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EXHIBIT 10.4 CABOT INDUSTRIAL PROPERTIES L.P. LEASE
CABOT INDUSTRIAL PROPERTIES, L.P.
INDUSTRIAL REAL ESTATE LEASE
GALAXY FOODS COMPANY
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ARTICLE ONE - BASIC TERMS
The following terms used in this Lease shall have the meanings set forth below.
1.01 Date Of Lease: July ___, 1999
1.02 Landlord (legal entity): Cabot Industrial Properties, L.P.
1.03 Tenant (legal entity): Galaxy Foods Company, a Delaware
corporation
1.04 Tenant's Guarantor: None
1.05 Address of Property: Orlando Central Park VII
0000 Xxxxx Xxx, Xxxxxxx, Xxxxxxx 00000
1.06 Property Rentable Area: 267,432 square feet
1.07 Premises Rentable Area: 58,790 square feet
1.08 Tenant's Initial Pro Rata Share: 21.99%
1.09 Lease Term: Five (5) years beginning on the Lease
Commencement Date
1.10 Lease Commencement Date: November 1, 1999
1.11 Permitted Uses: General warehouse/storage facility with
related office uses and the
manufacturing of cheese and cheese
related products
1.12 Broker(s): Xxxxxx Properties, Inc.
Xxxxxxx & Wakefield
1.13 Initial Security Deposit: $35,313.19
1.14 Parking Spaces Allocated
to Tenant: Ample unassigned, unreserved spaces
1.15 Base Rent: See Exhibit H attached hereto
1.16 Other Charges Payable by Tenant:
(i) Real Property Taxes (Article Five);
(ii) Utilities (Article Six);
(iii) Insurance Premiums (Article Seven);
(iv) CAM Expenses (Article Eight);
1.17 Address of Landlord for Notices:
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
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1.18 Address of Tenant for Notices: 0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Attn: ______________
1.19 Fiscal Year: Calendar year
1.20 Exhibits:
Exhibit A - The Property
Exhibit B - The Premises
Exhibit C - Rules & Regulations
Exhibit D - Work Letter
Exhibit E - Memorandum of Acceptance of Premises
Exhibit F - Guaranty of Lease
Exhibit G - Hazardous Materials Disclosure Certificate
Exhibit H - Schedule of Base Rent
Exhibit I - Improvements
Exhibit J - Right to Negotiate Space
ARTICLE TWO - PREMISES
2.01 Premises. The Premises are described in Exhibit B and are a
part of the Property, which is described in Exhibit A. The Property includes all
the land, building(s), and all other improvements located on the land including
the common areas described in Article Eight.
ARTICLE THREE - LEASE TERM
3.01 Lease of Premises for Lease Term. Landlord leases the Premises
to Tenant and Tenant leases the Premises from Landlord for the Lease Term. The
Lease Term shall begin on the Lease Commencement Date.
3.02 Delay in Commencement. Landlord and Tenant hereby acknowledge
that the current lease for the Premises between Landlord and Ameriserve expires
October 31, 1999. Tenant is attempting to negotiate an agreement with Ameriserve
to obtain access to the Premises in advance of the expiration of Ameriserve's
lease. Provided Tenant is able to do so, and further provided that Tenant makes
the Premises accessible to Landlord for completion of the Improvements (defined
below) on or before the dates noted below, Landlord agrees to complete the
Improvements and deliver possession of the Premises to Tenant on the Lease
Commencement Date. If Tenant does not provide Landlord with access to the
Premises by the dates noted below, Landlord still shall make reasonable efforts
to deliver possession of the Premises to Tenant on the Lease Commencement Date,
but shall be under no obligation to do so. At a minimum, Landlord shall have 60
days from the date Tenant provides Landlord access to the Premises in which to
complete all of the Improvements except the repair of the floor in the warehouse
and cooler area and the construction of the demising wall; Landlord shall have
20 days from the date Tenant provides Landlord access to the warehouse and
cooler area in which to complete the repair of said floor, and 30 days from the
date Tenant provides Landlord access to the demising wall area of the Premises
in which to complete construction of same. Landlord shall not be liable to
Tenant if Landlord shall not deliver possession of the Premises to Tenant on the
Lease Commencement Date, unless Tenant provides Landlord access to the Premises
by September 1, 1999 (for all repairs except the warehouse and cooler area floor
and the demising wall) and by October 10, 1999 (for the warehouse and cooler
area floor), and by November 1, 1999 (for the
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demising wall) . If Tenant provides Landlord with access by the referenced dates
for said repairs, and Landlord has not completed the Improvements (except for
the demising wall) and delivered possession of the Premises to Tenant by the
Lease Commencement Date, same shall be postponed and Base Rent shall xxxxx in
the amount of $547.63 per day for each day until the Improvements (except for
the demising wall) are completed. If Tenant provides Landlord with access by the
referenced dates for said repairs, and Landlord has not completed the
Improvements and delivered possession of the Premises to Tenant by December 15,
1999 (subject to force majeure and Tenant delays) , Tenant may terminate this
Lease upon written notice delivered to Landlord by Friday, December 17, 1999.
Otherwise, delay in delivery of the Premises to Tenant shall not affect this
Lease or the obligations of Tenant under this Lease (except for the abatement of
rent as provided herein), the Lease Commencement Date shall not be postponed or
delayed, and Tenant's obligations hereunder shall commence thereon. In the event
the Lease Commencement Date is delayed, Landlord and Tenant shall execute an
amendment to this Lease setting forth the Lease Commencement Date and expiration
date of this Lease. Failure to execute such amendment shall not affect the Lease
Commencement Date and expiration date of this Lease. Notwithstanding the terms
hereof, if Landlord has not completed construction of all of the Improvements
except the repair of the floor in the warehouse and cooler area and the
construction of the demising wall within 60 days from the date Tenant delivers
access to same to Landlord, or if Landlord has not completed the repair to the
floor of the warehouse and cooler area within 20 days from the date Tenant
delivers access to same to Landlord, rent shall xxxxx in the amount $547.63 per
day for each day after the last day of the referenced time period (ie.,
beginning on the 61st day or the 21st day) until Landlord completes such work.
Further, Landlord and Tenant shall make reasonable efforts to obtain access to
the demising wall area as soon as possible following execution of this Lease; if
Landlord has not completed construction of the demising wall by November 1,
1999, and rent is not otherwise abated as provided above, rent shall xxxxx in
the amount of $37.26 per day from November 1, 1999, until the demising wall is
completed.
3.03 [Intentionally Omitted].
3.04 Holding Over. Tenant shall vacate the Premises upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages, costs, liabilities and expenses,
including attorneys' fees, which Landlord shall incur on account of Tenant's
delay in so vacating the Premises. If Tenant shall not vacate the Premises upon
the expiration or earlier termination of this Lease, the Base Rent shall be
increased to 150% of the Base Rent then in effect and Tenant's obligation to pay
Additional Rent shall continue, but nothing herein shall limit any of Landlord's
rights or Tenant's obligations arising from Tenant's failure to vacate the
Premises, including, without limitation, Landlord's right to repossess the
Premises and remove Tenant therefrom at any time after the expiration or earlier
termination of this Lease and Tenant's obligation to reimburse and indemnify
Landlord as provided in the preceding sentence.
ARTICLE FOUR - RENT
4.01 Base Rent. On the first day of each month during the Lease
Term, Tenant shall pay to Landlord the Base Rent in lawful money of the United
States, in advance and without offset, deduction, or prior demand. The Base Rent
shall be payable at Landlord's address or at such other place or to such other
person as Landlord may designate in writing from time to time.
4.02 Additional Rent. All sums payable by Tenant under this Lease
other than Base Rent shall be deemed "Additional Rent"; the term "Rent" or
"rent" shall mean Base Rent and Additional Rent. Landlord shall estimate in
advance and charge to Tenant the following costs, to be paid with the Base Rent
on a monthly basis throughout the Lease Term: (i) all Real Property Taxes for
which Tenant is liable under
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Section 5.01 and 5.02 of the Lease, (ii) all utility costs (if utilities are not
separately metered) for which Tenant is liable under Section 6.01 of the Lease,
(iii) all insurance premiums for which Tenant is liable under Sections 7.01 and
7.06 of the Lease and (iv) all CAM Expenses for which Tenant is liable under
Section 8.04 of the Lease. Collectively, the aforementioned Real Property Taxes,
insurance, utility, and CAM Expenses shall be referred to as the "Total
Operating Costs". Landlord may adjust its estimates of Total Operating Costs at
any time based upon Landlord's experience and reasonable anticipation of costs.
Such adjustments shall be effective as of the next Rent payment date after
notice to Tenant. Within one hundred twenty (120) days after the end of each
Fiscal Year during the Lease Term, Landlord shall deliver to Tenant a statement
prepared in accordance with generally accepted accounting principles setting
forth, in reasonable detail, the Total Operating Costs paid or incurred by
Landlord during the preceding fiscal year and Tenant's Pro Rata Share of such
expenses. Within thirty (30) days after Tenant's receipt of such statement,
there shall be an adjustment between Landlord and Tenant, with payment to or
credit given by Landlord (as the case may be) in order that Landlord shall
receive the entire amount of Tenant's share of such costs and expenses for such
period. In addition to its obligation to pay Base Rent and its Pro Rata Share of
Total Operating Expenses, Tenant is required hereunder to pay directly to
suppliers, vendors, carriers, contractors, etc. certain insurance premiums,
utility costs, personal property taxes, maintenance and repair costs and other
expenses, collectively "Additional Expenses." If Landlord pays for any
Additional Expenses in accordance with the terms of this Lease, Tenant's
obligation to reimburse such costs shall be an Additional Rent obligation
payable in full with the next monthly Rent payment. Unless this Lease provides
otherwise, Tenant shall pay all Additional Rent then due with the next monthly
installment of Base Rent. Tenant shall have the right to audit the books and
records of Landlord relating to Total Operating Costs for the Property. Any such
audit shall be conducted at the normal business situs of the books and records,
during normal business hours, in a manner which does not disrupt Landlord's
business. All information shall be kept confidential. In the event the audit
reveals a discrepancy, same shall be corrected as between the parties (with
payment or credit, as appropriate) within thirty (30) days. If the discrepancy
is in Landlord's favor and is greater than five percent (5%) of the Total
Operating Costs for the Property, Landlord shall reimburse Tenant for the actual
reasonable cost of the audit.
4.03 Late Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent and other amounts due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any loan secured by the Building. Accordingly, if any
installment of Rent or any other sums due from Tenant shall not be received by
Landlord within ten (10) days following the due date, Tenant shall pay to
Landlord a late charge equal to five percent (5%) of such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder.
4.04 Interest. Any Rent or other amount due to Landlord, if not
paid when due, shall bear interest from the date due until paid at the rate of
fifteen percent (15%) per annum or, if a higher rate is legally permissible, at
the highest rate legally permitted, provided that interest shall not be payable
on late charges incurred by Tenant nor on any amounts upon which late charges
are paid by Tenant to the extent such interest would cause the total interest to
be in excess of that legally permitted. Payment of interest shall not excuse or
cure any default hereunder by Tenant.
4.05 Tenant's Pro Rata Share. Tenant's Pro Rata Share shall be
calculated by dividing the Premises Rentable Area by the Property Rentable Area,
which is leased or held for lease by tenants, as of the date on which the
computation shall be made. Tenant's Initial Pro Rata Share is set forth in
Section 1.08 and
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is subject to adjustment based on the aforementioned formula. The Property
Rentable Area may be adjusted only because of a condemnation of a portion of the
Property or a casualty causing damage which is not rebuilt or which prevents the
use of a portion of the Property.
4.06 Dishonored Checks. If Tenant's check for the payment of Rent
is dishonored by Tenant's bank, the amount due shall be subject to a Late
Charge. Tenant also shall pay Landlord an administrative fee for each dishonored
check in the amount of One Hundred and 00/100 Dollars ($100.00). If two (2) of
Tenant's checks are dishonored during the Lease Term, Landlord may require that
all future payments by Tenant be made by cashiers check, money order or wire
transfer of funds.
ARTICLE FIVE - PROPERTY TAXES
5.01 Real Property Taxes. Tenant shall pay Tenant's Pro Rata Share
of Real Property Taxes on the Property payable during the Lease Term. Tenant
shall make such payments in accordance with Section 4.02. If Landlord shall
receive a refund of any Real Property Taxes with respect to which Tenant shall
have paid Tenant's Pro Rata Share, Landlord shall refund to Tenant Tenant's Pro
Rata Share of such refund after deducting therefrom the costs and expenses
incurred in connection therewith.
5.02 Definition of "Real Property Tax". "Real Property Tax" shall
mean taxes, assessments (special, betterment, or otherwise), levies, fees, rent
taxes, excises, impositions, charges, and all other government levies and
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, which are imposed or levied upon or assessed against the Property or
any Rent or other sums payable by any tenants or occupants thereof. Real
Property Tax shall not include income, franchise, gross receipts, excise,
rental, transfer, gift, inheritance, estate, or capital stock taxes. Real
Property Tax shall include Landlord's costs and expenses of contesting any Real
Property Tax. Landlord shall notify Tenant if it is going to contest any Real
Property Tax. If Tenant feels that Landlord should contest a Real Property Tax,
Tenant may petition Landlord to do so. Landlord immediately shall review such
request, and advise Tenant whether it will proceed with a contest; provided,
however, in no event shall Landlord be required to contest a Real Property Tax
more frequently than once every three (3) years. If at any time during the term
the present system of ad valorem taxation of real property shall be changed so
that in lieu of the whole or any part of the ad valorem tax on real property, or
in lieu of increases therein, there shall be assessed on Landlord a capital levy
or other tax on the gross rents received with respect to the Property or a
federal, state, county, municipal, or other local income, franchise, excise or
similar tax, assessment, levy, or charge (distinct from any now in effect)
measured by or based, in whole or in part, upon gross rents, then all of such
taxes, assessments, levies, or charges, to the extent so measured or based,
shall be deemed to be a Real Property Tax.
