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10-Q
Nov 6, 4:01 PM ET
LENSAR, Inc. 10-Q
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Contents
135
Article 1BASIC TERMS
1.01 Date of Lease: July 30, 2010
1.02 Landlord (legal entity): Challenger-Discovery, LLC, a Delaware limited liability company
1.03 Tenant (legal entity): LensAR, Inc., a Delaware corporation
1.04 Tenant’s Guarantor: None
1.05 Address of Property: 2800 Discovery Drive, Orlando, Florida 32826
1.06 Property Rentable Area: 44,765 (subject to Section 2.02 below)
1.07 Premises Rentable Area: 34,758 (subject to Section 2.02 below)
1.08 Tenant’s Initial Pro Rata Share: 77.65% (subject to adjustment based on Section 2.02 below)
1.09 Lease Term: Sixty-six (66) months, commencing on the Lease Commencement Date.
1.10 Lease Commencement Date: The date Landlord delivers possession of the Premises with Landlord’s Work (as defined in Paragraph 1 of the Work Letter) substantially complete (as defined in Paragraph 7 of the Work Letter) and with a Certificate of Occupancy (subject to a Delay as defined in Paragraph 8 of the Work Letter).
1.11 Target Lease Commencement Date: September 1, 2010
1.12 Permitted Uses: General office use and research and development in optics and visual science and marketing of ophthalmic therapeutic medical devices including the assembly of finished products from components.
1.13 Broker: Lincoln Property Company of Florida, Inc. and Dunhill Properties, Inc.
1.14 Security Deposit Requirement: $112,963.50
1.15 Parking Spaces Allocated to Tenant: 145
1.16 Base Rent (subject to adjustment based on Section 2.02 below):
1.17 Other Charges Payable by Tenant:
1.18 Address of Landlord for Notices:
1.19 Address of Tenant for Notices:
1.20 Landlord’s Management Agent and Address:
1.21 Fiscal Year: Calendar year ending April 30th
1.22 Exhibits:
Article 2PREMISES
2.01 Premises. The Premises are depicted on Exhibit B and are situated on the land which is legally described in Exhibit A (the “Land”). The Property includes the Land, the building constructed on the Land (the “Building”), and all other improvements located on the Land including the common areas described in Article Eight.
2.02 BOMA Standards Calculation. The Property Rentable Area and Premises Rentable Area shall mean the rentable area of the Property and the Premises, respectively, measured and calculated in accordance with BOMA standards (BOMA 265.1‑1996). Accordingly, the Property Rentable Area, Premises Rentable Area, Tenant’s Initial Pro Rata Share and Base Rent are subject to adjustment before the Lease Commencement Date by mutual written agreement of the parties.
2.03 Quiet Enjoyment. Provided Tenant has performed all of the terms, covenants and conditions of this Lease to be performed by Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the term hereof, without hindrance from anyone, subject to the terms and conditions of this Lease.
Article 3LEASE TERM
3.01 Lease of Premises for Lease Term. Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord for the Lease Term. Landlord shall complete the leasehold improvements described in Exhibit D attached hereto and incorporated herein by this reference. The Lease Term shall begin on the Lease Commencement Date.
3.02 Delay in Commencement. Landlord shall not be liable to Tenant if Landlord shall not deliver possession of the Premises to Tenant on the Target Lease Commencement Date. Landlord’s non‑delivery of the Premises to Tenant on that date shall not affect this Lease or the obligations of Tenant under this Lease.
3.03 Early Access. Tenant shall be permitted access to the Premises no less than two (2) weeks prior to the Lease Commencement Date in order to install Tenant’s furniture, fixtures, data/phone and cabling systems. Tenant’s early access of the Premises shall be subject to all of the provisions of this Lease. Early access of the Premises for such space preparation purposes shall not advance the Lease Commencement Date or expiration date of this Lease. In addition to the foregoing, Landlord shall instruct its contractor undertaking the Landlord’s Work to contact Tenant when the walls and/or ceilings have been opened up so as to be most conducive to installation of cabling, networks and security systems and allow Tenant’s vendors to install the foregoing; provided that Landlord’s Work shall in no way be delayed or impeded.
3.04 Holding Over. Tenant shall vacate the Premises upon the expiration or earlier termination of this Lease. Tenant shall reimburse Landlord for, and indemnify Landlord against, all damages, costs, liabilities and expenses, including attorneys’ fees, which Landlord shall incur on account of Tenant’s delay in so vacating the Premises. If Tenant shall not vacate the Premises upon the expiration or earlier termination of this Lease, the Base Rent shall be increased to 150% times the Base Rent then in effect and Tenant’s obligation to pay Additional Rent shall continue, but nothing herein shall limit any of Landlord’s rights or Tenant’s obligations arising from Tenant’s failure to vacate the Premises, including, without limitation. Landlord’s right to repossess the Premises and remove Tenant therefrom at any time after the expiration or earlier termination of this Lease and Tenant’s obligation to reimburse and indemnify Landlord as provided in the preceding sentence.
Article 4REnt
4.01 Base Rent. On the first day of each month during the Lease Term, Tenant shall pay to Landlord the Base Rent in lawful money of the United States, in advance and without offset, deduction, or prior demand. The Base Rent shall be payable at Landlord’s address or at such other place or to such other person as Landlord may designate in writing from time to time. However, the Landlord may not unreasonably withhold a request by the Tenant to arrange for ACH transfer of the Rent and/or other payments that may become due and payable hereunder in this Lease to effect timely delivery of such payment that is not to a physical address. Notwithstanding the foregoing, Tenant shall pay $37,654.50 upon full execution of this Lease which represents the Base Rent payment for the twelfth (12th) month of the Lease Term.
