LEASE AGREEMENT By and Between CTROOK002 LLC, a Delaware limited liability company
Exhibit 10.1
By and Between
CTROOK002 LLC, a Delaware limited liability company
(Landlord)
and
CITI TRENDS, INC., a Delaware corporation
Property: | ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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THIS LEASE AGREEMENT (this “Lease”) is entered into as of the __ day of September, 2022 (the “Effective Date”), by and between CTROOK002 LLC, a Delaware limited liability company (“Landlord”), and CITI TRENDS, INC., a Delaware corporation (“Tenant”).
RECITALS
▇. | ▇▇▇▇▇▇ was the fee simple owner of the Premises prior to the Effective Date. |
▇. | ▇▇▇▇▇▇▇▇ purchased the Premises from Tenant pursuant to that certain Agreement for Purchase and Sale of Real Property dated as of March 14, 2022 (as amended, the “Purchase Agreement”). |
C. | Landlord and Tenant are executing this Lease, pursuant to which Landlord shall lease the Premises to Tenant, on the terms and conditions set forth below. |
NOW THEREFORE, in consideration of the mutual promises, covenants, and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
| B. | “Base Rent”: Base Rent shall be paid in accordance with and in the amounts set forth on Exhibit A attached hereto and made a part hereof, subject to increases as set forth herein. |
| C. | “Building”: The building or buildings located on the Property in the approximate square footages set forth on Exhibit B attached hereto and made a part hereof. |
| D. | “Commencement Date”: The Effective Date. |
| E. | “Expiration Date”: The last day of the calendar month in which the fifteenth (15th) anniversary of the Commencement Date shall occur, subject to extension pursuant to Section 38 of this Lease. |
| F. | “Option to Renew”: Six (6) additional periods of five (5) years each under the terms and conditions set forth in Section 38 of this Lease. |
| G. | “Premises”: Collectively, the Building and the Property. |
| H. | “Property”: certain tracts or parcels of land commonly known as ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, |
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▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇, more particularly described on Exhibit B attached hereto and made a part hereof.
| I. | “Term”: The period commencing on the Commencement Date and expiring on the Expiration Date, unless extended pursuant to Section 38 of this Lease. |
For purposes of this Lease, the following terms shall have the meanings indicated below:
| A. | “ADA”: The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., as the same may be amended from time to time and any and all rules and regulations which have become effective prior to the date of this Lease under such statutes. |
| B. | “Affiliate”: With respect to Landlord or Tenant, shall mean a person or entity that directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with such person or entity. |
| C. | “Alterations”: Defined in Section 14.A hereof. |
| D. | “Anti-Money Laundering Laws”: The BSA and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (commonly referred to as the USA Patriot Act), P.L. 107-56, as the same may be amended from time to time and any and all rules and regulations which have become effective prior to the date of this Lease under such statutes. |
| E. | “Architect” shall mean an architect selected by Tenant to complete any applicable Tenant’s Work, who is reasonably acceptable to Landlord. |
| F. | “Bank”: Defined in Section 22.C.2 hereof. |
| G. | “Base Rent”: Defined in Section 1.A hereof. |
| H. | “BSA”: The Bank Secrecy Act (otherwise known as the Currency and Foreign Transactions Reporting Act), 31. U.S.C. §§ 310 et seq., as the same may be amended from time to time and any and all rules and regulations which have become effective prior to the date of this Lease under such statutes. |
| I. | “Building”: Defined in Section 1.C hereof. |
| J. | “Commencement Date”: Defined in Section 1.D hereof. |
| K. | “Comparable Buildings”: Buildings in the market in which the applicable Building is located that are comparable in size, design, use, age, location, class and quality to such Building. |
| L. | “Condemnation” means any condemnation, eminent domain proceeding or other governmental taking for any public or any quasi-public use, whether pursuant to (i) any Law, general or special, |
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by any governmental authority (civil or military), (ii) an agreement with such governmental authority in settlement of or under threat of any requisition or confiscation, or otherwise or (ii) by private purchase in lieu thereof.
| M. | “Contract”: Defined in Section 47.B hereof. |
| N. | “Control” shall mean with respect to an entity that is a corporation, limited liability company, partnership or other entity, the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the ownership interests of the entity, with respect to any non-publicly traded company, and more than twenty percent (20%) ownership, and a change in two or more board seats related to such ownership, with respect to a publicly traded company. |
| O. | “Default Rate”: The lesser of (i) the Prime Rate plus seven percent (7%) per annum, compounding monthly, or (ii) the highest rate allowed by applicable Law. |
| P. | “Effective Date”: Defined in the Preamble hereof. |
| Q. | “Encumbrance”: Any claim, lien, pledge, option, charge, easement, security interest, deed of trust, mortgage, lease, sublease, attachment, conditional sales agreement, encumbrance, preemptive right, right of first refusal, right of first offer, covenant, condition, restriction, reciprocal easement agreement, declaration or other right of third parties, whether voluntarily incurred or arising by operation of Law, and includes any agreement to give or enter into any of the foregoing. |
| S. | “Event of Default”: Defined in Section 24 hereof. |
| T. | “Exercise Period”: Defined in Section 47.A hereof. |
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| U. | “Expiration Date”: Defined in Section 1.E hereof. |
| W. | “Final Completion Date” shall mean the date that Final Completion of the applicable Tenant’s Work occurs. |
| X. | “Financial Statements”: Defined in Section 31.B hereof. |
| Y. | “General Construction Contract” shall mean with respect to any Tenant’s Work, the applicable construction contract by and between the applicable General Contractor and Tenant and approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. |
| Z. | “General Contractor” shall mean, with respect to any Tenant’s Work, a contractor selected by Tenant to complete such Tenant’s Work and reasonably acceptable to Landlord and licensed in the state where the Property is located. |
| BB. | “Indemnified Party” shall mean, with respect to any indemnification obligation contained in this Lease, the individual or entity so indemnified by the indemnifying party. |
| CC. | “Landlord”: Defined in the Preamble hereof. |
| DD. | “Landlord Claim”: Defined in Section 21.A hereof. |
| FF. | “Landlord Mortgage”: Defined in Section 26.B hereof. |
| GG. | “Landlord Mortgagee”: Defined in Section 26.B hereof. |
| HH. | “Landlord Notice Address”: |
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▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ |
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
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With a copy to |
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c/o Oak Street Real Estate Capital, LLC |
▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ |
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Attention: ▇▇▇▇ ▇▇▇▇▇▇ |
E-mail: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
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With a copy to |
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▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP |
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ |
| II. | “Landlord’s Notice”: Defined in Section 47.A hereof. |
| JJ. | “Landlord’s Representatives”: ▇▇▇▇▇▇▇▇’s agents, attorneys, representatives, members, directors, officers and employees. |
| KK. | “Late Charge”: Defined in Section 5.C hereof. |
| MM. | “LC Issuer Requirements”: Defined in Section 22.C.2 hereof. |
| NN. | “Lease”: Defined in the Preamble hereof. |
| OO. | “Letter of Credit”: Defined in Section 22.C hereof. |
| PP. | “LC Amount”: Defined in Section 22.C hereof. |
| QQ. | “NFA”: Defined in Section 28.H hereof. |
| RR. | “Negotiation Period”: Defined in Section 47.B hereof. |
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| SS. | “Net Award”: entire award payable with respect to the Property by reason of a Condemnation whether pursuant to a judgment or by agreement or otherwise, less any costs incurred by Landlord or Tenant, as the case may be, in collecting such award or proceeds. |
| TT. | “OFAC Laws and Regulations”: All Laws administered by the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury, codified at 31 C.F.R. Part 500 (including those named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action regarding persons or entities with whom U.S. persons or entities are restricted from doing business (including persons or entities who have violated the U.S. Foreign Corrupt Practices Act 15 U.S.C. §§78dd-1, 78dd-2 and 78dd-3), as same may be amended from time to time. |
| UU. | “Offer Price”: Defined in Section 47.A hereof. |
| VV. | “Option to Renew”: Defined in Section 1.F hereof. |
| YY. | “Plans” shall mean, with respect to any Tenant’s Work, the plans and specifications prepared by the Architect and approved by Landlord. |
| ZZ. | “Premises”: Defined in Section 1.G hereof and described in Exhibit B. |
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| hundred (300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one (91) days. |
| BBB. | “Prior Environmental Reports”: Defined in Section 28.C hereof. |
| CCC. | “Prohibited Persons”: Defined in Section 17.B hereof. |
| DDD. | “Property”: Defined in Section 1.H hereof. |
| EEE. | “Purchase Agreement”: Defined in Recital B hereto. |
| FFF. | “Rating Agencies”: Defined in Section 22.C.2 hereof. |
| GGG. | “Real Estate Taxes”: Defined in Section 8.A hereof. |
| JJJ. | “Renewal Amendment”: Defined in Section 38.E hereof. |
| KKK. | “Renewal Notice”: Defined in Section 38.A.1 hereof. |
| LLL. | “Renewal Option”: Defined in Section 38.A hereof. |
| MMM. | “Renewal Term”: Defined in Section 38.A hereof. |
| OOO. | “Rent”: Defined in Section 5.A hereof. |
| PPP. | “Repossessed Premises”: Defined in Section 25.C hereof. |
| QQQ. | “Restoration Standards”: Defined in Section 19.A hereof. |
| RRR. | “Right of First Refusal”: Defined in Section 47 hereof. |
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| SSS. | “SEC”: Defined in Section 31.B hereof. |
| TTT. | “SNDA”: Defined in Section 26.A hereof. |
| UUU. | “Substitute Tenant”: Defined in Section 25.C hereof. |
| VVV. | “Tanks”: Defined in Section 28.H hereof. |
| XXX. | “Temporary Discontinuances”: Defined in Section 4.B hereof. |
| YYY. | “Tenant”: Defined in the Preamble hereto. |
Citi Trends, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Legal Department
| CCCC. | “Tenant’s Purchase Election”: Defined in Section 47.A hereof. |
| EEEE. | “Tenant’s Work”: Defined in Exhibit C hereof. |
| FFFF. | “Term”: Defined in Section 1.I hereof. |
| IIII. | “Utility Charges”: Defined in Section 10.A hereof. |
| ▇. | ▇▇▇▇▇▇▇▇, in consideration of the covenants and agreements to be performed by ▇▇▇▇▇▇, and upon the terms and conditions contained in this Lease, does hereby lease, demise, let and deliver to Tenant, and Tenant, in consideration of the covenants and agreements to be performed by Landlord |
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and upon the terms and conditions contained in this Lease, does hereby lease from Landlord, the Premises, to have and to hold for the Term. Tenant acknowledges receipt and delivery of complete and exclusive possession of the Premises, subject to the Permitted Encumbrances. Tenant acknowledges and confirms that for a substantial period prior to and up to and including the execution of this Lease, ▇▇▇▇▇▇ has been in continuous ownership and possession of the Premises, and, accordingly, Tenant is fully familiar therewith, and ▇▇▇▇▇▇ has examined and otherwise has knowledge of the condition of the Premises prior to the execution and delivery of this Lease and has found the same to be satisfactory for its purposes hereunder. Regardless, however, of any knowledge, examination or inspection made by Tenant and whether or not any patent or latent defect or condition was revealed or discovered thereby, Tenant is leasing the Premises “as is,” “where is” and “with all faults” in its present condition. Tenant hereby irrevocably, unconditionally and absolutely waives and relinquishes any claim or action against Landlord whatsoever in respect of the condition of the Premises as of the Commencement Date, including any patent or latent defects or adverse conditions not discovered or discoverable or otherwise known or unknown by ▇▇▇▇▇▇ as of the Commencement Date.
LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN FACT OR IN LAW, IN RESPECT OF THE PREMISES OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS MATERIALS, IT BEING AGREED THAT ALL SUCH RISKS, KNOWN AND UNKNOWN, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT, INCLUDING ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL CONDITION OF THE PREMISES, ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS.
Without limiting the foregoing, ▇▇▇▇▇▇ realizes and acknowledges that factual matters existing as of the Commencement Date now unknown to it may have given or may hereafter give rise to losses, damages, liabilities, costs and expenses that are presently unknown, unanticipated and unsuspected, and ▇▇▇▇▇▇ further agrees that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Tenant nevertheless hereby intends to release, discharge and acquit Landlord and Landlord Mortgagee, and each of their respective successors and assigns, and their respective members, managers, partners, shareholders, officers, directors, agents, attorneys and representatives, from any and all such unknown losses, damages, liabilities, costs and expenses.