5.03 Personal Property Taxes. Tenant shall pay directly all taxes
charged against trade fixtures, furnishings, equipment, inventory, or any other
personal property belonging to Tenant. Tenant shall use its best efforts to have
personal property taxed separately from the Property. If any of Tenant's
personal property shall be taxed with the Property, Tenant shall pay Landlord
the taxes for such personal property within fifteen (15) days after Tenant
receives a written statement from Landlord for such personal property taxes;
Landlord shall deliver to Tenant such statement not less than 30 days prior to
the date Landlord intends to file the tax return for the Property. Tenant shall,
upon request, deliver to Landlord paid tax receipts evidencing Tenant's timely
payment of all taxes assessed upon Tenant's personal property.
ARTICLE SIX - UTILITIES
6.01 Utilities. Tenant shall promptly pay, directly to the
appropriate supplier, the cost of all natural gas, heat, cooling, energy, light,
power, sewer service, telephone, water, refuse disposal and other
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utilities and services supplied to the Premises, allocable to the period from
the time Tenant shall first enter the Premises, throughout the Lease Term and
thereafter as long Tenant shall remain in the Premises (collectively, "the
Occupancy Period"), together with any related installation or connection charges
or deposits (collectively "Utility Costs"). If any services or utilities are
jointly metered with other premises, Landlord shall make a reasonable
determination of Tenant's proportionate share of such Utility Costs and Tenant
shall pay such share to Landlord in accordance with Section 4.02. Landlord shall
not be liable for damages, consequential or otherwise, nor shall there be any
rent abatement arising out of any curtailment or interruption whatsoever in
utility services, unless same results from Landlord's negligence or willful
misconduct. Utilities serving the Common Areas (as defined in Article Eight)
exclusively shall be accounted for as described in Article Eight.
ARTICLE SEVEN - INSURANCE
7.01. Liability Insurance. During the Occupancy Period, Tenant shall
maintain in effect commercial general liability insurance insuring Tenant
against liability for bodily injury, property damage (including loss of use of
property) and personal injury at the Premises, including contractual liability.
Such insurance shall name Landlord, its property manager, any mortgagee, and
Cabot Industrial Trust as additional insureds. The initial amount of such
insurance shall be Five Million and 00/100 Dollars ($5,000,000.00) per
occurrence and shall be subject to periodic increases specified by Landlord
based upon inflation, increased liability awards, recommendation of Landlord's
professional insurance advisers, and other relevant factors. The liability
insurance obtained by Tenant under this Section 7.01 shall (i) be primary and
(ii) insure Tenant's obligations to Landlord under Section 7.09. The amount and
coverage of such insurance shall not limit Tenant's liability nor relieve Tenant
of any other obligation under this Lease. Landlord shall obtain commercial
general liability insurance in an amount and with coverage determined by
Landlord insuring Landlord against liability with respect to the Property. The
policy obtained by Landlord shall not provide primary insurance, shall not be
contributory and shall be excess over any insurance maintained by Tenant.
7.02 Worker's Compensation Insurance. During the Occupancy Period,
Tenant shall maintain in effect Worker's Compensation Insurance (including
Employers' Liability Insurance) in the statutory amount covering all employees
of Tenant employed or performing services at the Premises, in order to provide
the statutory benefits required by the laws of the state in which the Premises
are located.
7.03 Automobile Liability Insurance. During the Occupancy Period,
Tenant shall maintain in effect Automobile Liability Insurance, including but
not limited to, passenger liability, on all owned, non-owned, and hired vehicles
used in connection with the Premises, with a combined single limit per
occurrence of not less than One Million and 00/100 Dollars ($1,000,000.00) for
injuries or death of one or more persons or loss or damage to property.
7.04 Personal Property Insurance. During the Occupancy Period,
Tenant shall maintain in effect Personal Property Insurance covering leasehold
improvements paid for by Tenant and Tenant's personal property and fixtures from
time to time in, on, or at the premises, in an amount not less than 100% of the
full replacement cost, without deduction for depreciation, providing protection
against events protected under "All Risk Coverage," as well as against sprinkler
damage, vandalism, and malicious mischief. Any proceeds from the Personal
Property Insurance shall be used for the repair or replacement of the property
damaged or destroyed, unless this Lease is terminated under an applicable
provision herein. If the Premises are not repaired or restored following damage
or destruction in accordance with other provisions herein, Landlord shall
receive any proceeds from the Personal Property Insurance allocable to Tenant's
leasehold improvements.
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7.05 Business Interruption Insurance. During the Occupancy Period,
Tenant shall maintain in effect Business Interruption Insurance, providing in
the event of damage or destruction of the Premises an amount sufficient to
sustain Tenant for a period of not less than one (1) year for: (i) the net
profit that would have been realized had Tenant's business continued; and (ii)
such fixed charges and expenses as must necessarily continue during a total or
partial suspension of business to the extent to which they would have been
incurred had no business interruption occurred, including, but not limited to,
interest on indebtedness of Tenant, salaries of executives, foremen, and other
employees under contract, charges under noncancelable contracts, charges for
advertising, legal or other professional services, taxes and rents that may
still continue, trade association dues, insurance premiums, and depreciation.
7.06 Landlord's Property and Rental Income Insurance. During the
Lease Term, Landlord shall maintain in effect all risk insurance covering loss
of or damage to the Property in the amount of its replacement value with such
endorsements and deductibles as Landlord shall determine from time to time.
Landlord shall have the right to obtain flood, earthquake, and such other
insurance as Landlord shall determine from time to time or shall be required by
any lender holding a security interest in the Property. Landlord shall not
obtain insurance for Tenant's fixtures or equipment or building improvements
installed by Tenant. During the Lease Term, Landlord shall also maintain a
rental income insurance policy, with loss payable to Landlord, in an amount
equal to one (1) year's Base Rent, plus estimated Real Property Taxes, CAM
Expenses, Utility Costs and insurance premiums for one (1) year. Tenant shall
not do or permit anything to be done which shall invalidate any such insurance.
Any increase in the cost of Landlord's insurance due to Tenant's use or
activities at the Premises shall be paid by Tenant to Landlord as Additional
Rent hereunder.
7.07 Payment of Insurance Premiums. Landlord shall pay the premiums
of the insurance policies maintained by Landlord under Section 7.06 and Section
7.01 (if applicable), and Tenant shall reimburse Landlord for Tenant's Pro Rata
Share of such premiums in accordance with Section 4.02. Tenant shall pay
directly the premiums of the insurance policies maintained by Tenant under
Sections 7.01, 7.02, 7.03, 7.04, and 7.05.
7.08 General Insurance Provisions.
7.08 (a) Any insurance which Tenant shall be required to
maintain under this Lease shall include a provision which requires the insurance
carrier to give Landlord not less than thirty (30) days' written notice prior to
any cancellation or modification of such coverage.
7.08 (b) Prior to the Lease Commencement Date, Tenant
shall deliver to Landlord an insurance company certificate that Tenant maintains
the insurance required by Sections 7.01, 7.02, 7.03, 7.04 and 7.05 and not less
than thirty (30) days prior to the expiration or termination of any such
insurance, Tenant shall deliver to Landlord renewal certificates therefor.
Tenant shall provide Landlord with copies of the policies promptly upon request
from time to time. If Tenant shall fail to deliver any certificate or renewal
certificate to Landlord required under this Lease within the prescribed time
period or if any such policy shall be canceled or modified in any material
adverse way during the Lease Term without Landlord's consent, Landlord may
obtain such insurance, in which case Tenant shall reimburse Landlord, as
Additional Rent, for 110% of the cost of such insurance within ten (10) days
after receipt of a statement of the cost of such insurance.
7.08 (c) Tenant shall maintain all insurance required
under this Lease with companies having a "General Policy Rating" of A - X or
better, as set forth in the most current issue of the Best Key Rating Guide.
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7.08 (d) Landlord and Tenant, on behalf of themselves and
their insurers, each hereby waive any and all rights of recovery against the
other, the officers, members, partners, employees, agents, or representatives of
the other and the officers, members, partners, employees, agents or
representatives of each of the foregoing, for loss of or damage to its property
or the property of others under its control, if such loss or damage shall be
covered by any insurance policy in force (whether or not described in this
Lease) at the time of such loss or damage, or required to be carried under this
Article Seven. All property insurance carried by either party shall contain a
waiver of subrogation against the other party to the extent such right shall
have been waived by the insured party prior to the occurrence of loss or injury.
7.09 Indemnity. To the fullest extent permitted by law, Tenant
hereby waives all claims against Landlord, its agents, advisors, employees,
members, officers, directors, partners, trustees, beneficiaries and shareholders
(each a "Landlord Party") and the agents, advisors, employees, members,
officers, directors, partners, trustees, beneficiaries and shareholders of each
Landlord Party (collectively "the Indemnitees") for damage to any property or
injury to or death of any person in, upon or about the Premises or the Property
arising at any time and from any cause (other than Landlord's negligence or
willful misconduct), and Tenant shall hold Indemnitees harmless from and defend
Indemnitees from and against all claims, liabilities, judgements, demands,
causes of action, losses, damages, costs and expenses including reasonable
attorney's fees for damage to any property or injury to or death of any person
arising in or from (i) the use or occupancy of the Premises by Tenant or persons
claiming under Tenant, except such as is caused by the negligence or willful
misconduct of Landlord, its agents, employees or contractors, or (ii) arising
from the negligence or willful misconduct of Tenant, its employees, agents,
contractors, or invitees in, upon or about the Property, or (iii) arising out of
any breach or default by Tenant under this Lease. The foregoing shall include
investigation costs and expenses incurred by Landlord in connection with any
claim or demand made under this Section. The provisions of this Section 7.09
shall survive the expiration or termination of this Lease with respect to any
damage, injury, or death occurring prior to such time.
ARTICLE EIGHT - COMMON AREAS
8.01 Common Areas. As used in this Lease, "Common Areas" shall mean
all areas within the Property which are available for the common use of tenants
of the Property and which are not leased or held for the exclusive use of Tenant
or other tenants, including, but not limited to, parking areas, driveways,
sidewalks, access roads, landscaping, and planted areas. Landlord, from time to
time, may change the size, location, nature, and use of any of the Common Areas,
convert Common Areas into leaseable areas, construct additional parking
facilities (including parking structures) in the Common Areas, and increase or
decrease Common Area land or facilities. Tenant acknowledges that such
activities may result in inconvenience to Tenant. Such activities and changes
are permitted if they do not materially affect Tenant's use of the Premises or
the parking facilities.
8.02 Use of Common Areas. Tenant shall have the non-exclusive right
(in common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations ("Rules and Regulations") as Landlord may
establish or modify from time to time and as initially set forth in Exhibit C.
Tenant shall abide by all such Rules and Regulations and shall use its best
efforts to cause others who use the Common Areas with Tenant's express or
implied permission to abide by Landlord's Rules and Regulations. At any time,
Landlord may close any Common Areas to perform any acts in the Common Areas as,
in Landlord's reasonable judgement, are desirable to maintain or improve the
Property. Tenant shall not interfere with the rights of Landlord, other tenants,
or any other person entitled to use the Common Areas.
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8.03 Vehicle Parking. Tenant shall be entitled to use the Parking
Spaces Allocated to Tenant without paying any additional Rent. Tenant's parking
shall not be reserved and shall be limited to vehicles no larger than standard
size automobiles or pickup utility vehicles. Tenant shall not cause large trucks
or other large vehicles to be parked within the Property or on the adjacent
public streets except in accordance with the Rules and Regulations; Tenant may
park its trucks in its bays overnight if necessary. Vehicles shall be parked
only in striped parking spaces and not in driveways or other locations not
specifically designated for parking. Handicapped spaces shall only be used by
those legally permitted to use them. Tenant shall not park at any time more
vehicles in the parking area than the number permitted under applicable building
code provisions based on the square footage of the Premises. Landlord agrees
that it shall not designate any spaces immediately adjacent to the Premises as
being reserved or restricted (other than restrictions for handicapped parking).
8.04 Common Area Maintenance. Subject to Articles Eleven and
Twelve, Landlord shall maintain the Common Areas in good order, condition, and
repair. Common Area Maintenance expenses ("CAM Expenses") are all costs and
expenses associated with the operation and maintenance of the Common Areas and
the repair and maintenance of the heating, ventilation, air conditioning,
plumbing, electrical, utility, and safety systems (to the extent not performed
by Tenant), including, but not limited to, the following: gardening and
landscaping; snow removal; utility, water and sewage services for the Common
Area; maintenance of signs (other than tenants' signs); worker's compensation
insurance; personal property taxes; rentals or lease payments paid by Landlord
for rented or leased personal property used in the operation or maintenance of
the Common Areas; fees for required licenses and permits; routine maintenance
and repair of roof membrane, flashings, gutters, downspouts, roof drains,
skylights and waterproofing; maintenance of paving (including sweeping,
striping, repairing, resurfacing, and repaving); general maintenance; painting;
lighting; cleaning; refuse removal; security and similar items; reasonable
reserves for exterior painting and other appropriate reasonable reserves; and a
property management fee (not to exceed three and one-half percent (3.5%) of the
gross rents of the Property for the calendar year). CAM Expenses do not include
(a) principal and interest payable by Landlord on any obligation secured by any
encumbrance on the Property or any leasehold interest of Landlord or principal
and interest payable by Landlord in connection with any other obligation
incurred by Landlord with respect to the Property , or portion thereof; (b)
costs, expenses or disbursements for services or facilities provided to a
particular tenant or occupant of the Property, including Landlord; (c) costs and
expenses incurred by Landlord to procure tenants for the Property, including but
not limited to brokerage commissions, architectural, engineering or legal fees,
and advertising or remodeling costs relating to the space leased; (d) costs and
expenses attributable to enforcing leases against tenants in the Property,
including but not limited to attorneys' fees, court costs, and adverse
judgments; (e) any costs, fines or penalties due to violations by Landlord of
any governmental rule or authority; (f) the cost of correcting any code
violations that occurred prior to commencement of the Lease term; (g) moving or
relocation; and (h) general overhead, including allocated overhead of Landlord,
its general partners or their affiliates, including but not limited to
compensation and other benefits for staff and management personnel other than
staff and management personnel employed, engaged or retained specifically in
connection with the management and operation of the Property. Landlord may cause
any or all of such services to be provided by third parties and the cost of such
services shall be included in CAM Expenses. With respect to any CAM Expenses
which are included for the benefit of the Property and other property, Landlord
shall make a reasonable allocation of such cost between the Property and such
other property. CAM Expenses shall not include: (a) the cost of capital repairs
and replacements, provided, however, that the annual depreciation (based on the
useful life of the item under generally accepted accounting principles) of any
such capital repair or replacement to the Common Areas or the heating,
ventilating, air-conditioning, plumbing, electrical, utility and safety systems
serving the Property shall be included in the Cam Expenses each year during the
term of this Lease; and (b) the cost of capital improvements, provided, however,
that the annual depreciation (based on the useful life of the item under
generally accepted accounting principles) of any
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capital improvement undertaken to reduce CAM Expenses or made in order to comply
with legal requirements shall be included in CAM Expenses each year during the
term of this Lease.
