold hereunder demised shall be taken on execution, levied upon or
attached or other process of law in any action against Tenant; (iv) Tenant
notifies Landlord, at any time prior to the Commencement Date, that Tenant does
not intend to take occupancy of the Premises upon the Commencement Date or
Tenant shall fail to promptly move into and take possession of the Premises when
the Premises are ready for occupancy or shall cease to do business in, vacate or
abandon any portion of the Premises; (v) Tenant shall become insolvent or unable
to pay its debts as they become due, or Tenant notifies Landlord that it
anticipates either condition, (vi) Tenant takes any action to, or notifies
Landlord that Tenant intends to, file a petition under any section or chapter of
the United States Bankruptcy Code, as amended from time to time, or under any
similar law or statute of the United States or any State thereof; or a petition
shall be filed against Tenant under any such statute or Tenant or any creditor
of Tenant notifies Landlord that it knows such a petition will be filed or has
been filed or Tenant notifies Landlord that it expects such a petition to be
filed; or (vii) a receiver or trustee shall be appointed for Tenant's leasehold
interest in the Premises or for all or a substantial part of the assets of
Tenant.
(b) Remedies on Default. If any of the events of default
hereinabove specified shall occur, Landlord, at any time thereafter, shall have
and may exercise any of the following rights and remedies:
(i) Landlord may, pursuant to written notice
thereof to Tenant, terminate this Lease and, peaceably or pursuant to
appropriate legal proceedings, re-enter, retake and resume possession of the
Premises for Landlord's own account and, for Tenant's breach of and default
under this Lease, recover immediately from Tenant any and all Rent and other
sums and damages due or in existence at the time of such termination,
including, without limitation: (a) all Rent and other sums, charges, payments,
costs and expenses agreed and/or required to be paid by Tenant to Landlord
hereunder, (b) all costs and expenses of Landlord in connection with the
recovery of possession of the Premises, including reasonable attorneys' fees
and court costs, and (c) all costs and expenses of Landlord in connection with
any reletting or attempted reletting of the Premises or any part or parts
thereof, including, without limitation, brokerage fees, attorneys' fees and the
cost of any alterations or repairs which may be reasonably required to so relet
the
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Premises, or any part or parts thereof.
(ii) Landlord may, pursuant to any prior notice
required by law, and without terminating this Lease, peaceably or pursuant to
appropriate legal proceedings, re-enter, retake and resume possession of the
Premises for the account of Tenant, make such alterations of and repairs to the
Premises as may be reasonably necessary in order to relet the same or any part
or parts thereof and relet or attempt to relet the Premises or any part or parts
thereof for such term or terms (which may be for a term or terms extending
beyond the term of this Lease), at such rents and upon such other terms and
provisions as Landlord, in its sole, but reasonable, discretion, may deem
advisable. If Landlord relets or attempts to relet the Premises, Landlord shall
be the sole judge as to the terms and provisions of any new lease or sublease
and of whether or not a particular proposed new tenant or sublease is
acceptable to Landlord. Upon any such reletting, all rents received by the
Landlord from such reletting shall be applied: (a) first, to the payment of all
costs and expenses of recovering possession of the Premises, (b) second, to the
payment of any costs and expenses of such reletting, including brokerage fees,
attorneys' fees and the cost of any alterations and repairs reasonably required
for such reletting; (c) third, to the payment of any indebtedness, other than
Rent, due hereunder from Tenant to the Landlord, (d) fourth, to the payment of
all Rent and other sums due and unpaid hereunder, and (e) fifth, the residue,
if any, shall be held by the Landlord and applied in payment of future Rents
as the same may become due and payable hereunder. If the rents received from
such reletting during any period shall be less than that required to be paid
during that period by the Tenant hereunder, Tenant shall promptly pay any such
deficiency to the Landlord and failing the prompt payment thereof by Tenant to
Landlord, Landlord shall immediately be entitled to institute legal proceedings
for the recovery and collection of the same. Such deficiency shall be
calculated and paid at the time each payment of rent shall otherwise become due
under this Lease, or, at the option of Landlord, at the end of the term of this
Lease. Landlord shall, in addition, be immediately entitled to xxx for and
otherwise recover from Tenant any other damages occasioned by or resulting from
any abandonment of the Premises or other breach of or default under this Lease
other than a default in the payment of rent. No such re-entry, retaking or
resumption of possession of the Premises by the Landlord for the account of
Tenant shall be construed as an election on the part of Landlord to terminate
this Lease unless a written notice of such intention shall be given to the
Tenant or unless the termination of this Lease be decreed by a court of
competent jurisdiction. Notwithstanding any such re-entry and reletting or
attempted reletting of the Premises or any part or parts thereof for the
account of Tenant without termination, Landlord may at any time thereafter,
upon written notice to Tenant, elect to terminate this Lease or pursue any
other remedy available to Landlord for Tenant's previous breach of or default
under this Lease.
(iii) Landlord may, without re-entering, retaking
or resuming possession of the Premises, xxx for all Rent and all other sums,
charges, payments, costs and expenses due from Tenant to Landlord hereunder
either: (i) as they become due under this Lease, taking into account that
Tenant's right and option to pay the Rent hereunder on a monthly basis in any
particular Lease year is conditioned upon the absence of a default on Tenant's
part in the performance of its obligations under this Lease, or (ii) at
Landlord's option, accelerate the maturity and due date of the whole or any
part of the Rent for the entire then-remaining unexpired balance of the term of
this Lease, as well as all other sums, charges, payments, costs and expenses
required to be paid by Tenant to Landlord hereunder, including, without
limitation, damages for breach or default of Tenant's obligations hereunder in
existence at the time of such
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acceleration, such that all sums due and payable under this Lease shall,
following such acceleration, be treated as being and, in fact, be due and
payable in advance as of the date of such acceleration. Landlord may then
proceed to recover and collect all, such unpaid Rent and other sums so sued for
from Tenant by distress, levy, execution or otherwise. Regardless of which of
the foregoing alternative remedies is chosen by Landlord under this
subparagraph (iii), Landlord shall not be required to relet the Premises nor
exercise any other right granted to Landlord pursuant to this Lease, nor shall
Landlord be under any obligation to minimize or mitigate Landlord's damages or
Tenant's loss as a result of Tenant's breach of or default under this Lease.
In addition to the remedies hereinabove specified and enumerated,
Landlord shall have and may exercise the right to invoke any other remedies
allowed at law or in equity as if the remedies of re-entry, unlawful detainer
proceedings and other remedies were not herein provided. Accordingly, the
mention in this Lease of any particular remedy shall not preclude Landlord from
having or exercising any other remedy at law or in equity. Nothing herein
contained shall be construed as precluding the Landlord from having or
exercising such lawful remedies as may be and become necessary in order to
preserve the Landlord's right or the interest of the Landlord in the Premises
and in this Lease, even before the expiration of any notice periods provided
for in this Lease, if under the particular circumstances then existing the
allowance of such notice periods will prejudice or will endanger the rights and
estate of the Landlord in this Lease and in the Premises.
