<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 11, 1996
REGISTRATION NO. 333-4515
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
CITRIX SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7372 75-2275152
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction Classification Code Number) Identification Number)
of incorporation or
organization)
210 UNIVERSITY DRIVE, SUITE 700, CORAL SPRINGS, FL 33071
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
ROGER W. ROBERTS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CITRIX SYSTEMS, INC.
210 UNIVERSITY DRIVE, SUITE 700
CORAL SPRINGS, FL 33071
(954) 755-0559
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
GEORGE W. THIBEAULT, ESQ. JOHN A. BURGESS, ESQ.
JONATHAN M. MOULTON, ESQ. PHILIP P. ROSSETTI, ESQ.
TESTA, HURWITZ & THIBEAULT, LLP HALE AND DORR
HIGH STREET TOWER, 125 HIGH STREET 60 STATE STREET
BOSTON, MASSACHUSETTS 02110 BOSTON, MASSACHUSETTS 02109
(617) 248-7000 (617) 526-6000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, check the following box. [_]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Form S-1 Registration Statement is a Part II
filing solely to file certain exhibits and make other technical changes.
Accordingly, a preliminary prospectus has been omitted.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (other than underwriting discounts and commissions)
payable in connection with the sale of the Common Stock offered hereby are as
follows:
<TABLE>
<S> <C>
Registration fee................................................ $ 36,859
NASD filing fee................................................. 17,500
Nasdaq National Market listing fee.............................. 11,190
Printing and engraving expenses................................. 120,000
Legal fees and expenses......................................... 150,000
Accounting fees and expenses.................................... 40,000
Blue Sky fees and expenses (including legal fees)............... 12,000
Transfer agent and registrar fees and expenses.................. 2,500
Directors and Officers liability insurance...................... 17,500
Miscellaneous................................................... 92,451
--------
Total....................................................... $500,000
========
</TABLE>
The Company will bear all expenses shown above.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Registrant's Restated
Certificate of Incorporation and Restated By-Laws provide for indemnification
of the Registrant's directors and officers for liabilities and expenses that
they may incur in such capacities. In general, directors and officers are
indemnified with respect to actions taken in good faith in a manner reasonably
believed to be in, or not opposed to, the best interests of the Registrant,
and with respect to any criminal action or proceeding, actions that the
indemnitee had no reasonable cause to believe were unlawful. Reference is made
to the Registrant's Form of Amended and Restated Certificate of Incorporation
and Form of Amended and Restated By-Laws filed as Exhibits 3.2 and 3.4,
respectively, to the Company's Registration Statement on Form S-1 (No. 33-
98542).
The Company has entered into standard indemnification agreements with its
officers and directors pursuant to which the Company has agreed to indemnify
them with respect to actions taken in good faith in a manner reasonably
believed to be in, or not opposed to, the best interests of the Company.
The Underwriting Agreement provides that the Underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of the Company against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the "Act"). Reference is made to
the form of Underwriting Agreement filed as Exhibit 1.1 hereto.
The Company has obtained directors and officers liability insurance for the
benefit of its directors and certain of its officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this registration statement, the
Company has issued the following securities that were not registered under the
Securities Act:
(a) Issuances of Capital Stock.
On November 2, 1992 and January 25, 1993, the Company issued warrants to
purchase an aggregate of 77,894 shares of Series C Convertible Preferred Stock
to certain existing stockholders at an exercise price per share of $1.45.
II-1
<PAGE>
On February 26, 1993, the Company sold an aggregate of 1,101,230 shares of
Series D Redeemable Convertible Preferred Stock to certain new and existing
stockholders for an aggregate purchase price of $2,037,276.
On April 16, 1993, the Company sold an aggregate of 270,270 shares of Series
D Redeemable Convertible Preferred Stock to certain new investors for an
aggregate purchase price of $499,999.50.
On June 11, 1993, the Company sold an aggregate of 540,540 shares of Series
D Redeemable Convertible Preferred Stock to a new stockholder for an aggregate
purchase price of $999,999.00.
On February 28, 1994, the Company sold an aggregate of 682,128 shares of
Series D Preferred Stock to certain new and existing stockholders for an
aggregate purchase price of $1,261,937.
(b) Certain Grants and Exercises of Stock Options.
Since June 1, 1993 the Company has issued options under its 1989 Stock Plan,
1995 Stock Plan and the Director Option Plan to purchase an aggregate of
2,393,968 shares of Common Stock, exercisable at a weighted average price of
$2.07.
Since June 1, 1993, the Company has issued 1,565,512 shares of Common Stock
upon the exercise of stock options.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by
an issuer not involving any public offering or the rules and regulations
thereunder, or, in the case of options to purchase Common Stock, Rule 701 of
the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
*1.1 --Form of Underwriting Agreement.
3.1 --Form of Amended and Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3.2 of Registration
Statement No. 33-98542).
3.2 --Certificate of Amendment of Amended and Restated Certificate of
Incorporation.
3.3 --By-Laws of the Company (Incorporated by reference to Exhibit 3.3
of Registration Statement No. 33-98542).
3.4 --Form of Amended and Restated By-Laws of the Company
(Incorporated by reference to Exhibit 3.4 of Registration
Statement No. 33-98542).
4.1 --Specimen certificate representing the Common Stock (Incorporated
by reference to Exhibit 4.1 of Registration Statement No. 33-
98542).
*5.1 --Opinion of Testa, Hurwitz & Thibeault, LLP.
10.1 --1989 Stock Option Plan (Incorporated by reference to Exhibit
10.1 of Registration Statement No. 33-98542).
10.2 --1995 Stock Plan (Incorporated by reference to Exhibit 10.2 of
Registration Statement
No. 33-98542).
10.3 --1995 Non-Employee Director Stock Option Plan (Incorporated by
reference to Exhibit 10.3 of Registration Statement No. 33-
98542).
10.4 --1995 Employee Stock Purchase Plan, as amended (Incorporated by
reference to Exhibit 10.4 of Registration Statement No. 33-
98542).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
10.5 --OEM Software License Agreement between the Company and Digital
Communications Associates, Inc., dated as of October 5, 1993
(Incorporated by reference to Exhibit 10.5 of Registration
Statement No. 33-98542).
10.6 --Memorandum of Agreement between the Company and Digital
Communications Associates, Inc., dated October 5, 1993
(Incorporated by reference to Exhibit 10.6 of Registration
Statement No. 33-98542).
10.7 --First Addendum to OEM Software License Agreement between the
Company and Digital Communications Associates, Inc., dated May
25, 1994 (Incorporated by reference to Exhibit 10.7 of
Registration Statement No. 33-98542).
10.8 --Amendment No. 1 to OEM Software License Agreement between the
Company and Digital Communications Associates, Inc., dated March
23, 1995 (Incorporated by reference to Exhibit 10.8 of
Registration Statement No. 33-98542).
10.9 --Client/Server Software License Agreement between the Company and
Insignia Solutions Inc., dated August 4, 1995 (Incorporated by
reference to Exhibit 10.9 of Registration Statement No. 33-
98542).
10.10 --Microsoft Corporation Source Code Agreement between the Company
and Microsoft Corporation dated November 15, 1989 (Incorporated
by reference to Exhibit 10.10 of Registration Statement No. 33-
98542).
10.11 --Amendment No. 1 to the Source Code Agreement between Microsoft
and the Company dated October 1, 1992 (Incorporated by reference
to Exhibit 10.11 of Registration Statement No. 33-98542).
10.12 --License Agreement for Microsoft OS/2 Version Releases 1.x, 2.x
between the Company and Microsoft Corporation dated August 15,
1990 (Incorporated by reference to Exhibit 10.12 of Registration
Statement No. 33-98542).
10.13 --Amendment No. 1 to the License Agreement between the Company and
Microsoft Corporation dated August 15, 1990, Contract No. 5198-
0228 dated May 6, 1991 (Incorporated by reference to Exhibit
10.13 of Registration Statement No. 33-98542).
10.14 --Amendment No. 2 to License Agreement between Microsoft
Corporation and the Company for Microsoft OS/2 Version Releases
1.X, 2.X, dated October 1, 1992 (Incorporated by reference to
Exhibit 10.14 of Registration Statement No. 33-98542).
10.15 --Amendment No. 3 to the License Agreement between the Company and
Microsoft Corporation dated August 15, 1990, Contract No. 5198-
0228 dated January 1, 1994 (Incorporated by reference to Exhibit
10.15 of Registration Statement No. 33-98542).
10.16 --Amendment No. 4 to the License Agreement between the Company and
Microsoft Corporation dated August 15, 1990, dated January 31,
1995 (Incorporated by reference to Exhibit 10.16 of Registration
Statement No. 33-98542).
10.17 --Strategic Alliance Agreement between the Company and Microsoft
Corporation dated December 12, 1991 (Incorporated by reference to
Exhibit 10.17 of Registration Statement No. 33-98542).
10.18 --Software Development and License Agreement between the Company
and Novell, Inc., dated June 15, 1992 (Incorporated by reference
to Exhibit 10.18 of Registration Statement No. 33-98542).
10.19 --Software Development and License Agreement between the Company
and Novell, Inc., dated July 1, 1993 (Incorporated by reference
to Exhibit 10.19 of Registration Statement No. 33-98542).
10.20 --First Amendment to the Software Development and License
Agreement between Novell, Inc., and the Company, dated March 7,
1995 (Incorporated by reference to Exhibit 10.20 of Registration
Statement No. 33-98542).
10.21 --NetWare Client License Agreement between the Company and Novell,
Inc., dated June 14, 1995 (Incorporated by reference to Exhibit
10.21 of Registration Statement No. 33-98542).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
10.22 --Software License Agreement between the Company and Tektronix,
Inc., dated September 23, 1994 (Incorporated by reference to
Exhibit 10.22 of Registration Statement No. 33-98542).
10.23 --Client Software License Agreement between the Company and Wyse
Technology dated June 15, 1995 (Incorporated by reference to
Exhibit 10.23 of Registration Statement No. 33-98542).
10.24 --Client/Server Software License Agreement between the Company and
Zenith Data Systems Corporation dated June 21, 1995 (Incorporated
by reference to Exhibit 10.24 of Registration Statement No. 33-
98542).
10.25 --Series D Preferred Stock Purchase Agreement between the Company
and the parties thereto, dated February 26, 1993 (Incorporated by
reference to Exhibit 10.25 of Registration Statement No. 33-
98542).
10.26 --Form of Indemnification Agreement (Incorporated by reference to
Exhibit 10.26 of Registration Statement No. 33-98542).
10.27 --Lease Agreement between Halmos Trading and Investment Company
and the Company dated June 6, 1996.
*11.1 --Computation of per share earnings (losses).
*23.1 --Consent of Ernst & Young LLP.
*23.2 --Consent of Testa, Hurwitz & Thibeault (included in Exhibit 5.1).
*24.1 --Power of Attorney
*27 --Financial Data Schedule.
</TABLE>
- --------
* Previously Filed
(b) Financial Statement Schedules:
<TABLE>
<CAPTION>
SEQUENTIAL
PAGE NO.
----------
<S> <C>
Report of Independent Certified Public Accountants on Financial
Statement Schedule............................................. S-1
Schedule II--Valuation and Qualifying Accounts.................. S-2
</TABLE>
All other schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable and therefore, have been omitted.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 14 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned registrant hereby undertakes (1) that for purposes of
determining any liability under the Securities Act, the information omitted
from the form of prospectus filed as part of a registration statement in
reliance upon Rule 430A and contained in the form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of the time
it was declared effective; and (2) that for the purpose of determining any
liability under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in Coral Springs,
Florida, on June 11, 1996.
Citrix Systems, Inc.
/s/ Roger W. Roberts
By: _________________________________
ROGER W. ROBERTS PRESIDENT AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE(S) DATE
Chairman of the
/s/ Edward E. Iacobucci* Board of Directors June 11, 1996
- -------------------------------------
EDWARD E. IACOBUCCI
/s/ Roger W. Roberts
- ------------------------------------- President, Chief
ROGER W. ROBERTS Executive Officer June 11, 1996
and Director
(Principal
Executive Officer)
Vice President of
/s/ James J. Felcyn, Jr.* Finance and June 11, 1996
- ------------------------------------- Administration and
JAMES J. FELCYN, JR. Chief Financial
Officer (Principal
Financial and
Accounting Officer)
Director
/s/ Kevin R. Compton* June 11, 1996
- -------------------------------------
KEVIN R. COMPTON
Director
/s/ Stephen M. Dow* June 11, 1996
- -------------------------------------
STEPHEN M. DOW
/s/ Robert N. Goldman* Director
- ------------------------------------- June 11, 1996
ROBERT N. GOLDMAN
/s/ Gregory B. Maffei* Director
- ------------------------------------- June 11, 1996
GREGORY B. MAFFEI
/s/ Tyrone F. Pike* Director
- ------------------------------------- June 11, 1996
TYRONE F. PIKE
/s/ Roger W. Roberts
*By: ___________________________
ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<C> <S> <C>
*1.1 --Form of Underwriting Agreement.
3.1 --Form of Amended and Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3.2 of Registration
Statement No. 33-98542).
3.2 --Certificate of Amendment of Amended and Restated
Certificate of Incorporation.
3.3 --By-Laws of the Company (Incorporated by reference to
Exhibit 3.3 of Registration Statement No. 33-98542).
3.4 --Form of Amended and Restated By-Laws of the Company
(Incorporated by reference to Exhibit 3.4 of Registration
Statement No. 33-98542).
4.1 --Specimen certificate representing the Common Stock
(Incorporated by reference to Exhibit 4.1 of Registration
Statement No. 33-98542).
*5.1 --Opinion of Testa, Hurwitz & Thibeault, LLP.
10.1 --1989 Stock Option Plan (Incorporated by reference to
Exhibit 10.1 of Registration Statement No. 33-98542).
10.2 --1995 Stock Plan (Incorporated by reference to Exhibit
10.2 of Registration Statement
No. 33-98542).
10.3 --1995 Non-Employee Director Stock Option Plan
(Incorporated by reference to Exhibit 10.3 of Registration
Statement No. 33-98542).
10.4 --1995 Employee Stock Purchase Plan, as amended
(Incorporated by reference to Exhibit 10.4 of Registration
Statement No. 33-98542).
10.5 --OEM Software License Agreement between the Company and
Digital Communications Associates, Inc., dated as of
October 5, 1993 (Incorporated by reference to Exhibit 10.5
of Registration Statement No. 33-98542).
10.6 --Memorandum of Agreement between the Company and Digital
Communications Associates, Inc., dated October 5, 1993
(Incorporated by reference to Exhibit 10.6 of Registration
Statement No. 33-98542).
10.7 --First Addendum to OEM Software License Agreement between
the Company and Digital Communications Associates, Inc.,
dated May 25, 1994 (Incorporated by reference to Exhibit
10.7 of Registration Statement No. 33-98542).
10.8 --Amendment No. 1 to OEM Software License Agreement between
the Company and Digital Communications Associates, Inc.,
dated March 23, 1995 (Incorporated by reference to Exhibit
10.8 of Registration Statement No. 33-98542).
10.9 --Client/Server Software License Agreement between the
Company and Insignia Solutions Inc., dated August 4, 1995
(Incorporated by reference to Exhibit 10.9 of Registration
Statement No. 33-98542).
10.10 --Microsoft Corporation Source Code Agreement between the
Company and Microsoft Corporation dated November 15, 1989
(Incorporated by reference to Exhibit 10.10 of
Registration Statement No. 33-98542).
10.11 --Amendment No. 1 to the Source Code Agreement between
Microsoft and the Company dated October 1, 1992
(Incorporated by reference to Exhibit 10.11 of
Registration Statement No. 33-98542).
10.12 --License Agreement for Microsoft OS/2 Version Releases
1.x, 2.x between the Company and Microsoft Corporation
dated August 15, 1990 (Incorporated by reference to
Exhibit 10.12 of Registration Statement No. 33-98542).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<C> <S> <C>
10.13 --Amendment No. 1 to the License Agreement between the
Company and Microsoft Corporation dated August 15, 1990,
Contract No. 5198-0228 dated May 6, 1991 (Incorporated by
reference to Exhibit 10.13 of Registration Statement No.
33-98542).
10.14 --Amendment No. 2 to License Agreement between Microsoft
Corporation and the Company for Microsoft OS/2 Version
Releases 1.X, 2.X, dated October 1, 1992 (Incorporated by
reference to Exhibit 10.14 of Registration Statement No.
33-98542).
10.15 --Amendment No. 3 to the License Agreement between the
Company and Microsoft Corporation dated August 15, 1990,
Contract No. 5198-0228 dated January 1, 1994 (Incorporated
by reference to Exhibit 10.15 of Registration Statement
No. 33-98542).
10.16 --Amendment No. 4 to the License Agreement between the
Company and Microsoft Corporation dated August 15, 1990,
dated January 31, 1995 (Incorporated by reference to
Exhibit 10.16 of Registration Statement No. 33-98542).
10.17 --Strategic Alliance Agreement between the Company and
Microsoft Corporation dated December 12, 1991
(Incorporated by reference to Exhibit 10.17 of
Registration Statement No. 33-98542).
10.18 --Software Development and License Agreement between the
Company and Novell, Inc., dated June 15, 1992
(Incorporated by reference to Exhibit 10.18 of
Registration Statement No. 33-98542).
10.19 --Software Development and License Agreement between the
Company and Novell, Inc., dated July 1, 1993 (Incorporated
by reference to Exhibit 10.19 of Registration Statement
No. 33-98542).
10.20 --First Amendment to the Software Development and License
Agreement between Novell, Inc., and the Company, dated
March 7, 1995 (Incorporated by reference to Exhibit 10.20
of Registration Statement No. 33-98542).
10.21 --NetWare Client License Agreement between the Company and
Novell, Inc., dated June 14, 1995 (Incorporated by
reference to Exhibit 10.21 of Registration Statement No.
33-98542).
10.22 --Software License Agreement between the Company and
Tektronix, Inc., dated September 23, 1994 (Incorporated by
reference to Exhibit 10.22 of Registration Statement No.
33-98542).
10.23 --Client Software License Agreement between the Company and
Wyse Technology dated June 15, 1995 (Incorporated by
reference to Exhibit 10.23 of Registration Statement No.
33-98542).
10.24 --Client/Server Software License Agreement between the
Company and Zenith Data Systems Corporation dated June 21,
1995 (Incorporated by reference to Exhibit 10.24 of
Registration Statement No. 33-98542).
10.25 --Series D Preferred Stock Purchase Agreement between the
Company and the parties thereto, dated February 26, 1993
(Incorporated by reference to Exhibit 10.25 of
Registration Statement No. 33-98542).
10.26 --Form of Indemnification Agreement (Incorporated by
reference to Exhibit 10.26 of Registration Statement No.
33-98542).
10.27 --Lease Agreement between Halmos Trading and Investment
Company and the Company dated June 6, 1996.
*11.1 --Computation of per share earnings (losses).
