EXHIBIT 10.16
BUSINESS LEASE
1. BASIC TERMS. This SECTION 1 contains the Basic Terms of this
Lease between Landlord and Tenant, named below. Other Sections of the Lease
referred to in this SECTION 1 explain and define the Basic Terms and are to be
read in conjunction with the Basic Terms.
1.1. Date of Lease: August 25, 2003
1.2. Landlord: FIRST INDUSTRIAL DEVELOPMENT SERVICES,
INC., A MARYLAND CORPORATION
1.3. Tenant: ASSET ACCEPTANCE, LLC, A DELAWARE LIMITED
LIABILITY COMPANY (0000 X. XXXXXXXXXX XXXX,
XXXXXXXXX, XX 33569)
1.4. Premises: Approximately 52,280 rentable square feet
included in the BUILDING (as hereinafter defined), TO
BE CONSTRUCTED ON THE PROPERTY.
1.5. Property: See EXHIBIT A-1, A-2 AND A-3.
1.6. Lease Term: FIVE (5) years and FOUR (4) months
("TERM"), commencing FEBRUARY 1, 2004 ("COMMENCEMENT
DATE") and ending MAY 31, 2009, subject to SECTION
2.3 below, ("EXPIRATION DATE").
1.7. Permitted Uses: (See SECTION 4.1) GENERAL OFFICE
1.8. Tenant's Guarantor: (if none, so state): NONE
1.9. Brokers: (See SECTION 23; if none, so state)
(A) Tenant's Broker: XXXXXX & ASSOCIATES,
L.L.C. / XXXXXXX & ASSOCIATES LLC
(B) Landlord's Broker: XXXXXXX & WAKEFIELD
1.10. Security/Damage Deposit: (See SECTION 1.1) NONE
1.11. Vehicle Parking Ratio Allocated Tenant: (See Section
4) NINE (9) spaces:1,000 square feet leased
1.12. Initial year, monthly base rent (SEE SECTION 2.2):
$42,216.10
1.13. Initial Estimated Additional Rent Payable by Tenant:
(SEE SECTION 3) $9,541.10 per month
1.14. Tenant's Proportionate Share: 100%
2. LEASE OF PREMISES; RENT.
2.1. LEASE OF PREMISES FOR LEASE TERM. Landlord hereby
leases the Premises to Tenant, and Tenant hereby
rents the Premises from Landlord, for the Term and
subject to the conditions of this Lease.
2.2. TYPES OF RENTAL PAYMENTS. Tenant shall pay net base
rent to Landlord in monthly installments, in advance,
on the first day of each and every calendar month
during the Term of this Lease (the "BASE RENT") in
the amounts and for the periods set forth below:
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LEASE PERIOD MONTHLY BASE RENT
------------ -----------------
02-01-04 - 05-31-04 $ -0-
06-01-04 - 05-31-05 $42,216.10
06-01-05 - 05-31-06 $43,271.50
06-01-06 - 05-31-07 $44,353.29
06-01-07 - 05-31-08 $45,462.12
06-01-08 - 05-31-09 $46,598.68
Tenant shall also pay Tenant's Proportionate Share (as set forth in SECTION
1.14) of Operating Expenses (as hereinafter defined), Tenant's Proportionate
Share of any and all Reserve Expenses (as hereinafter defined) and any other
amounts owed by Tenant hereunder [collectively, "ADDITIONAL RENT"]. In the event
any monthly installment of Base Rent or Additional Rent, or both, is not paid
within 10 days of the date when due, a late charge in an amount equal to 5% of
the then delinquent installment of Base Rent and/or Additional Rent [the "LATE
CHARGE"; the Late Charge, Default Interest (as defined in SECTION 22.3 below),
Base Rent and Additional Rent shall collectively be referred to as "RENT"] to
FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC., 00 XXXXXXXXXX XXXXX, XXXXX 0000,
XXXXXXX XXXXXXXX 00000-0000 (or such other entity designated as Landlord's
management agent, if any, and if Landlord so appoints such a management agent,
the "AGENT"), or pursuant to such other directions as Landlord shall designate
in this Lease or otherwise in writing; PROVIDED HOWEVER, THAT ON THE FIRST TWO
INSTANCES OF ANY SUCH DELINQUENCY IN ANY CALENDAR YEAR, NO SUCH LATE CHARGE
SHALL APPLY IF PAYMENT IN FULL OF SUCH DELINQUENT INSTALLMENT IS RECEIVED BY
LANDLORD NOT LATER THAN THE FIFTH (5TH) DAY FOLLOWING DELIVERY BY LANDLORD TO
TENANT OF WRITTEN NOTICE OF SUCH DELINQUENCY (IT BEING ACKNOWLEDGED BY TENANT
THAT ANY SUCH ADDITIONAL FIVE (5) DAY NOTICE AND CURE PERIOD SHALL BE APPLICABLE
ONLY ON THE FIRST SUCH INSTANCE OF ANY SUCH DELINQUENT INSTALLMENT DURING ANY
GIVEN CALENDAR YEAR AND THAT LANDLORD SHALL OTHERWISE HAVE NO OBLIGATION TO
NOTIFY TENANT OF ANY SUCH DELINQUENCY).
2.3. COVENANTS CONCERNING RENTAL PAYMENTS. Tenant shall
pay all Rent promptly when due, without notice or demand, and without any
abatement, deduction or setoff, except as may otherwise be expressly and
specifically provided in this Lease. No payment by Tenant, or receipt or
acceptance by Agent or Landlord, of a lesser amount than the correct Rent shall
be deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or letter accompanying any payment be deemed an accord or
satisfaction, and Agent or Landlord may accept such payment without prejudice to
its right to recover the balance due or to pursue any other remedy available to
Landlord. If the Commencement Date occurs on a day other than the first day of a
calendar month, the Rent due for the first calendar month of the Term shall be
prorated on a per diem basis and paid to Landlord on the Commencement Date, and
the Term will be extended to terminate on the last day of the calendar month in
which the Expiration Date stated in SECTION 1.6 occurs.
3. OPERATING EXPENSES.
3.1. DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For
purposes of this Section and other relevant provisions of the Lease:
3.1.1. OPERATING EXPENSES. The term "Operating
Expenses" shall mean all costs and expenses paid or incurred with respect to the
ownership, repair, replacement, restoration, maintenance and operation of the
Property, including, without limitation, the following: (i) services provided
directly by employees of Landlord or Agent in connection with the operation,
maintenance or rendition of other services to or for the Property; (ii) to the
extent not separately metered, billed, or furnished, all charges for utilities
and services furnished to either or both of the Property and the Premises
(including, without limitation, the Common Areas [as hereinafter defined]),
together with any taxes on such utilities; (iii) all premiums for casualty,
workers' compensation, liability, boiler, flood and all other types of insurance
provided by Landlord and relating to the Property, all third party
administrative costs incurred in connection with the procurement and
implementation of such insurance policies, and
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all deductibles paid by Landlord pursuant to insurance policies required to be
maintained by Landlord under this Lease; (iv) the cost of all supplies, tools,
materials and equipment utilized in the ownership and operation of the Property,
and sales and other taxes thereon; (v) amounts charged (including, without
limitation, those costs and expenses set forth in Section 13.2(i) below) by any
or all of contractors, materialmen and suppliers for services, materials and
supplies furnished to Landlord in connection with any or all of the operation,
repair and maintenance of any part of the Property (together with a reasonable
overhead and administrative fee to Landlord), including, without limitation, the
structural elements of the Property and the Common Areas; (vi) reasonable
management fees to Landlord or Agent or other persons or management entities
actually involved in the management and operation of the Property (CAPPED AT 4%
OF RENT AND OPERATING EXPENSES); (vii) any capital improvements made by, or on
behalf of, Landlord to the Property that are either or both (a) designed to
reduce Operating Expenses and (b) required to keep the Property in compliance
with all governmental laws, rules and regulations applicable thereto, from time
to time, the cost of which capital improvements shall be reasonably amortized by
Landlord over the useful life of the improvement, in accordance with generally
accepted accounting principles; (viii) all professional fees incurred in
connection with the operation, management and maintenance of the Property; (ix)
Taxes, as hereinafter defined in Section 3.1.2; and (x) costs of maintaining
doors and windows in a watertight condition. In no event shall costs associated
with or resulting from the negligence or tortious conduct of Landlord, its
employees, agents, invitees, or assignees, including costs of defending such
actions, be included in the Operating Expenses. Notwithstanding the foregoing,
"Operating Expenses" shall exclude or have deducted from them, as the case may
be and shall be appropriate:
(i) commissions payable to any real-estate broker for the leasing
of space;
(ii) costs to cure LATENT defects in the workmanship or materials
of the IMPROVEMENTS TO BE CONSTRUCTED by the Landlord;
(iii) costs for any work performed by Landlord for and at the
expense of any other tenant;
(iv) interest or penalties for overdue payment of taxes to the
extent Landlord has received sufficient funds from tenants to pay such taxes;
(v) costs to Landlord for repairs made as a result of a casualty
or condemnation to the extent that the Landlord receives casualty and
condemnation proceeds from a third party;
(vi) attorney's fees, costs and other expenses incurred by Landlord
in connection with the enforcement of the obligations of any other tenant or
negotiation of disputes with existing or prospective tenants;
(vii) costs of tenant improvements performed by Landlord for other
tenants;
(viii) costs incurred by Landlord due to the violation by Landlord of
any of the terms and conditions of the Lease;
(ix) interest or other costs associated with Landlord's financing
of the property or any portion thereof;
(x) MANAGEMENT SALARIES, PROPERTY MANAGER'S SALARIES AND
ADMINISTRATION COSTS.
3.1.2. TAXES. The term "TAXES," as referred to in
SECTION 3.1.1(IX) above shall mean (i) all governmental taxes, assessments, fees
and charges of every kind or nature (other than Landlord's income
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taxes), whether general, special, ordinary or extraordinary, due at any time or
from time to time, during the Term and any extensions thereof, in connection
with the ownership, leasing, or operation of the Property, or of the personal
property and equipment located therein or used in connection therewith; and (ii)
any reasonable expenses incurred by Landlord in contesting such taxes or
assessments and/or the assessed value of the Property. For purposes hereof,
Taxes for any year shall be Taxes that are due for payment or paid in that year
rather than Taxes that are assessed, become a lien, or accrue during such year.
3.1.3. OPERATING YEAR. The term "OPERATING YEAR"
shall mean the calendar year commencing January 1st of each year (including the
calendar year within which the Commencement Date occurs) during the Term.
3.2. PAYMENT OF OPERATING EXPENSES. Tenant shall pay, as
Additional Rent and in accordance with the requirements of SECTION 3.3, Tenant's
Proportionate Share of the Operating Expenses as set forth in SECTION 3.3.
Additional Rent commences to accrue upon the Commencement Date. The Tenant's
Proportionate Share of Operating Expenses payable hereunder for the Operating
Years in which the Term begins and ends shall be prorated to correspond to that
portion of said Operating Years occurring within the Term. Tenant's
Proportionate Share of Operating Expenses and any other sums due and payable
under this Lease shall be adjusted upon receipt of the actual bills therefor,
and the obligations of this SECTION 3 shall survive the termination or
expiration of the Lease.
3.3. PAYMENT OF ADDITIONAL RENT. Landlord shall have the
right to reasonably estimate the Operating Expenses for each Operating Year.
Upon Landlord's or Agent's WRITTEN notice to Tenant of such estimated amount,
Tenant shall pay, on the first day of each month during that Operating Year, an
amount (the "ESTIMATED ADDITIONAL RENT") equal to the estimate of the Tenant's
Proportionate Share of Operating Expenses divided by 12 (or the fractional
portion of the Operating Year remaining at the time Landlord delivers its
WRITTEN notice of the estimated amounts due from Tenant for that Operating
Year). FOLLOWING THE END OF EACH OPERATING YEAR, LANDLORD SHALL DELIVER TO
TENANT A STATEMENT OF ACTUAL OPERATING EXPENSES FOR SUCH OPERATING YEAR (EACH,
AN "OPERATING EXPENSES STATEMENT"). If the aggregate amount of Estimated
Additional Rent actually paid by Tenant during any Operating Year is less than
Tenant's actual ultimate liability for Operating Expenses for that particular
Operating Year AS SHOWN ON THE APPLICABLE OPERATING EXPENSES STATEMENT, Tenant
shall pay the deficiency within 30 days of Landlord's written demand therefor.
If the aggregate amount of Estimated Additional Rent actually paid by Tenant
during a given Operating Year exceeds Tenant's actual liability for such
Operating Year, AS SHOWN ON THE APPLICABLE OPERATING EXPENSES STATEMENT, the
excess shall be credited against the Estimated Additional Rent next due from
Tenant during the immediately subsequent Operating Year, except that in the
event that such excess is paid by Tenant during the final Lease Year, then upon
the expiration of the Term, Landlord or Agent shall pay Tenant the
then-applicable excess promptly after determination thereof BUT NO LATER THAN 90
DAYS AFTER LEASE TERMINATION. During normal business hours and with proper
notice, Tenant or Tenant's representative shall have the right to inspect the
books and records of Landlord to verify the accuracy of Operating Expenses.
TENANT SHALL HAVE THE RIGHT, AT ITS SOLE COST, FOR A PERIOD OF
NINETY (90) DAYS AFTER TENANT'S RECEIPT OF AN OPERATING EXPENSES STATEMENT, TO
REVIEW AND/OR AUDIT LANDLORD'S RECORDS OF OPERATING EXPENSES AND TAXES FOR THE
CALENDAR YEAR TO WHICH SUCH OPERATING EXPENSES STATEMENT PERTAINS. IF SUCH AUDIT
DISCLOSES AN ERROR IN THE OPERATING EXPENSES STATEMENT, THE DIFFERENCE SHALL
PROMPTLY BE PAID BY, OR CREDITED TO, TENANT, AS APPROPRIATE. IF TENANT DOES NOT
EXERCISE ITS RIGHT OF REVIEW AND/OR AUDIT WITHIN SUCH NINETY (90) DAY PERIOD,
THIS RIGHT OF REVIEW AND/OR AUDIT SHALL EXPIRE AND THE OPERATING EXPENSES
STATEMENT TO WHICH SUCH NINETY (90) DAY PERIOD PERTAINS SHALL BE FINAL AND
BINDING UPON TENANT.
4. USE OF PREMISES AND COMMON AREAS; SECURITY/DAMAGE DEPOSIT.
4.1. USE OF PREMISES AND PROPERTY. The Premises shall be
used by the Tenant for the purpose(s) set forth in SECTION 1.7 above and for no
other purpose whatsoever. Tenant shall not, at any time, use or occupy, or
suffer or permit anyone to use or occupy, the Premises, or do or permit anything
to be done in the Premises or the Property, in any manner that may (a) violate
any Certificate of Occupancy for the Premises or the Property; (b) cause, or be
liable to cause, injury to, or in any way impair the value or proper utilization
of, all or any portion of the Property (including, but not limited to, the
structural elements of the Property) or any equipment,
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facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authority or the requirements of insurance bodies or
the rules and regulations of the Property AS SET FORTH ON EXHIBIT B ATTACHED
HERETO AND MADE A PART HEREOF, including any covenant, condition or restriction
affecting the Property; (d) exceed the load bearing capacity of the floor of the
Premises; (e) impair or tend to impair the character, reputation or appearance
of the Property; or (f) unreasonably annoy, inconvenience or disrupt the
operations or tenancies of other tenants or users of the Property. On or prior
to the date hereof, Tenant has completed and delivered for the benefit of
Landlord a "Tenant Operations Inquiry Form" in the form attached hereto as
EXHIBIT C describing the nature of Tenant's proposed business operations at the
Premises, which form is intended to, and shall be, relied upon by Landlord.
4.2. USE OF COMMON AREAS. As used herein, "COMMON AREAS"
shall mean all areas within the Property that are available for the common use
of tenants of the Property and that are not leased or held for the exclusive use
of Tenant or other tenants or licensees, including, but not limited to, parking
areas, driveways, sidewalks, loading areas, access roads, corridors, landscaping
and planted areas. Tenant shall have the nonexclusive right to use the Common
Areas for the purposes intended, subject to such reasonable rules and
regulations as Landlord may uniformly establish from time to time. Tenant shall
not interfere with the rights of any or all of Landlord, other tenants or
licensees, or any other person entitled to use the Common Areas. Without
limitation of the foregoing, Tenant shall not park or store any vehicles or
trailers on, or conduct truck loading and unloading activities in, the Common
Areas in a manner that unreasonably disturbs, disrupts or prevents the use of
the Common Areas by Landlord, other tenants or licensees or other persons
entitled to use the Common Areas. Landlord, from time to time, may change any or
all of the size, location, nature and use of any of the Common Areas although
such changes may result in inconvenience to Tenant, so long as such changes do
not materially and adversely affect Tenant's use of the Premises. In addition to
the foregoing, Landlord may, at any time, close or suspend access to any Common
Areas to perform any acts in the Common Areas as, in Landlord's reasonable
judgment, are desirable to improve or maintain either or both of the Premises
and the Property, or are required in order to satisfy Landlord's obligations
under either or both of SECTIONS 13.2 and 18; provided, however, that Landlord
shall use reasonable efforts to limit any disruption of Tenant's use and
operation of the Premises in connection therewith.
