EXHIBIT 10.36
LEASE
THIS LEASE is made between the Landlord and the Tenant named below effective as
of the date that this Lease is last executed by Landlord and Tenant.
BASIC LEASE TERMS AND INFORMATION
LANDLORD: BR Partners Two, LLC, an Indiana
limited liability company
ADDRESS FOR MAIL AND DELIVERIES: c/o Lauth
Property Group, 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention -
President
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
ELECTRONIC ADDRESS: xxx.xxxxxxxxxxxxx.xxx
TENANT: Platinum Propane of Chicago, LLC,
an Illinois limited liability company.
ADDRESS FOR MAIL AND DELIVERIES: 000
Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxx-Xxxxx, Xxxxx
Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Copy to: General Counsel
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
ELECTRONIC ADDRESS: xxxxxx@xxxxxxxxx.xxx
PREMISES: The land more particularly
described in EXHIBIT "A" attached hereto and
all improvements located thereon, including
but not limited to any improvements to be
constructed pursuant to this Lease.
LEASE TERM: 180 months, with three (3)
options to extend the Lease five (5) years each
as provided in Section 33 (p).
TARGET COMMENCEMENT DATE: February 1, 2004
MONTHLY BASE RENT SCHEDULE:
Months Monthly Amount Annual Amount
---------------------------------------------------------------------
1-12 $ 27,069 $324,822
13-24 $ 27,745 $332,943
25-36 $ 28,439 $341,266
37-48 $ 29,150 $349,798
48-60 $ 29,879 $358,543
61-72 $ 30,626 $367,506
73-84 $ 31,391 $376,694
85-96 $ 32,176 $386,111
97-108 $ 32,980 $395,764
109-120 $ 33,805 $405,658
121-132 $ 34,650 $415,800
133-144 $ 35,516 $426,195
145-156 $ 36,404 $436,849
157-168 $ 37,314 $447,771
169-180 $ 38,247 $458,965
SECURITY DEPOSIT: $ None
OUTSIDE BROKER: Xxxxxxx Xxxxxx of Development Advisors
PERMITTED USE: Refurbishing, refilling and distributing propane
tanks not to exceed 100 pounds.
ADDENDA: None
1. GRANTING CLAUSE. In consideration of the obligation of Tenant to pay
rent as herein provided and in consideration of the other terms, covenants, and
conditions hereof, Landlord leases to Tenant, and Tenant takes from Landlord,
the Premises, to have and to hold for the Lease Term, subject to the terms,
covenants and conditions of this Lease. The Lease Term shall commence on the
first to occur of (i) the Target Commencement Date, provided that "Substantial
Completion" (as herein defined) of Landlord's Work has occurred; (ii) the day
Tenant's personnel first conduct business at the Premises; or (iii) the 30th day
following Landlord's notice to Tenant that Substantial Completion of Landlord's
Work has occurred (the "Commencement Date") and shall end on the date that
follows the remainder of the month in which the Commencement Date occurs plus
the number of full months in the Lease Term, as may be extended as provided
herein.
2. ACCEPTANCE OF PREMISE. Landlord shall make all improvements as
described in EXHIBIT "B-1" (Scope of Work) and EXHIBIT "B-2" (Schedule of
Preliminary Design Approvals) (these exhibits are collectively referred to
herein as "Landlord's Work"). Tenant may have access to the Premises prior to
the Commencement Date for the purpose of installing its fixtures, equipment and
furnishings, if any; provided that, Tenant shall coordinate the installation of
such fixtures, equipment and furnishings so that such installation does not
interfere with Landlord's Work and Tenant shall agree to abide by all the
provisions of the Lease, other than the payment of rent, upon such access.
Landlord shall (i) obtain all permits and approvals necessary for the completion
of Landlord's Work, and (ii) complete Landlord's Work in compliance with all
applicable laws, ordinances and regulations. Landlord's Work shall be deemed to
be substantially completed on the date that Landlord delivers to Tenant a
certificate of Substantial Completion issued by Landlord's project architect
indicating that Landlord's Work has been completed subject only to identified
"punch-list" items that do not materially affect Tenant's ability to use the
Premises and further certifying that Landlord's Work is in compliance with all
current Legal Requirements (as defined below) and that the utility services
specified in Landlord's Work have been brought to the Premises (hereinafter
referred to as "Substantial Completion"). Tenant shall have the right to
accompany Landlord in inspecting the Premises for punch-list items, and Landlord
shall use its best efforts to have all punch-list items completed within sixty
(60) days. Tenant agrees that all work on its initial and any subsequent
improvements shall be performed by Xxxxx Property Group or a subsidiary or
affiliate of Landlord which shall receive a fee as Landlord's construction
manager or general contractor;
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provided, however, that if Tenant complies with Section 14 below Tenant may
perform subsequent improvements itself, or hire a third party to perform such
work, in the event that (i) the proposed price/fee for any work to be performed
by Xxxxx Property Group or a subsidiary or affiliate of Landlord materially
exceeds the local market price for such work, or (ii) any prior work performed
by Xxxxx Property Group or a subsidiary or affiliate of Landlord for Tenant or
an affiliate of Tenant was not performed in a manner reasonably satisfactory to
Tenant or an affiliate of Tenant. Landlord and Tenant shall execute an
Acceptance Letter And Rent Commencement Date Agreement as described in EXHIBIT
"C" attached hereto, which shall become part of this Lease. Landlord covenants
and agrees that it will repair at its sole cost and expense all defects in
workmanship and materials in Landlord's Work of which Landlord is notified
within one (1) year of the issuance of the certificate of Substantial
Completion. Landlord also shall provide to Tenant the benefit of any and all
warranties and guarantees of the contractor, subcontractors, installers,
suppliers and manufacturers during said one (1) year warranty period and for the
longer warranty periods applicable to other systems, subject in each case to any
limitations and exclusions set forth therein.