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| ▇. | ▇▇▇▇▇▇ acknowledges that fee simple title (both legal and equitable) to the Premises is vested in Landlord and that Tenant has only the leasehold right of possession and use of the Premises as provided herein. |
| A. | The Premises shall be used only for the purpose of receiving, manufacturing, assembling, testing, storing, shipping and selling products, materials and merchandise made and/or distributed by Tenant, for related office uses in all cases subject to and in compliance with all Laws and Permitted Encumbrances. Tenant shall use the Premises only as provided by and in accordance with all Permitted Encumbrances, subject to Landlord’s reservation of rights herein. Tenant shall not use or occupy the Premises, or any part thereof, nor permit or allow the Premises or any part thereof to be used or occupied, for (i) any purpose or in any manner which is in violation of any Law or a violation of the provisions set forth in Section 28 or any other provision of this Lease or (ii) in any manner which violates any certificates of occupancy for the Premises or makes void or voidable any insurance then in force with respect thereto as is required pursuant to Section 16 hereof. Tenant’s occupancy of the Premises will be in compliance with all applicable Laws and insurance requirements, and as otherwise provided in this Lease. Tenant shall neither suffer nor permit the Premises or any portion thereof to be used, or otherwise act or fail to act, in such a manner as (I) might impair Landlord’s title thereto or to any portion thereof, (II) may make possible a claim of adverse use or possession or an implied dedication of the Premises or any portion of the Premises, or (III) may subject the Premises or this Lease to any Encumbrances, other than Permitted Encumbrances. Notwithstanding anything herein to the contrary, Tenant shall not (a) permit any unlawful practice to be carried on or committed in the Premises; (b) make any use of or allow the Premises to be used for any purpose that might invalidate or increase the rate of insurance thereof; (c) deface or injure the Premises; (d) overload the floors, walls or ceilings of the Premises; (e) commit or suffer any material waste in or about the Premises; (f) use the Premises in any manner that may diminish the value of the Premises in any material respect; or (g) use the Premises for any of the following purposes without the Landlord’s prior consent (in its sole and absolute discretion): (i) bar, nightclub, adult bookstore or video shop or other adult entertainment establishment; (ii) incineration or reduction of garbage or any garbage dumps on the Premises; (iii) mortuary; (iv) fire sale, bankruptcy sale or auction house operation; (v) laundry or dry cleaning plant or laundromat; (vi) automobile, truck, trailer or RV repairs on-site (other than as incidental to the use of the Premises as a distribution center, which shall be in accordance with all applicable Laws); (vii) “flea market” secondhand store, surplus or other “off-price” or deep discount store (provided that the uses in this clause (vii) shall be permitted on no more than five percent (5%) of the square footage of the Premises in the aggregate); (viii) massage parlor; (ix) carnival; or (x) gambling or off-track betting operation. |
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after the date that is five (5) years after the Commencement Date, Tenant shall have no obligation to occupy the Premises or to operate any business within the Premises; provided, however, if following the date that is five (5) years after the Commencement Date, Tenant does not occupy the Premises and operate its business on the Premises for a period of one hundred eighty (180) consecutive days for any reason other than a Temporary Discontinuance, Tenant shall cooperate with ▇▇▇▇▇▇▇▇’s efforts to permit a third party to occupy and use the Premises for its business (including, without limitation, executing a commercially reasonable sublease agreement with such third party).
| ▇. | ▇▇▇▇▇▇ shall have the right to access and use the Premises twenty-four (24) hours per day, seven (7) days per week. |
| B. | For purposes of this Lease, the Base Rent and Additional Rent are sometimes collectively referred |
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to as “Rent”; and, in the event of any failure on the part of Tenant to pay any portion of the Rent, every fine, penalty, interest and cost which may be added for nonpayment or late payment of such items, including, without limitation, all amounts for which Tenant is or may become liable to indemnify Landlord and the Landlord Indemnified Parties under this Lease (including reasonable attorneys’ fees and court costs) shall be deemed to be Rent. All Rent is payable in lawful money of the United States of America and legal tender for the payment of public and private debts without notice, demand, abatement, deduction, or setoff under any circumstances, in accordance with the wire or ACH information as Landlord designates to Tenant in writing from time to time, In no event shall Tenant be required to pay to Landlord any item of Additional Rent that Tenant is obligated to pay and has paid to any third party pursuant to any provision of this Lease.
| A. | It is the intent of Landlord and Tenant that this Lease establish a “true lease” of all parcels constituting the Premises for all purposes under the United States Bankruptcy Code, applicable state law, and for Federal income tax purposes. The Rent for the Term is intended to be “fixed rent” within the meaning of Treasury Regulation Section 1.467-1(h)(3) for each annual period. This Lease is a “true lease” and does not represent a financing statement, financing lease, financing agreement, device or arrangement, security interest, security agreement, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, or other financing or trust arrangement or any other non-lease transaction. Each of the parties (1) waives any claim or defense based upon the |
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| characterization of the Lease as anything other than a “true lease”, (2) stipulates and agrees not to challenge, and is estopped from challenging, the validity, enforceability or characterization of the lease of the Premises under the Lease as a “true lease,” (3) stipulates and agrees, and is estopped from challenging, that nothing contained in the Lease creates or is intended to create a joint venture, partnership, equitable mortgage, trust, financing device or arrangement, security interest or the like and (4) shall support the intent of the parties that the lease of the Premises pursuant to this Lease is a “true lease” and does not create a joint venture, partnership, equitable mortgage, trust, financing device or arrangement, security interest or the like, if, and to the extent that, any challenge occurs. ▇▇▇▇▇▇▇▇ does not intend to convey any fee interest in any of the Premises to Tenant. Tenant does not intend to obtain an interest in the Premises other than a leasehold interest pursuant to the Lease. The Lease may not be construed in any manner to create any relationship between the parties other than a landlord-tenant relationship. |
| B. | Landlord and ▇▇▇▇▇▇ acknowledge and agree that this Lease is intended to be a “true lease” and an “operating lease” and not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Lease are those of a true lease. The business relationship created by this Lease and any related documents is solely that of a long term commercial lease between Landlord and Tenant, this Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the agreements contained herein is intended, or shall be deemed or construed, to create a partnership (de facto or de jure) between Landlord and Tenant, to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, or to make Landlord in any way responsible for the debts, obligations or losses of Tenant. Landlord and Tenant shall each use commercially reasonable efforts to take such |
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| actions as may be reasonably required to maintain the status of this Lease as a “true lease” and an “operating lease” |
| B. | If Landlord receives a bill for Real Estate Taxes, Landlord shall provide the bill for each installment of Real Estate Taxes to Tenant promptly upon ▇▇▇▇▇▇▇▇’s receipt of such bill. Tenant shall pay the Real Estate Taxes set forth on such bill prior to when due. Upon Landlord’s written request, Tenant shall provide Landlord with reasonable evidence that such Real Estate Taxes have been paid. If Tenant shall default in the payment of any Real Estate Taxes, Landlord shall have the right (but not the obligation) to pay the same together with any penalties and interest, in which |
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event the amount so paid by Landlord shall be paid by Tenant to Landlord upon demand with interest thereon at the Default Rate. Tenant may pay any Real Estate Taxes in installments, if payment may be so made without penalty, fine, premium or interest, except that on the termination of this Lease any Real Estate Taxes which ▇▇▇▇▇▇ has elected to pay in installments shall be apportioned between Landlord and Tenant based on the time remaining in the Term. All Real Estate Taxes for the tax year in which this Lease shall terminate shall be apportioned between Landlord and Tenant on a cash basis. Notwithstanding anything to the contrary contained in this Lease, under no circumstances shall any federal, state or municipal income taxes, gross revenue taxes, franchise taxes, capital stock taxes, estate or inheritance taxes, margin taxes, capital gains taxes or similar taxes due from or assessed against Landlord with respect to the Property be considered Real Estate Taxes, provided that Tenant shall be responsible, at its sole cost and expense, for the payment of any Business License Fees.
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| ▇. | ▇▇▇▇▇▇▇▇ and Tenant shall, upon request of the other, promptly provide such data as is maintained by the party to whom the request is made with respect to the Premises as may be necessary to prepare any required tax returns and reports required by a governmental authority. |
Tenant shall be liable for and shall promptly pay when due all personal property taxes related to Personal Property and Tenant’s Personal Property placed in the Premises. Tenant may, without ▇▇▇▇▇▇▇▇’s consent, before delinquency occurs, contest any such taxes related to the Personal Property.
| B. | Third Party Management. Tenant shall have the right to manage and operate the Premises (or any portion thereof) utilizing third parties for the management and operation thereof, without obtaining ▇▇▇▇▇▇▇▇’s prior written consent of such third party. Notwithstanding the appointment of any third-party manager, ▇▇▇▇▇▇ shall remain fully responsible for the Premises in accordance with the terms hereof. |
| A. | Throughout the Term, Tenant, at its sole cost and expense, will keep the Premises in a substantially similar condition as existed on the Commencement Date (reasonable wear and tear, damage from fire or other casualty excepted), whether or not the need for such repairs occurs as a result of |
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Tenant’s use, the elements, or the age of the applicable Building, the applicable Property or Tenant’s Personal Property, or otherwise, and will commit or allow no physical waste with respect thereto, and with reasonable promptness, will make all necessary and appropriate repairs and replacements thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Laws and insurance requirements, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen. Tenant’s maintenance, repair and replacement obligations shall extend to and include, without limitation, all systems serving the Premises and, subject to any Permitted Encumbrances, any Parking Areas and landscaping on the Property. The necessity for and adequacy of repairs to any Building or other improvements forming a part of the Premises shall be measured by the standard which is appropriate for and equivalent in quality to such Building’s Comparable Buildings. Tenant’s obligations under this Section 11 shall, without limitation, include the maintenance, repair and replacement (a) at all times, of any and all building systems, machinery and equipment which exclusively serve the Premises, and (b) the bearing walls, floors, foundations, roofs and all structural elements of the Premises. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (i) create (or permit to continue) any dangerous condition, or (ii) create (or permit to continue) any condition which might reasonably be expected to involve any loss, damage or injury to any person or property. All repairs and replacements shall be in quality and class at least equal to the original work and shall be made promptly as and when necessary. Repairs and replacements called for as a result of fire and/or other casualty and Condemnation shall be made pursuant to the provisions of Sections 19 and 20 hereof, respectively. In connection with the foregoing, Tenant’s obligations with respect to the Premises shall include, without limitation, items such as, to the extent applicable:
| 1. | Maintaining, repairing, and replacing, as necessary, the roof of the Building on the Premises; |
| 2. | Maintaining and repairing the bearing walls, floors, foundations, and all structural elements of the Building on the Premises; |
| 3. | Maintaining (including periodic window washing and periodic painting) and repairing the facade and exterior walls of the Building on the Premises; |
| 4. | Repairing and replacing, as necessary, the doors (including, without limitation, any overhead doors) and windows of the Building on the Premises, and the mechanisms therefor; |
| 5. | Causing the regular removal of garbage and refuse from the Premises; |
| 6. | Causing the regular spraying for and control of insect, rodent, animal and pest infestation, and maintaining in good working order and condition all doors (both swinging and roll-up doors), including, without limitation, all weather seals; |
| 7. | Servicing, maintaining, repairing and replacing all systems and equipment serving the Premises, including, without limitation, heating, ventilation, and air-conditioning equipment, and generators; |
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| 9. | Regular sweeping, cleaning and washing of the interior of the Building, including, without limitation, floors, windows and fixtures, and periodic washing and painting of interior walls; |
| 10. | Repairing broken, damaged or leaking walls, bathrooms, ceilings, or fixtures and equipment in the interior of the Building, including, without limitation, plate glass windows, windows, floors and lighting fixtures; |
| 11. | Irrigating and performing all gardening and landscaping of all lawns, trees, shrubs and plantings comprising part of the Premises; and |
| B. | Landlord shall not be required to furnish any services or facilities or make any repairs or alterations in or to the Premises, and Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Premises; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Premises, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Premises (including any parking or common areas which comprise part of the Premises) in any way. Tenant hereby expressly and unconditionally waives, to the fullest extent now or hereafter permitted by Law, the right to make repairs or perform any maintenance at the expense of Landlord which right may be provided for in any Law in effect at the time of the execution and delivery of this Lease or which may hereafter be enacted. Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Premises. However, on default of Tenant beyond the expiration of any applicable notice and cure periods in making such repairs or replacements, Landlord may, but shall not be required to, make such repairs and replacements for Tenant’s account and the expense thereof shall be paid by Tenant to Landlord upon demand with interest at the Default Rate. |
| C. | Landlord hereby assigns to Tenant the non-exclusive right to exercise any and all rights and powers of Landlord under all warranties and guaranties of the manufacturers, contractors and/or materialmen regarding any improvements or systems required by the terms of this Lease to be repaired and maintained by Tenant, if and to the extent that Landlord has any such warranties and guaranties, and ▇▇▇▇▇▇▇▇ agrees to reasonably cooperate with Tenant in the enforcement by |
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| Tenant, at Tenant’s sole cost and expense, of any such warranties or guaranties. |
| D. | Tenant shall initiate the repairs set forth on Exhibit H and diligently prosecute the same to completion, provided that, all such repairs shall be completed within one hundred eighty (180) days after the Commencement Date. |
Tenant shall, at its sole cost and expense, use and maintain the Premises in compliance with all Laws, and Tenant shall, at its sole cost and expense, comply with all Laws applicable to or having jurisdiction over the use, occupancy, operation, and maintenance of the Premises, including without limitation, all Environmental Laws, the ADA and other access laws and those which require the making of any structural, unforeseen or extraordinary changes and including those which involve a change of policy on the part of the governmental body enacting the same. Tenant shall, at its sole cost and expense, comply with all Encumbrances affecting the Premises or any portion thereof (other than Landlord’s obligations to pay debt service to any Landlord Mortgagee under any Landlord Mortgage, or the extent caused by or through Landlord or Landlord’s Representatives without Tenant’s consent (not to be unreasonably withheld, conditioned or delayed), but excluding any Encumbrance required by any governmental authority or pursuant any law, rule or regulation). Tenant, at its sole expense, shall comply with the requirements of policies of special form insurance coverage at any time in force with respect to the Premises as required pursuant to Section 16 hereof and with the provisions of all contracts, agreements and restrictions affecting the Premises or any part thereof in effect as of the date hereof or the ownership, occupancy or use thereof. Without diminishing the obligations of Tenant, if Tenant shall at any time fail to comply as promptly as reasonably practicable with any Law applicable to the Premises, or the use and occupation thereof, Landlord may cause the Premises to so comply and the reasonable costs and expenses of Landlord in such compliance shall be paid by Tenant to Landlord upon demand with interest thereon at the Default Rate.
