EX-10.1






Exhibit 10.01




LEASE AGREEMENT




          THIS LEASE AGREEMENT (the “Lease”) is made as of the 10th day of
November, 2006 (the “Effective Date”), by and between BOCA 54 NORTH LLC, a Delaware limited
liability company (the “Landlord”), and OFFICE DEPOT, INC., a Delaware corporation (the “Tenant”).




WITNESSETH:




1. GRANT; TERM.




     1.1 PROPERTY AND PREMISES; LANDLORD’S TITLE. In consideration of the mutual
undertakings of the parties set forth in this Lease and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, subject to the terms and conditions of this Lease, for the term
and at the rent hereinafter stated, the premises consisting of three (3), five (5) story office
buildings containing approximately 208,000 Rentable Square Feet each (each, a “Building” and
collectively, the “Buildings”), together with various special purpose facilities (such as an
employee cafeteria and an auditorium but only if reflected in the final approved Base Building
Plans, as hereinafter defined), together with the Base Building Systems (as hereinafter defined),
grading, drainage, site work, parking and landscaped areas, restrooms, lobbies, equipment rooms,
atriums, Building connectors, and related improvements to the foregoing, (collectively, the “Site
Improvements”), which Buildings and Site Improvements consist of approximately 624,000 total Square
Feet (which square footage of the Buildings is subject to adjustment as provided in the
Construction Addendum (as hereinafter defined), and which is for information purposes only, and not
to be used for calculation of Base Rent, all to be constructed by Landlord in accordance with the
terms of the “Construction Addendum for Base Building,” “Shell Improvements” and “Leasehold
Improvements” attached hereto and made a part hereof as Exhibit “A” (the “Construction Addendum”),
on the real property consisting of approximately 28.75 acres located at the southeast corner of
Military Trail and Clint Moore Road, Boca Raton, Florida, and legally described on Exhibit “B,”
attached hereto and made a part hereof (the “Property”); together with the non-exclusive right to
utilize the appurtenances, rights, privileges, and easements specifically pertaining thereto
including without limitation those established pursuant to the Declaration, as hereinafter defined
(collectively, the “Appurtenances”) (the Buildings, the Site Improvements, the Appurtenances, and
the Property shall be collectively referred to herein as the “Premises”). The Premises are located
in a multiple building, business and/or office park known as Arvida Park of Commerce (the “Park”).



     The terms “Gross Building Area,” “Rentable Square Feet” and “Rentable Square Foot,” and
“Useable Square Feet” and “Useable Square Foot,” shall have the general and customary meaning given
thereto in accordance with the “American National Standard” method of measuring floor area in
single-tenant office buildings as promulgated by the Building Owners and Managers Association
International (ANSI/BOMA Z65.1-1996), and, subject to the terms of the Construction Addendum, shall
be determined by a certification signed by the Base Building



 









 







Architect (as defined in the Construction Addendum) upon Substantial Completion (as defined in
the Construction Addendum). The calculation of area of the Premises is for information purposes
only, and not to be used for calculation of Base Rent.



     Landlord represents and warrants that Landlord (i) has entered into a contract for the
purchase of the Golf Course Parcel (as hereinafter defined), and (ii) is the fee owner of the
remainder of the Premises, that it has good and marketable fee simple title thereto, and that same
are free and clear of all leases, tenancies, agreements, encumbrances, liens or defects in title
other than the title exceptions identified in Exhibit “F” hereto (the “Permitted Exceptions”).
Landlord agrees that it will furnish to Tenant, without cost, a leasehold title insurance
commitment issued by Chicago Title Insurance Company evidencing that Landlord’s title is in
accordance with the foregoing, together with a copy of each requirement and exception shown
therein, and a copy of Landlord’s existing survey (if Landlord updates its survey, Landlord will
provide a copy of the update to Tenant, and Landlord will cause the updated survey to be certified
to Tenant and a title insurance company and agent therefor as requested by Tenant). Tenant shall
pay the premium and all other costs incurred in connection with the title insurance policy issued
pursuant to such commitment, provided, however, that Tenant shall have the right to take advantage
of any “simultaneous issue” rate which may be available in connection with the issuance of any
title policies being issued to Landlord’s construction lender and to Landlord (provided that Tenant
acknowledges that a simultaneous issue policy for Tenant’s leasehold cannot be issued for a de
minimus amount). Landlord shall provide (x) an affidavit reasonably requested by the Tenant’s
title company covering (i) Landlord’s possession of the Property, and (ii) the absence of
unrecorded easements affecting the Property, and (iii) the absence of construction liens affecting
the Property (other than relating to a Notice of Commencement recorded subsequent to Tenant’s
Memorandum of Lease and Landlord’s construction financing, if any), and (y) documentation
reasonably requested by the Tenant’s title company regarding Landlord’s formation and authority.



     1.2 NO COMMON AREAS. There are no common areas being shared with other occupants on
the Premises, it being acknowledged and agreed that, subject to Tenant’s non-exclusive rights to
the Appurtenances, Tenant has the exclusive right to use, occupy, and enjoy the Premises during the
Term and any renewal or extension thereof. However, the square footage of such areas such as
atriums and Building connectors are included in the determination of Rentable Square Feet for
purposes of this Lease as specifically provided in this Lease.



     1.3 LEASE TERM. The term of this Lease (the “Term”) shall commence on the date that
Landlord achieves Substantial Completion of the Base Building Work and Substantial Completion of
the Leasehold Improvement Work (as such terms are defined in the Construction Addendum) (the “Term
Commencement Date”), and shall continue for a period of one hundred eighty (180) calendar months
following the Base Rent Commencement Date (as hereinafter defined), plus any partial days in the
month in which the Base Rent Commencement Date falls (if not on the first of the month), so that
the expiration date of the Term will be the last day of a month. Notwithstanding the foregoing,
Tenant shall have no right to possession of the Premises until Tenant has provided Landlord with a
certificate of insurance evidencing the insurance coverages that Tenant is obligated to maintain
pursuant to this Lease. Landlord and Tenant shall execute a Memorandum of Lease Commencement
substantially in form and substance as Exhibit “C,” attached hereto and made a part hereof
establishing the Term Commencement Date



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and the Base Rent Commencement Date as soon as such dates have been determined in accordance
with this Lease. The period of time from the first (1st) day of the first (1st) full month after
the month in which the Term Commencement Date occurs (or the Term Commencement Date itself, if it
occurs on the first day of the month) to the last day of the twelfth (12th) calendar month
thereafter, and each successive twelve (12) month period thereafter, is referred to herein as a
“Lease Year.”



2. RENT AND OTHER CHARGES.




     2.1 BASE RENT. For purposes of this Lease, the “Base Rent Commencement Date” shall
mean the later of (a) forty-five (45) days following Substantial Completion of the Leasehold
Improvement Work for the North Building (as defined in the Construction Addendum), and
(b) November 1, 2008; provided that Substantial Completion of the Leasehold Improvement Work has
been achieved. Commencing on the Base Rent Commencement Date, Tenant hereby covenants and agrees
to pay “Base Rent” in accordance with the Base Rent schedule set forth in Exhibit “D,” attached
hereto and made a part hereof. Base Rent shall be paid without demand, set off or deduction,
except as otherwise expressly set forth in this Lease, to Landlord at the address set forth in this
Lease or such other address as Landlord directs in writing, and shall be paid in advance in equal
monthly installments on the first day of each month in lawful United States currency, together with
any and all rental, sales or use taxes levied by any governmental body having authority upon the
use or occupancy of the Premises and any rent or other charges payable hereunder. If the Base Rent
Commencement Date should be a date other than the first day of a calendar month, the monthly rental
applicable to the first full calendar month will also apply to the initial partial calendar month
and will be prorated to the end of the partial calendar month. As provided in, and subject to the
terms of, the Construction Addendum, if any Tenant Delay delays Substantial Completion of the
Leasehold Improvement Work, then Substantial Completion of the Leasehold Improvement Work shall be
deemed to be the date that Substantial Completion of the Leasehold Improvement Work would have been
achieved, but for such Tenant Delay, as reasonably determined by Landlord.



     2.2 LATE CHARGES. If any Base Rent or other payment due under this Lease is not
received by Landlord within ten (10) days after written notice to Tenant of its failure to make
such payment (provided, however that Landlord shall not be obligated to provide such written notice
to Tenant more than two (2) times in any twelve (12) month period), Tenant shall pay, in addition
to such payment a late charge equal to five (5%) percent of the payment which is past due. If any
payment due from Tenant shall remain overdue for more than thirty (30) days after written notice to
Tenant of its failure to make such payment (provided, however that Landlord shall not be obligated
to provide such written notice to Tenant more than two (2) times in any twelve (12) month period),
interest shall accrue daily on the past due amount from the date such amount was due until paid or
judgment is entered at a rate equivalent to the lesser of (a) the then “prime rate” as published in
The Wall Street Journal plus five (5%) percent per annum or (b) the highest rate permitted by law
(not to exceed 18% per annum) (such rate being herein called the “Default Interest Rate”).
Interest on the past due amount shall be in addition to and not in lieu of the late charge or any
other remedy available to Landlord. The foregoing shall not be deemed to be a waiver of any
statutory notice requirements imposed upon Landlord in order to commence any eviction proceedings
under Florida Statutes.



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     2.3 ADDITIONAL RENT. All charges payable by Tenant to Landlord under the terms of
this Lease other than Base Rent shall be deemed to be “Additional Rent” hereunder. Unless this
Lease provides otherwise, all Additional Rent shall be paid with the next monthly installment of
Base Rent together with all applicable sales or use taxes. The term “Rent” shall mean Base Rent
and Additional Rent.



     2.4 TAXES.



     2.4.1 Personal Property Taxes. Commencing upon the Base Rent Commencement Date,
Tenant shall pay, as and when due, all taxes attributable to the personal property, trade fixtures,
business, occupancy, or sales of Tenant or any other occupant of the Premises and to the use
thereof by Tenant or such other occupant.



     2.4.2 Real Estate Taxes. Commencing upon the Base Rent Commencement Date, Tenant
shall pay, as and when due, all real estate taxes, personal property taxes and other ad valorem and
non ad valorem taxes, and any other levies, charges, local improvement rates, impositions and
assessments whatsoever assessed or charged against the Premises, the equipment and improvements
therein contained, and including any amounts assessed or charged in substitution for or in lieu of
any such taxes (collectively, “Real Estate Taxes”), levied or assessed against the Premises by any
lawful authority for each calendar year or portion thereof during the period between the Base Rent
Commencement Date and the expiration of the Term. Landlord shall request the tax assessor to send
all bill(s) and any trim notice (i.e., notice of the assessed value of the Property of which the
Premises is a part) for Real Estate Taxes directly to Tenant and Tenant agrees to be responsible to
pay the Real Estate Taxes directly to the taxing authorities prior to any delinquency. If any Real
Estate Taxes may at the option of the taxpayer be paid in installments (whether or not interest
shall accrue on the unpaid balance of such Real Estate Taxes), Tenant shall be required to pay only
such installments as shall become due during the Term of this Lease. In the event that the tax
bill(s) and/or trim notice are not sent by the taxing authorities directly to Tenant, Landlord
shall provide Tenant with all such tax bill(s) and/or trim notice promptly upon Landlord’s receipt
thereof. Any rebates, refunds, or abatements of Real Estate Taxes received by Landlord subsequent
to payment of Real Estate Taxes by Tenant shall be refunded to Tenant within thirty (30) days of
receipt thereof by Landlord ((less, if Landlord contested such Real Estate Taxes at Tenant’s
request, Landlord’s reasonable costs and expenses of procuring such rebate, refund, or abatement).
Tenant shall provide Landlord with paid tax receipts or, if not available, other proof of payment
reasonably acceptable to Landlord, on or before ten (10) business days before the date that the
Real Estate Taxes would be deemed to be delinquent (i.e., the date that penalties would start to
accrue). If Tenant does not pay Real Estate Taxes and provide proof of payment by the aforesaid
date, Landlord, upon two (2) business days’ written notice, shall have the right to pay the Real
Estate Taxes and Tenant shall reimburse Landlord within thirty (30) days of receipt of demand for
payment by Landlord, with interest at the Default Interest Rate. Said Real Estate Taxes are to be
prorated for any partial Lease Year occurring at the beginning or end of the Term during the period
in which the taxing authority assesses Real Estate Taxes.



     2.4.3 Contesting Taxes. If Tenant desires, as determined by Tenant in its reasonable
business judgment, to contest the validity or amount of any tax, assessment, levy, or other
governmental charge agreed to in this Lease to be paid by Tenant, Tenant shall be permitted to



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do so, upon posting of adequate security or the payment of amounts, all as may be required by
Applicable Laws (as defined in Section 3.2 hereof), to prevent loss of title to the Premises or the
imposition of penalties on Landlord or the Premises and after giving Landlord prior written notice
of Tenant’s intent to contest the taxes for the applicable year. So long as Tenant complies with
the foregoing, Landlord shall cooperate with Tenant (at no expense to Landlord) and execute any
document which may be reasonably necessary for any such contest proceeding. Nothing herein shall
be deemed to limit Landlord’s right (at Landlord’s sole cost and expense) to contest any tax,
assessment, levy or government charge imposed against the Premises, which right, with respect to ad
valorem real property taxes, shall be exercised by Landlord in its reasonable business judgment
after giving Tenant prior written notice of Landlord’s intent to contest the taxes and, further
provided, that any contest by Landlord does not unreasonably interfere with any contest by Tenant.
The foregoing restriction on Tenant’s ability to contest the validity or amount of any tax,
assessment, levy, or other governmental charge agreed to in this Lease to be paid by Tenant shall
only be deemed to apply to Real Estate Taxes and shall not be deemed to apply to any personal
property taxes, which are payable by Tenant on its personalty in the Premises. Tenant shall be
entitled to any refund of any Real Estate Taxes or other charges or penalties or interest thereon
which have been paid by Tenant (less, if Landlord contested such taxes at Tenant’s request,
Landlord’s reasonable costs and expenses of procuring such refund).



     2.4.4 Receipts. Upon written request of Landlord, during the Term of this Lease,
Tenant shall obtain and deliver to Landlord paid receipts for all taxes, assessments, and other
items required under this Lease to be paid by Tenant.



     2.4.5 Exclusions. Real Estate Taxes shall not include any franchise, estate, and
income taxes imposed upon Landlord.



     2.4.6 Separate Parcel. If the Premises are not currently taxed by the applicable
governmental authorities as one or more parcels separate from the other parcel(s) included in
Landlord’s tax bills, then Landlord, at its sole cost and expense, shall apply for and diligently
follow such procedures as are necessary to have the Premises taxed by the applicable governmental
authorities as one or more parcels separate from the other parcel(s) included in Landlord’s tax
bills, so that Tenant will be in a position to pay and/or contest Real Estate Taxes on its own,
subject to the terms of this Section. When the Premises are taxed or assessed as one or more
separate parcels, Landlord shall direct the tax authority to send the tax bills (and any trim
notices) for the Premises directly to Tenant’s address during the Term hereof. If the Premises is
taxed or assessed together with other land owned by Landlord, then, for any parcel which includes
the Premises and other land owned by Landlord: (a) Tenant’s share of Real Estate Taxes shall be
determined by multiplying such taxes or assessments in the entire tax bill by a fraction, the
numerator of which is the total value of the portion of the Premises included in the tax bill and
the denominator of which is the total value of all property included in the tax bill, and Landlord
shall provide such determination to Tenant in writing, together with a copy of the applicable tax
bill, no later than thirty (30) days prior to the due date of such Real Estate Taxes for the
applicable year; and (b) Landlord agrees to give Tenant a copy of any trim notice (i.e., notice of
the assessed value of the real property of which the Premises is a part) within ten (10) business
days after Landlord’s receipt thereof.



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     2.5 ELECTRICITY. Commencing upon Substantial Completion of the Base Building Work (as
defined in the Construction Addendum), Tenant shall pay for all costs and fees incurred in
connection with the provision and use of electricity at the Premises, including, without
limitation, the parking areas therefor, as separately metered in Tenant’s name.



     2.6 OPERATING EXPENSES.



     2.6.1 Tenant’s Responsibility. Subject to the terms of Section 7, commencing upon the
Term Commencement Date, Tenant shall be solely responsible, at Tenant’s sole cost and expense, for
the maintenance, operation, repair, replacement (regardless of whether such replacement is required
under any Applicable Law that was not in effect or not applicable to the Premises on the Term
Commencement Date), and administration of the Premises, including, without limitation:
(i) maintenance of HVAC, electrical, mechanical, plumbing, fire, life safety and elevator systems
serving the Buildings (collectively, the “Building Systems”); (ii) water, sewer, gas, and other
utility charges (including electricity charges, as provided above) for the Premises, all of which
shall be separately metered in Tenant’s name; (iii) landscaping, tree trimming, and pest control
for the Premises, and (iv) window washing, janitorial services (to be provided in the manner that
such services are customarily furnished in comparable office buildings in the area), rest room
supplies and other maintenance expenses in connection with the Premises (collectively, the “Tenant
Operating Expenses”).



     2.6.2 Landlord Operating Expenses. In addition, commencing on the Base Rent
Commencement Date, Tenant shall be responsible to reimburse and/or pay Landlord for the following
expenses: (i) insurance that Landlord is obligated or permitted to obtain under this Lease and any
deductible amount applicable to any claim made by Landlord under such insurance (“Insurance
Expenses”), and (ii) the dues and assessments due under the Declaration (as hereinafter defined)
with respect to the Premises (“Assessment Expenses”) (collectively, the “Landlord Operating
Expenses”).



     2.6.3 Payment of Landlord Operating Expenses. In addition to the payment of Base
Rent, commencing on the Base Rent Commencement Date, Tenant shall pay one hundred percent (100%) of
the Landlord Operating Expenses to Landlord. On or before March 31 of each calendar year, Landlord
shall provide a good faith estimate of Landlord Operating Expenses for that calendar year
(the “Estimate Statement”). Tenant shall remit monthly one-twelfth (1/12th) of the amount set
forth in the Estimate Statement (the “Estimated Payment”) as Additional Rent together with its
payments of Base Rent; provided that Landlord may invoice Tenant retroactively for the months of
January through the month of issuance of the Estimate Statement. On or before March 31st of each
calendar year, Landlord shall send a statement to Tenant detailing all actual Landlord Operating
Expenses for the prior calendar year (the “Landlord Operating Expense Statement”). If the Landlord
Operating Expense Statement indicates that the total Estimated Payments made by Tenant during the
preceding year exceeded the actual Landlord Operating Expenses for such year, then, at Landlord’s
option (except upon the expiration of the Term, whereupon a refund shall automatically be given, if
applicable), Tenant shall be given either: (i) a credit against its next due Estimated Payment, or
(ii) a refund, in the amount of the difference between the Estimated Payments made in the preceding
year and the actual Landlord Operating Expenses for such year (which shall be paid to Tenant within
thirty (30) days of issuance of the applicable Landlord Operating Expense Statement or the end



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of the Term, whichever occurs sooner). If the Landlord Operating Expense Statement indicates
that the actual Landlord Operating Expenses exceeded the Estimated Payments, then Tenant shall
remit the difference to Landlord as Additional Rent within thirty (30) days after Tenant’s receipt
of the applicable Landlord Operating Expense Statement. Landlord’s failure to provide a statement
shall not prejudice Landlord’s right to collect a shortfall or Tenant’s right to receive a credit
or refund for over payments. However, if Landlord fails to provide a Landlord Operating Expense
Statement (or corrected Landlord Operating Expense Statement if the initial statement was
incorrect) within twenty-four (24) months after the end of the year for which Estimated Payments
were made, Landlord shall be deemed to have waived its right to collect a shortfall for that year.
Any obligation of Landlord or Tenant to remit any overpayment or underpayment pursuant to this
Section shall survive the expiration of the Term or earlier termination of this Lease. Each
payment of Landlord Operating Expenses shall include applicable sales and use taxes.



     2.6.4 Audit. During the Term or any extension thereof, but not more than one (1) time
per year, Tenant shall have the right to cause Landlord’s books and records with respect to
Landlord Operating Expenses to be audited by a reputable independent certified public accountant or
a reputable lease auditing firm of Tenant’s choosing; provided that: (i) Tenant shall notify
Landlord, in writing, that it has elected to perform such audit within one hundred eighty (180)
days after Tenant’s receipt of the applicable Landlord Operating Expense Statement for the year to
be audited (the “Election Notice”); (ii) such audit shall commence within ninety (90) days after
Tenant sends the Election Notice; (iii) such audit shall be completed within sixty (60) days after
the same is commenced; and (iv) Tenant shall have a reasonable period of time to object to a
Landlord Operating Expense Statement based upon the results of such audit (which shall in no event
exceed sixty (60) days after the completion of such audit). Tenant hereby agrees to keep the
results of any such audit(s) confidential (except for disclosures required by law) and any
agreement that Tenant enters into with an outside accounting firm shall provide that such firm
shall also keep such results confidential (except for disclosures required by law). Landlord shall
cause such books and records to be made available for such inspection during normal business hours
at Landlord’s option at a location selected by Landlord in Palm Beach County, Florida, upon no less
than ten (10) business days’ prior written notification by Tenant to Landlord. Such audit shall be
done in accordance with generally accepted auditing principles, consistently applied and Tenant
shall provide Landlord a complete copy of such audit results at the conclusion thereof. If, at the
conclusion of such audit, Tenant’s audit of such expenses for the preceding year indicates that
Tenant made an overpayment to Landlord for such preceding year, Landlord shall remit the amount of
such overpayment to Tenant within thirty (30) days after receipt of notice from Tenant of the
amount of such overpayment; if such audit indicates that Tenant made an underpayment for such
preceding year, Tenant shall remit the difference to Landlord as Additional Rent within thirty (30)
days of the conclusion of such audit. Should Landlord disagree with the results of Tenant’s audit,
Landlord and Tenant shall refer the matter to a mutually acceptable independent certified public
accountant, who shall be hired on a non-contingent fee basis and shall work in good faith with
Landlord and Tenant to resolve the discrepancy. The fees and costs of such independent accountant
to which such dispute is referred shall be borne by the unsuccessful party and shall be shared pro
rata to the extent each party is unsuccessful as determined by such independent certified public
account, whose decision shall be final and binding. Landlord shall pay the cost of Tenant’s audit
if the total amount of Landlord Operating Expenses used for the calculation of pass-throughs for
the



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year in question exceeded five (5%) percent of the total amount of Landlord Operating Expenses
that should properly have been used.



3. USE OF PROPERTY.



     3.1 PERMITTED USE. Tenant may use the Premises only for the following Permitted Use:
general office and business use, which includes, but is not limited to, corporate headquarter
facilities and uses ancillary and related thereto, the supporting use of conference and computer
facilities, employee kitchen and related non-commercial facilities which provide incidental
services to employees only (e.g., day care facilities, gym facilities, convenience store, banking
facilities, and dry cleaning service (drop-off and pick-up only, with no on-site dry cleaning), all
for employees only) (the “Permitted Use”). Tenant shall not allow smoking of any kind inside the
Buildings; it being understood and agreed that each of the Buildings shall be designated as a
“non-smoking facility.” In addition, Tenant shall not permit any activity which would exceed the
floor and/or elevator load capacity or which would otherwise damage the Building Systems or
structural components of a Building. Landlord represents and warrants to Tenant that on the Term
Commencement Date of this Lease, the Premises (including, without limitation, the “Golf Course
Parcel”, as described in Exhibit “B”) and the Permitted Use thereof by Tenant will not be
prohibited by the Certificate of Occupancy issued for the Buildings, and that Landlord will take no
action so as to cause Tenant’s Permitted Use of the Premises to violate in any material respect any
restrictions imposed upon the Premises by deed, the Declaration (as defined below), or otherwise.
These representations and warranties of Landlord shall survive Tenant’s acceptance of the Premises.



     3.2 COMPLIANCE WITH LAWS. During the Term, subject to Tenant’s compliance at all
times with the provisions of Section 4.2 hereof, Tenant shall be solely responsible for making any
structural modifications to the Premises or alterations to the Building Systems as may be required
pursuant to any federal, state or local laws, ordinances, building codes, and rules and regulations
of governmental entities or quasi-governmental entities having jurisdiction over the Premises,
including but not limited to the Board of Fire Underwriters, the South Florida Water Management
District, and the Americans with Disabilities Act (the “ADA”) and all regulations and orders
promulgated pursuant to the ADA as currently enacted or modified from time to time or enacted after
the Effective Date (collectively, “Applicable Laws”); provided, however, that Landlord warrants
that it shall be solely responsible, at Landlord’s sole cost and expense, for promptly making any
modifications to the Premises or alterations to the Building Systems or other repairs required as a
result of Landlord’s failure to comply with Applicable Laws in connection with Landlord’s
obligations under the Construction Addendum as of the date of the Term Commencement Date. In
addition, Tenant shall comply with all Applicable Laws relating to its use and occupancy of the
Premises, and shall promptly comply with all governmental orders and directives for the correction,
prevention, and abatement of nuisances in, upon, or connected with the Premises, all at Tenant’s
sole expense. Except as specifically provided in this Lease, Tenant will procure at its own
expense all permits and licenses required for the transaction of its business in the Premises.
Nothing contained in this Section is deemed to amend or modify Landlord’s warranty of construction
as set forth in the Construction Addendum.



          If Tenant fails to perform its obligations under this Section within thirty (30) days after
receipt of written notice thereof from Landlord, then in addition to any other rights and


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remedies Landlord may have under Section 8.2 hereof, Landlord shall have the right, but not
the obligation, to perform the same, whereupon any and all of Landlord’s costs and expenses
incurred in connection therewith shall be promptly reimbursed by Tenant within thirty (30) days
after written demand by Landlord, together with reasonable written supporting documentation
therefor. Notwithstanding the foregoing, if the performance of such obligation by Tenant would
reasonably require more than thirty (30) days to complete, Tenant shall have a reasonable time to
perform in order to cure such default (subject to extension for Force Majeure) provided Tenant
commences to cure within such thirty (30) day period and thereafter diligently prosecutes such cure
to completion.




     3.3 HAZARDOUS MATERIALS.



     (a) Throughout the Term, Landlord and Tenant will prevent the presence, use, generation,
release, discharge, storage, disposal, or transportation of any Hazardous Materials (as herein
defined) on, under, in, above, to, or from the Premises by such party or its respective agents,
employees, or contractors except that Hazardous Materials may be used in the Premises as necessary
for the customary maintenance or customary use of the Premises (and in Tenant’s case, except as are
normally used in connection with the Permitted Use) provided that same are used, stored, and
disposed of in compliance with any Applicable Laws pertaining to protection of the environment,
public health and safety, air emissions, water discharges, hazardous or toxic substances, solid or
hazardous wastes or occupational health and safety, and common law pertaining to the foregoing
(collectively, the “Environmental Laws”). For purposes of this provision, the term “Hazardous
Materials” will mean and refer to any unlawful levels of wastes, materials, or other substances of
any kind or character that are or become regulated as hazardous or toxic waste or substances, or
which require special handling or treatment, under any Environmental Laws.



     (b) If Tenant’s activities at the Premises or Tenant’s use of the Premises (i) results in a
release of Hazardous Materials by Tenant or its agents, employees, or contractors that is not in
compliance with Environmental Laws or permits issued thereunder; (ii) gives rise to any claim or
requires a response under Environmental Laws or permits issued thereunder; or (iii) causes the
presence at the Premises of Hazardous Materials in levels that violate Environmental Laws or
permits issued thereunder, then Tenant shall, at its sole cost and expense: (x) immediately
provide verbal notice thereof to Landlord as well as notice to Landlord in the manner required by
this Lease, which notice shall identify the Hazardous Materials involved and the emergency
procedures taken or to be taken; and (y) promptly take all action in response to such situation
required by Applicable Laws, provided that Tenant shall first obtain Landlord’s approval of the
non-emergency remediation plan to be undertaken (which approval shall not be unreasonably withheld,
conditioned, or delayed).



     (c) Tenant shall at all times indemnify and hold harmless Landlord against and from any and
all claims, suits, actions, debts, damages, costs, losses, obligations, judgments, charges and
expenses (including reasonable attorneys’ fees) of any nature whatsoever suffered or incurred by
Landlord to the extent they were caused by the following activities of Tenant on the Premises
during the Term of this Lease and arise from events or conditions which came into existence after
the Term Commencement Date: (i) any release, threatened release, or disposal of any Hazardous
Materials at the Premises by Tenant or its employees, officers, agents, licensees,



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invitees, assignees, subtenants, contractors, or subcontractors, or (ii) the violation of any
Environmental Laws at the Premises by Tenant or its employees, officers, agents, licensees,
invitees, assignees, subtenants, contractors, or subcontractors.



     (d) Tenant acknowledges that it has received and reviewed that certain Phase I and Limited
Phase II Environmental Site Assessment of 10 Vacant Arvida Park of Commerce Parcels, dated
November 2, 2004 (Revised) and prepared by Camp Dresser & McKee Inc. (the “Environmental Report”).
Landlord warrants and represents that, as of the Effective Date, to the actual knowledge of Harry
St. Clair and Jose Hevia, and except as otherwise specified in the Environmental Report, no use,
storage, treatment, transportation, release, leak, discharge, spill, disposal or emission of
Hazardous Materials has occurred in, on or about the Premises (excepting the Golf Course Parcel),
and that the Premises (excepting the Golf Course Parcel) are free of Hazardous Materials and in
compliance with all Environmental Laws as of the Effective Date, except as otherwise specified in
the Environmental Report.



     (e) Tenant acknowledges that it has received and reviewed that certain Phase I Environmental
Site Assessment and Phase II ESA of the Golf Course Maintenance Area, dated April 2006 and prepared
by Camp Dresser & McKee Inc. in connection with the Golf Course Parcel, together with that certain
Proposal for Site Assessment Report, dated June 14, 2006 and prepared by Camp Dresser & McKee Inc.
in connection with the Golf Course Parcel (collectively, the “Golf Course Parcel Environmental
Report”). Landlord warrants and represents that, as of the Effective Date, except as otherwise
specified in the Golf Course Parcel Environmental Report, Harry St. Clair and Jose Hevia have no
actual knowledge of (i) any use, storage, treatment, transportation, release, leak, discharge,
spill, disposal or emission of Hazardous Materials in, on or about or from the Golf Course Parcel;
(ii) the presence of any Hazardous Materials in, on or about or from the Golf Course Parcel, or
(iii) the violation of any Environmental Laws in, on or about or from the Golf Course Parcel.



     (f) As necessary to comply with Applicable Laws in connection with Landlord’s obligations
under the Construction Addendum as of the date of the Term Commencement Date, Landlord will be
responsible, at its expense, to comply with all reporting obligations applicable to the
environmental condition of the Premises (including the Golf Course Parcel), and to perform any
environmental investigation, remediation or monitoring required to be performed in connection with
the Premises (including the Golf Course Parcel). Any investigation, remediation or monitoring
required to be undertaken by the Landlord shall be undertaken within the time period required by
Environmental Laws and in a manner so as not to unreasonably interfere with Tenant’s use and
occupancy of the Premises. Landlord shall indemnify and hold harmless Tenant against and from any
and all claims, suits, actions, debts, damages, costs, losses, obligations, judgments, charges,
fines, penalties and expenses (including reasonable attorneys’ fees) of any nature whatsoever
suffered or incurred by Tenant to the extent resulting from the failure of Landlord to complete any
investigation, remediation or monitoring required to bring the Premises into compliance with all
applicable Environmental Laws or any permits issued under the Environmental Laws, except, in each
case, for any loss or damage actually caused by the negligence or willful misconduct of Tenant or
its agents, employees, or contractors.