4.02 Additional Rent. All sums payable by Tenant under this Lease other than Base Rent shall be deemed “Additional Rent;” the term “Rent” shall mean Base Rent and Additional Rent. Landlord shall estimate in advance and charge to Tenant the following costs, to be paid with the Base Rent on a monthly basis throughout the Lease Term, but commencing with the first day of the first month of the Lease Term: (i) all Real Property Taxes for which Tenant is liable under Sections 5.01 and 5.02 of this Lease, (ii) all utility costs (if utilities are not separately metered) for which Tenant is liable under Section 6.01 of this Lease, (iii) all insurance premiums for which Tenant is liable under Sections 7.01 and 7.06 of this Lease and (iv) all CAM Expenses for which Tenant is liable under Section 8.04 of this Lease. Collectively, the aforementioned Real Property Taxes, insurance, utility, and CAM Expenses shall be referred to as the “Total Operating Costs”. For reference purposes only and not as any representation by Landlord as to such information, the 2010 budget for the Total Operating Costs is attached hereto as Exhibit H and incorporated herein by this reference. Landlord may adjust its estimates of Total Operating Costs at any time based upon Landlord’s experience and reasonable anticipation of costs. Such adjustments shall be effective as of the next Rent payment date after notice to Tenant. Within one hundred twenty (120) days after the end of each Fiscal Year during the Lease Term, Landlord shall deliver to Tenant a statement prepared in accordance with generally accepted accounting principles setting forth, in reasonable detail, the Total Operating Costs paid or incurred by Landlord during the preceding Fiscal Year and Tenant’s Pro Rata Share of such expenses. Within thirty (30) days after Tenant’s receipt of such statement, there shall be an adjustment between Landlord and Tenant, with payment to or credit given by Landlord (as the case may be) in order that Landlord shall receive the entire amount of Tenant’s Pro Rata of such costs and expenses for such period. In addition to its obligation to pay Base Rent and its Pro Rata Share of Total Operating Costs, Tenant is required hereunder to pay directly to its suppliers, vendors, carriers and contractors, certain insurance premiums, utility costs, personal property taxes, maintenance and repair costs and other expenses, collectively “Additional Expenses.” If Landlord pays for any Additional Expenses in accordance with the terms of this Lease, Tenant’s obligation to reimburse such costs shall be an Additional Rent obligation payable in full with the next monthly Rent payment.
4.03 Late Charge. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent and other amounts due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any loan secured by the Building. Accordingly, if any installment of Rent or any other sums due from Tenant shall not be received by Landlord within five (5) days following the due date, Tenant shall pay to Landlord a late charge equal to ten percent (10%) of such overdue amount; provided, however, Tenant shall not be obligated to pay such late charge for the first (1st) late payment m any twelve (12) month period in the Lease Term. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant’s default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder.
4.04 Interest. Any Rent or other amount due to Landlord, if not received by Landlord within five (5) days from when due, shall bear interest from the date due until paid at the rate of eighteen percent (18%) per annum or, if a higher rate is legally permissible, at the highest rate legally permitted, provided that interest shall not be payable on late charges incurred by Tenant nor on any amounts upon which late charges are paid by Tenant to the extent such interest would cause the total interest to be in excess of that legally permitted. Payment of interest shall not excuse or cure any default hereunder by Tenant.
4.05 Tenant’s Pro Rata Share. Tenant’s Pro Rata Share shall be calculated by dividing the Premises Rentable Area by the Property Rentable Area, which is leased or held for lease by tenants, as of the date on which the computation shall be made. Tenant’s Initial Pro Rata Share is set forth in Section 1.08 and is subject to adjustment based on the aforementioned formula.
Article 5PROPERTY TAXES
5.01 Real Property Taxes. Tenant shall pay Tenant’s Pro Rata Share of Real Property Taxes on the Property payable during the Lease Term. Tenant shall make such payments in accordance with Section 4.02. If Landlord shall receive a refund of any Real Property Taxes with respect to which Tenant shall have paid Tenant’s Pro Rata Share, Landlord shall refund to Tenant Tenant’s Pro Rata Share of such refund after deducting therefrom the costs and expenses incurred in connection therewith.
5.02 Definition of “Real Property Tax”. “Real Property Tax” shall mean taxes, assessments (special, betterment, or otherwise), levies, fees, rent taxes, excises, impositions, charges, water and sewer rents and charges, and all other government levies and charges, general and special, ordinary and extraordinary, foreseen and unforeseen, which are imposed or levied upon or assessed against the Property or any Rent or other sums payable by any tenants or occupants thereof. Real Property Tax shall include Landlord’s costs and expenses of contesting any Real Property Tax. Real Property Tax shall not include any permit fees, impact fees or connection fees related to preparation and use of Additional Space on the Property unless such preparation and use is related to an exercise of the Right of First Refusal pursuant to Article 19 herein. If at any time during the Lease Term the present system of ad valorem taxation of real property shall be changed so that in lieu of the whole or any part of the ad valorem tax on real property, or in lieu of increases therein, there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Property or a federal, state, county, municipal, or other local income, franchise, excise or similar tax, assessment, levy, or charge (distinct from any now in effect) measured by or based, in whole or in part, upon gross rents, then all of such taxes, assessments, levies, or charges, to the extent so measured or based, shall be deemed to be a Real Property Tax.
5.03 Personal Property Taxes. Tenant shall pay directly all taxes charged against trade fixtures, furnishings, equipment, inventory, or any other personal property belonging to Tenant. Tenant shall use its best efforts to have personal property taxed separately from the Property. If any of Tenant’s personal property shall
be taxed with the Property, Tenant shall pay Landlord the taxes for such personal property within fifteen (15) days after Tenant receives a written statement from Landlord for such personal property taxes.
5.04 Real Estate Appraisal Appeal. In the event the Real Property Tax assessment in any tax year in the Lease Term exceeds the previous year’s Real Property Tax assessment by more than 5%, and Landlord fails to appeal such tax assesment within a reasonable period of time after receipt of such assessment. Tenant shall be entitled to appeal the valuation of the Property for Real Property Tax purposes. Landlord shall reasonably cooperate by furnishing Tenant such reasonable information as necessary or helpful to do so, as well as execute all appeal forms; provided, however, Landlord shall incur no out of pocket expense for the foregoing appeal.
Article 6UTILITIES
6.01 Utilities. Tenant shall promptly pay, directly to the appropriate supplier, the cost of all natural gas, heat, cooling, energy, light, power, sewer service, telephone, water, refuse disposal and other utilities and services supplied to the Premises, allocable to the period from the time Tenant shall first enter the Premises, throughout the Lease Term and thereafter as long as Tenant shall remain in the Premises (collectively, “the Occupancy Period”), together with any related installation or connection charges or deposits (collectively “Utility Costs”). If any services or utilities are jointly metered with other premises, Landlord shall make a reasonable determination of Tenant’s proportionate share of such Utility Costs and Tenant shall pay such share to Landlord in accordance with Section 4.02. Landlord shall not be liable for damages, consequential or otherwise, nor shall there be any rent abatement, arising out of any curtailment or interruption whatsoever in utility services unless the Premises is not separately metered and the curtailment or interruption is related to the misconduct or gross negligence of Landlord (and Tenant has paid its Pro Rata Share). Utilities serving the Common Areas (as defined in Article Eight) exclusively shall be accounted for as described in Article Eight.