*23.1 --Consent of Ernst & Young LLP.
*23.2 --Consent of Testa, Hurwitz & Thibeault (included in
Exhibit 5.1).
*24.1 --Power of Attorney.
*27 --Financial Data Schedule.
</TABLE>
- --------
* Previously Filed
<PAGE>
Exhibit 3.2
-----------
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CITRIX SYSTEMS, INC.
Citrix Systems, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation adopted resolutions
proposing and declaring advisable the following amendments to the
Amended and Restated Certificate of Incorporation of the Corporation:
RESOLVED: That the first paragraph of Article FOURTH of the
Corporation's Amended and Restated Certificate of
Incorporation as amended to date shall be amended to read
in its entirety as follows:
FOURTH. The total number of shares of all classes of capital
------
stock which the Corporation shall have authority to issue is
65,000,000 shares, consisting of 60,000,000 shares of Common Stock
with a par value of $.001 per share (the "Common Stock") and
5,000,000 shares of Preferred Stock with a par value of $.01 per
share (the "Preferred Stock").
SECOND: The foregoing amendment to the Amended and Restated Certificate of
Incorporation of the Corporation was duly adopted by vote of the
stockholders of the Corporation in accordance with the applicable
provisions of Section 242 of the General Corporation Law of the State
of Delaware.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK}
<PAGE>
CYPRESS CREEK
OFFICE BUILDING LEASE
HALMOS TRADING AND INVESTMENT COMPANY
LANDLORD
AND
CITRIX SYSTEMS, INC.
TENANT
<PAGE>
TABLE OF CONTENTS
SECTION SUBJECT PAGE
- ------- ------- ----
1. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DEMISE . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. LEASE TERM . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. BASE RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . 6
6. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . . . . . 12
7. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . 13
9. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . 14
10. COMMON AREAS . . . . . . . . . . . . . . . . . . . . . . . . 14
11. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . . . . . 15
12. SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13. TENANT'S INITIAL IMPROVEMENTS . . . . . . . . . . . . . . . . 19
14. NO REPRESENTATIONS BY LANDLORDS . . . . . . . . . . . . . . . 22
15. ACCEPTANCE OF PREMISES . . . . . . . . . . . . . . . . . . . 22
16. REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 24
18. CONSTRUCTION LIENS . . . . . . . . . . . . . . . . . . . . . 26
19. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 27
20. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 28
21. DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . 30
22. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . 31
23. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . 32
24. ESTOPPEL STATEMENT . . . . . . . . . . . . . . . . . . . . 32
25. NON-DISTURBANCE, SUBORDINATION, AND ATTORNMENT OF LEASE . . 33
26. (INTENTIONALLY DELETED) . . . . . . . . . . . . . . . . . . 34
27. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . 34
28. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . 39
29. INSOLVENCY, DEFAULT . . . . . . . . . . . . . . . . . . . . . 39
30. ADDITIONAL LANDLORD RIGHTS; LATE FEES . . . . . . . . . . . . 42
31. TENANT CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . 43
32. WAIVER OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 43
33. LIEN ON TENANT PROPERTY . . . . . . . . . . . . . . . . . . . 44
34. RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . . . . . 44
35. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
36. ATTORNEYS' AND ACCOUNTANTS' FEES . . . . . . . . . . . . . . 45
37. CONDITION OF PREMISES ON TERMINATION OF
LEASE AND HOLDING OVER . . . . . . . . . . . . . . . . . . . 45
38. OCCUPANCY AND PERSONAL PROPERTY TAX . . . . . . . . . . . . . 46
39. SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
40. WAIVER OF TRIAL BY JURY . . . . . . . . . . . . . . . . . . . 47
41. HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . 47
42. INVALIDITY OF PROVISION . . . . . . . . . . . . . . . . . . . 47
43. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 48
44. (INTENTIONALLY DELETED) . . . . . . . . . . . . . . . . . . . 49
i
<PAGE>
TABLE OF CONTENTS
SECTION SUBJECT PAGE
- ------- ------- ----
45. RADON GAS NOTICE ............................................ 50
46. (INTENTIONALLY DELETED) ..................................... 50
47. ENTIRE AGREEMENT ............................................ 50
48. BROKERAGE ................................................... 50
49. FORCE MAJEURE ............................................... 50
50. SHORT FORM LEASE ............................................ 51
51. RELATIONSHIP OF PARTIES ..................................... 51
52. DELIVERY OF LEASE INSTRUMENT ................................ 51
53. OPTION TO EXTEND ............................................ 51
54. DELIVERY OF PREMISES ........................................ 53
55. RIGHT OF FIRST REFUSAL ...................................... 54
LIST OF EXHIBITS
EXHIBIT "A" DINING ROOM (S 1.4)
EXHIBIT "B" DESCRIPTION OF REAL PROPERTY (S 1.8, 1.12)
EXHIBIT "C" LOCATION OF PREMISES (SS 1.10, 54.1)
ii
<PAGE>
CYPRESS CREEK OFFICE BUILDING LEASE
INDEX OF DEFINED TERMS
----------------------
TERM SECTION
---- -------
ADA ........................................... 5.1.1.2
Additional Rent ................................... 5.1
Alterations ...................................... 17.1
Base Rent ......................................... 1.1
Broker ............................................ 1.2
Building Standard Hours ........................ 12.1.2
Commencement Date ................................. 1.3
Common Areas ....................................... 10
Construction Plans ............................... 13.1
Cosmetic Alterations ............................. 17.1
Costs of Possession and Reletting .............. 29.3.1
Dining Room ....................................... 1.4
Extension Term ................................... 53.1
Expiration Date ................................... 1.5
Fair Market Rent ................................. 53.2
Final Plans ...................................... 13.2
First Expansion Commencement Date ................. 1.6
First Expansion Rent Commencement Date ............ 1.7
First Expansion Space ............................. 1.8
First Extension Expiration Date ................... 1.9
Force Majeure ..................................... .49
Initial Premises ................................. 1.10
Landlord ..................................... Preamble
Landlord's Consultant ............................ 13.2
Lease Term .......................................... 3
Lease Year ....................................... 1.11
Office Building .................................. 1.12
Operating Expenses .............................. 5.1.1
Permitted Use .................................... 1.13
Premises ......................................... 1.14
Rent Commencement Date ........................... 1.15
Second Expansion Commencement Date ............... 1.16
Second Expansion Rent
Commencement Date ................................ 1.17
Second Expansion Space ........................... 1.18
Second Extension Expiration Date ................. 1.19
Taxes ........................................... 5.1.2
Tenant ....................................... Preamble
Tenant Affiliate ................................. 27.1
Tenant Default ................................... 29.1
Tenant's Initial Improvements ...................... 13
Tenant's Property ................................ 17.4
Tenant's Proportionate Share ..................... 1.20
Toxic Waste Regulations ........................... 7.2
Transfer ......................................... 27.1
Transferee ....................................... 27.2
iii
<PAGE>
CYPRESS CREEK OFFICE BUILDING LEASE
-----------------------------------
THIS LEASE AGREEMENT (this "Lease") is entered into as of this 6th day
of June, 1996 between HALMOS TRADING AND INVESTMENT COMPANY, a Florida general
partnership ("Landlord"), whose address for the purpose of this Lease is 6400
N.W. 6th Way, Fort Lauderdale, Florida 33309-2114, and CITRIX SYSTEMS, INC.
("Tenant"), whose address is currently 210 University Drive, Suite 700, Coral
Springs, Florida 33071. After the "Commencement Date" (as hereinafter defined)
of this Lease, the Tenant's address for the purpose of this Lease shall be the
"Premises" (as hereinafter defined).
1. DEFINED TERMS The following terms, as used in this Lease, have the
-------------
following meanings.
1.1. "Base Rent":
a. From the Rent Commencement Date until the First Expansion
Rent Commencement Date, an annual rate of $401,301.25;
b. From and after the First Expansion Rent Commencement Date
until the Second Expansion Rent Commencement Date, an annual
rate of $525,971.25;
c. From and after the Second Expansion Rent Commencement Date
until the end of the 30th full calendar month of the Lease
Term, $606,978.75;
d. For the 31st through 60th full calendar months after the
Rent Commencement Date: an annual rate of $667,676.63
(69,369 square feet x $8.75 per square foot x 1.1)
e. For the first 30 full calendar months of the first
Extension Term (months 61 through 90): an amount which is
the greater of 85% of the Fair Market Rent as determined
pursuant to Section 53 or an annual rate of $667,676.63.
f. For the 91st through 120th full calendar months (the final
30 months of the first Extension Term), an amount which is
10% above the amount determined in subparagraph e., above,
Tenant: [Initials
appear here]
_____________
Landlord: [Initials
appear here]
_____________
Page 1
<PAGE>
g. For the first 30 full calendar months of the second
Extension Term (months 121 through 150): an annual rate
equal to 90% of the Fair Market Rent as determined
pursuant to Section 53, but in no event less than the annual
rate in effect under subparagraph f. above.
h. For the 151st through 180th full calendar months (the final
30 months of the second Extension Term): an annual rate
which is 10% above the amount determined in subparagraph
g., above.
i. For the 181st through 210th full calendar months (the first
30 months of the third Extension Term): an annual rate equal
to 90% of the Fair Market Rent as determined pursuant to
Section 53, but in no event less than the annual rate in
effect under subparagraph h. above.
j. For the 211th through 240th full calendar months (the final
30 months of the third Extension Term): an annual rate
which is 10% above the amount determined in subparagraph
i., above.
1.2 "Broker": Stiles Realty Co. and Syndicon Properties, Inc.
1.3 "Commencement Date": The day on which Landlord delivers the
Initial Premises to Tenant free of all tenants and occupants, in broom clean
condition and free of personal property not owned by Tenant, and otherwise in
such condition as exists as of the date of this Lease, whether or not Tenant
has completed Tenant's Initial Improvements (as hereinafter defined) and whether
or not the Premises is usable or habitable as of said day.
1.4 "Dining Room": The executive dining room/lounge on the third
floor of the Office Building, as shown on Exhibit A attached to this Lease.
1.5 "Expiration Date": The last day of the 60th full calendar month
after the Rent Commencement Date.
1.6 "First Expansion Commencement Date": The day on which Landlord
delivers the First Expansion Space to Tenant, free of all tenants and occupants,
in broom clean condition and free of
Tenant: [Initials
appear here]
------------
Landlord: [Initials
appear here]
------------
Page 2
<PAGE>
personal property not owned by Tenant and otherwise in such condition as exists
as of the date of this Lease.
1.7 "First Expansion Rent Commencement Date": On the First
Expansion Commencement Date.
1.8 "First Expansion Space": The north portion of the third floor
of the Office Building including the Dining Room (even though the Dining Room
may be added to the Premises by Tenant prior to the rest of the First Expansion
Space), as shown on Exhibit B attached to this Lease, which is conclusively
deemed to contain 14,248 rentable square feet.
1.9 "First Extension Expiration Date": The fifth anniversary of
the Expiration Date.
1.10 "Initial Premises": The first two floors in the Office
Building which two floors are conclusively deemed for purposes of this Lease
to consist of 45,863 rentable square feet, as shown on Exhibit "C" annexed here
to and made a part hereof.
1.11 "Lease Year": a twelve (12) calendar month period, the first
of which Lease Year commences on the Commencement Date; however, if the
Commencement Date does not fall on the first day of a calendar month then the
first Lease Year shall contain the remaining days in said month plus the
following twelve calendar months. Each subsequent Lease Year shall be twelve
full calendar months commencing with the first day of the calendar month
following the previous Lease Year.
1.12 "Office Building": The building presently known as Cypress
Creek Office Building, with a street address of 6400 N.W. 6th Way, Fort
Lauderdale, Florida 33309, which building is conclusively deemed for the
purposes of this Lease to consist of 69,369 rentable square feet and the real
property which underlays and is adjacent to the building, which real property
is more particularly described on Exhibit B attached to this Lease.
1.13 "Permitted Use": Executive, administrative, sales, engineering
and general offices; software development and testing; assembly of software and
related materials; packaging, shipping and receiving of software and related
materials, as ancillary to and in connection with the other Permitted Uses; and
training and educational conferences.
1.14 "Premises": (a) From Commencement Date until the First
Expansion Commencement Date, the Initial Premises, together with the Dining Room
if and when Tenant elects to lease the Dining Room and Landlord delivers
possession of the Dining Room in accordance with
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 3
<PAGE>
Section 54.2 of this Lease; (b) from and after the First Expansion Commencement
Date until the Second Expansion Commencement Date, the Initial Premises and the
First Expansion Space; and (c) from and after the Second Expansion Commencement
Date, the entire Office Building.
1.15. "Rent Commencement Date": 90 days after the Commencement
Date.
1.16 "Second Expansion Commencement Date": The day on which
Landlord delivers the Second Expansion Space to Tenant, free of all tenants and
occupants, in broom clean condition and free of personal property not owned by
Tenant and otherwise in such condition as exists as of the date of this Lease.
1.17 "Second Expansion Rent Commencement Date": the Second Expansion
Commencement Date.
1.18 "Second Expansion Space": The south portion of the third floor
of the Office Building (constituting the remainder of the third floor of the
Office Building after the First Expansion Space), which is conclusively deemed
to contain 9,258 rentable square feet.
1.19 "Second Extension Expiration Date": The tenth anniversary of
the Expiration Date.
1.20. "Tenant's Proportionate Share": (a) 66% from the Rent
Commencement Date until the First Expansion Rent Commencement Date (but Tenant's
Proportionate Share shall be increased to 68% if and when Tenant elects to lease
the Dining Room and Landlord delivers possession of the Dining Room before the
First Expansion Rent Commencement Date in accordance with Section 54.2 of this
Lease); (b) 86.65% from and after the First Commencement Date; and (c) 100% from
and after the Second Expansion Rent Commencement Date.
2. DEMISE: Subject to and upon the terms and conditions of this Lease,
------
Landlord leases to Tenant, and Tenant leases from Landlord the Premises.
Landlord shall deliver the Premises to Tenant in accordance with Section 54 of
this Lease. Tenant shall have the right to use (in common with others entitled
thereto before the Second Expansion Commencement Date and thereafter
exclusively) the parking areas, driveways, walkways, entrances, lobbies,
hallways, stairways, elevators, rest rooms, pipes, conduits and wires, and the
heating, ventilating, air conditioning, electrical, plumbing, emergency and
other equipment and systems, located on or used in connection with, the Office
Building.
3. LEASE TERM. This Lease shall be for a term (the "Lease Term") which
----------
commences on the Commencement Date, and ends on the
Tenant: [Initials
appear here]
_____________
[Initials
appear here]
Landlord: _____________
Page 4
<PAGE>
Expiration Date, unless sooner terminated or extended as provided in this Lease.
4. BASE RENT:
---------
4.1 Commencing as of the Rent Commencement Date, and continuing
throughout the Lease Term, Tenant shall pay Landlord an annual Base Rent as
specified in Subsection 1.1 payable without demand in advance of the first day
of each calendar month in monthly installments equal to one-twelfth of the then
current annual Base Rent due under Section 4.2 of this Lease, plus tax, without
any offset or deduction whatsoever (except otherwise expressly provided in this
Lease), in lawful money (legal tender for public or private debts) of the United
States of America, at Landlord's headquarters address as follows: McGrath &
Meyers, 5725 Corporate Way, Suite 101, West Palm Beach, Florida 33407 Attn: Gail
Meyers; or elsewhere as designated from time to time by Landlord's written
notice in Tenant. If the Lease Term includes a partial calendar month at its end
or in the month in which the Rent Commencement Date occurs, the monthly
installment of Base Rent due with respect to such calendar month shall be
prorated according to the number of days of such calendar month within the Lease
Term, and such prorated payment shall be payable on the first day of such
calendar month within the Lease Term. If the First Expansion Rent Commencement
Date or the Second Expansion Rent Commencement Date occurs on a day other than
the first day of a calendar month, the monthly installment of Base Rent for such
calendar month shall be the sum of (i) the monthly installment of Base Rent at
the rate of Base Rent in effect before the First Expansion Rent Commencement
Date or the Second Expansion Rent Commencement Date, as the case may be,
prorated according the number of days in such calendar month before the First
Expansion Rent Commencement Date or the Second Expansion Rent Commencement Date,
as the case may be, and (ii) the monthly installment of Base Rent at the rate of
Base Rent in effect after the First Expansion Rent Commencement Date or the
Second Expansion Rent Commencement Date, as the case may be, prorated according
the number of days in such calendar month on and after the First Expansion Rent
Commencement Date or the Second Expansion Rent Commencement Date, as the case
may be. Upon Tenant's execution of this Lease, Tenant shall pay to Landlord the
amount of Base Rent due for the first full calendar month of the Lease Term.
4.2 Tenant shall pay to Landlord the amount of any sales or similar
tax imposed by the State of Florida or any subdivision thereof on the rents and
other charges payable by Tenant under this Lease. Such payments on account of
sales or similar taxes shall be paid together with the corresponding amounts due
under this Lease, and the obligation to pay same shall survive the expiration or
earlier termination of this Lease.
Tenant: [Initials
appear here]
_____________
Landlord: [Initials
appear here]
-------------
Page 5
<PAGE>
5. ADDITIONAL RENT:
---------------
5.1 In addition to the Base Rent, Tenant shall pay to Landlord
all rents, sums and charges other than Base Rent due from Tenant to Landlord
under this Lease ("Additional Rent"), at the times and in the manner set
forth in this Lease. Additional Rent includes, but is not limited to, Tenant's
Proportionate Share of all "Operating Expenses" (as hereinafter defined)
described or anticipated in this Section, including "Taxes" (as defined in
Subsection 5.1.2), which occur in each calendar year during the Lease Term,
payable according to Section 5.3
5.1.1. "Operating Expenses" means all reasonable, actual,
out-of-pocket expenses, costs and disbursements, of every kind and nature,
including Taxes, which Landlord may pay or become obligated to pay during any
calendar year because of or in connection with the ownership, management,
maintenance and/or operation of the Office Building (including ""Common Areas",
as hereinafter defined), and the personal property of Landlord used in the
operation of the Office Building, as determined in accordance with generally
accepted accounting principles, which are properly chargeable to the operation
of the Office Building.
