Exhibit 10.1
INDUSTRIAL BUILDING LEASE
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. Effective Date of Lease: __________, 2006
1.2. Landlord: First Industrial Development Services, Inc., a Maryland
corporation
1.3. Tenant: Deposition Sciences, Inc., an Ohio corporation
1.4. Premises: Approximately 8.90 acres of land on which the Building (the
"BUILDING") commonly known as 0000 Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx
is located, which Building contains approximately 143,750 rentable
square feet, as legally described on EXHIBIT A attached hereto.
1.5. Lease Term: Ten (10) years ("TERM"), commencing _______, 2006
("COMMENCEMENT DATE") and ending, subject to SECTION 2.3 and SECTION
2.5 below, on _____, 2016 ("EXPIRATION DATE").
1.6. Permitted Uses: (See SECTION 4.1) Manufacturing, research and
development relating to manufacture of coatings and coating machinery,
operating of coating machinery, application of coatings, manufacture
of etched products, and office uses incidental thereto.
1.7. Tenant's Guarantor: Advanced Lighting Technologies, Inc., an Ohio
corporation.
1.8. Brokers: None.
1.9. Security/Damage Deposit: None.
1.10. Exhibits to Lease: The following exhibits are attached to and made a
part of this Lease. EXHIBIT A (legal description); EXHIBIT B (Tenant
Operations Inquiry Form); EXHIBIT C (Broom Clean Condition and Repair
Requirements), EXHIBIT D (Termination Value), EXHIBIT E (Rent Schedule
for Year 1), and EXHIBIT F (Tenant's Property).
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
Term and subject to the conditions of this Lease.
2.2. TYPES OF RENTAL PAYMENTS. Tenant shall pay net base rent to
Landlord in monthly installments, in advance, on the first day of each and every
calendar month during the Term of this Lease (the "BASE RENT") in the amounts
and for the periods as set forth below:
RENTAL PAYMENTS
Annual Monthly
Lease Base Base
Period Rent Rent
------ ---------- -------------
Year 1 $1,218,725 See EXHIBIT E
Year 2 1,218,725 $101,560
Year 3 1,218,725 101,560
Year 4 1,249,193 104,099
Year 5 1,280,423 106,702
Year 6 1,312,434 109,370
Year 7 1,345,244 112,104
Year 8 1,378,875 114,906
Year 9 1,413,347 117,778
Year 10 1,448,681 120,723
Tenant shall also pay all Operating Expenses (defined below) and any other
amounts owed by Tenant hereunder (collectively, "ADDITIONAL RENT"). In the event
any monthly installment of Base Rent or Additional Rent, or both, is not paid
within 5 days of the date when due, a late charge in an amount equal to 5% of
the then delinquent installment of Base Rent and/or Additional Rent (the "LATE
CHARGE"; the Late Charge, Default Interest, as defined in SECTION 21.3 below,
Base Rent and Additional Rent shall collectively be referred to as "RENT") shall
be paid by Tenant to Landlord, 00 Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000, or if sent by overnight courier, The Northern Trust Co.,
000 X. Xxxxxxx Xxxxxx, Receipt & Dispatch, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: First Industrial, L.P., Suite 1449 (or such other entity designated
as Landlord's management agent, if any, and if Landlord so appoints such a
management agent, the "AGENT"), or pursuant to such other directions as Landlord
shall designate in this Lease or otherwise in writing.
2.3. COVENANTS CONCERNING RENTAL PAYMENTS; INITIAL AND FINAL RENT
PAYMENTS. Tenant shall pay the Rent promptly when due, without notice or demand,
and without any abatement, deduction or setoff. 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 (based on a 360 day, 12 month year) and paid to
Landlord on the Commencement Date, and the Term will be extended to terminate on
the last day of the calendar month in which the Expiration Date stated in
SECTION 1.5 occurs. In the event of any failure by Tenant to pay or discharge
any such amount, Landlord shall have all rights, powers and remedies provided
for herein or by law or otherwise in the case of nonpayment of Rent.
2.4. NET LEASE; NONTERMINABILITY.
2.4.1. This Lease is a complete "bond net lease" and Tenant's
obligations arising or accruing during the Term of this Lease to pay all Base
Rent, Additional Rent, and all other payments hereunder required to be made by
Tenant shall be absolute and unconditional, and Tenant shall pay all Base Rent,
Additional Rent and all other payments hereunder required to be made by Tenant
without notice, demand, counterclaim, set-off, deduction, or defense and without
abatement, suspension, deferment, diminution or reduction, free from any
charges, assessments, impositions, expenses or deductions of any and every kind
of and nature whatsoever. All costs, expenses and obligations of every kind and
nature whatsoever relating to the Premises and the appurtenances thereto and the
use and occupancy thereof which may arise or become due during the Term,
(whether or not the same shall become payable during the Term of this Lease or
thereafter) shall be paid by Tenant, and Landlord is not responsible for any
costs, charges, expenses or outlays of any nature whatsoever arising from or
relating to the Premises or the use or occupancy thereof, and Landlord,
Landlord's mortgagee or lender and their respective employees, shareholders,
officers, directors, members, managers, trustees, partners or principals,
disclosed or undisclosed, and their respective employees, shareholders,
officers, directors, members, managers, trustees, partners, invitees, agents or
principals, disclosed or undisclosed and all of their respective successors and
assigns (hereinafter collectively referred to as the "INDEMNITEES" and each
individually as an "INDEMNITEE"), shall be indemnified and saved harmless by
Tenant from and against the same other than by reason of such Indemnitee's
willful misconduct or gross negligence. The willful misconduct or gross
negligence of Landlord and the Indemnitee parties of Landlord shall not be
imputed to Landlord's mortgagee or lender and the Indemnitee parties of such
mortgagee or lender. Tenant assumes the sole responsibility for the condition,
use, operation, maintenance, underletting and management of the Premises, and
Tenant shall indemnify, defend and hold the Indemnitees harmless from and
against any and all liability, costs, damages, losses and claims (including
reasonable attorneys' fees and expenses) actually incurred to the extent of
matters which arise or accrue with respect to the Term of this Lease (whether or
not the same shall become payable during the Term), and the Indemnitees shall
have no responsibility in respect thereof and shall have no liability for damage
to the property of Tenant or any subtenant of Tenant on any account or for any
reason whatsoever other than by reason of such Indemnitee's willful misconduct
or gross negligence. It is the purpose and intention of the parties to this
Lease that the Base Rent due hereunder shall be absolutely net to the Landlord
and that this Lease shall yield, net to the Landlord, the Rent and all other
payments hereunder required to be made by Tenant as provided in this Lease.
2.4.2. Except as otherwise expressly provided in SECTIONS 18 and
21 of this Lease, this Lease shall not terminate, nor shall Tenant have any
right to terminate this Lease or to be released or discharged from any
obligations or liabilities hereunder for any reason, including, without
limitation: (i) any damage to or destruction of the Premises; (ii) any
restriction, deprivation (including eviction) or prevention of, or any
interference with, any use or the occupancy of the Premises (whether due to any
default in or failure of Landlord's title to the Premises or otherwise); (iii)
any condemnation, requisition or other taking or sale of the use, occupancy or
title of or to the Premises; (iv) any action, omission or breach on the part of
Landlord under this Lease or any other agreement between Landlord and Tenant;
(v) the inadequacy or failure of the description of the Premises to demise and
let to
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Tenant the property intended to be leased hereby; (vi) Tenant's acquisition or
ownership of the Premises or any sale or other disposition of the Premises;
(vii) the impossibility or illegality of performance by Landlord or Tenant or
both; (viii) any action of any court, administrative agency or other
governmental authority; or (ix) any other cause, whether similar or dissimilar
to the foregoing, any present or future law notwithstanding. Nothing in this
paragraph shall be construed as an agreement by Tenant to perform any illegal
act or to violate the order of any court, administrative agency or other
governmental authority.
2.4.3. Tenant will remain obligated under this Lease in
accordance with its terms, and will not take any action to terminate (except in
accordance with the provisions of SECTIONS 18 and 21 of this Lease, rescind or
avoid this Lease for any reason, notwithstanding any bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding affecting Landlord
or any assignee of Landlord, or any action with respect to this Lease which may
be taken by any receiver, trustee or liquidator or by any court. Tenant waives
all rights at any time conferred by statute or otherwise to quit, terminate or
surrender this Lease or the Premises, or to any abatement or deferment of any
amount payable by Tenant hereunder, or for claims against any Indemnitee for
damages, loss or expense suffered by Tenant on account of any cause referred to
in this SECTION 2.4 or otherwise (except claims arising out of the gross
negligence or willful misconduct by such Indemnitee).
2.5. OPTION TO RENEW.
2.5.1. Tenant shall have the option ("RENEWAL OPTION") to renew
this Lease for four (4) consecutive terms of five (5) years each (each, a
"RENEWAL TERM"), on all the same terms and conditions set forth in this Lease,
except that Base Rent during the Renewal Term shall be equal to Fair Market Rent
(as defined in SECTION 2.5.2 below). Tenant shall deliver written notice to
Landlord of Tenant's election to exercise the Renewal Option ("RENEWAL NOTICE")
not less than eighteen (18) months, nor more than twenty-four (24) months, prior
to the expiration date of the original Term or the first, second or third
Renewal Term, as applicable; and if Tenant fails to timely deliver the Renewal
Notice to Landlord, then Tenant shall automatically be deemed to have
irrevocably waived and relinquished the Renewal Option.
2.5.2. For the purposes of this Lease, "FAIR MARKET RENT" shall
be determined by Landlord, in its sole, but good faith, discretion based upon
the annual base rental rates then being charged in the industrial market sector
of the geographic area where the Building is situated for comparable space and
for a lease term commencing on or about the commencement date of the Renewal
Term and equal in duration to the Renewal Term, taking into consideration: the
geographic location, quality and age of the Building; the location and
configuration of the relevant space within the applicable Buildings; the extent
of service to be provided to the proposed tenant thereunder; applicable
distinctions between "gross" lease and "net" leases; the creditworthiness and
quality of Tenant; leasing commissions; and any other relevant term or condition
in making such evaluation, all as reasonably determined by Landlord. In no
event, however (and notwithstanding any provision to the contrary in SECTION
2.5.3 below), shall the Fair Market Rent be less than an amount equal to the
average rate of Base Rent in effect during the five (5) year period immediately
preceding the expiration date of the then-applicable term (the "RENEWAL RENT
FLOOR"). Landlord shall notify Tenant of Landlord's determination of Fair Market
Rent for the Renewal Term, in writing (the "BASE RENT NOTICE") within sixty (60)
days after receiving the Renewal Notice.