     (g) Landlord shall at all times indemnify and hold harmless Tenant against and from any and
all claims, suits, actions, debts, damages, costs, losses, obligations, judgments, charges,



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fines, penalties and expenses (including reasonable attorneys’ fees) of any nature whatsoever
suffered or incurred by Tenant to the extent they were caused by the following activities of
Landlord: (i) any release, threatened release, or disposal of any Hazardous Materials by Landlord
or its agents, employees, licensees, assignees, contractors or subcontractors or (ii) the violation
of any Environmental Laws or any permits issued under the Environmental Laws by Landlord or its
agents, employees, licensees, assignees, contractors or subcontractors, except, in each case, for
any loss or damage actually caused by the negligence or willful misconduct of Tenant or its agents,
employees, or contractors.



     (h) The indemnification provisions of this Section shall survive the expiration of the Term or
earlier termination of this Lease.



     3.4 SIGNS. Tenant shall have the exclusive right to place signage on or in any
interior or exterior portion of each Building or the Property (which shall include, without
limitation, the right to install monument signs on the Property at the entrance(s) of the Premises
as may be permitted by Applicable Laws and with the requirements of the Declaration); provided
that: (a) Tenant shall comply with all Applicable Laws and with the requirements of the
Declaration; and (b) with respect to any exterior signage or any signage within the interior of the
Building which is visible from the exterior of the Building, Tenant shall obtain the prior written
consent of Landlord, which shall not be unreasonably withheld, delayed, or conditioned; provided,
further, however, that so long as Tenant’s signage complies with subparagraph (a), Landlord’s
consent is not required for any signage that reflects solely Tenant’s name and/or logo. Any and
all such approved signs shall be installed and shall be maintained by Tenant, in good order,
condition, and repair, at Tenant’s sole cost and expense, and shall be at all times consistent with
Applicable Laws and any sign criteria established pursuant to the Declaration. Tenant shall be
responsible to Landlord for the installation, use, or maintenance of said signs and any damage
caused thereby. Tenant agrees to remove all of its signs prior to the expiration date or earlier
termination of this Lease, and upon such removal to repair all damage incident to such removal,
reasonable wear and tear and damage by casualty and condemnation excepted. In connection with
Landlord’s approval of signage to the extent required above, Landlord shall respond to a request by
Tenant within ten (10) business days after receipt of Tenant’s written request for consent. If
Landlord fails to respond to Tenant’s initial written request, then Tenant shall provide Landlord a
written reminder notice with respect thereto. If Landlord fails to respond within two (2) business
days after receipt of such reminder notice, then Landlord’s consent shall be deemed to be granted.



     3.5 LANDLORD’S ACCESS. Landlord shall be entitled at all reasonable times, after
prior reasonable notice to Tenant and subject to Tenant’s reasonable security procedures, to enter
the Premises to examine them and to make such repairs, alterations, or improvements thereto as are
expressly required under this Lease. Landlord shall exercise its rights under this Section, to the
extent possible in the circumstances, in such manner so as to minimize interference with Tenant’s
use and enjoyment of the Premises. In addition, Landlord and its agents have the right to enter
the Premises at all reasonable times and upon prior written notice to show the Premises to
prospective purchasers, lenders, or anyone having a prospective interest in the Premises, and,
during the last twelve (12) months of the Term or any renewal thereof, to show them to prospective
tenants. Within ten (10) days after Landlord’s written request, Tenant shall provide the name of
Tenant’s contact person for Landlord to provide notice to and to coordinate the



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showings permitted herein. Landlord will have the right at all times to enter the Premises
without advance notice in the event of an emergency affecting the Premises. Tenant shall have the
right to have a representative of Tenant accompany Landlord with respect to any entry onto the
Premises, and in any event during any entry onto the Premises Landlord shall: (i) comply with
Tenant’s reasonable security procedures, including, without limitation, that there may be safes,
vaults, and/or certain secured areas within the Premises that may not be accessed by Landlord
except in the event of an emergency posing an imminent danger to persons or property, and
(ii) minimize any interference with the conduct of Tenant’s business, prevent breaches in security
and avoid damages to the Premises or the equipment, fixtures, or personal property of Tenant.



     3.6 QUIET POSSESSION. As long as Tenant is not in default of the terms and conditions
of this Lease beyond any applicable cure or grace period, Tenant shall be entitled to peaceful and
quiet enjoyment of the Premises for the full Term without interruption or interference by Landlord
or any person claiming through or under Landlord.



     3.7 COVENANTS AND RESTRICTIONS. Tenant hereby acknowledges and agrees that the
Premises, and Tenant’s occupancy thereof, is subject to that certain Declaration of Covenants and
Restrictions recorded in Official Records Book 2873, Page 745 of the Public Records of Palm Beach
County, Florida (the “Declaration”), as the same has been and may be amended from time to time,
provided, however, that Landlord shall not agree to amend the Declaration or record any other
restrictions, agreements, or instruments in a manner which would materially and adversely affect
Tenant’s use and occupancy of the Premises under this Lease. In connection with Landlord’s
construction pursuant to the Construction Addendum, Landlord, at its expense, is responsible to
obtain any approvals as may be required pursuant to the Declaration.



     3.8 PARKING. During the Term, Tenant shall have an exclusive right to use all of the
parking spaces associated with the Premises. All motor vehicles (including all contents thereof)
shall be parked in such spaces at the sole risk of Tenant, its employees, agents, invitees, and
licensees, it being expressly agreed and understood that Landlord has no duty to insure any of said
motor vehicles (including the contents thereof), and that Landlord is not responsible for the
protection and security of such vehicles, or the contents thereof (without limiting the generality
of the foregoing, it being understood that this shall not be deemed to relieve Landlord of any
liability for any damage actually caused by the negligence or willful misconduct of Landlord or its
agents, employees, or contractors, except if covered by Tenant’s insurance).



4. LEASEHOLD IMPROVEMENTS AND TENANT ALTERATIONS.




     4.1 LEASEHOLD IMPROVEMENTS. The Leasehold Improvements (as defined in the
Construction Addendum) are to be constructed by Landlord pursuant to the terms and provisions of
the Construction Addendum. The Leasehold Improvements shall be owned by Tenant and shall become
the property of Landlord at the end of the Term (as may be extended) to the extent such Leasehold
Improvements then exist.




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     4.2 TENANT ALTERATIONS.



     (a) Except for the Leasehold Improvements constructed in accordance with the Construction
Addendum, Tenant will not make or allow to be made any: (i) structural alterations in or to the
Premises without Tenant first obtaining the written consent of Landlord, which consent may be
granted or withheld in the Landlord’s sole and absolute discretion (provided that if Landlord
withholds its consent to any alterations required by Applicable Laws, Tenant shall not be deemed to
be in breach of its obligations under Section 3.2 hereof); or (ii) any other alterations to the
Premises (i.e., other than those listed in clause (i) above), including, without limitation,
alterations to the Building Systems, without Tenant first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed (provided,
however, that Landlord’s consent shall not be required for interior, nonstructural alterations
which do not affect the Building Systems and which cost less than $250,000.00 per Building to
perform each alteration project, but Tenant shall notify Landlord of any such interior,
nonstructural alterations). For alterations that require Landlord’s consent, Landlord shall have
ten (10) business days within which to review any submission by Tenant to Landlord of the plans and
specifications therefor. If Landlord fails to respond within such period, then Tenant shall notify
Landlord in writing of its failure, and if Landlord fails to respond to Tenant within two (2)
business days after Landlord’s receipt of such notice, then Landlord’s consent will be deemed to be
granted. All Tenant alterations (structural, and/or Building Systems and/or exterior and/or
interior, nonstructural alterations) will be accomplished in a good and workmanlike manner, at
Tenant’s sole expense, lien-free, in conformity with all Applicable Laws, and by licensed
contractor(s) carrying the insurance required by this Lease (with certificates of insurance
delivered to Landlord upon written request during the course of the work; and if request is made
for insurance certificates following the end of the work, then such insurance certificates will be
delivered to the extent in Tenant’s possession). In addition to the foregoing, with respect to any
alterations to be performed by Tenant requiring Landlord’s consent: (x) all such Tenant
alterations will be made in accordance with plans and specifications approved in advance by
Landlord, such approval of plans and specifications to be granted or deemed granted as aforesaid in
this Section; and (y) by a general contractor approved by Landlord in accordance with subsection
(b), below; and (z) upon completion of any such work, Tenant shall provide Landlord with “as built”
plans, copies of all construction contracts directly between Tenant and such contractor(s), and
proof of payment for all labor and materials. Any Tenant alterations to the Premises made by or
installed by either party hereto will remain upon and be surrendered with the Premises and become
the property of Landlord upon the expiration or earlier termination of this Lease without credit to
Tenant; provided, however, Landlord, at its option, may require Tenant to remove any additions
and/or alterations in order to restore the Premises to the condition existing at the time Landlord
completed the Leasehold Improvements (reasonable wear and tear and tear and damage by casualty and
condemnation excepted), with all costs of removal, repair, restoration, or alterations to be borne
by Tenant, except for Leasehold Improvements (which Tenant shall have no obligation to remove) or
if at the time of granting Landlord’s consent to such alterations, Landlord specifically
acknowledged in writing that Tenant would not be responsible for removing such alterations. This
clause will not apply to moveable equipment, furniture, or moveable trade fixtures owned by Tenant,
which shall be removed by Tenant at the end of the Term.



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     (b) Without limiting the general requirements as to Tenant’s contractors as set forth in
subsection (a), above, with respect to Tenant alterations requiring Landlord’s consent, Landlord
shall have the right to approve Tenant’s general contractor, and subcontractors relating to
alterations affecting the structure and/or Building Systems, which approval shall not be
unreasonably withheld, conditioned, or delayed; provided however that Landlord may disapprove
Tenant’s general contractor or applicable subcontractors only if Landlord has reason to believe
that such general contractor is not qualified to do the applicable scope of work for the proposed
alteration.



     (c) If any alterations are to be performed by a subtenant that is not an Affiliate of Tenant,
Landlord reserves the right to require additional reasonable requirements in connection therewith,
such as additional information necessary to evaluate proposed contractors.



     4.3 CONSTRUCTION LIENS. Tenant will have no authority or power, express or implied,
to create or cause any construction lien or claim of any kind against the Premises or any portion
thereof. Tenant will promptly cause any such liens or claims to be released by payment, bonding or
otherwise within thirty (30) days after request by Landlord, and will indemnify Landlord against
losses arising out of any such claim including, without limitation, legal fees and court costs.
NOTICE IS HEREBY GIVEN THAT LANDLORD WILL NOT BE LIABLE FOR ANY LABOR, SERVICES, OR MATERIAL
FURNISHED OR TO BE FURNISHED TO TENANT, OR TO ANYONE HOLDING THE PREMISES THROUGH OR UNDER TENANT,
AND THAT NO CONSTRUCTION OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES, OR MATERIALS WILL ATTACH TO
OR AFFECT THE INTEREST OF LANDLORD IN THE PREMISES. TENANT WILL DISCLOSE THE FOREGOING PROVISIONS
TO ANY CONTRACTOR ENGAGED BY TENANT PROVIDING LABOR, SERVICES, OR MATERIAL TO THE PREMISES.



5. INSURANCE AND INDEMNITY.




     5.1 TENANT’S INSURANCE. Tenant will throughout the Term (and any other period when
Tenant is in possession of the Premises) carry and maintain, at its sole cost and expense, the
following types of insurance, which shall provide coverage on an occurrence basis, with respect to
the Premises, in the amounts specified and with such reasonable deductibles as would be carried by
a prudent tenant of a similar building, having regard to size, age, and location and in the form
hereinafter provided for:



     5.1.1 Commercial General Liability Insurance. Commercial general liability insurance
covering claims arising from bodily injury and property damage with a minimum limits of
$2,000,000.00 per occurrence and $5,000,000.00 general aggregate and insuring against legal
liability of the insured with respect to the Premises or arising out of the maintenance, use, or
occupancy thereof. The commercial general liability insurance policy shall include coverage of
contractual liabilities arising under this Lease pursuant to customary contractual liability
endorsements.



     5.1.2 Property Insurance. Special form property insurance on the Leasehold
Improvements, all for full replacement cost thereof, adjusted annually.



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     5.1.3 Automobile Liability Insurance. If Tenant owns or leases vehicles for use in
connection with the Premises, comprehensive automobile liability insurance with limits of not less
than $1,000,000.00 per occurrence for bodily injury, $500,000.00 per person and $100,000.00
property damage or a combined single limit of $1,000,000.00 covering vehicles owned or leased by
Tenant.



     5.1.4 Excess Liability Insurance. Umbrella liability insurance with a limit of not
less than $20,000,000.00 per occurrence.



     5.1.5 Business Interruption Insurance. Business interruption/extra expense coverage
in sufficient amounts to cover twelve (12) months of Base Rent.



     5.1.6 Workers’ Compensation and Employees’ Liability Insurance. Workers’ Compensation
Insurance covering all employees of Tenant, as required by the laws of the State of Florida and
Employers’ Liability coverage subject to a limit of no less than $100,000.00 each employee,
$100,000.00 each accident, and $1,000,000.00 policy limit.



     If (a) Tenant fails to take out or to keep in force any insurance referred to in this Section,
and (b) Tenant does not commence and continue to diligently cure such default within ten (10)
business days after written notice by Landlord to Tenant specifying the nature of such default,
then Landlord has the right, without assuming any obligation in connection therewith, to procure
such insurance at the sole cost of Tenant, and all outlays by Landlord shall be paid by Tenant to
Landlord without prejudice to any other rights or remedies of Landlord under this Lease. Tenant
shall not keep or use in the Premises any article which may be customarily prohibited by any fire
or casualty insurance policy in force from time to time covering the Premises.



     With respect to the insurance coverages required of Tenant under this Lease, Tenant shall have
the right to utilize a “blanket” or “umbrella” policy of insurance, provided that Tenant provides
Landlord with satisfactory evidence that (i) Landlord and its managing agent are an additional
insured under such blanket or umbrella policy, (ii) such blanket or umbrella policy expressly
references the Premises, and (iii) such blanket or umbrella policy contains a guaranteed amount of
insurance for the Premises, which guaranteed amount shall equal the amounts of coverage required
under this Lease.



     Tenant shall have the right to self insure any or all of its liabilities with respect to the
Premises so long as Tenant’s net worth exceeds $150,000,000.00. As used in this Lease, “self
insurance” shall mean that Tenant is itself acting as if though it were the insurance company
providing the insurance required under the provisions of this Lease, and Tenant shall pay any
amounts due in lieu of insurance proceeds which would have been payable if the insurance policies
had been carried, which amounts shall be treated as insurance proceeds for all purposes under this
Lease.



     5.2 LANDLORD’S INSURANCE. During the Term, Landlord will, at Tenant’s sole cost and
expense, carry and maintain the following types of insurance with respect to the Premises in such
amount or percentage of replacement value as required below or if not specified then as Landlord or
its insurance advisor deems reasonable in relation to the age, location, type of construction and
physical conditions of the Building and the availability of such insurance at



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reasonable rates: (i) special form property insurance on the Base Building, for full
replacement cost thereof, adjusted annually (excluding the Leasehold Improvements and any personal
property of Tenant); and (ii) commercial general public liability and property damage insurance
with respect to Landlord’s operations in or on the Premises, in at least the same limits and
coverages as required of Tenant above. Such insurance shall be in such reasonable amounts and with
such reasonable deductibles as would be carried by a prudent owner of a similar building, having
regard to size, age, and location (which deductibles shall be approved by Tenant, which approval
shall not be unreasonably withheld). Tenant shall be named as an additional insured under
Landlord’s liability policies. Landlord shall have the right to self insure any or all of its
liabilities with respect to the Premises so long as Landlord’s net worth exceeds $150,000,000.00.



     With respect to the insurance coverages required of Landlord under this Lease, Landlord shall
have the right to utilize a “blanket” or “umbrella” policy of insurance, provided that Landlord
provides Tenant with satisfactory evidence that (i) Tenant is an additional insured under such
blanket or umbrella policy, (ii) such blanket or umbrella policy expressly references the Premises,
and (iii) such blanket or umbrella policy contains a guaranteed amount of insurance for the
Premises, which guaranteed amount shall equal the amounts of coverage required under this Lease.



     5.3 TENANT’S CONTRACTORS’ INSURANCE. Tenant will cause all contractors performing
alterations to carry and maintain the following types of insurance, which shall provide coverage on
an occurrence basis, with respect to the Premises, in the amounts specified and with commercially
reasonable deductibles and in the form hereinafter provided for:



     5.3.1 Commercial General Liability Insurance. Commercial general liability insurance
covering claims arising from bodily injury and property damage with a minimum limits of
$1,000,000.00 per occurrence and $2,000,000.00 general aggregate.



     5.3.2 Automobile Liability Insurance. Comprehensive automobile liability insurance
with limits of not less than $1,000,000.00 per occurrence for bodily injury, $500,000.00 per person
and $100,000.00 property damage or a combined single limit of $1,000,000.00 covering vehicles owned
or leased by the contractor.



     5.3.3 Excess Liability Insurance. Solely as to Tenant’s general contractor in
connection with alterations affecting the structure and/or the Building Systems, umbrella liability
insurance with a limit of not less than $5,000,000.00 per occurrence.



     5.3.4 Workers’ Compensation and Employees’ Liability Insurance. Workers’ Compensation
Insurance covering all employees of the contractor, as required by the laws of the State of Florida
and Employers’ Liability coverage subject to a limit of no less than $100,000.00 each employee,
$100,000.00 each accident, and $1,000,000.00 policy limit.



     5.4 POLICY FORM. All policies referred to in this Section 5, above shall: (i) be
taken out with insurers licensed to do business in Florida having an A.M. Best’s rating of A-,
Class 8, or otherwise approved in advance by Landlord (in the case of insurance required to be
carried by Tenant or its contractors) or by Tenant (in the case of insurance required to be carried
by Landlord), which shall not be unreasonably withheld, delayed, or conditioned; (ii) name



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Landlord and Landlord’s property manager (if any) (in the case of insurance required to be
carried by Tenant or its contractors) or Tenant (in the case of insurance required to be carried by
Landlord) as additional insureds in connection with the general and excess liability policy only
plus the property insurance policy as to the Leasehold Improvements; and (iii) be non-contributing.
Insurance carried by Tenant and its contractors shall apply only as primary and not as excess to
any other insurance available to Landlord or any mortgagee of Landlord, and shall contain an
obligation of the insurers to notify the additional insureds by certified mail not less than thirty
(30) days prior to any material change, cancellation, or termination of any such policy.
Certificates of insurance on Acord Form 25-S (or equivalent form) on or before the Term
Commencement Date and thereafter at times of renewal or changes in coverage or insurer shall be
delivered to Landlord promptly upon request.



     5.5 RELEASE AND WAIVER OF SUBROGATION RIGHTS. The parties hereto, for themselves and
anyone claiming through or under them, hereby release and waive any and all rights of recovery,
claim, action, or cause of action, against each other, their respective agents, directors,
officers, and employees, for any property loss or property damage that may occur to the Premises or
the Buildings, and to all property, whether real, personal or mixed, located in the Premises or the
Buildings, by reason of any cause against which the releasing party is actually insured or,
regardless of the releasing party’s actual insurance coverage, against which the releasing party is
required to be insured pursuant to the provisions of Sections 5.1 or 5.2. This mutual release and
waiver shall apply regardless of the cause or origin of the property loss or damage, including
negligence of the parties hereto, their respective agents and employees. Each party agrees to
provide the other with reasonable evidence of its insurance carrier’s consent to such waiver of
subrogation upon request. This Section 5.5 supersedes any provision to the contrary which may be
contained in this Lease, including, without limitation, Section 5.6.



     5.6 INDEMNIFICATION OF THE PARTIES.



     (a) Tenant hereby agrees to indemnify, defend, and hold harmless Landlord from and against any
and all liability for any loss, injury or damage (excluding consequential damage), which shall
include, without limitation, all costs, expenses, court costs, and reasonable attorneys’ fees
imposed on Landlord by any person whomsoever that occurs in or at or about the Premises, except to
the extent any such loss, injury, or damage is (i) caused by or results from the negligence or
willful misconduct of Landlord, its employees, agents, or contractors, or (ii) expressly Landlord’s
responsibility pursuant to Section 3.3, above, or (iii) a loss, injury or damage that is included
in or covered by Tenant’s indemnification obligations as set forth in Section 3.3(c), above. The
commercial liability insurance that Tenant is required to carry pursuant to Section 5.1 of this
Lease shall include coverage of the foregoing contractual indemnity, pursuant to customary
contractual liability endorsements.



     (b) Landlord hereby agrees to indemnify, defend, and hold harmless Tenant from and against any
and all liability for any loss, injury or damage (excluding consequential damage), which shall
include, without limitation, all costs, expenses, court costs, and reasonable attorneys’ fees
imposed on Tenant by any person whomsoever that occurs in or at or about the Premises, to the
extent caused by or resulting from the negligence or willful misconduct of Landlord, its employees,
agents, or contractors. The commercial liability insurance that Landlord is required



- 17 -









 







to carry pursuant to Section 5.2 of this Lease shall include coverage of the foregoing
contractual indemnity, pursuant to customary contractual liability endorsements.



     (c) The provisions of this Section shall survive the expiration of the Term or earlier
termination of this Lease.



6. DAMAGE AND DESTRUCTION; CONDEMNATION.




     6.1 DESTRUCTION OR DAMAGE TO PREMISES.



     6.1.1 If the Premises are at any time damaged or destroyed in whole or in part by fire,
casualty, or other causes and if this Lease is not terminated pursuant to Section 6.1.2, Landlord
shall have thirty (30) days (the “Notice Period”) from such damage or destruction to cause the Base
Building Architect to determine and inform Tenant of the estimated time for repair and restoration
and notify Tenant whether Landlord will restore the Base Building to substantially the condition
which existed immediately prior to the occurrence of the casualty to the extent of Landlord’s
obligations under the Construction Addendum with respect to the Base Building. If the time
estimated to restore does not exceed one (1) year from the end of the Notice Period, Landlord shall
complete such repairs to the extent of insurance proceeds (but recognizing that Landlord is
obligated to maintain full replacement cost coverage as to the Base Building) within one (1) year
from the end of the Notice Period, subject to Excusable Delay (the “Repair Period”). If such
repairs have not been completed within the Repair Period to the extent of Landlord’s obligations
under the Construction Addendum with respect to the Base Building, and Tenant desires to terminate
this Lease as a result thereof, then Tenant must notify Landlord prior to Landlord’s completion of
the repairs of Tenant’s intention to terminate this Lease. Landlord shall then have thirty (30)
days after Landlord’s receipt of written notice of Tenant’s election to terminate to complete such
repairs (as evidenced by a certificate of completion and Landlord otherwise achieving Substantial
Completion of the Base Building). If Landlord does complete such repairs prior to the expiration
of such thirty (30) day cure period, Tenant shall have no such right to terminate this Lease;
provided, however this Lease shall be deemed terminated upon Landlord’s failure to complete such
repairs prior to expiration of the thirty (30) day period, whereupon the parties shall have no
further obligations under this Lease (except that Tenant shall, within sixty (60) days from the
date of termination, remove its personal property). In the event this Lease is not terminated,
Tenant shall, upon Substantial Completion of the Base Building by Landlord, promptly and
diligently, and at its sole cost and expense, repair and restore the Leasehold Improvements, and
any improvements to the Premises made by Tenant, to the condition which existed immediately prior
to the occurrence of the casualty to the extent of insurance proceeds (but recognizing that Tenant
is obligated to maintain full replacement cost coverage as to the Leasehold Improvements). If, in
the reasonable estimation of Base Building Architect as provided above, the Base Building cannot be
restored within one (1) year of such damage or destruction and if this Lease is not terminated
pursuant to Section 6.1.2, then either Landlord or Tenant may terminate this Lease as of a date
specified in such notice, which date shall not be less than thirty (30) nor more than ninety (90)
days after the date such notice is given. Until the restoration of the Base Building is complete,
there shall be an abatement or reduction of Base Rent in the same proportion that the square
footage of the Premises so damaged or destroyed and not reasonably capable of being used and
occupied for the Permitted Use, bears to the total square footage of the Premises, unless the
damaging event was caused by



- 18 -









 







the negligence (to the extent sufficient insurance proceeds are not received by Landlord in
connection therewith) or willful misconduct of Tenant, its employees, officers, agents, licensees,
invitees, assignees, subtenants, contractors or subcontractors, in which event there shall be no
such abatement and Tenant shall restore such damage at Tenant’s sole cost and expense.



     6.1.2 If the Premises are destroyed or damaged during the last two (2) years of the Term, then
in addition to the determination to be made by the Base Building Architect pursuant to Section
6.1.1, Landlord shall also cause the Base Building Architect to determine and inform Tenant within
the Notice Period of the estimated cost of repair. If the estimated cost of repair of the Base
Building exceeds ten (10%) percent of the annual Base Rent then remaining to be paid by Tenant for
the balance of the Term, Landlord or Tenant may at its option terminate this Lease by giving
written notice to the other party of its election to do so within thirty (30) days after receipt of
the Base Building Architect’s determination, whereupon the parties shall have no further
obligations under this Lease (except that Tenant shall, within sixty (60) days from the date of
termination, remove its personal property). If neither party shall so elect to terminate this
Lease, the repair of such damage shall be governed by other provisions of this Section. However,
if Landlord shall exercise its right of termination pursuant to this Section 6.1.2 and at that time
Tenant shall have a remaining Renewal Option pursuant to Rider Number 1 hereto, then Tenant may
render Landlord’s notice of termination null, void, and of no further force or effect, provided
that Tenant, within twenty (20) days of receipt of the notice, shall exercise such Renewal Option.



     6.2 CONDEMNATION.



     6.2.1 Total or Partial Taking. If (i) the whole of the Premises or such portion
thereof which would materially and adversely affect the continued operations of Tenant at the
Premises; or (ii) any material portion of the parking area (including, without limitation, any
material portion of a parking structure or facility) on the Property (provided Landlord does not
make reasonable alternate parking arrangements for Tenant in lieu thereof), in Landlord’s and/or
Tenant’s reasonable business judgment, shall be taken by any public authority under the power of
eminent domain or sold to public authority under threat or in lieu of such taking, then either
party may terminate this Lease and the Term shall cease as of the day possession or title shall be
taken by such public authority, whichever is earlier (“Taking Date”), whereupon the Rent shall be
paid up to the Taking Date with a refund by Landlord of any Rent paid for any period subsequent to
the Taking Date. If less than the whole of the Premises, or less than such portion thereof as will
make the Premises unusable as of the Taking Date (as set forth in subsections (i) and (ii) above),
is taken, Base Rent and other charges payable to Landlord shall be reduced (x) in proportion to the
amount of the Premises taken, if square footage of a Building is taken, or (y) in the proportion
that the fair market value of the Premises taken bears to the total fair market value of the
Premises prior to the Taking, as equitably determined by Landlord. If this Lease is not
terminated, Landlord shall repair any damage to the Premises caused by the taking to the extent
necessary to make the Premises reasonably tenantable within the limitations of the available
compensation awarded for the taking (exclusive of any amount awarded for land) to the extent of
Landlord’s obligations under the Construction Addendum.



     6.2.2 Award. All compensation awarded or paid upon a total or partial taking of the
Premises or Buildings including the value of the leasehold estate created hereby shall belong to



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and be the property of Landlord without any participation by Tenant; Tenant shall have no
claim to any such award based on Tenant’s leasehold interest. However, nothing contained herein
shall be construed to preclude Tenant, at its cost, from independently prosecuting any claim
directly against the condemning authority in such condemnation proceeding for damage to, or cost of
removal of, stock, trade fixtures, furniture, and other personal property belonging to Tenant,
Tenant’s moving expenses and other relocation damages, and the unamortized cost of any improvements
paid for by Tenant, including the Leasehold Improvements; provided, however, that no such claim
shall diminish or otherwise adversely affect Landlord’s award or the award of any mortgagee.



7. MAINTENANCE AND REPAIRS; SERVICES.




     7.1 LANDLORD’S OBLIGATIONS. Landlord at its sole expense shall keep the foundation,
roof, floor slabs, exterior walls and ceiling slabs and other structural portions of the Buildings
in good order, condition, and repair and the cost of such maintenance and repairs shall not be
charged to Tenant as Additional Rent (except for (a) the cost of maintenance and repair of any
structural alterations which were requested by Tenant in accordance with Section 4.2 (excluding any
“Leasehold Improvements” (as defined in the Construction Addendum) made by or on behalf of Tenant,
the maintenance and repair of which shall be performed and paid by Tenant), and (b) general
maintenance and repairs to the roof (as opposed to replacement), which may be passed-through to
Tenant as Additional Rent). Landlord shall not be obligated to make any repairs under this Section
7.1 until a reasonable time after receipt of a written notice (or, in the event of an emergency,
telephonic or other reasonable notice) from Tenant specifying the need for such repairs although
Landlord will use all diligent efforts to complete any such repairs within ten (10) business days
after such notice. In addition, but subject nevertheless to any applicable waiver of subrogation
and except to the extent paid for by insurance, Landlord shall, at Tenant’s expense, repair any
damage to the roof, foundation, or structural portions or walls of the Premises and Buildings
caused by the negligence or willful misconduct of Tenant or its employees, officers, agents,
licensees, invitees, assignees, subtenants, contractors, or subcontractors. Tenant shall pay
Landlord a fee equal to five (5%) percent of the cost of such work to compensate Landlord for
coordination and supervision of the integration of such work.



     7.2 TENANT’S OBLIGATIONS. Subject to Tenant’s obligation to comply with Section 4.2
hereof and subject to Landlord’s warranty and other obligations set forth in the Construction
Addendum, Tenant at its sole cost and expense shall keep the Building Systems, interior walls and
ceilings, electric light fixtures, bulbs, tubes and tube casings, doors, finished floors and floor
coverings, windows, floor and wall coverings, dock doors, loading ramps, levelers, plumbing
fixtures, entrances, sidewalks, corridors, landscaping, parking areas and other facilities from
time to time comprising the Premises (as well as Tenant’s furniture, fixtures, equipment, and other
personal property in or at the Premises), in good order, condition, and repair as befitting a
comparable office building in Boca Raton. With respect to Building Systems other than plumbing and
other de minimus services provided directly by Tenant and/or its facility manager, Tenant, at its
expense, shall maintain in effect industry-standard maintenance agreements with licensed and
insured companies. Landlord shall extend and assign (after the expiration of the Warranty Period
(as defined in the Construction Addendum)) to Tenant the benefit from warranties on such items, if
any, that have been made by Landlord’s contractors or the manufacturer of such items. To the
extent such warranties are not assignable, Landlord shall



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upon request of Tenant use reasonable efforts to enforce same for the benefit of Tenant.
Landlord shall obtain and assign to Tenant on the Term Commencement Date a manufacturer’s warranty
covering the HVAC equipment for at least one (1) year with respect to parts and labor and for at
least five (5) years with respect to the compressor units. Tenant acknowledges and agrees that
Landlord shall have no obligation to perform any maintenance, repair, replacement, or other
structural or non-structural alterations in or to the Buildings or the Premises except as expressly
set forth in Section 7.1 and in Sections 3.2, 6, and 11.5. Notwithstanding the foregoing, Landlord
shall be responsible for the cost of any damage to the Premises caused by the negligence or willful
misconduct of Landlord, its employees, agents, or contractors, but subject nevertheless to any
applicable waiver of subrogation and except to the extent paid for by insurance.



