EXHIBIT 10.101
INDENTURE OF LEASE AGREEMENT FOR
XXXXXX MICRO DISTRIBUTION FACILITY
INDENTURE OF LEASE
BY AND BETWEEN
XXXXX OPERATING PARTNERSHIP, L.P.,
LANDLORD
AND
XXXXXX MICRO L.P.,
TENANT
DATED: September 7/th/, 2001
PREMISES: 0000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx
TABLE OF CONTENTS
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PAGE
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ARTICLE I LEASE PROVISIONS 1
ARTICLE II DEFINITIONS 2
ARTICLE III PREMISES 3
ARTICLE IV TERM 4
ARTICLE V RENT 4
ARTICLE VI IMPOSITIONS 6
ARTICLE VII USE 7
ARTICLE VIII CONDITION OF PREMISES; ALTERATIONS AND REPAIRS 8
ARTICLE IX INSURANCE 11
ARTICLE X FIRE AND OTHER CASUALTY 12
ARTICLE XI OBLIGATIONS OF TENANT 13
ARTICLE XII DEFAULT BY TENANT; REMEDIES 15
ARTICLE XIII CONDEMNATION 19
ARTICLE XIV ACCESS AND RIGHT TO EXHIBIT 20
ARTICLE XV RIGHT OF FIRST OFFER 20
ARTICLE XVI ASSIGNMENT OR SUBLEASE 21
ARTICLE XVII WAIVER OF REDEMPTION 23
ARTICLE XVIII MORTGAGE PRIORITY 23
ARTICLE XIX LANDLORD CONSENT 23
ARTICLE XX CERTIFICATION 23
ARTICLE XXI WAIVER OF TRIAL BY JURY 24
Table Of Contents
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(Continued)
ARTICLE XXII OPTION TO EXTEND 24
ARTICLE XXIII QUIET ENJOYMENT 25
ARTICLE XXIV LANDLORD AND PERSONAL LIABILITY 26
ARTICLE XXV NOTICES 26
ARTICLE XXVI COVENANTS, EFFECT OF WAIVER 26
ARTICLE XXVII HOLDING OVER 27
ARTICLE XXVIII ATTORNMENT 27
ARTICLE XXIX REAL ESTATE BROKER 27
ARTICLE XXX ENVIRONMENTAL LAWS 28
ARTICLE XXXI VALIDITY OF LEASE 31
ARTICLE XXXII REFERENCE 31
ARTICLE XXXIII ENTIRE AGREEMENT 32
ARTICLE XXXIV MERGER OF TITLE 32
ARTICLE XXXV ASSIGNMENT BY LANDLORD 32
ARTICLE XXXVI GROUND LEASE AND BOND DOCUMENTS 32
ARTICLE XXXVII MISCELLANEOUS 33
EXHBITS:
EXHIBIT A - FORM OF GUARANTY
EXHIBIT B - LEGAL DESCRIPTION
EXHIBIT C - ENVIRONMENTAL REPORTS AND MATERIALS STORED AT PREMISES
THIS INDENTURE OF LEASE (this "Lease") made as of this 7/th/day of
September, 2001, by and between XXXXX OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership (hereinafter referred to as the "Landlord"), with offices
located at 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 and
XXXXXX MICRO L.P. a Tennessee limited partnership (hereinafter referred to as
the "Tenant"), with offices located at c/o Ingram Micro Inc., 0000 Xxxx Xx.
Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000.
W I T N E S S E T H:
- - - - - - - - - -
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
ARTICLE I
Lease Provisions
l. Address for 0000 Xxxxx Xxxxx
the Premises Millington, Tennessee
2. (a) Term: The Initial Term of this Lease, and any Option
Term.
(b) Commencement Date: September ____, 2001 (insert date of acquisition
of Premises by Landlord)
(c) Expiration Date: The last day of the Initial term or any Option
Term, unless sooner terminated pursuant to this
Lease.
(d) Initial Term: Ten (10) years beginning on the Commencement Date
and ending on the Expiration Date
(e) Option Term: Two (2) successive options to extend for ten (10)
years each.
3. Guarantor: Xxxxxx Micro Inc., a Delaware corporation under
that Guaranty of Lease dated the date hereof and
substantially in the form of Exhibit "A" attached
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hereto.
4. Address for Notice:
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Vice President-Property Management
(b) Tenant: c/o Ingram Micro Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Corporate Real Estate
ARTICLE II
Definitions
"Additional Rent" is defined in Section 5.2.
"Alterations" is defined in Section 8.4.
"Bond Documents" means the Bond, Deed of Trust, Ground Lease and all other
instruments, documents and agreements executed and delivered in connection with
the issuance of the Bond, all as more fully described in that certain Agreement
for the Purchase and Sale of Property between the parties hereto, dated as of
the date hereof.
"Buildings" means the buildings, equipment and improvements now or
hereinafter erected on the Land.
"Business day" is every day which most commercial banks based in California
are open for the ordinary conduct of business.
"Claims" is defined in Section 11.3.
"Commencement Date" is set forth in Article I.
"Default Rate" means five percent (5%) over the prime reference rate
announced from time to time by Bank of America, Atlanta, Georgia as such prime
reference rate may be adjusted and announced from time to time, or if
unavailable, the parties shall use the prime reference rate of any Georgia
regional bank selected by Landlord, but in no event greater than the maximum
legal rate.
"Environmental Laws" is defined in Section 31.10.
"Event of Default" is defined in Section 12.2.
"Expiration Date" is defined in Article I.
"Fixed Rent" is defined in party Section 5.1.
"Ground Lease" means, in respect to the Land and the Buildings, the Bond
Real Property Lease, dated as of December 20, 1995, by and between Landlord, as
ground lessee, and the Ground Lessor.
"Ground Lessor" means The Industrial Development Board of the City of
Millington, Tennessee.
"Hazardous Substances" is defined in Section 31.11.
"Impositions" is defined in Section 6.1.
"Indemnified Parties" is defined in Section 11.3.
"Land" means that certain real property described on Exhibit "B" attached
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hereto and incorporated herein by this reference.
"Landlord" is defined in the introductory paragraph to this Lease.
"Lease" means this lease made between Landlord, as landlord, and Tenant, as
tenant.
"Mortgage" is defined in Section 6.2.
"Mortgagee" is defined in Section 6.2.
"Non-Disturbance Agreement" is defined in Article XVIII.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental authority or any other entity.
"Premises" means the Land and the Buildings.
"Profit" is defined in Article XVI.
"Rent" means the Fixed Rent and Additional Rent.
"Requirements of Law" means all Federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting the Property, the Improvements or the
demolition, construction, use or alteration thereof, whether now or hereafter
enacted and in force, including any that require repairs, modifications or
alterations in or to the property or in any way limit the use and enjoyment
thereof (including all building, zoning and fire codes and the Americans with
Disabilities Act of 1990, 42 U.S.C. (S) 1201 et.seq. and any other similar
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Federal, state or local laws or ordinances and the regulations promulgated
thereunder) and any that may relate to environmental requirements (including all
Environmental Laws), and all permits, certificates of occupancy, licenses,
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments which are either of
record or known to the Lessee affecting the Premises.
"Tenant" is defined in the introductory paragraph to this Lease.
"Term" is defined in Article I.
"Threshold Amount" is defined in Section 8.4.
"Work" is defined in Section 8.5.
ARTICLE III
Premises
Landlord hereby leases to Tenant and Tenant hereby takes from Landlord, all
right, title and interest of Landlord in and to the Buildings located on the
Land more particularly described
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on Exhibit "B" attached hereto and made a part hereof, together with certain
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parking facilities, driveways and any other public or common facilities
contained in or about the Premises, subject, however, to all of the terms,
covenants, provisions and conditions herein set forth, and to all present liens,
encumbrances, conditions, rights, easements, restrictions, rights-of-way,
covenants, other matters of record, and zoning and laws, ordinances, regulations
and codes affecting or governing the Buildings and other improvements located on
the Land or which may hereafter affect or govern the Premises, and such matters
as may be disclosed by inspection or survey.
ARTICLE IV
Term
Section 4.1 Initial Term. The Initial Term of this Lease shall be for ten
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(10) years, commencing as of the Commencement Date and terminating on the
Termination Date.
Section 4.2 Lease Year. For purposes of this Lease, a "Lease Year" shall be
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deemed to be each consecutive period of twelve (12) full calendar months during
the Term hereof, except that the first Lease Year shall, in addition, include
the fractional portion of the month, if any, immediately following the
Commencement Date, and that the last Lease Year shall run only from the day
following the termination of the previous Lease Year to the termination date of
the Lease.
Section 4.3 Title. The Premises is leased to Tenant without any
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representation or warranty of title, condition of the improvements or permitted
uses, express or implied, by the Landlord and subject to the rights of parties
in possession, the existing state of title (including, without limitation, the
permitted exceptions), the terms of the Ground Lease and all applicable
Requirements of Law. Tenant shall in no event have any recourse against
Landlord for any defect in or exception to title to the Premises. Tenant
expressly waives and releases Landlord from any common law or statutory covenant
of quiet enjoyment.
ARTICLE V
Rent
Section 5.1 Fixed Rent. Starting on the Commencement Date and continuing
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for the Initial Term of this Lease, Tenant shall pay as Fixed Rent for the
Premises as follows:
Fixed Rent Fixed Rent
Year Per Year Per Month
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1-5 $2,035,275.00 $169,606.25
6-10 $2,340,566.00 $195,047.17
All of the payments of Fixed Rent required hereunder shall be made without
prior notice of demand therefore and without any deduction, abatement or set off
for any reason whatsoever, except as set forth in this Lease.
Section 5.2 Additional Rent. Throughout the Initial Term, and any Option
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Term, Tenant shall also pay and discharge as additional rent (the "Additional
Rent'') all other amounts, liabilities and obligations of whatsoever nature
relating to the Premises (including all Impositions which Tenant shall pay
directly in accordance with Section 6.1) arising under any easements,
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restrictions, or other similar agreements affecting the Premises, insurance
maintained by Landlord (including business interruption insurance), and all
interest and penalties that may accrue thereon in the event of Tenant's failure
to pay such amounts when due, and all damages, costs and expenses which Landlord
may incur by reason of any default of Tenant or failure on Tenant's part to
comply with the terms of this Lease, all of which Tenant hereby agrees to pay
upon demand or as is otherwise provided herein. Upon any failure by Tenant to
pay any of the Additional Rent, Landlord shall have all legal, equitable and
contractual rights, powers and remedies provided either in this Lease or by
statute or otherwise in the case of nonpayment of the Fixed Rent, subject to
Landlord's obligation to give notice and opportunity to cure as provided in
Article XII. The term Additional Rent shall be deemed rent for all purposes
hereunder other than with respect to Tenant's internal accounting procedures.
Section 5.3 Payment Date. All Fixed Rent payable hereunder shall be
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payable when due in monthly installments on the first day of each calendar
month, or, if the first day is not a Business day, then on the first Business
day of the month paid by bank or company check in United States currency, which
shall be legal tender for all debts, public and private, payable to Landlord and
sent to Landlord's address set forth in Article I, or to such other person or
persons or at such other place as may be designated by notice from Landlord to
Tenant, from time to time. Notwithstanding the foregoing, Impositions shall be
payable to the parties to whom they are due, except as otherwise provided
herein.
