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Backup Documents 07/27-28/2010 Item # 9BB URNHAM INSTITUTE for MEDICAL RESEARCH Agreement package BURNHAIIM INSTITUTE for MEDICAL RESEARCH Frorn Rc.cearrh, the Power to Cure DISCLOSURE LETTER This Disclosure Letter is provided by Burnham Institute for Medical Research ( "Burnham ") to orange County, Florida, City of Orlando, Florida, and Lake Nona Land Company, LLC (the "Funding Parties ") in connection with the Grant Agreement, dated as of March 6, 2007 by and among Burnham and the Funding Parties (the "Agreement "), This Disclosure Letter and the information and disclosures contained herein are intended only to qualify and limit the representations, warranties and covenants of Burnham contained in the Agreement, and shall not be deemed to expand in any way the scope or effect of any of such representations, warranties or covenants. The section numbers in this Disclosure Letter correspond to.the section numbers in the Agreement; provided, however, that any information disclosed herein under any section number shall be deemed to be disclosed and incorporated in any other section of the Agreement where such disclosure would be appropriate and reasonably apparent. Disclosure of any information or document herein is not a statement or admission that it is material or required to be disclosed herein. References to any document do not purport to be complete and are qualified in their entirety by the document itself. Capitalized terms used but not defined herein shall have the same meanings given them in the Agreement. Part III.A.5. Burnham's representations and warranties in Part III.A.5. are subject to the following: Burnham has provided the Bond Documents to the Funding Parties for review (a copy of the definition of Gross Revenues from the Bond Documents is provided below). Burnham has reviewed the Agreement and the terms of the Bond Documents with outside counsel to Burnham who represented Burnham in connection with the Bond Documents. Such counsel has advised Burnham that the intent of the exclusions from the Gross Revenues definition in the Bond Documents is to allow grants designated for a specific purpose to be received by Burnham without fear that such grants would be used to pay for the bonds. Based on such counsel's understanding of the conditions of the Florida grant and such counsel's understanding of the Bond Documents (including the Gross Revenues definition), such counsel believes that the intent of the Bond Documents is that the funds to be provided for the specific purpose noted in the Agreement would not fall within Gross Revenues; however, such counsel has not undertaken further investigation into the conditions of the Florida grant and has not rendered a legal opinion on the matter. City until Meeti • JJ � - / % Itempocume .� 3 o5 (o / 531246 AMD 10901 North Torrey Pints Road i La jo11a, California 920.37 1 858.646.3100 1 858.646.3199 fax I wwwburnham.o�V i 0. "Gym R vMW moans all moneys, fees, rates, receipts, rentals, urges, issues and income receivcd for, received by or derived tromp, thr, hwdtwoa the oporati m of the Institute or the Fs Mies or say other soumc whatsoever, mchuling Wkbout limitation 8lftv� balueats, grants, devises, coutn'badons, moneys nceived from the operation of the institute's business or tho pos an of its prvperdes, iadirect cost rocove y paymouts under rawer ch grant am meats, insmence proceals of condemuwdon awards, and all Knights to receive rho same, whether in the form of accounts, mounts recaivablc, contract rights or other rights, and the pwonds of the same whether now owned or hold or heroaft coming b to being. Notwithstanding anything heroin to the contrary, Cimss Revenues shall not inahule (i� gifts, grants, devises, bequests and contributions desigaated by the rniaicear thereof to a specific purpose ftwon,sistent with their use for t o payment of puncipel of, prasniurn, if any, .end intorea on Indebtedness or for the payment of opera t g oWnscs; (h) any memo, moneys or income (maluding, without limitati(m, royalty or ]iaense income) for which the Institute has a contractual obligation to'pay to My other Person; Ar (�) any procoods of insurance (other than business 6m insra� nee}, sale proceeds ox condemnation awards attributable to any property of any kind that is subject to or finsmced under R W01110 fimIc#ng =W90mVA with roped to Subordinate Debt or Non- rmourse Debt. 531246 vl /SD BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit corporation N JdAn C. Reed, M.D., Ph.D. Titlel Pre4ident and Chief Executive Officer mail I I Aum 4w.i 1:7-xhibtf ,e if (o hall CG M P b4-j -« r:� l- 1fJ l Q rm�n,er-F r-0,6f j i � es Si k SKETCH OF DESCRIPTION NOT PLATTED \.06 /. Ir r /r - r " "'r• •• " _�. >f # Q r NB8'031417 11.80' ViII PT NOT PLA"ED BURNHAM S11E �"�' � �.' , � -- SEE SHEET 2 FOR PHASE ) PC DESCRIP710M AND NOTES. R -4Q00' A-104W'31" pm L- Lv" N8316'02"W W7' "\\ co-s 7261' / .' OJa'DS 02`W PT POINT of - � BEGINNING �57swooS"w NOT PATTED g 0 -Y -/ 0 i$s SO H UWE b1P 14 Y EETi R6-2 NaYhiJB'w tlQd4r!' X jo D•w 146 3!' — — — yE1CTIQ11 SEC" J.EGEdQ mN X T 4 35-24-JO 306.24 --.30 SEC Se -24-JO SECM, row. RANGE POINT OF PC PMr OF WtVAUM 0 300 600 cOmmmcEAIENT PCC POM1r OF COMPOUND CURVATURE JF � 1O 14 Pr PONr GF r Sd Nr NON -TZ& A DELTA L BEAM* Soda ' - 300 A RAM PREPARED FOR: 02/22/071 PH SCALE LAKE NONA LAND COMPANY DAX I BY IPTtoN BURMAN SITE _ (PNASE REffiQ#IS ASComAws, AIC. ImDONALD W. McINTOSH ASSOCIATES, INC. = 11001="101 wo, LIM ENGINEERS PLANNERS SURVEYORS 2200 PARK AVENUE NORTH, WI 7AER P FLORIDA 32789 (407) 844 -4068, u o ane Momw DRAWN BY; ft— CHECKED BY: A . JOB ND. SCALE SHEET NO UD UTI T ME SMARRE AM IM DATE. 12/15/09 DATE: 12/16/b6 26r31.00DA l "m= or 2 Re�EDR'AM M�a� A ►lLwoA uC____ Prittot TIw n —Fob -ROD ? — To0?AU wif UD—Pyo Fl %ProPM\2FIM \sdw \vcW \ftM@M Sftdwg �� D 2- • r SKETCH OF DESCRIPTION DESCRIPTION: That part of Section 26, Township 24 South, Rongs 30 East, Orange County, Florida, described as follows Commence at the Southeast comer of the Southeast 114 of said Section 26; fhence N897738 "W along the South line of the Southeast 114 of said Section 28 for a distance of 2683.48 feet to the Southwest comer of sold Southeast 1/4 of sold Section 26; thence S86"37'30 "W along the South fine of the Southwest 114 of sold Section 26 for a distance of 1468.22 feet; thence NOOW'00"W, 478.12 feet; thence N06 4358'E, 105.88 feet to the POINT OF BEGINNING; thence N014157"W, 57`7.73 feet to a point on a non - tangent curve concave Northerly having a radius of 3530.00 feet and a chord bearing of N715318 &- thence Easterfy ofong the am of said curve through o central angle of 07'43'15` for a distance of 475.68 fast to the point of tangency, thence N68193'410E 11.90 feet to Me point of curvature of a curve concave Southerly having a radius of 40,00 feet and a chord bearing of S7774'16 "E; thence Easterly along the arc of raid curve through a oentrut angle of 69194'08" for d distance of 48.22 feet to the point of tangency, thence S42152'13% 684.67 fast to the point of curvature of a curve concave Westerly having o radius of 40.00 feet and o chord bearing of SOUW'02'W, thence Southerly along the ore of sold curve through a central angle of 104*0031" for a distance of 7281 feet to the pant of compound curvature of a curve concave Northerly having a radius of 1420.00 feet and o chord bearing of S78'56'08"N; thence Westerly along the arc of said curve through a central angle of 35'3541` for a distance of 88217 feet to the point of tangency,• thence N8376'02'W, 94,37 feet to the POINT OF BEGINNING Containing 12.000 acres more or less and being subject to any rights- ofwoy, restrictions and easements of record SURVEYOR'S NOTkS: — Thte Y not a *WW.W — 9eainge haood on the South One of the Southeast 114 of Seetlon 26, TV*"* * m� N Range 30 liar, Orange co"nIM ►7arda, bwkV Mdp77ae'I. an assumed Lando ah&W hereon Were not obetrooted W 00118•-of —ran eowfflata, owns ehb or other bstrumonte of record by thle Ilan. No Nteo ophlon or obsbaaf of Mettre anbaUng tlt4 W d If b the wbJeot praprty a pone of oQ land ernes Noe bun tlwe an deeds of recent unrrosr sd d..d, r etheN hslnsnsnU "AIM ebuld the boundorbe or Y.& of the sub)W praperge I" raedt barbed hereon may be mbJut to *0 to hints and reaWkne not sha o hreon. �- TMi Sketch of oaxVm done not 00ot any wasrmnts of record that may be wWoh or odj*L4og tAe (ands dwooMod hereon. PREPARED FOR. LAKE NONA LAND COMPANY LAKE M WA • SOUTH - HUMMU SITE !PHASE 0 ' DONALD W. WINTOSH ASSOCIATES, INC. ENGINEERS PLANNERS SURVEYORS 2200 PARK AVENUE NORTH, WINTER PARK FLORIDA _32709 (407) 644 -4058 DATE. B12li4A* DATE 244/D6 ! 2261M.0003 I SNAG I OF E FET� 2 PrIntee: eta 91—�FaF-2D177 — 10 07AN S111239dssc CSC' 06 -698 r% \PrajtOG %M51 \S&9N@ad \&um1ram srte dwy s; r Items Types: Consent Agenda District: 1 Exhibits: • Yes Q No CITY OF ORLANDO COUNCIL AGENDA ITEM Grant Received by City ?: 0 Yes • No For Meeting of: 02/23/2009 From: Economic Development On File (City Clerk) • Yes O No City Clerk's Use Only: Signature Approval Victoria L Cecil Budget Approval Mark M Medlar Draft Only: 0 Yes • No Subject: Approving the Joinder and Consent to Plat for the Burnham Institute for Medical Research at Lake Nona Phase 1 Summary: 1piam, do not use all capa.l The Burnham Phase 1 plat, which includes the above - referenced subject property, was approved by City Council on May 21, 2007, Documentary #070521C14. The City of Orlando holds an interest in the subject property by virtue of that certain Primary Leasehold Mortgage and Security Agreement by and among Burnham Institute for Medical Research, as Mortgagor, and Orange County, City of Orlando and Lake Nona Land Company, LLC, as Mortgagees, which is dated May 7, 2007 and recorded May 16, 2007 in Official Records Book 9262, Page 2637, Public Records of Orange County, Florida. In order for the above - referenced plat to be recorded the mortgagees, including the City of Orlando, must execute the Joinder and Consent to plat pursuant to F.S. 177.081(2). Fiscal & Efficiency Data: (As appuc", cite funding source; original approval dab and contract amourt, ooasnenbry Number, cumulativwenarrge orders, recurring cost, (e.g. operating and maintenanca); auocauon of any generated revenues; any sppiiable ~ency data; W.) No Fiscal Impact Recommended Action: Approval of the attached Joinder and Consent to Plat for Burnham Institute for Medical Research at Lake Nona Phase 1 and authorizing execution of the Joinder and Consent by the Mayor /Pro Tem, Attachments Bumham InstituteJBC.pdf On File Agenda Item attachment(s) on file in the City Clerks Office. City �� ti�n� ``rVleetingP``°�3'a I q ItenI - r t Docume rnary: A BY ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS _FEB 0 3 2009 �J Prepared By and Return To: Deborah H. Johnson, L.L.C. Broad and Cassel Bank of America Center P.O. Box 4961 Orlando, Florida 32802 -496I (Burnham Institute for KNOW ALL MEN BY THESE PRESENTS; 0 q 20060161010 BI 9645 P: 4966 !3/39/2!!9 1l: 14;33 0 Page 1 of 4 Rae Foe: =35.8! Doo Typa: PLATR Ilarthe 0. Nayh0a, comptroller Qrantia ceu„ty R. MR - Rat To; eiR+.aleoo - OFFICE OF pERM1 1111 It w(KIiIIII'l Research at I�ke)Vona Phase 1) WHEREAS, the undersigned is the or Leasehold Mortgage and Security Agreement date INSTITUTE FOR MEDICAL RESEARCH, a corporation ( "Mortgagor'), to and in fav county and political subdivision of the rate of F corporation organized and existing un LAND COMPANY, LLC, a Florida i ted liabili in the original principal amount ty -One N recorded May 16, 2007 in Officr R Book Orange County, Florida (the "Mort F 'which A in Orange County, Florida, more par ri referred to as the "Real PmPezy0; :r holder f that certain Primary MGEPo among BURNIiAM al if p lic benefit 501(c)(3) ZA, ORIDA, a charter a municipal oori d LAKE NONA ctive "Mortgagee''), 11 qi Dol ( 81,000,000.00), , in a blic Records of $s th property located ed i th Plat referenced below (hereinafter F)IEC REAS a eal y pl of record into BURNHAM iNSMurE ' FOR AT NO P E 1, according to the Plat thereof as recordelat oo � Page of the blr Records of Orange County, Florida (hereinafter referee to the "Plat "), d REAS, Mo gor has rey Mortgagee to subordinate the lien of the Mortgage .tie at and to a catio reservations set forth therein (collectively the "Dedication-). NOW ORE, in consideration of the premises hereof and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagee hereby sta es a d declares as follows., L Mortg ee ereby joins in and consents to the Plat and the Dedication. M ga agrees to subordinate the lien of the Mortgage to the Plat and the 7176?/ppZS bWB Nr 17/17/2008 F.16 VM ( alo ItemDocumentarY IQ L, i 20090101010 Page 2 of 4 -96 IN WITWS WHEREOF, Mortgagee has caused this Joinder and Consent to Plat to be executed this -16L"'day of k67161 3j 2001, ORANGE COUNTY, FLORIDA By: Board f County Commissioners Q� By: Rjofkd o �aMayor �OtIM'1 Martha O. Haynie, County Comptroller As Clerk of the Board of County Commissioners 011LIWAL 1017]!/.7 7176amm AMA w 17/a/AM 4:15 PM iL ^, 4wvwuIQIulu raye0oT4 CITY OF 0 9 U RLANDO, a mWUnc�pal corporation organized and existing Wider the Laws of the State of Florida. Ma Ormro Tern ATTEST: �% r� for the use and 74 20090161010 Page 4 of 4 o«L1WFALESM0173M 3IM20M lW vw 1Y R &M Ono rM -v- GIFT AGREEMENT By and Between LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, as "LNLC" and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit corporation as "Burnham" March W*,2007 ORLIUMALE9T "939.9 31 MUM DHJ dN 2I2?*= 0:34 AM 3 ''�^�a—�'o31J��6 GIFT AGREEMENT (Surplus Land) � ,h THIS GIFT AGREEMENT (this "A.greemenf) is made and entered into as of the day of March, 2007 by and between LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, whose address is 9801 Lake Nona Road, Orlando, Florida 32827 ( "LNLC ") and BURNHAM INSTnUM FOR MEDICAL RESEARCH, a 501(c)(3) California nonprofit public benefit corporation, whose address is 10901 North Torrey Pines Road, La Jolla, California 92037 C Burnham" ), with a limited joinder by LAKE NONA PROPERTY HOLDINGS, LLC, a Florida limited liability company ( "LNPH" ), whose address is 9801 Lake Nona Road, Orlando, Florida 32827 (Burnham and LNLC are referred to herein sometimes as a "Party" or the "Parties "). RECITALS WHEREAS, Burnham, a 501(c)(3) corporation, is an internationally recognized research organization focused on basic biomedical research in the fields of cancer, neurosciences and aging, and infectious and inflammatory diseases; and WHEREAS, Burnham plans to establish and operate facilities at the Burnham Campus in the City of Orlando, Orange County, Florida; and WHEREAS, Burnham, LNLC, County and City have entered into the Grant Agreement pursuant to which LNLC has agreed to donate the Property to Burnham, and Burnham has agreed to accept the Property, subject to and in accordance with the terms of this Agreement, for the purpose of establishing medical, life sciences and clinical research facilities, and for the other exclusive purposes set forth in this Agreement; and WHEREAS, simultaneously herewith, LNLC is entering into an agreement with County for the donation and conveyance of the Permanent Facilities Site to County, with the intent that such property shall be ground leased to Burnham pursuant to the terms of the Ground Lease; and WHEREAS, LNLC and Burnham desire now to express their agreement for and with respect to the Property as more particularly set forth bereinbelow. DE1F'Yr MONS Terms when used in this Agreement will have the meanings set forth in Schedule I attached hereto and incorporated herein by this reference, except to the extent set forth hereinbelow in which case the following meanings shall control: (a) "Abutting Roads." The public roads running generally east -west through Lake Nona South and abutting the north and south boundaries of the Property. -1- ORL1VREALEM77039.0 3176210016 DHJ I" 2f2212007 6:34 AM 98 . _ ...... _..(b).. _. "Abutting Road System." The road system (excluding the Entry Road System) running generally east -west through Lake Nona Souti - and abutting the north and- south boundaries of the Property, together with related and adjacent utility and drainage facilities as described in Section 3- herein, all as shown generally on Exhibit "(b)" attached hereto and incorporated herein by this reference, within the right -of -way area to be ultimately approved by, and dedicated to, the City as more particularly set forth in Section 3 herein. {c) "Additional Expansion Phase," That phase of the Research Facilities to be developed, from time to time, consisting of approximately five hundred seventy -five thousand (575,000) gross square feet for use by Burnham and/or End Users. (d) "Approved Master Plan." The Master Plan for the Property prepared as provided herein and approved by LNLC. (e) "Burnham's Expansion Phase." That phase of the Research Facilities to be set aside and developed by Burnham, from time to time, as an expansion of its operations on the Permanent Facilities Site, consisting of approximately four hundred twenty -five thousand (425,000) gross square feet. (f) "Burnham's Indemnity Obligations." The indemnity obligations of Burnham as set forth in the paragraph entitled "Inspection of Property" hereinbelow. (g) " Development Cost" Any and all costs related to the performance of LNLC's Obligations to be performed hereunder, all of which shall be subject to the reimbursement by Burnham of its prorata share, either directly or by way of a capital assessment to be imposed upon the Property by the Boggy Creek CDD as provided herein, unless otherwise specifically provided herein. (h) "Due Diligence Materials." All due diligence materials prepared by or for Burpham, or otherwise obtained by Burnham, with respect to the Property, including, without limitation, any and all contracts, reports, surveys, maps, plans, site plans, correspondence, applications, submittals and any and all other documentation in whatever format (e.g., electronic, digital, or otherwise). (i) "Entitlements." The rights under the Development Order to develop on the Property, in accordance with all applicable regulations, as contemplated under the Development Order and this Agreement, together with the number of Trips associated therewith. 0) "First Phase," That phase of the Research Facilities, consisting of the Permanent Facilities, to be developed on the Permanent Facilities Site. (k) "Intended Use." The development on the Property of Burnham's Expansion Phase and the Additional Expansion Phase. -2- oRovREALOMT7e39.9 31 SM028 DHJ dN 2=007 8:34 AM w 9B ....... "Lake. Nona Boulevard Entry Road" or "Lake Nona Boulevard." That portion of Lake Nona' Boulevard lying within Lake Nona South, extending southerly from the Interchange to the Entry Road (as defined in the Gift Agreement (Permanent Facilities }). (m) "Local Agreements." The Grant Agreement and the documents referenced therein, exclusive of the Funding Parties Agreement. (n) "Material and/or Adverse Effect." An act or occ=encc which has a material, substantial and significant adverse impact or effect upon the use, density or intensity of development under the Lake Nona DRl excess of any limitation in the thereunder' of governmentally4mposed fees, costs or liabilities in (Q) `Master Plan." The master plan for the Property to be prepared by Burnham with the input and assistance of LNLC, for review and approval by LNLC and Burnham, prior to the commencement of any development on the Property. (p) "Master Utility Infrastructure," The master utility infi'astmcture shall include the facilities constructed to the standards of the applicable provider with sufficient line capacity to provide potable water, waste water, and reclaimed water (for irrigation purposes only) for development and construction of the Research Facilities on the Property at the capacity established by the utility provider or by the City for issuing building permits and certificates of occupancy within the Property in accordance with the Approved Master Plan, as applicable, within the Abutting Road System ri ght -of -way or utility easements adjacent thereto. The Master Utility Infrasttucture shall also include facilities for electric power, natural gas, telephone services, communication services and other utility services with the applicable electric utility provider, telephone provider, communications provider or other utility provider to ensure that electric, telephone, communications and other utility facilities are installed to the Property in sufficient capacities for development and construction eResearch a which h may also for the Intended Use in accordance with the Approved have sufficient capacity to benefit additional portions of Lake Nona South. (q) "Permitted Assignee." Any entity which, directly or indirectly, controls, is controlled by, or is under common control with, Burnham or LNLC, as applicable. (r) "Permitted Exceptions." Those title matters set forth in the paragraphs entitled "Title" and "Conveyance of Title" hereinbelow and accepted by Burnham as set forth therein and those matters set forth in Exhibit "(r)" attached hereto and incorporated herein by this reference. (s) "Plans and Specifications. " The site plans (including, without limitation, hndscape, sips, fence locations, materials and colors), landscape plans and specifications (including, without limitation, irrigation, sod and trees), building plans and specifications (including, without limitation, floor plans, exterior elevations, exterior building materisd, der samples and roof materials for any improvements to be constructed upon the Property), documents or information required by the Lake Nona Manual to be provided to the Lake Nona Design Review Board, all as more particularly set forth in the Master Declaration. -3- ORRn193.1 31N76 1804 µ 1 [*—no r ..(t) . _ ... "Project." Burrtham's . deyelopment of the Property consisting of the Research Facilities on the Property. _ (u) "Property." The Surplus Land, consisting of the property generally depicted and described in Exhibit «(n)" attached hereto and incorporated herein by this reference, consisting of the Burnham Campus less the Permanent Facilities Site, all subject to revision as set forth in the paragraph entitled "Survey" hereinbelow. (v) "Research Facilities." The medical, life sciences and clinical research facilities, together with the necessary on -site parking, utilities, landscaping and other infiastrueture, to be developed and constructed upon the Property and the Permanent Facilities Site consistent with the Permissible Use. (w) "Survey." A current survey of the Property prepared by a registered Florida professional land surveyor meeting the requirements of this Agreement, (x) "Title Binder" or `Title Commitment." A title insurance commitment issued by the Title Company committing the Title Company to issue the Title Policy to Burnham upon recording of the deed to Burnham, together with digital, electronic or hard copies of all exceptions referred to therein. The Title Binder will list as exceptions to title only the Permitted Exceptions and the Liens. (y) "Title Company." First American Title Insurance Company, a California corporation. Burnham acknowledges that it has been informed that the Closing Agent is an authorized agent for the Title Company. t (z) "Title Defect." Matters which either (i) adversely affect the marketability of title to the Property (to be determined by Burnham applying standards customary in the industry for determining marketability), or (ii) substantially, adversely affect the ability of Burnham to use the Property for the Permissible Use (to be determined by Burnham applying commercially reasonable standards), but specifically excluding the Permitted Exceptions and the Liens (defined below). For purposes of this Agreement, the term "Title Defect" will refer to one or more matters affecting title to the Property as the context requires. Any matter appearing in the Public Records solely because of actions or omissions of Burnham, or its agents or contractors, will not be deemed a Titre Defect for purposes of this Agreement. For purposes of this Agreement, a "Title Defect" will not include any mortgages encumbering the Property or other monetary liens or encumbrances created by or through LNLC that LNLC will remove at Closing (the "Liens'). It is specifically understood and agreed that LNLC will cause the removal, correction or deletion of (i) all standard exceptions set forth in the Title Commitment (subject to a survey reading), and (ii) any gap, overlap, boundary dispute, hiatus or encroachment identified on the Survey which affects the Property or any adjacent properties, and (iii) the Liens. At Closing, LNLC shall provide the Title Company with such affidavits or other documents as are necessary to enable the Title Company to delete the Liens and the matters set forth in items (i), (ii) and/or (iii) herein and the Title Company shall provide Burnham a marked -up Title Commitment. -4- ORLIMALM"77999.9 31762/0028 DMJ dW 21=12007 6:34 AM r (aa) "Title Policy." The ALTA Form `B" 1992 (10- 17 -92) owner's policy of title insurance to be issued by the Title Company upon recording of the deed to Burnham and paid for as a Project Cost. The Title Policy will be in the amount of $10,260,000.00 and will insure the title of the Property, subject only to the Permitted Exceptions, and other matters acceptable to Burnham. (bb) "Wetlands Permits." Those permits now or hereafter issued by the Army Corps of Engineers and the South Florida 'Water Management District necessary to allow LNLC, at LNLC's expense, to cause any wetlands to be mitigated and removed from the Property as provided herein so that no wetlands remain within the Property. AGREEMENT NOW THEREFORE, for and in consideration of the premises hereof, the mutual covenants herein contained and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, LNLC and Burnham hereby covenant, stipulate and agree that the foregoing recitals are true and correct and are incorporated herein by this reference and further covenant, stipulate and agree as follows: 1. Agreement to Donate and Accept. LNLC hereby agrees to irrevocably donate and convey the Property to Burnham, and Burnham hereby agrees to accept the Property from LNLC, upon the terms and subject to the conditions set forth in this Agreement and the Local Agreements. 2. Inspection of Property. Prior to Closing, LNLC agrees that Burnham and/or its representatives or agents, upon reasonable prior written notice to LNLC in each instance, shall have the right to enter onto the Property for purposes of performing surveys, soils borings, engineering, architectural, topographical, economic and any other work, studies or tests, at Burnham's sole cost and expense, so long as Burnham does not change the present character of the Property. Prior to Closing, LNLC, at its election, may accompany Burnham and/or its representatives or agents, in connection with their entry upon the Property. Prior to entry upon the Property, Burnham shall provide LNLC with a liability insurance policy in the amount of $1,000,000 or more and with a company satisfactory to LNLC which names LNLC as an additional insured and which cannot be cancelled without thirty (30) days' prior written notice to LNLC. The right of inspection will terminate immediately if the insurance policy or this Agreement is terminated. Burnham shall repair any damage to the Property caused in connection with Burnham's or its agents' entries and shall indemnify and hold harmless LNLC from and against, and shall reimburse LNLC for, 'any loss, cost, damage, claim or expense arising from or as a result of Burnham, its agents or invitees being on the Property, or the undertaking of any such work, tests or studies, pursuant to the rights granted under this paragraph ( "Burnham's Indemnity Obligations "), Burnham's Indemnity Obligations shall not extend to any loss, cost, damage, claim or expense resulting from (i) the intentional acts or gross negligence of LNLC or its agents or employees, or (ii) existing conditions located on the Property (e.g. hazardous wastes), but shall survive Closing under, and the termination of, this Agreement. Burnham -S- ORUI REALEST%BT709.9 3176210028 DHJ dhJ ?22!2007 034 AM covenants and agrees that if this transaction does not close for any reason (other than LNLC's default hereunder), Burnham shall provide to LNLC, without any cost to LNLC, copies of all Due Diligence Materials, and Burnham shall assign and release to LNLC, without recourse or warranty or cost to Burnham; any and all rights of Burnham, in and to all permits and approvals for the Property, the work product produced in connection therewith, and all such Due Diligence Materials: Burnham shall promptly pay or satisfy all invoices related to the services or materials provided in connection with its investigation of the Property. The immediately preceding four sentences of this provision will survive any termination of this Agreement. 3. Development Matters. a. LNN Q's Obligations. LNLC shall perform or cause to be performed the following obligations ("LNLC's Obligations "): (i) Abutting Road Systems and Other Road Improve r� tents. (1) AbuthsIg Road Systems. LNLC, subject to reimbursement by Burnham as a Development Cost, shall cause the design, permitting, construction, installation of the Abutting Road System in accordance with the Approved Master Plan. The Abutting Road System shall be constructed in accordance with the applicable roadway construction standards of the City, and in accordance with the City's standard procedures shall be dedicated to the City as soon as possible after completion. The parties acknowledge that LNLC may convey the Abutting Road System to the Boggy Creek CDD prior to it being dedicated to the City, but that the obligation in this section shall not be satisfied until the Abutting Road System is dedicated to and accepted by the City. LNLC shall provide all bonds/security for the Abutting Road System required by the City for public roadways as a Development Cost. Acknowledging that the Abutting Road System will not have been completed at the time of Closing and the enhanced value to the Property associated with the completion of same, and in order to facilitate the development of the• Research Facilities and recognize such value, LNLC shall reserve, subject to Burnham's review and approval which shall not be withheld if such easements are either consistent with the Approved Master Plan or otherwise do not materially and adversely affect the Property, the appropriate non - exclusive easements for access, utilities and drainage for the benefit of Lake Nona South, over, under and across the property comprising the Abutting Road System and the property adjacent thereto, and LNLC shall reserve, or Burnham shall grant to LNLC, as long. as the locations of same do not conflict with the Approved Master Plan, temporary construction easements sufficient to allow LNLC to perform its obligations set forth herein, all consistent with the Approved Master Plan and the SPMP and in a manner that will not maternally and adversely interfere with the Research Facilities. Burnham agrees to reasonably cooperate and join in the execution of all temporary easements, plats and instruments reasonably required as contemplated herein. 10 ORLiIREALEMV77030.9 3170210026 OW dN 2/22f2007 6:34 AM U:71 9 (2) other Road Improvements. LNLC, at its cost and without charge to Burnham through the Boggy Creek CDD (or other CDD), shall complete the following two items, which the Parties acknowledge are not located ; within or adjacent to the Burnham Campus. (a) the extension of Lake Nona Boulevard to its point of connection with the Entry Road System (as defined in the Gift Agreement (Permanent Facilities)), which shall be a public right -of -way; and (b) the Interchange (collectively, the "Road Improvements "). The parties � acknowledge that LNLC has not yet determined how it will satisfy the foregoing requirement, but that it is considering satisfying assessments, by prepayment or contribution of infrastructure, for the capital costs of the Road Improvements to the CDD in amounts sufficient to release the Property from any future ; assessments therefor and/or making all fixture assessments against the Property for the capital costs of Road improvements as and when such assessments come due without benefit of repayment from Burnham. LNLC shall keep Burnham i informed as to how it intends to satisfy this requirement and provide Burnham with documentation evidencing LNLC's final determination with respect thereto. In addition, LNLC shall promptly provide Burnham with copies of the CDD's preliminary assessment methodology, assessment calculations, and notice of assessment proceedings for the Road Improvements. Burnham shall promptly provide LNLC with copies of any correspondence it receives from the CDD with regard to capital assessments for the Road Improvements. LNLC shall indemnify, defend and hold Burnham harmless from and against any claims made by the Boggy Creek CDD (or other CDD) for any assessment and/or claim, including interest, fines and penalties, for or in relation to CDD capital assessments for the Road Improvements. Notwithstanding anything to the contrary in Section 15(c). herein, Burnham shall have the right to pursue damages against LNLC in an amount equal to the assessments LNLC should have paid in connection with the foregoing obligation and indemnity, together with interest at the prevailing statutory rate. The provisions of this subparagraph shall survive Closing and shall be incorporated into the Development Agreement. (ii) Master Utility Infrastructure. In connection with the construction of the Abutting Road System, LNLC, subject to reimbursement by Burnham as a Development Cost, shall cause the design, permiting, construction and installation of the Master Utility Infrastructure. At the time of Closing and thereafter, Burnham shall grant to LNLC and/or the appropriate utility provider (which shall include any Provider selected by LNLC in accordance with Section 3(k) herein), as long as the location of same do not conflict with the Approved Master Plan, easements, in areas consistent with the Approved Master Plan and in a manner that will not materially and adversely interfere with the Research Facilities, sufficient to allow LNLC and/or the appropriate utility provider to perform its obligations or provide the services contemplated herein for the completion of the Master Utilities Infrastructure. -7- 011QEALESnet793� D a,�etio02 W dpi tixa W? aa4 AM 9B (iii) Master Drainage System. LNLC, subject to reimbursement by Burnham as a Development Cost (but only to the extent actually required to develop the Property for the Intended Use and not the costs of any oversizing benefiting properties other than the Property), shall cause the design, permitting, construction, and installation of a fully functional master drainage system with appurtenant facilities for the Property ("Master Drainage System ") which shall be integrated into the master drainage system for Lake Nona South. The Master Drainage System may require the Property to accommodate storm water flowage (but not retention or detention- unless requested by Burnham) from Lake Nona South through the Property (and may require the other portions of Lake Nona South to accommodate storm water flowage from the Property through other portions of Lake Nona South), in accordance with applicable permits and approvals and in a manner that is consistent with the Approved Master Plan or otherwise does not materially and adversely affect the Research Facilities or the Property. Acknowledging that the Master Drainage System will not have been completed at the time of Closing and the enhanced value to the Property associated with the completion of same, and in order to facilitate the development of the Research Facilities and recognize such value, Burnham agrees to cooperate with LNLC, in connection with the design, permitting and construction of the Master Drainage System, which obligation shall continue following Closing. As necessary and in accordance with the foregoing, Burnham shall grant to LNLC, as long as the location of same does not conflict with the Approved Master Plan, easements, that are consistent with the Approved Master Plan or as otherwise reasonably determined by LNLC not to materially and adversely interfere with the Research Facilities, sufficient to allow LNLC to perform its obligations set forth herein in order to complete the Master Drainage System and enhance'the value of the Property. To the extent storm water drainage from the Property is to be held off-site, LNLC shall grant Burnham, subject to reimbursement as a Development Cost, such easements as are required to provide sufficient capacity to accommodate all flowage and retention/detention related to the Research Facilities on the Property in the minimum amount required by applicable development permits for the Intended Use. (iv) Mass Grading. LNLC, subject to reimbursement by Burnham as a Development Cost, shall be required to cause the mass grading of the Property in accordance with the mass grading standards as set forth in Exhibit "3.a.(iv)" attached hereto and incorporated herein by this reference, which shall include completion of LNLC's Obligations with respect to the Gopher Permit (as defined below). Acknowledging that the mass grading of the Properly may not have been completed at the time of Closing and the enhanced value to the Property associated with the completion of same, and in order to facilitate the development of the Research Facilities on the Property and recognize such value, Burnham agrees to cooperate with LNLC, in connection with the foregoing mass grading, which obligation shall continue following Closing. As necessary and in accordance with the foregoing, Burnham shall grant to LNLC, as long as the -8- 0RL1%REAI.JVn939.9 31762/0026 OFiJ 04 2/2212007 6:34 AM location of same do not conflict with the Approved Master Plan, temporary easements, that are consistent with the Approved. Master Plan or that otherwise do not materially and adversely affect the Research Facilities or the Property, sufficient to allow LNLC to perform its obligations set forth herein to complete the mass grading of the Property. (v) 100 Year Flood P1aip/Compe_nsatQry StoraB,E• If and to the extent any portion of the Property lies beneath the "loo Year Flood Plain" and any portion thereof is required to be filled in connection with the development of the Research Facilities on the Property, LNLC shall Provide within Lake Nona South or other property within the Lake Nona Development owned by LNLC or its affiliates, at LNLC's expense, any off -site compensating storage required by any applicable permitting agency-, provided however, that there shall be no charge to Burnham, (vi) G her Tortoise Aft—m'stratioz LNLC, at its expense, shall be required to obtain any necessary gopher tortoise take and/or relocation permit from the Florida Fish and Wildlife Conservation Commission (the "Gopher Permit") that may be required in connection with Burnham's development of the Research Facilities in accordance with the Approved Master Plan, and shall perform all mitigation and other legal requirements required thereunder, all in accordance with the Gopher Permit. () YE&Ands. LNLC shall obtain the Wetlands Permits. LNLC shall at all times ` during performance of its obligations hereunder comply with the terms of the existing permits from both agencies for the Property, except where such failure of compliance would not have a material and adverse effete and shall take no action which could be reasonably be foreseen to result in a change of wetland status for the Property. Burnham agrees to convey such easements as may be necessary in order to allow LNLC to remove the wetlands within the Property and to otherwise access and maintain the Primary Conservation Network (as defined in the Southeast Orlando Sector Plan), adjacent to the Property, consistent with the Approved Master Plan or as otherwise reasonably determined not to materially and adversely interfere with the Project. The provisions of this paragraph shall survive Closing hereunder. (viii) Plat Annrval. Commencing on the Effective Date, LNLC, subject to reimbursement as a Development Cost, shall diligently prepare, process and pursue approval of a plat for the Property. The Parties acknowledge that the Property will be conveyed to Burnham prior to recording of the plat, In connection with the recording of the plat, LNLC and Burnham, subject to reimbursement as a Development Cost, each agree to take such steps as are necessary to: (a) cause the recording of the plat, including by executing the final version thereof; and (b) correct minor deviations between the property conveyed to Burnham at the Closing hereunder and the lot created by the plan for the Property, including, but not limited to, conveying land subject to the terms herein as required to ensure that Burnham owns all of (but not more than) such platted -9- 0RLJWFALES'T1l7TVW.e 3176VMA DHJ dW 2rMW7 S:M AM lot. In order to facilitate the foregoing, LNLC shall promptly provide Burnham with drafts of the plat during the development process. After recording of the plat and completion of correctional items in accordance with the foregoing sentence, the legal description for the Property shall be, for all purposes hereunder and under the Local Agreements, by reference to the lot on the recorded plat. (ix) Off -Site Improvements. LNLC, at its cost, shall timely complete all other obligations, including off -site obligations, under the Development Order (other than any site specific obligations relating to the Research Facilities which are not otherwise included within LNLC's Obligations) as and when required so as not to delay completion of the Research Facilities. Subject to the foregoing provisions, Burnham acknowledges that following Closing, Burnham, at its expense, shall be responsible for all other permits and approvals required for, and for the undertaking and completion of, any development or construction related to the Project upon the Property. The parties acknowledge and agree that they will work together with respect to the timing and completion of the foregoing matters in order to meet Burnham's requirements for the development of the Property, which the parties anticipate will commence within the three years following the issuance of the CO for the Permanent Facilities. The parties anticipate that all or a portion of the Abutting Road System, the Master Utility Infrastructure and the Master Drainage System will be constructed by LNLC and be submitted to the Boggy Creek CDD for acquisition, or constructed by the Boggy Creek CDD directly. Alternatively, should Burnham require the foregoing to be completed prior to LNLC's or the Boggy Creek CDD's commencement of such work, Burnham may commence and complete such work at its cost and shall, have the right to seek to have the Boggy Creek CDD acquire the components from Burnham. Burnham shall not be required to fund its prorata share of the cost of the applicable LNLC's Obligations (excluding those obligation specifically identified as being performed at LNLC's expense) until the earlier of (i) Burnham's commencement of development on the Property, with such prorata share being based upon the benefited acreage within the Boggy Creek CDD consistent with a typical CDD assessment methodology, or (ii) the imposition of the CDD assessments. The provisions of this paragraph shall survive Closing hereunder. b. Assignment of Obliagons, Notwithstanding anything contained herein to the contrary; LNLC shall have the unilateral right, but not the obligation, to assign any or all of LNLC's Obligations to the Master Association and/or the Boggy Creek CDD and/or another community development district; provided, that no material additional cost is charged to or incurred by Burnham as a result of such assignment; provided further, LNLC shall not be relieved of the obligations associated therewith until Substantial Completion of the particular element of LNLC's Obligations and receipt of the applicable certificate of completion with respect to the particular phase of the respective obligation has been achieved and the applicable improvements have been dedicated to and accepted by the City, the Boggy Creek CDD or any other applicable governmental entity as a result of such assignment. -10- 0RUIREALEWM7793e.9 I 9 B: c, Survival. Notwithstanding any provision to the contrary herein, to the extent LNLC's Obligations shall not have been satisfied at Closing, said LNLC Obligations shall survive Closing hereunder until the acceptance by the applicable governmental authority of the i specific component, as applicable. d. Tra= ortation Impact Fee Credits. Burnham acknowledges and agrees that any and all Transportation Impact Fee Credits for the Road Improvements shall be allocable solely by LNLC for the benefit of the Lake Nona Development. LNLC may enter into an agreement with the City of Orlando that permits LNLC to allocate such credits in LNLC's sole discretion. in the event additional Transportation Impact Fee Credits are generated from improvements that i are paid as Development Cost, Burnham shall be entitled to the benefit of such credits to the extent of amounts paid by Burnham. Except as specifically provided in the preceding sentence, benefits from the neither Burnham, nor its successors or assigns, shall be entitled to With the Lake Nona Transportation Impact Fee Credits that may be generated in connection Development, e, Pro vision of Natural Gas Services. Acknowledging that the provision of natural gas services will be beneficial and necessary for the development of the Property and recognizing that it will bring value to the Property, Burnham acknowledges. and agrees that LNLC may enter in to an agreement with Tampa Electric Co. ("TECO") or another natural gas service provider (the "Gas Provider'j, upon commercially reasonable terms, pursuant to which all development within the Property and the Research Park may be restricted from utilizing natural gas as an energy source other than through the Gas Provider. The provisions of this paragraph shall survive Closing hereunder and be incorporated into the Development Agreement. f. Street N@W Burnham acknowledges and agrees that LNLC shall have the exclusive right to name all of the public streets adjoining or .providing act to or from the Property, and LNLC agrees that Burnham, as a fund raising tool and with the prior consent of LNLC (not to be unreasonably withheld), shall have the right to name those streets providing internal connectivity within the Property. This obligation shall be included in the Development Agreement. The provisions of this paragraph shall survive Closing hereunder. Impact FeMe . In the event Burnham is required to pay any Impact Fees for the g prior to payment therefor Burnham shall notify LNLC, and to the development of the Property, p P ym extent that LNLC has credits for such Impact Fees ("Impact Fee Credits"), at LNLC's election, LN Burnham Bumham shall be required to purchase such Impact Fee Credits from LNLC; provided, shall only be required to purchase such Impact Fees Credits at the then current rate for the applicable Impact Fees charged by the City and LNLC shall be required to provide Burnham with evidence of the establishment of the right to assign, and assignment o£, the corresp Impact Fee Credits to Burnham in connection with Burnham's payment therefor. h. E tinE tine• If at the time Burnham desires to commence development of the Property and such development is imminent and probable, Burnham needs Entitlements and LNLC owns excess, uncommitted Entitlements or is willing to pursue all amendment the Development Order to secure such additional Entitlements, Burnham shall pay p Entitlements from LNLC based upon the cost allocated thereto as reasonably determined by -11- ORLI IRSALEST16TT939.9 31T6Y1002! DHJ 4 VZV200T SM AM LNLC. The parties shall cooperate in connection with the pursuit of Entitlements for the Property; provided, LNLC shall not suffer any Material and /or Adverse Effects to the existing entitlements, mitigation, capacity and/or vesting of the Lake Nona Development of Regional Impact or PD due to the pursuit of Entitlements or development of the Property. i. Community Development District. (i) Generally The Boggy Creek CDD, which district is a Community Development District pursuant to the provisions of Chapter 190, Florida Statutes, was established for the purpose of planning, designing, financing, constructing, installing, operating, and/or maintaining certain infrastructure, including water management systems, transportation and roadway improvements, landscaping, drainage facilities, potable water and sanitary sewer facilities, wetland mitigation, reeroation and other infrastructure improvements within or without the boundaries of the Boggy Creek CDD, and such other purposes as may be permitted in accordance with Chapter 190, all as same may be amended from time to time, with the right to levy assessments in accordance with Sections 190.021 and 190.022, Florida Statutes (whether collected by County as part of its tax roll by ordinance or by the Boggy Creek CDD directly). Subject to the provisions of subsections (ii) and (iii) below, all or any portion of LNLC's Obligations hereunder (including the design, engineering and construction activities included therein), as well as other infrastructure facilities within the Lake Nona Development, and the ongoing operation and maintenance of all such facilities, whether constructed or to be constructed by or on behalf of LNLC, may be financed, constructed, acquired, owned, operated and maintained by the Boggy Creek CDD. The parties acknowledge that the Boggy Creek CDD will have the power to levy and collect assessments against any portion of the Property subject to and in accordance with Chapters 170 and 190, Florida Statutes in order to pay the cost thereof (plus debt service, reserves and other costs related to obtaining the financing); Burnham hereby agrees to accept the foregoing CDD assessments and execute any documents reasonably required by the CDD to acknowledge such acceptance. In addition, any lien rights shall be on a par with, ad valorem taxes and assessments levied by -the — County, the City or other governmental authority. Notwithstanding the foregoing, the parties acknowledge and agree that LNLC has assumed the obligations with respect to the Road Improvements. Subject to Section 3.b. herein, Burnham and LNLC acknowledge and agree that the Boggy Creek CDD governing board may enter into agreements with LNLC to acquire infrastructure facilities and lands from LNLC based upon actual costs previously or subsequently fimded by LNLC or appraised value in accordance with Chapter 190, Florida Statutes. (ii) CDD mate. While recognizing that the CDD has not issued capital assessment bonds or made any current findings with regard to the anticipated amounts of future capital assessments, LNLC, as of the date hereof, has estimated that the improvements reasonably necessary to complete the project infrastructure required within the Boggy Creek CDD district are contained in the assumed capital improvement program attached hereto as Exhibit 1'31(ii)" and incorporated herein by this reference (the "CIP "). LNLC, as of the date hereof, has estimated that the construction fiords -12- ORLMSALESW77939.9 an52=29 oru a,J 212V=7 534 AM Me reasonably necessary to complete CIP is approximately One Hundred Thirty 1 �1Xi�ald No /100 Dollars ($130,000,000.00) (the "Total CIF Estimate "), of which approximately Forty -Two Million and No /100 Dollars ($42,000,000.00) is allocable Ei the m Road illion improvements, leaving an adjusted CIP estimate of approximately Eighty - gb and No /100 Dollars ($88,000,000.00) (the "Adjusted CIF Estimate'• Based upon the Adjusted CIP Estimate, the-present value of the future CDD capital assessments allocable r. to the Property, based upon acreage, is approximately Five Million Three Hundred Six Thousand Two Hundred Forty-Three and No /100 Dollars ($5,306,243.00) (the "CDD 4 Estimate'. Notwithstanding the foregoing estimates, the parties aci mowledge and agree ; that any bond offering to finance these costs will be grossed up to allow for the cost of issuance and debt service. Burnham shall promptly Provide LNLC with copies of any correspondence it receives from the CDD with regard to capital assessments on the Property. The provisions of this subparagraph shall survive closing and shall be incorporated into the Development Agreement (iii) Loan. Burnham shall have the option of having LNLC finance all or a portion of its obligations for the CDD capital assessments; provided, Burnham must provide LNLC with written notice of its election to do so not less than thirty (30) days after Burnham receives the first tax bill containing the initial CDD capital assessment for the Property (other than ' capital assessments for the Road Improvements) ( "Burnham's CDD Election!). closing of the Loan (as defined below) shall occur no later than ninety (90) days after LNLC s reccipt Burnham's CDD Election. Following delivery of Burnham's CDD Election, both Burnham and LNLC shall negotiate in good faith the terms of the loan documents so that the execution ired CDD funding thereunder can occur in a timely fashion in order for LNLC to make Y 'de LNLC capital assessment for the property prior to delinquency. Burnham shall promptly Pro with copies of any correspondence it receives from the CDD with regard to portion ipts obligations for Provided Burnham has duly elected to have LNLC finance all or any, CDD capital assessments the CDD assessments as provided herein, LNLC agrees pay based upon the CIP as and when such assessments are due, which amounts shall be in the form of a loan to Burnham (the "Loan ") on the tams more particularly set forth security ctiOn. 7be Loan shall be evidenced by a.promissory note, a first priority gag e against the Surplus Land (subject only to the Permitted Exceptions and other matters approved by LNLC), to be recorded at the time of the closing thereunder, and other commercially reasonable documents (the "Loan Documents "), which Loan Documents shall contain the following provisions: (a) provide for interest on the Loan amount at the rate of two percent (2c /a) per annum compounded quarterly; (b) be repaid in full no later than the earlier of W years after the last day for payment (prior to delinquency) of the first CDD capital assessments against the property for any capital costs other than for the Road Improvements, or (ii) the date portion of the Surplus Land is sold or developed (as evidenced by the upon which all or any p d wire LNLC to issuance of a building permit); (c) allow for prepayment without penalty; ss require develop the join in and consent to such plats and easements as maybe reasonablprovide nece for the payment by Surplus Land consistent with the requirements of this Agreement; (e) Burnham of documentary stamp taxes and intangible taxes on the Loan amount as and when such payments are made, which Burnham acknowledges may require the recording of annual notices of future advance as required by Florida law; (f) shall not require a lender's policy of title -13- GMJVtMESne77930.O W0210026 OHJ C" 202VX01 6:34 AM 98 insurance; (g) require LNLC to indemnify Burnham from and against any claims, losses or damages for failure to pay CDD capital assessments covered by the Loan in accordance with Section 31(ii) above, including, but not limited to, casts (including attorney's fees) and additional interest expense as a result of a tax certificate sale, tax deed sale or a foreclosure action pertaining to the Property; (h) shall be non - recourse to Burnham; (i) shall contain a default interest rate equal to the statutory rate; 0) shall include all loan related costs as part of the principal amount due (excluding attorney fees incurred in connection with the negotiation of the Loan Documents); and (k) contain other commercially reasonable and standard terms as mutually agreed upon by Burnham and LNLC. In addition, LNLC shall promptly provide Burnham with copies of all correspondence containing proposed or actual CDD assessment methodology, assessment calculations, or assessment proceedings. The provisions of this subparagraph shall survive Closing and shall be incorporated into the Development Agreement. (iv) Burnham's Ri ,-ts. Burnham shall have the right, but not the obligation, to communicate with and appear in front of the applicable CDD for purposes of reviewing, commenting on and /or objecting to any CIP assessment methodology, assessment calculations and/or assessment proceedings, subject to and in accordance with all applicable law. (v) TemRpM Construction Easements. Burnham agrees to grant such temporary construction easements as may be reasonably necessary to allow LNLC, the CDD or LNLC or its affiliate on behalf of the CDD to complete the CIP. (vi) The parties w1mowledge that the Property shall be subject to the lien of the assessments on the Property for the CDD; provided, that such lien shall not affect the contractual obligations provided herein, to the extent applicable. j. Naming Riffs. As a material inducement to LNLC to enter into this Agreement, Burnham hereby agrees to name the Research Facilities on the Property 44 at Lake Nona" or such other name as Burnham may determine so long as the name Lake Nona remains a part of the name, subject to obtaining LNLC's prior written approval, not to be unreasonably withheld or delayed (the "Project Name'. Burnham may add reference to the name of any donor who provides funding for any part of the Research Facilities on the Property, subject to LNLC's prior written approval, not to be unreasonably withheld. Additionally, the following shall apply: (i) The Project Name will appear on all written material prepared by the Burnham relating to Burnham's operation of the Research Facilities at the Property, including, without limitation, scientific publications, signs, stationery, and business cards used by Burnham in the conduct of its business at the Property. The Parties shall use their best efforts to assure that all references to Burnham's operation of the Research Facilities at the Property shall use the foregoing full names, including, but not limited to, all references to the Project in media, advertisements, brochures and other information made available to the public. In addition, as appropriate, Burnham will include a statement in such materials that the Research Facilities on the Property are in the Research Park at Lake Nona or the Lake Nona Development. -14- ORLIUMALESM77839.9 3176MM8 OW dh�?1Z W7 8:34 AM (ii) All automated answering systems, voice mail systems and manually answered telephone switchboards operated by Burnham at the Research Facilities on the Property shall use the Project Name. (iii) Appropriate temporary and permanent signs will be .placed on the Property and buildings thereon, to reflect the Project Name. (iv) Public recognition for the donation of the, he Tavistock shall be ati attributed to the Tavistock Foundation, unless otherwise directed by (v) All public announcements relating to the donation of the Property will be made only as may be agreed upon jointly by the Parties and Burnham. (vi) Bi;nham specifically understands and agrees that although the "Lake Nona" name and the "Tavistock" name may be used by Burnham in the manner contemplated by this Agreement and in other reasonable ways consistent with the intentions of the Parties as evidenced hereby, nothing herein shall be construed as granting Burnham the right to sublicense the "Lake Nona" name or the "Tavistock" name, or the right to convey the "Lake Nona" name or the "Tavistock" name to others without prior written consent of Lake Nona or Tavistock, as applicable, at such Party's sole discretion. (vii) Except as provided herein and in connection with the identification of the Burnham Campus, LNLC specifically understands and agrees that nothing herein shall be construed as granting LNLC any right to use the "Burnham" or "Burnham Institute for Medical Research" or "BR&C' names, except with the prior written consent of Burnham, not to be unreasonably withheld. The foregoing obligation shall be included in the Development Agreement. The provisions of this paragraph shall survive Closing hereunder. k. Communications Ri.M. As a material inducement to LNLC to enter into this Agreement, Burnham hereby agrees to grant and convey to LNPH the "Communication Rights ", as follows: i. Dat urination and Selection of Prov&K. Subject to the terms of this Agreement, LNPH shall have the exclusive right to select and determine which Providers will be permitted to provide Communications Services on or to the Property (including an portions thereof or any buildings or portions of buildings thereon, or to any persons residing or otherwise utilizing the Property, or any portion thereof or any buildings or any portions of buildings thereon), and the terns and conditions relating thereto for a period of twenty (20) years after the date of issuance of a CO for each applicable building constructed thereon. Subject to the terms of this Agreement, LNPH will negotiate and finalize the Communications Agreements concerting, governing, or relating to the provision of Communications Service selected by LNPH, each of which shall be binding and enforceable against the Property and may require execution by Burnham. Burnham agrees that LNPH shall have the right to determine the terms and conditions of any and -ls- oRuMALEST077M.9 31762OU DW CMJ 712212007 8:34 AM all Communications Agreements for Communications Services selected by LNPH (subject to the terms and conditions contained herein), including, without limitation, the length of the term; the terms and conditions of any easements and recordation rights; the types of Communications Services (provided, other than voice, basic cable, internet and security monitoring which may be, `bundled," LNLC shall use its best efforts to ensure that Burnham shall not be required to pay for any such services that will not be used by Burnham, but with Burnham recognizing that services a often `bundled" by providers), the type of pricing and packaging for the Communications Services; obligations with respect to purchasing, installing and maintaining the wiring, equipment and facilities, including any obligations Burnham may have in this regard; the extent to which Provider will have the right to construct structures on the Property necessary or desirable to locate some of their equipment, wiring and other facilities (subject to Bumham's review and approval, not to be unreasonably withheld) which serve the Property exclusively. Notwithstanding the foregoing, such Communications Agreements shall; (i) contain rates and service standards and have "state-of-the-art" quality and capabilities that are competitive with end -user market rates, service standards, quality and capabilities for the Communications Services provided to other commercial properties within the Central Florida area; (ii) require the Provider to perform all construction and maintenance work in connection with its facilities on the Property in a good, orderly and workmanlike manner, in accordance with good engineering practice, including bonding and insurance and indemnification of Burnham for Provider's negligence as reasonably approved by Burnham; (iii) Provider shall be prohibited from installing or operating any of its facilities in any manner that will materially and adversely affect the buildings constructed upon the Property, the Property, the Permissible Use on the Property and/or the Approved Master Plan; (iv) include all services required by Burnham for the buildings constructed thereon or allow Burnham to obtain such services elsewhere; and (v) not require payment for services until final completion of the applicable building thereon. Burnham agrees to abide by, and comply with, all of the terms and conditions of each Communications Agreement throughout the term of such Communication Agreements. If the Communication Services selected by LNPH do not meet the foregoing criteria, Burnham may supplement such Communication Services with additional Communication Services with LNPH's prior written consent. In addition, notwithstanding anything to the contrary herein, with LNPH's prior written consent (not to be unreasonably withheld), Burnham may supplement the Communication Services selected by LNPH with additional Communication Services to the extent that Burnham's operations on the Property require Communication Services that are not available through the Communication Services selected by LNPH and with additional Communication Services for use with University of Florida, University of Central Florida, Burnham's La Jolla facilities or any other research institution with whom Burnham does business. Subject to the foregoing, Burnham may enter into Communications Agreements for such supplemental Communications Services. In addition, the foregoing shall not restrict (i) video conferencing over the internet, (ii) internet streaming, (iii) voice over IP, which will be permitted between Burnham employees within the Burnham Campus or between Burnham employees when used for site to site communication, or entering into Communication Agreements with respect thereto; (iv) Communication Agreements with -16- ORLIVMALEST1877M.9 31762=28 OHJ dN y2V=T 8:34 AM r 3 F the University of Central Florida or the University of Florida for Internet2, Florida LambdaRail or such other similar restricted high -speed educational research network v Burnham s ability to specify its customer premises equipment for sources, or () menu connection to and compatible with the Provider's equip ii. Prohibited AmMents o ts. Except as otherwise permitted in this Agreement, Burnham shall have no right to enter into, or permit, and will other than LNPH to enter into, any oral or specifically prohibit, any person or party i, written agreement, easement, license, lease or other arrangement of any type (collectively ` referred to as "Prot ibited Agreements or Arrangements ") for the purpose of, or that will have the effect o& permitting any person or party to provide any Communications w Service on or to the Property, or any portion thereof or any buildings or portions of sons or parties residing in or otherwise utilizing the buildings thereon, or to any per Property, or any portion thereof or any buildings or any portions of buildings thereon, and any and all Prohibited Agreements or Arrangements will be null and void, and of no force and effect. If Burnham is required by applicable law to pernnit a Person to provide Communications Services on or to the Property in contravention of the foregoing, the Beam shall only permit such Person to provide Communications W Services what a extent required by such applicable law. For example, if the app �� Person be permitted to provide cable services to the Property but has no similar requirement for telephone service, the Person shall not be permitted to provide telephone service to the Property. iii. MMULnginfi on of C • 4 ts. The provisions of this -' section shall survive Closing hereunder and shall be incorporated into the Development Agreement at the time of Closing. 4. Title. LNLC LC shall deliver to Burnham, within twenty (20) days after the Effective Date, the Title Binder. The Title Binder shall evidence that upon (i) the execution, recordation of the Special Warranty Deed to be delivered by LNLC to Burnham p nt to the greemlent and (ii) the release and/or discharge of the Liens on or before provisions of this A Closing, Burnham shall acquire marketable fee simple title to the Property subject only to the Permitted Exceptions, The Title Policy shall be delivered to Burnham, at LNLC's expense, within thirty (30) days after the Closing in accordance with the terms of this Agreement b, If Burnham shall determine that the Title Binder discloses Title Defects, Burnham may so notify LNLC of that fact not later than ten (10) days after delivery of the Title Binder. Any such written notice to LNLC shall identify and specify the Title Defects, together with the action Burnham believes would be required to eliminate same. Burhereby Beam acknowledges that it has reviewed and accepted the permitted Exceptions shall take title to the Property subject to the Permitted Exceptions. C. .n the event the Title Binder discloses any Title Defects and Burnham timely delivers written notice to LNLC of the existence of any Title Defects, LNLC shall have thirty. -17- 'ile J%7939.9 8176210028 pMJ dhJ 21R r"? 3- 341W (30) days following its receipt of such written notice of the existence of such Title Defects (the "Curative Period'I in which to use .commercially reasonable, good faith, diligent and timely efforts to cure or eliminate the Title Defects specified in such written notice or to notify Burnham that it cannot cure or eliminate the Title Defects. If LNLC fails or refuses to cure or eliminate the specified Title Defects within the Curative Period, Burnham may elect to (i) cure the Title Defect within sixty (60) days of expiration of the Curative Period at its sole cost; (ii) waive the objections and proceed to Closing with title in its "as is" condition in accordance with the terms hereof, (iii) pursue equitable remedies against LNLC to remove the Title Defect; or (iv) request that LNLC provide an Alternative Site (defined below), which election shall be made by providing written notice of such termination to LNLC within five (5) days after the expiration of the Curative Period (or five (5) days after Burnham's receipt of written notice from LNLC that LNLC cannot cure or eliminate such Title Defects, whichever is sooner). d, All matters set forth in the paragraph entitled "Conveyance of Title" below, and all matters revealed by the Title Binder and updates thereof which are not duly objected to by Burnham, or to which objection is duly made but is waived, shall constitute "Permitted Exceptions" for purposes of this Agreement. In the event that a Title Defect cannot be cured and is not waived by Burnham, then LNLC agrees to diligently and in good faith attempt to find an alternative site for the Burnham Campus within the Lake Nona Development (an "Alternative Site'). A proposed Alternative Site shall be subject to review and approval by Burnham. In the event the Parties agree on an Alternative Site, all periods of time hereunder shall be tolled for a reasonable time and the Parties shall proceed with performing this Agreement with references herein to the Property being deemed to refer to the Alternative Site. If the Parties are unable, after 60 days of making good faith efforts to agree to an Alternative Site for the Burnham Campus, then any Party shall have the right to terminate this Agreement. In the event of a termination pursuant to this section, all rights and obligations of the Parties hereunder shall thereupon cease and terminate, except for Burnham's Indemnity Obligations. 5. Survey. On or prior to ninety (90) days after the Effective Date, LNLC shall have obtained and delivered to Burnham, a. current survey of the Property prepared by a registered Florida professional land surveyor, as certified to LNLC, Burnham, the Title Company and Escrow Agent, that meets the Florida Minimum Technical Standards as established by the Board of Professional Surveyors and Mappers, as set forth in the Florida Administrative Code and depicting all matters shown on the Title Binder (the "Survey "). The Survey shall be in substantial accordance with Exhibit "5" attached hereto, provided however that the Parties acknowledge and agree to cooperate prior to Closing to refine and agree upon a final Survey, in an effort to create the most beneficial configuration possible to achieve the success of the overall Research Park. The Survey shall further certify the number of gross acres of land contained within the Property, the flood zone of the Property and the "100 Year Flood Plain," and shall show the impact of all easements and other instruments identified as exceptions to title in the Title Binder. In the event that the Survey reveals any encroachments, gaps, overlaps, or encumbrances which render title to the Property unmarketable and which are not Permitted Exceptions, then Burnham shall have the right to object to the some by providing written notice -18- 0RLJVW- J6L0TW7039.i 31 70200a DHJ ON 21=007 6:34 AM a4 go] Er.11 thereof to LNLC no later than ten 1 (10) days after its receipt of the Survey, in which event the same shall be treated as Title Defects hereunder. Once the final configuration of the Property 's determined based upon the Survey as approved by Burnham and LNLC, as shown documents associated herewith to the "Property" shall be deemed to mean the Property on the Survey. 6, Conveyance of Title. At the time of Closing hereunder, LNLC shall convey marketable fee simple interest and estate in and title to the Property exceptions or qualifications Warranty Deed, free and clear of all liens, encumbrances, cep . whatsoever, save and except only for the following permitted exceptions to title (the "Permitted Exceptions'': a. Ad valorem real property taxes for the year of Closing and subsequent years, not yet due and payable, as applicable (provided that any such tax liability to the Closing shall remain the responsibility of LNLC). . b, All applicable land use and zoning regulations, ordinances of general application and the provisions of the Development Order, as the same may be amended from time to time, c. Matters deemed Permitted Exceptions pursuant to Section 7 hereof. d. The lien of assessments levied by the CDD on the Property. e, The Development Agreement. f, The agreements, easements and other matters contemplated herein. g Those matters set forth on Exhibit "(r)" attached hereto and incorporated herein by this reference. 7. Closing Matters. a, Clo in . Provided all Conditions to Closing have been satisfied, Closing hereunder shall occur at 10:00 a.m. Eastern time no more than thirty (30) days after delivery of through the mails or at such other place as the Parties the Survey, at the office of Escxow Agent, may agree, unless an extension of such date is otherwise agreed to by the Parties in writing (the "Closing Date'. C'ond'tion to Closing. The satisfaction of the following conditions (the b. "Conditions ") must occur by the date specified and shall be a condition precedent to the transfer of the Property and the related matters to occur at Closing on the Closing Date, as it may be extended, unless waived by the applicable Party: (i) County, City, LNLC and Burnham, as applicable, � have LNLG to enter into Local Agreements (provided that the failure by any such agreement shall not constitute shall be in full force and effect'�tion as to such Party), and the Lo gr -19- OWMALEs 77939.9 31752"2e ore my Z(2V=1 5"34 '4M (ii) Burnham and the Office of Tourism, Trade and Economic Development shall have entered into the OTTBD Agreement; (iii) all representation and warranties set forth i t this A '� In all OTTEa Agreement and the Local Agreements respects as of the date of Closing and such agreements shall be in full force and effect (provided that the failure of any representation or warranty made by Burnham or LNLC to be true and correct in all material respects as of the date of Closing shall not constitute a failure to satisfy this Condition as to such Party); (iv) at the time of"Closing, all obligations of the Parties provided in this Agreement that are to be satisfied as of the Closing shall have been satisfied or shall have occurred or shall have been waived by the other in writing or as otherwise provided in this Agreement; (v) at the time of Closing, there shall be no Title Defects or Burnham shall have waived (or be deemed to have waived) any Title Defects to which Burnham has duly objected hereunder if the same have not been cured or eliminated of record; and (vi) at the time of Closing, there is no litigation or administrative proceeding pending or threatened against or relating to this Agreement, the other Local Agreements, the Property or LNLC which would or could materially and adversely affect the use of the Permanent Facilities for the Permissible Use. C, Pos nQ em_ent. If one or more of the Conditions shall not have occurred or been satisfied, or expressly waived by Burnham or LNLC, as applicable, or by the terms of this Agreement on or before the Closing Date, as it may have been extended under Section 7 hereof:, for any reason whatsoever, then either Party shall have the right to postpone the Closing Date, by providing written notice to the other Party, no less than ten (10) days prior to Closing, specifying the Condition(s) which has not occurred or been satisfied; provided, in no event shall Closing be postponed for more than one hundred and twenty (120) days. Any cure periods set forth in Section 4 and/or Sections 7.d. and 7.e. hereunder shall run within and not after the foregoing 120 -day period. in the event that Closing has not occurred by the end of the foregoing period, then any. Party shall have the right to terminate this Agreement by providing written notice to the other Parties, following which all rights and obligations of the Parties hereunder shall cease and terminate, except for the Burnham Indemnity Obligations. d. Failure of LNLC Satisfy Conditions: Cwe. If Burnham provides notice of LNLC,s failure to satisfy any Condition when required by Section 7.c. hereunder, then LNLC shall promptly, and in any event within thirty (30) days, use good faith, diligent and timely efforts to attempt to satisfy or cause the occurrence of the Conditions specified in the notice. If LNLC is able to so satisfy or cause the occurrence of such Condition within thirty (30) days thereafter (or such other applicable period agreed to by all Parties), then Closing shall occur on such thirtieth (30th) day (or other applicable date) or on the date otherwise agreed upon by the Parties. If LNLC does not or cannot satisfy or cause the occurrence of such Condition within -20- ORL1 M WALFA"77939.9 31T8210028 0KJ M 2/22/2007 8:31 AM • a such thirty (30) day (or other applicable) period, then Burnham may: (i) waive its objections and proceed to Closing; (ii) pursue appropriate equitable remedies; (iii) if such failure is the result of a Title Defect, pursue the remedies set forth in Section 4 herein; or (iv) request that LNLC provide an Alternative Site in accordance with Section 4 herein; provided, Burnham shall have the option of waiving the Condition at any time and proceeding to Closing. e. Fail a of u nham to SA& Co ition • Cure. If LNLC so provides notice of Burnham's failure to satisfy any such Condition, then Burnham shall promptly, and in any event within thirty (30) days, use good faith, diligent and timely efforts to attempt to satisfy or cause the occurrence of the Conditions specified in the notice. If Burnham is able to so satisfy or cause the occurrence of such Condition within thirty (30) days thereafter (or such other applicable period agreed to by the Parties), then Closing shall occur on such thirtieth (30th) day (or other applicable date) or on the date otherwise agreed upon by the Parties. If Burnham does not or cannot satisfy or cause the occurrence of such Condition within such thirty (30) day (or other applicable) period, then LNLC may elect to: (i) waive its objections and proceed to Closing, or (ii) pursue appropriate equitable remedies; provided that LNLC shall have the option of waiving the Conditions at any time and proceeding to Closing. E Pursuit of Satis tion of Q-0R ' =. Each Party covenants that it shall in good faith, diligently and timely pursue the satisfaction of the Conditions. Closing hereunder shall constitute Burnham's and LNLC's aclamowledgment that all Conditions have been satisfied or waived. g. Closing Costs and Other F_xpenses. At the time of Closing under this Agreement: (i) Burnham shall pay all of its due diligence expenses. u LNLC, .subject to reimbursement as a Project Cost, shall pay all documentary stamp taxes required to be paid on and with respect to the Special Warranty Deed, all recording fees and all premiums for the Title Policy to be issued with respect to the Property. Additionally, LNLC shall pay all Survey expenses. (iii) LNLC and Burnham each shall bear its own attorneys' fees, if any, with respect to Closing. h. CloAU Documents. At Closing: (i) LNLC shall execute and deliver to Escrow Agent the Special Warranty Deed together with an affidavit in form sufficient for deletion of the gap a exceptions for mechanic's liens and parties in possession under the Title Binder, a closing statement, the Development Agreement and such other documents as may be required hereunder or as Burnham or Escrow Agent shall reasonably request. (ii) Burnham shall execute and deliver a Closing Statement, the Development Agreement and such other documents as may be required hereunder or as LNLC or Escrow Agent may reasonably request- -21- oauweAi.es'nsrre39.o 8178II10028 DHJ 4 y/p67 834 AM 8. . Prorations. All ad valorem real property taxes shall be prorated between LNLC and Burnham with respect to the Property based on the prorated amount of taxes levied against the Property as of Closing, if applicable, with maximum allowance for discount. 9, Physical Condition of Property. BURNHAM ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT, EXCEPT AS SPECIFICALLY SET FORTH HEREIN TO THE CONTRARY WITH RESPECT TO LNLC'S SPECIFIC REPRESENTATIONS, THE PROPERTY IS BEING CONVEYED BY LNLC AND ACQUIRED BY BURNHAM IN ITS PRESENT PHYSICAL CONDITION, "AS -IS ", AND THAT LNLC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PHYSICAL CONDITION OF THE PROPERTY. IN PARTICULAR, EXCEPT. AS SPECIFICALLY SET FORTH HEREIN TO- THE CONTRARY WITH RESPECT TO LNLC' S SPECIFIC REPRESENTATIONS, LNLC MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOIL OR SUBSOIL CONDITIONS OF THE PROPERTY AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO BURNHAM FOR ANY LOSS, DAMAGE OR EXPENSES INCURRED BY BURNHAM WHICH ARE OCCASIONED BY THE CONDITION OR CHARACTERISTICS OF THE SOIL OR SUBSOIL OF THE PROPERTY OR ANY PORTION THEREOF. 10. Representations and Warranties of LNLC. LNLC hereby acknowledges, represents and warrants to Burnham that the following acknowledgments, representations warranties are true and of correct as of the Effective Date. which LNLC s aware shall refer to the knowledg orraawareness of the LNLC or mformatlon President and Vice Presidents of LNLC, a. That, to LNLC's knowledge, LNLC holds good and marketable fee simple title to the Property, and there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Property except as described in the Permitted Exceptions. b. That LNLC has no actual knowledge of any liens, encumbrances or security interests, exceptions or qualifications whatsoever affecting the Property that render title to the Property unmarketable. c. ' That LNLC can convey title to the Property to Burnham, subject only to the Permitted Exceptions, without the joinder or consent of others. d. That LNLC has no actual knowledge of any assessments for public improvements which have been made against or which affect the Property or of any public improvements which have been planned or ordered to be made and which have not heretofore been completed, assessed and paid, except for matters disclosed herein and assessments that may be levied by the Boggy Creek CDD or the Master Association. e. To LNLC's actual knowledge, there are no suits, actions or proceedings NL's (including any proposed zoning changes or condemnation proceedings) pending or to -22- r l ORl1WEAlE5i197793oA 1176Z/0026 DHJ OnJ T/2ZRW7 8:34 AM knowledge threatened against LNLC or affecting the Property, other than those disclosed or contemplated herein. f. That LNLC has not received any notices from any city, county, state or other Governmental Authority or other Person of violations with respect to the Properly. That LNLC has received no notice, and has no actual knowledge, of any existing g' which may be assessed by any or pending special assessments affecting the Property Y { Governmental Authority, water or sewer authority, drainage district or any other special taxing district or other entity, other than as disclosed herein or assessments that may be levied by the Boggy Creek CDD or assessments that may be established with respect to the Primary' Conservation Network (as defined within the Lake Non RI). h. There are no existing written or oral contracts or agreements for the sale, lease or transfer of any portion of the Property, other than the Permitted Exceptions and those dedications or conveyances associated with the development of the Property as contemplated herein. i. LNLC is not a party to and has no actual knowledge of any agreement or commitment that would impose any obligation on Burnham with respect to the Property, except as set forth in this Agreement, the Permitted Exceptions and the Local Agreements. j. Neither LNLC nor, to LNLC's actual knowledge, has aw o disposed of on, caused or permitted any Hazardous Substance to be placed, hold, - under or at the Property or any part thereof (except in accordance with applicable law). To LNLC's actual knowledge (i) there is no landfill or buried debris on, under or at the Property, and (ii) neither the Property nor any part thereof has ever been used (whether by LNLC or, to the best of LNLC's knowledge, an person) stances. Buurnham hereby acknowledges . that iNLC has or temporary) for any Hazard Su obtained and delivered to Burnham a Phase I enviromnental assessment report prepared by gctber with a reliance letter issued Professional Services Industries, Inc. for Lake Nona South, to in favor of Burnham; Burnham accepts the condition of the Property as set forth in such report. k. To LNLC's actual knowledge, the soil and subsoil condition of the Property is as set forth in the soils report prepared by Professional Service Industries, Inc. with a date of November 6, 2006, together with a reliance letter issued in favor of Burnham, Burnham accepts the soil and subsoil condition of the Property as set forth in such report. 1. The officers of LNLC executing this Agreement and the documents and instruments to be executed by LNLC in connection with this transaction have authorized to execute the documents and the instruments to be executed by LNLC in connection with this transaction and that no other offi cers or entities are required to bind LNLC hereunder. M. That all required action has been taken by LNLC authorizing and approving the execution of and entry into this Agreement as of the date hereof and will be taken authorizing and approving the execution and delivery Closing Date, the performance bey LNLC of executed and delivered by LNLC -23- ORl11REA6ESFMTTYJ9.2 11-11 210 02 8 DHJ did 2r=097"AM LNLC's duties and obligations under this Agreement and of all other acts necessary and appropriate for the transfer of the Property as contemplated by and provided for in this Agreement. n. There are no actions, suits or proceedings pending or to its actual knowledge threatened against, by or affecting LNLC which would have an adverse impact upon LNLC's ability to perform its obligations hereunder, or which would question the validity or enforceability of this Agreement or of any action to be taken by LNLC under this Agreement, in any court or before any Governmental Authority, domestic or foreign. o. The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by LNLC on the Closing date, and the performance by LNLC of LNLC's duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the transfer of the Property as contemplated by and provided for in this Agreement, are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which LNLC is a party or to which the property is subject, any judicial order or judgment of any nature nt which LNLC is bound LLC under cis Ag'�nent, are the valid and binding obligations covenants and agreements of of LNLC, enforceable in accordance with their terms. P. LNLC will not cause or knowingly permit any action to be taken which will cause any of the foregoing representations, warranties or covenants to be untrue or unperformed on the Closing Date; and LNLC will not cause or knowingly permit any action to be taken which will cause any of the conditions of LNLC's obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing Date. q. LNLC will deliver on the Closing Date all documents and instruments required by this Agreement and perform all acts reasonably necessary or appropriate for the consummation of the transfer of the Property as contemplated by and provided for in this Agreement. r. To LNLC's actual knowledge, water, sewer, electric, gas (if applicable), telephone, cable and other utilities are currently available to Lake Nona South and will be available to the Property in a timely fashion during the construction of the Research Facilities on the Property pursuant to applicable contracts and agreements. $. The President and Vice Presidents of LNLC are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. 11. Burnham's Representations and Warranties and Affirmative Obligations. a. representations and Warranties. Burnham hereby represents and warrants to LNLC that the following representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of Burnham or information of which Burnham is aware shall refer to the knowledge or awareness of the Chief Executive Officer, Chief Operating -24- pRL11REJ1LE8T1677D3Y.v 3176?10026 CIHJ tlhJ 2fY?J2007 8..34 AM 9B Officer and Vice President, Business Development of Burnham and, only if and when appointed, the Vice President, Operations of Florida of Burnham (or equivalent officer position). (i) Burnham is a California nonprofit public �b�ofltta� of the State of Californ�ia.,� validly existing and in good standing and and as of the date of Closing will be authorized to transact business in the State of Florida. (ii) Burnham has received a determination letter from the Internal Revenue Service classifying it as an organization described in Sections 501 c 3 and 170(b)(1)(A) of the Internal Revenue' Code of 1986, as amended, and such determination has not tens modified fB's tax - exempt shtatus is ccri'itical o the g als�set forth maintenance herein; and Burnham agrees it shall take all appropriate action to maintain its tax - exempt status. (iii) Burnham has the lawful right, power, authority and Capacity to acquire the Property in accordance with the terms, provisions . and conditions of this Agreement and otherwise perform the obligations contained herein. (iv) There are no actions, suits or proceedings pending or to its knowledge threatonod against, by or affecting Burnham which would have an adverse impact upon Burnham's ability to perform its obligations hereunder, or which question the validity or enforceability of this Agreement or of any action taken by Burnham under this Agreement, in any court or before any Governmental Authority, domestic or foreign. (v) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by Burnham on the Closing Date, and the performance by Burnham of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the matters provided for in this Agreement, are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which Burnham is a party, any judicial order or judgment of any nature by which Burnham is bound; and this Agreement, and the covenants and agreements of Burnham under this Agreement, are the valid and binding obligations of Burnham, enforceable in accordance with their terms. (vi) All required action has been taken by Burnham authorizing and approving the execution of and entry into this Agreement as of the date hereof and will be taken authorizing and approving the execution and delivery by Burnham of the documents and instruments to be executed and delivered by Burnham on the Closing thisaA, Agreement and of all other Burnham acts Sari' andtappropriate hfor the and gi' -25- ORL1 ST1877D39.9 s�702N020 DFiJ "'i MjM= SN AM mes consummation of the acquisition and transfer of the Property as contemplated by and provided for in this Agreement. (vii) Burnham will not cause or knowingly permit any action to be taken which will cause apy of the representations, warranties or covenants of Burnham set forth in this Agreement to be untrue or unperformed on the Closing Date; and Burnham will not cause or knowingly permit any action to be taken which will cause any of the conditions of Burnham's obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing Date. (viii) Burnham will deliver on the Closing Date all documents and instruments required by this Agreement and perform all acts reasonably necessary or appropriate for the consummation of the transfer of the Property as contemplated by and provided for in this Agreement. (ix) The Chief Executive Officer, Chief Operating Officer and 'Vice President, Business Development of Burnham and, only if and when appointed, the Vice President, Operations of Florida of Burnham (or equivalent officer position) are the parties who would reasonably have knowledge with respect to the foregoing representations and wazranties. b. Affirmative Obliglaons. Burnham hereby covenants and agrees to the following affirmative obligations (the "Affirmative Obligations "): (i) Burnham shall not construct or commit to construct any portion of the Project, at any location other than the Burnham Campus, without LNLC's prior written consent, which consent may be withheld in LNLC's sole and absolute discretion, it being the Parties' intent to create a viable, innovative and comprehensive Project and Research Park within the Lake Nona DRI. (ii) Burnham shall use best faith efforts to continuously operate Burnham's Expansion Phase and the Additional Expansion Phase, if applicable, upon the property. Specifically, from and after the opening of each facility within Burnham's Expansion Phase and the Additional Expansion Phase, if applicable, Burnham shall thereafter use best faith efforts to continuously operate such facility and shall take all steps necessary to insure the continuous operation as required herein for a period of no less than twenty (20) years. (iii) In the event Burnham desires to allow development of any portion of the Property for the benefit of an End User (as defined below) by other than such End User, Burnham shall allow LNLC to act in the capacity of developer for such project, upon normal and customary terms, rather than retain a third -party developer. Any funds derived from the sale or lease of the Property shall be used by Burnham to fund the operations of Burnham, whether in direct payment or through an endowment established for such purpose. -26- ORLI IREALES T167783D.B 31762== DHJ dh) 2/ZZ -M? 8:34 AM • 8 1 The foregoing Affirmative Obligations shall be included in the Development Agreement at the time of Closing. 12. Planned Development/Development of Regional Impact. The Project is a part of the Lake Nona DRI pursuant to the terms of the Development Order (the "Lake Mona Development "). LNLC retains and shall hereafter have the right, at any time and from time to time, to make such changes, modifications, revisions, additions and/or deletions to the Development Order and PD as LNLC, in its sole discretion, shall determine; subject, however, if required, to the approval of the City and the appropriate agencies of the State of Florida. Burnham, on behalf of itself and its Permitted Assignees, hereby waives any and all right to object, directly or indirectly, to any changes, modifications, revisions, additions and/or deletions to the Development Order or the PD by LNLC or LNPH except to the extent that any such change, modification, revision, addition and/or deletion may have a material adverse effect upon the use of the Property in accordance with the Approved Master Plan for the Permissible Use. LNLC hereby discloses to Burnham that LNLC will be pursuing one or more Entitlements Amendment and agrees to' provide written notice to Burnham of any such Entitlements Amendment. Burnham acknowledges and agrees that such Entitlements Amendment shall not be considered to have a material adverse effect upon the Property provided such Entitlements Amendment does not preclude development of the Research Facilities on the Property in accordance with the Approved Master Plan or have a material and adverse erect upon the ability of Burnham to operate the Research Facilities on the Property for the Permissible Use. Neither Burnham nor its assignees shall have, and Burnham, on behalf of itself and its assignees, hereby waives, any right to change, amend or modify the Lake Nona DRI, the PD or any other agreements, approvals or permits affecting the Lake Nona DRI (except for such matters that solely affect the Property) in any manner whatsoever, without the express prior written consent of LNLC and LNPH, which consents may be withheld or conditioned in such parties' sole, absolute and arbitrary discretion. LNLC and LNPH shall have the right to review any proposed amendment and shall not be required to find the existence of a material and adverse impact in order to disapprove of a proposed amendment. Any such proposed amendment shall be submitted to both LNLC and LNPH, together with copies of all pertinent documentation relevant to or to be submitted or filed with the proposed amendment. LNLC and LNPH shall have a period of up to forty-five (45) days within which to review, and approve or disapprove, as applicable, of such amendment. Approval of the amendment may be conditioned at LNLC's and/or LNPH's sole discretion. No such amendment may be submitted to any Governmental Authority without the express written consent of LNLC and LNPH. The failure of LNLC or LNPH to approve of or object to a proposed amendment within said forty-five (45) day period shall be deemed a disapproval of the amendment. Burnham, and its successors and assigns, shall cooperate with LNLC in completing LNLC's biannual reporting obligations under the Development Order. The provisions of this paragraph shall expressly survive Closing under this Agreement and shall be incorporated into the Development Agreement, 13. Development Agreement. -27- ORLIIREALESW7709.9 517VWA DHJ 0N 9=007 ON AM a. Execution of Development Aex emout. At Closing, Burnham and LNLC and /or ' LNPH shall execute and deliver to each other the Development Agreement, in the form consistent -with other development agreements executed by parties within the Lake Nona DRI, which will, among other things, (a) acknowledge the parties' obligations and rights with respect to the Entitlements as specifically provided in Section 3j, above, (b) limit the use of the Property to the Permissible Use, and (c) provide constructive notice of the easements and restrictions set forth herein as well as any of the other rights and obligations set forth herein regarding the development of the Property as either Burnham or LNLC may reasonably request, including, without limitation, those matters so specified herein, as well as a notice of the proximity of the Permanent Facilities Site to Orlando International Airport and notice of the architectural and sions set for design approval provith herein (the "Development Agreement"). The Development Agreement shall be recorded among the Public Records of Orange County, Florida immediately after the deed to be executed and delivered at dosing. LNLC shall provide Burnhame copy of the proposed form of the Development Agreement not less than thirty (30) days date hereof. b. Defaults Under Development Agreement. The Development Agreement shall provide that an event of default would occur under the Development Agreement in the event Burnham defaults in the performance or observance of any of the covenants, restrictions, requirements, stipulations and obligations to be performed and/or observed by Burnham thereunder (after all applicable cure periods), including but not limited to the following (but excluding the Other Development Agreement Defaults described in Section 13.d.(i)): (i) failing to receive LNLC's approval of improvements and infrastructure to be constructed by Burnham on the Property; or t•. (ii) contracting for sale of the Property or any Portion thereof without the prior written approval of LNLC, which consent may be withheld in LNLC's sole and absolute discretion; provided, Burnham may convey or lease to third party end' users operating such portion(s) of the Property for life sciences research purposes (e.g., research organizations/mstitutions or pharmaceutical companies) consistent with the Permissible Use (an "End User'l as long as (A) Burnham has obtained the prior written consent of LNLC, which consent shall not be unreasonably withheld, and (B) Burnham has not Ceased Operations, provided that for purposes of this Section 13.b.(ii)(A) the reference to fifty percent (50 %) in the definition of Ceased Operations shall instead be sixty -five percent (65 %), as of the last Report Period during that Measurement Period that immediately precedes the date of the applicable proposed sale (it being understood that this subsection (A) shall be inapplicable after the Measurement Period). In the event of a conveyance to a third party in accordance with the foregoing, Burnham shall ensure that any such third party purchaser is contractually bound by the provisions and restrictions hereunder, excluding subsection (A) which shall not apply to any third party purchaser, which obligations by their nature are intended to survive Closing and run with title to the Property; or -28. OR En�snarrw9.e 3t7aYlOO�a M, & 2/22f2op7 SM AM (iii) Burnham files, or has filed against it involuntarily, any proceedings in bankruptcy, becomes insolvent, or makes a general assignment for the benefit of creditors, or (iv) defaulting in the performance or observance of any of the covenants, restrictions, requirements, stipulations and obligations to be performed and/or observed subsequent to Closing by Burnham under the Development Agreement. (collectively, a "Primary Development Agreement Defauit" ). C. Remedies for primary Development Agreement Default. In the event of a Primary Development Agreement shall have the option to proceed according to oneeor momree Agreement shall provide that of the following causes of action: (i) Subject to the limitations provided hereinbelow, initiate an action at law or in equity to enforce LNLC's rights under the Development Agreement, including but not limited to specific performance or injunctive relieg Cure the default in the manner set forth in subsection d. hereinbelow; and/or ui Record a declaration among the public records that a Primary Development Agreement Default has occurred under the Development Agreement in order to preserve and/or enforce any of LNLC's rights thereunder without such declaration being deemed a slander of title or other cause of action in favor of Burnham. d. Other Development Agreement Defaults and Remedies. (iv) The Development Agreement shall provide that (x) the events in clauses (A), (B) and (D) shall also constitute an event of default by Burnham under the Development Agreement, provided that they shall apply only to Burnham and the Surplus Land owned by Burnham and shall not apply to any third party purchaser of all or any portion of the Surplus Land, and (y) the events in clauses (C) and (E) shall also constitute an event of default by Burnham with respect to the Surplus Land owned by Burnham to the extent of such a violation or action by Burnham or an event of default by a third party purchaser of all or any portion of the Surplus Land with respect to the Surplus Land owned by such third purchaser to the extent of such a violation or action by such third party purchaser, as applicable; however such an event of default by Burnham shall not constitute a default by any such third party purchaser and an event of default by any such third party purchaser shall not constitute an event of default by Burnham (an "Other Development Agreement Default "); (A) at any time prior to the end of the Term of the Ground Lease, Burnham has Ceased Operations at the Burnham Campus in Orlando, Florida, which. &kM ORLIMALEWM77M.9 817621002E DW d, j M=007 994 AM 9B {i situation has not been cured within forty -five (45) days of the Funding parties' or LNLC's written notice to Burnham; or (B) at any time prior to the date that is twenty (20) years after the Effective Date of the Grant Agreement, Burnham violates, or fails to abide by, the exclusivity provisions of Part VII of the Grant Agreement, which violation or failure has not been cured within thirty (30) days of the Funding parties' or LNLC's written notice to Burnham; or (C) Burnham has violated the Permissible Use restriction with respect days of Property, which situation has not been cured within thirty ( O ) ys LNLC's written notice to Burnham, or (D) upon early termination of the Grant Agreement and/or the Ground Lease prior to the expiration of the term of the applicable agreement; or (E) Burnham has taken any action that has or is reasonably likely to have a Material and/or Adverse Effect, which situation has not been cured within thirty (30) days of LNLC's written notice to Burnham. (v) In the event of an Other Development Agreement Default (after all applicable cure periods), LNLC shall have the option, in LNLC's sole discretion, to record an instrument among the public records that an Other Development Agreement Default has occurred wader the Agreement resulting in an immediate transfer of Burnham's interest in the Property then owned by Burnham to Tavistock Foundation, or another organization described in Sections 501(c)(3) and 170(b)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Alternate Foundation '); it being the parties' intent that such a default would create a "springing interest" in favor of the Alternate Foundation, LNLC's Rights to Cure. In recognition of the paramount need of LNLC to control the development of Lake Nona South over a period of many years and the substantial damage that may be incurred by LNLC if the plans for Lake Nona South are not followed by Burnham, LNLC may, at its option, in addition to all other rights and remedies herein provided, Cure any Primary Development Agreement Default and charge Burnham for all commercially reasonable expenses incurred by LNLC in so doing. Burnham shall pay LNLC for all such expenses upon demand by LNLC. LNLC shall have a lien against the Property for recovery of such expenses, which lien may be foreclosed in like manner to the foreclosure of mortgages under Florida law; provided, however, such lien shall not attach until the recording of a Notice of Lien in the Public Records of Orange County, Florida. Additionally, no action that would constitute a default under the Development Agreement shall be deemed a default until written notice thereof has been given to the party in default and the party in default has failed to cure the default within ten (10) days of such notice; provided, in the event such party has commenced cure within said period and is diligently pursuing same to completion, such party shall have thirty (30) days to effectuate the cure, or such, other applicable cure period specified in this Agreement. -30- 0RL1W -M ESM77a39R 517071002E OHJ 6N 21 2 718 0 0 7 E:34 AM grill 14. Architectural Control. Within 180 days after the Effective Date hereof, LNLC i shall provide Burnham with the Approved Architectural Criteria, and no improvements roved kind may be constructed on any portion of the Property unless such improvements are app in writing by LNLC and are consistent and in accordance with the Approved Architectural Criteria, unless otherwise agreed in writing by LNLC. LNLC shall not change the App any way that would materially and Architectural Criteria -after providing it to Burnham in adversely affect any prior approved building or development plans. Thereafter, no party shall apply for or obtain any of the development permits, or a building permit for, or commence the construction of, any improvements on airy portion of the Property, unless and until the pleas and specifications for any such improvements or modifications are first submitted to and reviewed I and approved, in writing, by LNLC and are consistent with the Approved Architectural Criteria, such review and approval not to be unreasonably withheld or delayed. Any modification to the Approved Architectural Criteria shall only be made upon review and approval by LNLC, not to be unreasonably withheld or delayed, and so long as such modification is consistent with the quality standard established by LNLC for the Lake Nona DRI. Burnham acknowledge that LNLC's review and approval rights shall include, without limitation, exterior wall design (including materials, height, color, signage affixed, detailing), signage and poles (including project, street, directional), lighting and poles (including street, signage, landscaping, building), screen enclosures, construction site appearance and maintenance, exterior equipment, play equipment, loading docks, fencing and landscaping (including type, size, spacing, design, irrigation, sod and trees). The provisions of this paragraph shall expressly survive Closing and shall be included in the Development Agreement. The Approved Architectural Criteria shall run with the land and shall apply to subsequent. third -party lessees or purchasers of any portion of the Property. 15. Default Provisions; Remedies. a. Burnham's De salt in its Oblieatiou to Close. If, in violation of the terms and conditions herein, Burnham fails to close on the Closing Date, as it may have been extended in accordance with Section 7 herein, other than for a failure of a Condition, LNLC may pursue as its sole remedy appropriate equitable remedies against Burnham. If Burnham fails to satisfy any of the Conditions to be satisfied by Burnham, LNLC shall have the rights described in Sections 7.c. and 7.e. b. LNLC's Default in its Obligation to Close. It in violation of the terns and conditions herein, LNLC fails to close on the Closing Date, as it may have been extended accordance with Section 7 herein, other than for a failure of a Condition, Burnham may pursue as its sole remedy appropriate equitable remedies against LNLC. If LNLC fails to satisfy any of the Conditions to be satisfied by LNLC, Burnham shall have the rights described in Sections 7.0. and 7.d., or if such failure is the result of a Title Defect, the remedies described in Section 4. C. Material D alt. The occurrence of any one or more of the following events shall constitute a "Material Default." (i) py Burnham. In the event of a breach by Burnham of any material term of this Agreement to be observed or performed by Burnham prior to or after Closing (but -31- O FtL1 vtMEST\6TTO39.9 81TUM25 DHJ dN 21aMOT 8.39 AM only if such breach is not due to the breach of any obligation of LNLC under this Agreement or any other agreement contemplated hereby) (a "Burnham Material Breach"), LNLC shall provide written notice to Burnham of such Burnham Material Breach. Burnham shall cure such Burnham Material Breach, or if such Burnham Material Breach is not capable of cure, Burnham shall promptly report to LNLC regarding the circumstances that led to the BurnhamM Material Breach, the impact of the Burnham Material Breach on this Agreement and how intends to mitigate any anticipated or actual adverse impact. Such reports to LNLC shall occur as promptly as possible after notification to Burnham that a Burnham Material Breach has occurred, and shall continue until the Burnham Material Breach has been. cured or until LNLC is reasonably satisfied that any Burnham Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of Burnham to perform as contemplated by this Agreement. If Burnham and LNLC are unable to resolve the Burnham Material Breach within one hundred twenty (120) days, either by its cure or by LNLC's satisfaction that Burnham can perform its obligations as contemplated by this Agreement, then LNLC may pursue as its sole remedy appropriate equitable remedies for such Bumham Material Breach. (ii) By LNLC. In the event of a breach by LNLC of any material term of this Agreement to be observed or performed by LNLC except for matters set forth in Section 15.b. above (but only if such breach is not due to the breach of any obligation of Burnham under this Agreement or any other agreement contemplated hereby) (a "LNLC Material Breach', Burnham shall provide written notice to LNLC of such LNLC Material Breach. LNLC shall cure such LNLC Material Breach, or if such LNLC Material Breach is not capable of cure, LNLC shall promptly report to Burnham regarding the circumstances that led to the LNLC Material Breach, the impact of the LNLC Material Breach on this Agreement and how LNLC intends to mitigate any anticipated or actual adverse impact. Such reports to Burnham shall - occur as promptly as possible after notification to Burnham that a LNLC Material Breach has occurred, and shall continue until the LNLC Material Breach has been cured or until Burnham is reasonably satisfied that any LNLC Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of LNLC to perform as contemplated by this Agreement. If Burnham and LNLC are unable to resolve the LNLC Material Breach within one hundred twenty (120) days, either by its cure or by Burnham's satisfaction that LNLC can perform its obligations as contemplated by this Agreement, then Burnham may pursue as its sole remedy appropriate equitable remedies for such LNLC Material. Breach. d. Effect of Termination. Upon termination of this Agreement, all rights and obligations of the Parties to this Agreement shall terminate exccpt as specifically set forth in this Agreement, including Burnham's Indemnity Obligations. -32- oMMEALOM77939.9 31782/002! MU C" 2f2Y=7 8;4 AM 90 f e. ExclMi)dty 9f Remedies. The remedies specifically enumerated in this Agreement are intended to be exclusive of any other remedy. Each Party hereto waives all rights to seek damages against another Party hereunder except those arising as a result of specific indemnity obligations hereunder. 16. Assipabllity. Except for an assignment by Burnham to an entity to which it is entitled to assign its rights and obligations under the Grant Agreement, this Agreement may not be assigned by Burnham in whole or in part without the express prior written consent of LNLC, which consent may be withheld in LNLC's sole, absolute and arbitrary discretion. Any assignment of Burnham's rights hereunder shall be subject in all respects to Burnham's obligations hereunder and the terms, conditions and limitations set forth herein and, unless a permitted assignee, shall not serve to release Burnham from its obligations hereunder. 17. Declaration of Covenants, Conditions and Restrictions. Burnham acknowledges that LNLC shall have the right to approve in writing the terms and conditions of i any declaration of covenants, conditions and restrictions to which Burnham subjects the i Property, whether through a property owner's association that may be formed in connection with the development of the Research Facilities on the Property, which if formed, shall be a member of the Master Association, or otherwise, as well as the articles of incorporation, bylaws and other documents governing any such property owner's association. Burnham hereby acknowledges { and agrees that. all covenants, conditions and restrictions and any such property owner's j association documents shall be submitted to LNLC and the Master Association .for review and approval at least thirty (30) days prior to the anticipated recordation date. The provisions of this Paragraph shall survive the Closing hereunder. 18. Enforcement Costs. in the event that any Party finds it necessary to employ an attorney to enforce any provision of this Agreement, the predominantly prevailing Party will be entitled to recover from the other Party its reasonable attorneys' fees and costs incurred in connection therewith (including costs of collection), at both trial and appellate levels; including bankruptcy proceedings, in addition to any other remedies to which such Party may be entitled. The requirement to pay the predominantly prevailing Party's reasonable attorneys' fees and costs will survive any termination of this Agreement. 19. Time of Essence. Time is of the essence of this Agreement and in the performance of all conditions and covenants to be performed or satisfied by any Party hereto. Whenever a date specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the next succeeding Business Day. 20. Waiver. No waiver of any provision of this Agreement shall be effective against any Party hereto unless it is in writing and signed by the Party0es) waiving such provision. A written waiver shall only be effective as to the specific instance for which it is obtained and shall not be deemed a continuing or future waiver. 21. Counterparts. This Agreement may be executed in any two (2) or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. -33- ORLME&EM7MO.9 31782IMS AHJ dry 242=7 8:94 AM 98 22. Captions. The captions, sections and part designations herein set forth are for convenience only and shall have no substantive meaning. 23. Notices. All notices and communications under this Agreement shall be in writing and shall be given by: (i) hand delivery; (ii) certified mail, return receipt requested (postage prepaid); (iii) reliable overnight commercial courier (charges prepaid); or (iv) facsimile (with confirmation of transmission) to each of the Parties as follows: To LNLC: Lake Nona Land Company, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Telephone: (407) 816 -6598 Facsimile: (407)438 -0207 With a copy to: Lake Nona Property Holdings, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Telephone: (407) 816 -6598 Facsimile: (407) 438 -0207 and With a copy to: Tavistock Corporation t. 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Thar, Chief Executive Officer Telephone: (407) 909 -9911 Facsimile: (407) 876 -0085 and With a copy to: Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Telephone: (407) 839 -4282 Facsimile: (407) 650 -0920 To Burnham: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Karin Eastham, -34- ORWREALE6T16?MV -0 317621=6 0XJ 6N 2/22/2007 6:34 AM Executive Vice President/COO Telephone: (858) 646 -3100 Facsimile: (8 8), 646 -3184 With a copy to: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Vice President, Business Development Telephone: (858) 646 -3100 Facsimile: (858) 646 -3105 With a copy to Shutts & Bowen LLP 300 North Orange Avenue, Suite 1000 Orlando, Florida 32802 Attention: Michael GrindstafP Telephone: (407) 423 -3200 Facsimile: (407) 425 -8316 With a copy to Cooley Godward Kronish LLP 4401 Fastgate Mall San Diego, CA 92121 Attention: L. Kay Chandler Telephone: (858) 550 -6000 Facsimile: (858) 550 -6420 To Escrow Agent: 90 North Orange Avenue, Suite 1100 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Telephone: (407) 839 -4282 Facsimile: (407) 650 -0920 Notice shall be deemed to have been given and received: (i) if by hand delivery, upon delivery; after the date first deposited in the United States mail; (iii) if by (ii) if by mail, three (3 ) days overnight courier; the date shown on the courier's receipt as the date of actual delivery; on ma y change (iv) if by facsimile, on the date shown on the confirmation of transmission. A Party its address by giving written notice to the Party as specified herein. e laws Of the 24. Governing Law, Venue. This Agreement shall be governed by th zed hereunder State of Florida. The Parties hereby agree that venue for any legal shall be in Orange County, Florida, and that jurisdiction shall be vested the Civil Division of 0e Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida, and if appropri in the Business Court Division thereof- -35- ORL11REhLCST1877QUA 3t 7p41pp29 DFtI ay Zra=7 Ot34 AM 7014� • 1 25. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities; may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 26. integrated Contract, Waiver and Modification. This Agreement (together with the documents specifically referred to herein) represents the complete and entire understanding and agreement between and among the Parties hereto with regard to all matters involved in this Agreement and supersedes any and all prior or contemporaneous agreements, whether written or oral. This Agreement may not be modified or amended, nor may any provision contained herein be waived, except in writing signed by all Parties, or if such modification, amendment or waiver is for the benefit of one or more of the Parties hereto and to the detriment of the others, then the same must be in writing signed by all Parties to whose detriment the modification, amendment or waiver inures. 27. Brokers. LNLC and Burnham hereby acknowledge, represent and warrant to each other that no broker or finder has been employed by either LNLC or Burnham in connection with the We and purchase transaction contemplated in this Agreement, LNLC and Burnham each warrant to the other that no commissions are payable by LNLC or Burnham respectively to any broker or finder in connection with this Agreement or the transaction contemplated herein, and LNLC and Burnham each agrees to indemnify, defend, save and hold the other harmless from and against the payment of any commissions or fees or claims for commissions or fees by virtue of any acts or actions undertaken by them, respectively; it being expressly agreed that the foregoing agreement of indemnification shall expressly survive any termination, closing or closings under this Agreement. 28. Memorandum of Agreement. Neither this Agreement nor a memorandum thereof may be recorded in the public records of any county within the State of Florida; the recording of this Agreement or a memorandum shall be a default hereunder. 29. Independent Contractor Relationship. Each Party to this Agreement is, and shall be, in the performance of all work services and activities under this Agreement, an independent contractor, and not an employee, agent, or servant of any of the other Parties to this Agreement, individually or collectively. All persons engaged in any of the work or services performed by a Party pursuant to this Agreement shall at all times, and in all places, be subject to such Party's sole direction, supervision, and control. Each Party shall exercise control over the means and manner in which it and its contractors perform the work. No Party to this Agreement has the power or authority to bind any other Party to this Agreement in any promise, agreement or representation. 30. Surviving Clauses. The provisions of this Agreement set forth in Sections 2 (as provided therein), 3, (as provided therein) 8, 9, 10 and 11. a. (for a period of one year following Closing), I Lb., 12 -15, 16 (as provided in section 3), and 17 -38 will survive Closing pursuant to this Agreement and Sections 2 (as provided therein), 15, 18 -24, 26 -33 and 36 -38 shall survive any termination of this Agreement. Except as set forth in the preceding sentences or as otherwise -36- ORLIMALEST611998.9 91 7 6 218 02 8 DW dW 2/2712007 8:34 AM 98 expressly set forth herein, no other provision of this Agreement will survive closing of this transaction or any termination hereof by either party as a matter of right. i 31. No Partnership or Joint Venture. Nothing set forth in this Agreement shall be deemed or construed as creating a legal partnership nor a legal joint venture between the parties or an other arty, nor shall it cause any party to be responsible in any way for the debts hereto n y P and obligations of any other party. 32. Limited Joinder of LNPH. LNPH hereby joins in the execution of this t se of evidencing its agreement to be bound by only those terms Agreement for the limited purpo and provisions hereof which specifically pertain to LNPH.. 33. Force Majeure. Either party hereto shall be excused for the period of delay in ; the performance of any obligations hereunder when such delay is occasioned eded fora a oli a paned. Event and the time for performance shall be automatically 1 to the payment of any Notwithstanding the foregoing, the terms of this provision shall not apply amount when due or to Closing. 34. Continuing Cooperation. LNLC and Burnham agree that they will, at any time and from time to time after the Closing Date, upon request of the other party, do, execute, a.cimowledge and deliver, or will cause to be done, executed, acknowledges as delivered, obly such f *cr acts, deeds, assignments, transfers, conveyances and assurances Y be required for the assigning, transferring, granting, assuring and confirming of the transaction contemplated herein, or far aiding and assisting in collecting and reducing to possession, any or being transferred herein pursuant to this Agreement, Provided that all of the assets or property beyond that provided in the same do not impose any liability or additional costs on either party Y this Agreement, went indicates that 35. Approvals /Continuing Cooperation. In the event this Agree a Party's consent shall not be unreasonably � �conditionederitln the event this Agreement shall not be unreasonably withheld, delayed or ,withheld at such Party's sole discretion, such indicates that a Party's consent maybe gran consent may be granted or withheld at such Party's sole and absolute discretion for any reason or no reason at all. any tern or provision of this Agreement, or the application 36. Severabiility. extent, be held invalid or unenforceable, the thereof to any person or circumstances shall, to any vision, to persons or remainder of this Agreement, or the application of such terms or pro be circumstances other than those as to which it is held Agreement shall b unenforceable, eemed valid tend affected, and every other term and provis ion of this enforceable to the extent permitted by law. 37. No Forfeiture. The rights of each of the Parties under this Agreement shall be cumulative and failure on the part of any such Party to exercise promptly any rights given hereunder shall not operate to forfeit or waive any of the said rights. -37- ORL1VtEU E911677939.9 3178Zlo028 D*U dh s!2?1Z00, &34 AM 38. No Fees. Except as otherwise expressly set forth in this Agreement, no fees or other charges of any kind or amount shall be required by any Party hereto as a condition of the grant of any consent or approval which may be required under this Agreement. NOTICE TO BURNHAM THE BOGGY CREEK IMPROVEMENT DISTRICT MAY IMPOSE AND LEVY TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON THIS PROPERTY. THESE TAXES AND ASSESSMENTS PAY THE CONSTRUCTION, OPERATION, AND MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES AND SERVICES ON THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF THE DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO THE COUN'T'Y AND ALL OTHER LOCAL GOVERNMENTAL TABS AND ASSESSMENTS AND ALL OTHER TAXES AND ASSESSMENTS PROVIDED FOR BY LAW. [SIGNATURES CONTAINED ON FOLLOWING PAGES) -38- pRLIWEALW4779399 31 76 210 02 8 DW dN 2ln2*W7 5:34 AM r, IN WITNESS WHEREOF, the parties have executed these prosents on the day and year set forth below. KBL RNH 4,MJ1 Signed, sealed and delivered in the presence of the following witnesses: 7111. L .. -39- OALt1R ALEM77939.9 3176210028 OW dN 2lxa=T 8:34 AM BURNHAM INSTITUTE FOR MEDICAL, RESEARCH, a California nonprofit public benefit corporation r► ��!�r V , , 1 il� • .wl� r• (corporate seal) Executed on:���b � s s Signed, sealed and delivered in the presence of the following witnesses: -40- ORL1\REALEST1877939.9 31762/0028 DW aq 2122/2007 6:34 AM "LNLC 1 LAKE NONA LAND COMPANY, LLC, a Florida limited liability company By: Rasesh Thakkar, Vice President Executed on: 315 ) 2007 • r. M LIMITED JOINDER The undersigned hereby joins in the execution of this Agreement for the limited purpose of evidencing its agreement to be bound by only those terms and provisions hereof which pertain to the undersigned. LAKE NONA PROPERTY HOLDINGS, LLC, a Florida limited liability company By: asesh Thakkar, Vice President Executed on: , 2007 g,, _ A. "•' M ►'w 0RL11REALE811877939.9 3176210028 DKJ dtq 2/2?l2007 8:34 AM im Disclosure MAINTENANCE DISCLOSURE OF PUBLIC FIN P ER�EE TAKEN BY OF IMPROVEMENTS TO REAL THE BOGGY CREEK IWROvFMENT DISTRICT Under Florida law, community development districts are required to take affirmative steps to provide for the full disclosure of information relating to the public financing and ep p e undertaken by such districts. The law specifically maintenance of improvements to real property within the provides that this information shall be made available to all Persons currently de�� describing the in the District and to all pro spective District residents. The following es that have Creek Improvement District (the "Distari� n comein assessments, cturee is provided to fulfill been levied within such districts to pay for this statutory requirement, What is the pis et and how is it o erred? the Board of The District is an independent special taxing district established in 2003 by Florida. A local. unit of special- purpose government County Commissioners, Orange County, ter 190, Florida Statutes, the created pursuant to and existing under the ptovia� of Of land located in the City of Orlando, District encompasses approximately orange County, Florida, The District provides an alternative means for planning, financing, constructing, operating, and maintaining various public improvements and community within its jurisdiction. The District is governed by a five- member Board Supervisors, the of appointment of must be residents of the State and citizens of the United States. the owner of property within the the initial board, members were elected on an at -large Y District, each. landowner being entitled to one vote for each acre of land With earsrion the first rounded upward to the nearest whole nmber. Elan after e e initial appo on of Supervisors Monday m • Commencing Y sore whose terms and when the District attains a minimum of _qualified electors, Supervisors elector" in are expiring will basin to be elected by qualified electors of the District. the "qua this instance is any person at least 18 year's of age who i st�re th the Supervisor of Elmtions resident of Florida and of the District, and who is foregoing, register at any time the Board proposes to to vote in Orange County. NO g g, exercise its ad valorem taxing p °��'�, it shall, prior to the exercise of such power, call an election at which all members of the Board shall be elected by qualified electors of the District. are noticed in the local newspaper and �'e conducted in a public forum in Board meetings public records laws, the records which public participation is invited. Consistent with Florida's b business hours. Elected of the District are always available for public inspection during law and are subject to { members of the Board are similarly o °ham ale tad officials under thee State's ethics laws. the same disclosure requirements Disclosure -1 ORL1ViEALE8T677Y39 11782!0029 rnu dtd 2!2411001 9:91 AM Wh t infrastructure im rovemen does the Di trict rovide? ' and The infrastructure improvements provided by the District include roi dsrdodway distribution other drainage collection and water management systems, bridges, water spat y systems, wastewater and reuse systems, streetlighting systems, and open space and conservation cted with the proceeds of areas. These improvements are being constructed or have been constru the District's bonds (discussed below). Assessments F—e—e-sh. and —C-h-RX es improvements have been financed by the District The costs of these infrastructure imp (the `Bonds ")• j through the sale of Special Assessment Bonds, Series able solely from and secured by the levy The Bonds, and the interest due thereon, are pay of non ad valorem or special assessments against lands within the District which benefit from the construction, acquisition, establishment, and operation of the District's improvements. The District may only undertake the construction, acquisition, or installation of other future improvements and facilities, which may be financed by bonds, notes or other methods authorized by Chapter 194, Florida Statutes. More information can be obtained from the District's public records. ve exclude any operations and maintenance assessment which The amounts described abo may be calculated annually by the District's Board of Supervisors against all benefited lands in the District. � A detailed description Of. all - costs and allocations which result in the formulation of { assessments, fees and charges are available for public inspection upon request. Method of Collection The District's benefit and maintenance assessments may appear' on that portion of the annual real estate tax bill entitled "non -ad valorem assessments," end will he collected wner must County tax collector in the some manner as county ad valorem taxes. Each property owners will, pay both ad valorem and non -ad valorem assessments ed for ad valorem time. Property As with any tax bill, however, be entitled to the same discounts as pro if all taxes and assessments due are not paid within the pr escribed time limit, the tax collector is required to $ell tax certificates which., if not timely redeemed, may result in the loss of title to the property. This description of the District's operation, services ri financing timportant lro eintended hatt the provide assistance to the landowners and B District plays in providing infrastructure improvements lc�dd ti the a development ation about the communities. If you have questions or would simply Creek Improvement District, District District, please contact the District Manager, Boggy Offices: Attn• , telephone Disclosure -2 OFU.1V3£ALE8 'j'938.9 31,6=28 pHJ dhJ V=12= 8:34 AM ■ List of E_., Bch.._, ibiti Schedule 1 Schedule of Definitions * * * * * * * * * * * * * * * * ** Exhibit "(b)" Abutting Road System * * * * * * * * * * * * * * * * ** Exhibit "(r)" permitted Exceptions Exhibit "(u)" Property * * * * * * * * * * * * * * * * ** Exhibit "3.a.(iv)" Mass Grading Standards Exhibit "M-(ii)" CIP * * * * * * * * * * * * * * * * ** Exhibit "5" Survey Depiction KIM ORLI %RFALEM77939.9 81 7 8 210 02 8 OHJ dM 2124/207 8:34 AM ON Schedule 1 Deft+nitions ep "Account shall mean that certain separate, restricted, interest bearing escrow account established pursuant to the terms of the Escrow Agreement. A�reed A�at�ge' means 130% of the average private sector wage > Orange y� Florida as determined by the Agency for Workforce Innovation ( "A') ' measured for released ES 202 Report during the year in which Agreed Average Wage is being purposes of the Grant Agreement. As of the Effective Date of the Grant Agreement, the Agreed e based on Awl's most recent ES 202 Report (2�) is $46,965 (130% of $36,127, Average Wag a County, Florida). The term "wage" includes all wages, the average private sector wage in Orang salaries, commissions, bonuses, drawing accounts (advances to employees again t too employees of prizes and awards (if given by employer for employment), vacation PaY, p absent while in Pay and jury pay, payments to employees temporarily difference between regular p y d after death, dismissal pay, sick pay (not made military service, wages earned before death t under a plan or system) and Payments difference between workers' compensation and employee's salary). 46 rov m1u'tectural a„ shall mean certain restrictions, limitations and design criteria for development and construction of improvement within the Lake Nona DRI adopted pursuant to the Master Declaration. am" shall mean the Space PrV n►, schematic design and Av pursuant to the terms of the Development Obligation Agreement construction schedule established pu for the permanent Facilities. including its employees, agents and subcontractors, "Ar 'tect' shall mean the architect, provide professional design and engineering retained by Burnham or the Project Manager top services for the Temporary Facilities or for the Pennanent Facilities under an Architect Agreement 66&cl test A eem _ " shall mean the Consultant Contract between Burnham or the Project Manager and Architect, as same may be amended from time to time. °Availab" shall mean the Grant Funds (inclusive of ended or committed for the escrowed in the Account), less any and wsu�arrt�to previously of the Development Obligation permanent Facilities from such Agreement o expended, committed or budgeted from such fimds for the Agreement anad� the e1 �e terms of the Grant Agreement. Temporary `ease Fun g Amount" shall mean the initial amount of the Tier 1 Funds contributed by the Funding Parties to the Account, m the amount of $7,000,000, in accordance with Part V. • .a. of the Grant Agreement " pg&y Creek CCD 'I shall mean the Boggy Creek Improvement District. 1. owVi WzUn U"79A 8178210026 DHJ dlr ?221200 7 9-'2 AM J R `B Default" means an event of default under the Bond Documents whi ond ch (a) would the entitle the County of San Diego or Trustee under the Bond Documents to exercise remedies d under the terms of the Bond Documents, (b) has not been cured or weaved, and (c) reasonably be expected to have a Material Adverse Effect, provided that such Bond Default shall cease to exist if any remedies exercised upon an uncured event of default have been rescinded and annulled under the terms of the Bond Documents. «mod Documenje" means the Installment Purchase Agreement and Installment Sale Agreement between Burnham and the County of San Diego and the Trust Agreement among Burnham, the County of San Diego and the Trustee named therein, each dated as of February 1, 2006, as may be amended. `Bonds" shall mean the payment and performance bonds required pursuant to the Development Obligation Agreernent. "Budget" shall mean the reasonable and probable total cost of the design, planning, permitting; and construction of the Permanent Facilities, as estimated by the Project Manager, which shall be subject to adjustment in accordance with the terms of the Development Obligation Agreement. The Budget shall include eC Contingency d the �Oe te�rms�of the Development be separately budgeted for and reserved Obligation Agreement. «gurnhain„ shall mean Burnham Institute for Medical Research, a California nonprofit public benefit corporation "Bonham Camvus'shall mean approximately fifty (50) acres of land located within Lake Nona South, in the approximate location shown on Exhibit `B" to the Grant Agreement, to be donated by LNLC in accordance with the Grant Agreement and the Gift Agreements. "Business Daft" shall mean a day (other than a Saturday. or Sunday) on which banks generally are open in Orlando, Florida for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system. "Business Plan" means the business plan of Bumham for its Florida operations, which includes an initial budget and an organizational plan, and may include, among other information, strategic goals and objectives, general research and development information, and status reports. The Business Plan shall cover the first 10 years of Burnham's operations in Florida. The Business Plan shall include a proposed budget, including a staffing plan, an equipment purchase budget, and proposed operating expenses. The staffing plan shall identify the number of Jobs and estimated salaries to be funded in Florida. A copy of the Business Plan as of the Effective Date of the Grant Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference. The Business Plan may be amended subject to and in accordance with the applicable provisions of the Grant Agreement. DAD' shall mean the Boggy Creek CDD or any other community development district created by LNLC having jurisdiction over the Permanent Facilities Site. 2. ORLIMALESTM079A 31782/0078 DHJ my 2/7212007 832 AM 99 "Ceased O era 'o "shall mean, for each Report Period during the Measurement Period, the situation where Burnhmes total number of Jobs created and maintained at the Temporary Percent (500 Facilities or Permanent Facilities as of the endf such Report P Burnham wasato ha created and of the total number of Jobs, measured in the aggregate, maintained in Orlando, Florida as of the end of such Report Period as set forth in Burnham's ears after fiscal year 2016 being the same as for fiscal year 2016). For Business Plan (with fiscal y a total of one hundred example, in June 2010, Burnhsrn would be scheduled to have created was twenty -one (121) Jobs. If the number of Jobs at Burnham's Florida location esof this definition Far sixty (60) or less, Burnham would have Ceased Operations for pure Lions as of a given point in time, any Job with a wage purposes of the determination of Ceased Opera paid by Burnham that would cause a moving two -year average of the wages for all Jobs created by Burnham as of such time to be less than the Agreed Average Wage may not be counted for purposes of rejecting a claim of Ceased Operations. ti "Certificate of Oecuuanc"C91 y' or "" shall mean a permanent cerficate of occupancy, certificate of completion or such other equivalent approval, as applicable, for the Permanent Facilities issued by the City. "Can e Ord ' shall have the meaning set forth in the applicable Construction Contract. ,, it " shall mean City of Orlando, Florida, a municipal corporation organized and existing under the laws of the State of Florida. "Closing" shall mean the date when the parties to the Gift Agreements exchange the instruments and documents described therein. l ` ,C'lg& ASent" shall mean Broad and Cassel, Bank of America Center, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. ommunicatior?�e�n" shall mean any and all agreements, and any "C and all related documents, such as easements, leases, lon of any Communications sServices on or to the concerning, governing, or relating to p portion thereof or any buildings or portions of properties. within the Lake Nona DR1 or any p leasing) he buildings thereon, or to any persons or parties residing or otherwise utilizing (e.g., thereon. ) such properties, or any portion thereof or any buildings or any portions of buildings "Communications Services" shall mean any and all types of Vic video systems connected with, or related to, the provision of Comm es of voice ee'g� ices, including local services), including the following: (i) any and all d all telephone service, long distance telephone fi b ale Federal Communicat10n31Commiss on; voice over Ip services; types of "cable service," as such term is de Y (iii) any and all types of video services, including multi - channel video servvcebdall types of internet streaming, video over iP vi Internet cress svervi.cesovoice over IP services, and video internet services, including high-speed of baseband Over iP services; (vi) any and all types of broadband services; (vn) and aty�p� f telemedicine services; (viii) any and all types of narrowband services; (x) any 3. ���LE� ,?12N4 832AM 31TE2f = DFLI d�1 services or other communications - related services that are utilized by ry ce care providers or health care facilities; and (ix) any and all types of security monitoring "Construction Contract" shall mean any and alo construction eyed into Proms for the time by and of the Temporary Facilities or any portion thereof ( y portion thereof (to be between Burnham and any Contractor), or the Permanent Facil�ntractornselected by the Project entered into by Burnham or the Project Manager and any as such as applicable, Manager in accordance with the Development Obligation Agent)+ Construction Contract may be amended or replaced from time to time. The term "Construction Contracts" shall also include the `Prime Construction Contract." ° ction Ca tract DM= eats" shall mean the Construction Contracts and all orating the final, constructible plans, specifications and all other amendments thereto incorp planning, permitting aid construction of the reasonably necessary documents for the design, F ations, and all Change Orders and Specific permanent Facilities, and shall include the Drawings executed or, issued subsequent to the date of the Construction Contracts. or entities engaged by the Project Manager or +Consul ate' shall mean any person(s) Burnham responsible for services related to the construction of the Temporary Facilities or Permanent Facilities such as those services in connection with environmental procurement, pre- construction, owner's representation, cost estimation, scheduling, expediting, value engineering services, inspection, materials testing, and other similar services insurance, action, permitting, management, testing or related to the accounting, documentation, insp construction of the Temporary Facilities or the Permanent Facilities- "Consultant Contras" shall mean the contract(s) to provide services in fuuth0=Pe of the planning, design, permitting, and construction of the Temporary Facilities (to be entered into by Burnham and the Consultant(s)) or the Permanent Facilities (to be entered into by and between the Project Manager and the consultant(s) selected by Burnham or the Project Manager in accordance with the Development Obligation Agreement), as such Consultant Contract may be amended or replaced from time to time. ,Conlin ' shall mean ten percent (10 %) of the estimated Facilities and the Permanent planning, permitting and construction of each of the Temporary contracts Facilities until such time as the Prime Construction Contract and/or other Stipulated _ s such cost may are fully executed, at which time the allocable portion of Contingency applicable be reduced as to the executed contracts to four percent (4 %) of the contract price. Contingency fiends for the Temporary Facilities may be used to fund cost overruns on the Temporary Facilities, and Contingency funds for the Permanent Facilities may be used as provided in the Development a�e Obligation Agreement. The unused portion of the Contingency for the Temporary reserved for Project Cost for the Temporary any other part of the Two Million Dollars ($2,000,x) ennittin and construction of the Facilities shall be retained for use in the design, planning, p g Ternporary Facilities provided that the total Project Cost for the Temporary Facilities does not exceed Two Million Dollars ($2,000,000), and when Burnham no longer needs p such Costs for the 'Temporary Facilities, any such remaining amounts shall be available pay 4. 0NAvtEALE31%W79A WOOD= DHJ dtl 7!7?12007 6',93 AM 0 1 Permanent Facilities. The unused porti on of the Contingency for the Permanent Facilities be transferred to the Laboratory Allowance as provided in the Development Obligation Agreement' "Con 'shall mean any contractor(s), duly licensed pursuant to Chapter 489, Florida ed by (a Burnham for construction and/or managing the construction within the ; Statutes' -engaged Burnham or the Project Temporary Facilities pursuant to the Construction Contracts, and (2) Manager in accordance with the Development Obligation Agreement, responsible for constructing the construction of the Permanent Facilities, or any portion tereot pursuant to the and/or managing ' shall also include the "Prime Contractor." Construction Contracts. The term "Contractor' .��t O�e1runs" shall have the meaning set faith in Article VT of the Development Obligation Agreement. «(;autlt' County, Florida, a charter county and political subdivision of shall mean Orange the State of Florida. of a twenty -four {24) hour period beginning and "pay' means a calendar day consisting and includes Saturdays, Sundays and all holidays, ending at 12.00 midnight Orlando, Florida time, eat fall s due on a Day except that in the event that an o l ggb° shall be deemed due on the nAgreement xt B Business Day thereafter. that is not a Business Day, such "Design Contract" shall mean the design contract(p) for the design and engineering of the Temporary Facilities or any portion thereof (to be entered into by and between Burnham and any or the Perm Facilities or any portion thereof (to be entered into by and Design Professional(s)) and the Design Professional(s) in accordance with the between Burnham or by the project Design Contract may be amended or replaced from Development Obligation Agrmn ), as time to time. "Desi a Pro £essional" shall mean any design professionals) or engineer(s), including any b Burnham for the design of the Temporary Facilities or Architect and Project Engineer, engaged e design of the Permanent Facilities pursuant to the terms by Burnham or the Project Manag of the Development Obligation Agreement. fi "Dever t Oblircation Ate" shall L BC and aBu� Development the Chant in Agreement (Permanent Facilities) by and between LNB subsequent agreement Agreement and as it may be amended in accordance with its terms, or any entered with substantially the same material terms, obligations, te Funding Parties, such approval not to Burnham and another Project Manager, �f approved y unreasonably withheld. shall mean the City of Orlando Third Amended and Restated "Deg elo »meat of Regional Impact dated June 27, 2005 and Development Order for the Lake Nona .recorded August 10, 2005 in Official Records Book 8120, Page 3679, of the Public Records of Orange County, Florida, as amended from time to time 5. ORLIIRFALEST1siN7D 7 WM AM 3176YIa0b OMJ db) ?nom _I "Dispute Resolution Panel" shall mean a standing panel of three members designated to resolve disputes between the Parties under Part V.A.3.g. of the Grant Agreement. The Project Manager and Burnham shall jointly select one member of the panel. The Funding Parties shall jointly select the second member of the panel. The two members so selected shall jointly select the third member of the panel, who shall act as the panel chair. So long as LNBC is the Project Manager LNLC shall not play a role in selecting the Funding Parties' panelist. Each panelist shall be an appropriately qualified third -party neutral who is not current employee of or current consultant to any of the Parties. Each party shall bear the cost of its respective panelist and the non - prevailing party in any dispute submitted to the panel shall bear the cost of the third panelist. In the event a panelist is unable to .serve, his replacement shall be chosen by the parties that selected him. "Drawin sand Specifications" shall mean the construction drawings for the Temporary Facilities or the construction drawings for the Permanent Facilities, as the same may be changed from time to time in accordance with the terms of the Development Obligation Agreement. "Draw Request" shall mean a request for disbursement of Grant Funds from the Account for Project Costs made by Burnham or the Project Manager to the Funding Parties, together with supporting documentation, which shall include a copy of all applications for payment, invoices or receipts certified by Burnham or the Project Manager, as well as copies of the documentation required in connection with payments due under the Design Contract, the Prime Construction Contract, the Construction Contracts or in respect of payments due to Vendors, Consultants or others. Such application shall include, as applicable, the certification set forth in Attachment F to the Development Obligation Agreement (or a comparable certification if made by Burnham for any Project Costs for the Temporary Facility) and shall include, as applicable, a copy of the consolidated and reconciled pay application submitted to Burnham and/or the Project Manager by any Contractor, certified by the applicable Design Professional and any additional required documentation. Documentation submitted with each Draw Request shall be sufficient to establish that amounts requested for payment were actually incurred for Project Costs. Each Draw Request shall include the appropriate Waivers and Releases. Each Draw Request shall reflect the appropriate Retainage under the applicable Construction Contract. "Draw Zero" shall mean the initial Draw Request submitted by LNBC the month following the initial funding of the Account and entitled "Draw Zero, 2007," for reimbursement of Project Costs incurred prior to the date thereof. "Effective Date" shall mean the date set forth in the first paragraph of the applicable agreement or otherwise specified as the date on which such agreement becomes effective. "Enabling Statute' shall mean Chapter 2006 -55, Laws of Florida, codified as Section 288.1089, Florida Statutes (2006). "EptitlemM" shall have the meaning set forth in the Gift Agreement (Permanent Facilities) with regard to the Permanent Facilities Site or in the Gift Agreement (Surplus Land) with regard to the Surplus Land, 2 oruIMALESWOO79A 9178210028"cN ZIZ* 07 5*2 MA 9B 0 to the Development order that °`Entitlements Am-M&-lent" shall mean any amendment Nona RI as described in the would increase and/or modify the entitlements for the en�e uses (e.g., to allow for the Gift Agreements, including, without limitation, changing proposed develo development of a hospital); provided, however, that LNLC shall not (and shall O aeurss �i� �ft�o�a � us for the not to) seek or approve a modifi��� Facilities e r devel to the, pment�of the B am Camp preclude operation of the Perm Permissible Use. health and/or `Bnviro�ental Laws" shall mean any federal, state or local environmental, �t or uirement, order, ordinance, directive, guideline, p safety- related law, rule, regulation, req adopted in the future. The tl existing and as amended, enacted, issued or Comprehensive Environmental permit condition, Currently but is not limited to, similar she or local laws. term Environmental Laws includes, Response, Compensation and Liability Act of 1980, as amended, _Enviro nmental ms' shall mean all material peamits, authorizations, licenses, " Per apvals, under any Environmental Laws for the continued conduct of pro and variances necessary operations in Ole manner then conducted. shall mean the party designated from time to °`Esc w mt" as to the Escrow Agreement, and as to the Gift time as such under the teams of the Grant Agreement and the Escrow Agreement, avenue, Agreements shall mean Broad and Cassel, Bank of America Centex, 390 North Orange Suite lr}00, Orlando, Florida 32801. ent" shall mean t� �' ��OW Agreement by and among the Fundiung -� �s�O tend into simultaneously with the Grant Agreement / Paxties, gram and the Escrow Agent en r Facilities shall be pursuant to which the construction of the Permanent Facilities and the Tempo ary p funded. estimated to be t" shall mean the sum presently `gstimated T et CO - p� committed or budgeted for the $79,000,000, derived by deducting the amounts r tied, cwbic Facilities from the Grant Funds, which is the current estimate to construction of the Temporary from which the Contingency (estimated to be complete the construction of the Permanent Facilities, 000 and the Laboratory Allowance will be established in accordance with the terms of the � $7'9 00 ) Lion Development Oblige Agreement- « F „ shall mean the fixtures and equipment installed Temporary or used in connection with the Facilities and the Permanent Facilities. ' �' • tense" shall mean the satisfaction of all of the conditions to Final Payment set `Final A obligation Agreement. forth in the Development g k completion of the Permanent Facilities, evidenced "Final m 1 ti n shall mean final anc b the City. by a certification by the Project Engineer and the issuance of a Certificate of occupancy Y set forth in the Development Obligation ``II Payment„ shall have the meaning Agreement. 7. _ ORLINMALE MSMA 3170UOY6 OW dhl=r-W 6:32 AM Greenaway Improvement DUtriet Capital Itmprovements for Infrastractore Page S source for distnbiking potable water and are protection water to all of the development within the project. The project's reclaimed water distribution system will include a series of intercormeoted and looped reclaimed water mains that run from the northwest corner of the developed property connected to an extension of the major distribution system from the existing City of Orlando Conawv 11 reclaimed water system. LOCO the potable water mains the reclaimed water maitre will nM through all of the primary roadway corridors hereinbefore described and conned to rho extreme boundaries of the property in an directions. The reclaimed water distribution system will serve as a source for distnbuting non-potable (irrigation) water to all of the development within the project. The development project's sanitary sewer system includes a network of gravity oollecfion systems, wastewater lift stations, and sanitary force mains corareoting to existing facilities located on the northwest portion of the project adjacOnt the Fastcrn Beltway that are currently owned and opa%W by the City of Orlando, These sanitary sewer facilities will act as the collection, transmission and distribution systems for development of the project, All sanitary sewer facilities will be constructed within the primary roadway haastructure identified in Fxhibit "A ". VL ELECTRICAL DUCT BANK The infrastructure roadway corridors will aceormuodate a plastic pips duct bank system. This duct bank system will enable the efficient distribution of electric power to the development. The proposed duct bank system will run within the rights-of- way or easements established for the roadway corridors and be placed as part of the initial roadway construction to significantly limit the amount of die►uption required to provide those needed services to the development project as construction progresses. g��prpj2p03tT3Sy6�Dip +d�ll�od�001 r1aTt-0S.da "Force Majeure Event" shall mean an event causing delay occasioned by a cause or causes beyond the control of the party whose performance is so delayed, including, without limitation: adverse weather conditions; earthquake; acts of God; war; war -like operations; civil commotion; riots; sabotage; terrorism; governmental (except County or City as to each such party in their respective proprietary capacities) or judicial action/inaction, regulation, legislation, or controls (including permitting or approval delays); third party lawsuits; moratoria; labor disturbances; or material shortages. The parties acknowledge and agree that a party's incompetence or failure to deploy reasonable resources to meet its obligations under any agreement shall not be deemed to constitute a Force Majeure Event as to such party. "Funding Pater y" shall mean each of the County, City and LNLC. Collectively, these entities may be termed the "Funding Parties." "Funding Rartio A_ ee ent" shall mean the agreement by and among County, . City and LNLC setting forth the rights and obligations of the parties with respect to the Permanent Facilities Site arising from or in connection with the Grant Agreement. "GA P" shall mean accounting principles generally accepted in the United States of America, applied on a consistent basis. "Gift Agreement (Permanent Facilities "shall mean the gift agreement entered into by and among LNLC, County and Burnham, with limited joinder by LNPH, for the donation and transfer of the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit "E." "Gift AKeexnemt (Bantus Land" shall wean the gift agreement entered into by and between LNLC and Burnham, with limited joinder by LNPH, for the donation and transfer of the Burnham Campus less the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit "D." "Gift Adepts" shall mean the Gift Agreement (Permanent Facilities) and the Gift Agreement (Surplus Land). "Governmental Authority" shall mean any board, bureau, commission, department or body of any municipal, county, state or federal governmental or quasi - governmental unit, or any subdivision thereof having or acquiring jurisdiction over the Temporary Facilities, the Pcrmanent Facilities or the Burnham Campus or any portion thereof or the management, operation, use or improvement thereof. "Governmental Licenses" shall mean all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities. "Cgant Agreement" shall mean that certain grant agreement by and among the Funding Parties and Burnham, including all exhibits, amendments and supplements thereto, as it may be amended in accordance with its terms. 