EXHIBIT 10.32
L E A S E
This is a Lease, dated February 18, 2003, between LAKEWOOD RANCH
PROPERTIES, L.L.C, A FLORIDA LIMITED LIABILITY COMPANY, hereinafter referred to
as "Landlord," and TOLLGRADE COMMUNICATIONS, INC., a Pennsylvania corporation,
hereinafter referred to as "Tenant."
In consideration of the rents to be paid hereunder, the mutual promises
and covenants contained herein, and for other good and valuable consideration,
Landlord and Tenant hereby covenant and agree as follows:
1. DEMISE OF PREMISES. Landlord does hereby lease to Tenant, and
Tenant does hereby rent from Landlord, the real property located on the first
floor of the office building with a street address of 7020 Professional Parkway,
Sarasota, Florida 34240, and as depicted on EXHIBIT "A" annexed hereto, together
with all improvements located thereon and all of Landlord's easements and
privileges appertaining to or used in connection therewith, hereinafter referred
to as the "Premises." Tenant shall have the exclusive use of the Premises during
the term of the Lease. For purposes of this Lease, the term "Property" shall
mean the entire building located at the above address (including the Premises)
as well as all land and improvements adjoining same. The legal description of
such of the Property is described as EXHIBIT "B", which is attached hereto and
by this reference is incorporated herein and made a part hereof.
2. TERM. The initial term of this Lease shall commence as soon as
(A) a Certificate of Occupancy is issued for Tenant at the Premises, and (B) the
first shall occur of the following (i) Tenant takes possession of the Premises,
or (ii) April 28, 2003. The initial Lease term shall terminate on midnight on
the last day of the calendar month which falls five (5) full years from the
month in which the initial term of this Lease commences. By way of example, if
the initial Lease term commences in mid-April 2003, then the initial Lease term
will expire on the last day of the month in April 2008.
Provided that this Lease is not previously terminated by either party or
automatically, as hereinafter provided, by operation of law or otherwise, then
Tenant shall have the option to renew this Lease for an additional term of five
(5) years, subject to the same terms and conditions as in this Lease, including
the possible annual rental increases based upon increases as specified in
Section 3 below. Accordingly, the rental rate for the first year of the renewal
term will equal the rental rate for the last year of the initial five (5) year
term as increased by the Consumer Price Index adjustment described in Section 3
below. For clarification purposes, the base rental, for each year under this
Lease, whether initial term or renewal
term, shall be adjusted from the prior year, based upon the Consumer Price Index
formula described in Section 3 hereof.
Tenant, in order to exercise the above option to renew, shall give to
Landlord or Landlord's successors and assigns, written notice of the exercising
of said option, on or before one hundred eighty (180) days prior to the
expiration of the then existing Lease term. Time is of the essence of this
provision.
3. RENT. Tenant agrees to pay to Landlord, as annual base rent
hereunder, the sum of $13.25 per square foot of rentable area of the Premises.
The precise rentable area of the Premises is hereby agreed to be 22,122 square
feet. Base rent shall be paid in consecutive monthly installments of Twenty-Four
Thousand Four Hundred Twenty-Six Dollars and Thirty-Eight Cents ($24,426.38) on
or before the first (1st) day of every calendar month during the term of the
Lease, commencing on the commencement date of the Lease term as determined in
accordance with Section 2 hereof. All rent payable under this Lease shall be
paid without deduction or offset. Rent for partial months shall be prorated.
Base rent shall be in addition to any tax imposed by the State of Florida on
rentals. Base rent plus sales tax shall be paid to Landlord C/O JOHN A. MORAN,
22 SOUTH LINKS AVENUE, SUITE 300, SARASOTA, FLORIDA 34236, or such other address
as Landlord shall hereafter designate in writing. The covenant of Tenant to pay
rent hereunder shall be independent of any other covenant contained in this
Lease.
Notwithstanding anything stated herein to the contrary, the parties
agree that the base rent for the first three (3) full calendar months of the
Lease term shall be as follows:
First (1st) full calendar month $ 4,426.38 plus tax
Second (2nd) full calendar month $ 4,426.38 plus tax
Third (3rd) full calendar month $14,426.38 plus tax
In addition to the base rent, Tenant shall also be responsible for a pro
rata portion of the Common Area Maintenance (see item 4), which shall be paid by
Tenant as provided in this Lease. Tenant shall be responsible for all sales tax
payments on any rent payments made under this Lease.
Commencing on the First Anniversary Date of the first (1st) full
calendar month of this Lease and adjusted each Anniversary Date thereafter the
base rent hereunder shall be increased by the percentage, if any, of increase in
the Consumer Price Index as of such Anniversary Date over that which existed on
the commencement of the term of this Lease; provided, however, that said
increase shall in no event exceed three percent (3%) per annum during the
initial term (but such cap shall not apply to the renewal term). Such increase
shall be determined by Landlord who shall notify Tenant thereof, in writing, not
less than thirty (30) days in advance of each Anniversary Date, and such notice
shall include
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for Tenant's review, Landlord's calculations relating to any asserted increase.
Tenant shall pay the increased rental to the Landlord for the period of time
elapsing between the Anniversary Date and notice of such increase upon request
by Landlord. Thereafter the increase shall be payable equally with the regular
rental payments.
The term "Consumer Price Index" shall mean the Consumer Price Index as
now published by the U.S. Bureau of Labor Statistics under the caption: "United
States City Average for Urban Wage Earners and Clerical Workers All Items" or
any revision or equivalent thereof hereafter published by that Bureau, or, if
there ceases to be any such publication, then any substantially equivalent Price
Index generally recognized as authoritative, designated by Landlord.
In the event that Tenant does not pay the full base rental payment,
additional rental payment, or other payment due hereunder within five (5) days
of the due date, then a late payment penalty of five percent (5%) of the total
amount due shall be charged and shall be immediately due and payable. Landlord
is not obligated to accept any rental payment if all applicable or accrued late
charges are not paid. The extension of time or times for payment of any
installment or payment due hereunder or the acceptance by Landlord of any
payment other than as provided for herein shall not constitute a waiver or
release of the rights of Landlord to insist on having any or all of the said
payments of rent, late fee(s), or other payments due hereunder made in the
manner and at the time herein specified.
4. COMMON AREA MAINTENANCE.
4.1 Common Areas
Landlord shall make available within the Property such Common Areas as
Landlord in its sole discretion shall deem appropriate, subject to the
provisions of this Section 4.1. For purposes of this Lease, the term "Common
Areas" shall mean the pedestrian sidewalks, truckways, driveways, parking areas,
loading docks, hallways, lobby, corridors, delivery areas, elevators, ramps,
stairs, public restrooms and comfort stations, landscaped and planted areas, and
all other areas or improvements provided by Landlord for the convenience and use
of the tenants of the Property and their respective officers, employees, agents,
customers, contractors, subtenants, licensees, concessionaires and invitees, not
located within the Premises or other leased or leasable areas of the Property.
Landlord shall operate, manage, equip, light, repair and maintain said
Common Areas for their intended purposes in such manner as Landlord, in its sole
and absolute discretion, shall determine in conformity with prevailing standards
for similar space in the region of Sarasota, Florida, and Landlord reserves
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the right to change from time to time the size, location, nature and use of any
Common Area, to sell or lease any portion thereof and to make additional
installations therein and to move and remove the same and Landlord shall not be
subject to liability therefore nor shall Tenant be entitled to any compensation,
or diminution or abatement of rent, nor any such action be deemed an actual or a
constructive eviction of Tenant; provided, however, that Landlord shall not
materially diminish any service to Tenant or make any change that will
materially (a) diminish the area of the Property or the Premises; (b) interfere
with access to the Premises; (c) change the location of the entrances to the
Premises; (d) interfere with Tenant's quiet use and enjoyment of the Premises.
Any change by Landlord in the arrangement or location of all or any part of the
Common Areas shall be accomplished by Landlord within a reasonable period of
time.
