ATLANTA SPACE LEASE
INDUSTRIAL BUILDING LEASE
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This Industrial Building Lease is made and entered into as of the 26 day
of September, 2003, by and between the Landlord and Tenant, named below.
SECTION 1. BASIC TERMS
This SECTION 1 contains the Basic Terms of this Lease between Landlord
and Tenant, named below. Other Sections of the Lease referred to in this SECTION
1 explain and define the Basic Terms and are to be read in conjunction with the
Basic Terms.
1.1 DATE OF LEASE: September 26, 2003.
1.2 LANDLORD: Duke Realty Limited Partnership, an Indiana limited
partnership.
1.3 TENANT: Tractor Supply Company, a Delaware corporation.
1.4 PREMISES: Suite 100 of the Building, containing approximately
260,578 rentable square feet, approximately 9,902 square feet of which is office
space, the Office Parking, the Trailer Parking, the Additional Trailer Parking,
and the Signs, all as hereinafter defined. In addition, commencing as of
November 1, 2005, the Premises shall include an additional 51,600 rentable
square feet contiguous to the existing Premises (the "Expansion Space"). The
Premises is depicted on the Site Plan attached hereto as EXHIBIT B-3.
1.5 PROPERTY: That certain real property depicted on EXHIBIT A
attached hereto, and having a street address of 000 Xxxxxxx 000, Xxxxxxxxx,
Xxxxxxx.
1.6 LEASE TERM: The initial lease term (the "Initial Term") shall be
for the period of time commencing as of the date (the "Commencement Date") that
Substantial Completion (as hereinafter defined) of the Tenant Improvements (as
hereinafter defined) occurs, and ending on the last day of January, 2014 unless
sooner terminated as provided in this Lease (the "Expiration Date"), and subject
to extension as set forth in SECTION 2.2 below.
1.7 TARGET COMMENCEMENT DATE: The ninetieth (90th) day following the
Date of Lease.
1.8 RENT COMMENCEMENT DATE: February 1, 2004.
1.9 PERMITTED USES: (See SECTION 3) (a) Warehouse, distribution and
sale of tractor, farm and ranch supplies and equipment, and light assembly of
same, (b) storage of retail farm store and related products sold at Tractor
Supply Company stores, and (c) office and administrative uses ancillary thereto.
1.10 BROKERS: Xxxxx and Xxxxx Company representing Tenant, and Duke
Realty Services Limited Partnership representing Landlord.
1.11 BUILDING: The building located on the Property commonly known as
Braselton II, located within the Braselton Business Center.
1.12 SECURITY DEPOSIT: None.
1.13 BASE RENT: The Base Rent payable by Tenant (from and after the
Rent Commencement Date) is set forth on EXHIBIT C attached hereto.
1.14 AGENT OR MANAGEMENT AGENT: Duke Realty Services Limited
Partnership, its successors and assigns.
1.15 MANAGEMENT FEE: Commencing February 1, 2004 and (a) during the
first two Lease Years (as hereinafter defined) of the Lease Term, an amount
equal to 1% of the Base Rent and CAM Charges (excluding the Management Fee) for
the respective Lease Year; (b) during the
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third, fourth, and fifth Lease Years of the Lease Term, an amount equal to 2% of
the Base Rent and CAM Charges (excluding the Management Fee) for the respective
Lease Year; and (c) during each Lease Year for the remainder of the Lease Term,
an amount equal to 3% of the Base Rent and CAM Charges (excluding the Management
Fee) for the respective Lease Year. For purposes hereof, the term "Lease Year"
shall refer to each successive period of twelve (12) months, commencing as of
the Rent Commencement Date, and the term "Lease Years" shall refer to two or
more of such periods; provided, however, that the first (1st) Lease Year shall
also include the period commencing as of the Commencement Date and continuing
through and including January 31, 2004.
1.16 EXHIBITS AND RIDERS TO LEASE: The following exhibits and riders
are attached to and made a part of this Lease: EXHIBIT A (DEPICTION OF
PROPERTY), EXHIBIT B (CONSTRUCTION DRAWINGS), EXHIBIT B-1 (SCOPE OF WORK),
EXHIBIT B-2 (LOAD BEARING CAPACITY), EXHIBIT B-3 (SITE PLAN), EXHIBIT B-4
(COMPUTER ROOM), EXHIBIT C (RENT AND LANDLORD ADDRESS), EXHIBIT D (LETTER OF
UNDERSTANDING), EXHIBIT E (BUILDING SIGN).
SECTION 2. LEASE OF PREMISES; RENT
2.1 LEASE OF PREMISES FOR LEASE TERM. Landlord hereby leases the
Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for the
Lease Term, subject to the conditions of this Lease. Notwithstanding the
foregoing, to the extent permitted by applicable laws, rules and regulations,
Tenant shall have the right to enter the Premises commencing as of the Date of
Lease in order to install fixtures and otherwise prepare the Premises for
occupancy (which right shall expressly exclude making any structural
modifications), provided, that, during any entry prior to the Commencement Date,
Tenant shall (a) comply with all the terms and conditions of this Lease except
the obligation to pay Base Rent and Tenant's Proportionate Share of CAM Charges,
(b) not interfere with the Landlord's completion of the Tenant Improvements, (c)
cause its personnel and contractors to comply with the terms and conditions of
Landlord's rules of conduct (which Landlord shall furnish to Tenant upon
request), and (d) not begin operation of its business, though Tenant may receive
and store merchandise. Tenant acknowledges that it shall be responsible for
obtaining any and all permits and inspections relating to any early entry by
Tenant. Promptly following the Commencement Date, Tenant shall execute
Landlord's Letter of Understanding in substantially the form attached hereto as
EXHIBIT D, acknowledging (i) the Commencement Date of this Lease, and (ii)
except for any punchlist items, that Tenant has accepted the Premises.
2.2 RENEWAL TERM.
(a) Provided that (i) this Lease is in full force and effect and
Tenant is not then in default under the terms hereof that is continuing, and
(ii) the entirety of the Premises is occupied by the original Tenant named
herein (or any Permitted Transferee), Landlord hereby grants to Tenant the
option to extend the Lease Term (the "Renewal Option") for three (3) consecutive
periods of three (3) years (each, a "Renewal Term" and collectively, the
"Renewal Terms"), on the same terms, conditions and provisions as contained in
this Lease, except that (A) this provision giving three (3) extension options
shall be amended to reflect the remaining options to extend, if any, (B) any
improvement allowances or other concessions applicable to the Premises during
the Initial Term shall not apply to the Renewal Term, and (C) the Base Rent
shall be adjusted as set forth herein. The Initial Term, as extended by the
Renewal Terms, if applicable, is herein referred to as the "Term" or the "Lease
Term". In order to exercise each Renewal Option, Tenant must give Landlord
written notice (each, a "Renewal Notice") not less than six (6) months prior to
the applicable Expiration Date of the Initial Term or the immediately preceding
Renewal Term, as the case may be.
(b) The annual Base Rent for the Premises during each Renewal Term
shall be equal to the then-prevailing Market Rental Rate (as hereinafter
defined). "Market Rental Rate" shall mean the annual rate of net rent, on a per
rentable square foot basis, then prevailing in the greater Northeast Atlanta
sub-market for (i) premises comparable in square footage, location and design to
the Premises and (ii) premises being leased for a duration comparable to the
Renewal Term. Landlord shall determine the Market Rental Rate by taking into
consideration comparable relevant fact situations involving arm's length
negotiations in new and renewal leases during the 12-month period prior to the
applicable Renewal Term and other relevant factors. Within sixty (60) days
following Tenant's delivery of the Renewal Notice to Landlord, Landlord shall
notify
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Tenant of Landlord's determination of the Market Rental Rate for the Premises
for the applicable Renewal Term. Tenant shall have thirty (30) days following
receipt of Landlord's determination (the "Response Period") in which to accept
or reject such determination. If Tenant fails to respond within the Response
Period, Tenant shall automatically be deemed to have rejected Landlord's
determination and, therefore, the then-applicable Renewal Notice shall
automatically be deemed to have been withdrawn and rendered null and void and
Tenant shall automatically be deemed to have irrevocably waived its rights under
this SECTION 2.2. If Tenant timely notifies Landlord that Tenant rejects
Landlord's determination then, in such notice of rejection, Tenant shall set
forth Tenant's determination of Market Rental Rate, and if Landlord and Tenant,
each acting in good faith, fail to agree upon the Market Rental Rate for the
applicable Renewal Term within ten (10) days following Tenant's delivery of
Tenant's rejection notice (the "Resolution Period"), then the then-applicable
Renewal Notice shall automatically be deemed to have been withdrawn and rendered
null and void and Tenant shall automatically be deemed to have irrevocably
waived its rights under this SECTION 2.2. If Tenant accepts Landlord's
determination of the Market Rental Rate within the Response Period, or Landlord
and Tenant mutually agree upon the Market Rental Rate during the Resolution
Period, each of Landlord and Tenant shall execute promptly an amendment to this
Lease reflecting the terms and conditions of the Renewal Term.
2.3 EXPANSION OPTION.
(a) Commencing as of November 1, 2005, the Premises shall be
expanded to include an additional 51,600 rentable square feet contiguous to the
existing Premises (the "Expansion Space"), as shown on the site plan attached
hereto as EXHIBIT B-3. Thereafter, the Expansion Space shall be deemed a part of
the Premises for all purposes hereunder. If Tenant occupies all or any portion
of the Expansion Space prior to November 1, 2005, then notwithstanding anything
to the contrary set forth herein, Tenant's lease of the Expansion Space shall be
deemed to occur as of such occupancy, including, without limitation, Tenant's
obligation to pay Base Rent and Additional Rent with respect to the Expansion
Space.
(b) In addition, commencing as of the Date of Lease and continuing
through and including the last day of the sixth (6th) month following the
Commencement Date, and provided that no default has occurred and is then
continuing, Landlord hereby grants to Tenant a right of first refusal (the
"Right of First Refusal") to expand the Premises to include any space in the
Building that is adjacent to the Premises (the "Refusal Space"), subject to the
following terms and conditions:
(i) Subject to the other terms of this Right of First
Refusal, after any part of the Refusal Space has or will become "Available
Refusal Space" (as defined herein) for leasing by Landlord, Landlord shall not,
during the term of this Lease, lease to another tenant that available portion of
the Refusal Space without first offering Tenant the right to lease such Refusal
Space.
(ii) Space shall be deemed to become "Available Refusal
Space" in the event Landlord either (A) receives a bona fide proposal for the
lease of some or all of the Refusal Space from a third party that Landlord
desires to secure, or (B) makes a bona fide proposal for the lease of some or
all of the Refusal Space to a third party that Landlord desires to secure and
that such third party is willing to accept.
(iii) Consistent with subsection (i) above, Landlord shall not
lease any Available Refusal Space unless and until Landlord has first offered
the Available Refusal Space to Tenant in writing (the "Offer"). The Offer shall
contain the following terms that have been offered by Landlord to the third
party, or by the third party to Landlord and such terms are acceptable to
Landlord: (A) a description of the Available Refusal Space, (B) the date on
which Landlord expects the Available Refusal Space to be leased, (C) the Base
Rent for the Available Refusal Space, (D) the term for the lease of the
Available Refusal Space, and (E) the tenant improvement allowance, if any, being
provided by Landlord with respect to the Available Refusal Space.
(iv) Upon receipt of the Offer, Tenant shall have the right,
for a period of five (5) business days after receipt of the Offer, to exercise
the Right of First Refusal by giving Landlord written notice that Tenant desires
to lease the Available Refusal Space upon the terms
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and conditions as are contained in the Offer modified as follows: (A)
notwithstanding the term for the lease of the Available Refusal Space set forth
in the Offer, the term of Tenant's lease of the Available Refusal Space shall be
coterminous with the Lease Term then in effect hereunder, and (B) if the Lease
Term then in effect hereunder is less than the term for the lease of the
Available Refusal Space set forth in the Offer, the base rent and the tenant
improvement allowance, if any, set forth in the Offer shall be prorated
accordingly.
(v) If, within such five (5) business day period, Tenant
exercises the Right of First Refusal, then Landlord and Tenant shall amend the
Lease to include the Refusal Space subject to the same terms and conditions as
the Lease, as modified in accordance with this subsection (b). In addition, such
amendment will reflect the increase in Tenant's Proportionate Share. If, within
such five (5) business day period, Tenant declines or fails to exercise the
Right of First Refusal, Landlord shall then have the right to lease the
Available Refusal Space as long as Landlord enters into a lease with a third
party under the basic terms and conditions contained in the Offer. If Landlord
does not enter into a lease with a third party under the terms and conditions
contained in the Offer within one hundred eighty (180) days after Tenant
declines or fails to exercise the Offer, or if Landlord desires to materially
alter or modify the terms and conditions of the Offer, Landlord shall be
required to present the altered or modified Offer to Tenant pursuant to this
Right of First Refusal, in the same manner that the original Offer was submitted
to Tenant.
(vi) This Right of First Refusal is personal to Tractor
Supply Company and shall automatically terminate and be of no further force and
effect if Tractor Supply Company assigns or sublets all or any portion of its
interest in the Lease.
(c) Without limiting anything set forth in subsections (a) or (b)
above, commencing as of the first day of the seventh (7th) month following the
Commencement Date, and provided that no default has occurred and is then
continuing hereunder, Landlord hereby grants to Tenant a right of first offer
(the "Right of First Offer") to expand the Premises to include any space in the
Building that is adjacent to the Premises (the "Offer Space"), subject to the
following terms and conditions:
(i) Landlord shall notify Tenant in writing ("Landlord's
Notice") of the availability of any Offer Space prior to entering into a lease
with a third party for any of such Offer Space. Tenant shall have ten (10)
business days from receipt of Landlord's Notice to exercise its Right of First
Offer by delivering to Landlord written notice agreeing to lease such space on
the terms and conditions contained in Landlord's Notice. If Tenant fails to
deliver such notice within ten (10) business days, Tenant shall be deemed to
have waived such option and Landlord may lease the Offer Space to a third party;
provided, however, if (A) Landlord fails to lease the Offer Space to a third
party within ninety (90) days (or, if at the end of said ninety (90) day period,
Landlord is actively negotiating with a third party, then within one hundred
eighty (180) days) after Tenant's rejection (or deemed rejection) of the Offer
Space, or (B) Landlord elects to lease the Offer Space for less than the base
rental, or on terms and conditions materially different than those stated in
Landlord's Notice, Tenant shall again have the first opportunity to lease the
Offer Space in accordance with this subsection (c). Tenant acknowledges that
Tenant must exercise its right granted in this subsection (c) with respect to
the entire Offer Space and any exercise of such right with respect to only a
portion of the Offer Space shall be null and void. For purposes of this
paragraph, the phrase "actively negotiating" shall mean that a draft lease has
been prepared by either Landlord or said third party and the other party has
given comments with respect to such draft lease.
