LEASE AGREEMENT
between
NL VENTURES IV CENTURION, L.P.
as Landlord
and
SUPERSTOCK, INC.
as Tenant
TABLE OF CONTENTS
PAGE
ARTICLE I
Section 1.01 Lease of Premises; Title and Condition.........................1
Section 1.02 Use............................................................2
Section 1.03 Term...........................................................2
Section 1.04 Options To Extend the Term.....................................2
Section 1.05 Rent...........................................................3
ARTICLE II
Section 2.01 Maintenance and Repair.........................................3
Section 2.02 Alterations, Replacements and Additions........................4
ARTICLE III
Section 3.01 Severable Property; Waiver of Statutory Landlord's Lien........5
Section 3.02 Removal........................................................5
ARTICLE IV
Section 4.01 Tenant's Assignment and Subletting.............................6
Section 4.02 Assignment/Subletting Exceptions...............................6
Section 4.03 Transfer or Pledge by Landlord.................................8
ARTICLE V
Section 5.01 Net Lease......................................................8
Section 5.02 Taxes and Assessments; Compliance With Law.....................9
Section 5.03 Liens.........................................................10
Section 5.04 Indemnification...............................................11
Section 5.05 Permitted Contests............................................13
Section 5.06 Environmental Compliance......................................14
ARTICLE VI
Section 6.01 Procedure Upon Purchase.......................................16
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.02 Condemnation and Casualty.....................................17
Section 6.03 Insurance.....................................................19
ARTICLE VII
Section 7.01 Conditional Limitations; Default Provisions...................21
Section 7.02 Bankruptcy or Insolvency......................................25
Section 7.03 Additional Rights of Landlord.................................25
ARTICLE VIII
Section 8.01 Notices and Other Instruments.................................26
Section 8.02 Estoppel Certificates; Financial Information..................27
ARTICLE IX
Section 9.01 No Merger.....................................................29
Section 9.02 Surrender.....................................................29
Section 9.03 Separability; Binding Effect; Governing Law...................29
Section 9.04 Table of Contents and Headings; Internal References...........29
Section 9.05 Counterparts..................................................29
Section 9.06 Landlord's Liability..........................................30
Section 9.07 Amendments and Modifications..................................30
Section 9.08 Additional Rent...............................................30
Section 9.09 Consent of Landlord...........................................30
Section 9.10 Quiet Enjoyment...............................................30
Section 9.11 Holding Over..................................................30
Section 9.12 Financing.....................................................31
Section 9.13 Subordination, Non-Disturbance and Attornment.................31
Section 9.14 Disclaimer of Purchase Rights.................................31
Section 9.15 Security Deposit..............................................31
Section 9.16 Guaranty......................................................32
Section 9.17 Tenant's Financial Covenants and Release of Security Deposit..32
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.18 Fair Market Value.............................................32
Section 9.19 Short Form Memorandum of Lease................................34
Section 9.20 Limitation on Damages.........................................34
Section 9.21 Right of First Offer..........................................34
Section 9.22 Radon Gas Disclosure..........................................34
Section 9.23 Landlord's Entry onto Premises................................34
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") dated as of June 30, 2004, is
made and entered into between NL VENTURES IV CENTURION, L.P., a Texas limited
partnership ("Landlord"), and SUPERSTOCK, INC., a Florida corporation
("Tenant").
ARTICLE I
SECTION 1.01. LEASE OF PREMISES; TITLE AND CONDITION. Upon and
subject to the terms and conditions herein specified, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the premises (the "Premises")
consisting of:
(a) that parcel of land more particularly described in Exhibit A
attached hereto and made a part hereof for all purposes, having an address at
0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx, together with all of Landlord's
right, title and interest, if any, in and to all easements, rights-of-way,
appurtenances and other rights and benefits associated with such parcel of land
and to all public or xxxxxxx xxxxxxx, xxxxx, xxxxxxx, alleys or passways, open
or proposed, on or abutting such parcel of land (collectively, the "Land"); and
(b) all of the buildings, structures, fixtures, facilities,
installations and other improvements of every kind and description now or
hereafter in, on, over and under the Land and all plumbing, gas, electrical,
ventilating, lighting and other utility systems, ducts, hot water heaters, oil
burners, domestic water systems, elevators, escalators, canopies, air
conditioning systems and all other building systems and fixtures attached to or
comprising a part of the buildings, including, but not limited to, all other
building systems and fixtures necessary to the operation of the buildings, but
excluding all personal property now or hereafter belonging to Tenant and
Severable Property (as defined in Section 3.01 hereof) (collectively, the
"Improvements").
The Premises are leased to Tenant in their present condition without
representation or warranty by Landlord and subject to all applicable Legal
Requirements (as defined in Section 5.02(b)) now or hereafter in effect and to
Permitted Exceptions listed in Exhibit B attached hereto and made a part hereof
for all purposes. Tenant has examined the Premises and title to the Premises and
has found all of the same satisfactory for all purposes. LANDLORD LEASES AND
WILL LEASE AND TENANT TAKES AND WILL TAKE THE PREMISES AS IS. TENANT
ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER
CAPACITY) HAS NOT MADE NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE PREMISES,
INCLUDING ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv)
LANDLORD'S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii)
LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii)
DESCRIPTION, (xiii) DURABILITY, (xiv) OPERATION, (xv) THE EXISTENCE OF ANY
HAZARDOUS SUBSTANCE, HAZARDOUS CONDITION OR HAZARDOUS ACTIVITY OR (xvi)
COMPLIANCE OF THE PREMISES WITH ANY LAW; AND ALL RISKS INCIDENT THERETO ARE TO
BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE PREMISES IS OF ITS SELECTION
AND TO ITS SPECIFICATIONS AND THAT THE PREMISES HAS BEEN INSPECTED BY TENANT AND
IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE
PREMISES OF ANY NATURE, WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE ANY
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN TORT). The provisions of
this paragraph have been negotiated and are intended to be a complete exclusion
and negation of any warranty by Landlord, express or implied, with respect to
any of the Premises, arising pursuant to the Uniform Commercial Code or any
other law now or hereafter in effect or arising otherwise.
SECTION 1.02. USE. Tenant may use the Premises for general business
office purposes and uses ancillary thereto and for any other lawful purpose
allowed under current zoning requirements and for no other purpose without the
prior written consent of Landlord. Tenant shall not knowingly use or occupy or
permit any of the Premises to be used or occupied, nor knowingly do or permit
anything to be done in or on any of the Premises, in a manner which would (i)
make void or voidable or cause any insurer to cancel any insurance required by
this Lease, or make it impossible to obtain any such insurance at commercially
reasonable rates, (ii) make void or voidable, cancel or cause to be canceled or
release any warranty, guaranty or indemnity running to the benefit of the
Premises or the Landlord, (iii) cause structural injury to any of the
Improvements, or (iv) constitute a public or private nuisance or waste.
SECTION 1.03. TERM. This Lease shall be for an Interim Term, if any,
beginning as of the date hereof and ending at midnight on the last day of the
month including the date hereof and a Primary Term of twenty (20) years
beginning on July 1, 2004, and ending at midnight on June 30, 2024. The time
period during which this Lease shall actually be in effect, including the
Interim Term, the Primary Term and any Extended Term (as defined in Section
1.04) for which the right to extend is exercised, as any of the same may be
terminated prior to their scheduled expiration pursuant to the provisions
hereof, is sometimes referred to herein as the "Term" or "Lease Term."
SECTION 1.04. OPTIONS TO EXTEND THE TERM. Unless an Event of Default
(as defined herein) has occurred and is continuing at the time any option is
exercised, Tenant shall have the right and option to extend the Lease Term for
two (2) additional periods of five (5) years each, each commencing at midnight
on the day on which the then existing term of this Lease expires (an "Extended
Term"), unless this Lease shall expire or be terminated pursuant to any
provision hereof. Tenant shall exercise its option to extend the Lease Term for
each of the Extended Terms by giving written notice of intent to Landlord at any
time not more than 36 or less than 24 months prior to the expiration of the then
existing Term or Extended Term. Upon the request of Landlord or Tenant, the
parties hereto will, at the expense of Tenant, execute and exchange an
instrument in recordable form setting forth the extension of the Lease Term in
accordance with this Section 1.04. If Tenant timely and properly exercises the
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foregoing option(s), the Basic Rent due shall be set forth in Exhibit C and all
other terms and conditions of this Lease shall be applicable.
SECTION 1.05. RENT.
(a) During the Term, Tenant shall pay to Landlord the amounts set
forth in Exhibit C as monthly basic rent for the Premises ("Basic Rent"). Tenant
shall pay Basic Rent to Landlord (or to Landlord's Mortgagee, upon Landlord's
request) by wire transfer, in immediately available funds, as follows:
Bank: Mellon Bank Pittsburgh, PA
ABA Routing #: 043 000 261
Account Number: 101-1730
Account Name: Xxxxxxx Xxxxx
For further credit to: Account No. 586-07125, Account Name: NL
Ventures IV Centurion, X.X.
Xxxxxxx Xxxxx contact: Xxxxx Xxxx @ 000-000-0000,
or at such other address or to such other person as Landlord from time to time
may designate and in such proportions as Landlord may designate. In no event may
there be more than three (3) designees at any one time. Landlord shall give
Tenant not less than 15 days' prior written notice of any change in the address
to which such payments are to be made. If the party entitled to receive Basic
Rent or such party's address shall change, Tenant may, until receipt of notice
of such change from the party entitled to receive Basic Rent immediately
preceding such change, continue to pay Basic Rent and additional charges to the
party to which, and in the manner in which, the preceding installment of Basic
Rent or additional charges, as the case may be, was paid. All installments of
Basic Rent shall be paid in advance on the first day of each month, except for
any Basic Rent due for the rental of the Premises during the Interim Term which
shall be payable in advance on or before the date hereof. Any rental payment
made in respect of a period which is less than one month shall be prorated by
multiplying the then applicable monthly rental by a fraction the numerator of
which is the number of days in such month with respect to which rent is being
paid and the denominator of which is the total number of days in such month.
Tenant shall perform all its obligations under this Lease at its sole cost and
expense, and shall pay all Basic Rent, and recurring additional charges when due
and payable, without notice or demand.
ARTICLE II
SECTION 2.01. MAINTENANCE AND REPAIR.
(a) Tenant acknowledges that it has received the Premises in the
condition disclosed in the Property Condition Assessment of SuperStock Building,
prepared by Xxxxx & Xxxxxx Technical Services Incorporated and dated May 12,
2004. Tenant, at its own expense, agrees to repair, replace or install a new
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roof (but not, unless necessary, the structural elements thereof) during the
Term in compliance with the terms of Section 2.02 hereof such that the repaired,
replaced or new roof shall have a transferable warranty customary for the
industry with a minimum duration of twenty (20) years. Tenant, at its own
expense and subject to Casualty, Condemnation and reasonable wear and tear, will
maintain all parts of the Premises in good order, repair, appearance and
condition and will take all action and will make all structural and
nonstructural, foreseen and unforeseen and ordinary and extraordinary changes
and repairs which may be required to keep all parts of the Premises in good
order, repair, appearance and condition (including, but not limited to, all
painting, glass, utilities, conduits, fixtures and equipment, foundation, roof,
exterior walls, heating and air conditioning systems, wiring, plumbing,
sprinkler systems and other utilities, and all paving, sidewalks, roads, parking
areas, curbs and gutters and fences). Landlord, its contractors, subcontractors,
servants, employees and agents, shall have the right to enter upon the Premises
to inspect same to ensure that all parts of the Premises are maintained as
required by this Lease, and Tenant shall not be entitled to any abatement or
reduction in rent by reason thereof. Landlord shall not be required to maintain,
repair or rebuild all or any part of the Premises, and Tenant waives the right
to require Landlord to maintain, repair or rebuild all or any part of the
Premises or make repairs at the expense of Landlord pursuant to any Legal
Requirement, agreement, contract, covenant, condition or restrictions at any
time.
(b) If all or any part of the Improvements shall encroach upon any property,
street or right-of-way adjoining or adjacent to the Premises, or shall violate
the agreements or conditions affecting the Premises or any part thereof, or
shall hinder, obstruct or impair any easement or right-of-way to which the
Premises are subject, then, promptly after written request of Landlord (unless
such encroachment, violation, hindrance, obstruction or impairment is immaterial
or a Permitted Exception) or of any person so affected, Tenant shall, at its
expense, either (i) obtain valid and effective waivers or settlements of all
claims, liabilities and damages resulting therefrom or (ii) if Landlord consents
thereto (to the extent such consent is required by this Lease), make such
changes, including alteration or removal, to the Improvements and take such
other action as shall be necessary to remove or eliminate such encroachments,
violations, hindrances, obstructions or impairments. To the extent any easements
are, in Landlord's good faith judgment, necessary for Tenant's use and occupancy
of the Premises as contemplated by this Lease, upon Tenant's written request,
Landlord will execute such easements and cause Landlord's Mortgagee to
subordinate thereto.
SECTION 2.02. ALTERATIONS, REPLACEMENTS AND ADDITIONS.
(a) Tenant may, at its expense, make additions to and alterations
of the Improvements, and construct additional Improvements, provided that:
(i) the fair market value, the utility, the square footage or
the useful life of the Premises shall not be lessened thereby,
(ii) such work shall be expeditiously completed in a good and
workmanlike manner and in compliance with all applicable Legal Requirements and
the requirements of all insurance policies required to be maintained by Tenant
hereunder,
4
(iii) if the anticipated cost of any structural alteration is
more than $50,000, Tenant shall have obtained Landlord's consent, which shall
not be unreasonably withheld, conditioned or delayed,
(iv) if the anticipated cost of any structural alterations is
more than $250,000, and Landlord consents thereto, then Tenant shall furnish
Landlord with such surety bonds or other security reasonably acceptable to
Landlord (but in no event greater than the cost of such alterations or
demolitions),
(v) structural alterations costing less than $50,000 and any
cosmetic, interior or nonstructural alterations (including demolition or
construction of interior demising walls that are non-structural and non
load-bearing) shall not require consent from Landlord, and
(vi) no Event of Default exists.
(b) All additions and alterations of the Premises, without
consideration by Landlord, shall be and remain part of the Premises (not subject
to removal upon termination) and the property of Landlord and shall be subject
to this Lease, but this provision shall not be applicable to Tenant's moveable
personal property or trade fixtures. To the extent that Landlord shall fail to
respond to any request for consent by Tenant pursuant to this Section 2.02
within 15 days after receipt of such request, Tenant may make a second request
for consent. If such second request states on its face that the consent of
Landlord will be deemed given if not responded to within 15 days after receipt
of such second request, Landlord's consent will be deemed given 15 days after
Landlord receives such second request. Landlord shall reasonably cooperate with
Tenant's alteration projects, including execution of necessary applications as
landowner so long as such acts do not increase Landlord's liability.