4.3. SIGNAGE. Tenant shall not affix any sign of any size
or character to any portion of the Property, without prior written approval of
Landlord, which approval shall not be unreasonably withheld or delayed. Tenant
shall remove all signs of Tenant upon the expiration or earlier termination of
this Lease and immediately repair any damage to either or both of the Property
and the Premises caused by, or resulting from, such removal.
4.4. PARKING. Tenant and Tenant's employees, agents and
invitees (hereinafter referred to as "Tenant's Affiliates") shall be entitled to
utilize only the amount of parking spaces as is consistent with the size of the
Premises and the overall ratio of parking spaces to leasable space provided in
the Property, as given in Section 1.11. Neither Tenant nor Tenant's Affiliates
shall with their vehicles block parking areas or hinder normal traffic flow
within the Property. Violation of this paragraph by Tenant or Tenant's
Affiliates shall be a default under this Lease. The Landlord reserves the right
to control the method, manner and time of, however, Landlord shall not be
responsible for policing, such parking. ALL PARKING SHALL BE AT NO CHARGE FOR
THE TERM OF THE LEASE OTHER THAN THOSE COSTS UNDER SECTION 3. OF THIS LEASE.
5. CONDITION AND DELIVERY OF PREMISES.
5.1. CONSTRUCTION OF IMPROVEMENTS. LANDLORD AND TENANT
ACKNOWLEDGE AND AGREE THAT LANDLORD SHALL DESIGN AND CONSTRUCT, IN ACCORDANCE
WITH THAT CERTAIN SCOPE OF WORK (THE "SCOPE OF WORK") ATTACHED HERETO AS EXHIBIT
D, CERTAIN IMPROVEMENTS (THE "IMPROVEMENTS") CONSISTING OF THE BUILDING AND
THOSE OTHER ITEMS ANCILLARY THERETO THAT ARE OUTLINED IN THE SCOPE OF WORK.
5.2. CONDITION OF PREMISES. Tenant agrees that Tenant is
familiar with the condition of the Property, and Tenant hereby accepts the
foregoing on an "AS-IS," "WHERE-IS" basis, SUBJECT TO LENDER'S OBLIGATION TO
CONSTRUCT THE IMPROVEMENTS. Tenant acknowledges that neither Landlord nor Agent,
nor any representative of Landlord, has made any representation as to the
condition of the foregoing or the suitability of the foregoing for Tenant's
intended use. Tenant represents and warrants that Tenant has made its own
inspection of the foregoing. Neither Landlord nor Agent shall be obligated to
make any repairs, replacements or improvements (whether structural or otherwise)
of any kind or nature to the foregoing in connection with, or in consideration
of,
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this Lease, except (a) as set forth in SECTIONS 13.2 and 18 and (b) with respect
to THE CONSTRUCTION OF THE IMPROVEMENTS expressly and specifically described in
EXHIBIT D attached hereto. Landlord agrees to make reasonable efforts to
enforce, or cause Agent to enforce, upon Tenant's request, all manufacturer's or
contractor's warranties, if any, issued in connection with any OF THE
IMPROVEMENTS.
5.3. DELAY IN COMMENCEMENT.
5.2.1. EXTENSION OF THE COMMENCEMENT DATE. Landlord
shall not be liable to Tenant if Landlord does not deliver possession of the
Premises to Tenant on the Commencement Date. The obligations of Tenant under the
Lease shall not be affected thereby, except that the Commencement Date shall be
delayed until Landlord delivers possession of the Premises to Tenant, and the
Lease Term shall be extended by a period equal to the number of days of delay in
delivery of possession of the Premises to Tenant, plus the number of days
necessary to end the Lease Term on the last day of a month. In the event
Landlord is required by local governmental authority to obtain building permits
to perform the Work Items, the date of delivery of the Premises by Landlord
shall be deemed the day following the date upon which the Landlord receives from
such authority: a) the Certificate of Occupancy (temporary or permanent) for the
Premises, or b) all final inspections pertaining to the Work Items, or (c) other
consent as deemed adequate by Landlord. Tenant shall not occupy the Premises in
any manner until one of such consents is obtained. NOTWITHSTANDING THE ABOVE, IF
THE PREMISES CANNOT BE DELIVERED TO THE TENANT WITHIN 280 DAYS AFTER LEASE
EXECUTION, THE TENANT SHALL HAVE THE OPTION TO TERMINATE THIS LEASE (UNLESS DUE
TO DELAYS CAUSED BY TENANT OR FORCE MAJEURE) BY GIVING WRITTEN NOTICE TO THE
LANDLORD.
5.2.2 LIQUIDATED DAMAGES FOR DELAY. Landlord
acknowledges that the timely completion of the Improvements is essential to
Tenant's ability to relocate its operations from its current facility to the
Premises without additional costs under its current lease. In the event Landlord
fails to deliver possession of the Premises to Tenant on or before (i) THE DATE
THAT IS ONE HUNDRED THIRTY (130) DAYS AFTER THE DATE HEREOF, or, (ii) if
LANDLORD HAS REQUESTED AN extension OF SUCH DATE by WRITTEN NOTICE to Tenant NOT
LATER THAN THIRTY (30) DAYS PRIOR TO THE DATE LISTED IN CLAUSE (i) ABOVE, THE
DATE THAT IS ONE HUNDRED SIXTY (160), DAYS AFTER THE DATE HEREOF (whichever is
applicable, is hereinafter called the "TARGET DATE"), then Landlord shall be
obligated to pay to Tenant (as "DELAY DAMAGES") the amount of $1,228.62 for each
day after the Target Date (as such date may be extended by written agreement by
Landlord and Tenant or on account of any Excused Delays, as defined below) that
the Landlord has failed to deliver possession of the Premises to Tenant, as
fixed and liquidated damages for such failure and as Tenant's sole and exclusive
remedy therefor (it being acknowledged that it would be extremely difficult and
impracticable under the presently known and anticipated facts and circumstances
to ascertain and fix the actual damages that Tenant would incur as a result of
such delays, and therefore, the parties hereto agree that the aforesaid amount
represents the agreed upon settlement of such damages). Notwithstanding anything
to the contrary contained herein, the aggregate amount of Delay Damages that
Landlord shall be obligated to pay to Tenant shall in no event exceed
$73,717.20. "EXCUSED DELAY" means any actual delay in delivery of the Premises
to Tenant caused by: (i) changes to the scope of the work requested by Tenant;
(ii) any negligent act or willful misconduct or willful failure to act by Tenant
or any of the Tenant Parties; (iii) Tenant's failure to furnish information or
to respond to any request by Landlord for any approval of information within
five (5) days of such request; (iv) Tenant's failure to approve the final
drawings of the Improvements within ten (10) business days of the date hereof;
(v) any breach by Tenant of its obligations under this Lease; (vi) any request
by Tenant that Landlord delay the completion of any of the Improvements; or
(vii) Force Majeure (as hereinafter defined).
6. SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES;
ATTORNMENT.
6.1. SUBORDINATION. Provided that Tenant is provided with
a reasonable and customary subordination, nondisturbance and attornment
agreement duly executed by the holder of any mortgage or deed of trust or the
landlord pursuant to any ground lease, this Lease shall be subject and
subordinate at all times to (a) all ground leases or underlying leases that may
now exist or hereafter be executed affecting either or both of the Premises and
the Property and (b) any mortgage or deed of trust that may now exist or
hereafter be placed upon, and encumber, any or all of (x) the Property; (y) any
ground leases or underlying leases for the benefit of the Property; and (z) all
or any portion of Landlord's interest or estate in any of said items.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases that
benefit the Property or any such mortgage or deed of trust liens to this Lease,
SO LONG AS SUCH LIEN HOLDERS
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AGREE IN A SIGNED WRITING NOT TO DISRUPT TENANT'S LAWFUL ENJOYMENT, USE AND
POSSESSION OF THE PREMISES IN ACCORDANCE WITH THE LEASE. Tenant shall execute
and deliver, upon demand by Landlord and in the form reasonably requested by
Landlord, any additional documents evidencing the priority of subordination of
this Lease with respect to any such ground leases or underlying leases for the
benefit of the Property or any such mortgage or deed of trust.
6.2. ESTOPPEL CERTIFICATES. Tenant agrees, from time to
time and within seven (7) BUSINESS days after request by Landlord, to deliver to
Landlord, or Landlord's designee, an estoppel certificate stating such matters
pertaining to this Lease as may be reasonably requested by Landlord. Failure by
Tenant to timely execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant that the statements
included therein are true and correct without exception. Landlord and Tenant
intend that any statement delivered pursuant to this section may be relied upon
by any prospective purchaser or mortgagee of the Property or of any interest
therein or any other Landlord designee. SUCH MORTGAGEE SHALL PROVIDE TENANT WITH
A SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT PROVIDING INTER ALIA
(i) THAT THIS LEASE IS SUBORDINATE TO THE LIEN OF THE MORTGAGE (IF SO ELECTED BY
MORTGAGEE), (ii) THAT TENANT'S RIGHT OF POSSESSION WILL NOT BE DISTURBED BY THE
MORTGAGEE (OR BY ANY SUBSEQUENT TRANSFEREE OF THE LANDLORD'S INTEREST) IN
CONNECTION WITH ANY MORTGAGE FORECLOSURE PROCEEDINGS SO LONG AS TENANT PERFORMS
ITS OBLIGATIONS SET FORTH IN THE LEASE, AND (iii) THAT TENANT SHALL ATTORN TO
THE FORECLOSING MORTGAGEE OR PURCHASER AT A FORECLOSURE SALE.
6.3. TRANSFER FOR LANDLORD. In the event of a sale or
conveyance by Landlord of the Property, WITH WRITTEN NOTICE TO TENANT OF SUCH
SALE OR CONVEYANCE, the same shall operate to release Landlord from any future
liability for any of the covenants or conditions, express or implied, herein
contained in favor of Tenant, and in such event Tenant agrees to look solely to
Landlord's successor in interest with respect thereto and agrees to attorn to
such successor.
7. QUIET ENJOYMENT. Subject to the provisions of this Lease, so
long as Tenant pays all of the Rent and performs all of its other obligations
hereunder, Tenant shall not be disturbed in its possession of the Premises by
Landlord, Agent or any other person lawfully claiming through or under Landlord;
provided, however, in addition to Landlord's rights under SECTION 16 and
elsewhere in this Lease, Landlord and Landlord's agents, employees, contractors
and representatives shall be provided reasonable access to the Premises such
that Landlord and Landlord's agents, employees, contractors and representatives
may perform the General Maintenance Services (as hereinafter defined) without
undue interruption, delay or hindrance. This covenant shall be construed as a
covenant running with the Property and is not a personal covenant of Landlord.
Tenant shall not unreasonably interrupt, delay, prevent or hinder the
performance of the General Maintenance Services by or on behalf of Landlord.
Notwithstanding the foregoing, however, Tenant acknowledges and agrees that
Landlord shall have the unfettered and unilateral right to use portions of the
Common Areas (inclusive of the roof of the Building) for such purposes and uses
as Landlord may desire; provided, however, that in all events and under all
circumstances, Landlord's use of any portion of the Common Areas shall not
interfere, in any material respect, with any or all of (a) Tenant's rights to
occupy and use the Common Areas (in the manner and for the purposes contemplated
hereunder); (b) Tenant's right to utilize the vehicular parking areas located on
the Common Areas; and (c) Tenant's right of access, ingress and egress to and
from the Common Areas. Landlord shall also have the right to install, maintain,
use, repair and replace pipes, ducts, conduits and wires leading through the
Premises, in locations which will not materially interfere with Tenant's use
thereof, and serving other areas of the Building or the Property.
8. ASSIGNMENT, SUBLETTING AND MORTGAGING.
8.1. PROHIBITION. Tenant acknowledges that this Lease and
the Rent due under this Lease have been agreed to by Landlord in reliance upon
Tenant's reputation and creditworthiness and upon the continued operation of the
Premises by Tenant for the particular use described in SECTION 4.1 above;
therefore, Tenant shall not, whether voluntarily, or by operation of law, or
otherwise: (a) assign or otherwise transfer this Lease; (b) sublet the Premises
or any part thereof, or allow the same to be used or occupied by anyone other
than Tenant; or (c) mortgage, pledge, encumber, or otherwise hypothecate this
Lease or the Premises, or any part thereof, in any manner whatsoever, without in
each instance obtaining the prior written consent of Landlord, which consent may
be given or withheld in Landlord's sole, but reasonable, discretion. Any
purported assignment, mortgage, transfer, pledge or sublease made without the
prior written consent of Landlord shall be absolutely null and void. No
assignment of this Lease shall be effective and valid unless and until the
assignee executes and delivers to Landlord any and all
Tenant Initial__________ Landlord Initial__________
7
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder. Any consent by Landlord to a
particular assignment, sublease or mortgage shall not constitute consent or
approval of any subsequent assignment, sublease or mortgage, and Landlord's
written approval shall be required in all such instances. LANDLORD'S CONSENT TO
OR REFUSAL OF ASSIGNMENT OR SUBLETTING SHALL BE BASED ON ASSIGNEE OR SUBLESSEE
HAVING, IN LANDLORD'S SOLE BUT REASONABLE DISCRETION, SATISFACTORY CREDIT AND ON
ASSIGNEE OR SUBLESSEE HAVING, IN LANDLORD'S SOLE BUT REASONABLE DISCRETION, A
USE THAT IS COMPATIBLE WITH THE PROPERTY AND WITH OTHER TENANTS WITHIN THE
PROPERTY. No consent by Landlord to any assignment or sublease shall be deemed
to release Tenant from its obligations hereunder and Tenant shall remain fully
liable for performance of all obligations under this Lease. NOTWITHSTANDING THE
FOREGOING, TENANT MAY ASSIGN THIS LEASE, IN WHOLE OR IN PART, TO ANY CORPORATION
OR OTHER BUSINESS ENTITY INTO OR WITH WHICH TENANT MAY BE MERGED OR CONSOLIDATED
OR TO ANY CORPORATION OR BUSINESS ENTITY WHICH SHALL BE AN AFFILIATE,
SUBSIDIARY, PARENT OR SUCCESSOR OF TENANT, OR TO A CORPORATION OR BUSINESS
ENTITY UNTO OR WITH WHICH TENANT MAY BE MERGED OR CONSOLIDATED, OR TO A
PARTNERSHIP, PROVIDED: i) TENANT'S USE DOES NOT CHANGE; II) TENANT'S FINANCIAL
CONDITION IS NOT DIMINISHED; AND iii) THE ASSIGNEE OR SUBLESSEE ASSUMES ALL OF
TENANT'S OBLIGATIONS HEREUNDER.
8.2. RIGHTS OF LANDLORD. If this Lease is assigned, or if
the Premises (or any part thereof) are sublet or used or occupied by anyone
other than Tenant, whether or not in violation of this Lease, Landlord or Agent
may (without prejudice to, or waiver of its rights), collect Rent from the
assignee, subtenant or occupant. Landlord or Agent may apply the net amount
collected to the Rent herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
this SECTION 8. With respect to the allocable portion of the Premises sublet, in
the event that the total rent LESS MATERIAL COSTS INCURRED BY TENANT IN
SUBLEASING SPACE, and any other considerations received under any sublease by
Tenant is greater than the total Rent required to be paid, from time to time,
under this Lease, Tenant shall pay to Landlord FIFTY PERCENT (50%) of such
excess as received from any subtenant and such amount shall be deemed a
component of the Additional Rent.
8.3. PERMITTED TRANSFERS. The provisions of SECTION 8.1(a)
shall apply to a transfer of a majority (i.e. greater than 50% interest) of the
voting stock of Tenant or to any other change in voting control of Tenant (if
Tenant is a corporation), or to a transfer of a majority of the general
partnership or VOTING membership interests in Tenant (if Tenant is a partnership
or a limited liability company), or to any comparable transaction involving any
other form of business entity, whether effectuated in one or more transactions,
as if such transfer were an assignment of this Lease; but NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THE FOREGOING provisions, THE PROVISIONS OF SECTION
8.1(a) shall not apply to such a transfer, provided, in any of such events, THE
TENANT, the successor to Tenant (or any party remaining liable for the
obligations of Tenant hereunder): (i) has a net worth at least equal to the net
worth of Tenant as of the date of LEASE EXECUTION or (ii) is capable of
satisfying Tenant's obligations hereunder, in Landlord's reasonable judgment.
Any such permitted transferee shall execute and deliver to Landlord any and all
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder. Notwithstanding anything to
the contrary contained in this SECTION 8.3, in no event may Tenant assign,
mortgage, transfer, pledge or sublease this Lease to any entity whatsoever if,
at the time of such assignment, mortgage, transfer, pledge or sublease, Tenant
is in default under this Lease. NOTWITHSTANDING THE FOREGOING, HOWEVER, THE
PROVISIONS OF SECTION 8.1(a), SHALL NOT APPLY IN THE EVENT THAT THERE IS A
CHANGE IN VOTING CONTROL OF TENANT AS A RESULT OF AN INITIAL PUBLIC OFFERING OF
STOCK BY THE TENANT.