(ii) In the event Tenant accepts the Offer Space pursuant to
clause (i) above, Tenant shall lease the Offer Space subject to the same terms
and conditions of the Lease, as modified by the terms and conditions of
Landlord's Notice; provided, however, that (A) except as otherwise expressly set
forth in Landlord's Notice, no improvement allowances or other concessions
contained in the Lease, if any, shall apply to the Offer Space, and (B) the term
of Tenant's lease of the Offer Space shall be the greater of sixty (60) months
or the number of months necessary to make the term of Tenant's lease of the
Offer Space coterminous with the term for the original Premises. If the term of
the Offer Space would then exceed the Lease Term for the original Premises, the
Lease Term for the original Premises shall be extended automatically to the
extent necessary to be coterminous with the term for the Offer Space. If the
Lease Term for the original Premises is extended as aforesaid, the Base Rent per
rentable square
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foot for the original Premises during any such extended term shall be Landlord's
reasonable determination of the Market Rental Rate for such space.
(iii) If Tenant accepts the Offer Space pursuant to clause (i)
above, at the option of either Landlord or Tenant, Landlord and Tenant shall
enter into an amendment confirming Tenant's lease of the Offer Space on the
aforesaid terms.
(iv) This Right of First Offer is personal to Tractor Supply
Company and shall automatically terminate and be of no further force and effect
in the event that Tractor Supply Company assigns or sublets all or any portion
of its interest in the Lease.
2.4 RENTAL PAYMENTS. Commencing on the Rent Commencement Date,
Tenant shall pay the Base Rent in equal monthly installments, in advance, on the
first day of each and every calendar month during the term of this Lease. Base
Rent for any partial calendar month shall be prorated. In addition, Tenant shall
pay Additional Rent as set forth in SECTION 2.5 below.
2.5 ADDITIONAL RENT.
(a) GENERAL. Any amount required to be paid by Tenant
hereunder (in addition to Base Rent) and any charges or expenses incurred by
Landlord on behalf of Tenant under the terms of this Lease shall be considered
"Additional Rent" payable in the same manner and upon the same terms and
conditions as the Base Rent reserved hereunder except as set forth herein to the
contrary. Any failure on the part of Tenant to pay such Additional Rent when and
as the same shall become due shall entitle Landlord to the remedies available to
it for non-payment of Base Rent.
(b) COMMON AREA. The term "Common Area" shall mean all areas
within the boundaries of the Property available for the non-exclusive use of
Tenant and other persons leasing or occupying space on the Property. Without
limiting the foregoing, Common Areas shall include parking, access and perimeter
roads, landscaped areas, sidewalks, and common utility facilities, if any,
serving the Property.
(c) CAM CHARGES. As used herein, the term "Common Area
Maintenance Charges" or "CAM Charges" shall mean the cost for the operation,
repair, replacement and maintenance of the Building and Common Areas, including,
but not limited to, the following: (i) operating, maintaining, repairing,
lighting, cleaning, sweeping, painting, paving and striping and removing snow,
ice and debris from the Common Areas; (ii) removing garbage and trash from the
Common Areas; (iii) landscaping; (iv) electricity and other utilities used with
respect to the Common Areas, including, without limitation, electricity for
lighting the Common Areas; (v) insurance premiums and deductibles, Taxes (as
hereinafter defined), subject to reduction for Landlord's participation in the
Tax Abatement Program pursuant to SECTION 22 below; (vi) the Management Fee,
(vii) fees and assessments imposed by any covenants or owners' associations,
(viii) access patrols, and (ix) maintaining, repairing and replacing the
exterior walls, foundation, structural frame, roof and gutters of the Building.
The cost of any CAM Charges that are capital in nature shall be amortized over
the useful life of such improvement (as reasonably determined by Landlord), and
only the amortized portion shall be included in CAM Charges. For purposes of
this Lease, CAM Charges shall not include the following: (1) principal and
interest payments on any mortgages, deeds of trust or other financing
encumbrances; (2) leasing commission payable by Landlord; (3) depreciation; (4)
the cost of initial construction of the Building and Common Areas; (5) the cost
of repairs or replacements necessitated by Landlord's negligence; (6)
administrative fees, expenses and overhead charges in excess of the Management
Fee; (7) advertising costs; (8) legal fees and expenses, including, without
limitation, those relating to leasing and enforcement of other leases, but
excluding any legal fees and expenses incurred in connection with any tax
contest; (9) the cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation for which Landlord is reimbursed or compensated
therefor through proceeds of insurance or condemnation awards; and (10) costs to
repair latent defects in the Building discovered prior to the fourth (4th)
anniversary of the Commencement Date. For purposes hereof, Taxes shall include
any form of real estate tax or assessment or service payments in lieu thereof,
and any license fee, commercial rental tax, improvement bond or other similar
charge or tax (other than inheritance, personal income or estate taxes) imposed
upon the Building or the Common Areas (or against Landlord's business of leasing
the Building) by any
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authority having the power to so charge or tax, together with costs and expenses
of contesting the validity or amount of the Taxes.
(d) PERSONAL PROPERTY TAXES. Additionally, Tenant shall pay,
prior to delinquency, all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all personal property of Tenant contained in the
Premises.
(e) TENANT'S PROPORTIONATE SHARE.
(i) Tenant agrees to pay as Additional Rent
"Tenant's Proportionate Share" (as herein defined) of CAM Charges.
(ii) Landlord shall estimate the total amount of CAM
Charges to be paid by Tenant during each calendar year of the Lease Term,
pro-rated for any partial years. Commencing on the Rent Commencement Date,
Tenant shall pay to Landlord each month, at the same time the Base Rent
installments are due, an amount equal to one-twelfth (1/12th) of the estimated
CAM Charges for such year. Within a reasonable time after the end of each
calendar year, Landlord shall submit to Tenant a statement of the actual amount
of such CAM Charges (the "Annual Statement") and within thirty (30) days after
receipt of such statement, Tenant shall pay any deficiency between the actual
amount owed and the estimates paid during such calendar year. In the event of
overpayment, Landlord shall credit the amount of such overpayment toward the
next installments of Base Rent.
(iii) Tenant shall have the right, at any reasonable
time within ninety (90) days following receipt of the Annual Statement, to
review Landlord's books and records relating to CAM Charges, provided that
Tenant shall give Landlord not less than fifteen (15) days' prior written notice
of any such review. In the event such review reveals a discrepancy in the CAM
Charges, Tenant's Proportionate Share of CAM Charges for such calendar year
shall be adjusted accordingly. If the review results in a change of more than
ten percent (10%) in Tenant's Proportionate Share of CAM Charges for such
calendar year, Landlord shall reimburse Tenant for the reasonable fees and
expenses of Tenant's independent professionals, if any, conducting such review
of Landlord's books and records. All of the information obtained through
Tenant's inspection with respect to financial matters (including, without
limitation, costs, expenses and income) and any other matters pertaining to
Landlord, the Premises, the Building and/or the business park in which the
Building is located as well as any compromise, settlement or adjustment reached
between Landlord and Tenant relative to the results of the inspection shall be
held in strict confidence by Tenant and its officers, agents, and employees; and
Tenant shall cause its independent professionals to be similarly bound. The
obligations within the preceding sentence shall survive the expiration or
earlier termination of the Lease.
(iv) For purposes of this Lease, "Tenant's
Proportionate Share" shall mean a fraction, the numerator of which shall be the
rentable area of the Premises, as set forth in EXHIBIT C, and the denominator of
which shall be the rentable area of the Building, as set forth in EXHIBIT C.
Tenant's Proportionate Share of the cost of CAM Charges (as set forth herein) in
any Lease Year having less than three hundred sixty-five (365) days shall be
equitably prorated.
(f) CAP ON CONTROLLABLE EXPENSES. Notwithstanding anything
in this Lease to the contrary, Tenant will be responsible for Tenant's
Proportionate Share of Taxes, insurance premiums, utilities, snow removal, costs
to maintain, repair and/or replace any dock doors and charges assessed against
or attributed to the Building pursuant to any applicable declaration of
protective covenants ("Uncontrollable Expenses"), without regard to the level of
increase in any or all of the above in any year or other period of time.
Tenant's obligation to pay all other Building expenses which are not
Uncontrollable Expenses (herein "Controllable Expenses") shall be limited to a
$0.02 per rentable square foot of space within the Premises per annum increase
over the amount the Controllable Expenses for the immediately preceding calendar
year would have been had the Controllable Expenses increased at the rate of
$0.02 per rentable square foot of space within the Premises in all previous
calendar years beginning with the actual Controllable Expenses for the year
ending December 31, 2004.
2.6 COVENANTS CONCERNING RENTAL PAYMENTS. Tenant shall pay the Base
Rent and Additional Rent (collectively, the "Rent") promptly when due, without
notice or demand, abatement, deduction or setoff, except as may otherwise be
expressly and specifically provided
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in this Lease. No payment by Tenant, or receipt or acceptance by Agent or
Landlord, of a lesser amount than the correct Rent shall be deemed to be other
than a payment on account, nor shall any endorsement or statement on any check
or letter accompanying any payment be deemed an accord or satisfaction, and
Agent or Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to Landlord. If
the Commencement Date occurs on a day other than the first day of a calendar
month, the Rent due for the first calendar month of the Term shall be prorated
on a per diem basis, and the term shall be extended to terminate at the end of
the calendar month in which the Expiration Date stated in SECTION 1.6 above
occurs.
2.7 OFFICE AND TRAILER PARKING.
(a) Tenant shall have the right throughout the Term to use (i) 123
automobile parking spaces in close proximity to the Premises (the "Office
Parking") and (ii) thirty-six (36) of the Building's trailer parking spaces (the
"Trailer Parking"), both as shown on EXHIBIT B-3 and which Landlord hereby
reserves for and allocates to Tenant. Landlord shall have no obligation to
police or monitor such reserved spaces; provided, however, Landlord shall xxxx
the Trailer Parking as being for Tenant's exclusive use. No vehicle may be
repaired or serviced in the parking area and any vehicle deemed abandoned by
Landlord will be towed from the project and all costs therein shall be borne by
the Tenant (but only after Tenant is given notice of such abandoned vehicle and
Landlord's intent to tow). All driveways and ingress and egress are for the
joint use of all tenants. There shall be no parking permitted on any of the
streets or roadways located within the business park in which the Building is
located.
(b) In addition, Tenant shall have the right throughout the Term to
use up to thirty-five (35) additional trailer parking spaces to be constructed
by Landlord on a portion of the adjacent land owned by Landlord (the "Additional
Trailer Parking Area"), said Additional Trailer Parking Area being shown on
EXHIBIT B-3 hereto. Landlord shall construct and install a fence around the
Additional Trailer Parking Area at a location mutually agreeable to Landlord and
Tenant, provided, that, Tenant shall reimburse Landlord for any actual costs
incurred to construct and install such fence to the extent in excess of $13,000.
Landlord estimates the actual cost to construct and install such fence to be
less than or equal to $13,000. Landlord shall use reasonable speed and diligence
to substantially complete the Additional Trailer Parking Area within one hundred
fifty (150) days after the Date of Lease, as such date may be extended due to
Force Majeure, as defined in SECTION 16.3 BELOW, or Tenant Delay, as defined in
SECTION 4.4(C) above (the "Additional Trailer Parking Date"). If Landlord fails
to substantially complete the Additional Trailer Parking Area on or before the
fifteenth (15th) day after the Additional Trailer Parking Date, Tenant shall
receive one (1) day of free Base Rent and Tenant's Proportionate Share of CAM
Charges for each day after such fifteenth (15th) day that the Additional Trailer
Parking Area is not substantially complete. Except as set forth in this
subsection (b), no liability whatsoever shall arise or accrue against Landlord
by reason of its failure to substantially complete the Additional Trailer
Parking Area on or before the Additional Trailer Parking Date, and Landlord's
inability to complete the Additional Trailer Parking Area on or before said date
shall not have any effect on Substantial Completion or the Commencement Date.
SECTION 3. USE OF PREMISES
3.1 USE OF PREMISES. The Premises shall be used for the purpose(s)
set forth in SECTION 1.8 and for no other purpose without Landlord's prior
consent, which consent shall not be unreasonably withheld, conditioned or
delayed. Tenant shall not, at any time, knowingly use or occupy, or suffer or
permit anyone to use or occupy, the Premises, or do or permit anything to be
done in the Premises, in any manner that may (a) violate any Certificate of
Occupancy for the Premises or the Property; (b) cause, or be liable to cause,
injury to the Property or any equipment, facilities or systems therein; (c)
constitute a violation of the laws and requirements of any public authority or
the requirements of insurance bodies or the rules and regulations of the
Property now in force or which may hereafter be in force, including, without
limitation, any recorded covenant, condition or restriction affecting the
Property; (d) obstruct or interfere with the rights of other tenants or
occupants of the Building or other buildings located within the business park;
or (e) exceed the load bearing capacity of the floor of the Premises as set
forth in EXHIBIT B-2. In addition, Tenant shall not use the Premises, or allow
the Premises to be used, for any purpose or in any manner which would invalidate
any policy of insurance now or hereafter carried on the Building or increase the
rate of premiums payable on any such insurance policy
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unless Tenant reimburses Landlord as Additional Rent for any increase in
premiums charged. To Landlord's knowledge, the use of the Premises by Tenant for
the Permitted Use will not invalidate the policy of insurance currently carried
by Landlord with respect to the Building or increase the rate of premiums
payable on such policy. If any items stored at the Premises create a nuisance,
or otherwise unreasonably interfere with the rights or other tenants or
occupants of the Building or other buildings located within the business park,
upon written notice from Landlord, Tenant shall take such action as is necessary
to cure the problem. If Tenant fails to cure said problem within a reasonable
period of time under the circumstances, Landlord shall have the right, but not
the obligation, to take such action as Landlord determines is necessary to cure
such problem, and Tenant shall reimburse Landlord for all costs and expenses in
connection therewith as Additional Rent. Landlord shall not be responsible to
Tenant for the nonperformance by any other tenant or occupant of the Building of
its lease or of any rules and regulations; provided, however, that Landlord will
enforce all rules and regulations with respect to the Building uniformly.