Article 7INSURANCE
7.01 Liability Insurance. During the Occupancy Period, Tenant shall maintain in effect commercial general liability insurance insuring Tenant against liability for bodily injury, property damage (including loss of use of property) and personal injury at the Premises, including contractual liability. Such insurance shall name Landlord, its property manager, and any mortgagee, as additional insureds. The initial amount of such insurance shall be Three Million Dollars ($3,000,000) per occurrence and shall be subject to periodic increases specified by Landlord based upon inflation, recommendation of Landlord’s professional insurance advisers, and insurance coverage trends for comparable Orlando area commercial “flex” space buildings. The liability insurance obtained by Tenant under this Section 7.01 shall (i) be primary and (ii) insure Tenant’s obligations to Landlord under Section 7.09. The amount and coverage of such insurance shall not limit Tenant’s liability nor relieve Tenant of any other obligation under this Lease. Landlord may also obtain commercial general liability insurance in an amount and with coverage determined by Landlord insuring Landlord against liability with respect to the Premises and the Property. The policy obtained by Landlord shall not provide primary insurance, shall not be contributory and shall be excess over any insurance maintained by Tenant.
7.02 Worker’s Compensation Insurance. During the Occupancy Period. Tenant shall maintain in effect Worker’s Compensation Insurance (including Employers’ Liability Insurance) in the statutory amount covering all employees of Tenant employed or performing services at the Premises, in order to provide the statutory benefits required by the laws of the state in which the Premises are located.
7.03 Automobile Liability Insurance. During the Occupancy Period, Tenant shall maintain in effect Automobile Liability Insurance, including but not limited to, passenger liability, on all Tenant owned, leased, and
hired vehicles used in connection with the Premises, with a combined single limit per occurrence of not less than One Million Dollars ($1,000,000) for injuries or death of one or more persons or loss or damage to property.
7.04 Personal Property Insurance. During the Occupancy Period, Tenant shall maintain in effect Personal Property Insurance covering leasehold improvements paid for by Tenant and Tenant’s personal property and fixtures from time to time in, on or at the Premises, in an amount not less than 100% of the full replacement cost, without deduction for depreciation, providing protection against events protected under “All Risk Coverage,” as well as against sprinkler damage, vandalism and malicious mischief. Any proceeds from the Personal Property Insurance shall be used for the repair or replacement of the property damaged or destroyed unless this Lease is terminated under an applicable provision herein. If the Premises are not repaired or restored following damage or destruction in accordance with other provisions herein. Landlord shall receive any proceeds from the Personal Property Insurance allocable to Tenant’s leasehold improvements.
7.05 Intentionally Omitted.
7.06 Landlord’s Property and Rental Income Insurance. During the Lease Term, Landlord shall maintain in effect all risk insurance covering loss of or damage to the Property in the amount of its replacement value with such endorsements and deductibles as Landlord shall determine from time to time. Landlord shall have the right to obtain flood, earthquake, and such other insurance as Landlord shall determine from time to time or shall be required by any lender holding a security interest in the Property. Landlord shall not obtain insurance for Tenant’s fixtures or equipment or building improvements installed by Tenant. During the Lease Term, Landlord shall also maintain a rental income insurance policy, with loss payable to Landlord, in an amount equal to one (1) year’s Base Rent, plus estimated Real Property Taxes, CAM Expenses, Utility Costs and insurance premiums for one (1) year. Tenant shall be liable for the payment of any deductible amount under Landlord’s insurance maintained pursuant to this Article 7, in an amount not to exceed Twenty Five Thousand Dollars ($25,000.00) in the aggregate. Tenant shall not do or permit anything to be done which shall invalidate any such insurance. Any increase in the cost of Landlord’s insurance due to Tenant’s use or activities at the Premises shall be paid by Tenant to Landlord as Additional Rent hereunder.
7.07 Payment of Insurance Premiums. Landlord shall pay the premiums of the insurance policies maintained by Landlord under Section 7.06 and Section 7.01 (if applicable), and Tenant shall reimburse Landlord for Tenant’s Pro Rata Share of such premiums in accordance with Section 4.02. Tenant shall pay directly the premiums of the insurance policies maintained by Tenant under Sections 7.01, 7.02, 7.03, 7.04 and 7.05.
7.08 General Insurance Provisions.
7.09 Indemnity.
Article 8COMMON AREAS
8.01 Common Areas. As used in this Lease, “Common Areas” shall mean all areas within the Property which are available for the common use of tenants of the Property and which are not leased or held for the exclusive use of Tenant or other tenants, including, but not limited to, parking areas, driveways, sidewalks, access roads, landscaping, and planted areas. Landlord, from time to time, may change the size, location, nature, and use of any of the Common Areas, convert Common Areas into leasable areas, construct additional parking facilities (including parking structures) in the Common Areas, and increase or decrease Common Area land or facilities. Tenant acknowledges that such activities may result in inconvenience to Tenant and Landlord warrants that any such activities shall be undertaken so as to reasonably minimize any such inconvenience. Such activities and changes are permitted if they do not materially affect Tenant’s use of the Premises. The bathrooms located adjacent to the Premises and the corridor leading to them shall be a Shared Area (defined herein), but shall only be available for use by Tenant and any tenant of the other leased space located adjacent to those bathrooms. For purposes of this Section 8.01, the term “Shared Area” shall mean the space to be used only by Tenant and the tenant to be located adjacent to the Premises. The costs related to the Shared Area are shared equally by Tenant and such other tenant.
8.02 Use of Common Areas. Tenant shall have the non-exclusive right (in common with other tenants and all others to whom Landlord has granted or may grant such rights) to use the Common Areas for the purposes intended, subject to such reasonable rules and regulations (the “Rules and Regulations”) as Landlord may establish or modify from time to time and as initially set forth in Exhibit C. Landlord shall uniformly enforce all Rules and Regulations for all tenants in the building. Tenant shall abide by all such Rules and Regulations and shall use its best efforts to cause others who use the Common Areas with Tenant’s express or implied permission to abide by Landlord’s Rules and Regulations. At any time, Landlord may close any Common Areas to perform any acts in the Common Areas as, in Landlord’s reasonable judgment, are desirable to maintain or improve the Property. Tenant shall not interfere with the rights of Landlord, other tenants, or any other person entitled to use the Common Areas.