9. COMPLIANCE WITH LAWS.
9.1. COMPLIANCE WITH LAWS. Tenant shall, at its sole
expense (regardless of the cost thereof), comply with all local, state and
federal laws, rules, regulations and requirements now or hereafter in force and
all judicial and administrative decisions in connection with the enforcement
thereof (collectively, "LAWS"), pertaining to either or both of the Premises and
Tenant's use and occupancy thereof. If any license or permit is required for the
conduct of Tenant's business in the Premises, Tenant, at its expense, shall
procure such license prior to the Commencement Date, and shall maintain such
license or permit in good standing throughout the Term. Tenant shall give prompt
notice to Landlord of any written notice it receives of the alleged violation of
any Law or requirement of any governmental or administrative authority with
respect to either or both of the Premises and the use or occupation thereof. The
judgment of any court of competent jurisdiction, or the admission of Tenant in
any action or proceeding against Tenant, whether Landlord is a party thereto or
not, that any such Law pertaining to the Premises has been violated, shall be
conclusive of that fact as between Landlord and Tenant. LANDLORD SHALL COMPLY
WITH ALL
Tenant Initial__________ Landlord Initial__________
8
LAWS AS THEY RELATE TO LANDLORD'S OWNERSHIP AND OPERATION OF THE PROPERTY AS
REQUIRED BY ANY GOVERNMENTAL AUTHORITY.
9.2. HAZARDOUS MATERIALS. If, at any time or from time to
time during the Term (or any extension thereof), any Hazardous Material (defined
below) is generated, transported, stored, used, treated or disposed of at, to,
from, on or in either or both of the Premises and the Property by, or as a
result of any act or omission of, any or all of Tenant and any or all of
Tenant's Parties (defined below): (i) Tenant shall, at its own cost, at all
times comply (and cause all others to comply) with all laws (federal, state or
local) relating to Hazardous Materials, including, but not limited to, all
Environmental Laws (defined below), and Tenant shall further, at its own cost,
obtain and maintain in full force and effect at all times all permits and other
approvals required in connection therewith; (ii) Tenant shall promptly provide
Landlord or Agent with complete copies of all communications, permits or
agreements with, from or issued by any governmental authority or agency
(federal, state or local) or any private entity relating in any way to the
presence, release, threat of release, or placement of Hazardous Materials on or
in the Premises or any portion of the Property, or the generation,
transportation, storage, use, treatment, or disposal at, on, in or from the
Premises, of any Hazardous Materials; (iii) Landlord, Agent and their respective
agents and employees shall have the right to either or both (x) enter the
Premises and (y) conduct appropriate tests for the purposes of ascertaining
Tenant's compliance with all applicable laws (including Environmental Laws),
rules or permits relating in any way to the generation, transport, storage, use,
treatment, disposal or presence of Hazardous Materials on, at, in or from all or
any portion of either or both of the Premises and the Property; and (iv) upon
written request by Landlord or Agent, Tenant shall provide Landlord with the
results of reasonably appropriate tests of air, water or soil to demonstrate
that Tenant complies with all applicable laws, rules or permits relating in any
way to the generation, transport, storage, use, treatment, disposal or presence
of Hazardous Materials on, at, in or from all or any portion of either or both
of the Premises and the Property. This SECTION 9.2 does not authorize the
generation, transportation, storage, use, treatment or disposal of any Hazardous
Materials at, to, from, on or in the Premises in contravention of this SECTION
9. Tenant covenants to investigate, clean up and otherwise remediate, at
Tenant's sole expense, any release of Hazardous Materials caused, contributed
to, or created by any or all of (A) Tenant and (B) any or all of Tenant's
officers, directors, members, managers, partners, invitees, agents, employees,
contractors or representatives ("TENANT PARTIES") during the Term. Such
investigation and remediation shall be performed only after Tenant has obtained
Landlord's prior written consent; provided, however, that Tenant shall be
entitled to respond immediately to an emergency without first obtaining such
consent. All remediation shall be performed in strict compliance with
Environmental Laws and to the reasonable satisfaction of Landlord. Tenant shall
be liable for any and all conditions covered hereby, and for all costs relating
thereto, that are caused or created by any or all of Tenant and any or all of
Tenant's Parties. Tenant shall not enter into any settlement agreement, consent
decree or other compromise with respect to any claims relating to any Hazardous
Materials in any way connected to the Premises without first obtaining
Landlord's written consent (which consent may be given or withheld in Landlord's
sole, but reasonable, discretion) and affording Landlord the reasonable
opportunity to participate in any such proceedings. As used herein, the term (x)
"ENVIRONMENTAL LAWS" shall mean any and all laws pertaining to Hazardous
Materials or that otherwise deal with, or relate to, air or water quality, air
emissions, soil or ground conditions or other environmental matters of any kind;
and (y) "HAZARDOUS MATERIALS" shall mean any waste, material or substance
(whether in the form of liquids, solids or gases, and whether or not airborne)
that is or may be deemed to be or include a pesticide, petroleum, asbestos,
polychlorinated biphenyl, radioactive material, urea formaldehyde or any other
pollutant or contaminant that is or may be deemed to be hazardous, toxic,
ignitable, reactive, corrosive, dangerous, harmful or injurious, or that
presents a risk to public health or to the environment, and that is or becomes
regulated by any Environmental Law. The undertakings, covenants and obligations
imposed on Tenant under this SECTION 9.2 shall survive the termination or
expiration of this Lease.
9.3. LANDLORD'S REPRESENTATION. LANDLORD REPRESENTS, TO
LANDLORD'S ACTUAL KNOWLEDGE, THAT AS OF THE COMMENCEMENT DATE, THE PROPERTY AND
PREMISES ARE FREE FROM HAZARDOUS MATERIALS. "LANDLORD'S ACTUAL KNOWLEDGE" SHALL
REFER ONLY TO THE ACTUAL (AS OPPOSED TO DEEMED, IMPUTED OR CONSTRUCTIVE)
KNOWLEDGE OF XXXXXX XXXXXXX, LANDLORD'S DEVELOPMENT OFFICER AND XXX XXXXX,
LANDLORD'S REGIONAL DIRECTOR, WITHOUT INQUIRY AND, NOTWITHSTANDING ANY FACT OR
CIRCUMSTANCE TO THE CONTRARY, SHALL NOT BE CONSTRUED TO REFER TO THE KNOWLEDGE
OF ANY OTHER PERSON OR ENTITY. LANDLORD HEREBY INDEMNIFIES AND HOLDS TENANT
HARMLESS FROM AND AGAINST ANY LOSSES (AS HEREINAFTER DEFINED) ACTUALLY SUFFERED
OR INCURRED BY TENANT AS A RESULT OF (i) ANY HAZARDOUS MATERIALS USED, EXPOSED,
EMITTED, RELEASED, DISCHARGED, GENERATED, MANUFACTURED, SOLD, TRANSPORTED,
HANDLED, STORED, TREATED, REUSED, PRESENTED, DISPOSED OF OR RECYCLED IN, AT,
NEAR OR UNDER ALL OR ANY PORTION OF THE PREMISES OR THE PROPERTY PRIOR TO THE
COMMENCEMENT DATE BY ANY
Tenant Initial__________ Landlord Initial__________
9
PARTY OTHER THAN TENANT OR ANY TENANT'S PARTIES; AND (ii) ANY VIOLATION OF
ENVIRONMENTAL LAWS, OR ANY PERMIT, APPLICATION OR CONSENT REQUIRED IN CONNECTION
WITH ENVIRONMENTAL LAWS, BY THE PREMISES OR THE PROPERTY EXISTING PRIOR TO THE
COMMENCEMENT DATE, EXCEPT TO THE EXTENT CAUSED BY TENANT OR ANY TENANT'S
PARTIES. THE FOREGOING INDEMNITY SHALL SURVIVE A TERMINATION OF THIS LEASE.
10. INSURANCE.
10.1. INSURANCE TO BE MAINTAINED BY LANDLORD. Landlord
shall maintain (a) "all-risk" property insurance policy covering the Property
(at its ACTUAL replacement cost), but excluding Tenant's Property (defined
below), and (b) commercial general public liability insurance covering Landlord
for claims arising out of liability for bodily injury, death, personal injury,
advertising injury and property damage occurring in and about the Property and
otherwise resulting from any acts and operations of Landlord, its agents and
employees, and (c) rent loss insurance, all of the above with limits that are
required by any lender(s) of Landlord, or as are otherwise reasonably determined
by Landlord. INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall purchase, at its
own expense, and keep in force at all times during this Lease the policies of
insurance set forth below in SECTIONS 10.1.1 and 10.1.2 (collectively, "TENANT'S
POLICIES"). All Tenant's Policies shall (a) be issued by an insurance company
with a Best rating of A-X or better and otherwise reasonably acceptable to
Landlord and shall be licensed to do business in the state in which the Property
is located; (b) provide that said insurance shall not be canceled or materially
modified SO AS TO AFFECT THE COVERAGES REQUIRED HEREIN, unless 30 days' prior
written notice shall have been given to Landlord; and (c) otherwise be in such
form, and include such coverages, as Landlord may reasonably require. All
Tenant's Policies (or, at Landlord's option, Certificates of Insurance, in a
form reasonably acceptable to Landlord, evidencing said Tenant's Policies),
shall be delivered to Landlord by Tenant prior to commencement of the Lease and
renewals thereof shall be delivered at least 30 days prior to the expiration of
each Tenant's Policy. Tenant shall give prompt notice to Landlord and Agent of
any bodily injury, death, personal injury, advertising injury or property damage
occurring in and about the Property.
10.1.1. GENERAL LIABILITY AND AUTO INSURANCE. Tenant
shall purchase and maintain, throughout the Term, a Tenant's Policy(ies) of (i)
commercial general or excess liability insurance, including personal injury and
property damage, in the amount of not less than $2,000,000.00 per occurrence,
and $5,000,000.00 annual general aggregate, per location; (ii) comprehensive
automobile liability insurance covering Tenant against any losses arising out of
liability for personal injuries or deaths of persons and property damage
occurring in or about the Premises in the amount of not less than $1,000,000,
combined single limit. The Tenant's Policies required by this SECTION 10.2.1
shall (a) name Landlord, Agent, and any party holding an interest to which this
Lease may be subordinated as additional insureds; (b) provide coverage on an
occurrence basis; (c) provide coverage for the indemnity obligations of Tenant
under this Lease; (d) contain a severability of insured parties provision and/or
a cross liability endorsement (OR INCLUSION OF SUCH PROVISION WITHIN THE BODY OF
THE POLICY); (e) be primary, not contributing with, and not in excess of,
coverage that Landlord may carry; and (f) provide coverage with no exclusion for
a pollution incident arising from a hostile fire.
10.1.2. PROPERTY AND WORKERS' COMPENSATION
INSURANCE. Tenant shall purchase and maintain, throughout the Term, a Tenant's
Policy or Policies of (i) "all-risk" property insurance covering Tenant's
Property (at its full replacement cost), and damage to other property resulting
from any acts or operations of Tenant, and (ii) workers' compensation insurance
per the applicable state statutes covering all employees of Tenant.
10.2. WAIVER OF SUBROGATION. To the extent permitted by
law, and without affecting the coverage provided by insurance required to be
maintained hereunder, Landlord and Tenant each waive any right to recover
against the other for (a) damages to property, (b) damages to all or any portion
of either or both of the Premises and the Property, (c) claims arising by reason
of the foregoing, to the extent such damages and claims are insured against, or
required to be insured against, by Landlord or Tenant under this Lease, or (d)
claims paid by Tenant's workers' compensation carrier. This provision is
intended to waive, fully and for the benefit of each party, any rights and/or
claims which might give rise to a right of subrogation by any insurance carrier.
The coverage obtained by each party pursuant to this Lease shall include,
without limitation, a waiver of subrogation by the carrier which conforms to the
provisions of this section.
Tenant Initial__________ Landlord Initial__________
10
11. ALTERATIONS.
11.1. PROCEDURAL REQUIREMENTS. Tenant may, from time to
time, at its expense, make alterations or improvements in and to the Premises
(hereinafter collectively referred to as "ALTERATIONS"), provided that Tenant
first obtains the written consent of Landlord in each instance WHERE ALTERATIONS
EXCEED $5,000.00 OR IF ALTERATIONS ARE ATTACHED TO EXTERIOR WALL, OR AFFECT THE
ROOF OR ANY STRUCTURAL COMPONENT OF THE BUILDING. Landlord's consent to
Alterations shall not be unreasonably withheld, provided that: (a) the
Alterations are non-structural and the structural integrity of the Property
shall not be affected; (b) the Alterations are to the interior of the Premises;
(c) the proper functioning of the mechanical, electrical, heating, ventilating,
air-conditioning ("HVAC"), sanitary and other service systems of the Property
shall not be affected and the usage of such systems by Tenant shall not be
increased; (d) the Alterations have no adverse effect on other leased premises
in the Property; (e) Tenant shall have appropriate insurance coverage,
reasonably satisfactory to Landlord, regarding the performance and installation
of the Alterations; (f) the Alterations shall conform with all other
requirements of this Lease; and (g) Tenant shall agree that such Alterations
shall, at the option of the Landlord (SUCH DECISION TO BE MADE BY LANDLORD AT
TIME OF CONSENT OF ALTERATION), become the property of the Landlord upon the
Expiration Date and shall be surrendered with the Premises as a part thereof, or
shall be removed at Tenant's expense; and (h)Tenant shall have provided Landlord
with reasonably detailed plans for such Alterations in advance of requesting
Landlord's consent. Additionally, before proceeding with any Alterations, Tenant
shall (i) at Tenant's expense, obtain all necessary governmental permits and
certificates for the commencement and prosecution of Alterations; (ii) submit to
Agent, for Landlord's written approval, working drawings, plans and
specifications and all permits for the work to be done and Tenant shall not
proceed with such Alterations until it has received said approval; and (iii)
cause those contractors, materialmen and suppliers engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a form
reasonably acceptable to Landlord) evidencing policies of commercial general
liability insurance (providing the same coverages as required in SECTION 10.1.1
above) and workers' compensation insurance. Such insurance policies shall
satisfy the obligations imposed under SECTION 10.1.1(A) through (D) AND (F).
After obtaining Landlord's approval to the Alterations, Tenant shall give
Landlord at least five days' prior written notice of the commencement of any
Alterations at the Premises, and Landlord may elect to record and post notices
of non-responsibility at the Premises.
11.2. PERFORMANCE OF ALTERATIONS. Tenant shall cause the
Alterations to be performed in compliance with all applicable permits, laws and
requirements of public authorities, and with Landlord's reasonable rules and
regulations or any other restrictions that Landlord or Agent may impose on the
Alterations. Tenant shall cause the Alterations to be diligently performed in a
good and workmanlike manner, using new materials and equipment at least equal in
quality and class to the standards for the Property established by Landlord or
Agent. Alterations shall be performed by properly licensed contractors first
approved by Landlord, and Tenant's agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony, and not interfere with, Landlord
and its agents and contractors (if any) or with any other tenants or occupants
of the Property. Tenant shall obtain all necessary permits and certificates for
final governmental approval of the Alterations and shall provide Landlord with
"as built" plans, copies of all construction contracts, governmental permits and
certificates and proof of payment for all labor and materials, including,
without limitation, copies of paid invoices and final lien waivers.
11.3. LIEN PROHIBITION. Tenant shall pay when due all
claims for labor and material furnished to the Premises in connection with the
Alterations. Tenant shall not permit any mechanics or materialmen's liens to
attach to the Premises or the Property. Tenant, at its expense, shall procure
the satisfaction or discharge of record of all such liens and encumbrances
within 30 days after NOTIFICATION OF the filing thereof; or, within such thirty
(30) day period, Tenant shall provide Landlord, at Tenant's sole expense, with
endorsements (satisfactory, both in form and substance, to Landlord and the
holder of any mortgage or deed of trust) to the existing title insurance
policies of Landlord and the holder of any mortgage or deed of trust, insuring
against the existence of, and any attempted enforcement of, such lien or
encumbrance. In the event Tenant has not so performed, Landlord may, at its
option, pay and discharge such liens and Tenant shall be responsible to
reimburse Landlord, on demand and as Additional Rent under this Lease, for all
costs and expenses incurred in connection therewith, together with interest
thereon at the rate set forth in SECTION 22.3, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any costs in posting
bond to effect discharge or release of the lien as an encumbrance against the
Premises or the Property. Tenant agrees to and shall indemnify and save Landlord
free and harmless against liability, loss, damage, costs or expenses, including
attorney's fees and costs of discovery and suit, on account of claims of liens
of laborers
Tenant Initial__________ Landlord Initial__________
11
or materialmen or others for Alterations performed for, or materials or supplies
furnished to, Tenant or persons claiming under Tenant.
The language of this provision shall be binding upon the
Landlord, its successors and assigns, and the heirs, assignees, administrators,
legal representatives, executors or successors of the Tenant.