8. ORLJVWALEVr "79A 31762MM OW Cry 4P1Y JW B= AM � 0 FBI One Million Dollars ($81,400,000) in cash c4C�r ta.F nds" shall mean the amount ofEighty- for Project Cost in accordance with the provided to Burnham by the Funding Parties to be used Grant Agreement. "Gross F1oor Area" shall have the meaning provided in the standards of the American Institute of Architects. and lease entered into by and between County and °`Ground Lease shall mean the ground ent Facilities Site ed n accordance with its t erms. f t a Permissible Burnham for the lease of the Perman b Use restriction, as defined therein), as it may e, amend azardou3 Subs ces" shall mean any hazardous or toxic substances, materials in wastes, regulated by Environmental Laws, as now or may hereinafter be pollutants or contaminants re8O etroleum roducts, biomedical waste, radioactive materials, amended, including, but not limited to, p chlorinated tilphenyls and asbestos. flammable or corrosive substances, explosives, Poly „� act " shall mean transportation impact hedevelopmen of the Burnham Campus. assessed by any Governmental Authority in connection vin "lnterchange" shall mean the interchange constructed at the intersection of Lake Nona Boulevard and State Road 417 a/k/a the Greeneway. "Job Commitmer" shall have the meaning set forth in the Ground Lease. "Jo s" shall mean full-time jobs and full-time equivalent jobs (based on a 35 hour work week), and Other Personnel, as defined berein; provided, no nonemployee person providing planning, design, permitting, construction or other similar services related to the Temporary Facilities or the Permanent Facilities shall qualify as a job such as v�� tabulating hie, may be any paid leave an employee takes during the pay period, oint venture partners or included. "Other Personnel" shall mean (i) employees of contractors, eons or services for licensees operating under agreement with Bwnharn that are performing Burnham and/or its affiliates in Florida in Burnham's facility in Orlando, Fl gaud other y Central by Florida locations consistent with whom n�ei and ues an)IRS Form 1099 (only wages paid Burnham as independent contractors of calculation of the by. Bumham to such Other personnel shall be included in waag or purposes addition, to be counted f the moving two -year average under Part VI.E. of the Grant Agreement). towards Jobs, Other Personnel shall: (a) perform ongoing services or functions for Burnham in the Temporary Facilities or permanent Facilities that migh t otherwise be performed by employees, but which Burnham has elected to procure through the services of Other Personnel due to the specialized nature of the expertise required or other business purpose, and/or perform their work for Burnham melutantiallY in the Temporary Facilities or permanent Facilities (other than customary ); and (b) not perform services or functions limited to terms of less than six months; and a 0RLMExMrWM79A 3178?) M DW dM 712MMI 832 AM wo 9B (c) not constitute more than 25% of the total Jobs. Jobs shall include binding offers accepted and committed to by the prospective employee or Other Personnel even though the employee's or Other personnel's commencement date may be deferred by up to one (1) year from the date of employee's or Other Personnel's acceptance of the offer. This definition excludes any position attributable to Burnham by virtue of a merger or acquisition of an existing business or operation in Orange County, Florida. For clarification, Other Personnel and Burnham employees shall only be included in Jobs on a full-time equivalent basis based on a 35 hour work week. For example, if a Burnham full-time employee spends 50% of his time in California and 50% of his time in Orlando, Florida in a given year, that employee would count as 0.50 of a Job. if a Burnham consultant that constitutes an Other Personnel spends 12 hours per week performing work for Burnham in Orlando, Florida in a given year, that consultant would count as 0.34 of a Job. %aboratory All owa " shall mean the sum, which shall initially be up to ten percent (10 %) of the Available Funds existing as of the conclusion of the Preliminary Design Phase (as defined under the Development Obligation Agreement), which sum shall be determined by Burnham in its reasonable discretion during the Preliminary Design Phase and reserved under and subject to the limitations of the Development Obligation Agreement and shall be available to Burnham pursuant to the terns of the Grant Agreement and the Development Obligation Agreement for (a) the completionlinstallation or reconfiguration of laboratory facilities within the Permanent Facilities, which may include furniture, fixtures or equipment that were initially utilized in connection with the Temporary Facilities and can be relocated to the Permanent Facilities, and (b) after the laboratory facilities within the Permanent Facilities are at 1000/ completion based upon 1 capacity for the 303 Jobs contemplated under the Business Plan and required under the Grant Agreement, for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities), and after payment of such CDD capital assessments for the Permanent Facilities Site, for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). "Lake ona l) 'or "Lake Ngna Develo of shall mean property that is subject to the Development of Regional Impact approved by City of Orlando and the State of Florida known as the "Lake Nona Development of Regional Impact" pursuant to the terms of Development Order, or the "Lake Nona Planned Development" pursuant to the terms of the PD, within which the Burnham Campus shall be located. "Lake North" shall mean that portion of the Lake Nona Development lying south of the Greeneway. "Le 11 Rcayirements" shall mean all applicable laws, statutes, ordinances, rules, regulations, orders, judgments, decisions, decrees, standards, and requirements. i �`LNBC" shall mean Lake Nona Boggy Creek, LLC, a Florida limited liability company. 10. -I 0RLIV E/1lpgIMM?9A 31767/0098 DW dM 7!09007 839 AM � 1 1 "I.NLC" shall mean Lake Nona Land Company, LLC, a Florida limited liability company. "LNPH" shall mean Lake Nona Property Holdings, LLC, a Florida limited liability company. " Master Association" shall mean the rqaster property owners' association created pursuant to the Master Declaration. "Master Declaration" shall mean the master declaration of covenants, conditions, restrictions and easements for all or a portion of the properties within Lake Nona South lying generally west of the Interchange as determined by LNLC. "Material Adverse Effect" shall mean (a) as of the Effective Dale of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to substantially impair Burnham's ability to conduct its core operations or to fulfill its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement, and (b) after the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to prevent Burnham from fulfilling its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement. "Measurement Period" shall mean the period during which the number of Jobs and the moving two -year average of the wages paid by Burnham for all Jobs created by Burnham are measured, which period shall commence July 1, 2009 and shall end upon the last day of the Term of the Ground Lease. The Measurement Period may be extended as provided in Part XII of the Grant Agreement. "Memorandum of Funding Parties Agreement" shall meaty the memorandum of the Funding Parties Agreement to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida. "Memorandum of Ground Lease" shall mean the memorandum of the Ground Lease to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida promptly after the Ground Lease is executed. inimum R2uirements" shall mean the minimum programmatic requirements for the Permanent Facilities, set forth on Exhibit 'B" lion" shall mean the option to purchase the Permanent Facilities Site granted by County to Burnham pursuant to the terms of the Ground Lease. "07rEl3 Agreement" shall mean the, Innovation Incentive Funding Agreement between the State of Florida's Office of Tourism, Trade and Economic Development and Burnham which 11. ORLINREALESi M"7R4 3175=ma DHJ dN 212 ?=U 8:32 AM s 98 controls the obligations of Burnham and OTTED with regard to incentive grants awarded under the Enabling Statute, as it may be amended in accordance with its terms; provided that no such amendment shall affect any of the agreements with the Funding Parties unless the Funding Parties consent thereto. °T 'es" shall mean the parties to a particular agreement. "PD" shall mean that certain Ordinance Establishing the Toning Classification as PD, Planned Development, and C, Conservation, Districts on the Lake Nona Development Regional impact as Adopted by City Council dated October 25, 2004 and November 11, 2004 at Official Records Book 7699, Page 3056, of the Public Records of Orange County, Florida, as amended by that certain amendment dated July 25, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3662, of the Public Records of Orange County, Florida, as amended from time to time. , TD Amendment" shall mean any amendment to the PD submitted to the City for review and approval, whether before or after the date hereof, provided, however, that LNLC shall not (and shall cause its affiliates not to) seek or approve of a PD Amendment which would preclude operation of the Permanent Facilities or development of the Burnham Campus for the Permissible Use. "Permanent Faciliti es" shall mean (i) the approximately one hundred seventy -five thousand (175,000) square feet of Gross Floor Area in one or more buildings on the Permanent Facilities Site for the use and benefit of Burnham employees and guests in accordance with the - Permissible Use, which is to be constructed pursuant to the Grant Agreement and the Development Obligation Agreement; provided, however that Burnham may reduce the Gross Floor Area of the Permanent Facilities by an amount not to exceed ten percent (10 %) without the unanimous approval of the Funding Parties; and (ii) all adjacent surface and subsurface infrastructure and utilities and all related on -site improvements, including parking, driveways, landscaping, hardscaping, signage and irrigation, but specifically excluding surface water runoff /drainageJretention/detention facilities. "permanent Fa . 'ties ComDlgtion Date' shall mean the date that is thirty-six (36) months from the Effective Date of the Grant Agreement or such other date as may be agreed to in writing by the Funding Parties and Burnham. "Permanent Facilities Site" shall mean the approximately 12 acre parcel of real property within the Burnham Campus upon which the Permanent Facilities shall be located, as shown on Exhibit "C" to the Grant Agreement. Tmissible Use" shall mean, subject to completion of the Permanent Facilities, uses permitted on the Burnham Campus, which shall be limited to the following and shall be subject to compliance with all applicable laws: (a) medical, life science and clinical research and development, (b) light manufacturing in the life sciences or medical field, including diagnostics, devices, pharmaceuticals and reagents, (c) undergraduate, graduate and post - graduate education, including classrooms and lecture halls, (d) research facilities related to a medical hospital, (e) 12. o,u,�EUesneawn.� 9179 07 a= AM • r r ancillary related research - oriented healthcare and life science uses, and administrative uses related to the foregoing, and (f) support services for the foregoing which may include, but is not limited to, a cafeteria/restaurant, child day care center and fitness facility for use by Burnham's personnel and employees and Burnham's sublessees' personnel and employees. '`Permits" shall mean all building, development and environmental permits necessary to the proper execution and completion of the Work which are legally required, including, without limitation, SPIVIP and site plan submissions, general building permits, street access permits, easements and all other permits, licenses, inspections, fees and the like required to complete the Permanent Facilities, unless specifically stated otherwise in the Construction Contract Documents, sewer (sanitary and storm), water, electrical power, telephone, data, cable television and gas tap fees regarding utility connections and extensions, utility meter installation and hook-up charges, and other charges assessed by the local entities having jurisdiction, permits for elevator, mechanical, plumbing, electrical and all other trade work; and all partial and final certificates of occupancy and other permits necessary to permit the lawful occupancy of the Permanent Facilities by Burnham. 'Permitted Exceutions' shall have the meaning given such term in the Gift Agreement (Permanent Facilities) or Gift Agreement (Surplus Land), as applicable. °`P�son" shall mean an individual, estate, mist, partnership, limited liability company, corporation, Governmental Authority or other legal entity. "Primary pmt pggQIIn " shall mean the location in the State of Florida at which no less than eighty percent (Soo/0) of Burnharn's Florida employees are employed. "Prime uotion on ct' shall mean a Construction Contract with the Prime Contractor that is, in the case of the Permanent Facilities, consistent with the terms and conditions of the Development Obligation Agreement. "Prirne Contractor" shall mean: either (i) a construction manager operating "at risk" for the completion of the Work or (ii) a general contractor operating with a Stipulated Sum contract for the completion of the Work; either of which, in the case of the Permanent Facilities, will be engaged by the Project Manager to be responsible for constructing and/or managing the construction of the Permanent Facilities pursuant to the Prime Construction Contract. The Prime Contractor for the Permanent Facilities shall oversee and be responsible for all Contractors performing Work on the Permanent Facilities Site, except, at the option of the Project Manager, the Contractor(s) responsible for that portion of the Work related to earthwork, stormwater ponds and master drainage systems, master utilities, landscape and hadscape and equipment furnished by the Project Manager. "Prime Rate" shall mean the then- existing prime rate set forth in the Wall Street journal or comparable paper of national circulation. "P 'pct st" shall mean all actual costs resulting from (a) amounts incurred with respect to the Design Professionals pursuant to the Design Contracts; (b) amounts incurred with respect to the Contractors pursuant to the Construction Contracts; (e) amounts incurred with respect to vendors and Consultants pursuant to their contracts; (d) amounts incurred with respect to Architects pursuant 13. oRLi%REAUES7 M"7QA 3176=28 OW dN Zra=T 3:32 AM W 0 a,ll to their contracts; (e) fees and expenses for construction permits and approvals, Impact Fees, connection and capacity charges and the like; and (f) other costs or expenses (including attorneys' fees and expenses incurred after the Effective Date of the Grant Agreement), except for such fees and expenses as may be incurred by Burnham in any claim, lawsuit or proceeding against the Funding Parties, or any proceeding asserting a violation of any Federal, State or Local statue, law, code, ordinance, rule or regulation, or any proceeding relaxing to any fines or penalties assessed against Burnham in connection with the construction of the Permanent Facilities, or any fees attributable to any lobbying efforts), provided such costs are directly attributable to materials and services necessary for planning, design, permitting, and construction of the Temporary Facilities or the Permanent Facilities or F&E installed within time Temporary Facilities or the Pen went Facilities, In addition, -after Final Completion and after the laboratory facilities within the Permanent Facilities are at 100% completion based upon capacity for the 303 Jobs contemplated under the Business Plan and required under the Grant Agreement, if there are Available Funds remaining in the Account, "Project Cost" shall also mean actual costs for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities), and if there are Available Funds remaining in the Account after payment of such CDD capital assessments for the Permanent Facilities Site, actual costs for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). Notwithstanding the foregoing, "Project Cosr' shall not include costs or expenses for items or services that are not necessary for the planning, design, construction or permitting of the Temporary Facilities or Permanent Facilities or for payment of CDD capital assessments in accordance with the immediately preceding sentence, including without limitation entertainment, alcohol, travel or per diem beyond customary standards, and luxury accommodations. Project Costs shall be y reimbursable by Draw Requests. f "Project Engineer" shall mean the engineer retained by Burnham or by the Project Manager from time to tune, in the can of the Permanent Facilities, in accordance with the Development Obligation Agreement, for the performance of the Work. " Proiect Managef" shall mean LNBC or any other project manager retained by Bumham to manage the design and construction of the Permanent Facilities pursuant to the Development Obligation Agreement. "Provi r ' shall mean any Person providing Communications Services on or to the Burnham Campus or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or utilizing (e.g., leasing) the any of the properties within the Lake Nona DRI, or any portion thereof or any buildings or portions of buildings thereon, which Person may be, or may subsequently become, affiliated with LNLC. "Punchlist Items" shall mean those minor items which are at variance with the Construction Contract Documents and the Drawings and Specifications as of the Substantial Completion Date and which for achieving full completion in the aggregate will not exceed the Punch ,list Period except as otherwise specifically provided in the Development Obligation Agreement, and which do not materially interfere with the use and occupancy of any part of the Permanent Facilities for its intended use, Prior to commencement of the Punchlist Period, the Architect and the Project 14. oRL11REALE3T18M79A 31782== DHJ dhj P!!2=7 8:32 AM Manager shall prepare a written description of the form and scope of all Punchlist Items and a schedule setting forth the estimated time and value for completion of the Punchlist Items. 'Tunchlist Period" shall mean the period of time from the day after the Substantial Completion Date for each improvement to the date on which all Punchlist Items are resolved to the reasonable satisfaction of the Project Manager and Burnham, which period shall not exceed sixty (60) days, except that the Project Manager shall not be required to cause the completion within such time any items that are not reasonably capable of such completion (but shall be required diligently to use commercially reasonable efforts to cause the applicable Contractor or Consultant to commence and continue with such work as necessary to finish such items as soon as reasonably practicable), so long as the fact of the incompletion of such items does not materially interfere with the use and occupancy, of any material part of the Permanent Facilities for its intended use. During the Punchlist Period, Burnham agrees to grant the Project Manager, the Contractors and the Consultants reasonable access to the Permanent Facilities Site in order to accomplish completion of the Punchlist Items and perform any other services then required under the Development Obligation. Agreement "Report Period" means the applicable reporting period as described on the schedule attached hereto as Exhthit KC." "Research Park" or "Research Park at LaU Nona" shall mean the research park to be developed by LNLC and located upon up to one hundred fifty (150) acres, inclusive of the Burnham Canopus; provided, the ultimate size of and uses within the Research Park (except for the uses on the Burnham Campus which shall be the Permissible Uses) will be determined by LNLC based upon market demand. 11 etainaue I shall be applicable to all Construction Contracts and shall mean (i) ten percent (10%) of the total amount of any Construction Contract until such time as Fifty Percent (50 %) of the Work under said Construction Contract is complete; (ii) five percent (5 %) of the total amount of any Construction Contract after fifty percent (50 °/9) of the Work is complete until Substantial Completion of the Work; and (iii) two percent (2 %) of the total amount of any Construction Contract after the Work has achieved Substantial Completion; provided however, there shall be no retainage for amounts due to Vendors. Upon final completion of the Temporary Facilities or Final Completion, any remaining Retainage shall be distributed as provided in the Construction Contract and the Escrow Agreement. "Swe of Work" shall mean the construction of the Permanent Facilities: (i) substantially in accordance with the Construction Contract Documents, and (ii) consistent with the approved SPMP. "Security Ag merit , shall mean Exhibit 115" to the OTTED Agreement. "Space. Program" shall have the meaning given such term in the Development Obligation Agreement. "Special Conditions" shall mean the conditions set forth on Attachment B to the Development Obligation Agreement. 15. onimALESTMU79.4 31 7e?A a DHJ 44 WAYA97 9= AM ► 9g :,i 618pend Down Scheduld" shall mean the schedules for the timing of the use of the Grant With Funds as described in the Grant Agreement, which schedules will be prepared by Bu Obligation assistance from the Project Manager in accordance with the terms o e Development 4 Agreement in the case of the Permanent Facilities. U SPMP , shall mean the final, non - appealable Specific Parcel Master Plan for the I! development of any portion of the Burnham Campus, as approved by the City. " tinulated Sinn , shall mean a stipulated or fixed price, or guaranteed maximum price, for Project Costs under the Construction Contracts phase orders. The Stipulated Sum includes all amounts in Draw Zero for the Permanen t ac °'Subcontra toe _r" shall mean any subcontractor in privity with any Contractor or any other Subcontractor, at any tier. "SWb eas'na Restrictions" shall mean that subleasing, and for - profit activities in the Permanent Facilities must be consistent with the Permissible Use and have the prior written approval of the Funding Parties, which consent shall not be unreasonably withheld, and, commencing on the fifth (5 anniversary of the issuance of a Certificate of Occupancy for the se more than twenty -five percent (25 %) of the use within permanent Facilities, must not compri the Permanent Facilities based upon the total square footage of the Permanent Facilities as of the of date of measurement. The foregoing limitation shall not begin until the fifth (an anniversary w the issuance of a Certificate of Occupancy for the Permanent Facilities in an effort to allow Burnham the time and opportunity to staff and occupy the Permanent Facilities and shall only apply during the term of the Ground Lease; provided, the foregoing shall not serve in any way to limit or terminate the obligation to comply with the Permissible Use which is intended to and shall run with title to the Permanent Facilities Site. "Substantial g =R1e�dn" shall mean the level of completion of an improvement wherein such improvement has no material defects or deviations from the approved plans therefor and can be operated for its intended use as certified by the Project Engineer, and such improvement has received either a permanent or temporary certificate of occupancy such that Burnham may take possession of and occupy the improvement for its intended use or a certificate of completion or its equivalent from the appropriate governmental entity, as applicable. °'S pl Is Land" shall mean the Burnham Campus, other than the Permanent Facilities Site. "Target Construction Cost" shall mean the Grant Funds (aft deducting from the Grant Funds all Project Costs expended, committed or budgeted for the Temporary Facilities) less the Contingency and less the Laboratory Allowance as determined at the conclusion , such the Preliminary Design Phase in accordance with the Development Obligation Agreement; p may be adjusted following the Preliminary Design Phase in accordance with the terns of the Development Obligation Agreement. "Tenuorary Facilities" means the temporary facilities for Burnham's Florida operations to be constructed pursuant to a lease and affiliated agreements between Brunhann and lessor 16, ORl.11RFJ11 E871B1141D.4 117/710026 DHJ dI j 2/n "1= AM Independent Blood and Tissue Services of Florida, Inc. at 8669 Commodity Circle, Orlando, Florida 32819 (approximately 14,000 square feet) and warehouse space at 8663 Commodity Circle, Orlando, Florida 32819 (approximately 300 square feet) pursuant to the terms and conditions of the Grant Agreement, or such other site in Orange County, Florida as reasonably agreed by Burnham and the Funding Parties. 'Tier 1 Funds" shall mean the initial tier of the Grant Funds in the total amount of $70,000,000, to be funded'pursuant to the terms of the Grant Agreement, of which $7,600,000 shall be contributed by LNLC (10.9 0/6), $29,700,000 shall be contributed by City (42.4 %) and $32,700,000 shall be contributed by County (46.7 %). "Tier 2 Funds 1 shall mean the second tier of the Grant funds in the total amount of $6,000,000 to be funded pursuant to the terms of the Grant Agreement, of which $3,000,000 shall be contributed by City (50 %) and $3,000,000 shall be contributed by County (50 %). "Tier 3 Funds" shall mean the third and final tier of the Grant Funds to be funded pursuant to the terms of the Grant Agreement, of which $5,000,000 shall be contributed by County (100 %). "Tranportation Impact Fee Credits" shall mean any transportation impact fee credits that may be generated from or in connection with 'the development of the Burnham Campus or the Lake Nona DRI. "Trips" shall mean the average daily trips in accordance with the Development Order then in effect, as the same may be amended from time to time. "Vendor" shall mean any vendor of construction materials, including but not limited to fixtures and equipment, with which the Project Manager, Burnham or any Contractor has a direct contract for materials, fixtures or equipment to be used in the construction of the Temporary Facilities or Permanent Facilities. "Waivers and Releases" shall mean the following items from the Vendors, Consultants, Design Professionals and Contractors for which payment is requested, as the case may be: (a) fully executed partial waivers and releases of claims in the amount of the immediately prior payment made by the Funding Parties (through the Escrow Agent) to Burnham and (b) conditional waivers for the payment amounts contained in the current Draw Request, in each case, for the Vendors, Consultants, Design Professional or Contractor, excepting any claims that may remain in dispute. "Warranty Period" shall mean the period of time during which the Contractor's warranty is in effect under the Construction Contract Documents. "Work" shall mean all obligations, duties, and responsibilities assigned to, or undertaken by, a Contractor pursuant to the Construction Contracts, required to complete construction within the Temporary Facilities or to complete construction of the Permanent Facilities in accordance with the Construction Contract Documents. 17. oRUMALESM6478.4 31 ro?MS OW &4 2h21 W 6.92 AM v- 70 f Burnham Institute for Medical Research BUSINESS PLAN I IJ EXPANSION to ORLANDO FLORIDA I October 2006 1 � I EXECUTIVE SUMMARY 1.1 Overview 2 MISSION OF BURNHAM INSTITUTE FOR MEDICAL RESEARCH 2.1 Background on Burnham Institute for Medical Research 2.2 Research Centers 3 THE STATE OF FLORIDA 4 ACTION PLAN 4.1 Negotiate enabling agreements with the State of Florida 4.2 Negotiate an agreement with the State Board of Administration 4.3 Negotiate enabling agreements with all Other interested Parties The agreements necessary to fund the following, a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square foot state -of -the -art facility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for SISMM In local philantbropic support for BIM e) commitment for $10MM In funding from the University of Florida 1) commitment for $27MM in funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORB 4.4 Develop key infrastructure for Burnham Florida 4.5 Identify key senior appointments 4.6 Implement a Collaboration Program 4.7 Implement a Graduate Program 5 ORGANIZATIONAL PLAN 5.1 Scientific Staff 5.2 Administrative Staff 2 • r • �r 4 4 4 4 5 6 6 6 6 7 7 7 7 7 7 7 7 7 7 7 7 8 8 8 9 Mal 6 INFRASTRUCTURE DEVELOPMENT 10 6.1 Facilities 10 I 6.2 Capital Equipment 10 63 Construction of Permanent Campus 10 7 INITIAL BUDGET 12 i 7.1 Statement of Activities (in $000's) 12 I * The total amount contributed by State will be $155,272,000 any variation in the budget summaries is the result of rounding 12 7.2 Balance Sheet (in 000'x) 13 7.3 Summary of Cash Flows (in 0001s) 14 7.4 Revenue Assumptions 15 7.5 Expense Assumptions 16 716 Major Capital Expenditures - Stub Period and Year 1 17 7.7 Use of Florida Suppliers 17 8 RECRUITING 17 8.1 Recruitment Process 17 8.2 Hiring Schedule 18 3 r i EXECUTIVE SUMMARY 1,1 Overview The Board of Trustees and Executive Management team at Burnham institute for MedinRefoeathe ( "BIMR ") view the expansion of our research efforts to a Florida campus as a unique opportunity State of Florida ( "Florida') and BIMR. The Orlando, Florida site d the esoul�� hat t provides, to recruit operationally and culturally. We will take this opportunity, and world -class scientists to work with us in the fields of cancer, Infectious and lnfl� rr an additional neurosciences and aging. In addition this expansion affords us the opportunity research program In the area of diabetes and obesity. We also plan to develop three technology cores thllhavwill e corenable es in the harmacology,uInsvitro and Idiscoveries vivo toxicology, chemistry, library library sth�ng er In vivo will P imaging. Our be vision Orlando ndo what University y ofCalifornia for Medical Research Diego was to La Jolla, l the catalyst for the creation and be t of a vibrant biotechnology industry. 2 MISSION OF BURNHAM INSTITUTE for MEDICAL RESEARCH Our mission of BIMR is to conduct world -class collaborative research ars and communty. disease, Improve quallty of life, and thus create a legacy for our employees, partners, We conduct basic biomedical research and our philosophy is grounded in the recognition that most breakthroughs in fighting human disease come from basic scientific investigations. Moreover, our emphasis on basic research, as opposed to clinically appgedthat have broads relevance in avnumber of reveal fundamental concepts and principles of cell biology diseases, The institute is a 501(c)3 non-profit corporation, formerly the La Jolley ace irRisesear� m Foundation. n 500 are an annual budget of approximately $80 million. of the 725+ employees at the scientists, and over 200 of those are Postdoctoral. Fellows. Currently BIMR Institute has 71 faculty members, The outstanding quality of our faculty allows them to very successfully compete for research funding from various government agencies, particularly the National Institutes of Health (N1H Federal grants make up about 80% of our operating budget. Other important sources of funding includd e private foundations, revenue from technology licensing, and philanthropy. Our research activities take place in nine buildings geographically located in the heart of San Diego's 1 biomedical research community on Torrey Pines Research Mesa. Within a two -mile radius of our campus, our scientists enjoy collegial access to neighboring institutes, including Salk Institute for Biological biotechnology community, the world's fastest growing of biotechnology community. and San Diego's thriving Y 2.1 Background on Burnham Institute for Medical Research Burnham Institute for Medical Research celebrates its 300' anniversary this year. Founded in La Jolla, California, as a non - profit medical research institute focused on cancer research, BIMR has grown to a 725 plus person effort, with an annual operating budget of approximately $90 million. Our mission at BiMR is to reveal the fundamental molecular mechanisms of disease, and to use that knowledge to devise the proto -type therapies of tomorrow. This mission is undertaken through a highly collaborative ? We of research that merges the talents of biologists with chemists, biophysicists, engineers, and computer scientists, creating a symphony of scientific synergy that emphasizes team -based approaches for tackling the great unmet medical challenges of today. Our mantra is "From Research, the Power to Cure." 4 r BIMR consistently ranks among the top 20 organizations for the impact of our research publications, and is among the top 0.04% organizations worldwide for citations received per publication, according to the Institute for Sclentlfic Information. Though journal publications are our chief product, during our 30 year history, BiMR scientists have also contributed directly or Indirectly at least 5 approved therapies and several diagnostic tests that are currently in use, saving and extending lives; plus, another 9 innovative therapies are currently In clinical testing at over 50 medical centers around the world. Burnham Institute for Medical Research Is an organization on the rise. Due to the extremely high quality of our scientific staff and our highly collaborative culture, BIMR has enjoyed 5 consecutive years of double -digit growth In its NIH grant base, at a time when NIH budgets have been flat or In decline. BIMR currently ranks 70' in the nation among all private research institutes in terms of NIH funding. NIH grants account typically for 80% of our annual operating budget. According to the Center for Advanced Research, BIMR is the most efficient private research Institution In the nation, covering 90.93% of Its operating costs through competitive grants awarded to its scientists. 2,2 Research Centers Research at BIMR is organized into 3 disease- focused research centers, bolstered by 3 technology centers. The Cancer Research Center constitutes approximately half the effort. BIMR has been a member of the National Cancer Institute ("NCI') designed Cancer Centers program for 27 years, in the category of "basic science' cancer centers. The Cancer Research Center has also been designed by the NCI through special grants we receive as: (1) one of eight centers for cancer drug discovery; (2) one of four centers for cancer bioinformatics, (3) one of six centers for defining the molecular signatures of cancer for generating more powerful diagnostic test, in partnership with neighboring organizations Including Sidney Kimmel Cancer Center, and (4) one of four centers for cancer blonanotechnology, also In partnership with neighboring organizations. Among the accomplishments to come from Burnham scientists for cancer are: (1) the laboratory technique known as the ELISA, which forms the basis for the PSA (Prostate Specific Antigen) test and many other clinical laboratory tests; (2) the enabling technology for the world's first biotech drug for { cancer, EpogenTm, used to support blood cell production in patient undergoing cancer therapy, (3) one of , the first vitamin -based drugs (Targretin`r � for cancer, that taps Into natural blopathways for fighting cancer; and (4) the world's first DNA -based drug for cancer to successfully complete final Phase iII clinical trials (decision on approval due this summer from FDA). The Dale E Webb Center for Neuroscience & Aging Research focuses on degenerative diseases associated with aging, particularly neurodegeneration (Alzhelmer's; Parkinson's; ALS), stroke, hears disease, and diabetes. Research in this Center is aimed at either protecting cells from age - associated loss, or replacing lost cells through stem cell technologies. Cell protection strategies to emerge from the laboratories of Burnham scientists include: (1) Memantine (Namenda`r' , a cytoprotective drug approved for Alzhelmees disease and In testing for glaucoma and stroke (2) two drugs used to prevent stroke and heart attack by inhibiting blot clot formation; and (3) a nerve repair therapy (NeuroguardTm) anticipated to gain FDA - approval this year. Through special grants awarded by the NIH, BIMR has been designated as one of four centers for devising new therapies for cardiovascular disease using bionanotechnology, With regards to cell replacement, BIMR was an early entrant into the field of stem cells and regenerative medicine, launching a research division dedicated to this exciting but young field of medical Inquiry 9 years ago. Today, the stem cell effort at BiMR constitutes the activities of nearly 100 scientists, perhaps the largest in the nation. Through special grants awarded by NIH, BIMR has been designated as one of six national exploratory centers for human embryonic stem cell research, and one of five centers for training the nation's scentists how to work with human embryonic stem cell research. To establish a safe -haven for performing research on all types of stem cells, we established in 2002 the Stem Celi Research Center, which includes the complete Infrastructure for deriving new embryonic stem cell lines and making them available to the general research community for regenerative medicine research. / The infectious $ Inflammatory Disease Center studies infectious agents and the immune system's mechanisms for defense. Research in this new Center at BIMR focuses both on devising new treatments for incurable infectious diseases, where the immune response falls to eradicate pathogens, and on investigations of autoimmune diseases (e.g. Rheumatoid Arthritis; Inflammatory Bowel Diseases; Lupus; Multiple Sclerosis) where the immune response is excessive and turns on the patient's own tissues. Discoveries to come from this Center include (a) elucidation of the genetic basis for familial susceptibility to juvenile diabetes and rheumatoid arthritis, finding a genetic difference in an immunoregulatory gene and (b) determination of the 3D- structure of the Anthrax Toxin and generation of the world's most potent chemical Inhibitors of Anthrax Toxin using NMR -based drug design, providing a rapid means of neutralizing this agent of bioterrorism. BIMR's technology centers include: (1) the Center for Chem /Cal Genomics, one of ten NIH- funded national centers for establishing high- throughput robotic systems for screening large collections of chemicals and enabling rapid drug discovery; (2) the Center for Proteolyflc Pathways, one of four NIH - funded national research resources devoted to developing Innovative proteomics technologies for discovering new biopathways and new targets for diagnostics and drug discovery; and (3) the Center for Computational Modeling, one of two national centers funded by NIH for devising Innovative computer algorithms for predicting the 3- dimensional structures of proteins and generating computational tools for molecular modeling, thus providing insights into the functions of the genome and laying a foundation for drug discovery. 3 The State of Florida In an effort to promote, stimulate, develop and advance business prosperity and economic welfare of Florida and Its residents, the Florida Legislature appropriated $200 million of Innovation Funds (the "State Funding'j to support the establishment of a biotechnology Industry in Florida. The institute has been granted $155,272,000 of the Innovation fund to be applied towards the operational cost needed to support the Orlando site until It becomes self sufficient in its tenth year of operation. The remainder of the required operational funds have been provided by a consortium consisting of orange County, the City of Orlando, Lake Nona land Company LLC, University of Florida, University of Central Florida, Florida Hospital, and Orlando Regional Hospital, 4 Action Plan The following key steps will constitute a plan of action for the establishment of Burnham Florida: 4.1 Negotiate enabling agreements with the State of Florida An agreement to provide $155,272,000 million in operational funds that we will require over the first 10 years and which I details the performance based milestones that BIMR will need to meet to access these operational funds has been negotiated with the State of Florida. 4.2 Negotiate an agreement with the State Board of Administration An agreement that provides the mechanism, structure, and strategy for Investment of the State funds and their release to BIMR has been negotiated and executed with the State Board of Administration (SBA). lull 4.3 Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square foot state -of- the -art facility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for $15MM in local philanthropic support for B1MR e) commitment for $10MM in funding from the University of Florida f) commitment for $27MM In funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORH have Jointly and severally been negotiated and executed with Orange County, City of Orlando and Lake Nona Land Company LLC, and the universities and hospitals listed above. 4.4 Develop key Infrastructure for Bumham Florida This will occur in two phases: Phase I will be to build out, approximately 14,000 square feet of temporary lab space In the Florida Blood Center (M). Lease for the space at the temporary space at FBC has been executed.. We would hope to take up occupancy In this space In April of 2007. Phase II will be a completion of the permanent 175,000 square foot facility at the Lake Nona site in Orlando, We have engaged Lake Nona Land Company LLC as the project manager for the construction of the permanent facility and under a very aggressive timellne estimate that we could take up occupancy early in 2008 4.5 Identify key senior appointments Key appointments will be the Scientific Director and the Vice President of Operations. These two Individuals will work as a team to build the scientific and administrative support teems needed to be successful In Florida. The COO and the VP Business Development have been designated by Awardee as the senior level points of contact for economic development activities related to Awardee's Florida operations. 4.6 Implement a Collaboration Program Burnham Orlando will present many valuable opportunities for collaborations with research efforts both within Florida and throughout the United States. Our goal is to develop effective collaborations with the University of Florida, University of Central Florida, Florida Atlantic University, MD Anderson and other research groups wherever possible, This will Initially require information dissemination including seminar programs that describe the growing capabilities of Burnham Florida to potential collaborators, as well as printed and web -based materials. �• 7 ■ Mai Several modes of collaboration are predicted: • Peer -to -peer collaborations that is common throughout the academic research model. • Access to the technological capabilities will enhance the outside institutions' chances of success and provide a competitive edge. • Investigators wish to collaborate on either preclinical or clinical development of a compound. These proposals will be examined based upon scientific merit. The goal is to leverage the joint effort to generate external funding to support the collaborative activities at both participating institutions. 4.7 Implement a Graduate Program The Burnham institute plays a very important role in the education of a large number of future scientists through the training of graduate students. Burnham Florida will establish a Ph.D. graduate program, in conjunction with our Florida University partners, based on the model developed and operated In La Jolla. This program is described below. The Institute started its graduate program in March 2006. The graduate program offers Ph.D. degree in two subject areas — Integrated and Applied Biosciences and Molecular Medicine. Integrated and Applied Blosclences is uniquely structured to offer students research training In fundamental Integration of biology, chemistry and physics while Molecular Medicine Is an expansion of the joint program with UCSD. The Institute also partners with the University of California at San Diego in a joint graduate training program in molecular pathology that supports the training of Ph.D. students. Many Burnham faculty members have appointments and teach at UCSD and other university departments. Currently, approximately 30 graduate students obtain their primary scientific training at the Institute. Graduate students make a vital contribution to the Institute's research effort. in 2001 -2002, approximately 32 publications from the Institute named graduate students as coauthors. we envision that we will partner in much the same way with UCF and/or OF to develop an exciting graduate program that will train the scientists of the future. 5 ORGAN=TIONAL PLAN Burnham Florida will be operated as an unincorporated division of BiMR. All employees will be subject to BIMR's Administrative Policies and all Faculty will also be subject to BIMR's Bylaws. The Administrative Policies and Bylaws will be modified and implemented in view of Florida. state and local law and regulations. Policy, programmatic and recruitment decisions will be made by the Executive Management Team. 51 Scientific Staff The Scientific Director will have responsibility for all scientific operations at the Florida campus. He /she will report directly to the President and CEO and will co- ordinate Florida campus activities with the La Jolla -based Center Directors including all Faculty level recruiting and hiring. The Scientific Staff recruitment will be Initiated by the Scientific Director and will follow Burnham guidelines for recruitment of faculty or Principal Investigators (PI's). This Includes seminar presentations, visits with and assessment by Burnham La Jolla faculty, letters of recommendation, and a written summary of their proposed research activities. It is anticipated that heads of each of the discovery research programs and technology cores will be recruited initially and that these department heads will report to the Scientific Director. The program heads will act as anchors for future hiring within each program or technology core. Mon --k Start -up packages for PI's may Include research support for up to three years. It will be expected that all faculty will develop sufficient support after three years to sustain their individual research programs, Including salaries. It Is likely that the biomedical faculty will be recruited primarily from academia, whereas the technology and drug discovery faculty will be recruited from a mix of academic laboratories as well as biotechnology and pharmaceutical corporations, The Scientific Director and the Technology Center Director will both be faculty members. We are looking at the Scientific Director as being a luminary In his/her field and that will also direct a research laboratory. The Technology Center Director will be responsible for putting Into place all of core facilities. The first cores In the temporary facility will be chemistry, genomfos, and In vitro pharmacology. Further research support staff will be recruited by senior faculty as well as by statewide and nationwide searches. 5.2 Administrative Staff The Vice President, Operations will have responsibility for all administrative, facility and support ; operations on the Florida campus. He/She will report directly to the Le Jolla based BIMR Executive VP and COO and will co- ordinate the Florida campus activities with the La Jolla based department heads. He/She will be responsible for hiring the following administrative personnel The Vice President, Finance will have responsibility for accurate financial reporting, internal controls, general accounting systems, accounts receivable/payable and payroll functions, as well as procurement (purchasing). In addition, the Vice President will be (a) the designed representative of Awardee to responsible for coordination with the Office of Supplier Diversity (b) responsible for establishing and Implementing a policy of making purchases from Florida vendors, to the extent it is cost effective and scientifically sound, and (c) responsible for ensuring that appropriate iiabillty insurance covering Burnham Florida has been obtained. We anticipate that the VP of Finance will be hired within 12 months of the Effective date of the Innovation Fund Agreement. The Director, Human Resources will be responsible for (a) Implementing BIMR employment policies, including BIMR's policies on equal opportunity employment, (b) Implementing a program to conduct workforce recruitment activities at public and private colleges and universities and community colleges in Florida which request the participation of Burnham Florida, (c) establishing a policy of awarding preference in employment to residents of Florida for administrative and scientific support positions, and (d) implementing a system for ensuring use of the Intemet -based job listing system of the Agency for Workforce Innovation in advertising employment opportunities. The Director, Office of Sponsored Programs will have responsibility for the pre - and post -award financial administration of grants and contracts from government and industry. In addition, the Director will be responsible for establishing and Implementing systems for tracking and reporting on (a) the number ; and dollar value of research grants to be performed by Burnham Florida that are obtained from the Federal Government or sources other than Florida, (b) the percentage of total research dollars received by BIMR from sources other than Florida which Is used to conduct research activities by BIMR in Florida, (c) the total amount of funding received by BIMR from sources other than Florida, and (d) tracking and reporting annually the amount of non - Florida funding obtained by Burnham Florida for each full -time equivalent tenure -track faculty member employed at Burnham Florida. The Director, Business Development will have responsibility in conjunction with the Vice President of I Business Development for establishing a technology out - licensing program. In addition, the Director In conjunction with the Vice President, Business Development will be responsible for (a) annually updating the Burnham Florida business plan, (b) patenting Inventions conceived or reduced to practice using Burnham Florida facilities (c) negotiation and execution of licensing agreements Involving technology developed by Burnham Florida; (d) negotiation and execution collaborative agreements with colleges and universities in Florida and with research Institutions In Florida, and commercial third parties. r �J The Vice President, External Relations will have responsibility In conjunction with the La Jolla based BIMR Executive Vice President of Development for planning and implementing BIMR's philanthropic activities In Florida. The Director will be responsible for marketing naming opportunities for charitable donations from persons or entities Involving the right to have all or a portion of the Florida facility named for or in the memory of any person, living or dead, or for any entity. 6 INFRASTRUCTURE DEVELOPMENT 6.1 Facilities Development will occur in two phases. Phase i will be to build out, approximately 14,000 square feet of temporary lab space in the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been executed. We would hope to take up occupancy in this space In April of 2007. Phase II will be a completion of the permanent 175,000 square foot facility at the Lake Nona site In Orlando.. We have engaged Lake Nona Land Company LLC as the project manager for the construction of the permanent facility and under a very aggressive timeline estimate that we could take up occupancy early in 2009 8.2 Capital Equipment Highly specialized capital equipment will be necessary to enable the research programs. The research programs will require capital support for molecular and cell biology, Including biochemistry and tissue culture, as well as structural biology. This will require centrifuges, CO2 incubators, tissue culture hoods, refrigeration and freezer units and an advanced microscopy core Including oonfocal and digital decenvolution systems, an automated cell sorter, NMR and robotic protein crystallization systems. The technology cores each require specialized cutting edge equipment. The chemistry core will have a structurally and functionally diverse chemical library will be acquired to achieve a competitive starting point, likely purchased from commercial sources. Analytical chemistry facilities are essential both to confirming the chemical characterization of drug screen actives, as well as for the generation of pharmaookinetic data by the current state- of-the -art methodology, liquid chromatography mass - spectrometry (LC -MS), high -field NMR and supporting computational capabilities. Core systems pharmacology and animal physiology equipment will include hematology and clinical chemistry auto - analyzers, HPLC and mass- spectrometry, ECG and respiratory physiology equipment. The functional genomics core will provide robotic liquid handling instrumentation and tissue culture facilities for genome -wide lentivirus -based sIRNA screening, In vivo imaging instrumentation for rodent studies will include an MRI, and a bioluminescence and CT scanner. 6.3 Construction of Permanent Campus The permanent campus will be built on a 50 -acre campus located at Lake Nona, Orlando. The campus will comprise 175,000 square feet of laboratory and administrative space. The facility will be designed, and constructed by LNLC to enable the BIMR to apply for LEEDS certification The 50 acre campus will be master planned for the future growth of the Florida campus and will include connections to the neighboring university campus and scientific communities. The site will be master planned in a manner to achieve a high level of social interaction among the sclentific staff. The laboratory building will be designed for a high degree of flexibility in both the structure and the laboratory support Infrastructure. The mechanical, plumbing, piping, and electrical systems will be designed for the initial designed space, but also for easy access for maintenance and future modifications. 10 Substantial, design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, microscopy, imaging, refrigeration farms, cold rooms, scientific staff offices, library, server and disk storage space, high speed and wireless telecommunications, meeUng/seminar rooms, cafeteria, outreach activities and science support staff. The master plan and design for the permanent facilities will take approximately 3 months and the construction will take approximately one year to complete. 11 T, I a 0 CD w c 00 V. m Z o� C ro r pm G �Nil+rio f0 vi C, r �+ on t3 of tJ c R4 r 5� V N W I i s a� N f9 t37 � li' Jv o N w a a N a0 CD coo�y� m mP°- NC vc�8tNp •f R CJ CST tM !7 N 0 C4 �I ►. 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Q. 0. �- 1�1 (P C m C N N m O C IL C CL d or L W OD c O � ro tL '�i •p� � imp C � T O � `c i � � m 'a � (0 C,4 W C f0 a� Ol > O N m� o n 5� ° mt�5pp to C N +� dv� Wj6gj In " " a 1 a tU 0.6 ti t F C {C RM i C 0 T w I uZ r� a) g i� 9 U) 01 C 0 CL 0 m � C. Q ° m m y+ fi+_2 CL � cc a s Cf) N U CO m O. � �,� � L � U Ck. 06 y C O L7 Q O m w so Tip ccsm CD -0 w Q CL co Cox r- Ll w = N pp E .0 01 p ,C Ny E N •oN r to p W W o X O pp,. Gt w v�5 v`n y a io a U 3i= a c� co ae v m 0.1 0 G W m CL -y T c F 'D cn p 3 Un ca a CL w �E 1 N �D�, g rte, N C C Ic h= 3 G> 21-- a F- a. Z C c �s 3. QC cn c� O 0 c C co N N �C a V G ro� a CL UP 0 ayi � a� N m h • I m N C s N w rr NN� Nv7 �t� NN �1nM In rr�NN N1lf �hNN l^1 Ne'i ID o r.-AIO V1 NN ^N N N to W in LLI i' N NN �� rrN� NM �tPrN M�QM f 1Y # r r�fr N In r90 r N NdM 1!z 1,!; Y IIr�� N r rA"0,11 NN::40 -.- 0 V N Iq IR? YrtDvia NVOW rte- 0 I N 191 •1 }�LJI # +Ik IL� r rM Jil N V hN ' ' NNN �` c it 7R f n+ r 19 C2 N M O N as r r O N N N r r •" �" W W r jff • g 00 ,2 ' 9B Exhibit "B" Minimum Requirements for a high degree of The laboratory buildings for the Permanent Facilitimfrwill u �esi�The large structural bays flexibility in both the structure and the laboratory support with heavy floor loading capabilities will allow for a great variety of laboratory space layouts as well as minimizing any vibration issues. The mechanical, plumbing, piping, and electrical system will be designed for the initial designed space, but also with an intent toward reasonable access for maintenance and future modifications. Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, miscroscopy, imaging, robotics/high throughput screening, refrigeration farms, cold rooms, scientific staff offices, library, information technology and communications infrastructure, meeting/seminar rooms, cafeteria, outreach activities and' science support staff. ,Me Minimum Requirements shall include meeting the standards set forth in the definition of Permanent Facilities and compliance with any and all applicable conditions of permits and land approvals, all sufficient to obtain a CO. ORl1VtEALESM0479.4 91764A= DHJ dhl2f2?/2007 602 AM Exhibit'6C" Reporting Schedule Report periods; Stub period of date of initial disbursement of funds under the OTl'ED Agreement through June 30, 2007 Annual period of July 1, 2007 through June 30, 2008 Annual period of July 1, 2008 through June 30, 2009 Annual period of July 1, 2009 through June 30, 2010 Annual period of July 1, 2010 through June 30, 2011 Annual period of July 1, 2011 through June 30, 2012 Annual period of July 1, 2012 through June 30, 2013 Annual period of July 1, 2013 through June 30, 2014 Annual period of July 1, 2014 through June 30, 2015 Annual period of July 1, 2015 through June 30, 2016 Annual (or stub) period of July 1, 2016 through the Term of the Ground Lease ORLflREA1.ZBT%W79A 3176VW28 6HJ dN 214=T 8:32 AM E-:K hibt� -'(b)' f EXHIBIT "r" PERMITTED EXCEPTIONS . 1. Taxes and assessments for the year 2007, which are not yet due and payable. 2. Orange County/Lake Nona Corporation Water and Wastewater Utilities Agreement recorded August 25, 1986 in Official Records Book 3814, Page 2159; First Amendment recorded August 25, 1988 in Official Records Book 4008, Page 3245; Lake Nona Utility Agreement with the City of Orlando recorded July 5, 1994 in Official Records Book 4764, Page 1185; First Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2327; Second Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2331; and Third Amendment recorded September 29, 2000 in Official Records Book 6097, Page 4121, all in the Public Records of Orange County, Florida. 3. Use Agreement with Orange County recorded February 9, 1987 in Official Records Book 3860, Page 704, Public Records of Orange County, Florida. 4. Declaration of Covenant and Waiver dated November 12, 1987, and recorded February 29, 1988 in Official Records Book 3961, Page 1078, Public Records of Orange County, Florida. 5. Declaration and Dedication of Avigation Easement recorded February 29, 1988 in Official Records Book 3961, Page 1089, Public Records of Orange County, Florida. 6. Lake Nona Transportation Impact Agreement recorded February 14, 1990 in Official Records Book 4157, Page 882, Public Records of Orange County, Florida. 7. That certain unrecorded Amended and Restated Orlando Utilities Commission/Orange County Water Service Territorial Agreement dated May 4, 1994. 8. That certain unrecorded City of Orlando /Orange County Wastewater Service Territorial Agreement dated May 4,1994. 9. Stipulated Final Judgment recorded August 5, 1994 in Official Records Book 4778, Page 1036, under Case No. CI -91 -692 and CI -91 -4738; and First Amendment to Schedule A recorded November 20, 1998 in Official Records Book 5620, Page 2336, all in the Public Records of Orange County, Florida. 10. Developer's Agreement by and between City of Orlando, Lake Nona Corporation and Orlando Utilities Commission recorded July 16, 1996 in Official Records Book 5090, Page 924, Public Records of Orange County, Florida. Exhibit "(r)" 1 oRLMFALESi1877999.9 81787/0028 DHJ dN 2/22/2007 8:94 AM / 11. That certain unrecorded Development and Funding Agreement for the Central Florida Greeneway Interchange at Lake Nona Planned Development by and between the City of Orlando and.Lake Nona Land Company dated June 18, 2001, as may be amended from time to tithe. 12. Notice of Establishment of the Boggy Creek Improvement District, a Community Development District recorded December 20, 2001 in Official Records Book 6417, Page 3725; Notice of Boundary Amendment recorded January 12, 2004 in Official Records Book 7261, Page 3561; Notice of Boundary Amendment. of the Boggy Creek improvement District recorded March 31, 2006 in Official Records Book 8559, Page 221, all in the Public Records of Orange County, Florida. 13. Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District recorded February 7, 2002 in Official Records Book 6452, Page 6958; First Amendment to Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation of Various Projects and Services recorded April 11, 2003 in Official Records Book 6865, Page 2178; Second Amendment to Interlocal Agreement between the City of Orlando, Florida and the Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation on Various Projects and Services, recorded August 11, 2006 in Official Records Book 8800, Page 4934, all in the Public Records of Orange County, Florida, all in the Public Records of Orange County, Florida. 14. Ordinance Establishing a Community Development District, to be known as the Boggy Creek Improvement District recorded June 27, 2002 in Official Records Book 6554, Page i 1847; Ordinance Expanding a Community Development District recorded April 11, 2003 in Official Records Book 6865, Page 2169, each in the Public Records of Orange County, Florida; an unrecorded Ordinance Contracting the Boundaries of the Community Development District, Known as the Boggy Creek Community Development District [sic]; Providing a Severability Clause; and Providing an Effective Date, dated February 13, 2006. 15. An Ordinance of the City of Orlando, Florida Amending and Restating the Development Requirements for the Lake Nona Planned Development approved by the City of Orlando on October 25, 2004 and recorded November 12, 2004 in Official Records Book 7699, Page 3056; An Ordinance of the City of Orlando, Florida, Amending the Development Conditions of the Lake Nona Planned Development Zoning District recorded August 10, 2005 in Official Records Book 8120, Page 3662, all in the Public Records of Orange County, Florida. 16. City of Orlando Third Amended and Restated Development Order for the Lake Nona Development of Regional Impact DRI2005- 00001, dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, Public Records of Orange County, Florida, as may be amended from time to time. Exhibit "W" 2 0ALMEALE8i 7"38.8 3178YMU OHJ dN ?PZVM? 8.34 AM 17. Interlocal Agreement among the Boggy Creek Improvement District, the Myrtle Creek Improvement District and the CGreenway Improvement District Regarding the Construction, Management and Financing of Certain Infrastructure Improvements, recorded May 25, 2006 in Official Records Book 8663, Page 1398; First Amendment to Interlocal Agreement among the Boggy Creek Improvement District, the Myrtle Creek improvement District and the Greenway Improvement District Regarding the Construction, Management and Financing of Certain Infrastructure Improvements, recorded August 2, 2006 in Official Records Book 8782, Page 3865, Public Records of Orange County, Florida. 18. Assignment and Agreement Regarding Development Rights and Obligations by and among Lake Nona Property Holdings, Inc., as Trustee under that Certain Land Trust Agreement Dated as of March 5, 1996, Lake Nona Land Company, Lake Nona Estates I, Inc. and Lake Nona Property Holdings, Inc., recorded February 18, 1997 in Official Records Book 5202, Page 4038, Public Records of Orange County, Florida.ITabbed_L61ZZMPTAG) 19. Cattle leases, if any; provided same shall be terminable upon thirty days' notice. 20. Master Declaration of Covenants, Conditions, Restrictions and Easements for by Lake Nona Land Company, LLC and Lake Nona Property Holdings, LLC, recorded in Official Records Book , Page , of the Public Records of Orange County, Flori da. 21. Development Agreement by and among Lake Nona Property Holdings, LLC, Lake Nona Land Company, LLC and Burnham Institute for Medical Research recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 22. Restrictions as contained in that certain Special Warranty Deed recorded in Official Records Book , Page of the Public Records of Orange County, Florida. 23. Mortgage executed by Burnham in favor of Lake Nona Boggy Creek, LLC as provided under the Development Obligation Agreement. The following easements shall be permitted in accordance with the terms of the Gift Agreement (Surplus Land): 24. Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate utility provider(s) recorded . in Official Records Book , Page , of the Public Records of Orange County, Florida. Exhibit "(r)" 3 ORLI IREALE,"077989.9 WOO= DHJ dhj 2/2212007 8:34 AM ■ 25. Drainage Easement in favor of the Lake Nona Land Company, LLC recorded in Official Records Book Page , of the Public Records of Orange County, Florida. 26. Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate communications provider recorded in Official Records Book Page , of the public Records of Orange County, Florida. 27. Any other matters contemplated under the governing contract,] Exhibit "(r)" 4 09LIIR6ALE8M79394 3170=8 DHJ dN Z72=7 8:34 AM ) 98 Lxh�� �d- ,,�u� ►� 9B EXHIBIT 113.a.rv)" Mass Grading Standards Surplus Land The Property will be filled and graded as part of the LNLC's Development Obligations. Additional technical details for the mass grading effort will be contained in engineering drawings prepared by the Project Engineer and supported by geotechnical information provided by Professional Services Industries, Inc. (the "Geotechnical Engineer ") and environmental information provided by Glatting Jackson Kercher Anglin Lopez Rinehart, Inc. (the "Environmental Consultant"), or such successor Geotechnical Engineer or Environmental Consultant as appointed from time to time by Seller. The natural in -place soils and fill material placed within the Property will be of a quality sufficient to support road and multi -story construction (three -story) structures with shallow and spread footings, typical of the Greater Orlando area. Following stripping and grubbing of surface vegetation and root mass to a suitable depth both as recommended and approved by the Geotechnical Engineer, suitable compacted fill will be placed on the Property as recommended by and approved by the Geotechnical Engineer and the City of Orlando requirements. The fill will be placed in compacted lifts not exceeding 18" (1.5 feet) with each lift compacted to a minimum density of 95% of the soils modified Proctor value (AASHTO T -180). LNLC shall employ the Geotechnical Engineer to perform quality control inspections and soil tests to ensure that such practices are being followed, which inspections and tests shall be documented in writing from the Geotechnical Engineer to LNLC on a periodic basis. In connection with the turnover of the completed project to, Burnham, the Geotechnical Engineer shall prepare and deliver to LNLC and BURNHAM a summary report of all inspections and tests performed referenced development of the Property. The summary will certify the satisfactory preparation of the material in -place and fill soils per the Geotechnical Engineers recommendations and the above described minimum requirements. BURNHAM shall accept the Property based upon a certification from the Geotechnical Engineer that the above practices have been followed and without warranty or recourse to LNLC. The Property will be graded by LNLC within a 4" (0.33 ft) vertical tolerance of those elevations specified by the Project Engineer in the approved engineering drawings for Lake Nona South, as prepared by Donald W. McIntosh Associates, Inc. and approved by BURNHAM, the City of Orlando and South Florida Water Management District (the "Approved Plans "). Ponds and interconnected pipes and ditches shall be constructed to the City of Orlando specifications and South Florida Water Management District Permit Conditions of Approval. As a part of LNLC's achieving substantial completion of the mass grading, sufficient survey to identify post grading elevations from the Property will be obtained by a licensed surveyor and supplied to BURNHAM to provide reasonable assurances that the vertical tolerances have been achieved in accordance with the Approved Plans. In connection with LNLC's achieving substantial completion, mass graded areas not intended by Burnham to have development occurring proximate to the grading completion will be seeded and rage. r o� a ORLIIREJU.FSi108Et348.1 "_ 3175210M DHJ d1l 2/21/2007 7;46 AAA 98 mulched or hydro seeded to ensure stability and' provide erosion control. Additional erosion control devises such as silt fences, hay bales, etc., required by permit in the vicinity of the grading area shall be functional and installed pursuant to the plans and specifications therefore as a condition of substantial completion. ORLt1REALE$718UM.1 al-6 � C 3 1 762/0 078 DHJ d" 2121/2007 7:45 AM ���JJJ • r r Exhibit "31(ii)" CIP oiected Capital ImproVemel otait g mdwa Imp %,v�ements Total CIP Less R.oadwa Improvemat Interchange Allocation $10,000,000 $20,400,000 $10,000,000 $20,000,000 Pond Construction and Acres Roadway & Stormwater $54,000,000 $17,000,000 $37,000,000 $7,000,000 Utilities Landscape & Irrigation $12,000,000 $10,000,000 $4,000,000 $3,000,000 $6,000,000 Electric & Lighting $9,000,000 R&MIOMO $3,000,000 5 000 0 0 UMMLO Loft Costs Subtotal $130,000000 $42,000,000 $88 000,000 Pro a to Infras c r Pro cts to be Intl d In a Estimated Ca I lmaroyement Pry Expressway Interchange (417 and Lake Nona Blvd.) Allocated Portion 81 Acres Master Stormwater Management (Pond Construction) Boggy C eek Rd. Interchange to Boggy ) 12'6J0 LF LF A - LN Blvd. (Expressway 3,300 L - (417 to Road Q) 1,200 LF L - (Flyovers and Connectors) 5,360 LF R - (Road E to Road A or LN Blvd.) 7,410 LF D West - (Shopping Center to South PL) 12,815 LF i _ (Boggy creek to OUC Access Rd.) 11,780 LF Q - (Boggy Creek Rd. to Road E - includes Road N) 8,470 LF Heintzelman Rd - (OUC Access to Dowden Rd.) 1,690 LF E - (Road A or LN Blvd. to UCF South East PL) %e- 1 0 � '� Nr lit it 04" if 4w. vo wO q :C TUIV6H -i G]FT AGREEMENT By and Between LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, as "LNLC" - and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit-public benefit corporation as "Burnham" March c� ,X007 city ncil Meeting:'��`� - 01/ Ite Documerrtr. 0,3 D .0RL1MALE$T ffM9.8 31 78 210 028 DHJ GN =V= 0-M AM 9B 196 GIFT AGREElY�NT. (Surplus Land) THIS GIFT AGREEMENT (this "AgreemenVo is made and entered into as of the Ny of March, 2007 by and between LAKE NONA LAND COMPANY, LLC, a Florida 1 'ted liability company, whose address is 9801 Lake Nona Road, Orlando, Florida 32827 C %NLC ") and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a 501(c)(3) California nonprofit public benefit corporation, whose address is 10901 North Torrey Pines Road, La Jolla, California 92037 ("Burnham!'), with a limited joinder by LAKE NONA PROPERTY HOLDINGS, LLC, a Florida limited liability company C %NPW ), whose address is 9801 Lake Nona Road, Orlando, Florida 32827 (Burnham and LNLC are referred to herein sometimes as a "Party„ or the "Parties "). CITALS WHEREAS, Burnham, a 501(c)(3) corporation, is an internationally recognized research organization focused on basic biomedical research in the fields of cancer, ueurosciences and aging, and infectious and inflammatory diseases; and WHEREAS, Btumbam plans to establish and operate facilities at the Burnham Campus in the City of Orlando, Orange County, Florida; and WHEREAS, Burnham, LNLC, County and City have entered into the Grant Agreement. pursuant to which LNLC has agreed to donate the Property to Burnham, and Burnham has i.. agreed to accept the Property, subject to and in accordance with the terms of this. Agreement, for the purpose of establishing medical, life sciences and clinical research facilities, and for the other exclusive purposes set forth in this Agreomen4 and WHEREAS, simultaneously herewith, LNLC is entering into an agreement with County for the donation and conveyance of the Permanent Facilities Site to County, with the intent that such property shall be ground leased to Burnham pursuant to the terms of the Ground Lease; and WHEREAS, LNLC and Burnham desire now to express their agreement for and with respect to the Property as more particularly set forth hereinbelow. DEFINITIONS Terms when used in this Agreement will have the meanings set forth in Schedule 1 attached hereto and incorporated herein by this reference, except to the extent set forth hereinbelow in which. case the following meanings shall control; (a) "Abutting Roads." The public roads running generally east -west through Lake Nona South and abutting the north and south boundaries of the Property. OROA iEALE57187 7 8 39.9 ' 3MV0028 DHJ dhi 41=007 8:84 AM l "Abutting Road System.,, The road system (excluding the Entry Road System) �) Lake Nona South and abutting the north and south running generally east -west through and drainage facilities as boundaries of the Property, together with related and adjacent utility described in Section 3- herein, all as shown generally on Exhibit "(b)" attached hereto and incorporated herein by this reference, within the right -of -way area to be ultimately approved by, and dedicated to, the City as more particularly set forth in Section 3 herein. be (c) "Additional Expansion Phase"' That phase approximately five hundred seventy-five thous to deeloped, from time to time, consisting f (575,000) gross square feet for use by Burnham and/or End Users. (d) Approved Master Plan:' The Master Plan for the Property prepared as provided herein and approved by LNLC. (e) °B,um cam's Expansion Phase," That phase of the Research Facilities to be set aside and developed by Burnham, from time to time, as an expansion of its operations on the Permanent Facilities Site, consisting of approximately four hundred twenty -five thousand (425,000) gross square feet. (f) , Obligations.,, The indemnity obligations of Burnham. Burnham s Indemnity as set forth in the paragraph entitled , Inspection of Property" hereinbelow. (g) "Development Cost" Any and all costs related to the performance of LNLC's Obligations to be performed Imunder, all of which shall be subject to the reimbursement by Burnham of its prorata share, either directly or by way of a capital assessment to be imposed upon the Property by the Boggy Creek CDD as provided herein, unless otherwise specifically provided herein. (h) "Due Diligence Materials." All due diligence materials prepared by or for �B with Burnham, or otherwise obtained by , respect to the Property, including, without limitation, any and all contracts, reports, surveys, Maps, plans, site plans, correspondence, applications, submittals and any and all other documentation in whatever format (e.g., electronic, digital, or otherwise). (i) "Entitlements." The ' rights under the Development Order to develop on the Property, in accordance with all applicable regulations, as contemplated under the Development Order and this Agreement, together with the number of Trips associated therewith. (j) "First Phase." That phase of the Research Facilities, consisting of the Permanent Facilities, to be developed on the Permanent Facilities Site. (k) "Intended Use." The development on the Property of Burnham's Expansion Phase and the Additional Expansion Phase. -2- ORL1 \REALES7b77039.2 317621002! Mo ON 222/2007 8:34 AM 98 • i i (1) "Lake Nona Boulevard Entry Road" or "Lain Nona Boulevard." That portion of Lake Nona` Boulevard lying within Lake Nona South, extending southerly from the interchange to the Entry Road (as defined in the Gift Agreement (Permanent Facilities)). (in) "Local Agreements." The Grant Agreement and the documents referenced therein, exclusive of the Funding Parties Agreement. (n) "Material and/or Adverse Effect." An act or occurrence which has a material, substantial and significant adverse impact or effect upon the use, density or intensity of development under the Lake Nona ART or PD, including, without limitation in the imposition of governmentally - imposed fees, costs or liabilities in excess of any contemplated thereunder. (o) "Master Plan►." The master plan for the Property to be prepared by Burnham with the input and assistance of LNLC, for review and approval by LNLC and Burnham, prior to the commencement of any development on the Property. (p) "Master Utility Infrastructure." The master utility infrastructure shall include the facilities constructed to the standards of the applicable provider with sufficient line capacity to provide potable water, waste water, and reclaimed water (for irrlgati.on purposes only) for development and construction of the Research Facilities on the Property at the capacity established by the utility provider or by the City for issuing building permits and certificates of occupancy within the Property in accordance with the Approved Master Plan, as applicable, within the Abutting Road System right -of -way or utility easements adjacent thereto. The Utility Infrastructure shall also include facilities for electric power, natural gas, services, communication services and other utility .services with the applicable electric utility provider, telephone provides, communications provider or other utility provides to ensure that electric, telephone, communications and other utility facilities are installed to the Property in sufficient capacities for development and construction of the Research Facilities on the Property for the Intended *Use in adiance additional the of Lake Nona Sow Plan, which may also have sufficient capacity to benefit portions (q) "Permitted Assignee." Any entity which, directly or 'indirectly, controls, is controlled by, or is under common control with, Burnham or LNLC, as applicable. (r) "Permitted Exceptions." Those title matters set forth in the paragraphs entitled `"Title" and "Conveyance of Title" hereinbelow and accepted by Burnham as set forth therein and those matters set forth in Exhibit "(r)" attached hereto and incorporated herein by this reference. (s) "P1ans and specifications." The site plans (including, without limitation, hardscape, signs, fence locations, materials and colors), landscape plans and specxf►cations (including, without limitation, irrigation, sod and trees), building plans and specifications (including, without limitation, floor plans, exterior elevations, exterior building materials, color samples and roof materials for any improvements to be constructed upon the Property), and other eqlnr documents or information all r more particularly thlarl y s forth in the Master Declaration. -3- a Nona Design Review Board, -3- ORL1�R2AL1r1 17939.9 3176210029 DHJ dhj y4Y/Z007 3:34 AM C I� 90 (t) "Project" Burnham's development of the Property consisting of the Research Facilities on the Property. (u) "Property." The Surplus Land, consisting of the property generally depicted and described in Exhibit "(u)" attached hereto and incorporated herein by this reference, consisting of the Burnham Campus less the Permanent Facilities Site, all subject to revision as set forth in the paragraph entitled "Survey" hereinbelow. (v) "Research Facilities." The medical, life sciences and clinical research facilities, together with the necessary on -site parking, utilities, landscaping and other infrastructure, to be developed and constructed upon the Property and the Permanent Facilities Site consistent with the Permissible Use. (w) "Survey." A current survey of the Property prepared by a registered Florida professional land surveyor meeting the requirements of this Agreement. (x) "Title Binder" or "Title Commitment." A title insurance commitment issued by the Title Company committing the Title Company to issue the Title Policy to Burnham upon recording of the deed to Burnham, together with digital, electronic or hard . copies of all exceptions referred to therein. The Title Binder will list as exceptions to title only the Permitted Exceptions and the Liens. (y) "Title Company," First American Title Insurance Company, a California corporation. Burnham acknowledges that it has been informed that the Closing Agent is an authorized agent for the Title Company. (z) "Title Defect." Matters which either (i) adversely affect the marketability of title to the Property (to be determined by Burnham applying standards customary in the industry for determining marketability), or (ii) substantially, adversely affect the ability of Burnham y the Property for the Permissible Use (to be determined by Burnham applying reasonable standards), but specifically excluding the Permitted Exceptions and the Liens (defined below). For purposes of this Agreement, the term "Title Defect" will refer to one or more matters affecting title to the Property as the context requires, Any matter appearing in the Public Records solely because of actions or omissions of Burnham, or its agents or contractors, will not be deemed a Title Defect for purposes of this Agreement. For purposes of this Agreement, a "Title Defect" will not include any mortgages encumbering the Property or other monetary liens or encumbrances created by or through LNLC that LNLC will remove at Closing (the "Liens "). It is specifically understood and agreed that LNLC will cause the removal, correction or deletion of (i) all standard exceptions set forth in the Title Commitment (subject to a survey reading), and (ii) any gap, overlap, boundary dispute, hiatus or encroachment identified on the Survey which affects the Property or any adjacent properties, and (iii) the Liens. At Closing, LNLC shall provide the Title Company with such affidavits or other documents as are necessary to enable the Title Company to delete the Liens and the matters set forth in items (i), (ii) and/or (iii) herein and the Title Company shall provide Burnham a marked -up Title Commitment. -a- oRLMF- ALE87187MV-V 91762/0028 DHJ dhJ 2/2272007 6.34 AM (aa) "Title Policy." The ALTA Form `B" 1992 (10- 17 -92) owner's policy of title insurance to be issued by the Title Company upon recording of the deed to Burnham and paid for as a Project Cost. The Title Policy will be in the amount of $10,260,000,00 and will insure the title of the Property, subject only to the Permitted Exceptions,-and other matters acceptable to Burnham. (bb) "Wetlands Permits." Those permits now or hereafter issued by the Army Corps of Engineers and the South Florida Water Management District necessary to allow LNLC, at LNLC's expense, to cause any wetlands to be mitigated and removed from the Property as provided herein so that no wetlands.remain within the Property. AGREEMENT NOW THEREFORE, for and in consideration of the premises hereof, the mutual covenants herein contained and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, LNLC and Burnham hereby covenant, stipulate and agree that the foregoing recitals are true and correct and are incorporated herein by this reference and further covenant, stipulate and agree as follows: 1. Agreement to Donate and Accept. LNLC hereby agrees to. irrevocably donate and convey the Property to Burnham, and Burnham hereby agrees to accept the Property from LNLC, upon the terms and subject to the conditions set forth in this Agreement and the Local _ Agreements. { 2. Inspection of Property. Prior to Closing, LNLC agrees that Burnham and/or its representatives or agents, upon reasonable prior written notice to LNLC in each instance, shall have the right to enter onto the Property for purposes of performing surveys, soils borings, engineering, architectural, topographical, economic and any other work, studies or tests, at Burnham's sole cost and expense, so long as Burnham does not change the present character of the Property. Prior to Closing, LNLC, at its election, may .accompany Burnham and/or its representatives or agents, in connection with their entry upon the Property. Prior to entry upon the Property, Burnham shall provide LNLC with a liability insurance policy in the amount of $1,000,000 or more and with a company satisfactory to LNLC which names LNLC as an additional insured and which cannot be cancelled without thirty (30) days' prior written notice to LNLC. The right of inspection will terminate immediately if the insurance policy or this Agreement is terminated. Burnham shall repair any damage to the Property caused in connection with Burnham's or its agents' entries and shall indemnify and hold harmless LNLC from and against, and shall reimburse LNLC for, any loss, cost, damage, claim or expense arising from or as a result of Burnham, its agents or invitees being on the Property, or the undertaking of any such work, tests or studies, pursuant to the rights granted under this paragraph (`Burnham's Indemnity Obligations "). Burnham's Indemnity Obligations shall not extend to any loss, cost, damage, claim or expense resulting from (i) the intentional acts or gross negligence of LNLC or its agents or employees, or (ii) existing conditions located on the Property (e.g. hazardous wastes), but shall survive Closing under, and the termination of, this Agreement. Burnham -5- O RLI IREALES 7%877939.9 317ti UMO DHJ dhJ 2MZQ 07 834 AM 0 1 covenants and agrees that if this transaction does not close for any reason (other than LNLC's default hereunder), Burnham shall provide to LNLC, without any cost to LNLC, copies of all Due Diligence Materials, and Burnham shall assign and release to LNLC, without recourse or warranty or cost to Burnham; any and all rights of Burnham, in and to all permits and approvals for the Property, the work product produced in connection therewith, and all such Due Diligence Materials. Burnham shall promptly pay or satisfy all invoices related to the services or materials provided in connection with its investigation of the Property. The immediately preceding four sentences of this provision will survive any termination of this Agreement. 3. Development Matters. a. LNLC's Obligations. LNLC shall perform or cause to be performed the following obligations ( LNLC's Obligations "): (i) Abutting Road oad S_s and Other Road Improvements. (1) Abutting Road Sv iris. LNLC, subject to reimbursement by Burnham as a Development Cost, shall cause the design, permitting, construction, installation of the Abutting Road System in accordance with the Approved Mash' Plan. The Abutting Road System shall be constructed in accordance with the applicable roadway construction standards of the City, and in accordance with the City's standard procedures shall be dedicated to the City as' soon as possible after completion. The parties acknowledge that LNLC may convey the Abutting Road System to the Boggy Creek CDD prior to it being dedicated to the City, but that the obligationrin this section shall notbe satisfied until the Abutting Road System is dedicated to and accepted by the City. LNLC shall provide.; all bonds/security for the Abutting Road System required by the City for public roadways as a Development Cost. Acknowledging that the Abutting Road System will not have been completed at the time of Closing and the enhanced value to the Property associated with the completion of same, and in order to facilitate the development of thu'Research Facilities and recognize such value, LNLC sball.reserve, subject to'Bumham's review and approval which shall not be withheld if such easements are either consistent with the Approved Master Plan or otherwise do not materially and adversely affect the Property, the appropriate non - exclusive easements for access, utilities and drainage for the benefit of Lake Nona South, over, under and across the property comprising the Abutting Road System and the property adjacent thereto, and LNLC shall reserve, or Burnham shall grant to LNLC, as long, as the locations of same do not conflict with the Approved Master Plan, temporary construction easements sufficient to allow LNLC to perform its obligations set forth herein, all consistent with the Approved Master Plan and the SPMP and in a manner that will not materially and adversely interfere with the Research Facilities. Burnham agrees to reasonably cooperate and join in the execution of all temporary easements, plats and instruments reasonably required as contemplated herein. 10 WUIREALESW77039.4 31781!0028 DW dN 2221=7 8:34 AM (2) Other Road Immovem nests. LNLC, at its cost and without charge to Burnham through the Boggy Creek CDD (or other CDD), shall complete the following two items, which the Parties acknowledge are not located within or adjacent to the Burnham Campus: (a) the extension of Lake Nona Boulevard to its point of connection with the Entry Road System (as defined in the Gift Agreement (Permanent Facilities)), which shall be a public right -of way; and (b) the Interchange (collectively,.the "Road Improvements'). The parties acknowledge that LNLC has not yet determined how it will satisfy the foregoing requirement, but that it is considering satisfying assessments, by prepayment or contribution of infrastructure, for the capital costs of the Road Improvements to the CDD in amounts sufficient to release the Property from any future assessments therefor and/or making all future assessments against the Property for the capital costs of Road Improvements as and when such assessments come due without benefit of repayment from Burnham. LNLC shall beep Burnham informed as to how it intends to satisfy this requirement and provide Burnham with documentation evideandng.LNLC's final determination with respect thereto. In addition, LNLC shall promptly provide Burnham with copies of the CDD's preliminary assessment methodology, assessment calculations, and notice of assessment proceedings for the Road Improvements. Burnham shall promptly provide LNLC with copies of any correspondence it receives from the CDD with regard to capital assessments for the Road Improvements. LNLC shall indemnify, defend and hold Burnham harmless from and against any claims made by the. Boggy Creels CDD (or other CDD) -for any assessment and/or claim, including interest, fines and penalties, for or in relation to- CDD capital assessments for the Road Improvements. Notwithstanding anything to the contrary in Section 15(e). herein, Burnham shall have the right to pursue damages against LNLC in an amount equal to the assessments LNLC should have paid in connection with the foregoing obligation and indemnity, together with interest at the prevailing statutory rate. The provisions of this subparagraph shall survive Closing and shall be incorporated into the Development Agreement. (ii) Master Utility Infrastructure. In connection with the construction of the Abutting Road System, LNLC, subject to reimbursement by Burnham as a Development Cost, shall cause the design, permiting, construction and installation of the Master Utility Infrastructure. At the time of Closing and thereafter, Burnham shall grant to LNLC and/or the appropriate utility provider (which shall include any Provider selected by.LNLC in accordance with Section 3(k) herein), as long as the location of same do not conflict with the Approved Master Plan, easements, in areas consistent with the Approved Master Plan and in a manner that will not materially and adversely interfere with the Research Facilities, sufficient to allow LNLC and /or the appropriate utility provider to perform its obligations or provide the services contemplated herein for the completion of the Master Utilities Infrastructure. -7- ORL1%REALE8T877 3V-Q 31 T62=2E DHJ dq 4171sT 8:34 AM I 9.0 (iii) Master.-Drainage System. LNLC, subject to reimbursement by Burnham as a Development Cost (but only to the extent actually required to develop the Property for the Intended Use and not the costs of any oversizing benefiting properties other than the Property), shall cause the design, permitting, construction, and installation of a fully functional master drainage system with appurtenant facilities for the Property ( "Master Drainage System') which shall be integrated into the master drainage system for Lake Nona South, The Master Drainage System may require the Property to accommodate storm water flowage (but not retention or detention unless requested by Burnham) from Labe Nona South through the Property (and may require the other portions of Lake Nona South to accommodate stone water flowage from the Property through other portions of Lake Nona South), in accordance with applicable permits and approvals and in a manner that is consistent with the Approved Master Plan or otherwise_ does not materially and adversely affect the Research Facilities or the Property. Acknowledging that the Master Drainage System will not have been completed at the time of Closing and the enhanced value to the Property associated with the completion of same, and in order to facilitate the development of the Research Facilities and recognize such value, Burnham agrees to cooperate with LNLC, in connection with the design, permitting and construction of the Master Drainage System, which obligation shall continue following Closing. As necessary and in accordance with the foregoing, Burnham shall grant to LNLC, as long as the location of same does not conflict with the Approved Master Plan, easements, that are consistent with the Approved Master Plan or as otherwise reasonably determined by LNLC not to materially and adversely interfere with the Research Facilities, sufficient to allow LNLC to perform its obligations set forth herein in order to complete the Master Drainage System and enhance • the value of the Property. To the extent storm water drainage from the Property is to be held off-site, LNLC shall grant Burnham, subject to reimbursement as a Development Cost, such easements as are required to provide sufficient capacity to aceonunodate all flowage and retenhon/detention related to the Research Facilities on the Property in the minimum amount required by applicable development permits for the Intended Use, (iv) Klass Grading. LNLC, subject to reimbursement by Burnham as a Development Cost, shall be required to cause the mass grading of the Property in accordance with the mass grading standards as set forth in Exhibit 113.a.(W)" attached hereto and incorporated herein by this reference, which shall include completion of LNLC's Obligations with respect to the Gopher Permit (as defined below). Acknowledging that the mass grading of the Property may not have been completed at the time of Closing and the enhanced value to the Property associated with the completion of same, and in order to facilitate the development of the Research Facilities on the Property and recognize such value, Burnham agrees- to cooperate with LNLC, in connection with the foregoing mass grading, which obligation shall continue following Closing. As necessary and in accordance with the foregoing, Burnham shall grant to LNLC, as long as the -8- ORLMEALES11 M3Y.G 3170=020 OHJ dhJ V2212WI 6:34 AM 1 0 VTIII location of same do not conflict with the Approved. Master .Plan, temporary easements, that are consistent with the Approved Master Plan or that otherwise do not materially and adversely affect the Research Facilities or the Property, suincient to allow LNLC to perform its obligations set forth herein to complete the mass grading of the Property, (v) 100 Year Flood Plain/Commens ry Storage. If and to the extent any portion of the Property lies beneath the "100 Year Flood Plain" and any portion thereof is required to be filled in connection with the development of the Research Facilities on the Property, LNLC shall provide within Lake Nona South or other property within the Lake Nona Development owned by LNLC or its affiliates, at LNLC's expense, any off-site compensating storage required by any applicable permitting agency, provided however, that there shall be no charge to Burnam. (vi) G nher Tortoise Administra 'on. LNLC, at its expense, shall be required to obtain any necessary gopher tortoise take and/or relocation permit from the Florida Fish and Wildlife Conservation Commission (the "Gopher Permit') that may be inquired in connection with Burnham's development of the Research Facilities in accordance with the Approved Master Plan, and shall perform all mitigation and other legal requiremients required* thereunder, all in accordance with the Gopher Permit. (vii) Ae&ands . LNLC shall obtain the Wetlands Permits. LNLC shall at all times during performance of its obligations hereunder comply with the terms of the existing permits from both agencies for the Property, except where such failure of compliance would not have a material and adverse effect, and alien take no action which could be reasonably be foreseen to result in a change of wetland status for the Property. Burnham agrees to convey such easements as maybe to necessary in order to allow LNLC to remove the wetlands within the Property and access and maintain the Primary Conservation Network (as defined in the Southeast Orlando Sector Plan) adjacent to the Property, consistent with the Approved Master Plan or as otherwise reasonably determined not to materially and adversely interfere with the Project, 'The provisions of this paragraph survive Closing hereunder. (viii) Plat VOoyal, Commencing a Effective diligeDtly prepare, , process t a d reimbursement as a Developmen t Cost, shall pursue approval of a plat for the Property. The Parties acknowledge that the Property will be conveyed to Burnham prior to recording of the plat. 1n connection with the recording of the plat, LNLC and umba steps jest are reimbursement as a Development Cost, each agree t executing the final necessary to: (a) cause the recording of the plat, including by conveyed ed version thereof; and (b) correct minor deviations between the property Y to Burnham at the Closing hereunder and the lot created by the plat for the but not limited Propert, sure that Burnh mtowns all of (but notbmoretdm) platted as required _g_ ORLIMALEST1 IGN.D a17e=02a DHJ Od 2r4= 7 8".34 AM lot. In order to facilitate the foregoing, LNLC shall promptly provide Burnham with drafts of the plat during the development process, After recording of the plat and completion of correctional items in accordance with the foregoing sentence, the legal description for the Property shall be, for all purposes hereunder and under the Local Agreements, by reference to the lot on the recorded plat. (ix) Off -Site Improvements. LNLC, at its cost, shall timely complete all other obligations, including off -site obligations, under the Development Order (other than any site specific obligations relating to the Research Facilities which are not otherwise included within LNLC's Obligations) as and when required so as not to delay completion of the Research Facilities, Subject to the foregoing provisions, BurnIum acknowledges that following Closing, Burnham, at its expense, shall be responsible for all other permits and approvals required for, and for the undertaking and completion of, any development or construction related to the Project upon the Property. The parties acknowledge and agree that they will work together with respect to the timing and completion of the foregoing matters in order to meet Burnham's requirements for the development of the Properly, which the parties anticipate will commence within the three years following the issuance of the CO for the Permanent Facilities, The parties anticipate that all or a portion of the Abutting Road System, the Master Utility biftwtructure and the Master Drainage System will be constructed by LNLC and be submitted to the Boggy Creek CDD for acquisition, or constructed by the Boggy Creek CDD directly. Alternatively, should Burnham require the foregoing to be completed prior to LNLC's or the Boggy Creek CDD's commencement of such work, Burnham may commence and complete such work at its cost and shall. have the right to seek to have the Boggy Creek CDD acquire "the components from Burnham. Burnham shall not be required to fund its prorata share of the cost of the applicable LNLC's Obligations (excluding those obligation specifically identified as being performed at LNLC's expense) until the earlier of (i) Burnham's commencement of development on the Property, with such prorata share being based upon the benefited acreage within. the Boggy Creek CDD consistent with a typical CDD assessment methodology, or (ii) the imposition of the CDD assessments. The provisions of this paragraph shall survive Closing hereunder. b. - A.ssi=mt of Obligations. Notwithstanding anything contained herein to the contrary, LNLC shall have the unilateral right, but not the obligation, to assign any or all of LNLC's Obligations to the Master Association and/or the Boggy Creek CDD and/or another community development district; provided, that no material additional cost is charged to or incurred by Burnham as a result of such assignment; provided further, LNLC shall not be relieved of the obligations associated therewith until Substantial Completion of the particular element of LNLC's Obligations and receipt of the applicable certificate of completion with respect to the particular phase of the respective obligation has been achieved and the applicable improvements have been dedicated to and accepted by the City, the Boggy Creek CDD or any other applicable governmental entity as a result of such assignment, -10- ORLI IRSALOT\877939.9 3178WMS DHJ n y2�/ZDD? 8•.S4 AM 1� 9' C. Survival. Notwithstanding any provision to the contrary herein, to the extent LNLC's Obligations shall not have been satisfied at Closing, said LNLC Obligations shall survive Closing hereunder until the acceptance by the applicable governmental authority of the specific component, as applicable. d, Tra �portaton Imnaet Fee Credits. Burnham acknowledges and agrees that any and all Transportation Impact Fee Credits for the Road Improvements shall be allocable solely by LNLC for the benefit of the Lake Nona Development. LNLC may enter into an agreement with the City of Orlando that permits LNLC to allocate such credits in LNLC's sole discretion. In the event additional Transportation Impact Fee Credits are generated from improvements that are paid as Development Cost, Burnham shall be entitled to the benefit of such credits to the extent of amounts paid by Burnham. Except as specifically provided in the preceding sentence, neither Burnham, act Fee successors redits that may be generated in connection with the Lake Nona Transportation Imp Development. C. Provision of Natural Gas S-MaM Acknowledging that the provision of natural gas services will be beneficial and necessary for the development of the Property and recognizing that it will bring value to the Property, Burnham acknowledges and agrees that LNLC may enter in to an agreement with Tampa Electric Co. ( "TECO ") or another natural gas service pfgvid.er (the "Cam Provider"), upon commercially reasonable terms, pursuant to which all development within the Property and the Research Park may be restricted from utilizing natural gas as an energy source other than through the Gas Provider. The provisions of this paragraph shall survive Closing hereunder and be incorporated into the Development Agreement. f. Street Names.. Burnham acknowledges and agrees that LNLC shall have the ' the exclusive right to name all of the public streets adjoining or .providing access t prior from of Property, and LNLC agrees that Burnham, as a fund raising too LNLC (not to be unreasonably withheld), shall have the right to name those streets providing - internal connectivity within the Property. This obligation shall be included in the Development Agreement. The provisions of this paragraph shall survive Closing hereunder. g. Impact Fees. In the event Burnham is required to pay any Impact Fees for the development of the Property, prior to payment therefor Burnham shall notify LNLC, and to the extent that LNLC bas credits for such Impact Fees ("impact Fee Credits', at LNLC 'S election, Burnham shall be required to purchase such Impact Fee Credits from INLCi Provided, Burnham shall only be required to purchase such impact Fees Credits at the then current rate for the applicable Impact Fees charged by the City and LNLC shall be required to provide Burnham with evidence of the establishment of the right to assign, and assignment oi; the corresponding Impact Fee Credits to Burnham in connection with Burnham's payment therefor, I Bnti.tleme.�ts. If at the time Burnham desires to commence development of the Property and such development is imminent and probable, Burnham needs Entitlements and LNLC owns excess, uncommitted Entitlements or is willing to pursue an amendment to the Development Order to secure such additional Entitlements, Burnham shall Pay to purchase the Entitlements from LNLC based upon the cost allocated thereto as reasonably determined by -11- 3J782MU WJ � u�r 8 :34 any LNLC. The parties shall cooperate in connection with the pursuit of Entitlements for the Property; provided, LNLC shall not suffer any Material and/or .Adverse Effects to the existing entitlements, mitigation, capacity and/or vesting of the Lake Nona Development of Regional Impact or PD due to the pursuit of Entitlements or development of the Property. i. Community Deyelo meng t I'ristrict. (i) Generally. The Boggy Creek CDD, which district is a Community Development District pursuant to the provisions of Chapter 190, Florida Statutes, was established for the purpose of planning, designing, financing, constructing, installing, operating, and/or maintaining certain infrastructure, including water management systems, transportation and roadway improvements, landscaping, drainage facilities, potable water and sanitary sewer facilities, wetland mitigation, recreation and other infrastructure improvements within or without the boundaries of the Boggy Creek CDD, and such other purposes as maybe permitted in accordance with Chapter• 190, all as same may be amended from time to time, with the right to levy assessments in accordance with Sections 190.021 and 190.022, Florida Statutes (whether collected by County as part of its tax roll by ordinance or by the Boggy Creek CDD directly). Subject to the provisions of subsections (ii) and (iii) below, all or any portion of LNLC's Obligations hereunder (including the design, engineering and construction activities included therein), as well as other infrastructure facilities within the Lake Nona Development; and the ongoing operation and maintenance of all such facilities, whether constructed or to beoperated co d by or on behalf of LNLC, may be financed, constructed, �1� maintained by the Boggy Creek CDD. The parties acknowledge that the Boggy Creek CDD will have the power to levy and collect assessments against any portion of the Property subject to and in accordance with Chapters 170 and 190, Florida Statutes in order to pay the cost thereof (plus debt service, reserves and other costs related to obtaining the financing); Burnham hereby agrees to accept the foregoing CDD assessments and execute any documents reasonably required by the CDD to acknowledge such acceptance. In addition, any lien rights shall be on a par with, ad valorem taxes and assessments levied by the County, the City or other governmental authority. Notwithstanding the foregoing, the parties acknowledge and agree that LNLC has assumed the obligations with respect to the Road Improvements. Subject to Section 3.b. herein, Burnham and LNLC acknowledge and agree that the Boggy Creek CDD governing board may enter into agreements with LNLC to acquire infrastructure facilities and lands from LNLC based upon actual costs previously or subsequently funded by LNLC or appraised value in accordance with Chapter 190, Florida Statutes. (ii) CDD Estimate. While recognizing that the CDD has not issued capital assessment bonds or made any current findings with regard to the anticipated amounts of future capital assessments, LNLC, as of the date hereof, has estimated that the improvements reasonably necessary to complete the project infrastructure required within the Boggy Creek CDD district are contained in the assumed capital improvement program attached hereto as Exhibit "31(ii)" and incorporated herein by this reference (the "CIFI). LNLC, as of the date hereof, has estimated that the construction funds -12- 0RLJVW -ALES MTM9.6 317621002E DHJ de) 2==7 e:34 AM 9B reasonably necessary to complete CIP is approximately One Hundred Thirty Million and No /100 Dollars ($130,000,000.00) (the "Total CIP Estlma0te' s, f whir aPl h aYd Forty -Two Million and No /100 Dollars ($42,000,000-00) Ei t Million Improvements, leaving an adjusted CIP ��� "Adjusted CIP Estimate'}. Based upon the and No /100 Dollars ($88,000,000.00) ( d,� Adjusted CIP Estimate, the-present value of the future CDD capital assessments allocable to the Property, based upon acreage, is approximately Five Million Three Hundred Six r Thousand Two Hundred Forty -Three and No /100 Dollars ($5,306,243.00) (the "CDD EstUnate'�. Notwithstanding the foregoing estimates, the parties acknowledge and agree that any bond offering to finance these costs will be grossed up to allow for the cost y E issuance and debt service, Burnham LNLC promptly provide LC with copies of any correspondence it receives from the CDD with regard to capital assessments on the Property. The provisions of this subparagraph shall survive closing and shall be } incorporated into the Development Agreement. (iii) Loan. Burnham shall have the option of having LNLC finance all or a portion of its obligations for the ' CDD capital assessments; provided, Burnham must provide LNLC with written notice of its election to do so not less than thirty (30) days after Burnham receives the first tax bill containing the initial CDD capital assessment for the Property (other than , capital assessments for the Road Improvements) (`Burnham's CDD Election" ). The initial closing of the Loan (ae deSned below) shall oc=. no later than ninety (90) days after LNLC's receipt of Burnham,s CDD Election. Following delivery of Burnham,8 CDD Election, both Burnham and LNLC shall negotiate in good faith the terms of the loan documents so that the execution and funding thereunder can occur in a timely fashion in order for LNLC to make any required CCDI D capital assessment for the Property prior to delinquency. Burnham shall promptly provide _ _ to capital- assessments. with copies of any correspondence it receives from the CDD with regard for Provided Burnham has duly elected to have LNLC finance all or any po rtion its obligations the CAD assessments as provided herein, LNLC agrees to pay such CDD capital assessments based upon the CIP as and when such assessments are due, which amounts shall be in the form of a loan to Burnham (the "Loan ") on the terms more particularly set forth qty ag Bement Lvan shall be evidenced by a.promissory note, a first priority mortgage against the Surplus Land (subject only to the Permitted Exceptions and other matters approved by LN he to be recorded at the time of the closing thereunder, and other commercially reasonable documents (the "Loan Documents "), which Loan Documents shall contain the following provisions: (a) provide for interest on the Loan amount at the rate of two peen (2 %) per annum compounded quarterly; (b) be repaid in full no later than the earlier of (i) years after the last day for payment (prior to delinquency) of the first CDD capital assessments against the Property for any capital costs other than for the Road Improvements, or (ii) the date upon which all or any portion of the Surplus Land is sold or developed (a evidenced LC to the issuance of a building permit); (c) allow for prepayment without penalty; () require to develop the join in and consent to such plats and easements as may be reasonably necessary e for he payment by Surplus Land consistent with the requirements of this Agreement; () pro Burnham of documentary stamp taxes and intangible taxes on the Loan amount as and when such payments are made, which Burnham acknowledges may require the recording of annual notices of future advance as required by Florida law; (f) shall not require a lender's policy of title -13- ORLJ%REALEM77939.0 V7620028 DHJ dN 2J2 DD7 OM AM 9- B insurance; (g) require LNLC to indemnify Burnham from and against any claims, losses or damages for failure to pay CDD capital assessments covered by the Loan in accordance with section 310i) above, including, but not limited to, costs (including attorney's fees) and additional interest expense as a result of a tax certificate sale, tax deed sale or a foreclosure action pertaining to the Property; (h) shall be non - recourse to Burnham; (i) shall contain a default interest rate equal to the statutory rate; 0) shall include all loan related costs as part of the principal amount due (excluding attorney fees incurred in connection with the negotiation of the Loan Documents); and (k). contain other commercially reasonable and standard terms as mutually agreed upon by Burnham and LNLC. In addition, LNLC shall promptly provide Burnham with copies of all correspondence containing proposed or actual CDD assessment methodology, assessment calculations, or assessment proceedings. The provisions of this subparagraph shall survive Closing and shall be incorporated into the Development Agreement. _(iv) purnham's Rights. Burnham shall have the right, but not the obligation, to communicate with and appear in front of the applicable CDD for purposes of reviewing, commenting on and/or objecting to any CIP assessment methodology, assessment calculations and/or assessment proceedings, subject to and in accordance with all applicable law. (v) T—ernrgm Construction Easements. Burnham agrees to grant such temporary construction easements as may be reasonably necessary to allow LNLC, the CDD or LNLC or its affiliate on behalf of the CDD to complete the CIP. (vi) The parties acknowledge that the Property shall be subject to the lien of the assessments on the Property for the CDD; provided, that such lien . shall not affect the contractual obligations provided herein, to the extent applicable. j. NgmiU Ri ts. As a material inducement to LNLC to enter into this Agreement, Burnham hereby agrees to name the Research Facilities on the Property to at Lake Nona" or such other name as Burnham may determine so long as the name "Lake Nona" remains a part of the name, subject to obtaining LNLC's prior written approval, not to be unreasonably withheld or delayed (the "Project Name'. Burnham may add reference to the name of any donor who provides funding for any part of the Research Facilities on the Property, subject to LNLC's prior written approval, not to be unseasonably withheld. Additionally, the following shall apply: (i) The Project Name will appear on all written material prepared by the Burnham relating to Burnham's operation of the Research Facilities at the Property, including, without limitation, scientific publications, signs, stationery, and business cards used by Burnham in the conduct of its business at the Property, The Parties shall use their best efforts to assure that all references to Burnham's operation of the Research Facilities at the Property shall use the foregoing full names, including, but not. limited to, all references to the Project in media, advertisements, brochures and other information made available to the public. In addition, as appropriate, Burnham will include a statement in such materials that the Research Facilities on the Property are in the Research Park at Lake Nona or the Lake Nona Development. -14- ORLMEALESM779W.9 3176210026 OW dN 2137J20D7 6:34 AM M All automated answering systems, voice mail systems and manually answered telephone switchboards operated by Burnham at the Research Facilities on the Property shall use the Project Name. (iii) Appropriate temporary and permanent signs will 'be placed on the Property and buildings thereon, to reflect the Prejsot Name. (iv) Public recognition for the donation of the Property shall be attributed to the Tavi.stook Foundation, unless otherwise directed by the Tavistock Foundation. (v) All public announcements relating to the donation of the Property will be made only as may be agreed upon jointly by the Parties and Burnham. (vi) Burnham specifically understands and agrees that although the "Lake Nona" name and the , Tavistode, name may be used by Burnham in the Mannar contemplated by this Agreement and in other reasonable ways consistent with the intentions of the Parties as evidenced hereby, nothing herein shall be construed as granting Burnham the right to sublicense the "Lake Nona" name or the 7avlstock" name, or the right to convey the "Lake Nona" name or the "Tavistoek" name to others without prior written consent of Lake Nona or Tavistock, as applicable, at such Party's sole discretion. (vii) Exoept as provided herein and in connection with the identification of the Burnham Campus, LNLC specifically understands and agrees that nothing herein shall be construed as granting LNLC any right to use the "Burnam h" or "Burnham Institute for Medical Research" or "BIlvIR' names, except with the prior written consent of Burnham, not to be unreasonably withheld. The foregoing obligation shall be included in the Development Agreement. this paragraph shall survive Closing hereunder. As a material inducement to LNLC to enter into this grant and oonvey to LNPH the "ComnunicRtion The provisions of k. ('0 ica .0ns Rim., Agreement, Burnham hereby agrees to Riiahts ", as follows: i, peterminatr_ nom. and Selection of eider. Subject to the terms of this Agreement, LNPH shall have the exclusive right to select and determine which Providers will be permitted to provide Communications Services on or to the Property (including any portions thereof or any buildings or portions of buildings thereon, or to any persons residing or otherwise utilizing the Property, or any portion thereof or any buildings or any portions of buildings thereon), and the terms and conditions relating thereto for a period of twenty (20) years after the date of issuance of a CO for each applicable building constructed thereon. Subject to the terms of this Agreement, LNPH will negotiate and finalize the Communications Agreements concerning, governing, or relating to the nding provision of Communications Service selected by LNPH, each of which hsshall be Bbinham and enforceable against the Property and may require execution by agrees that LNPH shall have the right to determine the terms and conditions of any and -15- oRnr esne�n39.9 31782/0026 = ehl 2/2212007 8:81 AM all Communications Agreements for Communications Services selected by LNPH (subject to the terms and conditions contained herein), including, without limitation, the length of the term; the terms and conditions of any easements and recordation rights; the types of Communications Services (provided, other than voice, basic cable, internet and security monitoring which may be "bundled," LNLC shall use its best efforts to ensure that Burnham shall not be required to pay for any such services that will not be used by Burnham, but with Burnham recognizing that services are often "bundled" by providers), the type of pricing and packaging for the Communications Services; obligations with respect to purchasing, installing and maintaining the wiring, equipment and facilities, including any obligations Burnham may have in this regard; the extent to which Provider will have the right to construct structures on the Property necessary or desirable to locate some of their equipment, wiring and other facilities (subject to Burnham's review and approval, not to be unreasonably withheld) which serve the Property exclusively. Notwithstanding the foregoing, such Communications Agreements shall: (i) contain rates and service standards and. have "stato-of- the -art" quality and capabilities that are competitive with end -user market rates, service standards, quality and capabilities for the Communications Services provided to other commercial properties within the Central Florida area; (ii) require the Provider to perform all construction and maintenance work in connection with its facilities on the Property in a good, orderly and workmanlike manner; in accordance with good engineering practice, including bonding and insurance and indemnification of Burnham for Provider's negligence as reasonably approved by Burnham; (iii) Provider shall be prohibited from installing or operating any of its facilities in any manner that will materially and adversely affect the buildings constructed upon the Property, the Property, the Permissible Use on the Property and /or the Approved Master Plan; (iv) include all am -Aces required by Burnham for the buildings constructed thereon or allow Burnham to obtain such services elsewhere; and (v) not require payment for services until final completion of the applicable building thereon. Burnham agrees to abide by, and comply with, all of the terms and conditions of each Communications Agreement throughout the term of such Communication Agreements. If the Communication Services selected by LNPH do not meet the foregoing criteria, Burnham may supplement such Communication Services with additional Communication Services with LNPH's prior written consent. In addition, notwithstanding anything to the contrary herein, with LNPH's prior written consent (not to be unreasonably withheld), Burnham may supplement the Communication Services selected by LNPH with additional Communication Services to the extent that Burnham's operations on the Property require Communication Services that are not available through the Communication Services selected by LNPH and with additional Communication Services for use with University of Florida, University of Central Florida, Bumbam's La Jolla facilities or any other research institution with whom Bumham does business. Subject to the foregoing, Burnham may enter into Communications Agreements for such supplemental Communications Services. In addition, the foregoing shall not restrict (i) video conferencing over the internet, (ii) internet streaming, (iii) voice over IP, which will be permitted between Burnham employees within the Burnham Campus or between Burnham employees when used for site to site communication, or entering into Communication Agreements with respect thereto; (iv) Communication Agreements with -16- ORLITOR ESM7709.s 81782!0028 DW my 2122=184 AM • ■ VALI the University of Central Florida or the University of Florida for Internet2, Florida LambdaRail or such other similar restricted high-speed educational research network sources, or (v) Burnham's ability to specify its customer premises equipment for connection to and compatible with the Provider's equipment. i Prohibited mAgemems. Excep t as otherwie permitted in this Agreement, Burnham shall have no right to enter into, or permit, and will specifically prohibit, any person or party other than LNPH to enter into, any oral or " written agreement, easement, license, lease or other arrangement of any type (collectively referred to as "Prohibited Agreements or Arrangements) for the purpose of or that r will have the effect of, permitting any person or party to provide any Communications Service on or to the Property, or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing in or otherwise utilizing the ! Property, or any portion thereof or any buildings or any portions of buildings thereon, and any and all Prolu'bited Agreements or Arrangements will be null and void, and of no force and effect. If Burnham is required by applicable law to permit a Person to provide Communications Services on or to the Property in contravention of the foregoing, Burnham shall Only permit such Person to provide Communications Services to the extent required by such applicable law. For example, if the applicable law requires that a Person be permitted to provide cable services to. the Property but has no similar requirement for telephone service, the Person shall not be permitted to provide telephone service to the Property. iii. lVlennoriali ation of MMMUi ors Rim. The provisions of this section shall survive Closing hereunder and shall be incorporated into the Development Agreement at the time of Closing. 4. Title. a. LNLC shall deliver to Burnham, within twenty (20) days after the Effective Date, the Title Binder. The Title Binder shall evidenca that upon (i) the execution, delivery and recordation of the Special Warranty Deed to be delivered by LNLC.to Burtiham pursuant to the provisions of this Agreement and (ii) the release and/or discharge of the Liens on or before Closing, Burnham shall acquire marketable fee simple. title to the Property subject only to the Permitted Exceptions. The Title Policy shall be delivered to Burnham, at LNLC's expense, within thirty (30) days after the Closing in accordance with the terms of this Agreement. b. If Burnham shall determine that the Title Binder discloses Title Defects, Burnham may so notify LNLC of that fact not later than ten (] 0) days after delivery of the Title Binder. Any such written notice to LNLC shall identify and specify the Title Defects, togeth ew with action Burnham believes would be required to eliminate same. Burnharnn hee dbthapBurnham acknowledges that it has reviewed and accepted the Permitted Exceptions shall take title to the Property subject to the Permitted Exceptions. c. In the event the Title Binder discloses any Title Defects and Burnham timely delivers written notice to LNLC of the existence of any Title Defects, LNLC shall have thirty -17- ORLIIREALESTI877Y39.8 31782/0028 DHJ ON 2122=T 8*4 AM 0 1 A ■. / (30) days following its receipt of such written notice of the existence of such Title Defects (the "Curative Period's in which to use commercially reasonable, good faith, diligent and timely efforts to cure or eliminate the Title Defects specified in such written notice or to notify Burnham that it cannot cure or eliminate the Title Defects. If LNLC fails or refuses to cure or eliminate the specified Title Defects within the Curative Period, Burnham may elect to (i) cure the Title Defect within sixty (60) days of expiration of the Curative Period at its sole cost; (ii) waive the objections and proceed to Closing with title in its "as is" condition in accordance with the terms hereof', (iii) pursue equitable remedies against LNLC to remove the Title Defect; or (iv) request that LNLC provide an Alternative Site (defined below), which election shall be, made by providing written notice of such termination to LNLC within five (5) days after the expiration of the Curative Period (or five (5) days after BmDhwWB receipt of written notice from LNLC that LNLC cannot cure or eliminate such Title Defects, whichever is sooner). d. All matters set forth in the paragraph entitled "Conveyance of Title" below, and all matters revealed by the Title Binder and updates thereof which are not duly objected to by Burnham, or to which .objection is duly made but is waived, shall constitute "Permitted Exceptions" for purposes of this Agreement. In the event that a Title Defect cannot be cure is waived by for the Burnham, ham LNLC agrees to diligently and in good faith attempt Campus. within the Lake Nona Development (an "Alternative Site'). A proposed Alternative Site shall be subject to review and approval by Burnham. In the event the Parties agree on an Alternative Site, all periods of time hereunder shall be tolled for a reasonable time and the Parties shall proceed with performing this Agreement with references herein to the Property being deemed to refer to the Alternative Site. If the Parties are unable, after 60•days of making good faith efforts to agree to an Alternative Site for the Burnham Campus, then any Party shall have the right to terminate this Agreement. In the event of a tmmination pursuant to this section, all rights and obligations of the Parties hereunder shall thereupon cease and terminate, except for Burnham's Indemnity Obligations. 5. Survey. On or prior to ninety (90) days after the Effective Date, LNLC shall have obtained and delivered to Burnham, a. current survey of the Property prepared by a registered Florida professional land surveyor, as certified to LNLC, Burnham, the Title Company and Escrow Agent, that meets the Florida Minimum Technical Standards as established by the Board of Professional Surveyors and Mappers, as set forth in the Florida Administrative Code and depicting all matters shown on the Title Binder (the "Survey "). The Survey shall be in substantial accordance with Exhibit "5" attached hereto, provided however that the Parties acknowledge and agree to cooperate prior to Closing to refine and agree upon a final Survey, in an effort to create the most beneficial configuration possible to achieve the success of the overall Research Park. The Survey shall further certify the number of gross acres of land contained within the Property, the -flood zone of the Property and the "100 Year Flood Plain," and shall show the impact of all easements and other instruments identified as exceptions to title in the Title Binder. In the event that the Survey reveals any encroachments, gaps, overlaps, or encumbrances. which render title to the Property unmarketable and which are not Permitted Exceptions, then Burnham shall have the right to object to the same by providing written notice -18- 0"L1VtBAI WT1877G39A 31182/0028 DHJ dhj T12?/x007 834 AM 90 thereof to LNLC no later than ten (10) days after its receipt of the Survey, in which event the same shall be treated as Title Defects hereunder, Once the final configuration of the Property is determined based upon the Survey as approved by Burnham and LNLC, all .references in any documents associated herewith to the "Property„ shall be deemed to mean the Property as shown on the Survey. 6; Conveyance of Title. At the time of Closing hereunder, LNLC shall convey marketable fee simple interest and estate in and title to the Property to Burnham by Sp and Warranty Deed, free and clear of all hens, umbranccs, nsto title (tbe"Permitted whatsoever, save and except only for the following permitted excep Exceptions "): a. Ad valorem real property taxes for the. year of Closing and subsequent years, not yet due and payable, as applicable (provided that any such tax liability to the Closing shall remain the responsibility of LNLC).. b, All applicable land use and zoning regulations, ordinances of general application and the provisions of the Development Order, as the same may be amended from time to time. c, Matters deemed Permitted Exceptions pursuant to Section 7 hereof. d. The lien of assessments leviedby the MD on the Property. e, The Development Agreement. l f. The agreements, easements and other matters contemp lated herein. Those matters set forth on Exhibit "(r)" attached hereto and incorporated herein g, by this reference. 7. Closing Matters. a. Clo in . Provided all Conditions to Closing have 30 s after delivery of hereunder shall occur at 10:00 a.m. Eastern time no more than thirty( other place as the Parties the Survey, at the office of Escrow Agent, through the maila by the Parties in writing (the may agree, unless an extension of such date is otherwise agreed to "Closing Date'). si The satisfaction of the following conditions (the b, nditio to Precedent to the transfer "Conditions") must occur by the date specified and shall be a condition of the Property and the related matters to occur at Closing on e, Closing Date, as it may be extended, unless waived by the applicable party: i County, City, LNLC and Bumham, as applicable, shall have entered into the () Agreements (provided that the failure by Burnham or LNLC to enter into Local A any such agreement shall not constitute a failure to satisfy this Condition as to such Party), and the Local Agreements sball be in full force and effect, -19- ORl itttEplEg�97'939.2 ' B 3178210929 0t did 7122/200 �. e. EA-111 Burnham and the Office of Tourism, Trade and Economic Development shall have entered into the OTTED Agreement; all representation and warranties set forth in this Agreement,. the OTTED Agreement and the Local Agreements shall be true and correct in all material and respects as of the date of Closing and such agreements fox we in full f o de by effect (provided that -the failure of any representation Burnham or LNLC to be true and correct in all mate respects as of the date of Closing shall not constitute a failure to satisfy this Condition as to such Patty); (iv) at the time of.Closing, all obligations of the Parties provided in this Agreement that are to be satisfied as of the Closing shall have been satisfied or shall have occurred or shall have been waived by the other in writing or as otherwise provided in this Agreement; (v) at the time of Closing, there shall be no Title Defects or Burnham shall have waived (or be deemed to have waived) any Title Defects to which Burnham has duly objected hereunder if the same have not been cured or eliminated of record; and (vi) at the time of Closing, there is no litigation or administrative proceeding pending or threatened against or relating to this Agreement, the other Local Agreements, the Property or LNLC which would or.could materially and adversely affect the use of the Permanent Facilities for the Permissible Use. c, pcgtponeement. If one or more of the Conditions shall not have occurred or been satisfied, or expressly waived by Burnham or LNLC, as applicable, or by the teams of this Agreement on or before the Closing Date, as it may have been extended under Section 7 hereof, for any reason whatsoever, then either Party shall have the right to postpone the Closing Date, by providing written notice to the other Party, no less than ten (10) days prior to Closing, specifying the Condition(s) which has not occurred or been satisfied; provided, in no event shall Closing be postponed for more than one hundred and twenty (120) days. Any cure periods set forth in Section 4 and /or Sections 7.d. and 7.e. hereunder shall run within and not after the foregoing 120- day.period. In the event that Closing has not occurred by the end of the foregoing period, then any party shaU have the right to terminate this Agreement by providing written notice to the other Parties, following which all rights and obligations of the Parties hereunder shall cease and terminate, except for the Burnham Indemnity Obligations, d. Failure of LNLC to 54 ' Qonditin Cure. If Burnham provides notice of LNLC's failure to satisfy any Condition when required by Section 7.c. hereunder, then LNLC shall promptly, and in any event within thirty (30) days, use good faith, diligent and timely efforts to attempt to satisfy or cause the occurrence of the Conditions specified in the notice. If LNLC is able to so satisfy or cause the occurrence of such Condition within thirty ( ) days thereafter (or such -other applicable period agreed to by all Parties), then Closing shall occur on such thirtieth (30th) day (or other applicable date) or on the date otherwise agreed upon by the Parties, If LNLC does not or cannot satisfy or cause the occurrence of such Condition within _20_ ORl11REM.F.Si1677939.9 3178?Po028 DHJ d►d 2/2212007 $24 AM M0 1� 1� such thirty (30) day (or other applicable) period, then Burnham may: (i) waive its objections and proceed to Closing; (ii) pursue appropriate equitable remedies; (iii) if such failure is the result of a Title Defect, pursue the remedies set forth in Section 4 herein; or (iv) request that 'LNLC provide an Alternative Site in accordance with Section 4 herein; provided, Burnham shall have the option of waiving the Condition at any time and proceeding to Closing. a. Failure of Burnham to Satisfy Conditions; Cure. If LNLC so provides notice of Burnham's failure to satisfy any such Condition, then Burnham shall promptly, and in any event within thirty (30) days, use good faith, diligent and timely efforts to attempt to satisfy or cause the occurrence of the Conditions specified in the notice. If Burnham is able to so satisfy or cause the occurrence of such Condition within thirty (30) days thereafter (or such other applicable period agreed to by the Parties), then Closing shall occur on such thirtieth (30th) day (or other applicable date) or on the date otherwise agreed upon by the Parties. If Burnham does not or cannot satisfy or cause the occurrence of such Condition within such thirty (30) day (or other applicable) period, then LNLC may elect to; (i) waive its objections and proceed to Closing, or (ii) pursue appropriate equitable remedies; provided that LNLC shall have the option of waiving the Conditions at any time and proceeding to Closing. f. Pursuit of Satisfaction of Conditions. Each Party covenants that it shall in good faith, diligently and -timely pursue the satisfaction of tha Conditions. Closing hereunder shall constitute Burnham's and LNLC's acknowledgment. that all Conditions .have been satisfied or waived, g. osing, Costs d Other gUeense_s. At the time of Closing u nde�r this Agreement: (i) Burnham shall pay all of its due diligence expenses. i (ii) LNLC, subject to reimbursement as a Project Cost, shall pay all documentary stamp taxes required to be paid on and with respect to the Special Warranty Deed, all recording fees and all premiums for the Title Policy to be issued with respect to the property. Additionally, LNLC shall pay all Survey expenses. (iii) LNLC and Burnham each shall bear its own attorneys' fees, if any, with respect to Closing. h. Closing Documents. At Closing: (i) LNLC shall execute and deliver to Escrow Agent the Special Warranty Deed, together with an affidavit in form sufficient for deletion of the "gap" and the exceptions for mechanic's liens and parties in possession under the Title Binder, a closing statement, the Development Agreement and such other documents as may be required hereunder or as Burnham or Escrow Agent shall reasonably request. (ii) Burnham shall execute and deliver a Closing Statement, ee he Development lLNLC Agreement and such other documents as maybe require d or Escrow Agent may reasonably request. -21- ORL1ViEA1.I:FMT?M,V 317eM26 ONJ dT) 2/2212007 6;34 AM g, Prorations..All ad valorem real property taxes shall be prorated between LNLC and Burnham with respect to the Property based on the prorated amount of taxes levied against osing, if applicable, with maximum allowance for discount. the Property as of Cl 9, physical Condition of Property. ACKNOWLEDGES, FORTH UNDERSTANDS AND A(}REES THAT�EXCEPT RESPECT P TO IC LNLC' S E SPECIFIC HEREIN TO THE .CONTRARY REPRESENTATIONS, THE PROPERTY IS BEING CONVEYED BY «A AND ACQUIRED By BURN-HAM IN TI'S PRESENT PHYSICAL CONDITION, THAT LNLC MAKES ABSOLUTELY YN O��CNTA LOONS OF THE PROPERTY. WHATSOEVER WITH RESPECT TO T IN PARTICULAR, EXCEPT. AS SPECIFICALLY SPECIFIC REPRLSEN'TA'I'IONSI LNLC CONTRARY WITH RESPECT TO _ MAKES NO REPRESENTATIONS OR PERTY AND SHALL HAVE NO LIABILITY OR SUBSOIL CONDITIONS - OF THE PR RESPONSIBILITY TO BURNHAM FOR AONY SIIOSNED BY THE CONDITION OR INCURRED BY BURNHAM WHICH CHARACTERISTICS OF THE SOIL OR SUBSOIL OF THE PROPER'T'Y OR ANY PORTION THEREOF. 10. Representations and Warranties of LNLC. LNLC hereby kow acknowledges' and represents and warrants to Burnham. that the following acknowledgments, representations warranties are true and correct as of the Effective Date. References to the actual knowledge of LNLC or information of which LNLC is aware shall refer to the knowledge or awareness of the President and Vice Presidents of LNLC. le to a. That, to LNLC's knowledge, LNLC holds good and marketable fee simple uhse for the Property, and there are no leases, tenancies, licenses or other rights of occupancy or any portion of the Property except as described in the Permitted Exceptions. b. That LNLC r qualifications has IlO ns wh tsnevelreaffe g of any liens, encumbrances or security the Property that render title to the interests, exceptions or qualrficatio Property unmarketable. c. ' That LNLC can convey title to the Property to Burnham, subject only to the Permitted Exceptions, without the joinder or consent of others. d, That LNLC has no actual knowledge of any assessments for public improvements which have been made against or which affect the Property or of any public'imp leave been planned or ordered to be disclosed herein have, not be evcompleted ly the assessed and paid, except for matters di Boggy Creek CDD or the Master Association. e, To LNLC,s actual knowledge, there are no , actions dingo rto LNLCp (including any proposed zoning changes or condemnation proceedings) p -22- 0110 REJUES 1�TT938.0 3176Tl002E DHJ dhJ TlTT/2007 834 AM WIN, knowledge threatened against LNLC or affecting the Property, other than those disclosed or contemplated herein. f. That LNLC has not received any notices from any city, county, state or other Governmental Authority or other Person of violations with respect to the Property. g. That LNLC has received no notice, and has no actual knowledge, of any existing or pending special assessments affecting the Property which may be assessed by . any Governmental Authority, water or sewer authority, drainage district or any other special taxing district or other entity, other than as disclosed herein or assessments that may be levied by the Boggy Creek CDD or assessments that may be established with respect to the Primary Conservation Network (as defined within the Lake Nona DR.I). h. There are no existing written or oral contracts or agreements for the sale, lease or transfer of any portion of the Property, other than the Permitted Exceptions and those dedications or conveyances associated with the development of the Property as contemplated herein i. LNLC is not a party to and has no actual knowledge of any agreement or commitment that would impose any obligation on Burnham with respect to the Property, except as set forth in this Agreement, the Permitted Exceptions and the Local Agreements. j. Neither LNLC nor, to LNLC's actual knowledge, has any other Person has ever caused or permitted any Hazardous Substance to be. placed, held, located or disposed of on, under or at the Property or any part thereof (except in accordance with applicable law). To LNLC's actual knowledge (i) there is no landfill or buried debris on, under or at the Property, and (ii) neither the Property nor any part thereof has ever been used (whether by LNLC or, to the best of LNLC's knowledge, any other person) as a dump site or storage site (whether permanent or temporary) for any Hazardous Substances. Burnham hereby. acknowledges that LNLC has obtained and delivered to Burnham a Phase I environmental assessment report prepared by Professional Services Industries, Inc. for Lake Nona South, together with a reliance letter issued in favor of Burnham; Burnham accepts the condition of the Property as set forth in such report. k. To LNLC's actual knowledge, the soil and subsoil condition of the Property is as set forth in the soils report prepared by Professional Service Industries, Inc. with a date of November 6, 2006, together with a reliance letter issued in favor of Burnham; Burnham accepts the soil and subsoil condition of the Property as set forth in such report, 1.. The officers of LNLC executing this Agreement and the documents and instruments to be executed by LNLC in connection with this transaction have been duly authorized to execute the documents and the instruments to be executed by LNLC in connection with this transaction and that no other officers or entities are required to bind LNLC hereunder. M. That all required action has been taken by LNLC authorizing and approving the execution of and entry into this Agreement as of the date hereof and will be taken authorizing and approving the execution and delivery by LNLC of the documents and instruments to be executed and delivered by LNLC on the Closing Date, I and the performance by LNLC of -23- ORLjVWALESr%577939.9 317,V.=8 0HJ dtJ 212212007 8'.°N A14 98 LNLC's duties and obligations under this Agreement and of all other acts necessary and appropriate for the transfer of the Property as contemplated by and provided for in this Agreement. n. There are no actions, suits or proceedings pending or to its actual knowledge threatened against, by or affecting LNLC which would have an adverse impact upon LNLC's ability to perform its obligations hereunder, or which would question the validity or enforceability of this Agreement or of any action to be taken by LNLC under this Agreement, nn any court or before any Governmental Authority, domestic or foreign. o. The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by LNLC on the Closing date, and the performance by LNLC of LNLC's duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the transfer of the Property as contemplated by and provided for in this Agreement, are consistent with and not in violation of and will not create any adverse condition under, any contract, agreement or other instrument to which LNLC is a party.or to which the Property is subject, any judicial order or judgment of any nature by which LNLC is bound or to which the Property is subject; and this Agreement, and the covenants and agreements of LNLC under this Agreement, are the valid and binding obligations of LNLC, enforceable in accordance with their terms. p. LNLC will not cause or knowingly permit any action to be taken which will cause any of the foregoing representations, warranties or covenants to be untrue or unperformed on the Closing Date; and LNLC will not cause or knowingly permit any action to be taken which will cause any of the conditions of LNLC's obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing Date. q. LNLC will deliver on the Closing Date all documents and instruments required by this Agreement and perform all acts reasonably necessary or appropriate for the consummation of the transfer of the Property as contemplated by and provided for in this Agreement. r. To LNLC's actual knowledge, water, sewer, electric, gas (if applicable), telephone, cable and other utilities are currently available to Lake Nona South and will be available to the Property in a timely fashion during the construction of the Research Facilities on the Property pursuant to applicable contracts and agreements. S. The President and Vice Presidents of LNLC are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. 11, Burnham's Representations and Warranties and Affirmative Obligations. a. Representations and Warranties. Burnham hereby represents and warrants to LNLC that the following representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of Burnham or information of which Burnham is aware shall refer to the knowledge or awareness of the Chief Executive Officer, Chief operating -24- Oft,1REAlE8T1e77030.0 w0Yf00Y! OFW dhj?!t ?l 7 634 AM 9B Officer and Vice President, Business Development of Burnham and, only if and when appointed, ' the Vice President, Operations of Florida of Burnham (or equivalent officer position). ' I (i) Burnham is a California nonprofit .public benefit corporation, duly organized, validly existing and in good standing under the laws of the State of California, and as of the date of Closing will be authorized to transact business in the State of Florida. (ii) Burnham has received a determination letter from the Internal Revenue Service classifying it as an organization described in Sections 501(c)(3) and 170(b)(1)(A) of the internal Revenue Code of 1986, as amended, and such determination has not been modified or revoked. Burnham acknowledges and agrees that maintenance of Burnham's tax- exempt status is` critical to the goals set forth herein, and Burnham agrees it shall take all appropriate action to maintain its tax - exempt status. (iii) Burnham has the lawful right, power, authority and capacity to acquire the Property in accordance with the terms, provisions . and conditions. of this Agreement and otherwise perform the obligations contained herein. (iv) There are no actions, suits or proceedings pending or to its knowledge threatened against, by or affecting Burnham which would have an adverse impact upon Burnham's ability to perform its obligations hereunder, or which question the validity or enforceability of this Agreement or of any action taken by Burnham under this Agreement, in any court or before. any Governmental Authority, domestic or foreign. (v) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by Burnham on the Closing Date, and the performance by Burnham of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the Hill consummation of the matters provided for in this Agreement, are consistetrt with and not in violation of and will not create any adverse condition under, an contract, agreement or other instrument to which Burnham is a party, y judicial order or judgment of any nature by which Burnham is bound; and this Agreement, re the and the covenants and agreements of Burnham enforcunde in s Agreement a their valid and binding obligations of Burnham, terms. (vi) All required action has been taken by Burnham authorizing and approving the execution of and entry into this Agreement as of the date hereof and will be taken authorizing and approving the execution and delivery by Burnham of the documents and instruments to be executed and delivered by Burnham on the Closing Date, and the performance by Burnham of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the &..2 DRL1\REALEM77939A 31782/0928 DW dry 212V=7 9:34 AM • r r consummation of the acquisition and transfer of the Property as contemplated by and provided for in this Agreement. (vii) Burnham will not cause or kaowingly permit any action to be taken which will cause any of the representations, warranties or covenants of Burnham set forth in this Agreement to be untrue or unperformed on the Closing Date; and Burnham will not cause or knowingly permit any action to be taken which will cause any of the conditions of Burnham's obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing Date. (viii) Burnham will deliver on the Closing Date all documents and instruments required by this Agreement and perform all acts reasonably necessary or appropriate for the consummation of the transfer of the Property as contemplated by and provided for in this Agreement. (ix) The Chief Executive officer, Chief Operating Officer and Vice President, Business Development of Burnham and, only if and when. appointed, the Vice President, Operations of Florida of Burnham (or equivalent officer position) are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. b. Aff_ rtmative b liggjons. Burnham hereby covenants and agrees to the following affirmative obligations (the "Affirmative Obligations' l: (i) Burnham shall not construct or commit to construct any portion of the Project, at any'location.. other than the Burnham Campus, without LNLC's prior written consent, which consent may be withheld in LNLC's sole and absolute discretion, it being the Parties' intent to create a viable, innovative and comprehensive Project and Research Park within the Lake Nona DRI. (ii) Burnham shall use best faith efforts to continuously operate Burnham's Expansion Phase and the Additional Expansion Phase, if applicable, upon the Property. Specifically, from and after the opening of each facility within Burnham's Expansion Phase and the Additional Expansion Phase, if applicable, Burnham shall thereafter use best faith efforts to continuously operate such facility and shall take all steps necessary to insure the continuous operation as required herein for a period of no less than twenty (20) years. (iii) In the event Burnham desires to allow development of any portion of the Property for the benefit of an End User (as defined below) by other than such End User, Burnham shall allow LNLC to act in the capacity of developer for such project, upon normal and customary terms, rather than retain a third party developer. Any funds derived from the sale or lease of the Property shall be used by Burnham to fund the, operations of Burnham, whether in direct payment or through an endowment establisbed for such purpose. -26- ORUVk ALE8T1677939.9 317MD2s DHJ 6N 21=OD7 0:34 AM The foregoing Affirmative Obligations shall be included in the Development Agreement at the time of Closing. 12. Planned Development/Development of Regional impact. The Project.is a part of the Lake Nona DRT pursuant to the trams of the Development Order (the "Lake' Nona Development'). LNLC retains and shall hereafter have the right, at any time and from time to time, to make such changes, modifications, revisions, additions and/or deletions to the Development Order and PD as LNLC, in its sole discretion, shall determine; subject, however, if required, to the approval of the City and the appropriate agencies of the State of Florida. Burnham, on behalf of itself and its Permitted Assignees, hereby waives any and all right to object, directly or indirectly, to any changes, modifications, revisions, additions and/or deletions to the Development Order or the PD by LNLC or LNPH except to the extent that any such change, modification, revision, addition and/or deletion may have a material adverse effect upon the use of the Property in accordance with the Approved Master Plain for the Permissible Use. LNLC hereby discloses to Burnham that LNLC will be pursuing one or more Entitlements Amendment and agrees to provide written notice to Burnham of any such Entitlements Amendment. Burnham acknowledges and agrees that such Entitlements. Amendment shall not be considered to have a material adverse effect upon the Property provided such Entitlements Amendment does not preclude development of the Research Facilities on the Property in accordance with the Approved Master Plan or have a material and adverse effect upon the ability of Burnham to operate the Research Facilities on the Property for the Permissible Use. Neither Burnham nor its assignees shall have, and Burnham, on behalf of itself and its assignees, hereby waives, any right to change, amend or modify the Lake Nona Dn the PD or any other agreements, approvals or permits affecting the bake Nona DRT (except for such matters that solely affect the Property) in any manner whatsoever, without the express prior written consent of LNLC and LNPH, which consents may be withheld or conditioned in such parties' sole, absolute and arbitrary discretion. LNLC and LNPH shall have the right to review any proposed amendment and shall not be required to find the existence of a material and adverse impact in order to disapprove of a proposed amendment. Any such proposed amendment shall be submitted to both LNLC and LNPH, together with copies of all pertinent documentation relevant to or to be submitted or filed with the proposed amendment. LNLC and LNPH shall have a period of up to forty-five (45) days within which to review, and approve or disapprove, as applicable, of such amendment. Approval of the amendment may be conditioned at LNLC's and /or LNPH's sole discretion. No such amendment may be submitted to any Governmental Authority without the express written consent of LNLC and LNPH. The failure of LNLC or LNPH to approve of or object to a proposed amendment within said forty-five (45) day period shall be deemed a disapproval of the amendment. Burnham, and its successors and assigns, shall cooperate with LNLC in completing LNLC's biannual reporting obligations under the Development Order. The provisions of this paragraph shall expressly survive Closing under this Agreement and shall be incorporated into the Development Agreement. 13, Development Agreement. -27- ORLIWEALESTW7939.9 31?62M?8 DHJ dN 2/222007 9:34 AM 98, a. Exec u____ tion of el ent A Bement. At Closing; Burnham and LNLC and/Or LNPH shall execute and deliver to each other the Development Agreement, in the form consistent with other development agreements executed by parties within the Lake Nona DRI, which will, among other things, (a) acknowledge the parties' obligations and rights with respect to the Entitlements as specifically provided in Section 3.j. above, (b) limit the use of the Property to the Permissible Use, and (c) provide constructive notice of the easements and zestrictions set forth herein as well as w any of the other rights and obligations set forth herein regarding the development of the Property as either Burnham or LNLC may reasonably request, including, without limitation, those matters so specified herein, as well as a notice of the proximity of the Permanent Facilities Site to Orlando International Airport and notice of the architectural and design approval provisions set forth herein (the "Development Agreement "). The Development Agreement shall be recorded among the Public Records of Orange County, Florida immediately after the deed to be executed and delivered at Closing. LNLC shall provide Burnham with a copy of the proposed form of the Development Agreement not less than thirty (30) days after the date hereof- b. Defaults Under Development Agreement. The Development Agreement shall provide that an event of default would occur under the Development Agreement in the event Burnham defaults in the' perforniance or observance of any of the covenants, restrictions, requirements, stipulations and obligations to be performed and/or observed by Burnham thereunder (after all applicable cure periods), including but not limited to the following (but excluding the Other Development Agreement Defaults described in Section 134(i)): (i) failing to receive LNLC's approval of improvements and infrastructure to be constructed by Burnham on the Property; or (ii) contracting for sale of the Property or any portion thereof without the prior written approval of LNLC, which consent may be withheld in LNLC's sole and absolute discretion; provided, Burnham may convey or lease to third party end - users operating such portion(s) of the Property for life sciences research purposes (e.g., research organizations/institutions or pharmaceutical companies) consistent with the Permissible Use (an "End User ") as long as (A) Burnham has obtained the prior written consent of LNLC, which consent shall not be unreasonably withheld, and (B) Burnham has not Ceased Operations, provided that for purposes of this Section 13.b.