3. USE. The Premises shall be used only for the Permitted Use and for
no other purpose without Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed. Tenant will use the Premises in a
careful, safe and proper manner and, subject to ordinary wear and tear, will not
commit waste, overload the floor or structure of the Premises or subject the
Premises to use that would damage the Premises. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise, or vibrations to
emanate from the Premises, or take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Landlord or
any other party. Tenant, at its sole expense, shall use and occupy the Premises
in compliance with all laws, including, without limitation, the Americans With
Disabilities Act, orders, judgments, ordinances, regulations, codes, directives,
permits, licenses, covenants and restrictions now or hereafter applicable to the
Premises (collectively, "Legal Requirements"). The Premises shall not be used as
a place of public accommodation under the Americans With Disabilities Act or
similar state statutes or local ordinances or any regulations promulgated
thereunder, all as may be amended from time to time. Tenant shall, at its
expense, make any alterations or modifications, to the Premises, that are
required as a result of changes in Legal Requirements after the Commencement
Date. Tenant will not use or permit the Premises to be used for any purpose or
in any manner that would (a) void any insurance on the Premises; (b) increase
the insurance risk beyond that applicable to the Permitted Use; or (c) cause the
disallowance of any sprinkler credits; (d) be prohibited by any applicable laws,
rules regulations, ordinances, or restrictions of any government entity; or (e)
violate any applicable agreements to which Tenant is bound or of which Tenant
has notice. If any increase in the cost of any insurance on the Premises over
that applicable to the Permitted Use is caused by Tenant's use or occupation of
the Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord. Any occupation of the Premises by Tenant
prior to the Commencement Date shall be subject to all obligations of Tenant
under this Lease other than the payment of rent.
4. BASE RENT. Throughout the Lease Term, Tenant shall pay Base Rent in
the amount set forth above. Tenant promises to pay to Landlord in advance,
without demand, deduction or set-off, monthly installments of Base Rent and
Additional Rent on or before the first day of each calendar month commencing on
the Commencement Date. If the Lease Term commences or expires on a date other
than the first day or the last day of a calendar month, respectively, then the
Rent payable for such partial calendar month shall be an amount equal to the
monthly installment of Rent otherwise then in effect, divided by the number of
days in the full calendar month during which the Lease Term commences or
expires, respectively, and multiplied by the number of days in the partial
calendar month after and including the Commencement Date or before and including
the date of expiration, respectively, and provided further that the Rent for any
partial calendar month at the commencement of the Initial Lease Term shall be
payable on the first day of the first full calendar month during the Lease Term.
All sums, liabilities, obligations and other amounts which Tenant is required to
pay or discharge pursuant to this Lease in addition to Base Rent, including
without limitation assessments or common area maintenance charges due and
payable to any applicable ownership associations, together with any interest,
penalty, or other sum which may be added for late payment thereof, shall
constitute additional rent hereunder (herein called "Additional Rent"). In the
event of any failure on the part of Tenant to pay or discharge any of the
foregoing, Landlord shall have all rights, powers and remedies provided for
herein (or by law or equity or otherwise) in the case of nonpayment of
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Base Rent. All payments required to be made by Tenant to Landlord hereunder
shall be payable at such address as Landlord may specify from time to time by
written notice delivered in accordance herewith. The obligation of Tenant to pay
Base Rent and Additional Rent (sometimes hereinafter collectively referred to as
"Rent") and the obligations of Landlord under this Lease are independent
obligations. Tenant shall have no right at any time to xxxxx, reduce, or set-off
any Rent due hereunder.
5. LATE CHARGES. Any amount not paid by Tenant within five (5) days
after its due date in accordance with the terms of this Lease shall bear
interest from such due date until paid in full at the lesser of (i) the highest
rate permitted by applicable law or (ii) the greater of twelve percent (12%) per
annum or the Prime Rate (as reported in the Wall Street Journal) of interest
("Prime Rate") plus four percent (4%) per annum. It is expressly the intent of
Landlord and Tenant at all times to comply with applicable law governing the
maximum rate or amount of any interest payable on or in connection with this
Lease. If applicable law is ever judicially interpreted so as to render usurious
any interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder.
6. SECURITY DEPOSIT. The requirement for a Security Deposit has been
waived by Landlord.
7. UTILITIES. Tenant shall pay for all water, gas, electricity, heat,
light, power, telephone, sewer, sprinkler services, refuse and trash collection,
and other utilities and services used on the Premises, and any storm sewer
charges or other similar charges for utilities imposed by any governmental
entity or utility provider, together with any taxes, penalties, surcharges or
the like pertaining to Tenant's use of the Premises. Tenant, at its expense,
shall do anything necessary to maintain the continuation of such services; but
nothing contained in this Lease shall constitute any consent or request by
Landlord, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Landlord or the Premises in respect
thereof. No interruption or failure of utilities shall result in the termination
of this Lease or the abatement of rent.
8. TAXES. Tenant shall pay before the time when due, all taxes,
payments in lieu of taxes, assessments and governmental charges that accrue
against the Premises (collectively referred to as "Taxes") during the Lease
Term. Landlord may contest by appropriate legal proceedings the amount,
validity, or application of any Taxes or liens thereof. All capital levies or
other taxes assessed or imposed on Landlord upon the Rent payable to Landlord
under this Lease and any franchise tax, excise, transaction, sales or privilege
tax, assessment, levy or charge measured by or based, in whole or in part, upon
such Rents from the Premises or any portion thereof shall be paid by Tenant or
upon demand; provided, however, in no event shall Tenant be liable for any net
income taxes imposed on Landlord unless such net income taxes are in
substitution for any Taxes payable hereunder. If any such tax or excise is
levied or assessed directly against Tenant, then Tenant shall be responsible for
and shall pay the same at such times and in such manner as the taxing authority
shall require. Tenant shall be liable for all taxes levied or assessed against
any personal property or fixtures placed in the Premises, whether levied or
assessed against Landlord or Tenant. Tenant shall furnish to Landlord evidence
of payment of any amount payable under this Paragraph before the same is due and
shall furnish to Landlord, within ten (10) days after reasonable demand by
Landlord, proof of the payment of any other amount which is the obligation of
Tenant hereunder. In the event that Landlord becomes obligated to a mortgagee to
make payments for taxes and assessments in accordance with the terms of the
mortgage, upon notice thereof by Landlord, Tenant shall pay to Landlord on the
payment dates for Base Rent, the amounts required by the mortgagee. Tenant shall
not be liable to Landlord, any mortgagee or third party for any taxes and
assessments with respect to the Premises for which Tenant has deposited
available funds with Landlord to pay such taxes and assessments. Tenant shall
satisfy the requirements of any public or private incentives, abatements or
other benefits awarded to Tenant or the Premises, and Tenant shall indemnify and
hold Landlord harmless from any loss, cost or damage, including but not limited
to reasonable
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attorneys fees resulting at any time during the Lease Term or thereafter as a
result of Tenant's failure to satisfy such requirements.
