Exhibit 10.7
LEASE TO BUILD AGREEMENT
THIS LEASE AGREEMENT made and entered into this _28th_ day of
December, _1978_, by and between TAMPA WEST INDUSTRIAL PARK, INC., a Florida
corporation, whose business address is Xxxx Xxxxxx Xxx 00000, Xxxxx, Xxxxxxx
00000, (hereinafter referred to as "LANDLORD" or "LESSOR"), and REFLECTONE,
INC., a Delaware corporation, with its principal place of business at 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, (hereinafter referred to as
"TENANT" or "LESSEE").
W I T N E S S E T H :
That LESSOR, in consideration of the rents and covenants,
hereinafter stipulated to be paid and performed by LESSEE, does hereby grant,
demise and lease unto LESSEE, and LESSEE hereby leases from LESSOR the
property described in Exhibit "A" attached hereto and made a part hereof
(hereinafter referred to as "Premises"). LESSOR and LESSEE have initialed and
approved (or shall initial and approve) plans and specifications for the
improvements to be provided by LESSOR hereunder.
l. BUILDING: The LESSOR agrees, at its sole cost and expense, to
cause to be constructed upon the real estate described in Exhibit "A"
facilities in accordance with building plans and specifications which shall be
approved and initialed by LESSOR and LESSEE and made a part hereof. The land
and building shall include an area of 8.0215 acres (531 feet by 600+ feet and
110 feet by 300 feet), more or less, with a modern, high quality building
containing 110,000 square feet as follows: (a) 30,000 square feet hi-bay (30
foot ceiling clear under the steel, 50 foot candle lighting level; painted
walls with one 16 x 16 overhead door), (b) 40,000 square feet, light
manufacturing area (24 foot ceiling; 60 foot candle lighting level; painted
walls; one 12 x 14 overhead door), (c) 40,000 square feet office area with
20,000 square feet on first floor, 20,000 square feet mezzanine, (drop
ceiling, 75 foot candle level, wall to wall carpeting, painted walls); total
air conditioning and heating throughout the building; parking for a minimum of
300 cars on lot that is paved and lined (more parking spaces will be provided
if required to meet applicable ordinances or code); the building shall contain
a twenty (20) year bondable roof (option by tenant to obtain the bond).
Landscaping in accordance with plans and specifications shall be
provided by LESSOR, but maintained from the Commencement Date by LESSEE.
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The construction of the improvements herein contemplated shall be
substantially completed and ready for possession by LESSEE on or before May
15, 1979. If said building is not substantially completed by May 15, 1979, a
downward adjustment in rent from $2,475,000.00 to $2,420,000.00, for the first
ten (10) years of the lease term shall be made. If said improvements are not
substantially completed by June 15, 1979, LESSEE at its option may cancel said
lease and all sums paid on account shall be returned to LESSEE. Provided
however, the completion dates set forth herein shall be extended for any
delays caused by strikes, labor disputes, riots, acts of God, acts of civil or
military authorities, fires, floods, epidemics, war, delays in transportation,
theft or vandalism or inability to obtain, or delay in obtaining, suitable
labor, material, facilities or services required for this agreement, all
beyond the reasonable control of LESSOR. The completion date as set forth
herein is conditioned upon LESSOR submitting plans and specifications to
LESSEE within twenty-one (21) days from the date hereof, and the LESSEE
approving and redelivering said plans and specifications to LESSOR (or as same
may be modified by mutual agreement) no later than five (5) working days after
receipt of said plans and specifications from LESSOR.
