<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
<TABLE>
<C> <S>
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________
</TABLE>
COMMISSION FILE NO.: 0-21669
DIGITAL LIGHTWAVE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 95-4313013
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
</TABLE>
601 CLEVELAND STREET, FIFTH FLOOR
CLEARWATER, FLORIDA 33755
(813) 442-6677
(Address, including zip code, of principal executive offices and Registrant's
telephone number, including area code)
---------------------
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act: COMMON STOCK,
$0.0001 PAR VALUE PER SHARE
---------------------
Indicate by check mark whether Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter periods that Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Report or any amendment to this
Report. [X]
The aggregate market value of Registrant's voting stock, held by
non-affiliates, computed by reference to the average of the closing bid and
asked prices of the Common Stock as reported by Nasdaq on April 9, 1998:
$160,396,533.
The number of shares of Registrant's Common Stock issued and outstanding as
of April 9, 1998: 26,457,160.
---------------------
DOCUMENTS INCORPORATED BY REFERENCE
Registrant's definitive Proxy Statement which will be filed with the Securities
and Exchange Commission on or before April 15, 1998 in connection with
Registrant's annual meeting of stockholders to be held on May 15, 1998 is
incorporated by reference into Part III of this Report.
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<PAGE> 2
PART I
ITEM 1. BUSINESS
This Report contains certain statements of a forward-looking nature
relating to future events or the future performance of the Company. Prospective
investors are cautioned that such statements are only predictions and that
actual events or results may differ materially. In evaluating such statements,
prospective investors should specifically consider various factors identified in
this Report, including the matters set forth below under the caption "Risk
Factors," which could cause actual results to differ materially from those
indicated by such forward-looking statements.
A glossary of terms used in this Report appears at the end of this Item 1.
GENERAL
Digital Lightwave develops, manufactures and sells advanced computer
systems that provide information concerning the performance of fiberoptic (or
"lightwave") telecommunications networks and transmission equipment. The
Company's product, the ASA 312, is a portable software-based network information
computer that is designed to outperform conventional hardware-based network test
instruments. The ASA 312 is lightweight, compact and easily operated through a
touch sensor over a full color display. The ASA 312 enables users to understand
and process information, simultaneously and without interruption, from
telecommunications networks utilizing: (i) the legacy T-Carrier protocol at
rates DS-0, DS-1 and DS-3; (ii) the lightwave SONET protocol at rates OC-1, OC-3
and OC-12; and (iii) the ATM protocol.
The Company began shipping the ASA 312 in February 1996. For the year ended
December 31, 1997, the Company shipped 275 ASA 312 units to more than 40
customers, including: (i) InterExchange Carriers ("IXCs"); (ii) Regional Bell
Operating Companies ("RBOCs"); (iii) Competitive Access Providers ("CAPs"); (iv)
independent telephone companies; (v) network equipment manufacturers; (vi)
equipment leasing companies; and (vii) private network operators.
The Company was incorporated in California on October 12, 1990 under the
name Digital Lightwave, Inc., and reincorporated in Delaware on March 18, 1996
through its merger into a newly formed Delaware corporation. Unless the context
otherwise requires, as used in this Report the "Company" and "Digital Lightwave"
refer to Digital Lightwave, Inc., a Delaware corporation, and its predecessor
entity. The Company's principal executive offices are located at 601 Cleveland
Street, Fifth Floor, Clearwater, Florida 33755; its telephone and facsimile
numbers are 813.442.6677 and 813.442.5660; its e-mail address is
[email protected]; and its URL is http://www.lightwave.com.
TECHNOLOGY
The following core technologies are used in the ASA 312 and provide a basis
for certain of the Company's products in development: (i) a software operating
environment which runs over a MS-DOS platform; (ii) programs which operate the
Company's firmware and hardware; (iii) graphical user interface programs running
in a windowed environment; (iv) Network Protocol Translators ("NPTs"), which are
modular gate arrays which logically process discrete network information from
signals at specific bandwidths and specific protocols; and (v) Network Protocol
Processors ("NPPs"), which are modular electronic assemblies for the processing
of information encoded in a specific protocol over a range of bandwidth. The
Company's software is written in object-oriented code and is designed to provide
users of the ASA 312 with an intuitive graphical user interface.
NPTs supply information as to each bit or specified groups of bits being
transported in order to identify and process information concerning the overhead
and payload carried by network transmissions. NPTs are combined with a
microprocessor, discrete integrated circuits and other firmware in NPPs. NPPs
interface, frame and process network information from a number of protocols and
transmission speeds. NPPs also can insert user-programmable payloads and
user-specified overhead into a transmission.
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In order to allow its customers to work simultaneously with different
bandwidths and protocols, the Company has developed a non-blocking switch matrix
and applications software which allow the Company's customers to "frame up" on a
given signal, multiplex or demultiplex the signal into different transmission
speeds and map the signal into different protocols. These functions allow
customers to derive information concerning the performance of the network under
various existing or potential conditions.
PRODUCTS
Network Information Computers. The Company currently manufactures and
sells the ASA 312, a portable network information computer which enables users
to access and process information concerning the performance of
telecommunications networks and transmission equipment. The ASA 312 was designed
to displace existing network test instruments by incorporating their functions
into a software-based information processing system, adding additional functions
and improving price/performance. With the ASA 312, telephone companies and other
operators of large telecommunications networks, as well as manufacturers of
network transmission and cross-connect equipment, are able to (i) verify and
manage information concerning the transmission of voice, data, image and video
traffic and (ii) plan for and implement network expansion more effectively.
Telecommunications equipment manufacturers also use the ASA 312 in designing,
engineering and manufacturing their products as well as in installing their
products in the networks of their customers and providing ongoing customer
support.
The ASA 312 generates, transmits, receives, interleaves, deinterleaves,
multiplexes, demultiplexes, maps, demaps and processes legacy T-Carrier
electronic signals and SONET and ATM lightwave signals. It provides access to
T-Carrier, SONET and ATM signals and their status and control overhead. The ASA
312's graphical user interface is a touch sensor over a large color display
which provides simple and intuitive windowed graphics and menus. The ASA 312 may
be accessed and operated remotely by modem or through direct connection to an
Ethernet LAN.
Remote Access Agents. The Company has developed prototypes for a series of
Remote Access Agents which are modular hardware/software platforms that are
designed to provide network operators with real-time information concerning
performance of the network segments where the Agents have been installed. Remote
Access Agents provide performance and quality data to the network operator
through a standard operations interface to allow central monitoring and
administration. The Remote Access Agents incorporate technology developed by the
Company which includes advanced hardware technology that accesses bits in
lightwave and legacy telecommunications transmissions, a non-blocking switch
matrix that maps signals into different transmission speeds and protocols, and
object-oriented software that controls user-selectable features accessible
through Windows OS or other user environments.
SALES, MARKETING AND CUSTOMER SUPPORT
Sales. The Company markets its products to telecommunications service
providers and network equipment manufacturers through a direct sales force
(consisting of 17 employees as of December 31, 1997). The Company's sales
organization of 32 employees also includes managers, sales engineers and sales
administrative staff based at the Company's principal executive offices. The
primary functions of the Company's direct sales force are (i) to ensure that
existing and potential customers in each territory are being regularly
contacted, (ii) to differentiate the features and capabilities of the Company's
products from competitive offerings, (iii) to assist customers with the
implementation of the Company's products and (iv) to serve as a direct link to
assure quality and timely customer support. In addition, the Company believes
that its direct sales staff helps the Company to monitor changing customer
requirements, as well as the development of industry standards.
Marketing. In marketing the ASA 312, the Company focuses on the divisions
of telecommunications service providers that are responsible for planning and
installing extensions of the network. In marketing the Remote Access Agents, the
Company has directed its preliminary marketing efforts towards the strategic
planning divisions of telecommunications service providers and private network
operators in order to define customer requirements. The Company seeks to build
awareness of its products through a variety of marketing
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channels and methodologies. The Company participates in industry trade shows and
conferences and makes direct mailings to targeted potential customers.
Customer Support. All service, repair and technical support are performed
at the Company utilizing sub-assemblies and components obtained from the
Company's regular sources of supply. The Company's technical support engineers
are trained in the hardware and software incorporated in its products, as well
as the networks and transmission equipment operated by its customers. The
Company offers technical support to its customers 24 hours a day, 7 days a week,
via a toll-free hotline and through paging systems for all support personnel.
The Company offers a three-year limited warranty on all components of its
products, other than the laser transmitter unit, which has a one-year limited
warranty, and software and firmware, which have a 90-day limited warranty.
PRODUCTION
The Company's manufacturing operations consist primarily of material
planning and procurement, final assembly, software loading, testing and quality
assurance. The Company's operational strategy relies on outsourcing of
manufacturing to reduce fixed costs and to provide flexibility in meeting market
demand. The Company currently subcontracts component procurement and kitting and
printed circuit board manufacture and electronic module assembly to companies
that specialize in these services. The Company takes the electronic assemblies
produced by its contract electronic assembler and inserts them into product
enclosures in combination with the Company's software.
In connection with its outsourcing strategy, the Company is seeking to
secure additional sources of supply, including additional contract subassembly
and component manufacturers. The Company has experienced in the past, and may in
the future experience, problems with its contract manufacturers, in areas such
as quality, quantity and on-time delivery. In addition, the Company may in the
future experience pricing pressure from its contract manufacturers.
The Company uses a rolling six-month forecast based on anticipated product
orders to determine its general material and component requirements. Lead times
for materials and components ordered by the Company vary significantly, and
depend on factors such as the specific supplier, purchase terms and demand for a
component at a given time. Currently, the Company acquires materials and orders
certain standard subassemblies based on the Company's forecast. Upon receipt of
firm orders from customers, the Company assembles fully-configured systems and
subjects them to a number of tests before shipment. If orders do not match
forecasts, the Company may have excess or inadequate inventory of certain
materials and components.
Although the Company generally uses standard parts and components for its
products, several key components used in the manufacture of its products are
currently purchased only from a sole-source or from single or limited sources.
At present, the Company's only sole-sourced component is a SONET overhead
terminator. Limited-sourced components used in the ASA 312 and the Remote Access
Agents include a single board computer, a power supply, a touch sensor and
controller, plastic housing units and other discrete components. The Company
generally does not have long-term agreements with any of these sole or limited
sources of supply. Any interruption in the supply of any of these components, or
the inability of the Company to procure these components from alternate sources
at acceptable prices and within a reasonable time, could have a material adverse
effect upon the Company's business, financial condition and results of
operations. Qualifying additional suppliers is time consuming and expensive and
the likelihood of errors could be greater with new suppliers. See "Risk
Factors-Substantial Increase in Manufacturing Operations; Dependence on Contract
Manufacturing and Limited Source Suppliers."
ENGINEERING AND DEVELOPMENT
The Company has organized its research and development efforts into the
following three main groups: (i) the microelectronics group is devoted to the
further development of hardware and firmware technologies; (ii) the software
development group is devoted to developing new applications software; and (iii)
the hardware development group is devoted to reducing further the size and
weight of the Company's products, designing printed circuit boards for new
applications and developing enhancements to streamline production.
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<PAGE> 5
The Company intends to increase the size of its technical staff by adding
microelectronic and software engineers, including those with particular
understanding of international transmission protocols and standards.
As of December 31, 1997, the Company maintained an engineering and
development department of 66 individuals. During fiscal years 1997, 1996 and
1995, the amounts spent on Company sponsored engineering and development
activities were approximately $5.3 million, $2.4 million and $1.5 million,
respectively.
INTELLECTUAL PROPERTY
The Company relies on a combination of patent, trade secret, copyright and
trademark protection and non-disclosure agreements to protect its core
technology. Although the Company has pursued and intends to continue to pursue
patent protection of certain aspects of its technology that it considers
important, the Company believes that its success will be largely dependent on
its reputation for technology, product innovation, affordability, marketing
ability and response to customers' needs. As of the date of this Report, the
Company has several patent applications pending in the United States relating to
the ASA 312 network information computer. Two such applications have been
granted notices of allowance by the United States Patent and Trademark Office.
Digital Lightwave also intends to apply for patents for its Remote Access Agent
technology. There can be no assurances, however, that any of such future or
pending applications will be successful.
The Company believes that the rapid rate of technological change and the
relatively long development cycle for integrated electronic assemblies are also
significant factors in the protection of the Company's intellectual property. As
part of its confidentiality procedures, the Company generally enters into non-
disclosure agreements and proprietary information and inventions agreements with
its employees and suppliers, and limits access to and distribution of its
proprietary information. Despite these precautions, it may be possible for a
third party to copy or otherwise obtain and use the Company's technology without
authorization. Accordingly, there can be no assurance that the Company will be
successful in protecting its intellectual property or that the Company's rights
will preclude competitors from developing products or technology equivalent or
superior to those of the Company.
The telecommunications industry is characterized by the existence of a
large number of patents and frequent litigation based on allegations of patent
infringement. Although the Company is not aware of any infringement or claimed
infringement by its products or technology of the proprietary rights of others,
there can be no assurance that third parties will not assert infringement claims
against the Company in the future or that any such assertions will not result in
costly litigation or require the Company to obtain a license to intellectual
property rights of such parties. There can be no assurance that any such
licenses would be available on terms acceptable to the Company, if at all.
Furthermore, litigation could result in substantial cost to and diversion of
efforts by the Company regardless of outcome. Any infringement claims or
litigation against the Company could materially and adversely affect the
Company's business, financial condition and results of operations. In addition,
the Company's growth strategy includes a plan to enter international markets and
the laws of some foreign countries do not protect the Company's proprietary
rights regarding its products to the same extent as do the laws of the United
States. See "Risk Factors Dependence on Proprietary Technology."
CUSTOMERS
The Company has pursued a policy of involving key customers in the
evaluation of products in development and continually solicits suggestions from
customers regarding additional desirable features of products which it has
introduced or plans to develop. Because the Company's products are software
based and remotely accessed, the Company has generally been able to satisfy
requests for additional feature sets by downloading software upgrades to its
products in the field.
For the year ended December 31, 1997, the Company's five largest customers
accounted for approximately 69% of total revenues, with WorldCom and its
subsidiaries accounting for 42% of total sales. For the year ended December 31,
1996, the Company's five largest customers accounted for approximately 62% of
total revenues, with MCI Communications Corporation ("MCI"), Ameritech
Corporation ("Ameritech")
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and Pacific Telesys Group ("PacTel") accounting for 23%, 19% and 15% of total
sales, respectively. No other customer accounted for more than 10% of the
Company's revenues during such periods. There can be no assurance regarding the
amount or timing of purchases by any customer in any future period. See "Risk
Factors -- Customer Concentration."
BACKLOG
The Company's backlog at December 31, 1997 was approximately $6.0 million.
Variations in the size and delivery schedules of purchase orders received by the
Company, as well as changes in customers' delivery requirements, may result in
substantial fluctuations in backlog from period to period. Accordingly, the
Company believes that its backlog cannot be considered a meaningful indicator of
future financial results.
SEASONALITY
The Company generally believes that its sales are seasonal in nature with
the largest portion of quarterly sales tied to telecom industry purchasing
patterns which usually increase during the last calendar quarter of the year.
COMPETITION
The market in which the Company's network information computers and Remote
Access Agents is offered is intensely competitive and subject to rapid change as
a result of technological developments and other factors. The Company believes
that the principal competitive factors in its market are technical resources and
expertise relating to a wide range of bandwidth and protocols, product features,
reliability, price, timeliness of new product introductions, timely adoption of
emerging industry standards, service, support, size, name recognition and
installed base.
The Company believes that there are five principal competitors which
currently offer products that compete with the ASA 312, including Hewlett
Packard Company, Tektronix Inc., Dynatech Corporation, Anritsu Corporation,
Wandel & Goltermann Technologies, Inc. and other companies which offer network
monitoring products which do not provide the capability to monitor lightwave
transmissions, the principal of which are Applied Digital Access, Inc., Network
General Corporation and Hekimian Laboratories, Inc. The companies that offer
test instruments in competition with the ASA 312 do not supply lightwave network
monitoring products. Accordingly, the Company believes that there are currently
no competitors that provide an integrated comprehensive solution to performance
monitoring transmission speeds from DS-0 through OC-12 and no providers of
portable equipment which cover the full range of features offered by the ASA
312. However, such competitors and certain prospective competitors have
significantly longer operating histories, larger installed bases, greater name
recognition and technical, financial, manufacturing and marketing resources than
the Company. In addition, a number of these competitors have long established
relationships with the Company's customers and potential customers. The Company
believes it is likely that competitors will enter the market for most if not all
of the products which the Company will offer. See "Risk Factors -- Competition."
REGULATION
The Company's products must meet industry standards and receive
certification for connection to certain public telecommunications networks prior
to their sale. In the United States, the Company's products must comply with
various regulations promulgated by the Federal Communications Commission ("FCC")
and Underwriters Laboratories. Internationally, the Company's products must
comply with standards established by telecommunications authorities in various
countries as well as with recommendations of the Consultative Committee on
International Telegraph and Telephony. In addition, certain planned products of
the Company may be required to be certified by Bell Communications Research,
Inc. ("Bellcore") in order to be commercially viable. Although the Company's
products have not been denied any regulatory approvals or certifications to
date, any future inability to obtain on a timely basis or retain domestic or
foreign regulatory
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approvals or certifications or to comply with existing or evolving industry
standards could have a material adverse effect on the Company's business,
financial condition and results of operations.
The telecommunications industry is subject to regulation in the United
States and other countries. Federal and state regulatory agencies, including the
FCC and the various state Public Utility Commissions ("PUCs") and Public Service
Commissions regulate most of the Company's domestic customers. In February 1996,
the Telecommunications Act of 1996 (the "Telecom Act") was passed. The Telecom
Act allows IXCs, RBOCs, CAPs, independent telephone companies and electric
utility companies to compete with each other to provide local and long-distance
service. The Company believes that the Telecom Act will increase the demand for
systems, software and services as telecommunications service providers respond
to the changing competitive environment by constructing new networks or
enhancing existing networks.
In addition, the FCC and a majority of the states have enacted or are
considering regulations based upon alternative pricing methods. Under
traditional rate of return pricing, telecommunications service providers were
limited to a stated percentage of profit on their investment. Under the new
method of pricing, some PUCs have relaxed or eliminated the profit cap in return
for the carrier's promise to reduce or hold service prices at current levels. In
some states, the PUCs and the carriers have further agreed, in order to win
relaxation of profit limits, that the carriers would invest large sums to
upgrade the digital and lightwave capabilities of the network. The Company
believes that the new methods of price regulation could increase the demand for
its products.
Outside the United States, telecommunications networks are primarily owned
by the government or are strictly regulated by the government. Although
potential growth rates of some international markets are higher than those of
the United States, access to such markets is often difficult due to the
established relationships between the government-owned or controlled
telecommunications operating company and its traditional indigenous suppliers.
However, there has been a global trend towards privatization and deregulation of
the state-owned telecommunications operations. The Company believes that the
current trend of privatization and deregulation will continue and that such
trend could enhance the Company's international opportunities.
EMPLOYEES
As of December 31, 1997, the Company employed a full-time staff of 208
employees, of which 66 were engineering personnel, 42 were production personnel,
44 were sales and marketing staff and 56 were administrative personnel. The
Company has agreements with all employees covering assignment of inventions and
patents to the Company and confidentiality, as well as a comprehensive security
agreement. The Company believes that its relationship with its employees is
good.
In February 1998, management implemented a plan to reduce costs and improve
operating efficiencies. In connection with this plan the Company recorded a
restructuring charge of approximately $1.0 million. The principal actions in the
1998 restructuring plan involved the elimination of approximately 20
manufacturing and administrative positions and a reorganization of reporting
lines designed to simplify the reporting and management process.
RISK FACTORS
An investment in the Common Stock involves a high degree of risk. In
addition to the other information in this Report, the following risk factors
should be considered carefully in evaluating the Company and its business. This
Report contains forward-looking statements the accuracy of which is subject to
many risks and uncertainties. The Company's actual results may differ
significantly from the results discussed in the forward-looking statements.
Factors that might cause such a difference include, but are not limited to, the
following risk factors.
Limited Operating History; Cumulative Losses. The Company commenced
shipment of its initial product, the ASA 312, in February 1996. Since its
inception in October 1990, the Company has incurred substantial costs to develop
and enhance its technology, to create, introduce and enhance its product
offerings, to establish marketing and distribution relationships, to recruit and
train a sales and marketing group and to
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build an administrative organization. Consequently, the Company has incurred
operating losses in each fiscal year through December 31, 1997. As of December
31, 1997, the Company had incurred cumulative losses of $15.0 million. The
Company's prospects must be considered in light of the risks, expenses and
difficulties frequently encountered by companies in their early stage of
development, particularly companies in new, unproven and rapidly evolving
markets. The limited operating history of the Company makes the prediction of
future results of operations difficult or impossible, and there can be no
assurance that the Company will sustain growth or achieve profitability.
Dependence on Single Product; Uncertain Market Acceptance of Planned
Products. The Company has to date derived all of its sales from its initial
product, the ASA 312. The Company expects that sales of the ASA 312 will
continue to account for a substantial portion of the Company's sales for the
foreseeable future. The market for lightwave management products is in an early
stage of development and there is uncertainty regarding the size and scope of
the market. The Company's future performance will depend on increased sales of
the ASA 312 and the successful development, introduction and market acceptance
of new and enhanced products. Although the Company has developed prototypes of
its Remote Access Agents it has not had material sales of this product. The
occurrence of undetected software or hardware errors (which frequently occur
when new products are first introduced) could result in the delay or loss of
market acceptance of the Company's products and the loss of credibility with its
customers, which could have a material adverse effect on the Company's business,
financial condition and results of operations. See "Technology," "Products,"
"Product Development" and "Competition."
Rapid Technological Change; Dependence on New Product Introductions. The
market for the Company's products is characterized by frequent new product
introductions, rapidly changing technology and continued emergence of new
industry standards, any of which could adversely affect sales of the Company's
products or render the Company's existing products obsolete. The Company's
success will depend upon its ability to develop, manufacture and sell, in a
timely fashion, new products and enhancements to its existing products that meet
changing customer requirements, gain market acceptance and satisfy emerging
industry standards. There can be no assurance that the Company will be able to
meet these objectives, and any failure to do so could have a material adverse
effect upon the Company's business, financial condition and results of
operations. See "Technology," "Products," "Intellectual Property" and
"Engineering and Development."
Competition. The market for the Company's products is intensely
competitive and subject to rapid technological change, frequent product
introductions with improved performance-to-price ratios and continued emergence
of new industry standards. In addition to its current competitors, the Company
anticipates that it will face competition from other companies as the market for
its products grows and as it releases additional and enhanced products.
Furthermore, many of the Company's large competitors offer customers a
broader product line than the Company currently offers or can be expected to
offer. Many of the Company's current and potential competitors have longer
operating histories and substantially greater financial, technical, sales,
marketing and other resources, as well as greater name recognition and larger
installed bases, than the Company. Such companies may have a competitive
advantage over the Company when selling similar products or alternative
lightwave management solutions. Increased competition could result in
significant price competition, reduced profit margins or loss of market share,
any of which could have a material adverse effect on the Company's business,
financial condition and results of operations. There can be no assurance that
the Company will be able to compete successfully against current and future
competitors. See "Competition".
Substantial Increase in Manufacturing Operations; Dependence on Contract
Manufacturing and Limited Source Suppliers. The Company is in the process of
substantially increasing its flow of materials, contract manufacturing capacity
and internal test and quality functions to respond to anticipated customer
demand for the ASA 312 and to reduce its order lead times. Any inability to
increase product flow would limit the Company's revenues, could adversely affect
the Company's competitive position and could result in cancellations of orders.
The Company's operational strategy relies on outsourcing of manufacturing. The
Company currently subcontracts component procurement and kitting and printed
circuit board manufacture and electronic module assembly to companies that
specialize in those services. The Company is seeking to
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secure additional sources of supply, including additional contract
manufacturers. At present, the Company's only sole-sourced component is a SONET
overhead terminator. Certain other key components used in the manufacture of the
Company's products are currently purchased only from single or limited sources.
Limited-source components utilized in the ASA 312 include a single board
computer, a power supply, a touch sensor and controller, plastic housing units
and other discrete components.
The Company has experienced, and may in the future experience, problems
with its various component suppliers, such as inferior quality, insufficient
quantities and late delivery. There can be no assurance that such problems will
not generate material liabilities for the Company or adversely impact the
Company's relations with its customers. In addition, the Company may in the
future experience pricing pressure from its contract manufacturers. There can be
no assurance that the Company will manage its contract manufacturers effectively
or that these manufacturers will meet the Company's future requirements for
timely delivery of products of sufficient quality and quantity. The Company
intends to introduce certain new products and product enhancements in 1998,
which may require that the Company rapidly achieve volume production by
coordinating its efforts with those of its suppliers and contract manufacturers.
The inability of the Company's contract manufacturers to provide adequate
supplies of high-quality products or the loss of any of the Company's contract
manufacturers could cause a delay in the Company's ability to meet orders while
the Company identifies a replacement manufacturer and could have a material
adverse effect upon the Company's business, financial condition and results of
operations. See "Production."
Dependence on Key Personnel. The Company's success depends to a
significant degree upon the continued contributions of key management,
engineering, sales and marketing, finance and manufacturing personnel, certain
of whom would be difficult to replace. In particular, the Company believes that
its future success is highly dependent on Dr. Bryan J. Zwan, its Chairman of the
Board, Chief Executive Officer and President. The Company does not intend to
maintain key man life insurance covering its key personnel. Until 1996, the
Company was in the development stage. Most of the Company's executive officers
joined the Company during 1996 and 1997 and, therefore, have been involved only
with the most recent operating activity of the Company. The Company's success
will depend to a significant extent on the retention of these executive
officers, their successful performance and the ability of these executive
officers to integrate themselves into the Company's daily operations and for all
personnel to work effectively together as a team. See "Employees."
Management of Growth. The Company has significantly expanded its
operations over the past year and the success of the Company is dependent upon
its continued expansion, particularly in hiring additional technical and
customer support personnel, developing its sales and marketing network and
expanding its manufacturing capacity. The Company may in the future undertake
acquisitions that could present challenges to the Company's management, such as
integrating and incorporating new operations, product lines, technologies and
personnel. There can be no assurance that the Company's systems, procedures and
controls will be adequate to support the Company's future operations. Failure to
manage the Company's growth properly could have a material adverse effect on the
Company's business, financial condition and results of operations.
Anticipated Fluctuations in Operating Results. It is anticipated that as
the Company matures, the Company's sales and operating results may fluctuate
from quarter to quarter and from year to year due to a combination of factors,
certain of which are outside the control of the Company, including, among others
(i) the timing and amount of significant orders from the Company's customers,
(ii) the ability to obtain sufficient supplies of sole or limited source
components for the Company's products, (iii) the ability to attain and maintain
production volumes and quality levels for its products, (iv) the mix of
distribution channels and products, (v) new product introductions by the
Company's competitors, (vi) the Company's success in developing, introducing and
shipping product enhancements and new products, (vii) pricing actions by the
Company or its competitors, (viii) changes in material costs and (ix) general
economic conditions. Any unfavorable changes in these or other factors could
have a material adverse effect on the Company's business, financial condition
and results of operations. The Company does not anticipate that its backlog at
the beginning of each quarter will be sufficient to achieve expected revenue for
that quarter. To achieve its revenue objectives, the Company expects that it
will have to obtain orders during a quarter for shipment in that
8
<PAGE> 10
quarter. As a result of all of the foregoing, there can be no assurance that the
Company will be able to sustain profitability on a quarterly or annual basis.
See "Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations."
Dependence on Proprietary Technology. The Company's success and its
ability to compete are dependent in part upon its proprietary technology. The
Company has several patent applications pending in the United States relating to
the ASA 312 network information computer. Two of such applications have been
granted notices of allowance by the United States Patent and Trademark Office.
The Company also intends to apply for patents for its Remote Access Agent
technology. In addition, the Company relies on a combination of contractual
rights, trade secrets and copyright laws to establish and protect its
proprietary rights in its products. There can be no assurance that the patents
for which the Company has applied or intends to apply will be issued, that steps
taken by the Company to protect its technology will be adequate to prevent
misappropriation of its technology or that the Company's competitors will not
independently develop technologies that are substantially equivalent or superior
to the Company's technology. In the event that protective measures are not
successful, the Company's business, financial condition and results of
operations could be materially and adversely affected. In addition, the
Company's growth strategy includes a plan to enter international markets, and
the laws of some foreign countries do not protect the Company's proprietary
rights to the same extent as do the laws of the United States.
The Company is subject to the risk of adverse claims and litigation
alleging infringement of intellectual property rights of others. Given that
patent applications in the United States are not publicly disclosed until the
patent issues, applications may have been filed which, if issued as patents,
could relate to the Company's products. The Company's industry is characterized
by a large number of patents, some of which have broad claims which, if valid
and enforceable, would pose a risk of infringement. Although the Company is not
aware that its technology infringes on the proprietary rights of others and has
not received any notice of claimed infringements, there can be no assurance that
third parties will not assert infringement claims against the Company in the
future or that such claims will not be successful. The Company could incur
substantial costs in defending itself and its customers against any such claims,
regardless of the merits of such claims. Parties making such claims may be able
to obtain injunctive or other equitable relief which could effectively block the
Company's ability to sell its products in the United States and abroad, and
could obtain an award of substantial damages any of which could have a material
adverse effect on the Company's business, financial condition and results of
operations. In the event of a successful claim of infringement, the Company, its
customers and end-users may be required to obtain one or more licenses from
third parties. There can be no assurance that the Company or its customers could
obtain necessary licenses from third parties at a reasonable cost or at all. See
"Intellectual Property."
Customer Concentration. For the year ended December 31, 1997, the
Company's five largest customers accounted for approximately 69% of total
revenues, with WorldCom and its subsidiaries accounting for 42% of total sales.
The Company does not anticipate that its sales to this customer will continue to
be as significant in future periods as a percentage of total sales. For the year
ended December 31, 1996, the Company's five largest customers accounted for
approximately 62% of total revenues, with MCI Communications Corporation
("MCI"), Ameritech Corporation ("Ameritech") and Pacific Telesys Group
("PacTel") accounting for 23%, 19% and 15% of total sales, respectively. No
other customers accounted for sales of 10% or more during such periods. However,
the Company believes repeat sales to an existing customer is an important
measure of growing product acceptance in the highly concentrated
telecommunications industry.
The success of the Company is also dependent upon broadening its customer
base to increase its level of sales. Any reduction or delay in sales of its
products to its principal customers or the loss of one or more of the Company's
principal customers could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Customers" and
"Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations."
Product Certifications. The Company's products must meet industry
standards and receive certification for connection to certain public
telecommunications networks prior to their sale. In the United States, the
Company's products must comply with various regulations promulgated by the FCC,
Underwriters Laborato-
9
<PAGE> 11
ries, and Bellcore. Internationally, the Company's products will be required to
comply with standards established by telecommunications authorities in various
countries as well as with recommendations of the Consultative Committee on
International Telegraph and Telephony. Although the Company's products have not
been denied any regulatory approvals or certifications to date, any future
inability to obtain on a timely basis or retain domestic or foreign regulatory
approvals or certifications or to comply with existing or evolving industry
standards could have a material adverse effect on the Company's business,
financial condition and results of operations. See "Regulation."
Control by Principal Stockholder. The Company's Chairman, Chief Executive
Officer and President, together with entities affiliated with him, beneficially
owns approximately 74% of the Company's outstanding shares of Common Stock.
Accordingly, he is able to elect the Company's directors, will retain the voting
power to approve all matters requiring stockholder approval and will continue to
have significant influence over the affairs of the Company, including the power
to delay or prevent a change in control of the Company.
Factors Inhibiting Takeover. Certain provisions of the Company's charter
documents, including provisions limiting the ability of stockholders to take
action by written consent and limiting the ability of stockholders to raise
matters at a meeting of stockholders without giving advance notice, and
provisions establishing supermajority affirmative voting requirements as a
prerequisite to certain extraordinary corporate transactions, may have the
effect of delaying or preventing changes in control or management of the
Company, which could have an adverse effect on the market price of the Company's
Common Stock. The Board of Directors has authority to issue up to 20,000,000
shares of Preferred Stock and to fix the rights, preferences, privileges and
restrictions, including voting rights, of these shares without any further vote
or action by the stockholders. The rights of the holders of the Company's Common
Stock will be subject to, and may be adversely affected by, the rights of the
holders of any Preferred Stock that may be issued in the future. The issuance of
Preferred Stock could have the effect of delaying, deferring or preventing a
change in control of the Company. Furthermore, such Preferred Stock may have
other rights, including economic rights, senior to the Common Stock, and, as a
result, the issuance of such Preferred Stock could have a material adverse
effect on the market value of the Common Stock. In addition, Section 203 of the
Delaware General Corporation Law restricts certain business combinations with
any "interested stockholder" as defined by such statute.
Shares Eligible for Future Sale. Sales of a substantial number of shares
of Common Stock in the public market could adversely affect the market price for
the Company's Common Stock. Approximately 26,457,160 shares of Common Stock are
eligible for sale in the public market, subject to compliance with the
provisions of Rule 144 ("Rule 144"), promulgated under the Securities Act of
1933, as amended (the "Securities Act"). Of those shares, 20,000,000 shares of
Common Stock are held by Dr. Zwan, the Company's Chairman of the Board, Chief
Executive Officer and President. As an "affiliate" (as defined under Rule 144)
of the Company, Dr. Zwan may only sell his shares of Common Stock in the public
market in compliance with the volume limitations of Rule 144. Approximately
6,434,912 shares of Common Stock which are held by "non-affiliates" (as defined
under Rule 144) of the Company are eligible for sale in the public market
subject to the requirements of Rule 144.
Possible Volatility of Stock Price. The market price of the shares of
Common Stock is likely to be highly volatile and may be significantly affected
by factors such as actual or anticipated fluctuations in the Company's results
of operations and other factors. In addition, the stock market has from time to
time experienced significant price and volume fluctuations that have
particularly affected the market prices for the common stocks of technology
companies. These broad market fluctuations may adversely affect the market price
of the Company's Common Stock.
Litigation. As of April 9, 1998, 23 class action complaints for violations
of the Federal Securities Laws were filed in the United States District Court
for the Middle District of Florida, on behalf of purchasers of the Company's
Common Stock during certain periods in 1997 and 1998. The complaints named as
defendants the Company, Bryan J. Zwan, the Company's Chairman of the Board,
Chief Executive Officer and President, Beth A. Morris, the Company's Vice
President, Finance and Chief Financial Officer from January, 1995 to July, 1997,
Steven H. Grant, the Company's Vice President, Finance and Chief Financial
Officer, and other current and former corporate officers. The complaints allege
that the Company and certain officers and
10
<PAGE> 12
directors of the Company during the relevant time period violated Sections 10(b)
and 20(a) of the Securities Exchange Act by, among other things, issuing to the
investing public false and misleading financial statements and press releases
concerning the Company's revenues, income and earnings, which artificially
inflated the price of the Company's Common Stock. The Company believes that it
has meritorious defenses to these lawsuits and intends to defend them
vigorously. See "Item 3. Legal Proceedings."
On November 5, 1997, Hugh Brian Haney ("Plaintiff") commenced an action in
the United States District Court for the Southern District of Ohio against Bryan
J. Zwan, the Company's Chief Executive Officer, and the Company ("Defendants").
The complaint alleges violations of Section 10(b) of the Securities Exchange Act
and various common law violations by Defendants in connection with Plaintiff's
sale to the Company's predecessor in November 1995, pursuant to a previously
granted option exercisable by Zwan and/or the Company's predecessor, of 4,900
shares of stock in the Company's predecessor, an amount equivalent to 19,215,686
shares of the Company's common stock. The complaint seeks alternative forms of
relief, including, among others, (1) rescission of the sale of the shares
transferred by Plaintiff or (2) damages of not less than $235 million, together
with interest. The Company believes that it has meritorious defenses to this
lawsuit and intends to defend it vigorously. See "Item 3. Legal Proceedings."
There can be no assurance, however, that the Company will prevail in these
lawsuits and any unfavorable ruling or judgment against the Company in these
lawsuits could have a material adverse effect on the Company's business,
financial condition and results of operations.
As of April 9, 1998, the Company was not aware of any additional lawsuits
that were pending that could have a material adverse effect on the Company's
business, financial condition and results of operations.
Potential "Year 2000" Problems. It is possible that the Company's
currently installed computer systems, software products or other business
systems, or those of its suppliers or customers, will not always accept input
of, store, manipulate or output dates in the years 1999, 2000 or thereafter
without error or interruption. The Company has conducted a review of its
business systems, including its computer systems, to attempt to identify ways in
which its systems could be affected by problems in correctly processing date
information. Based on this review, the Company does not expect the Year 2000
issue to have a material adverse effect on its operations. In addition, the
Company is requesting assurances from all software vendors from which it has
purchased or from which it may purchase software that the software sold to the
Company will correctly process all date information at all times and the Company
is querying its customers and suppliers as to their progress in identifying and
addressing problems that their computer systems will face in correctly
processing date information as the year 2000 approaches and is reached. However,
there can be no assurance that the Company will identify all date-handling
problems in its business systems or those of its customers and suppliers in
advance of their occurrence or that the Company will be able to successfully
remedy problems that are discovered. The expenses of the Company's efforts to
identify and address such problems, or the expenses or liabilities to which the
Company may become subject as a result of such problems, could have a material
adverse effect on the Company's business, results of operations and financial
condition.
11
<PAGE> 13
GLOSSARY
Asynchronous -- Signals that are not generated from the same timing
reference and are therefore not identical in frequency.
ATM (asynchronous transfer mode) -- An information transfer standard that
is one of a general class of technologies that relay traffic by way of an
address contained within the first five Bytes of a standard 53-Byte-long packet
or cell. The ATM format can be used by many different information systems,
including the public telecommunications network, WANs and LANs, to deliver
traffic at varying rates, permitting the efficient delivery of enhanced data
services and multimedia, which is a mix of voice, video and data.
Bandwidth -- The range of frequencies that can be transmitted through a
medium, such as glass fibers, without distortion. The greater the bandwidth, the
greater the information-carrying capacity of such medium.
Bit -- A contraction of the term binary digit which represents a single
digit of information expressed as a 0 or 1, high or low, or yes or no.
Byte -- Abbreviation for binary term. A unit of information consisting of 8
bits. In computer processing, equivalent of a single character such as a letter
of the alphabet, a numeral or punctuation mark.
CAP (Competitive Access Provider) -- A company that provides its customers
with an alternative to the RBOC for local transport of private line, special
access and interstate transport of telecommunications service.
Cross-connect equipment -- Distribution system equipment used to terminate
and administer communication circuits. In a wire cross connect, jumper wires or
patch cords are used to make circuit connections. In an electronic cross
connect, signals are electronically switched to make circuit connections.
Demultiplex -- The process of separating two or more signals that were
previously multiplexed.
Digital -- A method of storing, processing and transmitting information
through the use of distinct electronic or optical pulses that represent the
binary digits 0 and 1. Digital transmission and switching technologies (both
fiber and microwave) employ a sequence of these pulses to represent information
as opposed to the continuously variable analog signal.
DS-0, DS-1, DS-3 -- Standard telecommunications industry digital signal
formats, which are distinguishable by bit rate (the number of binary digits (0
and 1) transmitted per second). DS-0 service has a bit rate of 64 Kbps and can
transmit one voice conversation. DS-1 service has a bit rate of 1.544 Mbps and
can transmit 24 simultaneous voice conversations. DS-3 service has a bit rate of
45 Mbps and can transmit 672 simultaneous voice conversations.
Ethernet -- A protocol commonly used on LANs.
Enhanced data services -- Products and services designed for the transport
and delivery of integrated information to include voice, data and video and any
combination thereof.
Fiber optics -- A transmission medium consisting of a core of glass or
plastic surrounded by a protective cladding of similar material, strengthening
material and an outer jacket which guides light pulses introduced into the fiber
by a light source.
Firmware -- Software that is contained semi-permanently in a hardware
device or memory and which can be rewritten.
Gate array -- A circuit that has a number of logical circuits arranged in
an array, or regular pattern, normally customized to suit a specific
application.
Gigabit per second (Gbps) -- One billion bits of information per second.
The information carrying capacity (i.e., bandwidth) of a circuit may be measured
in "gigabits per second."
Graphical user interface -- A type of display format that enables the user
to choose commands, start programs and see lists of files and other options by
pointing to pictorial representations and lists of menu items on the screen.
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<PAGE> 14
Integrated circuit (microprocessor) -- A series of miniaturized
interconnected electronic circuits inseparably associated within a
semi-conductor substrate.
Internet -- The name used to refer to the world's largest interconnected
network, consisting of thousands of networks which interchange information
through a common communications protocol.
IXC (InterExchange Carrier) -- A company providing long distance services
or service within local access and transport areas on an intrastate or
interstate basis.
Kilobit per second (Kbps) -- One thousand bits of information per second.
The information-carrying capacity (i.e., bandwidth) of a circuit may be measured
in "kilobits per second."
LAN (Local Area Network) -- A group of computers and other devices
dispersed over a relatively limited area and connected by a communications link
that enables any device to interact with any other on the network.
Legacy -- Older generations of transmission or other technologies which
continue to be utilized in telecommunications networks.
Lightwave -- Light as a communication signal over fiber-optic cable
traveling as discrete pulses, each representing one bit of digital information.
Lightwave management -- The intelligent termination, integration and
switching of lightwave communications.
Megabit per second (Mbps) -- One million bits of information per second.
The information-carrying capacity (i.e., bandwidth) of a circuit may be measured
in "megabits per second."
Multiplex -- The process of combining two or more signals for transmission
over the same circuit or channel at the same time.
Network element -- A functional entity in a network, such as a multiplexer,
a switch interface or a digital cross-connect.
Network Protocol Processors (NPPs) -- Modular electronic assemblies
containing hardware, firmware and software for the processing of information
encoded in a specific protocol over a range of bandwidth.
Network Protocol Translators (NPTs) -- Modular gate arrays or field
programmable gate arrays which logically process discrete network information
from signals at specific bandwidths and specific protocols.
Non-blocking switch matrix -- An internal switch in a system that has the
ability to switch multiple transmissions to different circuits simultaneously
without causing congestion internally in the switch.
OC-1, OC-3, OC-12, OC-48, OC-192 -- Optical carrier signaling rates,
measured in bits transmitted per second. The basic rate for OC-1 is 51.840 Mbps.
All higher levels are direct multiples of OC-1 (e.g., OC-12 = 12 times 51.840
Mbps).
OEM (Original Equipment Manufacturer) -- The maker of equipment marketed by
another vendor, usually under the name of the reseller.
Overhead -- Information carried in network transmissions, other than
payload, including routing information, error-checking characters and status and
operational information.
Packet -- A bundle of data organized for transmission which includes
control information, the data to be transmitted, and error detection bits.
Payload -- User transmitted data, including voice, data and/or video
content, which may include network management and accounting information.
PDH (Plesiochronous Digital Hierarchy) -- Two or more signals that are not
generated from the same timing reference but are nominally at the same frequency
to a defined degree of precision.
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<PAGE> 15
Protocol -- A specific set of rules, procedures or conventions relating to
the format and timing of data transmission between two devices.
RAM -- Random access memory. The primary memory in a computer which can be
overwritten with new information. Any bit in memory can be located in the same
amount of time, hence random access.
RBOCs (Regional Bell Operating Companies) -- The seven original local
telephone companies (formerly part of AT&T) established by court decree in 1982.
Remote Access Agent -- A product of the Company designed to be distributed
throughout a network to provide network operators with real-time information
concerning the network segments where the Remote Access Agent has been
installed. This product can be centrally monitored and administered.
SDH (Synchronous Digital Hierarchy) -- An electronics and network
architecture and protocol utilized on most continents other than North America
for variable optical bandwidth products which enables transmission of voice,
video and data (multimedia) at very high speeds.
SONET (Synchronous Optical Network Technology) -- An electronics and
network architecture and protocol utilized primarily in North America for
variable optical bandwidth products which enables transmission of voice, video,
and data (multimedia) at very high speeds.
Switch -- A device that opens or closes circuits or selects the paths or
circuits to be used for transmission of information. Switching is a process of
interconnecting circuits to form a transmission path between users.
Switch matrix -- A series of gate arrays or switches which provide for the
routing of signals from one circuit path to another.
T-Carrier or T-1 or T-3 -- Insulated copper wire cables which carry
electrically transmitted digital signals. A T-1 cable carries a DS-1 signal
(1.544 Mbps), and a T-3 cable carries a DS-3 signal (45 Mbps). Also, a generic
name for any of several digitally multiplexed carrier systems originally
designed to carry digitalized voice signals.
Test instruments -- Equipment that indicates the state or condition of a
signal as an example, on a fiber or metallic cable, primarily measuring level,
frequencies and faults and other conformal signal information.
Web or World Wide Web or WWW -- An Internet network that links documents by
providing hypertext links from server to server. It allows a user to jump from
document to related document no matter where it is stored on the Internet. World
Wide Web client programs, or Web browsers, allow users to "browse" the Web.
Wide Area Network (WAN) -- A network typically extending a LAN outside the
building over common carrier telephone lines connecting other LANs possibly in
different cities.
ITEM 2. PROPERTIES
FACILITIES
The Company occupies a headquarters facility of 38,187 square feet in
Clearwater, Florida, with rent payable in the amount of approximately $732,972
per year which includes a portion of operating expenses. This facility is leased
through November 30, 1998. The Company has an option to extend the term of the
lease for an additional three-year period. The Company also rents 12,740 square
feet of manufacturing facilities in St. Petersburg, Florida at a total rent of
approximately $115,860 per year which includes a portion of operating expenses.
The Company also rents 8,044 square feet of office space in Wall Township,
New Jersey at a total rental of approximately $121,572 per year which includes a
portion of operating expenses.
The Company expects to move its corporate headquarters to a new facility
which is currently under construction in Largo, Florida. See "Note 8 to the
Financial Statements -- Commitments."
The Company believes that its current or planned facilities are more than
sufficient to meet its needs in calendar 1998.
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<PAGE> 16
ITEM 3. LEGAL PROCEEDINGS
As of April 9, 1998, 23 class action complaints for violations of the
Federal Securities Laws were filed in the United States District Court for the
Middle District of Florida, on behalf of purchasers of the Company's Common
Stock during certain periods in 1997 and 1998. The complaints named as
defendants the Company, Bryan J. Zwan, the Company's Chairman of the Board,
Chief Executive Officer and President, Beth A. Morris, the Company's Vice
President, Finance and Chief Financial Officer from January, 1995 to July, 1997,
Steven H. Grant, the Company's Vice President, Finance and Chief Financial
Officer, and other current and former corporate officers. The complaints allege
that the Company and certain officers and directors of the Company during the
relevant time period violated Sections 10(b) and 20(a) of the Securities
Exchange Act by, among other things, issuing to the investing public false and
misleading financial statements and press releases concerning the Company's
revenues, income and earnings, which artificially inflated the price of the
Company's Common Stock. The Company believes that it has meritorious defenses to
these lawsuits and intends to defend them vigorously. See "Item 1. Risk
Factors -- Litigation."
On November 5, 1997, Hugh Brian Haney ("Plaintiff") commenced an action in
the United States District Court for the Southern District of Ohio against Bryan
J. Zwan, the Company's Chief Executive Officer, and the Company ("Defendants").
The complaint alleges violations of Section 10(b) of the Securities Exchange Act
and various common law violations by Defendants in connection with Plaintiff's
sale to the Company's predecessor in November 1995, pursuant to a previously
granted option exercisable by Zwan and/or the Company's predecessor, of 4,900
shares of stock in the Company's predecessor, an amount equivalent to 19,215,686
shares of the Company's common stock. The complaint seeks alternative forms of
relief, including, among others, (1) rescission of the sale of the shares
transferred by Plaintiff or (2) damages of not less than $235 million, together
with interest. The Company believes that it has meritorious defenses to this
lawsuit and intends to defend it vigorously. See "Item 1. Risk
Factors -- Litigation."
There can be no assurance, however, that the Company will prevail in these
lawsuits and any unfavorable ruling or judgment against the Company in these
lawsuits could have a material adverse effect on the Company's business,
financial condition and results of operations.
As of April 9, 1998, the Company was not aware of any additional lawsuits
that were pending that could have a material adverse effect on the Company's
business, financial condition and results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's shares of Common Stock have traded on the Nasdaq National
Market System under the symbol "DIGL" since February 7, 1997. The prices set
forth below represent quotes between dealers and do not include commissions,
mark-ups or mark-downs, and may not necessarily represent actual transactions.
<TABLE>
<CAPTION>
COMMON STOCK
--------------------
1997 HIGH LOW
- ---- ------- -------
<S> <C> <C>
1st Quarter (from February 7, 1997)......................... $12.875 $ 7.125
2nd Quarter................................................. 9.250 3.250
3rd Quarter................................................. 17.750 7.875
4th Quarter................................................. 23.750 12.000
</TABLE>
On April 9, 1998, the closing bid and ask prices of the Company's Common
Stock were $6.000 and $6.063, respectively. As of March 20, 1998, there were
approximately 180 holders of record and in excess of 5,500 beneficial owners of
the Company's Common Stock.
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<PAGE> 17
DIVIDEND POLICY
The Company has not paid any dividends since its inception and does not
contemplate payment of dividends in the foreseeable future.
RECENT SALES OF UNREGISTERED SECURITIES
During the fiscal year ended December 31, 1997, there were no sales of
unregistered securities.
USE OF PROCEEDS FROM INITIAL PUBLIC OFFERING
On February 5, 1997, the Securities and Exchange Commission ("SEC")
declared effective the Company's Registration Statement on Form S-1, File No.
333-09457 (the "Registration Statement"), relating to the initial public
offering (the "Initial Public Offering") of the Company's Common Stock. The
managing underwriters for the Initial Public Offering were Credit Suisse First
Boston Corporation and Furman Selz LLC. The Registration Statement registered an
aggregate of 5,290,000 shares of Common Stock, representing (i) 3,658,860 shares
of Common Stock being offered by the Company, and (ii) 941,140 shares of Common
Stock being sold by certain stockholders of the Company. The Initial Public
Offering commenced on February 6, 1997, and all of the shares of Common Stock
covered by the Registration Statement were sold at $12.00 per share, resulting
in aggregate proceeds to the Company of $40.8 million. The Company did not
receive any of the proceeds of shares sold by the selling stockholders.
The expenses (excluding underwriting discounts of approximately $3.9
million) incurred by the Company in connection with the Initial Public Offering
were approximately $1.2 million which included registration and filing fees,
printing, account, legal and other miscellaneous expenses. No direct or indirect
payments were made to any directors, officers, owners of ten percent or more of
any class of the Company's equity securities, or other affiliates of the Company
other than for reimbursement of expenses incurred on the road show. Net proceeds
from the Initial Public Offering to the Company after deducting these expenses
were approximately $39.6 million.
During 1997, the Company used the net proceeds to fund the repayment of
notes payable for approximately $0.8 million, to purchase computer equipment,
software, test equipment and other assets for approximately $6.0 million and to
fund product research and development of approximately $5.3 million. In
addition, approximately $3.5 million was used to fund the Company's expansion in
the form of additional manufacturing and administrative office space and a
significant increase in engineering, production and financial management
personnel to support the Company's growth.
At December 31, 1997 approximately $24 million of the net proceeds were
held in cash reserves to provide the Company with future working capital. The
cash reserves are invested in short term investment grade securities with a
major financial institution.
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<PAGE> 18
ITEM 6. SELECTED FINANCIAL DATA
SELECTED FINANCIAL DATA
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
The following selected financial data are derived from the Financial
Statements of the Company. The selected financial data should be read in
conjunction with "Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the Financial Statements of the Company
and Notes thereto.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------------------
1997 1996 1995 1994 1993
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Statement of Operations:
Sales......................... $ 9,081 $ 6,044 $ -- $ -- $ --
Cost of goods sold............ 3,124 2,079 -- -- --
Total operating expenses...... 14,414 5,489 2,725 1,568 545
Loss from operations.......... (8,457) (1,524) (2,725) (1,568) (545)
Net loss...................... (6,690) (2,108) (3,334) (1,683) (587)
Loss per share................ (.25) (.10) (.08) (.04) (.01)
Weighted average shares(1).... 26,084,208 21,829,235 39,443,614 41,044,921 41,044,921
Balance Sheet Data:
Working capital (deficit)..... 32,495 2,349 (8,595) (1,939) (725)
Total assets.................. 44,361 6,374 1,277 332 194
Total debt.................... 25 983 7,897 2,102 555
Stockholders' equity
(deficit).................. 39,419 3,449 (8,163) (2,328) (645)
</TABLE>
- ---------------
(1) On November 30, 1995, the Company purchased 19,215,686 shares of Common
Stock from a former stockholder pursuant to an option granted to the Company
by the former stockholder in February 1995. See "Item 3 -- Legal
Proceedings; Risk Factors -- Litigation; Notes 9 and 14 of the Financial
Statements -- Related Party Transactions and Legal Proceedings."
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
This report contains certain statements of a forward-looking nature
relating to future events or the future performance of the Company. Prospective
and current investors are cautioned that such statements are only predictions
and that actual events or results may differ materially. In evaluating such
statements as well as the future prospects of the Company generally, such
investors should specifically consider various factors identified in this Report
on Form 10-K, including the matters set forth therein under the caption "Risk
Factors," which could cause actual results to differ materially from those
indicated by such forward-looking statements. Factors that may affect the
Company's results of operations include but are not limited to the limited
operating history, cumulative losses, dependence on single product, uncertain
market acceptance of planned products, rapid technological change, dependence on
new product introductions, competition, substantial increase in manufacturing
operations, dependence on contract manufacturing and limited source suppliers,
dependence on key personnel, management of growth, anticipated fluctuations in
operating results, dependence on proprietary technology, customer concentration,
product certifications, control by principal stockholder, factors inhibiting
takeover, shares eligible for future sale, possible volatility of stock price,
litigation, potential year 2000 problems and government regulations. The Company
participates in a highly concentrated industry, and has limited visibility with
regard to customer orders and the timing of such orders. The Company may also
encounter difficulty obtaining sufficient supplies to staff and meet production
schedules. As a result, quarter-to-quarter and year-to-year financial
performance is highly dependent upon the timely receipt of orders from its
customers during fiscal periods.
17
<PAGE> 19
OVERVIEW
The Company manufactures and sells Network Information Computers(TM), and
Remote Access Agents(TM) and has other products in design and development. The
Company's products are based on the Company's core software, firmware and
hardware technology which was developed over a five year period. In February
1996, the Company commenced sales of the ASA 312. To date, the Company has not
entered into long-term agreements or blanket purchase orders for the sale of its
products, but generally obtains purchase orders for immediate shipment and other
cancelable purchase commitments. The Company's sales during a particular quarter
are, therefore, highly dependent upon orders placed by customers during the
quarter. Consequently, sales may fluctuate significantly from quarter-to-quarter
and year-to-year due to the timing and amount of orders from customers, among
other factors. While the Company believes it is properly positioned to garner
additional customers and market share for the ASA 312 and its derivative
products, there can be no assurance the company will gain further product
acceptance or that additional revenue will materialize from current or future
customers.
Gross profit may be affected in the future by the introduction of new
products which generate differing gross margins and by the sales mix during a
given period. The Company plans to pursue original equipment manufacturer
("OEM") relationships with respect to the sale of Remote Access Agents(TM). The
Company has not negotiated any such arrangements but anticipates that its
pricing to OEMs would be less than with respect to direct sales resulting in
lower gross margins in connection with these arrangements. However, sales and
marketing expenses are generally lower in the case of sales to OEMs.
The Company believes that its operating expenses will continue to increase
as a result of a variety of factors including: (i) increased engineering and
development expenses associated with the completion of the products in
development and the continued enhancement of existing products; and (ii)
increased selling, general and administrative expenses associated with continued
expansion of sales and marketing capabilities, product advertising and
promotion. The Company recognizes engineering and development expenses when
incurred.
RESULTS OF OPERATIONS
The following is a discussion of significant changes in the results of
operations of the Company which occurred in the year ended December 31, 1997
compared to the year ended December 31, 1996. The following tables summarize the
approximate changes in selected operating items and include dollar changes,
percentage changes and percent of net sales to facilitate the discussions that
follow. The tables compare the year ended December 31, 1997 to the year ended
December 31, 1996.
<TABLE>
<CAPTION>
PERCENT OF NET
YEAR ENDED SALES
--------------------------- AMOUNT PERCENT --------------
DECEMBER 31, DECEMBER 31, CHANGE CHANGE
1997 1996 FAV/(UNFAV) FAV/(UNFAV) 1997 1996
------------ ------------ ----------- ----------- ----- -----
(IN MILLIONS, EXCEPT %)
<S> <C> <C> <C> <C> <C> <C>
Net sales.......................... $ 9.1 $ 6.0 $ 3.1 52% 100% 100%
Cost of goods sold................. (3.1) (2.1) (1.0) (48) (34) (34)
----- ----- ----- --- ---
Gross profit....................... 6.0 3.9 2.1 54 66 66
Engineering and development........ (5.3) (2.4) (2.9) (121) (58) (40)
Sales and marketing expenses....... (5.3) (1.7) (3.6) (212) (58) (28)
General and administrative......... (3.8) (1.4) (2.4) (171) (42) (23)
Other income (expense)............. 1.7 (.5) 2.2 440 19 (8)
----- ----- ----- --- ---
Net loss................. $(6.7) $(2.1) $(4.6) (219) (73)% (33)%
===== ===== ===== === ===
</TABLE>
18
<PAGE> 20
FOR THE YEARS ENDED DECEMBER 31, 1997 VS. DECEMBER 31, 1996
Sales
Sales for the year ended December 31, 1997, increased $3.1 million to $9.1
million from $6.0 million in the same period last year. Sales to existing
customers for the period represented 55% of sales, or $5.0 million as compared
to 48% of sales, or $2.9 million for the same period last year. During the year
ended December 31, 1997, the Company shipped 275 units in varying configurations
at an average selling price ("ASP") of $33,022 compared with 171 units at an ASP
of $35,345 for the same period last year.
The company believes repeat sales to an existing customer is an important
measure of growing product acceptance in the highly concentrated
telecommunications industry. While there can be no assurance that this
longer-term trend will continue, management believes that new product offerings
including upgrades of existing products offers the Company's existing customers
an opportunity to continue to extend the life of their initial investment in the
Company's products.
Cost of Goods Sold
Cost of goods sold for the year ended December 31, 1997, increased by $1.0
million to $3.1 million from $2.1 million in the year ago period.
The primary reason for the increase in cost of good sold for the year ended
December 31, 1997 period relates to the increase in volume of units produced and
the increased infrastructure and manufacturing costs incurred in supporting
these efforts. These costs include management, indirect labor, facility rental,
depreciation of equipment, and other operating expenses. While the overall cost
of goods sold has increased, the average cost of goods sold per unit has
declined as a result of allocating fixed production costs over a larger volume
of units produced and the component cost reductions associated with the purchase
of larger lot sizes. During the quarter ended September 30, 1997, the company
moved its manufacturing operation to a new expanded facility. Management
believes this new facility can increase production, however, these additional
fixed production costs may initially yield an increase to cost of goods sold and
average cost of goods sold per unit over the near term until the factory
achieves optimum utilization.
Gross Profit
Gross profit for the year ended December 31, 1997, increased by $2.1
million to $6.0 million from $3.9 million in the year ago period. As a
percentage of sales, gross margin for the years ended December 31, 1997 and 1996
was 65.6%.
As highlighted above, the increase in gross profit dollars for the year
ended December 31, 1997, is directly related to the increase in sales.
Engineering and Development
Engineering and development expenses for the year ended December 31, 1997,
increased by $2.9 million to $5.3 million from $2.4 million in the year ago
period.
The increase is primarily related to the addition of engineering, and
quality control personnel and the other expenses associated with the Company's
ongoing research and development efforts on products like the Remote Access
Agents(TM), and enhancements to the Company's Network Information Computers(TM).
The Company intends to hire additional personnel and expand the infrastructure
to support these ongoing research and development efforts, and does not
anticipate the rate of growth in dollar terms will subside.
Sales and Marketing
Sales and marketing expenses for the year ended December 31, 1997,
increased by $3.6 million to $5.3 million from $1.7 million in the year ago
period.
19
<PAGE> 21
The increase is related to the addition of personnel for the Company's
direct sales force and marketing functions, an increase in trade show
appearances, and other customer incentives. The Company intends to hire
additional personnel to support the expansion of existing sales channels and the
development of additional sales channels for its products and does not
anticipate the rate of growth in dollar terms will subside.
General and Administrative
General and administrative expenses for the year ended December 31, 1997,
increased by $2.4 million to $3.8 million from $1.4 million in the year ago
period.
The increase is due to the expansion of facilities, personnel, and
information systems to support the growth of the Company's business. The Company
believes these expenses generally have a large fixed component, and does not
anticipate that the rate of growth will subside.
Other Income or Expense
Other income for the year ended December 31, 1997 increased by $2.2 million
to an income of $1.7 million from an expense of $0.5 million.
The increase relates to interest income generated primarily from the
investment of proceeds from the Company's Initial Public Offering ("IPO").
Net Loss
Net loss for the year ended December 31, 1997 increased by $4.6 million to
a net loss of $6.7 million or $.25 per share, from a net loss of $2.1 million or
$.10 per share.
The computation of weighted shares outstanding for the 1997 periods reflect
a higher number of shares outstanding as a result of the completion of the
Company's IPO.
The following is a discussion of significant changes in the results of
operations of the Company which occurred in the year ended December 31, 1996
compared to the year ended December 31, 1995. The following tables summarize the
approximate changes in selected operating items and include dollar changes,
percentage changes and percent of net sales to facilitate the discussions that
follow. The tables compare the year ended December 31, 1996 to the year ended
December 31, 1995.
<TABLE>
<CAPTION>
YEAR ENDED
--------------------------- PERCENT OF NET
AMOUNT PERCENT SALES
DECEMBER 31, DECEMBER 31, CHANGE CHANGE --------------
1996 1995 FAV/(UNFAV) FAV/(UNFAV) 1996 1995
------------ ------------ ----------- ----------- ----- -----
(IN MILLIONS, EXCEPT %)
<S> <C> <C> <C> <C> <C> <C>
Net sales............................... $ 6.0 $ .0 $ 6.0 --% 100% --%
Cost of goods sold...................... (2.1) .0 (2.1) -- (34) --
----- ----- ----- ---- --- ---
Gross profit............................ 3.9 .0 3.9 -- 66 --
Engineering and development............. (2.4) (1.5) (.9) (60) (40) --
Sales and marketing expenses............ (1.7) (.2) (1.5) (750) (28) --
General and administrative.............. (1.4) (1.0) (.4) (40) (23) --
Other income (expense).................. (.5) (.6) .1 17 (8) --
----- ----- ----- ---- --- ---
Net loss....................... $(2.1) $(3.3) $ 1.2 36 (33)% --%
===== ===== ===== ==== === ===
</TABLE>
FOR THE YEARS ENDED DECEMBER 31, 1996 VS. DECEMBER 31, 1995
Sales
Sales for the year ended December 31, 1996, increased $6.0 million to $6.0
million from $0.0 million in the same period last year. During the year ended
December 31, 1996, the Company commenced initial shipment of its products and
shipped 171 units in varying configurations at an ASP of $35,345 while no
commercial sales took place in 1995.
20
<PAGE> 22
Cost of Goods Sold
Cost of goods sold for the year ended December 31, 1996, increased by $2.1
million to $2.1 million from $0.0 million in the year ago period.
Gross Profit
Gross profit for the year ended December 31, 1996, increased by $3.9
million to $3.9 million from $0.0 million in the year ago period. As a
percentage of sales, gross margin for the year ended December 31, 1996 was
65.6%.
Engineering and Development
Engineering and development expenses for the year ended December 31, 1996,
increased by $0.9 million to $2.4 million from $1.5 million in the year ago
period.
The increase is primarily related to the addition of engineering personnel
and the other expenses associated with the Company's ongoing research and
development efforts on products like the Company's Network Information
Computers.
Sales and Marketing
Sales and marketing expenses for the year ended December 31, 1996,
increased by $1.5 million to $1.7 million from $0.2 million in the year ago
period.
The increase is related to the addition of personnel for the Company's
direct sales force and marketing functions, an increase in trade show
appearances, and other customer incentives.
General and Administrative
General and administrative expenses for the year ended December 31, 1996,
increased by $0.4 million to $1.4 million from $1.0 million in the year ago
period.
The increase is due to the expansion of facilities, personnel, and
information systems to support the growth of the Company's business.
