THE CRESCENT AT PRIMERA, BUILDING FOUR
LEASE SUMMARY
LEASE DATE: May 17, 1999
LANDLORD: Crescent Resources, Inc., a South Carolina corporation
NOTICE: Post Office Box 1003 [zip code 28201-1003]
(If delivered by mail)
ADDRESS OF LANDLORD 400 South Tryon Street, Suite 1300
[zip code 28202] (If personally delivery or
overnight service or telegram)
Charlotte, North Carolina
Attention: Regional Vice PresidentTelephone: (704) 382-8009
Facsimile: (704) 382-6385
COPY TO: Crescent Resources, Inc.
605 Crescent Executive Court, Suite 112
Lake Mary, Florida 32746
Attention: Property Manager Telephone: (407)804-1200
Facsimile: (407)804-1222
COPY TO: Pohl & Short, P.A.
280 West Canton Avenue, Suite 410
Winter Park, Florida 32789
Attention: John R. Simpson, Jr., Esquire
Telephone: (407)647-7645
Facsimile: (407)647-2314
TENANT: Bairnco Corporation, a Delaware corporation
NOTICE Bairnco Corporation
ADDRESS OF 2251 Lucien Way, Suite 300
TENANT: Maitland, Florida 32751
Attention: James W. Lambert,Telephone: (407) 875-2222
Facsimile: (407) 875-3398
COPY TO: Holland & Knight, LLP
Two South Orange Avenue
Orlando, Florida 32801
Attn: Christopher Brockman, EsquireTelephone: (407) 244-1100
Facsimile: (407) 244-5288
BUILDING: Office building known as The
Crescent at Primera, Building Four, located on the
Land (at 300 Primera Boulevard , Lake Mary,
Florida).
LAND: That certain tract or parcel of
land located in Lake Mary, Florida, and described
on Exhibit A attached hereto and incorporated
herein by reference.
PREMISES: Suite 432 on the fourth floor of
the Building, as more particularly described on
Exhibit B attached hereto and incorporated herein
by reference. The Premises Net Rentable Area and
the Premises Net Usable Area described below are
estimates. Upon completion of the final space
plan for the Premises, the actual Rentable Area
and Usable Area shall be calculated in accordance
with the measurement method promulgated by the
Building Owners and Managers Association (BOMA)
based upon a common area factor of thirteen
percent (13%). The Premises Net Rentable Area and
the Premises Net Usable Area shall then be
adjusted and determined in accordance with such
calculations and all other provisions of this
Lease which are based upon the Premises Net
Rentable Area or the Premises Net Usable Area
shall likewise be adjusted. Landlord and Tenant
shall execute an amendment to this Lease to
evidence all such adjustments.
PREMISES NET
RENTABLE
AREA: 11,241 square feet located on the
fourth floor in the Building, subject to
adjustment as described above.
PREMISES NET
USABLE AREA: 9,948 square feet located on the fourth floor in
the Building, subject to adjustment as described
above.
BUILDING NET
RENTABLE AREA: 121,467 square feet, measured in accordance with
BOMA standards.
LEASE TERM: Ten (10) years, beginning on the Commencement
Date. Provided, however, if the Commencement Date
is any day other than the first day of a calendar
month, the Lease Term shall be extended
automatically until midnight on the last day of
the calendar month in which the Lease Term
otherwise would expire.
COMMENCEMENT
DATE: August 15, 1999.
BASE RENTAL: Period Annual Rent per Monthly Rent*
Rentable Square Foot
Year One $19.25 $18,032.44
Year Two $19.65 $18,407.14
Year Three $20.06 $18,791.21
Year Four $20.48 $19,184.64
Year Five $20.91 $19,587.44
Year Six $21.36 $20,008.98
Year Seven $21.82 $20,439.89
Year Eight $22.30 $20,889.53
Year Nine $22.78 $21,339.17
Year Ten $23.29 $21,816.91
* - Monthly Rent shall be
adjusted upon final measurement of the Premises
Net Rentable Area and evidenced by an amendment to
this Lease.
RENT
CONCESSION: Tenant shall be entitled to a Rent Concession
which is equal to the Base Rental payable for the
first four months of the Lease Term. Landlord
shall provide such Rent Concession by waiving Base
Rental for the first four months of the Lease
Term. Accordingly, the Advance Base Rental
payment shall be applied to the rent due for the
fifth month of the Lease Term.
BASIC COSTS
EXPENSE STOP: Shall mean the Basic Costs paid or incurred by
Landlord during calendar year 1999, grossed up to
reflect occupancy of 95% of the rentable area in
the Building for the entire year. Provided,
however, that the component of the Basic Costs
Expense Stop for real estate taxes for the
Building shall be $1.70 multiplied by the Building
Net Rentable Area regardless of the actual real
estate taxes for calendar year 1999. Accordingly,
no payment shall be due from Tenant for increases
in Basic Costs until calendar year 2000, at which
time Tenant shall pay Landlord for increases in
Basic Costs as described in Paragraph 7 of this
Lease. Tenant acknowledges that the Premises
Electrical Expense Stop is 60 cents per rentable square
foot per year and that Tenant is obligated to pay
electrical expenses exceeding the Premises
Electrical Expense Stop pursuant to Paragraph 13
of this Lease. For purposes of calculating
Tenant's payment of excess Basic Costs as provided
in Paragraph 7 of this Lease, annual total
increases in "Controllable Basic Costs" (as
defined below) for calendar years 2000 and
thereafter shall be limited to eight percent (8%)
of the prior year's Controllable Basic Costs.
"Controllable Basic Costs" shall mean the costs
incurred by Landlord for janitorial service and
supplies, common area maintenance and
administrative services. For purposes of applying
and calculating this limitation, Controllable
Basic Costs shall be grossed up, if necessary, to
reflect occupancy of 95% of the rentable space in
the Building. This limitation on increases in
Controllable Basic Costs shall apply to annual
increase of total Controllable Basic Costs, not to
any single component or item of Controllable Basic
Costs.
PREMISES
ELECTRICAL
EXPENSE STOP: Sixty cents (60 cents) multiplied by the Premises Net
Rentable Area, per year.
ADVANCE
BASE RENTAL
PAYMENT: Nineteen Thousand Two Hundred
Ninety-Four and 71/100 Dollars ($19,294.71),
including 7% sales tax, payable upon occupancy of
the Premises.
SECURITY
DEPOSIT: Not Applicable.
TENANT
IMPROVEMENTS
ALLOWANCE: Shall be $20.00 per rentable square foot of the
Premises for space planning, architectural,
mechanical and construction drawings and hard
construction costs. The Tenant Improvements
Allowance shall be applied and paid as described
in Paragraph 9 of this Lease.
BROKER: The Welsh Company (Agent: Greg Morrison)
The foregoing summary (the "Lease Summary") is hereby
incorporated into and made a part of the Lease Agreement. In the
event, however, of a conflict between the terms of the Lease
Summary and the terms of the Lease Agreement, the latter shall
control.
Initial: RJH (For Landlord)
Initial: JWL (For Tenant)
TABLE OF CONTENTS
PARAGRAPH DESCRIPTION PAGE
1. Definitions 1
2. Lease Grant 3
3. Lease Term 4
4. Use 5
5. Base Rental 5
6. Adjustments to Base Rental 6
7. Adjustments for Increase in Basic Costs 6
8. Services to Be Furnished by Landlord 7
9. Construction of Improvements 10
10. Maintenance and Repair by Landlord 10
11. Maintenance and Repair by Tenant 11
12. Alterations by Tenant 12
13. Use of Electrical Services by Tenant 12
14. Graphics and Signage 13
15. Parking 13
16. Compliance with Laws 14
17. Building Rules 14
18. Entry by Landlord 15
19. Assignment and Subletting 15
20. Liens 17
21. Property Insurance 17
22. Liability Insurance 18
23. Indemnities 18
24. Waiver and Waiver of Subrogation Rights 18
25. Casualty Damage 19
26. Condemnation 19
27. Damages from Certain Causes 20
28. Events of Default/Remedies 20
29. Security Deposit 22
30. Peaceful Enjoyment 22
31. Holding Over 22
32. Subordination to Mortgage 23
33. Estoppel Certificate 23
34. Attorneys' Fees 23
35. No Implied Waiver 24
36. Personal Liability 24
37. Notices 24
38. Severability 25
39. Recordation 25
40. Governing Law 25
41. Force Majeure 25
42. Time of Performance 26
43. Transfers by Landlord 26
44. Commissions 26
45. Effect of Delivery of this Lease 26
46. Real Estate Investment Trust 26
47. Hazardous Materials 27
48. Landlord's Right of Relocation 27
49. Evidence of Authority 27
50. Survival of Obligations 28
51. Confidentiality 28
52. Contractual Landlord's Lien 28
53. Rent a Separate Covenant 28
54. Radon 28
55. Miscellaneous Provisions 28
56. Special Stipulations 29
57. Waiver of Jury Trial 29
EXHIBITS
A Description of Land
B Designation of Premises
C Construction of Improvements
D Cleaning and Janitorial Services
E Rules and Regulations
F Special Stipulations - Not Applicable.
G Guaranty of Lease - Not Applicable.
H Commencement Date Stipulation
I Preliminary Tenant Improvements Plans and
Specifications
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into
on the date and between the Landlord and Tenant identified in the
Lease Summary.
WITNESSETH:
1. Definitions.
Capitalized terms appearing in this Lease, unless defined
elsewhere in this Lease or in the Lease Summary, shall have these
definitions:
(a) "Additional Rent" shall mean all sums of money in
addition to Base Rental which shall become due from Tenant under
this Lease, including, without limitation, Tenant's Proportionate
Share of Basic Costs in excess of the Basic Costs Expense Stop,
as set forth in Paragraph 7 herein.
(b) "Adjustment Date" is not applicable.
(c) "Advance Base Rental Payment" shall have the meaning
set forth in the Lease Summary.
(d) "Base Rental" during the Lease Term shall be the amount
so designated in the Lease Summary, as same may be adjusted
pursuant to the terms of this Lease, together with all taxes
(excise, sales, use or other) levied or assessed by any
governmental entity on Base Rental, Additional Rent or any other
sums payable by Tenant under this Lease.
(e) "Basic Costs" shall mean and include: all expenses
relating to the Building and the Building Exterior Common Areas,
including all costs of operation, maintenance and management
thereof and assessments for public betterments or improvements,
any and all assessments or charges that are charged by any
property owners association applicable to the Land, ad valorem
real estate taxes and any other tax on real estate as such, ad
valorem taxes on furniture, fixtures, equipment or other property
used in connection with the operation, maintenance or management
of the Building and the Building Exterior Common Areas and the
costs, including, without limitation, legal and consulting fees,
of contesting or attempting to reduce any of the aforesaid taxes,
reasonable amortization of capital improvements which are
required by applicable law or which will improve the efficiency
of operating, managing or maintaining the Building or which will
reduce Basic Costs or the rate of increase thereof, the cost of
labor, materials, repairs, insurance, utilities and services and
such other expenses with respect to the operation, maintenance
and management of the Building and the Building Exterior Common
Areas, all of which expenses shall be incurred or paid by or on
behalf of Landlord or are properly chargeable to Landlord's
operating expenses in accordance with generally accepted
accounting principles as applied to the operation, maintenance
and management of a first class office building.
Notwithstanding the foregoing, it is agreed that the Basic
Costs shall not include: any leasing or marketing or brokerage
costs, fees, or commissions; any cost of upfitting space for
occupancy by tenants; any amortization of principal or interest
on account of any indebtedness; any legal expenses arising out of
any misconduct or negligence of Landlord or any person for which
Landlord is responsible or arising out of dealings between any
principals constituting Landlord or arising out of any leasing,
sale or financing of the Building or the Land or any part of
either of them; or, except as expressly permitted above, any
amortization or depreciation.
(f) "Basic Costs Expense Stop" shall be the amount so
designated in the Lease Summary.
(g) "Broker" shall be the party or parties so designated in
the Lease Summary.
(h) "Building" shall have the meaning set forth in the
Lease Summary.
(i) "Building Exterior Common Areas" shall mean (A) the
exterior of the Building and all of the improvements and real
property on the Land, including, without limitation, all parking
areas, enclosed or otherwise, and all streets, sidewalks, signs
and landscaped areas located on or within the Land; and (B) all
signs and landscaped areas located in public rights-of-way
directly contiguous to the Land if and to the extent Landlord
maintains such signs and landscaped areas from time to time.
(j) "Building Net Rentable Area" shall have the meaning set
forth in the Lease Summary.
(k) "Building Shell Improvements" shall mean the Building
improvements constructed or to be constructed by Landlord, at
Landlord's sole cost and expense and without applying any of the
Tenant Improvements Allowance. The Building Shell Improvements
are more particularly described in Exhibit C attached hereto and
incorporated herein by reference.
