Exhibit 10.47
LAND AND BUILDING LEASE AGREEMENT
---------------------------------
JULY 19, 2001
LANDLORD:
--------
REALTY INCOME CORPORATION,
A MARYLAND CORPORATION
DOING BUSINESS IN FLORIDA AS
REALTY INCOME PROPERTIES, INC.
TENANT:
------
X-XXXXX.XXX, INC.,
A DELAWARE CORPORATION
PREMISES LOCATION:
-----------------
0000 XXXX XXXXXXXXX XXXXXXXXX
XXXXXXXXX XXXXX, XX 00000
LAND AND BUILDING LEASE AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS.............................................................................................. 1
1.1 Lease Year.................................................................................. 1
1.2 Hazardous Material.......................................................................... 1
1.3 Environmental Law........................................................................... 2
2. PREMISES................................................................................................. 2
3. TERM..................................................................................................... 2
3.1 Primary Term................................................................................ 2
3.2 Option to Extend............................................................................ 2
3.3 Surrender of Premises; Holding Over......................................................... 3
4. BASE MONTHLY RENT........................................................................................ 3
4.1 Net-Net-Net Lease........................................................................... 3
4.2 Base Monthly Rent........................................................................... 3
5. ADDITIONAL RENT.......................................................................................... 3
5.1 Consumer Price Index Rental Increase........................................................ 3
6. SUBSTITUTE RENT AND INCREASES............................................................................ 4
7. SECURITY DEPOSIT......................................................................................... 4
8. USE OF THE PREMISES...................................................................................... 5
9. PROPERTY TAXES, OTHER CHARGES, ASSESSMENTS AND UTILITIES................................................. 5
9.1 Tenant's Required Payments.................................................................. 5
9.2 Payments Not Required by Tenant............................................................. 6
9.3 Assessments................................................................................. 6
9.4 Utility Payments............................................................................ 6
9.5 Tenant's Right to Contest Utility Charges, Contest Taxes and Seek Reduction of Assessed
Valuation of the Premises................................................................... 6
9.6 Landlord Not Required to Join in Proceedings or Contest Brought by Tenant................... 7
9.7 Tax Period and Adjustment of Taxes.......................................................... 7
9.8 Default By Tenant........................................................................... 7
10. FURNITURE, FIXTURES AND EQUIPMENT........................................................................ 8
10.1 Furniture, Fixtures, and Equipment.......................................................... 8
10.2 Security Interest........................................................................... 8
10.3 Subordination............................................................................... 8
10.4 Removal of Furniture, Fixtures, and Equipment at Expiration of Lease........................ 9
10.5 Right to Affix Signs........................................................................ 9
11. MAINTENANCE OF THE PREMISES.............................................................................. 9
11.1 Obligation to Maintain the Premises......................................................... 9
11.2 Major Repair or Replacement................................................................. 9
11.3 Obligation to Keep the Premises Clear...................................................... 10
12. REPAIRS AND ALTERATIONS................................................................................. 10
12.1 Right to Make Alterations.................................................................. 10
12.2 Tenant Shall Not Render Premises Liable For Any Lien....................................... 10
13. INDEMNITY AND INSURANCE................................................................................. 11
(i)
13.1 Indemnification............................................................................ 11
13.2 Insurance Company Requirement.............................................................. 11
13.3 Insurance Certificate Requirements......................................................... 12
13.4 Minimum Acceptable Insurance Coverage Requirements......................................... 12
13.5 Additional Insureds........................................................................ 13
13.6 Mortgage Endorsement....................................................................... 13
13.7 Renewals, Lapses or Deficiencies........................................................... 14
13.8 Waiver of Subrogation...................................................................... 14
14. PARTIAL AND TOTAL DESTRUCTION OF THE PREMISES........................................................... 14
14.1 Damage or Destruction...................................................................... 14
14.2 Tenant's Right to Terminate................................................................ 14
15. CONDEMNATION............................................................................................ 15
15.1 Condemnation Damages....................................................................... 15
15.2 Termination of Lease Due to Condemnation................................................... 15
16. ASSIGNMENT AND SUBLETTING............................................................................... 15
16.1 Tenant's Right of Assignment and Subletting................................................ 15
16.2 Landlord's Option to Preserve Subtenancies................................................. 16
16.3 Tenant's Assignment of All Rent from Subletting as Security for Tenant's Obligations....... 16
16.4 Continuing Obligation of Tenant............................................................ 16
16.5 Fees and Costs with Regard to Proposed Assignment or Sublease.............................. 16
16.6 Landlord's Right of Assignment............................................................. 16
17. DEFAULT AND TERMINATION................................................................................. 17
17.1 Event of Default........................................................................... 17
17.2 Landlord's Remedies........................................................................ 18
17.3 Late Charge................................................................................ 20
17.4 Right of Landlord to Re-Enter.............................................................. 20
17.5 Surrender of Premises...................................................................... 21
17.6 Interest Charges........................................................................... 21
17.7 Tenant's Default........................................................................... 21
17.8 Default by Landlord........................................................................ 21
18. RIGHT OF INSPECTION..................................................................................... 22
19. WAIVER OF BREACH........................................................................................ 22
20. NOTICES................................................................................................. 22
20.1 Notice Requirements........................................................................ 22
20.2 Payments Under Lease....................................................................... 23
21. RELATIONSHIP OF THE PARTIES............................................................................. 23
22. SUBORDINATION, ATTORNMENT AND ESTOPPEL.................................................................. 23
22.1 Subordination and Non-Disturbance.......................................................... 23
22.2 Attornment................................................................................. 24
22.3 Estoppel Certificate....................................................................... 24
23. TENANT'S FINANCIAL STATEMENTS........................................................................... 24
24. ATTORNEYS' FEES......................................................................................... 25
24.1 Recovery of Attorneys' Fees and Costs of Suit.............................................. 25
24.2 Party to Litigation........................................................................ 25
25. CONSENT................................................................................................. 25
(ii)
26. AUTHORITY TO MAKE LEASE; COVENANT OF QUIET ENJOYMENT.................................................... 25
26.1 Full Power and Authority to Enter Lease.................................................... 25
26.2 Quiet Enjoyment............................................................................ 25
26.3 No Violation of Covenants and Restrictions................................................. 26
27. HAZARDOUS MATERIAL...................................................................................... 26
27.1 Environmental Compliance................................................................... 26
27.2 Survival................................................................................... 26
28. GENERAL PROVISIONS...................................................................................... 27
28.1 Gender; Number............................................................................. 27
28.2 Captions................................................................................... 27
28.3 Exhibits................................................................................... 27
28.4 Entire Agreement........................................................................... 27
28.5 Drafting................................................................................... 27
28.6 Modification............................................................................... 27
28.7 Joint and Several Liability................................................................ 27
28.8 Governing Law.............................................................................. 27
28.9 Attorneys' Fees............................................................................ 27
28.10 Time of Essence............................................................................ 28
28.11 Severability............................................................................... 28
28.12 Successors and Assigns..................................................................... 28
28.13 Independent Covenants...................................................................... 28
28.14 Information Provided....................................................................... 28
28.15 Limitation of Landlord's Liability......................................................... 28
28.16 No Lease Until Accepted.................................................................... 28
28.17 Counterparts............................................................................... 29
Exhibit "A" - Legal Description of Real Property
Exhibit "B" - Memorandum of Lease
(iii)
LAND AND BUILDING LEASE AGREEMENT
This Land and Building Lease Agreement (this "Lease"), dated for
reference purposes only as of July 19, 2001, is made by and between REALTY
INCOME CORPORATION, a Maryland corporation doing business in Florida as Realty
Income Properties, Inc. ("Landlord"), and X-XXXXX.XXX, INC. a Delaware
corporation ("Tenant"), with reference to the recitals set forth below.
RECITALS
A. Landlord is the owner of that certain real property, together
with all the improvements thereon and appurtenances thereunto belonging (the
"Premises"), the legal description of which is attached hereto and incorporated
herein as Exhibit "A," commonly known as:
0000 XXXX XXXXXXXXX XXXXXXXXX
XXXXXXXXX XXXXX, XX 00000
B. Landlord desires to lease the Premises to Tenant, and Tenant
desires to lease the Premises from Landlord pursuant to the provisions of this
Lease.
1. DEFINITIONS
The following terms, when used in this Lease, shall have the
meaning set forth in this Section.
1.1 Lease Year
----------
The term "Lease Year" shall mean the first twelve (12) full
calendar months after the Rent Commencement Date (as defined in Section 4.2) and
each subsequent twelve (12) month period thereafter during the term and any
extensions. If the Rent Commencement Date is other than the first day of the
month, then the first Lease Year also will include the partial month in which
the Rent Commencement Date occurs.
1.2 Hazardous Material
------------------
The term "Hazardous Material" means any substance, material, or
waste which is toxic, ignitable, reactive, or corrosive and which is or becomes
regulated by the local or state governmental authority or the United States
Government. The term "Hazardous Material" includes, without limitation, any
material or substance which is (i) defined as a "hazardous waste," "extremely
hazardous waste," "restricted hazardous waste," "hazardous substance," or
"hazardous material," by any local or state law, (ii) oil and petroleum products
and their by-products, (iii) asbestos, or asbestos-containing materials, (iv)
designated as a "hazardous substance" pursuant to the Federal Water Pollution
Control Act, (v) defined as a "hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, or (vi) defined as a "hazardous substance"
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act.
1.3 Environmental Law
-----------------
The term "Environmental Law" shall mean any law, statute, regulation,
order, or rule now or hereafter promulgated by any governmental entity, whether
local, state, or federal, relating to air pollution, water pollution, noise
control, and/or transporting, storing, handling, discharge of or disposal of
Hazardous Material, including, without limitation, the following: the Clean Air
Act; the Resource Conservation and Recovery Act, as amended by the Hazardous
Waste and Solid Waste Amendments of 1984; the Comprehensive Environmental
Response Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986; the Toxic Substances Control Act; the Federal
Insecticide, Fungicide and Rodenticide Act, as amended; the Safe Drinking Water
Act; OSHA; the Hazardous Liquid Pipeline Safety Act; the Hazardous Materials
Transportation Act; and the National Environmental Policy Act, as the same may
be amended from time to time.
2. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord the Premises
in its "AS IS, WHERE IS, WITH ALL FAULTS" condition with no representations or
warranties whatsoever and on the terms and conditions set forth in this Lease.