Section 5.4 Net Lease. This Lease shall be deemed and construed to be a
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"Net, Net, Net Lease", and Tenant shall pay to Landlord, absolutely net
throughout the Term, the Rent, free of any charges, taxes, assessments,
impositions or deductions of any kind and without abatement, deduction or set-
off whatsoever. Under no circumstances or conditions, whether now existing or
hereafter arising, or whether beyond the present contemplation of the parties,
shall Landlord be expected or required to make any payment of any kind
whatsoever or be under any other obligation or liability hereunder, except as
herein otherwise expressly set forth. Tenant shall pay all costs, expenses and
charges of every kind and nature relating to the Premises, except debt service
on any Mortgage or any other indebtedness of Landlord, which may arise or become
due or payable prior to, during or after (but attributable to a period falling
prior to or within) the Term. Except as specifically set forth herein, the
obligations of Tenant hereunder shall not be affected by reason of any damage to
or destruction of the Premises or any part thereof, any taking of the Premises
or any part thereof or interest therein by condemnation or otherwise, any
prohibition, limitation, restriction or prevention of Tenant's use, occupancy or
enjoyment of the Premises or any part thereof, or any interference with such
use, occupancy or enjoyment by any person or for any reason, any matter
affecting title to the Premises, any eviction by paramount title or otherwise,
the impossibility, impracticability or illegality of performance by Landlord,
Tenant or both, any action of any governmental authority, Tenant's acquisition
of ownership of all or part of the Premises (unless this Lease shall be
terminated by a writing signed by Landlord, Tenant and any Mortgagee having an
interest in the Premises), any breach of warranty or misrepresentation, or any
other cause whether similar or dissimilar to the foregoing and whether or not
Tenant shall have notice or knowledge thereof and whether or not such cause
shall now be foreseeable. The parties intend that the obligations of Tenant
under this Lease shall be separate and independent covenants and agreements and
shall continue unaffected unless such obligations have been modified terminated
pursuant to an express provision of this Lease or by mutual agreement of
Landlord and Tenant.
Section 5.5 Late Fee. In the event Tenant fails to pay any Rent on or
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before the tenth (10th) day after it is due, Landlord shall be entitled to
charge as Additional Rent a service fee
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equal to five (5%) percent of such late payment of Rent plus interest at the
Default Rate. The foregoing shall be in addition to any other right Landlord
shall have by this Lease or by law in the event Tenant fails to pay its Rent in
accordance with this Lease. The failure by Landlord to insist upon the strict
performance by Tenant of Tenant's obligations to pay late charges shall not
constitute a waiver by Landlord of its rights to enforce the provisions of this
section in any instance thereafter occurring, nor shall acceptance of late
charges be deemed to extend the time of payment of Rent.
ARTICLE VI
Impositions
Section 6.1. Impositions. Tenant shall pay and discharge as and when due,
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all taxes, assessments, water rents, sewer rents and charges, duties,
impositions, license and permit fees, charges for public utilities of any kind,
payments and other charges of every kind and nature whatsoever, ordinary or
extraordinary, foreseen or unforeseen, general or special, in said categories,
together with any interest or penalties imposed upon the late payment thereof,
which, pursuant to past, present or future law, during, prior to or after (but
attributable to a period falling prior to or within) the Term, shall have been
or shall be levied, charged, assessed, imposed upon or grow or become due and
payable out of or for or have become a lien on the Premises or any part thereof,
any improvements or personal property in or on the Premises, this Lease, the
Ground Lease, the Rent payable by Tenant or on account of any use of the
Premises and such franchises as may be appurtenant to the use and occupation of
the Premises (all of the foregoing being hereinafter referred to as
"Impositions"). Tenant, upon request from Landlord, shall submit to Landlord the
proper and sufficient receipts or other evidence of payment and discharge of the
same. If any Impositions are not paid when due, Landlord shall have the right
but shall not be obligated to pay the same following ten (10) days, written
notice to Tenant, provided Tenant does not contest the same as herein provided.
If Landlord shall make such payment, Landlord shall thereupon be entitled to
repayment by Tenant on demand as Additional Rent hereunder.
Section 6.2. Right to Contest. Tenant shall have the right to protest and
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contest any Impositions imposed against the Premises or any part thereof and be
entitled to receive any credit or refund relating to the Term, provided (i) the
same is done at Tenant's sole cost and expense, (ii) nonpayment will not subject
the Premises or any part thereof to sale or other liability by reason of such
nonpayment, (iii) such contest shall not subject Landlord or the holder (the
"Mortgagee") of any mortgage or deed of trust (a "Mortgage") encumbering all or
any part of the Premises to the risk of any criminal or civil liability, (iv) if
such Imposition must be paid pursuant to any applicable statute, ordinance,
regulation or rule as a condition to such protest and contest, Tenant shall
timely pay such Imposition, and (v) Tenant shall provide copies of all notices
and correspondence regarding Impositions and the contest thereof to Landlord. If
such payment is not required by any applicable statute, ordinance, regulation or
rule, Tenant shall provide such security as may reasonably be required by
Landlord to ensure payment of such contested Imposition. Landlord agrees to
execute and deliver to Tenant any and all documents reasonably required for such
purpose and to cooperate with Tenant in every reasonable respect in such
contest, but without any out-of-pocket cost or expense to Landlord. Landlord
shall also have the right to protest and contest any Impositions.
Section 6.3 Payments in Installments. To the extent permitted by law,
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Tenant shall have the right to apply for the conversion of any Impositions to
make the same payable in annual installments over a period of years, and upon
such conversion Tenant shall pay and discharge said annual installments as they
shall become due and payable. Tenant shall pay all such deferred
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installments prior to the expiration or sooner termination of the Term,
notwithstanding that such installments shall not then be due and payable;
provided, however, that any Impositions (other than one converted by Tenant so
as to be payable in annual installments as aforesaid) relating to a fiscal
period of the taxing authority, a part of which is included in a period of time
after the Expiration Date, shall (whether or not such Impositions shall be
assessed, levied, confirmed, imposed or become payable, during the Term) be
adjusted between Landlord and Tenant as of the Expiration Date, so that Landlord
shall pay that portion of such Impositions which relate to that part of such
fiscal period included in the period of time after the Expiration Date, and
Tenant shall pay the remainder thereof.
Section 6.4. Taxes. If at any time during the Term, a tax or excise on
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Rents or other tax, however described, is levied or assessed with respect to the
Rent or any part thereof (as opposed to any charges in the nature of those
described in Section 6.5 below) or against Landlord as a substitute in whole or
in part for any Impositions theretofore payable by Tenant, Tenant shall pay and
discharge such tax or excise on Rents or other tax before it becomes delinquent,
and the same shall be deemed to be an Imposition levied against the Premises.
Section 6.5. Excluded Taxes. Except as set forth in Section 6.4 above,
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Tenant shall not be obligated to pay any franchise, excise, corporate, estate,
inheritance, succession, capital, levy or transfer tax of Landlord or any
income, profits or revenue tax upon the income of Landlord.
Section 6.6 PILOT Agreement. Notwithstanding anything to the contrary
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contained herein, the Premises are currently under a Payment in Lieu of Tax
Agreement, dated as of December 20, 1995 ("PILOT Agreement"), by and between
Ground Lessor and Tenant, wherein Ground Lessor has granted financial incentives
to Tenant, i.e., the Premises and the Equipment (as defined in the Ground Lease)
are exempt from all taxation through the calendar year 2005, by or on behalf of
the City of Millington and Shelby County for so long as title to the Premises is
held by the Ground Lessor. Landlord hereby acknowledges the existence of said
PILOT Agreement and agrees that, so long as Tenant is not in default under this
Lease, it will not take any actions that will cause the PILOT Agreement and the
Bond Documents to terminate or expire prior to the end of 2005. In the event
the PILOT Agreement is not honored due to reasons beyond the control of Landlord
or the conduct of Landlord, Tenant agrees to pay any taxes which may be due and
any tax which may be assessed against the Premises or on the value of the
leasehold interest, including any such taxes which may be applicable to a period
prior to the commencement of the Term hereof.
ARTICLE VII
Use
The Premises shall be used by Tenant for general office/distribution
warehouse purposes in compliance with the Ground Lease, and any covenants,
conditions and restrictions of record and in material compliance with any
Requirements of Law; and provided that such uses do not increase the liability,
directly or indirectly, of Landlord or adversely affect the value, utility or
remaining useful life of the Premises in any material respect. At all times
during the Term, the Premises shall be continuously used by Tenant or a
permitted assignee or sublessee in the ordinary course of its business. Tenant
shall pay, or cause to be paid, all charges and costs required in connection
with the use of the Premises as contemplated by this Lease. Tenant shall not
commit or permit any waste of the Premises or any part thereof.
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ARTICLE VIII
Condition Of Premises, Alterations And Repairs
Section 8.1. "As Is" Condition. The parties acknowledge that Landlord
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purchased the leasehold interest to the Premises directly from Tenant. In
connection with such purchase, Tenant and Landlord have entered into this Lease
to enable Tenant to retain possession and use of the Premises subject to the
terms and conditions hereof. In connection with Tenant's prior ownership and
prior and continuing possession of the Premises, Tenant has examined the
Premises, is familiar with the physical condition, expenses, operation and
maintenance, zoning, status of title and use that may be made of the Premises
and every other matter or thing affecting or related to the Premises, and is
leasing the same in its "As Is" condition. Landlord has not made and does not
make any representations or warranties whatsoever with respect to the Premises
or otherwise with respect to this Lease. Tenant assumes all risks resulting from
any defects (patent or latent) in the Premises or from any failure of the same
to comply with any governmental law or regulation applicable to the Premises or
the uses or purposes for which the same may be occupied.
Section 8.2. Maintenance and Repair. At Tenant's sole cost and expense,
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Tenant shall keep the Premises, including, without limitation, the adjoining
sidewalks and curbs, if any, clean and in first class condition and repair, and
Tenant shall make all repairs and replacements, structural and non-structural,
ordinary and extraordinary, foreseen and unforeseen, and shall perform all
maintenance, necessary to maintain the Premises, including, without limitation,
the roof, generators and all building systems, and any parking, sidewalks and
curbs in good condition and repair, reasonable wear and tear excepted. When used
in this Section 8.2, the term "repairs" shall include any necessary additions,
alterations, improvements, replacements, renewals and substitutions. All repairs
made by Tenant shall be equivalent in quality and class to the original work and
shall be made in compliance with all Requirements of Law. Landlord shall not be
required to furnish any services or facilities or to make any repairs or
alterations to the Premises, and Tenant hereby assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance
and management of the Premises and all costs and expenses incidental thereto.
Section 8.3. No Cost to Landlord. Landlord shall not be responsible for
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the cost of any alterations of or repairs to the Premises of any nature
whatsoever, structural or otherwise, whether or not now in the contemplation of
the parties.
Section 8.4. Alterations. Tenant shall have the right at any time and from
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time to time during the Term to make, at its sole cost and expense, changes,
alterations, additions or improvements (collectively, "Alterations") in or to
the Premises, subject, however, in each case to all of the following:
(a) No Alteration shall be undertaken except after twenty (20) days prior
notice to Landlord, provided that, notwithstanding any term or provision of this
Lease to the contrary, no such notice shall be required with respect to (i) any
nonstructural Alteration involving an estimated cost of less than the Threshold
Amount (defined below), or (ii) any Alteration made by Tenant on an emergency
basis, in which case Tenant shall notify Landlord of such emergency Alteration
soon as practicable.
(b) No structural Alteration and no other Alteration involving an
estimated cost of more than the Threshold Amount shall be made without the prior
written consent of Landlord, which
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consent shall not be unreasonably withheld, conditioned or delayed.
(c) Any Alteration shall, when completed, be of such a character as not to
materially reduce the value of the Premises below its value immediately before
such Alteration.
(d) No Alteration shall be made by Tenant if the same would materially
reduce the cubic content of the Buildings or weaken, temporarily or permanently,
the structure of the Buildings or any part thereof, or enable Tenant to conduct
activity inconsistent with the limitations upon its use as stated in Article
VII.
(e) The provisions and conditions of Section 8.5 shall apply to any work
performed by Tenant under this Article.
(f) For purposes of Sections 8.4 and 8.5, the "Threshold Amount" shall
mean an amount equal to $100,000. For purposes of determining Threshold Amount,
an Alteration shall include any series of or related improvements whose cost, in
the aggregate, equals or exceeds $100,000.
(g) For purposes of Sections 8.4 and 8.5, notice of whether Landlord'
consent has been given or withheld shall be delivered to Tenant within ten (10)
Business days following receipt of request (as such time period shall be
extended for a reasonable period in the event Landlord determines, in its
reasonable discretion, that it is prudent to engage a third party to review the
plans and specifications, if any, pertaining to such contemplated Alteration,
provided that Tenant is notified of such determination by Landlord within such
ten (l0) Business day period) and, if no such notice is given to Tenant within
such period of time, Landlord shall be deemed to have accepted and approved the
items submitted by Tenant.