(ii)(A) the - reference to fifty percent (50 %) in the definition of Ceased Operations shall instead be sixty -five percent (65 %), as of the last Report Period during that Measurement Period that immediately precedes the date of the applicable proposed sale (it being understood that this subsection (A) shall be inapplicable after the Measurement Period). In the event of a conveyance to a third party in accordance with the foregoing, Burnham shall ensure that any such third party purchaser is contractually bound by the provisions and restrictions hereunder, excluding subsection (A) which shall not apply to any third party purchaser, which obligations by their nature are intended to survive Closing and run with title to the Property; or -26- 011MIg0E8 l D31762 81 7DD 07 8;90 AM 9B. (iii) Burnham files, or has filed against it involuntarily, any proceedings in bankruptcy, becomes insolvent, or makes a general assignment for the benefit of creditors, or (iv) defaulting in the performance or observance of any of the covenants, restrictions, requirements, stipulations and obligations to be performed and/or observed subsequent to Closing by Burnham under the Development Agreement. (collectively, a "Primary Development Agreement Default'). c. Remedies for Primary Development Agreement Default, In the event of a Primary Development Agreement Default (after all applicable cure periods), the Development Agreement shall provide that LNLC shall have the option to proceed according to one or more of the following causes of action; (i) Subject to the limitations provided hereinbelow, initiate an action at law or in equity to enforce LNLC's rights under the Development Agreement, including but not limited to specific performance or injunctive relief; (ii) Cure the default in the manner set forth in subsection d. hereinbelow; and/or (iii) Record a declaration among the public records that a Primary Development Agreement Default bas occurred under the Development Agreement in order to preserve and/or enforce any of LNLC's rights thereunder without such declaration being deemed a slander of title or other cause of action in favor of Burnham. d. Other Development Agreement Defaults and Remedies. (iv) The Development Agreement shall provide that (x) the events in clauses (A), (B) and (D) shall also constitute an event of default by Burnham under the Development Agreement, provided that they shall apply only to Burnham and the Surplus Land owned by Burnham and shall not apply to any third party purchaser of all or any portion of the Surplus Land, and (y) the events in clauses (C) and (E) shall also constitute an event of default by Burnham with respect to the Surplus Land owned by Burnham to the extent of such a violation or action by Burnham or an event of default by a third party purchaser of all or any portion of the Surplus Land with respect to the Surplus Land owned by such third party purchaser to the extent of such a violation or action by such third party purchaser, as applicable; however such an event of default by Burnham shall not constitute a default by any such third party purchaser and an event of default by any such third party purchaser shall not constitute an event of default 'by Burnham (an "Other Development Agreement Default"). (A) at any time prior to the end of the Term of the Ground Lease, Burnham has Ceased Operations at the Burnham Campus in Orlando, Florida, which -29- ORUI REALEsmn"9.6 31762=25 DHJ dh) 2122J20D7 6:34 AM T 0 IM situation has not been cured within forty-five (45) days of the Funding Parties' or LNLC's written notice to Burnham; or (B) at any time prior to the date that is twenty (20) years after the Effective Date of the Grant Agreement, Burnham violates, or fails to abide by, the exclusivity provisions of Part VII of the Grant Agreement, which violation or failure has not been cured within thirty (30) days of the Funding Parties' or LNLC's written notice to Burnham; or (C) Burnham has violated the Permissible Use restriction with respect to the Property, which situation has not been cured within thirty (30) days of LNLC's written notice to Burnham, or (D) upon early termination of the Grant Agreement and/or the Ground Lease prior to the expiration of the term of the applicable agreement; or (g) Bumham has taken any action that has or is reasonably likely to have a Material and/or Adverse Effect, which situation has not been cured within thirty (30) days of LNLC's written notice to Burnham. (v) In the event of an Other Development Agreement Default (after all applicable care periods), LNLC shall have the option, in LNLC's sole .discretion, to record an instrument among the public records that an Other Development Agreement Default has occurred under the Agreement resulting in an immediate transfer of Burnham's interest in the Property then owned by Burnham to Tavistock Foundation, or another organization described in Sections 501(c)(3) and 170(b)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Alternate Foundation '); it being the parties' intent that such a default would create a °`springing interest" in favor of the Alternate Foundation. LNLC's Rights to Cure. In recognition of the paramount need of LNLC to control the development of Lake Nona South over a period of many years and the substantial damage that may be incurred by LNLC if the plans for Lake Nona South are not followed by Burnham, LNLC may, at its option, in addition to all other rights and remedies herein provided, cure any Primary Development Agreement Default and charge Burnham for all commercially reasonable expenses incurred by LNLC in so doing. Burnham shall pay LNLC for all such expenses upon demand by LNLC. LNLC shall have a lien against the Property for recovery of such expenses, which lien may be foreclosed in like manner to the foreclosure of mortgages under Florida law; provided, however, such lien shall not attach until the recording of a Notice of Lien in the Public Records of Orange County, Florida. Additionally, no action that would constitute a default under the Development Agreement shall be deemed a default until written notice thereof has been given to the party in default and the party in default has failed to cure the default within ten (10) days of such notice; provided, in the event such party has commenced cure within said period and is diligently pursuing same to completion, such party shall have thirty (30) days to effectuate the cure, or such other applicable cure period specified in this Agreement. -30- 4�N Esn677c3e.a 31767/0020 DFIJ tlhj 2/22/2007 8:84 AM 14. Architectural Control. Within 180 days after the Effective Date hereof, LNLC shall provide Burnham with the Approved Architectural Criteria, and no improvements of any kind may be constructed on any portion of the Property unless such improvements are approved in writing by LNLC and are consistent and in accordance with the Approved Architectural Criteria, unless otherwise agreed in writing by LNLC. LNLC shall not change the Approved Architectural Criteria after providing it to Burnham in any way that would materially and adversely affect any prior approved building or development plans. Thereafter, no party shall apply for or obtain any of the development permits, or a building permit for, or commence the construction of, any improvements on any portion of the Property, unless and until the plans and specifications for any such improvements or modifications are first submitted to and reviewed and approved, in writing, by LNLC and are consistent with the Approved Architectural Criteria, such review and approval not to be unreasonably withheld or delayed. Any modification to the Approved Architectural Criteria shall only be made upon review and approval by LNLC, not to be unreasonably withheld or delayed, and so long as such modification is consistent with the quality standard established by LNLC for the Lake Nona DRI. Burnham acknowledge that LNLC's review and approval rights shall include, without limitation, exterior wall design (including materials, height, color, signage affixed, detailing), signage and poles (including project, street, directional), lighting and poles (including street, signage, landscaping, building), screen enclosures, construction site appearance and maintenance, exterior equipment, play equipment, loading docks, fencing and landscaping (including type, size, spacing, design, irrigation, sod and trees). The provisions of this paragraph shall expressly survive Closing and shall be included in the Development Agreement. The Approved Architectural Criteria shall run with the land and shall apply to subsequent third-party lessees or purchasers of any portion of the Property. 15. Default Provisions; Remedies. a. Bumharn's Defa t in its Ob Utlon to Closg . if, in violation of the terms and conditions herein, Burnham fails to close on the Closing Date, as it may have been extended in accordance with Section 7 herein, other than for a failure of a Condition, LNLC may Pursue as its sole remedy appropriate equitable remedies against Burnham. If Burnham fails to satisfy any of the Conditions to be satisfied by Burnham, LNLC shall have the rights described in Sections 7.c. and 7.e. b. LNLC's Default in its Obligation to Close, if, in violation of the terms and conditions herein, LNLC fails to close on the Closing Date, as it may have been extended in accordance with Section 7 herein, other than for a failure of a Condition, Burnham may pursue as its sole remedy appropriate equitable remedies against LNLC, if LNLC fails to satisfy any of the Conditions to be satisfied by LNLC, Burnham shall have the rights described in Sections 7.c, and 7.d., or if such failure is the result of a Title Defect, the remedies described in Section 4. C. Material Default. The occurrence of any one or more of the following events shall constitute a "Material Default." (i) ley Burnham. In the event of a breach by Burnham of any material term of this Agreement to be observed or performed by Burnham prior to or after Closing (but -31- 0RL11REALE81)577989.9 91702/0048 DHJ Ohj 1PlYM7 839 AM I19B only if such breach is not due to the breach of any obligation of LNLC under this Agreement or any other agreement contemplated hereby) (a `Burnham Material Breach'j, LNLC shall provide written notice to Burnham of such Burnham Material Breach. Burnham shall cure such Burnham Material Breach, or if such Burnham Material Breach. is not capable of cure, Burnham shall promptly report to . LNLC regarding the circumstances that led to the Burnham Material Breach, the impact of the Burnham Material Breach on this Agreement and how Burnham intends to mitigate any anticipated or actual adverse impact. Such reports to LNLC shall occur as promptly as possible after notification to Burnham that a Burnham Material Breach has occurred, and shall continue until the Burnham Material Breach has been cured or until LNLC is reasonably satisfied that any Burnham Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of Burnham to perform as contemplated by this Agreement. If Burnham and LNLC are unable to resolve the Burnham Material Breach within one hundred twenty (120) days, either by' its cure or by LNLC's satisfaction that Burnham can perform its obligations as contemplated by this Agreement, then LNLC may pursue as its sole remedy appropri ate equitable remedies for such Burnham Material Breach. (ii) By n&, In the event of a breach by LNLC of any material term of this Agreement to be observed or performed by LNLC except for matters set forth in Section 15.b. above (but only if such breach is not due to the ofeeun y obligation of Burnham under this Agreement or any contemplated hereby) (a " LNLC Material Breaehl, Burnham shall provide written notice to LNLC of such LNLC Material Breach. LNLC shall cure such LNLC Material Breach, or if such LNLC Material Breach is not capable of cure, LNLC shall promptly report to Burnham regarding the drewmstances that led to the LNLC Material Breach, the impact of the LNLC Material Breach on this Agreement and how LNLC intends to mitigate any an icipated or actual adverse impact. Such reports to Burnham shall - occur as promptly as possible after notification to Burnham that a LNLC Material Breach has occurred, and shall continue until the LNLC Material Breach has been cured or until Burnham is reasonably satisfied that any LNLC Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of LNLC to perform as contemplated by this Agreement. if Burnham and LNLC are unable to resolve the LNLC Material Breach within one hundred twenty (120) days, either by its cure or by Burnham's satisfaction that LNLC can perform its obligations as contemplated by this Agreement, then Burnham may pursue as its sole remedy appropriate equitable remedies for such LNLC Material. Breach. d. Effect -,of Termination. Upon tbrmination of this Agreement, all rights and obligations of the Parties to this Agreement shall terminate except as specifically set forth in this Agreement, including Burnham's Indemnity Obligations. -32- MLISR@ALFSmnR39.9 3179210028 DMI dy 21121=7 W4 AM e. Exclusivity of Remedies. The remedies specifically enumerated in this Agreement are intended to be exclusive of any other remedy, Each Party hereto waives all rights to seek damages against another Party hereunder except those arising as a result of specific indemnity obligations hereunder. 16. Assignability. Except for an assignment 'by Burnham to an entity to which it is entitled to assign its rights and obligations under the Crrant Agreement, this Agreement may not be assigned by Burnham in whole or in part without the express prior written consent of LNLC, which consent may be withheld in LNLC's sole, absolute and arbitrary discretion. Any assignment of Burnham's rights hereunder shall be .subject in all respects to Burnham's obligations hereunder and the terms, conditions and limitations set forth herein and, unless a permitted assignee, shall not serve to release Burnham from its obligations hereunder. 17. Declaration of Covenants, Conditions and. Restrictions, Burnham acknowledges that LNLC shall have the right to approve in writing the terms and conditions of any declaration of covenants, conditions and restrictions to which Burnham subjects the Property, whether through a property owner's association that maybe formed in connection with the development of the Research Facilities on the Property, which if formed, shall be a member of the Master Association,. or otherwise, as well as the articles of incorporation, bylaws and other documents governing any such property owner's association. Burnham hereby acknowledges and agrees that all covenants, conditions and restrictions and any such property owner's association documents shall be submitted to LNLC and the Master Association ,for review and approval at least thirty (30) days prior to the anticipated recordation date. The provisions of this Paragraph shall survive the Closing hereunder. 18, Enforcement Coats. In the event that any Party finds it necessary to employ an attorney to enforce any provision ofthis Agreement, the predominantly prevailing Party will be entitled to recover from, the other Party its reasonable attorneys' fees and costs incurred in connection therewith (including costa of collection), at both trial and appellate levels; including bankruptcy proceedings, in addition to any other remedies to which. such Party may be entitled. The requirement to pay the predominantly prevailing Party's reasonable attorneys' fees and costs will survive any termination of this Agreement. 19. Time of Essence. Time is of the essence of this Agreement and in the performance of all conditions and covenants to be performed or satisfied by any Party hereto. Whenever a date specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the next succeeding Business Day. 20. Waiver. No waiver of any provision of this Agreement shall be effective against any Party hereto unless it is in writing and signed by the Party(ies) waiving such provision. A written waiver shall only be effective as to the specific instance for which it is obtained and shall not be deemed a continuing or future waiver. 21. Counterparts. This Agreement may be executed in any two (2) or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. -33- ORLIMALUW77939.9 0175210020 OHJ dN 2/22/2007 8:34 AM L 22. Captions. The captions, sections and part designations herein set forth are for convenience only and shall have no substantive meaning. 23. Notices. All. notices and communications under this Agreement shall be in writing and shall be given by: (i) hand delivery (ii) certified mail, return receipt requested (postage prepaid); (iii) reliable overnight commercial courier (charges prepaid); or (iv) facsimile (with confirmation of transmission) to each of the Parties as follows: To LNM Lake Nona Land Company, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Telephone: (407) 816 -6598 Facsimile: (407) 438 -0207 With a copy to: Lake Nona Property Holdings, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Telephone: . (407) 816 -6598 Facsimile: (407) 438 -0207 and With a copy to: Tavistook Corporation 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Tbakkar, Chief Executive Officer Telephone: (407) 909 -9911 Facsimile: (407) 876 -0085 and With a copy to: Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Telephone: (407) 839 -4282 Facsimile: (407) 650-0920 To Burnham: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Karin Easthan), -34- ORLIIREALB8T18778aY 8 II-r, 0048 �HJ M yY? OT D:U AM `1 q✓ Executive Vice President/COO Telephone: (858) 646 -3100 Facsimile: (858) 646 -3184 With a copy to: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Vice president, Business Development Telephone: (858) 646 -3100 Facsimile: (858) 646 -3105 With a copy to Shutts & Bowen L12 300 North Orange Avenue, Suite 1000 Orlando, Florida 32802 Attention: Michael Grindstaff Telephone: (407) 423 -3200 Facsimile: (407) 42578316 With a copy to Cooley Godward Kronish LLP 4401 Eastgate Mal. San Diego, CA 92121 Attention: L. Kay Chandler Telephone: (858) 550 -6000 Facsimile: (858) 550 -6420~ To Escrow Agent: Broad and Cassel 390 North Orange Avenue, Suite 1100 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Telephone: (407) 8394282 Facsimile: (407) 650 -0920 Notice shall be deemed to have been given and received: (i) if by hand delivery, upon delivery; (ii) if by mail, three (3) days after the date first deposited in the United States mail; (iii) if by overnight courier; on the date shown on the courier's receipt as the date of actual delivery; and (iv) if by facsimile, on the date shown on the confirmation of transmission. A Party may change its address by giving written notice to the Party as specified herein. 24. Governing Law, Venue. This Agreement shall be governed by the laws of the State of Florida. The Parties hereby agree that venue for any legal action authorized hereunder shall be in Orange County, Florida, and that jurisdiction shall be vested the Civil Division of the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida, and if appropriate, in the Business Court Division thereof -35- 0RL11REgLES1nl77P79A ry 8:31 AM 317aZ1o026 DHJ d r2V= 26. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 26, Integrated Contract, Waiver and Modification. This Agreement (together with the documents specifically referred to herein) represents the complete and entire understanding and agreement between and among the Parties hereto with regard to all matters involved in this Agreement and supersedes any and all prior or contemporaneous agreements, whether written or oral. This Agreement may not be modified or amended, nor may any provision contained herein be waived, except in writing signed by all Parties, or if such modification, amendment or waiver is for the benefit of one or more of the Parties hereto and to the detriment of the others, then the same must be in writing signed by all Parties to whose detriment the modification, amendment or waiver inures. 27. Brokers. LNLC and Burnham hereby acknowledge, represent and warrant to each other that no broker or finder has been employed by either LNLC or Burnham in connection with the sale and purchase transaction contemplated in this Agreement. LNLC and Burnham each warrant to the other that no commissions are payable by LNLC ox Burnham respectively to any broker or finder in connection with this Agreement or the transaction contemplated herein, and LNLC and Burnham each agrees to indemnify, defend, save and hold the other harmless from and against the payment of any commissions or fees .or claims for commissions or fees by virtue of any acts or actions undertaken by them, respectively, it being expressly agreed that the foregoing agreement of indemnification shall expressly survive any termination, closing or closings under this Agreement. 28. Memorandum of Agreement. Neither this Agreement nor a memorandum thereof may be recorded in the public records of any county within the State of Florida; the recording of this Agreement or a memorandum shall be a default'hereunder. 29. Independent Contractor Relationship. Each Party to this Agreement is, and shall be, in the performance of all work services and, activities under this Agreement, an independent contractor, and not an employee, agent, or servant of any of the other Parties to this Agreement, individually or collectively. All persons engaged in any of the work or services performed by a Party pursuant to this Agreement shall at all times, and in all places, be subject to such Party's sole direction, supervision, and control. Each Party shall exercise control over the means and manner in which it and its contractors perform the work. No Party to this Agreement has the power or authority to bind any other Party to this Agreement in any promise, agreement or representation. 30. Surviving Clauses. The provisions of this Agreement set forth in Sections 2 (as provided therein), 3, (as provided therein) 8, 9, 10 and l La. (for a period of one year following Closing), l Lb., 12 -15, 16 (as provided in section 3), and 17 -38 will survive Closing pursuant to this Agreement - and Sections 2 (as provided therein), 15, 18 -24, 26 -33 and 36 -38 shall survive any termination of this Agreement. Except as set forth in the preceding sentences or as otherwise -36- ORLUREALE8WTM36.9 3,79MZS DW dM M=007 8•.34 AM • fJ FALB, expressly set forth herein, no other provision of this Agreement will survive closing of this -hereof by as a matter of right. transaction or any termination either party 31. No partnership or Joint Venture. Nothing set forth in this Agre��t shall be legal nor a legal joint venture between the parties i deemed or construed as creating a partnership hereto nor any other party, nor shall it cause any party to be responsible in any way for the debts 1 and obligations of any other party. oins in the execution of this 32. Limited Joinder of LNPH. LNPH cnt to ns bound by only those terms Agreement for the limited purpose of evidencing its air hereof which spedliWly pertain to LNPH.. and provisions 33. Force Majeure. Either party hereto shall be excused for the period of delay in eur hereunder when h delta °ded °like ) the performance of any obligations y° for a Period. Event and the time for performance shall be l to the payment of any of this provisioA shall not apply Notwithstanding the foregoing, the terms amount when due or to Closing. Cooperation. LNLC and Burnham agree that they will, at any time 34. Continuing p of the other party, do, execute, and from time to time after the Closing Date, upon request cause to be done, executed, acknowledged and delivered, all acknowledge and deliver, or will such .further acts, deeds, assignments, transfers, conveyances and assarancas as may Y and Co g of the transaction transferring, Wig, assuring be required for the assigning, in collecting and reducing to possession, any or contemplated herein, or for siding acid assisting vided that to this Agracm° being transferred herein pursuant all of the assets or property b and that provided in impose any liability or additional costs on either party beyond the same do not this Agreement. 35. ApprovWContinuiug Cooperation. In the event this Agreement indicates that or is silent fin such regard, a party's consent shall not be unreasonably withheld dli, s Agreement not be unreasonably withheldbdelayed Party's sole discretion, such shall or withheld at such indicates that a Parry's consentY granted at such Party's sole and absolute discretion for any reason or consent may be granted or withheld no reason at all. term or provision of this Agreement, or the application 36. 5everability. if any p or unenforoeabl% the thereof to any person or circumstances shall, to any extent, be held invalid t, the application of such terms or provision, to persons or remainder of this Agreem en or other than those as to which it is held invalid or shall unenforceable, able, s stand circumstances affected, and every other term and provision of this Agreement enforceable to the extent permitted by law. 37. No Forfeiture. The rights of each of the Parties under this Agreement shall be Party to exercise promptly any rights given cumulative and failure on the part of any such hereunder shall not operate to forfeit or waive any of the said rights. -37- 0 1ViEAtES11071939.9 9178Q10026 DFiI dH yty20p7 0;34 AM 9B 38. No Fees. Except as otherwise expressly set forth in this Agreement, no fees or other charges of any kind or amount shall be required by any Party hereto as a condition of the grant of any consent or approval which may be required under this Agreement. NOTICE TO BURNHAM THE BOGGY CREEK IMPROVEMENT DISTRICT MAY IMPOSE AND LEVY TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON THIS PROPERTY. THESE TAXES AND ASSESSMENTS PAY THE CONSTRUCTION$ OPERATION; AND MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES AND SERVICES ON THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF THE DISTRICT, THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO THE COUNTY AND ALL OTHER LOCAL GOVERNMENTAL TAXES AND ASSESSMENTS AND ALL OTHER. TAXES AND ASSESSMENTS PROVIDED FOR BY LAW. [SIGNATURES CONTAINED ON FOLLOWING PAGES] -38- o�tsrerrea�.e 31 8:U AM 98 IN WITNESS WHEREOF, the parties have executed these presents on the day and year set forth below. "B[iItIVAA1VI" Signed, sealed and delivered in the presence of the following witnesses: Print N44: S .� .!/P WINSIS -39• oRL MALE8MM39A 31762ID926 OW 04 212212067 $24 AM BURNHAM INSTITUTE FOR MEDICAL RESEARC$, a California nonprofit public benefit corporation MIN �. [corporate seal] Executed on:_ (YO#t)ArJ Signed, sealed and delivered in the presence of the following witnesses: "LNLC" LAKE NONA LAND COMPANY, LLC, a Florida limited liability company -40- ORLIV2EALESUT7939.9 31782/0028 DHJ dhj 2/22/2007 8:34 AM 3y: Rasesh Thakkar, Vice President Executed on:� '2007 LIMITED JOINDER The undersigned hereby joins in the execution of this Agreement for the limited purpose of evidencing its agreement to be bound by only those terms and provisions hereof which pertain to the undersigned. LAKE NONA PROPERTY HOLDINGS, LLC, a Florida limited liability company /i■— �� .. Rasesh Thakkar, Vice President -41- Executed on: Ole 2007 ■ --%C' ORL11REALEMB77939.9 317621W28 O►1J Chi 2/2212007 8'34 AM Disclosure DISCLOSURE OF PUBLIC FINANCING AND MAINTENANCE OF IMPROVEMENTS TO RE AL UNDERTAKEN N BY THE BOGGY CREEK community development districts are required to take affirmative Under Florida law, steps to provide for the full disclosure of information districts, The 1awspecifically improvements to real property undertak Y _ maintenance of imp thin th provides that this information shall be made available to all llow�' g s�rmatx n describing the B099Y District and to all prospective District residents. The Creek Improvement District (the "District's and community infrastractare is provided to fulfill been levied within such districts to pay for certain this statutory requirement. an how, Is it V ? What is the Distri4t The District is an independent special taxing district established in 2003 by the Board of Orange County, Florida A local unit of special - purpose government County Commissioners, under the provisions of Chapter 190) Florida Statutes, the created pursuant to and existing acres of land located in the City of Orlando, District encompasses aPpximately �--�— financing, Orange County, Florida, The Distract provides an alternative means for planning, facilities coange ing, operating, and maintaining various public improvements and .community within its jurisdiction. The District is governed by a five- member Board of Supervisors, the members of which Within inustbe residents of the State and citizens of the Unit bass States the own9ers of pmpenY within the the initial board, members were elected on an at-large . Y District, each landowner being entitled to one vote for each acre of land two years on the first rounded upward to the nearest whole number. Elections ears after the initial appointment of Supervisors . Commencing Y Monday in fled electors, Supervisors whose terms and when the District attains a minimum of q "qualified elector" in are expiring will begin to be elected by qualified electors of the District. A "q�fi this instance is any person at least 18 year's of age who is a citizen of the United States, a legal resident of Florida and of the District, and who is also registered withte the B proposes to Supm e County- Notwithstanding the foregoing, if at an' ny to vote in Orange ower, it shall, prior to the exercise of such power, call an election exercise its ad valorem taxing p at which all members of the Board shall be elected by qualified electors o£ the District Board meetings are noticed in the local newspaper and are conducted in a public forum in public records laws, the records which public participation is invited Consistent with on durin normal business hours. Elected of the District are always available for public inspecti law and are subject to members of the Board are ements as other elected officials under theStawl s ethics laws. j the same disclosure requi Disclosure -1 OpL71REALEST1877Y98.9 31762!0023 DHJ M� 2122Imol 5-M AM 9B hat astruct re im ovementa does �*he s triet rov e? improvements provided by the District include Toads, ioadway and The infrastructure imp tems, bridges, water supply and distribution t other drainage collection and water management sys en ace and conservation ;. s, �eetlighting systems, and open with the proceeds of systems, wastewater and :reuse system �nstructed or have been constructed areas. These improvements are being the District's bonds (discussed below). ' Asee sm ntg. Fees and CharW , The costs of these infrastructure improvements have been financed "Bond ej strict ! through the sale of Speer A'sessment Bonds, Series and secured by the levy and the interest due thereon, are Payable solely from The Bonds, lands within the District which benefit from the of non ad valorem or special assessments against rovements. uisition, establisbmen� and operation of the District's imor installation of other construction, acq sitior<, T1ae District may only dertake the construction` acq fonds, notes or other methods improvements and facilities, which may be financed by flx�e ��° '� 1g0, Florida Statutes. More information can be obtained from the b Chap k District's s public records. is described above exclude any operations and maintenance assessment Which The amours the District's Board of SupeNisors against all benefited may be calculated annually by the District. m the formulation of all. A detailed description of all ' costs for ublie cations upon request. --�, assents, fees and charges are available P �L��� +{ 1Vieth of , �U portion of the ear on that p The District's benefit and maintenance assessments nay can tax bill entitled "non ad valorem assessmentss) prop, owner must annual real estate county ad valorem ownem will, County tax collector in the carne mann both ad valorem and non-ad valorem assessments for lit the ad valorem taxes. As with any tax bill, ho be entitled to the same discounts p the tax collector is however, aid within the prescribed time.li�nnit, if all taxes and assessments due w oh, if not timely redeemed, n°ay result in the loss of title to the required to sell tax Proms. Operation, services and financing structure is intended to + This description of the District's op the important role that the i provide assistance to the landowners and gumham's concerning the development of new roviding infrastructure improvements essential to formation about the District plays in p simply like additional communities. if you have questions or would B9 Creek improvement District, District Pleas contact the District Manager, Soggy District, p telephone: offices, Attn. a as ORLIIRHJ�E -+ "039A 3178210028 DHd � 2122(2007 8:34 AM Discl0sure -2 List of Exhibits Schedule 1 Schedule of Definitions Exhibit "(b)" Abutting Road System Exhibit "(r)" Permitted Exceptions Exhibit "(u)" Property Exhibit "3.a.(iv)" Mass Grading Standards Exhibit "3i.(ii)" CIP Exhibit 'T' Survey Depiction -42- ORL 11REALE5710770.18.8 91792AMS OHJ dM V2V2OD7 8:34 AM Schedule l �. Definitions ccount,, shall mean that certain separate, restricted, interest bearing escrow account established pursuant to the terms of the Escrow Agreement. ,,A A3era eg,� Wage" means 130% of the average private sector wage in Orange County, Florida as determined by the Agency for Workforce InuAvation C AAWI" ) most easured for f released ES 202 Report during the year in which Agreed Average Wage i being purposes of the Grant Agreement. As of the Effective Date of the Grant Agreement, the Agreed Average Wage based on AWI's most romt ES 202 Report (2004) is $46,965 (130% of $36,127) the average private sector wage in Orange County, Florida). The term "wage' includes all wages, salaries, commissions, bonuses, drawing accounts (advance's to employees against future eanungs), prizes and awards (if given by employer for employment), vacation pay, payment to employees of difference between regular pay and jury pay, Payments to' employees temporarily absent while in military service, wages earned before death but paid after death, dismissal pay, sink pay (not made under a plan or system) and supplemental payments (difference between workers' compensation and employee's salary). «proved Architechual Cam" shall mean certain restrictions, limitations and design criteria for development and eonstrucdon of improvement within the Lake Nona DRI adopted pursuant to the Master Declaration. "A roved DMisn gram Pro" shall wean the Space Program, schematic design end construction schedule established puamwt to the terms of the Development Obligation Agreement 4 ^� for the Permanent Facilities. "pre_ hitect , shall mew mean the architect, including its employew, agents and subcoutraotors, retained by Burnham or the Project Manager to provide professional design and engineering services for the Temporary Facilities or for the Permanent Facilities under an Architect Agri « fit, A m=Mnt" shall mean the Consultant Contract between Burnham or the Project Manager and Architect, as same may be amended from time to tune. "Av ' able Fes" shall mean the Grant Funds (inclusive of any interest on such funds escrowed in the Account), less any and all amounts previously expended or committed for the Permanent Facilities from such funds pursuant to the terms of the Development Obligation Agreement and the Grant Agreement, or expended, committed or budgeted from such funds for the Temporary Facilities under the terms of the Chant Agreement. "Ease Funding A Q t I Shall mean the initial amount of the Tier 1 Funds contributed by the Funding Parties to the Account, in the amount of $7,000,000, in accordance win PartV.A.3.a. of the Orrant Agreement. °°doggy Creek CDD ' shall mean the Boggy Creek Improvement District, 1. 917871W28 DHJ wy == &� AM •_ 198 nod Default" means an event of default under the Bond Documents which (a) would entitle the County of San Diego or the Trustee under the Bond Documents to exercise remedies under the terms of the Bond Documents, (b) has not been cured or waived, and (c) would reasonably be. expected to have a Material Adverse Effect; provided that such Bond Default shall cease to exist if any remedies exercised upon an uncured event of default have been rescinded and annulled under the terms of the Bond Documents. "Bond Do means the Installment Purchase Agreement and Installment Sale Agreement between Burnham and the County of San Diego and the Tmst Agreement among Burnham, the County of San Diego and the Trustee named therein, each dated as of February 1, 2006, as may be amended. "Bonds" shall mean the payment and performance. bonds required pursuant to the Development Obligation Agreement. `Bud I shall mean the reasonable and probable total cost of the design, planning, permitting; and construction of the Permanent Facilities, as estimated by the Project Manager, which shall be subject to adjustment in accordance with the terms of the Development Obligation Agreement. The Budget shall include the Contingency and the Laboratory Allowance, which shell be separately budgeted for and reserved in accordance with the terms of the Development Obligation Agreement ` ' shall mean Burnham Institute for Medical Research, a California nonprofit public benefit corporation. "Burnham and' shall mean approximately fifty (50) acres of land located within Lake Nona South, in the approximate location shown on Uufbit. `B" to dw Grant Agreement, to be donated by LNLC in accordance with the Grant Agreement and the Gift Agreements. " IM ess Day" shall mean a day (other than a Saturday or Sunday) on which banks generally are open in Orlando, Florida for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system. ' winess Plan" means the business plan of Burnham for its Florida operations, which includes an initial budget and an organizational plan, and may include, among other information, strategic goals and objectives, general research and development information, and status reports. The Business Plan shall cover the first 10 years of Burnham's operations in Florida. The Business Plan shall include a proposed budget, including a staffng plan, an equipment purchase budget, and proposed operating expenses. The staffing plan shall identify the number of Jobs and estimated salaries to be funded in Florida. A copy of the Business Plan as of the Effective Date of the Grant Agreement is attached hereto as FaMbit "A" and incorporated herein by this reference. The Business Plan may be amended subject to and in accordance with the applicable provisions of the Grant Agreement. ' CQD' shall mean the Boggy Creek CDD or any other community development district created by LNLC having jurisdiction over the Permanent Facilities Site. 2. ORVY EA+.ES, N"79., 3175=8 DW dJ 282/2007 B•.32 AM X13 °Ceased 'o "shall mean, for each Report Period during the Measurement Period, the situation where Burnham's total number of Jobs created and maintained at theme tt X50°/0) Facilities or Permanent Facilities as of the end of such Report Period l3'ournham was o have created and o£ the total number of Jobs, measured in the aggregates rt period as set forth in Burpham's maintained in Orlando, Florida as of the end of such Ree same as for fiscal year, 2016). For Business Plan (with fiscal years after fiscal year 2016 being example, in June 2010, Burnham would be scheduled to have created a total of one hundred twenty-one (121) Jobs. If the number of Jobs at Bumbom's Florida location as of such date was sixty (60) or less, Burnham would have Ceased Operations for Purposes o£ this definition. For purposes of the determination of Ceased Operations as of a agopoint e wages fornallJob 7 Jobs created by paid by Burnham that would cause a moving two -year average not be counted for purposes Burnham as of such time to beless than the Agreed Average Wage may of rejecting a claim of Ceased Operations. "Certificate of Occur rc " or "�" bah mean a permanen certificate °fie Permanent certificate of crnnpletion or such other equivalent approval, as applicable, Facilities issued by the City. «ChM' "have the meaning set forth in the applicable Constru&on Contract. G�" yt „shall mean City of Orlando, Florida, a municipal corporation organized and existing under the laws of the State of Florida. `° 10 ' ' shall mean the date when the parties to the Gift Agreements exchange the instrument and documents described therm. _ "Closing" shall mean Broad and Cassel, Bank of America Centaur, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. ante" shall mean any and all agreements, and any and all «t��+�+*t+,•nications �, areri ! tints of any type, related documents, such as easements, leases, licenses, or other arrangements to the coneming, governing, or relating to the provision of any Communications Services onions of properties within the Lake Nona DRI or any portion thereof or any buildings Po ns or Parties residing or otherwise utilizing (e.g., leasing) the buildings thereon, or to any persons P portions of buildings thereon. such properties, or any portion thereof or any buildings or any "Communications ervices" shall mean any and all types of services and systems or related to, the provision of communications (e.g., voice, video or data connected with, and all types of voice services, including local rvi seces), including the following: (r ) any telephone service, long distance telephone e� service, b he Federal Communications Commission; types types of "cable service," as such term is d Y (iii) any and all types of video services, including multi- channel video service, broadcast types of Internet streaming, video over 1P s interactive video ssveMces, voice over Ip services, and video internet services, including high -sp and all types of baseband over IP services; (vi) any and all types of broadband services; (Vii) and � types of telemedicine services; (viii) amy and all types of narrowband services; (x) y 3. - y3j02 M DW ON 212=007 9= AM �.. _/ � 98 services or other communications - related services that are utilized by health care providers or health care facilities; and (ix) any and all types of security monitoring services. �VMg ctigQ Cow ate' shall mean any and all construction contact(s) for the construction of the Temporary Facilities or any'portion thereof (to be entered into from time to time by and between Burnham and any Contractor), or the Permanent Facilities or any portion thereof (to be entered into by Burnham or the Project Manager and any Contractor t clecby the as such Manager in accordance with the Development Obligation Agreement), applicable, 'Coltruction Contract may be amended or replaced from time to time. The term "Construction Contracts" shall also include the "Prime Construction Contract " «C`�stiuction t",ontrac+ rk,cmments" shall mean the Construction Contracts and all amendments thereto incorporating the final, constructible plans, specifications and all other reasonably necessary documents for the design, planning permitting and construction of the Permanent Facilities, and shall include the. Drawings and Specifications, and all Change Orders executed or issued subsequent to the date of the Construction Contracts. I n" shall means any person(s) or entities .engaged by ,the Project Manger or B=ham responsm'ble for services related to the construction of the Temporary Facilities or Permanent Facilities such as those services in connection with enviromrnental analysis, Pre construction, owner's representation, cost estimation, scheduling expediting procurement, insurance, value engineering services, inspection, materials testing and other similar services related to the accounting, doanmeatetion, inspection, perm WA& management, testing or construction of the Temporary Facilities or the Permanent Facilities. « �tant Sores' shall mean the contracts) to provide services in furlberance of the planning, design, pcmitdng, anal construction of the Temporary Facilities (to be entered into by Burnham and the Consultant(s)) or the Permanent Facilities (to be entered into by and between the Project Manager and the Consultants) selected by Burnham or the Project Manager in accordance with the Development obligation Agreement), as such Consultant Contract may be amended or replaced from time to time. shall mean ten percent (10%) of the estimated total cost of the design, planning, permitting and construction of each of the Temporary Facilities and the Permanent Facilities until such time as the Prime Constnwtion Contract and/or other Stipulated Sum contracts are fully executed, at which time the allocable portion of Contingency applicable to such cost may be reduced as to the executed contracts to four percent (4%) of the contract price. Contingency funds for the Temporary Facilities may be used to fund cost overruns on the Temporary Facilities, and Contingency fiords for the Permanent Facilities may be used as provided in the Development Obligation Agreement. The unused portion of the Contingency for the Temporary Facilities and any other part of the Two Million Dollars ($2,000,000) reserved for Project Cost far the Temporary i Facilities shall be retained for use in the design, planning, permitting and construction of the Temporary Facilities provided that the total Project Cost for the Temporary Facilities does not exceed Two Million Dollars ($2,000,000), and when Burnham no longer needs such funds for the Temporary Facilities, any such remaining amounts shall be available to pay Project Cost for the Lm ORLIIREALES7�OB6i79.4 9179T10D?9 DFGI dh171T711007!'.A2 AM i 9B permanent Facilities, The unused portion Of iin the ncy for pmcnt� motion Ag�ties be transferred to the Laboratory Allowance provided «�� shall mean any contractor(s), duly licensed Pursuant to Chapter 4 w Florida 4, by () Bumham for construction and/or managing the construe ion within the Statutes, engaged 1 and (2) Burnham or the Project Temporary Facilities pursuant to the Constivction in. accordance with the Development Obligation Agceesnmty responsible for constructing M portion thereof, pursuant to the and/or' managing the eonsftcdon of the Permanent Facilities, or any p Consauction Contracts. The term "Contractor" shall also include the "Prime Contractor." "Cost Ov reruns" shall have the meaning set forth m Article VI of the Development Obligation Agreement. � " shall mean Orange County, Florida, a charter «nmtY and political subdivision of SAMt� the State of Florida. `ca " means a calendar day consisting of a twenty -four (24) hour period and Florida time, and includes Saturdays, Sundays eamding at 12:00 midnight Orlando, falls due on a Day except that in the Da such bligatio shall deemed due on n mess Day mow• drat is not a Business y, and enginea* of the ,D' shall mean the design contract(s) for betwe Burnham and any Temporary Facilities or any portion thereof (tea be entered into by and Design ary Fa i lines )) or the P Facilities or any portion thereof (to be entered into by and and the Design Professlonal(s) in accordanoa with the ^� be*-= Burnham or by the Project Manager � laud from D—eve oprrse,nt Obligation Agreement), as such Design Conftr -t 3! amoindod reP time to inane. "Deli fessio a " shall mean any design professionals) or engineer(s), including any _.____ b Burnham for the design of the Temporary Fa011% or Architect and Project Engineer, engaged y to the terms by Burnham or the Project Manager for the design of the Permanent Facilities pursuant of the Development Obligation Agreement. "Dave oument Obliaution Agreement" shall mean that certain Development Obligation Agreement (Permanent Facilities) by and between LNBC and Burnham, as descxlbed in the Grant ended in accordance with its terms, or any subsequent agreement Agreement and as it may be am obligations, and conditions entered into n� with substantially the some material terms, Parties, such apFrOv Burnham and another Project Manager; if approved by the Funding be unreasonably withheld. "Dave �ment�" shall mean the City of Orlando Third Amended and Restated Development Order for the Lake Nona Development of Regional impact dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, of the Public Records of Orange County, Florida, as =ended from tune to time. 5. ow.,w�u �s 4'nMz a r,e�2e ow tiro > a3x a►n I , 9B "Dispute Resolution Panel" shall mean a standing panel of three members designated to resolve disputes. between the Parties under Part V.A.3.g. of the C.rrant Agreement. The Project Manager and Burnham shall jointly select one member of the panel. The Funding Parties shall jointly select the second member of the panel. The two members so selected shall jointly select the third member of the panel, who shall act as the panel chair. So long as LNBC is the Project Manager LNLC shall not play a role in selecting the Funding Parties' panelist. Each panelist shall be an appropriately qualified third -party neutral who is not a current employee of or current consultant to any of the parties. Each party shall bear the cost of its respective panelist and the non-prevailing party in any dispute submitted to the panel shall bear the cost of the third panelist. In the event a panelist is unable to serve, his replacement shall be chosen by the parties that selected him. "Drawings 9d Sp i nations" shall mean the construction drawings for the Temporary Facilities or the construction drawings for the Permanent Facalities, as the same may be changed from time to time in accordance with the terms of the Development Obligation Agreement, "Draw Reaumel shall mean a request for disbursement of Grant Funds from the Account for Project Costs made by Burnham or the Project Manager to the Funding Parses, together with supporting documentation, which shall include a copy of all applications for payment, invoices or receipts certified by Burnham or the Project Manager, as well as copies of the documentation required in connection with payments due under the Dedga Contract, the Prime Construction Contract, the Construction Contracts or in respect of payments due to Vendors, Consultants or others. Such application shall include, as applicable, the certification set forth in Attachment F to the Development Obligation Agreement (or a comparable certification if made by Burnham for any Project Costs for the Temporary Facility) and shall include, as applicable, a copy of the consolidated and reconciled pay application submitted to Burnham and/or the Projed Manager by any Contractor, certified by the applicable Design Professional and any additional required documentation. Documentation submitted with each Draw Request shall be sufficient to establish that amounts requested for payment were actually insured for Project Costs. Each Draw Request shall include the appropriate waivers and Releases. Each Draw Request shall reflect the appropriate Retainage under the applicable Construction Contract, 4413mw 'shall mean the initial Draw Request submitted by LNBC the month following the initial funding of the Account and entitled "Draw Zero, 2007," for reimbursement of Project Costs incurred prior to the date thereof. "Effective Date" shall mean the date set forth in the first paragraph of the applicable agreement or otherwise specified as the date on which such agreement becomes effective. "Enabling Statute" shall mean Chapter 2006 -55, Laws of Florida, codified as Section 288.1089, Florida Statutes (2006). "Entitlements" shall have the meaning set forth in the Gift Agreement (Permanent Facilities) with regard to the Permanent Facilities Site or in the Gift Agreement (Surplus Land) with regard to the Surplus Land, 21 ML1VWA1 F8T11Mn.4 9178?/ M DW dN WNW 092 AM 9 B « endmen " shall mean any amendment to the Development Order that En 'tl a is A_�____ -- would increase and /or modify the entitlements for the entire prop Nona DRX .g described w for the without limitation, changing the Proposed uses (e.g., Gift Agreements, including; shall not (and shall cause its affiliates development of a hospital); provided, however) that LNLC not to seek or approve a modification ci ties or development the Development of ethe BeOrder pus for the preclude operation of the Permanent Facilities or dev pm Permissible Use. health and/or r„t „w, eutal Layie' shall mean any federal, state or local environmental, directive define, permit or regulation, requirement, order, ordinance, � the future. The perms_ woad law, rule, g and as amended, enacted, issued or adopted permit condition, but is not limited to, the Comprehensive Envirosanental terns Environmental Laws includes, Act of 1980, as amended, and similar state or local laws. Response, Compensation and Liability shall mean au material permits, authorizations, licenses, uFncrironmental P� Environmental Laws for the continued oonduct of approvals, and � Ae��` under any operations in the manner then conducted. shall mean the party designated from time to ,��t” as to the Escrow Agreemand the Escrow went, and as to the Gift time as such under the terms of the Grant Agreement 390 North Orange Avenue, pgCe�ments shall mean Broad and Cassel, Bank of America Center, Suite 1400, Orlando, Florida 32801. the Pbta�ng t" shall. mean that certain Escrow Agreement by � among ` A te- into simultaucously with the � A�°'� Parties, Bumbam and the Escrow Agent enta'ed es and the Temporary Facilities shall be pursuant to which the contraction of the Permanent Faciliti funded' wm y estimated to be «�aQrm, Tar et Coimstructi' shall mean the the amounts expended, or budgeted for the $79,000,000, derived by deducting Facilities from the Chant Funds, which is the current estrm�o be construction of the Temporary from which the Contirrg� y (estimate of the complete the constmdxon of the Allowance will b Facilities, in accordance with the terms $7,g00,OOO) and the Laboratory Development Obligation Agreeament. ea the + ant installed or used in comection with ►' shall man the fixtures and ell Temporary Facilities and the Permanent F acilities- t in A ee" shall mean the satisfaction of all of the conditions to Final Payment set '� forth in the Development Obligation Agreement. + , mean final completion of the Permaanent Facilities, as evidenced t C'omvletiomn shall of Occupancy by the City, Engineer and the issuance of a Certificate by a certification by the Project Engin «F' payment" shall have the meaning set forth in the Development Obli gation Agreement 7. at�iaT1002e� odi"W"MW a= AM I � 98 Greeaeway improvement District Capital Improvements for Infrastructure Page S' source for distributing potable water and fire protection water to all of the development within the project. The project's reclaimed water distrilnWon system will include a series of intzreormected and loopod reclaimed water mama that rata from the northwest corner of the developed property connected to as vdansion of the major distn'bution system . from the Mdaft City of Orlando Conaery II rwhimd water system %.ilea the potable winter Mahn the reclaimed water mama will rmn tbrough all of the piece► roadway oor -AM heroim'befow desaramd and oomu* ed to do mrtmmr; boundaries of the property iu *U direction,. The reclaimed water distribution system will serve as a source ft diddluting nonimbble ( irrigation) water to all of the development witi>m the project. The development project's sanitary sewer ayateur includes a network of gravlt3+ ooile don sys0em4 wastewater Vitt stodons► and sard*y force maids eogna.&g to wdadng Sailities located on the northwest portion of the project a4scent the Eaatem Beltway that arc =ready owned and operated by the City of Orhmdo. These sanitary sewer facilities will act as the coIIecdm tranembsion and distnbution systems for development of do project. AD sanitary sower facilities will be oonahucted wilbin the primary roadway fi&sxtracturc idandfiod in Exhibit "A ". VL ELECTRICAL DUCT BANK The wfrastnrcturo roadway eomdcn wM accommodate a plaslie pipe duct bank rystotn. This duct bank system will enable the efficiarrt distribution of electric power ' to the development. The proposed duct bank system will run within the rights -of- way or cu mints established for the roadway corridors and be pboed as part of the initial roadway conshuction to significantly limit the amount of disruption iroquired to provide these needed services to the development project as eon*uction progresses. P: tiP�oJ 3D0�173116�EAiLidm�lrlod�Dr'001 rIPIFOS,duo " Torce jeure Dent" shall mean an event causing delay occasioned by a cause or causes beyond the control of the party whose performance is so delayed, including, without limitation; adverse weather conditions; earthquake; acts of God; war; war -lice operations; civil commotion; . riots; sabotage; terrorism.; governmental (except County or City as to each such party in their j respective proprietary capacities) or judicial action/inaction, regulation, legislation, or controls (including permitting or approval delays); third party lawsuits; moratoria; labor disturbances; or i material shortages. The parties acknowledge and agree that a party's incompetence or failure to deploy reasonable resources to meet its obligations under any agreement shall not be deemed to constitute a Force Majeure Event as to such party. " ndua$ ParW' shall mean eacb of the County, City and LNLC. Collectively, these entities maybe termed the "Pbnding Panties." 'Tending Parties Wit' shall mean the agreement by and among County, City and LNLC setting forth the rights and obligations of the parties with respect to the Permanent.] ?adlities Site arising from or in connection with the Grant Agreement. shall mean accounting principles generally accepted in the United States of America, applied on a consistent basis. Vift Ayenwtt {Permanent Facilities)" shall mean the gift agreement entered into by and among LNLC, County and Burnham, with limited joinder by LNPH, for the donation and transfer of the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit "E:' ,,cat ent (Surplus )" shall mean the gift agreement entered into by and between LNLC and$urnham, with limited joinder byL1�PH� for tin donation and transfer of the 4_ r Burnham Campus less the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit "D." "Srift Aereemea,, shall mean the Gift Agreement (Permanent Facilities) and the Gift Agreement (Surplus Land). 44govMMenig AuthoW, shall mean any board, bureau, commission, department or body of any municipal, county, state or federal governmental or quasi - governmental unit, or any subdivision thereof, having or acquiring jurisdiction over the Temporary Facilities, the Permanent Facilities or the Burnham Campus or any portion thereof or the management, operation, use or improvement theawf, "Governmental Lic ses„ shall mean all certificates, 8111110rizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities. "Grant Anent" shall mean that certain grant agreement by and among the Funding Parties and Burnham, including all Odubits, amendments and supplements thereto, as it may be amended in accordance with its terns. 8. ORLjVWALE3rJW479.4 3176710024 DHJ dl j 71Y rAN e= AM „Grp F ds” shall mean the amount of Eight one Million Donate ($51,000,000) in cash provided to Burnham by the Funding Parties to be used for project Cost in accordance with the Grant Agreement. '- ss F1�r Area" shall. have the meaning provided in the standards of the American Institute of Architects. -U round Leas o' shall mean the ground lease entered into by and between County and Burnham for the lease of the Permanent Facilities Site (for use in accordance with the Permissible Use resWc ion, as defined therein), as it may be amended in accordance with its terms. atdous Substances" shall mean any hazardous or toxic substances, materials or wastes, pollutants or contaminants regulated by Environmental Laws, as now or may hereinafter be amended, including, but not limited to, petroleum products, biomedical waste, radioactive materials, flammable or corrosive substances, explosives, polychlorinated biphenyls and asbestos. ,sbn act ees ,shall mean transportation impact fens or other similar impact fees assessed by any Governmental Authority in connection with the development of the Burnham Campus. «fie" SJmall mean the interchange constructed at the intersection of Lake Nona Boulevard and State Road 417 a/k/a the Greeneway. "Job Commit m> r 9ha11 have the meaning set forth in the Ground Lease. "Job ' shall mean full -time jobs and full-time equivalent jobs (based one 35 hour work week), and Otber Personnel, as defined herein; .provided, no 'nonemplpyee person providing plying, design, pecmitttng, construction or other- similar services related to the Temporary Facilities or the Permanent Facilities shall qualify as a Job hecreunder. 1n tabulating hours worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be, included. "Other Personnel" shall mean (1) employees of contractors, joint venture partners or licensees operating under agreement with Burnham that are PerbIMM9 functions or services for Burnham and/or its affiliates in Florida in Bumbam's facility in Orlando, Florida and other Central Florida locations consistent with the Permissible Use, and (b) persormel engaged directly by Burnham as independent contractors to whom Burnbam issues an IRS Form 1099 (only wages paid by Burnham to such Other Personnel shall be included in wages for purposes of calculation of the moving two -year average under Part VI-E. of the Grant Agreement). In addition, to be counted towards Jobs, Other Peraormel shall: (a) perform ongoing services or functions for Burnham in the Temporary Facilities or Permanent Facilities that might otherwise be performed by employees, but which Burnham has elected to procure through the services of other Personnel due to the specialized .nature of the expertise required or other business purpose, and/or perform their work for Burnham substantially in the Temporary Facilities or Permanent Facilities (other than customary business travel); and (b) not perform services or functions limited to terms of less than six months; and 0 CM64,2A 51792MM DW cry z221 oo7 892 AM 96 (c) not constitute more than 25% of the total Jobs. . � and committed to by the.prospective employee or Other Jobs shall include binding offers accep be deferred Persomiel even though. the employee's or Other Personnel's e Other personnal's� acceptance of the offer. by up to' one (1) year from the date of employee b virtue of a merger or acquisition. of This definition excludes any position attributable to Burnham Y an existing business or operati on in Orange County, Florida. For clarification, Other Personnel and B�' employees shall only 'be included in Jobs on a equivalent basis based on a 35 hour work week For example, if a Burnham full-tttnc full-time employee spends 50% of his time in California and 50% of his time in Orlando, Florida in a given year, that employee would count as 0.50 of a Job, if a Burnham consultant that constitutes an Other Personnel spends 12 hours per week per%rming work for Burnham in Orlando, Florida in a given year, that consultant would count as 0.34 of a Job. which shall initially 'be up to ten pmt "T p�+oratory 1�iowance " shall mean the sum, Design Phase (as (10 %) of. the Available Funds existing as of the. condusion of the Preliminary defined under the Development Obligation Agreanent), which sum shall be determinod by Burnham in its reasonable discretion during the Preliminary Design phase and reserved under and . on Agreement and shall be available to subject to the limitations of the Developmeint Obligati eat and the Development Obligation Burnham pursuant to the tAnns of the Grant Agin on of laboratory facilities within the pgieement for (a) the oompletion/installation or reoon%gureti ant that were initially utilized pent Facilities, which may include furniture, or equipment in ronnedion with the Temporary 1186 OS and can be relocated to the pe�tnanent Facilities, and facilities within the Permanent Facilities are at 100% completion based upon (b) after the laboratory fated under the Business ply and required under the Grant capacity for floe 303 Jobs oonteaip t Facilities Sitc, including Agreement, for payment of CDD capital assessments for the Pamanen ent ' (Permanent portion of any Loan therefor under the Gift Agreean repayment of all or any p assessment for the permanent Facilities Site, -ivr Facilities), and after payment of each CDD capital eat of all or any payment of CDD capital assessments for the Surplus Land, including repayment portion of any Loan therefor under the Gift Agreement (Surplus Land)• No DRl" or "Y AkP Nona D el ' shall mean property that is subject to the Development of Regional Imped approved by City of Orlando and the State of Florida known as the "Lake Nona Development of Regional Impact" pursuant to the ternns of Development Order, or the `Lake Nona Planned Development' pursuant to the terms of the PD,-within whirr the Burnham Canopus shall be located. «r A e Nona South" shall mean that portion of the Lake Nona Development lying south of the Greeneway- �,e al R enusrP.II1CS1tS" Shall all applicable laws, ordinances, rules, mean regulations, orders, ants, decisions, decrees, standards, and requ irem entS. i LLC, a Florida limited liability company. "I.. NBC" sha11 mean Lake Nona Boggy �1� 10. �gTVO!{79A anarl stn DW dN oor eat /un s C , shall mean Lake Nona Land Company, LLC, a Florida limited liability company. A ff' shall mean Lake Nona Property Holdings, LLC, a Florida limited liability company. "M999 A s ciation" shall mean the master property owners' association created pursuant to the Master Declaration. "Master peclaratiod' shall mean the master declaration of covenants, conditions, restrictions and easements for all or a portion of the properties within Lake Nona South lying generally west of the Interchange as determined by LNLC. "Material. Adverse Effect" shall mean (a) as of the Effective Date of the Chant Agreement, a material adverse change in or effect on the business, condition (facial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to substantially impair Burnham's ability to conduct its core operations or to fitlfill its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement, and (b) after the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to prevent Burnham from fulfilling its material obligations,. as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement. "rjq@Uj3neMt Period" shall mean the period during which the number of Jobs and the moving two -year . average of the wages paid by Burnham for all Jobs created by Burnham are measured, which period shall commence Tiny 1, 2009 and shall end upon the last day of the Term of the Ground Lease, The Measurement Period may be extended as provided in Part XII of the Grant Agreement. "Memorandum of Funding Parties Agri" shall mean the memorandum of the Funding Parties Agreement to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida. "Memorand�m of Ground Le—w I shall mean the memorandum of tke Ground Lease to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida promptly after the Ground Lease is executed. "Minimum Reauir�mne�" shall mean the minimum progmmmatic requirements for the Permanent Facilities, set forth on Exhibit "B." Lion" shall mean the option to purchase the Permanent Facilities Site granted by County to Burnham pursuant to the terms of the Ground Lease. " O'17M Agreement" shall mean the innovation Incentive Funding Agreement between the State of Florida's Office of Tourism, Trade and Economic Development and Burnham which 11. ORLI ALEBTbMM 3178?WU DHJ c" ==7 3;3Y AM 9Bawardodundar controls the obligations of Burnham and O'T in a with with its terms; provided that no such the Enabling Statute, as it may be edam add ants with the Funding Parties unless the Funding amendment shall affect any j., Parties consent thereto. shall mean the parties to a p articular agreement. ante Establishing'the Zoning Classification as PD, �, shall moan that certain Ordin . Planned Development, and C, Conservation, Districts on the Lake Nona Development Regional Impact as Adopted by City Council dated October 25 orange County, Florid amended Records Book 7699, Page 3056, of the Public Records g 2005 in Official Records by that certain amendment dated July 25, 2005 and recorded Augustorida, as amended from time Book 8120, Page 3662, of the Public Records of Orange County, to time. „ amendment to the PD submitted to the City for review ��n�lent shall mean any sever, that LNLC shall not (and and approval, whether before or after the date hetvaeo of Pla° PD Amendment which would preclude shall cause its affiliate$ not to) seek or aPPro of the Buhnham Campus for the Pamissiblo operation of the Permanent Facilities or ` Use: °�emap t iies" .shall mean (i) the approximately one hundred seventy-five lit thousand (175,000) square feet of 01089 Floor Area in ono or more buildings on the permanent employees ees and guests in accordance with the Facilities Site for the use and benefit of Burnham pursuant Y to the Gram Agreement and the �Penznissible Use, which is to 'be constructed may reduce the Gross • provided, however that Buriahmn y ._. , Development Obligation Agreement; P esrcbnt (10 %) without the 1 Floor Area of the Permanent Facilities by an amount not to exceed surface and subsurface unaniumous approval of the Funding Parties; and (ii) all adjacent � subsurface infrastructure and utilities and all related on -site improvements) including par mace water l� aping, hardscaping, signage and irrigation, but specifically excluding rlmoffJdrainagehretention /detention facilities. °`Permanent Facilities C'cmmletion Date" shall mean the date that is thirt3► -six (3� months from the Effective Date of the Grant Agreement or such other date as may be agreed to in writing by the Funding Parties and Burnham. 6 ermanctii 'es Site" shall mean the approximately 12 acre parcel of real property within the Burnham Campus on which the Permanent Facilities shall e'located, as shown on Exhibit "C" to the Grant Agreement- &T ermissi le s " shall mean, subject to completion of the Permanent and shall be subject es permitted on the Burnham Campus, which shell ed limited a the following and research and applicable laws: (a) medical, life science and diagnostics, to compliance with all development, (b} light manufacturing in the life sciences or medical field, st-g including a a education, devices, pharmaceuticals and reagents, (c) undergraduate, graduate and post gra inchding classrooms and lecture halls, (d) reseamcB facilities related to a medical hospital, (e} 12. orntv�r�.� sa dnEwd"2U "&MAM ancillary related research - oriented healthcare and life science uses, and administrative uses related to the foregoing, and (f) support services for the foregoing which may include, but is not limited to, a cafeteria/restaurant, child day care center and fitness facility for use by Burnham's personnel and employees and Burnham's sublessees' personnel and employees. "Permits" shall mean all building, development and environmental permits necessary to the proper execution and completion of the Work which are legally required, including, without .limitation, SPMP and site plan submissions, genera] building permits, street access permits, easements and all other permits, licenses, inspeotions, fees and the like required to complete the Permanent Facilities, unless specifically stated otherwise in the Construction Contract Documents, sewer (sanitary and storm), water, electrical power, telephone, data, cable television and gas tap fees regarding utility connections and extensions, utility meter installation and hook -up charges, and other charges assessed by the local entities having jurisdiction,- permits for elevator, mechanical, plumbing, electrical and all other trade work; and all partial and final certificates of occupancy and other permits necessary to permit the lawful occupancy of the Permanent Facilities by Burnham. "permitted Exceptions" shall have the meaning given such term in the Gift Agreement (Permanent Facilities) or Gift Agreement (Surplus Lanei), as applicable. "Person" shall mean an individual, estate, trust, partnership, limited liability company, corporation, Governmental Authority or other legal witity. Trimatry„Operatiang" shall mean the location in the State of Florida at which no less than eighty perocht (8o %) of Burnham's Florida employes are employed. "Prime Conshudim Can a} " shall mean a Construction Contract with the Prime Conhac for that is, in the case of the Permanent Facilities, consistent with the teams and conditions of the Development Obligation Agreement. 'Trims Gozrtracxor' shall mean either (i) a construction manager operating "at ride' for the completion of the Work or (ii) a general contractor operating with a Stipulated Stun contract for the completion of the Work; either of which, in the case of the Permanent Facilities, will be engaged by the Project Manager to be responsible for constructing and/or rdanaging the construction of the Permanent Facilities pursuant to the Prime Construction Contract. The Prime Contractor for the Permanent Facilities shall oversee and be responsible for all Contractors performing Work on the Permanent Facilities Site, except, at the option of the Project Manager, the Contractor(s) responsible for that portion of the Work related to earthwork, stormwatea ponds and master drainage systems, master utilities, landscape and hardscape and equipment famished by the Project Manager. "Prime Rate" shall mean the then- existing prime rate set forth in the Wall Street Journal or comparable paper of national circulation. " Project Cosy' shall mean all actual costs resulting from (a) amounts incurred with respect to the Design Professionals pursuant to the Design Contracts; (b) amounts :incurred with respect to the Contractors pursuant to the Construction Contracts; (c) amounts incurred with respect to Vendors and Consultants pursuant to their contracts; (d) amounts incurred with respect to Architects pursuant 13. ORLIU ALESTWM70A 91762== DPW d'1?tZ7OV 802 AM to their contracts; (e) fees and expenses for construction permits and approvals, Impact Fees, connection and capacity charges and the like; and (t) other costs or expenses (including attomeys' fees and expenses incurred aft the Effective Date of the Grant Agreement), except for such fees and expenses as may be wourred by Burnham in any claim, lawsuit or proceeding against the Funding parties, or any proceeding asserting a violation of any Federal, State or Local statue, law, code, ordinance, rule or regulation, or any proceeding relating to any fines or penalties assessed against Burnham in connection with the construction of the Permanent Facilities, or any fees attributable to any lobbying efforts), provided such costs are directly attributable to materials and services necessary for planning, design, permitting, and construction of the Temporary Facilities or the Permanent Facilities or F &B installed within the Temporary Facilities or the Permanent Facilities. In addition, after Final Completion and after the laboratory facilities within the Permanent Facilities are at 100' /o completion based upon capacity for the 303 Jobs oontemplated under the Business Plan and required under the Grant Agreement if them are Available Funds remaining in the Account, "Project Cost" shall also mean actual costs for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Qft Agreement (Permanent Facilities), and if them are Available Funds remaining in the Account after payment of such CDD capital assessments for the Permanent Facilities Site, actual costs for payment of CDD ayital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the OM Agreement (Surplus Land). Notwithstanding the foregoing, "Project Cost" shall not include costs or expenses for items or services that are not necessary for the planning, design, construction or permitting of the Temporary Facilities or Permanent Fatalities or for payment of CDD capital assessmens in accordance with the immediately preoeding sentence, including without limitation kart, alcohol, travel or per diem beyond customary standards, and lumuy accommodations. Project Costs shall be reimbursable by Draw Requests. "Projgot P,n ineer" shall mean the engineer retained by Burnham or by the Project Manager from time to tune, in the case of the Permanent Facilities, in accordance with the Development Obligation AVeement, for the performance of the Work. "Project Manager" shall mean LNBC or any other project manager retained by Burnham to manage the design and construction of the Permanent Facilities pursuant to the Development Obligation Agreement. "Provid ' shall mean any Person providing Communications Services on or to the Burnham Campus or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or utilizing (e.g., leasing) the .any of the properties within the Lake Nona DRI, or any portion thereof or any buildings or portions of buildings thereon, which Person may be, or may subsequently become, affiliated with L NLC. "Pmmchliist Items" shall mean those minor items which are at variance with the Construction Contract Documents and the Drawings and Specifications as of the Substantial Completion Date and which for achieving full completion in the aggregate will not exceed the Puncbfist Period except as otherwise specifically provided in the Development Obligation Agreement, and which do not materially interfere with the use and occupancy of any part of the Permanent Facilities for its intended use. Prior to commencement of the Punchlist Period, the Architect and the Project 14. OMMEME3MMA 577620= OW d *212812007' a'32 AM I 98 � Manager shall prepare a written description of the form and scope of all Punchlist Items and a schedule setting forth the estimated time and value for completion of the Punchlist Items. "Punchlist Period" shall mean the period of time from the day after the Substantial Completion Date for each improvement to the date on which all Pund ist Items are resolved to the reasonable satisfaction of the Project Manager and Burnham, which period shall not exceed sixty (60) days, except that the Project Manager shall not be required to cause the completion within such time any items that are not reasonably capable of such completion (bat sh&U be required diligently to use commercially reasonable efforts to cause the applicable Contractor or Consultant to commence and continue with such work as necessary to finish such items as soon as reasonably practicable), so long as the fact of the incompletion of such items does not materially interfere with the use and occupancy, of any material part of the Permanent Facilities for its intended use. During the Punchlist Period, Burnham agrees to grant the Project Manager, the Contractors and the Consultants reasonable access to the Permanent Facilities Site in order to accomplish completion of the Puncblist Items and perform any other services then required under the Development Obligation Agreement. Period!' means the applicable reporting period as described on the schedule attached hereto as Exhibit "C." "des a Park" or "Res. earcb -Park at Lake Nona" shall mean the research park to be developed by LNLC and looted upon up to one hundred fifty (150) acres, inclusive of the Burnham Campus; provided, the ultimate size of and uses within the Research Park (except for the uses on the Burnham Campus which shall be the Permissible Uses) will be determined by LNLC based upon market demand. " 'na " shall be applicable to all Construction Contracts and shall mean (i) ten pmt (10 %) of the total amount of any Construction Contract until such time as Fifly Percent (50%) of the Work under said Construction Contract is complete; (ii) five percent (5 0/0) of the total amount of any Construction Contract after fifty percent (5(r) of the Work is complete until Substantial Completion of the Wor1q and (iii) two percent (2 0/6) of the total amount of any Construction Contract after the Work has achieved Substantial Completion; provided however, there shall be no retainage for amounts due to Vendors. Upon final completion of the Temporary Facilities or Final Completion, any remaining RoWnage shall be distributed as provided in the Construction Contract and the Escrow Agreement. "Scope of Nork" shall mean the construction of the Permanent Facilities; (i) substantially in accordance with the Construction Contract Documents, and (ii) consistent with the approved SPMP. "security A aee,�ent' shall mean Exhibit "5" to the O'ITBD Agreement. "Space Program" shall have the meaning given such term in the Development Obligation Agreement. "Special Conditimns" shall mean the conditions set forth on Attachment B to the Development Obligation Agreement. 15. OALI1APJU.R8716 SOL4 31782x0026 ONJ cN 2/1?lAU 1122 AM Down Schedules" shall mean the schedules for the timing of the use off the ut Funds as described in the Grant Agreement, which schedules will be prepared by assistance from the Project Manager in accordance with the terms of the Development Obligation Agreement in the case of the Permanent Facilities - , " shall mean the final, non - appealable Spedfie Parcel Master Plan for the development of any porti on of the Burnham Campus, as approved by the City. ` "Stipulat d_ m" shall mean a stipulated or fixed price, or guaranteed maximum Price, for Project Costs under the Construction Contracts or purchase orders. The Stipulated Simi includes all amounts in Draw Zero for the Permanent Facilities. "S bco ' sban mean any subcontractor in privity with any Contractor or any other Subcontmctor, at any tier. "Snblea inn &e bic bns" shall mean that subleasing, and for -profit activities in the Permanent Facilities must be consistent with the Permissible Use and have the prior written approval of the Funding Parties, which consent shall not be unreasonably withheld, and, commencing on the fifth (5t) anniversary of the issuance of a Certificate of Qccupancy for the permanent Facilities, must not comprise more than twenty five percent (25 %) of the use within the permanent Facilities based upon the total square footage of the permanent Facilities as of the date of measurement. The foregoing Yin tatzon shall not begin until the fifth (5� anniversary of the issuance of a Certificate of Occupancy for the Permanmt F= ties in an effort to allow. Burnham the time and opportunity to staff and occupy the Permanent Facilities and shall only apply during the term of the Ground Lease; provided, the foregoing shall not serve in any way to limit or terminate the obligation to comply with the Pcrmissible Use which is intended to and sball run with title to the Permanent Facilities Site. "substantial Cosmnl a.'nT, , .shall mean the level of completion of an improvement wherein such improvement has no material defects or deviations from the approved plans therefor and can be operated for its intended use. as certified by the project Engineer, and such improvement has received either a permanent or temporary certificate of occupancy such that Burnham may take possession of and occupy the improvement for its intended use or a certificate of 0010011601101 its equivalent from the appropriate governmental entity, as applicable. "Sur lu " shall mean the Burnham Campus, other than the Permanent Facilities Site. `�artet Constrictions " shall mean the Chant Funds (after ded�g' from the Chant Funds all Project Costs expended, committed or budgeted for the Temporary Facilities) less the Contingency and less the Laboratory Allowance as detemdned at the conclusion oaf theme Preliminary amount Design Phase in accordance with the Development Obligation Agreenneflt; pro ' ed, of the may be adjusted following the Preliminary Design Plisse in accordance with the terms Development Obligation Agreement. earations to "Te�u porarx Facile_ "means the temporary facilities for Bmmham's Florida op be constructed pursuant to a lease and affiliated agreements between Bumham and lessor 16. or�twau�sroeeen.� 81T60 DHJ dhJ 7/Ce11o07 B= AM Independent Blood and Tissue Services of Florida, Inc. at 8669 Commodity Circle, Orlando, Florida 32819 (approximately 14,000 square feet) and warehouse space at 8663 Commodity Circle, Orlando, Florida 32819 (approximately 300 square feet) pursuanf to the terms and conditions of the Grant Agreement, or such other site in Orange County, Florida as reasonably agreed by Burnham and the Funding Parties. "7}er 1 Funds" shall mean the initial tier of the Grant Funds in the total amount of $70,000,000, to be funded'pursuant to the terms of the Grant Agreement, of which $7,600,000 shall be contributed by LNLC (10.9 %), $29,700,000 shall be contributed by City (42.4 %) and $32,700,000 shall be contributed by County (46.7 %). 'Tier 2 Funds" shall mean the second tier of the Grant Funds in the total amount of $6,000,000 to be funded pursuant to the terms of the Grant Agreement, of which $3,000,000 shall be contributed by City (50 %) and $3,000,000 shall be contributed by County (50 %). "Tier 3 Funds" shall mean the third and final tier of the Grant Funds to be funded pursuant to the terms of the Grant Agreement, of which $5,000,000 shall be contributed by County (100` /6). "Transportation ImplFee Credits" shall mean any transportation impact fee credits that may be generated from or in connection with the development of the Burnham Campus or the Lake Nona DRI. "Trigs" shall mean the average daily trips in accordance with the Development Order then in effect, as the same may be amended from time to time. "ycadgel shall mean any vendor of construction materials, including but not limited to fixtures and equipment, with which the Project Manager, Burnham or any Contractor has a direct contract for materials, fixtures or equipment to be used in the construction of the Temporary Facilities or Permanent Fwi ities. "Waivers and Releases" shall mean the following items from the Vendors, Consultants, Design Professionals and Contractors for which payment is requested, as the case may be: (a) fully executed partial waivers and releases of claims in the amount of the immediately prior payment made by the Funding Parties (through the Escrow Agent) to Burnham. and (b) conditional waivers for the payment amounts contained im the =vnt Draw Request, in each case, for the Vendors, Consultants, Design Professional or Contractor, excepting any claims that may remain in dispute. "Warranty PLr od" shall mean the period of time during which the Contractor's warranty is in effect under the Construction Contract Documents. "Work" shall mean all obligat ions, duties, and responsibilities assigned to, or undertaken by, a Contractor pursuant to the Construction Contracts, required to complete oonstruction within the Temporary Facilities or to complete construction of the Permanent Facilities in accordance with the Construction Contract Documents. 17. 0KIV EALESrAM79A 31"20= DHJ dt421PT=T 8 -32 AM 98 Burnham Institute for Medical Research BUSINESS PLAN FOR EXPANSION to ORLANDO FLORIDA October 2006 9B 'd ME 1 EXECUTIVE SUMMARY 4 1.1 Overview 4 2 MISSION OF BURNHAM INSTITUTE FOR MEDICAL, RESEARCH 4 2.1 Background on Burnham Institute for Medical Research 4 2.2 Research Centers S 3 THE STATE OF FLORIDA 6 4 ACTION PLAN 6 4.1 Negotiate enabling agreements with the State of Florida 6 4.2 Negotiate an agreement with the State Board of Administration 6 4.3 7 Negotiate enabling agreements with all Other Interested Parties The agreements nVAssary to fond the following; 7 a) the build out of a temporary tbcility at the Florida Blood Center, and 7 b) construction of a 175,000 square foot state-of-the-art facility, and 7 c) conveyance of 50 acres of land at Lake Nona 7 d) commitment for S15MM in local philanthropic support for BIMR 7 e) commitment for S10MM in funding from the University of Florida 7 f) commitment for S27MM in funding from the University of Central Florida 7 g) access to human tissue samples generated by Florida Hospital and ORB 7 4.4 Develop key infrastructure for Burnham Florida 7 4.5 Identify key senior appointments 7 4.6 Implement a Collaboration Program 7 4.7 Implement a Graduate Program g 5 ORGANIZATIONAL PLAN g 5.1 Scientific Staff g 5.2 Administrative Staff g 2 • r r i i i 3 6 INFRASTRUCTURE DEVELOPMENT 10 6.1 Facilities 10 61 Capital Equipment 10 ! 63 Construction of Permanent Campus 10 7 INITIAL BUDGET 12 f 7.1 Statement of Activities (In 50001s) 12 { The total amount contributed by State will be $155,272,000 any variation in the budget summaries is the ! result of rounding 12 7.2 Balance Shea (in 00011) 13 73 Summary of Cash Flows (in 00015) 14 7A Revenue Assumptions 15 7.5 Expense Assumptions 16 7.6 Major Capital Expenditures - Stub Period and Year 1 17 7.7 Use of Florida Suppliers 17 8 RECRUITING 17 8.1 Recruitment Process - 17 8.2 Hiring Schedule 18 i i i 3 EXECUTIVE SUMMARY t 1.1 Overview The Board of Trustees and Executive Management team at Burnham institute for Medical Research ('BIMR') view the expansion of our research efforts to s Florida campus as a unique opportunity for the state of Florida ('Fbrida'� and BIMR. The Orlando, Florida site will be a fully integrated part of BIMR both operationally and culturally. We will take this opportunity, and the resources that k provides, to recruit world -lass scientists to work with us In the fields of cancer, infedious annudnInflammatory to anaddltl neuroscienoes and aging. In addition this expansion affords us the Opportunity research program In the area of diabetes and obesity. We also plan to develop three technology cores that will enable the transition of ouin�vitro and in vf�vo toxioologY, cihemiatrye, A�brary screening and In vivo will have cores in pharmacology. imaging. Our vision is that a bicoastal Burnham Institute for Medical Research will be intemationally recognized and be to Orlando what University of California at San Diego was to La Jolla, the catalyst for the creation of a vibrant biotechnology industry. 2 MISSION OF BURNHAM INSTITUTE for MEDICAL RESEARCH Our mission of BIMR is to conduct world-class � collaborative research to Akers, donors r human . disease, Improve quality of life, and thus create a legacy P oY We conduct basic biomedical research and our philosophy is grounded In the recognition that most breakthroughs in fighting human disease come . from basic scientific investigations. Moreover, our emphasis on basic research, as opposed to clinically applied research, means that our discoveries often reveal fundamental concepts and principles of cell biology that have broad relevance In a number of diseases. The Institute to a 501(c)3 non -profit corporation, formerly the La Jolla Cancer e Institute, Foundation, than 600 with an annual budget of apprwdmetery $90 million. Of the T25+ employees scientists, and over 200 of those are Postdodvral . Fellows. Currently BIMR Institute has 71 faculty members. The outstanding quality of our faculty allows them to very successfully compete for research funding from various government agencies, pardcuiarly the National Institutes of Health (NIH). Federal grants make up about 80% of our operating budget. Other Important sources of funding Include private foundations, revenue from technology licensing, and Philanthropy. ' Our research activities take place in nine buildings geographically located In the heart of San Diego's " biomedical research community on Torrey Pines Research Mesa. including kn k*jUe for Biological our scientists enjoy 09110giai access to neighboring Institutes, Studies, The Scripps Research Institute, Universky of California at San Diego, and San Diego's thriving biotechnology community, the world's fastest growing biotechnology community. ! 2.1 Background on Bumham Institute for Medical Research Burnham Insoftita for Medical Research celebrates Its 30°1 anniversary this year. Founded In La Jolla, California, as a non - profit medical research Institute focused on cancer research, BIMR has grown to a 725 plus person effort, with an annual operating budget of approximately $90 million. Our mission at BIMR is to reveal the fundamental molecular mechanisms of disease, and to use that knowledge to rough a highly collaborative devise the proto -type therapies of tomorrow. This mission is undertaken th I style of research that merges the talents of biologists with chemists, biophysicists, engineers, and computer scientists, creating a symphony of scientific synergy that emphasizes team -based approaches for tackling the great unmet medical challenges of today. Our mantra is 'from Research, the Power to Cure.' 4 fi BIMR consistently ranks among the top 20 organizations for the Impact of our research publications, and is among the top 0.04% organizations worldwide for citations received per publication, according to the Institute for SclentWo Information, Though journal publications are our chief product, during our 30 year history, BIMR scientists have also contributed directly or Indirectly at least 5 approved therapies and several diagnostic tests that are currently in use, saving and extending lives; plus, another 9 innovative therapies are currently in clinical testing at over 50 medical centers around the world. Burnham Institute for Medical Research is an organization on the rise. Due to the extremely high quality of our scientific staff and our highly collaborative culture, BIMR has enjoyed 6 consecutive years of double -digit growth in its NIH grant base, at a time when NIH budgets have been flat or In decline. BIMR currently ranks 71' in the nation among all private research Institutes in terms of NIH funding. NIH grants account typically for 80% of our .annual operating budget. According to the Center for Advanced Research, BIMR is the most efficient private research Institution in the nation, covering 90-83% of Its operating costs through competltive grants awarded to Its scientists. 2.2 Research Centers Research at BIMR Is organized Into 3 diseawfocused research centers, bolstered by 3 technology centers. The Cancer Research Center constitutes approximately half the effort. BIMR has been a member of the National Cancer Institute ("NCI' designed Cancer Centers program for 27 years, In the category of "basic science" cancer centers. The Cancer Research Center has also been designed by the NCI through special grants we receive as: (1) one of eight centers for cancer drug discovery; (2) one of four centers for cancer bloinformatios, (3) one of six centers for defining the molecular signatures of cancer for generating more powerful diagnostic test, in partnership with neighboring Organizations Including Sidney Kimmel Cancer Center, and (4) one of four centers for cancer bfonanotechnology, also in partnership with neighboring organizations. Among the accomplishments to come from Burnham scientists for cancer are: (1) the laboratory technique known as the EUSA, which forme the basis for the PSA (Prostate Specific Antigen) test and marry other clinical laboratory tests; (2) the enabling technology for the world's first biotech drug for cancer, EpogenTm, used to support blood cell produodon in patient undergoing cancer therapy; (3) one of the—first vita-Min -5aaed drugs (iargretfny" for cancer, that taps Into natural biopathways for fighting cancer; and (4) the world's first DNA -based drug far cancer to suocesstul y complete final Phase III clinical trials (decision on approval due this summer from FDA). Th e Dale E Webb Center for Nwnosdence & Aging Research focuses on degenerative diseases associated with aging, particularly neurodegeneration (Alzhelmer's; Parkinson's; ALS), stroke, heart disease, and-diabetes. Research In this Center Is aimed at either protecting cells from age- essodated loss, or replacing lost cells through stem cell technologies, Cell protection strategies to emerge from the laboratories of Burnham scientists Include: (1) Memantine (Namenda`r"), a cytoprotective drug approved for Alzheimer's disesse and in testing for glaucoma and stroke (2) two drugs used to prevent stroke and heart attack by inhibiting blot dot formatlon; and (3) a nerve.repalr therapy (Nsurogusrdk� anticipated to gain FDA - approval this year. Through special grants awarded by the NIH, BIMR has been designated as one of four centers for devising new therapies for cardiovascular disease using bfonanotechnology. With regards to cell replacement, BIMR was an early entrant Into the field of stem cells and regenerative medicine, launching a research division dedicated to this exoltlng but young field of medical inquiry 9 years ago. Today, the stem cep effort at BIMR constitutes the activities of nearly 100 scientists, perhaps the largest in the nation. Through special grants awarded by NIH, BIMR has been designated as one of six national exploratory centers for human embryonic stem cell research, and one of five centers for training the nation's scientists how to work with human embryonic stem cell research. To establish a safe -haven for performing research on all types of stem cells, we established in 2002 the Stem Ceti Research Center, which includes the complete Infrastructure for deriving new embryonic stem cell lines and making them available to the general research community for regenerative medicine research. I98 The infectious & inflammatory Disease Center studies Infectious agents and the Immune system's mechanisms for defense, Research in this new Center at BIMR focuses both on devising new treatments for incurable Infectious diseases, where the immune response falls to eradicate pathogens, and on investigations of sutoimmune diseases (e.g. Rheumatoid Arthritis; Inflammatory Bowel Diseases; Lupus; Multiple Sclerosis) where the immune response is excessive and turns on the patient's own tissues. Discoveries to come from this Center include (a) elucidation of the genetic basis for familial susceptibility to juvenile diabetes and rheumatoid arthritis, finding a geneflo difference In an Immunoregulatory gene and (b) determination of the 3D- structure of the Anthrax Toxin and generation of the world's most potent chemical inhibitors of Anthrax Toxin using NMR -besed drug design, providing a rapid means of neutralizing this agent of bloterrodam. BIMR's technology canters include: (1) the Center for Chemical Genomics, one of ten NIH- funded national centers for establishing high - throughput robotic systems for screening large collections of chemicals and enabling rapid drug disoovery, (2) the Canter for PMteolytic Pathways, one of four NIH- funded national research resources devoted to developing innovative proteomics technologies. for discovering new blopathways and new targets for diagnostics and drug discovery; and (3) the Center for Computational Modeling, one of twc national centers funded by NiH for devising Innovative computer afl pini,� s�e proteins �d �Pl tools for molecular modeigth providing insights Into functions f the ggenerating omea laying a foundation for drug disoovery. 3 The State of Florida In an effort to promote, stimulate, develop and advance business prosperity and economic welfare of Florida and Its residents, the Florida Legislature appropriated $200 mlWon of Innovation Funds (the 'State Funding"} to support the establishment of a biotechnology Industry In Florida. The Institute has been granted $155,272,000 of the innovation fund to be applied towards the operational cost needed to support the Orlando site until It becomes self sufficlent in its tenth year of operation. The remainder of the required operational funds have been provided by a consortium consisting of Orange County, the City of Orlando, lake Nona Land Company LLC, University of Florida, University of Central Florida, Florida Hospital, and Orlando Regional Hospital, 4 Action Plan The following key steps will constitute a plan of action for the establishment of Burnham Florida: 4,1 Negotiate enabling agreements with the State of Florida An agreement to. provide $155,272,000 million in operational funds that we will require over the first 10 years and which I details the performance based milestones that BIMR will need to meet to access these operational funds has been negotiated with the State of Florida. 4.2 Negotiate an agreement with the State Board of Administration An agreement that provides the mechanism, structure, and strategy for Investment of the State funds and their release to BIMR has been negotiated and executed with the, State Board of Administration (SSA). 1 0 911MI ti 4.3 Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square foot state- of- th"dfacility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for $15MM In local philanthropic support for BIMR e) oommltment for $10MM In funding from the University of Florida f) commitment for $27MM in funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORH have jointly and severally been negotiated and executed with Orange County, City of Orlando and Lake Nona Land Company LLC, and the universities and hospitals listed above. 4.4 Develop key Infrastructure for Burnham Florida This will occur in two phases: Phase I will be to build out, approximately 14,000 square feet of temporary lab space In the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been executed.. We would hope to take up occupancy in this space in April of .2007. Phase 11 will be a completion of the permanent 175,000 square foot facility at the Lake Nona site In Orlando. We have engaged Lake Nona Land Company LLC as the project manager for the construction of the permanent facility and under a very aggressive timeline estimate that we could take up occupancy early In 7009 , 4.6 Identify key senior appointments Key appointments will be the Scientific Director and the Moe President of Operations. These two Individuals will work as a team to build the scientific and administrative support teams needed to be successful In Florida. The COO and the VP Business Development have been designated by Awardee as the senior level points of contact for economic development activities related to Awardee's Florida operations. 4.6 Implement a Collaboration Program Burnham Orlando will present many valuable opportunities for collaborations with research efforts both within Florida and throughout the United States. Our goal is to develop effective collaborations with the Unlversity of Florida, University of Central Florida, Florida Atlantic University, MD Anderson and -other research groups wherever possible. This will initially require information dissemination including seminar programs that describe the growing capabilities of Burnham Florida to potential collaborators, as well as printed and web -based materials. 7 � 0 ral Several modes of collaboration are predicted: • Peer -to -peer collaborations that is common throughout the academic research model. • Access to the technological capabiilties WiN enhance the outside Institutions' chances of success and provide a competitive edge. • Investigators wish to collaborate on either preclinical or clinical development of a compound. These proposals will be examined based upon scientific merit The goal is to leverage the joint effort to generate external funding to support the collaborative activities at both partiolpating institutions. 4,7 Implement a Graduate Program The Bumham Institute plays a very important role In the education of a1arge number of future scientists through the training of graduate students. Burnham Florida YAK establish a Ph.D. graduate program, in conjunction with our Florida University partners, based on the model developed and operated in La Jolla. This program is described below. The Institute started its graduate program In March 2006. The graduate program offers Ph.D, degree In two subject areas — Integrated and Applied Biosclenoes and Molecular Medicine. Integrated and Applied Biosoiences is uniquely structured to offer students research training In fundamental Integration of biology, chemistry and physics while Molecular Medicine Is an expansion of the Joint program with UCSD, The Institute also partners with the University of California at San Diego in a joint graduate training program In molecular pathology that supports the training of Ph.D. students. Many Burnham faculty members have appointments and teach at UCSD and other university departments. Currently, approximately 30 graduate students obtain their primary sclentiflc training at the Institute. Graduate students make a vital contribution to the Institute's research effort. In 2001 -2002, approximately 32 publications from the Institute named graduate students as coauthors. We envision that we will partner In much the some way with UCF and/or OF to develop an exciting graduate program that will train the scientists of the future. ORGANIZATIONAL PLAN Burnham Florida WIN be operated as an unincorporated division of BIMR. All employees wlli'be sut>)ect to BIMR's Administrative Poliicies and all Faculty will also be subject to BIMR's Bylaws. The Administrative Poliicies and Bylaws will be modified and implemented in view of Florida state and. local law and regulations. Policy, programmatic and recruitment decisions will be made by the Executive Management Team. 5.1 Scientific Staff The Scientific Director will have responsibility for all scientific operations at the Floride campus. He/she will report directly to the President and CEO and will co- ordinate Florida campus activities With the La Jolla -based Center Directors Including all Faculty level recruiting and hiring. The Scientific Staff recruitment will be Initiated by the Scientific Director and WIN follow Burnham guidelines for recruitment of faculty or Principal Investigators (PI's). This Includes seminar presentations, visits with and assessment by Burnham La Jolla faculty, letters of recommendation, and a written summary of their proposed research activities. It is anticipated that heads of each of the discovery research programs and technology oores will be recruited Initially and that these department heads will report to the Scientific Director. The program heads will act as anchors for future hiring within each program or technology core. 1 90 -y. Start-up packages for PI's may Include research support for up to three years. It will be expected that all faculty will develop sufficient support after three years to sustain their Individual research programs, Including salaries. it is likely that the biomedical faculty will be recruited primarily from academia, whereas the technology and drug discovery faculty will be recruited from a mix of academic laboratories as well as bloteohnology and pharmaceutical corporations. The Scientific Director and the Technology Center Director will both be faculty members. We are looking at the Scientific Director as being a luminary in hislher field and that will also direct a research laboratory. The Technology Center Director will be responsible for putting into place all of core facilities. The first cone in the temporary facility will be chemistry, genomics, and in vitro pharmacology. Further research support staff will be recruited by senior faculty as well as by statewide and nationwide searches. 5.2 Administrative Staff The Vice President, Operations will have responsibility for all administrative, facility and support operstlons on the Florida campus, He/She will report. directly to the Le Jolla based BIMR Executive VP and COO and will co- ordinate the Florida campus activities with the Le Jolla based department heads. He/She will be responsible for hiring the fallowing administrative personnel. The Vice President, Finance A have responsibilfiy.for accurate financial reporting, internal controls, general accounting systems, accounts receivable/payable and payroll functions, as well as procurement (purchasing). In addition, the Vice President wlq be (a) the designed representative of Awardee to responsible for coordination with the Office of Supplier Diversity (b) responsible for establishing and Implementing a policy of making purchases from Florida vendors, to the extent it is cost affective and scientifically sound, and (o) responsible for ensuring that appropriate Ilability Insurance covering Burnham Florida has been obtained. We anticipate that the VP of Finance will be hired within 12 months of the Effective date of the innovation Fund Agreement. The Director, Human Resources will be responsible for'(a) implementing BIMR employment policies, Including BiMR's policies on equal opportunity employment, (b) implementing a program to conduct workforce necrutltment activities at public and private colleges and universities and community colleges In Florida which request the participation of Burnham Florida, (c) establishing a policy of awarding preference in employment to residents of Florida for administrative and scientific support positions, and (d) implementing a system for ensuring use of the intemet -based Job listing system of the Agency for Workforce Innovation In advertising employment opportunities. The Director, Ot11ce of Sponsored Programs will have responsibility for the pre- and post -award financial administration of grants and contracts from government and industry, In addition, the Director will be responsible for establishing and Implementing systems for tracking and reporting on (a) the number and dollar value of research grants.to be performed by Burnham Florida that are obtained from the Federal Government or sources otMr than Florida, (b) the percentage of total research dollars received by BIMR from sources other than Florida wNc h Is used to conduct research activities by BIMR In Florida, (c) the total amount of funding received by BIMR from sources other than Florida, and (d) tracking and reporting annually the amount of non - Florida funding obtained by Burnham Florida for each full -time equivalent tenure-track faculty member employed at Burnham Florida. The Director, Business Development will have responsibility in conjunction with the Vice President of Business Development for establishing a technology out - licensing program. In addition, the Director In oonjunction with the Vice President, Business Development will be responsible for (a) annually updating the Burnham Florida .business plan, (b) patenting Inventions conceived or reduced to practice using Burnham Florida facilities (c) negotiation and execution of licensing agreements Involving technology developed by Burnham Florida; (d) negotiation and execution collaborative agreements with colleges and universities In Florida and with research Institutions in Florida, and commercial third parties. ME The vice President, External Relations will have responsibility In BUR Executive Vice President of Development for planning and activities in Florida. The Director will be responsible for marketing donations from persons or entities involving the right to have all or a for or in the memory of any person, living or dead, or for any entity. 6 INFRASTRUCTURE DEVELOPMENT 6.1 Facilities Development will occur in two phases. conjunction with the La Jolla based implementing BIMR's philanthropic naming opportunities for charitable portion of the Florida facility named phase I win be to build out, approximately 14,000 square feet of temporary lab, space In the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been executed. We would hope to take up occupancy In this apace In April of 2007. Phase II will be a completion of the permanent 175,000 square foot facility at the Lake Nona site in construction Orlando.. We have engaged take Nona Land Company LLC estimate that we could take up occupancy of the permanent facility and under a very aggressive early in 2008 6.2 Capital Equipment Highly specialized capital equipment will be necessary to enable the research programs. The research programs will require capital support for molecular and cell biology, Including blochemistry and tissue culture, as well as structural biology. This will require centrifuges, 002 Incubators, tissue culture hoods, refrigeration and freezer units and an advanced microscopy core including confocal and digital deconvolullon systems, an automated cell sorter, NMR and robotic protein crystallization systems. The technology cores each require specialized cutting edge equipment. The chemistry core will have a structurally and functionally diverse chemical library will be acquired to achieve a competitive starting point, likely purchased from commercial sources. Analytical chemistry facilities are essential both to confirming the chemical characterization of drug screen actives, as well as for the generation of phanneookinedc -data by the current state-of-the-art medwdo liquid chromatography mass - spectrometry (LC-MS)- high-field NMR and supporting computational bilit Core systems pharmacology and animal physiology equipment will include hematology and clinical chemistry auto - analyzers, HPLC and mass - spectrometry, ECG and respiratory physidogy equipment. The functional genomics core will provide robotic liquid handling instrumentation and tissue culture facilities for genome -wide lentivirus -based siRNA screening. In vivo Imaging Instrumentation for rodent studies will include an MRI, and a bloluminescence and CT scanner, 6 Construction of Permanent Campus The permanent campus will be built on a 50 -acre campus located at Lake Nona, Orlando. The campus will comprise 176,000 square feet of laboratory and administrative space. The facility will be designed, and constructed by LNLC to enable the BiMR to apply for LEEDS certification The 50 acre campus will be master planned for the future growth of time Florida campus and will Include connections to the neighboring university campus and scientific communities. The eke will be master planned in a manner to achieve a high level of social Interactlon among the scientific staff. The laboratory building will be designed for a high degree of flexibility In both the structure and the laboratory support infrastructure. The mechanical, plumbing, piping, and electrical systems will be designed for the Initial designed space, but also for easy access for maintenance and future modifications. 10 r Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, microscopy, Imaging, refrigeration farms, cold rooms, scientific staff offices, library, server and disk storage space, high speed and wireless telecommunications, meeting/seminar rooms, cafeteria, outreach activities and science. support staff. The master plan and design for the permanent facilities will take approximately 3 months and the construction will take approximstely one year to complete. I1 IRVII.A.Mrj� �(n 40 CR E N �C �y �M1+f - , N M 4n so C ur N , �t Cq Cq r r N N a� ofm ) df v of < ® q cd M r Ad r .- {TL � Y p M rcm 4 N N 11 aD ed o i r r r p N tl < Yf c Q3 r P r Y C4 ID w * Fit Elf. w Of) t y N Qq� �1F S z m 0 it us# 7 5 ry h M �Qj E i �'b3 r N N • N NQ lV q El oP co N ya N N r� M N h G w N N i' N E0. a N rl fll:i C' Iy'1 96 I� I f 1 l N m N f1 Cl f9 r r m � yr N r r N H � N N N � rN� N r � b M tN r wy N � r M �rr N r iV 16 Yir r N N N fll:i C' Iy'1 96 I� I f 1 l r ...4 V' Np p�j 1{�� �Na~N f G{ co OHM NIL C4 y � r N ppppp .y pp rO•, � �I�l�•O 1ii� 1 � OMp 10O ���I�W � t , ��� fD �M^tni1M cif f0uiNm jai► -MPf aa1�� �a' N , e7 � {off 1(.y. ►�rp {tp� ((p� (¢Q� Q LO C%c N W W� d'� N fr. 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Q E M =I — .e � v r Wa a a � u E Fi 5 Vp a '= TLS a 8t R m a T 0 'N a LL r m� m� �W �t� C a�� P ;� 9a 8 a Q0 C a a CL "91 0 LL a �I� LO o) co �a 9B 2R - -■�§ „ _s � - -■® 2� a, �R � - ;■■ „ ,- §R „ § , -- 2k�$ $$ & � � f■n.n ;®- ; ® -� - -_ v©- ; q v - ; ..v© -® ;©- $ & -- #- -N -- k M-® ° . � � -e © -- ©•- ■ § ® -� -,- -®- ■ 9 " - - ©,. t4 ! � _ ! � 2 � $ i$ ■ 3 e a ■ Exhibit "B" Minimum Requirements The laboratory buildings for the permanent Facilities will be designed fora high degree of flexibility in both the structure and the laboratory support infresttuett - The large structural bays with heavy floor loading capabilities WM allow for a great variety of laboratory space layouts as well as minimizing any vibration issues. The mechanical, plwnbing, pipta& and electrical system will be designed for the initial designed space, but also with an intent toward reasonable access for maintenance and future modifications. Substantial design elements will 'be required to make the space suitable for molecular biology, chemistry hoods, cell culture, miscrosoopy, imaging' robotioWgh throughlrut screening, refrigeration farms, cold rooms, scientific staff offices, library, information technology and communications fi&wtructu-e, meeting(seminar rooms, cdOtmia, outreach activities and science support staff. no Minimum Reorcrnwis shaU include meeting the standards set forth in the definition of Permanent Facilities'and compliance with any and all applicable conditions of permits. and land approvals, an sufficient to obtain a CO. ORLI weaneesn79.4 3t7eT1 MWJayY22M7e:tAM 98 Report Periods: ExWbit" C:" Reporting Schedule Stub period of date. of initial disbursement of funds under the OTTED Agreement through June 30, 2007 ,Annual period. of July 1, 2007 through June 30, 2008 Annual period of July 1, 2008 through June 30, 2009 Annual period of July 1, 2009 through June 30, 2010 Annual period of July 1, 2010 through June 30, 2011 Annual period of July 1, 2011 through June 30, 2012 Annual period of July 1, 2012 through June 30, 2013 Annual period of July 1, 2013 though Ame 30, 2014 Annual period of July 1, 2014 through June 30, 2015 Annual, period of July 1, 2015 through June 30, 2016 Annual (or stub) period of July -1, 2016 through the Term of the Ground Lease 97670026 tr oar OM MA .7f, Er, h, b i a - '(b) ' EXHIBIT PERMITTED EXCEPTIONS . ■ 1. Taxes and assessments for the year 2007, which are not yet due and payable. 2. Orange County/Lake Nona Corporation Water and Wastewater Utilities Agreement recorded August 25, 1986 in Official Records Book 3814, Page 2159; First Amendment recorded August 25, 1988 in Official Records Book 4008, Page 3245; Lake Nona Utility Agreement with the City of Orlando recorded July 5, 1994 in Official Records Book 4764, Page 1185; First Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2327; Second Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2331; and Third Amendment recorded September 29, 2000 in Official Records Book 6097, Page 4121, all in the Public Records of Orange County, Florida. 3. Use .Agreement with Orange County recorded February 9, 1987 in Official Records Book 3860, Page 704, Public Records of Orange County, Florida. 4. Declaration of Covenant and Waiver dated November 12, 1987, and recorded February 29, 1988 in Official Records Book 3 96 1, Page 1078, Public Records of Orange County, Florida. 5. Declaration and Dedication of Avigation Easement recorded February 29,1988 in Official Records Book 3961, Page 1089, Public Records of Orange County, Florida. 6. Lake Nona Transportation. Impact Agreement recorded February 14, 1990 in Official Records Book 4157, Page 882, Public Records of Orange County, Florida. 7. That certain unrecorded Amended and Restated Orlando Utilities Commission/Orange County Water Service Territorial Agreement dated May 4, 1994. 8. That certain unrecorded City of Orlando /Orange County Wastewater Service Territorial Agreement dated May 4,1994, 9. Stipulated Final Judgment recorded August 5, 1994 in Official Records Book 4778, Page 1036, under Case No. CI -91 -692 and CI- 914738; and First Amendment to Schedule A recorded November 20, 1998 in Official Records Book 5620, Page 2336, all in The Public Records of Orange County, Florida. 10, Developer's Agreement by and between City of Orlando, Lake Nona Corporation and Orlando Utilities Commission recorded July 16, 1996 in Official Records Book 5090, Page 924, Public Records of Orange County, Florida. Exhibit 41(r)" 1 ow IMALE "OV-a 31752M= DW dw 2=007 891 AM 11. That certain unrecorded Development and Funding Agreement for the Central Florida Greeneway interchange at Lake Nona Planned Development by and between the City of Orlando and Lake Nona Land Company dated June 18, 2001, as may be amended from time to time. 12. Notice of Establishment of the Boggy Creek Improvement District, a Community Development District recorded December 20, 2001 in Official Records Book 6417, Page 3725; Notice of Boundary Amendment recorded January 12, 2004 in Official Records Book 7261, Page 3561; Notice of Boundary Amendment of the Boggy Creek Improvement District recorded March 31, 2006 in Official Records Book'8559, Page 221, all in the Public Records of Orange County, Florida. 13, Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District recorded February 7, 2002 in Official Records Book 6452, Page 6958; First Amendment to Interlocal Agreement by and between City of Orlando, Florida and Boggy Qreek Improvement District Regarding the Exercise of Powers and Cooperation of Various Projects and Services recorded April 11, ntObetween the City ofsOrlando, 6865, lom and the Second Amendment to Interlocal Agreement Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation on Various Projects and Services, recorded August 11, 2006 in Official Records Book 8800, Page 4934, all in the Public Records of Orange County, Florida, all in the Public Records of Orange County, Florida. 14. Ordinance Establishing a Community Development District, to be known as the Boggy Creek Improvement District recorded June 27, 2002 in Official Records Book 6554, Page 1847; Ordinance Expanding a Community Development District recorded April 11, 2003 in Official Records Book 6865, Page 2169, each in the Public Records of Orange County, Florida; an unrecorded Ordinance Contracting the Boundaries of the Community Development District, Known as the Boggy Creek Community Development District [sic]; Providing a Severability Clain; and Providing an Effective Date, dated February 13, 2006. 15. An Ordinance of the City of Orlando, Florida Amending and Restating the Development Requirements for the Lake Nona Planned Development approved by the City of Orlando on October 25, 2004 and recorded November 12, 2004 in Official Records Book 7699, Page 3056; An Ordinance of the City of Orlando, Florida, Amending the Development Conditions of the Lake Nona Planned Development Zoning District recorded August 10, 2005 in Official Records. Book 8120, Page 3662, all in the Public Records of Orange County, Florida. 16. City of Orlando Third Amended and Restated Development Order -for the Lake Nona Development of Regional Impact DR12005- 00001, dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, Public Records of Orange County, Florida, as may be amended from time to time. Exhibit "(r)" 2 oftIVIM 8=770 =.9 as?$?AU$ di 2122=7 e:3+ AM ' • r r 17. Interlocal Agreement among the Boggy Creek improvement District, the Myrtle Creek Improvement District and the Greenway Improvement District Regarding the Construction, Management and Financing of Certain Infrastructure improvements, recorded May 25, 2006 in Official Records Book 8663, Page 1398; First Amendment to Interloeal Agreement among the Boggy Creek Improvement District, the Myrtle Creek Improvement District and the Greenway Improvement District Regarding the Construction, Management and Financing of Certain Infrastructure Improvements, recorded August 2, 2006 in Official Records Book 8782, Page 3865, Public Records of Orange County, Florida, 18. Assignment and Agreement Regarding Development Rights and Obligations by and among Lake Nona Property Holdings, Inc., as Trustee under Lake Noma nlasta Land I, rust Agreement Dated as of March 5, 1996, Lake Nona Land Company, and Lake Nona Property holdings, Inc., recorded February 18, 1997 in Official Records Book 5202, Page 4038, Public Records of Orange County, Florida, �rabbed L6WZMP.TAGj 19. Cattle leases, if any; provided same shall be terminable upon thirty days, notice. 20. Master Declaration of Covenants, Conditions, Restrictions and Easements for by Lake Nona Land Company, LLC and Lake Nona Property Holdings, LLC, recorded in Official Records Book Page _ _, of the Public Records of Orange County, Florida. 21. Development Agreement by and among Lake Nona Property Holdings, LLC, Lake Nona Land Company, LLC and Burnham Institute for Medical Research recorded in Official Records Book , Page _ . of the Public Records of Orange County, Florida. 22. Restrictions as contained in that certain Special Waxxanty Deed recorded in Official Records Book _, Page r= of the Public Records of orange County, Florida. 23. Mortgage executed by Burnham in favor of Lake Nona Boggy Creek, LLC as provided under the Development Obligation Agreement. The following easements shall be permitted in accordance with the terms of the Gift Agreement (Surplus Land); 24. Access and Utility easement in favor of Lake Nona Land Company, LLC and/or the appropriate utility provider(s) recorded in Official Records Book Page , of the Public Records of Orange County, Florida. Exhibit "(r)" 3 ORLIUMAUSM77M.9 51762MM DHJ dW 2/22/2007 6:31 AM A N 0 # MI 25. Drainage Easement in favor of the Lake Nona Land Company, LLC recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 26, Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate ==unicatioas provider recorded in Official Records Book k Page , of the Public Records of orange County, Florida. 27, Any other matters contemplated under the governing contract.! Exhibit "(r)" 4 OROYM .E8T19TMO-Y 31TUX)928 DW dN =21=7 8*4 AM i • . Lxh i b i d 'l(u)" -r EXHIBIT " 3.a. Vy0_ Mass Grading Standards Surplus Land The Property will be filled and graded as part of the LNLC's Development Obligations. Additional technical details for the mass grading effort will be contained in engineering drawings prepared by the Project Engineer and supported by geotechnical information provided by Professional Services Industries, Inc. ( the "Geotechnical Engineer") and environmental information provided by Glatting Jackson Kercher Anglin Lopez Rinehart, Inc. (the "Environmental Consultant'), or such successor Geotechnical Engineer or Environmental Consultant as appointed from time to time by seller. The natural in -place soils and fill material placed within the Property will be of a quality sufficient to support road and multi -story construction (three -story) structures with shallow and .spread footings, typical of the Greater Orlando area. Following stripping and grubbing of surface vegetation and root mass to a suitable depth both as recommended and approved by the Geotechnical Engineer, suitable compacted fill will be placed on the Property as recommended by and approved by the G ooteelmical Engineer and the City of Orlando requirements. The fill will be placed in compacted lifts not exceaiing 18" (1.5 feet) with each lift compacted to a minimum density of 95% of the soils modified Proctor value (AASHTO T-180). LNLC shall employ the Geotecbmcal Engineer to perform quality control inspections and soil tests to ensure that such practices are being followed, which inspections and tests sba.11 be documented in writing from the Geotechnical Engineer to LNLC on a periodic basis. In connection with the turnover of the completed project to Burnham, the Geotechnical Engineer shall prepare and deliver to LNLC and BURNHAM a summary report of all inspections and tests performed referenced development of the Property. The summary will certify the satisfactory preparation of the material in place and fill soils per the Geotechnioal Engineers recommendations and the above described minimum requirements. BURNHAM shall accept the Property based upon a certification from the Geotechnical Engineer that the above practices have been followed and without warranty or recourse to LNLC. 'Tide Property will be graded by LNLC within a 4" (0.33 ft) vertical tolerance of those elevations specified by the Project Engineer in the approved engineering drawings for Lake Nona South, as prepared by Donald W. McIntosh Associates, Inc. and approved by BURNHAM, the City of Orlando and South Florida Water Management District (the "Approved Plaus'J. fonds and interconnected pipes and ditches shall be constructed to the City of Orlando specifications and South Florida Water Management District Permit Conditions of Approval. As a part of LNLC's achieving substantial completion of the mass grading, sufficient survey to identify post grading elevations from the Property will be obtained by a licensed surveyor and supplied to BURNHAM to provide reasonable assurances that the vertical tolerances have been achieved in accordance with the Approved Plans. In connection with LNLC's achieving substantial completion, mass graded areas not intended by Bumham to have development occurring proximate to the grading completion will be seeded and ars=n o►u and V21MW TA5 Mr � r r mulched or hydro seeded to ensure stability and provide erosion control. Additional erosion control devises such as silt fences, hay bales, etc., required by permit in the vicinity of the grading area shall be functional and installed pursuant to the plans and specifications therefore as a condition of substantial completion. DRLIVEALEST1000390.1 31 70 =0 DHJ did 2121=7 715 AM 9B Exhibit "31(ii)" CIP Estimated Costs for the PrOlOct8d Ca MI Improy ement Program of Boggy Creek CDD Prolected In structure PIM1029 P 029 to be 1ncjudt4 In the Estimated Capita! Improvement Program Expressway Interchange (417 and Lake Nona Blvd.) Master Stormwater Management (Pond Construction) A - LN Blvd. (Expressway Interchange to Boggy Creek Rd.) L - (417 to Road Q) L - (Flyovers and Connectors) R - (Road E to Road A or LN Blvd.) D West - (Shopping Center to South PL) J (Boggy Creek to OUC Access Rd.) Q - (Boggy Creek Rd. to Road E - includes Road N) Heintzeiman Rd - (OUC Access to Dowden Rd.) E - (Road A or LN Blvd. to UCF South East PL) j 4 Allocated Portion 81 Acres 12,850 LF 3,300 LF 1,200 LF 5,350 LF 7,410 LF 12,815 LF 11,780 LF 8,470 LF 1,890 LF Total CIP Roadwel Total CR' Less Roadway yroyemen IMRrovemenb Interchange Allocation $10,000,000 $10,000,000 $20,000,000 $20000000 Pond Consimctiou and Acres Roadway & Stormwatcr $20,000,000 $54,000,000 $17,000,000 $37,000, Utilities Landscape & Irrigation $12,000,000 $10,000,000 $4,000,000 $3,000,000 $8,000,000 $7,000,000 Electric &Lighting $�0� �0 $3,000,000 $6,000,000 Snbtatal $130,080,000 $42,000,000 000,000 Prolected In structure PIM1029 P 029 to be 1ncjudt4 In the Estimated Capita! Improvement Program Expressway Interchange (417 and Lake Nona Blvd.) Master Stormwater Management (Pond Construction) A - LN Blvd. (Expressway Interchange to Boggy Creek Rd.) L - (417 to Road Q) L - (Flyovers and Connectors) R - (Road E to Road A or LN Blvd.) D West - (Shopping Center to South PL) J (Boggy Creek to OUC Access Rd.) Q - (Boggy Creek Rd. to Road E - includes Road N) Heintzeiman Rd - (OUC Access to Dowden Rd.) E - (Road A or LN Blvd. to UCF South East PL) j 4 Allocated Portion 81 Acres 12,850 LF 3,300 LF 1,200 LF 5,350 LF 7,410 LF 12,815 LF 11,780 LF 8,470 LF 1,890 LF I'V clo j V Pp! I I ; ` x C,ich i b it 'S" SU`vcl woo ?1PPf OVW BY ORANGE COUNTY BOARD� x O 9.8 F COUNTY COMMISSIONER$ MAR Q,# 2007 1,4)OS PREPA D BY AND RETURN TO: Deborah H. Johnson, L.L.C. Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 NOTE TO RECORDER; This Mortgage secures performance of certain obligations of Mortgagor under this Mortgage, the Grant Agreement and the Ground Lease, as described herein; however, the liability of Mortgagee hereunder only arises in the event of cats defaults under those agreements. Accordingly, the Mortgagor's obligations to Mortgagee are contingent obligations which are not fixed and absolute at the time of execution hereof, and is therefore exempt from the payment of Florida intangible taxes pursuant to the court decision in West Fla Ier Asap .iatCs Ltd. v. DengtGmt of Revenue 633 So.2d 555 (Fla. 3d DCA 1994). If and when the contingent obligation become fixed and absolute, Florida documentary stamp taxes and intangibles taxes shall be due and payable by Mortgagee. PRIMARY LEASEHOLD MORTGAGE AND SECURITY AGREEMENT THIS PRIMARY LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (this "Mortgage ") dated as of , 2007 by and among BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit 501(c)(3) corporation (`Burnham" or "Mortgagor "), the address of which for notices under this Mortgage is 10901 North Torrey Pines Road, La Jolla, California 92037, and ORANGE COUNTY, a charter county and political subdivision of the State of Florida ("County") the address of which for notices under this Mortgage is c/o Orange County Attorney's Office, 201 South Rosalind Avenue, 3rd Floor, Orlando, Florida 32801, CITY OF ORLANDO, a municipal corporation organized and existing under the Laws of the State of Florida ( "City'), the address of which for notices under this Mortgage is c/o Office of Legal Affairs, City of Orlando, Florida, 3rd Floor, City Hall, 400 South Orange Avenue, Orlando, Florida 32801, LAKE NONA LAND COMPANY, LLC, a Florida limited liability company ("LNLC'), the address of which for notices under this Mortgage is 9801 Lake Nona Road, Orlando, Florida 32827, Attention: James L. Zboril; President, (County, City, and LNLC shall be referred to herein jointly as the "Mortgagee'). WYTNE ETH: WHEREAS, LNLC, City, County (collectively, the "Funding parties ") and Burnham have entered into that certain Grant Agreement of even date herewith; and WHEREAS, the Grant Agreement provides, among other things, that LNLC donate and convey to County the Permanent Facilities Site, subject to and in accordance with the terms of the Gift Agreement (Permanent Facilities); and WHEREAS, pursuant to the Grant Agreement, the Funding Parties are obligated to provide up to $81,000,000,00 in Grant Funds to Burnham for the design, permitting and construction of the Permanent Facilities, subject to and on the terms more particularly set forth therein; and Ci;y COU11gl i�ia..mw ■atllllom► 31Tavoo2e oH,► and 212e2007 a:ea gut Q r%D 30.5 t✓p O E 9B 40 WHEREAS, concurrently with the closing under the Gift Agreement (Permanent Facilities), County and Burnham entered into the Ground Lease for the lease of the Permanent Facilities Site to Burnham for Burnham's design, permitting, construction, operation and maintenance of the Permanent Facilities thereon (the "Ground Lease ") subject to and in accordance with the terms thereof; and WHEREAS, a memorandum of the Ground Lease is recorded simultaneously herewith in Official Records Book , Page , of the Public Records of Orange County, Florida; and WHEREAS, pursuant to the terms of the Ground Lease, Burnham is obligated to grant to the Funding Parties, as joint mortgagees, a primary leasehold mortgage (mortgage and security agreement and allied instruments) in order to secure the performance of, inter alia, Burnham's obligations under the Grant Agreement and the Ground Lease with respect to the Permanent Facilities Site and the Permanent Facilities located thereon; and WHEREAS, the Ground Lease and Grant Agreement are incorporated by reference herein and all terns not otherwise defined herein shall have the same meaning as provided in the Ground Lease and/or Grant Agreement; and WHEREAS, pursuant to the Ground Lease, Mortgagor holds a leasehold interest in the real property described in Exhibit "A" attached hereto and made a part hereof, which is hereinafter referred to as the "Land"; and WHEREAS, Mortgagee desires to secure its investment of the Grant Funds in the Permanent Facilities Site and the performance of Mortgagor's obligations under the Grant Agreement and the Ground Lease. NOW THIS INDENTURE WITNESSETH, to secure the performance and observance by Mortgagor of all the covenants and conditions in the Grant Agreement, Ground Lease and in this Mortgage, and in order to charge the properties, interests and rights hereinafter described with such performance and observance, and for and in consideration of the sum of $10.00 paid by Mortgagee to Mortgagor on or before the delivery of this Mortgage, and for other valuable considerations, the receipt of which is hereby acknowledged, Mortgagor does hereby grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, deliver; set over, warrant and confirm unto Mortgagee, its successors and/or assigns forever: THE MORTGAGED PROPERTY BEING Mortgagor's interest in the Ground Lease and leasehold interest pursuant to the Ground Lease in the Land. -2- ow.11R6A1ES71pp1bOQ.1 ��. 31702Wn D"J d!V ?!20!2007 SM AM 9. B f . 1 TOGETHER WITH all buildings, structures and improvements of every nature whatsoever now or hereafter situated on the Land, including the Permanent Facilities, and all fixtures, machinery, equipment, attachments, appliances, furniture, vehicles and other personal property of every nature whatsoever now or hereafter owned by Mortgagor and located in, on, or used or intended to be used in connection with or with the operation of, the Land and the Permanent Facilities, including all extensions, additions, improvements, betterments, renewals and replacements to any of the foregoing; and all of the right, title and interest of Mortgagor in any such personal property or fixtures subject to a conditional sales contract, chattel mortgage or similar lien or claim, together with the benefit of any deposits or payments now or hereafter made by Mortgagor on its behalf, to the extent any of the foregoing is acquired with the Grant Funds; TOGETHER WITH all right, title and interest of Mortgagor in and to any and all leases, subleases, guaranties of leases and subleases, permits, licenses, franchises or certificates covering the Land (including the Permanent Facilities), or any portion thereof, now or hereafter on or affecting the Land (including the Permanent Facilities), together with all security therefor, and all monies payable thereunder, including, without limitation, all cash or security deposits, advance rentals and deposits or payments of similar nature, provided, however, that the right is hereby given to Mortgagor so long as no Event of Default (not cured within applicable cure periods) has occurred hereunder, to collect, receive, take, use and enjoy such rents, royalties, issues, profits, revenue, income and other benefits as they become due and payable, and to enforce all Mortgagor's rights thereunder so long as the existence or exercise of such right of Mortgagor shall not operate to subordinate this assignment to any subsequent assignment, in whole or in part, by Mortgagor, and any such subsequent assignment by Mortgagor shall be subject to the rights of secured party hereunder. The foregoing assignment of any lease shall not be deemed to impose upon Mortgagee any of the obligations or duties of Mortgagor provided in any such lease, and Mortgagor agrees to perform fully all obligations of the lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to send to Mortgagee a list of all leases covered by the foregoing assignment and as any such lease shall expire or terminate or as any new lease shall be made, Mortgagor shall so notify Mortgagee in order that at all times Mortgagee shall have a current list of all leases affecting the Land (including the Permanent Facilities). Mortgagee shall have the right, at any time and from time to time, to notify any lessee of the rights of Mortgagee as provided by this paragraph. From time to time, upon request of Mortgagee, Mortgagor shall specifically assign to Mortgagee as additional security hereunder, by an assignment in writing in form approved by Mortgagee, all right, title and interest of Mortgagor in and to any and all leases now or hereafter on or affecting the Land (including the Permanent Facilities), together with all security therefor and all monies payable thereunder, subject to the conditional permission hereinabove given to Mortgagor to collect the rentals under any such lease. Mortgagor also shall execute and deliver to Mortgagee any notification, financing statement or other document reasonably required by Mortgagee to perfect the foregoing assignment as to any such lease; and TOGETHER WITH a security interest in (i) all property, tools, equipment, machinery, goods and fixtures affixed to or located on the Land (including the Permanent Facilities) acquired with the Grant Funds, which, to the fullest extent permitted by law, shall be deemed -3- 0RUREiuesn691502.1 3176210028 DHJ MV 2128!2007 6:59 AM gB fixtures and a part of the real property; (ii) all articles of personal property and all materials delivered to the Land (including the Permanent Facilities) for the use and operation of said property or for use in any construction being conducted thereon acquired with the Grant Funds and owned by Mortgagor; (iii) all contract rights and benefits of Mortgagor relating to the construction and operation of the property herein described including, without limitation, agreements and contracts of sale, construction contracts, service contracts, advertising contracts, purchase orders, equipment leases, all rights arising under any performance or payment bonds and all other contract rights associated with the Land (including the Permanent Facilities); (iv) all general intangibles, actions and rights of action, all deposits, prepaid expenses, permits, licenses, rights to insurance proceeds and prepaid insurance premiums, surveys, architectural and engineering plans, drawings and specifications held by Mortgagor; (v) all goods, instruments, documents, chattel paper, accounts, contract rights and general intangibles (as such terms are defined in the Uniform Commercial Code) now or hereafter located on, used in connection with, or the development or operation of, or arising from any use of, or from any business operated on, any of the property described herein held by Mortgagor and paid for with Grant Funds; and (vi) all proceeds, products, replacements, additions, substitutions, renewals and accessions of any of the foregoing. Mortgagor (Debtor) hereby grants to Mortgagee (Secured Party) a security interest in all fixtures, rights in action and personal property described herein and acquired with the Grant Funds. The Land, together with any and all of the aforedescribed additional property and rights, now or hereafter acquired by Mortgagor, has herebefore been and shall sometimes hereinafter be, referred to, collectively, as the "Mortgaged Property." This Mortgage is a self - operative security agreement with respect to personal property, but Mortgagor agrees to execute and deliver an- demand such other security agreements, financing statements and other instruments as Mortgagee may reasonably request in order to perfect its security interest or to impose the lien hereof more specifically upon any of such property. Without limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney -in -fact for Mortgagor to execute, deliver and file such instruments for and on behalf of Mortgagor, and Mortgagor shall pay the costs of any such filing. TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto Mortgagee, its successors and/or assigns to its own proper uses and benefit forever, subject, however, to the terms and conditions herein: PROVIDED, HOWEVER, that these presents are upon the condition that, if Mortgagor shall fully and faithfully keep, perform and observe its obligations all and singular the covenants and promises under the Grant Agreement and the Ground Lease and any extension(s) or modification(s) thereof, and in this Mortgage expressed to be kept, performed and observed by and on the part of Mortgagor, all without fraud or delay, then this Mortgage, and all the properties, interests and rights hereby granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, pledged, delivered, set over, warranted and confirmed, shall cease, terminate and be void, but shall otherwise remain in full force and effect. Unless earlier terminated and released by Mortgagee, the term of this Mortgage -4- oRLM ALesrM5024 3178210M DHJ dN 2 BMM7 SM AM shall continue until Mortgagor's acquisition of the Land pursuant to its exercise of the Option under Section 23.01 of the Ground Lease. AND, Mortgagor covenants and agrees with Mortgagee as follows: ARTICLE 1 PA TICULAR COVENANTS OF MORTGAGOR 1.1 Performance under Grant A i—yreement and Ground Lease. Mortgagor will perform, observe and comply with all the provisions hereof, of the Grant Agreement and the Ground Lease secured hereby. 1.2 Warranty of Title. Mortgagor covenants, represents and warrants that it is in possession of the Land pursuant to the terms of the Ground Lease; that this Mortgage constitutes a valid first and prior lien on Mortgagor's leasehold interest in the Mortgaged Property; that it has good and absolute title to all existing personal property included within the Mortgaged Property; that it has full power and lawful right to convey and mortgage the same in the manner and form aforesaid; and that, to its knowledge, the Land is free from all liens and encumbrances except taxes for the calendar year 2007 and subsequent years which are not yet due and payable and except for those matters which are set forth in Schedule B -2 of First American Title Insurance Company Commitment for Title Insurance, No. Mortgagor hereby makes further assurance to perfect leasehold interest in and to the Land in Mortgagee as may be required in accordance with this Mortgage. 1.3 Taxes, Liens and Utility es a. Mortgagor covenants and agrees to comply with all provisions of the Ground Lease related to the payment of lawfully imposed taxes upon the Mortgaged Property, subject to the provisions of the Gift Agreement (Permanent Facilities) related to assessments by a CDD. b. Mortgagor shall not permit any construction, statutory or other lien to be created or to remain outstanding upon any of the Mortgaged Property and shall cause same to be released and discharged, or transferred to bond as permitted by law, within ten (10) days after Mortgagor receives notice that the lien is filed of record or otherwise in accordance with the terms of the Development Obligation Agreement. C. Mortgagor will pay when due and will not suffer to remain outstanding, any charges for utilities, whether public or private, with respect to the Mortgaged Property, 1.4 Insuranc . Mortgagor shall faithfully obtain and keep in full force and effect all insurance required pursuant to the terms of the Ground Lease. -5- OfMiWEALE$T iSO r 9176ZMW DNJ Ch) Z12=007 SM AM • r' r • r r 1,5 Condemnation. Mortgagee's and Mortgagor's obligations with respect to any condemnations actions or proceedings shall be governed by the terms of the Ground Lease, 1.6 Care of Property. a. Mortgagor shall preserve, operate and maintain the Mortgaged Property in good condition and repair, in accordance with the terms of the Ground Lease. b. Except as otherwise provided herein or in the Ground Lease, no buildings, fixtures, personal property or other part of the Mortgaged Property shall be removed, demolished or altered without the prior written consent of Mortgagee. c. Mortgagee is hereby authorized to enter upon and to inspect the Mortgaged Property at any time during normal business hours during the term of this Mortgage, pursuant and subject to the provisions of Section 7.02 of the Ground Lease. d. Mortgagor will comply promptly with all present and future laws, ordinances, rules and regulations of any governmental authority affecting the Mortgaged Property or any part thereof. e. If all or any part of the Mortgaged Property shall be damaged by fire or other casualty, Mortgagor will give immediate written notice thereof to Mortgagee and shall be required to faithfully comply with the provisions of the Ground Lease relating thereto. 1.7 Further Assurances. Mortgagor will make, execute and deliver to Mortgagee and, where appropriate, shall cause to be recorded and/or filed and from time to time thereafter to be re- recorded and/or re -filed at such time and in such offices and places as are reasonably requested by Mortgagee, and any and all such further mortgages, mortgage modifications, instruments of further assurance, certificates and other documents as may, in the reasonable opinion of Mortgagee, be reasonably necessary or desirable in order to effectuate, complete, enlarge or perfect, or to continue and preserve: a. The obligations of Mortgagor under this Mortgage, the Grant Agreement and the Ground Lease secured hereby, and b. The lien of this Mortgage as a valid first lien upon all of the Mortgaged Property, whether now owned or hereafter acquired by Mortgagor. Upon any failure by Mortgagor to do so, Mortgagee may make, execute, record, file, re- record and/or re -file any and all such mortgages, instruments, certificates and documents for and in the name of Mortgagor, and Mortgagor hereby irrevocably appoints Mortgagee the agent and attorney -in -fact of Mortgagor to do so. 1.8 After Acquired PropgW. Except for equipment leased by Mortgagor from unrelated third parties, the lien of this Mortgage will automatically attach, without further act, to all after acquired property of any nature whatsoever attached to, located in, on, or used in the operation of, the Mortgaged Property, or any part thereof, if purchased or acquired with Grant -6- oRL1VW-AL29T10 1ao2A 317WXM DFU Ot 2*WMT 8:69 AM W 0 ON Funds, and Mortgagor covenants and warrants that it will have good and absolute title to all of the aforesaid after acquired property free of any lien or encumbrance. 1.9 Leases Affecting _Mo ageded Pmnerty Mortgagor Will comply with and observe its obligations as landlord and tenant under all leases affecting the Mortgaged Property or any part thereof. Mortgagor will furnish Mortgagee with copies of all leases hereafter created on the Mortgaged Property, each of which shall be in accordance with the requirements of the Ground Lease. All leases. shall be inferior and subordinate in all respects to the lien of this Mortgage, and the terms of each lease shall so provide. If requested by Mortgagee, Mortgagor will specifically assign to Mortgagee as additional security any and all such leases hereafter created, including, without limitation, all rents, royalties, issues and profits of the premises from time to time accruing, the parties hereto acknowledging that this Mortgage constitutes a general assignment of any and all such future leases. 1.10 Expenses. Mortgagor shall pay or reimburse Mortgagee for all costs, charges, payments and expenses, including reasonable attorneys' fees, including appellate proceedings, disbursements and costs of abstracts of title incurred or paid by Mortgagee on account of or in any action, proceeding or dispute in which Mortgagee is made a party or appears as a party plaintiff or party defendant in its capacity as Mortgagee hereunder because of the failure of Mortgagor promptly and fully to perform and comply with all conditions and covenants of this Mortgage, the Grant Agreement and the Ground Lease secured hereby, including, but not limited to, the foreclosure of this Mortgage, condemnation of all or part of the Mortgaged Property or any action to protect the security thereof. All costs, charges and expenses so incurred by Mortgagee shall become due and payable upon demand. The amounts so paid or incurred by Mortgagee, together with interest thereon at the prevailing statutory rate from the date incurred until paid by Mortgagor, shall be secured by the lien of this Mortgage. 1.11 Mortgagee's Performance of Certain Defaults If Mortgagor shall default in its obligation to furnish insurance hereunder, then Mortgagee may, at its option and as permitted under the Ground Lease, without waiving or affecting its option to foreclose or any other rights hereunder, perform or observe the same, and all payments made or costs or expenses incurred by Mortgagee in connection therewith, shall be secured hereby and shall be immediately repaid by Mortgagor to Mortgagee, upon demand, with interest thereon at the prevailing statutory rate. Nothing contained herein shall be construed as requiring Mortgagee to advance or expend monies for any purposes mentioned in this paragraph. 1.12 Estoppel Affidavits Mortgagor, within ten (10) days after written request from Mortgagee, shall furnish a written statement, duly acknowledged, setting forth whether or not any material default exists under this Mortgage, the Grant Agreement or the Ground Lease. 1.13 Waiver of Notice of Limuitation of Indebtedness Mortgagor hereby waives, on behalf of itself and its successors and/or assigns, the right to file for recording a notice limiting the maximum principal amount which may be secured by this Mortgage, as provided for in Florida Statutes, 697.04(l)(b), as may be amended from time to time. -7- ORUVEALE$Miso2.1 31702M= DW dhj 2/YUM7 0:00 AM 1. 14 Leasehold Encumbrances; Non-Subordination of Fee Except as provided in Section 12.03 of the Ground Lease, Mortgagor shall not sell, convey, or transfer or permit to be sold, conveyed or transferred any interest in the Mortgaged Property or any part thereof. A contract to deed or agreement for deed, or an assignment, pledge, or encumbrance of a beneficial interest in any land trust, or a lease for all or substantially all_ of the Mortgagor's leasehold interest in the Land or Improvements in violation of the foregoing shall constitute a transfer prohibited by the provisions of this section and shall be null and void. Without limiting anything herein or in the Ground Lease, Mortgagor may encumber only its leasehold estate and County will not subordinate its fee interest in the Land to any mortgage. ARTICLE 2 DEFAI;7LTS t REMEDIES 2.1 Event of Default. The term "Event of Default," wherever used in the Mortgage, shall mean any one or more of the following events: a. Except for a Foreclosure Event of Default (defined below), failure by Mortgagor to duly keep, perform and observe any covenant or obligation under this Mortgage, the Grant Agreement or the Ground Lease, beyond any applicable notice and/or grace periods provided for in any such instrument. b. The filing by Mortgagor for recording of a notice limiting the maximum Principal amount which may be secured by this Mortgage, pursuant to Florida Statutes, 697.04(l)(b), as may be amended from time to time. 2.2 Foreclosure Event of Default. The term "Foreclosure Event of Default ", wherever used in this Mortgage, shall mean the occurrence of an event (beyond any applicable notice and cure period) for which any Funding Panty would have a right to terminate the Ground Lease pursuant to Section 14.01A thereof or the Grant Agreement pursuant to Part IX.B. thereof. 2.3 Mortgagee's Remedies. If an Event of Default or Foreclosure Event of Default shall have occurred, Mortgagee shall have the remedies set forth under the Grant Agreement and/or the Ground Lease, as applicable as well as the remedies set forth in this Mortgage (except for the remedies in this Section 2.3(1), (2) and (3) hereof, which are addressed in the following sentence). Without limiting anything contained herein, in the Grant Agreement or the Ground Lease, upon the occurrence of a Foreclosure Event of Default, and provided that a termination of either the Ground Lease or the Grant Agreement has been declared in writing by a party entitled to do so, Mortgagee shall also have the following remedies: (1) Foreclosure. Mortgagee may institute proceedings for the partial or complete foreclosure of this Mortgage and Mortgagee may foreclose the lien of this Mortgage in accordance with Florida law and, pursuant to any final judgment of foreclosure, sell or otherwise dispose of the Mortgaged Property in Mortgagee's discretion. The Mortgagee is authorized to foreclose this Mortgage subject to the rights of any tenants of the Mortgaged Property, or Mortgagee may elect which tenants Mortgagee desires to name as parties defendant in such -8- ORL1V eni.esrewsozj 317ftW28 DMJ my 2W M7 C:N AM 9B foreclosure and failure to make any such tenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not be, nor be asserted by the Mortgagor to be, a defense to any proceedings instituted by the Mortgagee . (2) Receiver, Mortgagee may apply to any court of competent jurisdiction to have a receiver appointed to enter upon and take possession of the Mortgaged Property, collect the rents and profits therefrom and apply the same as the court may direct, such receiver to have all of the rights and powers permitted under the laws of the State of Florida. The right of the appointment of such receiver shall be a matter of strict right without regard to the value or the occupancy of the Mortgaged Property or the solvency or insolvency of Mortgagor. The expenses, including receiver's fees, attorneys' fees, costs and agent's commission incurred pursuant to the powers herein contained. (3) Remedies as to Personal Property. Mortgagee may exercise any or all of its rights and remedies with respect to the Mortgaged Property under the Uniform Commercial Code - Secured Transactions as adopted by the State of Florida or other applicable law as well as all other rights and remedies possessed by Mortgagee, all of which shall be cumulative. Mortgagee is hereby authorized and empowered to enter the Mortgaged Property without legal process, and to take possession of any personal property forming a part of the Mortgaged Property without notice or demand, which hereby are waived to the maximum extent permitted by the laws of the State of Florida. Upon demand by Mortgagee, Mortgagor shall make any personal property included within the Mortgaged Property available to Mortgagee at a place reasonably convenient to Mortgagee. 2.4 Suits to Protect the Moitg Red _P 0 erty Following an Event of Default, Mortgagee shall have the power (a) to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Mortgaged Property by any acts which may be unlawful or any violation of the Mortgage, (b) to preserve or protect its interest in the Mortgaged Property and in the income, revenues, rents and profits arising therefrom, and (c) to restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of or compliance with such enactment, rule or order would impair the security hereunder or be prejudicial to the interest of Mortgagee; provided, however, that in no event shall Mortgagee be entitled to pursue the remedies set forth in Section 2.3(i), (ii) or (iii) unless a Foreclosure Event of Default shall have occurred. 2.5 No Waiver of One Default to Affect Another. No waiver of any default hereunder shall extend to or'shall affect any subsequent or any other then existing default or shall impair any rights, powers or remedies consequent thereon. If Mortgagee (a) grants forbearance or an extension of time for the performance of obligations secured hereby; (b) releases any part of the Mortgaged Property from the Mortgage; (c) consents to the filing of any map, plat or replat thereof; (d) consents to the granting of any easement thereon; or (e) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Mortgage or otherwise of Mortgagor or any subsequent purchaser of the Mortgaged Property or any part thereof; nor shall any such act or omission preclude Mortgagee from exercising any right, power or privilege -9- ORLiVtFALEffMlsQ,1 3178WO ze DFW dW Z2&7W7 0:69 AM r herein granted or intended to be granted in the event of any other default then made or of any � subsequent default nor, except as otherwise expressly provided in an instrument or instruments executed by Mortgagee, shall the lien of this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Mortgaged Property, Mortgagee, without notice to any person or corporation, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Mortgaged Property or the indebtedness secured hereby, or with reference to any of the terms or conditions hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any of the liabilities or undertakings hereunder. 2.6 Discontinuance of Proceedings: Position of Parties Restored In case Mortgagee shall have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to Mortgagee, then and in every such case, Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of Mortgagee shall continue as if no such proceeding has been taken. 2.7 SubroLation. Mortgagee hereby is subrogated to the claims and liens of all parties whose claims or liens are discharged or paid with the proceeds of the indebtedness secured by this Mortgage. ARTICLE 3 MISCELLANEOUS PR03MIONg 3.1 Successors and/or Assign` In luded in Parties Whenever in this Mortgage one of the parties hereto is named or• referred to, the successors and/or assigns of such party shall be included and all covenants and agreements contained in this Mortgage by or on behalf of Mortgagor or by or on behalf of Mortgagee shall bind and inure to the benefit of their respective successors and/or assigns, whether so expressed or not. Whenever the singular or plural number or masculine or feminine or neuter gender is used herein, it shall equally include the other. 3.2 Notice. a. Mortgagor. Any notice, demand or other instrument authorized by this Mortgage to be served on or given to Mortgagor may be served on or given to Mortgagor at the following addresses: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn. Karin Eastham, Executive Vice President/COO Facsimile: (858) 646 -3184 _10- ORLflRE/1L ATM1602,1 91762AM& Z*U dhj 2/Z QW1 0,69 AM With a copy to: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Vice President Business Development Facsimile: (858) 646 -3105 and Shutts & Bowen LLP 300 North Orange Avenue, Suite 1000 Orlando, Florida 32802 Attention: Michael Grindstaff Facsimile: (407) 425 -8316 and Cooley Godward Kronish LLP 4401 $astgate Mall San Diego, CA 92121 Attention: L. Kay Chandler Facsimile: (858) 550 -6420 or at such other address(es) as may have been furnished in writing to Mortgagee by Mortgagor. b. Mortgagee. Any notice, demand or other instrument to be served on or given to Mortgagee may be served on or given to Mortgagee at its offices located at the following address: If to County: Orange County, Florida P. O. Box 1393 Orlando, Florida 32802 -1393 Attention: Orange County Administrator Facsimile: (407) 836 -7399 With a copy to: Orange County Attorney's Office 201 South Rosalind Avenue, 3"d Floor Orlando, Florida 32801 Attention: County Attorney Facsimile: (407) 836 -5888 -11- OR1,WEALESM1502.1 31 7W=6 DH.! d1# 4/ &=T 9:50 AM / 90 if to City: { Chief Financial Officer City of Orlando, Florida 4d' Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile: (407) 246 -2707 With a copy to: Office of Legal Affairs City of Orlando, Florida 3rd Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Attention: Wesley C. Powell, Assistant City Attorney Facsimile (407) 246 -2854 If to LNLC: Lake Nona Land Company, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Facsimile: (407) 438 -0207 With a copy to: Tavistock Corporation 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Thakkar, Chief Executive Officer Facsimile: (407) 876 -0085 and Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Facsimile: (407) 650 -0920 or at such other address(es) as may have been furnished in writing to Mortgagor by Mortgagee. -12- 0RL11RFALE$T%W502.1 9178200020 DHJ dN 2/20/2007 6:56 AM c. Notice shall be deemed given when hand delivered, properly receipted, or one day after placed in the United States mails, certified or registered, return, receipt requested, postage prepaid, or delivered to a commercial overnight courier to the above addresses. 3.3 Headings. The headings of the articles, sections, paragraphs and subdivisions of this Mortgage are for convenience of reference only, and are not to be considered a part hereof, and shall not limit or otherwise affect any of the terms hereof. 