9. INSURANCE.
Tenant, at its expense, shall maintain during the Lease Term (i) all
risk property insurance covering the full replacement cost of all property,
betterments and improvements of the Premises including coverage for earthquake;
(ii) worker's compensation insurance with no less than the minimum limits
required by law; (iii) employer's liability insurance with such limits as
required by law; (iv) a minimum of twelve (12) months of business interruption
insurance; and (v) general commercial liability insurance, with a minimum limit
of $1,000,000 per occurrence and a minimum umbrella limit of $1,000,000, for a
total minimum combined general liability and umbrella limit of $2,000,000
(together with such additional umbrella coverage as Landlord may reasonably
require) for property damage, personal injuries, bodily injuries, or deaths of
persons occurring in or about the Premises (vi) pollution liability insurance
covering any hazardous material or chemicals. Landlord may from time to time
require reasonable increases in any such limits. The general commercial
liability policy shall name Landlord as an additional insured, insure on an
occurrence and not a claims-made basis, be issued by insurance companies which
have an A.M. Best rating of A- or better, not be cancelable unless 30 days prior
written notice shall have been given to Landlord, contain a contractual
liability endorsement and provide primary coverage to Landlord (any policy
issued to Landlord providing duplicate or similar coverage shall be deemed
excess over Tenant's policies). Such policies or certificates thereof shall be
delivered to Landlord by Tenant prior to the Commencement Date and upon each
renewal of said insurance.
The all risk property insurance shall include a waiver of subrogation
by the insurers and a waiver of all rights based upon an assignment from its
insured, against Landlord or Tenant, their officers, directors, employees,
managers, agents and invitees , in connection with any loss or damage thereby
insured against. Neither party nor its officers, directors, employees, managers,
agents, invitees or contractors shall be liable to the other for loss or damage
caused by any risk coverable by all risk property insurance, and each party
waives any claims against the other party, and its officers, directors,
employees, managers, agents, invitees and contractors for such loss or damage.
The failure of a party to insure its property shall not void this waiver.
Landlord and its agents, employees and contractors shall not be liable for, and
Tenant hereby waives all claims against such parties for, business interruption
and losses occasioned thereby sustained by Tenant or any person claiming through
Tenant resulting from any accident or occurrence in or upon the Premises from
any cause whatsoever, except to the extent set forth in Section 12 below
provided the indemnification provisions of Section 12 do not void the waiver of
subrogation.
10. RESTORATION. If at any time during the Lease Term the Premises are
damaged by a fire or other casualty, Landlord shall notify Tenant within thirty
(30) days after such damage as to the amount of time Landlord reasonably
estimates it will take to restore the Premises. If the restoration time is
estimated to exceed two hundred ten (210) days, then either Landlord or Tenant
may elect to terminate this Lease upon written notice to the other party given
no later than thirty (30) days after Landlord's notice. If neither party elects
to terminate this Lease or if Landlord estimates that restoration will take two
hundred ten (210) days or less, then Landlord shall promptly restore the
Premises excluding the Tenant-Made Alterations or Trade Fixtures and
improvements paid for by Tenant whether or not installed by Landlord, subject to
receipt of sufficient insurance proceeds, delays arising from the collection of
insurance proceeds or from Force Majeure events. Tenant at Tenant's expense
shall promptly perform, subject to delays arising from the collection of
insurance proceeds, or from Force Majeure events, all repairs or restoration not
required to be done by Landlord and shall promptly reenter the Premises and
commence doing business in accordance with this Lease. Tenant shall pay to
Landlord with respect to any damage to the Premises the amount of the deductible
under Landlord's insurance policy within ten (10) days after presentment of
Landlord's invoice. Rent shall not xxxxx during the period of restoration.
11. CONDEMNATION. If the whole or any part of the Premises shall be
taken for public or quasi-public use by a governmental or other authority having
the power of eminent domain or shall be conveyed to such authority in lieu of
such taking, and if such taking or conveyance shall cause the remaining part of
the Premises to be untenantable or inadequate for use by Tenant for the purpose
for which they were leased, then either Landlord or Tenant may, at their
respective
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option, terminate this Lease as of the date Tenant is required to surrender
possession of the Premises by giving written notice of such termination to the
other party. If a part of the Premises shall be taken or conveyed but the
remaining part is tenantable and adequate for Tenant's use, then this Lease
shall be terminated as to the part taken or conveyed as of the date Tenant
surrenders possession; Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part not taken or conveyed
tenantable; and the rent shall be reduced in proportion to the part of the
Premises so taken or conveyed. However, if Landlord reasonable determines the
compensation awarded (reduced by any application thereof by Landlord's mortgage
to its mortgage) is insufficient to restore the Premises, Landlord shall have
the option to terminate this Lease as of the date Tenant is required to
surrender possession of the Premises by giving Tenant written notice of such
termination. All compensation awarded for such taking or conveyance shall be the
property of Landlord without any deduction therefrom for any present or future
estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and
interest in and to any such award. However, Tenant shall have the right to
recover from such authority, but not from Landlord, such compensation as may be
awarded to Tenant on account of moving and relocation expenses and depreciation
to and removal of Tenant's property to the extent such compensation does not
reduce Landlord's award.
