SUNTRUST CENTER
ORLANDO, FLORIDA
(TOWER BUILDING)
OFFICE LEASE AGREEMENT
BETWEEN
SUNTRUST CENTER, L.L.C., a Delaware limited liability company
("LANDLORD")
AND
GSI TECHNOLOGIES USA INC.
("TENANT")
<PAGE>
TABLE OF CONTENTS
I. Basic Lease Information.................................................1
II. Lease Grant.............................................................2
III. Possession...........................................................2
IV. Rent.................................................................3
V. Compliance with Laws; Use...............................................6
VI. Security Deposit.....................................................6
VII. Services to be Furnished by Landlord.................................7
VIII. Leasehold Improvements...............................................7
IX. Repairs and Alterations..............................................8
X. Use of Electrical Services by Tenant....................................9
XI. Entry by Landlord....................................................9
XII. Assignment and Subletting...........................................10
XIII. Liens...............................................................11
XIV. Indemnity and Waiver of Claims......................................11
XV. Insurance...........................................................12
XVI. Subrogation.........................................................12
XVII. Casualty Damage..................................................13
XVIII. Condemnation.....................................................13
XIX. Events of Default...................................................14
XX. Remedies............................................................14
XXI. Limitation of Liability.............................................15
XXII. No Waiver........................................................15
XXIII. Quiet Enjoyment.....................................................15
XXIV. Relocation..........................................................16
XXV. Holding Over.....................................................16
XXVI. Subordination to Mortgages; Estoppel Certificate.................16
XXVII. Attorneys' Fees..................................................16
XXVIII. Notice............................................................16
XXIX. Excepted Rights...................................................17
XXX. Surrender of Premises.............................................17
XXXI. Miscellaneous.....................................................17
XXXII. Entire Agreement..................................................19
<PAGE>
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as
of the ____ day of ___________, 2000, by and between SUNTRUST CENTER, L.L.C., a
Delaware limited liability company ("Landlord") and GSI TECHNOLOGIES USA INC., a
Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building complex located at 200/250
South Orange Avenue, which is composed of the tower building
located at 200 South Orange Avenue, and the midrise building
located at 250 South Orange Avenue, in the County of Orange,
City of Orlando, State of Florida, commonly known as SunTrust
Center.
B. "Rentable Square Footage of the Building" is deemed to be
640,385 square feet.
C. "Premises" shall mean the area shown on Exhibit A to this
Lease. The Premises are known as suite number 2150 and
are located on the 21st floor of the tower building located
at 200 South Orange Avenue, comprising a portion of the
Building. The "Rentable Square Footage of the Premises"
is deemed to be 2,231 square feet. If the Premises
include one or more floors in their entirety, all corridors
and restroom facilities located on such full floor(s) shall
be considered part of the Premises. Landlord and Tenant
stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are
correct and shall not be remeasured.
D. "Base Rent":
<TABLE>
<S> <C> <C> <C>
Annual Rate Period Monthly
Period Per Square Foot Base Rent* Base Rent*
------ --------------- ---------- ----------
6/16/00 - 6/30/00 $25.00 $2,323.95 $2,323.95
7/01/00 - 6/30/01 $25.00 $55,775.04 $4,647.92
7/01/01 - 6/30/02 $26.00 $58,005.96 $4,833.83
7/01/02 - 6/30/03 $27.00 $60,237.00 $5,019.75
7/01/03 - 6/30/04 $28.00 $62,468.04 $5,205.67
7/01/04 - 6/30/05 $29.00 $64,698.96 $5,391.58
</TABLE>
*plus applicable State of Florida sales tax
E. "Tenant's Pro Rata Share": .3484%.
F. "Base Year" for Taxes: 2000; "Base Year" for Expenses: 2000.
G. "Term": A period of 60 months and 15 days. The Term
shall commence on June 16, 2000 (the "Commencement Date")
and, unless terminated early in accordance with this Lease,
end on June 30, 2005 (the "Termination Date").
H. Tenant allowance: Construction Allowance in the amount of
$11,155.00 pursuant to Paragraph 7 of Exhibit D.
I. "Security Deposit": $10,039.50.
J. "Guarantor(s)": None.
K. "Broker(s)": Caribe Realty of Osceola, Inc.
L. "Permitted Use": General office use.
Notwithstanding anything to the contrary in this Lease, Tenant
shall not use or permit any portion of the Premises to be used
for a state or federally regulated commercial banking or
savings and loan association accepting deposits, making loans
or disbursing cash, or for the operation of a retail banking
or lending facility, or for the installation of any automatic
teller machine.
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M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises as follows:
GSI Technologies USA Inc.
200 South Orange Avenue
Suite No. 2150
Orlando, Florida 32801
Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
721 S.E. 17th Street
Suite 200
Ft. Lauderdale, Florida 33316
Phone #: 877-447-4872
Fax #: 514-940-5272
Landlord: With a copy to:
SUNTRUST CENTER, L.L.C. Equity Office Properties
c/o Equity Office Properties Trust Two North Riverside Plaza
200 South Orange Avenue Suite 2200
Suite 2220 Chicago, Illinois 60606
Orlando, Florida 32801 Attention:Regional
Attention: Building Manager Counsel - Southeast
Rent (defined in Section IV.A) is payable to the order of
Equity Office Properties at the following address: Post Office
Box 402022, Atlanta, Georgia 30384-2022.
N. "Business Day(s)" are Monday through Friday of each week,
exclusive of New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Holidays").
Landlord may designate additional Holidays, provided that the
additional Holidays are commonly recognized by other office
buildings in the area where the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is
obligated to perform in the Premises pursuant to a separate
work letter agreement (the "Work Letter"), if any, attached as
Exhibit D. The occurrence of the Commencement Date shall not
be conditioned upon the performance of the Landlord Work by
Landlord.
P. "Law(s)" means all applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or governmental
entity.
Q. "Normal Business Hours" for the Building are 8:00 A.M. to
6:00 P.M. on Business Days and 9:00 A.M. to 1:00 P.M. on
Saturdays.
R. "Property" means the Building and the parcel(s) of land on
which it is located and, at Landlord's discretion, the
Building garage and other improvements serving the Building,
if any, and the parcel(s) of land on which they are located.
II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any portions
of the Property that are designated by Landlord for the common use of tenants
and others, such as sidewalks, unreserved parking areas, common corridors,
elevator foyers, restrooms, vending areas and lobby areas (the "Common Areas").
<PAGE>
III. Possession.
A. Intentionally deleted.
B. Subject to Landlord's obligation, if any, to perform
Landlord Work and Landlord's obligations under Section IX.B.,
the Premises are accepted by Tenant in "as is"
condition and configuration. By taking possession of the
Premises, Tenant agrees that the Premises are in good order
and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the
condition of the Premises or the Building. If Landlord
is delayed delivering possession of the Premises or any
other space due to the holdover or unlawful possession of
such space by any party, Landlord shall use reasonable
efforts to obtain possession of the space. The
Commencement Date shall be postponed until the date
Landlord delivers possession of the Premises to Tenant
free from occupancy by any party, and the Termination
Date, at the option of Landlord, may be postponed by an equal
number of days.
C. If Tenant takes possession of the Premises before the
Commencement Date, such possession shall be subject to the
terms and conditions of this Lease and Tenant shall pay
Rent (defined in Section IV.A.) to Landlord for each day of
possession before the Commencement Date. However, except
for the cost of services requested by Tenant (e.g. freight
elevator usage), Tenant shall not be required to pay Rent
for any days of possession before the Commencement Date
during which Tenant, with the approval of Landlord, is
in possession of the Premises for the sole purpose of
performing improvements or installing furniture,
equipment or other personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall
pay Landlord, without any setoff or deduction, the total
amount of Base Rent and Additional Rent due for the Term.
"Additional Rent" means all sums (exclusive of Base Rent)
that Tenant is required to pay Landlord. Additional
Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental,
sales and use taxes (but excluding income taxes), if any,
imposed upon or measured by Rent under applicable Law.
Base Rent and recurring monthly charges of Additional Rent
shall be due and payable in advance on the first day of each
calendar month without notice or demand, provided that the
installment of Base Rent, plus applicable Florida state
sales tax thereon, for the first full calendar month of
the Term shall be payable upon the execution of this Lease
by Tenant. All other items of Rent shall be due and
payable by Tenant on or before 30 days after billing by
Landlord. All payments of Rent shall be by good and
sufficient check or by other means (such as automatic
debit or electronic transfer) acceptable to Landlord.