The Common Area Maintenance (sometimes referred to herein as CAM
expenses), shall include all reasonable and customary costs and expenses paid or
incurred by Landlord in the operation, maintenance, servicing and management
(however, management fees shall not exceed rates generally paid to unaffiliated
third parties for management of similar space in the region of Sarasota,
Florida) of that portion of the Property not directly leased to Tenant as part
of this Lease, but which relates to the use of the Premises by Tenant and shall
also include the property located outside the air conditioned space of the
Premises; including but not limiting the generality of the foregoing, utilities
and water and sewer charges, grounds maintenance, window washing, air
conditioning repair and maintenance, security, pest control, elevator
maintenance and repair, fire sprinkler maintenance and repair, building
cleaning, painting, supplies, maintaining, repairing and replacing the roof,
parking lot maintenance and resurfacing, liability, casualty, and property
damage insurance, management fees, professional fees and administration expenses
relative to the operation of the building, real property taxes, property owners'
association fees, garbage and trash collection and removal, and such other
miscellaneous items which may be related in any way to the operation or
maintenance of the Premises and indoor property. For clarification purposes,
Tenant shall only be responsible for its pro rata share of any CAM expenses as
provided in Sections 4.3 and 4.4 hereof.
For purposes of identification, without limiting the specific items
which would otherwise be considered Common Area Maintenance, the parties hereby
incorporate EXHIBIT "C" and by this reference, such Exhibit is hereby
incorporated herein and made a part hereof. In the event that Landlord
experiences expenses that are not specified on EXHIBIT "C" annexed hereto, but
which are customarily treated as Common Area Maintenance expenses, with respect
to leases between third parties for similar space in the region of Sarasota,
Florida, Landlord shall so notify Tenant, such notification to include the type
and
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extent of such expense, and such expense shall be added to Common Area
Maintenance expense charges and include in EXHIBIT "C" as an item of same.
With regard to any items of capital improvement which relate to the
Common Areas, Landlord shall reserve and plan for the cost of such items, as
part of the common area maintenance charges to Tenant.
In addition, Landlord and Tenant agree that the cost of replacement of
any heating, ventilating and/or air conditioning equipment or component thereof
serving the Premises shall be considered a capital improvement and shall be
included in the planning for Common Area Maintenance charges and shall be
reserved by Landlord. Accordingly, Landlord assumes that such equipment is under
the standard five (5) year Manufacturers Warranty for major components.
4.2 Use of Common Areas
During the term of this Lease only, Tenant and its officers, employees,
agents, customers, contractors, subtenants, licensees, concessionaires and
invitees shall have the non-exclusive right, in common with Landlord and all
others to whom Landlord has or may hereafter grant rights, to use the Common
Areas as designated from time to time by Landlord, subject to such reasonable
rules and regulations as Landlord may from time to time impose, including the
designation of specific areas in which cars owned by Tenant, its permitted
officers, employees, agents, customers, contractors, subtenants, licensees,
concessionaires and invitees must be parked. If Landlord shall designate such
parking areas and if any car of Tenant or the foregoing related parties is
parked in any other portion of the Property, Tenant hereby authorizes Landlord
to tow or cause any such car to be towed from the Property, and agrees to
reimburse Landlord for the cost thereof upon demand, and to otherwise indemnify
and hold Landlord harmless with respect thereto. Tenant agrees after notice
thereof to abide by such rules and regulations and to use its best efforts to
cause its permitted officers, employees, agents, customers, contractors,
subtenants, licensees, concessionaires and invitees to conform thereto. Landlord
may at any time close temporarily any Common Area to make repairs or changes, to
prevent the acquisition of public rights in such areas and to discourage parking
that does not conform hereto, and Landlord shall not be subject to liability
therefore nor shall any such action be deemed an actual or constructive eviction
of Tenant. Landlord may do such other acts in and to the Common Areas as in its
judgment may he desirable to improve the convenience thereof, subject to the
provisions of this Section 4.2. Tenant shall not at any time interfere with the
rights of Landlord and other tenants of the Property, its and their officers,
employees, agents, customers, contractors, subtenants, licensees,
concessionaires and invitees, to use any part of the parking areas and other
Common Areas. Neither Tenant
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nor Tenant's officers, employees, agents, customers, contractors, subtenants,
licensees, concessionaires or invitees may solicit business in the parking or
other Common Areas or distribute any handbills or other advertising matter in
such areas or place any such handbills or advertising matter in or on any
automobiles parked therein without Landlord's prior written consent.
Landlord reserves the right to grant to third persons the non-exclusive
right to cross over and use in common with Landlord and all tenants of the
Property the Common Areas as designated from time to time by Landlord.
4.3 Charge for Common Areas
Tenant's pro rata share of the Common Areas costs shall be the portion
of such costs which the floor area of the Premises bears to the gross leasable
area in the building in which the Premises are located. Tenant shall pay to
Landlord, in the manner provided in 4.4 (immediately following) Tenant's pro
rata share of the Common Area maintenance costs. Accordingly, since the rentable
area of the Premises is 22,122 square feet and the total rentable area of the
building is 38,644 square feet, then Tenant's pro rata portion is equal to
57.25% of such total common area costs.
4.4 CAM Expenses
Tenant shall pay to Landlord, during the calendar year 2003, the sum of
$3.50 per square foot of the Premises leased by Tenant, per year, payable in
advance in equal monthly installments, and pro rated by the number of months
(and days of any partial month) of calendar year 2003 that fall within the
initial term, without prior demand therefore, toward CAM Expenses. At the end of
each calendar year, Landlord shall determine Tenant's pro rata share of the CAM
Expenses actually incurred by Landlord during such period and such information
shall be provided to Tenant. Landlord shall maintain books and records of its
CAM Expenses in accordance with sound accounting and management practices and
such information shall be provided to Tenant along with the calculation, which
Landlord makes, for the preceding calendar year and Tenant shall have the right
to inspect such books and records at any time prior to the date that is one (1)
year after the expiration of the calendar year to which such books and records
pertain. In the event Tenant's pro rata share of such costs as determined by
Landlord exceeds the sums paid by Tenant during the calendar year in which such
costs are incurred, Tenant shall pay to Landlord the excess within fifteen (15)
days of Tenant's receipt of such request from Landlord. In such case, subsequent
monthly payments for Tenant's pro rata share of CAM Expenses shall be adjusted
so that the monthly payments for the next calendar year will be based on the
actual CAM Expenses incurred for the preceding calendar year. In no event will
Tenant's payments hereunder be less than that described in the first sentence of
this Section 4.4.
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If the Lease expires during a partial calendar year, Landlord shall bill
Tenant, not more than sixty (60) days prior to the expiration date of the Lease,
for its estimated pro rata share of CAM Expenses for the partial calendar year.
Tenant shall remit full payment to Landlord within fifteen (15) days of such
bill. If Tenant fails to remit such full payment to Landlord, Landlord, in its
sole discretion, may deduct the amount due from Tenant's security deposit
described in Section 6 hereof and be entitled to all other rights and remedies
hereunder for Tenant's default.
Notwithstanding anything stated in this Section 4.4 to the contrary,
Landlord agrees to provide to Tenant, during the first full year of this Lease
Term, a Five Thousand Dollar ($5,000.00) allowance to be applied towards the
routine preventative maintenance and repair of (A) HVAC system serving the
Premises, and (B) the plumbing system serving the Premises. Tenant agrees to
contact Landlord's property manager to coordinate and upon presentment of an
invoice to Tenant, Tenant agrees to promptly provide such invoice to Landlord
for payment after receiving Tenant's authorization and approval for payment.