(c) This Section 26 shall be enforceable to the maximum
extent not prohibited by applicable law, and the unenforceability of any portion
hereof shall not thereby render unenforceable any other portion,
(d) Landlord shall be in default hereunder in the event
Landlord has not commenced and pursued with reasonable diligence the cure of
any failure of Landlord to meet its obligations hereunder within thirty (30)
days of the receipt by Landlord of written notice from Tenant of the alleged
failure to perform. In SUCH EVENT, TENANT SHALL BE ENTITLED TO SEEK WHATEVER
REMEDIES ARE PERMITTED AT LAW OR IN EQUITY. In addition, Tenant hereby
covenants that, prior to the exercise of any such remedies, it will give the
mortgagee(s) holding mortgages on the Building notice and a reasonable time to
cure any default by Landlord.
27. PEACEFUL ENJOYMENT. Tenant shall and my peacefully have, hold,
and enjoy the Premises, subject to the other terms hereof including, without
limitation, Section 28 hereof, provided that Tenant pays the Rent and other
sums herein recited to be paid by Tenant and performs all of Tenant's covenants
and agreements herein contained. This covenant and any and all other covenants
of Landlord shall be binding upon Landlord and its successors only with respect
to breaches occurring during its or their respective periods of ownership of
the Landlord's interest hereunder.
28. HOLDING OVER. In the event of holding over by Tenant after
expiration or other termination of this Lease or in the event Tenant continues
to occupy the Premises after the
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termination of Tenant's right of possession pursuant Section 26(b) hereof,
unless otherwise agreed to in writing, such hold over shall constitute and be
construed as a tenancy at sufferance, and Tenant shall, throughout the entire
holdover period, pay rent equal to 150% OF the Rent which would have been
applicable had the Lease Term continued through the period of such holding over
by Tenant. No holding over by Tenant after the expiration of the term of this
Lease shall be construed to extend the term of this Lease. Additionally, Tenant
shall be liable to Landlord for all of Landlord's consequential damages
resulting directly or indirectly from Tenant's failure to surrender the
Premises to Landlord in accordance with this Lease.
29. SUBORDINATION TO MORTGAGE. Tenant accepts this Lease subject
and subordinate to any mortgage, deed of trust or other lien presently existing
or hereafter arising encumbering the Premises, the Building and/or the
Property, and to any renewals, modifications, consolidations, refinancing and
extensions thereof, but Tenant agrees that any such mortgagee shall have the
right at any time to subordinate such mortgage, deed of trust or other lien to
this Lease on such terms and subject to such conditions as such mortgagee may
deem appropriate in its discretion. Landlord is hereby irrevocably vested with
full power and authority to subordinate this Lease to any mortgage, deed of
trust or other lien now existing or hereafter placed upon the Premises, or the
Building and/or the Property and Tenant agrees upon demand to execute such
further instruments subordinating this Lease or attorning to the holder of any
such liens as Landlord in any request. The terms of this Lease are subject to
approval by Landlord's mortgagee(s) and such approval is a condition precedent
to Landlord's obligations hereunder. In the event that Tenant should fail to
execute any subordination or other agreement required by this paragraph,
promptly as requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest. Tenant agrees
that it will from time to time upon request by Landlord execute and deliver to
such persons as Landlord shall request a statement certifying that this Lease
is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so modified),
stating the dates to which rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
NOTWITHSTANDING THE FOREGOING, TENANT'S AGREEMENT TO SUBORDINATE THIS LEASE TO
ANY MORTGAGEE SHALL BE CONTINGENT UPON TENANT RECEIVING FROM SUCH MORTGAGEE A
NON-DISTURBANCE AGREEMENT IN A FORM REASONABLY ACCEPTABLE TO TENANT AND SUCH
MORTGAGEE.
30. LANDLORD'S LIEN.
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31. PARKING. Tenant shall have a non-exclusive license to use
five and one-half (5.5) parking spaces associated with the Building per One
Thousand (1,000) square feet of Rentable Area in the Premises. Tenant's right
to such parking spaces is subject to Landlord's rights to grant other tenants
of the Building the rights to parking spaces associated with the Building.
Landlord reserves the right from time to time to assign, or re-assign, the
location of such parking spaces in any manner that Landlord in Landlord's sole
discretion deems beneficial to the operation of the Building. Tenant agrees
that it will employ its best efforts to prevent the use by Tenant's employees
and visitors of parking spaces allocated exclusively to other tenants. Landlord
reserves the right to promulgate rules and regulations for the use of all
parking areas at any time during the term of this Lease. All motor vehicles
(including all contents thereof) shall be parked in such spaces at the sole
risk of Tenant, its employees, agents, invitees and licensees, it being
expressly agreed and understood that Landlord has no duty to insure any of said
motor vehicles (including the contents thereof), and that Landlord is not
responsible for the protection and security of such vehicles, or the contents
thereof. Landlord shall have no liability whatsoever for any property damage
and/or personal injury which might occur as a result of or in connection with
the parking of said motor vehicles in any of the parking spaces. Nothing herein
shall be deemed to create a bailment between the parties hereto, it being
expressly agreed and understood that the only relationship created between
Landlord and Tenant hereby is that of licensor and licensee, respectively.
32. ATTORNEYS' FEES. If either party shall bring an action to
recover any sum due hereunder, or for any breach hereunder, and shall obtain a
judgment or decree in its favor, the court shall award to such prevailing party
its reasonable costs and reasonable attorneys' fees, specifically including
reasonable attorneys' fees incurred in connection with any appeals (whether or
not taxable as such by law). Landlord shall also be entitled to recover its
reasonable attorneys' fees and costs incurred in any bankruptcy action filed by
or against Tenant, including, without limitation, those incurred in seeking
relief from the automatic stay, in dealing with the assumption or rejection of
this Lease, in any adversary proceeding, and in the preparation and filing of
any proof of claim.
33. NO IMPLIED WAIVER. The failure of Landlord to insist at any
time upon the strict performance of any covenant or agreement herein or to
exercise any option, right, power or remedy contained in this Lease shall not
be construed as a waiver or a relinquishment thereof for the future. No payment
by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of rent due under this Lease shall be deemed to be other than on
account of the earliest rent due hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided in this Lease.
34. PERSONAL LIABILITY. The liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease shall be limited to the
interest of Landlord in the Building and Property, and Tenant agrees to look
solely to Landlord's interest in the Building and the Property for the recovery
of any judgment from the Landlord, it being intended that Landlord shall not be
personally liable for any judgment or deficiency.