12. INDEMNIFICATION. Tenant will protect, indemnify and save harmless
Landlord from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Landlord by reason of the occurrence or existence of any of the
following during the Lease Term or thereafter, except to the extent, and only to
the extent, caused by the negligence or willful misconduct of Landlord or its
agents, employees or contractors: (a) ownership of the Premises or any interest
therein or receipt of any rent or other sum therefrom, (b) any accident, injury
to or death of persons or loss of or damage to property occurring on or about
the Premises or any part thereof or occurring on or about the adjoining
sidewalks, curbs, loading docks, stairs, vaults and vault space, if any, streets
or ways as a result of or in connection with the other party's use or occupancy
of the Premises, (c) any occupancy, use, nonuse or condition of the Premises or
any part thereof or any use, nonuse or condition of the adjoining sidewalks,
curbs, vaults and vault space, if any, streets or ways resulting from the other
party's use or occupancy of the Premises, (d) any failure on the part of the
other party to perform or comply with any of the terms of this Lease, or (e)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Premises or any part thereof. Landlord will protect,
indemnify and save harmless Tenant from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) imposed
upon or incurred by or asserted against Tenant to the extent, and only to the
extent, caused by the negligence or willful misconduct of Landlord or its
agents, employees or contractors. In case any action, suit or proceeding is
brought against a party entitled to indemnification hereunder, the other party,
upon request, and at that other party's expense, shall resist and defend such
action, suit or proceeding or cause the same to be resisted and defended by
counsel designated and reasonably approved by the parties. The obligations of
the parties under this Paragraph shall survive any termination of this Lease.
The furnishing of insurance required hereunder shall not be deemed to limit
either party's obligations under this Paragraph.
13. TENANT'S REPAIRS. Tenant, at its expense, shall promptly make all
repairs and replacements of every kind and nature, whether foreseen or
unforeseen, which may be required to be made upon or in connection with the
Premises. Landlord shall not be required to make any repair, whether foreseen or
unforeseen, or to maintain any of the Premises in any way. Any repair or
replacement shall be performed at the Tenant's expense by contractors approved
by Landlord, or at Landlord's option, by Landlord. Such repair and replacements
include capital expenditures and repairs whose benefit extend beyond the Lease
Term. Heating, ventilation and air conditioning systems and other mechanical and
building systems serving the Premises shall be maintained at Tenant's expense
pursuant to maintenance service contracts entered into by Tenant. The scope of
services and contractors under such maintenance contracts shall be reasonably
approved by Landlord. If Tenant fails to perform any repair or replacement for
which it is responsible, Landlord may perform such work and be reimbursed by
Tenant within ten (10) days after demand therefor. Subject to the Restoration
and Condemnation Paragraphs, Tenant shall bear the full cost of any repair or
replacement to any part of the Premises that results from damage caused by
Tenant, its agents, contractors, or invitees and any repair that benefits only
the Premises. If any present or future improvements to the Premises are made or
authorized to be
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made by Tenant, its agents or employees, and such improvements shall encroach
upon any property or street adjacent to the Premises, or shall violate any
agreement or condition contained in any restrictive covenant affecting or
applicable to the Premises, or shall impair the rights of others under any
easement or right-of-way to which the Premises are subject, then upon request of
Landlord, Tenant, at its cost and expense, shall take such action as shall be
necessary to remove such encroachments or end such violation or impairment.
Notwithstanding the foregoing, Tenant shall not be required to remove any such
encroachments if Tenant has or obtains such easements, licenses or similar
rights as may be necessary to permit such encroachments to remain.
14. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. Tenant may make
alterations and improvements to the Premises that are not structural and will
not diminish the value of the Premises at the expiration of the Lease Term. Any
alterations or improvements made by or on behalf of Tenant to the Premises
("Tenant-Made Alterations") shall become part of the Premises. Tenant shall
cause, at its expense, all Tenant-Made Alterations to comply with insurance
requirements and with Legal Requirements and shall construct at its expense any
alteration or modification required by Legal Requirements as a result of any
Tenant-Made Alterations. All "Tenant Made Alterations" shall be made in
accordance with all applicable laws, regulations and building codes, in a good
and workmanlike manner and of quality equal to or better than the original
construction of the Premises. Tenant, at its own cost and expense and without
Landlord's prior approval, may erect such shelves, bins, machinery and trade
fixtures (collectively "Trade Fixtures") in the ordinary course of its business
provided that such items do not alter the basic character of the Premises, do
not overload or damage the Premises, and may be removed without injury to the
Premises, and the construction, erection, and installation thereof complies with
all Legal Requirements and with Landlord's requirements set forth above. Upon
Landlord's election, Tenant, at its expense, shall remove its Trade Fixtures and
shall immediately repair any damage caused by such removal, prior to the
expiration or earlier termination of this Lease. Notwithstanding anything in the
foregoing, implied or expressed to the contrary, Landlord has not consented to
any work that would permit the making of any claim against Landlord or the
Premises in respect thereof.
15. SIGNS. All exterior signs shall be subject to Landlord's reasonable
approval and conform in all respects to Landlord's reasonable requirements and
to all applicable government regulations.
16. ASSIGNMENT AND SUBLETTING. Without Landlord's prior written
consent, Tenant shall not assign this Lease or sublease the Premises or any part
thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any
concession or license within the Premises and any attempt to do any of the
foregoing shall be void and of no effect. For purposes of this Paragraph, a
direct or indirect transfer of substantially all of the ownership interests or
the control of Tenant shall be deemed an assignment of this Lease. Landlord
agrees not to unreasonably withhold consent to a transfer if the transferee is a
subsidiary or parent company of Tenant and such transferee has a financial
condition, creditworthiness and business reputation equal to or greater than
that of Tenant's. Tenant shall reimburse Landlord for all of Landlord's
reasonable out-of-pocket expenses in connection with any assignment or sublease.
Upon Landlord's receipt of Tenant's written notice of a desire to assign or
sublet the Premises, or any part thereof, Landlord may, by giving written notice
to Tenant within thirty (30) days after receipt of Tenant's notice, terminate
this Lease as of the date specified in Tenant's notice for the commencement of
the proposed assignment or sublease. Notwithstanding any assignment or
subletting, Tenant and any guarantor or surety of Tenant's obligations under
this Lease shall at all times remain fully responsible and liable for the
payment of the Rent and for compliance with all of Tenant's other obligations
under this Lease (regardless of whether Landlord's approval has been obtained
for any such assignments or sublettings). In the event that the rent due and
payable by a sublessee or assignee (or a combination of the rental payable under
such sublease or assignment plus any bonus or other consideration therefor or
incident thereto) exceeds the Rent payable under this Lease, then Tenant shall
be bound and obligated to pay Landlord as Additional Rent hereunder all such
excess rental and other excess consideration within ten (10) days following
receipt thereof by Tenant. Without in any way limiting Landlord's right to
refuse to consent to any assignment or subletting of this Lease, Landlord
reserves the right to refuse to give such consent if in Landlord's opinion (i)
the Premises may be in any way adversely affected; (ii) the business reputation
of the proposed assignee or subtenant is unacceptable; or (iii) the financial
worth or creditworthiness of the proposed assignee or subtenant is less than
that of Tenant.