By affixing its initials below, Tenant acknowledges and agrees that: (i) no
representations have been or are made, or responsibility assumed by Landlord,
with respect to the Premises or its operation, or the condition or repair of the
Premises, or as to any fact, circumstance, thing or condition which may effect
or relate to the Premises, except as specifically set forth in this Lease; (ii)
the Premises is leased in its "AS IS, WHERE IS, WITH ALL FAULTS" condition as of
the Commencement Date; and (iii) other than as specifically set forth in this
Lease, Landlord shall have no obligation to alter, restore, improve, repair, or
develop the Premises, and further shall have no obligation to remove therefrom
any items of personal property, or other trade fixtures or equipment which may
be upon the Premises.
RTH
-------------------------------------
Tenant's Initials
3. TERM
3.1 Primary Term
------------
The effective date (the "Commencement Date") of this Lease shall be
the date upon which this Lease is last executed by Landlord or Tenant. On or
after the Commencement Date, a Memorandum of Lease, a copy of which is attached
hereto and incorporated herein as Exhibit "B," shall be recorded by Tenant. The
expiration date of the primary term (the "Primary Term") shall be last day of
the month FIVE (5) YEARS following the Rent Commencement Date, unless extended
as set forth in Section 3.2. References to the term of the Lease shall include
extensions, if any. Except as otherwise expressly stated, the terms and
conditions of this Lease shall remain in effect during any extension, renewal,
or holdover of the Primary Term.
3.2 Option to Extend
----------------
On or before two hundred seventy (270) days prior to the expiration of
the Primary Term, providing Tenant (i) is occupying the Premises; (ii) is not in
default of this Lease; Tenant may extend the term of this Lease for an
additional SIXTY (60) MONTHS by notifying
Landlord of such intention in writing (the "Extension Period"). The maximum term
of the Lease with one extension is TEN (10) YEARS.
3.3 Surrender of Premises; Holding Over
-----------------------------------
On the last day or sooner termination of the term of this Lease, Tenant
shall quit and surrender the Premises, together with all alterations, vacant and
free of all tenancies and any leasehold rights therein and in good condition and
repair, normal wear and tear excepted, broom clean and free of violations, and
shall surrender all keys for the Premises to Landlord at the place then fixed
for the payment of rent and shall inform Landlord of all combinations of locks,
safes, and vaults, if any, in the Premises. If Tenant does not do so, then after
expiration of this Lease, it will be a tenant at will upon the applicable
conditions of this Lease. In such event the rent payable shall be increased by
fifty percent (50%) over the rent payable during the last full month of the term
of this Lease that just ended. If the Premises is not surrendered as and when
aforesaid, Tenant shall indemnify Landlord from and against loss or liability
resulting from the delay by Tenant in so surrendering the Premises, including
without limitation, any claims made by any succeeding occupant or purchaser
founded on such delay. Tenant's obligations under this Section shall survive the
expiration or earlier termination of this Lease.
4. BASE MONTHLY RENT
4.1 Net-Net-Net Lease
-----------------
This is a net-net-net lease. It is the intention of Landlord and
Tenant that the Base Monthly Rent (as defined below) and other sums and charges
provided herein shall be absolutely net to Landlord. Except as otherwise
specifically set forth in this Lease, Tenant shall pay, as additional rent, all
costs, charges, obligations, assessments, and expenses of every kind and nature
against or relating to the Premises or the use, occupancy, area, possession,
leasing, operation, management, maintenance, or repair thereof, which may arise
or become due during the term hereof, whether or not now customary or within the
contemplation of the parties hereto.
4.2 Base Monthly Rent
-----------------
Tenant shall pay to Landlord as base monthly rent ("Base Monthly
Rent") the sum of TEN THOUSAND ONE HUNDRED EIGHTY-FIVE DOLLARS ($10,185). Base
Monthly Rent shall be payable by Tenant to Landlord in advance in equal monthly
installments commencing on the sixtieth (60th) day following the Commencement
Date and on the first day of each calendar month thereafter, without prior
notice, invoice, demand, deduction, or offset whatsoever. Landlord shall have
the right to accept all rent and other payments, whether full or partial, and to
negotiate checks and payments thereof without any waiver of rights, irrespective
of any conditions to the contrary sought to be imposed by Tenant. All rent shall
be paid to Landlord at the address to which notices to Landlord are given. Base
Monthly Rent for any partial month shall be prorated based upon a thirty (30)
day month.
5. ADDITIONAL RENT
5.1 Consumer Price Index Rental Increase
------------------------------------
The capitalized terms used herein are defined below. Effective on each
Adjustment Date, Base Monthly Rent shall be increased by five (5) times the
increases in the CPI, with the
increases to be calculated as follows: (i) subtract one point zero (1.0) from a
fraction, the numerator of which shall be the Variable Index, and the
denominator of which shall be the Base Index; and (ii) multiply the result
obtained in (i) above by five (5); then (iii) multiply the result obtained in
(ii) above by the Initial Base Monthly Rent. Notwithstanding the foregoing, in
no event shall the increase in Base Monthly Rent exceed three percent (3%), nor
shall the new Base Monthly Rent be less than the previous Base Monthly Rent.
The new Base Monthly Rent shall be payable in advance in consecutive
monthly installments on the first day of each month until the next Adjustment
Date, or the expiration of the term, as the case may be. Landlord's delay or the
failure of Landlord, beyond commencement of any Adjustment Date, in computing or
billing for these adjustments will not impair the continuing obligation of
Tenant to pay the rent adjustments. In applying the foregoing formula for Base
Monthly Rent adjustments, the following terms shall have the following meaning:
5.1.1 "Adjustment Date" shall mean, as the case may require, each
anniversary of the Rent Commencement Date; provided,
however, if the Rent Commencement Date is other than the
first day of the month, then "Adjustment Date" shall mean,
as the case may require, the first day of the first month
occurring after each anniversary of the Rent Commencement
Date.
5.1.2 "Base Index" shall mean the CPI for the first month of the
first Lease Year.
5.1.3 "CPI" shall mean the Consumer Price Index for All Urban
Consumers, All Items, U.S.A. Area, 1982-1984 = 100, as
published by the Bureau of Labor Statistics, United States
Department of Labor (U.S. City Average). If such index is
discontinued, CPI shall then mean the most nearly comparable
index published by the Bureau of Labor Statistics or other
official agency of the United States Government as
determined by Landlord.
5.1.4 "Initial Base Monthly Rent" shall mean the Base Monthly Rent
payable by Tenant for the first full calendar month of the
first Lease Year.
5.1.5 "Variable Index" shall mean the CPI for the month in which
the Adjustment Date occurs.
6. SUBSTITUTE RENT AND INCREASES
This Section was left blank intentionally.
7. SECURITY DEPOSIT
Tenant shall, prior to the Commencement Date, deposit with Landlord,
the sum of TWENTY THOUSAND THREE HUNDRED SEVENTY DOLLARS ($20,370) (the
"Security Deposit"), as a Security Deposit to secure the faithful performance by
Tenant of all the terms, covenants, and conditions of this Lease. Landlord may
use the Security Deposit or any portion
thereof to cure a default by Tenant or to compensate Landlord for all damages
sustained by Landlord resulting from the default. Tenant shall, within five (5)
days of demand, pay to Landlord a sum equal to the portion of the Security
Deposit expended or applied by Landlord so as to maintain the Security Deposit
in the sum initially deposited with Landlord. Any interest earned on the
Security Deposit shall accrue to the benefit of Landlord. Landlord shall not be
required to keep this Security Deposit separate from its general funds. The
Security Deposit shall not be mortgaged, assigned, transferred, or encumbered by
Tenant without the prior written consent of Landlord and any such act on the
part of Tenant shall be without force and effect and shall not be binding upon
Landlord. Tenant shall have no right to have the Security Deposit applied to the
last month's or any other rent payable by Tenant hereunder. Landlord shall
return the Security Deposit to Tenant within sixty (60) days of the expiration
or termination of the Lease, subject to the terms hereof.
8. USE OF THE PREMISES
Tenant shall use the Premises only for Tenant's corporate offices and
no other uses without the prior written consent of Landlord which consent may be
withheld in its sole and absolute discretion. Tenant has satisfied itself, and
represents to Landlord, that such use is lawful and conforms to all applicable
zoning and other use restrictions and regulations applicable to the Premises.
Tenant shall, at Tenant's expense, comply promptly with all applicable statutes,
ordinances, rules, regulations, orders, covenants and restrictions of record,
and requirements in effect during the term or any part of the term hereof,
regulating the use by Tenant of the Premises, including, without limitation, the
obligation at Tenant's cost, to alter, maintain, or restore the Premises in
compliance and conformity with all laws relating to the condition, use, or
occupancy of the Premises during the term (including any and all requirements as
set forth in the Americans with Disabilities Act) and regardless of (i) whether
such laws require structural or non-structural improvements, (ii) whether the
improvements were foreseen or unforeseen, and (iii) the period of time remaining
in the term. Tenant shall not perform any acts or carry on any practices, which
may injure the Premises, except as expressed in this Lease.
9. PROPERTY TAXES, OTHER CHARGES, ASSESSMENTS AND UTILITIES
9.1 Tenant's Required Payments
--------------------------
Tenant shall (i) pay at least fifteen (15) days before delinquency and
as additional rent, all Property Taxes and Other Charges (as such terms are
defined herein) that accrue during or are otherwise allocable to the term of
this Lease; and (ii) concurrently provide Landlord with evidence of payment
thereof. Property taxes and Other Charges together are referred to herein as
"Taxes."
9.1.1 "Property Taxes" shall mean all taxes, assessments, excises,
levies, fees, and charges (and any tax, assessment, excise,
levy, fee, or charge levied wholly or partly in lieu thereof
or as a substitute therefor or as an addition thereto) of
every kind and description, general or special, ordinary or
extraordinary, foreseen or unforeseen, secured or unsecured,
whether or not now customary or within the contemplation of
Landlord and Tenant, that are levied, assessed, charged,
confirmed, or imposed on or against, or otherwise with
respect to, the Premises or any part thereof or any personal
property on or in the Premises. It is
the intention of Landlord and Tenant that all new and
increased taxes, assessments, levies, fees, and levies,
fees, and charges be included within the definition of
Property Taxes for the purpose of this Lease.
9.1.2 "Other Charges" shall mean all taxes, assessments, excises,
levies, fees, and charges (including, without limitation,
common area maintenance charges, charges relating to the
cost of providing facilities or services, and charges
relating to documents or instruments of record effecting or
encumbering the Premises), whether or not now customary or
within the contemplation of Landlord and Tenant, that are
levied, assessed, charged, confirmed, or imposed upon, or
measured by, or reasonably attributable to (a) the Premises;
(b) the cost or value of Tenant's furniture, fixtures,
equipment, or personal property located in the Premises or
the cost or value of any leasehold improvements made in or
to the Premises by or for Tenant, regardless of whether
title to such improvements is vested in Tenant or Landlord;
(c) Base Monthly Rent and additional rent payable under the
Lease , including, if applicable, Property Taxes, Other
Charges, insurance, maintenance, and other costs incurred by
Tenant by which Landlord may benefit, including, without
limitation, any gross income tax or excise tax levied by any
public or government authority with respect to the receipt
of any such rents and costs; (d) the possession, leasing,
operation, management, maintenance, alteration, repair, use,
or occupancy by Tenant of the Premises; and (e) this
transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the
Premises.