5. NET LEASE. The parties acknowledge that this is a Triple Net
Lease and, as such, Tenant will keep the interior of the building on the
Premises, including plumbing, air conditioning and electrical service serving
the Premises, in good maintenance and repair and in clean and sanitary condition
during the term of this Lease and any renewal terms, at Tenant's sole expense,
and Tenant will comply with all governmental ordinances and directions of proper
public officers in connection with such maintenance during the term of this
Lease, and at the end of said term and/or any renewal term hereof, as the case
may be, will yield up the Premises to Landlord in good condition, ordinary wear
and tear excepted. Tenant further agrees to maintain all glass, including plate
glass and any special glass, store front or equipment, at its sole expense, and
shall replace the same with glass of the same size and quality in the event of
breakage or damage to any such glass.
Any janitorial service desired for the Premises, to the extent not
included in the CAM services for the building, shall be Tenant's sole
responsibility and cost.
EXHIBIT "C" details how certain expense items will be handled and by
this reference, said Exhibit is incorporated herein and made a part hereof.
6. SECURITY DEPOSIT. Landlord acknowledges the receipt of the sum
of Sixty-one Thousand Seven Hundred Fifty-Seven Dollars and Twenty-Five Cents
($61,757.25) as a deposit, without liability for interest thereon, as security
for the full and faithful performance by Tenant of each and every covenant and
agreement of this Lease. It is expressly agreed that the
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security deposit shall not be considered an advance payment of rent, nor is it a
measure of landlord's damages in the event of Tenant's default. In the event
that Tenant fails to materially comply with all of the terms and covenants of
this Lease, Landlord may, without prejudice to its other available remedies, use
the said security deposit to cure any defaults of Tenant, and Tenant shall
promptly upon demand, restore said security deposit to the amount which had been
on deposit prior to Landlord's use thereof. The full security deposit of Tenant
hereunder, or such portion that has not been applied by Landlord to cure
defaults of Tenant hereunder, shall be returned in full, without interest, to
Tenant upon the termination hereof.
7. EXCULPATION. Landlord shall not be liable for any injury to
Tenant's business or loss of income from it, or for damage to its personal
property or that of its officers, employees, agents, customers, contractors,
subtenants, licensees concessionaires and invitees or any other person in or on
the Premises, or for injury to such persons or parties, caused by casualty or
accident, regardless of the cause, unless the cause is due to the negligence or
willful misconduct of Landlord (including, for such purposes, parties acting at
or under the direction, on behalf of, or in furtherance of the interests of
Landlord) or a defect or condition in the Property or the Premises that is not
attributable to Tenant. Landlord shall not be liable to Tenant for any claim or
demand arising from any act or omission of any other tenant in the building in
which the Premises is located unless such act or omission is due to the
negligence or willful misconduct of Landlord.
8. SUBORDINATION. This Lease shall be subject and subordinate at
all times to the lien of any mortgage or mortgages, now encumbering the
Premises, or which Landlord may at any time place against the Premises. Tenant
agrees to execute such documents as may be reasonably requested by any mortgagee
to evidence the subordination contained herein, provided that such documents to
not materially diminish Tenant's rights under this Lease; and provided, however,
that as a condition of such subordination, the holder of such mortgage shall be
required to agree with Tenant that, notwithstanding the foreclosure of such
mortgage, Tenant's occupancy of the Premises shall not be disturbed so long as
Tenant is not in default hereunder and attorns to such Mortgagee and agrees to
perform all obligations owed to Landlord hereunder for the benefit of such
Mortgagee.
9. CONSTRUCTION OF IMPROVEMENTS. Landlord covenants with Tenant
that in the event of defects in construction or workmanship relative to any
improvements to be constructed pursuant hereto (including, without limitation,
pursuant to Section 41 hereof), Landlord shall use all reasonable efforts to
procure correction of the same by the contractor or subcontractor involved. In
no event, however, so long as the Premises are usable for their intended
purposes shall Tenant be
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entitled to withhold or abate rental pending correction of repairs.
10. ALTERATIONS BY TENANT. Landlord agrees that Tenant may make, at
its own expense, any minor non-structural alterations, repairs, replacements or
additions to the Property or the Premises, provided:
A. Any such alterations, repairs, replacements or additions shall
not lessen the value of the Property as it shall be at the commencement of this
Lease; and,
B. Tenant shall perform such alterations, repairs, replacements or
additions, in accordance with the statutes, ordinances, rules, regulations and
orders of all public or quasipublic authorities having jurisdiction thereof and
in accordance with the rules and regulations of the local board of Fire
Insurance Underwriters; and,
C. The Premises and the Property shall at all times be kept free
and clear of all mechanic's, materialmen's, labor or other liens or claims of
liens, and Tenant agrees to indemnify and save harmless Landlord from all
claims, demands and liability, including damage to person or property arising
out of or in connection with any such work; and,
D. At all reasonable times during the progress of such construction
work, Landlord or persons authorized by Landlord, shall have the right to go
upon the Premises for the purpose of inspecting the construction work then in
progress; and,
E. Tenant shall, at its sole expense, provide Landlord with a set
of as-built construction drawings within fifteen (15) days of completion of the
work provided for herein. Said as-built drawings shall become a part of this
Lease, as though attached hereto.
F. Tenant shall, at the expiration of the term of the Lease, and at
Tenant's expense, remove any partitions constructed by Tenant, upon request by
Landlord.
Tenant covenants and agrees with Landlord that Tenant shall not make any
material additions or alterations or structural changes in or about the
Premises, without first submitting plans and specifications thereof to Landlord,
and obtaining the written approval of Landlord. Upon obtaining such written
approval, Tenant may make such additions or alterations at Tenant's sole cost
and expense and subject to the obligations of subparagraphs A - F above,
inclusive, and providing that such additions or alterations do not damage the
building or endanger its support or stability. Such additions, alterations, or
improvements (except trade fixtures), put in at the expense of Tenant, as
aforesaid, shall be and become a part of the Premises and at the termination
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of this Lease, the same shall remain the property of Landlord. Tenant shall have
the right to remove Tenant's trade fixtures provided the walls, floors and
ceilings are restored to the condition existing on the date of commencement of
this Lease.
Nothing in the lease shall be construed to authorize Tenant or any
person dealing with or under Tenant, to charge the rents of the Premises or the
Property, or the interest of Landlord in the estate of the Premises, or any
person under and through whom Landlord has acquired its interest in the estate
of the Premises, with a mechanics' lien or encumbrance of any kind, and under no
circumstances shall Tenant be construed to be the agent, employee or
representative of Landlord in the making of any such alterations or improvements
to the Premises, but on the contrary, the right or power to charge any lien,
claim or encumbrance of any kind against Landlord's rents or the Premises or
said land is denied. In the event of the filing of any such lien, Tenant will
promptly pay same and take steps immediately to have same removed.
Landlord acknowledges that Tenant anticipates certain alterations to the
Premises and/or the Property prior to occupying the Premises, and that time is
of the essence in Tenant's commencement, performance and completion of such
alterations. Accordingly, Landlord shall fully cooperate with Tenant in
facilitating the expeditious commencement, performance and completion of such
alterations, including, without limitation, permitting Tenant access to the
Premises at all times, provided that Tenant undertakes appropriate security
measures to protect the Premises and the Property during any nonbusiness hours
that Tenant conducts such alterations, and provided that Tenant shall reimburse
Landlord for such additional expenses (including, without limitation, additional
electricity charges) as Landlord incurs therein.
11. USE OF PREMISES; QUIET ENJOYMENT. The Premises shall be used by
Tenant solely for its office and/or light manufacturing purposes, and related
uses. Tenant agrees that Tenant shall not sell or permit to be kept, used or
sold in or about the Premises any articles which may be prohibited by standard
form fire insurance policies. Tenant further agrees that Tenant will not use the
Premises, or permit the same to be used, for any unlawful, immoral, obnoxious or
offensive business or practice.
If and so long as Tenant pays the rent and other amounts due hereunder
and observes and performs all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the entire Lease
term, and Tenant shall have access to and use of the Premises at all times, 24
hours per day, 365 days per year.
