AMENDED AND RESTATED DEED OF LEASE
THIS AMENDED AND RESTATED DEED OF LEASE is made as of
this day of January, 2003, by and between LIBERTY PROPERTY
LIMITED PARTNERSHIP, a Pennsylvania limited partnership, or
assigns, ("LANDLORD") and XXXXXXXXX XXXXX, INC., a Florida
corporation, ("TENANT").
RECITALS
A. Landlord's predecessor, Arden Associates, L.P.
("ARDEN"), as landlord, entered into that certain Deed of
Lease dated as of October 26, 1990, as amended by First
Amendment to Lease dated as of December 28, 1990, Second
Amendment to Lease dated as of July 18, 1991, Letter
Agreement dated September 1, 1992, Letter Agreement dated
April 12, 2000, and Third Amendment to Lease dated August
14, 2000 (the "ORIGINAL LEASE") with Conopco, Inc., a New
York corporation ("CONOPCO"), as tenant, and Unilever
Capital, Inc. ("UNILEVER CAPITAL"), as guarantor, for the
lease of a parcel of real property containing 27.257 acres
(the "PROPERTY") located in the Roanoke Centre for Industry
and Technology (the "PARK") in the City of Roanoke,
Virginia. The Property is described on Exhibit A hereto and
is shown on the plat dated June 5, 1990, entitled "Plat of
Survey, Revising Map Book 1, Page 000, Xxxxxxx Xxxxxx For
Industry and Technology, Section 2 Parcel 4", a copy of
which plat is attached hereto as Exhibit A1.
B. In accordance with the terms of the Original Lease,
Arden constructed on the Property an office/warehouse/light
manufacturing facility containing approximately 265,082
square feet for lease to Conopco on the terms and conditions
set forth therein.
C. Under the Original Lease, Landlord has now succeeded
to the interests of Arden, Tenant has succeeded to the
interests of Conopco, and Unilever United States, Inc. has
succeeded to the interests of Unilever Capital, guarantor
under the Original Lease.
D. Landlord and Tenant now desire to amend and restate
in its entirety the Original Lease to provide for the
construction by Landlord of a 134,100 square foot addition
to the existing building on the Property and certain other
terms and conditions as provided herein.
NOW, THEREFORE, for and in consideration of the
premises and the covenants herein contained, Landlord and
Tenant agree to amend and restate the Original Lease upon
the following terms and conditions effective on the
Commencement Date, as defined below.
1. Premises. Landlord hereby leases to Tenant and
Tenant hereby takes from Landlord the Property and
approximately 399,182 square feet of building for use as an
office/warehouse/light manufacturing facility, including the
existing 265,082 square foot building and the 134,100 square
foot addition to be constructed by Landlord on the Property,
together with all improvements therein and thereon belonging
or pertaining to said premises, including all rights,
privileges, easements and appurtenances belonging or
pertaining thereto, all of which are hereinafter referred to
as the "PREMISES".
2. Term.
(a). The initial term of this lease and the Tenant's
obligation to pay Rent hereunder shall commence on the
Commencement Date. The initial term of this lease shall
terminate on the last day of the tenth consecutive full
lease year. The term "LEASE YEAR" as used herein shall mean
a period of 12 consecutive full calendar months, provided
the first lease year shall begin on the Commencement Date.
The first lease year shall end on the last day of the
twelfth full calendar month following the Commencement Date.
Each succeeding lease year shall commence on the anniversary
of the first lease year or, if the Commencement Date is not
the first day of a calendar month, on the first day of the
calendar month immediately following the Commencement Date.
(b) Provided that at the time of the giving of Tenant's
renewal notice and at the end of the initial term of this
lease there is no continuing event of default hereunder,
then Tenant (but not any assignee or subtenant for whom
Landlord's consent is required pursuant to Section 20(a)) is
hereby granted an option to renew this lease for one
additional term of five (5) years upon Tenant's notifying
Landlord in writing of its election to renew at least one
year prior to the expiration of the initial term. During
such renewal term, if exercised, this lease shall be on the
same terms and conditions contained herein except for the
Minimum Annual Rent as provided in Exhibit B hereto and
except that the renewal term shall contain no further
renewal options unless expressly granted by Landlord in
writing.
(c) The initial term and, if exercised, the renewal
term shall be collectively referred to herein as the "TERM".
3. Rent.
(a) Tenant agrees to pay to Landlord, without
deduction or offset, minimum annual rental ("MINIMUM ANNUAL
RENT"), in the amounts set forth on Exhibit B hereto,
payable in lawful money of the United States of America in
equal monthly installments during the Term of this lease.
Minimum Annual Rent shall be paid in advance, on or before
the first day of each month during the Term of this lease
(the "DUE DATE").
(b) The Tenant shall pay all Rent and other charges to
be paid by the Tenant hereunder to the Landlord at its
address set forth in Section 29, or to such other
individual, firm or corporation and at such other place as
may be designated by the Landlord. If the Commencement Date
is not the first day of a calendar month, the Tenant shall
also pay on the first day of the first calendar month
following the Commencement Date a proportionate amount of
the Minimum Annual Rent for the period of time from the
Commencement Date to the date on which such first monthly
payment is due. Rent shall be deemed paid on the date
payment is received by Landlord. In the event Tenant fails
to pay any installment of monthly Minimum Annual Rent by the
Due Date and such failure continues for seven (7) days after
notice thereof from Landlord, Tenant shall promptly pay to
Landlord a service charge of ten percent (10%) of the
monthly Minimum Annual Rent then due; provided, if such a
notice is required to be given twice during any twelve (12)
month period during the Term of this lease, any subsequent
failure to pay Minimum Annual Rent within seven (7) days of
the Due Date occurring within the same twelve (12) month
period shall result in such a service charge without any
notice being required. If any installment of Minimum Annual
Rent is not paid within fifteen (15) days after the Due
Date, the monthly Minimum Annual Rent, as increased by the
10% service charge, if applicable, shall bear interest at an
annual rate equal to Wachovia Bank prime plus five percent
(the "DEFAULT RATE"). This provision shall not be construed
to adjust, alter, or modify the Due Dates specified in this
lease, nor shall the payment of any interest required by
this Section be deemed to cure or excuse any default by
Tenant under this lease. Except as otherwise expressly
stated, each payment required to be made by Tenant pursuant
to the provisions of this lease shall be in addition to and
not in substitution for other payments to be made by Tenant.
(c) The term "ADDITIONAL RENT" as used herein shall
mean all sums payable by Tenant under this lease (other than
Minimum Annual Rent), and any sums expended by Landlord to
cure any default by Tenant, and shall be deemed rent for
purposes of Landlord's rights and remedies with respect
thereto.
(d) The term "RENT" as used herein shall mean the
Minimum Annual Rent and Additional Rent, all of which shall
be deemed rent for purposes of Landlord's rights and
remedies with respect thereto. Tenant shall pay all Rent to
Landlord within thirty (30) days after Tenant is billed,
unless otherwise provided in this lease, and interest shall
accrue from and after the due date on all sums due but
unpaid at the Default Rate.
4. Construction of Improvements.
(a) Landlord, at its sole cost and expense, shall
cause to be constructed on the Property an addition to the
existing office/warehouse/light manufacturing facility
consisting of approximately 134,100 square feet of leasable
area, (the "ADDITION") as more particularly described in the
outline specifications listed in Exhibit C, and the
preliminary plans listed in Exhibit D and attached as
Exhibit D1 and the preliminary construction cost breakdown
attached as Exhibit E (the "NEW IMPROVEMENTS"). The plans
and specifications set forth in Exhibits C, D and D1, as
they may be modified in accordance with the terms of this
Agreement, are hereinafter referred to as the "PLANS AND
SPECIFICATIONS". Landlord warrants to Tenant that the New
Improvements shall be constructed in a good and workmanlike
manner, substantially free of defects in workmanship and
substantially in accordance with the Plans and
Specifications. Landlord shall during the first lease year
correct, in a diligent manner, any defects or deficiencies
noted by Tenant to Landlord which arises as a result of the
initial construction of the New Improvements and not as a
result of Tenant's use of the New Improvements or any
component parts thereof. Landlord warrants that the heating
system and the exhaust fans installed in the Addition will
be in good operating condition as of the Commencement Date,
provided Tenant shall, subject to Landlord's obligations in
the preceding sentence, maintain the same in good operating
condition at Tenant's own risk and expense and deliver the
same to Landlord at the termination of this lease in the
same good condition as existed at the beginning of the
original term of this lease, normal wear and tear excepted.