     Notwithstanding anything to the contrary contained herein, if Tenant fails to comply with its
obligations under this Section 7.2 and such failure continues for a period of thirty (30) days
after Tenant’s receipt of written notice from Landlord, then in addition to Landlord’s rights and
remedies under Section 8.2 hereof, Landlord shall have the right, but not the obligation, to
perform such maintenance, repair, and/or replacement, as may be necessary or required, as
determined by Landlord in its sole but reasonable discretion, and Tenant shall reimburse to
Landlord the costs and expenses incurred by Landlord in connection therewith within thirty (30)
days after written demand by Landlord, together with reasonable supporting documentation therefor.
Notwithstanding the foregoing, if the performance of such obligation by Tenant would reasonably
require more than thirty (30) days to complete, Tenant shall have a reasonable time to perform in
order to cure such default provided Tenant commences to cure within such thirty (30) day period and
thereafter diligently prosecutes such cure to completion.



     7.3 CONDITION UPON TERMINATION. Upon the termination of this Lease, Tenant shall
surrender the Premises to Landlord, broom clean and in the same condition as received except for
reasonable wear and tear, casualty damage which Tenant is not required to repair, condemnation,
Leasehold Improvements and alterations not required to be removed as specifically permitted
hereunder, and conditions caused by Landlord’s failure to repair as expressly required hereunder.
Tenant shall repair, at Tenant’s expense, any damage to the Premises or Buildings caused by
Tenant’s removal of any of Tenant’s personal property, including but not limited to furniture,
machinery, equipment and signage. In no event, however, shall Tenant remove any of the following
materials or equipment without Landlord’s prior written consent: any power wiring or power panels;
lighting or lighting fixtures; millwork and cabinetry; wall coverings; drapes, blinds, or other
window coverings; carpets or other floor coverings; base building heaters, air conditioners, or any
other heating or air conditioning equipment (not to include supplemental hvac units installed by or
for Tenant); fencing or security gates; plumbing fixtures, water fountains; or other similar
building operating equipment.



8. DEFAULT AND REMEDIES.




     8.1 DEFAULT BY TENANT. Each of the following will be an “Event of Default” by Tenant
under this Lease:



     (a) Failure to pay when due any installment of Rent or any other payment required pursuant to
this Lease. Notwithstanding the foregoing, prior to such failure being deemed an



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Event of Default, Landlord will provide Tenant with ten (10) days’ written notice and
opportunity to cure such failure; provided, however, that in no event shall Landlord be obligated
to provide such written notice more than two (2) times in any twelve (12) month period (the
foregoing shall not be deemed to be a waiver of any statutory notice requirements imposed upon
Landlord in order to commence any eviction proceedings under Florida Statutes);



     (b) The filing by or against Tenant of a petition for bankruptcy or insolvency under any
applicable federal or state bankruptcy or insolvency law (unless, in the case of a petition filed
against Tenant, such petition is not dismissed within seventy-five (75) days from the filing
thereof); an adjudication of bankruptcy or insolvency or an admission that it cannot meet its
financial obligations as they become due; or the appointment or a receiver or trustee for all or
substantially all of the assets of Tenant;



     (c) A transfer by Tenant in fraud of creditors or an assignment for the benefit of creditors;



     (d) Any act which results in a lien being filed against the Premises and is not discharged as
provided in Section 4.3;



     (e) The liquidation, termination, or dissolution of Tenant, or if Tenant is a natural person,
the death of Tenant; and;



     (f) Failure to cure a breach of any non-monetary provision of this Lease within thirty (30)
days after written notice thereof to Tenant; provided, however, that if such default reasonably
requires more than thirty (30) days to cure, Tenant shall have a reasonable time to cure the
default provided Tenant commences to cure within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion.



     8.2 REMEDIES. Upon the occurrence of any Event of Default by Tenant, Landlord shall
be entitled to the following remedies to the extent permitted by Applicable Laws:



     (a) Landlord may terminate this Lease and dispossess Tenant;



     (b) Landlord may, without terminating or canceling this Lease, declare all Rent to be paid
pursuant to this Lease for the remainder of the Term to be immediately due and payable, provided,
however, that Landlord shall only have the right to accelerate the Rent due under this Lease if
Tenant has failed to make at least two (2) month’s consecutive Base Rent payments and Tenant fails
to bring its account payment status current on or before the due date of its next Base Rent
payment, and Landlord may only collect from Tenant an amount of accelerated Rent equal to the
amount of Rent due for the lesser of: (i) the remainder of the Term; or (ii) a period of four (4)
years following the date which Landlord makes its claim for accelerated Rent (it being understood
that, if, following such four (4) year period (provided the Term has not so expired), Landlord
shall have the continuing right to so accelerate for the foregoing time period(s) until the Term
has so expired). Any claim by Landlord for accelerated Rent shall be in addition to, not in
substitution for, any other claim for Rent which has accrued as of the date Landlord makes the
claim for accelerated Rent and shall be discounted to present value as of the time of such
acceleration on the basis of a four (4%) percent per annum discount from the respective dates that
such amount should have been paid hereunder. Upon Landlord’s acceleration of the Rent as



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provided herein, and if Landlord shall have repossessed the Premises for the account of
Tenant, Landlord shall thereafter use reasonable efforts to mitigate Landlord’s damages hereunder
with respect to the Premises. Notwithstanding anything contained herein to the contrary, in the
event that Landlord re-lets the Premises for the remainder of the Term, then Landlord’s damages
shall be deemed to be the difference between the rent payable under the new lease for the remainder
of the Term (after the deduction of all reletting expenses, including, without limitation,
brokerage fees, free rental periods, attorneys’ and paralegals’ fees, build-out allowances, and all
other reasonable costs of reletting) and the entire accelerated Rent due for the remainder of the
Term, discounted to present value as provided above, which amount shall be immediately due and
payable by Tenant as and for liquidated damages hereunder, whereupon, after the payment by Tenant
to Landlord of such amount and all other amounts due under this Lease, then Tenant shall thereafter
be released of all liability hereunder;



     (c) Landlord may elect to repossess the Premises and to relet the Premises for Tenant’s
account, holding Tenant liable in damages for all expenses incurred in any such reletting and for
any difference between the amount of Rent received from such reletting and the amount due and
payable under the terms of this Lease; and



     (d) Landlord may enter the Premises and take any actions required of Tenant under the terms of
this Lease, and Tenant shall reimburse Landlord on demand for any reasonable expenses that Landlord
may incur in effecting compliance with Tenant’s obligations under this Lease, and Landlord shall
not be liable for any damages resulting to Tenant from such action, so long as Landlord acts
reasonably.



     The above remedies shall be cumulative and shall not preclude Landlord from pursuing any other
remedies permitted by law or in equity. Landlord’s election not to enforce one or more of the
remedies upon an Event of Default shall not constitute a waiver.



     8.3 COSTS.



     (a) Tenant shall pay to Landlord on demand all reasonable costs incurred by Landlord,
including reasonable attorneys’ fees and costs (whether or not suit is actually brought or whether
incurred in preparation for or at trial, on appeal, or in bankruptcy), incurred by Landlord in
enforcing any of the obligations of Tenant under this Lease. In addition, upon any Event of
Default by Tenant, Tenant shall also be liable to Landlord for the expenses to which Landlord may
be put in re-entering the Premises, reletting the Premises, and putting the Premises into the
condition necessary for such reletting (including reasonable attorneys’ fees and disbursements,
marshall’s fees, and brokerage fees, in so doing), and any other expenses reasonably incurred by
Landlord.



     (b) Landlord shall pay to Tenant on demand all reasonable costs incurred by Tenant, including
reasonable attorneys’ fees and costs (whether or not suit is actually brought or whether incurred
in preparation for or at trial, on appeal, or in bankruptcy), incurred by Tenant in enforcing any
of the obligations of Landlord under this Lease.



     (c) Notwithstanding the foregoing or anything to the contrary contained in this Lease, in the
event of any litigation between Landlord and Tenant arising out of this Lease or Tenant’s



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use and occupancy of the Premises, the prevailing party shall be entitled to recover its costs
and expenses incurred in such litigation, including reasonable attorneys’ fees (whether or not suit
is actually brought or whether incurred in preparation for or at trial, on appeal, or in
bankruptcy).



     8.4 WAIVER. No delay or omission by Landlord or Tenant in exercising a right or
remedy shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default.



     8.5 DEFAULT BY LANDLORD. In the event of any default by Landlord, Tenant shall have
all remedies available at law or in equity, but prior to any exercise of any remedy, Tenant will
give Landlord written notice specifying such default with particularity, and Landlord shall have a
period of thirty (30) days following the date of such notice in which to cure such default;
provided, however, that if such default reasonably requires more than thirty (30) days to cure,
Landlord shall have a reasonable time to cure the default provided Landlord commences to cure
within such thirty (30) day period and thereafter diligently prosecutes such cure to completion.
Unless and until Landlord fails to cure such default in accordance with the foregoing sentence,
Tenant shall not have any remedy or cause of action by reason thereof. Notwithstanding anything
contained herein to the contrary, Tenant’s remedies hereunder shall not include termination unless
Landlord’s default (after the expiration of the foregoing notice and cure period) results in a
construction eviction pursuant to and in accordance with the requirements of Florida law.



     In addition, if there is an interruption in an essential Building service (such as elevators,
electricity, or HVAC), and such interruption (i) is caused by the negligence or willful misconduct
of Landlord, its agents, employees, or contractors, and (ii) renders all or any portion of the
Premises untenantable, and (iii) continues for a period of seven (7) consecutive days after
Landlord’s receipt of written notice from Tenant, then so long as the correction of the problem is
within Landlord’s reasonable control, Tenant shall be entitled to an abatement of Base Rent for
each day that the Premises are untenantable with respect to the portion of the Premises that is
untenantable (provided, however that so long as one (1) passenger or freight elevator servicing
each Building is in working condition, then the Premises shall not be deemed to be untenantable as
regarding access in connection herewith).



     8.6 NO PERSONAL LIABILITY OF LANDLORD. Notwithstanding any provision of this Lease,
Landlord shall not at any time have any personal liability under this Lease. In the event of any
breach or default by Landlord of any term or provision of this Lease, Tenant agrees to look solely
to the equity or interest then-owned by Landlord in the Premises, and in no event shall any
deficiency judgment be sought or obtained against Landlord. Notwithstanding the foregoing, if
Tenant has received a final, non-appealable judgment for damages against Landlord as a result of an
uncured default by Landlord under this Lease, and, despite Tenant’s use of all reasonable efforts
to levy against Landlord’s interest in the Premises, such judgment has nonetheless not been
satisfied within sixty (60) days after the date that the judgment became final and non-appealable,
then Tenant shall have the right to deduct the unpaid amount of such judgment against the Base Rent
to become due under this Lease (plus interest as set forth in the judgment), until fully credited.



     8.7 TENANT’S RIGHT TO CURE. Notwithstanding anything to the contrary contained in
this Section, if Landlord is in default of the terms and conditions of this Lease



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(including a breach of a representation) beyond any applicable cure or grace period (except
that, in the event of a bona fide emergency, Tenant is only required to give Landlord reasonable
notice under the circumstances), Tenant may cure such default and thereafter Landlord shall
reimburse Tenant for all reasonable costs and expenses incurred by Tenant which shall be payable as
a cash payment within thirty (30) days after written demand by Tenant. If Landlord fails to pay
such costs and expenses within such thirty (30) day period, Tenant may send a reminder notice to
Landlord, and if Landlord fails to pay within five (5) business days after receipt of the reminder
notice, then Tenant may deduct such costs and expenses from the installment(s) of Base Rent next
coming due (plus interest at the Default Interest Rate), until fully credited.




     8.8 CONSEQUENTIAL DAMAGES. Under no circumstances will either party to this Lease be
entitled to seek or recover special, indirect, consequential, or punitive damages, or lost profits,
on account of default or breach hereunder.



9. PROTECTION OF LENDERS.




     9.1 SUBORDINATION AND ATTORNMENT. Provided that the holder of any mortgage
encumbering the Premises or any ground or underlying lease delivers to Tenant a Subordination,
Non-Disturbance, and Attornment Agreement (“SNDA”) as described below, this Lease shall be subject
and subordinate at all times to the terms of such ground or underlying lease which now exists or
may hereafter be executed affecting the Premises under which Landlord shall claim, and to the liens
of such mortgage in any amount or amounts whatsoever now or hereafter existing encumbering the
Premises, and to all modifications, renewals, and replacements thereto. If Landlord’s interest in
the Premises is acquired by any ground lessor, mortgagee, or purchaser at a foreclosure sale or
transfer in lieu thereof, Tenant shall attorn to the transferee of or successor to Landlord’s
interest in the Premises and recognize such transferee or successor as Landlord under this Lease in
accordance with the applicable SNDA. Notwithstanding the foregoing, any mortgagee under any
mortgage shall have the right at any time to subordinate any such mortgage to this Lease on such
terms and subject to such conditions as the mortgagee in its discretion may consider appropriate.



     Landlord represents and warrants to Tenant that, as of the Effective Date of this Lease, no
mortgages or ground leases encumber Landlord’s title to the Property.



     Any subordination of this Lease to a mortgage or any ground lease shall be conditioned on
Tenant obtaining a SNDA from each and every mortgagee and ground lessor, such SNDA to be in form
and content reasonably acceptable to Tenant and the applicable mortgagee and ground lessor. Tenant
agrees that an acceptable form of SNDA is attached hereto and made a part hereof as Exhibit “G.”
Such form is not intended to be the only form that would be acceptable to Tenant and/or deemed to
be reasonable. Any such SNDA will include a provision to the effect that casualty and condemnation
proceeds will be utilized to the extent required in this Lease and not to pay down the applicable
loan to Landlord or for any other purpose, provided that (i) at the time that Landlord delivers the
applicable SNDA to Tenant: (x) Tenant’s net worth exceeds $150,000,000.00; and (y) no Event of
Default is then-continuing, and (ii) at the time of the casualty or condemnation, no Event of
Default is then-continuing.




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     9.2 ESTOPPEL CERTIFICATES. Within fifteen (15) days of receipt of a written request
from Landlord, any lender or prospective lender of the Premises, Tenant shall deliver an estoppel
certificate, attaching a true and complete copy of this Lease, including all amendments relative
thereto, and certifying with particularity, among other things, (i) a description of any renewal or
expansion options, if any; (ii) the amount of Rent currently and actually paid by Tenant under this
Lease; (iii) that this Lease is in full force and effect as modified; (iv) whether Tenant is in
possession of the Premises; (v) stating whether Tenant or, to the best of Tenant’s actual knowledge
as of the date of execution of the estoppel certificate, Landlord, is in default under this Lease
and, if so, summarizing such default(s); and (vi) stating whether Tenant or, to the best of
Tenant’s actual knowledge as of the date of execution of the estoppel certificate, Tenant has any
offsets or claims against Landlord and, if so, specifying with particularity the nature and amount
of such offset or claim. Landlord shall deliver a similar estoppel certificate within fifteen (15)
days of receipt of a written request from Tenant, any lender or prospective lender of Tenant or any
permitted assignee or permitted subtenant of Tenant.



     9.3 TENANT’S FINANCIAL CONDITION.



     (a) Within sixty (60) days after the end of each fiscal year, Tenant shall deliver to Landlord
a copy of Tenant’s audited financial statements for Tenant’s most recently completed fiscal year,
prepared by independent certified public accountants in accordance with generally accepted
accounting principles. The foregoing financial statements may also be required by Landlord from
any proposed assignee of Tenant, or from any proposed subtenant which will occupy more than 25,000
square feet of the Premises. Tenant represents and warrants to Landlord that each such financial
statement is a true and accurate statement in all material respects as of the date of such
statement and the same shall be similarly certified by the proposed assignee or subtenant, as
applicable. All financial statements shall be confidential and shall be used only for the purposes
set forth herein. Tenant or a proposed assignee of Tenant, or subtenant which will occupy more
than 25,000 square feet of the Premises shall not have any obligation to furnish the financial
statements set forth above in the event that the applicable party that would otherwise be required
to furnish such financial statements is a publicly traded company on a stock exchange which is
subject to regulation by the Securities and Exchange Commission and is current in all required
filings. If the financial statements to be provided herein are from a subsidiary, having a parent
as a publicly traded entity, then the financial statements that are delivered hereunder may be
prepared on a consolidated basis with the parent entity, so long as financial statements from the
subsidiary are not otherwise available and are prepared on a consolidating basis.



     (b) If at any time during the Term Tenant does not have a long-term credit rating of both (i)
Baa3 or higher by Moody’s Investors Service (“Moody’s”) (or its equivalent, if Moody’s revises its
credit ratings), and (ii) BBB- or higher by Standard & Poor’s Rating Group (“Standard & Poor’s”)
(or its equivalent, if Standard & Poor’s revises its credit ratings), then Tenant shall deliver, or
cause to be delivered to Landlord, a security deposit in the amount of four (4) months of Base Rent
at the monthly Base Rent payable for the first year of the Term. The security deposit shall, at
Tenant’s sole option, either be (i) a cash deposit to be held in escrow by a third party escrow agent pursuant to an escrow agreement reasonably acceptable to the parties, or
(ii) in the form of a Letter of Credit, which Letter of Credit shall be in a form reasonably
acceptable to Landlord.



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     10. TELECOMMUNICATIONS.



     (a) Tenant acknowledges and agrees that all telephone and telecommunications services desired
by Tenant shall be ordered and utilized at the sole expense and discretion of Tenant. Tenant’s
telecommunications equipment, wires, conduit, and cabling (collectively, “Tenant’s
Telecommunications Equipment”) shall be installed and operated in accordance with Applicable Laws
(including, without limitation, those of the Federal Communications Commission (“FCC”), the
Occupational Safety and Health Administration (“OSHA”), and the Federal Aviation Administration
(“FAA”)), and Tenant, at its expense, shall obtain all permits, licenses, variances,
authorizations, and approvals that may be required in order to install and operate Tenant’s
Telecommunications Equipment. Landlord shall have no responsibility for the maintenance of
Tenant’s Telecommunications Equipment or for any infrastructure to which Tenant’s
Telecommunications Equipment may be connected. Tenant agrees that, to the extent any such service
is interrupted, curtailed, or discontinued from any cause whatsoever, except to the extent caused
by the negligence or willful misconduct of Landlord or its agents, employees, or contractors,
Landlord shall have no obligation or liability with respect thereto and it shall be the sole
obligation of Tenant at its expense to obtain substitute service.



     (b) Any and all Tenant’s Telecommunications Equipment installed in the Buildings by or on
behalf of Tenant shall be removed prior to the expiration or earlier termination of the Term, by
Tenant at its sole cost. Landlord and Tenant shall have the right to agree, however, prior to the
expiration or earlier termination of the Term, for Tenant to abandon and leave in place, without
additional payment to Tenant or credit against Base Rent or Additional Rent, any and all Tenant’s
Telecommunications Equipment and related infrastructure, or selected components thereof.



     (c) Notwithstanding anything contained in this Lease to the contrary, Tenant shall have the
exclusive right to install, maintain, and remove on the roofs of the Buildings satellite dishes or
other similar devices, such as antennae, for the purpose of receiving and sending radio,
television, computer, telephone, or other communication signals (and including the installation of
all necessary cables, wires, and transformers), together with the right to the use of the conduits,
pipes, risers, and shafts within the Buildings for the installation of cables, wiring, and other
equipment therein in connection with the operation of all such devices (the foregoing facilities
that are installed by or on behalf of Tenant are hereby called the “Tenant’s Rooftop Communications
Equipment,” which shall be deemed to include such similar equipment to be installed by any
sublessee, provided, however, that, in no event may Landlord or Tenant allow any third parties
(e.g., subtenants and licensees) to utilize the roof of the Buildings for the installation,
maintenance, and operation of Tenant’s Rooftop Communication Equipment or other similar equipment,
other than bona fide subtenants not primarily engaged in the business of telecommunications and
occupying all or a portion of the interior of the Premises pursuant to a permitted sublease or a
sublease which has been approved by Landlord (and which sublease shall expressly include the right
to install Tenant’s Rooftop Communication Equipment or similar equipment), subject to Tenant’s
obligation to comply with all Applicable Laws and the Declaration with respect to the installation, maintenance, and operation of Tenant’s Rooftop
Communication Equipment or such other similar equipment. Tenant shall advise Landlord at least ten
(10) business days in advance of the planned installation of Tenant’s Rooftop



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Communications Equipment, and if required by Landlord, such installation shall be done by the roofing company
which provides the roof warranty for the Buildings and in such a manner so as to not invalidate
such warranty. Except to the extent caused by (i) the roofing company installing Tenant’s Rooftop
Communications Equipment if required by Landlord, and/or (ii) Landlord, it’s agents, or employees,
Tenant shall be responsible for any damage to the Buildings caused by installing or maintaining
Tenant’s Rooftop Communications Equipment. At the expiration or earlier termination of this Lease,
Tenant, at its expense, shall remove Tenant’s Rooftop Communications Equipment; provided, however,
Landlord and Tenant shall have the right to agree, prior to the expiration or earlier termination
of the Term, for Tenant to abandon and leave in place, without additional payment to Tenant or
credit against Base Rent or Additional Rent, any and all Tenant’s Rooftop Communications Equipment
and related components thereof. Any work required to restore the roof or any other part of the
Buildings or Property from any damage occasioned by the installation, maintenance, or removal of
Tenant’s Rooftop Communications Equipment shall be borne by Tenant. The installation, maintenance,
and removal of Tenant’s Communications Equipment shall be subject to the obligations imposed upon
Tenant in this Lease with respect to Tenant’s use and occupancy of the Premises; provided, however,
that there shall be no additional consideration due from Tenant with respect to the rights granted
to Tenant pursuant to this Section.




     (d) Notwithstanding anything herein to the contrary, Landlord shall have no right to install,
maintain, and operate telecommunications equipment in the Buildings (including the rooftops
thereof), without Tenant’s prior written consent, which consent may be withheld in Tenant’s sole
and absolute discretion.



     11. MISCELLANEOUS PROVISIONS.



     11.1 LANDLORD’S LIABILITY; CERTAIN DUTIES. As used in this Lease, the term “Landlord”
means only the current owner or owners of the fee title to the Premises or the leasehold estate
under a ground lease of the Premises at the time in question. Each landlord is obligated to
perform the obligations of Landlord under this Lease only during the time such landlord owns such
interest or title. Any landlord who transfers its title or interest is relieved of all liability
with respect to the obligations of Landlord under this Lease to be performed on or after the date
of transfer, provided that the transferee expressly assumes, in writing, all obligations of
Landlord arising from and after the date of transfer. However, each landlord shall deliver to its
transferee all funds previously paid by Tenant, if such funds have not yet been applied under the
terms of this Lease.



     11.2 INTERPRETATION. The captions of the Articles or Sections of this Lease are to
assist the parties in reading this Lease and are not a part of the terms or provisions of this
Lease. Whenever required by the context of this Lease, the singular shall include the plural and
the plural shall include the singular. The masculine, feminine, and neuter genders shall each
include the other. This Lease will not be construed more or less favorably with respect to either
party as a consequence of this Lease or various provisions hereof having been drafted by one of the
parties hereto.



     11.3 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease is the only
agreement between the parties pertaining to the lease of the Premises and no



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other agreements either oral or otherwise (including, without limitation, all prior agreements, proposals, letters
of intent and understandings), are effective and all are merged into the terms and provisions of
this Lease, unless otherwise expressly set forth herein. Without limiting the generality of the
foregoing, that certain Development Agreement dated October 30, 2006 between Tenant and Boca 11 B
LLC, Boca 11 C & D, and Boca 11 E & F LLC (affiliates of Landlord) is terminated and of no further
force or effect. All amendments to this Lease shall be in writing and signed by all parties. Any
other attempted amendment shall be void.




     11.4 NOTICES. Any payment, notice, or document required or permitted to be delivered
by the terms of this Lease shall be delivered by overnight delivery service or sent by certified
mail, return receipt requested, addressed as follows:



	 	 	 
	     Landlord’s address

     for notices:

	 	Boca 54 North LLC
	 

	 	c/o Codina Development Corporation
	 

	 	355 Alhambra Circle, Suite 900
	 

	 	Coral Gables, Florida 33134
	 

	 	Attention: Jose Hevia, President
	 
	 	 
	     with copies to:

	 	Codina Group, Inc.
	 

	 	355 Alhambra Circle, Suite 900
	 

	 	Coral Gables, Florida 33134
	 

	 	Attention: Kolleen O.P. Cobb, General Counsel
	 
	 	 
	 

	 	and
	 

	 	Boca 54 North LLC
	 

	 	c/o Teachers Insurance and Annuity
	 

	 	     Association of America
	 

	 	730 Third Avenue
	 

	 	New York, NY 10017
	 

	 	Attention: Harry St. Clair, Director
	 
	 	 
	 

	 	and
	 

	 	Boca 54 North LLC
	 

	 	c/o Teachers Insurance and Annuity
	 

	 	     Association of America
	 

	 	8500 Andrew Carnegie Boulevard
	 

	 	Charlotte, North Carolina 28262
	 

	 	Mail Stop: C3-08
	 

	 	Attention: Suman Gera
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Akerman Senterfitt
	 

	 	One Southeast Third Avenue, 28th Floor
	 

	 	Miami, Florida 33131
	 

	 	Attention: Ronald A. Kriss, Esq.






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	Landlord’s address
	 	 
	for Rent payments:

	 	c/o Codina Development Corporation
	 

	 	355 Alhambra Circle, Suite 900
	 

	 	Coral Gables, Florida 33134
	 

	 	Attention: Accounting (Boca 54/Office Depot)
	 
	 	 
	Tenant’s address
	 	 
	for notices prior
	 	 
	to occupancy:

	 	Office Depot, Inc.
	 

	 	2200 Old Germantown Road
	 

	 	Delray Beach, Florida 33445
	 

	 	Attention: David C. Fannin, Executive Vice
	 

	 	                       President and General Counsel
	 
	 	 
	with copies to:

	 	Office Depot, Inc.
	 

	 	2200 Old Germantown Road
	 

	 	Delray Beach, Florida 33445
	 

	 	Attention: Stephen R. Calkins, Senior Managing Counsel
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Proskauer Rose LLP
	 

	 	2255 Glades Road, Suite 340 West
	 

	 	Boca Raton, Florida 33431
	 

	 	Attention: Christopher C. Wheeler, Esq.






     Notices to Tenant shall be delivered to the address above until Tenant occupies the Premises
for the conduct of business operations, after which the address of the Premises shall be Tenant’s
address for notice purposes. All notices shall be effective upon delivery or refusal of delivery.
Either party may change its notice address upon written notice to the other party, given in
accordance herewith by an authorized officer, partner, or principal.



     11.5 STATUTORY RADON GAS NOTICE; INDOOR AIR QUALITY.



     11.5.1 Radon Gas Notice. Section 404.056, Florida Statutes, requires the following
notice to be provided with respect to the contract for sale and purchase of any building, or a
rental agreement for any building: 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 health department.



     11.5.2 Indoor Air Quality.



     (a) Except for conditions resulting from Landlord’s defective construction (which for purposes
of this Section is deemed to include Landlord’s failure to construct the Base Building in
accordance with the Base Building Plans or the Leasehold Improvements in accordance with the
Leasehold Improvement Plans (as such terms are defined in the Construction Addendum),



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including performance criteria for Building Systems as expressly set forth in the Base Building Plans),
Tenant shall be solely responsible to ensure that the air quality of the interior of the Buildings
will be suitable for the safe and healthy occupancy of Tenant, its employees, agents, contractors,
invitees, and visitors. Tenant shall have the right to perform its own air quality testing in the
interior of each Building.




     (b) Except for conditions resulting from Landlord’s defective construction, Tenant, at its
sole cost and expense, shall: (i) maintain, operate, and repair the heating, ventilating, and air
conditioning system(s) serving each Building in accordance with the manufacturer’s specifications
and recognized industry standards for such equipment; and (ii) maintain the humidity level and the
air exchange rate within the interior of the Buildings at a level recommended by Applicable Laws
and recognized industry standards.



     (c) If all or any part of the Premises requires repairs or replacements as a result of
Tenant’s failure to maintain indoor air quality as provided in subsection (b) above, then the work
required to remedy the situation will be performed by Tenant, at its sole cost and expense (except
if resulting from Landlord’s defective construction). Landlord shall have no liability to Tenant
or any of its employees, officers, agents, licensees, invitees, assignees, subtenants, contractors,
or subcontractors or any other occupant of any of the Buildings with respect to any air quality
issues and/or related claims (except if resulting from Landlord’s defective construction).



     (d) Notwithstanding anything to the contrary contained herein, if Tenant fails to comply with
its obligations under this Section 11.5 and such failure continues for a period of thirty (30) days
after Tenant’s receipt of written notice from Landlord, then in addition to Landlord’s rights and
remedies under Section 8.2 hereof, Landlord shall have the right, but not the obligation, to
perform such remedial actions as may be necessary or required, as determined by Landlord in its
sole but reasonable discretion, and Tenant shall reimburse to Landlord the costs and expenses
incurred by Landlord in connection therewith within thirty (30) days after written demand by
Landlord, together with reasonable supporting documentation therefor. Notwithstanding the
foregoing, if the performance of such obligation by Tenant would reasonably require more than
thirty (30) days to complete, Tenant shall have a reasonable time to perform in order to cure such
default provided Tenant commences to cure within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion.



     11.6 WAIVERS. All waivers must be in writing and signed by the waiving party.
Landlord’s or Tenant’s failure to enforce any provision of this Lease, or Landlord’s acceptance of
Rent, shall not be a waiver and shall not prevent Landlord or Tenant, as applicable, from enforcing
that provision or any other provision of this Lease in the future. No statement on a payment check
from Tenant or in a letter accompanying a payment check shall be binding on Landlord unless
otherwise agreed to in writing by Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound to the conditions of such statement
unless otherwise agreed to in writing by Landlord.



     11.7 NO RECORDATION. Neither party shall record this Lease. However, simultaneously
with the execution of this Lease, the parties shall execute in recordable form a Memorandum of
Lease in the form attached hereto and made a part hereof as Exhibit “E” and Landlord shall, at its
expense, record such Memorandum in the Public Records of Palm Beach



- 31 -









 




County, Florida. The Memorandum of Lease will not include a legal description of the Golf Course Parcel. Upon
Landlord’s acquisition of the Golf Course Parcel, the parties shall execute an amendment to the
Memorandum of Lease in recordable form and Landlord shall, at its expense, record such amendment in
the Public Records of Palm Beach County, Florida. If Contingency Plan No. 2 (as such term is
defined in Section 11.33) is implemented, then as part of the amendment to this Lease in connection
therewith as described in Section 11.33, the parties shall execute a termination of the recorded
Memorandum of Lease and execute a new Memorandum of Lease, and Landlord shall, at its expense,
promptly record such termination and new Memorandum in the Public Records of Palm Beach County,
Florida. Because Tenant has the right to terminate this Lease pursuant to Section 11.33,
simultaneously with the execution of this Lease, the parties shall execute in recordable form a
Termination of Memorandum of Lease and deliver the original thereof in escrow to Akerman Senterfitt
(Landlord’s attorneys). If Tenant elects to terminate this Lease pursuant to Section 11.33, then
upon Landlord’s receipt of Tenant’s termination notice, Landlord is authorized (without further
agreement or instrument or instruction) to cause the escrow agent to record such Termination of
Memorandum of Lease in the Public Records of Palm Beach County, Florida. Upon the recordation of
the amendment to the Memorandum of Lease following Landlord’s acquisition of the Golf Course
Parcel, or upon the recordation of a termination of the recorded Memorandum of Lease and recording
of a new Memorandum of Lease in connection with Contingency Plan No. 2, then unless otherwise
instructed in writing jointly by the parties, escrow agent shall destroy the Termination of
Memorandum of Lease being held in escrow. The escrow agent’s duties are purely ministerial, and
escrow agent shall not be liable to the parties hereto for any matter or thing arising out of the
performance by escrow agent of its obligations hereunder, except for gross negligence or willful
misfeasance. Escrow agent has served as counsel to Landlord in connection with the Lease, and in
the event of any dispute between the parties, escrow agent may continue to act as counsel to
Landlord.