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12. UTILITIES. Tenant shall pay for all electrical utility services
supplied to the Premises for the benefit of Tenant. Tenant acknowledges that, at
present, the Premises are not separately metered and, therefore, until such time
as it may become separately metered, Tenant shall pay its share of the monthly
electric bill for the Property, based upon square footage leased by Tenant
hereunder, in relation to the total square footage of the Property, as billed,
based upon the same 57.25% as set out in Section 4.3 above. This utility bill
shall be paid by Tenant to Landlord as additional rent, in addition to base rent
and Tenant's share of CAM Expenses. Landlord agrees that if it has not already
commenced the process to have the Premises separately metered for electric, that
it will do so within ninety (90) days of the commencement of the initial Lease
term. Landlord also agrees that if and to the extent that it does not separately
meter the spaces leased to other tenants of the Property, it shall collect from
such tenants their respective shares of the monthly electricity bill for the
Property, calculated in the manner provided above, and that the portions of the
electricity bill for the Property that are collectible from such tenants shall
not be included in CAM Expenses.
13. SIGNS. Tenant shall not have the right to construct, erect,
place, put, paint, maintain or control on the Premises any exterior sign or
signs, without first obtaining the written consent and approval of the same from
Landlord, and upon obtaining such consent and approval from Landlord, any such
sign or signs must comply with all rules, regulations, laws, statutes and
ordinances and/or applicable governmental authorities (including developmental
approval), and must be erected and maintained so as to not cause damage to the
building in which the Premises are located.
14. LICENSES, FEES AND TAXES. Tenant shall pay all state, county,
municipal, occupational or other licenses, fees and taxes which may be imposed
upon the Tenant's personal property located in the Premises as well as all taxes
and fees imposed on the business or occupation of Tenant conducted on or from
the Premises and Tenant shall pay any tax imposed by the State of Florida on
rentals. Landlord covenants to promptly pay when due all real property taxes
relating to the Premises.
15. OBSERVANCE OF LAWS, RULES AND REGULATIONS. With the exception of
any express provisions herein to the contrary, Tenant agrees, insofar as
applicable to Tenant's responsibility during the term of this Lease, to promptly
observe, comply with and execute at its own cost and expense all present and
future laws, rules, requirements, orders, directions, ordinances, and
regulations, of any and all governmental authorities or agencies, bureaus,
boards or officials, and of any Board of Fire Underwriters relating to the
Premises and/or the use thereof by Tenant (collectively, "Governmental
Requirements"), to the extent applicable to Tenant's manner of use of the
Premises. Tenant
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shall not have responsibility for the compliance of other parts of the Property
(including, without limitation, Common Areas) with Governmental Requirements,
except to the extent that changes to the Common Areas may be included in CAM
Expenses to the extent such changes are actually required to obtain compliance
with Governmental Requirements. Landlord hereby represents and warrants that on
the date of this Lease the Property (including, without limitation, the
Premises) complies with, and covenants that as a result of the performance of
the reconfigurations and improvements discussed in Section 41 hereof, shall
comply with, all Governmental Requirements, and that no actions or alterations
on the part of Tenant are necessary to obtain compliance with existing
Governmental Requirements.
Tenant, however, may contest, review or appeal from all Governmental
Requirements that would impose costs upon Tenant, provided Tenant shall, prior
to contesting the same, notify Landlord in writing of its intention to do so,
and shall guarantee to Landlord that its title or other interest in the Premises
shall not be divested nor shall there be any seizure, destruction, alteration or
other interference with the Premises by any governmental authority, and provided
that all such proceedings shall be promptly commenced by Tenant and diligently
prosecuted by Tenant at its expense to a speedy and final conclusion.
Tenant recognizes that the entire Premises and the building within which
the Premises are located is, and shall continue to be, designated as
"non-smoking." In the event a designated smoking area is established by
Landlord, outside of the building, then smoking will only be permitted in such
designated area. Such a provision, if promulgated by Landlord, will be
applicable to all tenants in the building. Tenant shall ensure its employees'
compliance with this provision.
16. INSURANCE. At all times subsequent-to the commencement date of
the term of this Lease and during the full term, Tenant shall keep the Premises
covered, at Tenant's sole cost and expense by the following types of insurance:
A. Fire and extended coverage multi-peril insurance in an amount
equal to 100% of the full replacement cost of Tenant's furniture, fixtures and
equipment located on the Premises. Any policy providing such coverage shall
contain the so-called special coverage all risk endorsement and the full
replacement cost endorsement.
B. Claims for personal injury or property damage under a policy of
general public liability insurance with limits of at least ONE MILLION DOLLARS
($1,000,000.00) in respect to bodily injury and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) for property damage.
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C. Flood insurance in an amount equal to 100% of the full
replacement cost of Tenant's furniture, fixtures and equipment located on the
Premises.
D. Plate glass insurance on the Premises in an amount sufficient to
cover the value of the plate glass located on the Premises for which Tenant has
maintenance responsibility pursuant to Section 5 hereof.
E. Against such other hazards and in such amounts as the holder of
any mortgage to which this Lease is subordinate may from time to time require.
All insurance required to be maintained by Tenant shall be effected by
valid and enforceable policies issued by insurers licensed to do business in the
State of Florida, countersigned by an agent licensed to do business in Florida
and of recognized responsibility satisfactory to Landlord. Within fifteen (15)
days after the commencement of the term of this Lease, Tenant shall promptly
deliver to Landlord true, correct and complete copies of such policies as
specified above and within fifteen (15) days after the premium of each such
policy shall become due and payable, such premium shall be paid by Tenant and
Landlord shall be furnished with satisfactory evidence of such payment.
Landlord shall procure and maintain during the Lease term, at its sole
cost and expense, insurance against all risks of direct physical loss, including
loss by fire, lightning, flood and other risks which at the time are included
under "extended coverage" endorsements, in amounts not less than one hundred
percent (100%) of the actual replacement value of the building in which the
Premises is located.
17. DESTRUCTION BY CASUALTY. If the Premises shall be substantially
damaged by fire or other casualty so as to be untenantable, the Landlord may
either (a) cancel this Lease and rent shall thereupon cease as of the date of
fire or such casualty; or (b) the Landlord may notify the Tenant in writing no
later than thirty (30) days after the fire or casualty that it intends to
restore the Premises and in the event the Landlord completes such restoration
within six (6) months from the date of fire or casualty, this Agreement shall
remain in full force and effect except that rental shall abate from the date of
such fire or casualty until the date when the Premises are ready for occupancy.
If the Premises are partially damaged by fire or other casualty to the
extent that there is a substantial and material interference with the use of the
Premises by the Tenant, rent shall be abated proportionately, and in the event
that the Landlord does not in its discretion complete the restoration of the
Premises within a reasonable time after the fire or other casualty, the Tenant
shall have the right to serve notice of
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cancellation of this Agreement effective thirty (30) days thereafter, during
which thirty (30) day period the Landlord may effect such restoration; provided
that if any such fire or other casualty occurs after the commencement of the
last three (3) months of the term herein demised, this Lease shall cease and
terminate on the date of such fire or other casualty.
Any rights of the Tenant pursuant to the provisions of this paragraph
shall be conditioned upon the fire or other casualty not having been caused by
willful negligence of the Tenant, its servants, agents or employees.
18. CONDEMNATION. If the whole of the Premises shall be taken or
condemned or purchased in lieu thereof by any competent authority for any public
or quasi-public use or purpose, then and in that event, the term of this Lease
shall cease and terminate from the time when the possession shall be required
for such use or purpose. The rent shall in such case be apportioned to the date
of such taking or purchase, as the case may be.