5.1.1.1. By the way of explanation and
clarification, but not by way of limitation, Operating Expenses shall include
the following:
(a) wages and salaries of all employees
to the extent engaged in the operation, management, maintenance, and security of
the Office Building, employer's social security taxes, unemployment taxes or
insurance, and any other taxes which may be levied on such wages and salaries,
the cost of disability and hospitalization insurance, pension or retirement
benefits, and any other fringe benefits for such employees;
(b) cost of all supplies, tools,
materials and equipment, whether leased or owned, used in the operation,
management and maintenance of the Office Building;
(c) cost and fees of all utilities,
including water, sewer, electricity, gas and fuel oil used by the Office
Building and not collected directly from a tenant;
(d) reasonable cost and fees of the
Office Building management (which shall not exceed four percent of gross rent
from leases of the Office Building);
(e) janitorial services and trash and
garbage removal;
Tenant: [Initials
appear here]
_____________
Landlord: [Initials
appear here]
-------------
Page 6
<PAGE>
(f) service, maintenance and replacement of all
systems and equipment including, but not limited to, elevators, plumbing,
heating, air conditioning, ventilating, lighting, electrical, security and fire
alarms, fire pumps, fire extinguishers and hose cabinets, mail chutes, and those
related to guard service, painting, window cleaning, landscaping and gardening;
(g) reasonable legal, accoujnting and other
professional fees and expenses;
(h) cost and expense of providing and maintaining
security personnel and services;
(i) cost of supplying and cleaning employees'
uniforms and work clothes;
(j) reasonable administrative costs, such as (but
not limited to) postage, stationery, photocopy expenses and other management
office supplies;
(k) cost of providing pest control for the Office
Building;
(l) cost of casualty, liability and other
insurance;
(m) any and all occupancy, gross receipts or
rental taxes paid by Landlord in connection with the Office Building, but not
income or any other tax imposed or measured by Landlord's income or profits
(unless such tax is in lieu of real estate taxes or sales taxes);
(n) any and all Taxes and costs on or related to
the Office Building and any appurtenances, tenements and hereditaments charged
to the Office Building by a taxing authority (if the amount of Operating
Expenses attributable to the Office Building cannot be separately ascertained,
the amount of such Operating Expenses shall be determined on an equitable basis
and verified by Landlord's accountant whose determination shall be reviewed, and
adjusted if appropriate, by Landlord, annually); and
(o) cost of capital expenditures (other than to
the roof, foundation and exterior windows) including, without limitation, those
that reduce Operating Expenses or are required by laws enacted or promulgated
after the date of this Lease, but all such capital expenditures shall be
amortized over the useful life of the capital item, as determined in accordance
with gererally accepted accounting principles, and only the annual amortized
portion of such capital expenditure shall be included in Operating Expenses for
Tenant: [Initials
appear here]
-------------
Landlord: [Initials
appear here]
-------------
Page 7
<PAGE>
any calendar year. Notwithstanding the foregoing, it shall be excluded from
Operating Expenses, the cost of compliance with laws existing prior to the date
of this Lease (except the Tenant shall be responsible directly, and not as
Operating Expenses, for expenses relating to compliance with such laws to the
extent required in connection with its use or occupancy of the Premises or its
Alterations or other tenant improvements).
5.1.1.2. Notwithstanding any other provision of the
Lease, Operating Expenses will be deemed to specifically exclude the following:
(i) the cost to Landlord of repairs made, or
other work done, by Landlord as a result of fire, windstorm or other insurable
casualty or by the exercise of eminent domain;
(ii) amounts for which reimbursement has been
made to Landlord by any tenant for "extra hours" services rendered to it by
Landlord;
(iii) damages, attorneys' fees, fines, penalties
or other costs incurred by Landlord due to its violation of any lease, contract,
law or governmental rule or authority;
(iv) salaries, wages and benefits of Landlord's
executive personnel or officers or partners of Landlord;
(v) depreciation expense on the Office
Building;
(vi) cost of capital expenditures made by
Landlord other than those permitted in subsection 5.1.1(q);
(vii) all costs for which Tenant is being
charged other than pursuant to the operating expense clauses;
(viii) the cost of any repair made by Landlord
because of the total or partial destruction of the Office Building or the
condemnation of a portion of the Office Building;
(ix) the cost of any items for which Landlord
is reimbursed by insurance or otherwise compensated by parties other than
Tenant;
(x) any operating expense representing an
amount paid to a related corporation, entity or person
Tenant: [Initials
appear here]
-------------
Landlord: [Initials
appear here]
-------------
Page 8
<PAGE>
which is in excess of the amount which would be paid in the absence of such
relationship;
(xi) environmental compliance, testing and the
cost of removal, abatement, remediation or treatment of asbestos or any other
hazardous substances or gas unless related to Tenant's acts or hazardous
substances placed on, above or under the real property after the Commencement
Date;
(xii) principal, interest and other charges
related to indebtedness secured by a mortgage or other security interest
covering any portion of the Office Building;
(xiii) leasehold improvements which are made in
connection with the preparation of any portion of the Office Building for
occupancy by a new tenant or which are not provided generally for the benefit of
all tenants of the Office Building;
(xiv) any expansion of the rentable area of the
Office Building;
(xv) efforts to lease portions of the Office
Building or to procure new tenants for the Office Building, including
advertising fees, leasing commissions and attorneys' fees;
(xvi) negotiations or disputes with any tenant
of the Office Building;
(xvii) Landlord's general overhead not directly
related to the management or operation of the Office Building;
(xviii) vacant space;
(xix) compliance by Landlord with laws existing
as of date of this Lease, including, without limitation, the Americans with
Disabilities Act of 1990 ("ADA") and the existing regulations and standards
thereunder, provided that Tenant shall be responsible for compliance with
existing laws (including, without limitation, the ADA and the existing
regulations and standards thereunder) in connection with its use and occupancy
of the Premises, its Alterations and other tenant improvements, and Tenant shall
specifically be responsible for sprinklering if required;
(xx) repairs necessary to cure defects in the
initial construction of the roof, foundation, exterior walls or other structural
components of the Office Building; and
Tenant: [Initials
appear here]
-------------
Landlord: [Initials
appear here]
-------------
Page 9
<PAGE>
(xxi) any repairs and replacements necessary for
Landlord to comply fully with its warranty set forth in the first sentence of
Section 16.1 of this Lease.
5.1.2. "Taxes" means all amounts of impositions, taxes,
assessments (special or otherwise), water and sewer charges and rents, impact
fees and other governmental liens and charges of any and every kind, and
substitutes therefor, and each and every installment thereof including any
charges or interest on such amounts which may be or are paid in installments,
nad all costs incurred by Landlord in contesting or negotiating such amounts
with any governmental or regulatory authority attributable in any manner to the
Office Builing or the rents receivable from all or any part of the Office
Building, or any use of it, or any facility or personal property located in or
on it or any charge or other payment required to be paid to any governmental
authority, however designated in connection with Landlord's ownership or
operation of the Office Building. Nothing in this Section 5 shall be construed
to include as a tax which shall be the basis of Taxes any inheritance, estate,
succession, transfer, franchise, excise or gift taxes imposed upon Landlord or
any income taxes specifically payable by Landlord as a separate tax-paying
entity without regard to Landlord's income source (irrespective of whether
differing tax rates are applicable to different types of income) as arising from
or out of the Office Building or any tax payable by Tenant pursuant to any other
provisions of this Lease. If any Taxes may be paid in installments, Landlord
shall pay such Taxes over the maximum period permitted by law and Operating
Expenses for any calendar year shall include only the installments of such Taxes
required to be paid in such year. The annual ad valorem real estate taxes with
repsect to the Office Building will be paid in time to obtain the 4% maximum
discount permitted under law.
5.2 Landlord agrees to maintain accounting books and records
reflecting the Operating Expenses in accordance with generally accepted
accounting principles. Tenant and its representatives shall have the right,
upon reasonable advance notice, to examine Landlord's books and records with
respect to Operating Expenses during normal business hours at Landlord's
offices. If it is determined that Landlord overcharged Tenant by more than five
percent, Landlord shall reimburse Tenant for the reasonable, out-of-pocket
expenses of Tenant's examination, and Landlord shall promptly refund any
overcharge to Tenant.
5.3 Commencing with the Rent Commencement Date, Tenant shall, on
the first day of each month in advance pay to Landlord equal monthly
installments on account of the amount reasonably projected by Landlord for
Tenant's Proportionate Share of Operating Expenses for the then current calendar
year, based upon the most recent data available to Landlord, from time to time,
for Operating Expenses. Within 180
Tenant: [Initials
appear here]
-------------
Landlord: [Initials
appear here]
-------------
Page 10
<PAGE>
days after the end of each calendar year during the Lease Term, Landlord
shall submit to Tenant a statement showing the actual amount which should
have been paid by Tenant with respect to Operating Expenses for the past
calendar year, the amount of those expenses actually paid during that year
by Tenant and the amount of the resulting balance due on those expenses, or
overpayment of them, as the case may be. Said statement shall become final
and conclusive between the parties, their successors and assigns as to the
matters set forth in it unless Tenant, within sixty (60) days of receipt by
Tenant of such statement, sends a written notice to Landlord objecting to such
statement and specifying the respects in which such statement is claimed to be
incorrect. Any balance shown to be due pursuant to said statement shall be paid
by Tenant to Landlord within thirty (30) days following Tenant's receipt of the
statement and any overpayment shall be immediately credited against Tenant's
obligation to pay expected Additional Rent in connection with anticipated
Operating Expenses or, if by reason of any termination of this Lease no such
future obligation exists, shall be refunded to Tenant at the time of the
delivery of such statement to Tenant. Anything in this Lease to the contrary
notwithstanding, Tenant shall not delay or withhold payment of any balance shown
to be due pursuant to a statement rendered by Landlord to Tenant, pursuant to
the terms of this Lease, because of any objection which Tenant may raise with
respect to the statement. If at the time of the resolution of said objection
the Lease Term has expired, Landlord shall immediately refund to Tenant any
overpayment found to be owing to Tenant.
5.4. Additional Rent for the final months of this Lease is due and
payable even though it may not be calculated until subsequent to the Expiration
Date or earlier termination of this Lease. Operating Expenses for the calender
years during which this Lease commences and terminates shall be prorated on a
daily basis according to that portion of said calendar year that this Lease
shall have actually been in effect. If the Rent Commencement Date occurs on a
day other than the first day of a calendar month, or if the Lease Term ends on a
day other than the last day of a calendar month, the monthly installment of
Tenant's Proportionate Share of Operating Expenses payable by Tenant for such
partial calendar month shall be prorated according to the number of days in such
calendar month within the Lease Term. If the First Expansion Rent Commencement
Date or the Second Expansion Rent Commencement Date occurs on a day other than
the first day of a calendar month, the monthly installment of Tenant's
Proportionate Share of Operating Expenses payable by Tenant for such calendar
month shall be the sum of (i) the monthly installment of Tenant's Proportionate
Share of Operating Expenses, based on Tenant's Proportionate Share in effect
before the First Expansion Rent Commencement Date or the Second Expansion Rent
Commencement Date, as the case may be, prorated according the number of days in
such calendar month before the First Expansion Rent Commencement Date or the
Second
Tenant: [Initials
appear here]
-------------
[Initials
appear here]
Landlord: -------------
Page 11
<PAGE>
Expansion Rent Commencement Date, as the case may be, and (ii) the monthly
installment of Tenant's Proportionate Share of Operating Expenses, based on
Tenant's Proportionate Share in effect after the First Expansion Rent
Commencement Date or the Second Expansion Rent Commencement Date, as the case
may be, prorated according the number of days in such calendar month on and
after the First Expansion Rent Commencement Date or the Second Expansion Rent
Commencement Date, as the case may be.
5.5. Failure of Landlord to furnish in a timely manner the annual
statement of actual Operating Expenses or to give notice of an adjustment to
rent under this Section 5 shall not prejudice or act as a waiver of Landlord's
right to furnish such statement or to give such notice at a subsequent time or
to collect any balance of the Additional Rent for any preceding period, unless
such failure continues for 60 days after written notice from Tenant to Landlord.
5.6. Tenant recognizes that Landlord's statements showing the
estimate of Operating Expenses for any calendar year may be rendered at the end
of the previous calendar year or the beginning of such calendar year. If
Landlord's statement is rendered subsequent to the beginning of a calendar year,
Tenant shall continue to pay monthly installments of Tenant's Proportionate
Share of Operating Expenses at the rate in effect for the prior calendar year
and, should a deficiency in such monthly installments result by virtue of an
Landlord's estimate of the Operating Expenses for the current year, Tenant shall
pay the amount of such deficiency, if any, in full, in addition to the next
monthly rent payment. Landlord shall have the right to adjust the estimate of
Operating Expenses set forth in a prior Landlord's statement for any Lease Year
based on more recent or accurate data and bill Tenant for any deficiency in
Tenant's monthly installments of Tenant's Proportionate Share of Operating
Expenses for the then current calendar year made as of the issuance of the
adjusted estimate. Any such deficiency payment shall be due within fifteen (15)
days of Tenant's receipt of such bill.
6. INTENTIONALLY DELETED:
---------------------
7. USE:
---
7.1. Tenant shall use and occupy the Premises for the Permitted Use
and for no other use or purpose. The Premises shall not be used for retail
sales or for any illegal purposes or in violation of any regulation or any
governmental body, or in any manner which creates any nuisance or trespass, or
vitiates any insurance. Landlord represents and warrants to Tenant that the use
of the Premises for the Permitted Uses shall not vitiate any insurance.
Tenant: [Initials
appear here]
-------------
[Initials
appear here]
Landlord: -------------
Page 12
<PAGE>
7.2. Tenant shall not permit the presence, handling, use, storage
or transportation of hazardous, toxic or otherwise dangerous materials in or
about the Premises or the Office Building, except (a) as an incidental,
customary office use such as the use of photocopier ink and (b) in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines,
related to all toxic, dangerous and hazardous materials, of all governmental and
regulatory authorities having jurisdiction, and of the Board of Insurance
Underwriters ("Toxic Waste Regulations"). In no event shall Tenant manufacture
or dispose of hazardous or toxic materials in or about the Premises, the Office
Building; Tenant shall cause them to be disposed of only by means of a duly
licensed hazardous waste disposal service and in accordance with Toxic Waste
Regulations. Tenant shall provide Landlord with copies of all pertinent
documentation establishing disposal in accordance with the foregoing including,
without limitation, manifests and receipts for materials. Tenant shall obtain
and maintain throughout the Lease Term and any extensions or renewals thereof
all licenses and permits required in connection with Tenant's activities which
may involve hazardous or toxic materials. Tenant shall allow access to the
Premises by Landlord, the Broward County Department of Environmental Resources
Management, and other applicable regulatory authorities so that such parties may
assure compliance with the requirements of this Subsection 7.2. Tenant
acknowledges that it is aware of the penalties for improper disposal of
hazardous waste as set forth in Section 403.727, Florida Statutes; Tenant
warrants and represents to and covenants with Landlord that Tenant shall comply
with all requirements of Toxic Waste Regulations including, without limitation,
the applicable requirements of Chapter 403, Florida Statutes. Tenant represents
and warrants that Tenant shall at all times during the Lease Term or any
extension or renewal thereof be in compliance with Toxic Waste Regulations, and
shall indemnify, defend and hold Landlord and Landlord's mortgagees harmless
from and against any and all claims, liabilities, injuries, damages, costs and
expenses (including attorneys' fees) arising from, growing out of or related to
any breach of the covenants, representations or warranties of this
Subsection 7.2. The provisions of this Subsection 7.2 shall survive the
termination of this Lease.
8. COMPLIANCE WITH LAWS: Tenant shall comply with all laws and
--------------------
governmental and applicable insurance underwriters' rules, regulations, decrees
or requirements applicable to and shall obtain all permits relating to, Tenant's
use and occupancy of the Premises, including, without limitation, any
sprinklering required (if any) and compliance with the ADA. Landlord shall
comply with all laws and governmental and insurance underwriter's rules,
regulations, decrees, or requirements applicable to the Office Building (other
than those applicable to Tenant's use and occupancy of the Office Building, or
to Tenant's Alterations or Tenant's other tenant improvements). Expenses
relating to compliance by Landlord with any law, rules, regulations,
Tenant: [Initials appear here]
------------------------
[Initials appear here]
Landlord: ------------------------
Page 13
<PAGE>
codes or ordinances (including, without limitation, modifications to the ADA and
its rules and regulations) enacted or promulgated after the date of this Lease
shall be passed through to Tenant as an Operating Expense, to the extent set
forth in Section 5.1.1 of this Lease. If, as a result of any change in
governmental laws, ordinances and regulations, the Premises must be altered
lawfully to accommodate Tenant's use and occupancy, such alterations shall be
made only in accordance with Section 17 of this Lease, but the entire cost of
such alterations shall be borne by Tenant; the necessity of Landlord's consent
shall in no way create any liability against Landlord for failure of Tenant to
comply, or to alter the Premises to comply, with such laws, ordinances and
regulations. If Tenant receives notice of any claim of violation of any law,
rule or regulation applicable to the Premises, Tenant shall give prompt notice
of such notice to Landlord. Tenant shall not do or permit anything to be done
in or about the Premises which will obstruct or interfere with the rights of
other tenants in the Office Building. Tenant shall not overload the floors, nor
shall Tenant install any safes or heavy equipment of any kind without Landlord's
prior written consent which shall not be unreasonably withheld or delayed but,
if granted, may be conditioned upon moving by skilled licensed handlers and
installation and maintenance at Tenant's expense of special reinforcings and
settings adequate to absorb and prevent noise and vibration. Tenant will be
responsible for any upgrades to the Building or Common Areas required to comply
with current laws including, without limitation, building codes and ADA that are
required in connection with Tenant's Initial Improvements or Tenant's particular
use and occupancy of the Premises.
9. QUIET ENJOYMENT: Upon payment by Tenant of the rents provided
---------------
in this Lease, and upon the observance and performance by Tenant of all terms,
provisions, covenants and conditions on Tenant's part to be observed and
performed by it, Tenant shall peaceably and quietly hold and enjoy the Premises
for the Lease Term, subject to all of the terms, provisions, covenants and
conditions of this Lease. Landlord agrees to make reasonable efforts to protect
Tenant from interference or disturbance by other tenants or mortgagee or ground
lessors or other parties claiming by, through or under Landlord.
10. COMMON AREAS:
------------
10.1 "Common Areas" means all common areas and other
facilities of the Office Building furnished by Landlord, including (if any) all
public lobbies, parking areas, truck way or ways, loading areas and loading dock
facilities, pedestrian walkways and ramps, landscaped areas, stairways,
corridors, directory signs and equipment, mechanical rooms, utility lines and
the like up to the electrical distribution panel serving the occupant
exclusively and any of the foregoing areas or facilities which serve the Common
Areas; washrooms, drinking fountains, toilets and other public facilities;
exterior
Tenant: [Initials
appear here]
_____________
[Initials
appear here]
Landlord: _____________
Page 14
<PAGE>
portions of the Premises, and of all premises leased to or held for lease to
tenants; those portions of the Premises and of all other premises leased or held
for lease used for the installation of utility lines and other installations
required to service tenants or occupants of the Office Building and to maintain
and repair them; areas used for building stairs, fire towers, elevator shafts,
flues, vents, pipes, stacks, pipe shafts, and ducts; areas of the Office
Building with respect to which easements have been granted in favor of the
Office Building or the Premises under any easement agreements or which otherwise
benefit the Premises or the Office Building; and other areas and improvements,
provided by Landlord for the general use, in common, of tenants, their officers,
agents, employees, servants, invitees, licensees, visitors, patrons and
customers. Landlord shall have the right to enter upon the Common Areas for the
purpose of inspecting same or performing maintenance and repairs required under
this Lease or necessary to keep the Office Building in good condition and
working order and, in connection with such maintenance and repairs, to
temporarily close portions of the Common Areas; to police the Common Areas; to
close or relocate all or any portion of the Common Areas or facilities to such
extent as may in the opinion of Landlord's counsel be legally necessary to
prevent a dedication of such areas or facilities or the accrual of any rights to
any person or the public in such areas or facilities; provided, however,
Landlord shall use reasonable efforts to avoid interference with Tenant's use
and occupancy of the Office Building. Landlord shall not be liable to Tenant
for any expense, injury, loss or damage resulting from work done in or upon, or
the use of, any adjacent or nearby facility, building, land, street, alley or
other area; provided, however, Landlord shall use reasonable efforts to avoid
interference with Tenant's use of the Office Building, and Landlord shall remain
liable for the negligence and willful misconduct of Landlord and its agents,
employees and contractors.