2. TERM: The lease term shall be for a period of twenty (20)
years (plus the partial month, if any, immediately following the commencement
date) beginning on the date of substantial completion and either possession by
LESSEE or issuance of the Certificate of Occupancy, ("Commencement Date") and
expiring at midnight on the twentieth anniversary of the last day of the month
in which the lease commenced. LESSOR and LESSEE agree to execute a
certificate indicating the Commencement Date of the lease when same has
occurred. Thereafter, and provided the LESSEE is not then in default under
any provision hereof, the LESSEE shall have the option to renew this lease
agreement for four (4) successive five (5) year periods, provided LESSEE shall
have given written notice of his intention to LESSOR six (6) months prior to
the termination date of the original lease period and six (6) months prior to
the termination of any renewal period. Each five (5) year term shall be
renewed under the same terms and conditions as set forth herein, except as to
the rental amount set forth herein. For purposes of adjusting the rental
payment for renewal periods, the basic rental amount shall be $2.75 per square
foot per annum and same shall be increased to reflect the increase, if any, in
the cost of living by adding to the Basic Rental an amount obtained by
multiplying the Basic Rental by the percentage by which the level of the "New
CPI for all Urban Consumers" as reported for the last day of the month
preceding the first optional extension period has increased over its level as
of the tenth (10th) anniversary of this Lease. The rental as thus adjusted
shall be payable monthly in advance over the first five (5) year optional
extension period. The same terms and manner of computing the rent shall be
utilized for each successive five (5) year option extension period by
adjusting the rental for each successive five (5) year extension period by the
New CPI percentage increase between the beginning and the end of the
immediately previous five (5) year extension period. In no event shall the
adjusted rent for an option extension period be less than the immediately pre-
ceding rental set forth herein. The "New CPI for all Urban Consumer" referred
to herein is the index published by the U. S. Department of Labor Bureau of
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Labor Statistics. In the event that said index is abandoned or its use
discontinued, then the parties agree to permit the rental increase to be
determined by another generally accepted standard of living index. The amount
of any rental increase above the immediately preceding rental term for any
renewal period shall be limited to no more than 30% over the rental for the
immediately preceding term.
LESSEE shall occupy the Premises only for lawful purposes.
LESSEE covenants and agrees to pay as rent for said subject
Premises the sum of $2,475,000.00 for the first ten (10) years; $1,375,000.00
for the next succeeding five (5) years of said lease agreement, and
$1,512,500.00 for the next succeeding five (5) years of said lease term, with
said rental plus the Florida State Sales Tax being payable in monthly
installments in advance. Said rental shall be payable on the first day of
each month in advance during the term, except that upon execution of the lease
agreement, LESSEE shall pay LESSOR the first two months' rental and the last
month's rental of the initial lease term, plus Florida State Sales Tax and no
additional rental shall be due for said months. Said rental shall be payable
to TAMPA WEST INDUSTRIAL PARK, INC., Xxxx Xxxxxx Xxx 00000, Xxxxx, Xxxxxxx
00000, or such other place as may be designated in writing by the LESSOR.
It is the understanding and agreement of the parties hereto that
this Lease Agreement is a clear net-net lease obligation wherein the LESSEE
shall be responsible to bear all expenses and make all payments as set out
herein. Provided, however, that LESSEE shall not be responsible for the cost
of any repairs to the improvements to be constructed upon the demised Premises
resulting from damage caused by structural defects. In connection with this
paragraph, LESSEE shall have the same right as the LESSOR under all guaranties
and warranties of the building contractors or suppliers of materials and
equipment installed in the building by the LESSOR or the building contractor.
3. EARLY ENTRY: Upon reasonable notice to LESSOR, LESSEE shall
have the right from time to time to enter the premises prior to the
Commencement Date in order to equip and prepare the premises for occupancy.
This right is conditioned upon LESSEE causing no interference or delay in the
construction work or damage to the Premises.
4. NOTICE: Whenever this Lease requires that notice or demand
shall be given or served on either party to this Lease, such notice or demand
shall be in writing and shall be delivered personally or forwarded by
certified or registered mail, evidenced by a U. S. Postal mailing receipt,
addressed as follows:
LESSOR: TAMPA WEST INDUSTRIAL PARK, INC.
Xxxx Xxxxxx Xxx 00000
Xxxxx, Xxxxxxx 00000
LESSEE: REFLECTONE, INC.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
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5. REPAIRS AND MAINTENANCE: LESSEE shall, at its own expense,
keep and maintain the interior of the building, including painting the doors,
and keeping all mechanical equipment in good condition and repair, so as to
tender it to LESSOR at Lease termination, broom clean and in the same
condition as received, ordinary wear and tear, damage by fire or other
casualty and the elements or acts of God excepted.