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If this Lease be assigned or if the Premises be subleased (whether in
whole or in part) or in the event of the mortgage, pledge or hypothecation of
Tenant's leasehold interest or grant of any concession or license within the
Premises or if the Premises be occupied in whole or in part by anyone other than
Tenant, then upon a default by Tenant hereunder Landlord may collect Rent from
the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold
interest was hypothecated, concessionee or licensee or other occupant and,
except to the extent set forth in the preceding Paragraph, apply the amount
collected to the Rent payable hereunder; and all such rentals collected by
Tenant shall be held in trust for Landlord and immediately forwarded to
Landlord. No such transaction or collection of Rent for application thereof by
Landlord, however, shall be deemed a waiver of these provisions or a release of
Tenant from the further performance by Tenant of its covenants, duties or
obligations hereunder.
17. INSPECTION AND ACCESS. Landlord and its agents, representatives and
contractors may enter the Premises during Tenant's normal business hours or in
the event of an emergency to inspect the Premises and to make such repairs as
may be required or permitted pursuant to this Lease and for any other business
purpose. Landlord and Landlord's representatives may enter the Premises during
business hours for the purpose of showing the Premises to prospective purchasers
and, during the last year of the Lease Term, to prospective tenants. Landlord
may erect a suitable sign on the Premises stating the Premises are available to
let or for sale. Landlord may grant easements, make public dedications,
designate common areas and create restrictions on or about the Premises,
provided that no such easement, dedication, designation or restriction
materially interferes with Tenant's use or occupancy of the Premises. At
Landlord's request, Tenant shall execute such instruments as may be necessary
for such easements, dedications or restrictions.
18. SURRENDER. Upon the expiration of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the Premises
to Landlord in the same condition as received, broom clean, ordinary wear and
tear and casualty loss and condemnation covered by the Restoration and
Condemnation Paragraphs excepted. Any Trade Fixtures, Tenant-Made Alterations
and property not so removed by Tenant as permitted or required herein shall be
deemed abandoned and may be stored, removed, and disposed of by Landlord at
Tenant's expense, and Tenant waives all claims against Landlord for any damages
resulting from Landlord's retention and disposition of such property. All
obligations of Tenant hereunder not fully performed as of the termination of the
Lease Term shall survive the termination of the Lease Term, including without
limitation, indemnity obligations, and obligations concerning the condition and
repair of the Premises.
19. HOLDING OVER. If Tenant retains possession of the Premises after
the termination of the Lease Term, unless otherwise agreed in writing, such
possession shall be subject to immediate termination by Landlord at any time,
and all of the other terms and provisions of this Lease (excluding any expansion
or renewal option or other similar right or option) shall be applicable during
such holdover period, except that Tenant shall pay Landlord from time to time,
upon demand, as Base Rent for the holdover period, an amount equal to double the
Base Rent in effect on the termination date, computed on a monthly basis for
each month or part thereof during such holding over. All other payments shall
continue under the terms of this Lease. In addition, Tenant shall be liable for
all damages incurred by Landlord as a result of such holding over. No holding
over by Tenant, whether with or without consent of Landlord, shall operate to
extend this Lease except as otherwise expressly provided.
20. EVENTS OF DEFAULT. Each of the following events shall be an event
of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base
Rent, Additional Rent or any other payment required herein when due;
provided that no more than two (2) times per twelve (12) month period,
Landlord shall give Tenant written notice of such Event of Default and
Tenant may cure such Event of Default by tendering the delinquent
payment within five (5) days of the receipt of Landlord's notice.
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action
seeking to have an order for relief entered on its behalf as a debtor
or adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it
or its debts or seeking
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appointment of a receiver, trustee, custodian or other similar official
for it or for all or of any substantial part of its property
(collectively a "proceeding for relief"); (C) become the subject of any
proceeding for relief which is not dismissed within sixty (60) days of
its filing or entry; or (D) die or suffer a legal disability (if
Tenant, guarantor, or surety is an individual) or be dissolved or
otherwise fail to maintain its legal existence (if Tenant, guarantor or
surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall expire
or shall be reduced or materially changed, except, in each case, as
permitted in this Lease.
(iv) Tenant shall not occupy or shall vacate the Premises
or shall fail to continuously operate its business at the Premises for
the Permitted Use set forth herein, whether or not Tenant is in
monetary or other default under this Lease.
(v) Tenant shall attempt or there shall occur any
assignment, subleasing or other transfer of Tenant's interest in or
with respect to this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon
the Premises in violation of this Lease within thirty (30) days after
any such lien or encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Paragraph,
and except as otherwise expressly provided therein, such default shall
continue for more than thirty (30) days after Landlord shall have given
Tenant written notice of such default.
21. LANDLORD'S REMEDIES. Upon each occurrence of an Event of Default
and so long as such Event of Default shall be continuing, Landlord may at any
time thereafter at its election terminate this Lease or Tenant's right of
possession (but Tenant shall remain liable as hereinafter provided), and/or
pursue any other remedies at law or in equity. Upon the termination of this
Lease or termination of Tenant's right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to reenter the Premises
by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and equipment
at the Premises.
If Landlord terminates this Lease as a result of an Event of Default,
Landlord may recover from Tenant the sum of: (i) all Base Rent, Additional Rent
and all other amounts accrued hereunder to the date of such termination; (ii)
the cost of reletting the whole or any part of the Premises, including without
limitation, brokerage fees and/or leasing commissions incurred by Landlord,
costs of removing and storing Tenant's or any other occupant's property, costs
of repairing, altering, remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant or tenants; (iii) all reasonable expenses
incurred by Landlord in pursuing its remedies, including reasonable attorneys'
fees and court costs; and (iv) the then present value of the Base Rent
Additional Rent and other amounts payable by Tenant under this Lease as would
otherwise have been required to be paid by Tenant to Landlord during the period
following the termination of this Lease measured from the date of such
termination to the expiration date stated in this Lease. Such present value
shall be calculated at a discount rate equal to the 90-day U. S. Treasury xxxx
rate at the date of such termination.