3.2 SIGNAGE. Tenant, at Tenant's sole cost and expense, shall have
the right to (i) install a Building-mounted identification sign (the "Building
Sign"), substantially in the form of EXHIBIT E attached hereto, not greater than
ten (10) feet by thirty (30) feet in size, which shall include Tenant's name
and/or logo, on the parapet wall at the top of the Building, and (ii) install a
"V" shaped monument sign (the "Monument Sign") not greater than eight (8) feet
by twenty-four (24) feet in size, which shall include Tenant's name and/or logo,
at the front of the Building at a location mutually acceptable to Landlord and
Tenant. Tenant shall be required to ensure that each of the Building Sign and
Monument Sign (collectively, the "Signs"), and Tenant's installation thereof,
complies with all laws, rules, regulations and ordinances encumbering the
Building; provided, however, that Landlord agrees reasonably to assist Tenant in
connection therewith at no cost to Landlord. Without limiting the foregoing,
Tenant acknowledges and agrees that Tenant shall be solely responsible for
ensuring that the Signs comply with any protective covenants that encumber the
Building as of the date of this Lease, and that any failure by Tenant to comply
with the terms of said protective covenants (including, without limitation,
obtaining any approvals therein required) shall be at Tenant's sole risk and
expense. The location, materials, coloring, lettering, lighting and method of
installation of the Signs shall be subject to Landlord's prior approval, which
approval shall not be unreasonably withheld, conditioned or delayed. Tenant
shall maintain the Signs in good condition and repair and in compliance with all
Laws (as hereinafter defined). On or before the expiration or earlier
termination of the Lease, Tenant shall be responsible for removing the Signs and
returning the surrounding premises to their original condition, reasonable wear
and tear excepted. Tenant shall place no other signage on the exterior of the
Premises without the prior written consent of Landlord; provided, however, that
Tenant shall have the right to place numbering on the truck docks so long as the
location, materials, coloring, lettering, lighting and method of installation of
such numbering is approved by Landlord. Landlord may immediately remove any
signs not in conformity with the Lease.
3.3 FLAGPOLE. Tenant shall have the right, at Tenant's sole cost and
expense, to install a flagpole displaying the flag of the United States of
America and/or a flag displaying Tenant's name and/or logo (the "Flagpole"),
within the Common Areas outside the Building, provided that (i) the design
(including, without limitation, color and materials), contractor and precise
location of the Flagpole are reasonably satisfactory to Landlord, and (ii)
Tenant's installation, use and maintenance of the Flagpole is in accordance with
all applicable federal, state and local laws and regulations, all cultural
requirements (i.e., the flag must be either lit or taken down at night), and all
covenants encumbering the Building and this Lease. Tenant shall be solely
responsible for obtaining any necessary permits and licenses required for the
installation, operation and maintenance of the Flagpole; provided, however, that
Landlord agrees reasonably to assist Tenant in connection therewith at no cost
to Landlord. Tenant shall at all times keep the Flagpole in a clean and orderly
condition. Upon the expiration or any earlier termination of the Lease, at
Landlord's option (to be exercised, if at all, within thirty (30) days following
the expiration or any earlier termination of the Lease), Tenant shall be
responsible for all costs of removal of the Flagpole. Tenant shall also be
responsible for all costs associated with restoring the Common Areas to their
original condition after such removal. Tenant agrees, within thirty (30) days
after written notice from Landlord, to remove the Flagpole in the event any
governmental entity or applicable law or regulation requires removal thereof
after the expiration of any applicable appeal period or Tenant fails to comply
materially with the terms stated in this
8
SECTION 3.3. Tenant's obligations hereunder shall survive the expiration or
earlier termination of the Lease.
SECTION 4. CONDITION AND DELIVERY OF PREMISES
4.1 CONDITION OF PREMISES. Landlord shall construct and install
improvements to the Premises in accordance with this SECTION 4.
4.2 OFFICE PORTION OF INITIAL 260,578 SQUARE FEET. Landlord shall
construct and install leasehold improvements to a 7,917 square foot, and 1985
square foot office area located within the Premises (the "Office Improvements")
based on the construction drawings and office scope of work attached hereto as
EXHIBIT B (collectively, the "Construction Drawings") and in accordance with the
terms set forth herein.
(a) Upon execution of this Lease by Tenant, Tenant shall
deliver to Landlord $114,795.93 as partial payment for Tenant's share of the
cost to construct and install the Office Improvements. Tenant's failure to
deliver said payment shall be a Tenant Delay. Following Substantial Completion,
Tenant shall pay to Landlord $114,795.92, representing the remaining portion of
Tenant's share of the cost to construct and install the Office Improvements.
(b) Landlord shall provide Tenant with a proposed schedule
for the construction and installation of the Office Improvements and shall
notify Tenant of any material changes to said schedule. Tenant agrees to
coordinate with Landlord regarding the installation of Tenant's phone and data
wiring and any other trade related fixtures that will need to be installed in
the office portion of the Premises prior to Substantial Completion.
(c) Tenant shall have the right to request changes to the
Construction Drawings at any time by way of written change order (each, a
"Change Order", and collectively, "Change Orders"). Provided such Change Order
is reasonably acceptable to Landlord, Landlord shall prepare and submit promptly
to Tenant a memorandum setting forth the impact on cost and schedule resulting
from said Change Order (the "Change Order Memorandum of Agreement"). Tenant
shall, within three (3) business days following Tenant's receipt of the Change
Order Memorandum of Agreement, either (i) execute and return the Change Order
Memorandum of Agreement to Landlord, or (ii) retract its request for the Change
Order. Without limiting anything set forth in subsection (a) above, Tenant shall
pay to Landlord (or Landlord's designee), within fifteen (15) days following
Landlord's request, any increase in the cost to construct and install the Office
Improvements resulting from the Change Order, as set forth in the Change Order
Memorandum of Agreement. Landlord shall not be obligated to commence any work
set forth in a Change Order until such time as Tenant has delivered to Landlord
the Change Order Memorandum of Agreement executed by Tenant and, if applicable,
Tenant has paid Landlord in full for any increase in cost due to said Change
Order.
(d) Notwithstanding anything to the contrary contained
herein, upon an early termination of this Lease for any reason (including, but
not limited to, casualty or condemnation) other than for a Landlord default,
Tenant shall pay to Landlord, upon demand, all accrued and unpaid interest,
together with the unamortized portion of Landlord's cost to construct and
install the Office Improvements.
4.3 WAREHOUSE PORTION. Landlord shall construct and install the
following within the warehouse portion of the Premises, as designated in the
Scope of Work attached hereto as EXHIBIT B-1 (collectively the "Warehouse
Items": demising wall, 30,000 lbs. mechanical levelers, mechanical dock locks,
bumpers, a single 110v quadraplex receptacle and dock lights on all doors, two
(2) air changes per hour, an eyewash station, hose bib, ventilation system and
epoxy floor covering for 1,500 square feet. In addition, Tenant shall be
entitled to a $10,000 allowance for electrical costs and a $20,000 allowance for
lighting relocation, which electrical work and lighting relocation shall be
performed by Landlord.
4.4 SUBSTANTIAL COMPLETION.
(a) Landlord shall use reasonable efforts to Substantially
Complete that portion of the Office Improvements related to Tenant's computer
room (said computer room being shown on EXHIBIT B-4 attached hereto) and the
Warehouse Items (said portion of the
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Office Improvements and the Warehouse Items being referred to hereinafter,
collectively, as the "Phase I Improvements") on or before November 24, 2003, as
such date may be extended due to Force Majeure or Tenant Delay (the "Phase I
Date"). If Landlord fails to Substantially Complete the Phase I Improvements on
or before the fifteenth (15th) day after the Phase I Date, Tenant shall receive
one (1) day of free Base Rent and Tenant's Proportionate Share of CAM Charges
for each day after such fifteenth (15th) day that the Phase I Improvements are
not Substantially Complete. Except as set forth in this subsection (a), no
liability whatsoever shall arise or accrue against Landlord by reason its
failure to Substantially Complete the Phase I Improvements on or before the
Phase I Date.
(b) Without limiting subsection (a) above, Landlord shall
use reasonable efforts to Substantially Complete the remainder of the Office
Improvements (the "Phase II Improvements") on or before the Target Commencement
Date, as such date may be extended due to Force Majeure or Tenant Delay (the
"Phase II Date"). If Landlord fails to Substantially Complete the Phase II
Improvements on or before the fifteenth (15th) day after the Phase II Date,
Tenant shall receive one (1) day of free Base Rent and Tenant's Proportionate
Share of CAM Charges for each day after such fifteenth (15th) day that the Phase
II Improvements are not Substantially Complete. Except as set forth in this
subsection (b), no liability whatsoever shall arise or accrue against Landlord
by reason its failure to Substantially Complete the Phase II Improvements on or
before the Phase II Date.
(c) For purposes hereof, Substantial Completion (or any
grammatical variation thereof) shall mean, with respect to the Phase I
Improvements only, completion of construction of the Phase I Improvements,
subject only to punchlist items to be identified by Landlord and Tenant in a
joint inspection of the Phase I Improvements. For purposes hereof, Substantial
Completion (or any grammatical variation thereof) shall mean, with respect to
the Phase II Improvements only, completion of construction of the Phase II
Improvements, subject only to punchlist items to be identified by Landlord and
Tenant in a joint inspection of the Phase II Improvements, the completion of
which will not materially affect Tenant's use and occupancy of the Premises, as
established by the delivery by Landlord to Tenant of a certificate of occupancy
for the Premises issued by the appropriate governmental authority.
Notwithstanding anything to the contrary contained herein, if Substantial
Completion of the Phase I Improvements and/or the Phase II Improvements
(collectively, the "Tenant Improvements") is delayed beyond the Target
Commencement Date as a result of Tenant Delay (as hereinafter defined), then,
for purposes of determining the Commencement Date, Substantial Completion of the
Tenant Improvements shall be deemed to have occurred on the date that
Substantial Completion of the Tenant Improvements would have occurred but for
such Tenant Delay.
(d) For purposes hereof, Tenant Delay shall mean any delay
in the completion of the Tenant Improvements attributable to Tenant, including,
without limitation (i) Tenant's failure to meet any time deadlines specified
herein, (ii) Change Orders, (iii) Tenant's requirements for special work or
materials, finishes or installations other than Building standard, (iv) the
performance of any other work in the Premises by any person, firm or corporation
employed by or on behalf of Tenant, or any failure to complete or delay in
completion of such work, (v) Landlord's inability to obtain an occupancy permit
for the Premises because of the need for completion of all or a portion of
improvements being installed in the Premises directly by Tenant, and (vi) any
other act or omission of Tenant.
4.5 EXPANSION SPACE IMPROVEMENTS. Tenant shall have the right to
request that Landlord construct and install various improvements within the
Expansion Space (the "Expansion Space Improvements") by delivering to Landlord,
on or before May 30, 2005, a space plan for the Expansion Space Improvements in
detail reasonably acceptable to Landlord. Provided Tenant delivers such space
plan as aforesaid, Landlord shall construct and install the Expansion Space
Improvements in accordance with this SECTION 4.5.
(a) Within thirty (30) days after Landlord's receipt of the
space plan for the Expansion Space Improvements, Landlord shall prepare and
submit to Tenant (i) a set of construction drawings (the "Expansion CD's")
covering all work to be performed by Landlord in constructing the Expansion
Space Improvements to the Expansion Space in accordance with said space plan,
and (ii) a statement of the cost to construct and install the Expansion Space
Improvements (the "Expansion Cost Statement"). Tenant acknowledges and agrees
that (A) the cost to construct and install the Expansion Space Improvements
shall include design fees, (B) the
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cost to construct and install the Expansion Space Improvements shall include a
fee payable to the project's construction manager or general contractor, (C)
that such construction manager or general contractor may be a subsidiary,
affiliate or employees of Landlord, and (D) said fee shall be included in the
Expansion Cost Statement and applied against the Expansion Allowance (as
hereinafter defined). Tenant shall have five (5) days after receipt of the
Expansion CD's and the Expansion Cost Statement in which to review both the
Expansion CD's and the Expansion Cost Statement and to give Landlord written
notice of Tenant's approval of the Expansion CD's or its requested changes to
the Expansion CD's. Tenant shall have no right to request any changes to the
Expansion CD's that would materially alter the exterior appearance or basic
nature of the Building or the Building systems. If Tenant fails to approve or
request changes to the Expansion CD's within five (5) days after its receipt of
the Expansion CD's and the Expansion Cost Statement, then Tenant shall be deemed
to have approved the Expansion CD's and the Expansion Cost Statement and the
same shall thereupon be final. If Tenant requests any changes to the Expansion
CD's, Landlord shall make those changes that are reasonably requested by Tenant
and shall within ten (10) days of its receipt of such request submit the revised
portion of the Expansion CD's (and, to the extent applicable, the revised
Expansion Cost Statement) to Tenant. Tenant may not thereafter disapprove the
revised portions of the Expansion CD's unless Landlord has unreasonably failed
to incorporate reasonable comments of Tenant and, subject to the foregoing, the
Expansion CD's and the Expansion Cost Statement, as modified by said revisions,
shall be deemed to be final upon the submission of said revisions to Tenant.
Tenant shall at all times in its review of the Expansion CD's and the Expansion
Cost Statement, and of any revisions thereto, act reasonably and in good faith.
Without limiting the foregoing, Tenant agrees to confirm Tenant's consent to the
Expansion CD's and acknowledge the Expansion Cost Statement in writing within
three (3) days following Landlord's written request therefor.
(b) Tenant shall be responsible for the cost to construct
and install the Expansion Space Improvements only to the extent that the
Expansion Cost Statement, taking into account any increases or decreases
resulting from Expansion Change Orders (as hereinafter defined), exceeds $35,000
(the "Expansion Allowance"). If the Expansion Cost Statement shows that the cost
to construct and install the Expansion Space Improvements exceeds the Expansion
Cost Statement (such excess being referred to herein as the "Expansion Space
Excess Cost"), Tenant shall pay the Expansion Space Excess Cost to Landlord
within ten (10) days following Landlord's written request therefor.
Notwithstanding the foregoing, Tenant shall have the option (which option shall
be exercised, if at all, by written notice to Landlord within five (5) days
following Landlord's delivery of its request for payment) to amortize up to
$20,000 of the Expansion Space Excess Cost over the remainder of the Initial
Term on a straight-line basis at an annual rate of ten percent (10%), which
amortization payments shall commence as of the first day of the calendar month
immediately succeeding Landlord's substantial completion of the Expansion Space
Improvements and thereafter shall be paid monthly in the same manner as Base
Rent. At the request of either party, Landlord and Tenant shall enter into an
amendment to the Lease confirming the amortization set forth herein. Upon an
early termination of this Lease for any reason (including, but not limited to,
casualty or condemnation) other than for a Landlord default, Tenant shall
immediately pay to Landlord all accrued and unpaid interest due and payable on
the Expansion Space Excess Cost being amortized, together with the unamortized
portion of the Expansion Space Excess Cost. Tenant's failure to deliver the
payments required in this paragraph shall entitle Landlord to stop the
construction and installation of the Expansion Improvements until such payment
is received. In addition, all delinquent payments shall accrue interest at 15%
per annum. If the Expansion Allowance exceeds the Expansion Cost Statement
(taking into account any increases or decreases resulting from any Expansion
Change Orders), such savings shall be the property of Landlord.
(c) Landlord shall provide Tenant with a proposed schedule for the
construction and installation of the Expansion Improvements and shall notify
Tenant of any material changes to said schedule. Tenant agrees to coordinate
with Landlord regarding the installation of Tenant's phone and data wiring and
any other trade related fixtures that will need to be installed in the Expansion
Space prior to substantial completion thereof, which for purposes of this
SECTION 4.5 shall mean completion of construction of the Expansion Space
Improvements, subject only to punchlist items to be identified by Landlord and
Tenant in a joint inspection of the Expansion Space.