(l) "Commencement Date" shall mean that date set forth in
the Lease Summary, as same may be adjusted pursuant to the
provisions of Paragraph 3 herein.
(m) "Common Areas" shall mean those areas within the
Building devoted to corridors, elevator foyers, restrooms,
mechanical rooms, janitorial closets, electrical and telephone
closets, vending areas and other similar facilities provided for
the common use or benefit of tenants generally and/or the public,
including any columns and/or projections located within said
areas.
(n) "Premises Electrical Expense Stop" shall have the
meaning set forth in the Lease Summary. The Premises Electrical
Expense Stop covers the annual cost of electricity to be supplied
to the Premises (i) to operate lights and light fixture therein,
(ii) to operate equipment and fixtures that are connected to
electrical outlets therein and (iii) to operate any HVAC system
or unit that exclusively serves the Premises (or any portion
thereof).
(o) Intentionally deleted.
(p) "Force Majeure Matters" is defined in Paragraph 41
herein.
(q) "Land" shall mean the real property upon which the
Building is situated as more particularly described on Exhibit A
hereto.
(r) "Lease Term" shall mean the term of this Lease as set
forth in the Lease Summary.
(s) "Premises" shall have the meaning set forth in the
Lease Summary.
(t) "Premises Net Rentable Area" shall have the meaning set
forth in the Lease Summary.
(u) "Premises Net Usable Area" shall have the meaning set
forth in the Lease Summary.
(v) "Tenant Improvements" shall mean the improvements to be
constructed and installed in the Premises (beyond the Building
Shell Improvements) in accordance with the Tenant Improvements
Plans and Specifications, the terms of Paragraph 9 herein and
Exhibit C attached hereto.
(w) "Tenant Improvements Allowance" shall mean the
allowance to be provided by Landlord to Tenant for the
construction of the Tenant Improvements. The amount of the Tenant
Improvements Allowance is set forth in the Lease Summary.
(x) "Tenant Improvements Plans and Specifications" shall
mean the plans and Specifications" for the construction of the
Tenant Improvements, which plans and specifications shall be
prepared pursuant to Exhibit C attached hereto.
(y) "Tenant's Proportionate Share" means that fraction, the
numerator of which is the Premises Net Rentable Area and the
denominator of which is the Building Net Rentable Area.
2. Lease Grant.
Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, upon and subject to the covenants, agreements,
provisions and conditions of this Lease, the Premises located in
the Building.
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
herein. Subject to delays resulting from Force Majeure Matters or
delays caused by Tenant or Tenant's agents, employees,
contractors, subcontractors or licensees, including, without
limitation, change orders to the Tenant Improvements Plans and
Specifications ("Tenant Delay Factors"), Landlord will deliver
the Premises to Tenant not later than the Commencement Date set
forth in the Lease Summary or 120 days after issuance of a
building permit for the Tenant Improvements, whichever is later,
(the "Target Commencement Date"), with the Tenant Improvements
substantially completed in accordance with the Tenant
Improvements Plans and Specifications, as evidenced by a
certificate of occupancy issued for the Premises by appropriate
local government and by a certificate of substantial completion
issued by Landlord's architect or other designated engineering
representative. If Landlord for any reason whatsoever cannot
deliver possession of the Premises to Tenant (with the Tenant
Improvements substantially completed in accordance with the
Tenant Improvements Plans and Specifications) not later than the
Target Commencement Date, this Lease shall not be void or
voidable nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom except as described below; but in that
event, Landlord shall act diligently and in good faith to
complete the work that is necessary to allow Landlord to deliver
the Premises to Tenant as specified above. In such case, (a) if
Landlord's failure to deliver possession of the Premises to
Tenant (with the Tenant Improvements substantially completed in
accordance with the Tenant Improvements Plans and Specifications)
by the Target Commencement Date is not the result, in whole or in
part, of one or more Tenant Delay Factors, the Commencement Date
shall be adjusted to be the date when Landlord does in fact
deliver possession of the Premises to Tenant as described above
and Landlord shall pay delay damages to Tenant as described
below, and (b) if Landlord's failure to deliver possession of the
Premises to Tenant (with the Tenant Improvements substantially
completed in accordance with the Tenant Improvements Plans and
Specifications) by the Target Commencement Date is the result, in
whole or in part, of one or more Tenant Delay Factors, the
Commencement Date shall be the later of (i) the Target
Commencement Date or (ii) the date the Tenant Improvements would
have been substantially completed in the absence of such Tenant
Delay Factors(s) and no delay damages shall be payable to Tenant.
Landlord shall have one hundred twenty (120) days after the Lease
Date to obtain a building permit for the Tenant Improvements.
Thereafter, Landlord shall have an additional one hundred twenty
(120) days to complete construction of the Tenant Improvements.
If Landlord cannot complete construction of the Tenant
Improvements and deliver possession of the Premises to Tenant
within two hundred forty (240) days after the Lease Date (the
"Delivery Deadline"), which Delivery Deadline shall be extended
by Force Majeure Matters and by Tenant Delay Factors, then
Landlord shall pay delay damages to Tenant equal to one day of
Base Rental for each one day of delay for the period from the
Delivery Deadline through the date that possession of the
Premises is delivered to Tenant with the Tenant Improvements
completed. Such delay damages shall, at Landlord's election,
either be paid in cash to Tenant or as a credit against monthly
payments of Base Rental otherwise due hereunder.
Within five (5) days following Tenant's occupancy of the
Premises, Tenant shall execute and deliver to Landlord duplicate
originals of a stipulation in the form attached to this Lease as
Exhibit H (with the blanks properly completed). Subject to
Landlord's approval of the information inserted by Tenant in the
blanks, Landlord shall execute the duplicate originals of the
stipulation and shall promptly return one (1) fully executed
original to Tenant. Punchlist items identified by agreement of
Landlord and Tenant shall be completed by Landlord within thirty
(30) days after the Commencement Date.
4. Use.
The Premises shall be used for office purposes and for no
other purposes. Tenant agrees not to use or permit the use of the
Premises for any purpose that is illegal or is in violation of
any applicable legal, governmental or quasi-governmental
requirement, ordinance or rule, or that, in Landlord's opinion,
creates a nuisance, disturbs any other tenant of the Building or
injures the reputation of the Building.
5. Base Rental.
(a) Tenant agrees to pay during the Lease Term to Landlord,
without any setoff or deduction, except as provided herein, the
Base Rental, and all such other sums of money as shall become due
hereunder as Additional Rent, all of which are sometimes herein
collectively called "rent" or "Rent." Base Rental for each
calendar year or portion thereof during the Lease Term, together
with any applicable adjustment thereto pursuant to Paragraph 6
herein, shall be due and payable in advance, in twelve (12) equal
installments on the first day of each calendar month during the
Lease Term; provided, however, as set forth in the Lease Summary
and Paragraph 5(b) herein, Base Rental for the fifth full
calendar month during the Lease Term (i.e., the Advance Base
Rental Payment) shall be due and payable upon occupancy of the
Premises by Tenant. Tenant hereby agrees to pay such Base Rental
and any adjustments thereto to Landlord at Landlord's address
provided herein (or such other address as may be designated by
Landlord in writing from time to time) monthly, in advance, and
without demand. 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 any
adjustments thereto for such month or months shall be prorated,
based on the number of days in such month or months.
(b) Upon occupancy of the Premises, Tenant shall pay to
Landlord the Advance Base Rental Payment as additional security
for Tenant's performance of its obligations under this Lease. If
Tenant is not then in default under this Lease, Landlord shall
apply the Advance Base Rental Payment to the payment of the
monthly installment of Base Rental due relative to the fifth full
calendar month during the Lease Term. If Tenant is then in
default under this Lease, Landlord may, at its option, apply all
or any part of the Advance Base Rental Payment to cure the
default. With regard to any partial calendar month (if any)
preceding the first full calendar month during the Lease Term,
Tenant shall pay the applicable prorata portion of the monthly
installment of Base Rental in a timely manner pursuant to
Paragraph 5(a) herein.
6. Adjustments to Base Rental. Base Rental shall be
adjusted annually on the anniversary of the Commencement Date as
provided in the Lease Summary.
7. Adjustments for Increases in Basic Costs.
With respect to each calendar year or portion thereof during
the Lease Term (and any renewal or extension thereof), Tenant
shall pay Landlord as Additional Rent, in the manner hereafter
provided, Tenant's Proportionate Share of the amount by which
Basic Costs paid or incurred by Landlord during such period
(grossed up, if necessary, to reflect occupancy of ninety-five
percent (95%) of the rentable space in the Building) exceeded the
Basic Costs Expense Stop. References in this Paragraph 7 to
"Basic Costs" shall be deemed and construed to refer to Basic
Costs as grossed up pursuant to the immediately preceding
sentence. If Tenant shall be obligated to make payments as
aforesaid with regard to any partial calendar year during the
Lease Term, Basic Costs in excess of the Basic Costs Expense Stop
shall be prorated on the basis of the number of days during such
calendar year for which Tenant is obligated to make such
payments.
It is acknowledged and agreed that it will not be possible
to determine the actual amount of the excess (if any) of Basic
Costs over the Basic Costs Expense Stop for a given calendar year
until after the end of such calendar year. Therefore, until
Tenant's liability for Tenant's Proportionate Share of Basic
Costs in excess of the Basic Costs Expense Stop shall have been
finally determined for a particular calendar year, Tenant shall
make payment on account of excess Basic Costs as follows:
(a) Commencing as of the Commencement Date and continuing
throughout the Lease Term (and any renewal or extension thereof),
and subject to the limitation expressed above, Landlord shall
make a good faith estimate of Basic Costs for such calendar year
and Tenant's Proportionate Share thereof (hereinafter "Estimated
Basic Costs" and "Tenant's Estimated Proportionate Share"), and
Tenant shall pay to Landlord, as Additional Rent with each
monthly installment of Base Rental, an amount equal to one-
twelfth (1/12) of Tenant's Estimated Proportionate Share of the
amount by which Estimated Basic Costs for the current calendar
year are estimated to exceed the Basic Costs Expense Stop. Such
payments for any partial month shall be paid in advance at the
daily rate equal to the monthly payment divided by the number of
days in the month for which the same is due. On or about January
1 of each calendar year in respect of which Tenant shall be
obligated to make payments on account of excess Basic Costs
during the Lease Term (and any renewal or extension thereof),
Landlord shall furnish to Tenant a statement for such calendar
year of Tenant's Estimated Proportionate Share and of Estimated
Basic Costs and thereupon, subject to the limitations expressed
above, as of such January 1, Tenant shall make payments under
this Paragraph 7(a) in accordance with such statement.
(b) On or before April 1 in the year following the year in
which the Commencement Date occurs and each April 1 thereafter
during the Lease Term (and any renewal or extension thereof),
Landlord shall furnish Tenant with an itemized statement setting
forth the total amount of Basic Costs and Tenant's Proportionate
Share of the amount by which Basic Costs for the preceding
calendar year exceeded the Basic Costs Expense Stop. If any such
statement shall show an overpayment or underpayment of Tenant's
Proportionate Share of excess Basic Costs for the preceding
calendar year, any overpayment shall be refunded to Tenant or
credited against payments due from Tenant under this Lease, and
the full amount of any underpayment shall be paid to Landlord by
Tenant not later than the first day of the first calendar month
after such statement shall have been delivered to Tenant.
(c) In the event Tenant is required to pay Tenant's
Proportionate Share of Basic Costs pursuant to this Paragraph 7,
Tenant shall have the right, at Tenant's expense and no more
frequently than once per calendar year, to inspect Landlord's
books and records showing Basic Costs of the Building for the
calendar year in question; provided, however, Tenant shall not
have the right to withhold any payments of Tenant's Proportionate
Share of Basic Costs due and payable hereunder the amount of
which may be in dispute, and Tenant must pay the entire amount
due and payable hereunder prior to reviewing Landlord's books and
records. In the event an inspection of Landlord's books and
records by any tenant of the Building reveals a verifiable error
in Landlord's computation of Basic Costs or Tenant's
Proportionate Share of excess Basic Costs resulting in an
overpayment by Tenant of Tenant's Proportionate Share of excess
Basic Costs (after allowing for any adjustment pursuant to
Paragraph 7(b) herein), Landlord shall promptly reimburse the
amount of such overpayment to Tenant, together with interest
thereon from the date of overpayment until the date of
reimbursement at a rate per annum equal to one percent (1%) plus
the Prime Rate (as defined herein) in effect as of the date of
overpayment. As used in this Lease, the "Prime Rate" shall be
deemed to be that rate of interest announced by Nations Bank,
N.A., or any successor thereto, from time to time as its "prime
rate," and Landlord and Tenant acknowledge and understand that
Nations Bank, N.A., lends at rates of interest both above and
below the Prime Rate. Landlord's statement setting forth the
total amount of Tenant's Proportionate Share of excess Basic
Costs furnished to Tenant in accordance with the provisions of
this Paragraph 7 shall be deemed to have been approved by Tenant
unless protested by Tenant in writing within ninety (90) days
after delivery of such statement to Tenant at the Premises. If
the results of Tenant's inspection of Landlord's books and
records indicate that the statement for any calendar year over-
stated Basic Costs for such calendar year by more than five
percent (5%), Landlord shall pay Tenant the reasonable cost of
such inspection.
