EXHIBIT 10.14
LEASE AGREEMENT
BASIC LEASE PROVISIONS
THIS LEASE AGREEMENT is made as of the 31st day of December, 2001,
between FIRST AMERICAN TRUST, FSB, AS TRUSTEE UNDER TRUST AGREEMENT DATED
FEBRUARY 27, 2001 AND KNOWN AS TRUST NO. 00-0000-00 ("Landlord"), and the
Tenant named below.
TENANT: PODS, INC., a Florida corporation
TENANT'S REPRESENTATIVE, Xxxx Xxxxxx, COO, 6061 45th St. N.,
ADDRESS, AND PHONE NO.: Xx. Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
PREMISES: That portion of the Building known as
000 Xxxx Xxxx, containing approximately
39,351 square feet, as shown on Exhibit A
attached hereto.
PROJECT: The Building and the building located at
205 - 000 Xxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxx,
containing approximately 98,961 square feet,
together with the land upon which such
buildings are located and common areas
therof, including sidewalks, parking areas
and landscaped areas.
BUILDING: The building known as the East Building,
located at 245 - 000 Xxxx Xxxx, Xxxxx
Xxxxxx, Xxxxxxxx, containing approximately
95,694 square feet.
TENANT'S PROPORTIONATE 20.216%
SHARE:
LEASE TERM: Beginning on the Commencement Date and
ending on the last day of the sixty-second
(62nd) full calendar month thereafter.
COMMENCEMENT DATE: The earlier of (i) February 1, 2002, or
(ii) the date Tenant commences business
operations in the Premises.
MONTHLY BASE RENT: Months Annual Rate Per Sq. Ft. Monthly Base Rent
1-2 $00.00 $00.00
3-12 $4.75 $15,576.44
13-24 $4.87 $15,969.95
25-36 $4.99 $16,363.46
37-48 $5.12 $16,789.76
49-60 $5.25 $17,216.06
60-62 $5.38 $17,642.37
Notwithstanding anything in this Lease to the
contrary, Tenant shall be entitled to an
abatement of Monthly Base Rent in the amount of
$2,118.10 per month for four (4) consecutive
months of the Lease Term, beginning with the third
(3rd) month of the Lease Term (the "Base Rent
Abatement Period"). During the Base Rent Abatement
Period, only Monthly Base Rent in the amount of
$2,118.10 per month shall be abated and all other
Monthly Base Rent, Operating Expense Payments
(except as provided below), and other charges
specified in this Lease shall be payable.
INITIAL ESTIMATED MONTHLY 1. Common Area Charges: $1,082.15
OPERATING EXPENSE PAYMENTS:
(estimates only and subject 2. Taxes: $2,787.36
to adjustment to actual
costs and expenses according 3. Insurance $ 163.96
to the provisions of this ---------
Lease)
INITIAL ESTIMATED MONTHLY
OPERATING EXPENSE PAYMENTS: $4,033.47*
=========
Notwithstanding anything in this Lease to the contrary, Tenant shall be
also entitled to an abatement of Operating Expenses in the amount of
$548.48 per month for six (6) consecutive months of the Lease Term,
beginning with the first (1st) month of the Lease Term (the "Operating
Expenses Rent Abatement Period"). During the Operating Expenses Rent
Abatement Period, only Operating Expense Payments in the amount of
$548.48 per month shall be abated, and, except as provided above, all
Monthly Base Rent, Operating Expense Payments and other charges specified in
this Lease shall remain as due and payable pursuant to the provisions of this
Lease.
SECURITY DEPOSIT: $39,000.00
GUARANTOR: None
TENANT'S BROKER: CB Xxxxxxx Xxxxx, represented by Xxxxxxx Xxxxxxx,
Xx.
*This amount does not take into consideration any abatement provided for in
this Lease.
EXHIBITS: Exhibit A (the Premises), Exhibit B (Work Letter Agreement),
Exhibit C (Rules and Regulations), Exhibit D (Additional
Provisions) and Exhibit E (Truck Court Staging Area)
2
1. GRANTING CLAUSE AND DEFINITIONS. In consideration of the obligation
of Tenant to pay rent has herein provided and in consideration of the other
terms, covenants, and conditions hereof, Landlord leases to Tenant, and Tenant
takes from Landlord, the Premises, to have and to hold for the Lease Term,
subject to the terms, covenants and conditions of this Lease. The terms
"Tenant", "Premises", "Project", "Building", "Lease Term", "Commencement Date",
"Base Rent", and "Security Deposit" shall have the meanings set forth for such
terms in the Basic Lease Provisions.
2. COMMENCEMENT DATE; ACCEPTANCE OF PREMISES. (a) Subject to and upon
the terms and conditions set forth in this Lease, this Lease shall continue in
force for the Lease Term. Notwithstanding the Commencement Date provided in the
Basic Lease Provisions of this Lease, Tenant's obligation for the payment of
rent and the Lease Term shall not commence until Landlord has substantially
completed all work to be performed by Landlord as set forth in the Work Letter
Agreement attached hereto as Exhibit B; provided,however, that if Landlord shall
be delayed in substantially completing said work as a result of any of the
following (a "Delay");
(i) Tenant's failure to furnish information in accordance
herewith or to respond to any reasonable request by Landlord for any
approval or information within any time period prescribed, or if no
time period is prescribed, then within three (3) business days of such
request; or
(ii) Tenant's insistence on materials, finishes or
installations after having first been informed by Landlord in writing
at or before the time of delivery to Tenant of final construction
pricing for Tenant's approval that such materials, finishes or
installations will cause a Delay; or
(iii) Tenant's changes in any plans and specifications; or
(iv) The performance by a person, firm or corporation employed
by Tenant in the completion of any work by said person, firm or
corporation (all such work and such persons, firms or corporations
being subject to the approval of Landlord); or
(v) Any request by Tenant that Landlord delay the completion
of any of Landlord's work; or
(vi) Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease; or
(vii) Any delay resulting from Tenant's having taken
possession of the Premises prior to its being substantially completed,
as defined below; or
(viii) Any reasonably necessary displacement of any of
Landlord's work from its place in Landlord's construction schedule
resulting from any of the causes for Delay; or
(ix) Any other delay chargeable to Tenant, its agents,
employees or independent contractors;
then the commencement of the Lease Term and the payment of rent shall be
accelerated by the number of days of such Delay but in no event shall such
commencement be prior to the Commencement Date stipulated in the Basic Lease
Provisions. The Premises shall be deemed to be substantially completed on the
date that Landlord reasonably determines that all work to be performed by
Landlord pursuant to this Lease has been performed other than punch list items.
The term "punch list items" as used herein shall mean any details of
construction, mechanical adjustment or other matter, the non-completion of which
does not materially interfere with Tenant's use of the Premises. The abatement
of rent shall be Tenant's sole remedy and shall constitute full settlement of
all claims that Tenant might otherwise have against Landlord by reason of the
Premises not being ready for occupancy by Tenant on the Commencement Date.
Landlord's determination of the Commencement Date shall be final and binding on
all parties for all purposes hereof, including, without limitation,
determination of the date of commencement of the Lease Term and of Tenant's
obligation to pay rent hereunder.
(b) Notwithstanding anything in this Lease to the contrary, Tenant
shall accept the Premises in its condition as of the Commencement Date, subject
to all applicable laws, ordinances, regulations, covenants and restrictions.
Landlord has made no representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business, and Tenant waives any implied
warranty that the Premises are suitable for Tenant's intended purposes. TENANT
ACKNOWLEDGES THAT (1) IT HAS INSPECTED AND ACCEPTS THE PREMISES IN AN "AS IS,
WHERE IS" CONDITION (UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WORK LETTER
AGREEMENT ATTACHED HERETO, IF ANY), (2) THE BUILDING AND IMPROVEMENTS COMPRISING
THE SAME ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND
LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH
RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
PREMISES, (3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO
REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL
OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS OTHERWISE EXPRESSLY
PROVIDED IN THE WORK LETTER AGREEMENT ATTACHED HERETO, IF ANY) AND (5) THERE ARE
NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND
BEYOND THE DESCRIPTION OF THE PREMISES. Except as provided in Paragraph 10, in
no event shall Landlord have any obligation for any defects in the Premises
(other than latent defects reported to Landlord within 90 days following the
Commencement Date) or any limitation on its use. The taking of possession of the
Premises shall be conclusive evidence that Tenant accepts the Premises and that
the Premises were in good condition
1
at the time possession was taken except for items that are Landlord's
responsibility under Paragraph 10 and any punchlist items agreed to in writing
by Landlord and Tenant.
(c) If Tenant, with Landlord's prior approval, enters into the
Premises prior to the Commencement Date for the sole purpose of performing any
Landlord-approved improvements therein or installing furniture, equipment or
other personal property of Tenant, such possession shall be subject to all of
the terms and conditions of the Lease, except that Tenant shall not be required
to pay rent with respect to the period of time prior to the Commencement Date
during which Tenant performs such work. Tenant shall, however, be liable for
the actual cost of any services that are provided to Tenant or the Premises
during the period of Tenant's possession prior to the Commencement Date.
Nothing herein shall be construed as granting Tenant the right to take
possession of the Premises prior to the Commencement Date, whether for
construction, fixturing or any other purpose, without the prior consent of
Landlord.
3. USE. (a) The Premises shall be used only for the purpose of
receiving, storing, shipping, warehousing and selling (but limited to wholesale
sales) products, materials and merchandise made and/or distributed by Tenant and
for such other lawful purposes as may be incidental thereto; provided, however,
with Landlord's prior written consent, Tenant may also use the Premises for
light manufacturing. Tenant shall not conduct or give notice of any auction
(except as provided in Paragraph 3(c) below), liquidation, or going out of
business sale on the Premises. Tenant will use the Premises in a careful, safe
and proper manner and will not commit waste, overload the floor or structure of
the Premises or subject the Premises to use that would damage the Premises.
Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise, or vibrations to emanate from the Premises, or take any other action that
would constitute a nuisance or would disturb, unreasonably interfere with, or
endanger Landlord or any tenants of the Project. Except as set forth in
Paragraph 3(b) below, outside storage, including without limitation, storage of
trucks and other vehicles, is prohibited without Landlord's prior written
consent. Tenant, at it sole expense, shall use and occupy the Premises in
compliance with all laws, including, without limitation, the Americans With
Disabilities Act, orders, judgments, ordinances, regulations, codes, directives,
permits, licenses, covenants and restrictions now or hereafter applicable to the
Premises (collectively, "Legal Requirements"). The Premises shall not be used as
a place of public accommodation under the Americans With Disabilities Act or
similar state statutes or local ordinances or any regulations promulgated
thereunder, all as may be amended from time to time. Tenant shall, at its
expense, make any alterations or modifications, within or without the Premises,
that are required by Legal Requirements enacted or applicable to the Project
after the date of this Lease related to Tenant's use or occupation of the
Premises. Tenant will not use or permit the Premises to be used for any purpose
or in any manner that would void Tenant's or Landlord's insurance, increase the
insurance risk, or cause the disallowance of any sprinkler credits. If any
increase in the cost of any insurance on the Premises or the Project is caused
by Tenant's use or occupation of the Premises, or because Tenant vacates the
Premises, then Tenant shall pay the amount of such increase to Landlord. Any
occupation of the Premises by Tenant prior to the Commencement Date shall be
subject to all obligations of Tenant under this Lease. Subject to compliance
with all Legal Requirements, Landlord hereby consents to Tenant's use of diesel
powered forklifts in the Premises provided that Tenant shall not store diesel on
the Premises or the Project.
(b) Subject to compliance with all Legal Requirements and
restrictive covenants applicable to the Project, Tenant shall be entitled to
use the truck court area adjacent to the Premises shown on Exhibit E attached
hereto as an exterior staging area for storing, assembly and packing of
portable storage containers; provided that such use does not interfere with the
ingress and egress of other tenants of the Project. Tenant agrees to screen the
staging area in a manner reasonably acceptable to Landlord. Tenant agrees that
at all times during the Lease Term, it will keep the staging area in the truck
court in good condition and repair and will keep the area free of all trash or
waste materials generated by Tenant, its agents, employees or contracts.
(c) Subject to compliance with all Legal Requirements and
restrictive covenants applicable to the Project, Tenant (but not any assignee
or subtenant of Tenant) shall be entitled to conduct one (1) auction per month
inside the Premises for contents of containers of customers of Tenant that have
defaulted in payment; provided that (i) such auction is conducted after 5:00
p.m., (ii) no advertising or signage shall be placed in any location within the
Project with respect to such auction, and (iii) attendees of the auction(s)
shall not interfere with the ingress and egress of tenants of the Project.
4. BASE RENT. Tenant shall pay Base Rent in the amount set
forth in the Basic Lease Provisions. The third month's Base Rent, the Security
Deposit, and the first monthly installment of estimated Operating Expenses (as
hereafter defined) shall be due and payable on the date hereof, and Tenant
promises to pay to Landlord in advance, without demand, deduction or set-off,
monthly installments of Base Rent on or before the first day of each calendar
month succeeding the Commencement Date. Payments of Base Rent for any
fractional calendar month shall be prorated. All payments required to be made
by Tenant to Landlord hereunder shall be payable at such address as Landlord
may specify from time to time by written notice delivered in accordance
herewith. The obligation of Tenant to pay Base Rent and other sums to Landlord
and the obligation of Landlord under this Lease are independent obligations.
Tenant shall have no right at any time to xxxxx, reduce, or set-off any rent
due hereunder except as may be expressly provided in this Lease. If Tenant is
delinquent in any monthly installment of Base Rent or of estimated Operating
Expenses for more than 5 business days, Tenant shall pay to Landlord on demand
a late charge equal to 5 percent of such delinquent sum. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty. No payment by
Tenant or receipt or acceptance by Landlord of a lesser amount than the correct
installment of Rent due under this Lease shall be deemed to be other than a
payment on account of the earliest Rent due hereunder, nor shall any
endorsement or statement on any check or any letter accompanying 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
or pursue any other available remedy. The acceptance by Landlord of an
installment of Rent on a date after the due date of such payment shall not be
construed to be a waiver of Landlord's right to declare a default for any other
late payment.
2
5. Security Deposit. (a) The Security Deposit shall be held by
Landlord as security for the performance of Tenant's obligations under this
Lease. The Security Deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon each occurrence of an Event
of Default (hereinafter defined), Landlord may use all or part of the Security
Deposit to pay delinquent payments due under this Lease, and the cost of any
damage, injury, expense or liability caused by such Event of Default, without
prejudice to any other remedy provided herein or provided by law. Tenant shall
pay Landlord on demand the amount that will restore the Security Deposit to its
original amount. Landlord's obligation respecting the Security Deposit is that
of a debtor, not a trustee; no interest shall accrue thereon. The Security
Deposit shall be the property of Landlord, but shall be paid to Tenant when
Tenant's obligations under this Lease have been completely fulfilled. Landlord
shall be released from any obligation with respect to the Security Deposit upon
transfer of this Lease and the Premises to a person or entity assuming
Landlord's obligations under this Paragraph 5.
(b) Subject to the remaining terms of this Paragraph 5(b), Tenant
shall have the right to reduce the amount of the Security Deposit so that the
new Security Deposit amount will be $19,500.00 effective as of the last day of
the 30th full calendar month of the Lease Term. However, notwithstanding
anything to the contrary contained herein, if Tenant has been in default under
this Lease at any time prior to the effective date of the reduction of the
Security Deposit and Tenant has failed to cure such default within any
applicable cure period or if Tenant has failed to timely make any payment due
hereunder to Landlord, then Tenant shall have no further right to reduce the
amount of the Security Deposit as described herein. If Tenant is entitled to a
reduction in the Security Deposit, Tenant shall provide Landlord with written
notice requesting that the Security Deposit be reduced as provided above (the
"Reduction Notice"). If Tenant provides Landlord with a Reduction Notice, and
Tenant is entitled to reduce the Security Deposit as provided herein, Landlord
shall refund the applicable portion of the Security Deposit to Tenant within 45
days after the later to occur of (a) Landlord's receipt of the Reduction Notice,
or (b) the date upon which Tenant is entitled to a reduction in the Security
Deposit as provided above.
6. Operating Expense Payments. (a) During each month of the Lease
Term, on the same date that Base Rent is due, Tenant shall pay Landlord an
amount equal to 1/12 of the annual cost, as estimated by Landlord from time to
time, of Tenant's Proportionate Share (hereinafter defined) of Operating
Expenses for the Project. Payments thereof for any fractional calendar month
shall be prorated. The term "Operating Expenses" means all costs and expenses
incurred by Landlord with respect to the ownership, maintenance, and operation
of the Project including, but not limited to costs of: Taxes (hereinafter
defined) and fees payable to tax consultants and attorneys for consultation and
contesting taxes; insurance; utilities; maintenance, repair and replacement of
all portions of the Project, including without limitation, paving and parking
areas, roads, roofs, alleys, and driveways, mowing, landscaping, exterior
painting, utility lines, heating, ventilation and air conditioning systems,
lighting, electrical systems and other mechanical and building systems; amounts
paid to contractors and subcontractors for work or services performed in
connection with any of the foregoing; charges or assessments of any association
to which the Project is subject; property management fees payable to a property
manager, including any affiliate of Landlord, or if there is no property
manager, an administration fee of 15% of Operating Expenses payable to Landlord;
security services, if any; trash collection, sweeping and removal; and additions
or alterations made by Landlord to the Project or the Building in order to
comply with Legal Requirements (other than those expressly required herein to be
made by Tenant) or that are appropriate to the continued operation of the
Project or the Building as a bulk warehouse facility in the market area,
provided that the cost of additions or alterations that are required to be
capitalized for federal income tax purposes shall be amortized on a straight
line basis over a period equal to the lesser of the useful life thereof for
federal income tax purposes or 10 years. In addition, Operating Expenses shall
include the cost of insurance maintained by Landlord for the Project for each
calendar year during the Lease Term. Operating Expenses do not include costs,
expenses, depreciation or amortization for capital repairs and capital
replacements required to be made by Landlord under Paragraph 10 of this Lease,
debt service under mortgages or ground rent under ground leases, costs of
restoration to the extent of net insurance proceeds received by Landlord with
respect thereto, leasing commissions, attorney's fees, costs and disbursements
and other expenses which are incurred in connection with negotiations or
disputes with tenants, other occupants or prospective tenants, the costs of
renovating or otherwise improving or decorating leased space for tenants or
other occupants or vacant tenant space (other than ordinary maintenance
provided to all tenants), any costs or legal fees incurred in connection with
any particular tenant, Landlord's cost of electricity and other utility
services sold separately to tenants for which Landlord is entitled to be
reimbursed by such tenants as an additional charge (as opposed to a component
of Operating Expenses) and domestic water submetered and separately billed
directly to particular tenants, expenses in connection with services or other
benefits of a type which Tenant is not entitled to received under this Lease
but which are provided to other tenants or occupants without additional
charge, damages incurred due to violation by Landlord or any tenant of the
terms and conditions of any lease in the Project, costs and expenses paid to
subsidiaries or affiliates of Landlord for services on or to the Project or
the Premises to the extent that the costs of such services exceed the costs
which would be charged by an unaffiliated third party, compensation paid to
clerks, attendants or other persons in commercial concessions operated by
Landlord, advertising or promotional expenses, fines or penalties incurred as
a result of violations by Landlord of any Legal Requirement, costs of rental
or leased equipment that would be a capital expenditure if purchased, costs
incurred by Landlord to comply with the Americans with Disabilities Act in
effect on the date of this Lease, costs incurred to test, survey, cleanup,
contain, xxxxx, remove or otherwise remedy Hazardous Material (hereinafter
defined) from the Project or costs incurred to correct latent construction
defects in connection with the original construction of the Building.
(b) If Tenant's total payments of Operating Expenses for any year
are less than Tenant's Proportionate Share of actual Operating Expenses for such
year, then Tenant shall pay the difference to Landlord within 30 days after
demand, and if more, then Landlord shall retain such excess and credit it
against Tenant's next payments. For purposes of calculating Tenant's
Proportionate Share of Operating Expenses, a year shall mean a calendar year
except the first year, which shall begin on the Commencement Date, and the last
year, which shall end on the expiration of this Lease. Tenant's "Proportionate
Share" shall be the percentage set forth on the first page of this Lease as
Tenant's Proportionate Share, as reasonably adjusted by Landlord in the future
for changes in the physical size of the Premises or the Project. Landlord may
equitably increase Tenant's Proportionate Share for any item of expense or cost
reimbursable by Tenant
3
that relates to a repair, replacement, or service that benefits only the
Premises or only a portion of the Project or Building that includes the Premises
or that varies with occupancy or use. The estimated Operating Expenses for the
Premises set forth on the first page of this Lease are only estimates, and
Landlord makes no guaranty or warranty that such estimates will be accurate.