ARTICLE III
SECTION 3.01. SEVERABLE PROPERTY; WAIVER OF STATUTORY LANDLORD'S
LIEN. Tenant may, at its expense, install, assemble or place on the Premises and
remove and substitute any items of machinery, equipment, furniture, furnishings
or other personal property used or useful in Tenant's business and trade
fixtures including those described in Exhibit D attached hereto and made a part
hereof for all purposes (collectively, the "Severable Property"), and title to
same shall remain in Tenant. Upon the written request of Tenant, Landlord will
confirm in writing that is does not own or claim any interest in the Severable
Property or Landlord will execute reasonable waiver or subordination agreements
with Tenant's lenders in a form reasonably agreeable to Landlord. Landlord
hereby waives any rights it may have for liens on the Severable Property under
Section 83.08 of the Florida Statutes (2003).
SECTION 3.02. REMOVAL. Tenant may remove the Severable Property at
any time during the Lease Term. Any of Tenant's Severable Property not removed
by Tenant prior to the expiration of the Lease or 30 days after an earlier
termination shall be considered abandoned by Tenant and may be appropriated,
sold, destroyed or otherwise disposed of by Landlord without obligation to
account therefor. Tenant will repair at its expense all damage to the Premises
necessarily caused by the removal of Tenant's Severable Property, whether
effected by Tenant or by Landlord. This Article III will also apply equally to
any approved or permitted sublessee hereunder.
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ARTICLE IV
SECTION 4.01. TENANT'S ASSIGNMENT AND SUBLETTING. Tenant may, for its
own account, assign this Lease or sublet the use of all or any part of the
Premises for the Interim Term, the Primary Term, or any Extended Term (if such
extension is properly exercised hereunder) of this Lease so long as no Event of
Default shall exist hereunder at the time of such assignment or sublease and
Tenant shall have obtained Landlord's prior written consent to such assignment
or sublease. Landlord's determination as to whether or not to consent to any
proposed assignment or sublease will be made in Landlord's commercially
reasonable discretion taking into account, among other factors, the following:
(i) the business reputation and credit-worthiness of the proposed subtenant or
assignee, (ii) the intended use of the Premises by the proposed subtenant or
assignee, (iii) the nature of the business conducted by such subtenant or
assignee and whether such business would be deleterious to the condition or
reputation of the Premises or Landlord, (iv) the estimated pedestrian and
vehicular traffic in and about the Premises that would be generated by the
proposed subtenant or assignee, and (v) whether the proposed subtenant or
assignee is a department, representative, agency or instrumentality of any
governmental body, foreign or domestic. Regardless of whether Landlord's consent
is required, each such assignment or sublease shall expressly be made subject to
the provisions hereof, and each approved or permitted assignee or sublessee
shall have the same rights as Tenant hereunder to further sublet or assign. No
such assignment or sublease shall modify or limit any right or power of Landlord
hereunder or affect or reduce any obligation of Tenant hereunder, and all such
obligations shall be those of Tenant and shall continue in full effect as
obligations of a principal and not of a guarantor or surety, as though no
subletting or assignment had been made, such liability of the Tenant named
herein to continue notwithstanding any subsequent modifications or amendments of
this Lease; provided, however, that (other than with respect to any
modifications required by law or on account of bankruptcy or insolvency) if any
modification or amendment is made without the consent of Tenant named herein,
such modification or amendment shall be ineffective as against Tenant named
herein to the extent, and only to the extent, that the same shall increase the
obligations of Tenant, it being expressly agreed that Tenant named herein shall
remain liable to the full extent of this Lease as if such modification had not
been made. Neither this Lease nor the Lease Term hereby demised shall be
mortgaged by Tenant, nor shall Tenant mortgage or pledge its interest in any
sublease of the Premises or the rentals payable thereunder. Any sublease made
otherwise than as expressly permitted by Sections 4.01 and 4.02 and any
assignment of Tenant's interest hereunder made otherwise than as expressly
permitted by Sections 4.01 and 4.02 shall be void. Tenant shall, within 20 days
after the execution of any assignment or sublease, deliver a conformed copy
thereof to Landlord. Upon Tenant's request, Landlord agrees to enter into a
recognition agreement with any approved or permitted sublessee in a form
reasonably agreeable to Landlord. Upon Tenant's request, Landlord agrees to
request that its mortgagee deliver a subordination and non-disturbance agreement
to any sublessee.
SECTION 4.02. ASSIGNMENT/SUBLETTING EXCEPTIONS. Notwithstanding the
provisions of Section 4.01, Tenant shall not be required to obtain Landlord's
consent for any sublease demising 7,500 square feet or more but one fourth or
less of the net rentable area of the Improvements. Likewise, notwithstanding the
6
provisions of Section 4.01, Tenant shall also have the right to assign its
interest in this Lease or sublet all or any portion of the Premises at any time
without the consent of Landlord or any Mortgagee of Landlord to (i) the
surviving entity of any merger or consolidation between Tenant and its parent,
(ii) any Affiliate of Tenant, or (iii) to any person or entity who purchases
substantially all of the assets of Tenant, so long as any proposed assignee or
sublessee has a Tangible Net Worth (as defined in Section 9.17) equal to or
greater than the greater of (a) the Tangible Net Worth of Tenant at such time,
or (b) $6,000,000.00, as shown on such prospective assignee's or sublessee's
balance sheet prepared in accordance with GAAP within three (3) months prior to
such assignment or sublease. Provided, however, the exceptions afforded to
Tenant above in this Section shall be conditioned on the following:
(a) Tenant is not then in default beyond applicable notice and
cure periods hereunder;
(b) Landlord is provided a copy of such assignment or sublease;
(c) Any subletting of the Premises shall be subject to the terms
of this Lease and Tenant shall remain liable hereunder (except as provided in
Section 4.02 (g) below), as same may be amended from time to time;
(d) Each sublease permitted under this Section shall contain
provisions to the effect that (i) such sublease is only for actual use and
occupancy by the sublessee except for further approved or permitted assignees or
sublessees; (ii) such sublease is subject and subordinate to all of the terms,
covenants and conditions of this Lease and to all of the rights of Landlord
hereunder; (iii) in the event this Lease shall terminate before the expiration
of such sublease, the sublessee thereunder will, at Landlord's option, attorn to
Landlord and waive any rights the sublessee may have to terminate the sublease
or to surrender possession thereunder, as a result of the termination of this
Lease, subject to any applicable recognition agreements; and (iv) the sublessee
shall not knowingly at any time (a) cause any violation of Environmental Laws to
occur or (b) permit any Person occupying the Premises through said sublessee to
knowingly cause any violation of Environmental Laws to occur;
(e) Tenant agrees to pay on behalf of Landlord any and all
reasonable out-of-pocket costs of Landlord, including reasonable attorneys' fees
paid or payable to outside counsel, occasioned by such subletting or assignment.
Further, Tenant agrees that Landlord shall in no event be liable for any leasing
commissions, finish-out costs, rent abatements or other costs, fees or expenses
incurred by Tenant in subleasing or assigning or seeking to sublease or assign
its leasehold interest in the Premises, and Tenant agrees to indemnify, defend
and hold harmless Landlord and its partners, and their respective officers,
directors, shareholders, agents, employees and representatives from, against and
with respect to any and all such commissions, costs, fees and expenses;
(f) Such assignee agrees in writing to honor and perform all of
the obligations of Tenant hereunder arising from and after the date of such
assignment; and
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(g) Landlord agrees to release Tenant and Guarantor from their
respective obligations under the Lease and the Guaranty, never to reinstate such
obligations, if such approved or permitted assignee has (i) an investment credit
rating of BBB(-) or better, and (ii) has a Tangible Net Worth equal to or
greater than $20,000,000.00, as shown on such prospective assignee's balance
sheet prepared in accordance with GAAP within three (3) months prior to such
release.
For the purposes of this Section, "Affiliate" shall be defined as
with respect to any Person, any other Person that, directly or indirectly,
controls or is controlled by or is under common control with such Person, and
shall include the spouse of any natural person, with the term "control" and any
derivatives thereof meaning the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract, or otherwise.
"Person" shall mean an individual, partnership, association, corporation or
other entity.
SECTION 4.03. TRANSFER OR PLEDGE BY LANDLORD. Landlord shall be free
to transfer its fee interest in the Premises or any part thereof or interest
therein, subject, however, to the terms of this Lease. Notwithstanding the
foregoing, Landlord agrees not to sell or transfer its fee interest in the
Premises or any part thereof or interest therein to any entity that (i) is in
Tenant's current field of business, or (ii) is a direct competitor of Tenant.
Any such transfer shall relieve the transferor of all liability and obligation
hereunder (to the extent of the interest transferred) accruing after the date of
the transfer and any assignee shall be bound by the terms and provisions of this
Lease. Landlord shall be free to pledge or mortgage its interest in the Premises
and this Lease on the condition that either (i) this Lease shall be superior to
such pledge or mortgage or (ii) if this Lease is to be subordinate to the
mortgage of any Mortgagee of Landlord, Tenant receives a nondisturbance
agreement reasonably acceptable to Tenant from the holder of such pledge or
mortgage, so long as the same do not adversely affect any right, benefit or
privilege of Tenant under this Lease or increase Tenant's obligations under this
Lease.
ARTICLE V
SECTION 5.01. NET LEASE.
(a) It is expressly understood and agreed by and between the
parties that this Lease is an absolute net lease, and the Basic Rent and all
other sums payable hereunder to or on behalf of Landlord shall be paid without
notice or demand and without setoff, counterclaim, abatement, suspension,
deduction or defense.
(b) Except as otherwise expressly provided in the Lease, this
Lease shall not terminate, nor shall Tenant have any right to terminate this
Lease or be entitled to the abatement of any rent or any reduction thereof, nor
shall the obligations hereunder of Tenant be otherwise affected, by reason of
any damage to or destruction of all or any part of the Premises from whatever
cause, the taking of the Premises or any portion thereof by condemnation or
otherwise, the prohibition, limitation or restriction of Tenant's use of the
Premises, any default on the part of Landlord, any latent or other defect in any
of the Premises, the breach of any warranty of any seller or manufacturer of any
of the Improvements or Severable Property, any violation of any provision of
this Lease by Landlord, the bankruptcy, insolvency, reorganization, composition,
8
readjustment, liquidation, dissolution or winding-up of, or other proceeding
affecting Landlord, the exercise of any remedy, including foreclosure, under any
mortgage or collateral assignment, any action with respect to this Lease
(including the disaffirmance hereof) which may be taken by Landlord, any
trustee, receiver or liquidator of Landlord or any court under the Federal
Bankruptcy Code or otherwise, and market or economic changes, or interference
with such use by any private person or corporation, or by reason of any eviction
by paramount title resulting by a claim from Landlord's predecessor in title, or
for any other cause whether similar or dissimilar to the foregoing, any present
or future law to the contrary notwithstanding, it being the intention of the
parties hereto that the rent and all other charges payable hereunder to or on
behalf of Landlord shall continue to be payable in all events and the
obligations of Tenant hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall be terminated pursuant to an
express provision of this Lease. Nothing contained in this Section 5.01 shall be
deemed a waiver by Tenant of any rights that it may have to bring a separate
action with respect to any default by Landlord hereunder or under any other
agreement.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements. Tenant covenants and agrees that it will
remain obligated under this Lease in accordance with its terms, and that Tenant
will not take any action to terminate, rescind or avoid this Lease,
notwithstanding the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up or other proceeding affecting
Landlord or any assignee of Landlord in any such proceeding.
(d) Except as otherwise expressly provided in the Lease, Tenant
waives all rights now or hereafter conferred by law (i) to quit, terminate or
surrender this Lease or the Premises or any part thereof or (ii) to any
abatement, suspension, deferment or reduction of the rent, or any other sums
payable hereunder to or on behalf of Landlord, regardless of whether such rights
shall arise from any present or future constitution, statute or rule of law.
SECTION 5.02. TAXES AND ASSESSMENTS; COMPLIANCE WITH LAW.
(a) Tenant shall pay, prior to delinquency: (i) all taxes,
assessments, levies, fees, water and sewer rents and charges and all other
governmental charges, general and special, ordinary and extraordinary, foreseen
and unforeseen, which are, at any time prior to or during the Term imposed or
levied upon or assessed against or which arise with respect to (A) the Premises,
(B) any Basic Rent, additional rent or other sums payable hereunder, (C) this
Lease or the leasehold estate hereby created or (D) the operation, possession or
use of the Premises; (ii) all gross receipts or similar taxes (i.e., taxes based
upon gross income which fail to take into account deductions with respect to
depreciation, interest, taxes or ordinary and necessary business expenses, in
each case relating to the Premises) imposed or levied upon, assessed against or
measured by any Basic Rent, additional rent or other sums payable hereunder;
(iii) all sales, value added, ad valorem, use and similar taxes at any time
levied, assessed or payable on account of the leasing, operation, possession or
use of the Premises; and (iv) all charges of utilities, communications and
similar services serving the Premises. Notwithstanding the foregoing, Tenant
shall not be required to pay any franchise, estate, inheritance, transfer,
income, capital gains or similar tax of or on Landlord unless and then only to
the extent such tax is imposed, levied or assessed in substitution for any other
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tax, assessment, charge or levy which Tenant is required to pay pursuant to this
Section 5.02(a); provided, however, that if, at any time during the Lease Term,
the method of taxation shall be such that there shall be assessed, levied,
charged or imposed on Landlord a capital levy or other tax directly on the rents
received therefrom, or upon the value of the Premises or any present or future
improvement or improvements on the Premises, then all such levies and taxes or
the part thereof so measured or based shall be payable by Tenant, and Tenant
shall pay and discharge the same as herein provided. Tenant will furnish to
Landlord, promptly after request therefor, proof of payment of all items
referred to above which are payable by Tenant. If any such assessment may
legally be paid in installments, Tenant may pay such assessment in installments;
in such event, Tenant shall be liable only for installments which become due and
payable with respect to any tax period occurring in whole or in part during the
Lease Term hereof; provided, however, that all amounts referred to in this
Section 5.02(a) for the fiscal or tax year in which the Lease Term shall expire
shall be apportioned so that Tenant shall pay those portions thereof which
correspond with the portion of such year as are within the Lease Term hereby
demised.