8.05 Tenant's Payment of CAM Expenses. Tenant shall pay Tenant's
Pro Rata Share of all CAM Expenses in accordance with Section 4.02.
ARTICLE NINE - USE OF PREMISES
9.01 Permitted Uses. Tenant may use the Premises only for the
Permitted Uses.
9.02 Manner of Use. Tenant shall not cause or permit the Premises
to be used in any way which shall constitute a violation of any law, ordinance,
restrictive covenants, governmental regulation or order, which shall materially
annoy or interfere with the rights of tenants of the Property, or which shall
constitute a nuisance or waste. Tenant shall obtain and pay for all permits,
including a certificate of occupancy and shall promptly take all actions
necessary to comply with all applicable statutes, ordinances, notes,
regulations, orders, covenants and requirements regulating the use by Tenant of
the Premises, including the Occupational Safety and Health Act and the Americans
With Disabilities Act. Upon delivery of the Premises to Tenant same shall be in
compliance with all applicable statutes, ordinances, notes, regulations, orders,
covenants and requirements. Thereafter, Tenant shall be responsible for
compliance with regard to interior items and Landlord shall be responsible for
compliance with regard to exterior items.
9.03 Hazardous Materials. Prior to executing this Lease, Tenant has
completed, executed and delivered to Landlord a Hazardous Materials Disclosure
Certificate ("Initial Disclosure Certificate"), a fully completed copy of which
is attached hereto as Exhibit G and incorporated herein by this reference.
Tenant covenants, represents and warrants to Landlord that the information on
the Initial Disclosure Certificate is true and correct and accurately describes
all Hazardous Materials (as defined below) which will be manufactured, treated,
used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant
shall on each anniversary of the Commencement Date and at such other times as
Tenant desires to manufacture, treat, use or store on or about the Premises new
or additional Hazardous Materials which were not listed on the Initial
Disclosure Certificate, complete, execute and deliver to Landlord an updated
Disclosure Certificate (each, an "Updated Disclosure Certificate") describing
Tenant's then current and proposed future uses of Hazardous Materials on or
about the Premises, which Updated Disclosure Certificate shall be in the same
format as that which is set forth in Exhibit G or in such updated format as
Landlord may require from time to time. Tenant shall deliver an Updated
Disclosure Certificate to Landlord not less than thirty days prior to the date
Tenant intends to commence the manufacture, treatment, use or storage of new or
additional Hazardous Materials on or about the Premises, and Landlord shall have
the right to approve or disapprove such new or additional Hazardous Materials in
its sole and absolute discretion. Tenant shall make no use of Hazardous
Materials on or about the Premises except (i) as described in the Initial
Disclosure Certificate, (ii) for minimal amounts of cleaning products used in
the ordinary course of Tenant's business, or (iii) as otherwise approved by
Landlord in writing in accordance with this Section 9.03. Landlord is not aware
of any contamination of the Premises; Landlord shall be responsible for
addressing any contamination of the Premises which occurred prior to the Lease
Commencement Date.
As used in this Lease, the term "Hazardous Material" shall mean any
flammable items, explosives, radioactive materials, oil, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials" or "toxic substances" now or subsequently
regulated under any applicable federal, state or local laws or regulations,
including without limitation petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and
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similar compounds, and including any different products and materials which are
subsequently found to have adverse effects on the environment or the health and
safety of persons. Tenant shall not cause or permit any Hazardous Material to be
generated, produced, brought upon, used, stored, treated or disposed of in or
about the Property by Tenant, its agents, employees, contractors, sublessees or
invitees without (a) the prior written consent of Landlord, and (b) complying
with all applicable Federal, State and Local laws or ordinances pertaining to
the transportation, storage, use or disposal of such Hazardous Materials,
including but not limited to obtaining proper permits. Landlord shall be
entitled to take into account such other factors or facts as Landlord may
reasonably determine to be relevant in determining whether to grant or withhold
consent (or revoke) to Tenant's proposed activity with respect to Hazardous
Material. In no event, however, shall Landlord be required to consent to the
installation or use of any storage tanks on the Property.
If Tenant's transportation, storage, use or disposal of Hazardous
Materials on the Premises results in the contamination of the soil or surface or
ground water or loss or damage to person(s) or property, then Tenant agrees to:
(a) notify Landlord immediately of any contamination, claim of contamination,
loss or damage, (b) after consultation with the Landlord, clean up the
contamination in full compliance with all applicable statutes, regulations and
standards and (c) indemnify, defend and hold Landlord harmless from and against
any claims, suits, causes of action, costs and fees, including attorney's fees
and costs, arising from or connected with any such contamination, claim of
contamination, loss or damage. Tenant agrees to fully cooperate with Landlord
and provide such documents, affidavits and information as may be requested by
Landlord (i) to comply with any environmental law, (ii) to comply with the
request of any lender, purchaser or tenant, and/or (iii) for any other reason
deemed necessary by Landlord in its reasonable discretion. Tenant shall notify
Landlord promptly in the event of any spill or other release of any Hazardous
Material at, in, on, under or about the Premises which is required to be
reported to a governmental authority under any environmental law, will promptly
forward to Landlord copies of any notices received by Tenant relating to alleged
violations of any environmental law and will promptly pay when due any fine or
assessment against Landlord, Tenant or the Premises relating to any violation of
an environmental law during the term of this Lease. If a lien is filed against
the Premises by any governmental authority resulting from the need to expend or
the actual expending of monies arising from an act or omission, whether
intentional or unintentional, of Tenant, its agents, employees or invitees, or
for which Tenant is responsible, resulting in the releasing, spilling, leaking,
leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous
Material into the waters or onto land located within or without the State where
the Premises is located, then Tenant shall, within thirty (30) days from the
date that Tenant is first given notice that such lien has been placed against
the Premises (or within such shorter period of time as may be specified by
Landlord if such governmental authority has commenced steps to cause the
Premises to be sold pursuant to such lien) either (i) pay the claim and remove
the lien, or (ii) furnish a cash deposit, bond, or such other security with
respect thereto as is satisfactory in all respects to Landlord and is sufficient
to effect a complete discharge of such lien on the Premises. Landlord shall have
the right, but not the obligation, without in any way limiting Landlord's other
rights and remedies under this Lease, to enter upon the Premises, or to take
such other actions as it deems necessary or advisable, to investigate, clean up,
remove or remediate any Hazardous Materials or contamination by Hazardous
Materials present on, in, at, under or emanating from the Premises or the
Property in violation of Tenant's obligations under this Lease or under any laws
regulating Hazardous Materials. Notwithstanding any other provision of this
Lease, Landlord shall have the right, at its election, in its own name or as
Tenant's agent, to negotiate, defend, approve and appeal, at Tenant's expense,
any action taken or order issued by any governmental agency or authority with
any governmental agency or authority against Tenant, Landlord or the Premises or
Property relating to any Hazardous Materials or under any related law or the
occurrence of any event or existence of any condition that would cause a breach
of any of the covenants set forth in this Section 9.03. Prior to or promptly
after the expiration or termination of this Lease, Landlord may require an
environmental audit of the Premises by a qualified environmental consultant. If
such audit reveals that Tenant was responsible for any contamination, Tenant
shall pay the costs of such
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an environmental audit and shall, at it sole cost and expense, take all actions
recommended in such audit to remediate any environmental conditions. The
provisions of this Section 9.03 shall survive the expiration or earlier
termination of this Lease.
9.04 Signs and Auctions. Tenant shall not place any signs on the
Property without Landlord's prior written consent. If such consent is granted,
Tenant shall remove all such signs upon the expiration of this Lease and
promptly repair any resulting damage to the Property. Tenant shall not conduct
or permit any auctions or sheriff's sales at the Property.
9.05 Landlord's Access. Landlord or its agents may enter the
Premises during normal business hours to show the Premises to potential buyers,
investors or tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material; or for any other purpose Landlord deems necessary. Landlord shall give
Tenant prior notice (which may be oral) of such entry, except in the case of an
emergency, in which event Landlord shall make reasonable efforts to notify
Tenant. Landlord may place customary "For Sale" or "For Lease" signs on the
Premises; "For Lease" signs may be placed on the Premises only during the last 6
months of the Lease Term.
ARTICLE TEN - CONDITION AND MAINTENANCE OF PREMISES
10.01 Existing Conditions. Except as provided in Section 17.22 below
or the Work Letter attached hereto as Exhibit D, if applicable, Tenant shall
accept the Property and the Premises in their condition as of the execution of
the Lease, subject to all recorded matters, laws, ordinances, and governmental
regulations and orders. Except as provided herein, Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation as to the
condition of the Property or the suitability of the Property for Tenant's
intended use. Tenant represents and warrants that Tenant has made its own
inspection of and inquiry regarding the condition of the Property and is not
relying on any representations of Landlord or any Broker with respect thereto.
Tenant agrees to execute promptly a Memorandum of Acceptance of Premises in the
form set forth in Exhibit E to this Lease. Landlord shall warrant the
workmanship of the Improvements for 90 days, and the materials used in the
Improvements for one (1) year.
10.02 Exemption of Landlord from Liability. Tenant shall insure its
personal property under an all risk full replacement cost property insurance
policy as provided in Section 7.04. Landlord shall not be liable for any damage
or injury to the person, business (or any loss of income therefrom), goods,
wares, merchandise or other property of Tenant, Tenant's employees, invitees,
customers or any other person or about the Property, whether such damage or
injury is caused by or results from: (a) fire, steam, electricity, water, gas or
rain; (b) the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
or any other cause; (c) conditions arising in or about Property, or from other
sources or places; or (d) any act or omission of any other tenant of the
Property. Tenant shall give Landlord prompt notice upon the occurrence of any
accident or casualty at the Premises. Landlord shall not be liable for any such
damage or injury even though the cause of or the means of repairing such damage
or injury are not accessible to Tenant. The provisions of this Section 10.02
shall not, however, exempt Landlord from liability for Landlord's negligence or
willful misconduct.
10.03 Landlord's Obligations. Subject to the provisions of Article
Eleven (Damage or Destruction) and Article Twelve (Condemnation), and except for
damage caused by any act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, Landlord shall keep the foundation, roof, building
systems (other than the heating, ventilating and air conditioning system),
structural supports and exterior walls of the improvements on the Property in
good order, condition and repair. The heating, ventilating and
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air conditioning system shall be maintained, repaired and/or replaced as
provided in Section 10.04 below. Landlord shall not be obligated to maintain or
repair windows, doors, plate glass or the surfaces of walls. Tenant shall
promptly report in writing to Landlord any defective condition known to it which
Landlord is required to repair. Immediately after receipt of such notice
Landlord shall commence to correct such defective condition and shall diligently
pursue same to completion. Except as specifically provided in this Lease, Tenant
hereby waives the benefit of any present or future law which provides Tenant the
right to repair the Premises or Property at Landlord's expense or to terminate
this Lease because of the condition of the Property or Premises.
10.04 Tenant's Obligations.
10.04 (a) Repair and Maintenance. Except as provided in
Section 10.03, Article Eleven (Damage or Destruction) and Article Twelve
(Condemnation), Tenant shall keep all portions of the Premises (including
systems and equipment) and the heating, ventilating and air conditioning system
in good order, condition and repair (including repainting and refinishing, as
needed). If any portion of the Premises or any system or equipment in the
Premises which Tenant shall be obligated to repair can not be fully repaired or
restored, Tenant shall promptly replace such portion of the Premises or system
or equipment, regardless of whether the benefit of such replacement extends
beyond the Lease Term; but if the benefit or useful life of such replacement
extends beyond the Lease Term, the useful life of such replacement shall be
prorated over the remaining portion of the Lease Term. Tenant may maintain a
preventive maintenance program providing for the regular inspection and
maintenance of the heating and air conditioning system by its qualified
personnel; if Tenant fails to do so, Tenant shall be required to maintain a
preventive maintenance program providing for the regular inspection and
maintenance of the heating and air conditioning system by a heating and air
conditioning contractor, such contract and such contractor to be approved by
Landlord. Landlord shall, at Tenant's expense, repair any damage to the portions
of the Property Landlord shall be required to maintain caused by Tenant's acts
or omissions. In addition, Tenant shall, at Tenant's expense, repair any damage
to the roof, foundation or structural portions of walls caused by Tenant's
negligence or its acts or omissions. It is the intention of Landlord and Tenant
that, at all times during the Lease Term, Tenant shall maintain the Premises in
an attractive, first-class and fully operative condition.
10.04 (b) Tenant's Expense. Tenant shall fulfill all of
Tenant's obligations under this Section 10.04 at Tenant's sole expense. If
Tenant shall fail to maintain, repair or replace the Premises as required by
this Section 10.04, Landlord may, upon ten (10) days' prior written notice to
Tenant (except that no notice shall be required in the case of an emergency),
enter the Premises and perform such maintenance or repair (including
replacement, as needed) on behalf of Tenant. In such case, Tenant shall
reimburse Landlord for all costs reasonably incurred in performing such
maintenance, repair or replacement immediately upon demand.
10.04 (c) Limitations. Notwithstanding anything to the
contrary set forth in this Section 10.04 or this Lease, the provisions hereof do
not give and shall not be construed as giving Tenant permission to alter or
interfere with the structure or exterior of the Building.