Upon the expiration of this Lease pursuant to its terms (or, in the event of a termination of this Lease on a date other than the scheduled Expiration Date of this Lease, as promptly as commercially practicable thereafter (but in any event within thirty (30) days thereafter)), Tenant shall surrender to Landlord the Premises, including the Renovations and other Alterations constructed by Tenant therein, with all fixtures appurtenant thereto (but not including furnishings, trade fixtures, furniture, computers, telephone systems, machinery, equipment and other Personal Property installed or placed on the Premises by Tenant) (collectively, “Tenant’s Personal Property”), free and clear of any occupants or tenancies (including subtenancies) (other than subtenants under subleases as in effect on the date hereof) and in compliance with Laws (including, without limitation, Environmental Laws) and in as good (or better) condition and repair as existed as of the Commencement Date, reasonable wear and tear and damage from fire or other casualty excepted, and any new buildings, alterations, improvements, replacements or additions constructed
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by ▇▇▇▇▇▇ and remaining at the Premises, in the same or better condition as when completed, reasonable wear and tear and damage from fire or other casualty excepted. Without limitation to the foregoing, at Landlord’s written request provided that Landlord has reasonable, good faith cause to believe that a Release of Hazardous Materials has occurred or a violation of applicable Environmental Laws then exists on the Property, Tenant shall commission and provide to Landlord, or Landlord may commission, in each event, at Tenant’s sole cost and expense, a Phase I site assessment and, if recommended by such Phase I, a Phase II site assessment of the Premises at Tenant’s sole cost and expense, for purposes of confirming the environmental condition of the Premises and ▇▇▇▇▇▇’s compliance with the terms of the Lease with respect to environmental matters. Any of Tenant’s Personal Property installed or placed on the Premises by Tenant or any subtenant or assignee of Tenant, if not removed within thirty (30) days after termination or expiration of this Lease shall be deemed abandoned and become the property of Landlord without any payment or offset therefor if Landlord so elects. If Landlord shall not so elect, Landlord may remove such property from the Premises and have it stored at Tenant’s risk and expense. Tenant shall repair and restore and save Landlord harmless from all damage to the Premises caused by such removal by Landlord, except to the extent such damage is caused by Landlord or any Landlord’s Representatives gross negligence or willful misconduct.
| B. | All Alterations shall be constructed by Tenant, without expense to Landlord, in a good, professional and workmanlike manner so as not to void or make voidable any roof or other warranties, employing materials of first-class quality free of material defects, and in compliance with all Law, all applicable Encumbrances and all regulations and orders, rules and regulations of the Board of Fire Insurance Underwriters or any other body exercising similar functions, and in compliance with the terms and conditions of this Lease. |
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| C. | Prior to the commencement of construction of any Alteration, Tenant shall deliver to Landlord certificates evidencing the existence of (a) workmen’s compensation insurance with coverage limits not less than statutory limits covering all persons employed for such work; (b) a completed operations endorsement to the commercial general liability insurance policy referred to in Section 16.B; (c) reasonable comprehensive general liability and property damage insurance naming Landlord, its designees and Tenant as additional insureds, with coverage of at least $11,000,000 single-limit or such greater amount as may be reasonably requested by Landlord; and (d) builder’s all risk insurance on a completed value basis (or its equivalent) covering all physical loss, in an amount no less than the full replacement value of the Alterations and existing building in question. |
| D. | Promptly upon the completion of construction of any Alteration that is permanently affixed to the Premises and alters the existing footprint or elevation of a Building, Tenant shall deliver to Landlord one complete set of “as built” drawings thereof (and if the Alterations involve any change to the footprint of the applicable Building or the erection of a new building, an ALTA survey for the Premises certified to Landlord and any Landlord Mortgagee), proof of payment for all labor and materials, and if and to the extent commercially obtainable, copies of warranties and guarantees, if any, from the General Contractor in favor of Landlord and ▇▇▇▇▇▇ (jointly and separately) against defects and deficiencies in materials and workmanship, and requiring the correction of the same upon demand of Landlord and Tenant at the expense of such General Contractor. |
| E. | All Alterations, whether temporary or permanent in character, made in or upon the Premises either by Landlord or Tenant (other than Tenant’s Personal Property installed or placed on the Premises by or on behalf of Tenant) shall be Landlord’s property, and will remain with the Premises without compensation to Tenant. Notwithstanding the foregoing, in the case of any Alteration requiring Landlord’s prior written approval, Landlord may condition such approval on Tenant’s agreement to remove all or a portion of such Alteration at the end of the Term. Landlord shall provide Tenant with notice, prior to the Expiration Date, of ▇▇▇▇▇▇’s obligation to remove any Alteration approved by Landlord at the end of the Term. If Landlord does not notify Tenant that Tenant is obligated to remove such Alteration, such Alteration may be removed at Tenant’s option. Upon the expiration or sooner termination of this Lease, all Alterations on the Premises required by Landlord to be removed as aforesaid, or any part or parts thereof so designated by Landlord, shall be removed from the Premises by Tenant and the Premises restored to the same or better condition than existed immediately prior to the construction of the Alteration, reasonable wear and tear, and damage from fire or other casualty excepted. |
| F. | Notwithstanding any other provision of this Section 14 or the Lease to the contrary, the Renovations have been approved by Landlord but shall otherwise be performed in accordance with, and subject to, this Section 14; provided that Landlord shall not require the removal of all or a portion of the Renovations at the end of the Term. |
| A. | Landlord or Landlord’s Representatives shall have the right to enter, from time to time, the |
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Premises or any portion thereof during normal business hours (or at such other times as approved by Tenant in advance, which approval shall not be unreasonably withheld or delayed, or as may be reasonably necessary in emergency situations) to (i) inspect the Premises, (ii) exercise its rights and/or obligations under this Lease, or (iii) show the Premises to prospective purchasers, lenders or prospective tenants; and Tenant shall not be entitled to any abatement or reduction of Base Rent by reason thereof, nor shall such entry or action by Landlord constitute an actual or constructive eviction or repossession, without ▇▇▇▇▇▇▇▇’s express intention to do so as expressed in writing. No such entry shall be deemed an eviction of Tenant. At any time during which Landlord or Landlord’s Representatives are on the Premises, they shall use commercially reasonable efforts to not unreasonably interrupt or interfere with Tenant’s use of the Premises and shall not cause any damage or injury to persons or property on the Premises and Landlord hereby acknowledges and agrees Landlord will be liable to Tenant for any damage to the Premises, ▇▇▇▇▇▇’s fixtures, or Tenant’s Personal Property caused by the gross negligence or willful misconduct of Landlord, ▇▇▇▇▇▇▇▇’s Representative or Landlord’s prospective purchasers, lenders or prospective tenants. Except in connection with the exercise of any rights or remedies of Landlord hereunder, Landlord shall not (and shall direct Landlord’s Representatives to not) discuss this Lease nor Tenant’s business conducted at the Premises with any on-site employees of Tenant or other personnel at the Premises, in each case, in a manner that materially interferes with ▇▇▇▇▇▇’s operation at the Premises, without Tenant’s consent, in Tenant’s sole and absolute discretion.
| B. | Except as expressly set forth herein, nothing contained in this Lease and no action or inaction by Landlord shall be construed as (i) constituting the consent or request of Landlord, expressed or implied, to any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials or other property for the construction, alteration, addition, repair or demolition or maintenance of or to the Premises or any part thereof or any improvements thereto; or (ii) giving Tenant any right, power or permission to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against Landlord in respect thereof. Notwithstanding anything to the contrary contained herein, Landlord agrees to reasonably cooperate (and not unreasonably withhold its consent) in good faith, and in a timely manner, with Tenant in obtaining or providing, at Tenant’s sole cost and expense, any necessary permits, variances, easements, or rights of entry as needed from time to time by Tenant in Tenant’s Use of the Premises in accordance with the terms and provisions of this Lease, as Tenant may reasonably request including but not limited to the granting of utility or technology easements on the Premises for on-site utilities (e.g., electrical, sewer, water, internet) and in each case as approved by Landlord in accordance with the terms of this Lease. |
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| cost or as otherwise approved in writing by Landlord. The property insurance required hereunder shall (a) cover loss sustained when access to all or a portion of a Building is prevented due to an insured peril at a location in the vicinity of the Premises; (b) cover loss sustained due to the action of a public authority preventing access to a Building provided such order is the direct result of physical damage of the type insured against at such Building or within 1,000 feet of it; (c) insure loss caused by damage or mechanical breakdown; (d) provide an ordinance or law extension with the undamaged portion of the building included up to the building limit and at least a limit equal to 20% of the building limit for demolition and increased cost of construction; (e) cover loss sustained due to the accidental interruption or failure of supplies of electricity, gas, sewers, water or telecommunication up to the terminal point of the utility supplier with the Premises; (f) name Landlord as an Additional Insured and Landlord Mortgagee as the Mortgagee; and (g) contain an endorsement providing coverage for cleanup of sudden and accidental pollution releases, with a sub-limit of at least Ten Thousand and No/100 Dollars ($10,000.00). In addition to the foregoing coverages on each Building and other improvements upon the Premises, Tenant shall maintain property insurance covering Tenant’s machinery, equipment, furniture, fixtures, and all other Tenant’s Personal Property at a limit of liability determined by Tenant in its sole discretion. During the period of any restoration and repair of the Premises or any portion thereof, Tenant shall maintain an “all-risk” property policy or an “all-risk” Builder’s Risk policy on a completed value basis for the full replacement cost of the property being repaired and restored, if and when there is a structural restoration and/or major repair required at any Building (to the extent available). To the extent any portion of the Premises is located within a Special Flood Hazard Area, Tenant shall maintain NFIP flood insurance for the Premises. |
| B. | During the Term, Tenant shall also provide and maintain the following insurance at the terms and in the limits specified below for the Premises: |
| 1. | Commercial General Liability Insurance against claims for third party Bodily Injury, Personal/Advertising Injury, Property Damage, and Products/Completed Operations Liability. Such insurance shall be written on an occurrence basis and such coverage shall include, but not be limited to, assumed contractual liability for the performance by Tenant of the indemnity agreements set forth in this Lease to which this insurance applies. Limits shall be no less than One Million and No/100 Dollars ($1,000,000.00) per occurrence and Two Million and No/100 Dollars ($2,000,000.00) general aggregate with no retention or self-insurance provision unless otherwise agreed to in writing in advance by the Landlord. Tenant shall cause Landlord to be named as an Additional Insured and its lender(s) to be named as Mortgagee under such insurance. |
| 2. | Workers Compensation and Employer’s Liability Insurance insuring against and satisfying Tenant’s obligations and liabilities under the workers compensation laws of the jurisdiction in which the Premises are located, with Employers Liability minimum limits per insured of One Million and No/100 Dollars ($1,000,000.00) Bodily Injury each accident; One Million and No/100 Dollars ($1,000,000.00) Bodily Injury by disease, each employee; and One Million and No/100 Dollars ($1,000,000.00) Bodily Injury by disease policy limit. Policies shall include Voluntary Coverage. The tenant’s worker’s compensation policy shall include a waiver of subrogation in favor of the landlord and its lender(s) or other designees. |
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| 3. | Automobile Liability Insurance for liability arising out of claims for bodily injury and property damage arising from owned (if any), leased (if any), non-owned and hired vehicles used in the performance of the business upon the Premises, with a combined single limit of One Million and No/100 Dollars ($1,000,000.00) per accident for bodily injury and property damage and containing appropriate no-fault insurance provisions wherever applicable. |
| 4. | Umbrella or Excess Liability Insurance written on an occurrence basis and covering claims in excess of the underlying insurance described in the foregoing subsections (1), (2) and (3) above, with a Twenty Five Million and No/100 Dollars ($25,000,000.00) minimum limit per occurrence. Such insurance shall contain a provision that it will drop down as primary and noncontributory insurance in the event that the underlying insurance policy aggregate is exhausted. |
| 5. | Business interruption insurance insuring that the Base Rent will be paid to Landlord for a minimum of twelve (12) months if the Premises is destroyed or rendered untenantable by any cause insured against (it being understood that the existence of such insurance does not reduce Tenant’s obligation to pay Base Rent without diminution). |
| C. | The required limits and coverages of all insurance set forth in Sections 16.A and 16.B above may be reasonably adjusted by Landlord from time to time (but not more frequently than once every five (5) years) in conformity with the then prevailing custom of insuring liability in Comparable Buildings. |