10.2 Landlord and Tenant each respectively covenant and agree
that in connection with its use of the Common Areas it will use reasonable
efforts to proceed expeditiously with any work which it does, so as to minimize
any disturbance to the Common Areas or to the ordinary and usual conduct of
business in the Office Building.
11. INTENTIONALLY DELETED
---------------------
12. SERVICES:
--------
12.1 Landlord will furnish the following services to Tenant:
12.1.1. automatically operated passenger elevator
service, public stairs, electrical current for normal office use, and hot and
cold water at those points of supply provided for
Tenant: [Initials
appear here]
_____________
[Initials
appear here]
Landlord: _____________
Page 15
<PAGE>
general use of its tenants at all times and on all days throughout the year; and
12.1.2. heat and air conditioning reasonably sufficient to
cool the Premises during Monday through Friday from 7:00 A.M. to 10:00 P.M.,and
on Saturdays from 9:00 A.M. to 2:00 P.M., except New Year's Day, Memorial Day,
Fourth of July, Labor Day, Thanksgiving Day, Christmas Day and federal and
Florida state holidays of general application ("Building Standard Hours").
Tenant hereby acknowledges that it has reviewed, accepted and approved the HVAC
specifications and accepts the HVAC system in its "as is" condition.
12.2 In the event separate meters are installed for Tenant's use of
any utilities on the Premises, Landlord shall have no responsibility to provide
such utility service, but Tenant shall have the right to obtain such utilities
directly from the appropriate utility company through the pipes, conduits and
wires on the Office Building, and Tenant shall pay the full cost of such utility
service directly to the appropriate utility.
12.3 No electric current shall be used except that furnished or
approved by Landlord, nor shall electric cable or wire be brought into the
Premises, except upon the written consent and approval of Landlord, which
approval and consent shall not be unreasonably withheld or delayed. Tenant
shall use only office machines and equipment which operate on the Office
Building's standard electric circuits, but which in no event shall overload the
Office Building's standard electric circuits from which Tenant obtains electric
current. Any consumption of electric current requiring special circuits or
equipment, such as automatic data processing equipment or supplemental air
conditioning units (the installation of which shall be at Tenant's expense after
approval in writing by Landlord, which approval shall not be unreasonably
withheld, delayed or conditioned), shall be paid to Landlord by Tenant as
Additional Rent in an amount to be determined by Landlord based upon Landlord's
reasonably estimated cost of such excess electric current consumption or based
upon the actual cost if such excess electric current consumption is separately
metered. Tenant shall pay its equitable, proportionate share of the cost of
equipment which may be installed from time to time to service or provide such
excess electricity for Tenant and, if appropriate, one or more other tenants.
12.4 Furthermore, Landlord reserves the right to stop the service
of the air-cooling, elevator, electrical, plumbing or other mechanical systems
or facilities in the Office Building when necessary, by reason of accident or
emergency, or for repairs, additions, alterations, replacements, decorations or
improvements requested by Tenant or required under this Lease or by law, or
necessary to be made in the judgment of Landlord, until said repairs,
alterations,
Tenant: [Initials
appear here]
_____________
[Initials
appear here]
Landlord: _____________
Page 16
<PAGE>
replacements or improvements shall have been completed; provided, however,
Landlord shall use reasonable efforts to avoid material interference with
Tenant's use and occupancy of the Office Building. Landlord shall have no
responsibility or liability for interruption, curtailment or failure to supply
cooled or outside air, heat, elevator, plumbing or electricity when prevented by
Force Majeure or by any cause whatsoever reasonably beyond Landlord's control,
or by laws, orders, rules or regulations of any federal, state, county or
municipal authority; provided, however, Landlord shall use reasonable efforts to
eliminate the cause of such interruption, curtailment or failure. The exercise
of such right or such failure by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or entitle. Tenant to any
compensation or to any abatement or diminution of Base Rent or Additional Rent,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise;
provided, however, (i) Landlord shall use reasonable efforts to avoid material
interference with Tenant's and occupancy of the Office Building and to eliminate
the cause of such interruption, curtailment or failure; and (ii) any such
stoppage, interruption, curtailment or failure does not arise out of the
negligence or willful misconduct of Landlord or its agents, employees or
contractors and persist for more than two business days.
12.5 If any governmental authority shall order mandatory energy
conservation or if Landlord elects (with Tenant's consent which will not be
unreasonably withheld or delayed) voluntarily to cooperate in energy
conservation at the request of any governmental authority including, but not
limited to, a reduction in operating hours or lighting usage, then Tenant shall
comply with such requirements. Tenant's compliance with such requirements shall
not entitle Tenant to any abatement of rent or damages for any injury or
inconvenience occasioned thereby nor shall it be construed as an eviction or
disturbance of possession.
12.6 Services described in Subsection 12.1 for times or days other
than as prescribed in said subsection will be made available by Landlord for the
benefit of Tenant provided Tenant has given Landlord written notice at least
twenty-four (24) hours in advance. Tenant shall pay on demand as Additional
Rent Landlord's then-standard charge for such additional service(s).
12.7 Tenant, as its expense, shall obtain cleaning and janitorial
services for the interior portions of the Office Building. If Tenant does not
arrange directly for the removal of refuse and rubbish from the Premises, Tenant
shall pay to Landlord, as a component of Operating Expenses, the cost of removal
of any of Tenant's refuse and rubbish from the Premises.
Tenant: [Initials appear here]
------------------------
[Initials appear here]
Landlord: ------------------------
Page 17
<PAGE>
12.8. Anything in this Section 12 to the contrary notwithstanding,
Landlord shall not be responsible if the normal operation of the Office Building
air-cooling system shall fail to provide cooled air at reasonable temperatures,
pressures or degrees of humidity or any reasonable volumes or velocities in any
parts of the Premises or the Office Building by reason of (a) unusual human
occupancy factors, (b) any machinery or equipment which produces unusual excess
heat and/or (c) any rearrangement of partitioning or other improvements in the
Premises. In the event Tenant requires additional air conditioning equipment,
whether units, chillers, condensers, compressors, ducts, piping or other
equipment, such additional air conditioning equipment will be installed and
maintained by Landlord at Tenant's sole cost and expense, but only if, in
Landlord's reasonable judgment, the same will not cause damage or injury to the
Office Building or create a dangerous or hazardous condition or entail excessive
or unreasonable alterations, repairs or expense or interfere with or disturb
other tenants. Tenant shall reimburse Landlord, as Additional Rent, in such an
amount as will compensate Landlord for the cost incurred by Landlord in
operating such additional air conditioning equipment, including, but not limited
to, electricity.
12.9. Landlord, through the Lease Term, upon reasonable advance
notice except in an emergency, shall have free access to any and all mechanical
installations of Tenant or of Landlord in the Premises, including but not
limited to air-cooling, fan, ventilating, machine rooms, electrical closets, the
phone for others in the Office Building) and any areas necessary for
maintenance, repair and alterations to the security system, UPS equipment
(standby generator) and any other facilities located in the Premises and serving
other parts of or occupants in the Office Building, but Landlord shall use
reasonable efforts to avoid material interference with Tenant's use of the
Office Building.
12.10. If a sprinkler system is installed in the Office Building
(without any obligation whatsoever by Landlord to install same) and the
sprinkler system or any of its appliances shall be damaged or injured or not be
in proper working order by reason of any act or negligence of Tenant, Tenant's
agents, servants, employees, licensees or visitors, Landlord may, after notice
to Tenant and the expiration of 10 business days (unless an emergency in which
case no notice will be required) without Tenant repairing such damage or injury
(or such shorter time period if required by law) or if same cannot be repaired
in ten business days, such longer time provided Tenant has commenced such repair
within ten business days and is continuing such repair without interruption,
Landlord may restore the same to good working condition at Tenant's sole cost
and expense.
Tenant: [Initials appear here]
------------------------
[Initials appear here]
Landlord: ------------------------
Page 18
<PAGE>
12.11 Landlord shall provide normal landscaping and window cleaning
similar to comparable first class buildings in Fort Lauderdale, Florida.
12.12. Subject to Force Majeure, Tenant shall have access to the
Premises and parking facilities 24 hours a day, 7 days a week, 52 weeks per
year.
12.13. Tenant has inspected and approved the electronic security
system in the Office Building and understands and acknowledges that Landlord has
no obligation to upgrade same. Tenant understands that the above security
relates only to the entrance to the Office Building and not to the Premises, and
Tenant is responsible for the security with respect to the Premises.
12.14 Tenant understands and acknowledges that Landlord makes no
representation or warranty regarding the condition of the UPS equipment and that
Landlord shall have no obligation whatsoever to maintain or repair same during
the Lease Term; however, if Landlord elects to maintain or repair such
equipment, the cost of the maintenance and repair shall be included in Operating
Expenses.
13. TENANT'S INITIAL IMPROVEMENTS.
------------------------------
13.1. Tenant shall complete or cause the completion of the initial
buildout of the Premises as shown on the Final Plans (as defined in
Subsection 13.2) and as more fully described in this Section ("Tenant's
Initial Improvements"). At Tenant's sole cost and expense, Tenant shall
submit to Landlord its complete and detailed architectural, structural,
mechanical and engineering plans and specifications prepared by an architect or
engineer licensed in the State of Florida and reasonably approved by Landlord,
which plans and specifications shall be stamped and certified by such architect
or engineer, showing Tenant's Initial Improvements ("Construction Plans") for
Landlord's approval. Landlord shall not unreasonably withhold, delay or
condition its approval of the Construction Plans. If applicable, Tenant's
Construction Plans shall include all information necessary to reflect Tenant's
requirements for the installation of any supplemental air conditioning system
and ductwork, heating, electrical, plumbing and other mechanical systems and all
work necessary to connect any special or non-standard facilities to the Office
Building's base mechanical, electrical and structural systems. Tenant's
submission shall include not less than one (1) set of sepia and five (5) sets of
black and white prints. Tenant's Construction Plans shall include, but not be
limited to, indication or identification of the following:
13.1.1. locations and structural design of all floor area
requiring live load capacities in excess of 75 pounds per square foot;
Tenant: [Initials appear here]
------------------------
[Initials appear here]
Landlord: ------------------------
Page 19
<PAGE>
13.1.2. the density of occupancy in large work areas;
13.1.3. the location of any food service areas or vending
equipment rooms;
13.1.4. areas requiring 24-hour air conditioning;
13.1.5. any partitions that are to extend from floor to
underside of structural slab above;
13.1.6. location of rooms for telephone equipment;
13.1.7. locations and types of plumbing, if any, required
for toilets (other than core facilities), sinks, drinking fountains, etc.;
13.1.8. light switching of offices, conference rooms,
etc.;
13.1.9. layouts for specially installed equipment,
including computers, size and capacity of mechanical and electrical services
required and heat projection of equipment;
13.1.10. dimensioned location of: (a) electrical
receptacles (120 volts), including receptacles for wall clocks, and telephone
outlets and their respective locations (wall or floor), (b) electrical
receptacles for use in the operation of Tenant's business equipment which
requires 208 volts or separate electrical circuits, (c) electronic calculating,
CRT systems, etc., and (d) special audio-visual requirements;
13.1.11. special fire protection equipment and raised
flooring;
13.1.12. reflected ceiling plan;
13.1.13. information concerning air conditioning loads,
including, but not limited to, air volume amounts at all supply vents;
13.1.14. non-building standard ceiling heights and/or
materials;
13.1.15. materials, colors and designs of wall coverings
and finishes;
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 20
<PAGE>
13.1.16. painting and decorative treatment required to
complete all construction;
13.1.17. swing of each door;
13.1.18. a schedule for doors (including dimensions for
undercutting of doors to clear carpeting) and frames complete with hardware;
and
13.1.19. all other information reasonably necessary to make
the work complete and in all respects ready for operation.
13.2. Landlord or any person Landlord designates (by written notice to
Tenant) to act for it for the purposes described in this Section 13 ("Landlord's
Consultant"), shall respond to Tenant's request for approval of Tenant's
Construction Plans within five (5) business days of their submission, prepared
in accordance with the terms of this Lease, time being of the essence. In the
event Landlord or Landlord's Consultant shall disapprove of all or a portion of
Tenant's Construction Plans, it shall set forth its reasons therefor in
reasonable detail, in which event Tenant shall revise its Construction Plans and
resubmit same to Landlord within five (5) business days thereafter, time being
of the essence. Landlord or Landlord's Consultant shall respond to Tenant's
request for consent of its revised plans within three (3) business days of
submission, time being of the essence. Neither the recommendation or designation
of an architect nor the approval of the Construction Plans by Landlord ("Final
Plans") shall be deemed to create any liability on the part of Landlord with
respect to the design, functionally or specifications set forth in the Final
Plans.
13.3. Tenant shall be responsible and pay for all work depicted on the
Final Plans.
13.4. Tenant shall indemnify and save Landlord harmless from and
against any and all loss, liability, damage, cost and expense, including without
limitation, reasonable attorneys' fees and disbursements, claimed or actually
from, growing out of or related to (a) any act, or negligence of Tenant or
anyone entering the Premises or Office Building with Tenant's permission, or (b)
the performance of the Tenant's Initial Improvements. The provisions of this
Subsection 13.4 shall survive the termination of this Lease.
13.5. Tenant shall have the right to make revisions to the
Construction Plans ("Revisions"). All Revisions shall be subject to Landlord's
prior written approval, which shall not be unreasonably withheld provided the
Revisions are non-structural in nature. Landlord shall either approve or
disapprove the Revisions within five (5)
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 21
<PAGE>
business days after submission thereof by Tenant, time being of the essence.
Without limiting the generality of the foregoing, no Revision will be approved
unless (a) all changes to and modifications from Tenant's Final Plans are
circled or highlighted as per standard industry practices and (b) said Revisions
conform with the requirements of Subsection 13.1.
13.6. Tenant shall use reasonable efforts to complete Tenant's
Initial Improvements with diligence and continuity.
14. NO REPRESENTATIONS BY LANDLORD: Tenant acknowledges that no
------------------------------
representation as to the condition of the Premises or Office Building, or as to
any matter related to this Lease, have been made by Landlord, unless such are
expressly set forth in this Lease.
15. ACCEPTANCE OF PREMISES: Subject only to the first sentence of
----------------------
of Section 16.1, Tenant accepts the Premises in its present "as is" condition as
of the date hereof. The taking of possession of the Premises for Tenant's use
shall be conclusive evidence as against Tenant that, at the time such possession
was so taken, the Premises and the Office Building were in good and satisfactory
condition, subject to the first sentence of Section 16.1.
16. REPAIRS:
-------
16.1 Landlord warrants that, as of the delivery of the Initial
Premises, First Expansion Space and Second Expansion Space to Tenant according
to Section 54 of this Lease, each such portion of the Premises then being
delivered to Tenant shall comply with all applicable laws, and the electrical,
emergency, plumbing, heating, ventilating, air conditioning, security and
mechanical systems for each portion of the Premises will be in good and working
condition as to the Commencement Date. Tenant shall have 90 days from the
Commencement Date to notify Landlord in writing if any of the foregoing building
systems are not in good and working order as of such date. Tenant shall have 90
days from the First Expansion Commencement Date to notify landlord in writing if
any of the above building systems in the First Expansion Space are not in good
and working condition. Tenant shall have 90 days from the Second Expansion
Commencement Date to notify Landlord in writing if any of the above building
systems in the Second Expansion Space are not in good and working condition. If
Tenant has not notified Landlord in writing that any of such building systems
are not in good and working order within the applicable 90 day period, Tenant
shall conclusively be deemed to have accepted such building systems in their
then "as is" condition, and Landlord's covenant shall have no further force or
effect. Tenant shall, at Tenant's own expense, maintain and keep the Premises,
in good condition and repair during the Lease Term, except only for reasonable
wear and tear and damage by fire or other casualty not caused by fire or other
casualty not caused by Tenant's negligence.
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 22
<PAGE>
Landlord shall maintain in good repair and condition, during the Lease Term, the
roof, foundation, exterior walls and other structural components of the Office
Building, the electrical, emergency, plumbing, heating, ventilating, air
conditioning, security and other mechanical equipment and systems serving the
Office Building generally, the parking areas on the Office Building, the
driveways, walkways, lobbies, entrances, hallways, stairways and elevators
providing access to the Office Building and the Premises, and any other Common
Areas, provided that Landlord shall pass through expenses relating to such
maintenance to Tenant as Operating Expenses to the extent set forth in
Section 5.1.1 of this Lease. Tenant shall, at Tenant's expense but under the
direction of Landlord, promptly repair, and make replacements where necessary,
any injury or damage to the Office Building, including but not limited to, any
and all broken glass, caused by Tenant, Tenant's employees, agents, servants,
and licensees.
16.2. Tenant shall give Landlord notice of any and all accidents
to or defects in any plumbing, electrical, air-cooling or heating system located
in, servicing or passing through the Premises, or in any part or appurtenance
of the Premises as soon as practicable after Tenant receives notice of any such
accident or defect.
16.3. If the Premises are or become infested with vermin,
Landlord, at Tenant's expense, shall cause the same to be exterminated from time
to time to the satisfaction of Landlord and Tenant.
16.4. In performing its obligations to furnish any services under
Section 12 of this Lease and to perform maintenance, repairs and replacement
under this Section 16, Landlord shall use a management company reasonably
acceptable to Tenant. If Landlord fails within ten days after written notice to
furnish any services or to commence any such required maintenance, repairs or
replacements and thereafter to proceed with diligence to complete such
maintenance, repairs or replacements, if Landlord's failure to furnish such
services or commence such maintenance, repairs or replacements adversely affects
Tenant's ability to operate in the Premises, Tenant may obtain such services or
perform such maintenance, repairs or replacements and obtain reimbursement from
Landlord for Tenant's reasonable, out-of-pocket expenses incurred by Tenant in
obtaining such services and performing such maintenance, repairs and
replacements, but in no event will Tenant have a right of offset for such
amounts against any rent or other payments due hereunder. If Tenant fails after
ten (10) days' written notice to commence repairs required under this Lease to
be made by Tenant and thereafter to proceed with continuity and diligence to
complete such repairs, the same may be made by Landlord, at the expense of
Tenant, and the expenses thereof incurred by Landlord shall be collectible by
Landlord as Additional Rent after rendition of a bill or statement therefor.