Section 8.5. Work at Premises. Tenant agrees that all Alterations, repairs
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and other work which Tenant shall be required or permitted to do under the
provisions of this Lease (each hereinafter called the "Work") shall be (i)
performed to substantially the same standard of quality as found in the original
improvements, workmanlike manner, and in accordance with all Requirements, as
well as any plans and specifications therefor which shall have been approved by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed (ii) commenced and completed promptly, and (iii) done in all cases upon
and subject to the terms of any Non-Disturbance Agreement and, to the extent not
inconsistent with any term thereof, all of the following terms and conditions:
(a) If the Work shall involve (i) any structural repair, Alterations or
other Work, or (ii) more than the Threshold Amount, then the Work shall not be
commenced until detailed plans and specifications (including layout,
architectural, mechanical and structural drawings), prepared by a licensed
architect reasonably satisfactory to Landlord shall have been submitted to and
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed.
(b) All Work shall be commenced only after all required municipal and
other governmental permits, authorizations and approvals shall have been
obtained by Tenant, at its own cost and expense, and the originals thereof
delivered to Landlord. Landlord will, on Tenant's written request, execute any
documents necessary to be signed by Landlord to obtain any such permits,
authorizations and approvals, provided that Tenant shall discharge any expense
or liability of Landlord in connection therewith.
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(c) The cost of all Work shall be paid promptly, so that the Premises and
Tenant's leasehold estate therein shall at all times be free from (i) liens for
labor or materials supplied or to have been supplied to the Premises or Tenant,
and (ii) chattel Mortgage, conditional sales contracts, title retention
agreements, security interests and agreements, and financing agreements and
statements.
(d) At all times when any Work is in progress, Tenant shall maintain or
cause to be maintained with such companies and for such periods as Landlord may
require (i) Workmen's Compensation Insurance covering all persons employed in
connection with the Work in an amount at least equal to the minimum amount of
such insurance required by law; and (ii) for the mutual protection of Landlord,
Tenant and any Mortgagee, (1) Builder's Risk Insurance, completed value form,
covering all physical loss, in an amount reasonable satisfactory to Landlord,
and (2) Commercial General Liability Insurance against all hazards, with limits
for bodily injury or death to any one person, for bodily injury or death to any
number of persons in respect of any one accident or occurrence, and for property
damage in respect of one accident or occurrence in such amounts as Landlord may
reasonably require. Such Commercial General Liability Insurance may be satisfied
by the insurance required under Article IX or may be effected by an endorsement,
if obtainable, upon the insurance policy referred to in said Section. The
provisions and conditions of Article IX hereof shall apply to any insurance
which Tenant shall be required to maintain or cause to be maintained under this
subsection.
(e) Upon completion of any Work, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Work required by any governmental or
quasi-governmental authority and shall furnish Landlord with copies thereof,
together with "as-built" plans and specifications for such Work (if the cost of
such Work exceeds the Threshold Amount).
(f) The conditions of Section 8.4 shall have been complied with, to the
extent applicable to the Work.
Section 8.7. Property of Landlord. All Alterations, repairs, and
--------------------
restoration completed or installed in or upon the Premises at any time during
the Term (excluding Tenant's trade fixtures, equipment, inventory, furnishings
and other personal property) shall become the property of Landlord and shall
remain upon and be surrendered with the Premises provided that, if prior to the
commencement of any Work, Landlord gives written notice to Tenant stating that
Landlord will require such Alterations to be removed from the Premises prior to
the Expiration Date or earlier termination of this Lease, the same shall be
removed from the Premises by Tenant by the Expiration Date (or if this Lease is
terminated earlier, then within sixty (60) days after the effective date of such
termination) at Tenant's expense. All property permitted or required to be
removed by Tenant at the end of the Term remaining in the Premises after
Tenant's removal shall be deemed abandoned and may, at the election of Landlord,
either be retained as Landlord's property or may be removed from the Premises by
Landlord at Tenant's expense. Tenant shall be responsible for, and shall
reimburse Landlord immediately after written demand therefor, any damage to the
Premises caused by the removal or demolition of Tenant's fixtures, structures or
other improvements which Tenant is required to remove pursuant to this Section
8.7 or which Tenant elects under the provisions of this Lease to remove. The
provisions of this Section 8.7 shall survive the expiration or earlier
termination of the Term.
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ARTICLE IX
Insurance
(a) Tenant shall obtain, upon execution of this Lease, and keep in force
at all times during the Term of this Lease, in the name of, and for the benefit
of, Landlord, any Mortgagee of the Land, Buildings and Premises, and Tenant, as
their interests may appear, a comprehensive public liability insurance policy,
insuring against claim or liability for personal injury to or death of any
persons and/or damage to property occurring in, on or about the Premises. Such
policy shall provide for a combined limit of Five Million Dollars ($5,000,000)
per occurrence for public liability or such higher amount as may be reasonably
required by Landlord from time to time. Tenant also agrees to and shall save,
hold and keep harmless and indemnify Landlord, and any Mortgagee of the Land,
Buildings and Premises, from and for all payments, expenses, costs, attorney
fees and from and for all claims and liability for losses or damage to property
or injuries to persons occasioned wholly or in part by or resulting from any
acts or omissions by Tenant or Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors, or for any cause or reason
whatsoever arising out of or by reason of the occupancy by Tenant and the
conduct of Tenant's business, except to the extent Landlord or such other party
is reimbursed by insurance. Tenant agrees that all insurance procured by Tenant
shall be primary and non-contributing.
(b) Tenant shall obtain, upon execution of this Lease, and keep in force
at all times during the Term of this Lease and any extensions thereof, Worker's
Compensation Insurance as required by law.
(c) Tenant agrees to deliver to Landlord, within ten (10) days after the
execution and delivery of this Lease, and thereafter at least thirty (30) days
prior to the expiration of any such policy, a certificate of insurance on all
policies procured by Tenant in compliance with its obligations under this
Article IX. Tenant also agrees to cooperate with Landlord and any Mortgagee of
the Land, Buildings and Premises to provide all reasonable information
pertaining to such policies. All of said policies of insurance, if any, shall
name Landlord and any Mortgagee of the Land, Buildings and Premises, as insured,
as their respective interests may appear. All such policies shall contain an
endorsement stating that such insurance may not be cancelled or amended except
upon not less than thirty (30) days' prior written notice to Landlord, or any
managing agent of the Land, Buildings and Premises designated by Landlord and,
if applicable, any Mortgagee of the Land, Buildings and Premises. Tenant shall,
at Tenant's cost and expense, comply with all requests of the Tenant's insurance
carrier(s) with respect to Tenant's obligations under this Article IX.
(d) Each of the parties shall use its best efforts to procure an
appropriate clause in, or endorsement on, any fire or extended coverage or "all
risk" insurance, or other insurance, required by this Lease, pursuant to which
the insurance companies waive subrogation or consent to a waiver of right of
recovery and, having obtained such clauses or endorsements of waiver of
subrogation or consent to a waiver of right of recovery, will not make any claim
against or seek to recover from the other for any loss or damage to persons, its
property or the property of others resulting from fire or other hazards covered
by such fire and extended coverage or "all risk" insurance, provided, however,
that the release, discharge, exoneration and covenant not to xxx herein
contained shall be limited by, and be coextensive with, the terms and provisions
of the waiver of subrogation clause or endorsements or clauses or endorsements
consenting to a waiver or right of recovery.
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(e) Each party hereby waives and releases any and all right of recovery
which it might otherwise have against the other party, and all liability and
expense for all injury, loss or damage to its business, contents, furniture,
furnishings, fixtures and other property , unless such injury, loss or damage
resulted from the intentional acts of the other party in which case the party
may exert any rights that it may have against the other party for said loss to
the extent not covered by proceeds of any insurance policies carried by the
party.
(f) All of the certificates shall be obtained by Tenant and delivered to
Landlord on or prior to the date hereof, and thereafter as provided for herein,
and shall be written by insurance companies (i) rated not less than A and a
financial rating of not less than Class X as rated in the most current "Best's
Insurance Guide" (or any substitute guide acceptable to Landlord), (ii)
authorized to do business in the state where the Premises are located, and (iii)
of recognized responsibility and which are reasonably satisfactory to Landlord
and any Mortgagee.
(g) The insurance required by this Lease, at the option of Tenant, may be
effected by blanket and/or umbrella policies issued to Tenant covering the
Premises and other properties owned or leased by Tenant, provided that the
policies otherwise comply with the provisions of this Lease and allocate to the
Premises the specified coverage, without possibility of reduction or coinsurance
by reason of, or damage to, any other premises named therein, and if the
insurance required by this Lease shall be effected by any such blanket or
umbrella policies, Tenant shall furnish to Landlord or Mortgagee certificates of
such policies, and, if requested, certified copies or duplicate originals.
(h) Beginning on the Commencement Date, Landlord shall maintain at its
expense, but subject to reimbursement as Additional Rent, all risk property
insurance (including flood, earthquake and loss of rents coverage in favor of
Landlord equal to twelve (12) months on the Building). Tenant shall maintain, at
its expense, all risk property insurance on all of its personal property,
including removable trade fixtures, located on the Premises. Said insurance
shall be in an amount equal to the full replacement cost of the Building as
determined by Landlord, including all additions and improvements made by Tenant.
Tenant shall maintain, at its expense, all risk property insurance on all of its
personal property, including removable trade fixtures, located on the Premises.
ARTICLE X
Fire and Other Casualty
In case of the destruction of the Premises or the Buildings of which the
Premises are a part by fire or other casualty during the term of this Lease, or
such partial destruction or damage thereto so as to render the Premises wholly
untenantable or unfit for occupancy, or should the Premises be so badly injured
that the same cannot be repaired within one hundred eighty (180) days from the
happening of such damage, or should the holder of any indebtedness secured by
the Premises not make the proceeds of insurance policies available for the
rebuilding of the damaged portion of the Premises and Landlord does not agree to
provide the necessary funds for such rebuilding, then and in any such case, at
the election of either Landlord or Tenant, upon written notice to the other
party exercised within thirty (30) days of the date it is determined that the
Premises cannot be repaired within one hundred eighty (180) days from the
happening of such damage, the Term hereby created shall cease and become null
and void from the date of such damage or destruction and then Tenant shall
immediately surrender the Premises and all interest therein to Landlord, and
Tenant shall pay the Rent within said Term only to the time of such destruction
or damage; and in case of such destruction or partial destruction of said
12
Buildings by fire, or other casualty, and the termination of this Lease pursuant
to the provisions of this Article X of this Lease, Landlord may re-enter and
repossess the Premises discharged from this Lease and may remove all parties
therefrom; provided, however, that the option to terminate this Lease pursuant
to the provisions of this Article X shall be null and void if not exercised
within thirty (30) days from the date it is determined that the Premises cannot
be repaired within one hundred eighty (180) days from the happening of such
damage. In the event the Premises, or any part thereof so damaged, are
repairable within one hundred eighty (180) days from the happening of such
damage, and also if the Lease is not terminated by reason of such damage,
Landlord shall enter and repair any such damage with all reasonable speed. From
the date of such injury and until repairs shall have been completed, the Rent,
or such proportionate share thereof as may be attributable to the portion
damaged or destroyed or rendered unusable in whole or part, shall be abated,
provided, if more than fifty percent (50%) of the balance of the Premises cannot
be used by Tenant in a manner contemplated by Article VII, Rent shall xxxxx
completely during said one hundred eighty (180) day period. In the event the
Premises shall be so slightly injured by fire, or other casualty, as not to be
rendered untenantable and unfit for occupancy, then Landlord agrees to repair
the same with reasonable promptness, and in that case the Rent accrued and
accruing shall not cease but shall continue without abatement. In performing
any acts pursuant to the provisions hereunder, Landlord shall use its best
efforts to cause the least practical interference with Tenant's business. In no
event however, shall the provisions of this Article become effective or be
applicable if the fire or other casualty and damage shall be the result of the
carelessness, negligence or improper conduct of Tenant or Tenant's agents,
employees, guests, licensees, invitees, subtenants, assignees or successors. In
such case, Tenant's liability for payment of the Rent and the performance of all
the covenants, conditions and terms hereof on Tenant's part to be performed
shall continue and Tenant shall be liable for the damage and loss suffered by
Landlord. Notwithstanding anything to the contrary, this provision shall not in
any way limit the Landlord's right to collect any Fixed Rent or Additional Rent
from any insurance company.