8.03 Vehicle Parking. Tenant shall be entitled to use the Parking Spaces Allocated to Tenant without paying any additional Rent. Of the Parking Spaces Allocated to Tenant, Tenant shall be entitled to reserve ten (10) spaces (the “Reserved Spaces”) and shall be entitled to mark such space with signage stating “LensAR Reserved”. All such signage shall be subject to the approval of all applicable municipalities and Landlord. Other than the Reserved Spaces, Tenant’s parking shall not be reserved and shall be limited to vehicles no larger than standard size automobiles or pickup utility vehicles. Tenant shall not cause large trucks or other large vehicles to be parked within the Property or on the adjacent public streets except in accordance with the Rules and Regulations. Vehicles shall be parked only in striped parking spaces and not in driveways or other locations not specifically designated for parking. Handicapped spaces shall only be used by those legally permitted to use them. Tenant shall not park at any time more vehicles in the parking area than the number of Parking Spaces Allocated to Tenant. Tenant’s use of the Property for parking purposes shall at all times comply with all applicable laws, codes and ordinances.
8.04 Common Area Maintenance. Subject to Articles Eleven and Twelve, Landlord shall maintain the Common Areas in good order, condition, and repair. Common Area Maintenance expenses (“CAM Expenses”) are all costs and expenses associated with the operation and maintenance of the Common Areas and the repair and maintenance of the heating, ventilation, air conditioning, plumbing, electrical, utility and safety systems (to the extent not performed by Tenant), including, but not limited to, the following: gardening and landscaping; snow removal; utility, water, sewage and property drainage services for the Common Area; maintenance of signs (other than tenants’ signs); worker’s compensation insurance; personal property taxes; rentals or lease payments paid by Landlord for rented or leased personal property used in the operation or
maintenance of the Common Areas; fees for required licenses and permits routine maintenance and repair of roof membrane, flashings, gutters, downspouts, roof drains, skylights and waterproofing; maintenance of paving, (including sweeping, striping, repairing, resurfacing and repaving); general maintenance; painting; lighting; cleaning; refuse removal; security and similar items; reserves for roof replacement, exterior painting and other appropriate reserves; and a property management fee not to exceed five percent (5%) of building revenues. Landlord may cause any or all of such services to be provided by third parties and the cost of such services shall be included in CAM Expenses. With respect to any CAM Expenses which are included for the benefit of the Property and other property. Landlord shall make a reasonable allocation of such cost between the Property and such other property. CAM Expenses shall not include the cost of capital repairs and replacements; provided, however, that (a) the annual depreciation (based on the useful life of the item under generally accepted accounting principles) of any such capital repair or replacement to the Common Areas or the heating, ventilating, air-conditioning, plumbing, electrical, utility and safety systems serving the Property, shall be included in the CAM Expenses each year during the Lease Term; and (b) the cost of capital improvements undertaken to reduce CAM Expenses or made in order to comply with legal requirements shall be included in CAM Expenses each year during the term of this Lease.
8.05 Tenant’s Payment of CAM Expenses. Tenant shall pay Tenant’s Pro Rata Share of all CAM Expenses in accordance with Section 4.02.
Article 9USE Of PREMISES
9.01 Permitted Uses. Tenant may use the Premises only for the Permitted Uses.
9.02 Manner of Use. Tenant shall not cause or permit the Premises (including all parking, dock and trailer areas used in connection therewith) to be used in any way which shall constitute a violation of any law, ordinance, restrictive covenants, governmental regulation or order, which shall annoy or interfere with the rights of tenants of the Property, or which shall constitute a nuisance or waste. As part of the Construction Allowance, Landlord shall obtain and pay for all permits, including a certificate of occupancy. As of the Lease Commencement Date, Landlord warrants that Landlord’s Work will be designed and installed in a manner to assure initial compliance with the Occupational Safety and Health Act (“OSHA”) and the Americans With Disabilities Act (“ADA”) requirements for the Premises. Following the Commencement Date and throughout the Lease Term, including any Option Period(s), Tenant shall promptly take all actions necessary to comply with all applicable statutes, ordinances, codes, regulations, orders, covenants and requirements regulating the use by Tenant of the Premises, including OSHA and the ADA.
9.03 Hazardous Materials. Prior to executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes all Hazardous Materials (as defined below) which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (each, an “Updated Disclosure Certificate”) describing Tenant’s then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificate shall be in the same format as that which is set forth in Exhibit F or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and
Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing, in accordance with this Section 9.03.
9.04 Signs and Auctions. Tenant shall not place any signs on the Property without Landlord’s prior written consent. Tenant shall not conduct or permit any auctions or sheriffs sales at the Property.
9.05 Landlord’s Access. Subject to reasonable notice under the circumstances (other than in the case of an emergency), with Tenant always having the complete ability to keep its business activities and materials confidential, Landlord or its agents may enter the Premises at all reasonable times to show the Premises to potential buyers, investors or tenants or other parties; to do any other act or to inspect and conduct tests in order to monitor Tenant’s compliance with all applicable environmental laws and all laws governing the presence and use of Hazardous Material; or for any other purpose Landlord deems necessary. Landlord shall give Tenant prior notice (which may be oral) of such entry, except in the case of an emergency, in which event Landlord shall make reasonable efforts to notify Tenant. Landlord may place customary “For Sale” or “For Lease” signs on the Premises.
Article 10CONDITION AND MAINTENANCE of PREMISES
10.01 Existing Conditions. Subject in all events to Landlord’s successful completion of Landlord’s Work as set forth in the Work Letter attached hereto as Exhibit D, Tenant shall accept the Property and the Premises in the condition described in the Work Letter and the plans generated in accordance therewith, as of the Lease Commencement Date, subject to all recorded matters, laws, ordinances, and governmental regulations and orders. Except as provided herein, Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation as to the condition of the Property or the suitability of the Property for Tenant’s intended use. Tenant represents and warrants that Tenant has made its own inspection of and inquiry regarding the condition of the Property and is not relying on any representations of Landlord or any Broker with respect thereto. Tenant agrees to execute promptly a Commencement Letter and Acceptance of the Premises in the form set forth in Exhibit E to this Lease.