8. Services to Be Furnished by Landlord.
Landlord agrees to furnish Tenant the following services:
(a) Hot and cold water at those points of supply identified
on the Tenant Improvements Plans and Specifications.
(b) Except with regard to any HVAC system or unit that
exclusively serves the Premises (or any portion thereof), which
shall be Tenant's responsibility pursuant to Paragraph 11(b)
herein, Landlord shall furnish central heat and air conditioning
sufficient for the comfortable occupancy of the Premises.
Provided, however, central heating and air conditioning service
at times other than for "Normal Business Hours" for the Building
(which are 8:00 a.m. to 6:00 p.m. on Mondays through Fridays and
8:00 a.m. to 1:00 p.m. on Saturdays, exclusive of normal business
holidays identified as New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day), shall be
furnished only on the written request of Tenant delivered to
Landlord on the following schedule:
(1) For evenings Monday through Friday - prior to 3:00
p.m. on the day when such service is required;
(2) For Saturday afternoon, Saturday evening and
Sunday - prior to 3:00 p.m. on Friday; and
(3) For normal business holidays - prior to the times
set forth above for the last day prior to such holiday.
The above notwithstanding, upon written request and authorization
from Tenant, Landlord shall program the energy management system
for the Building to give Tenant the ability to control heating
and air conditioning services to the Premises after Normal
Business Hours without the need for daily notice to Landlord.
Tenant shall bear the entire cost (as Additional Rent) of such
additional heating and air conditioning furnished to the Premises
at times other than Normal Business Hours, and Tenant shall pay
such costs within ten (10) days following demand by Landlord. The
cost to be charged by Landlord to Tenant hereunder for heating
and air conditioning service used by Tenant during times other
than Normal Business Hours shall be $30.00 per hour per floor of
the Building. Such hourly rate may be increased from time to
time during the Lease Term only to reimburse Landlord for
increases in the cost to Landlord of electricity consumed in
providing the heating and air conditioning service. If more than
one tenant on the same floor requests heating and air
conditioning services after Normal Business Hours, the hourly
charge shall be apportioned among all such tenants.
If heat-generating machines or equipment shall be used in
the Premises by Tenant which affect the temperature otherwise
maintained by the Building HVAC system, Landlord shall have the
right (at Landlord's option) to install (or to require Tenant to
install) one or more HVAC systems or units that exclusively serve
the Premises (or the portion thereof where such heat-generating
machines or equipment are located). As set forth in Paragraph
11(b) herein, the cost of any such separate HVAC systems or units
that exclusively serve the Premises, including the cost of
installation and the cost of operation and maintenance thereof,
shall be borne by Tenant.
(c) Electrical service to serve the Common Areas and the
Premises, subject to the terms of Paragraph 13 herein.
(d) Routine maintenance and electric lighting service for
all Common Areas of the Building in the manner and to the extent
deemed by Landlord to be standard.
(e) Janitorial service, in accordance with the schedule
attached hereto as Exhibit D, Mondays through Fridays, exclusive
of normal business holidays as described in subparagraph (b)
above; provided, however, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the
additional cleaning cost attributable thereto as Additional Rent
upon presentation of a statement therefor by Landlord.
(f) All Building standard fluorescent and incandescent
light bulb replacement in the Common Areas and all light bulb
replacement in the Premises. Provided, however, Tenant shall
promptly pay to Landlord, as Additional Rent, costs incurred by
Landlord in replacing light bulbs in the Premises (including the
cost of purchasing such light bulbs) if and to the extent such
replacement cost exceeds the replacement cost for Building
standard light bulbs. As used herein, "Building standard light
bulbs" shall be deemed to refer to 2' x 4', 3 lamp F40/CW with
energy saving ballasts.
(g) Tenant, its employees, and its invitees who have been
registered with Landlord shall have access to the Premises
(including elevator service) by a code or card access system
seven (7) days a week, twenty-four (24) hours a day. Tenant shall
receive an allotment of codes or cards for all of its employees
and for its invitees who are registered with Landlord. Landlord
shall bear the cost of each such code or card initially issued,
provided Tenant shall pay to Landlord (as Additional Rent, within
thirty (30) days after Tenant receives an invoice therefor) the
actual costs incurred by Landlord in obtaining and issuing
replacement codes or cards for codes or cards previously issued.
Landlord, however, shall have no liability to Tenant, its
employees, agents, invitees or licensees for losses due to theft
or burglary or for damages done by unauthorized persons on the
Premises, and Landlord shall not be required to insure against
any such losses. Tenant shall cooperate fully with Landlord's
efforts to maintain controlled access to and in the Building
during times other than Normal Business Hours and shall follow
all regulations promulgated by Landlord with respect thereto.
The failure by Landlord to any extent to furnish, or the
interruption or termination of these defined services in whole or
in part, resulting from any Force Majeure Matters or from any
other causes beyond the reasonable control of Landlord shall not
(i) render Landlord liable in any respect, (ii) be construed as
an eviction of Tenant, (iii) work an abatement of rent, or (iv)
relieve Tenant from the obligation to fulfill any covenant or
agreement in this Lease. 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 resulting therefrom. Landlord shall use its best
commercial efforts to restore any interrupted services. If such
services are not restored within three (3) business days after
such interruption, Tenant may take such action as is necessary to
restore the interrupted services and Landlord shall thereafter
reimburse Tenant for the reasonable costs of such restoration,
and Tenant may pursue other legal or equitable remedies not
otherwise prohibited hereunder. Amounts payable pursuant to this
Paragraph 8 shall be deemed to be Additional Rent due from Tenant
to Landlord, and any default in the payment thereof shall entitle
Landlord to all remedies provided for herein at law or in equity
on account of Tenant's failure to pay Base Rental.
9. Construction of Improvements.
(a) Subject to Force Majeure Matters and consistent with
the terms of Paragraph 3 herein and Exhibit C hereto, Landlord
shall pursue diligently and in good faith the completion of the
Building Shell Improvements and the Tenant Improvements.
(b) The Tenant Improvements Allowance shall be applied by
Landlord against the costs of designing, planning and
constructing the Tenant Improvements. In the event the costs
incurred in connection with the design, planning and construction
of the Tenant Improvements exceed the Tenant Improvements
Allowance, Tenant shall be responsible for bearing and paying
such excess costs (the "Excess Costs"), as follows:
(1) Tenant shall pay to Landlord, prior to the
commencement of construction of the Tenant Improvements, an
amount equal to fifty percent (50%) of such Excess Costs (as
then estimated by Landlord).
(2) After issuance of a Certificate of Occupancy for
the Tenant Improvements but prior to occupancy of the
Premises by Tenant, Tenant shall pay to Landlord an amount
equal to ninety percent (90%) of the Excess Costs (as then
estimated by Landlord), less payments received by Landlord
pursuant to Paragraph 9(b)(1) herein.
(3) As soon as the final accounting is prepared and
submitted by Landlord to Tenant and punchlist items are
completed by Landlord, Tenant shall pay to Landlord the
entire unpaid balance of the actual Excess Costs based on
the final costs to Landlord.
The Excess Costs (if any) payable by Tenant under this Paragraph
9(b) shall constitute Additional Rent due hereunder at the time
specified herein, and failure to make any such payment when due
shall constitute a default of Tenant under Paragraph 28 herein.
(c) Except as otherwise provided above in this Paragraph 9,
all installations and improvements now or hereafter placed on or
in the Premises shall be for Tenant's account and at Tenant's
cost. Tenant shall also pay increased ad valorem taxes (as
determined by local taxing authority) and increased insurance (as
determined by insurance company) on or attributable to the Tenant
Improvements (to the extent of the cost of the Tenant
Improvements is in excess of the Tenant Improvements Allowance),
which cost shall be payable by Tenant to Landlord as Additional
Rent.
10. Maintenance and Repair by Landlord.
Except to the extent any such repairs or replacements are
the responsibility of Tenant pursuant to the terms of Paragraph
11 or Paragraph 12 herein or any other provision in this Lease,
Landlord shall be responsible for maintaining, repairing and
replacing:
(a) the roof, foundations, exterior walls, and all
structural parts of the Building;
(b) all portions of the Premises affected by structural
conditions whose source lies outside the Premises;
(c) all Common Areas and Building Exterior Common Areas;
(d) all utility, sprinkler service, electrical and plumbing
lines and HVAC systems outside the Premises but which serve the
Premises on a non-exclusive basis; and
(e) all utility, sprinkler service, electrical and plumbing
lines and HVAC systems within the Premises but which serve other
space within the Building.
Except as expressly provided herein, Landlord shall not be
required to make any repairs to the Premises or the Building, but
Landlord shall maintain the Building to the same quality and
standards as originally constructed.
11. Maintenance and Repair by Tenant.
In addition to any other provisions in this Lease which
obligate Tenant to perform maintenance, repair and replacement
duties relative to the Premises and/or the Building, Tenant shall
be responsible for the following maintenance, repair and
replacement responsibilities:
(a) Tenant shall, at its expense, keep and maintain the
Premises in good order and repair and not commit or allow any
waste to be committed on any portion of the Premises; and at the
termination of this Lease, Tenant agrees to deliver up the
Premises to Landlord in as good of a condition as existed on the
Commencement Date, excepting only ordinary wear and tear, acts of
God and repairs required to be made by Landlord pursuant to the
terms of this Lease.
(b) Tenant shall, at its expense, keep and maintain all
HVAC systems and units, appliances and equipment that exclusively
serve the Premises (or any portion thereof). In the event the
Premises (or any portion thereof) is exclusively served by an
HVAC system or unit, Tenant shall contract with a qualified
heating and air conditioning service company approved by Landlord
for the monthly maintenance and the repair and replacement, as
necessary, of such HVAC system or unit. Tenant shall provide
Landlord with a copy of any contract required under this
Paragraph 11(b) within ten (10) days after the Commencement Date
and a copy of any subsequent contracts (or any renewal contracts)
within ten (10) days after their execution. The cost of all
contracts which Tenant is required to maintain under this
Paragraph 11(b) shall be borne by Tenant.
(c) Tenant shall, at Tenant's own cost and expense, repair
or replace any damage done to the Common Areas, the Building
Exterior Common Areas, the Building, or any part thereof
(including the Premises), caused by Tenant or Tenant's agents,
employees, invitees, or visitors, and such repairs shall restore
the damaged area to as good of a condition as existed prior to
such damage and shall be effected in compliance with all
applicable laws; provided, however, if, within a reasonable
period following written notice from Landlord of the need for
such repairs or replacements, Tenant fails to make such repairs
or replacements promptly, Landlord may, at its option, make the
repairs or replacements, and Tenant shall pay the cost thereof to
Landlord on demand as Additional Rent.
12. Alterations by Tenant.
Tenant shall not make or allow to be made any alterations to
the Premises or install any vending machines in the Premises,
without first obtaining the written consent of Landlord in each
such instance, such consent not to be unreasonably withheld,
delayed or qualified. Any and all alterations to the Premises,
including, without limitation the Tenant Improvements, shall
become the property of Landlord upon the termination of this
Lease (except for personal property and furniture owned by
Tenant). Landlord may, by written notice to Tenant not later than
sixty (60) days prior to termination, require Tenant, upon the
expiration or earlier termination of this Lease, to remove any
and all fixtures, equipment and other improvements installed in
the Premises by Tenant. In the event that Landlord so elects and
Tenant fails to remove such improvements, Landlord may remove
such improvements at Tenant's cost, and Tenant shall pay Landlord
on demand the cost of restoring any damage to the Premises
resulting from such removal, excepting only ordinary wear and
tear and acts of God.
13. Use of Electrical Services by Tenant.
Landlord shall install an electrical check meter (a "Check
Meter ") for the Premises as part of the Tenant Improvements. The
Check Meter will measure all electricity supplied to the Premises
(i) to operate lights and light fixtures therein, (ii) to operate
equipment and fixtures that are connected to electrical outlets
therein and (iii) to operate any HVAC system or unit that
exclusively serves the Premises (or any portion thereof). As
contemplated in Paragraph 8(c) herein, Landlord shall pay the
local electrical utility company prior to delinquency for the
electricity supplied to the Premises through the Check Meter.