THE INTEREST OF THE LANDLORD IN THE PREMISES AND THE PROPERTY
SHALL NOT, UNDER ANY CIRCUMSTANCES, BE SUBJECT TO LIENS FOR ALTERATIONS MADE BY
THE TENANT OR ANY OTHER ACT OF TENANT.
A notice concerning this provision of this Lease has been executed by
Landlord and has been recorded with the clerk of the Court of the County named
in Section 1.3. This Notice reads as follows:
S P E C I M E N
NOTICE REGARDING MECHANIC LIENS
Notice is hereby given of certain provisions contained in the Leases between
FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC., as Landlord, and the Tenants of the
Premises on property hereinafter described. This notice is given pursuant to
713.10, Florida Statutes, 1997. FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC., as
Landlord, and on behalf of its successors and assigns, hereby gives notice as
follows:
1. The name of the Landlord is FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.
2. The legal description of the parcel of land to which this notice
applies is described in EXHIBIT A attached hereto and by this reference
made a part hereof.
3. MECHANIC'S LIEN. Tenant agrees that Tenant will pay or cause to be paid
all costs for Alterations and other acts done by Tenant or caused to be
done by Tenant on the Premises of a character which could, but for the
prohibitions hereinafter contained, result in liens on Landlord's
interest therein, and Tenant will keep the Premises free and clear of
all mechanic's liens and other liens on account of Alterations done for
Tenant or persons claiming under Tenant. Tenant agrees to and shall
indemnify and save Landlord free and harmless against liability, loss,
damage, costs or expenses, including attorney's fees and costs of
discovery and suit, on account of claims of liens of laborers or
materialmen or others for Alterations performed for, or materials or
supplies furnished to, Tenant or persons claiming under Tenant.
THE INTEREST OF THE LANDLORD IN THE PREMISES AND THE PROPERTY SHALL
NOT, UNDER ANY CIRCUMSTANCES, BE SUBJECT TO LIENS FOR ALTERATIONS MADE
BY THE TENANT OR ANY OTHER ACT OF TENANT.
4. All leases entered into for space in the Premises on the parcel of land
described in EXHIBIT A attached hereto contain the language identified
in paragraph 3 above.
LANDLORD: FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.,
BY:___________________________________________________
END OF SPECIMEN
Tenant Initial__________ Landlord Initial__________
12
Tenant agrees that the Public Notice contained above, which has been recorded in
the public records of the county where the leased Premises are located, may be
effectively discharged, released, and removed from said public records by
Landlord alone executing and recording in the public records a notice that the
leased Premises are discharged and released from the terms of this Section, as
well as all other provisions of this Lease.
12. LANDLORD'S AND TENANTS PROPERTY.
12.1. LANDLORD'S PROPERTY. Subject to SECTION 12.2, all
fixtures, machinery, equipment, improvements and appurtenances attached to, or
built into, the Premises at the commencement of, or during the Term, whether or
not placed there by or at the expense of Tenant, shall become and remain a part
of the Premises; shall be deemed the property of Landlord (the "LANDLORD'S
PROPERTY"), without compensation or credit to Tenant; and shall not be removed
by Tenant at the Expiration Date unless Landlord requests their removal.
"NOTWITHSTANDING THE FOREGOING, (i) THE UPS SYSTEM AND BACKUP GENERATOR SHALL
NOT BE DEEMED LANDLORD'S PROPERTY AND SHALL BE REGARDED AS A COMPONENT OF
TENANT'S PROPERTY (AS HEREINAFTER PROVIDED) AND (ii) TENANT SHALL BE RESPONSIBLE
FOR REPAIRING (TO LANDLORD'S REASONABLE SATISFACTION) ANY DAMAGES TO PREMISES OR
THE PROPERTY RESULTING FROM ANY INSTALLATION AND/OR REMOVAL OF THE UPS SYSTEM
AND BACKUP GENERATOR." Further, any personal property in the Premises on the
Commencement Date, movable or otherwise, unless installed and paid for by
Tenant, shall be and shall remain the property of Landlord and shall not be
removed by Tenant. In no event shall Tenant remove any of the following
materials or equipment without Landlord's prior written consent (which consent
may be given or withheld in Landlord's sole discretion): any power wiring or
power panels, lighting or lighting fixtures, wall or window coverings, carpets
or other floor coverings, heaters, air conditioners or any other HVAC equipment,
fencing or security gates, or other similar building operating equipment and
decorations.
12.2. TENANT'S PROPERTY. All movable non-structural
partitions, business and trade fixtures, machinery and equipment, communications
equipment and office equipment, that are installed in the Premises by, or for
the account of, Tenant without expense to Landlord and that can be removed
without structural damage to the Property, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (collectively, the "TENANT'S PROPERTY") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term,
provided Tenant repairs or pays the cost of repairing any damage to the Premises
or to the Property resulting from the installation and/or removal thereof. At or
before the Expiration Date, or the date of any earlier termination, Tenant, at
its expense, shall remove from the Premises all of Tenant's Property and any
Alterations (except such items thereof as constitute Landlord's Property; or as
Landlord shall have expressly permitted, in writing, to remain, which property
shall become the property of Landlord), and Tenant shall repair (to Landlord's
reasonable satisfaction) any damage to the Premises or the Property resulting
from any installation and/or removal of Tenant's Property. Any other items of
Tenant's Property that shall remain in the Premises after the Expiration Date,
or following an earlier termination date, may, at the option of Landlord, be
deemed to have been abandoned, and in such case, such items may be retained by
Landlord as its property or be disposed of by Landlord, in Landlord's sole and
absolute discretion and without accountability, at Tenant's expense.
Notwithstanding the foregoing, if Tenant is in default under the terms of this
Lease, Tenant may remove Tenant's Property from the Premises only upon the
express written direction of Landlord.
13. REPAIRS AND MAINTENANCE.
13.1. TENANT REPAIRS AND MAINTENANCE. Tenant shall, at its
expense, throughout the Term, (i) maintain and preserve in THE SAME CONDITION AS
PROVIDED AT OCCUPANCY (subject to normal and customary wear and tear), the
Premises and the fixtures and appurtenances therein (including, but not limited
to, the Premises' plumbing and HVAC systems, all doors, overhead or otherwise,
glass and levelers located in the Premises or otherwise available in the
Property for Tenant's sole use; and excluding, however, those components of the
Premises for which Landlord is expressly responsible under SECTION 13.2); and
maintain, in full force and effect, a preventative maintenance and service
contract with a reputable service provider for maintenance of the HVAC systems
of the Premises (a copy of which service agreement shall be provided to Landlord
within ten (10) days after the Commencement Date). Tenant shall also be
responsible for all cost and expenses incurred to perform any and all repairs
and replacements (whether structural or non-structural; interior or exterior;
and ordinary or extraordinary), in and to the Premises and the Property and the
facilities and systems thereof, if and to the extent that the need for such
repairs or replacements arises directly or indirectly from any or all of: (a)
the performance or existence of any Alterations, (b) the installation, use or
operation of Tenant's Property in the Premises, (c) the moving of Tenant's
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Property in or out of the Property, and (d) any act, omission, misuse, or
neglect of Tenant, any of its subtenants, or others entering into the Premises
by act or omission of Tenant or any subtenant. Without limiting the generality
of the foregoing, Tenant, at its expense, shall promptly replace or repair all
scratched, damaged, or broken doors and glass and floor coverings in and about
the Premises, and replace and properly dispose of all light bulbs in the
Premises and repair and maintain all plumbing and electrical fixtures therein.
Any repairs or replacements required to be made by Tenant to any or all of the
structural components of the Property and the mechanical, electrical, sanitary,
HVAC, or other systems of the Property or Premises shall be performed by
appropriately licensed contractors approved by Landlord, which approval shall
not be unreasonably withheld. All such repairs or replacements shall be subject
to the supervision and control of Landlord, and all repairs and replacements
shall be made with materials of equal or better quality than the items being
repaired or replaced.
13.2. LANDLORD REPAIRS. Notwithstanding anything contrary
herein, Landlord shall repair, replace and restore the foundation, exterior and
interior load-bearing walls, roof structure and roof covering and tuckpointing
of the Property; provided, however, that (i) all costs and expenses so incurred
by Landlord to repair, replace and restore the above items shall constitute
Operating Expenses; provided, however, that with respect to any costs incurred
in the replacement context, those costs shall not constitute an Operating
Expense except to the extent that such costs so qualify under SECTION
3.1.1(viii); and (ii) notwithstanding (i) above, in the event that any such
repair, replacement or restoration is necessitated by any or all of the matters
set forth in SECTIONS 13.1(a) through (d) above (collectively, "TENANT
NECESSITATED REPAIRS"), then Tenant shall be required to reimburse Landlord for
all costs and expenses that Landlord incurs in order to perform such Tenant
Necessitated Repairs, and such reimbursement shall be paid, in full, within 10
days after Landlord's delivery of demand therefor. Landlord agrees to commence
the repairs, replacements or restoration described in this SECTION 13.2 within a
reasonable period of time after receiving from Tenant written notice of the need
for such repairs.
14. UTILITIES. Tenant shall purchase all utility services from the
utility or municipality providing such service; shall provide for scavenger,
cleaning and extermination services; and shall pay for such services when
payments are due. Tenant shall be solely responsible for the repair and
maintenance of any meters necessary in connection with such services. Tenant's
use of electrical energy in the Premises shall not, at any time, exceed the
capacity of either or both of (i) any of the electrical conductors and equipment
in or otherwise servicing the Premises; and (ii) the HVAC systems of either or
both of the Premises and the Property. Tenant shall be responsible for the cost
of collection and removal of trash from the Premises whether, at Landlord's
option, Tenant purchases such services directly or Landlord arranges for same.
Landlord may, if Landlord so elects, install re-registering meters at the
Premises and collect from Tenant, as Additional Rent, any and all charges for
utilities so metered, at a cost no greater to Tenant than would be incurred
should the local utility company or governmental unit have furnished such
utilities directly to the Premises.
15. INVOLUNTARY CESSATION OF SERVICES. Landlord reserves the
right, without any liability to Tenant and without affecting Tenant's covenants
and obligations hereunder, to stop service of any or all of the HVAC, electric,
sanitary, elevator (if any), and other systems serving the Premises, or to stop
any other services required by Landlord under this Lease, whenever and for so
long as may be necessary by reason of (i) accidents, emergencies, strikes, or
the making of repairs or changes which Landlord or Agent, in good faith, deems
necessary or (ii) any other cause beyond Landlord's reasonable control. Further,
it is also understood and agreed that Landlord or Agent shall have no liability
or responsibility for a cessation of services to the Premises or to the Property
that occurs as a result of causes beyond Landlord's or Agent's reasonable
control. No such interruption of service shall be deemed an eviction or
disturbance of Tenant's use and possession of the Premises or any part thereof,
or render Landlord or Agent liable to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this Lease, including, but not limited
to, the obligation to pay Rent. NOTWITHSTANDING THE ABOVE, IN THE EVENT THAT THE
SERVICES ABOVE ARE INTERRUPTED FOR MORE THAN FIVE DAYS DUE TO LANDLORD'S
NEGLIGENCE OR WILLFUL MISCONDUCT, WITH SUCH INTERRUPTION CAUSING THE PREMISES TO
BE UNTENABLE, TENANT SHALL BE ENTITLED TO AN ABATEMENT OF RENT FOR EACH DAY
THEREAFTER THAT IT IS WITHOUT SERVICE.
16. LANDLORD'S RIGHTS. Landlord, Agent and their respective
agents, employees and representatives shall have the right to enter and/or pass
through the Premises at any time or times upon reasonable prior notice (except
in the event of emergency): (a) to examine and inspect the Premises and to show
them to actual and prospective lenders, prospective purchasers or mortgagees of
the Property or providers of capital to Landlord and its affiliates; and (b) to
make such repairs, alterations, additions and improvements in or to all or any
portion of
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either or both of the Premises and the Property, or the Property's facilities
and equipment as Landlord is required or desires to make. Landlord and Agent
shall be allowed to take all materials into and upon the Premises that may be
required in connection with any repairs, alterations, additions or improvements,
without any liability to Tenant and without any reduction or modification of
Tenant's covenants and obligations hereunder; provided, however, that Landlord
shall use reasonable efforts to limit interference with Tenant's business
operations and Tenant's occupancy and use of the Premises. During the period of
six months prior to the Expiration Date (or at any time, if Tenant has vacated
or abandoned the Premises or is otherwise in default under this Lease), Landlord
and its agents may exhibit the Premises to prospective tenants. If Tenant shall
not be personally present to permit an entry into Premises when for any reason
an entry therein shall be permissible, Landlord may enter the same by a master
key or by the use of force without rendering Landlord liable therefore and
without in any manner affecting Tenant's obligations under this Lease.
Additionally, Landlord and Agent shall have the following rights with respect to
the Premises, exercisable without notice to Tenant without liability to Tenant
(EXCEPT TO THE EXTENT OF ANY NEGLIGENCE ON THE PART OF LANDLORD OR ITS AGENTS OR
EMPLOYEES), and without being deemed an eviction or disturbance of Tenant's use
or possession of the Premises or giving rise to any claim for setoff or
abatement of Rent: (i) to designate and approve, prior to installation, all
types of signs; (ii) to have pass keys, access cards, or both, to the Premises;
(iii) to decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy at any time after Tenant vacates or abandons the Premises; PROVIDING
TENANT IS IN DEFAULT HEREUNDER, and (iv) to install "For Lease" signs in or upon
the Premises beginning one hundred eighty (180) days prior to the end of the
Term. Landlord shall have no obligation to provide any security service or
alarms to the Property or the Premises; any such security service or alarms
deemed necessary by the Tenant shall be purchased directly by Tenant.
17. NON-LIABILITY AND INDEMNIFICATION.
17.1. NON-LIABILITY. Except as provided in SECTION 17.2.2,
none of Landlord, Agent, any other managing agent, or their respective
affiliates, owners, partners, directors, officers, agents and employees shall be
liable to Tenant for any loss, injury, or damage, to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss. Further, except as provided in SECTION 17.2.2, none of Landlord,
Agent, any other managing agent, or their respective affiliates, owners,
partners, directors, officers, agents and employees shall be liable to Tenant
(a) for any damage caused by other tenants or persons in, upon or about the
Property, or caused by operations in construction of any public or quasi-public
work; (b) injury or damage to person or property caused by fire, or theft, or
resulting from the operation of heating or air conditioning or lighting
apparatus, or from falling plaster, or from steam, gas, electricity, water,
rain, snow, ice, or dampness, that may leak or flow from any part of the
Property, or from the pipes, appliances or plumbing work of the same.
17.2. INDEMNIFICATION.
17.2.1. TENANT INDEMNIFICATION. Tenant hereby
indemnifies, defends, and holds Landlord, Agent and their respective affiliates,
owners, partners, directors, officers, agents and employees (collectively,
"LANDLORD INDEMNIFIED PARTIES") harmless from and against any and all Losses
(defined below) arising from or in connection with any or all of: (a) the
conduct or management of either or both the Property and the Premises or any
business therein, or any work or Alterations done, or any condition created by
any or all of Tenant and Tenant's Parties in or about the Premises during the
Term or during the period of time, if any, prior to the Commencement Date that
Tenant is given access to the Premises; (b) any act, omission or negligence of
any or all of Tenant and Tenant's Parties; (c) any accident, injury or damage
whatsoever (unless caused by Landlord's negligence) occurring in, at or upon
either or both of the Property and the Premises and caused by any or all of
Tenant and Tenant's Parties; (d) any breach by Tenant of any of its warranties
and representations under this Lease; (e) any actions necessary to protect
Landlord's interest under this Lease in a bankruptcy proceeding or other
proceeding under the Bankruptcy Code; (f) any violation or alleged violation by
any or all of Tenant and Tenant's Parties of any Law including, without
limitation, any Environmental Law; (g) any breach of the provisions of SECTION 9
by any or all of Tenant and Tenant's Parties; (h) claims for work or labor
performed or materials supplies furnished to or at the request of any or all of
Tenant and Tenant's Parties; (i) claims arising from any breach or default on
the part of Tenant in the performance of any covenant contained in this Lease;
(j) any Hazardous Materials used, exposed, emitted, released, discharged,
generated, manufactured, sold, transported, handled, stored, treated, reused,
presented, disposed of or recycled in, at, near or under all or any portion of
the Premises as a result of the acts or omissions of any or all of Tenant and
Tenant's Parties; and (k) the violation of any Environmental Law or any permit,
application or consent required in connection with any Environmental Law by any
or all of Tenant
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and Tenant's Parties with respect to the Premises during the Term, excluding,
however, any violation of any Environmental Law resulting directly from the acts
or omissions of Landlord and Landlord's employees, agents and contractors
(collectively, "TENANT'S INDEMNIFIED MATTERS"). In case any action or proceeding
is brought against any or all of Landlord and the Landlord Indemnified Parties
by reason of any of Tenant's Indemnified Matters, Tenant, upon notice from any
or all of Landlord, Agent or any Superior Party (defined below), shall resist
and defend such action or proceeding by counsel reasonably satisfactory to, or
selected by, Landlord. The term "LOSSES" shall mean all claims, demands,
expenses, actions, judgments, damages (actual, but not consequential),
penalties, fines, liabilities, losses of every kind and nature (including,
without limitation, property damage, diminution in value of Landlord's interest
in the Premises or the Property, damages for the loss or restriction on use of
any space or amenity within the Premises or the Property, damages arising from
any adverse impact on marketing space in the Property, sums paid in settlement
of claims and any costs and expenses associated with injury, illness or death to
or of any person), suits, administrative proceedings, costs and fees, including,
without limitation, attorneys' and consultants' reasonable fees and expenses,
and the costs of cleanup, remediation, removal and restoration, that are in any
way related to any matter covered by the foregoing indemnity. The provisions of
this SECTION 17.2.1 shall survive the expiration or termination of this Lease.