10.02 Exemption of Landlord from Liability. Tenant shall insure its personal property under an all risk full replacement cost property insurance policy as provided in Section 7.04. Landlord shall not be liable for any damage or injury to the person, business (or any loss of income therefrom), goods, wares, merchandise or other property of Tenant. Tenant’s employees, invitees, customers or any other person or about the Property, whether such damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising in or about Property, or from other sources or places; or (d) any act or omission of any other tenant of the Property. Tenant shall give Landlord prompt notice upon the
occurrence of any accident or casualty at the Premises. Landlord shall not be liable for any such damage or injury even though the cause of or the means of repairing such damage or injury are not accessible to Tenant. The provisions of this Section 10.02 shall not, however, exempt Landlord from liability for Landlord’s gross negligence or willful misconduct.
10.03 Landlord’s Obligations. Subject to the provisions of Article Eleven (Damage or Destruction) and Article Twelve (Condemnation), and except for damage caused by any act or omission of Tenant, or Tenant’s employees, agents, contractors or invitees. Landlord shall keep the foundation, roof, building systems (other than the heating, ventilating and air conditioning system serving only the Premises), structural supports and exterior walls of the improvements on the Property in good order, condition and repair. However, Landlord shall not be obligated to maintain or repair windows, doors, plate glass (whether interior or exterior) or the interior surfaces of walls of the Premises. Tenant shall promptly (but in no event not less than five (5) days, except in the event of an emergency, when notice shall be given immediately) report in writing to Landlord any defective condition known to it which Landlord is required to repair. If further damage is caused as a result of Tenant’s failure to notify Landlord as set forth herein of any defective condition, then Tenant shall be responsible for the cost of the repair of such further damage. Tenant hereby waives the benefit of any present or future law which provides Tenant the right to repair the Premises or Property at Landlord’s expense or to terminate this Lease because of the condition of the Property or Premises.
10.04 Tenant’s Obligations.
10.05 Alterations, Additions, and Improvements.
10.06 Condition Upon Termination. Upon the expiration or termination of this Lease, Tenant shall surrender the Premises to Landlord broom clean and in the condition which Tenant shall have been required to maintain the Premises under this Lease. Tenant shall not be obligated to repair any damage which Landlord is required to repair under Article Eleven (Damage or Destruction). Except for improvements made prior to the Commencement Date, Landlord may require Tenant to remove any alterations, additions or improvements (whether or not made with Landlord’s consent) prior to the expiration of this Lease and to restore the Premises to their prior condition, all at Tenant’s expense. With respect to any alterations, additions or improvements which require Landlord’s approval, at the time of such approval, Landlord shall specify if Tenant shall not be required to remove the same, and such items shall become Landlord’s property and shall be surrendered to Landlord upon the expiration or earlier termination of this Lease, except that Tenant may remove any of Tenant’s machinery or equipment which can be removed without damage to the Property. Tenant shall repair, at Tenant’s expense, any damage to the Property caused by the removal of any such machinery or equipment. In no event, however, shall Tenant remove any of the following materials or equipment (which shall be deemed Landlord’s property), without Landlord’s prior written consent; unless the same shall have been installed by Tenant at its expense: any power wiring or wiring panels; lighting or lighting fixtures; wall coverings; drapes, blinds or other window coverings; carpets or other floor coverings; heaters, air conditioners or any other heating or air conditioning equipment; fencing or security gates; or other similar building operating equipment.
Article 11DAMAGE OR DESTRUCTION
11.01 Damage to Premises.
11.02 Temporary Reduction of Rent. If the Property shall be destroyed or damaged by casualty and Landlord shall determine to repair or restore the Property pursuant to the provisions of this Article Eleven, any Rent payable during the period of such damage, repair and/or restoration shall be reduced according to the degree, if any, to which Tenant’s use of the Premises shall be impaired. Except for such possible reduction in Base Rent, insurance premiums and Real Property Taxes, Tenant shall not be entitled to any compensation, reduction or reimbursement from Landlord as a result of any damage, destruction, repair, or restoration of the Property.
11.03 Waiver. Tenant waives the protection of any statute, code or judicial decision which shall grant a tenant the right to terminate a lease in the event of the damage or destruction of the leased property and the provisions of this Article Eleven shall govern the rights and obligations of Landlord and Tenant in the event of any damage or destruction of or to the Property.
Article 12CONDEMNATION
12.01 Condemnation. If more than twenty percent (20%) of the floor area of the Premises or more than twenty-five percent (25%) of the parking on the Property shall be taken by eminent domain, either Landlord or Tenant may terminate this Lease as of the date the condemning authority takes title or possession, by delivering notice to the other within ten (10) days after receipt of written notice of such taking (or in the absence of such notice, within ten (10) days after the condemning authority shall take title or possession). If neither Landlord nor Tenant shall terminate this Lease, this Lease shall remain in effect as to the portion of the Premises not taken, except that the Base Rent shall be reduced in proportion to the reduction in the floor area of the Premises. If this Lease shall be terminated, any condemnation award or payment shall be distributed to the Landlord. Tenant shall have no claim against Landlord for the value of the unexpired lease term or otherwise. So long as it does not interfere with any claim made by Landlord against the condemning authority. Tenant shall be expressly permitted by the Landlord to make a claim to the condemning authority for moving expenses and the value of any leasehold fixtures or improvements paid for directly by Tenant.
Article 13ASSIGNMENT AND SUBLETTING
13.01 Landlord’s Consent Required. No portion of the Premises or of Tenant’s interest in this Lease shall be acquired by any other person or entity, whether by sale, assignment, mortgage, sublease, transfer, operation of law, or act of Tenant, without Landlord’s prior written consent, which consent shall be provided to Landlord at least thirty (30) days in advance. Landlord shall have the right to grant or withhold its consent as
provided in Section 13.04 below. Any attempted transfer without consent shall be void and shall constitute a non‑curable breach of this Lease.