35. SECURITY DEPOSIT. The Security Deposit shall be held by
Landlord without
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liability for interest and as security for the performance by Tenant of
Tenant's covenants and obligations under this Lease, it being expressly
understood that the Security Deposit shall not be considered an advance payment
of rental or a measure of Tenant's liability for damages in case of default by
Tenant. Landlord may commingle the Security Deposit with Landlord's other
funds. Landlord may, from time to time, without prejudice to any other remedy,
use the Security Deposit to the extent necessary to make good any arrearages of
rent or to satisfy any other covenant or obligation of Tenant hereunder.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at termination of
this Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant. If Landlord transfers its
interest in the Premises during the term of this Lease, Landlord may assign the
Security Deposit to the transferee and thereafter shall have no further
liability for the return of such Security Deposit.
36. NOTICE. Any notice in this Lease provided for must, unless
otherwise expressly provided herein, be in writing, and may, unless otherwise
in this Lease expressly provided, be given or be served by depositing the same
in the United States mail, postage prepaid and certified and addressed to the
party to be notified, with return receipt requested, or by delivering the same
in person to an officer of such party, or by any other nationally recognized
overnight courier, addressed to the party to be notified at the address stated
in this Lease or such other address notice of which has been given to the other
party. Notice personally delivered shall be effective when delivered or when
the recipient refuses delivery; notice deposited in the mail in the manner
hereinabove described shall be effective from and after the expiration of three
(3) days after it is so deposited; and notice deposited with an overnight
carrier shall be effective one (1) day after it is so deposited.
37. SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as 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 enforceable to the fullest
extent permitted by law.
38. RECORDATION. Tenant agrees not to record this Lease or any
memorandum hereof. The parties hereto will execute and record a memorandum of
this Lease, if requested by Landlord.
39. GOVERNING LAW. This Lease and the rights and obligations of
the parties hereto shall be interpreted, construed, and enforced in accordance
with the laws of the State of Florida.
40. FORCE MAJEURE. Whenever a period of time is herein prescribed
for the taking of any action by EITHER PARTY, SUCH PARTY shall not be liable or
responsible for, and there shall be excluded from the computation of such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations or restrictions, or any
other cause whatsoever beyond the reasonable control of SUCH PARTY.
NOTWITHSTANDING THE FOREGOING, THIS SECTION 40 SHALL NOT APPLY TO THE PAYMENT
OF RENT OR OTHER CHARGES BY TENANT.
41. TIME OF PERFORMANCE. Except as expressly otherwise herein
provided, with
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respect to all required acts of Tenant, time is of the essence of this Lease.
42. TRANSFERS BY LANDLORD. Landlord shall have the right to
transfer and assign, in whole or in part, all of its rights and obligations
hereunder and in the Building and Property referred to herein, and in such
event and upon such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such obligations.
43. BROKER. Each of the parties represents and warrants to the
other that except as expressly set forth in this Section 43, such party has not
dealt with any broker, agent or other person in connection with this Lease and
that no other broker, agent or other person brought about this Lease through
the acts of or employment of either party, and each party hereby agrees to
indemnify, defend and hold the other party harmless from all liability arising
from any claim for brokerage commissions of any kind (including, without
limitation, attorneys' fees incurred in connection therewith) in connection
with this Lease, which claim arises (directly or indirectly) out of an
agreement, contract, course of dealings or relationship between Tenant and the
claiming party. The terms and provisions of this Section 43 shall survive the
expiration or sooner termination of this Lease.
44. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a
copy of this Lease to Tenant for Tenant's review only, and the delivery hereof
does not constitute an offer to Tenant or option. This Lease shall not be
effective until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord, and this Lease has been approved by Landlord's mortgagee.
45. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the
following rights, each of which Landlord may exercise without liability to
Tenant, and the exercise of any such rights shall not be deemed to constitute
an eviction or disturbance of Tenant's use or possession of the Premises and
shall not give rise to any claim for set-off or abatement of rent or any other
claim: (a) to change the name or street address of the Building or the suite
number of the Premises, PROVIDED THAT LANDLORD SHALL PAY THE REASONABLE COSTS
FOR TENANT TO CHANGE ITS STATIONERY AND BUSINESS CARDS; (b) to install, affix
and maintain any and all signs on the exterior OF THE BUILDING OR IN THE COMMON
AREAS OF THE interior of the Building; (c) SUBJECT TO ANY RESTRICTIONS SET
FORTH IN THIS LEASE, to make repairs, decorations, alterations, additions or
improvements, whether structural or otherwise, in and about the Building, and
for such purposes to enter upon the Premises, temporarily close doors,
corridors and other areas in the Building and interrupt or temporarily suspend
services or use of Common Areas, and Tenant agrees to pay Landlord for overtime
and similar expenses incurred if such work is done other than during ordinary
business hours at Tenant's request; (d) to retain at all times, and to use in
appropriate instances, keys to all doors within and into the Premises, SUBJECT
TO ANY LIMITATIONS ON LANDLORD'S ENTRY CONTAINED IN THIS LEASE; (e) to grant to
any person or to reserve unto itself the exclusive right to conduct any
business or render any service in the Building (OTHER THAN IN THE PREMISES);
(f) to show or inspect the Premises at reasonable times and, if vacated or
abandoned, to prepare the Premises for reoccupancy, SUBJECT TO ANY LIMITATIONS
ON LANDLORD'S ENTRY CONTAINED IN THIS LEASE; (g) to install, use and maintain
in and through the Premises pipes, conduits, wires and ducts serving the
Building, provided that such installation, use and maintenance does not
unreasonably interfere with Tenant's use of the Premises, PROVIDED THAT SUCH
PIPES, CONDUITS, WIRES AND DUCTS ARE SHOWN ON THE APPROVED PLANS AND
SPECIFICATIONS
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FOR THE PREMISES; (h) to take any other action which Landlord deems reasonable
in connection with the operation, maintenance, marketing or preservation of the
Building WHICH IS OTHERWISE CONSISTENT WITH THE OTHER TERMS OF THE LEASE; and
(i) to approve the weight, size and location of safes or other heavy equipment
or articles IF THEY ARE HEAVIER THAN 100 POUNDS PER SQUARE FOOT, which articles
may be moved in, about or out of the Building or Premises, at Tenant's sole
risk and responsibility.
46. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE TRIAL BY
JURY IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
LANDLORD OR TENANT AGAINST THE OTHER IN CONNECTION WITH THIS LEASE.
47. ESTOPPEL CERTIFICATE. Upon ten (10) days notice from Landlord
to Tenant, Tenant shall deliver a certificate dated as of the first day of the
calendar month in which such notice is received, executed by an appropriate
officer, partner or individual, in the form as Landlord may require, stating
(but not limited to) the following: (i) the Commencement Date of this Lease;
(ii) the space occupied by Tenant hereunder; (iii) the expiration date hereof;
(iv) a description of any renewal or expansion options, if any; (v) the amount
of Rent currently and actually paid by Tenant under this Lease; (vi) the nature
of any default or claimed default hereunder by Landlord; and (vii) that Tenant
is not in default hereunder nor has any event occurred which with the passage
time or the giving of notice would become a default by Tenant hereunder.