(d) Tenant shall have the right to request changes to the Expansion
CD's at any time by way of written change order (each, an "Expansion Change
Order", and collectively,
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"Expansion Change Orders"). Provided such Expansion Change Order is reasonably
acceptable to Landlord, Landlord shall prepare and submit promptly to Tenant a
memorandum setting forth the impact on cost and schedule resulting from said
Expansion Change Order (the " Expansion Change Order Memorandum of Agreement").
Tenant shall, within three (3) business days following Tenant's receipt of the
Expansion Change Order Memorandum of Agreement, either (i) execute and return
the Expansion Change Order Memorandum of Agreement to Landlord, in which case
the Expansion Cost Statement shall be deemed modified automatically to take into
account said Expansion Change Order, or (ii) retract its request for the
Expansion Change Order. If, after taking the Expansion Change Order into
account, the cost to construct and install the Expansion Space Improvements,
will exceed the Expansion Allowance, then, at Landlord's option, Tenant shall
pay to Landlord (or Landlord's designee), within fifteen (15) days following
Landlord's request, any increase in the cost to construct and install the
Expansion Improvements resulting from the Expansion Change Order, as set forth
in the Expansion Change Order Memorandum of Agreement. Landlord shall not be
obligated to commence any work set forth in an Expansion Change Order until such
time as Tenant has delivered to Landlord the Expansion Change Order Memorandum
of Agreement executed by Tenant and, if applicable, Tenant has paid Landlord in
full for any increase in the Expansion Cost Statement.
SECTION 5. SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES
5.1 SUBORDINATION. Provided that Tenant is provided with a
reasonable and customary subordination, nondisturbance and attornment agreement
duly executed by the holder of any Mortgage (as hereinafter defined) or the
landlord pursuant to any ground lease, this Lease shall be subject and
subordinate at all times to all ground leases or underlying leases which may now
exist or hereafter be executed affecting the Premises and/or the land upon which
the Premises and Property are situated and to any Mortgage that may now exist or
be placed upon the Property, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items, which is specified as
security. Notwithstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such ground leases or underlying
leases or any such liens to this Lease. Tenant shall execute and deliver, upon
demand by Landlord and in the form reasonably requested by Landlord, any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or any Mortgage. For
purposes of this Lease, "Mortgage" shall mean any or all mortgages, deeds to
secure debt, deeds of trust or other instruments in the nature thereof, and any
amendments, modifications, extensions or renewals thereof.
5.2 ESTOPPEL CERTIFICATES. Tenant agrees, from time to time and
within ten (10) business days after request by Landlord, to deliver to Landlord,
or Landlord's designee, an estoppel certificate stating such matters pertaining
to this Lease as may be reasonably requested by Landlord, including, without
limitation, a certification from Tenant (a) that this Lease is in full force and
effect and unmodified or stating the nature of any modification, (b) the date to
which Base Rent and Additional Rent has been paid, and (iii) that there are not,
to Tenant's knowledge, any uncured defaults or specifying such defaults if any
are claimed. Failure by Tenant to timely execute and deliver such certificate
shall constitute an acceptance of the Premises and acknowledgment by Tenant that
the statements included therein are true and correct without exception. Landlord
and Tenant intend that any statement delivered pursuant to this SECTION may be
relied upon by any prospective purchaser or mortgagee of the Property or of any
interest therein or any other Landlord designee.
SECTION 6. QUIET ENJOYMENT
6.1 POSSESSION. Subject to the provisions of this Lease, so long as
Tenant pays all of the Rent and performs all of its other obligations hereunder,
Tenant shall not be disturbed in its possession of the Premises by Landlord,
Agent or any other person lawfully claiming through or under Landlord. This
covenant shall be construed as a covenant running with the Property and is not a
personal covenant of Landlord.
6.2 APPLICABLE LAW.
(a) EXISTING LAWS. If any federal, state or local laws,
ordinances, orders, rules, regulations or requirements and all judicial and
administrative decisions relating thereto, or
12
any covenants encumbering the Property (collectively, "Laws") in existence as of
the date of the Lease require an alteration or modification of the Building or
Common Areas (a "Code Modification") and such Code Modification (i) is not made
necessary as a result of the specific use being made by Tenant of the Premises
(as distinguished from an alteration or improvement which would be required to
be made by the owner of any warehouse-office building comparable to the Building
irrespective of the use thereof by any particular occupant), and (ii) is not
made necessary as a result of any alteration of the Premises by Tenant, such
Code Modification shall be performed by Landlord, at Landlord's sole cost and
expense, and not included in CAM Charges.
(b) LAWS - LANDLORD RESPONSIBILITY. If, as a result of one
or more Laws that are not in existence as of the date of this Lease, it is
necessary from time to time during the Lease Term, to perform a Code
Modification to the Building or the Common Areas that (i) is not made necessary
as a result of the specific use being made by Tenant of the Premises (as
distinguished from an alteration or improvement which would be required to be
made by the owner of any warehouse-office building comparable to the Building
irrespective of the use thereof by any particular occupant), and (ii) is not
made necessary as a result of any alteration of the Premises by Tenant, such
Code Modification shall be performed by Landlord and cost thereof shall be
included in CAM Charges without being subject to any applicable cap on expenses
set forth herein.
(c) LAWS - TENANT RESPONSIBILITY. If, as a result of one or
more Laws, it is necessary from time to time during the Lease Term to perform a
Code Modification to the Building or the Common Areas that is made necessary as
a result of the specific use being made by Tenant of the Premises or as a result
of any alteration of the Premises by Tenant, such Code Modification shall be the
sole and exclusive responsibility of Tenant in all respects; provided, however,
that Tenant shall have the right to retract its request to perform a proposed
alteration in the event that the performance of such alteration would trigger
the requirement for a Code Modification.
6.3 BUILDING COMPLIANCE. Without limiting SECTION 6.2 above,
Landlord represents and warrants to Tenant that, to Landlord's actual knowledge,
the design and construction of the Building materially complies with all Laws in
effect as of the date of the Lease, excepting therefrom any requirements related
to Tenant's specific use of the Premises.
6.4 ADA COMPLIANCE. Landlord, at its sole cost and expense, shall be
responsible for causing the Building to comply with Title III of the American
with Disabilities Act of 1990 (the "Disabilities Act"), or the regulations
promulgated thereunder (as the Disabilities Act is in effect and pertains to the
general public), as of the date of the Lease. During the Lease Term, Tenant
shall be responsible, at its sole cost and expense, for causing the Building,
the Common Areas and the Premises to comply with the Disabilities Act as a
result of (a) any special requirements of the Disabilities Act relating to
accommodations for individual employees, invitees and/or guests of Tenant, and
(b) any alterations made to the Premises by Tenant.
SECTION 7. ASSIGNMENT, SUBLETTING AND MORTGAGING
7.1 PROHIBITION. Tenant acknowledges that this Lease and the Rent
due under this Lease have been agreed to by Landlord in reliance upon Tenant's
reputation and creditworthiness and upon the continued operation of the Premises
by Tenant for the particular use set forth in SECTION 3 above; therefore, Tenant
shall not, whether voluntarily, or by operation of law, or otherwise: (a) assign
or otherwise transfer this Lease in whole or in part: (b) sublet the Premises or
any part thereof, or allow the same to be used or occupied by anyone other than
Tenant; or (c) mortgage, pledge, encumber, or otherwise hypothecate this Lease
or the Premises, or any part thereof, in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord, which consent may be
given or withheld in Landlord's reasonable discretion, other than the assignment
by Tenant to a Permitted Transferee, as described in SECTION 7.3 below. By way
of example and not limitation, Landlord shall be deemed to have reasonably
withheld consent to a proposed assignment or sublease if in Landlord's opinion
(i) the purposes for which the proposed transferee intends to use the Premises
are not in keeping with the standards of Landlord for the Building and may have
a material adverse affect on the existing structural or physical condition of
the Premises; (ii) the proposed assignee or subtenant has an Unacceptable
Business Reputation (as hereinafter defined); (iii) the financial worth of the
13
proposed assignee or subtenant is insufficient to meet the obligations
hereunder, or (iv) the prospective assignee or subtenant is (A) a current tenant
at the park in which the Building is located or (B) a bona-fide third-party
prospective tenant who Landlord has received a proposal from or submitted a
proposal to within ninety (90) days prior to the date of Tenant's request to
assign or sublet. For purposes of this Lease, Unacceptable Business Reputation
shall mean any of the following: (x) the conduct of a business that violates
accepted social mores or otherwise suggests moral turpitude, whether because of
the name or inherent nature of the underlying business, or (y) a business whose
equity owners, officers or principal employees have committed serious criminal
or unlawful acts, or have been subject to media publicity regarding criminal
investigations, workplace violations or other unlawful acts or behavior that
could be reasonably expected to draw negative attention to the Premises, or (z)
Landlord has had prior business dealings with the proposed assignee or
sublessee, during which such proposed assignee or sublessee acted in a
disreputable manner. Any purported assignment, mortgage, transfer, pledge or
sublease made without the prior written consent of Landlord (other than to a
Permitted Transferee) shall be absolutely null and void. No assignment of this
Lease shall be effective and valid unless and until the assignee executes and
delivers to Landlord any and all documentation reasonably required by Landlord
in order to evidence assignee's assumption of all obligations of Tenant
hereunder. Any consent by Landlord to a particular assignment, sublease or
mortgage shall not constitute consent or approval of any subsequent assignment,
sublease or mortgage, and Landlord's written approval shall be required in all
such instances. Any consent by Landlord to any assignment or sublease shall not
be deemed to release Tenant from its obligations hereunder and Tenant shall
remain fully liable for performance of all obligations under this Lease. Subject
to SECTION 7.3 below, any change in control of Tenant resulting from a merger,
consolidation, stock transfer or asset sale shall be considered an assignment or
transfer that requires Landlord's prior written consent.
7.2 RIGHTS OF LANDLORD. If this Lease is assigned, or if the
Premises (or any part thereof) are sublet or used or occupied by anyone other
than Tenant, whether or not in violation of this Lease, Landlord or Agent may
(without prejudice to, or waiver of its rights), collect Rent from the assignee,
subtenant or occupant. Landlord or Agent may apply the net amount collected to
the Rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this SECTION 7.
If Landlord refuses to give its consent to any proposed assignment or
subletting, and within five (5) business days after written notice of such
refusal to Tenant, Tenant fails to retract its request, Landlord may, at its
option, within thirty (30) days after receiving a request to consent, terminate
this Lease by giving Tenant thirty (30) days prior written notice of such
termination, whereupon each party shall be released from all further obligations
and liability hereunder, except those which expressly survive the termination of
this Lease. In the event that Tenant assigns or sublets the Premises or any part
thereof, and at any time receives rent and/or other consideration which exceeds
that which Tenant would at that time be obligated to pay to Landlord, Tenant
shall pay to Landlord, as Additional Rent, 50% of such excess rent and/or other
consideration. Tenant agrees to pay Landlord $500.00 upon demand by Landlord to
reimburse Landlord for reasonable accounting and attorneys' fees incurred in
conjunction with the processing and documentation of any requested assignment,
subletting or any other hypothecation of this Lease or Tenant's interest in and
to the Premises.
7.3 PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained in SECTION 7.1 above, Tenant shall have the right, without Landlord's
consent, but upon ten (10) days prior notice to Landlord, to (a) sublet all or
part of the Premises to any related corporation or other entity which controls
Tenant, is controlled by Tenant or is under common control with Tenant; or (b)
assign all or any part of this Lease to any related corporation or other entity
which controls Tenant, is controlled by Tenant, or is under common control with
Tenant, or to a successor entity into which or with which Tenant is merged or
consolidated or which acquires substantially all of Tenant's assets in property,
provided that in the event of a transfer pursuant to clause (b), the tangible
net worth after any such transaction is not less than the tangible net worth of
Tenant as of the date hereof and provided further that such successor entity
assumes all of the obligations and liabilities of Tenant (any such entity
hereinafter referred to as a "Permitted Transferee"). For the purpose hereof (i)
"control" shall mean ownership of not less than fifty percent (50%) of all
voting stock or legal and equitable interest in such corporation or entity, and
(ii) "tangible net worth" shall mean the excess of the value of tangible assets
(i.e. assets excluding those which are intangible such as goodwill, patents and
trademarks) over liabilities. Any such transfer shall not relieve Tenant of its
obligations under this Lease.
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SECTION 8. COMPLIANCE WITH LAWS
8.1 COMPLIANCE WITH LAWS. Except to the extent such are Landlord's
responsibility under SECTIONS 6 above or 8.3 below, Tenant shall, at its sole
expense, comply with all Laws pertaining to the Premises or Tenant's use
thereof, including, without limitation, any restrictions of record affecting the
Property, any and all Environmental Laws, which for purposes hereof shall mean
and refer to all laws pertaining to Hazardous Materials (as hereinafter defined)
or which otherwise deal with or relate to air or water quality, air emissions,
soil or ground conditions or other environmental and ecological matters of any
kind, whether or not any of the foregoing were in effect at the time of the
execution of this Lease. If any license or permit is required for the conduct of
Tenant's business in the Premises (other than a certificate of occupancy which
shall be obtained by Landlord), Tenant, at its expense, shall procure such
license prior to the Commencement Date, and shall maintain in good standing such
license or permit. Tenant shall give prompt notice to Landlord of any written
notice it receives of the alleged violation of any Laws or requirement of any
governmental or administrative authority with respect to the Premises or the use
or occupation thereof. The judgment of any court of competent jurisdiction, or
the admission of Tenant in any action or proceeding against Tenant, whether
Landlord is a party thereto or not, that any such Laws pertaining to the
Premises have been violated, shall be conclusive of that fact as between
Landlord and Tenant.
8.2 HAZARDOUS MATERIALS. As used herein, the term "Hazardous
Materials" shall mean any waste, material or substance (whether in the form of
liquids, solids or gases, and whether or not air-borne) which is or may be
deemed to be or include a pesticide; petroleum, asbestos, polychlorinated
biphenyl, radioactive material, urea formaldehyde or any other pollutant or
contaminant which is or may be deemed to be hazardous, toxic, ignitable,
reactive, corrosive, dangerous, harmful or injurious, or which presents a risk
to public health or to the environment, and which is or becomes regulated by any
Environmental Law.
8.3 LANDLORD COMPLIANCE. In connection with the operation of the
Premises, Landlord represents and warrants that to the extent not the obligation
of Tenant, any other tenant or occupant of the Building or any other person or
entity, Landlord shall comply in all material respects with all Laws pertaining
to the construction of the Premises, including, without limitation, any
restrictions of record affecting the Property, including any and all Laws
pertaining to Hazardous Materials, or all Environmental Laws applicable to the
Premises.
