EXHIBIT 10.2
SECOND AMENDMENT TO
LEASE
THIS SECOND AMENDMENT TO
LEASE (this “Second
Amendment”), is made effective as of the 8
th day of May, 2009 (the “Second Amendment
Effective Date”), by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP , a Pennsylvania limited partnership
(“Landlord”), and ELECTRONIC ARTS-TIBURON , A
FLORIDA CORPORATION f/k/a Tiburon Entertainment, Inc.
(“Tenant”).
BACKGROUND:
A. Landlord’s predecessor in
interest, ASP WT, L.L.C., a Delaware limited liability company, and
Tenant entered into that certain Lease for Space at Summit Park I,
dated June 15, 2004 (the “Original Premises
Lease”), with a Lease Commencement Date of January 1,
2005, and an expiration date of June 30, 2010, for 117,201
square feet in the building known as Maitland Summit Park I,
located at 1950 Summit Park Drive, Maitland, Florida (the
“Original Premises”).
B. Landlord and Tenant entered into
that certain First Amendment to Lease, dated December 13, 2005
(the “First Amendment”) (with the Original Premises
Lease and the First Amendment being together referred to as the
“Original Lease”, and with the Original Lease, as
modified by the terms and conditions of this Second Amendment,
being hereafter collectively referred to as the
“Lease”) for Building I and 23,163 square feet on the
6th Floor in the building known as Maitland Summit Park II, located
at 1958 Summit Park Drive, Maitland, Florida (the “Expansion
Premises”) (the Original Premises and the Expansion Premises
are hereafter collectively the “Leased
Premises”).
C. Landlord and Tenant desire to
extend the Lease Term for an additional period of five
(5) years and four (4) months with respect to the
Original Premises and for an additional period of five
(5) years with respect to the Expansion Premises, and provide
for two (2) additional options to renew, each for a period of
five (5) years
D. Tenant desires to have and
Landlord has agreed to provide Tenant with the option to lease the
11,039 square foot suite currently occupied by ZOM, Inc., a Florida
corporation, located in Building I (the “Second Expansion
Premises”), to be effective no earlier than December 1,
2010 and no later than November 30, 2013, on the terms and
conditions set forth below in this Second Amendment.
E. Landlord and Tenant desire to
amend the Original Lease to extend the Lease Term, address the
option for the Second Expansion Premises and to provide for certain
other matters, all as set forth in this Second
Amendment.
NOW, THEREFORE
, the parties hereto, in
consideration of the mutual promises and covenants contained herein
and in the Lease, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, agree as
follows:
1. Recitals; Capitalized
Terms . The recitals set forth above are true and correct and
are incorporated herein by this reference. All capitalized terms
not otherwise defined herein shall have the meanings ascribed
thereto in the Original Lease.
2. Definitions .
Section 1.1 of the Original Lease is hereby deleted in its
entirety and the following new Section 1.1 is inserted in
place and in lieu thereof:
1.1 DEFINITIONS
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a.
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Leased
Premises shall mean those
suites/floors within both the Original Premises and the Expansion
Premises, and shall include the Second Expansion Premises if and
when the option for the Second Expansion Premises is exercised by
Tenant, subject to such other adjustments as are specifically
contemplated and provided in the Lease.
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b.
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Original
Premises shall mean those
suites/floors within Building I as described in Schedule
1.
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c.
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Expansion
Premises shall mean those
suites/floors within Building II as described in Schedule
1.
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d.
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Second
Expansion Premises shall
mean those suites/floors within Building I as described in
Section 5 of this Second Amendment.
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e.
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Building shall mean both Building I and Building
II.
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f.
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Building
I shall mean Maitland
Summit Park I located at 1950 Summit Park Drive, Orlando, Florida
32801.
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g.
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Building
II shall mean Maitland
Summit Park II located at 1958 Summit Park Drive, Orlando, Florida
32801.
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h.
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Project shall mean both Building I and Building II, and
the parking facilities and the property owned by Landlord on which
the said buildings are located.