13.02 No Release of Tenant. No assignment or transfer, including any transfer under Section 13.05 hereof, shall release Tenant or change Tenant’s primary liability to pay the Rent and to perform all other obligations of Tenant under this Lease. Landlord’s acceptance of Rent from any other person shall not be a waiver of any provision of this Article Thirteen. Consent to one transfer shall not be deemed a consent to any subsequent transfer or a waiver of the obligation to obtain consent on subsequent occasions. If Tenant’s assignee or transferee shall default under this Lease, Landlord may proceed directly against Tenant without pursuing remedies against the assignee or transferee. Landlord may consent to subsequent assignments or modifications of this Lease by Tenant’s transferee without notifying Tenant or obtaining its consent, and such action shall not release Tenant from any of its obligations or liabilities under this Lease as so assigned or modified.
13.03 Offer to Terminate. Except as provided in Section 13.05 below, Tenant shall desire to assign this Lease or sublease all or any part of the Premises, Tenant shall offer to Landlord in writing, the right to terminate this Lease as of the date specified in the offer. If Landlord shall elect in writing to accept the offer to terminate within twenty (20) days after receipt of notice of the offer, this Lease shall terminate as of the date specified in such offer and all the terms and provisions of this Lease governing termination shall apply. If Landlord shall not so elect, Tenant shall then comply with the provisions of this Article Thirteen applicable to such assignment of sublease.
13.04 Landlord’s Consent. Tenant’s request for consent under Section 13.01 shall set forth the details of the proposed sublease, assignment or transfer, including the name, business and financial condition of the prospective transferee, financial details of the proposed transaction (e.g., the term of and the rent and security deposit payable under any proposed assignment or sublease), and any other information Landlord deems relevant. Landlord shall have the right to withhold consent, reasonably exercised, or to grant consent, based on the following factors: (i) the business of the proposed assignee or subtenant and the proposed use of the Premises; (ii) the net worth and financial condition of the proposed assignee or subtenant; (iii) Tenant’s compliance with all of its obligations under this Lease; and (iv) such other factors as Landlord may reasonably deem relevant. So long as Section 13.05 does not apply, if Tenant shall assign or sublease, the following shall apply: Tenant shall pay to Landlord as Additional Rent fifty percent (50%) of the Proceeds (defined below) on such transaction (such amount being Landlord’s share) as and when received by Tenant, unless Landlord shall give notice to Tenant and the assignee or subtenant that Landlord’s Share shall be paid by the assignee or subtenant to Landlord directly. Proceeds shall mean (a) all rent and all fees and other consideration paid for or in respect of the assignment or sublease, including reasonable fees under any collateral agreements less (b) the rent and other sums payable under this Lease (in the case of a sublease of less than all of the Premises, allocable to the subleased premises) and all costs and expenses directly incurred by Tenant in connection with the execution and performance of such assignment or sublease for reasonable real estate broker’s commissions and reasonable costs of renovation or construction of tenant improvements required under such assignment or sublease. Tenant shall be entitled to recover such reasonable costs and expenses before Tenant shall be obligated to pay Landlord’s Share to Landlord. Tenant shall provide Landlord a written statement certifying all amounts to be paid from any assignment or sublease of the Premises within thirty (30) days after the transaction shall be signed and from time to time thereafter on Landlord’s request, and Landlord may inspect Tenant’s books and records to verify the accuracy of such statement. On written request, Tenant shall promptly furnish to Landlord copies of all the transaction documentation, all of which shall be certified by Tenant to be complete, true and correct. Tenant shall promptly reimburse Landlord for all legal costs and expenses incurred by Landlord in connection with a request for a sublease or assignment of this Lease.
13.05 Assignment/Sublease to Affiliates. Notwithstanding anything in this Article 13 to the contrary, Tenant may assign this Lease or sublet all or any portion of the Premises without the prior written consent of Landlord to Tenant’s Affiliate (as hereinafter defined) provided that: (a) Tenant is not at such time, and such
Affiliate on the effective date of such assignment or sublease will not be, in monetary or material non-monetary default hereunder; (b) such Affiliate shall execute an instrument in writing assuming by assignment the terms of this Lease or acknowledging that such sublease is subject and subordinate to all of the terms and conditions of this Lease; and (c) all documents and information required hereunder shall be delivered by Tenant to Landlord at least thirty (30) days prior to the effective date of such assignment or sublease, and (d) in the case of an assignment, such Affiliate has a Net Worth at least equal to or greater $10,000,000.00. For purposes of this Article 13, the term “Affiliate” shall mean (i) any corporation or other entity succeeding to Tenant’s business or a substantial part thereof whether by merger, consolidation or acquisition of the stock or assets of Tenant or otherwise, or (ii) any entity which controls, is controlled by, or is under common control with, the original named Tenant under this Lease. For purposes of this Article 13, the term “Net Worth” with respect to any entity shall mean the value of its assets plus equity, less liabilities, with the book carrying value of any preferred stock included as part of equity.
Article 14DEFAULTS AND REMEDIES
14.01 Covenants and Conditions. Tenant’s performance of each of Tenant’s obligations under this Lease is a condition as well as a covenant. Tenant’s right to continue in possession of the Premises is conditioned upon such performance. Time is of the essence in the performance by Tenant of all covenants and conditions.
14.02 Defaults. Each of the following shall be an “Event of Default” under this Lease:
14.03 Remedies. On the occurrence of an Event of Default by Tenant, Landlord may, at any time thereafter, with or without notice or demand (except as provided in Section 14.02) and without limiting Landlord in the exercise of any right or remedy which Landlord may have:
14.04 Automatic Termination, Damages. Notwithstanding any other term or provision hereof to the contrary, this Lease shall terminate on the occurrence of any act which affirms the Landlord’s intention to terminate this Lease as provided in Section 14.03 hereof, including the filing of an unlawful detainer action against Tenant. On any termination. Landlord’s damages for default shall include all costs and fees, including reasonable attorneys’ fees that Landlord shall incur in connection with the filing, commencement, pursuing and/or defending of any action in any bankruptcy court or other court with respect to this Lease, the obtaining of relief from any stay in bankruptcy restraining any action to evict Tenant, or the pursuing of any action with respect to Landlord’s right to possession of the Premises. All such damages suffered (apart from Base Rent and other Rent payable hereunder) shall constitute pecuniary damages which shall be reimbursed to Landlord prior to assumption of this Lease by Tenant or any successor to Tenant in any bankruptcy or other proceedings.