3.4 Invalid Provisions to Affect No Others In case any one or more of the covenants, agreements, terms or provisions contained in this Mortgage or in the Grant Agreement or in the Ground Lease shall be invalid, illegal or unenforceable in any respect, the validity of the remaining covenants, agreements, terms or provisions contained herein and therein shall not be affected, prejudiced or disturbed thereby in any manner. 3.5 Modifications. It is understood and agreed that Mortgagee may at any time, without notice to any person, grant to Mortgagor any modification of any kind or nature whatsoever, or allow any change or changes, substitution or substitutions of any of the property described in this Mortgage or any other collateral which may be held by Mortgagee without in any manner affecting the liability of Mortgagor, any endorsers or guarantors of the indebtedness hereby secured or any other person for the payment of said indebtedness, together with interest and any other sums which may be due and payable to Mortgagee, and also without in any manner affecting or impairing the lien of this Mortgage upon the remainder of the Mortgaged Property and other collateral which is not changed or substituted; and it is also understood and agreed that Mortgagee may at any time, without notice to any person, release any portion of the property described in this Mortgage or any other collateral, or any portion of any other collateral which may be held as security for the performance of the obligations hereby secured, either with or without any consideration of such release or releases, without in any manner affecting the liability of Mortgagor, all endorsers or guarantors, if any, and all other persons who are or shall be liable for the payment of said indebtedness, and without affecting, disturbing or impairing in any manner whatsoever the validity and priority of the lien of this Mortgage for the full amount of the indebtedness remaining unpaid, together with all interest and advances which shall become payable, upon the entire remainder of the Mortgaged Property which is unreleased, and without in any manner affecting or impairing to any extent whatsoever any and all other collateral security which may be held by Mortgagee. It is distinctly understood and agreed by Mortgagor and Mortgagee that any release or releases may be made by Mortgagee without the consent or approval of any other person or persons whomsoever. 3.6 JLmform Commercial Code The parties agree that this Mortgage is a security agreement under the Uniform Commercial Code for the purpose of creating alien on the personal property and fixtures described herein. 3.7 Future Advances. This Mortgage is given to secure not only the existing indebtedness/obligations of the Mortgagor to the Mortgagee evidenced by the Grant Agreement and Ground Lease secured hereby, but also such future advances as are made within twenty (20) Years from date hereof, plus interest thereon, and any disbursements made by Mortgagee for the payment of taxes, insurance or other liens on the property encumbered by this Mortgage, with -13- OMI RMESTYWIGOz.i 317e20M OW dhJ 2,2eMOO7 0:69 AM • t VAN interest on such disbursements, which advances shall be secured hereby to the same extent as. if such future advances were made this date. The total amount of indebtedness secured hereby may increase or decrease from time to time. The provisions of this paragraph shall not be construed to imply any obligation on Mortgagee to make any future advances, it being the intention of the parties that any future advances shall be solely at the discretion and option of Mortgagee. 3.8 Leasing CoMMissions. Mortgagor covenants that every agreement to pay leasing m comissions with respect to the leasing of space in the Mortgaged Property, or any part thereof, are and shall be subject, subordinate and inferior to the right of Mortgagee, so that in the event that Mortgagee acquires title to the Mortgaged Property either at a foreclosure sale or by other means, Mortgagee will be exonerated and discharged from all liabilities for the payment of any such commissions or compensations. 3.9 Time is of the Essence. It is specifically agreed that time is of the essence of this Mortgage and that no waiver of any obligation hereunder or of the obligation secured hereby shall at any time thereafter be held to be a waiver of the terms hereof or of the instrument secured hereby. 3.10 Attorneys' Fees and Expenses. Wherever provision is made herein for payment for reasonable attorneys' or counsels' fees or expenses incurred by Mortgagee, said provision shall include, but not be limited to, reasonable attorneys' or counsels' fees or expenses incurred in any and all judicial, bankruptcy, reorganization, administrative or other proceedings, including appellate, proceedings, whether such proceedings arise before or after entry of a final judgment. 3.11 Maximum Rate of Interest. Nothing herein contained, in the Grant Agreement or Ground Lease secured hereby or any instrument or transaction related thereto, shall be construed or so operate as to require Mortgagor, or any person liable for the payment of the Grant Funds advanced pursuant to the Grant Agreement, to pay interest in an amount or at a rate greater than the maximum allowed by law. Should any interest or other charges in the nature of the interest paid by Mortgagor, or any parties liable for the advancement of the Grant Funds made pursuant to the Grant Agreement, result in the computation or earning of interest in excess of the maximum rate of interest allowed by applicable law, then any and all such excess shall be and the same is hereby waived by the holder hereof, and all such excess shall be credited automatically against and in reduction of the principal balance, and any portion of said excess which exceeds the principal balance shall be paid by the holder hereof to Mortgagor, or any parties liable for the advancement of the Grant Funds made pursuant to the Grant Agreement, it being the intent of parties hereto that under no circumstances shall Mortgagor, or any parties liable for the advancement of the Grant Funds made pursuant to the Grant Agreement, be required to pay interest in excess of the maximum rate allowed by law. 3.12 Florida- Contract. This Mortgage is made by Mortgagor and accepted by Mortgagee in the State of Florida, with reference to the laws of such State, and shall be construed, interpreted, enforced and governed by and in accordance with such laws (excluding the principles thereof governing conflicts of law) and federal law, in the event (and only in the event) federal law preempts State law. Mortgagor and Mortgagee agree that any legal action or -14 OftIVtPALE$T%M802.1 3176MMS b►u ay 2=2007 819 Me • MJ ij proceeding arising out of or relating to this Mortgage or the other documents executed in connection herewith shall be brought in the courts in the State of Florida, County of Orange. 3.13 Financial Statements. Mortgagor agrees to deliver annually to Mortgagee financial statements and other Reports in accordance with the terms of the Grant Agreement. 3.14 Attorney in -Fact. Mortgagor hereby appoints Mortgagee or substitutes appointed by Mortgagee or its successors and/or assigns as Mortgagor's true and lawful attorney, for Mortgagor and in Mortgagor's name to perform and do all and every act and thing whatsoever requisite and necessary to be done under all contracts, licenses, leases and similar documents and agreements in which. Mortgagee has a security interest upon an Event of Default hereunder. This appointment shall be coupled with an interest and shall be non - cancelable except upon satisfaction of the indebtedness secured hereby. Mortgagor hereby ratifies and confirms all that Mortgagee shall lawfully do or cause to be done pursuant hereto. ARTICLE 4 ADDITIONAL PROVISIONS 4.1 Waiver of . Jury. Trial. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE AND ANY DOCUMENT EXECUTED IN CONJUNCTION THEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF OR BY MORTGAGOR OR MORTGAGEE. IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and year first above written. ATTEST: Signed, sealed and delivered in presence of two witnesses for Burnham Signs e -jenA4er S. Tobr� Typed or Printed Name ORLMEALESM91502.1 3176?IMS DK! dH 2IY8=7 a:68 AM BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public the benefit ration By: 10 4k. Reed, M.D., Ph.D. Pr ident and Chief Financial Officer Date: Urck 5.1 aoo"T -15- 90 Typed or Printed Name STATE OF R00 D14 SS.. COUNTY OF DQ.k. fitF, 1 The foje$oing Agreement was acknowledged before me this day of affe k 2007, by ,JQhn C. &Qd the '�+%�5. CF,[�_ of Burnham institute for Medical Research, a California non -profit public benefit corporation, who is Dersonally known to me OR who produced id and who r take an oath. Notary Public .... GYKM E. WORD MY COIr1Ml $$IS ION 1 DD 20683 " t EXPIRES 5*wW 22, 2907 -N sm g�� aalda+lDrY &dp�t Ng" Sery a0 Pnnt Notary Name NOTARY PUBLIC State of at Large My Commission Expires: CJ IV-47 -16- 0rL1M;WAL6srWS=-1 317VJMS DW dhj W&2007 8:69 AM ME ATTEST: CITY OF ORLANDO, a municipal corporation organiz4andstfting under &44 the laws the S A By: By: Alana C. Brenner, City Clerk B Der, Ma or APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, FLORIDA, ONLY: m �3 Q11 J , 2007 City Attorne Oftl%PFALEWMI502.1 31r67JD028 DHJ dN 2/ WAW SM AM -18- Signed, sealed and delivered in the presence of- Print Name: Print Name: STATE OF FLORIDA ) ) SS COUNTY OF ORANGE ) 9B LAKE NONA LAND COMPANY, LLC, a Florida limited liability company t, , J By: Name: Title: Date: The foregoing instrument was acknowledged before we this day of 200`, by , as of Lake Nona Land Company, LLC, a Florida limited liability company, on behalf of said company. ORLtVtEALESAW1602.1 317==35 ON dN =52W7 5;69 AM -19- Print Name: NOTARY PUBLIC State of Florida at Large Commission No.: My Commission Expires: Personally known or Produced I.D. [check one of the above] Type of Identification Produced: This instrument was prepared by and should be returned to: Deborah H. Johnson, L.L.C. Broad and Cassel Bank of America Center Post Office Box 4961 Orlando, Florida 32802 MEMORANDUM OF FUNDING PARTIES AGREEMENT 1 THIS MEMORANDUM OF FUNDING PARTIES AGREEMENT (this "Memorandum') is made as of the day of , 2007, by and among Orange County, Florida, a charter county and political subdivision of the State of Florida (`County'), City of Orlando, a municipal corporation organized and existing under the Laws of the State of Florida ("City'j, and )take Nona Land Company, LLC, a Florida limited liability company ( "LNLC") (County, City and LNLC are referred to individually as a `Funding Party" and collectively as the "Funding Parties'). RECITALS A. The Funding Parties have entered into that certain Funding Parties Agreement dated March 6, 2007 (the "Funding Parties Agreement') in order to set forth certain understandings and agreements among the Funding Parties relating to the Grant Agreement, the Ground Lease, the Gift Agreement (Permanent Facilities), Permanent Facilities Site, and the Permanent Facilities, as such terms are defined therein. B. The Funding Parties now desire to execute this Memorandum, and to record the same among the Public Records of Orange County, Florida, to provide constructive notice of the Funding Parties' interest in the Permanent Facilities and the Permanent Facilities Site and the Proceeds therefrom. C. Any term not otherwise defined herein shall have the meaning ascribed to it under the Funding Parties Agreement. NOW THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto herebyagree as follows: 1. Recitals. The foregoing recitals are true and connect and are incorporated herein by this reference. o 76?1= DSnMUM City Council 7176TI000B DFU 57ROOI 1807 AM Item: ... 0 7'030.560 l 2. Funding Parties' Rights with Respect to Ground Lease. In accordance with the terms of the Funding Parties Agreement, the Funding Parties have certain rights with respect to the enforcement and termination of the Ground Lease as more particularly set forth therein. 3. LNLC's Rights with Respect to the Permanent Facilities Site. In accordance with the terms of the Funding Parties Agreement, LNLC has certain rights with respect to a Right of Re- Entry. The method of exercise of the foregoing shall be governed pursuant to the terms of the Funding Parties Agreement, 4. Proceeds from Property. In accordance with the terms of the Funding Parties Agreement, each of the Funding Parties shall receive its Proportionate Share, based upon its Proportionate Contribution, of all Proceeds received by County from the sale, lease or other transfer of all or any portion of the Permanent Facilities and/or the Permanent Facilities Site. 5. Counterpart Execution This Memorandum may be executed in as many counterparts as may be required and it shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of such counterparts. All counterparts shall collectively constitute a single agreement. [SIGNATURES CONTAINED ON THE FOLLOWING PAGES] -2- a IKEA ESUMOn.4 3176NOW OW 5?rAW 10V AM 1 IN WITNESS WEEREOF, the Funding Parties have executed this Memorandum as of the day and year first above written. Signed, sealed and delivered in the presence of- Print Name: Print Name: STATE OF FLORIDA COUNTY OF ORANGE "J q n' LAKE NONA LAND COMPANY, LLC, a Florida limited liability company By: James L. Zboril, President The foregoing instrument was acknowledged before me this day of 2007, by James L. Zboril, as President of LANE NONA LAND COMPANY, LLC, a Florida limited liability company, on behalf of the company. He is personally known to me or has produced as identification. -3- 0RUVtEALEST%54M4 31767A1OR6 OMJ WOW 1"7 AM (Signature of Notary Public) (Typed name of Notary Public) Notary Public, State of Florida Commission No.: W Commission Expires: • r w ATTEST: Martha O. Haynie, County Comptroller As Clerk of the Board of County Commissioners By: Deputy Clerk Date: -4- ORANGE COUNTY, FLORIDA By: Board of County Commissioners 0 Date: Richard T. Crotty Orange County Mayor 98 ej if ORLlWEALESTM4072.4 31762!0028 DH151?OM 10.07 AM -, EXEIIBU "A" Permanent Facilities Site That part of Section 26, Township 24 South, Range 30 East, Orange County, Florida, described as follows: Commence at the Southeast comer of the Southeast 1/4 of said Section 26; thence N89° 17'38 "W along the South lime of the Southeast 1/4 of said Section 26 for a distance of 371.16 feet; thence N43 °43'49 'E, 22928 feet; thence N30056'1 9"E, 288.27 feet; thence N47 129'38 "W, 18.00 feet; thence N40°2649 "W, 42.94 feet; thence N40°26'49 "W, 157.19 feet; thence N26 02348 "W, 360.97 feet; thence S27°24'00 "W, 61.96 feet; thence N34 154'59 "W, 352.22 feet; thence N25 °05'40 "E, 127.07 feet; thence N56 °41'49 "W, 225.45 feet; thence S75 002'30 "W, 242.11 feet; thence S68 °38'50"W, 385.25 feet; thence N89°12'59 "W, 200.64 feet; thence N78 °41'22 "W, 371.10 feet; thence N73 °22'47"W, 79.91 feet; thence N84 °23'32 "W, 223.73 feet; thence S49 °37'58 "W, 224.15 feet; thence S57°54'58 "W, 315.66 feet; thence S52 024'26 "W, 582.43 feet; thence S58 144'09 "W, 401.34 fleet; thence S77 044'08 "W, 192.26 feet; thence S86018'27"W, 159.50 feet; thence N80 102'25 "W, 378.16 feet; thence N06 143'58 "E, 105.88 feet to the POINT OF BEGINNING; thence N01 °41'57 "W, 577.73 feet to a point on a non - tangent curve concave Northerly having a radius of 3530.00 feet and-a chord bearing ofN71°55'18'B; thence Easterly along the arc of said curve through a central angle of 07 °43' 15" for a distance of 475.68 feet to the point of tangency; thence N68 °03'41 "E, 11.90 feet to the point of curvature of a curve concave Southerly having a radius of 40.00 feet and a chord bearing of S77 °24' 16"E; thence Easterly along the are of said curve through a central angle of 69 °04'06" for a distance of 48.22 feet to the point of tangency; thence S42 °52' 13 "E, 684.67 feet to the point of curvature of a curve concave Westerly having a radius of 40.00 feet and a chord bearing of S09 °08'02 "W; thence Southerly along the are of said curve through a central angle of 104 °00'31" for a distance of 72.61 feet to the point of compound curvature of a curve concave Northerly having a radius of 1420.00 feet and a chord bearing of S78 °56'08 "W; thence Westerly along the arc of said curve through a central angle of 35 °35'41" for a distance of 882.17 feet to the point of tangency; thence N83 °1 6'02 "W, 94.57 feet to the POINT OF BEGINNING. Together with that certain beneficial Temporary Access and Utilities Easement Agreement (West Portion) by Lake Nona Land Company, LLC in favor of Orange County, Florida recorded May , 2007 in Official Records Book , Page , Public Records of Orange County, Florida. Together with that certain beneficial Temporary Construction and Access Easement Agreement dated February 22, 2007 by Boggy Creek Improvement District in favor of Lake Nona Land Company, LLC, recorded March 9, 2007 in Official Records Book 9152, Page 526; as assigned by that certain Partial Assignment of Temporary Construction and Access Easement Agreement dated , 2007 by Lake Nona Land Company, LLC in favor of Orange County, Florida and Burnham Institute for Medical Research, recorded , in Official Records Book , Page , all in the Public Records of Orange County, Florida. Of YQEAL rAMD7Z4 31787/0028 OW 5WZW710W AM A -1 � f f W Together with that certain Declaration of Temporary Drainage Easement (Portion R2/South Campus Drive) by Lake Nona Land Company, LLC recorded May , 2007 in Official Records Book , Page , Public Records of Orange County, Florida. Together with that certain Declaration of Temporary Drainage Easement (Portion of UCF Site) by Lake Nona Land Company, LLC recorded May , 2007 in Official Records Book , Page _ _ , Public Records of Orange County, Florida. Together with that certain Declaration of Temporary Drainage Easement (Portion South of UCF) by Lake Nona Land Company, LLC recorded May , 2007 in Official Records Book , Page , Public Records of Orange County, Florida. Together with that certain Access License Agreement (Permanent Facilities) dated May 2007 by Lake Nona Land Company, LLC in favor of Orange County, Florida. 0RLIVt u KSTW 7?.+ 31 M=2s DKJ&W=7 IQW we A -2 • r i •�,s ��L� �L %i.L APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, FLORIDA, ONLY: May 3 '2007 sS %CkRe City Attomey 0AUREALES7d6/Wz.1 3776VOUM OMJ SRMW I M. AY _g_ CITY OF ORLANDO, a municipal corporation organized and existing under the laws of the StateAvMorida. Lm Dyer, APPROVED BY ORANGE COUNTY BOARD Of GOUNU COMMISSIONERS MAR o�, s zaar��� This instrument was prepared ; by and should be returned to: Deborah H. Johnson, L.L.C. Broad and Cassel Bank of America Center Post Office Box 4961 Orlando, Florida 32802 MEMORANDUM OF FUNDING PARTIES AGREEMBM.- f THIS MEMORANDUM OF FUNDING PARTIES AGREEMENT (this "Memorandum ") is made as of the &1"N day of March, 2007, by and among Orange County, Florida, a charter county and political subdivision of the State of Florida ( "County "), City of Orlando, a municipal corporation organized and existing under the Laws of the State of Florida ( "City "), and Lake Nona Land Company, LLC, a Florida limited liability company ( "LNLC ") (County, City and LNLC are referred to individually as a "Funding Party" and collectively as the "Funding Parties "). RECITALS A. The Funding Parties have entered into that certain Funding Parties Agreement of even date herewith (the "Funding Parties Agreement") in order to set forth certain understandings and agreements among the Funding Parties relating to the Grant Agreement, the Ground Lease, the Gift Agreement (Permanent Facilities), Permanent Facilities Site, and the Permanent Facilities, as such terms are defined therein.. B. The Funding Parties now desire to execute this Memorandum, and to record the same among the Public Records of Orange County, Florida, to provide constructive notice of the Funding Parties' and LNLC's interest in the Permanent Facilities and the Permanent Facilities Site and the Proceeds therefrom. C. Any term not otherwise defined herein shall have the meaning ascribed to it under the Funding Parties Agreement. NOW THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: . s0 _ Clty meat o: r I . Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Funding Parties' Rights with Respect to Ground Lease. In accordance with the terms of the Funding Parties Agreement, the Funding Parties have certain rights with respect to the enforcement and termination of the Ground Lease as more particularly set forth therein. 3. LNLC's Rights with Respect to the Permanent Facilities Site. In accordance with the terms of the Funding Parties Agreement, LNLC has certain rights with respect to a Right of Re- Entry. The method of exercise of the foregoing shall be governed pursuant to the terms of the Funding Parties Agreement. 4. Proceeds from Property. In accordance with the terms of the Funding Parties Agreement, each of the Funding Parties shall receive its Proportionate Share, based upon its Proportionate Contribution, of all Proceeds received by County from the sale, lease or other transfer of all or any portion of the Permanent Facilities and/or the Permanent Facilities Site. 5. Counterpart Execution. This Memorandum may be executed in as many counterparts as may be required and it shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of such counterparts. All counterparts shall collectively constitute a single agreement. [SIGNATURES CONTAINED ON THE FOLLOWING PAGES] 2 ON IN WITNESS WHEREOF, the Funding Parties have executed this Memorandum as of the day and year first above written. °LNLC" Signed, sealed and delivered LAKE NONA LAND COMPANY, LLC, in the presence of: a Florida limited liability company ` By: Print ame:asesh Thakkar, Vice President r -WE STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this 5 day of March, 2007, by Rasesh Thakkar, as Vice President of LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, on behalf of the company. He is personally known to me or has produced as identification. L (Si a u2 ofN ?o `,t Robin McAdams (Typed name of Notary Public) . C'Dmn s W # p0371743 Notary Public, State of Florida °R Commission No.: 43 My Commission xpires: M130 I D 3 ATTEST: Martha O. Haynie, County Comptroller As Clerk of of County C issioners Depu Date: ORANGE COUNTY, FLORIDA By: Board ounty Nr By: Richard T. Cro y Orange County Mayor r 1 .. A 0 f f ATTEST: By: 10AJ- J/ 1",.0#AJ Alana C. Brenner, City Clerk APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, FLORIDA, ONLY: �nciccln .5"- ,2007 A s qn-t (Ay Attomey W CITY OF ORLANDO, a municipal corporation organized and existing under the laws of the State of FI By j�. uddy Dyer ayor Date: 3t i3O a Pr4rbd: Thu 22- f"n --2W - MOM CSJ 06 -698 t: \Pre/z0oe \sets+ \Sdwq\dam Madwo SKETCH OF DESCRIPTION Nor MA TXD \ 9b ' -- - ' L- 4&22' CB- S77-24'167 PT ou NOT PLAMD \� BURNHAM SITE ��' �' \—'/ / / — SEE SWEET 2 FOR PHASE 1 Pc - DESCRIP71ON AND M07M R- 40.00' v N&"6'02 "W 94.57' d-104V9'�'1' L -7261 " CB+mSo9v9 02 W ~ PT _ _ _ _ r -- PDINT t)P - R-1420.00' d-35 351 " \ I Pr4rbd: Thu 22- f"n --2W - MOM CSJ 06 -698 t: \Pre/z0oe \sets+ \Sdwq\dam Madwo SKETCH OF DE7SCRIP77ON DESCRIPTION: That part of Section 26, Township 24 South, Range 30 East Orange County, Florida, described as follows: Commence of the Southeast comer of the Southeast 1/4 of sold Section 25, thence N8917'38 "W along the South line of the Southeast 114 of sold Section 28 for a distance of 2685.48 feet to the Southwest corner of sold Southeast 1/4 of sold Section 26; thence S86573D'W along the South line of the Southwest 114 of sold Section 26 for a distance of 1468.22 feet; thence NOOtiO'00 "W, 478.12 feet; thence NO6 43'58 "E, 105.68 feet to the POINT OF BEGINNING; thence N0141'57"W, 877.73 feet to a point on a non — tangent curve concave Northerly having o radius of 3530.00 feat and a chord bearing of N715518'1~ thence Easterly citing the arc of sold curve through a central angle of 07'43'13" for a distance of 478.68 feet to the point of tangency, thence N6803'4M 11.90 feet to the point of curvature of a curve concave Southerly having a radius of 40.00 feet and a chord bearing of S772416 "J~ thence Easterly along the arc of sold curve through a control angle of 89104'06" for d distance of 48.22 foot to the point of tongency, thence S4215213'E, 684.67 feet to the point of curvature of a curve concave Westerly having a radius of 40.00 feet and a chord bearing of S09V802'k thence Southerly along the arc of said ,curve through a central angle of 104'0031' for a distance of 72.61 feet to the point of compound curvature of a curve concave Northerly having a radius of 1420.00 feet and a chord bearing of S7856'08'W, thence Westerly along the arc of sold curve through a central angle of 3535'41" for a distance of 882.17 feet to the point of tongency, thence N8316'02 "W, 94.57 feet to the POINT OF BEGINNING. Containing 12.000 acres more or lose and being subject to any rights —of —way, restrictions and easements of record. SURVEYOR'S NOTES. - lhk k not o wrwj% - Hearings bored an the South Arse of the Southeast 114 of Section 26, Tbmahlp 24 South, Ronal 30 Emt. GYdnpe Count$ Florida, being N897TJe'W, mn assumed merldfan. - Lands shown hereon wore not abstracted for rights -or -way, easements, ownerehrp or other Instruments of record by this firm. - No LiVa opinion or abstract of matters aNeeting title or boundary to the "isat property or those of odj*4ng land owner haw been pr*W&d It to pmss6rk there we deads of roc" unrecorded deeds or other kwirumente whbh mold effect the boundorlse or we of the "Jeot proprt$ The lands dse~ hersoh' may be subject to eenh+ente and restrlotlam not sheen hereon. - Thlr Sketch of DoeMption dose not depot any sor menu of nerd that may be within or adpininp the Conde d Barbed Moon. PWAM FOR: LAKE 'NONA LAND COMPANY LAKE 14ONA SOUTH - 8UW" SITE (PHASE 11 DONALD W. MCINTOSH ASSOCIATES, INC. ENGINEERS PLANNERS SURVEYORS 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 327811 (407) 644 -4068 AUTH ZA DRAWN SY -M— I CHECKED BY:,SL- JOB NO. SCALE SHEET DATE: 12114AU6 I DATE; 1244AM 261,41,000) NA DF 2 Minted: Thu If Feb -2007- 10:07A4 SZTT2,3 a"O' trf wa-azra F V 'rol2ahe1rT61'Si�Sbwp�Ied \eumhom SH&dwg I It l i i I I I GUARANTY OF PAYMENT AND PERFORMANCE THIS GUARANTY OF PAYMENT AND PERFORMANCE ( "Guaranty's dated as of _M=kl 112 2007, is executed by LAKE NONA LAND COMPANY$ LLC, a Florida limited liability company ("Lake Nona" or "Guarantor') with an address of 9801 Lake Nona Road, Orlando, Florida 32825 in favor of ORANGE COUNTY, a charter county and political subdivision of the State of Florida ( "County'), and the CITY OF ORLANDO, a municipal corporation organized and existing under the Laws of the State of Florida ( "City'). WHEREAS, Lake Nona, City, County (collectively, the "Funding Parties') and Burnham Institute for Medical Research, a California nonprofit public benefit 501(c)(3) corporation ( "Burnham" )have entered into that certain Grant Agreement of even date herewith, pursuant to which the Funding Parties have committed to fund the construction of the Permanent Facilities (as defined therein); and WHEREAS, under. the Grant Agreement Burnham is obligated to retain a Project Manager (as defined therein) to manage the planning, designing, permitting, and construction of the Permanent Facilities; and WHEREAS, pursuant to the terms of the Development Obligation Agreement of even date herewith (the "DOA "), Burnham has retained Lake Nona Boggy Creek, LLC, a Florida limited liability company ( "LNBC') to act as the Project Manager to oversee and coordinate the development of the Permanent Facilities in accordance with the terms of the DOA (the "Obligations " }; and WHEREAS, LNBC is an affiliate of Lake Nona; and WHEREAS, City and County have requested Lake Nona guaranty the Obligations of LNBC under the DOA. NOW THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned, Guarantor, hereby guarantees to City and County the prompt and full performance of the Obligations by LNBC, as and when the same shall be required subject to and in accordance with the terms of the DOA, upon the following terms and conditions: 1. The foregoing recitals are true and correct and are incorporated herein by this reference. 1 -1- city C uncll Meellai�`� D j ORLIAEALEM75460.3 Item:�Lrt.— DOCUli18 317 67/0 026 DKJ dhJ 2/26/2007 2:27 PM 2. This instrument shall be a conditional guaranty and shall cover all of the guaranteed Obligations, up to and only to the extent of the failure of LNBC to fully perform same subject to and in accordance with the terms of the DOA. I Guarantor hereby agrees that Guarantor's obligations under the terms of this Guaranty shall not be released, diminished, impaired, reduced or affected by the occurrence of any one or more of the following events: (a) the taking or accepting of any other security or guaranty for any or all of the Obligations other than as set forth in the DOA; (b) any release, surrender, exchange, subordination, or loss of any security at any time existing in connection with any or all of the Obligations unless resulting from the intentional or negligent actions or inactions of City or County; or (c) renewal, extension, modification or rearrangement of the performance of any or all of the Obligations unless without the consent of Guarantor. It is the intent of Guarantor, City and County that the obligations and liabilities of Guarantor hereunder are conditional upon City's and County's having first sought to enforce the performance of the Obligations in accordance with the terms of the DOA. 4. This Guaranty is for the sole and exclusive benefit of City and County. This Guaranty is binding not only on Guarantor, but on Guarantor's successors and assigns. This Guaranty shall be governed by and construed in accordance with the laws of the State of Florida, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. The agreed upon venue for legal proceedings shall be Orange County, Florida If anyprovision of this Guaranty or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Guaranty nor the application of such provision to any other person or circumstances shall be affected thereby, but rather the same shall be enforced to the greatest extent permitted by law. Guarantor hereby agrees with City and County that all rights, remedies and recourses afforded to City and County by reason of this Guaranty are secondary and conditioned upon City and County having exhausted all remedies under the DOA. Guarantor shall pay the reasonable attorney's fees and all other costs and expenses which may be incurred by City and County in connection with the proper enforcement of this Guaranty. Time is of the essence in connection with the performance obligations of this Guaranty. 6. Notwithstanding anything contained herein to the contrary, City and County acknowledge and agree that (i) the liability of Guarantor hereunder shall in no event exceed the sum of Fifteen Million and no /100 Dollars ($15,000,000.00); (ii) this Guaranty shall expire one (1) year after the termination or expiration of the DOA, unless an action is then pending in a State or Federal Court, in which case this Guaranty shall continue until the dismissal or rendering of a final, nonappealable judgment in any such action; and (iii) Guarantor's liability hereunder shall be limited to causes of actions arising prior to the termination or expiration of the DOA. -2- OM1ViEALEWM75400.3 3176=025 DHJ Oh) 2262007 2:27 PM t 0 & W EXECUTED at C y- (a*,do 'P (b f (rj a , this 54" day of _ 3 jQ g ^ , 2007. Signed, sealed and delivered in the presence of. LAKE NONA LAND COMPANY, LLC, a Florida limited liability company MI WERVAFTot STATE OF FLORIDA ) COUNTY OF bQPN6FC- ) The foregoing instrument was acknowledged before me this ETTi* day of M FW-" , 2007, by R scSt -V 1 AKA,• as V is E PROS i DENT• of LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, on behalf of the corporation. HelShe is personally known to me or has produced as identification. �" p�� Robin McAdams � � Commiabn � DD371743 Expires Dsamba 30, 2008 �vr wwwnr�•�w rooe�eao,o -3- DRU1REALEST875450.3 31 762/0028 DKJ dhJ 2/28!2007 2:27 PM u� 4(Siat=ure qof ot ary Public) ltQ (Typed name of Notary Public) Notary Public, State of Florida Commission No.: f 743 My Commission Expires: 8 W*pp • 1sj Crry oF ORLANDo April 3, 2007 MEMORANDUM TO: Alana C. Brenner City Clerk FROM: Wesley C. Powell Assistant City Attorney RE: Documents Relating to Burnham Institute of Medical Research at Lake Nona Council Date: 03 -05 -07 Item No.: New Business, Item #1 Doc. No.: 070305601 Attached, for your files, please find fully- executed originals of the following documents that were approved by City Council on March 5, 2007 as Documentary No. 070305601: *1. Grant Agreement *2. Escrow Agreement *3. Funding Parties Agreement *4. Memorandum of Funding Parties Agreement *5. Guaranty of Payment and Performance 6. Development Obligation Agreement 7. Gift Agreement (Permanent Facilities) 8. Ground Lease 9. Temporary Facilities Lease 10. Gift Agreement (Surplus Land) * The City of Orlando is a party to the agreement. WCP:ra Att. ' R" cc: Byron Brooks, CAO (w /out enc.) Rebecca W. Sutton, CFO (w /out enc.) Frank Billingsley, Director, Economic Development (w /out enc.) Brooke Bonnett, Deputy Director, Economic Development (w /out enc.) rte: ~- 03 a�4o Office of Legal Affairs (0_01 ) -'—" APPROVED BY ORANGE COUNTY BOARD 08 COURIX COMMISSIONERS MAR '0 6 2047 u4,w t GRANT AGREEMENT BY AND AMONG ORANGE COUN'T'Y, FLORIDA, CITY OF ORLANDO, FLORIDA, LAKE NONA LAND COMPANY, LLC "-0-1] BURNHAM TNSTrrUTE FOR MEDICAL RESEARCH DRUMALESMOW&S 31MW dN 7a02 AM 0 City G? uniii Meebng�r • l • l cum 1 1 ' GRANT AGREEMENT BY AND AMONG ORANGE COUNTY, FLORIDA, CITY OF ORLANDO, FLORIDA j LAIE NONA LAND COMPANY; LLC AND BURNHAM INSTITUTE FOR MEDICAL RESEARCH ' THIS GRANT AGREEMENT BY AND AMONG ORANGE COUNTY, FLORIDA, CITY OF ORLANDO, FLORIDA.. LAKE NONA LAND COMPANY, LLC AND BURNHAM INSTITUTE FOR MEDICAL RESEARCH (the "Agreement's is made as of the —U!�I_ day of March, 2007 (the `Bffectiive Date'), by and among ORANGE COUNTY, a charter county and political subdivision of the State of Florida ("County"), CITY OF ORLANDO, a municipal corporation organized and existing under the IAws of the State of Florida ("City'), LAKE NONA LAND COMPANY, LLC, a Florida limited liability company ("LNLC) (County, City., and LNLC shallbe ref xred to herein jointly as the'Tunding Parties"),. and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, ,a California nonprofit public benefit 501(c)(3) corporation ( "Burnham'). WITNESSETH: WHEREAS, the Florida legislature has enacted the Enabling Statute to, among other things, appropriate funds to ensure that sufficient resources are available to allow the State of Florida to respond expeditiously to extraordinary economic opportunities and to complete effectively for high -value research and development and innovation business projects; and WHEREAS, the Enabling Statute contemplates that local community partners will enter into agreements providing for finding that matches funding from the State of Florida; and f WHEREAS, Burnham is a nonprofit internationally recognized research organization focused on basic biomedical research in the fields of camcer, neurosciences and aging, and infectious and inflammatory diseases; and WHEREAS, Burnham and the Funding Parties desire to create an environment conducive to the establishment of Bumbam's operation at the Burnham Campus in Orlando, Florida; and WHEREAS, the Parties contemplate that the local community partners' matching funding for development of Burnham's Florida operations, with a value, as estimated by the local community partners, at least equal to the $155,272,000 that will be paid to Burnham as provided under the OTTED Agreement, will be comprised of commitments made under this Agreement, the Gift Agreements and the Orouud Lease, as well as a lease agreement for temporary space with Florida's Blood Centers (`°Temporary Space Lease'); agreements with Florida Hospital ORLIMALE wo's 317a== Ow dry ar, r= 6.,!" 2 AM I 98 and Orlando Regional Healthcare regarding tissue donations; commitment letters with LNLC regarding conveyance of a single family residence for use by Burnham executives, the grant of a corporate membership in the Lake Nona Golf & Country Club, two years' advertising spots and promotional opportunities during the Tavistock Cup, and establishment of a venture fund to invest in life sciences technologies; and an agreement to be entered into with Walt Disney World Co. regarding a display at Epcot; and WHEREAS, it is the policy of County and City to encourage and ' stimulate economic growth by attracting new businesses and assisting local expanding businesses that would otherwise expand elsewhere; and WHEREAS, the creation of new full-time employment opportunities for residents of County and City and the tax revenues resulting from business relocation or expansion locally is beneficial to the local economy; and WHEREAS, counties and cities may expend funds to attract and retain business enterprises; the use of public funds toward the achievement of such economic development goals and encouraging Burnham to expand to Florida constitute public purposes; and WHEREAS, the County enters into this Agreement pursuant to its home -rule authority, statutory authority provided under Florida Statutes Chapter 125, including without limitation Section 125.045, and the Florida 1w1ustzial Development Financing Act, Part % Chapter 159, Florida Statutes, which finds that economic development agreements of this nature achieve the public purpose of wise economic development and thereby implement the governmental purposes under the Constitution of Florida of providing for the health, safety and welfare of the people; and WHEREAS, the County hereby determines that the terms and conditions of this Agreement comply with the criteria and requirements of the Florida industrial Development Financing Act, Part II, Chapter 159, Florida Statutes; and WHEREAS, subject to the terms of this Agreement, County and City have determined that providing grant firnding to Burnham directly will provide indirect benefits to City and County through the anticipated creation of an entire industry cluster that will expand Orlando's and Orange County's economy and tax base; and WHEREAS, subject to the terms of this Agreement, Burnham desires to establish and operate its Florida operation at the Bumham Campus in the City of Orlando, in Orange County, Florida and Burnham's Business Plan anticipates the creation of approximately 300 Jobs within 10 years at said proposed facility; and WHEREAS, the Parties agree that the planning and development of the Permanent Facilities Site in a coordinated and complementary fashion is a goal of the Funding Parties and is expected to foster the creation of an industry cluster; and WHEREAS, it is the intent of County and City to cause the fiords provided pursuant to this Agreement to be used, among other things, to advance the essential government service of 2. ow.1WU ES7WM7a6 3176ZMM DHJ dl j 2/2 ?!2007 6:32 AM ILION improving the health of the citizens of Orlando and Orange County by promoting research and ` development for the prediction, treatment, prevention, and cure of disease, and WHEREAS, County and City establish herein criteria whereby Burnham, by complying � with those criteria, can become and remain eligible to receive the benefits outlined in this ; Agreement thereby fulfilling County's and City's desire to support projects which will enhance the prospects for local economic development; and WHEREAS, the Funding Parties acknowledge that the covenants and obligations being undertaken by them pursuant to this Agreement constitute the material inducement to Burnham to expand its operations into Orlando, without which Burnham would not have agreed to enter into this Agreement or agreed to expand its operations into Orlando; and WHEREAS, Burnham acknowledges that the covenants and obligations being undertaken by Burnham pursuant to this Agreement constitute the material inducement to the Funding Parties to provide the funding to encourage Burnham to expand its operations in Orlando, without which the Funding Parties would not have agreed to enter into this Agreement or agreed to provide.fimding to Burnham to assist in its expansion in Orlando; and WHEREAS, County and City each find and declare that it is in the public interest to enter into this Agreement with Burnam pursuant to the terms of this Agreement, and that the public purpose includes promotion of economic development, job growth, and research and development for the prediction, prevention, and treatment and/or cure of diseases that cost the state billions of dollars, and promotion of biotechnology research at state universities. NOW, THEREFORE, in consideration of the promises and mutual covenants herein -•� contained, and intwding to be legally bound hereby, the Parties agree as follows: PART I RECITALS The foregoing recitals are true and correct at the time of execution of this Agreement and are incorporated herein by reference. PART II DEFINITIONS All capitalized terms shall have the meaning set forth in Sehefte 1, which is attached hereto and incorporated herein by this reference. In addition, the team "Agreement" when used herein shall mean this Grant Agreement. PART M REPRESENTATIONS AND WARRANTIES A. Burnham's Representations and Warranties. As a material inducement to each of the Funding Parties to enter into this Agreement and to consummate the transactions 3. oRuMALWAMMS 317e2AM DW dry ZR7t10D7 802 AM contemplated, hereby, Burnham hereby represents and warrants to the Funding Parties that the following representations and warranties are true and correct as of the Effective Date and as provided in Part 1X.B.3. below, except as set forth in the disclosure letter dated as of the Effective Date from. Burnham to the Funding Parties attached hereto as Exhibit "A" and incorporated herein by this reference (the "Disclosure Letter). References to the actual knowledge of Burnham or information of which Burnham is aware shall refer to the knowledge or awareness of the Chief Bxacutive Officer, Chief Operating Officer and Vice President, Business Development of Burnham and, only if and when appointed, the Vice President, Operations of Florida of Burrnham (or equivalent officer position). 1. Burnham has been duly incorporated or organized and validly existing as a not- for -profit public benefit corporation under the laws of the State of California, which is the jurisdiction in which it is chartered Burnham is in good standing under the laws of the jurisdiction in which it is chartered and is duly qualified to do business as a foreign corporation under the laws of the State of Florida and of each other jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions other than Florida in which the failure to be so incorporated or organized and validly existing or to so qualify, in the aggregate, would not reasonably be expected to have a Material Adverse Effect. 2. Burnham has full corporate power to own or lease its properties and conduct its operations and has full corporate power.to enter into this Agreement and to carry out its obligations hawnder. 3. The Board of Trustees and officers of Burnham are empowered to make all business decisions with respect to Burnham, and such Board of Trustees has not delegated, Whether by contract or through its Articles of Incorporation or by-laws, any of the potvers to manage or operate Burnham to any other Person, except to the extent the Board of Trustees has delegated some of its powers to officers of Burnham or to its executive committee, its audit committee, its compensation committee, and such other committees as it is permitted to create under California non-profit corporation law. 4. This Agreement has 'been duly authorized, executed and delivered by Burnham and constitutes a valid and binding agreement of Burnham, enforceable against Burnham in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). 5. The authorization, execution and delivery of this Agreement by Burnham and the performance of its obligations under this Agreement by Burnham as of the .Effective Date do not: (i) require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority or court, or body or arbitrator having jurisdiction over Burnham or its assets or properties, except for such consents, approvals, authorizations, orders, registrations or qualifications of, or filings with, any governmental authority m connection with the construction or operation of the Temporary 'Facilities or the Permanent 4. MUMALESS%mm,e 717e7/" MU dy arG/= 4= AAA r Facilities, or except where the failure to obtain such consents, approvals, authorizations, orders, registrations or qualifications, or make such filings, would not reasonably be expected to have-a Material Adverse Ef ba; or (ii) conflict with, result in a breach or violation of or constitute a default under: (a) any contract, indenture, mortgage, deed of trust or loan or credit agreement, note, lease, or other agreement or instrument to which Burnham is. a party' or by which Burnham or any of its properties is bound; (b) the charter or by -laws of Burnham; or (c) to Burnham's actual knowledge, . any statute, rule or regulation or any judgment, order or decree of any governmental authority or court or any arbitrator applicable to Burnham, in each case with regard to clauses (a), (b) and (c), except for such conflicts, breaches, violations or defaults which would not reasonably be expected to have a Material Adverse Effect. 6. No legal or governmental proceedings or investigations to which Burnham is a party or to which the property of Burnham is subject are pending or, to the actud knowledge of Burnham, threatened, except for such proceedings or investigations which would not reasonably be expected to have a Material Adverse Effect 7. Burnham is not: (i) insolvent; (ii) left with unreasonably small capital with which to engage in its anticipated operations; or (iii) incurring debts or other obligations beyond its ability to pay such debts or obligations as they become due. 8. No proceeding in anticipation of merger, amalgamation, consolidation, . liquidation or dissolution of Burnham, or the sale of all or substantially all of the assets of Burnham is pending or has been submitted to the Board of Trustees of Burnham for approval. 9. To the actual knowledge of Burnham, Burnham possesses Governmental Licenses as and when necessary to conduct its operations in California or Florida, as applicable, except where the failure to have such Governmental Licenses would not reasonably be expected to have a Material Adverse Ef%ct. Burnham has not received written notice from the applicable federal, state, local or foreign regulatory authorities that it is in default or is not in compliance with the terms and conditions of any such Governmental Licenses, and, to the actual knowledge of Burnham, Burnham is in compliance with the terms and conditions of all such Governmental Licenses, in each case, except where the failure so to comply would not reasonably be expected to have a Material Adverse Effect. Burnham has not received written notice from the applicable federal, state, local or foreign regulatory authorities that any of such Governmental Licenses is invalid or no longer in full force and effect, and, to the actual knowledge of Burnham, all of such Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not reasonably be expected to have a Material Adverse Effect 10. Burnham has received a determination from the Internal Revenue Service that it meets the requirements of Section 50l (cx3) of the United States Internal Revenue Code, and Burnham is in material compliance with the terms of such determination. 11. Burnham has not received written notice of an event of default or material noncompliance by Burnham, and, to the actual knowledge of Burnham, Burnham is in material compliance, with the terms, conditions, Hiles, mandates and policy guidelines pa taining to all applicable federal,, state and private financial grants, sponsored research agreements and finding ORLIV EAL68TV8W5.8 $ \ 9178210028 OW &I Z22M 07 W2 AM 9.B contracts from which Burnham derives revenue, including, but not limited to, all related f[nancral and progress reporting and disclosure requirements, except for .any such event of default or noncompliance that. would not reasonably be expected to'have a Material Adverse Effect. 12. Burnham has not received written notice of material noncompliance by Burnham, and, to the actual knowledge of Burnham, Burnham is in material compliance, with all federal, state, local and foreign laws, statutes, ordinances, rules, regulations, decrees, orders, and permits applicable to -the operation of Burnham7s facilities and the conduct of its research activities and operations, including, without limitation, to the extent applicable: (i) Medicare, Medicaid, other federal, state and local health care and reimbursement laws and regulations; .(ii) insc=ce laws and regulations; and (iii) licensing and certificate laws and regulations covering any aspect of the operations of Burnham, except, in each ease, where such noncompliance would not reasonably be expected to have a Material Adverse Effect. 13. Branham has not received written notice of an event of default or material noncompliance by Burnham, and, to the actual knowledge of Burnham, Burnham is in material compliance with Legal Requirements as a result of its operations relating to Environmental Laws, except where such event of default or noncompliance would not reasonably be expected to have a Material Adverse Effect. 14. To the actual knowledge of Burnham, Burnham has obtained, and is in compliance with the conditions of, Environmental Permits, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect. 15. Burnham has not received written notice of any, and, to the actual knowledge of Burnham, there are no, past or present conditions or circumstances, including but not limited to pending changes in any Environmental Permits, that, to the actual knowledge of Burnham, would interfere with compliance by Burnham in all material respects with any Environmental Laws or Environmental Permits, except where such conditions, circumstances or changes would not reasonably be expected to have a Material Adverse Effect. 16. To the - actual knowledge of Burnham, there are no past or present conditions or circumstances at, or arising out of, the operations of Burnham, including but not limited to on -site or -off-site disposal or release of any chemical substance, product or waste, which are reasonably likely to give rise to: (i) liabilities or obligations of Burnham for any cleanup, remediation or oorrecxive action under any Environmental Laws; (ii) claims against Burnham arising under any Environmental Laws for personal injury, property damage, or damage to natural resources; (iii) liabilities or obligations incurred by Burnham to comply with any Environmental Laws; or (iv) fines or penalties against Burnham arising under any Environmental Laws; except in the case of each of (i), (ii), (iii) or (iv), for any noncompliance or condition or circumstances that would not reasonably be expected to have a Material Adverse Effect. 17. The Chief Executive Officer, Chief Operating Officer and Vice President.. Business Development of Burnham and, only if and when appointed, the Vice President, Operations of Florida of Burnham (or equivalent officer position) arc the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. 6. MLIV - 41ESTM5476A 91?$ZW 8 OW dH 2021, V $32 AM • P fi 1 , B. Burnham Agreements. 1. During the Term (as defined in Part 1R.A. below), Burnham shall provide the Funding Parties with written notice promptly (and in any, event within twenty (20) days) in the event that Burnham becomes aware of any event that causes any of the representations and warranties in Part M.A. not to be true as of any time during the Team. 2. During the Term, Burnham will cooperate with the Pmject Manager under the Development Obligation Agreement with respect to Governmental Licenses necessary for the construction of the Permanent Facilities, During the Term, Burnham shall provide the Funding Parties with written notice promptly (and in any event within twenty (20) days) in the event that Burnham has received written notice from the applicable federal, state, local or foreign regulatory authorities that it is in default or is noncompliant with the terms and conditions of any such Governmental Licenses, or, to the actual knowledge of Burnham, Burnham is not in compliance with the terms and conditions of all such Govermm=W Licenses, in each case, except where the failure so to comply would not reasonably be expocted to have a Material Adverse Effect. During the Term, Burnham shall provide the Funding Patties with written notice promptly (and in any event within twenty (20) days) in the event that Branham has received written notice from the applicable federal, state, local or foreign regulatory authorities that any of such Governmental Licenses are invalid or no longer in full force and effect, or, to the actual knowledge of Burnham, any of such Governmental Licenses is not valid and in fall force and effect, in each case, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not reasonably be expected to have a Material Adverse Effect. 3. During the Term, Burnham shall provide the Funding Parties -with written notice promptly (and in any event within twenty (20) days) in the event that Burnham has received written notice of, or, to the actual knowledge of Burnham, there are, any past or present conditions or circumstances, including but not limited to pending. changes in any Environmental Permits, that are likely to interfere with the construction of the Permanent Facilities, except where such conditions, circumstances or changes would not reasonably be expected to have a Material Adverse Effect. 4. Burnham will comply with the obligations of Burnham in the Ground Lease regarding the construction, operation, maintenance and repair of the Permanent Facilities on the Permanent Facilities Site during the Term (as defined in the Ground Lease) of the Ground Lease. C. County's Representations and Warranties. As a material inducement to Burnham, City and LNLC to enter into this Agreement. and to consummate the transactions contemplated hereby, County hereby represents and warrants to Burnham, City and LNLC that the following representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of County or information of which County is aware shall refer to the knowledge or awareness of the County Mayor, County Administrator and Deputy County Administrators. 1. County is a charter county and political subdivision of the State of Florida. 7. orn.»M' ssrezWU ofu dq moor era AM 99 2. County has all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. 3. This Agreement has been duly authorized by all necessary action of the Board of County Commissioners and executed and delivered by County and constitutes a valid and binding agreement of County, enforceable against County in accordance with its terms, except as the enforcement thereof maybe limited by banlnuptey, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcesamt of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at taw). 4. The authorization, execution and delivery of this Agreement by County and the performance of its obligations under this Agreement by County do not require the consent,' approval, authorization, order, registration or qualification of, or filing with, any governmental authority or court, or body or arbitrator having jurisdiction over County or its assets or properties, except of the Orange County Board. of County Commissioners, which has been obtained. S. Neither: (i) the authorization, execution and delivery of this Agreement by County; (ii) the undertaking of any.of the obligations set forth in this Agreement by County; nor (iii) the obligations imposed on or rights granted to Burnham, City or LNLC pursuant to this Agreement, conflict with, result in a breach or violation of, or constitute a default under: (a) County's Charter, County's Code of Ordinances, County's administrative code, (b) any contract, indenture, mortgage, deed of trust or loan or credit agreement, note, lease or other agreement or instrument to which County is a party, or (c) to County's actual knowledge, any statute, rule or regulation or any judgment, order or decree of any governmental authority or court or any arbitrator applicable to County. 6. No legal or governmental proceedings or investigations are pending or, to the actual knowledge of County, threatened to which County is a party or to which the property of County is subject, except for such proceedings or investigations which would not reasonably be expected to materially and adversely affect the ability of County to perform its material obligations under this Agreement. 7. The County Mayor, County Administrator and Deputy County Administrators are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. D. County Agreements. During the Term, County shall provide Burnham, City and LNLC with written notice promptly (and in any event within twenty (20) days) in the event that County becomes aware of any event that causes any of the representations and warranties in Part M.C. not to be true as of any time during the Term. E. City's Representations and Warranties. As a material inducement to Burnham, County and LNLC to enter into this Agreement and to consummate the transactions contemplated hereby, City hereby acknowledges, represents and warrants to Burnham, County 8. 0MIVtEALESrAW7U 317ef?MO DMJ d f 20=7 !'..fit AM 99 and LNLC that the following moknowledgments, representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of City or information of which City is aware shall refer to -the knowledge or awareness of the City Mayor, City Chief Administrative Officer and City Deputy Chief Administrative Officers, 1. City is a municipal corporation organized and existing under the laws of the State of Florida. 2. City has all requisite power and authority to enter into this Agreement and to carry out all its obligations hereunder. 3. This Agreement has been duly authorized by all necessary action of City Council and executed and delivered by City and constitutes a valid and binding agreement of City, enforceable against City in accordance with its terms, except as the enforcement thereof may be Uimited by bankruptcy, insolvency (including, without 'limitation, all laws relating to fraudulent transfers), -reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). 4. The authorization, execution and delivery of this Agreement by City and the performance of its obligations under this Agreement by City do not require the oonseut, approval, authorization, order, registration or qualification of; or filing with, any governmental authority or court, or body or arbitrator having jurisdiction over City or its assess or properties, except of the Orlando City Council, which has been obtained. 5. Neither: (i) - the authorization, execution and delivery of. this Agreement; (ii) the undertaking of any of the obligations set forth in this Agreement by City, nor (iii) the obligations imposed on or rights granted to Burnham, County or LNLC, .pursuant to this Agreement, conflict with, result in a breach of violation of, or constitute a default under: (a) City's Chanter, City's Code of Ordinances, City's Policy and Procedures Manual, (b) any contract, indenture, mortgage, deed of trust or loan or credit agreeement, note, lease or other agreement or instrument to which City is a party, or (c) to City's actual knowledge, any statute, rule or regulation or any judgment, order or decree of any governmental authority or court or any arbitrator applicable to City. 6. No legal or governmental proceedings or investigations are pending or, to the actual knowledge of City, threatened to which City is a party or to which the property of City is subject, except for such proceedings or investigations which would not reasonably be expected to materially and adversely affect the ability of City to perform its material obligations under this Agreement. 7. The City Mayor, City Chief Administrative Officer and City Deputy Chief Administrative Offlom are the parties who would reasonably 'have knowledge with respect to the foregoing representations and warranties. P. City Agreements. During the Term, City shall provide Bumham, County and LNLC with written notice promptly (and in any event within twenty (20) days) in the event that 9. 0RLIwWALa3r%WM7a.e MMMM ow aK Z22=07 6:32 AM i City becomes aware of any event that causes any of the representations and warranties in Part III.E. not to be true as of any time during the Term. G. LNLC's Representations and Warranties. As 'a material inducement to Burnham, County and City to enter into this Agreement and to consummate the transactions contemplated hereby, LNLC hereby aclmowledges, -represents and warrants to Burnham, County and City that the fallowing acknowledgments, representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of LNLC or information of which LNLC is aware shall refer to the knowledge or awareness of the President and Vice Presidents of.LNLC. 1. LNLC is a limited liability company organized and existing and in good standing under the laws of the State of Florida and is the fee simple owner of the Burnham Campus as of the Effective Date. 2. LNLC has full corporate power to own or lease its properties and conduct its operations and has all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. 3. This Agreement has been duly authorized by all necessary action of LNLC and executed and delivered by LNLC and constitutes a valid and binding agreement of LNLC, enforceable against LNLC in accordance with its terns, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). 4. The authorization, execution and delivery of this Agreement by LNLC and the performance of its obligations under this Agreement by LNLC do not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority or court, or body or arbitrator having jurisdiction over LNLC or its assets or properties. 5. Neither: (i) the authorization, execution and delivery of this Agreement by LNLC; (ii) the undertaking of any of the obligations set forth in this Agreement by LNLC; nor (iii) the obligations imposed on or rights granted to Burnham, County or City, pursuant to this Agreement, conflict with, result in a breach or violation of, or constitute a default under: (a) LNLC's articles of organization or operating agreement, (b) any contract, indenture, mortgage, deed of trust or loan or credit agreement, note; lease or other agreement or instrument to which LNLC is a party, or (c) to LNLC's actual knowledge, any statute, rule or regulation or any judgment, order or decree of any governmental authority or court or any arbitrator applicable to LNLC. 6. No legal or governmental proceedings or investigations are pending or, to the actual knowledge of LNLC, threatened, to which LNLC is a party or to which the property of LNLC is subject, except for such proceedings or investigations which would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement. 10. OPo.11pFMIST1B8UMS 31 78 OHJ diJ 227M7 8:2 AM mN e `I\ 7. LNLC is not: (1) insolvent; (ii) left with unreasonably small capital with { which to engage in its anticipated operations; or (iii) incurring debts or other obligations beyond its ability to pay such debts or obligations as they become due. 8. To the actual knowledge of LNLC, LNLC possesses all Governmental Licenses issued by the appropriate fedearal, state, local or foreign regulatory authorities necessary to conduct its operations, except where the failure to have such Governmental Licenses would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement; to the actual knowledge of LNLC, LNLC is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not .reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement; to the actual knowledge of LNLC, all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Govern rental Licenses or the failure of such -Governmental Licenses to be in full force and effect would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement. 9. To the actual knowledge of LNLC, LNLC is in material compliance with all Legal Rer *oments as a result of its operations relating to Environmental Law, except where such noncompliance; would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agrewnent. 10. To the actual knowledge of LNLC, LNLC has obtained, and is in compliance with the conditions of, all Environinentat Permits, except where a wh noncompliance would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement. 11. To the actual knowledge of LNLC, there are no past or present conditions or circumstances, including but not limited to pending changes in any Environmental Permits, the#, to the actual knowledge of LNLC, would interfere with compliance by LNLC in all material respects with any Environmental Law or Environmental Permits, except where such conditions, circumstances or changes would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement. 12. To the actual knowledge of LNLC, there are no past or present conditions or circumstances at, or arising out of, the operations of LNLC, including but not limited to on- site or off -site disposal or release of any chemical substance, product or waste on the Burnham Campus, which may give rise to: (i) liabilities or obligations for any cleanup, remediaiion or corrective action under any Environmental Law; (ii) claims arising under any Environmental Law for personal injury, property damage, or damage to natural resources; (iii) liabilities or obligations incurred by LNLC to comply with any Environmental Law; or (iv) fines or penalties arising under any Environmental Law; except in the case of each of (i); (ii), (iii) or (iv), for any noncompliance or condition or circumstances that would not reasonably be expected to materially and adversely affect the ability of LNLC to perform its material obligations under this Agreement. 11. PPLMEALEune86{MG si7eZ%M DHJ c" MM? 832 AM Eno 13. The President and Vice Presidents of LNLC are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. H. LNLC Agreements. During the Term, LNLC shall provide Burnham, City and County with written notice promptly (and in any event within twenty (20) days) in the event that LNLC becomes aware of any event that causes any of the representations and waxranties in Part M.G, not to be true as of any time during the Term. PART IV BURNHAM'S OPERATION IN FLORIDA A. Purpose. Burnham or a division thereof or a wholly -owned subsidiary formed by Burnham .shall establish a biomedical research institution and campus at the Burnham Cmnpus. If Bm ili m organizes a division or incorporates or organizes a subsidiary of Burnham for this purpose, then an references in this Agreement to Bur4 m shall also be deemed to include such division or subsidiary, which entity shall be jointly and severally liable with Burnham with respect to all obligations under this Agreement and Burnham shall cause such subsidiary to execute this Agreement or to execute a joinder of this Agreement, if the subsidiary is not formed and existing as of the Effective Date of this Agreement. The Parties acknowledge and agree that Burnham is an independent research institute controlled and directed by its Board of Trustees and management; that Burnham controls and directs its research and related affairs; and that the Funding Parties shall not control or direct Burnhaws research or its related affairs. B. Burnham's Tax - Exempt Status. The Funding Parties acknowledge and agree that maintenance of Burnham's tax - exempt status is critical to the goals set forth herein, and the Funding Parties agree they shall impose no requirements upon Burnham that would jeopardize Burnham's tax - exempt status for the purposes of federal, state and local laws nor shall County or City seek from Burnham, any payments in lieu of taxes or its equivalent for property %ad valorem tax revenues not collected by County or City as a result of Burnham's tax - exempt status. C. Burnham Funding. Other than the obligations set forth in this Agreement and the agreements contemplated hereunder, the Funding Parties agree that they shall not impose any requirements upon Burnham that would reasonably be expected to jeopardize: (i) Burnham's federal financial grants; or (ii) Burnham's ability to obtain federal financial grants in the fure; or (iii) funding under the OTTER Agreement. Burnham warrants that as of the Effective Date, nothing herein, based on Bumham's actual knowledge, would jeopardize Burnham's ability to obtain fimdmg under existing or future federal financial grants or the grant under the OTTED Agreement. Notwithstanding the foregoing, nothing herein shall limit the rights of the Funding Parties to pursue and obtain all applicable remedies provided herein for breach of this Agreement. D. Other Fending Sources. Nothing contained in this Agreement shall in any way limit or restrict Burnham's right to receive funds from sources other than the Funding Parties. E. Ownership of Discoveries, Inventions and Other Technology. The Parties acknowledge and agree that, as between Burnham, on the one hand, and the Funding Parties, on the other hand, all discoveries, inventions and other technology developed by or on behalf of 12, OFMIVW- 1LESTON75A 31757== OFU dN =ZrAm 922 AM s • � R Burnham through Burnham's operations or its employees' activities shall be owned exclusively by Burnham, and no Funding Party shall have any legal interest, tight or license in any such discoveries, inventions and other -technology solely by virtue of this Agreement or any of the other agreements contemplated hereby or the rights and obligations of the parties hereunder or , thereunder. Nothing contained in this Agreement shall in any way limit or restrict the right of ' Burnham to commercialize or home-its discoveries, inventions and other technology. PART V COVENANTS AND LIMITATIONS OF THE FUNDING PARTIES A. Subject to Bwnbam's performance of it obligations under this Agreement, the Funding Parties hereby covenant and agree as follows: . 1. Temporary Facilities. The Funding Parties agree to provide finding to Burnham for the planning, design; permitting, and construction of the Temporary Facilities subject to and in accordance with the terms of this Agreement by funding or reimbursing Burnham for Project Costs in an amount not to exceed Two Million Dollars ($2,000,000.00). This obligation shall be drawn solely from the Grant Funds. The funding obligation hereunder is subject to the Funding Pasties' reasonable determination that the Temporary Facilities can be used for the use specified under the Temporary Space Lease. The Parties hereto agree that all reasonable efforts shall be made so that fixtures and equipment purchased with Orant Funds will be relocated from the Temporary Facilities to the Permanent Facilities for Burnham's continued use. No facture or equipment in excess of $5,000 which was purchased with Grant Funds shall be removed from the Temporary Facilities (except as it may be moved for Burnham's use in the Permanent Facilities) without the prior written consent of the Funding Parties. 2. Burnham Campus. a. Donation of Burnham Campus. LNLC shall donate and convey to Burnham the Burnham Campus, in the approximate location shown on Exhibit "B" attached hereto and incorporated herein by this reference, less the Permanent Facilities Site as generally depicted. on Exhibit "C" attached hereto and incorporated herein by this refmvnce, subject to and in accordance with the terms of the Gift Agreement (Surplus Land) attached hereto as Exhibit "D" and incorporated herein by this reference. b. Permanent Facilities Site — Funding, Conveyance and Ground Lease. (i). The Funding .Parties agree to provide funding to Bumham for the planning, design, permitting, and construction of the Permanent Facilities by funding Project Cost, subject to and in accordance with the terms of this Agreement in an amount not to exceed the Grant Funds. (ii) LNLC shall donate and convey to County the Permanent Facilities Site, subject to and in accordance with the terms of the Gift Agreement (Permanent Facilities) attached hereto. as Exhibit "E" and incorporated herein by this reference. 13. ORLIMALFS11881 ".6 31 76?/ M DFN dN 2naM7 8:32 Art 9B �+ (iii) Concurrently with the closing under the Gift Agreement (Permanent Facilities), County and Burnham shall enter into the Ground Lease for the Permanent Facilities Site attached hereto as Exhibit "r and incorporated herein by this reference, together with a memorandum thereof; which memorandum shall be recorded in the Public Records of Orange County, Florida. (iv) Concurrently herewith, the Funding Parties shall enter into the Funding Parties Agreement attached hereto as Exhibit "G" and incorporated herein by this reference, together with a memorandum thereof, which memorandum shall be recorded in the Public Records of Orange County, Florida. 3. Escrow Account for Grant Funds. The Funding Parties shall deposit the Chant Funds in the Account as provided herein exclusively for use for Project Cost in accordance with the terms of this Agreement. In accordance with the teams of the Escrow Agreement attached hereto as Exhibit "H" and incorporated herein by this reference, the Escrow Agent shall be the Orange County Comptroller. The interest earned on the Grant Funds while in the Account shall remain in the Account and be added to the Available Funds. The Funding Parties shall fund the Account as follows: a. Base Funding Amount. Within thirty (30) days after the Effective Date, the Funding Parties shall fund a portion of their Tier I Funds, in the Base Funding Amount,. into the Account, of which $763,000 shall be contributed by LNLC, $2,968,000 shall be contributed by City and $3,269,000 • shall be contributed by County. Upon the Funding Parties' receipt and approval of the Spend Down Schedules from Burnham, the Base Funding Amount may be adjusted with agreement of the Funding Parties to assure that adequate cash will be available to disburse funds to pay-for construction on a timely basis. Upon such- adjustment, the Base Funding Amount will be adjusted accordingly. No such adjustment shall cause the Available Funds to be exceeded. b. Replenishment of Account — Tier l Funding. On or before the seventh (7th) day of eacb month, commencing the month following the initial funding of the Account, Burnham or the Project Manager will submit a Draw Request to the Funding Parties and the Escrow Agent simultaneously. Each of the Funding Parties will promptly (and in any event within twenty (20) days after receipt) review the Draw Request(s) and notify the Escrow Agent, the other Funding Parties and Burnham of its approval or disapproval of such Draw Request, provided that a Funding Party may notify the other Funding Parties and Burnham if the documentation provided to support the Draw Request is incomplete; and Burnham shall coordinate with the Project Manager to provide any such additional documentation to make such Draw Request complete (and such twenty (20) day period will be extended as reasonably necessary to give the Funding Parties time to review any such additional documentation); and provided further that a Funding Party shall only be entitled to disapprove of a Draw Request for any of the following reasons, as applicable: (i) to the extent that the Work evidenced by the Draw Request, or any prior Draw Request, was not performed in accordance with the Construction Contract Documents, with regard to the relevant portion of the Draw Request; or (ii) such Funding Party reasonably determines (after due investigation) that the Available Funds together with any funds made available for the Permanent Facilities by Burnham or any other Persons are not sufficient to complete the Permanent Facilities in accordance with the governing 14. ORL MALUM86478.6 317620= DW dN 2J22l W 8az AM Construction Contracts; or (iii) the Prune Contractor has been declared to be in material default under the Construction Contract, which default has not been cured in accordance with the applicable notice and cure ,periods; (iv) insurance and/or surety bonding as required under the applicable Construction Contract in accordance with the terms of the Development Obligation Agreement has lapsed or otherwise is not in full force and effect; or (v) -certification has not been duly issued of sums payable by the applicable Architect or Engineer of record, or by the Design Professional providing construction administration if not the Architect or Engineer of record; or (vi) appropriate Waivers and Releases are not included with the Draw Request; or (vii) if; prior to Final Completion, there is no Development Obligation Agreement in effect. In the event any Funding Party fails to approve or disapprove of a Draw Request within the time period set forth above, such Party shall be deemed to have approved of such Draw Request. Within twenty (20) days of any disbursement of fiords from the Account pursuant to the Draw Request, each Funding Party will replenish its respective share into the Account in accordance with the Tier 1 Funds percentage breakdown. Once LNLC has funded its obligation with respect to the Tier 1 Fonds in Rill, LNLC's portion of the funds held in the Account will be applied proportionately to payment of approved Draw Requests as provided above, without an obligation for replenishment, until such amount is extinguished. c. Replenishment of Account — Tier 2 Funding. After expenditure of all the Tier 1 Funds ( notioe of which will be given by the Escrow Agent to all the Parties Burnham or the Project Manager will submit its Draw Requests to LNLC, City and County, which shall continue to review the Draw Requests and notify Escrow Agent of theft approval or disapproval as provided in subsection b. above. Within twenty (20) days of any disbursement of fiords from the Account pursuant to the Draw Request, City and County will replenish their respective share into the Account in accordance with the Tier 2 Funds percentage breakdown. Once City liar funded its obligation with respect to- the'Tier 2 Funds in f&, City's portion of the ftmds held in the Account will be applied proportionately to payment of approved Draw Requests as provided above, without an obligation- for replenishment by City, until such amount is extinguished. d. Replenishment of Account — Tier 3 Funding. After expenditure of all the Tier 2 Funds (notice of which will be given by the Escrow Agent to all the Parties), Bumhann or the Project Manager will submit Draw Requests to LNLC, City and County, which shall continue to review the Draw Requests and notify Escrow Agent of its approval or disapproval as provided in subsection b. above. Within twenty (20) days of any disbursement of funds from the Account pursuant to the Draw Request, County will replenish the Account until County has funded its obligation with respect to the Tier 3 Funds in full; thereafter, County's portion of the funds heId'in the Account will be applied to payment of approved Draw Requests as provided above, without an obligation for replenishment, until such amount is extinguished. e. Requirement for Funding Parties' Obligations. The Parties aclmowledge that, at all times prior to Final Completion, the Funding Parties' obligation to direct the Escrow Agent to disburse funds from the Account and to replenish the Account under Part V.A.3.b., e, and d. is subject to there being in place (at the time replenishment is required) in accordance with the terms of the Development Obligation Agreement contracts for construction of the Permanent Facilities through Final Completion at a total cost that is within the Available 15. ORUVWLE87 6476.8 5178218628 DHJ dq 2/2212067 8:52 AM • ! Funds (together with, at Burnham's election, any additional funds made available for the Permanent Facilities by Burnham or any other Persons), f. Payment of Draw Requests. Following approval of all or part of a Draw Request by the applicable Funding Parties as set forth in b., o. and d. above, the Escrow Agent will make payment of the approved amount from the Account to Burnham as set forth in the Escrow Agreement. Thereafter, upon a Funding Party's request, as appropriate, Burnham or the Project Manager shall provide documentation to the Funding Parties and Escrow Agent to certify that payment has been made to the appropriate Contractor, Consultants, Design Professional, Vendors and - Suboontractors. Upon receipt of payment from the Escrow Agent with respect to any Draw Request, Burnham or the Project Manager shall (i) transmit payment to the Design Professional, to the Contractor, to each Consultant, and to each Vendor or other payee, in the exact amount received from the Escrow Agent for the service or Work ,performed by or materials and equipment delivered by each or for the other payment of Project Cost, as evidenced in the approved (or deemed approved) Draw Request, within five (5) Business Days from the date of Burnham's receipt of such payment from the Escrow Agent or (ii) immediately notify Funding Parties and Escrow Agent in writing of any amount not paid and promptly return said amount to the Account. Upon Final Completion, Burnham or the Project Manager shall provide the Funding Parties and Escrow Agent evidence thereof; and Escrow Agent shall disburse to Burnham from the Account the sun approved (or deemed approved) by the Funding Parties for disbursement for the final Draw Request under the Development Obligation Agreement: The remaining amounts in the Account, including the Laboratory Allowance and Retainage shall continue to be disbursed in accordance with the Draw Request procedure referenoed above until the balance of the Escrow Property in the Account is exhausted; provided, in the event there would otherwise be an amount less than or equal , to $5,000.00 left in the Account, such amount shall be disbursed as part of the final Draw Request without Burnbam's having identified such amount as a reimbursement for a specific Project Cost at such time; provided, further, Burnham shall be required to utilize such amount for Project Cost subsequent thereto. Notwithstanding anything contained herein to the contrary, any fiords remaining in the Account as of the em ier of the 'exercise of the Option under the Ground Lease or the twelfth anniversary of the Effective Date of the Escrow Agreement, shall be disbursed to County for further disbursement to the Funding Parties in accordance with the teams of the Funding Parties Agreement. g. Promdures for Disapproved Thaw Requests — In the event that one or more of the Funding Parties disapproves of a Draw Request (or any portion thereof) in accordance with Part V.A.3.b. herein,, the following procedures shall apply. (i) The Funding Party that disapproves of the Draw Request (or any portion thereof) shall simultaneously provide a written explanation of the reasons .for the disapproval (the "Dispute Explanation') to Burnham, the Project Manager (for any matter prior to Final Completion), the other Funding Parties, and the Dispute Resolution Panel as soon as possi'ble via facsimile and U.S. Mail, and in no event later than the conclusion of the .twenty (20) day-period described in Part V.A.3.b. herein. The amount of the Draw Request disputed by the Funding Patty(ies) will be known as the "Disputed Amount". 16. ORLIU ALESTWW &S 3178?MM OW dN 222=7 8:52 AM • k Mk (ii) The .Disputed Amount will be funded without delay as part of the Draw Request according to the procedures described in Part V.A.3.b. herein; (iii) The Funding Parties, Burnham, and the Project Manager (for any matter prior to Final Completion) shall meet and attempt to resolve the Disputed Amount of the Draw Request within five (5) Business Days after the date of transmission of the Dispute Explanation. The Parties agree to provide one another all information reasonably necessary to determine whether such Funding Party was in fact entitled to disapprove of such Draw Request. If the dispute cannot be resolved informally, then Burnham, or the Project Manager (for any matter prior to Final Completion), shall simultaneously provide a written response to the Dispute Explanation (the "Dispute Response') to the Handing Parties, Burnham and the Dispute Resolution Panel within fifteen (15) Business Days after date of transmission of the Dispute Explanation. The Dispute Resolution Panel shall hold a hearing and issue a written decision whieh must determine whether the disapproval was proper or improper, with any explanation the Panel may offer within fifteen (15) Business Days of its receipt of the Dispute Response. The decision of the Dispute Resolution Panel shall be binding on all Parties (the "Final Determination'). (iv) In the event that the Dispute Resolution Panel determines that the Funding Party's disapproval of the Draw Request was proper, the next Draw Request shall require the Escrow Agent to disburse the Disputed Amount to the Funding Parties according to their pro-rata contribution. Additionally, Burnham shall pay or cause the payment of an amount equal to the Disputed Amount into the Account within twenty (20) days after the Final Determination. It no event shall the Available Funds be allowed to be less than the sum of all uruwolved Disputed Amounts. 4. Expedited Processing of Construction Permits; Florida Energy Code. Burnham or its authorized representative, assignee or agent shall submit to City such applications and documentation and' comply with such requirements and procedures as are normally and customarily required for obtaining permits required to be issued by City for the construction of the Temporary Facilities, Permanent Facilities, and Burnham Campus. City shall use its reasonable best efforts to expedite processing of such construction permits in an effort to assist Burnham in achieving its development and construction milestones related to the Temporary Facilities, Permanent Facilities, and Burnham Campus. To that end, the City will appoint a team of City staff members, which team shall include at least one deputy director of the Economic Development Department (the `Burnham Assistance Team ") to assist Burnham in the construction permits process, including, but not limited to, the submission of applications for such construction permits and expediting the processing of such applications. In addition, the Burnham Assistance Team will hold one or more pro- application meetings with Burnham and its representatives, and, thereafter, will meet with Burnham or its representatives at least once a month for the purpose of facilitating and expediting the processing of such construction permits and construction-related inspections. City will use its best efforts to review all plans submitted to City within fourteen (14) days of such submission and -to perform all site and building inspections within two (2) Business Days of receipt of a written request for such inspections. Notwithstanding the foregoing, City shall not be obligated to waive any applicable requirements of the City Land Development Code and any applicable building, fire and life safety codes. At Burnham's election, Burnham may use a third party inspection service to perform any such site 17. oru7V�.E81 S"MA �.. . 3176ZV= DMJ dr ZW2DD7 SM AM • r and building inspections to be performed by City. To the extent that the Temporary Facilities are located within unincorporated Orange County, all references to City in the foregoing provisions shall be deemed to be applicable to County. To the extent that the signature of the landowner is required in connection with the application for or processing of the construction permits for the Permanent Facilities Site, County or LNLC, as applicable, shall execute any such application or petitions as and when requested by Burnham or its authorized representative, assignee or agent. The parties, acknowledge that the operation of the Temporary Facilities and the Perna Wt Facilities will require a high-level of air turnover, perhaps as frequently as twelve times per hour. The parties further acknowledge that Section 101.0 of the Florida Energy Code expressly provides that it is a statewide uniform code that shall not be made more stringent or lenicatby local government. The parties shall expeditiously cooperate in Burnham's efforts to obtain from cognizant state officials such waivers or exemptions from Burnham's compliance with Section 101.5.7 of the Florida Energy Code as are reasonably required requested by Burnham, provided that such cooperation shall be at no cost, expense or significant administrative burden to the Funding Patties. S. Facilities Construction Funding Limitations. The total monetary funding amount being committed jointly by the Funding Parties pursuant to this Agreement for Burnham to ply design, permit and, construct both the Temporary Facilities and the Permanent Facilities, including without limitation site work and infrastructure and all Project Cost, shall not exceed the Grant Funds (together with any interest earned on such funds escrowed in the Account). The Parties agree that the initial estimate of the costs of planning, designing, permitting and constructing the Temporary Facilities is $2,000,000. Based upon the initial budget for the Permanent Facilities prepared by the Project Manager in cooperation with Burnham as of the Effective Date, a copy of which has been provided to the Funding Parties, the Parties believe that the Temporary Facilities- and -thee Permanent Facilities -can be planned, permitted, designed and constructed within the Grant Funds. 6. Operations Contribution. LNLC shall provide a contribution in the aggregate amount of Ten Million Dollars ($10,000,000) to provide additional financial support to Burnham for its operations, inchiding its operations in Florida (the "Operations Contribution "). LNLC shall contribute Six Million Six Hundred Thousand Dollars ($6,600,000) no later than sixty (60) days after the Effective Date and shall contribute Three Million Four Hundred Thousand Dollars ($3,400,000) within three (3) years after the Effective Date. It is acknowledged that LNLC's obligation hereunder may be performed by an affiliate of LNLC. The Parties hereto understand and agree that Burnham, in its discretion, may place any or all of the Operations Contribution in Burnham's endowment fund. Burnham's completion and occupancy of the Permanent Facilities and Burnham's performance of all other material obligations then due under this Agreement are conditions precedent to LNLC's obligation to Rind the last Three Million Four Hundred Thousand Dollars ($3,400,000) of the Operations Contribution. 7. Philanthropy Drive Guarantee. The Parties aolmowle dge that the Orlando- Orange County community is in the midst of a philanthropy drive, the total goal of which is to raise .Fifteen 1ltillion Dollars ($15,000,000) to be contributed to Burnham. With approximately three years remaining in the drive, approximately Five Million Dollars ($5,000,000) in private donations has been pledged by Persons in the Orlando- Orange County Community; the 18. 0RLiVWAM6T1666[16.6 317620= OW dq 2/22!2007 6:32 AM 90 '4%* remaining pledge goal from Persons in the Orlando- Orange County Community is Ten Million Dollars of cash (not in -kind) pledges, which may be payable immediately or on a pro rata basis over a period of up to five -(5) years (the " Remainfng Goal'). County and City agree to co- guarantee equally any shortfall in theRemaimng Goal by paying to Burnham no later than three years after the Effective Date any difference between the Remaining Goal -and the aggregate amount pledged to Burnham from the philanthropy drive as of that date (the, "Guaranteed Difference"}. When appropriate, and reasonable, Burnham will assist in articulating. its mission and vision to individuals or groups arranged by those local entities involved in the philanthropy drive.. City and County shall each be liable for one -half of the Guaranteed Difference, however, neither City nor County shall be liable to each other or to Burnham for more than one -half of the Guaranteed Difference. This Agreement provides no restriction on the use of funds raised in the philanthropy drive from entities that are not Parties to this Agreement; however, Burnham shall account for the Guaranteed Difference under the audited financial statements for Burnham's Florida operations as provided in Article 7 of the OTTED Agreement, and shall use the Guaranteed Difference only in support of its Orlando operations, and to the extent feasible, shall expend .the Guaranteed Difference locally. In the event this Agreement is terminated under Part DLB.2. or Part IX.133., Burnham shall return to County and City all portions of the Guaranteed Difference that had not been expended by Burnham as of the date of termination based upon each such party's pro rata contribution thereto. Burnham's completion and occupancy of the Permanent Facilities and Burnham's performance of all other material obligations then due under this Agreement are conditions precedent to City's and County's obligation to provide Burnham the Guaranteed Difference. 8. Spend Down Schedules. Within one hundred twenty (120) days after the � Effective Date, Burnham shall provide the Funding Parties with two Spend Down Schedules in form and content reasonably- acceptable - to the Funding Parties: the first shall- identify the estimated amount -and timing of the Grant Funds Burnham will reasonably require for the design, planning, permitting and construction of the Temporary Facilities and the second shall identify the estimated amount and'timing of the grant Funds Burnham will reasonably require for the design, planning, permitting and construction of the Permanent Facilities. Burnham shall provide the Funding Parties with periodic updates of the Spend Down Schedules. 9. Independent Obligations. All Parties hereto understand and agree that each of the Funding Parties enters this Agreement in its independent capacity and unless specifically stated to the contrary herein, none shall be deemed liable for the obligations, acts, or omissions of another Funding Party hereunder. Burnham and each of the Funding Parties acimowledge and agree that the failure of any of the Funding Parties to perform an obligation hereunder shall not render any other Funding Party or combination thereof responsible or liable far said failure. However, in the event any Funding Party fans to perform any of its obligations hereunder and such' failure is reasonably anticipated to result in the breach of this Agreement, thee: (a) each other Funding Party agrees to reasonably cooperate in Burnham's pursuit of remedies available to it as to such breaching party; and (b) any other Funding Party, at its option but without obligation, may perform the obligation for the preservation of this Agreement. Thereafter, the Funding Party that performed another Funding Party's obligation by operation of this Agreement shall have assignments from the other Parties to the extent of the obligations so funded, of their .respective rights and interests in this Agreement, to compel the underlying 19. aw.lUWALESTU"7a e 317EZWU DHJ; j 7 VM07 4:32 AM Y iv obligation and shall have all equitable remedies available, including subrogation rights, against the nonperforming Funding Party. B. The Parties hereby acknowledge the following limitations: 1. Acknowledgment of Governmental Limitations. The Parties acknowledge and agree that this Agreement shall not limit or restrict County's or City's discretion in the exercise of their respective governmental or police powers and shall not constitute a delegation of governmental authority or police powers to Burnham. The Parties aelmowledge and agree that nothing in this Agreement in any way restricts the' legislative, quasi - judicial or executive discretion of the Board of County Commissioners or, staff of the Board of County Commissioners or City Council or the staff or appointed officials of City regarding the contents of any of its applications, does not guarantee any particular results for Burnham in connection with its applications for Permits, and does not give rise to any enforceable right by any party to require any particular results on the application. The Parties further acknowledge that all governmental actions to be taken by the Board of County Commissioners or staff of the Board of County Commissioners or City Council or the staff or appointed officials of City and quasi - judicial boards regarding the Burnham Campus shall be in conformance with applicable laws and ordinances with no guarantees or agreement by County or City as to any particular recommendation or approval. 2. Governmental Authority. Nothing in this Agreement shall be construed to waive or limit County's governmental authority as a political subdivision of the State of Florida, nor City's governmental authority as a municipality, to regulate Burnham or its operations. County's and City's respective obligations under this Agreement are made in a proprietary capacity, rather than imp a gQVernmdntal capacity and such agreements shall not be construed as limiting, prohibiting or eliminating the obligation of the Parties to comply with all applicable rules, regulations, ordinances, statutes and laws, nor alter or impair County's or City's governmental fimetions, including, without limitation, County's or City's right to lawfully exercise its regulatory authority over the development of the Temporary Facilities or the Permanent Facilities, nor as enabling, permitting, or creating any cause of action or claim arising out of the lawful exercise of County's or City's governmental authority; provided, however, that nothing in this Agreement shall be construed to limit the ability of City. or County, acting in proprietary capacities for defaults under this Agreement. PART VI COVENANTS OF BURNHAM A. Subject to the Funding Parties' performance of their respective obligations under this Agreement:Temporary Facilities. No later than thirty (30) days after the Effective Date, Burnham shall enter into the Temporary Facilities Lease and, pursuant to the terns of this Agreement, agreement(s) for the construction of the Temporary Facilities; provided that Burnham may extend such period to sixty (60) days after the Effective Date as to any agreement for construction of the Temporary Facilities if such agreement is in process but has not been completed by thirty (30) days after the Effective Date. The Temporary Facilities shall serve as the location of Bur nham's Florida operations until Burnham has occupied the Permanent 20. oRLt neWM8 »7W=e 13W cry zatnW W2 A Facilities. Burnham shall work. diligently to achieve completion of the build -out of the Temporary Facilities. B. Development Obligation Agreement. Concurrently herewith, Burnham shall enter into the Development Obligation Agreement in the form attached hereto as Fxhiblt "I" for the planning, designing, permitting and construction of the Permanent Facilities with an experienced Project Manager at a cost within the Available Funds (together with, at Burnham's election, any additional funds made available for the Permanent Facilities by Burnham or any other Persons). Burnham will use reasonable best efforts to cause the Project Manager to comply with its obligations under the Development Obligation Agreement, and the Funding Parties will provide reasonable assistance in Burnham's efforts to do so, as requested by Burnham. Burnham may not amend the Scope of Work under the Development Obligation Agreement if such amendment would result in the Available Funds being insufficient for completion of the Permanent Facilities, unless the Funding Parties approve of such amendment, or Burnham agrees to bear all costs and expenses in excess of the Available Funds that are necessary to complete the Permanent Facilities and provides evidence to the Funding Parties of the source and availability of additional funds sufficient for such purpose. In the event that Burnham or the Project Manager incurs direct incremental costs for construction of the Permanent Facilities that would not have been incurred but for a default or delay attributable to any one or more of the Funding Parties insofar as it results dimly from a failure to timely replenish the Account in accordance with the terms of this Agreement, or caused by a default or delay attributable to Burnham, the defaulting or delaying party shall be responsible for its pro rata share of such costs to the extent_ attributable to its default or delay. Notwithstanding arty other provision of this Agreement or any agreement contemplated hereunder, no Funding Party shall have liability for such costs if such party has �p ft el into the Account all Grant Funds then due from such party. Additionally, any Funding Party may elect to fully fiord its Mire share of the Grant Funds (`Advance F"d") by escrowing said Rinds into the Account by providing the Parties written notice of its election to do so. In such event, the Escrow Agreement shall be revised to aceormmodate the deposit of the additional funds, preserving all interest acme ing on said additional fonds to the benefit of such Funding Party until such funds are required for replenishment ha=der. In the event a Funding Party elects to Advance Fund its share of the Grant Funds, the Funding Party may withdraw such funds at any time prior to the requirement fox the funds for replenishment hereunder and the Escrow Agreement shall so provide. If the Development Obligations Agreement entered into concurrently herewith is terminated, any other Development Obligation Agreement entered into by Burnham with any other Project Manager that is not in the same form as attached hereto as Exhibit "I" shall be subject to review and approval by the Funding Parties, not to be unreasonably withheld or delayed. C. Completion of Permanent Facilities. Burnham shall work diligently with its Project Manager to achieve completion of the Permanent Facilities and to obtain a Certificate of Occupancy for the Permanent Facilities on or before the Permanent Facilities Completion Date. D. Biomedical Research Institution and Campus. Subject to performance (other than by Burnham) -of the OTTED Agreement, Burnham shall operate and maintain, from the date of occupancy of the Permanent Facilities and thereafter throughout the Term of this Agreement and the (around Lease, a scientific research institution within the Permanent Facilities in accordance with the terms of this Agreement. 21. —� ORLIMALESMUM 3JnZV= OW dr ?!14 MY 8M AN • r r E. Burnham's Job Creation Obligations. Subject to performance (other than by Burnham) of the OTTED Agreement, during the Tern of this Agreement, Burnham shall use reasonable best efforts to establish and maintain 303 Jobs in accordance with the schedule depicted in the Business Plan, with a moving two -year average of the wages for all such Jobs created by Burnham equal to at least the Agreed Average Wage, The Business Plan may be amended from time to time by Burnham, provided, however, that there shall be no change or modification to the number of Jobs or, for any Report Period during the Measurement Period, the timing of Jobs to.be established by Burnham or the Agreed Average Wage without all Funding Patties' advance written approval, not to be unreasonably withheld or delayed. Notwithstanding anything herein, by the end of the term of the Ground Lease, Bonham must have achieved the Jobs Commitment in accordance with the Ground Lease. F. Facilitation of Funding Parties, Goals. Burnham shall work collaboratively with the Funding Patties on economic development issues by complying with the reasonable requests for Burnham's cooperation in fostering economic Aevelopment in the biomedical and biotechnology industry in Orango County. Burnham has designated Burnham's Chief Executive Officer and Chief Operating Officer (and may add • to or replace such persons, by providing written notice, with Burnham's Vice President, Business Development and/or Vice President, Operations of Florida (or equivalent officer position), if and when appointed) who shall be charged with assisting the Funding Parties in these collaborative efforts, which person may be changed by Burnham from time to time, as necessary, by providing advance written notice to the Funding Parties. G. Financial Information. Burnham shall furnish the following reports to the Funding Parties: 1. As soon as possible after the end of each fiscal year of Burnham, and in any evert within one hundred twenty (120) days thereafter, an audited consolidated balance sheet of Burnham as at the and of such fiscal year, and audited consolidated statements of activities and cash flows of Burnham for such year prepared in accordance'with GAAP and setting forth in each case in comparative form the figures for the previous year, all in reasonable detail and accompanied by an independent auditors' report from independent public accountants of recognized national standing selected by Burnham. The audit shall be conducted in accordance with Government Auditing Standards, or Generally Accepted Auditing Standards, as applicable at the time of such audit. In addition, the schedules to the audited financial statements shall (i) to the extent applicable to Burnham's Florida operations, include such additional schedules as arc required to comply with Florida's Single Audit Act and (ii) include .additional schedules that set forth the assets and liabilities, and revenue and expenses of Burnham's Florida operations separately from those of the rest of Burnham. 2. As soon as possible after the end of each fiscal quarter of Burnham, and in any event within forty-five (45) days thereafter, an unaudited consolidated balance sheet of Burnham and any of its affiliates, as of the end of each such period, and unaudited consolidated statements of activities and cash flows of Burnham and any of its affiliates for the current fiscal year to date, prepared in accordance with GAAP and setting forth in comparative form the figures for the corresponding periods of the previous fiscal year, subject to changes resulting from normal year -end audit adjustments, all in reasonable detail and certified by the principal 22. ORLIIRENF8T108047b,b 81?ftffi Y8 DW dy 7l rMU 8:2 AM T rd financial officer or accounting officer of Burnham, except that such financial statements need not contain the notes required by GAAP. To the extent that Burnham already prepares similar information for other purposes, the Funding Parties shall accept such similar information in substitution for that required herein. 3. Within ten (10) days after approval by the Board of Trustees of Burnham of the full budget of Burnham, the portion of such full budget comprising the annual budget for Burnham's Florida operations. 4. Such internal information regarding Burnham's Florida operations as the Funding Parties may reasonablyrequest to confirm Burnham's compliance with the terms of this Agreement. With respect to the information required by this Part VI.G., Burnham may, where feasible, comply with one or more of these reporting standards by submitting to the Funding Parties copies of information submitted by Burnham to the federal goveatmneit or to other organizations awarding research grants to Bumham, if such information satisfies. the reporting standards of this Part VI.G. H. Operations Report. Burnham shall prepare a report describing Buruham's Florida operations for each Report Period (the "Operations Report'j and deliver such Operations Report to the Funding Parties not later than ninety (90) days after the end of the Report Period to which such Operations Report pertains. The Operations Report shall include, but not be limited to, the following information: 1, ati accounting of financial commitments made by Burnham for Burnbiam's Florida operations during the Report Period; 2. data regarding the activities and performance of Burnham during such Report Period and detailing the progress of Burnham in meeting its Business Plan, including but not limited to: a. information on the number and salary level of Jobs created by Burnham within Burnham's Florida operations; b. a description of the status of the performance expectations set forth in Part VI.J. of this Agreement; c. information on the positions and funds required to be committed for equipment for such positions by means of the next annual disbursement of funds under the OTTED Agreement; d. commencing with the Operations Report for the Report Period ended June 30, 2008, a description of the status of Burnham's relocation from the Temporary Facilities to the Permanent Facilities and the progress of construction activities, as described 'in the Business Plan; and 23. ORL11REMY_9'i1666676.6 i 31707/00¢6 MJ dQ 2!2212007 0.32 AM \� IRTIO, e, commencing with the Operations Report for the Report Period during which Burnham commences activities at its Permanent Facilities, a description of the status of Burnhaes activities in its Permanent Facilities, including its graduate programs; and 3.. Such internal information regarding Burnham's Florida operations as the Funding Parties may reasonably request to confirm Burnham's compliance with the terms of this Agreement. With respect to the information requires by this Part VI.H., Burnham may, where feasible, comply with one or more of those reporting standards by submitting to the Funding Parties copies of information submitted by Burnham to the federal government, OT TED or other organizations awarding research. grants to Burnham, if such information satisfies the reporting standards of this Part VI.H. 1. Science Report. Burnham shall prepare the report that describes the scientific activities for Burnham each year ( the "Science Report") and deliver the Science Report to the Funding Parties within one hundred twenty (120) days after the and of each fiscal year of Burnham:. The form of the annual Science Report will be substantially similar to the form Burnham uses at such time with respect to its California operations. A copy of the annual science report Burnham currently uses with respect to its California operations has been provided to the Funding Parties. I Performance Expectations. Burnham shall report to the Funding Parties not less than annually on its progress in meeting certain performance expectations under the O= Agreement. These reports shall include, but are not limited to, performance expectations addressing the following with respeCt to Burnham's Florida operations: 1. the number and dollar value of research grants obtained by Burnham with respect to Burnham's Florida operations from the federal government or sources other than Florida; 2. the percentage of total research dollars received by Burnham from sources other than Florida, which is used to conduct research activities by Burnham in Florida; 3. the number or value of patents obtained by Burnham with respect to Bu mham's•Florida operations; 4. the number or value of licensing agreements executed by Burnham with respect to Burnham's Florida operations; 5. the extent to which research conducted by Burnham's Florida operations results in commercial applications; 6. the number of collaborative agreements reached and maintained by Burnham with colleges and universities in Florida and with research institutions in Florida; 7. the number of collaborative partnerships established and maintained by Burnham with businesses in Florida, including small businesses; 24. OFILIMALES 5647 s 317C7 M DFU (" ZWnm7 8:32 AM 98,'a y 8. the total amount of funding received by Burnham with' respect to Burnham's Florida operations from sources other than OTTED and the Funding Parties, including a breakdown of amounts received from grants and from other sources; 9. the number of spin -off businesses created in Florida as a result of commercialization of the research of Burnham's Florida operations; 10. the establishment and implementation of policies to promote supplier diversity using the guidelines developed by .the Office of Supplier Diversity under Section 287.09451, Florida Statutes, and to comply with the ordinances, including any small - business ordinances, enacted by applicable local governments and which are applicable to Burnham; 11. the designation by Burnham of a representative to coordinate with the Office of Supplier Diversity; 12, the establi ent and implementation f a t workforce shin map eme�ntatton o program o conduct w rkfo recruitment activities at public and private colleges and universities and community colleges in Florida, regardless of their size, which request the participation of Bumham; 13. the designation of a senior -level ,point of contact for economic development activities related to Burnham's Florida operations; and 14. the number of scientific publications generated from research conducted by Burnham's Florida operations. K. Job Advertising. Burnham agrees to advertise all Burnham's Florida job openings �J to provide notice to Orange County residents cone wing the availability of such jobs, by doing the following. (1) posting the job availability on its website; and (2) providing EDC with a copy of the position specifications to EDC for posting on the internet -based job - listing system of the Agency for Workforce Innovation, or if such system is discontinued, such other internet -based system as County and/or City may reasonably specify. L. Transportation to and from Job Location. With respect to job openings at the Permanent Facilities, Burnham shall provide the following information on its website to assist individuals in Orange County who are or may be hired: 1. The bus stop closest to the Permanent Facilities; and 2. Directions to the Permanent Facilities from I-4, S.R. 528, and S.R. 417. M. Reporting. In addition to the reports under Part VI.G., H. and 1. above (the "Burnham Reports'), Burnham will comply with reasonable requests for information from the Metro Orlando Economic Development Corporation for its preparation of a report evaluating the impact of Burnham's operations on the economy of Orlando. N. Audits. 25. or:< »7" 81784/M OHJ dij? ZWMT s= AM I6 9B 1. compliance Audit. Burnham will provide to the Funding Parties all information resulting from any compliance audit conducted by OTTED under -the OTTED Agreement to review the activities of Burnham's Florida operations to assess Bumham's operational compliance with the terms of the OTTER Agreement. If (i) OTTED does not conduct a compliance audit under the OTTED Agreement for a given fiscal year of Burnham, or (ii) any Funding Party wishes to independently conduct a.compliance audit for a given fiscal year of Burnham (provided that the Funding Parties shall coordinate such that there shall be no more than one such audit per year), the Funding Party(ies) may engage an auditor to conduct a compliance audit to assess Burohara's operational compliance with the Jobs, Agreed Average Wage and disclosure of status of performance expectations under Part VI.J. of this Agreement and to audit the activities of Burnham's Florida operations to assess its financial compliance with the terms of this Agreement; Burnham shall cooperate fully with such audit. As part of the audit, Burnham shall make available such information as may be necessary to determine compliance with the terms of this Agreement, including, without limitation, records regarding payroll, Hours worked, rates paid, information substantiating the performance of the Jobs 'at the Burnham Campus. The Funding. Parties shall each pay an equal share of the cost of such third party auditor. Any such audits shall, occur on an annual basis in conjunction with Burnham's audit of its financial statements for its fiscal year ending June 30. in such event, the Funding Parties shall retain an independent certified public accounting firm licensed in Florida to conduct such annual compliance audits of Burnham's Florida operations in accordance with Govermmiemt Auditing Standards after the close of Burnham's fiscal year. The Funding Parties' rights under this Part VI.N. shall continue in effect for so long as Burnham has the right to exercise the Option in accordance with the terms of the Ground Lease and during any period following Burnllam's exercise of the Option that an audit right may be exercised under the terms of the Ground Lease. For seven years after. submission -of .the _OR�ons Report for a given Report Period (or such other period as provided by federal law), Burnham (i) shall retain all records regarding information supporting the Operations Report received for such Report Period, and (ii) shall ensure the retention of its independent auditors' working papers for such Report Period. If any litigation, claim, negotiation, audit, or other action involving records has been started before the expiration of the seven -year period (or such other period as provided by federal law), the records shall be retained until completion of the action and resolution of all issues arising therefrom, or until the end of the seven -year period (or such other period as provided by federal law), whichever is later. 2. Coagniggo Audit. Each of the Funding Parties shall have access to the Work and the right to audit all of Buxnham's and the Project Manager's books, ledgers, records, correspondence, instructions, drawings, receipts, vouchers, memoranda, and other documents pertinent to all Project Costs, Change Orders, Change Directive (as defined in the DeVelopment Obligation Agreement); or otherwise relating to the Work, and Burnham shall require the Project Manager under the Development Obligation Agreement to preserve and make available at Project Manager's office at all reasonable times all such records for a period of three (3) years after Final Payment. In the event of termination, the records relating to the Work, or part thereof, affected by such termination shall -be made available for three (3) years after the termination. Records pertaining to claims, to litigation or the settlement of claims arising under or relating to the performance of the. Work small be made available until. disposition of such appeals, litigation, or claims. Burnham shall .require the Project Manager under the Development Obligation Agreement to insert a provision containing all the requirements of the foregoing, in 26. OF47MALES'f{88e4M 3JT4ZMW DW dN V2VMT 8:2 AM 90 all Contracts between Project Manager and Contractors, and in all Contracts between Prime 1. Contractor and any Subcontractors exceeding $200,000.00, altering the paragraph only as necessary to identify properly the contracting parties. O. Burnham to Use Reasonable Best Efforts. Burnham shall use its reasonable best efforts to operate in accordance with the terms of this Agreement, and shall operate in accordance in all material respects with all applicable laws and all applicable National Institute of Health policies and mandates. Burnham shall also implement and maintain appropriate internal controls and compliance procedures. P. Burnham Covenants 'to Perform under Other Agreements. Burnham shall enter into and timely perform each of its obligations under the Ground Lease, the Gift Agmement (Surplus Property), The Escrow Agreement, the Development Obligation Agreement and the lease for the Temporary Facilities, and such other agreements as may be contemplated therein, as and when required in accordance with and subject to the tongs of each such agreement. PART VII EXCLUSIVE FACILITY; OUTSIDE ACl<'TVITIES A. Limitation on Additional Research Facilities. Commencing on the Effective Date, Burnham's Primary Operations in the State of Florida shall be at the Temporary Facilities or at the Burnham Campus. Commencing on the Effective Date and until twenty (20) years after the Effective Date, Burnham shall not establish, maintain or operate, or commit to establish, maintain, or operate, by itself or in concert with other entities, any other biomedical science or research facilities in any state in the United States other than- the- State of Florida or California _ (which includes Burnham's participation in the San Diego consortium for regenerative medicine in the State of California); provided however, nothing contained in this Agreement or any other agreement among the Parties shall prohibit: (a) Burnham from establishing or engaging in normal collaborative activities with other organizations, or (b) one or more of Burnham's scientists from performing normal of -site research associated with projects primarily being conducted at either the Temporary Facilities, the Burnham Campus or the Burnham research facilities in California. B. Certain Acknowledgments. Burnham acknowledges that the Funding Parties are entering into this Agreement, in large part, to benefit from the goodwill and competitive ability of Burnham, and that the Funding Parties have a valid and legitimate interest in pmtec us such goodwill by restraining Bummham's ability to compete with the operations it establishes at the Burnham Campus and thereby dilute the value of its Burnham Campus operations as provided in this Part VII. The limitations concerning time, territory, nature and character' imposed by this Agreement upon Bumham's ability to open another research facility are reasonable and fair, and Will not prevent Burnham from conducting either its California or Florida operations. Burnham further acknowledges that any violation of any term or provision of this Part will have a substantial detrimental effect on the Funding Parties. Burnham has carefully considered the .nature and extent of the restrictions. placed upon it and the rights and remedies conferred upon the Funding Parties under the provisions of this Agreement and believes that the same are, reasonable in tinge, scope and territory. 27. 0M1VM ESTW"7&G 87701V="c j vnrM 5:32 AM • r r C. Modification of Covenant. The Funding Parties and Burnham recognize that the laws and public policies of the State of Florida and other applicable jurisdictions and their interpretation may be uncertain as to the scope, validity and enforceability of certain of the provisions contained in this Part. It is the intention of the Funding Parties and Burnham that the provisions of this Part shall be. enforced to the fullest extent permissible, and that the unenforceability (or the modification to conform with such laws or public policies) of any provision hereof shall not render unenforceable or impair the remainder of this Part. Accordingly, if any provision of this Part is invalid or unenforceable, either in whole or in part, this Part shall be deemed to delete or modify, as necessary, the offending provision and to alter the balance of this Part in order to render the some valid and enforceable to the fullest extent permissible as' aforesaid. In the event that the provisions of this Part are found to exceed the period of time or scope which courts of.eompetent jurisdiction can or will enforce, said period of time and scope shall, for purposes of this Part, consist of the maximum area or period of time or scope which courts of competent jurisdiction can and will enforce. Burnham acknowledges and agrees that but for the agreement of Burnham to comply with the covenants contained in this Part, the Funding Patties would not have agreed to enter into this Agreement with Burnham. PART VM GENERAL CONDYTIONS A. Contingent Fees. Burnham warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Burnham to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for Burnham, any fee, couunission, percentage, gift, or any other consideration contingent upon or resulting from the award or making. of this Agreement. The Funding Parties acknowledge that this provision does not restrict the right of Burnham to engage any Person paid on an hourly and non- contingent basis to negotiate the terms and conditions of this.Agreement, B. Civil Rights Compliance and Opportunities for Residents. 1. Discrimination, Burnham shall develop and implement hiring policies for Burnharn consistent with the requirements of applicable Iaw, providing that no person shall be unlawfully discriminated against, or be subjected to discrimination under, any activity carried out by the performance of this Agreement 2. Low - income and Orange County Residents. Burnham agrees to develop and implement hiring policies that will provide Orange County residents (including low- income residents) opportunities for training and employment at Burnham, subject to experience and educational requirements. 3. Local Businesses. Burnham shall use reasonable best efforts to give businesses located in, or owned in substantial part by persons residing in, Orange County preference in the award of contracts in connection with the design and construction of the Permanent Facilities, subject to duality and price considerations. ORMWALESTM SM 28. 9176210728 DHJ d" 2tl2*= 892 AM C. MBE/WBE Project Goal. Burnham shall ensure compliance with Articles II and Iii of Chapter 57 of the Orlando City Code (the 'WE/WBE Project Goal'l relating to the participation of City - certified minority business enterprises ( "MBEs") and women business enterprises ("WBEst') in the construction of the Permanent Facilities. The Funding Parties acknowledge that, under the Development Obligation Agreement, Burnham will delegate this obligation to the Project Manager. The Project Manager, the Prime Contractor or Burnham shall submit quarterly reports in a format acceptable to City and County, documenting MBEIWBE I firms used, their scopes of work, dollar value of contracts, work performed to dater and dollar i amounts paid to date. The initial quarterly report shall be submitted to the City's MBE Director prior to the issuance of a building permit for the Permanent Facilities. At City's sole risk and expense, a City MBVWBE Compliance OffiIcer may visit the job site and may interview firms i and employees in order to observe and document participation by MBEME firms and minority and women employees. ! D. Insr�. Burnham, at its sole expense, shall maintain in full force and effect at all times during the Term of this Agreement insurance coverages and limits (including endorsements), as described herein. The requirements contained herein, as well as the Funding Parties review or acceptance of insurance maintained by Burnham are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Burnham under this Agreement. 1. Commercial General Liability. Burnham shall maintain Commercial General Liability insuring against personal injury and property damage at the Permanent Facilities and the Temporary Facilities at a limit of liability of not less than One Million Dollars ($1,000,000) Each Occurrence. and Fourteen Million Dollars ($14,000,000), Annual Aggmgate. These limits-may be satisfied by the additional limits afforded under excess or umbrella liability coverage. Coverage shall not contain any endorsement excluding Contractual Liability or Cross Liability unless agreed to in writing by the Funding Parties' respective Risk Management departments or personnel. Burnham shall provide this coverage on a primary basis. 2. Business Automobile Liability. Burnham shall maintain Business Automobile Liability at a limit of liability not less than One Million Dollars ($1,000,000) Each Occurrence for all owned, non -owned and fired automobiles. In the event Burnham does not own any automobiles, the Business Auto Liability requirement shall be amended allowing Burnham to maintain only lured & Non -Owned Auto Liability. This amended requirement may be satisfied by way of endorsement to the Commercial General Liability, or separate Business Auto coverage form. Burnham shall provide this coverage on a primary basis. 3. Worker's Compensation Insurance & Employers Liability. Burnham shall maintain Worker's Compensation in accordance with Florida Statute Chapter 440 and Employer's Liability with limits of not less than $1,000,000 per occuaxence. Burnham shall provide this coverage on a primary basis. 4. Additional Insured. Burnham shall endorse each of the Funding Parties as . Additional Insureds with an Additional Insured - Designated Person or Organization endorsement, or its equivalent, to the Commercial General Liability. Burnham shall provide the Additional Insured endorsements coverage on a primary basis. 29. DR1.I AWI MM73.5 9 8. 5. Waiver of Subrogation. Burnham agrees by entering into this Agreement to a Waiver of Subrogation for each required policy. When required by the insurer, or should a policy condition not permit an insured to enter into a pro-loss agreement to waive subrogation without an endorsement, then Burnham shall notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy, when a condition to the policy specifically prohibits such an endorsements, or voids coverage should Burnham enter into such an agreement on a pro-loss basis. 6. Certificate(s) of Insurance. Burnham shall deliver to the Funding Parties a Certificate(s) of Insurance evidencing that all types and amounts of insurance coverages required by this Agreement have been obtained and are in full force and effect Such Certificate(s) of Insurance shall include a minimum- thirty (3 0) day (ten (10) day for non-payment of premium) obligation to notify due to cancellation or non-renewal of coverage. 7. Right to Review. The Funding Parties, by and through their respective Risk Management departments or representatives, reserve the right to review required policies of insurance, including coverages, or endorsements, from time to time throughout the Team to confirm compliance with the requirements of this Agreement. In such event, the Funding Parties shall provide Burnham written notice of the request for review and Burnham shall provide the Funding Parties with copies of required insurance policies within thirty (30) days of receipt thereof. 8. Adjustments. a. Every five (5) years, the Parties shall, in good faith, negotiate whether there should be increases (and, if so, the amount thereof) in the amounts of liability insurance required hereunder. If the Parties are unable to agree, the matter shall be resolved by binding mediation. The mediation shall be heard by one (1) mediator selected by mutual agreement of the Funding Parties and Burnham. If the Parties cannot agree on a mediator, then either party may seek to have the mediator selected by the American Arbitration Association and the decision of the American Arbitration Association as to the appointment of the mediator shall be binding on all Parties. The site of the mediation, unless the Parties agree otherwise, shall be in Orange County, Florida. b. The Funding parties agree to negotiate with Burnham in good faith as to reductions in the amounts and types of coverages set forth in this Part VIII in the event such amounts and/or coverages become unavailable or available only at rates which are not commercially reasonable. 9. Blanket Insurance. Any insurance required to be provided by Burnham pursuant to this Agreement may be provided by blanket insurance covering the Burnham Campus and. other locations of Burnham,- or by an Owner Controlled Insurance Program ( "OCTP" j provided that such blanket insurance complies with all of the other requirements of this Agreement with respect to the insurance involved. Any blanket or OCIP insurance programs shall be subject to advance review and reasonable approval by the Funding Parties. 30. 0RUMALEB'n W75.8 37762 0028 MU dN 24=007 932 AM 9 Eli 10. Property Insurance. Burnham, as a cost of the construction process, shall cause property insurance (Builder's Risk. Insurance) to be in Ul force and effect during construction of the Temporary Facilities and Permanent Facilities. E. . indemnification. 1. Indemnification of Funding Parties. Burnham shall indemnify, defend and hold the Funding Parties, their agents, employees, officers and appointed and cleated officials (individually, "Funding Party Indemnitee'; collectively "Funding Party IndemniteW ) harmless from and against any and all third party claim or causes of action, and liabilities, expenses, losses, costs, damages, fines and penalties of every kind and character or incurred or suffered by a Funding Party Indemnitee as a result thereof; arising out of or resulting from (i) the design or construction of the Temporary Facilities or Permanent Facilities or any other improvements on the Burnham Campus, provided such claim, damage, loss or wgmse is attributable to bodily injury, sieimess, disease or death, or injury to or destruction of tangible property (other than to the Work itself); or (ii) the use, operation, or occupancy by Burnham or its sublessees of the Temporary Facilities or Permanent Facilities or any other improvements on or within the Burnham Campus. 2. Procedure for Defense of Claims by Third Parties. If any proceeding referred to in this Part VIII.E. is brought against a Funding Party Indemnitee, the Funding Party Indemnitee shall give notice to Burnham of flee commencement of such proceeding and Burnham will. be entitled to participate in such proceeding and to assume the defense of such proceeding with counsel reasonably satisfactory to the Funding Party Indemnitee (if Burnham is also a party - to such proceeding and the Funding Party Indemnitee determines in good faith that joint representation would be inappropriate, the Funding Party_ Indemnitee shall be entitled to retain independent counsel). If. Burnham assumes -the defense of a proceeding: (i) it will be conclusively established for purposes of this Agreement that the claims made in that proceeding are within the scope of and subject to indemnification; (ii) Burnham shall have the exclusive right to defend, compromise, or settle such proceeding provided that, without the prior written consent of the Funding Party Indemnitee, Burnham shall not agree to any settlement that does not include a complete release of the Funding Party Indemnitee from all liability with respect thereto or that imposes any liability, obligation or restriction on such Funding Party Indemnitee; and (iii) Burnham shall pay all costs and expenses associated therewith, including attorney's fees and costs. The Funding Party Indemnitee shall reasonably cooperate with Burnham in connection with any action or proceeding in respect of which Burnham is indemnifying the Funding Party Indemnitees pursuant to this Agreement. 3. Exclusion. Burnham acknowledges - the broad nature of the indemnification clauses provided for in this Part VIII.E. and further acknowledges that each Funding Party would not have entered into this Agreement without the inclusion of such clauses, and voluntarily makes this covenant and expressly acknowledges the receipt of good and valuable consideration provided by each other party in support of such indemnification clauses in accordance with the laws of the State of Florida. Notwithstanding any other provision to the contrary, the Parties acknowledge and agree that the provisions of this Part VIII.E. shall not be construed as obligating Burnham to protect, reimburse, indemnify or hold the Funding Party Indemnitee(s) harmless from or against any claim, cause of action, liabilities, expenses, losses, 31. ORLflREALE5TMWS.6 617WOM DW c" ZJ22=7 622 AM r• ; costs, damages, fines or penalties arising from any act or omission of any Funding Party Indemnitee(s) or resulting from the broach by any Funding Party Indemnitee(s) of any acknowledgment, representation, warranty or covenant of this Agreement or any other agreement among the Parties; provided however that City's and County's limits of liability are set forth in Section 768.28, Florida Statutes, and nothing herein shall be construed to extend the liabilities of City and County, nor to serve as a waiver of City's or County's sovereign immunity. 4. Survival. The obligations arising under this Part VIII.E. shall survive the expiration or termination of this Agreement, as to claims or causes of action, and liabilities, expenses, losses, costs, damages, fines and penalties of every kind and character or incurred or suffered by a Funding Party Indemnitee as a result thereof, based upon events arising prior to the date of termination of this Agreement. F. Disclaimer. Except as expressly set forth herein, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY MIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES, • IN ALL CASES WITH RESPECT THERETO. Without limiting the generality of the foregoing, each party expressly does not warrant the success of any activities conducted pursuant to this Agreement. G. Limitation of Liability. NO PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY RIGHTS GRANTED HEREUNDER; provided that this shall not limit the obligations (i) to provide Grant Funds and to donate the Burnham Campus in accordance with Part V so long as there is no default by Burnham unit •this_Agreemcat, or (ii) to provide indemnification under Part VIII.E. So long as Burnham's obligations under the Bond Documents remain outstanding, the Funding Parties agree that they shall not seek to recover any award or enforce any judgment against any assets of Burnham that are pledged as security for such obligations under the Bond Documents. So long as Burnham's obligations under the OTl'ED Agreement remain outstanding, the Funding Parties agree that they shall not seek to recover any award or enforce any judgment against any assets of Burnham that are pledged as security for such obligations under the OTTED Agreement. H. Title to Permanent Facilities. Title to all portions of the Permanent Facilities shall automatically vest in Burnham. Upon termination of this Agreement under Part D LB.2. or Part DX.B.3., at the election of the Funding Parties, Burnham shall convey to the Funding Parties or their designee the Permanent Facilities "as is" without warranty or representation of any kind whatsoever, except that Burnham shall represent and warrant that it has the right to convey title of the Permanent Facilities to the Funding Parties or their designee free of all liens, restrictions, leases and encumbrances, except for the Permitted Exceptions and subject to the terms of the Gift Agreement (Permanent Facilities) and the Ground Lease, as applicable; provided, however, that, if such representation and warranty is not , true as of the date of conveyance of the Permanent • Facilities, and the Funding .Parties elect to receive conveyance of the Permanent Facilities, Burnham will concurrently enter into any documents reasonably requested by the Funding Parties to facilitate putting the Permanent Facilities in .the requested condition in 32. 0RL1VWALE5r4M7U 9t 762A026 DNJ dij ?127/2007 6:92 AM • r accordance with such representation and warranty but shall have no other obligation. The terms of this Part VM.H. shall survive expiration or termination of this Agreement. I. Burnham's and Project Manager's Representatives under Development Obligation Agreement. Each of Burnham and the Project Manager shall designate a representative and alternate representative to represent and act for Burnham and the Project Manager, respectively, for the purposes of the planning, designing, permitting and construction of the Permanent Facilities under the Development Obligation Agreement. Burnham shall notify the Funding Parties in writing of the name, address and phone number of the representatives and alternate representatives of Burnham and the Project Manage. Burnham shall keep the Funding Parties informed of any subsequent changes to the foregoing. PART IX TERM, TERNIINATION, AND DEFAULT A. Term. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated under this Part M shall end on the expiration of the Tam under the around Lease, except that the reporting provisions of Part VI.G., H. and 1. and exclusivity provisions of Part VII shall end on the date that is twenty (20) years after the Effective Date and Part VI.N. shall end on the date specified therein (the "Term "). B. 1. This Agreement may be terminated by unanimous written consent of all Parties to this Agreement. 2. This Agreement may be terminated by the Funding Parties, upon written " notice to Burnham and the other Funding Parties, in the event that any of the events set forth in any of the following clauses occurs and is not cured as provided therein (but only to the extent that any such event is not caused by the breach of any obligation of any Funding Party under this Agreement or any other agreement contemplated hereunder between Burnham and any Funding Party, by the breach of any obligation of the Escrow Agent under the Escrow Agreement, or by the breach of the Project Manager under the Development Obligation Agreement so long as LNBC or an affiliated entity is the Project Manager), and termination of this Agreement and the effect of termination in Part D(_C. below and shall be the Funding Parties' sole and exclusive remedy therefor: a. Burnham has Ceased Operations at the Burnham Campus in Orlando, Florida, which situation has not been cured within forty -five (45) days of the Funding Parties' written notice to Burnham; or b. A Bond Default has occurred by Burnham, which has not been cured within forty-five (45) days of such Bond Default; provided that if Bumha oa. makes good faith efforts to curt such Bond Default during such forty-five (45) day period but is unable to cure such default during the forty-five (45) day period, such cure period shall be extended to no more than ninety (90) days, and Burnham shall keep the Funding Parties fully informed of its progress in curing such Bond Default; or 33. 0ALWALE8710B84 U 31MW= 0HJ dnj 2R1=7 SW AM 90 e. Burnham violates, or fails to abide by, the exclusivity provisions of Part vii of this Agreement, which violation or failure has not been cured within thirty (30) days of the Funding Parties' written notice to Burnham; or . d. Burnham makes any general assignment or general arrangement for the benefit of creditors; a petition is filed by Burnham or by any third party against Burnham to have Burnham adjudged bankrupt or a petition for reorganization or arrangement under any bankruptcy law (unless, in the case of a petition filed against Burnham, the same is dismissed within sixty (60) days); the. appointment of a trustee or receiver to take possession of substantially all of Burnham's assets where possession is not restored to Burnham within sixty (60) days; or the attachment, execution or other judicial seizure of substantially all of Burnham's assets located within Orange County where such seizure is not discharged within sixty (60) days; or e. Burnham adopts a plan or resolution for the liquidation or dissolution of Burnham or the sale of all or substantially all of the assets of Burnham, or there is a pending proceeding by Burnham or any third party for the liquidation or dissolution of Bumbam, unless such plan or resolution is withdrawn or 'such proceeding is discontinued or dismissed within sixty (60) days of the Funding Parties' written notice to Burnham. 3. This Agreement may be terminated by the Funding Parties, upon written notice to Bumbam and the other Funding Parties, in the event that any of the events set forth in any of the following clauses occurs and is not cured as provided therein (but only to the extent that any such event is not caused by the breach of any obligation of any Funding Party under this Agreement or any other agreement-contemplated hereunder between Burnham and any Funding Party, by the - breach of any obligation of the Escrow Agent under the Escrow Agreemnent, or by the breach of the Project Manager under the Development Obligation Agreement so long as LNBC or an affiliated entity is the Project Manager), and termination of this Agreement and the effect of termination in Part IX.C. below shall be the Funding Parties' sole and exclusive remedy therefor. a. Any of Burnham's representations and warranties in Part III.A.1., 2., 4., 10., 12., or 16. is untrue at any time during the Term, which situation has not been cured within forty-five (45) days of the Funding Parties' written notice to Burnham; or b. Any of the representations and warranties in Part III.A.3., 5., 6., 7., &, 9., or 11. is untrue at any time from the Effective Date through the date of Final Completion (the "Construction Period % which situation has not been cured within thirty (30) days of the Funding Parties' written notice to Burnham; Notwithstanding any other provision of this Agreement, during the cure periods in Part IX.B.3.a. and b., any party shall have the option to request a binding, third -party determination on the issue (and solely on the issue) of whether the applicable representation and warranty is untrue based upon whether the Material Adverse Effect standard, as defined in these agreements, has been reached (the "Determination ") (this provision shall apply only to those representations and warranties that are expressly predicated on Material Adverse Effect). The party requesting the Determination shall provide the other party notice of its intent to do so, o� AMALESneaW" 34. 31 7e2 =# I*U dN =2=18.32 AM • VALIJ which notice shall include a detailed statement of the requesting party's position regarding the dispute and the name. of an arbitrator who has agreed to serve (the "Request"). The party i receiving such notice shall respond with a detailed statement of its position and shall simultaneously provide notice of a second arbitrator who has agreed to serve within the time constraints described herein (the "Response,). The first and second arbitrators shall promptly name a third arbitrator to complete the three - member panel (each member of which shall be affiliated with the American Arbitration Association) that shall make the Determination (the " Panel'). In the interest of time, a party may seek a Determination during the applicable cure period, however, no cure period shall be terminated or made shorter as a result, and the parties, by mutual consent, may extend the cure period for up to an additional thirty (30) days. If a party seeks a Determination in accordance with this provision, termination of this Agreement pursuant to Part IX,B.3.a. or b., as applicable, will not occur unless and until a Determination is made by the Panel that the applicable representation and warranty is untrue because the Material Adverse Effect standard in such representation and warranty has been reached. The Determination shall be conclusive as to the matter(s) presented and decided Failure to timely respond to a Determination request or to timely name an arbitrator shall result in the waiver of the receiving party's participation in the Determination, and the requesting party may proceed to obtain a Determination solely by the arbitrator it has named, based upon the information provided. Each parry shall bear the cost of its respective arbitrator and the non-prevailing party shall bear the cost of the third arbitrator. During the Construction Period, the deadlines are: (1) the Response shall be given no later than ten (10) Business Days after receipt of the Request; (2) the third arbitrator WWI be engaged no later than five (5) Business Days after receipt of the Response; and (3) the Determination shall be delivered to-all parties in written farm no later than ten (10) Business �....f Days after the engagement of the third arbitrator. For all other periods, the deadlines are: M—ft Response shall be given no later than thirty (30) days after receipt of the Request, (2) the third arbitrator shall be engaged no later than twenty (20) days after receipt of the Response; and (3) the Determination shall be delivered to all parties in written form no later than ten (10) days altar the engagement of the third arbitrator. 4. This Agreement may be terminated by Burnham, upon written notice to the Funding Parties, as provided in Part DLD.2. below. 5. If the Gift Agreement (Permanent Facilities) is terminated prior to Closing (as such term is defined therein) or if the Gift Agreement (Surplus Land) is terminated prior to Closing (as such term is defined therein), then this Agreement shall concurrently terminate unless otherwise agreed in writing by Burnham and the Funding Parties, and termination of this Agreement shall concurrently cause the termination of the Ground Lease, the Escrow Agreement and the Development Obligation Agreement. 5. If the Ground Lease is terminated under its terms, then this Agreement shall concurrently terminate unless otherwise agreed in. writing by Burnham and the Funding Parties, and termination of this' Agreement shall concurrently cause the termination of the Escrow Agreement and the Development Obligation Agreement, if then in effect. 35. ORLIIREALESfl6"VU 31782!0028 MU"2J22f2007 6.32 AM • ! C. Ef eat of Termination. 1. Upon termination of this Agreement, all rights and obligations of the parties to this Agreement shall terminate except as set forth in this Part lXC. Expiration or termination of this Agreement shall not relieve the parties of any obligation accruing prior to such expiration or termination. Except as set forth below or elsewhere in this Agreement, the obligations and rights of the parties under the following provisions of this Agreement shall survive expiration or termination of this Agreement: Part N.E., Part VM.E., F. and G., and Part 1X.C. 2. Upon termination of this Agreement under Part 1X, the Funding Parties shall have no obligation to cause disbursement of Grant Funds and may, at their option, direct the Escrow Agent under the Escrow Agreement not to disburse further Grant Funds; provided that the Funding Parties shall cause disbursement of (and direct the Escrow Agent to disburse) Grant Funds for any outstanding Draw Requests submitted in accordance with Part V.A.3.b., c. or d., as applicable, so that the Project Manager, Design Professionals, Contractors, Consultants and Vendors are paid for work performed in accordance with the Development Obligation Agreement. Subject to the preceding sentence, any unused portion of the Grant Funds placed in the Account by the Funding Parties, including any investment earnings thereon, shall be released to the Funding Parties in proportion to their contributions thereto. Further, Burnham shall, at the Funding Parties' request, promptly repay to the Funding Parties, based on each Funding Parties' pro -rata share (based on respective contribution made), any portion of the Contribution, Guaranteed Difference and Giant Funds previously disbursed to Burnham pursuant to this Agreement that have not bow expended (or are recovered in any disputes with architects, engineers, contractors, insurers, sureties, or under other completion guarantees Burnham may obtain for the Work, rights to which potential recoveries .Burnham agrees to use commercially reasonable efforts to pursue or, at the request of the Funding Parties (or Finding Party), will assign to the requesting Funding Parties (or Funding Party)), but in any event subject to provision for reasonable demobilization costs with regard to the Permanent Facilities, as described in a plan prepared by Burnham (taking into account costs to transfer to the Funding Parties or their designee construction or occupancy of the Permanent Facilities in a manner intended to' preserve for the Funding Parties the Permanent Facilities), which plan shall be subject to approval of the Funding Parties, such approval not to be unreasonably withheld. 3. Upon termination of this Agreement under Part IX.B.2. or Part DLB.3., the provisions of Part VM.H. shall apply. D. M_gVdAl 1. In the event of a breach by Burnham of any material term of this Agreement to be observed or performed by Burnham, which shall include, without limitation, Burnham's failure to establish the Jobs in accordance with the schedule depicted in the Business Plan, with a moving two -year average of the wages for all such Jobs created by Burnham equal to at least the Agreed Average Wage (but only to the extent that any such event is not caused by the breach of any obligation-of any Funding Party under this Agreement or any other agreement contemplated hereunder between Burnham and any Finding Party, by the breach of any obligation of the -Escrow Agent under the Escrow Agreement, or by the breach of the Project o1a.�v�n�sl�eeea7ss 36. 8170MM8 DHJ dQ MVM07 8:32 AM 90 . Manager under the Development Obligation Agreement so long as I,NBC or an affiliated entity is the Project.Manager) .(a `Burnham Material Breach'j, the Funding Patties shall provide written notice to Burnham of such Burnham Material Breach. Burnham shall cure such Burnham Material Breach, or if such Burnham Material Breach is not capable of cure, Burnham shall promptly report to the Funding Parties regarding the circumstances that led to the Burnham Material Breach, the impact of the Burnham Material Breach on Burnham and how Burnham I intends to mitigate any anticipated or actual adverse impact. Such reports to the Funding Parties shall occur as promptly as possible, but in no event later than thirty (30) days, after notification to Burnham that a Burnham Material Breach has occurred, and shall continue until the Bumham Material Breach has been cured or until the Funding Parties are reasonably satisfied that any Burnham Material Breach that is not capable of being cued' cannot reasonably be expected to impede the ability of Burnham to continue to operate as contemplated by this Agreement. If Burnham and the Funding Parties are unable to resolve the Burnham Material Breach within one hundred twenty (120) days, either by its cure or by the Funding Parties' satisfaction that Burnham can continue to operate as contemplated by this Agreement, then any party may pursue appropriate equitable remedies for such Burnham Material Breach; provided that in no event shall this Agreement or any other agreement between or among the parties be terminated as a result of such Burnham Material Breach and in no event shall the Funding Parties be relieved of any of their obligations under this Agreement as a result of such Burnham Material Breach (but subject to the immediately following sentence). Nothing herein shall limit the right of the Funding Parties to terminate this Agreement as permitted under Part IX.B.2. and 3. of this Agreement. 2. In the event of a breach by any Funding Party of any of the provisions of _ Part_V,A.2., 3., 4., 6. or 7. of this Agreement to be observed or performed by any Funding Party (but only to the extent such breach is not caused by the breach of any obligation of Burnham under this Agreement or any other agreement between Burnham and such Funding Party) (a "Speelfic Breach'j, Burnham shall provide written notice to the Funding Parties of such Specific Breach. If the applicable Funding Party does not cure such Specific Breach (or any other Funding Party, at its option, but without obligation, does not sue such Specific Breach as permitted by Part V.9.b.) within five (5) Business Days of notice of such Specific Breach (twenty (20) Business Days of notice of any Specific Breach of Part V.A.6. or 7.), Burnham may (a) terminate this Agreement upon written notice to the Funding Parties, or (b) Burnham and/or each non - defaulting Funding Party may pursue appropriate equitable remedies for such Specific Breach Notwithstanding anything contained herein to the contrary, in the event the remedy of specific performance is not available to Burnham to require one or more of the Funding Parties to perform its funding obligations under Part V.A.3., 6. or 7. of this Agreement (collectively, the "F+l mding Obligations'), then and only in such event, shall Burnham be entitled to pursue an action at law against the applicable Funding Party(ies). limited solely to recovery of the unpaid amounts due from such party pursuant to its Funding Obligations in accordance with the requirements of Part V.A.3., 6. or 7., as applicable. In no event shall Burnham be entitled to pursue an action for damages against any Funding Party for sums in excess of that party's Funding Obligations; the Funding Parties' monetary liabilities shall in all instances be limited to the unpaid Funding Obligations hereunder, plus interest at the prevailing statutory rate. Burnham shall not be obligated to observe or perform any of its obligations under this Agreement or other agreement between Burnham and the Finding Parties until such Specific Breach is cured or appropriate remedies as provided herein for such Specific Breach are in effect. 