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i.
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Tenant’s Building I Square
Footage shall mean
117,201 rentable square feet (which shall increase to 128,240
rentable square feet if and when the option for the Second
Expansion Premises is exercised by Tenant); Total Building I
Square Footage of Building I shall mean 128,240 rentable square
feet.
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j.
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Tenant’s Building II Square
Footage shall mean 23,163
rentable square feet; Total Building II Square Footage of
Building II shall mean 128,934 rentable square feet.
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k.
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Lease
Commencement Date shall
mean January 1, 2005; Lease Expiration Date shall mean
October 31, 2015, subject to extension for Renewal Term(s) as
provided in Section 12.4 of this Lease; Lease Term
shall mean the time period between and including the Lease
Commencement Date and Lease Expiration Date.
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l.
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Extension
Term shall mean:
(i) the time period between (and including) July 1, 2010
and October 31, 2015 with respect to Building I, and
(ii) the time period between (and including) November 1,
2010 and October 31, 2015 with respect to Building
II.
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m.
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Building I
Base Rent shall mean
those amounts as set forth in Section 13.17 of this Lease,
plus applicable sales tax, if any; but subject to adjustment as
provided in this Lease.
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n.
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Building II
Base Rent shall mean
those amounts as set forth in Section 13.17 of this Lease,
plus applicable sales tax, if any; but subject to adjustment as
provided in this Lease.
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o.
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Base
Rent shall mean Building
I Base Rent and Building II Base Rent combined, together with base
rent payable, if any, for the Second Expansion Premises by Tenant
pursuant to this Lease, plus applicable sales tax.
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p.
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Tenant’s Building I Pro Rata
Share shall mean 91.4%,
but subject to adjustment should either or both of the options
under Section 12.3 and/or Section 12.4 of this Lease be
exercised.
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q.
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Tenant’s Building II Pro Rata
Share shall mean 17.97%,
but subject to adjustment should either or both of the options
under Section 12.3 and/or Section 12.4 of this Lease be
exercised.
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r.
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Tenant’s Pro Rata Share
shall mean Tenant’s Building I
Pro Rata Share and Tenant’s Building II Pro Rata Share
combined.
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s.
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Deposit Not used; there is no deposit; Prepaid
Rent Not used; there is no Prepaid Rent.
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t.
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Permitted
Purpose shall mean
general office use and such other ancillary uses as are
specifically and expressly contemplated or permitted pursuant to
this Lease.
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u.
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Authorized
Number of Parking Spaces shall mean: (i) with respect to Building I
and the Original Premises, a minimum of 484 unreserved spaces at a
rate of $-0- per space per month, and (ii) with respect to
Building II and the Expansion Premises, 4.5 parking spaces per
1,000 rentable square feet unreserved parking spaces in the
Building II parking structure (i.e., 103 spaces), at a rate of $-0-
per space per month; provided, however, of the 103 Building II
parking spaces, Landlord shall provide 4 reserved parking spaces,
at no charge, at locations to be determined by Landlord in the
Building II parking structure. In addition, Tenant may use
additional parking spaces in the Building II parking structure in
excess of the foregoing ratio without any additional consideration,
provided that
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Tenant’s
use of the same does not interfere with the use of such parking by
other tenants of Building II. Once Landlord substantially completes
construction of its next phase of development at Maitland Summit
Park, the foregoing right of the Tenant to use additional parking
within the Building II parking structure beyond the 4.5 parking
spaces per 1,000 rentable square feet shall terminate and expire
(provided, however, that during the construction period, Landlord
may reduce such additional parking, if necessary, to accommodate
the construction).
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v.
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Managing
Agent shall mean
Landlord.
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w.
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Landlord’s Mailing Address
: 2400 Lake Orange Drive, Suite 110,
Orlando, Florida 32837, telephone: 407-447-1776, and fax:
407-888-3242. Copy to: Attn: General Counsel, 500 Chesterfield
Parkway, Malvern, Pennsylvania 19355.