To the extent practicable and permissible, Landlord shall
permit Tenant to enjoy the benefit of all builders and
contractors' warranties and guarantees, and any common law
right of action which Landlord may have with respect to the
New Improvements for so long as no Event of Default exists
under the terms of this lease. After the first lease year,
Landlord will assign to Tenant any such builders' and
contractors' warranties and guarantees for Tenant's use
during the remainder of the Term. In the event any
builders' or contractors' warranties and guarantees cannot
be assigned to Tenant, Landlord agrees to notify Tenant in
writing, prior to the expiration of the first lease year,
identifying such warranties and guarantees and providing
Tenant with copies of the same. Landlord agrees to
cooperate with Tenant and take all reasonable steps to
ensure that any maintenance, repair or replacement covered
by such warranties and guarantees is promptly completed, or
the cost recovered, for the benefit of Tenant, provided that
Landlord shall have no liability for any costs associated
with such maintenance, repair or replacement. Landlord
agrees that the general construction contract for the New
Improvements shall contain a provision that Tenant is a
third party beneficiary of Landlord's rights under such
contract; provided that Tenant shall not exercise any such
rights (x) prior to the end of the first lease year or (y)
with respect to any matter or claim which arose prior to the
end of the first lease year and which Landlord is actively
pursuing with the contractor. Tenant shall notify Landlord
prior to exercising any right pursuant to the preceding
sentence. Landlord shall provide Tenant with a copy of any
and all construction contracts for the Addition and Landlord
agrees Tenant shall have the right to approve any changes to
such contracts consistent with the rights provided under
subsection 4(b). In the event Landlord desires to change
its general contractor from X.X. Xxxxxx Company, Landlord
agrees it shall obtain Tenant's prior written approval to
such change, provided Tenant's approval shall not be
unreasonably withheld or delayed.
(b) Landlord and Tenant may from time to time prior
to completion of construction agree in writing to certain
modifications and/or changes in the Plans and
Specifications; and neither party shall unreasonably
withhold its consent to such modifications and/or changes.
Agreement and approval of any such modifications and the
costs thereof shall be in writing or by signing or
initialing of the proposed changes by both parties through
their authorized representatives. All such modifications
and/or changes requested by Tenant shall be made by Landlord
and the net cost thereof, taking into account any savings
realized by Landlord, shall be paid to Landlord by Tenant on
or before the Commencement Date. The costs of such
increases shall include, in addition to the payment of
actual costs thereof to Landlord, a developer's fee of 10%
of such actual costs.
(c) All of the work to be performed by or on behalf
of Landlord (and any finish work that Tenant shall undertake
to complete) shall be done in a workmanlike manner by
licensed persons, including but not limited to architects,
engineers, contractors and subcontractors, and shall be in
compliance with all governmental rules, orders, licenses,
zoning and building requirements applicable thereto. All
permits and licenses in connection with the initial
construction of the Addition shall be paid for by Landlord.
Upon completion of construction of the New Improvements,
Landlord shall obtain and deliver to Tenant a certificate of
occupancy evidencing the right of Tenant to use the Addition
and shall provide Tenant with copies of all required
governmental permits obtained by Landlord with respect to
the construction of the New Improvements and of as built
plans and specifications and with an architect's certificate
of substantial compliance with the Plans and Specifications
and with the Covenants (as defined in Subsection 6(e)).
(d) Tenant shall, at its sole cost and expense,
furnish and install all trade fixtures, furnishings, and
other tangible personal property of the Tenant. Tenant
agrees to hold Landlord harmless from any mechanic's and
materialmen's liens arising out of any work at the Premises
by or on behalf of Tenant; to do all such work in a good and
workmanlike manner and comply with all governmental laws,
rules, regulations and requirements; and to save Landlord
harmless and indemnify Landlord against all injury, liens,
loss, claims or damage to any person or property occasioned
by or growing out of any work by Tenant or any employees,
agents, contractors, licensees or invitees ("AGENTS") of
Tenant at the Premises, except for any such work performed
by Landlord or its employees or contractors on the Addition
prior to the Commencement Date or as punchlist items or
corrective work during the first lease year as provided in
Subsection 4(a), which shall be covered by builder's risk
policies carried by Landlord or its contractors.
(e) Landlord agrees to give Tenant access to the
Addition prior to the Commencement Date to inspect the same
and install therein fixtures, supplies, machinery and
equipment and other property of Tenant provided that any
such entry and the making of any such improvements and any
such installation shall be done without hindering in any way
Landlord's construction of the New Improvements. From and
after the date of entry by Tenant into the Addition for the
purpose of installing Tenant's personal property and trade
fixtures, Tenant shall be responsible for and shall pay all
electricity costs and other utility costs attributable to
Tenant's work in connection with the installation of trade
fixtures and Tenant's use of the Addition. In addition,
Tenant shall, as of the date of entry onto the New
Improvements, deliver to Landlord the evidence of insurance
required by the terms of this lease, either in builder's
risk form or in such other form as the Landlord or its
insurance agent or mortgagee may reasonably require. In
addition, Tenant agrees to hold Landlord and its contractors
harmless from any and all injury, loss or damage or claims
of injury, loss or damage, of whatever nature, to any person
or property caused by or resulting from the entry upon and
the use of the Addition by Tenant before the Commencement
Date which may not, at the time, be covered by insurance,
excluding any injuries, losses, damages or claims caused
solely by the acts or omissions of Landlord, its contractors
or subcontractors or any of their respective employees.
(f) For purposes of this lease, the Commencement Date
shall be the earlier of (i) the date of the delivery by
Landlord of (A) a final or temporary certificate of
occupancy issued by the appropriate governmental authority
and permitting Tenant to take possession of the Addition,
and (B) a certificate of substantial completion issued by
the project architect, or (ii) the date Tenant commences the
conduct of business in or from the Addition; provided
however, Tenant's use of the Addition for inspection and
installation of fixtures, supplies, etc as provided in
Subsection 4(e) shall not constitute conducting business for
purposes of determining the Commencement Date, or (iii) the
date when Landlord would have been able to deliver the
documents provided for in Subsection (i) above but for
delays actually caused by Tenant or its Agents; provided the
provisions of this clause (iii) shall not cause the
Commencement Date to occur prior to the date which is five
(5) months from the date of this lease. Landlord shall
provide at least thirty (30) days prior notice to the Tenant
of the anticipated Commencement Date and Landlord shall give
Tenant access to the Addition during such thirty (30) day
period in accordance with Section 4(e).
(g) The Original Lease shall remain in full force and
effect until the Commencement Date. From and after the
Commencement Date, this lease shall supercede and replace
the Original Lease. Landlord's obligations hereunder are
contingent upon Guarantor consenting, in a separate written
agreement in form reasonable satisfactory to Landlord, to
this Amended and Restated Lease solely for the purpose of,
and in which Guarantor agrees that its liability and
obligations under the Original Lease, as modified by this
Agreement, shall continue with respect to the Original Space
through April 30, 2006.
5. Acceptance of Premises. Tenant has examined and
knows the condition of the Premises (excluding the
Addition), the zoning, streets, sidewalks, parking areas,
curbs and access ways adjoining it, visible easements, any
surface conditions and the present uses, and Tenant
accepts them in the condition in which they now are,
without relying on any representation, covenant or
warranty by Landlord. Tenant and its Agents shall have the
right, at Tenant's own risk, expense and responsibility, at
all reasonable times prior to the Commencement Date, to
enter the Addition for the purpose of taking measurements
and installing its furnishings and equipment.
6. Use; Compliance.
(a) Permitted Use. Tenant shall occupy and use the
Premises for an office/warehouse/light manufacturing
facility with customary associated uses and in such a
manner as is lawful, reputable and will not create any
nuisance, subject however, to any restrictions imposed on
such permitted use by applicable zoning ordinances or other
laws or by the Covenants or any other restrictions of
record. Without limiting the foregoing, such permitted use
shall exclude any use that would cause the Premises or the
Property to be deemed a "place of public accommodation"
under the Americans with Disabilities Act (the "ADA").
(b) Compliance. From and after the Commencement Date,
Tenant shall comply promptly, at its sole expense,
(including making any alterations or improvements) with
all laws (including the ADA), ordinances, notices,
orders, rules, regulations and requirements, including
without limitation the Covenants, regulating the Premises
during the Term which impose any duty upon Landlord or
Tenant with respect to Tenant's use, occupancy or
alteration of, or Tenant's installations in or upon, the
Property including the Premises, (as the same may be
amended, the "LAWS AND REQUIREMENTS").