ARTICLE XI
Obligations of Tenant
Section 11.1. Compliance with Laws. Tenant shall promptly comply with all
--------------------
Requirements of Law of all Federal, state, municipal or over governmental or
quasi-governmental authorities or bodies then having jurisdiction over the
Premises (or any part thereof) and/or the use and occupation thereof by Tenant,
whether any of the same relate to or require (i) structural changes to or in and
about the Premises, or (ii) changes or requirements to or as the result of any
use or occupation thereof or otherwise, and subject to Article VIII, Tenant
shall so perform and comply, whether or not such Requirements of Law shall now
exist or shall hereafter be enacted or promulgated and whether or not the same
may be said to be within the present contemplation of the parties hereto.
Section 11.2. Notification of Landlord. Tenant agrees to give Landlord
------------------------
notice of any law, ordinance, rule, regulation or requirement enacted, passed,
promulgated, made, issued or adopted by any of the governmental departments or
agencies or authorities hereinbefore mentioned affecting in a material adverse
manner (i) the Premises, (ii) Tenant's use thereof or (iii) the financial
condition of Tenant, a copy of which is served upon or received by Tenant, or a
copy of which is posted on, or fastened or attached to the Premises, or
otherwise brought to the attention of Tenant, by mailing within five (5)
business days after such service, receipt, posting, fastening or attaching or
after the same otherwise comes to the attention of Tenant, a copy of each and
every one thereof to Landlord. At the same time, Tenant will inform Landlord as
to the Work
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which Tenant proposes to do or take in order to comply therewith.
Notwithstanding the foregoing, however, if such Work would require any
Alterations which would, in Landlord's opinion, reduce the value of the Premises
or change the general character, design or use of the Buildings or other
improvements thereon, and if Tenant does not desire to contest the same, Tenant
shall, if Landlord so requests, defer compliance therewith in order that
Landlord may, if Landlord wishes, contest or seek modification of or other
relief with respect to such Requirements, so long as Tenant is not put in
violation of any law, ordinance, rule, regulation or requirement enacted,
passed, promulgated, made, issued or adopted by any such governmental
departments or agencies or authorities, but nothing herein shall relieve Tenant
of the duty and obligation, at Tenant's expense, to comply with such
Requirements of Law, or such Requirements of Law as modified, whenever Landlord
shall so direct.
Section 11.3. Indemnification. Except in the case of the gross negligence
---------------
or willful misconduct of Landlord or its agents, employees, or contractors, or
breach of its obligations under this Lease, or as otherwise limited under
Article IX, Tenant shall defend, indemnify and save harmless Landlord, any
partners of Landlord and any officers, stockholders, directors or employees of
Landlord (collectively, "Indemnified Parties") from (a) any and all liabilities,
claims, causes of actions, suits, damages and expenses (collectively, "Claims")
arising from or under this Lease or Tenant's use, occupancy and operations of,
in or about the Premises prior to or during the Term or during the Term of the
Lease relating to the Premises; and (b) all costs, expenses and liabilities
incurred, including reasonable attorney's fees and disbursements through and
including appellate proceedings, in or in connection with any of such Claims. If
any action or proceeding shall be brought against any of the Indemnified Parties
by reason of any such Claims, Tenant, upon notice from any of the Indemnified
Parties, shall resist and defend such action or proceeding, at its sole cost and
expense by counsel to be selected by Tenant but otherwise satisfactory to such
Indemnified Party in its reasonable discretion. Tenant or its counsel shall keep
each Indemnified Party fully apprized at all times of the status of such
defense. Notwithstanding the foregoing, an Indemnified Party may retain its own
attorneys to defend or assist in defending any claim, action or proceeding
involving potential liability in excess of Five Million Dollars ($5,000,000),
and Tenant shall pay the actual and reasonable fees and disbursements of such
attorneys. The provisions of this Section 11.3 shall survive the expiration or
earlier termination of this Lease.
Section 11.4. No Liens. If at any time prior to or during the Term (or
--------
within the statutory period thereafter if attributable to Tenant), any
mechanic's or other lien or order for payment of money, which shall have been
either created by, caused (directly or indirectly) by, or suffered against
Tenant, shall be filed against the Premises or any part thereof, Tenant, at its
sole cost and expense, shall cause the same to be discharged by payment, bonding
or otherwise, within thirty (30) days after the filing thereof unless such lien
or order is contested by Tenant in good faith and Tenant provides sufficient
security or evidence of financial ability, in each case to the reasonable
satisfaction of Landlord, to pay the amount of such lien or order. Tenant shall,
upon notice and request in writing by Landlord, defend for Landlord, at Tenant's
sole cost and expense, any action or proceeding which may be brought on or for
the enforcement of any such lien or order for payment of money, and will pay any
damages and satisfy and discharge any judgment entered in such action or
proceeding and save harmless Landlord from any liability, claim or damage
resulting therefrom. In default of Tenant's procuring the discharge of any such
lien as aforesaid Landlord may, without notice, and without prejudice to its
other remedies hereunder, procure the discharge thereof by bonding or payment or
otherwise, and all cost and expense which Landlord shall incur shall be paid by
Tenant to Landlord as Additional Rent forthwith.
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Section 11.5. Liability for Work and Services. Landlord shall not under
-------------------------------
any circumstances be liable to pay for any work, labor or services rendered or
materials furnished to or for the account of Tenant upon or in connection with
the Premises, and no mechanic's or other lien for such work, labor or services
or material furnished shall, under any circumstances, attach to or affect the
reversionary interest of Landlord in and to the Premises or any alterations,
repairs, or improvements to be erected or made thereon. Nothing contained in
this Lease shall be deemed or construed in any way as constituting the request
or consent of Landlord, either express or implied, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration to or
repair of the Premises or any part thereof, nor as giving Tenant any right,
power or authority to contract for or permit the rendering of any services or
the furnishing of any materials on behalf of Landlord that would give rise to
the filing of any lien against the Premises.
Section 11.6. Damage to Property of Tenant. Neither Landlord nor its
----------------------------
agents shall be liable for any loss of or damage to the property of Tenant or
others by reason of casualty, theft or otherwise, or for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the gross negligence or willful misconduct of Landlord, its agents,
or employees.
ARTICLE XII
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Default by Tenant; Remedies
Section 12.1. Events of Default. Each of the following, which remain
-----------------
uncured beyond any applicable grace period, shall be deemed an event of default
(an "Event of Default") and a breach of this Lease by Tenant:
(a) If the Fixed Rent shall not be paid by Tenant for a period of five (5)
business days after written notice from Landlord that the same was due and
payable, provided, however, no such written notice shall be required for the
third and any subsequent failure to pay Fixed Rent before such failure shall
constitute an Event of Default.
(b) If Tenant shall fail to pay any Additional Rent required to be paid by
Tenant hereunder for a period of five (5) days after written notice has been
delivered to Tenant by Landlord that the same was due and payable, provided,
however, no such written notice shall be required for the third and any
subsequent failure to pay Additional Rent before such failure shall constitute
an Event of Default.
(c) If Tenant shall default in the performance or observance of any of the
other agreements, conditions, covenants or terms herein contained, if such
default shall continue for thirty (30) days after written notice by Landlord to
Tenant (or if such default is of such a nature that it cannot be completely
remedied within said thirty (30) day period, then if Tenant does not agree in
writing within such thirty (30) day period to cure the same, commence and
thereafter diligently prosecute the cure and complete the cure within a
reasonable period of time under the circumstances after such original written
notice of default by Landlord to Tenant).
(d) If Tenant shall transfer all or any of its interest in this Lease
without compliance with the provisions of this Lease applicable thereto.
15
(e) If (i) Tenant shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to Tenant, or seeking to
adjudicate Tenant bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution, composition or other relief with respect
to Tenant or Tenant's debts, or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for Tenant or for all or any substantial
part of Tenant's property; or (ii) Tenant shall make a general assignment for
the benefit of Tenant's creditors; or (iii) there shall be commenced against
Tenant any case, proceeding or other action of a nature referred to in clause
(i) above or seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of Tenant's property,
which case, proceeding or other action (A) results in the entry of an order for
relief or (B) remains undismissed, undischarged or unbonded for a period of
sixty (60) days; or (iv) Tenant shall takes any action consenting to or
approving of any of the acts set forth in clause (i) or (ii) above; or (v)
Tenant shall generally not, or shall be unable to, pay Tenant's debts as they
become due or shall admit in writing Tenant's inability to pay Tenant's debts.
(f) If Tenant is a corporation and shall cease to exist as a corporation
in good standing in the state of its incorporation, or if Tenant is a
partnership or other entity and Tenant shall be dissolved or otherwise
liquidated, then if Tenant does not completely remedy such default immediately
(or if Tenant's only knowledge of such default is by receipt of written notice
of such default, then within the ten (10) day period following receipt of such
written notice).
(g) If Tenant shall fail to maintain the insurance required by Article IX
or furnish in a timely manner the agreements and/or certifications required by
Articles XVIII and XX, respectively.
(h) An Event of Default under the Ground Lease shall have occurred and be
continuing (except as a result of a breach by Landlord thereunder); or Tenant
shall fail to comply with its covenants set forth in Article XXXVI hereof; or
the Ground Lease shall, in whole or in part (except as a result of a breach by
Landlord thereunder), terminate, cease to be the legal, valid and binding
obligation of Landlord or the Ground Lessor;
(i) An Event of Default shall have occurred under the Bond Documents and
be continuing, or any Bond Document or the Bond shall terminate, cease to be
binding or effective or cease to be the legal, valid and binding obligation of
any party thereof;
Section 12.2. Remedies. In addition to any other remedies available at law
--------
or in equity,
(a) If an Event of Default (i) described in Sections 12.1(c) or (d) hereof
shall occur and Landlord, at any time thereafter, at its option, gives written
notice to Tenant stating that this Lease shall terminate on the date specified
in such notice, which date shall be not less than three (3) days after the
giving of such notice, and if, on the date specified in such notice, Tenant
shall have failed to cure the default which was the basis for the Event of
Default, or (ii) described in Sections 12.1(a), (b), (e), (f) or (g) hereof
shall occur, then all rights of Tenant under this Lease shall terminate and
Tenant immediately shall quit and surrender the Premises, which termination
shall not relieve Tenant from any liability then or thereafter accruing
hereunder.
(b) If an Event of Default described in Section 12.1(a), (b) or (g) hereof
shall occur, or this Lease shall be terminated as provided in Section 12.2(a)
hereof, Landlord, without notice,
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and with or without court proceedings, (i) may re-enter and repossess the
Premises using such force for that purpose as may be lawful without being liable
to indictment, prosecution or damages therefor or (ii) may dispossess Tenant by
summary proceedings or otherwise, which re-entry and repossession by Landlord
shall not relieve Tenant from any liability then or thereafter accruing
hereunder, except that Tenant shall be entitled to any credit for rent received
from any reletting of the Premises or the value of the Premises pursuant to
Section 12.3(c) or (d).
Section 12.3. Effect Termination. If this Lease shall be terminated as
------------------
provided in Section 12.2(a) hereof and/or Tenant shall be dispossessed by
summary proceedings or otherwise as provided in Section 12.2(b) hereof:
(a) Tenant shall pay to Landlord all Rent payable under this Lease by
Tenant to Landlord to the date upon which this Lease shall have been terminated
or to the date of re-entry upon the Premises by Landlord, as the case may be.