(c) Tenant shall have the right, within sixty (60) days of Tenant's
receipt of the actual Operating Expenses for any calendar year during the Lease
Term, and audit at Tenant's expense and during Landlord's normal business hours
Landlord's books and records relating to Operating Expenses for such calendar
year. If Tenant challenges Landlord's computations of the Operating Expenses for
the applicable period Tenant shall give Landlord notice stating Tenant's
objections. Any such objection shall be made within sixty (60) days after
completion of Tenant's audit, but in no event later than three (3) months after
Tenant's receipt of the actual Operating Expenses for such calendar year, or be
deemed waived. If Tenant's audit of the Operating Expenses indicates that Tenant
was overcharged for Operating Expenses, and Landlord reasonably concurs with
such determination, Landlord shall promptly repay all such overpayment to
Tenant. If Tenant's audit of the Operating Expenses indicates that Tenant was
undercharged for Operating Expenses, and Landlord reasonably concurs with such
determination, Tenant shall promptly pay such underpayment to Landlord.
Notwithstanding the foregoing, if Landlord and Tenant determine that Operating
Expenses for the year in question were less than stated by more than 5%,
Landlord, within 30 days after its receipt of paid invoices therefor from
Tenant, shall reimburse Tenant for the reasonable amounts paid by Tenant to
third parties in connection with Tenant's audit. In no event shall Tenant use an
auditor who is paid on a contingency basis or who is not a certified public
accountant. The records of Landlord reviewed by Tenant and the results of any
audit received by Tenant shall remain confidential. Unless Tenant timely
exercises its right to audit and timely delivers to Landlord an objection notice
as set forth above, the actual Operating Expense statement delivered to Tenant
shall be deemed final and accepted by Tenant.
7. UTILITIES. Tenant shall pay for all water, gas, electricity, heat,
light, power, telephone, sewer, sprinkler services, refuse and trash collection,
and other utilities and services used on the Premises, all maintenance charges
for utilities, and any storm sewer charges or other similar charges for
utilities imposed by any governmental entity or utility provider, together with
any taxes, penalties, surcharges or the like pertaining to Tenant's use of the
Premises. Landlord shall be responsible for the installation of meters for the
Premises in connection with the Landlord's Work (as defined in Exhibit B
attached hereto). To the extent possible, all utility services will be
separately metered to the Premises and placed in Tenant's name. If it is not
possible to place a utility service on a separate meter in Tenant's name, then
all costs associated with the provision of such utility service to the Premises
will, at Landlord's option, either; (a) be billed directly by Landlord to Tenant
and paid by Tenant within 30 days after receipt of such billing; or (b) included
as part of Operating Expenses and paid by Tenant in accordance with the
provisions of Paragraph 6 above. Tenant agrees to limit use of water and sewer
for normal restroom use and uses which are incidental to Tenant's business. The
failure by Landlord to any extent to furnish, or the interruption or termination
of utilities in whole or in part, resulting from adherence to laws, regulations
and administrative orders, wear, use, repairs, improvements alterations or any
other cause shall not render Landlord liable in any respect nor be construed as
a constructive eviction of Tenant, nor give rise to an abatement of rent, nor
relieve Tenant from the obligation to fulfill any covenant or agreement hereof.
8. TAXES. Landlord shall pay all taxes, assessments and governmental
charges (collectively referred to as "Taxes") that accrue against the Project
during the Lease Term, which shall be included as part of the Operating Expenses
charged to Tenant. Landlord may contest by appropriate legal proceedings the
amount, validity, or application of any Taxes or liens thereof. All capital
levies or other taxes assessed or imposed on Landlord upon the rents payable to
Landlord under this Lease and any franchise tax, any exist, transaction, sales
or privilege tax, assessment, levy or charge measured by or based, in whole or
in part, upon such rents from the Premises and/or the Project or any portion
thereof shall be paid by Tenant to Landlord monthly in estimated installments or
upon demand, at the option of Landlord, as additional rent; provided, however,
in no event shall Tenant be liable for any net income taxes imposed on Landlord
unless such net income taxes are in substitution for any Taxes payable
hereunder. If any such tax or excise is levied or assessed directly against
Tenant, then Tenant shall be responsible for and shall pay the same at such
times and in such manner as the taxing authority shall require. Tenant shall be
liable for all taxes levied or assessed against any personal property or
fixtures placed in the Premises, whether levied or assessed against Landlord or
Tenant, and if any such taxes are levied or assessed against Landlord or
Landlord's property and (a) Landlord pays them or (b) the assessed value of
Landlord's property is increased thereby and Landlord pays the increased taxes,
then Tenant shall pay to Landlord such taxes within ten (10) days after
Landlord's request therefor.
9. INSURANCE. (a) Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building. Landlord may, but is not
obligated to, maintain such other insurance and additional coverages as it may
deem necessary, including, but not limited to, commercial liability insurance
and rent loss insurance. All such insurance shall be included as part of the
Operating Expenses charged to Tenant. The Project or Building may be included in
a blanket policy (in which case the cost of such insurance allocable to the
Project or Building will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any documented increased
premiums or additional insurance which Landlord reasonably deems necessary as a
result of Tenant's use of the Premises.
(b) Effective as of the earlier of: (1) the date Tenant enters or
occupies the Premises; or (2) the Commencement Date, and continuing during the
Lease term, Tenant, at its expense, shall maintain during the Lease Term: all
risk property insurance covering the full replacement cost of all property and
improvements installed or placed in the Premises by Tenant at Tenant's expense;
worker's compensation insurance with no less than the minimum limits required by
law; employer's liability insurance with such limits as required by law; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $2,000,000 for a total minimum
combined general liability and umbrella limit of $3,000,000 (together with such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths of persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in any
such limits. The commercial liability
4
policies shall name Landlord as an additional insured, insure on an occurrence
and not a claims-made basis, be issued by insurance companies which are
reasonably acceptable to Landlord, not be cancelable unless 30 days prior
written notice shall have been given to Landlord, contain a hostile fire
endorsement or amended pollution endorsement and a contractual liability
endorsement and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over
Tenant's policies). Such policies or certificates thereof shall be delivered to
Landlord by Tenant at least ten (10) days prior to the Commencement Date and at
least fifteen (15) days prior to each renewal of said insurance. If Tenant
fails to comply with the foregoing insurance requirements or to deliver to
Landlord copies of such policies and certificates evidencing the coverage
required herein, Landlord, in addition to any remedy available pursuant to this
Lease or otherwise, may, but shall not be obligated to, obtain such insurance
and Tenant shall pay to Landlord on demand the premium costs thereof, plus an
administrative fee of fifteen percent (15%) of the cost.
(c) The all risk property insurance obtained by Landlord and
Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against, even if the same is
caused by the negligence of the other party. Neither party nor its officers,
directors, employees, managers, agents, invitees or contractors shall be liable
to the other for loss or damage caused by any risk coverable by all risk
property insurance, and each party waives any claims against the other party,
and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage, even if the same is caused by the
negligence of the released party. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby waives all claims
against such parties for, business interruption and losses occasioned thereby
sustained by Tenant or any person claiming through Tenant resulting from any
accident or occurrence in or upon the Premises or the Project from any cause
whatsoever, except to the extent caused by the gross negligence of Landlord.
10. LANDLORD'S REPAIRS. Landlord shall maintain the structural
soundness of the roof, foundation, and exterior walls of the Building in good
repair, reasonable wear and tear and uninsured losses and damages caused by
Tenant, its agents and contractors excluded. The term "walls" as used in this
Paragraph 10 shall not include windows, glass or plate glass, doors or overhead
doors, special store fronts, dock bumpers, dock plates or levelers, or office
entries. Tenant shall promptly give Landlord written notice of any repair
required by Landlord pursuant to this Paragraph 10, after which Landlord shall
have a reasonable opportunity to repair. Landlord shall also maintain in good
repair and condition the parking areas and other common areas of the Building,
including, but not limited to driveways, alleys, landscape and grounds
surrounding the Premises. All costs incurred by Landlord in connection with
maintenance and repair of the roof, foundation, exterior walls and common
areas will be considered Operating Expenses. Tenant will be responsible for the
payment of all costs associated with Landlord's maintenance if the need
therefor arises due to the fault or negligence of Tenant or its agents,
employees, licenses or invitees. Except as otherwise expressly provided in this
Xxxxxxxxx 00, Xxxxxxxx will not at any time be required to make any
improvements, repairs, replacements or alterations to the Premises unless the
need for same is caused by Landlord's gross negligence.
11. TENANT'S REPAIRS. Subject to Landlord's obligation in
Paragraph 10 and subject to Paragraphs 9 and 15, Tenant, at its expense, shall
repair, replace and maintain in good condition all portions of the Premises and
all areas, improvements and systems exclusively serving the Premises including,
without limitation, dock and loading areas, truck doors, plumbing, water and
sewer lines up to points of common connection, fire sprinklers and fire
protection systems, entries, doors, ceilings and roof membrane, windows,
interior walls, and the interior side of demising walls, and heating,
ventilation and air conditioning systems. Such repair and replacements include
capital expenditures and repairs whose benefit may extend beyond the Term.
Heating, ventilation and air conditioning systems and other mechanical and
building systems serving the Premises shall be maintained at Tenant's expense
pursuant to maintenance service contracts entered into by Tenant or, at
Landlord's written election, by Landlord (but at Tenant's expense). The scope
of services and contractors under such maintenance contracts shall be subject to
Landlord's reasonable prior written approval. If Tenant fails to perform any
repair or replacement for which it is responsible, Landlord may perform such
work and be reimbursed by Tenant within 10 days after demand therefor, together
with an administration charge in an amount equal to 5% of the cost of the
repairs. Subject to Paragraphs 9 and 15, Tenant shall bear the full cost of
any repair or replacement to any part of the Building or Project that results
from damage caused by Tenant, its agents, contractors, or invitees and any
repair that benefits only the Premises. Within the fifteen (15) day period
prior to the expiration or termination of this Lease, Tenant shall deliver to
Landlord a certificate from an engineer reasonably acceptable to Landlord
certifying that the hot water equipment and the HVAC system are then in good
repair and working order.
12. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. (a) Any
alterations, additions, or improvements made by or on behalf of Tenant to the
Premises ("Tenant-Made Alterations") shall be subject to Landlord's prior
written consent, which consent shall not be unreasonably withheld provided that
the same will not (i) affect any structural or load bearing portions of the
Building, (ii) adversely impact mechanical, electrical or plumbing systems in
the Premises or the Building, or (iii) affect areas of the Premises which can
be viewed from common areas of the Project. Tenant shall cause, at its expense,
all Tenant-Made Alterations to comply with insurance requirements and with
Legal Requirements and shall construct at its expense any alteration or
modification required by Legal Requirements as a result of any Tenant-Made
Alterations. All Tenant-Made Alterations shall be constructed in a good and
workmanlike manner by contractors reasonably acceptable to Landlord and only
good grades of materials shall be used. All plans and specifications for any
Tenant-Made Alterations shall be submitted to Landlord for its approval.
Landlord may monitor construction of the Tenant-Made Alterations. Tenant shall
reimburse Landlord for its reasonable costs in reviewing plans and
specifications. Landlord's right to review plans and specifications and to
monitor construction shall be solely for its own benefit, and Landlord shall
have no duty to see that such plans and specifications or construction comply
with applicable laws, codes, rules and regulations. Tenant shall provide
Landlord with the identities and mailing addresses of all persons performing
work or supplying materials, prior to beginning such construction, and Landlord
may post on and about the Premises notices of non-responsibility pursuant to
applicable law. Tenant shall furnish security or make other arrangements
satisfactory to Landlord to assure payment for the completion of all work free
and clear of liens and shall
5
provide certificates of insurance for worker's compensation and other coverage
in amounts and from an insurance company satisfactory to Landlord protecting
Landlord against liability for personal injury or property damage during
construction. Upon completion of any Tenant-Made Alterations, Tenant shall
deliver to Landlord sworn statements setting forth the names of all contractors
and subcontractors who did work on the Tenant-Made Alterations and final lien
waivers from all such contractors and subcontractors. Upon surrender of the
Premises, all Tenant-Made Alterations and any leasehold improvements constructed
by Landlord or Tenant shall remain on the Premises as Landlord's property,
except to the Landlord requires removal at Tenant's expense of any such items or
Landlord and Tenant have otherwise agreed in writing in connection with
Landlord's consent to any Tenant-Made Alterations. Tenant shall repair any
damage caused by such removal.
(b) Tenant, at its own cost and expense and without Landlord's
prior approval, may erect such shelves, bins, machinery and trade fixtures
(collectively "Trade Fixtures") in the ordinary course of its business provided
that such items do not alter the basic character of the Premises, do not
overload or damage the Premises, and may be removed without injury to the
Premises, and the construction, erection, and installation thereof complies with
all Legal Requirements and with Landlord's requirements set forth above. At the
expiration or earlier termination of this Lease, Tenant shall remove its Trade
Fixtures and shall repair any damage caused by such removal.
13. SIGNS. (a) Tenant shall not make any changes to the exterior
of the Premises, install any exterior lights, decorations, balloons, flags,
pennants, banners, or painting, or erect or install any signs, windows or door
lettering, placards, decorations, or advertising media of any type which can be
viewed from the exterior of the Premises, without Landlord's prior written
consent. Upon surrender or vacation of the Premises, Tenant shall have removed
all signs and repair, paint, and/or replace the building facia surface to which
its signs are attached. Tenant shall obtain all applicable governmental permits
and approvals for sign and exterior treatments. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or
other security installations visible from outside the Premises shall be subject
to Landlord's approval (which Landlord shall give or withhold within 10
business days after receipt of request for approval) and conform in all
respects to Landlord's requirements. Tenant shall be entitled to Building
standard lettering containing Tenant's name on Tenant's entrance door to the
Premises.
(b) So long as (i) Tenant is not in default under the terms of
the Lease beyond any applicable notice and cure periods; (ii) Tenant is in
occupancy of the Premises; and (iii) Tenant has not assigned the Lease or
sublet the entire Premises other than to a Tenant Affiliate, Landlord shall
list Tenant's name on the shared Building monument sign located on the Project
(the "Monument Sign").
14. PARKING. Tenant shall be entitled to use up to 15 parking
spaces on an unreserved basis in those areas of the Project designated for
unreserved parking. Landlord may allocate parking spaces among Tenant and other
tenants in the Project if Landlord determines that such parking facilities are
becoming crowded. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties.
15. CASUALTY. In the event that the Building should be totally
destroyed by fire or other casualty or in the event the Building (or any
portion thereof) should be so damaged that rebuilding or repairs cannot be
completed, in Landlord's reasonable opinion, within one hundred eighty (180)
days after the date of the casualty, Landlord may, at its option, terminate
this Lease, in which event Base Rent and Tenant's Proportionate Share of
Operating Expenses shall be abated during the unexpired portion of this Lease
effective with the date of such damage. Landlord shall exercise the termination
right pursuant to the preceding sentence, if at all, by delivering written
notice of termination to Tenant within (10) days after determining that the
repairs cannot be completed within such one hundred eighty (180) day period. In
the event that the Premises should be so damaged by fire or other casualty that
rebuilding or repairs cannot be completed, in Landlord's reasonable opinion,
within one hundred eighty (180) days after the commencement of repairs to the
Premises, Tenant may, at its option terminate this Lease, in which event Base
Rent and Tenant's Proportionate Share of Operating Expenses shall be abated
during the unexpired portion of this Lease, effective the date of termination.
Tenant shall exercise the termination right pursuant to the preceding sentence,
if at all, by delivering written notice of termination to Landlord within ten
(10) days after being advised by Landlord that the repairs cannot be completed
within such one hundred eighty (180) day period. In the event the Building or
the Premises should be damaged by fire or other casualty and, in Landlord's
reasonable opinion, the rebuilding or repairs can be completed within one
hundred eighty (180) days after the date of the casualty, or if the damage
should be more serious but neither Landlord nor Tenant elect to terminate this
Lease pursuant to this Paragraph, in either such event Landlord shall, within
sixty (60) days after the date of such damage, commence (and thereafter pursue
with reasonable diligence) repairing the Building and the Premises, but only to
the extent of insurance proceeds actually received by Landlord for such
repairs, to substantially the same condition which existed immediately prior to
the happening of the casualty. In no event shall Landlord be required to
rebuild, repair or replace any part of the furniture, equipment, fixtures,
inventory, supplies or any other personalty or any other improvements which may
have been placed by Tenant within the Building or at the Premises. Landlord
shall allow Tenant a fair abatement of Base Rent and Tenant's Proportionate
Share of Operating Expenses during the time the Premises are unfit for
occupancy; provided, that if such casualty was caused by Tenant, its agents,
employees, licensees or invitees, Base Rent and Tenant's Proportionate Share of
Operating Expenses shall be abated only to the extent Landlord is compensated
for the same by loss of rents insurance, if any. Notwithstanding Landlord's
restoration obligation, in the event any mortgagee under a deed of trust,
security agreement or mortgage on the Building should require that the
insurance proceeds be used to retire or reduce the mortgage debt or if the
insurance company issuing Landlord's fire and casualty insurance policy fails
or refuses to pay Landlord the proceeds under such policy, Landlord shall have
no obligation to rebuild and this Lease shall terminate upon notice by
Landlord to Tenant. Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or to the Premises shall be for the sole
benefit of the party carrying such insurance and under its sole control.
16. CONDEMNATION. If any part of the Premises or the Project
should be taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or by private
6
purchase in lieu thereof (a "Taking" or "Taken"), and the Taking would prevent
or materially interfere with Tenant's use of the Premises or in Landlord's
judgment would materially interfere with or impair its ownership or operation of
the Project, then upon written notice by Landlord this Lease shall terminate and
Base Rent shall be apportioned as of said date. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, the Base Rent payable
hereunder during the unexpired Lease Term shall be reduced to such extent as may
be fair and reasonable under the circumstances. In the event of any such Taking,
Landlord shall be entitled to receive the entire price or award from any such
Taking without any payment to Tenant, and Tenant hereby assigns to Landlord
Tenant's interest, if any, in such award. Tenant shall have the right, to the
extent that same shall not diminish Landlord's award, to make a separate claim
against the condemning authority (but not Landlord) for such compensation as may
be separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's Trade Fixtures, if a separate award for such items is made to Tenant.
17. ASSIGNMENT AND SUBLETTING. (a) Without Landlord's prior written
consent (which shall not be unreasonably withheld so long as Landlord does not
exercise its right to terminate this Lease as provided below), Tenant shall not
assign this Lease or sublease the Premises or any part thereof or mortgage,
pledge, or hypothecate its leasehold interest or grant any concession or license
within the Premises and any attempt to do any of the foregoing shall be void and
of no effect. For purposes of this paragraph, a transfer of the ownership
interests controlling Tenant shall be deemed an assignment of this Lease unless
such ownership interests are publicly traded. Notwithstanding the above, Tenant
may assign or sublet the Premises, or any part thereof, to any entity
controlling Tenant, controlled by Tenant or under common control with Tenant (a
"Tenant Affiliate"), without the prior written consent of Landlord, provided (1)
Tenant is not in default under this Lease; (2) such proposed transferee operates
the business in the Premises for the Permitted Use and no other purpose; and (3)
Tenant shall give Landlord written notice at least thirty (30) days prior to the
effective date of the proposed assignment or sublease.
(b) If Tenant desires the consent of Landlord to a proposed assignment
or sublease (other than to a Tenant Affiliate), Tenant shall submit to Landlord,
at least 20 days prior to the proposed effective date of the assignment or
sublease, a written notice which includes such information as Landlord may
required about the proposed assignment or sublease, including without
limitation, current financial statements of the proposed assignee or subtenant,
together with a non-refundable processing fee in the amount of $500.00. Tenant
shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses
in connection with any proposed assignment or sublease. If Landlord does not
terminate this Lease, in whole or in part, as provided below, Landlord shall not
unreasonably withhold its consent to any assignment or sublease, which consent
or lack thereof shall be provided within 20 days after receipt of Tenant's
notice and required information. Landlord shall not be deemed to have
unreasonably withheld its consent if, in the judgment of Landlord: (i) the
transferee is of a character or engaged in a business which is not in keeping
with the standards or criteria used by Landlord in leasing the Building; (ii)
the financial condition of the transferee is such that it may not be able to
perform its obligations in connection with this Lease; (iii) the transferee is a
tenant or of negotiating for space in the Project; (iv) the transferee is a
governmental unit; (v) Tenant is in default under this Lease; or (vi) the
assignment or sublease would violate any term, condition, covenant or agreement
of Landlord involving the Building, the Project or sublease would violate any
term, condition, covenant or agreement of Landlord involving the Building, the
Project or any other tenant's lease within the Building or the Project. Landlord
shall have the right to terminate this Lease as to that portion of the Premises
covered by a proposed assignment or sublease (other than to a Tenant Affiliate).