| D. | In the event of a casualty or other loss under any property insurance policy that exceeds the Damage Threshold (hereinafter defined), Tenant shall pay to Landlord the lesser of the amount of the deductible or the full amount of the loss in the case of a loss in an amount less than the deductible, which payment shall be treated in the same manner as insurance proceeds. Tenant shall also cause all such property policies to permit ▇▇▇▇▇▇’s waiver of claims against Landlord under Section 18 for matters covered thereby. Tenant shall cause Landlord to be named as Additional Insured and Landlord Mortgagee to be named as Mortgagee under all property insurance policies and shall cause the coverage to continue for Landlord’s benefit notwithstanding any act or omission on ▇▇▇▇▇▇’s part. By this Section 16, ▇▇▇▇▇▇ intends that the risk of loss or damage to the Premises and all property thereon, including Personal Property and Tenant’s Personal Property described above, be borne by responsible property insurance carriers and Tenant hereby agrees to look solely to, and to seek recovery only from, its respective property insurance carriers, in the event of a loss of a type described above to the extent that such coverage is agreed to be provided hereunder. For this purpose, any applicable deductible shall be treated as though it were recoverable under such policies. |
| E. | All insurance required to be maintained by Tenant pursuant to Section 16.A and 16.B must be maintained with insurers authorized to do business in the jurisdiction in which the Premises is located and which have an A.M. Best Company Rating of at least A/VIII or Standard and Poor’s Rating of at least A. Tenant shall provide to Landlord, and at each renewal of expiring policies, such certificates as may be reasonably required to establish that the insurance coverage required by this Section 16 is in effect from time to time and that, to the extent commercially available, the insurer(s) have agreed to endeavor to give Landlord and Landlord Mortgagee at least thirty (30) |
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| days’ notice prior to any non-renewal or cancellation of, or material modification to, the required coverage. Landlord and Tenant shall cooperate with each other in the collection of any insurance proceeds which may be payable in the event of any loss, including the execution and delivery of any proof of loss or other actions required to effect recovery. Tenant shall cause all liability and property policies maintained by Tenant to be written as primary policies, not contributing with and not supplemental or excess to any coverage that Landlord or Landlord Mortgagee may carry. |
| G. | All policies of insurance required to be maintained pursuant to this Lease shall be endorsed, if commercially available, so that if at any time should they be not renewed, canceled, coverage be reduced (by any party including the insured) which affects the interests of the Landlord or Landlord Mortgagee, such non-renewal cancellation or reduction shall not be effective as to Landlord and Landlord Mortgagee for thirty (30) days, except for non-payment of premium which shall be for ten (10) days after receipt by Landlord of written notice from such insurer of such cancellation or reduction. In addition to the foregoing, all policies of insurance required to be maintained pursuant to this Lease shall contain terms in accordance with Tenant’s normal business practice and shall (i) [intentionally deleted]; (ii) name Landlord to be named as Additional Insured and Landlord Mortgagee to be named as Mortgagee; and (iii) be endorsed to waive any rights of subrogation against Landlord, its lenders, and their respective officers, directors, employees, agents, partners, and assigns. Prior to the cancellation date, all policies of insurance required to be maintained pursuant to this Lease (other than in respect to automobile liability or workers compensation insurance) shall insure the interests of Landlord and Tenant regardless of any breach or violation by Tenant or any other party of warranties, declarations or conditions contained in such policies, any action or inaction of Tenant or others. |
| H. | On or before the Commencement Date, Tenant shall furnish Landlord with certificates of insurance or binders, in a form reasonably acceptable to Landlord, evidencing all of the insurance required by the provisions of this Lease for the benefit of Landlord and required to be in force by the provisions of this Lease. Such certificates of insurance/binders shall be executed by each insurer in the case of the property policies, and in the case of liability policies, by each insurer or by an authorized representative of each insurer where it is not practical for such insurer to execute the certificate itself. Such certificates of insurance/binders shall identify underwriters, the type of insurance, the insurance limits and deductibles and the policy term and shall specifically list the special provisions enumerated for such insurance required by this Lease. Upon Landlord’s written request, Tenant shall furnish copies of all certificates of insurance required to be carried by Tenant pursuant to this Lease. |
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| C. | Tenant has taken reasonable steps, consistent with industry practice for comparable organizations and in any event as required by Law, to ensure that Tenant is and shall be in compliance with all (1) Anti-Money Laundering Laws and (2) OFAC Laws and Regulations. Tenant will not during the Term knowingly engage in any transactions or dealings, or knowingly be otherwise associated, with any Prohibited Persons in connection with the use or occupancy of the Premises. |
| D. | A breach of the representations contained in this Section 17 by ▇▇▇▇▇▇ as a result of which Landlord suffers actual damages shall constitute an immediate Event of Default and shall entitle Landlord to any and all remedies available hereunder, or at law or in equity. Any other provision of this Lease to the contrary notwithstanding, a breach of the representations contained in this Section 17 by Landlord as a result of which Tenant suffers actual damages shall constitute an immediate default by Landlord and shall entitle Tenant to pursue the remedy of recovering its actual damages resulting from such breach. |
Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to
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the property of the releasing party to the extent the loss or damage is covered by property insurance carried or required by this Lease to be carried by the releasing party EVEN THOUGH SUCH LOSS MIGHT HAVE BEEN OCCASIONED BY THE NEGLIGENCE OR WILLFUL ACTS OR OMISSIONS OF LANDLORD OR TENANT OR THEIR RESPECTIVE EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES. Landlord and Tenant shall give each insurance company which issues policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the amount of any deductible or self-insured retention applicable to any loss or damage shall be deemed covered by, and recoverable by the insured under the insurance policy to which such deductible or self-insured retention relates. Each party shall pay any additional expense, if any, for obtaining such waiver.
| B. | Subject to the terms of this Section 19, Landlord shall make available to Tenant the insurance proceeds (net of all reasonable administrative and collection costs, including reasonable attorneys’ |
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fees) paid to Landlord for such repair and rebuilding of the Premises as it progresses (other than business interruption proceeds to be allocated to Rent expenses as aforesaid). Payments shall be made against certification of the Architect responsible for the supervision of the repairs and rebuilding that the work had been performed substantially in conformance with the approved plans and specifications therefor and the value of the work in place is equal to not less than one hundred ten percent (110%) of the aggregate amount advanced by Landlord for the payment of such work. Prior to commencing the repairing and rebuilding, Tenant shall deliver to Landlord for Landlord’s approval a schedule setting forth the estimated monthly draws for such work. Landlord shall contribute to such payments, out of the insurance proceeds being held by Landlord, an amount equal to the proportion that the total net amount so held by Landlord bears to the total estimated cost of repairing and rebuilding, multiplied by the payment by Tenant on account of such work. Landlord may, however, withhold ten percent (10%) from each payment until the work has been completed and unconditional lien releases and/or other proof has been furnished to Landlord that no lien or liability has attached, or will attach, to the applicable Building or the Property or to Landlord in connection with repairing, reconstructing and rebuilding. In addition, disbursement of such proceeds to Tenant are subject to any customary conditions of a Landlord Mortgagee.
| C. | If the Premises or any portion thereof is damaged by fire or other casualty, whether or not from a risk covered by insurance, Tenant shall give Landlord prompt written notice thereof and Rent shall continue unabated notwithstanding any casualty. Tenant waives any statutory rights of termination which may arise by reason of any damage or destruction of the Premises or any portion thereof. |
| F. | If the Building should be materially damaged (i.e., the cost to repair such damage is greater than Five Million and No/100 Dollars ($5,000,000.00)) or totally destroyed by fire or other casualty at any time during the last twelve (12) months of the Term or at any time during a Renewal Term, then Tenant (in addition to promptly delivering the notice described in Section 33) shall, within one hundred twenty (120) days after the date of such casualty, deliver written notice to Landlord of Tenant’s election to either (i) restore the Building to their prior condition or (ii) not restore the Building, terminate this Lease (effective on the one hundred twentieth (120th) day after the date of such casualty), and all Rent due under this Lease shall be paid up to such date by ▇▇▇▇▇▇. If Tenant elects to restore the Improvements, then Tenant shall, at ▇▇▇▇▇▇’s sole cost, promptly proceed with all reasonable diligence to rebuild and repair the Building to substantially the condition in which they existed prior to such casualty and be entitled to any and all insurance proceeds received or receivable under ▇▇▇▇▇▇’s policies as a result of such Casualty. If Tenant elects not to restore the |
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| Building and terminate this Lease, then Tenant shall, at Tenant’s sole cost, shall remove all debris from the Property within one hundred eighty (180) days after the date of such Casualty (unless instructed by Landlord, in writing, to leave the Property in its “as is” condition), and pay to Landlord any and all insurance proceeds received under Tenant’s policies as a result of such Casualty, less (i) the reasonable cost of such demolition and clearing work (if any), and reasonable costs required to make the roof water-tight and the Premises in safe conditions, (ii) the cost of Tenant’s Personal Property and Tenant’s fixtures. |
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substantially all of the Premises under this Section 20.B shall be deemed to have occurred if (i) fifty percent (50%) or more of the square footage of the Premises or any Building thereon shall have been subject to a taking, or (ii) there shall have been a permanent loss of access, ingress or egress, parking capacity or any other appurtenance necessary for the operation of the Premises substantially in the manner in which it had previously been operated and there is no reasonably equivalent replacement therefor.
| C. | If during the Term all or any part of the Premises shall be subject to a Condemnation and if the Lease is not terminated pursuant to Section 20.B as expressly provided in Section 20.B then this Lease shall continue in full effect without abatement or reduction of Rent or other sums payable by Tenant under this Lease, notwithstanding such Condemnation. Tenant shall, promptly after any such Condemnation and at its expense (regardless of whether any awards are available as a result of such taking), repair any damage caused by any such taking in accordance with this Section 20 and the Restoration Standards and so that, after the completion of such repair, the Premises shall be, as nearly as possible, in a condition as good as the condition thereof immediately prior to such taking, except for ordinary wear and tear. All of the Net Award collected by Landlord pursuant to Section 20.A shall be held by Landlord (or Landlord Mortgagee) and applied and paid over toward the cost of repair of damage due to such taking against certificates of Tenant, signed by an authorized officer of Tenant, delivered to Landlord from time to time as such repair progresses or is completed, each such certificate describing such repair for which Tenant is requesting payment, the cost incurred by Tenant in connection therewith and stating that Tenant has not theretofore received payment for such repair. If the cost of repairs shall exceed the Net Award collected by Landlord, Tenant shall pay the deficiency. Any balance remaining in the hands of Landlord after payment of such costs of demolition, repair and restoration shall be retained by Landlord. |
| D. | If the use or occupancy of the Premises or any portion thereof shall be temporarily requisitioned by any governmental authority, civil or military, then this Lease shall continue in full effect notwithstanding such requisition, without abatement or reduction of Rent or other sums payable by Tenant hereunder, and Tenant shall be entitled to receive the entire net award payable by reason of such temporary requisition. Any requisition of eighteen (18) months or longer shall be considered a taking of substantially all of the Premises under Section 20.B, and Tenant shall be afforded the termination rights as and to the extent set forth in said Section 20.B. |
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any Landlord Indemnified Party, for damage, loss or expense, which arise out of, are occasioned by, or are in any way attributable to or related to the following: (i) Tenant’s use or occupancy of the Premises; (ii) the conduct of Tenant’s business at the Premises; (iii) any activity, work or thing done or permitted by or on behalf of Tenant, its subtenants or any Tenant’s Representatives in or about the Premises; (iv) the condition of the Premises; (v) the Lease or any breach or default in the performance of any obligation to be performed by Tenant under the terms of this Lease or arising from any act, neglect, fault or omission of Tenant or Tenant’s Representatives; or (vi) the Premises or any accident, injury to or death of any person or damage to any property howsoever caused in or on the Premises, except to the extent that any of the foregoing are caused by the gross negligence or willful misconduct of Landlord and/or any Landlord Indemnified Parties. Except to the extent expressly prohibited by Law, Tenant, at its expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against any Landlord Indemnified Party (“Landlord Claim”). If at any time a Landlord Indemnified Party shall have received written notice of or shall otherwise be aware of any Landlord Claim which is subject to indemnity under this Section 21.A, such Landlord Indemnified Party shall give reasonably prompt written notice of such Landlord Claim to Tenant; provided, that, except to the extent Tenant is materially prejudiced in its defense of such Landlord Claim, (I) such Landlord Indemnified Party shall have no liability for a failure to give notice of any Landlord Claim, and (II) the failure of such Landlord Indemnified Party to give such a notice to Tenant shall not limit the rights of such Landlord Indemnified Party or the obligations of Tenant with respect to such Landlord Claim. Landlord shall have the right to reasonably control the defense or settlement of any Landlord Claim. Tenant’s liability under this Section 21 shall survive the expiration or earlier termination of this Lease. Notwithstanding anything to the contrary contained herein, none of the indemnification obligations or covenants of Tenant set forth herein shall apply to any facts or circumstances (or Landlord Claims arising solely out of such facts or circumstances) solely occurring on or about the Premises after ▇▇▇▇▇▇’s right to possession of the Premises is terminated or to the extent arising out of the gross negligence or willful misconduct of Landlord or any Landlord Indemnified Parties.