Landlord agrees that, within twenty (20) days after written request from
Tenant, Landlord shall execute, acknowledge and deliver to Tenant a similar
estoppel certificate.
48. ENVIRONMENTAL MATTERS.
(a) Defined Terms.
(1) "Damages" shall mean all damages, and
includes, without limitation, punitive damages, liabilities, costs, losses,
diminutions in value, fines, penalties, demands, claims, cost recovery actions,
lawsuits, administrative proceedings, orders, response action costs, compliance
costs, investigation expenses, consultant fees, attorneys' and paralegals' fees
and litigation expenses.
(2) "Environmental Law" shall mean any current
or future statute, ordinance, regulation or rule pertaining to (1) the
protection of health, safety and the indoor or outdoor environment, (2) the
conservation, management or use of natural resources and wildlife, (3) the
protection or use of surface water and groundwater, (4) the management,
manufacture, possession, presence, use, generation, transportation, treatment,
storage, disposal, release, threatened release, abatement, removal,
remediation, investigation or handling of, or exposure to, any Hazardous
Material or (5) pollution (including any release to air, land, surface water
and groundwater), and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. ss.9601) et
seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. ss.6901 et seq., the Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. ss.1251 et seq., the Clean Air Act of
1966, as amended. 42 U.S.C. ss.7401 et seq., the Toxic Substances Control Act
of 1976, 15
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U.S.C. ss.2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
App. ss.1801 et seq,, the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. ss.651 et seq., any state or local law requiring
notifications or reports upon conveyance or other events, any similar,
implementing or successor law, any amendment, rule, regulation, order or
directive issued thereunder, and all other federal, state, regional, county,
municipal, and local laws, regulations, and ordinances insofar as they regulate
Hazardous Materials.
(3) "Governmental Approval" shall mean any
permit, license, variance, certificate, consent, letter, clearance, closure,
exemption, decision, action or approval of any international, foreign, federal,
state, regional, county or local person or body having governmental or
quasi-governmental authority or a subdivision thereof.
(4) "Hazardous Material" shall mean any
substance, chemical, compound, product, solid, gas, liquid, waste, byproduct,
pollutant, contaminant or material which is hazardous or toxic, and includes,
without limitation, asbestos, polychlorinated biphenyls, petroleum (including
crude oil or any fraction thereof) and any such material classified or
regulated as "hazardous" or "toxic" pursuant to any Environmental Law.
(5) "Hazardous Material Activity" shall mean
any activity, event or occurrence involving a Hazardous Material, including,
without limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened release,
abatement, removal, remediation, handling of or corrective or response action
to any Hazardous Material.
(b) REPRESENTATIONS AND WARRANTIES OF TENANT AND
LANDLORD. Tenant represents and warrants as of the date of this Lease, as to
the Premises:
(1) Tenant is in compliance with any applicable
Environmental Law; and
(2) Tenant intends to conduct no Hazardous
Material Activity on the Premises, except in the ordinary course of its
business. NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY, TENANT MAY
STORE, USE AND DISPOSE OF HAZARDOUS MATERIAL INCIDENTAL TO ITS MANUFACTURING
ACTIVITIES, PROVIDED, HOWEVER, THAT ANY SUCH STORAGE, USE OR DISPOSAL IS
STRICTLY IN ACCORDANCE WITH ALL APPLICABLE ENVIRONMENTAL LAWS. THE NATURE OF
SUCH HAZARDOUS MATERIAL USED IN TENANT'S BUSINESS IS AS FOLLOWS: MATERIAL FOUND
IN SMALL ELECTRONIC COMPONENTS, TOGETHER WITH SMALL AMOUNTS OF CLEANING FLUIDS
USED IN THE ASSEMBLY, TESTING AND CLEANING OF ELECTRONIC COMPONENTS.
LANDLORD REPRESENTS AND WARRANTS AS OF THE DATE OF THIS LEASE THAT IT
HAS NO ACTUAL KNOWLEDGE, WITHOUT INDEPENDENT INVESTIGATION, OF ANY VIOLATIONS
OF ANY APPLICABLE ENVIRONMENTAL LAW WITH RESPECT TO THE PROPERTY OR THE
BUILDING.
(c) Covenants of Tenant. Tenant hereby covenants that,
during the term of this Lease as to the Premises:
(1) Tenant shall comply at its sole cost and
expense with all applicable Environmental Laws and shall be responsible for
making any notification or report required to be
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made by any applicable Environmental Law;
(2) Tenant shall not conduct any Hazardous
Material Activity on the Premises, except in the ordinary course of its
business, including, but not limited to, (i) installing any underground storage
tanks; (ii) taking any action that would subject the Premises to the permit
requirements under Resource, Conservation and Recovery Act for storage,
treatment or disposal of Hazardous Materials, (iii) disposing of Hazardous
Materials in dumpsters provided by Landlord for tenant use, (iv) discharging
Hazardous Materials into drains or sewers, or (v) causing or allowing the
release of any Hazardous Materials on, to or from the Premises, the Building or
the Property;
(3) If Tenant's use, including any Hazardous
Material Activity, (i) gives rise to liability or to a claim under any
Environmental Law, or any common law theory of tort or otherwise, (ii) causes a
threat to, or endangers human health or the environment, or (iii) creates a
nuisance or trespass, Tenant shall, to the reasonable satisfaction of Landlord
and at Tenant's sole cost and expense, promptly take all actions as are
necessary to return the Premises or any adjacent property to the condition
existing prior to the introduction of any such Hazardous Material and to comply
with all applicable Environmental Laws and eliminate or avoid any liability
claim with respect thereto. Landlord's written approval of such actions to be
taken with respect to the Premises or any adjacent property shall first be
obtained;
(4) Tenant shall provide Landlord with (i)
copies of all environmental reports and tests obtained by Tenant, and (ii)
within ten (10) days of Tenant's receipt of a written request by Landlord, any
other applicable documents and information with respect to environmental
matters;
(5) Tenant shall provide Landlord promptly with
copies of all summonses, citations, directives, information inquiries or
requests, notices of potential responsibility, notices of violation or
deficiency, orders or decrees, claims, complaints, investigations, judgments,
letters, notices of environmental liens or response actions in progress, and
other communications, written or oral, actual or threatened, from any federal,
state, or local agency or authority, or any other entity or individual,
concerning (i) any actual or alleged release of a Hazardous Material on, to or
from the Premises, (ii) the imposition of any lien on the Premises, (iii) any
actual or alleged violation of, or responsibility under, any Environmental
Laws, or (iv) any actual or alleged liability under any theory of common law
tort or toxic tort, including, without limitation, negligence, trespass,
nuisance, strict liability, or ultrahazardous activity;
(6) Tenant shall allow Landlord or its
representatives from time to time, at Landlord's expense and reasonable
discretion, upon reasonable prior written notice to Tenant to inspect the
Premises and conduct an environmental assessment (including invasive soil or
groundwater sampling), including, without limitation, to facilitate any sale or
lease of the Premises, the Building and/or the Property; and
(7) Tenant shall, upon the written request of
Landlord, timely provide a report of an environmental assessment of reasonable
scope, form and depth by a consultant reasonably approved by Landlord as to (1)
any matter to the extent such matter is attributable to events or conditions
which arise during the Lease Term and (i) for which notice is provided
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pursuant to the above requirements or (ii) which may reasonably be believed by
Landlord to form the basis for a claim under any Environmental Law or under any
common law theory of tort, and (2) the general environmental condition of the
Premises within three hundred sixty-five (365) days of the expiration of this
Lease or the earlier termination thereof or of Landlord's right to possession of
the Premises. If such a requested environmental report is not delivered within
seventy-five (75) days after receipt of Landlord's request, then Landlord may
arrange for same. The reasonable cost of any assessment pursuant to subpart (1)
of this provision or any assessment pursuant to subpart (2) of this provision
which discloses a breach of this Section 48 shall be payable by Tenant.