10.05 Alterations, Additions, and Improvements.
10.05 (a) Tenant's Work. Tenant shall not make any
installations, alterations, additions, or improvements in or to the Premises,
including, without limitation, any apertures in the walls, partitions, ceilings
or floors, without on each occasion obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or
conditioned; provided, however, that Tenant may make up to $25,000.00 per year
(which amount shall not accrue from year to year) in non-structural, non-system
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improvements to the Premises without first obtaining Landlord's consent. In
every instance Tenant shall give prior written notice to Landlord of the
improvement(s) to be constructed; in those situations where Landlord must
approve the proposed work, Landlord shall respond to Tenant's written request
regarding same within ten (10) business days of receipt of the request. Any such
work so approved by Landlord shall be performed only in accordance with plans
and specifications therefor approved by Landlord. Tenant shall procure at
Tenant's sole expense all necessary permits and licenses before undertaking any
work on the Premises and shall perform all such work in a good and workmanlike
manner employing materials of good quality and so as to conform with all
applicable zoning, building, fire, health and other codes, regulations,
ordinances and laws and with all applicable insurance requirements. If requested
by Landlord, Tenant shall furnish to Landlord prior to commencement of any such
work a bond or other security acceptable to Landlord assuring that any work by
Tenant will be completed in accordance with the approved plans and
specifications and that all subcontractors will be paid. Tenant shall employ for
such work only contractors approved by Landlord and shall require all
contractors employed by Tenant to carry worker's compensation insurance in
accordance with statutory requirements and commercial general liability
insurance covering such contractors on or about the Premises with a combined
single limit not less than Three Million and 00/100 Dollars ($3,000,000.00) and
shall submit certificates evidencing such coverage to Landlord prior to the
commencement of such work. Tenant shall indemnify and hold harmless Landlord
from all injury, loss, claims or damage to any person or property occasioned by
or growing out of such work. Landlord may inspect the work of Tenant at
reasonable times and given notice of observed defects. Upon completion of any
such work, Tenant shall provide Landlord with "as built" plans, copies of all
construction contracts and proof of payment for all labor and materials.
10.05 (b) No Liens. Tenant shall pay when due all claims for
labor and material furnished to the Premises and shall at all times keep the
Property free from liens for labor and materials. Tenant shall give Landlord at
least twenty (20) days' prior written notice of the commencement of any work on
the Premises, regardless of whether Landlord's consent to such work is required.
Landlord may record and post notices of non-responsibility on the Premises.
10.05 (c) No Authority. Nothing contained in this Section
10.05, or this Lease, shall authorize Tenant to do any act which may create or
be the foundation for any lien, mortgage or other encumbrance upon the
reservation or other estate of Landlord, or of any interest of Landlord in the
Premises, the Building, or in the Property or improvements thereof; it being
agreed that should Tenant cause any alterations, changes, additions,
improvements or repairs to be made in the Premises, or cause materials to be
furnished or labor to be performed therein, neither Landlord nor the Premises
shall, under any circumstances, be liable for the payment of any expenses
incurred or for the value of any work done or material furnished to the Premises
or any part thereof. Tenant shall, upon request of Landlord, deliver such
documents as may be required by Landlord in order to effectuate the lien
protection required by this Section, all such alterations, changes, additions,
improvements and repairs and materials and labor shall be at Tenant's expense
and Tenant shall be solely and wholly responsible to contractors, laborers and
materialmen furnishing labor and materials to the Premises, or any part thereof.
Tenant shall inform every service or material provider of the foregoing
provisions prior to contracting with any of them for goods or services.
10.05 (d) Discharge. Tenant shall discharge or transfer to
bond any lien filed against the Premises, the Building or the Property, or any
part thereof, for work done or materials furnished at Tenant's request with
respect to the Premises within ten (10) business days after such lien is filed.
The failure of Tenant to do so shall be a material default hereunder. If Tenant
fails to keep this covenant, in addition to any other remedies available to
Landlord under this Lease, Tenant agrees to pay Landlord, as Additional Rent,
the sum equal to the amount of the lien thus discharged by Landlord, plus all
reasonable costs and expenses, including without limitation reasonable
attorney's and paralegal's fees and court costs, incurred by Landlord in
discharging such lien.
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10.06 Condition upon Termination. Upon the expiration or termination
of this Lease, Tenant shall surrender the Premises to Landlord broom clean and
in the condition which Tenant shall have been required to maintain the Premises
under this Lease, ordinary wear and tear and damage from casualty and
condemnation excepted. Tenant shall not be obligated to repair any damage which
Landlord is required to repair under Article Eleven (Damage or Destruction) or
to restore the Premises if this Lease is terminated under Article Eleven or
Article Twelve. Landlord may require Tenant to remove any alterations, additions
or improvements (whether or not made with Landlord's consent) prior to the
expiration of the Lease and to restore the Premises to their prior condition,
all at Tenant's expense. With respect to any alterations, additions or
improvements which require Landlord's approval, at the time of such approval
Landlord shall specify if Tenant shall not be required to remove the same, and
such items shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or earlier termination of the Lease, except that Tenant may
remove any of Tenant's trade fixtures, machinery or equipment. Tenant shall
repair, at Tenant's expense, any damage to the Property caused by the removal of
any such machinery or equipment. In no event, however, shall Tenant remove any
of the following materials or equipment (which shall be deemed Landlord's
property), without Landlord's prior written consent; unless the same shall have
been installed by Tenant at its expense: any power wiring or wiring panels;
lighting or lighting fixtures; wall coverings; drapes, blinds or other window
coverings; carpets or other floor coverings; heaters, air conditioners or any
other heating or air conditioning equipment; fencing or security gates; or other
similar building operating equipment.
ARTICLE ELEVEN - DAMAGE OR DESTRUCTION
11.01 Damage to Premises.
11.01 (a) If the Premises shall be destroyed or rendered
untenantable, either wholly or in part, by fire or other casualty ("Casualty"),
Tenant shall immediately notify Landlord in writing upon the occurrence of such
Casualty. In the event of any Casualty, Landlord may elect either to (i) repair
the damage caused by such casualty as soon as reasonably possible, in which case
this Lease shall remain in full force and effect, or (ii) terminate this Lease
as of the date the casualty occurred. Landlord shall notify Tenant within thirty
(30) days after receipt of notice of the occurrence of the casualty whether
Landlord elects to repair the damage or terminate this Lease. If Landlord shall
elect to repair the damage, Tenant shall pay Landlord the portion of the
"deductible amount" (if any) under Landlord's insurance allocable to the damage
to the Premises and, if the damage shall have been due to an act or omission of
Tenant, or Tenant's employees, agents, contractors or invitees, the difference
between the actual cost of repair and any insurance proceeds received by
Landlord. If Landlord elects to repair the damage as provided above, Landlord
shall work diligently to complete such repairs and deliver possession of the
Premises to Tenant within 180 days from the date of the casualty. If Landlord
does not deliver possession within 210 days after the date of the casualty,
Tenant may terminate this Lease upon written notice to Landlord. Landlord shall
use its best efforts to provide Tenant with alternate space in the Building or
in other building(s) owned by Landlord within five (5) miles of the Property
during such repair period.
11.01 (b) If the casualty to the Premises shall occur during
the last six (6) months of the Lease Term and the damage shall be estimated by
Landlord to require more than thirty (30) days to repair, either Landlord or
Tenant may elect to terminate this Lease as of the date the casualty shall have
occurred, regardless of the sufficiency of any insurance proceeds. The party
electing to terminate this Lease shall give written notification to the other
party of such election within ten (10) days after Tenant's notice to Landlord of
the occurrence of the casualty.
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11.02 Temporary Reduction of Rent. If the Property shall be
destroyed or damaged by casualty and Landlord shall determine to repair or
restore the Property pursuant to the provisions of this Article Eleven, any Rent
payable during the period of such damage, repair and/or restoration shall be
reduced according to the degree, if any, to which Tenant's use of the Premises
shall be impaired. Except for such possible reduction in Base Rent, insurance
premiums and Real Property Taxes, Tenant shall not be entitled to any
compensation, reduction or reimbursement from Landlord as a result of any
damage, destruction, repair, or restoration of the Property, unless the Premises
are not rebuilt and Landlord receives insurance proceeds relating to
improvements installed by Tenant at its expense, in which case Tenant shall be
entitled to receive said proceeds.
11.03 Waiver. Tenant waives the protection of any statute, code or
judicial decision which shall grant a tenant the right to terminate a lease in
the event of the damage or destruction of the leased property and the provisions
of this Article Eleven shall govern the rights and obligations of Landlord and
Tenant in the event of any damage or destruction of or to the Property.
ARTICLE TWELVE - CONDEMNATION
12.01 Condemnation. If more than twenty percent (20%) of the floor
area of the Premises or more than twenty-five percent (25%) of the parking on
the Property shall be taken by eminent domain either Landlord or Tenant may
terminate this Lease as of the date the condemning authority takes title or
possession, by delivering notice to the other within ten (10) days after receipt
of written notice of such taking (or in the absence of such notice, within ten
(10) days after the condemning authority shall take title or possession). If
neither Landlord nor Tenant shall terminate this Lease, this Lease shall remain
in effect as to the portion of the Premises not taken, except that the Base Rent
shall be reduced in proportion to the reduction in the floor area of the
Premises. If this Lease shall be terminated, any condemnation award or payment
shall be distributed to the Landlord. Tenant shall have no claim against
Landlord for the value of the unexpired lease term or otherwise, but shall be
entitled to receive any proceeds relating to improvements installed by Tenant at
its expense, its moving expenses, and loss of business damages (if available).
Provided same does not decrease Landlord's award, Tenant also may pursue an
award for other damages from the condemning authority.
ARTICLE THIRTEEN - ASSIGNMENT AND SUBLETTING
13.01 Landlord's Consent Required. No portion of the Premises or of
Tenant's interest in this Lease shall be acquired by any other person or entity,
whether by sale, assignment, mortgage, sublease, transfer, operation of law, or
act of Tenant, without Landlord's prior written consent, except as provided in
Section 13.02 below. Landlord shall have the right to grant or withhold its
consent as provided in Section 13.04 below. Any attempted transfer without
consent shall be void and shall constitute a non curable breach of this Lease.
13.02 No Release of Tenant. No assignment or transfer 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 shall not be a waiver of any provision of this Article
Thirteen. Consent to one transfer shall not be deemed a consent to any
subsequent transfer or a waiver of the obligation to obtain consent on
subsequent occasions. If Tenant's assignee or transferee shall default under
this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against the assignee or transferee. Landlord may consent to subsequent
assignments or modifications of this Lease by Tenant's transferee without
notifying Tenant or obtaining its consent, and such action shall not release
Tenant from any of its obligations or liabilities under this Lease as so
assigned or modified.
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13.03 Offer to Terminate. If Tenant shall desire to assign this
Lease, Tenant shall offer to Landlord in writing, the right to terminate this
Lease as of the date specified in the offer. If Landlord shall elect in writing
to accept the offer to terminate within twenty (20) days after receipt of notice
of the offer, this Lease shall terminate as of the date specified in such offer
and all the terms and provisions of this Lease governing termination shall
apply. If Landlord shall not so elect, Tenant shall then comply with the
provisions of this Article Thirteen applicable to such assignment of sublease.
13.04 Landlord's Consent. Tenant's request for consent under Section
13.01 shall set forth the details of the proposed sublease, assignment or
transfer, including the name, business and financial condition of the
prospective transferee, financial details of the proposed transaction (e.g., the
term of and the rent and security deposit payable under any proposed assignment
or sublease), and any other information Landlord deems relevant. Landlord shall
have the right to withhold consent, reasonably exercised, or to grant consent,
based on the following factors: (i) the business of the proposed assignee or
subtenant and the proposed use of the Premises; (ii) the net worth and financial
condition of the proposed assignee or subtenant; (iii) Tenant's compliance with
all of its obligations under this Lease; and (iv) such other factors as Landlord
may reasonably deem relevant. If Tenant shall assign or sublease, the following
shall apply: Tenant shall pay to Landlord as Additional Rent fifty percent (50%)
of the Proceeds (defined below) on such transaction (such amount being
Landlord's share) as and when received by Tenant, unless Landlord shall give
notice to Tenant and the assignee or subtenant that Landlord's Share shall be
paid by the assignee or subtenant to Landlord directly. Proceeds shall mean (a)
all rent and all fees and other consideration paid for or in respect of the
assignment or sublease, including fees under any collateral agreements less (b)
the rent and other sums payable under this Lease (in the case of a sublease of
less than all of the Premises, allocable to the subleased premises) and all
costs and expenses directly incurred by Tenant in connection with the execution
and performance of such assignment or sublease for reasonable real estate
broker's commissions and reasonable costs of renovation or construction of
tenant improvements required under such assignment or sublease. Tenant shall be
entitled to recover such reasonable costs and expenses before Tenant shall be
obligated to pay Landlord's Share to Landlord. Tenant shall provide Landlord a
written statement certifying all amounts to be paid from any assignment or
sublease of the Premises within thirty (30) days after the transaction shall be
signed and from time to time thereafter on Landlord's request, and Landlord may
inspect Tenant's books and records to verify the accuracy of such statement. On
written request, Tenant shall promptly furnish to Landlord copies of all the
transaction documentation, all of which shall be certified by Tenant to be
complete, true and correct. Tenant shall promptly reimburse Landlord for all
reasonable legal costs and expenses incurred by Landlord in connection with a
request for a sublease or assignment of this Lease.
13.05 No Merger. No merger shall result from Tenant's sublease of
the Premises under this Article Thirteen, Tenant's surrender of this Lease or
the termination of this Lease in any other manner. In any such event, Landlord
may, in its sole discretion, terminate any or all subtenancies or succeed to the
interest of Tenant as sublandlord under any or all subtenancies.
ARTICLE FOURTEEN: DEFAULTS AND REMEDIES
14.01 Covenants and Conditions. Tenant's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Premises is conditioned upon
such performance. Time is of the essence in the performance by Tenant of all
covenants and conditions.
14.02 Defaults. Each of the following shall be an event of default
under this Lease:
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14.02 (a) Tenant shall abandon or vacate the Premises;
14.02 (b) Tenant shall fail to pay Rent or any other sum
payable under this Lease within three (3) business days after receipt of written
notice same is due; provided, however, Landlord shall not be required to give
such notice to Tenant more than two (2) times in any twelve (12) month period --
the third such offense shall be an automatic default;
14.02 (c) Tenant shall fail to perform any of Tenant's other
obligations under this Lease and such failure shall continue for a period of
fifteen (15) days after written notice from Landlord providing reasonable detail
of the default; provided that if more than fifteen (15) days shall be required
to complete such performance, Tenant shall not be in default if Tenant shall
commence such performance within the fifteen (15) day period and shall
thereafter diligently pursue its completion.