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assignee’s assumption of this Lease with respect to Landlord’s obligations under this Lease to the extent accruing from and after the date of such assumption, in the event of any such sale or assignment other than a security assignment, Tenant shall attorn to such purchaser or assignee and Landlord shall be relieved, from and after the date of such transfer or conveyance, of liability for the performance of any obligation of Landlord contained herein, except for obligations or liabilities accrued prior to such assignment or sale.
| 1. | The Letter of Credit shall (i) be “callable” at sight, irrevocable and unconditional, (ii) be maintained in effect, whether through renewal or extension, for the period from the Commencement Date and continuing until the date (the “LC Expiration Date”) that is ninety (90) days after the expiration of the Term (as the same may be extended), (iii) be fully assignable by Landlord, its successors and assigns, (iv) permit partial draws and multiple presentations and drawings, and (v) be otherwise subject to the International Standby Practices 1998, International Chamber of Commerce Publication No. 590. Upon ▇▇▇▇▇▇’s failure to timely pay Rent or any other sums due under this Lease (beyond any |
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| applicable notice and cure periods), Landlord may, without notice to Tenant and without limiting any other rights Landlord may have herein, draw on such Letter of Credit to satisfy any such unpaid monetary obligation of Tenant, and if, as a result of any drawing by Landlord on the Letter of Credit, the amount of the Letter of Credit shall be less than the LC Amount, Tenant shall, within five (5) business days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency, and any such additional letter(s) of credit shall comply with all of the provisions of this Section 22.C, and if Tenant fails to comply with the foregoing, notwithstanding anything to the contrary contained in this Lease, the same shall constitute an incurable Event of Default by Tenant. |
| 3. | If at any time following the delivery of the Letter of Credit by Tenant pursuant to this Section 22.C the LC Issuer Requirements are not satisfied, then Tenant shall, no later than ten (10) business days thereafter, deliver to Landlord either a replacement Letter of Credit which meets the LC Issuer Requirements. If Tenant fails to deliver a replacement Letter of Credit from an institution that satisfies the LC Issuer Requirements to Landlord within such ten (10) business day period, Landlord, at its option, upon the delivery of written notice to Tenant may draw upon the Letter of Credit and instruct the Letter of Credit issuer to deliver the full amount of the Letter of Credit to Landlord. It is ▇▇▇▇▇▇’s responsibility to maintain and renew the Letter of Credit such that it is in effect at all times until the return of the Letter of Credit to Tenant in accordance herewith. Tenant shall renew such Letter of Credit no later than thirty (30) days prior to any expiration date thereof or replace such Letter of Credit with a replacement Letter of Credit which otherwise meets the LC Issuer Requirements. If Tenant has not renewed the Letter of Credit (and delivered the original of such renewal documentation to Landlord) or delivered a replacement Letter of Credit that satisfies the requirements of this Section 22.C to Landlord at least thirty (30) days prior to the expiration date of the Letter of Credit, Landlord, at its option, may draw upon the Letter of Credit and instruct the Letter of Credit issuer to deliver the full amount of the Letter of Credit to Landlord. |
| 4. | In the event of a transfer of ▇▇▇▇▇▇▇▇’s interest in the Premises, Landlord shall transfer the Letter of Credit, in whole or in part, to the transferee and thereupon Landlord shall, without any further agreement between the parties, be released by Tenant from all liability therefor, and it is agreed that the provisions hereof shall apply to every transfer or assignment of the |
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| whole or any portion of said Letter of Credit to a new landlord. In connection with any such transfer of the Letter of Credit by Landlord, Tenant shall, at ▇▇▇▇▇▇’s sole cost and expense, execute and submit to the Bank such applications, documents and instruments as may be necessary to effectuate such transfer, and Tenant shall be responsible for paying the Bank's transfer and processing fees in connection therewith. |
| 5. | Tenant agrees and acknowledges that (a) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (b) Tenant is not a third party beneficiary of such contract, (c) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (d) in the event Tenant becomes a debtor under any chapter of the United States Bankruptcy Code or any state bankruptcy code, neither Tenant, any trustee, nor ▇▇▇▇▇▇’s bankruptcy estate shall have any right to restrict or limit Landlord’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U.S. Bankruptcy Code or otherwise. |
| D. | In addition, no interest in Landlord or Tenant, or in any individual or person owning directly or indirectly any interest in Landlord or Tenant, shall be transferred, assigned or conveyed to any individual or person whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations and/or who is in violation of any of the OFAC Laws and Regulations, and any such transfer, assignment or conveyance shall not be effective until the transferee has provided written certification to Tenant and Landlord that (A) the transferee or any person who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations, and (B) the transferee has taken reasonable measures to assure than any individual or entity who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations; provided, however, the covenant contained in this sentence shall not apply to any person to the extent that such person’s interest is in or through a U.S. Publicly-Traded Entity. |
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| from the subtenant without waiving any rights under this Lease while such Event of Default is continuing. Any rent Landlord may collect from any such subtenant will be first applied to the Rent due and payable under this Lease and any other amounts then due and payable and then applied to the Rent as it becomes due and payable under this Lease. The collection of the Rent and any other sums due and payable under this Lease, from a person other than Tenant shall not be a waiver of any of Landlord’s rights under this Section 22.F, an acceptance of assignee or subtenant as Tenant, or a release of Tenant from the performance of Tenant’s obligations under this Lease. |
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| be deemed a Transfer pursuant to clause (i) of the definition of “Transfer” under this Lease. Furthermore, the following shall not be deemed a Transfer pursuant to clause (i) of the definition of “Transfer” under this Lease so long as the same do not result in a change of Control of Tenant that is not a Permitted Change of Control: the assignment of this Lease or subletting of the whole or any part of the Premises to, (1) a successor corporation or other entity into which Tenant may merge; (2) a corporation or other entity which may result from the consolidation of Tenant with any other corporation or other entity; or (3) a corporation or other entity to which Tenant may sell all or substantially all of its assets. For the avoidance of doubt, this Section 22.I shall not apply to the restrictions on a change of Control of Tenant that is not a Permitted Change of Control pursuant to clause (ii) of the definition of “Transfer” under this Lease. |
Tenant will not, directly or indirectly, create or permit to be created or to remain, and will promptly discharge, at its expense, any mechanic’s, supplier’s or vendor’s lien, encumbrance or charge on the Premises or any part hereof. The existence of any mechanic’s, supplier’s or vendor’s lien, or any right in respect thereof, shall not constitute a violation of this Section 23 if payment is not yet due upon the contract or for the goods or services in respect of which any such lien has arisen or, if Tenant is protesting or challenging such lien in good faith and has, within thirty (30) days after Tenant receives actual notice of such lien, bonded over such lien. Nothing contained in this Lease shall be construed as constituting the consent or request of Landlord, expressed or implied, of any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials for any construction, alteration, addition, repair or demolition of or to the Premises or any part thereof, and any such contractor, subcontractor, laborer, materialman or vendor shall look solely to Tenant and ▇▇▇▇▇▇’s interest in the Premises to secure the payment of any bills for any labor, services, or materials furnished. Notice is hereby given that Landlord will not be liable for any labor, services or materials furnished or to be furnished to Tenant, or to anyone holding the Premises or any part thereof through or under Tenant, and that no mechanic’s or other liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Premises. If Tenant has not removed any such lien or other encumbrance described above within thirty (30) days after written notice thereof to Tenant, Landlord may, but shall not be obligated to, pay the amount of such lien or other encumbrance or discharge the same by deposit, and the amount so paid or deposited shall constitute Additional Rent and be collectible upon demand with interest at the Default Rate. Landlord hereby consents to the granting of a lien or security interest on the fixtures, furnishings, trade fixtures, inventory, furniture, computers, telephone systems, machinery, equipment and other of Tenant’s Personal Property installed or placed on the Premises by Tenant in connection with any customary credit facility that Tenant has or may have during the Term hereof, and Tenant shall give Landlord written notice of any such lien.
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Each of the following events shall be deemed to be an “Event of Default”, after applicable notice and cure periods, under this Lease: (i) failure to pay Base Rent as and when due, provided that it shall not be an Event of Default if such Base Rent is paid within three (3) business days after written notice thereof (ii) failure to pay or any other monetary obligation due to Landlord within five (5) days after written notice thereof; (iii) Tenant breaches its obligations under Section 4.B; (iv) Tenant becomes insolvent, makes an assignment for the benefit of creditors, or institutes a proceeding under state or federal bankruptcy laws (or successor laws) or Tenant shall be adjudged bankrupt or insolvent in proceedings filed against Tenant; (v) a writ of attachment or execution is levied on this Lease, or a receiver is appointed with authority to take possession of the Premises, which attachment, execution or receiver is not removed within thirty (30) days of filing or appointment of a receiver; (vi) Tenant shall be liquidated or dissolved; (vii) Tenant shall violate Section 23 hereof (subject to the contest and cure rights set forth therein); (viii) the estate or interest of Tenant in the Premises or any part thereof shall be levied upon or attached in any proceeding relating to more than One Hundred Thousand and No/100 Dollars ($100,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or bonded or otherwise similarly secured payment) within the earlier of sixty (60) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord or any earlier period provided by Law for obtaining any stay pending appeal or to prevent foreclosure or sale; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable Law; (ix) subject to Tenant’s right to self-insure, as set forth in Section 16, Tenant fails to maintain any insurance required by this Lease; and (x) failure by Tenant to perform any other covenant, agreement or undertaking of the Tenant contained in this Lease if the failure to perform is not cured within thirty (30) days after ▇▇▇▇▇▇’s receipt of Landlord’s written notice thereof; provided, however, if the breach cannot reasonably be cured within thirty (30) days, the same shall not result in an Event of Default if Tenant commences to cure the breach within thirty (30) days of receipt of Landlord’s written notice and diligently and in good faith continues to prosecute the cure of said breach to completion, provided such breach is cured within one hundred eighty (180) days after ▇▇▇▇▇▇’s receipt of ▇▇▇▇▇▇▇▇’s written notice thereof.
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incurs to cure such default, together with interest at the Default Rate accruing from the date such costs and expenses were incurred, and Tenant agrees that no such entry or action by Landlord shall constitute an actual or constructive eviction or repossession, without Landlord’s express intention to do so as expressed in writing, and no such entry shall be deemed an eviction of Tenant; (v) in accordance with Section 25.B to the extent permitted by applicable Law, accelerate and recover from Tenant all Rent and other monetary sums scheduled to become due and owing under this Lease after the date of such breach for the entire Term and any Renewal Term that has been exercised; and (vi) enforce the provisions of this Lease by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy. Tenant shall reimburse Landlord for any out-of-pocket expenses which Landlord actually incurs in complying with the terms of this Lease on behalf of Tenant, together with interest at the Default Rate.
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| the applicable Building or any other building owned by Landlord suitable for that prospective tenant’s use are (or will be) available; (3) Landlord shall not be obligated to lease such Repossessed Premises to a Substitute Tenant for a rent less than the current fair market rent then prevailing for similar uses in Comparable Buildings for such Repossessed Premises, nor shall Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Landlord’s then current leasing policies for comparable space in the applicable Building or for a building belonging to Landlord in the vicinity; (4) Landlord shall not be obligated to enter into a lease with a Substitute Tenant whose use would: (i) violate any restriction, covenant, or requirement contained in the lease of another tenant of the applicable Building; or (ii) adversely affect the reputation of the applicable Building; and (5) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources to operate such Repossessed Premises in a good and professional manner and to fulfill all of the obligations in connection with the lease thereof as and when the same become due. No reletting shall be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention is given to Tenant by Landlord. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous default and/or exercise its rights under Section 25.A and Section 25.B. |
| D. | Except with respect to acceleration of Rent pursuant to Section 25.B, pursuit of any of the above stated remedies by Landlord after an Event of Default shall not preclude pursuit of any other remedy provided in this Lease or at Law or in equity, nor shall pursuit of any remedy constitute forfeiture or waiver of any remedy of Landlord or payment due to Landlord. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of any other violation or default. Once an Event of Default occurs, Landlord may accept or reject any cure of such Event of Default, in ▇▇▇▇▇▇▇▇’s commercially reasonable discretion (it being acknowledged and understood that the terms of a Landlord Mortgage may affect ▇▇▇▇▇▇▇▇’s ability to accept such cure). |
| E. | If Landlord breaches any representation or warranty or fails to perform any covenant or agreement set forth in this Lease, then Landlord shall have thirty (30) days following the date of its receipt of written notice thereof from Tenant to commence the cure of such alleged breach or failure (i.e., Event of Default). If, upon the expiration of such 30-day period such Event of Default is not cured (provided, however, if the breach cannot reasonably be cured within thirty (30) days, the same shall not result in an Event of Default if Landlord commences to cure the breach within thirty (30) days of receipt of Tenant’s written notice and diligently and in good faith continues to prosecute the cure of said breach to completion), then Tenant, as its sole remedies, may pursue injunctive relief and a claim against Landlord for all direct damages which Tenant may actually suffer by reason of any such breach; provided that, for the avoidance of doubt, in no event shall a breach by this Lease by Landlord give the Tenant the right to offset or ▇▇▇▇▇ ▇▇▇▇ (unless Tenant obtains a final unappealable judgment against Landlord from a court of competent jurisdiction, in which case Tenant shall be permitted to offset the amount set forth in such judgment against sums due to Landlord hereunder to the extent such judgment is not satisfied within thirty (30) days; provided that Tenant shall not be permitted to offset any such judgment against amounts due to a Landlord |
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| Mortgagee or another transferee of Landlord’s rights hereunder pursuant to or after a foreclosure, deed-in-lieu or other similar foreclosure event unless expressly permitted pursuant to the terms of an SNDA (as defined herein) with such Landlord Mortgagee) or to terminate this Lease. |
| B. | For the purposes of this Lease, the following definitions shall apply: |
“Landlord Mortgage” shall mean any financing obtained by Landlord, as evidenced by any mortgage, deed of trust, assignment of leases and rents, financing statement or other instruments, and secured by the interest of Landlord in the Premises or any portion thereof, including any extensions, modifications, amendments, replacements, supplements, renewals, refinancings and consolidations thereof.