(c) Environmental. Tenant shall comply, at its sole
expense, with all Laws and Requirements as set forth
above, all manufacturers' instructions and all
requirements of insurers relating to the treatment,
production, storage, handling, transfer, processing,
transporting, use, disposal and release of hazardous
substances, hazardous mixtures, chemicals, pollutants,
petroleum products, toxic or radioactive matter (the
"RESTRICTED ACTIVITIES"). Tenant shall deliver to
Landlord copies of all Material Safety Data Sheets or
other written information prepared by manufacturers,
importers or suppliers of any chemical and all notices,
filings, permits and any other written communications from
or to Tenant and any entity regulating any Restricted
Activities.
(d) Notice. If at any time during or after the Term,
Tenant becomes aware of any inquiry, investigation or
proceeding regarding the Restricted Activities or becomes
aware of any claims, actions or investigations regarding
the ADA, Tenant shall give Landlord written notice,
within five (5) days after first learning thereof, providing
all available information and copies of any notices.
(e) Covenants. Tenant acknowledges that the Park
and the Premises are subject to the restrictive
covenants imposed by instrument dated December 6, 1983 of
record in Deed Book 1495, page 1797 in the Clerk's Office
of the Circuit Court for the City of Roanoke, Virginia,
as the same may be amended from time to time (the
"COVENANTS"), and thereby agrees to conduct its operations
on and occupy the Premises in accordance with and to
otherwise comply with the Covenants.
7. Term. The Term of this lease shall commence on the
Commencement Date and shall end at 11:59 p.m. on the last
day of the Term (the "EXPIRATION DATE"), without the
necessity for notice from either party, unless sooner
terminated in accordance with the terms hereof. At
Landlord's request, Tenant shall provide a written
confirmation of the Commencement Date and Expiration Date.
8. [Intentionally Omitted.]
9. Operation of Premises; Payment of Expenses.
(a) Taxes and Other Impositions.
(i) Tenant agrees to pay before they become
delinquent all real estate taxes and special assessments
that may be lawfully levied or assessed against the
Premises. Taxes for the first and last lease years shall
be prorated.
(ii) Tenant shall pay before delinquency any and
all taxes, assessments, license fees and public charges
levied, assessed or imposed and which become payable
during the Term upon Tenant's fixtures, furniture,
appliances and personal property installed or located in or
on the Premises. Tenant shall also pay all franchise taxes,
business taxes or other similar taxes that may be levied or
imposed upon the Premises or the business carried on
therein and also all other taxes and rates which are
payable by Tenant.
(iii) If Landlord shall receive any statement
or notice relative to any tax or assessment, in whole or
part payable by Tenant, Landlord shall promptly after
receipt thereof deliver a copy of the same to Tenant.
Tenant shall have the privilege, before delinquency
occurs, of contesting, objecting to or opposing the
legality or validity of any such taxes,
assessments, impositions or charges, in Landlord's name if
necessary, provided that prompt notice of such contest,
objection or opposition shall be given to Landlord by
Tenant at least twenty (20) days before any delinquency and
provided further that such contest, objection or
opposition shall not be carried on or maintained
after the aforesaid time limit for the payment by Tenant
of the obligation, unless Tenant shall have duly paid
the amount involved under protest or shall procure and
maintain a stay of all proceedings to enforce any
collection thereof, together with all penalties,
interest, costs and expenses, by a deposit of a sufficient
sum of money or by a good and sufficient undertaking as may
be required or permitted by law to accomplish such a stay,
unless Tenant shall furnish Landlord with a bond of a
surety company qualified to do business within the
Commonwealth of Virginia, satisfactory to Landlord,
which in form, content and amount of penalty, shall
likewise be reasonably satisfactory to Landlord. In the
event of any such contest, objection, or opposition,
Tenant promises and agrees, after the final determination
thereof adversely to Tenant, to fully pay and discharge the
amounts involved in or affected by such contest, objection
or opposition, together with any penalties, fines, interest,
costs, and expenses that may have accrued thereon that may
result from any such action by Tenant.
(iv) Should any governmental taxing authority levy,
asses or impose a tax and/or assessment (other than a net
income tax) upon or against the rentals payable by Tenant
to Landlord and/or against the gross receipts received by
Landlord from Tenant, either by way of substitution for or
in addition to any existing tax on land or buildings or
otherwise, Tenant shall be responsible for and pay such
tax or assessment, or shall reimburse the Landlord for
the amount thereof, as the case may be, as Additional
Rent, within thirty (30) days of receipt of a xxxx therefor
from Landlord.
(v) If it shall not be lawful for Tenant to
reimburse Landlord for any of the taxes, assessments or
other impositions, the Minimum Annual Rent shall be
increased by the amount of such imposition , unless
prohibited by law.
(b) Insurance.
(i) Property. Tenant, at its sole cost and
expense, shall keep in effect insurance against loss or
damage to the building and other improvements now or
hereafter located on the Premises by fire and such other
casualties as may be included in the broadest form of all-
risk insurance from time to time available, in an amount
equal to the full replacement cost of the Premises and
other improvements, and such other insurance as Landlord
may reasonably deem appropriate or as may be required
from time-to-time by any mortgagee. The policies
described in this subsection (i) shall name Landlord as
the insured party, and in addition shall contain standard
mortgagee endorsement in favor of any mortgagee of
Landlord's interest or, at the election of any such
mortgagee, any reasonable variation of such endorsement.
Tenant shall maintain a 12 month rental coverage
endorsement or other comparable form of
coverage as part of its fire, extended coverage and
special form insurance.
(ii) Liability. Tenant, at its own expense, shall
keep in effect commercial general liability insurance
with respect to the Premises and the Property, including
coverage in respect to its obligations of indemnity
assumed in this lease, with such limits of liability for
bodily injury (including death) and property damage as
reasonably may be required by Landlord from time-to-time,
but not less than an aggregate limit of $10,000,000 per
occurrence and a general aggregate limit of not less
than $3,000,000 (which aggregate limit shall apply
separately to each of Tenant's locations if more than
the Premises); however, such limits shall not limit the
liability of Tenant hereunder. The policy of
comprehensive general public liability insurance also
shall name Landlord and any other entity having an
insurable interest in or relating to the Premises and
designated by Landlord, including any mortgagee of
Landlord, as insured parties with respect to the
Premises, shall be written on an "occurrence" basis and not
on a "claims made" basis, shall provide that it is primary
with respect to any policies carried by Landlord and that
any coverage carried by Landlord shall be excess insurance,
shall provide that it shall not be cancelable or reduced
without at least thirty (30) days prior written notice
to Landlord and shall be issued in form satisfactory to
Landlord. The insurer shall be a responsible insurance
carrier which is authorized to issue such insurance and
licensed to do business in the state in which the
Premises is located and which has at all times during the
Term a rating of no less than A VII in the most current
edition of Best's Insurance Reports. Tenant shall
deliver to Landlord on or before the Commencement
Date, and subsequently renewals of, a certificate of
insurance evidencing such coverage and the waiver of
subrogation described below and the naming of Landlord,
and any agent of Landlord acting as the manager of the
Premises with respect to whom Landlord has given written
notice to Tenant, as insured parties with respect to the
Premises.
(iii) Waiver of Subrogation. Landlord and Tenant
shall have included in their respective property insurance
policies waivers of their respective insurers' right of
subrogation against the other party. If such a waiver
should be unobtainable or unenforceable, then such
policies of insurance shall state expressly that such
policies shall not be invalidated if, before a
casualty, the insured waives the right of recovery against
any party responsible for a casualty covered by the
policy. Upon request of either party, the other party
shall provide written evidence acceptable to the requesting
party that its insurer or insurers have waived their rights
of subrogation as hereinabove provided.
(iv) Increase of Premiums. Tenant shall not
undertake any activity on or with respect to the Premises
or fail to do anything reasonably expected of Tenant with
respect to the Premises which will increase the cost
of Landlord's insurance or which will prevent Landlord
from procuring policies (including public liability)
from companies and in a form satisfactory to Landlord.
If any breach of the preceding sentence by Tenant causes
the rate of any insurance carried by Landlord to be
increased, Tenant shall pay the amount of such increase as
Additional Rent promptly upon being billed.
(c) Repairs and Maintenance.
(i) Except as otherwise expressly provided
herein, Landlord shall have no obligation to maintain,
replace, or repair the Premises, or any improvements,
equipment or fixtures located therein. Tenant shall inspect
the Addition and the New Improvements prior to taking
possession thereof. Upon taking possession and subject to
the provisions of Subsection 4(a), Tenant shall be deemed to
have accepted the Premises "AS IS" except for punchlist
items which Tenant notifies Landlord of within thirty (30)
days of taking possession of the Addition.