Tenant: [Initials appear here]
-----------------------
Landlord: [Initials appear here]
-----------------------
Page 23
<PAGE>
17. ALTERATIONS:
-----------
17.1 Tenant shall make no alterations, additions, or improvements
to the Premises ("Alterations") without the written consent of Landlord.
Landlord agrees not to withhold unreasonably its consent to any Alterations
which are nonstructural and which do not materially or adversely affect the
Office Building's mechanical systems or services, proposed to be made by Tenant
to adapt the Premises for the Permitted Use, provided that (i) the plans and
specifications showing such Alterations are prepared by an engineer or architect
reasonably approved by Landlord, (ii) such Alterations are performed only by
contractors or mechanics reasonably approved by Landlord, (iii) such Alterations
do not affect any part of the Office Building other than the Premises, (iv) such
Alterations do not adversely affect any service required to be furnished by
Landlord to Tenant or to any other tenant or occupant of the Office Building,
and (v) such Alterations do not reduce the value or utility of the Office
Building and are not visible from the exterior of the Premises or the Common
Areas. Notwithstanding anything to the contrary contained herein, (a) subject to
compliance with the all the laws and Landlord's reasonable approval of the
plans, Tenant may modify the exterior of the Office Building to accommodate an
exterior balcony on the second floor similar to the one existing on the third
floor and (b) Tenant need not obtain Landlord's consent for Alterations of a
purely cosmetic nature (e.g. painting or installation of wall covering or
carpeting) or other nonstructural Alterations which do not materially or
adversely affect the Office Building's mechanical systems or services, the
estimated cost of the labor and material for which Alterations in any one
instance (or in a series of instances effectuating a single alteration plan)
does not exceed $5,000.00 (collectively, "Cosmetic Alterations") provided that
(a) such Cosmetic Alterations are performed by contractors reasonably acceptable
to Landlord, (b) Landlord shall have received, at least ten (10) days prior to
the commencement of such Cosmetic Alterations, notice of the Cosmetic
Alterations together with certificates of insurance required to be maintained by
such contractors and copies of any existing drawings, plans and specifications
prepared with respect to such Cosmetic Alterations, and (c) the terms and
provisions of this Lease regarding such Alterations are otherwise fully complied
with Except as otherwise provided in this Section 17, all Alterations shall be
done at Tenant's expense. Tenant shall be required to obtain all appropriate
governmental permits and approvals at Tenant's expense prior to the beginning of
any such work in the Premises. All work by Tenant shall be performed in a good
and workmanlike manner, in compliance with all applicable law.
17.2 Prior to making any Alterations other than Cosmetic
Alterations, Tenant, (i) shall submit to Landlord or any person Landlord
designates to act for the purposes described in this Section 17 ("Landlord's
Consultant") detailed plans and specifications
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
<PAGE>
(including layout, architectural, mechanical and structural drawings stamped by
a professional engineer or architect licensed in the State of Florida and
reasonably approved by Landlord) for each proposed Alteration and shall not
commence any such Alterations without first obtaining landlord's approval of
such plans and specifications (which approval Landlord agrees not to withhold,
delay or condition unreasonably, (ii) shall, at Tenant's expense, obtain all
permits, approvals and certificates required by any governmental or
quasi-governmental bodies, and (iii) shall furnish to Landlord duplicate
original policies of worker's compensation insurance (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors in connection
with such Alterations) and comprehensive public liability (including property
damage coverage) insurance in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably require, naming Landlord and its
agents as additional insureds. Notwithstanding the provision of the preceding
sentence to the contrary, to the extent any of the requirements set forth in
items (i) and (ii) above are unnecessary given the nature and scope of Tenant's
planned Alterations Landlord agrees to waive the same upon Tenant's request.
Upon completion of such Alterations, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alterations required by any governmental
or quasi-governmental bodies and shall furnish Landlord with copies thereof.
All Alterations shall be made and performed in accordance with the ADA,
including, but not limited to, the accessibility provisions thereof; all
materials and equipment to be incorporated in the Premises as a result of all
Alterations shall be comparable to or better than the quality of such
materials and equipment existing on the Commencement Date of this Lease; and
no materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement. If at the time Tenant
requests Landlord's approval of Alterations under this Section 17.2 less than
four years remains in the Lease Term (as it may be extended under this Lease),
Landlord may designate Alterations which Tenant must remove at the end of the
Lease Term ("Designated Property") at Tenant's expense.
17.3 All contractors and technicians performing work for Tenant
within the Premises or Office Building shall be referred to Landlord for
approval before performing such work. This provision shall apply to all work
including, but not limited to, installation of telephones, telegraph, and telex
equipment, electrical devices and attachments, and all installations affecting
floors, walls, window, doors, ceilings, equipment or any physical feature of the
Office Building or the Premises. None of this work shall be done by Tenant
without Landlord's prior written approval, which shall not be unreasonably
withheld.
17.4 Except for Designated Property and Tenant's removable trade
fixtures and personal property and any other removable
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 25
<PAGE>
Alterations which Landlord agrees to treat as Tenant's property before such
Alterations are constructed or installed (all of the foregoing, "Tenant's
Property"), all Alterations made to or installed on the Premises by Tenant or by
Landlord for Tenant's benefit (including, but not limited to, floor covering,
wall covering, wall and ceiling light fixtures, carpets, drapes and drapery
hardware) shall be the property of Landlord during the Lease Term and shall, at
Landlord's option, remain the property of Landlord upon the Expiration Date or
earlier termination of this Lease. Landlord will not unreasonably withhold its
agreement to treat removable Alterations as Tenant's Property. No later than
the expiration of the Lease Term, Tenant shall remove all of the Designated
Property and Tenant's Property and Tenant shall repair all injury done by or in
connection with the removal of said property and surrender the Premises
(together with all keys to the Premises) in as good a condition as they were
after the completion of Tenant's Initial Improvements and subsequent Alterations
other than Designation Property, reasonable wear and tear, fire and other
casualty and eminent domain excepted. All property of Tenant, whether part of
Alterations or otherwise, remaining on the Premises after the expiration of the
Lease Term shall be deemed conclusively abandoned and may, at the election of
Landlord, either be retained as Landlord's property or be removed by Landlord,
and Tenant shall reimburse Landlord for the cost of removing the same and for
the repair of damage caused by such removal and for restoring the Premises as
required hereunder.
18. CONSTRUCTION LIENS:
------------------
18.1 Tenant shall discharge by payment or bond all liens of
contractors, subcontractors, mechanics, laborers, materialmen, and other items
of like character, and shall indemnify Landlord against all expenses, costs and
charges, including bond premiums for release of liens and attorneys' fees,
disbursements and costs reasonably incurred, at the trial or appellate level, in
and about the defense of any suit in discharging the Premises or the Office
Building or any part of them from any liens, judgments, or encumbrances caused
or suffered by Tenant or in any other way arising from, growing out of or
related to Tenant's Initial Improvements or any Alterations except if paid
directly by Landlord, and for payment of which Landlord is solely responsible.
In the event any such lien shall be made or filed, Tenant shall bond against or
discharge the lien within five (5) business days after the date Tenant first
becomes aware of the same. The provisions of this Subsection 18.1 shall survive
the termination of this Lease.
18.2 Tenant shall not have any authority to create any liens for
labor or material on Landlord's or other third party's interest in the Premises
or the Office Building and all persons contracting with Tenant for the
destruction or removal of any facilities or other improvements on or about the
Premises, and all materialmen, contractors, subcontractors, mechanics, and
laborers are
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 26
<PAGE>
hereby charged with notice that they must look only to Tenant and to Tenant's
interests in the Premises to secure the payment of any bill for work done or
material furnished at the request or instruction of Tenant. Tenant shall comply
with Florida Statutes, Section 713.10, as amended from time to time, by
notifying all of its contractors that the interest of Landlord shall not be
subject to liens for improvements made by Tenant and shall provide proof of such
notices to Landlord in form satisfactory to Landlord.
19. INDEMNIFICATION:
---------------
19.1. In consideration of the Premises being leased to Tenant for the
above-described rent, Tenant covenants and agrees that (i) Tenant, at all times,
does and shall indemnify and hold harmless Landlord from all losses, claims,
damages, injuries, liabilities, litigation and other expenses, and attorneys'
fees, disbursements and costs, including those for appellate matters, which may
arise or be claimed against Landlord and be in favor of any persons, firms or
corporations, for any injuries or damages to the person or property of any
persons, firms or corporations, consequent upon, arising from, growing out of or
related to the use or occupancy of the Premises by Tenant, or any acts or
negligence of Tenant, its agents, servants, employees, licensees, visitors,
customers, patrons or invitees, or Tenant's failure to comply with any laws,
statutes, ordinances, codes or regulations applicable to the Premises or
Tenant's use of the Premises as provided in this Lease; and (ii) Landlord shall
not be liable to Tenant for any damages, losses or injuries to the persons or
property of Tenant which may be caused by the acts, neglect, omissions or faults
of any persons, firms or corporations, except when such injury, loss or damage
results directly from the negligence or willful malfeasance of Landlord, its
agents, servants or employees acting in the scope of their agency or employment.
Tenant acknowledges that the hold harmless, defense and indemnity provisions of
this Section 19 are material to Landlord and Tenant's breach of these provisions
in any way whatsoever shall constitute a material breach of this Lease.
19.2. In case Landlord shall be made a party to any litigation
commenced against Tenant (except if related to the acts or negligence of
Landlord, its agents, employees or contractors or a breach by Landlord of its
obligations under this Lease), then Tenant shall protect and hold Landlord
harmless and shall pay all costs, expenses and reasonable attorneys' fees,
disbursements and costs incurred or paid by Landlord in connection with such
litigation and any appeal thereof. In case Tenant shall be made a party to any
litigation commenced against Landlord (except if related to the use, operation
or occupancy of the Premises or the acts or negligence of Tenant, its agents,
employees, or contractors or a breach by Tenant of its obligations under this
Lease), then Landlord shall protect and hold harmless Tenant and shall pay all
costs, expenses, attorneys' fees,
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 27
<PAGE>
disbursements and costs incurred or paid by Tenant in connection with such
litigation and any appeal thereof.
19.3. Tenant agrees that all personal property brought into the
Premises or the Office Building by Tenant, its employees, servants, agents, and
licensees shall be at the sole risk of Tenant, such employees, servants, agents
and licensees. Landlord shall not be liable for theft of any such property or
of any money deposited in the Premises or the Office Building, or for any
damages to such property; such theft or damage shall be the sole responsibility
of Tenant. Tenant shall not rely on Landlord nor hold Landlord responsible for
provision of security. The provisions of this Section 19 shall survive the
termination of this Lease.
20. INSURANCE:
---------
20.1. Tenant shall not do or permit to be done any act or thing
upon the Premises or elsewhere in the Office Building which will invalidate or
be in conflict with any insurance policies covering the Office Building and the
fixtures and property therein, but Landlord warrants that the use of the
Premises for the Permitted Uses will not cause any such invalidation or
conflict. Tenant at its own expense shall comply with all rules, orders,
regulations, or requirements of the Board of Fire Underwriters, or any other
similar body having jurisdiction to the extent applicable to Tenant's use of the
Premises. If Landlord's insurance premiums exceed the standard premium rates
because the nature of Tenant's operations on the Premises, then Tenant shall,
upon receipt of appropriate invoices from Landlord, reimburse Landlord for such
increase in premiums as Additional Rent.
20.2. At all times during the Lease Term, Tenant shall keep
Tenant's Property insured against loss or damage by fire or other casualty, with
fire and extended coverage insurance in an amount equal to not less than one
hundred percent (100%) of the full replacement value of such items, written by
one or more responsible insurance companies acceptable to Landlord and licensed
to do business in the State of Florida, naming Tenant as the insured, and
Landlord as additional insured and certificate holder. Each such policy shall
contain a replacement cost endorsement and shall be non-cancelable for any cause
without first giving Landlord thirty (30) days' prior written notice.
20.3. At all times during the Lease Term, Tenant shall maintain in
force a policy or policies of commercial general liability insurance, including
property damage and Tenant's obligations under Section 21.2(i), written by one
or more responsible insurance companies rated Best A+ or better and naming a
financial rating of at least "13", reasonably acceptable to Landlord and
licensed to do business in the State of Florida, in form reasonably acceptable
to Landlord, insuring
Tenant: [Initials appear here]
-----------------------
Landlord: [Initials appear here]
-----------------------
Page 28
<PAGE>
Tenant and naming Landlord and Landlord's managing agent as additional insureds
and naming Landlord as a certified holder, against loss of life, bodily injury
and/or property damage with respect to the Premises and the business operated by
Tenant in the Premises, in which the limit of public liability shall be not less
than Two Million and No/100 Dollars ($2,000,000.00) combined single limit bodily
injury and property damage liability on an occurrence basis with no policy
aggregate, or such amount as Landlord may require from time to time in its
reasonable discretion. Each such policy shall be non-cancelable for any cause
without first giving Landlord thirty (30) days' prior written notice. Tenant's
maintaining insurance as required under the Lease shall not diminish Tenant's
liability under this Lease.
20.4. A copy of the insurance policies required in this Section 20
or an acceptable certificate of such insurance shall be delivered to Landlord on
or before the Commencement Date. Evidence of renewal of such policies shall be
delivered to Landlord not later than thirty (30) days before the expiration of
each policy. If such evidence is not so delivered to Landlord within five (5)
days after written notice from Landlord to Tenant, Landlord may, but shall not
be obligated to, obtain all or a portion of such insurance, all costs of which
shall be paid by Tenant to Landlord as Additional Rent promptly upon Landlord's
giving notice to Tenant of such costs.
20.5. If Tenant is reasonably able to obtain a waiver of its
insurance company's rights of subrogation against Landlord, to the extent of the
insurance proceeds received by Tenant, Tenant waives any and all rights of
recovery against Landlord and Landlord's managing agent for or arising out of
damage to or destruction of any property of Tenant from causes then included
under standard fire and extended coverage insurance policies or endorsements
under Tenant's insurance policies, and Tenant shall use reasonable efforts to
obtain a waiver from the carrier of Tenant's insurance on the Premises releasing
such carrier's subrogation rights as against Landlord and landlord's managing
agent.
20.6 Landlord shall maintain during the Lease Term (as may be
extended pursuant to Section 53) (i) insurance covering the Office Building
under an "all risk" policy of insurance with a full replacement value
endorsement if reasonably obtainable (and, if not, in the maximum amount of
coverage otherwise available) and (ii) a policy of commercial general liability
insurance indemnifying Landlord against all claims, actions and damages for
bodily injury or personal injury to, or death of, persons or damage to property
on or about the Office Building, written on an "occurrence" basis, in amounts
not less than $2,000,000. Landlord shall deliver to Tenant a certificate
evidencing such insurance before the Commencement Date and a certificate
evidencing the renewal of such insurance at least 30 days before the expiration
of any policy. All policies of such insurance shall be non-
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 29
<PAGE>
cancelable for any cause without first giving Tenant 30 days or prior written
notice. If, ten days after written notice from Tenant, Landlord fails to
maintain such insurance, Tenant may, but shall not be obligated to, obtain all
or any portion of such insurance, and Tenant shall have the right to apply all
reasonable costs of obtaining such insurance as a credit against Base Rent and
other charges due under this Lease. Notwithstanding any other provision of this
Lease, if Landlord is reasonably able to obtain a waiver of its insurance
company's rights of subrogation against Tenant, to the extent of insurance
proceeds received by Landlord, Landlord waives all rights of recovery against
Tenant for or arising out of damage to or destruction of any property of
Landlord from causes then included under such all risk insurance policy or any
other insurance carried by Landlord on the Office Building, and Landlord shall
use reasonable efforts to obtain a waiver from the carrier of Landlord's
insurance on the Office Building releasing such carrier's rights of subrogation
against Tenant.
21. DAMAGE OR DESTRUCTION:
---------------------
21.1 If the Premises or any part of the Office Building shall be
damaged by fire or other casualty, and if such damage does not render
twenty-five percent (25%) or more of the Premises untenantable, then Landlord
shall proceed to repair and restore the Premises to its condition preceding the
damage, subject to provisions of this Section 21. If the Premises is damaged by
fire or other casualty and twenty five (25%) or more of the Premises is rendered
untenantable or if the Office Building shall be damaged by fire or other
casualty such that, in Landlord's opinion, substantial alteration or
construction of the Office Building shall be required, then Landlord shall,
within ninety (90) days and in good faith estimate the length of time required
substantially to complete the repairs and restoration of the damage and notify
Tenant of such estimate. If the estimate is for more than one hundred eighty
(180) days from date of casualty, then Landlord may terminate this Lease. If
the estimate is for more than two hundred seventy (270) days, then either
Landlord or Tenant may terminate this Lease. In either event, the termination
shall be effective as of the later of the date of the notice of termination or
the date Tenant vacates the Premises and removes all of its property therefrom.
Landlord may give its notice of termination simultaneously with its estimate;
Tenant shall give its notice of termination within twenty (20) days of its
receipt of Landlord's estimate.
21.2 If this Lease is not terminated as provided in Subsection
21.1, Landlord shall proceed with reasonable diligence to repair and restore the
Premises to its condition preceding the damage subject to the provisions of this
Section 21, to reasonable delays for insurance adjustment, to Force Majeure, and
to then-applicable building zoning laws, codes and regulations. Landlord shall
have
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 30
<PAGE>
no liability to Tenant, and Tenant shall not be entitled to terminate this
Lease, if such repairs and restoration are not in fact completed within
Landlord's estimated time period, so long as Landlord shall have proceeded with
reasonable due diligence. Notwithstanding anything to the contrary in this
Lease, (a) if any damage which would cost more than $50,000.00 to repair shall
occur during the last two (2) Lease Years, Landlord shall have the option to
terminate this Lease by written notice to Tenant and in such event this Lease
shall terminate on the later of the date of the notice of termination or the
date Tenant vacates the Premises and removes all of its property therefrom to
the extent required under Section 17.4 of this Lease (provided that Tenant can
eliminate Landlord's right to terminate the Lease in this Subparagraph (a) if
Tenant exercises its next option to extend the Lease (if available) within five
(5) days of notice from Landlord of its termination of the Lease), and (b)
Landlord shall not be obligated to repair or restore the Premises or the Office
Building if a holder of a mortgage or underlying leasehold applies proceeds of
insurance to the loan or lease payment balance, and the remaining proceeds, if
any, available to Landlord are insufficient to pay for such repair or
restoration. Wherever in this Section 21 reference is made to restoration of the
Premises, Landlord's obligations shall not include Tenant's Property, the
restoration of which shall be Tenant's sole responsibility.