If Tenant fails to pay any item or installment of Rent
when due, Tenant shall pay Landlord an administration fee
equal to 5% of the past due Rent, provided that Tenant shall
be entitled to a grace period of 5 days for the first 2 late
payments of Rent in a given calendar year. If the Term
commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a
calendar month, the monthly Base Rent and Tenant's Pro
Rata Share of any Tax Excess (defined in Section IV.B.)
or Expense Excess (defined in Section IV.B.) for the month
shall be prorated based on the number of days in such
calendar month. Landlord's acceptance of less than the
correct amount of Rent shall be considered a payment on
account of the earliest Rent due. No endorsement or
statement on a check or letter accompanying a check or
payment shall be considered an accord and satisfaction, and
either party may accept the check or payment without
prejudice to that party's right to recover the balance
or pursue other available remedies. Tenant's covenant
to pay Rent is independent of every other covenant in this
Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro
Rata Share of the amount, if any, by which Expenses
(defined in Section IV.C.) for each calendar year during
the Term exceed Expenses for the Base Year (the "Expense
<PAGE>
Excess") and also the amount, if any, by which Taxes
(defined in Section IV.D.) for each calendar year during the
Term exceed Taxes for the Base Year (the "Tax Excess"). If
Expenses and/or Taxes in any calendar year decrease below
the amount of Expenses and/or Taxes for the Base Year,
Tenant's Pro Rata Share of Expenses and/or Taxes, as the
case may be, for that calendar year shall be $0. Landlord
shall provide Tenant with a good faith estimate of the
Expense Excess and of the Tax Excess for each calendar year
during the Term. On or before the first day of each month,
Tenant shall pay to Landlord a monthly installment equal to
one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the Expense Excess and one-twelfth of Tenant's
Pro Rata Share of Landlord's estimate of the Tax Excess. If
Landlord determines that its good faith estimate of the
Expense Excess or of the Tax Excess was incorrect by a
material amount, Landlord may provide Tenant with a revised
estimate. After its receipt of the revised estimate,
Tenant's monthly payments shall be based upon the revised
estimate. If Landlord does not provide Tenant with an
estimate of the Expense Excess or of the Tax Excess by
January 1 of a calendar year, Tenant shall continue to pay
monthly installments based on the previous year's
estimate(s) until Landlord provides Tenant with the new
estimate. Upon delivery of the new estimate, an adjustment
shall be made for any month for which Tenant paid monthly
installments based on the previous year's estimate(s).
Tenant shall pay Landlord the amount of any underpayment
within 30 days after receipt of the new estimate. Any
overpayment shall be refunded to Tenant within 30 days or
credited against the next due future installment(s) of
Additional Rent.
As soon as is practical following the end of each calendar
year, Landlord shall furnish Tenant with a statement of the
actual Expenses and Expense Excess and the actual Taxes and
Tax Excess for the prior calendar year. If the estimated
Expense Excess and/or estimated Tax Excess for the prior
calendar year is more than the actual Expense Excess and/or
actual Tax Excess, as the case may be, for the prior
calendar year, Landlord shall apply any overpayment by
Tenant against Additional Rent due or next becoming due,
provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant
after first deducting the amount of Rent due. If the
estimated Expense Excess and/or estimated Tax Excess for the
prior calendar year is less than the actual Expense Excess
and/or actual Tax Excess, as the case may be, for such prior
year, Tenant shall pay Landlord, within 30 days after its
receipt of the statement of Expenses and/or Taxes, any
underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses
incurred in each calendar year in connection with operating,
maintaining, repairing, and managing the Building and the
Property, including, but not limited to:
1. Labor costs, including, wages, salaries, social
security and employment taxes, medical and other
types of insurance, uniforms, training, and
retirement and pension plans.
2. Management fees, the cost of equipping and
maintaining a management office, accounting and
bookkeeping services, legal fees not attributable
to leasing or collection activity, and other
administrative costs. Landlord, by itself or
through an affiliate, shall have the right to
directly perform or provide any services under
this Lease (including management services),
provided that the cost of any such services shall
not exceed the cost that would have been incurred
had Landlord entered into an arms-length contract
for such services with an unaffiliated entity of
comparable skill and experience.
3. The cost of services, including amounts paid to
service providers and the rental and purchase cost
of parts, supplies, tools and equipment.
4. Premiums and deductibles paid by Landlord for
insurance, including workers compensation, fire and
extended coverage, earthquake, general liability,
rental loss, elevator, boiler and other insurance
customarily carried from time to time by owners of
comparable office buildings.
<PAGE>
5. Electrical Costs (defined below) and charges for
water, gas, steam and sewer, but excluding those
charges for which Landlord is reimbursed by
tenants. "Electrical Costs" means: (a) charges
paid by Landlord for electricity; (b) costs
incurred in connection with an energy management
program for the Property; and (c) if and to the
extent permitted by Law, a fee for the services
provided by Landlord in connection with the
selection of utility companies and the negotiation
and administration of contracts for electricity,
provided that such fee shall not exceed 50% of any
savings obtained by Landlord. Electrical Costs
shall be adjusted as follows: (i) amounts
received by Landlord as reimbursement for above
standard electrical consumption shall be deducted
from Electrical Costs; (ii) the cost of
electricity incurred to provide overtime HVAC to
specific tenants (as reasonably estimated by
Landlord) shall be deducted from Electrical Costs;
and (iii) if Tenant is billed directly for the cost
of building standard electricity to the Premises
as a separate charge in addition to Base Rent, the
cost of electricity to individual tenant spaces
in the Building shall be deducted from Electrical
Costs.
6. The amortized cost of capital improvements (as
distinguished from replacement parts or components
installed in the ordinary course of business) made
to the Property which are: (a) performed
primarily to reduce operating expense costs or
otherwise improve the operating efficiency of the
Property; or (b) required to comply with any Laws
that are enacted, or first interpreted to apply
to the Property, after the date of this Lease. The
cost of capital improvements shall be amortized
by Landlord over the lesser of the Payback
Period (defined below) or 5 years. The
amortized cost of capital improvements may, at
Landlord's option, include actual or imputed
interest at the rate that Landlord would
reasonably be required to pay to finance the cost of
the capital improvement. "Payback Period" means
the reasonably estimated period of time that it
takes for the cost savings resulting from a capital
improvement to equal the total cost of the capital
improvement.
If Landlord incurs Expenses for the Property together with one
or more other buildings or properties, whether pursuant to a
reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses shall be equitably
prorated and apportioned between the Property and the other
buildings or properties. Expenses shall not include: the cost
of capital improvements (except as set forth above);
depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of
mortgage and other non-operating debts of Landlord; the cost
of repairs or other work to the extent Landlord is reimbursed
by insurance or condemnation proceeds; costs in connection
with leasing space in the Building, including brokerage
commissions; lease concessions, including rental abatements
and construction allowances, granted to specific tenants;
costs incurred in connection with the sale, financing or
refinancing of the Building; fines, interest and penalties
incurred due to the late payment of Taxes (defined in Section
IV.D) or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes
Landlord; or any penalties or damages that Landlord pays to
Tenant under this Lease or to other tenants in the Building
under their respective leases. If the Building is not at least
95% occupied during any calendar year or if Landlord is not
supplying services to at least 95% of the total Rentable
Square Footage of the Building at any time during a calendar
year, Expenses shall, at Landlord's option, be determined as
if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of
the Building during that calendar year. If Tenant pays for its
Pro Rata Share of Expenses based on increases over a "Base
Year" and Expenses for a calendar year are determined as
provided in the prior sentence, Expenses for the Base Year
shall also be determined as if the Building had been 95%
occupied and Landlord had been supplying services to 95% of
the Rentable Square Footage of the Building. The extrapolation
of Expenses under this Section shall be performed by
appropriately adjusting the cost of those components of
Expenses that are impacted by changes in the occupancy of the
Building.