37. j 0RL1VWALEST%M475.8 31702WN WJ dhj 2MZ2007 8'.32 AM ^� ■ 3. In the event of a breach by any Funding Party (other than a Specific Breach) of any material term of this Agreement to be observed or performed by any Funding Party (but only to the extent such breach is not caused by the breach of any obligation of Burnham under this Agreement or any other agreement between Burnham and such Funding Party) (a 'Irimding Party Material Breach!), Burnham WWI provide written notice to the breaching Funding Party, with a copy to the other Funding Parties, of such Funding Party Material Breach. The breaching Finding Party shall cure such Funding Party Material Breach, or if such Funding Party Material Breach is not capable of cure, the 'breaching Funding Party shall promptly report to Burnham and the other Funding Parties regarding the circumstances that led to the Funding Party Material Breach, the impact of the Funding Party Material Breach and how the breaching Funding Party intends to mitigate any anticipated or actual adverse impact. Such reports to Burnham and the other Funding Parties shall occur as promptly as possible, but in no event later than thirty {30) days, after notification to the breaching Funding Parry that a Funding Party Material Breach has occurred, and shall continue until the Funding Party Material Breach has been cured or until Burnham is reasonably satisfied that any Funding Party Material Breach that is not capable of being cured cannot reasonably be expected to impede the ability of Burnham and the. other Funding Parties to continue to operate as contemplated by this Agreement. If Burnham and the Funding Parties are unable to resolve the Funding Party MatmUl Breach within one hundred twenty (120) days, either by its cure or by Burnham's satisfaction that the breaching. Funding Party can continue to perform as contemplated by this Agreement, then any ply may Pie appropriate equitable remedies for such Funding Patty Material Breach, provided that in no event shall this Agreement or any other agme imt between or among the parties be terminated as a result of such Funding Party Material Breach and in no event shall Burnham or the Funding Parties be relieved of any of their obligations under this Agreement as a result of such Funding Party Material Breach. Nothing herein shall limit the right of Burnham to terminate this Agreement as permitted under Part DLBA. of this Agreement. E. Goveminrr LawNenue. This Agreement shall be governed by the laws of the State of Florida. Any legal action necessary to enforce the Agmement will be brought and maintained in a state court of competent jurisdiction located in Orange County. F. Exclusivity ­of Remedies. The remedies specifically enumerated m this Agreement are intended to be exclusive of any other remedy. In the event of a default described in Part TX.D.1., 2. or 3., the nondcfaulting party, unless another remedy is specifically enumerated in this Agreement, may elect, as its exclusive remedy to seek specific performance and related remedies and relief to the exclusion of all other remedies. In no event will Burnham's liability under this Agreement, excluding obligations under Part VIII.E. and any items or matters for which Burnham is required to obtain insurance under this Agreement, exceed the amount of any payments actually made to. Burnham by the applicable Funding Party as contemplated by this Agreemeant, less any amounts previously expended by Bumham from any- disbursements from the Grant Funds in good faith to design and construct the Temporary Facilities and the Permanent Facilities and, if applicable, the demobilization .costs under a plan approved by the Funding Parties pursuant to Part DCC.2. t3. Exercise of Remedies. Notwithstanding any other provision of this Agreement, termination by the Funding Parties under Part IX.B.2. or 3. and recourse to any remedies regarding a Burnham Material Default under this Part IX shall not occur without the consent of a 38. oRLiWEAL�8T1BA6� 6 8t7eP10028 DWW .4 anZ2007 6:82 Ar t • li ■ 1 ' combination of the Funding Parties that have contributed at least fifty -one percent (51%) of the aggregate •consideration provided by the Funding Parties to Burnham as reflected in the Funding Parties Agreement. PART X RECORDS A. Covenants Regarding Confidential and/or Proprietary Records of Buraharn. Subject to County's and City's compliance with Chapter 119, Florida Statutes, or other applicable law, regulation, or ordinance, the Funding Parties covenant and agree they shall at all tunes preserve and protect'the confidentiality of any Burnham documents or information deemed by Burnham to be confidential and/or proprietary and as to which Burnham has so notified the Funding Parties in writing; provided, however, that confidential and/or proprietary information shall not include information which: (i) is or becomes generally available to the public other than as a result of a disclosure by any of the Funding Parties or their respective representatives, (ii) was available to the Funding Parties on a non - confidential basis prior to its disclosure to the Funding Parties by Burnham or its agents, or (iii) becomes available to Funding Parties on a non- confidential basis fiom a source other than Branham or its 'agents, provided that such source is not bound by a confidentiality agreement with Burnham known-to the Funding Parties or their respective representatives. The Funding Parties acknowledge and agree that this Agreement does not grant or otherwise entitle the ending Parties to request or seek, and Burnham is under no obligation to deliver to the Funding Parties, any of Burnham's proprietary or confidential information. B. Upon ten (10) Business Days' notice and at any time during normal business hours and as often as the Funding Parties deem necessary, there shall be made available by Burnham to the Funding Parties for examination in Orange County all of Burnham's records with respect to the expenditure of funds provided under Part V of this Agreement. Burnham agrees to preserve all such records for a period of five (S) years (including five (5) years from the date of expiration of this Agreement) from the later of (i) the date such records were first produced; or (ii) the date that Burnham delivers any of the reports required hereunder to the Funding Parties, which is based, in whole or in part, upon such records. The Funding Parties reserve the right to require copies -of such records. The requirements of this paragraph shall survive termination of this Agreement until satisfied. PART XI SUCCESSORS AND ASSIGNS The Funding Parties and Burnham each bind themselves and their respective successors, executors, administrators and assigns to each other party and to the successors, executors, administrators and assigns.of such other party, in respect of all covenants of this Agreement. Neither the Funding Parties nor Burnham shall assign, convey or transfer their interests in this Agreement without the prior written consent of all other Parties, which consent may be granted or withheld in that party's sole discretion; provided, however, that Burnham may assign this Agreement to any successor-in-interest to all or substantially all of Burnham's assets (whether by merger,, consolidation, reorganization, sale of assets or similar transaction), provided that such successor assumes in writing all rights and obligations of Burnham under this Agreement and 39. ORL7M&E3T%W75.8 317&. WGU OW dq 2/22=7 8=AM f such successor is a 501(c)(3) not - for -profit entity. Any attempted assignment by one party in violation of this Part Xl shall be void without the prior written consent of the other Parties. Nothing herein shall be construed as creating any personal -liability on the part of any officer or agent of the Funding Parties or any trustee, officer or agent of Burnham, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the Funding parties and Burnham and permitted assigns (except as provided in Part VIME. with regard to indemnitees). PART 3M EXCUSABLE DELAYS No party shall be considered in default by reason of any failure in performance if such. failure arises out of a Force Majeure Event. Burnham shall not be considered in default by reason of any failure in performance if such failure arises out of any breach by OTTED, the University of Florida or the University of Central Florida of the terms of any of the agreements between Burnham and such party for support of Burnham's Florida operations, which is not due to a breach by Burnham. PART XIII COUNTY OR CITY CREDIT; POLICE POWERS Burnham shall not pledge any of the Funding Parties' credit nor make any of them a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. The Parties firdu r acknowledge and agree that this Agreement does not nor shall it be construed as a delegation of any of City's or County's govcrnmcatal authority or police powers to Burnham. PART XIV INDEPENDENT CONTRACTOR RELATIONSHIP; THIRD PARTIES A. Independent Contractor Relationship. Each party to this Agreement is, and shall be, in the performance of all work services and activities under this Agreement, an independent contractor, and not an employee, agent, or servant of any of the other Parties to this Agreement, individually or collectively. All persons engaged in any of the work or services performed by a party pursuant to this Agreement shall at all - times, and in all places, be subject to such party's sole direction, supervision, and control. Each party shall exercise control over the means and manner in which it and its contractors perform the work. No party to this Agreement has the power or authority to bind any other party to this Agreement in any promise, agreement or representation. B. Third Parties. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under, or by reason of, this Agreement. The Funding Parties agree and acknowledge that no provision of this Agreement provides Funding Parties with any right of enforcement with respect to, or any right to claim as a third Party beneficiary oi; any agreement to which such party is not a named party therein. PART XV SEVERABELITY 40. oRL11REALE8T1E�8475.8 • a ■ 0 If any term or provision of this Agreement, or the application thereof to any person or circumstances shall, to, any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provision, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. PART XVI NO FORFEITURE The rights of each of the Parties under this Agreement shall be cumulative and failure on the part of any such party to exercise promptly any rights given hereunder shall not operate to forfeit or waive any of the said rights. PART XV11 WAIVER No waiver of any provision of this Agreement shall be effective against any party hereto unless it is in writing and signed by the party(ies) waiving such provision. A written waiver shall only be effective as to the specific instance for which it is obtained and shall not be deemed a continuing or future waiver. PART XVM ENFORCEMENT COSTS In the event that any party finds it. necessary to employ an attorney to enforce any provision of this Agreement, the predominantly prevailing party will be entitled to recover from the other parties) its reasonable attorneys' fees and costs incurred in connection therewith (including costs of collection), at both trial and appellate levels; including bankruptcy proceedings, in addition to any other remedies to which such party may be entitled. The requirement to pay the predominantly prevailing party's reasonable attorneys' fees and costs will survive any termination of this Agreement. PART XIX AMENDMENTS Except as otherwise provided herein, no amendment to this Agreement shall be binding on another party unless in writing, and signed by each such party. PART XX CAPTIONS 'Me captions, sections and part designations herein set forth are for convenience only and shall have no substantive meaning. 41. ORLIWALEM$8476.e PART Ma NOTICE All notices and communications under this Agreement shall be in writing and shall be given by: (i) hand delivery; (ii) certified mail, return receipt requested (postage prepaid); (iii) reliable overnight commercial courier (charges prepaid); or (iv) facsimile (with confirmation of transmission) to each of the Parties as follows: if to County: Orange County., Florida P. O. Box 1393 Orlando, Florida 32802 -1393 Attention: Orange .County Administrator Facsimile: (407) 836 -7399 With a copy to: Orange County Attorney's Office 201 South Rosalind Avenue, 34 Floor Orlando, Florida 32801 Attention: County Attorney Facsimile: (407) 836 -5888 Ifto City: Chief Financial Officer City of Orlando, Florida 4a' Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile: (407) 2462707 With a copy to: Office of Legal Affairs City of Orlando, Florida 3rd Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Attention: Wesley C. Powell, Assistant City Attorney Facsimile (407) 246-2854 42. ORL1VEALEMM475.6 31762!0026 DFW OM ?/12/2007 822 AM ! if to LNLC. Lake Nona Land Company, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Facsimile: (407) 438 -0207 With a copy to: Tavistock Corporation 9350 Conroy. Windermere Road Windermere, Florida 34786 Attention: Rasesh Thakkar, Chief Executive Officer Facsimile: (407) 876 -0085 and Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Facsimile: (407) 650 -0920 If to Burnham: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Karin Eastham, Executive Vice President/COO Facsimile: (858) 645 -3184 With a copy to: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Vice President Business Development Facsimile: (858) 646 -3105 and Shutts & Bowen LLP 300 North Orange Avenue, Suite 1000 Orlando, Florida 32802 Attention: Michael Grindstaff Facsimile: (407) 425 -8316 43. MLISREALEST1e W7U 317WJO= DW 01 2=007 0= AM ■ and Cooley "ward Kronish LLP 4401 Eastgate Mall San Diego, CA 92121 Attention: L. Kay Chandler Facsimile: (858) 550 -6424 Notice shall be deemed to have been given and received: (i) if by hand delivery, upon delivery; (ii). if by mail, three (3) days after the date first deposited in the United States mad; (iii) if by overnight courier, on the date shown on the courier's receipt as the date of actual delivery; and (iv) if by facsimile, on the date shown on the confirmation of transmission. A party may change its address by giving written notice to the party as specified herein. PART XXII ENTIRETY OF CONTRACTUAL AGREEMENT The Parties agree that this Agreement sets forth the entire agreement.and understanding between the Parties with regard to the specific matters addressed herein and supersedes all prior negotiations, representations, understandings or agreements, whether oral or written, between the Parties or made by third Parties to either party, and there are no promises, covenants, agreements, representations, wwanties or understandings between the Parties other than those stated herein or in any of the other agreements contemplated hereby. None of the provisions, terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered except by written instrument executed by the Parties hereto. PART XXIII DELEGATION For County's part, County Administrator and his or her designee, and for City's part, City's Chief Admmistrafive Officer or his/her designee, shall have the right to execute and deliver on behalf of County and/or City respectively {in their capacities as Parties to this Agreement and not in their governmental functions) all consents and/or approvals hereunder and to review and approve on behalf of .County and/or City all plans and documents submitted pursuant to this Agreement. Notwithstanding the foregoing, County Administrator and/or City's Chief Administrative Officer may, in his or her reasonable discretion, elect to defer any such approvals to the Board of County Commissioners or City Council, respectively. In addition, County Administrator shall have the right to execute and deliver to Burnham on behalf of County the Ground Lease. PART XXIV NO FEES Except as otherwise expressly set forth in this Agreement, no fees or other charges of any kind or amount shall be required by any party hereto as a condition of the grant of any consent or approval which may be required under this Agreement (provided that the foregoing shall not be deemed in any way to limit County or City acting in its governmental; as distinct from its 44. ow.lw�uesneestn�.e ' 3178ZWM OW C" ?271200? 8:32 AM { capacity as a contract parry to this Agreement, from charging governmental fees on a nondiscriminatory basis). , PART XXV INCONSISTENCY In the event of an express inconsistency or conflict between the terms and provisions of this Agreement ( excluding the exhibits and addendum hereto) and the te= and provisions of any exhibit or addendum hereto, the terms -and provisions of this Agreement (excluding ' the exhibits and addendum hereto) shall control for all purposes. PART XXVI CONSENTS In the event this Agreement indicates that a party's ' consent shall not be unreasonably withheld or is silent in such regard, such consent shall not be unreasonably withheld, delayed or conditioned. In the event this Agreement indicates that a party's consent may be granted or withheld at such party's sole discretion, such consent may be granted or withheld at such party's sole and absolute discretion for any reason or no reason at all. PART XXVH CONTINUING COOPERATION; MODIFICATIONS The Parties agree that they will, at any time and from time to time after the date hereof; upon request of any other party, do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered, all such further documents and assurances as may reasonably be required for the assuring and confirming of the transaction contemplated herein, provided that the same do not impose any liability or additional costs on either party beyond that provided in this Agreement. Additionally, the Parties agree to cooperate fully and in a timely manner to assist in oorrecting errors and/or omissions which may be found in this Agreement or any agreement contemplated hereunder, including, without limitation, all exhibits or applications pertaining. thereto, when correction is deemed by all Parties to the applicable agreement to be reasonably necessary, to conform such documents to the agreed -upon terms of this transaction, as evidenced by the terms of-the various agreements between and among the Parties. The Parties agree, subject to the terms of this Agreement, to acknowledge by signature such corrections in, amend, or re- execute if necessary, such documents as same are brought before them. By approval of this Agreement', the Board of County Commissioners and the Orlando City Council hereby delegate, direct, and authorize each body's respective acting Mayor, in his sole discretion, with the advice of the County Attorney and City Attorney, respectively, to execute such further instruments, certificates and other documents as provided herein. PART XXVIII COUNTERPARTS This Agreement may be executed in any two or more counterparts, each of whicb, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. 45, ORLMEALE8T10 O8.8 3IM20M DW cd Z12=7 8:32 AM IN WITNESS WBXn0F, the Parties have caused these presents to be signed the day and year first written above. ORANGE COUNTY, FLORIDA By: Board of Coum Commissioners By: �= Richard T. Crot Orange County Mayor Date: V wn 6 koo? ATTEST: Mailhha O. Haynie, County Comptroller As Clwk�oard of County Commissioners r i> ATTEST: By: Aw • &*�- Alana C, renner, City Clerk APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, FLORIDA, ONLY: „ Cc" ,r , 2007 ity Attorney CITY OF ORLANDO, a municipal corporation organized and existing under the laws of the State of a, By: B y yer, Ma • i i 47. ORLIX reee+�ae a�roarooza oru 4 2MM7 OW AM Signed, sealed and delivered in the presence of the following witnesses: 48. ORL1IREALEST1686475.6 31762=28 DHJ dN 2/12/2D07 8:32 AM `°LNLC" LAKE NONA LAND COMPANY, LLC, a Florida limited liability company By: Name: Rasesh Thakkar Title: Vice President Executed on:— 2007 • p M Signed, sealed, and delivered BURNHAM INSTIME FOR in the presence of: MEDICAL RESEARCH, a California nonprofit public benefit corporation: imess Cpl . �cr►n tit,' S. i'Qbi V s Printed Name of Witness N:-J ' . R d, Z .D., Ph.D. Title: President & Chief Executive Officer Date:rJ, 7 witness Printed N e of Witness 49. ORL'IU'iE'ALEB?N66176.6 31762/0026 DW mJ 2222007 6:82 AM f LIST OF EXHMITS TO AGREEMENT * * * * * * * * * ** Schedule "1" Schedule of Definitions Exhibit "A" Disclosure Letter Exhibit `B" Burnham: Campus Exhibit "C" Permanent Facilities Site Exhibit "D" Gift Agreement (Surplus Land) * *wwws *w * * *w ** Exhibit "E" Gift Agreement (Permanent Facilities) Exhibit "F" Ground Lease * * * * * * * * * ** Exhibit "G" Funding Parties Agreement ww *ww * * * * ** Exhibit "H" Escrow Agreement 50. 31762) M MU c" 2/27!2W 8:32 AM 9B t� V 9B CITY OF ORLANDO City Clerk's 1 COUNCIL AGENDA Use only ITEM Items Types: For Meeting of: Signature Approval Consent Agenda 05/18/2009 Brooke Bonnett District: All From: Economic Development Budget Approval Mark M Medlar Exhibits: • Yes O No On File (City Clerk) : Draft Only: O Yes r No O Yes • No Grant Received by City ?: O Yes 0 No Subject: Approving Amendment No. 1 to the Burnham Institute for Medical Research Grant Agreement Summary: [Please, do not use all caps.] Burnham Institute for Medical Research ( "Burnham ") is a California - based, non- profit, medical research organization whose mission is to discover the fundamental causes of disease and facilitate the development of the therapies and cures. Founded in La Jolla, California, Burnham is a non - profit medical research institute focused on cancer research. Research at Burnham is organized into 3 disease - focused research centers: Cancer Research Center, Dale E. Webb Center for Neuroscience & Aging Research, and Infectious & Inflammatory Disease Center. Among the accomplishments to come from Burnham scientists for cancer are; (1) the laboratory technique known as the ELISA, which forms the basis for the PSA (Prostate Specific Antigen) test and many other clinical laboratory tests; (2) the enabling technology for the world's first biotech drug for cancer, EpogenTM, used to support blood cell production In patient undergoing cancer therapy; (3) one of the first vltamin -based drugs (TargretinTM) for cancer, that taps into natural biopathways for fighting cancer; and (4) the world's first DNA -based drug for cancer to successfully complete final Phase III clinical trials (decision on approval due this summer from FDA). In March 2007, the Orlando City Council approved multiple documents to support the establishment of Burnham's east coast headquarters to the City of Orlando at Lake Nona. The Burnham economic development project involved a unique partnership between the City of Orlando, Orange County, State of Florida, Lake Nona Land Company LLC ( "LNLC "), Florida's Blood Centers, Metro Orlando Economic Development Commission, the University of Central Florida, the University of Florida, Orlando Regional Healthcare Systems, Florida Hospital, Walt Disney World and Metro Orlando's philanthropic community. Burnham will be locating to their new facility at Lake Nona in May 2009. One of the City of Orlando and Orange County's financial obligations under the Burnham grant agreement (the primary funding agreement) is the "Philanthropy Drive Guarantee ". Burnham is in the midst of a philanthropy campaign drive to raise approximately $15 million. In 2007, Burnham had pledge commitments of approximately $5 million, leaving $10 million as the remaining goal to be raised over the ^lt next three years. Orange County and the City of Orlando agreed to equally cover any shortfall of the Meetin Cl 9B remaining goal up to $S million each, payable at the end of the campaign drive or In March 2010. Du current economic conditions, Bumham is extending their philanthropy campaign drive and extending Payment date of the City /Coup a to March 2014. ty philanthropy guarantee from three years to seven years or payable l the p y b!e In Amendment No. 1 to the Burnham Institute for Medical Research Grant Agreement effectuates change. ff ctuates this Fiscal fficlency Data: pp cumulative chOnge orders, recurring applicable, cite funds source; original approval date and contract amount, Documentary Number, data; etc.1 (e•g• operating and maintenance); allocation of any generated revenues; any applicable efficiency Recommended Action: Approval of Amendment No. 1 to the Burnham Institute for Medical Research Grant Agreement authorization for the Mayor and City Clerk to execute the Amendment No. 1 to the Grant Agreement subject to review by the City Attorney's Office, g ent and g meat Attachmants 1-9 Amend. No. 110 Burnham Grant Agrt.Clearr.doc Note; All agenda items must be In the City Clark's office by Noon Fr/da �., prior to the regular Monday City Council myelin . Y, $111(6) business days Distribution; g General: Byron Brooks /CAO /EXO /Orlando, Rebecca W Sutton /FIN /FIN /Orlando, Wesley PowelVLEG /EXO /Orlando, Rae Abiuso /LEG /EXO /Orlando, Kevin Edmonds /CAO /EDV /Orl Billingsley /EDV /EDV /Orlando, Raymond M Elwell /ACUFIN /Orlando, Tim M Dougher /BUS /ED Signature: ando, Frank V /Orlando Contact: Brooke BonnettBUS /EDV / Orlando Accented ems• "Enhance the quality of life In the City by delivedn g p financially resp ublic services in a knowledgeable, responsive and onsible manner." AVMNED BY ORANGE COUNTY'BOARD O.F. COUNTY COMMISSiONERS 9B MAY 19- 2009 j4j--fS AMENDMENT NO.1 TO GRANT AGREEMENT BY AND AMONG , ORANGE COUNTY, FLORIDA, CITY OF ORLANDO, FLORIDA, LAKE NONA LAND COMPANY, LLC AND BURNHAM INSTITUTE FOR MEDICAL RESEARCH THIS AMENDMENT NO. I TO GRANT AGREEMENT BY AND AMONG ORANGE COUNTY, FLORIDA, CITY OF ORLANDO, FLORIDA, LAKE NONA LAND COMPANY, LLC, AND BURNHAM INSTITUTE FOR MEDICAL RESEARCH (Amendment No. 1) is made and entered into this day of • J u_, 2009 ( "Effective Date'), by and among ORANGE COUNTY, a charter county and political subdivision of the State of Florida ( "County "), CITY OF ORLANDO, a municipal corporation organized and existing under the Laws of the State of FloridqL ( "City's, LAKE NONA LAND COMPANY, LLC, a Florida limited liability company ("LNLC'), and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit 501(C)(3) corporation ( "Burnham'). WHEREAS, the County, City, LNLC and Burnham previously entered into a Grant Agreement by and among Orange County, Florida, City of Orlando, Florida, Lake Nona Land Company, LLC, and Burnham Institute For Medical Research dated March 6, 2007 (the "Grant Agreement ") relating to the establishment and operation of the Burnham Campus in the City of Orlando, Orange County, Florida and the funding thereof; and _ WHEREAS, the parties to this Amendment No. 1 desire to amend Part V.A.7 of the Grant t� Agreement in order to modify the Philanthropy Drive Guarantee. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the County, City, LNLC, and Burnham hereby agree to amend the Grant Agreement as follows: 1. Recitals, The above recitals are true and correct and are incorporated into and made a part of this Amendment No. 1 as if fully set forth herein. 2. Part V A.7. Philanthropy Drive Guarantee. Part V.A.7 of the Grant Agreement is hereby amended to read as follows: 7. Philanthropy Drive Guarantee. The parties acknowledge that the Orlando - Orange County community is in the midst of a philanthropy drive, the total goal of which is to raise Fifteen Million Dollars ($15,000,000) to be contributed to Burnham. With approximately seven years remaining in the drive as of the Effective Date, approximately Five Million Dollars ($5,000,000) in private donations has been pledged by Persons in the Orlando- Orange County Community, leaving a remaining pledge goal from Persons in the Orlando -Orange County Community of Ten Million Dollars of cash (not in -kind) pledges (the "Remaining Goal "). County and City agree to co- guarantee equally any shortfall in the Remaining Goal by paying to Burnham no later than seven (7) years after the Effective Date (the "Philanthropy Payment Date ") any difference between the Remaining Got�al and the 04, un�if Meeting: ��� I Y, U 1 .. Documenta00_ 6 11C4 9B ag egate amount pledged to Burnham from the philanthropy drive as of the Philanthropy P ent Date (the "Guaranteed Difference'. When appropriate and reasonable, Burnham will assist in articulating its mission and vision to individuals or groups arranged by those local entities involved in the philanthropy drive. City and County shall each be liable for one - half of the Guaranteed Difference, however, neither City nor County shall be liable to each other or to Burnham for more than one -half of the Guaranteed Difference. This Agreement pr vides no restriction on the use of funds raised in the philanthropy drive from entities that ar not parties to this Agreement; however, Burnham shall account for the Guaranteed Difference under the audited financial statements for Burnham's Florida operations as provided in Article 7 of the OTTED Agreement, and shall use the Guaranteed Difference only in support of its Orlando operations, and to the extent feasible, shall expend the Guaranteed Difference locally. In the event this Agreement is terminated under Part IX.B.2. or Part DC.13.3., Burnham shall return to County and City all portions of the Guaranteed Difference that had not been expended by Burnham as of the date of termination based upon each such patty's pro rata contribution thereto. Burnham's completion and occupancy of the Permanent Facilities and Burnham's performance of all other material obligations then due under this Agreement are conditions precedent to City's and County's obligation to provide Burnham the Guaranteed Difference. 3.; Miscellaneous. All capitalized terms here shall have the meaning set forth in the Grant Agreemerft. This Amendment No. I to Grant Agreement shall be effective as of the date first written above. E cept as specifically amended herein, all terms, conditions, provisions, rights and obligationis contained in the Grant Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the County, City, LNLC and Burnham have executed this Amendment No. 1 to Grant Agreement as of the Effective Date first written above. ATTEST: Martha O. Haynie, County Comptroller As Clerk of the Board of County Commissioners By: ,� uty Cler A Date: JUN 0 4 2009 ORANGE COUNTY, FLORIDA By: Board of C ty Commissioners By: Richard T. Crotty Orange County Mayor Date: 5 •a 7 • , SIGNATURES CONTINUED ON FOLLOWING PAGE 2 Signed, sealed and delivered in the Presence of the following witnesses: Sign. Print: /';� //� r �� Print: -- ° - -r- Signed, sealed, and delivered in the Sign: Print: Sign: � Print: Signature Page ,Amendment Mo. I to Grant ,agreement, By and Among Orange County, F70,id,, City of Orlando, Fiorlda, Lake Nona Land Company, LLC• and Burnham Institute for Medical Research 'LNLC'> LAKE NONA LAND COMPANY, LLC, a Florida limited liability company By: Jame . Zb 1, President Executed on 7----,2009. BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit corporation: By: Name: Title: Date: H/161 /Wesley PowetUMy DocumenWMcentive Agreements/$umham Institute/Amend. No. ! to Grant Agreement 4 c / 0 APPROVED 0Y ORANGE COUNTY BOARD Ol+ COutm mmissiom -% . MR FUNDING PARTIES AGREEMENT THIS FUNDING PARTIES AGREEMENT (this "Agreement ") is made as of the day of March, 2007, by and among Orange County, Florida, a charter county and political subdivision of the State of Florida ( "County"), City of Orlando, a municipal corporation organized and existing under the Laws of the State of Florida ( "City'), and Lake Nona Land Company, LLC, a Florida limited liability company ("LNLC ") (County, City and LNLC are referred to individually as a "Funding Party" abd collectively as the ' coding Parties'). RECITALS A. The Funding Parties and Burnham have entered into the Grant Agreement, B. Pursuant to the terms of the Grant Agreement, LNLC will convey to County the Permanent Facilities Site in accordance with the terms of the Gift Agreement (Permanent Facilities) of even date herewith. C. Pursuant to County's home-rule authority and authority under Chapter 125 (including without limitation Section 125.39, thereof) and Chapter 159, Florida Statutes, and subject to the terms of the Gift Agreement (Permanent Facilities), the County will accept a special warranty deed from LNLC under which LNLC will reserve certain reversionary interests as more thoroughly described herein and in the deed. D. Pursuant to the terms of the Grant Agreement, at the time of execution of the Gift Agreement (Permanent Facilities), County will simultaneously enter into the Ground Lease with Burnham. E. The Funding Parties desire to enter into this Agreement in order to set forth certain understandings and agreements among the Funding Parties relating to the Grant Agreement, the Ground Lease, the Gift Agreement (Permanent Facilities), the Permanent Facilities Site and the Permanent Facilities. city uncii Meett o:. ' 'W��.. 3v��e� 0ft1WAALWV .e 31M MS DFW uq ?I2Q=7 7AB PM • r r 0 AGREEMENT The parties agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Term. The term of,this Agreement shall commence on the date of last execution by a party hereto and shall expire upon the earliest of the following events: (i) Burnham has exercised its option to purchase the property under the Ground Lease and the County's reversion interest in its conveyance to Burnham has expired, or (ii) County conveys title to the Property (as defined herein) in accordance with the terms herein, whether to LNLC or any other party, and fully disburses the proceeds therefrom in accordance with the terms herein; provided, in the event Burnham has not developed or conveyed all of the Surplus Land to End Users or other third parties as of such date, this Agreement shall continue until the development or sale of such property so long has LNLC has the right to exercise the "springing interest" under the Development Agreement entered into pursuant to the terms of the Gift Agreement (Surplus Land).. 3. Definitions. Any term not otherwise defined in the body of this Agreement shall have the meaning set forth in Schedule 1 attached hereto and incorporated herein by this reference. In addition, for purposes of this Agreement, the following definitions shall apply: -� a. " Majority Vote" shall mean fifty -one percent (510/9) the Total Share as of the date of the applicable vote, as determined by the affirmative vote of the Funding Parties. b, "Property" shall mean collectively the Permanent Facilities and the Permanent Facilities Site. C. "Proportionate Contribution" shall mean the amount of each Funding Party's actual contribution with respect to the incentive transaction with Burnham as provided in the Grant Agreement, which shall be limited to the Grant Funds, the Operations Contributions, and the Philanthropy Drive Guarantee, and the value of the Permanent Facilities Site and the Surplus Land conveyed from LNLC to County and Burnham, respectively, which value has been established for purposes of this Agreement; to be $13,500,000.00, the projected maximums of which are as set forth in Exhibit "A" attached hereto and incorporated herein by this reference. The Proportionate Contribution shall be adjusted as each contribution is made and in accordance with the terms of this Agreement. 2 ORLO teALES1MMOA 5170'110026 MU 4N 7*WO07 T= PM r; • ■ d. "Proportionate Share" shall mean each Funding Party's share of the benefits and liabilities relative to the Property which shall be calculated as a percentage of the whole based on each party's Proportionate Contribution, e. "Right of Re- Entry" shall mean the reversionary right or right of re -entry pursuant tai Section 125.39, Florida Statutes, reserved in favor of LNLC pursuant to the special warranty deed conveying the Permanent Facilities Site to County for the specific purpose of ground leasing such property to Burnham for the Permissible Use in accordance with the terms of the Grant Agreement, the Gift Agreement (Permanent Facilities) and the Ground Lease, upon the failure of which LNLC may exercise reversionary rights as more My set forth therein and herein. f. "Total Share" shall mean the cumulative Proportionate Share of each of the three Funding Parties. 4. Actions of County under Ground Lease. a. Material Actions and Determinations. All material actions and determinations to be taken or made by County under the Ground Lease shall be taken or made by County based upon a Majority Vote of the Funding Parties at a meeting upon at least three (3) Business Days' written notice to each of the Funding Parties. A Majority Vote shall be binding upon each Funding Party. b. Default by Burnham. In the event any Funding Party .believes that Burnham is in default of any of the terms of the Ground Lease, such Funding Party shall provide written notice to the other Funding Parties, and the Funding Parties shall meet within three (3) Business Days to determine, by Majority Vote, whether they agree that a default has occurred under the Ground Lease. If the default under the Ground Lease is of the type that allows County to terminate the Ground Lease or take any other action, remedial or otherwise, then the Funding Parties shall determine, by a Majority Vote, whether to terminate the Ground Lease or take such other action. 5. Proportionate Obligations of the Funding Parties. .During the tern of this Agreement, each Funding Party shall, to the extent of its Proportionate Share, be liable for and, shall promptly fund, any and all liabilities, obligations, losses, fines, fees, penalties, costs, or expenses that may arise from the operation, maintenance, leasehold, or ownership of the Permanent Facilities and Permanent Facilities Site including without limitation those arising from taxes, special assessments, casualty, contract, and/or environmental remediation, and those obligations County, as lessor, is required to pay under the Ground Lease as a result of Burnham's failure to do so ("Proportionate Obligation "). The foregoing sentence shall not be construed to (i) limit or in any way affect Burnham's liabilities or obligations to the Funding Parties under the Grant Agreement, the Ground Lease or otherwise, (ii) create any obligation or liability from the Funding Parties to Burnham or (iii) relieve LNLC of any obligations for payment of Community Development District assessments it may have pursuant to the Gift Agreement (Permanent oRLIAENAST 027o.e 31762 M DW Oh14lZWW 7:08 PM 198 Facilities). Each Funding ....... g arty shall have the right but not the duty, to pay all or a portion of another's Proportionate Obligation in the event a Funding Party (the "Defaulting party') fails to pay it promptly or otherwise agrees to have its unpaid Proportionate Obligation covered by that Funding Party, In the event a Funding Party (the "Paying Party") pays 411 or a portion of another's Proportionate Obligation pursuant to the foregoing sentence (the "Defaulted Payment"), the Defaulting Party's Proportionate Share shall be diluted on a dollar- for - dollar basis, and the Paying Party's Proportionate Share augmented accordingly; provided, however, that nothing herein shall be construed to limit such Paying Party's recourse to all available equitable and legal remedies for recovery of the Proportionate Obligation. Further, Paying Party shall be entitled to receive interest at the rate of eighteen percent (18 %)* per annum on the Defaulted Payment, with the Defaulted Payment and interest thereon being paid to the Paying Party on a priority basis out of the Proceeds (as defined below) of the Defaulting Party upon disposition as provided in Section 6 hereinbelow. The terms of this paragraph shall survive the termination of this Agreement to the extent Proportionate Obligations accrue prior thereto, 6. Proceeds from Property. a. Each of the Funding Parties shall receive its Proportionate Share of all proceeds received by County from the sale, lease or other disposition of all or any portion of the Permanent Facilities and/or the Permanent Facilities Site (the "Proceeds'), in the event of a sale of the Permanent Facilities and/or the Permanent Facilities Site, County shall pay to each of the other Funding Parties their Proportionate Shares of such Proceeds within ten (10) Business Days after receipt of such Proceeds and, in the event of lease, shall pay to each of the other Funding Parties their Proportionate Share of such Proceeds within ten (10) days after receipt of such Proceeds; provided, however, that in the event any Funding Party is the purchaser of the Property, that party, in lieu of receiving its Proportionate Share of the Proceeds, may take a credit against the purchase price to be paid to the seller in an amount equal to that party's Proportionate Share. b. In the event of a Reacquired Interest, at the time of a sale of the Property, LNLC's share of the Proceeds shall be reduced on a dollar - for - dollar basis according to City's and County's Proportionate Values (as defined in Section 11 below) and City and County shall each receive their respective Proportionate Value. Should LNLC's dollar - for- dollar reduction exceed LNLC's total share of the Proceeds due, LNLC shall pay to City and County from the proceeds of any conveyance, lease, or other disposition of said Reacquired Interest a percentage of such proceeds equal to such party's Proportionate Value 7. Right of Re- entry. Notwithstanding any other provision of this Agreement, LNLC shall have a Right of Re -Entry with respect to the Property, which LNLC may exercise upon the expiration or termination of the Ground Lease 'Term" (as defined under the Ground Lease) without the purchase option thereunder having been exercised. LNLC may notify County and City of its desire exercise its Right-of-Re-Entry by providing County and City with written notice thereof at any time prior to or within ten (10) days following the Funding Parties' decision 4 ORLIMA E8n6 W0.a 317MO26 DW dM 2I2WM? 706 PM No I 9B a ........... . to pursue a disposition of the Property by Bid Sale (as defi . .. . ned below). In the event LNLC wishes to exercise its Right of Re -entry, it shall notify County and City in writing and request that the Fair Market Value of the Property be determined as provided herein. Within ten (I o) days following a determination of the Fair Market Value as provided herein, LNLC shall notify County and City as to whether it wishes to consummate the exercise of its Right of Re -Entry based upon the Fair Market Value, If LNLC notifies County and City that it desires to consummate the Right of Re -Entry based upon the Fair Market Value, within ten (10) days thereafter the parties shall consummate the Right of Re -Entry by LNLC's payment to City and County their Proportionate Shares based on the Fair Market Value of the Property, simultaneously with County's reconveyance of the Property to LNLC. If LNLC notifies County and City that it does not desire to consummate the Right of Re -Entry based upon the Fair Market Value, the Funding Parties shall determine the course of action with respect to the Property as provided herein, This Right of Re -Entry shall terminate and be of no further force or effect without cost or liability to any party hereto on the date that County conveys the Property pursuant to a Bid Sale, whether to LNLC or any other party. In the event the Funding Parties decide to sell the Property through a Bid Sale and LNLC does not exercise its Right of Re -Entry within said ten -day period, LNLC shall provide the County with written assurance no later than the expiration of said ten -day period, that LNLC's Right of Re -entry shall automatically expire without further action required by any party, immediately upon the County's conveyance of the Property to the successful bidder. LNLC's Right of Re -Entry shall be suspended until the completion of the Bid Sale and terminated upon conveyance; provided, in the event the Funding Parties thereafter fail to accept any bids derived from such Bid Sale, LNLC's Right of Re -Entry shall continue in full force and effect. 8. Fair Market Value. At any time an estimate of "Fair Market Value" is required under this Agreement, the Funding Parties shall negotiate in good faith for a period of not to exceed thirty (30) days in an attempt to agree upon the Fair Market Value and, failing such agreement, the Funding Parties shall attempt to agree within the same thirty -day period on an appraiser to estimate the Fair Market Value. If the Funding Parties agree upon the appraiser, then such appraiser shall estimate the Fair Market Value within thirty (30) days thereafter, which estimation shall be binding upon the Funding Parties. If LNLC and the other Funding Parties are unable to agree as to the Fair Market Value or any such appraiser within such thirty-day period, then LNLC, on the one hand, and the other Funding parties, on the other hand, shall each engage an appraiser who is licensed in the State of Florida, holds a Member of Appraisal Institute (MAI) designation, and has a minimum of ten years of experience in appraising commercial property in Orange County, Florida and the parties shall notify each other of the appraiser so selected. Within fifteen (15) days thereafter, the two appraisers so selected shall select a third appraiser who is similarly qualified, and each of the three appraisers shall estimate the Fair Market Value of the Property within thirty (30) days after the selection of the third appraiser. The Fair Market Value shall be determined by taking the average of the three appraisals, Each appraiser shall notify each of the Funding Parties in writing of such appraiser's conclusion. LNLC, on the one hand, and the other Funding Parties, on the other hand, shall bear the costs of the appraiser selected by it or them (unless the parties agree as to the appraiser, in which event the cost of such S o��sneooz�o.e 31 7 71N PM IV* appraiser shall be divided equally between LNLC, on the one hand, and the other Funding Parties, on the other hand), and the costs of the third appraiser shall be divided equally between LNLC, on the one hand, and the other Funding Parties, on the other hand. Notwithstanding any other provision of this Agreement, Fair Market Value shall always be reckoned from highest and best use of-the Property as that term is used in The Appraisal of Real Estate, 12'h ed., published by the Appraisal Institute (2001), or such successor publication as may be designated by the �. Appraisal Institute giving due consideration to all restrictions, conditions and matters both benefiting and burdening the property being appraised. 9. Course of Action/Disposition. In the event the Ground Lease terminates or expires without Burnham's having exercised its option thereunder, all Funding Parties shall meet as soon afterward as practicable to determine the Fair Market Value of the Property, the initial i meeting of which shall occur in no event more than twenty (20) days thereafter. The Fair Market Value shall be established pursuant to Section 8 above. Once the Fair Market Value has been established, the Funding Parties shall meet within ten (10) days thereafter to determine the course of action with respect to the Property. Potential courses of action include, but are not limited to (i) selling the Permanent Facilities and/or the Permanent Facilities Site through a Bid Sale (as defined below), (ii) leasing the Permanent Facilities and/or the Permanent Facilities Site, (iii) retaining the Permanent Facilities and/or the Permanent Facilities Site for a use to be determined by the Funding Parties or (iv) any other action permitted by law that is determined by the Funding Parties to be in the best interest of the Funding Parties. In the absence of unanimous agreement among the Funding Parties on a particular course of action within thirty (30) days after convening the disposition meeting, the parties shall be deemed to have elected to sell the Property in accordance with Section 125.35, Florida Statutes (2006), as it may be amended, or in �. accordance with such public bid sale procedures, authorized by statute, as may be provided by County ordinance at that time (the "Bid Sale"); provided, the Bid Sale shall be an open outcry, public auction, of which the Funding Parties shall have received at least thirty (30) days' prior written notice, without sealed bids (i.e., all bidders are aware of the bids of the other bidders and all bidders may continue to bid until no bidder desires to increase its bid above the highest bid and the auction is declared closed). Unless LNLC agrees not to participate in the Bid Sale (and neither County nor City elects to bid), County and City, to the extent permitted by law, may exclude LNLC from discussions between City and County regarding reserve price (if any) or consideration or acceptance of bids, unless City and County jointly agree otherwise. 10. Joint Operations. In the event the parties unanimously agree on a course of action other than a Bid Sale of the Property as provided in the immediately preceding paragraph, the Funding Parties shall enter into a. joint operations agreement, which shall include, without limitation, the following: a. Manggment Cgmmittee. The Parties shall form a committee (the "Committee ") which shall manage the Permanent Facilities and/or the Permanent Facilities Site, of which each Party shalt have one member ("Member'). Unless otherwise agreed, the Member for County shall be the County Administrator, the Member 6 0FiL11RFJ1LE871060MA 31 762M DHJ dH 2M M7 70 PM I ' 9B .. . ........ for City shall be the Chief Administrative Officer and the Member for LNLC shall be LNLC's President. b. Copduct and Management with respect to tiaroperty. The Parties shall exercise all rights available to them in relation to the Committee to ensure that: L the Parties are given full opportunity to examine the books and accounts kept by the Committee and are supplied with all relevant information, including financial statements and such other financial information in such form as they reasonably require to keep each of them properly informed about the business of the Committee and generally to protect their interests; ii. Meetings of the Committee are convened, at regular intervals not exceeding three (3) months, by not less than two (2) weeks' written notice or such minimum period as is permitted by law accompanied by an agenda specifying the business to be transacted, except in the case of emergencies, when the notice period may be less. iii. Unless otherwise determined by the Committee, the day -to -day business and affairs with respect to the Property will be managed by LNLC (the "Manager'), except to the extent specifically enumerated matters are reserved for action by the Committee or the Parties pursuant to the governing agreement. c, Matters Rea iri z Ilgani o� us AZXUal gf the _Committee, The Parties agree that they will exercise all rights available to them in relation to the Committee so as to ensure that the Manager or the Committee does not, without the prior consent of all of the Parties ( "Unanimous Approval"): i, give a guarantee or indemnity to secure the liabilities or obligations of any person except in the ordinary course of business; ii, sell, transfer, lease, assign or otherwise dispose of a material part of its undertaking, property or assets (or any interest in them), or contract to do so, other than in the ordinary course of business; iii. merge with any other Person or amalgamate or consolidate its business with the business of any other Person; iv. take or permit the taking of any step to be wound up or liquidated; V. make any change to the number of Members or the number of Members each Party is entitled to appoint; vi, make any change to its policy relating to distributions and return of capital; ORLIMAlE&TWW70.8 51702Wn LWJ cIN 28012007 7:01 PM , IC-Ill • 1 ... ....... . viil approve or amend the annual operations budget (the "Operations Budget"); } viii. undertake any single capital project costing in excess of Two Hundred Thousand and no /100 Dollars ($200,000,00) which is not included in the Operations Budget; ! i ix. undertake any expenditure with respect to the Permanent Facilities in excess of Two Hundred Thousand and no /100 Dollars ($200,000.00) in any one (1) year, which is not included in the Operations Budget; or X. create or permit to exist any pledge, lien or charge over, or grant any option or other rights over or dispose of any interest in, any of the interests in the Property. d. Matters Requiring Majority Approval of thg Committee. The Parties agree that they will exercise all rights available to them in relation to the Committee so as to ensure that the Manager or the Committee does not, without a Majority Vote: i. enter into a contract or transaction except in the ordinary and proper course of business and on arm's length terms; I make a loan or advance of any amount or give credit (other than normal trade credit) to any Person; iii. enter into any partnership, profit- sharing agreement, pooling arrangement or royalty agreement or other similar arrangements whereby title to revenues from the Property is or may be shared with any Person to facilitate the execution of the operations plan; iv. release any rights with respect to the Property under any agreement or agree to any amendment, termination or modification thereof; V. undertake any capital project costing in excess of Fifty Thousand and no /100 Dollars ($50,000.00) and less than Two hundred Thousand and no /100 Dollars ($200,000.00) up to an aggregate of Four Hundred Thousand and no /100 Dollars ($400,000.00) per year, which is not included in the Operations Budget; or vi, hire or retain any person or entity to manage or operate the Permanent Facilities; e. Additional Cauital Contributions. Each Party shall fund its Proportionate Obligation as may be needed on an emergency basis in order to repair or preserve the Permanent Facilities and/or the Permanent Facilities Site to the extent the income derived 308=028 DMJ dN a/2 M7 ?M PM 1 I90 from the lease or operation of the Permanent Facilities is insufficient to meet such need (the "Required Contribution "). f, No 8xpenditures Without Approval, Notwithstanding any provision of this Agreement, all capital, operating, and maintenance contributions by City, County and LNLC are subject to. the prior approval of the City Council, the Board of County Commissioners, and the Board of Directors of LNLC, respectively, provided, nothing herein shall be deemed in any way or manner to diminish the remedies set forth herein for a party's failure to find its Proportionate Obligation or otherwise. 11. interests in Surplus Land. In the event LNLC or any of its affiliates, subsidiaries, or assignees (including any entity designated by LNLC to receive the Surplus Land under the Development Agreement entered into pursuant to the Gift Agreement (Surplus Land)) acquires any legal or beneficial interest in the Surplus Land as a result of a default of Burnham pursuant to the Development Agreement entered into pursuant to the terns of the Gift Agreement (Surplus Land) (the "Reacquired hnterest'j, LNLC shall promptly, and in no event more than fifteen (15) days from the date of such reacquisition, notify all Funding Parties of the essential terms of such reacquisition, including the party holding legal or beneficial title thereto (the "Alternate Foundation', The Fair Market Value of the Reacquired Interest shall be determined as soon as possible after the right of entitlement to reacquire has accrued, as evidenced by Burnham's failure to cure within the required timeframe, but in no event more than sixty (60) days after the date of reacquisition, in accordance with the procedures set forth in Section 6 of this Agreement. County and City shall each be entitled to a proportionate share of the Fair Market Value of the Reacquired Interest based upon their Proportionate Shares hereunder. By way of example only, in the event the Fair Market Value of the Reacquired Interest is determined to be $100,000 and County's, City's and LNLC's.Proportionate Shares are 40 %, 30% and 30%, respectively, County and City shall be entitled to $40,000 and $30,000, respectively (the "Proportionate Values) "). County and City shall each be entitled to receive its Proportionate Value upon the earlier to occur of the following. (i) a sale of the Reacquired Interest by the Alternate Foundation; or (ii) distribution of Proceeds as provided hereunder. 12. Miscellaneous. a. Memorandum of Amyment. Simultaneously herewith, the Funding Parties shall execute the Memorandum of Funding Parties Agreement attached hereto as Exhibit 'B" and incorporated herein by this reference (the "Memorandum') which shall be recorded in the Public Records of Orange County, Florida promptly hereafter. b. Mg—es. All notices and elections (collectively, `notices' to be given or delivered by or to any party hereunder, shall be in writing and shall be (as elected by the party giving such notice) hand delivered by messenger, facsimile courier service or overnight mail, or alternatively shall be sent by United States Certified Mail, with Return Receipt Requested. The effective date of any notice shall be the date of delivery of the notice if by personal delivery, facsimile, courier services or overnight mail, or if mailed, 9 M veEN.EaM OMA 31MI U8 DHJ Ay WW=7 7.cS Pu r upon the date which the return receipt is signed or deliv a p gn ery is refused or the no....� tic_. e designated by the postal authorities as non - deliverable, as the case may be. The parties hereby designate the following addresses as the addresses to which notices may be delivered, and delivery to such addresses shall constitute binding notice given to such i party. If to County: Orange County, Florida P.O. Box 1393 Orlando, Florida, 32802 -1393 Attention: County Administrator Facsimile: (407) 836 -7399 With a copy to: Orange County, Florida P.O. Box 1393 Orlando, Florida 32802 -1393 Attention: Manager, Real Estate Management Division Facsimile: (407) 836 -5969 If to City: Chief Financial Officer City of Orlando, Florida 4a' Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile (407) 246 -2707 With a copy to: City Attorney City of Orlando, Florida 3`d Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile (407) 246 -2854 10 MLIMALESTwoz7oa 31 78?l M DM dp P/WMT 70 PM If to LNLC: Lake Nona Land Company, LLC 9801 rake Nona Road Orlando, Florida 3.2827 , Attention: James L. Zboril, President Facsimile: (407) 438 -0207 With a copy to: Tavistock Corporation 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Thakkar, Chief Executive Officer Facsimile: (407) 876 -0085 and Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Facsimile: (407) 650 -0920 Any party may from time to time change the address to which notice under this Lease shall be given such party, upon three (3) days' prior written notice to the other parties. C. Governing Law and Venue. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida. The parties acknowledge that personal jurisdiction upon proper service will be valid in the State of Florida, and that venue of all actions arising out of or related to this Agreement shall be proper only in a State Court of competent jurisdiction located in Orange County, Florida. d. Modifications to Agreement. The parties shall not be bound by any modification, cancellation or rescission of this Agreement unless in writing and signed by the party(ies) to be bound. e. Binding _9 . The terms, conditions and covenants of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their permitted successors, and assigns, if any. £ Construction. No party shall be considered the author of this Agreement since the parties hereto have participated in extensive negotiations And drafting and redrafting of this document to arrive at a final Agreement. Thus, the terms of this 11 ow.+vWALsneNMA 31TGZM a a*u e4 moor roe pM � 9B � J Agreement shall not be strictly construed against one party as .opposed to the other Marty based upon who drafted it. In the event that any section, paragraph, sentence, clause, or provision hereof, shall be held by a court of competent jurisdiction to be invalid, such shall not affect. the remaining portions of this Agreement and the same shall remain in j full force and effect. I g. Entirety of Axe rn . The parties agree that this Agreement sets forth the entire agreement and understanding between the parties with respect to the disposition of the Permanent Facilities and/or the Permanent Facilities Site and supersede all prior negotiations, representations, understandings or agreements, whether oral or written, between the parties or made by third parties to either party and there are no promises, covenants, agreements, representations, warranties or understandings between the parties other than those stated herein. None of the provisions, terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered except by written instrument executed by the parties hereto. h. Severability. If any term of this Agreement or the application thereof to any person or circumstances shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such terns to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Agreement shall be valid and enforceable to the fullest extent permitted by law. i. Time of Essence. Time is of the essence of this Agreement and in the performance of all conditions and covenants to be performed or satisfied by either party hereto. Whenever a date specified herein shall fall on a Saturday, Sunday or legal �4 holiday, the date shall be extended to the next succeeding Business Day. j. Force Majeure. Any party hereto shall be excused for the period of delay in the performance of any obligations hereunder when such delay is occasioned by a Force Majeure Event and the time for performance shall be automatically extended for a like period. k. Waiver. No waiver of any provision of this Agreement shall be effective against any party hereto unless it is in writing and signed by the party(ies) waiving such provision. A written waiver shall -only be effective as to the specific instance for which it is obtained and shall not be deemed a continuing or future waiver. 1. Cgotervarts. This Agreement may be executed in any two (2) or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. 12 ora.twEUr�eaosro.a sae2�ooxa o►u aM snarioa� ova a►� �._./ / M. Captions. The captions contained in this Agreement are for convenience of reference only and in no way define, describe, extend or limit the scope or intent of this Escrow Agreement or the intent of any provision contained herein. n. Enforcement: Costs. In the event that any party finds it necessary to employ an attorney to enforce any provision of this Agreement, the predominantly prevailing party will be entitled to recover from the other parry its reasonable attorneys' fees and costs incurred in. connection therewith (including costs of collection), at both trial and appellate levels; including bankruptcy proceedings, in addition to any other remedies to which such party may be entitled. The requirement to pay the predominantly prevailing party's reasonable attorneys' fees and costs will survive any termination or expiration of this Agreement. o. No Assignment, Assignment of any or all of a party's interest in this Agreement without the unanimous written consent of all parties hereto shall be void ab initio and of no force and effect. P. Exhibits and Schedules. All Exhibits and Schedules referenced in this Agreement are incorporated into this Agreement by such reference and shall be deemed to be an integral part of this Agreement. (Remainder of this page is left blank intentionally) ORUWEMESTWO27OA 31 762A DHJ dN 202&2007 708 PM IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day first written above. ATTEST: Martha O Haynie, County Comptroller As Clerk of the of County Commissioner By: Deputy Clerk Date: CHAR Q a 2np ORMREALBSTW90270.8 31782A028 DHJ dN 2126/2007 7;08 PM ORANGE COUNTY, FLORIDA By: Board of unty Commis 'oners By: Richard T. Crotty Orange County Mayor Date: w arran i 14 l�..y ATTEST: By: lYvwUv ! O "'w*tw1*14 " Alana C. Brenner, City Clerk APPROVED AS TO FORM AND,LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, FLORIDA, ONLY: 01,2 � 15—, 2007 C, s:5 %16- City Attorney 15 0RL1V LEST% 2?0.a MGM= OW q 2f26=7 M PM CI'T'Y OF ORLANDO, a municipal corporation organized and existing under the laws of the State of Floc , By: fg+w0► uddy Dyer, Ma r /I Date: • P R IOW Signed, sealed and delivered in the LAKE NONA LAND COMPANY, LLC, presence of the following witnesses: a Florida limited liability company By: — Name: Masesh Thakkar, Vice President IN s._w W,A 0- u. 16 078_11REALWT W70.8 31782/0028 DHJ dhj 21288007 7A8 PM Date: ©71 0,c-5)P % Foul VAII Flo l.� Exhibits and Schedules Schedule 1 Definitions Exhibit "A" Proportionate Contribution Exhibit `B" Memorandum of Funding Parties Agreement 17 DRtNtEA1.E8MM70.8 sIMai N M a g Warn" Yce wa 9B 9B Schedule 1 Definitions . "Account" shall mean that certain separate, restricted, interest- bearing escrow account established pursuant to the terms of the Escrow Agreement. "AmW Amn Wage" means 130% of the average private sector wage in orange County, Florida as determined by the Agency for Workforce Innovation ("AWP') in the most recently released ES 202 Report during the year in which Agreed Average Wage is being measured for purposes of the Grant Agreement. As of the Effective Date of the Grant Agreement, the Agreed Average Wage based on AWN most recent ES 202 Report (2004) is $46,965 (130% of $36,127, the average private sector wage in Orange County, Florida). The term "wage" includes all wages, salaries, commissions, bonuses, drawing accounts (advances to employees against future earnings), prizes and awards (if given by employer for employment), vacation pay, payment to employees of difference between regular pay and jury pay, payments to employees temporarily absent while in military service, wages earned before death but paid after death, dismissal pay, sick pay (not made under a plan or system) and supplemental payments (difference between workers' compensation and employee's salary). "Approved Architectural Criteria" shall mean certain restrictions, limitations and design criteria for development and construction of improvement within the Lake Nona DR[ adopted pursuant to the Master Declaration. "Approved Design ' shall mean the Space Program, schematic design and construction schedule established pursuant to the terms of the Development Obligation Agreement for the Permanent Facilities. "Architect" shall mean the architect, including its employees, agents and subcontractors, retained by Burnham or the Project Manager to provide professional design and engineering services for the Temporary Facilities or for the Permanent Facilities under an Architect Agreement. "Architect Ate" shall mean the Consultant Contract between Burnham or the Project Manager and Architect, as same may be amended from time to time. "Available Funds" shall mean the Grant ids (inclusive of any interest on such funds escrowed in the Account), less any and all amounts previously expended or committed for the Permanent Facilities from such funds pursuant to the terms of the Development Obligation Agreement and the Grant Agreement, or expended, committed or budgeted from such funds for the Temporary Facilities under the teens of the Grant Agreement. "ise Etunding; Amount" shall mean the initial amount of the Tier 1 Funds contributed by the Funding Parties to the Account, in the amount of $7,000,000, in accordance with Part V.A.3.a. of the Grant Agreement. "Doggy Creek CDD" shall mean the Boggy Creek Improvement District. I. ORLIVWX 59TOW70A 017021 = DW dt4 VZ A007 E:32 AM t I 98 `Bond De gulf' means an event of default under the Bond Documents which (a) would entitle the County of San Diego or the Trustee under the Bond Documents to exercise remedies under the terms of the Bond Documents, (b) has not been cured or waived, and (c) would reasonably be expected to have a Material Adverse Effect; provided that such Bond Default shall cease to exist if any remedies exercised upon an uncured event of default have been rescinded and annulled under the terms of the Bond Documents. "Boned Documents" means the Installment Purchase Agreement and Installment Sale Agreement between Burnham and the County of San Diego and the Trust Agreement among Burnham, the County of San Diego and the Trustee named therein, each dated as of February 1, 2006, as may be amended `Bonds" shall mean the payment and performance bonds required pursuant to the Development Obligation Agreement. `Budge —f' shall mean the reasonable and probable total cost of the design, planning, permitting, and construction of the Permanent Facilities, as estimated by the Project Manager, which shall be subject to adjustment in accordance with the terms of the Development Obligation Agreement. The Budget shall include the Contingency and the Laboratory Allowance, which shall be separately budgeted for and reserved in accordance with the terms of the Development Obligation Agreement. `B rn�lram" shall mean Burnham Institute for Medical Research, a California nonprofit public benefit corporation. "Burnham Campus" shall mean approximately filly (50) acres of land located within Lake Nona South, in the approximate location shown on Exhibit `B" to the Grant Agreement, to be donated by LNLC in accordance with the Grant Agreement and the Gift Agreements. "Business Dom' shall mean a day (other than a Saturday or Sunday) on which banks generally are open in Orlando, Florida for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system. "Business Plan" means the business plan of Burnham for its Florida operations, which includes an initial budget and an organizational plan, and may include, among other information, strategic goals and objectives, general research and development information, and status reports. The Business Plan shall cover the first 10 years of Burnham's operations in Florida. The Business Plan shall include a proposed budget, including a staffing plan, an equipment purchase budget, and proposed operating expenses. The staffing plan shall identify the number of Jobs and estimated salaries to be funded in Florida, A copy of the Business Plan as of the Effective Date of the Grant Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference. The Business Plan may be amended subject to and in accordance with the applicable provisions of the Grant Agreement. "CDD" shall mean the Boggy Creek CDD or any other community development district created by LNLChaving jurisdiction over the Permanent Facilities Site. 2. OiiL1i RLU.ESTf 10Qe4i0A at oFU db ara�oo� eaz � 9B "Ceased Qmgons" shall mean, for each Report Period during the Meant anent Period, the situation where Burnham's total number of Jobs created and maintained at the Temporary Facilities or Permanent Facilities as of the end of such Report Period is less than fifty percent (50 01e) of the total number of Jobs, measured in the aggregate, that Burnham was to have created and maintained in Orlando, Florida as of the end of such Report period as set forth in Bumham's Business Plan (with fiscal years after fiscal year 2016 being the same as for fiscal year 2016). For example, in June 2010, Burnham would be scheduled to have created a total of one hundred twenty -one (121) Jobs. If the number of Jobs at Burnham's Florida location as of such date was sixty (60) or less, ,Burnham would have Ceased Operations for purposes of this definition. For purposes of the determination of Ceased Operations as of a given point in time, any Job with a wage paid by Burnham that would cause a moving two -year average of the wages for all Jobs created by Burnham as of such time to be less than the Agreed Average Wage may not be counted for purposes of rejecting a claim of Ceased Operations. "Certificate of OccMan�' or `W' shall mean a permanent ceatifxcate of occupancy, certificate of completion or such other equivalent approval, as applicable, for the Permanent Facilities issued by the City. "Change Ordez ' shall have the meaning set forth in the applicable Construction Contract. "�},yt ' shall mean City of Orlando, Florida, a municipal corporation organized and existing under the laws of the State of Florida. "Closine" shall mean the date when the parties to the Gift Agreements exchange the -� instruments and documents described therein. h "Clo&gl t," _Ag shall mean Broad and Cassel, Bank of America Center, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. "Communications Agreements" shall mean any and all agreements, and any and all related documents, such as easements, leases, licenses, or other arrangements of any type, concerning, governing, or relating to the provision of any Communications Services on or to the properties within the Lake Nona DRI or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or otherwise utilizing (e.g., leasing) the such properties, or any portion thereof or any buildings or any portions of buildings thereon. "Communications Sg3dces" shall mean any and all types of services and systems connected with, or related to, the provision of communications (e.g., voice, video or data services), including the following: (i) any and all types of voice services, including local telephone service, long distance telephone service, and voice over IP services; (ii) any and all types of "cable service," as such, term is defined by the Federal Communications Commission; (iii)' any and all types of video services, including multi - channel video service, broadcast service, internet streaming, video over IP services, and interactive video service; (iv) any and all types of internet services, including high -speed Internet access services, voice over IP services, and video over IP services; (vi) any and all types of broadband services; (vii) any and all types of baseband services; (viii) any and all types of narrowband services; (x) any and all types of telemedicine 3. ORL1M1E1LEAMM79A 3170?IMDHJdN2M ZWB=AM �` services or other communications- related services that are utilized by health care providers or health care facilities; and (ix) any and all types of security monitoring services. "Conoid2a Q tract' shall mean any and all construction contract(s) for the construction of the Temporary Facilities or any portion thereof (to be entered into from time to time by and between Burnham and any Contractor), or the Permanent Facilities or any portion thereof (to be entered into by Burnham or the Project Manager and any Contractor selected by the Project Manager in accordance .with the Development Obligation Agreement), as applicable, as such Construction Contract may be amended or replaced from time to time. The term "Construction Contracts" shall also include the "Prime Construction Contract." " nstruction Contract Documents" shall mean the Construction Contracts and all amendments thereto incorporating the final, constructible plans, specifications and all other reasonably necessary documents for the design, planning, permitting and construction of the Pemianent Facilities, and shall include the Drawings and Specifications, and all Change Orders executed or issued subsequent to the date of the Construction Contracts. nsultant' shall mean any person(s) or entities engaged by the Project Manager or Burnham responsible for services related to the construction of the Temporary Facilities or Permanent Facilities such as those services in connection with enviro=cntal analysis, pre - construction, owner's representation, cost estimation, scheduling, expediting, procurement, insurance, value engineering services, inspection, materials testing and other similar services related to the accounting, documentation, inspection, permitting, management, testing or construction of the Temporary Facilities or the Perminent Facilities. "Consultant ContzacY' shall mean the contract(s) to provide services in furtherance of the planning, design, permitting, and construction of the Temporary Facilities (to be entered into by Burnham and the Consultant(s)) or the Permanent Facilities (to be entered into by and between the Project Manager and the Consultant(s) selected by Burnham or the Project Manager in accordance with the Development Obligation Agreement), as such Consultant Contract may be amended or replaced-from time to time. "Conti cv' shall mean ten percent (10%) of the estimated total cost of the design, planning, permitting and construction of each of the Temporary Facilities and the Permanent Facilities until such time as the Prime Construction Contract and/or other Stipulated Sum contracts are fully executed, at which time the allocable portion of Contingency applicable to such cost may be reduced as to the executed contracts to four percent (4 0/9) of the oontreot price. Contingency fluids for the Temporary Facilities may be used to find cost overruns on the Temporary Facilities, and Contingency funds for the Permanent Facilities may be used as provided in the Development Obligation Agreement. The unused portion of the Contingency for the Temporary Facilities and any other part of the Two Million Dollars ($2,000,000) reserved for Project Cost for the Temporary Facilities shall be retained for use in the design, planning, permitting and construction of the Temporary Facilities provided that the total Project Cost for the Temporary Facilities does not exceed Two Million Dollars ($2,000,000), and when Burnham no longer needs such funds for the Temporary Facilities, any such remauung amounts shall be available to pay Project Cost for the G!I oRL1VWAUH VWM4 $17A7/ =Mdry227/10075:WAM • H • R Permanent Facilities, The unused portion of the Contingency for the Permanent Facilities shall be transferred to the Laboratory Allowance as provided in the Development Obligation Agreement "Contracto r" shall mean any contractor(s), duly licensed pursuant to Chapter 489, Florida Statutes, engaged by (1) Burnham for construction and/or managing the construction within the Temporary Facilities pursuant to the Construction Contracts, and (2) Burnham or the Project Manager in accordance with the Development Obligation Agreement, responsible for constructing and/or managing the construction of the Permanent Facilities, or any portion thereo4 pursuant to the Construction Contracts. The term "Contractor" shall also include the `Prime Contractor." "Cost Overruns" shall have the meaning set forth in Article VI of the Development Obligation Agreement. "9 "un ' shall mean Orange County, Florida, a charter county and political subdivision of the State of Florida. '' means a calendar day consisting of a twenty -four (24) hour period beginning and ending at 12:00 midnight Orlando, Florida time, and includes Saturdays, Sundays and all holidays, except that in the event that an obligation to be performed under this Agreement falls due on a Day that is not a Business Day, such obligation shall be deemed due on the next Business Day thereafter. "Design Contract" shall mean the design contract(s) for the design and engineering of the Temporary Facilities or any portion thereof (to be entered into by and between Burnham and any Design Professional(s)) or the Permanent Facilities or any portion thereof (to be entered into by and between Burnham or by the Project Manager and the Design Professional(s) in accordance with the r Development Obligation- Agreement), as such Design Contract may be amended or replaced from time to time. "Design Profeasional" shall mean any design professionals) or engineer(s), including any Architect and Project Engineer, engaged by Burnham for the design of the Temporary Facilities or by Burnham or the Project Manager for the design of the Permanent Facilities pursuant to the terms of the Development Obligation Agreement, "pgyelopment Obligation A e ept' shall mean that certain Development Obligation Agreement (Permanent Facilities) by and between LNBC and Burnham, as described in the Grant Agreement and as it may be amended in accordance with its terms, or any subsequent agreement with substantially the same material terms, obligations, and conditions entered into between Burnham and another Project Manager, if approved by the Funding Parties, such approval not to be unreasonably withheld. "Dpydg went Order" shall mean the City of Orlando 'Third Amended and Restated Development Order for the Lake Nona Development of Regional Impact dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, of the Public Records of Orange County, Florida, as amended from time to time, 4 0KIWEALEBrAMIMA 31TQZW8 OFU dW 2Pl1 W $= AM "Dispute Mdmfion Panel" shall mean a standing panel of three members designated to resolve disputes between the Parties under Part V.A.3.g. of the Grant Agreement. The Project Manager and Burnham shall jointly select one member of the panel. The Funding Parties shall jointly select the second member of the panel. The two members so selected shall jointly select the third member of the panel, who shall act as the panel chair. So long as LNBC is the Project Manager LNLC shall not play a role in selecting the Funding Parties' panelist. Each panelist shall be an appropriately qualified third -party neutral who is not a current employee of or current consultant to any of the Parties. Each party shall bear the cost of its respective panelist and the non- prevailing party in any dispute submitted to the panel shall bear the cost of the third panelist. In the event a panelist is unable to serve, his replacement shall be chosen by the parties that selected him. "D_r4m iM and Specifications" shall mean the construction drawings for the Temporary Facilities or the construction drawings for the Permanent Facilities, as the same may be changed from time to time in accordance with the terms of the Development Obligation Agreement. "Draw ReauesY' shall mean a request for disbursement of Grant Funds from the Account for Project Costs made by Burnham or the Project Manager to the Funding Parties, together with supporting documentation, which shall include a copy of all applications for payment, invoices or rempts certified by Burnham or the Project Manager, as well as copies of the documentation required in connection with payments due under the Design Contract, the Prime Construction Contract, the Construction Contracts or in respect of payments due to Vendors, Consultants or others. Such application shall include, as applicable, the certification set forth in Attachment F to the Development Obligation Agreement (or a comparable certification if made by Burnham for any Project Costs for the Temporary Facility) and shall include, as applicable, a copy of the consolidated and -reconciled pay application submitted to Burnham and/or the Project Manager by any Contractor, certified by the applicable Design Professional and any additional required documentation. Documentation submitted with each Draw Request shall be sufficient to establish that amounts requested for payment were actually incurred for Project Costs, Each Draw Request shall include the appropriate Waivers and Releases. Each Draw Request shall reflect the appropriate Retainage under the applicable Construction Contract. "Draw Zero" shall mean the initial Draw Request submitted by LNBC the month following the initial funding of the Account and entitled `Draw Zero, . 2007," for reimbursement of Project Costs incurred prior to the date thereof. "Effective Date" shall mean the date set forth in the first paragraph of the applicable agreement or otherwise specified as the date on which such agreement becomes effective. "Enabling Statute" shall mean Chapter 2006 -55, Laws of Florida, codified as Section 288.1089, Florida Statutes (2006). "Entitlements" shall have the meaning set forth in the Gift Agreement (Permanent Facilities) with regard to the Permanent Facilities Site or in the Gift Agreement (Surplus Land) with regard to the Surplus Land. 6. OFiLIMAuMnI 0 MA streaa= pydi►W2M7a=AM V i.40 1, "Entitlements Amendment" shall mean any amendment to the Development Order that would increase and/or modify the entitlements for the entire Lake Nona DRI as described in the Gift Agreements, including, without limitation, changing the proposed uses (e.g., to allow for the development of a hospital); provided, however, that LNLC shall not (and shall cause its affiliates not to) seek or approve a modification or amendment to the Development Order which would preclude operation of the Permanent Facilities or development of the Burnham Campus for the Permissible Use. `Environmental Laws" shall mean any federal, state or local environmental, health and/or safety - related law, rule, regulation, requirement, order, ordinance, directive, guideline, permit or permit condition, currently existing and as amended, enacted, issued or adopted in the future. The term Environmental Laws includes, but is not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and similar state or local Iaws, `Environmental Permits" shall mean all material permits, authorizations, licenses, approvals, and variances necessary under any Environmental Laws for the continued conduct of operations in the manner then conducted. 'T&crow Agent' as to the Escrow Agreement, shall mean the party designated from time to time as such under the terms of the Grant Agreement and the Escrow Agreement, and as to the Gift Agreements shall mean Broad and Cassel, Bank of America Center, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. 'Scrow Am=-- ' shall mean that certain Escrow Agreement by and among the Funding Parties, Burnham and the Escrow Agent entered into simultaneously with the Grant Agreement pursuant to which the construction of the Permanent Facilities and the Temporary Facilities shall be funded. 'Tstimatsd Target Construction Cost" shall mean the sum presently estimated to be $79,000,000, derived by deducting the amounts expended, committed or budgeted for the construction of the Temporary Facilities from the Grant Funds, which is the current estimate to complete the construction of the Permanent Facilities, from which the Contingency (estimated to be $7, 900,000) and the Laboratory Allowance will be established in accordance with the terms of the Development Obligation Agreement. "F&E" shall mean the fixtures and equipment installed or used in connection with the Temporary Facilities and the Permanent Facilities. "Final Acceptance" shall mean the satisfaction of all of the conditions to Final Payment set forth in the Development Obligation Agreement. "Final Completion" shall mean final completion of the Permanent Facilities, as evidenced by a certification by the Project Engineer and the issuance of a Certificate of Occupancy by the City, "Final Payment" shall have the meaning set forth in the Development Obligation Agmernent. 7. 9176M= PW dN 2t2W0 $M AM 96 "Force Aeure Event" shall paean an event causing delay occasioned by a cause or causes beyond the control of the party whose performance is so delayed, including, without limitation: adverse weather conditions; earthquake; acts of God; war; war -like operations; civil commotion; riots; sabotage; terrorism; governmental (except County or City as to each such party in their respective proprietary capacities) or Judicial acctioninaction, regulation, legislation, or controls (including permitting or approval delays); third party lawsuits; moratoria; labor disturbances; or material shortages, The parties acknowledge and agree that a party's incompetence or failure to deploy reasonable resources to meet its obligations under any agreement shall not be deemed to constitute a Force Majeure Event as to such party. "FundinsPuV' shall mean each of the County, City and LNLC. Collectively, these entities may be termed the "Funding Parties." "Fundi -S Parties Agreement" shall wean the agreement by and among County, City and LNLC setting forth the rights and obligations of the parties with respect to the Permanent Facilities Site arising from or in connection with the Grant Agreement. "G&AZ" shall mean accounting principles generally accepted in the United States of America, applied on a consistent basis. "Gift Agreement (Permo t Facilities)" shall mean the gift agreement entered into by and among LNLC, County and Burnham, with limited joinder by LNPH, for the donation and transfer of the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit 11R." "Gift Agreelw t (Surp)gs Lend)" shall mean the gift agreement entered into by and between LNLC and Burnham, with limited joinder by LNPH, for the donation and transfer of the Burnham Campus less the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit KD." "Gift A&%=ents" shall mean the Gift Agreement (Permanent Facilities) and the Gift Agreement (Surplus Land). "Governmental Authority" shall mean any board, bureau, commission, department or body of any municipal, county, state or federal governmental or quasi - governmental unit, or any subdivision thereof having or acquiring jurisdiction over the Temporary Facilities, the Permanent Facilities or the Burnham Campus or any portion thereof or the management, operation, use or improvement thereo£ "Governmental Licenses" shall mean all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities. "Grant A,greeimesrt" shall mean that certain grant agreement by and among the Funding Parties and Burnham, including all exhibits, amendments and supplements thereto, as it may be amended in accordance with its terms. 8. O UIVW- NXzffPM nA 3in2/0026 OW did 2WJ2007 6.32 AM ME "C3rant .Funds" shall mean the amount of Eighty -One Million Dollars ($81,000,000) in cash Pro vided to Burnham by the Funding Parties to be used for Project Cost in accordance with the Grant Agreement. "Gross FIWr Area" shall have the meaning provided in the standards of the American Institute of Architects, "Sued Lease" shall mean the ground Iease entered into by and between County and Burnham for the lease of the Permanent Facilities Site (for use in accordance with the Permissible Use restriction, as defined therein), as it may be amended in accordance with its terms, "H, azardous Substances" shall mean any hazardous or toxic substances, materials or wastes, pollutants or contaminants regulated by Environmental Laws, as now or may hereinafter be amended, including, but not limited to, petroleum products, biomedical waste, radioactive materials, flammable or corrosive substances, explosives, polychlorinated biphenyls and asbestos. "Im pact Fees" shall mean transportation impact fees or other similar impact fees assessed by any Governmental Authority in connection with the development of the Burnham Campus. erch e" shall mean the interchange constructed at the intersection of Lake Nona Boulevard and State Road 417 a/k/a the Greeneway. 'Job Commitment' shall have the meaning set forth in the Ground Lease. "22bW shall mean full -time jobs and full -time equivalent jobs (based on a 35 hour work week), and Other Personnel, as defined herein; provideel, no non_=ployee_ person _providing _..... planning, design, permitting, construction or other similar services related to the Temporary Facilities or the Permanent Facilities shall qualify as a Job hereunder, In tabulating hours worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be included. "Other Personnel" shall mean (i) employees of contractors, joint venture partners or licensees operating under agreement with Burnham that are performing fimetions or services for Burnham and/or its affiliates in Florida in Burnham's facility in Orlando, Florida and other Central Florida locations consistent with the Permissible Use, and (b) personnel engaged directly by Burnham as independent contractors to whom Burnham issues an IRS Form 1099 (only wages paid by Burnham to such Other Personnel shall be included in wages for purposes of calculation of the moving two -year average under Part VI.E. of the Grant Agreement). In addition, to be counted towards Jobs, Other Personnel shall: (a) perform ongoing services or functions for Burnham in the Temporary Facilities or Permanent Facilities that might otherwise be performed by employees, but which Burnham has elected to procure through the services of Other Personnel due to the specialized nature of the expertise required or other business purpose, and/or perform their work for Burnham substantially in the Temporary Facilities or Permanent Facilities (other than customary business travel); and (b) not perform services or functions limited to terms of less than six months; and 9. ort11R .449 Sl UM 3i"W zeacsVWMWeazAM I (c) not constitute more than 25% of the total Jobs. Jobs shall include binding offers accepted and committed to by the prospective employee or Other Personnel even though the employee's or Other Personnel's commencement date may be deferred by up to one (1) year from the date of employee's or Other Personnel's acceptance of the offer. This definition excludes any position attributable to Burnham by virtue of a merger or acquisition of an existing business or operation in Orange County, Florida. For clarification, Other Personnel and Burnham employees shall only be included in Jobs on a full -time equivalent basis based on a 35 hour work week. For example, if a Burnham full -time employee spends 50% of his time in California and 50% of his time in Orlando, Florida in a given year, that employee would count as 0.50 of a Job. If a Burnham consultant that constitutes an Other Personnel spends 12 hours per week performing work for Burnham in Orlando, Florida in a given year, that consultant would count as 0.34 of a Job. IAbomtoly A Uw ance' shall mean the sum, which shall initially be up to ten percent (10 %) of the Available Ponds existing as of the conclusion of the Preliminary Design Phase (as defined under the Development Obligation Agreement), which sum shall be determined by Burnham in its reasonable discretion during the Preliminary Design Phase and reserved under and subject to the limitations of the Development Obligation Agreement and shall be available to Burnham pursuant to the terms of the Grant Agreement and the Development Obligation Agreement for (a) the completion/installation or reconfiguration of laboratory facilities within the Permanent Facilities, which may include furniture, fixtures or equipment that were initially utilized in connection with the Temporary Facilities and can be relocated to the Permanent Facilities, and (b) after the laboratory facilities within the Permanent Facilities are at 100% completion based upon capacity for the 303 Jobs contemplated under the Business Plan and required under- the Grant Agreement, for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities), and after payment of such CDD capital assessments for the Permanent Facilities Site, for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). "Lake Nona DRP" or "Lake Nona Dev&lopment' shall mean property that is subject to the Development of Regional Impact approved by City of Orlando and the State of Florida known as the "Lake Nona Development of Regional Impact" pursuant to the terms of Development Order, or the "bake Nona Planned Development" pursuant to the terms of the PD, within which the Burnham Campus shall be located. " & e,� ona South" shall mean that portion. of the Lake Nona Development lying south of the Greeneway. 'Ugg Eauirements" shall mean all applicable laws, statutes, ordinances, rules, regulations, orders, judgments, decisions, decrees, standards, and requirements. "IMC" shall mean Lake Nona Boggy Creels, LLC, a Florida limited liability company. 10. OMIVWALE$iMU7&4 31MUM MU 4" MM OW AM i "LNLC" shall mean Lake Nona Land Company, LLC, a Florida limited liability company.. "IN W' shall mean Lake Nona Property Holdings, LLC, a Florida limited liability company. ` Nter Association!' shall mean the master property owners' association created pursuant to the Master Declaration. "Masts Declaration" shall mean the master declaration of covenants, conditions, restrictions and casements for all or a portion of the properties within Lake Nona South lying generally west of the Interchange as determined by LNLC. "Material Adverse Effect" shall mean (a) as of the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or Otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of Operations, which change would reasonably be expected to substantially impair Bumham's ability to conduct its core operations or to fulfill its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement, and (b) after the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to prevent Burnham from fulfilling its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement. 1 "Measurement Period" shall mean the period during which the number of Jobs and the moving two -year average of the wages paid by Burnham for all Jobs created by Burnham are measured, which period shall commence July 1, 2009 and shall end upon the last day of the Term of the Ground Lease. The Measurement Period may be extended as provided in Part XH of the Grant Agreement. "Memorandum of Funding Parties A rg_eement" shall mean the memorandum of the Funding Parties Agreement to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida. "Memorandum of Ground Lease" shall mean the memorandum of the Ground. Lease to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida promptly after the Ground Lease is executed "Minimum ftugirements" shall mean the minimum programmatic requirements for the Permanent Facilities, set forth on Exlulbtt "B." " tion" shall mean the option to purchase the Permanent Facilities Site granted by County to Burnham pursuant to the terms of the Ground Lease. "OTTED Agreement" shall mean the Innovation Incentive Funding Agreement between the State of Florida's Office of Tourism, Trade and Economic Development and Burnham which 11. 41 ?SZV DW 4 =FAW 492 AM I 9B controls the obligations of Burnham and OTTED with regard to incentive grants awarded under the Enabling Statute, as it may be amended in accordance with its terms; provided that no such amendment shall affect any of the agreements with the Funding Parties unless the Funding Parties consent thereto. "Parties" shall mean the parties to a particular agreement. 'W' shall mean that certain Ordinance Establishing the Zoning Classification as PD, Planned Development, and C, Conservation, Districts on the Lake Nona Development Regional Impact as Adopted by City Council dated October 25, 2004 and November 11, 2004 at Official Records Book 7699, Page 3056, of the Public Records of Orange County, Florida, as amended by that certain amendment dated July 25, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3662, of the Public Records of Orange County, Florida; as amended from time to time. "PD Amendment" shall mean any amendment to the PD submitted to the City for review and approval, whether before or after the date hereof, provided, however, that LNLC shall not (and shall cause its affiliates not to) seek or approve of a PD Amendment which would preclude operation of the Permanent Facilities or development of the Burnham Campus for the Permissible Use, "Permanent Facilities" shall mean (i) the approximately one hundred seventy -five thousand (175,000) square feet of Gross Floor Area in one or more buildings on the Permanent Facilities Site for the use and benefit of Burnham employees and guests in accordance with the Permissible Use, which is to be constructed pursuant to the Grant Agreement and the Development - Obligation Agreement; provided, however that Burnham may reduce the Cross Floor Area of the Permanent Facilities by an amount not to exceed ten percent (10 %) without the unanimous approval of the Funding Parties; and (ii) all adjacent surface and subsurface infrastructure and utilities and all related on -site improvements, including parking, driveways, landscaping, hardscaping, signage and irrigation, but specifically excluding surface water runoff /drainageketendon/detention facilities. "Permanent Facilities Comglr on lute" shall mean the date that is thirty -six (36) months from the Effective Date of the Grant Agreement or such other date as may be agreed to in writing by the Funding Parties and Burnham. Term—anent Facilities Site" shall mean the approximately 12 acre parcel of real property within the Burnham Campus upon which the Permanent Facilities shall be looated, as shown on Exhibit "C" to the Grant Agreement. "Permissible Use" shall mean, subject to completion of the Permanent Facilities, uses permitted on the Burnham Campus, which shall be limited to the following and shall be subject to compliance with all applicable laws: (a) medical, life science and clinical research and development, (b) light manufacturing in the life sciences or medical field, including diagnostics, devices, pharmaceuticals and reagents, (c) undergraduate, graduate and post- graduate education, including classrooms and lecture halls, (d) research facilities related to a medical hospital, (e) 12. 317WM$ OHJ *4 a2VM $= AM 9B ancillary related research - oriented healthcare and life science uses, and administrative uses related to the foregoing, and (f) support services for the foregoing which may include, but is not limited to, a cafeteria/restaurant, child day care center and fitttess facility for use by Burnham's personnel and employees and Burnham's sublessees' personnel and employees. ` ermits" shall 'mean all building, development and environmental permits necessary to the proper execution and completion of the Work which are legally required, including, without limitation, SPMP and site plan submissions, general building permits, street access pmnits, easements and all other permits, licenses, inspections, fees and the like required to complete the Permanent Facilities, unless specifically stated otherwise in the Construction Contract Documents, sewer (sanitary and storm), water, electrical power, telephone, data, cable television and gas tap fees regarding utility connections and extensions, utility meter installation and hook-up charges, and other charges assessed by the local entities having jurisdiction, permits for. elevator, mecha ri* plumbing, electrical and all other trade work; and all partial and final certificates of occupancy and other permits necessary to permit the lawful occupancy of the Permanent Facilities by Burnham. "Per pitted Fxggptions' shall have the meaning given such term in the Gift Agreement (Permanent Facilities) or Gift Agreement (Surplus Land), as applicable. "Person" shall mean an individual, estate, trust, partnership, limited liability company, corporation, Governmental Authority or other legal entity, " Erirnary Oyerations" shall mean the location in the State of Florida at which no less than eighty percent (80 %) of Burnham's Florida employees are employed. " Prime Construction Contract" shall mean a Construction Contract with the -Prime Contractor that is, in the case of the Pernanent Facilities, consistent with the terms and conditions of the Development Obligation Agreement. "Prime Contractor" shall mean either (i) a construction manager operating "at risk" for the completion of the Work or (ii) a general contractor operating with a Stipulated Sum contract for the completion of the Work; either of which, in the case of the Permanent Facilities, will be engaged by the Project Manager to be responsible for constructing and/or managing the construction of the Permanent Facilities pursuant to the Prime Consftetion Contract. The Prime Contractor for the Permanent Facilities shall oversee and be responsible for all Contractors performing Work on the Permanent Facilities Site, except, at the option of the Project Manager, the Contractor(s) responsible for that portion of the Work related to earthwork, stormwater ponds and master drainage systems, master utilities, landscape and hardscape and equipment famished by the Proj ect Manager. "Prime Rate" shall mean the then- existing prime rate set forth in the Wall Street Journal or comparable paper of national circulation. `fir iect Cost' shall mean all actual costs resulting from (a) amounts incurred with respect to the Design Professionals pursuant to the Design Contracts; (b) amounts incurred with respect to the Contractors pursuant to the Construction Contracts; (c) amounts incurred with respect to Vendors and Consultants pursuant to their contracts; (d) amounts incurred with respect to Architects pursuant 13. oMMEMMMM?9A SINN= I - 99 to their contracts; (e) fees and expenses for construction permits and approvals, Impact Fees, connection and capacity charges and the like; and (f) other costs or expenses (including attorneys' fees and expenses incurred after the Effective 'Date of the Orant Agreement), except for such fees and expenses as may be incurred by Burnham in any claim, lawsuit or proceeding against the Funding Parties, or any proceeding asserting a violation of any Federal, State or Local statue, law, code, ordinance, rule or regulation, or any proceeding relating to any fines or penalties assessed against Burnham in connection with the construction of the Permanent Facilities, or any fees attributable to any lobbying efforts), provided such costs are directly attributable to materials and services necessary for planning, design, permitting, and construction of the Temporary Facilities or the Permanent Facilities or F&E installed within the Temporary Facilities or the Permanent Facilities. In addition, after Final Completion and after the laboratory facilities within the Permanent Facilities are at 104% completion based upon capacity for the 303 Jobs contemplated under the Business Plan and required under the Grant Agreement, if there are Available Funds remaining in the Account, "Project Cost" shall also mean actual costs for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities); and if there are Available Funds remaining in the Account after payment of such CDD capital assessments for the Permanent Facilities Site, actual costs for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). Notwithstanding the foregoing, `Project Cost" shall not include costs or expenses for items or services that are not necessary for the planning, design, construction or permitting of the Temporary Facilities or Permanent Facilities or for payment of CDD, capital assessments in accordance with the immediately preceding sentence, including without limitation entertainment, alcohol, travel or per than beyond customary standards, and luxury accommodations. Project Costs shall be reimbursable by Draw Requests. "Project Engineer" shall mean the engineer retained by Burnham or by the Project Manager from time to time, in the case of the Permanent Facilities, in accordance with the Development Obligation Agreement, for the performance of the Work. "Project Manager" shall mean LNBC or any other project manager retained by Burnham to manage the design and construction of the Permanent Facilities pursuant to the Development Obligation Agreement. zovid " shall mean any Person providing Communications Services on or to the Burnham Campus or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or utilizing (e.g., leasing) the any of the properties within the Lake Nona DRI, or any portion thereof or any buildings or portions of buildings thereon, which Person may be, or may subsequently become, affiliated with LNLC. T— unchlist Items" &W mean those minor items which are at variance with the Construction Contract Documents and the Drawings and Specifications as of the Substantial Completion Date and which for achieving full completion in the aggregate will not exceed the Punchlist Period except as otherwise specifically provided in the Development Obligation Agreement, and which do not materially interfere with the use and occupancy of any part of the Pernment Facilities for its intended use. Prior to commencement of the Punchlist Period, the Architect and the Project 14. ORLIM -4 ESnUM79A 317MM S DFU *4 22T/2pp7 a= AM Manager shall prepare a written description of the form and scope of all Punchiist Items and a schedule setting forth the estimated time and value for completion of the Punchlist items. "Punchlist Period" shall mean the period of time from the day after the Substantial Completion Date for each improvement to the date on which all puncMst Items are resolved to the reasonable satisfaction of the Project Manager and Burnham, which period, shall not exceed sixty (60) days, except that the Project Manager shall not be required to cause the completion within such time any items that are not reasonably capable of such completion (but shall be required, diligently to use commercially reasonable efforts to cause the applicable Contractor or Consultant to commence and continue with such work as necessary to finish such items as soon as reasonably practicable), so long as the fact of the incompletion of such items does not materially interfere with the use and occupancy of any material part of the Permanent Facilities for its intended use. During the Punchlist Period, Burnham agrees to grant the Project Manager, the Contractors and the Consultants reasonable access to the Permanent Facilities Site in order to accomplish completion of the Punchlist Items and perform any other services then required under the Development Obligation Agreement. ' oort Period" means the applicable reporting period as described on the schedule attached hereto as Exhibit IIC." "�e�,search Pte" or "Resgarch Park at Lake Nona" shall mean the research park to be developed by LNLC and located upon up to one hundmd fifty (150) acres, inclusive of the Burnham Campus; provided, the ultimate size of and uses within the Research Park (except for the uses on the Burnham Campus which shall be the Permissible Uses) will be detemained by LNLC based upon market demand. " Retainage' shall be applicable to all Construction Contracts and shall mean (i) ten percent (10%) of the total amount of any Construction Contract until such time as Fifty Percent (50 %) of the Work under said Construction Contract is complete, (ii) five percent (5 %) of the total amount of any Construction Contract after fifty percent (50 %) of the Work is complete until Substantial Completion of the Work; and (iii) two percent (2 %) of the total amount of any Construction Contract after the Work has achieved Substantial Completion; provided however, there shall be no retainage for amounts due to Vendors. Upon final completion of the Temporary Facilities or Final Completion, any remaining Retainage shall be distributed as provided in the Construction Contract and the Escrow Agreement. "Scope of World" shall mean the construction of the Permanent Facilities: (i) substantially in accordance with the Construction Contract Documents, and (ii) consistent with the approved SPMP. "SBCUjN Agreement" shall mean Exhibit "5" to the OTTED Agreement. "Space Program" shall have the meaning given such term in the Development Obligation Agreement. "Special Conditions" shall mean the conditions set forth on Attachment B to the Development Obligation Agreement. 15. 0RLiVAAU5ffnft"nA 31MV0UB DHd"V2= W /:34 AU 9B!t f --r i r* 11 Mal "Spend Down Schedules" shall mean the schedules for the timing of the use of the Grant Funds as described in the Grant Agreement, which schedules will be prepared by Burnham, with assistance from the Project Manager in .accordance-with the terms of the Development Obligation Agreement in the case of the Permanent Facilities. "&W' ' shall mean the final, non - appealable Specific Parcel Master Plan for the development of any portion of the Burnham Campus, as approved by the City. "Stipulated Sum" shall mean a stipulated or fixed price, or guaranteed maximum price, for Project Costs under the Construction Contracts or purchase orders. The Stipulated Sum includes all amounts in Draw Zero for the Permanent Facilities. "Su contractor" shall mean any subcontractor in privity with any Contractor or any other Subcontractor, at any tier. "Sublpaing_ Resstric 'ons" shall mean that subleasing, and for -profit activities in the Permanent Facilities trust be consistent with the Permissible Use and have the prior written approval of the Funding Parties, which consent shall not be unreasonably withheld, and, commencing on the fifth (5`) anniversary of the issuance of a Certificate of Occupancy for the Permanent Facilities, must not comprise more than twenty -five percent (25 %) of the use within the Permanent Facilities based upon the total square footage of the Permanent Facilities as of the date of measurement. The foregoing limitation shall not begin until the fifth (P) anniversary of the issuance of a Certificate of Occupancy for the Permanent Facilities in an effort to allow Burnham the time and opportunity to staff and occupy the Permanent Facilities and shall only apply during the term of the (around Lease; provided, the foregoing shall not serve in any way to limit or terminate the obligation to comply with the Permissible Use which is intended to and shall run with title to the Permanent Facilities Site. "Substantial Completion" shall mean the level of completion of an improvement wherein such improvement has no material defects or deviations from the approved plans therefor and can be operated for its intended use as certified by the Project Engineer, and such improvement has received either a permanent or temporary certificate of occupancy such that Burnham may take possession of and occupy the improvement for its intended use or a certificate of completion or its equivalent from the appropriate governmental entity, as applicable, 'Urplus Land" shall mean the Burnham Campus, other than the Permanent Facilities Site. 'Tgget Contraction Colt" shall mean the Grant Funds (after deducting from the Grant Funds all Project Costs expended, committed or budgeted for the Temporary Facilities) less the Contingency and less the Laboratory Allowance as deteYnined at the conclusion of the Preliminary Design Phase in accordance with the Development Obligation Agreement; provided, such amount may be adjusted following the Preliminary Design Phase in accordance with the teams of the Development Obligation Agreement. '*Temporary Facilities" means the temporary facilities for Burnham's Florida operations to be constructed pursuant to a lease and affiliated agreements between Burnham and lessor 16. OW WeALEST=547ew 317!?IO= OW Of t ZnW7 ens AM Independent Blood and Tissue Services of Florida, Inc. at 8669 Commodity Circle, Orlando, Florida 32819 (approximately 14,000 square feet) and warehouse space at 8663 Commodity Circle, Orlando, Florida 32819 (approximately 300 square feet) pursuant to the terms and conditions of the Grant Agreement, or such other site in Orange County, Florida as reasonably agreed by Burnham and the Funding Parties. "Tier 1 Funds" shall mean the initial tier of the Grant Funds in the total amount of $70,000,000, to be funded pursuant to the terms of the Grant Agreement, of which $7,600,000 shall be contributed by LNLC (10.9 %), $29,700,000 shall be contributed by City (42A%) and . $32,700,000 shall be contributed by County (463%). "Tier 2 Funds" shall mean the second tier of the Grant Funds in the total amount of $6,000,000 to be funded pursuant to the terms of the Grant Agreement, of which $3,000,000 shall be contributed by City (50 %) and $3,000,000 shall be contributed by County (50 %). 'Tier 3 Funds" shall mean the third and final tier of the Grant Funds to be funded pursuant to the terms of the Grant Agreement, of which $5,000,000 shall be contributed by County (100 %). 1.144 .Qrtggon JmUW Fee Credits" shall mean any transportation impact fee credits that may be generated from or in connection with the development of the Burnham Campus or the Lake Nona DRI. ' TdCs' shall mean the average daily trips in accordance with the Development Order then in effect, as the same may be amended from time to time. "Vendor" shall mean any vendor of constriction materials, including but not limited to fixtures and equipment, with which the Project Manager, Burnham or any Contractor has a direct contract for materials, fixtures or equipment to be used in the construction of the Temporary Facilities or Permanent Facilities. "Waivers and Releases" shall mean the following items from the Vendors, Consultants, Design Professionals and Contractors for which payment is requested, as the case may be: (a) fully executed partial waivers and releases of claims in the amount of the immediately prior payment made by the Funding Parties (through the Escrow Agent) to Burnham and (b) conditional waivers for the payment amounts contained in the aturent Draw Request, in each case, for the Vendors, Consultants, Design Professional or Contractor, excepting any claims that may remain in dispute. "Warrtnnly Period!' shall mean the period of time during which the Contractor's warranty is in effect under the Construction Contract Documents, ork" shall mean all obligations, duties, and responsibilities assigned to, or undertaken by, a Contractor pursuant to the Construction Contracts, required to complete construction within the Temporary Facilities or to complete construction of the Permanent Facilities in accordance with the Construction Contract Documents. 17. OFUMMEWWO470A 3176 =owdg2rn=?assnM well woo I � 98 Burnham Institute for Medical Research BUSINESS PLAN FOR EXPANSION to ORLANDO FLORIDA October 2006 1 I EXECUTIVE SUMMARY 1.1 Overview 2 MISSION OF BURNHAM INSTITUTE FOR MEDICAL RESEARCH 2.1 Background on Burnham Institute for Medical Research 2.2 Research Centers 3 THE STATE OF FLORIDA 4 ACTION PLAN 4.1 Negotiate enabling agreements with the State of Florida 41 Negotiate an agreement with the State Board of Administration 4.3 Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square foot state-of- -the -art facility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for S15MM in local philanthropic support for BIMR e) commitment for $IOMM in funding from the University of Florida 1) commitment for S271V1M in funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORH 4.4 Develop key infrastructure for Burnham Florida 4.5 Identify key senior appointments 4.6 Implement a Collaboration Program 4.7 Implement a Graduate Program 5 ORGANIZATIONAL PLAN 5.1 Scientific Staff 5.2 Administrative Staff N 4 i 4 i 4 4 j 5 6 i 6 6 6 7 i 7 i h 7 7 7 f 7 ` 7 i i 7 r 7 i j 7 7 j 7 t 8 8 j 8 9 6 INFRASTRUCTURE DEVELOPMENT 10 6.1 Facilities 10 6.2 Capital Equipment 10 6.3 Construction of Permanent Campus 10 7 INITIAL BUDGET 12 7.1 Statement of Activities (in 50001s) 12 * The total amount contributed by State will be $155,272,000 any variation in the budget summaries is the result of rounding 12 7.2 Balance Sheet (in 00016) 13 7.3 Summary of Cash Flows (in 0001s) 14 7A Revenue Assumptions 15 7.5 Expense Assumptions 16 7.6 Major Capital Expenditures - Stub Period and Year 1 17 7.7 Use of Florida Suppliers 17 8 RECRUITING 17 8.1 Recruitment Process 17 8.2 Hiring Schedule 18 3 9 B I EXECUTIVE SUMMARY 1,1 Overview The Board of Trustees and Executive Management team at Burnham Institute for Medical Research ( "BIMR ") view the expansion of our research efforts to a Florida campus as a unique opportunity for the State of Florida ("Florida ") and BIMR. The Orlando, Florida site will be a fully integrated part of BIMR both operationally and culturally. We will take this opportunity, and the resources that it provides, to recruit world-class scientists to work with us In the fields of cancer, infectious and Inflammatory disease and neuroscienoes and aging. In addition this expansion affords us the opportunity to launch an additional research program in the area of diabetes and obesity. We also plan to develop three technology cores that will enable the transition of our scientific discoveries into the clinic. Specifically, the Orlando campus will have cores In pharmacology, in vitro and in vivo toxicology, chemistry, library screening and In vivo Imaging, Our vision Is that a bicoastal Burnham Institute for Medical Research will be Internationally recognized and be to Orlando what University of Califomle at San Diego was to La Jolla, the catalyst for the creation of a vibrant biotechnology industry. 2 MISSION OF BURNHAM INSTITUTE for MEDICAL RESEARCH Our mission of BIMR Is to conduct world -Gass collaborative research to cure human disease, improve quality of life, and thus create a legacy for our employees, partners, donors and community. We conduct basic biomedical research and our philosophy is grounded In the recognition that most breakthroughs in fighting human disease come from basic scientific investigations.. Moreover, our emphasis on basic research, as opposed to clinically applied research, means that our discoveries often reveal fundamental concepts and principles of cell biology that have broad relevance in a number of diseases, The institute is a 501(c)3 non -profit corporation, formerly the La Jolla Cancer Research Foundation, with an annual budget of approximately $90 million. Of the 725+ employees at the Institute, more than 1100 are scientists, and over 200 of those are Postdoctoral Fellows. Currently BIMR Institute has 71 faculty members. The outstanding quality of our faculty allows them to very successfully compete for research funding from various government agencies, particularly the National Institutes of Health (NiH). Federal grants make up about 80% of our operating budget. Other important sources of funding include private foundations, revenue from technology licensing, and philanthropy. Our research activities take place In nine buildings geographically located in the heart of San Diego's biomedical research community on Torrey Pines Research Mesa. Within a two -mite radius of our campus, our scientists enjoy collegial access to neighboring institutes, including Salk institute for Biological Studies, The Scripps Research Institute, University of California at San Diego, and San Diego's thriving biotechnology community, the world's fastest growing biotechnology community. 2.1 Background on Burnham Institute for Medical Research Burnham institute for Medical Research celebrates Its 301i anniversary this year. Founded in La Jolla, California, as a non -profit medical research institute focused on cancer research, BIMR has grown to a 725 plus person effort, with an annual operating budget of approximately $80 million. Our mission at BIMR Is to reveal the fundamental molecular mechanisms of disease, and to use that knowledge to devise the proto -type therapies of tomorrow. This mission is undertaken through a highly collaborative style of research that merges the talents of biologists with chemists, biophysicists, engineers, and computer scientists, creating a symphony of scientific synergy that emphasizes team -based approaches for tackling the great unmet medical challenges of today. Our mantra is 'From Research, the Power to Cure.. 1 BIMR consistently ranks among the top 20 organizations for the Impact of our research publications, and Is among the top 0.044% organizations worldwide for citations received per publication, according to the Institute for SclontiFc Information. Though journal publications are our chief product, during our 30 year history, BIMR scientists have also contributed directly or indirectly at least 5 approved therapies and several diagnostio tests that are currently in use, saving and extending Ives; plus, another 9 innovative therapies are currently In clinical testing at over 50 medical centers around the world. Sumham Institute for Medical Research is an organization on the rise. Due to the extremely high quality of our scientific staff and our highly collaborative culture, BIMR has enjoyed 5 consecutive years of double - digit growth In its NIH grant base, at a time when NIH budgets have been Nat or in decline. BIMR currently ranks 7"' in the nation among all private research institutes in terms of NIH funding. NiH grents account typically for 80% of our annual operating budget. According to the Center for Advanced Research, BIMR is the most efficient private research institution In the nation, covering 90 -93% of its operating costs through competitive grants awarded to Its scientists. 2.2 Research Centers Research at BIMR Is organized into 3 disease- focused research centers, bolstered by 3 technology centers. The Cancer Research Center constitutes approximately half the effort. BIMR has been a member of the National Cancer Institute (`NCI ") designed Cancer Centers program for 27 years, in the category of 'basic science" cancer centers, The Cancer Research Center has also been designed by the NCI through special grants we receive as: (1) one of eight centers for cancer drug discovery; (2) one of four centers for cancer bloinformafics, (3) one of six centers for defining the molecular signatures of cancer for generating more powerful diagnostic test, In partnership with neighboring organizations including Sidney Kimmel Cancer Center, and (4) one of four centers for cancer blonanotechnology, also in partnership with neighboring organizations, Among the accomplishments to come from Burnham scientists for cancer are: (1) the laboratory technique known as the ELISA, which forms the basis for the PSA (Prostate Specific Antigen) test and many other clinical laboratory tests; (2) the enabling technology for the world's first blotech drug for cancer, EpogenTm, used to support blood cell production in patient undergoing cancer therapy; (3) one of the first vitamin -based drugs (Targretin'*) for cancer, that taps into natural biopathways for fighting cancer; and (4) the world's first DNA -based drug for cancer to successfully complete final Phase Ili clinical trials (decision on approval due this summer from FDA). The Dale E. Webb Center for Neurosclence & Ag/ng Research focuses on degenerative diseases associated with aging, particularly neurodegeneration (Alzheimer's; Parkinson's; AL% stroke, heart disease, and diabetes. Research In thls Center Is aimed at either protecting cells from age - associated loss, or replacing lost cells through stem cell technologies. Cell protection strategies to emerge from the laboratories of Burnham scientists Include: (i) Memandne (Namendeym), a cytoprotective drug approved for Alzheimer's disease and in testing for glaucoma and stroke (2) two drugs used to prevent stroke and heart attack by Inhibiting blot clot formation; and (3) 'a nerve repair therapy (NeuroguarttT" anticipated to gain FDA - approval this year. Through special grants awarded by the NIH, BiMR has been designated as one of four centers for devising new therapies for cardiovascular disease using b€onsinotechnology. With regards to cell replacement, BIMR was an early entrant into the field of stem cells and regenerative medicine, launching a research division dedicated to this exciting but young field of medical inquiry 9 years ago. Today, the stem cell effort at BIMR constitutes the activities of nearly 100 scientists, perhaps the largest In the nation. Through special grants awarded by NIH, BIMR has been designated as one of six national exploratory centers for human embryonic stem coil research, and one of five centers for training the nation's scientists how to work with human embryonic stem cell researoh. To establish a safe -haven for perforating research on all types of stem cells, we established in 2002 the Stem Cell Research tenter, which Includes the complete infrastructure for deriving new embryonic stem cell lines and making them available to the. general research community for regenerative medicine research. 9B The Infectious 6 InNammatory Disease Center studies infectious agents and the Immune system's mechanisms for defense. Research In this new Center at BIMR focuses both on devising new treatments for Incurable Infectious diseases, where the immune response falls to eradicate pathogens, and on investigations of autoimmune diseases (e.g. Rheumatoid Arthritis; Inflammatory Bowel Diseases; Lupus; Multiple Sclerosis) where the Immune response is excessive and turns on the padent's own tissues, discoveries to come from this Center include (a) elucidation of the genetic basis for familial susceptibility to juvenile diabetes and rheumatoid arthritis, finding a genetic difference In an Immunoregulatory gene and (b) determination of the 3D- structure of the Anthrax Toxin and generation of the world's most potent chemical inhibitors of Anthrax Toxin using NMR -based drug design, providing a rapid means of neutrailzing this agent of bioterrodsm. BIMR's technology centers include: (1) the Center for Chem /cal Gonom /cs, one of ten NIH- funded national centers for establishing high- throughput robotic systems for screening large Collections of chemicals and enabling rapid drug discovery; (2) the Center for Proteo"o Pathways, one of four NIH - funded national research resources devoted to developing innovative proteomfos technologies for discovering new blopathways and new targets for diagnostics and drug discovery; and (3) the Center for Computational Modeling, one of two national centers funded by NIH for devising innovative computer algorithms for predicting .the 3-dimensional structures of proteins and generating computational tools for molecular modeling, thus providing insights Into the functions of the genome and laying a foundation for drug discovery. 3 The State of Florida in an effort to promote, stimulate, develop and advance business prosperity and economic welfare of Florida and Its residents, the Florida Legislature appropriated $200 million of Innovation Funds (the "State Funding') to support the establishment of a biotechnology industry in Florida. The Institute has been granted $155,272,000 of the Innovation fund to be applied towards the operational coot needed to support the Orlando site until it becomes self sufficient in its tenth year of operation. The remainder of the required operational funds have been provided by a consortium consisting of Orange County, the City of Orlando, Lake Nona Land Company LLC, University of Florida, University of Central Florida, Florida Hospital, and Orlando.Regionai. Hospital, 4 Action Flan The following key steps will constitute a plan of action for the establishment of Burnham Florida: 4,1 Negotiate enabling agreements with the State of Florida An agreement to provide $155,272,000 million in operational funds that we will require over the first 10 years and which I details the performance based milestones that BIMR will need to most to access these operational funds has been negotiated with the State of Florida. 4.2 Negotiate an agreement with the State Board of Administration An agreement that provides the mechanism, structure, and strategy for investment of the State funds and their release to BIMR has been negotiated and executed with the State Board of Administration (SBA). �l 4,3 9B 5�ql Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square foot state -of- the -art facility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for $16MM in local philanthropic support for SIMR e) commitment for $10MM in funding from the Universlty of Florida f) commitment for $27MM in funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORH have jointly and severally been negotiated and executed with Orange County, City of Orlando and Lake Nona Land Company LLC, and the universities and hospitals listed above. 4.4 Develop key Infrastructure for Burnham Florida This will occur in two phases: Phase I will be to build out, approximately 14,000 square feet of temporary lab space In the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been executed.. We would hope to take up occupancy in this space in April of 2007. Phase II will be a completion of the permanent 175,000 square foot facility at the Lake Nona site In Orlando. We have engaged take None Land Company LLC as the project manager for the construction of the permanent facility and under a very aggressive timeline estimate that we could take up occupancy early in 2008 4.6 Identify key senior appointments individuals willework als aateam to build theta ientificdand adminlstratllve supportteamneeded to be successful in Florida. The COO and the VP Business Development have been designated by Awardee as the senior level points of contact for economic development activities related to Awardee,s Florida operations. 4.6 implement a Collaboration Program Burnham Orlando will present many valuable opportunities for collaborations with research efforts both within Florida and throughout the United States. Our goal Is to develop effective collaborations with the University of Florida, University of Central Florida, Florida Atlantic University, MD Anderson and other research groups wherever possible. This will Initially require information dissemination Including seminar programs that describe the growing oapabli ties of Bumham Florida to potential collaborators, as well as printed and web -based materials. 7 � Several modes of collaboration are predicted: • Peer -to -peer collaborations that is common throughout the academlo research model. • Access to the technological capabilities will enhance the outside institutions' chances of success and provide a competitive edge. • Investigators wish to collaborate on either preclinical or clinical development of a compound. These proposals will be examined based upon scientific merit. The goal is to leverage the joint effort to generate external funding to support the collaborative activities at both participating institutions. 4.7 Implement a Graduate Program The Burnham institute plays a very important role in the education of a large number of future scientists through the training of graduate students. Burnham Florida will establish a Ph.D. graduate program, In conjunction with our Florida University partners, based on the model developed and operated in La Jolla. This program is described below. The Institute started its graduate program in March 2006. The graduate program offers Ph.D, degree In two subject areas — integrated and Applied Biosdences and Molecular Medicine. Integrated and Applied Blosderms is uniquely structured to offer students research training in fundamental integration of biology, chemistry and physics while Molecular Medicine is an expansion of the joint program with UCSD. The Institute also partners with the University of California at San Diego in a joint graduate training program in molecular pathology that supports the training of Ph.D. students. Many Burnham faculty members have appointments and teach at UCSD and other university departments. Currently, approximately 30 graduate students obtain their primary scientific training at the Institute. Graduate students make a vital contribution to the Institute's research effort. In 2001.2002, approximately 32 publications from the Institute named graduate students as coauthors. -� We envision that we will partner in much the same way with UCF and /or OF to develop an exciting_ graduate program that will train the scientists of the future: 5 ORGANIZATIONAL PLAN Burnham Florida will be operated as an unincorporated division of BIMR All employees will be subject to BIMR's Administrative Policies and all Faculty will also be subject to BIMR's Bylaws, The Administrative Policies and Bylaws will be modified and implemented In view of Florida state and local law and regulations. Policy, programmatic and recruitment decisions will be made by the Executive Management Team. 5.1 Scientific Staff The Scientific Director will have responsibility for all scientific operations at the Florida campus. He/she will report directly to the President and CEO and will co- ordinate Florida campus activities with the La Jolla -based Center Directors including all Faculty level recruiting and hiring. The Scientific Staff recruitment will be initiated by the Scientific Director and wig follow Burnham guidelines for recruitment of faculty or Principal Investigators (Pi's). This Includes seminar presentations, visits with and assessment by Burnham La Jolla faculty, letters of recommendation, and a wrttten summary of their proposed research activities. It Is anticipated that heads of each of the discovery research programs and technology cores will be recruited Initially and that these department heads will report to the Scientific Director. The program heads will act as anchors for future hiring within each program or technology Core. Start -up packages for PI's may include research support for up to three years. It will be expected that all faculty will develop sufficient support after three years to sustain their Individual research programs, lwuding salaries, It is likely that the biomedical faculty will be recruited primarily from academia, whereas the technology and drug discovery faculty will be recruited from a mix of academic laboratories as well as biotechnology and pharmaceutical corporations. The Scientific Director and the Technology Center Director will both be faculty members. We are looking at the Scientific Director as being a luminary in his/her field and that will also direct a research laboratory. The Technology Center Director will be responsible for putting Into place all of core facilities. The first cores in the temporary facility will be chemistry, genomics, and in vitro pharmacology. Further research support staff will be recruited by senior fatuity as well as by statewide and nationwide searches. 5.2 Administrative Staff The Vice President, Operations will have responsibility for all administrative, facility and support operations on the Florida campus. He/She will report directly to the La Jolla based BIMR Executive VP and COO and will co- ordinate the Florida campus activities with the La Jolla based department heads. He/She will be responsible for hiring the following administrative personnel. The Vice President, Finance will have responsibility for accurate financial reporting, intemal controls, general accounting systems, accounts receivable/payable and payroll functions, as well as procurement (purchasing). In addition, the Vice President will be (a) the designed representative of Awardee to responsible for coordination with the Office of Supplier Diversity (b) responsible for establishing and Implementing a policy of making purchases from Florida vendors, to the extent it is cost effective and scientifically sound, and (c) 'responsible for ensuring that appropriate liability Insurance covering Bumham Florida hoe been obtained. We anticipate that the VP of Finance will be hired within 12 months of the Effective date of the Innovation Fund Agreement. The Director, Human Resources will be responsible for (a) Implementing BIMR employment policies, including BIMR's policies on equal opportunity employment, (b) implementing a program to conduct workforce recruitment activities at public and private colleges and universities and community colleges in Florida which request the participation of Bumham Florida, (c) establishing a policy of awarding preference in employment to residents of Florida for.adminlsbative and scientific support positions, and (d) implementing a system for ensuring use of the Intemet -based Job listing system of the Agency for Workforce Innovation in advertising employment opportunities. The Director, Office of Sponsored Programs will have responsibility for the pre- and post -award financial administration of grants and contracts from govemment and industry, In addition, the Director will be responsible for establishing and implementing systems for tracking and reporting on (a) the number and dollar value of research grants to beperfom*d by Bumham Florida that are obtained from the Federal Govemment or sources other than Florida, (b) the percentage of total research dollars received by BIMR from sources other than Florida which Is used to conduct research activities by BUR In Florida, (c) the total amount of funding received by BIMR from sources other than Florida, and (d) tracking and reporting annually the amount of non - Florida funding obtained by Bumham Florida for each full -time equivalent tenure -track faculty member employed at Bumham Florida. The Director, Business Development will have responsibility in conjunction with the Vice President of Business Development for establishing a technology out-licensing program, In addition, the Director in conJunctlon with the Vice President, Business Development will be responsible for (a) annually updating the Bumham Florida business plan, (b) patenting Inventions conceived or reduced to practice using Bumham Florida facilities (o) negotiation and execution of licensing agreements involving technology developed by Bumham Florida; (d) negotiation and execution collaborative agreements with colleges and universities In Florida and with research Institutions in Florida, and commercial third parties. �' No, The Vice President, External Relations will have responsiblitty In conjunction with the La Jolla based SIMR Executive Vice President of Development for planning and implementing BIMR'e philanthropic activities In Florida. The Director will be responsible for. marketing naming opportunities for charitable donations from'persons or entities involving, the right to have all or a portion of the Florida facility named for or In the memory of any person, living or dead, or for any entity. 6 INFRASTRUCTURE DEVELOPMENT 6.1 Facilities Development will occur in two phases. Phase I will be to build out, approximately 14,000 square feet of temporary lab space In the Florida Blood Center (FBC), Lease for the space at the temporary space at FBC has been executed. We would hope to take up occupancy In this space in April of 2007. Phase II will be a completion of the permanent 175,000 square foot'facility at the Lake Nona site in Orlando.. We have engaged Lake Nona Land Company LLC as the prcgect manager for the construction of the permanent facility and under a very aggressive timeline estimate that we could take up occupancy early In 2009 6.2 Capital Equipment Highly specialized capital equipment will be necessary to enable the research programs, The research programs will require capital support for molecular and cell biology, including biochemistry and tissue culture, as well as structural biology. This will require centrifuges, CO2 incubators, tissue culture hoods, refrigeration and freezer units and an advanced microscopy core Including confocal and digital deconvotution systems, an automated cell sorter, NMR and robotic protein crystallization systems. The technology cores each require specialized cutting edge equipment. The chemistry core will have a structurally and functionally diverse chemical library will be acquired to achieve a competitive starting point, likely purchased from commercial sources. Analytical chemistry facilities are essential both to confirming the chemical characterization of drug screen actives, as well as for the generation of pharmecokinetic data by the current state -of- the -art methodology, liquid chromatography mass - spectrometry (LC -MS), high -field NMR and supporting computational capabliities. Core systems pharmacology and animal physiology equipment will Include hematology and clinical chemistry auto - analyzers, HPLC and mess- speotrometry, ECG and respiratory physiology equipment The functional genomics core will provide robotic liquid handling Instrumentation and tissue culture facilities for genome -wide lentivirus -based sIRNA screening. In vivo imaging Instrumentation for rodent studies will include an MRI, and a bioluminescence and CT scanner. 6.3 Construction of Permanent Campus The permanent campus will be built on a 50 -acre campus located at Lake Nona, Orlando. The campus will comprise 175,000 square feet of laboratory and administrative space. The facility will be designed, and conWvcted by LNLC to enable the BIMR to apply for LEEDS certification The 60 acre campus will be master planned for the future growth of the Florida campus and will Include connections to the neighboring university campus and scientific communities. The eke will be master planned In a manner to achieve a high level of social interaction among the sclentifio staff. The laboratory building will be designed for a high degree of flexibility In both the structure and the laboratory support infrastructure. The mechanical, plumbing, piping, and electrical systems will be designed for the initial designed space, but also for easy access for maintenance and future modifications. 10 Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, microscopy, imaging, refrigeration farms, cold rooms, scientific staff offices, library, server and disk storage space, high speed and wireless telecommunications, meeting /seminar rooms, cafeteria, outreach activities and science support staff. The master plan and design for the permanent facilities will take approximately 3 months and the construction will take approximately one year to complete. 11 0 G M W m z r h n: W N ` e N Lo n0�� r V'QO } N l'7 v7 tic T v N T w r T T w 8 Trcam nTo� T T H yg P N W 9 � � M N a R `T�25�na3 6 d46 id M o to � r w c &I C4 in r N N ��9tD m cq r..7 i aQ M r �Ta a rTa � SAPR ld m T T T ^i S ,J hign 9� 89311 ! 8 N 1 9 6.� ^1. .w �C v N �J N N N m s N n � A � N N h a w m 1 H m r� wN C61 oil N WN W H H N O r3 N rr H N 1 w F1 H w w N K � r H � 0 v, r hY S Y! ~ r d v�n 1 I'9B M y I" Cl t 98. op 1 1 1 1• I t RJR 1((�� O�OI 'r O, 1 1 A� I� 1 1 carp _ app n7 { v�- CD v- O M d � Y' �- If W ISt 4. �M"nRRRC PI tDM 01 In �j0 Yf Ij N w I b8s� olio 1 1$ ��yyn.- bt?g °n a6 1 1 1 ? � M rl rrss M f1 Iq 01 04 of e M vl v� IHq a n�qR, Pi Yi iI? • • OD 11r� dap t�rpf RI M 1 1 1 Q V; ;q n 0 V' 1� If N H IV v; V p .1 11� N HIP �Np pQ q H, � ���'yyj �pQp� ��fpf Q eN^,NfD�Cq 1 1 1 lj I� err M pNY 131+1 jd �t la' N00 j NR 5 5 1� V " 0 LC 1p � o '8 N vi O ►yi A Pq }r� 1 1 W W - v V 1, X 1 If7 r-v-" w tw �pw w ft In i do N Q .-v c3 c a Irr4v � d N yy r 4 Ep (ppJ Rm01� "�` r� §N� •mod r N lun tq h`h • O I� ' N 1 'K • ooFlOf pp pVr�,' p�1 y I" Cl t c B ov f+ 3 6 ° tm C m2 0, w O � M N m W CL N W � W � O N � u2 ro O m N W o� ' `~ coo N —8 0. a. ro _ O 0 0 cf- y1 Ulf M $ m W N �� O A d >, O O N C4 m ro o c a fi a M �8 E N c o o� o g � ro m N O. a l� �� 5 W $ CL ar M�TL �L CL q� O co s EC $ �� C'. NW c ro 3m �m a E� cv) C N �t of ;S W) -4 • f 1 CD CD M ' d CL QOR N Q a Q W � C L a �a m� .5 ,6 c 45 .9.0 V g g� c. CJ 'I Jim �3 c° d oal �k I VI w C L N �- CML m : c LQ 03 a r a to na �a L� w4) �m CL I c N c C � m �M L Lo .0 N w0 w fi a E �+ m ts O L CL .� 0 As v� M . 4 JS 7 N C m g C � � • B. M 1 0-'/' � 2 IL k � � � � � � tz \� I% Al of R I_ �o $2 § � § _ Oƒ �& a �f #§ �Ik o~ § 2$2 §a%F. 21 $ $7 7 7 '2 to k' 2�k2 E § 2 E 2 � k & 2 2 � 7 § ƒ , § 2� §2 E% f� 2x a� I� §7 §/ k$ ■ k� §k t CL� k � � k2 $ =c $ � r $. _ < � e ■ ■ 2 3 e a ■ � �� N - -R5 "©V^ -® ; • ` [[I - "R§] Nov VN - e - ; A 22 VS~" ® ® § ®K§ " `- ®® & ,_ §R �� &E§ _ _ -M Van # k Novo— M__ ; 2 „ . � „ §� ¥ ��_■■ ® -� - ANN m „ §-`-g■ � , «,.. "., n „ § ��. ■# -.n_ t !. f R 7 � J $ q ■ 3 e a ■ � �� IV;-Iyen Exhibit `B" Minknum Requirements The laboratory buildings for the Permanent Facilities will be designed for a high degree of flexibility in both the structure and the laboratory support infrastructure. The large structural bays with heavy floor loading capabilities will allow for a great variety of laboratory space layouts as well as minimizing any vibration issues. The mechanical, plumbing, piping, and electrical system will be designed for the initial designed space, but also with an intent toward reasonable access for maintenance and future modifications. Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, miscroscopy, imaging, robotioWgh throughput screening, refrigeration farms, cold rooms, scientific staff offices, library, information technology and communications infrastructure, meeting /seminar rooms, cafeteria, outreach activities and science support staff. The Minimum Requirements shall include meeting the standards set forth in the definition of Permanent Facilities and compliance with any and all applicable conditions of permits and land approvals, all sufficient to obtain a CO. OROMMMMUMA $1782" MU c9l 2M007 8:52 AM ... � ... I a 9B Exhibit 440t Reporting Schedule i Report Periods: Stub period of date of initial disbursement of funds under the OYPED Agreement through June 30, 2007 Annual period of July 1, 2007 through June 30, 2008 i Annual period of July 1, 2008 through June 30, 2009 Annual period of July 1, 2009 through June 30, 2010 Annual period of July 1, 2010 through June 30, 2011 ++ Annual period of July 1, 2011 through June 30, 2012 i Annual period of July 1, 2012 through June 30, 2013 Annual period of July 1, 2013 through June 30, 2014 Annual period of July 1, 2014 through June 30, 2015 Annual period of July 1, 2015 through June 30, 2016 Annual (or stub) period of July 1, 2016 through the Term of the Ground Lease CftiVWAUWrA M.4 3176MM DHJ dtV 2r1 rAM 632 AM County Cash — Capital Philanthropy Drive Guarantee Sub -Total Pro -rata Share Percentage City Cash - Capital Philanthropy Drive Guarantee Sub -Total Pro-rata Share Percentage LNLC Cash - Capital Cash — Operating Property (50 Acres) Sub -Total Pro-rata Share Percentage Totals Cash - Capital Cash — Operating Philanthropy Drive Guarantee Property (50 Acres) Sub -Total Total Prorata Share Percentage ORLIIRE/ILHBTUM70.3 slner M VW m" 4r WW7 7A6 PM Exhibit "A" Proportionate Contribution $ 40,700,000 $ 5.000,000 $ 45,700,000 39.91% $ 32,700,000 $ 5.000.000 $ 37,700,000 32,93% $ 7,600,000 $10,000,000 $ 13,500,000 $ 31,100,000 27.16% $ 81,000,000 $10,000,000 $10,000,000 $ 13,50000 $ 114.500.000 100.00% 18 • i EXHIBIT "B" This instrument was prepared by and should be returned to: Deborah H, Johnson, L.L.C. Broad and Cassel Bank of America Center Post Office Box 4961 Orlando, Florida 32802 MEMORANDUM OF FUNDING PARTIES AGREEMENT THIS MEMORANDUM OF FUNDING PARTIES AGREEMENT (this "Memorandum") is made as of the day of March, 2007, by and among Orange County, Florida, a charter county and political subdivision of the State of Florida ("County"), *City of Orlando, a municipal corporation organized and existing under the Laws of the State of Florida ( "City "), and Lake Nona Land Company, LLC, a Florida limited liability company ( "LNLC') (County, City and 1L,NLC are referred to individually as a "Funding Party" and collectively as the "Funding Parties "). RECITALS A. The Funding Parties have entered into that certain Funding Parties Agreement of even date herewith (the "Funding Parties Agreement ") in order to set forth certain understandings and agreements among the Funding Parties relating to the Grant Agreement, the Ground Lease, the Gift Agreement (Permanent Facilities), Permanent Facilities Site, and the Permanent Facilities, as such terms are defined therein.. B. The Funding Parties now desire to execute this Memorandum, and to record the same among the Public Records of Orange County, Florida, to provide constructive notice of the Funding Parties' and LNLC's interest in the Permanent Facilities and the Permanent Facilities Site and the Proceeds therefrom, C. Any term not otherwise defined herein shall have the meaning ascribed to it under the Funding Parties Agreement, 19 0RLMEALt8i10ma % 311tZ1 A PWJ t" Z02N20071.0 PLI � 9 R, NOW THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Funding Parties' Rights with Respect to Ground Lease. In accordance with the terms of the Funding Parties Agreement, the Funding Parties have certain rights with respect to the enforcement and termination of the Ground Lease as more particularly set forth therein, 3: LNLC's Rights with Respect to the Permanent Farllities Site. In accordance with the terms of the Funding Parties Agreement, LNLC has certain rights with respect to a Right of Re -Entry. The method of exercise of the foregoing shall be governed pursuant to the terms of the Funding Parties Agreement. 4. Proceeds from Property. In accordance with , the terms of the Funding Parties Agreement, each of the Funding Parties shall receive its Proportionate Share, based upon its Proportionate Contribution, of all Proceeds received by County from the sale, lease or other transfer of all or any portion of the Permanent Facilities and/or the Permanent Facilities Site. 5. Counterpart Execution. This Memorandum may be executed in as many counterparts as may be required and it shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of such counterparts, All counterparts shall collectively constitute a single agreement. [SIGNATURES CONTAINED ON THE FOLLOWING PAGES1 20 oHuAWALESMOMOX 3176 OM DHJ c" 2/Z aw? va PM IN WITNESS WHEREOF, the Funding Parties have executed this Memorandum as of the day and year first above written. Signed, sealed and delivered in the presence of %NLC" LAKE NONA LAND COMTANY, LLC, a Florida limited liability company • f By: ' Print Name: James L. Zboril, President Print Name: STATE OF FLORIDA ) } COUNTY OF ORANGE ) The foregoing instrument was acknowledged before me this day of 2006, by James L. Zboril, as President of LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, on behalf of the company, He is personally known to me or has produced as identification. (Signature of Notary Public) (Typed name of Notary Public) Notary Public, State of Florida Commission No.: My Commission Expires: 21 ORLIIREALE8T88mme 8178=On DHJ dN P/YM01' TO PM ATTEST: Martha 0. Haynie, County Comptroller As Clerk of the Board of County Commissioners By: Deputy Clerk Date: 22 0WI ALEdT1OMM.6 31 M=026 MW *g ZMW*l 1A8 pM ORANGE COUNTY, FLORIDA By: Board of County Commissioners Date: Richard T. Crotty Orange County Mayor z N Rt ATTEST: CITY OF ORLANDO, a municipal corporation organized and existing under the laws of the State of Florida, By: Alma C. Brenner, City Clerk APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THJ3 CITY OF ORLANDO, FLORIDA, ONLY: . 2007 City Attorney oMIMA MA90m.a MGM" PW dN !12612007 ?A PM 23 By: Buddy Dyer, Mayor Date: r� , 1, i 98 fliibwtr T4u 21- Fib -2007 - MGM c$J 08-688 F \Pro/2oa\satal \sawv \."e\6wrdwn SN.e "o i 1 SKETCH OF DESCRIPTION NOT PLATIEO ' R=40.04'06" - 4Sn "E C./ N68103'41 "E 11.90' 8'24'18 A AP PT �� T gi g� �� w' \ NOT PLA M pR3p. pp. .. "' \� /�' BURNHAM SITE — SEE SHEET 2 FOR PHASE 1 DESCRIP77ON AND N07ES R -40.00' 4■104V9'31 " v N8376'02 "W 94.57' Pc L -72.61 ,\ �35W 41 AOlN7 OFOf LwWl EgNN1NG I � NOT PLATTED '1 south sE t/4 sec M4-Jb I 4-76 4 9EC11GN SECTION Soto-2 S! 6Y-o'M 14 22' NBa77'WV N8&4d 26 -24-JO R6 -24 -30 - • ` J6 31 -230 LEGEND h�4 POINT OF SEC 26� -24-30 SECAOVt, TOW". RANGE PC PONT of CURVATURE 0 300 800 COW ENCEAIENT PCc PONT OF COWOUHO CURVATURE PT 1r 1 4 NT NON- TANCENTANOENc 64i?' A OEirA ce SEARING Lmvm R RADIUS . 1 - 0 PREPARED FOR: LAKE NONA LAND COMPANY p2 PH S SCALE DATE OATS BY PTION DONALD W. MCINMSH ASSOCIATES, INC. DDNN LII AnATOM INO. can ND LOGO ENGINEERS PLANNERS SURVEYORS �""'"" 2200 PARK AVENUE NORTH, INTER PARK FL A 32780 (407) 644 -4068. 1 qy" cwtuoel. 5m RVW.AW and M"ppr ND7 VALD W*RW 7NL 1304AIME AND 7NE OMONAL IUJW K& OF A nWDA UCWW DRAWN BYtf2L- CHECKER BY:..S DhTE4;91J d9- DATE s0.[ I E SHEET 1 OF 2 fliibwtr T4u 21- Fib -2007 - MGM c$J 08-688 F \Pro/2oa\satal \sawv \."e\6wrdwn SN.e "o i 1 SKETCH OF DESCRIPTION DESCRIPTION, That part of Section 26, Township 24 South, Range 30 bast, Orange County, Florida, described as follows: Commence at the Southeast corner of the Southeast 1/4 of said Section 26; thence N89'17'38 "W along the South ilne of the Southeast 114 of sold Section 26 for a distance of 2685.48 feet to the Southwest comer of said Southeast 114 of sold Section 26; thence 58667'30 "W along the South line -Of the Southwest 114 of sold Section 26 for a distance of 1468.22 feet; thence NOO'00'00 "W, 478.12 feet; thence NOB 43'58 "E, 106.88 hat to the POINT OF BEGINNING; thence N01'41'57 "W, 577.73 feet to a point an a non — tangent curve concave Northerly having a radius of ,%530.00 feet and a chord bearing of N71 '55'18 "E; thence Easterly along the are of acid curvy through a central angle of 07'43'16' for a distance of 475.68 feet to the point of tangency, thence N68103'41", 11.90 feet to the point of curvature of a curve concave Southerly having a radius of 40.00 feet and a chord bearing of S772416 "E; thence Easterly along the arc of sold curve through a central angle of 69`04'06" for d distance of 48.22 feet to' the point of tangency, thence S4275213 "E, 684.67 feet to the point of curvature of a curve concave Westerly having o radius of 40.00 foot and a chord bearing of S09178'02 "N; thence Southerly along the arc of said curve through a central angle of 10410031" for a distance of 7261 feet to the point of compound curvature of a curve ooncove Northerly having o radius of 1420.00 feet and a chord bearing of S78'58'08"W,� thence Westedy along the ore of said curve through a central angle of 35'35'41" for a distance of 882.17 feet to the point of tongency.• thence N8396'02'W, 94,57 feet to the POINT OF BEGINNING. Containing 12.000 acres more or lose and being subject to any rights —of —way, restrictions and easements of record, SURVEYOR'S NOTES. — We Is not a vmwy — bearings bared an the South III* of the Southeast 114 or Section 26, Township 24 South, Range 3a Cart, Aronge Coun(A Florldo, being N8877136'It an assumed mondial. — Lands shore breon ore not obstrooted for dghtraf —way, soea ants, Ownership or other kwi nsnrde of record by this firm. — NO etis opktkn or obsdoct of matters affecting UUt or boundary to the wb�sot proprty r oN of odiahh fond owners have been provided. It Is ponVe !hers aw deeds of record u ad dead" or other instruments which ox* affect the bouhdol" or uw of the srnbject Wopdrt�s The lands desaribod breon may be #ZOO to sonments and restrictions not shown hereon. — This Sketch of Dwarotion doss not depict any sosanente of rsoord that moy be within or odi*lhg Me fond# desalbed hereon, LAKE NONA LAND COMPANY LAKE NOVA 50117H — AM MU STE (PHASE 1) DONALD W. MONTOSH ASSOCIATES, INC. ENGINEERS PLANNERS SURVEYORS 2200 PARK AVENUE NtXtTH, M�ANIER PAS FLQRKtA J2789 (407) a46 -4088 DRAWN BY:Pt_ I CHEWZ6 BY :.WL— I JOB N0, SCALE SHEET._ DAM 12,14/0 1 DATE: 12,A410e 281t11.0003 NA Op _ 2 rrw,tedi Thu 28—reb -2007 — 1007,w FVerojzoo6�sefar�Sdw g \bed�ew„hom Sltadwa SL11238desc CSo 06 -698 I -'- APPRO W W ORANGE COUNTY BOMP B 9 ;�W COUNTY COMMISSIONERG MAR 0 6 20Q7 Wd GIFT AGREEMENT By and Between LAKE NONA LAND COMPANY, LLC, a Florida limited liability company, as «MC,1 and ORANGE COUNTY, FLORIDA a political subdivision of the State of Florida as "County" BURNHAM INSTIT'UT'E FOR MEDICAL RESEARCH, a California nonprofit public benefit corporation, as "Burnham" OR41,FiE/11E81,940MA 31782MM DW jb 11122!200912:45 PM March , 2007 City CWq1 MOW. 3-J-67 4 I GWr Ak,GREEMENI' (Permanent Faeflittes) THIS GIFT AGREEMENT (this "Agreement') is made and entered into as of the day of March, 2007 by and between LANE NONA LAND COMPANY, LLC, a Florida limited liability company ( "LNLC "), BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a 501(c)(3) California nonprofit public benefit corporation ( "Burnham" ), and ORANGE COUNTY, FLORIDA, a charter county and political subdivision of the State of Florida (the "County'), with a limited joinder by LAKE NONA PROPERTY HOLDINGS, LLC, a Florida limited liability company ("LNPH') (County, LNLC and Burnham are referred to herein sometimes as a "Party" or the "Parties "). RECITALS WHEREAS, the Florida legislature has enacted the Enabling Statute to, among other things, appropriate funds to ensure that sufficient resources are available to allow the State of Florida to respond expeditiously to extraordinary economic opportunities and to complete effectively for high -value research and development and innovation business projects; and WHEREAS, Burnham, a 501(c)(3) corporation, is an internationally recognized research organization focused on basic biomedical research in the fields of cancer, neurosciences and aging, and infectious and inflammatory diseases; and WHEREAS, Burnham plans to establish and operate facilities at the Burnham Campus in the City of Orlando, Orange County, Florida; and WHEREAS, Burnham, LNLC, County and City have entered into the Grant Agreement pursuant to which the Funding Parties have agreed to provide grant fimding to Burnham to establish and create the Permanent Facilities on the Permanent Facilities Site; and WHEREAS, counties may expend funds to attract and retain business enterprises, and the use of public fiords toward the achievement of such economic development goals and encouraging Burnham to expand to Florida constitute public purposes; and WHEREAS, the County enters into this Agreement pursuant to its home -rule authority, statutory authority provided under Florida Statutes Chapter 125, including without limitation Section 125.045, and the Florida Industrial Development Financing Act, Part II, Chapter 159, Florida Statutes, which finds that economic development agreements of this nature achieve the public purpose of wise economic development and thereby implement the governmental purposes under the Constitution of Florida of providing for the health, safety and welfare of the people; and WHEREAS, the County hereby determines that the terms and conditions of this agreement comply with the criteria and requirements of the Florida Industrial Development Financing Act, Part H, Chapter 159, Florida Statutes; and 01R1.1M LLESTWU76A 1 9176ZVM DHJ dN 2J=007" W • r r WHEREAS, the .Parties acknowledge that the covenants and obligations being undertaken pursuant to this Agreement constitute a material inducement to the Funding Parties to provide the funding to encourage Burnham to expand its operations into the Burnham Campus, without which County and LNLC would not have agreed to enter into this Agreement or agreed to provide funding to Burnham to assist in its expansion into the Burnham Campus; and WHEREAS, the LNLC, LNPH and County acknowledge that the covenants and obligations being undertaken by them pursuant to this Agreement constitute a material inducement to Burnham to expand its operations into Orlando, without which Burnham would not have agreed to enter into the Grant Agreement or agreed to expand its operations into Orlando; and WHEREAS, County finds and declares that it is in the public interest to enter into this Agreement pursuant to the terms hereof, and WHEREAS, at the Closing, LNLC shall donate the Permanent Facilities Site to County, and County shall accept the donation of the Permanent Facilities Site from LNLC, and County shall concurrently lease the Permanent Facilities Site to Burnham for the establishment of the Permanent Facilities in accordance with the terms of the Ground Lease; and WHEREAS, LNLC and County desire now to express their agreement for and with respect to the Permanent Facilities Site as more particularly set forth hereinbelow. DEFTIIUMNS (a) "Contribution Amount." The cumulative value of each of the components comprising the Gift as described herein. (b) "Entitlements:' The rights under the Development Order to develop the Permanent Facilities on the Permanent Facilities Site, in accordance with all applicable regulations, as contemplated under the Development Order and this Agreement, together with the number of Trips associated therewith. (c) "Entry Road." The public road running from Lake Nona Boulevard to the entry point at -the east boundary of the Permanent Facilities Site, which point of entry shall be depicted on the Master Plan. (d) "Entry Road System." The Entry Road, together with related and adjacent utility and drainage facilities as described in Section 6(b)(i) herein, all as shown generally on Exhibit K(d)" attached hereto and incorporated herein by this reference, within the right -of -way area to be ultimately approved by, and dedicated to, the City as more particularly set forth in Section 6(b)(i) herein. (e) "Gift." The donation by LNLC to County of the Permanent Facilities Site, together with any permits, approvals and infrastructure improvements to the boundary of the Permanent Facilities Site paid for or provided by LNLC, the costs for which are not paid from the Grant Funds, all as provided in this Agreement; ORLIWEAMr U-M.6 $17ftUn DHJ dN 2= =7 (fl "Lake Nona Boulevard Entry Road" or "Lake Nona Boulevard." That portion of Lake Nona Boulevard lying within Lake Nona South, extending southerly from the Interchange to the Entry Road, which is or will be constructed by LNLC prior to Substantial Completion of the Permanent Facilities. (g) "Local Agreements." The Grant Agreement, the Ground Lease, the Development Obligation Agreement, the Gift Agreement (Surplus Land), and ttie Escrow Agreement. (h) "Master Plan." The master plan for the Permanent Facilities, a preliminary copy of which is attached hemto as Exhibit "(h)" and incorporated herein by this reference. The final Master Plan, inclusive of all infrastructure and utilities required to extend the Master Utility Infrastructure to the Permanent Facilities, shall be completed by LNLC, in cooperation with and with approval by Burnham, within one hundred twenty (120) days of the Effective Date, and shall thereafter be attached hereto and be made a part hereof. (i) ' "Master Utility h*astracture." The master utility infrastructure shall include the facilities constructed to the standards of the applicable provider with sufficient line capacity to provide potable water, waste water, and reclaimed water (for irrigation purposes only) for development and construction of the Permanent Facilities at the capacity established by the utility provider or by the City for issuing building permits and certificates of occupancy within the Permanent Facilities Site in accordance with the approved Master Plan, as applicable, within the Entry Road System right -of -way or utility easements adjacent thereto. The Master Utility Infrastructure shall also include facilities for electric power, natural gas, telephone services, communication services and other utility services with the applicable electric utility provider, telephone provider, communications provider or other utility provider to ensure that electric, telephone, communications and other utility facilities are installed to the Permanent Facilities Site in sufficient capacities for development and construction of the Permanent Facilities in accordance with the approved Master Plan, which may also have sufficient capacity to benefit additional portions of Lake Nona South. 