14.05 Cumulative Remedies. Except as otherwise expressly provided herein, any and all rights and remedies which Landlord may have under this Lease and at law and equity shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time to the greatest extent permitted by law.
Article 15PROTECTION OF LENDERS
15.01 Subordination. At Landlord’s election, this Lease shall be automatically subordinate to any ground lease, deed of trust or mortgage encumbering the Property, any advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Tenant shall cooperate with Landlord and any lender which shall acquire a security interest in the Property or this Lease. Tenant shall execute such further documents and assurances as such lender may reasonably require, provided that Tenant’s obligations under this Lease shall not be increased in any material way (the performance of ministerial acts shall not be deemed material), and Tenant shall not be deprived of its rights under this Lease. If any ground lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of its ground lease, deed of trust or mortgage and gives written notice thereof to Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or mortgage whether this Lease is dated prior or subsequent to the date of said ground lease, deed of trust or mortgage or the date of recording thereof.
15.02 Attornment. If Landlord’s interest in the Property is acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or successor to Landlord’s interest in the Property and recognize such transferee or successor as Landlord under this Lease. Tenant waives the protection of any statute or rule of law which shall give Tenant any right to terminate this Lease or surrender possession of the Premises upon the transfer of Landlord’s interest.
15.03 Signing of Documents. Within forty‑five (45) days of the execution of this Lease, Landlord shall provide to Tenant a commercially reasonable form, acceptable to Landlord’s lender, of subordination, non‑disturbance and attornment agreement for Tenant’s review and execution. Further, each party to this Lease shall sign and deliver any additional instrument or documents necessary or appropriate to evidence the foregoing.
15.04 Estoppel Certificates. Within ten (10) days after Landlord’s request, Tenant shall execute, acknowledge and deliver to Landlord a written statement certifying: (i) that none of the terms or provisions of this Lease have been changed (or if they have been changed, stating how they have been changed); (ii) that this
Lease has not been canceled or terminated; (iii) the last date of payment of the Base Rent and other charges and the time period covered by such payment; (iv) that Landlord is not in default under this Lease (or if Landlord is claimed to be in default, setting forth such default in reasonable detail); and (v) such other information with respect to Tenant or this Lease as Landlord may reasonably request or which any prospective purchaser or encumbrancer of the Property may reasonably require. Landlord may deliver any such statement by Tenant to any prospective purchaser or encumbrancer of the Property, and such purchaser or encumbrancer may rely conclusively upon such statement as true and correct. If Tenant shall not deliver such statement to Landlord within such ten (10) day period, Landlord, and any prospective purchaser or encumbrancer, may conclusively presume and rely upon the following statements as facts: (i) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord, (ii) that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (iii) that not more than one month’s Base Rent or other charges have been paid in advance; and (iv) that Landlord is not in default under this Lease. In such event, Tenant shall be estopped from denying the truth of such statements.
15.05 Tenant’s Financial Condition. Within ten (10) days after request from Landlord from time to time, Tenant shall deliver to Landlord Tenant’s audited financial statements for the latest available two (2) fiscal years as may then be in Tenant’s possession. Such financial statements may be delivered to Landlord’s mortgagees and lenders and prospective mortgagees, lenders and purchasers. Tenant represents and warrants to Landlord that each such financial statement shall be materially true and accurate as of the date of such statement. All financial statements shall be confidential and shall be used only for the purposes set forth in this Lease.
Article 16LEGAL COSTS
16.01 Legal Proceedings. In any enforcement proceeding brought by either party with respect to this Lease, the non-prevailing party will pay to the prevailing party in such proceeding all costs, including reasonable attorneys’ fees and court costs incurred by such other party with respect to such proceeding and any appeals therefrom.
Article 17MISCELLANEOUS PROVISIONS
17.01 Signage. Tenant shall be permitted to have (i) a sign panel on the pylon sign located in front of the Building, and (ii) standard signage identifying Tenant at the primary entry of the Premises and at the point designated for Tenant’s shipping and receiving activities. All signage installed by Tenant shall be subject to the prior written approval of Landlord and any approvals required by Central Florida Research Park. Further, Tenant shall be responsible for all costs and expenses with respect to its signage, including, installation and maintenance costs.
17.02 Non‑Discrimination. Tenant agrees that it will not permit any discrimination against, or segregation of, any person or group of persons on the basis of race, color, sex, creed, national origin or ancestry in the subleasing, transferring, occupancy, tenure or use of the Premises or any portion thereof. Landlord agrees that it will not permit any discrimination against, or segregation of, any person or group of persons on the basis of race, color, sex, creed, national origin or ancestry in the leasing and management of the Premises or any portion thereof.
17.03 Landlord’s Liability; Certain Duties.
17.04 Severability. A determination by a court of competent jurisdiction that any provision of this Lease or any part thereof is illegal or unenforceable shall not cancel or invalidate the remainder of such provision of this Lease, which shall remain in full force and effect.
17.05 Interpretation. The captions of the Articles or Sections of this Lease are not a part of the terms or provisions of this Lease. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter genders shall each include the other, in any provision relating to the conduct, acts or omissions of Tenant, the term “Tenant” shall include Tenant’s agents, employees, contractors, invitees, successors or others using the Premises with Tenant’s expressed or implied permission. This Lease shall not, and nothing contained herein, shall create a partnership or other joint venture between Landlord and Tenant.
17.06 Incorporation of Prior Agreements; Modifications. This Lease is the only agreement between the parties pertaining to the lease of the Premises and no other agreements shall be effective. All amendments to this Lease shall be in writing and signed by all parties. Any other attempted amendment shall be void.
17.07 Notices. All notices, requests and other communications required or permitted under this Lease shall be in writing and shall be personally delivered or sent by certified mail, return receipt requested, postage prepaid or by a national overnight delivery service which maintains delivery records. Notices to Tenant shall be delivered to Tenant’s Address for Notices. Notices to Landlord shall be delivered to Landlord’s Address for Notices. All notices shall be effective upon delivery (or refusal to accept delivery). Either party may change its notice address upon written notice to the other party.
17.08 Waivers. All waivers shall be in writing and signed by the waiving party. Landlord’s failure to enforce any provision of this Lease or its acceptance of Rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound by or to the conditions of such statement.
17.09 No Recordation. Tenant shall not record this Lease. Either Landlord or Tenant may require that a notice, short form or memorandum of this Lease executed by both parties be recorded. The party requiring such recording shall pay all transfer taxes and recording fees.