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x.
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Tenant’s Mailing Address
: 1950 Summit Park Drive, Orlando,
Florida 32810, telephone: 407-386-4000, and fax: 407-386-4555, with
copy to 209 Redwood Shores Parkway, Redwood City, California 94065,
attn: Vice President, Global Real Estate.
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y.
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Market Base
Rent shall mean market
rents, tenant improvements, rent concessions and other typical and
material financial lease terms for renewing tenants in similar
Class A office space in Maitland, Florida.
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z.
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Business
Day shall mean each
weekday that the majority of Banks located in Orange County,
Florida are open for business.
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3. Lease Term . The Lease
Term shall be extended for both the Original Premises and the
Expansion Premises, for an additional sixty-four (64) months
with respect to the Original Premises and for an additional sixty
(60) months with respect to the Expansion Premises, with each
terminating concurrently on the Lease Expiration Date of
October 31, 2015, but subject to extension for Renewal Term(s)
as provided in Section 12.4 of this Lease.
4. Landlord Improvements .
During the Lease Term, Landlord will implement the following
capital improvement projects for the Building: (A) by no later
than June 1, 2009, Landlord will replace the roofing materials
(and not structural components) for Building I, (B) by no
later than June 1, 2009, Landlord will use diligent and
commercially reasonable efforts to make any other repairs as may be
reasonably necessary to correct and/or diminish to the extent
practicable, any water leaks for Building II, (C) by no later
than January 1, 2010, Landlord will (i) connect all
unconnected and currently installed VAV’s and HVAC units in
the Leased Premises to the existing Energy Management System (EMS),
(ii) connect all common area lighting to the EMS,
(iii) allow Tenant to monitor and control the HVAC and
lighting systems of the Leased Premises by means of the EMS,
(iv) by no later than October 1, 2009, install a new fire
panel for Building I, and until replaced, maintain the existing
fire panel in working condition, (D) perform such repairs and
maintenance to the cooling towers for Building I and install any
requisite upgrades as commercially reasonable in order to keep such
cooling towers in
4
working condition, and (E) such other
capital improvements for the Building as may be deemed warranted by
Landlord during the Lease Term in the exercise of commercially
reasonable discretion, and consistent with Landlord’s
approved capital improvement budget, as may be modified from time
to time, for the Leased Premises. These possible other capital
improvements include, but are not limited to, the replacement of
the cooling towers for Building I and Building II, and renovation
and refurbishment of all Building restrooms on floors that are
fully or partially occupied by Tenant. Such restroom renovations
would include replacement of damaged tiles and replacement of
existing faucets with automatic sensor faucets by October 1,
2009. Other such restroom renovations (to include replacement of
sinks, mirrors, countertops, and fixtures of the type and quality
selected by Landlord subject to reasonable approval by the Tenant)
would be performed by Landlord within one and a half
(1.5) years after the Second Amendment Effective Date. Any and
all capital improvements made by Landlord as described in this
Paragraph 4 shall be deemed the “Landlord’s Additional
Capital Improvements.” Notwithstanding the foregoing, nothing
in this Section 4 shall alleviate or diminish Landlord’s
maintenance obligations set forth in this Lease, and such
maintenance activities shall include, without limitation, the
repair of any non-working bathroom fixtures and other equipment in
the Building restrooms on floors that are fully or partially
occupied by Tenant.