<PAGE>
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes
and other assessments on the Building and/or Property,
including, but not limited to, assessments for special
improvement districts and building improvement districts,
taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and
assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement
agreement, common area agreement or similar agreement as to
the Property; (2) all personal property taxes for property
that is owned by Landlord and used in connection with the
operation, maintenance and repair of the Property; and (3)
all costs and fees incurred in connection with seeking
reductions in any tax liabilities described in (1) and (2),
including, without limitation, any costs incurred by
Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any
income, capital levy, franchise, capital stock, gift, estate
or inheritance tax. If an assessment is payable in
installments, Taxes for the year shall include the amount of
the installment and any interest due and payable during that
year. For all other real estate taxes, Taxes for that year
shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for the year or the
amount due and payable for that year, provided that
Landlord's election shall be applied consistently throughout
the Term. If a change in Taxes is obtained for any year of
the Term during which Tenant paid Tenant's Pro Rata Share of
any Tax Excess, then Taxes for that year will be
retroactively adjusted and Landlord shall provide Tenant
with a credit, if any, based on the adjustment. Likewise, if
a change is obtained for Taxes for the Base Year, Taxes for
the Base Year shall be restated and the Tax Excess for all
subsequent years shall be recomputed. Tenant shall pay
Landlord the amount of Tenant's Pro Rata Share of any such
increase in the Tax Excess within 30 days after Tenant's
receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving
Landlord's statement of Expenses, give Landlord written
notice ("Review Notice") that Tenant intends to review
Landlord's records of the Expenses for that calendar year.
Within a reasonable time after receipt of the Review Notice,
Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to
conduct its review. If any records are maintained at a
location other than the office of the Building, Tenant may
either inspect the records at such other location or pay for
the reasonable cost of copying and shipping the records. If
Tenant retains an agent to review Landlord's records, the
agent must be with a licensed CPA firm. Tenant shall be
solely responsible for all costs, expenses and fees incurred
for the audit. Within 60 days after the records are made
available to Tenant, Tenant shall have the right to give
Landlord written notice (an "Objection Notice") stating in
reasonable detail any objection to Landlord's statement of
Expenses for that year. If Tenant fails to give Landlord an
Objection Notice within the 60 day period or fails to
provide Landlord with a Review Notice within the 90 day
period described above, Tenant shall be deemed to have
approved Landlord's statement of Expenses and shall be
barred from raising any claims regarding the Expenses for
that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in
good faith to resolve any issues raised in Tenant's
Objection Notice. If Landlord and Tenant determine that
Expenses for the calendar year are less than reported,
Landlord shall provide Tenant with a credit against the next
installment of Rent in the amount of the overpayment by
Tenant. Likewise, if Landlord and Tenant determine that
Expenses for the calendar year are greater than reported,
Tenant shall pay Landlord the amount of any underpayment
within 30 days. The records obtained by Tenant shall be
treated as confidential. In no event shall Tenant be
permitted to examine Landlord's records or to dispute any
statement of Expenses unless Tenant has paid and continues
to pay all Rent when due.
V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for no other
use whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
<PAGE>
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall comply with the rules and regulations of the
Building attached as Exhibit B and such other reasonable rules and regulations
adopted by Landlord from time to time. Tenant shall also cause its agents,
contractors, subcontractors, employees, customers, and subtenants to comply with
all rules and regulations. Landlord shall not knowingly discriminate against
Tenant in Landlord's enforcement of the rules and regulations.
VI. Security Deposit.
The Security Deposit shall be delivered to Landlord upon the execution
of this Lease by Tenant and shall be held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a measure
of Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall on demand restore the Security Deposit to its
original amount. Landlord shall return any unapplied portion of the Security
Deposit to Tenant within 45 days after the later to occur of: (1) the
determination of Tenant's Pro Rata Share of any Tax Excess and Expense Excess
for the final year of the Term; (2) the date Tenant surrenders possession of the
Premises to Landlord in accordance with this Lease; or (3) the Termination Date.
If Landlord transfers its interest in the Premises, Landlord may assign the
Security Deposit to the transferee and, following the assignment, Landlord shall
have no further liability for the return of the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from its other accounts.
VII. Services to be Furnished by Landlord.
A. Landlord agrees to furnish Tenant with the following
services: (1) Water service for use in the lavatories on
each floor on which the Premises are located; (2) Heat and
air conditioning in season during Normal Business Hours, at
such temperatures and in such amounts as are standard for
comparable buildings or as required by governmental
authority [and Tenant may obtain HVAC service during hours
other than Normal Business Hours ("After Hours HVAC")
through the direct telephone access system established in
the Building for such purpose or through such other access
system Landlord may establish from time to time for such
purpose, and Tenant shall pay Landlord the standard charge
for the additional service as reasonably determined by
Landlord from time to time]; (3) Maintenance and repair of
the Property as described in Section IX.B.; (4) Janitor
service on Business Days. If Tenant's use, floor covering or
other improvements require special services in excess of the
standard services for the Building, Tenant shall pay the
additional cost attributable to the special services; (5)
Elevator service; (6) Electricity to the Premises for
general office use, in accordance with and subject to the
terms and conditions in Article X; and (7) such other
services as Landlord reasonably determines are necessary or
appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or
termination of, services due to the application of Laws, the
failure of any equipment, the performance of repairs,
improvements or alterations, or the occurrence of any event
or cause beyond the reasonable control of Landlord (a
"Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give
rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement. However, if
the Premises, or a material portion of the Premises, is made
untenantable for a period in excess of 3 consecutive
Business Days as a result of the Service Failure, then
Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period
beginning on the 4th consecutive Business Day of the Service
Failure and ending on the day the service has been restored.
If the entire Premises has not been rendered untenantable by
the Service Failure, the amount of abatement that Tenant is
entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not
used by Tenant. In no event, however, shall Landlord be
liable to Tenant for any loss or damage, including the theft
of Tenant's Property (defined in Article XV), arising out of
or in connection with the failure of any security services,
personnel or equipment.
<PAGE>
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold
Improvements") shall be owned by Landlord and shall remain upon the Premises
without compensation to Tenant. However, Landlord, by written notice to Tenant
within 30 days prior to the Termination Date, may require Tenant to remove, at
Tenant's expense: (1) Cable (defined in Section IX.A) installed by or for the
exclusive benefit of Tenant and located in the Premises or other portions of the
Building; and (2) any Leasehold Improvements that are performed by or for the
benefit of Tenant and, in Landlord's reasonable judgment, are of a nature that
would require removal and repair costs that are materially in excess of the
removal and repair costs associated with standard office improvements
(collectively referred to as "Required Removables"). Without limitation, it is
agreed that Required Removables include internal stairways, raised floors,
personal baths and showers, vaults, rolling file systems and structural
alterations and modifications of any type. The Required Removables designated by
Landlord shall be removed by Tenant before the Termination Date, provided that
upon prior written notice to Landlord, Tenant may remain in the Premises for up
to 5 days after the Termination Date for the sole purpose of removing the
Required Removables, but in no event shall any such holdover in the Premises
constitute or create a tenancy-at-will under existing applicable law. Tenant's
possession of the Premises shall be subject to all of the terms and conditions
of this Lease, including the obligation to pay Rent on a per diem basis at the
rate in effect for the last month of the Term. Tenant shall repair damage caused
by the installation or removal of Required Removables. If Tenant fails to remove
any Required Removables or perform related repairs in a timely manner, Landlord,
at Tenant's expense, may remove and dispose of the Required Removables and
perform the required repairs. Tenant, within 30 days after receipt of an
invoice, shall reimburse Landlord for the reasonable costs incurred by Landlord.
Notwithstanding the foregoing, Tenant, at the time it requests approval for a
proposed Alteration (defined in Section IX.C), may request in writing that
Landlord advise Tenant whether the Alteration or any portion of the Alteration
will be designated as a Required Removable. Within 10 days after receipt of
Tenant's request, Landlord shall advise Tenant in writing as to which portions
of the Alteration, if any, will be considered to be Required Removables.
IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost
and expense, promptly perform all maintenance and repairs to
the Premises that are not Landlord's express responsibility
under this Lease, and shall keep the Premises in good
condition and repair, reasonable wear and tear excepted.
Tenant's repair obligations include, without limitation,
repairs to: (1) floor covering; (2) interior partitions; (3)
doors; (4) the interior side of demising walls; (5)
electronic, phone and data cabling and related equipment
(collectively, "Cable") that is installed by or for the
exclusive benefit of Tenant and located in the Premises or
other portions of the Building; (6) supplemental air
conditioning units, private showers and kitchens, including
hot water heaters, plumbing, and similar facilities serving
Tenant exclusively; and (7) Alterations performed by
contractors retained by Tenant, including related HVAC
balancing. All work shall be performed in accordance with
the rules and procedures described in Section IX.C. below.
If Tenant fails to make any repairs to the Premises for more
than 15 days after notice from Landlord (although notice
shall not be required if there is an emergency), Landlord
may make the repairs, and Tenant shall pay the reasonable
cost of the repairs to Landlord within 30 days after receipt
of an invoice, together with an administrative charge in an
amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and
maintain in good repair and working order and make repairs to
and perform maintenance upon: (1) structural elements of the
Building; (2) mechanical (including HVAC), electrical,
plumbing and fire/life safety systems serving the Building in
general; (3) Common Areas; (4) the roof of the Building; (5)
exterior windows of the Building; and (6) elevators serving
the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which
Landlord is responsible.