Provided, however, in the event the amount paid by Landlord to
the local electrical utility company for electricity supplied to
the Premises (as measured by the Check Meter) for any given
period of time is greater than the allocable portion of the
Premises Electrical Expense Stop (allocated to the Premises for
the relevant period of time), Landlord may submit an invoice to
Tenant periodically for the cost of such excess electricity
supplied to the Premises and Tenant shall pay the full invoiced
amount (as Additional Rent) to Landlord within ten (10) days
after Tenant's receipt of each such invoice. The following
formula shall be used to determine the invoice amount for
Tenant's excess electrical usage in the Premises:
Invoice Amount =Total Electrical Costs Per Check Meter -
[(Premises Electrical Expense
Stop) x (Number of Days in Period Number
of Days in Year)]
For example, presuming (for purposes of this illustration only)
that the Premises Net Rentable Area is 10,000 square feet, that
the Check Meter indicates $2,000.00 of electricity was supplied
to the Premises during a given 90-day period and that the
calendar year in which such 90-day period falls contains 365
days, Landlord shall be entitled hereunder to send an invoice to
Tenant in the amount of $520.40 for excess electrical usage in
the Premises during such 90-day period, computed as follows:
Invoice Amount =$2,000.00 - [($6,000.00) x (90/365)]
= $2,000.00 -[$6,000.00 x .2466]
= $2,000.00 - $1,479.60
= $520.40
In computing invoices to be sent to Tenant for electricity
supplied to the Premises through the Check Meter, Landlord shall
use the same billing rate per kilowatt hour as is charged to the
overall Building by the local electrical utility company.
Additionally, with regard to any period of time that Landlord
elects to use a Check Meter to bill Tenant for excess electricity
supplied to the Premises, Landlord also shall use a Check Meter
to bill other tenants in the Building for excess electricity
supplied to their respective premises; and in such case, the cost
of electricity supplied to the Premises and to other premises in
the Building for which Landlord separately bills Tenant and other
tenants in the Building (i.e. such electrical costs that exceed
the Premises Electrical Expense Stop) shall not be included in
Basic Costs hereunder. Landlord shall be entitled to bill Tenant
pursuant to this Paragraph 13 for excess electrical usage in the
Premises monthly, quarterly, annually or otherwise, as determined
by Landlord from time to time during the Lease Term.
14. Graphics and Signage.
All letters and numerals on doors or other signs on the
Premises shall be in the standard form of graphics for the
Building, and no others shall be used or permitted without
Landlord's prior written consent. Furthermore, Tenant shall not
place signs on or in the Premises which are visible from outside
the Premises. Tenant's name and suite number shall be included by
Landlord on the lobby directory for the Building and at the main
entry for the Premises.
15. Parking.
During the Lease Term, Tenant shall have, without charge,
the non-exclusive right to use, in common with Landlord, other
tenants of the Building, and their respective guests and
invitees, the automobile parking areas, driveways, and footways
located on the Land. Notwithstanding the terms and provisions in
the immediately preceding sentence, (i) Tenant and Tenant's
guests and invitees shall not, at any given time, be entitled to
use more than five (5) parking spaces for each 1,000 square feet
of Premises Net Usable Area, and (ii) Landlord shall have the
right during the Lease Term to reserve parking spaces on the Land
for the exclusive use of other tenants in the Building, provided
the reservation of such spaces for the exclusive use of other
tenants in the Building does not have the effect of denying
Tenant the non-exclusive use of five (5) parking spaces for each
1,000 square feet of Premises Net Usable Area. If Landlord
provides reserved parking spaces to another tenant of the
Building, then Tenant shall also be entitled to reserved parking
spaces and the number of such parking spaces reserved for Tenant
shall be in the same ratio to Tenant's Premises Net Usable Area
as the number of reserved spaces provided to such other tenant
bears to such other tenant's Premises Net Usable Area. To the
extent spaces are existing and available, Tenant's reserved
spaces shall be located in the same general proximity to the
Building as the reserved spaces for such other tenant or within
fifty (50) feet of such other reserved spaces. Such reserved
parking spaces are included in and are not in addition to the
total number of parking spaces made available to Tenant pursuant
to this Paragraph 15.
16. Compliance with Laws.
Tenant agrees to comply with all applicable laws,
ordinances, rules and regulations of any governmental entity or
agency having jurisdiction over the Premises. Without limiting
the generality of the foregoing, in the event the Premises must
be modified or any other action relating to the Premises must be
undertaken in the future to comply with the Americans With
Disabilities Act or any similar federal, state or local statute,
law, or ordinance, the responsibility for such modification or
action (including the payment of all costs incurred in connection
therewith) shall belong to Tenant. If the Common Areas or the
Building Exterior Common Areas must be modified or any other
action relating to the Common Areas or the Building Exterior
Common Areas must be undertaken in the future to comply with the
Americans With Disabilities Act or any similar federal, state or
local statute, law, or ordinance and if such modification or
action is required because of (i) any special or unique use or
activity in the Premises or (ii) the performance of any
alterations within the Premises, the responsibility for such
modification or action (including the payment of all costs
incurred in connection therewith) shall belong to Tenant. Except
as provided in the immediately preceding sentence, in the event
the Common Areas or the Building Exterior Common Areas must be
modified or any other action relating to the Common Areas or the
Building Exterior Common Areas must be undertaken in the future
to comply with the Americans With Disabilities Act or any similar
federal, state or local statute, law, or ordinance, the
responsibility for such modification or action (including the
payment of all costs incurred in connection therewith, subject to
the terms and provisions of this Lease relating to the pass-
through of Basic Costs) shall belong to Landlord. Any such
expenses included in Basic Costs shall be amortized over the
useful life of the improvement. Landlord covenants that the
Building and the Premises shall be designed and constructed to be
in compliance with the Americans With Disabilities Act and other
applicable laws, codes and regulations effective as of the date a
building permit is issued for the Building and the Premises.
17. Building Rules and Regulations.
Tenant shall comply with the rules and regulations
applicable to the Building and the Building Exterior Common Areas
(the "Rules and Regulations") adopted and altered by Landlord
from time to time and shall cause all of its agents, employees,
invitees and visitors to do so; all changes to the Rules and
Regulations will be sent by Landlord to Tenant in writing. The
initial Rules and Regulations, which have been reviewed and
approved by Tenant, are attached hereto as Exhibit E. The
provisions of this Lease shall control any conflicting provisions
of the Rules and Regulations.
18. Entry by Landlord.
Tenant agrees to permit Landlord and Landlord's agents and
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 and without notice) to inspect the same, to show the
Premises to prospective purchasers, mortgagees, tenants or
insurers, to install or maintain Check Meters and other devices
to determine if Tenant's electrical usage is in excess of design
loads and capacities, and 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. Such repairs,
alterations and additions shall be scheduled and handled so as
not to unreasonably interfere with Tenant's use of the Premises.
19. Assignment and Subletting.
(a) Tenant shall not assign this Lease or sublet all or any
part of the Premises or make any other transfer of its interest
in the whole or any portion thereof, directly or indirectly, at
any time during the Lease Term without the prior written consent
of Landlord, which such consent shall not be unreasonably
withheld or delayed. Any attempted assignments, subleases or
other transfers by Tenant in violation of the terms and
conditions of this Paragraph 19(a) shall be null and void. The
above notwithstanding, Landlord's consent shall not be required
in connection with an assignment or sublet of the Premises or any
part thereof to any successor of Bairnco Corporation resulting
from a merger, consolidation, sale or acquisition of the entire
business of Bairnco Corporation or to an entity which is a
subsidiary or parent of Bairnco Corporation or is otherwise
affiliated with Bairnco Corporation (a "Special Transfer"),
provided notice of same is furnished to Landlord and information
regarding such merger, consolidation, sale or acquisition
reasonably requested by Landlord is furnished, and provided
further that the then current use of the Premises shall continue
with no major demolition of improvements to the Premises. In the
event that Tenant desires at any time to assign this Lease or
sublet all or any part of the Premises, Tenant shall submit to
Landlord at least fifteen (15) business days prior to the
proposed effective date of the assignment or sublease, in
writing, (i) a request for permission to assign or sublet setting
forth the proposed effective date which shall be no less than
thirty days after the sending of such notice; (ii) the name of
the proposed subtenant or assignee or other party; (iii) the
nature of the business to be carried on in the Premises after the
assignment or sublet; (iv) the terms and provisions of the
proposed assignment or sublet; and (v) current financial
statements of the proposed subtenant or assignee; and such
additional information that Landlord may reasonably request in
order to make a reasoned judgment.
(b) If Tenant requests Landlord's consent to an assignment
of this Lease or subletting of all or part of the Premises, or
any other transfer of its interest(s), Landlord shall have the
option (without limiting Landlord's other rights hereunder) of
terminating this Lease with respect to the portion of the
Premises subject to the proposed assignment, subletting or
transfer upon fifteen (15) business days' notice and of dealing
directly with the proposed assignee, subtenant or transferee. If
Landlord should fail to notify Tenant in writing of its decision
within a fifteen (15) business day period after Landlord is
notified in writing of the proposed assignment, sublease or other
transfer, Landlord shall be deemed to have refused to consent to
such assignment, sublease or transfer and to have elected to keep
this Lease in full force and effect. If Landlord notifies Tenant
that Landlord has refused to consent to such assignment or
sublease and that Landlord intends to terminate this Lease with
respect to the portion of the Premises subject to the proposed
assignment or sublease, then Tenant shall have the right to be
exercised within ten (10) days thereafter to withdraw its
proposed assignment or sublease in which event the Lease shall
not be terminated as to such portion of the Premises. This
subparagraph (b) shall not apply to a Special Transfer as
described above.
(c) Landlord hereby reserves the right to condition
Landlord's consent to any assignment or sublet upon Landlord's
receipt from Tenant of a written agreement, in form and substance
acceptable to Landlord, pursuant to which Tenant shall pay over
to Landlord fifty percent (50%) of all rent or other
consideration received by Tenant from any such subtenant or
assignee, either initially or over the term of the assignment or
sublease, in excess of the Rent called for hereunder, or, in case
of the sublease of a portion of the Premises, in excess of such
rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for
hereunder are taken into account, and after taking into account
Tenant's reasonable expenses incurred in connection with such
subletting or assignment. This subparagraph (c) shall not apply
to a Special Transfer as described above.
(d) If Tenant assigns, sublets or makes any other transfer
of all or any portion of its interest(s) hereunder, Tenant named
in this Lease shall remain directly and primarily responsible for
the faithful performance and observance of all of the covenants
and obligations on Tenant's part to be performed in this Lease.
No assignment or subletting shall affect the continuing primary
liability of Tenant hereunder (which, following any assignment or
sublet, shall be joint and several with the assignee or
subtenant), and Tenant shall not be released from performing any
of the terms, covenants and conditions of this Lease.
(e) Any assignee or subtenant hereunder shall be bound by
and shall comply with all of the terms and provisions in this
Lease, including, without limitation, the use restriction set
forth in Paragraph 4 herein. As a condition to the effectiveness
of any assignment that is permitted hereunder, the assignee
shall, by an instrument in writing, assume and agree to perform
(for the express benefit of Landlord) the terms hereof; and as a
condition to the effectiveness of any sublease that is permitted
hereunder, the subtenant shall acknowledge in writing (for the
express benefit of Landlord) the existence of this Lease and
shall covenant not to do or permit to be done anything that would
constitute a breach hereof.
(f) Landlord's consent to any one assignment, sublease or
other transfer hereunder shall not waive the requirement of its
consent to any subsequent assignment, sublease or other transfer
as required herein.
20. Liens.
Tenant will not permit any mechanic's lien(s) or other liens
to be placed upon the Premises, the Building or the Land and
nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, express or
implied, by inference or otherwise, to any person for the
performance of any labor or the furnishing of any materials to
the Premises, or any part thereof, nor as giving Tenant any
right, power or authority to contract for or permit the rendering
of any services or the furnishing of any materials that would
give rise to any mechanics' or other liens against the Premises,
the Building or the Land. In the event any such lien is attached
to the Premises, the Building or the Land, then, in addition to
any other right or remedy of Landlord, Landlord may, but shall
not be obliged to, discharge the same. Any amount paid by
Landlord for any of the aforesaid purposes shall be reimbursed by
Tenant to Landlord on demand as Additional Rent.
The interest of Landlord shall not be subject to liens for
improvements made by Tenant in and to the Premises. Tenant shall
notify every contractor making such improvements of the
provisions set forth in the preceding sentence of this paragraph.
The parties agree, should Landlord so request, to execute,
acknowledge and deliver without charge to Tenant, a Short Form
Lease in recordable form in accordance with Chapter 713, Florida
Statutes containing a confirmation that the interest of Landlord
shall not be subject to liens for improvements made by Tenant to
the Premises.