If any part of the Premises shall be taken or condemned or purchased in
lieu thereof by any competent authority for any public or quasi-public use or
purpose, then and in that event the Landlord shall so notify 'the Tenant in
writing and the Tenant shall have the option to cancel this Lease, giving the
Landlord written notice within twenty (20) days after receipt of such notice
from the Landlord; provided the balance of the Premises remaining cannot be
suitably used by the Tenant for its purposes heretofore stated. If the Tenant is
entitled to exercise said option to cancel and does so, then such canceling
shall be effective and the rent shall in such case be apportioned to the date of
such taking or purchase, as the case may be. In the event the Tenant is not
entitled to cancel the Lease of if it is entitled to do so but does not exercise
its option, said Tenant will be responsible for the rent as heretofore set forth
and apportioned to the date of such taking or purchase, i.e., after the taking
or purchase in lie thereof, the rent herein reserved shall be reduced and the
Tenant shall be required to pay that proportion of rent herein reserved as the
remaining leasable space of the Premises bears to the leasable space of the
Premises before such taking or purchase.
The Landlord and the Tenant hereby agree that any award or proceedings
resulting from a condemnation or sale in lieu thereof of the whole or any part
of the Premises shall belong solely to the Landlord, and that Tenant hereby
waives any right to make any claim therefore as a result of this Lease, except
that Tenant shall be entitled to any separate award made for Tenant's loss of
business, inconvenience, costs or loss of its leasehold interest in the
Premises.
19. ENTRY UPON PREMISES. Tenant agrees that Landlord may at any
reasonable time or times during the business hours of
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Tenant, enter upon the Premises for the purpose of inspecting the same, or to
make necessary repairs where Landlord is obligated to make such repairs or where
Tenant is delinquent in making repairs it is obligated to make; provided,
however, that Landlord shall not unreasonably interfere with Tenant's use and
enjoyment of the Premises.
Tenant agrees to permit Landlord and Landlord's agents, sixty (60) days
prior to the expiration of the term hereby granted, to place in one or more
conspicuous places upon the exterior of the Premises, signs advertising the
Premises "For Sale" or "For Lease/For Rent" provided that said signs shall not
obstruct the windows of or entrances to the Premises or otherwise interfere with
the operation of Tenant's business.
Tenant further agrees to allow Landlord to enter upon the Premises at
all reasonable times for the purpose of installing or servicing electrical
wiring, telephone cables, water and sewer lines, or other similar transmission
lines, which serve or cross the Premises for the purpose of rendering service to
the Premises or to adjacent property.
20. ASSIGNMENTS AND SUBLETTING. Tenant shall not sublet the Premises
or assign this Lease without the written consent of Landlord. Landlord agrees
not to withhold such consent unreasonably. No assignment or sublease nor
acceptance of rent from any assignee or subtenant, nor any other dealings of the
Landlord with any assignee or subtenant shall in any manner release Tenant from
the payment of rent and the due performance of all the terms, covenants and
conditions contained in this Lease.
In the event of a request by Tenant to Landlord to approve an
assignment, Tenant shall reimburse to Landlord the reasonable costs and value of
time invested by Landlord in determining the proposed assignee's acceptability,
which reimbursement shall be a condition of approval. Such reimbursement shall
also include any attorneys' fees, paralegals, fees, legal assistants' fees,
court costs and expenses incurred relative to the same. In no event shall such
costs for which Tenant shall be responsible exceed the sum of FIVE THOUSAND and
NO/l00 ($5,000.00) DOLLARS.
If Tenant shall assign or sublet the Premises, or any part thereof,
having first obtained Landlord's consent, at a rent in excess of the rent due
and payable by Tenant under the Lease, said excess rent shall be divided equally
between Landlord and Tenant after adjustment for all costs and expenses of such
sublease or assignment, including any time period that the Premises are vacant
between the occupancy of Tenant and Tenant's subtenant or assignee. Provided,
however, that Landlord shall not be responsible for any deficiency if Tenant
shall assign or sublet the Premises or any part thereof at a rent less than that
provided for herein.
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21. COVENANTS AS TO BREACH AND REMEDIES. If Tenant defaults in the
payment of any rent obligation or other payment when due under the terms of this
Lease, and such default in payment continues for a period of three (3) business
days after receipt by Tenant of written notice thereof (Tenant hereby
acknowledges that it shall be responsible for any late payment penalty provided
for in Section 3 hereof that is incurred during such cure period), or in the
event the Tenant abandons or repudiates this Lease in writing before the
expiration of the term hereof, or commits any other act or omission constituting
a breach of this Lease, and such breach continues for a period of thirty (30)
days after receipt by Tenant of written notice thereof, or if there is a
receiver appointed to take possession of all or substantially all of Tenant's
property or if there is a general assignment by Tenant for the benefit of
creditors, or if Tenant, either voluntarily or involuntarily, files for
protection under the United States Bankruptcy Act (except for an involuntary
filing that Tenant causes to be lifted or withdrawn within sixty (60) days), all
of which shall constitute breaches of this Lease by Tenant, then in such event,
the Landlord may at its sole and exclusive discretion:
A. Terminate this Lease, effective upon delivery of written notice
to Tenant, at which time Tenant shall pay to Landlord, and Landlord shall be
entitled to recover as liquidated damages, in order to cover the unknown costs
and expenses associated with termination and re-letting of the Premises and
because of the uncertainty of Landlord's ability to find a new tenant(s),
Landlord shall receive from Tenant, the then present value of the monthly rent,
including CAM Expenses, multiplied by six (6) months; and Landlord shall have
the immediate right to re-entry and may remove all persons and property from the
Premises, by summary legal process or otherwise; or
B. Elect to re-enter and retake possession of the Premises without
terminating this Lease, in which case Tenant shall not be deemed released from
its obligations to pay the rent and additional rent and other charges payable by
Tenant under the terms of this Lease, and all rent and other payments due
hereunder, including Tenant's pro rata share of CAM Expenses, reserved for the
entire remainder of the stated term of this Lease shall, at the Landlord's
option, be accelerated and become immediately due and payable by Tenant to
Landlord. In no event shall Landlord be required to postpone or delay its
lawsuit or action for damages or accelerated rent until the date when the term
of the Lease would have expired or until such rent would have become payable,
had the rent not been accelerated; provided however, that the option set forth
in this Paragraph B shall not diminish in any respect Landlord's duty to
mitigate its damages resulting from any breach giving rise to Landlord's
exercise of this option; or
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C. Elect to re-enter and retake possession of the Premises without
terminating this Lease, for the account of Tenant, and Landlord shall make good
faith efforts to re-let the Premises on the best terms, conditions and rent as
Landlord can reasonably obtain. In such case, Tenant shall be liable for
Landlord's reasonable incidental and consequential damages including but not
limited to, the cost to re-let the Premises, including but not limited to the
reasonable cost of remodeling and/or building out the Premises for new Tenant
(s), the reasonable costs of realtor, broker or other commissions paid in
connection with such reletting, all reasonable attorney's fees and costs
incurred in connection with removing Tenant and in collecting sums due Landlord
from Tenant and in negotiating and drafting the new leases(s), and for any
deficiency in rent to be received by Landlord as a result of any such re-letting
of the Premises, in which event the rents received by Landlord from such
re-letting shall be applied, first, to the payment of any costs and expenses
Landlord incurs in regaining possession of the Premises from Tenant, including
attorney's fees, second, to the payment of any costs and expenses of such
re-letting including but not limited to brokerage fees, costs of such
alterations and repairs as described above, and third, to the amount of rent and
other charges payable by Tenant under the terms of this Lease. Tenant shall be
liable to Landlord for any resulting deficiency in rents received after
application of the foregoing costs, compared with rents to be received under the
terms of this Lease.
No re-entry or taking of the Premises by Landlord shall be construed as
an election on its part to terminate this Lease, unless written notice of such
intention to terminate the Lease is given to Tenant, or the Premises are re-let,
or unless the termination is decreed by a court of competent jurisdiction.
Notwithstanding any such re-letting or other action by Landlord, as described
above, Landlord may at any time, elect to terminate this Lease for any breach,
in which case Landlord shall be entitled to recover its damages described in
paragraph A above.
In the event Tenant defaults or breaches any term or condition or
covenant of this Lease, and the Landlord is put to the necessity of employing an
attorney as a result of such default or breach, then Tenant agrees to pay
Landlord's reasonable attorney's fees, paralegal fees, legal assistant fees and
court costs and expenses associated with Tenant's default or breach, including
but not limited to all such fees and costs through trial and all appeals.