LESSOR shall, at its own expense, keep and maintain the structural
and exterior (excluding cosmetics, painting or hairline cracks which are not
structural or cracks which are caused by LESSEE's negligence) portions of the
building except LESSOR SHALL HAVE NO RESPONSIBILITY WHATSOEVER FOR MAINTENANCE
OF ROOF DRAINS. LESSOR shall, at or before Commencement Date or as soon
thereafter as possible (LESSOR using best efforts) assign to LESSEE all
equipment warranties and guaranties received by it with respect to the
improvements. LESSOR shall cause the plumbing, heating, electric and roofing
subcontractors to guarantee their work for a minimum of one (1) year, or such
longer period as may be customary, to the extent LESSOR is able to obtain
same, after using its best efforts, from said subcontractors and shall deliver
said guaranties to LESSEE at or before the Commencement Date, or as soon
thereafter as possible (LESSOR using best efforts).
LESSOR warrants the original building, equipment and paved areas
to be free from defects in labor, material or design for a period of one year
from the Commencement Date of the Lease. During said period, LESSOR shall
repair, replace or otherwise correct any such defects or deficiencies promptly
upon receipt of written notice from LESSEE. Said written notice must be
received On or before the expiration of said one year period. If notice is
timely, LESSOR shall have the continuing responsibility to remedy said defect.
LESSEE, following said first year, shall, at its own expense, make all repairs
to and provide for the maintenance of the heating plant, air conditioning or
air cooling units, plumbing and all other fixtures on the leased Premises.
6. IMPROVEMENTS BY LESSEE: LESSEE shall have the right at his
own expense to make reasonable structural alterations or additions to the
leased Premises having first obtained LESSOR's written approval which shall
not be unreasonable withheld. However, LESSEE, without approval, may make
nonstructural and interior office alterations and improvements, if such
alterations and improvements are minor changes which do not damage, reduce the
value of, nor impair the structural strength of the building. THE LESSEE
SHALL, UNDER NO CONDITIONS, HAVE THE POWER OR AUTHORITY TO SUBJECT, AND IS
EXPRESSLY PROHIBITED FROM SUBJECTING THE PREMISES TO ANY LIEN, CHARGE OR
ENCUMBRANCES WHATSOEVER, AND SHALL indemnify, defend, and save harmless the
LESSOR against all liens, charges or encumbrances that may be asserted against
the subject premises the result of LESSEE's action.
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LESSEE shall have the option for a period of thirty (30) months
from the Commencement Date of this Lease Agreement to have constructed by
LESSOR additional facilities on the property adjacent to the east boundary of
the Premises under a Lease Agreement containing the same terms and conditions
of this Lease Agreement except the rental which shall be negotiated between
the parties to reflect the additional land and improvements; said additional
property when combined with the existing 8.0215 acres, more or less, shall
aggregate 11 acres, more or less. Said option must be exercised within said
thirty (30) month time period.
Trade fixtures and office improvements placed or installed upon or
within the leased Premises by LESSEE shall remain the personal property of
LESSEE and may be removed upon termination of the Lease agreement, provided
LESSEE satisfactorily repairs any damage resulting from said removal.
Upon termination of this Lease, LESSEE shall restore the leased
Premises to LESSOR in the same condition as when LESSEE received the same,
excepting structural improvements made by LESSEE with the written approval of
LESSOR, repairs which are the responsibility of LESSOR, ordinary wear and
tear, damage by fire or other casualty covered by insurance or the elements or
acts of God excepted.
7. INSPECTION: Subject to any applicable governmental security
regulations, LESSOR shall have the right of access to the leased Premises at
reasonable times, and upon reasonable notice, for the purpose of examination
and inspection, making repairs, alterations or improvements to the extent
permitted or required herein, or exercising any of the rights of the LESSOR
under this Lease provided, however, that LESSOR shall not interfere with the
conduct of business operations by LESSEE.