(ii) Tenant shall, at its own risk and expense
keep and maintain all structural and non-structural parts of
the Premises in good order, condition and repair. All such
repairs or replacements shall be performed in a good and
workmanlike manner and in compliance with the laws and other
requirements of all federal, state and municipal
governments, including the appropriate boards, commissions
and underwriting agencies or other bodies now or hereafter
exercising similar rights and powers. If Tenant shall fail
to make such repairs within a reasonable time after such
repairs become necessary or, if, in Landlord's judgment,
such repairs are not completed in a good and workmanlike
manner, then Landlord may notify Tenant in writing setting
forth the repairs which Landlord reasonably determines need
to be made. If Tenant fails to make such repairs or
replacements within fifteen (15) days after receiving such
notice from Landlord, then Landlord shall have the right
(but not the obligation) to enter the Premises and make such
repairs or replacements as may be necessary under the
circumstances. Such repairs made by Landlord shall be
charged to and paid by Tenant as Additional Rent and shall
be paid to Landlord within thirty (30) days after a xxxx or
bills for such charges is presented to Tenant.
(iii) At the termination of this lease, Tenant shall
deliver up the Premises broom clean, free of contamination
by hazardous or toxic substances, including petroleum or
petroleum products, located on the Premises as a result of
the act or omission of Tenant or its Agents, and in the same
good and sanitary order and condition as existed at the
beginning date of this lease, normal wear and tear excepted.
(iv) Tenant shall at all times during the term of
this lease provide and maintain reasonable security as to
the Premises and maintain heat in the Premises sufficient to
keep the Premises at a minimum temperature of 35 degrees
Fahrenheit, unless otherwise agreed between the parties
hereto or unless otherwise impossible due to factors outside
of the Tenant's control, in which event Tenant shall give
immediate written notice to Landlord of its inability to
comply with this Subsection (iv).
(v) Tenant shall at all times keep the loading docks,
xxxxxx and stairs adjacent to and serving the Premises in a
safe condition reasonably free of dirt, grime, snow and ice.
(vi) Tenant shall not load the concrete floor slab
with loads in excess of 500 psf except as otherwise provided
in the Plans and Specifications. To the extent the floor is
damaged as a result of excess loading, Tenant shall be
responsible for and shall repair, at its sole cost, any such
damage.
(vii) Except as specifically otherwise provided in
this Section (c) and in Section 14, Tenant at its sole
expense shall maintain the Premises in good order and
condition, promptly make all repairs necessary to maintain
such condition, and repair any damage to the Premises caused
by Tenant or its Agents. All repairs made by Tenant shall
utilize materials and equipment which are comparable to
those originally used in constructing the Building and
Premises. When used in this Section (c), the term "repairs"
shall include replacements and renewals when necessary.
(d) Utility Charges. Tenant shall pay for water,
sewer, gas, electricity, heat, power, telephone and
other communication services and any other utilities
supplied to or consumed in or on the Premises and shall
make payments when due directly to the utility or
service company involved. Landlord shall not be
required to pay for any services, supplies or upkeep in
connection with utilities or other services to the Premises
or be responsible or liable for any interruption in utility
service, nor shall such interruption affect the
continuation or validity of this lease.
(e) Net lease. Except for any obligations of
Landlord expressly set forth herein, this lease is a "triple
net lease" and Landlord shall receive the Minimum Annual
Rent as net income from the Premises, not diminished by
any expenses other than payments under any mortgages,
and, except as otherwise expressly provided herein, any
present or future law to the contrary notwithstanding,
Tenant shall not be entitled to any abatement, reduction,
set-off, counterclaim, defense or deduction, with respect
to any Minimum Annual Rent, Additional Rent or other sum
payable hereunder, nor shall the obligations of Tenant
hereunder be affected by reason of: (i) any damage to or
destruction of the Premises or any taking of the Premises
or any part thereof by condemnation or otherwise; (ii) any
prohibition, limitation, restriction or prevention of
Tenant's use, occupancy or enjoyment of the Premises, or
any interference with such use, occupancy or enjoyment
by any person; (iii) the impossibility or illegality of
performance by Landlord, Tenant or both; (iv) any action
of any governmental authority; or (v) any other cause
whether similar or dissimilar to the foregoing.
Landlord is not and shall not be required to render any
services of any kind to Tenant.
10. Signs. Except for signs shown in the approved
Plans and Specifications, preexisting signs permitted
under the Original Lease and those which are located
wholly within the interior of the Premises and not
visible from the exterior of the Premises, no signs shall
be placed on the Premises without the prior written
consent of Landlord, which consent shall not be
unreasonably withheld or delayed. All signs installed
by Tenant shall be maintained by Tenant in good condition
and Tenant shall remove all such signs at the termination
of this lease and shall repair any damage caused by such
installation, existence or removal.
11. Alterations and Fixtures.
(a) Subject to Section 12, Tenant shall have the
right to install its trade fixtures, shelves, bins,
machinery and equipment in the Premises, provided that no
such installation or removal thereof shall adversely
affect any structural portion of the Premises. At the
expiration or termination of this lease and at the option
of Landlord, Tenant shall remove such installation(s) and,
in the event of such removal, Tenant shall repair any
damage caused by such installation or removal. If Tenant,
with Landlord's written consent, elects not to remove such
installation(s) at the expiration or termination of this
lease, all such installations shall remain on the
Premises and become the property of Landlord without
payment by Landlord.
(b) Except for non-structural changes which do not
exceed $25,000 in the aggregate, Tenant shall not make or
permit to be made any alterations to the Premises
without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Tenant shall pay the
costs of any required architectural/engineering reviews. In
making any alterations, (i) Tenant shall deliver to
Landlord the plans, specifications and necessary permits,
together with certificates evidencing that Tenant's
contractors and subcontractors have adequate insurance
coverage naming Landlord and any other entities having an
insurable interest in or relating to the Premises and
designated by Landlord as additional insureds, at least ten
(10) days prior to commencement thereof, (ii) such
alterations shall not impair the structural strength of
the Building or any other improvements or reduce the value
of the Premises, (iii) Tenant shall comply with Section 12
and (iv) other occupants of the Park shall not be
unreasonably disturbed thereby. All alterations to the
Premises by Tenant shall be the property of Tenant until
the expiration or termination of this lease; at which time
all such alterations shall remain on the Premises and
become the property of Landlord without payment by Landlord
unless Landlord gives written notice to Tenant to remove
the same, in which event Tenant will remove such
alterations and repair any resulting damage. Tenant may,
not less than fifteen (15) days prior to Tenant making any
alterations, give written notice to Landlord requesting
Landlord to notify Tenant in writing as to whether Tenant is
required to remove such alterations at the expiration or
termination of this lease. If Landlord fails to so notify
Tenant by the end of such fifteen (15) day period, then
Tenant shall remove such alterations at the expiration or
termination of this lease.
12. Mechanics' Liens.
(a) Tenant shall pay when due any contractors and
materialmen who supply labor, work or materials to Tenant at
the Premises and shall take all steps permitted by law
in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Premises. Should any such
lien or notice of lien be filed for work performed for
Tenant other than by Landlord, Tenant shall bond against
or discharge the same within fifteen (15) days after Tenant
has notice that the lien or claim is filed regardless
of the validity of such lien or claim. Landlord shall pay
all contractors and materialmen who supply labor, work or
materials to Landlord in connection with the construction of
the Addition and shall take all steps permitted by law in
order to avoid the imposition of any mechanic's lien upon
all or any portion of the Premises which may affect
Tenant's quiet enjoyment of the Premises.
(b) Nothing in this lease is intended to authorize
Tenant to do or cause any work to be done or materials to be
supplied for the account of Landlord, all of the same to
be solely for Tenant's account and at Tenant's risk and
expense. If Tenant shall fail to discharge or bond off any
such lien, then Landlord shall have the right (but not the
obligation) to pay or discharge any such lien or claim of
lien and treat such lien or claim of lien as a default
under the terms of this lease. If Landlord elects to pay
or discharge any such lien or claim of lien, then Tenant
shall pay to Landlord all of Landlord's expenses incurred,
including reasonable attorneys' fees, together with interest
on the funds so advanced at the Default Rate, which payment
shall be deemed Additional Rent and payable by Tenant
within ten (10) days after receipt of written evidence
that the lien has been paid.
(c) Throughout this lease the term "mechanic's lien"
is used to include any lien, encumbrance or charge levied
or imposed upon all or any portion of, interest in or
income from the Premises on account of any mechanic's,
laborer's, materialman's or construction lien or arising out
of any debt or liability to or any claim of any contractor,
mechanic, supplier, materialman or laborer and shall
include any mechanic's notice of intention to file a lien
given to Landlord or Tenant, any stop order given to
Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable
action brought by any person claiming to be entitled to any
mechanic's lien.