TENANT HEREBY EXPRESSLY WAIVES ANY RIGHT WHICH TENANT MAY HAVE UNDER
FLORIDA STATUTE SECTION 83.20 OR ANY SUCCESSOR OR REPLACEMENT STATUTE OR
AMENDMENT OR MODIFICATION TO SUCH STATUTE, OR UNDER ANY OTHER LOCAL, STATE OR
FEDERAL LAW, ORDINANCE, RULE OR REGULATION, TO RECEIVE ADVANCED NOTICE OF ANY
DEFAULT OR OTHER NOTICE OF ANY DEFAULT OR OPPORTUNITY TO CURE ANY DEFAULT.
TENANT'S RIGHTS IN THE EVENT OF DEFAULT SHALL BE LIMITED TO THE RIGHTS
(INCLUDING, WITHOUT LIMITATION, THE RIGHTS TO NOTICE AND
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CURE OF DEFAULTS) SET FORTH IN THIS LEASE.
Except as otherwise expressly set forth in this Lease, Tenant shall have
any and all remedies available to it at law or in equity for a breach of
Landlord hereunder.
22. ABANDONMENT. If Tenant shall remove all, or substantially all of
its personal property, fixtures and equipment from the Premises, without first
notifying Landlord, in writing, of its intention to continue the Lease, then
such removal of the personal property, fixtures and equipment shall be deemed to
be an abandonment by Tenant of the Premises, in the event the Premises remain in
such condition for seven (7) consecutive days. Such abandonment shall be an act
of default under this Lease and Landlord shall have all available remedies
provided herein for a default by the Tenant.
23. SURRENDER OF PREMISES. At the termination of this Lease, Tenant
shall quit, deliver and surrender up the Premises, as well as all keys to the
Premises, to Landlord in good, clean condition, reasonable wear and tear
accepted. Tenant may remove, and at the Landlord's request, shall remove, all of
its trade fixtures, equipment, personal property and signs provided that such
removal will not structurally injure the Premises. In the event Tenant fails to
remove any of Tenant's personal property, equipment, trade fixtures and signs
within ten (10) days after the termination of this Lease, said property shall,
at the option of Landlord, either be deemed abandoned and become the exclusive
property of Landlord, or Landlord shall have the right to remove and store said
property at the expense of Tenant, without further notice or demand upon Tenant
and shall hold Tenant responsible for any and all storage charges and moving
costs and expenses incurred by Landlord as a result thereof. Tenant indemnifies
Landlord against any losses, costs, damages, liabilities and expenses resulting
from Tenant's failure or delay in surrendering the Premises, including, without
limitation, any claims made by the succeeding occupants founded on such delay.
Tenant's obligations under this Section 23 shall survive the expiration or
sooner termination of the term of this Lease.
24. PERFORMANCE BY LANDLORD OF TENANT'S OBLIGATIONS. In the event
Landlord shall pay or be compelled to pay a sum of money, or to do any act which
requires the payment of any money, by reason of the failure of Tenant to perform
one or more of the covenants herein contained to be kept and performed by
Tenant, then in such event, the sum or sums so paid by Landlord, including
attorney's fees, together with all interest, expense or obligations incurred by
Landlord, shall be considered as additional rent and shall be added to the rent
becoming due for the next month and shall be collectible in the same manner and
with the same remedies as if they had been rents originally reserved. Landlord
agrees not to pay any sum of money or to do any act which requires payment of
any sum of money for which
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under the provisions of this Section 24 it would be entitled to be reimbursed by
Tenant, unless it shall have first given fifteen (15) days notice of its
intention so to do and Tenant shall have failed during such period to make
payment of such sum or sums as shall be payable hereunder, or to do such act or
acts which under the terms of this Lease it is required to do.
25. SURRENDER. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subleases or subtenancies
or, at the option of Landlord, may operate as an assignment to it of any or all
such subleases or subtenancies.
26. NOTICES. All notices to be given to Tenant shall be given in
writing, by hand-delivery or courier, or by depositing the same in the United
States Mails, certified or registered mail, return receipt requested, postage
prepaid and addressed to Tenant at 493 Nixon Road, Cheswick, Pennsylvania 15024
or at such other address as Tenant may hereafter designate in writing. Notice
given via hand-delivery or courier shall be deemed effective upon delivery by
leaving the notice with any receptionist, officer, agent or employee of Tenant
at its foregoing address. Notices to be given to Landlord shall be given in a
like manner and addressed to Landlord at: C/O JOHN A. MORAN, 22 SOUTH LINKS
AVENUE, SUITE 300, SARASOTA, FLORIDA 34236, or at such other address as Landlord
may hereafter designate in writing.
27. WAIVER. In the event either party does not insist on a strict
performance of any of the terms and conditions of the other hereunder, such
shall not be deemed a waiver of the rights or remedies that such party shall
have to insist upon strict performance of any such terms or conditions in the
future or any other conditions and terms of this Lease. No receipt of money by
Landlord from Tenant with knowledge of the breach of any covenant of this Lease
shall be deemed a waiver of such breach unless Landlord has so agreed in
writing. Likewise, no application of the Tenant's security deposit by Landlord,
to cure a default or breach by Tenant shall be deemed a waiver or satisfaction
of such default or breach.
28. SUCCESSORS AND ASSIGNS. The conditions and covenants herein
contained shall apply to and bind the heirs, successors, personal
representatives and assigns, where allowed, of the parties hereto.
29. INVALIDITY OF ANY PROVISIONS. If any term, covenant, condition
or provision of this Lease shall be held to any extent to be invalid or
unenforceable under applicable law, the remaining terms, covenants, conditions
and provisions of this Lease shall not be affected thereby but shall remain in
full force and effect.
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30. MISCELLANEOUS. The masculine, feminine or neuter gender,
wherever used herein, shall be deemed to include the masculine, feminine and
neuter whenever and wherever applicable herein. Whenever the singular is used it
shall be deemed to include the plural whenever and wherever applicable herein.
31. RADON GAS. Florida Statutes Section 404.056(8) requires the
following statement to be included in this Lease: RADON GAS: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit. Landlord hereby
represents and warrants that it is not aware of the presence of any radon gas
that exceeds Federal and State guidelines, nor the presence of any toxic mold in
the building in which the Premises is located.
32. HAZARDOUS WASTE. Tenant agrees that the Premises shall not be
used for the discharge or storage of any Hazardous Substance as defined in any
federal, state or local statute, rule, regulation or ordinance, except for usage
of standard office and cleaning solutions, solvents and materials, and for usage
of Hazardous Substances pursuant to development, manufacture or testing of
Tenant's products or components thereof, and except for storage of inventory,
parts and works-in progress produced or held in the development, manufacture or
testing of Tenant's products, and that all such usage, storage and disposal of
Hazardous Substances shall be in compliance with all Governmental Requirements.
Tenant agrees to indemnify Landlord and hold Landlord harmless from and against
any and all losses, liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, paralegals, fees and legal
assistants' fees, costs of any settlement or judgment in claims of any and every
kind, whatsoever paid, incurred or suffered by, or served against Landlord by
any person or entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission or release from the Premises, in
connection with Tenant's operations thereon, of any Hazardous Substance,
including any such loss or liability arising under the Comprehensive
Environmental Response, Compensation and Liability Act, and any similar federal,
state or local laws or ordinances. If Tenant receives any notice of: (i) the
happening of any material event involving the escape, seepage, leakage,
spillage, discharge, emission, release or clean up of any Hazardous Substance on
the Premises in connection with Tenant's operations thereon, or (ii) any
complaint, order, citation, or material notice with regard to air emission,
water discharge or any other environmental health or safety matter affecting
Tenant (an
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"environmental complaint") from any person or entity, Tenant shall immediately
notify Landlord orally and in writing of said notice. Any breach of any warranty
or representation contained in this Section 32 shall be an event of default
under the Lease, which, if not cured within thirty (30) days of notice thereof,
shall entitle Landlord to exercise any and all remedies provided in the Lease or
otherwise provided by law; provided, however, Landlord agrees that if the remedy
or such default cannot be reasonably achieved within said thirty (30) day
period, then Tenant shall have such further time as is reasonable under the
circumstances to effect such remedy provided that Tenant shall notify Landlord
within the thirty (30) day curative period of the necessity for additional time
and provided further that Tenant shall institute immediate steps to effect such
remedy and shall continuously and diligently pursue such remedy to completion.