17.2.2. LANDLORD INDEMNIFICATION. Landlord hereby
indemnifies, defends and holds Tenant harmless from and against any and all
Losses actually suffered or incurred by Tenant as the sole and direct result of
any negligent, willful or intentional acts or omissions of any or all of
Landlord, Agent and any OF THEIR AGENTS OR EMPLOYEES; ANY BREACH BY LANDLORD OF
ITS REPRESENTATIONS AND WARRANTIES PURSUANT TO THIS LEASE; AND ANY ACCIDENT,
INJURY OR DAMAGE (UNLESS CAUSED BY TENANT'S OR ANY TENANT'S PARTIES' NEGLIGENCE)
OCCURRING IN, AT OR UPON EITHER OR BOTH OF THE PROPERTY AND PREMISES AND CAUSED
BY LANDLORD, AGENT OR ANY OF THEIR AGENTS OR EMPLOYEES parties' within the
direct and sole control of either or both of Landlord and Agent. In the event
that any action or proceeding is brought against Tenant, and the foregoing
indemnity is applicable to such action or proceeding, then Landlord, upon notice
from Tenant, shall resist and defend such action or proceeding by counsel
reasonably satisfactory to Tenant. Notwithstanding anything to the contrary set
forth in this Lease, however, in all events and under all circumstances, the
liability of Landlord to Tenant shall be limited to the interest of Landlord in
the Property, and Tenant agrees to look solely to Landlord's interest in the
Property for the recovery of any judgment or award against Landlord, it being
intended that Landlord shall not be personally liable for any judgment or
deficiency. The provisions of this SECTION 17.2.2 shall survive the expiration
or termination of this Lease.
17.3. FORCE MAJEURE. NEITHER PARTY HERETO shall have ANY
liability whatsoever to THE OTHER, with respect to any act, event or
circumstance arising out of (a) SUCH PARTY'S failure to fulfill, or delay in
fulfilling any of its obligations under this Lease by reason of labor dispute,
governmental preemption of property in connection with a public emergency or
shortages of fuel, supplies, or labor, ACTS OF TERRORISM, or any other cause,
whether similar or dissimilar, beyond SUCH PARTY'S reasonable control; or (b)
any failure or defect in the supply, quantity or character of utilities
furnished to the Premises, or by reason of any requirement, act or omission of
any public utility or others serving the Property, beyond SUCH PARTY'S
reasonable control. THE REASONS LISTED IN CLAUSES (a) AND (b) ABOVE,
COLLECTIVELY, "FORCE MAJEURE"; PROVIDED, HOWEVER, THAT THE TERMS OF THIS
SENTENCE SHALL IN NO EVENT APPLY TO TENANT'S OBLIGATION TO PAY RENT OR ANY OTHER
SUMS DUE HEREUNDER, WHICH AMOUNTS TENANT SHALL REMAIN OBLIGATED TO PAY WHEN DUE
NOTWITHSTANDING THE EXISTENCE OF ANY FORCE MAJEURE EVENT.
18. DAMAGE OR DESTRUCTION.
18.1. NOTIFICATION AND REPAIR. Tenant shall give prompt
notice to Landlord and Agent of (a) any fire or other casualty to the Premises
or the Property, and (b) any damage to, or defect in, any part or appurtenance
of the Property's sanitary, electrical, HVAC, elevator or other systems located
in or passing through the Premises or any part thereof. Tenant shall be liable
for any claim, loss, damage, cost or expense resulting from Tenant's failure to
give Landlord the foregoing notice in a timely manner. Subject to the provisions
of SECTION 18.3 below, if either or both of the Property and the Premises is
damaged by fire or other insured CASUALTY, Landlord shall repair (or cause Agent
to repair) the damage (REPAIRS TO BE OF AN EQUAL OR BETTER QUALITY AS COMPARED
TO THE CONDITION OF THE PREMISES AND PROPERTY PRIOR TO THE CASUALTY EVENT) and
restore and rebuild the Property and/or the Premises (except for Tenant's
Property) with reasonable dispatch after (x) notice to it of the damage or
destruction and (y) the adjustment of the insurance proceeds attributable to
such damage. Subject to the provisions of SECTION 18.3 below, Tenant shall not
be entitled to terminate this Lease and no damages, compensation or claim
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shall be payable by Landlord for purported inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Premises
or of the Property pursuant to this Section. Landlord (or Agent, as the case may
be) shall use its diligent, good faith efforts to make such repair or
restoration promptly and in such manner as not to unreasonably interfere with
Tenant's use and occupancy of the Premises, but Landlord or Agent shall not be
required to do such repair or restoration work except during normal business
hours of business days.
18.2. RENTAL ABATEMENT. Provided that any damage to either
or both of the Property and the Premises is not caused by, or is not the result
of WILLFUL MISCONDUCT, acts or omissions by, any or all of Tenant and Tenant's
Parties, if (a) the Property is damaged by fire or other casualty thereby
causing the Premises to be inaccessible or (b) the Premises are partially
damaged by fire or other casualty, the Rent shall be proportionally abated to
the extent of any actual loss of use of the Premises by Tenant.
18.3. TOTAL DESTRUCTION. If the Property or the Premises
shall be totally destroyed by fire or other casualty, or if the Property shall
be so damaged by fire or other casualty that (in the reasonable opinion of a
reputable contractor or architect designated by Landlord): (i) its repair or
restoration requires more than 180 days or (ii) such repair or restoration
requires the expenditure of more than 50% of the full insurable value of the
Property immediately prior to the casualty or (iii) the damage (x) is less than
the amount stated in (ii) above, but more than 10% of the full insurable value
of the Property; and (y) occurs during the last two years of Lease Term,
Landlord and Tenant shall each have the option to terminate this Lease (by so
advising the other, in writing) within 10 days after said contractor or
architect delivers written notice of its opinion to Landlord and Tenant, but in
all events prior to the commencement of any restoration of the Premises or the
Property by Landlord. In such event, the termination shall be effective as of
the date upon which either Landlord or Tenant, as the case may be, receives
timely written notice from the other terminating this Lease pursuant to the
preceding sentence. If neither Landlord nor Tenant timely delivers a termination
notice, this Lease shall remain in full force and effect. Notwithstanding the
foregoing, if (A) any holder of a mortgage or deed of trust encumbering the
Property or landlord pursuant to a ground lease encumbering the Property
(collectively, "SUPERIOR PARTIES") or other party entitled to the insurance
proceeds fails to make such proceeds available to Landlord in an amount
sufficient for restoration of the Premises or the Property, or (B) the issuer of
any casualty insurance policies on the Property fails to make available to
Landlord sufficient proceeds for restoration of the Premises or the Property,
then Landlord may, at Landlord's sole option, terminate this Lease by giving
Tenant written notice to such effect within 30 days after Landlord receives
notice from the Superior Party or insurance company, as the case may be, that
such proceeds shall not be made available, in which event the termination of
this Lease shall be effective as of the date Tenant receives written notice from
Landlord of Landlord's election to terminate this Lease. Landlord shall have no
liability to Tenant, and Tenant shall not be entitled to terminate this Lease by
virtue of any delays in completion of repairs and restoration. For purposes of
this SECTION 18.3 only, "FULL INSURABLE VALUE" shall mean replacement cost, less
the cost of footings, foundations and other structures below grade.
18.4. INSURANCE PROCEEDS. Landlord shall not be obligated
to expend in repairs and restoration an amount in excess of the proceeds of
insurance recovered with respect to any casualty. Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any insurance coverage,
whether carried by Landlord or Tenant, for damage to either or both of the
Premises and the Property (excluding any proceeds for damage to Tenant's
Property). In the event that either or both of the Premises and the Property are
not repaired or reconstructed, all proceeds of insurance (excluding any proceeds
covering Tenant's Property), whether carried by Landlord or Tenant, shall be
payable to Landlord. Landlord's duty to repair the Premises and the Property
(excluding Tenant's Property) is limited to repairing the Premises to the
condition existing immediately prior to such fire or other casualty.
19. EMINENT DOMAIN. If the whole, or any substantial (as
reasonably determined by Landlord) portion, of the Property is taken or
condemned for any public use under any Law or by right of eminent domain, or by
private purchase in lieu thereof, and such taking would prevent or materially
interfere with the Permitted Use of the Premises, this Lease shall terminate
effective when the physical taking of said Premises occurs. If less than a
substantial portion of the Property is so taken or condemned, or if the taking
or condemnation is FOR A PERIOD LESS THAN ONE HUNDRED AND EIGHTY (180) DAYS,
(regardless of the portion of the Property affected), this Lease shall not
terminate, but the Rent payable hereunder shall be proportionally abated to the
extent of any actual loss of use of the Premises by Tenant. Landlord shall be
entitled to any and all payment, income, rent or award, or any interest therein
whatsoever, which may be paid or made in connection with such a taking or
conveyance, and Tenant shall have no claim against Landlord for the value of any
unexpired portion of this Lease. Notwithstanding the foregoing, any
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compensation specifically and independently awarded to Tenant for loss of
business or goodwill, or for its personal property, shall be the property of
Tenant.
20. SURRENDER AND HOLDOVER. On the last day of the Term, or upon
any earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises, (a) Tenant shall quit and surrender the Premises to Landlord
"broom-clean" and in good order, condition and repair (as defined by EXHIBIT E,
attached hereto and incorporated herein by reference), except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this Lease, (b) Tenant shall remove all of Tenant's Property
therefrom, except as otherwise expressly provided in this Lease, and (c) Tenant
shall surrender to Landlord any and all keys, access cards, computer codes or
any other items used to access the Premises. Landlord shall be permitted to
inspect the Premises in order to verify compliance with this SECTION 20 at any
time prior to (x) the Expiration Date, (y) the effective date of any earlier
termination of this Lease, or (z) the surrender date otherwise agreed to in
writing by Landlord and Tenant. The obligations imposed under the first sentence
of this SECTION 20 shall survive the termination or expiration of this Lease. If
any repairs are required to be performed in, to or at the Premises (pursuant to
the first sentence of this SECTION 20 or any other applicable provision of this
Lease). Tenant shall cause such repairs to be performed, to Landlord's
reasonable satisfaction PRIOR TO THE EXPIRATION OR TERMINATION OF THE TERM. If
Tenant fails to timely comply with the preceding sentence, then Landlord shall
have the right to cause the repairs to be performed, at Tenant's expense, and
all such expenses so incurred by Landlord shall bear interest (at the rate
specified in the second sentence of SECTION 22.3) from the date the expense is
incurred until the date paid, in full, by Tenant (inclusive of interest). If
Tenant remains in possession after the Expiration Date hereof or after any
earlier termination date of this Lease or of Tenant's right to possession: (i)
Tenant shall be deemed a tenant-at-will; (ii) Tenant shall pay 150% of the
aggregate of the Base Rent and Additional Rent last prevailing hereunder, and
also shall pay all actual damages sustained by Landlord, directly by reason of
Tenant's remaining in possession after the expiration or termination of this
Lease; (iii) there shall be no renewal or extension of this Lease by operation
of law; and (iv) the tenancy-at-will may be terminated by either party hereto
upon fifteen (15) days' prior written notice given by the terminating party to
the non-terminating party. The provisions of this SECTION 20 shall not
constitute a waiver by Landlord of any re-entry rights of Landlord provided
hereunder or by law.
21. EVENTS OF DEFAULT.
21.1. It shall be a default by Tenant under this Lease if
Tenant makes an assignment for the benefit of creditors, or files a voluntary
petition under any state or federal bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency is filed
against Tenant under any state or federal bankruptcy or insolvency law that is
not dismissed within 90 days, or whenever a petition is filed by or against (to
the extent not dismissed within 90 days) Tenant under the reorganization
provisions of the United States Bankruptcy Code or under the provisions of any
state or federal law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Code or
similar state or federal law, or whenever a receiver of Tenant, or of, or for,
the property of Tenant shall be appointed, or Tenant admits it is insolvent or
is not able to pay its debts as they mature.
21.2. Default Provisions. Each of the following shall
constitute a default by Tenant under this Lease: (a) Tenant fails to pay Rent or
any other payment AS AND when due hereunder; (b) TENANT'S ABANDONMENT OF THE
LEASED PREMISES PROVIDED, HOWEVER, TENANT SHALL NOT BE DEEMED TO HAVE ABANDONED
THE LEASED PREMISES IF TENANT VACATES THE LEASED PREMISES BUT CONTINUES TO
OPERATE THE AIR-CONDITIONING SYSTEMS AT REASONABLE TEMPERATURE SETTINGS AND
OTHERWISE CONTINUES TO MAINTAIN THE LEASED PREMISES, AND CONTINUES TO PAY RENT
AND ADDITIONAL RENT, AS REQUIRED HEREIN; or (c) Tenant fails, whether by action
or inaction, to timely comply with, or satisfy, any or all of the obligations
imposed on Tenant under this Lease (other than the obligation to pay Rent) for a
period of 30 days after Landlord's delivery to Tenant of written notice of such
default under this Section 21.2(b); provided, however, that if the default
cannot, by its nature, be cured within such 30 day period, but Tenant commences
and diligently pursues a cure of such default promptly within the initial 30 day
cure period, then Landlord shall not exercise its remedies under Section 22
unless such default remains uncured for more than 60 days after Landlord's
notice.
21.3. LANDLORDS DEFAULT. LANDLORD SHALL BE IN DEFAULT UNDER
THE TERMS OF THIS LEASE IF (i) IT FAILS, WHETHER BY ACTION OR INACTION, TO
TIMELY COMPLY WITH, OR SATISFY, ANY OF THE OBLIGATIONS IMPOSED ON LANDLORD UNDER
THIS LEASE OR (ii) IN THE EVENT OF ANY BREACH BY LANDLORD OF ITS REPRESENTATIONS
AND
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18
WARRANTIES, AND, IN EITHER CASE SUCH BREACH OR FAILURE OF PERFORMANCE REMAINS
UNCURED FOR A PERIOD OF THIRTY (30) DAYS AFTER LANDLORD'S RECEIPT OF WRITTEN
NOTICE OF SUCH DEFAULT OR SUCH LONGER PERIOD AS MAY BE REASONABLY REQUIRED TO
CURE SUCH DEFAULT.
22. RIGHTS AND REMEDIES.
22.1. LANDLORD'S CURE RIGHTS UPON DEFAULT OF TENANT. If
Tenant defaults in the performance of any of its obligations under this Lease,
and fails to cure such default on a timely basis (pursuant to SECTION 21.2),
Landlord, without thereby waiving such default, may (but shall not be obligated
to) perform the same for the account, and at the expense of, Tenant.