2.5.3. Tenant shall then have thirty (30) days after Landlord's
delivery of the Base Rent Notice in which to advise Landlord, in writing (the
"BASE RENT RESPONSE NOTICE"), whether Tenant (i) is prepared to accept the Fair
Market Rent established by Landlord in the Base Rent Notice and proceed to lease
the Premises, during the Renewal Term, at that Fair Market Rent; or (ii) elects
to withdraw and revoke its Renewal Notice, whereupon the Renewal Option shall
automatically be rendered null and void; or (iii) elects to contest Landlord's
determination of Fair Market Rent. In the event that Tenant fails to timely
deliver the Base Rent Response Notice, then Tenant shall automatically be deemed
to have elected (i) above. Alternatively, if Tenant timely elects (ii), then
this Lease shall expire on the original expiry date of the initial Term. If,
however, Tenant timely elects (iii), then the following provisions shall apply:
2.5.3.1. The Fair Market Rent shall be determined by either
the Independent Brokers or the Determining Broker, as provided and defined
below, but in no event shall the Fair Market Rent be less than the Renewal Rent
Floor.
2.5.3.2. Within thirty (30) days after Tenant timely
delivers its Base Rent Response Notice electing to contest Landlord's
determination of Fair Market Value, each of Landlord and Tenant shall advise the
other, in writing (the "ARBITRATION NOTICE"), of both (i) the identity of the
individual that each of Landlord and Tenant, respectively, is designating to act
as Landlord's or Tenant's, as the case may be, duly authorized representative
for purposes of the determination of Fair Market Rent pursuant to this SECTION
2.5.3 (the "REPRESENTATIVES"); and (ii) a list of three (3) proposed licensed
real estate brokers, any of which
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may serve as one of the Independent Brokers (collectively, the "BROKER
CANDIDATES"). Each Broker Candidate shall be duly licensed in the jurisdiction
in which the Premises is located;
(A) shall have at least five (5) years experience, on a
full-time basis, leasing industrial space
(warehouse/distribution/ancillary office) in the same
general geographic area as that in which the Premises is
located, and at least three (3) of those five (5) years of
experience shall have been consecutive and shall have
elapsed immediately preceding the date on which Tenant
delivers the Renewal Notice; and
(B) shall be independent and have no then-pending (as of the
date Landlord or Tenant designates the broker as a Broker
Candidate) brokerage relationship, formal or informal, oral
or written, with any or all of Landlord, Tenant, and any
affiliates of either or both of Landlord and Tenant
("BROKERAGE RELATIONSHIP"), nor may there have been any such
Brokerage Relationship at any time during the two (2) year
period immediately preceding the broker's designation, by
Landlord or Tenant, as a Broker Candidate.
2.5.3.3. Within fourteen (14) days after each of Landlord
and Tenant delivers its Arbitration Notice to the other, Landlord and Tenant
shall cause their respective Representatives to conduct a meeting at a mutually
convenient time and location. At that meeting, the two (2) Representatives shall
examine the list of six (6) Broker Candidates and shall each eliminate two (2)
names from the list on a peremptory basis. In order to eliminate four (4) names,
first, the Tenant's Representative shall eliminate a name from the list and then
the Landlord's Representative shall eliminate a name therefrom. The two (2)
Representatives shall alternate in eliminating names from the list of six (6)
Broker Candidates in this manner until each of them has eliminated two (2)
names. The two (2) Representatives shall immediately contact the remaining two
(2) Broker Candidates (the "INDEPENDENT BROKERS"), and engage them, as behalf of
Landlord and Tenant, to determine the Fair Market Rent in accordance with the
provisions of this SECTION 2.5.3.
2.5.3.4. The Independent Brokers shall determine the Fair
Market Rent within thirty (30) days of their appointment. Landlord and Tenant
shall each make a written submission to the Independent Brokers (no more than
ten (10) pages in length, in the aggregate, per submitting party), advising of
the rate that the submitting party believes should be the Fair Market Rate,
together with whatever written evidence or supporting data that the submitting
party desires in order to justify its desired rate of Fair Market Rent;
provided, in all events, however, that the aggregate maximum length of each
party's submission shall not exceed ten (10) pages (each such submission
package, a "FMR SUBMISSION"). The Independent Brokers shall be obligated to
choose one (1) of the parties' specific proposed rates of Fair Market Rent,
without being permitted to effectuate any compromise position.
2.5.3.5. In the event, however, that the Independent Brokers
fail to reach agreement, within twenty (20) days after the date on which both
Landlord and Tenant deliver the FMR Submissions to the Independent Brokers (the
"DECISION PERIOD"), as to which of the two (2) proposed rates of Fair Market
Rent should be selected, then, within five (5) days after the expiration of the
Decision Period, the Independent Brokers shall jointly select a real estate
broker who (x) meets all of the qualifications of a Broker Candidate, but was
not included in the original list of six (6) Broker Candidates; and (y) is not
affiliated with any or all of (A) either or both of the Independent Brokers and
(B) the real estate brokerage companies with which either or both of the
Independent Brokers is affiliated (the "DETERMINING BROKER"). The Independent
Brokers shall engage the Determining Broker on behalf of Landlord and Tenant
(but without expense to the Independent Brokers), and shall deliver the FMR
Submissions to the Determining Broker within five (5) days after the date on
which the Independent Brokers select the Determining Broker pursuant to the
preceding sentence (the "SUBMISSION PERIOD").
2.5.3.6. The Determining Broker shall make a determination
of the Fair Market Rent within twenty (20) days after the date on which the
Submission Period expires. The Determining Broker shall be required to select
one of the parties' specific proposed rates of Fair Market Rent, without being
permitted to effectuate any compromise position.
2.5.3.7. The decision of the Independent Brokers or the
Determining Broker, as the case may be, shall be conclusive and binding on
Landlord and Tenant, and neither party shall have any right to contest or appeal
such decision. Judgment may be entered, in a court of competent jurisdiction,
upon the decision of the Independent Brokers or the Determining Broker, as the
case may be.
2.5.3.8. In the event that the initial Term expires and the
Renewal Term commences prior to the date on which the Independent Brokers or the
Determining Broker, as the case may be, renders their/its decision as to the
Fair
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Market Rent, then from the commencement date of the Renewal Term through the
date on which the Fair Market Rent is determined under this SECTION 2.5.3 (the
"DETERMINATION DATE"), Tenant shall pay monthly Base Rent to Landlord at a rate
equal to 110% of the rate of monthly Base Rent in effect on the expiration date
of the initial term (the "TEMPORARY BASE RENT"). Within ten (10) business days
after the Determination Date, Landlord shall pay to Tenant, or Tenant shall pay
to Landlord, depending on whether the Fair Market Rent is less than or greater
than the Temporary Base Rent, whatever sum that Landlord or Tenant, as the case
may be, owes the other (the "CATCH-UP PAYMENT"), based on the Temporary Base
Rent actually paid and the Fair Market Rent due (as determined by the
Independent Brokers or the Determining Broker, as the case may be) during that
portion of the Renewal Term that elapses before the Catch-Up Payment is paid, in
full (together with interest thereon, as provided below). The Catch-Up Payment
shall bear interest at the rate of Prime (defined below), plus five percent
(5.0%) per annum from the date each monthly component of the Catch-Up Payment
would have been due, had the Fair Market Rent been determined prior to the
commencement of the Renewal Term, through the date on which the Catch-Up Payment
is paid, in full (inclusive of interest thereon). For purposes hereof, "PRIME"
shall mean the per annum rate of interest publicly announced by Bank One N.A.
(or its successor), from time to time, as its "PRIME" or "BASE" or "REFERENCE"
rate of interest.
2.5.3.9. The party whose proposed rate of Fair Market Rent
is not selected by the Independent Brokers or the Determining Broker, as the
case may be, shall bear all costs of all counsel, experts or other
representatives that are retained by both parties, together with all other costs
of the arbitration proceeding described in this SECTION 2.5.3, including,
without limitation, the fees, costs and expenses imposed or incurred by any or
all of the Independent Brokers and the Determining Broker.
2.5.3.10. Unless otherwise expressly agreed in writing,
during the period of time that any arbitration proceeding is pending under this
SECTION 2.5.3, Landlord and Tenant shall continue to comply with all those terms
and provisions of this Lease that are not the subject of their dispute and
arbitration proceeding, most specifically including, but not limited to,
Tenant's monetary obligations under this Lease; and, with respect to the payment
of Base Rent during that portion of the Renewal Term that elapses during the
pendency of any arbitration proceeding under this SECTION 2.5.3, the provisions
of SECTION 2.5.3.8 shall apply.
2.5.3.11. During any period of time that an arbitration is
pending or proceeding under this SECTION 2.5.3, Tenant shall have no right to
assign this Lease or enter into any sublease for all or any portion of the
Premises, notwithstanding any provision to the contrary in this Lease.
Furthermore, if this Lease requires that Landlord perform any tenant improvement
work in connection with the Renewal Term, Landlord shall be relieved of any such
obligation during the pendency of any arbitration proceeding under this SECTION
2.5.3.
2.5.4. The Renewal Option is granted subject to all of the
following conditions:
2.5.4.1. As of the date on which Tenant delivers its Renewal
Notice and continuing through the commencement date of the Renewal Term, this
Lease shall be in full force and effect and no act or omission shall occur
which, with the giving of notice or the passage of time, or both, shall
constitute a breach or Default by Tenant under this Lease.
2.5.4.2. There shall be no further right of renewal after
the expiration of the fourth Renewal Term.
2.5.4.3. The Renewal Option is personal to Tenant and may
only be exercised by Tenant or any assignee of Tenant (provided such assignment
was made with Landlord's prior written consent and otherwise in accordance with
the requirements of SECTION 8).
2.5.4.4. The Premises shall be delivered to Tenant during
the Renewal Term(s) on an as is where as basis, with no obligation on the part
of Landlord to perform any tenant improvements at the Premises.
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3. OPERATING EXPENSES.
3.1. DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For purposes of
this Section and other relevant provisions of the Lease:
3.1.1. OPERATING EXPENSES. The term "OPERATING EXPENSES" shall
mean all costs, expenses and charges of every kind or nature relating to, or
incurred in connection with, the ownership, maintenance and operation of the
Premises, including, but not limited to the following: (i) Taxes, as hereinafter
defined in SECTION 3.1.2; (ii) dues, fees or other costs and expenses, of any
nature, due and payable to any association or comparable entity to which
Landlord, as owner of the Premises, is a member or otherwise belongs and that
governs or controls any aspect of the ownership and operation of the Premises;
and (iii) any real estate taxes and common area maintenance expenses levied
against, or attributable to, the Premises under any declaration of covenants,
conditions and restrictions, reciprocal easement agreement or comparable
arrangement that encumbers and benefits the Premises and other real property
(e.g. a business park).
3.1.2. TAXES. The term "TAXES" shall mean (i) all governmental
taxes, assessments, fees and charges of every kind or nature (other than
Landlord's income taxes), whether general, special, ordinary or extraordinary,
due at any time or from time to time, during the Term and any extensions
thereof, in connection with the ownership, leasing, or operation of the
Premises, or of the personal property and equipment located therein or used in
connection therewith; and (ii) any reasonable expenses incurred by Landlord in
contesting such taxes or assessments and/or the assessed value of the Premises.