8. UTILITIES: LESSEE shall pay all use charges and expenses for
electricity, water, sewerage, heat, gas, power, steam, and all other services
used or consumed by it in connection with the maintenance and operation of the
leased Premises or LESSEE's business.
9. SIGNS: LESSEE may attach to the building on the leased
Premises signs of reasonable size displaying LESSEE's name and business,
provided any said signs shall fully comply with the ordinances of Hillsborough
County, Florida.
10. PLATE GLASS: LESSEE shall, at its own cost and expense,
replace any plate glass which may be broken during the term of this Lease.
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ll. FIRE OR OTHER CASUALTY: If the leased premises are damaged
by fire or otherwise to such extent so as to interfere with their use by
LESSEE, the rent payable hereunder for the period commencing on the date on
which LESSEE gives LESSOR written notice of such damage, and ending on the
date on which restoration of the leased premises is completed, shall be abated
in the proportion which the floor space made unusable bears to the floor space
usable to LESSEE prior to such damage. In the event of the total destruction
of the leased Premises or destruction such that LESSEE's ability to use the
Premises are substantially impaired, then LESSOR shall have the right to
render said Premises tenantable by repairs within ninety (90) days from the
date notice of the damage is received by LESSOR. If said Premises are not
rendered tenantable within said period, it shall be optional with either party
hereto to cancel this Lease, and in the event of such cancellation, rent shall
be paid only to the day of such fire or casualty.
12. CONDEMNATION: If the entire leased Premises are taken by
eminent domain, or so much thereof as to render the balance inadequate for the
operation of LESSEE's business, then in such event, this Lease shall
terminate.
In the event of any taking under the power of eminent domain which
does not terminate this Lease as aforesaid, the rent payable by LESSEE
hereunder shall be abated, commencing on the date on which possession is taken
by the condemning authority, in the proportion which the floor space or land
space so taken or made unusable bears to the floor space or land space, as the
case may be, usable to LESSEE prior to such taking.
If the taking is of unpaved and unimproved land only and such
taking shall not interfere substantially with the use of the balance of the
leased Premises by LESSEE, there shall be no abatement of rent.
In the event of any taking under the power of eminent domain which
does not terminate this Lease as provided herein, LESSOR shall promptly at its
own cost and expense, restore the balance of the leased Premises to as near
their former condition as circumstances shall reasonably permit.
All damages awarded for any taking of all or any part of the
improvements owned by LESSOR under the power of eminent domain shall belong to
LESSOR except LESSEE shall be entitled to any proceeds from the enforcement
and prosecution in any condemnation proceedings of any claims it may have as
provided for under the laws and statutes of the State of Florida.
13. QUIET POSSESSION: LESSOR warrants that LESSEE, on paying the
rent installments and on keeping, observing and performing all other terms,
conditions, and provisions herein contained on the part of LESSEE to be kept,
observed and performed shall, during the full lease term, peaceably and
quietly have, hold and enjoy the leased Premises for the full term of this
Lease, subject to the terms, conditions and provisions hereof.
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14. DEFAULT: If one or more of the following shall occur:
(a) LESSEE shall fail to make payment of rent
or any other sum due and owing by LESSEE
to LESSOR for a period of twelve (12) days
from the date same shall become due and
LESSEE has received three (3) days'
notice.