<PAGE>
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the
Premises or other portions of the Building (collectively
referred to as "Alterations") without first obtaining the
written consent of Landlord in each instance, which consent
shall not be unreasonably withheld or delayed. However,
Landlord's consent shall not be required for any Alteration
that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2)
is not visible from the exterior of the Premises or
Building; (3) will not affect the systems or structure of
the Building; and (4) does not require work to be performed
inside the walls or above the ceiling of the Premises.
However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all
the other provisions of this Section IX.C. Prior to starting
work, Tenant shall furnish Landlord with plans and
specifications reasonably acceptable to Landlord; names of
contractors reasonably acceptable to Landlord (provided that
Landlord may designate specific contractors with respect to
Building systems); copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's
insurance in amounts reasonably required by Landlord; and
any security for performance that is reasonably required by
Landlord. Changes to the plans and specifications must also
be submitted to Landlord for its approval. Alterations shall
be constructed in a good and workmanlike manner using
materials of a quality that is at least equal to the quality
designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules,
regulations and procedures for the performance of work in
the Building and, to the extent reasonably necessary to
avoid disruption to the occupants of the Building, shall
have the right to designate the time when Alterations may be
performed. Tenant shall reimburse Landlord within 30 days
after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an
invoice from Landlord, Tenant shall pay Landlord a fee for
Landlord's oversight and coordination of any non-Cosmetic
Alterations equal to 10% of the cost of the non-Cosmetic
Alterations. Upon completion, Tenant shall furnish
"as-built" plans (except for Cosmetic Alterations),
completion affidavits, full and final waivers of lien and
receipted bills covering all labor and materials. Tenant
shall assure that the Alterations comply with all insurance
requirements and Laws. Landlord's approval of an Alteration
shall not be a representation by Landlord that the
Alteration complies with applicable Laws or will be adequate
for Tenant's use.
X. Use of Electrical Services by Tenant.
A. Electricity used by Tenant in the Premises shall, at
Landlord's option, be paid for by Tenant either: (1) through
inclusion in Expenses (except as provided in Section X.B.
for excess usage); (2) by a separate charge payable by
Tenant to Landlord within 30 days after billing by Landlord;
or (3) by separate charge billed by the applicable utility
company and payable directly by Tenant. Electrical service
to the Premises may be furnished by one or more companies
providing electrical generation, transmission and
distribution services, and the cost of electricity may
consist of several different components or separate charges
for such services, such as generation, distribution and
stranded cost charges. Landlord shall have the exclusive
right to select any company providing electrical service to
the Premises, to aggregate the electrical service for the
Property and Premises with other buildings, to purchase
electricity through a broker and/or buyers group and to
change the providers and manner of purchasing electricity.
Landlord shall be entitled to receive a fee (if permitted by
Law) for the selection of utility companies and the
negotiation and administration of contracts for electricity,
provided that the amount of such fee shall not exceed 50% of
any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either
in voltage, rated capacity, use beyond Normal Business Hours
or overall load, that which Landlord deems to be standard
for the Building. If Tenant requests permission to consume
excess electrical service, Landlord may refuse to consent or
may condition consent upon conditions that Landlord
<PAGE>
reasonably elects (including, without limitation, the
installation of utility service upgrades, meters, submeters,
air handlers or cooling units), and the additional usage (to
the extent permitted by Law), installation and maintenance
costs shall be paid by Tenant. Landlord shall have the right
to separately meter electrical usage for the Premises and to
measure electrical usage by survey or other commonly
accepted methods. If Tenant desires overhead lighting
services outside Normal Business Hours, Tenant may obtain
such service through the direct telephone access system
established in the Building for such purpose or through such
other access system Landlord may establish from time to time
for such purpose. Tenant shall pay Landlord, as Additional
Rent, the entire cost of such additional overhead lighting
service, as such costs are determined by Landlord from time
to time.
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally to the entity
occupying the Premises. If reasonably necessary for the protection and safety of
Tenant and its employees, Landlord shall have the right to temporarily close all
or a portion of the Premises to perform repairs, alterations and additions.
However, except in emergencies, Landlord will not close the Premises if the work
can reasonably be completed on weekends and after Normal Business Hours. Entry
by Landlord shall not constitute constructive eviction or entitle Tenant to an
abatement or reduction of Rent.
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined in
Section XII.E. below), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any
third party to use any portion of the Premises (collectively
or individually, a "Transfer") without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld if Landlord does not elect to exercise its
termination rights under Section XII.B below. Without
limitation, it is agreed that Landlord's consent shall not
be considered unreasonably withheld if: (1) the proposed
transferee's financial condition does not meet the criteria
Landlord uses to select Building tenants having similar
leasehold obligations; (2) the proposed transferee's
business is not suitable for the Building considering the
business of the other tenants and the Building's prestige,
or would result in a violation of another tenant's rights;
(3) the proposed transferee is a governmental agency or
occupant of the Building; (4) Tenant is in default after the
expiration of the notice and cure periods in this Lease; or
(5) any portion of the Building or Premises would likely
become subject to additional or different Laws as a
consequence of the proposed Transfer. Tenant shall not be
entitled to receive monetary damages based upon a claim that
Landlord unreasonably withheld its consent to a proposed
Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or
declaratory judgment. Any attempted Transfer in violation of
this Article shall, at Landlord's option, be void. Consent
by Landlord to one or more Transfer(s) shall not operate as
a waiver of Landlord's rights to approve any subsequent
Transfers. In no event shall any Transfer or Permitted
Transfer release or relieve Tenant from any obligation under
this Lease.
B. As part of its request for Landlord's consent to a Transfer,
Tenant shall provide Landlord with financial statements for
the proposed transferee, a complete copy of the proposed
assignment, sublease and other contractual documents and
such other information as Landlord may reasonably request.
Landlord shall, by written notice to Tenant within 30 days
of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the
execution of a consent agreement in a form reasonably
designated by Landlord or reasonably refuse to consent to
the Transfer in writing; or (2) exercise its right to
terminate this Lease with respect to the portion of the
Premises that Tenant is proposing to assign or sublet. Any
such termination shall be effective on the proposed
effective date of the Transfer for which Tenant requested
consent. Tenant shall pay Landlord a review fee of $750.00
for Landlord's review of any Permitted Transfer or requested
<PAGE>
Transfer, provided if Landlord's actual reasonable costs and
expenses (including reasonable attorney's fees) exceed
$750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other
consideration which Tenant receives as a result of a
Transfer that is in excess of the Rent payable to Landlord
for the portion of the Premises and Term covered by the
Transfer. Tenant shall pay Landlord for Landlord's share of
any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by
Tenant attributable to the Transfer (other than Landlord's
review fee), including brokerage fees, legal fees and
construction costs. If Tenant is in Monetary Default
(defined in Section XIX.A. below), Landlord may require that
all sublease payments be made directly to Landlord, in which
case Tenant shall receive a credit against Rent in the
amount of any payments received (less Landlord's share of
any excess). However, by accepting any such payments
directly from the subtenant, whether as a result of the
foregoing or otherwise, Landlord does not waive any claims
against the Tenant hereunder or release Tenant from any
obligations under this Lease, nor recognize the subtenant as
the tenant under the Lease.
D. Except as provided below with respect to a Permitted Transfer,
if Tenant is a corporation, limited liability company,
partnership, or similar entity, and if the entity which owns
or controls a majority of the voting shares/rights at any time
changes for any reason (including but not limited to a merger,
consolidation or reorganization), such change of ownership or
control shall constitute a Transfer. The foregoing shall not
apply so long as Tenant is an entity whose outstanding stock
is listed on a recognized security exchange, or if at least
80% of its voting stock is owned by another entity, the voting
stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a
successor to Tenant by purchase, merger, consolidation or
reorganization without the consent of Landlord, provided
that all of the following conditions are satisfied (a
"Permitted Transfer"): (1) Tenant is not in default under
this Lease; (2) Tenant's successor shall own all or
substantially all of the assets of Tenant; (3) Tenant's
successor shall have a net worth which is at least equal to
the greater of Tenant's net worth at the date of this Lease
or Tenant's net worth as of the day prior to the proposed
purchase, merger, consolidation or reorganization; (4) the
Permitted Use does not allow the Premises to be used for
retail purposes; and (5) Tenant shall give Landlord written
notice at least 30 days prior to the effective date of the
proposed purchase, merger, consolidation or reorganization.