For purposes hereof, Tenant shall be responsible for any Taxes that are due and
payable at any time or from time to time during the Term and for any Taxes that
are assessed, become a lien, or accrue during any Operating Year, which
obligation shall survive the termination or expiration of this Lease.
3.1.3. OPERATING YEAR. The term "OPERATING YEAR" shall mean the
calendar year commencing January 1st of each year (including the calendar year
within which the Commencement Date occurs) during the Term.
3.2. PAYMENT OF OPERATING EXPENSES. Tenant shall directly pay, to the
appropriate entity, all Operating Expenses.
4. USE OF PREMISES AND COMMON AREAS.
4.1. USE OF PREMISES. The Premises shall be used by the Tenant for the
purpose(s) set forth in SECTION 1.6 above and for no other purpose whatsoever.
Tenant shall not, at any time, 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;
(b) cause, or be liable to cause, injury to, or in any way impair the value or
proper utilization of, all or any portion of the Premises (including, but not
limited to, the structural elements of the Premises) 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 Premises, including any covenant, condition or
restriction affecting the Premises; (d) exceed the load bearing capacity of the
floor of the Premises; (e) impair or tend to impair the character, reputation or
appearance of the Premises; or (f) have any detrimental environmental effect on
the Premises which (i) arises out of a violation or violations of Environmental
Laws or (ii) results in any material increased risk of liability to Landlord, in
Landlord's reasonable judgment. On or prior to the date hereof, Tenant has
completed and delivered for the benefit of Landlord a "Tenant Operations Inquiry
Form" in the form attached hereto as EXHIBIT B describing the nature of Tenant's
proposed business operations at the Premises, which form is intended to, and
shall be, relied upon by Landlord. From time to time during the Term (but no
more often than once in any twelve month period unless Tenant is in default
hereunder or unless Tenant assigns this Lease or subleases all or any portion of
the Premises, whether or not in accordance with SECTION 8), Tenant shall provide
an updated and current Tenant Operations Inquiry Form upon Landlord's request.
4.2. SIGNAGE. Any and all signage must at all times fully comply with
all applicable laws, regulations and ordinances. Tenant shall remove all signs
of Tenant upon the expiration or earlier termination of this Lease and
immediately repair any damage to the Premises caused by, or resulting from, such
removal.
4.3. LIENS. During the Term, Tenant will promptly, but no later than
forty-five (45) days after the filing thereof, or such shorter period as shall
prevent the forfeiture of the Premises, remove and discharge of record, by bond
or otherwise, any charge, lien, security interest or encumbrance upon the
Premises, or any Base Rent, or Additional Rent which arises for any reason,
including all liens which arise out of the possession, use, occupancy,
construction, repair or rebuilding of the Premises or by
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reason of labor or materials furnished or claimed to have been furnished to
Tenant for the Premises, but not including any permitted encumbrances or any
mechanics liens created by Landlord. Nothing contained in this Lease shall be
construed as constituting the consent or request of Landlord, express or
implied, by inference or otherwise, to or for the performance of any contractor,
laborer, materialman, or vendor of any labor or services or for the furnishing
of any materials for any construction, alteration, addition, repair or
demolition of or to the Premises or any part thereof. Notice is hereby given
that during the Term Landlord will not be liable for any labor, services or
materials furnished or to be furnished to Tenant, or to anyone holding an
interest in the Premises or any part thereof through or under Tenant, and that
no mechanic's or other liens for any such labor, services or materials shall
attach to or affect the interest of Landlord in and to the Premises. In the
event of the failure of Tenant to discharge any charge, lien, security interest
or encumbrances as aforesaid, Landlord may, if not discharged by Tenant within
three (3) business days after written notice to Tenant, discharge such items by
payment or bond or both, and SECTION 23.4 hereof shall apply. Provided Tenant is
diligently contesting any such lien or encumbrance in accordance with applicable
law, in lieu of a bond Tenant shall have the option to deposit cash with
Landlord in an amount sufficient to fully discharge such lien or encumbrance (as
reasonably determined by Landlord, the "LIEN DEPOSIT"), which Lien Deposit may
be used by Landlord to discharge, settle or otherwise satisfy the applicable
lien or encumbrance at any time after the commencement of foreclosure
proceedings or before forfeiture of the Premises or any portion thereof.
5. CONDITION AND DELIVERY OF PREMISES. Tenant agrees that Tenant is
familiar with the condition of the Premises, and Tenant hereby accepts the
foregoing on an "AS-IS," "WHERE-IS" basis. Tenant acknowledges that neither
Landlord nor Agent, nor any representative of Landlord, has made any
representation as to the condition of the foregoing or the suitability of the
foregoing for Tenant's intended use. Tenant represents and warrants that Tenant
has made its own inspection of the foregoing. Neither Landlord nor Agent shall
be obligated to make any repairs, replacements or improvements (whether
structural or otherwise) of any kind or nature to the foregoing in connection
with, or in consideration of, this Lease.
6. SUBORDINATION; ESTOPPEL CERTIFICATES; ATTORNMENT.
6.1. SUBORDINATION AND ATTORNMENT. Provided Tenant is provided with a
customary subordination, non-disturbance and attornment agreement by the holder
of any mortgage or deed of trust of Landlord, this Lease is and shall be subject
and subordinate at all times to (a) all ground leases or underlying leases that
may now exist or hereafter be executed affecting the Premises and (b) any
mortgage or deed of trust that may now exist or hereafter be placed upon, and
encumber, any or all of (x) the Premises; (y) any ground leases or underlying
leases for the benefit of the Premises; and (z) all or any portion of Landlord's
interest or estate in any of said items. Tenant shall execute and deliver,
within ten (10) days of Landlord's request, and in the form reasonably requested
by Landlord (or its lender), any documents evidencing the subordination of this
Lease. Tenant hereby covenants and agrees that Tenant shall attorn to any
successor to Landlord.
6.2. ESTOPPEL CERTIFICATE. Each of Landlord and Tenant agree, from
time to time and within 10 days after request by the other, to deliver to the
other, or their designee, an estoppel certificate stating such matters
pertaining to this Lease as may be reasonably requested by Landlord or Tenant
(as the case may be). 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.
6.3. TRANSFER BY LANDLORD. In the event of a sale or conveyance by
Landlord of the Premises, the same shall operate to release Landlord from any
future liability for any of the covenants or conditions, express or implied,
herein contained in favor of Tenant, and in such event Tenant agrees to look
solely to Landlord's successor in interest ("SUCCESSOR LANDLORD") with respect
thereto and agrees to attorn to such successor.
7. QUIET ENJOYMENT. 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.
8. ASSIGNMENT AND SUBLETTING. Tenant shall not, except as otherwise
expressly provided in this Section 8, (a) assign (whether directly or
indirectly), in whole or in part, this Lease, or (b) allow this Lease to be
assigned, in whole or in part, by operation of law or otherwise, including,
without limitation, by transfer of a controlling interest (i.e. greater than a
25% interest) of stock, membership interests or partnership interests, or by
merger or dissolution, which transfer of a controlling interest, merger or
dissolution shall be deemed an assignment for purposes of this Lease (unless (i)
Guarantor continues, following such transfer of a controlling interest, merger
or dissolution, to guaranty the obligations of the Tenant under the Lease
pursuant to the Guaranty and acknowledges the same in writing in form acceptable
to Landlord and (ii) Landlord determines that the creditworthiness of Guarantor
as of the date of such transfer, merger or dissolution is equal to or better
than the creditworthiness of Guarantor as of the date of this
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Lease), or (c) mortgage or pledge the Lease, or (d) sublet the Premises, in
whole or in part, without (in the case of any or all of (a) through (d) above)
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Tenant may, however, assign this Lease or sublease a
portion of the Premises to a wholly-owned subsidiary, provided that Tenant
advises Landlord, in writing, in advance, and otherwise complies with the
succeeding provisions of this SECTION 8. In no event shall any assignment or
sublease ever release Tenant from any obligation or liability hereunder. Any
purported assignment, mortgage, transfer, pledge or sublease made without the
prior written consent of Landlord 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. Regardless of whether or not an assignee or
sublessee executes and delivers any documentation to Landlord pursuant to the
preceding sentence, any assignee or sublessee shall be deemed to have
automatically attorned to Landlord in the event of any termination of this
Lease. 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. In the
event of an assignment of this Lease and the payment of consideration from the
assignee to the Tenant in connection therewith, 100% of such consideration shall
be paid to Landlord. With respect to the allocable portion of the Premises
sublet, in the event that the total rent and any other considerations received
under any sublease by Tenant is greater than the total Rent required to be paid,
from time to time, under this Lease, (y) Tenant shall pay to Landlord (which
amounts shall be deemed a component of the Additional Rent) fifty percent (50%)
of such excess as received from any subtenant leasing 5,000 or more square feet
under its sublease and (z) Tenant shall retain one hundred percent (100%) of
such excess as received from any subtenant leasing less than 5,000 square feet
under its sublease.
9. COMPLIANCE WITH LAWS.
9.1. COMPLIANCE WITH LAWS. Tenant shall, at its sole expense
(regardless of the cost thereof), comply with all local, state and federal laws,
rules, regulations and requirements now or hereafter in force and all judicial
and administrative decisions in connection with the enforcement thereof
(collectively, "LAWS"), whether such Laws (a) pertaining to either or both of
the Premises and Tenant's use and occupancy thereof; (b) concern or address
matters of an environmental nature; (c) require the making of any structural,
unforeseen or extraordinary changes; and (d) involve a change of policy on the
part of the body enacting the same, including, in all instances described in (a)
through (d), but not limited to, the Americans With Disabilities Act of 1990 (42
U.S.C. Section 12101 et seq.). If any license or permit is required for the
conduct of Tenant's business in the Premises, Tenant, at its expense, shall
procure such license prior to the Commencement Date, and shall maintain such
license or permit in good standing throughout the Term. Tenant shall give prompt
notice to Landlord of any written notice it receives of the alleged violation of
any Law or requirement of any governmental or administrative authority with
respect to either or both of the Premises and the use or occupation thereof.