13. Landlord's Right of Entry. Tenant shall permit
Landlord and its Agents to enter the Premises at all
reasonable times following reasonable notice (except in the
event of an emergency), for the purpose of inspection,
maintenance or making repairs, alterations or additions as
well as to exhibit the Premises for the purpose of sale or
mortgage and, during the last 12 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord
will make reasonable efforts not to inconvenience Tenant in
exercising the foregoing rights, but shall not be
liable for any loss of occupation or quiet enjoyment
thereby occasioned. Tenant shall, prior to taking
possession of the Addition, deliver a complete set of keys
to the Premises to the Landlord for emergency use. Tenant
covenants that if it shall thereafter change or add
additional locks on the doors to the Premises it will
immediately provide new keys to the Landlord.
14. Damage by Fire or Other Casualty. In the event
the Premises are damaged or destroyed by fire or other
cause, Tenant shall give immediate notice thereof to
Landlord. The rights and obligations of Landlord and Tenant
in the event of such fire or other casualty shall be as
follows:
(a) Landlord shall promptly make application for all
governmental licenses and permits necessary to rebuild the
damaged Premises and Tenant shall promptly make a claim for
the insurance proceeds related to the improvements on the
Premises so damaged or destroyed.
(b) As soon as such insurance proceeds have been
received Tenant shall notify Landlord and make such proceeds
available to Landlord, together with any additional funds
necessary to repair and restore the damaged improvements.
Unless this lease is terminated pursuant to Subsections
14(c) or 14 (e), Landlord shall within ten (10) days after
such funds have been made available for such purpose and all
necessary governmental licenses and permits have been
obtained (the "Determination Date"), commence restoration of
the Premises and prosecute the same diligently to
completion.
(c) Landlord shall notify Tenant in writing, within
ten (10) days after the Determination Date, if Landlord
anticipates, in its reasonable determination, that the
restoration will take more than nine (9) months from the
Determination Date to complete; in such event, either
Landlord or Tenant may terminate this lease effective as of
the date of casualty by giving written notice to the other
within ten (10) days after Landlord's notice.
(d) All insurance proceeds arising from such damage or
destruction shall be made available to Landlord for that
purpose. Landlord's obligations under this Section 14 to
repair or restore the Premises shall in all events be
limited to the extent of the insurance proceeds and other
funds made available to Landlord for such purposes;
provided, however, that the obligation of Landlord to repair
such damage shall initially be limited to that portion of
the Premises, such as the footings, foundations, exterior
walls, roof, and the interior improvements originally
installed by Landlord at Landlord's expense for Tenant's
benefit, and then, to the extent sufficient funds are made
available to Landlord, any construction, alterations or
improvements installed by Tenant (with Landlord's written
consent at Tenant's expense or by Landlord at Tenant's
expense). Tenant shall, upon notice from Landlord that
Landlord has not been provided sufficient funds for such
purpose, promptly repair or replace all additions,
alterations or improvements to the Premises originally
installed for Tenant's benefit at Tenant's expense.
(e) If the Premises are substantially damaged or
destroyed during the last twelve (12) months of the Term or
any extension thereof, Landlord may cancel this lease
effective upon the date the damage or destruction occurred
upon thirty (30) days notice to Tenant unless Tenant has the
right to extend the Term for at least three (3) more years
and does so within thirty (30) days after the date of the
casualty. For the purpose of this Section, the Premises
shall be deemed "substantially damaged or destroyed" if more
than fifty (50%) percent of the gross area of the Premises
is destroyed or the repair and replacement of the Premises
cannot be completed within 180 days from the date such
damage or destruction occurs.
(f) Except to the extent specifically provided for in
this lease, neither the Rent nor any additional rent
payable by Tenant, nor any of Tenant's other obligations
under any provisions of this lease, shall be affected by
any damage or destruction of the Premises by any cause
whatsoever, and Tenant hereby specifically waives any and
all additional rights it might otherwise have under any law
or statute.
15. Condemnation.
(a) Termination. If (i) more than fifty percent
(50%) of the Premises are taken by a condemnation or
otherwise for any public or quasi-public use, (ii) any part
of the Premises is so taken and the remainder thereof is
insufficient in Tenant's opinion for the reasonable
operation of Tenant's business or (iii) any of the
Premises is so taken, and, in Landlord's opinion, it
would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Premises,
then this lease shall terminate and all unaccrued
obligations hereunder shall cease as of the day before
possession is taken by the condemnor.
(b) Partial Taking. If there is a condemnation and
this lease has not been terminated pursuant to this
Section, (i) Landlord shall restore the Building and the
improvements which are a part of the Premises to a
condition and size as nearly comparable as reasonably
possible to the condition and size thereof immediately
prior to the date upon which the condemnor took possession
and (ii) the obligations of Landlord and Tenant shall be
unaffected by such condemnation except, from and after
the date upon which the condemnor took possession of
the condemned space, the Minimum Annual Rent shall be
reduced by multiplying the Minimum Annual Rent by a
fraction, the numerator of which is the total number of
square feet of leased space lost by the condemnation and
the denominator of which is 399,182.
(c) Award. In the event of a condemnation affecting
Tenant, Tenant shall have the right to make a claim against
the condemnor for its personal property, trade fixtures,
moving expenses and business dislocation damages to the
extent that such claim does not reduce the sums otherwise
payable by the condemnor to Landlord. Except as
aforesaid and except as set forth in (d) below, Tenant
hereby assigns all claims against the condemnor to Landlord.
(d) Temporary Taking. No temporary taking of the
Premises shall terminate this lease or give Tenant any
right to any rental abatement. Such a temporary taking
will be treated as if Tenant had sublet the Premises to
the condemnor and had assigned the proceeds of the
subletting to Landlord to be applied on account of Tenant's
obligations hereunder. Any award for such a temporary
taking during the Term shall be applied first, to Landlord's
costs of collection and, second, on account of sums
owing by Tenant hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed
the entire amount owing by Tenant for the remainder of
the Term, the excess will be paid to Tenant.
Notwithstanding the above, any temporary taking which
continues for more than one (1) year shall thereafter be
considered a termination subject to the provisions of
Subsection 15(a).
16. Non-Abatement of Rent. Except as otherwise
expressly provided as to condemnation in Section 15(b),
there shall be no abatement or reduction of the Rent for
any cause whatsoever, and this lease shall not terminate,
and Tenant shall not be entitled to surrender the Premises.
17. Indemnification.
(a)
Subject to Sections 9(b)(iii) and 18, Tenant will protect,
indemnify and hold harmless Landlord and its Agents
from and against any and all claims, actions, damages,
liability and expense (including fees of attorneys,
investigators and experts) in connection with loss of
life, personal injury or damage to property in or about the
Premises or arising out of the occupancy or use of the
Premises by Tenant or its Agents or occasioned wholly or
in part by any act or omission of Tenant or its Agents,
whether prior to, during or after the Term, unless such
loss, injury or damage was caused solely by the negligence
of Landlord or its Agents. In case any action or
proceeding is brought against Landlord and/or its
Agents by reason of the foregoing, Tenant, at its
expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended
by counsel (reasonably acceptable to Landlord and its
Agents) designated by the insurer whose policy covers such
occurrence or by counsel designated by Tenant and
approved by Landlord and its Agents. Tenant's obligations
pursuant to this Section 17 shall survive the expiration or
termination of this lease.
(b) Subject to Sections 9(b)(iii) and 18, Landlord will
protect, indemnify and hold harmless Tenant and its Agents
from and against any and all claims, actions, damages,
liability and expense (including fees of attorneys,
investigators and experts)in connection with loss of life,
personal injury or damage to property in or about the
Premises occasioned by any act or omission of Landlord or
its Agents, whether prior to, during or after the Term,
unless such loss, injury or damage was caused by the
negligence of Tenant or its Agents. In case any action or
proceeding is brought against Tenant and/or its Agents by
reason of the foregoing, Landlord, at its expense, shall
resist and defend such action or proceeding, or cause
the same to be resisted and defended by counsel
(reasonably acceptable to Tenant and its Agents) designated
by the insurer whose policy covers such occurrence or by
counsel designated by Landlord and approved by Tenant
and its Agents. Landlord's obligations pursuant to this
Section 17 shall survive the expiration or termination of
this lease.
18. Waiver of Claims. Landlord and Tenant each hereby
waives all claims for recovery against the other for any
loss or damage which may be inflicted upon the property of
such party even if such loss or damage shall be brought
about by the fault or negligence of the other party or its
Agents; provided, however, that such waiver by Landlord
shall not be effective with respect to any liability of
Tenant described in Sections 6(c) and 9(c)(iv).