21. Property Insurance.
Landlord shall maintain fire and extended coverage insurance
on the Building and the Premises, such policy(ies) to cover
Landlord's interest in the Building and Premises for not less
than the full replacement value thereof. Such insurance shall be
maintained at the expense of Landlord (as a part of Basic Costs),
and payments for losses thereunder shall be made solely to
Landlord or the mortgagees of Landlord relative to the Land and
the Building (collectively, "Mortgagees"; each, a "Mortgagee"),
as their respective interests shall appear. Tenant shall
maintain, at its expense, in an amount equal to full replacement
cost, fire and extended coverage insurance on all of its personal
property, including removable trade fixtures, located in the
Premises. Tenant shall, at Landlord's request from time to time,
provide Landlord with current certificates of insurance
evidencing Tenant's compliance with the terms and requirements of
this Paragraph 21 and Paragraph 22 herein. All policies required
to be maintained by Tenant under this Paragraph 21 and Paragraph
22 herein shall contain a provision whereby the insurer is not
allowed to cancel, fail to renew or change materially the
coverage without first giving thirty (30) days prior written
notice to Landlord. Tenant shall also 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.
22. Liability Insurance.
Tenant and Landlord shall, each at its own expense, maintain
a policy or policies of comprehensive general liability insurance
(occurrence coverage) with respect to the respective activities
of each on the Land and in the Building with the premiums thereon
fully paid on or before the due date, issued by and binding upon
an insurance company authorized to conduct such business in the
State of Florida. Such comprehensive general liability insurance
to be maintained by Tenant and Landlord under this Paragraph 22
shall afford minimum protection of not less than $1,000,000
combined single limit coverage of bodily injury, property damage
or combination thereof; and such comprehensive general liability
insurance to be maintained by Tenant shall name Landlord as an
additional insured. Such insurance coverage maintained by Tenant
also shall include, without limitation, personal injury and
contractual liability coverage for the performance by Tenant of
the indemnity agreements set forth in this Lease. Landlord shall
not be required to maintain insurance against thefts within the
Premises or the Building or on the Land.
23. Indemnities.
Landlord shall not be liable to Tenant, or to 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 Land, the
Building Exterior Common Areas, the Building or the Premises
under the invitation of Tenant or arising out of a default by
Tenant in the performance of its obligations hereunder. Tenant
hereby indemnifies and holds Landlord harmless from all liability
and claims for any such damage or injury. Landlord hereby
indemnifies and holds Tenant harmless from all liability and
claims for any damage or injury resulting from any act or
omission of Landlord that constitutes negligence or willful
misconduct.
24. Waiver and Waiver of Subrogation Rights.
Anything in this Lease to the contrary notwithstanding
(including, without limitation, Paragraph 23 herein), Landlord
and Tenant each hereby waive any and all rights of recovery,
claim, action, or cause of action, against the other, its agents,
officers, or employees, for any loss or damage that may occur to
the Premises or a part thereof, or any improvements thereto, or
any personal property of such party therein, by reason of fire,
the elements, or any other cause(s) which are insured against
under the terms of the standard fire and extended coverage
insurance policies referred to in Paragraph 21 herein, regardless
of cause or origin, including negligence of the other party
hereto, its agents, officers, or employees. All insurance
policies carried with respect to Paragraph 21 herein, if
permitted under applicable law, shall contain a provision whereby
the insurer waives, prior to loss, all rights of subrogation
against Landlord and Tenant.
25. Casualty Damage.
If the Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged
that substantial alteration or reconstruction of the Building
shall be required (whether or not the Premises shall have been
damaged by such casualty) or in the event any Mortgagee should
require that the insurance proceeds payable as a result of a
casualty be applied to the payment of the mortgage debt or in the
event of any material uninsured loss to the Building, Landlord
may, at its option, terminate this Lease by notifying Tenant in
writing of such termination within ninety (90) days after the
date of such casualty. If, by reason of such casualty, the
Premises are rendered untenantable in some material portion, and
the amount of time required to repair the damage is reasonably
determined by Landlord to be in excess of one hundred eighty
(180) days from the date upon which Landlord is required to
determine whether to terminate this Lease, then Tenant shall have
the right to terminate this Lease by giving Landlord written
notice of termination within thirty (30) days after the date
Landlord delivers Tenant notice that the amount of time required
to repair the damage has been determined by Landlord to be in
excess of one hundred eighty (180) days. If Landlord (or Tenant,
if applicable) does not thus elect to terminate this Lease,
Landlord shall commence and proceed with reasonable diligence to
restore the Building to substantially the same condition as
existed immediately prior to the occurrence of the casualty,
except that Landlord's obligation to restore shall not exceed the
scope of the work required to be done by Landlord in originally
constructing the Building Shell Improvements and installing the
Tenant Improvements in the Premises. Landlord shall not be
obligated to restore the Building Shell Improvements or the
Premises if the cost of the restoration work required under this
Lease and all other leases of space in the Building exceeds the
insurance proceeds actually received by Landlord as a result of
the casualty, in which event Tenant shall have the right to
terminate this Lease. When the Tenant Improvements have been
restored by Landlord, Tenant shall restore Tenant's furniture and
equipment. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting
in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall
allow Tenant a fair diminution of Rent during the time and to the
extent the Premises are untenantable and until a Certificate of
Occupancy is issued following repair of the Premises. If the
Premises or any other portion of the Building is damaged by fire
or other casualty resulting from the fault or negligence of
Tenant or any of Tenant's agents, employees, or invitees, the
rent hereunder shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost of the
repair and restoration of the Building caused thereby to the
extent such cost and expense are not covered by insurance
proceeds.
26. Condemnation.
If the whole or substantially the whole of the Building or
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 or Premises is thus taken
or sold and the remaining portion of the Building can no longer
be operated as a multi-tenant office building on a financially
sound basis, in Landlord's sole opinion, or if any Mortgagee
should require that the condemnation proceeds payable as a result
of such taking or sale be applied to the payment of the mortgage
debt, Landlord (whether or not the Premises are affected by the
taking or sale) 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 or Premises is taken by the condemning authority. If
this Lease is not so terminated upon any such taking or sale and
if a portion of the Premises is affected thereby, the Base Rental
payable hereunder shall be diminished by an equitable amount, and
Landlord shall, restore the Building and the Premises to
substantially their former condition, except Landlord's
obligation to restore shall not exceed the scope of the work
required to be done by Landlord in originally constructing the
Building Shell Improvements and installing the Tenant
Improvements. Landlord shall not be obligated to restore the
Building Shell Improvements or the Tenant Improvements if the
cost of the restoration work required under this Lease and all
other leases of space in the Building exceeds the amount received
by Landlord for such taking, in which event Tenant shall have the
right to terminate this Lease. All amounts awarded upon a taking
of any part or all of the Building or the Premises shall belong
to Landlord, and Tenant shall not be entitled to and expressly
waives all claims to any such compensation, but Tenant shall not
be barred from making its own claim to the condemning authority
provided such claim does not reduce the compensation payable to
Landlord.
27. 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 Force Majeure Matter. Nor shall
Landlord be liable for any damage or inconvenience which may
arise through repair or alteration of any part of the Building or
Premises, except as is the result of Landlord's negligence or
willful misconduct.
28. Events of Default/Remedies.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant fails to pay any
installment of Base Rental or Additional Rent when due and such
failure continues for more than five (5) days after Tenant is
given written notice of such failure (provided, however, Tenant
shall not be entitled to such notice and cure period more than
twice in any calendar year during the Lease Term); (ii) Tenant
fails to comply with any provision of this Lease (other than
clauses (iii), (iv), (v), (vi) and (vii) in this Paragraph
28(a)), all of which terms, provisions and covenants shall be
deemed material and such failure continues for more than thirty
(30) days after Tenant is given written notice of such failure or
Tenant fails to commence to cure the default within said thirty
(30) day period and diligently pursue the cure to completion
(provided such 30-day notice and cure period for non-monetary
defaults shall be decreased or dispensed with, as reasonably
required, in cases of emergency or in circumstances where such
failure will result in a default by Landlord under other leases
of space in the Building); (iii) the leasehold estate of Tenant
is taken on execution or other process of law in any action
against Tenant; (iv) Tenant abandons any substantial portion of
the Premises and fails to pay Rent for the Premises; (v) Tenant
becomes 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's notifies
Landlord that it knows such a petition will be filed or Tenant
notifies Landlord that it expects such a petition to be filed; or
(vii) a receiver or trustee is appointed for Tenant's leasehold
interest in the Premises or for all or a substantial part of the
assets of Tenant. Provided, however, and notwithstanding the
foregoing provisions in this Paragraph 28(a), Tenant shall not be
entitled to any notice and cure period in connection with
Tenant's obligation to vacate the Premises at the end of the
Lease Term.
(b) Upon the occurrence under this Lease of any event or
events of default by Tenant, whether enumerated in Paragraph
28(a) herein or not, Landlord shall have the option to pursue any
one or more of the following remedies: (i) terminate this Lease,
in which event Tenant shall immediately surrender the Premises to
Landlord; (ii) terminate Tenant's right to occupy the Premises
and re-enter and take possession of the Premises (without
terminating this Lease) and relet or attempt to relet the
Premises for the account of Tenant and Landlord shall not be
deemed to have thereby accepted a surrender of the Premises, and
Tenant shall remain liable for all Base Rental, Additional Rent
or other sums due under this Lease and for all damages suffered
by Landlord because of Tenant's breach of any provision of this
Lease; (iii) enter upon the Premises and do whatever Tenant is
obligated to do under the terms of this Lease, and Tenant agrees
to reimburse Landlord on demand for any expense which Landlord
may incur in effecting compliance with Tenant's obligations under
this Lease, and Tenant further agrees that Landlord shall not be
liable for any damages resulting to Tenant from such action; (iv)
accelerate and declare the entire remaining unpaid Base Rental
and Additional Rent for the balance of the Lease Term (reduced to
present value) to be immediately due and payable forthwith, and
may, at once, take legal action to recover and collect the same;
and (v) exercise all other remedies and seek all damages
available to Landlord at law or in equity, including, without
limitation, injunctive relief of all varieties.
In the event Landlord elects to re-enter or take possession
of the Premises after Tenant's default, Tenant hereby waives
notice of such re-entry or repossession and of Landlord's intent
to re-enter or take possession. Landlord may, without prejudice
to any other remedy which it may have for possession or
arrearages in rent, expel or remove Tenant and any other person
who may be occupying said Premises or any part thereof. In
addition, the provisions of Paragraph 31 herein shall apply with
respect to the period from and after the giving of notice of such
termination to Tenant. All of Landlord's remedies under this
Lease shall be cumulative and not exclusive. Forbearance by
Landlord to enforce one or more of the remedies herein provided
upon an event of default shall not be deemed or construed to
constitute a waiver of such default or an election of remedies.
(c) Any installment of Base Rental and any Additional Rent
not paid within ten (10) days following the date when due and
payable shall bear interest from the date due until paid at the
lesser of (i) eighteen percent (18%) per annum or (ii) the
maximum lawful contract rate per annum.
(d) This Paragraph 28 shall be enforceable to the maximum
extent not prohibited by applicable law, and the unenforceability
of any portion thereof shall not thereby render unenforceable any
other portion. To the extent any provision of applicable law
requires some action by Landlord to evidence or effect the
termination of this Lease or to evidence the termination of
Tenant's right of occupancy, Tenant and Landlord hereby agree
that notice, in writing only and delivered in accordance with
Paragraph 37 herein, shall be sufficient to evidence and effect
the termination therein provided for.
(e) Landlord shall be in default hereunder in the event
Landlord has not begun and pursued with reasonable diligence the
cure of any failure of Landlord to meet its obligations hereunder
within thirty (30) days of receipt by Landlord of written notice
from Tenant of the alleged failure to perform. Except as
otherwise provided in Paragraph 3 herein, in no event shall
Tenant have the right to terminate or rescind this Lease or
otherwise withhold or abate Base Rental or Additional Rent as a
result of Landlord's default as to any covenant or agreement
contained in this Lease or as a result of the breach of any
promise or inducement hereof, whether in this Lease or elsewhere.
Tenant hereby waives such remedies for default hereunder and
Tenant's remedies for default by Landlord hereunder shall be
limited to a proceeding for damages and/or injunction. In
addition, Tenant hereby covenants that, prior to the exercise of
any such remedies, it will give the Mortgagee(s) who then hold(s)
a mortgage on the Building (if Landlord has notified Tenant of
the name and address of such Mortgagee) the same notice and time
period as Landlord to cure any default by Landlord under this
Lease.
29. Security Deposit. - Intentionally Deleted.
30. Peaceful Enjoyment.
Tenant shall, and may peacefully have, hold, and enjoy the
Premises against Landlord and all persons claiming by and through
or under Landlord for the Lease Term, subject to the other terms
hereof, provided 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
Landlord's interest hereunder.