9.2. HAZARDOUS MATERIALS. If, at any time or from time to time during
the Term (or any extension thereof), any Hazardous Material (defined below) is
generated, transported, stored, used, treated or disposed of at, to, from, on or
in the Premises by, or as a result of any act or omission of, any or all of
Tenant and any or all of Tenant's Parties (defined below): (i) Tenant shall, at
its own cost, at all times comply (and cause all others to comply) with all Laws
relating to Hazardous Materials, and Tenant shall further, at its own cost,
obtain and maintain in full force and effect at all times all permits and other
approvals required in connection therewith; (ii) Tenant shall promptly provide
Landlord or Agent with complete copies of all communications, permits or
agreements with, from or issued by any governmental authority or agency
(federal, state or local) or any private entity relating in any way to the
presence, release, threat of release, or placement of Hazardous Materials on or
in the Premises or any portion of the Premises, or the generation,
transportation, storage, use, treatment, or disposal at, on, in or from the
Premises, of any Hazardous Materials; (iii) Landlord, Agent and their respective
agents and employees shall have the right to either or both (x) enter the
Premises and (y) conduct appropriate tests for the purposes of ascertaining
Tenant's compliance with all applicable Laws or permits relating in any way to
the generation, transport, storage, use, treatment, disposal or presence of
Hazardous Materials on, at, in or from all or any portion of the Premises; and
(iv) upon written request by Landlord or Agent, Tenant shall provide Landlord
with the results of reasonably appropriate tests of air, water or soil to
demonstrate that Tenant complies with all applicable Laws or permits relating in
any way to the generation, transport, storage, use, treatment, disposal or
presence of Hazardous Materials on, at, in or from all or any portion of the
Premises. This SECTION 9.1 does not authorize the generation, transportation,
storage, use, treatment or disposal of any Hazardous Materials at, to, from, on
or in the Premises in contravention of this SECTION 9. Tenant covenants to
investigate, clean up and otherwise remediate, at Tenant's sole expense, any
release of Hazardous Materials caused, contributed to, or created by any or all
of (A) Tenant and (B) any or all of Tenant's officers, directors, members,
managers, partners, invitees, agents, employees, contractors or representatives
("TENANT PARTIES") during the Term. Such investigation and remediation shall be
performed only after Tenant has obtained Landlord's prior written consent;
provided, however, that Tenant shall be entitled to respond immediately to an
emergency without first obtaining such consent. All remediation shall be
performed in strict compliance with Laws and to the reasonable
8
satisfaction of Landlord. Tenant shall not enter into any settlement agreement,
consent decree or other compromise with respect to any claims relating to any
Hazardous Materials in any way connected to the Premises without first obtaining
Landlord's written consent (which consent may be given or withheld in Landlord's
sole, but reasonable, discretion) and affording Landlord the reasonable
opportunity to participate in any such proceedings. 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 airborne) that 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 that is or may be deemed to be hazardous, toxic, ignitable,
reactive, corrosive, dangerous, harmful or injurious, or that presents a risk to
public health or to the environment, and that is or becomes regulated by any
Law. The undertakings, covenants and obligations imposed on Tenant under this
SECTION 9.1 shall survive the termination or expiration of this Lease.
10. INSURANCE.
10.1. POLICIES. Tenant shall purchase, at its own expense, and keep in
force at all times during this Lease the policies of insurance set forth below
(collectively, "TENANT'S POLICIES"). All Tenant's Policies shall (a) be issued
by an insurance company with a Best rating of A or better and otherwise
reasonably acceptable to Landlord and shall be licensed to do business in the
state in which the Premises is located; (b) provide that said insurance shall
not be canceled or materially modified unless 30 days' prior written notice
shall have been given to Landlord; (c) provide for deductible amounts that are
reasonably acceptable to Landlord (and its lender, if applicable) and (d)
otherwise be in such form, and include such coverages, as Landlord may
reasonably require. The Tenant's Policies described in (i) and (ii) below shall
(1) provide coverage on an occurrence basis; (2) name Landlord and First
Industrial, L.P. (and its lender, if applicable) as additional insured; (3)
provide coverage, to the extent insurable, for the indemnity obligations of
Tenant under this Lease; (4) contain a separation of insured parties provision;
(5) be primary, not contributing with, and not in excess of, coverage that
Landlord may carry; and (6) provide coverage for a pollution incident arising
from a hostile fire with a sublimit of no less than $1,000,000 (in excess of
deductions). All Tenant's Policies (or, at Landlord's option, Certificates of
Insurance and applicable endorsements, including, without limitation, an
"Additional Insured-Managers or Landlords of Premises" endorsement) shall be
delivered to Landlord prior to the Commencement Date and renewals thereof shall
be delivered to Landlord's Corporate and Regional Notice Addresses at least 30
days prior to the applicable expiration date of each Tenant's Policy. In the
event that Tenant fails, at any time or from time to time, to comply with the
requirements of the preceding sentence, Landlord may (i) order such insurance
and charge the cost thereof to Tenant, which amount shall be payable by Tenant
to Landlord upon demand, as Additional Rent or (ii) impose on Tenant, as
Additional Rent, a monthly delinquency fee, for each month during which Tenant
fails to comply with the foregoing obligation, in an amount equal to five
percent (5%) of the Base Rent then in effect. Tenant shall give prompt notice to
Landlord and Agent of any bodily injury, death, personal injury, advertising
injury or property damage occurring in and about the Premises.
10.2. COVERAGES. Tenant shall purchase and maintain, throughout the
Term, a Tenant's Policy(ies) of (i) "all-risk" commercial property insurance
covering the improvements constructed, installed or located on the Premises (but
excluding Tenant's Property) against all loss or damage caused by fire, ice,
hurricane, earthquake, flood, windstorm, terrorism and such other risks of
physical loss or damage as are covered by a causes of loss special form
insurance policy, which coverage shall, at all times, be in an amount equal to
100% of the then "full replacement cost" of the Premises subject to a deductible
not to exceed $250,000.00 ("Full Replacement Cost" shall be interpreted to mean
the cost of replacing the Premises without deduction for depreciation or wear
and tear, less the cost of footings, foundations and other structures below
grade); (ii) commercial general or excess liability insurance, including
personal injury and property damage, in the amount of not less than
$2,000,000.00 per occurrence, and $5,000,000.00 annual general aggregate; (iii)
comprehensive automobile liability insurance covering Tenant against any
personal injuries or deaths of persons and property damage based upon or arising
out of the ownership, use, occupancy or maintenance of a motor vehicle at the
Premises and all areas appurtenant thereto in the amount of not less than
$1,000,000, combined single limit; (iv) commercial property insurance covering
the Premises Tenant's personal property (at their full replacement cost); (v)
workers' compensation insurance per the applicable state statutes covering all
employees of Tenant; (vi) rent loss insurance for the benefit of Landlord and if
Tenant handles, stores or utilizes Hazardous Materials in its business
operations, (vii) pollution legal liability insurance; and (viii) during any
period of construction or during which any Alterations are being made, builder's
risk coverage in an amount sufficient for such Alterations or other work or
improvements performed on the Premises by Tenant. Notwithstanding anything to
the contrary contained in this SECTION 10, Landlord shall have the right to,
upon written notice to Tenant, purchase the aforementioned Tenant's Policies on
Tenant's behalf and charge the cost thereof to Tenant, which amounts shall be
payable by Tenant to Landlord, upon demand as Additional Rent.
10.3. WAIVER OF SUBROGATION. Notwithstanding anything to the contrary
in this Lease, Landlord and Tenant mutually waive their respective rights of
recovery against each other and each other's officers, directors, constituent
partners,
9
members, agents and employees, and Tenant further waives such rights against (a)
each lessor under any ground or underlying lease encumbering the Premises and
(b) each lender under any mortgage or deed of trust or other lien encumbering
the Premises (or any portion thereof or interest therein), to the extent any
loss is insured against or required to be insured against under this Lease,
including, but not limited to, losses, deductibles or self-insured retentions
covered by Landlord's or Tenant's commercial property, general liability,
automobile liability or workers' compensation policies described above, This
provision is intended to waive, fully and for the benefit of each party to this
Lease, any and all rights and claims that might give rise to a right of
subrogation by any insurance carrier. Each party shall cause its respective
insurance policy(ies) to be endorsed to evidence compliance with such waiver.
11. ALTERATIONS.
11.1. NON-STRUCTURAL ALTERATIONS. Tenant may, from time to time at its
sole expense, make alterations or improvements in and to the Premises
(hereinafter collectively referred to as "ALTERATIONS") provided that:
(i) such Alterations are non-structural and (a) with respect to
non-structural Alterations with an aggregate cost of
$50,000.00 or less, Tenant delivers prior written notice
thereof to Landlord, and (b) with respect to non-structural
Alterations with an aggregate cost greater than $50,000,
Tenant first obtains the prior written consent from Landlord
in each instance; and
(ii) Tenant, in every instance, complies with the terms and
conditions of SECTION 11.3 below.
11.2. CONSENT TO ALTERATIONS. Landlord's consent to Alterations, when
required, shall not be unreasonably withheld, conditioned or delayed, provided
that: (a) the Alterations are non-structural and the structural integrity of the
Premises shall not be affected; (b) the proper functioning of the mechanical,
electrical, heating, ventilating, air-conditioning ("HVAC"), sanitary and other
service systems of the Premises shall not be affected and the usage of such
systems by Tenant shall not be increased; (c) Tenant shall have appropriate
insurance coverage, reasonably satisfactory to Landlord, regarding the
performance and installation of the Alterations; and (d) Tenant shall have
provided Landlord with reasonably detailed plans for such Alterations in advance
of requesting Landlord's consent. With respect to any structural Alterations
approved by Landlord, Tenant may request that Landlord finance the cost of such
Alterations upon terms and conditions acceptable to Landlord in its sole but
reasonable discretion (including, without limitation, an increase in Base Rent
to reflect such financing).
11.3. OTHER REQUIREMENTS. Before proceeding with any Alterations,
Tenant shall (i) at Tenant's expense, obtain all necessary governmental permits
and certificates for the commencement and prosecution of Alterations; (ii) if
Landlord's consent is required for the planned Alteration, submit to Landlord,
for its written approval, working drawings, plans and specifications and all
permits for the work to be done and Tenant shall not proceed with such
Alterations until it has received Landlord's approval (if required); and (iii)
cause those contractors, materialmen and suppliers engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a form
reasonably acceptable to Landlord) evidencing policies of builders risk,
commercial general liability insurance (providing the same coverages as required
in SECTION 10 above) and workers' compensation insurance. Such insurance
policies shall satisfy the obligations imposed under SECTION 10. Tenant shall
cause the Alterations to be performed in compliance with all applicable permits,
Laws and requirements of public authorities, and with Landlord's reasonable
rules and regulations or any other restrictions that Landlord may impose on the
Alterations. Tenant shall cause the Alterations to be diligently performed in a
good and workmanlike manner, using materials and equipment at least equal in
quality and class to the standards for the Premises established by Landlord.
Tenant 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. If Landlord's consent to any Alterations is required, and
Landlord provides that consent, then at the time Landlord so consents, Landlord
shall also advise Tenant whether or not Landlord shall require that Tenant
remove such Alterations at the expiration or termination of this Lease. If
Landlord requires Tenant to remove the Alterations, then, during the remainder
of the Term, Tenant shall be responsible for the maintenance of appropriate
commercial property insurance (pursuant to SECTION 10) therefor; however, if
Landlord shall not require that Tenant remove the Alterations, such Alterations
shall constitute Landlord's Property. The parties do not intend that the making
of Alterations shall: (A) constitute income to Landlord; or (B) result in some
or all of the federal, state or municipal income tax deductions which Landlord
would otherwise be permitted to report with respect to the Premises or this
Lease being deferred or denied; or (C) cause this Lease not to be a true lease
for federal income tax purposes. Notwithstanding anything herein to the
contrary, Landlord reserves the right to withhold its consent to any proposed
Alteration (or the financing of any such improvement) if Landlord concludes that
the making or financing or such improvements would result in some or all of
federal, state or municipal income tax deductions which Landlord would otherwise
be permitted to report with respect to the Premises or this Lease being deferred
or denied or cause this Lease not to be a true lease for federal income tax
purposes.