Other Income or Expense
Other expenses for the year ended December 31, 1996 decreased by $0.1
million to an expense of $0.5 million from an expense of $0.6 million.
Net Loss
Net loss for the year ended December 31, 1996 decreased by $1.2 million to
a net loss of $2.1 million or $.10 per share, from a net loss of $3.3 million or
$.08 per share.
LIQUIDITY AND CAPITAL RESOURCES
As of December 31, 1997, cash and cash equivalents were $24.0 compared to
approximately $1.2 million as of December 31, 1996. This increase was primarily
due to the receipt of net proceeds of approximately $39.6 million from the
completion of the Initial Public Offering. During the year ended December 31,
1997 the Company received an aggregate of $1.7 from repayment of a note
receivable from its principal shareholder.
The Company's working capital position improved from a surplus of $2.3
million as of December 31, 1996 to a surplus of $32.5 million as of December 31,
1997 primarily due to the completion of the Initial Public Offering. The Company
requires substantial working capital to fund its business, particularly to
finance inventories and accounts receivable and for capital expenditures. As a
result of quarterly increases in sales, trade accounts receivable increased to
$4.8 million as of December 31, 1997. The Company's future capital requirements
will depend on many factors, including the timing of introductions of new
products and
21
<PAGE> 23
enhancements to existing products and market acceptance of the Company's
products, the rate of revenue growth, and the timing and extent of spending to
support product development efforts and expansion of sales and marketing.
Management estimates that capital expenditures will be approximately $6.0
million in 1998, primarily for the purchase of equipment related to product
development and automation of production operations, for the purchase of
additional tooling for plastic injection production molds, for ASA 312
production and for furniture, fixtures and equipment in connection with leasing
additional space for the Company's operations.
The Company believes that the proceeds from the Initial Public Offering and
anticipated cash flow from operations will be sufficient to fund the Company's
working capital and capital expenditure requirements at budgeted levels through
1998. However there can be no assurance that such funds will be sufficient to
fund the Company's expansion as planned.
POTENTIAL "YEAR 2000" PROBLEMS
It is possible that the Company's currently installed computer systems,
software products or other business systems, or those of its suppliers or
customers, will not always accept input of, store, manipulate or output dates in
the years 1999, 2000 or thereafter without error or interruption. The Company
has conducted a review of its business systems, including its computer systems,
to attempt to identify ways in which its systems could be affected by problems
in correctly processing date information. Based on this review, the Company does
not expect the Year 2000 issue to have a material adverse effect on its
operations. In addition, the Company is requesting assurances from all software
vendors from which it has purchased or from which it may purchase software that
the software sold to the Company will correctly process all date information at
all times and the Company is querying its customers and suppliers as to their
progress in identifying and addressing problems that their computer systems will
face in correctly processing date information as the year 2000 approaches and is
reached. However, there can be no assurance that the Company will identify all
date-handling problems in its business systems or those of its customers and
suppliers in advance of their occurrence or that the Company will be able to
successfully remedy problems that are discovered. The expenses of the Company's
efforts to identify and address such problems, or the expenses or liabilities to
which the Company may become subject as a result of such problems, could have a
material adverse effect on the Company's business, results of operations and
financial condition.
NEW ACCOUNTING PRONOUNCEMENTS
SOP 97-2, "Software Revenue Recognition," is effective for fiscal years
beginning after December 15, 1997. This Statement provides guidance on applying
generally accepted accounting principles in recognizing revenue on software
transactions and established certain criteria for revenue recognition.
In June 1997, the Financial Accounting Standards Board (FASB) issued SFAS
No. 130, "Reporting Comprehensive Income" which is effective for periods ending
after December 15, 1998. This statement establishes standards for computing and
presenting comprehensive income which includes translation adjustments. In June
1997, the FASB issued SFAS No. 131, "Disclosures about Segments of an Enterprise
and Related Information", which is also effective for periods ending after
December 15, 1998. This statement established additional disclosure requirements
for business segments.
Management is currently assessing the future period impact of SOP No. 97-2,
SFAS No. 130 and 131 on the Company's presentation of results of operations,
changes in stockholders' equity and segment disclosures. However, management
does not believe that the implementation of these new standards will have a
material impact on the Company.
22
<PAGE> 24
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements of the Company are included in this Report as
pages 23 through 40.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Accountants........................... 24
Balance Sheets.............................................. 25
Statements of Operations.................................... 26
Statements of Stockholders' Equity (Deficit)................ 27
Statements of Cash Flows.................................... 28
Notes to Financial Statements............................... 29
</TABLE>
23
<PAGE> 25
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders of
Digital Lightwave, Inc.
We have audited the accompanying balance sheets of Digital Lightwave, Inc.
(the Company) as of December 31, 1997 and 1996, and the related statements of
operations, stockholders' equity (deficit), and cash flows for each of the three
years in the period ended December 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Digital Lightwave, Inc. as
of December 31, 1997 and 1996, and the results of its operations and its cash
flows for each of the three years in the period ended December 31, 1997, in
conformity with generally accepted accounting principles.
COOPERS & LYBRAND L.L.P.
Tampa, Florida
March 13, 1998
24
<PAGE> 26
DIGITAL LIGHTWAVE, INC.
BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1997 1996
------------ ------------
<S> <C> <C>
ASSETS
Cash and cash equivalents................................... $ 24,031 $ 1,165
Accounts receivable....................................... 4,780 2,510
Inventories............................................... 8,120 850
Prepaid expenses and other current assets................. 481 516
-------- -------
Total current assets.............................. 37,412 5,041
Property and equipment, net................................. 6,785 1,292
Other assets................................................ 164 41
-------- -------
Total assets...................................... $ 44,361 $ 6,374
======== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities.................. $ 4,917 $ 1,942
Notes payable............................................. -- 750
-------- -------
Total current liabilities......................... 4,917 2,692
Long-term liabilities....................................... 25 233
-------- -------
Total liabilities................................. 4,942 2,925
-------- -------
Commitments and contingencies (Notes 7, 8, 10 and 14)
Stockholders' equity:
Preferred stock, $.0001 par value; authorized 20,000,000
shares; no shares issued or outstanding................ -- --
Common stock, $.0001 par value; authorized 200,000,000
shares; issued and outstanding 26,440,878 and
22,518,917 shares, respectively........................ 3 2
Additional paid-in capital................................ 55,201 14,242
Accumulated deficit....................................... (15,785) (9,095)
-------- -------
39,419 5,149
Note receivable from stockholder............................ -- (1,700)
-------- -------
Total stockholders' equity........................ 39,419 3,449
-------- -------
Total liabilities and stockholders' equity........ $ 44,361 $ 6,374
======== =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
25
<PAGE> 27
DIGITAL LIGHTWAVE, INC.
STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER-SHARE DATA)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
---------------------------------------
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Sales................................................... $ 9,081 $ 6,044 $ 0
Cost of goods sold...................................... 3,124 2,079 0
----------- ----------- -----------
Gross profit............................................ 5,957 3,965 0
Operating expenses:
Engineering and development........................... 5,342 2,403 1,509
Sales and marketing................................... 5,260 1,706 199
General and administrative............................ 3,812 1,380 1,017
----------- ----------- -----------
Total operating expenses...................... 14,414 5,489 2,725
----------- ----------- -----------
Operating loss.......................................... (8,457) (1,524) (2,725)
Other income (expense):
Interest income....................................... 1,826 211 8
Interest expense...................................... (66) (595) (621)
Other income (expense), net........................... 7 (200) 4
----------- ----------- -----------
Total other income (expense).................. 1,767 (584) (609)
----------- ----------- -----------
Loss before income taxes................................ (6,690) (2,108) (3,334)
----------- ----------- -----------
Provision for income taxes.............................. -- -- --
Net loss...................................... $ (6,690) $ (2,108) $ (3,334)
=========== =========== ===========
Basic and diluted loss per share of common stock........ $ (0.25) $ (0.10) $ (0.08)
=========== =========== ===========
Weighted average common shares outstanding............ 26,084,208 21,829,235 39,443,614
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
26
<PAGE> 28
DIGITAL LIGHTWAVE, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
FOR THE YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
NOTE
COMMON STOCK ADDITIONAL RECEIVABLE
-------------------- PAID-IN ACCUMULATED FROM
SHARES AMOUNT CAPITAL (DEFICIT) STOCKHOLDER TOTAL
----------- ------ ---------- ----------- ----------- -------
<S> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1995.......... 39,215,686 $ 4 $ 523 $ (2,855) $ -- $(2,328)
Purchase and retirement of common
stock, November................. (19,215,68) (2) (1) (798) -- (801)
Note receivable from
stockholder..................... -- -- -- -- -- (1,700)
Net loss................ -- -- -- (3,334) -- (3,334)
----------- --- ------- -------- ------- -------
Balance, December 31,............. 20,000,000 2 522 (6,987) (1,700) (8,163)
Issuance of common stock in
exchange for debt............... 1,013,924 -- 4,820 -- -- 4,820
Sale of common stock.............. 221,992 -- 2,602 -- -- 2,602
Issuance of common stock upon
exercise of stock............... 31,334 -- 39 -- -- 39
Issuance of common upon exercise
of warrants..................... 1,251,667 -- 6,259 -- -- 6,259
Net loss................ -- -- -- (2,108) -- (2,108)
----------- --- ------- -------- ------- -------
Balance, December 31, 1996........ 22,518,917 2 14,242 (9,095) (1,700) 3,449
Issuance of common stock from
Initial Public Offering, net.... 3,658,860 1 39,591 -- -- 39,592
Issuance of common stock.......... 263,101 -- 1,368 -- -- 1,368
Repayment of note receivable from
stockholder..................... -- -- -- -- 1,700 1,700
Net loss................ -- -- -- (6,690) -- (6,690)
----------- --- ------- -------- ------- -------
Balance, December 31, 1997........ 26,440,878 $ 3 $55,201 $(15,785) $ -- $39,419
=========== === ======= ======== ======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
27
<PAGE> 29
DIGITAL LIGHTWAVE, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
---------------------------------
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $ (6,690) $ (2,108) $ (3,334)
Adjustments to reconcile net loss to cash used by
operating activities:
Interest expense converted to equity................... -- 205 --
Depreciation and amortization.......................... 778 204 101
Loss on disposal of property........................... -- 8 --
Changes in operating assets and liabilities:
Increase in accounts receivable........................ (2,270) (2,499) (10)
Increase in inventories................................ (7,270) (288) (525)
Increase in prepaid expenses and other assets.......... (87) (499) (21)
Increase in accounts payable and accrued liabilities... 2,647 479 760
Decrease in other long-term liabilities................ -- (5) --
-------- -------- --------
Net cash used by operating activities............. (12,892) (4,443) (3,029)
-------- -------- --------
Cash flows from investing activities:
Purchases of property and equipment.................... (5,994) (635) (173)
-------- -------- --------
Net cash used by investing activities............. (5,994) (635) (173)
-------- -------- --------
Cash flows from financing activities:
Stockholder receivable.................................... -- -- (1,700)
Repayment of stockholder receivable....................... 1,700 -- --
Proceeds from notes payable............................... -- 2,350 5,695
Principle payments on notes payable....................... (750) (3,000) --
Proceeds from notes payable, related party................ -- -- 100
Principle payments on notes payable, related party........ -- (202) --
Principle payments, capital lease obligation.............. (208) (195) (46)
Proceeds from sale of common stock, net of expense........ 40,960 -- --
Cash paid for common stock................................ -- 7,218 --
Purchase of and retirement of common stock................ -- -- (801)
-------- -------- --------
Net cash provided by financing activities......... 41,702 6,171 3,248
-------- -------- --------
Net increase in cash and cash equivalents................... 22,866 1,093 46
Cash and cash equivalents at beginning of period............ 1,165 72 26
-------- -------- --------
Cash and cash equivalents at end of period.................. $ 24,031 $ 1,165 $ 72
======== ======== ========
Other supplemental disclosures:
Cash paid for interest.................................... $ 66 $ 547 $ 154
Cash paid for income taxes................................ -- -- 1
Non-cash investing and financing activities:
Capital lease obligation.................................. $ -- $ 355 $ 246
Fixed asset additions included in accounts payable at year
end.................................................... 327 -- 25
Disposals of property and equipment....................... -- 18 --
Notes payable converted to equity......................... -- 6,295 --
</TABLE>
The accompanying notes are an integral part of these financial statements.
28
<PAGE> 30
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
GENERAL
Digital Lightwave, Inc. (the "Company") was incorporated on October 12,
1990 in the state of California, and subsequently reincorporated in Delaware on
March 18, 1996 through a merger into a newly formed Delaware corporation. The
Company commenced business on February 15, 1991 and manufactures and sells
advanced computer systems that provide information concerning the performance of
fiberoptic (or "lightwave") telecommunications networks and transmission
equipment. The Company's major product, the ASA 312, is a portable
software-based network information computer that is lightweight, compact and
easily operated through a touch sensor over a full color display. The ASA 312
enables users to understand and process information, simultaneously and without
interruption, from telecommunications networks untilizing legacy T-Carrier
protocol, lightwave SONET protocol and lightwave ATM protocol. The Company sells
its products to InterExchange Carriers ("IXCs"), Regional Bell Operating
Companies ("RBOCs"), Competitive Access Providers ("CAPs"), independent
telephone companies, network equipment manufacturers, equipment leasing
companies and private network operators.
CASH EQUIVALENTS
The Company considers all highly liquid investments with an initial
maturity of three months or less to be cash equivalents.
INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out) or
market.
PROPERTY AND EQUIPMENT
The Company's property and equipment, including certain assets under
capital leases, are stated at cost, less accumulated depreciation and
amortization. Depreciation and amortization are provided using the straight-line
method over estimated useful lives of 5 to 7 years, or over the lesser of the
term of the lease or the estimated useful life of assets under the capital
lease. Maintenance and repairs are expensed as incurred while renewals and
betterments are capitalized. Upon the sale or retirement of property and
equipment, the accounts are relieved of the cost and the related accumulated
depreciation and amortization, and any resulting gain or loss is included in the
results of operations.
ACCRUED WARRANTY
The Company provides the customer a warranty with each product sold and
accrues warranty expense based upon a percentage of sales. Actual warranty costs
incurred are charged against the accrual when paid.
REVENUE RECOGNITION
Revenue is recognized when a purchase order or contract has been received
from the customer, and the product has been shipped to the Company's customer
or, in the case of sales to a distributor, when the product is shipped to the
distributor's end user because distributors generally have a right of return on
any product that does not sell within time periods specified in the agreement
with the distributor. Returns from individual customers are recorded as a
reduction in sales during the period in which the return was made. To date, the
Company has not experienced a significant amount of product returns.
29
<PAGE> 31
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DEFERRED REVENUE
Deferred revenue, which represents amounts billed to customers in advance
of shipment or amounts billed to distributors prior to the distributors sale of
the goods, is recorded at the date of billing. Revenue is subsequently
recognized at the date of shipment or, in the case of distributor sales, at the
time the distributor ships the product to the end user.
RESEARCH AND DEVELOPMENT
Software and product development costs are included in engineering and
development and are expensed as incurred. SFAS No. 86, "Accounting for the Costs
of Computer Software to be Sold, Leased, or Otherwise Marketed," requires the
capitalization of certain software development costs during the period following
the time that technological feasibility is established until general release of
the product to customers. The capitalized cost is then amortized over the
estimated product life. To date, the period between achieving technological
feasibility and the general release to customers has been short and, therefore,
software development costs qualifying for capitalization have been
insignificant.
INCOME TAXES
The Company accounts for income taxes under Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes," which requires
recognition of deferred tax liabilities and assets for the expected future tax
consequences of events that have been included in the financial statements or
tax returns. Under this method, deferred tax liabilities and assets are
determined based on the difference between the financial statement and the tax
bases of assets and liabilities using enacted tax rates in effect for the year
in which the differences are expected to reverse.
COMPUTATION OF NET LOSS PER SHARE
Basic loss per share is based on the weighted average number of common
shares outstanding during the periods presented. For the year ended December 31,
1997, diluted loss per share, which includes the effect of incremental shares
from common stock equivalents using the treasury stock method, is not included
in the calculation of net loss per share as the inclusion of such equivalents
would be anti-dilutive. The table below shows the calculation of basic weighted
average common shares outstanding and the incremental number of shares arising
from common stock equivalents under the treasury stock method:
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------
1997 1996 1995
---------- ---------- ----------
<S> <C> <C> <C>
Basic:
Weighted average common shares outstanding... 26,084,208 21,375,584 38,989,963
---------- ---------- ----------
Total basic.......................... 26,084,208 21,375,584 38,989,963
Diluted:
Incremental shares for common stock
equivalents............................... 976,013 453,651 453,651
---------- ---------- ----------
Total dilutive....................... 27,060,221* 21,829,235 39,443,614
========== ========== ==========
</TABLE>
- ---------------
* not included in loss per share calculations due to anti-dilutive effect
Pursuant to the requirements of the Securities and Exchange Commission,
common stock, stock options, and warrants issued by the Company during the
twelve months immediately preceding the Initial Public Offering date have been
included in the calculation of the weighted average shares outstanding for the
years ended December 31, 1996 and 1995 using the treasury stock method based on
the Initial Public Offering price. Accordingly, weighted average common stock
outstanding includes 1,375,584 of common stock equivalent
30
<PAGE> 32
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
shares issued during the year ended December 31, 1996 shown as outstanding.
Weighted average common stock equivalents outstanding includes 453,651 common
stock equivalent shares for options issued during the years ended December 31,
1996 and 1995.
CONCENTRATIONS OF CREDIT RISK
Financial instruments that potentially subject the Company to
concentrations of credit risk consist principally of cash and cash equivalents
and receivables. As of December 31, 1997, 1996 and 1995, substantially all of
the Company's cash balances, including amounts representing outstanding checks,
were deposited with what management believes to be high quality financial
institutions. During the normal course of business, the Company extends credit
to customers conducting business primarily in the telecommunications industry
both within the United States and internationally.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements. Estimates also affect the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
NEW ACCOUNTING PRONOUNCEMENTS
SOP 97-2, "Software Revenue Recognition," is effective for fiscal years
beginning after December 15, 1997. This Statement provides guidance on applying
generally accepted accounting principles in recognizing revenue on software
transactions and established certain criteria for revenue recognition.
In June 1997, the Financial Accounting Standards Board (FASB) issued SFAS
No. 130, "Reporting Comprehensive Income" which is effective for periods ending
after December 15, 1998. This statement establishes standards for computing and
presenting comprehensive income which includes translation adjustments. In June
1997, the FASB issued SFAS No. 131, "Disclosures about Segments of an Enterprise
and Related Information", which is also effective for periods ending after
December 15, 1998. This statement established additional disclosure requirements
for business segments.
Management is currently assessing the future period impact of SOP No. 97-2,
SFAS No. 130 and 131 on the Company's presentation of results of operations,
changes in stockholders' equity and segment disclosures. However, management
does not believe that the implementation of these new standards will have a
material impact on the Company.
RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform with the 1997
presentation.
2. INVENTORIES
Inventories at December 31, 1997 and 1996 are summarized as follows:
<TABLE>
<CAPTION>
1997 1996
------- -----
(IN THOUSANDS)
<S> <C> <C>
Raw materials............................................... $1,278 $336
Work-in progress............................................ 1,863 339
Finished goods.............................................. 4,979 175
------ ----
$8,120 $850
====== ====
</TABLE>
31
<PAGE> 33
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
3. PROPERTY AND EQUIPMENT
Property and equipment at December 31, 1997 and 1996 are summarized as
follows:
<TABLE>
<CAPTION>
1997 1996
------- -------
(IN THOUSANDS)
<S> <C> <C>
Test equipment.............................................. $ 2,569 $ 457
Computer equipment and software............................. 2,954 729
Tooling..................................................... 455 175
Office furniture, fixtures and equipment.................... 1,381 294
Leasehold improvements...................................... 582 15
------- -------
7,941 1,670
Less accumulated depreciation............................... (1,156) (378)
------- -------
$ 6,785 $ 1,292
======= =======
</TABLE>
Equipment under capital lease and related accumulated amortization,
included above at December 31, 1997 and 1996 are summarized as follows:
<TABLE>
<CAPTION>
1997 1996
------ ------
(IN THOUSANDS)
<S> <C> <C>
Test Equipment.............................................. $ 75 $ 219
Computer equipment and software............................. 37 551
----- -----
112 770
Less accumulated amortization............................... (39) (229)
----- -----
$ 73 $ 541
===== =====
</TABLE>
4. ACCOUNTS PAYABLE AND ACCRUED LIABILITIES
Accounts payable and accrued liabilities at December 31, 1997 and 1996 are
summarized as follows:
<TABLE>
<CAPTION>
1997 1996
------ ------
(IN THOUSANDS)
<S> <C> <C>
Accounts payable............................................ $3,541 $ 419
Deferred revenue............................................ 765 142
Advance from stockholder.................................... 0 400
Payable to stockholders..................................... 0 179
Current portion of capital lease obligations................ 42 186
Accrued expenses and other.................................. 569 616
------ ------
$4,917 $1,942
====== ======
</TABLE>
32
<PAGE> 34
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
5. INCOME TAXES
The tax effected amounts of temporary differences at December 31, 1997 and
1996 are summarized as follows:
<TABLE>
<CAPTION>
1997 1996
------- -------
(IN THOUSANDS)
<S> <C> <C>
Current:
Deferred tax asset:
Deferred compensation.................................. $ 33 $ 37
Other.................................................. 408 23
Valuation allowance.................................... (418) (59)
------- -------
Total current deferred tax asset.................. 23 1
------- -------
Net current deferred tax asset.................... $ 23 $ 1
------- -------
Non-current:
Deferred tax asset:
Net operating loss carry forward....................... $ 5,628 $ 2,773
Other.................................................. -- 17
Research and experimentation credit.................... 142 142
Valuation allowance.................................... (5,464) (2,895)
------- -------
Total non-current deferred tax asset.............. 306 37
------- -------
Deferred tax liability:
Property related.......................................... (329) (38)
------- -------
Total non-current deferred tax liability.......... (329) (38)
------- -------
Net deferred tax asset............................ $ 0 $ 0
======= =======
</TABLE>
Management believes that it is more likely than not that the tax benefit
associated with these deferred tax assets will not be realized and, therefore as
of December 31, 1997, the Company has established a valuation allowance of
approximately $5,882,000. The result is an increase in the valuation allowance
from December 31, 1996 of approximately $2,928,000.
As of December 31, 1997, the Company had net operating loss carry forwards
of approximately $15.0 million for tax purposes. Due to certain change of
ownership requirements of Section 382 of the Internal Revenue Code ("IRC"),
utilization of the Company's net operating losses incurred prior to July 1, 1993
is expected to be limited to approximately $7,500 per year. This limitation in
conjunction with the expiration period for these pre-July 1, 1993 net operating
losses results in the Company's total net operating losses available being
limited to approximately $14.1 million. Loss carry forwards will expire between
the years 2005 and 2011.
As of December 31, 1997, the Company also had general business credit carry
forwards of approximately $142,000 which expire between the years 2008 and 2011.
These credits are also subject to the Section 382 annual limitation.
Approximately $15,000 of these credits are subject to the Section 382 annual
limitation.
33
<PAGE> 35
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
Following is a reconciliation of the applicable federal income tax as
computed at the federal statutory tax rate to the actual income taxes reflected
in the statement of operations.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
DECEMBER 31,
---------------------------
1997 1996 1995
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Tax benefit at U.S. Federal income tax rate............... $(2,275) $ (717) $(1,134)
State income tax benefit, net of Federal.................. (243) (76) (121)
Other..................................................... (410) 6 11
Valuation allowance increase.............................. 2,928 787 1,266
Research and experimentation credit....................... -- -- (22)
------- ------- -------
Provision for income taxes................................ $ 0 $ 0 $ 0
======= ======= =======
</TABLE>
6. NOTES PAYABLE
On February 28, 1997 the Company repaid all notes payable with proceeds
from the Initial Public Offering. At December 31, 1996 notes payable amounted to
$750,000. This note was unsecured, subordinated to all secured debt and any
future lines of credit up to $2 million, bore interest at 18% per annum with
interest due and payable August 30, 1996, November 30, 1996, February 29, 1997
and May 31, 1997.
7. LEASES
The Company is obligated under various non-cancelable leases for equipment
and office space. Future minimum lease commitments under operating and capital
leases were as follows as of December 31, 1997:
<TABLE>
<CAPTION>
CAPITAL OPERATING
YEAR LEASES LEASES
- ---- ------- ---------
(IN THOUSANDS)
<S> <C> <C>
1998........................................................ $50 $ 970
1999........................................................ 27 1,477
2000........................................................ 2,053
2001........................................................ 2,015
2002........................................................ 2,039
Thereafter.................................................. 10,182
--- -------
77 $18,736
-------
Less: Amount representing interest.......................... 10
---
Present value of minimum lease payments..................... 67
Less: Current portion....................................... 42
---
$25
===
</TABLE>
Total rental expense was approximately $506,000, $241,500 and $147,900 for
the years ended December 31, 1997, 1996, and 1995, respectively.
8. COMMITMENTS
At December 31, 1997, the Company had outstanding purchase order
commitments to purchase certain inventory items totaling approximately $7.3
million.
On January 13, 1998 the Company entered into a ten year lease agreement,
which was amended on February 18, 1998, for a three story office building with
92,225 square feet of rentable space. The building is currently under
construction and is expected to be completed on or about November 30, 1998. The
Company
34
<PAGE> 36
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
has made a commitment to lease 67% of the rentable space at an initial cost of
$13.43 per square foot per annum in base rent and $5.38 per square foot per
annum in operating expenses. At the beginning of year two, the rental costs will
increase to $14.175 and $6.00 for base rent and operating expenses,
respectively. Thereafter the rental costs shall increase by 2.5% per lease year.
The Company is required to pay a tenant improvement allowance of $900,000
no later than June 15, 1998. The allowance will be held in escrow by the
landlord to secure the Company's obligations under the lease. The Company has an
option to terminate the lease at the conclusion of the seventh lease year. Such
option, if exercised, will invoke a termination fee of $1,941,749 plus six
months of estimated operating expenses. The Company also has an option to
purchase the building for approximately $14.5 million which may be exercised at
any time during the initial lease term and will require a $300,000 deposit when
notice to exercise is given.
As required by the lease agreement, the Company has put in place a standby
letter of credit to the benefit of the landlord in the amount of $2,300,000,
which is collateralized by a three month certificate of deposit with a financial
institution. The lease agreement calls for a declining letter of credit over the
life of the lease.
In accordance with the terms of the lease the Landlord has also issued a
letter of credit to the benefit of the Company in the amount of $1,000,000 which
secures the landlord's performance obligations under the lease and will remain
in effect until the date of occupancy.
9. RELATED PARTY TRANSACTIONS
During February 1995, the Company entered into a Stock Purchase Option (the
Option) with a former stockholder to repurchase the 19,215,686 shares of the
then outstanding class of common stock held by the former stockholder for a
purchase price of $2,500,000. The purchase price was subsequently reduced to
$800,522. On November 30, 1995, the Company exercised the option and immediately
retired the shares of treasury stock acquired. The exercise is reflected in the
accompanying statement of stockholder's equity (deficit) for the year ended
December 31, 1995.
During December 1995, the remaining stockholder borrowed $1,700,000 from
the Company. This note accrued interest at 9% with interest payments due
monthly. The principal sum and accrued interest thereon was repaid by the
stockholder in September 1997. The accompanying financial statements include the
note as a decrease in stockholders' equity, as well as accrued interest of
approximately $31,300 and $4,600 as of December 31, 1996 and 1995, respectively.
10. COMMON STOCK, STOCK OPTIONS, AND WARRANTS
STOCK OPTIONS
During 1995, the Company entered into option agreements with certain
parties to purchase an aggregate of up to $701,000 of common stock at the price
to the public per share, in the event of an initial public offering of common
stock of the Company, at an aggregate purchase price equal to $154,500. The
Company subsequently terminated several agreements which reduced the aggregate
shares subject to such options to $470,000, at an aggregate price equal to
$39,000. The options were exercised during July, 1996.
SUBORDINATED NOTE
On January 2, 1996, the Company issued (i) its 16% Subordinated Promissory
Note due January 2, 1999 in the original principal amount of $1 million, and
(ii) warrants to purchase 200,000 shares of Common Stock at an exercise price of
$5.00 per share. The warrants terminate on the earlier to occur of: (i) thirty
(30) days following the filing of a registration statement for an underwritten
initial public offering of the Common Stock of the Company, (ii) thirty (30)
days following an announcement of a change in control of the Company; or
35
<PAGE> 37
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(iii) January 2, 1999. On August 27, 1996, the noteholder surrendered the
Subordinated Promissory Note in exercise of the warrants.
CORPORATE MERGER
Pursuant to an Agreement and Plan of Merger (the Merger) dated January 9,
1996, Digital Lightwave, Inc., a California corporation merged into Digital
Lightwave, Inc., a Delaware corporation effective March 18, 1996. The merger
increased the number of shares of common stock authorized from 1,000,000, no par
value, to 80,000,000, $.0001 par value. In connection with the merger, the
Company also authorized 20,000,000 shares of $.0001 par value preferred stock.
Each share of outstanding common stock of the California corporation was
converted into 3,921.5686 shares of common stock of the Delaware corporation.
All applicable share and per share amounts in the accompanying financial
statements have been retroactively adjusted to reflect these events.
Effective July 25, 1996, the Board of Directors authorized an increase in
the number of authorized shares of common stock from 80,000,000 shares to
200,000,000 shares.
EMPLOYEE STOCK OPTION PLAN
The Company's 1996 Stock Option Plan (the "Option Plan") became effective
on March 5, 1996. A reserve of 5,000,000 shares of the Company's Common Stock
has been established for issuance under the Option Plan. Transactions related to
the Option Plan during 1997 and 1996 are summarized as follows:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
SHARES OPTION PRICE
--------- ----------------
<S> <C> <C>
Outstanding at 1/1/96...................................... -- --
Granted.................................................. 1,250,037 $5.17
Exercised................................................ -- --
Forfeited................................................ 80,540 5.24
---------
Outstanding at 12/31/96.................................... 1,169,497 5.16
Granted.................................................. 1,221,015 8.72
Exercised................................................ 257,843 5.03
Forfeited................................................ 81,884 5.37
---------
Outstanding at 12/31/97.................................... 2,050,785 $7.29
=========
</TABLE>
The following table summarizes information about stock options outstanding
to employees and directors at December 31, 1997:
<TABLE>
<CAPTION>
NUMBER
OUTSTANDING WEIGHTED NUMBER
AT AVERAGE EXERCISABLE
EXERCISE PRICE PER SHARE 12/31/97 REMAINING LIFE AT 12/31/97
- ------------------------ ----------- -------------- -----------
<S> <C> <C> <C>
$ 5.000........................................... 135,832 4.18 25,315
5.250........................................... 1,333,007 6.79 396,251
7.250........................................... 25,000 8.10 0
9.000........................................... 50,000 8.10 0
12.750........................................... 50,000 5.58 0
13.125........................................... 456,946 5.83 0
</TABLE>
All options issued vest in one-third increments over a three year period,
with the exception of one option agreement which calls for daily vesting
throughout a three-year vesting period. Option agreements generally expire six
years from date of issue if not exercised. Unvested options are generally
forfeited upon termination
36
<PAGE> 38
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
of employment with the Company. Total shares exercisable were 421,566 and 0 as
December 31, 1997 and 1996, respectively.
EMPLOYEE STOCK PURCHASE PLAN
The Company's 1997 Employee Stock Purchase Plan became effective on August
25, 1997 in order to provide employees with the opportunity to purchase shares
of the Company's Common Stock. An aggregate of 300,000 shares of the Company's
Common Stock was reserved for issuance under the Plan. At December 31, 1997 a
total of 5,258 shares had been purchased by employees participating in the plan
at a price per share of $13.60.
In 1995, the Financial Accounting Standards Board issued FAS 123,
"Accounting for Stock -- Based Compensation" ("FAS 123"), effective for fiscal
years beginning after December 15, 1995. The Company continues to apply the
prior accounting rules under "APB No. 25, Accounting for Stock Issued to
Employees," in recognizing expense for stock-based compensation, and therefore,
no compensation expense has been recognized for the stock options granted under
the Option Plan. Had compensation cost for the Company's stock options granted
been determined based on the Black-Scholes option pricing model at the date of
grant, consistent with the method of FAS 123, the Company's net loss and loss
per share would have been increased to the pro forma amounts shown below:
<TABLE>
<CAPTION>
1997 1996
------- -------
(IN THOUSANDS)
<S> <C> <C>
Pro forma net loss:
As reported.................................... $(6,690) $(2,108)
As adjusted (unaudited)........................ (8,769) (3,417)
Pro forma basic loss per share:
As reported.................................... $ (0.25) $ (0.10)
As adjusted (unaudited)........................ (0.34) (0.16)
</TABLE>
No options were granted prior to 1996.
These pro forma amounts were determined using the Black-Scholes valuation
model with the following key assumptions: (a) a discount rate of between 5.84%
and 6.00% for December 31, 1997 and 1996, respectively; (b) a volatility factor
based upon the week ending price for comparable public companies for periods
matching the terms of the options granted; (c) an average expected option life
of 4.2 and 5.0 years for December 31, 1997 and 1996, respectively; (d) there
have been no options that have expired; and (e) no payment of dividends.
SUBSCRIPTION AGREEMENTS
During 1995, the Company entered into subscription agreements (the
Agreements) with certain noteholders for the issuance of an aggregate of 782,898
shares of common stock for the surrender of the outstanding balance on the notes
(excluding certain accrued interest) of an aggregate of $4,074,000. Pursuant to
the Agreements, the Company issued warrants to purchase 1,050,000 and 18,747
shares of common stock at an exercise price of $5.00 and $9.00 per share,
respectively. The warrants expire on the earlier of: (i) three years from their
respective dates of issuance; (ii) thirty (30) days following the filing of a
registration statement for an underwritten initial public offering of the common
stock of the Company, or (iii) a change of control of the Company. During the
year ended December 31, 1996, 1,050,000 and 1,667 shares of Common Stock were
issued upon the exercise of warrants at a price of $5.00 and $9.00 per share,
respectively. The remaining 17,080 warrants expired in connection with the
initial public offering. See Note 13. On May 29, 1996, the Company entered into
a subscription agreement with an institutional investor for the issuance of
66,667 shares of common stock at a price of $18.00 per share. In the event that
on or before May 23, 1997 the Company completed an Initial Public Offering of
its Common Stock, then the price of the shares would be
37
<PAGE> 39
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
adjusted by: (i) payment by the stockholder to the Company in the amount equal
to the excess, if any, over $18.00 per share of the price to the public per
share times 75% (the 75% price), or by (ii) a payment by the Company to the
stockholder equal to the excess, if any, of $18.00 per share over the 75% price.
The Company recorded a liability of $400,000 as of December 31, 1996, based upon
management's estimate of the expected payment to the institutional investor. In
February 1997 the Company completed its Initial Public Offering at a price of
$12.00 per share. Accordingly, the Company has made payment to the institutional
investor as required by the terms of the subscription agreement.
PRIVATE PLACEMENT
During the period March 13, 1996 through April 30, 1996, the Company sold
155,326 shares of Common Stock, par value $.0001 per share, at a price of $9.00
per share.
REVERSE SPLIT
Effective October 31, 1996, the Company effected a two-for-three reverse
split of its outstanding Common Stock. All share amounts included herein have
been adjusted to give historical effect to such reverse split for all periods
presented.
11. DEFINED CONTRIBUTION PLAN
During 1997, the Company implemented a defined contribution plan which
qualifies under IRC section 401(k). All full-time employees are eligible to
participate in the plan after three months of service with the Company.
Employees may contribute up to 15% of their salary to the plan, subject to
certain Internal Revenue Service limitations. The Company matches the first 6%
of such voluntary contributions at 50% of the amount contributed by the
employee. The Company does not make unmatched contributions. For the year ended
December 31, 1997 total Company contributions to the plan were approximately
$27,000.
12. SIGNIFICANT CUSTOMERS
For the year ended December 31, 1997, the Company's five largest customers
accounted for approximately 69% of total revenues, with WorldCom and its
subsidiaries accounting for 42% of total sales. For the year ended December 31,
1996, the Company's five largest customers accounted for approximately 62% of
total revenues, with MCI Communications Corporation ("MCI"), Ameritech
Corporation ("Ameritech") and Pacific Telesys Group ("PacTel") accounting for
23%, 19% and 15% of total sales, respectively. No other customer accounted for
more than 10% of the Company's revenues during such periods.
13. INITIAL PUBLIC OFFERING
Effective February 5, 1997, the Company sold 3,658,860 shares of common
stock, $.0001 par value, in connection with an Initial Public Offering. Gross
proceeds to the Company approximated $40,800,000.
14. LEGAL PROCEEDINGS
As of April 9, 1998, 23 class action complaints for violations of the
Federal Securities Laws were filed in the United States District Court for the
Middle District of Florida, on behalf of purchasers of the Company's Common
Stock during certain periods in 1997 and 1998. The complaints named as
defendants the Company, Bryan J. Zwan, the Company's Chairman of the Board,
Chief Executive Officer and President, Beth A. Morris, the Company's Vice
President, Finance and Secretary from January, 1995 to July, 1997, Steven H.
Grant, the Company's Vice President, Finance and Chief Financial Officer, and
other current and former corporate officers. The complaints allege that the
Company and certain officers and directors of the Company during the relevant
time period violated Sections 10(b) and 20(a) of the Securities Exchange Act by,
among
38
<PAGE> 40
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
other things, issuing to the investing public false and misleading financial
statements and press releases concerning the Company's revenues, income and
earnings, which artificially inflated the price of the Company's Common Stock.
The Company believes that it has meritorious defenses to these lawsuits and
intends to defend them vigorously.
On November 5, 1997, Hugh Brian Haney ("Plaintiff") commenced an action in
the United States District Court for the Southern District of Ohio against Bryan
J. Zwan, the Company's Chief Executive Officer, and the Company ("Defendants").
The complaint alleges violations of Section 10 (b) of the Securities Exchange
Act and various common law violations by Defendants in connection with
Plaintiff's sale to the Company's predecessor in November 1995, pursuant to a
previously granted option exercisable by Zwan and/or the Company's predecessor,
of 4,900 shares of stock in the Company's predecessor, an amount equivalent to
19,215,686 shares of the Company's common stock. The complaint seeks alternative
forms of relief, including, among others, (1) rescission of the sale of the
shares transferred by Plaintiff or (2) damages of not less than $235 million,
together with interest. The Company believes that it has meritorious defenses to
this lawsuit and intends to defend it vigorously.
There can be no assurance, however, that the Company will prevail in these
lawsuits and any unfavorable ruling or judgment against the Company in these
lawsuits could have a material adverse effect on the Company's business,
financial condition and results of operations.
As of April 9, 1998, the Company was not aware of any additional lawsuits
that were pending that could have a material adverse effect on the Company's
business, financial condition and results of operations.
15. SUBSEQUENT EVENTS
In February 1998, management implemented a plan to reduce costs and improve
operating efficiencies. In connection with this plan the Company recorded a
restructuring charge of approximately $1.0 million. The principal actions in the
1998 restructuring plan involved the elimination of approximately 20
manufacturing and administrative positions and a reorganization of reporting
lines designed to simplify the reporting and management process.
16. QUARTERLY OPERATING RESULTS (UNAUDITED)
The following table presents unaudited quarterly operating results for each
of the last eight quarters. This information has been prepared by the Company on
a basis consistent with the Company's financial statements and includes all
adjustments, consisting only of normal recurring accruals, in accordance with
generally accepted accounting principles. Such quarterly results are not
necessarily indicative of future operating results.
On January 22, 1998, the Company issued a press release and related Form
8-K indicating that the Company would restate its financial results for quarters
ending June 30, 1997 and September 30, 1997, respectively. The table below gives
effect to such restatement:
<TABLE>
<CAPTION>
QUARTER ENDED
----------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1997 1997 1997 1997
------------ ------------ ------------- ------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Sales............................... $ 1,498 $ 2,601 $ 1,240 $ 3,742
Gross Profit........................ 931 1,806 814 2,406
Operating loss...................... (1,605) (1,116) (3,126) (2,610)
Net loss............................ (1,312) (577) (2,615) (2,186)
Loss per share...................... (.05) (.02) (.10) (.08)
Weighted average shares
outstanding....................... 24,754,887 26,321,990 26,374,388 27,596,955
</TABLE>
39
<PAGE> 41
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
QUARTER ENDED
----------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1996 1996 1996 1996
------------ ------------ ------------- ------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Sales............................... $ 185 $ 1,129 $ 1,723 $ 3,007
Gross profit........................ 60 732 1,093 2,080
Operating profit (loss)............. (825) (381) (507) 189
Net income (loss)................... (l,132) (466) (722) 212
Earnings (loss) per share........... (.06) (.02) (.03) .01
Weighted average shares
outstanding....................... 20,221,818 21,944,216 22,083,914 23,894,501
</TABLE>
It is anticipated that as the Company matures, the Company's sales and
operating results may fluctuate from quarter-to-quarter and from year-to-year
due to a combination of factors, certain of which are outside the control of the
Company, including, among others (i) the timing and amount of significant orders
from the Company's customers, (ii) the ability to obtain sufficient supplies of
sole or limited source components for the Company's products, (iii) the ability
to attain and maintain production volumes and quality levels for its products,
(iv) the mix of distribution channels and products, (v) new product
introductions by the Company's competitors, (vi) the Company's success in
developing, introducing and shipping product enhancements and new products,
(vii) pricing actions by the Company or its competitors, (viii) changes in
material costs and (ix) general economic conditions. Any unfavorable changes in
these or other factors could have a material adverse effect on the Company's
business, financial condition and results of operations. The Company does not
anticipate that its backlog at the beginning of each quarter will be sufficient
to achieve expected revenue for that quarter. To achieve its revenue objectives,
the Company expects that it will have to obtain orders during a quarter for
shipment in that quarter. As a result of all of the foregoing, there can be no
assurance that the Company will be able to sustain profitability on a quarterly
or annual basis. See "Item 1. Risk Factors -- Anticipated Fluctuations In
Operating Results."
40
<PAGE> 42
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item is included under the captions
entitled "Election of Directors" and "Information Concerning Directors and
Executive Officers" in the Company's Proxy Statement and is incorporated herein
by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is included under the caption
entitled "Executive Compensation" in the Company's Proxy Statement and is
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is included under the caption
entitled "Security Ownership of Certain Beneficial Owners and Management" in the
Company's Proxy Statement and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is included under the caption
entitled "Certain Relationships and Related Transactions" in the Company's Proxy
Statement and is incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, AND REPORTS ON FORM 8-K
(a) Financial Statements. Index to financial statements appears on 23.
(b) Reports on Form 8-K. No reports on Form 8-K were filed during the
fourth quarter of the period covered by this Report.
On January 23, 1998, the Registrant filed with the SEC a Current Report on
Form 8-K reporting the restatement of revenues for the second and third quarters
of 1997.
On March 31, 1998, the Registrant filed with the SEC a Current Report on
Form 8-K reporting among other items its actual results for its fiscal year
ended December 31, 1997; an extension for filing the Form 10-K; and preliminary
sales estimates for the first quarter of 1998.
(c) Exhibits.
<TABLE>
<S> <C> <C>
3.01(1) -- Certificate of Incorporation of Registrant
3.02(1) -- Amendment to Certificate of Incorporation of Registrant
dated January 8, 1997
3.03(1) -- Amended and Restated By-laws of Registrant
4.01(1) -- Specimen Certificate for the Common Stock
10.01(1)(3) -- Executive Employment Agreement dated September 30, 1996,
between Registrant and Seth P. Joseph
10.02(1) -- Lease Agreement dated October 7, 1994, between Registrant
and Atrium at Clearwater, Limited
</TABLE>
41
<PAGE> 43
DIGITAL LIGHTWAVE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<S> <C> <C>
10.03(1) -- First Lease Agreement Amendment dated February 16, 1996,
between Registrant and Atrium at Clearwater, Limited
10.04(1) -- Form of Indemnification Agreement between Registrant and
officers and directors of Registrant
10.05(1)(3) -- Digital Lightwave, Inc. 1996 Stock Option Plan
10.06(3) -- Digital Lightwave, Inc. Employee Stock Purchase Plan
10.07(2) -- Second Lease Amendment, dated September 10, 1997, between
Registrant and Atrium At Clearwater, Limited
10.08(2) -- Lease Agreement, dated June 30, 1997, between Registrant and
Pinellas Business Center, Inc.
10.09(2) -- Lease Agreement, dated September 26, 1997, between
Registrant and Monmouth/Atlantic Realty Associates
10.10 -- L.P. Lease Agreement, dated January 9, 1998, between
Registrant and Orix Hogan-Burt Pinellas Venture.
10.11 -- First Lease Amendment, dated February 18, 1998, between
Registrant and Orix Hogan-Burt Pinellas Venture.
10.12 -- First Lease Amendment, dated September 25, 1997, between
Registrant and Monmouth/Atlantic Realty Associates L.P.
10.13 -- Second Lease Amendment, dated February 23, 1998, between
Registrant and Monmouth/Atlantic Realty Associates L.P.
10.14(3) -- Employment Agreement, dated February 27, 1998, between
Registrant and Steven H. Grant.
23.01 -- Consent of Coopers & Lybrand L.L.P.
24.01 -- Power of Attorney (included on the signature page to this
Report)
27.01 -- Financial Data Schedule
</TABLE>
- ---------------
(1) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's Registration Statement on Form S-1, File
No. 333-09457, declared effective by the Securities and Exchange Commission
on February 5, 1997.
(2) Incorporated by reference to the exhibit filed in connection with the
Registrant's Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1997.
(3) Identifies a management contract or compensatory plan or arrangement of the
Registrant.
42
<PAGE> 44
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
DIGITAL LIGHTWAVE, INC.
By: /s/ BRYAN J. ZWAN
------------------------------------
Bryan J. Zwan
Chief Executive Officer and
President
Date: April 15, 1998
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bryan J. Zwan and Steven H. Grant, jointly and
severally, as his or her attorney-in-fact, each with the power of substitution,
for him or her in any and all capacities, to sign any amendments to this Report
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Commission, hereby ratifying and confirming all that each of
said attorneys-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ BRYAN J. ZWAN Chairman of the Board, Chief April 15, 1998
- ----------------------------------------------------- Executive Officer, President
Bryan J. Zwan and Director (Principal
Executive Officer)
/s/ STEVEN H. GRANT Executive Vice President, April 15, 1998
- ----------------------------------------------------- Finance, Chief Financial
Steven H. Grant Officer and Secretary
(Principal Financial and
Accounting Officer)
/s/ WILLIAM F. HAMILTON Director April 15, 1998
- -----------------------------------------------------
William F. Hamilton
/s/ WILLIAM JEFFERSON MARSHALL Director April 15, 1998
- -----------------------------------------------------
William Jefferson Marshall
/s/ WILLIAM SEIFERT Director April 15, 1998
- -----------------------------------------------------
William Seifert
</TABLE>
43
<PAGE> 1
EXHIBIT 10.10
LEASE AGREEMENT
BETWEEN
ORIX HOGAN - BURT PINELLAS VENTURE
as Landlord
AND
DIGITAL LIGHTWAVE, INC.
as Tenant
EFFECTIVE DATE: JANUARY 9, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. TERM OF LEASE........................................................................................2
1.1. Initial Term of Lease..................................................................2
1.2. Lease Renewal Options..................................................................3
1.3 Initial Occupancy......................................................................3
2. DESIGN AND CONSTRUCTION OF IMPROVEMENTS..............................................................4
2.1. The Building and Other Improvements....................................................4
2.2 Basic Design Services..................................................................5
2.3 Preparation of Plans and Specifications................................................7
2.4 Design of Tenant Improvements.........................................................10
2.5 Construction of the Landlord's Work and Tenant Improvements...........................10
2.6. Change Orders.........................................................................14
2.7. Correction of Improvements............................................................15
2.8. Savings, Contingency and Cost.........................................................16
2.9. Books and Records.....................................................................16
2.10. Landlord's Failure to Timely Deliver..................................................16
2.11. Outside Delivery Date.................................................................17
2.12 Alternative Dispute Resolution (ADR)..................................................17
2.13. Tenant Improvements and Tenant Allowance..............................................18
2.14. Tenant Installation Work..............................................................19
3. RENT................................................................................................20
3.1. Rent..................................................................................20
3.2. Delinquent Rental Payments............................................................22
4. USE OF DEMISED PREMISES.............................................................................23
4.1. Permitted Use.........................................................................23
4.2. Preservation of Demised Premises......................................................23
5. HAZARDOUS SUBSTANCES................................................................................23
5.1. Tenant's Covenants Regarding Hazardous Substances.....................................23
5.2. Landlord's Covenants Regarding Hazardous Substances...................................25
6. OPERATING EXPENSES..................................................................................27
6.1. Payment of Operating Expenses.........................................................27
6.2. Definition of Operating Expenses......................................................27
6.3. Certain Exclusions from Operating Expenses............................................28
7. PAYMENT OF TAXES, ASSESSMENTS, ETC..................................................................30
7.1. Payment of Impositions................................................................30
7.2. Tenant's Right to Contest Impositions.................................................31
7.3. Levies and Other Taxes................................................................31
7.4. Evidence of Payment...................................................................32
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
7.5. Landlord's Right to Contest Impositions...............................................32
7.6 Installment Payments..................................................................32
8. INSURANCE...........................................................................................32
8.1. Landlord's Casualty Insurance Obligations.............................................32
8.2. Tenant's Liability and Other Insurance Coverage.......................................33
8.3. Landlord's Liability Insurance Coverage...............................................33
8.4. Extended Coverage Insurance Provisions................................................34
8.5. General Insurance Requirements........................................................34
8.6. Waiver of Subrogation.................................................................34
8.7. Tenant's Personal Property Coverage...................................................34
8.8. Unearned Premiums.....................................................................34
8.9. Blanket Insurance Coverage............................................................34
9. UTILITIES...........................................................................................35
10. REPAIRS.............................................................................................35
10.1 Landlord's Repairs....................................................................35
10.1 Tenant's Repairs......................................................................35
10.2. Maintenance...........................................................................36
10.3. Prohibition Against Waste.............................................................36
11. COMPLIANCE WITH LAWS AND ORDINANCES.................................................................36
11.1. Compliance with Laws and Ordinances...................................................36
11.2 Compliance with Permitted Encumbrances................................................37
11.3 Tenant's Right to Contest Laws and Ordinances.........................................38
12. MECHANIC'S LIENS AND OTHER LIENS....................................................................38
12.1. Freedom from Liens....................................................................38
12.2. Landlord's Indemnification............................................................39
12.3. Removal of Liens......................................................................39
13. INTENT OF PARTIES...................................................................................39
13.1. No Abatement..........................................................................39
13.2. Entry by Landlord.....................................................................40
13.3. Interest on Unpaid Amounts............................................................40
14. DEFAULTS............................................................................................40
14.1 Event of Default......................................................................40
14.2. Reletting by Landlord.................................................................41
14.3. Survival of Tenant's Obligations......................................................41
14.4. Damages...............................................................................42
14.5 Landlord's Default....................................................................42
14.6. No Waiver.............................................................................43
14.7. Remedies Cumulative...................................................................43
14.8. Bankruptcy............................................................................43
14.9. Waiver by Tenant......................................................................44
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
15. DESTRUCTION AND RESTORATION.........................................................................44
15.1. Destruction and Restoration...........................................................44
15.2. Application of Insurance Proceeds.....................................................44
15.3. Continuance of Tenant's Obligations...................................................44
15.4. Completion of Restoration.............................................................44
15.5. Adjustment of Rent and Termination of Lease...........................................45
16. CONDEMNATION........................................................................................46
16.1. Condemnation of Entire Demised Premises...............................................46
16.2. Partial Condemnation/Termination of Lease.............................................46
16.3. Partial Condemnation/Continuation of Lease............................................46
16.4. Continuance of Obligations............................................................46
16.5. Adjustment of Rent....................................................................48
16.6. Determination of "Material Partial Condemnation"
and "Minor Partial Condemnation;" Arbitration.........................................48
17. ASSIGNMENT, SUBLETTING, ETC.........................................................................48
17.1. Restriction on Transfer (Transfer Requiring Landlord Consent).........................48
17.2. Transfers.............................................................................48
18. SUBORDINATION, NONDISTURBANCE, NOTICE TO MORTGAGEE AND ATTORNMENT...................................49
18.1. Subordination and Attornment by Tenant................................................49
19. SIGNS...............................................................................................49
20. CHANGES AND ALTERATIONS.............................................................................50
20.1. Tenant's Changes and Alterations......................................................50
21. INDEMNITY...........................................................................................52
21.1 Indemnity of Landlord.................................................................52
21.2. Indemnity of Tenant...................................................................52
21.3. Defense Provisions....................................................................53
22. MISCELLANEOUS PROVISIONS............................................................................53
22.1. Entry by Landlord.....................................................................53
22.2. Exhibition of Demised Premises........................................................54
22.3. Notices...............................................................................54
22.4. Quiet Enjoyment.......................................................................55
22.5. Landlord's Continuing Obligations.....................................................55
22.6. Estoppel..............................................................................56
22.7. Delivery of Corporate Documents.......................................................56
22.8. Short Form Lease......................................................................57
22.9. Severability..........................................................................57
22.10. Successors and Assigns................................................................57
22.11. Captions..............................................................................57
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
22.12. Relationship of Parties...............................................................57
22.13. Entire Agreement......................................................................58
22.14. No Merger.............................................................................58
22.15. No Surrender During Lease Term........................................................58
22.16. Surrender of Demised Premises.........................................................58
22.17. Holding Over..........................................................................59
22.18. Survival..............................................................................59
22.19. Attorneys' Fees.......................................................................59
22.20. Landlord's Limited Liability. ........................................................59
22.21. Broker's Commissions..................................................................59
22.22. Covenants, Representations and Warranties.............................................60
22.23. Landlord's and Tenant's Permission, Consent or Approval...............................60
22.24. FORUM AND VENUE FOR LEGAL PROCEEDINGS/WAIVER OF JURY TRIAL............................60
22.25. Arbitration...........................................................................61
22.26. Counterparts; Expiration of Lease Agreement; "Effective Date".........................61
23. EARLY CANCELLATION OPTION.......................................................................62
24. DECLARATION OF COVENANTS........................................................................62
25. STREET NAME.....................................................................................62
26. PURCHASE OPTION.................................................................................63
27. TENANT'S LETTER OF CREDIT.......................................................................63
28. PURCHASE AND SALE AGREEMENT ....................................................................65
29. LANDLORD'S LETTER OF CREDIT. ...................................................................66
30. AGREEMENT TO PROVIDE LANDLORD'S LETTER OF CREDIT................................................66
Exhibit A -- Land
Exhibit B -- Permitted Encumbrances
Exhibit C -- Preliminary Outline Specifications and Conceptual Plans
Exhibit D -- Landlord's Work and Tenant Improvements Schedule
Exhibit E -- Landlord's Work and Tenant Improvements Cost Schedule
Exhibit F -- Declaration of Covenants, Conditions and Restrictions of
Bayside Concourse
Exhibit G -- Terms of Sale and Purchase
Exhibit H -- Form of Tenant's Letter of Credit
Exhibit I -- Form of Landlord's Letter of Credit
</TABLE>
iv
<PAGE> 6
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease Agreement" or "Lease"), made as of the
"Effective Date" (as defined in Section 22.26), by and between ORIX HOGAN - BURT
PINELLAS VENTURE ("Landlord"), and Digital Lightwave, Inc.
("Tenant").
WITNESSETH:
Landlord, for and in consideration of the rents, covenants and agreements
hereinafter reserved, mentioned and contained on the part of Tenant, its
successors and assigns, to be paid, kept, observed and performed, has leased,
rented, let and demised, and by these presents does lease, rent, let and demise
unto Tenant, and Tenant does hereby take and hire, upon and subject to the
conditions and limitations hereinafter expressed, all that parcel of land
situated in the County of Pinellas and State of Florida, described in Exhibit
"A" attached hereto and made a part hereof, together with any appurtenant
easements described in said Exhibit "A" (the "Land"), the Building (as
hereinafter defined), together with all Other Improvements (as hereinafter
defined). The term "Demised Premises" means (i) a three-story building of
approximately 92,225 "Rentable Square Feet" (as such term is defined in Section
3.1(e) of this Lease Agreement), which includes a three-story atrium lobby on
the first floor (including a first-class lobby and entrance), and open atrium
space on each of the second and third floors (the "Building"), (ii) a free
standing parking garage for the exclusive use of Tenant, consisting of no less
than 450 parking spaces, of which no less than 200 parking spaces will be under
cover, with a card-reader or other access card system installed ("Garage"), and
(iii) all other improvements, machinery, equipment, fixtures and other property,
real, personal or mixed (except Tenant's trade fixtures) installed or located on
the Land or within the Building and Garage, together with all additions,
alterations and replacements thereof (the "Other Improvements"). The Demised
Premises are subject to the easements, restrictions, reservations and other
encumbrances (the "Permitted Encumbrances") set forth in said Exhibit "B", true
and complete copies of which Landlord has furnished to Tenant at or prior to the
execution and delivery hereof. Without limiting Tenant's permitted uses of the
Demised Premises as set forth in this Lease Agreement, Landlord and Tenant
acknowledge that Tenant's intended primary use of the Demised Premises will be
for software and hardware design, testing, research, development, and general
office use ("Tenant's Intended Use"). Effective on the date that Landlord
purchases the Land, Landlord represents and warrants to Tenant (a) that Landlord
is the sole owner in fee simple of the Land and (b) that the Landlord has the
full right and authority to lease to Tenant the Demised Premises and to
otherwise enter into this Lease Agreement on the terms and conditions set forth
herein and (c) Landlord is not in default in any of its obligations to any
existing mortgagee or ground lessor and Landlord is current in all its payments
to said mortgagee(s) or ground lessor, (d) the Demised Premises is located in a
municipal zoning classification that permits Tenant to use the Demised Premises
for Tenant's Intended Use and related incidental uses, and (e) that none of the
Permitted Encumbrances materially and adversely affect Tenant's ability to use
the Demised Premises for Tenant's Intended Use.
1
<PAGE> 7
1. TERM OF LEASE.
1.1. Initial Term of Lease.
(a) Commencement Date. This Lease Agreement shall be for
an initial term of ten (10) years (the "Initial Term") commencing on the
"Commencement Date" (as hereinafter defined). The term "Commencement Date" shall
mean the earlier of the date of (i) Substantial Completion, as hereinafter
defined in Section 1.1(b) below, and delivery of an SNDA, as hereinafter
defined, pursuant to the terms and conditions set forth in this Lease Agreement
or (ii) the occupancy of the Demised Premises and commencement of business
operations by Tenant or (iii) the date that Substantial Completion would have
occurred but for the delay caused or contributed to by any act or neglect of
Tenant or those acting for or under Tenant (including Tenant Change Orders,
Tenant Installation Work, Tenant Installation Contractor and Tenant Installation
Contracts) (calculated in whole days for the actual number of days of delay),
including delays attributable to Tenant's responses to or delivery of plans and
specifications as set forth in Article 2 of this Lease or Tenant's selection of
special or long lead time items beyond Landlord's control (provided Landlord
notifies Tenant in writing of any long lead items and the actual number of days
it will take to receive such items within ten (10) business days after
Landlord's initial receipt of plans or specifications including such item, and
then only to the extent that such delay could not be avoided or reduced by
Landlord's timely ordering of such item, allowing for such long lead time.)
(collectively "Tenant Delay"). If Landlord desires to allege that Tenant Delay
has occurred, no later than ten (10) business days after the occurrence of a
Tenant Delay, Landlord shall deliver Tenant written notice that an alleged
Tenant Delay has occurred; provided, however, that with respect to subparagraph
(iii) hereof, to the extent any other Force Majeure Event coincides with an
event of Tenant Delay, the date that Substantial Completion would have occurred
but for such other Force Majeure Event will be extended "day for day" to the
extent of such other Force Majeure Event.
(b) Substantial Completion. The term "Substantial
Completion" shall mean the last to occur of:
(i) Certificate of Occupancy -- the day that Landlord
receives and copies Tenant with notice that a Certificate of Occupancy,
(without condition which could reasonably limit, or increase the
expense of, Tenant's use of the Demised Premises), which permits Tenant
to use the Demised Premises for Tenant's Intended Use has been issued
by Pinellas County, Florida with respect to the Landlord's Work and
Tenant Improvements (as hereinafter defined);
(ii) Certificate of Architect -- the day that
Landlord receives and copies Tenant with an original, fully executed
Certificate of Substantial Completion on AIA Form G704 (1994) and
issued by Smallwood, Reynolds, Stewart, Stewart & Associates, Inc.
("Architect") certifying to Landlord and Tenant that the Building and
Tenant Improvements, to the best of its knowledge and belief after due
review and inspection, have been substantially completed in accordance
with the Final Construction Documents, with the only exception of
so-called "punch list" items which, in the aggregate, do not materially
interfere with the Tenant's use and enjoyment of the Building and
Tenant Improvements;
2
<PAGE> 8
(iii) Certificate of Completion -- the day that
Landlord and Tenant receive a Certificate of Substantial Completion on
AIA Form G704 (1994) from the engineer of record certifying to Landlord
and Tenant that the Off-Site Improvements (hereinafter defined in
Section 2.1) required to construct and operate the Building and Tenant
Improvements to the best of its knowledge and belief after due review
and inspection have been substantially completed in accordance with the
Final Construction Documents, with the only exception of so called
punch list items which, in the aggregate, do not materially interfere
with the Tenant's use and enjoyment of the Building and Tenant
Improvements;
(iv) November 15, 1998.
(d) Lease Year. For the purposes of this Lease
Agreement, the term "Lease Year" shall be defined as follows. The first Lease
Year shall begin on the Commencement Date and if the Commencement Date occurs
on the first day of the month, the first Lease Year will end 12 months
thereafter. If the Commencement Date occurs on other than the first day of a
calendar month the first Lease Year will end on the last day of the twelfth
(12th) calendar month in which the Commencement Date occurred. (For example, if
the Commencement Date occurs on November 6, 1998, the first Lease Year ends on
November 30, 1999 and Rent shall be paid to Landlord, prorated for the
November, 1998 period and paid in full for each month thereafter for the First
Lease Year). Each subsequent Lease Year shall commence on the day immediately
following the last day of the preceding Lease Year and shall continue for a
period of twelve (12) full calendar months. Promptly after the Commencement
Date the parties shall execute and deliver a written statement which verifies
the actual Commencement Date.
1.2. Lease Renewal Options.
(a) Tenant shall have the right to renew this Lease Agreement
for two (2) additional terms of five (5) years (each hereinafter referred to as
a "Renewal Term"), provided that (i) Tenant gives Landlord written notice of its
renewal of this Lease Agreement no later than one (1) year prior to the
expiration of the Initial Term or Renewal Term, as the case may be, and (ii)
Tenant is not then in default under the terms of this Lease Agreement, beyond
any applicable notice and cure periods, and this Lease Agreement is in full
force and effect. References to the "Term" shall mean the term of this Lease
Agreement, and shall include the Initial Term and, if applicable, the Renewal
Term(s). The Base Rent to be paid during the first year of each Renewal Term
shall be equal to ninety-five percent (95%) of the Market Rent then being paid
by other tenants occupying a similar amount of space at a comparable building in
Pinellas County, Florida and each year thereafter the Base Rent shall be
escalated by the Market Rent escalations (the "Renewal Base Rent"). In the event
Tenant provides Landlord with notice of its exercise of its option to renew,
Tenant and Landlord shall negotiate in good faith to determine the Market Rent
to be paid during the applicable Renewal Term, based upon the foregoing
criteria. If the parties are unable to agree upon the market rent as described
above within thirty (30) days after the giving of Tenant's notice of intent to
renew, then the parties shall submit the dispute to binding arbitration as
provided in Section 22.25 below. For purposes of this provision, the term
"Market Rent" shall include consideration of rent together with additional
terms, including, but not limited to, concessions, allowances and annual rent
escalations, if applicable.
1.3 Initial Occupancy. Except as provided in this paragraph,
Tenant shall initially occupy sixty-seven percent (67%) of the Building during
the first Lease Year (the "Initial Occupancy Space"), and Base Rent payable
during that period shall be based on the area contained in the Initial Occupancy
Space.