(b) Tenant shall comply with and cause the Premises to comply
with and shall assume all obligations and liabilities with respect to (i) all
laws, ordinances and regulations and other governmental rules, orders and
determinations presently in effect or hereafter enacted, made or issued, whether
or not presently contemplated (collectively, "Legal Requirements"), as applied
to the Premises or the ownership, operation, use or possession thereof and (ii)
all contracts, insurance policies (including, without limitation, to the extent
necessary to prevent cancellation thereof and to insure full payment of any
claims made under such policies), agreements, covenants, conditions and
restrictions now or hereafter applicable to the Premises or the ownership,
operation, use or possession thereof (other than covenants, conditions and
restrictions imposed by Landlord subsequent to the date of this Lease without
the consent of Tenant and nothing in this Lease shall be construed as Tenant's
consent or obligate Tenant to deliver any such consent), including, but not
limited to, all such Legal Requirements, contracts, agreements, covenants,
conditions and restrictions which require structural, unforeseen or
extraordinary changes; provided, however, that, with respect to any of the
obligations of Tenant in clause (ii) above which are not now in existence,
Tenant shall not be required to so comply unless Tenant is either a party
thereto or has given its written consent thereto, or unless the same is
occasioned by Legal Requirements or Tenant's default (including any failure or
omission by Tenant) under this Lease. Nothing in clause (ii) of the immediately
preceding sentence or the following sentence shall modify the obligations of
Tenant under Section 5.04 of this Lease.
(c) So long as Tenant's Tangible Net Worth is less than
$6,000,000.00, if required by Landlord's Mortgagee at any time during the Term,
or if an Event of Default should occur and be continuing and Landlord shall make
such request, Tenant shall, in addition to and concurrently with the payment of
Basic Rent as required in subsection 1.05(a) hereof, pay one-twelfth of the
amount (as reasonably estimated by Landlord or Landlord's Mortgagee) of the
annual taxes and assessments described in subsection 5.02(a) hereof and the
annual premiums for insurance required in Section 6.03 hereof next becoming due
and payable with respect to the Premises. Tenant shall also pay to Landlord on
demand therefor the amount by which the actual taxes and assessments and
insurance premiums exceed the payment by Tenant required in this subsection.
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Landlord shall timely apply the escrowed funds to the payment of such charges in
such order or priority as Landlord shall reasonably determine or as required by
applicable law.
SECTION 5.03. LIENS.
(a) Tenant will remove and discharge any charge, lien, security
interest or encumbrance upon the Premises or upon any Basic Rent, additional
rent or other sums payable hereunder which arises for any reason, including,
without limitation, all liens which arise out of the possession, use, occupancy,
construction, repair or rebuilding of the Premises or by reason of unpaid claims
for labor or materials furnished or claimed to have been furnished to Tenant or
for the Premises, but not including (i) the liens and encumbrances set forth in
Exhibit B, (ii) this Lease and any assignment hereof or any sublease permitted
hereunder and (iii) any mortgage, charge, lien, security interest or encumbrance
created or caused by or through Landlord or its agents, employees or
representatives. Tenant may provide a bond or other security reasonable
acceptable to Landlord (but in no event greater in amount than the amount of
such encumbrance) to remove or pay all costs associated with the removal of any
such lien, provided the conditions of Section 5.05 shall be satisfied. Nothing
contained in this Lease shall be construed as constituting the consent or
request of Landlord, express or implied, to or for the performance (on behalf of
or for the benefit of Landlord) by 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 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 UNLESS BY OR THROUGH LANDLORD OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES WITHOUT THE CONSENT OF TENANT.
(b) In no event shall the interest of Landlord be subject to the
liens for improvements made by Tenant, and this Lease expressly prohibits such
liability. Pursuant to Section 713.10 Florida Statutes ("Florida Construction
Lien Law"), this provision specifically provides that no interest of Landlord
shall be subject to liens for improvements made by Tenant at Tenant's direction.
This provision shall serve as notice to all potential construction lienors that
Landlord shall not be liable for and the Premises shall not be subject to liens
for work performed or materials supplied at Tenant's request or at the request
of anyone claiming an interest through Tenant. Tenant shall provide notice to
its contractors doing any work on the Premises of the existence of this
provision in the Lease.
SECTION 5.04. INDEMNIFICATION.
(a) Except to the extent of the gross negligence or willful
misconduct of any Indemnified Party (as defined herein), Tenant shall defend all
actions against Landlord and any partner, officer, director, member, employee or
shareholder of the foregoing (collectively, "Indemnified Parties"), with respect
to, and shall pay, protect, indemnify and save harmless the Indemnified Parties
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from and against, any and all liabilities, losses, damages, costs, expenses
(including, without limitation, reasonable attorneys' fees and expenses), causes
of action, suits, claims, demands or judgments of any nature arising during the
Term from (i) injury to or death of any person, or damage to or loss of
property, on or about the Premises, or connected with the use, condition or
occupancy of any thereof, (ii) use, act or omission of Tenant or its agents,
contractors, licensees, sublessees or invitees and (iii) any contest referred to
in Section 5.05 of this Lease. TENANT UNDERSTANDS AND AGREES THAT THE FOREGOING
INDEMNIFICATION OBLIGATIONS OF TENANT ARE EXPRESSLY INTENDED TO AND SHALL INURE
TO THE BENEFIT OF THE INDEMNIFIED PARTIES EVEN IF SOME OR ALL OF THE MATTERS FOR
WHICH SUCH INDEMNIFICATION IS PROVIDED ARE CAUSED OR ALLEGED TO HAVE BEEN CAUSED
BY THE SOLE SIMPLE, JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF
THE INDEMNIFIED PARTIES, BUT NOT TO THE EXTENT CAUSED BY THE INDEMNIFIED
PARTIES' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The obligations of Tenant under
this Section 5.04 shall survive any termination, expiration, rejection in
bankruptcy, or assumption in bankruptcy of this Lease.
(b) The rights and obligations of Landlord and Tenant with
respect to claims by Landlord against Tenant brought pursuant to this Section
5.04 and Section 5.06 shall be subject to the following conditions:
(i) If Landlord receives notice of the assertion of any claim
in respect of which it intends to make an indemnification claim under this
Section 5.04 or Section 5.06, Landlord shall promptly provide written notice of
such assertion to Tenant; provided that failure of Landlord to give Tenant
prompt notice as provided herein shall not relieve Tenant of any of its
obligations hereunder, except to the extent the Tenant is prejudiced by such
failure. The notice shall describe in reasonable detail the nature of the claim
and the basis for an indemnification claim under this Section 5.04 or Section
5.06, and shall be accompanied by all papers and documents which have been
served upon Landlord and such other documents and information as may be
appropriate to an understanding of such claim and the liability of Tenant to
indemnify Landlord hereunder. Except as required by law, Landlord shall not
answer or otherwise respond to such claim or take any other action which may
prejudice the defense thereof unless and until Tenant has been given the
opportunity to assume the defense thereof as required by this Section 5.04 and
refused to do so.
(ii) Upon receipt of an indemnification notice under this
Section 5.04, Tenant shall have the right, but not the obligation, to promptly
assume and take exclusive control of the defense, negotiation and/or settlement
of such claim. In the event of a conflict of interest or dispute or during the
continuance of an Event of Default, Landlord shall have the right to select
counsel to act as co-counsel with the counsel chosen by Tenant, and the
reasonable cost of such counsel shall be paid by Tenant. The parties acknowledge
that, with respect to claims for which insurance is available, the rights of the
parties to select counsel for the defense of such claims shall be subject to
such approval rights as the insurance company providing coverage may have.
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(iii) The party controlling the defense of a claim shall keep
the other party reasonably informed at all stages of the defense of such claim.
The party not controlling the defense of any claim shall have the right, at its
sole cost and expense, to participate in, but not control, the defense of any
such claim. Each party shall reasonably cooperate with the other in the defense,
negotiation and/or settlement of any such claim. In connection with any defense
of a claim undertaken by Tenant, Landlord shall provide Tenant, and its counsel,
accountants and other representatives, with reasonable access to relevant books
and records and make available such personnel of Landlord as Tenant may
reasonably request.
SECTION 5.05. PERMITTED CONTESTS.
(a) Tenant, at its expense, may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, any Legal
Requirement with which Tenant is required to comply pursuant to this Lease, or
the amount or validity or application, in whole or in part, of any tax,
assessment or charge which Tenant is obligated to pay or any lien, encumbrance
or charge not permitted by Sections 2.01, 2.02, 5.02(a), 5.03 and 6.02, provided
that unless Tenant has already paid such tax, assessment or charge (i) the
commencement of such proceedings shall suspend the enforcement or collection
thereof against or from Landlord and against or from the Premises, (ii) neither
the Premises nor any rent therefrom nor any part thereof or interest therein
would be in any imminent danger of being sold, forfeited, attached or lost,
(iii) Tenant shall have furnished such security, if any, as may be required in
the proceedings and as may be reasonably required by Landlord (which requirement
Landlord agrees to waive if Tenant has a Tangible Net Worth equal to or greater
than $6,000,000.00), and (iv) if such contest be finally resolved against
Tenant, Tenant shall promptly pay the amount required to be paid, together with
all interest and penalties accrued thereon. Landlord, at Tenant's expense, shall
execute and deliver to Tenant such authorizations and other documents as
reasonably may be required in any such contest. Tenant shall indemnify and save
Landlord harmless against any cost or expense of any kind that may be imposed
upon Landlord in connection with any such contest and any loss resulting
therefrom. Notwithstanding any other provision of this Lease to the contrary,
Tenant shall not be in default hereunder in respect to the compliance with any
Legal Requirement with which Tenant is obligated to comply pursuant to this
Lease, or in respect to the payment of any tax, assessment or charge which
Tenant is obligated to pay or any lien, encumbrance or charge not permitted by
Section 2.01, 2.02, 5.02(a), 5.03 and 6.02 which Tenant is in good faith
contesting.
(b) Without limiting the provisions of Section 5.05(a), so long
as no Event of Default exists and the conditions set forth in Section 5.05(a)
are satisfied, Landlord hereby irrevocably appoints Tenant as Landlord's
attorney-in-fact solely for the purpose of prosecuting a contest of any tax,
assessment or charge which Tenant is obligated to pay. Such appointment is
coupled with an interest. Notwithstanding the foregoing appointment, if Tenant
determines it to be preferable in prosecution of a contest of a tax, assessment
or charge, upon Tenant's prior request, Landlord shall execute the real estate
tax complaint and/or other documents reasonably needed by Tenant to prosecute
the complaint as to such tax, assessment or charge and return same to Tenant
within ten (10) days. In such event, Tenant shall pay all of Landlord's
reasonable costs and expenses in connection therewith, including, without
limitation, reasonable attorneys' fees and Tenant shall arrange for preparation
of such documentation at Tenant's sole cost and expense.
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SECTION 5.06. ENVIRONMENTAL COMPLIANCE.
(a) For purposes of this Lease:
(i) the term "Environmental Laws" shall mean and include the
Resource Conservation and Recovery Act, as amended by the Hazardous and Solid
Waste Amendments of 1984, the Comprehensive Environmental Response, Compensation
and Liability Act, the Hazardous Materials Transportation Act, the Toxic
Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act
and all applicable state and local environmental laws, ordinances, rules,
requirements, regulations and publications, as any of the foregoing may have
been or may be from time to time amended, supplemented or supplanted and any and
all other federal, state or local laws, ordinances, rules, requirements,
regulations and publications, now or hereafter existing, relating to (i) the
preservation or regulation of the public health, welfare or environment, (ii)
the regulation or control of toxic or hazardous substances or materials, or
(iii) any wrongful death, personal injury or property damage that is caused by
or related to the presence, growth, proliferation, reproduction, dispersal, or
contact with any biological organism or portion thereof (living or dead),
including molds or other fungi, bacteria or other microorganisms or any
etiologic agents or materials; and
(ii) the term "Regulated Substance" shall mean and include
any, each and all substances, biological and etiologic agents or materials now
or hereafter regulated pursuant to any Environmental Laws, including, but not
limited to, any such substance, biological or etiological agent or material now
or hereafter defined as or deemed to be a "regulated substance," "pesticide,"
"hazardous substance" or "hazardous waste" or included in any similar or like
classification or categorization thereunder.
(b) Tenant shall:
(i) not cause or permit any Regulated Substance to be placed,
held, located, released, transported or disposed of on, under, at or from the
Premises in violation of Environmental Laws;
(ii) contain at or remove from the Premises, or perform any
other necessary remedial action regarding, any Regulated Substance in any way
affecting the Premises if, as and when such containment, removal or other
remedial action is required under any Legal Requirement and, whether or not so
required, shall perform any containment, removal or remediation of any kind
involving any Regulated Substance in any way materially adversely affecting the
Premises in compliance with all Legal Requirements and, upon reasonable request
of Landlord after consultation with Tenant (which request may be given only if
Landlord has received information such that it reasonably believes that
environmental contamination exists which may have a material adverse effect on
the Premises), shall arrange a phase I environmental audit (as such term is
defined now or hereafter by the environmental remediation industry), or such
other or further testing or actions as may be required by Legal Requirements or
as may be mutually agreed to by Landlord and Tenant, to be conducted at the
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Premises by qualified companies retained by Tenant specializing in environmental
matters and reasonably satisfactory to Landlord in order to ascertain compliance
with all Legal Requirements and the requirements of this Lease, all of the
foregoing to be at Tenant's sole cost and expense;
(iii) provide Landlord with written notice (and a copy as may
be applicable) of any of the following within 10 days of receipt thereof: (A)
Tenant's obtaining knowledge or notice of any kind of the material presence, or
any actual or threatened release, of any Regulated Substance in any way
materially adversely affecting the Premises; (B) Tenant's receipt or submission,
or Tenant's obtaining knowledge or notice of any kind, of any report, citation,
notice or other communication from or to any federal, state or local
governmental or quasi-governmental authority regarding any Regulated Substance
in any way materially adversely affecting the Premises; or (C) Tenant's
obtaining knowledge or notice of any kind of the incurrence of any cost or
expense by any federal, state or local governmental or quasi-governmental
authority or any private party in connection with the assessment, monitoring,
containment, removal or remediation of any kind of any Regulated Substance in
any way materially adversely affecting the Premises, or of the filing or
recording of any lien on the Premises or any portion thereof in connection with
any such action or Regulated Substance in any way materially adversely affecting
the Premises; and
(iv) in addition to the requirements of Section 5.04 hereof,
defend all actions against the Indemnified Parties and Landlord's Mortgagee and
pay, protect, indemnify and save harmless the Indemnified Parties and Landlord's
Mortgagee from and against any and all liabilities, losses, damages, costs,
expenses (including, without limitation, reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands or judgments of any nature
relating to any Environmental Laws, Regulated Substances or other environmental
matters concerning the Premises during the Term of the Lease; except to the
extent caused by Landlord, Landlord's Mortgagee, or their agents, employees or
representatives. The indemnity contained in this Section 5.06 shall survive the
expiration or earlier termination of this Lease.
(c) Upon reasonable cause and prior written notice from Landlord,
Tenant shall permit such reasonably qualified persons as Landlord may designate
("Site Reviewers") to visit the Premises and perform environmental site
investigations and assessments ("Site Assessments") on the Premises for the
purpose of determining whether there exists on the Premises any violation of
Environmental Laws or any condition which could result in any violations of
Environmental Laws. As of the date hereof, Landlord has no such reasonable
cause. Such Site Assessments may include both above and below the ground
environmental testing for violations of Environmental Laws and such other tests
as may be necessary, in the reasonable opinion of the Site Reviewers, to conduct
the Site Assessments. Tenant shall supply to the Site Reviewers such historical
and operational information regarding the Premises as may be reasonably
requested by the Site Reviewers to facilitate the Site Assessments, and shall
make available for meetings with the Site Reviewers appropriate personnel having
knowledge of such matters. The reasonable cost of performing and reporting a
Site Assessment shall be paid by Tenant.