31. Holding Over.
If Tenant remains in possession of the Premises or any part
thereof after the expiration or earlier termination of this
Lease, whether with or without Landlord's acquiescence, Tenant
shall be deemed a tenant at will. In the event of any such
holding over by Tenant after the expiration or other termination
of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession
pursuant to Paragraph 28(b) herein, Tenant shall, throughout the
entire holdover period, pay Base Rental equal to 150% of the Base
Rental in effect immediately before the holdover period began,
together with all applicable Additional Rent which would have
been applicable had the Lease Term continued through the period
of such holding over by Tenant. Tenant shall also remain liable
for any and actual damages suffered by Landlord as a result of
any holdover without Landlord's unequivocal written acquiescence.
No holding over by Tenant after the expiration of the Lease Term
shall be construed to extend the Lease Term.
32. Subordination to Mortgage.
Tenant accepts this Lease subject and subordinate to any
mortgage, deed of trust, or other lien presently existing or
hereafter arising upon the Premises, the Building and/or the
Land, and to any renewals, modifications, refinancings and
extensions thereof, but Tenant agrees that any such Mortgagee
shall have the right (without seeking or obtaining Tenant's
consent) at any time to subordinate such mortgage, deed of trust
or other lien to this Lease. Tenant agrees to cooperate and
execute and deliver such further instruments subordinating this
Lease or attorning to the holder of any such liens as Landlord
may request within fifteen (15) days of the date of such request.
Landlord shall provide a non-disturbance agreement from Mortgagee
to Tenant if a mortgage is placed on the Building.
33. Estoppel Certificate.
Tenant agrees that it will, from time to time upon request
by Landlord and within fifteen ( 15) days of such request,
cooperate and execute and deliver to such persons as Landlord
shall request an estoppel certificate in recordable form
certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease 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, to the best knowledge of Tenant, 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. In the event
that Tenant should fail to execute any such estoppel certificate
promptly as requested, Tenant hereby irrevocably constitutes
Landlord as its attorney-in-fact to execute such estoppel
certificate in Tenant's name, place and stead, it being agreed
that such power is one coupled with an interest. Landlord shall
likewise provide an estoppel certificate if requested by Tenant.
34. Attorneys' Fees.
In the event either party defaults in the performance of any
of the terms of this Lease and the other party employs
attorney(s) in connection therewith, the defaulting party agrees
to pay the prevailing party's reasonable attorneys' and
paralegals' fees (calculated at such attorneys' reasonable and
customary hourly rates and without regard to the amount in
controversy) and costs of litigation, whether at the trial level,
on appeal or in any bankruptcy or administrative proceedings.
35. 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 to pursue
any other remedy in this Lease provided.
36. Personal Liability.
The liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease shall be limited to the
equity of Landlord in the Building and the Land, and Tenant
agrees to look solely to Landlord's equity in the Building and
the Land for recovery of any judgment from Landlord, it being
intended that neither Landlord nor the shareholders, parents,
affiliates, partners, members, or owners of Landlord shall be
personally liable for any judgment or deficiency.
37. Notices.
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, postpaid and
certified or registered 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 prepaid
telegram or overnight delivery service (e.g., Federal Express),
or by sending the same by facsimile (with the original being sent
by one of the other permitted means), addressed to the party to
be notified at the applicable address stated in the Lease Summary
or such other address, notice of which has been given to the
other party pursuant to this Paragraph 37. Notice deposited in
the mail in the manner hereinabove described shall be effective
from and after the expiration of three (3) calendar days after it
is so deposited. Notice by personal delivery shall be effective
on the day of personal delivery. Notice by prepaid telegram or
overnight delivery service shall be effective on the first
business day after said notice is sent. Notice by facsimile shall
be effective on the day sent by facsimile (provided the original
is sent by one of the other permitted means).
38. 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 enforced to the fullest extent
permitted by law, notwithstanding the invalidity of any other
term or provision hereof.
39. Recordation.
Tenant agrees not to record this Lease; provided, however,
Landlord shall execute and deliver a memorandum of this Lease, in
recordable form, and suitable to provide record notice of this
Lease, if so requested by Tenant.
40. Governing Law and Venue.
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 and venue for
any actions initiated by Landlord or Tenant shall be in Seminole
County.
41. Force Majeure.
Whenever a period of time is herein prescribed for the
taking of any action by Landlord or Tenant, 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 any
condition, matter or circumstance beyond the reasonable control
of such party (collectively, "Force Majeure Matters"; each, a
"Force Majeure Matter"), including, without limitation, the
following: strikes; defaults or failures to perform by
contractors or subcontractors; unavailability of materials;
lockouts; acts of God; governmental restrictions, war or enemy
action or invasion; civil commotion; insurrection; riot; mob
violence; malicious mischief or sabotage; fire or any other
casualty; adverse weather conditions or unusual inclement
weather; a condemnation; failure of a governmental
instrumentality to act in a timely fashion; any litigation or
other legal proceeding which delays the approval of plans or the
issuance of any grading or building permit for construction,
including, without limitation, the issuance of an injunction
enjoining such approval and/or issuance, as the case may be; any
law, order or regulation of any governmental, quasi-governmental,
judicial or military authority; or other similar cause. Force
Majeure Matters shall not excuse or delay payment due hereunder.
Without limiting the generality of the foregoing, in the event a
Force Majeure Matter affects Landlord's construction and delivery
obligation(s) relative to the Premises under this Lease, at
Landlord's option, the Commencement Date shall be extended by the
same number of days as the number of days of delay caused by such
Force Majeure Matter on the critical path of completing such
construction and delivery obligation(s).
42. Time of Performance.
Except as expressly otherwise herein provided, with respect
to all required acts of Tenant, time is of the essence of this
Lease.
43. Transfers by Landlord.
Landlord shall have the right to transfer and assign, in
whole or in part, all 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, except those obligations of Landlord with
respect to which a default exists as of the effective date of
such transfer or assignment.
44. Commissions.
Landlord warrants and represents to Tenant that Landlord has
not engaged or contracted with any person, firm or entity to
serve or act as a broker, agent or finder, other than Broker (if
any), for the purpose of leasing the Premises or in regard to
this Lease. Tenant warrants and represents to Landlord that
Tenant has not engaged, contracted with or dealt with any person,
firm or entity (other than Broker, if any) to serve or act as a
broker, agent or finder, for the purpose of leasing the Premises
or in regard to this Lease. Landlord agrees to be solely
responsible for the payment of any commission to Broker (if any)
relating to this Lease pursuant to a separate agreement between
Landlord and Broker (if any). Tenant shall and does hereby
indemnify and hold harmless Landlord from and against any claim
for any consulting fee, finder's fee, commission, or like
compensation, including reasonable attorneys' fees in defense
thereof, payable in connection with this Lease and asserted by
any party arising out of any act or agreement by Tenant,
excluding the commission payable by Landlord to Broker (if any)
as described above.
45. Effect of Delivery of this Lease.
Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and such delivery does not constitute an
offer to Tenant or an option in favor of Tenant. This Lease shall
not be effective until an original executed by both Landlord and
Tenant is delivered to and accepted by Landlord.
46. Real Estate Investment Trust.
During the Lease Term, should a real estate investment trust
become Landlord hereunder, all provisions of this Lease shall
remain in full force and effect except as modified by this
Paragraph 46. If Landlord in good faith determines that its
status as a real estate investment trust under the provisions of
the Internal Revenue Code of 1986, as heretofore or hereafter
amended, will be jeopardized because of any provision of this
Lease, Landlord may request reasonable amendments to this Lease
and Tenant will not unreasonably withhold, delay or defer its
consent thereto, provided that such amendments do not (a)
increase the monetary obligations of Tenant pursuant to this
Lease or (b) in any other manner adversely affect Tenant's
interest in the Premises.
47. Hazardous Materials.
(a) Throughout the Lease Term, Tenant shall not
knowingly cause, permit or allow any Hazardous Materials to be
placed, stored, dumped, dispensed, released, discharged, used,
sold, transported, or located on or within any portion of the
Premises, the Building or the Land by itself or its servants,
agents, employees, contractors, subcontractors, licensees,
assignees or subtenants; provided, however, minor quantities of
Hazardous Materials may be used or stored in the Premises for
cleaning purposes only or in connection with the use of office
equipment and the normal operation of Tenant's office only, so
long as such quantities and the use thereof are permitted by or
are exempt from applicable governmental regulation. Tenant agrees
to give Landlord prompt written notice of any discovery,
discharge, release or threatened discharge or threatened release
of any Hazardous Materials on or about the Premises, the Building
or the Land. Tenant agrees to promptly clean up any Hazardous
Materials which are placed in the Premises or on the Land by
Tenant or its servants, agents, employees, contractors,
subcontractors, licensees, assignees or subtenants and to
remediate and remove any such contamination relating to the
Premises, the Building and/or the Land, as appropriate, at
Tenant's cost and expense, in compliance with all applicable
laws, ordinances, rules and regulations then in effect and to
Landlord's satisfaction, at no cost or expense to Landlord.
Additionally, Tenant hereby agrees to indemnify and hold harmless
Landlord and Landlord's partners, officers, directors, members,
affiliates, employees and agents from and against all loss, cost,
damage, liability and expense (including attorneys' fees and
expenses) arising from or relating to any Hazardous Materials
(other than those permitted above) which are placed in the
Premises or the Building or on the Land by Tenant or its
servants, agents, employees, contractors, subcontractors,
licensees, assignees or subtenants. For purposes of this Lease,
the term "Hazardous Materials" means such substances as give rise
to remediation requirements, duties or obligations under the
Clean Air Act, the Clean Water Act, the Federal Water Pollution
Control Act of 1976, the Comprehensive Environmental Response,
Compensation Liability Act of 1980, the Toxic Substances Control
Act and any other state or federal environmental statutes,
ordinances, rules or regulations.
(b) The terms and provisions in this Paragraph 47 shall
survive the termination or earlier expiration of this Lease.
48. Landlord's Right of Relocation. Intentionally deleted.
49. Evidence of Authority.
If requested by Landlord, Tenant shall furnish appropriate
legal documentation evidencing the valid existence and good
standing of Tenant and the authority of any parties signing this
Lease to act for Tenant. By signing this Lease on Tenant's
behalf, the signatory for Tenant hereby represents the truth of
such facts to Landlord.
50. Survival of Obligations.
Notwithstanding any term or provision in this Lease to the
contrary, any liability or obligation of Landlord or Tenant
arising during or accruing with respect to the Lease Term shall
survive the expiration or earlier termination of this Lease,
including, without limitation, obligations and liabilities
relating to (i) rent payments, (ii) the condition of the Premises
and the removal of Tenant's property, and (ii) indemnity and hold
harmless provisions in this Lease.
51. Confidentiality.
Tenant agrees, on behalf of Tenant and Tenant's employees,
agents, contractors, consultants, partners, affiliates, assignees
and subtenants, not to disclose the terms of this Lease or the
results of any audit of Landlord's books and records under this
Lease to any third party except (i) legal counsel to Tenant, (ii)
any assignee of Tenant's interest in this Lease or any subtenant
of Tenant relative to the Premises (or any portion thereof),
(iii) as required by applicable law or by subpoena or other
similar legal process, or (iv) for financial reporting purposes.
52. Contractual Landlord's Lien. - Intentionally deleted.
53. Rent a Separate Covenant. Tenant shall not for any
reason withhold or reduce Tenant's required payments of Basic
Rent and other charges provided in this Lease, it being expressly
understood and agreed contractually by the parties that the
payment of Basic Rent, Additional Rent, and other charges
provided under this Lease is a contractual covenant by Tenant
that is independent of the other covenants of the parties under
this Lease.
54. Radon.
As required by Florida Statutes, 404.056(6) 1995, Landlord
notifies Tenant as follows:
"RADON GAS: Radon is a naturally occurring radioactive gas,
that when it has accumulated in a building in sufficient
quantities, it may present health risk 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."
55. Miscellaneous Provisions.
The entire agreement, intent and understanding between
Landlord and Tenant is contained in the provisions of this Lease
and the exhibits attached hereto and any stipulations,
representations, promises or agreements, written or oral, made
prior to or contemporaneously with this Lease shall have no legal
or equitable effect or consequence unless reduced to writing
herein or in the exhibits attached hereto. This Lease may not be
modified except by a written instrument by the parties hereto.
The terms "Landlord" and "Tenant" and all pronouns relating
thereto shall be deemed to mean and include corporations,
partnerships and individuals as may fit the context, and the
masculine gender shall be deemed to include the feminine and the
neuter, and the singular number, the plural.