5. Second Expansion Option .
During the Lease Term, Tenant shall have the one (1) time
right and option to lease (“Option to Lease”) the
11,039 square feet suite in Building I currently occupied by ZOM,
Inc. (the “Second Expansion Premises”) commencing no
earlier than December 1, 2010, which Second Expansion Premises
are more particularly described and depicted on Exhibit
“A” attached hereto and incorporated herein by
this reference. If Tenant desires to exercise its Option to Lease,
Tenant shall give Landlord written notice thereof (“Second
Expansion Option Notice”), which Second Expansion Option
Notice shall specify the date (being the date that is no later than
ten (10) months and no earlier than six (6) months after
the date of the Second Expansion Option Notice) on which Tenant
desires its lease and occupancy of the Second Expansion Premises to
commence. Notwithstanding the foregoing, Tenant shall not be
entitled to exercise the Option to Lease effective after
November 30, 2013. Within fifteen (15) Business Days
after delivery of Tenant’s Second Expansion Notice to
Landlord, Landlord shall deliver to Tenant a proposed amendment to
this Lease establishing the lease terms for the Second Expansion
Premises (which proposed amendment shall be consistent with the
terms and conditions of this Section 5, shall contain mutually
satisfactory terms and shall be negotiated and executed by Landlord
and Tenant in good faith). The foregoing Option to Lease:
(i) is subject to there being no Tenant event of default under
this Lease that is not cured within the applicable cure period and
provided that Landlord has not given Tenant notice of default more
than two (2) times during the immediately preceding twelve
(12) months, (ii) is personal to Tenant and may not be
assigned (except in the case of a permitted assignment or sublease
of this Lease as provided in Section 6.4 of this Lease), and
(iii) shall be available to and exercisable by the Tenant only
when the Tenant is in actual possession and physical occupancy of
the Leased Premises.
If Tenant exercises the Option to
Lease, Landlord shall provide the Tenant Improvement Allowance
(defined below) in the amount and for such purposes as provided in
Section 9B of this Second Amendment. Upon exercise of Option
to Lease, the lease term for the Second Expansion Premises shall
commence on the date specified in the Second Expansion
Option
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Notice (being the date that is no later than ten
(10) months and no earlier than six (6) months after the
date of the Second Expansion Option Notice (the “Second
Expansion Commencement Date”), and shall expire on the Lease
Expiration Date. Base Rent, Operating Costs and other amounts due
with respect to the Second Expansion Premises shall first become
due on the Second Expansion Commencement Date. If the Second
Expansion Commencement Date is not the first day of a calendar
month, then Base Rent, Operating Costs and other amounts due under
the Lease with respect to the Second Expansion Premises shall be
apportioned on a per diem basis and shall be paid on or before the
Second Expansion Commencement Date. The initial base rent for the
Second Expansion Premises shall be an amount equal to the Building
II Base Rent applicable as of the Second Expansion Commencement
Date, and such Second Expansion space base rent shall be adjusted
thereafter in amounts equal to the Building II Base Rent
adjustments for the remaining time period of the Lease Term.
Notwithstanding the foregoing, Tenant’s right to lease the
Second Expansion Premises is subject to the existing rights of
Charles Schwab & Co., Inc.
(“Schwab”).
6. Parking for Second Expansion
Premises . If Tenant exercises its Option to Lease as provided
in Section 5 of this Second Amendment, then the parking deck
for Building I will be designated for Tenant’s exclusive use,
on the same terms and conditions as provided in Schedule 5 attached
to the Original Premises Lease.