     11.8 PARTIAL INVALIDITY. If any provision of this Lease is held or rendered illegal
or unenforceable, it shall be considered separate and severable from this Lease and the remaining
provisions of this Lease shall remain in force and bind the parties as though the illegal or
unenforceable provision had never been included in this Lease.



     11.9 FORCE MAJEURE. The performance by either party to this Lease of its obligations
(except the payment of Rent or other sums of money) shall be excused by delays attributable to
events beyond that party’s reasonable control for a period of time that is sufficient for the party
to perform its obligations after the cessation of the Force Majeure event acting in a diligent,
commercially reasonable manner. Events beyond a party’s control include, but are not limited to,
acts of the other party, acts of nature, war, terrorism, government regulation or restriction in
the nature of a moratorium, act of the public enemy, industry-wide inability to secure materials
through ordinary sources by reason of unforeseeable shortages or governmental order, earthquake, tropical storm, hurricane, tornado, civil commotion, labor disputes,
strikes, fire, flood or other casualty, failure of power, shortages of labor or material,
government regulation or restriction (including extraordinary delay in the issuance of any permit),
and inclement weather conditions (such events shall individually and collectively be referred to
herein as “Force Majeure”). Events beyond a party’s control shall not include changes in economic
or market conditions, or financial or internal problems of the non-performing party, or ordinary
weather conditions. For purposes of this Section, “inclement weather conditions” shall



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mean and refer to inclement weather that exceeds the normally expected inclement weather in the area of the
Premises based on a 15-year moving average of climate data maintained by the National Atmospheric
and Oceanic Administration. A day shall only be considered lost due to inclement weather if (a)
precipitation exceeds 1/10th inch in any 24-hour period, or (b) the high temperature for the day is
less than 30 degrees F, or (c) the high temperature for the day exceeds 100 degrees F, or (c) the
area in which the Premises is located is under a tropical storm or hurricane warning or has been
affected by a tropical storm or hurricane warning (regardless of the actual amount of rainfall).
Should a party encounter more lost days in a month due to inclement weather than predicted by the
monthly moving average, the party shall promptly prepare and submit to the other party a notice of
extension of the time to complete its obligations under this Lease after the cessation of the
inclement weather conditions. Such party’s notice shall include reasonable documentation (i)
supporting such party’s position that it encountered greater than average inclement weather for the
month, and (ii) that the inclement weather affected such party’s ability to complete its
obligations to perform in accordance with the terms of this Lease. This Section 11.9 shall not
apply to the Construction Addendum.




     11.10 EFFECTIVENESS. Submission or preparation of this Lease by Landlord shall not
constitute an offer by Landlord or option for the Premises, and this Lease shall constitute an
offer, acceptance, or contract only as expressly specified by the terms of this Section. If Tenant
executes this Lease first, such action shall constitute an offer to Landlord, which may be accepted
by Landlord by executing this Lease within ten (10) business days after Landlord’s receipt, and
once this Lease is so executed by Landlord and an original is received by Tenant, such offer may
not be revoked by Tenant and this Lease is then a binding contract. If Landlord executes this
Lease first, such action shall constitute an offer to Tenant, which may be accepted by Tenant only
by delivery to Landlord of a fully executed original of this Lease within ten (10) business days
after receipt thereof, provided that if any party makes any material or minor alteration of any
nature whatsoever to any of said documents, then such action shall merely constitute a
counteroffer, which the other party may, at its election, accept or reject. Notwithstanding that
the Term Commencement Date may occur and the Term and Rent payments may commence after the date of
execution of this Lease, upon delivery and acceptance of this Lease in accordance with the terms of
this Lease, this Lease shall be fully effective, and in full force and effect and valid and binding
against the parties in accordance with, but on and subject to, the terms and conditions of this
Lease. Terms used throughout this Lease referring to the date that this Lease has been executed or
computing a date after or otherwise referring to the execution of this Lease, shall be deemed to
mean a date that this Lease becomes effective pursuant to the provisions of this Section.



     11.11 AUTHORITY.



     (a) As a material inducement to Landlord to enter into this Lease, Tenant (and, individually
each party executing this Lease on behalf of Tenant), intending that Landlord rely thereon,
represents and warrants to Landlord that:



          (i) Tenant and the party or parties executing on behalf of Tenant are fully and properly
authorized to execute and enter into this Lease on behalf of Tenant and to deliver this Lease to
Landlord;




- 33 -









 








          (ii) This Lease constitutes a valid and binding obligation of Tenant, enforceable against
Tenant in accordance with the terms of this Lease;




          (iii) Tenant is duly organized, validly existing and in good standing under the laws of the
state of Tenant’s organization and has full power and authority to enter into this Lease, to
perform Tenant’s obligations under this Lease in accordance with the terms of this Lease, and to
transact business in the state in which the Premises are located; and




          (iv) The execution of this Lease by the individual or individuals executing this Lease on
behalf of Tenant, and the performance by Tenant of Tenant’s obligation under this Lease, have been
duly authorized and approved by all necessary corporate action, and the execution, delivery, and
performance of this Lease by Tenant is not in conflict with Tenant’s bylaws or articles of
incorporation, and other charters, agreements, rules or regulations governing Tenant’s business as
any of the foregoing may have been supplemented or amended in any manner.




     In connection with the foregoing, simultaneously upon execution of this Lease, Tenant shall
deliver to Landlord a Certificate executed by the secretary or assistant secretary of Tenant which
certifies that Tenant has received all necessary corporate approvals to enter into and perform this
Lease and to perform Tenant’s obligations hereunder and contains an incumbency certificate for the
person authorized to sign on behalf of Tenant.



     (b) As a material inducement to Tenant to enter into this Lease, Landlord (and, individually
each party executing this Lease on behalf of Landlord), intending that Tenant rely thereon,
represents and warrants to Tenant that:



          (i) Landlord and the party or parties executing on behalf of Landlord are fully and properly
authorized to execute and enter into this Lease on behalf of Landlord and to deliver this Lease to
Tenant;




          (ii) This Lease constitutes a valid and binding obligation of Landlord, enforceable against
Landlord in accordance with the terms of this Lease;




          (iii) Landlord is duly organized, validly existing and in good standing under the laws of the
state of Landlord’s organization and has full power and authority to enter into this Lease, to
perform Landlord’s obligations under this Lease in accordance with the terms of this Lease, and to
transact business in the state in which the Premises are located; and




          (iv) The execution of this Lease by the individual or individuals executing this Lease on
behalf of Landlord, and the performance by Landlord of Landlord’s obligation under this Lease, have
been duly authorized and approved by all necessary company action, and the execution, delivery, and
performance of this Lease by Landlord is not in conflict with Landlord’s bylaws or articles of
organization, and other charters, agreements, rules or regulations governing Landlord’s business as
any of the foregoing may have been supplemented or amended in any manner.




     In connection with the foregoing, simultaneously upon execution of this Lease, Landlord shall
deliver to Tenant a Certificate executed by the secretary or assistant secretary of Landlord



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which certifies that Landlord has received all necessary company approvals to enter into and perform this
Lease and to perform Landlord’s obligations hereunder and contains an incumbency certificate for
the person authorized to sign on behalf of Landlord.




     11.12 FLORIDA LAW; DISPUTES.



     (a) This Lease shall be governed by the laws of the State of Florida, without regard to
conflict of laws principles. In the event the parties are unable to resolve any dispute or claim
to a satisfactory resolution as provided in subparagraph (b), below, the parties agree that the
exclusive jurisdiction to hear and determine any claims or disputes between the parties arising out
of or related to this Lease shall be in a state or federal court located in Palm Beach County,
Florida. The parties expressly submit and consent in advance to such jurisdiction in any action or
suit commenced in such courts, and each party hereby waives any objection that it may have based
upon lack of personal jurisdiction, improper venue, or forum non conveniens. In any such
proceedings, trial by jury is waived as provided in Section 11.32, below.



     (b) Each party commits that in the event a dispute should arise under this Lease or relating
in any manner hereto (including, without limitation, a dispute under the Construction Addendum),
the parties shall first endeavor to resolve their dispute by good faith negotiations between or
among the parties. If the parties are unable to resolve their dispute within ten (10) business
days (the “Dispute Negotiation Period”), then the matter shall be reviewed by a senior level
executive of each party (in the case of Tenant, by a Vice President or higher). If these senior
officers are unable to resolve the matter within ten (10) business days after the Dispute
Negotiation Period (the “Senior Level Review Period”), then, prior to any litigation being filed,
the parties agree to attempt to mediate their dispute for a period of thirty (30) days following
the end of the Senior Level Review Period (the “Mediation Period”), using a third party mediator
who is neutral and independent of the parties to this Lease (the “Mediator”), such Mediator to be
jointly selected by Landlord and Tenant within seven (7) business days after the end of the Senior
Level Review Period. If the parties cannot agree on the Mediator within such time period, then
within five (5) days thereafter, each party shall select an independent mediator, and those two
mediators shall (within five (5) days) select the Mediator. Such mediation shall be conducted in
Palm Beach County, Florida. All mediation proceedings shall be confidential, and no information
exchanged in such mediation shall be discoverable or admissible in any litigation involving the
parties.



     (c) If a party determines that a dispute presents such party with an extraordinary situation
that requires it to seek emergency equitable relief prior to the end of the Mediation Period, it
may seek emergency relief through formal legal proceedings.



     11.13 COUNTERPARTS. This Lease may be executed in multiple counterparts, each
counterpart of which shall be deemed an original and all of which together shall constitute one and
the same instrument. If requested, the parties agree to follow-up counterpart execution with
signature pages signed by both parties.



     11.14 HOLDING OVER. If Tenant remains in possession after the end of the Term without
Landlord’s consent and without having executed and delivered a new lease or an agreement extending
the Term, there shall be no tacit renewal of this Lease or the Term, and



- 35 -









 




Tenant shall be deemed to be occupying the Premises from month to month at a monthly Rent payable in advance on the first day
of each month equal to 150% (for the first sixty (60) days) and 200% (for each month thereafter) of
the monthly amount of Rent payable during the last month of the Term, and otherwise upon the same
terms as set forth in this Lease, so far as they are applicable to a monthly tenancy. The
provisions of this Section shall survive the expiration of the Term or earlier termination of this
Lease.




     11.15 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and all provisions
contained herein.



     11.16 APPROVAL OF PLANS AND SPECIFICATIONS. Except as otherwise expressly set forth
in this Lease or in the Construction Addendum, neither review nor approval by or on behalf of
Landlord of any Tenant’s plans for Leasehold Improvements nor any plans and specifications for any
Tenant alterations or any other work shall constitute a representation or warranty by Landlord, any
of Landlord’s members, the managing agent of the Premises, or any of their respective agents,
partners, or employees that such plans and specifications either (i) are complete or suitable for
their intended purpose, or (ii) comply with Applicable Laws, it being expressly agreed by Tenant
that neither Landlord, nor any of Landlord’s members, nor the managing agent of the Premises, nor
any of their respective agents, partners, or employees assume any responsibility or liability
whatsoever to Tenant or to any other person or entity for such completeness, suitability, or
compliance.



     11.17 RELATIONSHIP. Landlord and Tenant disclaim any intention to create a joint
venture, partnership, or agency relationship.



     11.18 BROKER’S FEE. Each of Landlord and Tenant covenants, represents, and warrants
that each had no dealings or negotiations with any broker or agent other than Codina Realty
Services, Inc.· •ONCOR (“Landlord’s Broker”). Landlord shall pay any commission due to
Landlord’s Broker pursuant to a separate agreement between Landlord and Landlord’s Broker.
Landlord agrees to indemnify and hold harmless Tenant against any loss, liability, or expense
(including reasonable attorneys’ fees and costs) arising out of claims for fees or commissions from
anyone claiming through or under Landlord in connection with the lease of the Premises, including,
without limitation, Landlord’s Broker. Tenant agrees to indemnify Landlord against any loss,
liability, or expense (including reasonable attorneys’ fees and costs) arising out of claims for
fees or commissions from anyone claiming through or under Tenant in connection with the lease of
the Premises (and without limiting the generality of the foregoing, Tenant is responsible to pay
(and to indemnify and hold harmless Landlord as set forth herein from and against) any fees or
commissions payable to Cushman & Wakefield of Florida, Inc. or its affiliates).



     11.19 RIDERS AND EXHIBITS. All Riders, Addenda, and Exhibits attached hereto and
referenced herein shall be deemed to be a part hereof and are hereby incorporated.



     11.20 TENANT ASSIGNMENT.



     (a) Tenant will not assign this Lease, in whole or in part, or sublease the Premises, in whole
or in part, without the prior written consent of Landlord, which consent will not be unreasonably
withheld, delayed, or conditioned, and in no event will Tenant be released from



- 36 -









 





any obligation or liability under this Lease following any such assignment or sublease. No sublessee of the Premises
or any portion thereof, may further assign or sublease its interest in the Premises or any portion
thereof, without Landlord’s consent as provided above (if required). All reasonable legal fees and
expenses incurred by Landlord in connection with the review by Landlord of Tenant’s requested
assignment or sublease pursuant to this Section (including, without limitation, the preparation
and/or review of any documentation) will be paid by Tenant within thirty (30) days of invoice for
payment thereof, as Additional Rent. Landlord shall either approve or disapprove of a proposed
assignment or sublease requiring Landlord’s consent within ten (10) business days after receipt of
Tenant’s written request for consent, together with sufficient written evidence of the financial
condition and creditworthiness of such proposed assignee or sublessee. If Landlord fails to
respond to Tenant’s initial written request, then Tenant shall provide Landlord a written reminder
notice with respect thereto. If Landlord fails to respond within two (2) business days after
receipt of such reminder notice (and provided that Tenant has provided to Landlord all information
reasonably requested by Landlord in connection therewith), then Landlord’s consent shall be deemed
to be granted.




     (b) Landlord shall be entitled to receive fifty (50%) percent of the net profits arising out
of an assignment or sublease (other than an Exempt Transfer), such net profits to be determined by
subtracting all Base Rent and Additional Rent due from Tenant with respect to the time period and
square footage applicable to the assignment or sublease, plus the reasonable and customary
brokerage fees, reasonable attorneys’ fees, reasonable and customary costs of alterations, and all
other reasonable costs and expenses incurred by Tenant pursuant to such assignment or sublease,
from the total consideration to be paid by the transferee. Bona fide consideration relating to
non-rental items such as goodwill will not be considered part of the consideration paid by the
transferee in determining whether there are net profits.



     (c) Notwithstanding anything to the contrary contained in this Lease, Tenant may assign this
Lease or sublet all or any portion of the Premises from time to time, without Landlord’s consent
(an “Exempt Transfer”), to any Affiliate of Tenant or successor of Tenant resulting from a merger
or consolidation of Tenant, or as a result of a sale by Tenant of all or substantially all of its
assets or stock, provided that no such transfer shall relieve Tenant from any liability under this
Lease, whether accrued to the date of such transfer or thereafter accruing. In addition, any
change in the controlling interest in the stock of Tenant as a result of any transfer of the
capital stock of Tenant by persons or parties through the “over-the-counter market” or through any
recognized stock exchange or through a tender offer, shall not be deemed to be a transfer requiring Landlord’s consent. Landlord shall not be entitled to receive any
portion of the excess rent as described above arising out of an assignment or sublease not
requiring Landlord’s consent.



     (d) Except with regard to Exempt Transfers, Landlord shall have the right to recapture any
space proposed by Tenant to be assigned or sublet once Tenant has transferred an aggregate total of
180,000 Rentable Square Feet of the Premises (excluding square footage that that has been
transferred pursuant to (x) an Exempt Transfer and (y) a sublease with a term of three (3) years or
less including renewal options) (the “Recapture Threshold”). Once Tenant has entered into
assignment and/or sublease transactions for square footage meeting the Recapture Threshold, then
for any such transaction thereafter (other than (i) an Exempt Transfer or (ii) a sublease with a
term of three (3) years or less including renewal options), Tenant shall give



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Landlord thirty (30) days’ prior written notice of the proposed transaction, and within such thirty (30) day period,
Landlord shall have the right to recapture the space that is the subject of the proposed
transaction by giving Tenant written notice thereof; provided, however, if Landlord notifies Tenant
that Landlord elects to exercise this recapture right, Tenant may, within ten (10) business days of
its receipt of Landlord’s recapture notice, notify Landlord that Tenant is rescinding the proposed
assignment or sublease, in which case Landlord’s recapture notice shall be void. If Landlord
recaptures any portion of the Premises, then Tenant acknowledges and agrees that any tenants which
lease any such recaptured space from Landlord shall have the right: to utilize the parking areas;
to access their leased premises through the other portions of the applicable Building such as
lobbies and elevators (subject to Tenant’s security procedures and protocols); for tenants leasing
more than 90,000 Rentable Square Feet, to maintain exterior signage; for tenants leasing more than
10,000 Rentable Square Feet, to utilize a portion of the roof of the Buildings in which their space
is located for communications equipment so long as such use does not interfere with Tenant’s use of
Tenant’s Rooftop Communications Equipment; and to have such other rights as are customarily granted
to major tenants renting comparably sized premises. Such use and access shall not constitute an
actual or constructive eviction of Tenant, in whole or in part, nor shall it entitle Tenant to any
abatement or diminution of Rent or relieve Tenant from any obligation under this Lease. If
Landlord recaptures any portion of the Premises, the Lease will terminate solely with respect to
the portion of the Premises so recaptured, and there shall be a proportionate refund from Landlord
of any Base Rent and Additional Rent paid for the recaptured portion for a period subsequent to the
effective date of the recapture.




     11.21 LANDLORD ASSIGNMENT. Landlord will have the right to sell, transfer, or assign,
in whole or in part, its rights and obligations under this Lease and in the Premises. Any such
sale, transfer, or assignment will operate to release the transferor Landlord from any and all
liability under this Lease arising after the date of such sale, assignment or transfer, so long as
the transferee expressly assumes, in writing, all obligations of Landlord arising from and after
the date of transfer.



     Notwithstanding the foregoing or anything to the contrary contained in this Lease, prior to
the Base Rent Commencement Date, Landlord may not transfer this Lease or sell the Premises or cause
a change of control, without the prior written consent of Tenant, which shall not be unreasonably
withheld, delayed, or conditioned; provided, however, so long as Codina Development Corporation
remains as the developer for Landlord’s development of the Premises, Tenant’s consent is not required for any assignment of Landlord’s interest in this Lease and
the Premises or a change of control to (i) an Affiliate, or (ii) a lender (or its nominee, or a
purchaser at a foreclosure sale) as a result the enforcement of remedies in a financing by Landlord
for which Tenant is getting an SNDA, or (iii) a Qualified Transferee, as defined in Exhibit “H,”
attached hereto and made a part hereof.



     11.22 AFFILIATE. For purposes of this Lease, “Affiliate” means a person or
entity which controls, is in common control with, or is controlled by, another person
or entity. For the purposes of this definition, the term “control” means (a) legal or
beneficial ownership of fifty-one (51%) percent or more of the voting interests of an
entity, or (b) the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person or entity, whether through the
ownership of voting securities, by contract, or otherwise.




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     11.23 ACCESS. Access to the Premises shall be available to Tenant 24 hours per day, 7
days per week, 365 days per year, subject to Force Majeure.



     11.24 REASONABLENESS. Wherever in this Lease the consent or approval of either
Landlord or Tenant is required, such consent or approval shall not be unreasonably withheld,
delayed, or conditioned, unless this Lease expressly provides that such consent shall be in such
party’s sole discretion. Whenever the provisions of this Lease allow Landlord or Tenant to perform
or not perform some act at their option or in their judgment, the decision of Landlord and Tenant
to perform or not perform such act must be reasonable.



     11.25 SUCCESSORS. The terms, provisions, covenants, and conditions contained in this
Lease shall apply to, inure to the benefit of and be binding upon the parties hereto, and their
respective permitted successors and assigns.



     11.26 REPRESENTATIONS OF LANDLORD.



     Landlord represents and warrants to Tenant, as of the Effective Date, as follows:



     (a) Subject to completion of the acquisition of the Golf Course Parcel, Landlord possesses
full power and authority to deal with the Property in all respects and no other party has any right
or option thereto or in connection therewith.



     (b) There are no pending or, to the actual knowledge of Landlord, threatened condemnation or
annexation proceedings or actions affecting the Property.



     (c) There are no pending or, to the actual knowledge of Landlord, threatened actions or legal
proceedings affecting the Property or Landlord’s interest therein which would have a material
adverse effect on Landlord’s ability to perform its obligations hereunder.



     (d) Landlord has not received written notice of any unpaid special assessments for sidewalk,
water, paving, electrical or power improvements or other capital expenditures or improvements,
matured or unmatured, with respect to the Property.



     (e) Landlord has not received any written notice of any violations of Applicable Laws or the
Declaration with respect to the Property which remains uncured and which would have a material
adverse effect on Landlord’s ability to perform its obligations hereunder.



     (f) Except as may be set forth in the Permitted Exceptions, to the Landlord’s actual knowledge
there is not any survey or title matter which prohibits or restricts the Permitted Use.



     (g) The zoning of the Property (except for the Golf Course Parcel) is LIRP under the City of
Boca Raton zoning code; and the zoning of the Golf Course Parcel is LIRP under the City of Boca
Raton zoning code.



     11.27 OFAC/PATRIOT ACT. Tenant represents and warrants that (a) neither Tenant nor
any person or entity that directly owns a 10% or greater equity interest in it nor any of its
officers, directors, or managing members is a person or entity (each, a “Prohibited Person”) with
whom U.S. persons or entities are restricted from doing business under regulations of the Office



- 39 -









 




of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on
OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order
(including Executive Order 13224 (the “Executive Order”) signed on September 24, 2001 and entitled
“Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism”), or other governmental action, (b) Tenant’s activities do not violate the
International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the
regulations or orders promulgated thereunder (as amended from time to time, the “Money Laundering
Act”) (i.e., Title III of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act”), and (c) throughout
the Term of this Lease, Tenant shall comply with the Executive Order, the Money Laundering Act, and
the Patriot Act.





          In addition, unless readily available from a public source, upon Landlord’s request from time
to time, Tenant will provide Landlord with the names and addresses of all (i) shareholders holding
a 10% interest or greater interest in Tenant, and (ii) officers, directors, and managing members.



     11.28 WAIVER OF LIENS. Landlord hereby waives any statutory and common law liens for
rent (other than judgment liens) and/or with respect to Tenant’s property located at the Premises
from time to time. Although such waiver is hereby deemed to be automatic and self-executing,
Landlord agrees to execute such instruments as may be reasonably required from time to time in
order to confirm such waiver, including, without limitation, such instruments required to
subordinate its statutory and common law lien to the lien of any institutional equipment lender or
lessor of Tenant.



     11.29 RIGHT OF FIRST OFFER TO PURCHASE THE PREMISES.



     (a) Landlord hereby grants to Tenant a right of first offer to purchase the entire Premises in
accordance with the terms set forth herein (the “Right of First Offer”), exercisable by Tenant as
follows: Landlord shall notify Tenant in writing if Landlord intends to place the Premises on the
market for sale to an unaffiliated third party (whether by sale of assets and/or sale of the equity
interests in the entity constituting Landlord) (“Landlord’s Right of First Offer Activation
Notice”). Landlord’s Right of First Offer Activation Notice will include the proposed purchase
price (provided that, if Landlord intends to place the Premises on the market for sale without a
specified asking price, then Landlord is not required to provide a proposed purchase price). In
any event, by written notice delivered to Landlord within twenty (20) days after receipt of
Landlord’s Right of First Offer Activation Notice (“Tenant’s Right of First Offer Exercise
Deadline”), Tenant may elect to pursue negotiations for the purchase of the Premises (“Tenant’s
Right of First Offer Exercise Notice”).



     (b) If Tenant fails to deliver Tenant’s Right of First Offer Exercise Notice by the expiration
of Tenant’s Right of First Offer Exercise Deadline, then Landlord shall provide Tenant a written
reminder notice with respect thereto. If Tenant fails to respond within two (2) business days
after receipt of such reminder notice, then the Right of First Offer shall be deemed to be waived
by Tenant and of no further force or effect, except as otherwise expressly set forth below.



- 40 -









 





     (c) If Tenant timely delivers the Tenant’s Right of First Offer Exercise Notice, then Landlord
and Tenant shall, within five (5) business days, enter into good faith negotiations for the
purchase of the Premises by Tenant, on terms and conditions satisfactory to the parties in their
sole good faith discretion (provided, however, that (i) Tenant shall not be entitled to any
inspection period or other so-called “free-look”; instead, Tenant shall conduct any desired due
diligence within the Negotiation Period (as hereinafter defined), Tenant shall be responsible to
repair any damage caused by any inspection of the Premises, and the indemnification provisions of
this Lease shall apply to any such due diligence inspections, and (ii) the closing shall take place
within forty-five (45) days after the date of the purchase agreement, and (iii) the purchase and
sale agreement will contain then-customary provisions for title and survey review, casualty and
condemnation, and seller representations, but taking into account that the Premises would be sold
to the occupant of the entire Premises).



     (d) If, despite such good faith negotiations, the parties are unable to execute an agreement
for the sale and purchase of the Premises within thirty-five (35) days after the date of Tenant’s
Right of First Offer Exercise Notice (the “Negotiation Period”), for any reason whatsoever, except
as set forth in subsection (e)(ii), then Landlord shall have the right to sell the Premises to any
entity at any price. In addition, Tenant shall execute, within ten (10) days after the expiration
of the Negotiation Period, an instrument in recordable form in order to evidence that Landlord and
Tenant were unable to reach an agreement. During the Negotiation Period, Landlord will not solicit
any offers or proposals, or enter into negotiations, letters of intent, or sales contracts with any
third party with respect to the sale of the Premises. In addition, if the parties do not reach an
agreement and Landlord then places the Premises on the market for sale, nothing shall be deemed to
prohibit Tenant from submitting an offer in accordance with the procedures as may be applicable to
Landlord’s offering, which Landlord will evaluate together with any other offers that Landlord may
receive for the purchase of the Premises.



     (e) The Right of First Offer shall not commence until the Base Rent Commencement Date (the
“ROFO Commencement Date”). To avoid ambiguity, if Landlord enters into a sale agreement in
accordance with Section 11.21, above prior to the ROFO Commencement Date, but the closing
thereunder does not take place until after the ROFO Commencement Date, such closing may proceed and
Landlord is not required to activate the Right of First Offer for such transaction. Following the
ROFO Commencement Date, the Right of First Offer shall continue to apply to Landlord and its
successors until the fifth (5th) anniversary of the ROFO Commencement Date. After the
fifth (5th) anniversary of the ROFO Commencement Date, Landlord shall have the absolute
and unfettered right to sell the Premises free of the Right of First Offer, subject to the notice
provisions provided herein.



     (f) Notwithstanding anything contained herein to the contrary, Tenant shall not be permitted
to exercise the Right of First Offer while in default of this Lease beyond any applicable cure or
grace period.



     (g) Notwithstanding anything contained herein to the contrary, the Right of First Offer shall
not be applicable to any direct or indirect transfers (i) by Landlord to a mortgagee or its nominee
in connection with a transfer of Landlord’s interest pursuant to a foreclosure or transfer in lieu
thereof or a purchaser at a foreclosure sale, and/or (ii) to or among any legal entity that is an
affiliate, subsidiary, or parent of Landlord or Landlord’s partners, members, or



- 41 -









 




shareholders, or a legal entity controlled by Landlord into or with which Landlord may be
merged or consolidated (except if the primary purpose of the merger or consolidation is to
circumvent Tenant’s right of first offer and transfer the Premises to an unaffiliated third party),
and/or (iii) to any entity controlled by (A) TIAA-CREF, its successors or assigns or (B) any other
pension fund or investment fund managed or advised by TIAA-CREF (or any successor thereto by merger
or acquisition).




     (h) From and after such time as Tenant’s Right of First Offer is of no further force or effect
(through waiver or otherwise), then Landlord hereby agrees to use reasonable efforts to notify
Tenant if Landlord elects to market the Premises for sale to an unrelated third party, and Tenant
may elect to submit an offer in accordance with the procedures as may be applicable to Landlord’s
offering, which Landlord will evaluate together with any other offers that Landlord may receive for
the purchase of the Premises. The provisions of this subparagraph are solely for notification
purposes only and shall not be deemed to impose any obligation upon Landlord to negotiate with or
otherwise sell the Premises to Tenant nor shall this subparagraph impose upon Landlord any
obligation to wait any period of time after giving such notice to Tenant before entering into
negotiations with another party for the sale of the Premises or the actual conveyance thereof. The
notice obligation set forth herein shall not be applicable to any transfers contemplated in
subparagraph (g), above. Landlord shall have no liability as a result of Landlord’s failure to
provide the notification to Tenant that is contemplated herein.



     (i) The Right of First Offer is personal to the original Tenant executing this Lease (i.e.,
Office Depot, Inc.) (the “Original Tenant”), and not to any successors or assigns of the Original
Tenant; provided, however, any the Right of First Offer shall be applicable to any assignee of
Tenant pursuant to an Exempt Transfer.



     11.30 PRESS RELEASES. Any media publication regarding this Lease or the transactions
contemplated hereby shall be subject to the joint approval of Landlord and Tenant. Except as
required by Applicable Laws and as specifically provided for in this Lease, Landlord and Tenant
agree that neither Landlord nor Tenant shall disclose the Rent amounts of this Lease to any person
other than their respective Affiliates, employees, members, partners, agents, attorneys, brokers,
or other consultants, or any current or prospective holder of any mortgage or voluntary lien on any
portion of the Premises or current or prospective ground lessor, or to a prospective purchaser, and
to the respective Affiliates, employees, partners, agents, attorneys, brokers, or other consultants
or the foregoing. Notwithstanding anything to the contrary contained in this Lease, any breach by
Landlord or Tenant of the provisions of this Section 11.30 shall not be a default under the terms
of this Lease but the non-defaulting party’s sole remedy shall be to commence actions at law or in
equity for an injunction or to recover damages suffered by such party on account of the breach.
The foregoing does not restrict Landlord and Tenant from making such disclosures as may be required
under securities laws.



     11.31 RENTS FROM REAL PROPERTY. Landlord and Tenant agree that all Rent payable by
Tenant to Landlord shall qualify as rents from real property within the meaning of both Sections
512(b)(3) and 856(d) of the Internal Revenue Code of 1986, as amended (the “Code”) and the U.S.
Department of Treasury Regulations promulgated thereunder (the “Regulations”). If Landlord
determines that there is any risk that all or part of any Rent shall not qualify as rents from real
property for the purposes of the Code and the Regulations, Tenant



- 42 -









 




agrees to cooperate with Landlord (at Landlord’s expense) by entering into such amendment or
amendments as Landlord deems necessary to qualify all Rent as rents from real property, in form and
content reasonably acceptable to Tenant; provided, however, that any adjustments required pursuant
to this paragraph shall be made so as to produce the equivalent Rent (in economic terms) payable
prior to such adjustment.