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If any violation of Environmental Laws occurs or is found to exist during the
Term and, in Landlord's reasonable judgment based upon the written bids of
reputable environmental professionals, the cost of remediation of, or other
response action with respect to, the same is likely to exceed $250,000, Tenant
shall provide to Landlord, within ten (10) days after Landlord's request
therefor, adequate financial assurances that Tenant will effect such remediation
in accordance with applicable Environmental Laws unless Tenant's Tangible Net
Worth shall be equal to or greater than $6,000,000.00. Such financial assurances
may be a bond or letter of credit reasonably satisfactory to Landlord in form
and substance and in an amount not to exceed Landlord's reasonable estimate,
based upon a Site Assessment performed pursuant to this Paragraph, of the
anticipated cost of such remedial action. Notwithstanding any other provision on
this Lease, if (i) a violation of Environmental Laws occurs or is found to exist
during the Term, (ii) the Term would otherwise terminate or expire and (iii)
Landlord is unable to lease the Property to another tenant due to such violation
of Environmental Laws after taking all commercially reasonable actions to do so,
then, at the option of Landlord, the Term shall be automatically extended beyond
the date of termination or expiration and this Lease shall remain in full force
and effect beyond such date until the earlier to occur of (i) the completion of
all remedial action in accordance with applicable Environmental Laws, (ii) the
date specified in a written notice from Landlord to Tenant terminating this
Lease, or (iii) the posting of financial assurances in accordance with this
Paragraph.
If Tenant fails to correct any violation of Environmental Laws which occurs or
is found to exist, Landlord shall have the right (but no obligation) to take any
and all actions as Landlord shall reasonably deem necessary or advisable in
order to cure such violation of Environmental Laws.
All future leases, subleases or concession agreements permitted by this Lease
relating to the Premises entered into by Tenant shall contain covenants of the
other party not to knowingly at any time (i) cause any violation of
Environmental Laws to occur or (ii) permit any Person occupying the Premises
through said subtenant or concessionaire to knowingly cause any violation of
Environmental Laws to occur.
ARTICLE VI
SECTION 6.01. PROCEDURE UPON PURCHASE.
(a) If Tenant shall purchase the Premises pursuant to Section
6.02 of this Lease, Landlord shall convey or cause to be conveyed title thereto
by special warranty deed, free of any mortgage imposed by Landlord and subject
only to this Lease, the lien of any taxes payable by Tenant pursuant to this
Lease, exceptions subject to which the Premises were conveyed to Landlord,
exceptions created or consented to or existing by reason of any action or
inaction by Tenant and all Legal Requirements.
(b) Upon the date fixed for any purchase of the Premises pursuant
to Section 6.02 of this Lease, Tenant shall pay to Landlord the purchase price
therefor specified herein in immediately available funds, together with all
Basic Rent, additional rent and other sums then due and payable hereunder to and
including such date of purchase, and there shall be delivered to Tenant a deed
or other conveyance of the interests in the Premises then being sold to Tenant
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and any other instruments reasonably necessary to evidence the conveyance of
title thereto described in Section 6.01(a) and to assign any other property then
required to be assigned by Landlord pursuant hereto. Tenant acknowledges and
understands that any conveyance of the Premises by Landlord to Tenant shall be
made on an "As-Is", "Where-Is" and "With All Faults" basis, and without any
representations or warranties, express, implied or statutory as to the Premises'
habitability, suitability, marketability, value, fitness for any particular use
or purpose, the absence or presence of any latent or patent defects at or within
the Premises, or the compliance of the Premises with any laws (including,
without limitation, any environmental laws), and the deed by which Landlord
conveys the Premises to Tenant shall contain express language to such effect.
(c) There shall be no adjustments at the closing of a purchase
pursuant to this Section 6.01, save for return of unused escrowed monies and
security deposits. Tenant shall pay all charges incident to such conveyance and
assignment, including, without limitation, reasonable counsel fees, escrow fees,
recording fees, title insurance premiums and all applicable transfer taxes (not
including any income, capital gain or franchise taxes of Landlord) which may be
imposed by reason of such conveyance and assignment and the delivery of said
deed or conveyance and other instruments. Upon the completion of any purchase of
the entire Premises (but not of any lesser interest than the entire Premises)
but not prior thereto (whether or not any delay or failure in the completion of
such purchase shall be the fault of Landlord), this Lease shall terminate,
except with respect to obligations and liabilities of Tenant hereunder, actual
or contingent, which have arisen on or prior to such completion of purchase or
which specifically survive the expiration or earlier termination of this Lease.
SECTION 6.02. CONDEMNATION AND CASUALTY.
(a) GENERAL PROVISIONS. Except as provided in Section 6.02 (a),
(b) and (c), Tenant hereby irrevocably assigns to Landlord any award,
compensation or insurance payment to which Tenant may become entitled by reason
of Tenant's interest in the Premises (i) if the use, occupancy or title of the
Premises or any part thereof is taken, requisitioned or sold in, by or on
account of any actual or threatened eminent domain proceeding or other action by
any person having the power of eminent domain ("Condemnation") or (ii) if the
Premises or any part thereof is damaged or destroyed by fire, flood or other
casualty ("Casualty"). All awards, compensations and insurance payments on
account of any Condemnation or Casualty are herein collectively called
"Compensation". Tenant may not unilaterally negotiate, prosecute or adjust any
claim for any Compensation, except as set forth herein. Tenant must consult with
and obtain Landlord's consent thereto. If the parties are unable to so agree,
then they shall appoint an entity or individual that specializes in such
negotiations who shall negotiate, prosecute and adjust a claim for Compensation.
Landlord shall be entitled to participate in any such proceeding, action,
negotiation, prosecution, appeal or adjustment as contemplated herein, but
Landlord may not unilaterally agree to a sale in lieu of condemnation.
Notwithstanding anything to the contrary contained in this Article VI, if
permissible under applicable law, any separate Compensation made to Tenant for
its moving and relocation expenses, anticipated loss of business profits, loss
of Tenant's goodwill or trade fixtures and equipment (including, without
limitation, the Severable Property) shall be paid directly to and shall be
retained by Tenant (and shall not be deemed to be "Compensation"). All
Compensation shall be applied pursuant to this Section 6.02, and all such
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Compensation (less the expense of collecting such Compensation) is herein called
the "Net Proceeds." Except as specifically set for herein, all Net Proceeds
shall be paid to the Proceeds Trustee (as defined herein) and applied pursuant
to this Section 6.02.
(b) SUBSTANTIAL CONDEMNATION. If a Condemnation shall, in
Tenant's good faith judgment, affect all or a substantial portion of the
Premises and shall render the Premises unsuitable for restoration for continued
use and occupancy in Tenant's business, then Tenant may, not later than 60 days
after a determination has been made as to when possession of the Premises must
be delivered with respect to such Condemnation, deliver to Landlord (i) notice
of its intention ("Notice of Intention") to terminate this Lease on the next
rental payment date which occurs not less than 90 days after the delivery of
such notice (the "Condemnation Termination Date"), (ii) a certificate of an
authorized officer of Tenant describing the event giving rise to such
termination and stating that Tenant has determined that such Condemnation has
rendered or will render the Premises unsuitable for restoration for continued
use and occupancy in Tenant's business, and (iii) if the Condemnation
Termination Date occurs or is to occur during the Primary Term, an irrevocable
offer by Tenant to Landlord to purchase on the Condemnation Termination Date any
remaining portion of the Premises and the Net Proceeds, if any, payable in
connection with such Condemnation (or the right to receive the same when made,
if payment thereof has not yet been made), at a price equal to the then current
annual Basic Rent divided by .09. If either (1) Landlord shall reject such offer
by notice given to Tenant not later than 15 days prior to the Condemnation
Termination Date or (2) the Condemnation Termination Date occurs during any
Extended Term, this Lease shall terminate on the Condemnation Termination Date,
except with respect to obligations and liabilities of Tenant hereunder, actual
or contingent, which have accrued on or prior to the Condemnation Termination
Date, upon payment by Tenant of all Basic Rent, additional rent and other sums
due and payable hereunder to and including the Condemnation Termination Date,
and the Net Proceeds shall belong to Landlord. Unless Landlord shall have
rejected such offer in accordance with this Section, Landlord shall be
conclusively considered to have accepted such offer, and, on the Condemnation
Termination Date, there shall be conveyed to Tenant or its designee the
remaining portion of the Premises, if any, and there shall be assigned to Tenant
(free of all superior claims) all the Net Proceeds, pursuant to and upon
compliance with Section 6.01. In the event Tenant does not deliver the Notice of
Intention to Landlord, Landlord shall permit so much of the Net Proceeds as may
be necessary to be utilized by Tenant to repair or restore the Premises, subject
to the reasonable requirements (with respect to disbursement procedures) of
Landlord's Mortgagee.
(c) SUBSTANTIAL CASUALTY DURING CERTAIN PERIOD. If an insured
Casualty shall, in Tenant's good-faith judgment, affect all or a substantial
portion of the Premises during the last three (3) years of the Primary Term or
any Extended Term, if any, and cannot in Tenant's good faith judgment be
substantially restored within 365 days, then Tenant may, not later than 150 days
after such Casualty, deliver to Landlord (i) notice of its intention to
terminate this Lease on the next rental payment date which occurs not less than
60 days after the delivery of such notice (the "Casualty Termination Date"), and
(ii) a certificate of an authorized officer of Tenant describing the event
giving rise to such termination and stating that Tenant has determined that the
Premises cannot be restored within such period. Upon payment by Tenant of all
Basic Rent, additional rent and other sums then due and payable hereunder to and
including the Casualty Termination Date, this Lease shall terminate on the
Casualty Termination Date except with respect to obligations and liabilities of
18
Tenant hereunder, actual or contingent, which have accrued on or prior to the
Casualty Termination Date, and the Net Proceeds shall belong to Landlord.
Promptly after such termination, Landlord shall return to Tenant all escrowed
monies and security deposits.
(d) LESS THAN SUBSTANTIAL CONDEMNATION OR CERTAIN CASUALTY
EVENTS. If, after a Condemnation or Casualty, Tenant does not give or does not
have the right to give notice of its intention to terminate this Lease as
provided in subsection 6.02(b) or (c), then this Lease shall continue in full
force and effect and Tenant shall, at its expense, rebuild, replace or repair
the Premises in conformity with the requirements of subsections 2.01, 2.02 and
5.03 so as to restore the Premises (in the case of Condemnation, as nearly as
practicable) to the condition, and character thereof immediately prior to such
Casualty or Condemnation; provided that Tenant and Landlord shall use reasonable
efforts to consider modifications which would make the Improvements a more
functional and contemporary design. To the extent the Net Proceeds are less than
$100,000, such amount shall be paid to Tenant to be used to rebuild, replace or
repair the Premises in a lien free and good and workmanlike manner. To the
extent the Net Proceeds are $100,000 or greater, such amount shall be paid to
the Proceeds Trustee and prior to any such rebuilding, replacement or repair,
Tenant shall determine the cost thereof (the "Restoration Cost"), which amount
shall be reasonably acceptable to Landlord. The Restoration Cost shall be paid
first out of Tenant's own funds to the extent that the Restoration Cost exceeds
the Net Proceeds payable in connection with such occurrence, after which
expenditure Tenant shall be entitled to receive the Net Proceeds from the
Proceeds Trustee, but only against (i) certificates of Tenant delivered to
Landlord and the Proceeds Trustee from time to time but no more often than
monthly as such work of rebuilding, replacement and repair progresses, each such
certificate describing the work for which Tenant is requesting payment and the
cost incurred by Tenant in connection therewith and stating that Tenant has not
theretofore received payment for such work and (ii) such additional
documentation or conditions as Landlord or the Proceeds Trustee may reasonably
require, including, but not limited to, copies of all contracts and subcontracts
relating to restoration, architects' certifications, and lien waivers or
releases. Any Net Proceeds remaining after final payment has been made for such
work and after Tenant has been reimbursed for any portions it contributed to the
Restoration Cost with respect to any Casualty shall be paid to Tenant and with
respect to any Condemnation shall be paid to Landlord. In the event of any
temporary Condemnation, this Lease shall remain in full effect and Tenant shall
be entitled to receive the Net Proceeds allocable to such temporary
Condemnation, except that any portion of the Net Proceeds allocable to the
period after the expiration or termination of the Lease Term shall be paid to
Landlord. If the cost of any rebuilding, replacement or repair required to be
made by Tenant pursuant to this subsection 6.02(d) shall exceed the amount of
such Net Proceeds, the deficiency shall be paid by Tenant. Notwithstanding
anything herein to the contrary, in the event of a less than substantial
Condemnation, Tenant and Landlord shall equitably adjust the Basic Rent to take
into consideration any diminished utility of the Property after completion of
any rebuilding, replacement or repair required to be made by Tenant pursuant to
this Section 6.02(d). Notwithstanding anything to the contrary in any
Subordination, Non-Disturbance and Attornment Agreement, Mortgage or other
document evidencing or security a loan made by any Mortgagee to Landlord,
Section 6.02 shall control the application of Compensation.
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SECTION 6.03. INSURANCE.
(a) Tenant will maintain insurance on the Premises of the
following character:
(i) Insurance against all risks of direct physical loss,
including loss by fire, lightning, flooding (if the Premises are in a flood
zone), earthquakes and other risks which at the time are included under
"extended coverage" endorsements, in amounts sufficient to prevent Landlord and
Tenant from becoming a coinsurer of any loss but in any event in amounts not
less than 100% of the actual replacement value of the Improvements, exclusive of
foundations and excavations, without any exclusion for terrorism and with
deductibles of not more than $10,000 per occurrence; provided, however, if the
Premises are not located in an area of special flood or earthquake hazards, the
deductibles for flood and earthquake damage, respectively, may be increased to
$25,000 per occurrence;
(ii) General public liability insurance and/or umbrella
liability insurance against claims for bodily injury, death or property damage
occurring on, in or about the Premises in the minimum amounts of $5,000,000 for
bodily injury or death to any one person, $10,000,000 for any one accident and
$5,000,000 for property damage to others or in such greater amounts as are then
customary for property similar in use to the Premises;
(iii) Rent loss insurance or business interruption insurance
in an amount sufficient to cover loss of rents from the Premises pursuant to
this Lease for a period of at least twelve (12) months;
(iv) Worker's compensation insurance to the extent required by
the law of the state in which the Premises are located;
(v) Boiler and machinery insurance in respect of any boilers
and similar apparatus located on the Premises in the minimum amount of $500,000
or in such greater amounts as to adequately insure the Premises;
(vi) During any period of construction on the Premises,
builder's risk insurance on a completed value, nonreporting basis for the total
cost of such alterations or improvements, and workers' compensation insurance as
required by applicable law, and this coverage may be provided by Tenant's all
risk property insurance pursuant to Section 6.03(i) herein; and
(vii) Such other insurance in such kinds and amounts, with
such deductibles and against such risks, as is commonly obtained in the case of
property similar in use to the Premises and located in the state in which the
Premises are located by prudent owners of such property.