9.2 Payments Not Required by Tenant
-------------------------------
Tenant shall not be required to pay any state or federal income or
franchise taxes of Landlord, or any state or federal estate, succession,
inheritance, or transfer taxes of Landlord.
9.3 Assessments
-----------
If any assessment for a capital improvement made by a public or
governmental authority shall be levied or assessed against the Premises, and the
assessment is payable either in a lump sum or on an installment basis, then
Tenant shall have the right to elect the basis of payment; provided however,
throughout the entire term of this Lease, Tenant shall pay all assessments that
accrue during or are otherwise allocable to the term of this Lease
9.4 Utility Payments
----------------
Tenant shall promptly pay when due all charges for water, gas,
electricity, and all other utilities furnished to or used upon the Premises,
including all charges for installation, termination, and relocations of such
service. Landlord, at its option, may require Tenant to furnish Landlord with
evidence of payment of such charges.
9.5 Tenant's Right to Contest Utility Charges, Contest Taxes and Seek
-----------------------------------------------------------------
Reduction of Assessed Valuation of the Premises
-----------------------------------------------
Tenant, at Tenant's sole cost and expense, shall have the right, at
any time, to seek a reduction in the assessed valuation of the Premises or to
contest any taxes or utility charges that
are to be paid by Tenant; provided however, Tenant shall (i) give Landlord
written notice of any such intention to contest at least thirty (30) days before
any delinquency could occur; (ii) indemnify and hold Landlord harmless from all
liability on account of such contest; (iii) take such action as is necessary to
remove the effect of any lien which attached to the Premises or the improvements
thereon due to such contest, or in lieu thereof, at Landlord's election, furnish
Landlord with adequate security for the amount of the Taxes due plus interest
and penalties; and (iv) in the event of a final determination adverse to Tenant,
prior to enforcement, foreclosure or sale, pay the amount involved together with
all penalties, fines, interest, costs, and expenses which may have accrued.
Tenant may use any means allowed by statute to protest Taxes or utility charges
as defined in this Section 9 as long as Tenant remains current as to all other
terms and conditions of this Lease. If Tenant seeks a reduction or contests any
Taxes or utility charges, the failure on Tenant's part to pay the Taxes or
utility charges shall not constitute a default as long as Tenant complies with
the provisions of this Section.
9.6 Landlord Not Required to Join in Proceedings or Contest Brought by
------------------------------------------------------------------
Tenant
------
Landlord shall not be required to join in any proceeding or contest
brought by Tenant unless the provisions of the law require that the proceeding
or contest be brought by or in the name of Landlord or the owner of the
Premises. In that case, Landlord shall join in the proceeding or contest or
permit it to be brought in Landlord's name as long as Landlord is not required
to bear any cost. Tenant, on final determination of the proceeding or contest,
shall immediately pay or discharge any decision or judgment rendered, together
with all costs, charges, interest, and penalties incidental to the decision or
judgment.
9.7 Tax Period and Adjustment of Taxes
----------------------------------
For the purpose of this Lease, the calculation of Taxes payable by
Tenant for any particular Lease Year shall be based upon the Taxes actually due
and payable in accordance with applicable law during such Lease Year even though
such Taxes may relate to a different period of time (such as the taxing
authority's fiscal year). [For example, if Taxes are payable on or before
September 30 of each year with respect to the fiscal period beginning on the
immediately preceding July 1 and ending on the immediately succeeding June 30,
then, for all purposes of this Lease, Taxes for Lease Year "X" refers to the
Taxes due and payable on September 30 of such Lease Year even though the same
may relate in part to both such Lease Year and the succeeding Lease Year.] The
parties hereby understand that, notwithstanding the foregoing, Taxes payable by
Tenant in accordance with the terms of this Lease shall be appropriately
adjusted for any partial Lease Year.
9.8 Default By Tenant
-----------------
At Landlord's option, and without in any way limiting Tenant's
obligations under this Lease, in the event of a material Default which has not
been cured within any applicable cure period by Tenant hereunder, Property Taxes
shall be paid by Tenant as additional rent to Landlord in monthly installments
for the remaining Term of this Lease on the same day that Base Monthly Rent is
due hereunder. Such monthly installments shall be an estimated amount equal to
one-twelfth (1/12) of the Property Taxes for the immediate preceding year,
subject to adjustment when the actual amount of Property Taxes is determined. At
such time as the actual amount of Property Taxes is determined, Landlord shall
furnish to Tenant a statement indicating the actual amount of Property Taxes.
Within thirty (30) days after receipt of such statement by Tenant, Tenant shall
pay to Landlord any deficiency due. Any surplus paid by Tenant shall, at
Tenant's option, be credited against the next installment(s) of Base Monthly
Rent or other charges due from Tenant or be refunded to Tenant forthwith. In
this instance, Landlord will endeavor to pay the Property Taxes within the
period to receive the maximum discount for early payment.
10. FURNITURE, FIXTURES AND EQUIPMENT
10.1 Furniture, Fixtures, and Equipment
----------------------------------
During the term Tenant may at Tenant's expense, place or install such
furniture, fixtures, and equipment on the Premises as may be needed for the
conduct of Tenant's business.
10.2 Security Interest
-----------------
Tenant hereby grants to Landlord a lien and security interest on all
property of Tenant now or hereafter placed and installed in, upon, or about the
Premises, including, without limitation, all furniture, trade fixtures,
equipment, machinery, furnishings, signs, and other articles of personal
property, and all proceeds of the sale or other disposition of such property
(collectively, the "Collateral") to secure the payment of all Base Monthly Rent
and additional rent to be paid by Tenant pursuant to this Lease and all other
obligations of Tenant arising under this Lease. It is expressly understood that
the term Collateral as used herein shall in no event extend to leasehold
improvements, fixtures or similar "vanilla shell" items such as light fixtures,
HVAC equipment, or other fixtures and equipment permanently affixed to the
Premises. Such lien and security interest shall be addition to Landlord's lien
provided by law. This Lease shall constitute a security agreement under the
Commercial Code of the state in which the Premises is located so that Landlord
shall have and may enforce a security interest in the Collateral. Tenant agrees
to execute as debtor and deliver such financing statement or statements and any
further documents as Landlord may now or hereafter reasonably request to protect
such security interest pursuant to such code. Landlord may also at any time file
a copy of this Lease as a financing statement. Landlord, as secured party, shall
be entitled to all rights and remedies afforded as secured party under such
code, which right and remedies shall be in addition to Landlord's liens and
rights provided by law or by the other terms and provisions of this Lease.
10.3 Subordination
-------------
Notwithstanding anything contained herein to the contrary, subject to
the provisions of this Section 10, Tenant may finance the Collateral. Provided
Tenant is not in default of the Lease, and subject to such reasonable
restrictions as Landlord may impose to protect its interests, Landlord's
security interest, at the option and upon written declaration of Landlord, shall
be subject, subordinate, and inferior to any lien(s) (and all renewals,
extensions, or replacements thereof) now or hereafter imposed by Tenant upon the
Collateral for the purpose of financing the same.
Landlord agrees to execute such reasonable and necessary documents to
confirm Landlord's foregoing covenant in favor of Tenant's mortgagees. Any
furniture, fixtures, and equipment placed in the Premises by Tenant may be
replaced by Tenant periodically during the term.
10.4 Removal of Furniture, Fixtures, and Equipment at Expiration of Lease
--------------------------------------------------------------------
At the expiration or earlier termination of the Lease, providing
Tenant is not in default of any terms or conditions of the Lease, the furniture,
fixtures, and equipment may be removed at the option of Tenant. Tenant
immediately shall make such repairs and restoration of the Premises as are
necessary to repair any damage to the Premises from the removal of the
furniture, fixtures, and equipment. Furniture, fixtures, and equipment not so
removed shall, at Landlord's option, become the property of Landlord, and
Landlord may cause such property to be removed from the Premises and disposed
of, but the cost of any such removal shall be borne by Tenant. The provisions of
this paragraph shall survive the expiration or termination of this Lease with
respect to the Premises.
10.5 Right to Affix Signs
--------------------
Tenant shall have the right to affix signs customarily used in its
business upon the windows, doors, interior, and exterior walls of the Premises,
and such free-standing signs as may seem appropriate to Tenant and are
authorized by any governmental authority having jurisdiction over the Premises
and permitted by any covenants, conditions, and restrictions encumbering the
Premises. Upon the expiration or earlier termination of the Lease, Landlord may
require Tenant to remove such signs within a reasonable time following receipt
of written notice from Landlord. Tenant immediately shall make such repairs and
restoration of the Premises as are necessary to repair any damage to the
Premises from the removal of the signs.
11. MAINTENANCE OF THE PREMISES
11.1 Obligation to Maintain the Premises
-----------------------------------
During the term of this Lease, Tenant shall, at its own expense, keep
and maintain the entire Premises in good order and repair, including, but not
limited to, the interior, exterior, foundations, floors, walls, roof, and
structure of the building; the sidewalks, curbs, walls, trash enclosures,
landscaping with sprinkler system (if installed), light standards, and parking
areas which are a part of the Premises. Tenant shall make such repairs and
replacements as may be necessary, regardless of whether the benefit of such
repair or replacement extends beyond the term of this Lease. The Premises shall
be returned to Landlord at the termination or expiration of this Lease in good
condition, ordinary wear excepted. Landlord hereby assigns to Tenant all
building contractor, subcontractor, and manufacturer's warranties and guarantees
applicable to the Premises; and Landlord shall cooperate with Tenant at Tenant's
request and sole cost in any action to enforce such warranties and guarantees.
In the event of destruction of the Premises by fire or casualty, the condition
of Premises upon termination of this Lease shall be governed by Section 14.
Landlord shall have no obligation whatsoever to alter, remodel, improve, repair,
renovate, retrofit or maintain the Premises or any portion thereof.