22.2. LANDLORD'S REMEDIES. In the event of any default by
Tenant under this Lease, Landlord, at its option, and after any applicable
notice and cure period (as required pursuant to SECTION 21.2), but without
additional notice or demand from Landlord, if any, as provided in SECTION 21.2
has expired, may, in addition to all other rights and remedies provided in this
Lease, or otherwise at law or in equity: (a) terminate this Lease and Tenant's
right of possession of the Premises; or (b) terminate Tenant's right of
possession of the Premises without terminating this Lease; provided, however,
that Landlord may, whether Landlord elects to proceed under Subsections (a) or
(b) above, relet the Premises, or any part thereof for the account of Tenant,
for such rent and term and upon such terms and conditions as are acceptable to
Landlord. In addition, for purposes of any reletting, Landlord is authorized to
decorate, repair, alter and improve the Premises to the extent deemed necessary
by Landlord, in its sole discretion. In the event of the termination of this
Lease by Landlord pursuant to (a) above, Landlord shall be entitled to recover
from Tenant (i) all damages and other sums that Landlord is entitled to recover
under any provision of this Lease or at law or in equity, including, but not
limited to, all fixed dollar amounts of Base Rent and Additional Rent accrued
and unpaid for the period up to and including such termination date; (ii) all
other additional sums payable by Tenant, or for which Tenant is liable, or in
respect of which Tenant has agreed to indemnify Landlord, under any of the
provisions of this Lease, that may be then owing and unpaid; (iii) all costs and
expenses (including, without limitation, court costs and attorneys' reasonable
fees) incurred by Landlord in the enforcement of its rights and remedies under
this Lease; and (iv) any damages provable by Landlord as a matter of law
including, without limitation, an amount equal to the positive difference, if
any, between (x) the discounted present value (at 6% per annum) of the Base Rent
provided to be paid for the remainder of the Term (measured from the effective
termination date of this Lease) and (y) the fair market rental value of the
Leased Premises (determined at the date of termination of this Lease) after
deduction (from such fair market rental value) of the projected costs and
expenses of reletting the Premises (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord. If Landlord elects to pursue its rights and
remedies under Subsection (b) above, and the Premises are relet and a sufficient
sum is not realized therefrom, then to satisfy the payment, when due, of Base
Rent and Additional Rent reserved under the Lease for any monthly period (after
payment of all Landlord's reasonable expenses of reletting), Tenant shall, in
Landlord's sole judgment, either (i) pay any such deficiency monthly or (ii) pay
such deficiency on an accelerated basis, which accelerated deficiency shall be
discounted at a rate of 6% per annum. If Landlord elects to pursue its rights
and remedies under Subsection (b) above, and Landlord fails to relet the
Premises, then Tenant shall pay to Landlord the sum of (x) the projected costs
of Landlord's expenses of reletting (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord and (y) the accelerated amount of Base Rent and
Additional Rent due under the Lease for the balance of the Term, discounted to
present value at a rate of 6% per annum. Tenant agrees that Landlord may file
suit to recover any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder shall not be any
defense to any subsequent action brought for any amount not theretofore reduced
to judgment in favor of Landlord. If Landlord elects to pursue its rights and
remedies under Subsection (b), then Landlord shall at any time have the further
right and remedy to rescind such election and pursue its rights and remedies
under Subsection (a). In the event Landlord elects, pursuant to clause (b) of
this SECTION 22.2, to terminate Tenant's right of possession only, without
terminating this Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's Property, Tenant's signs and other evidences of
tenancy, and take and hold possession thereof, as provided in SECTION 20 hereof;
and restore the Premises to the condition required hereunder, provided, however,
that such entry and possession shall not terminate this Lease or release Tenant,
in whole or in part, from Tenant's obligation to pay the Base Rent and
Additional Rent reserved hereunder for the full Term, or from any other
obligation of Tenant under this Lease. Any and all property that may be removed
from the Premises by Landlord pursuant to the authority of the Lease or of law,
to which Tenant is or may be entitled, may be handled,
Tenant Initial__________ Landlord Initial__________
19
removed or stored by Landlord at the sole risk, cost and expense of Tenant, and
in no event or circumstance shall Landlord be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay to Landlord, upon demand,
any and all expenses incurred in such removal and all storage charges against
such property so long as the same shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant not retaken from storage by
Tenant within 30 days after the end of the Term, however terminated, shall be
conclusively presumed to have been conveyed by Tenant to Landlord under this
Lease as in a xxxx of sale, without further payment or credit by Landlord to
Tenant.
22.3. ADDITIONAL RIGHTS OF LANDLORD. Any and all costs,
expenses and disbursements, of any kind or nature, incurred by Landlord or Agent
in connection with the enforcement of any and all of the terms and provisions of
this Lease, including attorneys' reasonable fees (through all appellate
proceedings), shall be due and payable (as Additional Rent) upon Landlord's
submission of an invoice therefor. All sums advanced by Landlord or Agent on
account of Tenant under this Section, or pursuant to any other provision of this
Lease, and all Base Rent and Additional Rent, if delinquent or not paid by
Tenant and received by Landlord when due hereunder, shall bear interest at the
rate of 5% per annum above the "prime" or "reference" or "base" rate (on a per
annum basis) of interest publicly announced as such, from time to time, by the
Bank One, or its successor ("DEFAULT RATE"), from the due date thereof until
paid, and such interest shall be and constitute Additional Rent and be due and
payable upon Landlord's or Agent's submission of an invoice therefor. The
various rights, remedies and elections of Landlord reserved, expressed or
contained herein are cumulative and no one of them shall be deemed to be
exclusive of the others or of such other rights, remedies, options or elections
as are now or may hereafter be conferred upon Landlord by law. In addition to
any provisions which may be additionally provided for by law, Tenant hereby
grants to Landlord a security interest, pledged for the payment of any and all
sums due under this Lease, into any and all personal property, goods,
furnishings or equipment which may be owned by Tenant and housed within the
Premises subject to this Lease and shall provide such UCC statements as Landlord
may require. In the event of default, Tenant hereby consents that Landlord may
immediately take possession of the Premises including personal property therein
contained and may dispose or otherwise liquidate the same for the payment of
Base Rent or Additional Rent with any surplus to inure to the benefit of the
Tenant. Tenant further consents to the entry of ex parte injunctive relief to
prohibit the removal of any personalty from the leased Premises at any time
wherein Tenant may be in default. Tenant further waives the provisions of the
posting of any bond by Landlord as provided for by Chapter 83 of the Florida
Statutes or otherwise by law. The effective date of both the statutory
Landlord's Lien and this aforementioned security interest shall be the inception
of Tenant's tenancy of the Premises, it being expressly agreed that any renewal,
extension or modification of this Lease shall not result in a novation nor in a
new lease, such that this effective date shall remain unchanged throughout
Tenant's tenancy. "NOTWITHSTANDING THE FOREGOING, LANDLORD AGREES THAT
LANDLORD'S LIEN IS AND SHALL BE SUBORDINATE TO THE SECURITY INTEREST OR LIEN OF
ANY CURRENT AND FUTURE LENDER WITH RESPECT TO TENANT'S EQUIPMENT, PERSONAL
PROPERTY AND RECEIVABLES". SUCH SUBORDINATION SHALL BE AUTOMATIC WITHOUT THE
NECESSITY OF AN ADDITIONAL WRITING, BUT LANDLORD WILL EXECUTE WITHIN SEVEN (7)
BUSINESS DAYS ANY DOCUMENT REASONABLY REQUIRED BY TENANT'S LENDER OR LESSOR WITH
RESPECT TO SUCH SUBORDINATION WITHOUT DELAY.
22.4. EVENT OF BANKRUPTCY. In addition to, and in no way
limiting the other remedies set forth herein, Landlord and Tenant agree that if
Tenant ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the federal
bankruptcy laws, as now enacted or hereinafter amended, then: (a) "adequate
assurance of future performance" by Tenant and/or any assignee of Tenant
pursuant to Bankruptcy Code Section 365 will include (but not be limited to)
payment of an additional/new security deposit in the amount of three times the
then current Base Rent payable hereunder; (b) any person or entity to which this
Lease is assigned, pursuant to the provisions of the Bankruptcy Code, shall be
deemed, without further act or deed, to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date of such
assignment, and any such assignee shall, upon demand by Landlord, execute and
deliver to Landlord an instrument confirming such assumption of liability; (c)
notwithstanding anything in this Lease to the contrary, all amounts payable by
Tenant to or on behalf of Landlord under this Lease, whether or not expressly
denominated as "Rent", shall constitute "rent" for the purposes of Section
502(b)(6) of the Bankruptcy Code; and (d) if this Lease is assigned to any
person or entity pursuant to the provisions of the Bankruptcy Code, any and all
monies or other considerations payable or otherwise to be delivered to Landlord
or Agent (including Base Rent, Additional Rent and other amounts hereunder),
shall be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the bankruptcy estate of Tenant. Any and all monies or
other considerations constituting Landlord's
Tenant Initial__________ Landlord Initial__________
20
property under the preceding sentence not paid or delivered to Landlord or Agent
shall be held in trust by Tenant or Tenant's bankruptcy estate for the benefit
of Landlord and shall be promptly paid to or turned over to Landlord.
23. BROKER. Tenant covenants, warrants and represents that the
broker set forth in SECTION 1.9(A) was the only broker to represent Tenant in
the negotiation of this Lease ("TENANT'S BROKER"). Landlord covenants, warrants
and represents that the broker set forth in SECTION 1.9(B) was the only broker
to represent Landlord in the negotiation of this Lease ("LANDLORD'S BROKER").
Landlord shall be solely responsible for paying the commission of Landlord's AND
TENANT'S Broker, PURSUANT TO SEPARATE AGREEMENTS. Each party agrees to and
hereby does defend, indemnify and hold the other harmless against and from any
brokerage commissions or finder's fees or claims therefor by a party claiming to
have dealt with the indemnifying party and all costs, expenses and liabilities
in connection therewith, including, without limitation, reasonable attorneys'
fees and expenses, for any breach of the foregoing. The foregoing
indemnification shall survive the termination or expiration of this Lease.
24. MISCELLANEOUS.
24.1. MERGER. All prior understandings and agreements
between the parties are merged in this Lease, which alone fully and completely
expresses the agreement of the parties. No agreement shall be effective to
modify this Lease, in whole or in part, unless such agreement is in writing, and
is signed by the party against whom enforcement of said change or modification
is sought.
24.2. NOTICES. Any notice required to be given by either
party pursuant to this Lease, shall be in writing and shall be deemed to have
been properly given, rendered or made only if personally delivered, or if sent
by Federal Express or other comparable commercial overnight delivery service,
addressed to the other party at the addresses set forth below (or to such other
address as Landlord or Tenant may designate to each other from time to time by
written notice), and shall be deemed to have been given, rendered or made on the
day so delivered or on the first business day after having been deposited with
the courier service:
If to Landlord: First Industrial Development Services, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Exec. Vice President of Operations
With a copy to: First Industrial Development Services, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Xx. Regional Development
Officer
With a copy to: Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx &
Xxxxxxxxx LLC
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: ASSET ACCEPTANCE, LLC
0000 XXXXXX XXXX
XXXXXX, XXXXXXXX 00000
ATTN: Mr. XXXX XXXXXX, CFO
WITH A COPY TO: ASSET ACCEPTANCE, LLC
0000 XXXXXX XXXX
XXXXXX, XXXXXXXX 00000
ATTN: X.X. XXXXXXX, CEO/PRESIDENT
Tenant Initial__________ Landlord Initial__________
21
24.3. NON-WAIVER. The failure of either party to insist, in
any one or more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the performance
of such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
24.4. LEGAL COSTS. Any party in breach or default under
this Lease (the "DEFAULTING PARTY") shall reimburse the other party (the
"NONDEFAULTING PARTY") upon demand for any legal fees and court (or other
administrative proceeding) costs or expenses that the Nondefaulting Party incurs
in connection with the breach or default, regardless whether suit is commenced
or judgment entered. Such costs shall include legal fees and costs incurred for
the negotiation of a settlement, enforcement of rights or otherwise.
Furthermore, in the event of litigation, the court in such action shall award to
the party in whose favor a judgment is entered a reasonable sum as attorneys'
fees and costs, which sum shall be paid by the losing party. Tenant shall pay
Landlord's attorneys' reasonable fees incurred in connection with Tenant's
request for Landlord's consent under provisions of this Lease governing
assignment and subletting, or in connection with any other act which Tenant
proposes to do and which requires Landlord's consent.
24.5. PARTIES BOUND. Except as otherwise expressly provided
for in this Lease, this Lease shall be binding upon, and inure to the benefit
of, the successors and assignees of the parties hereto. Tenant hereby releases
Landlord named herein from any obligations of Landlord for any period subsequent
to the conveyance and transfer of Landlord's ownership interest in the Property.
In the event of such conveyance and transfer, Landlord's obligations shall
thereafter be binding upon each transferee (whether Successor Landlord or
otherwise). No obligation of Landlord shall arise under this Lease until the
instrument is signed by, and delivered to, both Landlord and Tenant.
24.6. RECORDATION OF LEASE. Tenant shall not record or file
this Lease (or any memorandum hereof) in the public records of any county or
state.
24.7. SURVIVAL OF OBLIGATIONS. Upon the expiration or other
termination of this Lease, neither party shall have any further obligation nor
liability to the other except as otherwise expressly provided in this Lease and
except for such obligations as, by their nature or under the circumstances, can
only be, or by the provisions of this Lease, may be performed after such
expiration or other termination.
24.8. GOVERNING LAW; CONSTRUCTION. In the event that it is
necessary to bring suit to enforce the terms of the Lease, the parties hereto
agree that any court of competent jurisdiction situated in the County named in
SECTION 1.5 shall have venue of such action. This agreement shall be deemed to
have been made in the County named in SECTION 1.5 and shall be interpreted, and
the rights and liabilities of the parties here determined, in accordance with
the laws of the State of Florida. If any provision of this Lease shall be
invalid or unenforceable, the remainder of this Lease shall not be affected but
shall be enforced to the extent permitted by law. The captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. Each covenant, agreement, obligation, or other provision of
this Lease to be performed by Tenant, shall be construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require. This Lease may be executed in
counterpart and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument.
24.9. TIME. Time is of the essence for this Lease. If the
time for performance hereunder falls on a Saturday, Sunday or a day that is
recognized as a holiday in the state in which the Property is located, then such
time shall be deemed extended to the next day that is not a Saturday, Sunday or
holiday in said state.
24.10. AUTHORITY OF TENANT. If Tenant is a corporation,
partnership, limited liability company, association or any other entity, it
shall deliver to Landlord, concurrently with the delivery to Landlord of an
executed Lease, certified resolutions of Tenant's directors or other governing
person or body (i) authorizing
Tenant Initial__________ Landlord Initial__________
22
execution and delivery of this Lease and the performance by Tenant of its
obligations hereunder and (ii) certifying the authority of the party executing
the Lease as having been duly authorized to do so.
24.11. WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT,
TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO
THIS LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE
PREMISES.
24.12. FINANCIAL INFORMATION. From time to time during the
Term, Tenant shall deliver to Landlord information and documentation describing
and concerning Tenant's financial condition, and in form and substance
reasonably acceptable to Landlord, within ten (10) days following Landlord's
written request therefor NOT MORE THAN ONCE EACH CALENDAR YEAR, UNLESS TENANT IS
IN MONETARY DEFAULT. FINANCIAL INFORMATION SHALL BE KEPT CONFIDENTIAL AND SHARED
ONLY WITH LANDLORD'S LAWYERS, ACCOUNTANTS AND ACTUAL AND PROSPECTIVE LENDERS.
24.13. CONFIDENTIAL INFORMATION. Tenant agrees to maintain
in strict confidence the economic terms of this Lease and any or all other
materials, data and information delivered to or received by any or all of Tenant
and Tenants' Parties either prior to or during the Term in connection with the
negotiation and execution hereof. The provisions of this SECTION 24.13 shall
survive the termination of this Lease.
24.14. SUBMISSION OF LEASE. Submission of this Lease to
Tenant for signature does not constitute a reservation of space or an option to
lease. This Lease is not effective until execution by and delivery to both
Landlord and Tenant.
24.15. JOINT AND SEVERAL LIABILITY. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant hereunder.
24.16. INTENT OF PARTIES. It is the intention and purpose of
the respective parties hereto that this Lease shall be a "Net Lease" to the
Landlord (UNLESS OTHERWISE SPECIFIED WITHIN THE LEASE), and all REASONABLE cost
or expense of whatever character or kind, general and special, ordinary and
extraordinary, foreseen and unforeseen and of every kind and nature whatsoever
that may be necessary in or about the operation of the Premises are to be viewed
in light of such intention and purpose so as to construe this Lease as a "Net
Lease".
24.17. RADON DISCLOSURE: In accordance with Florida Statute
404.056 effective January 1, 1989, the following information is provided:
Radon Gas: Radon is a naturally occurring radioactive
gas that when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
24.18. RIDERS. All Riders and Exhibits attached hereto and
executed (or initialed) both by Landlord and Tenant shall be deemed to be a part
hereof and hereby incorporated herein.
25. OPTION TO EXTEND. TENANT SHALL HAVE AN OPTION TO EXTEND THE
TERM PURSUANT TO THE TERMS AND CONDITIONS SET FORTH ON EXHIBIT F ATTACHED HERETO
AND MADE A PART HEREOF.
26. EXPANSION RIDER. LANDLORD AND TENANT ACKNOWLEDGE AND AGREE
THAT, WITHIN THIRTY (30) DAYS AFTER THE DATE OF THIS LEASE, LANDLORD AND TENANT
SHALL USE GOOD FAITH, REASONABLE EFFORTS TO NEGOTIATE AND ENTER INTO AN
AMENDMENT TO THIS LEASE ON SUBSTANTIALLY THE SAME TERMS AND CONDITIONS AS ARE
SET FORTH ON THAT CERTAIN TERM SHEET FOR EXPANSION OPTION ATTACHED HERETO AS
EXHIBIT G AND INCORPORATED HEREIN BY REFERENCE.
[Signature Page to Follow]
Tenant Initial__________ Landlord Initial__________
23
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD:
Signed in the presence of: FIRST INDUSTRIAL DEVELOPMENT SERVICES,
INC., a Maryland corporation
______________________________________
Witness:
______________________________________ By: _______________________________
Witness XXXXXX X. XXXXXXX
Its: Sr. Regional Development Officer
TENANT:
ASSET ACCEPTANCE, LLC, a Delaware
limited liability company
______________________________________ By: _______________________________
Witness Signature
_______________________________
______________________________________ Print Name
Witness
Its: _______________________________
Title
_______________________________
Date
Tenant Initial__________ Landlord Initial__________
S-1
LEASE EXHIBIT A-1
PROPERTY
PREMISES: Approximately 52,280 square feet, consisting of approximately
52,280 square feet of office space (as illustrated on the
Floor Plan on Page 2 hereof), in the building with the address
of 0000 X. XXXXXXXXXX XXXX, XXXXXXXXX, XXXXXXX 00000 (the
"Building").