Such insurance shall be written by companies authorized to do
business in the state where the Premises are located and carrying a claims
paying ability rating of at least A-XII by A.M. Best or A by Standard and
Poor's, as applicable, and with the exception of workers' compensation
insurance, shall name Landlord as an additional insured as its interest may
appear. If the Premises or any part thereof shall be damaged or destroyed by
Casualty, and if the estimated cost of rebuilding, replacing or repairing the
20
same shall exceed the threshold set forth in Section 6.02(d), Tenant promptly
shall notify Landlord thereof.
(b) Every such policy provided pursuant to clause (a)(i),
above shall bear a mortgagee endorsement in favor of any mortgagee(s) or
beneficiary(ies) identified by Landlord (whether one or more, the "Mortgagee")
under any mortgages, deeds of trust or similar security instruments creating a
lien on the interest of Landlord in the Premises (whether one or more, the
"Mortgage"), and any loss over the threshold set forth in Section 6.02(d) under
any such policy shall be payable to the Mortgagee which has a first lien on such
interest (if there is more than one first Mortgagee, then to the trustee for
such Mortgagees) to be held and applied by Mortgagee toward restoration pursuant
to Section 6.02. Every such policy with the exception of workers' compensation
insurance, shall name the Mortgagee as an additional insured as its interest may
appear. Every policy referred to in subsection 6.03(a) shall provide that it
will not be cancelled or amended except after 30 days' written notice to
Landlord and the Mortgagee and that it shall not be invalidated by any act or
negligence of Landlord, Tenant or any person or entity having an interest in the
Premises, nor by occupancy or use of the Premises for purposes more hazardous
than permitted by such policy, nor by any foreclosure or other proceedings
relating to the Premises, nor by change in title to or ownership of the
Premises. The "Proceeds Trustee" shall be a financial institution selected by
Landlord and reasonably approved by Tenant and may be the Mortgagee.
(c) Tenant shall deliver to Landlord and Mortgagee (i) upon
request copies of the applicable insurance policies and (ii) original or
duplicate certificates of insurance, satisfactory to Landlord and Mortgagee
evidencing the existence of all insurance which is required to be maintained by
Tenant hereunder and payment of all premiums therefor, such delivery to be made
(i) upon the execution and delivery hereof and (ii) at least 10 days prior to
the expiration of any such insurance. Tenant shall not obtain or carry separate
insurance concurrent in form or contributing in the event of loss with that
required by this Section 6.03 unless Landlord is named an additional insured
therein and unless there is a mortgagee endorsement in favor of Mortgagee with
loss payable as provided herein. Tenant shall immediately notify Landlord
whenever any such separate insurance is obtained and shall deliver to Landlord
and Mortgagee the policies or certificates evidencing the same. Any insurance
required hereunder may be provided under blanket policies, provided that the
Premises are specified therein.
(d) The requirements of this Section 6.03 shall not be
construed to negate or modify Tenant's obligations under Section 5.04.
ARTICLE VII
SECTION 7.01. CONDITIONAL LIMITATIONS; DEFAULT PROVISIONS.
(a) Any of the following occurrences or acts shall constitute an
Event of Default under this Lease:
21
(i) If Tenant shall (1) fail to pay any Basic Rent, recurring
additional rent or other recurring sum when due (except for such failure to
constitute an Event of Default Landlord must provide Tenant with ten (10) days
written notice of Tenant's failure to timely pay such sums one time for any
twelve month period); or (2) fail to pay any other sum payable by it pursuant to
this Lease within thirty (30) days after written notice thereof; or (3) fail to
observe or perform any other provision hereof and such nonmonetary failure shall
continue for 30 days after written notice to Tenant of such failure (provided
that, in the case of any such failure which cannot be cured by the payment of
money and cannot with diligence be cured within such 30-day period, if Tenant
shall commence promptly to cure the same and thereafter prosecute the curing
thereof with diligence, the time within which such failure may be cured shall be
extended for such period not to exceed 180 days as is necessary to complete the
curing thereof with diligence);
(ii) If any representation or warranty of Tenant set forth in
any certificate provided by Tenant pursuant to this Lease, shall prove to be
incorrect in any material adverse respect as of the time when the same shall
have been made in a way adverse to Landlord and Landlord shall suffer a material
loss or material detriment as a result thereof, and, in each case, the facts
shall not be conformed to the representation and warranty as soon as practicable
in the circumstances (but in no event to exceed 30 days) after written notice to
Tenant from Landlord of such inaccuracy and Landlord restored to the position it
would have enjoyed had such representation or warranty been accurate at the time
it was made;
(iii) If Tenant shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any federal or state law or
shall be adjudicated a bankrupt or become insolvent or shall make an assignment
for the benefit of creditors, or if a petition proposing the adjudication of
Tenant as a bankrupt or its reorganization pursuant to any federal or state
bankruptcy law or any similar federal or state law shall be filed in any court
and Tenant shall consent to or acquiesce in the filing thereof or such petition
shall not be discharged or denied within 90 days after the filing thereof;
(iv) If a receiver, trustee or conservator of Tenant or of all
or substantially all of the assets of Tenant or of the Premises or Tenant's or
estate therein shall be appointed in any proceeding brought by Tenant, or if any
such receiver, trustee or conservator shall be appointed in any proceeding
brought against Tenant and shall not be discharged within 90 days after such
appointment, or if Tenant shall consent to or acquiesce in such appointment;
(v) If the Premises shall have been abandoned and not
maintained in the manner required hereunder for a period of 10 consecutive days
after written notice of such from Landlord to Tenant; and
(vi) If a Letter of Credit has been posted as the Security
Deposit or other security hereunder, and the issuer of the Letter of Credit
cancels, terminates or refuses to honor it, and Tenant shall fail to renew the
Letter of Credit within thirty (30) days or shall fail to post a cash equivalent
amount of the Letter of Credit or a replacement letter of credit within thirty
(30) days after notice of such cancellation, termination or refusal.
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(b) If an Event of Default shall have happened and be continuing,
Landlord shall have the right to give Tenant notice of Landlord's termination of
the Lease Term. Upon the giving of such notice, the Lease Term and the estate
hereby granted shall expire and terminate on such date as fully and completely
and with the same effect as if such date were the date herein fixed for the
expiration of the Lease Term, and all rights of Tenant hereunder shall expire
and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing,
Landlord shall have the immediate right, whether or not the Lease Term shall
have been terminated pursuant to subsection 7.01(b), to reenter and repossess
the Premises and the right to remove all persons and property (subject to
Section 3.02) therefrom by summary proceedings, ejectment or any other legal
action or in any lawful manner Landlord determines to be necessary or desirable.
Landlord shall be under no liability by reason of any such reentry, repossession
or removal. No such reentry, repossession or removal shall be construed as an
election by Landlord to terminate the Lease Term unless a notice of such
termination is given to Tenant pursuant to subsection 7.01(b) or unless such
termination is decreed by a court.
(d) At any time or from time to time after a reentry,
repossession or removal pursuant to subsection 7.01(c), whether or not the Lease
Term shall have been terminated pursuant to subsection 7.01(b), Landlord may
relet the Premises for the account of Tenant, in the name of Tenant or Landlord
or otherwise. Landlord may collect any rents payable by reason of such
reletting. Landlord shall not be liable for any failure to relet the Premises or
for any failure to collect any rent due upon any such reletting. Notwithstanding
the foregoing, Landlord agrees to make reasonable efforts to mitigate its
damages under this Lease in the event Tenant actually vacates or advises
Landlord that it is, as of a specified date, to vacate the Premises. The phrase
"reasonable efforts," as it relates to Landlord's duty to attempt to relet the
Premises, shall require Landlord to do only the following: (i) notify Landlord's
management company or broker, if any, in writing of the availability of the
Premises for reletting, (ii) post Landlord's leasing contact telephone number in
an appropriate area of the Premises, and (iii) show the Premises to any
prospective tenant interested in the Premises and to any prospective tenant
specifically referred to Landlord by Tenant. Under any requirement of Landlord
to use "reasonable efforts" as described herein, (i) Landlord shall not be
required to relet the Premises ahead of any other properties in the same market
not producing any income to Landlord; (ii) Landlord shall be entitled to
consider tenant quality, tenant-mix, the financial condition of any prospective
tenant, the nature of the Premises, the proposed use of the Premises by any
prospective tenant, and any rights of existing subtenants located in the
Premises, in making any leasing decision without being deemed to have violated
its mitigation requirement hereunder; and (iii) under any new lease entered into
by Landlord, Landlord may relet all or any portion of the Premises to create an
appropriate block of space for a new tenant, may relet for a greater or lesser
term than that remaining at that time under this Lease, and may include free
rent, concessions, inducements, alterations and upgrades in the new lease. If a
reletting occurs, Landlord shall recoup all of its expenses of reletting
(including, without limitation, all expenses relating to remodeling,
alterations, repairs, capital improvements, brokerage fees, decorating fees, and
fees for architects, designers, space planners and attorneys) before Tenant is
entitled to a credit on the damages owed by Tenant hereunder. If Landlord shall
do all the foregoing then, anything in this Lease, or any statute, or common law
23
rule to the contrary notwithstanding, Landlord shall be deemed to have met its
duty (if any) to mitigate its damages hereunder.
(e) No expiration or termination of the Lease Term pursuant to
subsection 7.01(b), by operation of law or otherwise, and no reentry,
repossession or removal pursuant to subsection 7.01(c) or otherwise, and no
reletting of the Premises pursuant to subsection 7.01(d) or otherwise, shall
relieve Tenant of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination, reentry, repossession, removal or
reletting.
(f) In the event of any expiration or termination of the Lease
Term or reentry or repossession of the Premises or removal of persons or
property therefrom by reason of the occurrence of an Event of Default, Tenant
shall pay to Landlord all Basic Rent, additional rent and other sums required to
be paid by Tenant, in each case to and including the date of such expiration,
termination, reentry, repossession or removal, and, thereafter, Tenant shall,
until the end of what would have been the Lease Term in the absence of such
expiration, termination, reentry, repossession or removal and whether or not the
Premises shall have been relet, be liable to Landlord for, and shall pay to
Landlord, as liquidated and agreed current damages: (i) all Basic Rent, all
additional rent and other sums which would be payable under this Lease by Tenant
in the absence of any such expiration, termination, reentry, repossession or
removal, together with all reasonable and customary expenses of Landlord in
connection with such reletting (including, without limitation, all repossession
costs, brokerage commissions, reasonable attorneys' fees and expenses
(including, without limitation, fees and expenses of appellate proceedings),
employee's expenses, alteration costs and expenses of necessary preparation for
such reletting), less (ii) the net proceeds, if any, of any reletting effected
for the account of Tenant pursuant to subsection 7.01(d). Tenant shall pay such
liquidated and agreed current damages on the dates on which rent would be
payable under this Lease in the absence of such expiration, termination,
reentry, repossession or removal, and Landlord shall be entitled to recover the
same from Tenant on each such date.
(g) At any time after any such expiration or termination of the
Lease Term or reentry or repossession of the Premises or removal of persons or
property therefrom by reason of the occurrence of an Event of Default, whether
or not Landlord shall have collected any liquidated and agreed current damages
pursuant to subsection 7.01(f), Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and
agreed final damages for Tenant's default and in lieu of all liquidated and
agreed current damages beyond the date of such demand (it being agreed that it
would be impracticable or extremely difficult to fix the actual damages), an
amount equal to the excess, if any, of (a) the aggregate of all Basic Rent,
additional rent and other sums which would be payable under this Lease, in each
case from the date of such demand (or, if it be earlier, to date to which Tenant
shall have satisfied in full its obligations under subsection 7.01(f) to pay
liquidated and agreed current damages) for what would be the then unexpired
Lease Term in the absence of such expiration, termination, reentry, repossession
or removal, discounted at the rate equal to the then current yield on United
States Treasury Notes having a maturity as of the stated date for expiration of
the then existing Term of this Lease, plus 2% per annum (the "Reference Rate"),
over (b) the then fair rental value of the Premises, discounted at the Reference
Rate for the same period. If any law shall limit the amount of liquidated final
24
damages to less than the amount above agreed upon, Landlord shall be entitled to
the maximum amount allowable under such law.
(h) To the extent the same may lawfully be waived, Tenant
expressly, knowingly and voluntarily waives all constitutional, statutory and
common law bonding requirements, including the requirement under Section 83.12,
Florida Statutes (2003) that Landlord file a bond payable to Tenant in at least
double the sum demanded by Landlord (or double the value of the property sought
to be distrained), it being the intention of the parties that no bond shall be
required to be filed by Landlord in any such distress action. Tenant further
waives the right under Section 83.14, Florida Statutes (2003), to replevy
distrained property.
SECTION 7.02. BANKRUPTCY OR INSOLVENCY.
(a) If Tenant shall become a debtor in a case filed under Chapter
7 or Chapter 11 of the Bankruptcy Code and Tenant or Tenant's trustee shall fail
to elect to assume this Lease within 60 days after the filing of such petition
or such additional time as provided by the court, this Lease shall be deemed to
have been rejected. Immediately thereupon, Landlord shall be entitled to
possession of the Premises without further obligation to Tenant or Tenant's
trustee, and this Lease, upon the election of Landlord, shall terminate, but
Landlord's right to be compensated for damages (including, without limitation,
liquidated damages pursuant to any provision hereof) or the exercise of any
other remedies in any such proceeding shall survive, whether or not this Lease
shall be terminated.
(b) Neither the whole nor any portion of Tenant's interest in
this Lease or its estate in the Premises shall pass to any trustee, receiver,
conservator, assignee for the benefit of creditors or any other person or
entity, by operation of law or otherwise under the laws of any state having
jurisdiction of the person or property of Tenant, unless Landlord shall have
consented to such transfer or such transfer is permitted under this Lease. No
acceptance by Landlord of rent or any other payments from any such trustee,
receiver, assignee, person or other entity shall be deemed to constitute such
consent by Landlord nor shall it be deemed a waiver of Landlord's right to
terminate this Lease for any transfer of Tenant's interest under this Lease
without such consent.
(c) In the event of an assignment of Tenant's interests pursuant
to this Section 7.02, the right of any assignee to extend the Lease Term for an
Extended Term beyond the Primary Term or the then Extended Term of this Lease
shall be extinguished.
SECTION 7.03. ADDITIONAL RIGHTS OF LANDLORD.