3
<PAGE> 9
Commencing on the first day of the Second Lease Year (the "Expansion Space
Commencement Date") and continuing through the remainder of the Term, Tenant
shall pay Rent for and have the right to occupy the entire Building. Tenant may
exercise the option to occupy that portion of the Building not included in the
Initial Occupancy Space (the "Expansion Space") before the commencement of the
Second Lease Year by written notice to Landlord given no later than 245 days
after the Commencement Date (the "Expansion Space Notice"). Within ninety (90)
days after (i) receipt by Landlord of the Expansion Space Notice and Tenant and
Landlord approved plans and specifications and (ii) the date on which permits
related thereto are available for issuance, subject to delays for delivery of
"long lead" items and Force Majeure Events, Landlord shall complete construction
of the Tenant Improvements in the Expansion Space, obtain the certificate of
occupancy for such space, and deliver possession thereof to Tenant. Only those
items selected by Tenant and identified as "long lead" items in Landlord's
written notice to Tenant given within ten (10) business days after Landlord's
initial receipt of specifications containing such items will be deemed "long
lead" items for purposes of this Lease. If the Tenant occupies the Expansion
Space during the first Lease Year, then commencing on the day of Tenant's
occupancy of the Expansion Space and continuing until the Expansion Space
Commencement Date, Base Rent shall be increased by a per diem amount equal to
the cost of constructing the Tenant Improvements (based on the contract price
under the construction contract approved by Tenant in the same manner as
provided in Article 2 hereof) in the Expansion Space, multiplied by 8.5%, and
divided by 365 (the "Expansion Space Base Rent"). If Tenant elects not to
deliver to Landlord the Expansion Space Notice, Landlord shall complete the
Tenant Improvements for the Expansion Space and deliver possession to Tenant of
the Expansion Space on or before the Expansion Space Commencement Date, provided
that Tenant and Landlord approved plans and specifications have been received by
Landlord no later than 245 days following the Commencement Date and permits are
available for issuance no later than 275 days following the Commencement Date.
If the approved plans and specifications are not delivered to Landlord within
245 days of the Commencement Date, each day that such delivery is delayed shall
be deemed a Tenant Delay. In the event Landlord fails to achieve Substantial
Completion of the Tenant Improvements within the Expansion Space and deliver
possession of the Expansion Space on or before the date provided in this
Section, and such delay is not due to delays for delivery of "long lead" items
or Force Majeure Events, Landlord shall pay to Tenant as liquidated damages for
such delay, and not as a penalty, an amount equal to $.08 per square foot for
each square foot of Expansion Space for which Substantial Completion has not
been achieved for each day of delay beyond the date specified in this Section
for such delivery. Base Rent shall commence on the Expansion Space on the
earlier of (i) the Expansion Space Commencement Date, as such date may be
extended by Force Majeure Events or (ii) occupancy of the Expansion Space and
commencement of business operations in the Expansion Space by Tenant or (iii)
the date Substantial Completion of the Tenant Improvements in the Expansion
Space would have occurred but for the actual number of days of delay caused by
Tenant Delay. If Landlord desires to allege that Tenant Delay has occurred, no
later than ten (10) business days after the occurrence of a Tenant Delay,
Landlord shall deliver Tenant written notice that an alleged Tenant Delay has
occurred, provided, however, that with respect to Section 1.1(a)(iii) hereof, to
the extent any other Force Majeure Event coincides with an event of Tenant
Delay, the date that Substantial Completion would have occurred but for such
other Force Majeure Event of the Tenant Improvements in the Expansion Space will
be extended "day for day" to the extent of such other Force Majeure Event.
2. DESIGN AND CONSTRUCTION OF IMPROVEMENTS
2.1. The Building and Other Improvements. The Landlord shall design and
construct or have constructed pursuant to this Lease Agreement (i) the Building
(ii) the Garage (iii) the Other Improvements
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as that term is defined herein, (iv) off-site improvements necessary or
appropriate for the use of the Demised Premises, including but not limited to
exterior entrances features, landscaping, utilities, retention and waterways,
culverts, sidewalks, and roadway improvements providing reasonable access from
49th Street and Roosevelt Boulevard to the Land ("Off-Site Improvements") and
(v) environmental mitigation and enhancement to the extent permitted or required
by applicable governmental agencies to the Demised Premises (the foregoing are
referred to herein as the "Landlord's Work"). The Landlord's Work will be
designed and constructed by Landlord at its sole cost and expense in accordance
with the terms hereof and delivered to Tenant in "turnkey" condition. The
Landlord's Work to be constructed by Landlord shall be designed in accordance
with the Conceptual Plans and Specifications (as hereinafter defined in Section
2.3(a)) and constructed in accordance with the Tenant-approved Final
Construction Documents (as hereinafter defined in Section 2.3(d)). Landlord
agrees to furnish at Landlord's sole cost and expense all of the material,
labor, and equipment for the construction of the Landlord's Work. The Landlord's
Work shall be constructed in a good and workmanlike manner in accordance with
the Tenant approved Final Construction Documents and Landlord agrees to complete
the construction thereof in accordance with the applicable building code in
effect at the time of issuance of the building permits and all other applicable
Laws as they are presently interpreted and enforced by the governmental bodies
having jurisdiction thereof and in accordance with the Minimum Building
Standards (as hereinafter defined). The Off-Site Improvements shall be designed
and constructed in a first-class manner, substantially consistent with the
complex known as "Fountain Square Office Park" located in Tampa, Florida (except
for concrete tiered retention ponds).
2.2 Basic Design Services.
(a) All design services required to be performed hereunder or
caused to be performed hereunder by the Landlord for the Landlord's Work,
including, without limitation, the preparation of the Design Development
Documents and the Final Construction Documents, both as hereinafter defined,
shall be performed by the Architect who is a qualified, licensed architect who
has been selected by Landlord and The Perry Company ("Design/Builder"). All such
basic design services for the Landlord's Work shall be paid by the Landlord. The
professional obligations of the Architect shall be undertaken and performed in
the interest of the Landlord, Tenant and the Design/Builder. Landlord has
employed the Design/Builder and Design/Builder has employed (i) Architect as the
architect of record to prepare the Conceptual Plans and Specifications, the
Design Development Documents and the Final Construction Documents, (ii) Peridian
as the landscape architect (the "Landscape Architect"), and (ii) Be-Mac's
Landscaping & Maintenance Service as the landscape contractor (the "Landscape
Contractor"). Landlord may not replace Design-Builder, the Landscape Architect
or the Landscape Contractor, without the written approval of Tenant, which
approval shall not be unreasonably withheld or delayed. Neither the Landlord nor
the Design-Builder may replace the Architect as the architect of record without
the written approval of Tenant, which approval shall not be unreasonably
withheld or delayed.
(b) The Landlord represents and warrants to the Tenant that
Landlord shall provide all documents and materials necessary for the
Design/Builder to submit an accurate and complete proposal. The Landlord further
acknowledges and confirms that it has examined the site and all physical, legal
and other conditions affecting the Landlord's Work and is fully familiar with
the site and with such conditions and that Landlord shall fully inform the
Design/Builder of all such information. The Landlord specifically represents and
warrants to the Tenant that it is intimately familiar with the physical
condition of the real property and has examined (1) the nature, location, and
character of the Landlord's Work and the site, including, without limitation,
the surface and subsurface conditions of the site and all structures and
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obstructions thereon and thereunder, both natural and man-made, and all surface
and subsurface water conditions of the site; (2) the nature, location, and
character of the general area in which the Landlord's Work is located, including
without limitation, its climatic conditions, available labor supply and labor
costs, and available equipment supply and equipment costs; and (3) the quality
and quantity of all materials, supplies, tools, equipment, labor, and
professional services necessary to complete the Landlord's Work and Tenant
Improvements in the manner and within the cost and time required by this Lease
Agreement. The Landlord shall be responsible for any surface, subsurface,
subsurface water or soil conditions upon the site, and the cost of any remedial
action necessitated thereby shall be the sole responsibility of the Landlord.
(c) Landlord shall prepare and Tenant shall review no fewer
than three (3) separate sets of plans and specifications for each phase of the
design of Landlord's Work. The phases of the design of the Landlord's Work are
referred to in this Lease Agreement as the Conceptual Plans and Specifications
(as hereinafter defined in Section 2.3(a)), the Design Development Documents (as
hereinafter defined in Section 2.3(c) and the Final Construction Documents (as
hereinafter defined in Section 2.3d). Both parties agree that the Conceptual
Plans and Specifications have been agreed upon and, except through Change Orders
in accordance with Section 2.6, that Tenant shall have no further right to
review and approve the Conceptual Plans and Specifications. Both parties
acknowledge that the Conceptual Plans and Specifications contain certain minimum
building performance standards (the "Minimum Building Standards") which must be
met by the Landlord, notwithstanding the Tenant's approval of the subsequent
Design Development Documents and the Final Construction Documents. No change
whatsoever may be made to the Minimum Building Standards set forth in the
Conceptual Plans and Specifications, unless the Tenant shall approve, in
Tenant's sole and absolute discretion, such change or omission pursuant to a
written Change Order, numbered and dated, except for minor nonmaterial changes
not involving a change in completion time, or in the aesthetics, quality or
functionality of the Building.
(d) Conflicts. Subject to paragraph 2.2(c) above, if there
shall be any conflict between the Conceptual Plans and Specifications (as
hereinafter defined in Section 2.3(a)) and the Design Development Documents (as
hereinafter defined in Section 2.3(c) (as approved in writing by Tenant or
amended by any Change Order properly executed and delivered by the Tenant and
the Landlord pursuant hereto), the Design Development Documents shall prevail
and govern, except that the Landlord shall be responsible to design and
construct the Landlord's Work to meet all applicable statutes, regulations,
ordinances, codes, orders, and approvals, including without limitation, the
Americans with Disabilities Act of 1990 and the Florida Accessibility Code
(collectively referred to herein as the "Laws") and the Minimum Building
Standards. Notwithstanding the foregoing, the Landlord shall be responsible to
identify in writing to Tenant any material changes to the previously approved
plans and specifications and shall be responsible for any errors and omissions
from the previously approved plans and specifications (notwithstanding Tenant's
approval of the current plans and specifications). If there shall be any
conflict between the Design Development Documents and the Final Construction
Documents (as approved in writing by Tenant or amended by any Change Order
properly executed and delivered by the Tenant and the Landlord pursuant hereto),
the Final Construction Documents shall prevail and govern, except that the
Landlord shall be responsible to design and construct the Landlord's Work to
meet all Laws (as defined herein) and the Minimum Building Standards.
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2.3 Preparation of Plans and Specifications.
(a) Conceptual Plans and Specifications. The Landlord's Work
shall include and incorporate all those certain design and program elements and
Minimum Building Standards contained in the Conceptual Plans and Specifications,
which Conceptual Plans and Specifications are attached hereto as Exhibit "C" and
incorporated herein by reference (collectively, the "Conceptual Plans and
Specifications"). The Conceptual Plans and Specifications have been approved by
Landlord and Tenant. Landlord shall deliver to Tenant data disks on Autocad v.12
or later for the Conceptual Plans and Specifications.
(b) Review Period. The term "Review Period" shall mean a five
(5) business day period after receipt by Tenant at the address set forth in
Section 22.3 below, as the case may be for applicable items requiring a Tenant
response or a five (5) business day period after receipt by Landlord at the
address set forth in Section 22.3 below, as the case may be for applicable items
requiring a Landlord response, during which such party shall review the
submitted documents and provide comment or approve such documents pursuant to
the terms set forth in this Section 2.3. Landlord shall arrange for meetings, no
less often than weekly, among Landlord, Tenant, Tenant's consultants,
Design/Builder, and Architect to review the progress of the preparation of the
plans and specifications and to obtain input and comments on an on-going basis.
Such meetings shall be at times and locations convenient for all attendees.
(c) Design Development Documents. The Landlord shall prepare
or cause to be prepared detailed and complete design development drawings and
specifications (collectively, the "Design Development Documents") based on,
consistent with, and being the logical extension of the Conceptual Plans and
Specifications. The Design Development Documents shall indicate the requirements
for the construction of the Landlord's Work, locations of all mechanical,
plumbing and HVAC systems. The Design Development Documents shall be completed
by the Landlord and five (5) full-size sets thereof submitted to the Tenant on
or prior to January 15, 1998 ("Initial Design Deadline"). Tenant shall have a
Review Period to approve, reject or comment on, in writing, a submission of the
proposed Design Development Documents furnished by Landlord. The Tenant shall
respond in writing within the Review Period and if such response does not
unconditionally approve Landlord's submission, Tenant shall include in its
response a reasonable explanation of those comments that are not
self-explanatory ("Tenant's Response"). Upon Landlord's receipt of Tenant's
Response, Landlord and Tenant shall meet, and endeavor to agree on changes in
the proposed Design Development Documents that are not inconsistent with the
Conceptual Plans and Specifications, within a Review Period commencing upon
Landlord's receipt of Tenant's Response. If the proposed Design Development
Documents are not approved within this Review Period, or one of the parties
reasonably determines that an agreement cannot be reached within this Review
Period, the proposed Design Development Documents of Landlord and the proposed
Design Development Documents of Tenant shall be immediately submitted to the
"Independent Architect" in accordance with Section 2.3(i). Once the Design
Development Documents have been approved by Landlord and Tenant in accordance
herewith, or deemed approved by the Independent Architect, such Design
Development Documents shall be deemed incorporated into this Lease Agreement.
(d) Final Construction Documents. Once the Design Development
Documents are approved, the Landlord shall prepare the permanent set of final
construction documents (collectively, the "Final Construction Documents"). The
Final Construction Documents shall be completed by Landlord and five (5)
full-size sets submitted to the Tenant within forty-five (45) calendar days of
approval of the Design Development Documents ("Second Design Deadline"). Tenant
shall have a Review Period to approve, reject or comment on, in writing, a
submission of the proposed Final Construction Documents furnished by Landlord.
Tenant shall respond in writing within the Review Period and if such response
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does not unconditionally approve Landlord's submission, Tenant shall include in
its response a reasonable explanation of those comments that are not
self-explanatory ("Tenant's Response"). Upon Landlord's receipt of Tenant's
Response, Landlord and Tenant shall meet, and endeavor to agree on changes in
the proposed Final Construction Documents that are not inconsistent with the
approved Design Development Documents, within a Review Period commencing upon
Landlord's receipt of the Tenant's Response. If the proposed Final Construction
Documents are not approved within this Review Period, or one of the parties
reasonably determines that an agreement cannot be reached within this Review
Period, the proposed Final Construction Documents of the Landlord and the
proposed Final Construction Documents of the Tenant shall be immediately
submitted to the "Independent Architect" in accordance with Section 2.3(i). Once
the Final Construction Documents have been approved by Landlord and Tenant in
accordance herewith, or deemed approved by the Independent Architect, such Final
Construction Documents shall be deemed incorporated into this Lease.
(e) Notice of Changes. Upon any submission by the Landlord to
the Tenant, whether such submission is required hereunder or not, the Landlord
shall notify the Tenant in writing of any Change Orders that may be contemplated
or required by the documents included in such submission. In giving such written
notice, the Landlord shall separately list and identify each proposed change,
omission or addition for which there is to be a Change Order. No such change
shall be effective unless and until it is approved by the Tenant and the
Landlord pursuant to a separate Change Order. Pricing for all Change Orders
shall follow the procedures set forth in Section 2.6 of this Lease Agreement.
(f) Land Use Approvals. Prior to the Construction Start Date
(as hereinafter defined in Section 2.5(e)), the Landlord shall, at Landlord's
sole cost and expense, obtain all land use, zoning, platting, site plan, and all
other approvals necessary to permit the commencement of construction of the
Landlord's Work and shall be solely responsible for all costs, fees and
submissions necessary to obtain such approvals.
(g) Design Responsibility. The Tenant has provided to the
Landlord all relevant information requested by the Landlord regarding the
Tenant's requirements for the Landlord's Work, and these have been incorporated
into the Conceptual Plans and Specifications. The Tenant is relying on the
Landlord to request all such necessary information and to advise the Tenant as
to the best appropriate design and construction materials, means and methods to
achieve a Class-A office building and related improvements within the agreed
budget for the Landlord's Work. The providing of any information by the Tenant
shall not relieve the Landlord of its obligations to design and construct the
Landlord's Work in accordance with the Conceptual Plans and Specifications. The
Tenant has reserved the right to make changes in such requirements; provided,
however, that any such changes shall require a Change Order signed by the Tenant
and the Landlord, numbered and dated, in accordance with Section 2.6(c) of this
Lease Agreement.
(h) Feasible Schedule. The Landlord has carefully examined and
analyzed the site, the Conceptual Plans and Specifications and all factors
related to its proposal for the Landlord's Work and agrees that the Substantial
Completion Date is feasible and reasonable. The Landlord further agrees that,
the Landlord and the Design/Builder are better able than the Tenant, the
Tenant's consultants or any other of the Tenant's representatives to provide the
services herein for the Tenant in the Tenant's best interest, and to assess such
feasibility and reasonableness, and do fully accept the risks of substantially
completing the Landlord's Work prior to the Substantial Completion Date, subject
to the other terms and conditions of this Lease Agreement.
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(i) Independent Architect. Any disputes arising in connection
with the approvals required under this Section 2.3, consistency of each of the
phases of plans and specifications under Subsections 2.3(b) and (d) above, or
errors and omissions from previously approved plans and specifications shall be
referred to Hellmuth, Obata & Kassabaum (the "Independent Architect") for
binding arbitration. These binding arbitration proceedings shall be conducted in
Tampa, Florida, and the parties acknowledge that Design/Builder shall be
included as a party to the binding arbitration. With respect to any binding
arbitration conducted under this Section, the Independent Architect shall enter
a final written decision with five (5) business days of the receipt of the
proposed Design Development Documents or the proposed Final Construction
Documents, as applicable, and written comments of each party. Neither party can
dismiss the Independent Architect from appointment hereunder without the written
consent of the other party. Should the Independent Architect be dismissed by
mutual agreement of the parties, or should the Independent Architect resign this
appointment, a new independent third party architect will be selected by mutual
agreement of the parties. The Independent Architect's reasonable fees and costs
shall be shared equally between Landlord and Tenant.
(j) Control of Plans. The drawings, specifications and other
documents prepared by or on behalf of the Landlord pursuant to this Lease
Agreement (including, without limitation, the Conceptual Plans and
Specifications, the Design Development Documents and the Final Construction
Documents (collectively the "Plans")) shall be conditionally assigned to the
Tenant upon commencement of the Lease Agreement to secure the completion of the
Landlord's Work and to secure that such plans cannot be used on any other
project during the term of this Lease without the consent of Tenant. The Tenant
shall be granted by the Landlord, Design/Builder and Architect, the absolute
right to use the drawings, specifications and other documents for the Landlord's
Work and Tenant Improvements in order to complete the Landlord's Work in the
event of default by the Landlord under the Lease Agreement; provided, however,
that Tenant shall indemnify, defend and hold Landlord, Design/Builder and
Architect harmless from and against any and all claims, suits, actions,
judgments, losses, expenses or damages resulting from:
(1) Tenant's use of this work product on other projects, if
Landlord, Design/Builder and Architect are not retained in
connection therewith;
(2) Tenant's use for additions to the Landlord's Work and
Tenant Improvements after completion if Landlord,
Design/Builder and Architect are not retained in
connection therewith; or
(3) Tenant's use in completing the Landlord's Work and Tenant
Improvements after termination of the Lease Agreement, but
only if and to the extent such documents are modified by
Tenant subsequent to termination of the Lease Agreement
for reasons other than errors, omissions, or changes in
Laws.
During the term of this Lease, neither the Landlord, the Design/Builder nor the
Architect or any of its sub-consultants shall claim any copyright in the Plans
and Tenant shall be conditionally assigned all common law, statutory and other
reserve rights with respect thereto, by the Landlord, Design/Builder and
Architect and other sub-consultants. Copies of the Plans shall be delivered to
the Tenant upon commencement of the Lease Agreement and the Plans shall not be
used by the Landlord, Design/Builder, Architect or any of its sub-consultants on
other projects without the specific written consent of the Tenant in each
instance.
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(k) Delivery of Documentation. For the purposes of Section 2
of this Lease Agreement, all documentation requiring approval by the Landlord or
by Tenant, shall be delivered by commercial courier or overnight express
service, such as Federal Express, to the attention of the specific individuals
designated by Landlord and Tenant herein.
(l) Default of Tenant. In the event that Tenant is in default
under this Lease and as a result the Lease is terminated, the conditional
assignment to Tenant under Section 2.3(j) shall automatically terminate and
Landlord shall, in addition and supplemental to its other rights and remedies
under this Lease, be entitled to immediately, and, without restriction, use the
Plans for any purpose.
2.4 Design of Tenant Improvements. Tenant has engaged its own
architect and space planner to provide "permit drawings" ("Tenant Drawings")
relating to the design of the tenant improvements (the "Tenant Improvements"),
Tenant shall pay for all services of its architect and space planner. The Tenant
Drawings shall be consistent with the Design Development Drawings and shall
include, at a minimum, the following:
(i) dimension partition plans (type and location);
(ii) reflected ceiling plans;
(iii) interior details;
(iv) materials selection and finish schedule;
(v) door schedule;
(vi) Tenant's mechanical, electrical and plumbing
requirements (including riser diagrams);
(vii) fire sprinkler layout;
(viii) preliminary hardware specification schedule;
and
(ix) details/section drawings of any special
construction items.
Landlord's only payment obligation is for the Tenant Improvement Allowance set
forth in Section 2.13 of this Lease Agreement. Subject to all other terms and
conditions relating to the Tenant Improvements, including the costs of such
Tenant Improvements, Landlord shall be responsible for constructing the Tenant
Improvements (in accordance with the Tenant Drawings) together with Landlord's
Work pursuant to and in accordance with the dates (subject to Force Majeure
Events) set forth in the Landlord's Work and Tenant Improvements Schedule
attached hereto as Exhibit "D", as the same may be amended from time to time in
accordance with the terms of this Lease (the "Landlord's Work and Tenant
Improvements Schedule") and pursuant to the requirements of Section 2.5 below.
2.5 Construction of the Landlord's Work and Tenant Improvements.
(a) Generally. Construction services shall be performed by
Design/Builder who is a qualified licensed construction contractor.
Design/Builder shall be paid by the Landlord and shall act in the interest of
the Landlord and the Tenant.
(b) Design/Builder. Landlord shall enter into a Design/Build
Agreement for construction of the Landlord's Work on the basis of a stipulated
sum. This Design/Build Agreement shall be on an "open-book" format but Tenant
shall not have any right to audit the charges under the Design/Build Agreement
or contest any payments made by Landlord to Design/Builder. However, nothing
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herein shall be deemed an assignment, reduction or abrogation of Landlord's
obligations and liabilities to Tenant hereunder with respect to the Design
Development Documents and Final Construction Documents and for construction of
the Landlord's Work and Tenant Improvements.
(c) Permitting and General Conditions.
(i) The Landlord shall be responsible for filing
any and all documents required to obtain all necessary permits and
approvals from governmental authorities having jurisdiction over the
Landlord's Work, and shall pay for all permits and fees;
(ii) Landlord shall provide or cause to be provided,
and shall pay for, design services, labor, materials, equipment, tools,
construction equipment and machinery, water, heat, utilities,
transportation and other facilities and services necessary for proper
execution and completion of the Landlord's Work, whether temporary or
permanent and whether or not incorporated or to be incorporated in the
Landlord's Work;
(iii) The Landlord shall cause the Landlord's Work
and Tenant Improvements to be performed using the Landlord's best skill
and attention. The Landlord shall be responsible for and shall
coordinate all construction means, methods, techniques, sequences and
procedures;
(iv) The Landlord shall keep the Tenant regularly
informed of the progress and quality of the Landlord's Work and Tenant
Improvements. The Landlord and Design/Builder shall provide reasonable
access to the Tenant, the Tenant's employees, consultants and
representatives in order to inspect the Landlord's Work and Tenant
Improvements;
(v) The Landlord hereby warrants to the Tenant that
all materials and equipment incorporated in the Landlord's Work and
Tenant Improvements will be new unless otherwise specified, and that
the Landlord's Work and Tenant Improvements will be of good quality,
free from faults and defects, and in conformance with the requirements
of Conceptual Plans and Specifications, the Design Development
Documents, the Final Construction Documents. Landlord's Work and Tenant
Improvements not conforming to such requirements shall be corrected in
accordance herewith;
(vi) The Landlord shall pay all sales, consumer, use
and similar taxes arising in connection with the Landlord's Work and
Tenant Improvements, and shall secure and pay for all required building
and other permits and governmental fees, impact fees, fees in the
nature of contributions in aid of construction, zoning, platting and
other development fees and costs (and the fees and costs of attorneys,
consultants and others necessary to obtain any such approvals, plats,
site plans or other approvals or permits), licenses and inspections
necessary for the proper execution and completion of the Landlord's
Work and Tenant Improvements.
(vii) The Landlord shall give notices as required by,
and shall comply with all laws, ordinances, rules, regulations and
lawful orders of public authorities relating to the Landlord's Work and
Tenant Improvements.
(viii) The Landlord shall pay any applicable
royalties and license fees arising in connection with the Landlord's
Work. The Landlord shall defend suits or claims for
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infringement of patent rights and shall indemnify and save the Tenant,
the Tenant's subsidiaries, parents and affiliates and their respective
shareholders, directors, agents and employees, harmless from and
against loss or liability on account thereof. The provisions of this
Section shall survive the expiration or prior termination of this
Lease.
(ix) The Landlord shall be liable to the Tenant for
acts and omissions of its contractors, agents and employees and parties
who have been retained by Landlord to perform a portion of the
Landlord's Work and Tenant Improvements, including the respective
agents and employees of such parties.
(x) The Landlord shall keep the premises free from
accumulation of waste materials and rubbish caused by the operations of
the Landlord, Design/Builder, any subcontractor or any other party
performing any portion of the Landlord's Work and Tenant Improvements.
At the completion of the Landlord's Work and Tenant Improvements, the
Landlord shall remove from and about the Landlord's Work and Tenant
Improvements all tools, construction equipment, machinery, surplus
materials, waste materials and rubbish.
(xi) The Landlord shall require Design/Builder to
enforce strict discipline and good order among the persons carrying out
the Landlord's Work and Tenant Improvements. The Landlord shall not
permit unfit persons or persons not skilled in tasks assigned to them
to be employed by Design/Builder in connection with the Landlord's Work
and Tenant Improvements. Landlord shall also be responsible for using
its best efforts to have Design/Builder maintain labor peace and
harmony at all times during the term of construction, and shall require
Design/Builder at all times to use its best and diligent efforts and
judgment as an experienced contractor to adopt and implement policies
and practices designed to avoid work stoppages, slowdowns, disputes or
strikes where reasonably possible and practical under the
circumstances.
(xii) The Landlord shall maintain in good order at
the site one record copy of the Design Development Documents, Final
Construction Documents, product data, samples, shop drawings, Change
Orders and other modifications relating to the Landlord's Work and
Tenant Improvements, marked currently to record changes made during
construction. Such record copy shall be delivered to the Tenant upon
completion of the Landlord's Work and Tenant Improvements, or upon any
prior termination of this Lease Agreement. The provisions of this
Section shall survive the expiration or prior termination of this Lease
Agreement.
(d) Substantial Completion. The Landlord shall notify the
Tenant when "Substantial Completion" (as defined in Section 1.1) has occurred.
Any such notice delivered to the Tenant pursuant to the preceding sentence (a
"Substantial Completion Notice") shall (a) specify the date the Landlord claims
to be the date on which Substantial Completion, as the case may be, occurred,
(b) with respect to that portion of the Landlord's Work and Tenant Improvements
delivered, set forth the Landlord's position regarding the respective
responsibilities of the Landlord and the Tenant for security, maintenance, heat,
utilities, damage to such work and insurance, (c) with respect to that portion
of the Landlord's Work and Tenant Improvements delivered, set forth a list of
items remaining to be completed or corrected in connection with such, and (d)
specify the date or dates by which each of the remaining items referred to in
clause (c) above shall be completed or corrected, not to exceed thirty (30)
calendar days from the date of Substantial Completion (unless the punchlist item
involves a long lead time item in which case such work shall be completed within
ten (10) days after receipt of such long lead item, but in any event within
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ninety (90) calendar days of Substantial Completion. Should Landlord fail to
complete or correct any such items within the timeframe set forth above, Tenant
may, upon ten (10) calendar days written notice to Landlord, make such
correction and have the option, at the sole discretion of the Tenant, to deduct
said amount as an offset against Rent due by Tenant or to accept such amount in
cash from the Landlord. If the Tenant shall agree with the date of Substantial
Completion, as the case may be, specified in such Substantial Completion Notice,
the Tenant shall confirm such date in a written notice delivered to the Landlord
within five (5) business days from receipt of the Substantial Completion Notice.
If the Tenant shall disagree with the date of Substantial Completion, as the
case may be, specified in such Substantial Completion Notice, the Tenant shall
so notify the Landlord within such five (5) business day period, setting forth
with reasonable specificity the Tenant's basis for asserting that one or more of
the criteria for Substantial Completion, as the case may be, have not been
satisfied. The Landlord and Tenant shall then work together for a period of ten
(10) calendar days in an effort to resolve their differences with respect to
Substantial Completion. Should Landlord and Tenant be unable to resolve their
disputes regarding Substantial Completion, the dispute shall be resolved by the
appropriate court of jurisdiction in Hillsborough County, Florida. Tenant's
obligation to pay Rent shall commence on the date of Substantial Completion
specified in the Substantial Completion Notice, regardless of whether Tenant
disagrees with the date of Substantial Completion and elects to follow the
procedure set forth in this subjection (d) to resolve the disagreement.
(e) The Landlord's Work to be performed by the Landlord shall
commence immediately upon approval of the Final Construction Documents and
Design/Builder's receipt of all required building permits (the "Construction
Start Date"). The Landlord's Work shall be completed to the point of
Substantial Completion by no later than November 15, 1998, (the "Substantial
Completion Date"); provided, however, if delay is caused or contributed to by
(i) Tenant Delay; (ii) labor disputes (except if such dispute could have
reasonably been prevented by Landlord), (iii) casualties, (iv) acts of God or
the public enemy, (v) governmental embargo restrictions, (vi) shortages of
fuel, labor or building materials, action or non-action of public utilities or
of local, state or federal governments affecting the work or change in laws
which result in the need for additional time to complete the Landlord's Work
and Tenant Improvements (but only to the extent such delay could not be avoided
or reduced by Landlord's duly and timely ordering of or arranging for such
fuel, labor or materials allowing for foreseeable shortages, action or
non-action of public utilities or of local, state or federal governments);
(vii) rain days in excess of the [twelve (12)] rain days which are currently
built into the Landlord's Work and Tenant Improvements Schedule in accordance
with Subparagraph 2.5(f) below (except that a rain day shall not be deemed to
have occurred if the rain does not result in an actual day's delay), (viii)
delays caused by or attributable to Tenant's architect relating to the
preparation of plans and specifications for the Tenant Improvements, and (ix)
other causes beyond Landlord's reasonable control, then the Substantial
Completion Date and Outside Delivery Date shall be extended for the additional
time caused by such delay. The delays resulting from the events described in
this Section 2.5(e) are each hereinafter referred to as "Force Majeure Events."
No condition or remediation related to the matters set forth in that certain
environmental report prepared by Allied Environmental dated December 22, 1997
shall constitute a Force Majeure Event. Any Force Majeure Event which occurs
with respect to the Land and the Improvements to be constructed thereon under
the Purchase Agreement (as defined in Section 28 hereinafter) prior to or
subsequent to Landlord's acquisition of the Land shall constitute a Force
Majeure Event under this Lease, it being understood that the date of the
acquisition of the Land (and any delay in the date of acquisition) is not a
Force Majeure Event and is immaterial to the determination of a Force Majeure
Event (except to the extent such delay in acquisition is directly attributable
to a Force Majeure Event). Landlord shall make a claim for an extension of the
Substantial Completion Date and/or the Outside Delivery Date
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<PAGE> 19
due to a Force Majeure Event in writing to Tenant within seven (7) business days
of the occurrence for which the Landlord is making such claim. Such notice shall
specify in detail, the cause of the claimed delay, and the specific portion of
the Landlord's Work and Tenant Improvements that the Landlord believes has been
delayed. In the event Landlord and Tenant cannot agree on an extension of time
due to a Force Majeure Event, the dispute will be resolved, if necessary, when
the disputes involving the Substantial Completion Date are resolved by a court
of appropriate jurisdiction in Hillsborough County, Florida. The Landlord hereby
waives, and the Design/Builder shall waive in the Design/Build Agreement, any
additional compensation, increase in Rent, damages, costs or expenses due to a
Force Majeure Event, unless caused by Tenant's wrongful or negligent act or
omission or a change in applicable laws since the date of issuance of the
building permit.
(f) As set forth in Section 2.5(e) above, rain days have been
calculated based upon historical national weather service data describing the
average number of rain days per month in the Tampa Bay area. Rain days in excess
of [twelve (12)] shall be the basis for an extension to the Substantial
Completion Date and the Outside Delivery Date. Rain days shall be determined by
Design/Builder who shall maintain a rain gauge on or adjacent to the Landlord's
Work and Tenant Improvements. For the purpose of this Lease, a rain day will be
one on which at least 0.25 inches of rain is observed by Design/Builder in the
rain gauge and such rain actually causes a delay in the Landlord's Work or
Tenant Improvements. In addition, once the Building has been closed in, any rain
days which actually impact the completion of landscaping work or asphalt paving
work necessary to obtain the Certificate of Occupancy shall also be deemed to be
Force Majeure Events under the Lease Agreement, allowing day for day slippage in
the Substantial Completion Date and Outside Delivery Date.
(g) The Landlord has represented to the Tenant, as a material
inducement to the Tenant's execution of this Lease, that the Landlord has
sufficient resources, and will devote sufficient resources, to carefully and
expertly manage the Landlord's Work and Tenant Improvements so that the
Substantial Completion Date can be met, and the Landlord will provide such
management with the highest degree of all reasonable care and diligence.
2.6. Change Orders.
(a) "Change Order" shall mean a written order signed by the
Tenant and the Landlord authorizing a change in the Conceptual Plans and
Specifications or Design Development Plans or Final Construction Documents
and/or an adjustment in the Substantial Completion Date and Outside Delivery
Date. The Substantial Completion Date and Outside Delivery Date may be changed
only by Change Order or as a result of Force Majeure Events.
(b) The Tenant, without invalidating this Lease, may order
changes in the Conceptual Plans and Specifications or Design Development Plans
or Final Construction Documents consisting of additions, deletions or other
revisions. Such changes shall be documented by a Change Order, signed by
Landlord and Tenant. Such changes in the work shall be authorized by Change
Order, and shall be performed in accordance with the applicable conditions
hereof.
(c) If the aggregate of all Change Orders for the Landlord's
Work that are directed by Tenant (such referred to herein as a "Tenant-Directed
Scope Change"), result in a net increase, or a net decrease, to the Contract Sum
provided in the Design/Build Agreement, the Landlord, if a net increase, or
Tenant, if a net decrease, shall be entitled to reimbursement for such net
increase or decrease ("Change
14
<PAGE> 20
Order Reimbursement") directly attributable to The Tenant-Directed Scope Change.
To the extent that the Change Order Reimbursement is an increase to the Contract
Sum, the Tenant shall be responsible to pay Landlord the extent of such increase
within 15 days after receipt of the invoice submitted by Landlord. In the event
the Change Order Reimbursement is a decrease in the Contract Sum, Landlord at
its option, shall either (i) pay the amount of the decrease to Tenant in the
form of cash, (ii) pay the amount of the decrease to Tenant by set off against
the next Rent payment or payments due, or (iii) reduce the Base Rent by an
amount calculated according to the following formula: the amount of the decrease
times 9.5% divided by the Rentable Square Feet of the Building equals reduction
in Base Rent. The Landlord shall confirm to Tenant's reasonable satisfaction all
of the work incurred under a Change Order. In addition, the Tenant shall be
entitled to audit the books and records of the Landlord and the Design/Builder
in order to verify the Cost of the Change (as defined below) and the amount of
the Change Order Reimbursement.
(d) The "Cost of the Change" shall be based on, in order of
preference, a (1) mutually accepted lump sum, (2), where appropriate, on unit
prices for a particular component of the work, or (3) the reasonable
expenditures, together with an allowance for Landlord's Development Fee of five
percent (5%) (except for item (vii) below), of Design/Builder based on the
following:
(i) costs of labor engaged by the Design/Builder,
including typical and customary fringe benefits and workers' compensation
insurance, involved in performing the Change Orders, including payments to
Design/Builder's subcontractors.
(ii) costs of materials, supplies, equipment
incorporated into the work,
(iii) rental value of equipment and machinery;
(iv) a markup of eleven (11%) percent on the foregoing
items (i), (ii), and (iii) for Design/Builder's overhead and profit;
(v) additional actual direct costs of supervision by
field office personnel of Design/Builder;
(vi) additional bond premium, if any, caused by the
Change Order; and
(vii) fees of the Architect necessary for the Change
Order, together with a markup of five percent (5%).
(e) Once the pricing of a Change Order has been provided
by Landlord to Tenant, the Tenant shall have a Review Period to approve and sign
the Change Order. Any delays in approval of a Change Order beyond a Review
Period shall be deemed a Force Majeure Event which shall extend the Substantial
Completion Date and Outside Delivery Date.
2.7. Correction of Improvements.
(a) For a period of one year from the date of Substantial
Completion, the Landlord shall warrant the Landlord's Work and Tenant
Improvements against defects, non-conformities and poor workmanship and labor,
and, at its sole cost, shall promptly correct the Landlord's Work and Tenant
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<PAGE> 21
Improvements which are not in conformity with the Final Construction Documents,
whether observed before or after the Construction Start Date and whether or not
fabricated, installed or completed. Any such cost will not be considered part of
Operating Expenses.
(b) If the Landlord shall fail in any material way to correct
work as required or shall fail in any material way to carry out work in
accordance with the Final Construction Documents, the Tenant may order the
Landlord to stop the work, or any portion thereof, until the cause for such
order has been eliminated; provided, however, that (i) such right to stop the
work shall be in addition to, and not to the exclusion of, any other rights or
remedies which may be available to the Tenant hereunder or at law or in equity
by reason of such failure on the part of the Landlord, and (ii) Tenant's right
to stop the work shall not give rise to a duty on the part of the Tenant to
exercise the right for benefit of the Landlord or the Design/Builder or any
other person or entity. If Tenant's stop work order was erroneous because the
work was indeed substantially in accordance with the Final Construction
Documents, any delays to the work shall be deemed to be Force Majeure Events
under Section 2.5(e)(i) of this Lease and Tenant shall be responsible for all
direct actual damages incurred by Landlord as a result of Tenant erroneously
stopping work.
2.8. Savings, Contingency and Cost. The anticipated budget for
construction of the Landlord's Work includes a contingency fund of $230,000.00
("Contingency Fund") as described in the Project Cost Schedule attached hereto
as Exhibit "E" (the "Project Cost Schedule"). This Contingency Fund shall
increase to the extent any actual costs not payable under the Design Build
Agreement are less than those anticipated under the Project Cost Schedule. The
Contingency Fund shall be used for (in the following order of priority: (i)
unforeseeable engineering, architectural and permitting costs, (ii) any
unanticipated costs of Landlord in completing the Landlord's Work, (iii)
interest rate increases, (iv) enhancement of lobby areas as required by Tenant,
bathrooms, cabling, signage, and (v) Tenant's legal fees (not to exceed
$40,000.00). Landlord shall provide evidence satisfactory to Tenant of the
expenditure of the Contingency Fund.
2.9. Books and Records. The Landlord will follow generally accepted
accounting principles and will keep complete and detailed books and records
which will accurately reflect the Landlord's costs and expenses in connection
with the Landlord's Work and Tenant Improvements, including, without limitation,
bank statements and other documents. Such books and records and any and all
supporting data (including work papers) shall at all reasonable times during the
course of construction and within three (3) years thereafter be open and
available for inspection, audit and photocopying by the Tenant, its authorized
representatives and its inside and outside auditors. The Landlord shall cause
all agreements entered into between it and the Design/Builder or consultants to
provide the Tenant with the right to inspect, audit and photocopy such parties'
books and records and any other supporting data relating to the Landlord's Work
and Tenant Improvements. These books, records and supporting data (including wok
papers) relating to the Landlord's Work and Tenant Improvements shall be
retained and available for reference for a period of three (3) years after the
work has been completed.
2.10. Landlord's Failure to Timely Deliver. Landlord shall
deliver the substantially completed Landlord's Work and Tenant Improvements by
the Substantial Completion Date; provided, however, that the Substantial
Completion Date may be extended "day for day" due to Force Majeure Events.
Subject to such Force Majeure Events, in the event Substantial Completion takes
place after the Substantial Completion Date, Landlord shall pay to Tenant as
liquidated damages (and not as a penalty) an amount equal to two times the per
diem Base Rent (calculated on that portion of the Demised Premises scheduled
16
<PAGE> 22
for occupancy on the scheduled Substantial Completion Date) for each day on
which the Landlord's Work and Tenant Improvements have not achieved Substantial
Completion for the period ending forty-five (45) days from the Substantial
Completion Date, as extended by Force Majeure Events (the "Liquidated Damages
Date"). In the event Subsequent Completion takes place subsequent to the
Liquidated Damages Date, and prior to the Outside Delivery Date, as defined in
Section 2.11, Landlord shall pay to Tenant its actual damages incurred by the
failure of Landlord to meet the Substantial Completion Date (including, without
limitation, costs incurred in connection with relocation or occupancy and upfit
of temporary space and associated design, legal and moving expenses and subject
to Tenant's good faith duty to mitigate damages, but in no event will Tenant be
obligated to take substitute premises of a class or condition less than the
Demised Premises), such actual damages not to exceed $1,000,000.00. Such payment
shall, at Landlord's option, be in the form of cash or as an offset against Rent
due by Tenant, and shall be subject to the limitations set forth in Paragraph
2.11 below.
2.11. Outside Delivery Date. In the event Landlord fails or is
unable to achieve Substantial Completion of the Landlord's Work and Tenant
Improvements within one hundred and eighty (180) calendar days from the
Substantial Completion Date, as such date may be extended by Force Majeure
Events (the "Outside Delivery Date"), then Tenant may, in its sole and absolute
discretion, cancel and terminate this Lease Agreement by providing written
notice thereof to Landlord within thirty (30) calendar days following the
Outside Delivery Date (but prior to Substantial Completion), whereupon this
Lease Agreement shall terminate effective as of the date set forth in Tenant's
notice. Landlord's obligation to pay the damages in accordance with Section 2.10
above, through the termination date only, shall survive such termination, and
such amount shall be paid to Tenant within thirty (30) calendar days after the
date of Tenant's notice, or Tenant's right to terminate under this Section 2.11
is waived.
2.12 Alternative Dispute Resolution (ADR).
(a) Any dispute or disagreement between Landlord and Tenant
which is of a technical nature, and specifically identified in this Lease
Agreement as being subject to resolution by the Independent Architect ("ADR
Disputes") may be submitted by either party to the ADR Procedures as set forth
in this Section 2.12 of this Lease Agreement. Unless ADR is specifically
provided for a particular matter or a dispute, the dispute or disagreement may
be resolved by litigation in the appropriate court of jurisdiction in
Hillsborough County, Florida, or by other means if such other means are agreed
upon in writing by all parties to this Lease Agreement. This ADR provision shall
be inserted into the Design/Build Agreement, the agreement between
Design/Builder and the Architect and all agreements between Design/Builder
and/or Architect and its engineers.
(b) Landlord and Tenant represent to each other that neither
has ever engaged the Independent Architect, has never asked the Independent
Architect to respond to any Request for Qualifications, Request for Proposals,
Invitation to Bid, or the like, to provide services in the future to Landlord or
Tenant, respectively, or affiliated parties, officers, directors or employees,
or shareholders thereof, and they shall not engage (nor have they had any
discussions with respect to engagement of) Independent Architect within a period
of two (2) years from the date hereof, to perform any services for Landlord or
Tenant, respectively. The non-prevailing party (as determined by the Independent
Architect) shall pay the fees of the Independent Architect.
(c) The Independent Architect shall have the authority to
investigate the ADR Dispute, request copies of documents from all necessary
parties, and to hold hearings in order to seek resolution
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<PAGE> 23
of the ADR Disputes. All necessary parties shall be required to attend such
hearing. Such hearing shall be informal in nature and all interested parties
shall have the right to be heard and present evidence. The decision of the
Independent Architect shall be rendered in writing and the same shall be final
and binding on all parties.
2.13. Tenant Improvements and Tenant Allowance.
(a) Project Cost Schedule: The Project Cost Schedule
reflects a total Project Cost of Thirteen Million Eight Hundred Ninety-Nine
Thousand Two Hundred Seventy-Seven and No/100ths Dollars ($13,899,277.00). The
Project Cost Schedule includes Special Tenant Improvement Allowances totaling
Five Hundred Seventy-Two Thousand One Hundred Ninety-Four and No/100ths Dollars
($572,194.00) for Exterior Modifications (representing $338,631.00) and
Atrium/Interior Modifications (representing $233,563.00) as shown on the Budget
Reconciliation attached to the Project Cost Schedule; the sum of One Million
Eight Hundred Forty-Four Thousand Five Hundred and No/100ths ($1,844,500.00) as
the "Tenant Improvement Allowance" (at $20.00 per square foot for 92,225 square
feet) for design and installation of the interior improvements ("Tenant
Improvements"); and an additional sum of Seventy Thousand and No/100ths Dollars
($70,000.00) for lobby enhancement. The Exterior Modifications and
Atrium/Interior Modifications are incorporated into the Conceptual Plans and
Specifications. The Exterior Modifications, the Atrium/Interior Modifications,
the Building expansion to 92,225 square feet, the increased Building elevation,
the Architectural Precast Upgrade, as defined below, and the net increase in
soft costs and construction interest result in an aggregate increase of
$1,210,687 to the Project budget. This increase will be funded as follows:
<TABLE>
<S> <C> <C>
(i) $436,963 - funded by Base Rent;
$175,000 - paid by Landlord;
$ 70,000 - lobby enhancement allowance
-------- provided by Landlord
$681,963 Total
</TABLE>
(ii) Subject to adjustments in the actual costs of Tenant
Improvements and the Special Tenant Improvement
Allowance Items (as defined below), Tenant agrees to
pay to Landlord the sum of Five Hundred Twenty-Eight
Thousand Seven Hundred Twenty-Five and No/100ths
Dollars ($528,725.00) as follows: (a) Cushman &
Wakefield of Florida, Inc. has reduced its real
estate commission by the amount of $247,000.00; and
(b) the remainder due shall be paid by Tenant in the
form of cash within fifteen (15) days of receipt of
an invoice submitted by Landlord or as an offset
against any unused Tenant Improvement Allowance or
Special Improvement Allowance (together, referred to
as the "Tenant Allowance") or a combination of both
cash and offset. In connection therewith, it is
understood that the Tenant Improvement Allowance
shall only be applied or used as an offset pursuant
to the preceding subsection (b) to the extent of
space occupied by Tenant in the Demised Premises.
(b) Special Tenant Allowance Items/Architectural Precast
Upgrade. The Preliminary Outline Specifications which are part of the Minimum
Building Requirements, includes both Building Shell items and specifically
designated "Special Tenant Improvements Allowance Items" ("Special Allowance
Items"). The Preliminary Outline Specifications also includes an item entitled
"Architectural
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<PAGE> 24
Precast Upgrade in the amount of $188,496.00." All items described in the
Preliminary Outline Specifications and depicted on the Conceptual Plans and
Specifications, excluding only the Special Allowance Items shall be designed and
constructed at Landlord's sole cost and expense. The amount specified for each
Special Allowance Item (each such amount referred to herein as a "Special
Allowance") is to be paid as set forth in subsection (a) above. If the actual
cost of Special Allowance Items exceeds the applicable Special Allowance, the
excess shall be paid by Tenant to the Landlord in accordance with the procedures
set forth in Paragraph 2.6(d) hereof. All Special Allowance Items and the
Architectural Precast Upgrade shall be performed on an open book basis, as set
forth below in this Paragraph 2.13. Notwithstanding the foregoing, the
Architectural Precast Upgrade cost shall be paid by Landlord as a stipulated sum
and Tenant shall not be entitled to any savings or bear any expense in
connection therewith. If the Tenant changes the Architectural Precast Upgrade,
such shall be treated as a Change Order under Section 2.6.
(c) Tenant Improvement Allowance Deficit/Tenant Allowance
Surplus. If the cost of the Tenant Improvements exceeds the Tenant Improvement
Allowance, Tenant shall pay any difference between the Tenant Improvement
Allowance and the actual costs of the Tenant Improvements as approved in the
Tenant's plans within fifteen (15) calendar days of receipt of an invoice,
together with a copy of the payment application showing that the work has been
completed, from Landlord. In the event the actual aggregate cost of the Tenant
Improvements and the Special Tenant Allowance Items is less than the aggregate
Tenant Allowance (the "Tenant Savings"), the Tenant Savings shall be first
credited against any amount owed by Tenant to Landlord under this Section, and
if any Tenant Savings thereafter remain, Landlord, at its option, shall either
(i) pay the amount of the Tenant Savings to Tenant in the form of cash, (ii) pay
the amount of Tenant Savings to Tenant by set off against the next Rent payment
or payments due, or (iii) reduce the Base Rent by an amount calculated according
to the following formula: Tenant Savings x 9.5% divided by the Rentable Square
Feet of the Building = reduction in Base Rent per Rentable Square Foot. The
Tenant Improvements shall be constructed by Landlord under an open book "cost
plus with a guaranteed maximum price" construction contract with Design/Builder
based upon Tenant Drawings approved by Landlord, Tenant and Design/Builder and
the cost of the work and fee shall be in accordance with the Change Order
procedure set forth in Section 2.6. The Special Tenant Improvement Allowance
Items, although part of the Design/Builder's contract for the Building, shall be
constructed by Landlord for an "open book" cost. Subcontractors ("Tenant
Improvement Subcontractors") qualified to perform such work shall be selected
from bids or proposals submitted by not less than (3) qualified Florida-licensed
subcontractors in each trade category as selected by Design/Builder. All
subcontractors on the list prepared by the Design/Builder shall be requested to
submit bids or proposals and, unless otherwise approved by Tenant in writing,
the lowest responsible bid or proposal shall be selected by the Design/Builder
to perform the applicable trade category of the work. The Design/Builder shall
review the drawings prepared by Tenant and report in writing, before commencing
the work, any inconsistencies or conflicts with the Building as constructed or
designed. The Design/Builder shall have no claims for additional compensation
for inconsistencies or conflicts which should have been discovered and were not
timely reported.
2.14. Tenant Installation Work. Tenant may purchase materials for
nonstructural, interior work (including without limitation, electrical
generator(s), UPS systems, and supplemental air conditioning units (which work,
together with telecommunications cabling, is herein referred to as "Tenant
Installation Work"). Tenant may also engage independent entities to enter into
contracts to perform telecommunications cabling and other work not requiring
licensed trades. Contractors who are engaged to perform the Tenant Installation
Work are collectively referred to as "Tenant Installation Contractors",
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<PAGE> 25
and the contracts pursuant to which the Additional Tenant Installation Work will
be performed are collectively referred to as the "Tenant Installation
Contracts"; provided however that the definitions of Tenant Installation Work,
Tenant Installation Contractors and Tenant Installation Contracts expressly
excludes Landlord's Work and Tenant Improvements pursuant to other provisions of
this Lease Agreement.
Tenant agrees (i) that the Tenant Installation Work shall comply with
the Project Schedule, as the same may be amended from time to time, (ii) that
the Tenant Installation Contractors shall provide evidence of insurance coverage
satisfactory to Landlord and (iii) that the Tenant Installation Work shall be
completed lien free and at absolutely no cost to Landlord.
The parties acknowledge the Tenant Installation Work will need to be
scheduled with other work under the Project Schedule (which other work will be
supervised by Landlord's Design/Builder). Tenant intends to independently
procure and provide certain equipment and materials to be installed pursuant to
the Tenant Installation Contracts, and Tenant shall be responsible for direct
payment of the costs of performing Tenant's Installation Work, including,
without limitation, payment for equipment and materials to be procured by Tenant
in connection with the Tenant's Installation Work; accordingly such costs shall
not constitute a Tenant approved cost increase and no portion of the Rent shall
be increased on the basis of such costs. Landlord agrees to use its reasonable
efforts to cause the Design/Builder to accept coordination responsibility for
Tenant's Installation Work. Tenant's selection of a contractor to perform
Tenant's Installation Work shall be subject to Landlord's reasonable approval,
not to be unreasonably withheld or delayed.
Tenant agrees to give Landlord at least thirty (30) days prior written
notice before commencing or ordering any Tenant Installation Work so that
Landlord's Design/Builder may schedule the Tenant Installation Work so that
Landlord and Design Builder may include Tenant Installation Work on the Project
Schedule.
3. RENT.
3.1. Rent. In consideration of the leasing of the Demised Premises,
Tenant covenants to pay Landlord, without previous demand therefor and without
any right of set off or deduction whatsoever (except as otherwise expressly
provided hereinafter), at the address of Landlord set forth hereinbelow, or at
such other place as Landlord may from time to time designate in writing, a
rental for the initial Term of this Lease Agreement as follows:
(a) Rent Components. For the first Lease Year, Tenant shall
pay rent in an amount equal to: (i) $923,154.00 per annum ($14.94 per Rentable
Square Foot) for the Initial Occupancy Space subject to adjustment pursuant to
this Lease Agreement ("Base Rent"), (ii) $5.38 per Rentable Square Foot
contained in the Building, which represents the estimated total annual Operating
Expenses as defined in Section 6.2 (the "Estimated First Year Operating
Expenses") for the entire Demised Premises, and (iii) Expansion Space Base Rent,
if any, pursuant to Section 1.3.
For the Second Lease Year, Tenant shall pay Base Rent in an
amount equal to (i) $1,400,897.76 per annum ($15.19 per Rentable Square Foot)
for the Building, subject to adjustment pursuant to this Lease Agreement, and
(ii) $6.00 per Rentable Square Foot contained in the Building,
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<PAGE> 26
which represents the estimated total of the Operating Expenses as defined in
Section 6.2 (the "Estimated Second Year Operating Expenses").
Rent shall be payable in equal monthly installments, in
advance, together with any Federal, State, local or other jurisdictional sales
or use taxes. If the Term commences on other than the first day of a calendar
month, or ends on other than the last day of a calendar month, Rent for such
partial calendar month shall be prorated.
(b) Base Rent Increase. Beginning on the first day of the
third Lease Year, and continuing annually thereafter, the annual Base Rent per
Rentable Square Foot shall be increased by an amount equal to two and one-half
percent (2.5%) per Lease Year, cumulative and compounded. During any Renewal
Term, the annual Base Rent, commencing in the Second Lease Year and each Lease
Year thereafter of such Renewal Term, shall be increased in accordance with the
determination of Market Rent as provided in Section 1.2(a).
(c) Operating Expense Adjustments. The parties each
acknowledge that the Rent shall provide for increases or decreases, as the case
may be, in Operating Expenses (as hereinafter defined) which may hereafter
affect the Demised Premises. Accordingly, during the Term of this Lease, and any
extension(s) thereof, beginning with the first day of any Lease Year, Tenant
shall pay to Landlord estimated Operating Expenses (the "Estimated Operating
Expenses") in the form of additional rent, plus any applicable taxes
("Additional Rent"). The Estimated Operating Expenses shall be calculated on a
calendar year basis and prior to each calendar year, Landlord shall provide
Tenant with the basis for the Estimated Operating Expense for the upcoming
calendar year.
To implement and effect the foregoing obligation of Tenant to
pay the Estimated Operating Expenses, Tenant shall pay Landlord on or before the
first day of each calendar month one-twelfth (1/12) of the amount of the
Estimated Operating Expenses for the then current Lease Year. There shall be an
annual reconciliation between what Tenant paid and what Tenant should have paid,
and Landlord shall deliver to Tenant a statement reflecting such reconciliation
with a reasonably detailed statement of actual Operating Expenses for the
preceding year, with appropriate back-up data (together, the "Reconciliation
Statement"), within ninety (90) days following the end of each calendar year.
Any amount paid by Tenant which exceeds the actual Operating Expenses due shall
be credited to the next succeeding payment of Estimated Operating Expenses due
under this Section 3.1 (except that if the amount paid exceeds 110% of the
actual Operating Expenses for the preceding year, Landlord shall refund the
overpayment to Tenant simultaneous with the delivery to Tenant of the
Reconciliation Statement). If Tenant has paid less than the correct amount due,
Tenant shall pay the balance within thirty (30) days of receipt of written
notice from Landlord. Tenant's obligation to pay the adjustments described in
this Section 3.1(e) shall survive the expiration or earlier termination of this
Lease.
Tenant shall have ninety (90) days after receipt of a
Reconciliation Statement to notify Landlord of its election to audit the
preceding year's Operating Expenses. Upon such notice, Tenant shall have the
right, by itself, or through its employees or agents, at reasonable times and at
a reasonable place designated by Landlord, to audit Landlord's books and records
in support of the then applicable year-end adjustment calculation. Upon
reasonable notice and at Tenant's expense, Landlord shall forward copies of such
books and records to Tenant for such audit. Tenant agrees that it will not
divulge or disclose to third parties (other than Tenant's attorneys,
accountants, auditors or similar professionals, where in each instance such
"outside" parties have a bona fide "need to know") any data, information, etc.,
disclosed by
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Landlord to Tenant (or its auditors) under the terms and provisions of this
Section 3.1(c). If there is a timely written objection to the Reconciliation
Statement by Tenant, and if Landlord and Tenant are unable to resolve such
objection within thirty (30) days following the delivery by Tenant to Landlord
of such written notice of audit, then Tenant shall immediately thereafter pay
Landlord what Landlord claims is due. The dispute may then be submitted by
Tenant to binding arbitration by the American Arbitration Association in Tampa,
Florida, in accordance with its then prevailing rules. Judgment upon the
arbitration award may be entered in any court in Tampa, Florida, having
jurisdiction. The arbitrators shall have no power to change the provisions of
this Lease. The arbitration panel shall consist of three arbitrators, one of
whom shall be a commercial real estate attorney actively engaged in the practice
of law for at least the last 5 years, another of whom shall be a certified
public accountant actively engaged in the practice of accounting in the
commercial real estate area for at least the last 5 years, and the third of whom
shall be a licensed real estate broker actively engaged in the commercial
leasing brokerage area for at least the last 5 years. Both parties shall
continue to perform their respective Lease obligations during the pendency of
any arbitration proceedings. If it is determined by such arbitration that Tenant
overpaid the amount due, the overpaid amount, together with interest thereon at
the rate of two percent (2%) above the "prime rate" or "base rate" from time to
time announced by NationsBank, N.A. [or its successors] (such rate of interest
is sometimes referred to herein as the "Maximum Rate of Interest and shall be
charged from the date when the same was paid to Landlord until the same shall be
repaid to Tenant, but in no event shall such rate be in excess of the maximum
rate permitted by law), shall be paid by Landlord to Tenant within ten (10)
days, or, at Landlord's election, applied to the Rent next due under this Lease.
For the purposes of that portion of this Lease Agreement dealing with attorney's
fees, Tenant shall not be deemed to be "the prevailing party" unless it is
determined by such arbitration that Tenant overpaid by more than three percent
(3%) of the Operating Expenses. Likewise for the purposes of that portion of
this Lease Agreement dealing with attorney's fees, Landlord shall not be deemed
to be "the prevailing party" unless it is determined by such arbitration that
Tenant has underpaid by more than three percent (3%) the Estimated Increases.
Subject to the foregoing, the arbitrators shall have the power to award
reasonable attorney's fees and reasonable expenses and costs.
(d) Rentable Square Feet. For the purposes of this Lease
Agreement, the term "Rentable Square Feet" shall mean the total square footage
of the three floors of the Building measured from the exterior surface of each
outer wall to the exterior surface of the opposite outer wall. On or before the
date which is thirty (30) days prior to the anticipated Commencement Date,
Landlord shall submit to Tenant a statement in writing, certified as being true
and correct by Landlord's architect, of the exact number of Rentable Square Feet
contained in the Demised Premises. Such calculation and certification shall be
subject to verification by Tenant and/or Tenant's architect at Tenant's cost and
expense. In the event of a dispute as to the Rentable Square Feet, Landlord and
Tenant agree to submit the dispute to the Independent Architect.
3.2. Delinquent Rental Payments. All payments of Base Rent and
Additional Rent (collectively referred to herein as "Rent") shall be payable
without previous demand therefor and without any right of set off or deduction,
except as expressly provided in this Lease Agreement, and in case of nonpayment
of any item of Rent by Tenant when the same is due, Landlord shall have, in
addition to all its other rights and remedies, all of the rights and remedies
available to Landlord under the provisions of this Lease Agreement or by law in
the case of nonpayment of Rent. The performance and observance by Tenant of all
the terms, covenants, conditions and agreements to be performed or observed by
Tenant hereunder shall be performed and observed by Tenant at Tenant's sole cost
and expense. Any installment of Rent or Additional Rent or any other charges
payable by Tenant under the provisions hereof which shall not
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be paid within five (5) days after written notice to Tenant that such
installment is due shall bear interest at the Maximum Rate of Interest from the
date when due. If any such installment is not paid within seven (7) days after
the date when such installment is due, Tenant shall also be obligated to pay a
late fee equal to five percent (5%) of such installment ("Late Fee"), provided,
however, Landlord agrees that the first three (3) Late Fees payable in any
calendar year shall not be due unless Tenant fails to pay such installment
within five (5) business days after written notice to Tenant that each such
installment is due.
4. USE OF DEMISED PREMISES.
4.1. Permitted Use. The Demised Premises including all buildings or
other improvements hereafter erected upon the same shall be used for such
activities as may be lawfully carried on in and about the Demised Premises,
including, without limitation, Tenant's Intended Use. Tenant shall not use or
occupy the same, or knowingly permit them to be used or occupied, contrary to
any statute, rule, order, ordinance, requirement or regulation applicable
thereto, or in any manner which would violate any certificate of occupancy
affecting the same, or which would make void or voidable any insurance then in
force with respect thereto or which would make it impossible to obtain fire or
other insurance thereon required to be furnished hereunder, or which would cause
structural injury to the Demised Premises or cause the value or usefulness of
the Demised Premises, or any portion thereof, substantially to diminish
(reasonable wear and tear excepted), or which would constitute a public or
private nuisance or waste, and Tenant agrees that it will promptly, upon
discovery of any such use, take all necessary steps to compel the discontinuance
of such use.
4.2. Preservation of Demised Premises. Tenant shall not use, suffer, or
permit the Demised Premises, or any portion thereof, to be used by Tenant, any
third party or the public in such manner as might reasonably tend to impair
Landlord's title to the Demised Premises, or any portion thereof, or in such
manner as might reasonably make possible a claim or claims of adverse usage or
adverse possession by the public, as such, or third persons, or of implied
dedication of the Demised Premises, or any portion thereof. Nothing in this
Lease Agreement contained and no action nor inaction by Landlord shall be deemed
or construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or make any agreement that may create, or give rise to
or be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the estate of Landlord in the Demised Premises.
5. HAZARDOUS SUBSTANCES.
5.1. Tenant's Covenants Regarding Hazardous Substances.
(a) In connection with Tenant's use and occupancy of the
Demised Premises, Tenant shall at all times and in all respects comply with all
applicable federal, state and local laws, ordinances and regulations ("Hazardous
Materials Laws") relating to industrial hygiene, environmental protection or the
use, analysis, generation, manufacture, storage, presence, disposal or
transportation of any oil, flammable explosives, asbestos, urea formaldehyde,
radioactive materials or waste, or other hazardous toxic, contaminated or
polluting materials, substances or wastes, including without limitation any
"hazardous substances," "hazardous wastes," "Hazardous Materials" or "toxic
substances" under any such laws, ordinances or regulations (collectively,
"Hazardous Materials").
(b) Tenant shall at its own expense procure, maintain in effect
and comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals required for
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Tenant's use of the Demised Premises, including, without limitation, discharge
of (appropriately treated) materials or waste into or through any sanitary sewer
system serving the Demised Premises (excluding therefrom, however, normal
sanitary sewer discharge, it being understood and agreed by the parties hereto
that Landlord shall be responsible for costs and expenses associated with normal
sanitary sewer permits and authorizations with respect to the Demised Premises).
Except as installed in the Demised Premises or discharged into the sanitary
sewer in strict accordance and conformity with all applicable Hazardous
Materials Laws, Tenant shall cause any and all Hazardous Materials placed or
installed on the Demised Premises by Tenant, its agents, employees or
contractors, to be removed from the Demised Premises and transported solely by
duly licensed haulers to duly licensed facilities for final disposal of such
Hazardous Materials. Tenant shall in all respects, handle, treat, deal with and
manage any and all such Hazardous Materials in, on, under or about the Demised
Premises in complete conformity with all applicable Hazardous Materials Laws and
prudent industry practices regarding the management of such Hazardous Materials.