Tenant's notice to Landlord shall include information and
documentation showing that each of the above conditions has
been satisfied. If requested by Landlord, Tenant's successor
shall sign a commercially reasonable form of assumption
agreement.
XIII. Liens.
The interest of Landlord in the Premises shall not be subject in any
way to any liens, including construction liens, for improvements to or other
work performed with respect to the Premises by or on behalf of Tenant. The
Tenant shall have no power or authority to create any lien or permit any lien to
attach to the present estate, reversion, or other estate of Landlord in the
Premises or in the Property and all mechanics, materialmen, contractors,
artisans, and other parties contracting with Tenant or its representatives or
privies with respect to the Premises or any part of the Premises are hereby
charged with notice that they must look to the Tenant to secure payment of any
bill for work done or material furnished or for any other purpose during the
term of this Lease. Without limiting the generality of the foregoing, Tenant
agrees to obtain and deliver to Landlord written and unconditional waivers of
construction liens upon the Premises and the Property, for all work or materials
to be furnished to the Premises at the request or direction of Tenant signed by
all architects, engineers, designers, contractors, subcontractors, materialmen,
and laborers who become involved in such work. Notwithstanding the foregoing,
Tenant, at its expense, shall cause any lien filed against the Premises or the
Property, for work or materials claimed to have been furnished to Tenant, to be
discharged of record or properly transferred to a bond pursuant to Section
713.24, Florida Statutes (1991), within ten (10) days after notice thereof to
Tenant. If Tenant shall fail to so discharge such lien or transfer it to a bond
as required above, then, in addition to any other right or remedy of Landlord,
Landlord may, but shall not be obligated to discharge or transfer the same to a
bond. Any amount paid by Landlord for any of the aforesaid purposes, including
<PAGE>
reasonable attorneys' fees (if and to the extent permitted by Law) shall be paid
by Tenant to Landlord on demand as Additional Base Rental. Landlord shall have
the right to post and keep posted on the Premises any notices that may be
provided by Law or which Landlord may deem to be proper for the protection of
Landlord, the Premises and the Building from such liens. Tenant shall notify
every contractor making improvements to the Premises that the interest of the
Landlord in the Premises shall not be subject to liens for improvements to the
Premises or for other work performed with respect to the Premises by or on
behalf of Tenant. Upon request from Landlord, Tenant shall execute, acknowledge
and deliver without charge a memorandum of lease or notice in recordable form
containing a confirmation that the interest of the Landlord in the Premises and
Property shall not be subject to liens for improvements to the Premises or for
other work performed with respect to the Premises by or on behalf of Tenant.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties
(defined below), Tenant shall indemnify, defend and hold
Landlord, its trustees, members, principals, beneficiaries,
partners, officers, directors, employees, Mortgagee(s)
(defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if
and to the extent permitted by Law), which may be imposed
upon, incurred by or asserted against Landlord or any of the
Landlord Related Parties and arising out of or in connection
with any damage or injury occurring in the Premises or any
acts or omissions (including violations of Law) of Tenant,
the Tenant Related Parties (defined below) or any of
Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant,
its trustees, members, principals, beneficiaries, partners,
officers, directors, employees and agents ("Tenant Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if
and to the extent permitted by Law), which may be imposed
upon, incurred by or asserted against Tenant or any of the
Tenant Related Parties and arising out of or in connection
with the acts or omissions (including violations of Law) of
Landlord, the Landlord Related Parties or any of Landlord's
contractors.
C. Landlord and the Landlord Related Parties shall not be
liable for, and Tenant waives, all claims for loss or damage
to Tenant's business or loss, theft or damage to Tenant's
Property or the property of any person claiming by, through
or under Tenant resulting from: (1) wind or weather; (2) the
failure of any sprinkler, heating or air-conditioning
equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout;
(4) the bursting, leaking or running of any tank, water
closet, drain or other pipe; (5) water, snow or ice upon or
coming through the roof, skylight, stairs, doorways,
windows, walks or any other place upon or near the Building;
(6) any act or omission of any party other than Landlord or
Landlord Related Parties; and (7) any causes not reasonably
within the control of Landlord. Tenant shall insure itself
against such losses under Article XV below.
XV. Insurance.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
<PAGE>
designees of Landlord as the interest of such designees shall appear, as
additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any change, cancellation, termination or
lapse of insurance. Tenant shall provide Landlord with a certificate of
insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the Premises
for any reason, and upon renewals at least 15 days prior to the expiration of
the insurance coverage. So long as the same is available at commercially
reasonable rates, Landlord shall maintain so called All Risk property insurance
on the Building at replacement cost value, as reasonably estimated by Landlord.
Except as specifically provided to the contrary, the limits of either party's'
insurance shall not limit such party's liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim, action or causes of action against the
other and their respective trustees, principals, beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Building,
the Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or
other casualty, Tenant shall immediately notify Landlord in
writing. During any period of time that all or a material
portion of the Premises is rendered untenantable as a result
of a fire or other casualty, the Rent shall abate for the
portion of the Premises that is untenantable and not used by
Tenant. Landlord shall have the right to terminate this
Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or
not the Premises has been damaged); (2) Landlord is not
permitted by Law to rebuild the Building in substantially
the same form as existed before the fire or casualty; (3)
the Premises have been materially damaged and there is less
than 2 years of the Term remaining on the date of the
casualty; (4) any Mortgagee requires that the insurance
proceeds be applied to the payment of the mortgage debt; or
(5) a material uninsured loss to the Building occurs.
Landlord may exercise its right to terminate this Lease by
notifying Tenant in writing within 90 days after the date of
the casualty. If Landlord does not terminate this Lease,
Landlord shall commence and proceed with reasonable
diligence to repair and restore the Building and the
Leasehold Improvements (excluding any Alterations that were
performed by Tenant in violation of this Lease). However, in
no event shall Landlord be required to spend more than the
insurance proceeds received by Landlord. Landlord shall not
be liable for any loss or damage to Tenant's Property or to
the business of Tenant resulting in any way from the fire or
other casualty or from the repair and restoration of the
damage. Landlord and Tenant hereby waive the provisions of
any Law relating to the matters addressed in this Article,
and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically
provided in this Lease.
B. If all or any portion of the Premises shall be made
untenantable by fire or other casualty, Landlord shall, with
reasonable promptness, cause an architect or general
contractor selected by Landlord to provide Landlord and
Tenant with a written estimate of the amount of time
required to substantially complete the repair and
restoration of the Premises and make the Premises tenantable
<PAGE>
again, using standard working methods ("Completion
Estimate"). If the Completion Estimate indicates that the
Premises cannot be made tenantable within 270 days from the
date the repair and restoration is started, then regardless
of anything in Section XVII.A above to the contrary, either
party shall have the right to terminate this Lease by giving
written notice to the other of such election within 10 days
after receipt of the Completion Estimate. Tenant, however,
shall not have the right to terminate this Lease if the fire
or casualty was caused by the negligence or intentional
misconduct of Tenant, Tenant Related Parties or any of
Tenant's transferees, contractors or licensees.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the
Rent, if the failure continues for 3 days after written
notice to Tenant ("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, if the
failure is not cured within 10 days after written notice to
Tenant. However, if Tenant's failure to comply cannot
reasonably be cured within 10 days, Tenant shall be allowed
additional time (not to exceed 60 days) as is reasonably
necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 10 days, and (2) Tenant
diligently pursues a course of action that will cure the
failure and bring Tenant back into compliance with the
Lease. However, if Tenant's failure to comply creates a
hazardous condition, the failure must be cured immediately
upon notice to Tenant. In addition, if Landlord provides
Tenant with notice of Tenant's failure to comply with any
particular term, provision or covenant of the Lease on 3
occasions during any 12 month period, Tenant's subsequent
violation of such term, provision or covenant shall, at
Landlord's option, be an incurable event of default by
Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer
in fraud of creditors or makes an assignment for the benefit
of creditors, or admits in writing its inability to pay its
debts when due.
D. The leasehold estate is taken by process or operation of Law.
E. In the case of any ground floor or retail Tenant, Tenant does
not take possession of, or abandons or vacates all or any
portion of the Premises.
<PAGE>
F. Tenant is in default beyond any notice and cure period under
any other lease or agreement with Landlord, including,
without limitation, any lease or agreement for parking.