(b) LESSEE shall make an assignment for the
benefit of creditors;
(c) LESSEE shall file a petition or answer
seeking reorganization or arrangement
under any of the laws of the United States
relating to bankruptcy or any other
applicable State;
(d) An attachment or execution shall be levied
upon LESSEE's property or interest under
this Lease, and shall not be satisfied,
bonded or released within sixty (60) days
thereafter:
(e) A petition in bankruptcy shall be filed by
or against LESSEE, or a receiver or
trustee for all or any part of the
property of LESSEE shall be appointed by
any Court, and such petition shall not be
withdrawn, dismissed, or discharged, or
such receiver or trustee removed, within
thirty (30) days from the filing or
appointment thereof;
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(f) Default shall be made in the performance
or observance of any other covenant,
agreement, obligation, provision, or
condition to be kept or performed by
LESSEE under the provisions of this Lease
and such default shall continue for thirty
(30) days after written notice thereof
given by LESSOR to LESSEE:
then and in any of such events LESSOR may, at its option, enter the leased
Premises and again have, repossess and enjoy the same as if the Lease had not
been made, and thereupon this Lease. and everything herein contained on the
part of LESSOR to be done and performed shall cease, terminate and be utterly
void without prejudice, however, to the right of LESSOR to recover from LESSEE
all rent due up to the time of entry. In case of such default and entry by
LESSOR, LESSOR may relet said Premises for the remainder of said term and
shall be solely entitled to the proceeds thereof.
In the event the LESSOR refuses or neglects to do any of the
things specified to be done by LESSOR under the terms of this Lease, then
LESSEE may, but is not obligated to, upon LESSOR's failure to cure such
default within thirty (30) days after receipt of written notice from LESSEE
which specified the particular default complained of, make such payment or do
or cause to be done such things at LESSOR's expense. All money properly
advanced or expended by LESSEE in connection with the aforesaid matters shall
be charged against the rents accruing under the Lease and shall have the same
effect as though the amount thereof had been paid as rent to LESSOR.
The various rights and remedies given to or reserved to LESSOR
and/or LESSEE by this Lease, or allowed by law, shall be cumulative, and no
delay or omission to exercise any of their rights shall be constructed as a
waiver of any continuing or subsequent breach of the same provision.
15. SUBORDINATION: LESSEE shall, upon LESSOR's request, execute
any instrument or instruments permitting a mortgage to be placed on the leased
Premises or any part thereof provided; however, as a condition to any
subordination instrument being executed by LESSEE, LESSOR shall cause any
mortgagee under such a mortgage to acknowledge an agreement with LESSEE, in
recordable form, which will provide that so long as LESSEE pays the rents due
under this Lease and is not otherwise in default hereunder, the holder of such
mortgage will not disturb possession of LESSEE.
16. INDEMNIFICATION: Each party hereto shall indemnify the other
and hold it harmless from and against any direct damage suffered or liability
incurred, including reasonable attorney's fees, on account of bodily injury to
any person or persons and damage to property on or about the leased Premises
during the term of this Lease occasioned by the negligent act or omission, or
breach of any covenant contained herein by the indemnifying party, its
officers, agents, invitees or servants.
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17. WAIVER OF RIGHT OF SUBROGATION: Inasmuch as such agreement is
permitted in their insurance policies covering buildings, equipment, tenant's
improvements, fixtures and stock, LESSOR and LESSEE each hereby releases and
waives the right of subrogation against the other including their officers,
directors and employees, if any, for any damage or loss to property caused by
fire, explosion or other hazard covered by an extended coverage policy.
18. PUBLIC LIABILITY INSURANCE: LESSEE shall at all times during
the term of this Lease, and at its expense, carry comprehensive general
liability insurance for the protection of LESSOR as contemplated in this
paragraph with companies reasonably satisfactory to LESSOR. Such liability
insurance shall protect LESSOR against the claims for injuries to person or
persons or property of third parties arising or growing out of the use of said
Premises by LESSEE, and the amount of liability and property damage insurance
shall not be less than the sum of $500,000.00 per person, a $1,000,000.00
umbrella aggregate, and $100,000.00 property damage coverage. LESSEE shall
cause LESSOR to be included as an additional insured under the terms of said
policies. LESSEE may comply with this paragraph under the terms of a blanket
insurance policy acceptable to LESSOR.
19. FIRE INSURANCE: LESSEE shall secure and maintain casualty
insurance upon the Premises occupied hereunder against the hazards normally
and customarily insured against, including fire and extended coverage in an
amount of 80% of the replacement value of the improvements and with a carrier
or carriers selected by LESSEE and reasonably approved by LESSOR and shall
secure the naming of LESSOR as an additional insured under said policy.