All reporting obligations imposed by Hazardous Materials Laws regarding such
Hazardous Materials are solely the responsibility of Tenant unless otherwise
required by law. Upon expiration or earlier termination of this Lease, Tenant
shall cause all Hazardous Materials which were installed or placed in the
Demised Premises by Tenant, its agents, employees or contractors, to be removed
from the Demised Premises and transported for use, storage or disposal in
accordance with and in complete compliance with all applicable Hazardous
Materials Laws. Tenant shall not take any remedial action in response to the
presence of any such Hazardous Materials in, on, about or under the Demised
Premises or in any Improvement situated on the Land, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any such Hazardous Materials in any way connected with the
Demised Premises without first notifying Landlord of Tenant's intention to do so
and affording Landlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interest with respect thereto. In
addition, at Landlord's request, Tenant shall remove all tanks or fixtures which
were installed or placed in or on the Demised Premises by Tenant, its agents,
employees or contractors, and which contain or contained or are contaminated
with Hazardous Materials.
(c) Promptly after Tenant acquires actual knowledge of same,
Tenant shall notify Landlord in writing of (i) any enforcement, clean-up,
removal or other governmental or regulatory action instituted, completed or
threatened pursuant to any Hazardous Materials Laws with respect to the Demised
Premises; (ii) any claim made or threatened by any person against Landlord, or
the Demised Premises, relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from or claimed to result from any
Hazardous Materials placed or installed on the Demised Premises by Tenant, its
agents, employees or contractors; and (iii) any reports made to any
environmental agency arising out of or in connection with any such Hazardous
Materials in, on or about the Demised Premises or with respect to any such
Hazardous Materials removed from the Demised Premises, including, any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Tenant shall also provide to Landlord, as promptly as possible, and
in any event within five (5) business days after Tenant first receives or sends
the same, copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the Demised Premises or Tenant's use
thereof. Upon written request therefor by Landlord (to enable Landlord to defend
itself from any claim or charge related to any Hazardous Materials Law), Tenant
shall promptly deliver to Landlord notices of hazardous waste manifests
reflecting the legal and proper disposal of all such Hazardous Materials removed
from the Demised Premises. All such manifests shall list the Tenant or its agent
as a responsible party and in no way shall attribute responsibility for any such
Hazardous Materials to Landlord.
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(d) Tenant shall indemnify, defend (with counsel reasonably
acceptable to Landlord), protect and hold Landlord and each of Landlord's
officers, directors, partners, employees, agents, attorneys, successors and
assigns free and harmless from and against any and all claims, liabilities,
damages, costs, penalties, forfeitures, losses or expenses (including attorneys'
fees) for death or injury to any person or damage to any property whatsoever
arising or resulting in whole or in part, directly or indirectly, from the
presence or discharge of Hazardous Materials, in, on, under, upon or from the
Demised Premises placed or installed thereon by Tenant, its agents, employees or
contractors in violation or alleged to be in violation of Hazardous Materials
Laws or from the transportation or disposal of such Hazardous Materials in
violation or alleged to be in violation of Hazardous Materials Laws to or from
the Demised Premises to the extent caused by Tenant whether knowingly or
unknowingly. Tenant's obligations hereunder shall include, without limitation,
and whether foreseeable or unforeseeable, all costs of any required or necessary
repairs, clean-up or detoxification or decontamination of the Demised Premises
and the presence and implementation of any closure, remedial action or other
required plans in connection therewith, and shall survive the expiration of or
early termination of the term of this Lease Agreement. For purposes of the
indemnity provided herein, any acts or omissions of Tenant, or its employees,
agents, customers, sub-lessees, assignees, contractors or subcontractors of
Tenant (whether or not they are negligent, intentional, willful or unlawful)
shall be strictly attributable to Tenant.
(e) Landlord may, at its expense, commission an environmental
audit of the Demised Premises at any time after prior written notice to Tenant.
5.2. Landlord's Covenants Regarding Hazardous Substances.
(a) Except as otherwise provided in the reports provided to
Tenant by Landlord, Landlord warrants and represents (i) that, to the best of
its present knowledge, the Demised Premises will be at the Commencement Date
free from any Hazardous Materials and shall comply with all applicable Hazardous
Materials Laws; (ii) as of the Commencement Date, the contamination disclosed in
the Environmental Site Assessment dated December 22, 1997, prepared by Allied
Engineering will be diligently addressed or remediated in accordance with a plan
prepared by environmental consultants and in accordance with Hazardous Materials
Laws and the performance of such plan shall be enforced by Landlord in
accordance with the Purchase Agreement, as defined in Section 28; (iii) that the
Demised Premises will be at the Commencement Date free of any asbestos or
asbestos containing substance; (iv) that Landlord has never received any notice
of any violation of or non-compliance with any Hazardous Material Laws as
regards the Demised Premises; and (v) that, except for use or discharge in
strict accordance and conformity with all applicable laws, Landlord has never
caused or permitted any Hazardous Material, asbestos or asbestos-containing
substance to be placed, held, located or disposed of on, under or at the
Premises or any part thereof. Landlord shall indemnify and hold Tenant harmless
from and against any and all loss, damage, cost or expense (including but not
limited to clean-up costs and losses relating to interruption or cessation of
operations) arising out of or relating to any breach of any of the foregoing
warranties and representations.
(b) In connection with Landlord's ownership, development,
operation, management and maintenance and replacement of the Demised Premises
(such status of Landlord as owner, developer, operator and manager of the
Demised Premises, and such activity by or at the bequest of Landlord and/or its
affiliate being hereinafter collectively called the "Landlord's Activities"),
Landlord shall at all times and in all respects comply with all Hazardous
Materials Laws.
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(c) Landlord shall at its own expense procure, maintain in
effect and comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals in connection with Landlord's Activities,
including, without limitation, discharge of (appropriately treated) materials or
waste into or through any sanitary sewer system serving the Demised Premises.
Except as discharged into the sanitary sewer in strict accordance and conformity
with all applicable Hazardous Materials Laws, Landlord shall cause any and all
Hazardous Materials to be removed from the Demised Premises and transported
solely by duly licensed haulers to duly licensed facilities for final disposal
of such Hazardous Materials. Landlord shall in all respects, handle, treat, deal
with and manage any and all Hazardous Materials in, on, under or about the
Demised Premises in complete conformity with all applicable Hazardous Materials
Laws and prudent industry practices regarding the management of such Hazardous
Materials. All reporting obligations imposed by Hazardous Materials Laws with
respect to the Landlord's Activities are solely the responsibility of Landlord.
Landlord shall not take any remedial action in response to the presence of any
Hazardous Materials in, on, about or under the Demised Premises, nor enter into
any settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected with the Demised
Premises without first notifying Tenant of Landlord's intention to do so and
affording Tenant ample opportunity to appear, intervene or otherwise
appropriately assert and protect Tenant's interest with respect thereto.
(d) Promptly after Landlord acquires actual knowledge of same,
Landlord shall notify Tenant in writing of (i) any enforcement, clean-up,
removal or other governmental or regulatory action instituted, completed or
threatened pursuant to any Hazardous Materials Laws with respect to the Demised
Premises; (ii) any claim made or threatened by any person against Tenant, or the
Demised Premises, relating to damage, contribution, cost recovery, compensation,
loss or injury resulting from or claimed to result from any Hazardous Materials;
and (iii) any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials in, on or about the Demised Premises or
with respect to any Hazardous Materials removed from the Demised Premises,
including, any complaints, notices, warnings, reports or asserted violations in
connection therewith. Landlord shall also provide to Tenant, as promptly as
possible, and in any event within five (5) business days after Landlord first
receives or sends the same, with copies of all claims, reports, complaints,
notices, warnings or asserted violations relating in any way to the Demised
Premises or Landlord's Activities.
(e) Landlord shall indemnify, defend (with counsel reasonably
acceptable to Tenant), protect and hold Tenant and each of Tenant's officers,
directors, partners, employees, agents, (including, without limitation, Tenant's
representatives on the board of directors of Bayside Concourse Association,
Inc.), attorneys, successors and assigns free and harmless from and against any
and all claims, liabilities, damages, costs, penalties, forfeitures, losses or
expenses (including attorneys' fees) for death or injury to any person or damage
to any property whatsoever arising or resulting in whole or in part, directly or
indirectly: (i) from the presence or discharge of Hazardous Materials, in, on,
under, upon or from the Demised Premises or the Landlord's Work and Tenant
Improvements located thereon or upon or from the Common Area Parcel, as defined
in the Declaration, in violation or alleged to be in violation of Hazardous
Materials Laws (except to the extent caused by Tenant); or (ii) from the
transportation or disposal of Hazardous Materials to or from the Demised
Premises in violation or alleged to be in violation of Hazardous Materials Laws
to the extent resulting from or related to Landlord's Activities; or (iii) the
violation or alleged violation of Hazardous Materials Laws caused by Landlord,
its agents, employees or contractors, whether knowingly or unknowingly.
Landlord's obligations hereunder shall include, without limitation, and whether
foreseeable or unforeseeable, all costs of any required or necessary repairs,
clean-up or detoxification or decontamination of the Demised Premises or the
Landlord's Work and Tenant
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Improvements, and the presence and implementation of any closure, remedial
action or other required plans in connection therewith, and shall survive the
expiration of or early termination of the term of this Lease Agreement. For
purposes of the indemnity provided herein, any acts or omissions of Landlord, or
its employees, agents, customers, sub-lessees, assignees, contractors or
sub-contractors of Landlord (whether or not they are negligent, intentional,
willful or unlawful) shall be strictly attributable to Landlord.
6. OPERATING EXPENSES.
6.1. Payment of Operating Expenses. Tenant shall pay to Landlord as
Additional Rent actual Operating Expenses for each calendar year in accordance
with Section 3.1 above.
6.2. Definition of Operating Expenses. Subject to the exclusions
set forth in Section 6.3 below, for the purposes of this Lease Agreement, the
term "Operating Expenses" shall mean the total cost or expense, incurred by
Landlord operating, repairing or maintaining the Demised Premises and sales, use
and other similar taxes which are paid by Tenant to Landlord together with the
monthly installments of Base Rent. Operating Expenses shall include, without
limitation, the following:
(a) Wages, salaries, payroll costs, and benefits paid to or on
behalf of Landlord's employees at or below the level of building manager
directly engaged in the operation, maintenance, repair and security (pro rated
to reflect only that portion of the employee(s) time serving the Demised
Premises and excluding any time, expenses, etc. to the extent relating to any
other building or property owned, operated or managed by Landlord or any
affiliate of Landlord).
(b) A reasonable and customary management fee, provided the
management fee does not exceed three (3) percent of the Rent. For purposes of
calculating this three percent (3%) cap, any amounts paid directly by Tenant
under Section 6.3(c) below shall be excluded from Rent.
(c) Cost of insurance required to be carried by Landlord under
Article 8.
(d) Elevator maintenance;
(e) Exterior window cleaning;
(f) Utilities not directly billed to Tenant (if any);
(g) Payments to independent contractors under service
contracts for security, pest control, cleaning, operating or maintaining the
Demised Premises, including operating, maintenance and repair of the heating,
air conditioning and electrical systems servicing the Building;
(h) Repairs and maintenance (except as expressly excluded from
Operating Expenses or as such costs are expressly imposed on Landlord);
(i) Costs of supplies, materials and equipment used in
performing any of the activities involved in owning, operating, maintaining,
managing or repairing the Parcels;
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(j) Trash removal;
(k) Snow or ice removal;
(l) Maintenance of the Land (including water retention areas),
including costs of landscaping, gardening, planting, Garage and parking lot
sweeping and repairs;
(m) Assessments and charges imposed on the Land by the Bayside
Concourse Association, Inc.;
(n) Costs and expenses of Tenant as set forth under Section
6.3(b) and Section 11.1; or
(o) Signage maintenance.
In calculating Operating Expenses, Operating Expenses shall be reduced by all
cash, trade or quantity discounts to the extent actually received by Landlord in
the purchase of any goods, utilities or services in connection with the Demised
premises. All Operating Expenses shall be accounted for with the utilization of
generally accepted accounting principles consistently applied.
6.3. Certain Exclusions from Operating Expenses.
(a) Notwithstanding the terms and provisions of Section 6.2 or
of any other terms or provision of this Lease Agreement, the following shall be
excluded from Operating Expenses: (1) leasing commissions, (2) subject to
Tenant's obligation to make "Tenant's Compliance Contribution" pursuant to
Section 11.1, costs incurred by Landlord for alterations or additions that are
considered capital improvements and/or replacements (For purposes of this
section 6.3, capital improvements and/or replacements are items deemed to have a
useful life in excess of two (2) years); (3) any depreciation or amortization on
the Demised Premises; (4) subject to Tenant's obligation to make "Tenant's
Compliance Contribution" pursuant to Section 11.1, costs of a capital nature
including, without limitation, capital improvements, capital repairs, capital
equipment and capital tools; (5) costs, fines or penalties incurred due to a
violation by Landlord of any of the terms and conditions of this Lease
Agreement, or of any Laws; (6) interest on debt, amortization payments, or
increases in principal or interest on debt, or any mortgages and rental under
any ground or underlying lease, or any other debt for borrowed money; (7)
repairs and any other work occasioned by fire, windstorm or other casualty
required under this Lease Agreement to be covered by insurance (exclusive of a
reasonable deductible which shall be an Operating Expense), or repairs required
as a result of eminent domain exercise; (8) fines, penalties or late charges
incurred because of Landlord's failure to promptly pay an obligation; (9) any
cost or expense which is already passed onto Tenant (or reimbursed to Landlord)
pursuant to some other term or provision of this Lease Agreement, or any expense
billed to and paid directly by Tenant on its own account or on behalf of
Landlord; (10) the cost of constructing the Landlord's Work and preparing the
Demised Premises for occupancy by Tenant; (11) the cost of repairing latent
defects in the design or construction of the Demised Premises; and (12)
Landlord's general overhead and other administration costs except for the
management fee as permitted in Section 6.2(b) above.
(b) Capital Improvements. Tenant shall not be obligated to pay
for any costs of a capital nature, subject to the following two qualifications:
(1) Tenant shall be obligated to pay "Tenant's
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Compliance Contribution" pursuant to Section 11.1; and (2) if during the Initial
Term (or any Renewal Term) Landlord and Tenant mutually agree that a capital
improvement would result in a reduction in Operating Expenses, Landlord and
Tenant may (at the time that they mutually approve such capital improvement)
agree upon a portion of the amortization of such capital improvement to be
included in the definition of "Operating Expenses", provided, however, it is the
intent of the parties that in no event will the portion of the amortization
included in Operating Expenses exceed the cost savings associated with the
capital improvement and if Landlord incurs a cost of a capital nature without
obtaining Tenant's prior written consent and agreement, Tenant shall not be
responsible for paying any portion of such capital cost.
(c) Tenant's Direct Obligations. Except for Landlord's
obligations under Section 10.1(a) and Operating Expenses as set forth in Section
6.2, Tenant shall directly maintain, pay and perform any and all other
obligations and charges in connection with business licenses or similar permits
pertaining to Tenant's use and occupancy of the Demised Premises, (but not
Certificate of Occupancy or construction related permits, licenses or other
authorizations, all of which shall be paid by Landlord). In the event Tenant
fails to perform, pay or discharge any such obligations or charges when due
without penalty or interest which would result in a lien against the Demised
Premises if not timely performed or paid, Landlord may, but shall not be
obligated to pay the same. In the event Landlord makes any such payment, Tenant
shall immediately reimburse Landlord therefore together with interest at the
Maximum Rate of Interest on such amount within 15 days of demand by Landlord.
Further, Tenant agrees to indemnify, defend and hold Landlord harmless from and
against Tenant's failure to comply with this Section 6.3(c). Tenant, upon thirty
(30) days' prior notice to Landlord, may elect to purchase directly any
services, materials or utilities included in Operating Expenses under Section
6.2 above, provided that such election does not adversely affect Landlord's
ability to perform its obligations under this Lease Agreement. In that event,
Landlord shall fully cooperate in shifting such obligation to Tenant. The
calculation of Operating Expenses and determination of Estimated Operating
Expenses shall be appropriately adjusted to account for Tenant's assumption of
such Costs. Tenant shall initially contract and pay for the following utilities
and services:
(i) Cost of all utilities as set forth in
Article 9 including but not limited to electricity, water and
sewer.
(ii) All impositions as set forth in Article 7.
(iii) Cost to provide janitorial service for the
Demised Premises.
(iv) Cost to furnish and provide the Demised
Premises with electricity.
(v) Cost to provide adequate security services
for the Demised Premises, the Building and common areas in and
around the Building, including fire and burglar alarm devices
and guard protection, to perform annual inspection and/ or
testing of the smoke detectors and fire extinguishers in the
Demised Premises and elsewhere in the Building and to provide
for the periodic maintain and annual inspection of the
Building fire alarm system.
Tenant hereby acknowledges that Landlord shall have no responsibility
or liability arising from matters relating in any way, directly or indirectly,
to Tenant's Direct Obligations under this Section 6.3(c)
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and Tenant hereby agrees to indemnify and hold Landlord harmless from and
against all such claims, losses and charges.
7. PAYMENT OF TAXES, ASSESSMENTS, ETC.
7.1. Payment of Impositions. Tenant covenants and agrees to pay during
the Term directly to the applicable authority before any fine, penalty, interest
or cost may be added thereto for the nonpayment thereof, all real estate taxes,
special assessments, water rates and charges, sewer rates and charges, including
charges for public utilities, street lighting, excise levies, licenses, permits,
inspection fees, other governmental charges, and all other charges or burdens of
whatsoever kind and nature (including costs, fees, and expenses of complying
with any restrictive covenants or similar agreements to which the Demised
Premises are subject) incurred in the use, occupancy, ownership, operation,
leasing or possession of the Demised Premises, without particularizing by any
known name or by whatever name hereafter called, and whether any of the
foregoing be general or special, ordinary or extraordinary, foreseen or
unforeseen (all of which are sometimes herein referred to as "Impositions"),
which at any time during the Term may have been or may be assessed, levied,
confirmed, imposed upon, or become a lien on the Demised Premises, or any
portion thereof, or any appurtenance thereto, rents or income therefrom, and
such easements or rights as may now or hereafter be appurtenant or appertain to
the use of the Demised Premises. Within ten (10) days after receipt, Landlord
shall deliver to Tenant any Imposition bill or statement sent by the pertinent
governmental agency or utility to Landlord. Tenant shall be able to take
advantage of all applicable discounts for early payment of Impositions. Neither
the Impositions nor any other charge passed onto Tenant shall ever include any
(i) profit, income, revenue or similar tax upon the income of Landlord or any
franchise, excise, corporate, estate, partnership, inheritance, succession,
capital levy, transfer, documentary or similar tax of Landlord, or (ii) any
charge, fee or amount due and payable in connection with the design, development
or construction of the Demised Premises, including without limitation impact
fees; utility connection, inspection or impact fees; and building fees. Tenant
shall pay all special (or similar) assessments for public improvements or
benefits which, during the Term shall be laid, assessed, levied or imposed upon
or become payable or become a lien upon the Demised Premises, or any portion
thereof, provided, however, that if by law any special assessment is payable
(without default) or, at the option of the owner, may be paid (without default)
in installments (whether or not interest shall accrue on the unpaid balance of
such special assessment), Tenant may pay the same, together with any interest
accrued on the unpaid balance of such special assessment, in installments as the
same respectively become payable and before any fine, penalty, interest or cost
may be added thereto for the nonpayment of any such installment and the interest
thereon. Tenant shall pay all special assessments or installments thereof
(including interest accrued thereon), whether heretofore or hereafter laid,
assessed, levied or imposed upon the Demised Premises, or any portion thereof,
which are due and payable during the Term. Landlord shall pay all installments
of special assessments (including interest accrued on the unpaid balance) which
are payable prior to the commencement and after the expiration or sooner
termination of the Term. Tenant shall pay all real estate taxes, whether
heretofore or hereafter levied or assessed upon the Demised Premises, or any
portion thereof, which pertain to the Term. Landlord shall pay all real estate
taxes which pertain to the period prior to the commencement of the Term. Any
provision herein to the contrary notwithstanding, Landlord shall pay that
portion of the real estate taxes and installments of special assessments
attributable to the Demised Premises prior to and after the Term which the
number of days in said years not within the Term bears to 365, and Tenant shall
pay the balance of said real estate taxes and installments of special
assessments during said years.
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7.2. Tenant's Right to Contest Impositions. Tenant shall have the right
at its own expense to contest the amount or validity, in whole or in part, of
any Imposition by appropriate proceedings diligently conducted in good faith,
but only after payment of such Imposition, unless such payment, or a payment
thereof under protest, would operate as a bar to such contest or interfere
materially with the prosecution thereof, in which event, notwithstanding the
provisions of Section 7.1 hereof, Tenant may postpone or defer payment of such
Imposition if (i) neither the Demised Premises nor any portion thereof would, by
reason of such postponement or deferment, be in danger of being forfeited or
lost, and (ii) Tenant shall have deposited with Landlord cash or a certificate
of deposit or irrevocable letter of credit payable to Landlord issued by a
national bank or federal savings and loan association or other security
reasonably acceptable to Landlord in the amount of the Imposition so contested
and unpaid, together with all interest and penalties which may accrue in
Landlord's reasonable judgment in connection therewith, and all charges that may
or might be assessed against or become a charge on the Demised Premises, or any
portion thereof, during the pendency of such proceedings. If, during the
continuance of such proceedings, Landlord shall, from time to time, reasonably
deem the amount deposited, as aforesaid, insufficient, Tenant shall, upon demand
of Landlord, make additional deposits of such additional sums of money or such
additional certificates of deposit or irrevocable letters of credit as Landlord
may reasonably request. Upon failure of Tenant to make such additional deposits,
the amount theretofore deposited may be applied by Landlord to the payment,
removal and discharge of such Imposition, and the interest, fines and penalties
in connection therewith, and any costs, fees (including attorney's fees) and
other liability (including costs incurred by Landlord) accruing in any such
proceedings. Upon the termination or final determination of any such
proceedings, Tenant shall pay the amount of such Imposition or part thereof, if
any, as finally determined in such proceedings, the payment of which may have
been deferred during the prosecution of such proceedings, together with any
costs, fees, including reasonable attorney's fees, interest, penalties, fines
and other liability in connection therewith, and upon such payment Landlord
shall return all amounts, certificates or other security deposited with it with
respect to the contest of such Imposition, as aforesaid, or, at the written
direction of Tenant, Landlord shall make such payment out of the funds on
deposit with Landlord and the balance, if any, shall be returned to Tenant.
Tenant shall be entitled to the refund of any Imposition, penalty, fine and
interest thereon received by Landlord which have been paid by Tenant or which
have been paid by Landlord but for which Landlord has been previously reimbursed
in full by Tenant. Landlord shall not be required to join in any proceedings
referred to in this Section 7.2 unless the provisions of any law, rule or
regulation at the time in effect shall require that such proceedings be brought
by or in the name of Landlord, in which event Landlord shall join in such
proceedings or permit the same to be brought in Landlord's name upon compliance
with such conditions as Landlord may reasonably require. Landlord shall not
ultimately be subject to any liability for the payment of any fees, including
attorney's fees, costs and expenses in connection with such proceedings. Tenant
agrees to pay all such fees (including reasonable attorney's fees), costs and
expenses or, within ten (10) days of Landlord's demand, to make reimbursement to
Landlord for such payment. During the time when any such certificate of deposit
or other security is on deposit with Landlord, and prior to the time when the
same is returned to Tenant or applied against the payment, removal or discharge
of Impositions, as above provided, Tenant shall be entitled to receive all
interest paid thereon. Cash deposits shall bear interest.
7.3. Levies and Other Taxes. If, at any time during the term of this
Lease Agreement, any method of taxation shall be such that there shall be
levied, assessed or imposed on Landlord, or on the Base Rent or Additional Rent,
or on the Demised Premises, or any portion thereof, a capital levy, gross
receipts tax or other tax on the rents received therefrom, or a franchise tax,
or an assessment, levy or charge measured by or based in whole or in part upon
such rents, Tenant covenants to pay and discharge
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the same, it being the intention of the parties hereto that the rent to be paid
hereunder shall be paid to Landlord absolutely net without deduction or charge
of any nature whatsoever foreseeable or unforeseeable, ordinary or
extraordinary, or of any nature, kind or description, except as in this Lease
Agreement otherwise expressly provided. Nothing in this Lease Agreement shall
require Tenant to pay any profit, income, revenue or similar tax upon the income
of Landlord or any franchise, excise, corporate, estate, partnership,
inheritance, succession, capital, levy, transfer, documentary or similar tax of
Landlord.
7.4. Evidence of Payment. Tenant covenants to furnish Landlord, within
thirty (30) days after the date upon which any ad valorem tax or special
assessment (or at Landlord's request, any other Imposition or tax, assessment,
levy or charge) is payable by Tenant without imposition of any fine, penalty,
interest or cost, official receipts of the appropriate taxing authority, or
other appropriate proof satisfactory to Landlord, evidencing the payment of the
same. The certificate, advice or bill of the appropriate official designated by
law to make or issue the same or to receive payment of any Imposition or other
tax, assessment, levy or charge may be relied upon by Landlord as sufficient
evidence that such Imposition or other tax, assessment, levy or charge is due
and unpaid at the time of the making or issuance of such certificate, advice or
bill.
7.5. Landlord's Right to Contest Impositions. In addition to the right
of Tenant under Section 7.2 to contest the amount or validity of Impositions,
Landlord shall also have the right, but not the obligation, to contest the
amount or validity, in whole or in part, of any Impositions not contested by
Tenant, by appropriate proceedings conducted in the name of Landlord or in the
name of Landlord and Tenant. If Landlord elects to contest the amount or
validity, in whole or in part, of any Impositions, such contests by Landlord
shall be at Landlord's expense, provided, however that if the amounts payable by
Tenant for Impositions are reduced (or if a proposed increase in such amounts is
avoided or reduced) by reason of Landlord's contest of Impositions, Tenant shall
reimburse Landlord for Landlord's actual and reasonable costs incurred by
Landlord in contesting Impositions, but such reimbursements shall not be in
excess of the amount saved by Tenant by reason of Landlord's actions in
contesting such Impositions.
7.6. Installment Payments. To the extent permitted by law, Tenant may
pay any real estate tax and special assessments in annual installments. If
Tenant elects to pay such tax or assessment on an installment basis, then Tenant
shall pay only those installments which become due and payable during the Lease
Term. Any such installment due and payable in the year in which the Lease
Agreement commences or terminates shall be prorated.
8. INSURANCE.
8.1. Landlord's Casualty Insurance Obligations. Landlord agrees to
obtain and continuously maintain in full force and effect during the Term,
commencing with the date that Rent (full or partial) commences, policies of
insurance with a reputable insurance company, with an AM Best rating of "A" or
better, covering the Landlord's Work and Tenant Improvements constructed,
installed or located on the Demised Premises against: (i) loss or damage by
fire; (ii) loss or damage from such other risks or hazards now or hereafter
embraced by an "Extended Coverage Endorsement," including, but not limited to,
windstorm, hail, explosion, vandalism, riot and civil commotion, damage from
vehicles, smoke damage and water damage; (iii) loss for flood if the Demised
Premises are in a designated flood or flood insurance area; (iv) loss from
explosion, collapse and underground hazards; (v) loss of rental insurance for at
least a twelve (12) month period; and (vi) loss or damage from such other risks
or hazards of a similar or dissimilar nature which are now or may hereafter be
customarily insured against with respect to
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improvements similar in construction, design, general location, use, occupancy
and location to the Landlord's Work and Tenant Improvements. At all times, such
insurance coverage shall be in an amount equal to one hundred percent (100%) of
the then "full replacement cost" of the Landlord's Work and Tenant Improvements.
"Full Replacement Cost" shall be interpreted to mean the cost of replacing the
Landlord's Work and Tenant Improvements without deduction for depreciation or
wear and tear, and it shall include a reasonable sum for architectural,
engineering, legal, administrative and supervisory fees connected with the
restoration or replacement of the Landlord's Work and Tenant Improvements in the
event of damage thereto or destruction thereof. If a sprinkler system shall be
located in the Landlord's Work and Tenant Improvements, sprinkler leakage
insurance shall be procured and continuously maintained by Landlord. For the
period prior to the date when full or partial Rent commences hereunder Landlord,
at its sole cost and expense, shall also maintain in full force and effect, on a
completed value basis, insurance coverage on the Landlord's Work and Tenant
Improvements on Builder's Risk or other comparable coverage. Landlord and Tenant
shall require any contractor, subcontractor, sub-subcontractor, supplier, or
laborer that works on the Demised Premises for Landlord or Tenant to provide a
satisfactory certificate of insurance to the other prior to commencement of any
such work.
8.2. Tenant's Liability and Other Insurance Coverage. During the
Term, Tenant, at its sole cost and expense, shall obtain and continuously
maintain in full force and effect the following insurance coverage:
(a) Commercial general liability insurance (which is primary
and non-contributory to any insurance available to Landlord) against any loss,
liability or damage on, about or relating to the Demised Premises, or any
portion thereof, with limits of not less than Five Million Dollars
($5,000,000.00) combined single limit coverage, per occurrence and aggregate, on
an occurrence basis. Any such insurance obtained and maintained by Tenant shall
name Landlord as an additional insured therein and shall be obtained and
maintained from and with a reputable insurance company, with an AM Best rating
of "A" or better, authorized to issue such insurance in the State of Florida.
Such insurance shall specifically insure (by contractual liability endorsement)
Tenant's obligations under Section 21.2 of this Lease Agreement.
(b) Such other insurance and in such amounts as may from time
to time be reasonably required by Landlord, against other insurable hazards
which at the time are commonly insured against in the case of premises and/or
buildings or improvements similar in construction, design, general location,
use, occupancy and location to those on or appurtenant to the Demised Premises
and at commercially reasonable rates.
The insurance set forth in this Section 8.2 shall be maintained by
Tenant at not less than the limits set forth herein until reasonably required to
be changed from time to time by Landlord, in writing, whereupon Tenant covenants
to obtain and maintain thereafter such protection in the amount or amounts so
required by Landlord.
8.3. Landlord's Liability Insurance Coverage. During the Term, Landlord
shall obtain and continuously maintain in full force and effect commercial
general liability insurance alone, or on conjunction with a commercial umbrella
against any loss, liability or damage on, about or relating to the Demised
Premises, or any portion thereof, with limits of not less than Five Million
Dollars ($5,000,000.00) combined single limit coverage, per occurrence and
aggregate, on an occurrence basis and containing standard form contractual
liability coverage. Any such insurance obtained and maintained by Landlord shall
name Tenant as an additional insured therein and shall be obtained and
maintained from and with a reputable and financially sound insurance company
authorized to issue such insurance in the State of Florida.
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8.4. Extended Coverage Insurance Provisions. All policies of insurance
required by Section 8.1 shall provide that the proceeds thereof shall be payable
to Landlord and if Landlord so requests shall also be payable to any contract
purchaser of the Demised Premises and the holder of any mortgages now or
hereafter becoming a lien on the fee of the Demised Premises, or any portion
thereof, as the interest of such purchaser or holder appears pursuant to a
standard named insured or mortgagee clause. Tenant shall not, on Tenant's own
initiative or pursuant to request or requirement of any third party, take out
separate insurance concurrent in form or contributing in the event of loss with
that required in Section 8.1 hereof, unless Landlord is named therein as
additional insured and loss payee as in said Section 8.1 provided. Tenant shall
immediately notify Landlord whenever any such separate insurance is taken out
and shall deliver to Landlord original certificates evidencing the same.
8.5. General Insurance Requirements. Each policy required under
Sections 8.1, 8.2 and 8.3 shall have attached thereto an endorsement that such
policy shall not be canceled or materially changed without at least thirty (30)
days prior written notice to the party named therein as an additional insured.
All policies of insurance shall be written on companies reasonably satisfactory
to the party named as an additional insured therein and licensed in the State of
Florida. Certificates evidencing insurance shall be in a form reasonably
acceptable to the recipient party, shall be delivered to such party upon
commencement of the Term and prior to expiration of such policy, new
certificates evidencing such insurance, shall be delivered to such party not
less than twenty (20) days prior to the expiration of the then current policy
term.
8.6. Waiver of Subrogation. Except for the insurance coverages required
under Section 8.2(a) and Section 8.3, Landlord and Tenant shall include in the
policy or policies of insurance required by this Article 8 a waiver by the
insurer of all rights of subrogation against Landlord or Tenant in connection
with any loss or damage thereby insured against. Neither party, nor its agents,
employees or guests, shall be liable to the other for loss or damage caused by
the risk typically covered by such insurance.
8.7. Tenant's Personal Property Coverage. Tenant, at its option, shall
maintain insurance coverage (including loss of use and business interruption
coverage) upon Tenant's business and upon all personal property of Tenant or the
personal property of others kept, stored or maintained on the Demised Premises
against loss or damage by fire, windstorm or other casualties or causes for such
amount as Tenant may desire.
8.8. Unearned Premiums. Upon expiration or sooner termination of the
Term, the unearned premiums upon any insurance policies required by this Article
8 shall, subject to the provisions of Article 14 hereof, be payable to Tenant.
8.9. Blanket Insurance Coverage. Nothing in this Article shall prevent
Tenant or Landlord from taking out insurance of the kind and in the amount
provided for under the preceding Sections of this Article under a blanket
insurance policy or policies (evidence thereof reasonably satisfactory to the
other party shall be delivered to the other party by the insuring party) which
may cover other properties owned or operated by the insuring party as well as
the Demised Premises; provided, however, that any such policy of blanket
insurance of the kind provided for shall (i) specify therein the amounts thereof
exclusively allocated to the Demised Premises or the insuring party shall
furnish the other party and the holder of any mortgage with a written statement
from the insurers under such policies specifying the amounts of the total
insurance exclusively allocated to the Demised Premises, and (ii) not contain
any clause which would result in the insured thereunder being required to carry
any insurance with respect to the property covered thereby in an amount not less
than any specific percentage of the Full Replacement
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Cost of such property in order to prevent the insured therein named from
becoming a co-insurer of any loss with the insurer under such policy; and
provided further, however, that such policies of blanket insurance shall, as
respects the Demised Premises, contain the various provisions required of such
an insurance policy by the foregoing provisions of this Article.
9. UTILITIES.
During the Term, Tenant will pay directly to the applicable utility
company, when due without the imposition of any fine, penalty, interest of
costs, all charges of every nature, kind or description for utilities furnished
solely to the Demised Premises or chargeable solely against the Demised
Premises, including all charges for water, sewage, heat, gas, light, garbage,
electricity, telephone, steam, power, or other public or private utility
services. Prior to the Commencement Date, Landlord shall pay for all utilities
or services at the Demised Premises used by it or its agents, employees or
contractors (excluding therefrom, however, any utilities consumed in connection
with construction of the Demised Premises). Except as otherwise provided under
Section 6.3 of the Lease, Landlord shall furnish the services (and use diligent
efforts to operate the systems as designed) necessary to operate, repair and
maintain the Demised Premises as a first-class office building in the Pinellas
County, Florida market, the cost of which shall be paid as Operating Expenses
under the Lease. Such services shall be provided twenty-four (24) hours per day,
seven (7) days per week, fifty-two (52) weeks per year to the Demised Premises,
subject to unanticipated interruptions. If during the Term there is an
interruption in the provision of facilities, utilities or services essential to
Tenant's business operations, Landlord shall promptly (but in no event later
than 24 hours after telephonic notice, which shall be simultaneously confirmed
in writing) commence action to restore same and thereafter diligently continue
such action until same are restored.
10. REPAIRS.
10.1. (a) Landlord's Repairs. Landlord, at its sole cost and expense
(subject only to Landlord's right to receive Tenant's Compliance Contribution
pursuant to Section 11.1(b) as a component of Operating Expenses pursuant to
Section 6.1), throughout the Term, shall maintain, replace and repair in
first-class condition (normal wear and tear excepted so long as it remains in
first-class condition) the roof and the load bearing elements of the Building
and Garage and shall make and perform all routine maintenance thereof and all
necessary repairs thereto, ordinary and extraordinary, foreseen and unforeseen,
of every nature, kind and description. Landlord shall also maintain, repair and
replace the paved parking areas, provided however, ordinary and typical
maintenance, including patching, shall be Operating Expenses. When used in this
Article, "repairs" shall include all necessary replacements, renewals,
alterations, additions and betterments. All repairs made by Landlord shall be at
least equal in quality to the original work and shall be made by Landlord in
accordance with all laws, ordinances and regulations whether heretofore or
hereafter enacted. The necessity for or adequacy of maintenance and repairs
shall be measured by the standards which are appropriate for improvements of
similar construction and class, provided that Landlord shall in any event make
all repairs necessary to avoid any structural damage or other damage or injury
to the Building and Garage.
(b) Tenants Repairs. Except to the extent otherwise set forth
in Article 6 and Section 10.1(a) above, Tenant, at its sole cost and expense,
throughout the Term, shall take good care of the non-structural, interior
surfaces of Demised Premises and shall keep the same in first-class condition
(normal wear and tear excepted so long as it remains in first-class condition),
and shall make and perform all routine maintenance thereof and all necessary
repairs thereto, interior and exterior, ordinary and extraordinary, foreseen and
unforeseen, of every nature, kind and description. When used in this Article,
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"repairs" shall include all necessary replacements, renewals, alterations,
additions and betterments. All repairs made by Tenant shall be at least equal in
quality to the original work and shall be made by Tenant in accordance with ALL
laws, ordinances and regulations whether heretofore or hereafter enacted. The
necessity for or adequacy of maintenance and repairs shall be measured by the
standards which are appropriate for improvements of similar construction and
class, provided that Tenant shall in any event make all repairs necessary to
avoid any damage or injury to the Demised Premises.
10.2. Maintenance. Except to the extent otherwise set forth in Section
10.1(a) and (b) above, Landlord shall take good care of, repair and maintain in
first-class condition all portions of the Demised Premises, including without
limitation, utility conduits and connections, landscaped areas, and other
portions of the Demised Premises, and keep all portions of the Demised Premises
including areas appurtenant thereto, in a clean and orderly condition free of
dirt, rubbish, debris and unlawful obstructions, and the cost of such
maintenance and repair shall be included in Operating Expenses. Upon sixty (60)
days prior written notice from Tenant to Landlord, Landlord agrees to perform
any obligations of Tenant under Section 6.3(c) of this Lease Agreement on behalf
of Tenant, which can reasonably be performed by Landlord, provided that Tenant
is not in breach of any of its obligations under this Lease Agreement and
provided that all such costs and expense of such performance by Landlord shall
be included in Operating Expenses.
All work performed by Landlord and Tenant under this Article 10 shall
provide for containment of any toxic materials which may be encountered and
shall be in strict conformance with OSHA and EPA standards and local building
codes and regulations. Landlord shall not use toxic paint or other materials
which may emit fumes or odors harmful to Tenant's employees.
10.3. Prohibition Against Waste. Tenant shall not do or suffer any
waste or damage, disfigurement or injury to the Demised Premises, or any
Landlord's Work and Tenant Improvements hereafter erected thereon, or to the
fixtures or equipment therein or permit or suffer any overloading of the floors
or other use of the Landlord's Work and Tenant Improvements that would place an
undue stress on the same or any portion thereof beyond that for which the same
was designed.
11. COMPLIANCE WITH LAWS AND ORDINANCES.
11.1. Compliance with Laws and Ordinances. As used in this Lease
Agreement, the term "Laws" shall mean all present and future laws, ordinances,
orders, rules, regulations and requirements of all federal, state, municipal and
other governmental bodies having jurisdiction over the Demised Premises and the
appropriate departments, commissions, boards and officers thereof, and the
orders, rules and regulations of the Board of Fire Underwriters where the
Demised Premises are situated, or any other body now or hereafter constituted
exercising lawful or valid authority over the Demised Premises, or any portion
thereof or the sidewalks, curbs, roadways, alleys, entrances or railroad tract
facilities adjacent or appurtenant thereto, or exercising authority with respect
to the use or manner of use of the Demised Premises, or such adjacent or
appurtenant facilities, including, without limitation, the Americans with
Disabilities Act. Landlord shall be responsible for constructing the Landlord's
Work in accordance with all Laws, as such laws exist as of the date of the
issuance of its building permits and certificate of occupancy. At all times
during Tenant's occupancy of the Demised Premises (or any portion thereof),
Tenant shall cease and remove any violation of Laws resulting from Tenant's
specific use of the Demised Premises other than for Tenant's Intended Use.
Landlord and Tenant mutually acknowledge that amendments to existing Laws or
enactment of new Laws taking effect after the Commencement Date may
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require that substantial cost be incurred in making physical alterations or
improvement to the Landlord's Work (physical alterations or improvements to the
Landlord's Work that are required to be made during the initial term or any
renewal term to bring the Demised Premises into compliance with amendments to
existing Laws or enactments of new Laws are collectively referred to as "Future
Compliance Landlord's Work"). The term "Future Compliance Landlord's Work" shall
not include any improvements necessary due to Landlord's failure to comply with
all existing Laws as they related to construction of the Landlord's Work.
Because the cost of making the Future Compliance Landlord's Work is
unforeseeable as of the Effective Date of this Lease Agreement and may be
substantial, the parties hereby agree to the following with respect to making
Future Compliance Landlord's Work:
(a) Landlord shall have the responsibility, at Landlord's sole
expense, for constructing or making the Future Compliance Landlord's Work which
are attributable solely to changes in Laws and are required for Tenant to
continue to utilize Landlord's Work for the purposes permitted under this Lease,
subject only to Tenant's obligation to pay Landlord the "Tenant's Compliance
Contribution."
(b) Except to the extent otherwise elected by Tenant or
Landlord herein below, Tenant shall be required to reimburse Landlord for the
cost of constructing or making the Future Compliance Landlord's Work by paying
Landlord additional Operating Expenses in a monthly amount during the Lease Term
equal to the amortized cost of the Future Compliance Landlord's Work constructed
or made by Landlord, amortized over the useful life of such Future Compliance
Landlord's Work ("Tenant's Compliance Contribution"). As conditions precedent to
Landlord's right to receive the Tenant's Compliance Contribution, (i) Landlord
shall have delivered a written notice to Tenant stating that Landlord intends to
commence a Future Compliance Improvement, which notice shall also cite the
applicable Law pursuant to which the Future Compliance Improvement is being made
and provide an estimate of Tenant's Compliance Contribution, and (ii) Landlord
shall submit to Tenant invoices and other reasonable documentation evidencing
the amounts paid by Landlord in making or constructing the Future Compliance
Landlord's Work. Upon Tenant's receipt of a notice from Landlord of Future
Compliance Landlord's Work to be constructed by Landlord, Tenant may provide
Landlord with notice that Tenant will not pay Tenant's Compliance Contribution
and if Tenant does not agree to pay, Landlord shall, within thirty (30) days of
such notice from Tenant, elect to terminate the Lease or to pay Tenant's
Compliance Contribution. If Tenant agrees to pay Tenant's Compliance
Contribution, Landlord agrees to provide Tenant with reasonable documentation
supporting the cost to construct the Future Landlord's Work and Tenant's
Compliance Contribution prior to the initial payment of Tenant's Compliance
Contribution.
(c) Tenant shall have the responsibility, at Tenant's sole
expense, for constructing or making the Future Compliance Landlord's Work which
are solely attributable to changes in use by Tenant or alterations by Tenant.
11.2 Compliance with Permitted Encumbrances. Tenant shall not
violate the terms and provisions of the agreements, contracts, easements,
restrictions, reservations or covenants, if any, set forth in EXHIBIT "B"
attached hereto, or hereafter created by Tenant or consented to, in writing, by
Tenant or requested, in writing, by Tenant; provided, however, that, although
Tenant shall not violate the terms of such documents identified on Exhibit "B"
as aforesaid, the parties acknowledge and agree that, Tenant is not a party to
any such documents and, except for the Declaration, (as defined in Section 24),
nothing in this Lease Agreement is intended or shall be deemed or construed to
impose upon Tenant the duties, obligations or liabilities of Landlord or of any
other party under such documents (except for Tenant's
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covenant to Landlord not to violate such documents as provided in this Section
11.2 and Tenant's covenants to pay assessments and charges as provided in
Section 6.2(m).
11.3 Tenant's Right to Contest Laws and Ordinances. After prior written
notice to Landlord, Tenant, at its sole cost and expense and without cost or
expense to Landlord, shall have the right to contest the validity or application
of any law or ordinance referred to in this Article 11 in the name of Tenant or
Landlord, or both, by appropriate legal proceedings diligently conducted but
only if the terms of any such law or ordinance, compliance therewith pending the
prosecution of any such proceeding may legally be delayed without the occurrence
of any lien, charge or liability of any kind against the Demised Premises, or
any portion thereof, and without subjecting Landlord or Tenant to any liability,
civil or criminal, for failure so to comply therewith until the termination or
final determination of such proceeding; provided, however if any lien, charge or
civil liability would be incurred by reason of any such delay, Tenant
nevertheless, on the prior written consent of Landlord, may contest as aforesaid
and delay as aforesaid, provided that such delay would not subject Tenant or
Landlord to criminal liability and Tenant: (i) furnishes Landlord security,
reasonably satisfactory to Landlord, against any loss or injury by reason of any
such contest or delay; (ii) prosecutes the contest with due diligence and in
good faith; and (iii) agrees to indemnify, defend and hold harmless Landlord and
the Demised Premises from any charge, liability or expense whatsoever. The
security furnished to Landlord by Tenant shall be in the form of a cash deposit,
a Certificate of Deposit issued by a national bank or federal savings and loan
association payable to Landlord or irrevocable letter of credit payable to
Landlord or other form reasonably acceptable to Landlord. Said deposit shall be
held, administered and distributed in accordance with the provisions of Section
7.2 hereof relating to the contest of the amount or validity of any Imposition.
If necessary or proper to permit Tenant to contest the validity or
application of any such law or ordinance, Landlord shall, at Tenant's sole cost
and expense, including reasonable attorneys fees incurred by Landlord, execute
and deliver any appropriate papers or other documents; provided, however, that
Landlord shall not be required to execute any document or consent to any
proceeding which would result in the imposition of any cost, charge, expense or
penalty on Landlord or the Demised Premises.
12. MECHANIC'S LIENS AND OTHER LIENS.
12.1. Freedom from Liens. Tenant shall not suffer or permit any
mechanic's lien or other lien to be filed against the Demised Premises, or any
portion thereof, by reason of work, labor, skill, services, equipment or
materials supplied to the Demised Premises at the request of Tenant, or anyone
holding the Demised Premises, or any portion thereof, through or under Tenant.
If any such mechanic's lien or other lien caused by or attributed to Tenant
shall at any time be filed against the Demised Premises, or any portion thereof,
Tenant shall cause the same to be discharged of record or bonded within thirty
(30) days after the date of filing the same. If Tenant shall fail to discharge
or bond such mechanic's lien or liens or other lien within such period, then, in
addition to any other right or remedy of Landlord, after five (5) days prior
written notice to Tenant, Landlord may, but shall not be obligated to, discharge
the same by paying to the claimant the amount claimed to be due or by procuring
the discharge of such lien as to the Demised Premises by deposit into the court
having jurisdiction of such lien, the foreclosure thereof or other proceedings
with respect thereto, of a cash sum sufficient to secure the discharge of the
same, or by the deposit of a bond or other security with such court sufficient
in form, content and amount to procure the discharge of such lien, or in such
other manner as is now or may in the future be provided by present or future law
for the discharge of such lien as a lien against the Demised Premises. Any
amount paid by Landlord, or the value of any deposit so made by Landlord,
together with all costs, fees
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and expenses in connection therewith (including reasonable attorneys' fees of
Landlord), together with interest thereon at the Maximum Rate of Interest set
forth in Section 3.1 hereof, shall be repaid by Tenant to Landlord on demand by
Landlord and if unpaid may be treated as Additional Rent. Tenant shall indemnify
and defend Landlord against and save Landlord and the Demised Premises, and any
portion thereof, harmless from all losses, costs, damages, expenses,
liabilities, suits penalties, claims, demands and obligations, including,
without limitation, reasonable attorneys' fees resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
All materialmen, contractors, artisans, mechanics, laborers and any
other person now or hereafter furnishing any labor, services, materials,
supplies or equipment to Tenant with respect to the Demised Premises, or any
portion thereof, are hereby charged with notice that they must look exclusively
to Tenant to obtain payment for the same. Notice is hereby given that Landlord
shall not be liable for any labor, services, materials, supplies, skill,
machinery, fixtures or equipment finished or to be furnished to Tenant upon
credit, and that no mechanic's lien or other lien for any such labor, services,
materials, supplies, machinery, fixtures or equipment shall attach to or affect
the state or interest of Landlord in and to the Demised Premises, or any portion
thereof.
12.2. Landlord's Indemnification. The provisions of Section 12.1 above
shall not apply to any mechanic's lien or other lien for labor, services,
materials, supplies, machinery, fixtures or equipment furnished to the Demised
Premises in the performance of Landlord's obligation to construct the Landlord's
Work and Tenant Improvements required by the provisions of Article 2 hereof, and
Landlord does hereby agree to indemnify and defend Tenant against and save
Tenant and the Demised Premises, and any portion thereof, harmless from all
losses, costs, damages, expenses, liabilities and obligations, including,
without limitation, reasonable attorneys' fees resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
12.3. Removal of Liens. Except as otherwise provided for in this
Article, Tenant shall not create, permit or suffer, and shall promptly discharge
and satisfy of record, any other lien, encumbrance, charge, security interest,
or other right or interest which shall be or become a lien, encumbrance, charge
or security interest upon the Demised Premises, or any portion thereof, or the
income therefrom, or on the interest of Landlord or Tenant in the Demised
Premises, or any portion thereof, save and except for those liens, encumbrances,
charges, security interests, or other rights or interests consented to, in
writing by Landlord, or those mortgages, assignments of rents, assignments of
leases and other mortgage documentation placed thereon by Landlord in financing
or refinancing the Demised Premises.
13. INTENT OF PARTIES.
13.1. No Abatement. Except as may be otherwise set forth in this Lease
Agreement, all Rent and Additional Rent shall be paid by Tenant to Landlord
without abatement, deduction, diminution, deferment, suspension, reduction or
set off, nor shall the obligations of Tenant be affected by reason of any other
cause whether similar or dissimilar to the foregoing or by any laws or customs
to the contrary. It is the express intent of Landlord and Tenant that unless
otherwise set forth herein: (i) the obligations of Landlord and Tenant hereunder
shall be separate and independent covenants and agreements and that the Rent and
Additional Rent, and all other charges and sums payable by Tenant hereunder,
shall commence at the times provided herein and shall continue to be payable in
all events unless the obligations to pay the same shall be terminated pursuant
to an express provision in this Lease Agreement or under applicable Law; (ii)
all costs or expenses of any character or kind, general or special, ordinary
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or extraordinary, foreseen or unforeseen, and of every kind and nature
whatsoever that may be necessary or required in and about the Demised Premises,
or any portion thereof, and Tenant's possession or authorized use thereof during
the Term, shall be paid by Tenant except to the extent otherwise set forth in
this Lease Agreement; (iii) all Impositions, insurance premiums, utility expense
and all other costs, fees, interest, charges, expenses, reimbursements and
obligations of every kind and nature whatsoever relating to the Demised
Premises, or any portion thereof, which may arise or become due during the Term,
or any extension or renewal thereof, shall be paid or discharged by Tenant; and
(iv) Tenant hereby agrees to indemnify, defend and save Landlord harmless from
and against such costs, fees, charges, expenses, reimbursements and obligations,
any interest thereon.
13.2. Entry by Landlord. If Tenant shall at any time default in the
payment of Rent or any other payment, or in the performance of any other act on
its part to be made or performed, then Landlord, after prior written notice to
Tenant as provided in Section 14 and any applicable cure period (or without
notice or cure in case of emergency), and without waiving or releasing Tenant
from any obligation of Tenant contained in this Lease Agreement, may, but shall
be under no obligation to do so, make any payment or perform any act on Tenant's
part to be paid or performed as set forth in this Lease Agreement in such manner
and to such extent as Landlord may deem necessary or desirable, and Landlord may
enter upon the Demised Premises for any such purpose and take all such action
therein or thereon as may be necessary therefor. Nothing herein contained shall
be deemed as a waiver or release of Tenant from any obligation of Tenant in this
Lease Agreement contained.
13.3. Interest on Unpaid Amounts. If Landlord performs Tenant's
obligations as set forth in Section 13.2, all sums so paid by Landlord and all
necessary and incidental costs and expenses, including reasonable attorneys'
fees, in connection with the performance of any such act by Landlord, together
with interest thereon at the Maximum Rate of Interest provided for in Section
3.1 hereof from the date of making such expenditure by Landlord, shall be deemed
Additional Rent hereunder and, except as is otherwise expressly provided herein,
shall be payable to Landlord within ten (10) days of demand or, at the option of
Landlord, may be added to any monthly installment of Rent then due or thereafter
becoming due under this Lease Agreement, and Tenant covenants to pay any such
sum or sums, with interest as aforesaid, and Landlord shall have, in addition to
any other right or remedy of Landlord, the same rights and remedies in the event
of nonpayment thereof by Tenant as in the case of default by Tenant in the
payment of monthly Base Rent.
14. DEFAULTS.
14.1 Event of Default. Any one or more of the following events are
deemed an "Event of Default" in the singular and "Events of Default" in the
plural;
(a) If breach shall be made by Tenant, by operation of law or
otherwise, under the provisions of Article 17 hereof relating to assignment,
sublease, mortgage or other transfer of Tenant's interest in this Lease
Agreement or in the Demised Premises or in the income arising therefrom;
(b) If breach shall be made in the due and punctual payment of
any Base Rent or Additional Rent payable under this Lease Agreement or in the
payment of any obligation to be paid by Tenant hereunder, when and as the same
shall become due and payable without imposition of any fine, penalty, interest
or cost, and such breach shall continue for a period of ten (10) days after
written notice thereof given by Landlord to Tenant in accordance with Section
22.3;
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(c) If a breach shall be made by Tenant in keeping, observing
or performing any of the terms contained in this Lease Agreement, other than
those referred to in Subsections (a) and (b) of this Section 14.1, which does
not expose Landlord to criminal liability, and such breach shall continue for a
period of thirty (30) days after written notice thereof given by Landlord to
Tenant, or in the case of such a default or contingency which cannot with due
diligence and in good faith be cured within thirty (30) days, and Tenant fails
to proceed promptly and with due diligence and in good faith to cure the same
and thereafter to prosecute the curing of such default with due diligence and in
good faith, it being intended that in connection with a breach which does not
expose Landlord to criminal liability, not susceptible of being cured with due
diligence and in good faith within thirty (30) days, that the time allowed
Tenant within which to cure the same shall be extended for such period as may be
necessary for the curing thereof promptly with due diligence and in good faith;
(d) If breach shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement, other than those
referred to in subsections (a), (b) and (c) of this Section 14.1, and which
exposes Landlord to criminal liability, and such breach shall continue after
written notice thereof given by Landlord to Tenant, and Tenant fails to proceed
timely and promptly with all due diligence and in good faith to cure the same
and thereafter to prosecute the curing of such breach with all due diligence, it
being intended that in connection with a breach which exposes Landlord to
criminal liability that Tenant shall proceed immediately to cure or correct such
condition with continuity and with all due diligence and in good faith; then,
and in any such event, Landlord, at any time thereafter during the continuance
of any such Event of Default, may give written notice to Tenant specifying such
Event of Default or Events of Default and stating that this Lease Agreement
shall expire and terminate on the date specified in such notice, and upon the
date specified in such notice this Lease Agreement, all rights of Tenant under
this Lease Agreement, including all rights of renewal whether exercised or not,
shall expire and terminate. In the alternative or in addition to the foregoing
remedy, Landlord may assert and have the benefit of any other remedy allowed at
law, or in equity under the laws of the State of Florida.
14.2. Reletting by Landlord. At any time, or from time to time after
any such expiration or termination, Landlord may relet the Demised Premises, or
any portion thereof, in the name of Landlord or otherwise, for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which may include
concessions or free rent) as Landlord, in its sole and absolute discretion, may
determine and may collect and receive the rents therefor. Landlord shall in no
way be responsible or liable for any failure to relet the Demised Premises, or
any part thereof, or for any failure to collect any rent due upon any such
reletting. Landlord agrees to use reasonable good faith efforts to relet the
Demised Premises to mitigate damages.
14.3. Survival of Tenant's Obligations.
(a) Landlord's exercise of its remedies following an Event of
Default shall not relieve Tenant of its liabilities and obligations under this
Lease Agreement. In that event, whether or not the Demised Premises, or any
portion thereof, shall have been relet, Tenant shall be liable to Landlord for,
and shall pay to Landlord, as and for liquidated and agreed current damages for
Tenant's default:
(i) The equivalent of the amount of the Rent and any
other charges which would be payable by Tenant under this Lease
Agreement, less
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(ii) The net proceeds of any reletting effected
pursuant to the provisions of Section 14.3 hereof after deducting all
of Landlord's actual and reasonable expenses in connection with such
reletting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, reasonable attorneys' fees,
alteration costs, and expenses of preparation of the Demised Premises,
or any portion thereof, for such reletting.
(b) Tenant shall pay such current damages in the amount
determined in accordance with the terms of this Section, as set forth in a
written statement thereof from Landlord to Tenant (hereinafter called the
"Deficiency"), to Landlord in monthly installments on the days on which the Rent
and other charges payable by Tenant would have been payable under this Lease
Agreement if this Lease Agreement were still in effect, and Landlord shall be
entitled to recover from Tenant each monthly installment of the Deficiency as
the same shall arise.
14.4. Damages. At any time after an Event of Default, whether or not
Landlord shall have collected any monthly Deficiency as set forth in Section
14.4, Landlord shall, at its option, be entitled to recover from Tenant, and
Tenant shall pay to Landlord, within ten (10) days of Landlord's demand, as and
for final damages for Tenant's default, an amount equal to the positive
difference (if any) between (A) the then present value of the aggregate of the
Rent, Additional Rent and other charges (as set forth in Section 6.3(c)) to be
paid by Tenant hereunder for the unexpired portion of the term of the Lease
Agreement (assuming this Lease Agreement had not been so terminated), minus (B)
the present value of the then aggregate fair and reasonable market rent of the
Demised Premises and Additional Rent and other charges (as set forth in Section
6.3(c)) to be paid by Tenant for the same period less a good faith estimate of
the customary and reasonable expenses that may be incurred by Landlord in
reletting the Demised Premises.
14.5 Landlord's Default. In the event of the Landlord's defaults in
its performance of any covenant or obligation in this Lease Agreement, Tenant
shall not exercise any remedy until Tenant has given Landlord and its mortgagee
(provided that Tenant has been given written notice of the name and address of
such mortgagee) prior written notice of such act or omission and until a thirty
(30) day period of time to allow Landlord or the mortgagee to remedy such act or
omission shall have elapsed following the giving of such notice; provided
however, that if such act or omission cannot, with due diligence and in good
faith, be remedied within such thirty (30) day period, the Landlord and/or
mortgagee shall be allowed such further period of time as may be reasonably
necessary provided that it shall have commenced remedying the same with due
diligence and in good faith within said thirty (30) day period and proceeds with
due diligence to prosecute the curing of such act or omission. Notwithstanding
the foregoing, in the event Landlord's default hereunder results in the
reasonable possibility of criminal liability, or an immediate threat of bodily
harm to Tenant's employees, agents or invites, or damage to Tenant's property,
or material adverse interference with or impact on Tenant's conduct of its
business, Tenant may proceed to cure the default without prior notice to
Landlord provided, however, that in that event Tenant shall give written notice
to Landlord as soon as possible upon commencement of such cure. Nothing herein
contained shall be construed or interpreted as requiring any mortgagee to remedy
such act or omission. Landlord shall reimburse Tenant for any reasonable costs
or expenses paid by Tenant on behalf of Landlord under this Section 14.5,
together with interest at the Maximum Rate of Interest, within thirty (30) days
of written demand by Tenant. If Landlord fails to timely reimburse Tenant for
such costs or expenses, Tenant may deduct such amounts from subsequent payments
of Rent. Nothing herein shall provide any extension or cure right with respect
to the time frames for design and construction set forth in Article 2 of this
Lease Agreement or for the Substantial Completion Date.
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14.6. No Waiver. No failure by Landlord or by Tenant to insist upon the
performance of any of the terms of this Lease Agreement or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance by Landlord of
full or partial rent from Tenant or any third party during the continuance of
any such breach, shall constitute a waiver of any such breach or of any of the
terms of this Lease Agreement. None of the terms of this Lease Agreement to be
kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease Agreement, but each of the terms of this Lease Agreement
shall continue in full force and effect with respect to any other then existing
or subsequent breach of this Lease Agreement. No waiver of any default of
Landlord or Tenant herein shall be implied from any omission by non-defaulting
party to take any action on account of such default, if such default persists or
is repeated and no express waiver shall affect any default other than the
default specified in the express waiver and then only for the time and to the
extent therein stated. One or more waivers by Landlord or Tenant shall not be
construed as a waiver of a subsequent breach of the same covenant, term or
condition.
14.7. Remedies Cumulative. In the event of any breach or breach by
either party of any of the terms contained in this Lease Agreement, the
non-breaching party shall be entitled to enjoin such breach or breach and shall
have the right to invoke any right or remedy allowed at law or in equity or by
statute or otherwise as though entry, reentry, summary proceedings and other
remedies were not provided for in this Lease Agreement. Each remedy or right of
either party provided for in this Lease Agreement shall be cumulative and shall
be in addition to every other right or remedy provided for in this Lease
Agreement, or now or hereafter existing under Florida law or in equity or
otherwise, and the exercise or the beginning of the exercise by Landlord or
Tenant of any one or more of such rights or remedies shall not preclude the
simultaneous or later exercise by Landlord or Tenant of any or all other rights
or remedies.
14.8. Bankruptcy. If, during the term of this Lease Agreement, (i)
Tenant shall make an assignment for the benefit of creditors, (ii) a voluntary
petition be filed by Tenant under any law having for its purpose the
adjudication of Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to
an involuntary petition in bankruptcy, (iii) a receiver be appointed for the
property of Tenant, or (iv) any department of the state or federal government,
or any officer thereof duly authorized, shall take possession of the business or
property of Tenant as a result of the breach of any Law on the part of Tenant,
the occurrence of any such event shall be deemed a breach of the Lease Agreement
and this Lease Agreement shall, ipso facto upon the happening of any of said
events, be terminated and the same shall expire as fully and completely as if
the day of the happening of such event were the date hereon specifically fixed
for the expiration of the term, and Tenant will then quit and surrender the
Demised Premises, but Tenant shall remain liable as hereinafter provided.
Notwithstanding other provisions of this Lease Agreement, or any present or
future law, Landlord shall be entitled to recover from Tenant or Tenant's estate
(in lieu of the equivalent of the amount of all rent and other charges unpaid at
the date of such termination) the damages set forth in Sections 14.2, 14.3 and
14.4 above, unless any statute or rule of law covering the proceedings in which
such damages are to be proved shall limit the amount of such claim capable of
being so proved, in which case Landlord shall be entitled to prove as and for
damages by reason of such breach and termination of this Lease Agreement the
maximum amount which may be allowed by or under any such statute or rule of law
without prejudice to any rights of Landlord against any guarantor of Tenant's
obligations herein. Nothing contained herein shall limit or prejudice Landlord's
right to prove and obtain as damages arising out of such breach and termination
the maximum amount allowed by any such statute or rule of law which may govern
the proceedings in which such damages are to be proved, whether or
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not such amount be greater equal to, or less than the amount of damages to which
Landlord is entitled under Section 14.4. Specified remedies to which Landlord
may resort under the terms of this Section 14.8 are cumulative and are not
intended to be exclusive of any other remedies or means of redress to which
Landlord may be lawfully entitled.
14.9. Waiver by Tenant. Tenant hereby expressly waives, so far as
permitted by law, any and all right of redemption or reentry or repossession or
to revive the validity and existence of this Lease Agreement in the event that
Tenant shall be dispossessed by a judgment or by order of any court having
jurisdiction over the Demised Premises or the interpretation of this Lease
Agreement or in case of entry, reentry or repossession by Landlord or in case of
any expiration or termination of this Lease Agreement.