     11.32 WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS LEASE.



     11.33 Golf Course Parcel. Notwithstanding anything to the contrary contained in this
Lease, the parties acknowledge and agree that as of the Effective Date the Golf Course Parcel,
being a portion of the Property consisting of approximately 1.5 acres (adjacent to Lot B described
in Exhibit “B” hereto), is not owned by Landlord, but is instead owned by an unrelated
third party as part of a golf course. To facilitate construction of the Premises, Landlord and
Tenant agree that Landlord must seek to acquire the Golf Course Parcel. From and after the
Effective Date, Landlord will continue to pursue the acquisition of the Golf Course Parcel from the
title holder thereof, and, upon request, shall provide Tenant with written progress reports with
respect thereto. Landlord makes no guaranty that the Golf Course Parcel can or will be acquired.
Notwithstanding the foregoing, if Landlord fails to acquire title to the Golf Course Parcel
(together with (x) the release of that certain use restriction set forth in paragraph 1 of Exhibit
A-1 contained in that certain Special Warranty Deed recorded in Official Records Book 5161, Page
168 of the Public Records of Palm Beach County, Florida (the “Arvida Deed”) and (y) either (A) the
release of the architectural approval requirements set forth in paragraph 2 of Exhibit A-1 to the
Arvida Deed or (B) the architectural approval in accordance with such paragraph 2 of the plans for
the garage to be constructed by Landlord on the Golf Course Parcel as depicted in the Issued for
Permit Plans (provided, however, that provisions (x) and (y), above, shall only be operative so
long as Landlord has first made its best commercially reasonable efforts in good faith to obtain a
release and termination of all covenants and restrictions in the Arvida Deed)) on or before
December 15, 2006 (the “Acquisition Deadline”), then Tenant shall, in Tenant’s sole and absolute
discretion, have the right to elect any of the following options upon written notice to Landlord
delivered within five (5) business days after the expiration of the Acquisition Deadline (the
“Contingency Plan No. 1 Deadline”): (i) to terminate this Lease, whereupon Tenant shall pay
Landlord fifty (50%) percent of all costs incurred by Landlord in connection with the Lease and the
transaction contemplated hereby, including without limitation, design and development costs, but
not to exceed a total payment from Tenant in the sum of $2.5 million, as liquidated damages and not
as a penalty (it being agreed that Landlord’s actual damages for such termination are difficult and
impractical to ascertain, and the not-to-exceed $2.5 million sum is intended to be a reasonable
estimate for the amounts of damages that Landlord will suffer by reason of Tenant’s termination of
this Lease) and the parties shall be relieved of all further obligations hereunder (except as
specifically provided herein to survive the termination of this Lease); or (ii) to agree to an
alternate site plan (“Contingency Plan No. 1”), whereupon this Lease shall be based upon Landlord
constructing the Premises in accordance with the Contingency Plan No. 1, all of which is to be set
forth in an amendment to this Lease.



- 43 -









 




Landlord and Tenant agree that they shall act in good faith from the Effective Date until the
Acquisition Deadline to develop a mutually acceptable alternate site plan which shall serve as
Contingency Plan No. 1, together with Base Building Plans and a Base Rent based on Contingency Plan
No. 1. In the event Landlord and Tenant have not agreed on an acceptable alternative site plan by
the Contingency Plan No. 1 Deadline, then, within ten (10) business days after the Contingency Plan
No. 1 Deadline (the “Contingency Plan No. 2 Deadline”), Tenant shall, in Tenant’s sole and absolute
discretion, have the right to relocate the Premises (“Contingency Plan No. 2”) to the property
located directly south of the Property and identified on Exhibit “I” attached hereto and
made a part hereof (the “Relocation Property”), whereupon this Lease shall be based upon the owners
of the Relocation Property (collectively, the “Relocation Property Landlords”) constructing the
Premises on the Relocation Property. In such event, the Construction Schedule, this Lease and the
Base Rent shall be modified to reflect appropriate delays in development of the Premises
attributable to the re-submission of the site plan and other applicable matters due to the
relocation of the Premises to the Relocation Property, all of which is to be set forth in an
amendment to this Lease. In connection with Contingency Plan No. 2, Landlord agrees to grant
Tenant an access easement over the south portion of the Property for ingress and egress between
Military Trail and the Relocation Property, in a location and upon terms to be mutually agreed upon
(all of which is to be set forth in the amendment to this Lease as executed by the Contingency Plan
No. 2 Deadline). In addition, the Relocation Property Landlords join in this Lease to agree and
confirm to Contingency Plan No. 2 (if exercised by Tenant as set forth above), and any provisions
in this Lease which may apply in order for this Lease to apply to the Relocation Property
Landlords, the Relocation Property and Contingency Plan No. 2, as well as to agree that from and
after the Effective Date of this Lease they will not solicit any offers or proposals, or enter into
negotiations, letters of intent, or leases or sales contracts with any third party with respect to
the leasing or sale of the Relocation Property (unless the transaction in question would relate to
a ground lease or sale as part of a headquarters lease for Tenant as contemplated by this Lease).
Notwithstanding the foregoing, this Section 11.33 shall terminate, and be null and void and of no
further force or effect, in the event that (a) Landlord acquires fee simple title to the Golf
Course Parcel (subject only to the Permitted Exceptions, as modified by paragraph 12 therein) and
provides evidence of such acquisition to Tenant, prior to the Acquisition Deadline or termination
of this Lease by Tenant as provided above, or (b) the parties enter into an amendment to this Lease
as provided above for either Contingency Plan No. 1 or Contingency Plan No. 2 (and upon such
termination of this Section 11.33, the parties shall enter into amendment to this Lease reflecting
the termination of this Section 11.33).




[signatures on next page]




- 44 -









 








          IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first above
written.



	 	 	 	 	 	 	 	 	 
	WITNESSES:	 	LANDLORD:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BOCA 54 NORTH LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Boca 54 Land Associates LLC, a Delaware

limited liability company, its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Flagler Boca 54, LLC, a Florida

limited liability company, its

Managing Member






	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Jose Hevia	 	 
	   	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	 	 	Jose Hevia, Vice President	 	 
	 

	 	 
 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	   	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
 	 	 	 	 	 	 	 	 





[signatures continued on next page]




- 45 -









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	OFFICE DEPOT, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ David C. Fannin	 	 
	   	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	 	 	David C. Fannin,	 	 
	 

	 	 
 
	 	 	 	 	 	Executive Vice President and
General Counsel	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	   	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
 	 	 	 	 	 	 	 	 




EXHIBITS:




	 	 	 
	“A”

	 	Construction Addendum
	“B”

	 	Legal Description of Property
	“C”

	 	Memorandum of Lease Commencement
	“D”

	 	Base Rent
	“E”

	 	Memorandum of Lease
	“F”

	 	Permitted Exceptions
	“G”

	 	Subordination, Non-Disturbance and Attornment Agreement
	“H”

	 	Qualified Transferees
	“I”

	 	Legal Description of Relocation Property





RIDER:



Rider Number 1 — Renewal Options





- 46 -









 








JOINDER OF OWNERS OF RELOCATION PROPERTY



Agreed as to Section 11.33 of the Agreement:




BOCA 10 A & B LLC, a Delaware limited liability company

BOCA 10 C & D, a Delaware limited liability company

BOCA 11 A LLC, a Delaware limited liability company



	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	BOCA 54 LAND ASSOCIATES LLC, a

Delaware limited liability company, Sole	 	 
	 

	 	 	 	Member	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Flagler Boca 54, LLC, a Florida

limited liability company, Managing

Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Jose Hevia
 

	 	 
	 

	 	 	 	 	 	 	 	Jose Hevia, Vice President	 	 







 









 








EXHIBIT “A”




CONSTRUCTION ADDENDUM


CONSTRUCTION ADDENDUM FOR BASE BUILDING SHELL IMPROVEMENTS

AND LEASEHOLD IMPROVEMENTS

ATTACHED TO AND MADE A PART OF THE

LEASE BETWEEN BOCA 54 NORTH LLC,

AS LANDLORD, AND OFFICE DEPOT, INC., AS TENANT




ARTICLE I




CERTAIN DEFINITIONS




     For the purposes of this Construction Addendum (the “Addendum”), unless the context otherwise
requires, the following terms will have the respective meanings assigned to them in this Article I
or the section or article referred to below:



     1.1 “Base Building” or “Base Buildings” means a total of three (3) office
buildings and various special purpose facilities comprising a total square footage of approximately
624,000 square feet (such square footage to be finalized as part of the Base Building Plans
processes described below, and will be determined in accordance with the Standard Method for
Measuring Floor Area in Buildings published by the Building Owners and Managers Association
(ANSI/BOMA Z65.1-1996), together with the Base Building Systems, grading, drainage, site work,
parking structure, parking and landscaped areas, restrooms, lobbies, equipment rooms, atriums,
Building connectors, and related improvements to the foregoing to be built on the Property in
accordance with the Base Building Plans, all Legal Requirements, and the provisions of this
Addendum, and together with off-site improvements required for the Base Building by Governmental
Authority during the site plan approval process described in the Construction Schedule (as
hereinafter defined).



     1.2 “Base Building Architect” means RLC Architects P.A., or such other firm (and their
consultants) which may hereafter be designated by Landlord and approved in writing by Tenant, which
approval shall not be unreasonably withheld, delayed, or conditioned, that are providing design or
consulting services required incident to the design and construction of the Base Building by the
Landlord. Landlord will provide a copy of the contract or other written agreement between Landlord
and the Base Building Architect promptly upon written request of Tenant.



     1.3 “Base Building Plans” means the final, detailed working plans, specifications,
drawings, and construction documents (including, without limitation, mutually agreed-on performance
criteria) for the Base Building to be prepared and sealed by the Base Building Architect in
accordance with applicable Legal Requirements, and to be approved in writing by Landlord and Tenant
pursuant to this Addendum (and subject to approval by appropriate Governmental Authority to the
extent necessary to obtain all requisite building and other permits), and as such Base Building
Plans may be modified in accordance with this Addendum. Except as otherwise provided in this
Addendum, the Base Building Plans shall be based on the



 









 




Issued for Permit Plans, and the only permissible changes shall be those necessary to reflect
the three letters referred to in the definition of “Issued for Permit Plans” set forth below and
any changes requested by Governmental Authorities.




     1.4 “Base Building Systems” means with respect to the Base Building: (a) the stairs
and elevators; (b) the HVAC, plumbing, and mechanical system; (c) the electrical, telephone,
telecommunication conduit, water, storm sewer and sanitary sewer utility systems and connections;
(d) the sprinkler and fire protection systems, life safety systems and lightning protection system;
and (e) the paving and other improvements for pedestrian and vehicular access and vehicular parking
(including, without limitation, structured parking if shown on Schedule 1), together with all
equipment, machinery, shafts, risers, flues, piping, wiring, ducts, ductwork, panels and
instrumentation, and other appurtenances relating to any or all of the foregoing, all as more
specifically set forth in the Base Building Plans.



     1.5 “Base Building Work” means all construction work, services performed, or materials
provided to the Premises in connection with the construction of the Base Building pursuant to the
Base Building Plans.



     1.6 “City” means the City of Boca Raton, Florida.



     1.7 “Construction Contract” means any construction contract and/or construction
management agreement to be entered into by Landlord, as owner, for the construction and/or
management of construction of all or any part of the Base Building and any other improvements
expressly called for in the Base Building Plans. Landlord promptly shall provide Tenant complete
copies of all Construction Contracts upon written request of Tenant.



     1.8 “Construction Schedule” means the design and construction schedule attached to and
made a part of this Addendum as Schedule 2, as may be updated by Landlord from time to time
upon written notice to Tenant, and the schedule of milestone dates attached to and made a part of
this Addendum as Schedule 2-A, as may be updated by Landlord from time to time upon written
approval by Tenant, which approval shall not be unreasonably withheld, conditioned or delayed. Any
delay in the deliveries required from the Leasehold Improvement Architect may be the basis for a
Tenant Delay.



     1.9 “Issued for Permit Plans” means the plans and specifications listed in Schedule 1,
attached to and made a part of this Addendum, together with Tenant’s comments, requirements and
conditions relative to such plans as set forth in those certain letters dated August, 1, 2006,
October 4, 2006 and October 30, 2006, copies of the letters are also attached as part of
Schedule 1, and as such Issued for Permit Plans may be modified in accordance with this
Addendum. In the event of any conflict between the Base Building Plans and the Issued for Permit
Plans, the terms of the Base Building Plans shall control.



     1.10 “Excusable Delay” means any actual delay in Substantial Completion of the Work
due to strikes, lockouts, or other labor or industrial disturbance (other than on the part of
employees of Landlord), terrorism, government regulation or restriction in the nature of a
moratorium, act of the public enemy, war, industry-wide inability to secure materials through
ordinary sources by reason of unforeseeable shortages or governmental order, earthquake, fire,



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tropical storm, hurricane, tornado, flood, or unusually inclement weather; provided, however,
that for purposes of this definition increased costs in building materials and/or Landlord’s or any
other person’s lack of funds will not be deemed to be an Excusable Delay. Landlord shall use
commercially reasonable efforts to mitigate circumstances that could lead to Excusable Delay. For
purposes of this Section, “unusually inclement weather” shall mean and refer to inclement weather
that exceeds the normally expected inclement weather in the area of the Premises based on a 15-year
moving average of climate data maintained by the National Atmospheric and Oceanic Administration.
A day shall only be considered lost due to unusually inclement weather if the area in which the
Premises is located is under a tropical storm or hurricane warning or has been affected by a
tropical storm or hurricane warning (regardless of the actual amount of rainfall). Should Landlord
encounter more lost days in a month due to unusually inclement weather than predicted by the
monthly moving average, Landlord shall promptly give notice to Tenant of extension of the time to
complete its obligations under this Addendum after the cessation of the unusually inclement
weather. Landlord’s notice shall include reasonable documentation (i) supporting Landlord’s
position that it encountered unusually inclement weather for the month, and (ii) that the unusually
inclement weather affected Landlord’s ability to complete its obligations to perform in accordance
with the terms of this Addendum.




Should Landlord encounter what it considers an Excusable Delay, it shall be included in the
Construction Meeting Report as required in Section 4.3 hereof.



     1.11 “Final Completion of the Base Building” means the completion of all Base Building
Work. “Final Completion of the Base Building Work” will be deemed to have occurred when all of the
following conditions have been satisfied (or waived in writing by Tenant): (a) completion of all
Punchlist Items for the Base Building Work (as hereinafter defined), (b) receipt by Tenant of
as-built plans for the Base Building pursuant to Article XI, (c) receipt by Tenant of all available
operations and maintenance manuals for the Base Building Work, (d) receipt by Tenant of all
available warranty documentation for the Base Building Work compiled in a commercially reasonable
manner, (e) completion of all Tenant training on the operation and maintenance of Base Building
Systems (and Tenant shall make its personnel available for such training at mutually convenient
times), and (f) receipt by Tenant of a copy of all final releases of lien from the General
Contractor. Landlord shall use commercially reasonable efforts to achieve Final Completion of the
Base Building Work not later than 90 calendar days following Substantial Completion of the Base
Building Work.



     1.12 “Final Completion of the Leasehold Improvement Work” means the completion of all
Leasehold Improvement Work. “Final Completion of the Leasehold Improvement Work” will be deemed to
have occurred when all of the following conditions have been satisfied (or waived in writing by
Tenant): (a) completion of all Punchlist Items for the Leasehold Improvement Work (as hereinafter
defined), (b) receipt by Tenant of all available operations and maintenance manuals for the
Leasehold Improvements, (d) receipt by Tenant of all available warranty documentation for the
Leasehold Improvement Work compiled in a commercially reasonable manner, (e) completion of all
Tenant training on the operation and maintenance of the Leasehold Improvements (and Tenant shall
make its personnel available for such training at mutually convenient times), and (f) receipt by
Tenant of a copy of all final releases of lien from the Leasehold Improvement Contractor. Landlord
shall use commercially reasonable efforts to



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achieve Final Completion of the Leasehold Improvement Work not later than ninety (90) calendar
days following Substantial Completion of the Leasehold Improvement Work.




     1.13 “General Contractor” means Centex Construction, LLC, or another general
contractor or construction manager selected by Landlord for the construction of the Base Building
and approved in writing by Tenant, which approval shall not be unreasonably withheld, delayed, or
conditioned.



     1.14 “Governmental Authority” means any and all courts, boards, agencies, commissions,
offices, or authorities of any nature whatsoever of any governmental unit (federal, state, county,
district, municipal, city, or otherwise) whether now or hereafter in existence, which have
jurisdiction over the Base Building, the Premises and the Leasehold Improvements.



     1.15 “Late Date” will have the meaning set forth in Section 6.1.



     1.16 “Late Period” will have the meaning set forth in Section 6.1.





     1.17 “Lease” means the Lease Agreement to which this Addendum is attached.



     1.18 “Leasehold Improvement Costs” means the actual cost for permitting, constructing
and installing the Leasehold Improvements.



     1.19 “Leasehold Improvement Contractor” means Centex Construction, LLC, or another
general contractor or construction manager selected by Landlord for the construction of the
Leasehold Improvements and approved in writing by Tenant, which shall not be unreasonably withheld,
delayed, or conditioned.



     1.20 “Leasehold Improvement Architect” means Hellmunth Obata + Kassabaum, Inc., or
such other firm which may hereafter be designated by Tenant and approved in writing by Landlord,
which approval shall not be unreasonably withheld, delayed, or conditioned. During the progress of
the Work until Substantial Completion of the Base Building Work, Landlord agrees, at no cost to
Tenant, to provide the Leasehold Improvement Architect suitable temporary office space on site to
enable the Leasehold Improvement Architect to monitor the installation of the Leasehold
Improvements, which space shall be comparable to the space provided to the Base Building Architect.
Thereafter, space will be available, but as part of the Leasehold Improvement Costs.



     1.21 “Leasehold Improvement Construction Contract” means any construction contract
and/or construction management agreement to be entered into by Landlord, as owner, for the
construction and/or management of construction of all or any part of the Leasehold Improvements and
any other improvements expressly called for in the Leasehold Improvement Plans. Landlord will
provide a copy of the Leasehold Improvement Construction Contract promptly upon written request of
Tenant. So long as Tenant has approved the Leasehold Improvement Construction Contract (which
approval shall not be unreasonably withheld, delayed, or conditioned), the Leasehold Improvement
Construction Contract shall provide that the Leasehold Improvement Contractor shall look only to
Tenant for payment of all amounts due thereunder, except to the extent such amounts have been paid
to Landlord.




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     1.22 “Leasehold Improvement Plans” means the final, detailed working plans,
specifications, drawings, and construction documents for the Leasehold Improvements to be prepared
and sealed by the Leasehold Improvement Architect and approved, pursuant to the terms of this
Addendum, in writing by Landlord, Tenant and (only to the extent necessary to obtain all requisite
building and other permits) the appropriate Governmental Authority, as such Leasehold Improvement
Plans may be modified in accordance with this Addendum.



     1.23 “Leasehold Improvements” means all leasehold improvements to be constructed
and/or installed in the Premises by Landlord as expressly set forth in the Leasehold Improvement
Plans.



     1.24 “Leasehold Improvement Work” means all construction work, services performed, or
materials provided to the Premises in connection with the construction of the Leasehold
Improvements.



     1.25 “Legal Requirements” means any and all judicial decisions, orders, injunctions,
writs, statutes, rulings, rules, regulations, permits, certificates, or ordinances of any
Governmental Authority in any way applicable to Landlord, Tenant, and/or the Premises, including,
but not limited to, any of the aforesaid dealing with the design, construction, ownership, use,
leasing, maintenance, service, operation, sale, exchange, or condition of real property, or zoning
or environmental or Americans with Disabilities Act matters in effect as of the date of final
approval of the Base Building Plans and the Leasehold Improvement Plans by the appropriate
Governmental Authority and continuing through Substantial Completion of the Work.



     1.26 “Premises” will have the meaning set forth in the Lease.



     1.27 “Prime Rate” the rate charged by banks in the United States as the “prime rate”
as published in the Wall Street Journal on the first working day of the month that any such payment
becomes due and unpaid.



     1.28 “Projected Completion Date of the Base Building Work” means the projected date of
Substantial Completion of the Base Building Work which is August 28, 2008, subject to extension for
Excusable Delays, Tenant Delays, and agreed-on Tenant’s Building Changes.



     1.29 “Projected Completion Date of the Leasehold Improvement Work” means the projected
date of Substantial Completion of the Leasehold Improvement Work which is October 20, 2008, subject
to extension for Excusable Delays, Tenant Delays, and agreed-on Tenant’s Leasehold Improvement
Changes. Upon Substantial Completion of the Base Building Work, the parties contemplate
Substantial Completion of the Leasehold Improvement Work to occur in three (3) phases on or before
the following dates: (i) for the northern most building (the “North Building”), September 15, 2008,
(ii) for the building (the “Center Building”) located between the North Building and the South
Building (as hereinafter defined), October 1, 2008, and (iii) for the southern most building (the
“South Building”), October 20, 2008. Prior to Substantial Completion of the Leasehold Improvement
Work as specifically pertaining to the Center Building and the South Building, as applicable, in
contemplation of Tenant’s phased move-in by building, (i) Tenant shall not unreasonably interfere
with Landlord’s work relative to achieving



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said Substantial Completion of the Leasehold Improvement Work, and (ii) Landlord shall not
unreasonably interfere with Tenant’s use of the Premises other than the Center Building and the
South Building, as applicable.




     1.30 “Projected Completion Date” means the Projected Completion Date of either the
Base Building Work and/or the Leasehold Improvement Work, as applicable.



     1.31 “Punchlist Items” for the Base Building Work means those elements of the Base
Building Work: (a) which are not complete at the time of Substantial Completion of the Base
Building Work, along with a schedule for the completion of each item, and (b) for which it may be
reasonably anticipated that the completion will occur within forty-five (45) days after Substantial
Completion of the Base Building Work, subject to extension for Excusable Delay. The Base Building
Architect will prepare a schedule of Punchlist Items for the Base Building Work upon Substantial
Completion of the Base Building Work, which schedule shall be reviewed and approved in writing by
Tenant and Landlord, which approval shall not be unreasonably withheld, delayed, or conditioned.



     1.32 “Punchlist Items” for the Leasehold Improvement Work means those elements of the
Leasehold Improvement Work: (a) which are not complete at the time of Substantial Completion of the
Leasehold Improvement Work, along with a schedule for the completion of each item, (b) which
individually or in the aggregate, do not materially interfere with Tenant’s ability to take
occupancy of the Premises and to operate its business at the Premises without unreasonable
impediment or interference by reason of continuing of the Leasehold Improvement Work, and (c) for
which it may be reasonably anticipated that the completion will occur within thirty (30) days after
Substantial Completion of the Leasehold Improvement Work, subject to extension for Excusable Delay.
The Leasehold Improvement Architect will prepare a schedule of Punchlist Items for the Leasehold
Improvement Work upon Substantial Completion of the Leasehold Improvement Work, which schedule
shall be reasonably approved by Tenant and Landlord, which approval shall not be unreasonably
withheld, delayed, or conditioned.



     1.33 “Substantial Completion of the Base Building Work” means the substantial
completion by Landlord of the construction of the Base Building Work, all as more specifically set
forth in the Base Building Plans, including, but not limited to, the construction and installation
of the Base Building Systems, in accordance with the Base Building Plans, all applicable Legal
Requirements, the Declaration, and this Addendum, in a good and workmanlike manner, and in
accordance with good construction and engineering practices, free from known material defects
(structural, mechanical, or otherwise), other than defects reflected in the schedule of Punchlist
Items for the Base Building Work. Without limiting the foregoing, “Substantial Completion of the
Base Building Work” will not be deemed to have occurred until all of the following conditions have
been satisfied (or waived in writing by Tenant): (a) receipt of a Certificate of Substantial
Completion of the Base Building Work by Base Building Architect, on AIA Form G704 (or a
substantially similar form) relating to the construction of the Base Building in accordance with
the Base Building Plans; and (b) the City or other Governmental Authority has conducted all
inspections, and issued a certificate of completion evidencing Landlord’s completion of the Base
Building Work (or similar documentation evidencing the same).



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     1.34 “Substantial Completion of the Leasehold Improvement Work” means the substantial
completion by Landlord of the construction of the Leasehold Improvement Work, all as more
specifically set forth in the Leasehold Improvement Plans, including, but not limited to, the
construction and installation of the Leasehold Improvements, in accordance with the Leasehold
Improvement Plans, all applicable Legal Requirements and this Addendum, in a good and workmanlike
manner, and in accordance with good construction and engineering practices, free from known
material defects (structural, mechanical, or otherwise), other than defects reflected in the
schedule of Punchlist Items for the Leasehold Improvements. Without limiting the foregoing,
“Substantial Completion of the Leasehold Improvement Work” will not be deemed to have occurred
until all of the following conditions have been satisfied (or waived in writing by Tenant):
(a) receipt of a Certificate of Substantial Completion of the Leasehold Improvement Work by
Leasehold Improvement Architect, on AIA Form G704 (or a substantially similar form) relating to the
construction of the Leasehold Improvements in accordance with the Leasehold Improvement Plans; and
(b) the City or other Governmental Authority has conducted all inspections, and issued a temporary
or permanent certificate of occupancy evidencing Landlord’s completion of the Leasehold Improvement
Work (or similar documentation evidencing the same) allowing Tenant or its employees, agents,
contractors, or subcontractors to operate the Leasehold Improvements and the Premises without
unreasonable impediment or interference by reason of continuing Leasehold Improvement Work; and (c)
Landlord has achieved Substantial Completion of the Base Building Work.



     1.35 “Substantial Completion of the Work” or “Substantially Complete the Work”
means that Landlord has achieved Substantial Completion of the Base Building Work and Substantial
Completion of the Leasehold Improvement Work.



     1.36 “Tenant Delay” means:




	 	1.36.1	 	any actual delay, not an Excusable Delay, in Substantial Completion of the
Base Building Work, Substantial Completion of the Leasehold Improvement Work,
the Final Completion of the Base Building Work and/or the Final Completion of
the Leasehold Improvement Work which is due to any act or omission of Tenant,
its employees, agents, contractors, subcontractors, or any other person or
entity acting by, through, or under Tenant (including, but not limited to,
Tenant’s Consultants, Tenant’s Leasehold Improvement Architects and any other
architects and interior designers); any changes to the Base Building Plans, the
Leasehold Improvement Plans or in the Work made by or at the request of Tenant
pursuant to Section 3.2 and Section 3.4; any delay by Tenant in making payments
to the Landlord as required pursuant to Section 2.5(i) hereof, except if such
payments are disputed and deposited in escrow in accordance with Section
2.5(i); any failure by Tenant to maintain the milestone dates in the
Construction Schedule, other than due to a non-Excusable Delay on the part of
Landlord; and any delay by Tenant in the submission of plans as required by
this Addendum. The foregoing shall be deemed to include the failure of Tenant,
its employees, agents, contractors, subcontractors, or any other person or
entity by, through, or under Tenant to comply with the Construction Schedule,
as may be





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	 	 	 	updated by Landlord, from time to time, provided, however, that any such
update shall not be deemed to be a waiver of Landlord’s rights and remedies
as a result of any Tenant Delays that may cause the Construction Schedule to
be updated. No Tenant Delay will be deemed to have occurred under this
Addendum unless Landlord has notified Tenant in writing within seven (7)
business days after the occurrence of a Tenant Delay (but, in the event of a
continuing Tenant Delay, it is waived only for the period of time preceding
seven (7) business days before Tenant’s receipt of Landlord’s notice),
provided, however, that if the Tenant Delay relates to the specific time
frames set forth in this Addendum and/or the Construction Schedule for
Tenant to perform its obligations hereunder, then no notice is required from
Landlord for such delay to constitute a Tenant Delay. For instances of
Tenant Delay for which Landlord is required to provide notice, Tenant shall
have a period of two (2) business days within which to cure or dispute the
event causing the Tenant Delay before being charged with Tenant Delay for
purposes hereof. Tenant’s failure to notify Landlord within two (2)
business days after Landlord’s notice of a Tenant Delay shall constitute a
waiver by Tenant of the right to dispute the existence of the applicable
Tenant Delay (but shall not limit Tenant’s right to dispute the length of
the applicable Tenant Delay). There will be excluded from the number of
days of Tenant Delays any days of delay which are caused by any act or
omission of Landlord, its employees, agents, contractors, subcontractors or
any other person or entity by, through, or under Landlord (including, but
not limited to, the Base Building Architect) and any Excusable Delays.
Landlord will have no obligation to attempt to mitigate, through expediting
the prosecution of any Work or changing the scope of the Work or otherwise,
the actual or presumed effects of a Tenant Delay on Landlord’s ability to
achieve Substantial Completion of the Work; provided, however, that at
Tenant’s request and with a written agreement by Tenant to pay any
additional costs incurred by Landlord resulting therefrom, Landlord will use
all reasonable efforts to accelerate the performance of the Work to mitigate
the effects of any Tenant Delay.
	 
	 	1.36.2	 	If any Tenant Delay delays the Substantial Completion of the Base Building
Work, Substantial Completion of the Leasehold Improvement Work, Final
Completion of the Base Building Work or Final Completion of the Leasehold
Improvement Work, then Substantial Completion of the Base Building Work,
Substantial Completion of the Leasehold Improvement Work, Final Completion of
the Base Building Work or Final Completion of the Leasehold Improvement Work,
as applicable, shall be deemed to be the date that Substantial Completion of
the Base Building Work, Substantial Completion of the Leasehold Improvement
Work, Final Completion of the Base Building Work or Final Completion of the
Leasehold Improvement Work would have been achieved, as applicable, but for
such Tenant Delay, as reasonably determined by Landlord.










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	 	1.36.3	 	Except as expressly provided herein, wherever in this Addendum the consent or
approval of Tenant is required, such consent or approval shall not be
unreasonably withheld, delayed, or conditioned and any delay on Tenant’s part
in granting such consent or approval (or declining such consent or approval,
based on specific grounds from Tenant) beyond five (5) business days from
Tenant’s receipt of the item requiring approval and written notification that
Tenant’s failure to timely respond may be the basis for a Tenant Delay, may be
the basis of a Tenant Delay.
	 
	 	1.36.4	 	Except as expressly provided herein, wherever in this Addendum the consent or
approval of Tenant’s Leasehold Improvement Architect is required, such consent
or approval shall not be unreasonably withheld, delayed, or conditioned and any
delay on Tenant’s Leasehold Improvement Architect’s part in granting such
consent or approval (or declining such consent or approval, based on detailed
grounds specified in writing by Tenant’s Leasehold Improvement Architect)
beyond five (5) business days from Tenant’s Leasehold Improvement Architect’s
receipt of the item requiring approval and written notification that Tenant’s
Leasehold Improvement Architect’s failure to timely respond may be the basis
for a Tenant Delay (and provided that a copy of such notice has been delivered
simultaneously to Tenant), may be the basis of a Tenant Delay. Notwithstanding
the foregoing, Tenant’s failure to use its best efforts to cause Tenant’s
Leasehold Improvement Architect to respond to Landlord’s good faith written
requests within (a) five (5) business days of receipt of submittals marked
conspicuously with “PRIORITY” in bold, capitalized lettering, (b) fifteen (15)
business days of receipt of submittals marked conspicuously with “NON-PRIORITY”
in bold, capitalized lettering, (c) three (3) business days of receipt of
requests for information marked conspicuously with “PRIORITY” in bold,
capitalized lettering, and (d) ten (10) business days of receipt of requests
for information marked conspicuously with “NON-PRIORITY” in bold, capitalized
lettering, may be the basis of a Tenant Delay; provided that (i) a copy of
Landlord’s request has been delivered simultaneously to Tenant, (ii) any such
request provides that Tenant’s Leasehold Improvement Architect’s response is
required to be delivered within the applicable time period and written
notification that Tenant’s Leasehold Improvement Architect’s failure to timely
respond may be the basis for a Tenant Delay, and (iii) any such request
pursuant to (a) or (b) above is made in accordance with the reasonable schedule
for same prepared by Landlord and provided to Tenant and Tenant’s Leasehold
Improvement Architect prior to the commencement of the Leasehold Improvement
Work, which schedule may be reasonably updated by Landlord during progress of
the Work with written notice to Tenant.
	 