Landlord may exercise such right to terminate by giving notice to Tenant at any
time within 20 days after the date on which Tenant has furnished to Landlord all
of the items required under this Paragraph 17(b). If Landlord exercises such
right to terminate, Landlord shall be entitled to recover possession of, and
Tenant shall surrender such portion of, the Premises (with appropriate demising
partitions erected at the expense of Tenant) on the later of (i) the effective
date of the proposed assignment or sublease, or (ii) 20 days after the date of
Landlord's notice of termination.
(e) Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of the Tenant's other obligations under this Lease
(regardless of whether Landlord's approval has been obtained for any such
assignments or sublettings). In the event that the rent due and payable by a
subleasee or assignee (or a combination of the rental payable under such
sublease or assignment plus any bonus or other consideration therefor or
incident thereto) exceeds the rental payable under this Lease, then Tenant shall
be bound and obligated to pay Landlord as additional rent hereunder fifty
percent (50%) all such excess rental and other excess consideration (after
deduction of Tenant's actual out-of-pocket marketing and commission expenses in
connection with such sublease or assignment) within 10 days following receipt
thereof by Tenant.
(d) If this Lease be assigned or if the Premises be subleased (whether
in whole or in part) or in the event of the mortgage, pledge, or hypothecation
of Tenant's leasehold interest or grant of any concession or license within the
Premises or if the Premises be occupied in whole or in part by anyone other than
Tenant, then upon a default by Tenant hereunder Landlord may collect rent from
the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold
interest was hypothecated, concessionee or licensee or other occupant and,
except to the extent set forth in the preceding paragraph, apply the amount
collected to the next rent payable hereunder; and all such rentals collected by
Tenant shall be held in trust for Landlord and immediately forwarded to
Landlord. No such transaction or collection of rent or application thereof by
Landlord, however, shall be deemed a waiver of these provisions or a release of
Tenant from the further performance by Tenant of its covenants, duties, or
obligations hereunder.
18. INDEMNIFICATION. Tenant agrees to indemnify, defend (with counsel
reasonably acceptable to Landlord) and hold harmless Landlord, and Landlord
agents, employees and contractors, from and against any and all claims, demands,
losses, liabilities, cause of action, suits, judgments, damages costs and
expenses (including attorney's fees) arising from any occurrence on the
Premises, the use and occupancy of the Premises, or from any activity, work, or
thing done, permitted or suffered by Tenant in or about the Premises or due to
any other act or omission of Tenant, its subtenants, assignees, invitees,
employees, contractors and agents, or from Tenant's failure to perform its
obligations under this Lease (other than any loss arising from the gross
negligence or willful misconduct of Landlord or it's agents).
7
term different than the remaining Lease Term, rental concessions, alterations
and repair of the Premises, lease of less than the entire Premises to any
tenant and leasing any or all other portions of the Project before reletting
the Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises or
collect rent due in respect of such reletting.
25. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not
be in default hereunder unless Landlord fails to perform any of its
obligations hereunder within 30 days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature of the
obligation, require a period of time in excess of 30 days, then after such
period of time as is reasonably necessary). All obligations of Landlord
hereunder shall be construed as covenants, not conditions; and, except as may
be otherwise expressly provided in this Lease Tenant may not terminate this
Lease for breach of Landlord's obligations hereunder. All obligations of
Landlord under this Lease will be binding upon Landlord only during the period
of its ownership of the Premises and not thereafter. The term "Landlord" in
this Lease shall mean only the owner, for the time being of the Premises, and
in the event of the transfer by such owner of its interest in the Premises, such
owner shall thereupon be released and discharged from all obligations of
Landlord thereafter accruing, but such obligations shall be binding during the
Lease Term upon each new owner for the duration of such owner's ownership. Any
liability of Landlord under this Lease shall be limited solely to its interest
in the Project, and in no event shall any personal liability be asserted
against Landlord in connection with this Lease nor shall any recourse be had to
any other property or assets of Landlord.
26. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO
TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING
OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the lien of
any first mortgage, now existing or hereafter created on or against the Project
or the Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant
agrees, at the election of the holder of any such mortgage, to attorn to any
such holder. Tenant agrees upon demand to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment
as shall be requested by any such holder. Tenant hereby appoints Landlord
attorney in fact for Tenant irrevocably (such power of attorney being coupled
with an interest) to execute, acknowledge and deliver any such instrument and
instruments for and in the name of the Tenant and to cause any such instrument
to be recorded. Notwithstanding the foregoing, any such holder may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution, delivery or
recording and in that event such holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of such mortgage and had been assigned to such holder.
The term "mortgage" whenever used in this Lease shall be deemed to include
deeds of trust, security assignments and any other encumbrances, and any
reference to the "holder" of a mortgage shall be deemed to include the
beneficiary under a deed of trust.
28. MECHANIC'S LIENS. Tenant has no express or implied authority
to create or place any lien or encumbrance of any kind upon, or in any manner
to bind the interest of Landlord or Tenant in, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the interest of Landlord in the Premises or under
this Lease. Tenant shall give Landlord immediate written notice of the placing
of any lien or encumbrance against the Premises and cause such lien or
encumbrance to be discharged within 30 days of the filing or recording thereof;
provided, however, Tenant may contest such liens or encumbrances as long as
such contest prevents foreclosure of the lien or encumbrance and Tenant
causes such lien or encumbrance to be bonded or insured over in a manner
satisfactory to Landlord within such 30 day period.
29. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time,
within ten (10) business days after request of Landlord, to execute and deliver
to Landlord, or Landlord's designee, any estoppel certificate requested by
Landlord, stating that this Lease is in full force and effect, the date to
which rent has been paid, that Landlord is not in default hereunder (or
specifying in detail the nature of Landlord's default), the termination date of
this Lease and such other matters pertaining to this Lease as may be requested
by Landlord. Tenant's obligation to furnish each estoppel certificate in a
timely fashion is a material inducement for Landlord's execution of this Lease.
No cure or grace period provided in this Lease shall apply to Tenant's
obligations to timely deliver an estoppel certificate. Tenant hereby
irrevocably appoints Landlord as its attorney in fact to execute on its behalf
and in its name any such estoppel certificate if Tenant fails to execute and
deliver the estoppel certificate within 10 days after Landlord's written
request thereof.
30. ENVIRONMENTAL REQUIREMENTS. (a) Except for Hazardous Material
contained in products used by Tenant in de minimis quantities for ordinary
cleaning and office purposes, Tenant shall not permit or cause any party to
bring Hazardous Material upon the Premises or transport, store, use, generate,
manufacture, dispose, or release any Hazardous Material on or from the Premiss
without Landlord's prior written consent. Tenant, at it's sole cost and
expense, shall operate its business in the Premises in strict compliance with
all Environmental Requirements and all requirements of this Lease. Tenant shall
complete and certify to disclosure statements as requested by Landlord from
time to time relating to Tenant's transportation, storage, use, generation,
manufacture, or release of Hazardous Materials on the Premises, and Tenant
shall promptly deliver to Landlord a copy of any notice of violation relating
to the Premises or Project of any Environmental Requirement.
10
(vii) Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Paragraph
23, and except as otherwise expressly provided herein, such default
shall continue for more than 30 days after Landlord shall have given
Tenant written notice of such default.
In the event Tenant fails to take possession of and occupy the Premises
within sixty (60) days following the Commencement Date or if Tenant vacates all
or substantially all of the Premises for any period of sixty (60) or more
consecutive days (other than a vacancy due to a casualty or condemnation),
Tenant shall keep all Building systems in the Premises operating at levels
necessary to prevent damage to the Building or Building systems, as reasonably
determined by Landlord. Further, in the event Tenant vacates all or
substantially all of the Premises for any period of sixty (60) or more
consecutive days (other than a vacancy due to a casualty, condemnation, or a
vacancy for which Tenant is expressly entitled to abatement of rent under this
Lease), such vacancy shall not be a default hereunder, however, in such event
Landlord shall have the right, but not the obligation, to terminate this Lease
by delivering written notice of termination to Tenant prior to the date that
Tenant re-occupies all or substantially all of the Premises.
24. LANDLORD'S REMEDIES. (a) Upon each occurrence of an Event
of Default and so long as such Event of Default shall be continuing, Landlord
may at any time thereafter at its election: terminate this Lease or Tenant's
right of possession (but Tenant shall remain liable as hereinafter provided)
and/or pursue any other remedies at law or in equity. Upon the termination of
this Lease or termination of Tenant's right of possession, it shall be lawful
for Landlord, without formal demand or notice of any kind, to re-enter the
Premises by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and
equipment at the Premises.
(b) If Landlord terminates this Lease, Landlord may recover from
Tenant and Tenant shall pay to Landlord, on demand, as and for liquidated and
final damages, an accelerated lump sum equal to the sum of: (i) all Base Rent
and all other amounts accrued hereunder to the date of such termination, plus
(ii) the amount by which Landlord's estimate of the aggregate amount of Rent
owing from the date of such termination through the expiration date of the
Lease Term plus Landlord's estimate of the aggregate expenses of reletting the
Premises, exceeds Landlord's estimate of the fair rental value of the Premises
for the same period (after deducting from such fair rental value the time
needed to relet the Premises and the amount of concessions which would normally
be given to a new tenant), both discounted to present valued at the rate of
five percent (5%) per annum.
(c) Tenant shall not be entitled to recover possession of the
Premises, terminate this Lease, or recover any actual, incidental,
consequential, punitive, statutory or other damages or award of attorney's
fees, by reason of Landlord's alteration or change of any lock or other
security device and the resulting exclusion from the Premises of the Tenant or
Tenant's agents, servants, employees, customers, licensees, invitees or any
other persons from the Premises.