0) "Permitted Assignee." Any entity which, directly or indirectly, controls, is controlled by, or is under common control with, Burnham, County or LNLC, as applicable. (k) `Permitted Exceptions." Those title matters set forth in the paragraph entitled - Tae, and "Conveyance of Title" hereinbelow and accepted by Burnham and County as set forth therein and those matters set forth on Exhibit "(k)" attached hereto and incorporated herein by this reference. (1) "Plans and Speeifications." The site plans (including, without limitation, hadscape, signs, fence locations, materials and colors), landscape plans and specifications (including, without limitation, irrigation, sod and trees), building plans and specifications (including, without limitation, floor plans, exterior elevations, exterior building materials, color samples and roof materials for the Permanent Facilities and the Permanent Facilities Site, and other documents or information required by the Lake Nona Manual to be provided to the Lake Nona Design Review Board, all as more particularly set forth in the Master Declaration. ow 1tReuesTUee+7e e 3 31702r M DHJ dhJ 1/17/2007"AM j ■ (m) "Property." The property generally depicted and described in Exhibit "(m)" attached hereto and incorporated herein by this reference, containing approximately 12 acres, more or less, subject to revision as set forth in Section 8 herein. (n) "Title Binder" or "Title Commltment." A title insurance commitment issued by the Title Company committing the Title Company to issue the Title Policy to County upon recording of the deed to County, together with digital, electronic or hard copies of all exceptions referred to therein. The Title Binder will list as exceptions to title only the Permitted Exceptions and the Liens (defined below). (o) "Title Company." First American Title Insurance Company, a California corporation. County and Burnham acknowledge that it has been informed that the Closing Agent is an authorized agent for the Title Company. (p) "Tide Defect." Matters which either (i) adversely affea the marketability of title to the Permanent Facilities Site (to be determined by County in consultation with Burnham applying standards customary in the industry for determining marketability), or (ii) substantially, adversely affect the ability of Burnham to use the Permanent Facilities Site for the Permissible Use (to be determined by County in consultation with Burnham applying commercially reasonable standards), but specifically excluding the Permitted Exceptions and the Liens (defined below). For purposes of this Agreement, the term "Title Defect" will refer to one or more matters affecting title to the Permanent Facilities Site as the context requires, Any matter appearing in the Public Records solely because of actions or omissions of County in its proprietary capacity, or Burnham, or either such Party's agents or contractors, will not be deemed a Title Defect for purposes of this Agreement. For purposes of this Agreement, a "Title Defect" will not include any mortgages encumbering the Permanent Facilities Site or other monetary liens or encumbrances created by or through LNLC that LNLC will remove at Closing (the °`Liens'). It is specifically understood and agreed that LNLC will cause the removal, correction or deletion of (i) all standard exceptions set forth in the Title Commitment (subject to a survey reading), and (ii) any gap, overlap, boundary dispute, hiatus or encroachment identified on the Survey which off" the Permanent Facilities Site or any adjacent properties, and (iii) the Liens. At Closing, LNLC shall provide the Title Company with such affidavits or other documents as are necessary to enable the Title Company to delete the Liens and the matters set forth in items (i), (ii) and/or (iii) herein and the Title Company shall provide County a marked -up Title Commitment with a copy to Burnham. (q) `Title Policy." The ALTA Form `B" 1992 (10- 17 -92) owner's policy of title insurance to be issued by the Title Company upon recording of the deed to County. The Title Policy will be in the amount of $3,240,000.00 and will insure the title of the Permanent Facilities Site, subject only to the Permitted Exceptions, and other matters acceptable to County in consultation with Burnham. OR 1%ftEA.E8Ti6Q ?O,a . 4 3170Z"n DHJ dW 2M7"07 ec34 AM Im AGREEMENT NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, and intending to be legally bound hereby, the Parties agree as follows: 1. Recitals. The foregoing recitals are true and correct at the time of execution of this Agreement and are incorporated herein by reference. 2, Defhtitions. All capitalized terms used, but not otherwise defined, herein shall have the meaning set forth in ftcd-ulel attached hereto and incorporated herein by this reference. . 3. Agreement to Donate and Accept LNLC hereby agrees to irrevocably donate and convey the Permanent Facilities Site to County, and County hereby agrees to accept the Permanent Facilities Site from LNLC, upon the terms and subject to the conditions set forth in this Agreement and the Local Agreements, 4. Items Included in Connection with Donation of Permanent Facilities Site. For purposes of LNLC's tax filings, the Parties acknowledge and agree that the Coutn'bution Amount shall include property, infrastructure, overhead, expenses and/or services, which are not paid for by Grant Funds or paid by the Boggy Creek CDD or performed by the Master Association, in an amount reasonably determined by LNLC. S. inspection of Permanent Facilities Site. During the term of this Agreement: (a) LNLC agrees that County, Burnham and/or such Party's representatives or agents, upon �h reasonable prior written 'notice to LNLC in each instance, shall have the right to enter onto the Permanent Facilities Site, at any time prior to the commencement of construction thereon for purposes of performing surveys, soils borings, engineering, architectural, topographical, economic and any other work, studies or tests, at such Party's sole cost and expense, so long as such Party does not change the present character of the Permanent Facilities Site; and (b) LNLC agrees that Burnham and/or Burnham ' s representatives or agents, upon reasonable prior written notice to LNLC in each instance, shall have the right to enter onto the Permanent Facilities Site following commencement of construction, to perform any inspections allowed under the Local Agreements, or to review LNLC's compliance with the terms of this Agreement, provided, however, that such inspections shall not include any invasive testing or other studies which might interfere with the construction unless reasonably necessary for the purposes set forth in this subparagraph (b). Prior to entry upon the Property, Burnham shall provide LNLC with a liability insurance policy in the amount of $1,000,000 or more and with a company satisfactory to LNLC which names LNLC as an additional insured and which cannot be cancelled without thirty (30) days' prior written notice to LNLC. LNLC, at its election, may accompany County, Burnham and/or their representatives or agents, in connection with their entry upon the Permanent Facilities Site, County and Burnham each covenant and agree that if this transaction does not close for any reason (other than LNLC's default hereunder), they shall provide to LNLC, without any cost to LNLC, copies of all due diligence materials prepared by or for County or Burnham with regard to such Party's investigation of the Permanent Facilities Site, including, without l imitation, any and all contracts, reports, surveys, maps, plans, site plans, correspondence, applications, submittals and any and all other documentation in whatever format oMIMALEsTWU76.6 5 91767/0028 DW &4 21222007 6:34 AM �J (e.g., electronic, digital, or otherwise) with regard to the Permanent Facilities Site, and County and Burnham each shall assign and release to LNLC, without recourse or warranty or cost to County and/or Burnham, any and all rights of County or Burnham, as applicable, in and to all permits and approvals for the Permanent - Facilities Site, the work product produced in connection therewith, and all such due diligence materials. County and Burnham shall promptly pay or satisfy all invoices related to the services or materials provided in connection with each Party's respective investigation of the Permanent Facilities Site. The immediately preceding two sentences of this provision will survive any termination of this Agreement. 6. Development Matters. (a) Permitting Period. Commencing upon the Effective Date, LNLC shall diligently pursue the completion of all development permits and approvals and all engineering necessary to commence and complete LNLC's Obligations (defined below) hereunder in accordance with the milestone schedule attached hereto as Exhibit 116(a)" and made a part hereof, as'same may be amended from time to time by LNLC (the " MIIestone Schedule'l so long as the revised Milestone Schedule actually shows and can reasonably and practically result in LNLC's Obligations being completed on or before Substantial Completion of the Permanent Facilities (or such earlier completion date for any one of LNLC's Obligation as may be specified in Section 6(b) below). County and Burnham shall cooperate in good faith, diligently and timely with LNLC in its pursuit of all development permits and other approvals, as and when required, and otherwise in the completion of LNLC's Obligations in accordance with the Milestone Schedule. (b) LNLC. LNLC shall perform or cause to be performed the following obligations ( ILNLC's Obligations") in accordance with the Milestone Schedule (but in no event later than Substantial Completion of the Permanent Facilities) and shall provide written progress reports monthly to County and Burnham as to the status of LNLC's Obligations: (i) Entry Road System and Other Roads. (1) Entry Road System. LNLC, subject to reimbursement pursuant to Section 6(f), shall design, permit, construct, install or cause to be installed the Entry Road System to the east entry to the Permanent Facilities Site in accordance with the Master Plan and the time periods set forth in the Milestone Schedule. The Entry Road System shall be constructed in accordance with the applicable roadway construction standards of the City, and in accordance with the City's standard procedures shall be dedicated to the City as soon as possible after completion. The parties acknowledge that LNLC may convey the Entry Road System to the Boggy Creek CDD prior to it being dedicated to the City, but that the obligation in this Section shall not be satisfied until the Entry Road System is dedicated to and accepted by the City. LNLC shall provide all bonds/security for the Entry Road System required by the City for public roadways which shall be reimbursed to LNLC prorate with other benefited properties as a Project Cost. Acknowledging that the Entry Road System will not have been completed at the time of Closing and the enhanced value to the Permanent Facilities Site associated with the completion of same, and in order to facilitate the development of the 0RUMALM M"70A 6 91TGZW20 DW dto 2/22r 007 6:34 AM R ED Permanent Facilities and recognize such value, LNLC shall reserve, subject to County and Burnham's review and approval which shall not be withheld if such easements are either consistent with the Master Plan or otherwise do not materially and adversely affect the Permanent Facilities or the Permanent Facilities Site, the appropriate non - exclusive easements for access, utilities and drainage for the benefit of Lake Nona South, over, under and across the property comprising the Entry Road System and the property adjacent thereto, and LNLC shall reserve, or County shall grant to LNLC, in either case subject to Burnham's review and approval (provided, as long as the locations of same do not conflict with the Master Plan Burnham shall approve), temporary construction easements sufficient to allow LNLC to perform its obligations set forth herein, all consistent with the Master Plan and the SPMP and in a manner that will not materially and adversely interfere with the Permanent Facilities. County agrees to reasonably cooperate and join in the execution of all temporary easements, plats and instruments reasonably required as contemplated herein. (2) Other Roads. LNLC shall also complete, at its cost and without charge to County or Burnham through the Boggy Crook CDD (or other CDD) the following two items, which the Parties acknowledge are not located within or adjacent to the Burnham Campus: (a) the extension of Lake Nona Boulevard to its point of connection with the Entry Road System., which shall be a public right -of- way, and (b) the interchange (the "Road Improvements'l. The parties acknowledge that LNLC has not yet determined how it will satisfy the foregoing requirement, but that it is considering satisfying assessments, by prepayment or contribution of infrastructure, for the capital costs of the Road Improvements to the CDD in amounts sufficient to release the Permanent Facilities Site from any future �..:. assessments therefor and/or making all future assessments against the Permanent Facilities Site for the capital costs of Road Improvements as and when such assessments come due without benefit of repayment from the County or Burnham. LNLC shall keep County and Burnham informed as to how it intends to satisfy this requirement and provide County and Burnham with documentation evidencing LNLC's final determination with respect thereto. In addition, LNLC shall promptly provide County and Burnham with copies of the CDD's preliminary assessment methodology, assessment calculations, and notice of assessment proceedings for the Road Improvements. County and/or Burnham shall promptly provide LNLC with copies of any correspondence it receives from the CDD with regard to capital assessments for the Road Improvements. LNLC shall indemnify, defend and hold Burnham. and County harmless from and against any claims made by the Boggy Creek CDD (or other CDD) for any assessment and/or claim, including interest, fines and penalties, for or .in relation to CDD capital assessments for the Road Improvements. Notwithstanding anything to the contrary in Section 19(e) herein, County and Burnham shall have the right to pursue damages against LNLC in an amount equal to the assessments LNLC should have paid in connection with the foregoing obligation and indemnity, together with interest at the prevai ling statutory rate. The provisions of this subparagraph 6(b)(i)(2) shall survive closing and shall be incorporated into the Development Agreement. ow IMALES 6478.6 7 31TA?MS DHJ Of W2V2a07 Off AM ■ (ii) Master Utility Infrastructure, In connection with the construction of the Entry Road System, LNLC, subject to reimbursement pursuant to Section 6(f), shall design, permit, construct, install or cause to be installed the Master Utility Infrastructure. At the time of Closing and thereafter, County shall grant to LNLC and/or the appropriate utility provider (which shall include any Provider selected by LNLC in accordance with Section 6(h) herein), subject to Burdam's review and approval (provided, as long as the location of some do not conflict with the Master Plan Burnham shall approve), easements, in areas consistent with the SPMP and in a manner that will not materially and adversely interfero with the Permanent Facilities, sufficient to allow LNLC and/or the appropriate utility provider to perform its obligations or provide the services contemplated herein for the completion of the Master Utilities Infrastructure. (iii) Master Drainage System. LNLC, subject to reimbursement pursuant to Section 6.(f) (but only to the extent actually required for the Permanent Facilities Site and not the costs. of any oversizing), shall design, permit, construct, and install a fully functional master drainage system with appurtenant facilities for the Permanent Facilities Site ("Master Drainage Systewl� which shall be integrated into the master drainage system for Lake Nona South. The Master Drainage System may require the Permanent Facilities Site to accommodate storm water flowage (but not retention or detention unless requested by Bumham) from Lake Nona South through the Permanent Facilities Site (and may require the other portions of Lake Nona South to accommodate storm water flowage from the Permanent Facilities Site through other portions of Lake Nona South), in accordance with applicable permits and approvals and in a manner that is consistent with the Master Plan or otherwise does not materially and adversely affect the Permanent Facilities or the Permanent Facilities Site. Acknowledging that the Master Drainage System will not have been completed at the time of Closing and the enhanced value to the Permanent Facilities Site associated with the completion of same, and in order to facilitate the development of the Permanent Facilities and recognize such value, County agrees to cooperate with LNLC, in cooperation with Burnham, in connection with the design, permitting and construction of the Master Drainage System, which obligation shall continue following Closing. As necessary and in accordance with the foregoing, County shall grant to LNLC, subject to Burnham's review and approval (provided, as long as the location of same does not conflict with the Master Plan Burnham shall approve), easements, that are consistent with the Master Plan or as otherwise reasonably determined by LNLC not to materially and adversely interfere with the Permanent Facilities, sufficient to allow LNLC to perform its obligations set forth herein in order to complete the Master Drainage System and enhance the value of the Permanent Facilities Site. To the extent storm water drainage from the Permanent Facilities Site is to be held off -site, LNLC shall grant County, without cost, such easements as are required to provide sufficient capacity to accommodate all flowage and retention/detention related to the Permanent Facilities in the minimum amount required by applicable development permits. (iv) Mass Grading. LNLC, subject to reimbursement pursuant to Section 6.(f) or as a Project Cost, as applicable, shall be required to mass grade the Permanent Facilities Site in accordance with the mass grading standards as set forth in Exhibit 116(b)(1v)" attached hereto and incorporated herein by this reference, which shall include completion of LNLC's Obligations with respect to the Gopher Permit (as defined below). Acknowledging that the mass grading of the Permanent Facilities Site may not have been completed at the time of Closing and the enhanced value to the Permanent Facilities Site associated with the completion OROMALEB' W647l.0 8 3179=28 OHJ ay 2127M7 a:a AM Mrs io of same, and in order to facilitate the development of the Permanent Facilities and recognize . such value, County agrees to cooperate with LNLC, in cooperation with Burnham, in connection with the foregoing mass grading, which obligation shall continue following Closing. As necessary and in accordance with the foregoing, County shall grant to LNLC, subject to Burnham's review and approval (provided, as long as the location of same do not conflict with the Master Plan Burnham shall approve), temporary easements, that are consistent with the Master Plan or that otherwise do not materially and adversely affect the Permanent Facilities or the Permanent Facilities Site, sufficient to allow LNLC to perform its obligations set forth herein to complete the mass grading of the Permanent Facilities Site. (v) 100 Year Flood Plain/Compensatory Storage. If and to the extent any portion of the Permanent Facilities Site lies beneath the "100 Year Flood Plain" and any portion thereof is required to be filled in connection with the development of the Permanent Facilities, LNLC shall provide within Lake Nona South or other property within the Lake Nona Development owned by LNLC 'or its affiliates, subject to reimbursement as a Project Cost, any off -site compensating storage required by any applicable permitting agency. (vi) Gopher Tortoise Administration. LNLC shall be required to obtain any necessary gopher tortoise take and/or relocation permits from the Florida Fish and Wildlife Conservation Commission (the "Gopher Permit) that may be required in connection with the development of the Permanent Facilities Site, and shall perform all mitigation and other legal requirements required thereunder, all in accordance with the Gopher Permit. (vii) Wetlands. LNLC shall obtain any necessary permits for wetlands impacts on the Permanent Facilities Site. Notwithstanding the foregoing, the Parties " acknowledge that they believe that no impacts on wetlands will result from the development of . the Permanent Facilities. Further, LNLC represents and warrants that, as of the Effective Date, there are no wetlands on the Permanent Facilities Site claimed by either the Army Corps of Engineers or the South Florida Water Management District and that to its actual knowledge, there are no wetlands on the Permanent Facilities Site. LNLC shall at all times during performance of its obligations hereunder comply with the terms of the existing permits from both agencies for the Permanent Facilities Site, except where such failure of compliance would not have a material and adverse effect, and shall take no action which could be reasonably be foreseen to result in a change of wetland status for the Permanent Facilities Site. (viii) SPMP and Plat Approval. Commencing on the Effective Date, LNLC, subject to reimbursement as a Project Cost, shall diligently prepare, process and pursue approval of the SPMP and a plat for the Permanent Facilities Site both in accordance with the Master Plan. The Parties acknowledge that the Permanent Facilities Site will be conveyed to County and ground leased to Burnham prior to recording of the plat. In connection with the recording of the plat, LNLC, County and Burnham subject to reimbursement as a Project Cost, each agree to take such steps as are necessary to: (a) cause the recording of the plat, including by executing the final version thereof; and (b) correct minor deviations between the property conveyed to County at the closing hereunder and the lot created by the plat for the Permanent Facilities Site, including, but not limited to, conveying land subject to the terms herein as required to ensure that the County owns all of (but not more than) such platted lot. In order to facilitate the foregoing, LNLC shall promptly provide County and Burnham with drafts of the ORLIMALBSTU 47D.e 9 917aZ OON W W dhJ V=W7 3*4 AM tw ■ plat during the development process. After recording of the plat and completion of correctional items in accordance with the foregoing sentence, the legal description for the Permanent Facilities Site shall be, for all purposes hereunder and under the Local Agreements, by reference to the lot on the recorded plat. (ix) Off -Site Improvements. LNLC shall timely complete all obligations, including off-site obligations, under the Development Order (other than any site specific obligations relating to the Permanent Facilities which are not otherwise included within LNLC's Obligations) as and when required so as not to delay completion of the Permanent Facilities. To the extent that any of LNLC's Obligations are not completed as of the time of Closing, and are not otherwise being performed pursuant to the Grant Agreement and/or the Development Obligation Agreement, LNLC hereby agrees (i) to indemnify and hold County and Burnham harmless from any and all liability arising out of LNLC's performance or failure to perform LNLC's Obligations; and (ii) to perform all of LNLC's Obligations in accordance with the insurance and bonding requirements of the Grant Agreement. For any of the costs of LNLC's Obligations that are to be reimbursed as Project Costs, the parties agree that LNLC shall submit its request for payment of those costs to LNBC for inclusion in Draw Request(s) submitted pursuant to the procedures set forth in the Development Obligation Agreement and paid pursuant to the terms of the Grant Agreement. Any such submittal shall meet the requirements for a Draw Request as required in the Development Obligation Agreement. In no event shall any of LNLC's Obligations paid for as a Project Cost be included in any payment or credit to be received by LNLC or its affiliates from the Boggy Creek CDD. (x) Obligations under Other Agreements. Notwithstanding anything contained herein to the contrary, LNLC's Obligations are subject to: (i) the funding obligations of the County and the City under the Grant Agreement; (ii) LNLC's right to receive reimbursement for services performed hereunder; and (iii) that no event shall have occurred that would entitle the Funding Parties to terminate the Grant Agreement pursuant to Part 1X.B of the Grant Agreement. (xi) Assignment of Obligations. Notwithstanding anything contained herein to the contrary, LNLC shall have the unilateral right, but not the obligation, to assign any or all of LNLC's Obligations to the Master Association and/or the Boggy Creek CDD and/or another community development district; provided, that no material additional cost is charged to or incurred by Burnham or County as a result of such assignment, and provided that no delay in the completion of the Permanent Facilities results from such assignment; provided further, LNLC shall not be relieved of the obligations associated therewith until Substantial Completion of the particular element of LNLC's Obligations and receipt of the applicable certificate of completion with respect to the particular phase of the respective obligation has been achieved and the applicable improvements have been dedicated to and accepted by the City, the Boggy Creek CDD or any other applicable governmental entity as a result of such assignment. MLIWALEMWO476s 10 31782MM OHJ dhJ Zli =7 a:34 MI NO Survival. Notwithstanding any provision to the contrary herein, to the extent LNLC's Obligations shall not have been satisfied at Closing, said LNLC Obligations shall survive Closing hereunder until the earlier of acceptance by the applicable governmental authority of the specific component or Final Completion of the Permanent Facilities. . (c) Transport UM Impact Fee Credits. LNLC represents that none of LNLC's Obligations that are to be reimbursed as Project Costs will result in transportation impact fee credits. LNLC shall be entitled to any transportation impact fee credits resulting from any of LNLC's Obligations not reimbursed as a Project Cost. (d) Provision of Natural Gas Services. Acknowledging that the provision of natural gas services will be beneficial and necessary for the development of the Permanent Facilities Site and recognizing that it will bring value to the Permanent Facilities Site, County and Burnham acknowledge and agree that LNLC may enter in to an agreement with Tampa Electric Co. ("TECO ") or another natural gas service provider (the "Gas Provider"), upon commercially reasonable terms, pursuant to which all development withiii the Permanent Facilities Site and the Research Park may restricted from utilizing natural gas as an energy source other than through the Gas Provider. The provisions of this paragraph shall survive Closing hereunder and be incorporated into the Development Agreement. (e) Street N&W. County and Burnham acknowledge and agree that LNLC shall have the exclusive right to name all of the public streets ,adjoining or providing access to or from the Permanent Facilities Site, and LNLC agrees that Burnham, as a fund raising tool and with the prior consent of LNLC (not to be unreasonably withheld), shall have the right to name those streets providing internal connectivity within the Permanent Facilities Site. This obligation shall be included in the Development Agreement. The provisions of this paragraph shall survive Closing hereunder. (f) Community Development District. (i) Generally, The Boggy Creek CDD, which district is a Community Development District pursuant to the provisions of Chapter 190, Florida Statutes, was established for the purpose of planning, designing, financing, constructing, installing, operating, and/or maintaining certain infrastructure, including water management systems, transportation and roadway improvements, landscaping, drainage facilities, potable water and sanitary sewer facilities, wefland mitigation, recreation and other infrastructure improvements within or without the boundaries of the Boggy Creek CDD, and such other purposes as may be permitted in accordance with Chapter 190, all as same may be amended from time to time, with the right to levy assessments in accordance with Sections 190.021 and 190.022, Florida Statutes (whether collected by County as part of its tax roll by ordinance or by the Boggy Creek: CDD directly). Subject to the provisions of Section 6(f)(ii) and (iii) herein, all or any portion of LNLC's Obligations hereunder (including the design, engineering and construction activities included therein), as well as other infrastructure facilities within the Lake Nona Development, and the ongoing operation and maintenance of all such facilities constructed or to be constructed by or on behalf of LNLC, may be financed, constructed, acquired, owned, operated and maintained by the Boggy Creek CDD. The parties acknowledge that the Boggy Creek CDD will have the power to levy and collect assessments against any portion of the Permanent Facilities Site subject ORLIMALE87 "476.6 11 3176?/ M OW &I z*=07 6:34 AM woo to and in accordance with Chapters 170 and 190, Florida Statutes in order to pay the cost thereof (plus debt service, reserves and other costs related to obtaining the financing); provided, there shall be no corresponding power to apply or attach liens to any portion of the Permanent Facilities Site while County owns fee title. County hereby agrees to accept the foregoing CDD assessments and execute any documents reasonably required by the CDD to acknowledge such acceptance. In addition, any lien rights shall be on a par with, ad valorem taxes and assessments levied by the County, -the City or other governmental authority; provided, however, during County's ownership of the Permanent Facilities Site, the lien rights associated with such assessments shall not apply. Notwithstanding the foregoing, the parties acknowledge and agree that LNLC has assumed the obligations set forth in Section 6(b)(i)(2) and either Section 6(f)(ii) or Section 6(#)(iii). Subject to Section 6(b) herein, County and LNLC acknowledge and agree that the Boggy Creek CDD governing board may enter into agreements with LNLC to acquire infrastructure facilities and lands from LNLC based upon actual costs previously or subsequently funded by LNLC or appraised value in accordance with Chapter 190, Florida Statutes. County's foregoing agreement to accede to the imposition of CDD assessments is strictly conditioned upon (1) there being no lien power of the Boggy Creek CDD against the Permanent Facilities Site during the period of County's fee ownership, and (2) LNLC's prompt payment of any CDD capital assessment relating to the CIP, including any interest, fines or penalties relating thereto; nothing contained herein shall be construed as a waiver of County's right to object to the Boggy Creek CDD's statutory lien authority. LNLC shall notify the Boggy Creek CDD of all terms of this paragraph prior to the levy of any assessments. The provisions of this paragraph 6.(f)(i) shall survive Closing and shall be incorporated into the Development Agreement. (ii). CDD P.stimate. Burnham may desire to use Grant Funds to prepay CDD capital assessments for the Permanent Facilities Site. While recognizing that the CDD has not issued capital assessment bonds or made any current findings with regard to the anticipated amounts of future capital assessments, LNLC, as of the date hereof, has estimated that the improvements reasonably necessary to complete the project infmstnicture required within the Boggy Creek CDD district are contained in the assumed capital improvement program attached hereto as Exhibit "61 (ii)" and incorporated herein by this reference (the "CEP'). LNLC, as of the date hereof, has estimated that the construction funds reasonably necessary to complete CIP is approximately One Hundred Thirty Million and No /100 Dollars ($130,000,000.00) (the "Total CEP Estimate', of which approximately Forty-Two Million and No /100 Dollars ($42,000,000.00) is allocable to the Road Improvements, leaving an adjusted CIP estimate of approximately Eighty -Eight Million and No /100 Dollars ($88,000,000.00) (the "Adjusted CEP Estimate "). Based upon the Adjusted CIP Estimate, the present value of the future CDD capital assessments allocable to the Permanent Facilities Site, based upon acreage, is approximately One Million Six Hundred Seventy -Five Thousand Six Hundred Fifty -Six and No /100 dollars ($1,675,656.00) (the "CDD Lstimate "). Notwithstanding the foregoing estimates, the parties acknowledge and agree that any bond offering to finance these costs will be grossed up to allow for the cost of issuance and debt service. Burnham shall promptly provide LNLC and County with copies of any correspondence it receives from the CDD with regard to capital assessments on the Permanent Facilities Site. The provisions of this subparagraph shall survive Closing and shall be incorporated into the Development Agreement. Burnham and its Project Manager shall use their best efforts, to adjust the Budget to include the CDD Estimate. In the event that the Budget as approved pursuant to the Grant Agreement prior to the commencement of vertical construction on the Permanent Facilities Site includes the CDD Estimate, then LNLC agrees to Oi LIMALESTVW476.6 12 9176V=4 MW (4 4/4WWT 634 AM ko ensure that the Permanent Facilities Site shall not be assessed for any capital improvements by a t CDD based upon the CIP, by one of the following means: (a) negotiating with the applicable CDD to accept the CDD Estimate as a prepayment of capital assessments in exchange for a release of the Permanent Facilities Site from all future CDD capital assessments based upon the CIP; or (b) in the event that the foregoing negotiations are unsuccessful or include commercially unreasonable conditions as determined by LNLC, then the funds representing the CDD Estimate in the Budget shall be used for the completion of LNLC's Obligations that can be completed with Project Costs pursuant to Section 6(b) above in an amount not exceeding the CDD Estimate, and LNLC shall thereafter pay such CDD capital assessments against the Permanent Facilities Site as and when such 'assessments come due without benefit of repayment from the County or Burnham. LNLC shall keep County and Burnham informed as to which option. it will use and shall provide County, City and Burnham with documentation evidencing its final determination with respect thereto. County and/or Burnham shall promptly provide LNLC with copies of any correspondence it receives from the CDD with regard to capital assessments on the Permanent Facilities Site. In the event that LNLC is not able to obtain the release set forth in option (a) above and the Budget as approved pursuant to the Grant Agreement prior to the commmement of vertical construction on the Permanent Facilities Site includes the CDD Estimate, then LNLC shall indemnify, defend and hold Burnham and County harmless from and against any claims made by the Boggy Creek CDD (or other CDD) for any capital assessment and/or claim, including interest, fines and penalties, for or in relation to CDD capital assessments against the Permanent Facilities Site based upon the CIP. Notwithstanding anything to the contrary in Section 19(e) herein, County and Burnham shall have the right to pursue damages against LNLC in an amount equal to such capital assessments LNLC should have paid in connection with the foregoing obligation and indemnity, together with interest at the prevailing statutory rate. in the event that the Budget as approved pursuant to the Grant Agreement prior to the commencement of vertical construction on the Permanent Facilities Site does not include the CDD Estimate, LNLC shall have no obligation to indemnify any party from or against any claims made by the Boggy Creek CDD (or other CDD) for any capital assessment and/or claim, including interest, fines and penalties, for or in relation to CDD capital assessments against the Permanent Facilities Site. Additionally acid in any event, Burnham shall be solely responsible for any claims made by the Boggy Creek CDD (or other CDD) for any operation and maintenance assessment and/or claim, including. interest, fines and penalties, for or in relation to CDD operation and maintenance assessments against the Permanent Facilities Site. The provisions of this subparagraph 6(f)(ii) shall survive Closing and shall be incorporated into the Development Agreement. (iii) Loan. In the event that the Budget in place as of the start of vertical construction on the Permanent Facilities Site does not include the CDD Estimate, Burnham shall have the option of having LNLC finance all or a portion of its obligations for the CDD capital assessments; provided, Burnham must provide LNLC with written notice of its election to do so not less than thirty (30) days after Burnham receives the :first tax bill containing the initial CDD capital assessment for the Permanent Facilities Site (other than capital assessments for the Road Improvements) (`Burnham's CDD Election "). The initial closing of the Loan (as defined below) shall occur no later than ninety (90) days after LNLC's receipt of Burnham's CDD Election. Following delivery of Burnham's CDD Election, both Burnham and LNLC shall negotiate in good faith the terms of the loan documents so that the execution and funding thereunder can occur in a timely fashion in order for LNLC to make any required CDD capital DMIVWALEST%& e47e e 13 3178=28 DHJ dW 21=007 8:34 AM a, assessment for the Permanent Facilities Site prior to delinquency. County and/or Burnham shall promptly provide LNLC with copies of any correspondence it receives from the CDD with regard to capital assessments. Provided Burnham has duly elected to have LNLC finance all or any portion its obligations for the CDD assessments as provided herein, LNLC agrees to pay such CDD capital assessments based upon the'CIP as and when such assessments are due, which amounts shall be in the form of a loan to Burnham (the "Loan") on the terms more particularly set forth in this section. The Loan shall be evidenced by a promissory note, a first priority mortgage. and security agreement against the Surplus Land (subject only to the Permitted Exceptions under the Gift Agreement (Surplus Land) and other matters approved by LNLC), to be recorded at the time of the closing thereunder, and other commercially reasonable documents (the "Loan Documents'), which Loan Documents shall contain the following provisions: (a) provide for interest on the Loan amount at the rate of two percent (2 %) per annum compounded quarterly; (b) be repaid in full no later than the earlier of (i) seven years after the last day for payment (prior to delinquency) of the first CDD capital assessments against the Permanent Facilities Site for any capital costs other than for the Road Improvements, or (ii) the date upon which all or any portion of the Surplus Land is sold or developed (as evidenced by the issuance r of a building permit); (c) allow for prepayment without penalty; (d) require LNLC to join in and consent to such plats and easements as may be reasonably necessary to develop the Surplus Land consistent with the requirements of the Gift Agreement (Surplus Land); (e) provide for the payment by Burnham of documentary stamp taxes and intangible taxes on the Loan amount as and when such payments are made, which Burnham acknowledges may require the recording of annual notices of future advance as required by Florida law; (f) shall not require a lender's policy of title insurance; (g) require LNLC to indemnify Burnham from and against any claims, losses or damages for failure to pay CDD capital assessments covered by the Loan in accordance with Section 6(f)(ii) above, including, but not limited to, costs (including attorney's fees) and additional interest expense as a result of a tax ctrtifimte sale, tax deed sale or a foreclosure action pertaining to the Permanent Facilities Site; (h) shall be non - recourse to Burnham; (i) shall contain a default interest rate equal to the statutory rate, 0) shall include all loan related costs as part of the principal amount due (excluding attorney fees inanred in connection with the negotiation of the Loan Documents); and (k) contain other commercially reasonable and standard terns as mutually agreed upon by Burnham and LNLC. In addition, LNLC shall promptly provide Burnham with copies of all correspondence containing proposed or actual CDD assessment methodology, assessment calculations, or assessment proceedings. The provisions of this subparagraph 6(f)(iii) shall survive Closing and shall be incorporated into the Development Agreement. (iv) County and Burnham shall have the right, but not the obligation, to communicate with and appear in front of the applicable CDD for purposes of reviewing, commenting on and/or objecting to any CIP assessment methodology, assessment calculations and/or assessment proceedings, subject to and in accordance with all applicable law. (v) The parties acknowledge that the Permanent Facilities Site shall be subject to the lien of the assessments on the Permanent Facilities Site for the CDD (except during County's ownership thereof); provided, that such lien shall not affect the contractual obligations provided herein, to the extent applicable. oauw�Al �s neae4�e s 14 817621002! DW d" 21=007 SM AM (g) Naming Rights: As a material inducement to Lake Nona to enter into this Agreement, Burnham hereby agrees to name the Permanent Facilities Site `Burnham: Institute for Medical Research at Lake Nona" or "BM Lake Nona" or such other name as Burnham may determine, so long as the name "Lake Nona" remains a part of the name, subject to obtaining LNLC's prior written approval, not to be unreasonably withheld or delayed (the "Project Name'. Burnham may add reference to the name of any donor who provides funding for any part of the Permanent Facilities Site or Permanent Facilities, subject to LNLC's prior written approval, not to be unreasonably withheld. Additionally, the following shall apply: (i) The Project Name will appear on all written material prepared by the Burnham relating to Bumham's operation of the Permanent Facilities at the Permanent Facilities Site, including, without limitation, scientific publications, signs, stationery, and business cards used by Bumbamu in the conduct of its business at the Permanent Facilities Site. The Parties shall use their best efforts to assure that all references to Burnham's operation of the Permanent Facilities at the Permanent Facilities Site shall use the foregoing full names, including, but not limited to, all references to the Project in media, advertisements, brochures and other information made available to the public. in addition, as appropriate, Burnham will include a statement in such materials that the Permanent Facilities are in the Research Park at Lake Nona or the Lake Nona Development. (ii) All automated answering systems, voice mail systems and manually answered telephone switchboards operated by Burnham at the Permanent Facilities shall use the Project Name. (iii.) Appropriate temporary and permanent signs will be placed on the 4 Permanent Facilities Site and buildings thereon, to reflect the Project Name. ..� (iv) Public recognition for the donation of the Permanent Facilities Site shall be attributed to the Tavistock Foundation, unless otherwise directed by the Tavistock Foundation. (v) , All public announcements relating to the donation of the Permanent Facilities Site will be made only as may be agreed upon jointly by the Parties and Burnham. (vi) County and Burnham specifically understand and agree that although the "Lake Nona" name and the '°Tavistock" name may be used by Burnham in the manner contemplated by this Agreement and in other reasonable ways consistent with the intentions of the Parties as evidenced hereby, nothing herein shall be construed as granting County or Burnham the right to sublicense the "Lake Nona" name or the 'Tavistock" name, or the right to convey the "Lake Nona" name or the `7avistock" name to others without prior written consent of Lake Nona or the Tavistock Foundation, as applicable, at such Party's sole discretion. (vii) Except as provided herein and in connection with the identification of the Burnham Campus, County and LNLC specifically understand and agree that nothing herein shall be construed as granting County or LNLC any right to use the `Burnham" or omme1LEST001 nA 15 / 31IBVW28 DW dto 2/22Y W 8:34 AM • r r `Burnham Institute for Medical Research" or '93IIb1R" names, except with the prior written consent of Burnham, not to be unreasonably withheld. The foregoing obligation shall be included in the Development Agreement. The provisions of this paragraph shall survive Closing hereunder. (h) Comm 'cations Rights. As a material inducement to LNLC to enter into this Agreement, County and Burnham hereby agree to grant and convey to LNPH the "Communication Rights", as follows: (i) Dorminatign and Selection of Provider, Subject to the terms of this Agreement, LNPH shall have the exclusive right to select and determine which Providers will be permitted to provide Communications Services on or to the Permanent Facilities Site (including any portions thereof or any buildings or portions of buildings thereon, or to any persons residing or otherwise utilizing the Permanent Facilities Site, or any portion thereof or any buildings or any portions of buildings thereon), and the terms and conditions relating thereto for a period of twenty f201 years after the date of issuance of a CO for the Permanent Facilities. Subject to the terms of this Agreement, LNPH will. negotiate and finalize the Communications Agreements concerning, governing, or relating to the provision of Communications Service selected by LNPH, each of which shall be binding and enforceable against the Permanent Facilities Site and may require execution by County and/or Burnham. County and Burnham agree that LNPH shall have the right to determine the terms and conditions of any and all Communications Agreements for Communications Services selected by LNPH (subject to the term and conditions contained herein), including, without limitation, the length of the term; the terms and conditions of any easements and recordation rights; the types of Communications Services (provided, other than voice, basic cable, internet and security monitoring, which may be "bundled," LNLC shall use its best efforts to ensure that County and Burnham shall not be required to pay for any such services that will not be used by Burnham, but with County and Burnham recognizing that services are often "bundled" by providers), the type of pricing and packaging for the Communications Services; obligations with respect to purchasing, installing and maintaining the wiring, equipment and facilities, including any obligations County or Burnham may have in this regard; the extent to which Provider will have the right to construct structures on the Permanent Facilities Site necessary or desirable to locate some of their equipment, wiring and other facilities (subject to County's and Burnham's review and approval, not to be unreasonably withheld) which serve the Permanent Facilities exclusively. Notwithstanding the foregoing, such Communications Agreements shall: (i) contain rates and service standards and have "state -of -the -art" quality and capabilities that are competitive with end -user market rates, service standards, quality and capabilities for the Communications Services provided to other commercial properties within the Central Florida area; (ii) require the Provider to perform all construction and maintenance work in connection with its facilities on the Permanent Facilities Site in a good, orderly and workmanlike manner, in accordance with good engineering practice, including bonding and insurance and indemnification of County and Burnham for Provider's negligence as reasonably approved by County and Burnham; (iii) Provider shall be. prohibited from installing or operating any of its facilities in any manner that will materially and adversely affect the Permanent Facilities, the Permanent Facilities Site, the Permissible Use on the Permanent Facilities Site and/or the SPMP; (iv) include all scrvices required by Burnham for the Permanent Facilities or allow Burnham to obtain such services ORLIVV LE3T%UMn.e 16 M782100n ow C" 2MMM7 OZ4 an 1 elsewhere; and (v) not require payment for services until final completion of the Permanent Facilities. County and Burnham agree to abide by, and comply with, all of the terms and conditions of each Communications Agreement throughout the term of such Communication Agreements. If the Communication Services selected by LNPH do not meet the foregoing criteria,. County and/or Burnham may supplement such Communication Services with additional Communication Services with LNPH's prior written consent. In addition, notwithstanding anything to the contrary herein, with LNPH's prior written consent (not to be unreasonably withheld), County and Burnham may supplement the Communication Services selected by LNPH with additional Communication Services to the extent that Burnham's operations on the Permanent Facilities Site require Communication Services that are not available through the Communication Services selected by LNPH and with additional Communication Services for use with University of Florida, University of Central Florida, Burnham's La Jolla facilities or any other research institution with . whom Burnham does business. Subject to the foregoing, Burnham may enter into Communications Agreements for such supplemental Communications Services. In addition, the foregoing shall not restrict (i) video confamcing over the internet, (ii) internet streaming, (iii) voice over IP, which will be permitted between Burnham employees within the Burnham Campus or between Burnham employees when used for site to site communication, or entering into Communication Agreements with respect thereto; (iv) Communication Agreements with the University of Central Florida or the University of Florida for Internet2, Florida LambdaRail or such other similar restricted high -speed educational research network sources, or (v) Burnham's ability to specify its customer premises equipment for connection to and compatible with the Provider's equipment. (ii) Prohibited Agreements or Arrang n =. Except as otherwise permitted in this Agreement, County shall have no right to enter into, or permit, and will specifically probibi% any person or party other than LNPH to enter into, any oral or written agreement, easement, license, lease or other arrangement of any type (collectively referred to as ' Prohibited Agreements or Arrangements') for the purpose of, or that will have the effect of, permitting any person or party to provide any Communications Service on or to the Permanent Facilities Site, or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing in or otherwise utilizing the Permanent Facilities Site, or any portion thereof or any buildings or any portions of buildings thereon, and any and all Prohibited Agreements or Arrangements will be null and void, and of no force and effect. If County and/or Burnham is required by applicable law to permit a Person to provide Communications Services on or to the Permanent Facilities Site in contravention of the foregoing, County and/or Burnham, as applicable, shall only permit such Person to provide Communications Services to the extent required by such applicable law. For example, if the applicable law requires that a Person be permitted to provide cable services to the Permanent Facilities Site but has no similar requirement for telephone service, the Person shall not be permitted to provide telephone service to the Permanent Facilities Site. ( iii) MemorializWon of Communications Rights. The provisions of this section shall survive Closing hereunder and shall be incorporated into the Development Agreement at the time of-Closing. 7. Title. ORLIVWALE""70.6 17 311eMU OHJ dN V2V o7 a :3a AM k 9 } (a) LNLC shall deliver to County and Burnham, within twenty (20) days after the Effective Date, the Title Binder. The Title Binder shall evidence that upon (i) the execution, delivery and recordation of the Special Warranty Deed to be delivered by LNLC to County pursuant to the provisions of this Agreement and (ii) the release and/or discharge of the Liens on or before Closing, County shall acquire marketable fee simple title to the Property subject only to the Permitted Exceptions. The Title Policy shall be delivered to County, at LNLC's expense, within thirty (3 0) days after the Closing in accordance with the terms of this Agreement. (b) If County or Burnham shall determine that the Title Binder discloses Title Defects, County or Burnham may so notify LNLC of that fad not later than ten (10) days after delivery of the Title Binder. Any such written notice to LNLC shall identify and specify the Title Defects, together with the action the noticing Party believes would be required to eliminate same. County and Burnham hereby specifically acknowledge that they have reviewed and accepted the Permitted Exceptions and that each shall take title, if and when they do so hereunder or under the Ground Lease, as applicable, subject to the Permitted Exceptions. (e) In the event the Title Binder discloses any Title Defects and County or Burnham timely delivers written notice to LNLC of the existence of any Title Defects, LNLC shall have thirty (30) days. following its receipt of such written notice of the existence of such Title Defects (the "Curative Period') in which to use commercially reasonable, good faith, diligent and timely efforts to cure or eliminate the Title Defects specified in such written notice or to notify County and Burnham that it cannot cure or eliminate the Title Defects. If LNLC fails or refuses to cure or eliminate the specified Title Defects within the Curative Period, County (in cooperation with and with the approval of Burnham) may elect to (i) cure the Title Defect within sixty (60) days of expiration of the Curative Period at the cost of County and/or Burnham; (ii) waive their objections and proceed to Closing with title in its "as is" condition in accordance with the terms hereof, ( iii ) r - equitable remedies against LNLC to remove the Title Defect; or (iv) request that LNLC provide an Alternative Site (defined below), which election shall be made by providing written notice of such termination to LNLC within five (5) days after the expiration of the Curative Period (or five (5) days after County's and Bur nham's receipt of written notice from LNLC that LNLC cannot cure or eliminate such Title Defects, whichever is sooner). In the event that County and Burnham elect items (i), (iii) or (iv), the tolling provisions of Section I0(c)(ii) herein shall apply to LNLC's Obligations. (d) All matters set forth in the paragraph entitled "Conveyance of Title" below, and all matters revealed by the Title Binder and updates thereof which are not duly objected to by County or Burnham, or to which objection is duly made but is waived, shall constitute "Permitted Exceptions" for purposes of this Agreement. (e) In the event that a Title Dcfcd cannot be cured and is not waived by Burnham and County under Section 7(c)(H), then LNLC agrees to diligently and in good faith attempt to fund an alternative site for the Burnham Campus within the Lake Nona Development (an "Alternative Site "). A proposed Alternative Site shall be subject to review and approval by County and Burnham. In the event the Parties agree on an Alternative Site, all periods of time hereunder and under the other Local Agreements shall be tolled for a reasonable time (as agreed on by the Parties) to design and plan for any revisions to the Permanent Facilities required by the Alternative Site, and the Parties shall proceed with performing this Agreement with references OF L1VMAL EaTUMJG,e 18 M 7920028 Ow dry 9naMP 8:M AM 9BI herein to Permanent Facilities Site being deemed to refer to the Alternative Site. If the Parties are unable, after 60 days of making good faith efforts to agree to an Alternative Site for the Burnham Campus, then any Party shall have the right to terminate this Agreement. In the event of a termination pursuant to this Section 7(e), all rights and obligations of the Parties hereunder shall thereupon cease and terminate, except for County's Indemnity Obligations and Burnham's Indemnity Obligations. 8. Survey. On or prior to thirty (30) days after the Effective Date, LNLC shall have obtained and delivered to County and Burnham, a current survey of the Property prepared by a registered Florida professional land surveyor, as certified to LNLC, County, Burnham, the Title Company and Escrow Agent, that meets the Florida Minimum Technical Standards as established by the Board of Professional Surveyors and Mappers, as set forth in the Florida Administrative Code and depicting all matters shown on the Title Binder (the "Survey"). The Survey shall be in substantial accordance with Exhibit "(m)" hereto, provided however that the Parties acknowledge and agree to cooperate prior to Closing to refine and agree upon a final Survey, in an effort to create the most beneficial configuration possible to achieve the success of the overall Research Park; provided such configuration shall be of a size reasonably necessary to accommodate the development of the Permanent Facilities without material increase in cost. The Survey shall further certify the number of gross acres of land contained within the Permanent Facilities Site, the flood zone of the Permanent Facilities Site and the "100 Year Flood Plain," and shall show the impact of all easements and other instruments identified as exceptions to title in the Title Binder. In the event that the Survey reveals any encroachments, gaps, overlaps, or encumbrances which render title to the Permanent Facilities Site unmarketable or that materially and adversely hinders development and construction of the Permanent Facilities in accordance with the SPMP and which are not Permitted Exceptions, then County and Burnham shall have 4 the right to object to the same by providing written notice thereof to LNLC no later than ten (10) days after its receipt of the Survey, in which event the some shall be treated as Title Defects hereunder, Once the final configuration of the Property is determined based upon the Survey as approved by Burnham and County, all references in any documents associated herewith to the "Permanent Facilities Site" shall be deemed to mean the Property as shown on the Survey. 9. Conveyance of Title. At the time of Closing hereunder, LNLC shall convey marketable fee simple interest and estate in and title to the Permanent Facilities Site to County by Special Warranty Deed, free and clear of all liens, encumbrances, exceptions or qualifications whatsoever, save and except only for the Permitted Exceptions including the following: (a) Ad valorem real property taxes for the year of Closing and subsequent years, not yet due and payable, as applicable (provided that any such tax liability through the Closing shall remain the responsibility of LNLC). (b) All applicable land use and zoning regulations, ordinances of general application and the provisions of the Development Order, as the same may be amended from time to time in accordance with Section 16 hereof. (c) Matters deemed Permitted Exceptions pursuant to Section 7(d) hereof. ORLIWEALE8nU6474A 19 f �, 8178MW DW dN R=W7 M AM (d) CDD assessments, not yet due and payable, as applicable (provided, however, that no lien for such assessments shall attach during the County's ownership of the Permanent Facilities Site). (e) The Development Agreement. (fl The Ground Lease. (g) Those matters set forth in Exhibit "(k)" attached hereto and incorporated herein by this reference. 10. Closing Matters. (a) Closing. Provided all Conditions to Closing have been satisfied, Closing hereunder shall occur at 10:00 a:m. Eastern time no more than sixty (60) days after the Effective Date, at the office of Escrow Agent, through the mails or at such other place as the Parties may agree, unless an extension of such date is otherwise agreed to by the Parties in writing (the "Closing Date'). (b) Conditions to Closing. The satisfaction of the following conditions (the "Conditions") must occur by the date specified and shall be a condition precedent to the transfer of the Permanent Facilities Site and the related matters to occur at Closing on the Closing Date, as it may be extended, unless waived by the applicable Party- (i) County, City, LNLC and Burnham, as applicable, shall have entered into the Local Agreements (provided that the failure by County or LNLC to enter into any such agreement shall not constitute a failure to satisfy this Condition as to such Party), and the Local Agreements shall be in full force and effect; (ii) Burnham and the Office of Tourism, Trade and Economic Development shall have entered into the OTTED Agreement; (iii) all representation and warranties set forth in this Agreement, the OWED Agreement and the Local Agreements shall be true and correct in all material respects as of the date of Closing and such agreements shall be in full force and effect (provided that the failure of any representation or warranty made by County or LNLC to be true and correct in all material respects as of the date of Closing shall not constitute a failure to satisfy this Condition as to such Party); (iv) at the time of Closing, all obligations of the Parties provided in this Agreement that are to be satisfied as of the Closing shall have been satisfied (or, in the one of LNLC's Obligations, shall be diligently pursued) or shall have occurred or shall have been waived by the other in writing or as otherwise provided in this Agreement; (v) at the time of Closing, there shall be no Title Defects or County and/or Burnham shall have waived (or be deemed to have waived) any Title Defects to which County or Buniham has duly objected hereunder if the same have not been cured or eliminated of record; and orutw�ussnaee47ea 20 317UMO 0HJ C" ZWJZDD7 8:34 AM 1 (vi) at the time of Closing, there is no litigation or administrative ' proceeding pending or threatened against or relating to this Agreement, the other Local Agreements, the Permanent Facilities Site or LNLC which would or could materially and adversely affect the use of the Permanent Facilities for the Permissible Use. (c) Postponement. (i) If one or more of the Conditions shall not have occurred or been satisfied, or expressly waived by County (in consultation with Burnham), or LNLC, as applicable, or by the terms of this Agreement on or before the Closing Date, as it may have been extended under Section 10(a) hereof, for any reason whatsoever, then County (in consultation with Burnham) or LNLC shall have the right to postpone the Closing Date, by providing written notice to the other Party, no less than ten (10) days prior to Closing, specifying the Condition(s) which has not occurred or been satisfied; provided., in no event shall Closing be postponed for more*than one hundred and twenty (120) days. Any cure periods set forth in Section 7 and/or Sections 10(d) and 10(e) hereunder shall run within and not after the foregoing 120 -day period. In the event that Closing has not occurred by the end of the foregoing period, then any Party shall have the right to terminate this Agreement by providing written notice to the other Parties, following which all rights and obligations of the Patties hereunder shall cease and terminate, except for the Burnham Indemnity Obligations and the County Indemnity Obligations. (ii) In the event of a postponement of the Closing Date pursuant to this Section 10 or Section 7(c) hereunder for a period of time reasonably anticipated to exceed seven (7) days, the time for performing LNLC's Obligations shall be tolled for a reasonable period of time consistent with the reasons for the postponement. +t 11'r/ (d) Failure of LNLC to Satisfy Conditions; Cure. If County and/or Burnham provides notice of LNLC's- failure to satisfy any Condition when required by Section 10(c) hereunder, then LNLC shall promptly, and in any event within thirty (30) days, use good faith; diligent and timely efforts to attempt to satisfy or cause the occurrence of the Conditions specified in the notice. If LNLC is able to so satisfy or cause the occurrence of such Condition within thirty (30) days thereafter (or such other applicable period agreed to by all Parties), then Closing shall occur on such thirtieth (30th) day (or other applicable date) or on the date otherwise agreed upon by the Parties. If LNLC does not or cannot satisfy or cause the occurrence of such Condition within such thirty (30) day (or other applicable) period, then County and/or Burnham may: (i) waive its objections and proceed to Closing; (ii) pursue appropriate equitable remedies; .(iii) if such failure is the result of a Title Defect, pursue the remedies set forth in Section 7 herein; or (iv) request that LNLC provide an Alternative Site in accordance with Section 7 herein; provided, Burnham and the County shall have the option of waiving the Condition at any time and proceeding to Closing. (e) Failure of County to Satisfy Conditions; Cure. If LNLC so provides notice of County's failure to satisfy any such Condition, then County shall promptly, and in any event within thirty (30) days, use good faith, diligent and timely efforts to attempt to satisfy or cause the occurrence of the Conditions specified in the notice. If County is able to so satisfy or cause the occurrence of such Condition within thirty (30) days thereafter (or ' such other applicable period agreed to by the Parties, in cooperation with Burnham), then Closing shall oRLMSAL nea MA 21 �• 3176MM& DW cN Z=001 era AM ..1 Y 0 it IN occur on such thirtieth (30th) day (or other applicable date) or on the date otherwise agreed upon by the Parties. If County does not or cannot satisfy or cause the occurrence of such Condition within such thirty (30) day (or other applicable) period, then LNLC may elect to: (i) waive its objections and proceed to Closing; or (ii) pursue appropriate equitable remedies; provided that LNLC shall have the option of waiving the Conditions at any time and proceeding to Closing. (f) Pursuit of Satisfaction of Conditions. Each Party covenants that it shall in good faith, diligently and timely pursue the satisfaction of the Conditions. Closing hereunder shall constitute County's, Burnham's and LNLC's acknowledgment that all Conditions have been satisfied or waived. (g) Closing Costs and Other Expenses. At the time of Closing under this Agreement: (i) County and Burnham shall each pay its respective cost of all of such Party's due diligence expenses. (ii) LNLC shall pay all documentary stamp taxes required to be paid on and with respect to the Special Warranty Deed, all recording fees, all Survey expenses, and all premiums for the Title Policy to be issued with respect to the Permanent Facilities Site. (iii) LNLC, Burnham and County each shall bear its own attorneys' fees, if any, with respect to Closing. (h) Closing Documents. At Closing: (i) LNLC shall execute and deliver to Escrow Agent the Special Warranty Deed, together with an affidavit in form sufficient for deletion of the "gap" and the exceptions for mechanic's liens and parties in possession under the Title Binder, a closing statement, the Development Agreement and such other documents as may be required hereunder or as County, Burnham or Escrow Agent shall reasonably request. LNLC shall ft -ther cause LNPH to, and LNPH shall, execute and deliver an assignment by which (among other things) the Entitlements will be conveyed for the benefit of the Permanent Facilities Site, at no additional cost to County or Buinharn. (ii) County shall execute and deliver a Closing Statement, the Development Agreement, the County disclosure letter and such other documents as may be required hereunder or as LNLC or Escrow Agent may reasonably request. 11. Proration. All ad valorem real property taxes shall be prorated between LNLC and County with respect to the Permanent Facilities Site based on the prorated amount of taxes levied against the Permanent Facilities Site as of Closing, if applicable, with maximum allowance for discount.. Nothing in the foregoing sentence shall require the County to pay any taxes that it is not required by law to pay. 12. Physical Condition of Permanent Facilities Site. COUNTY AND BURNHAM ACKNOWLEDGE, UNDERSTAND AND AGREE THAT, EXCEPT AS SPECIFICALLY SET FORTH HEREIN TO THE CONTRARY WITH RESPECT TO LNLC'S SPECIFIC ORl.IMMLESM5647ILS 22 317UWZS DHJ d" =Z? =7 6:34 AM REPRESENTATIONS AND LNLC'S OBLIGATIONS, THE PROPERTY IS BEING CONVEYED BY LNLC AND ACQUIRED BY COUNTY IN ITS PRESENT PHYSICAL CONDITION, "AS -IS ", AND THAT LNLC MAKES ABSOLUTELY NO REPRESENTATIONS OR 'WARRANTIES WHATSOEVER WITH RESPECT TO THE PHYSICAL CONDITION OF THE PROPERTY. IN PARTICULAR, EXCEPT AS SPECIFICALLY SET FORTH HEREIN TO THE CONTRARY WITH RESPECT TO LNLC'S SPECIFIC REPRESENTATIONS AND LNLC'S OBLIGATIONS, LNLC MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOIL OR SUBSOIL CONDITIONS OF THE PROPERTY AND SHALL HAVE NO LIABILITY * OR RESPONSIBILITY TO COUNTY FOR ANY LOSS, DAMAGE OR EXPENSES INCURRED BY COUNTY OR BURNHAM WHICH ARE OCCASIONED BY THE CONDITION OR CHARACTERISTICS OF THE SOIL OR SUBSOIL OF THE PROPERTY OR ANY PORTION THEREOF. 13. Representations and Warranties of LNLC. LNLC hereby acknowledges, represents and warrants to Burnham and County that the following acknowledgments, representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of LNLC or information of which LNLC is aware shall refer to the knowledge or awareness of the President and Vice Presidents of LNLC. (a) To f,NLC's and LNPH's knowledge, LNLC holds good and marketable fee simple title to the Permanent Facilities Site and there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Permanent Facilities Site except as described in the Permitted Exceptions. (b) That LNLC has no actual knowledge of any liens, encumbrances or security interests, exceptions or qualifications whatsoever affecting the Permanent Facilities Site that render title to the Permanent Facilities Site unmarketable. (c) That LNLC can convey title to the Permanent Facilities Site, subject only to the Permitted Exceptions, to County without the joinder or consent of others. (d) LNLC has no actual knowledge of any assessments for public improvements which have been made against or which affect the Permanent Facilities Site or of any public improvements which have been planned or ordered to be made and which have not heretofore been completed, assessed and paid, except for matters disclosed herein and assessments that may be levied by the Boggy Creek CDD or the Master Association. (e) To LNLC's actual knowledge, the Permanent Facilities Site is suitable for development and construction of the Permanent Facilities for the Permissible Use as contemplated by the Local Agreements, M To LNLC's actual lmowledge, there are no suits, actions or proceedings (including any proposed zoning changes or condemnation proceedings) pending or, to LNLC's knowledge, threatened against LNLC or affecting the Permanent Facilities Site, other than those contemplated herein. 0RL1VWALE8rAWW 7&5 23 3176Z=& OW did V2240W 8*4 AM won (g) LNLC has not received any notices from any city, county, state or other Governmental Authority or other Person of violations with respect td the Permanent Facilities Site. (h) LNLC has received no notice, and has no actual knowledge, of any existing or pending special assessments affecting the Permanent Facilities Site which may be assessed by any Governmental Authority, water or sewer authority, drainage district or any other special taxing district or other entity, other than as disclosed herein or assessments that may be levied by the Boggy Creek CDD or assessments that may be established with respect to the Primary Conservation Network (as defined within the Lake Nona DRI). (i) There are no existing written or oral contracts or agreements for the sale, lease or transfer of any portion of the Permanent Facilities Site, other than the Permitted Exceptions and those dedications or conveyances associated with the development of the Permanent Facilities Site as contemplated herein. 0) LNLC is not a party to and has no actual knowledge of any agre=ent or commitment that would impose any obligation on County or Burnham with respect to the Permanent Facilities Site, except as set forth in the Permitted Exceptions and the Local Agreements. (k) Neither LNLC nor, to LNLC's actual knowledge, has any other Person ever caused or permitted any Hazardous Substance to be placed, held, located or disposed of on, under or at the Permanent Facilities Site or any part thereof (except in accordance with applicable law) To LNLC's actual knowledge (i) there is no landfill or buried debris on, under or at the Permanent Facilities Site, and (iai) neither the Permanent. Facilities Site nor any part thereof has ever been used (whether by LNLC or, to the best of LNLC's knowledge, any other person) as a dump site or storage site (whether permanent or temporary) for any Hazardous Substances. County and Burnham hereby acknowledge that LNLC has obtained and delivered to County and Burnham a Phase I environmental assessment report prepared by Professional Services Industries, Inc. for Lake Nona South, together with a reliance letter issued in favor of County and Burnham; County and Burnham accept the condition of the Permanent Facilities Site as set forth in such report. 0) To LNLC's actual knowledge, the soil and subsoil 'condition of the Permanent Facilities Site is as set forth in the soils report prepared by Professional Service Industries, Inc, with a date of November 6, 2006, together with a reliance letter issued in favor of County and Burnham; County and Burnham accept the soil and subsoil condition of the Permanent Facilities Site as set forth in such report. (m) To LNLC's actual knowledge, the Permanent Facilities Site is not in a known flood plain. (n) The officers of LNLC executing this Agreement and the documents and instruments to be executed by LNLC in connection with this transaction have been duly authorized to execute the documents and the instruments to be executed by LNLC in connection with this transaction and no other officers or entities are required to bind LNLC hereunder. ORL1VWALE911eM'M,e 24 317OZIODU OHJ db =4007 634 AM Y� (o) All required action has been taken by LNLC authorizing and approving the execution of and entry into this Agreement as of the date hereof and will be taken authorizing and approving the execution and delivery by LNLC of the documents and instruments to be executed and delivered by LNLC at the Closing, and the performance by LNLC of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement. (p) LNPH is or will be the owner of the Entitlements, and LNPH has and will have the right to assign the Entitlements for the Permissible Use within the Permanent Facilities for the benefit of the Permanent Facilities Site at the time of Closing. (q) There are no actions, suits or proceedings pending or to its actual knowledge threatened against, by or affecting LNLC which would have an adverse impact upon LNLC's ability to perform its obligations hereunder, or which would question the validity or enforceability of this Agreement or of any action to be taken by LNLC under this Agreement, in any court or before any Governmental Authority, domestic or foreign. I,*\ (r) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by LNLC on the Closing date, and the performance by LNLC of LNLC's duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement, are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which LNLC is a party or to which the Permanent Facilities ~ Site is subject, any judicial order or judgment of any nature by which LNLC is bound or to ' Which the Permanent Facilities Site is subject; and this Agreement, and the covenants and agreements of LNLC under this Agreement, are the valid and binding obligations of LNLC, enforceable in accordance with their terms. (s) LNLC will not cause or permit LNPH or knowingly permit any other party to take any action which will cause any of the foregoing representations, warranties or covenants to be untrue or unperformed on the Closing Date; and LNLC will not cause or knowingly permit any action to be taken which will cause any of the conditions of LNLC's obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing date. (t) LNLC will, and will cause LNPH to, deliver on the Closing date all documents and instruments required by this Agreement and perform all acts reasonably necessary or appropriate for the consummation of the transfer of the Permanent Facilities Site and assignment of the Entitlements as contemplated by and provided for in this Agreement. (u) LNLC will deliver at the Closing all documents and instruments required by this Agreement and perform all acts reasonably necessary or appropriate for the transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement. (v) To LNLC's actual knowledge, water, sewer, electric, gas (if applicable), telephone, cable and other utilities are currently available to Lake Nona South and will be ORI MVIALEerAW76.8 25 3176W= OHJ d4 Ttj2nw7 804 AM available to the Permanent Facilities Site in a timely fashion during the construction of the Permanent Facilities pursuant to applicable contracts and agreements. (w) The President and Vice Presidents of LNLC are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. 14. County's Representations and Warranties. County hereby represents and warrants to Burnham and LNLC that the following representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of County or information of which County is aware shall refer to the knowledge or awareness of the County Mayor, County Administrator and Deputy County Administrators. (a) County has the lawful right, 'power, authority and capacity to acquire the Permanent Facilities Site in accordance with the terms, provisions and conditions of this Agreement and otherwise perform the obligations of County contained herein. (b) There are no actions, suits or proceedings pending or to its actual knowledge threatened against, by or affecting County which would have an adverse impact upon County's ability to perform its obligations hereunder, or which question the validity or enforceability of this Agreement or of any action taken by County under this Agreement, in any court or before any Governmental Authority, domestic or foreign. (c) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by County on the Closing Date, and the performance by County of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the acquisition and transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement, are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which County is a party, any judicial order or judgment of any nature by which County is bound; and this Agreement, and the covenants and agremnents of County under this Agreement, are the valid and binding obligations of County, enforceable in accordance with their terms. (d) All required action has been taken by County authorizing and approving the execution of and entry into this Agreement as of the date hereof and authorizing and approving the execution and delivery by County of the documents and instruments to be executed and delivered by County at the Closing, and the performance by County of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement. (e) County will not cause any action to be taken which will cause any of the representations, warranties or covenants of County set forth in this Agreement to be untrue or unperformed on the Closing date; and County will not cause or knowingly permit any action to be taken which will cause any of the conditions of County's obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing date. (f) County will deliver at the Closing all documents and instruments required by this Agreement to be delivered by County and perform all acts reasonably necessary or ora.oM&EST eears.e 26 311aMM DHJ dry V2=Dl 6a4 AM appropriate for the transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement. (g) The County Mayor, County Administrator and Deputy 'County Administrators are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. 15. Burnham's Representations and Warranties. Burnham hereby represents and warrants to County and LNLC that the following representations and warranties are true and correct as of the Effective Date. References to the actual knowledge of Burnham or information of which Burnham is aware shall refer to the knowledge or awareness of the Chief Executive Officer, Chief Operating Officer and Vice President, Business Development of Burnham and, only if and when appointed, the Vice President, Operations of Florida of Burnham (or equivalent officer position). (a) Burnham has the lawful right, power, authority and capacity to ground lease the Permanent Facilities Site in accordance with the terms, provisions and conditions of the Ground Lease and otherwise perform the obligations of Burnham contained herein. (b) There are no actions, suits or proceedings pending or to its actual knowledge threatened against, by or affecting Burnham which would have an adverse impact upon Burnham's ability to perform its obligations hereunder, or which question the validity or enforceability of this Agreement or of any action taken by Burnham under this Agreement, in any court or before any Governmental Authority, domestic or foreign. . (c) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by Burnham on the Closing Date, and the performance by Burnham of its duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the matters prey, vided for in this Agreement, are consistent with and not in violation of; and will not create any adverse condition under, any contract, agreement or other instrument to which Burnham is a ply, any judicial order or judgment of any nature by which Burnham is bound; and this Agreement, and the covenants and agreements of Burnham under this Agreement, are the valid and binding obligations of Burnham, enforceable in accordance with their terms. (d) All required action has been taken by Burnham authorizing and approving the execution of and entry into this Agreement as of the date hereof and will be taken authorizing and approving the execution and delivery by Burnham of the documents and instruments to be executed and delivered by Burnham at the Closing, and the performance by Burnham of its duties and obligations under this Agreement necessary and appropriate for the transfer of the Permanent Facilities Site as contemplated by and provided for in this Agreement. (e) Burnham will not cause or knowingly permit any action to be taken which will cause any of the representations, warranties or covenants of Burnham set forth in this Agreement to be untrue or unperformed on the Closing date; and Burnham will not cause or knowingly permit any action to be taken which will cause any of the conditions of Burnham's ORLIWEALESTM470.0 27 SIYSVO028 DFU dnJ 212*12007 ea4 AM • r r obligations set forth in this Agreement, to be unsatisfied or unperformed on or as of the Closing date. (f) Burnham will deliver at the Closing all documents and instruments required by this Agreement to be delivered by Burnham and perform all acts reasonably necessary or appropriate as contemplated by and provided for in this Agreement. (g) The Chief Executive Officer, Chief Operating Officer and Vice President, Business Development of Burnham and, only if and when appointed, the Vice President, Operations of Florida of Burnham (or equivalent officer position) are the parties who would reasonably have knowledge with respect to the foregoing representations and warranties. 16. Planned Developmeut/Development of Regional Impact. The Permanent Facilities Site is a part of the Lake Nona DRL LNLC retains and shall hereafter have the right, at any time and from time to time, to make such changes, modifications, revisions, additions and/or deletions to the Development Order as LNLC, in its sole discretion, shall determine; subject, however, if required, to the approval of the appropriate agencies of the State of Florida. County, in its proprietary capacity of the owner of the Permanent Facilities Site as opposed to its regulatory capacity as a governmental entity, on behalf of itself and its Permitted Assignees, and Burnham, on behalf of itself and its Permitted Assignees, .hereby waive any and all right to object, directly or indirectly, to any changes, modifications, revisions, additions and/or deletions to the Development Order by LNLC or LNPH except to the extent that any such change, modification, revision, addition and/or deletion may have a material adverse effect upon the Permanent Facilities or the Permanent Facilities Site in accordance with the SPMP and/or Master Plan or have a material and adverse effect upon the ability of Burnham to operate the Permanent Facilities for the Permissible Use. LNLC hereby discloses to County and Burnham that LNLC will be pursuing one or more Entitlements Amendment and agrees to provide written notice to County and Burnham of any such Entitlements Amendment. County and Burnham acknowledge and agree that such Entitlements Amendment shall not be considered to have a material adverse effect upon the Permanent Facilities Site provided such Entitlements Amendment does not preclude development of the Permanent Facilities in accordance with the SPMP or have a material and adverse effect upon the ability of Burnham to operate the Permanent Facilities for the Permissible Use. Neither County (in its proprietary capacity), Burnham, nor either Party's assignees shall have, and County (in its proprietary capacity) and Burnham, on behalf of such Party and its respective assignees, hereby waives, any right to change, amend or modify the Lake Nona DRI, the PD or any other agreements, approvals or permits affecting the Lake Nona DRI (except for such matters that solely affect the Permanent Facilities Site) in any manner whatsoever, without the express prior written consent of LNLC and LNPH, which consents may be withheld or conditioned in such Parties' sole, absolute and arbitrary discretion. LNLC and LNPH shall have the right to review any proposed amendment and shall not be required to find the existence of a material and adverse impact in order to disapprove of a proposed amendment. Any such proposed amendment proposed by County, Burnham or their assignee shall be submitted to both LNLC and LNPH, together with copies of all pertinent documentation relevant to or to be submitted or filed with the proposed amendment. LNLC and LNPH shall have a period of up to forty-five (45) days within which to review, and approve or disapprove, as applicable, of such ortuAEALEsn A"".e 28 BMW= OHJ C" ?J9WW7 8a4 AM • r u amendment. Approval of the amendment may be conditioned at LNL.C's and/or LNPH's sole discretion. No such amendment may be submitted to any Governmental Authority without the express written consent of LNLC and LNPH. The failure of LNLC or LNPH to approve of or object to such a proposed amendment within said forty-five (45) day period shall be deemed a disapproval of the amendment'. County and Burnham shall cooperate with LNLC in completing LNLC's biannual reporting obligations under the Development Order. The provisions of this paragraph shall expressly survive Closing under this Agreement and shall be incorporated. into the Development Agreement. 17. Development Agreement. (a) Bxgguton of Deyelopmen# Aggnt. At Closing, County and LNLC and/or LNPH shall execute and deliver to each other the Development Agreement, in the form consistent with other development agreements executed by such parties within the Lake Nona Dn which will, among other things, (a) convey and allocate to the Permanent Facilities Site the Entitlements, (b) limit the use of the Permanent Facilities Site to the Permissible Use and the Subleasing Restrictions and in accordance with the Ground Lease, and (e) provide constructive notice of the easements and restrictions set forth herein as well as any of the other rights and obligations set forth herein regarding the development of the Permanent Facilities Site as either County or LNLC may reasonably request, including, without limitation, those matters so specified herein, as well as a notice of the proximity of the Permanent Facilities Site to Orlando International Airport and notice of the architectural and design approval provisions set forth herein (the "Development Agreement'. The Development Agreement shall be recorded among the Public Records of Orange County, Florida immediately after the deed to be executed and delivered at Closing. LNLC shall provide County and Burnham with a copy of the proposed form of the Development Agreement not less than thirty (30) days after the date hereof. (b) Defaults Under Development Ate. The Development Agreement shall provide that in the event County or Burnham defaults in the performance or observance of any of the covenants, restrictions, requirements, stipulations and obligations to be performed and/or observed by County or Burnham thereunder, including but not limited to: (i) failing to receive LNLC's approval of improvements and infrastructure to be constructed by Burnham on the Permanent Facilities Site; or (ii) except for the Ground Lease to which LNLC hereby consents, contracting for sale or lease of the Property or any portion thereof during such time as County owns the Permanent Facilities Site, other than as provided under the Funding Parties Agreement. In the event a conveyance or lease to a third party is approved by LNLC, County shall ensure that any such third party purchaser or lessee is contractually obligated to perform County's obligations hereunder, which obligations by their nature are intended to survive Closing and run with title to the Property; or (iii) Burnham's defaulting in the performance or observance of any of the covenants, restrictions, requirements, stipulations and obligations to be performed and/or observed subsequent to Closing by County under the Master Declaration at any time prior to turnover. 0MI%REALE57neW76A 29 31 79TH = DHJ d1l 2h1"M E:34 AM WIN, (collectively, a "Development Agreement Default'). (c) Remedies for Development A= =ad Default, In the event of a Development Agreement Default, the Development Agreement shall provide that LNLC shall have the option to proceed according to one or more of the following causes of action: (i) Subject to the limitations provided hereinbelow, initiate an action at law or in equity to enforce LNLC's rights under the Development Agreement, including but not limited to specific performance or injunctive relief; (ii) Cure the default in the manner set forth in subsection 17(d) hereinbelow; and/or (iii) Record a declaration among the public records that a Development Agreement Default has occurred under the Development Agreement in order to preserve and/or enforce any of LNLC's rights thereunder without such declaration being deemed a slander of title or other cause of action in favor of County or Burnham. (d) LNLC's Rights to Cure. In recognition of the paramount need of LNLC to control the development of Lake Nona South over a period of many years and the substantial damage that may be incurred by LNLC if the plans for Lake Nona South are not followed by County or Burnham, LNLC may, at its option, in addition to all other rights and remedies herein provided, cure any Development Agreement Default and charge County or Burnham, as applicable, for all commercially reasonable expenses incurred by LNLC in so doing. County or Burnham, as applicable, shall pay LNLC for all such expenses upon demand by LNLC. LNLC shall have alien against the Permanent Facilities Site for recovery of such expenses, which lien may be foreclosed in like manner to the foreclosure of mortgages under Florida law; provided, however, such lien shalt not attach until the recording of a Notice of Lien in the public Records of Orange County, Florida Notwithstanding the foregoing, the lien and foreclosure rights specified herein shall not apply to the Permanent Facilities Site during the period of time County is the owner of such property. Additionally, no action that would constitute a default under the Development Agreement shall be deemed a default until written notice thereof has been given to the party in default and the party in default has failed to' cure the default within ten (l o) days of such notice; provided, in the event such party has commenced cure within said period and is diligently pursuing same to completion, such parry shall have thirty, (30) days to effectuate the cure. Notwithstanding anything contained herein to the contrary, LNLC agrees that so long as the Ground Lease is in effect and the obligation sought to be enforced has been imposed upon Burnham thereunder, LNLC's exclusive remedies shall be to either (i) require County to enforce such obligation against Burnham under the Ground Lease; or (ii) pursue enforcement directly against Burnham pursuant to LNLC's third party beneficiary rights under the Ground Lease, with LNLC being entitled to all remedies thereunder and hereunder. In all events, LNLC's remedies against County for recovery of damages shall be limited to the actual and compensatory damages suffered or incurred by LNLC in connection with a default hereunder; but in no case shall include special, punitive, exemplary, indirect, incidental or consequential damages, including lost profits and opportunity costs. oRWREALEG 18mme 30 31TOLIMO DHr c" =Mw 9:s4 AM 98 J 18. Architectural ControL Within 180 days after the Effective Date hereof, LNLC shall provide County and Burnham with the Approved Architectural Criteria, and no improvements of any kind may be constructed on any portion of the Permanent Facilities Site unless such improvements are approved in writing by LNLC and are consistent and in accordance with the Approved Architectural Criteria, unless otherwise agreed in writing by LNLC. LNLC shall not change the Approved Architectural Criteria after providing it to Burnham and County in any way which would materially.and adversely affect the Permanent Facilities or the Permanent Facilities Site. Thereafter, no Party shall apply for or obtain any of the development permits, or a building permit for, or commence the construction of, any improvements on any portion of the Permanent Facilities Site, unless and until the plans and specifications for any such improvements or modifications are first submitted to and reviewed and approved, in writing, by LNLC and are consistent with the Approved Architectural Criteria, such review and approval not to be unreasonably withheld or delayed and so long as such modification is consistent with the quality standard established by LNLC for the Lake Nona DRI. Any modification to the Approved Architectural Criteria shall only be made upon review and approval by LNLC, not to be unreasonably withheld ,or delayed. County and Burnham acknowledge that LNLC's review and approval rights shall include, without limitation, exterior wall design (including materials, height, color, signage affixed, detailing,), signage and poles (including project, street, directional), lighting and poles (including street, signage, landscaping, building), screen enclosures, construction site appearance and maintenance, exterior equipment, play equipment, loading docks, fencing and landscaping (including type, size, spacing, design, irrigation, sod and trees). The provisions of this paragraph shall expressly survive Closing and shall be included in the Development Agreement. The Approved Architectural Criteria shall run with the land and shall apply to subsequent third-party lessees or purchasers of any portion of the Permanent Facilities Site. `L.wr 19. Default Provisions; Remedies. (a) CQOU'g Default in its ,liggon 1Q Close If, in violation of the terms and conditions herein, County fails to close on the Closing bate, as it may have been extended in accordance with Section 10 herein, other than for a failure of a Condition, LNLC may pursue as its sole remedy appropriate equitable remedies against County. If County fails to satisfy any of the Conditions to be satisfied by County, LNLC shall have the rights described in Section 10(c) and Section 10(e). (b) LNLC's Default in its Obligation t9 Close. If, in violation of the terms and conditions herein, LNLC fails to close on the Closing Date, as it may have been extended in accordance with Section 10 herein, other than for a failure of a Condition, County and Burnham may pursue as its sole remedy appropriate equitable remedies against LNLC. If LNLC fails to satisfy any of the Conditions to be satisfied by LNLC, County (in consultation with Burnham) shall have the rights described in Section 10(c) and Section 10(d), or if such failure is the result of a Title Defect, the remedies described in Section 7(c). (c) Mate 'al Default. The occurrence of any one or more of the following events sball constitute a "Material Default." ORLIM LL.ESM0475A 31 31752WZB OW dI P1P oOT 6,34 AM (i) By County. In the event of a breach by County of any material term of this Agreement to be observed or performed by County except for matters set forth in Section 19(a) above (but only if such breach is not due to the breach of any obligation of any other party under this Agreement or any other agreement contemplated hereby) (a "County Material Breach', LNLC shall provide written notice to County, with a copy to Burnham, of such County Material Breach. County shall acre such County Material Breach, or if such County Material Breach is not capable of cure, County shall promptly report to LNLC and Burnham regarding the circumstances that led to the County Material Breach, the impact of the County Material Breach on this Agreement and how County intends to mitigate any anticipated or actual adverse impact. Such reports to LNLC and Burnham shall occur as promptly as possible after notification to County that a County Material Breach has occurred, and shall continue until the County Material Breach has been cured or until LNLC are reasonably satisfied that any County Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of County to perform as contemplated by this Agreement. If County and LNLC, with Burnham's approval, are unable to resolve the County Material Breach within one hundred twenty (120) days, either by its cure or by LNLC's satisfaction that County can perform its obligations as contemplated by this Agreement, then LNLC may pursue as its sole remedy appropriate equitable remedies for such County Material Breach. (H) By Burnham. In the event of a breach by Burnham of any material term of this Agreement to be observed or performed by Burnham prior to or after Closing (but only if such breach is not due to the breach of any obligation of any other party under this Agreement or any other agreement contemplated hereby) (a `Burnham Material Breach'), LNLC shall provide written notice to Burnham, with a copy to County, of such Burnham Material Breach. Burnham shall cure such Burnham Material Breach, or if such Burnham Material Breach is not capable of cure, Burnham shall promptly report to LNLC and County regarding the circumstances that led to the Burnham Material Breach, the impact of the Burnham Material Breach on this Agreement and how Burnham intends to mitigate any anticipated or actual adverse impact. Such reports to LNLC and County shall occur as promptly as possible after notification to Burnham that a Burnham Material Breach has occurred, and shall continue until the Burnham Material Breach has been aced or until County and LNLC are reasonably satisfied that any Burnham Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of Burnham to perform as contemplated by this Agreement. If Burnham and LNLC, with County's approval, are unable to resolve the Burnham Material Breach within one hundred twenty (120) days, either by its cure or by LNLC's satisfaction that .Burnham can perform its obligations as contemplated by this Agreement, then LNLC may pursue as its sole remedy appropriate equitable remedies for such Burnham Material Breach. (iii) By LNLC. In the event of a breach by LNLC of any material term of this Agreement to be observed or performed by LNLC except for matters set forth in Section 19(b) above (but only if such breach is not due to the breach of any obligation of any, other party under this Agreement or any other agreement contemplated hereby) (a "LNLC Material Breach"),- County in cooperation with Burnham shall provide written notice to LNLC, with a copy to Burnham, of such LNLC Material Breach. LNLC shall cure such LNLC Material Breach, or if such LNLC Material Breach is not capable of cure, LNLC shall promptly report to County and Burnham regarding the circumstances that led to the LNLC Material Breach, the impact of the LNLC Material Breach on this Agreement and how LNLC intends to mitigate any ORL1utEAL98T=a4j" 32 3176210026 DHJ dN Z21I2007 8:31 AM �9e � anticipated or actual adverse impact. Such reports to County and Burnham shall occur as promptly as possible after notification to County and Burnham that a LNLC Material Breach has occurred, and shall continue until the LNLC Material Breach has been cured or until County and Burnham are reasonably satisfied that any LNLC Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of LNLC to perform as contemplated by this Agreement. If County (in cooperation with Burnham) and LNLC are unable to resolve the LNLC Material Breach within one hundred twenty (120) days, either by its am or by County and Burnham's satisfaction that LNLC can perform its obligations as contemplated by this Agreement, then any Party may pursue as its sole remedy appropriate equitable remedies for such LNLC Material Breach. (d) Effect of Termination. Upon termination of this Agreement, all rights and obligations of the Parties to this Agreement shall terminate except as specifically set forth in this Agroaanent. (e) Exclusivity of Remedies. The remedies specifically enumerated in this Agreement are intended to be exclusive of any other remedy. Each Party hereto waives all rights to seek damages against another Party hereunder except those arising as a result of specific indemnity obligations hereunder. (f) _Qm2. If, after Closing, there is any material delay in the Milestone Schedule due to a failure to cure by County of a Condition or a Material Breach by County and/or Burnham, LNLC's time to perform LNLC's Obligations shall be delayed by a comparable portion of time. •� r 20. Indemufdlication Obligations. (a) By County. County shall repair any damage to the Permanent Facilities Site caused in connection with County's or its agents' entries onto the Permanent Facilities Site under Section 5 herein, to the extent provided in Section 768.28, Florida Statutes (2006), shall indemnify and hold harmless LNLC from and against, and shall reimburse LNLC for, any loss, cost, damage, claim or expense to the extent arising from or as a result of County, its agents or invitees being on the Permanent Facilities Site, or the undertaking of any such work, tests or studies, pursuant to this Agreement ( 'County's Indemnity Obligxtiomrs' }; provided, however, nothing contains herein shall be construed as a waiver of County's sovereign immunity beyond the limits providing the statutory waiver of immunity. County's Indemnity Obligations shall not extend to any loss, cost, damage, claim or expense resulting from (i) the acts or negligence of LNLC or its agents or employees, or (ii) existing conditions located on the Permanent Facilities Site (e.g. hazardous wastes), but shall survive Closing under, and the termination of, this Agreement. (b) By Burnham. Burnham shall repair any damage to the Permanent Facilities Site caused in connection with Burnham's or its agents' entries onto the Permanent Facilities Site under Section S herein, to the extent permitted by law, shall indemnify and hold harmless LNLC from and against, and shall reimburse LNLC for, any loss, cost, damage, elaimh or expense to the extent arising from or as a result of Burnham, its agents or invitees being on the Permanent Facilities Site, or the undertaking of any such work, tests or studies, pursuant to this o"u.tusnaeaTae 33 3t76y0028 DFU �?!Yll20UT 0:34 AM .I` • e VALJ-IJ Agreement and Burnham shall indemnify, defend and hold LNLC harmless from and against any claims made by Burnham and its agents, guests, licensees, invitees, or any other persons accessing the site at the invitation of Burnham,, for any injury or other claim arising in any way from such party's exercise of its right to access the site except for claims arising out of LNLC's sole negligence. Burnham shall also be responsible for any delays caused and/or any additional cost resulting from such visits and shall indemnify, defend and hold LNLC harmless for any claims arising out of such delays ( 'Burnham's Indemnity Obligations', Burnham's Indemnity Obligations shall not extend to any loss, cost, damage, claim or expense resulting from (i) the intentional acts or negligence of LNLC or its agents or employees, or (ii) existing conditions located on the Permanent Facilities Site (e.g. hazardous wastes), but shall survive Closing under, and the termination of, this Agreement. 21. Assignability. Except for an assignment by Burnham to an entity to which it is entitled to assign its rights and obligations under the Grant Agreement, this Agreement may not be assigned by County or Burnham in whole or in part without the express prior written consent of LNLC, which consent may be withheld in LNLC's sole, absolute and arbitrary discretion. Any assignment of County's or Burnham's rights hereunder shall be subject in all respects to such Party's obligations hereunder and the terms, conditions and limitations set forth herein and, unless a permitted assignment, shall not serve to release such Party from its obligations hereunder. Except as otherwise specifically provided herein, LNLC may only assign its rights and obligations hereunder to a Permitted Assignee which owns the Permanent Facilities Site and which demonstrates that it has the financial ability to perform LNLC's Obligations hereunder, without County's or Burnham's consent. LNLC expressly acknowledges and consents to the Ground Lease and the provisions therein providing for conveyance of the Permanent Facilities Site to Burnham. 22. Declaration of Covenants, Conditions and Restrictions. County acknowledges that LNLC shall have the right to approve in writing the terms and conditions of any declaration of covenants, conditions and restrictions to which County subjects the Permanent Facilities Site, whether through a property owner's association that may be formed in connection with the development of the Permanent Facilities on the Permanent Facilities Site, which if formed, shall be a member of the Master Association, or otherwise, as well as the articles of incorporation, bylaws and other documents governing any such property owner's association. County hereby acknowledges and agrees that all covenants, conditions and restrictions and any such property owner's association documents shall be submitted to LNLC and the Master Association for review and approval at least thirty (30) days prior to the anticipated recordation date. The provisions of this Paragraph shall survive the Closing hereunder. 23. Enforcement Costs. In the event that any Party finds it necessary to employ an attorney to enforce any provision of this Agreement, the predominantly prevailing Party will be entitled to recover from the other Party its reasonable attorneys' fees and costs incurred in connection therewith (including costs of collection), at both trial and appellate levels; including bankruptcy proceedings, in addition to any other remedies to which such Party may be entitled The requirement to pay the predominantly prevailing Party's reasonable attorneys' fees and costs will survive any termination of this Agreement. °�ftiesWoDw aw 47 s M � 34 (9B L 24. Time of Essence. Time is of the essence of this Agreement and in the performance of all conditions and covenants to be performed or satisfied by any Party hereto. Whenever a date specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the next succeeding Business Day. 25. Waiver. No waiver of any provision of this Agreement shall be effective against any Party hereto unless it is in writing and signed by the Party(ies) waiving such provision. A written waiver shall only be effective as to the specific instance for which it is obtained and shall not be deemed a continuing or future waiver. 26. Counterparts. This Agreement may be executed in any two (2) or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. 27. Captions. The captions, sections and part designations herein set forth are for convenience only and shall have no substantive meaning. ' 28. ' notices. All notices and communications under this Agreement shall be in writing and shall be given by: (i) hand delivery; (ii) certified mail, return receipt requested (postage prepaid); (iii) reliable overnight commercial courier (charges prepaid); or (iv) facsimile (with confirmation of h mnission) to each of the Parties as follows: ORLIIREALE97M6176.6 35 81764Mn VW"2/2212007 6*{ AM To LNLC: Lake Nona Land Company, LLC 9801 Labe Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Telephone: (407) 816 -6598 Facsimile: (407) 438 -0207 With a copy to: Lake Nona Property Holdings, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Telephone: (407) 816 -6598 Facsimile: (407) 438 -0207 and With a copy to: TwAstock Corporation 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Thakkar, Chief Executive Officer Telephone: (407) 909 -9911 Facsimile: (407) 876 -0085 and Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Telephone: (407) 839 -4282 Facsimile: (407) 650-0920 Orange County, Florida 201 S. Rosalind Avenue Orlando, Florida, 32802 Attention: Orange County Administrator Telephone: (407) 836 -7370 Facsimile: (407) 836 -7399 Orange County, Florida 201 S. Rosalind Avenue P.O. Box 1393 Orlando, Florida 32801 -1393 Attention: Manager, Real Estate Division Telephone: (407) 836 -7070 Facsimile: (407) 836 -5888 36 9B With a copy to: Burnham Institute for Medical Research 10901 North Toney Pines Road La Jolla, California 92037 Attn: Karin Eastham, Executive Vice President/COO Telephone: (858) 646 -3100 Facsimile: (858) 646 -3184 With a copy to: Buiaham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Vice President, Business Development Telephone: (858) 646 -3100 Facsimile: (858) 646 -3105 With a copy to Shutts & Bowen LLP 300 North Orange Avenue, Suite 1000 Orlando, Florida 32802 Attention: Michael Grindstaff Telephone: (407) 423 -3200 Facsimile: (407) 425 -8316 With a copy to Cooley Godward Kronish LLP 4401 Eastgate Mall San Diego, CA 92121 Attention: L. Kay Chandler Telephone: (858) 550 -6000 Facsimile: (858) 550 -6420 To Escrow Agent: Broad and Cassel 390 North Orange Avenue, Suite 1100 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Telephone: (907) 839 -4282 Facsimile: (407) 650 -0920 Notice shall be deemed to have been given and received: (i) if by hand delivery, upon delivery; (ii) if by mail, three (3) days after' the date first deposited in the United States mail; (iii) if by overnight courier; on the date shown on the courier's receipt as the date of actual delivery; and (iv) if by facsimile, on the date shown on the confirmation of transmission. A Party may change its address by giving written notice to the Party as specified herein. 29. Governing Law, Venue, This Agreement shall be governed by the laws of the State of Florida. The Parties hereby agree that venue for any legal action authorized hereunder shall be in Orange County, Florida, and that jurisdiction shall be vested the Civil Division of the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida, and if appropriate, in the Business Court Division thereof. ORLIMALESTV600476.0 37 31704/0020 DW &4 4/IIYMT 094 AM o 30. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 31. Integrated Contract, Waiver and Modification. This Agreement (together with the documents specifically referred to herein) represents the complete and entire understanding and agreement between and among the Parties hereto with regard to all matters involved in this Agreement and supersedes any and all prior or contemporaneous agreements, whether written or oral. This Agreement may not be modified or amended, nor may any provision contained herein be waived, except in writing signed by all Parties, or if such modification, amendment or waiver is for the benefit of one or more of the Parties hereto and to the detriment of the others, then the same must be in writing signed by all Parties to whose detriment the modification, amendment or waiver inures. 32. Brokers. LNLC and County hereby acknowledge, represent and warrant to each other that no broker or finder has been employed by either LNLC or County in connection with the sale and purchase transaction contemplated in this Agreement. LNLC and County each warrant to the other that no commissions arc payable by LNLC or County respectively to any broker or finder in connection with this Agreement or the transaction contemplated herein, and LNLC and County each agrees to indemnify, defend, save and hold the other harmless from and against the payment of any commissions or fees or claims for commissions or fees by virtue, of any acts or actions undertaken by them, respectively; it being expressly agreed that the foregoing agreement of indemnification shall expressly survive any termination, closing or closings under this Agreement. 33. Memorandum of Agreement. Neither this Agreement nor a memorandum thereof may be recorded in the public records of any county within the State of Florida; the recording of this Agreement or a memorandum shall be a default hereunder. 34. Independent Contractor Relationship. Each Party to this Agreement is, and shall be, in the performance of all work services and activities under this Agreement, an independent contractor, and not an employee, agent, or servant of any of the other Parties to this Agreement, individually or collectively. All persons engaged in any of the work or services performed by a Party pursuant to this Agreement -shall at all times, and in all places, be subject to such Party's sole direction, supervision, and control. Each Party shall exercise control over the means and manner in which it and its contractors perform the work. No Party to this Agreement has the power or authority to bind any other Party to this Agreement in any promise, agreement or representation. 35. Surviving Clauses. The provisions of this Agreement set forth in Sections 2, 4, 5 (as provided therein), 6 (as provided in section 6.b.(xii)), 11, 12, 13 -15 (for a period of one year following Closing), 16 -20, 21 (as provided in section 6.b.(xii)) and 22-43 will survive Closing pursuant to this Agreement and Sections 5 (as provided therein), 19, 20, 23 -29, 31 -38, 41-43 shall survive any termination of this Agreement. Except as set forth in the preceding sentences or OMMEAL.OATWw'ru 38 3176210020 DW dN 272M78:34 AM 1 as otherwise expressly set forth herein, no other provision of this Agreement will survive closing of this transaction or any termination hereof as a matter of right. 36. No Partnership or Joint Venture. Nothing set forth in this Agreement shall be deemed or construed as creating a legal partnership nor a legal joint venture between the Parties hereto nor any other Party, nor shall it cause any Party to be responsible in any way for the debts and obligations of any other Party. 37. Limited Joinder of LNPH. LNPH hereby joins in the execution of this Agreement for the limited purpose of evidencing its agreement to be bound by only those terms and provisions hereof which specifically pertain to LNPH. 38. Force Majeure, A Party hereto shall be excused for the period of delay in the performance of any obligations hereunder when such delay is occasioned by a Force Majeure Event and the time for performance shall be automatically extended for a like period, including the extension of the dates in the Milestone Schedule for the period of such delay. Notwithstanding the foregoing, the terms of this provision shall not apply to the payment of any amount when due or to Closing, 39. Continuing Cooperation. LNLC and County agree that they will, at any time and from time to time after the Closing Date, upon request of any other Party, do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers, conveyances, applications and assurances as may reasonably be required for the assigning, transferring, granting, assuring and confirming of the transaction contemplated herein, or for aiding and assisting in collecting and reducing to possession, any' or all of the assets or property being transferred herein pursuant to this Agreement, provided that the same do not impose any liability or additional costs on any other Party beyond that contemplated in this Agreement. 40. Approvals/Continuing Cooperation. In the event this Agreement indicates that a Party's consent shall not be unreasonably withheld or is silent in such regard, such consent shall not be unreasonably withheld, delayed or conditioned. In the event this Agreement indicates that a Party's consent may be granted or withheld at such Party's solo discretion, such consent may be granted or withheld at such Party's sole and absolute discretion for any reason or no reason at all. 41. Severability. If any term or provision of this Agreement, or the application thereof to any person or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provision, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. 42. No Forfeiture. The rights of each of the Parties under this Agreement shall be cumulative and failure on the part of any such Party to exercise promptly any rights given hereunder shall not operate to forfeit or waive any of the said rights. ORLiVtM Mr106M47E.E 39 i. 31 M 0026 MU ON W=2007 8*4 AM rAll 43. No Fees. Except as otherwise expressly set forth in this Agreement, no fees or other charges of any kind or amount shall be required by any Party hereto as a condition of the grant of any consent or approval which may be required under this Agreement (provided that the foregoing shall not be deemed in any way to limit County or City acting in its governmental, as distinct from its capacity as a contract party to this Agreement, from charging governmental fees on a nondiscriminatory basis). NOTICE TO COUNTY THE BOGGY CREEK IMPROVEMENT DISTRICT MAY IMPOSE AND LEVY TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON THIS PROPERTY. THESE TAKES AND ASSESSMENTS PAY THE CONSTRUCTION, OPERATION, AND MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES AND SERVICES ON THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF THE DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO THE COUNTY AND ALL OTHER LOCAL GOVERNMENTAL TAXES AND ASSESSMENTS AND ALL OTHER TAXES AND ASSESSMENTS PROVIDED FOR BY LAW. [SIGNATURES CONTAINED ON FOLLOWING PAGES) oftI me"7e.e 44 31?VMM CW and r ftM AM IN WITNESS WBERFOF, the Parties have caused these presents to be signed the day and year first written above. ATTEST: Martha O. Haynie, County Comptroller As Clerk acd of County Commissioners B99CIerk Date: MAR 0 6 2007 ORANGE COUNTY, FLORIDA, By. Board ofTTunty Commiss o ers By: Richard T. Cro Orange County Mayor Date: Pun� r 41. � ORLIIREALFUNG476.6 31787UM ON C" 4122=7 6:32 AM Signed, sealed and delivered in the presence of the following witnesses: "LNLC" LAKE NONA LAND COMPANY, LLC, a Florida limited liability company By: - �- asesh Thakkar, Vice President Executed on: 5 , 2007 ORLflREALEST886476.6 3178210028 DHJ dhj 2/222007 8:34 AM Signed, sealed and delivered in the presence of the following witnesses: BURNHAM INSTITUTE FOR MEDICAL RESEARCH, 'a California nonprofit public benefit corporation B N o Reed, M.D., Ph.D. Title: em t and Chief Financial Officer Executed on: , 2007 i 0RL1VWAMSn6664765 43 ! 31762/0016 DHJ 04 V2V2007 831 AM LIMITED JOINDER The undersigned hereby joins in the execution of this Agreement for the limited purpose of evidencing its agreement to be bound by only those terms and provisions hereof which pertain to the undersigned. 0RLI%REALE571888478.8 44 31782/0028 DHJ dlq 2/22/2007 8:34 AM LAKE NONA PROPERTY HOLDINGS, LLC, a Florida limited liability company sy: asesh Thakkar, Vice President Executed on: 2007 r Disclosure DISCLOSURE OF PUBLIC FINANCING AND MAINTENANCE OF IMPROVEMENTS TO REAL PROPERTY UNDERTAKEN BY THE BOGGY CREEK IMPROVEMENT DISTRICT . Under Florida law, community development districts are required to take affirmative steps to provide for the full disclosure of information relating to the public financing and maintenance of improvements to real property undertaken by such districts. The law specifically provides that this information shall be made available to all persons cprrently residing within the District and to all prospective District residents. The following information describing the Boggy Creek Improvement Distrlet (the "District') and the assessments, fees and charges that have been levied within such districts to pay for certain community infrastructure is provided to fulfill this statutory requirement. What is the PLstrict and how is it governed? The District is an independent special taxing district established in 2003 by the Board of County Commissioners, Orange County, Florida. A local unit of special- purpose government created pursuant to and existing under the provisions of Chapter 190, Florida Statutes, the District encompasses approximately acres of land located in the City of Orlando, Orange County, Florida, The District provides an alternative means for planning, financing, constructing, operating, and maintaining various public improvements and community facilities within its jurisdiction. The District is governed by a five- member Board of Supervisors, the members of which must be residents of the State and citizens of the United States. Within 90 days of appointment of the initial board, members were elected on an at -large basis by the owners of property within the District, each landowner being entitled to one vote for each acre of land with fractions thereof rounded upward to the nearest whole number. Elections are held every two years on the fast Monday in . Commencing six years after the initial appointment of Supervisors and when the District attains a minimum of qualified electors, Supervisors whose terms are expiring will begin to be elected by qualified electors of the District. A, "qualified elector" in this instance is any person at least 18 year's of age who is a citizen of the United States, a legal resident of Florida and of the District, and who is also registered with the Supervisor of Elections to vote in Orange County. Notwithstanding the foregoing, if at any time the Board proposes to exercise its ad valorem taxing power, it shall, prior to the exercise of such power, call an election at which all members of the Board shall be elected by qualified electors of the District. Board meetings are noticed in the local newspaper and are conducted in a public forum in which public participation is invited. Consistent with Florida's public records laws, the records of the District are always available for public inspection during normal business hours. Elected members of the Board are similarly bound by the State's open meetings law and are subject to the same disclosure requirements as other elected officials under the State's ethics laws. 0MIMME ne MMS Si?5WM9 OW tJ ?12?I W"AM What iI&RgMectuure inn, rovements does the District 2rovide7 The infrastructure improvements provided by the District include roads, roadway and other drainage collection and water management systems, bridges, water supply and distribution systems, wastewater and reuse systems, streetlighting systems, and open space and conservation areas. These improvements are being constructed or have been constructed with the proceeds of the District's bonds (discussed below). ssessments Fees. and Charees The costs of these infiastructure improvements have been financed by the District . through the sale of Special Assessment Bonds, Series (the `Bonds'). The Bonds, and the interest due thereon, are payable solely from and secured by the levy of non ad valorem or special assessments against lands within the District which benefit from the construction, acquisition, establishment, and operation of the District's improvements. The District may only undertake the construction, acquisition, or installation of other future improvements and facilities, which may be financed by bonds, notes or other methods authorized by Chapter 190, Florida Statutes. More information can be obtained from the District's public records. The amounts described above exclude any operations and maintenance assessment which may be calculated annually by the District's Board of Supervisors against all benefited lands in the District. A dotailed description of all costs and allocations which result in the formulation of assessments, fees and charges are available for public inspection upon request. Method of Collection The District's benefit and maintenance assessments may appear on that portion of the annual real estate tax bill entitled "non -ad valorem assessments," and will be collected by the County tax collector in the same manner as county ad valorem taxes. Each property owner must pay both ad valorem and non -ad valorem assessments at the some time. Property owners will, however, be entitled to the same discounts as provided for ad valorem taxes. As with any tax bill, if all taxes and assessments due are not paid within the prescribed time limit, the tax collector is required to sell tax certificates which, if not timely redeemed, may result in the loss of title to the property. This description of the District's operation, services and financing structure is intended to provide assistance to the landowners and Burnham's concerning the important role that the District plays in providing infrastruchue improvements essential to the development of new communities. If you have questions or would simply like additional information about the District, please contact the District Manager, Boggy Creek Improvement District, District Offices: Attn• . telephone: OrJAWALUMsare.e 317ft== ow dh aJZa 2007 644 At IAgt of NXI its Schedule Schedule of Definitions Exhibit "(d)" Entry Road System Exhibit "(h)" Master Plan Exhibit "(k)" Permitted Exceptions Exhibit "(m)" Property Exhibit "6(a)" Milestone Schedule Exhibit "6(b)(iv)" Mass Grading Exhibit "6.f.(ii)" CIP ORLIMMNLEWM5478.8 45 31789A028 DHJ di 2@912007 8.'31 AM 9B Schedule 1 Definitions "t' shall mean that certain separate, restricted, interest-bearing escrow account established pursuant to the terms of the Escrow Agreement. "Agreed Avgrag Wage" mean9130% of the average private sector wage in Orange County, Florida as determined by the Agency for Workforce Innovation ("AWP) in the most recently released ES 202 Report during the year in which Agreed Average Wage is being measured for purposes of the Grant Agreement. As of the Effective Date of the Chant Agreement, the Agreed Average Wage based on AWI's most recent ES 202 Report (2004) is $46,965 (13(r of $36,127, the average private sector wage in Orange County, Florida). The term "wage" includes all wages, salaries, commissions, bonuses, drawing accounts (advances to employees against fture earnings), prizes and awards (if given by employer for employment), vacation pay, payment to employees of difference between regular pay and jury pay, payments to employees temporarily absent while in military service, wages earned before death but paid after death, dismissal pay, sick pay (not made under a plan or system) and supplemental payments (difference between workers' compensation and employee's salary). "Approved Architectural Criteria" shall mean certain restrictions, limitations and design criteria for development and construction of improvement within the Lake Nona DRI adopted pursuant to the Master Declaration. "approved egg Progra&" shall mean the Space Program, schematic design and construction schedule established pursuant to the terms of the Development Obligation Agreement for the Permanent Facilities. "A c tg�Ct' shall mean the architect, including its employees, agents and subcontractors, retained by Burnham or the Project Manager to provide professional design and engineering services for the Temporary Facilities or for the Permanent Facilities under an Architect Agreement. "Architect Ag neuY' shall mean the Consultant Contract between Burnham or the Project Manager and Architect, as same maybe amended flom time to time. "Available Funds" shall mean the Grant Funds (inclusive of any interest on such funds escrowed in the Account), less any and all amounts previously expended or committed for the Permanent Facilities from such funds pursuant to the terms of the Development Obligation Agreement and the Grant Agreement, or expended, committed or budgeted from such fiords for the Temporary Facilities under the terms of the Grant Agreement. "Base Fun&g Amount' shall mean the initial amount of the Tier 1 Funds contributed by the Funding Parties to the Account, in the amount of $7,000,000, in accordance with Part V.A.3.a. of the Grant Agreement. "Boggy Creek CDD" shall mean the Boggy Creek Improvement District. 1. ORLIIREALMUN76.4 9178N= DW dN %W 2= 6:2 AU �* .x R • " BQgd Default" means an event of default under the Bond Documents which (a) would entitle the County of San Diego or the Trustee under the Bond Documents to exercise remedies under the terms of the Bond Documents, (b) has not been cured or waived, and (c) would reasonably be expected to have a Material Adverse Effect; provided that such Bond Default shall cease to exist if any remedies exercised upon an uncured event of default have been rescinded and annulled under the terms of the Bond Documents. `Bond Documents" means the Installment Purchase Agreement and Installment Sale Agreement between Burnham and the County of San Diego and the Trust Agreanent among Burnham, the County of San Diego and the Trustee named therein, each dated as of February 1, 2006, as may be amended. `Bon shall mean the payment and performance bonds required pursuant to the Development Obligation Agreement, "BudeeY' shall mean the reasonable and probable total cost of the design, planning. permitting, and construction of the Permanent Facilities, as estimated by the Project Manager, which shall be subject to adjustment in accordance with the tams of the Development Obligation Agreement. The Budget shall include the Contingency and the Laboratory Allowance, which shall be separately budgeted for and reserved in accordance with the terms of the Development Obligation Agreement. `gym" shall mean Burnham Institute for Medical Research, a California nonprofit public benefit corporation, "Brnh�p " shall mean approximately fifty (50) aCI� of land located within Labe C , Nona South, in the approximate location shown on Exhibit `B" to the Grant Agreement, to be donated by LNLC in accordance with the Grant Agreement and the Gift Agreements. "Business Dav" shall mean a day (other than a Saturday or Sunday) on which banks generally are open in Orlando, Florida for the conduct of substantially all of their commercial lending activities and intearbank wire transfers can be made on the Fedwire system. "Business Plan" means the business plan of Burnham for its Florida operations, which includes an initial budget and an organizational plan, and may include, among other information, strategic goals and objectives, general research and development information, and status reports. The Business Plan shall cover the first 10 years of Burnham's operations in Florida The Business Plan shall include a proposed budget, including a staffing plan, an equipment purchase budget, and proposed operating expanses. The staffing plan shall identify the number of Jobs and estimated salaries to be funded in Florida. A copy of the Business Plan as of the Effective Date of the Grant Agreement is attached hereto as Bxhibtt "A" and incorporated herein by this reference. The Business Plan may be amended subject to and in accordance with the applicable provisions of the Grant Agreement. "CDD" shall mean the Boggy Creek CDD or any other community development district created by LNLC having jurisdiction over the Permanent Facilities Site. 2. ORL1ViEM.FS7M479A • r r "Ceased Qgmofio , shall mean, for each Report Period during the Measurement Period, the situation where Burnham's total number of Jobs created and maintained at the Temporary Facilities or Permanent Facilities as of the end of such Report Period is less than fifty percent (50 %) of the total number of Jobs, measured in the aggregate, that Burnham was to have created and maintained in Orlando, Florida as of the end of such Report Period as set forth in Burnham's Business Plan (with fiscal years after fiscal year 2016 being the same as for fiscal yeas' 2016). For example, in June 2010, Burnham would be scheduled to have created a total of one hundred twenty -one (121) Jobs. If the number of Jobs at Bmnham's Florida location as of such date was sixty (60) or less, Burnham would have Ceased Operations for purposes of this definition. For purposes of the determination of Ceased Operations as of a given point in time, any Job with a wage paid by Burnham that would Cause a moving two -year average of the wages for all Jobs created by Burnham as of such time to be less than the Agreed Average Wage may not be counted for purposes of rejecting a claim of Ceased Operations. "Certificate of Occupancy" or `�Qg" shall mean a permanent certificate of occupancy, certificate of completion or such other equivalent approval, as applicable, for the Permanent Facilities issued by the City. ,yha a Order" shall have the meaning set forth in the applicable Construction Contract. 'W' shall mean City of Orlando, Florida, a municipal corporation organized and existing under the laws of the State of Florida. "Closin ' shall mean the date when the parties to the Gift Agreements exchange the instniments and documents described therein. "_Clogq,g_Agent" shall mean Broad and Cassel, Bank of America Center, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. "Communications A vteemeats I shall mean any and all agreements, and any and all related documents, such as easements, leases, licenses, or other arrangements of any type, concerning, governing, or relating to the provision of any Communications Services on or to the properties within the Lake Nona DRI or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or otherwise utilizing (e.g., leasing) the such properties, or any portion thereof or any buildings or any portions of buildings thereon. "Commmications Services" shall mean any and all types of services and systems connected with, or related to, the provision of communications (e.g., voice, video or data services), including the following: (i) any and all types of voice services, including local telephone service, long distance telephone service, and voice over IP services; (ii) any and all types of "cable service," as such term is defined by the Federal Communications Commission; (iii) any and all types of video services, including multi - channel video service, broadcast service, internet streaming, video over IP services, and interactive video service; (iv) any and all types of internet services, including high -speed Internet access services, voice over IP services, and video over IP services; (vi) any and all types of broadband services; (vii) any and all types of baseband services; (viii) any and all types of narrowband services; (x) any and all types of telemedicine 3. 0MLI 4M5 r%8WTQA $Inn MOWdh►7lJ=0076:32nM services or other communications- related services that are utilized by health care providers or health care facilities; and (ix) any and all types of security monitoring services. "Constriction Contract" shall mean any and all construction contract(s) for the construction of the Temporary Facilities or any portion thereof (to be entered into from time to time by and between Burnham and any Contractor), or the Permanent Facilities or any portion thereof (to be entered into by Burnham or the Project Manager and any Contractor selected by the Project Manager in accordance with the Development Obligation; Agreement), as applicable, as such Construction Contract may be amended or replaced from time to time. The term " Canstruction Contracts" shall also include the "Prime Construction Contract." "Construction Contract Documents" shall mean the Construction Contracts and all amendments thereto moorporating the final, constructible plans, specifications and all other reasonably necessary documents for the design, planning, permitting and construction of the Permanent Facilities, and shall include the Drawings and Specifications, and all Change Orders executed or issued subsequent to the date of the Construction Contracts. t" shall mean say person(s) or entities engaged by the Project Manager or Burnham responsible for services related to the construction of the Temporary Facilities or Permanent Facilities such as those services in connection with environmental analysis, pre - construction, owner's representation, cost estimation, scheduling, expediting, procurement, insurance, value engineering services, inspection, materials testing, and other similar services related to the accounting, documentation, inspection, permitting, management, testing or construction of the Temporary Facilities or the Permanent Facilities. 6617 ant Contract" shall mean the contract(s) to provide services in furtherance of the planning, design, permitting, and construction of the Temporary Facilities (to be entered into by Burnham and the Consultant(s)) or the Permanent Facilities (to be entered into by and between the Project Manager and the Consultant(s) selected by Burnham or the Project MatuW in accordance with the Development Obligation Agreement), as such Consultant Contract may be amended or replaced from time to time " Contingency" shall meau ten percent (10 %) of the estimated total cost of the design, planning, permitting and construction of each of the Temporary Facilities and the Permanent Facilities until such time as the Prime Construction Contract and/or other Stipulated Sum contracts are fully executed, at which time the allocable portion of Contingency applicable to such cost may be reduced as to the executed contracts to four percent (4 9/9) of the contract price. Contingency funds for the Temporary Facilities may be used to fiind cost overruns on the Temporary Facilities, and Contingency fiords for the Permanent Facilities may be used as provided in the Development Obligation Agreement. The unused portion of the Contingency for the Temporary Facilities and any other part of the Two Million Dollars ($2,000,000) reserved for Project Cost for the Temporary Facilities shall be retained for use in the design, planning permitting and constitution of the Temporary Facilities provided that the total Project Cost for the Temporary Facilities does not exceed Two Killion Dollars ($2,000,000), and when Burnham no longer needs such funds for the Temporary Facilities, any such remaining amounts shall be available to pay Project Cost for the 4. wa.tvtlALESYUeet�YA 9176?�G078 OFU dhJ a7a/2o07 8�2 AH Permanent Facilities. The unused portion of the Contingency for the Permanent Facilities shall be transferred to the Laboratory Allowance as provided in the Development Obligation Agreement. 4 llliW`'ox 1 shall mean any contractor(s), duly licensed pursuant to Chapter 489, Florida Statutes, engaged by (1) Burnham for construction and/or managing the construction within the Temporary Facilities pursuant to the Construction Contracts, and (2) Burnham or the Project Manager in accordance with the Development Obligation Agreement, responsible for constructing and/or managing the construction of the Permanent Facilities, or any portion thereof, pursuant to the Construction Contracts. The term "Contractor" shall also include the "Prima Contractor." "Cost Over rLms" shall have the meaning set forth in Article VI of the Development Obligation Agreement. ` °V&W]W' shall mean Orange County, Florida, a charter county and political subdivision of the State of Florida `VW' means a calendar day consisting of a twenty -four (24) hour period beginning and ending at 12:00 midnight Orlando, Florida time, and includes Saturdays, Sundays and all holidays, except that in the event that an obligation to be performed under this Agreement falls due on a Day that is not a Business Day, such obligation shall be deemed due on the next Business Day thereafter. "Dcdm Contract" shall mean the design contract(s) for the design and engineering of the Temporary Facilities or any portion thereof (to be entered into by and between Burnham and any Design Professional(s)) or the Permanent Facilities or any portion thereof (to be entered into by and between Burnham or by the Project Manager and the Design Professional(s) in accordance with the Development Obligation Agreement), as such Design Contract may be amended or replaced from time to time. "Design PPofessional" shall mean any design professionals) or engmeer(s), including any Architect and Project Engineer, engaged by Burnham for the design of the Temporary Facilities or by Burnham or the Project Manager for the design of the Permanent Facilities pursuant to the terms of the Development Obligation Agreement. -V ffAgpment Oblin ion Agreement" shall mean that certain Development Obligation Agreement (Pennant Facilities) by and between LNBC and Burnham, as described in the Grant Agreement and as it may be amended in accordance with its terms, or any subsequent agreement with substantially the same material terms, obligations, and conditions entered into between Burnham and another Project Manager, if approved by the Funding Parties, such approval not to be unreasonably withheld. "Deval� Order" shall mean the City of Orlando Third Amended and Restated Development Order for the Lake Nona Development of Regional Impact dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, of the Public Reoords of Orange County, Florida, as amended from time to time. 5. aa.IweuMMU79A a, owerrVX=VWMAM • " Pisnute Resolution Panel" shall mean a standing panel of three members designated to K resolve disputes between the Parties under Part V.A.3.g. of the Grant Agreement. The Project Manager and Burnham shall jointly select one member of the panel. The Finding Parties shall jointly select the second member of the panel. The two members so selected shall jointly select the third member of the panel, who*shall act as the panel chair, So long as LNBC is the Project Manager LNLC shall not play a role in selecting the Funding Parties' panelist. Each panelist shall be an appropriately qualified third -party neutral who is not a current employee of or current consultant to any of the Parties. Each party shall bear the cost of its respective panelist and the non - prevailing party in any dispute submitted to the panel shall bear the cost of the third panelist. In the event a panelist is unable to serve, his replacement shall be chosen by the parties that selected him. "Drawingj and Specifications" shall mean the construction drawings for the Temporary Facilities or the construction drawings for the Permanent Facilities, as the same may be. changed from time to time in accordance with the terms of the Development Obligation Agreement. "Draw Request" shall mean a request for disbursement of Grant Funds from the Account for Project Costs made by Burnham or the Project Manages to the Funding Parties, together with supporting documentation, which shall include a copy of all applications for payment, invoices or receipts certified by Burnham or the Project Manager, as well as copies of the documentation required in connection with payments due under the Design Contract, the Prime Construction Contract, the Construction Contracts or in respect of payments due to Vendors, Consultants or others. Such application shall include, as applicable, the certification set forth in Attachment F to the Development Obligation Agreement (or a comparable certification if made by Burnham for any Project Costs for the Temporary Facility) and shall include, as applicable, a copy of the consolidated and reconciled pay application submitted to Burnham and/or the Project Manages by any Contractor, certified by the applicable Design Professional and any additional required documentation. Documentation submitted with each Draw Request shall be sufficient to establish that amounts requested for payment were actually incurred for Project Costs. Each Draw Request shall include the appropriate Waivers and Releases. Each Draw Request shall reflect the appropriate Retainage under the applicable Construction Contract. "2raw Zero" shall mean the initial Draw Request submitted by LNBC the month following the initial funding of the Account and entitled "Draw Zero, , 2007," for reimbursement of Project Costs incurred prior to the date thereof "Effecting Date" shall mean the date set forth in the first paragraph of the applicable agreement or otherwise specified as the date on which such agreement becomes effective. "Enablin� Statute' shall mean Chapter 2006 -55, Laws of Florida, codified as Section 288.1089, Florida Statutes (2006). "Entitlem ' shall have the meaning set forth in the Cliff Agreement (Permanent Facilities) with regard to the Permanent Facilities Site or in the Gift Agreement (Surplus Land) with regard to the Surplus Land. 6. ORLMEA18$r10l0 MA $ 110 710 0 4 8 OW Ad ZW=7 8= AM 'TW lements .mgndmed' shall mean any amendment to the Development Order that would increase and/or modify the entitlements for the entire Lake Nona DRI as described in the Gift Agreements, including, without limitation, changing the proposed uses (e.g., to allow for the development of a hospital); provided, however, that LNLC shall not (and shall cause its affiliates not to) seek or approve a modification or amendment to the Development Order which would preclude operation of the Permanent Facilities or development of the Burnham Campus for the Permissible Use. ' Environmantal Laws" shall mean any federal, state or local environmental, health and/or safety - related law, rule, regulation, requirement, order, ordinance, directive, guideline, permit or permit condition, currently existing and as amended, enacted, issued or adopted in the future. The term Environmental Laws includes, but is not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and similar state or local laws. "Environmental Permits" shall mean all material permits, authorizations, licenses, approvals, and variances necessary under any Environmental Laws for the continued conduct of operations in the manner then conducted. cr r ' as to the Escrow Agreement, shall mean the party designated from time to time as such under the terms of the Grant Agreement and the Escrow Agreement, and as to the Gift Agreements shall mean Broad and Cassel, Bank of America Center, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. "Escrow AMY' shall mean that certain Escrow Agreement by and among the Funding Parties, Burnham and the Escrow Agent entered into simultaneously with the Grant Agreement pursuant to which the construction of the Permanent Facilities and the Temporary Facilities shall be funded. "Estimattod. Target Construction Coo shall mean the sum presently estimated to be $79,000,000, derived by deducting the amounts expended, committed or budgeted for the construction of the Temporary Facilities from the Grant Funds, which is the current estimate to complete the construction of Bole Permanent Facilities, from which the Contingency (estimated to be $7, 900, 000) and the Laboratory Allowance will be established in accordance with the'terms of the Development Obligation Agreement. 'T& O' shall mean the fixtures and equipment installed or used in connection with the Temporary Facilities and the Permanent Facilities. "Final Ac ance" shall mean the satisfaction of all of the conditions to Final Payment set forth in the Development Obligation Agreement. "Final 'shall mean final completion of the Permanent Facilities, as evidenced by a certification by the Project Engineer and the issuance of a Certificate of Occupancy by the City. "Final Payment" shall have the meaning set forth in the Development Obligation Agreement. 7. ORLIMALBOMWMA atMWW OW d" =10W = AM • w EALIJ "Force McFjM Event" shall mean an event causing delay occasioned by a cause or causes beyond the control of the party whose performance is so delayed, including, without limitation: adverse weather conditions; earthquake•, acts of God; war; war -like operations; civil commotion; riots; sabotage; terrorism; governmental (except County or City as to each such party in their respective proprietary capacities) or judicial action/inaction, regulation, legislation, or controls (including permitting or approval delays); third party lawsuits; moratoria; labor disturbances; or material shortages. The parties acknowledge and agree that a party's incompetence or More to deploy reasonable resources to meet its obligations under any agreement shall not be deemed to constitute a Force Majeure Event as to such party. "Funding party" shall mean each of the County, City and LNLC. Collectively, these entities may be termed the "Funding Parties." "Fw4p' g Parties ' shall mean the agreement by and among County, City and LNLC setting forth the rights and obligations of the parties with respect to the Permanent Facilities Site arising from or in connection with the Grant. Agreement. `�gAM" shall mean accounting principles generally accepted in the United States of America, applied on a consistent basis. "Gift A eut (PermMe t Facilities)" shall mean the gift agreement entered into by and among LNLC, County and Burnbam, with limited joinder by LNPH, for the donation and transfer of the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Errhibit "E:' "Gift Agreement (,gluts Land)" shall mean the gift agreement entered into by and between LNLC and Burnham, with limited joinder by LNPH, for the donation and transfer of the Burnham Campus less the Permanent Facilities Site, the form of which is attached to the Grant Agreement as Exhibit "D." "Gift Ag a ts' shall mean the Gift Agreement (Permanent Facilities) and the Gift Agreement (Su This Land). "Govetmeutal Atngritg" shall mean any board, bureau, commission, department or body of any municipal, county, state or federal governmental or quasi - governmental unit, or any subdivision thereof, having or acquiring jurisdiction over the Temporary Facilities, the Permanent Facilities or the Burnham Campus or any portion thereof or the management, operation, use or improvement thereof "Govemmental Licenses" shall mean all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities. "C t _A ent' shall mean that certain grant agreement by and among the Funding Parties and Burnham, including. all exhi bits, amendments and supplements thereto, as it may be amended in ac oordauce with its terms. 8. MLIMAUNrAMMA 98 Of t Fun , shall mean the amount of Eighty -One Million Dollars ($81,000,000) in cash provided to Burnham by the Funding Parties to be used for Project Cost in accordance with the Grant Agreement. "Gross_ Floor Area" shall have the meaning provided in the standards of the American Institute of Architeots. "Ground Lease" shall mean the ground lease entered into by and between County and Burnham for the lease of the Permanent Facilities Site (for use in accordance with the Permissible Use restriction, as defined therein), as it may be amended in accordance with its terms. " Hamardous Substances" shall mean any hazardous or toxic substances, materials or wastes, pollutants or contaminants regulated by Environmental Laws, as now or may hereinafter be amended, including, but not limited to, petroleum products, biomedical waste, radioactive materials, flammable or corrosive substances, explosives, polychlorinated biphenyls and asbestos. "Imyact.F " shall mean transportation impact fees or other similar impact fees assessed by any Governmental Authority in connection with the development of the Burnham Campus. & I shall mean the interchange constructed at the intersection of Lake Nona Boulevard and State Road 417 a/k/a the Greeneway. "&b Co 'tment' shall have the meaning set forth in the Ground Lease. "Me" shall mean full-time jobs and full-time equivalent. jobs (based on a 35 hour work week), and Other Personnel, as defined herein; provided, no nonemployee person providing planning, design, permitting, construction or odw similar services related- to the Temporary Facilities or the Permanent Facilities shall qualify as a Job lereunder. In tabulating horns worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be included "Other Personnel" shell mean (i) employees of contractors, joint venture partners or licensees operating under agme went with Burnham that are performing functions or services for Burnham and/or its affiliates in Florida in Burnham's facility in Orlando, Florida and other Central Florida locations consistent with the Permissible Use, and (b) personnel engaged directly by Bumbam as independent contractors to whom Burnham issues an IRS Form 1099 (only wages paid by Burnham to such Other Personnel shall be included in wages for purposes of calculation of the moving two-year average under Part VI.E. of the Grant Agreement). In addition, to be counted towards Jobs, Other Personnel shall: (a) perform ongoing services or functions for Burnham in the Temporary Facilities or Permanent Facilities that might otherwise be performed by employees, but which Burnham has elected to procure through the services of Other Personnel due to the, specialized nature of the expertise required or other business purpose, and/or perform their work for Burnham substantially in the Temporary Facilities or Permanent Facilities (other than customary business travel); and (b) not perform services or functions limited to terms of less than six months; and a ORLIMALESTYM479.4 3178'L M1 Ud"20*=e02 AM 9B ; 9B (c) not constitute more than 25% of the total Jobs. Jobs shall include binding offers accepted and committed to by the prospective employee or Other Personnel even though the employee's or Other Personnel's commencement date may be deferred by up to one (1) year from the date of employee's or Other Personnel's acceptance of the offer. This defmition excludes any position attributable to Burnham by virtue of a merger or acquisition of an existing business or operation in Orange County, Florida. For clarification, Other Personnel and Burnham employees shall only be included m Jobs on a full -time equivalent basis based on a 35 bour work week. For example, if a Burnham full-time employee spends 50% of his time in California and 50% of his time in Orlando, Florida in a given year, that employee would count as 0.50 of a Job. If a Burnham consultant that constitutes an Other Personnel spends 12 hours per week performing work for Burnham in Orlando, Florida in a given year, that consultant would count as 0.34 of a -Job. "i abor foxy Allowa�" shall mean the sum, which shall initially be up to ten pement (100/9) of the Available Funds existing as of the conclusion of the Preliminary Design Phase (as defined under the Development Obligation Agreement), which sum shall be determined by Burnham in its reasonable discretion during the Preliminary Design Phase and reserved under and subject to the limitations of the Development Obligation , Agreement and shall be available to Burnham pursuant to the terms of the Grant Agreement and the Development Obligation Agreement for (a) the completionAnstallation or reconfiguration of laboratory facilities within the Permanent Facilities, which may include furniture, fixtures or equipment that were initially utilized in connection with the Temporary Facilities and can be relocated to the Permanent Facilities, and (b) after the laboratory facilities within the Permanent Facilities are at 100% completion based upon capacity for the 303 Jobs contemplated under the Business Plan and required under the Grant .. Agreement, for payment of CDD capital assessments for the Permanent Facilities Site, inchrding repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities), and after payment of such CDD capital assessments for the Permanent Facilities Site, for payment of CDD capital assessments for the Surplus Land, inehxHng repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). e Nona DRl I or "Lake Nona Development" shall mean property that is subject to the Development of Regional Impact approved by City Of Orlando and the State of Florida known as the "Lake Nona Development of Regional Impact" pursuant to the terms of Development Order, or the "Lake Nona Planned Development" pursuant to the terms of the pD, within which the Burnham Campus shall be located. "Lake Nona South' shall mean that portion of the Lake Nona Development lying south of the Greeneway. ,,IMW Rqq&=ents,, shall mean all applicable laws, statutes, ordinances, rules, regulations, orders, judgments, decisions, decrees, standards, and requirements. "Lug, shall mean Lake Nona Boggy Creek, LLC, a Florida limited liability company. 10. OMT#WALMM5479A 31eetudry2tn/Wa:eair r� "LNLC" shall mean Lake Nona Land Company, LLC, a Florida limited liability company. shall mean Lake Nona Property Holdings, LLC, a Florida limited liability company. ")V MIU Association" shall mean the master property owners' association created pursuant to the Master Declaration. "Master Declaration" shall mean the master declaration of covenants, conditions, restrictions and easements for all or a portion of the properties within Lake Nona South lying generally west of the Interchange as determined by LNLC- 11_Majgjal Adverse Med' shall mean (a) as of the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the, ordinary course of operations, which change would reasonably be expected to subsiaxttially impair Burnham's ability to conduct its core operations or to fulfill its material obligations, as and when required, under the errant Agmement, the Ground Lease, or the Development Obligation Agreement, and (b) after the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to prevent Burnham from fulfilling its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement. ' Weasurement Period" shall mean the period during which the number of Jobs and the • moving two -year average of the wages paid by Burnham for all Jobs created by Burnham are measured, which period shall commence July 1, 2009 and shall end upon the. last day of the Term of the Ground Lease. The Measurement Period may be extended as provided in Part 7GII of the Grant Agreement. "Mem_o_updum of Funding Parties Aaeeeynant" shall mean the memorandum of the Funding Parties Agreement to be executed at the time of Closing ,under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange. County, Florida. "Memorandum of goluid Lease" shall mean the memorandum of the Ground Lease to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida promptly after the Ground Lease is executed. 