21.3. During any time that the Premises is materially damaged due to
causes set forth in this Section 21, and as a result thereof Tenant is unable to
occupy or use the damaged portion of the Premises in its normal course of
business, the Base Rent and Additional Rent shall be abated in an amount bearing
the same ratio to the total of such rent for such period as the unusable portion
of the Premises bears to the entire Premises. Full Base Rent and Additional Rent
shall recommence upon substantial completion of restoration of the Premises.
21.4 During any period of Tenant's repair and restoration of
Tenant's Property following substantial completion of Landlord's repair and
restoration work, Base Rent and Additional Rent shall be payable as if said fire
or other casualty had not occurred.
22. EMINENT DOMAIN:
--------------
22.1. If any part of the building constituting a portion of the
Office Building, other than a part not interfering with maintenance, operation
or use of the Premises or the Office Building, is taken by condemnation or
eminent domain (including purchase in lieu of condemnation) during the Lease
Term, Landlord may elect, by giving notice to Tenant within sixty (60) days of
the date of such taking, to terminate this Lease or to continue it in effect.
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 31
<PAGE>
22.2. If any part of the building constituting a portion of the
Office Building is taken by condemnation or eminent domain (including purchase
in lieu of condemnation), Tenant may elect, by giving notice to Landlord within
sixty (60) days of Tenant's receiving notice of such taking from either Landlord
or the taking authority, to terminate this Lease. If all of the Premises is
taken by condemnation or eminent domain, this Lease shall terminate on the date
of taking.
22.3. If there is a taking as described in this Section 22 which
renders a portion of the Premises permanently unusable for its intended use, the
Base Rent and Additional Rent shall be reduced in the proportion of the area of
Premises so taken to the entire Premises. If this Lease should terminate under
any provisions of this Section 22, Base Rent and Additional Rent shall be
payable on a daily basis up to the date of termination.
22.4. All sums awarded (or agreed upon between Landlord and the
condemning authority) for the taking of the interest of Landlord or Tenant or
both of them, whether as damages or as compensation, and whether for partial or
total condemnation, will be the property of Landlord and Tenant hereby assigns
to Landlord, Tenant's claim for the value of its leasehold interest. Tenant may,
however, pursue any claim of business damages and damages to Tenant's Property
and cost of relocation against the condemning authority, so long as such claim
will not diminish Landlord's award.
23. PARKING:
-------
Landlord shall not be liable for any damage of any nature whatsoever
to, or any theft of, automobiles or other vehicles or the contents to them,
while in or about any parking areas.
24. ESTOPPEL STATEMENT: Tenant shall from time to time, upon not less
------------------
than ten (10) days' prior request by Landlord, a purchaser of Landlord's
interest or any mortgagee, deliver to Landlord or a party designated by Landlord
or any mortgagee, as the case may be a statement in writing certifying (a) that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease as modified is in full force and effect and
stating the modifications); (b) the dates to which the Base Rent, Additional
Rent and other charges have been paid; (c) to the best of Tenant's knowledge,
that Landlord is not in default under any provisions of this Lease (or, if in
default, the nature of the default in detail); (d) the Commencement and
Expiration Dates of this Lease and the annual Base Rent and current Additional
Rent required to be paid by Tenant under this Lease; (e) that Tenant accepts the
Premises and (f) any other accurate statements reasonably required by Landlord
or its mortgagee or prospective mortgagee or other lender or purchaser.
Tenant: [Initials appear here]
------------------------
[Initials appear here]
Landlord: ------------------------
Page 32
<PAGE>
25. NON-DISTURBANCE, SUBORDINATION, AND ATTORNMENT OF LEASE:
-------------------------------------------------------
25.1. Landlord shall deliver to Tenant an agreement (a
"Non-Disturbance Agreement") from the holder of any mortgage or deed of trust or
the lessor under any ground lease or overlease which now or hereafter encumbers
or relates to any interest in the Office Building, in a form reasonably
acceptable to such holder or lessor and which does not materially adversely
affect Tenant's rights under this Lease, except relating to insurance proceeds
and/or condemnation awards, which agreement shall provide that, if any such
holder forecloses its mortgage or deed of trust or any such lessor terminates
its ground lease or overlease, or if any such holder or lessor otherwise
succeeds to Landlord's interest in this Lease or the Office Building, provided
Tenant is not in default hereunder after any applicable notice and the
expiration of any applicable grace period, such holder or lessor shall recognize
Tenant's rights under this Lease, shall not disturb Tenant's tenancy of the
Premises under this Lease, and shall assume Landlord's obligations under this
Lease, subject to the limitations set forth in the last sentence of
Section 25.1.2 of this Lease and such other limitations as do not materially
adversely affect Tenant's rights under this Lease. Provided Tenant receives a
Non-Disturbance Agreement from each such present or future holder of Lessor,
Tenant shall agree in each Non-Disturbance Agreement that:
25.1.1. This Lease shall be subject and subordinate to any
such mortgage, deed of trust, ground lease or overlease, and to any amendment,
modification renewal or extension thereof;
25.1.2. If any such holder forecloses its mortgage or deed of
trust or any such lessor terminates its ground lease or overlease, or if any
such holder or lessor otherwise succeeds to Landlord's interest in this Lease or
the Office Building, or if the interests of Landlord under this Lease shall be
transferred to any person or entity in any way either voluntarily or by reason
of foreclosure or other proceedings for enforcement of any mortgage or lease
encumbering all or part of, the Office Building or the Premises, Tenant shall be
bound and shall attorn to such transferee, holder or lessor as its landlord
("Purchaser") for the balance of the Lease Term, and any extensions or renewals
of this Lease which may be effected in accordance with the terms and provisions
of this Lease, with the same force and effect as if Purchaser were the landlord
under this Lease, said attornment to be effective and self-operative without the
execution of any further instruments upon Purchaser succeeding to the interest
of Landlord under this Lease. Notwithstanding the provisions of the foregoing
sentence, Tenant shall, within ten (10) days of request of Landlord or the
holder of any such lease or mortgage, execute and deliver such instrument that
such successor landlord may reasonably request to evidence such attornment.
Notwithstanding the
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 33
<PAGE>
foregoing, (a) such holder or lessor shall have no liability for refusal or
failure to fund, perform or complete Tenant's Initial Improvements; (b) such
holder or lessor shall not be liable for any act, default or negligence of any
predecessor landlord under this Lease, but such holder or lessor shall be
obligated, as landlord under this Lease, to cure any continuing condition at the
Office Building that materially interferes with Tenant's use or occupancy of
the Premises; (c) such holder or lessor shall not be bound by any previous
modification of this Lease not expressly provided for in this Lease or by any
previous prepayment of more than one month of rent, unless such modification or
prepayment shall have been expressly approved in writing by such holder or
lessor; and (d) such holder or lessor shall not be obligated to repair, restore,
replace or rebuild the Office Building or the Premises, in case of total or
substantially total damage or destruction, beyond such repair, restoration
and/or rebuilding as can reasonably be accomplished with the net proceeds of
insurance actually received by, or made available to, such holder or lessor.
25.2 In the event of any act or omission by Landlord, if any, which
would or may give Tenant the right to diminish, abate or suspend rent or
terminate this Lease or to claim a partial or total eviction, Tenant shall not
exercise any such right until:
25.2.1. Tenant has given written notice of any such act or
omission to the holder of any leasehold mortgage or of any fee mortgage and to
any over landlord whose names and addresses have been furnished to Tenant by
notice in the manner described in Section 35; and
25.2.2. A reasonable period of time for remedying such act
or omission shall have elapsed following receipt of such notice during which the
parties to whom such notice has been given, or any of them, after the receipt of
such notice has not commenced with reasonable diligence to remedy such act or
omission or to cause the same to be remedied.
26. (INTENTIONALLY DELETED)
-----------------------
27. ASSIGNMENT AND SUBLETTING
-------------------------
27.1 Tenant shall not make or permit an assignment, pledging,
mortgaging, encumbrance, subletting or use (whether for desk space, mailing
privileges or otherwise) by parties other than Tenant, of all or a portion of
the Premises or of Lessee's interest in this Lease (a "Transfer"), without the
prior written consent of Landlord in each instance except with respect to
Transfers to an individual, partnership, limited liability company, corporation
or other business organization controlling, controlled by or under common
control with
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 34
<PAGE>
Tenant or a successor by merger or consolidation of or into Tenant or by sale of
all or substantially all of the assets of Tenant (any of the foregoing, "Tenant
Affiliate"). Landlord's consent to an assignment or sublease or occupancy of a
portion of the Premises by a third party shall not be unreasonably withheld,
provided that the requirements of Subsection 27.4 and other subsections of this
Section 27 are met. Any Transfer in contravention of the provisions of this
Section 27 shall be void.
27.2. If Tenant desires to Transfer this Lease or all or
part of the Premises, Tenant shall give notice thereof to Landlord and, except
for Transfers to Tenant Affiliates, the notice shall be accompanied by (a) a
letter signed by the proposed assignee or sublessee setting forth all of the
material business terms of the proposed assignment or sublease, the effective or
commencement date of which shall be not more than one hundred and eighty (180)
days after the giving of such notice; and (b) a statement setting forth in
reasonable detail the identity of the proposed assignee, subtenant, or an
occupant or user of the Premises other than Tenant (whether of desk space,
mailing privileges, or otherwise) or other transferee (a "Transferee"), the
nature of its business and its proposed use of the Premises.
27.3. If Landlord approves a proposed sublease or assignment,
Tenant shall promptly, on receipt, pay Landlord 50% of all profit arising from
the Transfer of Tenant's interest under this Lease.
27.4. Providing that this Lease is in full force and effect
and that a Tenant Default has not occurred which continues after notice and the
expiration of any applicable grace period as of the time of Landlord's consent,
and as of the effective date of the proposed assignment or commencement date of
the proposed sublease, Landlord's consent (which must be in writing) to the
proposed assignment or sublease; shall not be unreasonably withheld, provided
and upon condition that:
27.4.1. Tenant shall have complied with the
provisions of Subsection 27.2;
27.4.2. In Landlord's reasonable judgment, the
proposed assignee or subtenant or occupant is engaged in a business or activity,
which is limited to the use of the Premises for the Permitted Use;
27.4.3. The proposed assignee or subtenant or
occupant is a reputable person of good character and with sufficient financial
worth considering the responsibility involved, and Landlord
Tenant: [Initials appear here]
------------------------
[Initials appear here]
Landlord: ------------------------
Page 35
<PAGE>
has been furnished with current financial information, including without
limitation, its most recent financial report;
27.4.4. The form of the proposed sublease or instrument of
assignment or occupancy comply with the applicable provisions of this Section
27;
27.4.5. There shall not be more than a total of three (3)
occupants (other than Tenant and Tenant Affiliates) of the Premises;
27.4.6. The proposed subtenant or assignee or occupant shall
not be entitled, directly of indirectly, to diplomatic or sovereign immunity and
shall be subject to the service of process in, and the jurisdiction of the
courts of the State of Florida;
27.4.7. Neither (a) the proposed assignee or sublessee nor (b)
any person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee, is then in
occupancy of any part of the Office Building;
27.4.8. The proposed assignee or sublessee is not a person with
whom Landlord has been or is then negotiating to lease space in the Office
Building;
27.4.9. The proposed occupancy shall not increase the office
cleaning or other requirements or impose an extra burden upon services to be
supplied by Landlord to Tenant.
27.5. In the event of a Transfer of this Lease, after a Tenant Default
and notice to Tenant, Landlord may collect rent from the Transferee and apply
the net amount collected to the Base Rent or Additional Rent reserved in this
Lease, but no Transfer or collection shall be deemed a waiver of the provisions
of this Lease, the acceptance of the Transferee as tenant, or a release of
Tenant from the further performance by Tenant of covenants and obligations on
the part of Tenant contained in this Lease. The consent by Landlord to a
Transfer shall not in any way by construed to relieve Tenant from obtaining the
express consent in writing of Landlord to any further Transfer. In no event
shall any permitted Transferee (other than a Tenant Affiliate) transfer its
interest, without Landlord's prior written consent in each instance.
27.6. In the event that (a) Landlord fails to consent to a proposed
Transfer, and (b) Tenant fails to execute and deliver the Transfer instrument to
which Landlord consented within ninety (90) days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of Subsection 27.2.
Tenant: [Initials appear here]
-------------------------
Landlord: [Initials appear here]
-------------------------
Page 36
<PAGE>
27.7. With respect to each and every Transfer authorized by
Landlord under the provisions of this Lease, it is further agreed that:
27.7.1. No subletting shall be for a term ending later than
one (1) day prior to the Expiration Date;
27.7.2. No Transfer instrument shall be delivered, and no
third party shall take possession of the Premises until an executed counterpart
of such instrument has been delivered to Landlord;
27.7.3. Each Transfer instrument shall provide that it is
subject and subordinate to this Lease and to the matters to which this Lease is
or shall be subordinate, and that in the event of termination, re-entry or
dispossession by Landlord under this Lease, Landlord may, at its option, take
over all of the right, title and interest of Tenant under any Transfer
instrument, and the Transferee shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such Transfer instrument, except
that Landlord shall not (a) be liable for any previous act or omission of Tenant
under such instrument, (b) be subject to any counterclaim, offset or defense,
not expressly provided in such instrument, which theretofore accrued to such
Transferee against Tenant, (c) be bound by any previous modification of such
instrument not expressly consented to in writing by Landlord or by any previous
prepayment of more than one (1) month's Base Rent and Additional Rent or (d) be
obligated to perform any work in the Premises or the Office Building or to
prepare them for occupancy beyond Landlord's obligations under this Lease. The
provisions of this Section 27 shall be self-operative and no further instrument
shall be required to give effect to this provision.
27.8. If Tenant is a corporation other than a corporation
whose stock is listed and traded on a nationally recognized stock exchange, the
provisions of Section 27 shall apply to a transfer (by one or more transfers) of
a majority of the stock of Tenant to an entity other than a Tenant Affiliate as
if such transfer of a majority of the stock of Tenant were an assignment of this
Lease; but said provisions shall not apply to transactions with a corporation
into or with which Tenant is merged or consolidated or to which substantially
all of Tenant's assets are transferred, provided that in any of such events (a)
the successor to Tenant has a net worth computed in accordance with generally
accepted accounting principles at least equal to the greater of (1) the net
worth of Tenant immediately prior to such merger, consolidation or transfer, or
(2) the net worth of Tenant herein named on the date of this Lease, and (b)
proof satisfactory to Landlord of such net worth shall have been delivered to
Landlord at least ten (10) days prior to the effective date of any such
transaction. If Tenant is a partnership, the provisions of Section 27
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 37
<PAGE>
shall apply to a transfer (by one or more transferees) of a majority interest in
the partnership, as if such transfer were an assignment of this Lease.
27.9. Any Transfer shall be made only if, and shall not be
effective until, the Transferee shall execute, acknowledge and deliver to
Landlord an agreement in form and substance satisfactory to Landlord whereby the
Transferee shall assume the obligations of this Lease on the part of Tenant to
be performed or observed and whereby the Transferee shall agree that the
provisions in Section 27 shall notwithstanding such Transfer, continue to be
binding upon it in respect of all future Transfers. The original named Tenant
covenants that, notwithstandidng any Transfer, whether or not in violation of
the provisions of this Lease, and notwithstanding the acceptance of Base Rent
and/or Additional Rent by Landlord from a Transferee, or any other party, the
original named Tenant shall remain fully liable for the payment of the Base
Rent and Additional Rent and for the other obligations of this Lease on the part
of Tenant to be performed or observed. Notwithstanding the foregoing, in the
event of a Transfer to a Tenant Affiliate, the Transfer shall be effective if
Tenant delivers the Assumption Agreement to Landlord within 30 days from the
date of the Transfer.
27.10. The joint and several liability of Tenant and any immediate
or remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant,'s part to be performed shall not be
discharged, released or impaired by any agreement made by Landlord extending
the time, or modifying any of the obligations of this Lease, or by any waiver or
failure of Landlord to enforce any of the obligations of this Lease.
27.11. The listing of any name other than that of Tenant, whether
on the doors of the Premises or the Office Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Premises, nor shall it be deemed to be the consent of Landlord to any transfer.
27.12. If Landlord shall recover the Premises before the Expiration
Date or earlier termination of the Lease Term, Landlord shall have the right, at
its option, to take over any subleases or other occupancy agreements of the
Premises. Tenant expressly assigns and transfers to Landlord such of the
subleases and other occupancy agreements as Landlord may elect to take over at
the time of such recovery of possession, such assignment and transfer not to be
effective until the termination of this Lease or re-entry by Landlord or
successor by Landlord to Tenant's estate in the Premises at which time Tenant
shall upon request of Landlord execute, acknowledge and deliver to Landlord such
further instruments as may be necessary to vest in Landlord the then existing
subleases. Every subletting and
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 38
<PAGE>
occupancy is subject to this condition and by its acceptance of and entry into a
sublease or other occupancy agreement, each subtenant and occupant shall be
deemed conclusively to have thereby agreed that from and after the termination
of this Lease or re-entry by Landlord or of Landlord's successor to Tenant's
estate, that the subtenant or occupant shall waive any right to surrender
possession or to terminate the sublease or other occupancy agreement and, at
Landlord's election, such subtenant or occupant shall be bound to Landlord for
the balance of the term of such sublease or occupancy agreement and shall attorn
to and recognize Landlord as its landlord, under all of the then executory terms
of such sublease or other occupancy agreement, except that Landlord shall not
(a) be liable for any previous act, omission or negligence of Tenant, (b) be
subject to any counterclaim, defense or offset not expressly provided for in
such sublease or occupancy agreement, which theretofore accrued to such
subtenant or occupant against Tenant, (c) be bound by any previous modification
or amendment of such sublease or occupancy agreement not expressly agreed to by
Landlord or by any previous prepayment of more than one (1) month's Base Rent
and Additional Rent which shall be payable as provided in the sublease or
occupancy agreement, or (d) be obligated to perform any work in the Office
Building or the Premises (to prepare them for occupancy) beyond Landlord's
obligations under this Lease. The subtenant or occupant shall execute and
deliver to Landlord any instruments Landlord may reasonably request to evidence
and confirm such attornment.
28. SUCCESSORS AND ASSIGNS: All terms, provisions, covenants and
----------------------
conditions to be observed and performed by Tenant shall be applicable to and
binding upon Tenant's respective heirs, administrators, executors, personal
representatives, successors and assigns, subject, however, to the restrictions
as to Transfers by Tenant as provided in this Lease. All covenants of this Lease
shall be deemed to be covenants running with the land.