(d) If Landlord terminates Tenant's right of possession (but not
this Lease), Landlord may, but shall be under no obligation to, relet the
Premises for the account of Tenant for such rent and upon such terms as shall
be satisfactory to Landlord without thereby releasing Tenant from any liability
hereunder and without demand or notice of any kind to Tenant. For the purpose
of such reletting Landlord is authorized to make any repairs, changes,
alterations, or additions in or to the Premises as Landlord deems reasonably
necessary or desirable. If the Premises are not relet, then Tenant shall pay to
Landlord as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, plus the cost of recovering possession of the
Premises (including attorney's fees and costs of suit), the unpaid Base Rent
and other amounts accrued hereunder at the time of repossession, and the costs
incurred in any attempt by Landlord to relet the Premises. If the Premises are
relet and a sufficient sum shall not be realized from such reletting [after
first deducting therefrom, for retention by Landlord, the unpaid Base Rent and
other amounts accrued hereunder at the time of reletting, the cost of
recovering possession (including attorneys' fees and costs of suit), all of the
costs and expense of repairs, changes, alterations, and additions, the expense
of such reletting (including without limitation brokerage fees and leasing
commissions) and the cost of collection of the rent accruing therefrom] to
satisfy the rent provided for in this Lease to be paid, then Tenant shall
immediately satisfy and pay any such deficiency. Any such payments due Landlord
shall be made upon demand therefor from time to time and Tenant agrees that
Landlord may file suit to recover any sums falling due from time to time.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect in writing to terminate this Lease for such previous
breach.
(e) Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of
Landlord and Tenant. Any law, usage, or custom to the contrary notwithstanding,
Landlord shall have the right at all times to enforce the provisions of this
Lease in strict accordance with the terms hereof; and the failure of Landlord at
all times to enforce its rights under this Lease strictly in accordance with
same shall not be construed as having created a custom in any way or manner
contrary to the specific terms, provisions, and covenants of this Lease or as
having modified the same. Tenant and Landlord further agree that forbearance or
waiver by Landlord to enforce its rights pursuant to this Lease or at law or in
equity, shall not be a waiver of Landlord's right to enforce one or more of its
rights in connection with any subsequent default. A receipt by Landlord of rent
or other payment with knowledge of the breach of any covenant hereof shall not
be deemed a waiver of such breach, and no waiver by Landlord of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Landlord. To the greatest extent permitted by law, Tenant waives the
service of notice of Landlord's intention to re-enter as provided for in any
statute, or to institute legal proceedings to that end, and also waives all
right of redemption in case Tenant shall be dispossessed by a judgment or by
warrant of any court or judge. The terms "enter," "re-enter," "entry" or
"re-entry," as used in this Lease, are not restricted to their technical legal
meanings. Any reletting of the Premises shall be on such terms and conditions as
Landlord in its sole discretion may determine (including without limitation a
9
This indemnity provision shall survive termination or expiration of this Lease.
The furnishing of insurance required hereunder shall not be deemed to limit
Tenant's obligations under this Paragraph 18.
19. INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises at any reasonable time
to inspect the Premises and to make such repairs as may be required or
permitted pursuant to this Lease and for any other business purpose. Landlord
and Landlord's representatives may enter the Premises during business hours for
the purpose of showing the Premises to prospective purchasers and, during the
last six (6) months of the Lease Term, to prospective tenants. Tenant shall
have the right to have a representative of Tenant accompany Landlord during any
entry into the Premises provided that Tenant makes such representative available
at the time Landlord desires to enter. Landlord may erect a suitable sign on
the Premises stating the Premises are available to let or that the Project is
available for sale. Landlord may grant easements, make public dedications,
designate common areas and create restrictions on or about the Premises,
provided that no such easement, dedication, designation or restriction
materially interferes with Tenant's use or occupancy of the Premises. At
Landlord's request, Tenant shall execute such instruments as may be necessary
for such easements, dedications or restrictions. Landlord shall have the right
to temporarily close the Premises or the Building to perform repairs,
alterations or additions in the Premises or the Building, provided that
Landlord shall use reasonable efforts to perform all such work on weekends and
after Normal Business Hours. Entry by Landlord hereunder shall not constitute a
constructive eviction or entitle Tenant to any abatement or reduction of rent
by reason thereof. Landlord will interfere with Tenant's business operations in
the Premises as little as reasonably practicable during any entry by Landlord.
20. QUIET ENJOYMENT. If Tenant shall perform all of the covenants
and agreements herein required to be performed by Tenant, Tenant shall, subject
to the terms of this Lease, at all times during the Lease Term, have peaceful
and quiet enjoyment of the Premises against any person claiming by, through or
under Landlord.
21. SURRENDER. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the
Premises to Landlord in the same condition as received, broom clean, ordinary
wear and tear and casualty loss and condemnation covered by Paragraphs 15 and
16 excepted. Any Trade Fixtures, Tenant-Made Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned and
may be stored, removed, and disposed of by Landlord at Tenant's expense, and
Tenant waives all claims against Landlord for any damages resulting from
Landlord's retention and disposition of such property. All obligations of
Tenant hereunder not fully performed as of the termination of the Lease Term
shall survive the termination of the Lease Term, including without limitation,
indemnity obligations, payment obligations with respect to Operating Expenses
and obligations concerning the condition and repair of the Premises.
22. HOLDING OVER. If Tenant retains possession of the Premises
after the termination of the Lease Term, unless otherwise agreed in writing,
such possession shall be subject to immediate termination by Landlord at any
time, and all of the other terms and provisions of this Lease (excluding any
expansion or renewal option or other similar right or option) shall be
applicable during such holdover period, except that Tenant shall pay Landlord
from time to time, upon demand, as Base Rent for the holdover period, an amount
equal to 150% of the Base Rent in effect on the termination date, computed on a
monthly basis for each month or part thereof during such holding over. All
other payments shall continue under the terms of this Lease. In addition,
Tenant shall be liable for all damages incurred by Landlord as a result of such
holding over. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend this Lease except as otherwise expressly
provided, and this Paragraph 22 shall not be construed as consent for Tenant to
retain possession of the Premises.
23. EVENTS OF DEFAULT. Each of the following events shall be an
event of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent
or any other payment required herein when due, and such failure shall
continue for a period of 5 business days after notice from Landlord
(which notice may be in the form of a Landlord statutory 5 day notice).
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action
seeking to have an order for relief entered on its behalf as a debtor
or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it
or its debts or seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or of any substantial part
of its property (collectively a "proceeding for relief"); (C) become
the subject of any proceeding for relief which is not dismissed within
60 days of its filing or entry; or (D) die or suffer a legal disability
(if Tenant, guarantor, or surety is an individual) or be dissolved or
otherwise fail to maintain its legal existence (if Tenant, guarantor or
surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be canceled or terminated or shall expire
or shall be reduced or materially changed, except, in each case, as
permitted in this Lease.
(iv) Intentionally omitted.
(v) Tenant shall attempt or there shall occur any
assignment, subleasing or other transfer of Tenant's interest in or
with respect to this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon
the Premises in violation of this Lease within 30 days after any such
lien or encumbrance is filed against the Premises.
8
(b) The term "Environmental Requirements" means all applicable
present and future statutes, regulations, ordinances, rules, codes, judgments,
permits, authorizations, orders, policies or other similar requirements of any
governmental authority, agency or court regulating or relating to health,
safety, or environmental conditions on, under, or about the Premises or the
environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; the Clean Air Act; the Clean Water Act; the
Toxic Substances Control Act and all state and local counterparts thereto, and
any common or civil law obligations including, without limitation, nuisance or
trespass, and any other requirements or Paragraphs 4 and 31 of this Lease. The
term "Hazardous Materials" means and includes any substance, material, waste,
pollutant or contaminant that is or could be regulated under any Environmental
Requirement or that may adversely affect human health or the environment,
including, without limitation, any solid or hazardous waste, hazardous
substance, asbestos, petroleum (including crude oil or any fraction thereof,
natural gas, synthetic gas, polychlorinated biphenyls (PCBs), and radioactive
material). For purposes of Environmental Requirements, to the extent authorized
by law, Tenant is and shall be deemed to be the responsible party, including
without limitation, the "owner" and "operator" of Tenant's "facility" and the
"owner" of all Hazardous Materials brought on the Premises by Tenant, its
agents, employees, contractors or invitees, and the wastes, by-products, or
residues generated, resulting, or produced therefrom.
(c) Tenant, at its sole cost and expense, shall remove all
Hazardous Materials stored, disposed of or otherwise released by Tenant, its
assignees, subtenants, agents, employees, contractors or invitees onto or from
the Premises, in a manner and to a level satisfactory to Landlord in its sole
discretion, but in no event to a level and in a manner less than that which
complies with all Environmental Requirements and does not limit any future uses
of the Premises or require the recording of any deed restriction or notice
regarding the Premises. Tenant shall perform such work at any time during the
period of the Lease upon written request by Landlord or, in the absence of a
specific request by landlord, before Tenant's right to possession of the
Premises terminates or expires. If Tenant fails to perform such work within the
time period specified by Landlord or before Tenant's rights to possession
terminates or expires (whichever is earlier), Landlord may at its discretion,
and without waiving any other remedy available under this Lease or at law or
equity (including without limitation an action to compel Tenant to perform such
work), perform such work at Tenant's cost. Tenant shall pay all costs incurred
by Landlord in performing such work within ten (10) days after Landlord's
request therefor. Such work performed by Landlord on behalf of Tenant and
Tenant remains the owner, generator, operator, transporter, and/or arranger of
the Hazardous Materials for purpose of Environmental Requirements. Tenant
agrees not to enter into any agreement with any person, including without
limitation any governmental authority, regarding the removal of Hazardous
Materials that have been disposed of or otherwise released onto or from the
Premises without the written approval of the Landlord.
(d) Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation, diminution
in value of the Premises or the Project and loss of rental income from the
Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including without limitation,
remediation, removal, repair, corrective action, or cleanup expenses), and
costs (including without limitation, actual attorneys' fees, consultant fees or
expert fees and including, without limitation, removal or management of any
Hazardous Materials, including without limitation asbestos, brought into the
Premises or disturbed in breach of the requirements of this Paragraph 30,
regardless of whether such removal or managements is required by law) which are
brought or recoverable against, or suffered or incurred by Landlord as a result
of any release of Hazardous Materials or any breach of the requirements under
this Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,
assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall survive
any termination of this Lease.