(a) Except as provided in Section 7.01(g), no right or remedy of
Landlord hereunder shall be exclusive of any other right or remedy, but shall be
cumulative and in addition to any other right or remedy hereunder or now or
hereafter existing. Failure to insist upon the strict performance of any
provision hereof or to exercise any option, right, power or remedy contained
herein shall not constitute a waiver or relinquishment thereof for the future.
Receipt by Landlord of any Basic Rent, additional rent or other sums payable
hereunder with knowledge of the breach of any provision hereof shall not
constitute waiver of such breach, and no waiver by Landlord of any provision
25
hereof shall be deemed to have been made unless made in writing. Landlord shall
be entitled to injunctive relief in case of the violation, or attempted or
threatened violation, of any of the provisions hereof, or to a decree compelling
performance of any of the provisions hereof, or to any other remedy allowed to
Landlord by law or equity.
(b) Tenant hereby waives and surrenders for itself and all those
claiming under it, including creditors of all kinds, (i) any right and privilege
which it or any of them may have to redeem the Premises or to have a continuance
of this Lease after termination of Tenant's right of occupancy by order or
judgment of any court or by any legal process or writ, or under the terms of
this Lease, or after the termination of the Lease Term as herein provided, (ii)
the benefits of any law which exempts property from liability for debt and (iii)
any rights of redemption or reinstatement available by law or any successor law.
(c) If an Event of Default on the part of Tenant shall have
occurred hereunder and be continuing, then, without thereby waiving such
default, Landlord may, but shall be under no obligation to, take all action,
including, without limitation, entry upon the Premises, to perform the
obligation of Tenant hereunder immediately and without notice in the case of any
emergency as may be reasonably determined by Landlord and upon five business
days' notice to Tenant in other cases. All reasonable expenses incurred by
Landlord in connection therewith, including, without limitation, attorneys' fees
and expenses (including, without limitation, those incurred in connection with
any appellate proceedings), shall constitute additional rent under this Lease
and shall be paid by Tenant to Landlord upon demand.
(d) If Tenant shall be in default in the performance of any of
its obligations under this Lease beyond any applicable grace or cure period
hereunder, Tenant shall pay to Landlord, on demand, all customary and reasonable
expenses incurred by Landlord as a result thereof, including, without
limitation, reasonable attorneys' fees and expenses (including, without
limitation, those incurred in connection with any appellate proceedings) and any
additional commercially reasonable sums (including any late charge, default
penalties, interest and fees of the counsel of Landlord's Mortgagee) which are
payable by Landlord to its Mortgagee by reason of Tenant's late payment or
non-payment of Basic Rent.
(e) If Tenant shall fail to pay when due any Basic Rent,
additional rent or other sum required to be paid by Tenant hereunder, Landlord
shall be entitled to collect from Tenant as additional rent and Tenant shall pay
to Landlord, in addition to such Basic Rent, additional rent or other sum, a
late payment charge on the delinquency equal to the Late Rate from the date due
until paid. The Late Rate shall be interest on the past due amount at the lesser
of (i) that per annum rate of interest which exceeds by two (2) percentage
points the base rate most recently announced by Citibank, N.A., New York, New
York, as its Base Rate or (ii) the maximum rate permitted by applicable law. In
addition to all other remedies Landlord has hereunder, if Tenant shall fail to
pay any Basic Rent, additional rent or other sum, as and when required to be
paid by Tenant hereunder prior to the expiration for the period of payment
pursuant to subsection 7.01(a)(i)(1), Landlord shall be entitled to collect from
Tenant, and Tenant shall pay to Landlord, as additional rent, an amount equal to
1% of the amount shown in the notice as unpaid.
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ARTICLE VIII
SECTION 8.01. NOTICES AND OTHER INSTRUMENTS. All notices, offers,
consents and other instruments given pursuant to this Lease shall be in writing
and shall be sufficient if sent by United States Registered or Certified Mail,
Return Receipt Requested, postage prepaid, by recognized overnight delivery
service, or by confirmed facsimile to the address or facsimile number of such
party specified below, or to such other address or facsimile number as such
party shall have designated by similar written notice; and such notice shall be
deemed to have been given as of the first to occur of (i) actual receipt thereof
as proven by the records of the U.S. Postal Service, the private courier
delivering same, or facsimile delivery confirmation, or (ii) the expiration of
three (3) days from the date postmarked on the envelope containing said notice.
If to Landlord: NL VENTURES IV CENTURION, L.P.
c/o AIC Ventures
0000 Xxxxx Xxxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Tenant, to: SuperStock, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Facsimile (000) 000-0000
with copy to: Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Landlord and Tenant each may from time to time specify, by giving 15
days' notice to each other party, (i) any other address in the United States as
its address for purposes of this Lease and (ii) any other person or entity in
the United States that is to receive copies of notices, offers, consents and
other instruments hereunder.
27
SECTION 8.02 ESTOPPEL CERTIFICATES; FINANCIAL INFORMATION.
(a) Tenant will, upon 10 business days' written notice at the
request of Landlord, execute, acknowledge and deliver to Landlord a certificate
of Tenant, stating that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect as modified, and setting forth such modifications) and stating the dates
to which Basic Rent, additional rent and other sums payable hereunder have been
paid and either stating that to the knowledge of Tenant no default exists
hereunder or specifying each such default of which Tenant has knowledge and
whether or not Tenant is still occupying and operating the Premises and such
other information as Landlord shall reasonably request. Any such certificate may
be relied upon by any actual or prospective mortgagee or purchaser of the
Premises. Landlord will, upon 10 business days' written notice at the request of
Tenant, execute, acknowledge and deliver to Tenant a certificate of Landlord,
stating that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that this Lease is in full force and effect as
modified, and setting forth such modifications) and the dates to which Basic
Rent, additional rent and other sums payable hereunder have been paid, and
either stating that to the knowledge of Landlord no default exists hereunder or
specifying each such default of which Landlord has knowledge. Any such
certificate may be relied upon by Tenant or any actual or prospective assignee
or sublessee of the Premises.
(b) If Tenant is a publicly traded company, then Tenant shall
deliver to Landlord within ninety (90) days of the close of each fiscal year,
Tenant's Form 10-K, and within forty-five (45) days after the end of each of the
three remaining quarters Tenant's Form 10-Q, in each case as filed with the
Securities and Exchange Commission pursuant to the provisions of the Securities
Exchange Act of 1934, as amended, or any other law, unless such items are
available through XXXXX. If Tenant is not a publicly traded company, then Tenant
shall deliver to Landlord within ninety (90) days of the close of each fiscal
year, annual audited financial statements of Tenant (which, at a minimum, shall
include a balance sheet of Tenant and its consolidated subsidiaries, if any, as
of the end of such year, a statement of profits and losses of Tenant and its
consolidated subsidiaries, if any, for such year and a statement of cash flows
of Tenant and its consolidated subsidiaries, if any, for such year, setting
forth in each case, in comparative form, the corresponding figures for the
preceding fiscal year in reasonable detail and scope) prepared by a firm of
independent certified public accountants. Tenant shall also furnish to Landlord
within forty five (45) days after the end of each quarter unaudited internal
financial statements and all other quarterly reports of Tenant (which, at a
minimum, shall include a balance sheet of Tenant and its consolidated
subsidiaries, if any, as of the end of such quarter and statements of profits
and losses of Tenant and its consolidated subsidiaries, if any, for such
quarter, setting forth in each case, in comparative form, the corresponding
figures for the similar quarter of the preceding year in reasonable detail and
scope) certified by Tenant's chief financial officer. All annual financial
statements shall be accompanied (i) by an opinion of said accountants stating
that (A) there are no qualifications as to the scope of the audit (or if there
are qualifications, the nature thereof) and (B) the audit was performed in
accordance with GAAP, and (ii) by the affidavit of the president, a vice
president, or chief financial officer of Tenant, dated within five (5) days of
the delivery of such statement, stating that (1) the affiant knows of no Event
of Default, or event which, upon notice or the passage of time or both, would
become an Event of Default which has occurred and is continuing hereunder, or,
if any such event has occurred and is continuing, specifying the nature and
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period of existence thereof and what action Tenant has taken or proposes to take
with respect thereto and (2) except as otherwise specified in such affidavit, to
the best of such affiant's knowledge Tenant has fulfilled all of its obligations
under this Lease which are required to be fulfilled on or prior to the date of
such affidavit. Such information shall only be used by Landlord, Landlord's
Mortgagee, and their agents. Such information will not be disclosed publicly.
(c) Landlord and its agents and designees may from time to time
enter upon and examine the Premises and examine the records and books of account
and discuss the finances and business with the officers of the Tenant. Tenant
shall provide the requesting party with copies of any information to which such
party would be entitled in the course of a personal visit. Except in the event
of emergency, Tenant may designate an employee to accompany Landlord, its agents
and designees on such examinations. Tenant will provide, upon Landlord's
request, all information regarding the Premises, including, but not limited to,
a current rent roll, an operating statement reflecting all income from subleases
and all operating expenses for the Premises. Landlord and its agents and
designees may from time to time enter upon and examine the Premises and show the
Premises to prospective mortgagees and/or purchasers.
ARTICLE IX
SECTION 9.01 NO MERGER. There shall be no merger of this Lease or of
the leasehold estate hereby created with the fee estate in the Premises by
reason of the fact that the same person acquires or holds, directly or
indirectly, this Lease or the leasehold estate hereby created or any interest
herein or in such leasehold estate, as well as the fee estate in the Premises or
any interest in such fee estate.
SECTION 9.02 SURRENDER. Upon the expiration or termination of this
Lease, Tenant shall surrender the Premises to Landlord in as good repair and
condition as received under Section 2.01(a) except for any damage resulting from
Condemnation or Casualty and for normal wear and tear not required to be
repaired by Tenant.
SECTION 9.03 SEPARABILITY; BINDING EFFECT; GOVERNING LAW. Each
provision hereof shall be separate and independent, and the breach of any
provision by Landlord shall not discharge or relieve Tenant from any of its
obligations hereunder. Each provision hereof shall be valid and shall be
enforceable to the extent not prohibited by law. If any provision hereof or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remaining provisions hereof, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby. All provisions contained in
this Lease shall be binding upon, inure to the benefit of and be enforceable by
the successors and assigns of Landlord to the same extent as if each such
successor and assign were named as a party hereto. All provisions contained in
this Lease shall be binding upon the successors and assigns of Tenant and shall
inure to the benefit of and be enforceable by the permitted successors and
assigns of Tenant in each case to the same extent as if each successor and
assign were named as a party hereto. This Lease shall be governed by and
interpreted in accordance with the laws of the state in which the Premises are
located.
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SECTION 9.04 TABLE OF CONTENTS AND HEADINGS; INTERNAL REFERENCES. The
table of contents and the headings of the various paragraphs and exhibits of
this Lease have been inserted for reference only and shall not to any extent
have the effect of modifying the express terms and provisions of this Lease.
Unless stated to the contrary, any references to any Section, subsection,
Exhibit and the like contained herein are to the respective Section, subsection,
Exhibit and the like of this Lease.
SECTION 9.05 COUNTERPARTS. This Lease may be executed in two or more
counterparts and shall be deemed to have become effective when and only when one
or more of such counterparts shall have been executed by or on behalf of each of
the parties hereto (although it shall not be necessary that any single
counterpart be executed by or on behalf of each of the parties hereto, and all
such counterparts shall be deemed to constitute but one and the same instrument)
and shall have been delivered by each of the parties to the other.
SECTION 9.06 LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary provided in this Lease, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Lease by
Landlord, that there shall be absolutely no personal liability on the part of
any partner, director, member, officer or shareholder of Landlord, its
successors or assigns with respect to any of the terms, covenants and conditions
of this Lease, and any liability on the part of Landlord shall be limited solely
to the Premises and the proceeds thereof, such as insurance and condemnation
proceeds, such exculpation of liability to otherwise be absolute and without any
exception whatsoever.
SECTION 9.07 AMENDMENTS AND MODIFICATIONS. Except as expressly
provided herein, this Lease may not be modified or terminated except by a
writing signed by Landlord and Tenant.
SECTION 9.08 ADDITIONAL RENT. All amounts other than Basic Rent which
Tenant is required to pay or discharge pursuant to this Lease, including the
charge provided for by Section 7.03(e) hereof, shall constitute additional rent
which shall include, but not be limited to all reasonable costs and expenses of
Tenant and Landlord which are incurred in connection or associated with (A) the
use, occupancy, possession, operation, condition, design, construction,
maintenance, alteration, repair or restoration of any of the Premises, (B) the
performance of any of Tenant's obligations under this Lease, (C) the
prosecution, defense or settlement of any litigation involving the arising from
any of the Premises or this Lease, (D) the enforcement by Landlord, its
successors and assigns, of any of its right under this Lease, (E) any amendment
to or modification of this Lease made at the request of Tenant, (F) costs of
Landlord's counsel incurred in connection with any act undertaken by Landlord
(or its counsel) at the request of Tenant, or incurred in connection with any
act of Landlord performed on behalf of Tenant pursuant to this Lease.
SECTION 9.09 CONSENT OF LANDLORD. Except as specifically set forth in
this Lease, all consents and approvals to be granted by Landlord shall not be
unreasonably withheld or delayed, and Tenant's sole remedy against Landlord for
the failure to grant any consent shall be to seek injunctive relief unless
Landlord acted in bad faith. In no circumstance will Tenant be entitled to
damages with respect to the failure to grant any consent or approval unless
Landlord acted in bad faith.
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SECTION 9.10 QUIET ENJOYMENT. Landlord agrees that, subject to the
rights of Landlord under this Lease, Tenant shall hold and enjoy the Premises
during the term of this Lease, free from any hindrance or interference from
Landlord or any party claiming by, through or under Landlord.
SECTION 9.11 HOLDING OVER. If Tenant remains in possession of the
Premises, or any part thereof, after the expiration or other termination of the
Lease Term, without Landlord's express written consent, Tenant shall be guilty
of an unlawful detention of the Premises and shall be liable to Landlord for
damages for use of the Premises during the period of such unlawful detention at
a rate equal to 150% of the Basic Rent and all other amounts which would be
payable during the Term hereof.
SECTION 9.12 FINANCING. If Landlord desires to obtain or refinance
any loan, Tenant shall, at Landlord's expense, execute any and all documents
that such Mortgagee reasonably requires in connection with such financing,
including any subordination, non-disturbance and attornment agreement ("SNDA" or
"Subordination, Non-Disturbance and Attornment Agreement"), so long as the same
do not adversely affect any right, benefit or privilege of Tenant under this
Lease or increase Tenant's obligations under this Lease.
SECTION 9.13 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT.