14.02 (d) (i) Tenant shall make a general assignment or
general arrangement for the benefit of creditors; (ii) a petition for
adjudication of bankruptcy or for reorganization or rearrangement shall be filed
by or against Tenant and shall not be dismissed within sixty (60) days; (iii) a
trustee or receiver shall be appointed to take possession of substantially all
of Tenant's assets located at the Premises or Tenant's interest in this Lease
and possession shall be subjected to attachment, execution or other judicial
seizure which shall not be discharged within sixty (60) days. If a court of
competent jurisdiction shall determine that any of the acts described in this
subsection (d) is not a default under this Lease, and a trustee shall be
appointed to take possession (or if Tenant shall remain a debtor in possession)
and such trustee or Tenant shall assign, sublease, or transfer Tenant's interest
hereunder, then Landlord shall receive, as Additional Rent, the excess, if any,
of the rent (or any other consideration) paid in connection with such
assignment, transfer or sublease over the rent payable by Tenant under this
Lease.
14.02 (e) Any Guarantor of this Lease revokes or otherwise
terminates, or purports to revoke or otherwise terminate, any guaranty of all or
any portion of Tenant's obligations under the Lease. Unless otherwise expressly
provided, no guaranty of this Lease is revocable.
14.02 (f) Tenant shall mortgage, assign or otherwise encumber
its leasehold interest other than as specifically permitted under this Lease.
14.02 (g) Tenant's failure to renew or extend the term of the
Letter of Credit (defined below) at least thirty (30) days before the expiration
of the term thereof AND to deliver written confirmation from the issuing lender
to Landlord of the renewal of the term of the Letter of Credit not less than ten
(10) business days before the expiration of the term of the Letter of Credit.
14.03 Remedies. On the occurrence of an event of default by Tenant,
Landlord may, at any time thereafter, with or without notice or demand (except
as provided in Section 14.02) and without limiting Landlord in the exercise of
any right or remedy which Landlord may have:
14.03 (a) Terminate this Lease by written notice to Tenant or
by entry, at Landlord's option. Tenant shall then immediately quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided. Following termination, without prejudice to other remedies Landlord
may have by reason of Tenant's default or of such termination, Landlord may (i)
peaceably reenter the Premises upon voluntary surrender by Tenant or remove
Tenant therefrom and any other persons occupying the Premises, using such legal
proceedings as may be available; (ii) repossess the Premises or relet the
Premises or any part thereof for such term (which may be for a term extending
beyond the Lease Term), at such rental and upon
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such other terms and conditions as Landlord in Landlord's sole discretion shall
determine, with the right to make alterations and repairs to the Premises; and
(iii) remove all personal property therefrom. Following termination, Landlord
shall have all the rights and remedies of a landlord provided at law and in
equity. The amount of damages Tenant shall pay to Landlord following termination
shall include all Rent unpaid up to the termination of this Lease, costs and
expenses incurred by Landlord due to such Event of Default and, in addition,
Tenant shall pay to Landlord as damages, at the election of Landlord (if
Landlord shall elect subsection (y) below, it may cease such election at any
time), either (x) the discounted present value (at the then Federal Reserve Bank
discount rate) of the aggregate Rent and other charges due during the period
commencing with such termination and ending on the expiration date of this
Lease, or (y) amounts equal to the Rent and other charges which would have been
payable by Tenant had this Lease or Tenant's right to possession not been so
terminated, payable upon the due dates therefor specified herein following such
termination and until the expiration date of this Lease, provided, however, that
if Landlord shall re-let the Premises during such period, Landlord shall credit
Tenant with the net rents received by Landlord from such re-letting, such net
rents to be determined by first deducting from the gross rents as and when
received by Landlord from such re-letting the expenses incurred or paid by
Landlord in terminating this Lease, and the expenses of re-letting, including,
without limitation, altering and preparing the Premises for new tenants,
brokers' commissions, legal fees and all other similar and dissimilar expenses
properly chargeable against the Premises and the rental therefrom, it being
understood that any such reletting may be for a period equal to or shorter or
longer than the remaining Lease Term; and provided, further, that (i) in the no
event shall Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder and (ii) in no event shall Tenant
be entitled in any suit for the collection of damages pursuant to this
subsection (y) to a credit in respect of any net rents from a re-letting except
to the extent that such net rents are actually received by Landlord prior to the
commencement of such suit. If the Premises or any part thereof should be re-let
in combination with other space, then proper apportionment on a square foot area
basis shall be made of the rent received from such re-letting and of the
expenses of re-letting. In calculating the Rent and other charges under
subsection (x) above, there shall be included, in addition to the Rent other
considerations agreed to be paid or performed by Tenant, on the assumption that
all such considerations would have remained constant (except as herein otherwise
provided) for the balance of the full Term hereby granted. Landlord shall use
reasonable efforts to re-let the Premises. Landlord may, but need not, re-let
the Premises or any part thereof for such rent and on such terms as it shall
determine (including the right to re-let the Premises for a greater or lesser
term than the Lease Term, the right to re-let the Premises as part of a larger
area and the right to change the character or use made of the Premises). Suit or
suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the Term of this Lease would have expired if it had not been terminated
hereunder. In lieu of any other damages or indemnity and in lieu of full
recovery by Landlord of all sums payable under the foregoing provisions of this
Section 14.03 (a), Landlord may, by notice to Tenant, at any time after this
Lease shall be terminated under this Article Fourteen or shall be otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the Base Rent and Additional Rent due for the
twelve (12) months ended immediately prior to such termination plus the amount
of Base Rent and Additional Rent of any kind accrued and unpaid at the time of
termination, unless such default occurs in the last year of the Lease Term, in
which event such amount shall be the amount of Base Rent and Additional Rent due
for the balance of the Lease Term.
14.03 (b) Maintain Tenant's right to possession, in which case
this Lease shall continue in effect whether or not Tenant has abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including without limitation the right to
recover the rent as it becomes due, and to avail itself of the remedies set
forth in Section 14.03(a) above.
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14.03 (c) Pursue any other remedy now or hereafter available
to Landlord under the laws or judicial decisions of the state in which the
Property is located.
14.04 Repayment of "Free" Rent. [Intentionally Omitted].
14.05 Automatic Termination; Damages. Notwithstanding any other term
or provision hereof to the contrary, this Lease shall terminate on the
occurrence of any act which affirms the Landlord's intention to terminate the
Lease as provided in Section 14.03 hereof, including the filing of an unlawful
detainer action against Tenant. On any termination, Landlord's damages for
default shall include all costs and fees, including reasonable attorneys' fees
that Landlord shall incur in connection with the filing, commencement, pursuing
and/or defending of any action in any bankruptcy court or other court with
respect to the Lease, the obtaining of relief from any stay in bankruptcy
restraining any action to evict Tenant, or the pursuing of any action with
respect to Landlord's right to possession of the Premises. All such damages
suffered (apart from Base Rent and other Rent payable hereunder) shall
constitute pecuniary damages which shall be reimbursed to Landlord prior to
assumption of the Lease by Tenant or any successor to Tenant in any bankruptcy
or other proceedings.
14.06 Cumulative Remedies. Except as otherwise expressly provided
herein, any and all rights and remedies which Landlord may have under this Lease
and at law and equity shall be cumulative and shall not be deemed inconsistent
with each other, and any two or more of all such rights and remedies may be
exercised at the same time to the greatest extent permitted by law.
14.07 Rights of Redemption. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant's eviction or dispossession for any cause or in the event of
Landlord obtaining possession of the Premises as a result of Tenant's violation
of any of the Lease terms.
ARTICLE FIFTEEN: PROTECTION OF LENDERS
15.01 Subordination. This Lease is subordinate to any ground lease,
deed of trust or mortgage encumbering the Property, any advances made on the
security thereof and any renewals, modifications, consolidations, replacements
or extensions thereof, whenever made or recorded. Tenant shall cooperate with
Landlord and any lender which shall acquire a security interest in the Property
or the Lease. The terms of this Section shall be self-operative; however, Tenant
shall execute such further documents and assurances as such lender may require,
provided that Tenant's obligations under this Lease shall not be increased in
any material way (the performance of ministerial acts shall not be deemed
material), and Tenant shall not be deprived of its rights under this Lease. If
any ground lessor, beneficiary or mortgagee elects to have this Lease prior to
the lien of its ground lease, deed of trust or mortgage and gives written notice
thereof to Tenant, this Lease shall be deemed prior to such ground lease, deed
of trust or mortgage whether this Lease is dated prior or subsequent to the date
of said ground lease, deed of trust or mortgage or the date of recording
thereof. In conjunction with execution of this Lease, and in conjunction with
any subsequent financing or refinancing of the Property, Landlord shall provide
Tenant with its lender's standard non-disturbance agreement, which shall
provide, at a minimum, that absent a default by Tenant under this Lease lender
shall not disturb Tenant's tenancy or materially increase Tenant's obligations
under this Lease.
15.02 Attornment. If Landlord's interest in the Property is acquired
by any ground lessor, beneficiary under a deed of trust, mortgagee, or purchaser
at a foreclosure sale, Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Property and recognize such transferee or successor
as Landlord under this Lease. Tenant waives the protection of any statute or
rule of law which shall give
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Tenant any right to terminate this Lease or surrender possession of the Premises
upon the transfer of Landlord's interest. Landlord shall provide Tenant with its
lender's standard non-disturbance agreement which shall provide, at a minimum,
that absent a default by Tenant under this Lease lender shall not disturb
Tenant's tenancy or materially increase Tenant's obligations under this Lease.
15.03 Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so within ten (10)
business days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant, coupled with an interest, to execute and deliver any
such instrument or document.
15.04 Estoppel Certificates. Within ten (10) business days after
Landlord's request, Tenant shall execute, acknowledge and deliver to Landlord a
written statement certifying: (i) that none of the terms or provisions of this
Lease have been changed (or if they have been changed, stating how they have
been changed); (ii) that this Lease has not been canceled or terminated; (iii)
the last date of payment of the Base Rent and other charges and the time period
covered by such payment; (iv) that Landlord is not in default under this Lease
(or if Landlord is claimed to be in default, setting forth such default in
reasonable detail); and (v) such other information with respect to Tenant or
this Lease as Landlord may reasonably request or which any prospective purchaser
or encumbrancer of the Property may require. Landlord may deliver any such
statement by Tenant to any prospective purchaser or encumbrancer of the
Property, and such purchaser or encumbrancer may rely conclusively upon such
statement as true and correct. If Tenant shall not deliver such statement to
Landlord within such ten (10) business day period, Landlord, and any prospective
purchaser or encumbrancer, may conclusively presume and rely upon the following
facts: (i) that the terms and provisions of this Lease have not been changed
except as otherwise represented by Landlord; (ii) that this Lease has not been
canceled or terminated except as otherwise represented by Landlord; (iii) that
not more than one month's Base Rent or other charges have been paid in advance;
and (iv) that Landlord is not in default under this Lease. In such event, Tenant
shall be estopped from denying the truth of such facts.
15.05 Tenant's Financial Condition. Within ten (10) days after
request from Landlord from time to time, Tenant shall deliver to Landlord
Tenant's audited financial statements for the latest available two (2) fiscal
years. If requested by same, such financial statements may be delivered by
Landlord to Landlord's mortgagees and lenders and prospective mortgagees,
lenders and purchasers. Tenant represents and warrants to Landlord that each
such financial statement shall be true and accurate in all material respects as
of the date of such statement. All financial statements shall be confidential
and shall be used only for the purposes set forth in this Lease.
ARTICLE SIXTEEN: LEGAL COSTS
16.01 Legal Proceedings. If Tenant be in breach or default under
this Lease, Tenant shall reimburse Landlord upon demand for any costs or
expenses that Landlord shall incur in connection with any breach or default of
Tenant, as provided in this Section. If Landlord be in breach or default under
this Lease, Landlord shall reimburse Tenant upon demand for any costs or
expenses that Tenant shall incur in connection with any breach or default of
Landlord, as provided in this Section. Such costs shall include legal fees and
costs incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Tenant shall also indemnify Landlord against and hold Landlord
harmless from all costs, expenses, demands and liability, including without
limitation, legal fees and costs, Landlord shall incur if Landlord shall become
or be made a party to any claim or action (a) instituted by Tenant against any
third party, 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
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agreement with Tenant; (b) for foreclosure of any lien for labor or material
furnished to or for Tenant or such other person; (c) otherwise arising out of or
resulting from any act or transaction of Tenant or such other person; or (d)
necessary to protect Landlord's interest under this Lease in a bankruptcy or
similar proceeding. 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
Landlord shall incur in any such claim or action. Landlord shall indemnify
Tenant against and hold Tenant harmless from all costs, expenses, demands and
liability, including without limitation, legal fees and costs, Tenant shall
incur if Tenant shall become or be made a party to any claim or action (a)
instituted by Landlord against any third party, or by any third party against
Landlord; (b) for foreclosure of any lien for labor or material furnished to or
for Landlord or such other person; (c) otherwise arising out of or resulting
from any act or transaction of Landlord or such other person; or (d) necessary
to protect Tenant's interest under this Lease in a bankruptcy or similar
proceeding. Landlord shall defend Tenant against any such claim or action at
Landlord's expense with counsel reasonably acceptable to Tenant.
16.02 Landlord's Consent. Tenant shall pay Landlord's reasonable
fees and expenses, including, without limitation, legal, engineering and other
consultants' fees and expenses, incurred in connection with Tenant's request for
Landlord's consent under Article Thirteen (Assignment and Subletting) or in
connection with any other act by Tenant which requires Landlord's consent or
approval under this Lease.
ARTICLE SEVENTEEN: MISCELLANEOUS PROVISIONS
17.01 Non-Discrimination. Tenant agrees that it will not permit any
discrimination against, or segregation of, any person or group of persons on the
basis of race, color, sex, creed, national origin or ancestry in the leasing,
subleasing, transferring, occupancy, tenure or use of the Premises or any
portion thereof.
17.02 Landlord's Liability; Certain Duties.
17.02 (a) Bind and Inure; Limitation of Landlord's Liability.
The obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Property shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Property. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Property but not upon other assets of Landlord. No
individual partner, trustee, stockholder, officer, member, director, employee,
advisors or beneficiary of Landlord or any partner, trustee, stockholder,
officer, member, director, employee, advisor or beneficiary of any of the
foregoing, shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Property in pursuit of its remedies upon an
event of default hereunder; the general assets of Landlord, its partners,
trustees, stockholders, members, officers, employees, advisors or beneficiaries
of Landlord, and the partners, trustees, stockholders, members, officers,
employees, advisors or beneficiary of any of the foregoing, shall not be subject
to levy, execution or other enforcement procedure for the satisfaction of the
remedies of Tenant.
17.02 (b) Notice. Tenant shall give written notice of any
failure by Landlord to perform any of its obligations under this Lease to
Landlord and to any ground lessor, mortgagee or beneficiary under any deed of
trust encumbering the Property whose name and address shall have been furnished
to Tenant. Landlord shall not be in default under this Lease unless Landlord (or
such ground lessor, mortgagee or beneficiary) shall fail to cure such
non-performance within thirty (30) days after receipt of Tenant's notice.
However, if such non-performance shall reasonably require more than thirty (30)
days to cure, Landlord shall not be in default if such cure shall be commenced
within such thirty (30) day period and thereafter diligently pursued to
completion.
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17.03 Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision of
this Lease, which shall remain in full force and effect.
17.04 Interpretation. The captions of the Articles or Sections of
this Lease are not a part of the terms or provisions of this Lease. Whenever
required by the context of this Lease, the singular shall include the plural and
the plural shall include the singular. The masculine, feminine and neuter
genders shall each include the other, in any provision relating to the conduct,
acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the Premises with
Tenant's expressed or implied permission. This Lease shall not, and nothing
contained herein, shall create a partnership or other joint venture between
Landlord and Tenant.
17.05 Incorporation of Prior Agreements; Modifications. This Lease
is the only agreement between the parties pertaining to the lease of the
Premises and no other agreements shall be effective. All amendments to this
Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
17.06 Notices. All notices, requests and other communications
required or permitted under this Lease shall be in writing and shall be
personally delivered or sent by certified mail, return receipt requested,
postage prepaid or by a national overnight delivery service which maintains
delivery records. Notices to Tenant shall be delivered to Tenant's Address for
Notices, with a copy to Xxxxxxx X. Xxxxxx, Esq., Xxxxx and Xxxxxxxxx LLP, 000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000. Notices to Landlord
shall be delivered to Landlord's Address for Notices, with a copy to Xxxxxxxxxxx
X. Xxxxxxxx, Esquire, Holland & Knight LLP, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000. All notices shall be effective upon delivery (or refusal
to accept delivery). Either party may change its notice address upon written
notice to the other party.
17.07 Waivers. All waivers shall be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or its
acceptance of Rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound by to the conditions of such
statement.
17.08 No Recordation. Tenant shall not record this Lease or any
memorandum or evidence thereof without the prior written consent from Landlord,
which consent may be withheld in the sole and unfettered discretion of Landlord.
The recording of any such instrument by Tenant without Landlord's prior written
consent shall be a default hereunder and Tenant hereby agrees that such
instrument may be terminated by Landlord upon the filing of a termination
thereof executed only by Landlord.
17.09 Binding Effect; Choice of Law. This Lease shall bind any party
who shall legally acquire any rights or interest in this Lease from Landlord or
Tenant, provided that Landlord shall have no obligation to Tenant's successor
unless the rights or interests of Tenant's successor are acquired in accordance
with the terms of this Lease. The laws of the state in which the Property is
located shall govern this Lease.
17.10 Corporate Authority; Partnership Authority. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that (s)he has full authority to do so and that this Lease
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binds the corporation. Within thirty (30) days after this Lease is signed,
Tenant shall deliver to Landlord a certified copy of a resolution of Tenant's
Board of Directors authorizing the execution of this Lease or other evidence of
such authority reasonably acceptable to Landlord. If Tenant is a partnership or
limited liability company, each person or entity signing this Lease for Tenant
represents and warrants that he or it is a general partner of the partnership or
a manager or managing member of the company, that he or it has full authority to
sign for the partnership and that this Lease binds the partnership or company
and all general partners of the partnership or the company and its members.
Within thirty (30) days after this Lease is signed, Tenant shall deliver to
Landlord a copy of Tenant's recorded statement of partnership or certificate of
limited partnership or certificate of formation or organization.
17.11 Joint and Several Liability. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant.
17.12 Force Majeure. If Landlord or Tenant cannot perform any of its
obligations hereunder (except for the prompt payment by Tenant of all sums due
under this Lease which shall not be relieved by force majeure) due to events
beyond such party's reasonable control, the time provided for performing such
obligations shall be extended by a period of time equal to the duration of such
events. Events beyond a party's reasonable control include, but are not limited
to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or
other casualty, shortages of labor or material, government regulation or
restriction and weather conditions.
17.13 Execution of Lease. This Lease may be executed in counterparts
and, when all counterpart documents are executed, the counterparts shall
constitute a single binding instrument. Landlord's delivery of this Lease to
Tenant shall not be deemed to be an offer to lease and shall not be binding upon
either party until executed and delivered by both parties.
17.14 Survival. All representations and warranties of Landlord and
Tenant, and all obligation of Tenant to pay Additional Rent hereunder, shall
survive the termination of this Lease.
17.15 Examination of Lease. Submission of this Lease to Tenant shall
not constitute an option to lease, and this Lease shall not be effective until
execution and delivery by both Landlord and Tenant.
17.16 Security Deposit. Upon the execution of this Lease, Tenant
shall deposit with Landlord the Security Deposit. Landlord may, at its option,
apply all or part of the Security Deposit to any unpaid Rent or other charges
due from Tenant, cure any other defaults of Tenant, or compensate Landlord for
any loss or damage which Landlord may suffer due to Tenant's default. If
Landlord shall so use any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within ten (10) days after Landlord's
written request. No interest shall be paid on the Security Deposit, no trust
relationship is created herein between Landlord and Tenant with respect to the
Security Deposit, and the Security Deposit may be commingled with other funds of
Landlord. Upon expiration or termination of this Lease not resulting from
Tenant's default and after Tenant shall have vacated the Premises in the manner
required by this Lease, Landlord shall pay to Tenant any balance of the Security
Deposit not applied pursuant to this Section 17.16.
17.17 Limitation of Warranties. Landlord and Tenant expressly agree
that there are and shall be no implied warranties of merchantability,
habitability, suitability, fitness for a particular purpose or of any other kind
arising out of this Lease, and there are no warranties which extend beyond those
expressly set forth in this Lease. Without limiting the generality of the
foregoing, Tenant expressly acknowledges that Landlord has made no warranties or
representations concerning any hazardous materials or other environmental
matters affecting any part of the Property beyond those expressly set forth in
this Lease and Landlord hereby
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expressly disclaims and Tenant waives any express or implied warranties with
respect to any such matters.
17.18 No Other Brokers. Tenant represents and warrants to Landlord
that the Brokers are the only agents, brokers, finders or other parties with
whom Tenant has dealt who may be entitled to any commission or fee with respect
to this Lease or the Premises or the Property. Tenant agrees to indemnify and
hold Landlord harmless from any claim, demand, cost or liability, including,
without limitation, attorneys' fees and expenses, asserted by any party other
than the Brokers based upon dealings of that party with Tenant.
17.19 Guaranty. [Intentionally Omitted].
17.20. Radon. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
17.21. Waiver of Jury Trial. THE PARTIES HERETO WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY(IES) AGAINST ANY
OTHER PARTY(IES) ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE OR THE RELATIONSHIP OF THE PARTIES CREATED HEREUNDER.
17.22. Improvements. Landlord shall deliver the Premises to Tenant
with all building systems in good working order. In addition, Landlord shall
complete the improvements to the Premises outlined in Exhibit I attached hereto
and incorporated herein by this reference (collectively, the "Improvements") in
accordance with the schedule set forth in Section 3.02 above. Landlord shall
commence construction of the Improvements as soon as practicable after Tenant
obtains access to the Premises from Ameriserve, as outlined in Section 3.02
above. Tenant shall notify Landlord of any defects in the office space area, the
warehouse and cooler floor area and the demising wall within five (5) days of
completion of Landlord's work thereon; Tenant shall notify Landlord of any
defects in the warehouse area within five (5) days after the Lease Commencement
Date. Tenant's acceptance of the Premises shall be effective only as of the
Lease Commencement Date, and shall be subject to any notices of defects
delivered prior to such date or notices of defects relating to the warehouse
area delivered as stated above.
17.23. Letter of Credit. Within five (5) business days following the
execution of this Lease (and as a condition precedent to taking possession of
the Premises hereunder), Tenant shall deliver to Landlord an irrevocable letter
of credit in the original amount of $50,000.00. The Letter of Credit shall serve
as additional security for the payment and performance of Tenant's obligations
hereunder. The Letter of Credit shall be in such form, and shall be issued by
Finova Capital Corporation ("Finova") or such other lender, as are acceptable to
Landlord in its sole discretion. Upon a default under this Lease, Landlord shall
be free to draw upon the Letter of Credit in full. The original term of the
Letter of Credit shall be not less than five (5) years and five (5) months.
Provided Tenant is not then in default under this Lease, and further provided
that Tenant's financial condition (as established by its annual financial
statements) is equal to or better than its financial condition as of the Date of
Lease, the amount of the Letter of Credit shall be reduced annually by
$10,000.00.
17.24. Landlord's Lien Subordination. Pursuant to Tenant's request,
Landlord hereby subordinates, as to Finova and any other Third Party Lenders
(defined below) of Tenant, Landlord's lien rights for rent on the personal
property of Tenant and any right to pursue distress proceedings as to same for
the payment of rent under Chapter 83, Florida Statutes, or any successor
statute. This subordination is
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effective as to, and may be relied upon by, Finova and any other Third Party
Lenders with loans in place in favor of Tenant as of the Date of Lease. Landlord
shall execute such additional documents as are reasonably necessary to document
this subordination. Any such subordination shall continue until Tenant has paid
the full amount owing to Finova and/or said Third Party Lender in accordance
with the terms and conditions of the borrowing arrangement between Tenant and
such lender, whereupon the subordination shall terminate of its own force and
effect as to such lender. "Third Party Lenders" shall not mean any officers,
directors, investors, shareholders or employees of Tenant, or any other persons
related by blood or marriage to any of the foregoing (up to two (2) generations
removed); "Third Party Lenders" shall mean any institutional or conventional
lenders, such as banks, credit unions, insurance companies, or pension or trust
funds.
17.25. Option to Renew. Tenant shall have the option to renew this
Lease for one (1) additional five (5) year period ("Renewal Period") commencing
upon the expiration of the original Lease Term upon, and in strict compliance
with, the following terms and conditions: (i) Tenant must not then be in default
under this Lease, nor may Tenant be in default as of the date the Renewal Period
commences; (ii) Tenant must deliver to Landlord written notice of its election
to renew the Lease Term for the Renewal Period not sooner that twelve (12)
months nor later than nine (9) months before the expiration of the original
Lease Term; (iii) the Base Rent for the first year of the Renewal Period shall
be the greater of (a) market rent at the time of the renewal or (b) the Base
Rent payable hereunder as of the day before the Renewal Term commences, plus
three percent (3%); and (iv) Base Rent during the Renewal Period shall increase
three percent (3%) each year; otherwise, this Lease shall be renewed for the
Renewal Period on the same terms and conditions as set forth herein, except that
the provisions of this Section 17.25 shall expire. Landlord shall notify Tenant
within fifteen (15) days of receipt of Tenant's notice of election to renew this
Lease of the Base Rent calculated pursuant to Subsection (iii) (a) and (b) above
for the first year of the Renewal Term; Tenant shall have fifteen (15) days from
receipt of such written notice to decide whether to proceed with the renewal on
such terms, or to rescind its election to renew. Tenant shall deliver written
notice of such decision to Landlord not later than the last day of the fifteen
(15) day period. If Tenant fails to deliver said written notice within the
applicable time period, Tenant shall be presumed to have elected to continue
with the renewal at the greater of the two rental rates set forth in Landlord's
written notice.
17.26. First Negotiation. Before entering into a lease with anyone
else during the Lease Term for the North Space (as depicted on Exhibit J
attached hereto) or the South Space (as depicted on Exhibit J attached hereto),
Landlord shall notify Tenant of the availability of such space for leasing.
Provided Tenant gives written notice to Landlord of its desire to lease such
space within five (5) business days after receipt of such notice, for a period
of thirty (30) days thereafter Tenant shall have the right to negotiate with
Landlord for a lease of such space, Landlord and Tenant agreeing to negotiate in
good faith for such space. If Tenant fails to respond to such notice within five
(5) business days, or if Tenant gives such notice and Landlord and Tenant fail
to enter into a lease within such thirty (30) day period, Tenant's rights
hereunder shall be deemed to have been waived, and Landlord shall be free
(without any further obligation to Tenant) to lease the space to anyone upon the
same or any other terms and without any further obligation to Tenant, whether or
not the terms of such lease are more or less favorable than those offered to
Tenant. Tenant's first right to negotiate, as aforesaid, is subordinate in all
instances to any expansion or renewal rights or options granted to the tenants
of such space. The first right to negotiate set forth herein shall be terminated
during any period in which Tenant is in default under this Lease until said
default has been cured. The period of time in which this first right to
negotiate may be exercised shall not be extended or enlarged by reason of the
foregoing provision. Time is of the essence. If Tenant fails to exercise its
first right to negotiate in any instance when such right may arise, in writing,
prior to the expiration of the applicable time period for the exercise of same,
Tenant's right hereunder in such instance shall be deemed null and void and of
no further force or effect.
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Landlord and Tenant have signed this Lease at the place and on the
dates specified adjacent to their signature below.
"LANDLORD"
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EXHIBIT A
THE PROPERTY
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EXHIBIT B
THE PREMISES
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EXHIBIT C
RULES AND REGULATIONS
1. No advertisements, pictures or signs of any sort shall be displayed on
or outside the Premises without the prior written consent of Landlord. This
prohibition shall include any portable signs or vehicles placed within the
parking lot, common areas or on streets adjacent thereto for the purpose of
advertising or display. Landlord shall have the right to remove any such
unapproved item without notice and at Tenant's expense.