(e) Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's expense,
unless such inspections or test reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord for the
reasonable cost of such inspection and tests. Landlord's receipt of or
satisfaction with any environmental assessment in no way waives any rights that
Landlord holds against Tenant. Tenant shall promptly notify Landlord of any
communication or report that Tenant makes to any governmental authority
regarding any possible violation of Environmental Requirements or release or
threat of release of any Hazardous Materials onto or from the Premises. Tenant
shall, within five (5) days of receipt thereof, provide Landlord with a copy of
any documents or correspondence received from any governmental agency or other
party relating to a possible violation of Environmental Requirements or claim or
liability associated with the release or threat of release of any Hazardous
Materials onto or from the Premises.
(f) In addition to all other rights and remedies available to
Landlord under this Lease or otherwise, Landlord may, in the event of a breach
of the requirements of this Paragraph 30 that is not cured within thirty (30)
days following notice of such breach by Landlord, require Tenant to provide
financial assurance (such as insurance, escrow of funds or third party
guarantee) in an amount and form satisfactory to Landlord. The requirements of
this Paragraph 30 are in addition to and not in lieu of any other provision in
the Lease.
31. RULES AND REGULATIONS. Tenant shall, at all times during the
Lease Term and any extension thereof, comply with all reasonable rules and
regulations at any time or from time to time established by Landlord covering
use of the Premises and the Project. The current rules and regulations are
attached hereto. In the event of any conflict between said rules and
regulations and other provisions of this Lease, the other terms and provisions
of this Lease shall control. Landlord shall not have any liability or
obligation for the breach of any rules or regulations by other tenants in the
Project. The current rules and regulations applicable to the Project are
attached hereto as Exhibit C.
11
32. SECURITY SERVICE. Tenant acknowledges and agrees that, while
Landlord may patrol the Project, Landlord is not providing any security services
with respect to the Premises and that Landlord shall not be liable to Tenant
for, and Tenant waives any claim against Landlord with respect to, any loss by
theft or any other damage suffered or incurred by Tenant in connection with any
unauthorized entry into the Premises or any other breach of security with
respect to the Premises.
33. FORCE MAJEURE. Landlord shall not be held responsible for
delays in the performance of its obligations hereunder when caused by strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord ("Force Majeure").
34. ENTIRE AGREEMENT. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties hereto.
35. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in that
event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby, It is also the intention of the parties to
this Lease that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added, as a part of this Lease, a
clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
36. BROKERS. Tenant represents and warrants that it has dealt with
no broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than the
broker, if any, set forth on the first page of this Lease, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction.
37. MISCELLANEOUS. (a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant" as used in this
instrument, there is more than one person, firm or corporation, each shall be
jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease
shall be in writing and shall be sent by registered or certified mail, return
receipt requested, or by a reputable national overnight courier service, postage
prepaid, of by hand delivery addressed to the parties at their addresses below
the signature of such party and with a copy to Landlord at The Prudential
Insurance Company of America, 0 Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000; Attention: Xxxxxx X. Xxxx and with a copy to the Tenant at the
Premises. Either party may by notice given aforesaid change its address for all
subsequent notices. Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Except as otherwise expressly provided in this Lease or as
otherwise required by law, Landlord retains the absolute right to withhold any
consent or approval.
(e) At Landlord's request from time to time Tenant shall furnish
Landlord with true and complete copies of its most recent annual audited
financial statements and quarterly financial statements and any other financial
information or summaries that Tenant typically provides to its lenders or
shareholders.
(f) Neither this Lease nor a memorandum of lease shall be filed
by or on behalf of Tenant in any public record. Landlord may prepare and file,
and upon request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
is the interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this Lease shall have
no binding force or effect, shall not constitute an option for the Leasing of
the Premises, nor confer any right to impose any obligations upon either party
until execution of this Lease by both parties.
(i) Word of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way define, limit or
otherwise describe the scope or intent of this Lease, or any provisions hereof,
or in any way affect the interpretation of this Lease.
(j) Any amount not paid by Tenant within 5 business days after its
due date in accordance with the terms of this Lease shall bear interest from
such due date until paid in full at the lesser of the highest rate permitted by
applicable law or 15% per year. It is expressly the intent of Landlord and
Tenant at all times to comply with applicable law governing the maximum rate or
amount of any interest payable on or in connection with this Lease. If
applicable law is ever judicially interpreted so as to render usurious any
interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's
12
express intent that all excess amounts theretofore collected by Landlord be
credited on the applicable obligation (or, if the obligation has been or would
thereby be paid in full, refunded to Tenant), and the provisions of this Lease
immediately shall be deemed reformed and the amounts thereafter collectible
hereunder reduced, without the necessity of the execution of any new document,
so as to comply with the applicable law, but so as to permit the recovery of
the fullest amount otherwise called for hereunder.
(k) Construction and interpretation of this Lease shall be
governed by the laws of the state in which the Project is located, excluding
any principles of conflicts of laws.
(l) Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(m) All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. In the event of any
conflict between such exhibits or addenda (other than the rules and regulations)
and the terms of this Lease, such exhibits or addenda shall control. In the
event of a conflict between the rules and regulations attached hereto and the
terms of this Lease, the terms of this Lease shall control.
(n) If either party shall prevail in any litigation instituted by
or against the other related to this Lease, the prevailing party, as determined
by the court, shall receive from the non-prevailing party all costs and
reasonable attorneys' fees (payable at standard hourly rates) incurred in such
litigation, including costs on appeal, as determined by the court. Tenant shall
pay to Landlord all costs and expenses, including reasonable attorneys' fees,
incurred by Landlord in enforcing this Lease.
38. LANDLORD'S LIEN/SECURITY INTEREST. Intentionally omitted.
39. LIMITATION OF LIABILITY OF TRUSTEES, SHAREHOLDERS, AND
OFFICERS OF LANDLORD. Any obligation or liability whatsoever of Landlord, which
may arise at any time under this Lease or any obligation or liability which may
be incurred by it pursuant to any other instrument, transaction, or undertaking
contemplated hereby shall not be personally binding upon, nor shall resort for
the enforcement thereof be had to the property of, its trustees, directors,
shareholders, officers, employees or agents, regardless of whether such
obligation or liability is in the nature of contract, tort, or otherwise.
40. RELOCATION. Intentionally omitted.
41. RESERVED RIGHTS. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to
Tenant for damage or injury to property, person or business and without
affecting an eviction or disturbance of Tenant's use or possession or giving
rise to any claim for setoff or abatement of rent or affecting any of Tenant's
obligations under this Lease: (1) upon thirty (30) days prior notice to change
the name or street address of the Building; (2) to install and maintain signs
on the exterior and interior of the Building; (3) to designate and approve
window coverings to present a uniform exterior appearance; (4) to make any
decorations, alterations, additions, improvements to the Building or Project,
or any part thereof (including, with prior notice, the Premises) which Landlord
shall desire, or deem necessary for the safety, protection, preservation or
improvement of the Building or Property, or as Landlord may be required to do
by law; (5) to have access to the Premises at reasonable hours to perform its
duties and obligations and to exercise its rights under this Lease; (6) to
retain at all times and to use in appropriate instances, pass keys to all locks
within and to the Premises; (7) to approve the weight, size, or location of
heavy equipment, or articles within the Premises; (8) to change the arrangement
and/or location of the public areas of the Property; (9) to regulate access to
telephone, electrical and other utility closets in the Building and to require
use of designated contractors for any work involving access to the same; (10)
if Tenant has vacated the Premises during the last six (6) months of the Lease
Term, to perform additions, alterations and improvements to the Premises in
connection with a reletting or anticipated reletting thereof without being
responsible or liable for the value or preservation of any then existing
improvements to the Premises; and (11) to grant to anyone the exclusive right
to conduct any business or undertaking in the Building provided Landlord's
exercise of its rights under this clause 11, shall not be deemed to prohibit
Tenant from the operation of its business in the Premises and shall not
constitute a constructive eviction.
SIGNATURE PAGE TO FOLLOW
13
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT: LANDLORD:
PODS, INC., a Florida corporation FIRST AMERICAN TRUST, FSB, AS TRUSTEE
UNDER TRUST AGREEMENT DATED
FEBRUARY 27, 2001 AND KNOWN AS TRUST
NO. 00-0000-00
By: /s/ R. Xxxx Xxxxxx
--------------------------------
Name: R. Xxxx Xxxxxx By: Prudential Investment Corporation,
------------------------------ a New Jersey corporation, its agent
Title: Chief Administrative Officer
-----------------------------
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
-----------------------------
Address: Address:
PODS, Inc. c/x Xxxxx & Xxxxx Management Services
0000 00xx Xx. X. 000 Xxxx 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx Attention: Xxxxx Xxxx
14
EXHIBIT A
FLOOR PLAN OF THE PREMISES
PREMISES
TOTAL = 39,351 s.f.
VACANT SPACE
TOTAL = 56,343 s.f.
FLOOR PLAN NORTH
1"=50'-0'
1
EXHIBIT B
WORK LETTER AGREEMENT
1. Landlord shall perform improvements to the Premises in accordance with
the space plans prepared by Capital Design, Ltd. (the "Space Plans") and the
construction drawings and related architectural and engineering drawings
prepared by Capital Design, Ltd., dated December 13, 2001 (such construction
drawings and related architectural and engineering drawings, together with the
Space Plans, the "Plans"). The improvements to be performed by Landlord in
accordance with the Plans are hereinafter referred to as the "Landlord Work."
It is agreed that construction of the Landlord Work is intended to be
"turn-key" and will be completed at Landlord's sole cost and expense (subject
to the terms of Paragraph 2 below) using Building standard methods, materials,
and finishes. Landlord shall enter into a direct contract for the Landlord Work
with a general contractor selected by Landlord. In addition, Landlord shall
have the right to select and/or approve of any subcontractors used in
connection with the Landlord Work. Landlord's supervision or performance of any
work for or on behalf of Tenant shall not be deemed a representation by
Landlord that such Plans or the revisions thereto comply with applicable
insurance requirements, building codes, ordinances, laws or regulations, or
that the improvements constructed in accordance with the Plans and any
revisions thereto will be adequate for Tenant's use, it being agreed that
Tenant shall be responsible for all elements of the design of Tenant's plans
(including, without limitation, functionality of design and the configuration
of the Premises).