(d) RIGHTS OF LANDLORD. In the event that Tenant shall fail to
comply with any of its obligations under this Section 48 as and when required
hereunder and after giving Tenant prior written notice and a reasonable
opportunity to cure the same, Landlord shall have the right (but not the
obligation) to take such action as is required, in Landlord's sole discretion,
to be taken by Tenant hereunder and in such event, Tenant shall be liable and
responsible to Landlord for all costs, expenses, liabilities, claims and other
obligations paid, suffered, or incurred by Landlord in connection with such
matters, Tenant shall reimburse Landlord immediately upon demand for all such
amounts for which Tenant is liable.
(e) INDEMNIFICATION AND WAIVER. Notwithstanding anything contained
in this Lease to the contrary, Tenant shall indemnify, hold harmless, and hereby
waives any claim for contribution against, Landlord, and its beneficiaries,
officers, directors, shareholders, employees, and agents, from and against any
and all claims, response costs, losses, liabilities, damages, costs, and
expenses, including, but not limited to, the costs and expenses of
investigations, studies, health or risk assessments and consulting fees, and
including, without limitation, loss of rental income, loss due to business
interruption, and reasonable attorneys' fees and costs, arising out of or in any
way connected with any or all of the following:
(1) any Hazardous Materials which, at any time during the term
of this Lease are or were actually or allegedly generated, stored, treated,
released, disposed of, used or otherwise located on or at the Premises,
including, but not limited to, any and all (i) liabilities under any common law
theory of tort, nuisance, strict liability, ultrahazardous activity, negligence
or otherwise based upon, resulting from or in connection with any Hazardous
Material, and (ii) obligations to take response, cleanup or corrective action
pursuant to any investigation or remediation in connection with the
decontamination, removal, transportation, incineration, or disposal of any of
the foregoing; and
(2) any actual or alleged illness, disability, injury, or death
of any person in any manner arising out of or allegedly arising out of exposure
to Hazardous Materials present at the Premises and attributable to events or
conditions which arose during the term of this Lease, regardless of when any
such illness, disability, injury, or death shall have occurred or been incurred
or manifested itself; and
(3) any actual or alleged failure of Tenant or the Premises at
any time and from time to time to comply with all applicable Environmental Laws
to the extent noncompliance is attributable to events and conditions which arose
during the term of this Lease; and
(4) any failure by Tenant to comply with its obligations under
this
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Section 48.
NOTWITHSTANDING THE FOREGOING, TENANT SHALL NOT BE REQUIRED TO
INDEMNIFY LANDLORD AGAINST ANY HAZARDOUS MATERIALS WHICH EXISTED WITHIN THE
PREMISES OR ON THE PROPERTY PRIOR TO THE DATE OF THIS LEASE OR WHICH WERE PLACED
WITHIN THE PREMISES OR ON THE PROPERTY BY ANY PARTY OTHER THAN TENANT OR ITS
AGENTS, EMPLOYEES, SERVANTS, OR CONTRACTORS. In the event any claims or other
assertion of liability shall be made against Landlord for which Landlord is
entitled to indemnity hereunder, Landlord shall notify Tenant of such claim or
assertion of liability and thereupon Tenant shall, at its sole cost and expense,
assume the defense of such claim or assertion of liability, in a manner and with
counsel reasonably acceptable to Landlord, and continue such defense at all
times thereafter until completion. The obligations of Tenant under this Section
48 shall survive any termination or expiration of this Lease.
49. RADON GAS. As directed by Section 404.056, Florida Statutes: "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."