'Minimum Regly gnen&' shall mean the minimum programmatic requirements for the Permanent Facilities, set forth on Exhibit "B." tion" shall mean the option to purchase the Permanent Facilities Site granted by County to Burnham pursuant to the terms of the Ground Lease. "OTTED Agreement" shall mean the Innovation Incentive Funding Agreement between the State of Florida's Office of Tourism, Trade and Economic Development and Burnham which 11. OMMAt esM647 .a $1-MZWM 0WdNVaWVff ea¢AM I • controls the obligations of Burnham and OTTED with regard to incentive grants awarded under the Enabling Statute, as it may be amended in accordance with its terms; provided that no such amendment shall affect any of the agreements with the Funding Parties unless the Funding Parties consent thereto. ar ' °' shall mean the parties to a particular agreement. `M, shall mean that certain Ordinance Establishing the Zoning Classification as PD, Planned Development, and C, Conservation, Districts on the Lake Nona Development Regional Impact as Adopted by City Council dated October 25, 2004 and November 11, 2004 at Official Records Book 7699, page 3056, of the Public Records of Orange County, Florida, as amended by that certain amendment dated July 25, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3662, of the Public Records of Orange County, Florida, as amended from time to time. IM Amefiftent" shall mean any amendment to the PD submitted to the City for review and approval, whether before or after the date hereof; provided, however, that LNLC shall not (and shall cause its affiliates not to) seek or approve of a PD Amendment which would preclude operation of the Permanent Facilities or development of the Burnham Campus for the Permissible Use. "anent Facilities" shall mean (i) the approximately one hundred seventy-five thousand (175,000) square feet of Gross Floor Area in one or more buildings on the Permanent Facilities Site for the use and benefit of Burnham employees and guests in accordance with the Permissible .Use, which is to be constructed pursuant to the Grant Agreement and the Development Obligation Agreement; provided, however that Burnham may reduce the Gross Floor Area of the Permanent Facilities by an amount not to exceed ten percent (10 %) without the unanimous approval of the Funding Parties; and (ii) all adjacent surface and subsurface infrastructure and utilities and all related on -site improvements, including parking, driveways, landscaping, hardsceping, signage and irrigation, but specifically excluding surface water runoff/drainagelidention /detention facilities. "PPermwe t Facilities Completion Date" shall mean the date that is thirty -six (36) months from the Effective Date of the Grant Agreement or such other date as may be agreed to in writing by the Funding Parties and Burnham. " Permaneut Facilities shall mean the approximately 12 acre parcel of real property within the Burnham Campus upon which the Permanent Facilities shall be located, as shown on Exhibit KC" to the Grant Agreement. "Permissible Us a, shall mean, subject to completion of the Permanent Facilities, uses permitted on the Burnham Campus, which shall be limited to the following and shall be subject to compliance with all applicable laws: (a) medical, life science and clinical research and development,. (b) light manufacturing in the life sciences or medical field, including diagnostics, devices, pharmaceuticals and reagents, (c) undergraduate, graduate and post - graduate education, including classrooms and lecture halls, (d) research facilities related to a medical hospital, (e) 12. OR WWALSB7M"?0.4 317%W= MU CN?iZOM 6:32 AM � r r ancillary related research - oriented healthcare and life science uses, and administrative uses related to the foregoing, and (t) support services for the foregoing which may include, but is not limited to, a cafeteria/restaurant, child day care center and fitness facility for use by Burnham's personnel and employees and Burnham's sublessees' personnel and-employees. el ' s" shall mean-all building, development and environmental permits necessary to the proper execution and completion of the Work which are legally required, including, without limitation, SPMP and site plan submissions, general building permits, street access permits, easements and all other permits, licenses, inspections, fees and the like required to complete the Permanent Facilities, unless specifically stated otherwise in the Construction Contract Documents, sewer (sanitary and storm), water, electrical power, telephone, data, cable television and gas tap fees regarding utility connections and extensions, utility meter installation and hook -up charges, and other charges assessed by the local entities having jurisdiction, permits for elevator, mechanical, plumbing, electrical and all other trade work; and all partial and final certificates of occupancy and other permits necessary to permit the lawful occupancy of the Permanent Facilities by Burnham. "emitted Exceutio�m�" shall have the meaning given such team m the Gift Agreement (Permanent Facilities) or Gift Agreement (Surplus Land), as applicable. °`Person" shall mean an individual, estate, trust, partnership, limited liability company, corporation, Governmental Authority or other legal entity. "Primps perations" shall mean the location in the State of Florida at which no less than eighty percent (80%) of Burnham's Florida employees are employed. "Prime Construction Contract" shall mean a Construction Contract with the Prime Contractor that is, in the case of the Permanent Facilities, consistent with the terms and conditions of the Development Obligation Agreement. " Trime Conte oar" shall mean either (i) a constriction manager operating "at risk" for the completion of the Work or (ii) a general contractor operating with a Stipulated Sum contract for the completion of the Work; either of which, in the case of the Permanent Facilities, will be engaged by the Project Manager to be responsible for constricting and/or managing the construction of the Permanent Facilities pursuant to the Prime Construction Contrail. The Prime Contractor for the Permanent Facilities shall oversee and be responsible for all Contractors performing Work on the Permanent Facilities Site, except, at the option of the Project Manager, the Cont metor(s) responsible for that portion of the Work related to earthwork, stormwater ponds and master drainage systems, master utilities, landscape and hadscape and equipment furnished by the Project Manager. "Prim' a Rate" shall mean the then - existing prime rate set forth in the Wall StrA Journal or comparable paper of national circulation. "l'rWgq Cost' shall mean all actual costs resulting from (a) amounts incurred with respect to the Design Professionals pursuant to the Design Contracts; (b) amounts incurred with respect to the Contractors pursuant to the Construction Contracts; (c) amounts incurred with respect to Vendors and Consultants pursuant to their contracts; (d) amounts incurred with respect to Architects pursuant 13. 0RL1WALEWM96479A 3175MM OHJ dN ?/!?2007 522 AM • e to their contracts; (e) fees and expenses for construction permits and approvals, Impact Fees, connection and capacity charges and the like; and (f) other costs or expenses (including attorneys' fees and expenses incurred after the Effective Date of the Grant Agreement), except for such fees and expenses as may be incurred by Burnham in any claim, lawsuit or proceeding against the Funding Parties, or any proceeding asserting a violation of any Federal, State or Local statue, law, code, ordinance, rule or regulation, or any proceeding relating to any Ewes or penalties assessed against Burnham in connection with the construction of the Permanent Facilities, or any fees attributable to any lobbying efforts), provided such costs are directly attributable to mataials and services necessary for planning, design, permitting, and construction of the Temporary Facilities or the Permanent Facilities or F&E installed within the Temporary Facilities or the Permanent Facilities. Iu addition, after Final Completion and after the laboratory facilities within the Permanent Facilities are at 100% completion based upon capacity for the 303 .lobs contemplated under the Business Plan and required under the Grant Agreem> ent, if there are Available Funds remaining in the Account, "Project Cost" shall also mean actual costs for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities), and if there are Available Funds remaining in the Account after payment of such CDD capital assessments for the Permanent Facilities Site, actual costs for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). Notwithstanding the foregoing, "Project Cost! ' shall not include costs or expenses for items or services that are not necessary for the planning, design, construction or permitting of the Temporary Facilities or Permanent Facilities or for payment of CDD capital assessments in accordance with the immediately preceding sentence, including without limitation entertainment, alcohol, travel or per diem beyond customary standards, and luxury accommodations. Project Costs shall be reimbursable by Draw Requests. "Project Engineer" shall mean the engineer retained by Burnham or by the Project Manager from time to time, in the case of the Permanent Facilities, in accordance with the Development Obligation Agreement, for the performance of the Work. "Project Mana ,er" shall mean LNBC or any other project manager retained by Burnham to manage the design and construction of the Permanent Facilities pursuant to the Development Obligation Agreement. "Provider" shall mean any Person providing Communications Services on or to the Burnham Campus or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or utilizing (e.g., leasing) the any of the properties within the Lake Nona DRI, or any portion thereof or any buildings or portions of buildings thereon, which Person may be, or may subsequently become, affiliated with LNLC. "Punchlist Items" shall mean those minor items which are at variance with the Construction Contract Documents and the Drawings and Specifications as of the Substantial Completion Date and which for achieving full completion in the aggregate will not exceed the Punchlist Period except as otherwise specifically provided in the Development Obligation Agreement, and which do not materially interfere with the use and occupancy of any part of the Permanent Facilities for its intended use. Prior to commencement of the Punchlist Period, the Architect and the Project 14, ORLIIREA6E6iOM79A 8176W= VW Q" 4%i2!= 632 AM ■ Manager shall prepare a written description of the form and scope of all Punchfist Items and a schedule setting forth the egimated time and value for completion of the Punchlist Items. "Punchlist Period" shall mean the period of time from the day after the Substantial Completion Date for each improvement to the date on which all Punchlist Items are resolved to the reasonable satisfaction of the Project Manager and Burnham, which period shall not exceed sixty (60) days, except that the Project Manager shall not be required to cause the completion within such time any items that are not reasonably capable of such completion (but shall be required diligently to use commercially reasonable efforts to cause the applicable Contractor or Consultant to commence and continue with such work as necessary to finish such items as soon as reasonably practicable), so long as the fad of the incompletion of such items does not materially interfere with the use and occupancy of any material part of the Permanent Facilities for its intended use. During the Punchlist Period, Bumham agrees to grant the. Project Manager, the Contractors and the Consultants reasonable access to the Permanent Facilities Site in order to accomplish completion of the Punchlist Items and perform any other services then required under the Development Obligation Agreement. I%Mg t Period" means the applicable reporting period as described on the schedule attached hereto as Edtlbit "C." `Research Park" or "Research Pgc at Lake Napa" shall the research parr to be developed by LNLC and located upon up to one hundred fifty (150) acres, inclusive of the Burnham Campus; provided, the ultimate size of and uses within the Research Park (except for the uses on the Burnham Campus which shall be the Permissible Uses) will be determined by LNLC based upon market demand. " Retainage' shall be applicable to all Construction Contmots and shall mean (i) ten percent (10%) of the total amount of any Construction Contract until such time as Fifty Percent (50%) of It he Work under said Construction Contract is complete; (ii) five percent (5 019) of the total amount of any Construction Contract after fifty percent (50019) of the Work is complete until Substantial Completion of the Work; and (iii) two percent (20/9) of the total amount of any Construction Contract after the Work has achieved Substantial Completion; provided however, there shall be no retainage for amounts due to Vendors. Upon final completion of the Tempon y Facilities or Final Completion, any remaining Retainage shall be distributed as provided in the Construction Contract and the Escrow Agreement. "Scone of Work" shall mean the construction of the Permanent Facilities; (i) substantially in accordance with the Construction Contract Documents, and (ii) consistent with the approved SPMP. I'Security Agreement" shall mean Exhibit "5" to the OWED Agreement. "S_,pace Program" shall have the meaning given such term in the Development Obligation Agreement. "Special Conditions" shall mean the conditions set forth on Attachment B to the Development Obligation Agreement. 15. 0rWVW'A1JWrMM79.4 817020078 OW ON 227/2007 832 AM "SpenddDown Soul&' shall mean the schedules for the timing of the use of the Grant Funds as described in the Grant Agreement, which schedules will be prepared by Burnham, with assistance from the Project Manager in accordance with the terms of the Development Obligation Agreement in the case of the Permanent Facilities. "SPMP" shall mean the final, non - appealable Specific Parcel Master Plan for the development of any portion of the Burnham Campus, as approved by the City. "Stipulated Sorg" shall mean a stipulated or fixed price, or guaranteed maximum price, for Project Costs under the Construction Contracts or purchase orders. The Stipulated Sum includes all amounts in Draw Zero for the Permanent Facilities. "Subeo Wor" shall mean any subcontractor in privity with any Contractor or any other Subcontractor, at any tier. "Subbgjiug; Restriction' shall mean that subleasing, and for -profit activities in the Permanent Facilities must be consistent with the Permissible Use and have the prior written approval of the Funding Parties, which consent shall not be unreasonably withheld, and, commencing on the fifth (5t) antversary of the issuance of a Certificate of Occupancy for the Permanent Facilities, must not comprise more than twenty -five percent (25 %) of the use within the Permanent Facilities based upon the total square footage of the Permanent Facilities as of the date of measurement. The foregoing limitation shall not begin until the fifth (5a') anniversary of the issuance of a Certificate of Occupancy for the Permanent Facilities in an effort to allow Burnham the time and opportunity to staff and occupy the Permanent Facilities and shall only apply during the term of the Ground Lease; provided, the foregoing shall not serve in any way to limit or terminate the obligation to comply with the Permissible Use which is intended to and shall run with title to the Permanent Facilities Site. "Sal 9omv19on" shall mean the level of completion of an improvement wherein such improvement has no material defects or deviations from the approved plans therefor and can be operated for its intended use as certified by the Project Engineer, and such improvement has received either a permanent or temporary certificate of occupancy such that Burnham may take possession of and ocwpy the improvement for its intended use or a certificate of completion or its equivalent from the appropriate governmental entity, as applicable. "Surplus sand" shall mean the Burnham Campus, other than the Permanent Facilities Site. "Targgt Construction Cost" shall mean the Grant Funds (after deducting from the Grant Funds all Project Costs expended, committed or budgeted for the Temporary Facilities) less the Contingency and less the Laboratory Allowance as determined at the conclusion of the Prehuftary Design Phase in accordance with the Development Obligation Agreement; provided, such amount may be adjusted following the Preliminary Design Phase in accordance with the terms of the Development Obligation Agreement. "Teen ogM Facilities' means the temporary facilities for Burnham's Florida operations to be constructed pursuant to a lease and affiliated agreements between Burnham and Iessor 16. oWMAUSsrAM79a 31M=0WdhJzr =74322AM Independent Blood and Tissue Services of Florida, Inc. at 8669 Commodity Circle, Orlando, Florida 32819 (approximately 14,000 square feet) and warehouse space at 8663 Commodity Circle, Orlando, Florida 32819 ( approximately 300 square feet) pursuant to the terms and conditions of the Grant Agreement, or such other site in Orange County, Florida as reasonably agreed by Burnham and the Funding Parties. "Tier 1 Funds" shall mean the initial tier of the grant Funds in the total amount of $70,000,000, to be funded pursuant to the terms of the Grant Agreement, of which $7,600,000 shall be contributed by LNLC (10.9 %), $29,700,000 shall be contributed by City (42.4 0/9) and $32,700,000 shall be contributed by County (46.7 %). "Tier 2 Fti ds' shall mean the second tier of the Grant Funds in the total amount of $6,000,000 to be funded pursuant to the terms of the Grant Agreement, of which $3,000,000 shall be contributed by City (50 %) and $3,000,000 shall be contributed by County (50 %). "Tier 3 Funds" shall mean the third and final tier of the Grant Funds to be fimded pursuant to the terms of the Grant Agreement, of which $5,000,000 shall be contributed by County (100 %). ,'TrM2QggLqaj=g4 Fee CrRlits" shall mesa any transportation impact fee credits that may be generated from or in connection with the development of the Burnham Campus or the Lake Nona DRI. "Tries" shall mean the average daily trips in accordance with the Development Order then in effect, as the same may be amended from time to time. "Vendor" shall mean any vendor of construction materials, including but not limited to fixtures and equipment, with which the Project Manager, Burnham or any Contractor has a direct contract for materials, fixtures or equipment to be used in the construction of the Temporary Facilities or Permanent Facilities. "Waivers and Releases" shall mean the following items from the Vendors, Consultants, Design Professionals and Contractors for which payment is requested, as the case may be: (a) fully executed partial waivers and releases of claims in the amount of the immediately prior payment made by the Funding Parties (through the Escrow Agent) to Burnham and (b) conditional waivers for the payment amounts contained in the current Draw Request, in each case, for the Vendors, Consultants, Design Professional or Contractor, excepting any claims that may remain in dispute. "�arranty Period" shall mean the period of time during which the Contractor's warranty is in effect under the Construction Contract Documents. "gLrk" shall mean all obligations, duties, and responsibilities assigned to, or undertaken by, a Contractor pursuant to the Construction Contracts, required to complete construction within the Temporary Facilities or to complete construction of the Permanent Facilities in accordance with the Construction Contract Documents. 17. ORLIM IMflOt6MA 3j M del2F"M? e;d2 AM • ■ e it ■ Burnham Institute for Medical Research BUSINESS PLAN FOR EXPANSION to ORLANDO FLORIDA October 2006 I EXECUTIVE SUMMARY 4 1.1 Overview 4 2 MISSION OF BURNHAM INSTITUTE FOR MEDICAL RESEARCH 4 2.1 Background on Burnham Institute for Medical Research 4 2.2 Research Centers 5 3 THE STATE OF FLORIDA 6 4 ACTION PLAN 6 4.1 Negotiate enabling agreements with the State of Florida 6 4.2 Negotiate an agreement with the State Board of Administration 6 4,3 7 Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; 7 a) the build out of a temporary facility at the Florida Blood Center, and 7 b) construction of it 175,000 square foot state -of -the -art facility, and 7 c) conveyance of 50 acres of land at Lake Nona 7 d) commitment for $15MM in local philanthropic support for B17V1R 7 e) commitment for S10MM In funding from the University of Florida 7 i) commitment for $27MM in funding from the University of Central Florida 7 g) access to human time samples generated by Florida Hospital and ORH 7 4.4 Develop key infrastructure for Burnham Florida 7 4.5 Identify key senior appointments 7 4.6 Implement it Collaboration Program 7 4.7 Implement a Graduate Program 8 5 ORGANIZATIONAL PLAN 8 511 Scientific Staff 8 512 Adminlstrative Staff 9 2 A INFRASTRUCTURE DEVELOPMENT 10 6.1 Facilities t0 6.2 Capital Equipment 10 6.3 Construction of Permanent Campus 10 7 INITIAL BUDGET 12 7.1 Statement of Activities (in $000'x) 12 * The total amount contributed by State will be $155472,000 any variation in the budget summaries is the result of rounding 12 7.2 Balance Sheet On 00018) 13 7.3 Summary of Cash Flows (in 000'x) 14 7.4 Revenue Assumptions 15 7.5 Expense Assumptions 16 7.6 Major Capital Expenditures - Stub Period and Year 1 17 7.7 Use of Florida Suppliers 17 8 RECRUITING 17 8.1 Recruitment Process 17 8.2 Hiring Schedule 18 3 9B 5 1 EXECUTIVE SUMMARY 1.1 Overview The Board of Trustees and Executive Management team at Burnham Institute for Medical Research ( "BIMR') view the expansion of our research efforts to a Florida campus as a unique opportunity for the State of Florida (`Florida ") and BIMR. The Orlando, Florida site will be a fully integrated part of BIMR both operationally and culturally. We will take this opportunity, and the resources that it provides, to recruit world -class scientists to work with us In the fields of cancer, Infectious and inflammatory disease and neurosciences and aging. In addition this expansion affords us the opportunity to launch an additional research program In the area of diabetes and obesity. We also plan to develop three technology cores that will enable the transition of our scientific discoveries into the clinic. Specifically, the Orlando campus will have cores In pharmacology, in vitro and in vivo toxicology, chemistry, library screening and in vivo Imaging. Our vision is that a biooastal Burnham Institute for Medical Research will be intemationslly recognized and be to Orlando what University of California at San Diego was to La Jolla, the catalyst for the creation of a vibrant biotechnology Industry. 2 MISSION OF BURNHAM INSTITUTE for MEDICAL RESEARCH Our mission of BIMR is to conduct world -class collaborative research to cure human disease, improve quality of life, and thus create a legacy for our employees, partners, donors and community. We conduct basic biomedical research and our philosophy is grounded in the recognition that most breakthroughs In fighting human disease come from basic scientific investigations. Moreover, our emphasis on basic research, as opposed to clinically applied research, means that our discoveries often reveal fundamental concepts and principles of cell biology that have broad relevance in a number of diseases. The Institute is a 501(c)3 non - profit corporation; formerly the La Jolla Cancer Research Foundation, with an annual budget of approximately $90 million. Of the 725+ employees at the Institute, more than 500 are scientists, and over 200 of those are Postdoctoral Fellows. Currently BIMR Institute has 71 faculty members. The outstanding quality of our fatuity allows them to very successfully compete for research funding from various government agencies, particularly the National Institutes of Health (NIH). Federal grants make up about 80% of our operating budget. Other Important sources of funding Include private foundations, revenue from technology licensing, and philanthropy. Our research activities take place in nine buildings geographically located in the heart of San Diego's biomedical research community on Torrey Pines Research Mesa. Within a two -mile radius of our campus, our scientists enjoy collegial access to neighboring Institutes, Including Salk Institute for Biological Studies, The Scripps Research Institute, University of California at San Diego, and San Diego's thriving biotechnology community, the world's fastest growing biotechnology community. 2.1 Background on Burnham Institute for Medical Research Burnham Institute for Medical Research celebrates Its 3e anniversary this year. Founded in Le Jolla, California, as a non -profit medical research institute focused on cancer research, BiMR has grown to a 725 plus person effort, with an annual operating budget of approximately $90 million. Our mission at BIMR is to reveal the fundamental molecular mechanlsms of disease, and to use that knowledge to devise the proto -type therapies of tomorrow. This mission Is undertaken through a highly collaborative style of research that merges the talents of biologists with chemists, biophysicists, engkteers, and computer scientists, creating a symphony of scientific synergy that emphasizes team -based approaches for tackling the great unmet medical challenges of today. Our mantra is "From Research, the Power to cure." V 9B BiMR consistently ranks among the top 20 organizations for the Impact of our research publications, and Is among the top 0.04% organizations worldwide for citatlons received per publication, according to the Institute for Sclentitlo Infonnation. Though journal publications are our chief product, during our 30 year history, BIMR scientists have also contributed directly or indirectly at least 5 approved therappies and several diagnostic tests that are currently In use, saving and extending Ives; plus, another 9 innovative therapies are currently in clinical testing at over 60 medical centers around the world. Burnham insfflute for Medical Research is an organization on the rise. Due to the extremely high quality of our scientific staff. and our highly collaborative culture, BIMR has enjoyed 5 consecutive years of double -digit growth in Its NIH grant base, at a time when NIH budgets have been flat or in decline, BIMR currently ranks 70' In the nation among all private research institutes In terms of NIH funding. NIH grants account typically for 80% of our annual operating budget. According to the Center for Advanced Research, BIMR is the most efficient private research Institution In the nation, covering 90-83% of its operating costs through competitive grants awarded to Its scientists. 2.2 Research Centers Research at BIMR is organized into 3 disease- focused research centers, bolstered by 3 technology centers. The Cancer Research Center constitutes approximately half the effort BIMR has been a member of the National Cancer institute (°NCI') designed Cancer Centers program for 27 years, In the category of "basic science" cancer centers. The Cancer Research Center has also been designed by the NCI through special grants we receive as: (1) one of eight centers for cancer drug discovery; (2) one of four centers for cancer bioinformatics, (3) one of six centers for defining the molecular signatures of cancer for generating more powerful diagnostic test, In partnership with neighboring organizations Including Sidney Kimmel Cancer Center, and (4) one of four centers for cancer bionanotechnology, also in partnership with neighboring organizations. Among the accomplishments to come from Burnham scientists for cancer are: (1) the laboratory -� technique known as the SLISA, which forms the basis for the PSA (Prostate Specific Antigen) test and many other clinical laboratory tests; (2) the enabling technology for the world's first biotech drug for cancer, BpogenT , used to support blood cell production in patient undergoing cancer therapy; (3) one of the first vitamin -based drugs (Twgretln`r� for cancer, that taps into natural blopathways for fighting cancer, and (4) the world's first DNA -based drug for cancer to successfully complete final Phase III clinical trials (decision on approval due this summer from FDA). The Date E Webb Center for Neuroscience & Aging Research focuses on degenerative diseases associated, with aging, particularly neumdageneration (Abftlrners; Parkinson's; ALS), stroke, heart disease, and diabetes. Research In this Center is aimed at either protecting cells from age-associated loss, or replacing lost cells through stem cell technologies. Cell protection strategies to emerge from the laboratories of Burnham scientists include: (1) Memantine (Namanda`r� a cytoprotective drug approved for Alzheimer's disease and in testing for glaucoma and stroke (2) two drugs used to prevent stroke and heart attack by inhibiting blot clot formation; and (3) a nerve repair therapy (Neuroguardrm) anticipated to gain FDA - approval this year. Through special grants awarded by the NIH, BIMR has been designated as one of four centers for devising new therapies for cardiovascular disease using bionanotsohnology. With regards to cell replacement, BIMR was an early entrant Into the field of stem cells and regenerative medicine, launching a research division dedicated to this exciting but young field of medical Inquiry 9 years ago. Today, the stem cell effort at BIMR constitutes the activities of nearly 100 scientists, perhaps the largest in the nation. Through special grants awarded by NIH, BIMR has been designated as one of six national exploratory centers for human embryonic stem cell research, and one of five centers for training the nation's scientists how to work with human embryonic stem cell research. To establish a safe haven for performing research on all types of stem cells, we established in 2002 the Stem CON Research Center, which includes the complete Infrastructure for deriving new embryonic stem cell lines and making them available to the general research community for regenerative medicine research. Mori • PIR , The Infectious & Inflammatory Disease Center studies infectious agents and the Immune system's mechanisms for defense. Research in this new Center at BIMR focuses both on devising new treatments for incurable infectious diseases, where the Immune response fails to eradicate pathogens, and on Investigations of autolmmune diseases (e.g. Rheumatoid A ld0s; Inflammatory Bowel Diseases; Lupus; Multiple Sclerosis) where the immune response is excessive and turns on the patient's own tissues. Discoveries to come from this Center include (a) elucidation of the genetic basis for familial susceptibility to juvenfle diabetes and rheumatoid arthritis, finding a genetic difference in an lmmunoregulatory gene and (b) determination of the 313- structure of the Anthrax Toxin and generation of the world's most potent chemical inhibitors of Anthrax Toxin using NMR -based drug design, providing a rapid means of neutmltdng this agent of bloterrodsm. BIMR's technology centers include: (1) the Center for Chemical Genomics, one of ton NiH- funded national centers for establishing high - throughput robotic systems for screening large collections of chemicals and enabling rapid drug discovery, (2) the Center for Proteolydc Padrways, one of four NIH- funded national research resources -devoted to developing innovative proteomirs technologies for discovering new biopathways and new targets for diagnostics and drug discovery; and (3) the Center for Computational Modeling, one of two national centers funded by NIH for devising innovative computer algorithms for predicting the 3- dimensional structures of proteins and generating computational tools for molecular modeling, thus providing insights Into the functions of the genome and laying a foundation for drug discovery. 3 The State of Florida In an effort to promote, stimulate, develop and advance business prosperity and economic welfare. of Florida and Its residents, the Florida Legislature appropriated $200 million of innovation Funds (the "State Funding') to support the establishment of a biotechnology industry In Florida. The Institute has been granted $155,272,000 of the innovation fund to be applied towards the operational cost needed to support the Orlando site until it becomes self sufficient In its tenth year of operation. The remainder of the required operational funds have been provided by a consortium consisting of Orange County, the City of Orlando, Lake Nona Land Company LLC, University of Florida, University of Central Florida, Florida Hospital, and Orlando Regional Hospital, 4 Action Plan The following key steps will constitute a plan of action for the establishment of Burnham Florida: 4.1 Negotiate enabling agreements with the State of Florida An agreement to provide $155,272,000 million in operational funds that we will require over the first 10 opera and which has been negotiated with e based e milestones that BIMR will need to meet to access these 4,2 Negotiate an agreement with the State Board of Adminlstradon An agreement that provides the mechanism, structure, and strategy for Investment of the State funds and their release to BIMR has been negotiated and executed with the We Board of Administration (SBA). 90 1 4.3 Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square foot state -of- the -art facility, and o) conveyance of 50 acres of land at Lake Nona d) commitment for $15MM in local philanthropic support for BIMR e) commitment for $10MM in funding from the University of Florida Q commitment for $27MM In funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORH have Jointly and severalty been negotiated and executed with Orange County, City of Orlando and Lake Nona Land Company LLC, and the universities and hospitals listed above. 4,4 Develop key infrastructure for Burnham Florida This will occur in two phases. Phase t will be to build out, approximately 14,000 square feet of temporary lab space in the Florida Blood �.- Center (FBC). Lease for the space at the temporary space at FBC has bean executed.. We would hope to take up occupancy In this space in April of 2007. �- Phase 11 will be a completion of the permanent 175,000 square foot facility at the Lake -Nona site in Orlando, We have engaged Lake Nona Land Company LLC as the project manager for the construction of the permanent fwMty and under a very aggressive timeline estimate that we could take up occupancy early In 2008 4.5 Identify key senior appointments Key appointments V40 be the Scientific Director and the Vice President of Operations. These two individuals will work as a team to build the scientific and administrative support teams needed to be successful in Florida. The COO and the VP Business Development have been designated by Awardee as the senior level points of contact for economic development activities related to Awardee's Florida operations. 4.6 Implement a Collaboration Program Burnham Orlando will present many valuable opportunities for collaborations with research efforts both within Florida and throughout the United States. Our goal Is to develop effective collaborations with the University of Florida, University of Central Florida, Florida Atlantic University, MD Anderson and other research groups wherever possible. This will initially require information dissemination Including seminer programs that describe the growing capabilities of Burnham Florida to potential collaborators, as well as printed and web -based materials. ITT01, Several modes of collaboration are predicted: • Peer -to -peer collaborations that is common throughout the academic research model. • Access to the technological capabilities will enhance the outside institutions' chances of success and provide a competitive edge. • investigators wish to collaborate on either preclinical or clinical development of a compound. These proposals will be examined based upon scientific merit. The goal is to leverage the joint effort to generate extemal funding to support the collaborative activities at both participating institutions. 4.7 Implement a Graduate Program The Burnham Institute plays a very importent.roie In the education of a large number of future scientists through the training of graduate students. Burnham Florida will establish a Ph.D. graduate program, in conjunction with our Florida University partners, based on the model developed and operated in La Jolla. This program Is described below. The Institute started Its graduate program in March 2006. The graduate program offers Ph.D. degree in two subject areas — Integrated and Applied Biosciences and Molecular Medicine. Integrated and Applied Blosdences Is uniquely structured to offer students research training in fundamental integration of biology, chemistry and physics while Molecular Medicine is an expansion of the joint program with UCSD. The Institute also partners with the University of Canfomfa at San Diego In a joint graduate training program In molecular pathology that supports the training of Ph.D. students. Many Burnham feoutty members have appolntments and teach at UCSD and other university departments. Currently, approximately 30 graduate students obtain their primary scientific training at the Institute. Graduate students make a vital contribution to the Institute's research effort. In 2001 -2002, approximately 32 publications from the Institute named graduate students as coauthors. We envision that we will partner in much the same way with UCF and/or OF to develop an exciting graduate program that will train the scientists of the future. 5 ORGANIZATIONAL PLAN Burnham Florida will be operated as an unincorporated division of BIMR All employees will be subject to BiMR's Administrative Policies and all Faculty will also be subject to BIMR's Bylaws. The Administrative Policies and Bylaws will be modified and Implemented In view of Florida state and local law and regulations. Policy, programmatic and recruitment decisions will be made by the Executive Management Team. 6.1 Scientific Staff The Scientific Director will have responsibility for all scientific operations at the Florida campus. He /she will report directly to the President and CEO and win co- ordinate Florida campus activities with the Le Jolla -based Center Directors including all Faculty level recruiting and hiring. The Scientific Staff recruitment will be initiated by the Scientific Director and will follow Burnham guidelines for recruitment of faculty or Principal Investigators (PI's). This Includes seminar presentations, visits with and assessment by Burnham Le Jolla faculty, letters of recommendation, and a written summary of their proposed research activities. It Is anticipated that heads of each of the discovery research programs and technology cares will be recruited initially and that these department heads will report to the Scientific Director. The program heads will act as anchors for future hiring within each program or technology core. 9B 11 Start -upr packages for Pi's may include research support for up to three years. It will be expected that ail faculty will develop sufflolent support after three years to sustain their individual research programs, Including salaries. It is likely that the biomedical faculty will be recruited primarily from. academia, whereas the technology and drug discovery faculty will be recruited from a mix of academic laboratories as well as biotechnology and pharmaceutical corporations. The Scientific Director and the Technology Center Director will both be faculty members. We are looking at the Scientific Director as being a luminary In his/her field and that will also direct a research laboratory. The Technology Center Director will be responsible for putting Into place all of core facilities. The first cores In the temporary facility will be chemistry, genomics, and in vitro pharmacology. Further research support staff will be resulted by senior faculty as well as by statewide and nationwide searches. 5.2 Administrative Staff The Vice - President, operations will have responsibility for all administrative, facility and support operations on the Florida campus. He /She will report directly to the La Jolla based BIMR Executive VP and COO and will co- ordinate the Florida campus activities with the La Jolla based department heads. He/She wip be responsible for hiring the following administrative personnel. The Vice President, Finance will have responsibility for accurate financial reporting, Internal controls, general accounting systems, accounts receivablelpayable and payroll functions, as well as procurement (purchasing). In addition, the Vice President will be (a) the designed representative for establishing Awe dee to responsible for coordination with the Office of Supplier Diversity (b) responsible g Implementing a policy of making purchases from Florida vendors, to the extent it Is cost effective and scientifically sound, and (c) responsible for ensuring that appropriate liability insurance covering Burnham Florida has been obtained. We anticipate that the VP of Finance will be hired within 12 months of the Effective date of the Innovation Fund Agreement. The Director, Human Resources will be responsible for (a) implementing BIMR employment policies, including BIMR's ponces on equal opportunity employment, (b) Implementing a program to conduct workforce recruitment activities at public and private colleges and universities and community colleges in Florida which request the participation of Burnham Florida, (c) establishing a policy of awarding preference in employment to residents of Florida for administrative and scientific support positions, and (d) Implementing a system for ensuring use of the intemet -based Job listing system of the Agency for Worldbroe Innovation in advertising employment opportunities. The Director, office of Sponsored Programs will have responsiblyd for the pre- and post -award financial administration of grants and contracts from government and industry. in addition, the Director will be responsible for establishing and implementing systems for tracking and reporting on (a) the number and dollar value of research grants to be performed by Burnham Florida that are obtained from the Federal Government or sources other than Florida, (b) the percentage of total research dollars received by DIMR from sources other than Florida which is used to conduct research activities by BIMR In Florida, (c) the total amount of funding received by BIMR from sources other than Florida, and (d) tracking and reporting annually the amount of non - Florida funding obtained by Burnham Florida for each full -time equivalent tenure -track faculty member employed at Burnham Florida. The Director, Business Development will have responsibility in conjunction with the Vice President of Business Development for establishing a technology out- ligensktg program, in addition, the Director in conjunction with the Vice President, Business Development wM'be responsible for (a) annually updating the Burnham Florida business plan, (b) patenting Inventions oonoeived or reduoed to practice using Burnham Florida facilities (c) negotiation and execution of licensing agreements involving technology developed by Burnham Florida; (d) negotiation and execution collaborative agreements with colleges and universities in Florida and with research insdtutlons in Florida, and commercial third parties. The Vice President, External Relations will have responsibility in conjunction with the La Jolla based BIMR Executive Vice President of Development for planning and implementing BIMR's philanthropic activities in Florida. The Director will be responsible for marketing naming opportunities for charitable donations from persons or entitles involving the right to have all or a portion of the Florida facility named for or in the memory of any person, living or dead, or for any entity. 6 INFRASTRUCTURE DEVELOPMENT 6.1 f=acilities Development will occur in two phases. Phase I will be to build out, approximately 14,000 square feet of temporary lab space In the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been executed. We would hope to take up occupancy in this space In April of 2007. Phase II will be a completion of the permanent 176,000 square foot facility at the Lake Nona site In Orlando.. We have engaged Lake None Land Company LLC as the project manager for the construction of the permanent WIty and under a very aggressive timeline estimate that we could take up occupancy early in 2008 6.2 Capital Equipment Highly specialized capital equipment will be necessary to enable the research programs. The research programs will require capital support for molecular and cell biology, including biochemistry and tissue culture, as well as structural biology. This will require centrifuges, CO2 incubators, tissue culture hoods, refrigeration and freezer units and an advanced microscopy core Including confocal and digital deconvolution systems, an automated cell sorter, NMR and robotic protein crystallization systems. The technology cores each require specialized cutting edge equipment. The chemistry core will have a structurally and functionally diverse chemical fibrary will be acquired to achieve a competitive starting point, likely purchased from commercial sources. Analytical chemistry facilities are essential both to confirming the chemical characterization of drug screen actives, as well as for the generation of phermsookinetic data by the current state -of- the -art methodology, liquid chromatography mass - spectrometry (LC -MS), high -field NMR and supporting computational capabilities. Core systems pharmacology and animal physiology equipment will Include hematology and clinical chemistry auto-analyzers, HPLC and mass - spectrometry, ECG and respiratory physiology equipment. The functional genomics core will provide robotic liquid handling instrumentation and tissue culture facilities for genome -wide lentivirus -based sIRNA screening. In vivo Imaging instrumentation for rodent studies will include an MRI, and a bioluminescence and CT scanner. 6.3 Construction of Permanent Campus The permanent campus will be built on a 50 -acre campus located at Lake Nona, Orlando. The campus will comprise 175,000 square feet of laboratory and administrative space. The facility will be designed, and constructed by LNLC to enable the BIMR to apply for LEEDS ceitification The 50 acre campus will be master planned for the future growth of the Florida campus and will include connections to the neighboring university campus and scientific communities. The site will be master planned in a manner to achieve a high level of social interaction among the scientific staff. The laboratory building will be designed for a high degree of flexibility in both the structure and the laboratory support infrastructure. The mechanical, plumbing, piping, and electrical systems will be designed for the Initial designed space, but also for easy access for maintenance and fixture modifications. 10 i 98 Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, microscopy, imaging, refrigeration farms, cold rooms, scientific staff offices, library, server and disk storage space, high speed and wireless telsoommunkations, mestinglseminar rooms, cafeteria, outreach activkies and science support staff. 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The large structural bays with heavy floor loading capabilities will allow for a great variety of laboratory space layouts as well as min� any vibration issues. The mechanical, plumbing, piping, and electrical system will be designed for the initial designed space, but also with an intent toward reasonable access for maintenance and firture modifications. Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, misayscopy, imaging, robotic sAugh throughput scarmning, refrigeration farms, cold rooms, scientific staff offices, hbrary, information technology and communications infrastructure, meeti4seminar rooms, cafeteria, outreach activities and science support staff. The Minimum Requirements shall include meeting the standards set forth in the definition of Permanent Facilities and compliance with any and all applicable conditions of permits and land approvals, all sufficient to obtain a CO. ORlt1RE11L�91160647YA 317621 W DW d" 7f12i100 &M AM \� i F"bit 6401 Reporting Schedule Report Periods: Stub period of date of initial disbursement of funds under the OTTED Agreement through June 30, 2007 Annual period of July 1, 2007 through June 30, 2008 Annual period of July 1, 2008 through June 30, 2009 Annual period of July 1, 2009 through June 30, 2010 Annual period of July 1, 2010 through June 30, 2011 Annual period of July 1, 2011 through June 30, 2012 Annual period of July 1, 2012 through June 30, 2013 Annual period of July 1, 2013 through June 30, 2014 Annual period of July 1, 2014 through June 30, 2015 Annual period of July 1, 2015 through June 30, 2016 Annual (or stub) period of July 1, 2016 through the Term of the Ground Lease ORLTMAL6OM5479.4 317620M MU dN ZOPM 822 AM • r M --N •�,� ,c. A � EXHIBIT -Mil PERIVII rrjZD EXCEPTIONS -N 2. Taxes and assessments for the year 2007, which are not yet due and payable. 3. Orange County/Lake Nona Corporation Water and . Wastewater Utilities Agreement recorded August 25,1986 in Official Records Book 3814, Page 2159; First-Amendment recorded August 25, 1988 in Official Records Book 4008, Page 3245; Lake Nona Utility Agreement with the City of Orlando recorded. July 5, 1994 in Official Records Book 4764, Page 1185; First Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2327; Second Amendment recorded November 20, 1998• in Official Records Book 5620, Page 2331; and Third Amendment recorded September 29, 2000 in Official Records Book 6097, Page 4121, all in the Public Records of Orange County, Florida. 4. Use Agreement with Orange County recorded February 9, 1987 in Official Records Book 3860, Page 704, Public Records of Orange County, Florida. 5. Declaration and Dedication of Avigation 1?asement recorded February 29,1988 in Official Records Book 3961, Page 1089, Public Records of Orange County, Florida. 6. Declaration of Covenant and Waiver dated November 12, 1987 and recorded _ February 29, 1988, in Official Records Book 3961, Page 1078, Public Records of Orange County, Florida. 7. Lake Nona Transportation Impact Agreement recorded February 14, 1990 in Official Records Book 4157, Page 882, Public Records of Orange County, Florida. 8. Tit at certain unrecorded Amended and Restated Orlando. Utilities Commission/Orange County Water Service Territorial Agreement dated May 4, 1994. 9. That certain unrecorded City of Orlando /Orange County Wastewater Service Territorial Agreement dated May 4, 1994. 10. Stipulated Final Judgment recorded August 5, 1994 in Official Records Book 4778, Page 1036, under Can No. CI -91 -692 and CI -91 -4738; and First Amendment to Schedule A recorded November 20, 1998 in Official Records Book 5620, Page 2336, all in the .Public Records of Orange County, Florida. 11. Developer's Agreement by and between City of Orlando, Lake Nona Corporation and Orlando Utilities Commission recorded July 16, 1996 in Official Records Book 5090, Page 924, Public Records of Orange County, Florida. MIMALEsn UM5 46 31TUA ose 0HJ dN Yl4=7 8*4 AM Lira • 12. That certain unrecorded Development and Funding Agreement for the Central Florida Greeneway Interchange at Lake Nona Planned Development by and between the City of Orlando and Lake Nona Land Company dated June 18, 2001, as may be amended from time to time. 13. Notice of Establishment of the Boggy Creek Improvement District, a Community Development District recorded December 20, 2001 in Official Records Book 6417, Page 3725; .Notice of Boundary Amendment recorded January 12, 2004 in Official Records Book 7261, Page 3561; Notice of Boundary Amendment of the Boggy Creek. Improvement District recorded March 31, 2006 in Official Records Book 8559, Page 221, all in the Public Records of Orange County, Florida. 14. Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District recorded February 7, 2002 in Official Records Book 6452, Page 6958; First Amendment to Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation of Various Projects and Services recorded April 11, 2003 in Official Records Book 6865, Page 2178; Second Amendment to Interlocal Agreement between the City of Orlando, Florida and the Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation on Various Projects and Services, recorded August 11, 2006 in Official Records Book 8800, Page 4934, all in the Public Records of Orange County, Florida, all in the Public Records of Orange County, Florida. 15. Ordinance Establishing a Community Development District, to be known as the Boggy Creek Improvement District recorded June 27, 2002 in Official Records Book 6554, Page 1847; Ordinance Expanding a Community Development District recorded April 11, 2003 in Official Records Book 6865, Page 2169, each in the Public Reoords of Orange County, Florida; an unrecorded Ordinance Contracting the Boundaries of the Community Development District, Known as the Boggy Creek Community Development District [sic]; Providing a Severability Clause; and Providing an Effective Date, dated February 13, 2006, 16. An Ordinance of the City of Orlando, Florida Amending and Restating the Development Requirements for the Lake Nona Planned Development approved by the City of Orlando on October 25, 2004 and recorded November 12, 2004 in Official Records Book 7699, Page 3056; An Ordinance of the City of Orlando, Florida, Amending the Development Conditions of the Lake. Nona Planned Development Zoning District recorded August 10, 2005 in Official Records Book 8120, Page 3662, all in the Public Records of Orange County, Florida. 17. City of Orlando Third Amended and Restated Development Order for the Lake Nona Development of Regional Impact DRI2005- 00001, dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, Public Records of Orange County, Florida, as may be amended from time to time. ORLIVIFALes 60475.E 47 317$ZWU OW Ald Z2MO777 8751 AM 99 'I ' f _ 18. Interlocal Agreement among the Boggy Creek Improvement District, the Myrtle Creek Improvement District and the Greenway Improvement District Regarding the Construction, Management and Financing of Certain Infrastructure Improvements, recorded May 25, 2006 in Official Records Book 8663, Page 1398; First Amendment to Interlocal Agreement among the Boggy Creek Improvement District, the Myrtle Creek Improvement District and the Gree way Improvement District Regarding the Construction, Management and Financing of Certain h&ustructare Improvements, recorded August 2, 2006 in Official Records Book 8782, Page 3865, Public Records of Orange County, Florida. 19. Assigmnent and Agreement Regarding Development Rights and Obligations by and among Lake Nona Property Holdings, Inc., as Trustee under that Certain Land Trust Agreement Dated as of March 5, 1996, Lake Nona Land Company, Lake Nona Estates I, Inc. and Lake Nona Property Holdings,. Inc., recorded February 18, 1997 in Official Records Book 5202, Page 4038, Public Records of Orange County, Florida. 20. Cattle leases, if any; provided same shall be terminable upon thirty days' notice. 21. Master Declaration (Non Residential) for Lake Nona South, executed by Lake Nona Land Company, LLC to be recorded in the Public Records of Orange County Florida.. 22. Any other matters contemplated under the goveming contract. -� 23. The following Restriction, contained in the Special Warranty Deed to County for the Permanent Facilities Site: "[TIE TO SPECIFIC SECTION] Subject to a right of reverter in the Grantor that may be exercised only in the event the following conditions have occurred: (a) (i) the ground lease from Grantee to Burnham Institute for Medical Research ("Burnham' executed simultaneously herewith, as evidenced by a Memorandum of Ground Lease recorded simultaneously herewith, has terminated without Burnham's exercising its option to purchase the Property on the terns thereunder; or (ii) the Ground Lease has terminated, Burnham has exercised its option to acquire the Property and Grantee has exercised its right of reverter granted to Grantee at the time of conveyance of the Property to Burnham, if applicable, and (b) Grantor has paid Grantee and the City of Orlando all sums due to each from Grantor under the Funding Parties Agreement executed simultaneously herewith; then in that event upon filing in the Official Records of Orange County, Florida of an affidavit by the Grantor averring the satisfaction of the above conditions, fee simple title to the Property shall revert to the Grantor and Orange County shall deliver a statutory county deed to the Grantor. This right of reverter shall automatically expire upon the expiration of the right of reverter created in favor of Grantee at the time of conveyance of the Property to Burnham without (Grantee's having exercised same or if the Property is conveyed to Burnham more than fifteen (15) years after the date hereof." 0RL11R8ALMSr*W75A 48 31 M OU DHJ dF j ZWJ2007 e.'34 AM 98 I... The following two items which shall be as nermitted Ed in accordance with tie terms of the Gift Ag Mt (Eenmanent Facilities Sita. 24. Development Agreement by and among Lake Nona Property Holdings, LLC, Lake Nona Land Company, LLC and Orange County, Florida, recorded in Official Records Book , Page _ , of the Public Records of Orange County, Florida. The following Easements shall be as ,penau4gd and in accordance with the terms of the Gift Agreement, 25. Temporary Access Easement Agreement in favor of the City of Orlando, Florida, recorded in Official Records Book. , Page , of the Public Records of Orange County, Florida. 26. Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate utility provider(s) recorded in Official Records Book , Page , of the Public Records of Orange County, Florida, 27. Drainage Easement in favor of the Lake Nona Land Company, LLC recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 28. Non - Exclusive Access, Utilities and Drainage easements in favor of Lake Nona Land Company, LLC (Entry Road System) recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 29. Temporary Construction Easement in favor of Lake Nona Land Company, LLC (Entry Road System) recorded in Official Records Book Page , of the Public Records of Orange County, Florida. 30. Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate communications provider recorded in Official Records Book , Page , of the Public Records of Orange County, I Florida. 0aMVWAW9 M"?6.e 49 aITOW is ONJ 44 zrtaMY eat rod Till, LAKE NONA SOUTH (BURNHAM SITE — PHASE 1) DESCRIPTION: That part of Section 26, Township 24 South, Range 3.0 East, Orange County, Florida, described as follows: Commence at the Southeast corner of the Southeast 1/4 of said Section 26; thence N89 11738 "W along the South line of the Southeast 1/4 of said Section 26 for a distance of 2685.48 feat to the Southwest corner of said Southeast 1/4 of said Section 26; thence S86057130"W along the South line of the Southwest 1/4 of said Section 26 for a distance of 1468.22 feet; thence N00100100"W, 478.12 feet; thence N06 °43'58 "E, 105.88 feet to the POINT OF BEGINNING; thence N01 °41'57 "W, 577.73 feet to a point on a non - tangent curve concave Northerly having a radius of 3530.00 feet and a chord bearing of N71155'1 8"E; thence Easterly along the are of said curve through a central angle of 07 °43'15" for a distance of 475.68 feet to the point of tangency; thence N68 °03141 "E, 11.90 feet to the point of curvature of a curve concave Southerly having a radius of 40.00 feet and a chord bearing of S77 °24'16 "E; thence Easterly along the are of said curve through a central angle of 69 °04106" for. a distance of 4822 feet to the point of tangency; thence S42 °52113 "E, 684.67 feet to the point of curvature of a curve concave Westerly having a radius of 40.00 feet and a chord bearing of S09 008102 "W; thence Southerly along the are of said curve through a central angle of 104 °0031" for a distance of 72.61 feet to the point of compound curvature of a curve concave Northerly having a radius of 1420.00 feet and a chord bearing of S78 °56'08 "W; thence Westerly along the are of said curve through a central angle of 35 °35'41" for a distance of 882.17 feet to the point of tangency; thence N83 °16102'W, 94.57 feet to the POINT OF BEGINNING. t Containing 12.000 acres more or less and being subject to any rights -of -way, restrictions and easements of record. CADoeuments and SettingsljbcYIfn\Local Settings7emporary Internet Files\OLX4841SLI 1239dasa (bumham phase I)-doe (.0003)(SGttr) Created on 1211512006 11;29:00 AM Last printed 2/20/1007 1:54 :00 PM Page 1 of I WE V i m �'0'\ -wa+mh3�TFM udwp 06-698 SKETCH OF DESCRIPTION NOT PLATTED ` QteBB V4 O . LR48.22' C8=S77'2416T N88W41 T 19.9 �N . - PT E NOT PunED .. BURNHAM SITE ' \ ' -' �� — SEE SMEEr 2 FOR PHASE 1 DESCPJP77ON AND NOTES: cr PC R =40.00' ,d■04'09'31' PoG� L= 61 Nwi6'O2`W 94.51 -' CB=S09 -W02 "W ' \ PT Ft =1420.00' ` 4=3 L =535'49' I 882.17' �...., ........... . I•.__._. .. BEGlN !NG CS-S78'56'08`W \ , Nor PLAiTen Il` ' soun� Lu,� SE SEC s0. -x-30 t/4 I0. ��X+ smmm � f46D x2' mn7,m-w Ilm4o- N ?8-�0 SW CORNER bE 1 4 3d- Ph3D U-w LEGE7dD W 26 -sa3� SEC 26 -24-30 SECROI{ TONS, RANGE POINT OF PC POW OF CURVAnW COMMENQEMENr PPTT'C POW OF TANGENCY CURVATURE SE 00 , ,4 NT NON— TANQWT SEO Y6_ . A DELTA 08 L BEARING R RADWS PREPARED FOR: LAKE NONA LAND COMPANY DATE BY noN S1 DONALD W. McINTOSH ASSOCIATES, tNC. U a IN= ENOWEERS PLANNERS SURVEYORS ;IK" 2200 PARK AVENUE NORTH WINTER PARK, FLORIDA 32768 (407) 6444068 Ton OF ORRA7M NO. U�6 pbtwad Surwym and Uoppor ty N0.. 604e UO wtHOUT nu sanAn a AM nIN DRAWN BY: P CHEOKEO BY: Sl(�- JOB NO. SCALE SHE ET PATE 1 _ DATE 12 SIOB 26f31.O003 2 OW R� �M A FIOtIDA U!*llsm MINVEM V i m �'0'\ -wa+mh3�TFM udwp 06-698 EXHIBIT " %a." Milestone Schedule B Site Plan royal Fc 5, 2007 Bumba Schetnatic Desi n Co letion Match 28 2007 B Pyre ' PmHtWTg Design Phase AppmW A pn 27, 2007 of SPMP 7, 2007 Ci m of Plat Se r20, 2007 F B Irate or Build Out Plan j 30, 2007 EmAy Po m Site Woic Permrt Pac c July 31,2007' Eady Foundation Site Work Permit Issue Date OctDber2,2007 Permanent FacHity Ground Brealdng October 4 2007 90% CD Pettnit Package Ocmber 3 2007 Pura GMP Contact ApprOW1 No—w rr30 2007 90% D Pem it Issue Dade C December 10o2007 S 'astanu Co do C70 Marc 16, 2009 B Move -m Date Mach v, 2009 ORL11116AL8BrOgm.1 31 TB2R=g OW dN =202W7 3AG PM W 0 Too E aIMIT'(6.(b)(iv))" Mass Grading Standards Permanent Facilities Site The Permanent Facilities Site will be filled and graded as part of the LNLC's Development Obligations. Additional technical details for the mass grading effort will be contained in engineering drawings prepared by the Project Engineer and supported by geotechnical information provided by Professional Services Industries, Inc. (the "Geotechnical Engineer") and environmental information provided by Glatting Jackson Kercher Anglin Lopez Rinehart, Inc. (the " Environmental Consultant'), or such successor Geotechnical Engineer or Environmental Consultant as appointed from time to time by Seller. The natural in place soils and fill material placed within the Permanent Facilities Site win be of a quality sufficient to support road and multi -story construction (three -story) structures with shallow and spread footings, typical of the Greater Orlando area. Following stripping and grubbing of surface vegetation and root mass to a suitable depth both as recommended and approved by the Geotecimical Engineer, suitable compacted fill will be placed on the Permanent Facilities Site as recommended by and approved by the Geotechnical Engineer and the City of Orlando requirements. The fill, will be placed in compacted lifts not exceeding 18" (1.5 feet) with each lift compacted to a minimum density of 95% of the soils modified Proctor value (AASHTO T -180). LNLC shall employ the Geotechnical Engineer to perform quality control inspections and soil tests to ensure that such practices are being followed, which inspections and tests shall be documented in writing from the Geotechnical Engineer to LNLC on a periodic basis. In connection with the turnover of the completed project to Burnham, the Geotechnical. Engineer shall prepare and deliver to LNLC and BURNHAM a summary report ' of all inspections and tests performed referenced development of the Permanent Facilities Site. The summary will certify the satisfactory preparation of the material in place and fill soils per the Geotechnical Engineers recommendations and the above described minimum requirements. BURNHAM shall accept the Permanent Facilities Site based upon a certification from the Geotechnical Engineer that the above practices have been followed and without warranty or recourse to LNLC. The Permanent Facilities Site will be graded by LNLC within a 4" (0.33 ft) vertical tolerance of those elevations specified by the Project Engineer in the approved engineering drawings for Lake Nona South, as prepared by Donald W. McIntosh Associates, Inc. and approved by BURNHAM, the City of Orlando and South Florida Water Management District (the "Approved Plans'). Ponds and interconnected pipes and ditches shall be constructed to the City of Orlando specifications and South Florida Water Management District Permit Conditions of Approval. As a part of LNLC's achieving substantial completion of the mass grading, sufficient survey to identify post grading elevations from the Permanent Facilities Site will be obtained by a licensed surveyor and supplied to BURNHAM to provide reasonable assurances that the vertical tolerances have been achieved in accordance with the Approved Plans, On"WALa"e5345.1 3175VMA 9Hd dry 241rPT 745 AM MPOWN, In connection with LNLC's achieving substantial completion, mass graded areas not intended by Burnham to have development occurring proximate to the grading completion will be seeded and mulched or hydro seeded to ensure stability and provide erosion control. Additional erosion control devises such as silt fences, hay bales, etc., required by permit in the vicinity of the grading area shall be functional and installed pursuant to the plans and specifications therefore as a condition of substantial completion. t� owaMALEMUM., Exhibit "61(ii)" OF Estimated Costs for the Protected Capital Improvement Program of Boggy Crook CDD Pro[ected Infrastructure. Projects to be Included In the golmated Capital Improvement Program F_cpressway Interchange (417 and Lake Nona Blvd.) Master Stormwater Management (Pond Construction) A - LN Blvd. (Expressway Interchange to Boggy Creek Rd.) L - (417 to Road Q) L - (Flyovers and Connectors) R - (Road E to Road A or LN Blvd.) D West - (Shopping Center to South PL) J - (Boggy Creek to OUC Access Rd.) Q - (Boggy Creek Rd. to Road E - includes Road N) Heintzelman Rd - (OUC Access to Dowden Rd.) E - (Road A or LN Blvd. to UCF South East PL) 7)oq.e I o f 9 Allocated Portion 81 Acres 12,650 LF 3,300 LF 1,200 LF 5,360 LF 7,410 LF 12,815 LF 11,780 LF 8,470 LF 1,690 LF Total gZ Roa wa Total CAP Less T:toadwav Imurgvements WOW=nts Interchange Allocation $10,000,000 $10,000,000 $0 Pond Construction and Acres $20,000,000 $20,000,000 Roadway & Stonmwater $54,000,000 $17,000,000 $37,000,000 Utilities $12,000,000 $4,000,000 $8,000,000 Landscape & Irrigation $10,000,000 $3,000,000 $7,000,000 Electric & Lighting $9;000,000 $3,000,000 $6,000,000 ,soft Costs $15,000,000 $5,QOO, $10,QM000 Subtotal $130,000,000 $420000,000 $88,000,000 Pro[ected Infrastructure. Projects to be Included In the golmated Capital Improvement Program F_cpressway Interchange (417 and Lake Nona Blvd.) Master Stormwater Management (Pond Construction) A - LN Blvd. (Expressway Interchange to Boggy Creek Rd.) L - (417 to Road Q) L - (Flyovers and Connectors) R - (Road E to Road A or LN Blvd.) D West - (Shopping Center to South PL) J - (Boggy Creek to OUC Access Rd.) Q - (Boggy Creek Rd. to Road E - includes Road N) Heintzelman Rd - (OUC Access to Dowden Rd.) E - (Road A or LN Blvd. to UCF South East PL) 7)oq.e I o f 9 Allocated Portion 81 Acres 12,650 LF 3,300 LF 1,200 LF 5,360 LF 7,410 LF 12,815 LF 11,780 LF 8,470 LF 1,690 LF �� ` "'t .�' ►� +�'� �,� ;� '.t. IrC� � `:, fj APPROVED By ORANGE COUNTY BOARD p�"COUNTY COMMISSION MAR 6 2007 LW 11 GROUND LEASE AGREEMENT BETWEEN ORANGE COUNTY, FLORIDA AND BURNHAM INSTITUTE FOR MEDICAL RESEARCH oRL1wFALESi16S9477A 3/ 76?l0026 OFY dho V2=007 803 AM • w� City �°unc�'I Meet g: J - item.. LpocumeriMwy�03 9B a EXIIIBUS EXHIBIT LIST SCHEDULE "1" DEFINITIONS EXHIBIT "A" LEGAL DESCRIPTION EXHIBIT `B" PERMITTED EXCEPTIONS I EXHIBIT "C" COUNTY DEED f EXHIBIT "D" MEMORANDUM OF LEASE FA'.)(M IT. "E" LEGAL DESCRIPTION OF SURPLUS LAND i ONAWW LMM6477A SIMI 2ADHJdIj=r42 7$=AM i GROUND LEASE AGREEMENT THIS GROUND LEASE AGREEMENT (hereinafter referred to as "Lease) is made and entered into on the last date signed below and effective as of the date set forth in Article 3.01, by and between ORANGE COUNTY, FLORIDA, a charter county and political subdivision of the State of Florida (hereinafter referred to as the "Coanty'l, and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California non -profit public benefit 501(cx3) corporation (hereinafter referred to as `Burnham "). WITNESSETH: WHEREAS, Burnham is an internationally recognized research organization focused on basic biomedical research in the fields of cancer, neurosciences and aging, and infectious and inflammatory diseases; and WHEREAS, County has determined that the development and operation Of the Permanent Facilities for the Permissible Use on the Permanent Facilities Site is in the public interest of the County; and WHEREAS, County, City, LNLC, and Burnham entered into the Grant Agreement providing for certain agreements between the parties with respect to the funding, permitting, design, construction, operation and maintenance of the Permanent Facilities at the Permanent Facilities Site; and WHEREAS, the Grant Agreement provides, among other things, that LNLC will donate and convey to County the Permanent Facilities Site, subject to and in accordance with the terms of the Gift Agreement (Permanent Facilities), and that concurrently with the closing under the Gift Agreement (Permanent Facilities), County and Burnham will enter into this Lease for the lease of the Permanent Facilities Site to Burnham. for Burnham's design, permitting, construction, operation and maintenance of the Permanent Facilities thereon; and 1 OM-1 +t �stbeNr� 3116 osa o►u ay uzzreoo� eaa AM • r WE[EREAS, by virtue of the various agreements among the parties and particularly the funding obligations thereunder, City and LNLC are and shall be deemed to, be third party beneficiaries under this Lease, with full rights of enforcement. NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby expressly acknowledge, the parties hereto covenant.and agree to the following terms and conditions: ARTICLE I RECITALS The foregoing recitals are true and correct and incorporated herein and made a part hereof by this reference. ARTICLE II r ' WM will] Capitalized terms not defined herein shall have the meaning set forth on Schedule 1 attached hereto and made a part hereof ARTICLE III BASIC LEASE PROVISIONS 3.01 Effective Date. Provided that this Lease has been executed by all Parties hereto, this Lease shall become effective upon the Closing under the Gift Agreement. (Permanent Facilities) (the "Effective Date'D. 3.02 Term. A. 10 � The initial term of this Lease (the "Initial Term") shall comrncnoe on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall expire on the earlier to occur of: (i) the fifteenth (1 St°) anniversary of the Effective Date; or �I i{ .r OR1.11RRJ�LE8i1!l/417.� J 1178�8 DHJ �{ y7ZfZ007 E= AM �; 0 (ii) (a) during the first ten (I o) years afterthe Effective Date, the date upon which Burnham has achieved the Job Commitment (as defined below) for each of three (3) consecutive Report Periods ending at or prior to the end of the tenth (10th) year after the Effective Date, or (b) during the eleventh (11,h) year through the fifteenth (15`) year after the Effective Date, the date upon which Burnham has achieved ninety percent (90 %) of the Job Commitment for each of three (3) consecutive Report Periods ending at or prior to the end of the fifteenth (15th) year after the Effective Date (for purpose of this calculation, in the event Burnham shall have achieved the Job Commitment in years nine and/or ten, such years may be utilized in combination with years eleven and/or twelve, as applicable, to determine whether this condition has been satisfied). For purposes herein, the ,Job Commitment" shall mean the creation and maintenance of an "Annual Average" of the 303 Jobs for the duration of the applicable Report Period, with a moving two-year average of the wages for all such Jobs created by Burnham equal to at least the Agreed Average Wage. The "Annual Average" shall be computed by adding the total number of Jobs created on or prior to and existing as of the last day of each month during a Report Period and dividing that number by 12. The Job Commitment for the applicable Report Period shall be deemed to have been met if the quotient calculated in accordance with the preceding sentence is equal to or greater than 303. B. Extended Term. If, as of the end of the Initial Term, Burnham has not achieved the Job Commitment for each of three (3) consecutive Report Periods ending at or prior to the end of the fifteenth (15th) year after the Effective Date in accordance with subparagraph A. above, then the term of this Lease shall be automatically extended until the earlier to occur of (i) the twenty -fifth (251h) anniversary of the Effective Date; or (ii) the date upon which Burnham 3 0RL1ysp87\BOB47)A S778Z100Z6 DHJ dh p/2?/R007 e;33 AM 90 has achieved the Job Commitment for one (1) full year, unless earlier terminated in accordance with this Agreement (the "Extended Term"). C. The Initial Term and the Extended Term are hereinafter referred to as the `°Term." If the Tema ends prior to the fifteenth (15`1) anniversary of the Effective Date and Burnham exercises its Option as provided in Section 23.02, herein, the County Deed shall provide that Burnham's title is subject to reverter in the event Burnham employs fewer than one- half of the total Job Commitment or in the event Burnham is in violation of the Part VII of the Grant Agreement (regarding exclusivity). The reverter shall expire on the fifteenth (15'1) anniversary of the Effective Date. D. If Burnham fails to achieve the Job Commitment at any time prior to the expiration of the Term, Burnham shall not be entitled to exercise the Option as provided in Section 23.02 herein and shall be required to convey the Permanent Facilities to the Funding Parties or their designee pursuant to Section 14.02B herein. Notwithstanding the foregoing, in such event, at the expiration of the Term, Burnham shall have the option to lease a prorate portion of the Permanent Facilities, based upon the actual number of Jobs created and sustained by Burnham as of the last day of the Term (the "Building Space "), for an additional fifteen (15) year period pursuant to a separate lease agreement upon commercially reasonable terns and conditions mutually acceptable to the Parties (the " Building Lease Term '), by providing the Funding Parties with written notice of its election to do so not less than six (6) months prior to the expiration of the Term. The configuration of the Building Space shall be determined by the Funding Parties so as to maximize the Funding Parties' ability to lease the remainder of the Permanent Facilities ( "Remaining Building Space") to other parties, giving due consideration to the issues associated with consolidating Burnham's operations into the condensed Building 4 ow' Fsreee4rr.4 st Te7/00Ye DFU dnl alrilzo0� 8a9 n►.t L Space. In the event Burnham provides written notice to the Funding Parties in a timely manner of its desire to lease any vacant portion of the Remaining Building Space upon market terms, including, without limitation, at Fair Market Rental, Burnham shall be given priority over third party lessees for such space, The Funding Parties shall be entitled to lease the Remaining Building Space to other lessees for use not incompatible with the Permissible Use (the "Co- Lessees"). Prior to entering into a lease with a Co- Lessee, the Funding Parties shall provide Burnham with written notice of any proposed Co- Lessee and such Co- Lessee's proposed use of the Remaining Building Space, and Burnham shall have the right to disapprove of the Co- Lessee for cause and with specificity within five (5) Business Days after receipt of written notice of the Co- Lessee; provided, Burnham's approval shall not be unreasonably withheld and must be based upon objective criteria relating to the incompatibility of the proposed Co- Lessee's use of the Remaining Building Space with Burnham's then current operations. Failure to disapprove of a Co- Lessee in writing within said five -day period shall be deemed an approval. Following the expiration of the Building Lease Terra, Burnham shall have the option to continue to lease the Building Space at the then current Fair Market Rental. 3.03 Demise of the Permane eat Facilities Site. The Permanent Facilities Site is described in Exhibit "A." which description shall be subject to modification as provided in the Gift Agreement (Permanent Facilities). County hereby demises and leases to Burnham, and Burnham leases from County, the Permanent Facilities Site solely for the purpose of granting to Burnham the right and obligation to design, permit, construct, operate and maintain the Permanent Facilities upon the Permanent Facilities Site subject to and in accordance with the terms of this Lease, the Grant Agreement, the Gift Agreement (Permanent Facilities), the Development obligation Agreement, the restrictions contained in the Special Warranty Deed 5 ORL1VtEALE6119L9477.� �JIIXO7b pHd d4 t/24 W7 M AM 90 ' J conveying the Permanent Facilities Site from LNLC to County and recorded at the time of the Closing under the Gift Agreement (Permanent Facilities) in the Public Records of Orange County, Florida, and the Permitted Exceptions set forth on Exhibit bit"B' attached hereto and incorporated herein by this reference, which shall be subject to modification as provided in the Gift Agreement (Permanent Facilities) (collectively, the "Governing Documents'l. The quiet enjoyment rights of Burnham set forth in Section 3.04 below shall include the rights of County to the full extent obtained under the Gift Agreement (Permanent Facilities), including, without limitation, the following proprietary rights of County (excluding, without limitation, public rights and governmental or regulatory authority): rights in and to all alleys and roads (whether existing or proposed), if any, adjoining the Permanent Facilities Site, rights in abutting land, abutting easements, abutting rights of way, abutting utility lines, abutting drainage improvements, rights of ingress and egress, whether claimed by deed, limitations or otherwise, including the Entitlements for the Permanent Facilities. 3.04 Quiet ioyp}ent. Upon payment by ]Burnham of the Annual Rent (defined herein) and other charges herein provided, and upon the observance and performance of all the covenants, terms and conditions of this Lease and the Governing.Documents on Burnham's part to be observed and performed, Burnham shall peaceably and quietly hold and enjoy the Permanent Facilities Site for the Term without hindrance or interruption by County or any other person or persons lawfully or equitably claiming by, through or under County ARTICLE IV RENT 4.01 Bound Rental. Burnham shall pay County an annual rental for the Permanent Facilities Site of One Dollar ($1.00) (the ,Annual Rent "). Payment of Annual Rent by Burnham to County shall commence upon the Effective Date of this Lease, and continue on the b 0FSL11RffALE871l66477A 31764/0026 DHJ dhj ?/27J4W1$II= AM V91 anniversary of the Effective Date until the end of the Term. Said Annual Rent shall be payable in advance, without demand and without any deduction, holdback or set off whatsoever. Notwithstanding the foregoing, in the event of an assignment or other transfer by operation of law, legal process, receivership, bankruptcy, or otherwise, whether voluntary or involuntary, to an Unauthorized Assignee (as defined below), or in the event Burnham elects to lease the Pdrmanent Facilities following the expiration of the Term or otherwise holds over, the Annual Rent hereunder shall automatically increase to the Fair Market Rental (as defined herein). For purposes herein, the "Fair Market Rental" of the Permanent Facilities Site and the Permanent Facilities, in the case of any adjustment of Annual Rent pursuant to this Lease, shall be determined by appraisal within six (6) months of the date on which an adjustment to the Annual Rent is to become effective. The Funding Parties shall select a qualified appraiser ( "Appraiser ") and notify Burnham or the Unauthorized Assignee, as applicable, of such selection, and the Appraiser shall proceed to determine the then Fair Market Rental and shall provide Burnham or the Unauthorized Assignee, as applicable, and the Funding Parties with a copy of such appraisal. The Appraiser's appraisal shall be conclusive as to the then Fair Market Rental. 4,02 "Absolute Net". This Lease shall be deemed to be "absolute net" without cost or expense to County of any nature whatsoever relating to the Permanent Facilities Site and/or any facilities placed thereon, including, without limitation, those relating to replacement reserves, taxes, if any, insurance, repair, maintenance, use, care or operation, except as expressly set forth in the Grant Agreement, unless such cost or expense is caused by the acts of County in its proprietary capacity under this Lease, ViJ ORLI AtE9M5477A 317521002E DW CIN 2124/2007 5:33 AM 99 4.03 Taxes and Assessments. Burnham shall pay all sales, use or rental taxes assessed by any governmental authority against the Annual Rent and/or Additional Rent (as defined I I herein), if any, even if such tax is intended to be imposed against County, including without ; limitation any tax imposed on the rental value of the Permanent Facilities Site or which is otherwise measured by or reasonably attributable to the land value of the Permanent Facilities Site, to the extent such tax exceeds the amount of rental tax payable on the amount of Annual Rent and/or Additional Rent payable under this Tease; and (b) any stamp tax or other documentary tax assessed upon or measured by this leasing transaction, and on any document to which Burnham or the County is a party for the purpose of creating or transferring a leasehold interest or estate in the Permanent Facilities Site. Burnham shall pay before delinquency all ad valorem and non -ad valorem taxes and assessments, if any, whether general or special and all tangible or intangible personal property taxes and assessments of any kind or nature and any and all taxes and other charges which may be levied by any governmental authority against the Permanent Facilities Site, Bumham's leasehold interest in the Permanent Facilities Site, or Burnham 's leasehold improvements to or personal property located on the Permanent Facilities Site, in the event the Permanent Facilities Site is subject to same. Burnham shall have the right to contest the amount or validity of any tax or assessment payable by it by appropriate legal proceedings, but such right shall not be deemed or construed in any way as relieving, modifying, or extending Burnham's covenants to pay any such tax or assessment under Section 4.02 and this Section 4.03, unless the legal proceedings shall operate to prevent the collection of the tax or assessment. Upon termination of such legal proceedings, Burnham shall pay the amount of any such tax or assessment, or part thereof, as finally determined in such proceedings, the payment of which may have been deferred during the prosecution thereof, together with any costs, fees, 8 0 , /,µeg'n08eN7.4 31761 0 DW Ety?I17/2007 0.39 AM interest, penalties, or other liabilities in connection therewith. County agrees that it will reasonably cooperate with Burnham in the event Burnham chooses to contest the amount or validity of any tax or assessment. 4.04 Accord and Satisfaction. In the event Burnham pays any amount that is less than the amount stipulated to be paid under this Lease, such payment shall be considered to be made only on account of the stipulated amount. No endorsement or statement on any check or letter shall be deemed an accord and satisfaction. County may accept any check or payment without prejudice to County's right to recover the balance due or to pursue any other remedy available to County pursuant to this Lease or under the law. 4.05 Additional Rent. Any and all sums of money or charges required to be paid to County by Burnham under this Lease other than the Annual Rent shall be considered "Additional Rent," whether or not the same is specifically so designated and County shall have the same rights to enforce due and timely payment by Burnham of all Additional Rent as are available to County with regards to Annual Rent. 4.06 Lixni on Asses. if at any time during the Terns any Governmental Authority shall undertake to create an improvement or special assessment district, the proposed boundaries of which shall include the Permanent Facilities Site (a "Proposed District"), Burnham shall be entitled to appear in any proceeding relating thereto and to exercise all rights of a leaseholder to contest the inclusion of the Permanent Facilities Site within the Proposed District, or to challenge the degree of benefit to the Permanent Facilities Site resulting therefrom; and County agrees to cooperate with Burnham in such determination and to take no position inconsistent with Burnham in any such proceeding for the purpose of seeking inclusion of the Permanent Facilities Site in, or exclusion of the Permanent Facilities Site from, any Proposed 9 3176=24 DHJ dry 242=7 3:33 AM 9-B District. The party receiving any notice or other information relating to the Proposed District shall promptly advise the other party in writing of such receipt. If the Proposed District is ultimately formed and affects the Permanent Facilities Site, Burnham may pay any resulting i assessments over the maximum period allowed by law, and shall be liable only for any installments that become due during the Term. Additionally, County shall not elect to cause the ; Permanent Facilities Site to become subject to any Proposed District, or other special taxing district which could result in any real property taxes or assessments becoming a lien on the Permanent Facilities Site, without the prior written consent of Burnham. If Burnham consents to the inclusion of the Permanent Facilities Site in any Proposed District or other special taxing district, County shall cooperate with Burnham and execute any documents reasonably required to establish such Proposed District or other special taxing districts for purposes of financing improvements benefiting the Permanent Facilities Site, and all encumbrances resulting from the inclusion of the Permanent Facilities Site in such Proposed District or other special faxing district { shall be included in the Permitted Exceptions. Notwithstanding the foregoing, Burnham shall not have the right to object to the formation or existence of the Boggy Creek CDD, nor shall County be required to cooperate with Burnham or to support any position Burnham takes with regard to any assessments proposed or levied by the Boggy Creek CDD. The parties' rights and obligations with respect to the Boggy Creek CDD shall be governed by the terms of the Gift Agreement (Permanent Facilities) and the Gift Agreement (Surplus Land). ARTICLE V CONDUCT OF BU82 ESS An IVSE OF PERMANENT FACILIT S SITE BY BURNHAM 5.01 Use. Notwithstanding anything herein to the contrary, Burnham, during the Term of this Lease, shall use and occupy the Permanent Facilities Site: 10 ORLIM LEOMW77A 317s9l M OHJ ON 2J2V oo7 8:33 AM A. for the construction of the Permanent Facilities. B. after completion of the Permanent Facilities, solely and exclusively for the establishment and operation of the Permanent Facilities for the Permissible Use. Subject to Section 5.02, Burnham shall not use, or suffer the use of the Permanent Facilities Site for any other use, business, or purpose whatsoever other than the Permissible Use, without the prior, written consent of County, City and LNLC, which may be withheld in the sole discretion of such parties. The Funding Parties acknowledge and agree that Burnham cannot be in default of the foregoing Permissible Use limitation due to the actions of the Funding Parties. C. subject to and in accordance with the covenants, restrictions, requirements, stipulations and obligations of the Governing Documents, including, but not limited to the provisions of Article 18 hereof. 5.02 Subleasing. Subleasing, licensing and for -profit activities (collectively, "Subleasing Activities ") shall be permitted in the Permanent Facilities, so long as such activities <l are consistent with the Permissible Use, have the prior written approval of County, City and LNLC, not to be unreasonably withheld, and are subject to the Subleasing Restrictions. 5.03 Operation of Permanent Facilities Site. During the Term of this Lease, Burnham shall occupy, equip, maintain, and operate the Permanent Facilities Site, in a commercially reasonable manner and to a Class "A" research facility standard. 5.04 Waste or Nuisance. Burnham shall not commit or suffer to be committed any waste upon the Permanent Facilities Site, commit or permit the maintenance or commission of any nuisance upon the Permanent Facilities Site, or otherwise materially impair the value of the Permanent Facilities Site. 11 ORLIU ALESr"5177A 31762O0 B O1U mJ 7/!2/2067 6:33 AM • i4 Pj 5.05 Airport orations. Burnham acknowledges and agrees that the County, Pursuant to that certain Declaration and Dedication of Avigation Easement, recorded on February 29, 1988 in Official Records Book 3961, Page 1089, Public Records of Orange County, Florida (the " Avigation Easement"), for the use and benefit of the public, received a right of r flight for the passage of aircraft in the airspace above the Permanent Facilities Site, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation of or flight in the said airspace, and for the use of said air space for landing on, taking off from, or operating on the Orlando International Airport. 5.06 Prohih&d Use. Notwithstanding anything to the contrary herein, Burnham shall use the Permanent Facilities Site only as provided in Article V herein, and shall not use or suffer the use of the Permanent Facilities Site for any illegal or improper purpose, or any other use whatsoever. ARTICLE VI . k CONSTRUCTION OF IMPROVEMENTS i 6.01 Cgnstruction of Improvements. Burnham shall ensure the design, permitting, and construction of the Permanent Facilities on the Permanent Facilities Site in accordance with the I I Grant Agreement; Burnham may retain third parties in order to effectuate this obligation. i I Notwithstanding Burnham's entry into the Development Obligation Agreement with LNBC (or other Project Manager) to manage and/or cause the performance of the foregoing, Burnham shall remain obligated to the Funding Parties to diligently enforce the terms of the Development i Obligation Agreement against the Project Manager for completion of the Permanent Facilities. The Funding Parties agree to cooperate and assist Burnham in connection with its enforcement i i actions relating to the Development Obligation Agreement. Burnham shall be the owner of the 12 OMIWZALE87VWW77A 31762WN DHJ dhJ?Y17J2D07 303 AM Permanent Facilities, subject to the rights of County, City and LNLC set forth herein and in the Grant Agreement. 6.02 Alterations and Subsequent Im=vements. A. Alterations, Generally. Burnham shall not: (a) construct any additions to or expansions of the Permanent Facilities; (b) perform any alterations of a structural nature to the Permanent Facilities; (c) perform any other alterations, repairs or renovations with the use of Grant Funds; or (d) perform any alteration, repair or renovation which will cost in excess of $75,000.00 individually or any alterations, repairs or renovations in a twelve month period which would exceed $450,000 in the aggregate (each of the foregoing items (a), (b), (c), and (d) being referred to herein as a "Major Alteration "); in each case, without the prior written consent and approval of County, which consent shall not be unreasonably withheld or delayed. Burnham, without the prior approval of County, may make nonstructural interior alterations not falling within (a) - (d) above (the "Minor Alterations ") to the Permanent Facilities so long as Burnham provides prompt written notice to the Funding Parties of all such Minor Alterations, including a detailed description and an itemization of costs associated therewith. No fixture or equipment in excess of $5,000 which was purchased with Chant Funds shall be removed from the Permanent Facilities without the prior written consent of the Funding Parties. B. Submittal of Alterations for Approval. Prior to commencing any Major Alteration, Burnham shall submit to County a detailed proposal therefor, together with such supporting documentation as County may reasonably request (the "Submittal"). Within fifteen (15) Business Days of County's receipt of, the Submittal, County shall review and approve or disapprove of the Submittal by providing Burnham with written approval/objections/comments. Failure of County to respond within the fifteen (15) Business Day period shall be deemed 13 ORLI%REALEU 0477.a WOO ON DHJ * J?/22f2007 813 AM �a approval, The parties shall negotiate in good faith to resolve any objections/commcnts of County. i C. Performance of Alteration. No Major Alteration may be performed prior to Final ! Completion. All Minor Alterations or Major Alterations shall be performed by Burnham at Burnham's sole cost and expense in accordance with the following conditions: (a) Burnham shall obtain the necessary permits and approvals from the City of Orlando and all other governmental authorities having jurisdiction over the Permanent Facilities Site. Burnham shall comply with all applicable laws, ordinances, requirements, orders, directions, rules and regulations of the federal, state, county and municipal governments and of all other governmental authorities having jurisdiction over the Permanent Facilities Site. (b) Burnham hereby represents and warrants to the County, City, and LNLC that all alterations will be performed in a good and workmanlike manner and in accordance with the terms, provisions and conditions of this Ground Lease, the Permissible Use, the Permitted Exceptions and all applicable governmental requirements. (c) County shall have the right to inspect construction of any Minor Alterations or Major Alterations at all times during normal working hours (but County shall not thereby assume any responsibility for the proper performance of the Alterations in accordance with the 'terms of this Ground Lease, nor any liability arising from the improper performance thereof). County shall have no right to direct Burnham's Project Manager (if applicable), contractor or subcontractors to take any action, and shall only communicate such requests to Burnham or to Burnham's Project Manager. 14 oRumAWrA84477,4 3176V=8 DHJ @y V22=7 6:33 AM (d) A11 Minor Alterations and Major Alterations shall be performed free of any liens on the Permanent Facilities and the Permanent Facilities Site. If, because of any act or omission of Burnham or its agents in its construction of any of Burnham's alterations or improvements, or its making of any repairs to the Permanent Facilities Site, any construction lien, mechanics' or other lien, charge or order for the payment of money or otherwise shall be filed against the Permanent Facilities of the Permanent Facilities Site, Burnham, at Burnham's sole cost and expense, shall cause it to be cancelled or discharged of record by bonding or otherwise within ten (10) days after such filing, and Burnham shall, in any event, indemnify, defend and save the Funding Parties harmless against and shall pay all costs, expense, losses, fines and penalties, including, without limitation, attorney's fees and disbursements, related thereto or resulting therefrom, except to the extent arising from the Funding Parties' gross negligence or willful misconduct. (e) For any alteration costing in excess of $75,000.00, Burnham shall furnish payment and performance bonds naming County as beneficiary thereunder, in form and content reasonably acceptable to the County, establish an escrow account holding the funds for such alteration upon terms acceptable to County, or make other arrangements reasonably satisfactory to County for the completion of all work free and clear of liens, and shall procure insurance naming the Funding Parties as additional insureds and provide certificates of insurance for worker's compensation and other industry - standard insurance coverage for construction projects of comparable size to protect County against liability for personal injury or damage arising out of or relating thereto. 15 W82/ =a DHJ dhi 21t OCq 6'.33 AM lw � 9B (f) Upon completion of any alteration in excess of $75,000, Burnham shall deliver to County: (1) sworn statements setting forth the names of all contractors and E subcontractors and final lien waivers tom such contractors and subcontractors; and (ii) as } built plans for such alteration. (g) Burnham shall indemnify, defend and hold harmless County from and against any and all claims arising out of any alterations performed pursuant to the Provisions of I this Section 6.02. D. Delegation and Limited Joinder of LNLC. County hereby delegates to LNLC, and Burnham hereby acknowledges the delegation of, all rights and obligations accruing to i County under this Section 6.02. LNLC joins and consents to this Lease (without affect to its third -party beneficiary status hereunder) for the sole and limited purpose of accepting this delegation of rights and obligations. County reserves the right to revoke this delegation with or without cause upon thirty (30) days written notice to LNLC and LNLC reserves the right to revoke its acceptance of this delegation with or without cause upon thirty (30) days' written notice to County. Notwithstanding this delegation, all bonds, insurance and indmMiification required under this Section 6.02 shall accrue to the benefit and protection of the Funding Parties and the Funding Parties shall retain full rights of enforcement of all terms herein. 6.03 CQnamon Development Easements Restrictions artd Declarations. County recognizes that Burnham may desire to develop the Permanent Facilities Site as a single planned development consisting of the Permanent Facilities Site and the improvements to the Surplus Land. So long as Burnham is not then in default of this Lease or the Grant Agreement, upon request by Burnham (and only after all documentation reasonably required by the Funding Parties to consummate the relevant transaction shall have been provided to the Funding Parties), 16 ORl11REALE9T66B471A 377!210023 t Gh{ 272? WI 0:33 AM 9io the Funding Parties agree to promptly review Burnham's requests (i) to enter into or modify with Burnham and/or any other applicable Person, at Burnham's expense and to the extent within County's control, such easements, covenants, waivers, approvals or restrictions for utilities, 1 driveways, parking and other common improvements, or other matters as Burnham may desire for the common operation of the Permanent Facilities Site and the improvements to the Surplus Land, or that may be required by any applicable law or governmental authority (collectively, "Additional Easements') or (ii) to dedicate or transfer minor non - essential or non - material i portions of the Permanent Facilities Site for road, highway or other public purposes (to the extent such dedications or transfers are consistent with commercially reasonable development of the Permanent Facilities Site) or as otherwise required by any law or governmental authority (the "Dedications "); provided, that (A) County's action shall be required by any applicable law or governmental authority for the development of the Permanent Facilities Site or the Surplus Land, and (B) any such Additional Easement or Dedication does not materially and adversely affect the long term utility of the Permanent Facilities Site for the Permissible Use, and (C) any such IIi Additional Easement or Dedication does not materially impair Burnham's use or operation of the Permanent Facilities Site for the Permissible Use, (D) any such Additional Easement or i Dedication is consistent with the development of the overall Burnham Campus, and (E) for -so long as this Lease is in effect, Burnham will perform all obligations, if any, of County under the instrument applicable to such Additional Easements and Dedications and Burnham will remain obligated under this Lease in accordance with its terms, all of which (items (A) through (E) above) Burnham shall certify to the Funding Parties in writing (such certification to be made in the good faith judgment of..Bumham) at the time the request is made for any such Additional Easement or Dedication. Subject to the foregoing, the Funding Parties agree not to unreasonably 17 ORLIMA6EOrM077.4 8176210026 OHJ 9" V2212007 6:38 AM • M delay or withhold approval of such matters and shall cooperate and assist Burnham in obtaining the necessary governmental approvals relating thereto. 6.04 No Construction Liens. In accordance with Chapter 713.10, Florida Statutes, Burnham covenants and agrees that nothing contained in this Lease shall be construed as consent by County to subject the estate of County to liability under the Construction Lien Law of the State of Florida, it being expressly understood that County's estate shall not be subject to such liability. Burnham shall notify any and all parties or entities performing work or providing materials relating to any improvements made by Burnham of this provision of this Lease. Burnham shall file a notice reasonably satisfactory to County in the Public Records of Orange County, Florida stating that County's interest shall- not be subject to liens for improvements made by Burnham. In the event that a construction lien is recorded against the Permanent Facilities Site or other County property in connection with -any work performed by or on behalf of Burnham, Burnham shall have the right to contest any such lien for a reasonable period of time but in any event, Burnham shall satisfy such claim, or transfer same to security, within thirty (30) days from notice of such recording. In the event that Burnham fails to satisfy or transfer such claim within said 30 -day period, County may do, so and thereafter charge Burnham, and Burnham shall promptly pay to County upon demand, as Additional Rent, all reasonable costs incurred by County in connection with the satisfaction or transfer of such claim, including attorney's fees. 6.05 Concurrently herewith, Burnham shall grant the Funding Parties as joint mortgagees a leasehold mortgage (mortgage and security agreement and allied instruments) in the Permanent Facilities Site, this Ground Lease, and the Permanent Facilities, in form and content subject to the reasonable approval of the Funding Parties (the "Primary Leasehold 18 owavW_4LE6Me477.4 SIMZMM OFU dN 2=007 eaB.AM 9B iMortgage "). The purpose of the Primary Leasehold Mortgage shall be, inter alia, to provide the Funding Parties the primary security interest for grants made under the Grant Agreement and the obligations of Burnham thereunder and under this Ground Lease. "Events of Burnham's default under the Primary Leasehold Mortgage shall be limited to any default which could result in termination of the Grant Agreement or this Ground Lease and remedies therefor shall be (i) any remedy available under the Grant Agreement or this Ground Lease, (ii) foreclosure, and (iii) any remedy available to mortgagees as secured parties under the Uniform Commercial Code. The Primary Leasehold Mortgage shall expire and be satisfied upon expiration of this Ground Lease. At Burnham's request, provided Burnham is not otherwise in default hereunder or under the Grant Agreement, the Funding Parties agree to subordinate the Primary Leasehold Mortgage to other leasehold mortgages that Burnham may grant pursuant to Article IX for the enhancement of the Burnham Campus (the "Leasehold Mortgages) "), following the tenth (101h) anniversary of the Effective Date. ARTICLE VII MAINTENANCE AND REPAIR 7.01 Maintenance and Repair. County shall not be obligated or required to make or conduct any maintenance or repairs whatsoever to the Permanent Facilities Site, unless such repair work is a result of County's actions in its proprietary capacity. Burnham, at its sole cost and expense, shall maintain the Permanent facilities Site and all improvements thereon and appurtenances thereto, in a good, safe, Class "A" condition and repair in accordance with good business practice and industry standards. 7.02 Rigiit_t9 Inspect. County, County's agents, City, City's agents and LNLC shall have the right, upon reasonable prior notice to Burnham, to periodically enter the Permanent Facilities Site for the purpose of inspection of the Permanent Facilities Site to determine 19 oHU1REA1.887 0477.4 317OV0023 DHJ ery Mr,0007 8:39 AM compliance by Burnham with its obligations under the Grant Agreement and this Lease, subject to reasonable restrictions upon such inspections imposed by Burnham for safety, confidentiality and security purposes due to the nature of Burnham's operations. The exercise of these inspection rights shall not unreasonably interfere with or disrupt Burnham's operations upon the Permanent Facilities Site. County, City, and LNLC shall use best efforts to coordinate joint inspections, which shall not include any rights to view or copy any proprietary materials, including but not limited to research protocols, processes and/or results, and agree to conduct such inspections no more frequently than quarterly absent a an emergency situation requiring an intervening inspection. Nothing herein shall be construed to limit the Funding Parties' rights to ensure compliance with Environmental Laws nor to diminish, limit or alter County's or City's independent authority to enter and inspect the Permanent Facilities Site and the Permanent Facilities in their governmental capacities. During construction of the Permanent Facilities, County, City and LNLC, as applicable, will severally indemnify Burnham for liability incurred by Burnham as a result of exercise by such party of such inspection rights, to the extent provided in Section 768.28 Florida Statutes (2006) as to County and City, and will comply with requirements as to safety programs of the Project Manager during such inspections in accordance with the Development Obligation Agreement. 7.03 Cleanliness of Permanent Facilities Site. GroimdI Maintenance Burnham, at its sole cost and expense, shall ensure that the Permanent Facilities Site is clean at all times. All refuse is to be removed from the Permanent Facilities Site at Burnham's sole cost and expense and Burnham will ensure that such refuse is kept in proper containers until removed. 7.04 Waste Storage and Di%mal, Burnham shall provide, operate and maintain adequate facilities for separating, neutralizing, treating, storing and properly disposing of 20 0RUMALEBWO6477.4 317$ZFOMS DMJ Ltd ZP WD07 M AM 98 industrial waste and foreign materials, including, without limitation, hazardous, biomedical and biohazardous waste and materials generated by Burnham's operations and those of its sublessees, as required by all applicable laws, ordinances, rules, orders and regulations of any governmental entity as now existing or promulgated hereafter, to the extent such facilities are required. ARTICLE. VIiI UTILITIES 8.01 Utility Service Costs. Burnham shall be solely responsible for and promptly pay all costs and expenses relating to utility service provided to the Permanent Facilities Site, in accordance with the terms of the Grant Agreement, and shall pay directly to the utility company or the provider of such service all charges and assessments for any utility services provided, including, without limitation, connection charges, water, reclaimed water, sewer, gas, electricity, telecommunications, trash collection and removal or any other utility used or consumed on the Permanent Facilities Site. In no event shall County be liable for an interruption or failure in the supply of any such utility to the Permanent Facilities Site. ARTICLE III INSURANCE 9.01 Insurancb Coverage. Burnham, at Burnham's sole cost, must obtain and maintain in full force and effect at all times during the Term, the following insurance in forms satisfactory to the Funding Parties, with one or more insurers qualified to do business in the State of Florida: (i) "All -risk" property insurance covering the Permanent Facilities building and other related structures and its personal property together with the value of any improvements made to, on or within the Permanent Facilities Site against damage caused by fire or other casualty for the full replacement value of such property and any income in connection therewith, excluding the peril of named windstorm which may be insured for probable maximum loss. Probable maximum 21 OftflREAlEVW0477,4 31762/002! DMJ CN Z2Z=7 OW AM 9B loss shall be determined by a loss study conducted by a certified engineering firm and shall be acceptable to the Funding Parties. Any flat deductible shall not exceed $100,000 and any wind i percentage deductible shall not exceed five percent (5 %), The County, City and LNLC shall be specified as loss payees on all policies. (ii) Commercial general liability insurance, issued on ISO form CG 00 01 or its equivalent, to cover Burnham and the Funding Parties or any others designated by the Funding Parties against I liability for injury and/or death of anyperson(s) and for damage to personal property occasioned by or arising out of any construction, condition, use or occupancy of the Permanent Facilities Site in an amount not less than $5,000,000 per occurrence, including limits provided by any excess or umbrella policies. The County, City, and LNLC shall be named as additional insureds with a CG2026 Additional Insured — Designated Person or Organization endorsement, or its equivalent to all commercial general liability policies. (iii) Pollution legal liability and on -site clean -up coverage with limits of not less than $2,000,000 to cover any pollution conditions associated with its use or occupancy of the Permanent Facilities Site. Pollution conditions shall mean the discharge, dispersal, release or escape of any solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to toxic chemicals, medical waste and waste materials into or upon land, or any structure on land, the atmosphere or any watercourse or body of water, including groundwater. The policy (ies) shall include an endorsement extending coverage to all aboveground and underground storage tanks. 9.02 insurance Administration. Annually, and from time to time upon request, Burnham shall provide County, City and LNLC with current certificates (including renewal certificates) of insurance evidencing required coverage. Failure by the County, City and LNLC 22 0RLi%RPALZ5T W77A 308210028 OW cIN 2M=007 599 AM to request certificates of insurance or to identify deficiencies in coverage from evidence provided will not be construed as a waiver of Burnham's obligation to maintain said insurance. The Funding Parties shall be notified in writing of any reduction, cancellation or substantial change of policy or policies at least thirty (30) calendar days prior to the effective date of said action. All insurance policies shall be primary and issued by companies with a Financial Rating of "A -" or better and a Financial Size Category of "Class V" or higher according to the most current edition of Best's insurance Reports. Carriers must be licensed and authorized to do business in the State of Florida or in the case of a surplus lines carrier must meet the requirements specified in Section 626.915, Florida Statutes. Every five (5) years the Parties shall, in good faith negotiate whether there should be increases /decreases (and if so, the amount thereof) in the amounts of liability insurance required hereunder. if the Parties are unable to agree, the matter shall be resolved by binding mediation. The mediation shall be heard by one (l) mediator selected by mutual agreement of the Funding Parties and Burnham. If the Parties cannot agree on a mediator, then either party may seek to have the mediator selected by the American Arbitration Association and the decision of the American Arbitration Association as to the appointment of the mediator shall be binding on all Parties. Unless the Parties agree otherwise the site of the mediation shall be in Orange County, Florida. In the event that Burnham fails to provide the insurance required herein and evidence thereof to the Funding Parties, as required or when requested, the Funding Parties shall be entitled to procure such insurance coverage at any time within the last ten days prior to the expiration thereof, at Burnham's sole cost and expense. 23 OROWWAi.esne U".4 3176VMS OMJ Oh) 2WJ 007 0.93 AM 98 9B ARTICLE X INDEMMCATION Burnham shall defend, indemnify and hold harmless. the Funding Parties from and against any and all liabilities, costs, expenses, claims, damages, fines, and penalties of any kind or nature whatsoever to the extent arising out of Burnham's use and occupancy of the Permanent Facilities Site, Burnham's actions or inactions, or a default by Burnham, under this Ground Lease or any sublease hereunder. This indemnification provision shall not apply to those liabilities,. costs, expenses, claims, damages, fines, and -penalties of any kind or nature whatsoever to the extent arising solely out of the negligence or willful misconduct of one or more Funding Parties. The obligations of this Article X shall survive the expiration or termination of this Ground Lease. ARTICLE XI DAMAGE OR DESTRUCTION OF PERMANENT FACILITIES SITEnMPRO'VEMENTS 1, 11.01 Burnham's Obli ag_tions. Subject to the provisions of the Grant Agreement, .Burnham hereby assumes full responsibility for the condition of the Permanent Facilities and Permanent Facilities Site. If the Permanent Facilities Site or Permanent Facilities, or any part of either, during the Term, shall be damaged in any material way, whether by act of God, by the act, default or negligence of Burnham, or of Burnham's agents, employees, officers, representatives, guests, invitees, contractors, patrons, or any person admitted to the said Permanent Facilities or Permanent Facilities Site by Burnham or otherwise (excluding any representative of the County, City or LNLC under Section 7.02), then Burnham, without recourse to the Grant Funds, shall restore the damaged Permanent Facilities and Permanent Facilities Site. In the event Burnham has satisfied all casualty insurance requirements hereunder and, after Burnham's commercially reasonable diligent pursuit of insurance proceeds (including pursuit of all administrative, legal, 24 ORLIMALAffM84n.4. 90 and equitable remedies), available insurance proceeds are insufficient for the required restoration, Burnham shall have no restoration obligation beyond the available insurance proceeds. The Funding Parties shall have no restoration obligations under any circumstances. 11.02 Condemnation. Y£, during the Terns of this Lease, there is a taking, or transfer of: all or any part of the Permanent Facilities Site for a public use by any individual or entity, public or private, possessing the power of eminent domain, whether by a condemnation proceeding or otherwise, this Lease shall, as to the part transferred or taken, terminate as of the date of such taking, which is defined as the earliest of the following dates: A. the date legal possession is taken, which is defined as the date, if any, after which the condemnor may take possession of such portion of the Permanent Facilities Site, as stated in an order authorizing the condemnor to take possession; B. the date a final order of condemnation or final judgment is filed or recorded or the date a deed is recorded in the event of a transfer, or C. the date that physical possession of such portion of the Permanent Facilities Site is taken. 11.03 Right to Award. In the event that an award is made for an entire or partial taking or for damages to the Permanent Facilities Site or any interest therein in any action in direct or inverse condemnation, the parties hereto agree that, subject to subparagraph G. below, their respective right to the award or the compensation paid shall be as follows: A. Burnham shall be entitled to such portion of the award as may be allocated to the Permanent Facilities and all improvements, fixtures and equipment related thereto, and to the fair market value of Burnham's leasehold estate including, without limitation, any bonus value; B. Burnham shall also be entitled to any compensation for relocation costs, 25 ORUMALES716 OMA 31702MM DHJ dr ?/27/2007 &W AM lost revenues or profits, loss of goodwill and for any other damages permitted by law for a leasehold estate; C. County shall be entitled to that portion of the award allocated to the reversionary value of the land, dxclusive of the Permanent Facilities thereon; D. Severance damages shall be divided between the parties in the ratio in which they share the award as provided in A and C above; B. If there is an award made pursuant to a judgment, and neither party can agree as to the values to be assigned to their respective interests in such award, the values of these interests shall be determined in an apportionment proceeding under Section 73.101, Florida Statutes (2006), as it may be amended from time to time. However, the parties agree to mediate the dispute prior to the apportionment proceeding. Neither party will do any act or make any agreement which will impair the legal obligation of the condemnor to bear the costs of such proceeding. Both parties agree, however, that in the event such a proceeding is used, the rights of the respective parties hereto shall be governed by the formula set forth herein; F. Any interest paid on the award in condemnation shall be divided between the parties in the same ratio as the award has been divided under the terms of subparagraphs A, B, and C above. Interest payable because of a taking of legal or physical possession, or damage to the Permanent Facilities Site by the condemnor, shall be paid to Burnham and the County as their interests appear. G. Notwithstanding the foregoing, so long as Burnham remains in possession of all or a substantial portion of the Permanent Facilities, the Parties agree that all condemnation proceeds not required to restore the functionality of the Permanent Facilities and/or the Permanent Facilities Site shall be placed in an interest bearing account for the benefit of the 26 ORL1ytME8T%%61n.1 . 317EVMO WJ ON ZlxZMW 0:99 AM �96 Party retaininglobtaining fee title to the Permanent Facilities Site following the expiration or termination of this Lease and the reverter created hereunder. ARTICLE XII ENCUMBRANCES 12.01 Burnham's Obligations. Except as otherwise permitted herein with respect to the Primary Leasehold Mortgage, Burnham shall not, in any manner, mortgage, pledge, or otherwise encumber the Permanent Facilities Site without County's, City's and LNLC's prior written consent, which may be granted or withheld at each party's sole discretion. Notwithstanding the foregoing, following the tenth (10`h) anniversary of this Lease, provided Burnham is not otherwise in default hereunder or under the Grant Agreement, Burnham shall be entitled to pledge, mortgage or collaterally assign its leasehold interest under this Lease in the Permanent Facilities Site for the purpose of securing the repayment of a loan relating solely to the enhancement or operation of the Burnham Campus (which may include recruitment costs) (a "Leasehold Mortgage "), with County's, City's and LNLC's prior written consent, which shall not be unreasonably withheld. In connection therewith, County, City and LNLC within forty - five (45) days after Burnham's written request therefor, shall execute and deliver an appropriate form of consent and subordination in form and content satisfactory to the Funding Parties and Burnham. Any such Leasehold Mortgage without County's, City's and LNLC's approval shall be null and void. This provision shall be construed to include a prohibition against any mortgage, pledge, or encumbrance by operation of law, legal process, receivership, bankruptcy, or otherwise, whether voluntary or involuntary. 12.02 County's Obligations. During the Term of this Lease, County, in its proprietary capacity as landlord, shall not: (i) sell, transfer or encumber all or any portion of the Permanent Facilities Site other than as provided in the Funding Parties Agreement; or (ii) cancel, amend or 27 OFMIM►UM M3M".4. 3170 ?OM& pFIJ dllJ M=007 8:33 AM 9B modify any agreement, easement, license, declaration or covenant affecting the Permanent Facilities Site or any part thereof that would adversely affect the development or use by Burnham of the Permanent Facilities, without the prior written consent of Burnham, which consent shall not be unreasonably withheld (provided this provision shall not be deemed to preclude County from taking those actions contemplated under the Gift Agreement (Permanent Facilities) as necessary to facilitate the construction and operation of the Permanent Facilities), or (iii) apply for or support a change to the current zoning that alters the land use entitlements of the Permanent Facilities Site. 12.03 Leasehold Mortaases. Any Leasehold Mortgage shall be subject to all covenants, conditions, and restrictions set forth in this Lease and to all rights and interests of the Funding Parties in the Permanent Facilities Site. Burnham shall give the Funding Parties forty -five (45) days' prior written notice of any proposed Leasehold Mortgage, together with a copy of the proposed mortgage, or other security interest evidencing the Leasehold Mortgage and any other materials or documents reasonably requested by the Funding Parties. Provided the Funding Parties shall have approved of the granting of the Leasehold Mortgage, Burnham, concurrently with the granting of a Leasehold Mortgage on the Permanent Facilities Site, shall provide the Funding Parties with copies of the note or other obligation secured by such Leasehold Mortgage and of any other documents pertinent to the Leasehold Mortgage, along with notice information for the person holding the security interest in Burnham's leasehold estate pursuant to the Leasehold Mortgage (the "Leasehold Mortgagee "). Burnham shall thereafter also provide the Funding Parties forty-five (45) days' prior written notice of any proposed amendment or other modification or supplement to such instruments, which shall be subject to the Funding Parties' reasonable approval. Leasehold Mortgagee shall be required to provide to the Funding Parties 28 ow REALPA SOMA 3176 Mn DMJ d" 2122MM7 6:39 AM duplicate copies of any and all notices Leasehold Mortgagee may from time to time give to or serve on Burnham pursuant to or relating to the Leasehold Mortgage, including but not limited to any notice of default, notice of termination, or notice regarding any matter on which Leasehold Mortgagee may predicate or claim a default. County shall mail to any Leasehold Mortgagee who has given County written notice of its name and address (including such written notice received from Lessee) a duplicate copy of any and all notices County may from time to time give to or serve on Burnham pursuant to or relating to this Lease, including but not limited to any notice of default, notice of termination, or notice regarding any matter on which County may predicate, or claim a default. Any notices or other communications permitted by this or any other section of this Lease or by law to be served on or given to the Leasehold Mortgagee by County shall be deemed duly served on or given when deposited in the United States mail, first -class postage prepaid, addressed to Leasehold Mortgagee at the last mailing address for furnished in writing by the Leasehold Mortgagee to County. 12.04 Right of Leasehold Mortgagee to Realize on Security. Subject to the provisions set forth in subsection 12.04 E., Leasehold Mortgagee shall have the right at any time during the term of this Lease and the existence of its encumbrance to: A. Do any act or thing required of Burnham under this Lease, and any such act or thing done and performed by the Leasehold Mortgagee shall be as effective to prevent a forfeiture of Burnham's rights under this Lease as if done by Burnham; B. Realize on the security afforded by Burnham's leasehold estate created hereof by means of foreclosure proceedings, accepting an assignment in lieu of foreclosure, or other remedy afforded in law or in equity or by the Leasehold Mortgage; PZ ORLIMALF- 91Mt64".4 31701=& OW dhJ 21=007 era AM 9B C. Transfer, convey, or assign the title of Burnham to the leasehold estate created by this Lease to any purchaser, at any foreclosure sale, whether the foreclosure sale is conducted pursuant to court order or pursuant to a power of sale contained in the Leasehold f Mortgage, or to an assignee pursuant to an gn p assignment in lieu of foreclosure; and D. Acquire and succeed to the interest of Burnham under this Lease by virtue i of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in the Leasehold Mortgage, or by virtue of an assignment in lieu of foreclosure. E. Notwithstanding the foregoing or anything contained herein to the contrary, any transferee or assignee pursuant to the foregoing or otherwise under this Lease without the Funding Parties' prior written consent (except as otherwise permitted under Article XVl below) shall be deemed to be an " Unauthorized Assignee" and shall thereafter be required to pay rent at Fair Market Rental, and the Option shall terminate upon a transfer to an Unauthorized Assignee pursuant to Section 23.01. 12.05 Limit on Leasehold Mortgagee Liabilitv. The Leasehold Mortgagee or any person or entity acquiring the leasehold estate created hereby shall be liable to perform Burnham's obligations under this Lease only during the period, if any, in which that entity or person has ownership of the leasehold estate created by this Lease or possession of the Permanent Facilities Site. 12.06 Right of Mortgagee to Cure Defaults. For as long as there is in effect any Leasehold Mortgage, before County may terminate this Lease or any right of Burnham hereunder because of any default under or breach of this Lease by Burnham, County must give written 30 oR1. MAUZONOUTTA 917E2WA DW CIN=4 20G7 9..93 AM 98 `- notice of the default or breach to the Leasehold Mortgagee and afford the Leasehold Mortgagee the opportunity after service of the notice td: A. Cure the breach or default within the time period granted to Burnham for curing a default (and of which the Leasehold Mortgagee received concurrent notice in accordance with Section 6.2 above), when the default can be cured by the payment of money to County or some other person; B. Cure the breach or default within the time period granted to Burnham for curing a default (and of which the Leasehold Mortgagee received. concurrent notice in accordance with Section 12.03 above), when the breach or default must be cured by something other than the payment of money and can be cured within that time; or C. Except for a breach described in Section 14.01(A)(3) or (4), cure the breach or default in any reasonable time that may be required when something other than money is required to cure the breach or default and cannot be performed within the time period granted to Burnham for curing a default, provided that acts to cure the breach or default are commenced within that time period and are thereafter diligently continued by the Leasehold Mortgagee; provided, in no event shall Leasehold Mortgagee be given more than one hundred twenty (120) days from the date of notice to effectuate a cure. Notwithstanding the foregoing, for a breach described in Section 14.01(A)(3) or (4), the Leasehold Mortgagee shall be subject to the same provisions therein, including timeframes). 12.07 Assignment Without Consent on Foreclosure. A transfer of Burnham's leasehold interest under this Lease to any of the following shall not require the prior consent of the Funding Parties; any such transfer shall remain subject to the provisions of 12.04.E. hereinabove: 31 ORLIVWALE6' %M477A 3176=026 DHJ dhJ 2124/W 6:09 AM X98 A. A purchaser at a foreclosure sale of the Leasehold Mortgage, whether the foreclosure sale is conducted pursuant to court order or pursuant to a power of sale in the instrument creating the encumbrance, provided the Leasehold Mortgagee gives the Funding Parties written notice of the transfer, including the name and address of the purchaser and the effective date of the transfer; B. An assignee of the leasehold estate of Burnham pursuant to an assignment in lieu of foreclosure, provided the Leasehold Mortgagee gives the Funding Parties written notice of the transfer, including the name and address of the assignee and the effective date of the assignment; or C. A purchaser or assignee of the purchaser at a foreclosure sale of the Leasehold Mortgage or of the assignee of the leasehold estate of Burnham acquired pursuant to an assignment in lieu of foreclosure, provided the purchaser or assignee delivers to the Funding Parties its written agreement to be bound by all of the provisions of this Lease. ARTICLE XIIl IITLE TO PERMANENT FACILITIES SITE An IMPROVEMENTS 13.01 Coupty &%mentattions. Subject to a disclosure letter to be delivered to Burnham no later than the Effective Date, County, in its proprietary capacity and to its actual knowledge, hereby represents and warrants to Burnham that as of the Effective Date of this Lease: (i) County has full right and authority to make and execute this Lease; (ii) there are no pending or threatened condemnation proceedings or other governmental, municipal, administrative or judicial proceedings that would materially and adversely affect the use of the Permanent Facilities Site for. the Permissible Use, except as set forth in the Governing Documents; (iii) there are no pending or threatened actions or legal proceedings that would materially and adversely 32 OMi%RFALES7WW77,4 3176?(" DNJ dN Y/Y IM7 $23 AM _ 9B affect the use of the Permanent Facilities Site for the Permissible Use; (iv) there are no unpaid special assessments for sewer, sidewalk, water, paving, gas, electrical or power improvements or other capital expenditures or improvements, matured or unmatured, materially and adversely affect the use of the Permanent Facilities Site for the Permissible Use; (v) this Lease and the i consummation of the transaction contemplated in this Lease are the valid and binding obligations of County and do not constitute a default (or an event which, with the giving of notice or the passage of time, or both, would constitute a default) under, nor are they inconsistent with, any contract to which County is party or by which it is bound or the Permitted Exceptions; (vi) there are no outstanding notices of, nor any violations of any law, regulation, ordinance, order or other requirements of any governmental authority having jurisdiction over the Permanent. Facilities Site that would materially and adversely affect the use of the Permanent Facilities Site for the Permissible Use; (vii) except for the obligations set forth in the Governing Documents, County is not obligated upon any contract, lease or agreement, written or oral, that would materially and adversely affect the use of the Permanent Facilities Site for the Permissible Use; and (viii) County agrees to notify Burnham if at any time during the Term of the Lease County becomes aware of any of the foregoing representations and warranties in this section becoming untrue or incorrect in any material respect. For purposes of the foregoing representations and warranties, references to the actual knowledge of County or information of which County is aware shall refer to the knowledge of the Mayor or the County Administrator. 13.02 Ownership of Improvements. During the Term of this Lease, Burnham shall be the owner of all improvements constructed by or for Burnham upon the Permanent Facilities Site, including, but not limited to, the Permanent Facilities, which shall be insured 33 ORUVWAL AW77.I E$f st rOMM a►w dM v Z*W e23 AM simultaneously herewith pursuant to an ALTA Leasehold Owners' Policy in the amount of $79,000,000, subject only to the Permitted Exceptions, as a Project Cost. 13.03 ConyeLance of Permanent Facilities Site. Upon the expiration of the Term, provided Burnham has achieved its Job Commitment in accordance with Section 3.02A herein and has properly exercised the Option hereunder, County shall convey the Permanent Facilities Site and any interest it may have in all improvements. thereon to Burnham, as required and in accordance with the provisions of Articles M and XX1II. ARTICLE XIV TERMINATION, DEFAULTS, REMEDW- 14.01 Termination. A. This Lease may be terminated under the following circumstances: 1. by unanimous written consent of all of the parties to this Lease, or 2. upon termination of the Giant Agreement pursuant to the provisions of Article IX therein; or 3. Subject to subsection B below, upon Burnham committing or suffering to be committed waste to the Permanent Facilities or Permanent Facilities Site; or 4. Subject to subsection B below, any condition, act, or omission occurring in the Permanent Facilities or on the Permanent Facilities Site that is a violation of one or more Environmental Laws resulting in, or reasonably anticipated to result in: a. the significant diminution in value of the Permanent Facilities or the Permanent Facilities Site; or b, the undertaking of significant remedial measures• in order to avoid violation of or obtain compliance with Environmental Laws. 0MAIREALEST"477A 34 90 9B B. In the event County seeks termination based on the circumstances described in subsections A.3 or AA above, County shall provide Burnham written notice of its intent to do so. Upon receipt of such notice from County, Burnham shall have twenty (20) days (the "Cure Period ") to cure the conditions described in such notice, provided however, that if the nature of such condition is such that it cannot practicably be cured within the Cure Period, then Burnham shall have up to an additional ninety (99) days or such additional commercially reasonable period as mutually agreed by Burnham and the Funding Parties to cure (the "Extended Cure Period'), provided that (a) there is no increase in such waste or no further substantial diminution in value as of the end of the Cure Period, (b) Burnham provides the County with documentation reasonably acceptable to the County evidencing the steps taken and to be taken by Burnham to prevent such increase (both present and future), (c) Burnham diligently undertakes and pursues such cure, and (d) Burnham provides the County with documentation evidencing that Burnham is diligently undertaking and pursuing such cure to the County's reasonable satisfaction. If Burnham fails to cure such condition within the Cure Period or Extended Cure Period, as applicable, or to diligently pursue all commercially reasonable cure efforts during the Extended Cure Period, then the County shall have the right to immediately terminate this Ground Lease. 14.02 Effect of Termination. A. Upon termination of this Lease, all rights and obligations of the parties to this Lease shall terminate except as set forth in this Section 14.02. Expiration or termination of this Lease shall not relieve the parties of any obligation accruing prior to such expiration or termination. Except as set forth below or elsewhere in this Lease, the obligations and rights of the parties under the following provisions of this Lease shall survive expiration or termination of 35 ORMWALEOM M77.4 31782/00 8 OHJ dh] 2MZI 0O7 8:33 AM this Lease: Sections 4,03, 6.02, 6.03, 6.04 and 14.02, and Articles 10, 20 and 22 (but Article 22 • shall survive expiration but not early termination). B. Upon termination of this Lease under Section 14.01, Burnham shall promptly convey all its rights and interests in the Permanent Facilities to the Funding Parties or their designee, subject to any security interest in favor of the State of Florida or the Office of Tourism, Trade and Economic Development (uOTTED") under the Security Agreement. Burnham- shall convey to the Funding Parties or their designee the Permanent Facilities "as is" without warranty or representation of any kind whatsoever, except that Burnham shall represent and warrant that it has the right to convey title of the Permanent Facilities to the Funding Parties or their designee free of all liens, restrictions, leases and encumbrances, except for, the Permitted Exceptions and subject to the terms of the Gift Agreement (Permanent Facilities) and this Lease, as applicable; provided, however, that, if such representation and warranty is not true as of the date of conveyance of the Permanent Facilities, and the Funding Parties elect to receive conveyance of the Permanent Facilities, Burnham will concurrently enter into any documents reasonably requested by the Funding Parties to facilitate putting the Permanent Facilities in the requested condition in accordance with such representation and warranty but shall have no other obligation. Burnham shall remove all of its personal property from the Permanent Facilities Site and the Permanent Facilities prior to surrender. Any personal property of Burnham not removed prior to surrender shall become the property of the Funding Parties upon surrender of the Permanent Facilities Site to County and conveyance of the Permanent Facilities to the Funding Parties. Burnham shall not remove any fixtures from the Permanent Facilities or the Permanent Facilities Site that (i) were acquired with Grant Funds or (ii) that would cause material damage to the function or structure of the Permanent Facilities or the Permanent Facilities Site which Z ORLIMALe8 B8477.4 31762/ M DW dN Wl/2007 8:33 AM � 98 cannot be fully repaired prior to surrender by Burnham. Should Burnham be entitled to remove fixtures that were acquired through the use of funds other than the Grant Funds, as a condition of any such removal, Burnham shall provide reasonable evidence to the Funding Parties as to the source of funds used to acquire such fixtures and shall restore the Permanent Facilities impacted by such removal to the reasonable satisfaction of the Funding Parties. Burnham shall also assign any and all rights in and to the Plans and Specifications to the Funding Parties or their designee. 14.03 MI terial Default. A. In the event of a breach by Burnham of any material term of this Lease to be observed or performed by Burnham .(but only if such breach is not due to the breach of any obligation of County under this Lease or to a breach of any Funding Party under the Governing Documents) (a `Burnham Material Breach "), the County shall provide written notice to Burnham of such Burnham Material Breach. Burnham shall cure such Burnham Material Breach, or if such Burnham Material Breach is not capable of cure, Burnham shall promptly report to the County regarding the circumstances that led to the Burnham Material Breach, the impact of the Burnham Material Breach on Burnham and how Burnham intends to mitigate any anticipated or actual adverse impact. Such reports to the County shall occur as promptly as possible after notification to Burnham that a Burnham Material Breach has occurred, and shall continue until the Burnham Material Breach has been cured or until the County is reasonably satisfied that any Burnham Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of Burnham to continue to operate as contemplated by this Lease. If Burnham and the County are unable to resolve the Burnham Material Breach within one hundred twenty (120) days, either by its cure or by the Funding Parties' satisfaction that Burnham can continue to operate as contemplated by this Lease, then any party may pursue 37 OKIMRSA LeM9"77A 317*Z=2$ OW dM 21Y JM7 0:81 AM appropriate legal or equitable remedies for such Burnham Material Breach; provided that in no event shall this Lease or any other agreement between or among the parties be terminated as a result of such Burnham Material Breach, except as expressly provided in Section 14.01. B. In the event of a breach by County of any of the provisions of this Lease that result in Burnham not having the ability to use at least seventy -five percent (75 %) of the Permanent Facilities for the Permissible Use for a period in excess of sixty (60) days, whether by eviction, constructive eviction or otherwise (but only if such breach is not due to the breach of any. obligation of Burnham under this Lease or any other agreement contemplated hereby) (a "Specifle Breach'), Burnham shall provide written notice to the County of such Specific Breach. If the County does not cure such Specific Breach within five (5) Business Days of notice of such Specific Breach, Burnham may (a) terminate this Lease upon written notice to the County, and/or (b) pursue appropriate legal or equitable remedies for such Specific Breach and, to the extent' that Burnham does not terminate this Lease, Burnham shall not be obligated to observe or perform any of its obligations under this Lease or other agreement between Burnham and the Funding Parties until such Specific Breach is cured or appropriate legal or equitable remedies for such Specific Breach are in effect. C. In the event of a breach by the County of any material term of this Lease to be observed or performed by the County (but only if such breach is not due to the breach of any obligation of Burnham under this Lease or any other agreement contemplated hereby) (a "County Material Breach', Burnham shall provide written notice to the County, with a copy to the other Finding Parties, of such County Material Breach. The County shall cure such County Material Breach, or if such County Material Breach is not capable of cure, the County shall promptly report to Burnham regarding the circumstances that led to the County Material Breach, 38 ORL7M.AWSr"6477./ 31767046 OW dN 4l2== 5.93 AM 9B the impact of the County Party Material Breach and how the County intends to mitigate any anticipated or actual adverse impact. Such reports to Burnham shall occur as promptly as possible after notification to the County that a County Material Breach has occurred, and shall continue until the County Material Breach has been cured or until Burnham is reasonably satisfied that any County Material Breach that is not capable of being cured, cannot reasonably be expected to impede the ability of Burnham to continue to operate as contemplated by this Lease. If Burnham and the County are unable to resolve the County Material Breach within one hundred twenty (120) days, either by its cure or by Burnham's satisfaction that the County can continue to perform as contemplated by this Lease, then any party may pursue appropriate legal or equitable remedies for such County Material Breach; provided that in no event shall this Lease or any other agreement between or among the parties be terminated as a result of such County Material Breach, except as expressly provided in Section 14.03(13). 14.04 Exclusivity of Remedies. The remedies specifically enumerated in this Lease are intended to be exclusive of any other remedy. in the event of a default described in 14.03(A), (B) or (C), the nondefaulting parry, unless another remedy is specifically enumerated in this Lease, may elect, as its exclusive remedy to seek specific performance to the exclusion of all other remedies. In no event will Burnham's liability under this Lease, including, without limitation, any obligations under Section 10 exceed any payments actually made to Burnham pursuant to the Grant Agreement less any amounts previously expended by Burnham in good faith and, if applicable, Burnham's reasonable demobilization costs as described in Part IX.C.2. of the Grant Agreement. 14.05 Exercise of Remedies for Burnh -r Material Default. Notwithstanding any other provision of this Agreement, recourse to any remedies regarding a Burnham Material Default 39 oRLt1REAlEgrk60177A 3+revoose one and vrrrloor OW AM 9B s ' under Section 14.03(A) shall not occur without the consent of a combination of the Funding Parties that have contributed at least fifty -one percent (51%) of the aggregate consideration I. provided by the Funding Parties under the Grant Agreement, based upon the amount of the Grant Funds released and the value of land donated under the Grant Agreement. h ARTICLE XV SURRFMJR AND HOLDOVER 15.01 Surrender of Permanent FWlitim Site. Provided Burnham has not exercised or is ti not entitled to exercise the Option in accordance with Articles III and XXIII upon expiration of i this Lease or termination of this Lease prior to. its expiration, Burnham shall immediately vacate and surrender the Permanent Facilities "Site to County, and shall convey the Permanent Facilities to the Funding Parties or their designee without cost or expense to the Funding Parties. Burnham shall remove all of its personal property from the Permanent Facilities Site and the Permanent Facilities ' to surrender in accordance with Section 14.02. 15.02 Holdover. Unless the parties enter into a separate lease for the Building Space as contemplated by Section 3,02(D), in the event Burnham shall holdover, refuse, or fail to relinquish possession of the Permanent Facilities Site at the expiration of the Term or termination of this Lease prior to its expiration without having exercised the Option in accordance with its terms, Burnham shall be liable to County for any and all compensatory damages, (but not any consequential or punitive damages) including, but not limited to, Fair Market Rental of the Permanent Facilities Site. In the event of a holdover during the time between Burnham's exercise of the Option and the conveyance of the Permanent Facilities Site to Burnham, Burnham may remain in the Permanent Facilities under the same terms of this Lease (i.e., no obligation for Fair Market Rental) for the period of time necessary to consummate the conveyance, but in no event longer than six (6) months. 40 ORL1V WLE3118 WIA j 91782087.8 DHJ cbJ 2/17!2007 8:33 AM t r- ARTICLE XW ASSIgMSNT, SUBLETTING AND TRMSFE R Except for an assignment permitted pursuant to Part N.A. or Part XI of the Grant Agreement, Subleasing Activities or as specifically provided in this Article, during the Term of this Lease, Burnham shall not, in any manner, assign, sublease or otherwise transfer an interest in this Lease, the Permanent Facilities Site, the Permanent Facilities or any part thereof ( "Assignment "), without the prior written consent of County, City and LNLC, which consents may be granted or withheld in County's, City's and LNLC's sole discretion; provided, however, that Burnham may assign any or all of its rights, interests and obligations hereunder to any of its wholly -owned subsidiaries or affiliates without such prior consent; provided, Burnham shall be required to provide the Funding Parties with written notice of any such Assignment at the time of such Assignment and as a condition of any Assignment becoming effective, together with such other documents as may reasonably be .requested by the Funding Parties to substantiate Burnham's compliance with the foregoing. Any attempted Assignment without the requisite approval, if applicable, shall be nult and void. This provision shall be construed to include a prohibition against any assignment or other transfer by operation of law, legal process, receivership, bankruptcy, or otherwise, whether voluntary or involuntary. In the event County, City and LNLC consent in writing to an Assignment as aforesaid, Burnham shall have the right to assign to the extent permitted by such consent to such Assignment, provided, that the use of the Permanent Facilities Site shall be limited to the Permissible Use. Any permitted Assignment shall be subject to the same conditions, obligations and terms as set forth herein, and Burnham shall be fully responsible for the observance by its assignees of the terms and covenants contained in this Lease. Notwithstanding anything herein to the contrary, in the event of an approved Assignment, Burnham sball remain primarily liable for al 0Kiey a o= oDW 4W ZVZ/i2007 e:33 AM fulfilling all obligations, terms, and conditions of this Lease, throughout its entire Term. Any exercise by the holder of a Leasehold Mortgage of its rights under such Leasehold Mortgage, including any right to step into Burnham's place in this Lease, shall not be a violation of this Article 16, and County shall recognize the holder of such Leasehold Mortgage as the lessee k hereunder. t Except for an assignment to City and LNLC which assignment shall not require the consent of Burnham, County may not assign this Lease without the consent of Burnham. Any other such assignment without Burnham's approval shall be null and void. ARTICLE XVD SIGNS 17.01 Intentionally omitted. 17.02 Sips. Burnham shall be entitled to install such signage upon the Permanent Facilities Site as Burnham deems appropriate, 'subject to any applicable provisions of the Permitted Exceptions. Burnham shall install such signage at Burnham's sole cost and expense, unless fiends are available for same as part of the Budget under the Grant Agreement, in accordance with the requirements of this Lease and in full compliance with the Permitted Exceptions and all applicable codes, ordinances and regulations. ARTICLE XVIII ,AWS,, , GULATIO�T�S AND PERMITS 18.01 General, Throughout the Term of this Lease, Burnham, at its cost and expense, shall remain in material compliance with all statutes, regulations, rules, rulings, orders, ordinances, covenants, restrictions or directives of any kind or nature (whether public or private), as same may be amended, of any and aU federal, state, county, municipal or local governmental 42 orL1wWAU9nW847?A 31 teaMn DHJ dry ?l22=7 833 AM 90 bodies now or hereafter which are applicable to Burnham or its use of the Permanent Facilities Site. 18.02 Permits and Licenses fterallX. Burnham, at its sole cost and expense, shall be responsible for obtaining, paying for, and maintaining current, and complying in all material respects with, any and all applicable permits, licenses and other . governmental authorizations, however designated, as may be required at any time throughout the Term of this Lease or any extension thereof by any federal, state, county or local governmental entity or any court of law having jurisdiction over Burnham or Burnham's operations and activities, for any activity of Burnham conducted on the Permanent Facilities Site. Upon the written request of County, City or LNLC, Burnham shall provide to County, City and LNLC certified copies of any and all permits and licenses which County, City or LNLC may request. 18.03 Env irommental and Natural Resource Laws, R, egalations and Permits. A. Burnham shall comply with all Environmental Laws to the extent applicable to activities on the Permanent Facilities Site, B. Burnham and County hereby acknowledge and understand that Burnham's operations performed pursuant to this Lease may involve the generation, processing, handling, storing, transporting and disposal of certain hazardous and/or toxic materials which are, or may be, subject to regulation by applicable Environmental Laws. C. Burnham will remain in compliance with all material applicable Environmental Laws as applicable to Burnham's operations at the Permanent Facilities Site, including, without limitation, such laws applicable to: (a) the generation, processing, handling, storing, transporting and disposal of any Hazardous Substances; (b) air and water pollution relating to Burnham's use or occupancy of the Permanent Facilities Site or any subletting 43 oWYMAL AW77A HS 31TUAM8 DW C" ?/27=7 SM AM 96,� thereof; (c) oil spills on the Permanent Facilities Site occurring at any time during the Term of this Lease; and (d) the discharge of cooling water and industrial storm water drainage from the Permanent Facilities Site. Burnham will handle and dispose of any and all such Hazardous Substances, including, without limitation, biomedical and biohazardous materials, in a manner which is both safe and in full compliance with any and all applicable Environmental Laws. None of the foregoing obligations shall be deemed an assumption by Burnham of any liability of the County, LNLC or any other person or entity, relating to any Hazardous Substances which are determined.to have been deposited on or under the Permanent Facilities Site at any time prior to the commencement of this Lease, or for any Hazardous Substances which are or may come to be located in the ground water or soils of the Permanent Facilities Site as the result of surface or subsurface migration from any adjacent land (other than the Surplus Land, if attributable to Burnham's activities at the Surplus Land) or waterway. D. Subject to the limitations set forth in paragraph' 18.03.0 above, Burnham k. hereby expressly assumes and accepts full responsibility and liability for compliance with all applicable Environmental Laws in the . handling and disposal of any and all Hazardous Substances resulting from or arising out of Burnham's operations conducted on the Permanent Facilities Site, and Burnham shall, prior to commencement of any such operations pursuant to this Lease, secure any and all permits, and properly make all necessary notifications as may be required by any and all applicable Environmental Laws. Burnham further represents and covenants to the Funding Parties upon which such Funding Parties expressly rely, that Burnham, its employees, agents, contractors, and those persons that are required to be so trained working for, or on behalf of, Burnham have been fully and properly trained in the handling of all such 44 ORL77RBAI UT IW77A 3176 =n M dry 2=12007 6.93 AM 98 Hazardous Substances, and that such training, at a minimum, is in material compliance with any and all applicable Environmental Laws, E. Burnham shall provide, upon request, from time to time, to County, City and LNLC satisfactory documentary evidence of all such requisite legal permits and notifications, as are hereinabove required and as may be further required, F. If, in respect of its operations at the Permanent Facilities Site, Burnham is deemed to be a generator of hazardous waste, as defined by applicable Environmental Laws; (1) To the extent required by applicable Environmental Laws, Burnham shall obtain an EPA identification number 'and the appropriate generator permit and shall comply with all material requirements imposed upon a generator of hazardous waste including, but not limited to, ensuring that the appropriate transportation and disposal of such materials are conducted in material compliance with the law; (2) Burnham shall compile and maintain an accurate inventory list (including quantities) of all hazardous, toxic, and other contaminated or polluted materials as required by applicable Environmental Laws, and make the same available at all times for inspection at any time by LNLC and County and/or City officials in accordance with the requirements of applicable Environmental Laws; provided that such inventory list shall be treated as Burnham's proprietary information and shall not be publicly disclosed without Burnham's prior written permission, except as required under applicable Public Records laws or Environmental Laws; and (3) During any portion of the Term that Burnham is storing, handling or generating hazardous materials or waste at the Permanent Facilities Site, Burnham shall provide an emergency coordinator and phone number to the Orange County Risk Management 45 ORl. MALKSM66r77A 3176?OM DW 6hl7/ =007 SWAM 96 Department -- Safety Division, and to all appropriate Governmental entities having jurisdiction ' thereof in case of any spill, leak, or other emergency situation involving hazardous, toxic, fl ammable, and/or other pollutant/contaminated materials. G. Notwithstanding any other provision of this Lease, Burnham shall be i strictly liable for, hereby expressly assumes all responsibility for,'and indemnifies the Funding Parties from and against, all citations, fines, environmental controls and monitoring, clean up and disposal, remediation, restoration and corrective measures resulting from or in any way connected with the improper use, handling, storage, and/or disposal of all hazardous waste and/or toxic materials, pollutants or contaminated materials, by Burnham or by Burnham's employees, sublessees,, invitees, guests, representatives, agents, suppliers of service or furnishers of materials, contractors, their subcontractors and any person or entity for whom they may be responsible, regardless of whether or not a default notice has been issued and notwithstanding any other obligations imposed upon Burnham pursuant to the terms of the Lease. Buraham's obligations under this Article shall be deemed cumulative in nature and shall survive expiration or termination of this Lease, but only in respect of any such improper use, handling, storage and/or disposal of such hazardous waste and /or toxic materials, pollutants or contaminated materials by Burnham occurring prior to such expiration or termination. 18.04 County Rgpmotations. County, in its proprietary capacity and to the best of its knowledge, represents and warrants to Burnham, based solely on the Phase I and without independent actual knowledge to the contrary that: (i) the Permanent Facilities Site are in full compliance with all Environmental Laws; -(ii) there has been no discharge of hazardous substances and/or toxic materials, pollutants or contaminated materials at the Permanent Facilities Site in violation of, or which could result in liability under, applicable environmental 46 OMIYWAlEPW6477.4 31782=n DFU dN ?I4 OO? 0:99 AM 1 98 laws; (iii) there are no underground storage tanks in, on, at, under or about the Permanent Facilities Site; and (iv) no claim, action, suit or proceeding is pending or threatened against County or any third party arising directly or indirectly out of the foregoing, nor is County aware of any basis for such a claim, actions, snit, or proceeding. ARTICLE XIX DISCLAMER OF LIABILITY I 19.01 By Burnham, BURNHAM CERTIFIES THAT BURNHAM HAS INSPECTED THE PERMANENT FACILITIES SITE AND, SUBJECT TO THE PROVISIONS OF THIS LEASE, THE GIFT AGREEMENT (PERMANENT FACILITIES) AND THE GRANT AGREEMENT, ACCEPTS SAME "AS IS ", IN ITS EXISTING CONDITION, AS OF THE EFFECTIVE DATE OF THIS LEASE, TOGETHER WITH ALL DEFECTS, LATENT OR PATENT, IF ANY, AND SUBJECT TO THE PERMITTED EXCEPTIONS. BURNHAM FURTHER ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN THIS LEASE, THE GIFT AGREEMENT (PERMANENT FACILITIES) AND THE GRANT AGREEMENT, COUNTY, CITY AND LNLC HAVE MADE NO WARRANTIES OR REPRESENTATIONS OF ANY NATURE WHATSOEVER REGARDING THE PERMANENT FACILITIES SITE, INCLUDING, WITHOUT LIMITATION, ANY RELATING TO THE PHYSICAL CONDITION OF THE PERMANENT FACILITIES SITE OR ANY IMPROVEMENTS LOCATED THEREIN, OR THE SUITABILITY OF THE PERMANENT FACILITIES SITE OR IMPROVEMENTS FOR BURNHAM'S INTENDED USE OF THE PERMANENT FACILITIES SITE. ARTICLE XX COUNTY'S LIEN AND SECURITY IlVTEREST 47 0RL1W@ALR"8477.4 9170210028 DHJ dN 2!2212007 S.