XX. Remedies.
A. Upon any default, Landlord shall have the right without notice
or demand (except as provided in Article XIX) to pursue any of
its rights and remedies at Law or in equity, including any one
or more of the following remedies:
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to
surrender the Premises, Landlord may, in compliance with
applicable Law and without prejudice to any other right or
remedy, enter upon and take possession of the Premises and
expel and remove Tenant, Tenant's Property and any party
occupying all or any part of the Premises. Tenant shall pay
Landlord on demand the amount of all past due Rent and other
losses and damages which Landlord may suffer as a result of
Tenant's default, whether by Landlord's inability to relet
the Premises on satisfactory terms or otherwise, including,
without limitation, all Costs of Reletting (defined below)
and any deficiency that may arise from reletting or the
failure to relet the Premises. "Costs of Reletting" shall
include all costs and expenses incurred by Landlord in
reletting or attempting to relet the Premises, including,
without limitation, reasonable legal fees, brokerage
commissions, the cost of alterations and the value of other
concessions or allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and,
in compliance with applicable Law, expel and remove Tenant,
Tenant's Property and any parties occupying all or any part
of the Premises. Landlord may (but shall not be obligated
to) relet all or any part of the Premises, without notice to
Tenant, for a term that may be greater or less than the
balance of the Term and on such conditions (which may
include concessions, free rent and alterations of the
Premises) and for such uses as Landlord in its absolute
discretion shall determine. Landlord may collect and receive
all rents and other income from the reletting. Tenant shall
pay Landlord on demand all past due Rent, all Costs of
Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be
responsible or liable for the failure to relet all or any
part of the Premises or for the failure to collect any Rent.
The re-entry or taking of possession of the Premises shall
not be construed as an election by Landlord to terminate
this Lease unless a written notice of termination is given
to Tenant.
3. In lieu of calculating damages under Sections XX.A.1 or
XX.A.2 above, Landlord may elect to receive as damages the
sum of (a) all Rent accrued through the date of termination
of this Lease or Tenant's right to possession, and (b) an
amount equal to the total Rent that Tenant would have been
required to pay for the remainder of the Term discounted to
present value at the Prime Rate (defined in Section XX.B.
below) then in effect, minus the then present fair rental
value of the Premises for the remainder of the Term,
similarly discounted, after deducting all anticipated Costs
of Reletting.
B. Unless expressly provided otherwise in this Lease, the
repossession or re-entering of all or any part of the
Premises shall not relieve Tenant of its liabilities and
obligations under the Lease. No right or remedy of Landlord
shall be exclusive of any other right or remedy. Each right
and remedy shall be cumulative and in addition to any other
right and remedy now or subsequently available to Landlord
at Law or in equity. If Landlord declares Tenant to be in
default, Landlord shall be entitled to receive interest on
any unpaid item of Rent at a rate equal to the Prime Rate
plus 4% per annum. For purposes hereof, the "Prime Rate"
shall be the per annum interest rate publicly announced as
its prime or base rate by a federally insured bank selected
by Landlord in the state in which the Building is located.
Forbearance by Landlord to enforce one or more remedies
shall not constitute a waiver of any default.
<PAGE>
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. Relocation.
Landlord, at its expense, at any time before or during the Term, may
relocate Tenant from the Premises to reasonably comparable space ("Relocation
Space") within the Building or adjacent buildings within the same project upon
60 days' prior written notice to Tenant. From and after the date of the
relocation, "Premises" shall refer to the Relocation Space into which Tenant has
been moved and the Base Rent and Tenant's Pro Rata Share shall be adjusted based
on the rentable square footage of the Relocation Space. Landlord shall pay
Tenant's reasonable costs for moving Tenant's furniture and equipment and
printing and distributing notices to Tenant's customers of Tenant's change of
address and one month's supply of stationery showing the new address.
XXV. Holding Over.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease and Tenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term, to create a tenancy-at-will under Florida law, or prevent Landlord from
immediate recovery of possession of the Premises by summary proceedings or
otherwise. In addition to the payment of the amounts provided above, if Landlord
is unable to deliver possession of the Premises to a new tenant, or to perform
improvements for a new tenant, as a result of Tenant's holdover and Tenant fails
to vacate the Premises within 15 days after Landlord notifies Tenant of
Landlord's inability to deliver possession, or perform improvements, Tenant
shall be liable to Landlord for all damages, including, without limitation,
consequential damages, that Landlord suffers from the holdover.
<PAGE>
XXVI. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a part
of Landlord's interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the other (including
a Mortgagee or prospective purchaser). The estoppel certificate shall include a
statement certifying that this Lease is unmodified (except as identified in the
estoppel certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to such party's
actual knowledge, there is no default (or stating the nature of the alleged
default) and indicating other matters with respect to the Lease that may
reasonably be requested.
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. Notice.
If a demand, request, approval, consent or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery (which, in the case of hand delivery, may be
deemed "actually delivered" by posting same on the exterior door of the Premises
or Landlord's management office, as the case may be) or the date on which
delivery is refused, or, if Tenant has vacated the Premises or the other Notice
Address of Tenant without providing a new Notice Address, three (3) days after
notice is deposited in the U.S. mail or with a courier service in the manner
described above. Either party may, at any time, change its Notice Address by
giving the other party written notice of the new address in the manner described
in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
<PAGE>
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property (defined in Article
XV) from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear excepted.
Tenant shall also be required to remove the Required Removables in accordance
with Article VIII. If Tenant fails to remove any of Tenant's Property within 2
days after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property without liability to Landlord.
Landlord shall not be responsible for the value, preservation or safekeeping of
Tenant's Property. Tenant shall pay Landlord, upon demand, the expenses and
storage charges incurred for Tenant's Property. In addition, if Tenant fails to
remove Tenant's Property from the Premises or storage, as the case may be,
within 30 days after written notice, Landlord may deem all or any part of
Tenant's Property to be abandoned, and title to Tenant's Property shall be
deemed to be immediately vested in Landlord.
XXXI. Miscellaneous.
A. This Lease and the rights and obligations of the parties
shall be interpreted, construed and enforced in accordance
with the Laws of the state in which the Building is located
and Landlord and Tenant hereby irrevocably consent to the
jurisdiction and proper venue of such state. If any term or
provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be
affected, and each provision of this Lease shall be valid
and enforced to the fullest extent permitted by Law. The
headings and titles to the Articles and Sections of this
Lease are for convenience only and shall have no effect on
the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury
in any proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of
days that the performance is actually delayed due to strikes,
acts of God, shortages of labor or materials, war, civil
disturbances and other causes beyond the reasonable control of
the performing party ("Force Majeure"). However, events of
Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right
by either party.
E. Landlord shall have the right to transfer and assign, in whole
or in part, all of its rights and obligations under this Lease
and in the Building and/or Property referred to herein, and
upon such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such
obligations.
F. Tenant represents that it has dealt directly with and only
with the Broker as a broker in connection with this Lease.
Tenant shall indemnify and hold Landlord and the Landlord
Related Parties harmless from all claims of any other brokers,
agents or finders claiming to have represented Tenant in
connection with this Lease. Landlord agrees to indemnify and
hold Tenant and the Tenant Related Parties harmless from all
claims of any brokers, agents or finders claiming to have
represented Landlord in connection with this Lease.
G. Tenant covenants, warrants and represents that: (1) each
individual executing, attesting and/or delivering this Lease
on behalf of Tenant is authorized to do so on behalf of
Tenant; (2) this Lease is binding upon Tenant; and (3)
Tenant is duly organized and legally existing in the state
of its organization and is qualified to do business in the
state in which the Premises are located. If there is more
than one Tenant, or if Tenant is comprised of more than one
party or entity, the obligations imposed upon Tenant shall
be joint and several obligations of all the parties and
entities. Notices, payments and agreements given or made by,
with or to any one person or entity shall be deemed to have
been given or made by, with and to all of them.
<PAGE>
H. Time is of the essence with respect to payment of Rent and
Tenant's exercise of any expansion, renewal or extension
rights granted to Tenant. This Lease shall create only the
relationship of landlord and tenant between the parties, and
not a partnership, joint venture or any other relationship.
This Lease and the covenants and conditions in this Lease
shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and
assigns.