(b) Landlord may repair and alter the Premises in such manner as Landlord
may deem reasonably necessary or advisable without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability, and for
let or relet the Premises or any parts thereof for the whole or any part of the
remainder of the Term or for a longer period, in Landlord's name or as agent of
Tenant, and out of any rent and other sums collected or received as a result of
such reletting Landlord shall: (i) first, pay to itself the actual cost and
expense of terminating this Lease, re-entering, retaking, repossessing,
repairing and/or altering the Premises, or any part thereof, and the actual cost
and expense of removing all persons and property therefrom, including in such
costs, market rate brokerage commissions, actual and customary legal expenses
and attomeys' fees and disbursements, (ii) second, pay to itself the actual cost
and expense sustained in securing any new tenants and other occupants, including
in such costs, market rate brokerage commissions, actual and customary legal
expenses and attorneys fees and disbursements and other expenses of preparing
the Premises for reletting, and, if Landlord shall maintain and operate the
Premises, the cost and expense of operating and maintaining the Premises, and
(iii) third, pay to itself any balance remaining on account of the liability of
Tenant to Landlord. Landlord in no way shall be responsible or liable for any
failure to relet the Premises or any part thereof, or for any failure to collect
any rent due on any such reletting, and no such failure to relet or to collect
rent shall operate to relieve Tenant of any liability under this Lease or to
otherwise affect any such liability.
Section 12.4. No Release From Liability. No termination of this Lease
-------------------------
pursuant to Section 12.2(a) hereof and no taking possession of and/or reletting
the Premises, or any part thereof pursuant to Sections 12.2(b) and 12.3(b)
hereof, shall relieve Tenant of its liabilities and obligations hereunder, all
of which shall survive such expiration, termination, repossession or reletting.
Section 12.5. Receipt of Moneys. No receipt of moneys by Landlord from
-----------------
Tenant after termination of this Lease, or after the giving of any notice of the
termination of this Lease shall reinstate, continue or extend the Term or affect
any of the right of Landlord to enforce the payment of Rent payable by Tenant
hereunder or thereafter falling due, or operate as a waiver of the right of
Landlord to recover possession of the Premises by proper remedy, except as
herein otherwise expressly provided, it being agreed that after the service of
notice to terminate this Lease or the commencement of any suit or summary
proceedings, or after a final order or judgment for the possession of the
Premises, Landlord may demand, receive and collect any monies due or thereafter
falling due without in any manner affecting such notice, proceedings,
17
order, suit or judgment, all such monies collected being deemed payments on
account of Tenant's liability hereunder.
Section 12.6. Strict Performance. No failure by Landlord to insist upon the
------------------
strict performance of any covenant, agreement, term or condition of this Lease
or to exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial Rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of such covenant, agreement,
teals or condition. No covenant, agreement, term or condition of this Lease to
be performed or complied with by Tenant, ant no breach thereof, shall be waived,
altered or modified except by a written instrument executed by Landlord. No
waiver of any breach shall affect or alter this Lease, but each and every
covenant, agreement, term and condition of this Lease shall continue in full
force and effect with respect to any other then existing or subsequent breach
thereof.
Section 12.7. Costs and Expenses. Tenant shall pay to Landlord all costs
------------------
and expenses, including, without limitation, attorneys' fees and disbursements,
incurred by Landlord in any action or proceeding to which Landlord may be made a
party by reason of any act or omission of Tenant. The prevailing party in any
action or settlement brought to enforce any of the covenants and provisions of
this Lease shall pay to the non-prevailing party, in addition to any other
relief available to such prevailing party, all costs, expenses and attorneys'
fees and disbursements incurred by such party in connection with such action.
Section 12.8. Default Rate. If an Event of Default shall occur under this
------------
Lease or Tenant shall fail to comply with its obligations under this Lease,
Landlord may (a) perform the same for the account of Tenant and (b) make any
expenditure or incur any obligation for the payment of money in connection with
any obligation owed to Landlord, including, but not limited to, reasonable
attomeys' fees and disbursements in instituting, prosecuting or defending any
action or proceeding, with interest thereon at the Default Rate and such amounts
shall be deemed to be Additional Rent hereunder and shall be paid by Tenant to
Landlord immediately upon demand therefor. Default Rate shall have the meaning
ascribed to it in Article I of this Lease; provided, however, that for purposes
of this Article XII, such Default Rate shall never exceed the maximum non-
usurious rate permitted by applicable law.
Section 12.9 Other Remedies. All rights and remedies of Landlord set forth
--------------
in this Lease are in addition to all other rights and remedies available to
Landlord at law or in equity, including, without limitation, any remedies which
would be available to the landlord under the Bond Lease. All rights and
remedies available to Landlord pursuant to this Lease or at law or in equity are
expressly declared to be cumulative. The exercise by Landlord of any such right
or remedy shall not prevent the concurrent or subsequent exercise of any other
right or remedy. No delay or failure by Landlord to exercise or enforce any of
Landlord's rights or remedies or Tenant's obligations shall constitute a waiver
of any such rights, remedies or obligations, Landlord shall not be deemed to
have waived any default by Tenant unless such waiver expressly is set forth in a
written instrument signed by Landlord. If Landlord waives in writing any
default by Tenant, such waiver shall not be construed as a waiver of any
covenant, condition or agreement set forth in this Lease except as to the
specific circumstances described in such written waiver. If Landlord shall
institute proceedings against Tenant and a compromise or settlement thereof
shall be made, then the same shall not constitute a waiver of any subsequent
default of a similar nature or of any covenant, condition or agreement set forth
herein, nor of any of Landlord's rights hereunder. Neither the payment by
Tenant of a lesser amount than the monthly installment of Fixed Rental,
Additional Rental or of any sums due hereunder nor any
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endorsement or statement on any check or letter accompanying a check for payment
of Rent or other sums payable hereunder shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or other sums or to pursue
any other remedy available to Landlord. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of this Lease. If Tenant defaults in the making of any payment to
any third party or in the doing of any act herein required to be made or done by
Tenant, then Landlord may, but shall not be required to, make such payment or do
such act. The taking of such action by Landlord shall not be considered as a
cure of such default by Tenant or prevent Landlord from pursuing any remedy it
is otherwise entitled to in connection with such default. If Landlord elects to
make such payment or do such act, then all costs and expenses incurred by
Landlord, plus interest thereon at the Default Rate, from the date incurred by
Landlord to the date of payment thereof by Tenant, shall constitute Additional
Rental due hereunder; provided however, that nothing contained herein shall be
construed to permit Landlord to charge or receive interest in excess of the
maximum rate then allowed by law. Tenant hereby expressly waives, for itself and
all persons claiming by, through, or under it, any right of redemption or for
the restoration of the operation of this Lease under any present or future law,
including without limitation any such right that Tenant would otherwise have in
case Tenant shall be dispossessed for any cause, or in case Landlord shall
obtain possession of the Premises as herein provided.
ARTICLE XIII
------------
Condemnation
(a) In the event that the whole of the Premises shall be taken for any
public or quasi-public use under any statute or by right of eminent domain, or
by private purchase by the condemnor in lieu thereof, then this Lease shall
automatically terminate as of the date that title shall be taken. In the event
that a part of the Premises or the Land, including the parking area, shall be so
taken as to render the Premises or the Buildings unusable for the purpose for
which the Premises or the Buildings are leased, then Landlord and Tenant shall
each have the right to terminate this Lease on thirty (30) days' written notice
to the other, given within sixty (60) days following the date of such taking.
In the event that this Lease shall terminate or be terminated, the Rent
hereunder shall be equitably adjusted as of the date of termination.
(b) In the event that a part of the Premises or the Buildings shall be so
taken and this Lease shall not terminate or be terminated pursuant to the
provisions of subparagraph(a) above, then the Rent shall be equitably
apportioned according to the square footage of the Premises or the Buildings so
taken and this Lease, in all other respects, shall remain in full force and
effect, and Landlord, at its own cost and expense, shall restore the remaining
portion of the Premises to the extent necessary to render it reasonably suitable
for the purpose for which the Premises or the Buildings were leased, provided
that such work shall not exceed the scope of the work required to be done in
originally constructing the Premises or the Buildings.
(c) All condemnation proceeds awarded or paid upon such a total or partial
taking of the Buildings or the Premises shall belong to and be the property of
Landlord, and without any sharing by Tenant, whether such compensation results
from diminution in value of the leasehold or to the fee interest in the
Premises. Tenant, however, shall have the right to seek and prosecute any claim
directly against the condemning authority in such condemnation proceedings for
moving expenses, inventory and/or movable trade fixtures, furniture and other
personal property belonging to Tenant, so long as such claim shall not diminish
or otherwise adversely affect Landlord's award or the award of any Mortgagee.
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(d) Subject to Tenant's right to terminate as set forth in subparagraph
(a) herein, Tenant agrees to execute and deliver, such instruments as may be
deemed necessary or required to expedite any condemnation proceedings or to
effectuate a proper transfer of title to such governmental or other public
authority, agency, body or public utility seeking to take or acquire the
Premises, the Buildings or any portion thereof. If title is transferred to such
governmental or other public authority, agency, body or public utility, Tenant
covenants and agrees to vacate the Premises and the Buildings, remove all of its
personal property therefrom and delivery up peaceable possession thereof to
Landlord or to such other party designated by Landlord on not less than ninety
(90) days' prior notice. Failure by Tenant to comply with any provision hereof
shall subject Tenant to such costs, expenses, damages and losses as Landlord may
incur by reason of Tenant's breach hereof.
ARTICLE XIV
Access and Right to Exhibit
(a) Landlord and its agents, employees, vendors, licensees and independent
contractors shall have the right to enter upon the Premises at all reasonable
hours and on not less than two (2) business days' prior notice, and only under
the supervision of Tenant (and in emergencies at all times): (i) to inspect the
same, (ii) during the last nine (9) months of the Initial Term, or any Option
Term, to post "For Sale" signs on the Buildings and to exhibit the Premises to
any prospective purchaser or Mortgagee; or (iv) for any other lawful purpose.
Any performance by Landlord hereunder shall not be deemed a waiver of Tenant's
default in failing to perform same, nor shall Landlord be liable for any
inconvenience, disturbance, loss of business, loss of use of the Premises or
other damage of Tenant, due to said performance by Landlord, and the obligation
of Tenant pursuant to this Lease shall not thereby be affected in any manner
whatsoever, provided that the rules and regulations shall be enforced and
applied in a uniform, non-discriminatory manner.
(b) For a period commencing nine (9) months prior to the end of the Term,
Landlord and its designees shall have reasonable access to the Premises for the
purpose of exhibiting the same to prospective tenants and to post any "To Let",
or to "To Lease" signs upon the Premises.
ARTICLE XV
Right of First Offer
Provided Tenant is not in default of its obligations under the Lease beyond
applicable notice and cure periods, during the Term of the Lease, Tenant shall
have a right of first offer ("Right of First Offer") to purchase the Premises on
the following terms and conditions. If, at any time during the Term, Landlord
intends to sell the Premises to a third party (other than to an affiliate of
Landlord), Landlord shall afford Tenant with a right of first offer to purchase
the Building. At such time, Landlord shall notify Tenant of such intention and
advise Tenant of its asking price and the proposed closing date (the "Offering
--------
Notice"). Within thirty (30) days after Tenant's receipt of the Offering Notice
------
(which shall constitute Landlord's offer to sell the Premises on such terms),
Tenant shall have the right to accept such offer and to purchase the Premises
from Landlord, and shall communicate its acceptance by notice delivered to
Landlord. Landlord and Tenant shall negotiate in good faith to reach agreement
as to the sale/purchase of the Premises, on terms that are customary for sales
of similar properties (unless expressly set forth to the contrary in the
Offering Notice), provided, however, if Landlord and Tenant are not able to
agree upon the terms of a definitive purchase and sale agreement for the
Premises, which incorporates the terms of the Offering Notice (with a closing
date as close as reasonably possible
20
to any closing date agreed to by any existing party agreeing to purchase at the
price set forth in the Offering Notice or otherwise as agreed by the parties in
such agreement), within thirty (30) days after acceptance of the offer by
Tenant, Tenant shall be deemed to have waived its rights to purchase, provided
Landlord has negotiated in good faith. In the event Tenant has not accepted
Landlord's offer to purchase the Premises within the time period provided above,
this right of first offer shall terminate. However, in the event any of such
proposed financial terms are modified by more than seven and one-half percent
(7.5%) subsequent to the delivery of the Offering Notice to Tenant, Tenant shall
be afforded another opportunity to evaluate the proposed transaction and to
accept and/or negotiate such revised terms. If Tenant has waived its rights
hereunder and Landlord sells the Building to a third party (other than to an
affiliate of Landlord), the provisions hereof shall be deemed null and void upon
the consummation of such sale. The rights set forth herein and Landlord's
obligations with respect thereto, shall be personal to the original Tenant and
any assignee to which the original Tenant's entire interest in this Lease has
been assigned pursuant to the Lease and may only be exercised by the original
Tenant or such assignee (but not any subtenant or other person or entity).