-M AM Except as otherwise provided herein, County waives its statutory landlord's lien rights with respect to the personal property and trade fixtures of Burnham. Further, County acknowledges this Lease does not create a security interest for the use and benefit of County in and to the personal property, equipment or inventory (exclusive of Permanent Facilities fixtures) of Burnham. ARTICLE XXI 21.01 Mutual Limitation on Liability. Except as set forth elsewhere herein, no party (inclusive of City and LNLC) shall be liable to the other for any claims for compensation or any losses, damages or injury whatsoever sustained by any other party or any person whomsoever resulting from failure of any water supply, heat, air conditioning, electrical current, or sewerage or drainage facility (except to the extent any of the foregoing shall be attributable to Burnham's lack of care or maintenance), or caused by natural physical conditions on the Permanent Facilities Site, whether on the surface or underground, including stability, moving, shifting, settlement of ground, or displacement of materials by fire, water, windstorm, tornado, hurricane, act of God or state of war, civilian commotion or riot, or any cause beyond the control of all such parties. All personal property placed on or moved onto the Permanent Facilities Site shall be at the sole risk of Burnham or owner thereof. County shall not be liable for any damage or loss of said personal property. NO PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY RIGHTS GRANTED IIM0 7".!!7"- 21.42 .Characterization of Rights, Etoetera. Notwithstanding anything herein to the contrary, the parties acknowledge and agree that all rights, gifts, grants, contributions, monies 48 0aUMALESTWO477.4 31762== DW an) 2r4rW 0:33 un O � and proceeds of insurance, sale proceeds or condemnation awards, attributable to any property referenced herein are grants or contributions designated by County and the other Funding Parties to the specific purpose of establishing a biomedical research institution at the Burnham Campus in accordance with the terms and conditions of this Lease, the Grant Agreement and the tuft Agreement (Permanent Facilities). As a result, the parties acknowledge and agree that all rights, gifts, grants, contributions, monies and proceeds of insurance, sale proceeds or condemnation awards attributable to any property referenced herein are not "Gross Revenues" and shall not be part of the "Gross Revenue Funds," as such terms are defined in the Bond Documents because all such gifts, grants, contributions, monies and proceeds of insurance, sale proceeds or condemnation awards are acknowledged to be designated by the maker thereof to a specific purpose inconsistent with their use for the payment of principal of, premium, if any, and interest on any indebtedness or for the payment of operating expenses as described in the Bond Documents and are hereby deemed to be subject to or financed under a separate financing arrangement. 21.03 Limitation on Burnham Liapili . So long as Burnham's obligations under the Bond Documents remain outstanding, County agrees that it shall not (and the Funding Parties shall not be entitled to) seek to recover any award or enforce any judgment against any assets of Burnham that are pledged as security for such obligations under the Bond Documents. So long as Burnham's obligations under the OTT}?D Agreement remain outstanding, County agrees that it shall not (and the Funding Parties shall not be entitled to) seek to recover any award or enforce any judgment against any assets of Burnham that are pledged under the Security Agreement. ARTICLE XXII MLA OF THE PARTIES 49 ORL11RFME8T188M77.4 81 70210M OW d" 21221W? 8;33 AM 9B Burnham, or any successor in interest, to this Lease, is and shall be deemed to be an independent contractor and operator and shall be solely responsible to all third parties for its respective sots or omissions, and County shall in no way be responsible therefor. ARTICLE XX M OPTI O ZURCUSE 23.01 0 do , County hereby grants Burnham and its permitted assigns pursuant to i Part XI of the Grant Agreement only, an option to purchase the Permanent Facilities Site at the expiration of the Term of this Lease (the " Option'j, The exercise price for the Option shall be One Dollar ($1.00). The Option may be exercised by Burnham only if (i) this Lease is not terminated under Section 14,01, and (ii) Burnham is not then in Material Default hereunder, and (iii) Burnham has met its Job Commitment in accordance with Section 3.02A herein, and (iv) Burnham. remains in material compliance with the terms of its determination from the Internal Revenue Service that it meets the requirements of Section 501(c)(3) of the United States Internal ` Revenue Code, as it may be amended from time to time, The Option shall terminate upon the earlier to occur of (i) a transfer to an Unauthorized Assignee, or (ii) twenty -five (25) years plus thirty (30) days after the Effective Date. 23.02 Exercise of Qption. Burnham shall begin exercise of the Option by delivering written notice of Burnham's exercise of the Option to County, City and LNLC at least six (6) months prior to the date of expiration of the Term. Upon receipt of, notice of the Option's exercise, the Funding Parties shall have one hundred twenty (120) days to complete an independent audit of Burnham's operation as provided under the Grant Agreement to determine Burnham's compliance with the Option conditions provided in Articles M and XXIII hereunder. Notwithstanding any provision of this Lease or the Grant Agreement to the contrary, the compliance audit provisions of the Grant Agreement shall survive their expiration thereunder 50 ORLflREALESM5477A �176?lOD26 OW 4" ?/Y?W? SM AM • only to the extent necessary to accomplish the purposes of this subsection. The Option shall not be considered exercised until Burnham and the County agree that the conditions to its'exercise in Articles III and XXIII have been satisfied. 23.03 Cl si . Closing of any conveyance contemplated hereby shall occur at the place of County's choosing upon a date mutually agreeable to the parties on or before ninety (90) days following exercise of the Option. County shall convey the Permanent Facilities Site "As Is" without warranty or representation of any kind whatsoever, subject only to the Permitted i Exceptions and any additional matters of record contemplated or required by the Governing Documents. County shall convey the Permanent Facilities Site by County Deed in the form of Exhlblt =1C" attached hereto and incorporated herein by this reference, which shall, if conveyed prior to the expiration of the fifteenth (15`) year after the Effective Date, contain a reverter in favor of the County as provided in Article III herein. As a condition of Closing, Burnham shall be responsible for (i) any financial obligations to the Funding Parties hereunder that have not been met, together with interest thereon at the statutory rate accrued from the date such obligation was incurred by the Funding Party(ies); and (ii) all closing costs associated with the conveyance; provided, however, that the County shall cooperate with Burnham in taking any steps Burnham deems reasonably necessary to reduce the amount of documentary stamp taxes on such conveyance. ARTICLE XXIV MISC&L SOUS 24.01 Waiver. The failure of any party to insist on a strict performance of any of the agreements, terms, covenants and conditions hereof shall not be deemed a waiver of any rights or remedies that such party may have for any subsequent breach, default, or non - performance, and such party's right to insist on strict performance of this Lease shall not be affected by any 51 0MURlM UTW""A 317IZOM DW dN ZI WW7 033 AM • VA-1 previous waiver or course of dealing. The consent or approval by County, City or LNLC to or of any act by Burnham requiring County's, City's or LNLC's consent or approval shall not be deemed to waive or render unnecessary County's, City's or LNLC's consent to .or approval of f any subsequent similar act by Burnham. i 24.02 Governmental Authority. Nothing in this Lease shall be construed to waive or i limit any governmental authority County has as a political subdivision of the State of Florida to regulate Burnham or its operations. County's agreements under this Lease are made in a i Proprietary capacity as owner of the Permanent Facilities Site, rather than in a governmental capacity, and such agreements shall not be construed as limiting, prohibiting or eliminating the obligation of the parties to comply with all rules, regulations, ordinances, statutes and laws applicable to such party, nor alter or impair County's governmental functions, including, without limitation, County's right to exercise its regulatory authority over the development and operation -, of the Permanent Facilities Site, nor as enabling, permitting, or creating any cause of action or claim arising out of the exercise of County's governmental authority. 24.03 SoWability. If any term of this Lease or the application thereof to any person or circumstances shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Lease shall be valid and enforceable to the fullest extent permitted by law. 24.04 QQvernina Lave. This Lease shall be governed by and in accordance with the laws of the State of Florida. 52 ORLIMMAEMOM77.4 W7O= $"drysWM"6=AM 98 24.05 Venue. Venue in any action, suit or proceeding in connection with this Lease shall be filed and held in any State or federal court of competent jurisdiction located in Orange County, Florida. 24.06 Notices. All notices and elections (collectively, "notices'l to- be given or delivered. by or to any party hereunder, shall be in writing and shall be (as elected by the party giving such notice) hand delivered by messenger, facsimile courier service or overnight mail, or alternatively shall be sent by United States Certified Mail, with Return Receipt Requested. The effective date of any notice shall be the date of delivery of the notice if by personal delivery, facsimile, courier services or overnight mail, or if mailed, upon the date which the return receipt is signed or delivery is refused or the notice designated by the postal authorities as non- deliverable, as the case may be. The parties hereby designate the following addresses as the addresses to which notices may be delivered, and delivery to such addresses shall constitute binding notice given to such party: If to County: Orange County, Florida 201 S. Rosalind Ave. Orlando, Florida, 32802 Attention: Orange County Administrator Facsimile:(407) 836 -7399 With a copy to: Orange County Attorney's Office 201 South Rosalind Avenue, 3' Floor Orlando, Florida 32801 Attention: County Attorney Facsimile: (407) 836 -5888 With a copy to: . Orange County Florida 400 East South Street, Fifth Floor Orlando, Florida 32801 Attn: Manager, Real Estate Management Division 53 oruIWEAUM a UTTA 317024Me au dry 2P4*W M AM Facsimile: (407) 836 -5969' If to Burnham: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Chief Operating Officer Facsimile: (858) 646 -3184 With a copy to: i Burnham Institute for Medical Research 10901 North Torrey Pines Road. La Jolla, California 92037 Attn: Vice President, Business Development Facsimile: (858) 646 -3104 With a copy to: Cooley Oodward Kronish LLP 4401 Eastgate Mall San Diego, CA 92121 -1909 Attn: Kay Chandler, Esq. Facsimile: (858) 550 -6420 With a copy to: Shutts & Bowen LLP 300 S. Orange Ave., Suite 1000 Orlando, Florida 32801 -5403 Attn: Michael J. Grindstaff, Esq. Facsimile: (407) 425 -8316 If to City or LNLC as third party beneficiaries: If to City: Chief Financial Officer City of Orlando, Florida 0 Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile (407) 246 -2707 With a copy to: 54 ORL7WME871888g7,4 W62/ 0 A 1*U dH?f72=7 813 AM City Attorney City of Orlando, Florida 3''a Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile (407) 246 -2854 If to LNLC: Lake Nona Land Company, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Facsimile: (407) 438 -0207 With a copy to: Tavistock Corporation 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Thakkar, Chief Executive Officer Facsimile: (407) 876 -0085 and Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Facsimile: (407) 650 -0920 am Any party may from time to time change the address to which notice under this Lease shall be given such party, upon three (3) days' prior written notice to the other parties. 24.07 P9190ph Headings. The heading of the various articles and sections of this Lease, and its Table of Contents, are for convenience and ease of reference only, and shall not be construed to define, limit, augment or describe the scope, context or intent of this Lease or any part or parts of this Lease. 24.08 Memorandum of Lease. The parties shall execute and record the Memorandum of Lease attached hereto as Exhibit "D" in the Public Records of Orange County, Florida ORLIIRRALE.lT1EEE{77.4 317E ? /002E WiJ diJQ2007 8:33 AM 55 ,�I immediately after execution of this Lease. In the event of expiration or termination of this Lease, Burnham shall promptly execute and deliver a termination of lease in recordable form to County. In the event Burnham fails to provide the aforementioned termination of lease within thirty (30) days after County's written request therefor, County shall be entitled to execute the same for and on behalf of Burnham and Burnham hereby appoints County as its attorney in fact for the limited purpose of execution of such termination of lease. The provisions of this Section shall survive expiration or termination of this Lease. 24.09 Binding Effect. The terms, conditions and covenants of this Lease shall inure to the benefit of and be binding upon the parties hereto and their permitted successors, assigns and subtenants, if any. This provision shall not constitute a waiver of any prohibition or limitation contained herein relating to assignment or subletting. 24.10 Performance. The parties expressly agree that time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. 24.11 Waiver of Jury Trial. THE PARTIES HERETO WAIVE TRIAL BY JURY IN CONNECTION WITH PROCEEDINGS OR COUNTER CLAIMS, BROUGHT BY ANY OF THE PARTIES HERETO AGAINST THE OTHER(S), IN CONNECTION WITH THIS LEASE. 24.12 Construction. No party shall be considered the author of this Lease since the parties hereto have participated in extensive negotiations and drafting and redrafting of this document to arrive at a final Lease. Thus, the terms of this Lease shall not be strictly construed against one party as opposed to the other party based upon who drafted it. In the event that any section, paragraph, sentence, clause, or provision hereof, shall be held by a court of competent 56 0FiL11RE/ arm"".4 31 762=9 DW dM 2i12/sW $= /M I i jurisdiction to be invalid, such shall not affect the remaining portions of this Lease and the same shall remain in full force and effect. 24.13 Broker's Commission. Burnham and County each represents and warrants to each other that it has not dealt with any real estate salesperson, agent, finder or broker in connection with this Lease. Burnham and County each indemnify and hold each other harmless from and against any claim or breach of the foregoing representation and warranty. 24.14 Entirety of Agreement. The parties agree that this Lease and the other Governing Documents set forth the entire agreement and understanding between the parties and supersede all prior negotiations, representations, understandings or agreements, whether oral or written, between the parties or made by third patties to either party and there are no promises, covenants, agreements, representations, warranties or understandings between the parties other than those stated herein. None of the provisions, terms and conditions contained in this Lease may be added to, modified, superseded or otherwise altered except by written instrument executed by the parties hereto. 24.15 Incorporation bxReigrences. Exhibits attached hereto and referenced herein shall be deemed to be incorporated in this Lease by such reference. 24.16 Radon. 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 County's public health unit. 24.17 Consent. In the event this Lease indicates that a party's consent shall not be unreasonably withheld, such consent shall not be unreasonably withheld, delayed or conditioned. OKIWEALE9MG477.4 31 7 6 810 0 28 DHJ CN V2MW7 813 AM 57 i 9Bi In the event this Lease indicates that a party's consent may be granted or withheld at such party's sole discretion, such consent may be granted or withheld at such parties sole and absolute discretion for any reason or no reason at all. 24.18 Third Party Beneficiaries/Enforcement. City and LNLC shall have third party 4 enforcement rights of the terms, provisions and restrictions of this Lease. Exercise of the i 4 enforcement rights as to such terms, provisions and restrictions shall be at the discretion of City and LNLC, and any forbearance on behalf of City or LNLC to exercise its rights hereunder in the event of any breach hereof by Burnham, shall not be deemed or construed to be a waiver of such party's rights hereunder. IN WITNESS WHEREOF, County has caused this Ground Lease Agreement to be signed by the Chairman of the Board of County Commissioners and the seal of said Board to be affixed hereto and attested by the Clerk of said Board, pursuant to the authority granted by said Board, and Burnham Institute for Medical Research has caused thgse presents to be signed in its lawful name by John C. Reed, M.D., Ph.D., its`duly authorized President and Chief Executive Officer , acting on behalf of said Burnham, and the seal of said Burnham to be affixed hereto the day and year first written above. 58 OpL1VtU� 1LES7168N7'1A 31762A028 DW dfr 212N2007 8:33 AM ATTEST: Martha O, Haynie, County Comptroller As Clerk of th f County Commissioners By Deputy Clerk Date: MAR 0 6 2007 Mr.,] ORANGE COUNTY, FLORIDA By: Board of Cou ty ConuntnNnfrs By: Richar T. Crott Orange County Mayor Date: Oyc t b, 0-100I ATTEST: Signed, sealed and delivered in the presence of two witnesses for Burnbarn V Signature Senn a' S , ''t"obiN Typed or Printed Name Typed or Printed Name OR1.1VtEALESTe8" A '17e2l002e DHJ dhj ?JII2IY007 l:33 AM BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit corporation By; L '� M.D., P D. PreAqqdt and Chief Executive Officer .1 V • _� V41#1 C M i STATE OF XU !Z1D4 SS.. COUNTY OF Q12AK)4E _] The foregoing Agreement was acknowledged before rrie this JF2!� day of 2007, by John C. Reed, M.D,, Ph,D.the President and Chief Executive Officerof Burnham Institute for Medical Research, a California non -profit public benefit corporation, who is perms nally known to me OR who produced as iden 'fication and who d/id�� take an oath. �d ��r ►us1� GYHTFNREU210663 4 BOW -V"" 1 10538236 2.DOC 61 ORL1 AEALE871886477.4 31762/0028 CZ dtg 217M007 8:33 AM Public Print Notary Name NOTARY PUBLIC State of at Large My Commission Expires: C1 ` • l Schedule 1 . Definitions "Account" shall mean that certain separate, restricted, interest - bearing escrow account established pursuant to the terms of the Escrow Agreement. "Agneeed Aygme Wage" means 130% of the average private sector wage in Orange County, Florida as determined by the Agency for Workforce innovation ("AWr') in the most recently released ES 202 Report during the year in which Agreed Average Wage is being measured for purposes of the Grant Agreement. As of the Effective Date of the'Grant Agreement, the Agreed Average Wage based on AWI's most recent ES 202 Report (2004) is $46,965 (130% of $36,127, the average private sector wage in Orange County, Florida). The term "wage" includes all wages, salaries, commissions, bonuses, drawing accounts (advances to employees against future earnings), prizes and awards (if given by employer for employment), vacation pay, payment to employees of difference between regular pay and jury pay, payments to employees temporarily absent while in military service, wages earned before death but paid after death, dismissal pay, sick pay (not made under a plan or system) and supplemental payments (difference between workers' compensation and employee's salary). "Approved Architecgid Criteri a" shall mean certain restrictions, limitations and design criteria for .development and construction of improvement within the Lake Nona DRI adopted pursuant to the Master Declaration. "Approved Design Progran}" shall mean the Space Program, schematic design and construction schedule established pursuant to the terms of the Development Obligation Agreement for the Permanent Facilities. "Architect" shall mean the architect, including its employees, agents and subcontractors, retained by Burnham or the Project Manager to provide professional design and engineering services for the Temporary Facilities or for the Permanent Facilities under an Architect Agreement. "Architect Agreement" shall mean the Consultant Contract between Burnham or the Project Manager and Architect, as same may be amended from time to time. "Available Funds" shall mean the Grant Funds (inclusive of any interest on such funds escrowed in the Account), less any and all amounts previously expended or committed for the Permanent Facilities from such funds pursuant to the terms of the Development Obligation Agreement and the Grant Agreement, or expended, committed or budgeted from such funds for the Temporary Facilities under the terms of the Grant Agreement. `Base Funding Amount" shall mean the initial amount of the Tier 1 Funds contributed by the Funding Parties to the Account; in the amount of $7,000,000, in accordance with Part V.A.3.a. of the Grant Agreement. "Boggy Creek CDD" shall mean the Boggy Creek Improvement District. ORLIM&SOW ".t 31?VZV saDWalar4'rAWaa2 • • "Bond Default" means an event of default under the Bond Documents which (a) would entitle the County of San Diego or the Trustee under the Bond Documents to exercise remedies under the terms of the Bond Documents, (b) has not been cured or waived, and (c) would reasonably be expected to have a Material Adverse Effect; provided that such Bond Default shall cease to exist if any remedies exercised upon an uncured event of default have been rescinded and annulled under the terms of the Bond Documents. "Bond Documents" means the Installment Purchase Agreement and Installment Sale Agreement between Burnham and the County of San Diego and the Trust Agreement among Burnham, the County of San Diego and the Trustee named therein, each dated as of February 1, 2006, as may be amended. TQWs" shall mean the payment and performance bonds required pursuant to the Development Obligation Agreement. "Budget" shall mean the reasonable and probable total cost of the design, planning, permitting, and construction of the Permanent Facilities, as estimated by the Project Manager, which shall be subject to adjustment in accordance with the terms of the Development Obligation. Agreement. The Budget shall include the Contingency and the Laboratory Allowance, which shall be separately budgeted for and reserved in accordance with the terms of the Development Obligation Agreement. "B Trng" shall mean Burnham Institute for Medical Research, a California nonprofit public benefit corporation. "BurnhamamQus" shall mean approximately fifty (50) acres of land located within Lake Nona South, in the approximate location shown on Exhibit `B" to the Grant Agreement, to be donated by LNLC in accordance with the Grant Agreement and the Gift Agreements. "Business Day" shall mean a day (other than a Saturday or Sunday) on which banks generally are open in Orlando, Florida for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system. "Business Plan" means the business plan of Burnham for its Florida operations, which includes an initial budget and an organizational plan, and may include, among other information, strategic goals and objectives, general research and development information, and status reports. The Business Plan shall cover the first 10 years of Burnham's operations in.Florida. The Business Plan shall include a proposed budget, including a staffing plan, an equipment purchase budget, and proposed operating expenses. The staffing plan shall identify the number of Jobs and estimated salaries to be funded in Florida. A copy of the Business Plan as of the Effective Date of the Grant Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference. The Business Plan may be amended subject to and in accordance with the applicable provisions of the Grant Agreement. "CDD" shall mean the Boggy Creek CDD or any other community development district created by LNLC having jurisdiction over the Permanent Facilities Site, 2. ML1Y EMZ$T1 M?VA 31M0=oruMWW=7$=AM 'We --i "_Ceased Operations" shall mean,. for each Report Period during the Measurement Period, the situation where Burnham's total number of Jobs created. and maintained at the Temporary Facilities or Permanent Facilities as of the end of such Report Period is less than fifty perccnt (50 11/o) of the total number of Jobs, measured in the aggregate, that Burnham was to have created and maintained in Orlando, Florida as of the end of such Report Period as set faith in Burnham's Business Plan (with fiscal years after fiscal year 2016 being the same as for fiscal year 2016). For example, in June 2010, Bumham would be scheduled to have created a total of one hundred twenty -one (121) Jobs. If the number of Jobs at Burnham's Florida location as of such date was sixty (60) or less, Burnham would have Ceased Operations for purposes of this definition. For purposes of the determination of Ceased Operations as of a given point in time, any Job with a wage paid by Burnham that would cause a moving two -year average of the wages for all Jobs created by Burnham as of such time to be less than the Agreed Average Wage may not be counted for purposes of rejecting a claim of Ceased Operations. "Certificate of Omwancy" or "CO" shall mean a permanent certificate of occupancy, certificate of completion or such other• equivalent approval, as applicable, for the Permanent Facilities issued by the City. "Chang_c Order" shall have the meaning set forth in the applicable Construction Contract. 'CW' shall mean City of Orlando, Florida, a municipal corporation organized and existing under the laws of the State of Florida. " losin ' shall mean the date when the parties to the Gift Agreements exchange the instruments and documents described therein. "Closing Aizent" shall wean Broad and Cassel, Bank of America Center, 340 North Orange Avenue, Suite 1400, Orlando, Florida 32801. "99mrnunications Agreements" shall mean any and all agreements, and any and all related documents, such as easements, leases, licenses, or other arrangements of any type, concerning, governing, or relating to the provision of any Communications Services on or to the properties within the Lake Nona DRI or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or otherwise utilizing (e.g., lasing) the such properties, or any portion thereof or any buildings or any portions of buildings thereon. ".Communications Services". shall mean any and all types of services and systems connected with, or related to, the provision of communications (e.g., voice, video or data services), including the following: (i) any and all types of voice services, including local telephone service, long distance telephone service, and voice over IP services; (ii) any and all types of "cable service," as such term is defined by the Federal Communications Commission; (iii) any and all types of video services, including multi- channel video service, broadcast service, internet streaming, video over IP services, and interactive video service; (iv) any and all types of internet services, including high -speed Internet access services, voice over IP services, and video over IP services; (vi) any and all types of broadband services; (vii) any and all types of baseband services; (viii) any and all types of narrowband services; (x) any and all types of telemedicine 3. 0FUTEALE8M6479A J170MM DW di V2=7 SSE AM services or other communications- related services that are utilized by health care providers or health care facilities; and (ix) any and all types of security.monitoring services. "Construction Contract" shall mean any and all construction contract(s) for the construction of the Temporary Facilities or any portion thereof (to be entered into from time to time by and between Burnham and any Contractor), or the Permanent Facilities or any portion thereof (to be entered into by Burnham or the Project .Manager and any Contractor selected by the Project Manager in accordance with the Development Obligation Agreement), as applicable, as such Construction Contract may be amended or replaced from time to time. The term "Construction Contracts" shall also include the "Prime Construction Contract" "Construe, Contact Documents" shall mean the Construction Contracts and all amendments thereto incorporating the final, constructible plans, specifications and all other reasonably necessary documents for the design, planning, permitting and construction of the Permanent Facilities, and shall include the Drawings and Specifications, and all Change Orders executed or issued subsequent to the date of the Construction Contracts. "Consult ant , shall mean any person(s) or entities engaged by the Project Manager or Burnham responsible for services related to the construction of the Temporary Facilities or Permanent Facilities such as those services in connection with environmental analysis, pro- construction, owner's representation, cost estimation, scheduling, expediting, procurement, insurance, value engineering services, inspection, materials testing, and other similar services related to the accounting, documentation, inspection, permitting, management, testing or construction of the Temporary Facilities or the Permanent Facilities. "Consultant Contrast" shall mean the contract(s) to provide services in furtherance of the planning, design, permitting, and construction of the Temporary Facilities (to be entered into by Burnham and the Consultant(s)) or the Permanent Facilities (to be entered into by and between the Project Manager and the Consultant(s) selected by Burnham or the Project Manager in accordance with the Development Obligation Agreement), as such Consultant Contract may be amended or replaced from time to time. "Contingen ' shall mean ten percent (10 1/6) of the estimated total cost of the design, planning, permitting and construction of each of the Temporary Facilities and the Permanent Facilities until such time as the Prime Construction Contract and/or other Stipulated Sum contracts are fully executed, at which time the allocable portion of Contingency applicable to such cost may be reduced as to the executed contracts to four percent (4 %) of the contract price. Contingency funds for the Temporary Facilities may be used to fiord cost ovemmns on the Temporary Facilities, and Contingency funds for the Permanent Facilities may be used as provided in the Development Obligation Agreement. The unused portion of the Contingency for the Temporary Facilities and any other part of the Two Million Dollars ($2,000,000) reserved for Project Cost for the Temporary Facilities shall be retained for use in the design, planning, permitting and construction of the Temporary Facilities provided that the total Project Cost for the Temporary Facilities does not exceed Two Million Dollars ($2,000,000), and when Burnham no longer needs such funds for the Temporary Facilities, any such remaining amounts shall be available to pay Project Cost for the 4. ors IYWA .Mbo6 MA 31 MM DW aHVZWWT 8= MA 1 9 "', Permanent Facilities. The unused` portion of the Contingency for the Permanent Facilities shall be transferred to the Laboratory Allowance as provided in the Development Obligation Agreement. "Contractor" shall mean any contractor(s), duly licensed pursuant to Chapter 489, Florida Statutes, engaged by (1) Burnham for construction and/or managing the construction within the Temporary Facilities pursuant to the Construction Contracts, and (2) Burnham or the Project Manager in accordance with the Development Obligation Agreement, responsible for constructing and/or managing the construction of the Permanent Facilities, or any portion thereof, pursuant to the Construction Contracts. The term "Contractor" shall also include the "Prime Contractor" "Cost Overruns" shall have the meaning set forth in Article VI of the Development Obligation Agreement. unt ' shall mean Orange County, Florida, a charter county and political subdivision of the State of Florida. ` of means a calendar day consisting of a twenty-four (24) hour period beginning and ending at 12:00 midnight Orlando, Florida time, and includes Saturdays, Sundays and all holidays, except that in the event that an obligation to be performed under this Agreement fails due on a Day that is not a Business Day, such obligation shall be deemed due on the next Business Day thereafter. "Design Contract" shall mean the design contract(s) for the design and engineering of the Temporary Facilities or any portion thereof (to be entered into by and between Burnham and any Design Professional(s)) or the Permanent Facilities or any portion thereof (to be entered into by and between Burnham or by the Project Manager and the Design Professional(s) in accordance with the Development Obligation Agreement), as such Design Contract may be amended or replaced from time to time. " pesi Profes §ional" shall mean any design professionals) or engineer(s), including any Architect and Project Engineer, engaged by Burnham for the design of the Temporary Facilities or by Burnham or the Project Manager for the design of the Permanent Facilities pursuant to the terms of the Development Obligation Agreement. "Development Obligation A,ent" shall mean that certain Development Obligation Agreement (Permanent Facilities) by and between LNBC and Bumham, as described in the Grant Agreement and as it may be amended in accordance with its terms, or any subsequent agreement with substantially the same material terms, obligations, and conditions entered into between Burnham and another Project Manager, if approved by the Funding Parties, such approval not to be unreasonably withheld. "Development Order" shall mean the City of Orlando Third Amended and Restated Development Order for the Lake Nona Development of Regional impact dazed June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, of the Public Records of Orange County, Florida, as amended from time to time. 5. 31782C0 DW d4 2/22007 6,92 AM 9B "1Di� ute Resolution PA el" shall mean a standing resolve disputes between the Parties under Part V.A.3.g. of the Grant A g panel of three members designated to Manager and Burnham shall jointly select one member of the Panel. Bement. The Project jointly select the second member of the pane', The �,o m be ,s el selected shall jointly the third member of the Funding Parges shall Marra er L pane], who shall act as the panel chair. So Long as LNBC is the roject g NLC shall not play a role in selecting shall be an appropriately qualified third- the Funding Parties' panelist. Each panelist consultant to an of the P third-party neutral who is not a current employee of or current Y Parties. .Each party shall bear the cost of its respective non - prevailing party in any dispute submitted to the pane! shall bear the cost of the third panelist ane th e e the event a panelist is unable to serve,• his replacement shall be chosen b the selected him, P I st. Y parties that "Drawinrc and SUeci Oat o » shall mean the construction drawings for the Temporary Facilities or the conshuction drawings for the Permanent Faciliti from time to time in accordance with the terms of the anent �' as the same may be chnged Development Obligation Agreement. 'Shall mean a request for disbursement of Project Costs made by Burnham or the Project Manager to the Funds from the Account for supporting documentation, which shall include a copy of all a li Funding Parties, together with receipts certified by Burnham or the Project Marra PP cations for payment, invoices or required in connection with Manager, as well as copies of the do Contract, the Construction Con [meta or respect der the Design Contract, documentation others. pect of a the Prime Construction Such application shall include P ytnents due to Vendors, Consultants or the Development Obligation Agreement ' as applicable, the certification set forth in Atta�ent F to Project Costs for the Temporary °r a comparable fication if made b B and reconciled a ation Facility and shall include, as applicable, a co o umham fox any Contractor, p Y application submitted to B copy of the conscilidated certified - by the applicable Design urnham and/or the Project Manager by any documentation. Documentation submitted with each Draw s'onal Request shall be su ddi were that amounts requested for Payment Y additional required shalt include the appropriate Waivers and lly incurred ed for Project �t to establish COQ• Each Draw Request Each appropriate Retainage under the applicable Construction Contract Draw Request shall reflect the the initiVM " shall mean the initial Draw Request submitted b funding of the Account and entitled Y LNBC the month following reimbursement of Project "Drawn Costs incurred prior to the date thereof, ' 2007," for "Effec 've D" shat[ mean the date set forth in the first paragraph agreement or otherwise specified as the date on which such a P graph of the greelnent becomes effective, applicable "�llne Statute" shall mean Chapter 2006 -55, haws of Florida, codified as S ection 288.1089, Florida Statutes (20067. ` titlem nts" shall have the m Facilities) with re earring set forth in the Gift Agreement with regard to the Sur to the Permanent Facilities Site or in the Gift A plus an d) wplus Land, Agreement (Surplus Land) 6. o►u nRIv FSneee4�a.o / a» z'°oae ohu ay xltrtw� e:a2 w "Bnti l= lts Amendment" shall mean any amendment to the Development Order that would increase and/or modify the entitlements for the entire sake Nona DR.I as described in the Gift Agreements, including, without limitation, changing the proposed uses (e g,, all ow for the development of a hospital); provided, however, that LNLC shall not (and shall cause its affiliates not.to) seek or approve a modification or amendment to the Development Order which would precludd operation of the Permanent Facilities or development of the Burnham Campus P for the ermissible Use. "Environmental Laws" shall mean any federal, state or local environmental, health and/or safety - related law, rule, regulation, requirement, order, ordinance, directive, guideline, permit or permit condition, currently existing and as amended, enacted, issued or adopted in the future. The term Environmental Laws includes, but is not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and similar state or local laws. "Environmental P�t�" shall mean all material permits, authorizations, licenses, approvals, and variances necessary under any Environmental Laws for the continued conduct of operations in the manner then conducted. "FRcrow Amt" as to the Escrow Agreement, shall mean the party designated from time to time as such under the terms of the Grant Agreement and the Escrow Agreement, and as to the Gift Agreements shall mean Broad and Cassel,'Bank of America Center, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32801. 'shall mean that certain Escrow Agreement by and among the Funding Parties, Burnham and the Escrow Agent entered into simultaneously with the Grant Agreement pursuant to which the construction of the Permanent Facilities and the Temporary ah be e funded. porary Facilities s sshall Estimated TM Construction Cost" shall mean the sum presently estimated to be $79,000,000, ' derived by deducting the amounts expended, committed or budgeted for the construction of the Temporary Facilities from the Grant Funds, which is the current estimate to complete the construction of the Permanent Facilities, from which the Contingency (estimated to be $7,900,000) and the Laboratory Allowance will be established in accordance with the terms of the Development Obligation Agreement. shall mean the fixtures and equipment installed or used in connection with the Temporary Facilities and the Permanent Facilities. "=Ac e„ptauce" shall mean the satisfaction of all of the conditions to Final Payment set forth in the Development Obligation Agreement. "Final Completion" shall mean final completion of the Permanent Facilities, as evidenced by a certification by the Project Engineer and the issuance of a Certificate of occupancy by the City. `Tina1 Pa=&Rf' shall have the meaning set forth in the Develo Agreement pment Obligation 7. ORR11R61LE8ik60176A 91767/0028 OHd tit 2191�DD7 8:32 Md 9B ^l "Force Ma'eur v ' shall mean an event causing delay occasioned by a cause or causes beyond the control of the party whose performance is so delayed, including, without limitation; adverse weather conditions; earthquake; acts of God; war; war -like o riots; sabotage; terrorism; operations; civil commotion; sm; governmental (except County or City as to each such party in their respective proprietary capacities) or judicial acti0 macdon, regulation, legislation, or controls (including permitting or approval delays); third material shortages. The parties acknowled a p�Y lawsuits; moratoria; labor disturbances; or deploy reasonable resources to meet its obligations under any a Party's incompetence or failure to constitute a Force Majeure Event as to such party, yeement shall not be deemed to "Fundine Pasty" shall mean each of the County, City and LNLC. Collectively, these entities may be termed the "Funding Parties," "P._i_g parties A ent" shall mean the agreement by and among County, City and LNLC setting forth "the rights and obligations of the parties with respect to the Permanent Faciliti Site arising from or in connection with the Grant Agreement es "-WP" shall mean accounting principles generally accepted in the United States of America, applied on a consistent basis, "Chft Aveement (Permanent Fac. itic�cl" shall mean the gift agreement entered into by and among LNLC, County and Burnham, with limited joinder by LNPH, for the donation and transfer of the Permanent Facilities Site; form of which is attached to the Grant Agreement as Exhibit "E." "G ft Ai eernent (Surol� us i,and) Shall mean the ft agreement between LNLC and Burnham, with limited joinder by LNPH, for the and transfer the Burnham Campus less the Permanent Facilities Agreement as Exhibit "D.11 Site', the form of which is attached to the Grant Q A►— en&' shall mean -the Gift Agreement (Permanent Facilities) and the Gift Agreement (Surplus Land). "Gov ental Autho ' ' of shall mean any board, bureau, commission, department or body any municipal, county, state or federal governmental or quasi - governmental unit, or any subdivision thereot; having or acquiring jurisdiction over the Temporary Facilities, the Permanent Facilities or the Burnham Campus or any portion thereof or the management, operation, use or improvement thereof. ` oyernmental .i — ..`censer" shall mean all certificates, auth the appropriate federal, state, local or foreign regulatory authorities. orizations and permits issued by shall mean that certain grant agreement by and among the F�mdmg Parties and Burnham, including all exhibits, amendments and supplements thereto, as it may be wed in accordance with its terms. 0t7expo:s owcy �too� aaz�ut 8. 90 "Grant >}irnds" shall mean the amount of Eighty-One Million Dollars ($81,000,000) in cash provided to Burnham by the Funding Parties to be used for Project Cost in accordance with the Grant Agreement. 49 oss Floor Area" shall have the meaning provided in the standards of the American Institute of Architects, "Ground Lease" shall mean the ground lease entered into by and between County and Burnham for the lease of the Permanent. Facilities Site (for use in accordance with the Permissible Use restriction, as defined therein), as it may be amended in accordance with its terms. "Hazardous Substances" shalt mean any hazardous or toxic substances, materials or wastes, Pollutants or contaminants regulated by Environmental Laws, as now or may hereinafter be amended, including, but not limited to, petroleum products, biomedical waste, radioactive materials, flammable or corrosive substances, explosives, polychlorinated biphenyls and asbestos. "rmpact 'shall mean transportation impact fees or other similar impact fees assessed by any Governmental Authority in connection with the development of the Burnham Campus, "IMtmh-anae" shall mean the interchange constructed .at the intersection of Lake Nona Boulevard and State Road 417 a/k/a the Greeneway. "Job Commitment" shall'have the meaning set forth in the Ground Lease. "kW' shall mean full -time jobs and full -time equivalent jobs (based on a 35 hour work week), and Other Personnel, as defined herein; provided, no nonemployee person providing planning, design, permitting, construction or other similar services related to the Temporary Facilities or the Permanent Facilities shall qualify as a Job hereunder. In tabulating hours worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be included, "Other Personnel" shall mean (i) employees of contractors, joint venture partners or licensees operating under agreement with Burnham that are performing functions or services for Burnham and/or its affiliates in Florida in Burnham's facility in Orlando, Florida and other Central Florida locations consistent with the Permissible Use, and (b) personnel engaged directly by Burnham as independent contractors to whom Burnham issues an IRS Form 1099 (only wages paid by Burnham to such Other Personnel shall be included in wages for purposes of calculation of the moving two -year average under Part VI.E. of the Grant Agreement). In addition, to be counted towards Jobs, Other Personnel shall: (a) perform ongoing services or functions for Burnham in the Temporary Facilities or Permanent Facilities that might otherwise be performed by employees, but which Burnham has elected to procure through the services of Other Personnel due to the specialized nature of the expertise required or other business purpose, and/or perform their work for Burnham substantially in time Temporary Facilities or Permanent Facilities (other than customary business travel); and (b) not perform services or functions limited to terms of less than six months; and 0a 0ALIM UMTA 79., a,?stVM 0Waq M12W sat AM oc (c) not constitute more than 25% of the total Jobs. Jobs shall include binding offers accepted and committed to by the prospective employee or Other Personnel even though the employee's or Other Personnel's commencement date may be deferred by up to one (1) year from the date of employee's or Other Personnel's acceptance of the offer. This definition excludes any position attributable to Burnham by virtue of a merger or acquisition of an existing business or operation in Orange County, Florida, For clarification, Other Personnel and Burnham employees shall only be included in Jobs on a full -time equivalent basis based on a 35 hour work week. For example, if a Burnham full -time employee spends 50% of his time in California and 50% of his time in Orlando, Florida in a given year, that employee would count as 0.50 of a Job. If a Burnham consultant that constitutes an Other Personnel spends 12 hours per week performing work for Burnham in Orlando, Florida in a given year, that consultant would count as 0.34 of a Job. "Laboratory Allowance" shall mean the sum, which shall initially be up to ten percent (10 %) of the Available Funds existing as of the conclusion of the Preliminary Design Phase (as defined under the Development Obligation Agreement), which sum shall be determined by Burnham in its reasonable discretion during the Preliminary Design Phase and reserved under and subject to the limitations of the Development Obligation Agreement and shall be available to Burnham pursuant to the terms of the Grant Agreement and the Development Obligation Agreement for (a) the completion/installation or reconfiguration of laboratory facilities within the Permanent Facilities, which may include furniture, fixtures or equipment that were initially utilized in connection with the Temporary Facilities and can be relocated to the Permanent Facilities, and (b) after the laboratory facilities within the Permanent Facilities are at 100% completion based upon capacity for the 303 Jobs contemplated under the Business Plan and required under the Giant Agreement, for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under' the Gift Agreement (Permanent Facilities), and after payment of such CDD capital assessments for the Permanent Facilities Site, for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). "Lake Nona DRP' or "Lake Nona Development" shall mean property that is subject to the Development of Regional Impact approved by City of Orlando and the State of Florida known as the "Lake Nona Development of Regional Impact" pursuant to the terms of Development Order, or the "Lake Nona Planned Development" pursuant to the terms of the PD, within which the Burnham Campus shall be located. "%eke Nona South" shall mean that portion of the Lake Nona Development lying south of the Greeneway. "LaW Reggiremenis" shall mean all applicable laws, statutes, ordinances, rules, regulations, orders, judgments, decisions, decrees, standards, and requirements. '!Mg' shall mean Lake Nona Boggy Creek, LLC, a Florida limited liability company. 10. 0K1VW U%reWM,4 31742WU DHJay=Zv=76=AM " N C" shall mean Lake Nona Land Company, LLC, a Florida limited liability company. "LNPH," shall mean Lake Nona Property Holdings, LLC, a Florida limited liability company- Was ! Also 'ation" shall mean the master property owners' association created pursuant to the Master Declaration. "Maser Declaration" shall mean the master declaration of covenants, conditions, restrictions and easements for all or a portion of the properties within Lake Nona South lying generally west of the interchange as determined by LNLC. Wdenal dverse Effect" shall mean (a) as of the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or Otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to substantially impair Burnham's ability to conduct its core operations or to fulfill its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement, and (b) after the Effective Date of the Grant Agreement, a material adverse change in or effect on the business, condition (financial or otherwise), assets, affairs or prospects of Burnham, whether or not in the ordinary course of operations, which change would reasonably be expected to prevent Burnham from fulfilling its material obligations, as and when required, under the Grant Agreement, the Ground Lease, or the Development Obligation Agreement. "Measurement Period" shall mean the period during which the number of Jobs and the moving two -year average of the wages paid by Burnham for all Jobs created by Burnham are measured, which period shall commence July 1, 2009 and shall end upon the last day of the Term of the Ground Lease. The Measurement Period may be extended as provided in Part XII of the Grant Agreement. "M morandum of Funding Parties A-reement" shall mean the memorandum of the Funding Parties Agreement to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida. 'Memorandum of Ground Lease" shall mean the memorandum of the Ground Lease to be executed at the time of Closing under the Gift Agreement (Permanent Facilities) and recorded in the Public Records of Orange County, Florida promptly after the Ground Lease is executed. "Minimum R- MAromemk" shall mean the minimum programmatic requirements for the Permanent Facilities, set forth on Exhibit 1B." " Hon" shall mean the option to purchase the Permanent Facilities Site granted by County to Burnham pursuant to the terms of the Ground Lease. "OTTED Agreement" shall mean the Innovation Incentive Funding Agreement between the State of Florida's Office of Tourism, Trade and Economic Development and Burnham which OMIVWALESTVM479A 31762WM DHJ dt 7IP9=r eat Am 9B�r controls the obligations of Burnham and OTTED with regard to incentive grants awarded under the Enabling Statute, as it may be amended in accordance with its terms; provided that no such amendment shall affect any of the agreements with the Funding Parties unless the Funding Parties consent thereto. "Parties" shall mean the parties to a particular agreement. W' shall mean that certain Ordinance Establishing the Zoning Classification as PD, Planned Development, and C, Conservation; Districts on the Lake Nona Development Regional Impact as Adopted by City Council dated October 25, 2004 and November 11, 2004 at Official Records Book 7699, Page 3056, of the Public Records of Orange County, Florida, as amended by that certain amendment dated July 25, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3662, of the Public Records of Orange County, Florida, as amended from time to time. "PD Amendment" shall mean any amendment to the PD submitted to the City for review and approval, whether before or after the date hereof, provided, however, that LNLC shall not (and shall cause its affiliates not to) seek or approve of a PD Amendment which would preclude operation of the Permanent Facilities or development of the Burnham Campus for the Permissible Use. "Permanent Facilities" shall mean (i) the approximately one bundred seventy -five thousand (175,000) square feet of Gross Floor Area in one or more buildings on the Permanent Facilities Site for the use and benefit of Burnham employees and guests in accordance with the Permissible Use, which is to be constructed pursuant to the, Grant Agreement and the Development Obligation Agreement; provided, however that Burnham may reduce the Gross Floor Area of the Permanent Facilities by an amount not to exceed ten percent (10%) without the unanimous approval of the Funding Parties; and (ii) all adjacent surface and subsurface infrastructure and utilities and all related on -site improvements, including parking, driveways, landscaping, hardscaping, signage and irrigation, but specifically excluding surface water runoff/drainageJretention/detendon facilities. "Permanent Facilities Completion Date" shall mean the date that is thirty -six (36) months from the Effective Date of the Grant Agreement or such other date as may be agreed to in writing by the Funding Parties and Burnham. "Permanent Facilities Site" shall mean the approximately 12 acre parcel of real property within the Burnham Campus upon which the Permanent Facilities shall be located, as shown on Exhibit "C" to the Grant Agreement. "Permissible Use" shall mean, subject to completion of the Permanent Facilities, uses permitted on the Burnham Campus, which shall be limited to the following and shall be subject to compliance with all applicable laws: (a) medical, life science and clinical research and development, (b) light manufacturing in the life sciences or medical field, including diagnostics, devices, pharmaceuticals and reagents, (c) undergraduate, graduate and post- graduate education, including classrooms and lecture halls, (d) research facilities related to a medical hospital, (e) 12. 0W1vaMear W?9.4 r \ e 3 9B ancillary related research - oriented healthcare and life science uses, and administrative uses related to the foregoing, and (f) support services for the foregoing which may include, but is not limited to, a cafeteria/restaurant, child day care center and fitness facility for use by Burnham's personnel and employees and Bumham's sublessees' personnel and employees. "Permits" shall mean all building, development and environmental permits necessary to the proper execution and completion of the Work which are legally required, including, without limitation, SPMP and site plan submissions, general building permits, street access permits, easements and all other permits, licenses, inspections, fees and the like required to complete the Permanent Facilities, unless specifically stated otherwise in the Construction Contract Documents, sewer (sanitary and storm.), water, electrical power, telephone, data, cable television and gas tap fees regarding utility connections and extensions, utility meter installation and hook -up charges, and other charges assessed by the local entities having jurisdiction, permits for elevator, mechanical, plumbing, electrical and all other trade work; and all partial and final certificates of occupancy and other permits necessary to permit the lawful occupancy of the Permanent Facilities by Burnham. "Permitted Bxcgoons" shall have the meaning given such term in the Gift Agreement (Permanent Facilities) or Gift Agreement (Surplus Land), as applicable. "Person" shall mean an individual, estate, trust, partnership, limited liability company, corporation, Governmental Authority or other legal entity. 'Td merry Operations" shall mean the location in the State of Florida at which no less than eighty percent (80 %) of Burnham's Florida employees are employed. "Prune Construction Contract" shall mean a Construction Contract with the Prince Contractor that is, in the case of the Permanent Facilities, consistent with the terms and conditions of the Development Obligation Agreement. "Edme Contractof' shall mean either (i) a construction manager operating "at risk" for the completion of the Work or (ii) a general contractor operating with a Stipulated Sum contract for the completion of the Work; either of which, in the case of the Permanent Facilities, will be engaged by the Project Manager to be responsible for constructing and/or managing the construction of the Permanent Facilities pursuant to the.Prime Construction Contract The Prime Contractor for the Permanent Facilities shall oversee and be responsible for all Contractors performing Work on the Permanent Facilities Site, except, at the option of the Project Manager, the Contractor(s) responsible for that portion of the Work related to earthwork, stormwater ponds and master drainage systems, master utilities, landscape and hardscape and equipment furnished by the Project Manager. ' e Rate" shall mean the then- existing prime rats set forth in the Wall Street Journal or comparable paper of national circulation. "Project Cost" shall mean all actual costs resulting from (a) amounts incurred with respect to the Design Professionals pursuant to the Design Contracts; (b) amounts incurred with respect to the Contractors pursuant to the Construction Contracts; (c) amounts incurred with respect to Vendors and Consultants pursuant to their contracts; (d) amounts incurred with respect to Architects pursuant 13. ORLIMM eats M79A $170MMS r*U*J 2PZd2W 6:32 AM 9 B.Q to their contracts; (e) fees and expenses for construction permits and approvals, Impact Fees, connection and capacity charges and the like; and (f) other costs or expenses (including attorneys' fees and expenses incurred after the Effective Date of the Grant Agreement), except for such fees and expenses as may be incurred by Burnham in any claim, lawsuit or proceeding against the Funding Parties, or any proceeding asserting a violation of any Federal, State or Local statue, law, code, ordinance, rule or regulation, or any proceeding relating to any fines or penalties assessed against Burnham in connection with the construction of the Permanent Facilities, or any fees attributable to any lobbying efforts), provided such costs are directly attributable to materials and services necessary for planning, design, permitting, and construction of the Temporary Facilities or the Permanent Facilities or F&E installed within the Temporary Facilities or the Permanent Facilities. In addition, after Final Completion and after the laboratory facilities within the Permanent Facilities are at 10019 completion based upon capacity for the 303 Jobs contemplated under the Business Plan and required under the Grant Agreement, if there are Available Funds remaining in the Account, "Project Cost" shall also mean actual costs for payment of CDD capital assessments for the Permanent Facilities Site, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Permanent Facilities), and if there are Available Funds remaining in the Account after payment of such CDD capital assessments for the Permanent Facilities Site, actual costs for payment of CDD capital assessments for the Surplus Land, including repayment of all or any portion of any Loan therefor under the Gift Agreement (Surplus Land). Notwithstanding the foregoing, "Project Cost" shall not include costs or expenses for items or services that are not necessary for the planning, design, construction or permitting of the Temporary Facilities or Permanent Facilities or for payment of CDD capital assessments in. accordance with the irnmediately preceding sentence, including without limitation entertainment, alcohol, travel or per diem beyond customary standards, and luxury accommodations. Project Costs shall be reimbursable by Draw Requests. "Project End" shall mean the engineer retained by Burnham or by the Project Manager from time to time, in the case of the Permanent Facilities, in accordance with the Development Obligation Agreement, for the performance of the Work. "Project Manager" shall mean LNBC or any other project manager retained by Burnham to manage the design and construction of the Permanent Facilities pursuant to the Development Obligation Agreement. "Pr vi er' shall mean any Person providing Communications Services on or to the Burnham Campus or any portion thereof or any buildings or portions of buildings thereon, or to any persons or parties residing or utilizing (e.g., leasing) the any of the properties within the Lake Nona DRI, or any portion thereof or any buildings or portions of buildings thereon, which Person may be, or may subsequently become, affiliated with LNLC. "Ppnchlistt L ems" shall mean those minor items which are at variance with the Construction Contract Documents and the Drawings and Specifications as of the Substantial Completion Date and which for achieving full completion in the aggregate will not exceed the Punchlist Period except as otherwise specifically provided in the Development Obligation Agreement, and which do not materially interfere with the use and occupancy of any part of the Permanent Facilities for its intended use. Prior to commencement of the Punchlist Period, the Architect and the Project 14. 0KiV AUW T%W79.4 • r r Manager shall prepare a written description of the form and scope of all Punchlist Items and a schedule setting forth the, estimated time and value for completion of the Punchlist Items. "Punchlist Period" shall mean the ,period of time from the day after the Substantial Completion Date for each improvement to the date on which all Punchlist Items are resolved to the reasonable' satisfaction of the project Manager and Burnham, which period shall not exceed sixty (60) days, except that the Project Manager shall not be required to cause the completion within such time any items that are not reasonably capable of such completion (but shall be required diligently to use corm mvially reasonable efforts to cause the applicable Contractor or Consultant to commence and continue with such work as necessary to finish such items as soon as reasonably practicable), so long as the fad of the incompletion of such items does not materially interfere with the use and occupancy of any material pail of the Permanent Facilities for its intended use. During the Punchlist Period, Burnham agrees to grant the Project Manager, the Contractors and the Consultants reasonable access to the Permanent Facilities Site in order to accomplish completion of the Punchlist Items and perform any other services then required under the Development Obligation Agreement. "Report Period' means the applicable reporting period as described on the schedule attached hereto as Exhibit "C.'11 "Research Park" or "Research Park at Lake Nona" shall mean the research park to be developed by LNLC and located upon up to one hundred fifty (150) acres, inclusive of the Burnham Canopus; provided, the ultimate size of and uses within the Research Park (except for the uses on the Burnham Campus which shall be the Permissible Uses) will be determined by LNLC based upon market demand. " Retainaae" shall be applicable to all Construction Contracts and shall mean (i) ten percent (10%) of the total amount of any Construction Contract until such time as Fifty Percent (50 %) of the Work under said Construction Contract is complete; (ii) five percent (5%) of the total amount of any Construction Contract after fifty percent (50 %) of the Work is complete until Substantial Completion of the Work; and (iii) two percent (2 %) of the total amount of any Construction Contract after the Work has achieved Substantial Completion; provided however, there shall be no retainage for amounts due to Vendors. Upon final completion of the Temporary Facilities or Final Completion, any remaining Retainage shall be distributed as provided in the Construction Contract and the Escrow Agreement. "Scope of Work" shall mean the construction of the Permanent Facilities: (i) substantially in accordance with the Construction Contract Documents, and (ii) consistent with the approved SPMP. "Security Agr meat" shall mean Exhibit "5" to the OTTED Agreement. "Space Pmgrm" shall have the meaning given such term in the Development Obligation Agreement. "Special Conditions" shall mean the conditions set forth on Attachment B to the Development Obligation Agreement. 15. ORLrP LESrsw7o.s 311621 =OWC"YfJ9fm T&=AN "Spend Down Schodules" shall mean the schedules for the timing of the use of the Grant Funds as described in the Grant Agreement, which schedules will be prepared by Burnham, with assistance from the Project Manager in accordance with the terms of the Development Obligation Agreement in the ease of the Permanent Facilities. "SPMP" shall anean the final, non - appealable Specific Parcel Master Plan for the development of any portion of the Burnham Campus, as approved by the City. "Sti i ted Sum" shall mean a stipulated or fixed price, or guaranteed maximum price, for Project Costs under the Construction Contracts or purchase orders. The Stipulated Sum includes all amounts in Draw Zero for the Permanent Facilities. "Mubrontractor" shall mean any subcontractor in privity with any Contractor or any other Subcontractor, at any tier. "Subleasing_ Restriction" shall mean that subleasing, and for -profit activities in the Permanent Facilities must be consistent with the Permissible Use and have the prior written approval of the Funding Parties, which consent shall not be unreasonably withheld, and, commencing on the fifth (5u') anniversary of the issuance of a Certificate of Occupancy for the Permanent Facilities, must not comprise more than twenty-five percent (25 %) of the use within the Permanent Facilities based upon the total square footage of the Permanent Facilities as of the date of measurement. The foregoing limitation shall not begin until the fifth (50) anniversary of the issuance of a Certificate of Occupancy for the Permanent Facilities in an effort to allow Burnham the time and opportunity to staff and occupy the Permanent Facilities and shall only apply during the term of the Ground Lease;, provided, the. foregoing shall not serve in any way to limit or terminate the obligation to comply with the Permissible Use which is intended to and shall run with title to the Permanent Facilities Site. "Substanti Completion" shall mean the level of completion of an improvement wherein such improvement has no material defects or deviations from the approved plans therefor and can be operated for its intended use as certified by the Project Engineer, and such improvement has received either a permanent or temporary certificate of occupancy such that Burnham may take possession of and occupy the improvement for its intended use or a certificate of completion or its equivalent from the appropriate governmental entity, as applicable. "Surplus Land' shall mean the Burnham Campus, other than the Permanent Facilities Site. `Target Constructions Cost" shall mean the Grant Funds (altar deducting from the Grant Funds all Project Costs expended, committed or budgeted for the Temporary Facilities) less the Contingency and less the Laboratory Allowance as determined at the conclusion of the Preliminary Design Phase in accordance with the Development Obligation Agreement; provided, such amount may be adjusted following the Preliminary Design Phase in accordance with the terms of the Development Obligation Agreement. '7emt*rary Facilities" means the temporary facilities for Burnham's Florida operations to be constricted pursuant to a lease and affiliated agreements between Burnham and lessor 16. OMIVWAl1MT OW79A 31762VW ONJ 0V 9Jxt/10W 6= AM Independent Blood and. Tissue Services of Florida, Inc. at 8669 Commodity Circle, Orlando, Florida 32819. (approximately 14,000 square feet) and warehouse space at 8663 Commodity Circle, Orlando, Florida 32819 (approximately 500*square feet) pursuant to the terms and conditions of the Grant Agreement, or such other site in Orange County, Florida as reasonably agreed by Burnham and the Funding Parties. "Tier 1 Funds" shall mean the initial tier of the Grant Funds in the total amount of $70,000,000, to be fiuided pursuant to the terms of the Grant Agreement, of which $7,600,000 shall be contributed by LNLC (10.9 0/6), $29,700,000 shall be contributed by City (42.4 %) and $32,700,000 shall be contributed by County (46.7 %). "Tier 2 Funds" shall mean the second tier of the Grant Funds in the total amount of $6,000,000 to be funded pursuant to the terms of the Grant Agreement, of which $3,000,000 shall be contributed by City (50 %) and $3,000,000 shall be contributed by County (50 %). "Tier 3 Funds" shall mean the third and final tier of the Grant Funds to be funded pursuant to the terms of the Grant Agreement, of which $5,000,000 shall be contributed by County (100 %). ` importation Impact Fee Credits" shall mean any transportation impact fee credits that may be generated from *or in connection with the development of the Burnham Campus or the Lake Nona DRI. `"Trips" shall mean the average daily trips in accordance with the Development Order then in effect, as the same may be amended from. time to time. "Vendor' shall mean any vendor of construction materials, including but not limited to fixtures and equipment, with which. the Project Manager, Burnham or any Contractor has a direct contract for materials, fixtures or equipment to be used in the construction of the Temporary Facilities or Permanent Facilities. ' Vaiverss and Releases" shall mean the following items from the Vendors, Consultants, Design Professionals and Contractors for which payment is requested, as the case may be: (a) fully executed partial waivers and releases of claims in the amount of the immediately prior payment made by the Funding Parties (through the Escrow Agent) to Burnham and (b) conditional waivers for the payment amounts contained in the current Draw Request, in each case, for the Vendors, Consultants, Design Professional or Contractor, excepting any claims that may remain in dispute. "ley Period" shall mean the period of time during which the Contractor's warranty is in effect under the Construction Contract Documents. "Work" shall mean all obligations, duties, and responsibilities assigned to, or undertaken by, a Contractor pursuant to the Construction Contracts, required to complete construction within the Temporary Facilities or to complete construction of the Permanent Facilities in accordance with the Constriction Contract Documents. 17. oa�,w�i�sneeac>oa 3170=n MU mr pas=7 SM an 9B Burnham Institute for Medical Research BUSINESS PLAN FOR EXPANSION to ORLANDO FLORIDA October 2006 1 EXECUTIVE SUMMARY 1.1 Overview i 2 MISSION OF BURNHAM INSTITUTE FOR MEDICAL RESEARCH 2.1 Background on Burnham Institute for Medical Research 2.2 Research Centers 3 THE STATE OF FLORIDA 4 ACTION PLAN 4.1 Negotiate enabling agreements with the State of Florida 4.2 Negotiate an agreement with the State Board of Administration 4.3 Negotiate enabling agreements with all Other Interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,000 square root state- of-the -art facility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for S15MM in local philanthropic support for BIMR e) commitment for $10MM in funding from the University of Florida f) commitment for $27MM in funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORR 4.4 Develop key infrastructure for Burnham Florida 4.5 Identify key senior appointments 4.6 Implement it Collaboration Program 4.7 Implement a Graduate Program 5 ORGANIZATIONAL PLAN 5.1 Scientific Staff 5.2 Administrative Staff 2 4 4 4 4 5 6 6 6 6 7 7 7 7 7 7 7 7 7 7 7 7 8 8 8 9 98 -� 6 INFRASTRUCTURE DEVELOPMENT 10 6.1 Facilities 10 6.2 Capital Equipment 10 6.3 Construction of Permanent Campus 10 7 INITIAL BUDGET 12 7.1 Statement of Activities (In $000's) 12 • The total amount contributed by State will be $155,272,000 any variation in the budget summaries is the result of rounding L2 7.2 Balance Sheet On 000's) 13 7.3 Summary of Cash Flows On 0001x) 14 7.4 Revenue Assumptions 15 7.5 Expense Assumptions 16 7.6 Major Capital Expenditures - Stub Period and Year 1 17 7.7 Use of Florida Suppliers 17 8 8.1 8.2 RECRUITING Recruitment Process Hiring Schedule 17 17 18 • i i t 9E 1 EXECUTIVE SUMMARY 1.1 Overview The Board of Trustees and Executive Management team at Burnham Institute for Medical Research ( "BIMR ") view the expansion of our research efforts to a Florida campus as a unique opportunity for the State of Florida ("Florida ") and BIMR. The Orlando, Florida site will be a fully Integrated part of BIMR both operationally and culturally. We will take this opportunity, and the resources that it provides, to recruit world -class scientists to work with us In the fields of cancer, Infectious and inflammatory disease and neurosciences and aging. In addition this expansion affords us the opportunity to launch an additional research program In the area of diabetes and obesity. We also plan to develop three technology cores that will enable the transtdon of our scientific discoveries Into the clinic. Specifically, the Orlando campus will have cores in pharmacology, In vitro and in vivo toxicology, chemistry, library screening and in vivo Imaging, Our vision Is that a biooestal Burnham Institute for Medical Research will be Internationally recognized and be to Orlando what University or Califomta at San Diego was to La Jolla, the catalyst for the creation of a vibrant biotechnology industry. 2 MISSION OF BURNHAM INSTITUTE for MEDICAL RESEARCH Our mission of BIMR Is to conduct world -class collaborative, research to cure human disease, improve quality of life, and thus create a legacy for our employees, partners, donors and community. We conduct basic biomedical research and our philosophy is grounded in the recognition that most breakthroughs In fighting human disease come from basic scientific investigations. Moreover, our emphasis on basic research, as opposed to clinically applied research, means that our discoveries often reveal fundamental concepts and principles of cell biology that have broad relevance in a number of diseases, The Institute is a 501(c)3 non -profit corporation, formerly the La Jolla Caner Research Foundation, with an annual budget of approximately $90 million, Of the 725+ employees at the Institute, more than 500 are scientists, and over 200 of those are Postdoctoral Fellows. Currently BIMR Institute has 71 faculty members. The outstanding quality of our faculty allows them to very successfully compete for research funding from various government agencies, particularly the National Institutes of Health (NIH). Federal grants make up about 80% of our operating budget. Other important sources of funding include private foundations, revenue from technology licensing, and philanthropy. Our research activities take place In nine buildings geographically located In the heart of San Diego's biomedical research community on Torrey Pines Research Mesa. Within a two-4nrie radius of our campus, our scientists enjoy collegial access to neighboring institutes, including Salk Institute for Biological Studies, The Scripps Research institute, University of California at San Diego, and San Diego's thriving biotechnology community, the world's fastest growing biotechnology community. 2.1 Background on Burnham Institute for Medical Research Bumham Institute for Medical Research celebrates its 30'h anniversary this year. Founded in La Jolla, California, as a non -profit medical research institute focused on cancer research, BIMR has grown to a 725 plus person effort, with an annual operating budget of approximately $90 million. Our mission at BIMR Is to reveal the fundamental molecular mechanisms of disease, and to use that knowledge to devise the prototype therapies of tomorrow, This mission is undertaken through a highly collaborative style of research that merges the talents of biologists with chemists, biophyskdsts, engineers, and computer scientists, creating a symphony of scientific synergy that emphasizes team -based approaches for tackling the great unmet medical challenges of today. Our mantra is "From Research, the Power to Cure." U .. rALINJ BIMR consistently ranks among the top 20 organizations for the impact of our research publIcations, and Is among the top 0.04% organizations worldwide for citations received per publication, according to the institute for SclentiRc Information. Though journal publications are our chief product, during our 30 year history, BIMR scientists have also contributed directly or Indirectly at least 5 approved therapies and several dlagnostic tests that are currently in use, saving and extending Ives; plus, another 9 innovative therapies are currently In clinical testing at over 50 medical centers around the works. Burnham Institute for Medical Research is an organization on the rise. Due to the extremely high quality of our scientific staff and our highly collaborative culture, BIMR has enjoyed 5 consecutive years of double -digit growth in Its NIH grant base, at a time when NIH budgets have been flat or in decline. BIMR currently ranks 71' In the nation among ail private research Institutes in terms of NIH funding. NIH grants account typically for 80% of our annual operating budget. According to the Center for Advanced Research, BIMR is the most efficient private research Institution In the nation, covering 90 -93% of its operating costs through.compefitive grants awarded to its scientists. 2.2 Research Centers Research at BIMR is organized Into 3 dissase-focused research centers, bolstered by 3 technology centers. The Cancer Research Center constitutes approximately half the effort. BIMR has been a member of the National Cancer Institute ('NCr) designed Cancer Centers program for 27 years, In the category of 'basic science' cancer centers. The Cancer Research Center has also been designed by the NCI through special grants we receive as: (1) one of eight centers for cancer drug discovery; (2) one of four centers for cancer bloinformatlos, (3) one of six centers for.deflning the molecular signatures of cancer for generating more powerful. diagnostic test, in partnership with neighboring organizations including Sidney Kimmel Cancer Center, and (4) one of four centers for cancer bionanotechnology, also in partnership with neighboring organizations. Among the accompllshments to come from Burnham sdentists for cancer are:. (1) the laboratory technique known as the ELISA, which forms the basis for the PSA (Prostate Specific Antigen) test and many other clinical laboratory tests: (2) the enabling technology for the world's first biotech drug for cancer, Epogen7m, used to support blood cell production in patient undergoing cancer therapy; (3) one of the first vitamin -based drugs (Targredn n for cancer, that taps Into natural biopathways for fighting cancer, and (4) the world's first DNA -based drug for cancer to successfully complete final Phase iII clinical trials (decision on approval due this summer from FDA). The Dale is Webb Center for Neuroscience & Aging Research focuses on degenerative diseases associated with aging, particularly neurodegeneration (Alzheimer's; Parkinson's; ALS), stroke, heart disease, and diabetes. Research in this Center is aimed at either protecting cells from age - associated loss, or replacing lost cells through stem cell technologies. Cell protection strategies m emerge from the laboratories of Burnham scientists include: (1) Memantine (Namenda'"), a cytoprotective drug approved for Alzheimer's disease and in testing for glaucoma and stroke (2) two drugs used to prevent stroke and heart attack by inhibiting blot dot formation; and (3) a nerve repair therapy (Neuroguard`r' anticipated to gain FDA - approval this year. Through special grants awarded by the NIH, BIMR has been designated as one of four centers for devising new therapies for cardiovascular disease using bionanotechnology. With regards to toil replacement, BIMR was an early entrant into the field of stem cells and regenerative medicine, launching a research division dedicated to this exciting but young field of medical Inquiry 9 years ago. Today, the stem cell effort at BIMR constitutes the activities of nearly 103 scientists, perhaps the largest In the nation. Through special grants awarded by NIH, BIMR has been designated as one of six national exploratory centers for human embryonic stem cell research, and one of five centers for training the nation's scientists how to work with human embryonic stem cell research. To establish a safe -haven for performing research on all types of stem cells, we established In 2002 the Stem Cell Research tenter, which Includes the complete Infrastructure for deriving new embryonic stem cog tines and making them available to the general research community for regenerative medicine research. ` a "oombl'1 The infectious & inflammatory Disease Center studies Infectious agents and the immune system's mechanisms for defense. Research In this new Center at BIMR focuses both on devising new treatments for Incurable infectious diseases, where the Immune response fails to eradicate pathogens; and on investigations of autoimmune diseases (e.g, Rheumatoid Arthritis; Inflammatory Bowel Diseases; Lupus; Multiple Sclerosis) where the immune response Is excessive and turns on the patient's own tissues. Discoveries to come from this Center include (a) elucidation of the genetic basis for familial susoeptibility to Juvenile diabetes and rheumatoid arthritis, finding a genetic difference in an immunoregulatory gene and (b) determination of the 313- structure of the Anthrax Toxin and generation of the world's most potent chemical inhibitors of Anthrax Toxin using NMR -based drug design, providing a rapid means of neutralizing this agent of biotenorism. BIMR's technology centers include: (1) the Center for Chemlcal Genornics, one of ten NIH- funded national centers for establishing high- throughput robotic systems for screening large collections of chemicals and enabling rapid drug discovery; (2) the Center for Proteolytic Pathways, one of four NIH - funded national research resources devoted to developing Innovative proteomk:s technologies for discovering new biopathways and new targets for diagnostics and drug discovery; and (3) the Center for CompMUonal Modeling, one of two national centers funded by NIH for devising innovative computer algorithms for predicting the 34mensional structures of proteins and generating computational tools for molecular modeling, thus providing Insights Into the functions of the genome and laying a foundation for drug discovery, 3 The State of Florida In an effort to promote, stimulate, develop and advance business prosperity and economic welfare of Florida and its residents, the Florida Legislature appropilated $200 million of Innovation Funds (the "State Funding ") to support the establishment of a biotechnology industry In Florida. The institute has been granted $155,272,000 of the Innovation fund to be applied towards the operational cost needed to support the Orlando site until It becomes self sufficient In its tenth year of operation. The remainder of the required operational funds have been provided by a consortium consisting of Orange County, the City of Orlando, Lake Nona Land Company LLC, University of Florida, University of Central Florida, Florida Hospital, and Orlando Regional Hospital,,; 4 Action Plan The following key steps will constitute a plan of action for the establishment of Burnham Florida: 4.1 Negotiate enabling agreements with the State of Florida An agreement to provide $155,272,000 million In operational funds that we will require over the first 10 years and which I details the performance based milestones that BIMR will need to meet to access these operational funds has been negotiated with the State of Florida. 4.2 Negotiate an agreement with the State Board of Administration An agreement that provides the mechanism, structure, and strategy for investment of the State funds and their release to BIMR has been negotiated and executed with the State Board of Administration (SBA). 9B 4.3 Negotiate enabling agreements with all Other interested Parties The agreements necessary to fund the following; a) the build out of a temporary facility at the Florida Blood Center, and b) construction of a 175,00.0 square foot state -of- the -art facility, and c) conveyance of 50 acres of land at Lake Nona d) commitment for $15MM In local philanthropic support for BUR e) commitment for $10MM in funding from the University of Florida f) commitment for $27MM in funding from the University of Central Florida g) access to human tissue samples generated by Florida Hospital and ORH have jointly and severally been negotiated and executed with Orange County, City of Orlando and Lake Nona Land Company LLC, and the universities and hospitals listed above. 4.4 Develop key infrastructure for Burnham Florida This will occur in two phases: Phase I will be to build out, approximately 14,000 square feet of temporary lab apace In the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been execute0.: We would hope to take up occupancy in this space in April of 2007. Phase 11 will be a completion of the permanent 175,000 square foot facility at the Lake Nona site in Orlando. We have engaged Lake Nona Land Company LLC as the probed manager for the construction of the permanent facility and under a very aggressive timeline estimate that we could take up occupancy early in 2009 4.5 Identify key senior appointments Key appointments will be the Scientific Director and the Vice President of Operations. These two individuals will work as a team to build the scientific and administrative support teams needed to be successful in Florida, The COO and the VP Business Development have been designated by Awardee as the senior level points of contact for economic development acctivvities related to Awardee's Florida operations. 4.e Implement a Collaboration Program Burnham Orlando will present many valuable opportunities for collaborations with research efforts both within Florida and throughout the United States. Our goal is to develop effective collaborations with the University of Florida, LinMersity of Central Fkxida, Florida Atlantic University, MD Anderson and other research groups wherever possible. This will iNtially require information dissemination indudln0 seminar programs that desatbe the growing capabilities of Burnham Florida to potential collaborstore, as well as printed and web -based materials. 98 Several modes of collaboration are predicted: • Peer-to-peer collaborations that Is common throughout the academic research model. • Access to the technological capabilities will enhance the outside institutions' chances of success and provide a competitive edge. • Investigators wish to collaborate on either preciinical or clinical development of a compound. These proposals will be examined based upon scientific merit. The goal Is to leverage the joint effort to generate external funding to support the collaborative activities at both participating Institutions. 4,7 Implement a Graduate Program The Burnham Institute plays a very important role in the education of a large number of future scientists through the training of graduate students. Burnham Florida will establish a Ph.D. graduate program, in conjunction with our Florida University partners, based on the model developed and operated in La Jolla. This program is described below. The Institute started Its graduate program in March 2006. The graduate program offers Ph.D. degree In two subject areas — Integrated and Applied Blosciences and Molecular Medicine. Integrated and Applied Blosolences is uniquely structured to offer students research training In fundamental integration of biology, chemistry and physics while Molecular Medicine Is an expansion of the joint program with UCSD. The Institute also partners with the University of California at San Diego in a joint graduate training program in molecular pathology that supports the training of Ph.D. students. Many .Bumham faculty members have appointments and teach at UCSD and other university departments. Currently, approximately 30 graduate students obtain their primary scientific training. at the Institute. Graduate students make a vital contribution to the Institute's research effort. In 2001 -2002, approximately 32 publications from the Institute named graduate students as coauthors. We envision that we will partner in much the same way with UCF and /or OF to develop an exciting graduate program that will train the scientists of the future. 5 ORGANIZATIONAL PLAN Burnham Florida will be operated as an unincorporated division of BIMR. All employees will be subject to BIMR's Administrative Policies and all Faculty will also be subject to BIMR's Bylaws. The Administrative Policies and Bylaws will be modified and implemented in view of Florida state and local law and regulations. Policy, programmatic and recruitment decisions will be made by the Executive Management Team. 5.1 Scientific Staff The Scientific Director will have responsibility for all scientific operations at the Florida campus. He /she will report directly to the President and CEO and will co- ordinate Florida campus activities with the La Jolla -based Center Directors including all Faculty level recruiting and hiring. The Scientific Staff recruitment will be initiated by the Scientific Director and will follow Burnham guidelines for recruitment of faculty or Principal Investigators (PI's). This includes seminar presentations, visits with and assessment by Burnham La Jolts faculty, letters of recommendation, and a written summary of their proposed research activities. it is anticipated that heads of each of the discovery research programs and technology cores will be recruited Initially and that these department heads will report to the Scientific Director. The program heads will act as anchors for future hiring within each program or technology core. 9B Start-up packages for Pis may Include research support for up to three years. It will be expected that all faculty will develop sufficient support after three. years to sustain their individual research programs, including salaries. It Is likely that the biomedical faculty will be recruited primarily from academia, whereas the technology and drug discovery faculty will be recruited from a mix of academic laboratories as well as biotechnology and pharmaceutical corporations. The Scientific Director and the Technology Center Director will both be faculty members. We are looking at the Scientific Director as being a luminary in his/her field and that will also direct a research laboratory. The Technology Center Director wig be responsible for putting Into place all of core facilities. The first cores in the temporary facility will be chemistry, genomlcs, and In vitro pharmacology. Further research support staff will be recruited by senior faculty as well as by statewide and nationwide searches. 5.2 Administrative Staff The Vice Preslden% Operations will have responsibility for all administrative, facility and support operations on the Florida campus, He/She will report directly to the La Jolla based BIMR Executive VP and COO and will co- ordinate the Florida campus activities with the La Jolla based department heads. He/She will be responsible for hiring the following administrative personnel. The Vice President; Finance will have responsibility for accurate financial reporting, internal controls, general accounting systems, accounts raceivable/payable and payroll functions, as well as procurement (purchasing). In addition, the Vice President will be (a) the designed representative of Awardee to responsible for coordination with the Office of Supplier Diversity (b) responsible for establishing and implementing a policy of making purchases from Florida vendors, to the extent It is cost effective and scientifically sound, and (c) responsible for ensuring that appropriate Iiability insurance covering Burnham Florida has been obtained. We anticipate that the VP of Finance will be hired within 12 months of the Effective date of the Innovation Fund Agreement. The Director, . Human Resources will be responsible for (a) Implementing BIMR employment policies, Including BiMR's policies on equal opportunity employment, (b) Implementing a program to conduct workWce recruitment activities at public and private colleges and universities and community colleges in Florida which request the partidpatlon of Burnham Florida, (c) establishing a policy of awarding preference in employment to residents of Florida for administrative and scientific support positions, and (d) implementing a system for ensuring use of the intemet -based job listing system of the Agency for Workforce Innovation in advertising employment opportunities. The Director, Office of Sponsored Programs will have responsibility for the pre- and post -award financial administration of grants and contracts from government and Industry. In addition, the Director will be responsible for establishing and implementing systems for tracking and reporting on (a) the number and dollar value of research grants to be performed by Burnham Florida that are obtained from the Federal Government or sources other than Florida, (b) the percentage of total research dollars received by BIMR from sources other than Florida which is used to conduct research activities by BIMR In Florida, (c) the total amount of funding received by BIMR from sources other than Florida, and (d) tracking and reporting annually the amount of non -Florida funding obtained by Burnham Florida for each full -time equivalent tenure -track faculty member employed at Burnham Florida. The Director, Business Development will have responsibility In conjunction with the Vice President of Business Development for establishing a technology out-Ilosnsing program. In addition, the Director In conjunction with the Vice President, Business Development wig be responsible for (a) annually updating the Sumham Florida business plan, (b) patenting Inventions conceived or reduced to practice using Burnham Florida facilities (c) negotiation and execution of licensing agreements Involving technology developed by Burnham Florida; (d) negotiation and execution collaborative agreements with collegee and universities in Florida and with research institutions in Florida, and commercial third parties. • r The Vice President, External Relations will have responsibility In BiMR Executive Vice President of Development for planning and activities in Florida, The Director will be responsible for marketing donations from persons or entities involving the right to have all or a for or in the memory of any person, living or dead, or for any entity. 6 INFRASTRUCTURE DEVELOPMENT 6.1. Facilities Development will occur In two phases. conjunction with -the La Jolla based Implementing BIMITs philanthropic naming opportunities for charitable portion of the Florida facility named Phase I will be to build out, approximately 14,000 square feet of temporary lab space in the Florida Blood Center (FBC). Lease for the space at the temporary space at FBC has been executed. We would hope to'take up occupancy In this space in April of 2007. Phase 11 will be a completion. of the permanent 175,000 square foot facility at the Lake Nona site in Orlando.. We have engaged Lake Nona Land Company LLC as the project manager for the construction of the permanent facility and under a very aggressive timeline estimate that we could take up occupancy early in 2008 6.2 Capital Equipment Highly specialized capital equipment will be necessary to enable the research programs. The research programs will require capital support for molecular and cell biology, including biochemistry and tissue culture, as well as structural biology. This will require centrifuges,. CO2 incubators, tissue culture hoods, refrigeration and freezer units and an advanced microscopy core l.ncluding confocal and digital deconvolution systems, an automated cell sorter, NMR and robotic protein crystallization systems. The technology cores each require specialized cutting edge equipment. The chemistry core will have a structurally and functionally diverse chemical library will be acquired to achieve a competitive starting point, likely purchased from commercial sources. Analytical chemistry facilities are essential both to confirming the chemical characterization of drug screen actives, as well as for the generation of pharmacokinetle data by the current state- of-the -art methodology, liquid chromatography mass- spectrometry (LC -MS), high -field NMR and supporting computational capabilities. Core systems pharmacology and animal physiology equipment will include hematology and clinical chemistry auto - analyzers, HPLC and mass- spectrometry, ECO and respiratory physiology equipment. The functional genom6 core will provide robotic liquid handling Instrumentation and tissue culture facilities for genome -wide lendvirus -based siRNA screening. in vivo imaging instrumentation for rodent studies will include an MRi, and a bloluminescence and CT scanner. 6.3 Construction of Permanent Campus The permanent campus will be built on a 50 -acre campus located at Lake Nona, Orlando. The campus will comprise 175,000 square feet of laboratory and administrative space, The facility will be designed, and constructed by LNLC to enable the BIMR to apply for LEEDS certification The 50 acre campus will be master planned for the future growth of the Florida campus and will Inolude connections to the neighboring university campus and soientific communities. The site will be master planned In a manner to achieve a high level of social interaction among the scientific staff. The laboratory building will be designed for a high degree of flexibility In both the structure and the laboratory support infrastructure. The mechanical, plumbing, piping, and electrical systems will be designed for the Initial designed space, but also for easy access for maintenance and future modifications. 10 "1 • R Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods, cell culture, microscopy, imaging, refrigeration farms, cold rooms, scientific staff offices, library, server and disk storage space, high speed and wireless telecommunications, meetinglseminar rooms, cafeteria, outreach activities and science support staff. The master plan and design for the permanent facilities will take approximately 3 months and the construction will take approximately one year to complete. LUUJ m r o VI a pap., a`3 v } w 46 S N ib H Y w to N N LLLLT r! H � 40 NAT r r N �T°� � apmoM vuf � N N 40 a d tp C M Yj N } w ' -t U, N w 0) C7 M N Roe co ��. r �Mr:v�r a�'r;nMc O M a (Dr t0 M ,D r! o gage Ja r r M99 Y V � I O r r r mm T T n r• rNL � r r N f0 u3 4 0 T rr $ nr to t0 r r xf Cf €�aa1]till 111'aIj 8 1p d S I 'non m N 2 [ 27 °� g$ E� 2 � } §� � - � $ &| [ ■ �| � � 2l ■ «§ » _ _ f| $ R°| � co �k �■ )�K Wk � k2g �� ��■ � - I �K� 2 m & _ � F _ §' � � k` �. � 2 .� - § ,! C . 9 .§ &.E Fk §J§ § _ \ � � ) � 9 \ � � ■` � 7 �I OR � @ ■ ■ &y 9B ��� 0 1 1 1� � � p� n V O CO r r N r tp s x w r r M Mrn1 07 HfNVd;o>1"FM If)M� Qi,gg N w �r,�Ft7M O1Y NNfZI V1 f'7 h�MM !0 Ml�. Is Y1 ION to C6 ISM 1L y�{I �� `S R It- "t 8 cl 1 RIO 10 } � � r W w tpY�p yy QVR aovr,� uis�� w r Y H l (��Q }off M RJR 1rnwoA a q g3 r•-.r" of o e H N O Y1 C I W. N ci' H a.l ,� jt��, app pQ (fpO .. It) d cj fi V v Fy R Q Nq 1I�p INS 1 00A N t7 �Mpp 1 Og 0�� n�Onr7 n r r r rr POMg1 av � N M YI g M ti tt�� v m N _m6 N 41 ° 6 0 v x N w n 9 o a E m W rL N Q > CL a s m aE $v ir c m CO �� fJ r o�G a u cod� ru' m ,S m m c m m a u o 01 m c g C pT c C m e i+ m a m N d O cm T h La N y g � m Bo S C m fV 't b p �; N E m C W C N C m CD CL O m �.E a iox 42 E LL N w f i c c0 E I 8 m C : .� Lo N N E� M W O U' CO ( ►• � � � 8 V 7 7 � I 1A 41 H 3 c m c toi V > E a e Z5' Q m c Tc r aE a a m L U� �t�7c� � �E p e 9 -6 C I v r: 0 E R CL 0 m m c a (P O E L O Co A N E g M a= aat o m o c � w% m� w o c �rc a .� a m c hi U c o@ y A e c N o N O C E a c E r LD IM 13 SL V W�p► E m E � c as c Lo o 2� E vi V's E C U 1= a e s c * l .0 fi c I ' D Q o r Q m !� 0 w LD C CD y� b! tltlllM'o o »- a m� � _ o a CL o mc mod I M - S �C Yt� a Zd W m ID as m cgs tS 2C. $ I m� a W j,.. $ HE cc � N CD ko I- .� P o m a IiJ �a ! IW it M as 1! +It N 1Y i0 R 1 N b eq IA NN 17 M) h NNNt� NN M1 bdi oM N b' IO N ^ 'Q N NN�W�-�- WVN iY i0 Naa�or.. Y1VN A 1 NYhY , ONN jjQ I&I N'1 bb , 1 NNN Jq NN-r 1 N G N 0 0 We 00 9B Exhibit "B" Minimum Requirements The laboratory buildings for the P=anent Facilities will be designed for a high degree of flexibility in both the structure and the laboratory support infrastructure. The large structural bays with heavy floor loading capabilities will allow for a great variety of laboratory space layouts as well as minimizing any vibration issues. The mechanical, plumbing, piping, and electrical system will be designed for the initial designed space, but also with an intent toward reasonable access for maintenance and future modifications. Substantial design elements will be required to make the space suitable for molecular biology, chemistry hoods; cell culture, miscroscopy, imaging, roboticslhigh throughput screening, refrigeration farms, cold rooms, scientific staff offices, library, information technology and communications infrastructure, meeting/seminar rooms, cafeteria, outreach activities and science support staff. The Minimum Requirements shall include meeting the standards set forth in the definition of Permanent Facilities and compliance with any and all applicable conditions of permits and land approvals, all sufficient to obtain a CO. owavZAUWr& M4 3j M0= DW dM 2/1ZWT 8:52 AM f Exhibit "C" Reporting Schedule Report Periods: Stub period of date of initial disbursement of funds under the OTTED Agreement through June 30, 2007 Annual period of July 1, 2007 through June 30, 2008 Annual period of July 1, 2008 through June 30, 2009 Annual period of July 1, 2009 through June 30, 2010 Annual period of July 1, 2010 through June 30, 2011 Annual period of July 1, 2011 through June 30, 2012 Annual period of July 1, 2012 through June 30, 2013 Annual period of July 1, 2013 through June 30, 2014 Annual period of July 1, 2014 through June 30, 2015 Annual period of My 1, 2015 through June 30, 2016 Annual (or stub) period of July 1, 2016 through the Term of the Ground Lease OftrFaMABrAWNA 81762M= ON C" MOM 832 AM EXHIBIT "A" i THE "PERMANENT FACILITIES SITE" [to be attached upon finalization under the Gift Agreement] 1 pp�.tt�uesTt9aTtrot.a 91T6?l00Y9 DW tltlliRt/T0061;;10 PM I f 98 LAKE NONA SOUTH (BURNHAM SITE — PHASE 1) DESCRIPTION: That part of Section 26, Township 24 South, Range 30 East, Orange County, Florida, described as follows: Commence at the Southeast corner of the Southeast 1/4 of said Section 26; thence N89 117'38 "W along the South line of the Southeast 1/4 of said Section 26 for a distance of 2685.48 feet to the Southwest comer of said Southeast 1/4 of said Section 26; thence S86 057'30 "W along the South line of the Southwest 1/4 of said Section 26 for a distance of 1468.22 feet; thence N00 °00'00 "W, 478.12 feet; thence N06 °43'58 "E, 105.88 feet to the POINT OF BEGINNING; thence NO1 °41'57 "W, 577.73 feet to a point on a non - tangent curve concave Northerly having a radius of 3530.00 feet and a chord bearing of N71'55'1 8"E; thence Easterly along the are of said curve through a central angle of 07 °43115" for a distance of 475.68 feet to the point of tangency; thence N68 °03141 "E, 11.90 feet to the point of curvature of a curve concave Southerly having a radius of 40.00 feet and a chord bearing of S77 124116 "E; thence Easterly along the arc of said curve through a central angle of 69 004'06" for a distance of 48.22 feet to the point of tangency; thence S42 052'13 "E, 684.67 feet to the point of curvature of a curve concave Westerly having a radius of 40,00 feet and a chord bearing of S09 °08'02 "W; thence Southerly along the arc of said curve through a central angle of 104 °00'31" for a distance of 72.61 feet to the point of compound curvature of a curve concave Northerly having a radius of 1420.00 feet and a chord bearing of S78 °56'08 "W; thence Westerly along the arc of said curve through a central angle of 35 135141" for a distance of 882.17 feet to the point of tangency; thence N83 °16'02 "W, 94.57 feet to the POINT OF BEGINNING, Containing 12.000 acres more or less and being subject to any rights -of -way, restrictions and easements of record. SKETCH OF DESCRIPTION NOT PLA7IED \ N68�03'4f "E f i,9Q'� BURNHAM SITE PHASE 1 N8376'02 0W 9447' P7 — � - -- POINT OF A-60104 06 C SnT'16"E/ �u \NOT PLATTED 00 R- 1420.90' " -r�35 *3511 L -88217 CS-S78 156'08"W pREpARED FOR, LAKE NONA LAND COMPANY SEE SHEET 2 FOR DESCRIP710N AND NOTES. R -40-00' Aw104W'3f" 0q wS09'O8'02"W � 1 1 I SOUTH 6M SE f/4 � 20 -Y4 -so SEMM SEc710N NdY773B1YYIab•48' �"'� 1u''Y4 -JO POINT OF DONALD W. McINTOSH ASSOCIATES, INC, ENGIlaRS PLANNERS SURVEYORS 2200 PARK AVENUE NORTH, YANIER,P ,M;KF�O�RIDA 32789 (407) 644 -4068 DRAWN 8Y �_ CHECKED BY:22i_ J08 NO. SCALE LHEET DATE- JPAB /W DAB -- 1.0003 ' ' ?— fr\pnjt0oi\RIIlal�sdwp \O1" sNp.Oao NQ L2.. and Mapper ^1.. NOT PLATTED 8 I SOUTH LINE sly 1/4 U- 24-.y0 SEC 26- 24- 30 �SECTI�ON, 7Dw►1SWP, RANGE PC PCC POINT ( CURVATURE PpNOdTT Ci COMPOUND CURVATURE PA T F ENCY AUM NT OA 7A Ca CHOAp HEARING 00 R- 1420.90' " -r�35 *3511 L -88217 CS-S78 156'08"W pREpARED FOR, LAKE NONA LAND COMPANY SEE SHEET 2 FOR DESCRIP710N AND NOTES. R -40-00' Aw104W'3f" 0q wS09'O8'02"W � 1 1 I SOUTH 6M SE f/4 � 20 -Y4 -so SEMM SEc710N NdY773B1YYIab•48' �"'� 1u''Y4 -JO POINT OF DONALD W. McINTOSH ASSOCIATES, INC, ENGIlaRS PLANNERS SURVEYORS 2200 PARK AVENUE NORTH, YANIER,P ,M;KF�O�RIDA 32789 (407) 644 -4068 DRAWN 8Y �_ CHECKED BY:22i_ J08 NO. SCALE LHEET DATE- JPAB /W DAB -- 1.0003 ' ' ?— fr\pnjt0oi\RIIlal�sdwp \O1" sNp.Oao NQ L2.. and Mapper ^1.. 98 EmBTr "B" PERMITTED EXCEPTIONS TO GROUND LEASE 1. Taxes and assessments for the year 2007, which are not yet due and payable. 2. Orange County/Lake Nona Corporation Water and Wastewater Utilities Agreement recorded August 25, 1986 in Official Records Book 3814, Page 2159; First Amendment recorded August 25, 1988 in Official Records Book 4008, Page 3245; Lake Nona Utility Agreement with the City of Orlando recorded July 5, 1994 in Official Records Book 4764, Page 1185; First Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2327; Second Amendment recorded November 20, 1998 in Official Records Book 5620, Page 2331; and Third Amendment recorded September 29, 2000 in Official Records Book 6097, Page 4121, all in the Public Records of Orange County, Florida. 3. Use Agreement with Orange County recorded February 9, 1987 in Official Records Book 3860, Page 704, Public Records of Orange County, Florida. 4. Declaration and Dedication of Avigation Easement recorded February 29, 1988 in Official Records Book 3961, Page 1089, Public Records of Orange County, Florida. 5. Declaration of. Covenant and Waiver dated November 12, 1987 and recorded February 29, 1988, in Official Records Book 3961, Page 1078, Public Records of Orange County, Florida. 6. Lake Nona Transportation Impact Agreement recorded February 14, 1990 in Official Records Book 4157, Page 882, Public Records of Orange County, Florida. 7. That certain unrecorded Amended and Restated Orlando Utilities Commission/Orange County Water Service Territorial Agreement dated May 4, 1994. 8. That certain. unrecorded City of Orlando /Orange County Wastewater Service Territorial Agreement dated May 4, 1994. 9. Stipulatod Final Judgment recorded August 5, 1994 in Official Records Book 4778, page 1036, under Case No, CI -91 -692 and CI -91 -4738; and First Amendment to Schedule A recorded November 20, 1998 in Official Records Book 5620, Page 2336, all in the Public Records of Orange County, Florida. 10. Developer's Agreement by and between City of Orlando, Lake Nona Corporation and Orlando Utilities Commission recorded July 16, 1996 in Official Records Book 5090, Page 924, Public Records of Orange County, Florida. 11. That certain unrecorded Development and Funding Agreement for the Central Florida 'Greeneway Interchange at Lake Nona Planned Development by and between the City of Orlando and Lake Nona Land Company dated June 18, 2001, as may be amended from time to time. 12. Notice of Establishment of the Boggy Creek Improvement District, a Community Development District recorded December 20, 2001 in Official Records Book 6417, Page 3725; Notice of Boundary Amendment recorded January 12, 2004 in Official Records Book 7261, Page 3561; Notice of Boundary Amendment of the Boggy Creek Improvement District recorded March 31, 2006 in Official Records Book 8559, Page 221, all in the Public Records of Orange County, Florida 13. Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District recorded February 7, 2002 in Official Records Book 6452, Page 6958; First Amendment to Interlocal Agreement by and between City of Orlando, Florida and Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation of Various Projects and Services recorded April 11, 2003 in Official Records Book 6865, Page 2178; Second Amendment to Interlocal Agreement between the City of Orlando, Florida and the Boggy Creek Improvement District Regarding the Exercise of Powers and Cooperation on Various Projects and Services, recorded August 11, 2006 in Official Records Book 8800, Page 4934, all in the Public Records of Orange County, Florida, all in the Public Records of Orange County, Florida. 14, Ordinance Establishing a Community Development District, us be known as they Boggy Creek Improvement District recorded June 27, 2002 in Official Records Book 6554, Page 1847; Ordinance Expanding a Community Development District recorded April 11, 2003 in Official' Reoords Book 6865, Page 2169, each in the Public Records of Orange County, Florida; an unrecorded Ordinance Contracting the Boundaries of the Community Development District, Known as the Boggy Creek Community Development District [sic]; Providing a Severability Clause; and Providing an Effective Date, dated February 13, 2006, 15. An Ordinance of the City of Orlando, Florida Amending and Restating the Development Requirements for the Lake Nona Planned Development approved by the City of Orlando on October 25, 2004 and recorded November 12, 2004 in Official Records Book 7699, Page 3056; An Ordinance of the City of Orlando, Florida, Amending the Development Conditions of the Lake Nona Planned Development Zoning District recorded August 10, 2005 in Official Records Book 8120, Page 3662, all in the Public Records of Orange County, Florida. 16. City of Orlando Third Amended and Restated Development Order fvr the Lake Nona Development of Regional Impact DR12005- 00001, dated June 27, 2005 and recorded August 10, 2005 in Official Records Book 8120, Page 3679, Public Records of Orange County, Florida, as may be amended from time to time. ygq�q > 17, Interlocal Agreement among the Boggy Creek Improvement District, the Myrtle Creek Improvement District and the Greenway Improvement District Regarding the . Construction, Management and Financing of Certain Infrastructure Improvements, recorded May 25, 2006 in Official Records Book 8663, Page 1398; First Amendment to Interlocal Agreement among the Boggy Creek Improvement District, the Myrtle Creek Improvement District and the Greenway Improvement District Regarding the Construction, Management and Financing of Certain Infrastructure Improvements, recorded August 2, 2006 in Official Records Book 8782, Page 3865, Public Records of Orange County, Florida, 18, Assignment and Agreement Regarding Development Rights and Obligations by and among Lake Nona Property Holdings, Inc., as Trustee under that Certain Land Trust Agreement Dated as of March S, 1996, Lake Nona Land Company, Lake Nona Estates I, Inc. and Lake Nona Property Holdings, Inc,, recorded February 18, 1997 in Official Records Book 5202, Page 4038, Public Records of Orange County, Florida. 19. Cattle leases, if any; provided same shall be terminable upon thirty days' notice, 20. Master Declaration (Non Residential) for Lake Nona South, executed by Lake Nona Land Company, LLC to be recorded in the Public Records of Orange County Florida.. 21. Any other matters contemplated under the governing contract. 22, The following Restriction, contained in the Special Warranty Deed to County for the Permanent Facilities Site: "[TIE TO SPECIFIC SECTION] Subject to a right of reverter in the Grantor that may be exercised only in the event the following conditions have occurred: (a) (i) the ground lease from Grantee to Burnham Institute for Medical Research ( "Burnham ") executed simultaneously herewith, as evidenced by a Memorandum of Ground Lease recorded simultaneously herewith, has terminated without Burnham's exercising its option to purchase the Property on the terms thereunder; or (ii) the Ground Lease has terminated, Burnham has exercised its option to acquire the Property and Grantee has exercised its right of reverter granted to Grantee at the time of conveyance of the Property to Burnham, if applicable; and (b) Grantor has paid Grantee and the City of Orlando all sums due to each from Grantor under the Funding Parties Agreement executed simultaneously herewith; then in that event upon filing in the Official Records of Orange County, Florida of an affidavit by the Grantor averring the satisfaction of the above conditions, fee simple title to the Property shall revert to the Grantor and Orange County shall deliver a statutory county deed to the Grantor. This right of reverter shall automatically expire upon the expiration of the right of reverter created in favor of Grantee at the time of conveyance of the Property to Burnham without Grantee's having exercised same or if the Property is conveyed to Bunibarn more than fifteen (15) years after the date hereof." 9B The following two items which shall be as peimi, ed and in accordance with the terms of the Gift A¢reement,SPermanent Facilities Site). 23, Development Agreement by and among Lake Nona Property Holdings, LLC, Lake Nona Land Company, LLC and Orange County, Florida, recorded in Official Records Book , Page , of the Public Records of Orange. County, Florida. The following Easements shall be as Qermitted and in accordance with the temps of the\ Gift Afar —ent; 24. Temporary Access Easement Agreement in favor of the City of Orlando, Florida, recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 25. Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate utility provider(s) recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 26. Drainage Easement in favor of the Lake Nona Land Company, LLC recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 27. Non - Exclusive Access, Utilities and Drainage easements in favor of Lake Nona Land Company, LLC (Entry Road System) recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 28. Temporary Construction Easement in favor of Lake Nona Land Company, LLC (Entry Road System) recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. 29. Access and Utility Easement in favor of Lake Nona Land Company, LLC and/or the appropriate communications provider recorded in Official Records Book , Page , of the Public Records of Orange County, Florida. This instrament prepared by: John P. Lowndes, Esq. a staff employee in the course of duty with the Orange County Attorney's Office of Orange County, Florida COUNTY DEED THIS DEED, Made the day of A.D., 2Q__, by ORANGE COUNTY, a political subdivision of the state of Florida, whose address is Box 1393, Orlando, Florida 32802 -1393, GRANTOR, and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit 501(cx3) corporation, whose address is GRANTEE. WITNESSETH: That the GRANTOR, for and in consideration of the Burn of $10.00 and other valuable considerations, in hand paid by the GRANTEE, the receipt whereof is hereby aclrnowledged, does hereby remise, release, and quit -claim unto the said GRANTEE forever, all the right, title, interest, claim!, and demand which the GRANTOR has in and to the following described lot, piece, or parcel of land, situate, lying and being in the County of Orange, State of Florida, to -wit: ORLDOCS 10838888 2 ff SEE ATTACHED EXHIBIT "A" Property Appraiser's Parcel Identification Number: TO HAVE AND TO HOLD the same together with all and singular the appurtenances thereunto belonging or in anywise appertaining, and all the estate, right, title, interest, lien, equity, and claim whatsoever of the GRANTOR, either in law or equity, to the. only proper use, benefit,"and behoove of the GRANTEE forever. PROVIDED, ALWAYS, NEVERTHELESS, that GRANTOR reserves a reversionary Right of Re -entry that GRANTOR shall be entitled to exercise at any time prior to March 6, 2022 immediately upon the occurrence of the following events: (1) GRANTEE employs fewer than one -half of the total Job Commitment, as defined in blt IT', attached hereto and incorporated herein as an integral part of this DEED, for a particular Report Period, or (2) GRANTEE is in violation of Exclusivity as defined in Exhit M ", then in that event upon filing in the Official Records of Orange County, Florida of an affidavit by the GRANTOR of this Right of Re -entry speaking to such occurrence, fee simple title to the herein - conveyed property shall revert to the GRANTOR, and GRANTEE shall deliver special warranty deeds to the GRANTOR together with all such documentation as may be t reasonably necessary to affect said reverter. Any ambiguity in the reversionary conditions of this Deed shall be resolved strictly by reference to that certain GRANT AGREEMENT BY AND AMONG ORANGE COUNTY, FLORIDA, CITY OF ORLANDO, FLORIDA, LAKE NONA LAND COMPANY, LLC AND BURNHAM INSTITUTE FOR MEDICAL RESEARCH, approved by the City of Orlando City Council on March 5, 2007, and approved by the Orange County Board of County Commissioners March 6, 2007, which is on file with the Clerk to the Board of County Commissioners. ORLDOCS 20838888 2 E 0 1 ms IN WITNESS WHEREOF, the said GRANTOR has caused these presents to be executed in its name by its Board, acting by the County Chairman, the day and year aforesaid. (Official Seal) ORANGE COUNTY, FLORIDA By Board of County Commissioners BY: Richard T. Crotty, County Chairman DATE: ATTEST: Martha O. Haynie, County Comptroller, Clerk to the Board BY; Deputy Clerk Printed Name ORLDOCS 1MBS882 � g EXffiBIT "B" 1. "Job Commitment" shall mean the creation and maintenance of an "Annual Average" of the 303 Jobs for the duration of the applicable Report Period, with a moving two -year average of the wages for all such Jobs created by Burnham equal to at least the Agreed Average Wage. The "Annual Average" shall be computed by adding the total number of Jobs created on or prior to and existing as of the last day of each month during a Report Period and dividing that number by 12. The Job Commitment for the applicable Report Period shall be deemed to have been met if the quotient calculated in accordance with the preceding sentence is equal to or greater than 303. 2. "Agreed Average Wage" means 130% of the average private sector wage in Orange County, Florida as determined by the Agency for Workforce Innovation ( "AWl') in the most recently released ES 202 Report during the year in which Agreed Average Wage is being measured for purposes of the Grant Agreement. As of the Effective Date of the Grant Agreement, the Agreed Average Wage based on AWI's most recent ES 202 Report (2004) is $46,965 (130% of $36,127, the average private sector wage in Orange County, Florida). The term "wage" includes all wages, salaries, commissions, bonuses, drawing accounts (advances to employees against future earnings), prizes and awards (if given by employer for employment), vacation pay, payment to employees of difference between regular pay and jury pay, payments to employees temporarily absent while in military service, wages earned before death but paid after death, dismissal pay, sick pay (not made under a plan or system) and supplemental payments (difference between workers' compensation and employee's salary). 3. "Jobs" shall mean full -time jobs and full -time equivalent jobs (based on a 35 hour work week), and Other Personnel, as defined herein. In tabulating hours worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be included. "Other Personnel" shall mean (i) employees of contractors, joint venture partners or licensees operating under agreement with Burnham that are performing functions or services for Burnham and/or its affiliates in Florida in Burnham's facility in Orlando, Florida and other Central Florida locations consistent with the Permissible Use, and (b) personnel engaged directly by Burnham as independent contractors to whom Burnham issues an IRS Form 1099 (only wages paid by Burnham to such Other Personnel shall be included in wages for purposes of calculation of the moving two -year average under Part VLE. of the Grant Agreement). In addition, to be counted towards Jobs, Other Personnel shall; (a) perform ongoing services or functions for Burnham in the Temporary Facilities or Permanent Facilities that might otherwise be performed by employees, but which Burnham has elected to procure through the services of Other Personnel due to the specialized nature of the expertise required or other business purpose, and/or perform their work for Burnham substantially in the Temporary Facilities or Permanent Facilities (other than customary business travel); and (b) not perform services or functions limited to terms of less than six months; and ORMOCS 10858888 2 (c) not constitute more than 25% of the total Jobs. Jobs shall include binding offers accepted and committed to by the prospective employee or Other Personnel even though the employee's or Other Personnel's commencement date may be deferred by up to one (1) year from the date of employee's or Other Personnel's acceptance of the offer. This definition excludes any position attributable to Burnham by virtue of a merger or acquisition of an existing business or operation in Orange County, Florida. For clarification, Other Personnel and Burnham employees shall only be included in Jobs on a full -time equivalent basis based on a 35 hour work week. For example, if a Burnham full -time employee spends 50% of hit time in California and 50% of his time in Orlando, Florida in a given year, that employee would count as 0,50 of a Job. If a Burnham consultant that constitutes an Other Personnel spends 12 hours per week performing work for Burnham in Orlando, Florida in a given year, that consultant would count as 0.34 of a Job. 4. "Exclusivity." Commencing on the March 6, 2007, Burnham's Primary Operations in the State of Florida shall be at the Temporary Facilities or at the Burnham Campus, Commencing on the March 6, 2007 and until twenty (20) years after such date, Burnham shall not establish, maintain or operate, or commit to establish, maintain or operate, by itself or in concert with other entities, any other biomedical science or research facilities in any state in the United States other than the State of Florida or California (which includes Burnham's participation in the San Diego consortium for regenerative medicine in the State of California); provided however, nothing shall prohibit: (a) Burnham from establishing or engaging in normal collaborative activities with other organizations, or (b) one or more. of Burnham's scientists from performing, normal off -site research associated with projects primarily being conducted at either the Temporary Facilities, the Burnham Campus or the Burnham research facilities in California. ORLDM 10858886 2 9B Prepared By/Return To; John P. Lowndes, Assistant County Attorney Orange County Attorney's Office 201 South Rosalind Avenue, 3'd Floor Orlando, Florida 32801 EXHIBIT "D" MEMQRANOW OF GROUND LEASE THIS MEMORANDUM OF GROUND LEASE dated , 2006 by and between ORANGE COUNTY, FLORIDA, a charter county and political subdivision of the State of Florida, with an address of 201 South Rosalind Avenue, Orlando, Florida 32801' C %essor'j, and BURNHAM INSTITUTE FOR MEDICAL RESEARCH, a California nonprofit public benefit corporation, having its office and principal place of business at 10901 North Torrey Pines Road, La Jolla, California 92037 ("Lessee'. 3M ITNE8SETH: WHEREAS, Lessor and Lessee have entered into that certain Ground Lease Agreement, (the "Lease"), having an Effective Date of , 2006 (the "Lease "), pursuant to which Lessee has leased from Lessor that certain real property legally described in Exhibit "A" attached hereto and made a part hereof (the "Permanent Facilities Site'); and WHEREAS, the parties have executed this Memorandum. for the purpose of giving public notice of the existence of the Lease and certain provisions thereof. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby acknowledge, and give notice of, the existence of the Lease and the Lessee's leasehold interest in the Permanent Facilities Site. The parties also hereby give public notice of the following provisions of the Lease: The fifteen (15) year Term of the Lease commenced on , 2007 and shall expire on , 2022, unless: (a) terminated earlier pursuant to the terms of the Lease, by agreement of the parties, or by operation of law; or (b) extended for a period of up to ten (10) additional years pursuant to the terms of the Lease. The Lease prohibits the fee title estate of Lessor being encumbered by construction liens under Florida Statutes Chapter 713 for improvements done under contract with Lessee. The Lease provides Lessee with an option to purchase the Pennanent Facilities Site at the end of the Lease term in accordance with provisions set forth in the Lease. This Memorandum is not a complete summary of the Lease. Provisions in this Memorandum shall not be used to interpret the provisions of the Lease, and, in the event of conflict between this Memorandum and the Lease, the Lease shall control. ORLIAeu.EST447e91.+ 3176210028 OW ay 111214M 4.146 PM IN WITNESS WHEREOF, the parries have caused this Memorandum to be executed as of the date first -above written, ATTEST: Martha 0. Haynie, County Comptroller; as Clerk of the Board of County Commissioners By: Deputy Clerk LESSOR: ORANGE COUNTY, FLORIDA, a political subdivision of the state of Florida, By: Richard T. Crotty, Mayor (SEAL) PF (Remainder of Page intentionally Left Blank) 0ft14VALE$r, ee4n,4 3S702/0M OHJ dN Z12MM7 8:88 AM Signed and delivered in the presence of two witnesses for Lessee: M By: Printed Name Printed Name STATE OF LESSEE; BURNHAM INSTITUTE FOR MEDICAL RESEARCH By: (Print Name) Its (Print Title) r 98 �I SS: COUNTY OF The foregoing Memorandum of Lease was acknowledged before me this _ _ day of , 200, by the of The Burnham Research Institute, who is personally known to me OR who produced as identification and who did take an oath. Notary Public Print Notary Name NOTARY PUBLIC State of at Large My Commission Expires: 3 0RLlvtEALE$T%M77.4 311!210028 DW dW 2!22120018;33 AM APPROVW BY ORANGE COUNTY BOARD Of COUNTY COMMISSIONERS MAR 0 2097 0 ESCROW AGREEMENT (Grant Funds) UHS ESCROW AGREEMENT (this "Escrow Agreement'I' made and entered into this �,Q r day of March, 2007, by and among Orange County, a political subdivision of the State of Florida (the "County', the City of Orlando, a municipal corporation organized and existing under the laws of the State of Florida ( "City's, Lake Nona Land Company, LLC, a Florida limited liability company ( %NLC'� (County, City and LNLC are sometimes referred to herein collectively referred to as the "Funding Parties'), Burnham Institute for Medical Research, a California nonprofit public benefit 501(c)(3) corporation CBurnham'D (the Funding Parties and Burnham are sometimes referred to herein collectively as the " Principals') and Martha O. Haynie, Comptroller for Orange County (the "Escrow Agent "). WITNESSETH: WHEREAS, Principals entered into the Grant Agreement pursuant to which the Funding Parties have agreed to provide grant funding to Burnham to establish and create the Temporary Facilities and to establish and create the Permanent Facilities on the Permanent Facilities Site on, the terms set forth therein; and WHEREAS, Principals desire that Escrow Agent act as the escrow agent relating to the Grant Agreement; and WHEREAS, Escrow Agent agrees to act as Escrow Agent for the Escrow Property (as hereinafter defined) on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the covenants and agreements herein set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I RECITALS The foregoing recitals are true and correct and are incorporated herein by reference. ARTICLE 2 DEFINITIONS All capitalized terms shall have the meaning set forth in Schedule 1, which is attached hereto and incorporated herein by this reference. ARTICLE 3 ESCROW DEPOSIT AND DISBURSEMENT 3.01 Deposit. County, City and LNLC hereby acknowledge and agree that they will make deposits into the Account based upon and in accordance with the terms and conditions of the Grant Agreement. In accordance ther6w -%, within thirty (30) days after the Effective Date of 98 1 �� ORLMELLESl1B603962 y�, nc'I Meetin03 j 31762=8 VW Vnk ?122/200710:1 B AM city 7 / 1 ? e) •� J ,. o ltem�:.�...-DacumeMar� �/ 01 tom/ 9B the Grant Agreement, County shall deposit with Escrow Agent the sum of Three Million Two Hundred and Sixty -Nine Thousand and no /100 Dollars ($3,269,000) (the "County's Initial Escrow Property"), City shall deposit with Escrow Agent the sum of Two Million Nine Hundred and Sixty-Eight Thousand and no /100 Dollars ($2,968,000) (the "City's Initial Escrow Property ") and LNLC shall deposit with Escrow Agent the sum 'of Seven Hundred and Sixty - Three Thousand and no /100 Dollars ($763,000) (the "LNLC's Initial Escrow Property ") (the County's Initial Escrow Property, the City's Initial Escrow Property and the LNLC's Initial Escrow Property and any other funds deposited subsequently pursuant to the terms of the Grant Agreement, together with interest thereon, being referred to herein collectively as the "Escrow Property'l. Upon disbursement of funds from the Account by Escrow Agent as provided herein, each of the Funding Parties will replenish its respective share into the Account in accordance with Part V.A.3 of the Grant Agreement. During the terra of this Escrow Agreement, Escrow Agent agrees to acknowledge the receipt of the Escrow Property, as and when received, by providing written notice to each of the parties hereto within five (5) days after receipt of such funds; such notice, at Escrow Agent's election, may be by electronic mail (e -mail) to addresses provided by the respective parties. Escrow Agent shall use the Escrow Property to establish the Account to be held, administered and distributed as provided for herein. 3.02 Disbursement of Escrow Property. Upon approval (or deemed approval) of a Draw Request by the Funding Parties in accordance with the requirements of Part V.A.3. of the Grant Agreement, Escrow Agent shall disburse funds to Burnham from the Account in an amount equal to the sum so approved (or deemed approved) Upon Final Completion, Burnham or the Project Manager shall provide all Principals and Escrow Agent evidence thereof; and Escrow Agent shall disburse to Burnham from the Account the sum approved (or deemed approved) by the Funding Parties for disbursement for the final Draw Request under the Development Obligation Agreement. The remaining amounts in the Account, including the Laboratory Allowance and Retainage shall continue to be disbursed in accordance with the Draw Request procedure referenced above until the balance of the Escrow Property in the Account is exhausted; provided, in the event there would otherwise be an amount less than or equal to $5,000.00 left in the Account, such amount shall be disbursed as part of the final Draw Request without Burnham.'s having identified such amount as a reimbursement for a specific Project Cost at such time; provided, further, Burnham shall be required to utilize such amount for Project Cost subsequent thereto. In no event shall Escrow Agent disburse funds from the Account less than or in excess of the sum approved (or deemed approved) by the Funding Parties. Disbursements shall be in the form of a County Warrant payable to `Burnham Institute for Medical Research" and shall be delivered to the address provided in Article 6 below or such other address as Burnham may direct in writing. Notwithstanding anything contained herein to the contrary, any funds remaining in the Account as of earlier of (i) receipt of written notice from County and Burnham of the exercise of the Option under the Ground Lease or (ii) the twelfth anniversary of the Effective Date hereof, shall be disbursed to County for further disbursement to the Funding Parties in accordance with the terms of the Funding Parties Agreement. 3.03 Omitted. 3.04 No Constructive Knowledge. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written ORUVWALE"assoe.z 2 917EV=$ OHJ unit 272F=10:1 B AM a 0 a 011� notice of such matter or thing. Escrow Agent shall not be charged with any constructive notice whatsoever. 3.05 Expenditures by Escrow Agent, In the event instructions from one or more of the Principals would require Escrow Agent to spend any monies or incur any costs, Escrow Agent shall 'be entitled to refrain from taking any action until Escrow Agent has notified Principals that payment for such costs is required and Escrow Agent receives payment for such costs from the appropriate Principal(s). 3.06 Right to Perform Services for Others. Principals acknowledge and agree that nothing in this Escrow Agreement shall prohibit Escrow Agent from serving in a similar capacity on behalf of others. 3.07 Ministerial Duties. The parties agree that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safe keeping of the Escrow Property and for the disposition of the same in accordance with this Escrow Agreement. 3.08 Releases, The Funding Parties and Burnham hereby release Escrow Agent from any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature arising from, or in any way connected with, this Escrow Agreement (hereinafter collectively referred to as "Claims ") with the exception of any Claims arising from, or in any way connected with, a breach of this Escrow Agreement by Escrow Agent or Escrow Agent's failure to follow the instructions contained herein. 3.09 No Obligation to Overdraw. Notwithstanding any provision of this Escrow Agreement to the contrary, Escrow Agent shall not be required to make payment of an amount in excess of the balance in the Account. ARTICLE 4 TERM 4.01 Term and Termination. This Escrow Agreement shall become effective upon execution of this Escrow Agreement by the parties hereto and shall remain in effect unless and until it is terminated as provided for in this Section. This Escrow Agreement may be terminated as follows: A. Upon written notice given by all of Principals of cancellation of designation of Escrow Agent to act and serve in said capacity, in which event, cancellation shall. take effect no earlier than twenty (20) Business Days after notice to Escrow Agent of such cancellation; or B. Upon Escrow Agent's resignation as Escrow Agent, which Escrow Agent may do at anytime upon giving written notice to Principals of its desire to so resign; provided, however, that resignation of Escrow Agent shall take effect no earlier than twenty (20) Business Days after the giving of notice of resignation; or OW.i1RFALE3'f�8606.2 � �,__,. 317EZWU MQ W* YlY1=710:18 AM 90 C. Upon written notice from any one of the parties comprising the Principals to Escrow Agent and to all other Principals that the Grant Agreement has been terminated in accordance with its terms; provided, however, that termination of this Escrow Agreement shall take effect no earlier than twenty (20) Business Days after notice to Escrow Agent and Principals of such termination. D. Upon disbursement of all escrowed funds as provided in Section 3.02. 4.02 Delivery of Escrow Property to Successor Agent. Upon termination of the duties of Escrow Agent in either manner set forth in Section 4.01A. or 4.01B., Escrow Agent shall deliver all of the Escrow Property, including any and all interest and other earnings thereon, to the newly appointed escrow agent designated in writing by all Principals. In the event Principals fail to agree to a successor escrow agent prior to the effective date of the cancellation or resignation, Escrow Agent shall have the right to deposit all of the Escrow Property held hereunder into the registry of an appropriate State Court of competent jurisdiction in Orange County, Florida, and request judicial determination of the rights of Principals by interpleader or other appropriate action. 4.03 Delivery of Escrow Property to the Funding Parties. Upon termination of the duties of Escrow Agent in the manner set forth in Section 4.01 C., Escrow Agent shall deliver all of the Escrow Property, including any and all interest and other earnings thereon, to the Funding Parties pro rata, based upon such party's contribution to the Escrow Property. 4.04 Delivery of Escrow Property to Burnham Upon termination of the duties of Escrow Agent in the manner set forth in Section 4.01D., Escrow Agent shall deliver all of the Escrow Property, including any and all interest and other earnings thereon, to Burnham in accordance with Section 3.02. ARTICLE S DISPUTES In the event Escrow Agent is joined as a parry to a lawsuit by virtue of the fact that it is holding the Escrow Property, Escrow Agent shall, at its option, either: (a) tender the Escrow Property into the registry of the appropriate oourt; or (b) disburse the Escrow Property in accordance with the court's ultimate disposition of the case. In the event Escrow Agent tenders the Escrow Property into the registry of the appropriate court and files an action of interpleader naming Principals and any affected third parties of whom Escrow Agent has received actual notice, Escrow Agent shall be released and relieved from any and all further obligation and liability hereunder or in connection herewith. ARTICLE 6 NOTICES Any notice required to be given hereunder shall be in writing and hand delivered by messenger; mailed, postage prepaid, by United States Certified or Registered Mail, Return Receipt Requested; or dispatched by a nationally- recognized overnight mail delivery service, addressed to the parties as follows: ORLIAEALES'M86596.2 4 31 MV002! 011J unk 2/221200710:18 AM • a Orange County, Florida 201 S. Rosalind Ave. Orlando, Florida, 32802 Attention: Orange County Administrator Facsimile. (407) 836 -7399 E -mail: countyadmin@ocfl.net With a copy to: Orange County Attorney's Office 201 South Rosalind Avenue, 3'd Floor Orlando, Florida 32801 Facsimile: (407) 836 -5888 Email: John.Lowndes@ocfl.net If to City: Chief Financial Officer City of Orlando, Florida 4'h Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Facsimile (407) 246 -2707 Email: rebecca .sutton@cityoforlando,net _. With a copy to: City Attorney City of Orlando, Florida 3ie Floor, City Hall 400 South Orange Avenue Orlando, Florida 32801 Attn: Wesley C. Powell, Assistant City Attorney Facsimile: (407) 246 -2854 Email: Wesley.Powell@CityofOrlando.net If to LNLC: Lake Nona Land Company, LLC 9801 Lake Nona Road Orlando, Florida 32827 Attention: James L. Zboril, President Facsimile: (407) 438 -0207 Email- jzboril@Lakenona.com ORLIIREALEST%M695.2 31762/0028 DW unk y22=710:19 AM Pop U3 With a copy to: Tavistock Corporation 9350 Conroy Windermere Road Windermere, Florida 34786 Attention: Rasesh Thakkar, Chief Executive Officer Facsimile: (407) 876 -0085 Email: kcnight@tavistock.com and Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Deborah H. Johnson, L.L.C. Facsimile: (407) 650 -0920 Email: djohnson@broadandewsel.com If to Burnham: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attu: Karin Eastham, Executive Vice President/CO0 Facsimile: (858) 646 -3184 Email: keastham @burnham.org With a copy to: Burnham Institute for Medical Research 10901 North Torrey Pines Road La Jolla, California 92037 Attn: Vice President Business Development Facsimile: (858) 646 -3105 Email: None and Shutts & Bowen LLP 300 North Orange Avenue, Suite 1000 Orlando, Florida 32802 Attention: Michael Crindstaff, Esq. Facsimile: (407) 425 -8316 Email: mgrindstaff@shutts- law.com or LIMALE OMSj 6 31 TGZMa ow ur* 2r2V=Y 1010 AM and Cooley Godward Kronish LLP 4401 Eastgate Mall San Diego, CA 92121 Attention: L. Kay Chandler, Esq. Facsimile: (858) 550 -6420 Email: kchandler @cooley.com if to Escrow Agent: Martha O. Haynie, Orange County Comptroller 201 South Rosalind Avenue Orlando, Florida 32802 Attn: Fax: (407) 836 -5599 Email: None Notice shall be deemed to have been given and received: (i) if by hand delivery, upon delivery; (ii) if by mail, three (3) days after the date first deposited in the United States mail; (iii) if by overnight courier; on the date shown on the courier's receipt as the date of actual delivery. Facsimile numbers and email addresses are provided as a convenience only; notification by either method is not sufficient to constitute notice hereunder except under the specific circumstance specifically set forth in Section 3.01 herein for email notification from the Escrow Agent. A party may change its address by giving written notice to other parties as specified herein. ARTICLE 7 MISCELLANEOUS 7.01 Governing Law and Venue. This Escrow Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida. The parties admowledge that personal jurisdiction upon proper service will be valid in the State of Florida, and that venue of all actions arising out of or related to this Agreement shall be proper only in a State Court of competent jurisdiction located in Orange County, Florida. 7.02 Modifications to Escrow Agreement. Neither Escrow Agent nor Principals shall be bound by any modification, cancellation or rescission of this Escrow Agreement unless in writing and signed by Escrow Agent and Principals. 7.03 Cumulative Rights. No right, power or remedy conferred upon Escrow Agent by this Escrow Agreement is exclusive of any other right, power or remedy, but each and every such right, power or remedy, shall be cumulative and conoutrent and shall be in addition to any other right, power or remedy Escrow Agent may have under the Escrow Agreement or now or hereafter existing at law, in equity or by statute. The exercise of one right, power or remedy by 7 ORLIVABALES MBM5.2 317520n MU unk yrV=7 10:16 AM Escrow Agent shall not be construed or considered as a waiver of any other right, power or remedy. 7.04 Binding Agreement. This Escrow Agreement shall be binding upon Principals and Escrow Agent and their respective successors and assigns, 7.05 Captions. The captions contained in this Escrow Agreement are for convenience of reference only and in no way define, describe, extend or limit the scope or intent of this Escrow Agreement or the intent of any provision contained herein. 7.06 Exhibits. All Exhibits referenced in this Escrow Agreement are incorporated into this Escrow Agreement by such reference and shall be deemed to be an integral part of this Escrow Agreement. 7.07 Counterparts. This Escrow Agreement may be executed in any two or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. (Remainder of this page is left blank intentionally) ORLIMALESTWOMa 31702M28 MJ udk WZQOD7 10:14 cwt ■ IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be executed as of the day first written above. Signed, sealed and delivered in the presence of: ignature Print Name , YA Signature �r Print Na e ESCROW AGENT: Orange County Comptroller P -- -M M ■ v aRl1ViEALE3T19693"2 9 �.,. 31764/0028 DHJ lnk 4!2412007 10118 AM Signed, sealed and delivered in the presence of: 01) Print Namo ORLIWEALEST\886593.2 10 31762/0028 OHJ unk 2)22J2007 10:18 AM LAKE NONA LAND COMPANY, LLC, a Florida limited liability compan By: Rasesh Thakkar, Vice President • I FAM ATTEST: M . Haynie, County Comptroller As Clerk a and o County Comrnissinners Deputy Clem Date: MAR 0 6 2007 ORANGE COUNW, FLORIDA By: Board of C ty Commi9T- 1; By: ehud T. Cm Orange County Mayor Date:_ri�� -1-�b� I . 11 ORt.,,►tEAlESI IDeea95 2 \ 317B2A028 DMJ u�k 21221200710:16 AM I • ATTEST: CITY OF ORLANDO, a municipal corporation organized and a tang under the laws of the Stat o By: Aiana C. Brenner, City Clerk By; u dy Dyer, or tvy APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, FLORIDA, ONLY: 2007 f Attorne OIRFALE9119999@6.2 l z R�, 81702/0029 DHJ uMc 41TY1200710.18 AM Signed, scaled and delivered I INSTITUTE FOR MEDICAL in the presence of. 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o m / _► m C m O c p z m o O z z m D v m x r m v O v �' m x m ca v D co z x m ca 0 n v X O O 3 0 O -i x m c U3 C- m 0 q W m Z O x M. v r m m v X z -i n a 0 O m z v a m 9 c o� m X a O m z v D m r m T n m n 3 V r 3 3 m r r m T Z m v D m W X O 3 V O O m C V m W m N z Gi 2 a X v O c m r m v O w C O C A 3 m z Z4 z a X 0 v m z 2 m n 2 H 0x0 3Dr LOrr W 0-'0 MX �m m z o �Dp rn C) z �Z z n D z =Z0 r N 2 w 0 rn p W n�Ln rn z W G7 VDU) 02M = z W(nv >z� v�o -Di _v o =zn rn,z D.-q N N �0 316 Un �3D Urn rn v vN z -I o° D � V rnD 070rn v ('� �zrn M �Im> 3 co Z r 74 � r �0 oW O w c� z D .o Z 2 ct z O z m c f v X m m z V Z m a 3 m F" v a m 3 m n n c� M c n fli C O 7C' s O 'a CL cC rp H Z n r m m< u V n m n 3 m 3 m m r m m m v a m Im v O 3 N O 2 m C V M W m H Z 2 a X v O m m O C n 3 O m z a X O vrn Z 2 m n 0 =0 3 rm can 03 1-+ rn n rn X z rn ;am z 3 M m n�v rn C) D z �zrr) �Dz =moo =00oO° m ca n cn rir a 03 �z z m m I"w 0 v >z� v�o -D-i v o zz rn)z Ocrn D -iN 00.4 3- 6 ZHun c3z O m�0 O' Ul z-vi o 0 p0� m pD `Na 0;0 M A M0U) 3rn--i UJ z D r- p0 ow n O�z Z 3 m c� 5 m z a m 3 S Z a � v m v 3 m m cn c m n c� O m ce c aT n ai E O 1 O v w c CL UD m rt m z v m i OWN H Z n r m m< u V m n 3 'v 70v 3 r r m m m ul m z m w °a v O 3 V X 0 2 m C V m q Im m N z m a O a m m v O m w M m W O c° O 3 m Z z a X O v 7�0 m z 2 m n N 70 0=0 3�E m ar VWX Zoo rn;oz �M m Z 0 M a GGv � r)a z 7O Z rn �Dz =Z0 =000 °0 m0ow n;4cn rnzw 7C a Cn 0 3 z z o(v Xz-< v�o -Dives 2zD rn,z w co n D -i N 00N 396 o cf: 3 D Ln ern rn 0 vN z0 -I o p0 j ;a Dp NJ 0 o 0 (n A -M0Ln 3 m D z0� -�5r p r O Oca o(n z� 9 � a rn A O rr z v v m G) z m 3 0 m v` a m 3 ■ m z G) m n m n rt 3 m ce c n ai D O It y O V c a c� rt H Z r rn V A m C) 3 V r 3 m m m m U) z m W v O 3 10 O O 2 m m G V m W m z a X O c X m r M m O OPN W w m O c n 3 m z m z v m O v X m U) z m A w 3D0 r `- M 0 -n O MX rn �M z M Z rn � z �zm D z -0 r- r1i Ou rnWw rnzw G7 �D� O rn =�z M 0 vo cn v �z< vr-00 �v� =ZD rn,z ao w rn D -qN Cl 0o° 3-�6 z "' C3Z rnmv v 0 D o °0r.Vi X D -p 0�rn 0v � A °zrn MG) Ln m D 3 03 -1 D v O o0 n W cEn zZA 19 rp in O O rt s n n � 3 m m � a 3 i 6 m v a a � v m v 3 m � r m m z GI m i n cD 7 c� N Uo c .o n of C 0 mn 7C s 0 V c a U2 elp rl ma H Z r m a X rm m< A m n 3 r m m X 3 r m m m a z m to a v O 3 V 0 O m U) c V m Oo m m z %i a X 0 c 7a0 m r M m O m W m U) O c n 3 m z U) z a m O v m m Z m n 2 M 3D0 CO � 0 -n0 O M ;O Z ;0M Z �D0 � G) G) C) D z Mzrn D Z �Z0 =Woo M cp n N rn z w G7 VDU) O A :9 ��z v rnp ao ui 50 z -< v�o �v �o2 z rnpz �crn �o� :K96 C3D Lnrnv v ^' 0 0 ° O N rno- Ovrn rn O �Un C: v z m 3 M > ca z >r- 71 ° r O OW C Ln Z G m A G O z 3 m v m m z m 3 m v m 3 m m 2 z v m A c� �o c �i n ai 0 1 Z 0 w c CL U2 m 0 V S; m A 3 r m 700 0 m r m m In m z 2 m W v 0 3 V O O 2 m C m -Ai W m z m a X O C m m 0 m M 1 m O n 3 m z a X O v m m Z m A 70 n cn n 3D0 3�m TO O M z vrn:� zo M D � G)Gv iG) a mzQ D z -O =� °o m ;a rnzw VDU) 0�3 z ca(Ao X z vC)o Gov =zD rn,z �FM D-iN moo° 3 o CM> D z Mrn o z -I o° 00�j Mo- N O °m o �A En °zm M- G) 3m> rn W z0� ri X °o OW ON c� Z S �' Im 3 ro 7 0 z v v �o m U) G) m M a z m a 3 m al m v m 3 A m n cD �o c d U) �a A ai O 1 O M 03 CL ca (D H Z n r rn m< u A m 0 V r r r m 0 m (A N z m w a v 0 3 T 0 -I O m U) C V Am w m z G) 2 a X 0 C m m v 0 w C m O c A 3 m z z a m 0 v m z m A 3D0 3�m o "0 O M rn z U) m z o MDR G)G) o m M z ;ozrn �Dz -O =rN =W °o m oo j n Ln rnzw D N O M =�z OW (AO ;oz� v�� Gov rn2 z D � z 03 do n D-I►v 0 moo° 3-�6 C3D mz y vN z-lo v O V M p OO °m rnA GZi En �m> 3W� D X r v O O o� z� E• _r 3 V O z Ti a G) 3 m m z a° 5 O v m U) U) O r Z C m 2 z G) m J G v a 4 3 .. m A c� 3 c a� A su O z O M c CL U2 r. 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Project Submitted by: Anthony J. Abbate. This written statement is submitted as an exhibit for the public record. I would like to thank the Board of County Commissioners and Chairman Mr. Fred Coyle for allowing these comments to be presented today. A 25 year multi -level tax scheme is being rammed down our throats. The free "gift" of $130 million dollars to Jackson Lab would come from new taxes and fees. This "earmark" is corporate welfare and not acceptable or an option for Collier County citizens. There is a total disconnect with our county leaders. They are working under a philosophy of "presumed consent ". They are wrong. Let's focus on the numbers: The county does not have available the required $130 million dollars. The county can borrow the entire amount by issuing revenue bonds. This works out to $80 million in FY -2011 and $50 million in FY -2013 at an interest rate of 4.5% amortized over 25 years. Total interest cost would be approx. $90 million dollars over the life of the bond issues. Grand total for taxpayers is $220 million dollars or more, depending on any unknown agreements with Jackson Lab or the state of Florida. The second element of this scenario is the impact of the $220 million or more on Long -Term Debt. As of September 30, 2009, the total debt service (principal and interest) to maturity was $1.20 billion. For FY -2010 the principal and interest was $78 million or about 8% of the budget. If you add the proposed additional $220 million to the long -term debt obligation, future year debt service would also increase substantially. How does all this make any sense? The taxpayers of Collier County hand out $130 million to a non - profit, private company without any conditions. Then, the county goes out and borrows the money, plus interest and requires the obligation of $220 million from the taxpayers. This is outrageous and irresponsible, and puts the taxpayer at risk! There is a win -win solution however, for Collier County and Jackson Lab. First, withdraw the entire $130 million dollar Jackson Lab. proposal and agreements for Collier County immediately. Jackson Lab. does not need our money anyway, since they can generate an ample income stream from their own business sector. The commissioners can get back to work with county government which includes providing services, police, fire protection, education, transportation, infrastructure, fiscal responsibility and the safeguard of taxpayer's money. Reducing taxes and fees for all citizens along with reductions in business impact fees will result in job creation for new growth. Jackson Lab. and all other non - profit entities are best served and supported with long -term funding from a variety of sources. These include: other non - profits, local businesses, individual private contributions, foundations, medical schools, teaching hospitals, pharmaceutical companies, federal research grants, and philanthropic revenue globally. These unlimited revenue sources are potential partners for all who plan to locate at the biomedical cluster in Collier County. During the unusually uncertain years ahead, it is time to respect the struggling taxpayers while allowing the capability of the private sector to provide their generosity. Let the free market work, without county "earmarks ". Vj OR WE FLORIDA SUNSHINE LAW COMPLAINT COLLIER BOARD OF COUNTY COMMISSIONERS COMMISSIONERS: Jim Coletta and Donna Fiala DATE: July 16 -17, 2010 EVENT: Fact finding tour of Jackson Laboratory in Bar Harbor Maine FLORIDA SUNSHINE LAW Can two members of a public board attend social functions together? Members of a public board are not prohibited under the Sunshine law from meeting together socially, provided that matters which may come before the board are not discussed at such gatherings. What are the requirements of the Sunshine law? The Sunshine law requires that 1) meetings of boards or commissions must be open to the public; 2) reasonable notice of such meetings must be given, and 3) minutes of the meeting must be taken. What qualifies as a meeting? The Sunshine law applies to all discussions or deliberations as well as the formal action taken by a board or commission. The law, in essence, is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. There is no requirement that a quorum be present for a meeting to be covered under the law. What agency can prosecute violators? The local state attorney has the statutory _ authority to prosecute alleged criminal violations of the open meetings and public records law. Certain civil remedies are also available. C - - - -- Original Message---- - 9B From: Barbara Petersen <Sunshine @floridafaf.org> To: Sent: Tue, Jun 29, 2010 3:52 pm Subject: RE: Possible Sunshine violation? A< a g; neral rule, t the Sunshine Lwx a applies to any dl.scii=.,�son o p ptiblic. ._ ;Ye O., .. a! f frF '.. Sa' A�Zf.Pn FSFe! *,���?.:�� q 7 ..r1I3ECJ; s 7 7 _ .. _� 3 l p e t3 6iE s s =_f] {! Est :' ?.nd didn't di ui, neleCe "} c3.i,31.)n 4:7 the f i i seive S. C€^° har-) tt) tort `v�'---: the- 4�-Ioh to fll>' Ac%wk ory i iVin: m€t:t -eR l`ormect for the sole purpose ;l. fact- finding are not �_ =enerally sLib ect t.) the sunshine law. The fact- linding exception, however, doesn't apply ro an advisor committee, Comprised of commissioners. The thing to do now is to took for some sort of anecdotal evidence that the two did, in fact, discuss the project among themselves. Not an easy task, I'm afraid, but there may be some other violation of taw — have you talked to the ethics commission about the possible ramifications of the two commissioners attending a dinner paid for by a private company seeking public funds? I wish I could be more helpful, Mr. � Good luck. Barbara A. Petersen, President First Amendniew r(?undation TAIahassee= F1__ I C'U ..)C, !1t 1/' TO dw? rp- ,i-)o ro: tvvvw.floricfafat.o .�. ep EXECUTIVE SUMMARY add- oq COMMISSIONER REQUEST FOR BOARD APPROVAL FOR PAYMENT TO ATTEND FUNCTION SERVING A VALID PUBLIC PURPOSE OBJECTIVE: For the Board of County Commissioners to declare a valid public purpose for a Commissioner to attend function /event and approve payment by the Clerk. CONSIDERATIONS: Pursuant to Resolution No. 99 -410, the Board of County Commissioners has determined that attendance at the functions of fraternal, business, environmental, educational, charitable, social, professional, trade, homeowners, ethnic, and civic association /organizations serves a valid public purpose, provided that said functions reasonably relate to Collier County matters. COMMISSIONER: Donna Fiala FUNCTION[EVENT: Fact finding tour of The Jackson Laboratory in Bar Harbor, Maine and meetings with Bar Harbor City Council members. Airfare and hotel deposit. PUBLIC PURPOSE: Meet and interact with business and community leaders. DATE OF FUNCTION/EVENT: July 14 -18, 2010 FISCAL IMPAC :$876.14 - to be paid from Commissioner's travel budget. RECOMMENDATION: That the Board of County Commissioners, in accordance with Resolution No. 99 -410, approve payment by the Clerk for Commissioner Donna Fiala to attend function serving a valid public purpose. PREPARED BY: Susan Jacobs, Executive Aide to the BCC APPROVED BY: Ian Mitchell, Executive Manager, BCC AGENDA DATE: June 22, 2010 WON ff I IV" r ��, @60 Association of American Universities j�,��( ` Page 1 of 1 W AAlLJ MEMBERSHIP: PUBLIC AND PRIVATE 98 Public Private Canadian Georgia Institute of Technology Brandeis University McGill University Indiana University Brown University University of Toronto Iowa State University California Institute of Technology Michigan State University Carnegie Mellon University The Ohio State University Case Western Reserve University The Pennsylvania State University Columbia University Purdue University Cornell University Rutgers, The State University of New Jersey Duke University Stony Brook University-State University of New York Emory University Texas A &M University Harvard University University at Buffalo, The State University of New York The Johns Hopkins University The University of Arizona Massachusetts Institute of Technology University of California, Davis New York University University of California, Berkeley Northwestern University University of California, Irvine Princeton University University of California, Los Angeles Rice University University of California, San Diego Stanford University University of California, Santa Barbara Syracuse University University of Colorado at Boulder Tulane University University of Florida The University of Chicago University of Illinois at Urbana Champaign University of Pennsylvania The University of Iowa University of Rochester The University of Kansas University of Southern California University of Maryland at College Park Vanderbilt University University of Michigan Washington University in St. Louis University of Minnesota, Twin Cities Yale University University of Missouri - Columbia University of Nebraska - Lincoln The University of North Carolina at Chapel Hill University of Oregon University of Pittsburgh The University of Texas at Austin University of Virginia University of Washington The University of Wisconsin - Madison http:// www .aau.edu/about/article.aspx ?id =5474 7/26/2010 July 27, 2010 TO: COLLIER COUNTY COMMISSIONERS FM: GLENDA BEARDSLEY Last month this body voted to allow residents in the next election to decide if they wanted to expand their taxes by 30 million dollars to expand the Naples Zoo and that was the right thing to do. Today there is an issue coming before you much greater in size (over a million dollars) and yet there seems to be hesitancy on the part of this body to include the voters in this decision making process despite the potentially large impact it will have on residents if property taxes are chosen as a means of funding. It seems almost unimaginable that you would see the zoo as warranting a referendum while this expenditure of over a million dollars has, thus far, not generated the same response. Why is this? Could it be because as Commissioner Halas stated in a recent interview with Jeff Lytle of the Naples Daily News that he believed if the public were allowed to decide whether or not they wanted the Jackson Lab in Collier County it would be voted down flatly? If property taxes are to be raised, the option to do so should be a decision made by the public in a scheduled referendum. I beseech you to let the public's voices be heard and be guided by their decision. . Please do not disillusion yourselves into believing that your ability to make decisions critical to the lives of the voting public is infallible. Seek out their opinions. Do not succumb to the temptation of mounting that paternal high horse and getting carried away by the entrapments of political life that become a distraction to the needs of the public who elected you. Is not the collective voice of thousands of people a better gauge of what is in the best interest of all the people than that of five individuals? I suggest you make every attempt you feel is appropriate to persuade the voting public to accept your opinion. However, if in the end they do not, respect the decision of the people who put you into office in the first place.