15. DESTRUCTION AND RESTORATION.
15.1. Destruction and Restoration. Landlord covenants and agrees that
in case of damage to or destruction of the Landlord's Work and Tenant
Improvements after the Commencement Date by fire or otherwise, Landlord, at its
sole cost and expense, shall promptly restore, repair, replace and rebuild the
same within a period of twelve (12) months from the date of the damage or
destruction (provided, however, such period shall be subject to a Force Majeure
Event). The Demised Premises (including Tenant Landlord's Work and Tenant
Improvements, and Tenant's changes and alterations made pursuant to Section
20.1), shall be restored as nearly as possible to the condition that the same
were in immediately prior to such damage or destruction with such changes or
alterations (made in conformity with Article 20 hereof) as may be reasonably
acceptable to Landlord and Tenant or required by Law. Tenant shall forthwith
give Landlord written notice of such damage or destruction upon the occurrence
thereof and specify in such notice, in reasonable detail, the extent thereof.
Such restoration, repairs, replacements, rebuilding, changes and alterations,
including the cost of temporary repairs for the protection of the Demised
Premises, or any portion thereof, pending completion thereof are sometimes
hereinafter referred to as the "Restoration." The Restoration shall be carried
on and completed in accordance with the provisions and conditions of this
Article 15.
15.2. Application of Insurance Proceeds. All insurance monies recovered
by Landlord on account of such damage or destruction, less the costs, if any, to
Landlord of such recovery, shall be applied to the payment of the costs of the
Restoration and shall be paid out from time to time as the Restoration
progresses.
15.3. Continuance of Tenant's Obligations. Except as provided for in
Section 15.5, no destruction of or damage to the Demised Premises, or any
portion thereof, by fire, casualty or otherwise shall permit Tenant to surrender
this Lease Agreement or shall relieve Tenant from its liability to pay to
Landlord the Rent and Additional Rent payable under this Lease Agreement or from
any of its other obligations under this Lease Agreement, and Tenant waives any
rights now or hereafter conferred upon Tenant by present or future law or
otherwise to quit or surrender this Lease Agreement or the Demised Premises, or
any portion thereof, to Landlord or to any suspension, diminution, abatement or
reduction of rent on account of any such damage or destruction.
15.4. Completion of Restoration. The foregoing provisions of this
Article apply only to damage or destruction of the Landlord's Work and Tenant
Improvements by fire, casualty or other cause occurring after the Commencement
Date. Any such damage or destruction occurring prior to such time shall be
restored, repaired, replaced and rebuilt by Landlord. During all periods of
construction Landlord shall
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obtain and maintain the builder's risk insurance coverage referred to in Article
2 hereof all monies received by Landlord under its builder's risk insurance
coverage shall be applied by Landlord to complete the Restoration of such damage
or destruction and if such insurance proceeds are insufficient Landlord shall
provide all additional funds necessary to complete the Restoration of the
Landlord's Work and Tenant Improvements.
15.5. Adjustment of Rent and Termination of Lease. In the event of
damage to or destruction of the Landlord's Work and Tenant Improvements, in
whole or in part, under Section 15.1 hereof, the Base Rent payable hereunder for
the period from and after such damage or destruction to the date of Substantial
Completion of the Restoration of the Landlord's Work and Tenant Improvements
shall be equitably adjusted and abated based on the portion of the Landlord's
Work and Tenant Improvements, parking and access not being utilized by Tenant
after such damage or destruction. If Landlord fails to complete the Restoration
of the Demised Premises required under this Lease Agreement within the time
period set forth under Section 15.1 above, Tenant may terminate this Lease upon
giving Landlord written notice of its election to terminate fifteen (15) days
following the expiration of such time period or Tenant shall have waived its
right to terminate for this breach of the Lease, except to the extent otherwise
provided under this Section 15.5. If, within twenty-four (24) months prior to
the expiration of the Term, the Landlord's Work and Tenant Improvements shall be
destroyed or damaged to such an extent that the Restoration thereof will cost an
amount in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) over and
above the net proceeds of the insurance required to be and maintained by
Landlord, hereinafter referred to as the "Excess Funds", Landlord shall, with
reasonable promptness, notify Tenant, in writing, of such fact, which notice
shall be accompanied by a detailed statement of the nature and extent of such
damage or destruction and detailed estimates of the total cost of Restoration.
Within thirty (30) days after the giving of such notice, Tenant shall notify
Landlord either that (i) it will furnish, at its sole cost and expense, the
Excess Funds which are necessarily required in connection with the Restoration
(to be disbursed in conformity with the requirements of Section 15.2 hereof), or
(ii) it is unwilling to expend the Excess Funds for such purpose. Failure to
give such notice within such thirty (30) day period shall be deemed an election
by Tenant not to make such expenditure. In the event that Landlord, subsequent
to Tenant's election not to make such expenditure, elects by written notice to
Tenant ("Landlord's Second Notice") not to expend the Excess Funds, then Tenant
shall have the option, within thirty (30) days after receipt of Landlord's
Second Notice to either expend the Excess Funds or terminate this Lease
Agreement and surrender the Demised Premises to Landlord by a notice, in
writing, addressed to Landlord, specifying such election accompanied by Tenant's
payment of the then remaining balance, if any, of the Rent and other charges
hereafter specified in this Section. Upon the giving of such notice and the
payment of such amounts, the Term shall cease and come to an end on a day to be
specified in Tenant's notice, which date shall not be more than thirty (30) days
after the date of delivery of such notice by Tenant to Landlord. Tenant shall
accompany such notice with its payment of all Rent and other charges payable by
Tenant hereunder, justly apportioned to the date of such termination. In such
event Landlord shall be entitled to the proceeds of all insurance required to be
carried hereunder.
If, within twenty-four (24) months prior to the expiration of the Term,
the Landlord's Work and Tenant Improvements shall be destroyed or damaged to
such an extent that the Restoration thereof cannot be reasonably completed by
Landlord within six (6) months of such damage or destruction, Landlord may
terminate this Lease by written notice of the foregoing to Tenant with a demand
for the payment of the remaining balance of the Rent and other charges due under
the Lease through the date of termination. If Landlord does not elect to
terminate, Landlord shall, with reasonable promptness notify Tenant in writing
of such fact, which notice shall be accompanied by a detailed statement of the
proposed schedule
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for the Restoration period. Within thirty (30) days after the giving of such
notice, Tenant shall notify Landlord either that (i) it will agree to the
construction schedule of Landlord or (ii) it will elect to terminate this Lease
Agreement and surrender the Demised Premises to Landlord by notice in writing
addressed to Landlord specifying such election accompanied by Tenant's payment
of the then remaining balance, if any, of the Rent and other charges due and
owing by Tenant under this Lease Agreement. Upon the giving of such notice and
the payment of such amounts, the Term shall cease and come to an end on a day to
be specified in Tenant's notice, which date shall not be more than 30 days after
the delivery of such notice by Tenant to Landlord. In such event Landlord shall
be entitled to the proceeds of all insurance required to be carried hereunder.
In the event of any termination of this Lease Agreement under this
Section 15, Landlord shall refund to Tenant any prepaid Rent pertaining to that
period after the date of such termination and the actual out-of-pocket
unamortized contribution of Tenant ("Tenant's Contribution") to Landlord's Work
and Tenant Improvements to the extent of its proportionate share of insurance
proceeds.
16. CONDEMNATION.
16.1. Condemnation of Entire Demised Premises.
(a) If, during the Term, the entire Demised Premises shall be
taken as the result of the exercise of the power of eminent domain (hereinafter
referred to as the "Proceedings"), this Lease Agreement and all right, title and
interest of Tenant hereunder shall cease and come to an end on the sooner of (i)
the date of vesting of title pursuant to such Proceedings, or (ii) the date on
which Tenant can no longer occupy the Demised Premises as set forth herein and
Landlord shall be entitled to and shall receive the total award made in such
Proceedings, Tenant hereby assigning any interest in such awards, damages,
consequential damages and compensation to Landlord and Tenant hereby waiving any
right Tenant has now or may have under present or future law to receive any
separate award of damages for its interest in the Demised Premises, or any
portion thereof, or its interest in this Lease Agreement, except as hereinafter
provided in subsection (b).
(b) In any taking of the Demised Premises, or any portion
thereof, whether or not this Lease Agreement is terminated as in this Section
provided, Tenant shall not be entitled to any portion of the award for the
taking of the Demised Premises or damage to the Landlord's Work and Tenant
Improvements, except as otherwise provided for in Section 16.3 with respect to
the restoration of the Landlord's Work and Tenant Improvements, or for the
estate or interest of Tenant therein, all such award, damages, consequential
damages and compensation being hereby assigned to Landlord, and Tenant hereby
waives any right it now has or may have under present or future law to receive
any separate award of damages for its interest in the Demised Premises, or any
portion thereof, or its interest in this Lease Agreement, except that Tenant
shall have, nevertheless, the limited right to prove in the Proceedings and to
receive any award which may be made for damages to or condemnation of Tenant's
trade fixtures and equipment, the damage to Tenant's business and for Tenant's
relocation costs, and moving expenses in connection therewith and for Tenant's
Contribution.
16.2. Partial Condemnation/Termination of Lease. If, during the
Initial Term of this Lease Agreement, or any extension or renewal thereof, less
than the entire Demised Premises, shall be taken in any such Proceedings, this
Lease Agreement shall, upon the sooner of (i) the date of vesting of title in
the Proceedings or (ii) the date on which Tenant can no longer occupy the
Demised Premises as set forth
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herein that constitutes a "Material Partial Condemnation" (as defined below),
terminate as to the portion of the Demised Premises so taken, and Tenant may, at
its option, terminate this Lease Agreement as to the remainder of the Demised
Premises. A "Material Partial Condemnation" shall mean a taking pursuant to
which the business of Tenant conducted in the portion of the Demised Premises
taken cannot reasonably be carried on with substantially the same scope, utility
and efficiency in the remainder of the Demised Premises. Such termination as to
the remainder of the Demised Premises shall be effected by notice in writing
given not more than sixty (60) days after the date of vesting of title in such
Proceedings, and shall specify a date not more than sixty (60) days after the
giving of such notice as the date for such termination. Upon the date specified
in such notice, the Term, and all right, title and interest of Tenant hereunder,
shall cease and come to an end. In the event that Tenant elects not to terminate
this Lease Agreement as to the remainder of the Demised Premises, the rights and
obligations of Landlord and Tenant shall be governed by the provisions of
Section 16.3 below.
16.3. Partial Condemnation/Continuation of Lease. If, during the
Initial Term, or any extension or renewal thereof, less than the entire Demised
Premises shall be taken in any such Proceeding, and this Lease Agreement is not
terminated as in Section 16.2 hereof provided (a "Minor Partial Condemnation"),
this Lease Agreement shall, upon the sooner of (i) the date of vesting of title
in the Proceedings or (ii) the date on which Tenant can no longer occupy the
Demised Premises as set forth herein, terminate as to the parts so taken. The
net amount of the award (after deduction of all costs and expenses, including
attorneys" fees) shall be held by Landlord and applied as hereinafter provided.
Landlord, in such case, covenants and agrees, at Landlord's sole cost and
expense (subject to reimbursement to the extent hereinafter provided), promptly
to restore that portion of the Landlord's Work and Tenant Improvements on the
Demised Premises not so taken to a complete architectural and mechanical unit
for the use and occupancy of Tenant as in this Lease Agreement. Landlord agrees
in connection with such restoration work to apply so much of the net amount of
any award (after deduction of all costs and expenses, including attorneys' fees)
that may be received by Landlord in any such Proceedings for physical damage to
the Landlord's Work and Tenant Improvements as a result of such taking, to the
costs of such restoration work. If payment of the award for physical damage to
the Landlord's Work and Tenant Improvements as a result of such taking, as
aforesaid, shall not be received by Landlord in time to permit payments as the
restoration work progresses (except in the event of an appeal of the award by
Landlord), Landlord shall, nevertheless, perform and fully pay for such work
without delay (except such Force Majeure Events as are referred to in Article
2.5 hereof). If Landlord appeals an award and payment of the award is delayed
pending appeal, Landlord shall, nevertheless, perform and fully pay for such
work without delay (except Force Majeure Events as are referred to in Article
2.3 hereof.)
16.4. Continuance of Obligations. In the event of any termination of
this Lease Agreement, or any part thereof, as a result of any such Proceedings,
Tenant shall pay to Landlord all Rent and other charges payable hereunder with
respect to that portion of the Demised Premises so taken in such Proceedings
with respect to which this Lease Agreement shall have terminated justly
apportioned to the date of such termination, and Landlord shall refund to Tenant
any Rent paid pertaining to that portion of the Demised Premises for the period
after the date of such termination. In the event this Lease Agreement is not
terminated in accordance with the terms of this Article 16, then from and after
the sooner of (i) the date of vesting of title in such Proceedings or (ii) the
date on which Tenant can no longer occupy the Demised Premises as set forth
herein , Tenant shall continue to pay the Rent and other charges payable
hereunder, as in this Lease Agreement provided, to be paid by Tenant subject to
an abatement of a just and proportionate part of the Base Rent and Estimated
Operating Expenses according to the extent and
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nature of such taking as provided for in Section 16.5 with respect to the
Demised Premises remaining after such taking.
16.5. Adjustment of Rent. In the event of a partial taking of the
Demised Premises under Section 16.2 hereof, or a partial taking of the Demised
Premises under Section 16.3 hereof, followed by Tenant's election not to
terminate this Lease Agreement, the fixed Base Rent payable hereunder during the
period from and after the sooner of the date of vesting of title in such
Proceedings or the date on which Tenant can no longer occupy the Demised
Premises as set forth herein to the termination of this Lease Agreement shall be
reduced to a sum equal to the product of the Base Rent provided for herein
multiplied by a fraction, the numerator of which is the value of the Demised
Premises after such taking and after the same has been restored to a complete
architectural unit, and the denominator of which is the value of the Demised
Premises prior to such taking.
16.6. Determination of "Material Partial Condemnation" and "Minor
Partial Condemnation;" Arbitration. Landlord and Tenant shall make reasonable,
good faith efforts to reach agreement whether a taking pursuant to Proceedings
constitutes a "Material Partial Condemnation" or a "Minor Partial Condemnation"
as defined in this Article 16. If the parties are unable to reach agreement,
such dispute shall be resolved by binding arbitration using the same procedure
as is set forth in Section 22.25, subject to the following modifications: (i)
the appraiser(s) shall be instructed to determine whether the applicable
condemnation constitutes a "Material Partial Condemnation" or a "Minor Partial
Condemnation" as defined in Article 16 (not market value); and (ii) the last
sentence of Section 22.25 will be deemed modified to provide that the
determination of at least two of the three appraisers shall prevail.
17. ASSIGNMENT, SUBLETTING, ETC.
17.1. Restriction on Transfer (Transfer Requiring Landlord Consent).
Except with respect to Affiliate Transfers (as described in Section 17.2 below),
Tenant shall not sublet the Demised Premises, or any portion thereof, nor
assign, mortgage, pledge, transfer or otherwise encumber or dispose of this
Lease Agreement, or any interest therein, or in any manner assign, mortgage,
pledge, transfer or otherwise encumber or dispose of its interest or estate in
the Demised Premises, or any portion thereof under this Lease Agreement
(collectively, a "Transfer") without obtaining Landlord's prior written consent
in each and every instance, which consent shall not be unreasonably withheld,
delayed or conditioned. In the event of a Transfer (or an Affiliate Transfer),
Tenant shall remain liable under the Lease Agreement, and the Letter of Credit
shall remain in full force and effect (except as otherwise provided in Section
27).
17.2. Transfers. Notwithstanding anything in this Lease Agreement to
the contrary, Tenant may, upon fifteen (15) days prior written notice (unless
such disclosure is prohibited because of laws relating to public offerings, then
within fifteen (15) days subsequent to such transfer) to Landlord, in its sole
and absolute discretion and without the prior written consent or approval of
Landlord, assign, sublease, transfer, or otherwise dispose of any or all of its
interest in, to or under this Lease Agreement or in, to or under the Demised
Premises to an "Affiliate" (as such term as hereinafter defined) (any such
transaction or event being herein called an "Affiliate Transfer"), provided that
such Affiliate assumes Tenant's obligations under the Lease Agreement. For the
purposes of this Section, the term "Affiliate" shall mean and refer to: (i) any
person or entity which acquires all or substantially all of the assets or the
issued and outstanding capital stock of Tenant; (ii) any corporation or other
entity resulting from reorganization, consolidation or merger of Tenant into or
with any other entity; (iii) the holder or holders of the majority of the issued
or outstanding capital stock of Tenant or of any of the entities described in
this Section; or
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(iv) any parent, subsidiary, brother, sister, or affiliate corporation or entity
of Tenant. As used in the foregoing clause (iv), the expression "affiliate
corporation or entity" shall mean and refer to a corporation or entity that
directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under the control of, Tenant. The term "control" as used in
the foregoing provision shall mean and refer to the right and power, direct or
indirect, to direct or cause the direction of the management and policies of
such corporation.
In the case of any Transfer under this Section other than an Affiliate
Transfer, Tenant's notice to Landlord of the proposed Transfer shall include
information regarding the identity and financial condition of the proposed
transferee. Landlord shall have thirty (30) days after receipt of such notice
and information to notify Tenant of its approval or disapproval of the proposed
Transfer. Any notice of disapproval shall contain the reasons for such
disapproval. Landlord's failure to notify Tenant of its approval or disapproval
of such proposed Transfer within such thirty (30) day period shall be deemed an
approval. Tenant shall reimburse Landlord for reasonable costs incurred in
reviewing Tenant's request for Landlord's consent to a proposed Transfer,
including without limitation, reasonable attorneys' fees for outside counsel).
18. SUBORDINATION, NONDISTURBANCE, NOTICE TO MORTGAGEE AND ATTORNMENT.
18.1. Subordination and Attornment by Tenant. This Lease Agreement and
all rights of Tenant herein, and all interest or estate of Tenant in the Demised
Premises, or any portion thereof, shall be subordinate to the lien of any
mortgage, deed of trust, security instrument or other document of like nature
("Mortgage"), which at any time may be placed upon the Demised Premises, or any
portion thereof, by Landlord, and to any replacements, renewals, amendments,
modifications, extensions or refinancing thereof, and to each and every advance
made under any Mortgage. The subordination and attornment provided for in this
Section 18.1 is conditioned upon Landlord obtaining a Subordination,
Non-Disturbance and Attornment Agreement ("SNDA") from the existing mortgagee,
and from any future mortgagee providing that: (i) such ground lessee or
mortgagee will fully recognize Tenant's rights under this Lease Agreement
(including without limitation, Tenant's rights under the Purchase Option), and
in the event of a termination of or foreclosure under any such ground lease or
mortgage, such holder will respect Tenant's rights under this Lease Agreement
(including without limitation, Tenant's rights under the Purchase Option), and
shall not disturb Tenant's possession of the Demised Premises, provided that
Tenant is not in default of any of its material obligations under this Lease
Agreement subject to the giving of notice, if any, and the expiration of any
applicable cure period; and (ii) that upon mortgagee acquiring title to the
Demised Premises, Tenant shall attorn directly to said mortgagee or its
purchaser. Tenant shall agree to such other terms and conditions in the SNDA as
may be reasonably required by said mortgagee provided that such terms and
conditions do not increase or alter any of Tenant's obligations under this Lease
Agreement.
19. SIGNS. Tenant shall have the right to install exclusive signage on the
side of the Building or parapets, subject to all applicable rules, ordinances
and laws, including without limitation, approval of the Federal Aviation
Administration ("FAA") and approval under the Declaration (as defined in Section
24). Tenant shall have the right to install rooftop signage subject to all
applicable rules, ordinances and laws, including without limitation, rules and
regulations of the FAA, and subject to Landlord's right to approve its
structural integrity. Additionally, Tenant's right to install roof-top signage
is subject to compliance with all terms and conditions of Landlord's roof
warranty. This signage will be provided and installed
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by Tenant, at Tenant's cost, which may be reimbursed from available allowances
for Tenant Improvements (but not from the Contingency Fund in the Budget).
Subject to the terms of the License Agreement, Tenant will have the right to
one-half (1/2) of the available space on the proposed monument sign that will be
visible from Roosevelt Boulevard and the maximum size permitted by local rules,
ordinances and laws. Tenant acknowledges that the adjoining hotel shall also
have signage rights to one-half (1/2) of the available space on the proposed
monument sign and that the design of the monument sign will be mutually agreed
upon by Tenant and the owner of the hotel parcel to the extent permitted under
local rules, regulations and ordinances. At Tenant's request, Landlord, at its
sole cost and expense, agrees to use its diligent good faith efforts to seek
approval (including any necessary variances) for a monument sign for Tenant's
sole use, of a size, shape and color and other characteristics as Tenant
determines at the entrance on Roosevelt Boulevard (one for the Demised Premises
and one for the owner of the hotel parcel) as opposed to one shared monument
sign.
20. CHANGES AND ALTERATIONS.
20.1. Tenant's Changes and Alterations. Subject to the terms and
conditions of this Section 20, Tenant shall have the right at any time, and from
time to time during the term of this Lease Agreement, to make such changes and
alterations, structural or otherwise, to the Landlord's Work and Tenant
Improvements and fixtures hereafter erected on the Demised Premises as Tenant
shall deem necessary or desirable in connection with the requirements of its
business, which changes and alterations (other than changes or alterations of
Tenant's movable trade fixtures and equipment) shall be made in all cases
subject to the following conditions, which Tenant covenants to observe and
perform:
(a) Permits. No change or alteration shall be undertaken until
Tenant shall have procured and paid for, so far as the same may be required from
time to time, all municipal, state and federal permits and authorizations of the
various governmental bodies and departments having jurisdiction thereof, and
Landlord agrees to join in the application for such permits or authorizations
whenever such action is necessary, all at Tenant's sole cost and expense,
provided such applications do not cause Landlord to become liable for any cost,
fees or expenses.
(b) Compliance with Final Plans and Specifications. Before
commencement of any change, alteration, restoration or construction involving
(a) alteration of a structural component of the Building, (b) alteration of the
exterior surface of the Building (excluding signage, landscaping and other
matters that do not directly or permanently affect the exterior surface of the
Building, and (c) non-structural alterations to the interior of the Building
with an estimated cost of more than $100,000.00) (collectively, "Restricted
Alterations"), Tenant shall: (i) furnish Landlord with detailed plans and
specifications of the proposed change or alteration; (ii) obtain Landlord's
prior written consent, which consent shall not be dependent on aesthetic
considerations and shall not be unreasonably withheld or delayed or conditioned
so long as the Restricted Alterations do not affect any Building systems; (iii)
obtain Landlord's prior written approval of a licensed architect or licensed
professional engineer selected and paid for by Tenant, who shall supervise any
such work if Tenant elects to engage such architect or engineer (hereinafter
referred to as "Alterations Architect or Engineer"); and (iv) obtain Landlord's
prior written approval of detailed Final Plans and Specifications prepared and
approved in writing by said Alterations Architect or Engineer, and of each
amendment and change thereto. With respect to Landlord's prior approval of
Restricted Alterations, (A) Landlord shall not unreasonably withhold, condition
or delay its approval of non-structural Restricted Alterations, and (B) Landlord
may withhold its approval of structural Restricted Alterations in its sole
discretion. All changes or alterations under this Article 20 other than
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Restricted Alterations are referred to as "Unrestricted Alterations." Tenant
shall have the right to commence and proceed with Unrestricted Alterations
without obtaining Landlord's prior consent or approval; provided, however, that
Tenant shall give Landlord reasonable notice prior to commencement of the
Unrestricted Alteration that it is making an Unrestricted Alteration.
(c) Utility Maintained. Any change or alteration shall, when
completed, be of such character as not to materially reduce the utility of the
Demised Premises or the Building for Tenant's Intended Use below its utility for
such use immediately before such change or alteration, nor shall such change or
alteration reduce the area or cubic content of the Building, nor change the
character of the Demised Premises or the Building as to use without Landlord's
express written consent.
(d) Compliance with Laws. All work done in connection with any
change or alteration shall be done promptly and in a good and workmanlike manner
and in compliance with all building and zoning laws of the place in which the
Demised Premises are situated, and with all Laws. The cost of any such change or
alteration shall be paid in cash so that the Demised Premises and all portions
thereof shall at all times be free of liens for labor and materials supplied to
the Demised Premises, or any portion thereof provided, however that the
foregoing is not intended to prohibit progress payments, retainages, escrows and
related payment mechanisms which are customary among prudent and well
represented owners in the commercial construction industry. The work of any
change or alteration shall be prosecuted with reasonable dispatch, delays due to
strikes, lockouts, acts of God, inability to obtain labor or materials,
governmental restrictions or similar causes beyond the control of Tenant
excepted. Tenant shall obtain and maintain, at its sole cost and expense, during
the performance of the work, workers' compensation insurance covering all
persons employed in connection with the work and with respect to which death or
injury claims could be asserted against Landlord or Tenant or against the
Demised Premises or any interest therein, together with comprehensive general
liability insurance for the mutual benefit of Landlord and Tenant with limits of
not less than Two Million Dollars ($2,000,000.00) in the event of injury to one
person, Two Million Dollars ($2,000,000.00) in respect to any one accident or
occurrence, and Five Hundred Thousand Dollars ($500,000.00) for property damage,
and the fire insurance with "extended coverage" endorsement required by Section
8.1 hereof shall be supplemented with "builder's risk" insurance on a completed
value form or other comparable coverage on the work. All such insurance shall be
in a company or companies authorized to do business in the State of Florida and
reasonably satisfactory to Landlord, and all such policies of insurance or
certificates evidencing insurance shall be delivered to Landlord endorsed
"Premium Paid" by the company or agency issuing the same, or with other evidence
of payment of the premium reasonably satisfactory to Landlord.
(e) Removal of Improvements. Tenant's business and trade
fixtures, machinery and equipment, whether or not attached to the Demised
Premises, and all furniture, furnishings and other articles of movable personal
property shall be and remain Tenant's property and may be removed by Tenant
prior to the expiration date of this Lease Agreement at Tenant's sole cost and
expense and Tenant shall repair and restore any damage caused by such removal.
Landlord agrees that Tenant shall not be required to remove any part of the
Landlord's Work and Tenant shall not be required to remove any alteration,
installation, addition or improvement made by or on behalf of Tenant, after
completion of the Landlord's Work, unless: (i) such alteration, installation, or
improvement does not constitute a normal office alteration, installation,
addition or improvement, and (ii) Landlord, at that time it grants its approval
to such alteration, installation or improvement, notifies Tenant in writing that
the same must be removed at the end of the Lease Term.
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21. INDEMNITY.
21.1 Indemnity of Landlord. Tenant shall pay and discharge, and
shall defend, indemnify and hold Landlord (and Landlord's Affiliates and the
respective officers, directors, agents, employees, representatives, successors
and assigns of each), forever harmless from, against and in respect of all
obligations, settlements, liabilities, losses, damages, injunctions, suits,
actions, proceedings, fines, penalties, claims, liens, demands, costs, charges
and expenses of every kind or nature, including, without limitation, reasonable
fees of attorneys and other professionals, and disbursements which may be
imposed on, incurred by or asserted against the persons hereby required to be
indemnified (but not against any of the same to the extent that a negligent or
willful act or omission of any of such parties was the cause of the same),
arising directly or indirectly from or out of:
(a) any failure by Tenant to perform any of the agreements,
terms, covenants or conditions on Tenant's part to be performed under this Lease
Agreement;
(b) any wrongful act or negligence on the part of Tenant or
its Affiliates, or their respective agents, employees, contractors or invitees,
or any failure of Tenant to comply with any applicable Laws or with the
directive of any governmental authority that Tenant is required to comply with
pursuant to this Lease Agreement; or
(c) any other provision of this Lease Agreement which provides
that Tenant shall indemnify and/or hold harmless Landlord in respect of the
matters contained in such provision.
21.2. Indemnity of Tenant. Landlord shall pay and discharge, and
shall defend, indemnify and hold Tenant (and Tenant's Affiliates and their
respective officers, directors, agents, employees, representatives, successors
and assigns of each) forever harmless from, against and in respect of all
obligations, settlements, liabilities, losses, damages, injunctions, suits,
actions, proceedings, fines, penalties, claims, liens, demands, costs, charges
and expenses of every kind or nature, including, without limitation, reasonable
fees of attorneys and other professionals, and disbursements which may be
imposed on, incurred by or asserted against the persons hereby required to be
indemnified (but not against any of the same to the extent that a negligent or
willful act or omission of any such parties was the cause of same), arising
directly or indirectly from or out of:
(a) any failure by Landlord to perform any of the agreements,
terms, covenants or conditions on Landlord's part to be performed under this
Lease Agreement;
(b) any wrongful act or negligence on the part of Landlord or
its Affiliates, or their respective agents, employees or contractors or invitees
or any failure of Landlord to comply with any applicable Laws or with the
directive of any governmental authority that Landlord is required to comply with
pursuant to this Lease Agreement; or
(c) any other provision of this Lease Agreement which provides
that Landlord shall indemnify and/or hold harmless Tenant in respect of the
matters contained in such provision.
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21.3. Defense Provisions.
(a) Any party seeking indemnification under this Lease
Agreement (the "Indemnified Party") shall give notice to the party required to
provide indemnification hereunder (the "Indemnifying Party") promptly after the
Indemnified Party has actual knowledge of any claim as to which Indemnity may be
sought hereunder, and the Indemnified Party shall permit the Indemnifying Party
(at the expense of the Indemnifying Party) to assume the defense of any claim or
litigation resulting therefrom; provided, however that: (i) counsel for the
Indemnifying Party who shall conduct the defense of such claim or litigation
shall be reasonably satisfactory to the Indemnified Party (The parties agree
that if any claim is covered by insurance that the insurance company counsel
shall be deemed to be satisfactory); (ii) the Indemnified Party may participate
in such defense, but only at the Indemnified Party's own cost and expense; and
(iii) the omission by the Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its indemnification obligations
hereunder except to the extent that such omission results in a failure of actual
notice to the Indemnifying Party and the Indemnifying Party is actually and
materially damaged as a result of such failure to give notice.
(b) The Indemnifying Party shall not, except with the consent
of the Indemnified Party, consent to entry of any judgment or administrative
order or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the Indemnified Party of
a release from all liability with respect to such claim or litigation.
(c) In the event that the Indemnifying Party does not accept
the defense of any matter as above provided, the Indemnified Party shall have
the full right to defend against any such claim or demand, and shall be entitled
to settle or agree to pay in full such claim or demand, in its sole discretion.
Any such defense, settlement or payment by the Indemnified Party shall not
constitute a waiver, release or discharge of the Indemnifying Party's
obligations under this Article, it being understood and agreed that any such
defense, settlement, or payment shall be without prejudice to the right of the
Indemnified Party to pursue remedies against the Indemnifying Party arising out
of or related to the Indemnifying Party's failure or refusal to defend the
Indemnified Party as required herein. Notwithstanding the foregoing, any
Indemnified Party shall have the right to settle any such action or proceeding
at any time, provided that it releases the Indemnifying Party from any further
indemnification obligation hereunder with respect to such settlement.
(d) The provisions of this Article shall survive the
expiration or sooner termination of this Lease.
22. MISCELLANEOUS PROVISIONS.
22.1. Entry by Landlord. Upon at least one (1) business day's
notice, Tenant agrees to permit Landlord and authorized representatives of
Landlord, accompanied by a representative of Tenant, to enter upon the Demised
Premises at all reasonable times during ordinary business hours (or at other
times, and upon such notice as is reasonable under the circumstances, in bona
fide emergency situations) for the purpose of inspecting the same and making any
necessary repairs to comply with any laws, ordinances, rules, regulations or
requirements of any public body, or the Board of Fire Underwriters, or any
similar body. Nothing herein contained shall imply any duty upon the part of
Landlord to do any such work which, under any provision of this Lease Agreement,
Tenant may be required to perform and the performance thereof by Landlord shall
not constitute a waiver of Tenant's default in failing to perform
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the same. Landlord may, during the progress of any work, keep and store upon the
Demised Premises all necessary materials, tools and equipment. Landlord agrees
to use reasonable good faith efforts to minimize any interference or disruption
of Tenant's use of the Demised Premises. However, Landlord shall not in any
event be liable for inconvenience, annoyance, disturbance, loss of business or
other damage to Tenant by reason of making repairs or the performance of any
work in or about the Demised Premises, or on account of bringing material,
supplies and equipment into, upon or through the Demised Premises during the
course thereof, and the obligations of Tenant under this Lease Agreement shall
not be thereby affected in any manner whatsoever.
22.2. Exhibition of Demised Premises. Upon prior appointment and at
least two (2) business' days notice, Landlord is hereby given the right during
usual business hours at any time during the Term to enter
upon the Demised Premises and to exhibit the same for the purpose of mortgaging
or selling the same. Tenant may, at is option, elect to require that one or more
agents or representatives of Tenant be present during all such activity. During
the final year of the Term or Renewal Term, if applicable, Landlord shall be
entitled to display on the Land, in a location reasonably acceptable to Tenant,
in such manner as to not unreasonably interfere with Tenant's business, signs
indicating that the Demised Premises are for rent or sale and suitably
identifying Landlord or its agent. Tenant agrees that such signs may remain
unmolested upon the Land and that Landlord may exhibit said premises to
prospective Tenants during said period as set forth above.
22.3. Notices. All notices which are required or permitted hereunder
must be in writing and shall be deemed to have been given, delivered or made, as
the case may be (i) when delivered by personal delivery or (ii) subject to
verification by the date of the return receipt, three (3) business days after
having been deposited in the United States Mail, certified or registered, return
receipt requested, sufficient postage affixed and prepaid, or (iii) subject to
verification of receipt by the courier service's record of delivery, one (1)
business day after having been deposited with an expedited overnight courier
service (such as, by way of example, but not limitation, U.S. Express Mail,
Federal Express or Purolator), addressed to the party to whom notice is intended
to be given at the address set forth below:
To Landlord: Hogan-Burt Development, Inc.
101 E. Kennedy Blvd., Suit 4000
Tampa, FL 33602
Attention: James T. Burt, II
With a copy to: ORIX Real Estate Equities, Inc.
100 North Riverside Plaza, Suite 1400
Chicago, Illinois 60606
Attention: James Purinton
and
With a copy to: Hill, Ward & Henderson
101 East Kennedy Boulevard
Suite 3700
Tampa, Florida 33602
Attention: W. Lawrence Smith, Esq.
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To Tenant: Digital Lightwave, Inc.
601 Cleveland St., 5th Floor
Clearwater, FL 34615
Attention: Seth Joseph
With a copy to: Holland & Knight
400 N. Ashley Dr., Suite 2300
Tampa, FL 33602
Attention: Richard D. Eckhard
or at such other place as the parties may from time to time designate by written
notice to each other.
22.4. Quiet Enjoyment.
Landlord covenants, represents and warrants that it has full right and
power to execute and perform this Lease, [that its general partner is validly
formed and in good standing and has full right and power to execute this Lease]
and has full right and power to grant the estate demised herein and that Tenant,
on payment of the Rent, Additional Rent and other charges payable by Tenant
pursuant to this Lease Agreement and performance of the covenants and agreements
hereof, except for the Permitted Encumbrances shall peaceably and quietly have,
hold and enjoy the Demised Premises and all rights, easements, appurtenances and
privileges belonging in or otherwise appertaining thereto during the Lease Term
without molestation or hindrance by Landlord or of any person whomsoever.
Effective on the date that Landlord purchases the Land pursuant to
Section 28 of this Lease Agreement, Landlord covenants, represents and warrants
that it is seized of an indefeasible estate in fee simple or has a good and
marketable leasehold title to the Land, free and clear of any liens,
encumbrances, restrictions and violations (or claims or notices thereof), except
as follows:
(i) Public utility easements or licenses not impairing Tenant's
use of the Demised Premises nor located under the Building nor
impairing the visibility of the Building or any signage of
Tenant (whether Building signage, pylon signage or monument
signage);
(ii) The "Permitted Encumbrances"
Landlord shall, without expense to Tenant as a condition of the
occurrence of the Commencement Date, furnish to Tenant (i) a copy of an American
Land Title Association Policy for leasehold title insurance in the amount of
$1,800,000.00 certifying to Tenant that Landlord's title, together with the
appurtenant easements created under the Declaration, is as herein represented
and insuring that the Demised Premises are within the bounds of the property
described in EXHIBIT "A", and (ii) a survey prepared in compliance with the
minimum requirements of the State of Florida by a licensed surveyor of the land
described in EXHIBIT "A" certified to Tenant which shall plot all easements and
exceptions noted in the American Land Title Association Policy.
22.5. Landlord's Continuing Obligations. The term "Landlord," as used
in this Lease Agreement so far as covenants or obligations on the part of
Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the fee of the Demised Premises, and in the
event of any transfer or transfers or conveyance (with respect to which Landlord
shall provide at least ten
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(10) days advance notice and such notice shall at a minimum include information
regarding the identity and ownership of the prospective grantee or and a copy of
the agreement evidencing Landlord's assignment and the grantee's assumption of
Landlord's obligations hereunder) the then grantor shall be automatically freed
and relieved from and after the date of such transfer or conveyance of all
liability as respects the performance of any covenants or obligations on the
part of Landlord contained in this Lease Agreement thereafter to be performed,
provided that the Letter of Credit and any funds in the hands of such Landlord
or the then grantor at the time of such transfer, in which Tenant has an
interest, shall be turned over to the grantee, and any amount then due and
payable to Tenant by Landlord or the then grantor under any provision of this
Lease Agreement shall be paid to Tenant. Notwithstanding the foregoing, if
Tenant has pending at any time prior to the effective date of such transfer any
action or suit against the transferring "Landlord" hereunder, the foregoing is
not intended and shall not be deemed or construed to prevent or impair the
pendency of such action or suit or the rights of Tenant with respect thereto.
The covenants and obligations contained in this Lease Agreement on the part of
Landlord shall, subject to the aforesaid, be binding on Landlord's successors
and assigns, during and in respect of their respective successive periods of
ownership. Nothing herein contained shall be construed as relieving Landlord of
its obligations under Article 2 of this Lease Agreement, or releasing Landlord
from any obligation to complete the cure of any breach by Landlord during the
period of its ownership of the Demised Premises.
22.6. Estoppel. Landlord and Tenant shall, each without charge at
any time and from time to time, (but not more than four (4) times in a Lease
Year) within ten (10) days after written request by the other party, certify by
written instrument, duly executed, acknowledged and delivered to any mortgagee,
assignee of a mortgagee, proposed mortgagee, or to any purchaser or proposed
purchaser, or to any other person dealing with Landlord, Tenant or the Demised
Premises:
(a) That this Lease Agreement is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect, as modified, and stating the modifications);
(b) The dates to which the Rent or Tenant's Direct Obligations
under Section 6.3(c) have been paid in advance;
(c) Whether or not there are then existing any breaches or
defaults by such party or the other party known by such party under any of the
covenants, conditions, provisions, terms or agreements of this Lease Agreement,
and specifying such breach or default, if any, or any set offs or defenses
against the enforcement of any covenant, condition, provision, term or agreement
of this Lease Agreement upon the part of Landlord or Tenant as the case may be,
to be performed or complied with (and, if so, specifying the same and the steps
being taken to remedy the same); and
(d) Such other factual statements or certificates as the
requesting party may reasonably request.
It is the intention of the parties hereto that any statement delivered pursuant
to this Section 22.6 may be relied upon by any of such parties dealing with
Landlord, Tenant or the Demised Premises.
22.7. Delivery of Corporate Documents. In the event that Tenant is
a corporation, Tenant shall, without charge to Landlord, at any time and
from time to time (but not more than two (2) times in any
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Lease Year) within ten (10) days after written request by Landlord, deliver to
Landlord, in connection with any proposed sale or mortgage of the Demised
Premises, the following instruments and documents:
(a) Certificate of Good Standing in the state of incorporation
of Tenant issued by the appropriate state authority and bearing a current date
(such certificate shall be deemed to bear a current date if issued on any date
after the most recent mandatory reporting date to avoid potential revocation of
corporate charter or authorization to do business); and
(b) A copy of Tenant's certificate of incorporation and any
amendments thereof, as such documents appear in the public records.
22.8. Short Form Lease. Upon not less than ten (10) days prior
written request by either party, the parties hereto agree to execute and deliver
to each other a Short Form Lease, in recordable form, setting forth the follows:
(a) The date of this Lease Agreement;
(b) The parties to this Lease Agreement;
(c) The Term;
(d) The legal description of the Demised Premises;
(e) The Purchase Option; and
(f) Such other matters reasonably requested by either party to
be stated therein.
22.9. Severability. If any covenant, condition, provision, term or
agreement of this Lease Agreement shall, to any extent, be held invalid or
unenforceable, the remaining covenants, conditions, provisions, terms and
agreements of this Lease Agreement shall not be affected thereby, but each
covenant, condition, provision, term or agreement of this Lease Agreement shall
be valid and in force to the fullest extent permitted by law. This Lease
Agreement shall be construed and be enforceable in accordance with the laws of
the state in which the Demised Premise are located.
22.10. Successors and Assigns. The covenants and agreements herein
contained shall bind and inure to the benefit of Landlord, its successors and
assigns, and Tenant and its successors and assigns (provided that Tenant has
complied with the applicable terms of Section 17).
22.11. Captions. The caption of each section of this Lease Agreement
is for convenience and reference only, and in no way defines, limits or
describes the scope or intent of such or of this Lease Agreement.
22.12. Relationship of Parties. This Lease Agreement does not create
the relationship of principal and agent, or of partnership, joint venture, or of
any association or relationship between Landlord and Tenant, the sole
relationship between Landlord and Tenant being that of landlord and tenant.
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22.13. Entire Agreement. All preliminary and contemporaneous
negotiations are merged into and incorporated in this Lease Agreement. This
Lease Agreement together with the Exhibits contains the entire agreement between
the parties and shall not be modified or amended in any manner except by an
instrument in writing executed by the parties hereto.
22.14. No Merger. There shall be no merger of this Lease Agreement or
the leasehold estate created by this Lease Agreement with any other estate or
interest in the Demised Premises by reason of the fact that the same person,
firm, corporation or other entity may acquire, hold or own directly or
indirectly, (i) this Lease Agreement or the leasehold interest created by this
Lease Agreement of any interest therein, and (ii) any such other estate or
interest in the Demised Premises, or any portion thereof. No such merger shall
occur unless and until all persons, firms, corporations or other entities having
an interest (including a security interest) in (1) this Lease Agreement or the
leasehold estate created thereby, and (2) any such other estate or interest in
the Demised Premises, or any portion thereof, shall join in a written instrument
expressly effecting such merger and shall duly record the same conditions,
provisions, terms and agreements set forth in this Lease Agreement.
22.15. No Surrender During Lease Term. No surrender to Landlord of this
Lease Agreement or of the Demised Premises, or any portion thereof, or any
interest therein, prior to the expiration of the term of this Lease Agreement
shall be valid or effective unless agreed to and accepted in writing by Landlord
and consented to in writing by all contract vendors and mortgagees, and no act
or omission by Landlord or any representative or agent of Landlord, other than
such a written acceptance by Landlord consented to by all contract vendors and
the mortgagees, as aforesaid, shall constitute an acceptance of any such
surrender.
22.16. Surrender of Demised Premises. At the expiration of the Term,
Tenant shall surrender the Demised Premises in the same condition as the same
were in upon delivery of possession thereto at the Commencement Date (reasonable
wear and tear excepted and damage by condemnation or fire or other casualty
excepted as provided in this Lease Agreement), and shall surrender all keys to
the Demised Premises to Landlord at the place then fixed for the payment of Base
Rent and shall inform Landlord of all combinations on locks, safes and vaults,
if any. Tenant shall at such time remove all of its property therefrom and all
alterations and improvements placed thereon by Tenant if so requested by
Landlord as provided in Section 20.1 above. Tenant shall repair any damage to
the Demised Premises caused by such removal, and any and all such property not
so removed shall, at Landlord's option, become the exclusive property of
Landlord or be disposed of by Landlord, at Tenant's cost and expense, without
further notice to or demand upon Tenant. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
Lease Agreement. All property of Tenant which Tenant is obligated to remove that
is not removed within thirty (30) days after the last day of the Term shall be
deemed abandoned. Tenant hereby appoints Landlord its agent to remove all
property of Tenant from the Demised Premises upon termination of this Lease
Agreement and to cause its transportation and storage for Tenant's benefit, all
at the sole cost and risk of Tenant and Landlord shall not be liable for damage,
theft, misappropriation or loss thereof and Landlord shall not be liable in any
manner in respect thereto. Tenant shall pay all costs and expenses of such
removal, transportation and storage. Tenant shall reimburse Landlord upon demand
for any expenses incurred by Landlord with respect to removal or storage of
abandoned property and with respect to restoring said Demised Premises to good
order, condition and repair.
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22.17. Holding Over. In the event Tenant remains in possession of the
Demised Premises after expiration of this Lease Agreement, and without the
execution of a new lease, it shall be deemed to be occupying the Demised
Premises as a Tenant from month to month, subject to all the provisions,
conditions and obligations of this Lease Agreement insofar as the same can be
applicable to a month-to-month tenancy, except that the Base Rent shall be
escalated to one hundred twenty-five percent (125%) of the then current Base
Rent for the Demised Premises.
22.18. Survival. All obligations (together with interest or money
obligations at the Maximum Rate of Interest) accruing prior to expiration of the
Term shall survive the expiration or other termination of this Lease Agreement.
22.19. Attorneys' Fees. In the event of any litigation or judicial
action in connection with this Lease Agreement or the enforcement thereof, the
prevailing party in any such arbitration, litigation or judicial action shall be
entitled to recover all costs and expenses of any such judicial action or
litigation (including, but not limited to, actual attorneys' and paralegals'
fees reasonably incurred) from the other party.
22.20. Landlord's Limited Liability. Tenant agrees to look solely to
Landlord's interest in this Lease Agreement, the Demised Premises, and all
profits, rents and sales proceeds arising therefrom for recovery of any monetary
judgment from Landlord, it being agreed that Landlord, so long as it owns the
Demised Premises (and if Landlord is a partnership, its partners, whether
general or limited, and if Landlord is a corporation, its directors, officers or
shareholders), shall not be personally liable for any monetary judgment or
deficiency decree or judgment against Landlord. Notwithstanding the foregoing,
Landlord shall be personally liable for the full and timely performance of its
obligations under this Lease Agreement from the Effective Date until Substantial
Completion, and after the date of Substantial Completion, Landlord shall be
personally liable for the payment of any funds in Landlord's control or
possession to which Tenant has express rights under this Lease Agreement or
which are required to be expended for Tenant's benefit, including without
limitation, insurance proceeds, condemnation awards, and overpayment of
Operating Expenses.
22.21. Broker's Commissions. All negotiations relative to this Lease
Agreement and the Demised Premises have been conducted by and between Landlord
and Tenant without the intervention of any person or other party as agent or
broker except for Cushman & Wakefield of Florida, Inc. and Hogan-Burt-Bishop,
Inc. (collectively, the "Brokers"). Landlord, pursuant to separate agreements or
arrangements with the Brokers, shall be responsible for any and all fees or
commissions due and payable to the Brokers arising out of this Lease Agreement
in any way and Tenant shall have no liability therefor. Except with respect to
the fees and commissions of the Brokers to be paid for by Landlord as aforesaid,
Landlord and Tenant warrant and represent to each other that there are and will
be no broker's commissions or fees payable in connection with this Lease
Agreement or the demise of the Demised Premises by reason of their respective
dealings, negotiations or communications. Landlord and Tenant (except with
respect to the Brokers as aforesaid) shall and do each hereby indemnify, defend
and hold harmless the other from and against the claims, demands, actions and
judgments against any and all brokers, agents and other intermediaries alleging
a commission, fee or other payment to be owing by reason of their respective
dealings, negotiations or communications in connection with this Lease Agreement
or the demise of the Demised Premises.
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22.22. Covenants, Representations and Warranties.
(a) Landlord. Landlord represents and warrants to Tenant,
and covenants and agrees with Tenant, the following:
(i) Landlord is a general partnership, duly
organized, validly existing and in good standing under the laws of the State of
Florida;
(ii) All material information and data furnished
to Tenant by Landlord or its agents with respect to the Demised Premises is
true, correct, complete and not misleading in any material respect;
(iii) Landlord, and the undersigned signatories
executing this Lease Agreement on behalf of Landlord, are duly authorized and
empowered to enter into this Lease Agreement with Tenant;
(b) Tenant. Tenant represents and warrants to Landlord,
and covenants and agrees with Landlord, the following:
(i) Tenant is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
and
(ii) Tenant, and the undersigned signatures
executing this Lease Agreement on behalf of Tenant, are duly authorized and
empowered to enter into this Lease Agreement with Landlord and in connection
with the execution of this Lease, shall deliver to Landlord a certified
corporate resolution of Tenant authorizing Tenant to enter into this Lease.
(iii) All material information and data furnished
to Landlord by Tenant or its agents with respect to Tenant is correct and
complete and not misleading in any material respect.
22.23. Landlord's and Tenant's Permission, Consent or Approval.
Whenever in this Lease Agreement Landlord's or Tenant's permission, consent or
approval is required, then, except to the extent otherwise expressly provided,
such permission, consent or approval shall not be unreasonably withheld, delayed
or conditioned. Furthermore, except as otherwise expressly provided herein, in
the event that Landlord or Tenant fails to respond to any written request for
consent or approval within thirty (30) days after the giving of such request,
then such request shall be deemed to have been approved.
22.24. FORUM AND VENUE FOR LEGAL PROCEEDINGS/WAIVER OF JURY TRIAL.
ANY LEGAL PROCEEDING OF ANY NATURE BROUGHT BY EITHER PARTY AGAINST THE OTHER TO
ENFORCE ANY RIGHT OR OBLIGATION UNDER THIS LEASE AGREEMENT, OR ARISING OUT OF
ANY MATTER PERTAINING TO THIS LEASE AGREEMENT, SHALL EXCLUSIVELY BE SUBMITTED
FOR TRIAL, WITHOUT JURY, BEFORE ANY COURT SITTING IN PINELLAS COUNTY, STATE OF
FLORIDA HAVING SUBJECT MATTER JURISDICTION. THE PARTIES CONSENT AND SUBMIT TO
THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT AND AGREE TO ACCEPT SERVICE OF
PROCESS OUTSIDE THE STATE OF FLORIDA IN ANY MATTER TO BE SUBMITTED TO
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ANY SUCH COURT PURSUANT HERETO, AND EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY
REGARDING ANY SUCH MATTER.
22.25. Arbitration. Any dispute with respect to the current
determination of Market Rent as set forth in Section 1.2(a) shall be determined
by Landlord and Tenant with Landlord and Tenant promptly attempting to agree
upon an appraiser (Only Appraiser) who shall determine the "then current fair
market rental value for the Demised Premises." If Landlord and Tenant do not
agree upon the Only Appraiser within thirty (30) days after such applicable time
period, Landlord shall designate an appraiser (First Appraiser) and Tenant shall
designate an appraiser (Second Appraiser). The First Appraiser and Second
Appraiser designated shall meet within ten (10) days after said thirty (30) day
period, and, if within thirty (30) days after said ten (10) day period has
expired, the First Appraiser and Second Appraiser shall not have agreed upon the
"then current fair market rental value for the Demised Premises", then the First
Appraiser and Second Appraiser shall then appoint a Third Appraiser and if they
are unable to agree upon such Third Appraiser within ten (10) days of the
expiration of said last thirty (30) day period, then the Third Appraiser shall
be selected by a court located in Pinellas County, Florida or if said court
fails or refuses to select, then by the manner provided for in the Florida
Arbitration Code. The Third Appraiser shall be instructed that his appraisal
shall be made in thirty (30) days after his appointment. If any appraiser fails
or refuses or is unable to act or if either Landlord or Tenant fails or refuses
to appoint a required appraiser, then a new appraiser shall be appointed in his
stead which appointment shall be made as herein provided for the appointment of
the Third Appraiser if the First Appraiser or Second Appraiser are unable to
agree. Landlord and Tenant shall each pay its own expenses and, if there is more
than one appraiser, then Landlord and Tenant shall pay the fees and expenses of
the First Appraiser and Second Appraiser respectively. The fees and expenses of
the Third Appraiser or of the Only Appraiser, if there is only one appraiser,
shall be borne equally by Landlord and Tenant. Any appraiser designated to serve
will be a disinterested party, shall be qualified to determine the "then current
fair market rental value for the Demised Premises," shall be a member of
American Institute of Real Estate Appraisers (or any successor association or
body of comparable standing), and shall have been actively engaged in the
appraisal of office real estate in the Tampa area for a period of not less than
five (5) years immediately prior to his appointment. If there is an Only
Appraiser, then the decision of such appraiser shall be final and binding upon
Landlord and Tenant. If there are two appraisers, then the decision of such two
appraisers will be final and binding on Landlord and Tenant. If there are three
appraisers, then the "then current fair market rental for the Demised Premises"
shall be the arithmetic average of the then current fair market rental for the
Demised Premises determined by the two appraisers having the closest appraisal
values and such determination and average and shall be final and binding on
Landlord and Tenant.
22.26. Counterparts; Expiration of Lease Agreement; "Effective Date".
This Lease Agreement may be executed in separate counterparts, each of which
shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument. This Lease Agreement shall be null, void
and of no effect unless it is fully executed by Landlord and Tenant, without
modification (except for mutually agreed upon and initialed changes), and either
(i) at least one fully executed original Lease Agreement has been delivered to
both parties at or before 5:00 p.m. (Eastern Time) on January 14, 1998, or (ii)
at or before 5:00 p.m. (Eastern Time) on January 14, 1998, the parties shall
have exchanged executed counterpart signature pages with transmittal letters
from their respective legal counsels confirming that the Lease Agreement has
been deemed fully executed (facsimile transmission of such signature pages and
letters shall be acceptable), provided that the parties agree to cause at least
one fully executed original Lease Agreement will be delivered to both parties
within two (2) business days
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thereafter. Subject to the immediately preceding sentence, the"Effective Date"
of this Lease Agreement shall mean the later of the two dates set forth below
the respective signatures of Landlord and Tenant.
23. EARLY CANCELLATION OPTION
23.1 Tenant shall have the right and option in Tenant's sole discretion
to terminate this Lease Agreement by providing Landlord with notice of Tenant's
intent to terminate this Lease Agreement (the "Cancellation Notice") at any time
prior to the first day of the seventh (7th) Lease Year, in which event this
Lease Agreement shall be deemed canceled as of the last day of the seventh (7th)
Lease Year (the "Cancellation Effective Date"). In the event Tenant exercises
its right and option to so cancel this Lease Agreement and provided that Tenant
performs all of its material obligations under this Lease Agreement to and
through the Cancellation Effective Date, Tenant shall have no further
obligation, duty or liability to Landlord from and after the Cancellation
Effective Date, except for the "Cancellation Liabilities" (as such term is
hereafter defined in the succeeding subsection (b) and Landlord's right to
receive payment for the Cancellation Liabilities shall be Landlord's sole and
exclusive remedy. If Tenant fails to deliver the Cancellation Notice to Landlord
on or before the first day of the seventh (7th) Lease Year, Tenant's one-time
right to cancel and terminate this Lease Agreement pursuant to this Section
shall expire.
23.2 The term "Cancellation Liabilities" shall mean any (i) Rent or
other monetary obligations of Tenant which have accrued or will accrue prior to
the Cancellation Effective Date but which remain unpaid (excluding therefrom,
however, any loss or damages that might be claimed or asserted by Landlord
pursuant to the provision below, it being the understanding and agreement of
Landlord and Tenant that the giving of the Cancellation Notice in accordance
with the terms and provisions of this Section shall not be deemed to constitute
a "default" or "Event of Default"), plus (ii) Tenant's obligation to pay
Landlord the amount of $1,941,749.00 plus six (6) months of Estimated Operating
Expenses, based on the projected amount for the seventh Lease Year multiplied by
1.03 (the parties acknowledge that such amount is a termination fee and has been
negotiated as liquidated damages to compensate Landlord for the potential
business risks associated with termination of this Lease Agreement as of the
Cancellation Effective Date, including, without limitation, the cost of
reletting the Building, and such termination fee will not be recognized by
Landlord as Rent).
23.3 Tenant's payment of the Cancellation Liabilities to the Landlord
shall be a condition precedent to Tenant's termination of this Lease Agreement
and shall be paid simultaneous with notice of its election to terminate.
24. DECLARATION OF COVENANTS. No earlier than the date of closing of the
Purchase Agreement (as hereinafter defined) and no later than the Commencement
Date, Landlord shall cause the Hotel Owner as defined in the Declaration of
Covenants, Conditions and Restrictions of Bayside Concourse) attached hereto as
Exhibit "F" (the "Declaration") to record the Declaration in the public records
of Pinellas County, Florida, which Declaration shall impose the restrictions
contained therein on the Common Area Parcel, Hotel Parcel and Office Parcel, as
defined in the Declaration on both parcels (subject only to the lien of first
mortgagees and for taxes not yet due and payable). Landlord shall cooperate with
Tenant with respect to the exercise of the rights and remedies of the Owner of
the Office Parcel under the Declaration, provided that such cooperation is at no
cost to Landlord.
25. STREET NAME. Landlord will use diligent efforts to cause the access
road from Roosevelt Boulevard to the Building to be named "Lightwave Drive", and
to cause appropriate road signs containing
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that name to be erected and thereafter maintained during the Term. Landlord
represents and warrants that Hotel Owner as defined in the Declaration has
agreed to cooperate with such naming of the street. Prior to Lease Agreement
execution, Landlord shall deliver to Tenant the written agreement of Hotel
Owner, as defined in the Declaration, to cooperate in the naming of the street.
26. PURCHASE OPTION. Landlord hereby grants to Tenant an exclusive option
to purchase the Demised Premises (the "Purchase Option"), subject to the terms
and conditions of this Section. Tenant may exercise the Purchase Option only by
giving Landlord written notice of such exercise, delivered to Landlord in
accordance with the notice provisions of this Lease Agreement (a "Purchase
Option Notice") and by delivery of the $300,000.00 Deposit in accordance with
the Terms of Sale and Purchase (as defined below). Tenant shall have the right
to exercise the Purchase Option during the period beginning on the Effective
Date of this Lease Agreement and ending on the date that is twelve (12) months
after the Commencement Date (the "Option Term"). If Tenant shall have failed to
deliver the Purchase Option Notice to Landlord before expiration of the Option
Term, the Purchase Option shall automatically expire and terminate. EXHIBIT "G"
attached hereto and made a part hereof sets forth the Terms of Sale and Purchase
(the "Terms of Sale and Purchase"). If Tenant properly exercises the Purchase
Option in accordance with this Section, automatically and immediately upon
delivery of the Purchase Option Notice to Landlord (and without the requirement
that the parties execute any additional documents or take any additional
actions) a fully enforceable and legally binding contract containing the terms
of Sale and Purchase shall be deemed to have been formed. Landlord and Tenant
acknowledge that the Purchase Option has been granted and accepted as a material
part of the consideration for entering into this Lease Agreement and that such
consideration has been received by both parties and is adequate for all
purposes. Unless expired or terminated, any purchaser of the Demised Premises
shall in writing delivered to Tenant fully recognize Tenant's rights under the
Purchase Option. Landlord hereby consents to Tenant assigning the Purchase
Option only to a third party purchaser, provided that this limited right of
assignment in no way affects the restrictions on assignment set forth in Article
17 as to the remaining rights and obligations under this Lease Agreement.
27. TENANT'S LETTER OF CREDIT. Within thirty (30) days after execution of
the Lease Agreement and as security for the full and faithful performance by
Tenant of each and every term, provision, covenant and condition of this Lease
Agreement, Tenant shall deliver to Landlord an irrevocable letter of credit
("Letter of Credit") issued by NationsBank, First Union or a money center bank
with a Standard & Poor's rating of not less than "A" in the original stated
amount of $2,500,000. If Tenant fails to provide a replacement Letter of Credit
to Landlord thirty (30) days prior to the expiration date of the Letter of
Credit held by Landlord, Landlord may immediately and without notice draw the
entire amount outstanding under the Letter of Credit. Provided that Tenant is
not otherwise in breach of any covenants of this Lease and Landlord draws under
the Letter of Credit for such failure to replace the Letter of Credit, Landlord
agrees to deposit such amount (the "Deposit") into an interest bearing account
to secure Tenant's obligations under this Lease.
Landlord and Tenant agree that Tenant shall have the right to
deliver to Landlord a replacement Letter of Credit for the next Lease Year in
the amount and pursuant to the schedule set forth below:
<TABLE>
<S> <C>
Second Lease Year: $2,375,000
Third Lease Year: $2,250,000
Fourth Lease Year: $2,125,000
Fifth Lease Year: $2,000,000
Sixth Lease Year: $1,750,000
Seventh Lease Year: $1,500,000
Eighth Lease Year: $1,250,000
Ninth Lease Year: $1,000,000
Tenth Lease Year: $ 870,000
</TABLE>
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If an Event of Default occurs under this Lease, the Letter of Credit
(or the Deposit) may be drawn upon by Landlord upon presentation of a sight
draft, by a whole or partial draw, for the payment of amounts due under the
Lease. If the Letter of Credit shall be drawn by Landlord as provided herein,
Tenant shall promptly, in each such instance, on written demand therefor by
Landlord, furnish to Landlord, an additional Letter of Credit in the form
provided in the following paragraph or pay to Landlord such additional sums
which when added to the remaining balance of the existing Letter of Credit (or
Deposit) equals the amount required under the provisions of this Section 27. If
for any reason a Letter of Credit matures and the Landlord fails or neglects to
make a prior draw upon such expiring Letter of Credit, Tenant shall be obligated
to furnish the amount of the Letter of Credit required under the provisions of
this Section 27 in cash or in another Letter of Credit as herein provided.
Unless returned to Tenant in accordance with the following paragraph, the Letter
of Credit (or the Deposit) shall be returned to Tenant after the following: (a)
the time fixed as the expiration of the Initial Term of this Lease; (b) the
removal of Tenant from the Premises; (c) the surrender of the Premises by Tenant
to Landlord in accordance with this Lease; and (d) final determination of all
amounts payable by Tenant hereunder and payment of same. In the event of any
transfer of the Demised Premises by Landlord, Tenant agrees to cause the Letter
of Credit, with only the customary costs of transfer payable by the Landlord, to
be amended to provide for Landlord's transferee to be named as the new
beneficiary under the Letter of Credit.
The Letter of Credit shall otherwise be in substantially the form
attached hereto as EXHIBIT "H". At such time as Tenant achieves a Standard &
Poor's credit rating of BBB- or better, or a rating from an agency acceptable to
both Landlord and Tenant , Landlord shall return the Letter of Credit to Tenant
for cancellation, and Tenant shall deliver to Landlord a security deposit equal
to the then current Base Rent for one month. Additionally, if Tenant meets the
following requirements as of a date and for one (1) full year then ended, as
evidenced by audited financial statements prepared by a "Big Six" accounting
firm, Landlord shall return the Letter of Credit to Tenant for cancellation (all
calculations to be made in accordance with generally accepted accounting
principles applied on a consistent basis):
(a) Tangible Net Worth equal to or greater than $100 million.
"Tangible Net Worth" means the aggregate book value of all assets of Tenant less
intangible assets, treasury stock, reserves for depreciation, depletion,
obsolescence, amortization, and all other reserves or appropriations of retained
earnings, and less total liabilities of Tenant.
(b) Cash Flow Coverage Ratio equal to or great than 10:1.
"Cash Flow Coverage Ratio" means the ratio of EBITDA (Earnings before interest
and taxes, plus depreciation and amortization) to the annual rent for the
preceding fiscal year.
(c) Borrowed Funds to Capitalization Ratio of less than or
equal to 35%. "Borrowed Funds" means all long and short term debt plus capital
lease obligations, but excluding ordinary trade payable and accrued expenses.
"Capitalization" means total liabilities of Tenant plus stockholder's equity.
64
<PAGE> 70
(d) Total Borrowed Funds to Net Worth Ratio of less than or
equal to 55%. "Borrowed Funds" is defined as above, and "Net Worth" is defined
as total stockholder's equity.
The Letter of Credit shall be in the form of a customary irrevocable
commercial Letter of Credit. The Letter of Credit shall (i) name Landlord as
Beneficiary; (ii) have an initial expiration date no earlier than the last day
of the First Lease Year; (iii) provide that it may be drawn upon by the Tampa
office of the issuing financial institution at an address located in the Tampa,
Florida, metropolitan area upon presentation of the original of the Letter of
Credit together with a written statement of Landlord (or a representative of
Landlord) containing the following text: Tenant is in default in the amount of
$________ under that certain Lease Agreement bearing an effective date January
9, 1998, by and between the Applicant as Tenant and Beneficiary as Landlord (the
"Lease Agreement") or Tenant has failed to renew the Letter of Credit within the
period set forth in Section 27 of the Lease Agreement.