50. RELOCATION.
51. EXHIBITS. The following exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit "A" - Legal Description of Property
Exhibit "B" - Description of Premises
Exhibit "C" - Work Letter
Exhibit "D" - Rules and Regulations
Exhibit "E" - Property Restrictions
52. TERMINATION OPTION. IN THE EVENT THAT TENANT EXECUTES A LEASE WITH
LANDLORD IN WHICH TENANT COMMITS TO LEASE A MINIMUM OF 60,000 SQUARE FEET OF
RENTABLE AREA IN THE BUILDING KNOWN AS 500 GRAN PARK TO BE CONSTRUCTED AT 0000
XXXXX XXXX XXXXXX, XXXXXXX, XXXXXXX, THEN TENANT SHALL HAVE THE RIGHT TO
TERMINATE THIS LEASE. LANDLORD AND TENANT HEREBY AGREE THAT IF A LEASE IS
EXECUTED AT 500 GRAN PARK AS PROVIDED ABOVE, SUCH LEASE SHALL HAVE THE FOLLOWING
TERMS: RENT FOR THE FIRST LEASE YEAR SHALL BE $11.00 PER SQUARE FOOT OF RENTABLE
AREA PER YEAR, INCREASED AT THE RATE OF THREE PERCENT (3%) PER ANNUM THEREAFTER;
THE LEASE TERM SHALL BE SEVEN (7) YEARS; THE SPACE SHALL BE A MINIMUM OF 60,000
SQUARE FEET OF RENTABLE AREA AND A MAXIMUM OF THE ENTIRE BUILDING; THE
COMMENCEMENT DATE SHALL BE BETWEEN APRIL 1, 2000 AND OCTOBER 1, 2000; THE TENANT
IMPROVEMENT ALLOWANCE SHALL BE $30.00 PER SQUARE FOOT OF RENTABLE AREA IN SUCH
SPACE;
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TWO-THIRDS OF THE TENANT IMPROVEMENT ALLOWANCE SHALL BE SECURED BY A LETTER OF
CREDIT OR OTHER SECURITY SATISFACTORY TO LANDLORD, WITH SUCH SECURITY TO BE
REDUCED 25% PER YEAR OVER A FOUR YEAR PERIOD; AND TENANT SHALL HAVE A RIGHT OF
FIRST OFFER TO LEASE THE REMAINDER OF THE SPACE AT 500 GRAN PARK ON THE SAME
TERMS AND CONDITIONS AS THE INITIAL SPACE IS LEASED TO TENANT, PROVIDED THAT THE
TERM OF SUCH LEASE SHALL BE EXTENDED SO THAT IT SHALL EXPIRE AT LEAST SEVEN (7)
YEARS FOLLOWING THE DATE ON WHICH THE FINAL SPACE IN SUCH BUILDING IS LEASED BY
TENANT; AND UPON SUCH OTHER TERMS AND CONDITIONS AS LANDLORD AND TENANT MAY
AGREE. WITH RESPECT TO THE RIGHT OF FIRST OFFER OF SPACE AT 500 GRAN PARK, ANY
SPACE ADDED PURSUANT TO SUCH RIGHT FROM TIME TO TIME SHALL BE AT THE RENTAL RATE
THEN BEING PAID FOR THE REMAINDER OF THE SPACE PURSUANT TO SUCH LEASE. WHEN THE
TERM OF SUCH LEASE IS EXTENDED TO EXPIRE SEVEN (7) YEARS FOLLOWING THE DATE ON
WHICH THE FINAL SPACE IN SUCH BUILDING IS LEASED BY TENANT, THE RENTAL FOR ALL
SPACE AT 500 GRAN PARK SHALL CONTINUE TO INCREASE EACH YEAR DURING EACH EXTENDED
TERM AT THE SAME RATE THAT RENTAL HAS INCREASED FROM YEAR TO YEAR PRIOR TO SUCH
EXTENSION. IF SUCH LEASE IS ENTERED INTO FOR 500 GRAN PARK, THEN THE TERM OF
TENANT'S EXISTING LEASE WITH LANDLORD AT 000 XXXX XXXX (0000 XXXXX XXXX XXXXXX)
SHALL BE EXTENDED SO THAT SUCH LEASE EXPIRES ON THE SAME DATE AS THE LEASE AT
500 GRAN PARK. RENTAL FOR THE LEASE AT 100 GRAN PARK SHALL CONTINUE TO INCREASE
EACH YEAR DURING SUCH EXTENDED TERM AT THE SAME RATE THAT RENTAL HAS INCREASED
PRIOR TO SUCH EXTENSION PURSUANT TO THE TERMS OF THE LEASE AT 100 GRAN PARK.
THIS TERMINATION OPTION SHALL BE EFFECTIVE ONLY IF TENANT MOVES INTO THE 500
GRAN PARK BUILDING AND BEGINS PAYING RENT NO LATER THAN FIFTEEN (15) MONTHS
AFTER THE COMMENCEMENT DATE OF THIS LEASE. SUCH TERMINATION OPTION MUST BE
EXERCISED BY DELIVERY OF WRITTEN NOTICE OF TERMINATION FROM TENANT TO LANDLORD
ON OR BEFORE APRIL 1, 2000, AND TENANT AND LANDLORD MUST EXECUTE THE LEASE AT
500 GRAN PARK WITHIN THIRTY (30) DAYS THEREAFTER. OTHERWISE THIS TERMINATION
OPTION SHALL BE NULL AND VOID. IF TENANT AND LANDLORD EXECUTE SUCH LEASE FOR A
MINIMUM OF 60,000 SQUARE FEET OF RENTABLE AREA IN THE 500 GRAN PARK BUILDING AS
PROVIDED ABOVE, THEN TENANT SHALL RECEIVE A RENT CREDIT AGAINST THE FIRST RENT
OTHERWISE PAYABLE BY TENANT AT 500 GRAN PARK IN AN AMOUNT EQUAL TO THE BASE
RENTAL ACTUALLY PAID BY TENANT DURING THE FIRST NINE (9) MONTHS OF THE LEASE
TERM PURSUANT TO THIS LEASE.
53. ROOF EQUIPMENT. TENANT SHALL HAVE THE RIGHT TO INSTALL A
TRANSMITTER BOX (OR BOXES) ON THE ROOF OF THE BUILDING FOR THE PURPOSE OF
FACILITATING TENANT'S BUSINESS IN THE PREMISES. THE SIZE, WEIGHT, LOCATION AND
METHOD OF INSTALLATION AND REMOVAL OF SUCH TRANSMITTER BOXES SHALL BE SUBJECT TO
LANDLORD'S PRIOR WRITTEN APPROVAL, WHICH SHALL NOT BE UNREASONABLY WITHHELD.
TENANT SHALL REPAIR ANY DAMAGE TO THE BUILDING WHEN REMOVING SUCH TRANSMITTER
BOXES, AND TENANT SHALL NOT DRILL ANY HOLES IN THE ROOF OF THE BUILDING UNLESS
SUCH WORK IS PERFORMED BY OR SUPERVISED BY LANDLORD'S ROOF CONTRACTOR IN ORDER
TO AVOID THE INVALIDATION OF LANDLORD'S ROOF WARRANTY.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
LANDLORD:
_______________________________ GRAN CENTRAL CORPORATION,
Witness a Florida corporation
By: The St. Xxx Company,
a Florida corporation, its agent
_______________________________
Witness By:____________________________________
Title:_________________________________
Date:__________________________________
Address:
c/o The St. Xxx Company
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
With a copy to:
Gran Central Corporation
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Property Manager
TENANT:
/s/ [ILLEGIBLE] TRITON NETWORK SYSTEMS, INC.