7. Base Rent Adjustment .
Section 13.17 of the Lease is hereby revised to include the
following new paragraphs:
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Subject to
adjustment based on the determination of Operating Expenses
pursuant to Section 3.3 of this Lease, Building I Base Rent
shall be adjusted on the following dates and in the following
manner (with Month 67 being July, 2010):
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Total Base Rent per Square Foot
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Total Base Rent per Month
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Total Base Rent for
Period
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Rent
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Operating Costs
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Total
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Rent
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Operating Costs
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Total
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Months 67-70
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$
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17.07
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$
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7.21
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$
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24.28
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$
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166,718.43
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$
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70,418.27
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$
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237,136.69
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$
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948,546.77
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Months 71-82
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$
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15.50
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$
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7.76
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$
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23.26
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$
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151,384.63
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$
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75,789.98
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$
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227,174.61
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$
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2,726,095.26
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Months 83-94
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$
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15.89
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$
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7.95
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$
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23.84
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$
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155,193.66
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$
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77,645.66
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$
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232,839.32
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$
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2,794,071.84
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Months 95-106
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$
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16.28
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$
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8.16
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$
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24.44
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$
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159,002.69
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$
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79,696.68
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$
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238,699.37
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$
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2,864,392.44
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Months 107-118
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$
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16.69
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$
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8.36
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$
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25.05
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$
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163,007.06
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$
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81,650.03
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$
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244,657.09
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$
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2,935,885.05
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Months 119-130
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$
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17.11
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$
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8.57
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$
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25.68
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$
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167,109.09
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$
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83,701.05
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$
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250,810.14
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$
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3,009,721.68
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Subject to adjustment based on the
determination of Operating Expenses pursuant to Section 3.3 of
this Lease, Building II Base Rent shall be adjusted on the
following dates and in the following manner (with Month 55 being
November, 2010):
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Total Base Rent per Square Foot
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Total Base Rent per Month
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Total Base Rent for
Period
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Rent
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Operating Costs
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Total
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Rent
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Operating Costs
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Total
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Months 55-66
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$
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15.50
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$
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6.57
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$
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22.07
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$
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29,918.88
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$
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12,681.74
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$
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42,600.62
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$
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511,207.41
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Months 67-78
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$
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15.89
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$
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6.73
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$
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22.62
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$
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30,671.67
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$
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12,990.58
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$
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43,662.26
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$
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523,947.06
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Months 79-90
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$
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16.28
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$
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6.91
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$
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23.19
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$
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31,424.47
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$
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13,338.03
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$
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44,762.50
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$
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537,149.97
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Months 91-102
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$
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16.69
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$
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7.08
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$
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23.77
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$
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32,215.87
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$
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13,666.17
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$
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45,882.04
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$
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550,584.51
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Months 103-114
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$
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17.11
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$
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7.25
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$
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24.36
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$
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33,026.58
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$
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13,994.31
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$
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47,020.89
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$
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564,250.68
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8. Operating Costs .
Section 3.3 of the Original Premises Lease and Section 4
of the First Amendment are hereby deleted in their entirety and the
following new Section 3.3 is hereby inserted in place and in
lieu thereof:
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3.3
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OPERATING
COSTS . Tenant shall pay
its share of Operating Costs in accordance with the terms and
conditions of this Section 3.3, as follows:
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(A)
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For the
purposes of this Section 3.3 and this Lease, the following
terms shall have the following meanings and definitions:
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(i)
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“Operating Costs” shall mean all
reasonable and actual expenses relating to the Leased Premises, the
Building or the Project, including but not limited to: real estate
taxes and assessments; gross rents, sales, use, business,
corporation, franchise or other taxes (except income taxes);
utilities not separately chargeable to other tenants; insurance
premiums and (to the extent used) deductibles; maintenance, repairs
and replacements; refurbishing and repainting; equipment, tools,
materials and supplies; air conditioning, heating and elevator
service; property management including typical market management
fees; security; employees and contractors; resurfacing and
restriping of walks, drives and parking areas; signs, directories
and markers; landscaping; and snow and rubbish removal. Operating
Costs shall not include expenses for legal services, real estate
brokerage and leasing commissions, Landlord’s income taxes,
income tax accounting, interest, depreciation, general corporate
overhead, or capital improvements to the Building or Project except
for capital improvements installed for the purpose of reducing or
controlling expenses, or required by any governmental or other
authority having or asserting jurisdiction over the Building or
Project. If any expense, though paid in one year, relates to more
than one calendar year, at option of Landlord, such expense may be
proportionately allocated among such related calendar years. In the
event that the Building is not fully leased during any calendar
year, Landlord may make appropriate adjustments to the Operating
Costs, using reasonable projections, to adjust such costs to an
amount that would normally be expected to be incurred if the
Building were 95% leased, and such adjusted costs shall be used for
purposes of this Section 3.3. Landlord and Tenant hereby
acknowledge and agree that the term “Operating Costs”
as used in this Lease shall mean those defined Operating Costs for
Building I and Building II, respectively. For purposes of
calculating Tenant’s Pro Rata Share of any Operating Costs
for each of Building I and Building II, the defined Operating Costs
for Building I and the defined Operating Costs for Building II
shall be calculated, treated, allocated and assessed separately,
such that Tenant is obligated to pay, in accordance with the terms
and conditions of this Section 3.3,
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Tenant’s
Building I Pro Rata Share of any Operating Costs for Building I and
Tenant’s Building II Pro Rata Share of any Operating Costs
for Building II. For the purposes of the calculation, assessment
and payment of any Operating Costs pursuant to this
Section 3.3, the term “Building” as used therein
shall mean either Building I or Building II, as the case may
be.