Notwithstanding anything to the contrary in this Lease, this Lease and Tenant's
interest hereunder shall be subject, subordinate and inferior to any mortgage or
other security instrument granted or entered into by Landlord in connection with
the loan by which Landlord acquired the Premises from Tenant, and any mortgage
or other security instrument hereafter placed upon the Premises by Landlord, and
to any and all advances made or to be made thereunder, to the interest thereon,
and all renewals, replacements and extensions thereof, provided that any such
mortgage (or a separate SNDA entered into between Tenant and the Mortgagee in
whose favor such mortgage was granted) shall provide for the recognition of this
Lease and all Tenant's rights hereunder unless and until an Event of Default
exists and Landlord shall have the right to terminate this Lease pursuant to any
applicable provision hereof.
SECTION 9.14 DISCLAIMER OF PURCHASE RIGHTS. Except for the limited
rights of Tenant to acquire title to the Premises in accordance with the
provisions of Sections 6.02(b) and 9.21 hereof, nothing in this Lease is
intended or shall operate to grant to Tenant any right of first refusal, right
of first offer, purchase option, or similar right to elect to purchase or
acquire the Premises of any portion thereof, and Tenant hereby expressly waives
any and all such rights.
SECTION 9.15 SECURITY DEPOSIT. Tenant will deposit or cause to be
deposited with Landlord or Landlord's Mortgagee, as Landlord shall designate,
(a) on or before the date hereof, Five Hundred and Ten Thousand and No/100
Dollars ($510,000.00), and (b) on the first day of each October, January, April,
and July beginning on October 1, 2004 up to and including July 1, 2006, Thirty
Thousand and No/100 Dollars ($30,000.00), for a total of Seven Hundred and Fifty
Thousand and No/100 Dollars ($750,000.00) as a "Security Deposit" for its full
and faithful performance of the terms of this Lease, it being expressly
understood that such Security Deposit shall not be considered an advance payment
of any Basic Rent, additional rent or other sums payable under this Lease or a
measure of Landlord's damages in case of an Event of Default. Payment of said
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Security Deposit shall be satisfied by Tenant's deposit of cash or a Letter of
Credit in said amounts. Tenant shall have the right to freely substitute cash
for a Letter of Credit or vice versa, and if paid in cash, such Security Deposit
shall be held in an interest bearing account bearing interest at no less than
money market rates. Any interest earned shall be paid to Tenant on each
anniversary of the date hereof, so long as there is no uncured Event of Default.
If Landlord transfers its interest in the Premises during the Lease Term to a
transferee who assumes Landlord's obligations hereunder and to whom the Security
Deposit is transferred, Landlord may assign the Security Deposit to the
transferee and, thereafter, Landlord shall have no further liability for the
return of such Security Deposit to Tenant. For the purposes herein, "Letter of
Credit" shall mean an irrevocable standby letter of credit issued to Landlord by
a financially sound national banking association or state chartered bank having
assets in excess of $50,000,000,000 and otherwise reasonably acceptable to
Landlord, the proceeds of which shall be available to Landlord without the need
for Landlord to satisfy any requirements or conditions whatsoever other than
delivery of (a) the original Letter of Credit along with Landlord's sight draft
to the issuing institution with reference to the appropriate letter of credit
number for the Letter of Credit, as set forth therein and (b) (i) a certificate
signed by Landlord certifying that an Event of Default has occurred and is
continuing under the Lease, or (ii) a certificate signed by Landlord certifying
that Tenant has failed to renew the Letter of Credit at least thirty (30) days
prior to its stated expiration date. The Letter of Credit shall be valid for an
initial period of one (1) year from and after the date of its issuance and, by
its express terms, shall provide (i) that its term shall automatically be
extended for successive one (1) year periods unless at least thirty (30) days
prior to the expiration of the initial one year term or any one year extension
(as applicable) the issuer provides Landlord with written notification that it
will not be extended, and (ii) that Landlord may assign (whether by way of
outright or collateral assignment) all or any portion of its interest in the
Letter of Credit to Landlord's Mortgagee or any other person (including, without
limitation, any third party purchaser).
SECTION 9.16 GUARANTY. Simultaneously with the execution hereof,
Tenant shall cause a21, Inc., a Texas corporation, to execute and deliver to
Landlord that certain Guaranty of Lease substantially in the form attached
hereto as Exhibit E and made a part hereof for all purposes.
SECTION 9.17 TENANT'S FINANCIAL COVENANTS AND RELEASE OF SECURITY
DEPOSIT. On August 15, 2005 ("First Review Date") and on each anniversary of the
First Review Date thereafter, if (i) Tenant is profitable on a GAAP basis (i.e.,
GAAP net income greater than zero per Tenant's form 10-K's and 10-Q's) for the
year immediately prior to the First Review Date or anniversary thereof, as
applicable, and for three of such year's four quarters; and (ii) Tenant then has
a Tangible Net Worth in excess of $6 million, then Landlord shall release
$100,000 of the Security Deposit each year Tenant meets such criteria. For the
purposes of this Lease and the Guaranty, "Tangible Net Worth" shall mean at any
date Tenant's total stockholders' equity as shown on Tenant's most recent form
10-K's and 10-Q's, less, if Tenant is not public, any amount reported as
goodwill, all as determined in accordance with GAAP. This potential annual
reduction of the Security Deposit will continue so long as there is no prior
uncured Event of Default and until such time that the Security Deposit is
reduced to $300,000. Notwithstanding the foregoing, Landlord agrees to release
all of the Security Deposit (and there shall be no further requirement for a
Security Deposit) once Tenant attains (i) an investment credit rating of BBB(-)
or better, and (ii) has a Tangible Net Worth equal to or greater than
$20,000,000. If at any time Tenant is not a publicly traded company, then
Tangible Net Worth shall be determined based on Tenant's most recent audited
financial reports.
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SECTION 9.18 FAIR MARKET VALUE.
(a) Whenever a determination of Fair Market Value is required
pursuant to any provision of this Lease, such Fair Market Value shall be
determined in accordance with the following procedures:
(i) Landlord and Tenant shall endeavor to agree upon such Fair
Market Value within fifteen (15) days after the date (the "Initial Date") on
which Tenant provides Landlord with the Notice of Intention pursuant to Section
6.02(b). Upon reaching any such agreement, the parties shall execute a written
agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement
within fifteen (15) days after the Initial Date, Tenant shall within twenty (20)
days after the Initial Date select an appraiser and notify Landlord in writing
of the name, address and qualifications of such appraiser. Within five (5) days
following Landlord's receipt of Tenant's notice of the appraiser selected by
Tenant, Landlord shall select an appraiser and notify Tenant of the name,
address and qualifications of such appraiser. Such two appraisers shall endeavor
to agree upon Fair Market Value based on a written appraisal made by each of
them (and given to Landlord by Tenant). If such two (2) appraisers shall agree
upon a Fair Market Value, the amount of such Fair Market Value as so agreed
shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two (2) appraisers shall be unable to agree upon
a Fair Market Value within twenty (20) days after the selection of an appraiser
by Landlord, then such appraisers shall advise Landlord and Tenant of their
respective determination of Fair Market Value and shall select a third (3rd)
appraiser to make the determination of Fair Market Value. The selection of the
third (3rd) appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two (2) appraisers shall be unable to agree upon
the designation of a third (3rd) appraiser within ten (10) days after the
expiration of the twenty (20) day period referred to in clause (iii) above, or
if such third (3rd) appraiser does not make a determination of Fair Market Value
within twenty (20) days after his selection, then such third (3rd) appraiser or
a substituted third (3rd) appraiser, as applicable, shall, at the request of
either party hereto, be appointed by the seniormost judge of the United States
District Court, with jurisdiction over the Premises. The determination of Fair
Market Value made by the third (3rd) appraiser appointed pursuant hereto shall
be made within twenty (20) days after such appointment.
(v) If a third (3rd) appraiser is selected, Fair Market Value
shall be the average of the determination of Fair Market Value made by the third
(3rd) appraiser and the determination of Fair Market Value made by the appraiser
(selected pursuant to Section 9.18(a)(ii) hereof) whose determination of Fair
Market Value is nearest to that of the third (3rd) appraiser. Such average shall
be binding and conclusive upon Landlord and Tenant.
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(vi) All appraisers selected or appointed pursuant to this
Section 9.18(a) shall (A) be independent qualified MAI appraisers, (B) have no
right, power or authority to alter or modify the provisions of this Lease, and
(C) be registered in the State of Florida if the State of Florida provides for
or requires such registration. The cost of the procedure described in this
Section 9.18(a) shall be borne by Tenant.
(vii) In determining Fair Market Value the appraisers shall
disregard capital improvements paid for by Tenant during the Term.
(b) If, by virtue of any delay, Fair Market Value is not
determined by the date set for closing, then the date on which the closing shall
be held shall be extended as reasonably necessary.
SECTION 9.19 SHORT FORM MEMORANDUM OF LEASE. Upon Landlord's or
Tenant's request, the parties shall record a "short form" Memorandum of Lease
identifying the Term granted to Tenant by this Lease, and any other terms to
which the parties may agree. Any recording costs associated with the memorandum
or short form of this Lease shall be borne by Tenant. Upon the expiration or
earlier termination of the Lease, Tenant shall promptly execute and deliver to
Landlord an instrument, in recordable form, wherein Tenant acknowledges the
expiration or earlier termination of the Lease.
SECTION 9.20 LIMITATION ON DAMAGES. Notwithstanding any other
provision to the contrary set forth in this Lease, no party hereto shall be
liable to any other party hereto for any incidental, consequential, special,
exemplary or punitive damages arising out of or in connection with this Lease,
regardless of whether the breaching or defaulting party knew or should have
known of the possibility of such damages, and without regard to the nature of
the claim or the underlying theory or cause of action, and each party hereby
waives its right to all such remedies and damages.
SECTION 9.21 RIGHT OF FIRST OFFER. Prior to marketing the Premises
for sale, Landlord shall give Tenant written notice of its desire to sell the
Premises, and shall grant Tenant thirty (30) days from the date of such written
notice to make an offer for the purchase of the Premises (if Tenant desires to
do so), which offer Landlord may accept or reject in its sole discretion. If
Landlord does not receive Tenant's written offer on or before expiration of such
thirty (30) day period, then Landlord shall be free to market, contract for and
ultimately sell the Premises without liability or obligation to Tenant.
SECTION 9.22 RADON GAS DISCLOSURE. Florida Statutes 404.056(5)
requires the following statement: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county health department.
SECTION 9.23 LANDLORD'S ENTRY ONTO PREMISES. Landlord, and its agents
and designees, have the right to enter upon the Premises at various times and
under various circumstances under this Lease, including the rights of entry set
34
forth in Sections 2.01(a), 5.06(c), and 8.02(c). Notwithstanding anything herein
to the contrary, Landlord hereby agrees that any such entry shall be (i)
conditioned upon Landlord giving Tenant reasonable prior notice, and (ii)
conducted at reasonable times during normal business hours (except in the event
of an emergency, in which case no notice shall be required and no limitation as
to time for entry shall be applicable). Landlord shall also take reasonable
measures to minimize interference with Tenant's operations, shall maintain
adequate liability insurance during any such entry, and shall repair any damage
to the Premises directly caused by Landlord.
[Signatures of Landlord and Tenant Follow on Next Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first above written.
NL VENTURES IV CENTURION, L.P.
Date: June 30, 2004
By: NL Ventures IV Centurion Management,
L.L.C., its sole General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
36
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first above written.
TENANT:
SUPERSTOCK, INC., a Florida corporation
Date: June 30, 2004
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
----------------------------------------
Title: President and Chief Operating Officer
---------------------------------------
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EXHIBIT A
LEGAL DESCRIPTION
A portion of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 27 East, Xxxxx County, Florida,
together with a portion of Tract B, Deerwood Park South, as recorded in Plat
Book 49, Pages 29 and 29A of the Current Public Records of Xxxxx County,
Florida, all being more particularly described as follows: For a point of
beginning, commence at the northerly most corner of said Tract B; thence north
44(degree)57'50" east, along the southeasterly right of way line of Centurion
Court (a variable width right of way as now established), a distance of 54.36
feet to the point of curvature of a curve to the left, said curve being concave
to the northwest, having a radius of 150.00 feet and a central angle of
35(degree)15'55"; thence northeasterly, along said southeasterly right of way
line and around the arc of said curve, a distance of 92.32 feet, said arc being
subtended by a chord which bears north 27(degree)19'52" east, a distance of
90.87 feet to the point of reverse curvature of a curve concave to the
southeast, having a radius of 30.00 feet and a central angle of
89(degree)57'36"; thence northeasterly, around the arc of said curve, a distance
of 47.10 feet to its point of tangency with the southerly right of way line of
Centurion Parkway, as now established for a width of 100 feet, said arc being
subtended by a chord which bears north 54(degree)40'43" east, a distance of
42.41 feet; thence along said southerly right of way line of Centurion Parkway
and around the arc of a curve lying concave to the northeast, having a radius of
765.00 feet and a central angle of 10(degree)22'01", for an arc distance of
138.42 feet to the point of tangency of said curve, said arc being subtended by
a chord which bears south 85(degree)31'30" east, a distance of 138.23 feet;
thence on a tangent bearing of north 89(degree)17'30" east, along said southerly
right of way line and along the easterly prolongation thereof, for a distance of
116.05 feet; thence south 00(degree)42'30" east, a distance of 171.73 feet;
thence north 89(degree)17'30" east, a distance of 4.61 feet; thence south
08(degree)29'56" west, a distance of 62.94 feet; thence south 46(degree)39'35"
west, a distance of 188.30 feet; thence south 45(degree)02'10" east, a distance
of 75.13 feet to the easterly most corner of said Tract B; thence south
48(degree)10'44" west along the southeasterly line of said Tract B, a distance
of 182.85 feet; thence south 89(degree)17'30" west, a distance of 225.97 feet;
thence north 45(degree)02'10" west, a distance of 230.72 feet to said
southeasterly right of way line of Centurion Court; thence north
44(degree)57'50" east along said southeasterly right of way line, a distance of
344.21 feet to the point of beginning; being the same lands described as
Exhibits A and C in Official Records Volume 8576, Page 1908.
EXHIBIT B
PERMITTED EXCEPTIONS
1. Zoning regulations and ordinances which are not violated by the
existing structures or present use thereof.