2. Tenant shall not park or store motor vehicles, trailers or containers
outside the Premises after the conclusion of normal daily business activity
except in approved areas specifically designated by Landlord, acting reasonably.
3. Tenant shall not use any method of heating or air-conditioning other
than that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings and window films or coatings installed by Tenant
and visible from outside of the building require the prior written approval of
Landlord. Except for dock shelters and seals as may be expressly permitted by
Landlord, no awnings or other projections shall be attached to the outside walls
of the building.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance on, in or around the Premises unless approved by
Landlord. Tenant shall not use, keep or permit to be used or kept any flammable
or combustible materials without proper governmental permits and approvals.
6. Tenant shall not use, keep or permit to be used or kept food or other
edible materials in or around the Premises in such a manner as to attract
rodents, vermin or other pests. Tenant shall not permit cooking in or about the
Premises other than in microwave ovens.
7. Tenant shall not use or permit the use of the Premises for lodging or
sleeping, for public assembly, or for any illegal or immoral purpose.
8. Tenant shall not alter any lock or install any new locks or bolts on
any door at the Premises without the prior written consent of Landlord. Tenant
agrees not to make any duplicate keys without the prior consent of Landlord.
9. Tenant shall park motor vehicles only in those general parking areas as
designated by Landlord except for active loading and unloading. During loading
and unloading of vehicles or containers, Tenant shall not unreasonably interfere
with traffic flow within the industrial park and loading and unloading areas of
other tenants.
10. Storage of propane tanks, whether interior or exterior, shall be in
secure and protected storage enclosures approved by the local fire department
and, if exterior, shall be located in areas specifically designated by Landlord.
Safety equipment, including eye wash stations and approved neutralizing agents,
shall be provided in areas used for the maintenance and charging of lead-acid
batteries. Tenant shall protect electrical panels and building mechanical
equipment from damage from forklift trucks.
11. Tenant shall not disturb, solicit or canvas any occupant of the
Building or industrial park and shall cooperate to prevent same.
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12. No person shall go on the roof of the Property without Landlord's
permission except to perform obligations under its lease.
13. No animals (other than seeing eye dogs) or birds of any kind may be
brought into or kept in or about the Premises.
14. Machinery, equipment and apparatus belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building to
such a degree as to be objectionable to Landlord or other tenants or to cause
harm to the Building shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to eliminate the
transmission of such noise and vibration. Tenant shall cease using any such
machinery which causes objectionable noise and vibration which can not be
sufficiently mitigated.
15. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and shall not be
left in parking or exterior loading areas overnight.
16. Tractor trailers which must be unhooked or parked with dolly wheels
beyond the concrete loading areas must use steel plates or wood blocks of
sufficient size to prevent damage to the asphalt paving surfaces. No parking or
storing of such trailers will be permitted in the auto parking areas of the
industrial park or on streets adjacent thereto.
17. Forklifts which operate on asphalt paving areas shall not have solid
rubber tires and shall use only tires that do not damage the asphalt.
18. Tenant shall be responsible for the safe storage and removal of all
pallets. Pallets shall be stored behind screened enclosures at locations
approved by the Landlord.
19. Tenant shall be responsible for the safe storage and removal of all
trash and refuse. All such trash and refuse shall be contained in suitable
receptacles stored behind screened enclosures at locations approved by Landlord.
Landlord reserves the right to remove, at Tenant's expense and without further
notice, any trash or refuse left elsewhere outside of the Premises or in the
industrial park.
20. Tenant shall not store or permit the storage or placement of goods or
merchandise in or around the common areas surrounding the Premises. No displays
or sales of merchandise shall be allowed in the parking lots or other common
areas.
21. Tenant shall appoint an Emergency Coordinator who shall be responsible
for assuring notification of the local fire department in the event of an
emergency, assuring that sprinkler valves are kept open and implementing the
Factory Mutual "Red Tag Alert" system including weekly visual inspection of all
sprinkler system valves on or within the Premises.
_________ Landlord
_________ Tenant
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EXHIBIT D - WORK LETTER
THIS WORK LETTER AGREEMENT ("Work Letter Agreement") is entered into as of the
____ day of _________, 199_ by and between CABOT INDUSTRIAL PROPERTIES, L.P.
("Landlord"), and ________________ ("Tenant").
RECITALS
A. Concurrently with the execution of this Work Letter, Landlord and
Tenant have entered into the Lease covering certain Premises more particularly
described in the Lease. All terms not defined herein have the same meaning as
set forth in the Lease.
B. In order to induce Tenant to enter into the Lease and in consideration
of the mutual covenants hereinafter contained, Landlord and Tenant agree as
follows:
1. LANDLORD'S WORK. As used in the Lease and this Work Letter
Agreement, the term "Landlord's Work" means those items of general tenant
improvement construction shown on the Final Plans (described in Paragraph 5(b)
below), including, but not limited to, partitioning, doors, ceilings, floor
coverings, wall finishes (including paint and wall coverings), electrical
(including lighting, switching, telephones, outlets, etc.), plumbing, heating,
ventilating and air conditioning, fire protection, cabinets and other millwork
and distribution of building services such as sprinkler and electrical service.
All Landlord's Work and components thereof shall at all times be and remain the
sole property of Landlord.
2. CONSTRUCTION REPRESENTATIVES. Landlord appoints the following
person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Work Letter:
------------------------
------------------------
------------------------
Tenant appoints the following person(s) as Tenant's representative ("Tenant
Representative") to act for Tenant in all matters covered by this Work Letter.
------------------------
------------------------
------------------------
All communications with respect to the matters covered by this Work Letter are
to be made to Landlord's Representative or Tenant's Representative, as the case
may be, in writing, in compliance with the notice provisions of the Lease.
Either party may change its representative under this Work Letter at any time by
written notice to the other party in compliance with the notice provisions of
the Lease.
3. DESIGN AND CONSTRUCTION. All Landlord's Work shall be
performed by designers and contractors selected and engaged by Landlord.
4. WORK SCHEDULE. Within ten (10) days after execution of the
Lease, Landlord will deliver to Tenant, for Tenant's review and approval, a
schedule ("Work Schedule") which will set forth the timetable for the planning
and completion of the installation of the Tenant Improvements and the
Commencement Date of the Lease. The Work Schedule will set forth each of the
various items of work to be done or approval to be given by Landlord and Tenant
in connection with the completion of Landlord's
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Work. The Work Schedule will be submitted to Tenant for its approval, which
Tenant agrees not to unreasonably withhold, and once approved by both Landlord
and Tenant, the Work Schedule will become the basis for completing Landlord's
Work. All plans and drawings required by this Work Letter and all work performed
pursuant thereto are to be prepared and performed in accordance with the Work
Schedule. If Tenant shall fail to deliver to Landlord Tenant's written approval
of the Work Schedule, as it may be modified after discussions between Landlord
and Tenant, within seven (7) days after the date the Work Schedule is first
received by Tenant, the Work Schedule, as it may be modified, shall be deemed
approved by Tenant.
5. TENANT IMPROVEMENT PLANS.
(a) Approval. Landlord and Tenant hereby approve the
preliminary space plans for the layout of the Premises ("Space Plans"). Copies
of the Space Plans are included in the Lease and incorporated by reference.
(b) Preparation of Final Plans. Based on the approved
Space Plans, and in accordance with the Work Schedule, Landlord's architect will
prepare complete architectural plans, drawings and specifications and complete
engineered mechanical, structural and electrical working drawings for all of
Landlord's Work (collectively the "Final Plans"). The Final Plans will show: (i)
the subdivision (including partitions and walls), layout, lighting, finish and
decoration work (including carpeting and other floor coverings) for the
Premises; (ii) all internal and external communications and utility facilities
which will require the installation of conduits or other improvements from the
base building shell and/or within common areas; and (iii) all other
specifications for Landlord's Work. The Final Plans will be submitted to Tenant
for signature to confirm that they are consistent with the Space Plans, and at
such time Landlord shall provide Tenant with a written summary (the "Excess Cost
Summary") of those elements of the Final Plans that will cost in excess of the
Tenant Improvement Allowance (defined in the Lease) ("Excess Costs"). Tenant
agrees to advise Landlord in writing of any disapproval of the Final Plans
and/or Excess Cost Summary and the reasons therefor within the time frame set
forth in the Work Schedule. In accordance with the Work Schedule, Landlord will
then cause Landlord's architect to redesign the Final Plans incorporating the
revisions reasonably requested by Tenant so as to make the Final Plans
consistent with the Space Plans. If Tenant fails to timely deliver to Landlord
Tenant's written disapproval of the Final Plans and/or Excess Cost Summary, the
Final Plans and/or Excess Cost Summary shall be deemed approved by Tenant. If
any revised Final Plans or Excess Cost Summary, are timely disapproved by Tenant
pursuant to this paragraph, Tenant shall provide to Landlord a written
explanation of the reason(s) for such disapproval concurrently with its
disapproval, and the Final Plans or Excess Cost Summary, as appropriate, shall
be promptly revised and resubmitted to Tenant for approval. If Tenant fails to
provide a written explanation as and when required by this paragraph, the Final
Plans or Excess Cost Summary shall be deemed approved by Tenant. Tenant agrees
to sign the revised Final Plans and to approve in writing the revised Excess
Cost Summary within the time frame set forth in the Work Schedule. If Tenant
fails to timely deliver to Landlord signed Final Plans or written approval of
the Excess Cost Summary, the Final Plans and/or the Excess Cost Summary shall be
deemed approved by Tenant.
(c) Requirements of the Final Plans. The Final Plans will
include locations and complete dimensions, and Landlord's Work, as shown on the
Final Plans, and will: (i) be compatible with the building shell and with the
design, construction and equipment of the building; (ii) if not comprised of the
building standard set forth in the written description thereof attached hereto
("Building Standard"), be compatible with and of at least equal quality as
Building Standard and approved by Landlord; (iii) comply with all applicable
laws, ordinances, rules and regulations of all governmental authorities having
jurisdiction, and all applicable insurance regulations; (iv) not require
building service beyond the level normally provided to other tenants of the
Property and will not overload the building floors; and (v) be of a nature and
quality consistent with the overall objectives of Landlord for the Property, as
determined by Landlord in its reasonable but subjective discretion. Tenant's
approval of the Final Plans shall constitute Tenant's agreement to pay Landlord
the Excess Costs before commencement of construction of Landlord's Work.
(d) Submittal of Final Plans. Once approved by Landlord
and Tenant, Landlord's architect will
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submit the Final Plans to the appropriate governmental agencies for plan
checking and the issuance of a building permit. Landlord's architect, with
Tenant's cooperation, will make any changes to the Final Plans which are
requested by the applicable governmental authorities to obtain the building
permit. Any changes requested by governmental authorities will be made only with
the prior written approval of both Landlord and Tenant, and only if Tenant
agrees to pay any excess costs resulting from the design and/or construction of
such requested changes (the "Additional Costs"). Landlord shall have the option
to revise the Excess Cost Summary by increasing the Excess Costs by the amount
of the Additional Costs resulting from plan modifications required by any
governmental authority. Tenant hereby acknowledges that any such changes will be
subject to the terms of Section 6 below. Any Additional Costs are to be paid by
Tenant to Landlord within ten (10) days after receipt by Tenant of an invoice
for such Additional Costs from Landlord.
(e) Changes to Shell of Building. If the Final Plans or
any amendment thereof or supplement thereto shall require changes in the
building shell, the increased cost of the building shell work caused by such
changes will be paid for by Tenant.
6. PAYMENT FOR LANDLORD'S WORK.
(a) Tenant Improvement Allowance and Excess Costs.
Landlord shall pay for Landlord's Work up to a maximum of $_________________
($___ per rentable square foot) (the "Tenant Improvement Allowance"). The Tenant
Improvement Allowance shall only be used for:
(i) Payment of the costs of preparing the Space Plans
and the Final Plans, including mechanical, electrical,
plumbing and structural drawings, and of all other aspects
necessary to complete the Final Plans. The Tenant Improvement
Allowance will not be used for the payment of extraordinary
design work not included within the scope of the standards of
the Property or for payments to any other consultants,
designers or architects other than Landlord's architect, space
planner or accountant, all of which other costs shall be paid
for by Tenant.
(ii) Payment of plan check, permit and license fees
relating to construction of Landlord's Work. (iii)
Construction of Landlord's Work, including, without
limitation, the following:
(A) Installation within the Premises of all
partitioning, doors, floor coverings, ceilings, wall
coverings and painting, millwork and similar items;
(B) All electrical wiring, lighting
fixtures, outlets and switches, and other electrical
work to be installed within the Premises, excluding
however, computer cable and wiring;
(C) The furnishing and installation of all
duct work, terminal boxes, diffusers and accessories
required for the completion of the heating,
ventilation and air conditioning systems within the
Premises, including the cost of meter and key control
for after-hour air conditioning;
(D) Any additional tenant requirements
including, but not limited to, air quality control,
special heating, ventilation and air conditioning,
noise or vibration control or other special systems;
(E) All fire and life safety control systems
such as fire walls, sprinklers, fire alarms,
including piping and wiring, installed within the
Premises;
(F) All plumbing, including fixtures and
pipes, to be installed within the Premises;
(G) Testing and inspection costs; and
(H) Contractor's fees, including, but not
limited to, any fees based on general conditions.
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(iv) all other costs to be expended by Landlord in
the construction of Landlord's Work, including those costs
incurred by Landlord for construction of elements of
Landlord's Work in the Premises, which construction was
performed by Landlord prior to the execution of the Lease and
which construction is for the benefit of tenants and is
customarily performed by Landlord prior to the execution of
leases for space at the Property for reasons of economics
(examples of such construction would include, but not be
limited to, the extension of mechanical, HVAC and electrical
distribution systems outside of the core of the building, wall
construction, column enclosures and painting outside of the
core of the building , ceiling hanger wires and window
treatments).