8.4 RESTRICTIONS ON TENANT. Except for small quantities used or
stored in compliance with all applicable Environmental Laws in the ordinary
course of Tenant's conduct of its business at the Premises for the Permitted
Use, Tenant shall not cause or permit the use, generation, release, manufacture,
refining, production, processing, storage or disposal of any Hazardous Materials
on, under or about the Premises, or the transportation to or from the Premises
of any Hazardous Materials without the prior written consent of Landlord, and
then the use, storage or disposal of such Hazardous Materials shall be performed
in compliance with the Environmental Laws and the highest standards prevailing
in the industry. Tenant shall immediately notify Landlord of (a) any violation
by Tenant, its employees, agents, representatives, customers, invitees or
contractors of the Environmental Laws on, under or about the Premises, or (b)
the presence or suspected presence of any Hazardous Materials on, under or about
the Premises and shall immediately deliver to Landlord any notice received by
Tenant relating to (a) and (b) above from any source. Tenant shall execute
affidavits, representations and the like within five (5) days of Landlord's
request therefor concerning Tenant's best knowledge and belief regarding the
presence of any Hazardous Materials on, under or about the Premises.
8.5 LANDLORD'S RIGHTS. Landlord and its agents shall have the right,
but not the duty, at Landlord's sole expense (except as otherwise set forth in
SECTION 16.2 below), upon advance notice (except in the case of emergency when
no notice shall be required) to inspect the Premises and conduct tests thereon
to determine whether or the extent to which there has been a violation of
Environmental Laws by Tenant or whether there are Hazardous Materials on, under
or about the Premises. In exercising its rights herein, Landlord shall use
reasonable efforts to minimize interference with Tenant's business but such
entry shall not constitute an eviction of Tenant, in whole or in part, and
Landlord shall not be liable for any interference, loss, or damage to Tenant's
property or business caused thereby.
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8.6. LANDLORD'S REPRESENTATION AND INDEMNITY. Notwithstanding
anything contained in this Lease to the contrary, Tenant shall not have any
liability to Landlord under this Lease resulting from any Hazardous Materials
existing or generated at, in, on, under or in connection with the Premises prior
to the date hereof except to the extent Tenant exacerbates the same. Landlord
hereby agrees to indemnify Tenant and hold Tenant harmless from and against any
and all reasonable and actual expense, loss and liability suffered by Tenant
(with the exception of any and all punitive or consequential damages) by reason
of Hazardous Materials located upon or within the Premises prior to the date of
this Lease. Notwithstanding the foregoing, Landlord shall have the right to
undertake and perform any studying, remedying, removing, disposing or otherwise
addressing the existence of any Hazardous Materials that are the responsibility
of Landlord hereunder and of all communications with regulatory or governmental
agencies with respect thereto, and Tenant shall not perform such acts and
communications nor be entitled to any indemnification hereunder unless (a)
Tenant is specifically required by Environmental Laws to perform such acts, and
(b) Landlord has failed or refused to perform such acts and communications after
having been afforded reasonable written notice by Tenant and having had
reasonable opportunity to perform such acts and communications.
SECTION 9. INSURANCE
9.1 TENANT INSURANCE. Tenant shall purchase at its own expense and
keep in force during this Lease a policy or policies of (a) Special Form
Insurance (which insurance shall not exclude flood and earthquake) in the amount
of the full replacement cost of Tenant's trade fixtures, merchandise, inventory,
personal property, and Tenant's improvements (other than those improvements, if
any, made pursuant to SECTION 4 above) and betterments, which insurance shall
include an agreed amount endorsement waiving coinsurance; (b) Commercial General
Liability Insurance (which insurance shall not exclude blanket, contractual
liability, broad form property damage, personal injury, and fire damage)
covering the Premises and Tenant's use thereof against claims for bodily injury
or death and property damage, which insurance shall provide coverage on an
occurrence basis with a combined single limit of not less than $3,000,000 per
occurrence, which limit may be satisfied by any combination of primary and
excess or umbrella per occurrence policies; provided, however, aggregate amounts
may not be used to satisfy such limit; (c) Worker's Compensation insurance in
amounts required by applicable law; and (d) Business Income Insurance covering
rental income of two (2) years. Said policies shall (i) name Landlord, Agent,
and any party holding an interest to which this Lease may be subordinated as
additional insureds (except that such requirement shall not be applicable to the
worker's compensation insurance required to be maintained by Tenant), (ii) be
issued by an insurance company with a Best rating of A X or better and otherwise
reasonably acceptable to Landlord and licensed to do business in the state in
which the Property is located, (iii) provide that said insurance shall not be
materially changed or canceled unless thirty (30) days' prior written notice
shall have been given to Landlord, (iv) provide coverage on an occurrence basis;
(v) provide coverage for the indemnity obligations of Tenant under this lease;
(vi) contain a severability of insured parties provision and across liability
endorsement; (vii) be primary, not contributing with, and not in excess of
coverage which Landlord may carry; (viii) include a hostile fire endorsement;
and (ix) otherwise be in such form and include such coverages as Landlord may
reasonably require. Said policy or policies or, at Landlord's option,
Certificate of Insurance on the so-called "XXXXX" form 27 evidencing said
policies, shall be delivered to Landlord by Tenant upon commencement of, the
Lease and renewals thereof shall be delivered at least thirty (30) days prior to
the expiration of said insurance. If Tenant fails to carry such insurance and
furnish Landlord with such certificates of insurance, Landlord may obtain such
insurance on Tenant's behalf and Tenant shall promptly reimburse Landlord
therefor.
9.2 WAIVER OF SUBROGATION. Notwithstanding anything to the contrary
contained in this Lease, to the extent permitted by law, and without affecting
the coverage provided by insurance required to be maintained hereunder, Landlord
and Tenant each waive any right each may have against the other on account of
any loss of or damage to their respective property, the Premises, its contents,
or other portions of the Building arising from any risk which is insured against
or required to be insured against by Landlord or Tenant under this Lease. In
addition, Landlord and Tenant hereby waive any rights each may have against the
other on account of any loss, injury, or damage to an employee of the other
arising out of such employee's employment relationship. This provision is
intended to waive, fully and for the benefit of each party, any rights and/or
claims that might give rise to a right of subrogation by any insurance carrier.
The
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coverage obtained by each party pursuant to this Lease shall include, without
limitation, a waiver of subrogation by the carrier that conforms to the
provisions of this SECTION.
SECTION 10. ALTERATIONS
10.1 PROCEDURAL REQUIREMENTS. Tenant may, from time to time, at its
expense, make alterations or improvements in and to the Premises (hereinafter
collectively referred to as "Alterations"), provided that Tenant first obtains
the written consent of Landlord in each instance. Notwithstanding the foregoing,
Landlord's consent to non-structural Alterations shall not be required, provided
that: (a) the Alterations are non-structural and the structural integrity of the
Property shall not he affected; (b) the proper functioning of the mechanical,
electrical, heating, ventilating, air conditioning ("HVAC"), sanitary and other
service systems of the Property shall not be adversely affected; (c) the
Alterations are not reasonably likely to have a material adverse effect on the
Property; (d) Tenant shall have appropriate insurance coverage, reasonably
satisfactory to Landlord, regarding the performance and installation of the
Alterations; (e) the Alterations shall conform with all other requirements of
this Lease; (f) Tenant provides Landlord with prior written notice of its
intention to make such Alterations stating in reasonable detail the nature,
extent and estimated cost of such Alterations, and to the extent customary to
the proposed Alteration, a set of reasonably detailed plans for the Alteration;
and (g) such Alterations do not exceed Fifty Thousand Dollars ($50,000.00) in
cost in any one instance and Two Hundred Fifty Thousand Dollars ($250,000.00) in
cost in the aggregate during the Lease Term. If applicable, Tenant shall not
permit alterations in or to the Premises unless and until Landlord has approved
the plans and the contractor in writing. As a condition of Landlord's approval,
Landlord may require Tenant to remove the Alterations and restore the Premises
upon termination of this Lease; otherwise, all such Alterations shall at
Landlord's option become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. After obtaining Landlord's consent to the
structural Alterations, Tenant shall give Landlord at least five (5) days' prior
written notice of the commencement of any Alterations at the Premises, and
Landlord may elect to record and post notices of commencement of construction,
non-responsibility or the like, at the Premises.
10.2 PERFORMANCE OF ALTERATIONS. Tenant shall cause the Alterations
to be performed in compliance with all applicable permits, laws and requirements
of public authorities, restrictions of record affecting the Property and with
Landlord's reasonable rules and regulations or any other restrictions that
Landlord or Agent may impose on the Alterations. Tenant shall cause the
Alterations to be diligently performed in a good and workmanlike manner, using
new materials and equipment at least equal in quality and class to the standards
for the Property established by Landlord or Agent. Tenant shall obtain all
necessary permits and certificates for final governmental approval of the
Alterations and, where applicable, shall provide Landlord with "as built" plans,
copies of all construction contracts, governmental permits and certificates and
proof of payment for all labor and materials, including, without limitation,
copies of paid invoices and final lien waivers.
10.3 LIEN PROHIBITION. Upon completion of the work, Tenant shall
provide lien waivers from the subcontractors or a final affidavit of lien waiver
from the general contractor, and such lien waiver shall be in a form acceptable
to Landlord. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Premises, and nothing in this
Lease shall be construed to constitute a consent by Landlord to the creation of
any lien. Tenant shall pay when due all claims for labor and material furnished
to the Premises in connection with the Alterations. Tenant shall not permit any
mechanics or materialmen's liens to attach to the Premises, the Property, or
Tenant's leasehold estate. Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and encumbrances within
thirty (30) days after the filing thereof; or, if acceptable to Landlord, in
its' reasonable determination, Tenant may procure (for Landlord's benefit), a
bond or other protection against any such lien or encumbrance. In the event
Tenant has not so performed, Landlord may, at its option, pay and discharge such
liens and Tenant shall be responsible to reimburse Landlord, on demand and as
Additional Rent under this Lease, for all costs and expenses incurred in
connection therewith, together with interest thereon at the rate set forth in
SECTION 21.3 below, which expenses shall include reasonable fees of attorneys of
Landlord's choosing, and any costs in posting bond to effect discharge or
release of the lien as an encumbrance against the Premises or the Property.
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SECTION 11. LANDLORD'S AND TENANT'S PROPERTY
11.1 LANDLORD'S PROPERTY. Subject to SECTIONS 11.2 and 19.1 below,
and except as otherwise expressly set forth in this Lease, the Tenant
Improvements and Expansion Space Improvements and all fixtures, improvements and
appurtenances attached to, or built into, the Premises at the commencement of,
or during the Term, whether or not placed there by or at the expense of Tenant,
shall become and remain a part of the Premises; shall be deemed the property of
Landlord (the "Landlord's Property"), without compensation or credit to Tenant,
and shall not be removed by Tenant at the Expiration Date unless Landlord
requests their removal. Further, any personal property in the Premises on the
Commencement Date, movable or otherwise, unless installed and paid for by
Tenant, shall be and shall remain the property of Landlord and shall not be
removed by Tenant. In no event shall Tenant remove any of the following
materials or equipment without Landlord's prior written consent; any power
wiring or power panels, lighting or lighting fixtures, wall or window coverings,
carpets or other floor coverings, heaters, air conditioners or any other HVAC
equipment, fencing or security gates, or other similar building operating
equipment and decorations.
11.2 TENANT'S PROPERTY. All movable non-structural partitions,
business and trade fixtures (including, but not limited to, the racking and
sorting equipment installed by Tenant, machinery and equipment, communications
equipment and office equipment, that are installed in the Premises by, or for
the account of, Tenant without expense to Landlord and that can be removed
without structural damage to the Property) and all furniture, furnishings and
other articles of movable Personal property owned by Tenant and located in the
Premises (collectively, the "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term,
provided Tenant repairs or pays the cost of repairing any damage to the Premises
or to the Property resulting from the installation and/or removal thereof. At or
before the Expiration Date, or promptly after any earlier termination, Tenant,
at its expense, shall remove from the Premises all of Tenant's Property (except
such items thereof as Landlord shall have expressly permitted, in writing, to
remain, which property shall become the property of Landlord), and Tenant shall
repair any damage to the Premises or the Property resulting from any
installation and/or removal of Tenant's Property.
SECTION 12. REPAIRS AND MAINTENANCE.
12.1 TENANT REPAIRS AND MAINTENANCE. Tenant shall, at its expense,
maintain in good condition, regularly servicing and promptly making all repairs
and replacements thereto, the Premises, including but not limited to the
electrical systems, heating and air conditioning systems, plate glass, floors,
windows and doors (with the exception of dock doors), and sprinkler and plumbing
systems. In addition, Tenant shall obtain a preventive maintenance contract on
the heating, ventilating and air-conditioning systems (and provide Landlord with
a copy thereof), which contract shall meet or exceed Landlord's standard
maintenance criteria and shall provide for the inspection and maintenance of the
heating, ventilating and air conditioning system on not less than a semi-annual
basis. Notwithstanding the foregoing, and subject to Tenant's waiver in SECTION
9.2 of the Lease or any other provision of this Lease, Tenant shall not be
responsible for repairs or replacements to the Premises to the extent
necessitated by the willful misconduct or negligent acts of Landlord or its
agents, independent contractors, vendors, suppliers, or employees, in which case
such repair or replacement shall be performed by Landlord at its expense. Tenant
shall also be responsible for all cost and expenses incurred to perform any and
all repairs and replacements (whether structural or non-structural; interior or
exterior; and ordinary or extraordinary), in and to the Premises and the
Property and the facilities and systems thereof, if and to the extent that the
need for such repairs or replacements arises directly or indirectly from (i) the
performance or existence of any Alterations, (ii) the installation, use or
operation of Tenant's Property in the Premises, (iii) the moving of Tenant's
Property in or out of the Property, or (iv) any act, omission, misuse, or
neglect of Tenant, any of its subtenants, or others entering into the Premises
by act or omission of Tenant or any subtenant. Any repairs or replacements
required to be made by Tenant to any or all of the structural components of the
Property and the mechanical, electrical, sanitary, HVAC, or other systems of the
Property or Premises shall be performed by appropriately licensed contractors
and Tenant shall notify Landlord, in writing, and identifying the selected
contractor(s), prior to the commencement of any such repairs or replacements.
All such repairs or replacements shall be made with materials of equal or better
quality than the items being repaired or replaced.
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12.2 LANDLORD REPAIRS. During the Lease Term, Landlord shall maintain
in good condition and repair, and replace as necessary, the roof, exterior walls
(including, without limitation, all dock doors), foundation and structural frame
of the Building and the parking and landscaped areas, the costs of which shall
be included in CAM Charges; provided, however, that to the extent any of the
foregoing items require repair because of the negligence, misuse, or default of
Tenant, its employees, agents, customers, contractors or invitees, Landlord
shall make such repairs solely at Tenant's expense. Landlord agrees to commence
the repairs, replacements or restoration described in this SECTION 12.2 promptly
following Landlord becoming aware of such repair or replacement or promptly
following the receipt of written notice from Tenant stating the need for such
repairs.
SECTION 13. UTILITIES.