19. Quiet Enjoyment. Landlord represents and
covenants that it has full right and authority to execute
this lease and grant the estate demised hereunder, and that
Tenant, upon performing all of its covenants, agreements
and conditions of this lease, shall have
quiet and peaceful possession of the Premises as against
anyone claiming by or through Landlord, subject, however,
to the exceptions, reservations and conditions of this
lease.
20. Assignment and Subletting.
(a) Limitation. Tenant shall not transfer this
lease, voluntarily or by operation of law, without the
prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Notwithstanding
the foregoing, Landlord's consent shall not be required
in the event of any transfer by Tenant to an affiliate
of Tenant or, in the case of a change in ownership or
control of Tenant, a successor entity which is at least
as creditworthy as Tenant as of the date of this lease and
provided Tenant delivers to Landlord the instrument
described in Section (c)(iii) below, together with a
certification of such creditworthiness by Tenant and such
affiliate. Any transfer not in conformity with this
Section 20 shall be void at the option of Landlord, and
Landlord may exercise any or all of its rights under
Section 25. A consent to one transfer shall not be deemed
to be a consent to any subsequent transfer. "Transfer"
shall include any sublease, assignment, license, change
in control of Tenant, mortgage or hypothecation of
this lease or Tenant's interest therein or in all or a
portion of the Premises.
(b) Offer to Landlord. Tenant acknowledges
that the terms of this lease, including the Minimum Annual
Rent, have been based on the understanding that Xxxxxxxxx
Xxxxx, Inc. would be the tenant under this lease for the
entire Term. Therefore, upon Tenant's request to transfer
all or a portion of the Premises to any person for
whom Landlord's consent is required pursuant to Section
20(a), at the option of Landlord, Tenant and Landlord
shall execute an amendment to this lease removing such space
from the Premises, Tenant shall be relieved of any
liability with respect to such space and Landlord shall have
the right to lease such space to any party, including
Tenant's proposed transferee.
(c) Conditions. Notwithstanding the above, the
following shall apply to any transfer, with or without
Landlord's consent:
(i) As of the date of any transfer, Tenant shall
not be in default under this lease nor shall any act
or omission have occurred which would constitute a default
with the giving of notice and/or the passage of
time.
(ii) No transfer shall relieve Tenant of
its obligation to pay the Rent and to perform all its other
obligations hereunder. The acceptance of Rent by Landlord
from any person shall not be deemed to be a waiver by
Landlord of any provision of this lease or to be a consent
to any transfer.
(iii) Each transfer shall be by a written
instrument in form and substance satisfactory to Landlord
which shall (A) include an assumption of liability by
any transferee of all Tenant's obligations and the
transferee's ratification of and agreement to be bound
by all the provisions of this lease, (B) afford Landlord
the right of direct action against the transferee pursuant
to the same remedies as are available to Landlord against
Tenant and (C) be executed by Tenant and the transferee.
(iv) Tenant shall pay, within thirty (30) days of
receipt of an invoice which shall be no less than
$500, Landlord's reasonable attorneys' fees and costs in
connection with the review, processing and documentation of
any transfer for which Landlord's consent is requested.
21. Subordination; Mortgagee's Rights.
(a) This lease shall be subordinate to any first
mortgage or other primary encumbrance now or hereafter
affecting the Premises, provided any such mortgagee agrees
in writing that so long as Tenant is in compliance
with the terms and conditions of this lease, then in the
event of a foreclosure under any such mortgage or
encumbrance affecting the Premises, such mortgagee will
not disturb the rights of Tenant under the terms or this
lease and Tenant shall attorn to the new landlord
hereunder. Although the subordination is self-operative,
within fifteen (15) days after written request, Tenant
shall execute and deliver any further instruments
confirming such subordination of this lease and any
further instruments of attornment that may be desired by any
such mortgagee or Landlord, provided Tenant receives an
agreement of nondisturbance as hereinabove set forth.
However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant's consent, by giving
written notice to Tenant, and thereupon this lease shall be
deemed prior to such mortgage without regard to their
respective dates of execution and delivery; provided,
however, that such subordination shall not affect any
mortgagee's right to condemnation awards, casualty
insurance proceeds, intervening liens or any right
which shall arise between the recording of such mortgage
and the execution of this lease.
(b) Tenant agrees, if requested by Landlord, to
amend this lease to conform to any reasonable amendments
requested by any mortgagee of Landlord's interest in the
Premises provided that any such amendments do not increase
the rents or otherwise materially adversely affect Tenant's
rights or obligations under this lease.
(c) It is understood and agreed that any mortgagee
shall not be liable to Tenant for any funds paid by Tenant
to Landlord unless such funds actually have been
transferred to such mortgagee by Landlord.
(d) Notwithstanding the provisions of Sections 14 and
15 above, Landlord's obligation to restore the Premises
after a casualty or condemnation shall be subject to the
consent and prior rights of Landlord's first mortgagee.
22. Recording; Tenant's Certificate.
(a) This lease shall not be recorded. At the request
of either party, a short form memorandum of this
lease suitable for recordation, but in no way varying the
provisions of this lease, shall be entered into by
Landlord and Tenant containing a description of the
Property, the term of this lease, any renewal options and
such other terms as the parties may agree. The cost of
preparing and recording such a memorandum shall be at the
expense of the requesting party. Upon the
expiration or earlier termination of this lease, Tenant
agrees to deliver to Landlord a lease termination
agreement, in recordable form, containing such terms and
conditions as may be reasonably required by Landlord to
better evidence the termination of this lease.
(b) Within ten (10) days after Landlord's written
request from time to time:
(i) Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying the
Commencement Date and Expiration Date of this lease, that
this lease is in full force and effect and has not been
modified and otherwise as set forth in the form of
estoppel certificate attached as Exhibit "F" or with such
modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be
requested by a mortgagee or purchaser. Tenant
understands that its failure to execute such documents may
cause Landlord serious financial damage by causing the
failure of a financing or sale transaction; and
(ii) Tenant shall furnish to Landlord, Landlord's
mortgagee, prospective mortgagee or purchaser reasonably
requested financial information.
23. Surrender; Abandoned Property.
(a) Subject to the terms of Sections 11(b), 14(a) and
15(b), at the expiration or termination of this lease,
Tenant promptly shall yield up in the same condition,
order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements
thereto, and all fixtures and equipment servicing the
Building, ordinary wear and tear excepted.
(b) Upon or prior to the expiration or termination of
this lease, Tenant shall remove any personal property from
the Premises. Any personal property remaining thereafter
shall be deemed conclusively to have been abandoned, and
Landlord, at Tenant's expense, may remove, store, sell or
otherwise dispose of such property in such manner as
Landlord may see fit and/or Landlord may retain such
property as its property. If any part thereof shall be
sold, then Landlord may receive and retain the proceeds
of such sale and apply the same, at its option, against the
expenses of the sale, the cost of moving and storage and
any Rent due under this lease.
(c) If Tenant, or any person claiming through Tenant,
shall continue to occupy the Premises after the expiration
or termination of this lease or any renewal thereof,
such occupancy shall be deemed to be under a month-to-
month tenancy under the same terms and conditions set
forth in this lease, except that the monthly installment
of the Minimum Annual Rent during such continued
occupancy shall be double the amount applicable to the last
month of the Term. Tenant shall also pay any Additional
Rent attributable to Tenant's occupation of the Premises and
any damages incurred by Landlord as a result of such holding
over. Anything to the contrary notwithstanding, any
holding over by Tenant without Landlord's prior written
consent shall constitute a default hereunder and shall be
subject to all the remedies available to Landlord.
24. Curing Tenant's Defaults. If Tenant shall be in
default in the performance of any of its obligations
hereunder, Landlord, without any obligation to do so, in
addition to any other rights it may have in law or equity,
may elect to cure such default on behalf of Tenant after
written notice (except in the case of emergency) to Tenant.
Tenant shall reimburse Landlord within ten (10) days after
written demand to Tenant for any sums paid or costs
incurred by Landlord in curing such default, including
interest thereon from the respective dates of Landlord's
incurring such costs, which sums and costs together with
interest shall be deemed Additional Rent.