17.10 Binding Effect; Choice of Law. This Lease shall bind any party who shall legally acquire any rights or interest in this Lease from Landlord or Tenant, provided that Landlord shall have no obligation to Tenant’s successor unless the rights or interests of Tenant’s successor are acquired in accordance with the terms of this Lease. The laws of the state in which the Property is located shall govern this Lease.
17.11 Corporate Authority; Partnership Authority. If Tenant is a corporation, each person signing this Lease on behalf of Tenant represents and warrants that (s)he has full authority to do so and that this Lease binds the corporation. Within thirty (30) days after this Lease is signed, Tenant shall deliver to Landlord a certified copy of a resolution of Tenant’s Board of Directors authorizing the execution of this Lease or other evidence of such authority reasonably acceptable to Landlord. If Tenant is a partnership or limited liability company, each person or entity signing this Lease for Tenant represents and warrants that he or it is a general partner of the partnership or a manager or managing member of the company, that (s)he or it has full authority to sign for the partnership and that this Lease binds the partnership or company and all general partners of the partnership or the company and its members. Within thirty (30) days after this Lease is signed, Tenant shall deliver to Landlord a copy of Tenant’s recorded statement of partnership or certificate of limited partnership or certificate of formation or organization.
17.12 Intentionally omitted.
17.13 Force Majeure. Other than payment of Rent, if either Landlord or Tenant cannot perform any of its obligations due to events beyond their respective reasonable control, the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond reasonable control include, but are not limited to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or other casualty, shortages of labor or material, government regulation or restriction and weather conditions.
17.14 Execution of Lease. This Lease may be executed in counterparts and, when all counterpart documents are executed, the counterparts shall constitute a single binding instrument. Landlord’s delivery of this Lease to Tenant shall not be deemed to be an offer to lease and shall not be binding upon either party until executed and delivered by both parties.
17.15 Survival. All representations and warranties of Landlord and Tenant, and all obligations of Tenant to pay Additional Rent hereunder, shall survive the termination of this Lease.
17.16 Examination of Lease. Submission of this Lease to Tenant shall not constitute an option to lease, and this Lease shall not be effective until execution and delivery by both Landlord and Tenant.
17.17 Security Deposit. Upon execution of this Lease by Tenant, Tenant shall pay to Landlord a Security Deposit in the amount set forth in Section 1.13, hereinabove, to be held by Landlord for the faithful performance by Tenant of Tenant’s covenants and obligations hereunder, it being expressly understood that the Security Deposit shall not be considered as an advance payment of Rent or as a measure of Landlord’s damages in the event of a default by Tenant. If at any time during the Lease Term hereof, or the Lease Term as it may be extended, an Event of Default shall have occurred in connection with payment of Rent or any other sum due Landlord as Additional Rent, Landlord may, but shall not be obligated to, apply all or part of the Security Deposit for such payment. Landlord may also apply all or part of the Security Deposit to repair damages to the Premises during or upon the termination of the tenancy created by this Lease. In such event, Tenant shall, on demand, pay to Landlord a like sum to replenish the Security Deposit. If Tenant is not in default at the termination of this Lease, then Landlord shall promptly return the Security Deposit to Tenant. Landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on the Security Deposit.
Landlord and Tenant agree that Landlord shall be entitled to immediately endorse and cash Tenant’s Rent and Security Deposit check(s) accompanying this Lease. It is further agreed and understood that such action shall not guarantee acceptance of this Lease by Landlord, but in the event Landlord does not accept this Lease, Tenant’s Rent and Security Deposit checks so delivered shall be refunded in full to Tenant. Notwithstanding the foregoing, the Security Deposit shall reduce as follows: (i) if Tenant has not been in default at any time under this Lease, on the thirty‑sixth (36th) month of the Lease Term the Security Deposit shall reduce to two (2) month’s Base Rent to be held for the remainder of the Lease Term; (ii) if Tenant shall receive a funding infusion equal to or greater than Thirty Million and 00/100 Dollars ($30,000,000.00) (subject to the review of documentation evidencing same by Landlord) (“Tenant Funding”) and Tenant has not been in default at any time under this Lease, within forty-five (45) days following Landlord’s approval of such documentation the Security Deposit shall reduce to two (2) month’s Base Rent to be held for the remainder of the Lease Term; or (iii) in the event Tenant has received the Tenant Funding, Landlord has approved same and Tenant has not been in default at any time under this Lease, on the thirty‑sixth (36th) month of the Lease Term the Security Deposit shall reduce to one (1) month’s Base Rent to be held for the remainder of the Lease Term.
17.18 Limitation of Warranties. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, and there are no warranties which extend beyond those expressly set forth in this Lease. Without limiting the generality of the foregoing, Tenant expressly acknowledges that Landlord has made no warranties or representations concerning any hazardous materials or other environmental matters affecting any part of the Property and Landlord hereby expressly disclaims and Tenant waives any express or implied warranties with respect to any such matters.
17.19 No Other Brokers. Tenant represents and warrants to Landlord that the Brokers are the only agents, brokers, finders or other parties with whom Tenant has dealt who may be entitled to any commission or fee with respect to this Lease or the Premises or the Property. Tenant agrees to indemnify and hold Landlord harmless from any claim, demand, cost or liability, including, without limitation, attorneys’ fees and expenses, asserted by any party other than the Brokers based upon dealings of that party with Tenant. Landlord agrees to indemnify and hold Tenant harmless from any claim, demand, cost or liability, including, without limitation, attorneys’ fees and expenses, asserted by any party other than the Brokers based upon dealings of that party with Landlord.
17.20 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.
17.21 Central Florida Research Park. Tenant hereby acknowledges that (i) the Building is located in the Central Florida Research Park (the “Research Park”) and (ii) this Lease is subject to the deed restrictions (the “Deed Restrictions”) affecting the Research Park. Tenant hereby agrees to (a) obtain any necessary approvals required by the Research Park in connection with Tenant’s business in the Premises, (b) complete, execute and deliver any applicable forms or documents requested or required by the Research Park to comply with the Deed Restrictions and (c) comply with any and all rules and regulations established or modified from time to time by the Research Park.
Article 18RENEWAL OPTION
Article 19RIGHT OF FIRST REFUSAL
Article 20OPTION TO TERMINATE