“Landlord Mortgagee” shall mean the mortgagee (and its successors and assigns) under any Landlord Mortgage.
| A. | At any time, and from time to time, Tenant shall, promptly and in no event later than ten (10) days after a request from Landlord, execute, acknowledge and deliver to Landlord a certificate in the form attached hereto as Exhibit D or such other form as may be supplied by Landlord certifying: (i) that Tenant has accepted the Premises; (ii) that this Lease is in full force and effect and has not been modified (or if modified, setting forth all modifications); (iii) the commencement and expiration dates of the Term, including the terms of any extension options of Tenant; (iv) the date to which the rentals have been paid under this Lease and the amount thereof then payable; (v) whether, to Tenant’s actual knowledge, there are then any existing defaults by Landlord in the performance of its obligations under this Lease, and, if there are any such defaults, specifying the nature and extent thereof; (vi) that Tenant is not in default under this Lease beyond any grace or cure periods, except as to defaults specified in the certificate; (vii) the capacity of the person executing such certificate, and that such person is duly authorized to execute the same on behalf of ▇▇▇▇▇▇; (viii) that Landlord has no actual involvement in the management or control of decision |
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making related to the operational aspects or the day-to-day operations of the Premises; and (ix) any other information reasonably requested by Landlord.
| B. | At any time, and from time to time, Tenant shall, at ▇▇▇▇▇▇▇▇’s request, use commercially reasonable efforts to obtain estoppel certificates, in a form requested by Landlord or any Landlord Mortgagee, from any applicable counterparties under any applicable declarations, covenants, conditions and restrictions, reciprocal easement agreements or other encumbrances. |
Notwithstanding anything contained herein to the contrary:
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hereto (collectively, the “Prior Environmental Reports”), unless material new developments, claims or information arises after the Effective Date relating to such previous identified matters.
| ▇. | ▇▇▇▇▇▇▇▇ and Landlord’s Representatives, including such environmental consultants as Landlord may designate, shall have the right upon reasonable prior notice, and subject to Section 15 hereof, to enter the Premises and/or conduct appropriate tests and investigations for the purpose of assessing the condition of the Premises or ascertaining that Tenant complies with the terms of this Lease and with all applicable Environmental Laws that relate in any way to the Premises. |
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| information as the Landlord may reasonably require or as may be required by applicable Environmental Laws. |
| I. | Upon the expiration or earlier termination of the Lease, at ▇▇▇▇▇▇▇▇’s request, Tenant, at its sole expense, shall remove from the Premises all Tanks, that are not in place on the Effective Date of this Lease, in accordance with all Environmental Laws and applicable commercial guidelines, perform post-removal testing of soil and groundwater to confirm the presence or absence of contamination associated with such Tanks, and to the extent that such removal involves any |
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| excavation or remedial work at the Premises, Tenant shall perform such remediation and restore the Premises to the same grade level as immediately prior to excavation using clean fill soil, and Tenant shall obtain and provide Landlord a copy of a NFA with respect to the Tank removal and remedial work, as applicable. |
| J. | Notwithstanding anything to the contrary contained in this Section 28 or in this Lease, Landlord shall indemnify, defend and hold Tenant and the Tenant Indemnified Parties harmless, in the manner specified in Section 21, from and against any and all actual liability, claim, expense, cause of action, fines, judgments, settlements, investigation, monitoring and remediation costs, penalties, losses and damages (including reasonable out-of-pocket attorney’s, consultant’s and contractor’s fees) resulting or arising from (i) the Release at or around the Premises of any Hazardous Materials to the extent caused by the gross negligence or intentional misconduct of Landlord or any Landlord Representatives, (ii) any violation of Environmental Law to the extent caused by the gross negligence or intentional misconduct of Landlord or any Landlord Representatives, and (iii) claims by governmental authorities or other third parties associated with any Release of Hazardous Materials or violations of Environmental Laws, in each case to the extent caused by the gross negligence or intentional misconduct of Landlord or any Landlord Representatives. The foregoing indemnity obligations shall survive the expiration or earlier termination of this Lease. |
Except for any announcement intended solely for internal distribution by Landlord or Tenant or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the disclosing party, all media releases or public announcements (including, but not limited to, promotional or marketing material) by Landlord or Tenant or either party’s employees or agents relating to this Lease or its subject matter, or including the name, trade name, trade mark, or symbol of Tenant or an Affiliate of Tenant, or Landlord or an Affiliate of Landlord, shall be coordinated with and approved in writing by the other party prior to the release thereof; provided, that nothing herein is intended to require Tenant’s consent to the identification of Tenant or the particulars of this Lease in connection with any marketing of the Premises or any portion thereof by Landlord.
Except as set forth below, if ▇▇▇▇▇▇ continues to occupy the Premises or any portion thereof after the expiration or other termination of this Lease or the termination of Tenant’s right of possession with respect to the Premises, such occupancy shall be that of a tenancy at sufferance. Tenant shall, throughout the entire holdover period, be subject to all the terms and provisions of this Lease (other than provisions relating to length of the Term) and shall pay for its use and occupancy an amount (on a per month basis without reduction for any partial months during any such holdover) equal to (i) one hundred percent (100%) of the Additional Rent due to Landlord under this Lease for the holdover period, and (ii) one hundred seventy-five percent (175%) of the monthly Base Rent due in the month immediately prior to the expiration or earlier termination of
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the Term. Except as set forth below, no holding over by Tenant or payments of money by Tenant to Landlord after the expiration of the Term shall be construed to extend the Term or prevent Landlord from recovery of immediate possession of the Premises by summary proceedings or otherwise. In the event that ▇▇▇▇▇▇ continues to occupy the Premises or any portion thereof after the expiration or termination of this Lease, such occupancy shall be that of a tenancy at sufferance and Tenant shall be liable to Landlord for all direct and consequential damages which Landlord may suffer by reason of any holding over by ▇▇▇▇▇▇.
| A. | Unless Tenant is a publicly held company (in which case the Tenant’s financial statements are filed with the Securities and Exchange Commission (“SEC”)), within ninety (90) days after the end of each calendar quarter, Tenant shall deliver to Landlord complete audited financial statements of the Tenant by a nationally recognized public accounting firm, including a balance sheet, profit and loss statement, statement of changes in financial condition, income statement with respect to the Property, annual EBITDA projections for the then-current fiscal year of Tenant and all other related schedules for the fiscal period then ended. |
So long as there exists no Event of Default by Tenant, Tenant will have the quiet enjoyment of the Premises without disturbance, in any material respect, by Landlord or its agents representatives or contractees (subject, however, to the exceptions, reservations and conditions of this Lease). Notwithstanding anything contained herein to the contrary, ▇▇▇▇▇▇▇▇ agrees that in no event shall Landlord “lock out” or otherwise exclude Tenant from the Premises without having gone through any legal process required by applicable Law. Any other provision of this Lease to the contrary notwithstanding, a breach of this Section 32 by Landlord as a result of which Tenant suffers actual damages shall constitute an immediate default by Landlord and shall entitle Tenant, as its sole remedies to pursue injunctive relief and a claim against Landlord and such agents, representatives and contractees for all direct damages which Tenant may actually suffer by reason of any such breach; provided that, for the avoidance of doubt, in no event shall a breach of this Section 32 give the Tenant the right to offset or ▇▇▇▇▇ ▇▇▇▇ (unless ▇▇▇▇▇▇ obtains a final unappealable judgment against Landlord from a court of competent jurisdiction, in which case
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Tenant shall be permitted to offset the amount set forth in such judgment against sums due to Landlord hereunder to the extent such judgment is not satisfied within thirty (30) days; provided that Tenant shall not be permitted to offset any such judgment against amounts due to Landlord Mortgagee or another transferee of Landlord’s rights hereunder pursuant to or after a foreclosure, deed-in-lieu or other similar foreclosure event unless expressly permitted pursuant to the terms of an SNDA with such Landlord Mortgagee) or to terminate this Lease.
Any notice, demand, request, or other communication that any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed properly given (a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid, return receipt requested), three (3) business days after mailing; (c) if by Federal Express or other nationally recognized overnight courier service, on the next business day after delivered to such courier service for delivery on the next business day; or (d) if by facsimile or e-mail transmission, on the day of transmission so long as a copy is sent on the same day (or prior thereto) by Federal Express or other nationally recognized overnight courier service for delivery on the next business day, to the addresses set forth in Section 2 hereof, or at such other address as the party to be served with notice has furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice. Attorneys for either party hereto may provide notice of behalf of such party, provided that all other requirements of this Section 33 are satisfied.
Notwithstanding anything to the contrary provided in this Lease, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by ▇▇▇▇▇▇▇▇ and Tenant, that (i) there shall be absolutely no personal liability on the part of the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and Tenant and their successors or assigns, to Landlord and Tenant, as applicable, with respect to any of the terms, covenants and conditions of this Lease, (ii) Landlord and Tenant waive all claims, demands and causes of action against the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and ▇▇▇▇▇▇ and their successors or assigns in the event of any breach by Landlord and Tenant of any of the terms, covenants and conditions of this Lease to be performed by Landlord and Tenant, and (iii) Tenant shall look solely to ▇▇▇▇▇▇▇▇’s interest in the Premises for the satisfaction of each and every remedy of Tenant, as applicable, in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by ▇▇▇▇▇▇▇▇, or any other matter in connection with this Lease or the Premises, such exculpation of liability to be absolute and without any exception whatsoever. No breach by Landlord of any provision of this Lease shall give rise to a right of Tenant to terminate this Lease, it being understood and agreed that ▇▇▇▇▇▇’s sole remedy for any such breach shall be a claim for actual damages (if any) and injunctive relief. Furthermore, Landlord and Tenant hereby knowingly, voluntarily and intentionally waives any right it may have to seek punitive, consequential (except as set forth in Section 30), special and
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indirect damages from Landlord and ▇▇▇▇▇▇ and any of such Landlord’s and ▇▇▇▇▇▇’s direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and ▇▇▇▇▇▇ and its successors or assigns with respect to any matter arising out of or in connection with this Lease or any document contemplated herein or related hereto. The waiver by ▇▇▇▇▇▇ and Landlord of any right it may have to seek punitive, consequential (except as set forth in Section 30), special and indirect damages has been negotiated by the parties hereto and is an essential aspect of their bargain.
This Lease represents the entire agreement and understanding between Landlord and Tenant with respect to the subject matter herein, and there are no representations, understandings, stipulations, agreements or promises not incorporated in writing herein.
No amendments or modifications of this Lease shall be effective unless such amendment or modification is in writing and executed and delivered by and between Tenant and Landlord, nor shall any custom, practice or course of dealing between the parties be construed to waive the right to require specific performance by the other party in compliance with this Lease.
Each of Landlord and Tenant hereby agree that the State of Illinois has a substantial relationship to the parties and to the underlying transaction embodied hereby, and in all respects (including, without limiting the foregoing, matters of construction, validity and performance), this Lease and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Illinois applicable to contracts made and performed therein and all applicable law of the United States of America; except that, at all times, the provisions for the creation of the leasehold estate created by this Lease, enforcement of Landlord’s and Tenant’s rights and remedies with respect to breach of covenants, right of re-entry and repossession, surrender, delivery, ejectment, dispossession, eviction or other in-rem proceeding or action regarding the Premises pursuant to Section 25 hereunder shall be governed by and construed according to the Laws of the State in which the Premises is located, it being understood that, to the fullest extent permitted by law of such State where the Premises is located, the law of the State of Illinois shall govern the validity and enforceability of this Lease, and the obligations arising hereunder. To the fullest extent permitted by law, ▇▇▇▇▇▇ and Landlord hereby unconditionally and irrevocably waive any claim to assert that the law of any other jurisdiction governs this Lease. Words of any gender shall be construed to include any other gender, and words in the singular number shall be construed to include the plural, unless the context otherwise requires. The headings of the sections have been inserted for convenience only and are not to be considered in any way in the construction or interpretation of this Lease. Except as otherwise herein expressly
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provided, the terms of this Lease shall apply to, inure to the benefit of, and be binding upon, the parties and their respective assigns, successors and legal representatives. Any legal suit, action or proceeding against Tenant arising out of or relating to this Lease may be instituted in any federal court in the State or New York or state court sitting in New York County, New York, and Landlord and Tenant each waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding in such federal district or county and state, and Landlord and Tenant each hereby expressly and irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding. In this Lease, the words “include”, “includes” or “including” mean “include without limitation”, “includes without limitation” and “including without limitation”, respectively, and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list.
| 2. | There is no uncured Event of Default beyond any applicable notice and cure period at the time that Tenant delivers the Renewal Notice. |
| B. | The Renewal Term shall be upon the same terms and conditions as in this Lease except: (i) Base Rent for the initial three (3) additional periods of five (5) years each shall be as set forth in Exhibit A attached hereto and made a part hereof; and (ii) for the remaining three (3) additional periods of five (5) years each, Base Rent for the first year of the applicable Renewal Term shall be equal to the greater of (a) one hundred and two percent (102%) of the Base Rent for the immediately preceding lease year, and (b) the then Market Rate for the Premises, and thereafter the Base Rent shall increase by two percent (2%) annually during each such Renewal Term. “Market Rate” for the Premises shall mean the Base Rent rate (including escalations) that the Premises would be expected to be leased for, for a term commencing on the applicable commencement date and ending on the applicable expiration date, in its then-existing condition, in an arms-length transaction between a willing landlord and tenant in the commercial space market existing in the vicinity of the Premises at the time such rate is established. Such determination shall include consideration of (i) the size and location of the Premises, and the quality of, condition of, and the nature of the improvements in, the Building, but shall exclude the value of improvements installed by Tenant in the Premises that are to be removed by ▇▇▇▇▇▇ at the expiration of the Term; (ii) other Comparable Buildings to the Building; (iii) other comparable leasing transactions in comparable locations in the vicinity of the Premises for new leases (with appropriate adjustments for different size premises and different length terms), and the rents and concessions, allowances and commissions granted along with the other terms of such transactions; and (iv) the financial condition of Tenant, provided, however, that in no event shall the Market Rate be less than the rate |
48
of Base Rent in effect at the expiration of the then current Term (or Renewal Term, as case may be).