11.2 Major Repair or Replacement
---------------------------
Notwithstanding anything contained herein to the contrary, in the
event it shall become necessary to make any Major Repair or Replacement (as
defined below) during the term of this Lease or any extension hereof, such Major
Repair or Replacement shall be performed only with the prior written approval of
Landlord, which approval shall not be unreasonably withheld. The term "Major
Repair or Replacement" as used herein shall mean a single item of repair or
replacement (excluding maintenance) needed in connection with the structural
portions
of the Premises, the roof, parking areas or HVAC system costing in excess of TEN
THOUSAND DOLLARS ($10,000). The actual cost of such Major Repair or Replacement
shall be amortized over the useful life of the improvement on a straight line
basis. Tenant shall be entitled to reimbursement from Landlord of the
unamortized balance at the expiration of the Primary Term, unless Tenant has
elected to extend the term of the Lease pursuant to Section 3.2, in which case
Tenant shall not be entitled to reimbursement until the Extension Period has
expired. Tenant shall not be entitled to reimbursement from Landlord if the
Lease is terminated other than by expiration of the Lease Term or pursuant to
Sections 14.2 or 15.2. Notwithstanding the right of reimbursement granted
herein, Tenant solely shall be responsible for all Major Repair or Replacement
if such Major Repair or Replacement is caused as a result of Tenant's
negligence, intentional acts or omissions, or lack of proper maintenance during
the Primary Term or the Extension Period. Notwithstanding anything contained
herein to the contrary, Landlord solely shall be responsible for all Major
Repair or Replacement if such Major Repair or Replacement is caused as a result
of Landlord's negligence or intentional acts or omissions, or as a result of a
latent defect in the Premises.
11.3 Obligation to Keep the Premises Clear
-------------------------------------
Tenant shall keep the Premises, including sidewalks adjacent to the
Premises and loading area allocated for the use of Tenant, clean and free from
rubbish and debris at all times. Tenant shall store all trash and garbage within
the Premises and arrange for regular pickup and cartage of such trash and
garbage at Tenant's expense.
12. REPAIRS AND ALTERATIONS
12.1 Right to Make Alterations
-------------------------
At all times during the term of this Lease, except as provided in
Section 17, Tenant shall have the right to make alterations, additions, and
improvements to the interior or exterior of the Premises and parking areas
adjacent to the Premises. Nevertheless, any alterations or additions that are
over TWENTY-FIVE THOUSAND DOLLARS ($25,000) or are structural in nature shall
not be made by Tenant without prior written consent of Landlord. Any
alterations, additions, and improvements which may be made or installed by
Tenant shall remain upon the Premises and, at the expiration or earlier
termination of this Lease, shall be surrendered with the Premises to Landlord.
Any alteration, addition, or improvement for which Landlord gives its written
consent shall be accomplished by Tenant in a good workmanlike manner, in
conformity with applicable laws, regulations and covenants, conditions and
restrictions encumbering the Premises, and by a licensed contractor; and with
respect to alterations, additions, or improvements requiring Landlord's consent,
the contractor shall be approved by Landlord. Prior to commencement of any such
work, Tenant shall provide to Landlord copies of all required permits and
governmental approvals. Upon completion of any such work, Tenant shall provided
to Landlord "as-built" plans, copies of all construction contracts, building
permits, inspection reports and proof of payment of all labor and materials.
Tenant shall pay when due all claims for such labor and materials and shall give
Landlord at least ten (10) days' prior written notice of the commencement of any
such work.
12.2 Tenant Shall Not Render Premises Liable For Any Lien
----------------------------------------------------
Tenant shall have no right, authority, or power to bind Landlord, or
any interest of Landlord in the Premises, nor to render the Premises liable for
any lien or right of lien for the
payment of any claim for labor, material, or for any charge or expense incurred
to maintain, to repair, or to make alterations, additions, and improvements to
the Premises. Tenant shall in no way be considered the agent of Landlord in the
construction, erection, modification, repair, or alteration of the Premises.
Notwithstanding the above, Tenant shall have the right to contest the legality
or validity of any lien or claim filed against the Premises. No contest shall be
carried on or maintained by Tenant after the time limits in the sale notice of
the Premises for any such lien or claim unless Tenant (i) shall have duly paid
the amount involved under protest; (ii) shall have procured and recorded a lien
release bond from a bonding company acceptable to Landlord in an amount not less
than one and one-half (1-1/2) times the amount involved; or (iii) shall have
procured a stay of all proceedings to enforce collection. Upon a final adverse
determination of any contest, Tenant shall pay and discharge the amount of the
lien or claim determined to be due, together with any penalties, fines,
interest, cost, and expense which may have accrued, and shall provide proof of
payment to Landlord.
13. INDEMNITY AND INSURANCE
13.1 Indemnification
---------------
Tenant shall indemnify, defend, and protect Landlord, and hold
Landlord harmless from any and all loss, cost, damage, expense, liability
(including, without limitation, court costs and reasonable attorneys' fees)
incurred in connection with or arising at any time and from any cause whatsoever
in or about the Premises, other than damages proximately caused by reason of the
gross negligence or willful misconduct of Landlord or its agents and employees,
including, without limiting the generality of the foregoing: (i) any default by
Tenant in the observance or performance of any of the terms, covenants, or
conditions of this Lease on Tenant's part to be observed or performed; (ii) the
use or occupancy of the Premises by Tenant or any person claiming by, through,
or under Tenant; (iii) the condition of the Premises or any occurrence or
happening on the Premises from any cause whatsoever; or (iv) any acts,
omissions, or negligence of Tenant or any person claiming by, through, or under
Tenant, or of the contractors, agents, servants, employees, visitors, or
licensees of Tenant or any such person, in, on, or about the Premises, either
prior to or during the Lease term (including, without limitation, any holdovers
in connection therewith), including, without limitation, any acts, omissions, or
negligence in the making or performance of any alterations. Tenant further
agrees to indemnify and hold harmless Landlord, Landlord's agents, and the
landlord or landlords under all ground or underlying leases, from and against
any and all loss, cost, liability, damage, and expense (including, without
limitation, reasonable attorneys' fees) incurred in connection with or arising
from any claims by any persons by reason of injury to persons or damage to
property occasioned by any use, occupancy, condition, occurrence, happening,
act, omission, or negligence referred to in the preceding sentence. The
provisions of this Section shall survive the expiration or sooner termination of
this Lease with respect to any claims or liability occurring prior to such
expiration or termination, and shall not be limited by reason of any insurance
carried by Landlord and Tenant.
13.2 Insurance Company Requirement
-----------------------------
Insurance required by this Lease shall be issued by companies
holding a general policyholder's rating of A-VIII or better as set forth in the
most current issue of Best's Insurance Guide and authorized to do business in
----------------------
the state in which the Premises are located. If this
publication is discontinued, then another insurance rating guide or service
generally recognized as authoritative shall be substituted by Landlord.
13.3 Insurance Certificate Requirements
----------------------------------
13.3.1 Tenant shall deliver to Landlord evidence of the existence
and amounts of the insurance with additional insured
endorsements and loss payable clauses as required herein.
Tenant shall deliver to Landlord an XXXXX Form 25-S
Certificate of Insurance in connection with Tenant's
liability policy(ies), and an XXXXX Form 27 Evidence of
Property Insurance in connection with Tenant's property
policy(ies). No policy shall be cancelable or subject to
reduction of coverage or other modification except after
thirty (30) days' prior written notice to Landlord. Neither
the issuance of any insurance policy required hereunder, nor
the minimum limits specified herein with respect to any
insurance coverage, shall be deemed to limit or restrict in
any way the liability of Tenant arising under or out of this
Lease.
13.3.2 The insurance required to be maintained herein may be
carried under blanket policies. The insurance shall provide
for payment of loss jointly to Landlord and Tenant, subject
to paragraph 14 below.
13.4 Minimum Acceptable Insurance Coverage Requirements
--------------------------------------------------
13.4.1 Tenant shall, at Tenant's expense, obtain and keep in full
force during the term of this Lease a policy of combined
single limit bodily injury and property damage insurance
written on an occurrence basis insuring Tenant (with
Landlord as an additional insured) against any liability
arising out of ownership, use, occupancy, or maintenance of
the Premises and all of its appurtenant areas. The insurance
shall be in an amount not less than Two Million Dollars
($2,000,000) per occurrence; provided however, following
receipt of written notice from Landlord the limits of such
insurance shall be increased from time to time during the
term of the Lease to such amount as may be commercially
reasonable . The policy shall provide blanket contractual
liability coverage. However, the limits of the insurance
shall not limit the liability of Tenant. In addition, Tenant
shall, at Tenant's expense, obtain and keep in full force
during the term of this Lease an umbrella liability policy
in an amount not less than Two Million Dollars ($2,000,000)
in excess of primary insurance. The insurance to be
maintained by Tenant pursuant to this Section 13.4.1 shall
be primary and not contributory to any other insurance
maintained by Landlord.
13.4.2 Tenant shall, at Tenant's expense, obtain and keep in force
during the term of this Lease a "Special Form" (as such term
is used in the insurance industry) policy of insurance
covering loss or damage to the Premises. The insurance shall
be in an amount not less than the full guaranteed
replacement cost of the building(s) (less slab, foundation,
supports and other customarily excluded improvements). The
policy shall contain only standard printed exclusions;
include an agreed value endorsement waiving any co-insurance
penalty, and an ordinance or law coverage endorsement
covering increased costs resulting from changes in laws or
codes, and demolition and removal of the damaged structure.
In no event shall any deductible payable in connection with
such policy, together with any other form of self-insurance,
exceed Ten Thousand Dollars ($10,000). In addition, Tenant
shall, at Tenant's expense, obtain and keep in force during
the term of this Lease a policy or policies of insurance
covering loss or damage due to earthquake and flood.
13.4.3 Tenant shall also obtain and keep in force during the term
of this Lease a policy of Business Interruption insurance
covering a period of one (1) year. This insurance shall
cover all Taxes and insurance costs for the same period in
addition to one (1) year's lease rent amount.
13.4.4 Tenant shall also obtain and keep in force during the term
of this Lease a worker's compensation policy, insuring
against and satisfying Tenant's obligations and liabilities
under the worker's compensation laws of the state in which
the Premises are located, including Employer's Liability
insurance, in an amount of not less than One Million Dollars
($1,000,000).
13.5 Additional Insureds
-------------------
Tenant shall name as additional insureds (by way of a CG 20 26
endorsement) and loss payees on all insurance, Landlord, Landlord's
successor(s), assignee(s), nominee(s), nominator(s), and agents with an
insurable interest as follows:
REALTY INCOME CORPORATION, ITS OFFICERS, DIRECTORS,
AND ALL SUCCESSOR(S), ASSIGNEE(S), SUBSIDIARIES,
CORPORATIONS, PARTNERSHIPS, PROPRIETOR-SHIPS, JOINT
VENTURES, FIRMS, AND INDIVIDUALS AS HERETOFORE, NOW,
OR HEREAFTER CONSTITUTED ON WHICH THE NAMED INSURED
HAS THE RESPONSIBILITY FOR PLACING INSURANCE AND FOR
WHICH SIMILAR COVERAGE IS NOT OTHERWISE MORE
SPECIFICALLY PROVIDED.