Tenant shall purchase all utility services directly from the utility or
municipality providing such service; provided, however, if any utility services
are jointly metered with other property, Landlord shall make a reasonable
determination of Tenant's proportionate share of the cost of such utilities and
services (at rates that would have been payable if such utilities had been
directly billed by the utilities or service providers) and Tenant shall pay such
share to Landlord within fifteen (15) days after receipt of Landlord's written
statement. In addition, Tenant shall provide for scavenger, cleaning and
extermination services; and shall pay for such services when payments are due.
Tenant shall be solely responsible for the repair and maintenance of any meters
necessary in connection with such services. Tenant's use of electrical energy in
the Premises shall not, at any time, exceed the capacity of either or both of
(a) any of the electrical conductors and equipment in or otherwise servicing the
Premises; and (b) the Property's HVAC systems.
SECTION 14. INVOLUNTARY CESSATION OF SERVICES
14.1 CESSATION OF SERVICES. Landlord reserves the right, without any
liability to Tenant and without affecting Tenant's covenants and obligations
hereunder, upon reasonable prior notice (except where emergency circumstances
exist, in which event no notice shall be required) to stop service of the HVAC,
electric, sanitary, elevator (if any), or other systems serving the Premises, or
to stop any other services required by Landlord under this Lease, whenever and
for a reasonable time necessary by reason of (a) accidents, emergencies,
strikes, or the making of repairs or changes which Landlord or Agent in good
xxxxx xxxxx necessary, or (b) any other cause beyond Landlord's reasonable
control. Further, it is also understood and agreed that Landlord or Agent shall
have no liability or responsibility for a cessation of services to the Premises
or to the Property that occurs as a result of causes beyond Landlord's or
Agent's reasonable control. No such interruption of service shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord or Agent liable to Tenant for damages, or
relieve Tenant from performance of Tenant's obligations under this Lease,
including, but not limited to, the obligation to pay Rent.
14.2 RENT ABATEMENT. Notwithstanding SECTION 14.1 above, to the
extent that (a) such interruption of service is within Landlord's or Agent's
reasonable control, and (b) such interruption of service renders the Premises or
any portion of the Premises untenantable for a period of five (5) consecutive
business days after Landlord receives written notice from Tenant of such
interruption of service, Base Rent and Tenant's Proportionate Share of CAM
Charges shall xxxxx with respect to the area which is affected for each such
consecutive day after said five (5) business day period that such area of the
Premises is so rendered until such service is restored (the "Abatement"). The
Abatement shall equal the Base Rent and Tenant's Proportionate Share of CAM
Charges due for the period of the interruption with respect to the square
footage affected. In addition, Tenant shall receive a credit for the Base Rent
and Tenant's Proportionate Share of CAM Charges paid by Tenant prior to said
fifth (5th) business day, but after the second (2nd) business day of
interruption with respect to the square footage affected. Provided, however, to
the extent that such interruption is caused or continues as a result of (i)
Force Majeure, (ii) the negligence or willful misconduct of Tenant, its agents,
employees, contractors, subtenants, invitees or assignees, or (iii) any other
cause outside Landlord's or Agent's reasonable control, Tenant shall not be
entitled to any abatement hereunder. The Premises shall be considered
untenantable if Tenant does not use the Premises or portion thereof affected in
the conduct of its normal business operations as a result of said interruption
of service to the Premises. It is agreed and understood that Tenant shall not
use nor be entitled to use the Premises or portion thereof affected to conduct
its normal business operations
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during any day for which Landlord is obligated to xxxxx rent hereunder. The
abatement herein provided shall be Tenant's sole and exclusive remedy for
interruption of service. Landlord agrees to use its reasonable efforts to
restore such utility service as soon as possible.
SECTION 15. LANDLORD'S RIGHTS.
Landlord, Agent and their respective agents, employees and
representatives shall have the right to enter and/or pass through the Premises
at any time or times upon reasonable prior notice (except in the event of
emergency, in which event no notice shall be required) (a) to examine and
inspect the Premises and to show them to actual and prospective lenders,
prospective purchasers or mortgagees of the Property or providers of capital to
Landlord and its affiliates; and (b) to make such repairs, alterations,
additions and improvements in or to the Premises and/or in or to the Property or
its facilities and equipment as Landlord is required or desires to make.
Landlord and Agent shall be allowed to take all materials into and upon the
Premises that may be required in connection with any repairs, alterations,
additions or improvements, without any liability to Tenant and without any
reduction or modification of Tenant's covenants and obligations hereunder;
provided, however, that Landlord shall use reasonable efforts to avoid
interference with Tenant's business operations and Tenant's occupancy and use of
the Premises. Additionally, Landlord and Agent shall have the following rights
exercisable on reasonable notice to Tenant (except in, the event of emergency in
which event no notice shall be required), without liability to Tenant, and
without being deemed an eviction or disturbance of Tenant's use or possession of
the Premises or giving rise to any claim for setoff or abatement of Rent: (i) to
have pass keys, access cards, or both, to the Premises; and (ii) to decorate,
remodel, repair, alter or otherwise prepare the Premises for re-occupancy at any
time after Tenant vacates or abandons the Premises for more than thirty (30)
consecutive days or with, no intention of reoccupying the Premises. During the
period of six (6) months prior to the Expiration Date (or at any time, if Tenant
has vacated or abandoned the Premises or is otherwise in default under this
Lease), Landlord and its agents may exhibit the Premises to prospective tenants
and erect a "For Lease" sign thereon.
SECTION 16. NON-LIABILITY AND INDEMNIFICATION
16.1 NON-LIABILITY. Except to the extent of Landlord's negligence or
willful misconduct not otherwise waived pursuant to SECTION 9.2 above or any
other provision of this Lease, none of Landlord, Agent, any other managing
Agent, or their respective affiliates, owners, partners, directors, officers,
agents and employees shall be liable to Tenant for any loss, injury, or damage,
to Tenant or to any other person, or to its or their property, irrespective of
the cause of such injury, damage or loss. Further, except to the extent of
Landlord's negligence or willful misconduct not otherwise waived pursuant to
SECTION 9.2 above or any other provision of this Lease, none of Landlord, Agent,
any other managing agent, or their respective partners, directors, officers,
agents and employees shall be liable (a) for any damage caused by other tenants
or persons in, upon or about the Property, or caused by operations in
construction of any public or quasi-public work; (b) with respect to matters for
which Landlord is liable, for consequential or indirect damages purportedly
arising out of any loss of use of the Premises or any equipment or facilities
therein by Tenant or any person claiming through or under Tenant; (c) any latent
defect in the Premises or the Property; (d) injury or damage to person or
property caused by fire, or theft, or resulting from the operation of heating or
air conditioning or lighting apparatus, or from falling plaster, or from steam,
gas, electricity, water, rain, snow, ice; or dampness, that may leak or flow
from any part of the Property, or from the pipes, appliances or plumbing work of
the same. Notwithstanding the foregoing, nothing contained in this SECTION 16.1
shall override (or be deemed to override) the waivers contained in SECTION 9.2
above.
16.2 INDEMNIFICATION.
(a) TENANT INDEMNIFICATION. Tenant hereby indemnifies,
defends, and holds Landlord, Agent and their respective affiliates, owners,
partners, directors, officers, agents and employees (collectively, "Landlord
Indemnified Parties") harmless from and against any and all Landlord Losses
(defined below) to the extent arising from or in connection with (i) the
Premises or any business therein, or any work, Tenant Improvements, or
Alterations done, or any condition created (other than by Landlord) in or about
the Premises during the Term or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Premises; (ii)
any act, omission or negligence of Tenant or Tenant's agents,
20
employees, contractors, customers or invitees (collectively, the "Tenant's
Parties"); (iii) any accident, injury or damage whatsoever (unless caused by
Landlord's negligence) occurring in, at or upon either or both the Property and
the Premises; (iv) any breach by Tenant of any of its warranties,
representations or covenants under this Lease; (v) any actions necessary to
protect Landlord's interest under this Lease in a bankruptcy proceeding or other
proceeding under the Bankruptcy Code and relating to Tenant; (vi) any violation
or alleged violation by Tenant of any Laws, including, without limitation, any
Environmental Laws; (vii) any breach of the provisions of Article 8 by Tenant or
any of Tenant's Parties; (viii) any generation, transport, storage, use,
treatment, or disposal on, about or from the Premises or the Property of any
Hazardous Materials by Tenant or any of Tenant's Parties; (ix) claims for work
or labor performed or materials supplies furnished to or at the request of
Tenant; and (x) claims arising from any breach or default on the part of Tenant
in the performance of any covenant contained in this Lease (collectively,
"Tenant's Indemnified Matters"). In case any action or proceeding is brought
against any or all of Landlord and the Landlord Indemnified Parties by reason of
any of Tenant's Indemnified Matters, Tenant, upon notice from any or all of
Landlord, Agent or any Superior Party (defined below), shall resist and defend
such action or proceeding by counsel reasonably satisfactory to, or selected by,
Landlord. The term "Landlord Losses" shall mean all claims, demands, expenses,
actions, judgments, damages, penalties, fines, liabilities, losses of every kind
and nature (including, without limitation, property damage, diminution in value
of Landlord's interest in the Premises or the Property, damages for the loss or
restriction on use of any space or amenity within the Premises or the Property,
damages arising from any adverse impact on marketing space in the Property, sums
paid ill settlement of claims and any costs and expenses associated with injury,
illness or death to or of any person), suits, administrative proceedings, costs
and fees, including, without limitation, reasonable attorneys' fees actually
incurred without regard to statutory interpretation and consultants' fees and
expenses, and the costs of cleanup, remediation, removal and restoration, that
are in any way related to any matter covered by the foregoing indemnity.
Notwithstanding the foregoing, nothing contained in this SECTION 16.2(A) shall
override (or be deemed to override) the waivers contained in SECTION 9.2 above.
The provisions of this SECTION 16.2(A) shall survive the expiration or
termination of this Lease.
(b) LANDLORD INDEMNIFICATION. Landlord hereby indemnifies,
defends and holds Tenant harmless from and against any and all Tenant's Losses
(defined below) actually incurred by Tenant and resulting from the negligence or
willful misconduct of Landlord, Agent, and its and their contractors and
employees. In the event that any action or proceeding is brought against Tenant,
and the foregoing indemnity is applicable to such action or proceeding, then
Landlord, upon notice from Tenant, shall resist and defend such action or
proceeding by counsel reasonably satisfactory to Tenant. Notwithstanding
anything to the contrary set forth in this Lease, however, in all events and
under all circumstances, the liability of Landlord to Tenant shall be limited to
the interest of Landlord in the Property, and Tenant agrees to look solely to
Landlord's interest in the Property for the recovery of any judgment or award
against Landlord, it being intended that Landlord shall not be personally liable
for any judgment or deficiency. The term "Tenant Losses" shall mean all claims,
demands, expenses, actions, judgments, damages, penalties, fines, liabilities,
losses of every kind and nature (including, without limitation, sums paid in
settlement of claims and any costs and expenses associated with injury, illness
or death to or of any person), suits, administrative proceedings, costs and
fees, including, without limitation, reasonable attorneys' fees and expenses
actually incurred without regard to statutory interpretation and consultants'
fees and expenses, and the costs that are in any way related to any matter
covered by the foregoing indemnity. Notwithstanding the foregoing, nothing
contained in this SECTION 16.2(B) shall override (or be deemed to override) the
waivers contained in SECTION 9.2 above. The provisions of this SECTION 16.2(B)
shall survive the expiration or termination of this Lease.
16.3 FORCE MAJEURE. The obligations of the parties hereunder shall
not be affected, impaired or excused, and neither Landlord nor Tenant shall have
any liability whatsoever to the other, with respect to any act, event or
circumstance arising out of (a) Landlord's or Tenant's (as the case may be)
failure to fulfill, or delay in fulfilling any of its obligations under this
Lease by reason of labor dispute, governmental preemption of property in
connection with a public emergency or any other cause, whether similar or
dissimilar, beyond Landlord's or Tenant's (as the case may be) reasonable
control; or (b) any failure or defect in the supply, quantity or character of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or, others serving the Property, beyond
Landlord's or Tenant's (as the case
21
may be) reasonable control; provided, however, in no event shall the provisions
of this SECTION 16.3 apply to Tenant's obligations to pay Base Rent and
Additional Rent hereunder.
SECTION 17. DAMAGE OR DESTRUCTION
17.1 NOTIFICATION AND REPAIR. Tenant shall give prompt notice to
Landlord and Agent of any fire or other casualty to the Premises or the
Property. Subject to the provisions of SECTION 17.3 below, if the Property or
the Premises is damaged by fire or other insured casualty, Landlord shall repair
(or cause Agent to repair) the damage and restore and rebuild the Property
and/or the Premises (except for Tenant's Property and any Tenant Alterations)
which repairs shall be commenced within ten (10) days after the later to occur
of (a) notice to it of the damage or destruction, and (b) the adjustment of the
insurance proceeds attributable to such damage and such repairs shall be
performed with reasonable dispatch thereafter. Subject to the provisions of
SECTION 17.3 below, Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for purported
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Property pursuant to this
SECTION. Landlord (or Agent, as the case may be) shall use its diligent, good
faith efforts to make such repair or restoration promptly and in such manner as
not to unreasonably interfere with Tenant's use and occupancy of the Premises,
but Landlord or Agent shall not be required to do such repair or restoration
work except during normal business hours of business days.
17.2 RENTAL ABATEMENT. If (a) the Property is damaged by fire or
other casualty thereby causing the Premises to be inaccessible, or (b) the
Premises are partially damaged by fire or other casualty, the Rent shall be
proportionally abated to the extent of any actual loss of use of the Premises by
Tenant.
17.3 TOTAL DESTRUCTION. If the Property or the Premises shall be
totally destroyed by fire or other casualty, or if the Property shall be so
damaged by fire or other casualty that (in the opinion of a reputable contractor
or architect designated by Landlord) (a) its repair or restoration requires more
than one hundred eighty (180) days, or (b) the damage (i) requires the
expenditure of more than fifty percent (50%) of the full insurable value of the
Property immediately prior to the casualty; and (ii) occurs during the last two
(2) years of Lease Term, Landlord and Tenant shall each have the option to
terminate this Lease (by so advising the other, in writing) within ten (10) days
after Landlord delivers to Tenant written notice of the opinion of said
contractor or architect, but in all events prior to the commencement of a
restoration of the Premises or the Property by Landlord. In such event, the
termination shall be effective as of the date upon which either Landlord or
Tenant, as the case may be, receives timely written notice from the other
terminating this Lease pursuant to the preceding sentence. If neither Landlord
nor Tenant timely delivers a termination notice, this Lease shall remain in full
force and effect. Provided, however, if (A) any holder of a mortgage or deed of
trust encumbering the Property or landlord pursuant to a ground lease
encumbering the Property (collectively, "Superior Parties") or other party
entitled to the insurance proceeds fails to make such proceeds available to
Landlord in an amount sufficient for restoration of the Premises or the
Property, or (B) the issuer of any casualty insurance policies on the Property
fails to make available to Landlord sufficient proceeds for restoration of, the
Premises or the Property, then Landlord may, at Landlord's sole option,
terminate this Lease by giving Tenant written notice to such effect within
thirty (30) days after Landlord receives notice from the Superior Party or
insurance company, as the case may be, that such proceeds shall not be made
available, in which event the termination of this Lease shall be effective as of
the date Tenant receives written notice from Landlord of Landlord's election to
terminate this Lease. For purposes of this SECTION 17.3 only, "full insurable
value" shall mean replacement cost, less the cost of footings, foundations and
other structures below grade.