10
12. LANDLORD'S AND TENANT'S PREMISES. All fixtures, machinery, equipment
(but excluding the list of Tenant's equipment and other property attached hereto
as EXHIBIT F), 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 requires their removal (including, but not
limited to, Alterations pursuant to SECTION 11) by notifying Tenant, in writing,
or before the Expiration Date or earlier termination date of this Lease.
Further, any personal property in the Premises on the Commencement Date, movable
or otherwise, unless installed and paid for by Tenant, shall also constitute
Landlord's Property 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 (which consent may be given or withheld in Landlord's sole
discretion): 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 Buildings operating equipment and decorations. At or before the
Expiration Date, or the date of any earlier termination, Tenant, at its expense,
shall remove from the Premises all of Tenant's personal property and any
Alterations that Landlord requires be removed pursuant to SECTION 11 (including,
without limitation the personal property listed on EXHIBIT C and that listed on
EXHIBIT F), and Tenant shall repair (to Landlord's reasonable satisfaction) any
damage to the Premises resulting from such installation and/or removal. Any
other items of Tenant's personal property that shall remain in the Premises
after the Expiration Date, or following an earlier termination date, may, at the
option of Landlord, be deemed to have been abandoned, and in such case, such
items may be retained by Landlord as its property or be disposed of by Landlord,
in Landlord's sole and absolute discretion and without accountability, at
Tenant's expense. Notwithstanding the foregoing, if Tenant is in default under
the terms of this Lease, Tenant may remove Tenant's personal property from the
Premises only upon the express written direction of Landlord.
13. REPAIRS AND MAINTENANCE. Tenant acknowledges that, with full awareness
of its obligations under this Lease, Tenant has accepted the condition, state of
repair and appearance of the Premises. Except for events of damage, destruction
or casualty to the Premises (to the extent addressed in SECTION 18 below),
Tenant agrees that, at its sole expense, it shall put, keep and maintain the
Premises, including any Alterations and any altered, rebuilt, additional or
substituted Buildings, structures and other improvements thereto or thereon, in
the same condition that exists on the Commencement Date (reasonable wear and
tear excepted), and in a safe condition, repair and appearance (collectively,
the "REQUIRED CONDITION") and shall make all repairs and replacements necessary
therefor. Without limiting the foregoing, Tenant shall promptly make all
structural and nonstructural, foreseen and unforeseen, ordinary and
extraordinary changes, replacements and repairs of every kind and nature
(including, without limitation, to the roof structure and roof covering,
sidewalks, driveways, curbs, loading areas, landscaped areas and parking lot,
and the electrical, mechanical, HVAC, and plumbing systems), and correct any
patent or latent defects in the Premises, which may be required to put, keep and
maintain the Premises in the Required Condition. Tenant will keep the Premises
orderly and free and clear of rubbish. Tenant covenants to perform or observe
all terms, covenants and conditions of any easement, restriction, covenant,
declaration or maintenance agreement (collectively, "EASEMENTS") to which the
Premises are currently subject or become subject pursuant to this Lease, whether
or not such performance is required of Landlord under such Easements, including,
without limitation, payment of all amounts due from Landlord or Tenant (whether
as assessments, service fees or other charges) under such Easements. Tenant
shall deliver to Landlord promptly, but in no event later than five (5) business
days after receipt thereof, copies of all written notices received from any
party thereto regarding the non-compliance of the Premises or Landlord's or
Tenant's performance of obligations under any Easements. Tenant shall, at its
expenses, use reasonable efforts to enforce compliance with any Easements
benefiting the Premises by any other person or entity or property subject to
such Easement. Landlord shall not be required to maintain, repair or rebuild, or
to make any alterations, replacements or renewals of any nature to the Premises,
or any part thereof, whether ordinary or extraordinary, structural or
nonstructural, foreseen or not foreseen, or to maintain the Premises or any part
thereof in any way or to correct any patent or latent defect therein. Tenant
hereby expressly waives any right to make repairs at the expense of Landlord
which may be provided for in any Law in effect at the Commencement Date or that
may thereafter be enacted. If Tenant shall vacate or abandon the Premises, it
shall give Landlord immediate written notice thereof.
14. UTILITIES. Tenant shall purchase all utility services and shall provide
for garbage, cleaning and extermination services. Tenant shall pay the utility
charges for the Premises directly to the utility or municipality providing such
service, all charges shall be paid by Tenant before they become delinquent.
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
(x) any of the electrical conductors and equipment in or otherwise servicing the
Premises; and (y) the HVAC systems of the Premises.
15. INVOLUNTARY CESSATION OF SERVICES. If and to the extent Landlord
directly provides any such services to Tenant, Landlord reserves the right,
without any liability to Tenant and without affecting Tenant's covenants and
obligations hereunder, to stop service of any or all of the HVAC, electric,
sanitary, elevator (if any), and other systems serving the
11
Premises, or to stop any other services provided by Landlord under this Lease,
whenever and for so long as may be necessary by reason of (i) accidents,
emergencies, strikes, or (ii) 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 any services to the
Premises that occurs as a result of causes beyond Landlord's or Agent's
reasonable control. No such interruption of any 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.
16. LANDLORD'S RIGHTS. Upon reasonable prior notice to Tenant (which may be
delivered telephonically) and as long as Landlord does not unreasonably
interfere with Tenant's operations, 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 (except in the event of emergency for which no
reasonable prior notice is required) to examine and inspect the Premises and to
show them to actual and prospective lenders, prospective purchasers or
mortgagees of the Premises or providers of capital to Landlord and its
affiliates; and in connection with the foregoing, to install a sign at or on the
Premises to advertise the Premises for lease or sale; during the period of six
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. Additionally,
Landlord and Agent shall have the following rights with respect to the Premises,
exercisable without notice to Tenant, 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 reoccupancy at any
time after Tenant vacates or abandons the Premises for more than 30 consecutive
days or without notice to Landlord of Tenant's intention to reoccupy the
Premises.
17. NON-LIABILITY AND INDEMNIFICATION.
17.1. NON-LIABILITY. Except to the extent directly caused by the
willful misconduct or gross negligence of Landlord or Agent, 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 directly caused by the willful misconduct or gross
negligence of Landlord or Agent, none of Landlord, Agent, any other managing
agent, or their respective affiliates, owners, partners, directors, officers,
agents and employees shall be liable to Tenant (a) for any damage caused by
other persons in, upon or about the Premises, 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) for any
defect in the Premises; (d) for 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
Premises, or from the pipes, appliances or plumbing work of the same.
17.2. TENANT INDEMNIFICATION. Except for the Landlord's gross
negligence, sole negligence or willful misconduct, Tenant hereby indemnifies,
defends, and holds Landlord, Agent and their respective affiliates, owners,
partners, members, directors, officers, agents and employees (collectively,
"LANDLORD INDEMNIFIED PARTIES") harmless from and against any and all Losses
(defined below) arising from or in connection with any or all of: (a) the
ownership of the Premises by Landlord; (b) the conduct or management of the
Premises or any business therein, or any work or Alterations done, or any
condition created by any or all of Tenant and Tenant's Parties in or about the
Premises during the Term or during the period of time, if any, prior to the
Commencement Date that Tenant is given access to the Premises; (c) any act,
omission or negligence of any or all of Tenant and Tenant's Parties; (d) any
accident, injury or damage whatsoever occurring in, at or upon the Premises and
caused by any or all of Tenant and Tenant's Parties; (e) any breach by Tenant of
any or all of its warranties, representations and covenants under this Lease;
(f) any actions necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding or other proceeding under the Bankruptcy Code relating to
this Lease or Tenant; (g) the creation or existence of any Hazardous Materials
in, at, on or under the Premises, if and to the extent brought to the Premises
or caused by Tenant or any party within Tenant's control; and (h) any violation
or alleged violation by any or all of Tenant and Tenant's Parties of any Law
(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 "LOSSES" shall mean all claims, demands,
expenses, actions, judgments, damages (actual, but not consequential),
penalties, fines, liabilities, losses of every kind and nature, suits,
administrative proceedings, costs and fees, including, without limitation,
attorneys' and consultants' reasonable
12
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. The provisions of this SECTION 17.2 shall survive the expiration or
termination of this Lease.
18. CASUALTY AND CONDEMNATION.
18.1. CASUALTY. If the Building and/or other improvements on the Premises
shall be damaged or destroyed by fire or other casualty (each, a "CASUALTY"),
Tenant, at Tenant's sole cost and expense, shall promptly and diligently repair,
rebuild or replace such Building and other improvements, so as to restore the
Premises to the condition in which they were immediately prior to such damage or
destruction, irrespective of whether any insurance proceeds are adequate or
available to repair, rebuild or replace such Building. The net proceeds of any
insurance (other than rent insurance) recovered by reason of such damage to or
such destruction of the Building and/or other improvements on the Premises in
excess of the cost of adjusting the insurance claim and collecting the insurance
proceeds (such excess being hereinafter called the "NET INSURANCE PROCEEDS")
shall be held in trust by Landlord or held by any holder of an interest in the
Premises which may be superior to Tenant's interest under this Lease (a
"HOLDER") and released for the purpose of paying the fair and reasonable cost of
restoring such Building and other improvements. Such net insurance proceeds
shall be released from time to time as the work progresses to Tenant or to
Tenant's contractors. Prior to the commencement of the work, Tenant shall
deliver to Landlord reasonable proof that such net insurance proceeds are
adequate to pay the cost of such restoration. If such net insurance proceeds are
not adequate, Tenant shall pay, out of funds other than such net insurance
proceeds, the amount by which such cost will exceed such net insurance proceeds
and shall furnish proof to Landlord of the payment of such excess for work
performed, before Landlord or any such Holder shall release any part of such net
insurance proceeds. If such net insurance proceeds are more than adequate, the
amount by which such net insurance proceeds exceed the cost of restoration will
be retained by Landlord or applied to repayment of any mortgage loan. If a
Holder shall decline to make the net insurance proceeds available for the
restoration provided herein and Landlord does not elect to substitute other
funds for such insurance proceeds, Landlord shall have the right to terminate
this Lease unless Tenant pays Landlord, within thirty (30) days after written
notice from Landlord to Tenant, an amount sufficient to fully complete such
restoration (as reasonably calculated by Landlord).
18.2. CONDEMNATION.
18.2.1. CONDEMNATION OF ENTIRE PREMISES. If all or substantially of
the Premises is taken or condemned for a public or quasi-public use
("CONDEMNATION"), the provisions of SECTION 18.3 shall apply.