2. The following:
a. Notice of Development Order recorded in Official Records Book 6408,
page 118; as modified by Restatement of the Protective Covenants of
Deerwood Park recorded in Official Records Book 6575, page 2276 (which
Restatement completely restates and amends certain protective covenants
recorded in Official Records Book 6087, page 1669 of the current public
records of Xxxxx County, Florida); as amended by Supplement to
Protective Covenants recorded in Official Records Book 6575, page 2305
and Designation of Successor Developer recorded in Official Records
Book 6575, page 2312, as also modified by Allocations of Development
Rights recorded in Official Records Book 6575, page 2315, and in
Official Records Book 6576, page 2376, and in Official Records Book
6863, page 543, and in Official Records Book 7029, page 1243, and in
Official Records Book 7068, page 1896, and in Official Records Book
7068, page 1908 and in Official Records Book 7350, page 122, and in
Official Records Book 7362, page 750, and in Official Records Book
7458, page 1990, and in Official Records Book 7653, page 1383, and in
Official Records Book 7852, page 673, and in Official Records Book
8032, page 1204, and in Official Records Book 8085, page 1997, and in
Official Records Book 8184, page 2096, which Allocations have been
modified by Official Records Book 7588, page 1639, and in Official
Records Book 7653, page 1358, and modified by First Amendment to
Supplement to Protective Covenants recorded in Official Records Book
6863, page 539, and further modified by First Declaration of Conversion
recorded in Official Records Book 6863, page 541, and Second
Declaration of Conversion of Development Rights recorded in Official
Records Book 7362, page 730, and by Third Declaration of Conversion
recorded in Official Records Book 7653, page 1362, and Fourth
Declaration of Conversion recorded in Official Records Book 8032, page
1194, and further modified by Variation to Building Site Requirements
recorded in Official Records Book 7012, page 1849 and modified by
Approval of Plans in Official Records Book 7343, page 254, and further
modified by First Amendment to Restatement of Protective Covenants
recorded in Official Records Book 7362, page 739, and further amended
by Amendment No. 1 to Lake Easement Agreement, et al., recorded in
Official Records Book 7029, page 1224, as modified by Seventeenth
Allocation of Development Rights - Deerwood Park recorded in Official
Records Book 8576, page 1916, and further modified by Consent and Grant
to User recorded in Official Records Book 7448, page 768 and modified
by Option Agreement recorded in Official Records Book 7653, page 1390,
all of the current public records of Xxxxx County, Florida (deleting
therefrom any restrictions indicating any preference, limitation or
discrimination based on race, color, religion, sex, handicap, familial
status or national origin).
b. Restrictive Covenant regarding the Development Order set forth under
Item 2 of Exhibit B in that certain Special Warranty Deed dated March
20, 1997 and recorded in Official Records Book 8576, page 1908 of the
current public records of Xxxxx County, Florida.
x. Xxxxx of Easement from Southside Utilities, Inc. to Southern Xxxx
Telephone and Telegraph Company recorded in Official Records Book 6897,
page 781, of the current public records of Xxxxx County, Florida.
x. Xxxxx of Easement from Southside Utilities, Inc. to Jacksonville
Electric Authority recorded in Official Records Book 6936, page 339, of
the current public records of Xxxxx County, Florida.
e. Easement between G.L. National, Inc. and Southside Utilities, Inc.
and Jacksonville Electric Authority, recorded in Official Records Book
6936, page 346, of the current public records of Xxxxx County, Florida.
x. Xxxxx of Easement from Southside Utilities, Inc. to Southside
Utilities, Inc. recorded in Official Records Book 6971, page 1120, of
the current public records of Xxxxx County, Florida.
g. Declaration of Easement (for stormwater drainage), recorded in
Official Records Book 7362, page 762 and modified by Relocation of
Easement recorded in Official Records book 7627, page 1261, of the
current public records of Xxxxx County, Florida.
h. Reservations of Easements as reserved in that certain Warranty Deed
dated November 16, 1992 and recorded in Official Records Book 7458,
page 1978, of the current public records of Xxxxx County, Florida.
i. Easement granted in favor of City of Jacksonville recorded in
Official Records Book 7643, page 2365, of the current public records of
Xxxxx County, Florida.
j. Adoption and Dedication as shown on the plat of Deerwood Park South,
recorded in Plat Book 49, pages 29 and 29A of the current public
records of Xxxxx County, Florida.
k. The following matters as shown on the Plat of Deerwood Park South:
(1) A 7.5 by 30-foot JEA easement along a northerly portion of
the front property line.
(2) A 10 by 20-foot JEA easement along a northerly portion of
the front property line.
EXHIBIT C
BASIC RENT SCHEDULE
INTERIM TERM
June 30, 2004 $2,083.00
PRIMARY TERM (PER MONTH)
Year 1 $62,500.00
Year 2 $63,750.00
Year 3 $65,025.00
Year 4 $66,326.00
Year 5 $67,652.00
Year 6 $69,343.00
Year 7 $71,077.00
Year 8 $72,854.00
Year 9 $74,675.00
Year 10 $76,542.00
Year 11 $78,456.00
Year 12 $80,417.00
Year 13 $82,428.00
Year 14 $84,488.00
Year 15 $86,600.00
Year 16 $88,765.00
Year 17 $90,984.00
Year 18 $93,259.00
Year 19 $95,590.00
Year 20 $97,980.00
FIRST EXTENDED TERM (PER MONTH)
Year 21 $100,430.00
Year 22 $102,941.00
Year 23 $105,514.00
Year 24 $108,152.00
Year 25 $110,856.00
SECOND EXTENDED TERM (PER MONTH)
Year 26 $113,627.00
Year 27 $116,468.00
Year 28 $119,379.00
Year 29 $122,364.00
Year 30 $125,423.00
EXHIBIT D
SEVERABLE PROPERTY
All apparatus, personal property, trade fixtures, inventory,
equipment, machinery, fittings, furniture, furnishings, chattel, materials and
supplies located on and used in, or related to Tenant's business, including, but
not limited to, mainframe computers, kitchen equipment and telephone and similar
systems and articles of personal property of every kind and nature whatsoever,
and any additions, replacements, accessions and substitutions thereto or
therefor, and all proceeds of all of the foregoing.
EXHIBIT E
GUARANTY OF LEASE
THIS GUARANTY OF LEASE ("Guaranty") is made and given effective as of
_______________, by _______________________ ("Guarantor").
RECITALS
A. NL Ventures _____________________, L.P., a Texas limited
partnership ("Landlord"), proposes to purchase real property located in
_____________________, being more particularly described in Exhibit A attached
hereto and made a part hereof for all purposes, together with all improvements
thereon and all appurtenances thereto (collectively, the "Property") from
____________________________________ ("Tenant"), and to immediately lease the
Property back to Tenant pursuant to that certain Lease Agreement dated of even
date herewith by and between Landlord and Tenant (the "Lease"), to which
reference is here made for all of the terms and provisions thereof.
B. Landlord is unwilling to purchase the Property or enter into the
Lease with Tenant unless Guarantor executes and delivers to Landlord this
Guaranty; therefore, Guarantor executes and delivers this Guaranty to Landlord
in order to induce Landlord to purchase the Property and to enter into the Lease
with Tenant.
C. Guarantor has received a copy of the Lease, has examined the Lease
and is familiar with all of the terms, covenants and provisions contained
therein. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Lease.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of the sum of TEN and NO/100 DOLLARS ($10.00) paid to Guarantor,
the receipt and sufficiency of which are hereby expressly acknowledged, and for
other good and valuable consideration, Guarantor hereby agrees with Landlord as
follows:
1. Guarantor unconditionally guarantees the payment of all sums, costs,
expenses, charges, payments and deposits (including sums payable as damages upon
a default under the Lease) which are at any time payable by Tenant under the
Lease in accordance with the Lease, and the performance of each covenant and
condition of the Lease to be performed or observed by Tenant (all of the
foregoing are sometimes herein collectively referred to as the "Guaranteed
Obligations").
2. This Guaranty is an unconditional, irrevocable and absolute guarantee of
payment and performance. If for any reason any provision of the Lease shall not
be faithfully performed or observed by Tenant as required thereby, or if the
rental or any other sums, costs, expenses, charges, payments or deposits, or any
part thereof, payable under the Lease shall not be paid when due in accordance
with the provisions of the Lease, subject to any applicable notice, grace and
cure periods, Guarantor will promptly perform or observe, or cause the
performance or observance of each such provision, and will immediately pay such
rental or other sums, costs, expenses, charges, payments or deposits then due
and payable to the entity entitled thereto pursuant to the provisions of the
Lease. Guarantor also agrees to pay to such entity the costs and expenses of
collecting any such rental or any other sum, cost, expense, charge, payment or
deposit at any time payable by Tenant under the Lease. Landlord shall have the
right to enforce this Guaranty regardless of the receipt by Landlord of
additional security or the enforcement of any remedies against such security or
the release of such security.
3. Anything in this Guaranty to the contrary notwithstanding, Guarantor shall
not take any action, or cause or permit any person or entity to take any action,
and Guarantor hereby irrevocably waives any and all rights which it may
otherwise have at law or in equity, to enjoin, interfere with, restrict or
limit, in any way whatsoever, any demand or any payment to Landlord under the
Lease or this Guaranty.
4. Guarantor's obligations under this Guaranty shall in no way be affected or
impaired by reason of the happening from time to time of any of the following
with respect either to the Lease or to this Guaranty, even without notice to or
the further consent of Guarantor:
(a) the waiver by Landlord or its successors or assigns of the
performance or observance by Tenant of any provision of the Lease;
(b) the extension of the time for payment by Tenant of any rental or
any sums, costs, expenses, charges, payments or deposits or any part thereof,
owing or payable under the Lease, or of the time for performance by Tenant of
any other obligations under or arising out of or on account of the Lease or any
extension or renewal thereof;
(c) the assignment, subletting or mortgaging or the purported
assignment, subletting or mortgaging of all or part of Tenant's interest in the
Lease, whether or not permitted by the Lease;
(d) the modification or amendment (whether material or otherwise) of
any obligation of Tenant as set forth in the Lease;
(e) the taking or the omission of any actions referred to in the
Lease;
(f) the failure, omission or delay of Landlord to enforce, assert or
exercise any right, power or remedy conferred on Landlord in the Lease or by law
or any action on the part of Landlord granting indulgence or extension in any
form;
(g) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceeding affecting Tenant or any of its assets, or the
disaffirmance of the Lease in any such proceeding;
(h) the release of Tenant from performance or observance of any
provision of the Lease by operation of law;
(i) the receipt and acceptance by Landlord of notes, checks or other
instruments for the payment of money made by Tenant, or any extensions or
renewals thereof, except to the extent such payments reduce the Guaranteed
Obligations; or
(j) the renewal or extension of the term of the Lease.
5. Notice of acceptance of this Guaranty and any obligations or liabilities
contracted or incurred by Tenant are all hereby waived by Guarantor.
6. This Guaranty shall be governed by and construed in accordance with the laws
of the state in which the Property is located, and Guarantor hereby expressly
waives any and all protections or rights afforded to it as a guarantor under
Florida law.
7. This Guaranty may not be modified or amended except by written agreement
executed by Guarantor with the consent in writing of Landlord and any attempted
modification or amendment without such consent by Landlord shall be void and
without force and effect.
8. No waiver by Landlord of the payment by Guarantor of any of its obligations
contained in this Guaranty, nor any extension of time for the payment by
Guarantor of any such obligations, shall affect or impair this Guaranty or
constitute a waiver or relinquishment of any rights of Landlord hereunder for
the future. No action brought under this Guaranty against Guarantor and on
recovery had in pursuance thereof shall be any bar or defense to any further
action or recovery which may be brought or had under this Guaranty by reason of
any further default of Tenant.
9. All of the provisions of this Guaranty shall inure to the benefit of Landlord
and its grantees, successors and assigns, and shall inure to the benefit of any
future owner of the Property; and all of the provisions of this Guaranty shall
be binding upon the Guarantor and its successors and assigns. Without limiting
the generality of the foregoing, the provisions of this Guaranty shall inure to
the benefit of and be enforceable by any mortgagee of Landlord which is the
holder of a note secured by a lien on the Property and further secured by an
assignment of leases which assigns all of Landlord's right, title and interest
in and to the Lease. No attornment by Tenant in favor of any such mortgagee
shall diminish any of Guarantor's obligations hereunder, and following any such
attornment, Guarantor's obligations shall continue in full force and effect as
if the mortgagee were the original Landlord pursuant to the Lease.
10. Until all obligations of every nature of Guarantor hereunder shall have been
performed in full, Guarantor shall have no right of subrogation and waives any
right to enforce any remedy which Landlord now has or may hereafter have against
Tenant; and Guarantor waives any benefit of and any right to participate in any
security now or hereafter held by Landlord.
SECTION 9.24 NOTICES AND OTHER INSTRUMENTS. All notices, offers,
consents and other instruments given pursuant to this Guaranty shall be in
writing and shall be sufficient if sent by United States Registered or Certified
Mail, Return Receipt Requested, postage prepaid, by recognized overnight
delivery service, or by confirmed facsimile to the address or facsimile number
of such party specified below, or to such other address or facsimile number as
such party shall have designated by similar written notice; and such notice
shall be deemed to have been given as of the first to occur of (i) actual
receipt thereof as proven by the records of the U.S. Postal Service, the private
courier delivering same, or facsimile delivery confirmation, or (ii) the
expiration of three (3) days from the date postmarked on the envelope containing
said notice.
If to Landlord: NL VENTURES IV CENTURION, L.P.
c/o AIC Ventures
0000 Xxxxx Xxxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Guarantor, to: a21, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Facsimile (000) 000-0000
with copy to: Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Landlord and Guarantor each may from time to time specify, by giving
15 days' notice to each other party, (i) any other address in the United States
as its address for purposes of this Lease and (ii) any other person or entity in
the United States that is to receive copies of notices, offers, consents and
other instruments hereunder.
11. The liability of Guarantor, in accordance with the other provisions of the
Guaranty, is coextensive with that of Tenant and also joint and several, and
action may be brought against Guarantor and carried to final judgment either
with or without making Tenant a party thereto.
12. All of Landlord's rights and remedies under the Lease and under this
Guaranty shall be distinct, separate and cumulative and no such right or remedy
shall be exclusive of or a waiver of any of the others.
13. Guarantor will pay to Landlord all of Landlord's out-of-pocket expenses
incurred in enforcing this Guaranty, including, but not limited to reasonable
attorneys' fees.
14. The Recitals in this Guaranty are incorporated into this Guaranty for all
purposes.
15. This Guaranty shall terminate, never to be reinstated, once Tenant attains
(i) an investment credit rating of BBB(-) or better, and (ii) a Tangible Net
Worth (as defined in the Lease) equal to or greater than $20,000,000.00, as
shown on Tenant's form 10-K or 10-Q, prepared in accordance with GAAP. If at any
time Tenant is not a publicly traded company, then Tangible Net Worth shall be
determined based on Tenant's most recent audited financial reports.
[Signature of Guarantor on Next Page]
IN WITNESS WHEREOF, Guarantor has executed this Guaranty, as of the
day and year first above written.
GUARANTOR:
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STATE OF ss.
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ss.
COUNTY OF ss.
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BEFORE ME, the undersigned authority, on this day personally appeared
___________________, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ________ day of
________________, 2004.
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Notary Public, State of
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(Print Name of Notary)
My Commission Expires:
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EXHIBIT A
PROPERTY DESCRIPTION
EXHIBIT B
PERMITTED EXCEPTIONS
EXHIBIT C
INDEX OF DEFINITIONS