SECTION 18. EMINENT DOMAIN
If the whole, or any substantial portion, of the Property is taken or
condemned for any public use under any Laws or by right of eminent domain, or by
private purchase in lieu thereof (collectively, a "Taking"), Landlord may
terminate this Lease effective when the physical taking of said Premises occurs,
by giving written notice to Tenant on or before such physical taking.
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In the event of a Taking that would prevent or materially interfere with the
Permitted Use of the Premises, Tenant shall have the right to terminate this
Lease effective when the physical taking of said Premises occurs by giving
written notice to Landlord on or before such physical taking. In the event of a
Taking of less than a substantial portion of the Property, or if the Taking is
temporary (regardless of the portion of the Property affected), this Lease shall
not terminate, but the Rent payable hereunder shall be proportionally abated to
the extent of any actual loss of use of the Premises by Tenant. Landlord shall
be entitled to any and all payment, income, rent or award, or any interest
therein whatsoever, which may be paid or made in connection with such a Taking,
and Tenant shall have no claim against Landlord for the value of any unexpired
portion of this Lease. Notwithstanding the foregoing, Tenant may make a claim
for damages provided such amount if not subtracted from Landlord's award, in
which case any compensation specifically awarded to Tenant for loss of business
or goodwill, or for its personal property, shall be the property of Tenant.
SECTION 19. SURRENDER AND HOLDOVER
19.1 SURRENDER. On the last day of the Term, or upon any earlier
termination of this Lease; or upon any re-entry by Landlord upon the Premises,
(a) Tenant shall quit and surrender the Premises to Landlord "broom-clean" and
in good order, condition and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, (b) Tenant shall remove (i) all of Tenant's Property therefrom, except as
otherwise expressly provided in this Lease, (ii) any of Tenant's Alterations
(which term expressly excludes any Tenant Improvements) designated for removal
by Landlord pursuant to SECTION 10 above, and (iii) all of Tenant's wiring and
cabling; provided, however, that Tenant shall not be required to remove Tenant's
wiring and cabling (including above ceiling) provided that such wiring and
cabling is left in good and usable condition as originally designed for the next
tenant's use of the Premises, (c) Tenant shall promptly repair any damage caused
by such removal. If Tenant fails to do so, Landlord may restore the Premises to
such condition at Tenant's expense, Landlord may cause all of said property to
be removed at Tenant's expense, and Tenant hereby agrees to pay all the costs
and expenses thereby reasonably incurred. All of said property that is not
removed within ten (10) days following Landlord's written demand therefor shall
be conclusively deemed to have been abandoned by Tenant, and Landlord shall be
entitled to dispose of such property at Tenant's cost without thereby incurring
any liability to Tenant. This SECTION 19.1 shall survive the termination or
expiration of this Lease.
19.2 HOLDOVER. If Tenant remains in possession after the Expiration
Date hereof or after any earlier termination date of this Lease or of Tenant's
right to possession: (a) Tenant shall be deemed a tenant-at-will; (b) Tenant
shall pay one hundred fifty percent (150%) of the aggregate of the Base Rent
last prevailing hereunder, and also shall pay all damages sustained by Landlord,
directly by reason of Tenant's remaining in possession after the expiration or
termination of this Lease; (c) there shall be no renewal or extension of this
Lease by operation of law; and (d) the tenancy-at-will may be terminated upon
thirty (30) days' written notice from Landlord. The provisions of this SECTION
19.2 shall not constitute a waiver by Landlord of any remedies of Landlord in
the event of a holdover (including, without limitation, re-entry rights of
Landlord provided hereunder or by law) or a consent by Landlord to any holding
over by Tenant upon the expiration or earlier termination of this Lease.
SECTION 20. EVENTS OF DEFAULT
20.1 DEFAULT PROVISIONS. Each of the following shall constitute a
default by Tenant under this Lease: (a) if Tenant fails to pay Rent or any other
payment when due hereunder and such failure remains uncured for a period of (i)
five (5) business days following written notice from Landlord on the two (2)
occasions in any twelve (12) month period, and (ii) within five (5) business
days after the same is due on any subsequent occasion within said twelve (12)
month period, or (b) if Tenant fails to timely comply with the obligations
imposed on Tenant under this Lease (other than the obligation to pay Rent) for a
period of thirty (30) days after Landlord's delivery to Tenant of written notice
of such default under this SECTION 20.1(B); provided, however, that if the
default cannot, by its nature, be cured within such thirty (30) day period, but
Tenant commences and diligently pursues a cure of such default promptly within
the initial thirty (30) day cure period, then Landlord shall not exercise its
remedies under SECTION 21 unless such default remains uncured beyond a
reasonable time period required to cure such default not to exceed one hundred
fifty (150) days after Landlord's notice, or (c) Tenant shall assign or sublet
all or a portion of the Premises in contravention of the provisions of SECTION 7
of this Lease.
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20.2 BANKRUPTCY OF TENANT. It shall be a default by Tenant under this
Lease if Tenant makes an assignment for the benefit of creditors or files a
voluntary petition under any state or federal bankruptcy or insolvency law, or
an involuntary petition alleging an act of bankruptcy or insolvency is filed
against Tenant under any state or federal bankruptcy or insolvency law that is
not dismissed within ninety (90) days, or whenever a petition is filed by or
against (to the extent not dismissed within ninety (90) days) Tenant under the
reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law or like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Code or
similar law, or whenever a receiver of Tenant, or of, or for, the property of
Tenant shall be appointed, or Tenant admits it is insolvent or is not able to
pay its debts as they mature.
SECTION 21 RIGHTS AND REMEDIES
21.1 LANDLORD'S CURE RIGHTS UPON DEFAULT OF TENANT. If Tenant
defaults in the performance of any of its obligations under this Lease,
Landlord, without thereby waiving such default, may (but shall not be obligated
to) perform the same for the account, and at the expense of, Tenant upon
compliance with any notice requirements and cure periods set forth in SECTION
21.
21.2 LANDLORD'S REMEDIES. In the event of any default by Tenant under
this Lease, Landlord, at its option, and after the proper notice and cure
period, but without additional notice or demand from Landlord, if any, as
provided in SECTION 21 has expired, shall, in addition to all other rights and
remedies provided in this Lease, or otherwise at law or in equity have the
following rights and remedies:
(a) Terminate this Lease by giving Tenant notice of termination, in
which event this Lease shall expire and terminate on the date specified in such
notice of termination and all rights of Tenant under this Lease and in and to
the Premises shall terminate. Tenant shall remain liable for all obligations
under this Lease arising up to the date of such termination, and Tenant shall
surrender the Premises to Landlord on the date specified in such notice.
Furthermore, Tenant shall be liable to Landlord for the unamortized balance of
any improvement allowance and brokerage fees paid in connection with the Lease.
(b) Terminate this Lease as provided in subparagraph (a) above and
recover from Tenant all damages Landlord may incur by reason of Tenant's
default, including, without limitation, an amount which, at the date of such
termination is equal to the sum of the following: (i) the value of the excess,
if any, discounted at the prime rate of interest (as reported in the WALL STREET
JOURNAL), of (A) the Base Rent, Additional Rent and all other sums that would
have been payable hereunder by Tenant for the period for the remainder of the
Lease Term had this Lease not been terminated (said period being referred to
herein as the "Remaining Term"), LESS (B) the aggregate reasonable rental value
of the Premises for the Remaining Term, as determined by a real estate broker
licensed in the State of Georgia who has at least ten (10) years of experience;
(ii) the costs of recovering possession of the Premises and all other expenses
incurred by Landlord due to Tenant's default, including, without limitation,
reasonable attorney's fees actually incurred (without regard to statutory
interpretation) and the cost to prepare the Premises for re-letting (all costs
and expenses set forth in this clause (ii) being referred to herein,
collectively, as the "Default Damages"); and (iii) the unpaid Base Rent and
Additional Rent that accrued prior to the date of termination, plus any interest
and late fees due hereunder and any other sums of money and damages owing on the
date of termination by Tenant to Landlord under this Lease or in connection with
the Premises. The amount as calculated above shall be deemed immediately due and
payable. Landlord and Tenant acknowledge and agree that the payment of the
amount set forth in clause (i) above shall not be deemed a penalty, but shall
merely constitute payment of liquidated damages, it being understood that actual
damages to Landlord are extremely difficult, if not impossible, to ascertain.
Tenant expressly acknowledges and agrees that the liabilities and remedies
specified in this subparagraph (b) shall survive the termination of this Lease.
Notwithstanding the foregoing, Landlord acknowledges and agrees that so long as
Tractor Supply Company or its Permitted Transferee is the Tenant hereunder,
Landlord shall not be entitled to recover payment of the amount set forth in
clause (i) above.
(c) Without terminating this Lease, terminate Tenant's right to
possession of the Premises as of the date of Tenant's default (after the
expiration of all applicable notice and cure periods), and thereafter (i)
neither Tenant nor any person claiming under or through Tenant shall
24
be entitled to possession of the Premises, and Tenant shall immediately
surrender the Premises to Landlord; and (ii) Landlord may re-enter the Premises
and dispossess Tenant and any other occupants of the Premises by any lawful
means and may remove their effects, without prejudice to any other remedy which
Landlord may have. Thereafter, Landlord may, but shall not be obligated to,
re-let all or any part of the Premises as the agent of Tenant for a term
different from that which would otherwise have constituted the balance of the
Lease Term and for rent and on terms and conditions different from those
contained herein, whereupon Tenant shall be obligated to pay to Landlord as
liquidated damages the difference between the rent provided for herein and that
provided for in any lease covering a subsequent re-letting of the Premises, for
the Remaining Term, together with all Default Damages. Neither the filing of a
dispossessory proceeding nor an eviction of personalty in the Premises shall be
deemed to terminate the Lease.
(d) Allow the Premises to remain unoccupied and collect rent from
Tenant as it comes due; provided, however, that to the extent required by
applicable law, Landlord shall use reasonable efforts to mitigate its damages.
21.3 ADDITIONAL RIGHTS OF LANDLORD. Any and all costs, expenses and
disbursements, of any kind or nature, incurred by Landlord or Agent in
connection with the enforcement of any and all of the terms and provisions of
this Lease, including reasonable attorneys fees (through all appellate
proceedings) actually incurred (without regard to statutory interpretation),
shall be due and payable (as Additional Rent) upon Landlord's submission of an
invoice therefor. All sums advanced by Landlord or Agent on account of Tenant
under this SECTION, or pursuant to any other provision of this Lease, and all
Base Rent and Additional Rent, if delinquent or not paid by Tenant and received
by Landlord when due hereunder, shall bear interest at the rate of five percent
(5%) per annum above the "prime" or "reference" or "base" rate of interest
publicly announced as such, from time to time, by Bank of America, N.A. from the
due date thereof until paid, and such interest shall be and constitute
Additional Rent and be due and payable upon Landlord's or Agent's submission of
an invoice therefor. The various rights, remedies and elections of Landlord
reserved, expressed or contained herein are cumulative and no one of them shall
be deemed to be exclusive of the others or of such other rights, remedies,
options or elections as are now or may hereafter be conferred upon Landlord by
law.
21.4 EVENT OF BANKRUPTCY. In addition to, and in no way limiting the
other remedies set forth herein, Landlord and Tenant agree that if Tenant ever
becomes the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy laws,
as now enacted or hereinafter amended, then: (a) "adequate assurance of future
performance" by Tenant and/or any assignee of Tenant pursuant to Bankruptcy Code
Section 365 will include (but not be limited to) payment of an additional/new
security deposit in (the amount of two (2) times the then current monthly Base
Rent payable hereunder; (b) any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed, without
further act or deed, to have assumed all of the obligations of Tenant arising
under this Lease on and after the effective date of such assignment. Any such
assignee shall, upon demand by Landlord, execute and deliver to Landlord an
instrument confirming such assumption of liability; (c) notwithstanding anything
in this Lease to the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated as "Rent"; shall
constitute "rent" for the purposes of Section 502(b)(6) of the Bankruptcy Code;
and (d) if this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered to Landlord or Agent (including Base Rent,
Additional Rent and other charges hereunder), shall be and remain the exclusive
property of Landlord and shall not constitute property of Tenant or of the
bankruptcy estate of Tenant. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord or Agent shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly paid to or
turned over to Landlord.
21.5 TENANT'S CURE RIGHTS. If Landlord defaults in the performance of
any of its obligations under this Lease, Tenant shall give written notice of
such failure to Landlord, and Landlord shall have thirty (30) days to cure any
such default, except to the extent such failure is of an emergency nature, in
which event Landlord shall cure such default within a reasonable time under the
circumstances; provided, however, that if the term, condition, covenant or
obligation to be performed by Landlord is such that it cannot reasonably be
performed within thirty (30) days,
25
such default shall be deemed to have been cured if Landlord commences such
performance within said thirty-day period and thereafter diligently undertakes
to complete the same. Upon the occurrence of any such default, Tenant may xxx
for injunctive relief or to recover damages for any loss directly resulting from
the breach, but Tenant shall not be entitled to terminate this Lease or
withhold, offset or xxxxx any sums due hereunder. As to Landlord's maintenance
and repair obligations hereunder, if Landlord has not cured or commenced to cure
a maintenance or repair default set forth in said notice from Tenant within the
time period set forth above, Tenant may undertake all reasonable action to cure
Landlord's failure of performance. If Tenant elects to cure said default, Tenant
shall, prior to commencement of said work, provide to Landlord a specific
description of the work to be performed by Tenant and the name of Tenant's
contractor. Any materials used shall be of equal or better quality than
currently exists in the Building and Tenant's contractor shall be adequately
insured and of good reputation. Landlord agrees to reimburse Tenant on demand
for all reasonable, third party out-of-pocket expenses incurred by Tenant in
connection therewith, provided that Tenant delivers to Landlord adequate bills
or other supporting evidence substantiating said cost. If Landlord does not
reimburse Tenant or give Tenant notice of objection to such reimbursement within
ninety (90) days following Tenant's demand as aforesaid, , Tenant shall have the
right to set off said reimbursement from Tenant's Proportionate Share of CAM
Charges payable by Tenant to Landlord hereunder.