PROPERTY: The business park commonly known as FIRSTPARK @ XXXXXXX,
having the LEGAL description given on Page 3 hereof.
ZONING: County of Hillsborough
Zoning Classification PD-MU
Tenant Initial__________ Landlord Initial__________
A-1-1
LEASE EXHIBIT A-2
FLOOR PLAN
SEE ATTACHED
Tenant Initial__________ Landlord Initial__________
A-2-1
LEASE EXHIBIT A-3
LEGAL DESCRIPTION
FirstPark @ Xxxxxxx
Buildings I & II
A parcel of land lying in Sections 31 and 32, Township 29 South, Range 20 East,
Hillsborough County, Florida, and being more particularly described as follows:
Commencing at the Northeast corner of Section 31, thence along the Northerly
line of Section 31, N89 degrees 28'15"W for 704.92 feet; thence departing said
Northerly line, S00 degrees 31'48"W for 40.00 feet to a point on the southerly
right-of-way line of Causeway Boulevard and the Point of Beginning; thence along
said Southerly right-of-way line, S00 degrees 32'53"W for 28.36 feet; thence
S84 degrees 20'21"E for 888.18 feet to a point on Westerly right-of-way line of
Interstate 75, said point being on a non-tangent curve, concave Northwesterly,
having a radius of 3607.89 feet, a central angle of 00 degrees 21'43", an arc
distance of 22.79 feet and a chord bearing and distance of S22 degrees 38'36"
West, 22.79 feet to a point of intersection with a non-tangent curve, said curve
concave Northwesterly, having a radius of 11173.16 feet and a central angle of
02 degrees 28'38", an arc length of 483.09 feet and a chord bearing and distance
of S24 degrees 47'44"W for 483.05 feet to its intersection with a non-tangent
line; thence S26 degrees 01'43"W for 68.29 feet; thence S89 degrees 41'34"W for
861.26 feet to the Easterly right-of-way line of Falkenburg Road; thence along
the Easterly right-of-way line of Xxxxxxxxxx Xxxx X00 degrees 02'04"E for 579.17
feet; thence N45 degrees 17'05"E for 35.20 feet to a point on the Southerly
right-of-way line of Causeway Boulevard; thence along said Southerly
right-of-way line S89 degrees 28'15"E for 216.04 feet to the Point of Beginning.
Containing 13.06+/- Acres of land.
Tenant Initial__________ Landlord Initial__________
A-3-1
LEASE EXHIBIT B
RULES & REGULATIONS RIDER
1. No part of the Premises or Common Areas shall be used for any purpose
other than as permitted by the zoning regulations of the County in
which the Premises is located for the type of zoning given in Exhibit A
or as stipulated in the Lease.
2. No materials or products shall be manufactured or stored that
constitute a nuisance or cause the emission of noxious odors or gases
or smoke. No burning of materials, outside or inside the Premises, will
be permitted.
3. No fence, wall, loading facility, outside storage facility, or
permanent improvements will be erected or constructed without the prior
written approval of the Landlord.
4. Tenants will keep their Premises safe, clean, neat and provide for the
removal of trash from their Premises. No pets will be allowed on the
Premises.
5. NO MATERIALS, SUPPLIES OR PRODUCTS SHALL BE STORED OUTSIDE WITHOUT THE
PRIOR WRITTEN APPROVAL OF THE LANDLORD.
6. Tenants shall not cause or make an excessive noise, odor, harmful
sewage or vibration that could be deemed objectionable to other
tenants.
7. No signs are to be erected other than the standard format. Signs are
not to be erected other than on the space provided for the Premises.
8. Each tenant is to maintain a pest control program appropriate to their
Use.
9. A fifteen (15) mile-per-hour speed limit is to be observed within the
Property.
10. No employee parking will be permitted on the streets or in the Property
other than in the areas designated by the Landlord.
11. All enterprises are to be conducted in a business-like manner.
Tenant Initial__________ Landlord Initial__________
B-1
LEASE EXHIBIT C
TENANT OPERATIONS INQUIRY
Tenant Name:
Tenant SIC Code/Description: ASSET ACCEPTANCE, LLC
Property Address: 0000 XXXXX XXXXXXXXXX XXXX, XXXXXXXXX, XXXXXXX 00000
Property Number/Region: #_________ TAMPA
1. Name of Company (if different from above) ________________________________________________________
2. Address (local):
__________________________________________________________________________________________________
Phone (local)_____________________________________________________________________________________
3. Address (corporate):______________________________________________________________________________
Phone (corporate)_________________________________________________________________________________
4. What is your business (brief description): _______________________________________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
5. What operations will you maintain at the proposed facility? ______________________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
6. Has your business received any Notices of Violation of environmental laws from municipal or state
agencies regarding operations at your current facility? If so, explain: _________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
7. Describe any assembly, manufacturing, machining, painting, printing or mechanical repair
activities that will be part of your business operations at the proposed facility:________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
8. Will your employees operate electrical equipment that contains PCB's? YES NO
9. Will your business operate one or more Underground Storage Tanks (UST's) at the proposed facility?
YES NO
Tenant Initial__________ Landlord Initial__________
C-1
10. Will your business operate one or more Aboveground Storage Tanks (AST's) at the proposed facility?
YES NO
11. TENANT CHEMICAL INVENTORY AT PROPOSED FACILITY - (make additional
copies, if required). You may exclude small quantities of toner and other office
supplies)
What will be the What will be the
Chemicals average quantity on the maximum quantity on What will be the annual How will the chemical be
(by name where available) proposed premises? the proposed premises? quantity used? stored?
---------------------------------------------------------------------------------------------------------------------------------
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
Tenant Initial__________ Landlord Initial__________
C-2
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
Storage Methods (use all that apply): A) 55 gallon drum; B) 20 gallon drum;
C)2-5 gallon pallet/container; D) bulk dry packages; E) cartoned small
containers (less than 2 gallons or 10 pounds) on pallets; F) on floor; G) on
racks; H)Underground Storage Tank (UST); I) Above Ground Storage Tank (AST); J)
other(please describe).
PLEASE NOTE: OUTSIDE STORAGE OF ANY NATURE IS NOT PERMITTED.
12. Describe any pollution control equipment that will be used at the
proposed facility (example: paint spray booth, fume hood, waste water
treatment). ___________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
13. Will your operations How will the How will the wastes
generate any chemical chemical wastes be disposed?
wastes that require be stored on-site? (example: recycled,
special disposal? landfilled, incinerated)
(example: waste oil,
waste solvent)
_____________________ __________________ ________________________
_____________________ __________________ ________________________
_____________________ __________________ ________________________
_____________________ __________________ ________________________
Tenant Initial__________ Landlord Initial__________
C-3
14. Does your business have an EPA Hazardous Waste Generator ID Number? YES NO
15. What spill prevention and containment measures will be in place for the chemicals and wastes stored
at the proposed facility? (describe briefly) __________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
16. Does your business have an Emergency Response or Contingency Plan in place in the event of a chemical
incident (please provide a copy) YES NO
16. Does your business have any type of Hazardous Materials training program for your employees? (describe
briefly): ____________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
18. Do you have copies of all Material Safety Data Sheets (MSDS) at your facility for the chemicals listed
in question #7? (Please provide copies): YES NO
19. Does your business carry environmental insurance coverage in the event of a chemical incident?
YES NO
20. Will you be required to make filings and notices or obtain permits as required by Federal and/or State
regulations for the operations at the proposed facility? Specifically:
a. XXXX Title III Section 312 (Tier II) reports YES NO
(> 10,000 lbs. of hazardous materials STORED at any one time)
b. XXXX Title III Section 313 (Tier III) Form R reports YES NO
(> 10,000 lbs. of hazardous materials USED per year)
c. NPDES or SPDES Stormwater Discharge permit YES NO
(answer "No" if "No-Exposure Certification" filed)
21. This form was prepared by the undersigned as a complete and correct description of Tenant's proposed
operations at the location noted, and the Landlord may rely on this information.
___________________________________ ______________________________
Signature Print Name
___________________________________
Date
Tenant Initial__________ Landlord Initial__________
C-4
LEASE EXHIBIT D
ASSET ACCEPTANCE
TENANT IMPROVEMENTS
FIRSTPARK @ XXXXXXX
AUGUST 22, 2003
SCOPE OF WORK
These outline specifications have been created to define the tenant build out
work to be included in a turnkey arrangement between First Industrial and Asset
Acceptance. All items addressed shall be part of the tenant build out cost.
This outline specification prepared by First Industrial Development Services
(Contractor) defines the scope of work for the design and construction of
52,280 square feet of office space at FirstPark @ Xxxxxxx on Falkenburg Road
and is based on a CAD floor plan, file NewTampa2.dwg, prepared by Xxxxxxx
Xxxxxx and sent via email on May 2, 2003.
All material and equipment incorporated into this project shall be new. The
Contractor shall guarantee all work to be free from defects of workmanship and
material for one (1) year after completion.
GENERAL CONDITIONS:
General
Contractor will give to the proper authorities all notices required by law
relative to the work of the project; obtain and pay for all building permits
and licenses apply for other permits. Environmental use permits and permits
required in conjunction with data processing or office activities will be the
responsibility of Asset Acceptance. Additionally, any permits required for the
computer installation, security system or furniture system installation
including wiring would also be the responsibility of Asset Acceptance.
Codes
Contractor will be responsible for complying with local, state and federal
building codes including the Standard Building Code and the American
Disabilities Act.
Insurance
Contractor will maintain all required insurance as mandated by the State of
Florida.
Clean Up
Excessive accumulation of waste materials and rubbish will be avoided by
periodic removal from building and construction site. When the building project
is substantially completed, Contractor will remove all debris, tools,
scaffolding, and surplus materials, leaving the project in "wiped clean"
condition. Contractor will clean all exterior windows, vacuum all carpeting;
clean and apply two coats of wax to all vinyl composition tile flooring; clean
all bathroom mirrors, fixtures and toilet partitions. All other cleaning if
desired will be the responsibility of the Client.
Asset Acceptance LLC Tenant Initial ______ Landlord Initial _______
D-1
Design and Engineering
Contractor in conjunction with Xxxx X. Xxxxx and Associates Architects, Inc.
will facilitate preparation of a complete set of working drawings to include
architectural, plumbing, HVAC, electrical, fire protection and structural
review where required. Prior to commencing design of the tenant improvements
the tenant will supply First Industrial design development drawings which
depict the general space-planning layout. An allowance to complete the required
build out has been included as part of this proposal. In addition to a layout
drawing, the tenant shall supply specifications for all furniture and equipment
which will be included in the build out or provided by others under and
arrangement with the Client. Changes to the space plan after commencement of
the design may necessitate additional fees.
Work not included with the Design and Engineering services will include data or
security. All fixture furnishing and equipment space planning to be provided by
the Client.
INTERIOR FINISHES
Quality of Materials
All finish materials installed in the tenant development build out shall meet
the following quality standards. The tenant at additional cost can make
upgrades to these standards. Actual selections to be approved by Tenant prior
to purchase and installation.
1. Paint - All walls unless otherwise noted shall be painted with Xxxxxxx
Xxxxxxxx Latex Pro-Mar 200 or better. One coat of primer and one coat of
semi-gloss finish shall be applied to the wall surfaces. Doors and jambs
shall receive two coats of Minwax Golden Oak stain.
2. Carpet - Xxxx Products - Division of Philadelphia Carpet, glue down,
textured loop pile carpet. Style shall be Lynchburg 2602 Color Blue
Diamond. Rooms where tenant requires borders or carpet upgrades can be
supplied at an additional cost.
3. VCT - Storage, Restrooms and beak room shall receive Azrock Standard
Series Colors vinyl composition tile. Tile shall be 12" x 12" x 1/8",
conforming to ASTM F 1066, composition 1, class 2. Rooms where the tenant
requires a pattern of multi colors can be supplied at an additional cost.
Color shall be similar to Xxxxxxxxx Excelon Vinyl 12 X 12 Pattern 51807.
4. Vinyl Wall Base - All tenant areas shall receiver wall base equal to
Xxxxxx 4" vinyl base.
5. Millwork - Toilet partitions bathroom vanities, counter tops and cabinetry
shall be constructed with plastic laminate by Wilsonart, and colors as
selected from manufacturer's standard solid color.
6. Wood doors - Interior tenant doors shall be 3'-0" x 6'-8", pre-hung, solid
core birch veneer with stain grade casings and jambs.
7. Interior windows - Provide up to 34 each 5' x 4' fixed windows at offices.
8. Finish Hardware - All tenant door hardware will be as manufactured by
Ultra to meet ADA requirements, with function appropriate for intended
use. Locksets will be lever style hardware with heavy-duty cylinder type
with a polished brass finish. Landlord to furnish Tenant with a key plan
upon receipt of Tenant's key and lock requirements.
Asset Acceptance LLC Tenant Initial_____ Landlord Initial_____
D-2
TENANT AREA FINISHES
All tenant walls shall be constructed 3 6/8", 26 Ga. metal studs spaced at 24"
o.o. with 1/2" gypsum wall board and be 9'-0" high. Interior partition layout
shall be as indicated in the above referenced floor plan. Tenant areas shall
receive vinyl base and Celotex BET 197(R) (2' X 4') or equal acoustical
ceilings with R-19 fiberglass batt insulation unless otherwise noted. The floor
and wall finishes shall be as outlined below:
Offices
- Floors -- Floor finish shall be carpet.
- Partition Height -- wall shall terminate above ceiling.
- Wall Finish -- Xxxxxxx Xxxxxxxx Latex Pro-Mar 200
- Ceiling -- Celotex BET 197(R) 2' X 4' tile with white grid and R-19 fiberglass
batt insulation
- Doors & Frame -- Building Standard pre-xxxx xxxx door
- Window (5' wide x 4' high) in bronze aluminum frame
- Electrical -- Three (3) duplex receptacles and one (1) Data conduit
Xxxx Xxxxxx Xxxx
- Xxxxxx -- Xxxxx finish shall be carpet.
- Partition Height -- none
- Wall Finish -- Xxxxxxx Xxxxxxxx Latex Pro-Mar 200
- Ceiling -- Celotex BET 197(R) 2' X 4' tile with white grid and R-19 fiberglass
batt insulation
- Doors & Frame -- none
- Electrical -- one junction box above ceiling with three circuits per work
group to match existing Tampa facility.
- One data pole and power pole per new furniture grouping
Restrooms
- Floors -- Azrock Standard Series Vinyl Composition Tile
- Partition Height -- wall shall extend to above ceiling, partitions to be
insulated
- Wall Finish -- Xxxxxxx Xxxxxxxx Latex Pro-Mar 200
- Ceiling -- Celotex BET 197(R) 2' X 4' tile with white grid and R-19 fiberglass
batt insulation
- Doors & Frame -- Building Standard wood door and frame
- Millwork -- 48 lnft of restroom vanities; 32 toilet and urinal stall
partitions
- One GFI outlet at each vanity
Break Room
- Floors -- Azrock Standard Series Vinyl Composition Tile
- Partition Height -- wall shall extend to above ceiling, partitions to be
insulated
- Wall Finish -- Xxxxxxx Xxxxxxxx Latex Pro-Mar 200
- Ceiling -- Celotex BET 197(R) 2' X 4' tile with white grid and R-19 fiberglass
batt insulation
- Doors & Frame -- Building Standard wood door and frame
- Millwork -- 20 lnft of base and upper cabinets at kitchenette area
- Ten GFI electrical outlets at counter (six will be dedicated for microwaves)
- Five dedicated circuits with ten single receptacles for vending machines
- Commercial grade garbage disposal will be furnished at break room sink
Asset Acceptance LLC Tenant Initial____ Landlord Initial____
D-3
ROUGH CARPENTRY
Walls supporting millwork or miscellaneous specialties shall receive wood
blocking.
GLASS AND WINDOW TREATMENTS
Tint all exterior windows
Provide mini blinds at all exterior and interior offices to match existing Tampa
facility, install windows at 23 each -- 10' x 12' storefront sections at
overhead door opening
SPECIALTIES
Folding Partition
A sound insulated folding wall with vinyl finish shall be provided at Training
Room. An allowance of $17,600 has been included for this installation and the
required structural supports and structural modifications to the building to
accommodate the partition loads.
Motorized Projection Screen
Provide two motorized recessed projection screen, 8' wide x 8' high. An
allowance of $3,000 per unit has been included for this work and the required
structural supports.
Building Exterior Signage
One exterior, building park standard, sign is included. Interior signage, other
than that required by code is not included.
FURNISHINGS
Office Furniture
The purchase, installation and electrical connection of the modular furniture,
desks, office furniture, filing systems and office equipment are specifically
excluded from this scope.
Blinds and window tint at exterior windows conforming to the park standard are
included. No blinds are included at interior windows.
FIRE PROTECTION SYSTEM
Fire Sprinkler System
The layout of the sprinkler heads shall be revised to conform to tenant room
layout. Building system is designed to accommodate Group II ordinary hazard in
accordance with NFPA 13.