33. RELATIONSHIP OF THE PARTIES. Nothing herein contained shall be
deemed or construed as creating the relationship of principal and agent or of
partnership or joint venture between Landlord and Tenant; it being understood
and agreed that neither the method of computing rent nor any other provision
contained herein nor any acts of Landlord and Tenant shall be deemed to create
any relationship between the parties other than that of landlord and tenant.
34. PARKING. Tenant will have the right to the nonexclusive use of
the parking in common with Landlord, and the guests, and employees and invitees
of the Property. Landlord shall at all times during the term provide Tenant an
adequate number of nonexclusive parking spaces for its use which shall be
adjacent to the building or reasonably convenient thereto.
Tenant agrees that it and its employees will park only in such areas as
Landlord may from time to time designate for employee parking. Tenant will
furnish to Landlord upon request, license numbers assigned to its cars and the
names of all of its employees who have cars parked on the Property.
Neither the parking area, nor any Common Area on the Property will be
used by Tenant or any agent or employee of Tenant for any political campaigning
or other similar use, including without limitation, the dissemination of
advertising or campaign leaflets or flyers.
35. WAIVER OF JURY TRIAL. Landlord and Tenant hereby waive trial by
jury in any action, proceeding, or counterclaim brought by either of them
against the other or any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant's use or
occupancy of the Premises and/or claim of injury or damage.
36. HOLDOVER. If Tenant remains in possession of the Premises after
the expiration of the term hereof, Tenant shall be
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deemed to be a Tenant from month-to-month, at twice the rental rate in effect at
the end of the term hereof.
37. BROKER. Other than any communication which Tenant had with
Lakewood Ranch Realty, Tenant does hereby represent and warrant that it has not
contacted or employed any real estate broker in connection with this
transaction. Accordingly, Tenant agrees to indemnify and hold Landlord harmless
from and against any claim, loss, damage, cost, or liability for any brokerage
commission or fee which may be asserted on account of this transaction by any
person who establishes by court action a right to such commission arising out of
dealings with the indemnifying party. Landlord acknowledges it is responsible
and shall pay the brokerage commission owing to Lakewood Ranch Realty in
connection with this Lease.
38. LAW GOVERNING. This Lease shall be governed and construed under
the laws of the State of Florida and jurisdiction of any legal proceedings
concerning the subject of this Lease shall be in the State of Florida, venue
shall be in Sarasota County.
39. POSSIBLE EXPANSION. The parties have discussed the possible need
of Tenant to expand, either during the initial term or during any renewal term
provided for in this Lease.
39.1 Right of First Refusal on Available Space. In the case of
expansion, it would be Tenant's preference to take on additional square footage,
in the same building, which relates to Tenant's Lease of the Premises, as part
of this Lease. Therefore, Tenant would prefer to receive notice of any available
space, as it occurs. On the other hand, Tenant is also aware that Landlord
currently has space available for lease on the second floor of the building (as
Tenant is only leasing the first floor) and therefore, Tenant understands
Landlord's need to be able to market such available space, without any material
restrictions. In order to address both parties' objectives, it is agreed that
except for any Leases entered into by Landlord concerning the Property during
the one (1) year time frame, which coincides with the initial first year of this
Lease, to the extent any rentable space becomes available in the building
subsequent thereto, and no other Tenant under Lease with the Landlord has any
option rights with respect to such space (provided, however, that to the extent
that Landlord affords any other tenant such an option right, such option right
shall be expressly subsidiary to Tenant's option right hereunder), then Landlord
agrees to promptly notify Tenant of the future availability of such space, in
writing, as soon as practicable. Upon Tenant's receipt of such written
notification from Landlord, Tenant shall have ten (10) days to notify Landlord
as to whether it wishes to elect to add on such additional available space, as
part of the rentable space, under this Lease. If Tenant elects to do so, then
such additional space (to which Tenant elects)
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shall be added on to the rentable square footage which is already the subject
matter of this Lease, and such total space shall be administered under the terms
of this Lease, with rental rates and all other obligations, to be computed at
the same per square foot rates as calculated herein, and as adjusted herein,
from year to year. If Tenant fails to provide its written election to add this
additional available space, within ten (10) days of its receipt of such notice
from Landlord, then Tenant shall be deemed to have waived its right hereunder
and Landlord may proceed to market and lease such space. The parties agree that
time is of the essence with regard to the time frames stated herein.
39.2 Good Faith Pursuit of Other Options for Expansion. In the event
that suitable space in the building in which the Premises is located is not
available at such time as Tenant desires additional space, Tenant shall have the
right to present Landlord with a plan or plans for construction of additional
space through (a) the addition of modular or temporary space on the Property,
whether or not physically connected to the Premises or the building; (b)
construction of an addition to the building in a location that adjoins the
Premises; or (c) construction of additional floor space where physically
feasible above the Premises but within the existing building containing the
Premises. Landlord may reject such plans on the bases of (i) noncompliance with
Governmental Requirements (including, without limitation, zoning) or easement
obligations or other covenants then affecting the Property; (ii) non-compliance
with Landlord's established aesthetic or construction quality standards; (iii)
material negative impact that such construction would have on the value of the
Property; (iv) non-compliance with any mortgage terms and conditions affecting
the Property; (v) such expansion plans are not supportable given the quality of
the utilities servicing the Property; or, (vi) the cost of construction in
relation to the remaining lease term of Tenant, does not make economic sense for
Landlord in its sole discretion. In the event that there is no basis for
rejection of such plans, and the plans are deemed by both Landlord and Tenant to
be financially feasible, Landlord and Tenant shall negotiate in good faith an
agreement regarding the remaining lease term and/or an extension of such lease
term (with the new square footage to be charged at the then-current rates as
part of this Lease, including all applicable adjustments as required by the
Lease from year to year).
39.3 Termination of Lease Due to Inability to Expand. In the event
that Tenant desires additional space and its interest therein is not satisfied
through any of the means described in Sections 39.1 and 39.2 hereof (or if such
plans would be overly expensive or time-consuming for Tenant to pursue, in
Tenant's sole discretion) or through the availability of space in contiguous
buildings that is a feasible alternative (in Tenant's sole discretion) to space
within the building in which the Premises is located, Tenant shall have the
right, exercisable at any time after the end of the third (3rd) year of the
Lease term,
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to terminate this Lease unilaterally upon not less than nine (9) months advance
written notice (which notice cannot be given prior to the end of the third year
of the initial lease term), and upon the payment of liquidated damages equal to
six (6) months rent at the rate of rent (including CAM) existing at the time
that Tenant furnishes its notice, but otherwise without penalty or payment from
Tenant of any kind except for any payment that would be due in connection with
its quitting of the Premises at the end of the Lease term upon the expiration of
the Lease.