18.2.2. PARTIAL CONDEMNATION. If less than all or substantially all of
the Premises is subject to a Condemnation, Tenant shall restore the Building and
other improvements upon the Premises to a condition and size as nearly
comparable as reasonably possible to the condition and size thereof immediately
prior to the Condemnation, and there shall be an equitable abatement of the
minimum rent according to the value of the Premises before and after the
Condemnation. In the event that the parties are unable to agree upon the amount
of such abatement, either party may submit the issue for arbitration pursuant to
the rules then obtaining of the American Arbitration Association and the
determination or award rendered by the arbitrator/s/ shall be final, conclusive
and binding upon the parties and not subject to appeal, and judgment thereon may
be entered in any court of competent jurisdiction.
18.2.3. AWARD. Tenant shall have the right to make a claim against the
condemnor for moving and related expenses which are payable to tenants under
applicable law without reducing the awards otherwise payable to Landlord and the
Holders. Except as aforesaid, Tenant hereby waives all claims against Landlord
and all claims against the condemnor, and Tenant hereby assigns to Landlord all
claims against the condemnor including, without limitation, all claims for
leasehold damages and diminution in the value of Tenant's leasehold interest. If
only part of the Premises is Condemned, the net proceeds of any Condemnation
award recovered by reason of any taking or Condemnation of the Premises in
excess of the cost of collecting the award and in excess of any portion thereof
attributable to the then-current market value of the land taken or Condemned
(such excess being hereinafter called the "NET CONDEMNATION PROCEEDS") shall be
held in trust by Landlord or any Holder and released for the purpose of paying
the fair and reasonable cost of restoring the Building or Buildings and other
improvements damaged by reason of the taking or Condemnation. Such net
Condemnation proceeds shall be released from time to time as the work progresses
to Tenant or to Tenant's contractors. Prior to the commencement of the work,
Tenant shall deliver to Landlord reasonable proof that such net condemnation
proceeds are adequate to pay the cost of such restoration. If such net
condemnation proceeds are not adequate, Tenant shall pay, out of funds other
than such net condemnation proceeds, the amount by which such cost will exceed
such net condemnation proceeds and shall furnish proof to Landlord of the
payment of such excess for work performed before Landlord or any such Holder
shall release any part of such net condemnation proceeds. If such net
condemnation proceeds are more than adequate, the amount by which such net
condemnation proceeds exceed the cost of restoration will be retained by
Landlord or applied to repayment of any Mortgage Loan secured by the Premises.
In the event that the parties are unable to agree upon the portion of the award
attributable to the then-current
13
market value of the land taken or Condemned, either party may submit the issue
for arbitration pursuant to the rules then obtaining of the American Arbitration
Association and the determination or award rendered by the arbitrator(s) shall
be final, conclusive and binding upon the parties and not subject to appeal, and
judgment thereon may be entered in any court of competent jurisdiction.
18.2.4. TEMPORARY TAKING. If the condemnor should take only the right
to possession for a fixed period of time or for the duration of an emergency or
other temporary condition (a "TEMPORARY TAKING"), then, notwithstanding anything
hereinabove provided, this Lease shall continue in full force and effect without
any abatement of rent, but the amounts payable by the condemnor with respect to
any period of time prior to the expiration or sooner termination of this Lease
shall be paid by the condemnor to Landlord and the condemnor shall be considered
a subtenant of Tenant. If the amounts payable hereunder by the condemnor are
paid in monthly installments, Landlord shall apply the amount of such
installments, or as much thereof as may be necessary for the purpose, toward the
amount of rent due from Tenant as rent for that period, and Tenant shall pay to
Landlord any deficiency between the monthly amount thus paid by the condemnor
and the amount of the rent, while Landlord shall pay over to Tenant any excess
of the amount of the award over the amount of the rent.
18.3. TERMINATION OF LEASE FOLLOWING MAJOR CASUALTY OF MAJOR CONDEMNATION.
18.3.1. If a (1) Casualty, (2) Condemnation, or (3) Material Temporary
Taking shall affect all or A substantial portion of the Premises, and:
18.3.1.1. in the case of a Casualty, such Casualty shall be deemed a
"total loss" for insurance purposes or shall be determined to be a loss of such
dimension that the Premises cannot be completely restored or rebuilt within two
hundred seventy (270) days computed after the hypothetical date of commencement
of such construction (a "MAJOR CASUALTY"); or
18.3.1.2. in the case of a Condemnation (other than a Temporary
Taking), such Condemnation shall, in Tenant's and Landlord's reasonable
judgment, render the Premises unsuitable for restoration for continued use and
occupancy of Tenant's business;
then Tenant may, at its option, exercisable not later than sixty (60) days after
the date of such Major Casualty or Condenmation, deliver to Landlord each of the
following: (A) notice (a "TERMINATION NOTICE") of its intention to terminate
this Lease on the next rental payment date that occurs not less than ninety (90)
days after the delivery of such notice (the "TERMINATION DATE"); (B) in the case
of a Condemnation, a certificate of an authorized officer of Tenant describing
the event giving rise to such termination; (C) in the case of a Major Casualty,
(x) the certificate of an architect licensed in the state in which the Premises
is located stating that the architect has determined, in its good faith
judgment, that the Premises cannot be completely restored or rebuilt for
continued use and occupancy in Tenant's business within a building construction
period of two hundred seventy (270) days computed from the hypothetical date of
commencement of such construction or (y) written confirmation from the issuer of
the applicable insurance policy that it will treat the damage to the Building or
Buildings as a "total loss"; and (D) an irrevocable offer (a "EVENT OF LOSS
PURCHASE OFFER") by Tenant to Landlord to purchase the Premises on the
Termination Date.
If Landlord shall reject the Event of Loss Purchase Offer by written notice
given to Tenant not later than fifteen (15) days prior to the Termination Date,
this Lease shall terminate on the Termination Date, except with respect to
obligations and liabilities of Tenant or Landlord hereunder, actual or
contingent, which have arisen on or prior to the Termination Date, upon payment
by Tenant of all of the Base Rent, Additional Rent and other sums then due and
payable or accrued hereunder to and including the Termination Date, and the net
condemnation proceeds or net insurance proceeds (as the case may be) shall
belong to Landlord. Tenant shall, on or before the Termination Date, execute and
deliver to Landlord an outright assignment of such proceeds in form and
substance reasonably acceptable to Landlord and pay to Landlord an amount equal
to any applicable insurance deductible or self-insurance amounts. Unless
Landlord shall have rejected the Event of Loss Purchase Offer in accordance with
this SECTION 18.3.1, Landlord shall be conclusively considered to have accepted
the Event of Loss Purchase Offer. In the event Landlord accepts (or is deemed to
have accepted) the Event of Loss Purchase Offer, then, on the Termination Date
(1) Tenant shall pay to Landlord a purchase price determined pursuant to EXHIBIT
E attached hereto, (2) Landlord shall convey to Tenant or its designee the
Premises, and (3) Landlord shall assign to Tenant or its designee all of
Landlord's interest in the net condemnation proceeds or net insurance proceeds
(as the case may be), by assignment in form and substance reasonably acceptable
to Tenant or, if Landlord has already received all or a portion of such net
condemnation proceeds or net insurance proceeds (as the case may be), then
Landlord shall pay the same to Tenant or Tenant's designee after deducting
Landlord's costs payable by Tenant hereunder. Such sale shall otherwise be
consummated in accordance with the terms set forth in SECTION 18.3.2 below. In
the event Tenant fails to deliver the Termination Notice and the Event of Loss
Purchase Offer in accordance with the time deadlines set forth in this SECTION
18.3, then, at Landlord's election, Tenant shall
14
have no right to terminate this Lease or right to make an offer to purchase the
Premises, and the Lease will continue in full force and effect.
18.3.2. CLOSING/CONVEYANCE PROCEDURES. In the event, pursuant to the
terms and conditions of SECTION 18.3.1 above, Landlord is to convey its interest
in the Premises to Tenant as a result of an Event of Loss Purchase Offer, the
following provisions shall apply:
18.3.2.1. The purchase of the Premises contemplated herein shall
be consummated at a closing ("LOSS CLOSING") to take place at the offices of
Landlord or Landlord's counsel. The Loss Closing shall occur on the date (the
"LOSS CLOSING DATE") which is no later than sixty (60) days after Landlord's
receipt of a timely Exercise Notice or such other date as the parties shall
mutually agree in writing. The Loss Closing shall be effective as of 11:59 p.m.
on the Loss Closing Date. Time is of the essence.
18.3.2.2. The total purchase price to be paid to Landlord by
Tenant at the Loss Closing for the sale hereunder shall be an amount equal to
the applicable purchase price set forth on EXHIBIT D attached hereto. In the
event of a Loss Closing hereunder, Tenant shall not have the right to escrow or
hold back any portion of the purchase price hereunder. The purchase price shall
be paid to Landlord at the Loss Closing, by federal wire transfer of immediately
available funds.
18.3.2.3. At the Loss Closing, Landlord shall convey fee simple
title to the Premises to Tenant (or its assignee or designee) pursuant to a
quitclaim deed, subject to (a) Taxes; (b) those matters and exceptions shown in
Landlord's existing owner's policy of title insurance dated ______, 2006, issued
by First American Title Insurance Company (File No. NCS-207043) and the survey
prepared by Xxxxxxx Surveying Inc. dated January 9, 2006 as Project Number MSI
Site 7340; (c) those matters that may be otherwise specifically approved, in
writing, by Tenant or otherwise deemed approved or accepted by Tenant, or that
otherwise result from the construction of any improvements or Alterations by
Tenant; (d) matters arising out of any act of Tenant or any or all of its
affiliates, representatives, lenders, agents, contractors, employees or
invitees; and (e) any lien, claim or encumbrance or other matter, except liens,
claims, adverse encumbrances directly caused by any act of Landlord or its
affiliates, representatives, lenders, agents, contractors or employees.
18.3.2.4. The sale of the Premises as provided for herein shall
be made on a strictly "AS IS," "WHERE-IS" basis as of the Loss Closing Date,
without any representations or warranties, of any nature whatsoever from
Landlord. Landlord hereby specifically disclaims any warranty (oral or written)
concerning: (i) the nature and condition of the Premises and the suitability
thereof for any and all activities and uses that Tenant may elect to conduct
thereon, (ii) the manner, construction, condition and state of repair or lack of
repair of any improvements located thereon, (iii) the nature and extent of any
right-of-way, lien, encumbrance, license, reservation, condition or otherwise,
(iv) the compliance of the Premises or its operation with any laws, rules,
ordinances, or regulations of any government or other body; and (v) any other
matter whatsoever. Tenant expressly acknowledges that, in consideration of the
agreements of Landlord herein, LANDLORD MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PREMISES, ANY
IMPROVEMENTS LOCATED THEREON, OR ANY SOIL CONDITIONS RELATED THERETO. TENANT
SPECIFICALLY ACKNOWLEDGES THAT TENANT IS NOT RELYING ON (AND LANDLORD HEREBY
DISCLAIMS AND RENOUNCES) ANY REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF
OF LANDLORD OF ANY KIND OR NATURE WHATSOEVER.