	 	1.36.5	 	Wherever in this Addendum a Certificate of Final or Substantial Completion
from Tenant’s Leasehold Improvement Architect is required, such Certificate
shall not be unreasonably withheld, delayed, or





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	 	 	 	conditioned and any delay on Tenant’s Leasehold Improvement Architect’s part
in issuing such Certificate (or declining such consent or approval, based on
specific grounds from Tenant’s Leasehold Improvement Architect) beyond five
(5) business days from Tenant’s Leasehold Improvement Architect’s receipt of
written request from Landlord (and provided that a copy of such notice has
been delivered simultaneously to Tenant), may be the basis of a Tenant
Delay. If Tenant’s Leasehold Improvement Architect fails to respond within
the applicable time period, then Landlord may provide Tenant’s Leasehold
Improvement Architect a written reminder notice (with a copy to Tenant
simultaneously) with respect thereto. If Tenant’s Leasehold Improvement
Architect fails to respond within three (3) business days after receipt of
such reminder notice, then Tenant’s Leasehold Improvement Architect shall be
deemed to have issued the applicable Certificate.
	 
	 	1.36.6	 	Tenant shall also be responsible for any increase in Base Building Costs and
Leasehold Improvement Costs resulting from Tenant Delay.





     1.37 “Tenant’s Consultant” means such individual or firm (if any) as is so designated
by Tenant from time to time. If more than one Tenant’s Consultant is engaged for the various
disciplines regarding the Work, then “Tenant’s Consultant” shall mean the Tenant’s Consultant
appointed by Tenant by written notice to Landlord for the discipline in question. Initially,
Tenant’s Consultant is David Stoutamire of the Atlanta office of Cushman & Wakefield of Georgia,
Inc.



     1.38 “Tenant’s Building Changes” will have the meaning set forth in Section 3.2.



     1.39 “Tenant’s Leasehold Improvement Changes” will have the meaning set forth in
Section 3.4.



     1.40 “Tenant’s Delay Damages” will have the meaning set forth in Section 6.1.



     1.41 “Work” means collectively the Base Building Work and the Leasehold Improvement
Work.



     Additional defined terms may appear in other provisions of this Addendum and, if so, will have
the respective meanings assigned to them. Capitalized terms not specifically defined in this
Addendum will have the same meanings as ascribed thereto in the Lease. The definition of a term or
phrase in the singular will include and allow for a reference to such term or phrase in the plural
or vice versa.



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ARTICLE II




SQUARE FOOTAGE; APPROVAL OF PLANS; CONSTRUCTION CONTRACTS;

LEASEHOLD IMPROVEMENT PLANS




     2.1 Square Footage.



     (a) At least ninety days prior to the Projected Completion Date of the Leasehold Improvement
Work, and as a condition to Substantial Completion of the Leasehold Improvement Work, Landlord
shall direct the Base Building Architect to determine the gross square footage of the Base Building
as actually constructed and certify as to same to both Landlord and Tenant. If the gross square
footage of the Premises as determined by the Base Building Architect is greater or less than the
amount specified in the final approved Base Building Plans, then the gross square footage of the
Base Building shall be adjusted to equal the amount as so determined (but the Base Rent shall not
be adjusted). Landlord will not construct the Base Building with less gross square footage than
the amount specified in the final approved Base Building Plans (other than a de minimus amount,
meaning 5,000 gross square feet or less for the Base Buildings, in the aggregate, or otherwise upon
the written consent of Tenant) unless required by (i) the City’s Fire Department/fire marshal
(including field changes necessitated by requirements thereof) and (ii) Tenant’s Building Changes
or Tenant’s Leasehold Improvement Changes.



     (b) Tenant shall have the right to verify and dispute the gross square footage of the Premises
(based upon a written certification to Landlord and Tenant from Leasehold Improvement Architect).
If the parties do not resolve any such dispute as to the square footage of the Premises within
ninety (90) days after Tenant notifies Landlord of such dispute, then Landlord and Tenant shall
jointly appoint an independent disinterested architect, and such architect shall determine the
gross square footage of the Base Building based on the measurement standard described above within
thirty (30) days thereafter, whose decision shall be final and binding. Landlord and Tenant shall
each pay one-half (1/2) of the fees and costs of such third architect. At a minimum, the third
architect shall be a disinterested architect, with substantial experience in the Palm Beach County
commercial real estate office market and shall have experience in and shall be familiar with using
BOMA Standards in the measurement of office buildings.



     2.2 Effect of Approval of Issued for Permit and Base Building Plans. The parties
acknowledge that Tenant’s approval of the Issued for Permit Plans prior to the date hereof and
subsequent approval of the Base Building Plans in accordance with this Addendum: (a) is deemed to
mean non-technical approval of design, materials, and equipment, (b) is not deemed to mean approval
of structural capacity of the Base Building or the Base Building Systems, size of ducts and piping,
adequacy of electrical wiring, system/equipment capacities and, without limitation, other technical
matters, (c) does not relieve Landlord of responsibility for proper and adequate design of the Base
Building or construction of the Base Building in order to achieve Substantial Completion of the
Base Building Work, Final Completion of the Base Building Work or a correction of any Base Building
Work due to a Base Building Design Defect (as defined in Section 10.2) in accordance with this
Addendum, and (d) is not deemed to mean approval by Tenant of any extension of the period in which
Landlord is to achieve Substantial Completion of the Base Building as provided in this Addendum,
except as otherwise expressly approved by



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Tenant in writing or as otherwise requested by Tenant pursuant to a Tenant’s Building Change.
Provided however, Tenant will promptly notify Landlord of any defects or problems in the Issued for
Permit and Base Building Plans and the construction of the Base Building to the extent that Tenant
has actual knowledge thereof. In addition, where Tenant contemplates that the Leasehold
Improvements will require structural, electrical, or mechanical capacity in excess of such capacity
as shown in the Issued for Permit and Base Building Plans, Tenant will be obligated to advise
Landlord of such requirements and request appropriate modification to the Issued for Permit and
Base Building Plans, and any revisions to the Issued for Permit and Base Building Plans necessary
to accommodate the same shall be a Tenant Delay. Landlord will ensure that the structure and
detail of the utilities and the mechanical, electrical, and other Base Building Systems meet all
applicable Legal Requirements and that all of the Work satisfies all Legal Requirements. Landlord
will be solely responsible for the effects, impacts, compliance with Legal Requirements, and
consequences of the design and construction of the Base Building, including any structural failure
or failure of materials or damages to property or injury to persons relating to any defect or
shortcoming in such design. To the extent that Tenant reviews any design for the Base Building,
such review will in no manner or respect constitute a verification, confirmation, or validation of
the propriety, compliance with Legal Requirements, safety or design or construction criteria,
which will be the sole responsibility of Landlord.




     2.3 Preparation of Building Plans.



     (a) Landlord will cause the Base Building Architect to prepare (and, as appropriate, revise)
the Base Building Plans in accordance with the relevant time frames set forth on the Construction
Schedule and in accordance with applicable Legal Requirements.



     (b) The Base Building Plans and any other construction documents will be consistent in all
material respects with the scope, design, or general quality of the Base Building as reflected in
the Issued for Permit Plans and agreed-on performance criteria. In accordance with the
Construction Schedule, the proposed Base Building Plans (full size sheets and in PDF format) will
be submitted to Tenant and Tenant’s Consultant (if any), for Tenant to approve, which approval
shall not be unreasonably withheld, delayed, or conditioned, provided that the same are consistent
in all material respects with the scope, design, or general quality of the Base Building as
reflected in the Issued for Permit Plans and Tenant may, by appropriate marking, provide specific
indications of any non-compliance with the Issued for Permit Plans (in which event the Base
Building Plans will be revised by the Base Building Architect and resubmitted to Tenant and
Tenant’s Consultant (if any), and the process repeated, until finally approved in full). In no
event will Tenant’s requested revisions require or result in a material change in the scope,
design, or general quality of the Base Building as reflected in the Issued for Permit Plans,
including, without limitation, any change in the square footage of the Base Building. Tenant will
provide specific indications of any non-compliance of the Base Building Plans as compared to the
Issued for Permit Plans no later than ten (10) business days after initial receipt thereof by
Tenant and Tenant’s Consultant (if any), and no later than five (5) business days upon any
subsequent review thereafter, until the Base Building Plans are approved by Tenant. If Tenant
fails to respond within the applicable time period, then Landlord may provide Tenant a written
reminder notice with respect thereto. If Tenant fails to respond within three (3) business days
after receipt of such reminder notice, then Tenant shall be deemed to have approved the applicable
submission. Except as provided in Sections 2.3(c), (d) and (e) to the contrary, no



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changes in the Base Building Plans may be made other than to correct non-compliance of the
Base Building Plans as compared to the Issued for Permit Plans.




     (c) If a change to the Issued for Permit Plans or proposed Base Building Plans is mandated by
Governmental Authority during the approval process for the Base Building Plans, the parties shall
work together in good faith to attempt to work out an alternative that would be acceptable to the
Governmental Authority and to Landlord and Tenant. Landlord will be solely liable and obligated to
pay all costs, expenses, and charges relating to or resulting from any such change to the Issued
for Permit Plans or proposed Base Building Plans (but may be paid out of the Base Building
Contingency, as defined below). No such change (whether or not approved by Tenant) will be the
basis of any Tenant Delay.



     (d) After approval of the Base Building Plans by Tenant, Landlord shall not make any material
changes to the Base Building Plans without written approval by Tenant in accordance with Section
3.1, which approval shall not be unreasonably withheld, delayed, or conditioned; provided, however,
that Landlord shall deliver or cause Tenant to receive copies of any and all requests for
information and the Base Building Architect’s supplemental instructions and the responses thereto,
contemporaneously with the delivery of such documentation to or from the Base Building Architect.



     (e) To the extent that any selections are to be made for the fit and finish of the Base
Building or Leasehold Improvements, either during or after the approval process for the Base
Building or Leasehold Improvement Plans, the parties will reasonably cooperate to finalize such
selections, provided, however, that Tenant shall be required to respond, in writing, to any request
by Landlord for a decision on such selection within five (5) business days after request therefor
(unless such request is part of the initial submission of the Base Building or Leasehold
Improvement Plans to Tenant for review, in which event the ten (10) business day period set forth
above shall apply), otherwise, if Tenant does not timely respond to such selection request by
Landlord, Tenant shall be deemed to have waived its right to make such selection(s) and Landlord
shall then have the right to make the same.



     (f) Nothing herein shall be deemed to limit Tenant’s right to request changes to the Base
Building Plans or the Leasehold Improvement Plans pursuant to the provisions of Sections 3.2 and
3.4 hereof.



     2.4 Construction Contract for Base Building. Landlord shall enter into Construction
Contract for the construction of the Base Building based on the Issued for Permit Plans. Prior to
the date hereof, Landlord and Tenant have agreed upon a budget for the construction of the Base
Building, which budget is attached hereto as Schedule 4 (the “Base Building Budget”). The
Base Building Budget includes line items for contingency purposes related to the hard and soft
costs of the Base Building Work (the “Base Building Contingency”). Notwithstanding anything to the
contrary in the Lease or this Addendum, the parties acknowledge and agree that the Base Rent set
forth in the Lease is based on the Issued for Permit Plans and not the Base Building Plans.
Landlord acknowledges and agrees that the Issued for Permit Plans are adequate and sufficient to
provide for the determination of the Base Rent and that the Base Building Budget includes
contingencies sufficient to permit Landlord to obtain the building permit to construct the Base
Building in accordance with the Issued for Permit Plans.



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     2.5 Leasehold Improvement Plans.



     (a) Tenant, at Tenant’s expense, will cause the Leasehold Improvement Architect to prepare and
provide to Landlord and the Base Building Architect (and, as appropriate, revise) the Leasehold
Improvement Plans (full size sheets and in PDF format) in accordance with the relevant time frames
set forth in the Construction Schedule and in accordance with all Legal Requirements.



     (b) In order to maintain the milestone dates in the Construction Schedule on a timely basis in
accordance with this Addendum, in no event will the Leasehold Improvement Plans require or result
in a change in the scope, design, or general quality of the Base Building as reflected in the
Issued for Permit Plans. All such Leasehold Improvement Plans that are prepared by the Leasehold
Improvement Architect will be submitted to Landlord and Landlord will, by appropriate marking,
either approve the same or provide specific reasonable indications of rejections and requested
revisions (in which event the relevant plans, drawings, specifications or other construction
documents will be revised by the Leasehold Improvement Architect and resubmitted to Landlord, and
the process repeated, until finally approved in full), and any approval of Landlord will not be
unreasonably withheld, delayed, or conditioned. Notwithstanding the generality of the foregoing,
in no event will Landlord have any right to reject or request any revision to any Leasehold
Improvement Plans unless the same would (i) require or result in a change in the scope, design, or
general quality of the Base Building as reflected in the Issued for Permit Plans, (ii) have an
adverse impact on the Base Building Systems, or (iii) have an adverse impact on the exterior
appearance of the Base Building. Landlord will approve or provide specific reasonable indications
of rejections and requested revisions to any items submitted (or resubmitted) pursuant to this
Section no later than ten (10) business days after initial receipt thereof by Landlord, and no
later than five (5) business days upon any subsequent review thereafter, until the Leasehold
Improvement Plans are approved by Landlord. If Landlord fails to respond within the applicable
time period, then Tenant may provide Landlord a written reminder notice with respect thereto. If
Landlord fails to respond within three (3) business days after receipt of such reminder notice,
then Landlord shall be deemed to have approved the applicable submission. To the extent any delay
in the completion of the Leasehold Improvement Plans is caused by any delay in the review of the
Leasehold Improvement Plans by Landlord, such delay will not constitute a Tenant Delay.



     (c) Nothing in this Section shall be deemed to limit Tenant’s right to request changes to the
Base Building Plans or the Leasehold Improvement Plans pursuant to the provisions of Sections 3.2
and 3.4 hereof.



     (d) Upon completion of the 35% completed Leasehold Improvement Plans (herein known as the
“Leasehold Design Development Plans”), Tenant shall submit such plans to Landlord. Landlord shall
cause the Leasehold Improvement Contractor to prepare and present to the Tenant an estimate (herein
known as the “Leasehold Design Development Estimate”) of the costs to construct the work shown in
the Leasehold Design Development Plans. Tenant reserves the right to engage separate cost
estimating consultants to prepare an independent estimate of the cost of the work shown in the
Leasehold Design Development Plans. Should the Tenant’s estimate differ materially from the
Leasehold Design Development Estimate, the Tenant and Landlord agree to meet in good faith to
reconcile the differences. Landlord hereby agrees to



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provide Tenant reasonable backup documentation to support the costs presented in the Leasehold
Design Development Estimate.




     (e) Upon completion of 90% completed Leasehold Improvement Plans (herein known as “Leasehold
Issued for Permit Plans”), Landlord will solicit subcontractor bids through the Leasehold
Improvement Contractor for the construction of the Leasehold Improvements, and any changes thereto.
Except for the Major Leasehold Improvement Subcontractor Categories (as hereinafter defined),
Landlord shall use commercially reasonable efforts to solicit such subcontractor bids from at least
three (3) subcontractors for each subcontract having an aggregate value of $100,000.00 or more.
Landlord shall use commercially reasonable efforts to solicit no less than one (1) subcontractor
for each of the following components of the Leasehold Improvements (the “Major Leasehold
Improvement Subcontractor Categories”): HVAC; electrical; life safety; and plumbing/mechanical.
(Although the parties may attempt to identify other potential bidders, the parties acknowledge that
obtaining three (3) bids for the subcontracts having an aggregate value of $100,000.00 or more and
the Major Leasehold Improvement Subcontractor Categories may not be practical.) Within five (5)
business days after Landlord’s receipt of all of the bids for each of the Major Leasehold
Improvement Subcontractor Categories or for the subcontracts having an aggregate value of
$100,000.00 or more, if more than one (1) bidder was used for any Major Leasehold Improvement
Subcontractor Category or the subcontracts having an aggregate value of $100,000.00 or more, the
lowest qualified, responsive bid for each such Major Leasehold Improvement Subcontractor Category
or for the subcontracts having an aggregate value of $100,000.00 or more, will be utilized by
Landlord to prepare and present to Tenant, in accordance with the Construction Schedule, a proposed
budget for the Leasehold Improvement Costs (the “Proposed Leasehold Improvement Budget”). In any
event, promptly after receipt of the bids, Landlord and Tenant will establish the Landlord’s hard
costs related to the Leasehold Improvement Costs, which will be equal to the sum of the following:
(a) the lump sum price or guaranteed maximum price set forth in each bid actually selected for
purposes hereof after adjustment through the value engineering process; (b) the costs to be
incurred by the Leasehold Improvement Contractor in performing the Leasehold Improvement Work; (c)
a fixed fee to the Leasehold Improvement Contractor of no more than five (5%) percent of the total
cost of the Leasehold Improvement Work; (d) a contingency of not more that two (2%) of the total
cost of the Leasehold Improvement Work (the “Hard-Costs Leasehold Improvement Contingency”); and
(e) General Conditions including a fee to the Leasehold Improvement Contractor for
pre-construction services. Landlord will give to Tenant, the Leasehold Improvement Architect and
Tenant’s Consultant five (5) calendar days’ prior written notice of any pre-bid and post-bid
conferences with the Leasehold Improvement Contractor and will permit Tenant, the Leasehold
Improvement Architect and Tenant’s Consultant to attend such meetings. The bidding process for the
Major Leasehold Improvement Subcontractor Categories and the calculations and determinations for
the Proposed Leasehold Improvement Budget shall be conducted on an “open book” basis, with Tenant
having access to all pertinent materials in connection therewith and the ability to participate in
the entire process. Landlord shall not unreasonably withhold or delay providing to Tenant’s
Consultant such line item information, including backup data, as may be requested by Tenant’s
Consultant. Tenant shall notify Landlord, in writing, of any delay by Landlord in providing to
Tenant’s Consultant such line item information.



- 15 -









 





     (f) Upon Landlord presenting the Proposed Leasehold Improvement Budget to Tenant pursuant to
subsection (e) above, Landlord and Tenant shall use good faith efforts to mutually agree upon a
final, approved budget for the Leasehold Improvement Costs (the “Leasehold Improvement Budget”).
The Leasehold Improvement Budget shall include line items for the Hard-Costs Leasehold Improvement
Contingency and other contingencies for the permitting process approved by Tenant (collectively,
the “Leasehold Improvement Contingency”). The Leasehold Improvement Budget together with the Base
Building Budget are herein referred to as the “Project Budget”.



     (g) Should the costs presented in the Proposed Leasehold Improvement Budget differ materially
from the Leasehold Design Development Estimate, Tenant and Landlord agree to meet in good faith to
reconcile the differences. Landlord hereby agrees to provide Tenant reasonable backup documentation
to support the costs presented in the Leasehold Improvement Costs.



     (h) Even if the General Contractor and the Leasehold Improvement Contractor are the same, the
Construction Contract and the Leasehold Improvement Contract shall be separate contracts.



     (i) Tenant agrees to pay to Landlord all Leasehold Improvement Costs in accordance with the
Leasehold Improvement Budget. During the progress of the Leasehold Improvement Work, Landlord
shall submit an invoice, on a monthly basis, requesting payment for the Leasehold Improvement Work
(a “Payment Request”). For a properly submitted and undisputed Payment Request, Tenant agrees to
pay Landlord the sums set forth in such Payment Request within thirty (30) days of receipt thereof
from Landlord of the Payment Request. Interest at the Prime Rate shall apply to any late payments,
commencing upon the 31st day from the date Landlord submits an applicable Payment
Request until the date of payment therefor. In the event of a bona fide dispute regarding payment,
Landlord shall not stop or permit to be stopped the Work during the pendency of such dispute,
provided that, within thirty seven (37) days after the Payment Request (the “Payment Dispute
Deadline”) (a) all undisputed amounts have been paid by Tenant to Landlord for payment to the
Leasehold Improvement Contractor, and (b) all disputed amounts have been placed in escrow by
Tenant, in an interest-bearing account, during the pendency of that dispute, all pursuant to terms
acceptable to both parties. Immediately thereafter, the parties shall follow the dispute
resolution procedure set forth in Article IX of this Addendum in good faith. If the Tenant fails
to (i) pay the undisputed amounts set forth in a Payment Request, (ii) deposit disputed amounts set
forth in a Payment Request in escrow, or (iii) commence and continue to follow the
dispute-resolution procedures in good faith, by the Payment Dispute Deadline, then the Landlord may
stop or permit to be stopped the Work until payment of the amount owing has been received and/or
the disputed amount is placed in escrow pursuant to an escrow agreement acceptable to Tenant and
Landlord, in which event the time from the 31st day from the date Landlord submits an
applicable Payment Request until the date of payment shall be a Tenant Delay and the reasonable
costs of shut-down, delay and start-up, plus interest as provided for herein, shall be the
responsibility of Tenant (“Tenant’s Payment Delay Cost”).



Any Leasehold Improvement Costs that exceed the Leasehold Improvement Budget shall be borne
solely by Landlord, without any liability on the part of Tenant, unless previously approved



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in writing by Tenant or the Tenant’s Designated Representative. Landlord shall be permitted to use
any line item in the budget where there is a surplus to cover any deficit in another line item.
Tenant shall have no obligation to pay to Landlord any Leasehold Improvement Costs pursuant to any
Payment Request unless and until Landlord provides Tenant with a detailed statement of Leasehold
Improvement Costs (which may be set forth in the Payment Request) together with copies of all
invoices, back-up information, certifications from the Leasehold Improvement Contractor on AIA Form
G702, lien waivers and releases for the previous payment request and other documentation reasonably
requested by Tenant in support of the Payment Request submitted by Landlord. In addition, Tenant
shall have the right to inspect the Work to verify the Work for which payment is requested has been
properly completed. It is understood and agreed that a certification from the Leasehold
Improvement Architect is not part of the Payment Request; provided however, Tenant may have the
Leasehold Improvement Architect review Payment Requests as part of Tenant’s review thereof.




     (j) Tenant will be solely responsible for the effects, impacts, compliance with Legal
Requirements, and consequences of the design of any Leasehold Improvements, including any
structural failure or failure of materials or damages to property or injury to persons relating to
any defect or shortcoming in such design. To the extent that Landlord reviews any design for the
Leasehold Improvements will in no manner or respect constitute a verification, confirmation, or
validation of the propriety, compliance with Legal Requirements, safety, or function of any such
design, which will be the sole responsibility of Tenant. Provided, however, Landlord will promptly
notify Tenant of any defects or problems in the Leasehold Improvement Plans and the construction of
the Leasehold Improvements to the extent that Landlord has actual knowledge thereof.



     2.6 Final Plans and Specifications. Upon final approval by the required party or
parties of each part of the plans, drawings, specifications, and construction documents for the
Premises, whether actual or deemed as set forth herein, two (2) sets thereof will be initialed by,
and delivered to, Landlord and Tenant.



     2.7 Construction Contract for Leasehold Improvements. Landlord shall be obligated to
hire and engage the Leasehold Improvement Contractor and shall enter into the Leasehold
Improvement Contract therewith. Any subcontractors retained by the Leasehold Contractor shall be:
(i) licensed in the State of Florida, and (ii) required to carry the insurance set forth in the
Lease; and (iii) in connection with the subcontractors for supplemental HVAC, electrical, life
safety, and plumbing/mechanical work, unless they are the same subcontractors as are engaged under
the Construction Contract, Tenant shall have the right to approve such subcontractors, which
approval shall not be unreasonably withheld, conditioned, or delayed; provided however that Tenant
may disapprove Landlord’s subcontractor for such disciplines only if Tenant has reason to believe
that the subcontractor is not qualified to do the applicable scope of work.




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ARTICLE III




CHANGES IN BASE BUILDING PLANS

AND LEASEHOLD IMPROVEMENT PLANS

AND COST OF CHANGES




     3.1 Changes to the Base Building Plans by Landlord. Landlord will not make, or permit
to be made, any material changes or any other changes which would materially and adversely affect
Tenant’s use or enjoyment of the Base Building without the prior written consent of Tenant. If
such a change is being mandated by Governmental Authority, the parties shall work together in good
faith to attempt to work out an alternative that would be acceptable to the Governmental Authority
and to Tenant. From time to time, Landlord may request, by submitting an analysis of the
additional cost or savings and change, if any, in the date of Substantial Completion of the Work,
that Tenant approve any such material changes in the Base Building Plans, or to the portion of the
Work already installed prior to Substantial Completion of the Work (herein referred to as
“Landlord’s Building Changes”). If Tenant should fail to approve in writing any Landlord’s
Building Changes requested by Landlord within five (5) business days following receipt thereof,
Landlord may notify Tenant of such failure, and if Tenant fails to respond within two (2) business
days following receipt thereof, the same will be deemed to be approved in all respects by Tenant,
and Landlord is authorized to make such requested change. Landlord will be solely liable and
obligated to pay all costs, expenses, and changes relating to or resulting from any Landlord
Building Changes requested by Landlord (which may be paid out of the Base Building Contingency). No
Landlord Building Changes (whether or not approved by Tenant) will be the basis of any Tenant Delay
or otherwise affect the determination of the date of Substantial Completion of the Work.



     3.2 Changes to the Base Building Plans by Tenant. From time to time after Tenant has
reviewed and approved (or deemed to have approved) the Base Building Plans, but in no event
subsequent to the date which is six (6) months prior to the Projected Completion Date of the Base
Building Work, Tenant may request Landlord to make changes in the Base Building Plans or to the
Work already installed prior to Substantial Completion of the Base Building. Any changes to the
Base Building Plans so requested by Tenant (herein referred to as “Tenant’s Building Changes”) will
be subject to Landlord’s prior written approval, which will not be unreasonably withheld, delayed,
or conditioned; provided, however, that such approval may be withheld in Landlord’s sole discretion
if such proposed change requires or results in a material change in the scope, design, or general
quality of the Base Building or a delay in Substantial Completion of the Base Building. Landlord
will, within ten (10) business days following receipt of Tenant’s proposed changes, deliver to
Tenant (a) a statement of the estimated change, if any, in the cost and fees of construction of the
Base Building, including any financing charges (the “Base Building Change Cost”) in connection with
such Tenant’s Building Changes as above provided, and (b) an estimate of the period of time, if
any, that such Tenant’s Building Changes will delay the Substantial Completion of the Base
Building. In the case of Tenant’s Building Changes requested prior to the awarding of a
Construction Contract for the subject work, Landlord’s statement of the Base Building Change Cost
will be based on a good faith estimate of such costs by Landlord and, in the case of Tenant’s
Building Changes requested after the awarding of a Construction Contract for the subject work, the
statement of the Base Building



- 18 -









 




Change Cost will be based on a guaranteed maximum price proposal via a proposed change order
to the Construction Contract to be issued and approved by Landlord and Tenant for such Tenant’s
Building Changes. If Tenant fails to approve in writing Landlord’s submission within ten (10)
business days following receipt thereof and also fails to pay Landlord for one hundred (100%)
percent of the cost of such change within such ten (10) business day period, the same will be
deemed disapproved in all respects by Tenant, and Landlord will not be authorized to make the
change. If Tenant approves in writing the statement of the Base Building Change Cost, if any, and
the delay in Substantial Completion of the Base Building, if any, as submitted by Landlord, (i)
Landlord will promptly cause the Base Building Plans to be modified to provide for such change and
will submit such modified Base Building Plans to Tenant, and (ii) Tenant shall, in Tenant’s sole
and absolute discretion, to be exercised contemporaneously with the Tenant’s approval of the Base
Building Change Cost applicable to such Tenant’s Building Changes, have the option to (x) pay the
entire amount of the Base Building Change Cost in advance of the applicable Base Building Work, (y)
pay the entire amount of the Base Building Change Cost as the Work progresses in the same manner as
Tenant will pay for the Leasehold Improvements as set forth in Section 2.5(i), or (z) pay the Base
Building Change Cost as part of the Additional Amount in connection with the Final Accounting as
set forth in and subject to the terms and conditions of Section 4.4.




     3.3 Changes to the Leasehold Improvement Plans by Landlord. Landlord will not make,
or permit to be made, any changes to the Leasehold Improvements without the prior written consent
of Tenant, which consent shall not be unreasonably withheld, delayed, or conditioned. If such a
change is being mandated by Governmental Authority, the parties shall work together in good faith
to attempt to work out an alternative that would be acceptable to the Governmental Authority and to
Tenant. From time to time, Landlord may request, by submitting an analysis of the additional cost
or savings and change, if any, in the Substantial Completion of the Leasehold Improvement Work
date, that Tenant approve any such changes in the Leasehold Improvement Plans, or to the portion of
the Work already installed prior to Substantial Completion of the Leasehold Improvement Work
(herein referred to as “Landlord’s Leasehold Improvement Changes”). If Tenant should fail to
approve in writing any Landlord’s Leasehold Improvement Changes requested by Landlord within five
(5) business days following receipt thereof, Landlord may notify Tenant of such failure, and if
Tenant fails to respond within two (2) business days following receipt thereof, the same will be
deemed to be approved in all respects by Tenant, and Landlord is authorized to make such requested
change. Landlord will be solely liable and obligated to pay all costs, expenses, and changes
relating to or resulting from any Landlord Leasehold Improvement Changes requested by Landlord
(which may be paid out of the Leasehold Improvement Contingency). No Landlord’s Leasehold
Improvement Changes (whether or not approved by Tenant) will be the basis of any Tenant Delay or
otherwise affect the determination of the date of Substantial Completion of the Leasehold
Improvement Work.



     3.4 Changes to the Leasehold Improvement Work by Tenant. From time to time after
Landlord has commenced construction of the Leasehold Improvement Work, Tenant may request Landlord
to make changes in the Leasehold Improvement Work shown on the Leasehold Improvement Plans or
already installed prior to Substantial Completion of the Leasehold Improvement Work (herein
referred to as “Tenant’s Leasehold Improvement Changes”). Landlord will, within ten (10) business
days following receipt of Tenant’s proposed changes, deliver to Tenant (a) a firm-fixed price
proposal for the cost, if any, (the “Tenant’s Leasehold



- 19 -









 




Improvement Changes Cost”) in connection with such Tenant’s Leasehold Improvement Changes as
above provided, and (b) the period of time, if any, that such Tenant’s Leasehold Improvement
Changes will delay Substantial Completion of the Base Building Work, Substantial Completion of the
Leasehold Improvement Work, Final Completion of the Base Building Work and/or Final Completion of
the Leasehold Improvement Work. All such change proposals shall conform to the requirements of
Section 3.6. If Tenant fails to approve in writing Landlord’s proposal within five (5) business
days or, if such period is impractical, within such other commercially reasonable period, following
receipt thereof, the same will be deemed disapproved in all respects by Tenant, and Landlord will
not be authorized to make the change. After Tenant approves in writing the proposed Tenant’s
Leasehold Improvement Changes Cost, if any, and the delay in Substantial Completion of the
Leasehold Improvement Work and Final Completion of the Leasehold Improvement Work, if any, as
submitted by Landlord, (i) Landlord will promptly incorporate the Tenant’s Leasehold Improvement
Changes into the Work and (ii) Tenant shall, in Tenant’s sole and absolute discretion, have the
option to (x) pay the entire amount of the Tenant’s Leasehold Improvement Changes Cost in advance
of the applicable Leasehold Improvement Work, or (y) pay the entire amount of the Tenant’s
Leasehold Improvement Change Cost as the Work progresses in the same manner as Tenant will pay for
the Leasehold Improvements as set forth in Section 2.5(i). Upon Landlord’s receipt of any of
Tenant’s proposed changes for any portion of the Work within the critical path, Landlord shall
continue to proceed with the Work unless and until Tenant approves in writing Landlord’s proposal
or, if directed in writing by Tenant to stop the Work, until Tenant notifies Landlord in writing
whether it approves Landlord’s proposal. The period of time for any stoppage of the Work upon such
written direction by Tenant, commencing on the receipt of Tenant’s written direction and ending on
the date Tenant notifies Landlord in writing whether it approves Landlord’s proposal or directs
Landlord to continue the Work, shall constitute a Tenant Delay.