40. TERMINATION OF LEASE DUE TO UNAVAILABILITY OF PREMISES. Landlord
and Tenant hereby acknowledge that on the date of this Lease, the Property,
including the Premises, is occupied by SPEEDCOM WIRELESS CORPORATION
("Speedcom") pursuant to an existing lease agreement between Landlord and
Speedcom (the "Speedcom Lease"). Landlord hereby represents and warrants to
Tenant that Speedcom is in default of the Speedcom Lease, that such default is
not subject to cure, that Landlord is presently pursuing legal action against
Speedcom to evict it from the Property, and that Landlord intends to and shall,
as soon as possible, either terminate the Speedcom Lease and evict Speedcom from
the Property, using whatever legal means are necessary for that purpose, or
procure and enter into an amendment of the Speedcom Lease whereby Speedcom's
right to occupy the Premises will cease and Speedcom will be caused to promptly
vacate the Premises. If the court to which Landlord has applied for an eviction
action against Speedcom denies such request for eviction, Landlord shall
promptly thereupon undertake its best efforts to negotiate Speedcom's permanent
vacation of the Premises. Landlord shall keep Tenant reasonably informed as to
the outcome of its aforementioned legal action against Speedcom. Landlord
acknowledges and agrees that Tenant has not induced Landlord to terminate the
Speedcom Lease or act to evict Speedcom from the Property or the Premises, and
that Tenant shall make no financial or other contribution toward or play any
role in Landlord's interactions with Speedcom. Notwithstanding any other
provision of this Lease, Tenant shall have the option at its sole discretion,
but not the obligation, to terminate this Lease, effective immediately, without
penalty or payment of any kind, in the event that Speedcom has not been fully
and finally evicted from or irrevocably released its right of occupancy of the
Premises and ceased to occupy the Premises no later than twenty-one (21) days
after the date of this Lease first set forth above. The foregoing option of
Tenant, if not exercised immediately, shall remain exercisable until such time
as Speedcom has actually been fully and finally evicted from or irrevocably
released its right of occupancy of the Premises and ceased to occupy the
Premises. The foregoing provisions shall not constitute an obligation of Tenant,
or be understood to express any willingness of Tenant, to enter into a sublease
of the Premises from Speedcom or an assignment of the Speedcom Lease as it
pertains to the Premises.
-24-
Landlord has apprised Tenant, that an eviction hearing concerning
Speedcom has been scheduled for Wednesday afternoon, February 19, 2003. Unless
Speedcom enters into a written agreement agreeing to vacate the premises by
February 28, 2003, Landlord will seek a Court Order requiring Speedcom to vacate
the Premises on or before such date. Landlord agrees to provide an update as to
the status of the Speedcom matter as soon as an agreement is reached, or, if an
agreement is not reached, the Court's finding from its hearing on Wednesday,
February 19, 2003. If a Court Order is not received which requires Speedcom to
vacate the premises on or before February 28, 2003, then in that event, Tenant
shall have the option (in addition to its twenty-one (21) day option referenced
in the preceding paragraph) to cancel this Lease within seven (7) days after the
full execution of this Lease, if it is not satisfied, in its sole and absolute
discretion, concerning the timetable for the vacancy by Speedcom, of its
occupancy of the Premises. For clarification purposes, if the Court Order
requires Speedcom to vacate the Premises prior to February 28, 2003, or if a
written agreement is entered into whereby Speedcom agrees to vacate the Premises
on or before such date, then no such seven (7) day option under this paragraph
shall apply to Tenant.
41. RECONFIGURATION OF PROPERTY FOR MULTI-TENANCY. Tenant
acknowledges that the Property is presently configured for single tenant
occupancy. However, promptly upon the eviction of or vacation by Speedcom of the
Premises, Landlord shall commence reconfiguration of and improvements to the
Property (starting with the Premises) for multi-tenant occupancy, which
reconfiguration and improvements Landlord shall diligently pursue to completion
as soon as possible, and which Landlord shall endeavor to coordinate with any
alterations undertaken by Tenant pursuant to Section 10 hereof so as to allow
Tenant to commence and complete such alterations as soon as possible. Landlord
hereby warrants that such reconfiguration and improvements shall be materially
completed no later than the last day of March, 2003. Landlord acknowledges that
time is of the essence in the completion of the aforementioned reconfiguration
and improvements. Such reconfiguration and improvements shall be at Landlord's
sole cost and expense, and Landlord's expenditures therein shall not be deemed
part of the CAM Expenses.
DATED on this 18 day of February, 2003.
WITNESSES: LAKEWOOD RANCH PROPERTIES,
L.L.C., A FLORIDA LIMITED
-25-
BY: /s/ John A. Moran
- -------------------------------- -----------------------------------
PRINT NAME JOHN A. MORAN
---------------------- AS ITS MANAGER
- --------------------------------
PRINT NAME
----------------------
"LANDLORD"
(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.)
WITNESSES: TOLLGRADE COMMUNICATIONS,
INC., A PENNSYLVANIA
CORPORATION
/S/ SARA M. ANTOL BY: /s/ CHRISTIAN L. ALLISON
- -------------------------------- ----------------------------------
PRINT NAME SARA M. ANTOL NAME CHRISTIAN L. ALLISON
---------------------- ---------------------------------
AS ITS CHAIRMAN AND C.E.O.
-------------------------------
- --------------------------------
PRINT NAME
----------------------
"TENANT"
(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
-26-
EXHIBIT "A"
[FLOOR PLAN OF LEASED PREMISES]
EXHIBIT "B"
[LEGAL DESCRIPTION OF PROPERTY]
EXHIBIT "C"
A. Expenses Paid Through CAM
1. Real property taxes
2. Insurance coverage, which under the Lease is to be paid by
Landlord
3. Lakewood Ranch Association Fees
4. Property Management Fees and other administrative expenses
5. Maintenance for Building (exterior)
6. Common Area Maintenance - Exterior of building and also
Interior, if considered common area for multi-Tenants.
7. Landscaping
8. Grounds, maintenance and repair (parking lot, lighting, walks,
etc)
9. Trash removal (from containers outside of building)
10. Janitorial services for common areas (lobby, stairwells, etc)
11. Heating, ventilating and air conditioning systems and equipment
for areas common to multi-Tenants (except as otherwise provided
for the initial first year of the Lease Term, as provided in
Section 4.4 of the Lease)
12. Plumbing (restrooms, water fountains, etc) for areas common to
multi-Tenants (except as otherwise provided for the initial
first year of the Lease Term, as provided in Section 4.4 of the
Lease)
13. Lighting system (florescent lighting tubes, etc) for areas
common to multi-Tenant and for overhead florescent lighting in
the Premises
14. Elevator maintenance
15. Life safety systems (fire extinguishers, exit lighting, fire
alarm and fire sprinkler system, etc.) for areas common to
multi-Tenant and for the Premises
16. Water/Sewer
17. Pest control
18. Painting (other than Tenant's interior premises)
- ------------------ -----------------
Landlord Initials Tenant Initials
2002 10-K Exhibit 10.32 (Florida Lease)
B. Expenses to be Paid Directly by Tenant
1. Electric Expense for Premises
2. Janitorial Service for interior of premises, including carpet
maintenance, vinyl, tile, dusting, lunch area maintenance, and
trash removal from offices, lunch area etc.
3. All maintenance costs and repairs associated with Tenant's use
and occupancy of the Premises.
FOOTNOTE: IT IS THE INTENTION OF THE LANDLORD AND TENANT TO ENTER INTO A TRIPLE
NET LEASE. ACCORDINGLY, ALL ITEMS OF EXPENSE ASSOCIATED WITH TENANT'S INTERIOR
USE OF THE PREMISES, ARE TO BE THE RESPONSIBILITY OF TENANT AND SHALL BE PAID BY
TENANT DIRECTLY. FURTHERMORE, ALL ITEMS RELATING TO THE COMMON AREAS OF THE
PROPERTY (THE AREA OF THE PROPERTY USED BY THE GENERAL PUBLIC AND/OR OTHER
TENANTS IN THE BUILDING) AS WELL AS ALL AREAS OUTSIDE OF THE BUILDING, UPON
WHICH THE PREMISES IS SITUATED, SHALL BE PAID FOR THROUGH CAM CHARGES HANDLED AS
PROVIDED IN SECTION 4 OF THE LEASE.
- ------------------ -----------------
Landlord Initials Tenant Initials
2002 10-K Exhibit 10.32 (Florida Lease)