56. Renewal Option.
Tenant shall have the option to renew this Lease for one
Renewal Term of five (5) years at the then current market rental
rate for renewal leases of tenants having uses and improvement
requirements similar to Tenant in comparable office buildings in
the northern suburbs of Orlando, Florida, as such market rental
rate is reasonably determined by agreement between Landlord and
Tenant. Tenant shall exercise such renewal option by written
notice to Landlord given not less than nine (9) months prior to
the end of the initial Lease Term. If Landlord and Tenant,
acting in good faith, have not, within thirty (30) days after
such exercise, executed a renewal amendment to this Lease which
amendment states, inter alia, the rental rate applicable during
the Renewal Term, then such renewal exercise shall be deemed
cancelled and withdrawn unless Tenant agrees to use the three
appraiser method described below. In such event, Landlord and
Tenant shall each select an MAI appraiser, who, in turn, shall
select a third MAI appraiser. The three appraisers shall
determine by majority action the market rental rate for renewal
leases of tenants having uses and improvement requirements
similar to Tenant in comparable office buildings in the northern
suburbs of Orlando, Florida. The determination of the three
appraisers shall be binding on Landlord and Tenant and shall
establish the rental rate during the Renewal Term. Landlord and
Tenant shall each bear the cost of the appraiser they selected
and shall share equally the cost of the third appraiser. Tenant
may exercise its option to renew and Tenant's exercise of that
option shall be effective only if, at the time of Tenant's
exercise and on the commencement date of Renewal Term, this Lease
is in full force and effect and Tenant is not in default under
this Lease beyond any applicable cure period; provided that
Tenant must, in any event, cure any then existing default within
its applicable cure period or such exercise shall, at Landlord's
option, be deemed ineffective and null and void in its entirety.
Upon exercise of the renewal option and determination of the
rental rate, the Lease shall be extended for the Renewal Term.
57. WAIVER OF JURY TRIAL.
THE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER
ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF
THE PREMISES AND/OR BUILDING AND/OR CLAIM OR INJURY OR DAMAGE.
IN THE EVENT LANDLORD COMMENCES ANY PROCEEDINGS TO ENFORCE THIS
LEASE OR THE LANDLORD/TENANT RELATIONSHIP BETWEEN THE PARTIES OR
FOR NON-PAYMENT OF BASIC RENT OF ANY NATURE WHATSOEVER, OR
ADDITIONAL MONIES DUE LANDLORD FROM TENANT UNDER THIS LEASE,
TENANT WILL NOT INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE OR
DESCRIPTION IN ANY SUCH PROCEEDINGS. IN THE EVENT TENANT MUST,
BECAUSE OF APPLICABLE COURT RULES, INTERPOSE ANY COUNTERCLAIM OR
OTHER CLAIM AGAINST SUCH PROCEEDING THE LANDLORD AND TENANT
COVENANT AND AGREE THAT, IN ADDITION TO ANY OTHER LAWFUL REMEDY
OF LANDLORD UPON MOTION OF LANDLORD, SUCH COUNTERCLAIM OR OTHER
CLAIM ASSERTED BY TENANT SHALL BE SEVERED OUT OF THE PROCEEDINGS
INSTITUTED BY LANDLORD AND, IF NECESSARY, TRANSFERRED TO A COURT
OF DIFFERENT JURISDICTION, AND THE PROCEEDINGS INSTITUTED BY
LANDLORD MAY PROCEED TO FINAL JUDGMENT SEPARATELY AND APART FROM
AND WITHOUT CONSOLIDATION WITH OR REFERENCE TO THE STATUS OF EACH
COUNTERCLAIM OR ANY CLAIM ASSERTED BY TENANT.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease in multiple original counterparts as of the day and year
first above written.
Signed, sealed and delivered LANDLORD
in the presence of:
CRESCENT RESOURCES, INC.,
a South Carolina corporation
/s/ Brandee Barnhill By: /s/ Robert J. Holmes, Jr.
Print Name: Brandee Barnhill Name: Robert J. Holmes
/s/ Donna Hughes Title: Regional Vice President
Print Name: Donna Hughes
TENANT:
BAIRNCO CORPORATION,
a Delaware corporation
/s/ Paula H. Godbee By: /s/ James W. Lambert
Print Name: Paula H. Godbee Name: James W. Lambert
/s/ Larry C. Maingot Title: Corporate Controller
Print Name: Larry C. Maingot
EXHIBIT A
Description of Land
All that certain tract or parcel of land lying and being in
the City of Lake Mary, Seminole County, Florida, and being more
particularly described as follows:
SECTION 7, TOWNSHIP 20 SOUTH, RANGE 30 EAST
THE CITY OF LAKE MARY, SEMINOLE COUNTY, FLORIDA
A PORTION OF SECTION 7, TOWNSHIP 20 SOUTH, RANGE 30 EAST,
SEMINOLE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS: BEGIN AT THE CENTER OF SECTION 7, TOWNSHIP 20 SOUTH,
RANGE 30 EAST, SEMINOLE COUNTY, FLORIDA AND RUN N 8940'59"E,
213.49 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF
PRIMERA BOULEVARD, PRIMERA PHASE II, ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 53, PAGES 52 THROUGH 54 OF THE
PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, SAID POINT BEING ON A
CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 773.02 FEET, A
CHORD OF 142.57 FEET AND A CHORD BEARING OF S 0650'37"W; THENCE
RUN SOUTHWESTERLY ALONG SAID CURVE AND WESTERLY RIGHT-OF-WAY LINE
142.77 FEET THROUGH A CENTRAL ANGLE OF 1034'55" TO THE END OF
SAID WESTERLY RIGHT-OF-WAY LINE AND THE BEGINNING OF THE WESTERLY
RIGHT-OF-WAY LINE OF PRIMERA BOULEVARD, PRIMERA PHASE I,
ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 49, PAGES
88 THROUGH 91 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA,
SAID POINT BEING ON A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS
OF 773.02 FEET, A CHORD OF 59.92 FEET AND A CHORD BEARING OF
S 1421'20"W; THENCE RUN SOUTHWESTERLY ALONG SAID CURVE AND
WESTERLY RIGHT-OF-WAY LINE 59.94 FEET THROUGH A CENTRAL ANGLE OF
426'33" TO A POINT OF COMPOUND CURVATURE OF A CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 346.19 FEET, A CHORD OF 280.92
FEET AND A CHORD BEARING OF S 4030'50"W; THENCE RUN SOUTHWESTERLY
ALONG SAID CURVE AND WESTERLY RIGHT-OF-WAY LINE 289.26 FEET
THROUGH A CENTRAL ANGLE OF 4752'27" TO A POINT OF TANGENCY;
THENCE RUN S 6427'07"W ALONG SAID WESTERLY RIGHT-OF-WAY LINE,
32.40 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 805.02 FEET, A CHORD OF 167.68
FEET AND A CHORD BEARING OF S 7613'03"W; THENCE RUN SOUTHWESTERLY
ALONG SAID CURVE AND WESTERLY RIGHT-OF-WAY LINE 330.63 FEET
THROUGH A CENTRAL ANGLE OF 2331'55" TO A POINT OF REVERSE
CURVATURE ON A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF
519.98 FEET, A CHORD OF 167.54 FEET AND A CHORD BEARING OF
S 7842'51"W; THENCE RUN SOUTHWESTERLY ALONG SAID CURVE AND
WESTERLY RIGHT-OF-WAY LINE 168.27 FEET THROUGH A CENTRAL ANGLE OF
1832'30"; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY LINE RUN
N 0912'05"W, 505.18 FEET; THENCE RUN S 8940'59"W, 559.42 FEET;
THENCE RUN N 0019'01"W, 35.00 FEET TO A POINT ON THE NORTH LINE
OF THE SOUTHWEST 1/4 OF SAID SECTION 7; THENCE RUN N 8940'59"E
ALONG THE NORTH LINE OF THE SOUTHWEST 1/4 OF SAID SECTION 7,
1153.66 FEET TO THE POINT OF BEGINNING CONTAINING 356347.77
SQUARE FEET (8.1806 ACRES).
A-1
EXHIBIT B
Designation of Premises
Graphic display of property
B-1
EXHIBIT C
Construction of Improvements
1. Building Shell Improvements. Landlord, at Landlord's sole
cost, shall complete or has completed the following as part
of the Building Shell Improvements:
2' x 2' ceiling grid installed at 9' above the
finished floor
2' x 2' tegular acoustical ceiling tile (to be
stacked on the floor in the Premises)
columns wrapped with drywall
high efficiency 2' x 4, 3 lamp fixtures with 18-
cell parabolic lenses and lights at a ratio of one
fixture per 75 square feet of Premises Net Usable Area
(to be stacked on the floor in the Premises)
low pressure and medium pressure duct work
interior VAV boxes installed with thermostats at
the rate of approximately one (1) per 2,665 usable
square feet
perimeter VAV boxes installed to perimeter slot
diffusers at the rate of approximately one (1) per
2,190 usable square feet
Building standard fire sprinkler system (in
accordance with applicable code requirements), with
heads turned up
demising walls: Landlord shall pay for the cost of
the demising walls between the Premises and the Common
Areas and Tenant shall pay for one-half of the cost of
the demising walls between the Premises and other
tenant space in the Building
blinds for exterior windows
2. Preparation and Approval of Tenant Improvements Plans and
Specifications. As soon as reasonably practicable following the
Lease Date, Landlord shall proceed to have Landlord's architect
prepare a draft of the Tenant Improvements Plans and
Specifications and shall deliver a complete copy of the Tenant
Improvements Plans and Specifications together with an itemized
construction cost proposal (the "Budget") to Tenant for Tenant's
review and approval. Tenant shall review the draft of the Tenant
Improvements Plans and Specifications and Budget and shall notify
Landlord in writing within five (5) business days after Tenant's
receipt of same as to whether Tenant approves the Tenant
Improvements Plans and Specifications and Budget; and if Tenant
does not approve the Tenant Improvements Plans and Specifications
and Budget, such written notice from Tenant to Landlord shall
provide Tenant's specific and detailed comments and suggestions
which, if incorporated in the Tenant Improvements Plans and
Specifications would render the Tenant Improvements Plans and
Specifications and Budget acceptable to Tenant. Landlord and
Tenant shall cooperate with one another in good faith to reach
agreement regarding the Tenant Improvements Plans and
Specifications and Budget as soon as practicable, and in any
event Tenant shall approve the Tenant Improvements Plans and
Specifications if they are prepared in accordance with and
consistent with the preliminary plans and specifications which
are attached as Exhibit I to the Lease. Within fifteen (15) days
after the parties approve Tenant Improvement Plans and
Specifications, Landlord shall submit such plans to the City of
Lake Mary for issuance of a building permit. Any changes to the
approved Tenant Improvement Plans and Specifications and Budget
shall be documented by change order approved by Landlord and
Tenant. In the event Landlord and Tenant are unable, after
complying with the foregoing terms and provisions in this
Paragraph 2, to reach agreement regarding the Tenant Improvements
Plans and Specifications and Budget within fifteen (15) business
days after the date on which
C-1
Landlord initially delivers the draft of the Tenant Improvements
Plans and Specifications and
Budget to Tenant pursuant to this Paragraph 2 and until such time
as Landlord and Tenant succeed in reaching agreement relative to
the Tenant Improvements Plans and Specifications and Budget,
Landlord may terminate the Lease by giving written notice of such
action to Tenant.
EXHIBIT D
Cleaning and Janitorial Services
LANDLORD SHALL FURNISH CLEANING AND JANITORIAL SERVICES TO THE
PREMISES AS DESCRIBED BELOW:
DAILY (Monday - Friday):
Sweep, dry mop or vacuum, as appropriate, all
floor areas; remove material such as gum and tar which
has adhered to the floor.
Empty and damp wipe all ash trays, waste baskets
and containers, remove all trash from the leased
premises.
Dust all cleared horizontal surfaces with treated
dust cloth, including furniture, files, telephones,
equipment that can be reached without a ladder.
Spot wash to remove smudges, marks and
fingerprints from such areas that can be reached
without a ladder.
Clean water fountains, cafeteria tables and
chairs.
Damp mop all non-resilient floors such as terrazzo
and ceramic tile.
Clean freight and passenger elevator cabs and
landing doors.
Clean mirrors, soap dispensers, shelves, wash
basins, exposed plumbing, dispenser and disposal
container exteriors, damp wipe all ledges, toilet
stalls and toilet doors.
Clean toilets and urinals with detergent
disinfectants.
Furnish and refill all soap, toilet, sanitary
napkin and towel dispensers.
Spot clean carpet stains.
Wash glass in Building directory, entrance doors
and frames.
Remove all litter from the parking lot and
grounds.
WEEKLY:
Dust vertical blinds and louvers.
Spot wash interior partition glass and door glass
to remove smudge marks.
Sweep all stairs areas.
D-1
Dust all baseboards.
Vacuum or brush all fabric covered chairs.
MONTHLY:
Scrub and recondition resilient floor areas.
Wash all stairwell landings and treads.
Wash all interior glass both sides.
QUARTERLY:
High dust all horizontal and vertical surfaces not
reached by nightly cleaning.
Vacuum all ceiling and wall air supply and exhaust
diffusers and grills.
Wash and polish vertical terrazzo and marble
surfaces.
Spot clean carpeted areas.
SEMI-ANNUALLY:
Vacuum drapes, cornices and wall hangings.
Dust all storage areas and shelves and contents.