13.6 Mortgage Endorsement
--------------------
If requested by Landlord, the policies of insurance required to be
maintained hereunder shall bear a standard first mortgage endorsement in favor
of any holder or holders of a first mortgage lien or security interest in the
property with loss payable to such holder or holders as their interests may
appear, subject to paragraph 14 below.
13.7 Renewals, Lapses or Deficiencies
--------------------------------
Tenant shall, at least thirty (30) days prior to the expiration of such
policies, furnish Landlord with renewal certificates of insurance or renewal
binders. Should Tenant fail to provide to Landlord the renewals or renewal
binders, or in the event of a lapse or deficiency of any insurance coverage
specified herein for any reason, Landlord may immediately replace the deficient
insurance coverage with a policy of insurance covering the Premises of the type
and in the limits set forth above. Upon written notice from Landlord of the
placement of insurance, Tenant shall immediately pay to Landlord, as additional
rent, an amount equal to the total cost of premiums and expense of such
insurance placement. Tenant shall not do or permit to be done anything which
shall invalidate or materially increase the cost of such insurance policies.
13.8 Waiver of Subrogation
---------------------
Tenant hereby waives and releases any and all right of recovery against
Landlord, including, without limitation, employees and agents, arising during
the term of the Lease for any and all loss (including, without limitation, loss
of rental) or damage to property located within or constituting a part of the
Premises, which loss or damage arises from any type of peril which is covered or
could be covered by a Special Form policy. This waiver is in addition to any
other waiver or release contained in this Lease. Tenant shall have its insurance
policies issued in such form as to waive any right of subrogation that might
otherwise exist, and shall provide written evidence thereof to Landlord upon
written request.
14.PARTIAL AND TOTAL DESTRUCTION OF THE PREMISES
14.1 Damage or Destruction
---------------------
In the event any part or all of the Premises shall at any time during
the term of this Lease be damaged or destroyed, regardless of cause, Tenant
shall give prompt notice to Landlord. Tenant shall repair and restore the
Premises to its original condition, including buildings and all other
improvements on the Premises, as soon as circumstances permit. Tenant shall hold
Landlord free and harmless from any and all liability of any nature whatsoever
resulting from such damage or destruction, and such repairs and restoration.
Tenant and not Landlord, shall be responsible for paying for any cost of repairs
and restoration in excess of the proceeds available from insurance policies
procured by Tenant. Tenant is not entitled to any rent abatement during or
resulting from any disturbance from partial or total destruction of the
Premises, and in no event shall Tenant be entitled to terminate the Lease.
14.2 Tenant's Right to Terminate
---------------------------
Notwithstanding anything contained herein to the contrary, Tenant may
terminate this Lease upon giving written notice to Landlord within thirty (30)
days following the date upon which the Premises is damaged or destroyed,
provided: (i) the Premises is totally or substantially damaged or destroyed (as
defined below); (ii) Tenant is not then in breach or default of the Lease; and
(iii) Tenant timely files an appropriate claim with its insurance carrier (in
the event of an insured casualty) in connection with such damage or destruction
and thereafter promptly pays over to Landlord the entirety of insurance proceeds
received in connection with the loss, plus a sum equal to the entirety of the
self-insured retention. As used herein, the phrase "totally or substantially
damaged or destroyed" shall mean that the period of time to restore or repair
the
Premises as estimated by at least two (2) reputable general contractors
properly licensed in the State in which the Premises is located (and reasonably
acceptable to and approved by Landlord), shall exceed One Hundred Twenty (120)
days.
The Lease will terminate effective on the date Landlord receives the
total sum due pursuant to this Section 14.2. Upon such termination, Landlord and
Tenant shall be released from all obligations and liabilities under the Lease,
with the exception of those liabilities which accrued prior to the termination
date and those obligations which, pursuant to the terms of the Lease, accrued
prior to the termination date and survive termination or expiration of the
Lease.
15.CONDEMNATION
15.1 Condemnation Damages
--------------------
In the event of the taking or conveyance of the whole or any part of
the Premises by reason of condemnation by any public or quasi-public body,
Landlord and Tenant shall represent themselves independently in seeking damages
before the condemning body. Each party shall be entitled to the amount awarded
respectively to each. Landlord shall be entitled to the entirety of the award
with the exception of the following:
15.1.1 Any portion of the award attributable to Tenant's movable
leasehold improvements made to the Premises by Tenant in
accordance with this Lease;
15.1.2 Any portion of the award attributable to Tenant's
furniture, fixtures and equipment;
15.1.3 Any portion of the award attributable to: (i) removing
Tenant's furniture, fixtures and equipment; (ii) damage or
loss to Tenant's business and good will; and (iii) moving
and relocation expenses; and
15.1.4 Any portion of the award attributable to Tenant's interest
in the leasehold estate created by this Lease.
15.2 Termination of Lease Due to Condemnation
----------------------------------------
In the event that the Condemnation materially adversely affects the use
of the Premises as defined in Section 8, Tenant may terminate the Lease by
giving Landlord sixty (60) days' written notice of its intention to terminate
the Lease after receiving notice of the Condemnation from the condemning
authority. The effective date of the termination shall be the actual date of
such taking. In the event of termination, the rent for the last month of
Tenant's occupancy shall be prorated and Landlord shall refund to Tenant any
rent paid in advance and Tenant shall thereupon be released from its obligation
to pay rent.
16.ASSIGNMENT AND SUBLETTING
16.1 Tenant's Right of Assignment and Subletting
-------------------------------------------
Tenant shall not voluntarily or by operation of law assign or encumber
its interest in this Lease or in the Premises, or sublease all or any part of
the Premises, or allow any other
person or entity to occupy or use any part of the Premises, without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. Any assignment, encumbrance, or sublease without
Landlord's consent shall be voidable and, at Landlord's election, shall
constitute a default. It shall not be unreasonable for Landlord to withhold its
consent to any proposed assignment or subletting if the proposed transferee does
not meet certain criteria, including, but not limited to, the transferee's
financial condition, the nature, quality, and character of the transferee, the
identity or business character of the transferee, the nature of the use and
occupancy and the transferee's business experience. The sale of the entirety of
Tenant's business, or the merger of Tenant in its entirety with another entity
shall not be deemed an assignment under this provision provided the proposed
transferee has a tangible net worth equal to or greater than that of Tenant at
the time of the sale or merger.
16.2 Landlord's Option to Preserve Subtenancies
------------------------------------------
In the event of Tenant's surrender of this Lease or the termination of
this Lease in any other manner, Landlord may, at its option, either terminate
any or all subtenancies or succeed to the interest of Tenant as sublandlord
thereunder. No merger shall result from Tenant's sublease of the Premises under
this Section, Tenant's surrender of this Lease, or the termination of this Lease
in any other manner.
16.3 Tenant's Assignment of All Rent from Subletting as Security for
---------------------------------------------------------------
Tenant's Obligations
--------------------
Tenant immediately and irrevocably assigns to Landlord, as security for
Tenant's obligations under this Lease, all rent from any subletting of all or a
part of the Premises as permitted by this Lease. In the event of a default by
Tenant, Landlord, as assignee and as attorney-in-fact for Tenant, or a receiver
for Tenant appointed on Landlord's application, may collect the rent and apply
it toward Tenant's obligations under this Lease.
16.4 Continuing Obligation of Tenant
-------------------------------
No transfer permitted by this Section 16 shall release Tenant or change
Tenant's primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease. Landlord's acceptance of rent from any other person
is not a waiver of any provision of this Section. Consent to one transfer is not
a consent to any subsequent transfer. If Tenant's transferee defaults under this
Lease, Landlord may proceed directly against Tenant without pursuing remedies
against the transferee. Landlord may consent to subsequent assignments or
modifications of this Lease by Tenant's transferee, without notifying Tenant or
obtaining its consent. Such action shall not relieve Tenant's liability under
this Lease.
16.5 Fees and Costs with Regard to Proposed Assignment or Sublease
-------------------------------------------------------------
If Tenant requests Landlord to consent to a proposed assignment or
sublease, Tenant shall pay to Landlord, whether or not consent is ultimately
given, Landlord's reasonable attorneys' fees and other costs incurred in
connection with each such request, not to exceed ONE THOUSAND DOLLARS ($1,000)
for each requested assignment or sublease.
16.6 Landlord's Right of Assignment
------------------------------
Landlord shall be free at all times, without need of consent or
approval by Tenant, to assign its interest in this Lease and/or to convey fee
title to the Premises. Each conveyance by Landlord of Landlord's interest in the
Lease or the Premises prior to expiration or termination
hereof shall be subject to this Lease and shall relieve the grantor of any
further obligations or liability as Landlord, and Tenant shall look solely to
Landlord's successor in interest for all future obligations of Landlord. Tenant
hereby agrees to attorn to Landlord's successors in interest, whether such
interest is acquired by sale, transfer, foreclosure, deed in lieu of
foreclosure, or otherwise. The term "Landlord" as used in this Lease, so far as
covenants and obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner at the time in question of the fee
title of the Premises. Without further agreement, the transferee of such title
shall be deemed to have assumed and agreed to observe and perform any and all
obligations of Landlord hereunder during its ownership of the Premises.
17.DEFAULT AND TERMINATION
17.1 Event of Default
----------------
The occurrence of any of the following events (each an "Event of
Default") shall constitute a default by Tenant:
17.1.1 Failure by Tenant to pay Base Monthly Rent or any item of
additional rent when due; provided, however, for up to
two (2) times during any twelve (12) consecutive month
period, if any payment of rent is not received when due,
Landlord shall notify Tenant in writing (a "Late
Notice"), and Tenant shall have ten (10) days from the
date of receipt of the Late Notice to make full payment
of the rent. If the late rent is not paid within the ten
(10) day period, or if any subsequent rent during that
twelve (12) consecutive month period is not received when
due after Landlord has delivered to Tenant the two (2)
Late Notices as hereinabove required, then Tenant shall
be in default of this Lease..
17.1.2 Failure by Tenant to perform or comply with any provision
of this Lease (other than as set forth in Subsection
17.1.1) if the failure is not cured within thirty (30)
days after notice has been given to Tenant. If, however,
the failure cannot reasonably be cured within the cure
period, Tenant shall not be in default of this Lease if
Tenant commences to cure the failure within the cure
period and diligently and in good faith continues to cure
the failure.
17.1.3 A default by Tenant under any other lease in which
Landlord is the landlord and Tenant is the tenant.