18.3.2.5. If Tenant fails to timely perform or satisfy any of its
obligations imposed under this SECTION 18.3, including its obligation to timely
close on the purchase of the Premises, then such failure shall constitute a
default by Tenant under this Lease (for which there is no cure period), and
Landlord shall have all rights and remedies available to it under this Lease, at
law or in equity (including, without limitation the right to file an action to
specifically enforce the terms of this SECTION 18.3), with respect to such
default.
18.3.2.6. Upon the purchase of the Premises pursuant to SECTION
18.3.1 above, this Lease shall terminate except for provisions under this Lease
that by their terms specifically survive.
18.3.2.7. Landlord and Tenant each hereby indemnify, protect and
defend and hold the other harmless from and against all losses, claims, costs,
expenses, damages (including, but not limited to, reasonable fees of counsel
selected by the indemnified party) resulting from the claims of any broker,
finder, or other such party claiming by, through or under
15
the acts or agreements of the indemnifying party. The obligations of the parties
pursuant to this SECTION 18.3 shall survive any termination of this Lease.
18.3.2.8. There shall be no prorations of any cost items relating
to the Premises, whether Taxes, Operating Expenses or otherwise; provided,
however, that if and to the extent that, as of the Loss Closing, Landlord has
paid any bills for any ownership expenses incurred (prior to Closing) in
connection with the ownership and operation of the Premises and, under the terms
of this Lease, Tenant would be required to reimburse Landlord for some or all of
such expenses, then at Closing, Tenant shall be required to pay to Landlord, in
addition to the purchase price set forth above, any such accrued Operating
Expenses (including, but not limited to, Taxes) for which Tenant is responsible
under this Lease.
18.3.2.9. Provided the Loss Closing is consummated in accordance
with this SECTION 18.3, Tenant shall pay for all closing costs, including, but
not limited to, the cost to record the deed, any transfer taxes, any closing
escrow fees, the costs of any title insurance policy and the cost of the survey.
Tenant shall be solely responsible for procuring the title insurance policy and
the survey and in no event shall the procurement of those items be a condition
precedent to Tenant's obligation to acquire the Premises. All other costs shall
be paid in accordance with local custom. Each of Landlord and Tenant shall be
responsible for their respective attorneys' fees.
19. SURRENDER AND HOLDOVER. 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" (as defined by EXHIBIT C, attached hereto and incorporated herein
by reference), and in a condition that would reasonably be expected with normal
and customary use in accordance with prudent operating practices and in
accordance with the covenants and requirements imposed under this Lease, subject
only to ordinary wear and tear (as is attributable to deterioration by reason of
time and use, in spite of Tenant's reasonable care) and such damage or
destruction as Landlord is required to repair or restore under this Lease; (b)
Tenant shall remove all of Tenant's personal property therefrom, except as
otherwise expressly provided in this Lease, and (c) Tenant shall surrender to
Landlord any and all keys, access cards, computer codes or any other items used
to access the Premises. Upon prior notice (which may be delivered
telephonically), Landlord shall be permitted to inspect the Premises in order to
verify compliance with this SECTION 19 at any time prior to (x) the Expiration
Date, (y) the effective date of any earlier termination of this Lease, or (z)
the surrender date otherwise agreed to in writing by Landlord and Tenant. The
obligations imposed under the first sentence of this SECTION 19 shall survive
the termination or expiration of this Lease. 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: (i) Tenant shall be deemed a
tenant-at-will; (ii) Tenant shall pay 150% of the aggregate of all Rent last
prevailing hereunder, and also shall pay all actual damages sustained by
Landlord, directly by reason of Tenant's remaining in possession after the
expiration or termination of this Lease; (iii) there shall be no renewal or
extension of this Lease by operation of law; and (iv) the tenancy-at-will may be
terminated by either party hereto upon 30 days' prior written notice given by
the terminating party to the non-terminating party. The provisions of this
SECTION 19 shall not constitute a waiver by Landlord of any re-entry rights of
Landlord provided hereunder or by law.
20. EVENTS OF DEFAULT.
20.1. BANKRUPTCY OF TENANT. It shall be a default by Tenant under this
Lease ("DEFAULT" or "EVENT OF DEFAULT") if Tenant makes an assignment for the
benefit of creditors, or files a voluntary petition under any state or federal
bankruptcy (including the United States Bankruptcy Code) or insolvency law, or
an involuntary petition is filed against Tenant under any state or federal
bankruptcy (including the United States Bankruptcy Code) or insolvency law that
is not dismissed within 90 days after filing, 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.
20.2. DEFAULT PROVISIONS. In addition to any Default arising under
SECTION 20.1 above, each of the following shall constitute a Default: (a) if
Tenant fails to pay Rent or any other payment when due hereunder within five (5)
days after written notice from Landlord of such failure to pay on the due date;
provided, however, that if in any consecutive 12 month period, Tenant shall, on
two (2) separate occasions, fail to pay any installment of Rent on the date such
installment of Rent is due, then, on the third such occasion and on each
occasion thereafter on which Tenant shall fail to pay an installment of Rent on
the date such installment of Rent is due, Landlord shall be relieved from any
obligation to provide notice to Tenant, and Tenant shall then no longer have a
five day period in which to cure any such failure; (b) if Tenant fails, whether
by action or inaction, to timely comply with, or satisfy, any or all of the
obligations imposed on Tenant under this Lease (other than the obligation to pay
Rent) for a period of 30 days after Landlord's delivery to Tenant of written
notice of such default under this SECTION 20.2(B); provided, however, that if
the default cannot, by its nature, be cured within such 30 day period, but
Tenant commences and diligently pursues a cure of such default promptly within
the initial 30 day cure period, then, as long as Tenant continues to diligently
pursue such a cure, Landlord shall not
16
exercise its remedies under SECTION 21 unless such default remains uncured for
more than 120 days after the initial delivery of Landlord's original default
notice; and, at Landlord's election, (c) if Tenant vacates or abandons the
Premises during the Term for more than 45 consecutive days.
21. RIGHTS AND REMEDIES.
21.1. LANDLORD'S CURE RIGHTS UPON DEFAULT OF TENANT. If a Default
occurs, then Landlord may (but shall not be obligated to) cure or remedy the
Default for the account of, and at the expense of, Tenant, but without waiving
such Default.
21.2. LANDLORD'S REMEDIES. In the event of any Default by Tenant under
this Lease, Landlord, at its option, may, in addition to any and all other
rights and remedies provided in this Lease or otherwise at law or in equity do
or perform any or all of the following:
21.2.1. Terminate Tenant's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession to Landlord. In such event, Landlord shall be
entitled to recover from Tenant all of: (i) the unpaid Rent that is accrued and
unpaid as of the date on which this Lease is terminated; (ii) the worth, at the
time of award, of the amount by which (x) the unpaid Rent that would otherwise
be due and payable under this Lease (had this Lease not been terminated) for the
period of time from the date on which this Lease is terminated through the
Expiration Date exceeds (y) the amount of such rental loss that the Tenant
proves could have been reasonably avoided; and (iii) any other amount necessary
to compensate Landlord for all the detriment proximately caused by the Tenant's
failure to perform its obligations under this Lease or which, in the ordinary
course of events, would be likely to result therefrom, including but not limited
to, the cost of recovering possession of the Premises, expenses of reletting,
including renovation and alteration of the Premises, reasonable attorneys' fees,
and that portion of any leasing commission paid by Landlord in connection with
this Lease applicable to the unexpired Term (as of the date on which this Lease
is terminated). The worth, at the time of award, of the amount referred to in
provision (ii) of the immediately preceding sentence shall be computed by
discounting such amount at the per annum discount rate of the Federal Reserve
Bank of the District within which the Premises are located at the time of award,
plus one percent per annum. Efforts by Landlord to mitigate damages caused by
Tenant's Default shall not waive Landlord's right to recover damages under this
SECTION 21.2. If this Lease is terminated through any unlawful entry and
detainer action, Landlord shall have the right to recover in such proceeding any
unpaid Rent and damages as are recoverable in such action, or Landlord may
reserve the right to recover all or any part of such Rent and damages in a
separate suit; or
21.2.2. Continue the Lease and Tenant's right to possession and
recover the Rent as it becomes due. Acts of maintenance, efforts to relet,
and/or the appointment of a receiver to protect the Landlord's interests shall
not constitute a termination of the Tenant's right to possession; or
21.2.3. Pursue any other remedy now or hereafter available under
the laws of the state in which the Premises are located.
21.2.4. Without limitation of any of Landlord's rights in the
event of a Default by Tenant, Landlord may also exercise its rights and remedies
with respect to any security held or maintained by Landlord.
Any and all personal property of Tenant that may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law may be handled,
removed or stored by Landlord at the sole risk, cost and expense of Tenant, and
in no event or circumstance shall Landlord be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay to Landlord, upon demand,
any and all expenses incurred in such removal and all storage charges for such
property of Tenant so long as the same shall be in Landlord's possession or
under Landlord's control. Any such property of Tenant not removed from the
Premises as of the Expiration Date or any other earlier date on which this Lease
is terminated shall be conclusively presumed to have been conveyed by Tenant to
Landlord under this Lease as in a xxxx of sale, without further payment or
credit by Landlord to Tenant. Neither expiration or termination of this Lease
nor the termination of Tenant's right to possession shall relieve Tenant from
its liability under the indemnity provisions of this Lease.
21.3. ADDITIONAL RIGHTS OF LANDLORD. 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 5% per annum above the "prime" or "reference" or "base"
rate (on a per annum basis) of interest publicly announced as such, from time to
time, by the JPMorgan Chase
17
Bank, or its successor ("DEFAULT INTEREST"), 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 pursuant to Bankruptcy Code Section 365 will include (but
not be limited to) payment of an additional/new security deposit in the amount
of three times the then current 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, and 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 amounts 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.
22. BROKER. Tenant covenants, warrants and represents that no brokers
represented Tenant in the negotiation of this Lease. Landlord covenants,
warrants and represents that no brokers represented Landlord in the negotiation
of this Lease. Each party agrees to and hereby does defend, indemnify and hold
the other harmless against and from any brokerage commissions or finder's fees
or claims therefor by a party claiming to have dealt with the indemnifying party
and all costs, expenses and liabilities in connection therewith, including,
without limitation, reasonable attorneys' fees and expenses, for any breach of
the foregoing. The foregoing indemnification shall survive the termination or
expiration of this Lease.
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 each party's
respective signature block (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.
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. ADVANCES BY LANDLORD. If Tenant shall fail to make or perform
any payment or act required by this Lease within any applicable cure period,
then Landlord may at its option make such payment or perform such act for the
account of Tenant, and Landlord shall not thereby be deemed to have waived any
default or released Tenant from any obligation hereunder. Landlord shall give
Tenant five (5) days notice (except in the case of an emergency) prior to
Landlord making such payment or protective advance. All amounts so paid by
Landlord and all incidental costs and expenses (including reasonable attorneys'
fees and expenses) actually incurred in connection with such payment or
performance, together with interest at the annual rate equal to the greater of
(i)
18
twelve percent (12%) and (ii) three percent (3%) above the prime rate as
announced from time to time in New York City by Citibank, N.A. (or at the
highest rate not prohibited by applicable law, whichever is less) from and
including the date of the making of such payment or of the incurring of such
costs and expenses to and including the date of repayment, shall be paid by
Tenant to Landlord on demand.