20. TAX CLAUSE: LESSEE shall pay, before delinquency, any and
all ad valorem property taxes assessed against the Premises herein leased. In
the event that tax bills or notices are mailed to LESSOR as record owner,
LESSOR shall promptly transmit said bills or notices to LESSEE and no failure
of payment by LESSEE shall be deemed a breach hereof unless and until said
bills or notices have in fact been transmitted. Penalties or interest
assessed by reason of LESSOR's failure or delay to transmit bills or notices
shall be borne by LESSOR.
21. ASSIGNMENT AND SUBLETTING: The LESSEE may assign this Lease
with the written consent of LESSOR, which consent shall not be unreasonably
withheld, provided always that rents in excess of those called for in this
Lease are divided equally between LESSEE and LESSOR after LESSEE is reimbursed
for its bona fide costs of relocating and expenses of reletting, all not to
exceed $25,000.00. The LESSEE may sublet portions of the Premises to related
or affiliated corporations without the consent of LESSOR provided LESSEE shall
remain primarily responsible for the obligations contained herein. No
business is to be pursued on the Premises which will injure the property or
detract from the rental value thereof and the LESSEE continues to be
responsible for its obligations contained herein.
22. LAWS, ORDINANCES: LESSOR represents that on the Commencement
Date of this Lease Agreement, the demised Premises shall not be in violation
of applicable laws, regulations, and ordinances of the appropriate
governmental agencies.
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23. HOLDING OVER: In the event LESSEE shall, after the
termination of the Lease or any extension thereof, continue to occupy or
remain on the Premises without a written agreement having been entered into,
then any such holding over shall be deemed a month-to-month tenancy, but
otherwise subject to all of the terms of this Lease.
24. SUCCESSORS: This Lease shall bind and inure to the benefit
of the successors, assigns, heirs, executors, and administrators of the
parties hereto, subject to the provisions herein.
25. ENDORSEMENTS: No agreement, oral or written, respecting the
leased Premises shall be binding upon either party to this Lease unless in
writing and attached hereto.
26. PROTECTIVE COVENANTS: LESSOR has prepared Protective
Covenants governing the use and occupancy of the respective tracts in Tampa
West Industrial Park of which the demised Premises is a part, and a copy of
said Protective Covenants is attached hereto and made a part hereof as Exhibit
"B." LESSEE agrees that such Protective Covenants are firm and binding, and
LESSEE agrees to comply with same.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed in due form of law as of the day and year first above written.
Signed, sealed and delivered TAMPA WEST INDUSTRIAL PARK, INC.
in the presence of: (Corporate Seal)
/s/ Xxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx, President
By:
"LESSOR"
/s/ N.C. Graniere
Witnesses as to LESSOR
REFLECTONE, INC.
(Corporate Seal)
/s/ Xxxx X. Xxxxx /s/Xxxxxx X. Xxxxx, Vice Chairman
By:
"LESSEE"
/s/N C Graniere
Witnesses as to LESSEE
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GUARANTY OF PERFORMANCE
In order to induce TAMPA WEST INDUSTRIAL PARK, INC., a Florida
corporation, to enter into the aforesaid Lease with REFLECTONE, INC., a
Delaware corporation, XXXXXX & ASSOCIATES, INC., a Delaware corporation,
unconditionally and irrevocably guarantees to TAMPA WEST INDUSTRIAL PARK,
INC., its successors and assigns, the full and punctual performance and
observance by REFLECTONE, INC. of all terms, covenants, conditions and
provisions in said Lease, contained on the part of REFLECTONE, INC. to be
kept, performed and observed. XXXXXX & ASSOCIATES, INC. also agrees to be
primarily liable under this Lease to TAMPA WEST INDUSTRIAL PARK, INC. without
the necessity of any notice, demand or prior legal action against REFLECTONE,
INC.
XXXXXX & ASSOCIATES, INC.
(Corporate Seal)
/s/ Xxxx X. Xxxxx /s/Xxxx Xx. Xxxxxx
By:
/s/ N C Graniere
Witnesses as to Xxxxxx &
Associates, Inc.
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