------------------------------- a Delaware corporation
Witness
/s/ [ILLEGIBLE] By: /s/ Xxx Xxxxx
------------------------------- ---------------------------------------
Witness
Title: CFO
---------------------------------------
Date: 5/5/99
---------------------------------------
Address:
0000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
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EXHIBIT "A"
DESCRIPTION OF PROPERTY ON WHICH THE PROJECT IS SITUATED
Block A, SOUTH PARK UNIT THREE, as recorded in Plat Book 17, Page 28, Public
Records of Orange County, Florida. LESS: BEGIN at the most Easterly corner of
Block A, SOUTH PARK UNIT THREE, as recorded in Plat Book 17, Page 28, Public
Records of Orange County, Florida; thence run North 30 degrees 59 minutes 15
seconds West 2065.24 feet along the Easterly boundary of said Block A to the
most Northerly corner of said Block A; thence run South 59 degrees 00 minutes 44
seconds West 405.13 feet along the Northerly boundary of said Block A to a point
on the Easterly right-of-way line of South Park Circle as shown on the plat of
SOUTH PARK UNIT ONE, as recorded in Plat Book 14, Page 84, Public Records of
Orange County, Florida, said Easterly right-of-way line being a nontangent curve
concave Westerly and having a radius of 699.16 feet; thence from a tangent
bearing of South 30 degrees 22 minutes 19 seconds East, run Southerly 100.43
feet along the arc of said curve and said Easterly right-of-way line through a
central angle of 08 degrees 13 minutes 48 seconds to a point on the Southerly
boundary of that certain 100.00 foot wide Drainage and Utilities Easement as
shown on the aforesaid plat of SOUTH PARK UNIT THREE; thence run North 59
degrees 00 minutes 44 seconds East 313.41 feet along said Southerly boundary;
thence run South 30 degrees 59 minutes 15 seconds East 1965.25 feet along the
Westerly boundary of said 100.00 foot wide Drainage and Utilities Easement to a
point on the Southerly boundary of the aforesaid Block A; thence run North 59
degrees 00 minutes 25 seconds East 100.00 feet to the Point of Beginning.
CONTAINING: 78.601 Acres, more or less.
SUBJECT TO: Easements.
36
EXHIBIT "B"
FLOOR PLAN
DUMPSTER LOCATION
600 Gran Park
First Floor Plan
37
EXHIBIT "C"
WORK LETTER
GENERAL
1. (a) Tenant shall select the Space Plan and Building Standard
Allowances for Completion of the Premises for occupancy by
Tenant, subject to Landlord's approval.
(b) Working Drawings and Specifications for Completion of the
Premises as determined by Tenant and approved by Landlord shall
be prepared by Landlord and approved by Tenant in accordance
with Clause 4 hereof before work is commenced.
(c) All work involved in the Completion of the Premises shall be
carried out by Landlord's contractor in accordance with the
Working Drawings and Specifications and under the supervision of
Landlord.
(d) Tenant hereby appoints XXXX XXXXXXXXX AND XXXXXX XXXXX to act
for Tenant in all matters covered by this Exhibit "C".
(e) In this Exhibit "C":
(i) "Completion of the Premises" means the supplying,
installation and finishing of partitions, doors and
hardware, ceilings, HVAC, plumbing, lights and switches,
electrical outlets, data outlets, telephone outlets,
carpets, window coverings, all finishes, counters, shelves
or other built-ins, fixtures and any other furniture,
fixtures or facilities attached to and forming part of the
Premises.
(ii) "Building Standard" means with respect to any item, the
specifications and current allowances as established from
time to time by Landlord as standard for the Building.
(iii) "Landlord's Architect" means that Architect or designer
appointed (in-house and/or outside hire) from time to time
by Landlord to provide design services, including Space
Planning, Working Drawings and Specifications.
(iv) "Landlord's Contractor" means the Contractor appointed
from time to time by Landlord to carry out work in
Completion of the Premises and any alterations, repairs
and maintenance in the Building.
(v) "Space Plan" means the graphic presentation of the
Premises indicating
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partitions, doors, electrical and telephone/data outlets,
and furniture arrangements.
(vi) "Working Drawings and Specifications" means the Plans and
Specifications for Building Standard and nonstandard
finishes for Completion of the Premises including
architectural, mechanical and electrical working drawings.
(f) Tenant must comply with Building Standard specifications for the
base building to maintain uniform quality level of materials throughout the
Building.
SHELL IMPROVEMENTS
2. Except for base building improvements that include only the Sprinkler
System with turned-up heads, Tenant shall, at its expense, make the
following improvements to the Premises:
(a) SPRINKLER SYSTEM. Tenant shall finish the Sprinkler System per
code with semi recessed sprinkler heads with metal covers - color
to match ceiling system.
(b) HEATING, VENTILATION AND AIR CONDITIONING. Tenant shall install
the entire system, including all mechanical equipment, main
distribution ducts, perimeter supply slot diffusers and
associated fixtures to provide cooling, dehumidification,
ventilation and heating to the Premises in accordance with the
approved Working Drawings and Specifications.
(c) ELECTRICAL. Electricity is available to the exterior walls of the
Building. Tenant shall provide the electrical distribution system
and electrical panels to the Premises in accordance with the
approved Working Drawings and Specifications.
OTHER IMPROVEMENTS
3. In addition to the Shell Improvements set forth in Clause 2 above,
Tenant shall, at its expense, make all other improvements to the
Premises which are set forth in the approved Working Drawings and
Specifications. Any architectural, space planning or interior design
services supplied by Landlord shall be paid for by Tenant, and Tenant
shall, also pay Landlord's supervisory fee as set forth in Clause 4
below.
PREMISES PLANS AND SPECIFICATIONS
4. (a) As soon as practicable Tenant shall meet with Landlord to
set forth Tenant's requirements for the completion of a Space
Plan.
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(b) As soon as practicable (however, not longer than five (5) working
days after receipt of Tenant requirements) after the meeting
referred to in Clause 4.(a), Landlord shall submit to Tenant the
Space Plan for Tenant's approval.
(c) Within ten (10) working days after receipt of the Space Plan
referred to in Clause 4.(b), Tenant shall meet with Landlord to
approve the Space Plan, with or without revision, and include:
(i) a furniture layout to insure the Space Plan is functional,
(ii) finish schedules for walls and carpet, and
(iii) locations for telephone/data and electrical outlets and
switches.
(d) As soon as practicable (within ten (10) working days) after the
approval referred to in Clause 4.(c), Landlord shall submit the
approved Space Plan together with a written preliminary estimate
of the cost to Tenant therefor, if any, including Landlord's
supervisory fee of five percent (5%) of the cost of all work to
be performed.
(e) Within five (5) working days after receipt of the approved Space
Plan and written estimate of Tenant's cost referred to in Clause
4.(d), Tenant shall approve same in writing. Tenant's failure to
provide written approval shall be deemed a disapproval thereof
and Landlord shall not proceed with final Working Drawings and
Specifications.
(f) As soon as practicable thereafter (within ten (10) working days)
Landlord will submit to Tenant Working Drawings and
Specifications for construction of the Premises in accordance
with the approved Space Plan and written estimate of Tenant cost.
Tenant shall approve in writing said Working Drawings and
Specifications within five (5) working days after receipt
thereof.
(g) Any changes in the final Working Drawings and Specifications may
be made only by written request by Tenant to Landlord and all
costs incurred as a result of such changes (including costs of
revisions to Working Drawings and/or Specifications), shall be
paid for in full by Tenant upon billing by Landlord.