The Letter of Credit shall also contain provisions in substantially the
following form:
This Letter of Credit will be duly honored by us (the issuer) at sight
upon delivery of the applicable statement set forth above without inquiry as to
the accuracy of such statement and regardless of whether Applicant disputes the
contents or accuracy of such statement. Partial drawings are permitted.
If Tenant fails to provide Landlord the above-described Letter of
Credit within thirty (30) days of the execution of this Lease, this Lease shall
automatically and without notice terminate and Tenant shall be liable to
Landlord for any and all actual out-of-pocket costs incurred by Landlord in
connection with this Lease, including, without limitation, any deposits and
costs incurred in connection with the Purchase and Sale Agreement referenced in
Section 28 of this Lease and any legal fees, design fees and other costs
incurred in connection with this Lease.
28. PURCHASE AND SALE AGREEMENT The Land will be purchased from
Haydon-Rubin Development, Inc. (the "Seller") pursuant to a Purchase and Sale
Agreement by and between the Seller and Landlord (the "Purchase Agreement"). The
Land will be purchased pursuant to the Purchase Agreement as soon as (i)
Landlord receives a Phase II Environmental Study reflecting that the Land is
free from any and all environmental problems or violations, (ii) Landlord
receives geotechnical studies demonstrating that the Landlord's Work can be
constructed within the budget contemplated by Landlord, (iii) Seller delivers
the finished site pad for the Building, Garage and Other Improvements, (iv)
perpetual access is provided to Roosevelt Boulevard, (v) Landlord receives and
approves the plans and specifications for Seller's construction of
infrastructure (vi) Seller obtains the permits required to construct the
Off-Site Improvements and obtain the approval of the master site plan by
Pinellas County, Florida and the Southwest Florida Water Management District and
(vii) all title insurance, survey and access issues have been resolved to
Landlord's satisfaction. Items (i) through (vii) are hereinafter referred to as
the "Contingencies."
In the event that Landlord terminates the Purchase Agreement because
Seller is unable to satisfy the Contingencies on or before January 10, 1998,
this Lease shall automatically terminate and be of no further force and effect
and Landlord shall only be liable to Tenant for its actual out-of-pocket costs
for legal fees and design fees, such fees not to exceed $200,000.00.
In the event that Landlord terminates the Purchase Agreement because
Seller is unable to satisfy the Contingencies on or before March 31, 1998, this
Lease shall automatically terminate and Landlord
65
<PAGE> 71
shall be liable to Tenant for the actual out-of-pocket costs incurred by Tenant
in connection with this Lease Agreement and reletting other space, such damages
not to exceed the sum of $550,000.00.
In the event that Seller satisfies the Contingencies on or before March
31, 1998, but Landlord fails to close under the Purchase Agreement for any
reason, Tenant shall be entitled to recover from Landlord Tenant's actual
damages resulting from such failure (including, without limitation, all costs
associated with Tenant's holdover in its current premises, Tenant's relocation
and upfit of temporary space, and Tenant's acquisition of substitute premises
and subject to Tenant's good faith duty to mitigate such damages but in no event
will Tenant be obligated to take substitute premises of a class or condition
less than the Demised Premises), such damages not to exceed $1,000,000.00.
29. LANDLORD'S LETTER OF CREDIT. Within thirty (30) days after execution of
the Lease Agreement and as security for the full and faithful performance by
Landlord of each and every term, provision, covenant and condition of Section
2.10, Section 2.11 and Section 28 of this Lease Agreement, Landlord shall
deliver to Tenant an irrevocable letter of credit issued by Sumitomo Bank Ltd.
Chicago Branch or money center bank with a Standard and Poor's rating of not
less than "A" in the original stated amount of $1,000,000.00 to secure
Landlord's obligations under Section 2.10, Section 2.11 and Section 28 of this
Lease Agreement.
The Letter of Credit shall be in the form of a customary irrevocable
commercial Letter of Credit. The Letter of Credit shall (i) name Tenant as
beneficiary, (ii) have an initial expiration date no later than twelve months
after issuance, (iii) provide that it may be drawn upon by the Chicago office of
the issuing financial institution at an address located in the Chicago, Illinois
metropolitan area upon presentation of the original Letter of Credit together
with the written statement of Tenant (or representative of Tenant) containing
the following text: Landlord is in default in the amount of $_________ under
that certain Lease Agreement bearing an effective date of January 9, 1998 by and
between the Landlord and the Beneficiary as Tenant. The Letter of Credit shall
also contain provisions in substantially the following form: This Letter of
Credit will be honored by (the issuer) at sight upon delivery of applicable
statements set forth above. Partial drawings are permitted. The Letter of Credit
shall otherwise be in substantially the form attached as Exhibit "I". The Letter
of Credit shall be returned to Landlord upon the Commencement Date to the extent
not otherwise drawn upon by Tenant under this Section 29.
If Landlord fails to provide Tenant the above described Letter of
Credit within thirty (30) days of execution of this Lease, this Lease shall
automatically and without notice terminate and Landlord shall be liable to
Tenant for any and all actual out-of-pocket costs incurred by Tenant in
connection with this Lease, including, without limitation, any legal fees,
design fees, or other costs incurred in connection with this Lease.
30. AGREEMENT TO PROVIDE LANDLORD'S LETTER OF CREDIT. Landlord hereby
agrees to cause ORIX Real Estate Equities, Inc. to issue a letter to Tenant
contemporaneous with the execution of this Lease, which guarantees to Tenant the
delivery of the Landlord's Letter of Credit.
IN WITNESS WHEREOF, intending to be legally bound and with the specific
intent that this Lease Agreement constitute an instrument under seal, each of
the parties hereto has caused this Lease Agreement to be duly executed as of the
Effective Date.
66
<PAGE> 72
[Signature Pages Follow]
67
<PAGE> 73
SIGNATURE PAGE OF LANDLORD
TO LEASE AGREEMENT
LANDLORD:
ORIX HOGAN - BURT PINELLAS VENTURE,
a Florida general partnership
By its sole general partners:
By: Hogan - Burt DOT, Inc., a
Florida corporation
By:
- --------------------------- --------------------------
Name: Name:
-------------------
Title:
- --------------------------- ------------------
Name:
(corporate seal)
Dated: , 1998
---------------
By: ORIX Pinellas, Inc., an Illinois
corporation
By:
- --------------------------- --------------------------
Name: Name:
-------------------
Title:
- --------------------------- ------------------
Name:
(corporate seal)
Dated: , 1998
---------------
68
<PAGE> 74
SIGNATURE PAGE OF TENANT
TO LEASE AGREEMENT
TENANT:
DIGITAL LIGHTWAVE, INC.
By: (SEAL)
- --------------------------------- ---------------------------------
Name: Name:
---------------------------- ---------------------------------
Title:
--------------------------------
- ---------------------------------
Name: Date signed by Tenant:
---------------------------- --------------------
69
<PAGE> 75
EXHIBIT "A"
LAND
<PAGE> 76
EXHIBIT "B"
PERMITTED ENCUMBRANCES
<PAGE> 77
EXHIBIT "C"
CONCEPTUAL PLANS AND SPECIFICATIONS
<PAGE> 78
EXHIBIT "D"
LANDLORD'S WORK AND TENANT LANDLORD'S WORK
AND TENANT IMPROVEMENTS SCHEDULE
<PAGE> 79
EXHIBIT "E"
LANDLORD'S WORK AND TENANT IMPROVEMENTS COST SCHEDULE
<PAGE> 80
EXHIBIT "F"
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS OF
BAYSIDE CONCOURSE
<PAGE> 81
EXHIBIT "G"
TERMS OF SALE AND PURCHASE
FOR PURCHASE OPTION
I. Agreement. The terms set forth in this Exhibit G shall be
valid and effective only if Tenant exercises its Option in accordance with
Section 26 of the attached Lease Agreement. Upon such exercise, Landlord agrees
to sell, and Tenant agrees to purchase, the Demised Premises in accordance with,
and subject to, the terms and conditions set forth herein. Unless otherwise
defined in this Exhibit G all defined terms shall have the same meaning as set
forth in the attached Lease Agreement. Unless references made to another
document, all section number references shall mean and refer to the
corresponding section contained in the attached Lease Agreement.
A. Deposit. Contemporaneously with delivery of the Purchase
Option Notice to Landlord, Tenant shall deliver a deposit in the amount
of $300,000.00 (the "Deposit") in accordance with the following
provisions. Tenant shall deliver the Deposit in the form of cash, wire
transfer or check (a "Cash Deposit") deposited with a third party
escrow agent (i.e., not Landlord or an affiliate of Tenant). The
Deposit shall be held, applied and disbursed, as applicable, in
accordance with the terms of this Exhibit G. The Tenant shall have the
right, at its election, either to have the Cash Deposit applied against
the Purchase Price (as hereinafter defined) or to instruct the escrow
agent to return the Cash Deposit to Tenant without set off against the
Purchase Price.
II. Purchase Price. The total purchase price for the Demised
Premises shall be $15,436,963.00.
III. Property. As used in this Exhibit G, the term "Property" shall
mean and be deemed to include (i) the Demised Premises, including appurtenances,
rights, privileges and easements benefitting or pertaining to the Property, (ii)
the Landlord's Work and Tenant Improvements, including all fixtures, furniture,
equipment, vehicles, inventory, supplies, tools and other personal property used
in connection with the operation of, or located at the Property, other than
those items already owned by Tenant, (iii) all of Landlord's rights in or to
condemnation awards and/or insurance proceeds to the extent not applied to
repair or restoration, (iv) all other tangible and intangible property or rights
owned by Landlord or in which Landlord has an interest in connection with its
ownership and operation of the Property and rights described in preceding
clauses (v), (ii), and (iii), including all of Landlord's right, title and
interest in and to any easements, Landlord's rights under the declaration that
are incident to the ownership of the Property and any and all warranties,
guaranties, claims, causes of actions, deposits, escrows, refunds, licenses
permits or certificates (including certificates of occupancy) relating to the
Property.
<PAGE> 82
IV. Representations, Warranties and Covenants.
A. By Landlord. As of the date of Purchaser's Option
Notice and the Closing Date (as hereinafter defined), Landlord
represents and warrants to Tenant and covenants and agrees with Tenant
the following:
1. All of the covenants, representations,
warranties and provisions contained in Section 22.22(a)
incorporated herein by this reference, remain true and correct
in all material respects.
2. Landlord is not a foreign person under
Section 1445 of the Internal Revenue Code of 1986, as amended,
and Landlord shall deliver to Tenant a customary non-foreign
person certification at Closing.
3. Except for the documents evidencing the
Permitted Encumbrances and except for written agreement that
are capable of being terminated upon no more than thirty (30)
days prior notice without payment (including payment of a
termination fee), liability or expense to Tenant, true and
complete copies of which shall be delivered to the Tenant (the
"Terminable Agreements"), there are no agreements or
understandings (written or unwritten) that would materially
affect ownership, use, operation, sale, lease or other
disposition of the Property. Upon written request from Tenant:
Landlord shall immediately cause the Terminable Agreements
identified in Tenant's request to be terminated; Landlord
shall pay or satisfy all obligations (including, without
limitation, any termination fees) and liabilities arising out
of such termination(s); Landlord shall provide Tenant with
written evidence that such agreements have been terminated and
that the related obligations and liabilities have been
satisfied.
4. Landlord has not received (i) any notices of
violation (or alleged violation) of Laws, any Permitted
Encumbrance, or any other agreement relating to the Property
that would materially affect ownership, use, operation, sale,
lease or other disposition of the Property, (ii) any notice of
condemnation or threatened condemnation of all or any portion
of the Property and/or (iii) any notice of pending or
threatened litigation with respect to all or any portion of
the Property.
5. Landlord covenants to continue to maintain
the Property and comply with all covenants and provisions
contained in the Lease Agreement until Closing has been
consummated and Landlord further covenants not to encumber or
in any way alter, impair or affect title the Property without
Tenant's prior written consent and not to take any action that
would impair, hinder or delay consummation of the transactions
described in Exhibit G no later than thirty (30) days after
receipt of Purchaser's Option Notice, Landlord shall cause
First American Title Insurance Corporation by and through its
authorized agent, Hill, Ward & Henderson, P.A. ("Title Agent")
to issue a commitment to issue an ALTA Owner's Title Insurance
Policy (dated no earlier than the date of Purchaser's Option
Notice and containing only the Permitted Encumbrances as
exception) to
<PAGE> 83
be delivered to Tenant. The title commitment shall be "marked
up" to delete the gap in coverage and insure title (without
additional exceptions) and deliver to Tenant at Closing.
6. No later than five (5) business days after
receipt of Purchaser's Option Notice, Landlord shall deliver
to Tenant true and complete copies of any and all surveys
(including boundary and "as built" surveys), plats, plans
(including architectural plans and drawings), soil tests and
any other documents or information in Landlord's possession or
control, excluding only those documents and information that
had been provided to Tenant as of the Effective Date of the
Lease Agreement (provided, however, that Landlord shall have
the obligation under this provision to deliver to Tenant any
subsequent amendments or superseded versions of such
previously delivered documents and information).
B. By Tenant. As of the date of Purchaser's Option
Notice and the Closing Date, Tenant represents and warrants to the
Landlord and covenants and agrees with Landlord the following:
1. All of the covenants, representations,
warranties and provisions contained in Section 22.22(b), are
incorporated herein by this reference and remain true and
correct in all material respects.
2. Tenant covenants to continue to comply with
all covenants and provisions contained in the Lease Agreement
until Closing, including, without limitation, payment of Rent
and Additional Rent.
V. Conditions Precedent to Closing. As of the date of Closing,
each of the following shall be satisfied (or at Tenant's sole option, waived in
writing by Tenant) as condition precedent to Tenant's obligation to complete
Closing (individually, a "Closing Condition"; collectively, "Closing
Conditions"): (i) all of the provisions of Section 4.A of this Exhibit G shall
remain true and correct (without exception or qualification) or shall have been
satisfied as context requires, and (ii) Landlord shall have delivered to the
Title Agent who will conduct Closing all documents and information required to
be delivered in connection with Closing. If, as of the Closing Date, any Closing
Conditions shall not have been satisfied, Tenant shall have the option, at its
election, to (a) waive such unsatisfied Closing Condition and proceed with
Closing or (b) terminate the contract evidenced by this Exhibit G and receive a
full refund of the Deposit, or (c) pursue its remedies at law for Landlord's
breach of any representation or warranty set forth in Section 4.A above or
Landlord's failure to perform its obligations under clause (ii) of the preceding
sentence.
VI. Closing. The term "Closing" shall mean consummation of the
transactions described in this Exhibit G and the term "Closing Date" shall mean
the date on which Closing occurs.
A. Closing Date. The Closing shall occur (i) no earlier
than twenty (20) days after receipt of Purchaser's Option Notice (the
"Inside Closing Date"); (ii) no later than thirty (30) days after
receipt of Purchaser's Option Notice (the "Outside Closing Date");
<PAGE> 84
and (iii) within the time period established by preceding clauses (i)
and (ii), the Closing Date shall be a date designated by Tenant upon no
less than five (5) business days prior written notice to Landlord. Time
is of the essence with respect to all terms and conditions of the
contract evidenced by this Exhibit G.
B. Closing Delivery.
1. By Landlord. At Closing, Landlord shall take
each of the following actions:
a. Execute, acknowledge and deliver to
Tenant a good and sufficient Special Warranty Deed
conveying to Tenant fee simple title to the Property
subject only to the Permitted Encumbrances;
b. Deliver to Tenant a fully executed
and updated (dated no earlier than the date of
Tenant's Option Notice) Association Certificate
reasonably satisfactory to Tenant;
c. Assign, in writing, transfer and
deliver to Tenant all licenses permits and
certificates in the business and other licenses and
permits in the possession or control of Landlord
related to the Property;
d. Execute, acknowledge and deliver to
Tenant a Bill of Sale and Assignment assigning,
transferring and conveying to Tenant all of
Landlord's right, title and interest in and to all
property that has not been conveyed pursuant to
another closing delivery described above. With
respect to all documents, assigning, transferring or
conveying the Property to Tenant (excluding only the
deed which shall be in the form described in Section
6.2.1 above), all such assignments, transfers and
conveyances shall be made with special warranty of
title free and clear of all liens and encumbrances in
"as is, where is" condition;
e. Deliver to Tenant all documents,
records, files, books and records pertaining to the
ownership, use or operation of the Property not
therefore delivered; and
f. Execute, acknowledge and deliver as
appropriate, all additional documents which may be
necessary or appropriate to carry out the provisions
of this Agreement including, without limitation, a
settlement statement and any construction lien
affidavits or other items necessary to permit Tenant
to obtain the specified title insurance.
2. By Tenant. At Closing, the Tenant shall take
each of the following actions:
<PAGE> 85
a. Deliver to the Title Agent
conducting Closing funds sufficient to complete
Closing in accordance with this Exhibit (i.e., the
Purchase Price, subject to any adjustments required
by this Agreement); and
b. Execute, acknowledge and deliver as
appropriate, all additional documents which may be
necessary or appropriate to carry out the provisions
of the contract evidenced by this Exhibit G
including, without limitation, a settlement
statement.
C. Location of Closing. Closing shall be conducted on
the Closing Date in a location mutually agreeable to Landlord and
Tenant, or in the absence of mutual agreement, in the offices of Hill,
Ward & Henderson, P.A.
D. Closing Cost Adjustments and Prorations. Landlord
shall pay for documentary stamp taxes on the deed and owner's title
insurance for the benefit of Tenant and Tenant shall pay for the
recording fee for the deed. The Rent (including, without limitation,
Base Rent and Operating Expenses) shall be adjusted as of the day
immediately preceding the Closing Date. Each party shall pay its own
attorneys' fees.
VII. Default. If Landlord defaults under the terms of the contract
evidenced by this Exhibit G, Tenant shall be entitled to exercise all of its
rights and remedies under Florida law. If Tenant shall fail to perform its
obligation under this contract evidenced by this Exhibit G to make full Closing
in accordance with the terms hereof, Landlord shall be entitled to terminate
this contract by written notice to Tenant and retain the Deposit as its sole
remedy in which event the Lease Agreement shall remain in full force and effect.
<PAGE> 86
EXHIBIT "H"
FORM OF TENANT'S LETTER OF CREDIT
<PAGE> 87
EXHIBIT "I"
FORM OF LANDLORD'S LETTER OF CREDIT
<PAGE> 88
EXHIBIT A
LEGAL DESCRIPTION: Bayside Concourse Office Site
A portion of lots 11 and 12, in the Southeast 1/4 of Section 33, Township 29
South, Range 16 East, PINELLAS GROVES, according to the plat thereof, recorded
in Plat Book 1, Page 55, less and except that part lying within 50 feet Westerly
of line as described in the Board of County Commissioners Minute book 6 pages
148 and 149, and being more particularly described as follows:
Commence at the Southeast corner of the Northwest 1/4 of the Southeast 1/4 of
Section 33, Township 29 South, Range 16 East, Pinellas County, Florida; thence
N89 degrees 32'51"W, along the South Boundary of the Northwest 1/4 of the
Southeast 1/4 of said Section 33, for 50.59 feet; thence leaving said line N00
degrees 27'09"E, for 15.00 feet; thence N01 degrees 40'33"W, for 406.58 feet; to
the POINT OF BEGINNING; thence N88 degrees 19'27"W, for 124.55 feet to the point
of curvature of a curve concave to the Northeast; thence Westerly along the arc
of said curve, and having a radius of 15.00 feet, a central angle of 61 degrees
43'35", an arc length of 16.16 feet and a chord bearing N60 degrees 48'46"W, for
15.39 feet to the point of reverse curvature with a curve concave to the South;
thence Northwesterly along the arc of said curve, having a radius of 42.00 feet,
a central angle of 123 degrees 27'09", an arc length of 90.50 feet and a chord
bearing 588 degrees 19' 27"W, for 73.98 feet to the point of curvature with a
curve concave to the Northwest; thence Southwesterly along the arc of said
curve, having a radius of 15.00 feet, a central angle of 61 degrees 43'35", an
arc length of 16.16 feet and a chord bearing S57 degrees 27'40"W, for 15.39 feet
to the point of tangency; thence S88 degrees 19'27"W, for 66.21 feet; thence N74
degrees 28'10"W, for 18.62 feet; thence N89 degrees 32'51"W, for 303.91 feet;
thence N01 degrees 36'47"W, for 273.67 feet; thence S89 degrees 43'59"E, for
612.70 feet to the existing Westerly right of way line of 49th Street per
C.C.M.B. 6, pages 148 and 149, Public Records of Pinellas County, Florida;
thence S01 degrees 40'33"E along a line 50.00 feet West of and parallel with the
East line of the Northwest 1/4 of the Southeast 1/4 of said Section 33, also
being the said existing Westerly right of way line, for 269.69 feet; to the
POINT OF BEGINNING; and containing 3.80 acres, more or less.
TOGETHER with the easements appurtenant thereto created under the Declaration
of Covenants, Conditions and Restrictions of Bayside Concourse attached to this
Lease as Exhibit "F".
(CROSS-HATCHED ON
EXHIBIT A-1 ATTACHED HERETO)
LEGAL DESCRIPTION TO BE VERIFIED BY SURVEY
<PAGE> 89
EXHIBIT A-1
[FLOORPLAN]
<PAGE> 90
EXHIBIT B
PERMITTED ENCUMBRANCES
1. Ad valorem taxes for the year 1998 and subsequent years;
2. A ten foot (10') wide drainage easement to run along the
western boundary of the Property, pursuant to an instrument to be recorded in
the Public Records of Pinellas County, Florida, prior to Closing, such
instrument to be in form and substance acceptable to Buyer in its reasonable
discretion, or pursuant to the Plat;
3. The approximately seven foot (7') encroachment of a sewer
line along the west boundary of the Property;
4. That certain Development Agreement dated April 22, 1997 (the
"Development Agreement"), by and between Seller and Pinellas County, and any
deed restrictions which are required to be recorded pursuant to the terms and
conditions thereof;
5. Avigation Easement to be executed for the benefit of Pinellas
County, Florida, in substantially the form attached hereto as Exhibit B-1;
6. License Agreement to be executed by Pinellas County, Florida,
in substantially the form attached hereto as Exhibit B-2; and
7. Easement Agreement in favor of Florida Power & Light recorded
in O.R. 6443, at Page 631, of the Public Records of Pinellas County
(Haydon-Rubin Development, Inc. has agreed to obtain the release of this
instrument by the Grantee pursuant to the Purchase and Sale Agreement for the
Property).
<PAGE> 91
EXHIBIT B-1
AVIGATION EASEMENT
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
THIS INDENTURE, dated this _____ day of ______________, 199_, by and
between _______________________________________, hereinafter called GRANTOR,
and PINELLAS COUNTY, a political subdivision of the State of Florida,
hereinafter called GRANTEE.
WHEREAS, the GRANTOR is the owner of certain premises, situate, lying
and being in Pinellas County, Florida, as hereinafter described; and
WHEREAS, the GRANTEE, is the owner and operator of the St. Petersburg-
Clearwater International Airport located in Pinellas County, Florida.
NOW, THEREFORE, is consideration of Ten Dollars ($10.00) and other
good and valuable consideration paid by the GRANTEE to the GRANTOR, the receipt
of which is hereby acknowledged, the GRANTOR does hereby grant and convey unto
the GRANTEE, its successors and assigns, an easement and right-of-way for the
over-flight of aircraft in and through the airspace above the following
described property located within Pinellas County, to wit:
(Property Description)
-1-
<PAGE> 92
The GRANTOR hereby gives and grants to the GRANTEE, its successors and
assigns, and to all persons lawfully using said airport, the right and easement
to use the airspace above the GRANTOR'S property and to create noise normally
associated with aircraft operation and for avigation purposes without liability
for any necessary, convenient or operational incident, the effects thereof
whether as the same presently or in the future exist, but said right or
easement hereby granted is to be executed only in a manner reasonably or
substantially consistent with the safe and proper flying procedures as
promulgated by any regulatory agency of the government of the United States of
the State of Florida.
The rights and easements hereby granted and conveyed, and the
covenants hereby entered into, shall not be construed to deprive the GRANTOR of
any claims for injury or damages against any person for negligence whereby
injury or damages against any person for negligence whereby injury or damages
is caused by actual or direct physical contact, without intervening media, but
shall operate and constitute a full, complete and total release, quit claim and
discharge of the GRANTEE, its successors and assigns, its agents and employees,
and all persons lawfully using said airport and the owners and operations of
aircraft lawfully using the airspace hereby conveyed, from all claims and
demands whatever, not solely and proximately resulting from negligent actual or
direct physical contact, it being the intent of the GRANTOR herein to waive its
right to suit for nuisance and noise incident to the operation of the St.
Petersburg-Clearwater International Airport by the GRANTEE herein.
All rights, easements, releases, benefits and estates granted
hereunder shall be covenants running with the land as is hereinabove described.
In the event the GRANTEE abandons the operation of said airport, all
rights herein granted shall cease and revert to the GRANTOR, his successors or
assigns.
-2-
<PAGE> 93
IN WITNESS WHEREOF, said developer in pursuance of his due and legal
action, has executed these presents, as of the date first above written.
----------------------------------
OWNER
WITNESSETH: WITNESSETH:
- ---------------------------------- ----------------------------------
STATE OF FLORIDA )
)
COUNTY OF )
BEFORE ME personally appeared _______________________________, as
______________________(title) of _________________________, to me well known
and known to me to be the person described in and who executed the foregoing
instrument and acknowledged to and before me that he/she executed said
instrument in the capacity and for the purpose expressed.
WITNESS my hand and official seal this _______ day of ____________
199_.
----------------------------------
Notary Public
My Commission Expires:
<PAGE> 94
EXHIBIT B-2
THIS LICENSE AGREEMENT ("License") is made on ___________________,
1997, between PINELLAS COUNTY FLORIDA, a political subdivision of the State of
Florida ("County") and HAYDON-RUBIN DEVELOPMENT, INC., or assigns, a Florida
corporation ("Licensee").
WITNESSETH:
1. PREMISES
County hereby grants permission to Licensee to use the real property
described on Exhibit "A" attached and incorporated herein by reference
("Property"), as hereinafter set forth.
2. USES
County hereby grants permission to Licensee to use the Property for
the purposes of (i) erecting, operating, and maintaining a sign identifying
Licensee's office and/or hotel development on the real property described on
Exhibit "B" attached hereto and incorporated herein by reference, which sign
shall be as described on Exhibit "C" attached hereto and incorporated herein by
reference, and (ii) installing, maintaining, irrigating, and replacing
landscaping and lighting, and for no other purposes without written consent of
the County. Licensee will be solely responsible for maintenance of the
Property. Licensee must be in conformance with applicable laws and ordinances
including all sign permits required by Pinellas County ordinances and
regulations for the improvements and uses thereon. Licensee may modify the
drainage facilities on the Property so long as such modifications conform to
the permits issued therefor.
<PAGE> 95
3. FEE
Licensee will pay an annual fee of $1.00 for the first year due and
payable within thirty days from the date of this License. The fee after the
original year will be due on the anniversary date. The anniversary date will be
the day and month this License is signed by all parties. In addition, Licensee
shall assume all of County's maintenance obligations with respect to the
Property.
4. NOTICES
The annual fee will be made payable to Pinellas County and sent to:
Department of Public Works
440 Court Street
Clearwater FL 33756
All notices of correspondence to the County shall be sent to:
Right of Way Administration
Public Works--Engineering
440 Court Street
Clearwater FL 33756
All notices or correspondence to Licensee shall be sent to:
Rogers Haydon, President
Haydon-Rubin Development, Inc.
15201 Roosevelt Boulevard
Suite 112
Clearwater, FL 34620
5. TERM OF LICENSE
This License shall be perpetual, provided however, should County need
any or all of the Property for a bona fide public purpose, then this License
shall be terminated as to the portion of the Property so needed no later than
ninety (90) days after written notice of such need is given to Licensee. Upon
receipt of any such notice, Licensee shall promptly remove the sign, and, at
County's option, the landscape improvements from the portion of
2
<PAGE> 96
the Property required by the County and relocate the sign and, at County's
option, the landscaping, onto the remaining portion of the Property.
6. TERMINATION OF LICENSE
This License may be terminated upon six (6) months written notice by
Licensee to County or its successors in interest, as applicable, by the
Licensee. Upon termination Licensee shall remove all improvements or any part
thereof at the option of the County.
7. UTILITIES
Licensee will be responsible for the installation and payment of all
utilities on the Property.
8. INDEMNIFICATION
Licensee covenants and agrees that it will indemnify and hold harmless
County and all of County's officers, employees, contractors and subcontractors
from any claim, loss, damage, cost, charge or expense arising out of any act,
action, neglect or omission by Licensee. Its officers, employees agents,
contractors or subcontractors during the performance of this License, whether
direct or indirect, and whether to any person or property to which County or
said parties may be subject, including County's costs and attorneys fees
incurred in defending such claims, except that Licensee will not be liable
under this section for damages arising out of injury or damage to persons or
property directly caused by or resulting from the negligence of County or any
of its officers or employees.
9. INSURANCE
Licensee shall procure, pay for, and maintain during the term of the
License the following insurance:
3
<PAGE> 97
A. Comprehensive General Liability including, but not limited to,
independent contractor, contractual, premises/operations and personal injury
covering liability assumed under indemnification provisions of this License,
with limits of liability for personal injury and/or bodily injury, including
death, of not less than $500,000, each occurrence; and property damage of not
less than $500,000, each occurrence. (Combined single limits of not less than
$500,000 each occurrence, will be acceptable.) Coverage shall be on an
"occurrence" basis. Fire Legal Liability shall be included to limits of
$50,000. This insurance may be provided through one (1) primary policy, or
through use of a primary and an excess umbrella to reach the total required
limits.
B. Workers' Compensation in at least the limits required by Florida law
and Employers' Liability, where applicable, of not less than $100,000.
C. Certificate of Insurance and certified copies of Policies of Insurance
shall be filed prior to submission of this License to County for signature and
thereafter maintained with the Department of Public Works, Right of Way
Administration during the term of this License. Licensee shall notify the
County within twenty-four (24) hours after receipt of any notice of expiration
cancellation, non-renewal or material change in coverage. Companies issuing the
insurance policy, or policies, shall have no recourse against County for
payment of premiums or assessments for any deductibles which all are the sole
responsibility and risk of Licensee. Except for Workers' Compensation, the
County Board of County Commissioners shall be endorsed to the required policy or
policies as an additional insured. The policy clause "Other Insurance" shall
not apply to any insurance coverage currently held by County, to any such future
coverage, or to County's Self-insured Retentions of whatever nature.
4
<PAGE> 98
10. LIABILITY
All property of any kind that may be on the Property during the continuance
of the License shall be at the sole risk of Licensee, and County shall not be
liable to Licensee or any other person for any injury, loss, or damage to
property or to any person on the Property.
In the event County pays any monies required to be paid by Licensee
hereunder, County shall demand repayment of same from LICENSEE within ten (10)
days after such payment and Licensee shall make such payment within ten (10)
days after receipt of such demand. Licensee's failure to timely reimburse shall
be deemed a breach of this License.
12. ENVIRONMENTAL RESPONSIBILITIES
Licensee shall be responsible for obtaining all permits necessary for its
intended use of the Property. County shall cooperate in connection with all
permit applications filed by Licensee, or, if required, shall file such permit
applications itself at Licensee's expense.
Licensee will at all times observe practices consistent with the protection
of the environment including proper handling of fuel and proper disposal of all
waste off site.
County shall have the right during and after the term of this License to
come upon the Property at reasonable times with its employees, engineers, other
personnel, or independent contractors, to inspect and conduct testing upon the
Property. If County determines in its judgment reasonably exercised that the
Property contains any toxic waste, chemical contamination, petroleum spillage
or hazardous waste, which was created or determined by the County, after notice
and opportunity to be heard, to have been caused by Licensee or any of its
members or contractors. County may demand Licensee to pay for a full clean-up
and remediation of the such waste, contamination or spillage on
5
<PAGE> 99
the Property to standards acceptable to the Department of Environmental
Protection or other governmental agency with jurisdiction over setting and/or
enforcing environmental standards. Licensee's clean-up and remediation
responsibilities include but are not limited to all Phase I, Phase II and other
testing costs, as well as preparing a contamination report and remediation
plan.
13. DEFAULT
If Licensee defaults in payment of the fee due hereunder or violates any of
the covenants of this License, County will provide written notice to the
Licensee and Licensee shall have thirty (30) days from receipt of such notice in
which to correct the default.
If Licensee does not correct default, the License shall terminate on the
31st day after receipt of notice unless the default is of such a nature that
cannot or could not be cured within thirty (30) days, in which case the
termination date shall be extended so long as Licensee is undertaking to cure
such default in good faith.
IN WITNESS WHEREOF, County and Licensee have hereunto set its end seal as
of the day and year first above written.
ATTEST Karleen F. DeBlaker COUNTY: PINELLAS COUNTY
Clerk of Circuit Court FLORIDA
By and through its Board of
County Commissioners
By: By:
-------------------------------- --------------------------------
Print Name: Print Name:
------------------------ --------------------------
Deputy Clerk Chairman
(SEAL)
6
<PAGE> 100
WITNESS LICENSEE: HAYDON-RUBIN
DEVELOPMENT, INC., a Florida
corporation
By: By:
------------------------------ ----------------------------
Print Name: Print Name:
---------------------- --------------------
Secretary President
APPROVED AS TO FORM
OFFICE OF COUNTY ATTORNEY
By:
---------------------
Asst. Attorney
<PAGE> 101
REQUEST FOR TRANSFER OF OPERATION
AND MAINTENANCE PERMIT
Within 30 days of the sale or conveyance of a permitted surface water management
system, or the land on which the system is located, the permittee must notify
the Southwest Florida Water Management District, 7601 U.S. Highway 301, North
Tampa, Florida 33637. Upon approval of the proposed operation and maintenance
entity or individual, the District will transfer the operation permit to that
entity or individual.
(1) SURFACE WATER MANAGEMENT SYSTEM INFORMATION:
Permit No. 406360.00 County: Pinellas
Project Name: Bayview Dr.--SR 580/Shore Dr.;
Shore Dr.--SR 580/Bayview
Permittee: Pinellas County Board of County Commissioners
Address: 315 Court Street
City/State/Zip: Clearwater, Florida 34616
Telephone: (813) 464-3251
(2) The District is hereby notified that the Surface Water Management system
identified in Section (1) has been conveyed to a new owner, and the Permittee
requests that the Surface Water Management permit be transferred to the entity
or individual for operation and maintenance as named in Section (3).
By: Robert L. Warren, Director
----------------------- -----------------------------------
Signature of Owner, Name and Title (Please Type)
Permittee or Pinellas County Highway Department
Authorized Agent -----------------------------------
Company Name
22211 U.S. Highway 19 North
----------------------------------------
Company Address
Clearwater, Florida 34625
----------------------------------------
City, State, Zip
Phone: (813) 464-8900 Date:
-------------- -----------
(3) The below-named entity or individual agrees to maintain and operate the
Surface Water Management system in compliance with all permit conditions and the
provisions of Chapter 40D-4, Florida Administrative Code (F.A.C.).
By:
----------------------- ----------------------------------------
Signature of Individual or Name and Title (Please Type)
Authorized Agent ----------------------------------------
Company Name
----------------------------------------
Company Address
----------------------------------------
City, State, Zip
Phone: ( ) Date:
-------------- -----------
RESPONSIBILITY FOR MAINTENANCE AND OPERATION MAY BE TRANSFERRED TO ANOTHER
ENTITY ONLY UPON WRITTEN NOTICE AND APPROVAL BY THE DISTRICT IN ACCORDANCE WITH
RULE 40D-4.351, F.A.C.
===============================================================================
<PAGE> 102
DIRECT USE ONLY
===============================================================================
Based upon the notice of conveyance in Section (2), the responsibility for
operation and maintenance of the system is transferred to the entity named in
Section (3), is effective on the date indicated below.
Southwest Florida Water Management District
By:
--------------------------------- --------------------------------
Authorized District Representative Name and Title
<PAGE> 103
[SEAL] PINELLAS COUNTY PUBLIC WORKS [SEAL]
LAND SURVEY DIVISION
22211 U.S. HIGHWAY 19 N.
CLEARWATER, FLORIDA 33769-2347
SECTIONS(S) 33. TOWNSHIP 29 SOUTH, RANGE 18 EAST
A 165 ft. wide strip, being a portion of Lots 22 and 23, PINELLAS GROVES
Subdivision, according to plot thereof, as recorded in Plot Book 1, Pope SS,
public records of Pinellas County, Florida, in the Southeast 1/4 of Section 33,
Township 29 South Range 16 East, Pinellas County, being described as
follows:
Commencing at the South 1/4 Corner of said Section 33, run N 01 degree
34'06" W along the North-South Centerline of said Section 33, for a
distance of 1373 20 feet is the Northwest corner of the Southwest 1/4 of
said Southeast 1/4 of Section 33; thence S 89 degrees 33'43"E along the
North line thereof, for a distance of 755.34 feet; thence S 35 degrees
35'38"W, for a distance of 18.31 feet to a point on the North line of said
Lot 22, for a POINT OF BEGINNING; thence S 89 degrees 33'43"E along said
North line, for a distance of 301.41 feet; thence S 35 degrees 25'58"W, for
a distance of 339.12 feet to a point being 100 ft. northeasterly of the
centering of construction of Roosevelt Boulevard, the same being a Point on
Curve, a radial to said point being S 34 degrees 38'5"W, thence
northwesterly, 165.02 pt. along the arc of a curve centering northeast,
having a radius of 3719.72 ft., through a central angle of 02 degrees
33'31", a chord of N 54 degrees 04'00"W, 165.01 feet to a Point of
Non-tengency, thence N 35 degrees 25'55 E, for a distance of 242.16 feet to
the POINT OF BEGINNING.
CONTAINING 49,706: OR 1.141 acres M.O.L.
BASIS OF BEARINGS: Bearings shown are assumes, based on the North-South
Centerline of Section 33, Township 29 South, Range 16 East,
Pinellas County, Florida, being N 01 degree 34'05" W.
[MAP]
[SEAL]
<PAGE> 104
[MAP]
<PAGE> 105
EXHIBIT C
HOGAN - BURT DEVELOPMENT, INC.
DIGITAL LIGHTWAVE
PRELIMINARY OUTLINE SPECIFICATIONS
December 29, 1997
These specifications together with the Conceptual Plans prepared by Smallwood,
Reynolds, Stewart, Steward and Associates of Florida, Inc. establish the
starting point for design development drawings. The Conceptual Plans are
comprised of the following:
Perspective of Building Entry December 29, 1997
Sheet A0-1 December 29, 1997
Sheet A1-1 December 29, 1997
Sheet A1-2 December 29, 1997
Sheet A1-3 December 29, 1997
Sheet A2-1 December 29, 1997
The building shall be a three story structure, with a glass and precast
concrete envelope constructed with a structural steel frame and built-up roof.
The finished floor elevation of the first floor shall be 11'0" above Mean Sea
Level. The clear height of the first and second floor shall be 15'6" feet
between floors, with a 11' foot finished ceiling height. The third floor shall
have a finished ceiling height of 9'. A fire protection system has been
included. Construction of the building shell includes restroom and first floor
exit corridors finishes. The building shell also includes a finished ceiling
with lighting, HVAC distribution and diffusers, and fire protection drops.
Construction is Type 4, business occupancy. All systems and components to be
installed per manufacturers specifications.
IN ADDITION TO THE TENANT FINISH ALLOWANCE OF $20/SF, THESE OUTLINE
SPECIFICATIONS INLCUDE SPECIAL TENANT ALLOWANCES FOR CERTAIN ITEMS OF WORK. AS
THE DRAWINGS ARE COMPLETED, THE DESIGN/BUILDER WILL FINALIZE THE TENANT
ALLOWANCE PRICES AND CREDIT THE TENANT WITH COST SAVINGS REALIZED IN ACCORDANCE
WITH SECTION 2.13 OF LEASE. CONVERSELY, IF THE PRESENT TENANT ALLOWANCES ARE
NOT SUFFICIENT TO COVER FINAL COSTS, THE DESIGN/BUILDER WILL ADJUST THE TENANT
PRICING BASED ON THE DESIGN APPROVED BY TENANT AND OWNER IN ACCORDANCE WITH
SECTION 2.13 OF THE LEASE.
ALL ALLOWANCES INCLUDE MATERIAL, LABOR, CONTRACTORS GENERAL CONDITIONS AND FEE,
EXCEPT AS NOTED.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 1
<PAGE> 106
TENANT FINISHES
A tenant finish allowance of $20.00 per rentable square foot has been provided
the following finish items of work:
- Tenant finish space planning & construction drawings
- Furring and drywall for tenant walls
- Floor coverings
- Doors and hardware
- Interior glazing
- Interior painting
- Furniture hook-up
- Power distribution
- Fire alarm/Card access system
- HVAC VAV refinement
- HVAC test and balance
- Wall coverings
- Breakroom finishes
- Lobby finishes
- Millwork (other than toilet rooms)
- Raised floor
- Cafeteria
- Generator/UPS backup
- Special air conditioning requirements (computer/server rooms,
laboratories, etc.)
IN THE ADDITIONAL TO THE ABOVE AN ALLOWANCE OF $70,000 HAS BEEN
INCLUDED FOR UPGRADE LOBBY FINISHES.
SPECIAL TENANT ALLOWANCES ARE NOTED BELOW.
BUILDING SHELL (EXCEPT WHERE NOTED)
DIVISION 1 - GENERAL REQUIREMENTS
GENERAL CONDITIONS
Architectural and Engineering services included.
IMPACT AND BUILDING PERMIT FEES
Impact Fees and connection fees are to be paid by owner. Shell building permit
fees are included.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 2
<PAGE> 107
LABORATORY TESTING
All soils and construction material testing included.
INSURANCE AND BONDS
Liability and property damage insurance included.
Payment and performance bond to be paid by owner.
Builders risk insurance included by owner
DIVISION 2 - SITEWORK
SURVEY & LAYOUT
Boundary survey included.
SITE AND TREE PREPARATION
Includes the following items of work:
Clearing and grubbing
Erosion control
Asphalt paving for approximately 450 parking spaces including 9 handicap
accessible spaces. (201 covered, 249 uncovered)
Curbing for landscape islands
Pavement marking and striping
Sanitary sewer
Storm drainage
Fire line service
Domestic water service
Site lighting provided (2 FC average)
LANDSCAPING ($100,000 allowance net to Owner)
Includes the following items of work:
Architecture
Planting
Sodding
Irrigation
Planting topsoil
Tree Protection
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 3
<PAGE> 108
DIVISION 3 -- CONCRETE
STRUCTURAL CONCRETE
Spread footing system has been included utilizing 3,000 psi concrete with
required reinforcing steel, assuming a soil bearing capacity of 2,000 LB/SF.
The following components typically associated with precast concrete
construction are included:
Reinforcement and accessories
Grade beams
Slab-on grade - 5" thickness (3,000 psi with wire mesh slab
reinforcement)
Concrete to be placed on compacted sub-base to 95% modified proctor.
Two - 4' deep elevator pit for hydraulic elevator
Slab-on-deck material to be 3,000 psi light-weight concrete with an
average depth of 3-1/2"
Precast parking deck to support 180 cars (standard smooth finish
painted to match building)
ARCHITECTURAL PRECAST
ARCHITECTURAL PRECAST CONCRETE (INCLUDING LABOR, HOISTING, AND MATERIALS) IS
BASED ON THE COLOR AND AGGREGATE SAMPLES PREVIOUSLY PROVIDED TO OWNER AND
TENANT. THE PRECAST MATERIAL SHALL BE A SINGLE MIX COLOR, WITH TWO SURFACE
TEXTURES (CHOICES: SMOOTH, SANDBLASTED OR RETARDED) AND INCLUDE NEGATIVE RELIEF
DETAILS AS SHOWN ON THE CONCEPTUAL PLANS.
AN ARCHITECTURAL PRECAST UPGRADE OF $106,338 HAS BEEN INCLUDED FOR COLONNADE
PRECAST.
AN ARCHITECTURAL PRECAST UPGRADE OF $82,158 HAS BEEN INCLUDED FOR 24" VERTICAL
PRECAST COLUMN COVERS. THESE COLUMN COVERS ARE LOCATED ON EACH BAY LINE AT THE
COLUMNS AND MIDWAY BETWEEN EACH BAY (COLUMN) LINE, EXCEPT ON THE
SECTIONAL-CURVED AREA AT THE FRONT OF THE BUILDING.
DIVISION 4 -- MASONRY
Not included.
DIVISION 5 -- STRUCTURAL STEEL
All steel framing shall conform to ASTM A-36.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 4
<PAGE> 109
Steel roof joists with truss girder beams primer gray. (38 lb. total load). Roof
deck -- 22 gauge painted. Second and third floor -- composite deck (125 lb.
total load)
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $43,845 HAS BEEN INCLUDED FOR THE DESIGN, MATERIALS
AND INSTALLATION OF STEEL MODIFICATIONS TO ACCOMMODATE THE RADIUS LOBBY.
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $21,300 HAS BEEN INCLUDED FOR STEEL MODIFICATIONS TO
ACCOMMODATE THE COMMUNICATING STAIR.
LIGHT GAUGE STEEL FRAMING
Steel studs -- 24 gauge minimum, 24" o/c. for all interior partitions.
METAL FABRICATIONS
Precast and structural steel embed plates
HVAC curbs
Mechanical screen
DIVISION 6 -- CARPENTRY AND MILLWORK
FINISH CARPENTRY
Plastic laminate vanity cabinets for all restrooms included.
Additional millwork included as part of tenant finish allowance.
The AWI grade for the millwork will be "custom grade" as defined in the
following AWI Sections of Quality Standards: Section 100, 200 and 400.
Plastic laminate toilet partitions are included in the base building.
DIVISION 7 -- MOISTURE PROTECTION
WATERPROOFING
Vapor barrier below slab-on-grade.
ROOFING
4-ply built-up fiberglass (type VI) roofing system with gravel surfacing.
- --------------------------------------------------------------------------------
DIGITAL LIGHTWAVE BUILDING Outline Specification Page 5
<PAGE> 110
Fiber cants and base flashings at roof curbs.
Ten (10) year no dollar limit warranty.
Roofing shall be a watertight, build-up roofing and base flashing roofing system
with compatible components that will not permit the passage of liquid water and
will withstand wind loads, thermally induced movement, and exposure to weather
without failure as defined by the terms of the specified Standard Roofing
Manufacture's 10 Year Warranty.
Provide and submit a written Standard Roofing Manufacture's 10 Year Warranty,
without monetary limitation to include both labor and materials, signed by
roofing system manufacturer agreeing to promptly repair leaks in the roof
membrane and base flashing resulting from defects in materials and workmanship
for the warranty period.
SEALANTS
Two-part polyurethane caulking with foam backer rod for panel joints.
INSULATION
Roof insulation shall be R-20 2" perlite board placed on the roof deck.
DIVISION 8 -- DOORS AND WINDOWS
ENTRANCE DOOR AND FRAME
Door Type -- swing with tempered glass
Frame -- Aluminum painted Kynar 500 Standard Color
Concealed overhead closer
Doors for the patio and loading areas are narrow stile, manufactured by Kawneer
190 series, storefront doors.
Doors for lobby are narrow stile, manufactured by Kawneer 190 series, storefront
doors.
INTERIOR WOOD DOORS -- (Included as part of the tenant allowance)
Type -- Solid core, flush 3'-0" x 8' standard
Finish -- stained oak hardwood veneer
The interior doors will be AWI premium grade. The up charge for the maple or
cherry veneer would be $135.00 per standard 3' x 8' door. The proposed cut on
the oak doors is a rotary cut. The up charge for the full height doors (9 feet)
would be $180.00 per oak door. The up charge for full height maple or cherry
doors would be $245.00 per door.
FIRE-RATED DOORS
UL label where required by building codes.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 6
<PAGE> 111
GLASS AND GLAZING
Three story curtain wall entry system (Kawneer 1600 Wall (2.5" x 7.5").
Aluminum framing - Painted Kynar 500 Standard Color
Building exterior glass - 1" tinted insulated section standard PPG colors.
Tempered glass where required by building codes
Aluminum window system shall be engineered, fabricated, and installed to
withstand normal thermal movement, wind loading, and impact loading without
failure, as demonstrated by testing manufacture's standard window assemblies
representing types, grades, classes, and sizes required for Project according
to standard test methods and as follows:
Air infiltration shall be no more than 0.06 CFM per sq. ft. of fixed area at
6.24 PSF pressure differential per ASTM E283-84.
System shall meet a water test with no uncontrolled leakage at 6.5 psf pressure
differential with a water rate of 5 gallons/hr/sq.ft. when tested in accordance
with ASTM E331-86.
Based on an estimate derived from information provided by tenant's consultant a
Special Tenant Allowance of $222,921 as the estimate for design, materials and
installation of the three story glass lobby wall, including full-height
structural glass 5 segments, interior tubular steel between the second and
third floors with two vertical members from the ground floor to the interior
tubular steel, and 28" fins. Including three pair of 6' x 9' 1/2" glass doors.
The only colors available are clear, bronze and gray.
Based on an estimate derived from information provided by tenant's consultant a
Special Tenant Allowance of $31,150 has been included for the curtain wall
glass at the sawtooth corner.
Based on an estimate derived from information provided by tenant's consultant a
Special Tenant Allowance of $9,900 has been included for elevator lobby
railings on the second and third floors.
Based on an estimate derived from information provided by tenant's consultant a
Special Tenant Allowance of $20,535 has been included for a 4" recess glass
detail at the precast openings.
Based on an estimate derived from information provided by tenant's consultant a
Special Tenant Allowance of $33,078 has been included for interior lobby glass
walls to be butt glazed (3/8" thick) or mullion systems.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 7
<PAGE> 112
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE $9,620 HAS BEEN INCLUDED FOR 3RD FLOOR RAILINGS FOR THE
COMMUNICATING STAIR.
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $12,500 HAS BEEN INCLUDED FOR THE COMMUNICATING
STAIR RAILINGS.
FINISH HARDWARE -- (Included as part of the tenant allowance)
Heavy duty with levers; door stops on all doors.
UL Label hardware where required by building codes.
Finish shall be brushed or bright chrome.
The hardware will be Schlage "D" Series.
DIVISION 9 -- FINISHES
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $36,075 HAS BEEN INCLUDED FOR THE COMMUNICATING
STAIR.
CERAMIC TILE
Included on all shell building restroom floors and walls. Allowance $6.00/SF to
owner. (including labor)
VINYL WALL BASE -- (Included as part of the tenant allowance)
CARPETING -- (Included as part of the tenant allowance)
GYPSUM WALLBOARD -- (Included as part of the tenant allowance)
Base building typical partitions -- 3-5/8" metal stud type with fire ratings as
required by code. Minimum 1/2" type X thick drywall and framed to deck for
corridors. Interior furring of exterior walls and columns (taped, spackled and
sanded) is included as part of the tenant allowance.
PAINTING -- (Included as part of the tenant allowance)
Walls -- First coat drywall primer sealer
Flat latex (2 coats)
Wood Doors -- Stain and seal
Door frames -- Semi-gloss enamel (2 coats)
The door frames will have a primer coat.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 8
<PAGE> 113
Ceilings
Suspended tegular tile, 24" x 24", fissured. (USG 323 or equal 5/8" thick) The
ceiling grid is 2' x 2' 15/16" thick. Drywall ceilings are provided in the lobby
and the elevator lobby as part of the shell building.
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $24,975 HAS BEEN INCLUDED FOR THE COLONNADE SOFFITS.
Vinyl Wallcovering-(Included as part of the tenant allowance)
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $77,700 HAS BEEN INCLUDED FOR THE LOBBY FLOORING.
DIVISION 10 - SPECIALTIES
GRAPHICS AND EXTERIOR SIGNAGE (Allowance $10,000 to owner)
MIRRORS-Type - 1/4" polished plate, above lavatories
LIQUID SOAP DISPENSER-Counter mounted, one per lavatory.
TOWEL DISPENSERS AND RECEPTACLES
Material - stainless steel
Finish - brushed satin
Mounting - surface
GRAB BARS (At Handicapped Toilet Compartment)
Material - metal
Finish - brushed satin
Mounting - concealed
A SPECIAL TENANT ALLOWANCE OF $5,550 HAS BEEN INCLUDED FOR "FIXTURE" PACKAGE
(TENANT SELECTED ITEMS).
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $38,850 HAS BEEN INCLUDED FOR A SKYLIGHT IN THE
LOBBY.
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $3,330 HAS BEEN INCLUDED FOR THREE ENTRY MATS FOR
THE LOBBY.
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DIGITAL LIGHTWAVE BUILDING Outline Specification Page 9
<PAGE> 114
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $5,550 HAS BEEN INCLUDED FOR THE DIRECTORY/GRAPHIC
PACKAGE.
DIVISION 11-EQUIPMENT
Not included
DIVISION 12-FURNISHINGS AND BLINDS-(Included as part of the tenant allowance)
DIVISION 13-SPECIAL CONSTRUCTION
Not included
DIVISION 14-CONVEYING SYSTEMS
Two hydraulic passenger elevators, included a $5,000 allowance (each) to owner
for cab finishes. 2,500 LB at 125 fpm. The building standard door finish is
painted.
BASED ON AN ESTIMATE DERIVED FROM INFORMATION PROVIDED BY TENANT'S CONSULTANT A
SPECIAL TENANT ALLOWANCE OF $11,100 HAS BEEN INCLUDED FOR ELEVATOR DOOR AND
FRAME UPGRADES.
DIVISION 15-MECHANICAL
HVAC
DESIGN CONDITIONS
The mechanical design and installation shall comply with all applicable codes of
the National Fire Protection Association (NFPA), Standard Mechanical Code,
Florida Energy Code, ASHRAE Standard 62-1989 state and local codes.
The heating, ventilating and air conditioning systems shall be designed and
selected to produce the indoor conditions noted below when the outdoor
conditions are as stated (ASHRAE 2-1/2% level):
- -----------------------------------------------------------------------------
DIGITAL LIGHTWAVE BUILDING Outline Specification Page 10
<PAGE> 115
Indoor Conditions:
Summer 75 degrees F. db +/-2 degrees 55%RH+/-5%
Winter 70 degrees F. db +/-2 degrees
Outdoor Conditions:
Summer 91 degrees F. db
77 degrees F. wb Design
Winter 40 degrees F. db
The building shall be cooled with a total of six (6) rooftop units totaling 275
tons.
VARIABLE VOLUME UNITS
Variable volume units shall be stand alone DDC controlled.
ROOFTOP AIR CONDITIONING UNITS - VARIABLE VOLUME
Factory assembled, piped and wired single package rooftop air conditioner. All
rooftop units shall be of the same manufacturer. Carrier, Trane, or McQuay.
Unit shall be single package type designed for outdoor application and shall
provide complete protection for all components and controls.
AIR DISTRIBUTION SYSTEMS DESCRIPTION
Conditioned air is supplied to each floor from the rooftop units through a
medium pressure, medium velocity air distribution system to pressure
independent variable volume control terminals (interior zone) and/or pressure
independent powered induction units with heat (exterior zone) located
throughout the floors. Initial zoning will be one variable volume system per
2200 square feet on average.
The heating requirements for the building are handled by electric resistance
heating coils, located either downstream of or integral to the powered
induction units located in the ceiling return air plenum in the vicinity of the
various zones.
Toilet room exhaust will be ducted to a toilet exhaust riser (each bank of
toilets) up to exhaust fans on the roof.
AIR DISTRIBUTION DEVICES
Ceiling supply diffusers shall be perforated plate type.
The base building does include dropping the HVAC diffusers. It does not include
moving of the diffusers to accommodate interior walls or the addition of VAV
boxes for required zoning.
- -------------------------------------------------------------------------------
DIGITAL LIGHTWAVE BUILDING Outline Specification Page 11
<PAGE> 116
FIRE PROTECTION
Based on light hazard occupancy. Fire sprinkler system design will be in
accordance with NFPA and Standard Building Code standards. The base building
does include dropping the sprinkler heads. It does not include moving of the
heads to accommodate interior walls.
The fire protection design and installation shall comply with all applicable
codes of the National Fire Protection Association (NFPA 13 and NFPA 14), local
codes in addition to the local fire marshal.
PLUMBING
A complete system of plumbing will be installed and consist of complete systems
of sanitary drainage, storm drainage, hot water and cold water throughout the
building. Roof drainage will be provided to connect into the storm lines on the
surrounding site. Domestic hot water will be supplied from a central electric
water heater. Sanitary system will be extended from wet columns, toilet room
fixtures, and mechanical equipment to the sanitary sewer system. The cold water
will deliver water from the public water main through a meter to the building.
The plumbing design and installation shall comply with all applicable codes of
the National Fire Protection Association (NFPA), Standard Plumbing Code,
Americans with Disabilities Act, and local codes.
DIVISION 16 - ELECTRICAL
Main switchboards, panel boards for lighting and HVAC, distribution boards,
transformers and feeders for the base building included. One panel per floor
provided (277/480 volt 600 amp) for tenant use as part of the base building.
The electrical design and installation shall comply with all applicable codes
of the National Fire Protection Association (NFPA), National Electrical Code
(NEC), Underwriter's Laboratories (UL), Americans with Disabilities Act, and
Florida Energy Code in addition to any applicable state and local codes.
Complete lighting system.
Power wiring and connection for all mechanical equipment.
Fire alarm system.
- -------------------------------------------------------------------------------
DIGITAL LIGHTWAVE BUILDING Outline Specification Page 12
<PAGE> 117
Tenant Distribution
A junction box grid system shall be provided for tenant lights (at 277 volts).
The grid shall consist of a junction box for each system (nippled together)
spaced 20' x 20' on center using a common conduit.
Wire and Cables
All conductors shall be of copper and shall meet the ASTM Specifications for
conductivity.
Elevator Equipment
Install disconnects and feeders to elevator machine controllers.
Electrical Service
Electric Service will be 277/480 volts, three phase, 4 wire "Wye". The project
shall be served by one 2000 amp service. Service to the building shall be
provided by underground feed from the property line to the pad mounted
transformer and from the transformer to the building.
Panel boards
Panel boards shall be of the automatic circuit breaker type, factory assembled
by the manufacturer of the circuit breakers. Panel boards shall bear UL labels.
Lighting Fixtures
Fixtures for tenant areas shall be 2' x 4' fluorescent, 3 lamp, lay-in type,
four sided air return with 18 cell parabolic lens. One fixture per 80sf. The 2 x
4 fixtures are 3" deep, 18 cell parabolic with energy saving T-8 ballasts. Model
to be Metalux 2EP36X-340S36H-277-LE3 or equal. Emergency lighting shall be
provided with 2' x 4' fixtures equipped with a battery pack with a LED switch.
Entry and Lobby Areas
Recessed round HID (Metal Halide) and compact fluorescent down lights. Included
in the shell building cost.
Typical Floor Elevator Lobbies
Compact fluorescent down lights.
- --------------------------------------------------------------------------------
DIGITAL LIGHTWAVE BUILDING Outline Specification Page 13
<PAGE> 118
STAIRWELLS
Two-lamp fluorescent with wall mounted wrap-around acrylic lens fixture over
each landing.
LAVATORIES
Recessed parabolic egg crate louvers at opposite walls over mirrors and over
toilet areas. Down lights provided at entry and center of restrooms.
LIFE SAFETY SYSTEM
Provide a complete fire alarm system to comply with NFPA 72A and all local
requirements. The fire alarm system included is the minimum required by code.
Any upgrade of the system would be covered by the tenant finish allowance.
FIRE ALARM SYSTEM
Shall be hard wired and shall include:
Manual pull stations at each stairwell entry and exit door.
Smoke detectors in all mechanical and elevator equipment rooms, electrical
rooms, telephone rooms, and elevator lobbies.
Smoke detectors in supply and return ducts of each air handler system and in
outside air intake fans.
- --------------------------------------------------------------------------------
DIGITAL LIGHTWAVE BUILDING Outline Specification Page 14
<PAGE> 119
NOTE:
1. THIS PERSPECTIVE INDICATES A TENANT REQUESTED OPTION OF A STRUCTURAL
GLAZING SYSTEM AT THE FRONT ENTRY.
2. THIS PERSPECTIVE INDICATES A TENANT REQUESTED OPTION OF THE PRECAST
PANEL WRAPPING OF THE 1ST FLOOR COLONNADE COLUMNS.
3. THIS PERSPECTIVE INDICATES A TENANT REQUESTED OPTION OF STUCCO AT ALL
HORIZONTAL SOFFITS.