     3.5 Monthly Accounting for Changes. During the performance of the Work, Landlord will
cause to be submitted to Tenant and Tenant’s Consultant monthly progress reports, with respect to
the Base Building Work, prepared by the General Contractor, and with respect to the Leasehold
Improvement Work, prepared by the Leasehold Improvement Contractor, specifying any change in the
estimated date of Substantial Completion of the Work, and showing the progress of the Work,
together with as may be appropriate a summary of pending changes, the estimated values, and the
originator of the change. Landlord will submit to Tenant, for Tenant’s audit and review, such
accounts, records, invoices, and evidences of payment as Tenant may reasonably request to evidence
the costs solely as to those items for which the cost is the responsibility of Tenant.



     3.6 Except for changes to the Base Building Plans or Leasehold Improvement Plans deemed
approved in accordance with this Article III, the only change orders (i.e. Landlord’s Building
Changes, Tenant’s Building Changes, Landlord’s Leasehold Improvement Changes and Tenant’s Leasehold
Improvement Changes) which will be effective shall be those executed on AIA Form G701 by Tenant’s
Designated Representative or Tenant’s Alternative Representative. Except as provided in this
Article III, no order, statement, or conduct of Tenant, Tenant’s Consultant, Tenant’s Designated
Representative, or any other agent or employee of Tenant shall be treated as a change order. Should
Landlord interpret an order, statement, or conduct of the Tenant, Tenant’s Consultant, Tenant’s
Designated Representative, or any other agent or employee of Tenant as a change order, Landlord
shall promptly give the Tenant written notice



- 20 -









 




stating the (a) date, (b) circumstances, (c) and source of the order, and request the Tenant
confirm whether such order, statement, or conduct is a change order.




     3.7 Landlord, in connection with any proposal made for any change order pursuant to this
Article III, shall furnish a price breakdown, itemized as reasonably required by Tenant. Unless
otherwise directed, the breakdown shall be in sufficient detail to permit an analysis of all
material, labor, equipment, subcontract, and overhead costs (including design services) other than
costs for design services for Leasehold Improvements. Tenant shall be responsible for all the costs
of the Leasehold Improvement Architect separately.



ARTICLE IV




CONSTRUCTION




     4.1 Performance by Landlord. Landlord will cause Substantial Completion of the Work
and will be fully responsible for all matters that must be accomplished to complete the Work in
accordance with the provisions of this Addendum including, without limitation, design of the Base
Building in accordance with all Legal Requirements, filing plans and other required documentation
with the proper Governmental Authority, securing all necessary permits, supervising all details of
the Work, and promptly removing or otherwise handling to Tenant’s reasonable satisfaction all
construction (mechanics’), material suppliers’, and like liens from the public record by payment or
bond. Landlord will not be responsible for specific items to be installed by a separate
contractor, pursuant to a separate contract with Tenant, and not otherwise required to be installed
in accordance with the Base Building Plans and the Leasehold Improvement Plans. All equipment,
material, and articles incorporated into the Work shall be new and of the most suitable grade for
the purpose intended, unless otherwise specifically provided. All Work under this Addendum shall be
performed in a skillful and workmanlike manner. The Tenant may require, in writing, that the
Landlord consider any request to replace any employee the Tenant deems incompetent, careless, or
otherwise objectionable.



     4.2 Non-Liability of Tenant. Subject to Sections 4.5 and 4.8, Tenant and Tenant’s
Consultant will not be liable for any injury, loss, or damage to any person (including, but not
limited to, death) or property on or about the Premises during construction, unless caused by
Tenant, its employees, agents, or contractors, and Landlord will indemnify and save Tenant and
Tenant’s Consultant harmless against and from any such liability, and any costs or charges
(including, without limitation, reasonable attorneys’ fees and court costs) which Tenant or
Tenant’s Consultant may incur on account of such injury, loss, or damage. Landlord’s
indemnification obligation pursuant to the provisions of this Section 4.2 will survive and continue
in full force and effect after the Term Commencement Date and the expiration or termination of the
Lease (regardless of how same may occur).



     4.3 Information; Monthly Report. During the period prior to Substantial Completion of
the Base Building Work, Landlord will provide all reasonable cooperation to keep Tenant informed as
to material aspects pertaining to the design, construction (including progress reports), use,
maintenance, operation, service, or insurance of the Base Building and the Leasehold Improvements,
as applicable. Accordingly, in addition to the Construction Meeting Report (defined below),
Landlord will furnish Tenant’s Designated Representative (as defined



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below) with copies of all progress reports, correspondence, or other information as may be
material and pertinent to the Base Building and the Leasehold Improvements, as applicable, other
than internal communications or confidential matters between Landlord and its attorneys or
accountants. Tenant’s Designated Representative and Tenant’s Consultant (if any) will have the
right to attend scheduled meetings material to the interest of Tenant as may be held with respect
to the Base Building and the Leasehold Improvements between Landlord, the General Contractor, the
Leasehold Improvement Contractor, the Base Building Architect, the Leasehold Improvement Architect
and any other outside person or firm (other than Landlord’s attorneys or accountants) furnishing
materials, services, or labor to or with respect to the Base Building and the Leasehold
Improvements. Landlord agrees to provide Tenant with reasonable prior notice of any scheduled
meetings material to the interest of Tenant, but will not be obligated to attempt to schedule any
such meetings to accommodate Tenant’s availability or convenience. Furthermore, Tenant’s failure
to timely attend any such scheduled meetings will not constitute a basis for any claim by Tenant
that Landlord has violated the foregoing provisions. Prior to Substantial Completion of the Work,
Landlord and its construction team will meet no less frequently than once every month to discuss
and analyze the progress of construction. Within five (5) business days following each meeting,
Landlord will prepare and deliver to Tenant a written report (which may be in the form of the
minutes of the meeting) (a “Construction Meeting Report”) summarizing the material items discussed
at such meeting and the effect of such items, if any, on the Construction Schedule. Each
Construction Meeting Report will specifically identify any event or condition which would
constitute an Excusable Delay or a Tenant Delay (and any incurred cost directly or indirectly
resulting from a Tenant Delay) which has occurred since issuance of the immediately prior
Construction Meeting Report.




     4.4 Final Accounting; Adjustment of Base Rent.



     (a) During the course of the Work, Landlord shall maintain records and other documentation
reasonably sufficient to record all allowable and allocable costs necessary to meet its obligations
under this Addendum. Landlord shall provide copies to Tenant of such records and other
documentation upon written Tenant request.



     (b) Upon the Base Rent Commencement Date, Tenant shall commence to pay Base Rent as set forth
in Exhibit “D” of the Lease. Within ninety (90) days of Substantial Completion of the Leasehold
Improvement Work, the Landlord shall present a full and final accounting (the “Final Accounting”)
of all allowable and allocable costs and expenses necessary to meet its obligations under this
Addendum through the Base Rent Commencement Date (the “Landlord’s Total Cost of the Work”). Should
the Landlord’s Total Cost of the Work attributable to the Base Building Work and those items that
constituted the Base Building Budget (“Landlord’s Final Development Cost”) be less than the total
cost listed in the Base Building Budget (the difference herein being referred to as the “Credit
Amount”), the Landlord shall, as determined by Tenant, refund to Tenant the Credit Amount in cash
or shall adjust the Base Rent to amortize the Credit Amount remaining over the Term of the Lease
(which amortization rate shall be consistent with the rate utilized to determine the annual Base
Rent in Exhibit “D” of the Lease). Should the Landlord’s Final Development Cost be greater
than the Base Building Budget due to Tenant Delay, Tenant’s Building Changes, Tenant’s Leasehold
Improvement Changes to the extent that such changes affect the cost of the Base Building Work or
Tenant’s Payment Delay Cost (the difference herein being referred to as the “Additional Amount”),
the Base Rent shall increase to



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amortize the Additional Amount over the Term of the Lease (which amortization rate shall be
consistent with the rate utilized to determine the annual Base Rent in Exhibit “D” of the
Lease), or at Tenant’s discretion, Tenant shall pay the Additional Amount to Landlord such that the
Base Rent shall remain unchanged. It is expressly contemplated by Landlord and Tenant that the
Base Rent shall be reduced to recognize savings, cost reductions and credits for, among other
things, payments made by Tenant requested and approved by Landlord, any unused Base Building
Contingency, savings resulting from the parties’ agreed upon changes to the drawings and
specifications for the Base Building, or construction cost savings otherwise procured by Landlord
during the course of the Base Building Work, whether or not due to Landlord’s Building Changes,
Landlord’s Leasehold Improvement Changes, Tenant’s Building Changes or Tenant’s Leasehold
Improvement Changes to the extent that such changes affect the cost of Base Building Work;
provided, however, Tenant may make payments without Landlord’s consent for those upgrades
identified on Schedule 5 attached hereto and made a part hereof. Likewise, it is expressly
contemplated by Landlord and Tenant that, except in the event that Tenant shall pay the Additional
Amount to Landlord (which Tenant shall have the right to do in Tenant’s sole and absolute
discretion) the Base Rent shall be increased to recognize increases in Landlord’s costs to perform
the Base Building Work in connection with any Tenant Delay, Tenant’s Building Changes or Tenant’s
Leasehold Improvement Changes to the extent that such changes affect the cost of Base Building
Work. In connection with determining and/or verifying the Landlord’s Total Cost of the Work,
Tenant shall have the right to audit and review all records, documentation and other information of
Landlord, the General Contractor, the Leasehold Improvement Contractor, any subcontractors of
Landlord and other vendors of Landlord, and Landlord shall cooperate with any audit or review
requested by Tenant. Landlord and Tenant agree to execute and deliver an amendment to the Lease to
evidence any adjustment in the Base Rent pursuant to this Section 4.4(b).




     (c) The Final Accounting shall include an analysis to determine the sum total of additional
charges due to Landlord (after crediting, to the extent applicable, any credits for which Tenant is
entitled to under this Addendum and any other amounts previously paid by Tenant to Landlord with
respect to the Work, including, without limitation, any Tenant’s Building Changes or Tenant’s
Leasehold Improvement Changes to the extent that such changes affect the cost of the Base Building
Work) by reason of Tenant’s Building Changes, Tenant’s Leasehold Improvement Changes to the extent
that such changes affect the cost of the Base Building Work or Tenant Delay. If any Additional
Amount is due to Landlord, and after submission to and reasonable approval by Tenant of such
accounts, records, invoices, and evidence of payments as Tenant may reasonably request, such amount
(plus interest accrued thereon at the Prime Rate per annum commencing on a date that is thirty (30)
days after the date Landlord’s invoice therefor is delivered to Tenant) will be paid in cash by
Tenant to Landlord within thirty (30) days after the analysis and determination have been
completed, unless Tenant has elected to have such costs included in the Base Rent, in which case
the Base Rent shall be increased to amortize the excess over the Term of the Lease as set forth in
Section 4.4(b) above. The foregoing computation shall be deemed to include, and Tenant will be
obligated to pay, the fees (including, but not limited to, the fees of the Base Building Architect
and other professionals engaged and utilized by the Landlord), expenses, and charges of Landlord
and all contractors, subcontractors, material suppliers, and laborers to the extent, but only to
the extent, that such fees, expenses, and charges are incurred as a result of Tenant’s Building
Changes, Tenant’s Leasehold Improvements



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Changes to the extent that such changes affect the cost of the Base Building Work or Tenant Delay.




     4.5 General Access for Inspection and Monitoring of Progress; Tenant’s Construction.



     (a) Landlord will afford Tenant, its employees, and its representatives regular access during
normal business hours to the Base Buildings, all materials thereon and therein, and all work being
performed thereon and therein solely for inspection and monitoring of progress purposes or other
purposes expressly provided by this Addendum; provided, however, that in exercising such right of
access, Tenant and its employees and representatives will comply with all Legal Requirements
(including, but not limited to, OSHA safety regulations and standards) and will coordinate such
access with the General Contractor and Leasehold Improvement Contractor. Tenant will be required
to provide reasonable prior notice to the General Contractor and Leasehold Improvement Contractor
for the purpose of coordinating Tenant’s entry onto the Premises with Work then in progress.
Tenant acknowledges that its ability to gain entry to the Premises occasionally may be limited or
restricted due to the particular stage of Work then in progress. Landlord shall have the
opportunity to have a representative of Landlord accompany Tenant regarding any such entry.



     (b) Tenant reserves the right from time to time upon notice to and approval by Landlord, such
approval not to be unreasonably withheld, to perform with its own personnel, or to cause to be
performed by other contractors, other work at the Premises not included herein; provided, however,
that Tenant shall use commercially reasonable efforts to assure that such personnel or separate
contractors will not cause any conflict with the personnel of Landlord (“Tenant’s Early Access”).
Landlord shall afford Tenant and its separate contractors reasonable opportunity for the
introduction, protection and storage of material and equipment at the Premises and the execution of
work, and Tenant shall properly connect, schedule and coordinate the Landlord’s work with the work
of the Tenant’s personnel or separate contractors. Tenant shall insure that such personnel or
separate contractors comply with the rules and regulations of the Landlord, General Contractor or
Leasehold Improvement Contractor regarding work at the Premises. Landlord shall not deny Tenant’s
Early Access provided that the following conditions are satisfied at the time of such request: (i)
the construction of the Base Building and the Leasehold Improvements will be completed to a degree
which will allow Tenant’s Early Access without undue interference with Landlord’s Substantial
Completion of the Work; and (ii) Tenant’s Early Access is permitted by Governmental Authority; and
(iii) Tenant has provided to Landlord all applicable insurance certificates of Tenant, and any of
its contractors or subcontractors. Tenant will be responsible for all costs of repair or damage to
the Base Buildings and the Leasehold Improvements caused by Tenant, its employees, agents, or
contractors, including, without limitation, the Leasehold Contractor and any subcontractors
thereof, during the period between the date of Tenant’s Early Access and the Term Commencement
Date. Notwithstanding the foregoing, Tenant’s Early Access shall be further subject to the
provisions set forth in Schedule 3 to this Addendum.



     (c) Tenant may inspect and conduct tests at any reasonable time to determine whether the Work
is being performed consistent with the Base Building Plans and the Leasehold Improvement Plans,
regardless of whether such inspections or tests are required by the Base Building Plans and the
Leasehold Improvement Plans. Should the Tenant’s inspections or tests



- 24 -









 




reveal that the Work is not installed in accordance with the Base Building Plans and the
Leasehold Improvement Plans in all material respects, the cost of uncovering and replacement shall
be at the Landlord’s expense (which may be deducted from the applicable Contingency, but to the
extent it relates to Base Building Work and there is no remaining Base Building Contingency, such
cost shall not be included in the calculation of Landlord’s Total Cost of the Work attributable to
the Base Building Work pursuant to Section 4.4); provided, however, Landlord shall diligently
pursue correction of such defective Work by the Base Building Architect and the General Contractor,
as applicable. If the Tenant’s inspections or tests require Work to be uncovered and such
inspections or tests reveal that the Work has been installed in accordance with the Base Building
Plans and the Leasehold Improvement Plans, the costs of uncovering and replacement shall be at the
Tenant’s expense and may be the basis of Tenant Delay. Neither Tenant’s inspections, tests or
approvals nor its failure to make any such inspections, tests or approvals shall relieve Landlord
of its responsibility to construct the Work in accordance with the Base Building Plans and the
Leasehold Improvement Plans.




Tenant shall endeavor to mitigate the cost of correction of any non-conforming Work by performing
any inspections and tests in a timely manner so as not to disrupt the flow of the Work. Tenant’s
failure to notify Landlord within five (5) business days after Tenant has learned of any
non-conforming Work shall constitute a waiver by Tenant of the right to later require the
correction of such Work.



     (d) Landlord will not be liable for any injury, loss, or damage to any person (including, but
not limited to, death) or property on or about the Premises resulting from the access by the access
by Tenant, its employees, agents, contractors and subcontractors to or being on the Premises or in
the Base Buildings prior to the Term Commencement Date, including Tenant’s Early Access and the
performance of inspections and monitoring, except to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees, or contractors. Tenant indemnifies and agrees to
hold harmless Landlord, General Contractor and Leasehold Improvement Contractor from and against
any and all liability, and any costs or charges (including, without limitation, reasonable
attorneys’ fees and court costs) which Landlord, the General Contractor, the Leasehold Improvement
Contractor may incur on account of such injury, loss, or damage claims arising from, or claimed to
arise from, any negligence or willful misconduct of Tenant, its employees, agents, contractors and
subcontractors, while on the Premises, or in the Base Buildings prior to the Term Commencement
Date, or for any other reason whatsoever arising out of the access by Tenant, its employees,
agents, contractors and subcontractors to or being on the Premises or in the Base Buildings prior
to the Term Commencement Date, including Tenant’s Early Access and the performance of inspections
and monitoring, except to the extent caused by the negligence or willful misconduct of Landlord,
its agents, employees, or contractors. Tenant’s indemnification obligation pursuant to the
provisions of this Section 4.5 will survive and continue in full force and effect after the Term
Commencement Date or the termination of the Lease (regardless of how same may occur).



     4.6 Landlord shall cause the General Contractor or Leasehold Improvement Contractor to remove
from the Premises all Work reasonably rejected by the Tenant as failing to conform to the Base
Building Plans and the Leasehold Improvement Plans, whether incorporated in the Work or not, and
the Landlord shall promptly replace and re-execute the Work in accordance with this Addendum.



- 25 -









 





     4.7 Thirty (30) days following Substantial Completion of the Work, if the Landlord
persistently fails or neglects to carry out the completion of any Punchlist Item for the Base
Building Work or any Punchlist Item for the Leasehold Improvement Work in accordance with the
requirements of this Addendum, Tenant, after ten (10) days’ written notice to the Landlord and
without prejudice to any other remedy the Tenant may have, may make good such deficiencies and may
deduct the reasonable cost thereof, including Tenant’s expenses and compensation for the Leasehold
Improvement Architect’s and Tenant’s Consultant’s services made necessary thereby, from the
applicable Contingency.



     4.8 No Assumption of Responsibility. Except as otherwise expressly provided in this
Addendum, neither the exercise nor the failure to exercise by Tenant or its representatives of any
right afforded Tenant under this Addendum (including specifically, but without limitation, the
exercise or the failure to exercise of a right to review, comment upon, approve, or disapprove
documents, plans, specifications, drawings, or other matters, or the performance by Landlord) or
the failure by Tenant to insist upon the performance by Landlord of any obligation imposed upon
Landlord under this Addendum, will (a) impose upon Tenant, or be deemed to be an assumption by
Tenant, of any obligation or liability with respect to the construction, operation, or insurance of
the Work or the design of the Base Building or (b) constitute or be deemed to constitute
acquiescence by Tenant to any act or failure to act on the part of Landlord which is in conflict
with any provision of this Addendum.



     4.9 Designated Representatives. Landlord and Tenant each hereby appoint a
representative (each a “Designated Representative”), and in the event that a Designated
Representative is unavailable for any reason whatsoever, an alternative representative (each an
“Alternative Representative”), to make timely binding decisions on design, development, and
construction matters (including pricing and scheduling changes) relating to the Work. The
Designated Representatives are:



	 	 	 
	Landlord

	 	Jose Hevia
	 
	 	 
	Tenant

	 	David C. Fannin
	 
	 	 
	The Alternative Representatives are:
	 	 
	 
	 	 
	Landlord

	 	Kolleen O.P. Cobb
	 
	 	 
	Tenant

	 	Stephen R. Calkins






     At any time and from time to time hereafter, Landlord and Tenant will each have the right to
appoint a successor or substitute Designated Representative and/or Alternative Representative to
act on behalf of such party, each such appointment to be effected by delivering five (5) days’
prior written notice to the other party hereto in accordance with the notice provisions of the
Lease. Any action which may be taken by a Designated Representative may also be taken by an
Alternative Representative and any party may rely thereon as if such action had been taken by the
Designated Representative and such party will have no duty to inquire why the Designated
Representative was unavailable to act.



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ARTICLE V




COST OBLIGATIONS




     5.1 Landlord’s Cost. Except as otherwise specifically provided in this Addendum,
Landlord will be liable and obligated to pay for all costs of preparation of the Base Building
Plans and all costs of developing and constructing the Base Building, including, but not limited
to, all permit costs, impact fees, architectural and engineering fees, and costs for labor and
materials.



     5.2 Tenant’s Cost. Tenant will be liable for and obligated to pay the cost, as and
when due, of the Leasehold Improvement Plans, including, without limitation, labor, materials, all
costs of certification of pay requests by the Leasehold Improvement Architect, all costs for
development of punch lists for the Leasehold Improvements, and any other costs associated with the
Leasehold Improvement Architect and/or its agents. Tenant will be liable for and obligated to pay
the cost of any increase in Landlord’s costs of developing and constructing the Building resulting
from any Tenant Delay. Tenant also will be liable for and obligated to pay the cost of
constructing and completing the Leasehold Improvements, including, without limitation, labor and
materials in accordance with this Addendum.



ARTICLE VI




SCHEDULE FOR CONSTRUCTION




     6.1 Time to Complete.



     (a) Time is of the essence to this Addendum. Landlord will cause Substantial Completion of
the Work in accordance with this Addendum on or before the applicable Projected Completion Date, as
may only be extended by Excusable Delays and/or Tenant Delays and/or agreed-on Tenant’s Building
Changes and Tenant’s Leasehold Improvement Changes, in which case the applicable Projected
Completion Date, if adversely affected by Excusable Delay and/or Tenant Delay and/or agreed-on
Tenant’s Building Changes and Tenant’s Leasehold Improvement Changes, as the case may be, will be
extended by one day for each day of such Excusable Delay and/or Tenant Delay and/or agreed-on
Tenant’s Building Changes and Tenant’s Leasehold Improvement Changes. If Substantial Completion of
the Base Building Work or Leasehold Improvement Work is not achieved by Landlord on or before the
date that is fifteen (15) days after the applicable Projected Completion Date, as extended by
Tenant Delay and/or Excusable Delay and/or agreed-on Tenant’s Building Changes and Tenant’s
Leasehold Improvement Changes (the “Late Date”), Landlord will then be liable to Tenant for damages
(“Tenant’s Delay Damages”), as liquidated damages as Tenant’s sole and exclusive remedy for such
delay (except as expressly provided below), and not as a penalty, for the number of days between
the Late Date and the date that Substantial Completion of the Work is achieved (the “Late Period”),
as provided below. Tenant’s Delay Damages will be equal to: (i) Two Thousand Five Hundred and
No/100 ($2,500.00) Dollars per day for the first fifteen (15) days of the Late Period, and (ii)
Nine Thousand Five Hundred and No/100 ($9,500.00) Dollars per day for each day of the Late Period
following the first fifteen (15) calendar days thereof. Tenant’s actual damages for late
Substantial Completion of the Base Building are difficult and impractical to ascertain, and the



- 27 -









 




Tenant’s Delay Damages are intended to be reasonable estimates for the amounts of damages that
Tenant will suffer by reason of Landlord’s delay in completing the Base Building. Landlord will
credit the amount of unpaid Tenant’s Delay Damages, if any, against the Base Rent due to Landlord;
provided, however, that if Landlord contests Tenant’s claim for Tenant’s Delay Damages, then
Tenant’s ability to claim such credit will be postponed until a final adjudication is reached with
respect to such claim. The payment to Tenant by Landlord of Tenant’s Delay Damages will constitute
Tenant’s sole remedy for Landlord’s failure to timely Substantially Complete of the Work, and shall
not be deemed to be a default under the Lease, except as expressly provided below.




     (b) If Landlord has not achieved Substantial Completion of the Work on or before the first
anniversary of the Projected Completion Date of the Leasehold Improvement Work (the “Outside
Completion Date”) (as such Outside Completion Date may be extended by Excusable Delays and/or
Tenant Delays and/or agreed-on Tenant’s Building Changes and Tenant’s Leasehold Improvement
Changes), then Tenant shall have the right to terminate the Lease subject to the provisions hereof.
If Tenant desires to terminate the Lease, then Tenant shall send a written notice to Landlord
stating Tenant’s desire to so terminate within ten (10) business days after the Outside Completion
Date (“Tenant’s First Termination Notice”). If Landlord achieves Substantial Completion of the
Work within thirty (30) days after delivery of Tenant’s First Termination Notice, then Tenant’s
First Termination Notice shall be void and of no further force or effect, and the Lease shall
continue in full force and effect. If Landlord does not achieve Substantial Completion of the Work
within thirty (30) days after delivery of Tenant’s First Termination Notice, and Tenant desires to
terminate the Lease, then Tenant shall send a written notice to Landlord stating Tenant’s desire to
so terminate within ten (10) business days after the expiration of such thirty (30) day period
(“Tenant’s Second Termination Notice”). If Landlord achieves Substantial Completion of the Work
within thirty (30) days after delivery of Tenant’s Second Termination Notice, then Tenant’s Second
Termination Notice shall be void and of no further force or effect, and the Lease shall continue in
full force and effect. If Landlord does not achieve Substantial Completion of the Work within
thirty (30) days after delivery of Tenant’s Second Termination Notice, then the Lease shall be
deemed to be terminated and the parties shall be relieved of all further obligations under the
Lease. Nothing in this subsection is intended to relieve Landlord of its obligations to otherwise
meet the Construction Schedule in accordance with this Addendum.



     6.2 Tenant Default. If a Tenant Delay occurs under this Addendum or Tenant otherwise
fails to comply with the terms hereof and the same continues uncured for ten (10) business days
after Landlord’s delivery of notice thereof to Tenant, then Landlord shall have the following
rights and/or remedies, at Landlord’s option: (a) an Event of Default shall be deemed to have
occurred under the Lease, giving Landlord all rights and remedies available to Landlord thereunder;
provided, however, that Landlord will not seek to terminate the Lease unless (i) Landlord has
afforded Tenant the applicable cure period set forth in the Lease, and (ii) the Tenant Delay in
question is based on Tenant (A) having failed to (x) deliver the Leasehold Improvement Plans in
accordance with the terms and conditions of this Addendum, or (y) provide the insurance required
under this Addendum, or (B) having otherwise ceased all performance under this Addendum; and/or (b)
Tenant shall be liable for all damages incurred by Landlord which are proximately caused by such
Tenant Delay, including, without limitation, any increased construction costs of the Base Building
or Leasehold Improvements (e.g., due to



- 28 -









 




re-pricing of the Construction Contract(s) or any subcontracts as a result of such Tenant
Delay) regardless of whether Substantial Completion of the Work is deemed to have occurred; and/or
(c) Landlord shall have any other rights and/or remedies expressly provided in this Addendum.




     6.3 Early Completion Bonus. If Landlord achieves Substantial Completion of the
Leasehold Improvement Work in accordance with this Addendum prior to the Projected Completion Date
for the Leasehold Improvements (or if Substantial Completion of the Leasehold Improvement Work is
not achieved solely due to Tenant Delay, then if Landlord would have achieved Substantial
Completion of the Leasehold Improvement Work on or before the Projected Completion Date for the
Leasehold Improvement Work but for such Tenant Delay), Landlord will be entitled to a bonus
(“Landlord’s Early Completion Bonus”) for each day between the date of such Substantial Completion
of the Leasehold Improvements (or the date that such Substantial Completion of the Leasehold
Improvements would have occurred, but for Tenant Delay) and such Projected Completion Date for the
Leasehold Improvements (the “Early Completion Period”). Landlord’s Early Completion Bonus will be
equal to Five Thousand and No/100 ($5,000.00) Dollars per day for each day of the Early Completion
Period. Landlord’s Early Completion Bonus shall be paid to Landlord solely out of the unused
portion, if any, of the Base Building Contingency. If the Base Building Contingency has been
depleted, then Landlord is not entitled to Landlord’s Early Completion Bonus regardless of whether
it has been earned.



ARTICLE VII




LEASE




     7.1 Term Commencement Date. The Term of the Lease will commence upon the Term
Commencement Date (as defined in Section 1.3 of the Lease). Notwithstanding the foregoing, if any
Tenant Delay causes a delay in Substantial Completion of the Leasehold Improvements Work, then the
Term Commencement Date shall be deemed to be the date that Substantial Completion of the Leasehold
Improvements Work would have been achieved, but for such Tenant Delay. On the Term Commencement
Date, Landlord agrees that, at Landlord’s expense: (a) Landlord will deliver possession of the
Premises and the Leasehold Improvements, free of all leases, tenancies, occupants, construction
lien claims not discharged or transferred to security within ten (10) business days of the filing
thereof, and defects in material and workmanship, but subject to Punchlist Items for Base Building
Work or Leasehold Improvements Work; (b) the Base Building and the Leasehold Improvements will be
in compliance with all Legal Requirements other than as may be applied due solely to a special use
by Tenant unless the special use is shown on the final approved Base Building Plans or Leasehold
Improvement Plans or in an approved Tenant’s Building Change or Tenant’s Leasehold Improvement
Changes; (c) Landlord will satisfy all those obligations imposed upon Landlord by the provisions of
the Lease which are required to be complied with prior to the commencement of the Term of the
Lease, and (d) Landlord shall remove from the Premises all temporary systems, tools, equipment,
machinery, surplus materials, waste and rubbish, and replace broken glass, except to the extent
that any such items need to remain in order to complete any mutually approved Punchlist Items.
Notwithstanding the foregoing, to the extent that the Term Commencement Date occurs and, due to a
Tenant Delay or a default by Tenant under the Lease or this Addendum, any of the foregoing
requirements set forth in clauses (a) — (d) above have not been met or satisfied by Landlord then
such requirements shall be deemed to be waived



- 29 -









 




by Tenant for purposes of determining the date of Substantial Completion of the Work, and the
Term Commencement Date shall nevertheless be deemed to occur, but Landlord will complete such
requirements when Substantial Completion of the Work actually occurs.




ARTICLE VIII




GENERAL COVENANTS OF LANDLORD




     8.1 Insurance. Landlord will obtain and maintain or will require the General
Contractor to obtain and maintain, from the date hereof until the date of Substantial Completion of
the Work, at no cost to Tenant, builder’s all-risk insurance (which shall be for the Base Building
only), automobile liability insurance, and commercial general liability insurance against liability
for bodily injury and death and property damage, in reasonable and customary amounts and forms (at
least $2,000,000 general aggregate, which commercial general liability insurance shall name Tenant
and Tenant’s Consultant as additional insureds thereunder). Upon approval by Tenant of the
Leasehold Improvement Costs, and any Tenant’s Building Change or Tenant’s Leasehold Improvement
Change, Landlord will require the General Contractor or the Leasehold Improvement Contractor (in
the case of Leasehold Improvements) to increase the amount of builder’s all-risk insurance for this
work. The cost of the increased insurance will be included in the cost of the Leasehold Improvement
Costs, Tenant’s Building Change or Tenant’s Leasehold Improvement Change. Landlord will also
provide or cause to be provided and kept in force workers’ compensation coverage with statutory
benefits covering employees of the General Contractor and with such endorsements and employer’s
liability coverage as would be maintained by a prudent owner. Landlord will deliver to Tenant,
promptly as same are issued, certificates of insurance as are required to be obtained and
maintained by Landlord pursuant to the terms hereof. Any insurance required by the terms of this
Section 8.1 to be carried by Landlord may be under a blanket policy (or policies) covering other
properties of Landlord and/or its affiliates; provided, however that Landlord will procure and
deliver to Tenant a statement from the insurer or general agent of the insurer setting forth the
coverage maintained and the amounts thereof allocated to the risks intended to be insured
hereunder. In addition, the General Contractor shall carry products and completed operations (for
at least one (1) year after the date of Substantial Completion of the Base Building or Substantial
Completion of the Leasehold Improvement Work, as applicable); and contractual liability
specifically covering the indemnification provision in the Construction Contract. The commercial
general liability insurance is to include broad form property damage and afford coverage for
explosion, collapse and underground hazards, and “personal injury” liability insurance and an
endorsement providing that the insurance afforded under the contractor’s policy is primary
insurance as respects Landlord and Tenant and that any other insurance maintained by Landlord or
Tenant is excess and non-contributing with the insurance required hereunder, provided that such
insurance may be written through primary or umbrella insurance policies with policy limits required
herein).