25. Tenant's Defaults - Landlord's Remedies.
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due any
and all Rent;
(ii) If Tenant fails to observe and perform or
otherwise breaches any other provision of this lease; or
(iii) If Tenant becomes insolvent or bankrupt in
any sense or makes a general assignment for the benefit of
creditors, or if a petition in bankruptcy or for
reorganization or for an arrangement with creditors under
any federal or state law is filed by or against Tenant, or
a xxxx in equity or other proceeding for the appointment of
a receiver for any of Tenant's assets is commenced, or if
any of the real or personal property of Tenant shall be
levied upon; provided, however, that any proceeding
brought by anyone other than Landlord or Tenant
under any bankruptcy, insolvency, receivership or similar
law shall not constitute a default until such proceeding
has continued unstayed for more than sixty (60) consecutive
days.
(b) Remedies. Then, and in any such event, Landlord
shall have the following rights:
(i) To enter and repossess the Premises, by
breaking open locked doors if necessary, and remove all
persons and all or any property therefrom, by action at law
or otherwise, without being liable for prosecution or
damages therefor, and Landlord may, at Landlord's option,
make alterations and repairs in order to relet the Premises
and relet all or any part(s) of the Premises for Tenant's
account. Tenant agrees to pay to Landlord on
demand any deficiency that may arise by reason of such
reletting. In the event of reletting without termination of
this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach.
(ii) To accelerate the whole or any part of the
Rent for the balance of the Term, and declare the same to be
immediately due and payable.
(iii) To terminate this lease and the Term without
any right on the part of Tenant to save the forfeiture by
payment of any sum due or by other performance of any
condition, term or covenant broken.
(c) Grace Period. Notwithstanding anything
hereinabove stated, neither party will exercise any
available right because of any default of the other,
except those remedies contained in Subsection 3(b),
unless such party shall have first given ten (10) days
written notice thereof to the defaulting party, and
the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant
fails to comply with the provisions of Sections 12 or 22(b),
in the case of emergency as set forth in Section 24
or in the event of any default enumerated in subsection (a)
(iii) of this Section.
(ii) Landlord shall not be required to give such
ten (10) days notice more than 2 times during any 12 month
period.
(iii) If the default consists of something other
than the failure to pay money which cannot reasonably be
cured within thirty (30) days, neither party will exercise
any right or remedy if the defaulting party begins to cure
the default within the thirty (30) days and continues
actively and diligently in good faith to completely cure
said default.
(iv) Tenant agrees that any notice given by
Landlord pursuant to this Section which is served in
compliance with Section 29 shall be adequate notice for
the purpose of Landlord's exercise of any available
remedies.
(d) Non-Waiver; Non-Exclusive. No waiver by Landlord
of any breach by Tenant shall be a waiver of any
subsequent breach, nor shall any forbearance by Landlord
to seek a remedy for any breach by Tenant be a waiver by
Landlord of any rights and remedies with respect to such
or any subsequent breach. Efforts by Landlord to mitigate
the damages caused by Tenant's default shall
not constitute a waiver of Landlord's right to
recover damages hereunder. No right or remedy herein
conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or
by law, but each shall be cumulative and in addition to
every other right or remedy given herein or now or
hereafter existing at law or in equity. No payment by
Tenant or receipt or acceptance by Landlord of a lesser
amount than the total amount due Landlord under this lease
shall be deemed to be other than on account, nor shall
any endorsement or statement on any check or payment be
deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right
to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(e) Costs and Attorneys' Fees. If either party
commences an action against the other party arising out of
or in connection with this lease, the prevailing party
shall be entitled to have and recover from the losing
party reasonable attorneys' fees, costs of suit,
investigation expenses and discovery costs, including costs
of appeal.
26. Representations.
(a) Tenant represents to Landlord and agrees that:
(i) The word "Tenant" as used herein includes
the Tenant named above as well as its successors and
assigns, each of which shall be under the same
obligations and liabilities and each of which shall have
the same rights, privileges and powers as it would have
possessed had it originally signed this lease as
Tenant. However, no such rights, privileges or powers shall
inure to the benefit of any assignee of Tenant
immediate or remote, unless Tenant has complied with the
terms of Section 20 and the assignment to such assignee is
permitted or has been approved in writing by Landlord.
(ii) If Tenant is a corporation, partnership or
any other form of business association or entity,
Tenant represents to Landlord that it is duly formed and
in good standing, and has full corporate or partnership
power and authority, as the case may be, to enter into
this lease and has taken all corporate or partnership
action, as the case may be, necessary to carry out the
transaction contemplated herein, so that when executed, this
lease constitutes a valid and binding obligation
enforceable in accordance with its terms. Tenant shall
provide Landlord with corporate resolutions or other proof
in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
(b) If Landlord is a corporation, partnership or any
other form of business association or entity, Landlord
represents to Tenant that it is duly formed and in good
standing, and has full corporate or partnership power and
authority, as the case may be, to enter into this lease
and has taken all corporate or partnership action, as the
case may be, necessary to carry out the transaction
contemplated herein, so that when executed, this lease
constitutes a valid and binding obligation enforceable in
accordance with its terms. Landlord shall provide Tenant
with corporate resolutions or other proof in a form
acceptable to Tenant, authorizing the execution of this
lease at the time of such execution.
27. Liability of Landlord. The word "Landlord" as
used herein includes the Landlord named above as well as
its successors and assigns, each of which shall have
the same rights, remedies, powers, authorities and
privileges as it would have had it originally signed
this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability
hereunder after it ceases to hold title to the Premises
except for obligations already accrued (and, as to any
unapplied portion of Tenant's Security Deposit, Landlord
shall be relieved of all liability therefor upon
transfer of such portion to its successor in interest) and
Tenant shall look solely to Landlord's successor in
interest for the performance of the covenants and
obligations of the Landlord hereunder which thereafter
shall accrue. Neither Landlord nor any principal of
Landlord nor any owner of the Premises, whether
disclosed or undisclosed, shall have any personal liability
with respect to any of the provisions of this lease or the
Premises, and if Landlord is in breach or default with
respect to Landlord's obligations under this lease or
otherwise, Tenant shall look solely to the equity of
Landlord in the Premises for the satisfaction of Tenant's
claims. Notwithstanding the foregoing, no mortgagee or
ground lessor succeeding to the interest of Landlord
hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission
of a prior landlord, (b) subject to any rental offsets or
defenses against a prior landlord or (c) bound by any
amendment of this lease made without its written consent,
or by payment by Tenant of Minimum Annual Rent in advance in
excess of one monthly installment.
28. Interpretation; Definitions.
(a) Captions. The captions in this lease are for
convenience only and are not a part of this lease and do not
in any way define, limit, describe or amplify the terms and
provisions of this lease or the scope or intent thereof.
(b) Entire Agreement. This lease represents the entire
agreement between the parties hereto and there are no
collateral or oral agreements or understandings between
Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in
the Premises or any land adjacent to the Property by
Tenant by implication or otherwise except as expressly set
forth in the provisions of this lease. This lease shall not
be modified in any manner except by an instrument in
writing executed by the parties. The masculine (or neuter)
pronoun and the singular number shall include the masculine,
feminine and neuter genders and the singular and plural
number. The word "including" followed by any specific
item(s) is deemed to refer to examples rather than to be
words of limitation. Both parties having participated fully
and equally in the negotiation and preparation of this
lease, this lease shall not be more strictly construed, nor
any ambiguities in this lease resolved, against either
Landlord or Tenant.
(c ) Covenants. Each covenant, agreement,
obligation, term, condition or other provision herein
contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or
making the same, not dependent on any other provision of
this lease unless otherwise expressly provided. All of the
terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth
herein.
(d) Interest. Wherever interest is required to
be paid hereunder, such interest shall be at the
Default Rate.
(e) Severability; Governing Law. If any provisions of
this lease shall be declared unenforceable in any respect,
such unenforceability shall not affect any other provision
of this lease, and each such provision shall be deemed to
be modified, if possible, in such a manner as to render
it enforceable and to preserve to the extent possible
the intent of the parties as set forth herein. This
lease shall be construed and enforced in accordance
with the laws of the state in which the Property is
located.
(f) "Mortgage" and "Mortgagee." The word "mortgage"
as used herein includes any lien or encumbrance on the
Premises or the Property or on any part of or interest in
or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if
Landlord's interest is or becomes a leasehold estate.
The word "mortgagee" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's
interest is or becomes a leasehold estate. Wherever any
right is given to a mortgagee, that right may be exercised
on behalf of such mortgagee by any representative or
servicing agent of such mortgagee.
(g) "Person." The word "person" is used herein to
include a natural person, a partnership, a corporation,
an association and any other form of business association
or entity.