29. INSOLVENCY, DEFAULT:
-------------------
29.1. Landlord and Tenant agree that the following events shall be
"Tenant Defaults" under this Lease:
29.1.1. if Tenant, or any general partner of Tenant if Tenant
is a partnership, or any one of the persons or entities constituting Tenant if
Tenant is more than one person or entity, or any guarantor or assignee or any
person primarily or secondarily liable for Tenant's obligations under this
Lease, shall be adjudicated a bankrupt or an insolvent or take the benefit of
any federal or state reorganization or composition proceeding or make a general
assignment to or for the benefit of creditors or take the benefit of any
insolvency law or
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 39
<PAGE>
29.1.2. if Tenant's interest under this Lease shall be sold
under any execution or process of law; or
29.1.3. if a trustee in bankruptcy or a receiver be appointed
or elected or had for Tenant or any general partner of Tenant if Tenant is a
partnership or any one of the persons or entities constituting Tenant if Tenant
is more than one person or entity or any guarantor or assignee or any person
primarily or secondarily liable for Tenant's obligations under this Lease and
such trustee or receiver is not dismissed within sixty (60) days; or
29.1.4. if the Premises shall be abandoned; or
29.1.5. if Tenant shall default in the payment when due of any
installment of Base Rent, Additional Rent and/or any other sum due under this
Lease and such default shall continue for a period of three (3) days after
notice by Landlord to Tenant of such default; or
29.1.6. if Tenant or any general partner of Tenant if Tenant
is a partnership, or any of the persons or entities constituting Tenant if
Tenant is more than one person or entity, or any guarantor or assignee or any
person primarily or secondarily liable for Tenant's obligations under this
Lease, shall fail to perform any of the terms, provisions, covenants or
conditions of this Lease on Tenant's part to be performed other than the
covenants for the payment of Base Rent and Additional Rent, and Tenant shall
fail to remedy such default within fifteen (15) days after notice by Landlord to
Tenant of such default, or if such notice is of such a nature that it cannot be
completely remedied within such fifteen (15) day period and Tenant shall not
commence to cure within said period and shall not thereafter diligently
prosecute to completion all steps necessary to remedy such default; or
29.1.7. if, as a result of the acts or omissions of Tenant,
its employees, agents, contractors, guests or invitees, there be any lien,
judgment, writ, assessment, charge, attachment or execution on Landlord's or
Tenant's interest in this Lease or the Premises, or the fixtures, improvements
and furnishings thereon which is not removed within twenty (20) days of the date
of Tenant receiving notice thereof.
29.2 In the event of a Tenant Default described in Subsection 29.1,
at the option of Landlord, Landlord may:
29.2.1. terminate this Lease and the Lease Term shall expire
and end; or
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 40
<PAGE>
29.2.2. terminate Tenant's right to possession only, without
termination of this Lease or the Lease Term; and/or
29.2.3. exercise any rights or use any remedies or procedures
available in law or equity, which may be cumulative with those in
Subsections 29.2.1 or 29.2.2.
29.3. In connection with any of such events described in Subsection 29.2:
29.3.1 Tenant shall be responsible for all costs, direct and
indirect, of Landlord in retaking possession of and reletting the Premises
including but not limited to attorneys' fees, brokerage charges, court costs,
advertising costs, costs of removal, storage and disposition of property, costs
of refurbishing, repairing and rebuilding the Premises and the costs of tenant
inducements in reletting ("Costs of Possession and Reletting");
29.3.2. Tenant shall immediately, upon notice from Landlord (which
may have been included in a prior notice such as that given pursuant to
Subsection 29.1.5 or 29.1.6) surrender the Premises to Landlord;
29.3.3. Landlord may reenter the Premises and remove all persons
and property without being liable for trespass, eviction, forcible detainer or
entry or damages;
29.3.4. Landlord may enforce any lien on Tenant's property and/or
may treat Tenant's property as abandoned and do with it whatever Landlord may
elect without any accounting to Tenant;
29.3.5. As an alternative to further recovery of payments of Base
Rent and Additional Rent due under this Lease, Landlord may declare due and
payable, and Tenant shall then immediately pay, all remaining Base Rent and
Additional Rent payable under this Lease during the balance of the Lease Term
calculated on projections prepared by Landlord in good faith based on past
history of increases in Additional Rent, together with all costs of Possession
and Reletting. Notwithstanding the foregoing, with respect to any portion of the
Premises that remains unleased, Landlord may obtain a judgment against Tenant
only for such sums as would become due and payable within 12 months after the
date of the judgment. Thereafter, Landlord may, on motion, obtain additional
judgments from time to time for any additional sums that would become due and
payable within 12 months after the date of any such subsequent judgment; and/or
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
----------------------
Page 41
<PAGE>
29.3.6 Landlord may relet the Premises in its own name or
otherwise, in which event:
29.3.6.1 Tenant shall be responsible and immediately
pay Landlord for any deficiency in the net amount (less Costs of Possession and
Reletting) collected by Landlord during each payment period under any such lease
below the amount, if any, which is owed by Tenant under this Lease but as yet
unpaid attributable to the equivalent payment period;
29.3.6.2. Landlord shall credit Tenant for net amounts
(less Costs of Possession and Reletting) actually, received for each payment
period under the new lease against amounts owed by Tenant under this Lease but
as yet unpaid attributable to the equivalent pay period;
29.3.6.3 If Tenant has actually paid Landlord the Base
Rent and/or Additional Rent for the equivalent pay period described in
Subsection 29.3.6.2, then the net amount actually received by Landlord for such
pay period (up to the amount paid by Tenant attributable to the equivalent pay
period) shall be credited against amounts owing by Tenant but unpaid as to other
payment periods or Costs of Possession and Reletting; if no such amounts remain,
the applicable sums collected by Landlord for the current payment period shall
be refunded to Tenant.
29.4 Landlord shall have no obligation to relet the Premises or
any part thereof and shall in no event be liable for refusal or failure to do
so, or, in the event of any such reletting, for refusal or failure to collect
any Base Rent and/or Additional Rent due upon any such reletting, and no such
failure shall operate to relieve Tenant of any liability under this Lease or
otherwise to affect any such liability. Landlord, at Landlord's option, may
make such repairs, replacement, alterations, additions, improvements,
decorations and other physical changes in and to the Premises as Landlord, in
its sole discretion, considers advisable or necessary in connection with any
such reletting or proposed reletting, without relieving Tenant of any liability
under this Lease or otherwise affecting any such liability. Landlord may relet
on any terms Landlord deems proper and may make such alterations, repairs,
replacement and/or decoration in and to the Premises as Landlord in its sole
judgment may then consider advisable. In no event will Tenant be entitled to
receive the excess, if any, of rents or other sums collected over the sums
payable by Tenant to Landlord under this Lease.
30. ADDITIONAL LANDLORD RIGHTS; LATE FEES:
-------------------------------------
30.1 If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part of be observed or
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 42
<PAGE>
performed under or by virtue of any of the terms or provisions of this Lease,
and if Tenant shall fail to commence a cure of such default within fifteen (15)
days after written notice from Landlord (except in the case of an emergency in
which event no notice to Tenant shall be required) and/or to complete such cure
with diligence and continuity, Landlord may at any time thereafter perform the
same for the account of Tenant, and if Landlord makes any expenditures or incurs
any obligations for the payment of maney in connection therewith including but
not limited to reasonable attorneys' fees and disbursements in instituting,
prosecuting or defending any action or proceeding, such sums paid or obligations
incurred with interest and costs shall be deemed to be Additional Rent and shall
be paid by Tenant to Landlord within five (5) days of rendition to Tenant of any
bill or statement therefor.
30.2. In the event Tenant fails to pay any installment of Base
Rent, Additional Rent or other sums payable under this Lease as and when such
installment or other charge is due, Tenant shall pay to Landlord on demand in
addition to such installment (a) an administrative fee of $100 to help defray
the additional cost to Landlord for processing such late payments, and (b) if
not cured within the cure period, if any, for a default, interest on the overdue
amount based on a rate equal to fifteen percent (15%) per annum or, if less, the
maximum rate permitted by applicable law, of the amount unpaid computed from the
date such payment was due and including the date of payment. The provisions for
such late charges shall be in additional to all of Landlord's other rights and
remedies under this Lease or at law or in equity and shall not be construed as
liquidated damages or as limiting Landlord's remedies in any manner.
31. TENANT CLAIMS: If at any time Tenant shall claim Landlord to be in
-------------
default or assert any defense to payment of Base Rent, Additional Rent or other
sums due under this Lease, other than the defense of complete previous payment
and the Tenant's rights under Section 20.6 of this Lease, Tenant may not
withhold any payments under this Lease but must, as a condition precedent to the
making of any such claim or defense pay all sums to Landlord without
automatically prejudicing Tenant's position. This provision is a material
inducement to Landlord to execute this Lease.
32. WAIVER OF DEFAULT: No waiver by either party of a default by the
-----------------
other party shall be implied. No express waiver by either party shall affect any
default other than the default specified in such waiver and that only for the
time and extension stated in the waiver. No waiver of any term, provision,
condition or covenant of this Lease by either party shall be deemed to imply or
constitute a further waiver by such party of any other term, provision,
condition or covenant of this Lease. Landlord's acceptance of the payment of
rental or other payments under this Lease after the occurrence of an event of
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 43
<PAGE>
default shall not be construed as a waiver of such default, unless Landlord
shall have so notified Tenant in writing. In addition to any rights and remedies
specifically granted Landlord in this Lease, Landlord shall be entitled to all
rights and remedies available at law and in equity. All rights and remedies
granted to Landlord in this Lease, by law and in equity, shall be cumulative and
not mutually exclusive.
33. LIEN ON TENANT PROPERTY: In no event shall any material or
-----------------------
equipment be incorporated in or added by Tenant to the Premises so as to become
a fixture or otherwise part of the Office Building which is subject to any lien,
charge, mortgage or other encumbrance of any kind whatsoever or is subject to
any security agreement or any form of title retention agreement.
34. RIGHT OF ENTRY: Landlord, or any of its agents, shall have the
--------------
right to enter the Premises during all reasonable hours, upon reasonable prior
notice (except in the event of an emergency) which notice need not be in
writing, (a) to show the Premises to prospective purchasers, mortgagees, lessees
(within the last 12 months of the Lease Term) or assignees of all or part of the
Office Building or any interest in it, (b) to examine the Premises or to make
such repairs, additions or alterations as may be deemed necessary for the
safety, comfort, or preservation of the Premises or the Office Building, (c) to
exhibit the Premises at any time within one hundred eighty (180) days before the
expiration of this Lease, or (d) to remove placards, signs, fixtures,
Alterations or additions which do not conform to this Lease; provided, however,
regarding subparagraphs (a) through (c) above, Landlord uses reasonable efforts
to avoid material interference with Tenants use and occupancy of the Premises.
In exercising its rights under this Section 34, Landlord shall have the right to
take all necessary materials and equipment into the Premises and to store them
within the Premises during any repairs or maintenance. Any entry and activity by
Landlord which is permitted under this Section 34 shall not entitle Tenant to
any rent abatement, shall not constitute an eviction of Tenant, and shall not in
any way violate any provision of this Lease; provided, however, regarding
subparagraphs (a) through (c) above, Landlord uses reasonable efforts to avoid
material interference with Tenants use and occupancy of the Premises. In
exercising its rights under this Section 34, Landlord shall at all times have
the right of entry by master key or, in the event of emergency if Tenant is not
present, by force, without incurring liability therefor.
35. NOTICE: Any notice given Landlord as provided for in this Lease
------
shall be in writing and sent to Landlord by prepaid, registered or certified
mail or nationally recognized overnight delivery service addressed to each of
the following: (i) McGrath & Meyers, 5725 Corporate Way, Suite 101, West Palm
Beach, Florida 33407,
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 44
<PAGE>
Attn: Gail Meyers; (ii) Peter Halmos, c/o Robert Arnold, Esq., 6400 N.W. 6th
Way, Ft. Lauderdale, Florida 33309, and (iii) Steven Halmos, New River Center,
Suite 1730, 200 E. Las Olas Blvd., Ft Lauderdale, Florida 33301, and to
Landlord's mortgages at such address as it may designate to Tenant from time to
time. Any notice to be given Tenant under the terms of this Lease, unless stated
otherwise in the Lease, shall be in writing and shall be sent by prepaid,
registered or certified mail (return receipt requested) or nationally recognized
overnight delivery service to the office of Tenant in the Office Building or
personally delivered to an agent or officer of Tenant, with a copy delivered to
Testa, Hurwitz and Thibeault, High Street Tower, 125 High Street, Boston MA
02110, Attn: Real Estate Department. All bills, statements, demands, notices,
letters, requests or other communications by Landlord may be given by Landlord's
agent or attorney, on behalf of Landlord. Either party, from time to time, by
such notice, may specify another address within the continental United States
to which subsequent notice shall be sent or delivered. Notice shall be deemed
given on the date it is actually received or on the date receipt is refused. If
Tenant or any guarantor is no longer doing business or otherwise available for
delivery of mail at the last notice address on Landlord's records, or if
registered or certified mail or overnight delivery service is refused, then
notice may be given by posting on the Premises, in which event notice shall be
deemed given at time of posting. In order for any notice by Tenant to be
effective exercise by Tenant of any right under this Lease, such notice must
identify the right which is intended to be exercised, and must specify that the
notice given is intended to be exercised.
36. ATTORNEYS' AND ACCOUNTANTS' FEES: If Tenant defaults in the
performance of any of the terms, provisions, covenants and conditions of this
Lease and by reason of such default Landlord employs the services of an attorney
or accountant to enforce performance of the covenants, or to perform any service
based upon defaults, then in any of said events Landlord shall be entitled to
reasonable attorney' fees incurred by Landlord pertaining to such matters and in
enforcement of any remedy. If Landlord defaults in the performance of any of the
terms, provisions, convenants and conditions of this Lease and by reason of such
default Tenant employs the services of an attorney or accountant to enforce
performance of the covenants, or to perform any service based upon defaults,
then in any of said events Tenant shall be entitled to reasonable attorneys'
fees incurred by Tenant pertaining to such matters and in enforcement of such
remedy. Wherever in this Lease reference is made to attorneys' fees, such fees
shall be deemed to include attorneys' fees (including paralegals' and similar
support personnel's) and accountants' fees and all expenses, disbursements and
costs (including disbursements, costs and fees relating to any appeal).
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 45
<PAGE>
37. CONDITION OF PREMISES ON TERMINATION OF LEASE AND HOLDING OVER:
--------------------------------------------------------------
37.1. Tenant shall surrender to Landlord, on the Expiration Date or
upon the earlier termination of this Lease, the Premises in as good condition as
the Premises were at the time Tenant first occupied the Office Building after
Tenant's Initial Improvements were completed, ordinary wear and tear, and damage
by fire or other casualty and eminent domain, only excepted. If Tenant does not
immediately surrender the Premises to Landlord at the end of the Lease Term,
then Tenant shall pay to Landlord 150% of the amount of monthly installment of
the Base Rent and Additional Rent paid by Tenant for the last month of the Lease
Term for each month or portion thereof that Tenant holds over plus all damages
that Landlord may suffer on account of Tenant's failure so to surrender to
Landlord possession of the Premises, and shall indemnify and save Landlord
harmless from and against all claims made by any succeeding tenant of the
Premises or broker procuring such tenant, against Landlord arising from, growing
out of or related to delay of Landlord in delivering possession of the Premises
to said succeeding tenant, so far as such delay is occasioned by failure of
Tenant so to surrender the Premises in accordance with this Lease or otherwise.
37.2. No receipt of money by Landlord from Tenant after termination
of this Lease or the service of any notice of commencement of any suit or final
judgment for possession shall reinstate, continue or extend the Lease Term or
affect any such notice, demand, suit or judgment.
37.3. No act or thing done by Landlord or its agents, including
acceptance of keys to the Premises, during the Lease Term shall be deemed and
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it be made in writing and
subscribed by a duly authorized officer or agent of Landlord.
37.4. All obligations of Tenant under this Lease not fully performed
as of the Expiration Date or earlier termination of the Lease Term shall survive
the Lease Term, including without limitation all payment obligations with
respect to taxes and insurance, all obligations concerning the condition of the
Premises, and all indemnification obligations.
38. OCCUPANCY AND PERSONAL PROPERTY TAX: Tenant shall be responsible for
-----------------------------------
and shall pay before delinquency all municipal, county or state taxes assessed
during the Lease Term against any occupancy interest or personal property of any
kind, owned by or placed in, upon or about the Premises by Tenant.
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 46
<PAGE>
39. SIGNS:
-----
Landlord shall have the right to install signs on the Office
Building and to change the Officer Building's name and street address. Subject
to the approval of applicable governmental authorities and landlord's reasonable
approval as to location size and aesthetics, Tenant shall have the right at its
sole cost and expense to place it corporate standard signature on the exterior
of the Office Building and on the monument signs at the entrances to the parking
lots. No other sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant, visible from, or on any part
of, the outside of the Premises without Landlord's prior written consent which
may, in Landlord's sole discretion, be unreasonably withheld. Tenant shall not,
except to designate Tenant's business address (and then only in a reasonably
conventional manner and without emphasis or display), use the name Cypress Creek
or any variation of it for any purpose whatsoever.
40. WAIVER OF TRIAL BY JURY: Landlord and Tenant mutually agree that
-----------------------
the respective parties to this Lease shall and do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties against the
other on any matters arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Premises. This waiver is knowingly and voluntarily given; Tenant acknowledges
that this provision is a material inducement to Landlord to enter into this
Lease. Tenant further agrees that it shall not interpose any counterclaim and
Landlord shall waive its affirmative defense arising from Tenant's failure to
assert a compulsory counterclaim) in a summary proceeding or in any action based
upon non-payment of rent or any other payment required of Tenant under this
Lease.
41. HAZARDOUS MATERIALS: Landlord represents that as of the date
-------------------
hereof it has no knowledge of any hazardous materials in the Office Building.
Landlord shall at its sole cost and expense remediate any hazardous materials in
the Office Building in violation of applicable environmental laws which (i)
exist as of the date hereof or (ii) are subsequently placed thereon by Landlord,
employees or contractors (but not by other tenants, who shall be responsible to
remediate environmental violations caused by them). Landlord shall indemnify,
defend and hold tenant harmless from any claims, liabilities, injuries, damages,
costs and expenses (including attorneys' fees) relating to Landlord's failure to
remediate hazardous materials as required pursuant to this Section 41. Landlord
and Tenant are aware that there is an underground fuel tank at the Office
Building, but Landlord has no knowledge of any violations of environmental laws
relating thereto.
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
<PAGE>
42. INVALIDITY OF PROVISION: If any term, provision, covenant or
-----------------------
condition of this Lease or the application of it to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this Lease
or the application of such term, provision, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each other provision, covenant or condition of
this Lease shall be valid and enforceable to the fullest extent permitted by
law. This Lease shall be construed in accordance with the laws of the State of
Florida, excluding its conflict of law principles. The venue for any lawsuit
arising out of this Lease shall be Broward County, Florida.