COMPLETION AND RENTAL COMMENCEMENT DATE
5. When Landlord's Architect has furnished Landlord with a certificate
that the work to be done by Landlord pursuant hereto has been
substantially complete, Completion of the Premises shall be deemed to
have occurred and possession thereof deemed delivered to Tenant for
all purposes of the Lease including, without limitation, Paragraph 3
thereof. Landlord and Tenant understand that pursuant to Paragraph 3
of the Lease, Tenant's obligation to pay Rent thereunder shall not
commence until Landlord's Architect has furnished such certificate;
provided, however, that if Landlord shall be delayed in
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substantially completing said work as a result of:
(a) Tenant's failure to furnish information so that Plans and
Specifications cannot be completed within the time frame as set
forth in Clause 4(c) above; or
(b) Tenant's request for materials, finishes or installations other
than Landlord's "Building Standard Work"; or
(c) Tenant's changes in the Plans, Working Drawings and/or
Specifications approved by Tenant after their submission to
Landlord; or
(d) Tenant's failure to pay in full all outstanding amounts due with
respect to Completion of the Premises;
then the commencement of Rent under said Lease shall be accelerated by the
number of days of such delay.
AMOUNTS PAYABLE TO LANDLORD
6. Amounts payable by Tenant to Landlord as required by this Work Letter
shall be paid as follows:
(a) A retainer of 90% of Tenant's estimated costs in excess of any
improvement allowance as set forth in Clause 7 shall be paid
prior to start of construction;
(b) At Landlord's sole discretion, progress bills may be rendered
during the Work;
(c) At Completion of the Premises, Landlord will submit the final
xxxx which is due and payable upon Tenant acceptance of the
Premises, which acceptance will not be unreasonably delayed or
denied; and
(d) Tenant agrees to pay Landlord promptly upon being billed.
C-4
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IMPROVEMENT ALLOWANCE
7. Landlord will construct improvements in accordance with this Exhibit
"C" of the Lease and Tenant's approved Working Drawings and
Specifications, provided however, that the cost of such improvements
and all architectural fees and Landlord's supervisory fee shall not
exceed an allowance totaling $681,600.00 ($30.00 per Rentable Square
Foot). Any unused dollars from this allowance not used for
improvements to the Premises within 60 days from issuance of
Certificate of Occupancy will not be disbursed, EXCEPT THAT TENANT
SHALL HAVE UP TO 180 DAYS FROM ISSUANCE OF THE CERTIFICATE OF
OCCUPANCY TO USE ANY REMAINING ALLOWANCE FOR LOW VOLTAGE WIRING FOR
VOICE AND DATA TELECOMMUNICATIONS, AND FURNITURE INSTALLATION. To the
extent that the cost of such improvements and fees exceeds this
allowance, Tenant shall be responsible to reimburse Landlord for such
excess in addition to a five percent (5%) construction management fee
on the excess amount. There shall be no refund or rebate to Tenant for
any unused portion of this improvement allowance.
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EXHIBIT "D"
RULES AND REGULATIONS
These Rules and Regulations have been adopted by Landlord for the
mutual benefit and protection of all the tenants of the Building in order to
insure the safety, care and cleanliness of the Building and the preservation of
order therein.
1. The sidewalks shall not be obstructed or used for any purpose other
than ingress and egress. No tenant and no employees of any tenant shall go upon
the roof of the Building without the consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building.
3. The plumbing fixtures shall not be used for any purpose other than
those for which they were constructed, and no sweepings, rubbish, rags or other
substances, including Hazardous Substances, shall be thrown therein.
4. No tenant shall cause or permit any objectionable or offensive
noise or odors to be emitted from the Premises.
5. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purposes.
6. No tenant shall make, or permit to be made, any unseemly or
disturbing noises, sounds or vibrations or disturb or interfere with tenants of
this or neighboring buildings or premises or those having business with them.
7. Each tenant must, upon the termination of this tenancy, restore to
the Landlord all keys of stores, offices, and rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to the Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change.
8. Canvassing, soliciting and peddling in the Building and the Project
are prohibited and each tenant shall cooperate to prevent such activity.
9. Landlord will direct electricians as to where and how telephone or
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord.
10. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger
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automobiles may be parked in a parking space without the express written
permission of Landlord. Trucks may only be parked at the rear of the Building
behind the Premises.
11. Tenant shall not use any area within the Property for storage
purposes other than the interior of the Premises.
D-2
44
EXHIBIT "E"
PROPERTY RESTRICTIONS
1. Resolution Establishing the Orlando Central park Municipal Service
Taxing Unit for Maintenance of Drainage Improvements, recorded in
Official Records Book 3947, Page 62, Public Records of Orange County,
Florida.
2. Resolution of the Board of Orange County Commissioners establishing a
special Purpose Lighting District for Orlando Central Park, recorded
in Official Records Book 2887, Page 238, Public Records of Orange
County, Florida.
3. Matters appearing on the plat of SouthPark Unit Three, according to the
Plat thereof, as recorded in Plat Book 17, Page 28, of the Public
Records of Orange County, Florida.
4. Declaration of Covenants and Restrictions for Southpark, recorded in
Official Records Book 3865, Page 413, Public Records of Orange County,
Florida, but omitting any covenant or restriction based on race, color,
religion, sex, handicap, familial status, or national origin unless and
only to the extent that said covenant (s) is exempt under Chapter 42,
Section 3607 of the United States Code or (b) relates to handicap but
does not discriminate against handicapped persons.
5. Special Covenants and Restrictions for SouthPark Unit Three, recorded
in Official Records Book 3971, Page 2740, Public Records of Orange
County, Florida, but omitting any covenant or restriction based on
race, color, religion, sex, handicap, familial status, or national
origin unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607 of the United States Code or (b) relates
to handicap but does not discriminate against handicapped persons.
6. Access Easement in favor of Orange County recorded in Official Records
book 3948, Page 1512, Public Records of Orange County, Florida.
7. Easement from Orlando Central Park, Inc. to the Orlando Utilities
Commission, recorded in Official Records Book 3428, Page 2664, Public
Records of Orange County, Florida.
45
8. Limitation against ingress, egress, light, air and view between the
Exhibit A property and the property conveyed pursuant to Deed dated
May 19, 1982, executed by Orlando Central Park, Inc. in favor of State
of Florida Department of Transportation, recorded in Official Records
Book 5266, Page 827, Public Records of Orange County, Florida, as set
forth in such Deed.
9. There exists no right of access to or from Xxxx Xxxxx Parkway (S.R.
423), a limited access highway, in favor of the Exhibit A property.
10. Use Agreement by and among Orlando Central Park, Inc., SouthPark
Property Owners Association, Inc., and Orange County, Florida, recorded
in Official Records Book 3863, Page 2956, Public Records of Orange
County, Florida.
11. Special Warranty Deed dated November 17, 1995 from Orlando Central
Park, Inc. to Gran Central Corporation.
12. Concurrent Agreement dated November 16, 1995 executed by Gran Central
Corporation in favor of Orlando Central Park, Inc.