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(ii)
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“Base
Year” shall mean: (i) the calendar year 2005 with
respect to Building I; and (ii) the calendar year 2006 for
Building II.
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(iii)
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“Excess
Operating Costs” shall mean, during that portion of the Lease
Term ending on (and including) October 31, 2010 (the
“Remaining Original Lease Term”), any excess of
(x) Operating Costs for any calendar year following the Base
Year over (y) the actual Operating Costs of the Base
Year.
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(iv)
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“Controllable Operating Costs” shall
mean, during the Extension Term and any Renewal Term(s), common
area maintenance, landscaping, HVAC maintenance and supplies,
elevator maintenance, personnel for the Project, fire protection,
pest extermination, management fee as long as management services
are being provided by Landlord or an affiliate of Landlord, and
other miscellaneous maintenance.
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(v)
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“Non-Controllable Operating Costs”
shall mean, during the Remaining Original Lease Term, any Operating
Costs, including without limitation, taxes, insurance and
utilities, as well as other expenses, that increase by more than
four percent (4%) per annum by reason of one or more Force
Majeure event. During the Extension Term and any Renewal Term(s),
“Non-Controllable Operating Costs” shall mean all
Operating Costs that are not Controllable Operating
Costs.
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(vi)
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“Operating Costs Cap” shall mean a
maximum annual increase in the amount of Controllable Operating
Costs equal to four percent (4%) per annum.
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(vii)
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“Force
Majeure” shall mean any act of God, fire, natural disaster,
accident, act of government, shortages of material or supplies or
any other cause reasonably beyond the control of such
party.
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(B)
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During the
Remaining Original Lease Term, Tenant shall pay its share of Excess
Operating Costs in accordance with the following terms of this
Section 3.3(B):
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Tenant shall pay, in equal monthly
installments, Tenant’s Pro Rata Share of any estimated Excess
Operating Costs for each calendar
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year, prorated
for any partial calendar year, during the Remaining Original Lease
Term. Annually, or from time to time, based on actual and projected
Operating Cost data, Landlord may adjust its estimate of Operating
Costs upward or downward. Within fifteen (15) days after
notice to Tenant of a revised estimate of Operating Costs, Tenant
shall remit to Landlord a sum equal to any shortage of the amount
which should have been paid to date for the then current calendar
year based on the revised estimate, and all subsequent monthly
estimated payments shall be based on the revised estimate. Landlord
shall cap controllable operating cost increases, constituting the
Excess Operating Costs, to four percent (4%) per year,
provided that such Operating Cost Cap shall not apply to
Non-Controllable Operating Costs. Should the Force Majeure event
subside and cease to affect Non-Controllable Operating Costs, such
expenses shall be adjusted downward as appropriate and shall again
be subject to the Operating Costs Cap in increases described
above.
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(C)
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During that
portion of the Lease Term subsequent to (and including)
November 1, 2010 (the “Remainder Lease Term”), but
not during the Remaining Original Lease Term, the Base Rent and
Tenant’s share of Operating Costs shall be governed by the
following terms and conditions of this
Section 3.3(C):
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The Base Rent applicable during the
Remainder Lease Term, as set forth in Section 13.17 of this
Lease, has been calculated using an estimate of the Operating
Costs. The Base Rent for the first year of the Remainder Lease
Term shall be
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