If Landlord terminates Tenant's right of possession (but not this
Lease), Landlord may, but shall be under no obligation to, relet the Premises
for the account of Tenant for such rent and upon such terms as shall be
satisfactory to Landlord without thereby releasing Tenant from any liability
hereunder and without demand or notice of any kind to Tenant. For the purpose of
such reletting Landlord is authorized to make any repairs, changes, alterations,
or additions in or to the Premises as Landlord deems reasonably necessary or
desirable without notice to Tenant. If the Premises are not relet, then Tenant
shall pay to Landlord as damages a sum equal to the amount of the Rent reserved
in this Lease for such period or periods, plus the cost of recovering possession
of the Premises (including attorneys' fees and costs of suit), the unpaid Base
Rent, Additional Rent and
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other amounts accrued hereunder at the time from time to time. Notwithstanding
any such reletting without termination, Landlord may at any time thereafter
elect in writing to terminate this Lease for such previous breach.
Any law, usage, or custom to the contrary notwithstanding, Landlord
shall have the right at all times to enforce the provisions of this Lease in
strict accordance with the terms hereof. The failure of Landlord at any time to
enforce its rights under this Lease strictly in accordance with same shall not
be construed as having created a custom in any way or manner contrary to the
specific terms, provisions, and covenants of this Lease or as having modified
the same. Tenant and Landlord further agree that forbearance or waiver by
Landlord to enforce its rights pursuant to this Lease or at law or in equity,
shall not be a waiver of Landlord's right to enforce one or more of its rights
in connection with any subsequent default. A receipt by Landlord of rent or
other payment with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach, and no waiver by Landlord of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Landlord. To the greatest extent permitted by law, Tenant waives the
service of notice of Landlord's intention to re-enter as provided for in any
statute, or to institute legal proceedings to that end, and also waives all
right of redemption in case Tenant shall be dispossessed by a judgment or by
warrant of any court or judge. The terms "enter," "reenter," "entry" or
"re-entry," as used in this Lease, are not restricted to their technical legal
meanings. Any reletting of the Premise shall be on such terms and conditions as
Landlord in its sole discretion may determine (including, without limitation, a
term different than the remaining Lease Term, rental concessions, alterations
and repair of the Premises, lease of less than the entire Premises to any tenant
and leasing any or all other portions of the Project before reletting the
Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises or
collect rent due in respect of such reletting.
22. LIMITATION OF LIABILITY OF LANDLORD. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within sixty (60) days after written notice from Tenant specifying
such failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of sixty (60) days, then after such period of
time as is reasonably necessary). All obligations of Landlord hereunder shall be
construed as covenants, not conditions; and, Tenant may not terminate this Lease
for breach of Landlord's obligations hereunder. All such obligations of Landlord
under this Lease will be binding upon Landlord only during the period of its
ownership of the Premises and not thereafter. The term "Landlord" in this Lease
shall mean only the owner, for the time being of the Premises, and in the event
of the transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon each
new owner for the duration of such owner's ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Premises, and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets of
Landlord.
23. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL
BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
24. SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the lien of
any mortgage, now existing or hereafter created on or against the Premises, and
all amendments, restatements, renewals, modifications, consolidations,
refinancing, assignments and extensions thereof, without the necessity of any
further instrument or act on the part of Tenant. Tenant agrees, at the election
of the holder of any such mortgage, to attorn to any such holder. Tenant agrees
upon demand to execute, acknowledge and deliver such instruments, confirming
such subordination and such instruments of attornment as shall be requested by
any such holder; provided that such instruments include non-disturbance
provisions whereby the mortgagee agrees that if there is no Event of Default and
the mortgagee succeeds to the interest of Landlord by foreclosure of the
mortgage, deed-in-lieu thereof of any other action or proceeding taken or
instituted under or in connection with the mortgage, Tenant's rights and
privileges under the Lease and its use, possession and enjoyment of
10
the Premises demised by the Lease shall not be disturbed, interfered with or
terminated by reason of such foreclosure, deed-in-lieu thereof or other action
or proceeding, and the Lease shall remain in full force and effect as a direct
indenture of lease between the mortgagee and Tenant. Tenant hereby appoints
Landlord attorney in fact for Tenant irrevocably (such power of attorney being
coupled with an interest) to execute, acknowledge and deliver any such
instrument and instruments for and in the name of the Tenant and to cause any
such instrument to be recorded. Notwithstanding the foregoing, any such holder
may at any time subordinate its mortgage to this Lease, without Tenant's
consent, by notice in writing to Tenant, and thereupon this Lease shall be
deemed prior to such mortgage without regard to their respective dates of
execution, delivery or recording and in that event such holder shall have the
same rights with respect to this Lease as though this Lease had been executed
prior to the execution, delivery and recording of such mortgage and had been
assigned to such holder. The term "mortgage" whenever used in this Lease shall
be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the "holder" of a mortgage shall be deemed to
include the beneficiary under a deed of trust.
25. MECHANIC'S LIENS. Tenant has no express or implied authority to
create or place any lien or encumbrance of any kind upon, or in any manner to
bind the interest of Landlord or Tenant in the Premises or to charge the Rent
payable hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any construction
or repairs. Tenant covenants and agrees that it will pay or cause to be paid all
sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises and
that it will indemnify and hold Landlord harmless from all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold estate
or against the interest of Landlord in the Premises or under this Lease. Tenant
shall give Landlord immediate written notice of the placing of any lien or
encumbrance against the Premises and cause such lien or encumbrance to be
discharged within thirty (30) days of the filing or recording thereof; provided,
however, Tenant may contest such liens or encumbrances as long as such contest
prevents foreclosure of the lien or encumbrance and Tenant causes such lien or
encumbrance to be bonded or insured over in a manner satisfactory to Landlord
within such 30 day period.
26. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time, within ten
(10) business days after request of Landlord, to execute and deliver to
Landlord, or Landlord's designee, any estoppel certificate requested by
Landlord, stating that this Lease is in full force and effect, the date to which
Rent has been paid, that Landlord is not in default hereunder (or specifying in
detail the nature of Landlord's default), the expiration date of this Lease and
such other matters pertaining to this Lease as may be requested by Landlord.