I. The expiration of the Term, whether by lapse of time or
otherwise, shall not relieve either party of any obligations
which accrued prior to or which may continue to accrue after
the expiration or early termination of this Lease. Without
limiting the scope of the prior sentence, it is agreed that
Tenant's obligations under Sections IV.A, IV.B., VIII, XIV,
XX, XXV and XXX shall survive the expiration or early
termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery of it does not
constitute an offer to Tenant or an option. This Lease shall
not be effective against any party hereto until an original
copy of this Lease has been signed by such party.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is
relying upon any warranty, statement or representation not
contained in this Lease. This Lease may be modified only by a
written agreement signed by Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord
with a current financial statement and such other information
as Landlord may reasonably request in order to create a
"business profile" of Tenant and determine Tenant's ability to
fulfill its obligations under this Lease. Landlord, however,
shall not require Tenant to provide such information unless
Landlord is requested to produce the information in connection
with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a
commercially reasonable confidentiality agreement covering any
confidential information that is disclosed by Tenant.
M. Pursuant to Florida Statute 404.056 (subsection 8), Tenant is
hereby notified that radon is naturally occurring radioactive
gas that, when accumulated in a building in sufficient
quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may
be obtained from your county public health unit.
XXXII. Entire Agreement.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: Exhibit A (Outline and Location of Premises),
Exhibit B (Rules and Regulations), Exhibit C (Commencement Letter -
(Intentionally Deleted)), Exhibit D (Work Letter Agreement) and Exhibit E
(Additional Provisions).
<PAGE>
Landlord and Tenant have executed this Lease as of the day and year
first above written.
WITNESS/ATTEST: LANDLORD:
SUNTRUST CENTER, L.L.C., a Delaware limited liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its administrative managing
member
By: Equity Office Properties Trust, a Maryland real
estate investment trust, its managing general
partner
__________________________ By:__________________________
Name (print): ________________ Name:__________________________
___________________________ Title:__________________________
Name (print):________________
WITNESS/ATTEST: TENANT:
GSI TECHNOLOGIES USA INC., a Delaware
corporation
By:_____________________________
Name:_____________________________
Name (print): ________________
Title:_____________________________
_______________________________
Name (print): ________________
______________________________
_____________
<PAGE>
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 2000, by and between SUNTRUST CENTER, L.L.C. ("Landlord") and GSI
TECHNOLOGIES USA INC. ("Tenant") for space in the Building located at 200/250
South Orange Avenue, Orlando, Florida 32801, commonly known as SunTrust Center.
<PAGE>
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or thrown
in those areas. At no time shall Tenant permit Tenant's employees to
loiter in Common Areas or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances.
Damage resulting to fixtures or appliances by Tenant, its agents,
employees or invitees, shall be paid for by Tenant, and Landlord shall
not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing
by Landlord. All tenant identification and suite numbers at the
entrance to the Premises shall be installed by Landlord, at Tenant's
cost and expense, using the standard graphics for the Building. Except
in connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part
of the Premises or Building except by the Building maintenance
personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board or other directory device
listing tenants, and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent and Landlord shall
have the right to retain at all times and to use keys to all locks
within and into the Premises. A reasonable number of keys to the locks
on the entry doors in the Premises shall be furnished by Landlord to
Tenant at Tenant's cost, and Tenant shall not make any duplicate keys.
All keys shall be returned to Landlord at the expiration or early
termination of this Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, which
may be revised from time to time.
7. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of merchandise or materials
requiring the use of elevators, stairways, lobby areas or loading
dock areas, shall be restricted to hours designated by Landlord.
Tenant shall obtain Landlord's prior approval by providing a
detailed listing of the activity. If approved by Landlord, the
activity shall be under the supervision of Landlord and performed in
the manner required by Landlord. Tenant shall assume all risk for
damage to articles moved and injury to any persons resulting from
the activity. If equipment, property, or personnel of Landlord
or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location
of heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or
removal of property of Tenant shall be repaired at Tenant's sole
expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
<PAGE>
any way with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed, in any
portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building
that might, in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be
brought into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances
shall be used or kept by Tenant in the Premises, Building or about the
Property. Tenant shall not, without Landlord's prior written
consent, use, store, install, spill, remove, release or dispose
of, within or about the Premises or any other portion of the Property,
any asbestos-containing materials or any solid, liquid or gaseous
material now or subsequently considered toxic or hazardous under the
provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental Law which may now or later be in effect. Tenant shall
comply with all Laws pertaining to and governing the use of these
materials by Tenant, and shall remain solely liable for the costs of
abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises or the Building. Tenant shall not use, or
permit any part of the Premises to be used, for lodging, sleeping or
for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's
labor contracts or which would cause a work stoppage, picketing,
labor disruption or dispute, or interfere with Landlord's or
any other tenant's or occupant's business or with the rights and
privileges of any person lawfully in the Building("Labor Disruption").
Tenant shall take the actions necessary to resolve the Labor
Disruption, and shall have pickets removed and, at the request of
Landlord, immediately terminate any work in the Premises that gave
rise to the Labor Disruption, until Landlord gives its written
consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties,
nor shall the date of the commencement of the Term be extended as a
result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload
the electrical system beyond its capacity for proper, efficient and
safe operation as determined solely by Landlord. Tenant shall not
furnish cooling or heating to the Premises, including, without
limitation, the use of electronic or gas heating devices, without
Landlord's prior written consent. Tenant shall not use more than its
proportionate share of telephone lines and other telecommunication
facilities available to service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's
employees, and then only if the operation does not violate the lease of
any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building
or on the walkways outside the Building, except in areas designated
by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and
invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole
opinion may impair the reputation of the Building or its desirability.
Upon written notice from Landlord, Tenant shall refrain from and
discontinue such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or
the Property.
<PAGE>
21. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless the
Common Areas have been declared a designated smoking area by Landlord,
nor shall the above parties allow smoke from the Premises to emanate
into the Common Areas or any other part of the Building. Landlord shall
have the right to designate the Building (including the Premises) as a
non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure,
to the extent reasonably practicable, that window coverings are closed
on windows in the Premises while they are exposed to the direct rays of
the sun.
23. Deliveries to and from the Premises shall be made only at the times, in
the areas and through the entrances and exits designated by Landlord.
Tenant shall not make deliveries to or from the Premises in a manner
that might interfere with the use by any other tenant of its premises
or of the Common Areas, any pedestrian use, or any use which is
inconsistent with good business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and cleaning work may be done at any time when the offices
are vacant. Windows, doors and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
<PAGE>
EXHIBIT C
COMMENCEMENT LETTER
INTENTIONALLY DELETED
<PAGE>
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 2000, by and between SUNTRUST CENTER, L.L.C. ("Landlord") and
_GSI TECHNOLOGIES USA INC. ("Tenant") for space in the Building located at
200/250 South Orange Avenue, Orlando, Florida 32801, commonly known as SunTrust
Center.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
All improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord are hereinafter referred to as the
"Landlord Work." It is agreed that construction of the Landlord Work
will be completed at Tenant's sole cost and expense, subject to the
Allowance (as defined below). Landlord shall enter into a direct
contract for the Landlord Work with a general contractor selected by
Landlord. In addition, Landlord shall have the right to select and/or
approve of any subcontractors used in connection with the Landlord
Work.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications
(called "Plans") necessary to construct the Landlord Work, which
plans shall be subject to approval by Landlord and Landlord's
architect and engineers and shall comply with their requirements to
avoid aesthetic or other conflicts with the design and function of
the balance of the Building. Tenant shall be responsible for all
elements of the design of Tenant's plans (including, without
limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the
premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of Tenant's plans shall in no
event relieve Tenant of the responsibility for such design. If
requested by Tenant, Landlord's architect will prepare the Plans
necessary for such construction at Tenant's cost. Whether or not the
layout and Plans are prepared with the help (in whole or in part)
of Landlord's architect, Tenant agrees to remain solely responsible
for the timely preparation and submission of the Plans and for all
elements of the design of such Plans and for all costs related
thereto. (The word "architect" as used in this Exhibit D shall
include an interior designer or space planner.)
3. In the event Landlord's estimate and/or the actual cost of
construction shall exceed the Allowance, Landlord, prior to
commencing any construction of Landlord Work, shall submit to
Tenant a written estimate setting forth the anticipated cost of the
Landlord Work, including but not limited to labor and materials,
contractor's fees and permit fees. Within three (3) Business Days
thereafter, Tenant shall either notify Landlord in writing of its
approval of the cost estimate, or specify its objections thereto
and any desired changes to the proposed Landlord Work. In the event
Tenant notifies Landlord of such objections and desired changes,
Tenant shall work with Landlord to reach a mutually acceptable
alternative cost estimate.