17.1.4 To the extent permitted by law, a general assignment by
Tenant or any guarantor of the Lease for the benefit of
creditors, or the filing by or against Tenant or any
guarantor of any proceeding under any insolvency or
bankruptcy law, unless in the case of a proceeding filed
against Tenant or any guarantor the same is dismissed
within sixty (60) days, or the appointment of a trustee
or receiver to take possession of all or substantially
all of the assets of Tenant or any guarantor, unless
possession is restored to Tenant or such guarantor within
(30) days, or any execution or other judicially
authorized seizure of all or
substantially all of Tenant's assets located upon the
Premises or of Tenant's interest in this Lease, unless
such seizure is discharged within thirty (30) days.
17.1.5 Any notice delivered pursuant to this Section 17.1 shall
be in lieu of, and not in addition to, any notice
required by law.
17.2 Landlord's Remedies
-------------------
Landlord shall have any one or more of the following remedies after the
occurrence of a default by Tenant. These remedies are not exclusive; they are
cumulative in addition to any remedies now or later allowed by law, in equity,
or otherwise:
17.2.1 Terminate this Lease by giving written notice of
termination to Tenant, in which event Tenant immediately
shall surrender the Premises to Landlord. If Tenant fails
to so surrender the Premises, then Landlord, without
prejudice to any other remedy it has for possession of
the Premises or arrearages in rent or other damages, may
re-enter and take possession of the Premises and expel or
remove Tenant and any other person or entity occupying
the Premises or any part thereof, without being liable
for any damages, whether caused by negligence of Landlord
or otherwise.
17.2.2 No act by Landlord other than giving notice of
termination to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises, or the
appointment of a receiver on Landlord's initiative to
protect Landlord's interest under this Lease shall not
constitute a termination of this Lease. On termination of
the Lease, Landlord shall have the right to recover from
Tenant:
(i) The worth at the time of the award of the unpaid
rent that had been earned at the time of
termination of this Lease; and
(ii) Any other amount, including, without limitation,
attorneys' fees and court costs, necessary to
compensate Landlord for all detriment
proximately caused by Tenant's default permitted
by applicable law.
The term "rent" as used in this Section 17.2.2
means all sums payable by Tenant pursuant to the
Lease, including, without limitation, all rent,
additional rent, Taxes, and insurance.
17.2.3 Landlord may re-enter and take possession of the Premises
without terminating this Lease and without being liable
for any damages, whether caused by the negligence of
Landlord or otherwise. Landlord may relet the Premises,
or any part of them, to third parties, but has no
obligation to do so. Landlord may relet the Premises on
whatever terms and conditions Landlord, in its sole
discretion, deems advisable.
Reletting can be for a period shorter or longer than the
remaining term of this Lease. Landlord's action under
this Subsection is not considered an acceptance of
Tenant's surrender of the Premises unless Landlord so
notifies Tenant in writing. Tenant shall be immediately
liable to Landlord for all costs Landlord incurs in
reletting the Premises, including brokers' commissions,
expenses of remodeling the Premises required by the
reletting, and like costs. Tenant shall pay to Landlord
the rent due under this Lease on the dates the rent is
due, less the rent Landlord receives from any reletting.
If Landlord elects to relet the Premises without
terminating this Lease, any rent received will be applied
to the account of Tenant, not to exceed Tenant's total
indebtedness to Landlord; no reletting by Landlord is
considered to be for its own account unless Landlord has
notified Tenant in writing that the Lease has been
terminated. If Landlord elects to relet the Premises,
rent that Landlord receives from reletting will be
applied to the payment of: (i) first, any indebtedness
from Tenant to Landlord other than rent due from Tenant;
(ii) second, all costs, including maintenance, incurred
by Landlord in reletting; and (iii) third, rent due and
unpaid under the Lease. After deducting the payments
referred to in this Subsection, any sum remaining from
the rent Landlord receives from reletting will be held by
Landlord and applied in payment of future rent as rent
becomes due under this Lease. If, on the date rent is due
under this Lease, the rent received from the reletting is
less than the rent due on that date, Tenant will pay to
Landlord, in addition to the remaining rent due, all
costs, including maintenance, Landlord incurred in
reletting which remain after applying the rent received
from the reletting. Tenant shall have no right to or
interest in the rent or other consideration received by
Landlord from reletting to the extent it exceeds Tenant's
total indebtedness to Landlord.
17.2.4 Following the expiration of any applicable cure period,
Landlord may re-enter the Premises without terminating
this Lease and without being liable for any damages
(unless caused by the gross negligence or willful
misconduct of Landlord), and do whatever Tenant is
obligated to do under the terms of this Lease. The
expenses incurred by Landlord in affecting compliance
with Tenant's obligations under this Lease immediately
shall become due and payable to Landlord as additional
rent.
17.2.5 In all events, Tenant is liable for all damages of
whatever kind of nature, direct or indirect, suffered by
Landlord as a result of the occurrence of an Event of
Default.
17.2.6 Pursuit of any of the foregoing remedies does not
constitute an irrevocable election of remedies nor
preclude pursuit of any other remedy provided elsewhere
in this Lease or by applicable law, and
none is exclusive of another unless so provided in this
Lease or by applicable law. Likewise, forbearance by
Landlord to enforce one or more of the remedies available
to it on an Event of Default does not constitute a waiver
of that default or of the right to exercise that remedy
later or of any rent, damages, or other amounts due to
Landlord hereunder.
17.2.7 Whether or not Landlord elects to terminate this Lease or
Tenant's right to possession of the Premises on account
of any default by Tenant, Landlord shall have all rights
and remedies at law or in equity, including, but not
limited to, the right to re-enter the Premises and, to
the maximum extent provided by law, Landlord shall have
the right to terminate any and all subleases, licenses,
concessions, or other consensual arrangements for
possession entered into by Tenant and affecting the
Premises or, in Landlord's sole discretion, may succeed
to Tenant's interest in such subleases, licenses,
concessions, or arrangements. In the event of Landlord's
election to succeed to Tenant's interest in any such
subleases, licenses, concessions, or arrangements, Tenant
shall have no further right to or interest in the rent or
other consideration receivable thereunder as of the date
of notice by Landlord of such election.
17.3 Late Charge
-----------
If Tenant fails to pay when due any payment of rent or other charges
which Tenant is obligated to pay to Landlord under this Lease, there shall be a
late charge, immediately payable by Tenant as additional rent, in the amount of
six percent (6%) of each such obligation. Landlord and Tenant agree that this
sum is reasonable to compensate Landlord for accounting and administrative
expenses incurred by Landlord. In addition to the late charge, any and all rent
or other charges which Tenant is obligated to pay to Landlord under this Lease
which are unpaid shall bear interest at the rate set forth in Section 17.6 from
the date said payment was due until paid, said interest to be payable by Tenant
as additional rent. Landlord and Tenant agree that this sum is reasonable to
compensate Landlord for the loss of the use of funds. Notwithstanding the
foregoing, in the event Landlord shall have provided written notice to Tenant in
accordance with Section 17.1.1, Tenant shall not be obligated to pay the late
charge and interest otherwise due pursuant to this Section 17.3 unless ten (10)
days shall have lapsed following Tenant's receipt of said notice and the
delinquent amount(s) shall not have been paid. In addition to the foregoing, if
any check tendered by Tenant to Landlord is dishonored by the financial
institution upon which the check is drawn (e.g., insufficient funds, uncollected
funds, account closed, payment stopped, etc.), Tenant shall pay to Landlord the
greater of Twenty Dollars ($20.00) or the actual service fee charged by
Landlord's financial institution in connection with such dishonored check.
17.4 Right of Landlord to Re-Enter
-----------------------------
In the event of any termination of this Lease, Landlord shall have the
immediate right to enter upon and repossess the Premises, and any personal
property of Tenant may be removed from the Premises and stored in any public
warehouse at the risk and expense of Tenant.
17.5 Surrender of Premises
---------------------
No act or thing done by Landlord or any agent or employee of Landlord
during the Lease term shall be deemed to constitute an acceptance by Landlord or
a surrender of Premises unless such intent is specifically acknowledged in a
writing signed by Landlord. The delivery of keys to the Premises to Landlord or
any agent or employee of Landlord shall not constitute a surrender of the
Premises or effect a termination of this Lease, whether or not the keys are
thereafter retained by Landlord and, notwithstanding such delivery, Tenant shall
be entitled to the return of such keys at any reasonable time upon request until
this Lease shall have been terminated properly. The voluntary or other surrender
of this Lease by Tenant, whether accepted by Landlord or not, or a mutual
termination hereof, shall not work a merger, and at the option of Landlord shall
operate as an assignment to Landlord of all subleases or subtenancies affecting
the Premises.
17.6 Interest Charges
----------------
Any amount not paid by one party to the other when due to the other
party will bear interest from the date due at the lesser of (i) the prime
commercial rate being charged by the Bank of America N.A. in effect on the date
due plus two percent (2%) per annum; or (ii) the maximum rate permitted by law.
If Bank of America N.A. is no longer in existence, then another comparable bank
or financial institution shall be substituted by Landlord.
17.7 Tenant's Default
----------------
If Tenant is in default of the Lease, then:
17.7.1 For so long as Landlord does not terminate Tenant's
right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant will have the right to
assign or sublet its interest in the Lease, but Tenant
will not be released from liability.
17.7.2 No structural changes to the building at any cost shall
be permitted without the prior written approval of
Landlord.
17.7.3 All costs of de-identification of the Premises shall be
paid by Tenant whether or not Landlord terminates this
Lease.
17.8 Default by Landlord
-------------------
Landlord shall be in default if Landlord fails to perform any provision
of this Lease required of it and the failure is not cured within thirty (30)
days after notice has been given to Landlord. If, however, the failure cannot
reasonably be cured within the cure period, Landlord shall not be in default of
this Lease if Landlord commences to cure the failure within the cure period and
diligently and in good faith continues to cure the failure. Notices given under
this Section 17.8 shall specify the alleged breach and the applicable Lease
provisions. If Landlord shall at any time default beyond the applicable notice
and cure period, Tenant shall have the right to cure such default on Landlord's
behalf. Any sums expended by Tenant in doing so, and all reasonably necessary
incidental costs and expenses incurred in connection therewith, shall be payable
by Landlord to Tenant within thirty (30) days following demand therefor by
Tenant, provided, however, that Tenant shall not be entitled to any deduction or
offset against any rent
otherwise payable to Landlord under this Lease, and in no event may Tenant
terminate this Lease in the event of a default by Landlord.