49
Each of Tenant and Landlord represents and warrants (a) that the individual executing this Lease on its behalf is duly authorized to execute and deliver this Lease on behalf of the corporation, limited liability company or partnership, as the case may be, and (b) that this Lease is binding on the corporation, limited liability company and the partnership in accordance with its terms.
The preparation and submission of a draft of this Lease by either party to the other party shall not constitute an offer, nor shall either party be bound to any terms of this Lease or the entirety of this Lease, until both parties have fully executed a final document. Until such time as described in the previous sentence, either party is free to terminate negotiations without penalty or any further obligation to the other party.
This Lease may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party. Signatures to this Lease, any amendment hereof and any notice given hereunder, delivered electronically via .pdf, .jpeg, .TIF, .TIFF or similar electronic format shall be deemed an original signature and fully effective as such for all purposes. Each party agrees to deliver promptly an executed original of this Lease (and any amendment hereto) with its actual signature to the other party, but a failure to do so shall not affect the enforceability of this Lease (or any amendment hereto), it being expressly agreed that each party to this Lease shall be bound by its own electronically transmitted signature and shall accept the electronically transmitted signature of the other party to this Lease.
50
If any term or other provision of this Lease is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all of the other conditions and provisions of this Lease will nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Lease so as to reflect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
51
| A. | Oklahoma. The following is hereby added to the end of Section 13: “Tenant hereby expressly and absolutely waives, to the fullest extent now or hereafter permitted by Law, any statutory rights which Tenant may have under the terms of Title 41 O.S. Section 52 (or any similar such statute now or hereafter in effect) in all respects, including, without limitation, the rights, if any, to service of notices, storage and disposition of any such Tenant’s Personal Property, and confirms that the foregoing waiver has been negotiated by the parties hereto and is an essential aspect of their bargain.” |
52
| D. | Notwithstanding anything in this Section 47 to the contrary, in no event shall the Right of First Refusal apply to (i) any Remedial Action or (ii) the sale of the Property in connection with the sale of one or more other properties owned by Landlord or any of its Affiliates. |
[Signatures on following page]
53
IT WITNESS WHEREOF, the undersigned have executed this Lease Agreement effective as of the date first written above.
LANDLORD:
CTROOK002 LLC,
a Delaware limited liability company
SIGNATURE PAGE TO LEASE AGREEMENT
54
EXHIBIT B
TO
LEASE AGREEMENT
PREMISES
Address: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Square Footage of Building: 561,761
Legal Description:
TRACT 1:
THE NW ¼ OF THE SW ¼ OF SECTION 23, TOWNSHIP 11 NORTH, RANGE 26 EAST, SEQUOYAH COUNTY, OKLAHOMA, BENG MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AN EXISTING MONUMENT MARKING THE NW CORNER OF NW ¼ OF THE SW ¼; THENCE ALONG THE NORTH LINE OF SAID FORTY, S 89° 31' 36" E, 1,324.43 FEET TO AN EXISTING MONUMENT MARKING THE NE CORNER OF THE NW ¼ OF THE SW ¼; THENCE ALONG EAST LINE OF SAID FORTY, S 00° 00' 40" W, 1,323.17 FEET TO AN EXISTING MONUMENT MARKING THE SE CORNER OF THE NW ¼ OF THE SW ¼; THENCE ALONG THE SOUTH OF SAID FORTY, N 89° 33' 07" W, 1,324.16 FEET TO AN "X" IN CONCRETE MARKING SW CORNER OF THE NW ¼ OF THE SW ¼; THENCE ALONG THE WEST LINE OF SAID FORTY, NORTH 1,323.76 FEET TO THE POINT OF BEGINNING.
TRACT 2:
A private, non-exclusive roadway easement created by that certain Easement Agreement dated September _____, 2022 by and between Citi Trends, Inc., a Delaware corporation, and CTROOK002, LLC, a Delaware limited liability company, recorded ___________, 2022 in Book __________, Page __________.
EXHIBIT B TO LEASE AGREEMENT
EXHIBIT C
TO
LEASE AGREEMENT
GENERAL REQUIREMENTS AND CONDITIONS
All provisions of this Exhibit are expressly subject to the provisions in the Lease above governing any work performed by ▇▇▇▇▇▇ (or an Affiliate of Tenant, as the case may be) on its own behalf, including Alterations or any casualty or condemnation restoration (“▇▇▇▇▇▇’s Work”). In the event of any conflict between the Lease and this Exhibit, the Lease shall control.
Tenant’s Work will be performed by ▇▇▇▇▇▇ in substantial accordance with final Plans approved by Landlord (where such approval is provided for in the Lease). Tenant’s General Contractor(s) shall secure and pay for all necessary permits, inspections, certificates, legal approvals, certificates of occupancy and/or fees required by Law and/or utility companies with respect to Tenant’s Work.
A.General Requirements
1. | All Tenant’s Work shall be completed in a good and workmanlike manner and in accordance with the Plans as approved by Landlord, the terms of the General Construction Contract and the budget applicable to such Tenant’s Work. |
2. | Tenant and Tenant’s General Contractor shall provide all insurance required by the Lease, or as is otherwise maintained in the ordinary course by prudent and reputable contractors and/or property owners, prior to the start of any construction work within the Premises. Landlord to be named as Additional Insured and Landlord Mortgagee to be named as Mortgagee in all such insurance. |
3. | Tenant shall, at all times, keep or cause to be kept the Premises and the surrounding area outside of the Premises free from accumulations of waste materials and/or rubbish caused by it or its contractors’ employees or workers. Tenant and/or its contractors shall provide dumpsters and maintenance of said dumpsters during the construction period in a secure, neat and orderly condition and shall remove and empty the same on a regular basis to avoid unsightly, obstructive or hazardous accumulations or conditions. |
▇.▇▇▇▇▇▇▇▇▇▇▇▇ Procedures
1. | When submitting construction Plans (preliminary, completed or final), Tenant or ▇▇▇▇▇▇’s appointed representative shall issue Tenant’s Plans and supporting documents electronically via emails to Landlord’s construction coordinator. |
2. | Once the applicable Plans are approved by Landlord, except for (A) changes required by governmental authorities having jurisdiction over the Premises or (B) interior changes requested by Tenant, and in each case which would not lessen the value of the Premises, Tenant shall not amend, modify or supplement the applicable General Construction Contract in any respect, except pursuant to change orders |
EXHIBIT C TO LEASE AGREEMENT
approved by ▇▇▇▇▇▇▇▇, and shall not attempt to terminate, whether by legal proceedings or otherwise, the applicable General Construction Contract without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed.
3. | Not later than ninety (90) days after the Final Completion of the applicable Tenant’s Work, Tenant shall deliver or cause to be delivered to Landlord (with a copy to Landlord’s consultant) each of the following (1) a certificate addressed to Landlord, signed by a duly authorized officer of Tenant and the applicable Architect or General Contractor (but only if such General Contractor is a design-builder for the applicable Tenant’s Work), stating that the Tenant’s Work (and any equipment therein) including all “punch list” items have been completed and installed in accordance with the applicable Plans therefor; (2) a complete release of liens for the Premises signed by the General Contractor and all subcontractors of the Tenant’s Work and Tenant shall, if a release is not obtainable, in lieu of such release cause such lien to be removed of record by bond or otherwise so that such lienor has no recourse for recovery from or collection out of the Premises; (3) evidence of receipt of a certificate of occupancy, if available, or comparable instruments, by all governmental authorities whose approval is required of the applicable completed Tenant’s Work for the occupancy thereof and the intended uses thereof; (4) if applicable, a volume containing all warranties and indemnities from the applicable General Contractor or manufacturer for the applicable Tenant’s Work or equipment therein (excepting therefrom any of Tenant’s Personal Property), each of which shall be enforceable by Landlord and all in customary form for the jurisdiction in which the Premises is situated; (5) final as-built Plans and, in the event that the Tenant’s Work has modified the footprint of the Building, an as-built ALTA-ACSM Land Title Survey for the Premises indicating the applicable Tenant’s Work thereon, together with a surveyor’s certification in a customary form as reasonably satisfactory to Landlord; and (6) a title commitment dated no earlier than the date that is thirty (30) days after Final Completion and which title commitment shall not disclose any mechanics’ liens affecting the Property, except that with respect to any bona fide dispute with the applicable General Contractor or any such subcontractor that has resulted in a lien, Tenant shall, if a release is not obtainable, in lieu of such release cause such lien to be removed of record by bond or otherwise so that such lienor has no recourse for recovery from or collection out of the Premises. |
4. | Tenant hereby agrees to indemnify, save harmless, pay, protect and defend Landlord from and against any and all liabilities, losses, damages, penalties, costs, expenses (including Landlord’s reasonable counsel fees and costs of suit), causes of action, suits, claims, demands or judgments of any nature whatsoever under this Lease or Landlord’s ownership of the Premises arising from or in connection with (a) any General Construction Contract, if any, and any and all construction contracts or architect’s agreement or resulting from the failure of Tenant to discharge Tenant’s obligations thereunder or resulting from the failure of Tenant to perform its obligations under this Lease with respect to any instance of Tenant’s Work, and (b) construction and completion of Tenant’s Work, whether by reason of any act or omission of Tenant, the General Contractor, Architect or by any other |
EXHIBIT C TO LEASE AGREEMENT
contractor, subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, except to the extent caused by the gross negligence or willful misconduct of Landlord or any Landlord Representatives.
5. | Tenant’s Work shall comply in all respects with applicable Law. |
EXHIBIT C TO LEASE AGREEMENT
EXHIBIT D
TO
LEASE AGREEMENT
FORM ESTOPPEL CERTIFICATE
ESTOPPEL CERTIFICATE
This ESTOPPEL CERTIFICATE (this “Estoppel”) is made as of ______________, by [ ], a [ ] (“Tenant”), based upon the following facts and understandings of Tenant:
RECITALS
▇. | ▇▇▇▇▇▇ is the tenant under that certain Lease Agreement (the “Lease”), dated as of _______________, 20___, between Tenant and [OSREC ENTITY], a Delaware limited liability company, as landlord (“Landlord”) of certain real property commonly known as _______________, and as more particularly described in the Lease (the “Property”). |
B. | Landlord has requested that Tenant provide this Estoppel pursuant to Section 27 of the Lease. |
C. | [IF APPLICABLE] Landlord has agreed to convey the Property to _____________, a ______________ (“Purchaser”). As a condition to Purchaser purchasing the Property, Purchaser has required that Tenant furnish certain assurances to, and make certain agreements with, Purchaser, as set forth below. |
D. | [IF APPLICABLE] [Landlord] [Purchaser], as borrower or as co-borrower with one or more other co-borrower(s), has applied to __________________, a ______________ (together with its successors and assigns, “Lender”) for a loan (“Loan”), which will be secured by, among other things, a mortgage, encumbering the Property. As a condition to making the Loan, ▇▇▇▇▇▇ has required that Tenant furnish certain assurances to, and make certain agreements with, Lender, as set forth below. |
E. | Capitalized terms used but not otherwise defined herein shall have the definitions given such terms pursuant to the terms of the Lease. |
THEREFORE, [as a material inducement to Lender to make the Loan and Purchaser to purchase the Property], Tenant warrants and represents to, and agrees with, Landlord [▇▇▇▇▇▇] and [Purchaser] as follows:
1. | ESTOPPEL. |
Tenant warrants and represents to Landlord [Lender] and [Purchaser], as of the date hereof, that:
EXHIBIT D TO LEASE AGREEMENT
or commitments between Landlord and Tenant relating to the Property, and ▇▇▇▇▇▇ has not given Landlord any notice of termination under the Lease.