     8.2 Base Building Architect’s Insurance. Landlord shall cause the Base Building
Architect to carry professional liability insurance in the amount of $1,000,000 per occurrence and
$2,000,000 in the aggregate.



     8.3 Leasehold Improvement Architect and Contractor Insurance. Tenant, at no cost to
Landlord, shall cause all architects and engineers retained by Tenant in connection with the



- 30 -









 




Leasehold Improvements to carry liability (including professional liability insurance in the
amount of $1,000,000 per occurrence and $2,000,000 in the aggregate) insurance, as described in
Section 8.1 above and naming Landlord as an additional insured thereunder.




     8.4 Landlord’s Use of Tenant’s Name. Landlord shall not use Tenant’s name or
trademark(s) on any site signs without the prior written consent of Tenant, which consent may be
withheld in Tenant’s sole and absolute discretion.



ARTICLE IX




DISPUTE RESOLUTION




     9.1 Mediation. Any dispute as to the Base Building Plans or the Work shall be subject
to the provisions of Section 11.12 of the Lease; provided that for any mediation in connection with
a dispute under this Addendum, the Mediator shall have had experience in large-scale commercial
construction.



     9.2 Excusable Delay. Any delays in Substantial Completion of the Work caused as a
result of the lapse of time pending an outcome under the dispute resolution process set forth in
Section 11.12 of the Lease or as a result of a court decision shall be deemed to be an Excusable
Delay if, as to a court decision, the court judgment provides for same.



ARTICLE X




WARRANTY OF CONSTRUCTION/CORRECTION OF THE WORK




     10.1 For the first (1st) year after the date of Substantial Completion of the Base Building
Work (the “Base Building Warranty Period”), Landlord hereby warrants to Tenant that all Base
Building Work performed under this Addendum conforms to the requirements of the Base Building
Plans, and is free of any defect, and that Landlord agrees to repair or replace (if needed) any
defect in the Base Building Work so long as the need for such repair or replacement is not caused
by the negligence or willful misconduct of Tenant or its agents, employees, or contractors. The
warranty contained herein is not intended to reduce Landlord’s repair and maintenance obligations
expressly set forth in the Lease.



     10.2 For the first (1st) year after the date of Substantial Completion of the Leasehold
Improvement Work (the “Leasehold Improvements Warranty Period;” and together with the Base Building
Warranty Period, the “Warranty Period”), Landlord hereby warrants to Tenant that all Leasehold
Improvement Work performed under this Addendum conforms to the requirements of the Leasehold
Improvement Plans, and is free of any defect, and that Landlord agrees to repair or replace (if
needed) any defect in the Leasehold Improvement Work so long as the need for such repair or
replacement is not caused by the negligence or willful misconduct of Tenant or its agents,
employees, or contractors. The warranty contained herein is not intended to reduce Landlord’s
repair and maintenance obligations expressly set forth in the Lease.



     10.3 Subject to the provisions of Section 4.5(c) hereof, prior to Substantial and Final
Completion of the Base Building and the Leasehold Improvement Work and during the applicable
Warranty Period, if Tenant notifies Landlord that any of the Work required under the



- 31 -









 




Base Building Plans or the Leasehold Improvement Plans is found to be not in accordance with
the requirements of the Base Building Plans or the Leasehold Improvement Plans, Landlord shall use
commercially reasonable efforts to cause the General Contractor and the Leasehold Improvement
Contractor to correct such work with reasonable promptness. Under no circumstances shall Landlord
have any responsibilities with respect to the Work if Tenant has not given such notice to Landlord
within such one-year period.




     10.4 Costs of correcting non-conforming work, including additional testing and inspections and
compensation for the Base Building Architect and Leasehold Improvement Architect’s services and
expenses made necessary thereby, shall be at the Landlord’s expense, however, such expenses may be
paid from any unused Base Building Contingency if related to the Base Building (but any such costs
related to the Base Building Work in excess of the Base Building Contingency shall not be included
in the calculation of Landlord’s Total Cost of the Work attributable to the Base Building Work
pursuant to Section 4.4) and may be paid from any unused Leasehold Improvement Contingency if
related to the Leasehold Improvements. Notwithstanding the foregoing or any other provision of
this Addendum to the contrary, (i) in the event that the correction of the Work is related to an
error or omission in the Leasehold Improvement Plans by the Leasehold Improvement Architect (a
“Leasehold Improvement Plan Design Defect”), then the Work necessary to correct the Leasehold
Improvement Plan Design Defect shall be made at Tenant’s expense, and (ii) in the event that the
correction of the Work is related to an error or omission in the Base Building Plans by the Base
Building Architect (a “Base Building Plan Design Defect”), then the Work necessary to correct the
Base Building Plan Design Defect shall be made at Landlord’s expense, but such costs may be paid
from the Base Building Contingency (but any such costs related to the Base Building Plan Design
Defect in excess of the Base Building Contingency shall not be included in the calculation of
Landlord’s Total Cost of the Work attributable to the Base Building Work pursuant to Section 4.4).
Notwithstanding any provision in this Addendum to the contrary, Tenant’s approval of the proposed
or final Base Building Plans or Leasehold Improvement Plans shall not relieve Landlord of its
obligations under this Article X.



     10.5 For components of the Base Building and for the Leasehold Improvements that have
manufacturer’s warranties that are greater than one year, at Substantial Completion of the Base
Building or Substantial Completion of the Leasehold Improvements, as applicable, the Landlord shall
assign such warranties to the benefit of the Tenant. Such warranties shall be in a commercially
reasonable form. The Landlord shall remain responsible for administering all warranties, including
such extended warranties, for one year following the date of Substantial Completion of the Base
Building or Substantial Completion of the Leasehold Improvements, as applicable.



     10.6 Notwithstanding the foregoing, the warranty period for all plant material, vegetation and
landscaping, including, without limitation, sod, shall be at least ninety (90) days from
Substantial Completion of the Work.



     10.7 Subject to Landlord’s obligations above, upon the Term Commencement Date, Landlord shall
assign its rights under the Leasehold Improvements Contract to the benefit of the Tenant, which
shall have the right to pursue any rights it may have thereunder.




- 32 -












 





     10.8 Following the end of the Base Building Warranty Period, Landlord shall assign its rights
under the Base Building Construction Contract, other than foundation, roof, floor slabs, exterior
walls and ceiling slabs and other structural portions of the Base Buildings which Landlord is
responsible to maintain under the Lease, to the benefit of the Tenant, which shall have the right
to pursue any rights it may have thereunder with respect to latent defects, gross mistakes, or
fraud.



ARTICLE XI




AS-BUILT PLANS




     11.1 Within ninety (90) days following Substantial Completion of the Work, Landlord, at its
expense as part of the Base Building cost, shall deliver or cause to be delivered to Tenant one (1)
complete copy of as-built drawings and specifications of the Base Building Work, in full size
sheets, and in electronic format reasonably acceptable to Tenant. As-built drawings and
specifications must show all changes incorporated into the Work. The cost of generating such
as-built drawings and specifications for the Base Building shall be part of the Base Building cost.



     11.2 Within ninety (90) days following Substantial Completion of the Leasehold Improvement
Work, Landlord, as part of the Leasehold Improvement Costs to be paid by Tenant shall deliver or
cause to be delivered one (1) complete set of marked up drawings and specifications to the
Leasehold Improvement Architect showing all changes incorporated into the Work.




- 33 -









 








Schedule 1 to Construction Addendum




ISSUED FOR PERMIT PLANS





 









 








Schedule 2 to Construction Addendum




CONSTRUCTION SCHEDULE





 









 








Schedule 2-A to Construction Addendum




CONSTRUCTION SCHEDULE MILESTONE DATES





 









 








Schedule 3 to Construction Addendum




PROVISIONS RELATING TO TENANT’S EARLY ACCESS

FOR CONSTRUCTION OF LEASEHOLD IMPROVEMENTS




     1. The parties agree to cooperate and use good faith efforts to meet the time frames set forth
in the Construction Schedule.



     2. Tenant’s Early Access shall not in any way delay or materially interfere with the Work, and
Tenant agrees to meet with Landlord as often as requested by Landlord in order to continually
coordinate Tenant’s Early Access.



     3. Tenant’s Early Access shall be at Tenant’s sole risk, and if at any time Tenant’s Early
Access shall cause material delay, disharmony, impediment, or interference with the Work, then
Tenant’s Early Access may be withdrawn by Landlord upon two (2) business days’ written notice to
Tenant and failure of Tenant to cease its activities that are the cause of the delay, disharmony,
impediment, or interference (which failure shall then be a Tenant Delay). Tenant’s Early Access
shall at all times be subject to the Landlord’s reasonable rules and regulations regarding such
access.



     4. Landlord makes no representation or warranty that the framework established by the parties
for Tenant’s Early Access will comply with Legal Requirements. If at any time a Governmental
Authority alleges that Tenant’s Early Access is not in compliance with or permitted by Legal
Requirements, then Tenant shall cease all work as may be required by the Governmental Authority,
until such time as Tenant, at its expense, has obtained the necessary approvals therefor.



     5. Tenant’s Early Access shall not constitute acceptance of the Premises nor shall it in any
way be deemed a waiver of any rights Tenant might have under this Addendum.



 









 





Schedule 4 to Construction Addendum




BASE BUILDING BUDGET




 









 





Schedule 5 to Construction Addendum




Description of Upgrades





 









 








EXHIBIT “B”




LEGAL DESCRIPTION OF PROPERTY



Parcels “B”, “C”, “D”, “E” and “F”, ARVIDA PARK OF COMMERCE PLAT NO. 11, according to the Plat
thereof, as recorded in Plat Book 50, Page 151, of the Public Records of Palm Beach County,
Florida.



together with the Golf Course Parcel described as follows:



Being a parcel of land situated in Section 1, Township 47 South, Range 42 East, City of Boca Raton,
Palm Beach County, Florida and more particularly described as follows:



Commencing at the Southwest corner of the Northwest one-quarter of said Section 1; thence South 89°
06' 49" East, along the South line of the said Northwest one-quarter, a distance of 70.01 feet;
thence North 00° 00' 35" West, a distance of 40.00 feet; thence
South 89° 06' 49" East, a distance
of 105.99 feet to the POINT OF BEGINNING of this description; thence
continue South 89° 06' 49"
East a distance of 250.00 feet; thence North 00° 00' 35" West, a distance of 258.00 feet; thence
North 89° 06' 49" West, a distance of 250.00 feet; thence South
00° 00' 35" East, a distance of
258.00 feet to the POINT OF BEGINNING.



Based on the final site plan and surveying, the legal description of the Property may be updated,
and the parties will execute such documentation as may be reasonably requested by Landlord in order
to confirm the legal description.





B-1









 








EXHIBIT “C”




This instrument prepared by:




Eric D. Rapkin, Esq.

Akerman Senterfitt

Las Olas Centre II

350 East Las Olas Boulevard, Suite 1600

Ft. Lauderdale, Florida 33301




MEMORANDUM OF LEASE COMMENCEMENT




          THIS MEMORANDUM OF LEASE COMMENCEMENT is made and entered into as of                                         ,
200___, by and between BOCA 54 NORTH LLC, a Delaware limited liability company (the “Landlord”), and
OFFICE DEPOT, INC., a Delaware corporation (the “Tenant”), with respect to that certain Lease
between Landlord and Tenant dated as of                                         , 2006 (the “Lease”).




     Landlord and Tenant hereby confirm that the Term Commencement Date of the Lease is
___, 200___, the Base Rent Commencement Date is ___, 200___, and that the
Term shall expire on ___, 20___, unless the Term is renewed or the Lease is terminated
pursuant to the terms of the Lease, and that these dates shall be conclusive for all purposes of
the Lease.



[signatures begin on next page]




C-1




 









 





     IN WITNESS WHEREOF, Landlord and Tenant have executed this document as of the first date set
forth in the first paragraph above.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	WITNESSES:	 	 	 	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	BOCA 54 NORTH LLC, a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Boca 54 Land Associates LLC, a Delaware

limited liability company, its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:
	 	Flagler Boca 54, LLC, a Florida	 	 
	 

	 	 	 	 	 	 	 	 	 	limited liability company, its	 	 
	 

	 	 	 	 	 	 	 	 	 	Managing Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 

	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 )	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 )	 	 	 	 	 	 	 	 
	COUNTY OF

	 	 	 	 )	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 






          The foregoing instrument was acknowledged before me this                                          day of            
                            ,
200___ by                                         , as                                          of Flagler Boca 54, LLC, a Florida limited
liability company, on behalf of the limited liability, which limited liability company is Managing
Member of Boca 54 Land Associates LLC, a Delaware limited liability company, on behalf of the
limited liability company, which limited liability company is Sole Member of BOCA 54 NORTH LLC, a
Delaware limited liability company, on behalf of the limited liability company. He/She is
personally known to me or produced a valid driver’s license as identification.




	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Notary Public	 	 	 	 
	 

	 	Print Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	My commission expires:	 	 






[signatures continue on next page]




C-2




 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	OFFICE DEPOT, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 

	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	 	 	 	 	 
	COUNTY OF

	 	 	 	 	)	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 






          The foregoing instrument was acknowledged before me this                                          day of
                                        ,
200___ by                      
                   , as                                          of OFFICE DEPOT, INC., a Delaware corporation,
on behalf of the corporation. He/She is personally known to me or produced a valid driver’s
license as identification.




	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Notary Public	 	 	 	 
	 

	 	Print Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	My commission expires:	 	 






C-3

        .





 











 





EXHIBIT “D”




BASE RENT




     Subject to adjustment as expressly set forth in this Exhibit, commencing on the Base Rent
Commencement Date, Base Rent shall be as follows:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Monthly Base Rent
	Year*	 	Annual Base Rent	 	(Not Incl. Sales Tax)
	1
	 	$	14,354,612.01	 	 	$	1,196,217.67	 
	2
	 	$	14,713,477.31	 	 	$	1,226,123.11	 
	3
	 	$	15,081,314.24	 	 	$	1,256,776.19	 
	4
	 	$	15,458,347.10	 	 	$	1,288,195.59	 
	5
	 	$	15,844,805.77	 	 	$	1,320,400.48	 
	6
	 	$	16,240,925.92	 	 	$	1,353,410.49	 
	7
	 	$	16,646,949.07	 	 	$	1,387,245.76	 
	8
	 	$	17,063,122.79	 	 	$	1,421,926.90	 
	9
	 	$	17,489,700.86	 	 	$	1,457,475.07	 
	10
	 	$	17,926,943.38	 	 	$	1,493,911.95	 
	11
	 	$	18,375,116.97	 	 	$	1,531,259.75	 
	12
	 	$	18,834,494.89	 	 	$	1,569,541.24	 
	13
	 	$	19,305,357.26	 	 	$	1,608,779.77	 
	14
	 	$	19,787,991.20	 	 	$	1,648,999.27	 
	15
	 	$	20,282,690.98	 	 	$	1,690,224.25	 








 




			
	*	 	(commencing on the Base Rent Commencement Date)




The annual Base Rent is based on the Base Building Budget, which amount ($162,658,493) is subject
to adjustment in accordance with Section 4.4(b) of the Construction Addendum. Any Credit Amount or
Additional Amount amortized over the initial Term of the Lease in accordance with Section 4.4(b) of
the Construction Addendum shall be at a rate of 8.825%. The annual Base Rent will be increased by
two and one-half (2.5%) percent of the Base Rent for the immediately prior year, on each
anniversary of the Base Rent Commencement Date. The Base Rent shall not be determined on the basis
of the rentable square feet, gross square feet or other measure of the area of the Premises. The
parties agree to execute and deliver an amendment to this Lease reflecting any adjustment in the
Base Rent pursuant to Section 4.4 of the Construction Addendum.





D-1









 








EXHIBIT “E”




This instrument prepared by:




Eric D. Rapkin, Esq.

Akerman Senterfitt

Las Olas Centre II

350 East Las Olas Boulevard, Suite 1600

Ft. Lauderdale, Florida 33301




MEMORANDUM OF LEASE




          THIS MEMORANDUM OF LEASE is entered into and is effective as of the                      day of                     ,
2006, by and between BOCA 54 NORTH LLC, a Delaware limited liability company (the “Landlord”), and
OFFICE DEPOT, INC., a Delaware corporation (the “Tenant”).




     1. Landlord and Tenant are parties to that certain Lease Agreement dated                     ,
2006 (as the same may be amended from time to time, the “Lease”), pursuant to which Landlord has
leased to Tenant the premises described therein and located on the real property legally described
in Exhibit “A,” attached hereto and made a part hereof (the “Premises”).



     2. The term of the Lease will commence on the Term Commencement Date (as defined in the
Lease), and will continue for one hundred eighty (180) calendar months following the Base Rent
Commencement Date (as defined in the Lease), unless earlier terminated in accordance with the terms
of the Lease. The Lease also contains an option for Tenant to extend the term for two (2) terms of
ten (10) years each, subject to the terms and conditions set forth in the Lease.



     3. Tenant has also been granted a right of first offer to purchase the Premises.



     4. The Lease contains substantially the following language:



     “Tenant will have no authority or power, express or implied, to create or cause any
construction lien or claim of any kind against the Premises or any portion thereof. Tenant will
promptly cause any such liens or claims to be released by payment, bonding or otherwise within
thirty (30) days after request by Landlord, and will indemnify Landlord against losses arising out
of any such claim including, without limitation, legal fees and court costs. NOTICE IS HEREBY
GIVEN THAT LANDLORD WILL NOT BE LIABLE FOR ANY LABOR, SERVICES, OR MATERIAL FURNISHED OR TO BE
FURNISHED TO TENANT, OR TO ANYONE HOLDING THE PREMISES THROUGH OR UNDER TENANT, AND THAT NO



E-1









 




CONSTRUCTION OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES, OR MATERIALS WILL ATTACH TO OR
AFFECT THE INTEREST OF LANDLORD IN THE PREMISES. TENANT WILL DISCLOSE THE FOREGOING PROVISIONS TO
ANY CONTRACTOR ENGAGED BY TENANT PROVIDING LABOR, SERVICES, OR MATERIAL TO THE PREMISES.”




     5. If the term of the Lease expires or is earlier terminated, Landlord shall prepare (in
recordable form), and the parties shall promptly execute, a termination of this Memorandum, in form
and content reasonably acceptable to both parties hereto. If Tenant fails to execute such
termination within thirty (30) days after Landlord’s request, then Landlord may execute such
termination on Tenant’s behalf, and Landlord is deemed to be appointed by Tenant as Tenant’s
attorney-in-fact for the limited and sole purpose of executing the termination of this Memorandum.



     6. This Memorandum does not set forth the entire Lease but is only intended to give notice
thereof. Nothing contained herein shall be deemed to in any way to amend, modify or supersede the
terms of the Lease, which terms remain in full force and effect. In the event of any conflict
between the terms of the Lease and this Memorandum, the terms of the Lease shall prevail.



[signatures begin on next page]




E-2









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WITNESSES:	 	 	 	 	 	 	 	LANDLORD:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	BOCA 54 NORTH LLC, a
Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	 	 	Boca 54 Land Associates LLC, a Delaware	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	limited liability company, its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	By:
	 	Flagler Boca 54, LLC, a Florida	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	limited liability company, its	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	Managing Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	)	 	 	 	 	 	 	 	 	 	 	 
	COUNTY OF

	 	 	 	 	)	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





          The
foregoing instrument was acknowledged before me this                      day of                     , 200___ by
                    , as                      of Flagler Boca 54, LLC, a Florida limited
liability company, on behalf of the limited liability, which limited liability company is Managing
Member of Boca 54 Land Associates LLC, a Delaware limited liability company, on behalf of the
limited liability company, which limited liability company is Sole Member of BOCA 54 NORTH LLC, a
Delaware limited liability company, on behalf of the limited liability company. He/She is
personally known to me or produced a valid driver’s license as identification.




	 	 	 	 	 
	 	 	 
	 	 	Notary Public
	 

	 	Print Name:	 	 
	 

	 	 	 	 
	 	 	My commission expires:






[signatures continue on next page]




E-3









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	TENANT:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	OFFICE DEPOT, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 

	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	 	 	 	 	 
	COUNTY OF

	 	 	 	 	)	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 






          The foregoing instrument was acknowledged before me this                      day of                     , 200___by
                    , as                     of OFFICE DEPOT, INC., a Delaware corporation,
on behalf of the corporation. He/She is personally known to me or produced a valid driver’s
license as identification.




	 	 	 	 	 
	 	 	 
	 	 	Notary Public
	 

	 	Print Name:	 	 
	 

	 	 	 	 
	 	 	My commission expires:







E-4









 






EXHIBIT “A” TO MEMORANDUM OF LEASE




LEGAL DESCRIPTION



Parcels “B”, “C”, “D”, “E” and “F”, ARVIDA PARK OF COMMERCE PLAT NO. 11, according to the Plat
thereof, as recorded in Plat Book 50, Page 151, of the Public Records of Palm Beach County,
Florida.





E-5









 








EXHIBIT “F”




PERMITTED EXCEPTIONS





F-1









 








EXHIBIT “G”




SNDA





G-1









 








EXHIBIT “H”




QUALIFIED TRANSFEREES




     For purposes of Section 11.21 of the Lease, a “Qualified Transferee” is a person or entity, or
an entity that is controlled by a person or entity, that (i) is not a Disqualified Person or Entity
(as defined below), and (ii):



     (a) is an institutional or a private real estate investor or an Affiliate thereof, including
without limitation, an insurance company, pension fund, investment or hedge fund, real estate
investment trust, or real estate operating company, so long as such institutional or a private real
estate investor’s real estate equity portfolio aggregates at least $500 million; or



     (b) has a net worth of at least $250 million; or



     (c) has a long term credit rating of Baa3 or higher by Moody’s Investors Service (“Moody’s”)
(or its equivalent, if Moody’s revises its credit ratings), or BBB- or higher by Standard & Poor’s
Rating Group (“Standard & Poor’s”) (or its equivalent, if Standard & Poor’s revises its credit
ratings), or BBB- or higher by Fitch (or its equivalent, if Fitch revises its credit ratings); or



     (d) is a developer or manager of first-class office buildings and has a reputation in the
industry comparable to that of Stiles Corporation.



     A “Disqualified Person or Entity” is a person or entity, or an entity that is controlled by a
person or entity, that (x) has been convicted of or has pleaded guilty in a criminal proceeding for
any felony, or that is an on-going target of a grand jury investigation convened pursuant to
Applicable Laws concerning organized crime, money laundering, or unlawful narcotics; or (y) is
organized in or controlled from a country, the effects of the activities with respect to which are
regulated or controlled pursuant to the following United States laws and the regulations or
executive orders promulgated thereunder: (A) the Trading with the Enemy Act of 1917, 50 U.S.C.
App. §1, et seq., as amended; (B) the International Emergency Economic Powers Act of 1976, 50
U.S.C. §1701, et seq., as amended; or (C) the Anti-Terrorism and Arms Export Amendments Act of
1989, codified at Section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. § 2405(j),
as amended; or (z) is a national office products retailing company.




H-1









 








EXHIBIT “I”




LEGAL DESCRIPTION OF RELOCATION PROPERTY



Parcels “A”, “B”, “C” and “D”, ARVIDA PARK OF COMMERCE PLAT NO. 10, according to the Plat thereof,
as recorded in Plat Book 50, Page 149, of the Public Records of Palm Beach County, Florida, and
Parcel “A”, ARVIDA PARK OF COMMERCE PLAT NO. 11, according to the Plat thereof, as recorded in Plat
Book 50, Page 151, of the Public Records of Palm Beach County, Florida.





I-1









 








RIDER NUMBER 1 TO LEASE

dated                     , 2006

between Boca 54 North LLC, as Landlord,

and Office Depot, Inc., as Tenant




     A. Landlord hereby grants Tenant two (2) consecutive options to renew (individually a “Renewal
Option” and collectively, the “Renewal Options”) the original Term, which Renewal Options shall be
subject to the covenants and conditions hereinafter set forth in this Rider. The first Renewal
Option shall be an option to extend the original Term for a period of ten (10) years (the “First
Renewal Term”), commencing as of the date immediately following the expiration of the original
Term. The second Renewal Option shall be an option to extend the First Renewal Term for one (1)
additional period of ten (10) years (“Second Renewal Term”) commencing as of the date immediately
following the expiration of the First Renewal Term (the First Renewal Term and the Second Renewal
Term, to the extent so exercised, are collectively referred to as the “Renewal Terms”). All terms
not defined herein shall have the meaning ascribed to them in the Lease.



     B. No earlier than eighteen (18) months and no later than fifteen (15) months prior to the
expiration of the initial Term of this Lease or the First Renewal Term, as may be applicable,
Tenant shall have the right to request, in writing, that Landlord provide the Market Rent Notice
(as defined in subsection E(2) below) (the “Request Notice”). Landlord shall provide the Market
Rent Notice within thirty (30) days after Tenant has given the Request Notice, provided, however,
that regardless of whether Tenant has given a Request Notice, Landlord shall give Tenant the Market
Rent Notice no earlier than fifteen (15) months and no later than thirteen (13) months prior to the
expiration of the initial Term of this Lease or the First Renewal Term, as may be applicable.
Tenant shall give Landlord written notice (the “Renewal Notice”) of Tenant’s election to exercise
the applicable Renewal Option not later than twelve (12) months prior to the expiration of the
initial Term of this Lease or the First Renewal Term, as may be applicable; provided that Tenant’s
failure to give an applicable Renewal Notice by said date, whether due to Tenant’s oversight or
failure to cure any existing defaults or otherwise, shall render the Renewal Options null and void.
If Tenant fails to exercise a Renewal Option in accordance with the terms and conditions of this
Rider on or before the applicable date, then all Renewal Options shall terminate and have no
further force or effect, without further notice from Landlord.



     C. Tenant shall not be permitted to exercise the Renewal Option if at the time Tenant delivers
its Renewal Notice Tenant is in default under the Lease beyond any applicable notice and cure
periods.



     D. Tenant shall be deemed to have accepted the Premises in “as-is” condition as of the
commencement of the Renewal Terms, it being understood and agreed that Landlord shall have no
obligation to perform any tenant improvements or renovate the Premises or any portion of the
Buildings as a result of Tenant’s renewal of the Lease.



     E. The covenants and conditions of the Lease in force during the original Term, as the same
may be modified from time to time, shall continue to be in effect during the Renewal Terms, except
as follows:



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          (1) The Base Rent for the Renewal Terms shall be an amount equal to the then Fair
Market Rental Value (defined below) of the Premises. “Fair Market Rental Value” of the
Premises shall be an amount, including Base Rent and annual escalations, determined on the
basis of the then-prevailing market rental rates for tenants of comparable size and
creditworthiness for comparable office buildings in Boca Raton, Florida.




          (2) The Fair Market Rental Value shall be set forth in a written notice from Landlord
to Tenant (the “Market Rent Notice”). The Market Rent Notice shall specify the Fair Market
Rental Value for each of the ten (10) years contained in such Renewal Term. If Tenant shall
disagree with the Fair Market Rental Value set forth in the Market Rent Notice established
by Landlord for the Premises, Tenant shall, within twenty-one (21) days after receipt of the
Market Rent Notice (the “Tenant’s Notice Deadline”), furnish Landlord with a written notice
of its disagreement (the “Tenant’s Notice”), and Landlord and Tenant shall commence
negotiations to agree upon the Fair Market Rental Value. If the Tenant’s Notice is not
received by Landlord by the Tenant’s Notice Deadline, the Fair Market Rental Value shall be
as set forth in the Market Rent Notice to Tenant. If Landlord and Tenant are unable to
reach agreement within twenty-one (21) days after the Landlord’s receipt of the Tenant’s
Notice (the “Renewal Rent Negotiation Period”), then the Fair Market Rental Value for such
Renewal Term shall be determined as follows:





          (a) No later than ten (10) business days following the expiration of the
Renewal Rent Negotiation Period, Tenant and Landlord shall select an individual as
an appraiser of its choice (the “Tenant’s Appraiser”) and give Landlord written
notice of such appraiser’s name, address, and telephone number.




          (b) No later than ten (10) business days following the expiration of the
Renewal Rent Negotiation Period, Landlord shall select an appraiser of its choice
(the “Landlord’s Appraiser”) and give Tenant written notice of such appraiser’s
name, address, and telephone number.




          (c) The two (2) appraisers so selected by Landlord and Tenant shall then select
an individual as a third (3rd) appraiser (the “Third Appraiser”) within fifteen (15)
days after receipt by Tenant of Landlord’s notification as to its selection of
Landlord’s Appraiser, and furnish Landlord and Tenant written notice of such Third
Appraiser’s name, address, and telephone number. If the appraisers selected by
Landlord and Tenant fail to appoint the Third Appraiser within the time and in the
manner herein, then Landlord and/or Tenant shall promptly apply to the local office
of the local Appraisal Institute Office for the appointment of the Third Appraiser.




          (d) All appraisers selected pursuant to this Section shall be M.A.I.
appraisers, unless Landlord and Tenant otherwise agree in writing, each having at
least ten (10) years’ experience with commercial office property in Palm Beach
County, Florida. Landlord’s Appraiser and Tenant’s Appraiser shall each



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have thirty (30) days after the selection of the Third Appraiser to submit to
the Third Appraiser their respective appraisals for Fair Market Rental Value. Each
appraisal shall set forth the assumptions made therein by the appraiser with respect
to brokerage fees and tenant allowance and all other concessions and relevant market
factors in determining Fair Market Rental Value. The Third Appraiser shall have
thirty (30) days thereafter to select one appraisal or the other and the selection
by the Third Appraiser shall be final and binding upon the parties.




          (e) If Tenant fails to select Tenant’s Appraiser in the manner and within the
time specified above for the applicable Renewal Term, then the Fair Market Rental
Value for the applicable Renewal Term shall be the amount set forth in the Market
Rent Notice. If Landlord fails to select Landlord’s Appraiser in the manner and
within the time specified above for the applicable Renewal Term, then Landlord shall
not have the right to select an appraiser to determine Fair Market Rental Value, so
long as Tenant shall have timely selected Tenant’s Appraiser, and, in such event,
Tenant’s Appraiser shall determine Fair Market Rental Value in accordance with the
provisions of subsection (d) above.




          (f) Landlord and Tenant shall share equally all fees, costs, and expenses
incurred in connection with retaining the Third Appraiser. Landlord and Tenant
shall each bear their own attorneys’ fees incurred with respect to the procedure set
forth in this subsection E.



     F. Following expiration of the Second Renewal Term as provided herein, Tenant shall have no
further right to renew or extend the Lease.



     G. The Renewal Option shall not be transferable by Tenant, except in conjunction with a
permissible assignment (including, without limitation, an assignment in an Exempt Transfer) in
accordance with the applicable provisions of the Lease.




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