18.RIGHT OF INSPECTION
Landlord and Landlord's authorized representatives shall have the
right (but not the obligation) after written notice to Tenant of at least two
(2) business days (except in the event of emergencies), to enter upon the
Premises at all reasonable hours for the purpose of inspecting the Premises or
of making repairs, additions, or alterations in or upon the Premises, and,
during the last six (6) months of the term for the purpose of exhibiting the
Premises to prospective tenants, purchasers, or others. Provided Tenant is not
in default beyond any applicable cure period, Landlord shall not exhibit any
"for sale" signs during the term of the Lease. Landlord will make every
reasonable effort to not interfere with the operation of Tenant's business.
19.WAIVER OF BREACH
No waiver by Landlord of any breach of any one or more of the terms,
covenants, conditions, or agreements of this Lease shall be deemed to imply or
constitute a waiver of any succeeding or other breach. Failure of Landlord to
insist upon the strict performance of any of the terms, conditions, covenants,
and agreements of this Lease shall not constitute or be considered as a waiver
or relinquishment of Landlord's rights to subsequently enforce any default,
term, condition, covenant, or agreement, which shall all continue in full force
and effect. The rights and remedies of Landlord under this Lease shall be
cumulative and in addition to any and all other rights and remedies which
Landlord has or may have.
20.NOTICES
20.1 Notice Requirements
-------------------
All notices, requests, or demands herein provided to be given or made,
or which may be given or made by either party to the other, shall be given or
made only in writing and shall be deemed to have been duly given: (i) when
delivered personally at the address set forth below, or to any agent of the
party to whom notice is being given, or if delivery is rejected when delivery
was attempted; or (ii) on the date delivered when sent via Overnight Mail,
properly addressed and postage prepaid; or (iii) on the date sent via facsimile
transmission (provided, however, if receipt is confirmed after 5 p.m.
recipient's time, delivery will be deemed on the next business day); or (iv)
upon delivery, or if delivery is rejected when delivery was attempted of
properly addressed first class mail, postage prepaid with return receipt
requested. The proper address to which notices, requests, or demands may be
given or made by either party shall be the address set forth at the end of this
Section or to such other address or to such other person as any party shall
designate. Such address may be changed by written notice given to the other
party in accordance with this Section.
If to Landlord:
Realty Income Corporation
Attn: Legal Department
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
If to Tenant:
X-Xxxxx.xxx, Inc.
Attn: Vice President, Operations
0000 Xxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 0
Xxxxxxxxx Xxxxx, XX 00000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
20.2 Payments Under Lease
--------------------
Rent and all other payments due to Landlord under this Lease shall be
paid in lawful money of the United States of America without offset or deduction
(except as provided herein) to the name and at the address first given above or
to such other persons or parties or at such other places as Landlord may from
time to time designate in writing.
21.RELATIONSHIP OF THE PARTIES
This Lease shall not be deemed or construed by the parties, nor by any
third party, as creating the relationship of (i) principal and agent, (ii)
partnership, or (iii) joint venture between the parties. Neither the method of
computation of rent nor any other provision of this Lease, nor any acts of the
parties are other than in the relationship of Landlord and Tenant.
22.SUBORDINATION, ATTORNMENT AND ESTOPPEL
22.1 Subordination and Non-Disturbance
---------------------------------
Subject to the provisions of this Section, this Lease and the leasehold
estate created hereby shall be, at the option and upon written declaration of
Landlord, subject, subordinate, and inferior to the lien and estate of any
liens, trust deeds, and encumbrances ("Mortgages"), and all renewals,
extensions, or replacements thereof, now or hereafter imposed by Landlord upon
the Premises; provided, however, that this Lease shall not be subordinate to any
Mortgage arising after the date of this Lease, or any renewal, extension, or
replacement thereof, unless and until Landlord provides Tenant with an agreement
("Non-Disturbance Agreement"), signed and acknowledged by each holder of any
such interest setting forth that so long as Tenant is not in default hereunder,
Landlord's and Tenant's rights and obligations hereunder shall remain in force
and Tenant's right to possession shall be upheld. The Non-Disturbance Agreement
may contain additional provisions as are customarily requested by secured
lenders with liens encumbering real property security similar to the Premises
and any tenants in similar situations, including,
without limitation, Tenant's agreement to attorn as set forth in Section 22.2
below. Tenant shall, promptly following a request by Landlord and after receipt
of the Non-Disturbance Agreement, execute and acknowledge any subordination
agreement or other documents required to establish of record the priority of any
such encumbrance over this Lease, so long as such agreement does not otherwise
increase Tenant's obligations or diminish Tenant's rights hereunder.
22.2 Attornment
----------
In the event of foreclosure of any Mortgage, whether superior or
subordinate to this Lease, then (i) this Lease shall continue in force; (ii)
Tenant's quiet possession shall not be disturbed if Tenant is not in default
hereunder; (iii) Tenant shall attorn to and recognize the mortgagee or purchaser
at foreclosure sale ("Successor Landlord") as Tenant's landlord for the
remaining term of this Lease; and (iv) the Successor Landlord shall not be bound
by (a) any payment of rent for more than one month in advance; (b) any
amendment, modification, or ending of this Lease without the Successor
Landlord's consent after the Successor Landlord's name is given to Tenant,
unless the amendment, modification, or ending is specifically authorized by the
original Lease and does not require Landlord's prior agreement or consent; and
(c) any liability for any act or omission of a prior Landlord. At the request of
the Successor Landlord, Tenant shall execute a new lease for the Premises,
setting forth all of the provisions of this Lease except that the term of the
new lease shall be for the balance of the term of this Lease.
22.3 Estoppel Certificate
--------------------
Tenant shall execute and deliver to Landlord, within twenty (20) days
after receipt of Landlord's request, any estoppel certificate or other statement
to be furnished to any prospective purchaser of or any lender against the
Premises. Such estoppel certificate shall acknowledge and certify each of the
following matters, to the extent each may be true: that the Lease is in effect
and not subject to any rental offsets, claims, or defenses to its enforcement;
the commencement and expiration dates of the term; that Tenant is paying rent on
a current basis; that any improvements required to be furnished under the Lease
have been completed in all respects; that the Lease constitutes the entire
agreement between Tenant and Landlord relating to the Premises; that Tenant has
accepted the Premises and is in possession thereof; that the Lease has not been
modified, altered, or amended except in specified respects by specified
instruments; that Tenant has no notice of any prior assignment, hypothecation,
or pledge of rents or the Lease; and such other matters as reasonably may be
requested. Tenant shall also, upon request of Landlord, certify and agree for
the benefit of any lender against the Premises or the building ("Lender") that
Tenant will not look to such Lender: as being liable for any act or omission of
Landlord; as being obligated to cure any defaults of Landlord under the Lease
which occurred prior to the time Lender, its successors or assigns, acquired
Landlord's interest in the Premises by foreclosure or otherwise, as being bound
by any payment of rent or additional rent by Tenant to Landlord for more than
one (1) month in advance; or as being bound by Landlord to any amendment or
modification of the Lease without Lender's written consent. Failure to deliver
the documents required under this Section 22 in the time period required shall
constitute an Event of Default without the need for any notice or cure period.
23.TENANT'S FINANCIAL STATEMENTS
During the term of the Lease, Tenant shall provide Landlord with
current financial statements as follows: (i) within sixty (60) days of the end
of each fiscal quarter, including the
fourth (4/th/) quarter, Tenant's profit and loss statement and balance sheet;
(ii) within one hundred twenty (120) days of the end of each fiscal year,
Tenant's profit and loss statement, balance sheet, statement of changes in
financial position, and notes to the financial statements as reviewed or audited
by an independent certified public accountant or accounting firm; and (iii)
within one hundred twenty (120) days of the end of each fiscal year, Tenant's
profit and loss statement for the retail sales operations located upon the
Premises.
24. ATTORNEYS' FEES
24.1 Recovery of Attorneys' Fees and Costs of Suit
---------------------------------------------
Tenant and Landlord shall each reimburse the other, upon demand, for
any costs or expenses incurred by Tenant or Landlord, as the case may be, in
connection with any breach or default under this Lease by the other party,
whether or not suit is commenced or judgment entered. Such costs shall include
legal fees and costs incurred for the negotiation of a settlement, enforcement
of rights, or otherwise. Furthermore, if any action for breach of or to enforce
the provisions of this Lease is commenced, the court in such action shall award
to the party in whose favor a judgment is entered, a reasonable sum as
attorneys' fees and costs. Such attorneys' fees and costs shall be paid by the
losing party in such action.
24.2 Party to Litigation
-------------------
Tenant shall indemnify Landlord against and hold Landlord harmless from
all costs, expenses, demands, and liability incurred by Landlord if Landlord
becomes or is made a party to any claim or action (i) instituted by Tenant, or
by any third party against Tenant, or by or against any person holding any
interest under or using the Premises by license of or agreement with Tenant;
(ii) for foreclosure of any lien for labor or material furnished to or for
Tenant or such other person; (iii) otherwise arising out of or resulting from
any action or transaction of Tenant or such other person; or (iv) necessary to
protect Landlord's interest under this Lease in a bankruptcy proceeding, or
other proceeding under Title 11 of the United States Code, as amended. Tenant
shall defend Landlord against any such claim or action at Tenant's expense with
counsel reasonably acceptable to Landlord or, at Landlord's election, Tenant
shall reimburse Landlord for any legal fees or costs incurred by Landlord in any
such claim or action.
25. CONSENT
Landlord shall have no liability for damages resulting from, nor may
Tenant terminate this Lease as a result of, Landlord's failure to give any
consent, approval, or instruction reserved to Landlord. Tenant's sole remedy in
any such event shall be an action for injunctive relief.
26. AUTHORITY TO MAKE LEASE; COVENANT OF QUIET ENJOYMENT
26.1 Full Power and Authority to Enter Lease
---------------------------------------
The parties covenant and warrant that each has full power and authority
to enter into this Lease.
26.2 Quiet Enjoyment
---------------
Landlord covenants and warrants that Tenant shall have and enjoy full,
quiet, and peaceful possession of the Premises, its appurtenances and all rights
and privileges incidental
thereto during the term, as against all persons subject to the provisions of
this Lease and any title exceptions or defects in existence on the Commencement
Date.
26.3 No Violation of Covenants and Restrictions
------------------------------------------
Tenant leases the Premises subject to all encumbrances, covenants,
conditions, restrictions, easements, rights of way, and all other matters of
record affecting the Premises. Tenant shall not violate, knowingly permit a
violation, or cause Landlord to violate any recorded covenants and restrictions
affecting the Premises. Tenant shall defend, indemnify, and hold harmless
Landlord from any costs or expenses incurred from such a violation.