Tenant's obligation to furnish each estoppel certificate in a timely fashion is
a material inducement for Landlord's execution of this Lease. No cure or grace
period provided in this Lease shall apply to Tenant's obligations to timely
deliver an estoppel certificate.
27. ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Materials used in
connection with the Permitted Use and Hazardous Materials contained in products
used by Tenant in de minimis quantities for ordinary cleaning purposes in
compliance with Environmental Requirements, Tenant shall not permit or cause any
party to bring any other Hazardous Materials upon the Premises or transport,
store, use, generate, manufacture or release any Hazardous Material in or about
the Premises without Landlord's prior written consent. Tenant, at its sole cost
and expense, shall operate its business in the Premises in strict compliance
with all Environmental Requirements, and shall remediate in a manner
satisfactory to Landlord any Hazardous Materials released on, under, to or from
the Premises by Tenant, its agents, employees, contractors, subtenants or
invitees. Tenant shall complete and certify to disclosure statements as
requested by Landlord from time to time relating to Tenant's transportation,
storage, use, generation, manufacture, or release of Hazardous Materials on the
Premises. The term "Environmental Requirements" means all applicable past,
present and future statutes, regulations, ordinances, rules, codes, judgments,
orders or other similar enactments of any governmental authority or agency
regulating or relating to health, safety or environmental conditions on, under,
or about the Premises or the environment, including without limitation, the
following: the Comprehensive Environmental Response, Compensation and Liability
Act; the Resource and Conservation Recovery Act; and all state and local
counterparts thereto, and any regulations or policies promulgated or issued
thereunder. The term "Hazardous Material(s)" means and includes (i) any
substance, material, waste, pollutant or contaminant listed or defined
11
as hazardous or toxic under any Environmental Requirements; (ii) asbestos; (iii)
petroleum, including crude oil or any fraction thereof; and (iv) natural gas or
synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas). As defined in Environmental Requirements, Tenant is and shall be deemed to
be the "operator" of Tenant's "facility" and the "owner" of all Hazardous
Materials brought on the Premises by Tenant, its agents, employees, contractors
or invitees, and the wastes, by-products, or residues generated, resulting or
produced therefrom.
Tenant shall indemnify, defend, and hold Landlord harmless from and
against any and all losses (including, without limitation, diminution in value
of the Premises and loss of rental income from the Premises), claims, demands,
actions, suits, damages (including, without limitation, punitive damages),
expenses (including, without limitation, remediation, removal, repair,
corrective action or cleanup expenses), and costs (including, without
limitation, actual attorneys' fees, consultant fees or expert fees and
including, without limitation removal or management of any asbestos brought into
the Premises or disturbed in breach of the requirements of this Paragraph,
regardless of whether such removal or management is required by law) which are
brought or recoverable against, or suffered or incurred by Landlord as a result
of any release of Hazardous Materials for which Tenant is obligated to remediate
as provided above or any other breach of the requirements under this Paragraph
by Tenant, its agents, employees, contractors, subtenants, assignees or
invitees, regardless of whether Tenant had knowledge of such noncompliance. The
obligations of Tenant under this Paragraph shall survive any termination of this
Lease.
Landlord shall have access to, and a right to perform inspections and
tests of, the Premises to determine Tenant's compliance with Environmental
Requirements, its obligations under this Paragraph, or the environmental
condition of the Premises. Access shall be granted to Landlord upon Landlord's
prior notice to Tenant and at such times so as to minimize, so far as may be
reasonable under the circumstances, any disturbance to Tenant's operations. Such
inspections and tests shall be conducted at Landlord's expense, unless such
inspections or tests reveal that Tenant has not complied with any Environmental
Requirement, in which case Tenant shall reimburse Landlord for the reasonable
cost of such inspection and tests. Landlord's receipt of or satisfaction with
any environmental assessment in no way waives any rights that Landlord holds
against Tenant.
28. FORCE MAJEURE. Neither party shall be held responsible for delays
in the performance of its obligations hereunder, other than the payment of money
owed, when caused by strikes, lockouts, unusual weather, labor disputes, acts of
God, inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls,
delay in issuance of permits, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes beyond the reasonable
control of such party ("Force Majeure"). Notwithstanding anything to the
contrary herein, Force Majeure shall not relieve Tenant from its obligation to
pay Rent.
29. ENTIRE AGREEMENT. This Lease constitutes the complete agreement of
Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties hereto.
30. SEVERABILITY. Each provision contained in this Lease shall be
construed to be separate and independent and the breach of any provision by
Landlord shall not discharge or relieve Tenant from Tenant's obligation to
observe and perform each of its obligations under this Lease. If any clause or
provision of this Lease is illegal, invalid or unenforceable under present or
future laws, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby. It is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
31. BROKERS. Tenant represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than Xxxxx
Property Group, Inc. and the broker, if any, set forth on
12
the first page of this Lease. Tenant agrees to indemnity and hold Landlord
harmless from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction.
32. RIGHT OF FIRST OFFER. In the event Landlord desires to sell its fee
estate in the entire Premise and provided that no Event of Default has occurred
under this Lease that has not been cured by Tenant, Tenant shall have a one time
(subject to the repeat provision set forth below) right of first offer to
purchase the Premises ("Right of First Offer"). The Right of First Offer shall
operate in the following manner: (i) Landlord shall provide written notice to
Tenant that Landlord desires to sell its fee estate in the entire Premises,
which notice shall include the price and other material terms applicable to
Landlord's offer to sell the Premises (the "Notice of Offer"); (ii) Tenant shall
have fifteen (15) days to notify Landlord whether Tenant elects to purchase the
Premises under the exact terms contained in the Notice of Offer, and Tenant's
failure to respond during such fifteen (15) day period constitutes Tenant's
waiver of its Right of First Offer; and (iii) if Tenant has waived its Right of
First Offer, then Landlord may offer to sell the Premises to third parties
provided that the terms offered to third parties are not materially different
from those contained in the Notice of Offer, the selling price is no less than
eighty-five percent (85%) of the price contained in the Notice of Offer and a
purchase agreement is executed within one (1) year of the Notice of Offer. If
Landlord offers the Premises to third parties and the terms are materially
different from those contained in the Notice of Offer or the selling price is
less than eighty-five percent (85%) of the price contained in the Notice of
Offer, then Landlord must repeat the Right of First Offer procedure outlined
above. In the event Tenant elects to purchase the Premises in accordance with
the terms of the Notice of Offer, the purchase price as set forth in the Notice
of Offer shall be paid by Tenant to Landlord in cash, within thirty (30) days
after Tenant's acceptance of the Notice of Offer terms. Further, in the event
that Tenant has waived its one time (subject to the repeat provision set forth
above) Right of First Offer and upon Landlord's request, Tenant shall provide
within five (5) days of Landlord's request a written statement to Landlord and
any third parties designated by Landlord that Tenant waived its Right of First
Offer. This Right of First Offer is a one time (subject to the repeat provision
set forth above) right that shall expire upon Tenant's waiver or failure to
exercise such right.