1.2 | Possession. Except as set forth in Exhibit B attached hereto and made a part hereof, Tenant is in full and complete possession of the Property and has accepted the Property, including any tenant improvements or other work of Landlord performed thereon pursuant to the terms and provisions of the Lease, and the Property is in compliance with the Lease. There are no contributions, credits, free rent, rent abatements, deductions, concessions, rebates, unpaid or unreimbursed construction allowances, offsets or other sums due to Tenant from Landlord under the Lease, except __________________________________________________. |
1.3 | Base Rent. The current monthly Base Rent under the Lease is $__________, subject to any escalation and/or Additional Rent charges provided in the Lease, and such Base Rent is current as of the date hereof. |
1.4 | Additional Rent. The current monthly Additional Rent payable to Landlord under the Lease is $__________, and such Additional Rent is current within thirty (30) days as of the date hereof. |
1.5 | Rental Payment Commencement Date. The Base Rent stated in Section 1.3 above began on _______________, 20___. |
1.6 | Rentable Area. The rentable area of the Building located upon the Premises is __________ square feet. |
1.7 | Commencement Date. The Term of the Lease commenced on _______________, 20___. |
1.8 | Expiration Date. The Term of the Lease will expire on _______________ (unless sooner terminated or extended in accordance with the Lease). |
1.9 | Options to Renew or Extend. Tenant has no option to renew or extend the Term of the Lease, except as follows: ____________________ (if none, write “None”). |
1.10 | No Default. There exists no breach, default, or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Agreements by Tenant or, to Tenant’s actual knowledge, Landlord, except as follows: __________________(if none, write “None”). Tenant has no existing claims, defenses or offsets against Rent due or to become due under the Lease, except as follows: __________________(if none, write “None”). |
1.11 | Entire Agreement. The Agreements constitute the entire agreement between Landlord and Tenant with respect to the Property, and ▇▇▇▇▇▇ claims no rights of any kind whatsoever with respect to the Property, other than as set forth in the Lease, except as follows: __________________(if none, write “None”). |
EXHIBIT D TO LEASE AGREEMENT
1.12 | No Deposits or Prepaid Rent. No deposits, including security deposits, or prepayments of Rent have been made in connection with the Lease. None of the Rent has been paid more than one (1) month in advance. |
1.13 | No Purchase Option or Preferential Right to Purchase. Except as set forth in Section 47 of the Lease, Tenant does not have any option or preferential right to purchase all or any part of the Property. |
1.14 | Authority. The undersigned representatives of Tenant are each duly authorized and fully qualified to execute this instrument on behalf of Tenant thereby binding Tenant. |
1.15 | Financial Condition; Bankruptcy. There are no voluntary or involuntary actions pending against Tenant under the bankruptcy laws of the United States or any state thereof. |
2.HEIRS, SUCCESSORS AND ASSIGNS. The covenants herein shall be binding upon, and inure to the benefit of, the heirs, successors and assigns of the parties hereto. Whenever necessary or appropriate to give logical meaning to a provision of this Estoppel, the term “Landlord” shall be deemed to mean the then current owner of the Property and the landlord’s interest in the Lease.
[Signature Page to Follow]
EXHIBIT D TO LEASE AGREEMENT
IN WITNESS WHEREOF, ▇▇▇▇▇▇ has executed this instrument as of the date first listed above.
TENANT:
[____________________________],
a [___________________________]
EXHIBIT D TO LEASE AGREEMENT
EXHIBIT A
TO ESTOPPEL CERTIFICATE
LEASE AND AMENDMENTS (IF ANY)
[Attached]
EXHIBIT D TO LEASE AGREEMENT
EXHIBIT B
TO ESTOPPEL CERTIFICATE
SUBLEASES (IF ANY)
[Attached]
EXHIBIT D TO LEASE AGREEMENT
EXHIBIT E
TO
LEASE AGREEMENT
FORM OF MEMORANDUM OF LEASE
[TO BE UPDATED WITH STATE SPECIFIC REQUIREMENTS]
PREPARED BY AND AFTER
RECORDING RETURN TO:
Citi Trends, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
TMS No. ▇▇▇-▇▇-▇▇-▇▇▇
MEMORANDUM OF LEASE AGREEMENT
THIS MEMORANDUM OF LEASE AGREEMENT (this “Memorandum”) is made as of this ____ day of _________, 2022 (the “Effective Date”), by and between CTROOK002 LLC, a Delaware limited liability company (“Landlord”), having an address of c/o Oak Street Real Estate Capital, LLC, ▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and CITI TRENDS, INC., a Delaware corporation (“Tenant”), having an address of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.Memorandum of Lease of Premises. This Memorandum is recorded in connection with, and as evidence of, that certain Lease Agreement (the “Lease”) dated as of _________, 2022, as may be amended from time to time, by and between Landlord and Tenant for that certain real property and the improvements thereon described on Exhibit A attached hereto and made a part hereof (the “Premises”). The Lease is incorporated by reference into this Memorandum. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Lease.
▇.▇▇▇▇▇ Term and Certain Other Provisions. The initial Term of the Lease commenced on the Effective Date of this Memorandum and expires on _________, 2037. Tenant has six (6) options to extend the initial Term of the Lease pursuant to the applicable provisions thereof for an additional term of five (5) years each.
3.Purpose of Memorandum; Conflicting Provisions. The purpose of this Memorandum is to make the Lease a matter of public record. If a provision of this Memorandum conflicts with a provision in the Lease, the provision in the Lease will control.
4.Counterparts. This Memorandum may be executed in multiple counterparts, each of which shall be deemed an original instrument, and all of which, taken together, shall constitute one and the same instrument. The signature of a party hereto to any counterpart hereof shall be deemed a signature to, and may be appended to, any other counterpart hereof.
5.Termination. Upon expiration or termination of the Lease, ▇▇▇▇▇▇ agrees to execute any and all documents required to discharge this Memorandum.
EXHIBIT E TO LEASE AGREEMENT
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have duly executed this Memorandum of Lease Agreement as of the day and year first above written.
LANDLORD
Signed, sealed and delivered
In the presence of:
CTROOK002 LLC,
a Delaware limited liability company
_________________________________
Witness
Print Name: _______________________By: _______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its Authorized Representative
_________________________________
Witness
Print Name: _______________________
STATE OF _________________)
)
COUNTY OF ________________ )
I, the undersigned Notary Public, do hereby certify that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Authorized Representative of CTROOK002 LLC, a Delaware limited liability company, appeared before me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and seal this ___ day of _________, 2022.
_____________________________________
Notary Public for the State of _____________
My commission expires: __________
[NOTARY SEAL]
[Signatures Continue on Following Page]
EXHIBIT E TO LEASE AGREEMENT
TENANT
Signed, sealed and delivered
in the presence of:
CITI TRENDS, INC., a Delaware corporation
_________________________________
Witness
Print Name: _______________________By: _______________________________
Name: _________________________
Title: __________________________
_________________________________
Witness
Print Name: _______________________
STATE OF GEORGIA )
)
COUNTY OF CHATHAM )
I, the undersigned Notary Public, do hereby certify that __________________________, as ___________________________ of Citi Trends, Inc., a Delaware corporation, appeared before me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and seal this ___ day of , 2022.
_________________________________________
Notary Public for the State of Georgia
My commission expires: ____________
[NOTARY SEAL]
EXHIBIT E TO LEASE AGREEMENT
EXHIBIT A
Legal Description of Premises
TRACT 1:
THE NW ¼ OF THE SW ¼ OF SECTION 23, TOWNSHIP 11 NORTH, RANGE 26 EAST, SEQUOYAH COUNTY, OKLAHOMA, BENG MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AN EXISTING MONUMENT MARKING THE NW CORNER OF NW ¼ OF THE SW ¼; THENCE ALONG THE NORTH LINE OF SAID FORTY, S 89° 31' 36" E, 1,324.43 FEET TO AN EXISTING MONUMENT MARKING THE NE CORNER OF THE NW ¼ OF THE SW ¼; THENCE ALONG EAST LINE OF SAID FORTY, S 00° 00' 40" W, 1,323.17 FEET TO AN EXISTING MONUMENT MARKING THE SE CORNER OF THE NW ¼ OF THE SW ¼; THENCE ALONG THE SOUTH OF SAID FORTY, N 89° 33' 07" W, 1,324.16 FEET TO AN "X" IN CONCRETE MARKING SW CORNER OF THE NW ¼ OF THE SW ¼; THENCE ALONG THE WEST LINE OF SAID FORTY, NORTH 1,323.76 FEET TO THE POINT OF BEGINNING.
TRACT 2:
A private, non-exclusive roadway easement created by that certain Easement Agreement dated September _____, 2022 by and between Citi Trends, Inc., a Delaware corporation, and CTROOK002, LLC, a Delaware limited liability company, recorded ___________, 2022 in Book __________, Page __________.
EXHIBIT E TO LEASE AGREEMENT
EXHIBIT F
TO
LEASE AGREEMENT
FORM OF SNDA
WHEN RECORDED RETURN TO:
Akerman LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Space above this line for recorder’s use only
SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) made this ____ day of ___________, 2022, by and among TEXAS CAPITAL BANK, a Texas state bank, as administrative agent (in such capacity together with its successors and assigns, “Administrative Agent”) for itself and such other lenders as may exist from time to time (the “Lenders”), CITI TRENDS, INC., a Delaware corporation (“Tenant”), CTROOK002 LLC, a Delaware limited liability company (“Borrower”).
WHEREAS, Administrative Agent is the owner and holder of (i) a certain deed of trust or mortgage (as the same may have been or may be from time to time renewed, extended, amended or supplemented, the “Security Instrument”), dated _________________, recorded or to be recorded in the real property records of Sequoyah County, Oklahoma, covering the real property described in Exhibit A and the buildings and improvements thereon (the “Property”) securing the payment of the promissory note or promissory notes referenced therein and evidencing that certain loan (the “Loan”) from the Lenders to Borrower.
WHEREAS, ▇▇▇▇▇▇ and Borrower have entered into a certain [Lease Agreement] dated _________________, 2022, by and between Borrower, as lessor, and Tenant, as lessee, covering certain property (the “Leased Premises”) consisting of the Property (as amended, restated, supplemented or modified from time to time, the “Lease”).
WHEREAS, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and Administrative Agent desire to confirm their understanding with respect to the Lease and the Security Instrument.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, Administrative Agent, Borrower and Tenant hereby agree and covenant as follows:
1
EXHIBIT F TO LEASE AGREEMENT
2
EXHIBIT F TO LEASE AGREEMENT
3
EXHIBIT F TO LEASE AGREEMENT
The person or entity to whom Tenant attorns shall be liable to Tenant under the Lease only for matters arising during such person’s or entity’s period of ownership, except to the extent set forth in Section 5(a).
4
EXHIBIT F TO LEASE AGREEMENT
5
EXHIBIT F TO LEASE AGREEMENT
To Administrative Agent: | Texas Capital Bank |
To Tenant:Citi Trends, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Dept.
To Borrower:
Attention:
or to such other address or to the attention of such other person as hereafter shall be designated in writing by the applicable party sent in accordance herewith. Any such notice or communication shall be deemed to have been given and received either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
6
EXHIBIT F TO LEASE AGREEMENT
ADMINISTRATIVE AGENT, ▇▇▇▇▇▇▇▇ AND TENANT HEREBY AGREE THAT ANY LAWSUIT, ACTION, OR PROCEEDING THAT IS BROUGHT (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
7
EXHIBIT F TO LEASE AGREEMENT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN THE COUNTY AND STATE WHERE THE LEASED PREMISES IS LOCATED. BORROWER AND TENANT HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, (B) WAIVES ANY OBJECTION IT/THEY MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH LAWSUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND (C) FURTHER WAIVES ANY CLAIM THAT IT/THEY MAY NOW OR HEREAFTER HAVE THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREE THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED AT THE ADDRESS FOR NOTICES REFERENCED IN SECTION 16 HEREOF.
[Remainder of Page Intentionally Left Blank - Signature Pages Follow]
8
EXHIBIT F TO LEASE AGREEMENT
ADMINISTRATIVE AGENT:
TEXAS CAPITAL BANK, a Texas state bank
By:
Name:
Title:
STATE OF §
§
COUNTY OF ___________§
The foregoing instrument was acknowledged before me this ____ day of _________________, 2022, by ______________________________________________, the ___________________________ of TEXAS CAPITAL BANK, a Texas state bank, on behalf of said entity, who is personally known to me or who has produced ________________________ as identification, and did take an oath.
Notary Public for the State of Texas
Printed Name:
My Commission Expires:
TENANT:
CITI TRENDS, INC., a Delaware corporation
By:
Name:
Title:
STATE OF _________§
§
COUNTY OF _________§
The foregoing instrument was acknowledged before me this ____ day of _________________, 20___, by ______________________________________________, the ___________________________ of CITI TRENDS, INC., a Delaware corporation, on behalf of said entity, who is personally known to me or who has produced ________________________ as identification, and did take an oath.
Notary Public for the State of
Printed Name:
My Commission Expires:
BORROWER:
CTROOK002 LLC, a Delaware limited liability company
By:
Name:
Title:
STATE OF _________§
§
COUNTY OF _________§
The foregoing instrument was acknowledged before me this ____ day of _________________, 2022, by ______________________________________________, the ___________________________ of CTROOK002 LLC, a Delaware limited liability company, on behalf of said entity, who is personally known to me or who has produced ________________________ as identification, and did take an oath.
Notary Public for the State of
Printed Name:
My Commission Expires:
EXHIBIT A
Property
[TO BE ADDED]
EXHIBIT F TO LEASE AGREEMENT
EXHIBIT G
TO
LEASE AGREEMENT
PRIOR ENVIRONMENTAL REPORTS
| 1. | Phase 1 Environmental Site Assessment, EBI Consulting, dated March 7, 2022 |
| 2. | All Appropriate Inquiry, Pinnacle Environmental, dated April 29, 2010 |
EXHIBIT G TO LEASE AGREEMENT
EXHIBIT H
TO
LEASE AGREEMENT
IMMEDIATE REPAIRS
Property | Item | Total Cost |
▇▇▇▇▇▇, OK |
|
|
| ADA Compliance - provide additional handicapped-accessible parking spaces to bring property into compliance | $400 |
| ADA Compliance - provide additional van-accessible parking spaces (1 of every 6 handicapped-accessible spaces) to bring property into compliance. | $500 |
| Paving repairs at localized deteriorated areas | $9,750 |
| Investigate and repair roof leaks | $6,000 |
EXHIBIT H TO LEASE AGREEMENT