2. If Tenant shall request any revisions to the Plans, Landlord shall
have such revisions prepared at Tenant's sole cost and expense and Tenant
shall reimburse Landlord for the cost of preparing any such revisions to the
Plans, plus any applicable state sales or use tax thereon, upon demand. Promptly
upon completion of the revisions, Landlord shall notify Tenant in writing of
the increased cost in the Landlord Work, if any, resulting from such revisions
to the Plans. Tenant, within 2 business days, shall notify Landlord in writing
whether it desires to proceed with such revisions. In the absence of such
written authorization, Landlord shall have the option to continue work on the
Premises disregarding the requested revision. Tenant shall be responsible for
any Delay in completion of the Premises resulting from any revision to the
Plans. If such revisions result in an increase in the cost of Landlord Work,
such increased costs, plus any applicable state sales or use tax thereon, shall
be payable by Tenant upon demand, and Landlord shall not commence work with
respect to such revision until Tenant's payment of such amount. Notwithstanding
anything herein to the contrary, all revisions to the Plans shall be subject to
the reasonable approval of Landlord.
3. This Exhibit shall not be deemed applicable to any additional space
added to the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises or any
additions to the Premises in the event of a renewal or extension of the original
Lease Term, whether by any options under the Lease or otherwise, unless
expressly so provided in the Lease or any amendment or supplement to the Lease.
4. Landlord's and Tenant's representatives for coordination of
construction and approval of change orders will be as follows, provided that
either party may change its representative upon written notice to the other:
LANDLORD'S REPRESENTATIVE:
NAME Xxxxx Xxxx
ADDRESS Xxxxx & Xxxxx Management Services
000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
PHONE (000) 000-0000
TENANT'S REPRESENTATIVE:
NAME Xxxx Xxxxxx
ADDRESS 0000 00xx Xx. X.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
PHONE (000) 000-0000
1
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalk, entries, and driveways of the Project shall not be
obstructed by Tenant, or its agents, or used by them for any purpose other than
ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other areas outside
of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the
offices, hall, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the making of
loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric connections
in the Premises, Landlord or its agent will direct the electrician as to where
and how the wires may be introduced; and, without such direction, no boring or
cutting of wires will be permitted. Any such installation or connection shall
be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or boiler,
or other mechanical apparatus in the Premises, except as specifically approved
in the Lease. The use of oil, gas or inflammable liquids for hearing, lighting
or any other purpose is expressly prohibited. Explosives or other articles
deemed extra hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is specifically prohibited
on or about the Project. Except for the overnight parking of operative
vehicles, no vehicle of any type shall be stored in the parking areas at any
time. In the event that a vehicle is disabled, it shall be removed within 48
hours. There shall be no "For Sale" or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated parking areas in
conformity with all signs and other markings. All parking will be open
parking, and no reserved parking, numbering or lettering of individual spaces
will be permitted except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and
other pests.
9. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs or who shall in any manner do any act in violation of the
Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in the water,
lawn sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the Premises.
12. Except as otherwise permitted under the Lease, Tenant shall not permit
storage outside the Premises, including without limitation, outside storage of
trucks and other vehicles, or dumping of waste or refuse or permit any harmful
materials to be placed in any drainage system or sanitary system in or about
the Premises.
13. All moveable trash receptacles provided by the trash disposal firm for
the Premises must be kept in the trash enclosure areas, if any, provided for
that purpose.
14. Except as otherwise permitted under the Lease, no auction, public or
private, will be permitted on the Premises or the Project.
15. No awnings shall be placed over the windows in the Premises except
with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking or for
any immoral or illegal purposes or for any purpose other than that specified in
the Lease. No gaming devices shall be operated in the Premises.
17. Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account the
capacity of the electrical wiring in the Project and the Premises and the needs
of other tenants, and shall not use more than such safe capacity. Landlord's
consent to the installation of electric equipment shall not relieve Tenant from
the obligation not to use more electricity than such safe capacity.
18. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary use of
the Premises and shall keep all such machinery free of vibration, noise and air
waves which may be transmitted beyond the Premises.
20. Tenant shall not introduce, disturb or release asbestos or PCB's onto
or from the Premises.
21. Tenant shall at all times conduct its operations in a good and
workmanlike manner, employing best management practices to minimize the threat
of any violation of environmental requirements.
1
EXHIBIT D
ADDITIONAL PROVISIONS
I. RENEWAL OPTION
A. Provided that no event of default or sublease has ever occurred under
any term or provision contained in this Lease and no condition exists which
with the passage of time or the giving of notice or both would constitute an
event of default pursuant to this Lease and provided that Tenant has
continuously occupied the Premises for the permitted use during the Lease Term,
Tenant (but not any assignee or sublessee) shall have the right and option (the
"Renewal Option") to renew this Lease, by written notice delivered to Landlord
no later than nine (9) months prior to the expiration of the initial Lease Term
for one (1) additional term (the "Renewal Term") of thirty-six (36) months
under the same terms, conditions and covenants contained in the Lease, except
that (a) no abatements or other concessions, if any, applicable to the initial
Lease Term shall apply to the Renewal Term; (b) the Base Rent shall be equal to
the market rate (taking into consideration tenant inducements) for comparable
space located in the Project and in other buildings comparable to the Building
in the vicinity of the Project as of the end of the initial Lease Term, (c)
Tenant shall have no option to renew this Lease beyond the expiration of the
Renewal Term; and (d) all leasehold improvements within the Premises shall be
provided in their then existing condition (on an "As Is" basis) at the time the
Renewal Term commences.
B. Failure by Tenant to notify Landlord in writing of Tenant's election
to exercise the Renewal Option herein granted within the time limits set forth
for such exercise shall constitute a waiver of such Renewal Option. In the
event Tenant elects to exercise the Renewal Option as set forth above, Landlord
shall, within thirty (30) days thereafter, notify Tenant in writing of the
proposed rental for the applicable Renewal Term (the "Proposed Renewal
Rental"). Tenant shall within thirty (30) days following delivery of the
Proposed Renewal Rental by Landlord notify Landlord in writing of the
acceptance or rejection of the Proposed Renewal Rental. If Tenant accepts
Landlord's proposal, then the Proposed Renewal Rental shall be the rental rate
in effect during the application Renewal Term.
C. Failure of Tenant to respond in writing during the aforementioned
thirty (30) day period shall be deemed an acceptance by Tenant of the Proposed
Renewal Rental. Should Tenant reject Landlord's Proposed Renewal Rental during
such thirty (30) day period, then Landlord and Tenant shall negotiate during
the thirty (30) day period commencing upon Tenant's rejection of Landlord's
Proposed Renewal Rental to determine the rental for the applicable Renewal
Term. In the event Landlord and Tenant are unable to agree to a rental for the
applicable Renewal Term during said thirty (30) day period, then the Renewal
Option shall terminate and be null and void and the Lease shall, pursuant to
its terms and provisions, terminate at the end of the original Lease Term.
D. Upon exercise of the Renewal Option by Tenant and subject to the
conditions set forth hereinabove, the Lease shall be extended for the period of
the Renewal Term without the necessity of the execution of any further
instrument or document, although if requested by either party, Landlord and
Tenant shall enter into a written agreement modifying and supplementing the
Lease in accordance with the provisions hereof. Any termination of the Lease
during the initial Lease Term shall terminate all subsequent renewal rights
hereunder. The renewal rights of Tenant hereunder shall not be severable from
the Lease, nor may such rights be assigned or otherwise conveyed in connection
with any permitted assignment of the Lease. Landlord's consent to any
assignment of the Lease shall not be construed as allowing an assignment of
such rights to any assignee.
II. RIGHT OF FIRST OFFER
A. Tenant shall have the one time right of first offer ("Right of First
Offer") with respect to the 56,343 square feet of space contiguous to the
Premises (the "Offering Space"), which Right of First Offer shall be exercised
as follows: at any time after Landlord has determined that the initial tenant
which leases the Offering Space will not extend or renew the term of its lease
for the Offering Space (but prior to leasing such Offering Space to a party
other than the initial tenant), Landlord shall advise Tenant (the "Advice") of
the terms under which Landlord is prepared to lease the Offering Space to
Tenant, which terms shall reflect the Prevailing Market (hereinafter defined)
rate for such Offering Space as reasonably determined by Landlord and the term
for which Landlord will lease the Offering Space to Tenant. Tenant may lease
such Offering Space in its entirety only, under such terms, by delivering
written notice of exercise to Landlord ("Notice of Exercise") within five (5)
days after the date of the Advice, except that Tenant shall have no such Right
of First Offer and Landlord need not provide Tenant with an Advice, if:
1. Tenant is in default under the Lease at the time Landlord
would otherwise deliver the Advice; or
2. the Premises, or any portion thereof, is sublet at the time
Landlord would otherwise deliver the Advice; or
3. the Lease has been assigned prior to the date Landlord would
otherwise deliver the Advice; or
4. Tenant is not occupying the Premises on the date Landlord
would otherwise deliver the Advice.
B. The term for the Offering Space shall commence upon the commencement
date stated in the Advice and thereupon such Offering Space shall be considered
a part of the Premises, provided that all of the terms stated in the Advice
shall govern Tenant's leasing of the Offering Space and only to the extent that
they do not conflict with the Advice, the terms and conditions of this Lease
shall apply to the Offering Space.
1. Tenant shall pay Monthly Base Rent for the Offering Space in
accordance with the terms and conditions of the Advice, which
terms and conditions shall reflect the Prevailing Market rate
for
1
the Offering Space as determined in Landlord's reasonable
judgment.
2. The Offering Space shall be accepted by Tenant in its
condition and as-built configuration existing on the earlier
of the date Tenant takes possession of the Offering Space or
as of the date the term for such Offering Space commences.
C. The rights of Tenant hereunder with respect to the Offering Space
shall terminate on the earlier to occur of: (i) the expiration of the initial
Lease Term; (ii) Tenant's failure to exercise its Right of First Offer within
the five (5) day period provided in paragraph A above, and (iii) the date
Landlord would have provided Tenant an Advice if Tenant had not been in
violation of one or more of the conditions set forth in Paragraph A above.
D. If Tenant exercises its Right of First Offer, Landlord and Tenant
shall execute an amendment to this Lease adding the Offering Space to the
Premises on the terms set forth in the Advice and reflecting the changes in the
Monthly Base Rent, square footage of the Premises, Tenant's Proportionate Share
and other appropriate terms.
E. For purposes hereof, Prevailing Market rate shall mean the annual
rental rate per square foot for space comparable to the Offering Space in the
Building and the Project and other buildings comparable to the Building in the
vicinity of the Project under leases and renewal and expansion amendments being
entered into at or about the time that Prevailing Market is being determined
giving appropriate consideration to tenant concessions, brokerage commissions,
and tenant improvement allowances.
2
EXHIBIT E
TRUCK COURT STAGING AREA
[MAP]
1