Damp wash diffusers, grills, and other such items.
ANNUALLY:
Strip and refinish all resilient floors.
Wash all building exterior glass both sides.
Clean light fixtures, reflectors, globes, diffusers and
trim.
Wash walls in corridors, lounges, classrooms,
demonstration areas, cafeterias, break rooms,
washrooms.
Clean all vertical surfaces not attended to during
nightly, weekly, quarterly or semi-annually cleaning.
Landlord will provide a day porter for use throughout the
Building on business days, Monday through Friday.
D-2
EXHIBIT E
Rules and Regulations
1. Sidewalks, doorways, vestibules, halls, stairways, and
similar areas shall not be obstructed nor shall refuse,
furniture, boxes or other items be placed therein by any tenant
or its officers, agents, servants, and employees, or be used for
any purpose other than ingress and egress to and from premises in
the Building, or for going from one part of the Building to
another part of the Building. Canvassing, soliciting and peddling
in the Building are prohibited.
2. Plumbing, fixtures and appliances shall be used only
for the purposes for which constructed, and no unsuitable
material shall be placed therein.
3. No signs, directories, posters, advertisements, or
notices shall be painted or affixed on or to any of the windows
or doors, or in corridors or other parts of the Building, except
in such color, size, and style, and in such places, as shall be
first approved in writing by Landlord in its discretion. However,
the prohibition in the immediately preceding sentence shall not
limit or restrict any tenant's right to maintain within the
premises occupied by such tenant any signs, directories, posters,
advertisements, or notices so long as such items are not visible
from the exterior of the premises occupied by such tenant or from
the Common Areas of the Building. Building standard suite
identification signs will be prepared by Landlord at each
tenant's expense. Landlord shall have the right to remove all
unapproved signs without notice to any tenant, at the expense of
the responsible tenant.
4. No tenant shall do, or permit anything to be done, in
or about the Building, or bring or keep anything therein, that
will in any way increase the rate of fire or other insurance on
the Building, or on property kept therein or otherwise increase
the possibility of fire or other casualty.
5. Landlord shall have the power to prescribe the weight
and position of heavy equipment or objects which may overstress
any portion of the floor. All damage done to the Building by the
improper placing of such heavy items will be repaired at the sole
expense of the responsible tenant.
6. Each tenant shall notify the Building manager when
safes or other heavy equipment are to be taken in or out of the
Building, and the moving shall be done after written permission
is obtained from Landlord on such conditions as Landlord shall
require.
7. All deliveries must be made via the service entrance
and service elevator, when provided, during normal working hours.
Landlord's written approval must be obtained for any delivery
after normal working hours.
8. Each tenant shall cooperate with Landlord's employees
in keeping such tenant's premises neat and clean.
9. Each tenant shall not cause or permit any improper
noises in the Building, allow any unpleasant odors to emanate
from the Premises, or otherwise interfere, injure or annoy in
E-1
any way other tenants or persons having business with them.
However, Landlord acknowledges that, if permitted by the
applicable lease, a tenant may operate a food services facility
within the premises of such tenant for the sole use and benefit
of the occupants of such premises and that such food services
facility may emit odors normally associated with the operation of
such on-site food services facilities.
10. No animals shall be brought into or kept in or about
the Building.
11. When conditions are such that a tenant must dispose of
crates, boxes, etc. on the sidewalk, it will be the
responsibility of such tenant to dispose of same prior to 7:30
a.m. or after 5:30 p.m.
12. No machinery of any kind, other than ordinary office
machines such as typewriters, information processing systems,
copy machines, communications equipment and calculators, shall be
operated in any premises in the Building without the prior
written consent of Landlord, nor shall any tenant use or keep in
the Building any inflammable or explosive fluid or substance
(including Christmas trees and ornaments), or any illuminating
materials. No space heaters or fans shall be operated in the
Building.
13. No motorcycles or similar vehicles will be allowed in
the Building.
14. No nails, hooks, or screws shall be driven into or
inserted in any part of the Building, except as approved by
Building maintenance personnel. Notwithstanding the foregoing, a
tenant may decorate the interior of such tenant's premises at
such tenant's sole discretion provided such decorations do not
impact the structural integrity of the Building and cannot be
seen from the exterior of the Building or from any Common Areas
of the Building.
15. Landlord has the right to evacuate the Building in the
event of an emergency or catastrophe.
16. No food and/or beverages shall be distributed from any
tenant's office without the prior written approval of the
Building manager. But a tenant may prepare coffee and similar
beverages and warm typical luncheon items for the consumption of
such tenant's employees and invitees. Furthermore, Landlord
acknowledges that, if permitted by the applicable lease, a tenant
may operate a food services facility within the premises of such
tenant for the sole use and benefit of the occupants of such
premises.
17. No additional locks shall be placed upon any doors
without the prior written consent of Landlord. All necessary keys
or access cards or codes shall be furnished by Landlord, and the
same shall be surrendered upon termination of the applicable
lease, and each tenant shall then give Landlord or Landlord's
agent an explanation of the combination of all locks on the doors
or vaults. Replacement keys or access cards or codes (i.e.,
replacements for keys or access cards or codes previously issued
by Landlord) shall be obtained only from Landlord, and Tenant
shall pay to Landlord (as Additional Rent, within thirty (30)
days after Tenant receives an invoice therefor) the actual costs
incurred by Landlord in obtaining and issuing replacement keys or
access cards or codes for keys or access cards or codes
previously issued.
E-2
18. Tenants will not locate furnishings or cabinets
adjacent to mechanical or electrical access panels or over air
conditioning outlets so as to prevent operating personnel from
servicing such units as routine or emergency access may require.
Cost of moving such furnishings for Landlord's access will be for
the responsible tenant's account. The lighting and air
conditioning equipment of the Building will remain the exclusive
charge of the Building designated personnel.
19. Each tenant shall comply with reasonable parking rules
and regulations as may be posted and distributed by Landlord from
time to time.
20. No portion of the Building shall be used for the
purpose of lodging rooms.
21. Prior written approval, which shall be at Landlord's
sole discretion, must be obtained for installation of window
shades, blinds, drapes, or any other window treatment of any kind
whatsoever. Landlord will control all internal lighting that may
be visible from the exterior of the Building and shall have the
right to change any unapproved lighting, without notice to the
responsible tenant, at the responsible tenant's expense.
22. No tenant shall make any changes or alterations to any
portion of the Building without Landlord's prior written
approval, which may be given on such conditions as Landlord may
elect. All such work shall be done by Landlord or by licensed
contractors and/or workmen.
E-3
EXHIBIT F
Special Stipulations
[NOT APPLICABLE]
The foregoing Special Stipulations are hereby incorporated into
and made a part of the Lease Agreement. In the event, however,
of a conflict between the terms of the Special Stipulations and
the terms of the Lease Agreement, the Special Stipulations shall
control.
Initial: RJH_______ (For Landlord)
Initial: JWL______ (For Tenant)
F-1
EXHIBIT G
GUARANTY OF LEASE AGREEMENT
[NOT APPLICABLE]
G-1
EXHIBIT H
Commencement Date Stipulation
Pursuant to that certain Lease Agreement (the "Lease)
between CRESCENT RESOURCES, INC. (the "Landlord") and Bairnco
Corporation (the "Tenant") dated as of May 17, 1999, for certain
premises in The Crescent at Primera, Building Four located at 300
Primera Boulevard, Lake Mary, Florida 32746, Landlord and Tenant
hereby stipulate and certify that:
1. The Commencement Date under the Lease is September,
and the expiration date of the Lease Term is August
31, 2009.
2. Tenant's obligation to pay Rent under the Lease
commenced on January 1, 2000.
The terms and provisions of this Commencement Date
Stipulation are hereby incorporated into the Lease and modify any
and all provisions to the contrary contained therein.
Executed under seal as of the 25th day of January, 2000.
TENANT:
BAIRNCO CORPORATION
a Delaware corporation
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP Finance
LANDLORD:
CRESCENT RESOURCES, INC.,
a South Carolina corporation
By: /s/ Robert J. Holmes, Jr.
Name: Robert J. Holmes, Jr.
Title: Vice President
H-1
EXHIBIT I
Preliminary Tenant Improvements Plans and Specifications
[TO BE PROVIDED]
I-1
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is
dated as of the 31 day of May, 1999, by and between CRESCENT
RESOURCES, INC., a South Carolina corporation (the "Landlord")
and BAIRNCO CORPORATION, a Delaware corporation (the "Tenant").
RECITALS
A. Landlord and Tenant entered into a certain Lease dated
as of May 17, 1999 (the "Lease") with respect to certain space
described therein as Suite 432 and located on the fourth floor of
the Crescent at Primera, Building Four.
B. The parties wish to change the Commencement Date
described in the Lease Summary to provide more time to obtain
bids for construction of the Tenant Improvements.
AMENDMENT
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, Landlord and Tenant do hereby
agree as follows:
1. Defined Terms; Recitals. Except as otherwise set
forth herein, all terms contained in this First Amendment shall
have the same meaning ascribed to them in the Lease. The
Recitals set forth above are true and correct.
2. Commencement Date. The Commencement Date
identified in the Lease Summary is hereby amended to September 1,
1999. The parties acknowledge that such Commencement Date is a
target date and that the actual Commencement Date of the Lease
shall be determined pursuant to Paragraph 3 of the Lease.
3. Binding Effect. The Lease, as modified by this
First Amendment, and all covenants, agreements, exhibits, terms
and conditions contained therein, shall remain in full force and
effect and is hereby ratified and confirmed. The provisions of
this First Amendment shall control any conflicting provisions of
the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
First Amendment as of the day and year first above written.
LANDLORD
CRESCENT RESOURCES, INC.
/s/ Brandee Barnhill By: /s/ Robert J. Holmes, Jr.
Witness Name: Robert J. Holmes
Title: Regional Vice President
TENANT
BAIRNCO CORPORATION
/s/ Paula H. Godbee By: /s/ James W. Lambert
Witness Name: James W. Lambert
Title: Corporate Controller
/s/ Larry C. Maingot
Witness
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (the "Second Amendment") is
dated as of the 31 day of August, 1999, by and between CRESCENT
RESOURCES, INC., a South Carolina corporation (the "Landlord")
and BAIRNCO CORPORATION, a Delaware corporation (the "Tenant").
RECITALS
A. Landlord and Tenant entered into a certain Lease dated
as of May 17, 1999 as amended by First Amendment dated May 31,
1999, (the "Lease") with respect to certain space described
therein as Suite 432 and located on the fourth floor of the
Crescent at Primera, Building Four.
B. Tenant desires to install two satellite communication
dishes on the Building and Landlord is willing to permit such
installation in accordance with the terms and conditions
described in this Second Amendment.
AMENDMENT
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, Landlord and Tenant do hereby
agree as follows:
1. Defined Terms; Recitals. Except as otherwise set
forth herein, all terms contained in this Second Amendment shall
have the same meaning ascribed to them in the Lease. The
Recitals set forth above are true and correct.
2. Telecommunications Equipment. Tenant shall have
the right to install and maintain on the roof of the Building or
in another location approved by Landlord two (2) satellite/
microwave communication antenna and related cabling (the
"Equipment") for the purpose of transmitting and receiving
telecommunication signals. The location, size, design, color and
style of the Equipment shall be subject to reasonable approval of
Landlord. Tenant shall comply with all ordinances, codes and
regulations regarding the Equipment and shall obtain all permits
required therefore. The cost of installation (including the cost
of Landlord's roofer or engineer to supervise roof penetrations),
operation, maintenance and removal of the Equipment shall be the
obligation of Tenant including the cost of repair for damage to
any portion of the Building caused by such installation,
operation, maintenance or removal. Upon the expiration of the
Lease Term or the earlier termination of this Lease, Tenant shall
promptly remove the Equipment and repair any portion of the
Building which was altered or damaged in any way in connection
with the installation, operation, maintenance or removal of the
Equipment. Tenant shall indemnify and hold Landlord harmless
from any and all damages, injury, loss, liability, costs or
claims resulting from the installation, operation, maintenance or
removal of the equipment, including any injury to person or
damage to the roof or any other part of the Building.
3. Binding Effect. The Lease, as modified by this
Second Amendment, and all covenants, agreements, exhibits, terms
and conditions contained therein, shall remain in full force and
effect and is hereby ratified and confirmed. The provisions of
this Second Amendment shall control any conflicting provisions of
the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Second Amendment as of the day and year first above written.
LANDLORD
CRESCENT RESOURCES, INC.
/s/ Brandee L. Barnhill By: /s/Robert J. Holmes, Jr.
Witness Name: Robert J. Holmes, Jr.
Title: Vice President
TENANT
BAIRNCO CORPORATION
/s/ Larry C. Maingot By: /s/ James W. Lambert
Witness Name: James W. Lambert
Title: Corporate Controller
/s/ Paula H. Godbee
Witness