Notwithstanding anything contained herein to the contrary, the right of first
offer contained in this Article XV shall not apply to any transfer of the
Premises in connection with a foreclosure of the Mortgage or the delivery of a
deed in lieu of foreclosure delivered by Landlord and shall be deemed null and
void and of no further force and effect upon the consummation of a transfer of
the Premises pursuant to any foreclosure proceedings commenced by Lender or a
delivery of a deed in lieu of foreclosure by Landlord.
ARTICLE XVI
Assignment or Sublease
(a) Tenant may not sublet the Premises, or any part thereof, or assign
this Lease, without Landlord's prior written consent, which consent if given
shall require as a minimum that the following conditions be satisfied:
(i) Tenant shall give Landlord fifteen (15) days prior notice in
writing, which writing shall set forth the name and address of the assignee or
subtenant, the rental to be paid by said assignee or subtenant, together with a
summary of all other material terms and conditions of said assignment or
subletting;
(ii) At the time of such assignment and/or subletting, this Lease
must be in full force and effect without any material breach or default (after
any cure period) thereunder on the part of Tenant;
(iii) In the case of an assignment, the assignee shall assume, by
written recordable instrument, the due performance of all of Tenant's covenants,
conditions and obligations hereunder;
(iv) In the case of a sublease, the subtenant shall agree, by
written recordable instrument, to take occupancy subject to this Lease and to
perform all of Tenant's covenants, conditions and obligations hereunder;
(v) A copy of the assignment or sublease and the original
assumption agreement, in form and content satisfactory to Landlord and any
mortgagee, fully executed and acknowledged by the assignee or subtenant,
together with a certified copy of a properly executed corporate resolution, if
applicable, authorizing and accepting such assignment, subletting or
21
assumption agreement, shall be delivered to Landlord not less than fifteen (15)
days prior to the effective date of such assignment or subletting; and
(vi) Such assignment or subletting shall be upon and subject to all
of the terms and conditions of this Lease, and Tenant and any prior assignee or
sublessee shall continue to be and remain primarily, jointly and severally
liable hereunder for the due and full performance of the terms, conditions and
obligations hereunder, including, but not limited to, payment of Rent.
(b) Notwithstanding anything herein contained to the contrary and
notwithstanding any prior consent by Landlord, no subtenant or assignee shall
further assign or sublease the Premises without fifteen (15) days prior notice
to Landlord in each such instance and without compliance with the provisions of
this Paragraph.
(c) In the event that the Rent paid by said subtenant or assignee to
Tenant exceeds the Rent payable to Landlord under this Lease, such excess rent
shall be called "Profit". Tenant shall deduct from the Profit (i) reasonable
advertising, architectural, marketing, brokerage, legal, tenant fit-up and other
expenses incurred by Tenant in connection with the sublease or assignment and
not passed through by Tenant to the assignee or subtenant, (ii) the reasonable
costs and expenses incurred by Tenant with respect to fitting-up the designated
space to be assigned or sublet immediately prior thereto, and (iii) Rent paid by
Tenant to Landlord under the Lease for the designated space after a 6-month
period during which Tenant has advised Landlord to list such space for sublease
or assignment with a licensed broker and the space remains not subject to a
sublease or assignment. After making said deductions, Tenant shall pay fifty
percent (50%) of the adjusted Profit to Landlord as Additional Rent. It is
further understood that Tenant shall make available to Landlord, upon request,
all records reflecting all deductible expenses and rental payments in the event
of a sublet or assignment.
(d) Notwithstanding the foregoing provisions of this Paragraph, Tenant
shall have the right, without the necessity of obtaining Landlord's consent, but
subject to all other provisions of this Article XVI, to:
(i) Sublet all or part of the Premises to any parent or affiliate
of Tenant;
(ii) Assign this Lease to any parent or affiliate of Tenant; or
(iii) Assign this Lease to a corporation which succeeds to all or
substantially all of the assets and business of Tenant or into which Tenant is
merged, if the net worth of such corporation, following such assignment, equals
or exceeds the net worth of Tenant at the date hereof or immediately prior to
such assignment, whichever is greater; provided, however, that Tenant, at all
times shall be and remain primarily, jointly and severally liable under this
Lease despite any such assignment.
(e) For the purposes of subparagraph (e) above, the term "affiliate" shall
mean any company of which Tenant or Tenant's parent now or hereafter owns and
controls, directly or indirectly, twenty-five percent (25%) or more of the stock
having the right to vote for, or appoint, directors thereof. For the purpose of
this definition, the stock so owned or controlled shall be deemed to include all
stock owned or controlled directly or indirectly by any other company of which
Tenant or Tenant's parent owns or controls, directly or indirectly, twenty-five
percent (25%) or more of the stock having the right to vote for directors
thereof.
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(f) In addition to the right of Landlord to declare this Lease to be in
default, the failure of Tenant or its assignee or subtenant to comply with any
of the material provisions and conditions of this Paragraph, following notice
and after any applicable cure period shall, at Landlord's option, render such
purported assignment or sublease null and void and of no force and effect.
ARTICLE XVII
Waiver of Redemption
Upon the expiration or sooner termination of this Lease or in the event of
entry of judgment for the recovery of the possession of the Premises in any
action or proceeding, or if Landlord shall enter the Premises by process of law
or otherwise, Tenant, for itself and all persons claiming through or under
Tenant, including, but not limited to, its creditors, hereby waives and
surrenders any right or privileges or redemption provided or permitted by any
statute, law or decision now or hereafter in force, to the extent legally
authorized and does hereby waive and surrender up all rights or privileges which
it may or might have under and by reason of any present or future law or
decision, to redeem the Premises or for a continuation of this Lease after
having been dispossessed or ejected therefrom by process of law, or otherwise.
ARTICLE XVIII
Mortgage Priority
This Lease shall be and hereby is made subject and subordinate at all times
to the lien of all Mortgages and all advances made thereon which may now or
hereafter affect the Land, and/or Buildings, and to all increases, renewals,
modifications, consolidations, participations, replacements and extensions
thereof, irrespective of the time of recording such lien, without the necessity
of any further instrument of subordination. In the event, however, that
Landlord or Mortgagee desires confirmation of such subordination, Tenant shall
promptly execute and deliver any certificate or instrument that may be
requested. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord, any Mortgagee or
ground lessor, or any of their respective successors in interest may request to
evidence such subordination. Tenant shall not have the right to place any lien
or encumbrance of any kind against the Premises, or any of its fixtures,
furniture, equipment or improvements, other than a chattel mortgage on its
movable trade fixtures and equipment. Tenant further agrees that upon receipt of
notice of the existence of a Mortgage, accompanied by the name and address of
the Mortgage holder, Tenant shall furnish to said Mortgage holder copies of any
notices given to Landlord under or relating to this Lease.
ARTICLE XIX
Landlord Consent
With respect to any provision hereof which provides for the consent or
approval of Landlord, said consent or approval shall be in writing and shall not
be unreasonably withheld, conditioned or delayed.
ARTICLE XX
Certification
Tenant agrees, without charge and at any time, and from time to time,
within ten (10) days after written request, to certify by a written instrument
duly executed, acknowledged and
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delivered to Landlord or any other person, firm or corporation specified in such
request and for the following purposes, including, without limitation, sale,
financing or refinancing, assignment or subletting; (a) as to whether this Lease
has been modified or amended, and, if so, the substance and manner of such
modification or amendment; (b) as to the validity and force and effect of this
Lease; (c) as to the existence of any default thereunder; (d) as to the
existence of any offsets, counterclaims or defenses thereto on the part of
Tenant; (e) as to the commencement and expiration dates of the Term; (f) as to
the dates to which Rent payments have been made (g) as to any other matters as
may reasonable be so requested, including without limitation the condition of
all systems, elements and components of the Premises. Any such certificate may
be relied upon by Landlord and any other person, firm or corporation to whom the
same may be exhibited or delivered and their successors and assigns, and Tenant
shall be bound by the contents of such certificate.
ARTICLE XXI
Waiver of Trial by Jury
Landlord and Tenant waive the right to a trial by jury in any action or
proceeding based upon, or related to, the subject matter of this Lease. This
waiver is knowingly, intentionally, and voluntarily made by Landlord and Tenant
and Tenant acknowledges that neither Landlord or any person acting on behalf of
Landlord has made any representations of act to induce this waiver of trial by
jury or in any way to modify or nullify its effect. Landlord and Tenant further
acknowledge that they have been represented (or has had the opportunity to be
represented) in the signing of this lease and in the making of this waiver by
independent legal counsel, selected of their own free will, and that they have
had the opportunity to discuss this waiver with counsel. Landlord and Tenant
further acknowledge that they have read and understand the meaning and
ramification of this waiver provision and as evidence of this fact sign their
initials.
ARTICLE XXII
Option to Extend
Section 22.1 Renewal Option. Provided that Tenant shall not be in default
--------------
of any term, provision, condition or covenant therein at the time of the
exercise of the option set forth in this Article XXII or at the time said option
shall take effect and provided further that Tenant is occupying the Premises so
as to enable Tenant to carry out its business at the time of the exercise of the
option set forth in this Article XXII and at the time the option takes effect,
Tenant shall have the right to extend the Initial Term of this Lease for two (2)
additional periods of ten (10) years each (the "Option Term") commencing on the
date following the termination of the Initial Term. Said Option Term shall be
on the same terms, conditions, provisions and covenants as are set forth herein
with the following exceptions:
(a) Fixed Rent shall be (i) adjusted to the greater of (x) 95% of the
Market Rent or (y) the Fixed Rent payable during the final year of the Term
immediately prior to such extension, and (ii) the Fixed Rent as so determined
shall be increased by 15% beginning with the 61/st/ month of each Option Term;
(b) Following extension of the option for the second Option Term, Tenant
shall have no further unilateral renewal option; and
(c) Landlord shall lease to Tenant the Premises in its then-current
condition, and Landlord shall not provide to Tenant any allowances (e.g., moving
allowance, construction
24
allowance, and the like) or other tenant inducements.
Tenant's rights hereunder shall terminate if (1) this Lease or Tenant's
right to possession of the Premises is terminated, (2) Tenant assigns its
interest in this Lease or sublets more than fifty percent (50%) of the total
rentable square feet of the Premises (other than by way of a Permitted
Transfer), or (3) Tenant fails to timely exercise either of its options, time
being of the essence with respect to Tenant's exercise thereof.
Market rent shall be a rental rate equal to the then current market rate,
for comparable space in other buildings comparable to the Premises in the sub-
market taking into account all relevant factors including the size and cost of
the building in question when compared to the Premises and the amenity package
available for the building in question when compared to the Premises
(collectively the "Market Rent").
Upon receiving notice of Tenant's intent to extend the Term of the Lease,
Landlord shall notify Tenant in writing of its determination of Market Rent
("Landlord's Market Rent"). In the event Tenant rejects Landlord's
determination of the Market Rent, Tenant shall include with its notice of
rejection, Tenant's determination of Market Rent ("Tenant's Market Rent").