33. MISCELLANEOUS.
(a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered Rent for all purposes
of this Lease.
(b) If and when included within the term "Tenant," as
used in this instrument, there is more than one person, firm
or corporation, each shall be jointly and severally liable for
the obligations of Tenant.
(c) All notices required or permitted to be given
under this Lease shall be in writing and shall be sent by a
reputable national overnight courier service, postage prepaid,
or by hand delivery addressed to the parties at their
addresses specified in the Basic Lease Terms and Information
section of this Lease. Either party may by notice given
aforesaid change its address for all subsequent notices.
Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Except as otherwise expressly provided in this
Lease or as otherwise required by law, Landlord retains the
absolute right to withhold any consent or approval.
(e) At Landlord's request, Tenant shall furnish
Landlord with true and complete copies of its most recent
annual and quarterly financial statements prepared by Tenant
or Tenant's accountants and any other financial information or
summaries that Tenant typically provides to its lenders or
shareholders.
(f) This Lease shall not be filed in any public
record. Upon the request of either party, the parties shall
execute and file a memorandum of lease, which shall not
disclose any of the financial terms of this Lease but shall
disclose the Lease Term.
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(g) The normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this
Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this
Lease shall have no binding force or effect, shall not
constitute an option for the leasing of the Premises, nor
confer any right or impose any obligations upon either party
until execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be
held and construed to include any other gender, and words in
the singular number shall be held to include the plural,
unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define,
limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the
interpretation of this Lease.
(j) Construction and interpretation of this Lease
shall be governed by the laws of the state in which the
Premises are located, excluding any principles of conflicts of
laws.
(k) Time is of the essence as to the performance of
Landlord and Tenant's obligations under this Lease.
(l) All exhibits and addenda attached hereto are
hereby incorporated into this Lease and made a part hereof. In
the event of any conflict between such exhibits or addenda and
the terms of this Lease, such exhibits or addenda shall
control.
(m) Landlord shall provide Tenant with a copy of the
final survey, title commitment and title exception documents
procured by Landlord during the development of the Premises.
(n) The parties acknowledge that this Lease is
contingent upon Landlord acquiring title to the land described
in EXHIBIT "A" and obtaining all necessary zoning, variances
and other authorizations and permits required to complete
Landlord's Work, including, but not necessarily limited to,
grading and zoning approvals, location improvement permits,
variances, special exception permits, building permits, sign
permits and curb-cut, driveway access or access control
permits.
(o) As partial consideration for this Lease, Landlord
requires that Tenant's parent company, Blue Rhino Corporation,
a Delaware corporation, guarantee the full performance of this
Lease to be kept and performed by Tenant, including the
payment of all Rent and other charges to accrue thereunder.
(p) Tenant shall have the option to extend
("Extension Option") the Lease Term for three (3) periods of
five (5) years each ("Extension Period") upon fulfillment of
all of the following terms and conditions: (a) written notice
is given by Tenant to Landlord not later than one hundred and
eighty (180) days prior to the expiration of the then current
Lease Term that Tenant elects to exercise such Extension
Option; (b) Tenant is not, at the time of the exercise of such
Extension Option, in default under any term or condition
hereof and there have been no more than two (2) Events of
Default during the Lease Term of the Lease; (c) this Lease has
not been terminated during the Term; (d) it is understood and
agreed that this Extension Option is personal to Tenant and is
not transferable; in the event of any assignment or subleasing
of any or all of the Premises said Extension Option shall be
null and void; (e) not later than sixty (60) days prior to the
expiration of the then current Lease Term, the parties have
mutually agreed upon Base Rent for the Extension Period, which
shall be at the greater of (i) two and one-half percent (2.5%)
more than the Base Rent of the immediately proceeding month at
the time of extension with annual Base Rent increases of two
and one-half percent (2.5%) and (ii) the then current market
rate; and (f) not later than sixty (60) days prior to
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the expiration of the then current Lease Term, the parties
have executed an amendment hereto specifying such Base Rent.
(q) The initial Lease Term and the Extension Period,
if any, are collectively referred to herein as the "Lease
Term" once an Extension Option has been exercised. All terms,
covenants, conditions and provisions hereof applicable to the
initial Lease Term, except with respect to the amount of Base
Rent, shall apply with like force and effect to the Extension
Period, except where inapplicable or where the context
otherwise indicates.
(r) This Lease may be executed in two (2) or more
counterparts and via facsimile, each of which shall be deemed
an original, but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first above written.
TENANT: LANDLORD:
PLATINUM PROPANE OF CHICAGO, LLC BR PARTNERS TWO, LLC
By: Blue Rhino Corporation, Manager By: /s/ Xxxxxxx X. Xxxxxx
By: /s/ Xxxx Xxxxxxxxx Printed: Xxxxxxx X. Xxxxxx
Printed: Xxxx Xxxxxxxxx Title: a Manager
Title: Chief Financial Officer
Execution Date: 7/17/03 Execution Date: 8/14/03
LIST OF EXHIBITS
EXHIBIT "A" -Premises with Site Plan and Building Elevations
EXHIBIT "B-1" -Scope of Work
EXHIBIT "B-2" -Schedule of Preliminary Design Approvals
EXHIBIT "C" -Acceptance and Rent Commencement Agreement
15