43. MISCELLANEOUS:
-------------
43.1 The terms "Landlord" and "Tenant" as contained in this Lease
shall include singular and plural, masculine, feminine and neuter, heirs,
successors, executors, administrators, personal representatives and assigns,
wherever the context so requires or admits. The terms, provisions, covenants
and conditions of this Lease are expressed in the total language of this Lease
Agreement. The section headings are inserted solely for the convenience of the
reader and shall not be deemed to limit or expand any of the provisions of this
Lease. Any reference to exhibits, schedules or riders to this Lease refers to
those exhibits, schedules, riders or other documents attached to this Lease,
which are incorporated in and made a part of this Lease. Any formally executed
addendum to or modification of this Lease, including modifications described in
Section 25, shall be expressly deemed incorporated in this Lease by reference
unless a contrary intention is clearly stated in such addendum or modification.
43.2 Nothing in this Lease shall prevent Landlord from selling,
transferring or conveying or in any way affect Landlord's right to sell,
transfer or convey, to one or more parties all or any part of the Office
Building, or in any underlying lease. If any such sale, transfer or conveyance
includes the Premises, Tenant shall pay all rents and other amounts due under
this Lease to the party acquiring such interest upon receipt of notice from
Landlord of such sale, transfer or conveyance. If Landlord's interest in the
Office Building, the Premises or this Lease is sold or transferred, the seller
or transferor shall be automatically and entirely released of and from all
covenants and obligations under this Lease arising or accruing from and after
the date of such conveyance or transfer, provided the purchaser or transferee
has assumed and agreed to carry out all covenants and obligations of Landlord
under this Lease arising or accruing after the date of the transfer, it being
intended that the covenants and obligation contained in this Lease to be
performed on the part of the Landlord shall be binding upon Landlord, its
successors and assigns, only with respect to matters arising during their
respective successive periods of ownership. Tenant shall neither assert nor seek
to enforce
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 48
<PAGE>
any claim for breach of this Lease against any of Landlord's other assets other
than Landlord's interest in the Office Building and in the uncollected rents,
issues and profits thereof, and Tenant agrees to look solely to such interest
for the satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall Landlord (or any of the officers,
trustees, directors, partners, beneficiaries, joint venturers, members,
stockholders or other principals or representatives, and the like, disclosed or
undisclosed, thereof) ever be personally liable for any such liability. This
subsection shall not limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or to take any other action which shall not
involve the personal liability of Landlord to respond in monetary damages from
Landlord's assets other than Landlord's interest in said property, as aforesaid.
In no event shall Landlord (or any of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives and the like, disclosed or undisclosed, thereof)
ever be liable for incidental or consequential damages.
43.3. Whenever in this Lease Tenant has agreed to indemnify, protect,
defend or hold harmless Landlord for any matter or from anything, whatsoever,
or to release Landlord from any liability under this Lease, the term "Landlord"
shall also be deemed to include Landlord's beneficiaries, its agents, servants
and employees.
43.4. No payment by Tenant or receipt of payment by Landlord of an
amount less than the full amount then due Landlord under this Lease shall be
construed as anything other than a partial payment of such sum then due and
owing. No endorsement or statement on any check or letter or any form of
payment or accompanying document shall be deemed to be an accord and
satisfaction or other form of settlement; Landlord may accept any such payment
without prejudice to its rights to recover the balance of sums due and owing
under this Lease or to pursue any other remedy permitted under this Lease.
43.5. In those instances in this Lease where a specific time period is
given for Landlord's performance, and in which notice is waived or in which a
time period is stated which includes a provision for notice from Tenant and
opportunity to cure, such provisions shall apply. In all other instances in
which Landlord may be in default under this Lease, Landlord shall not be deemed
in default unless Tenant has given Landlord notice and fifteen (15) days'
opportunity to cure Landlord's breach (or, if such breach is not susceptible of
cure in such time, Landlord shall begin such cure within such fifteen (15) day
period and diligently and continuously pursue it to substantial completion).
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 49
<PAGE>
43.6. Tenant shall furnish Landlord, within five (5) business days
after Landlord's request therefor, an updated, current 10-K and annual report.
44. (INTENTIONALLY DELETED)
-----------------------
45. RADON GAS NOTICE: Pursuant to Florida Statutes Section 404.056(8),
----------------
Landlord hereby makes, and Tenant hereby acknowledges, the following
notification:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
46. (INTENTIONALLY DELETED)
-----------------------
47. ENTIRE AGREEMENT: This Lease contains the entire agreement between the
----------------
parties to this Lease and all previous negotiations are merged in this Lease.
This Lease may be modified only by an agreement in writing signed and sealed by
Landlord and Tenant. Tenant acknowledges and agrees that Tenant has not relied
upon any statement, representation, prior written or contemporaneous oral
promises, agreements or warranties except such as are expressed in this Lease.
The parties acknowledge that both are sophisticated and knowledgeable in the
subject matter of this Lease, both are represented by counsel, and both have
contributed substantially to the content of this Lease. No surrender of the
Premises, or of the remainder of the Lease Term, shall be valid unless accepted
by Landlord in writing. This Lease shall not be more strictly construed against
either party to it by reason of one party's preparing all or a portion of it.
48. BROKERAGE: Landlord and Tenant each represents and warrants to the
---------
other that it has dealt with no broker, agent, salesperson, finder or other
person in connection with this transaction and that no broker, agent or other
person brought about this transaction, other than the Broker listed in
Subsection 1.2. Landlord and Tenant each agrees to indemnify and hold to the
other harmless from and against any claims by any other broker, agent,
salesperson, finder or other person claiming a commission or other form of
compensation by virtue of having dealt with Landlord or Tenant, respectively,
with regard to this leasing transaction, Landlord shall pay all commissions
payable or due to the Broker. The provisions of this Section 48 shall survive
the termination of this Lease.
49. FORCE MAJEURE: Neither Landlord nor Tenant shall be required to perform
any term, condition, or covenant in this Lease so
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 50
<PAGE>
long as such performance is delayed or prevented by "Force Majeure", which shall
mean labor controversies, strikes and lockouts (whether lawful or not) either
industry-wide or with third parties other than Landlord and Tenant,
respectively, acts of God, material or labor unavailability, inability to obtain
fuel or power, catastrophes, national or local emergencies, restrictions by any
governmental authority, civil riots, floods, and any other causes not reasonably
within the control of Landlord or Tenant and which by the exercise of due
diligence Landlord or Tenant, respectively, is unable, wholly or in part, to
prevent or overcome. Lack of money shall not be deemed Force Majeure.
50. SHORT FORM LEASE: Upon request by Landlord or Tenant, Landlord
----------------
and Tenant shall execute a short form lease in recordable form setting forth the
name of the parties, the Lease Term, a summary of the provisions of this Lease,
and the description of the Premises sufficient to provide record notice of this
Lease, which short form lease may be recorded. Tenant shall not record this
Lease.
51. RELATIONSHIP OF PARTIES: Nothing contained in this Lease or any
-----------------------
act of Landlord or Tenant shall be deemed or construed by Landlord, Tenant or
any third party to create the relationship of principal and agent, partnership,
joint venture or any association whatsoever between Landlord and Tenant, other
than the relationship of landlord and tenant.
52. DELIVERY OF LEASE INSTRUMENT: Submission of this Lease for
----------------------------
examination does not constitute an offer, right of first refusal, reservation of
or option for the Premises or any other space or premises in, on or about the
Office Building. This Lease becomes effective as a lease only upon execution and
delivery by both Landlord and Tenant. If Tenant is a corporation, then Tenant
and the individual executing this Lease on behalf of Tenant personally
represents and warrants to Landlord that (a) the execution and delivery of this
Lease has been duly authorized by the Board of Directors of Tenant and (b)
either (i) the making of this Lease does not require any vote or consent of
shareholders or (ii) all required votes or consent shave been duly taken or
obtained and Tenant shall deliver to Landlord within 30 days from the date
hereof a certificate from Tenant's corporate secretary certifying the foregoing
matters. The individual executing this Lease on behalf of Landlord personally
represents and warrants to Tenant that (a) he/she is a partner in the
partnership that constitutes Landlord, (b) the execution and delivery of this
Lease is within the powers and authority of the party doing so on behalf of
Landlord and (c) either (i) the making of this Lease does not require any vote
or consent of all of such partners, or (ii) all required votes or consents have
been duly taken and obtained.
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 51
<PAGE>
53. OPTION TO EXTEND:
----------------
53.1 Tenant shall have the right, at its option, to extend the
Lease Term for three periods of five years each (each is referred to as an
"Extension Term"); provided and upon the condition that from the time of the
exercise of such option through the end of the then current Lease Term or
Extension Term, this Lease shall be in full force and effect and a Tenant
Default shall not occur and continue after notice and the expiration of the
applicable grace period. The first Extension Term shall commence on the day
after the Expiration Date and shall expire five years thereafter unless the
first Extension Term shall sooner end pursuant to any of the terms, covenants or
conditions of this Lease or pursuant to law. The second Extension Term shall
commence on the day after the First Extension Expiration Date and shall expire
five years thereafter unless the second Extension Term shall sooner end pursuant
to any of the terms, covenants or conditions of this Lease or pursuant to law.
The third Extension Term shall commence on the day after the Second Extension
Expiration Date and shall expire 5 years thereafter unless the third Extension
Term shall sooner end pursuant to any of the terms, covenants or conditions of
this Lease or pursuant to law. Tenant shall give Landlord written notice of
Tenant's intention to exercise each such option on or before the end of the
seventh (7th) month prior to the Expiration Date (or First Extension Expiration
Date or Second Extension Expiration Date, as applicable), the time of exercise
being of the essence. All of the terms, covenants and conditions of this Lease
shall continue in full force and effect during each Extension Term, except for
increases in Base Rent as provided in Section 1.1. Base Rent during the
Extension Terms shall be as determined in accordance with Subsection 1.1 and
this Section 53.
53.2 For the purposes of this Lease, the "Fair Market Rent: shall
mean the fair market annual rental rate in effect as of the commencement of the
applicable Extension Term for leases of premises comparable to the Premises in
the Cypress Creek submarket, for a term of five years, and on such other terms
and conditions as are set forth in this Lease.
53.3 By notice delivered to Landlord, no earlier than twelve
months before the commencement of each Extension Term, as the case may be,
Tenant may request that Landlord notify Tenant in writing of Landlord's
determination of the Fair Market Rent for such Extension Term. Within 30 days
after such request, Landlord shall notify Tenant in writing of the Fair Market
Rent for such Extension Term, as calculated by Landlord ("Landlord's Estimate").
Tenant shall have a period of fifteen days following Tenant's receipt of
Landlord's Estimate in which to accept or reject Landlord's Estimate or to reach
an agreement with Landlord for a different Fair Market Rent. If Landlord and
Tenant are unable to agree to a Fair Market Rent within
Tenant: [Initials appear here]
----------------------
[Initials appear here]
Landlord: ----------------------
Page 52
<PAGE>
such fifteen-day period, Tenant may demand arbitration of the Fair Market Rent
for such Extension Term by delivering to Landlord written notice (an
"Arbitration Notice") within 30 days after Tenant's receipt of Landlord's
Estimate, which Arbitration Notice shall set forth the Fair Market Rent, as
calculated by Tenant, and shall designate a person to act as an arbitrator of
the Fair Market Rent. If Tenant fails to deliver to Landlord an Arbitration
Notice within such 30 day period, the Fair Market Rent set forth in Landlord's
Estimate shall be deemed to be the correct calculation of Fair Market Rent for
such Extension Term. Within seven days after receiving an Arbitration Notice,
Landlord shall, by written notice to Tenant, appoint a second arbitrator. If
Landlord fails to appoint a second arbitrator within such seven-day period, the
Fair Market Rent set forth in the Arbitration Notice shall be deemed to be the
correct calculation of the Fair Market Rent for such Extension Term.
53.4 Within seven days after the designation of the second
arbitrator by Landlord, the two arbitrators together shall appoint a third
arbitrator (the "Arbitrator"). Within seven days after the designation of the
Arbitrator, Landlord and Tenant shall submit their respective positions with
respect to the calculation of Fair Market Rent to the Arbitrator. The Arbitrator
shall conduct such hearings and investigations as he or she deems appropriate.
Within fifteen days after the designation of the Arbitrator, the Arbitrator
shall determine the Fair Market Rent for such Extension Term. The Fair Market
Rent, as determined by the Arbitrator, shall be binding upon Landlord and Tenant
the applicable to the first thirty (30) months of the applicable Extension Term
and subject to the 10% increase thereafter as provided in Section 1.1.
53.5 All arbitrators under this Section 53 shall be Members of
the Appraisal Institute and shall have at least ten years of experience in the
appraisal of commercial real estate in the suburban Fort Lauderdale area.
Landlord and Tenant shall each be responsible for the costs of the arbitrator
which they appoint and shall share equally the cost of the Arbitrator.
53.6 The provisions of this Section 53 are personal to the named
Tenant and Tenant Affiliates and shall not be available to any other person or
entity including, without limitation, Tenant's permitted assignees, successors
or sublessees (other than Tenant Affiliates).
54. DELIVERY OF PREMISES:
--------------------
54.1. Landlord shall deliver the Initial Premises to Tenant
within two (2) business days from the date hereof. Landlord shall deliver the
First Expansion Space to Tenant on the day which is the earlier of one year from
the Commencement Date or 30 days after
Tenant:[Initials appear here]
----------------------
Landlord:[Initials appear here]
----------------------
Page 53
<PAGE>
Tenant furnishes notice to Landlord requesting such space. Landlord shall
deliver the Second Expansion Space to Tenant on the day which is the earlier of
2 years from the Commencement Date or 30 days after Tenant furnishes notice to
Landlord requesting such space. The third floor is conclusively deemed to
contain 23,506 rentable square feet. The First Expansion Space and Second
Expansion Space are shown on Exhibit "C" annexed hereto. Landlord shall deliver
the Initial Premises, the First Expansion Space and the Second Expansion Space
to Tenant free of other tenants and occupants, in broom clean condition and free
of personal property not owned by Tenant, and otherwise in such condition as
exists as of the date of this Lease.
54.2. Provided a Tenant Default has not occurred which continues
after notice and the expiration of the applicable grace period under Section
29.1 of this Lease, Tenant may, on 30 days' written notice to Landlord, elect to
lease the Dining Room. If Tenant so elects, Landlord shall deliver to Tenant,
within thirty (30) days of receiving such notice from Tenant, the Dining Room,
free of Tenants and occupants other than Tenant, in broom clean condition and
free of personal property not owned by Tenant, and otherwise in such condition
as exists as of the date of this Lease. The Dining Room is conclusively deemed
to consist of 1,133 rentable square feet. Tenant will be obligated to pay
Tenant's Proportionate Share of Operating Expenses with regard to the Dining
Room from the date such space is added to the Premises, but the Base Rent for
such space will not commence until the First Expansion Rent Commencement Date.
55. RIGHT OF FIRST REFUSAL:
----------------------
55.1 Provided a Tenant Default has not occurred which continues
after notice and the expiration of the applicable grace period under Section
29.1 of this Lease, Tenant shall have a right of first refusal in the event
Landlord decides to sell the Office Building to an unrelated third party. This
right of first refusal shall not apply to any transfer or sale of the Office
Building to any related or affiliated person or entity controlling, controlled
by or under common control with Landlord. In the event Landlord receives a
written offer (including a letter of intent) to purchase the Office Building,
Landlord shall forward same to Tenant, and Tenant shall have 15 days to exercise
its right of first refusal to purchase the Office Building on the same terms and
conditions as are set forth in the written offer. If Tenant elects to exercise
its right of first refusal, it shall, within said 15 day period, furnish
Landlord written notification of Tenant's election to exercise its right of
first refusal to purchase the Office Building on the same terms and conditions
as are set forth in the third party offer, and Tenant shall, within ten business
days of receipt from Landlord, execute a contract of purchase and sale furnished
by Landlord encompassing the terms and provisions in the third party offer
accompanied by any earnest money deposit set forth in
Tenant: [Initials appear here]
-------------------------
Landlord: [Initials appear here]
-------------------------
Page 54
<PAGE>
the third party, offer or, if the deposit is not set forth in the third party
offer, a deposit, equal to 10% of the purchase price. Closing shall occur as
provided in the third party offer and, if no time frame for closing is provided
in the third party offer, closing shall occur 60 days after Tenant's execution
of the contract of purchase and sale. Tenant's right of first refusal shall be
one time only and, if Tenant shall fail to exercise its right of first refusal
the first time, such right of first refusal shall be terminated, null and void
and of no force and effect regardless of whether or not Landlord sells the
Office Building pursuant to such offer, and Tenant shall not have any right of
first refusal with respect to any subsequent offers to purchase the Office
Building. If Tenant fails to exercise such right of first refusal in a proper
and timely manner Landlord shall be free to sell the Office Building according
to a contract of purchase and sale with such purchaser which may include terms
and conditions that are not materially inconsistent with, or more favorable
than, the terms and conditions of such offer.
LANDLORD and TENANT have signed, sealed and delivered this Lease in
multiple counterparts, all of which constitute but one Lease, as of the day and
year first above written.
TENANT:
WITNESSES: CITRIX SYSTEMS, INC.
/s/ James LaRock By:
- ------------------------------ ------------------------------
/s/ Marc-Andre Boisseau
- ------------------------------ [CORPORATE SEAL]
LANDLORD:
HALMOS TRADING AND INVESTMENT
COMPANY
/s/ Robert S. Arnold By: PAH Corp
- ------------------------------ -------------------------,Florida
/s/ Carolyn S. Peuser corporation
- ------------------------------
By: Peter A. Halmos, President
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 55
<PAGE>
EXHIBIT "A"
DINING ROOM
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 56
<PAGE>
EXHIBIT "B"
DESCRIPTION OF REAL PROPERTY
Tenant: [Initials appear here]
------------------------
Landlord: [Initials appear here]
------------------------
Page 57
<PAGE>
EXHIBIT "C"
LOCATION OF PREMISES
CORPORATE PARK AT CYPRESS CREEK
PLAT BOOK 108, PAGE 11
LOTS 26, 27, 28 AND 29
BROWARD COUNTY, FLORIDA
Tenant: [Initials appear here]
----------------------
Landlord: [Initials appear here]
----------------------
Page 58
<PAGE>
EXHIBIT "A"
Dining Room
Third Floor
[LAYOUT]
<PAGE>
EXHIBIT "B"
Description of Real Property
Lots 26, 27, 28 and 29, of CORPORATE PARK AT CYPRESS CREEK, according to the
Plat thereof, as recorded in Plat Book 108, at Page 11, of the Public Records of
Broward County, Florida.
<PAGE>
EXHIBIT "C"
Location of Premises
"Initial Premises"
Entire First Floor
[LAYOUT]
Entire Second Floor
[LAYOUT]
<PAGE>
EXHIBIT "C" (Continued)
Location of Premises
"First Expansion Space"
Third Floor
[LAYOUT]
<PAGE>
EXHIBIT "C" (Continued)
Location of Premises
"Second Expansion Space"
Third Floor
[LAYOUT DRAWING OF "SECOND EXPANSION SPACE" APPEARS HERE]