Landlord and Tenant shall then negotiate in good faith for thirty (30) days
following the delivery of Tenant's notice to Landlord in an attempt to reach an
agreement as to the Market Rent. If, however, Landlord and Tenant are unable to
reach an agreement as to the Market Rent, then Tenant shall have the option
within five (5) days following the end of such thirty (30) day period to (1)
revoke its election to extend the term of this Lease, or (2) to request binding
mediation. In the event that Tenant shall revoke its notice to extend the term
of this Lease, the Lease shall expire per its terms. In the event that Tenant
shall elect the binding mediation, then Landlord and Tenant shall, within ten
(10) days thereafter, each designate a qualified real estate professional. The
two (2) such appointees shall within five (5) days thereafter, designate a third
real estate professional having substantially similar qualifications.
After a third real estate professional has been designated in accordance
with the above paragraph, then within twenty (20) days after the appointment of
the third representative, the group shall select either Landlord's Market Rent
or Tenant's Market Rent as being most representative of Market Rent, and the
Lease shall be modified under those terms and conditions.
Section 22.2 Exercise Notice. Each Option Term herein granted to extend the
---------------
Term shall be exercised by Tenant by the delivery of written notice thereof to
Landlord not less than nine (9) months prior to the expiration of the Term and
any extensions thereof, time being of the essence. In the event that Tenant
shall fail to deliver said notice within such time, it shall be conclusively
deemed to mean that Tenant has elected not to exercise said Option Term,
whereupon all Option Terms shall cease and terminate and be of no further force
and effect.
ARTICLE XXIII
Quiet Enjoyment
Landlord covenants and agrees with Tenant that, upon Tenant's paying the
Rent and observing and performing all of the terms, provisions, covenants and
conditions on its part to be observed and performed, Tenant may peaceably and
quietly enjoy the premises during the Term hereof, subject however, to all of
the terms, conditions, covenants and provisions of this Lease and to any
Mortgage to which this Lease is subject.
25
ARTICLE XXIV
Landlord and Personal Liability
(a) The term "Landlord" as used in this Lease means only the then owner(s)
or the Mortgagee in possession for the time being of the Land and Buildings, so
that in the event of any sale of the Land and Buildings, Landlord herein shall
be and hereby is entirely freed and relieved of all obligations of Landlord
hereunder arising thereafter without the necessity of further agreement between
the parties and such purchaser or assignee shall have assumed and agreed to
observe and perform all obligations of Landlord hereunder.
(b) Notwithstanding anything herein contained to the contrary, it is
specifically understood and agreed that there shall be no personal liability on
the part of the individual, officers, directors and shareholders who comprises
Landlord, its successors or assigns, with respect to any of the terms,
provisions, covenants and conditions of this Lease, and that Tenant shall look
solely to the estate, property and equity of Landlord or such successor in
interest in the Land and Buildings or the sales proceeds thereof and subject to
the prior rights of any Mortgagee for the satisfaction of each and every remedy
of Tenant in the event of any breach by Landlord, or by such successor in
interest of any of the terms provisions, covenants and conditions of this Lease
to be performed by Landlord which exculpation of personal liability shall be
absolute and without exception.
ARTICLE XXV
Notices
All notices, demands or requests required under the terms of this Lease
shall be deemed to have been duly made or given when personally delivered or
received by the United States mail, or express mailed with a widely recognized,
reputable organization, postage prepaid, and addressed to the respective parties
at the addresses set forth in Article I, or to such other address as either
party may designate in writing, which notice of change of address shall be given
in the same manner.
ARTICLE XXVI
Covenants, Effect of Waiver
(a) Every term, condition, agreement or provision set forth in this Lease
shall be deemed to also constitute a covenant.
(b) The waiver of any term, provision, covenant or condition by either
party shall not be construed as a waiver of a subsequent breach of the same or
any other term, provision, covenant or condition, and the consent or approval by
Landlord to or of any act by Tenant requiring Landlord's consent or approval
shall not be construed to waive or render unnecessary Landlord's consent or
approval to or of any subsequent similar act by Tenant. The failure of either
party to insist in any one or more instances upon the strict performance of any
term, condition, provision, covenant or agreement or to exercise any option or
any right hereunder, shall not be construed as a waiver or relinquishment of the
same for the future. The receipt by Landlord of any Rent payment or the
acceptance by Landlord of the performance of anything required to be performed
by this Lease, with knowledge of a breach of any term, condition, provision or
covenant of this Lease shall not be deemed a waiver of such breach. No term,
condition, provision or covenant of this Lease shall be deemed to have been
waived unless such waiver is in writing and signed by the waiving party. No
payment by Tenant or receipt and/or
26
acceptance by Landlord of a lesser sum than the agreed-upon Rent shall operate
or be deemed or construed to be other than on account of the earliest Rent then
unpaid, nor shall any endorsement or statement on any check or any letter or
writing accompanying any check nor the acceptance of any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to its right to recover the balance of any Rent or to pursue
any other remedy to which it may be entitled.
ARTICLE XXVII
Holding Over
Any holding over or continued occupancy by Tenant after the expiration of
the Term of this Lease shall not operate to extend or renew this Lease or to
imply or create a new lease. In such event, Landlord shall have the right to
immediately terminate Tenant's occupancy, or to treat Tenant's occupancy as a
tenancy at sufferance. Tenant shall pay Fixed Rent during any holdover period at
a rate of 130% of the Fixed Rent during the last month of the expired Term and
shall continue to pay Additional Rent.
ARTICLE XXVIII
Attornment
At the option of Landlord, a purchaser of the Land, Buildings and Premises,
or the holder of any Mortgage affecting the Premises, Tenant agrees that neither
the sale of the Land and Buildings, nor the foreclosure of any Mortgage
affecting the Premises, nor the institution of any suit, action, summary or
other proceeding by Landlord or any Mortgagee shall, by operation of law or
otherwise, result in the cancellation or termination of this Lease or the
obligations of Tenant hereunder, and Tenant covenants and agrees in such event
to attorn to Landlord or to the holder of such Mortgage, or to the purchaser of
the Land and Buildings, whether by foreclosure or otherwise. Tenant agrees to
execute any document reasonably required to evidence such attornment, if
requested, within ten (10) days of the request therefor.
ARTICLE XXIX
Broker
Landlord and Tenant each represent to the other that they have dealt with
no real estate broker other than Professional Real Estate Services, Inc., 0000
Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx ("Broker"), in connection with
this Lease. Landlord and Tenant agree that if any claims should be made for
commissions by any other broker, the parties hereto will indemnify and save each
other harmless from any and all claims, demands, losses, liabilities, judgments,
costs, expenses, attorneys' fees or other damages resulting from, arising out
of, or in connection therewith. Tenant agrees to pay the brokerage commission
due in connection with this Lease to Broker in accordance with the terms and
conditions of a separate agreement entered into or to be entered into between
Tenant and Broker. Tenant agrees to indemnify, defend and hold Landlord harmless
from and against any claim for a sale or leasing commission which may be made by
Broker or anyone claiming under Broker in connection with the purchase of the
Premises by Landlord or the leasing of the Premises to Tenant, including any
extensions or renewals of this Lease.
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ARTICLE XXX
Environmental Laws
Section 30.1. Representations and Warranties. Tenant represents and
------------------------------
warrants to Landlord and each Mortgagee that Tenant has conducted an appropriate
inquiry and that except as disclosed in those specified reports listed on
Exhibit "C" attached hereto and made a part hereof no Hazardous Substance (as
-----------
defined below) has been used, generated, manufactured, produced, stored,
released, discharged or disposed of on, under, from or about the Premises except
in compliance with applicable Environmental Laws. Tenant will not use, generate,
manufacture, produce, store, release, discharge or dispose of on, under, from or
about the Premises or transport to or from the Premises any Hazardous Substance
except in compliance with applicable Environmental Laws and will use its best
efforts not to allow or suffer any other person or entity to do so.
Section 30.2 Compliance with Law. Tenant shall keep and maintain the
-------------------
Premises in compliance with, and shall use its best efforts not to cause, permit
or suffer the Premises to be in violation of any Environmental Law (as defined
below).
Section 30.3. No Violation. Tenant represents and warrants to Landlord and
------------
any Mortgagee that Tenant has not received any notice of a violation, and to its
knowledge there are no violations, of any Environmental Law, nor incurred any
previous liability therefor with respect to the Premises. Tenant shall give
prompt written notice to Landlord of:
(i) becoming aware of any use, generation, manufacture, production,
storage, release, discharge or disposal of any Hazardous Substance on, under,
from or about the Premises or the migration thereof to or from other property;
(ii) the commencement, institution or threat of any proceeding, inquiry or
action by or notice from any local, state or federal governmental authority with
respect to the use or presence of any Hazardous Substance on the Premises or the
migration thereof from or to other property;
(iii) all claims made or threatened by any third party against Tenant or
the Premises relating to any damage, contribution, cost recovery, compensation,
loss or Injury resulting from any Hazardous Substance;
(iv) Tenant's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Premises that could cause the
Premises or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of the Premises under any Environmental Law,
or any regulation adopted in accordance therewith, or to be otherwise subject to
any restrictions on the ownership, occupancy, transferability or use of the
Premises under any Environmental Law; and
(v) obtaining knowledge of any incurrence of expense by any governmental
authority or others in connection with the assessment, containment or removal of
any Hazardous Substance located on, under, from or about the Premises or any
property adjoining or in the vicinity of the Premises.
Section 30.4. Legal Proceedings. Landlord shall have the right, but not the
-----------------
obligation, to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated with respect to the Premises in connection with
any Environmental Law at its own expense or be defended by Tenant from and
against any such proceedings or actions with counsel chosen by
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Landlord (provided that Landlord and Tenant shall attempt, in good faith, to
agree on one counsel to represent both Landlord and Tenant, if in Landlord's
good faith determination such joint representation is feasible or appropriate
under the circumstances), and shall have the right to make inquiry of and
disclose all information to appropriate governmental authorities when advised by
counsel that such disclosure may be required under applicable law.
Section 30.5. Authorization. Without Landlord's prior written consent,
-------------
which consent shall not be unreasonably withheld, conditioned or delayed, Tenant
shall not take any remedial action, other than pursuant to the plan developed in
accordance with Section 30.7, in response to the presence of any Hazardous
Substance on, under, from or about the Premises, nor enter into any settlement,
consent or compromise which might, in Landlord's reasonable judgment, impair the
value of Landlord's interest in the Premises under this Lease; provide, however,
that Landlord's prior consent shall not be necessary if the presence of
Hazardous Substance on, under, from or about the Premises either poses an
immediate threat to the health, safety or welfare of any individual or is of
such a nature that an immediate remedial response is necessary and it is not
practical or possible to obtain Landlord's consent before taking such action. In
such event, Tenant shall notify Landlord as soon as practicable of any action so
taken. Landlord agrees not to withhold its consent, where such consent is
required hereunder, if either (i) a particular remedial action is ordered by a
court or any agency of competent jurisdiction, or (ii) Tenant establishes to the
reasonable satisfaction of Landlord that there is no reasonable alternative to
such remedial action which would result in less impairment of Landlord's
interest in the Premises.
Section 30.6. Environmental Indemnification. Tenant shall protect,
-----------------------------
indemnify and hold harmless Landlord and each Mortgagee, their respective
directors, officers, partners employees, agents, successors and assigns from and
against (a) any and all claim, loss, damage, cost, expense, liability, fines,
penalties, charges, administrative and judicial proceedings and orders,
judgments. remedial action requirements, enforcement actions of any kind
(including, without limitation, reasonable attorneys' and costs) directly or
indirectly arising out of or attributable to, in whole or in part, the breach of
any of the covenants. representations and warranties of this Article XXX or the
use, generation, manufacture, production, storage, release, threatened release,
discharge, disposal, or presence of a Hazardous Substance on, under, from or
about the Premises due to the actions of Tenant, or any of its employees,
agents, contractors of subcontractors, or (b) any other activity carried on or
undertaken on or off the Premises, whether during the period of Tenant's
ownership of the Premises or during the Term, by Tenant or any employees,
agents, contractors or subcontractors of Tenant or any third persons present on
the Premises with the consent of the Tenant, in connection with the handling,
treatment, removal, storage, decontamination, clean-up, transport or disposal of
any Hazardous Substance located or present on, under, from or about the Premises
during the Term or Tenant's ownership of the Premises or both, including,
without limitation: (i) the costs of any required or necessary repair, cleanup
or detoxification of the Premises and the preparation and implementation of any
closure, remedial or other required plans including, without limitation: (A) the
costs of removal or remedial action incurred by the United States Government or
the state in which the Premises are located, or response costs incurred by any
other person, or damages from injury to, destruction of, or loss of natural
resources, including the costs of assessing such injury, destruction or loss,
incurred pursuant any Environmental Law; (B) the clean-up costs, fines, damages
or penalties incurred pursuant to the provisions of applicable state law; and
(C) the cost and expenses of abatement, correction or clean-up, fines, damages,
response costs or penalties which arise from the provisions of any other
statute, state or federal; and (ii) liability for personal injury or property
damage, including damages assessed for the maintenance of the public or private
nuisance,
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response costs or for the carrying on of an abnormally dangerous activity.