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 Premises. 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
(or any memorandum hereof) in the public records of any county or state.
23.7. GOVERNING LAW; CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Premises 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 Lease 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 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.
23.8. TIME. Time is of the essence for 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 Premises is located, then such time shall be
deemed extended to the next day that is not a Saturday, Sunday or holiday in
said state.
23.9. AUTHORITY OF TENANT. Tenant and the person(s) executing this
Lease on behalf of Tenant hereby represent, warrant, and covenant with and to
Landlord as follows: the individual(s) acting as signatory on behalf of Tenant
is(are) duly authorized to execute this Lease; Tenant has procured (whether from
its members, partners or board of directors, as the case may be), the requisite
authority to enter into this Lease; this Lease is and shall be fully and
completely binding upon Tenant; and Tenant shall timely and completely perform
all of its obligations hereunder.
23.10. 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.
23.11. FINANCIAL INFORMATION. From time to time during the Term,
Tenant shall deliver to Landlord information and documentation describing and
concerning Tenant's financial condition, and in form and substance reasonably
acceptable to Landlord, within ten (10) days following Landlord's written
request therefor. Upon Landlord's request, Tenant shall provide to Landlord the
most currently available audited financial statement of Tenant; and if no such
audited financial statement is available, then Tenant shall instead deliver to
Landlord its most currently available balance sheet, operating statement, income
statement and statements of cash flow and equity. Furthermore, upon the delivery
of any such financial information from time to time during the Term, Tenant
shall be deemed to automatically represent and warrant to Landlord that the
financial information delivered to Landlord is true, accurate and complete, and
that there has been no adverse change in the financial condition of Tenant since
the date of the then-applicable financial information.
23.12. CONFIDENTIAL INFORMATION. Tenant agrees to maintain in strict
confidence the economic terms of this Lease and any or all other materials, data
and information delivered to or received by any or all of Tenant and Tenants'
Parties either prior to or during the Term in connection with the negotiation
and execution hereof, provided however, Landlord acknowledges that Guarantor
files reports with the Securities and Exchange Commission and that Guarantor may
disclose information relating to this Lease in such reports but only to the
extent Guarantor believes in good faith that such disclosure is required in
order to satisfy its
19
disclosure obligations with respect to such filings. With respect to any of
Tenant's non-public business or financial information, Landlord agrees to
maintain such information in confidence and not disclose such information to any
third party whatsoever, provided, however, that, notwithstanding the foregoing,
Landlord may disclose such information (a) to Landlord's employees, agents,
officers, directors, representatives, brokers, third party consultants,
engineers, lenders, accountants and attorneys (collectively, "LANDLORD'S
REPRESENTATIVES") to the extent that such Landlord's Representatives reasonably
need to know such information in order to assist, and perform services on behalf
of, Landlord or evaluate the transactions contemplated by this Lease; (b) to the
extent required by any applicable statute, law, regulation, governmental or
judicial authority; and (c) in connection with any litigation that may arise
between the parties in connection with the transactions contemplated by this
Lease. The provisions of this SECTION 23.12 shall survive the termination of
this Lease.
23.13. 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.
23.14. COUNTERPARTS. This Lease may be executed in multiple
counterparts, but all such counterparts shall together constitute a single,
complete and fully-executed document.
23.15. SECURITY CLEARANCE. Landlord recognizes that certain of
Tenant's operations on the Premises involve governmental contracts which are
classified in nature and that access to certain portions of the Building (the
"DESIGNATED AREAS") may be restricted to persons with the required security
clearances issued pursuant to applicable governmental regulations. Tenant agrees
that it shall identify and notify Landlord of such Designated Areas. Landlord
agrees that, notwithstanding Landlord's rights of access to the Building set
forth in this Lease, (a) neither Landlord nor its agents shall enter upon such
Designated Areas, except in the event of an emergency (and in such event of
emergency, Landlord shall use reasonable efforts to provide Tenant with prior
notice of such entry) and (b) at all times that Landlord or its agents are
present in the Building, they shall observe Tenant's rules and regulations for
complying with such applicable governmental regulations.
23.16. TENANT ALLOWANCE. As additional consideration for Tenant
entering into this Lease, on the date hereof, Landlord shall pay to Tenant a
tenant allowance in the amount of $88,450.00 to be applied by Tenant to tenant
improvements at the Premises in the operation of Tenant's business or for other
general corporate purposes as determined by Tenant in its sole discretion.
[Signature Page Follows]
20
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD:
FIRST INDUSTRIAL DEVELOPMENT SERVICES,
INC., a Maryland corporation
By: /s/
------------------------------------
Its: Executive Vice President
-----------------------------------
TENANT:
DEPOSITION SCIENCES, INC., an Ohio
corporation
By: /s/
------------------------------------
Its: Executive Vice President
-----------------------------------
Landlord's Addresses for Notices: Tenant's Addresses for Notices:
First Industrial Development Deposition Sciences, Inc.
Services, Inc. 00000 Xxxxxx Xxxx
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxx, Xxxx 00000
Xxxxxxx, Xxxxxxxx 00000 Attn: __________________________________
Attn: Executive Vice
President-Operations
With a copy to: With a copy to:
First Industrial Realty Trust, Inc. Cowden, Humphrey, Nagorney & Xxxxxx Co.,
[LOCAL REGIONAL OFFICE ADDRESS] L.P.A.
_____________________________________ 1414 Xxxxxxxx Xxxxx, 00 Xxxxxx Xxxxxx
Attn: _______________________________ Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx X. Xxxx
With a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx LLP
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx-Xxxxx
S-1
EXHIBIT A
PREMISES
[ATTACH APPROPRIATE LEGAL DESCRIPTION]
A-1
EXHIBIT B
TENANT OPERATIONS INQUIRY FORM
1. Name of Company/Contact ___________________________________________________
2. Address/Phone _____________________________________________________________
___________________________________________________________________________
3. Provide a brief description of your business and operations: ______________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4. Will you be required to make filings and notices or obtain permits as
required by Federal and/or State regulations for the operations at the
proposed facility? Specifically:
a. XXXX Title III Section 312 (Tier II) reports YES NO
--- ---
(> 10,000lbs. of hazardous materials STORED at any one time)
b. XXXX Title III Section 313 (Tier III) Form R YES NO
reports --- ---
(> 10,000lbs. of hazardous materials USED per year)
c. NPDES or SPDES Stormwater Discharge permit YES NO
--- ---
(answer "No" if "No-Exposure Certification" filed)
d. EPA Hazardous Waste Generator ID Number YES NO
--- ---
5. Provide a list of chemicals and wastes that will be used and/or generated
at the proposed location. Routine office and cleaning supplies are not
included. Make additional copies if required.
STORAGE CONTAINER(S)
APPROXIMATE ANNUAL QUANTITY (I.E. DRUMS, CARTONS, TOTES,
CHEMICAL/WASTE USED OR GENERATED BAGS, ASTS, USTS, ETC)
-------------- --------------------------- ----------------------------
B-1
EXHIBIT C
BROOM CLEAN CONDITION AND REPAIR REQUIREMENTS
- All lighting is to be placed into good working order. This includes
replacement of bulbs, ballasts, and lenses as needed.
- All truck doors and dock levelers should be serviced and placed in good
operating order (including, but not limited to, overhead door springs,
rollers, tracks and motorized door operator). This would include the
necessary (a) replacement of any dented truck door panels, broken panels
and cracked lumber, and (b) adjustment of door tension to insure proper
operation. All door panels that are replaced shall be painted to match the
building standard.
- All structural steel columns in the warehouse and office should be
inspected for damage, and must be repaired. Repairs of this nature shall be
pre-approved by the Landlord prior to implementation.
- HVAC system shall be in good working order, including the necessary
replacement of any parts to return the unit to a well-maintained condition.
This includes, but is not limited to, filters, thermostats, warehouse
heaters and exhaust fans. Upon move-out, Landlord will have an exit
inspection performed by a certified mechanical contractor to determine the
condition of the HVAC system.
- All holes in the sheet rock walls shall be repaired prior to move-out. All
walls shall be clean.
- The carpets and vinyl tiles shall be in a clean condition and shall not
have any holes or chips in them. Flooring shall be free of excessive dust,
dirt, grease, oil and stains. Cracks in concrete and asphalt shall be
acceptable as long as they are ordinary wear and tear, and are not the
result of misuse.
- Facilities shall be returned in a clean condition, including, but not
limited to, the cleaning of the coffee bar, restroom areas, windows, and
other portions of the Premises.
- There shall be no protrusion of anchors from the warehouse floor and all
holes shall be appropriately patched. If machinery/equipment is removed,
the electrical lines shall be properly terminated at the nearest junction
box.
- All exterior windows with cracks or breakage shall be replaced. All windows
shall be clean.
- Tenant shall provide keys for all locks on the Premises, including front
doors, rear doors, and interior doors.
- All mechanical and electrical systems shall be left in a safe condition
that confirms to code. Bare wires and dangerous installations shall be
corrected to Landlord's reasonable satisfaction.
- All plumbing fixtures shall be in good working order, including, but not
limited to, the water heater. Faucets and toilets shall not leak.
- All dock bumpers shall be left in place and well-secured.
- Drop grid ceiling shall be free of excessive dust from lack of changing
filters. No ceiling tiles may be missing or damaged.
- All trash shall be removed from both inside and outside of the Building.
- All signs in front of Buildings and on glass entry door and rear door shall
be removed.
- Remove all pads for machinery and repair and seal any roof penetrations.
C-1
EXHIBIT D
TERMINATION VALUES
In the event Tenant has the right to purchase the Premises pursuant to SECTION
18.3.1, the purchase price shall be an amount equal to the product of (A) 1.10,
multiplied by (B) the sum of the following: (i) the amount of the current
Landlord's equity investment in the Premises (including all related acquisition
costs including, but not limited to, legal fees, brokerage commissions,
environmental consultants and engineering consultants and any unreimbursed
improvements and capital expenditures), (ii) the amount of any then-outstanding
debt on the Premises, and (iii) the amount of any yield maintenance or
defeasance fees or other fees or premiums due in connection with the pre-payment
of any then-outstanding debt.
The determination of the purchase price under this EXHIBIT D shall be determined
by Landlord in its sole but reasonable discretion and shall be conclusive absent
manifest error.
D-1
EXHIBIT E
YEAR 1 RENT SCHEDULE
MONTH RENT
----- -------------
1 $ 99,060.42
2 99,060.42
3 99,060.42
4 99,060.42
5 99,060.42
6 99,060.42
7 104,060.42
8 104,060.42
9 104,060.42
10 104,060.42
11 104,060.42
12 104,060.42
TOTAL $1,218,725.00
E-1