29. Notices. Any notice or other communication under
this lease shall be in writing and addressed to Landlord
or Tenant at their respective addresses specified below
(or to such other address as either may designate by
notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other
communication shall be deemed given if sent by prepaid
overnight delivery service or by certified mail, return
receipt requested, postage prepaid or in any other manner,
with delivery in any case evidenced by a receipt, and
shall be deemed received on the day of actual receipt by
the intended recipient or on the business day delivery
is refused. The giving of notice by Landlord's or
Tenant's attorneys, representatives and agents under this
Section shall be deemed to be the acts of Landlord or
Tenant, as applicable; however, the foregoing provisions
governing the date on which a notice is deemed to have
been received shall mean and refer to the date on which
a party to this lease, and not its counsel or other
recipient to which a copy of the notice may be sent, is
deemed to have received the notice:
IF TO TENANT: Xxxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
with a copy to: Xxxxxxxxx Xxxxx, Inc.
00000 X.X. 00 Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
IF TO LANDLORD: Liberty Property Limited
Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx
with a copy to: Liberty Property Limited
Partnership 00 Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
and with a copy to: XxXxxxx Xxxxx LLP
One Xxxxx Center
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
30. Security Deposit; Guaranty; Letter of Credit.
(a) Security Deposit. At the time of signing this
lease, Tenant shall deposit with Landlord an amount equal
to the Minimum Annual Rent for the first full month of
the Term (the "SECURITY DEPOSIT") to be retained by
Landlord as cash security for the faithful performance
and observance by Tenant of the provisions of this lease.
In making such deposit, Tenant shall be entitled to a
credit for any Security Deposit held by Landlord under the
Original Lease. Landlord shall deposit the Security
Deposit in an interest bearing account and all interest
earned thereon shall be added to the Security Deposit.
Landlord may use the whole or any part of the Security
Deposit for the payment of any amount as to which Tenant
is in default hereunder or to compensate Landlord for any
loss or damage it may suffer by reason of Tenant's default
under this lease. If Landlord uses all or any portion of
the Security Deposit as herein provided, within thirty
(30) days after written demand therefor, Tenant shall pay
Landlord cash in amount equal to that portion of the
Security Deposit used by Landlord so that the Security
Deposit shall then be not less than the original Security
Deposit, excluding interest earned thereon. If Tenant shall
comply fully and faithfully with all of the provisions of
this lease, the Security Deposit, together with interest
earned thereon, shall be returned to Tenant after the
Expiration Date and surrender of the Premises to Landlord.
(b) Letter of Credit. (i) To further secure
performance of Tenant's obligations hereunder to the
extent related to the New Improvements and the
Addition, Tenant shall deliver to Landlord prior to the
Commencement Date an irrevocable letter of credit (the
"Letter of Credit"), which, together with any renewal,
replacement or amendment thereto, shall be in form, scope
and substance reasonably satisfactory to Landlord and to
any Mortgagee. The Letter of Credit shall be issued by
JPMorgan Chase or another major international bank,
reasonably acceptable to Landlord. The Letter of Credit
shall be in the amount of $337,000. If at any time as a
result of any drawing thereon in accordance with the terms
of this lease, the obligation of the issuer under the
Letter of Credit is less than the amount set forth in the
preceding sentence, Tenant shall, within twenty (20) days
after such drawing, cause the Letter of Credit to be
amended to secure such original amount or replaced by a
new letter of credit in at least such original amount. The
Letter of Credit shall provide (a) for multiple draws, (b)
that it is assignable as security for Landlord's
obligations, (c) that it can be called on and paid at a
United States branch or office of the issuing bank, and
(d) that it is payable in full on written demand
(allowing, however, up to one business day after receipt of
such demand for the issuing Bank to verify the signature
appearing on such demand) signed by an agent of Landlord or
any Mortgagee to whom the Letter of Credit has been assigned
and accompanied by such certifications by the drawer as may
be required by the Letter of Credit. Any renewal or
replacement of or amendment to the Letter of Credit must
be acceptable in form and substance to Landlord and to any
Mortgagee to whom the Letter of Credit has been assigned.
(ii) If the term of the Letter of Credit is less than
the term of this lease, the Letter of Credit must provide
for written notice of termination to be sent to Landlord and
any Mortgagee to whom the Letter of Credit has been assigned
at least sixty (60) days in advance of the expiration date
and, if such a notice of termination is sent or if the
issuing bank no longer satisfies the requirement set forth
in paragraph (i) above, and in either of such cases a
replacement Letter of Credit, meeting all the requirements
of this Section 30(b), is not received by Landlord or such
Mortgagee, as the case may be, at least thirty (30) days
prior to such termination date or the date Tenant is given
notice of the deficiency in the requirements for the issuing
bank, as the case may be, then, in addition to the
provisions in paragraph (i) above, demand for payment in
full under the Letter of Credit for payment into an interest
bearing security deposit account, upon which account either
Landlord or any Mortgagee to whom the Letter of Credit has
been assigned may draw, may be made by either Landlord or
any such Mortgagee.
(iii) Landlord agrees that Tenant's obligations with
respect to the provision of the Letter of Credit shall
terminate and the Letter of Credit shall be returned by
Landlord at such time as the following two (2) conditions
are satisfied with respect to Tenant for any three (3)
consecutive fiscal quarters ending after the date of this
lease:
(A) the ratio of Cash Flow to Debt Service is more
than 1.10 to 1.00, computed in each case for Tenant and
its Consolidated Subsidiaries on a consolidated basis in
accordance with generally accepted accounting principles
("GAAP") as of the end of such fiscal quarter for the
preceding twelve (12) months; and
(B) the Net Shareholder Equity of Tenant and
its Consolidated Subsidiaries on a consolidated basis in
accordance with GAAP is greater than $125,000,000. As used
in this Section 30(b), the following terms shall have the
following meanings:
"Capital Expenditures" means expenditures for assets
which are or should be capitalized and any capital leases.
"Cash Flow" means, for any period, the sum of (i)
Consolidated EBITDA minus (ii) Capital Expenditures which
were not financed with indebtedness of Tenant or its
Consolidated Subsidiaries minus (iii) all income and
franchise taxes paid in cash.
"Consolidated EBITDA" means for any period,
Consolidated Net Income for such period, plus (i) the sum of
(a) Consolidated Net Interest Expense, (b) depreciation,
amortization and other non-cash charges, (c) losses on asset
sales, exchanges, transfers or other dispositions, and (d)
extraordinary or other non-recurring losses or charges, (e)
plus income tax expense, less (ii) the sum of (a) gains on
asset sales, exchanges, transfers or other dispositions, (b)
extraordinary or other non-recurring gains or credits, and
(c) income attributable to non-cash items or other non-cash
credits, in each case to the extent included in arriving at
such net income (or loss) for such period and determined in
accordance with GAAP, provided, however, that for the
purposes of this definition, Tenant may add back the higher
cost effect of the Arden Inventory resulting in an add back
of $15,461,000 for the fiscal quarter ending April 27, 2002,
$12,309,000 for the fiscal quarter ending July 27, 2002 and
$3,968,000 for the fiscal quarter ending October 26, 2002.
"Consolidated Net Income" means, for any period, the
consolidated net income (or loss) of Tenant and its
Consolidated Subsidiaries for such period.
"Consolidated Net Interest Expense" means for any
fiscal period, the cash interest expense of Tenant and its
Consolidated Subsidiaries for such fiscal period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means at any date any
entity the accounts of which would be consolidated with
those of Tenant in its consolidated financial statements if
such statements were prepared as of such date.
"Debt Service" means, for any period, the sum
of (i) Consolidated Net Interest Expense plus (ii)
regularly scheduled principal payments made in respect
of indebtedness during such period plus (iii) all cash
dividends paid during such period.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as have
been approved by a significant segment of the accounting
profession, which are in effect on the date of this lease.
"Net Shareholder Equity" means, as at any date,
the stockholders' equity of Tenant as of such date as
determined in accordance with GAAP, which shall include,
for the purposes of this calculation, the liquidation
preference of the preferred stock having a $50,000,000
aggregate liquidation/preference value issued on January
23, 2001 to Conopco, Inc, a New York corporation,
("Conopco") by Tenant pursuant to the terms of that
certain purchase agreement dated as of October 30, 2000 by
and between Tenant and Conopco, as amended.
IN WITNESS WHEREOF, and in consideration of the mutual
entry into this lease and for other good and valuable
consideration, and intending to be legally bound,
Landlord and Tenant have executed this lease.
Date signed: Landlord:
LIBERTY PROPERTY LIMITED
January 17, 2003 PARTNERSHIP
By: Liberty Property Trust,
Sole General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Exec. Vice President and
COO
Date signed: Tenant:
January 16, 2003 XXXXXXXXX XXXXX, INC.
By: /s/ Xxx X. Xxxxxx
-----------------
Name: Xxx X. Xxxxxx
Title: VP - Operations