This indemnity is intended to be operable under 42 U.S.C. Section
9607(e)(1), and any successor section thereof and shall survive expiration or
earlier termination of this Lease and any transfer of all or a portion of the
Premises by Tenant.
The foregoing indemnity shall in no manner be construed to limit or
adversely affect Landlord's rights under this Article XXX, including, without
limitation, Landlord's rights to approve any Remedial Work (as defined below) or
the contractors and consulting engineers retained in connection therewith.
Section 30.7. Remedial Work. In the event that any investigation, site
-------------
monitoring, containment, cleanup, removal, restoration or other remedial work of
any kind or nature (the "Remedial Work'") is required of Landlord or Tenant by
any applicable local, state or federal law or regulation, any judicial order, or
by any governmental entity or person because of, or in connection with, the
current at future presence, suspected presence, release or suspected release of
a Hazardous Substance in of into the air, soil, groundwater, surface water or
soil vapor at, on, about, under or within the Premises (or any portion thereof),
Tenant shall within thirty (30) days after written demand for performance
thereof by Landlord (or such shorter period of time as may be required under any
applicable law, regulation, order or agreement), commence to perform, or cause
to be commenced, and thereafter diligently prosecute to completion, within such
period of time as may be required under any applicable law, regulation, order or
agreement, all such Remedial Work at Tenant's sole expense in accordance with
the requirements of any applicable governmental authority or Environmental Law.
All Remedial Work shall be performed by one or more contractors, approved in
advance in writing by Landlord and under the supervision of a consulting
engineer in advance in writing by Landlord. All costs and expenses of such
Remedial Work shall be paid by Tenant as Additional Rent, including, without
limitation, the charges of such contractor(s) and/or the consulting engineer,
and Landlord's reasonable attorneys' fees and costs incurred in connection with
monitoring or review of such Remedial Work. In the event Tenant shall fail to
timely commence, or cause to be commenced, or fail to complete the Remedial Work
within the time required above, Landlord may, but shall not be required to,
cause such Remedial Work to be performed and all costs and expenses thereof, or
incurred in connection therewith shall be paid by Tenant to Landlord as
Additional Rent forthwith.
Section 30.8. Inspections. In the event that Landlord reasonably believes
-----------
that there may be a violation or threatened violation by Tenant of any
Environmental Law or a violation or threatened violation by Tenant of any
covenant under this Article XXX. Landlord is authorized, but not obligated, by
itself, its agents, employees or workmen to enter at any reasonable time, so
long as Landlord uses its reasonable best efforts to not unduly interfere with
Tenant's normal conduct of business, upon any part of the Premises for the
purposes of inspecting the same for Hazardous Substances and Tenant's compliance
with this Article XXX, and such inspections may include, without limitation,
soil borings. Tenant agrees to pay to Landlord, upon Landlord's demand, all
actual and customary expenses, costs or other amounts incurred by Landlord in
performing any inspection for the purposes set forth in this Section 30.8 which
results in the confirmation of the existence of Hazardous Substances in
violation of any Environmental Law or Tenant's obligations under this Lease.
Section 30.9. Costs and Expenses. All costs and expenses incurred by
------------------
Landlord under this Article XXX shall be immediately due and payable as
Additional Rent upon demand and shall bear interest at the Default Rate from the
date of notice of such payment by Landlord and
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the expiration of any grace period provided herein until repaid.
Section 30.10. "Environmental Laws" shall mean any federal, state or local
------------------
law, statute, ordinance or regulation pertaining to health, industrial hygiene,
hazardous waste or the environmental conditions on, under, in or about the
Premises, including, without limitation, the laws listed in the definition of
Hazardous Substances below.
Section 30.11. "Hazardous Substances" shall mean any element, compound,
--------------------
chemical mixture, contaminant, pollutant, material, waste or other substance
which is defined, determined or identified as a "hazardous substance",
"hazardous waste" or "hazardous material" under any federal, state or local
statute, regulation or ordinance applicable to a real property, as well as any
amendments and successors to such statute and regulations, as may be enacted and
promulgated from time to tune, including, without limitation, the following: (i)
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(codified in scattered sections of 26 U. S.C., 33 U.S.C., 42 U.S.C. and 42
U.S.C. (S) 9601 et seq.); (ii) the Resource Conservation and Recovery Act of
------
1976 (42 U.S.C. (S) 6901 et seq.); (iii) the Hazardous Materials Transportation
------
Act (49 U.S.C. (S) 1801 et. seq.); (vi) the Toxic Substances Control Act (15
U.S.C. (S) 2601 et seq.; (v) the Clean Air Act (33 U.S.C.-(S) 1251 et seq.);
------ ------
(vi) the Clean Air Act (42 U.S.C. (S) 7401 et seq.); (vii) the Safe Drinking
------
Water Act (21 U.S.C. (S) 349, 42 U.S.C. (S) 201 and (S) 300f et seq.); (viii)
------
the National Environmental Policy Act of 1969 (42 U.S.C. (S) 3421); (ix) the
Superfund Amendment and Reauthorization Act of 1986 (codified in scattered
sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); and (x) Title III of
the Superfund Amendment and Reauthorization Act (40 U.S.C. (S) 1101 et seq.).
------
ARTICLE XXXI
Validity of Lease
The terms, conditions, covenants and provisions of this Lease shall be
deemed to be severable. If any clause or provision herein contained shall be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or
by operation of any applicable law, the same shall be deemed to be severable and
shall not affect the validity of any other clause or provision herein, but such
other clauses or provisions shall remain in full force and effect, unless such
provisions shall relate, in any material respect, to any payment of Rent
hereunder, in which event, Landlord, on not less than thirty (30) days' written
notice to Tenant, shall have the right to terminate this Lease on the date
specified in such notice, whereupon all Rent charges shall be apportioned as of
the date of termination and with the same force and effect as if the Lease
terminated on the maturity date set forth herein. This Lease shall be
interpreted, governed by and enforced in accordance with the laws of the state
in which the Premises are located.
ARTICLE XXXII
Reference
Wherever herein the singular number is used, the same shall include the
plural, and the masculine gender shall include the feminine and neuter genders,
if applicable. The paragraph headings and captions used herein are for
reference and convenience only. The words "re-enter" and "re-entry" as used
herein are not restricted to their technical legal meaning.
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ARTICLE XXXIII
Entire Agreement
This Lease contains the entire agreement between the parties. No oral
statement or prior written matter shall have any force or effect nor shall the
waiver of any provision of this Agreement be effective unless in writing, signed
by the waiving party. Tenant agrees that it is not relying on any
representations or agreements other than those contained in this Lease. This
Agreement shall not be modified except by a writing executed by both parties,
nor may this Lease be cancelled by Tenant except with the written consent of
Landlord, unless otherwise specifically provided herein. The covenants,
provisions, terms, conditions and agreements contained in this Lease shall bind
Landlord and Tenant and their respective successors and assigns and shall inure
to the benefit of Landlord, Tenant, their respective successors, the assigns of
Landlord and the assigns or sublessees of Tenant who shall have obtained an
assignment of lease or sublease in accordance with the provisions of this Lease
hereto.
ARTICLE XXXIV
Merger of Title
There shall be no merger of this Lease or of the leasehold estate created
hereby by reason of the fact that the same Person may acquire, own or hold,
directly or indirectly, in whole or in part, (a) this Lease or the leasehold
estate created hereby or any interest in this Lease or such leasehold estate, or
(b) the ground leasehold estate in the Premises, except as may expressly be
stated in a written instrument duly executed and delivered by the appropriate
Person.
ARTICLE XXXV
Assignment by Landlord
Except in connection with any indebtedness secured by the Premises from
time to time, Landlord agrees not to assign all or any part of Landlord's
interest in this Lease or the Premises to any party who, at the time of such
assignment, is a material competitor of Tenant in the business of information
technology or has been or is involved in material litigation or threatened
litigation with Tenant (collectively, an "adverse assignee") without first
offering the Premises to Tenant on the same terms and conditions contained in
any such offer. Landlord may in writing submit to Tenant the name of any party
to whom Landlord wishes to assign all or any part of Landlord's interest in this
Lease. Within fifteen (15) days after receipt, Tenant shall in writing advise
Landlord that such party is or is not an adverse assignee and whether Tenant
wishes to exercise its right of first offer. Any exercise of the right of first
offer shall be in accordance with the provisions of Article XV. If Tenant fails
to respond to Landlord within such period of time, said party shall been deemed
not to be an adverse assignee. The limitations set forth in this Article shall
not apply to any purchaser at a judicial or non-judicial foreclosure sale, or to
any deed in lieu of foreclosure to or on behalf of a Mortgagee, pursuant to the
terms of any Mortgage.
ARTICLE XXXVI
Ground Lease and Bond Documents
During the Term, Tenant shall not do or permit anything that would violate,
breach, or be contrary to any of the terms, conditions or covenants of the
Ground Lease and the Bond Documents, and Tenant shall observe and perform all
the obligations of Landlord under the Ground Lease and the Bond Documents which
relate to Tenant's use and occupancy of the
32
Premises other than the payment rent.
ARTICLE XXXVII
Miscellaneous
Section 37.1 Amendments and Modifications. Neither this Lease, any lease
----------------------------
supplement nor any provision hereof may be amended, waived, discharged or
terminated except by an instrument in writing in recordable form signed by
Landlord and Tenant.
Section 37.2 Successors and Assigns. All the terms and provisions of this
----------------------
Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 37.3 Headings and Table of Contents. The headings and table of
------------------------------
contents in this Lease are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
Section 37.4 Counterparts. This Lease may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
Section 37.6 Governing Law. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED
-------------
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES. WITHOUT LIMITING THE FOREGOING, IN THE
EVENT THAT THIS LEASE IS DEEMED TO CONSTITUTE A FINANCING, WHICH IS THE
INTENTION OF THE PARTIES, THE LAWS OF THE STATE OF TENNESSEE, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES, SHALL GOVERN THE CREATION, TERMS AND PROVISIONS OF
THE INDEBTEDNESS EVIDENCED HEREBY.
Section 37.7 Lease Contingency. Notwithstanding any other terms and
-----------------
provisions of this Lease, this Lease shall not be effective unless and until
Lessor acquires the leasehold title to the Premises, but upon the acquisition of
such title, this Lease shall become effective and in full force and effect
without further action of the parties. If Lessor shall not have acquired such
title on or before September 28, 2001, then this Lease shall be null and void
and of no further force and effect.
The balance of this page has been left blank intentionally.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of the day and year first above written.
WITNESS: LANDLORD:
/s/ X. X. X'Xxxxxxxxx
----------------------- XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Xxxxx Real Estate Investment Trust,
Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Its: Xxxxxxx X. Xxxxxxxx
--------------------------
Executive Vice President
WITNESS: TENANT:
XXXXXX MICRO L.P.,
/s/ [ILLEGIBLE] a Tennessee Limited Partnership
---------------------- By: Xxxxxx Micro Inc.,
its General Partner
By: /s/ Xx. Xxxx X. XxXxxxxx
------------------------
Its: President
------------------------
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