PLUMBING SYSTEM
Women's -- ADA compliant restroom with one (1) handicapped water closets; seven
(7) standard water closets; one (1) handicapped lavatory and four (4) sinks in
vanity. Two such restrooms shall be provided.
Men's -- ADA compliant restroom with one- (1) handicapped water closet; three
(3) standard water closets; four (4) urinals; one (1) handicapped lavatory and
four (4) sinks in vanity.
All water closets shall be commercial grade pressure assisted flush tank models.
Asset Acceptance LLC Tenant Initial ____ Landlord Initial ____
D-4
All restrooms include mirrors, grab bars at handicapped water closet fixtures,
paper towel and toilet paper dispensers.
Installations of two (2) break room sinks.
Provide one under counter water heater at each restroom area.
Drinking fountains included outside of each bathroom area.
HEATING, VENTILATING AND AIR CONDITIONING SYSTEM
The tenant build out will include split HVAC system at a rate of 300 square feet
+/- per ton. Air handlers will be hung at 11'-6" above finish floor and
condensers will be mounted on the roof. Ductwork will be R-6 duct board & flex
duct. Registers to be R-6 perforated supply diffusers, return grills to be high
velocity Model CC5 registers or equal.
HVAC systems shall have one-year parts and labor warranty and a five-year
warranty on the compressors.
Complete installation of up to 175 tons of split HVAC systems for the office
area.
Complete installation of a 5 ton split HVAC system at the computer room. Final
system design shall be capable of handling load for a 500 SF computer room.
Ceiling mounted exhaust fans at restrooms will be provided.
ELECTRICAL SYSTEM
Power Distribution
Power distribution from building main is included in the tenant improvement
scope. A 2000 AMP, 208 V, 3 Phase service will be provided and distributed to
ten 200 amp subpanels located along the south wall of the building.
Includes relocation of Asset Acceptance existing UPS system to the new
building. UPS unit will be disconnected from present location and replace with
a new 120/208V, 200 amp, 42-circuit panel. All existing circuits will be re-fed
to new permanent panel.
Includes electrical connections to back up generator and transfer switch.
Generator and transfer switch to be purchased and installed by Landlord and all
costs to be reimbursed to Landlord by Tenant.
Telephone Conduit
Conduit is provided from building utility service area to the rear warehouse
wall of each bay. Service beyond this point is by others.
LIGHTING SYSTEM
Building Lighting
Office areas with ceilings will receive 2x4 three T8 lamp, electronic ballast
fixtures with acrylic lens. 615 fixtures have been included. Exit and emergency
lighting will be provided as required by code.
Asset Acceptance LLC Tenant Initial ____ Landlord Initial ____
D-5
Devices
Data Drops @ New Partitions: 60 each
Switches: 60 each
3-way switches: 10 each
Duplex Receptacles: 130 each
Dedicated Receptacles: 22 each
GFI Outlets: 8 each
3 circuit junction boxes 50 each
Data or power poles 68 each
Clarifications / Exceptions
The shell building for the above referenced tenant improvements will be a Xxxxxx
pre-engineered steel building with Xxxxxx'x MR24 standing seam metal roof.
Xxxxxx Manufacturing provides a 30 year material warranty with the roof sheet
materials used in the MR24 system. Exterior walls to be of concrete tiltwall
construction.
A covered smoking area will be provided at the east end of the building. Area
will be comprised of a 12' x 20' aluminum open wall structure.
Items not included
The following are specifically excluded from the contractor's proposal:
- Setting, wiring, plumbing or connections of tenant equipment or furnishings,
including Client's equipment, such as computers, CRT's, computer
peripherals, process equipment, telephone equipment
- Alarm systems or fire alarm systems
- Raised computer room floor
- Furniture and office furnishings including de-mountable landscape office
partitioning, power poles, kitchen equipment, appliances, vending machines,
racking and shelving, audiovisual equipment
- Relocation and connection of existing telephone/data poles and power poles by
others
- Power connections to equipment and power wiring of cubical furniture
- Trash containers or compactors
- Accent lighting
- Vinyl wall covering
- Tenant specified emergency generator and transfer switch to be purchased and
installed by Landlord and such costs to be reimbursed to Landlord by Tenant
- FirstPark @ Xxxxxxx is a Verizon SmartPark. Tenant shall be responsible for
coordinating with Verizon for services.
- Tenant to establish service with Utility Companies. Landlord to reimburse
Tenant for such utilities up to the lease commencement date.
Asset Acceptance LLC Tenant Initial____ Landlord Initial____
D-6
LEASE EXHIBIT E
BROOM CLEAN CONDITION AND REPAIR REQUIREMENTS
1. Park rules do not permit decals, stickers or other material to be
affixed to the storefront glass. Should any have been displayed, they
should be removed, without damage to, or residue remaining upon, the
reflective film.
2. All exterior and interior locks and all door hardware should be in good
repair and operating condition. If tenant has rekeyed so that current
locks are not compatible with our master keying system, we will need to
rekey the exterior locks to our master system, at tenant's expense.
Also, keys are needed for each interior lock, including doors, a/c
thermostat boxes, towel holders, etc.
3. Interior glass, mullions, xxxxx and mini-blinds should be cleaned.
Damaged blinds should be repaired, or replaced, if required.
4. Alarm system hardware, including control panels, keypads and sensors,
should be deactivated and removed, and any wall or other damage from
mounting should be repaired.
5. HVAC system must be in good working order. Filters must be changed, and
all thermostats must be in working order. Tenant must supply Landlord
with maintenance records.
6. All plumbing should be operational and free from leaks. Fixtures should
not be dented, cracked or chipped. Water heater must work.
7. All ceiling lights should be fully operational, including all lamps.
Lighting configuration should be as shown by space plan included with
Lease.
8. All ceiling tile and grid should be complete, intact and undamaged and
free of excessive dust from lack of changing filters. (No ceiling tiles
may be missing or damaged.)
9. Wall surfaces should be free of mounting brackets, or holes therefrom.
Water or impact damage to walls should be repaired. Patchwork should be
neat, to blend in with existing wall finish. Holes in doors or trim
should be similarly repaired.
10. Vinyl or other wood base or molding should be complete, intact and free
from damage.
11. Carpets should be thoroughly vacuumed. If heavily soiled, carpet will
require shampooing or other soil-extraction treatment. If stains can be
"spot removed", this may be acceptable.
12. Vinyl or other floor tile should be cleaned.
13. Restrooms should be thoroughly cleaned, as in the normal housekeeping
routine for the suite. This includes fixtures, mirrors, vanity and
cabinet tops and interiors.
14. All mechanical equipment should be in good operating order. This
includes, but is not limited to, sump pumps, hoists and lifts, dock
levelers, motorized dampers and exhaust fans.
15. Warehouse, shop, plant and other concrete floors should be cleaned of
any sediment adhering to the surface, and then swept clean.
16. Holes in warehouse walls should be patched.
Tenant Initial__________ Landlord Initial__________
X-0
00. Overhead doors must be free of any cracked lumber, broken or dented
panels. Overhead door springs, rollers, tracks, motorized door
operator, and all other items pertaining to the overhead door must also
be in good working condition. Interior surfaces should be reasonably
clean and free from dirt or other sediment.
18. Any shelving, partitions or other structures within the warehouse must
be in good condition, meeting all building and safety codes, or else be
repaired or removed, at the option of FIRST INDUSTRIAL.
19. Cobwebs should be removed from all office and warehouse areas.
20. All EXIT and emergency lighting should be fully operational.
21. All fire extinguishers should be fully charged, and mounted as per
code.
22. All debris must be removed and properly disposed of by tenant.
23. Any damage to the exterior of the suite, including the building
structure, light fixtures, dock bumpers, stairs, truck xxxxx,
guardrails, bollards, or air conditioning equipment, caused by the
tenant, its agents or employees, will be repaired by FIRST INDUSTRIAL
at tenant's expense.
24. No fixtures of any type may be removed from the suite without written
permission from FIRST INDUSTRIAL. This includes all fixtures, whether
provided by the landlord or tenant. A fixture is anything that is
attached to the building or premises.
25. Any and all tenant-provided improvements must meet building code
requirements as well as FIRST INDUSTRIAL standards for construction, be
brought to meet same, or be demolished and removed and the premises
restored, at FIRST INDUSTRIAL'S option.
Tenant Initial__________ Landlord Initial__________
E-2
LEASE EXHIBIT F
OPTION TO EXTEND
1. TENANT SHALL HAVE THE OPTION TO EXTEND THE LEASE TERM FOR TWO (2)
ADDITIONAL PERIODS OF FIVE (5) YEARS (THE "RENEWAL TERM") WITH RESPECT
TO THE PREMISES, WHICH MUST INCLUDE ANY SPACE ADDED AS PART OF THE
PREMISES, UPON THE SAME TERMS AND CONDITIONS AS PROVIDED IN THE LEASE
(UNLESS HEREAFTER CHANGED OR MODIFIED BY A MUTUAL AGREEMENT IN
WRITING), EXCEPT THAT, FOR THE EXTENDED TERM:
a. UPON EXERCISE OF THE SECOND OPTION TO EXTEND THE
LEASE TERM, THE LEASE, AS EXTENDED, SHALL NOT CONTAIN
ANY ADDITIONAL OPTION TO EXTEND AS PROVIDED IN THIS
RIDER;
b. THE ANNUAL BASE RENT SHALL BE THE ANNUAL BASE RENT
PAYABLE WITH RESPECT TO THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EXPIRATION OF THE PRIOR
TERM OF THE LEASE, ADJUSTED TO MARKET RENT OVER THE
PREVIOUS YEARS.
2. THE EXERCISE OF THE OPTIONS SET FORTH IN THIS RIDER SHALL ONLY BE
EFFECTIVE UPON, AND IN STRICT COMPLIANCE WITH, THE FOLLOWING TERMS AND
CONDITIONS:
a. WRITTEN NOTICE OF SUCH ELECTION (THE "EXTENSION
NOTICE") SHALL BE GIVEN BY TENANT TO LANDLORD NO
LATER THAN FIVE (5) MONTHS PRIOR TO THE EXPIRATION
DATE OF THE INITIAL TERM OF THE LEASE AND SUBSEQUENT
RENEWAL PERIODS. TIME SHALL BE OF THE ESSENCE IN
CONNECTION WITH THE EXERCISE OF ANY ELECTION BY
TENANT UNDER THIS RIDER.
b. AT THE TIME OF TENANT GIVING LANDLORD WRITTEN NOTICE
OF ITS ELECTION TO EXTEND THE LEASE TERM AND UPON THE
EXPIRATION OF THE INITIAL TERM, OR ANY EXTENDED TERM
AS APPLICABLE, THE LEASE SHALL BE IN FULL FORCE AND
EFFECT AND TENANT SHALL NOT BE IN DEFAULT UNDER ANY
OF THE TERMS, COVENANTS, AND CONDITIONS OF THE LEASE
BEYOND ANY APPLICABLE GRACE PERIOD.
3. TENANT SHALL HAVE THE RIGHT TO ASSIGN THE OPTION SET FORTH IN THIS
RIDER TO A PUBLICLY TRADED AFFILIATE OF TENANT.
Tenant Initial__________ Landlord Initial__________
F-1
LEASE EXHIBIT G
TERM SHEET FOR EXPANSION OPTION
A. BUILDING:
- Tenant shall have an option (the "OPTION") to cause Landlord
to construct (or cause to be constructed) an approximately
33,380 square foot building with nine per thousand parking
(the "EXPANSION BUILDING"), with a design substantially
similar to Landlord's standard spec building design. The
Expansion Building shall be constructed on land owned by
Landlord and located in the vicinity of the Building (the
"EXPANSION BUILDING AREA").
B. TERM OF OPTION:
- The term of the Option shall commence on the Commencement Date
and expire on the date that is eighteen (18) months thereafter
("OPTION TERM").
C. EXPANSION LEASE TERMS:
- If Tenant timely exercises the Option, Landlord and Tenant
shall each act reasonably and in good faith to negotiate the
terms of a lease agreement, in a form substantially similar to
the Lease, for Tenant's lease of the Expansion Building (the
"EXPANSION LEASE").
- The term of the Expansion Lease shall be no less than five (5)
years.
- The Expansion Lease shall be a triple net lease.
- Tenant's initial annual base rent for its lease of the
Expansion Building shall be the product of (y) total project
costs (inclusive of both "hard" and "soft" costs) incurred by
Landlord to design and construct the Expansion Building and
(z) the greater of (i) 11% or (ii) the sum of (A) the rate of
the 10-year U.S. Treasury Xxxx (as of the date of the
execution of the Expansion Lease) and (B) 650 basis points.
- The annual base rent shall be increased by 2.5% per year, on a
compounded basis.
D. ACCELERATION OF OPTION:
(1) Third Party Request-For-Proposal:
- If, at any time during the Option Term, Landlord receives, and
is willing to entertain, a request-for-proposal (a "RFP") from
a third party to construct a building in the Expansion
Building Area (on a so-called "build-to-suit" basis), Landlord
shall first offer to Tenant the opportunity to exercise the
Option by advising Tenant, in writing (the "RFP NOTICE"), of
Landlord's receipt of the RFP.
- Upon Landlord's delivery of the RFP Notice, Tenant shall have
five (5) business days ("TENANT'S RESPONSE PERIOD") in which
to advise Landlord, in writing (the "RFP NOTICE RESPONSE"),
whether or not Tenant desires to exercise its Option.
- If Tenant fails to timely deliver a RFP Notice Response, then
Tenant shall have automatically and unconditionally waived its
right to exercise the Option whereupon Landlord may proceed to
respond to the RFP and to develop the Expansion Building Area
in the manner Landlord deems appropriate; provided, however,
if Landlord fails to commence development of the Expansion
Building Area with the third party that is set forth in the
RFP Notice, the Option shall be reinstated subject to the
terms described herein.
Tenant Initial__________ Landlord Initial__________
G-1
- If Tenant timely delivers the RFP Notice Response and elects
to exercise the Option, then Landlord and Tenant shall
proceed, as contemplated in B. and C. above, and Landlord
shall proceed to construct the Expansion Building.
(2) Landlord Acceleration:
- If, at any time during the Option Term, Landlord desires to
construct (or cause to be constructed) a building, on a
speculative basis, (a "SPEC BUILDING") in the Expansion
Building Area (which Speculative Building shall be of whatever
design and configuration Landlord deems appropriate), Landlord
shall first offer to Tenant the opportunity to exercise the
Option by advising Tenant, in writing (the "LANDLORD
ACCELERATION NOTICE"), of Landlord's intent to construct (or
cause to be constructed) a Spec Building in the Expansion
Building Area .
- Upon Landlord's delivery of the Landlord Acceleration Notice,
Tenant shall have three (3) business days (the "RESPONSE
PERIOD") in which to advise Landlord, in writing (a "TENANT
RESPONSE"), whether or not Tenant desires to exercise its
Option.
- If Tenant fails to timely deliver a Tenant Response, then
Tenant shall have automatically and unconditionally waived its
right to exercise the Option and Landlord may proceed to
develop the Expansion Building Area in whatever manner
Landlord deems appropriate; provided, however, if Landlord
fails to commence development of a Spec Building, the Option
shall be reinstated subject to the terms described herein.
- If Tenant timely delivers a Tenant Response and elects to
exercise the Option, then Landlord and Tenant shall proceed as
contemplated in B. and C. above, and Landlord shall construct
the Expansion Building.
E. RIGHT OF FIRST REFUSAL TO LEASE SPACE:
- If Landlord elects to construct a Spec Building, then until
the expiration of the Option Term, Tenant shall have a right
of first refusal (a "ROFR") to lease space in the Spec
Building.
- If Landlord is prepared to enter into a letter of intent with
a third party tenant ("LOI"), Landlord shall first offer to
Tenant the opportunity to exercise the ROFR (on all of the
same terms and conditions as are set forth in the LOI) by
advising Tenant, in writing ("ROFR NOTICE"), of the terms of
the LOI and Landlord's intent to enter into same.
- Tenant shall have three (3) business days (the "ROFR PERIOD"),
after Tenant's receipt of the ROFR Notice, in which to advise
Landlord, in writing (a "TENANT ROFR RESPONSE"), whether or
not Tenant desires to exercise its ROFR (on all of the same
terms and conditions as are set forth in the LOI).
- If Tenant fails to timely deliver a Tenant ROFR Response, then
Tenant shall have automatically and unconditionally waived its
right to exercise the ROFR and Landlord may proceed to lease
the space in the Spec Building to the third party tenant;
provided, however, if Landlord fails to enter into a formal
lease agreement with the third party tenant, the ROFR shall be
reinstated subject to the terms described herein.
- If Tenant timely delivers a Tenant ROFR Response and elects to
exercise the ROFR, then Landlord and Tenant shall promptly
negotiate the terms of a lease agreement on terms reasonably
acceptable to Landlord and Tenant, but incorporating all of
the terms set forth in the LOI.
F. ASSIGNMENT. Tenant shall have the right to assign the Option and ROFR
to a publicly traded affiliate of Tenant.
Tenant Initial__________ Landlord Initial__________
G-2