[PICTURE]
<PAGE> 120
[FLOOR PLAN]
<PAGE> 121
[FLOOR PLAN]
<PAGE> 122
[BUILDING SECTION]
[EAST ELEVATION]
[END ELEVATION]
<PAGE> 123
EXHIBIT D
DIGITAL LIGHTWAVE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
ID TASK NAME DURATION START FINISH SOURCE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Phase One Environmental Report Complete 0d Dec 15 Dec 15 Seller
- ------------------------------------------------------------------------------------------------
2 Notice to Proceed 0d Dec 15 Dec 15 Owner
- ------------------------------------------------------------------------------------------------
3 DESIGN 118d Nov 13 May 6
- ------------------------------------------------------------------------------------------------
4 CIVIL DESIGN AND PERMITTING 49d Nov 13 Jan 28
- ------------------------------------------------------------------------------------------------
5 Site - Civil engineering 9d Nov 13 Nov 25 Seller
- ------------------------------------------------------------------------------------------------
6 Geotechnical report complete 0d Nov 13 Nov 13 Sell/Own
- ------------------------------------------------------------------------------------------------
7 Submit site plan to County 40d Nov 26 Jan 28 Sell/Own
- ------------------------------------------------------------------------------------------------
8 Submit site plan to SWFMD 40d Nov 26 Jan 28 Seller
- ------------------------------------------------------------------------------------------------
9 County site plan approval 0d Jan 28 Jan 28 Pin. County
- ------------------------------------------------------------------------------------------------
10 SWFMD site plan approval 0d Jan 28 Jan 28 SWFMD
- ------------------------------------------------------------------------------------------------
11 Receive site permit 0d Jan 28 Jan 28 Perry Co.
- ------------------------------------------------------------------------------------------------
12 ARCHITECTURAL DESIGN 97d Dec 16 May 5
- ------------------------------------------------------------------------------------------------
13 Building design and working drawings 38d Dec 16 Feb 11 Perry Co.
- ------------------------------------------------------------------------------------------------
14 Design development drawings 0d Jan 15 Jan 15 Perry Co.
- ------------------------------------------------------------------------------------------------
15 Review DD Drawings 5d Jan 15 Jan 21 Digital
- ------------------------------------------------------------------------------------------------
16 M.E.P. Shell drawings 6w Dec 24 Feb 9 Perry Co.
- ------------------------------------------------------------------------------------------------
17 Prepare steel shop drawings 4w Jan 2 Jan 29 Perry Co.
- ------------------------------------------------------------------------------------------------
18 Prepare precast shop drawings 4w Jan 2 Jan 29 Perry Co.
- ------------------------------------------------------------------------------------------------
19 Select precast color 0d Jan 13 Jan 13 Digital
- ------------------------------------------------------------------------------------------------
20 Order structural steel 6w Feb 3 Mar 30 Perry Co.
- ------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
1998
- -----------------------------------------------------------------------------------------------------------------------------------
ID TASK NAME 4TH QUARTER 1ST QUARTER 2ND QUARTER 3RD QUARTER 4TH QUARTER 1ST QUARTER
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 Phase One Environmental Report Complete
- ------------------------------------------------
2 Notice to Proceed
- ------------------------------------------------
3 DESIGN
- ------------------------------------------------
4 CIVIL DESIGN AND PERMITTING
- ------------------------------------------------
5 Site - Civil engineering
- ------------------------------------------------
6 Geotechnical report complete
- ------------------------------------------------
7 Submit site plan to County
- ------------------------------------------------
8 Submit site plan to SWFMD
- ------------------------------------------------
9 County site plan approval
- ------------------------------------------------
10 SWFMD site plan approval
- ------------------------------------------------
11 Receive site permit
- ------------------------------------------------
12 ARCHITECTURAL DESIGN
- ------------------------------------------------
13 Building design and working drawing
- ------------------------------------------------
14 Design development drawings
- ------------------------------------------------
15 Review DD Drawings
- ------------------------------------------------
16 M.E.P. Shell drawings
- ------------------------------------------------
17 Prepare steel shop drawings
- ------------------------------------------------
18 Prepare precast shop drawings
- ------------------------------------------------
19 Select precast color
- ------------------------------------------------
20 Order structural steel
- ------------------------------------------------
</TABLE>
Date: Jan 5 Task Critical Task Milestone
Page: 1 of 6 Task Progress Critical Task Progress Summary
Hogan Burt Development Incorporated
<PAGE> 124
DIGITAL LIGHTWAVE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ID Task Name Duration Start Finish Source
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
21 Order precast 12w Feb 3 Apr 27 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
22 Submit shell plans for permit 0d Feb 11 Feb 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
23 Tenant construction drawings 54d Jan 15 Mar 31 Digital
- ------------------------------------------------------------------------------------------------------------------------------------
24 Building permit review - Shell 20d Feb 12 Mar 11 Pin. County
- ------------------------------------------------------------------------------------------------------------------------------------
25 Receive building permit - Shell 0d Mar 11 Mar 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
26 Receive and review tenant drawings 5d Apr 1 Apr 7 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
27 Put tenant drawings out to bid 15d Apr 8 Apr 28 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
28 Submit tenant drawings for permit 4w Apr 8 May 5 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
29 Tenant subcontractor selection 5d Apr 29 May 5 Perry/Digital
- ------------------------------------------------------------------------------------------------------------------------------------
30 Receive tenant permit 0d May 5 May 5 Pin County
- ------------------------------------------------------------------------------------------------------------------------------------
31 SITE PREPARATION AND CLOSING 201d Dec 1 Sep 11
- ------------------------------------------------------------------------------------------------------------------------------------
32 Demolition of Master Site 32d Dec 1 Jan 19 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
33 Clear and grub Office Parcel 4d Jan 5 Jan 8 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
34 Record Covenants 0d Jan 30 Jan 30 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
35 Pad Preparation Office Parcel 10d Feb 2 Feb 13 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
36 Land Closing 0d Feb 2 Feb 2 Sell/Own
- ------------------------------------------------------------------------------------------------------------------------------------
37 Grading and excavation common area 35d Feb 23 Apr 10 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
38 Construct retaining walls common area 20d Mar 2 Mar 27 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
39 Underground utilities common area 25d Apr 6 May 8 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
40 Curb and paving common area 24d May 11 Jun 11 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 2 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DIGITAL LIGHTWAVE
---------------------------------------------------------------------------------------
1998
---------------------------------------------------------------------------------------
4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 1st Quarter
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
21 Order precast
- ------------------------------------------------------------------------------------------------------------------------------------
22 Submit shell plans for permit
- ------------------------------------------------------------------------------------------------------------------------------------
23 Tenant construction drawings
- ------------------------------------------------------------------------------------------------------------------------------------
24 Building permit review - Shell
- ------------------------------------------------------------------------------------------------------------------------------------
25 Receive building permit - Shell
- ------------------------------------------------------------------------------------------------------------------------------------
26 Receive and review tenant drawings
- ------------------------------------------------------------------------------------------------------------------------------------
27 Put tenant drawings out to bid
- ------------------------------------------------------------------------------------------------------------------------------------
28 Submit tenant drawings for permit
- ------------------------------------------------------------------------------------------------------------------------------------
29 Tenant subcontractor selection
- ------------------------------------------------------------------------------------------------------------------------------------
30 Receive tenant permit
- ------------------------------------------------------------------------------------------------------------------------------------
31 SITE PREPARATION AND CLOSING
- ------------------------------------------------------------------------------------------------------------------------------------
32 Demolition of Master Site
- ------------------------------------------------------------------------------------------------------------------------------------
33 Clear and grub Office Parcel
- ------------------------------------------------------------------------------------------------------------------------------------
34 Record Covenants
- ------------------------------------------------------------------------------------------------------------------------------------
35 Pad Preperation Office Parcel
- ------------------------------------------------------------------------------------------------------------------------------------
36 Land Closing
- ------------------------------------------------------------------------------------------------------------------------------------
37 Grading and excavation common area
- ------------------------------------------------------------------------------------------------------------------------------------
38 Construct retaining walls common area
- ------------------------------------------------------------------------------------------------------------------------------------
39 Underground utilities common area
- ------------------------------------------------------------------------------------------------------------------------------------
40 Curb and paving common area
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 2 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 125
DIGITAL LIGHTWAVE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ID Task Name Duration Start Finish Source
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
41 Hardscape and irrigation common area 25d Jul 6 Aug 7 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
42 Landscaping 21d Aug 14 Sep 11 Seller
- ------------------------------------------------------------------------------------------------------------------------------------
43 BUILDING CONSTRUCTION 205d Feb 3 Nov 16
- ------------------------------------------------------------------------------------------------------------------------------------
44 SITEWORK 202d Feb 3 Nov 11
- ------------------------------------------------------------------------------------------------------------------------------------
45 Stormwater underground 20d Feb 3 Mar 2 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
46 Sanitary underground 8d Mar 3 Mar 12 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
47 Water underground 8d Mar 13 Mar 24 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
48 Fire underground 8d Mar 25 Apr 3 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
49 Construct building pad 4d Feb 16 Feb 19 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
50 Lighting underground 8d Apr 6 Apr 15 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
51 Rough grade site 13d Apr 16 May 4 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
52 Irrigation sleeves 2d May 5 May 6 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
53 Install paving base 10d May 5 May 18 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
54 Pave 6d Aug 18 Aug 25 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
55 Fine grade site 8d Aug 26 Sep 4 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
56 Install curbs 5d Aug 26 Sep 1 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
57 Irrigation installation 20d Sep 2 Sep 29 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
58 Landscaping 25d Sep 30 Nov 3 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
59 Sod 6d Nov 4 Nov 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
60 Shell Dry In 143d Mar 12 Sep 28
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 3 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DIGITAL LIGHTWAVE
---------------------------------------------------------------------------------------
1998
---------------------------------------------------------------------------------------
4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 1st Quarter
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
41 Hardscape and irrigation common area
- ------------------------------------------------------------------------------------------------------------------------------------
42 Landscaping
- ------------------------------------------------------------------------------------------------------------------------------------
43 BUILDING CONSTRUCTION
- ------------------------------------------------------------------------------------------------------------------------------------
44 SITEWORK
- ------------------------------------------------------------------------------------------------------------------------------------
45 Stormwater underground
- ------------------------------------------------------------------------------------------------------------------------------------
46 Sanitary underground
- ------------------------------------------------------------------------------------------------------------------------------------
47 Water underground
- ------------------------------------------------------------------------------------------------------------------------------------
48 Fire underground
- ------------------------------------------------------------------------------------------------------------------------------------
49 Construct building pad
- ------------------------------------------------------------------------------------------------------------------------------------
50 Lighting underground
- ------------------------------------------------------------------------------------------------------------------------------------
51 Rough grade site
- ------------------------------------------------------------------------------------------------------------------------------------
52 Irrigation sleeves
- ------------------------------------------------------------------------------------------------------------------------------------
53 Install paving base
- ------------------------------------------------------------------------------------------------------------------------------------
54 Pave
- ------------------------------------------------------------------------------------------------------------------------------------
55 Fine grade site
- ------------------------------------------------------------------------------------------------------------------------------------
56 Install curbs
- ------------------------------------------------------------------------------------------------------------------------------------
57 Irrigation installation
- ------------------------------------------------------------------------------------------------------------------------------------
58 Landscaping
- ------------------------------------------------------------------------------------------------------------------------------------
59 Sod
- ------------------------------------------------------------------------------------------------------------------------------------
60 Shell Dry In
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 3 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 126
DIGITAL LIGHTWAVE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ID Task Name Duration Start Finish Source
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
61 Plumbing underslab rough 12d Mar 12 Mar 27 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
62 Electrical underslab rough 12d Mar 12 Mar 27 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
63 Wall footings 8d Mar 12 Mar 23 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
64 Column pads 8d Mar 12 Mar 23 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
65 Slab prep and pour 12d Mar 30 Apr 14 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
66 Erect Structural Steel 30d Apr 29 Jun 9 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
67 Pour 2nd floor slab 6d Jun 10 Jun 17 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
68 Precast Erection 4w Jun 10 Jul 7 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
69 Pour 3rd floor slab 8d Jun 18 Jun 29 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
70 Install roofing curbs 4d Jun 30 Jul 3 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
71 Exterior glazing 25d Jul 8 Aug 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
72 Roofing Dry in 13d Jul 6 Jul 24 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
73 Roofing finished 10d Jul 27 Aug 7 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
74 Frame Curtainwall 25d Aug 12 Sep 15 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
75 E.I.F.S. 9d Sep 18 Sep 28 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
76 PARKING GARAGE 97d Jun 1 Oct 13
- ------------------------------------------------------------------------------------------------------------------------------------
77 Erect structural doubletees 30d Jun 1 Jul 10 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
78 Pour 1st floor slab 10d Jul 13 Jul 24 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
79 Waterproof parking deck 12d Jul 27 Aug 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
80 Fire Protection 15d Aug 12 Sep 1 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 4 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DIGITAL LIGHTWAVE
---------------------------------------------------------------------------------------
1998
---------------------------------------------------------------------------------------
4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 1st Quarter
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
61 Plumbing underslab rough
- ------------------------------------------------------------------------------------------------------------------------------------
62 Electrical underslab rough
- ------------------------------------------------------------------------------------------------------------------------------------
63 Wall footings
- ------------------------------------------------------------------------------------------------------------------------------------
64 Column pads
- ------------------------------------------------------------------------------------------------------------------------------------
65 Slab prep and pour
- ------------------------------------------------------------------------------------------------------------------------------------
66 Erect Structural Steel
- ------------------------------------------------------------------------------------------------------------------------------------
67 Pour 2nd floor slab
- ------------------------------------------------------------------------------------------------------------------------------------
68 Precast Erection
- ------------------------------------------------------------------------------------------------------------------------------------
69 Pour 3rd floor slab
- ------------------------------------------------------------------------------------------------------------------------------------
70 Install roofing curbs
- ------------------------------------------------------------------------------------------------------------------------------------
71 Exterior glazing
- ------------------------------------------------------------------------------------------------------------------------------------
72 Roofing Dry in
- ------------------------------------------------------------------------------------------------------------------------------------
73 Roofing finished
- ------------------------------------------------------------------------------------------------------------------------------------
74 Frame curtainwall
- ------------------------------------------------------------------------------------------------------------------------------------
75 E.I.F.S.
- ------------------------------------------------------------------------------------------------------------------------------------
76 PARKING GARAGE
- ------------------------------------------------------------------------------------------------------------------------------------
77 Erect structural doubletees
- ------------------------------------------------------------------------------------------------------------------------------------
78 Pour 1st floor slab
- ------------------------------------------------------------------------------------------------------------------------------------
79 Waterproof parking deck
- ------------------------------------------------------------------------------------------------------------------------------------
80 Fire Protection
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 4 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 127
DIGITAL LIGHTWAVE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ID Task Name Duration Start Finish Source
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
81 Electrical and lighting 20d Sep 2 Sep 29 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
82 Painting 10d Sep 30 Oct 13 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
83 Interior Buildout 94d Jul 8 Nov 16
- ------------------------------------------------------------------------------------------------------------------------------------
84 Fire protection rough 25d Jul 8 Aug 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
85 Frame full height walls 10d Jul 8 Jul 21 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
86 Electric overhead rough 18d Jul 8 Jul 31 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
87 Furr out exterior walls 10d Jul 8 Jul 21 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
88 Rough in plumbing 12d Jul 22 Aug 5 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
89 Rough in electrical - full height 15d Jul 22 Aug 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
90 Frame grid height walls 16d Jul 22 Aug 12 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
91 Rough in electrical - furred walls 12d Jul 22 Aug 6 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
92 Hag and finish full height walls 16d Jul 27 Aug 17 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
93 Ductwork rough in 35d Jul 27 Sep 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
94 Install ceramic tile in baths 15d Jul 31 Aug 20 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
95 Set roof top packages 8d Aug 10 Aug 19 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
96 Rough in electrical - grid height walls 12d Aug 13 Aug 28 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
97 Owner cable runs 30d Aug 13 Sep 23 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
98 Install vanity tops 4d Aug 21 Aug 26 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
99 Install plumbing fixtures 15d Aug 27 Sep 16 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
100 Hang and finish grid height walls 18d Aug 31 Sep 23 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 5 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DIGITAL LIGHTWAVE
---------------------------------------------------------------------------------------
1998
---------------------------------------------------------------------------------------
4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 1st Quarter
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
81 Electrical and lighting
- ------------------------------------------------------------------------------------------------------------------------------------
82 Painting
- ------------------------------------------------------------------------------------------------------------------------------------
83 Interior Buildout
- ------------------------------------------------------------------------------------------------------------------------------------
84 Fire protection rough
- ------------------------------------------------------------------------------------------------------------------------------------
85 Frame full height walls
- ------------------------------------------------------------------------------------------------------------------------------------
86 Electric overhead rough
- ------------------------------------------------------------------------------------------------------------------------------------
87 Furr out exterior walls
- ------------------------------------------------------------------------------------------------------------------------------------
88 Rough in plumbing
- ------------------------------------------------------------------------------------------------------------------------------------
89 Rough in electrical - full height
- ------------------------------------------------------------------------------------------------------------------------------------
90 Frame grid height walls
- ------------------------------------------------------------------------------------------------------------------------------------
91 Rough in electrical - furred walls
- ------------------------------------------------------------------------------------------------------------------------------------
92 Hag and finish full height walls
- ------------------------------------------------------------------------------------------------------------------------------------
93 Ductwork rough in
- ------------------------------------------------------------------------------------------------------------------------------------
94 Install ceramic tile in baths
- ------------------------------------------------------------------------------------------------------------------------------------
95 Set roof top packages
- ------------------------------------------------------------------------------------------------------------------------------------
96 Rough in electrical - grid height walls
- ------------------------------------------------------------------------------------------------------------------------------------
97 Owner cable runs
- ------------------------------------------------------------------------------------------------------------------------------------
98 Install vanity tops
- ------------------------------------------------------------------------------------------------------------------------------------
99 Install plumbing fixtures
- ------------------------------------------------------------------------------------------------------------------------------------
100 Hang and finish grid height walls
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 5 Task Critical Task Milestone
Page: 5 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 128
DIGITAL LIGHTWAVE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ID Task Name Duration Start Finish Source
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
101 Install ceiling grid 15d Sep 11 Oct 1 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
102 Install toilet partitions 5d Sep 17 Sep 23 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
103 Electrical trim 16d Sep 24 Oct 15 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
104 Install bath accessories 3d Sep 24 Sep 28 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
105 Paint 25d Sep 25 Oct 29 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
106 HVAC Trim 10d Oct 2 Oct 15 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
107 Install lights 12d Oct 2 Oct 19 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
108 Furniture delivery & unpacking 0d Oct 12 Oct 12 Digital
- ------------------------------------------------------------------------------------------------------------------------------------
109 Start up HVAC 8d Oct 16 Oct 27 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
110 Ceiling tile 11d Oct 28 Nov 11 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
111 Install carpet 8d Oct 30 Nov 10 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
112 Install Owner furniture 0d Nov 2 Nov 2 Digital
- ------------------------------------------------------------------------------------------------------------------------------------
113 Final Clean 3d Nov 12 Nov 16 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
114 Develop punchlist 11d Nov 2 Nov 16 Digital
- ------------------------------------------------------------------------------------------------------------------------------------
115 Beneficial Occupancy 0d Nov 10 Nov 10
- ------------------------------------------------------------------------------------------------------------------------------------
116 Certificate of Occupancy 0d Nov 16 Nov 16
- ------------------------------------------------------------------------------------------------------------------------------------
117 Owner Move In 1d Nov 17 Nov 17 Digital
- ------------------------------------------------------------------------------------------------------------------------------------
118 Punchlist corrections 20d Nov 17 Dec 14 Perry Co.
- ------------------------------------------------------------------------------------------------------------------------------------
119 Final Walk Through 1d Dec 15 Dec 15 Digital
- ------------------------------------------------------------------------------------------------------------------------------------
120 Project Complete 0d Dec 16 Dec 16
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 7 Task Critical Task Milestone
Page: 6 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DIGITAL LIGHTWAVE
---------------------------------------------------------------------------------------
1998
---------------------------------------------------------------------------------------
4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 1st Quarter
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
101 Install ceiling grid
- ------------------------------------------------------------------------------------------------------------------------------------
102 Install toilet partitions
- ------------------------------------------------------------------------------------------------------------------------------------
103 Electrical trim
- ------------------------------------------------------------------------------------------------------------------------------------
104 Install bath accessories
- ------------------------------------------------------------------------------------------------------------------------------------
105 Paint
- ------------------------------------------------------------------------------------------------------------------------------------
106 HVAC Trim
- ------------------------------------------------------------------------------------------------------------------------------------
107 Install lights
- ------------------------------------------------------------------------------------------------------------------------------------
108 Furniture delivery & unpacking
- ------------------------------------------------------------------------------------------------------------------------------------
109 Start up HVAC
- ------------------------------------------------------------------------------------------------------------------------------------
110 Ceiling tile
- ------------------------------------------------------------------------------------------------------------------------------------
111 Install carpet
- ------------------------------------------------------------------------------------------------------------------------------------
112 Install Owner furniture
- ------------------------------------------------------------------------------------------------------------------------------------
113 Final Clean
- ------------------------------------------------------------------------------------------------------------------------------------
114 Develop punchlist
- ------------------------------------------------------------------------------------------------------------------------------------
115 Beneficial Occupancy
- ------------------------------------------------------------------------------------------------------------------------------------
116 Certificate of Occupancy
- ------------------------------------------------------------------------------------------------------------------------------------
117 Owner Move In
- ------------------------------------------------------------------------------------------------------------------------------------
118 Punchlist corrections
- ------------------------------------------------------------------------------------------------------------------------------------
119 Final Walk Through
- ------------------------------------------------------------------------------------------------------------------------------------
120 Project Complete
- ------------------------------------------------------------------------------------------------------------------------------------
Date: Jan 7 Task Critical Task Milestone
Page: 6 of 6 Task Progress Critical Task Progress Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Burt Development Incorporated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 129
EXHIBIT E
EXHIBIT E
PROJECT COSTS SCHEDULE
<TABLE>
<S> <C> <C>
==================================================================================================================
SITE COSTS: LAND $ 1,800,000
CLOSING COSTS $ 36,000
--------------
SUB TOTAL LAND $ 1,836,000
HARD COSTS: SHELL BUILDING $ 4,325,472
TENANT REQUESTED ITEMS PAID FOR BY INCREASED LOBBY ALLOWANCE $ 70,000
INCREASE TO DESIGN BUILD CONTRACT FOR TENANT REQUESTED PRECAST ITEMS $ 188,498
ALLOWANCE FOR TENANT REQUESTED MODIFICATIONS TO EXTERIOR OF BUILDING $ 338,631
ALLOWANCE FOR TENANT REQUESTED MODIFICATIONS TO INTERIOR OF BUILDING $ 233,563
FOUNDATIONS/COVERED ENTRY $ 98,000
INCREASE BUILDING HEIGHT $ 175,000
TENANT IMPROVEMENT ALLOWANCE @ $20.00 PER SQUARE FOOT $ 1,844,500
PARKING STRUCTURE $ 1,085,000
SITE WORK/SITE LIGHTING $ 405,000
LANDSCAPING ALLOWANCE $ 100,000
--------------
SUB TOTAL HARD COSTS $ 8,863,662
SOFT COSTS: ARCHITECTURAL & ENGINEERING, SURVEYS, REPORTS $ 230,562
CONTRACTOR'S BOND $ 68,206
APPRAISAL $ -
TITLE INSURANCE $ 40,000
LEGAL & OTHER $ 60,000
BUILDERS RISK INSURANCE $ 15,000
IMPACT, CONNECTION & CAPACITY FEES $ 270,000
MARKETING COSTS $ -
CONSTRUCTION LOAN FEE $ 134,919
LOAN COMMITMENT FEE $ -
ASSET MANAGEMENT FEE $ -
MISCELLANEOUS & CONTINGENCY $ 230,000
DEVELOPMENT FEE $ 461,237
PROJECT MANAGEMENT $ -
--------------
SUB TOTAL SOFT COSTS $ 1,509,924
SITE COSTS $ 1,836,000
HARD COSTS $ 8,863,662
SOFT COSTS $ 1,509,924
--------------
SUB TOTAL COSTS $ 12,209,586
CONSTRUCTION PERIOD INTEREST $ 505,761
CONSTRUCTION PERIOD INTEREST ON DEFERRED TENANT IMPROVEMENTS $ -
INTEREST RESERVE $ -
REAL ESTATE BROKERAGE COMMISSION $ 1,183,930
--------------
SUB TOTAL $ 1,689,691
TOTAL PROJECT COSTS, INCLUDING ALLOWANCES $ 13,899,277
</TABLE>
<PAGE> 130
BUDGET RECONCILIATION 12/30/97
PRICING ESTIMATES/ALLOWANCES ON DESIGN MODIFICATIONS REQUESTED BY DIGITAL
LIGHTWAVE & ASD
INITIAL BUILDING HARD COSTS (INCLUDE ASE) PER LETTER OF INTENT $
INCREASE BUILDING SIZE 2,225 SF @ ******* $ 236,963
THE FOLLOWING ESTIMATES ARE BASED ON INFORMATION AND SKETCHES PROVIDED BY ASD
AND ARE SUBJECT TO FINAL ENGINEERING AND DESIGN; THEREFORE, EACH ITEM IS
PRESENTED AS AN ALLOWANCE (UNLESS NOTED OTHERWISE).
<TABLE>
<S> <C> <C>
EXTERIOR MODIFICATIONS
THE FOLLOWING TWO PRECAST ITEMS ARE NOT AN ALLOWANCE, COSTS ARE SET FOR TENANT, DESIGN BUILDER
WILL ABSORB ANY INCREASE OR DECREASE IN THE PRICE OF THESE ITEMS:
COLONNADE PRECAST $ 106,330
24' VERTICAL PRECAST "COLUMNS" AT EACH BAY (EXCEPT FRONT SECTIONAL-CURVED AREA) AND
MIDWAY BETWEEN EACH BAY (EXCEPT FRONT SECTIONAL-CURVED AREA) $ 82,850
SOFFITS $ 24,975
SKYLIGHT $ 38,850
SAWTOOTH CORNER CURTAIN WALL $ 31,350
4" RECESSED GLASS DETAIL ON ENTIRE BUILDING $ 20,535
ENTRY CURTAIN WALL-FULL HEIGHT STRUCTURAL GLASS, 5 SEGMENTS, INTERIOR TUBULAR STEEL @ FLOOR 3, $ 222,921
28" FINS, VERTICAL STEEL SUPPORTS
ALL GLASS ENTRY DOORS (3 PAIR) ARE INCLUDED AT NO CHARGE ON PRICE OF ENTRY CURTAIN WALL $ --
------------
SUBTOTAL (ESTIMATE) $ 527,127
5% DEVELOPMENT FEE $ 26,358
============
TOTAL ESTIMATED IMPACT OF EXTERIOR CHANGES $ 563,483 $ 553,483
ATRIUM/INTERIOR MODIFICATIONS
FLOORING $ 77,700
STEEL MODIFICATIONS FOR "RADIUS" LOBBY $ 43,845
INTERIOR LOBBY GLASS WALLS-BUTT GLAZED OR MULLION SYSTEM $ 33,070
SECTIONAL GLASS RAILING WITH STAINLESS STEEL CAP AT 2ND & 3RD FLOOR LOBBY $ 9,980
ELEVATOR DOOR & FRAME UPGRADES $ 11,000
DIRECTORY/GRAPHIC PACKAGE $ 5,550
"TEXTURE" PACKAGE (TENANT SELECTED ITEMS) $ 5,550
CIRCULAR COMMUNICATING STAIRWAY BETWEEN 2ND & 3RD FLOOR $ 36,075
STEEL MODIFICATIONS FOR CIRCULAR COMMUNICATING STAIRWAY $ 21,300
SECTIONAL GLASS RAILING WITH STAINLESS STEEL CAP AT 3RD FLOOR COMMUNICATING STAIRWAY $ 9,620
RAILING FOR COMMUNICATING STAIRWAY $ 12,500
CREDIT FOR LOBBY STAIRWAY $ (38,075)
ENTRANCE MATS $ 3,330
------------
SUBTOTAL (ESTIMATE) $ 233,563
5% DEVELOPMENT FEE $ 11,678
============
TOTAL ESTIMATED IMPACT OF ATRIUM/INTERIOR CHANGES $ 245,240 $ 245,241
LEASE ALLOWANCES
FIRST FLOOR ADDITIONAL LOBBY ALLOWANCE (PER AGREEMENT) $ (70,000)
FIRST FLOOR 1,750SF $20.00 TO ALLOWANCE-EXPANDED LOBBY AREA (AREA SUBJECT TO CONFIRMATION) $ (35,000)
SECOND FLOOR 1,256SF $20.00 TO ALLOWANCE (AREA SUBJECT TO CONFIRMATION) $ (25,120)
THIRD FLOOR 1,256SF $20.00 TO ALLOWANCE (AREA SUBJECT TO CONFIRMATION) $ (25,120)
-----------
SUBTOTAL (ESTIMATE) $ (155,240) $ (155,240)
=========== ===========
ESTIMATED COVERAGE AFTER CREDIT FOR LEASE ALLOWANCES $ 643,585
REVISED ESTIMATE OF HARD COSTS (INCLUDING A & E)
OF CONCEPTUAL BUILDING (MINIMUM BUILDING REQUIREMENTS) $ 9,084,447
INITIAL BUILDING COSTS PER LETTER OF INTENT $(8,184,000)
-----------
TOTAL ESTIMATED INCREASE FOR TENANT REQUESTED MODIFICATIONS & 7,225 SF $ 680,447
TENANT'S OUT OF POCKET COSTS REDUCED BY THE FOLLOWING:
INCREASE RENT $20 FOR INCREASED BUILDING SIZE $ (236,963)
REDUCTION OF C&W COMMISSION $ (247,000)
INCREASE RENT $20 FOR AMORTIZATION OF IMPROVEMENTS $ (280,000)
-----------------------------------------------------------------
ESTIMATED TENANT OUT-OF-POCKET COVERAGE AFTER ABOVE $ 196,485
-----------------------------------------------------------------
</TABLE>
<PAGE> 131
EXHIBIT F
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
BAYSIDE CONCOURSE
****
COUNTY OF PINELLAS
STATE OF FLORIDA
THIS DECLARATION is made this ___ day of _____________, 1998, by
HAYDON-RUBIN DEVELOPMENT INC., a Florida corporation, organized under the laws
of the State of Florida (hereinafter referred to as the "Developer" or
"Declarant").
ARTICLE I
RECITALS
WHEREAS, Developer is the owner of certain real property in the County of
Pinellas, State of Florida, more particularly described in Exhibit "A",
attached hereto and made a part hereto (said real property being hereinafter
referred to as the "Property"); and
WHEREAS, Developer is desirous of subjecting the Property in the manner
and pursuant to the terms set forth in Article III of this Declaration to the
protective conditions, covenants, restrictions, reservations, easements,
assessments, liens, standards and criteria hereinafter set forth; and
<PAGE> 132
WHEREAS, Developer is desirous of providing for the maintenance, upkeep,
repair and replacement of the Common Areas [hereinafter described] in
accordance with the terms and provision set forth in this Declaration;
NOW THEREFORE, Developer, as the present owner and developer of the
Property, hereby declares that the Property, in the manner and pursuant to the
terms of Article III of this Declaration, is and shall be held, transferred
sold, conveyed, leased, and occupied subject to the protective conditions,
covenants, restrictions, reservations, easements, assessments, liens, standards
and criteria which are set forth herein or adopted pursuant to this Declaration
and such conditions, covenants, restrictions, reservations, easements,
assessments, liens, standards and criteria shall run with the land and be
binding upon all successors in interest to any portion of the Property that is
subjected to this Declaration pursuant to Article III of this Declaration.
ARTICLE II
DEFINITION OF TERMS
2.01 "Aggregate Annual Assessment" shall mean the annual assessment
promulgated and established by the Board for the Common Areas as a whole and
shall equal the total of all Annual Assessments(as hereinafter defined) which
are to be collected from all of the Owners in a calendar year.
2.02 "Aggregate Special Assessment" shall mean any special assessment
promulgated and established by the Board from time to time for the entire
Property or portion thereof, other Special Assessments to reimburse the
Association for bringing an Owner of a Building Site into compliance
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with the Declaration as set forth in Section 8.04 of this Declaration and each
such Aggregate Special Assessment shall equal the total of all Special
Assessments (as hereinafter defined) which are to be collected from all of the
Owners affected thereby.
2.03 "Annual Assessments" shall mean those assessments or other charges
which are levied or assessed by the Association (as hereinafter defined) on an
annual basis against each Owner (as hereinafter defined) of a Building Site (as
hereinafter defined) and against each Building Site and the Improvements (as
hereinafter defined) situated thereon and which shall be payable to the
Association, at the election of the Association, in annual, quarterly or monthly
installments. The Annual Assessments shall be the personal liability and
obligation of the Owner of the Building Site affected thereby and a lien and
encumbrance upon such Building Site and all Improvements situated thereon. The
term "Annual Assessments" shall also include interest on such assessments and
charges at the maximum rate per annum permitted by law from the due date
thereof until paid in full, and all costs and fees of collecting any such
Annual Assessments, including without limitation attorneys' and paralegals'
fees, both prior to and on appeal and in bankruptcy proceedings.
2.04 "Articles of Incorporation" shall mean the Articles of Incorporation
of the Association, together with all modifications and amendments thereto.
2.05 "Assessments" shall mean the Annual Assessments and the Special
Assessments.
2.06 "Association" shall mean Bayside Concourse Association, Inc., a not
for profit corporation organized under the laws of the State of Florida.
2.07 "Board" shall mean the duly elected or appointed Board of Directors
of the Association.
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2.08 "Building Site" shall mean Parcel 1 or Parcel 2.
2.09 "By-Laws" shall mean the duly adopted By-Laws of the Association,
together with all modifications and amendments thereto.
2.10 "Common Areas" shall mean (i) the Common Area Parcel (as hereinafter
defined), (ii) the License Area (as hereinafter defined) and (iii) any portion
of a Building Site, if any, designated on the Site Plan (as hereinafter
defined) as a Common Area, together with any Improvements now or hereafter
situated thereon. The Common Areas are for the common use and enjoyment of all
Owners of real property in Bayside Concourse and, initially, an easement over
the Common Area Parcel for all purposes required hereunder shall be granted to
the Association by the Declarant and the rights under the License Agreement
shall be assigned to the Association by the Declarant. Upon the request of an
Owner and the determination that the Common Area Parcel complies with all
applicable governmental rules, regulations and laws relating thereto (subject
to Section 11.13 if any Owner objects), the Common Area Parcel shall be
conveyed by special warranty deed to the Association by the Declarant. The
Common Areas may include, without limitation, the storm water management,
treatment and retention system, irrigation lines, pumps and fountains, streets,
roadways, boardwalks, sidewalks, pedestrian paths and trails, recreational
areas and equipment, lighting fixtures and equipment, utility lines and
equipment, signage, signboards, entrance areas, walls, fences, hedges,
landscaped areas, lawns, greenbelt areas and conservation areas containing
natural bodies of water, vegetation, foliage or fauna.
4
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2.11 "Common Area Parcel" shall mean the lot or parcel designated on the
Site Plan attached hereto as Exhibit "B" as the Common Area Parcel as more
particularly described in Exhibit "C" attached hereto.
2.12 "Conservation Areas" shall mean those areas of the Property
identified as jurisdictional wetlands by any or all of the following; The
Florida Department of Environmental Regulation, The Pinellas County Board of
County Commissioners and the Southwest Florida Water Management District. The
Conservation Areas shall be identified on the Site Plan of the Property.
2.13 "Declarant" or "Developer" shall mean Haydon-Rubin Development Inc.,
a corporation organized under the laws of the State of Florida, and its
successors and assigns, unless the context indicates otherwise.
2.14 "Declaration" shall mean this document and all of the conditions,
covenants, restrictions, easements, reservations, assessments, liens, standards
and criteria set forth herein or adopted pursuant to this Declaration, together
with all modifications and amendments hereto. This Declaration is the
Declaration referred to in the Articles of Incorporation and By-Laws of the
Association.
2.15 "Development Order" shall mean that ceratin Developer's Agreement
dated ____________ by and between Pinellas County, Florida and Declarant, as the
same may be amended from time to time.
2.16 "Director" shall mean a duly elected or appointed member of the Board.
2.17 "Governing Laws" shall mean all laws, statutes, rules, regulations,
codes, ordinances, orders, development orders, letters of interpretation and
directives which have been or hereafter shall
5
<PAGE> 136
be duly adopted by any governmental or quasi-governmental body, agency or
instrumentality, including, without limitation, all zoning and building codes
and ordinances and applicable development of regional impact development orders.
2.18 "Improvements" shall mean and include (i) all buildings,
outbuildings, sheds, accessory buildings, driveways, alleys, curbs, parking
areas, paved areas, loading areas, boardwalks, sidewalks, pedestrian paths and
trails, roads, irrigation lines, pumps and fountains, recreational areas and
equipment, lighting, lighting fixtures and equipment, fences, walls, hedges,
signs, signboards, lawns, landscaping, poles, utility lines, cables and
equipment, sewers, drains, man-made detention or retention areas, radio,
television, telephone or any other reception or transmission antennae, tower,
cable, satellite dish or similar apparatus, or any other structures of any type
or kind, whether situated above or below ground, now or hereafter situated upon
the Property, and (ii) any excavation, grading, fill, ditch, canal, diversion,
culvert, channel, swale, bulkhead, revetment, retaining wall, seawall, wet or
dry pond, dam or other structure or device which retains, stores, directs,
channels, alters or otherwise affects the velocity or flow of water or drainage
from, upon, across or under the Property or any portion thereof, together with
all alterations, improvements, additions or changes thereto.
2.19 "Lender" shall mean any bank, savings and loan, mortgage company,
insurance company or other financial institution or individuals which are
generally engaged in making loans to third parties to finance the acquisition,
development, improvement and/or ownership of real estate.
2.20 "License Agreement" shall mean the License Agreement between Pinellas
County, Florida and Declarant substantially in the form attached hereto as
Exhibit "F".
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2.21 "License Area" shall mean the parcel subject to and governed by the
License Agreement, more particularly described in Exhibit "G" attached hereto.
2.22 "Member" shall mean any person or entity meeting the criteria and
qualifications necessary to become a member of the Association, as set forth in
the Articles of Incorporation and By-Laws.
2.23 "Owner" shall mean the record owner, or, if an entire Building Site
is lease of record for a period of more than five (5) years, then, during the
term of such Lease, "Owner" shall mean the tenant under such lease] and if
there is more than one (1) record owner, then all such record owners
collectively, of fee simple title to any Building Site as disclosed by the
Public Records maintained by the Clerk of the Circuit Court of Pinellas County,
Florida.
2.24 "Parcel 1" shall mean the parcel designated as Parcel 1 on the Site
Plan attached hereto as Exhibit "B" and more particularly described in Exhibit
"D" attached hereto. It is presently contemplated that Parcel 1 will be used
for the development of a hotel.
2.25 "Parcel 2" shall mean the parcel designated as Parcel 2 on the Site
Plan attached hereto as Exhibit "B" and as more particularly described on
Exhibit "E" attached hereto. It is presently contemplated that Parcel 2 will
be used for the development of an office building.
2.26 "Person" shall mean any individual, profit or non-profit corporation,
partnership, limited partnership, association, estate, trust or other entity.
It shall not include any governmental agencies.
7
<PAGE> 138
2.27 "Plat" shall mean the subdivision plat of the Property which shall
identify Parcel 1," "Parcel 2" and the "Common Area Parcel" and which shall be
recorded in the Public Records of Pinellas County, Florida.
2.28 "Preconstruction Development Documents" shall mean all plans,
specifications, site plans, exterior architectural drawings and renderings,
elevations, color renderings, color and texture samples, surveys, plot plans,
descriptions of signage, tree surveys, landscape plans, irrigation plans,
drainage plans, exterior lighting plans, vehicular traffic estimates, and such
other documents as are reasonably required by the Association to be submitted
to the Board of Directors of the Association prior to the construction,
installation, erection, maintenance, reconstruction, improvement or alteration
of any Improvement on any Building Site.
2.29 "Property" shall mean the real property described in Exhibit "A."
2.30 "Site Plan" shall mean the Site Plan attached hereto as Exhibit "B,"
which is comprised of the Common Area Parcel, Parcel 1 and Parcel 2.
2.31 "Special Assessments" shall mean those assessments and charges, other
than Annual Assessments, which are levied by the Association against all or any
portion of the Building Sites in Bayside Concourse and which shall be payable
to the Association, at the election of the Association, on demand or in
installments. The Special Assessments shall be the personal liability and
obligation of the Owner of a Building Site affected thereby and a lien and
encumbrance upon such Building Site and all Improvements situated thereon. The
term "Special Assessments" shall also include interest on such assessments and
charges at the maximum rate per annum permitted by law from the due date
8
<PAGE> 139
thereof until paid in full, and all costs and fees of collecting any such
Special Assessments, including without limitation, attorney's and paralegals'
fees both prior to and on appeal.
ARTICLE III
PROPERTY SUBJECT TO THIS DECLARATION
3.01 Property Subject to Declaration. The Property shall be held,
conveyed, transferred, assigned, sold, encumbered, leased, licensed, occupied
and utilized, subject to this Declaration.
3.02 Persons Bound by Declaration. Each grantee, transferee, assignee,
lessee, sublessee, licensee or occupant of all or any portion of the Property,
together with their respective heirs, successors and assigns, shall be deemed
by their acceptance of a deed, lease or other instrument conveying,
transferring, assigning, leasing, licensing, encumbering or creating any
interest in the Property, or by their occupation of any portion of the
Property, to have covenanted and agreed to fully and timely observe, comply
with and be bound by the Declaration.
ARTICLE IV
PURPOSE OF DECLARATION
The Property is subjected to this Declaration to promote the proper use and
appropriate development and improvement of the Property, together with the
Building Sites situated thereon. It is the intent of this Declaration to provide
conditions, covenants, restrictions, reservations, easements, assessments,
liens, standards and criteria to: maintain Bayside Concourse as an attractive,
park-like setting for the conduct of business and commercial activities with
landscaped, open areas
9
<PAGE> 140
and attractive, high quality structures; promote the desirable use and
appropriate development and improvement of the Property; encourage the erection
of attractive improvements at appropriate locations; encourage reasonably
harmonious and consistent improvement of the Property; promote the proper
management, improvement, maintenance, repair and replacement of the Common Areas
and all Improvements constructed upon the Property and the right to maintain the
rights-of-way, roads and medians; provide generally for the improvement and
utilization of the Property in a high-quality manner. This section shall be used
by the Board as a standard and overall guideline in: judging performance and
interpreting the provisions of this Declaration; granting approval or
disapproval of the development, improvement, utilization, occupation,
maintenance, repair or replacement of any portion of the Property, or any
Improvements situated thereon, by Owners, lessees, sublessees, licensees,
occupants or other users of any portion of the Property; determining the manner
in which, and the purposes for which, the Assessments may be levied, assessed or
utilized by the Association.
ARTICLE V
COMMON AREAS
5.01 Conveyance of Common Area Parcel. Developer hereby grants the
Association and the Owners an exclusive easement over the Common Area Parcel
for the benefit of and appurtenant to Parcel 1 and Parcel 2 for all purposes
required hereunder, including, without limitation, an easement for access,
ingress and egress, drainage, repairs and maintenance. This grant of easement
may not be amended, modified or changed in any way without the written consent
of the Owners. Upon request of an Owner and the determination that the Common
Area Parcel
10
<PAGE> 141
complies with all applicable governmental rules, regulations and laws relating
thereto (subject to Section 11.13 if any Owner objects). Developer shall
convey the Common Area Parcel to the Association by separate instrument, and
such Common Areas shall be conveyed without any representation or warranty,
express or implied, as to the condition or fitness of the Common Areas except
for (i) the warranty that there are no violations of any applicable rules, laws
and requirements of governmental agencies having jurisdiction thereof, (ii) the
warranties of the Developer as to any Improvements which warranties shall be
for the purpose of correcting any construction, design or material defects or
failures of such Improvements and shall be limited to a period of thirteen (13)
months, commencing upon the conveyance of such Common Area to the Association
and (iii) the warranties, if any, of the contractors that construct other
Improvements, which warranties, if any, shall be assigned by Developer to the
Association upon the conveyance of such Common Area to the Association. The
conveyance of fee simple ownership of the Common Area Parcel to the Association
shall be by Special Warranty Deed and shall be subject to the provisions of
this Declaration, prorated real estate taxes for the year of such conveyance,
Governing Laws, matters that an accurate survey would show, and all covenants,
easements, conditions, restrictions and reservations of record. There shall be
no rights of reversion to the Developer for Common Area Parcel. The Association
shall accept title to the conveyances of Common Area Parcel from the
Developer. As is set forth more fully in Section 12.01, subsequent to the
conveyance of the Common Area Parcel to the Association, the Association shall
hold title to the Common Area Parcel for the duration of this Declaration;
provided, however, that, notwithstanding the foregoing, the Association may
assign, transfer, dedicate, convey, lease, sublease, license or create an
easement over all or any part of the Common Area Parcel to any
11
<PAGE> 142
utility company or any public or quasi-public agency or instrumentality upon
obtaining the approval of all relevant governmental authorities having
jurisdiction thereof and so long as any such assignment, transfer, dedication,
conveyance, lease, sublease, license or easement is reasonable necessary for
the development and improvement of the Property.
5.02 Restrictions on Right to Use Common Areas. Subject to the terms of
the License Agreement and except as otherwise provided below to the contrary,
every Owner shall have a nonexclusive right to utilize the Common Areas in
common with all other Owners; provided, however, that no Owner shall prevent,
obstruct or interfere with the use and enjoyment of the Common Areas by the
Developer, the Association or any other Owner. The right of any Owner to
utilize any portion of the Common Areas shall be subject to the following
conditions, covenants, restrictions, and reservations and any modifications,
amendments or additions thereto:
(a) The Common Areas shall be used primarily by the Association for
the construction, operation, repair, replacement and expansion of the storm
water management, treatment and detention system, lighting fixtures and
equipment, utility lines and equipment, signage, signboards, entrance
areas, walls, fences, hedges, landscaped areas, lawns, greenbelt areas,
conservation areas, ingress and egress, private roads, irrigation lines,
pumps, sidewalks, jogging paths, boardwalks and fountains. All other uses
of the Common Areas shall be secondary and subordinate to the
above-described primary uses.
(b) The right of the Association to charge reasonable admission and
other fees for the use of any recreational, sport, amusement, entertainment
or similar facility situated on or upon any portion of the Common Areas.
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<PAGE> 143
(c) The right of the Association to suspend the voting rights for any
period during which any Assessment against such Owner's Building Site remains
unpaid and for any other violation or infraction of this Declaration or the
Articles of Incorporation or By-Laws by such Owner.
(d) The right of the Association to grant easements in, upon, over or
under any portion of the Common Areas for the construction, installation,
repair, maintenance, replacement or relocation of utility lines and equipment
to any Person providing utility services to any portion of the Property or
surrounding properties, including, without limitation, cable television,
security lines, or any other form or means of communication.
(e) The right of the Association to borrow money for the purpose of
improving the Common Areas or acquiring additional Common Area property and to
encumber the Common Areas in connection therewith. Notwithstanding the
foregoing, the Association shall not purchase or encumber any Common Area
property with a cost to the Association in excess of $50,000 nor construct a
new Improvement with a cost to the Association in excess of $50,000 (exclusive
of repair, maintenance, replacement, casualty, restoration or as imposed by a
governmental authority) on any Common Area property until the Board adopts a
resolution in favor of such purchase or such new construction and all of the
Owners of the Property agree to such purchase or such new construction.
(f) The right of the Association to dedicate, assign, transfer,
convey, lease or license all or any part of its right, title and interest in
the Common Area to any utility or to any
13
<PAGE> 144
governmental or quasi-governmental entity, agency or authority, such right
being subject to the approval of all relevant governmental authorities.
(g) The right of the Association to grant access in, upon and over
any portion of the Common Areas to police, fire and emergency vehicles.
5.03 Right Use Common Areas Not Divisible. The rights and privileges of
any Owner with respect to the Common Areas shall only be appurtenant to and only
arise in conjunction with the ownership of a Building Site or other parcel of
property in Bayside Concourse and such interest shall not be divisible from the
ownership thereof. No Owner of any Building Site or other parcel of property in
Bayside Concourse shall have any right, power or authority to separately assign,
transfer, sell, convey, encumber, lease or license all or any part of such
Owner's rights and privileges in the Common Areas, except as an incident to the
assignment, transfer, sale, conveyance, encumbrance, lease or license of a
Building Site.
5.04 Conveyance of Common Areas to Utilities or Public Authorities.
Subject to the terms of the License Agreement and except as set forth below, in
the event is shall become necessary for any utility company or public or
quasi-public agency or instrumentality to acquire all or any part of the Common
Areas for any public purpose, the Board, during the period this Declaration is
in effect, is hereby authorized to negotiate with such utility, agency or
instrumentality for such acquisition and to execute instruments necessary for
that purpose. Except as set forth below, should acquisition of Common Areas by
eminent domain become necessary, only the Board need be made a party thereto,
and in such event the proceeds received shall be held by the Board for the
benefit of the Association.
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<PAGE> 145
Nothing herein shall limit any Owner's right to proceeds for damages to its
Building Site or Property (excluding Common Areas) arising from eminent domain.
5.05 Indemnification by Developer. Developer hereby agrees to indemnify,
defend (with counsel reasonably acceptable to Owners), protect and hold the
Association, the Board and the Owners (including any tenants of Owners) and
each of the Owners' officers, directors, partners, employees, agents,
attorneys, successors and assigns free and harmless from and against any and
all claims, liabilities, damages, costs, penalties, forfeitures, losses, or
expenses (including attorneys' fees) for death or injury to any person or
damage to any property whatsoever arising or resulting in whole on in part,
directly or indirectly, from any and all environmental matters. For purposes
of this indemnity, any acts or omissions of Developer or its employees, agents,
customers, sublessees, assignees, contractors, or subcontractors shall be
strictly attributable to Developer.
ARTICLE VI
THE ASSOCIATION
6.01 Purposes of the Association. The Association has been created for
the purposes and objects and shall exercise those powers set forth herein and
in the Articles of Incorporation of the Association, said Articles of
Incorporation being incorporated herein and made a part hereof by reference.
6.02 Duties of Association. Except for the responsibilities expressly
allocated by this Declaration, the Association shall be liable and responsible
for all matters affecting or relating to the Common Areas, including, but not
by way of limitation, the operation, management, care, repair,
15
<PAGE> 146
maintenance, reconstruction, restoration, renovation, rebuilding, replacement,
improvement and alteration of the Common Areas, and the procurement of all
casualty, public liability, directors' and officers' liability insurance,
workers' compensation and other insurance which the Board determines is
necessary or appropriate relating thereto, and the payment of all taxes,
assessments and utilities relating or furnished to the Common Area.
6.03 Membership in the Association. Membership in the Association and
the voting rights of Members shall be determined in accordance with the terms,
criteria and conditions set forth in the Articles of Incorporation and By-Laws
of the Association, said By-Laws being incorporated herein and made a part
hereof by reference.
ARTICLE VII
DIRECTORS
7.01 Management of Association by Directors. The affairs of the
Association shall be managed and directed by the Board of the Association in
accordance with terms, criteria and conditions set forth in the Articles of
Incorporation and By-Laws. The Board shall consist of five directors; two of
which shall be appointed by the Owner of Parcel 1 and three of which shall be
appointed by the Owner of Parcel 2.
7.02 Duties of Directors. The Directors shall hold office and exercise
those powers and accept those duties and obligations which are set forth in the
Articles of Incorporation and By-Laws.
7.03 Powers of Directors. The Directors shall have and may exercise
those powers and rights set forth in this Declaration and in accordance with
Article IV of this Declaration and in the
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<PAGE> 147
Articles of Incorporation and By-Laws, including, but not by way of limitation,
the power to levy Assessments which shall be the personal obligation of the
Owner of any Building Site to which such Assessment pertains, and which shall
be a lien against such Building Sites, as described more fully in Article VIII
of this Declaration. The Board is authorized to utilize and expend the
Assessments for the purpose of accomplishing, carrying out and effectuating the
general purposes, duties, obligations and powers of the Association set forth
herein and in the Articles of Incorporation and By-Laws.
ARTICLE VIII
ASSESSMENTS
8.01 Creation of the Lien and Personal Obligation of Assessments.
Each Owner of any Building Site or any other parcel of property in Bayside
Concourse by acceptance of a deed or any other means of conveying title to such
property, including, without limitation, any purchaser at any foreclosure or
judicial sale, whether or not it shall be so expressed in such deed or other
means of conveyance, is hereby expressly deemed to covenant and agree to pay to
the Association: (1) the Annual Assessments, and (2) the Special Assessments.
The Assessments shall be a charge and encumbrance against the Building Site and
Improvements situated therein and other property in Bayside Concourse to which
such Assessment relates and shall be a continuing lien and encumbrance upon
such Building Site and Improvements or other property against which such
Assessment is made until paid in full. The Assessments shall also be the
personal obligation of the Person who was the Owner of the applicable Building
Site at the time any Assessment was levied. The liability for the payment of
any Assessment may not be avoided or reduced by any waiver of the use or
benefit of the
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<PAGE> 148
Common Areas or any portion thereof by any Owner or by the failure or refusal
of such Owner to exercise any of the rights and privileges of a Member of the
Association.
8.02 Purpose of Assessments. The Assessments levied by the Association
shall be used for the purpose of carrying out the rights, purposes, powers,
duties and obligations of the Association as defined in this Declaration and in
the Articles of Incorporation and By-Laws, including but not limited to: the
acquisition, management, maintenance, improvement, restoration, renovation,
reconstruction and/or replacement of all or any part of the Common Areas or any
Improvements situated therein; the maintenance of reserve funds for the
maintenance, improvement, restoration, renovation, reconstruction and/or
replacement of all or any part of the Common Areas or the Improvements
situation thereon; the administration and enforcement of the Declaration; and
the repayment of any debt or other obligation of the Association, together with
any interest thereon.
8.03 Determination of Assessments by the Board. At least two (2) weeks
prior to the end of each calendar year, the Board shall meet and adopt a budget
for the Association for the following year. The annual budget shall include
all estimated costs, fees and expenses which the Association expects to incur or
expand during the next calendar year and may include reserve accounts for
future capital expenditures and for deferred maintenance. Subsequent to the
adoption of the annual budget, the Board is authorized to promulgate and
establish the Aggregate Annual Assessment. The Annual Assessment which each
Owner shall pay to the Association shall be computed in accordance with Section
8.05 of this Declaration. In the event any Owner objects to all or any part of
the annual budget or the Aggregate Annual Assessment or both by written notice
to the Board within fifteen (15) days after notice to the Owner of the
Assessment, the matter shall be submitted to Arbitration
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pursuant to and upon the terms and conditions set forth in Section 11.13 of
this Declaration. If no Owner timely and properly objects to the budget or the
Aggregate Annual Assessment, they shall be conclusively deemed accepted by all
Owners.
8.04 Determination of Special Assessments. In addition to the Annual
Assessments authorized above, the Board from time to time may promulgate and
establish an Aggregate Special Assessment reasonably necessary for the purpose
of paying, in whole or in part, the cost of (i) any deferred maintenance, (ii)
the construction, reconstruction, repair, improvement or replacement of any
Improvement which is owned or leased by the Association or which is situated
in, on or under the Common Areas, or (iii) any unforeseen or unbudgeted cost,
expense or obligation of the Association. The portion of the Aggregate
Special Assessment which each Owner shall pay to the Association shall be
computed in accordance with Section 8.05 of this Declaration. Any Special
Assessment collected by the Association shall only be used for the purposes for
which such Special Assessment was adopted by the Board. The Board may also levy
a Special Assessment directly against any Owner to reimburse the Association
for costs incurred in bringing that Owner and Building Site into compliance
with the Declaration, any amendments thereto, the Articles and the Bylaws after
notice to the Owner and an opportunity to be heard by the Board pursuant to
rules of order promulgated by the Board from time to time. In the event any
Owner objects to all or part of any Special Assessment or any Aggregate Special
Assessment or both by written notice to the Board within fifteen (15) days
after notice to the Owner of the Assessment, the matter shall be submitted to
Arbitration pursuant to and upon the terms and conditions set forth in Section
11.13 of this
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Declaration. If no Owner timely and properly objects to the budget or the
Aggregate Annual Assessment, they shall be conclusively deemed accepted by all
Owners.
8.05 Method for Computation of Assessments of Owners. Except for Special
Assessments against any Owner to reimburse the Association for costs incurred
in bringing an Owner and Building Site into compliance, the amount of each
Assessment which shall be paid by each Owner of a Building Site shall be
determined by multiplying the Aggregate Annual Assessment or Aggregate Special
Assessment established by the Board by a fraction, the numerator of which shall
be the total acreage of the applicable Building Site to the nearest one
hundredth (1/100th) of an acre and the denominator of which shall be the total
number of acres then comprising all Building Sites to the nearest one hundredth
(1/100th) of an acre.
8.06 Procedures. All Assessments shall be made in the manner and subject
to the following procedure, to wit:
(a) Notice of all Assessments may be given by mail addressed to the
last known or usual post office address of the Owner of the Building Site and
deposited in the United States mail with postage prepaid.
(b) Each notice of an Assessment shall specify the amount of the
Assessment, the due date for the payment of such Assessment and whether the
Assessment is payable in installments. From and after the date when said
payment or installment payment is due, said payment or installment payment or
the sum of all installment payments, upon the acceleration of the installment
payments by the Board, at its option, shall bear interest at the maximum rate
per annum permitted by law until paid and such payment and interest shall
constitute a lien
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and encumbrance upon the Building Site and Improvements situated thereon to
which such Assessments relates. Said lien and encumbrance shall continue in
full force and effect until the Assessment, together with accrued interest, and
any costs, fees or expenses incurred by the Association are paid in full.
(c) at any time after the due date of any Assessment, the Board or
any officer of the Association so authorized by the Board may, but shall not be
required to, record a notice of lien against the applicable Building Site and
Improvements situated thereon to further evidence the lien established by this
Declaration. The Owner of the Building Site to which such Assessment relates
shall, upon demand of the Association, reimburse the Association for all costs,
fees and expenses incurred in preparing and recording such lien. The lien may,
in the discretion of the Board, be foreclosed upon in accordance with the laws
of the State of Florida. The Board or any officer of the Association so
authorized by the Board may, upon payment in full, cancel or release such
notice of lien at the expense of the Owner of such Building site.
8.07 Cite as to Status of Payment of Assessments. Upon the written
request of the Owner, the Association shall, within a reasonable period of time
not to exceed thirty (30) days, issue a certificate to the Owner and to any
Lender, title company, prospective tenant or prospective purchaser of a
Building Site which states whether there are any delinquent Assessments, the
amount of any such delinquent Assessments and any interest of costs, fees and
expenses which have accrued or been incurred in connection with any such
delinquent Assessments. The Association may charge a reasonable fee for the
issuance of any such certificate. Any such certificate may be relied upon by
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the Person(s) to whom it is addressed and shall be conclusive and binding upon
the Association with regard to any matter stated therein.
8.08 Accumulation of Funds Permitted. The Association shall not be
obligated to spend in any calendar year all Assessments collected in such year
and may establish reserves or carry forward, as a surplus, any balance
remaining. The Association shall not be obligated to apply such reserves or
surplus to the reduction of the amount of the Assessments in any succeeding
year, but may carry forward from year to year such reserves or surplus as the
Board may deem to be necessary or desirable for the financial security or
effectuation of the purposes and powers of the Association.
8.09 Date of Commencement. The Annual Assessments provided for
herein shall commence as of the first day of the month following the
substantial completion of the infrastructure (roads, drainage, utilities and
other items agreed to be provided by Developer), as evidenced by a certificate
of completion from the engineer of record and satisfactory documentation from
applicable governmental agencies having jurisdiction thereof.
8.10 Subordination of Assessment Liens. The lien of the Assessments
herein created shall be subordinate to the lien of any first mortgage of record
which is (i) executed in good faith and for value, (ii) to provide financing or
refinancing for the acquisition and/or development of a Building Site or the
construction, repair or reconstruction of Improvements thereon and (iii) in
favor of a Lender. The sale or transfer of any Building Site and/or
Improvements thereon shall not affect the validity or enforceability of any
Assessment lien; provided, however, that notwithstanding the foregoing, the
sale or transfer of any Building Site and/or the Improvements situated thereon
pursuant to the proper foreclosure of a first mortgage by any lender shall
extinguish the lien of the
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Assessments which became due and payable prior to the date of such foreclosure
sale, unless a notice of such lien was recorded by the Association prior to the
recordation of the mortgage which has been foreclosed. In no event shall the
foreclosure of any mortgage prejudice the rights of the Association to collect
any delinquent Assessment from the prior Owner who shall remain personally
liable for the payment of such Assessments. No foreclosure sale or transfer
shall relieve any Owner or any Building Site or the Improvements situated
thereon from liability for any Assessments which become due subsequent to the
date of such foreclosure sale or from the lien of such Assessments.
8.11 Budget and Contribution. The Board shall annually prepare a
budget pursuant to Section 8.03 of this Declaration which may take into account
the number and nature of replaceable assets, the expected life of each asset,
and the expected repair or replacement cost. The Board may set the required
capital contribution, if any, in an amount sufficient to permit meeting the
projected capital needs of the Association, as shown on the budget, with
respect both to amount and timing by annual assessments over the period of the
budget. The capital contribution, if fixed by the Board, shall be included
within the budget and Assessments as provided herein. A copy of the budget
shall be distributed to each Member.
ARTICLE IX
DESIGN REVIEW
9.01 Adoption of Design and Development Guidelines. The Board
shall promulgate and adopt, in accordance with Article IV of this Declaration,
design and development guidelines relating to the design, development,
clearing, grading, landscaping, construction, installation, erection,
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maintenance, reconstruction, operation, improvement or alteration of any
Building Site or Improvement situated thereon. The Board is further authorized
to implement, modify, amend or supplement any design and development guidelines
from time to time in its sole discretion. In the event any owner objects to all
or any part of the Design and Development Guidelines adopted by the Board, the
matter shall be submitted to Arbitration pursuant to and upon the terms and
conditions set forth in Section 11.13. of this Declaration.
9.02. Variances and Exemptions. The Board is hereby granted the
authority, upon the written request of any Owner or any Person who has executed
a contract to purchase a Building Site to, to grant variances from the
requirements of the Design and Development Guidelines adopted by the Board,
such variances to be granted for good cause shown as determined by the Board in
its sole discretion and in accordance with Article IV of this Declaration. The
Board is additionally granted the authority, upon the written request of any
Owner or any Person who has executed a contract to purchase a Building Site, to
waive the requirements of any design and development guidelines on the finding
that the granting of a waiver will not result in substantial interference with
the use and enjoyment of adjoining Building Sites by the Owners thereof. Such
waiver shall be granted or denied in the sole discretion of the Board.
9.03 Improvements. All Improvements to the Building Sites must comply
with the Design Development guidelines. Subject to approval by the Board, no
Improvements shall be constructed, installed, erected, maintained,
reconstructed, improved, altered or permitted to remain on any portion of the
Property until all required Preconstruction Development Documents have been
submitted to and approved in writing by the Board as set forth more fully in
the Design and Development
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Guidelines promulgated by the Board. Any such Preconstruction Development
Documents shall be submitted in writing over the signature of the Owner of the
Building or its duly authorized agent. Approval or disapproval shall be made in
writing by the Board within thirty (30) days of receipt by the Board of all
Preconstruction Development Documents relating thereto (or such submission
shall be deemed approved) and such approval or disapproval may be predicated
upon the Board's sole opinion as to whether said Improvements conform with the
general character of Bayside Concourse in accordance with the general purposes
set forth in Article IV of this Declaration. The Board's approval or
disapproval may, without excluding other factors, be used upon site dimension,
structural design, conformity and harmony of external design with neighboring
structures, effective location and use of Improvements on neighboring sites on
the Common Areas, relation of topography, grade and finished ground elevation
of the Building Sites; proper facing of the main elevation with effect to
rights of way; conformity of any such Preconstruction Development Documents to
the purpose and plan and intent of the Declaration, and such other factors as
the Board determines is appropriate and necessary. Interior, non-structural
improvements will not be subject to the requirements of this Section 9.03.
9.04 Limitation of Liability. Neither the Developer, the Association,
the Board or any officer of the Association, or any member thereof shall have
any liability to any person submitting any Preconstruction Development
Documents for approval of the Board or to any Owner of the Property by reason
or mistake in judgement, negligence, misfeasance or nonfeasance arising out of
in connection with the approval or disapproval or failure to approve any
Preconstruction Development Documents. Each person submitting Preconstruction
Development Documents to the Board for approval agrees
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by submission of such Preconstruction Development Documents and every Owner,
lessee, sublessee or licensee or any Building Site agrees, by acquiring title
thereto or interest therein to irrevocably waive such Person's right to bring
any legal or equitable action or procedure relating to any such Preconstruction
Development Documents against the Association or any of its members, the Board
or any officers of the Association.
9.05 Inspection of Improvements and Removal of Unauthorized
Improvements. Upon reasonable notice and during a reasonable time of day, or
immediately without notice and at any time in the event of an emergency, any
member of the Board or any officer of the Association may and is hereby granted
an easement to enter upon the Building Site for the purpose of ascertaining
whether the Owner or any lessee, sublessee, licensee or any other person
occupying all or any portion of such Building Site is in compliance with this
Declaration and the Articles of Incorporation and to inspect all Improvements
situated upon such Building Site to determine if such Improvements comply with
this Declaration and the Articles of Incorporation. In the event the Board
determines that any Improvements situated upon any Building Site violates the
Declaration or Articles of Incorporation, the Association shall provide the
Owner of the Building Site with notice of such violation and 30 days to
undertake all actions necessary to completely cure such violation or, to if
undertaken and diligently prosecuted in good faith, such longer period of time
as is necessary to completely cure such violation; provided, however, that if
such violation constitutes a nuisance or a threat of injury or harm to any
Person or property, such violation shall be cured within 5 days from the date of
the Association's notice or within such additional period of time as Board, in
its full discretion, determines is reasonable under the circumstances if such
violation cannot be cured within such 5 day period. In the event the
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Owner of such Building Site fails to completely cure such violation with the
time period set forth above, the Association may enter upon Building Site and
undertake such actions as the Association determines in its sole discretion are
necessary and appropriate to cause such Improvements to be removed from the
Building Site at the sole cost, expense and risk of the Owner of such Building
Site. Neither the Association, the Board, any director nor any member thereof
shall have any liability or obligation to the Owner or any other Person in
connection with the removal of such Improvements. The Association may also
undertake such other actions, at the sole cost and expense of such Owner, to
prospectively ensure full, complete and continuing compliance with the
Declaration and the Articles or Incorporation.
9.06 Compliance with Governing Laws. Notwithstanding anything contained
herein to the contrary, each Person applying to the Board for approval of any
Preconstruction Development Documents relating to any Building Site shall be
solely and completely responsible for determining that such Preconstruction
Development Documents and the proposed development of the Building Site and the
construction of the Improvements on such Building Site shall fully comply with
all Governing Laws. The Board may, but shall have no responsibility or
obligation to, determine whether the Preconstruction Development Documents, the
proposed development of the Building Site and the proposed Improvements comply
with all Governing Laws. No such determination by the Board shall relieve any
such Person for its obligation to independently determine such compliance with
all Governing Laws.
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9.07 Review Fee. The Board may provide that a review fee be paid
to the Association at the time any Preconstruction Development Documents are
submitted for approval to the Board. The requirements for and amount of such
review fees shall be set by the Board.
9.08 Adoption of Maintenance Guidelines. The Board may promulgate
maintenance guidelines to govern the levels of maintenance to be applied to the
Common Areas and, upon approval of such maintenance guidelines by the Board,
such maintenance guidelines shall be deemed adopted. The maintenance guidelines
may be modified, amended or supplemented by the Board from time to time in its
sole discretion. In the event any Owner objects to all or a part of the
maintenance guidelines adopted by the Board, the matter shall be submitted to
Arbitration pursuant to and upon the terms and conditions set forth in Section
11.13 of this Declaration.
ARTICLE X
GENERAL COVENANTS
10.01 Permitted Operations and Uses. The Building Sites are intended
to be used for a hotel on Parcel 1, an office building on Parcel 2 and such
other uses as may from time to time be permitted by the applicable zoning and
development orders, together with accessory facilities relating to such uses.
Nothwithstanding any approval by the Association of any proposed use of a
Building Site, the Owner of the Building Site shall be solely responsible for
determining that such proposed use fully complies with all applicable Governing
Laws.