27. HAZARDOUS MATERIAL
27.1 Environmental Compliance
------------------------
Tenant shall not cause or permit, except in compliance with all
applicable laws, any Hazardous Material to be brought upon, or used in or about
the Premises by Tenant, its agents, employees, contractors, or invitees, without
the prior written consent of Landlord (which Landlord shall not unreasonably
withhold as long as Tenant demonstrates to Landlord's reasonable satisfaction
that such Hazardous Material is necessary or useful to Tenant's business and
will be used, kept, and stored in a manner that complies with all laws relating
to such Hazardous Material.) If Tenant breaches the obligations stated in the
preceding sentence, if the presence of Hazardous Material on the Premises caused
or permitted by Tenant results in contamination of the Premises, or if
contamination of the Premises by Hazardous Material otherwise occurs and
Landlord is not responsible for the contamination, then Tenant shall indemnify,
defend, and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without limitation,
diminution in value of the Premises, damages for the loss or restriction on use
of rentable or usable space or of any amenity of the Premises, damages arising
from any adverse impact on marketing of space of the Premises, and sums paid in
settlement of claims, attorneys' fees, consultation fees, and expert fees) which
arise during or after the term of the Lease as a result of such contamination.
This indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation or site conditions or any cleanup,
remedial, removal, or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Premises. Without limiting
the foregoing, if the presence of any Hazardous Material on the Premises caused
or permitted by Tenant as aforesaid results in any contamination of the
Premises, Tenant shall promptly take all actions at its sole expense as are
recommended by environmental engineers hired by Tenant and are necessary to
return the Premises to the condition existing prior to the introduction of any
such Hazardous Material to the Premises; provided that Landlord's approval of
such actions shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Premises.
27.2 Survival
--------
Provisions of this Section 27 shall survive termination of tenancy.
28. GENERAL PROVISIONS
28.1 Gender; Number
--------------
The use of (i) the neuter gender includes the masculine and feminine
and (ii) the singular number includes the plural, whenever the context requires.
28.2 Captions
--------
Captions in this Lease are inserted for the convenience of reference
only and do not define, describe, or limit the scope or the intent of this Lease
or any of its terms.
28.3 Exhibits
--------
All attached exhibits are a part of this Lease and are incorporated in
full by this reference. Except as specifically provided herein, if any provision
contained in any exhibit hereto is inconsistent or in conflict with any
provisions of this Lease, the provisions of this Lease shall supersede the
provisions of such exhibit and shall be paramount and controlling.
28.4 Entire Agreement
----------------
This Lease contains the entire agreement between the parties relating
to the transactions contemplated hereby and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are
merged into this Lease.
28.5 Drafting
--------
This Lease shall not be construed more strictly against one party than
the other because it may have been drafted by one of the parties or its counsel,
each having contributed substantially and materially to the negotiation and
drafting hereof.
28.6 Modification
------------
No modification, waiver, amendment, discharge, or change of this Lease
shall be valid unless it is in writing and signed by the party against which the
enforcement of the modification, waiver, amendment, discharge, or change is or
may be sought.
28.7 Joint and Several Liability
---------------------------
If any party consists of more than one person or entity, the liability
of each such person or entity signing this Lease shall be joint and several.
28.8 Governing Law
-------------
This Lease shall be construed and enforced in accordance with the laws
of the state in which the Premises are located. In the event any provision
contained in this Lease is inconsistent or in conflict with local law, custom,
or practice, the provisions of this Lease shall supersede and shall be paramount
and controlling.
28.9 Attorneys' Fees
---------------
With respect to any provisions in this Lease providing for payment or
indemnification of attorneys' fees, such fees shall be deemed to include
reasonable fees incurred through any applicable appeal process, and shall
include fees attributable to legal services provided by any in-house counsel and
staff to the prevailing or indemnified party. For purposes hereof, the services
of in-house counsel and their staff shall be valued at rates for independent
counsel prevailing in the metropolitan area in which such counsel and staff
practice.
28.10 Time of Essence
---------------
Time is of the essence of every provision of this Lease.
28.11 Severability
------------
In the event any term, covenant, condition, or provision of this Lease
is held to be invalid, void, or otherwise unenforceable by any court of
competent jurisdiction, the fact that such term, covenant, condition, or
provision is invalid, void, or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition, or
provision of this Lease.
28.12 Successors and Assigns
----------------------
Except as otherwise provided herein, all terms of this Lease shall be
binding upon, inure to the benefit of, and be enforceable by the parties and
their respective legal representatives, successors, and assigns.
28.13 Independent Covenants
---------------------
This Lease shall be construed as though the covenants herein between
Landlord and Tenant are independent and not dependent, and Tenant hereby
expressly waives the benefit of any statute to the contrary and agrees that if
Landlord fails to perform its obligations set forth herein, Tenant shall not be
entitled to make any repairs or perform any acts hereunder at Landlord's expense
or to any offset of the rent or other amounts owing hereunder against Landlord;
provided, however, the foregoing shall in no way impair the right of Tenant to
commence a separate action against Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder of
a mortgage or deed of trust covering the Premises (of whose address Tenant has
theretofore been notified) and an opportunity is granted to Landlord and such
holder to correct such violation as provided above.
28.14 Information Provided
--------------------
Tenant warrants and represents that all information Tenant has provided
to Landlord is accurate and correct and Tenant acknowledges that Landlord has
relied upon such information in entering into this Lease
28.15 Limitation of Landlord's Liability
----------------------------------
Notwithstanding anything contained in this Lease to be contrary,
Landlord shall not incur any liability beyond Landlord's interest in the
Premises upon a breach of this Lease, and Tenant shall look exclusively to such
interest in the Premises for the payment and discharge of any obligations
imposed upon Landlord under this Lease.
28.16 No Lease Until Accepted
-----------------------
Landlord's delivery of unexecuted copies or drafts of this Lease is
solely for the purpose of review by the party to whom delivered and is in no way
to be construed as an offer by Landlord nor in any way implies that Landlord is
under any obligation to lease the Premises. When this Lease has been executed by
both Landlord and Tenant, it shall constitute a binding agreement to lease the
Premises upon the terms and conditions provided herein and Landlord and
Tenant agree to execute all instruments and documents and take all actions as
may be reasonably necessary or required in order to consummate the lease of the
Premises as contemplated herein.
28.17 Counterparts
------------
This Lease may be executed in any number of counterparts, each of which
shall be deemed an original. The counterparts shall together constitute but one
agreement. Any signature on a copy of this Lease or any document necessary or
convenient thereto sent by facsimile shall be binding upon transmission by
facsimile and the facsimile copy may be utilized for the purposes of this Lease.
LANDLORD: TENANT:
REALTY INCOME CORPORATION, X-XXXXX.XXX, INC.,
a Maryland corporation a Delaware corporation
doing business in Florida as
Realty Income Properties, Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ----------------------------
Date: July 20, 2001 Date: July 19, 2001
-------------------------- --------------------------
Signed, sealed, and delivered Signed, sealed, and delivered
this 20th day of July 2001 this 19th day of July 2001
in the presence of: in the presence of:
/s/ Xxxxx X. Xxxx /s/ Xxxxx Xxxxxxxx
------------------------------- -------------------------------
Witness Witness
/s/ Xxxxxx X. Xxxxxxx
------------------------------- _______________________________
Witness Witness
LAND AND BUILDING LEASE AGREEMENT
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
PREMISES LOCATION: 0000 Xxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, XX 00000
To be provided by Landlord.
LAND AND BUILDING LEASE AGREEMENT
EXHIBIT "B"
Recording requested by, and
after recording return to:
REALTY INCOME CORPORATION
Attn: Legal Department
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
MEMORANDUM OF LEASE
This Memorandum of Lease is made and entered into as of July 19, 2001 by
and between REALTY INCOME CORPORATION, a Maryland corporation doing business in
Florida as Realty Income Properties, Inc. ("Landlord") and X-XXXXX.XXX, INC., a
Delaware corporation ("Tenant") who agree as follows:
A. Terms and Premises. Landlord leases to Tenant and Tenant leases from
------------------
Landlord that certain real property, together with all the improvements thereon
and appurtenances thereunto belonging (the "Premises"), which legal description
is attached hereto and incorporated herein as Exhibit "A," commonly known as:
0000 XXXX XXXXXXXXX XXXXXXXXX
XXXXXXXXX XXXXX, XX 00000
upon the following terms:
1. Date of Lease: July 19, 2001.
2. Date of Commencement: July __, 2001.
3. Expiration of Lease: The last day of the month five (5) years
following the Rent Commencement Date (as such term is defined in the
Lease).
4. Extension Options: One (1) Five-Year Option to Extend.
5. Landlord hereby gives notice in accordance with Section 713.10,
Florida Statutes, that the Lease referenced herein contains language
substantially similar to the following:
Interests Not Subject to Mechanics' Liens. It expressly is covenanted
-----------------------------------------
and agreed that the interest of Landlord in the Premises shall not be
subject to liens for improvements made by Tenant, its successors,
assigns, or subtenants (collectively referred to herein as "Tenant").
No mechanic's lien shall lie against Landlord's interest in the
Premises, including buildings and all improvements located thereon,
arising through Tenant, and no person who furnished work, labor,
services, or materials to the Premises or the furniture, fixtures, or
equipment thereof at the request of Tenant shall acquire any lien
rights under Chapter 713, Florida Statutes, against the interest of
Landlord.
6. The purpose of the Memorandum of Lease is to give record notice of the
existence of said Lease and the rights created thereby, all of which
are confirmed, and the notice required by Section 713.10, Florida
Statutes.
B. Conflicts Between Lease and Memorandum. This Memorandum of Lease is
--------------------------------------
for information purposes only and nothing contained herein shall be deemed in
any way to modify or otherwise affect any of the terms and conditions of the
Lease, the terms of which are incorporated herein by reference. This instrument
is merely a Memorandum of Lease and is subject to all of the terms, provisions,
and conditions of the Lease. In the event of any inconsistency or conflicts
between the provisions of the Lease and this instrument, the provisions of the
Lease shall prevail. The rights and obligations set forth herein shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SIGNATURES APPEAR ON FOLLOWING PAGE.
LANDLORD: TENANT:
REALTY INCOME CORPORATION, X-XXXXX.XXX, INC.,
a Maryland corporation a Delaware corporation
doing business in Florida as
Realty Income Properties, Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ----------------------------
Date: July 20, 2001 Date: July 19, 2001
-------------------------- --------------------------
Signed, sealed, and delivered Signed, sealed, and delivered
this 20th day of July 2001 this 19th day of July 2001
in the presence of: in the presence of:
/s/ Xxxxx X. Xxxx /s/ Xxxxx Xxxxxxxx
------------------------------- -------------------------------
Witness Witness
/s/ Xxxxxx X. Xxxxxxx
------------------------------- _______________________________
Witness Witness
ATTACH A NOTARY ACKNOWLEDGMENT FOR ALL SIGNATURES.