(b) Changes. If, after the Final Plans and the Excess
Costs Summary has been approved by Tenant, Tenant requests any changes or
substitutions to the Final Plans or to Landlord's Work during construction,
Tenant shall complete the change order request form approved by Landlord and
forward it to Landlord's representative. All such changes shall be subject to
Landlord's prior written approval in accordance with Paragraph 12. Prior to
commencing any change, Landlord shall prepare and deliver to Tenant, for
Tenant's approval, a change order setting forth the total cost of such change,
which shall include associated architectural, engineering, construction
contractor's costs and fees, completion schedule changes in the Work Schedule
and the cost of Landlord's overhead. If Tenant fails to approve such change
order within five (5) business days after delivery by Landlord, Tenant shall be
deemed to have withdrawn the proposed change and Landlord shall not proceed to
perform the change. Upon Landlord's receipt of Tenant's approval, Landlord shall
proceed with the change. Any additional costs related to such change are to be
paid by Tenant to Landlord within ten (10) days after receipt by Tenant of an
invoice for such additional costs from Landlord.
(c) Credit. Except as specifically provided for herein,
Tenant shall not be entitled to any credit for any portion of the Tenant
Improvement Allowance which is not used.
(d) Subcontractors. At Tenant's request, Landlord shall
require its general contractor to competitively bid substantial subcontracts
that are a part of Landlord's work. Although Landlord shall make all final
subcontract selections, Landlord agrees to consult with Tenant as to all phases
of the subcontracting process (including the review of bids, selection of
subcontractors and administration of subcontracts).
7. CONSTRUCTION OF LANDLORD'S WORK. Until Tenant approves the
Final Plans and Excess Cost Summary, Landlord will be under no obligation to
cause the construction of any of Landlord's Work. Following Tenant's approval of
the Excess Cost Summary and after Landlord obtains all necessary permits
pursuant to Paragraph 5(d), Landlord's contractor will commence and diligently
proceed with the construction of the Landlord's Work, subject to Tenant Delays
(as described in Paragraph 9 below) and Force Majeure Delays (as described in
Paragraph 10 below). The costs of such work shall be paid as provided in
Paragraph 6. Promptly upon the commencement of Landlord's Work, Landlord will
furnish Tenant with a construction schedule letter setting forth the projected
completion dates therefor and showing the deadlines for any actions required to
be taken by Tenant during such construction, and Landlord may from time to time
during construction of Landlord's Work modify such schedule. Landlord will also
furnish Tenant with written progress reports at the end of each week during
construction. Construction inspections will be made periodically by qualified
Landlord employees or subcontractors and Tenant shall have the right to have
qualified Tenant employees or subcontractors review compliance of Landlord's
Work with the Final Plans.
8. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, consistent with
its obligation to other tenants at the Property make the freight/construction
elevator (if any) reasonably available to Tenant in connection with initial
decorating, furnishing and moving into the Premises. Tenant agrees to pay for
any after-hours staffing of the freight/construction elevator, if needed.
9. TENANT DELAYS. For purposes of this Work Letter, "Tenant
Delays" means any delay in the completion of the Landlord's Work resulting from
any or all of the following:
(a) Tenant's failure to timely perform any of its
obligations pursuant to this Work Letter,
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including any failure to approve any item or complete, on or before the due date
therefor, any action item which is Tenant's responsibility pursuant to this Work
Schedule or any schedule delivered by Landlord to Tenant pursuant to this Work
Letter;
(b) Change orders requested by Tenant after approval of
the Final Plans;
(c) Tenant's request for materials, finishes, or
installations which are not readily available or incompatible with Building
Standard;
(d) any delay of Tenant in making payment to Landlord for
any costs due from Tenant under this Work Letter or the Lease; or
(e) any other act or failure to act by Tenant, Tenant's
employees, agents, architects, independent contractors, consultants and/or any
other person performing or required to perform services on behalf of Tenant.
10. FORCE MAJEURE DELAYS. For purposes of the Work Letter, "Force
Majeure Delays" means any and all causes beyond Landlord's reasonable control,
including, without limitation, delays caused by Tenant, other tenants,
governmental regulation, governmental restriction, strike, labor dispute, riot,
accident, mechanical breakdown, shortages of or inability to obtain labor, fuel,
steam, water, electricity or materials, acts of God, war, enemy action, civil
commotion, fire or other casualty.
11. APPROVALS. Whenever any party under this Work Letter must
reasonably grant its approval such party shall also not unreasonably delay or
condition its approval. Any approval shall be deemed granted unless such party
responds within seven (7) days after its receipt of the items for which approval
is sought.
12. LANDLORD'S APPROVAL. Landlord, in its sole discretion, may
withhold its approval of the Final Plans, change orders or other documents or
plans that:
(a) Exceeds or adversely affects the structural integrity
of the building or the Property, or any part of the heating, ventilating, air
conditioning, plumbing, mechanical, electrical, communication, or other systems
of the building or the Property;
(b) Is not approved by any mortgagee or ground lessor of
the Property at the time the work is proposed;
(c) Would not be approved by a prudent owner of property
similar to the Property;
(d) Violates any agreement which affects the Property or
binds the Landlord;
(e) Landlord believes will increase the cost of operation
or maintenance of any of the systems of the building or the Property;
(f) Landlord believes will reduce the market value of the
Premises or the Property at the end of the Term of the Lease;
(g) Does not conform to the applicable building code or
is not approved by any governmental, quasi-governmental, or utility authority
with jurisdiction over the Premises; or
(h) Does not conform to the Building Standard.
13. DEFAULTS BY TENANT. In the event of any default by Tenant with
respect to any of the provisions of this Work Letter or any other agreement with
Landlord relating to construction in or about the Premises, Landlord may, in
addition to exercising any other right or remedy Landlord may have, treat such
default as a default by Tenant under the Lease and exercise any or all rights
available under the Lease in connection therewith, including, if applicable, the
right of termination. In the event of any termination of the Lease by Landlord,
Landlord may elect in its absolute discretion, with respect to any work
performed by or on behalf of Tenant prior to the date of such termination, to
either:
(a) retain for its own use part or all of any such work,
without compensation to Tenant therefor; or
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(b) demolish or remove part or all of any such work and
restore part or all of the Premises to its condition prior to the initial tender
of possession thereof to Tenant, in which event Tenant shall reimburse Landlord
upon demand for all costs reasonably incurred by Landlord in connection with
such demolition, removal and/or restoration.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused
this Work Letter Agreement to be duly executed by their duly authorized
representatives as of the date of the Lease.
TENANT: LANDLORD:
___________________ CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust, its
general partner
BY: __________________________ BY:___________________________
Name: Name:
Title: Title:
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39
EXHIBIT E
MEMORANDUM OF ACCEPTANCE OF LEASE
LANDLORD: CABOT INDUSTRIAL PROPERTIES, L.P.
TENANT: ___________________________________
LEASE DATE: ___________________________________
PREMISES: Located at ________________________
Tenant hereby accepts the Premises as being in the condition required
under the Lease, with all Landlord's Work completed (except for minor punchlist
items which Landlord agrees to complete).
The Commencement Date of the Lease is hereby established as
________________, and the Expiration Date is _______________________.
TENANT: __________________________________,
a _________________________________
By: _______________________________
Print Name: _______________________
Its: ___________________________
Date: __________________________
By: _______________________________
Print Name: _______________________
Its: ___________________________
Date: __________________________
Approved and Agreed:
LANDLORD:
CABOT INDUSTRIAL PROPERTIES, L.P.
By:
By: _________________________
Name: ____________________
Title: ___________________
X-0
00
XXXXXXX X
XXXXXXXX OF LEASE
[Intentionally Omitted]
F-1
41
EXHIBIT G
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the
information provided by you in this Hazardous Materials Disclosure Certificate
is necessary for the Landlord (identified below) to evaluate and finalize a
lease agreement with you as lessee. After a lease agreement is signed by you and
the Landlord (the "Lease"), on an annual basis in accordance with the provisions
of Article 9 of the signed Lease, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the Initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, members,
partners, shareholders, advisors or representatives against any claim or demand,
and (iv) any laws, rules, regulations, orders, decrees, or ordinances,
including, without limitation, court orders or subpoenas. Any and all
capitalized terms used herein, which are not otherwise defined herein, shall
have the same meaning ascribed to such term in the signed Lease. Any questions
regarding this certificate should be directed to, and when completed, the
certificate should be delivered to:
Landlord: Cabot Industrial Properties, L.P.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: ___________________________
PLEASE COMPLETE FROM THIS POINT FORWARD
Name of Tenant:
Mailing Address:
Contact Person, Title and Telephone Number(s):
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
Address of Premises:
Length of Initial Term:
1. GENERAL INFORMATION
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled, services and activities to be provided or otherwise
conducted. Existing lessees should describe any proposed changes to on-going
operations.
________________________________________________________________________________
________________________________________________________________________________
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises' Existing lessees
should describe any Hazardous Materials which continue to be
used, generated, stored or disposed of in, on or about the
Premises.
G-1
42
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If yes is marked, please explain: ____________________________
_____________________________________________________________.
2.2 If Yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or disposed
of in, on or about the Premises, including the applicable
hazard class and an estimate of the quantities of such
Hazardous Materials at any given time; estimated annual
throughput; the proposed location(s) and method of storage
(excluding nominal amounts of ordinary household cleaners and
janitorial supplies which are not regulated by any
Environmental Laws); and the proposed location(s) and method
of disposal for each Hazardous Material, including, the
estimated frequency, and the proposed contractors or
subcontractors. Existing lessees should attach a list setting
forth the information requested above and such list should
include actual data from on-going operations and the
identification of any variations in such information from the
prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises' Existing lessees should
describe any such actual or proposed activities.
Yes [ ] No [ ]
If yes is marked, please explain: ____________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing lessees should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly report as a
hazardous waste generator? Existing lessees should describe
any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
G-2
43
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
____________ storm drain? _________________ sewer?
____________ surface water? __________________ no wastewater
or other
wastes
discharged.
Existing lessees should indicate actual discharges. If so,
describe the nature and return of any proposed or actual
discharge(s).
______________________________________________________________
______________________________________________________________
______________________________________________________________
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be
conducted. Existing lessees should describe the actual
treatment conducted.
______________________________________________________________
______________________________________________________________
______________________________________________________________
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the Premises
that will discharge into the air, and will such air emissions
be monitored? Existing lessees should indicate whether or not
there are any such air filtration systems or stacks in use in,
on or about the Premises which discharge into the air and
whether such air emissions are being monitored.
Yes [ ] No [ ]
If yes, please describe: _____________________________________
______________________________________________________________
______________________________________________________________
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing lessees should specify any such equipment
being operated in, on or about the Premises.
______ Spray booth(s) __________ Incinerator(s)
______ Dip tank(s) __________ Other (Please Describe)
______ Drying oven(s) __________ No Equipment Requiring
Air Permits
If yes, please describe: _____________________________________
______________________________________________________________
______________________________________________________________
G-3
44
7. HAZARDOUS MATERIALS DISCLOSURE
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements? Existing lessees should
indicate whether or not a Management Plan is required and has
been prepared.
Yes [ ] No [ ]
If Yes, attach a copy of the Management Plan. Existing lessees
should attach a copy of any required updates to the Management
Plan.
7.2 [Applicable to California only] Are any of the Hazardous
Materials, and in particular chemicals, proposed to be used in
your operations in, on or about the Premises regulated under
Proposition 65? Existing lessees should indicate whether or
not there are any new Hazardous Materials being so used which
are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, please describe: _____________________________________
______________________________________________________________
______________________________________________________________
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees or has your
company received requests for information, notice or demand
letters, or any other inquiries regarding its operations?
Existing lessees should indicate whether or not any such
actions, orders or decrees have been, or are in the process of
being, undertaken or if any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing lessees should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Landlord pursuant to the provisions of
Article 9 of the Lease.
______________________________________________________________
______________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
lessees should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Article 9 of the Lease.
G-4
45
______________________________________________________________
______________________________________________________________
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety
concerns? Existing lessees should indicate whether or not
there have been any such problems or complaints from adjacent
tenant, owners or other neighbors at, about or near the
Premises.
Yes [ ] No [ ]
If yes, please describe. Existing lessees should describe any
such problems or complaints not already disclosed to Landlord
under the provisions of the Lease.
______________________________________________________________
______________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
issued to your company with respect to its proposed operations
in, on or about the Premises, including, without limitation,
any wastewater discharge permits, air emissions permits, and
use permits or approvals. Existing lessees should attach
copies of any new permits and licenses as well as any renewals
of permits or licenses previously issued.
G-5
46
The undersigned hereby acknowledges and agrees that this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease, and
will be attached thereto as an exhibit. The undersigned further acknowledges and
agrees that this Hazardous Materials Disclosure Certificate is being delivered
in accordance with, and as required by, the provisions of Article 9 of the
Lease. The undersigned further acknowledges and agrees that the Landlord and its
partners, members, lenders, employees, agents and representatives may, and will,
rely upon the statements, representations, warranties, and certifications made
herein and the truthfulness thereof in entering into the Lease and the
continuance thereof throughout the term, and any renewals thereof, of the Lease.
I (print name) _____________________ acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent and
warrant that the information contained in this certificate is true and correct.
TENANT:
By: _____________________________
Its: ________________________
Date: ___________________________
G-6
47
EXHIBIT H
SCHEDULE OF BASE RENT
LEASE PERIOD ANNUAL BASE RENT MONTHLY BASE RENT
--------------------------------------------------------------------------------
Months 1-12 $199,886.00 $16,657.17
Months 13-24 $205,882.58 $17,156.88
Months 25-36 $212,059.06 $17,671.59
Months 37-48 $218,420.83 $18,201.74
Months 49-60 $224,973.45 $18,747.79
together with applicable sales or use tax thereon
H-1
48
EXHIBIT I
IMPROVEMENTS
Landlord shall complete the following Improvements:
(i) renovate the approximately 3,376 square feet of existing office space and
restrooms (such renovation to be mutually agreed upon by Landlord and Tenant).
Landlord shall contribute $51,000.00 toward the cost of the renovation of the
office space and restrooms and ADA compliance. If the cost of the renovation of
the office space and restrooms and ADA compliance exceeds $51,000.00, such
overage amount shall be paid by Tenant to Landlord prior to Tenant occupying the
Premises;
(ii) split the electrical service, and install a separate electrical meter
for the Premises;
(iii) service and repair 18 overhead doors;
(iv) install six (6) exit lights and six (6) emergency lights; (v) install
exterior tenant signage;
(vi) service five (5) existing exhaust fans;
(vii) paint 18 overhead doors;
(viii) repair the floor in the warehouse and cooler area; and
(ix) construct one (1) two-hour demising wall.
I-1