10.02 Amendment to and Variances From Governing Laws. No Owner shall,
without obtaining the prior written consent of the Board, which consent may be
withheld in the sole discretion
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of the Board, apply for or obtain (i) a change in the zoning classification of
a Building Site, or (ii) any conditional or special use permit relating to the
use of any Building Site, or (iii) any variance from any applicable Governing
Law.
10.03 Prohibited Operations and Uses. Operations and uses not expressly
allowed by zoning operations and uses not expressly allowed by the Development
Order or any other applicable Governing Laws and the following operations and
uses are prohibited within Bayside Concourse:
(a) The erection, operation or use of drilling equipment for or
removal of oil, gas, hydrocarbon substances, minerals, or water (except
that the Developer and the Association may draw and use water).
(b) Residential uses other than hotel uses.
(c) Trailer or mobile home courts.
(d) Junkyards.
(e) Commercial excavation of building or construction materials.
(f) Dumping, storage, disposal, incineration, or reduction of offal
and dead animals.
(g) Dumping, storage, disposal, incineration or reduction of garbage,
refuse, sewage, hazardous wastes or toxic materials, except to the extent
that such activity is incidental to an operation and use permitted
hereunder, and that such incidental activity is in compliance with all
federal, state and local laws, rules and regulations relating thereto.
(h) Stockyard or slaughter of animals.
(i) Recycling or refining of petroleum or its by-products.
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(j) Recycling or smelting of iron, aluminum, tin, zinc, or other
ores.
(k) The raising, breeding, grazing, keeping or slaughtering of
animals, livestock or poultry of any kind.
(l) Sale or storage of explosives.
(m) The use of machinery, devices or apparatus which causes
interference with telephone, television, cable television, or radio
reception within Bayside Concourse
In the event an Owner wishes to use a Building Site for any purpose not
expressly permitted or prohibited herein, the Owner shall submit the proposed
use to the Board and if approved by the Board, in their sole discretion, Owner
must still obtain approval from all applicable governmental authorities with
respect to such use pursuant to Section 10.02 herein.
10.04 Excavation and Removal of Earth. No excavation activities shall be
undertaken on any Building Site except in connection with construction of an
Improvement. Upon the completion of the construction of any Improvement,
exposed openings shall be backfilled and disturbed ground shall be graded and
leveled. Other than in connection with ordinary maintenance and repair, no
earth or fill shall be removed from or added to any Building Site without first
obtaining the written approval of the Board, which approval may be withheld in
the sole discretion of the Board.
10.05 Resubdividing. A Building Site shall be considered as a single
unit, and a Building Site shall not be subdivided, resubdivided or replatted,
unless otherwise approved in writing by the board.
10.06 Other Operations and Uses. Operations and uses which are neither
specifically prohibited nor specifically authorized by the Declaration may be
permitted in a specific case (i) upon application to and obtaining the written
consent of the Board, which consent may be withheld in the
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sole discretion of the Board, and (ii) so long as the proposed operation and
use fully complies with all Governing Laws. Each such application shall be
accompanied by such Preconstruction Development Documents as may be reasonably
required in a particular instance by the Board. If the Board fails either to
approve or to disapprove such use within thirty (30) days after all required
documents, materials, plans and specifications have been submitted to it, such
use shall be conclusively presumed to have been disapproved by the Board.
Neither the Association nor the Board shall have any liability to any Person
relating to the denial of any application for any use which is not expressly
permitted hereunder and each such Person, by virtue of submitting any such
application, hereby irrevocably waives such Person's right to bring any action
or proceeding relating to such application against the Association or any of its
Members, the Board or any Director.
10.07 Nuisances Prohibited. Notwithstanding anything herein to the
contrary, no operation or use of any Building Site shall create a nuisance or
unreasonably interfere with the use and enjoyment of any other Owner of any
Building Site in Bayside Concourse, including, without limitation any excessive
noise, electro-mechanical disturbance, or emission of hazardous or nonhazardous
fumes, dust or smoke in excess of levels allowed by the most restrictive
applicable federal, state and local laws, rules and regulations.
10.08 Completion of Construction. Subsequent to the commencement of
construction of any Improvement on any Building Site, the Owner shall proceed
with due diligence to complete the construction of such Improvement. No
construction, reconstruction, or replacement of any Improvement on any Building
Site shall be abandoned or discontinued for a period of more than thirty (30)
days without the express written permission of the Board. In the event any
existing
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Improvement is damaged or destroyed by fire or any other cause or casualty, the
Owner of the Building Site so affected shall commence the repair, replacement
or reconstruction of such Improvement or the razing, clearing, and complete
removal of such damaged or destroyed Improvements from such Building Site
within seventy-five (75) days after the date such casualty occurred. All
repairs, replacements and reconstruction of damaged or destroyed Improvements
shall be subject to and undertaken in accordance with this Declaration. In the
event any Owner (i) discontinues or abandons the construction, reconstruction
or replacement of any Improvement for a period of more than thirty (30) days
without the express written permission of the Board, (ii) fails to commence the
repair, replacement, reconstruction or razing and clearing of such damaged
Improvements within seventy-five (75) days after the date of any such casualty,
or (iii) fails to proceed with due diligence to complete any such repair,
replacement, reconstruction or clearing of such damaged Improvements, then in
any such event, the Association may, upon thirty (30) days written notice to
the Owner of such Building Site, enter upon such Building Site and raze or
otherwise remove such damaged Improvements or undertake such other actions as
the Board determines in its sole discretion are necessary or appropriate, all
at the sole cost, expense and risk of the Owner of such Building Site.
Neither the Association, the Board, or any Director shall have any liability or
obligation to the Owner or any other Person in connection with such activities.
10.09 Storage of Equipment and Materials. With exception only for the
Developer and the Association, no building materials, supplies or equipment
shall be stored on any Building Site, except in connection with the
construction of Improvements on such Building Site, in which event such
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materials, supplies and equipment may be stored in an orderly manner on such
Building Site during the period of construction of such Improvements.
10.10 Landscape Maintenance. It shall be the duty of the Owner of each
Building Site to keep all grass and other vegetation in first-class condition,
without weeds or disease, and otherwise in accordance with the Design
Development Guidelines, neatly cut, trimmed and maintained. Additionally, all
trees, bushes and other vegetation shall be cut, trimmed and maintained so as
to not obstruct or impair the view at any street intersections. In the event
any Owner does not comply with this covenant within ten (10) days after written
notice of such noncompliance is provided by the Association, the Association is
hereby granted an easement to enter on such Building Site and to cut, trim and
maintain all grass and other vegetation situated thereon, in any manner deemed
appropriate by the Board, at the sole cost, expense and risk of the Owner.
Neither the Association, the Board or any Director shall have any liability
relating to such actions by the Association.
10.11 Condition of Premises. All Owners, lessees, sublessees, licensees
or other occupants of any Building Site shall carefully maintain and repair
such Building Site and all Improvements situated thereon and all streets and
parking areas related thereto in a safe, clean, neat and in first-class
condition and repair at all times and otherwise in accordance with Design and
Development Guidelines. In the event any Owner does not comply with this
covenant within twenty (20) days after written notice of such noncompliance is
provided by the Association, the Association shall have the right to enter on
such Building Site and undertake all maintenance and repair deemed necessary or
appropriate by the Board in its discretion at the sole cost, expense and risk
of such Owner. Neither
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the Association, the Board or any Director shall have any liability or
obligation to the Owner or any other Person relating to such activities by the
Association.
10.12 Governmental and Agency Regulations. Each and every parcel of
land in Bayside Concourse shall be subject to all applicable present and future
Governing laws.
10.13 Rules and Regulations. The Board is hereby authorized to
promulgate, adopt, interpret and enforce rules and regulations which the Board
determines in its discretion are necessary or proper to promote the safety and
welfare of the Owners and other Persons, including, without limitation the
promulgation, adoption and enforcement of rules and regulations (i) limiting or
regulating the speed of all types of vehicles traveling upon the private
streets, roadway, alleys and other paved areas within the Property, (ii)
limiting or restricting the number of all such vehicles provided that such
rules and regulations regarding the number of vehicles are not more restrictive
as to each Owner than the number of vehicles approved by the Board in
connection with submissions made by each Owner pursuant to any design and
development guidelines, (iii) regulating traffic flow by limiting and
restricting the hours of usage and the entry and exit points to Bayside
Concourse for certain types of vehicles and (iv) limiting or restricting the
size, weight and type of vehicles that may use such streets and roadways
provided that such regulations are not more restrictive than those imposed by
applicable governmental authorities for similar streets and roadways serving
similar properties.
10.14 Drainage Lakes and Conservation Areas. Except for the
Association, no Person may drain or remove any water from any lake or other
body of water shown on the Site Plan. Each Owner of a Building Site shall
submit drainage plans and specifications to the Board to the extent that such
plans and specifications change the drainage approved and installed in
connection with the master site
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plan of the Property approved by applicable governmental agencies and such
drainage plans and specifications shall be subject to review and approval of
the Board. All drainage from any Building Site into any lake or other body of
water shown on the Site Plan shall comply with all Governing Laws and all
permits and approvals obtained by the Developer from the Florida Department of
Environmental Regulation and the Southwest Florida Water Management District.
Except as expressly permitted herein, no Person shall dump any solid,
semi-solid or liquid materials or hazardous substances into any lake or other
body of water shown on the Site Plan.
10.15 Easements Across Builiding Sites. Non-exlusive easements for
pedestrian and vehicular access are hereby granted across the paved driveway
areas of the Building Sites, as the same may be amended from time to time, for
the convenience of the Owners, their employees, tenants, guests and invitees.
In connection therewith, each Owner shall be responsible for the repair and
maintenance of such driveway areas on its Building Site. In addition to
easements already granted or dedicated to the Association or as shown on the
Site Plan, an easement or easements may be needed across a Building Site, and an
easement solely for drainage or public or private utility purposes is hereby
granted to the Association across any such Building Site so long as such
easement does not interfere with the Owner's actual or proposed (and approved)
use of the Building site and the appearance of the area comprising such
easement remains unchanged or, if applicable, is restored to its former
appearance or reasonable
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arrangements suitable to Owner are made regarding appearance. In connection
therewith, the Association shall be responsible for the repair and maintenance
of any such easement.
10.16 Minimum Hotel Standards. If the Owner of Parcel 1 constructs a
hotel on Parcel 1, such hotel shall be a licensed first class business-class
suites hotel, which contains not less than 100 guest residential units (the
"Hotel"). The Hotel shall be consistently operated and maintained at a
standard at least equivalent to the operation and maintenance standards
(including staffing, amenities, furniture, fixtures and equipment, and
improvements, and grounds service) as required by the operating agreements and
manuals for franchised, licensed or flag-owned "Hawthorne Suites" suites
hotels, as such suites hotels are maintained and operated as of the date of
this Declaration (collectively, the "Minimum Hotel Standards"). In addition to
the Minimum Hotel Standards, the Hotel shall be operated and maintained in
accordance with the following additional standards (the "Additional Hotel
Standards"):
(a) The Hotel exterior, including without limitation the facade,
windows, landscaping and other architectural features of /Parcel I, shall
be maintained in first-class condition and as required to keep the Hotel
exterior and site decoration in good condition and all plant materials in
a healthy growing and trimmed condition; and
(b) The Hotel shall be operated and maintained in strict compliance
with the present and future requirements of the Hotel's then current
franchisor or flag-affiliation, if any, in all respects, including without
limitation capital improvement upgrades which are imposed on either the
Hotel or within the system with which the Hotel is affiliated. Nothing
herein
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shall be deemed to permit the Hotel to be operated in a manner which is in
any respect below the Minimum Hotel Standards or the Additional Hotel
Standards.
(c) The Hotel at all times either (a) affiliated with a suites
hotel chain of a reputation at least equal in caliber to Hawthorne Suites
as of the date of this Declaration (the "Flag"), shall bear the name of the
Flag or (b) operate under an independent name which does not diminish the
reputation of the Hotel facility.
(d) The Hotel shall, at all times, provide the services, amenities
and facilities usually and customarily found in suites hotels of the same
class in the State of Florida.
10.17. Minimum Office Standards. If the Owner of Parcel 2 constructs an
office building on Parcel 2, such office building, at the time of construction,
shall be a "Class A" office building as that term is generally recognized in
Pinellas County, Florida.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Duration of Declaration. This Declaration and each of the
conditions, covenants, restrictions, reservations, easements, assessments,
liens, standards and criteria set forth herein shall continue and be binding
upon the Developer and upon its successors and assigns and upon each of them,
and all Persons claiming by, through or under the Developer for a period of
thirty (30) years, after which time this Declaration shall be automatically
extended for successive periods of ten (10) years unless one hundred percent
(100%) of the votes cast by members in a duly convened meeting of the
Association vote of termination of this Declaration, (ii) adequate provision is
made for the
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maintenance and upkeep of all private streets and utilities, (iii) all required
approvals or consents of the authorities and agencies and public utilities, if
any, are obtained, and (iv) a majority of the Directors execute and record an
instrument in the public records of Pinellas County, Florida which terminates
the Declaration.
11.02 Amendment of Declaration. This Declaration may be altered,
modified, amended or supplemented, consistent with the purposes set forth in
Article IV of this Declaration, if (i) one hundred percent (100%) of the votes
cast by Members, in a duly convened meeting of the Association, vote to alter,
modify, amend or supplement this Declaration, (ii) all required approvals or
consents of the applicable governmental authorities and agencies and public
utilities, if any, are obtained, and (iii) a majority of the Directors execute
and record in the public records of Pinellas County, Florida an instrument
setting forth such alteration, modification, amendment or supplement.
11.03 Enforcement. Each Owner shall comply strictly with the covenants,
conditions, restrictions, reservations, easements, assessments, liens, rules
and regulations, standards and criteria set forth in this Declaration or as
adopted pursuant to the authority granted under this Declaration. In the event
of a violation or breach, or threatened violation or breach, of any of the
same, the Board or the Association shall have, in addition to all other
available rights and remedies, the right, but not the obligation, to proceed at
law or in equity for the recovery of damages, or for injunctive relief, or
both, and, in connection therewith, the Board or Association shall also be
entitled to recover all costs, fees and expenses, including without limitation,
attorneys' and paralegals' fees both prior to and on appeal, incurred in
connection therewith, together with interest thereon at the maximum rate per
annum permitted by law until paid in full. All of such costs, fees, expenses
and interest shall be a lien
38
<PAGE> 169
and encumbrance upon the Building Site and all Improvements situated thereon of
the defaulting or breaching Owner until paid in full. The failure by the Board
or the Association to enforce any covenant, condition, restriction, reservation,
easement, assessment, lien, standard or criteria set forth herein shall in no
event be deemed a waiver of the right to enforce the same or any other breach or
violation thereof. Each Owner adversely impacted by the breach of violation, or
threatened breach or violation, by any other Owner of any of the covenants,
conditions, restrictions, reservations, easements, assessments, liens, standards
and criteria shall, upon notice to the Association and the failure of the
Association to act within thirty (30) days after the date of such notice, have
the right to proceed at law or in equity to recover damages from or obtain
injunctive relief against such breaching Owner. The Association and the Board
shall have a right of abatement if any Owner fails to remedy any violation or
breach within thirty (30) days after written notice thereof is sent to such
Owner by the Association or the Board; provided, however, that if such breach or
violation constitutes a nuisance or threat or injury or harm to any Person or
property, such breach or violation shall be cured by the Owner within five (5)
days after the date of such notice. The Association and the Board and its
agents and employees, are hereby granted an easement to enter upon any Building
Site, as to which a violation, breach or other condition to be remedied exists,
and to take the actions as it deems necessary or appropriate at the sole cost,
expense and risk of the Owners to abate, extinguish, remove, or repair such
violation, breach or other condition which may exist thereon contrary to the
provisions hereof, without being deemed to have committed a trespass or wrongful
act by reason of such entry and such actions. All costs, fees and expenses
incurred in connection therewith, including attorneys' and paralegals' fees both
prior to and on appeal, together with interest
39
<PAGE> 170
thereon at the maximum rate per annum permitted by law, shall be a binding
personal obligation of such Owner, enforceable at law, and shall be a lien and
encumbrance upon such Owner's Building Site and all Improvements situated
thereon.
Additionally, the Board may, in its reasonable discretion and in accordance
with the procedures set forth in the By-Laws, terminate or suspend any or all
Association rights, interests and privileges of any Member of the Association,
including, without limitation, the suspension of such Member's right to vote,
during the period of time that such Member has (i) failed to pay any Assessment,
fine, cost, expense, interest or other amount which is owed to the Association,
or (ii) breached or violated, the Declaration, the Articles of Incorporation or
By-Laws.
11.04 Remedies Cumulative. All rights and remedies set forth herein shall
be separate, distinct, cumulative and concurrent, shall not be exclusive of any
other right or remedy and shall be in addition to all other rights and remedies
available at law or in equity. The exercise of any right or remedy shall not
preclude, restrict or prohibit the exercise of any other right or remedy.
11.05 Owner's Responsibility and Obligation. Each Owner of a Building Site
shall be responsible for insuring that all lessees, sublessees, licensees,
invitees, agents, employees, contractors, subcontractors or any other Person
claiming by, through or under such Owner, fully complies with and abides by this
Declaration, the Articles of Incorporation and the By-Laws.
11.06 Invalidation of Part. Invalidation of any of this Declaration or any
part thereof by judgments or Court order shall in no way affect any of the other
provisions which shall remain in full force and effect.
40
<PAGE> 171
11.07 Captions. The captions, section numbers and article numbers
appearing in the Declaration are inserted only as a matter of convenience and
shall not be utilized to define, limit, construe or describe the scope or
intent of such sections nor in any way modify or affect this Declaration.
11.08 Notices. Except as otherwise required in this Declaration,
Articles of Incorporation or By-Laws, any notice required or permitted to be
given hereunder shall be in writing and delivered in person or sent by prepaid,
first class mail, or any other delivery service from which a receipt may be
obtained, as follows: (i) All such notices shall be delivered to the Association
at the office, if any, or post office box address of the Association; and (ii)
all such notices shall be sent to any Owner or other Person entitled to notice
at such address as is on file with the Association, which address may be changed
from time to time upon written notice to the Association. All such notices
shall be deemed effective forty-eight (48) hours after mailing or immediately
upon personal delivery thereof.
11.09 Singular Includes Plural: Gender. Whenever in this Declaration
the context so requires, (i) the singular shall include the plural and,
conversely the plural shall include the singular, and (ii) the use of one (1)
gender shall be deemed to include the other gender.
11.10 Governing Law. This Declaration shall be construed in accordance
with and governed by the laws of the State of Florida.
11.12 Interpretation. The terms and conditions of this Declaration, the
Articles and the By-Laws are intended to be and shall be construed consistent
with one another. However, in the event of a conflict between this Declaration
and the Articles and By-Laws, to the extent permitted by law, the terms and
provisions of this Declaration shall control.
41
<PAGE> 172
11.3 Arbitration. In the event that any Owner Objects to any matter
expressly providing for resolution under this Declaration, including without
limitation, Annual or Special Assessments, the budget, or any decision, then
such objection shall be resolved in accordance with this Section. In the event
of such objection, any Owner may commence arbitration hereunder by notifying
the others in writing of its election to do so. Within ten (10) days after
that notice, the Owners will use reasonable efforts to resolve any such
disagreement. If the Owners fail to resolve such disagreement within such ten
(10) day period, then within five (5) days thereafter, the Owners shall attempt
to agree on the selection of a natural person with at least five (5) years
experience in managing class A commercial office or multi-use parks in the
Tampa Bay area who has performed no work for any Owner within the past ten (10)
years (a "Property Manager"). If the Owners timely agree on a Property
Manager, that person shall be deemed the arbiter hereunder ("Arbiter"). If the
Owners fail to agree on a Property Manager within such five (5) day period,
each shall notify the other within such five (5) day period of its choice of
Property Manager, and the individuals so named shall within ten (10) days from
the expiration of the five (5) day period agree on a third Property Manager
qualified under the criteria set forth above. If the Owners fail to notify the
other within the five (5) day period of its selection of a Property Manager, the
Property Manager timely selected with notice thereof timely given to the other
party, shall be deemed the Arbiter. Within ten (10) days after the selection of
the Arbiter shall meet with the Directors (which meeting, at the Arbiter's
election, shall occur either separately or together), and review any written
material submitted by the Owners. The Arbiter shall apply the goals and
objectives set forth in this Declaration in making any determination hereunder.
No later than fifteen (15) days after the selection of the Arbiter, the Arbiter
42
<PAGE> 173
shall advise the Owners in writing of its determination. Except in the case of
fraud, the decision of the Arbiter shall be conclusive and binding on the
Owners.
In the event the Owners submit any disagreement to an Arbiter for
resolution as provided above, the Owners will share responsibility for the fees
and expenses of the Arbiter as follows:
(1) If the Arbiter resolves all of the disagreements in favor of
one Owner, the other Owner will be responsible for all of the fees and expenses
of the Arbiter, or
(2) In all other cases, the fees and expenses of the Arbiter shall
be shared equally by each Owner.
IN WITNESS WHEREOF, the parties have hereto subscribed their signatures
the day and year first above written.
Witnesses HAYDON-RUBIN DEVELOPMENT INC.,
a Florida corporation
By:
- ---------------------------------- --------------------------------------
Name: Name:
----------------------------- ---------------------------------
(Print or Type Name) Title:
--------------------------------
- ----------------------------------
Name:
-----------------------------
(Print or Type Name)
STATE OF FLORIDA
COUNTY OF PINELLAS
The forgoing instrument was acknowledged before me this ____ day of ______,
1997 by ________________ as ________________ of _____________________, a
_______________, on behalf of the __________________. He/she is personally
known to me or has produced _________________ as identification.
---------------------------------------
NOTARY PUBLIC
Print Name:
----------------------------
My Commission Expires:
43
<PAGE> 174
EXHIBIT G
TERMS OF SALE AND PURCHASE
FOR PURCHASE OPTION
1. Agreement. The terms set forth in this Exhibit G shall be valid and
effective only if Tenant exercises its Option in accordance with Section 26 of
the attached Lease Agreement. Upon such exercise, Landlord agrees to sell, and
Tenant agrees to purchase, the Demised Premises in accordance with, and subject
to, the terms and conditions set forth herein. Unless otherwise defined in this
Exhibit G all defined terms shall have the same meaning as set forth in the
attached lease Agreement.
A. Deposit. contemporaneously with delivery of the Purchase
Option Notice to Landlord, Tenant shall deliver a deposit in the amount
of $300,000.00 (the "Deposit" in accordance with the following
provisions. Tenant shall deliver the Deposit in the form of cash, wire
transfer or check (a "Chase Deposit") deposited with a third party
escrow agent (i.e. not Landlord or an affiliate of Tenant). The
Deposit shall be held, applied and disbursed, as applicable, in
accordance with the terms of this Exhibit G. The Tenant shall have the
right, at its election, either to have the Cash Deposit applied
against the Purchase Price (as hereinafter defined) or to instruct the
escrow agent to return the Cash Deposit to Tenant without set off
against the Purchase Price.
II. Purchase Price. The total purchase price for the Demised Premises
shall be $15,436,963.00.
III. Property. As used in this Exhibit G, the term "Property" shall
mean and be deemed to include (i) the Demised premises,including appurtenances,
rights, privileges and easements benefitting or pertaining to the Property,
(ii) the Landlord's work and Tenant Improvements, including all fixtures,
equipment, vehicles, inventory, supplies, tools and other personal property
used in connection with the operation of, or located at the Property, other
than those items already owned by Tenant, (iii) all of Landlord's rights in or
to condemnation awards and/or insurance proceeds to the extent not applied to
repair or restoration, (iv) all other tangible and intangible property or
rights owned by Landlord or in which Landlord has an interest in connection
with its ownership and operation of the Property and rights described in
preceding clauses (v), (ii), and (iii), including all of Landlord's right,
title and interest in and to any easements, Landlord's rights under the
declaration that are incident to the ownership of the Property and any and all
warranties, guaranties, claims, causes of actions, deposits escrows, refunds
licenses permits or certificates (including certificates of occupancy) relating
to the Property.
IV. Representations Warranties and Covenants.
A. By Landlord. As of the date of Purchaser's Option Notice
and the Closing Date (as hereinafter defined), Landlord represents and
warrants to Tenant and covenants and agrees with Tenant the following:
<PAGE> 175
b. Deliver to Tenant a fully executed and updated (dated no earlier
than the date of Tenant's Option Notice) Association Certificate
reasonably satisfactory to Tenant;
c. Assign, in writing, transfer and deliver to Tenant all licenses
permits and certificates in the business and other licenses and
permits in the possession or control of Landlord related to the
Property;
d. Execute, acknowledge and deliver to Tenant a Bill of Sale and
Assignment assigning, transferring and conveying to Tenant all of
Landlord's right, title and interest in and to all property that has
not been conveyed pursuant to another closing delivery described
above. With respect to all documents, assigning, transferring or
conveying the Property to Tenant (excluding only the need which shall
be in the form described in Section 6.2.1 above), all such
assignments, transfers and conveyances shall be made with special
warranty of title free and clear of all liens and encumbrances in "as
is, where is" condition;
e. Deliver to Tenant all documents, records, files, books and
records pertaining to the ownership, use or operation of the Property
not therefore delivered; and
f. Execute, acknowledge and deliver as appropriate, all additional
documents which may be necessary or appropriate to carry out the
provisions of this Agreement including, without limitation, a
settlement statement and any construction lien affidavits or other
items necessary to permit Tenant to obtain the specified title
insurance.
2. By Tenant. At Closing, the Tenant shall take each of the
following actions:
a. Deliver to the Title Agent conducting Closing funds sufficient to
complete Closing in accordance with this Exhibit (i.e., the Purchase
Price, subject to any adjustments required by this Agreement); and
b. Execute, acknowledge and deliver as appropriate, all additional
documents which may be necessary or appropriate to carry out the
provisions of the contract evidenced by this Exhibit G including,
without limitation, a settlement statement.
C. Location of Closing. Closing shall be conducted on the Closing Date in
a location mutually agreeable to Landlord and Tenant, or in the absence of
mutual agreement, in the offices of Hill, Ward & Henderson, P.A.
D. Closing Cost Adjustments and Prorations. Landlord shall pay for
documentary stamp taxes on the deed and owner's title insurance for the benefit
of Tenant and Tenant shall pay for the recording fee for the deed. The Rent
(including, without limitation, Base Rent and Operating Expenses) shall be
adjusted as of the day immediately preceding the Closing Date. Each party shall
pay its own attorneys' fees.
<PAGE> 176
1. All of the covenants, representations, warranties and
provisions contained in Section 22.2(a) incorporated herein by this reference,
remain true and correct in all material respects.
2. Landlord is not a foreign person under Section 1445 of the
Internal Revenue Code of 1986, as amended, and Landlord shall deliver to Tenant
a customary non-foreign person certification at Closing.
3. Except for the documents evidencing the Permitted Encumbrances
and except for written agreement that are capable of being terminated upon no
more than thirty (30) days prior notice without payment (including payment of a
termination fee), liability or expense to Tenant, true and complete copies of
which shall be delivered to the Tenant (the "Terminable Agreements"), there are
no agreements or understandings (written or unwritten) that would materially
affect ownership, use, operation, sale, lease or other disposition of the
Property. Upon written request from Tenant: Landlord shall immediately cause the
Terminable Agreements identified in Tenant's request to be terminated; Landlord
shall pay or satisfy all obligations (including, without limitation, any
termination fees) and liabilities arising out of such termination(s); Landlord
shall provide Tenant with written evidence that such agreements have been
terminated and that the related obligations and liabilities have been satisfied.
4. Landlord has not received (i) any notices of violation
(or alleged violation) of Laws, any Permitted Encumbrance, or any other
agreement relating to the Property that would materially affect ownership, use,
operation, sale, lease or other disposition of the Property, (ii) any notice of
condemnation or threatened condemnation of all or any portion of the Property
and/or (iii) any notice of pending or threatened litigation with respect to all
or any portion of the Property
5. Landlord covenants to continue to maintain the Property and
comply with all covenants and provisions contained in the Lease Agreement until
Closing has been consummated and Landlord further covenants not to encumber or
in any way alter, impair or affect title the Property without Tenant's prior
written consent and not to take any action that would impair, hinder or delay
consummation of the transactions described in Exhibit G no later than thirty
(30) days after receipt of Purchaser's Option Notice, Landlord shall cause
First American Title Insurance Policy Corporation by and through its authorized
agent, Hill, Ward & Henderson, P.A. ("Title Agent") to issue a commitment to
issue an ALTA Owner's Title Insurance Policy (dated no earlier than the date of
Purchaser's Option Notice and containing only the permitted Encumbrances as
exception) to be delivered to Tenant. The title commitment shall be "marked up"
to delete the gap in coverage and insure title (without additional exceptions)
and deliver to Tenant at Closing.
6. No later than five (5) business days after receipt of
Purchaser's Option Notice, Landlord shall deliver to Tenant true and complete
copies of any and all surveys (including boundary and "as built" surveys),
plats, plans (including architectural plans and drawings), soil tests and any
other documents or information in Landlord's possession or control, excluding
only those documents and information that had been provided to Tenant as of the
Effective Date of the Lease Agreement.
<PAGE> 177
(provided, however, that Landlord shall have the obligation under
this provision to deliver to Tenant any subsequent amendment or
superseded versions of such previously delivered documents and
information).
B. By Tenant. As of the date of Purchaser's Option Notice and the
Closing Date, Tenant represents and warrants to the Landlord and covenants
and agrees with Landlord the following:
1. All of the covenants, representations, warranties and
provisions contained in Section 22.22(b), are incorporated herein by
this reference and remain true and correct in all material respects.
2. Tenant covenants to continue to comply with all covenants
and provisions contained in the Lease Agreement until Closing,
including, without limitation, payment of Rent and Additional Rent.
V. Conditions Precedent to Closing. As of the date of Closing, each of
the following shall be satisfied (or at Tenant's sole option, waived in writing
by Tenant) as condition precedent to Tenant's obligation to complete closing
(individually, a "Closing Condition"; collectively, "Closing Conditions"): (i)
all of the provisions of Section 4.A of this Exhibit G shall remain true and
correct (without exception or qualification) or shall have been satisfied as
context requires, and (ii) Landlord shall have delivered to the Title Agent who
will conduct Closing all documents and information required to be delivered in
connection with Closing. If, as of the Closing Date, any Closing Conditions
shall not have been satisfied, Tenant shall have the option, at its election, to
(a) waive such unsatisfied Closing Condition and proceed with Closing or (b)
terminate the contract evidenced by this Exhibit G and receive a full refund of
the Deposit, or (c) pursue its remedies at law for Landlord's breach of any
representation or warranty set forth in Section 4.A above or Landlord's failure
to perform its obligations under clause (ii) of the preceding sentence.
VI. Closing. The term "Closing" shall mean consummation of the
transactions described in this Exhibit G and the term "Closing Date" shall mean
the date on which Closing occurs.
A. Closing Date. The Closing shall occur (i) no earlier than twenty
(20) days after receipt of Purchaser's Option Notice (the "Inside Closing
Date"); (ii) no later than thirty (30) days after receipt of Purchaser's
Option Notice (the "Outside Closing Date"); and (iii) within the time
period established by preceding clauses (i) and (ii), the Closing Date
shall be a date designated by Tenant upon no less than five (5) business
days prior written notice to Landlord. Time is of the essence with respect
to all terms and conditions of the contract evidenced by this Exhibit G.
B. Closing Delivery.
1. By Landlord. At Closing, Landlord shall take each of the
following actions:
a. Execute, acknowledge and deliver to Tenant a good and
sufficient Special Warranty Deed conveying to Tenant fee simple
title to the Property subject only to the Permitted Encumbrances;
<PAGE> 178
b. Deliver to Tenant a fully executed and updated (dated no
earlier than the date of Tenant's Option Notice) Association
Certificate reasonably satisfactory to Tenant;
c. Assign, in writing, transfer and deliver to Tenant all
licenses permits and certificates in the business and other licenses
and permits in the possession or control of Landlord related to the
Property;
d. Execute, acknowledge and deliver to Tenant a Bill of Sale
and Assignment assigning, transferring and conveying to Tenant all of
Landlord's right, title and interest in and to all property that has
not been conveyed pursuant to another closing delivery described
above. With respect to all documents, assigning, transferring or
conveying the Property to Tenant (excluding only the deed which shall
be in the form described in Section 6.2.1 above), all such
assignments, transfers and conveyances shall be made with special
warranty of title free and clear of all liens and encumbrances in "as
is, where is" condition;
e. Deliver to Tenant all documents, records, files, books and
records pertaining to the ownership, use or operation of the Property
not therefore delivered; and
f. Execute, acknowledge and deliver as appropriate, all
additional documents which may be necessary or appropriate to carry
out the provisions of this Agreement including, without limitation, a
settlement statement and any construction lien affidavits or other
items necessary to permit Tenant to obtain the specified title
insurance.
2. By Tenant. At Closing, the Tenant shall take each of the
following actions:
a. Deliver to the Title Agent conducting Closing funds
sufficient to complete Closing in accordance with this Exhibit (i.e.,
the Purchase Price, subject to any adjustments required by this
Agreement); and
b. Execute, acknowledge and deliver as appropriate, all
additional documents which may be necessary or appropriate to carry
out the provisions of the contract evidenced by this Exhibit G
including, without limitation, a settlement statement.
C. Location of Closing. Closing shall be conducted on the Closing Date
in a location mutually agreeable to Landlord and Tenant, or in the absence of
mutual agreement, in the offices of Hill, Ward & Henderson, P.A.
D. Closing Cost Adjustments and Prorations. Landlord shall pay for
documentary stamp taxes on the deed and owner's title insurance for the benefit
of Tenant and Tenant shall pay for the recording fee for the deed. The Rent
(including, without limitation, Base Rent and Operating Expenses) shall be
adjusted as of the day immediately preceding the Closing Date. Each party
shall pay its own attorneys' fee.
<PAGE> 179
VII. Default. If Landlord defaults under the terms of the contract
evidenced by this Exhibit G, Tenant shall be entitled to exercise all of its
rights and remedies under Florida law. If Tenant shall fail to perform its
obligation under this contract evidenced by this Exhibit G to make full Closing
in accordance with the terms hereof, Landlord shall be entitled to terminate
this contract by written notice to Tenant and retain the Deposit as its sole
remedy in which event the Lease Agreement shall remain in full force and effect.
<PAGE> 180
EXHIBIT H
- --------------------------------------------------------------------------------
ISSUING BANK: NationsBank, N.A. ISSUE DATE:______________
EXPIRY DATE: ___________________
AMOUNT: $2,500,000.00
BENEFICIARY: Orix Hogan Burt Pinellas Venture
c/o Hogan Burt
101 E. Kennedy Blvd., Suite 4000
Tampa, Florida 33602
Attn: James T. Burt, II
DEAR GENTLEMEN:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. ____, IN
BENEFICIARY'S FAVOR FOR THE ACCOUNT OF DIGITAL LIGHTWAVE, INC., 601 CLEVELAND
STREET, 5TH FLOOR, CLEARWATER, FLORIDA 33755, UP TO THE AGGREGATE TOTAL AMOUNT
OF U.S. $2,500,000.00 AVAILABLE BY PAYMENT, AGAINST BENEFICIARY'S SIGHT
DRAFT(S) DRAWN ON NATIONSBANK, N.A., ACCOMPANIED BY THE FOLLOWING DOCUMENT:
A WRITTEN STATEMENT PURPORTEDLY SIGNED BY AN OFFICER OR ANY AUTHORIZED
AGENT OF THE BENEFICIARY WITH THE FOLLOWING WORDING:
TENANT IS IN DEFAULT IN THE AMOUNT OF $__________ UNDER THAT CERTAIN LEASE
AGREEMENT BEARING AN EFFECTIVE DATE OF JANUARY 9, 1998 BY AND BETWEEN THE
APPLICANT AS TENANT AND BENEFICIARY AS LANDLORD.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY
EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR FROM THE
PRESENT OR ANY FUTURE EXPIRATION DATE UNLESS AT LEAST (30) THIRTY DAYS PRIOR TO
SUCH DATE, WE SHALL NOTIFY YOU IN WRITING AT THE ABOVE ADDRESS BY REGISTERED
MAIL OR COURIER SERVICE THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT FOR
SUCH ADDITIONAL PERIOD. UPON RECEIPT BY YOU OF SUCH NOTICE YOU MAY DRAW UNDER
THIS LETTER OF CREDIT ON OR BEFORE THE THEN CURRENT EXPIRATION DATE AGAINST
PRESENTATION OF YOUR SIGHT DRAFT DRAWN ON US ACCOMPANIED BY THE WRITTEN
STATEMENT ABOVE.
THIS LETTER OF CREDIT MAY BE SUCCESSIVELY TRANSFERRED IN FULL (BUT NOT IN PART)
BY THE ISSUING BANK PROVIDED THAT YOU DELIVER TO US OUR WRITTEN FULL TRANSFER
FORM M-4 (M-4 ATTACHED OR TO FOLLOW BY MAIL). THE ORIGINAL LETTER OF CREDIT
TOGETHER WITH ALL ORIGINAL AMENDMENTS (IF ANY) MUST BE RETURNED TO US WITH THE
COMPLETED TRANSFER FORM AND PAYMENT OF OUR CUSTOMARY CHARGES.
ANY DRAFT DRAWN UNDER THIS CREDIT MUST BE MARKED "DRAWN UNDER IRREVOCABLE
STANDBY LETTER OF CREDIT NO. ISSUED BY NATIONSBANK, N.A."
UNLESS OTHERWISE EXPRESSLY STATED THIS LETTER OF CREDIT IS SUBJECT TO THE 1993
REVISION OF THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS OF THE
INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION NO. 500).
WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE
<PAGE> 181
TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED ON PRESENTATION TO US AT
18167 U.S. HWY 19 NORTH, SUITE 600, CLEARWATER, FLORIDA 33764, ATTN: COMMERCIAL
BKG DEPT., OR 901 MAIN STREET, 9TH FLOOR, DALLAS, TEXAS 75202-0483, ATTN:
LETTER OF CREDIT DEPT., ON OR BEFORE ________________, THE EXPIRATION DATE OR
ANY AUTOMATICALLY EXTENDED EXPIRATION DATE.
<PAGE> 182
EXHIBIT I
DRAFT FORM
IRREVOCABLE LETTER OF CREDIT
Number: Date: January 30, 1998
----------------------
Expiration Date: Amount: $1,000,000
------------- ----------
To: Digital Lightwave, Inc. (Beneficiary)
601 Cleveland St., 5th Floor
Clearwater, FL 34615
Gentlemen:
We hereby issue out IRREVOCABLE LETTER OF CREDIT No. _____________ in your
favor for the account ORIX Real Estate Equities, Inc. up to the aggregate
amount of $1,000,000.00 available by your drafts at sight drawn on The Sumitomo
Bank, Ltd. Chicago Branch with the original Letter of Credit for our endorsement
and accompanied the following:
A statement from the Beneficiary that ORIX Hogan-Burt Pinellas Venture
("Landlord") is in default in the amount of $ ___________, under that
certain Lease Agreement bearing an effective date of January 9, 1998 by
and between the Landlord and the Beneficiary as Tenant.
Partial drawings are permitted.
This letter of credit expires at this office on [January 25, 1999].
In the event that the expiry date of this Letter of Credit has not been extended
to a date on or after six months from the Substantial Completion Date and the
Landlord's Work and Tenant Improvements have not been delivered, then in
addition to any other basis upon which you otherwise may draw on this Letter of
Credit, and in lieu of the statement referred to above, you may draw on this
Letter of Credit at any time during the thirty (30) day period prior to the
expiry hereof.
Except so far as otherwise expressly stated herein, this Letter of Credit is
subject to the "Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500.
We hereby agree with you that a draft drawn under and incompliance with the
terms of this Letter of Credit will be duly honored if presented to us on or
before the above stated expiration date.
<PAGE> 1
EXHIBIT 10.11
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT ("First Amendment") is made as of the ____ day of
February, 1998, by and between ORIX HOGAN - BURT PINELLAS VENTURE ("Landlord")
and DIGITAL LIGHTWAVE INC. ("Tenant")
R E C I T A L S
a. Landlord and Tenant have entered into that certain Lease Agreement
with an Effective Date of January 14, 1998 (the "Lease").
b. All of the defined terms used in the Lease shall have the same
meaning in this First Amendment.
c. Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth in this First Amendment.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other
valuable consideration, Landlord and Tenant agree as follows:
1. The Recitals are incorporated herein and made a part hereof by
this reference.
2. The Substantial Completion Date as set forth in Section 2.5(e) of
this Lease and all construction delivery dates and construction
deadlines contained in Exhibit D of this Lease are hereby extended
for a period of fifteen (15) days.
3. Section 2.13(a) is hereby amended by dividing the $1,844,500.00
Tenant Improvement Allowance into two components, as follows: (i)
Landlord hereby agrees to provide the amount of $944,500.00
($10.24 per square foot for 92,225 square feet) for the Tenant
Improvement Allowance, and (ii) Tenant hereby agrees to provide
$900,000.00 for the Tenant Improvement Allowance, such amount
shall be deposited by Tenant into a separate interest bearing
escrow account to be held in escrow by Landlord as trustee to
secure Tenant's obligations hereunder upon thirty (30) days after
receipt of written notice from Landlord, provided, however, in no
event shall such $900,000.00 escrow deposit be made earlier than
June 15, 1998. In connection therewith, it is understood and
agreed that the $944,500.00 Landlord component of the Tenant
Improvement Allowance will be applied first to payment of the
Tenant Improvement Allowance and then the $900,000.00 Tenant
component of the Tenant Improvement Allowance will be withdrawn as
needed from the escrow
<PAGE> 2
account and applied to payment of the Tenant Improvement
Allowance. Payments shall be disbursed from the escrow account
upon Landlord's submission of an invoice to Tenant notifying
Tenant that such amounts are due under the Tenant component of the
Tenant Improvement Allowance. Tenant's failure to promptly make
the $900,000 escrow deposit as required hereunder shall constitute
an Event of Default under this Lease and entitle Landlord to draw
such amount under the Letter of Credit on the terms and conditions
set forth in Section 27 of this Lease. If any portion of the
$900,000.00 escrow account has not been disbursed within sixty
(60) days after Substantial Completion, such undisbursed portion
shall be returned to Tenant by Landlord, together with all
interest accrued thereon.
4. Section 3.1(a)(i) is hereby amended to reduce the rent from
"$923,154.00 per annum ($14.94 per Rentable Square Foot") to
"$829,554.00 per annum ($13.43 per Rentable Square Foot)".
5. Subsection (i) of the second paragraph of Section 3.1(a) is
hereby amended to reduce the Base Rent for the Second Lease Year
from "$1,400,897.76 per annum ($15.19 per Rentable Square Foot)"
to "$1,307,297.76 per annum ($14.175 per Rentable Square Foot)".
6. Section 27 is hereby amended to reduce the original stated amount
of the Letter of Credit to be provided by Tenant thereunder from
"$2,500,000.00" to "$2,300,000.00", and the amount of the
replacement Letter of Credit for the "Second Lease Year" is
changed from "$2,375,000.00" to "$2,300,000.00".
7. Except as expressly amended by this First Amendment, all the
terms and conditions of the Lease shall remain in full force and
effect and are hereby ratified and confirmed by the parties
hereto.
8. This First Amendment may be executed in separate counterparts
(facsimile transmission of signature pages shall be acceptable),
each of which shall be deemed an original and all of such
counterparts together shall constitute one and the same
instrument.
9. The delivery dates for the letters of credit referenced in
Section 27 and Section 29 of this Lease are hereby extended to
February 20, 1998.
10. Exhibit G of the Lease is hereby amended to reduce the Purchase
Price as set forth in Section II thereof from "$15,436,963.00" to
"$14,536,963.00".
- 2 -
<PAGE> 3
IN WITNESS WHEREOF, the foregoing is entered into as of the date first
above written.
ORIX HOGAN BURT PINELLAS VENTURE,
a Florida general partnership
By its sole general partners:
By: Hogan - Burt DOT, Inc., a
Florida corporation
By:
-------------------------
Name: Name:
--------------------- --------------------
Title:
-------------------
Name: (corporate seal)
---------------------
Dated: , 1998
------------------
By: ORIX Pinellas, Inc., an Illinois
corporation
By:
-------------------------
Name: Name:
--------------------- ---------------------
Title:
--------------------
Name: (corporate seal)
---------------------
Dated: , 1998
------------------
<PAGE> 4
TENANT:
DIGITAL LIGHTWAVE, INC.
By: (SEAL)
------------------------------
Name: Name:
-------------------- ------------------------------
Title:
-----------------------------
Name: Dated:
-------------------- --------------------------------
<PAGE> 1
EXHIBIT 10.12
FIRST AMENDMENT TO LEASE
1. PARTIES
1.1 THIS AGREEMENT made the ______day of _____,1997 is between
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.("Lessor") whose
address is c/o Cali Realty Corporation, 11 Commerce Drive,
Cranford, New Jersey 07016 and DIGITAL LIGHTWAVE, INC.
("Lessee"), whose address is 601 Cleveland Street, 5th
floor, Clearwater, Florida 34615
2. STATEMENT OF FACTS
2.1 The parties have previously entered into a Lease dated _____
("Lease") covering approximately 8,044 gross rentable
square feet ("Premises") in the building located at 1340
Campus Parkway, Building B, Wall, New Jersey ("Building");
and
2.2 Lessee desires to occupy a portion of the third (3th) floor
of 1350 Campus Parkway, Wall, New Jersey on a temporary
basis.
3. AGREEMENT
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, Lessor and Lessee agree as
follows:
3.1 Subject to all of the terms and conditions of the Lease
covering the Premises, except as set forth herein, Lessor
hereby leases to Lessee and Lessee hereby hires from Lessor
approximately 4,634 square feet on the third (3rd) floor of
1350 Campus Parkway, Wall, New Jersey, as shown on Exhibit
A attached hereto ("Temporary Premises"). Lessee has
inspected the Temporary Premises, is satisfied with the
condition thereof, and agrees to accept possession of the
Temporary Premises in its "AS-IS" condition.
3.2 The term applicable to the Temporary Premises shall
commence October 1, 1997 and shall terminate at the earlier
of (1) the completion of the premises under the lease, or
(2) the date of cancellation of the lease pursuant to
Article 44 of the Lease.
3.3 Lessee shall pay Lessor Fixed Basic Rent applicable to the
Temporary Term in monthly installments of THREE THOUSAND
ONE HUNDRED EIGHTY-FIVE AND 88/100 Dollars ($3,185.88) on
the first day of each month without any offset or abatement
of any kind whatsoever, provided that partial months' rents
shall be prorated.
3.4 During the Temporary Term, the Temporary Premises shall be
insured according to the provisions of Article 31 Lessee's
Insurance of the Lease.
EXCEPT AS EXPRESSLY AMENDED HEREIN, the Lease dated ______ shall
remain in full force and effect as if the same had been set forth in
full herein, and Lessor and Lessee hereby ratify and confirm all of
the terms and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives,
successors and permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense
to any obligation under the Lease or this Agreement or make any claim
that the Lease or this Agreement is invalid or unenforceable due to
any failure of this document to comply with ministerial requirements
including, but nor limited to, requirements for corporate seals,
attestation, witnesses, notarizations, or other similar requirements,
and each party hereby waives the right to assert any such defense or
make any claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their
hands the date and year first above written, and acknowledge one to
the other that they possess the requisite authority to enter into this
transaction and to sign this Agreement.
MONMOUTH/ATLANTIC REALTY DIGITAL LIGHTWAVE, INC.
ASSOCIATES L.P., LESSOR LESSEE
By: Cali Sub VII, Inc.
Managing General Partner
By: By:
------------------------ --------------------
James G. Nugent Seth P. Joseph
Vice President-Leasing Sr. Exec. Vice President
<PAGE> 1
EXHIBIT 10.13
SECOND AMENDMENT TO LEASE
1. PARTIES
1.1 THIS AGREEMENT made the _________day of ________, 1998 is by
and between MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
(hereinafter "Lessor") whose address is c/o Mack-Cali Realty
Corporation, 11 Commerce Drive, Cranford, New Jersey 07016 and
DIGITAL LIGHTWAVE, INC. ("Lessee"), whose address is 601
Cleveland Street, 5th floor, Clearwater, Florida 34615
2. STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated September 26,
1997; (hereinafter "Lease") setting forth the terms of
occupancy by Lessee of 8,004 gross rentable square feet
(hereinafter "Premises") at 1340 Campus Parkway, Building B,
Wall, New Jersey (hereinafter "Building"); and
2.2 The Term of the Lease is for five (5) years with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under
Articles 28 and 44 thereof; and
2.3 It has been determined in accordance with the provisions of
Articles 28 and 44 of the Lease that December 1, 1997 is the
Commencement Date of the Term of the Lease; and
2.4 Lessor and Lessee desire to amend the Termination Option
contained in the Lease.
3. AGREEMENT
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The Commencement Date of the Term of the Lease is December 1,
1997 and the Expiration Date thereof is November 30, 2002 and
Articles 5 and 8 of the Preamble to the Lease shall be deemed
amended accordingly.
3.2 Article 9 of the Preamble to the Lease is hereby confirmed as
being correct and reflects the above stated Commencement and
Expiration Dates.
3.3 This Agreement is executed by the parties hereto for the
purpose of providing a record of the Commencement and
Expiration Dates of the Lease, to confirm the Term of the
Lease, and to confirm the Fixed Base Rent due for the Term.
3.4 Lessor and Lessee agree to increase the consideration due
Lessor in the event that Lessee exercises its Termination
Option from Seventy-One Thousand One Hundred Eight and 00/100
Dollars ($71,108.00) to Eighty-Four Thousand Nine Hundred
Eighteen and 92/100 Dollars ($84,918.92) to reflect the
commission Lessor is paying Black and Company ("Broker") for
the cancelable portion of the Term of the Lease, and Article
54 of the Lease shall be deemed amended accordingly.
3.5 Except as amended herein, the Lease covering the Premises
shall remain in full force and effect as if the same were set
forth in full herein and Lessor and Lessee hereby ratify and
confirm all the terms and conditions thereof.
3.6 This agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal
representatives, successors and permitted assigns.
3.7 Each party agrees that it will not raise or assert as a
defense to any obligation under the Lease or this Amendment or
make any claim that the Lease or this Amendment is invalid or
unenforceable due to any failure of this document to comply
with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses,
notarizations, or other similar requirements, and each party
hereby waives the right to assert any such defense or make any
claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their
hands and seals the date and year first above written and acknowledge
one to the other they possess the requisite authority to enter into
this transaction and to sign this Agreement.
MONMOUTH/ATLANTIC REALTY DIGITAL LIGHTWAVE, INC.,
ASSOCIATES L.P., LESSEE
LESSOR
By: Cali Sub VII, Inc.
Managing General Partner
By: By:
------------------------------- ---------------------------
James G. Nugent Name:
Senior Vice President - Leasing Title:
<PAGE> 1
EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective upon execution between Digital
Lightwave, Inc., a Delaware corporation (the "Company"), and Steven H. Grant
("Grant").
WHEREAS, Grant has served the Company as its Vice President, Finance
and CFO, and has demonstrated his professional value to the Company, and
WHEREAS, the Company wishes to continue to have Grant's services for a
minimum period of three years (the "Initial Period"), and
WHEREAS, Grant wishes to be employed for this minimum period, and
WHEREAS, Grant has requested the Company to enter into this Agreement
as a condition of his continuing to accept employment by the Company,
THEREFORE, in consideration of their past relationship, the terms and
conditions of this Agreement, and other valuable consideration, the receipt and
sufficiency of which is acknowledged, the Company and Grant agree:
1. Duties and Responsibilities. Grant is hereby promoted to and
employed as Executive Vice President, Finance and Chief Financial Officer of
the Company. Grant will report to Dr. Bryan J. Zwan, Chairman and Chief
Executive Officer of the Company. As Executive Vice President, Grant will have
these responsibilities:
(1) developing, implementing and directing the financial
strategy, policy, and operations of the Company as approved by
the CEO. These duties include but are not limited to
oversight of the Treasury Division, budgetary planning and
analysis, authorizing of financial plans and policies, and
generation and qualification of financial statements;
(2) management and oversight of the financial aspects of:
mergers and acquisitions, SEC and IRS reporting and
compliance, investor and Wall Street relations, presentations
to the Board and to the Street, public stock offerings and
capital acquisitions and asset management and growth; and
(3) supervision of the Director of Human Resources,
including the supervision of the Company's compliance with
state and federal laws governing the Company's relationship
with its employees.
<PAGE> 2
2. Exclusive Services. During the term of employment, Grant will
be a full time employee of the Company. His services will be exclusive to the
Company and he will devote his productive time and attention to the performance
of his duties during the term of employment.
3. Confidentiality. Grant occupies a position of trust and
confidence. To fulfill his responsibilities, Grant will be afforded full and
unlimited access to all Company data and documents, regardless of the location
of the data and documents, and regardless of the physical form in which they
are kept. Except where he is under an obligation under this Agreement or under
a legal obligation to do so, Grant shall not disclose the information which he
learns as Executive Vice President. Information commonly known outside of the
Company or which is disclosed to regulatory authorities or publicly available
is excluded from this provision. This confidentiality provision extends beyond
the term of this Agreement. The current Confidentiality Agreement is ratified
and continued except as revised herein.
4. Compensation. (1) Salary: For the period from execution of
this Agreement, Grant shall receive a minimum salary of Two Hundred Thousand
dollars ($200,000.00) annually, payable in arrears in semi-monthly
installments, and paid on the 15th and final day of the month. Any salary
increases beyond the minimum salary is at the discretion of the Company's
Compensation Committee as advised by the Chief Executive Officer.
(2) Bonuses: Grant will be paid a bonus (which is
primarily related to a deferred sign-on bonus) of Forty
Thousand dollars ($40,000.00) on April 15, 1998, upon
completion of the Company's filings with the Securities and
Exchange Commission for its year which ended December 31, 1997.
Thereafter, Grant will be paid an annual bonus in accordance
with the soon to be adopted Executive Bonus Plan.
(3) Benefits: Grant and his family shall be entitled to
participate in the insurance and benefit plans of the Company.
(4) Leave: For the period from execution of the
Agreement until December 31, 1998, Grant will receive ten (10)
paid vacation leave days, twelve (12) paid holiday leave days
and five (5) paid sick leave days. For the year commencing
January 1, 1999, Grant shall receive leave days at the same
level. On January 1, 2000, Grant shall receive fifteen (15)
paid vacation leave days, twelve (12) paid holiday leave days,
and five (5) paid sick leave days. On January 1, 1999 and
each January 1 thereafter, Grant shall be paid for all unused
vacation leave days.
2
<PAGE> 3
5. Company Stock Options. Upon execution of this Agreement or no
later than the date of the next meeting of the Compensation Committee of the
Board of Directors, Grant shall be granted Two Hundred Thousand (200,000) shares
of the Company stock. One fourth of this number shall vest on the date of the
grant and one fourth shall vest each three hundred sixty-five (365) days
thereafter. If Grant's employment is terminated, all shares granted under this
paragraph but not yet vested shall continue to vest unless there is a "change
of control" (as defined below) in which case the vesting will accelerate.
Grant may purchase additional shares of the Company's stock under the Company's
Stock Purchase Plan for employees. The parties intend that any previous stock
offers be rescinded, and that this provision reflects the only stock agreement
between the parties.
6. Term. This Agreement shall be for a three-year period,
commencing with its execution by the Company and Grant. The Agreement will be
automatically renewed for an additional two-year period (the "Renewal Period")
unless either party gives the other party a Notice of Non-Renewal, no later
than 90 days prior to expiration of the Initial Period. Nothing in this
agreement precludes either party from negotiating a Renewal Period in "good
faith" for a period of shorter or longer duration prior to the receipt of a
timely Notice of Non-Renewal.
7. Termination. (1) Defined terms: (a) "change of control"
shall mean the merger or consolidation of the Company in which the Company is
the acquired part, or the sale of all, or substantially all of the assets of the
Company or if Bryan J. Zwan and/or his family cease to have voting control of
the common stock of the Company; (b) "change in duties" shall mean a material
alteration of Grant's duties from those described in this Agreement; (c) "change
in location" shall mean the relocation of the Company's headquarters from the
Tampa Bay Metropolitan area; (d) "change in accounting and financial practices"
shall mean a material disagreement with respect to generally accepted accounting
and financial practices; (e) "termination" shall mean an act or omission which
ends Grant's employment, whether a purported termination by the Company or the
happening of an event which constitutes one or more of the following: a change
of control, a change in duties, a change in location, or a change in accounting
and financial practices, or the expiration of this Employment Agreement; and (f)
"severance compensation" shall mean compensation, including all benefits, for
eighteen (18) months at Grant's then effective salary rate except in the event
of a change of control where the period will be for twenty-four (24) months.
This compensation shall be paid in a lump sum if termination occurs as a result
of a change of control or if the Company elects to terminate Grant for no reason
or for a reason which is not "Cause" as that term is defined in this Agreement.
If the Company elects to terminate Grant for no reason or for a reason which is
not "Cause" as that term is defined in this Agreement, compensation shall be
paid periodically and not in lump sum if a lump sum payment would represent a
material change in the Company's liquidity position. For all other types of
termination, the Company may choose to pay it in a lump sum or over an
3
<PAGE> 4
eighteen (18) month period. Regardless, all benefits will continue over an
eighteen (18) month period (unless a change of control has occurred, then Grant
will receive benefits over a twenty-four (24) month period.) If Grant becomes
employed during either the eighteen (18) month period or the twenty-four (24)
month period (in the event of a change of control) and if Grant has comparable
benefits, then the fringe benefits, but not the salary, will be discontinued.
(3) Rights Upon Expiration of This Agreement - If Grant's
employment is terminated on or after the expiration of the
Employment Agreement, Grant shall be entitled to severance
compensation as defined above.
(4) The payment and benefits to be paid to Grant pursuant
to this Agreement shall be absolute, regardless of whether
Grant is discharged for Cause, until March 31, 1998, or the
date of the Form 10-K filing, whichever is later ("the filing
date"). After the filing date, payment and benefits to be
paid pursuant to this Agreement shall not be payable in the
event that Grant is terminated by the Company for Cause. For
the purposes of this Agreement, the Company shall have "Cause"
for termination of the Grant's employment only (i) if Grant is
indicted for or pleads guilty or nolo contendere to any crime
alleged to have been committed after the filing date, (except
if committed upon advice from counsel to the Company); or (ii)
if Grant has engaged in conduct or activities involving moral
turpitude materially damaging to the business or reputation of
the Company alleged to have been committed after the filing
date; or (iii) if Grant knowingly or willfully violates any
law, rule, regulation or order of any governmental authority,
thereby exposing the Company to potential material civil or
criminal penalties alleged to have been committed after the
filing date, unless the employee has done so on advice from
counsel to the Company; or (iv) in the event of Grant's gross
misfeasance, intentional misconduct or fraud in the
performance of his responsibilities to the Company alleged to
have been committed after the filing date, as set forth by the
Board of Directors of the Company; or (v) if after the filing
date, Grant knowingly misappropriates for his own purpose and
benefit, any property of the Company or unlawfully
appropriates any corporate opportunity of the Company.
8. Indemnification. The Company and Grant have previously
entered into an Indemnification Agreement dated September 15, 1997, a copy of
which is affixed as Appendix "A" to this Agreement ("Indemnification
Agreement"). It is expressly ratified and confirmed and continued. The
parties intend to enlarge on Grant's rights under that Agreement in this
Agreement and to in no respect diminish, depreciate or otherwise dilute or
destroy Grant's rights. Grant's rights under the Indemnification Agreement are
enlarged
4
<PAGE> 5
as follows:
(1) The definition of "change of control" in the
Indemnification Agreement is modified to include the
definitions of change of control herein without limiting the
definition in the Indemnification Agreement.
(2) In addition to the rights granted under the
Indemnification Agreement, Grant shall have the right to
obtain independent legal counsel at the Company's expense and
to reimburse them for or to advance to himself all expenses
(as defined in the Indemnification Agreement) in the event he
deems it to be necessary, regardless of whether a claim has
been made. Further, Grant may express the right as he, in his
sole discretion, deems necessary and need not obtain any
further approvals in order to do so, unless such fees will
exceed $1,000.
(3) Grant's rights under the Indemnification Agreement
and this paragraph survive the termination, for whatsoever
cause or reason (including expiration) of this Employment
Agreement. It is the intent of the parties that Grant's
rights shall continue until the statute of limitations
applicable to the identifiable act or omission runs.
(4) No act or omission which would allow the Company to
refuse indemnity under the Indemnification Agreement shall bar
Grant's right to indemnification for acts or omissions from
September 15, 1997 until the filing date, as previously
defined. It is the intent of the parties that Grant shall
absolutely entitled to indemnification for claims based on
acts or omissions during the period from his employment
through the filing date, regardless of his actions or his
failure to act.
10. Death or Disability or Incapacity or Inability to Serve for
Whatever Reason. On an annual basis, the Company shall provide Grant
sufficient funds, net of all taxes, to purchase a one million dollar term life
insurance policy and a disability insurance policy to provide comparable
compensation, including benefits. Grant shall furnish the Company with a copy
of every policy. In the event that Grant is unable to serve because of an act
or omission prior to the filing date, Grant or Grant's designee shall receive
all of the salary and benefits from this Agreement. Until a later designation
by Grant, Kristine Marquez Grant is designated to receive these benefits upon
Grant's death, disability or incapacity or inability to serve for whatever
reason.
5
<PAGE> 6
11. Preparation of this Agreement. (1) Construction: This
document shall be construed without regard to who authored it.
(2) Legal Fees: Grant has incurred legal fees in the
amount of $7,500.00 in the development and drafting of this Employment
Agreement for which the Company agrees to be responsible.
12. Governing Law. This Agreement will be construed in accordance
with the laws of the State of Florida applicable to contracts made and
performed in Florida without giving effect to the principles of conflicts of
laws.
13. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void, or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions
of this Agreement (including, without limitation, each portion of this
Agreement containing any provision held to be invalid, void, or otherwise
unenforceable, that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
14. Modification. This Agreement shall be not be modified or
amended except as agreed to in writing signed by each party or an authorized
representative of each party.
15. No Waiver. The failure of either party to this Agreement to
insist upon the performance of the terms and conditions of this Agreement, or
the waiver of any breach of any of the terms and conditions of this agreement,
shall not be construed as thereafter waiving any such terms and conditions, but
the same shall continue and remain in full force and effect as if no such
forbearance of waiver had occurred.
16. Headings. Titles to the sections of this Agreement are solely
for the convenience of the parties and shall not be used to explain, modify,
simplify, or aid in the interpretation of the provisions of this Agreement.
17. Entire Agreement. Except as to the pre-existing
Indemnification Agreement, the Assignment of Intellectual Property Rights
Agreement and the Confidentiality Agreement, this agreement constitutes the
entire agreement and understanding, and merges and supersedes all prior
discussions, agreements and understandings between the parties regarding the
subject matter described herein.
6
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Employment Agreement as of the date first above written.
DIGITAL LIGHTWAVE, INC.,
a Delaware corporation
/s/ Bryan J. Zwan /s/ Steven H. Grant
- ------------------------- ---------------------------
Dr. Bryan J. Zwan, Steven H. Grant,
Chief Executive Officer Executive Vice President
Date: 02/27/98 Date: 02/27/98
-------------------- ----------------------
7
<PAGE> 1
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Digital Lightwave, Inc. on Form S-8 (File No. 333-35375) of our report dated
March 13, 1998, on our audits of the financial statements of Digital Lightwave,
Inc. as of December 31, 1997 and 1996 and for the years ended December 31, 1997,
1996 and 1995, which report is included in this Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Tampa Florida
April 15, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 24,031
<SECURITIES> 0
<RECEIVABLES> 4,780
<ALLOWANCES> 0
<INVENTORY> 8,120
<CURRENT-ASSETS> 37,412
<PP&E> 7,941
<DEPRECIATION> 1,156
<TOTAL-ASSETS> 44,361
<CURRENT-LIABILITIES> 4,917
<BONDS> 0
0
0
<COMMON> 3
<OTHER-SE> 39,416
<TOTAL-LIABILITY-AND-EQUITY> 44,361
<SALES> 9,081
<TOTAL-REVENUES> 9,081
<CGS> 3,124
<TOTAL-COSTS> 3,124
<OTHER-EXPENSES> 14,414
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 66
<INCOME-PRETAX> (6,690)
<INCOME-TAX> 0
<INCOME-CONTINUING> (6,690)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,690)
<EPS-PRIMARY> (0.25)
<EPS-DILUTED> (0.25)
</TABLE>