4 In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the
Allowance being herein referred to as the "Excess Costs"), Tenant shall
pay to Landlord such Excess Costs, plus any applicable state sales or
use tax thereon, upon demand. The statements of costs submitted to
Landlord by Landlord's contractors shall be conclusive for purposes of
determining the actual cost of the items described therein. The amounts
payable by Tenant hereunder constitute Rent payable pursuant to the
Lease, and the failure to timely pay same constitutes an event of
default under the Lease.
5. If Tenant shall request any change, addition or alteration in
any of the Plans after approval by Landlord, Landlord shall have
such revisions to the drawings prepared, and Tenant shall
reimburse Landlord for the cost thereof, plus any applicable
state sales or use tax thereon, upon demand. Promptly upon
completion of the revisions, Landlord shall notify Tenant in writing
of the increased cost which will be chargeable to Tenant by reason
of such change, addition or deletion. Tenant, within one (1)
Business Day, shall notify Landlord in writing whether it desires
to proceed with such change, addition or deletion. In the absence
of such written authorization, Landlord shall have the option to
continue work on the Premises disregarding the requested change,
addition or alteration, or Landlord may elect to discontinue work on
the Premises until it receives notice of Tenant's decision. In the
event such revisions result in a higher estimate of the cost of
construction and/or higher actual construction costs which exceed the
Allowance, such increased estimate or costs shall be deemed Excess
Costs pursuant to Paragraph 4 hereof and Tenant shall pay such Excess
Costs, plus any applicable state sales or use tax thereon, upon
demand.
<PAGE>
6. Following approval of the Plans and the payment by Tenant of the
required portion of the Excess Costs, if any, Landlord shall cause the
Landlord Work to be constructed substantially in accordance with the
approved Plans. Landlord shall notify Tenant of substantial completion
of the Landlord Work.
7. Landlord, provided Tenant is not in default, agrees to provide
Tenant with an allowance (the "Allowance") in an amount not to
exceed $11,155.00 (i.e., $5.00 per rentable square foot of the
Premises) to be applied toward the cost of the Landlord Work
in the Premises. In the event the Allowance shall not be sufficient
to complete the Landlord Work, Tenant shall pay the Excess Costs,
plus any applicable state sales or use tax thereon, as prescribed
in paragraph 4 above. In the event Tenant does not use the entire
Allowance by September 1, 2000, any unused amount shall accrue
to the sole benefit of Landlord, it being agreed that Tenant shall
not be entitled to any credit, offset, abatement or payment with
respect thereto.
8. Tenant acknowledges that the Landlord Work may be performed by
Landlord in the Premises during Normal Business Hours subsequent to
the Commencement Date. Landlord and Tenant agree to cooperate with
each other in order to enable the Landlord Work to be performed
in a timely manner and with as little inconvenience to the
operation of Tenant's business as is reasonably possible.
Notwithstanding anything herein to the contrary, any delay in the
completion of the Landlord Work or inconvenience suffered by
Tenant during the performance of the Landlord Work shall not delay
the Commencement Date nor shall it subject Landlord to any liability
for any loss or damage resulting therefrom, or entitle Tenant to any
credit, abatement or adjustment of Rent or other sums payable under the
Lease.
9. This Exhibit D shall not be deemed applicable to any additional space
added to the original Premises at any time or from time to time,
whether by any options under the Lease or otherwise, or to any portion
of the original Premises or any additions to the Premises in the event
of a renewal or extension of the original Term of this Lease, whether
by any options under the Lease or otherwise, unless expressly so
provided in the Lease or any amendment or supplement to the Lease.
<PAGE>
Landlord and Tenant have executed this exhibit as of the day and year
first above written.
WITNESS/ATTEST: LANDLORD:
SUNTRUST CENTER, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its
administrative managing member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general
partner
__________________________ By: _________________________
Name (print): ________________ Name: _________________________
___________________________ Title: _________________________
Name (print): ________________
WITNESS/ATTEST: TENANT:
GSI TECHNOLOGIES USA INC., a Delaware corporation
By: _____________________________
Name(print):_______________ Name: _____________________________
___________________________ Title: _____________________________
Name (print): ________________
______________________________
<PAGE>
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 2000, by and between SUNTRUST CENTER, L.L.C. ("Landlord") and GSI
TECHNOLOGIES USA INC. ("Tenant") for space in the Building located at 200/250
South Orange Avenue, Orlando, Florida 32801, commonly known as SunTrust Center.
I. PARKING.
A. During the initial Term, Landlord shall lease to Tenant, or
cause the operator (the "Operator") of the garage servicing
the Building (the "Garage") to lease to Tenant, and Tenant
shall lease from Landlord or such Garage Operator, four (4)
unreserved parking spaces (collectively, the "Spaces") in,
or on the roof of, the Garage or in the surface parking
areas, if any, serving the Building (collectively, the
"Parking Areas") for the use of Tenant and its employees.
The unreserved Spaces shall be leased at the rate of $75.00
per Space, per month, plus applicable tax thereon, as such
rates may be adjusted from time-to-time to reflect the then
current rate for such parking in the Parking Areas. If
requested by Landlord, Tenant shall execute and deliver to
Landlord the standard parking agreement used by Landlord or
the Garage Operator (the "Parking Agreement") for the
Parking Areas or any portion thereof for such Spaces.
B. No deductions or allowances shall be made for days when
Tenant or any of its employees does not utilize the parking
facilities or for Tenant utilizing less than all of the
Spaces. Tenant shall not have the right to lease or
otherwise use more than the number of Spaces set forth
above.
C. Except for particular spaces and areas designated by
Landlord or the Operator for reserved parking, all parking
in the Parking Areas shall be on an unreserved, first-come,
first-served basis.
D. Landlord shall not be responsible for money, jewelry,
automobiles or other personal property lost in or stolen
from the Parking Areas regardless of whether such loss or
theft occurs when the Garage or other portions of the
Parking Area are locked or otherwise secured. Except as
caused by the negligence or willful misconduct of Landlord
and without limiting the terms of the preceding sentence,
Landlord shall not be liable for any loss, injury or damage
to persons using the Parking Areas or automobiles or other
property therein, it being agreed that, to the fullest
extent permitted by law, the use of the Spaces shall be at
the sole risk of Tenant and its employees.
E. Landlord or its Operator shall have the right from time to
time to designate the location of the Spaces and to
promulgate reasonable rules and regulations regarding the
Parking Areas, the Spaces and the use thereof, including,
but not limited to, rules and regulations controlling the
flow of traffic to and from various parking areas, the angle
and direction of parking and the like. Tenant shall comply
with and cause its employees to comply with all such rules
and regulations, all reasonable additions and amendments
thereto, and the terms and provisions of the Parking
Agreement. In the event of a conflict between the terms and
provisions of this Lease and the Parking Agreement, the
terms and provisions of this Lease shall control.
F. Tenant shall not store or permit its employees to store any
automobiles in the Garage or on any other portion of the
Parking Areas without the prior written consent of Landlord.
Except for emergency repairs, Tenant and its employees shall
not perform any work on any automobiles while located in the
Parking Areas or on the Property. If it is necessary for
Tenant or its employees to leave an automobile in the Garage
or on any other portion of the Parking Areas overnight,
Tenant shall provide Landlord with prior notice thereof
designating the license plate number and model of such
automobile.
<PAGE>
G. Landlord shall have the right to temporarily close the Garage
or, certain areas therein, or any other portion of the Parking
Areas in order to perform necessary repairs, maintenance and
improvements to the Garage or any other portion of the Parking
Areas.
H. Tenant shall not assign or sublease any of the Spaces without
the consent of Landlord. Landlord shall have the right to
terminate the agreement contained in this Section I or in the
Parking Agreement with respect to any Spaces that Tenant
desires to sublet or assign.
I. Landlord may elect to provide parking cards or keys to control
access to the Garage or any other portion of the Parking
Areas. In such event, Landlord shall provide Tenant with one
card or key for each Space that Tenant is leasing hereunder,
provided that Landlord shall have the right to require Tenant
or its employees to place a deposit on such access cards or
keys and to pay a fee for any lost or damaged cards or keys.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as
of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
SUNTRUST CENTER, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its
administrative managing member
By: Equity Office Properties Trust, a
Maryland real estate investment trust, its
managing general partner
__________________________ By:__________________________
Name (print):_____________ Name:__________________________
__________________________ Title:__________________________
Name (print): ___________
__________________________
WITNESS/ATTEST: TENANT:
GSI TECHNOLOGIES USA INC., a Delaware corporation
By:_____________________________
_____________________________
Name:___________________________
Name (print): ______________
Title:__________________________
_____________________________
Name (print):________________
_____________________________