SECTION 22. TAX ABATEMENT PROGRAM
22.1 APPLICATION. Landlord acknowledges that it has agreed to
participate in the Xxxxxx-Xxxxxx County real estate tax abatement program (the
"Tax Abatement Program") for the benefit of Tenant. Landlord and Tenant
heretofore filed the application for the Tax Abatement Program. Tenant shall
cooperate fully with Landlord in connection with its participation in the Tax
Abatement Program. Tenant acknowledges that participation in the Tax Abatement
Program requires that Tenant generate a minimum of one hundred (100) jobs at the
Premises (the "Job Requirement"). Tenant hereby agrees to (a) satisfy the Job
Requirement within the time period required under the Tax Abatement Program, (b)
maintain the Job Requirement throughout as long as the Tax Abatement Program is
in effect, and (c) file any required documents confirming Tenant's satisfaction
of the Job Requirement.
22.2 REIMBURSEMENT. Tenant shall promptly reimburse Landlord for any
and all costs incurred by Landlord and related to the Tax Abatement Program,
including, without limitation (a) the costs, if any, to file the application,
(b) attorneys' fees, and (c) the cost of a leasehold title insurance policy
insuring Landlord's interest in the Property following Landlord's conveyance of
fee title to the Property as described below.
22.3 BENEFITS. Following the inclusion of the Property in the Tax
Abatement Program Landlord shall pass through to Tenant all reductions or
abatements applicable to the Premises. If the applicable authority elects not to
include the Property in the Tax Abatement Program or if the Property is included
in the Tax Abatement Program and thereafter removed therefrom at any point
during the Lease Term for any reason, Tenant's obligations under this Lease
shall not be affected.
22.4 MASTER LEASE. Landlord and Tenant acknowledge and agree that the
Tax Abatement Program requires that Landlord convey fee title to the Property to
a development authority with a leaseback of the Property to Landlord pursuant to
a Master Lease in form reasonably acceptable to Tenant (the "Master Lease") and
thus, this Lease shall automatically become a sublease for the term of the
Master Lease and subject to the terms and conditions of the Master Lease.
Notwithstanding, but without limiting the foregoing, Tenant shall, upon request,
execute any and all documents necessary to confirm the status of this Lease as a
sublease of the Master Lease and Tenant's consent thereto and that this Lease
shall survive and become a prime lease if the Lease Term shall extend beyond the
term of the Master Lease.
22.5 ADDITIONAL RENT. Tenant shall review and approve the Master
Lease and shall comply with all terms and conditions thereof. Tenant
acknowledges that Additional Rent under this Lease to be paid by Tenant shall
include any payment Landlord is required to make under the Master Lease. Tenant
shall indemnify landlord from and against all claims, damages, costs and
expenses, including without limitation, reasonable attorney's fees actually
incurred without regard to statutory interpretation and court costs, which
Landlord may suffer as a result of a
26
default under the Master Leased caused by the acts or omissions of Tenant. This
SECTION 22.5 shall survive the expiration or any earlier termination of this
Lease.
22.6 LANDLORD COMPLIANCE. Provided that this Lease is in full force
and effect and Tenant is not in default hereunder (and has not caused a default
under the Master Lease), Landlord hereby agrees that Landlord shall comply in
all material respect with all obligations of the "Lessee" under the Master Lease
in order to preserve unto Tenant all of the benefits of the Tax Abatement
Program. If as a result of Landlord's default under the Master Lease, the
Property no longer qualifies for the Tax Abatement Program, and provided that
(a) such default was not caused by Tenant, and (b) this Lease is in full force
and effect and Tenant is not in default hereunder, then Landlord shall pay (or
credit to) Tenant an amount equal to the real estate tax savings that Tenant
would have received (and at the time such savings would have been received)
prior to January 31, 2007 had the Tax Abatement Program still been in effect.
22.7 OPTION. The documents to be executed by Landlord to implement
the Tax Abatement Program must be in a form acceptable to Landlord. The Master
Lease must contain an option (the "Option") in favor of Landlord to purchase the
Property for a nominal amount (which Tenant agrees to prepay on Landlord's
behalf) and Landlord shall receive a leasehold title insurance policy, the cost
of which shall be paid by Tenant, insuring Landlord's interest as Tenant under
the Master Lease and the Option.
22.8 PURCHASE. Provided the Tax Abatement Program has been
implemented, in the event that Landlord elects to sell the Property during the
Term, Landlord will first require that the purchaser take an assignment of the
Master Lease in lieu of fee title to the Property so as to preserve the Tax
Abatement Program. Should the proposed purchaser refuse such an assignment,
Landlord shall have the right to exercise the Option and repurchase the
Property, thereby possibly ending participation in the Tax Abatement Program,
provided that so long as (i) Landlord exercises the Option prior to January 31,
2006, (ii) Tenant is not in default under the Lease, and (iii) as a result of
Landlord's exercise of the Option, the Property is no longer part of the Tax
Abatement Program, Landlord shall pay (or credit to) Tenant an amount equal to
the real estate tax savings that Tenant would have received prior to January 31,
2006 had the tax abatement program still been in effect.
SECTION 23. MISCELLANEOUS
23.1 MERGER. All prior understandings and agreements between the
parties are merged in this Lease, which alone fully and completely expresses the
agreement of the parties. No agreement shall be effective to modify this Lease,
in whole or in part, unless such agreement is in writing, and is signed by the
party against whom enforcement of said change or modification is sought.
23.2 NOTICES. Any notice required to be given by either party
pursuant to this Lease, shall be in writing and shall be deemed to have been
properly given, rendered or made only if personally delivered, or if sent by
Federal Express or other comparable commercial overnight delivery service,
addressed to the other party at the addresses set forth below (or to such other
address as Landlord or Tenant may designate to each other from time to time by
written notice), and shall be deemed to have been given, rendered or made on the
day so delivered or on the first business day after having been deposited with
the courier service:
If to Landlord Duke Realty Limited Partnership
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Legal Department - Atlanta Market
At all times with a copy to: Duke Realty Limited Partnership
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Senior Property Manager - Atlanta Market
If to Tenant: Tractor Supply Company
000 Xxxx Xxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Logistics Department
27
At all times with a copy to: Tractor Supply Company
000 Xxxx Xxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxx, 00000
Attn: Real Estate Department
At all times with a copy to: Xxx X. Xxxxx, Esq.
Xxxxxxxx & Xxx, PLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
23.3 NON-WAIVER. The failure of either party to insist, in any one or
more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the performance
of such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
23.4 LEGAL COSTS. Any party in breach or default under this Lease
(the "Defaulting Party") shall reimburse the other party (the "Nondefaulting
Party") upon demand for any reasonable legal fees and court (or other
administrative proceeding) costs or expenses that the Nondefaulting Party incurs
in connection with the breach or default, regardless whether suit is commenced
or judgment entered. Such costs shall include reasonable legal fees actually
incurred (without regard to statutory interpretation) and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, in
the event of litigation, the court in such action shall award to the party in
whose favor a judgment is entered a reasonable attorneys' fees actually incurred
(without regard to statutory interpretation) and costs, which sum shall be paid
by the losing party. Tenant shall pay Landlord's attorneys' reasonable fees
incurred in connection with Tenant's request for Landlord's consent under
provisions of this Lease governing assignment and subletting, or in connection
with any other act which Tenant proposes to do and which requires Landlord's
consent.
23.5 PARTIES BOUND. Except as otherwise expressly provided for in
this Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. Tenant hereby releases Landlord
named herein from any obligations of Landlord for any period subsequent to the
conveyance and transfer of Landlord's ownership interest in the Property. In the
event of such conveyance and transfer, Landlord's obligations shall thereafter
be binding upon each transferee (whether Successor Landlord or otherwise). No
obligation of Landlord shall arise under this Lease until the instrument is
signed by, and delivered to, both Landlord and Tenant.
23.6 RECORDATION OF LEASE. Tenant shall not record or file this Lease
nor a memorandum thereof in the public records of any county or state.
23.7 SURVIVAL OF OBLIGATIONS. Upon the expiration or other
termination of this Lease, neither party shall have any further obligation or
liability to the other except as otherwise expressly provided in this Lease and
except for such obligations as, by their nature or under the circumstances, can
only be, or by the provisions of this Lease, may be performed after such
expiration or other termination.
23.8 GOVERNING LAW; CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Property is
located. If any provision of this Lease shall be invalid or unenforceable, the
remainder of this Lease shall not be affected but shall be enforced to the
extent permitted by law. The captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation or other provision of this Least to be performed
by Tenant, shall be construed as a separate and independent covenant of Tenant,
not dependent on any other provision of this Lease. All terms and words
28
used in this Lease, regardless of the number or gender in which they are used,
shall be deemed to include any other number and any other gender as the context
may require. This Lease may be executed in counterpart and, when all counterpart
documents are executed, the counterparts shall constitute a single binding
instrument.
233.9 TIME. Time is of the essence of this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is recognized as
a holiday in the state in which the Property is located, then such time shall be
deemed extended to the next day that is not a Saturday, Sunday or holiday in
said state.
233.10 AUTHORITY OF TENANT. If Tenant is a corporation, partnership,
association or any other entity, it shall deliver to Landlord, concurrently with
the delivery to Landlord of an executed Lease, certified resolutions of Tenant's
directors or other governing person or body (a) authorizing execution and
delivery of this Lease and the performance by Tenant of its obligations
hereunder, and (b) certifying the authority of the party executing the Lease as
having been duly authorized to do so.
23.11 WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS
LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.
23.12 SUBMISSION OF LEASE. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to lease. This
Lease is not effective until execution by and delivery to both Landlord and
Tenant.
23.13 BROKERS FEE. The parties hereby represent and warrant that the
only real estate brokers involved in the negotiation and execution of this Lease
are the Brokers. Each party shall indemnify the other from any and all liability
for the breach of this representation and warranty on its part and shall pay any
compensation to any other broker or person who may be entitled thereto. Upon the
execution of this Lease by Landlord and Tenant, Landlord shall pay all
commissions, fees and expenses due and payable to Brokers pursuant to a separate
agreement. The parties acknowledge that certain officers, directors,
shareholders, or partners of Landlord or its affiliates are licensed real estate
brokers and/or salesmen under the laws of the State of Georgia. Tenant consents
to such parties acting in such dual capacities.
23.14 RIDERS. All Riders and Exhibits attached hereto and executed (or
initialed both by Landlord and Tenant) shall be deemed to be a part hereof and
hereby incorporated herein.
23.16 USUFRUCT. Tenant's interest in the Premises is a usufruct, not
subject to levy and sale, and not assignable by Tenant except as expressly set
forth herein.
23.17. FINANCIAL STATEMENTS. Tenant shall have no obligation to provide
any financial statements to Landlord if Tenant is a public company and such
financial statements are publicly available. In the event that Tenant is no
longer a publicly traded company, Tenant shall provide to Landlord, upon
request, a copy of Tenant's most recent financial statements (certified and
audited if the Base Rent hereunder exceeds $100,000). Such financial statements
shall be signed by Tenant (or an officer of Tenant, if applicable) who shall
attest to the truth and accuracy of the information set forth in such
statements. All financial statements provided by Tenant to Landlord hereunder
shall be prepared in conformity with generally accepted accounting principles,
consistently applied. Notwithstanding the foregoing,
(Remainder of Page Intentionally Left Blank)
29
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD: DUKE REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership
BY: Duke Realty Corporation
BY:/S/ XXXXXX X. XXXXXXX
-------------------------------
TITLE: EXECUTIVE VICE PRESIDENT
----------------------------
TENANT: Tractor Supply CoMPANY,
a Delaware corporation
BY:/S/ XXXXX XXXX
-------------------------------
TITLE: VICE PRESIDENT
----------------------------
30
EXHIBIT A
DEPICTION OF PROPERTY
[TO BE SUPPLIED]
1
EXHIBIT B
CONSTRUCTION DRAWINGS
[TO BE SUPPLIED]
1
EXHIBIT B-1
SCOPE OF WORK
[TO BE SUPPLIED]
1
EXHIBIT B-2
LOAD BEARING CAPACITY
[TO BE SUPPLIED]
1
EXHIBIT B-3
SITE PLAN
(PREMISES, EXPANSION SPACE, OFFICE PARKING, TRAILER PARKING)
[TO BE SUPPLIED]
1
EXHIBIT B-4
COMPUTER ROOM
[TO BE SUPPLIED]
1
EXHIBIT C
RENT AND LANDLORD ADDRESS
1. Landlord's Address for Payment of Rent:
Duke Realty Limited Partnership
00 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
2. Rentable Area of the Premises (prior to 11/1/05): 260,578 sq. ft.
Rentable Area of the Premises (as of 11/1/05): 312,178 sq. ft.
3. Rental Area of Building: 520,570
4. Tenant's Proportionate Share (prior to 11/1/05): 50.06%
Tenant's Proportionate Share (as of 11/1/05): 59.97%
5. Rent:
Year Annual Monthly
---- ------ -------
1 2/1/04 - 1/31/05 $651,445.00 $54,287.08
2 2/1/05 - 10/31/05 $697,368.90 $55,372.83
11/1/05 - 1/31/06 $66,337.83
3 2/1/06 - 1/31/07 $811,662.80 $67,638.57
4 2/1/07 - 1/31/08 $827,271.70 $68,939.31
5 2/1/08 - 1/31/09 $842,880.60 $70,240.05
6 2/1/09 - 1/31/10 $858,489.50 $71,540.79
7 2/1/10 - 1/31/11 $877,220.18 $73,101.68
8 2/1/11 - 1/31/12 $895,950.86 $74,662.57
9 2/1/12 - 1/31/13 $914,681.54 $76,223.46
10 2/1/13 - 1/31/14 $933,412.22 $77,784.35
Annual and Monthly Rents during any Renewal Term will be determined in
accordance with Section 2.2 of the Lease.
1
EXHIBIT D
LETTER OF UNDERSTANDING
Duke Realty Limited Partnership, an Indiana limited partnership
Attention: [Property Manager]
[Address] [City, State Zip]
RE: Lease between DUKE REALTY LIMITED PARTNERSHIP, AN INDIANA LIMITED
PARTNERSHIP ("Landlord"), and ___________________________ ("Tenant") for
the premises located at ________________________________________ (the
"Premises"), dated _________________ (the "Lease").
Dear ____________________:
The undersigned, on behalf of the Tenant, certifies to the Landlord as
follows:
1. The Commencement Date under the Lease is _________________.
2. The Rent Commencement Date is___________________.
3. The Expiration Date of the Lease is _________________.
4. The Lease (including amendments or guaranty, if any) is the
entire agreement between Landlord and Tenant as to the leasing
of the Premises and is in full force and effect.
5. The Landlord has completed the improvements designated as
Landlord's obligation under the Lease, if any, and Tenant has
accepted the Premises as of the Commencement Date.
6. To the best of the undersigned's knowledge, there are no uncured
events of default by either Tenant or Landlord under the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of
Understanding to be executed this ____ day of ___________, 2003.
------------------------------------
By:_________________________________
Printed Name:_______________________
Title: _____________________________
1
EXHIBIT E
BUILDING SIGN
[TO BE SUPPLIED]
1
