Exhibit 10.33
LEASE
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THIS LEASE ("LEASE") entered into as of the 14th day of January, 2000, between
Reliance Xxxxxxxx Associates, LLC, a Connecticut limited liability company
("Landlord"), having an address at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX, 00000
[facsimile 000-000-0000] and XxxxXxxxxx.xxx, Inc., a Delaware corporation, with
its principal place of business at 00000 X.X. Xxxxxx Xxxxx, Xxxxxxxx, XX 00000
("Tenant") (collectively the `Parties', or individually a ("Party").
W I T N E S S E T H:
In consideration of the mutual covenants herein set forth, and intending to
be legally bound, the parties hereto covenant and agree as follows:
1. SUMMARY OF DEFINED TERMS.
The parties agree that the following defined terms, as used in this Lease,
shall have the meanings and shall be construed as set forth below:
(a) "Building": The entire Building located in the Complex, as shown on
the plan attached hereto as Exhibit A and made a part hereof.
(b) "Complex": Xxxxxxxx Industrial Park, Stamford, Connecticut, as shown
on the plan attached hereto as Exhibit A and made a part hereof.
(c) "Term": Ten years plus any partial month, commencing on the Rent
Commencement Date, provided that if there are two Rent Commencement Dates, the
Term shall start on the first Rent Commencement Date.
(d) "Fixed Rent": One Million Sixty Thousand Dollars ($1,060,000.00) per
annum for the first five (5) years after the Rent Commencement Date, and One
Million One Hundred Sixty Thousand Dollars ($1,160,000.00) per annum for the
remainder of the Term; provided, however, that if the Premises are delivered to
Tenant in two stages as hereinafter provided, until the entire Premises are
delivered to Tenant, Fixed Rent shall be $9.00 per rentable square foot per
annum for the approximately 60,000 square foot "High Bay" space and $13.00 per
square foot per annum for the approximately 40,000 square foot "Adjacent
"Space", all as depicted on Exhibit A attached hereto. Fixed Rent shall be
payable in monthly installments, in advance.
(e) "Late Charge": Four percent (4%) of amount due for payments not
received within five (5) days of due date, as described herein.
(f) "Rent Commencement Date": For each of the "High Bay" space and the
"Adjacent Space" as shown on Exhibit A attached hereto, the first to occur of
the following: (1) Tenant shall commence its business operations in the Premises
(or in the "High Bay Space" or the "Adjacent Space, as the case may be, or (2)
upon completion of Landlord's Work in the relevant space pursuant to Section 3.
Tenant shall have no obligation to pay Fixed Rent,
Additional Rent or any other amount under this Lease until the Rent Commencement
Date. The entry of Tenant into the Premises for the purpose of installing
Tenant's fixtures and stock-in-trade, or making alterations and improvements to
the Premises, shall not constitute acceptance of the Premises, and shall not
cause the Rent Commencement Date to occur.
(g) "Tenant's Allocated Share": as to expenses which are the
responsibility of Tenant pursuant to the provisions of this Lease primarily to
the Building, 64% (or the percentage calculated by dividing the Rentable area of
the Premises by the Rentable Area of the Building), and as to expenses
hereinafter set forth primarily relating to the, Complex, 39% (or the percentage
calculated by dividing the Rentable area of the Premises by the Rentable Area of
the Complex), as both may be adjusted from time to time.
(h) "Initial Year Common Area Charge Installment": $___ TBD__________ per
month, in advance.
(i) "Rentable Area": Premises: 1 00,000rentable square feet
Building: 157,000 rentable square feet
Complex: 255,000 rentable square feet
(j) "Permitted Uses": Tenant's use of the Premises shall be limited to
storage, warehouse, retail distribution of grocery and other consumer products
and general office uses, along with any other legally permitted uses; provided,
however, that the phrase "retail distribution" is limited to the delivery or
Tenant's merchandise to retail customers off of the Premises and shall not be
construed to allow Tenant to engage in a retail operation which permits or
invites the public to patronize the Premises by arrival and departure from the
Complex to place orders, to pick up merchandise, or for any other reason (for
example and without limitation, the use of the Premises as a traditional grocery
store, such as Xxxx Xxxxx or Food Lion currently operates, is not a Permitted
Use).
(k) "Notice Address" means the address of Landlord set forth above and for
Tenant:
XxxxXxxxxx.xxx, Inc.
00000 XX. Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Legal Dept
Fax: 000-000-0000
XxxxXxxxxx.xxx, Inc.
00000 XX. Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn:Vice President of Operations
Fax: 000-000-0000
(l) "Premises": that part of the Building leased to Tenant for its
exclusive use as shown on the plan attached hereto as Exhibit A and made a part
hereof.
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2. PREMISES.
Landlord does hereby lease, demise and let unto Tenant and Tenant does
hereby hire and lease from Landlord the Premises, common and parking areas and
appurtenant rights for the Term upon the provisions, conditions and limitations
set forth herein.
3. CONSTRUCTION BY LANDLORD.
(a) Landlord shall diligently construct such work ("Landlord's Work") in
substantial conformity with the plans and outline specifications, if any, which
are listed on Exhibit B hereto attached, which have been initialed by the
parties, and which are herein incorporated by reference. If any revision or
supplement to Landlord's Work is requested by Tenant in writing or if Tenant
fails to provide previously requested information in. a timely manner, or such
other reasonable cooperation of Tenant is required by Landlord in connection
with the diligent completion of Landlord's Work (each, a "Tenant's Delay") then,
after written notice by Landlord, such occurrence shall not change the Rent
Commencement Date of the Term and shall not alter Tenant's obligations under
this Lease. The Rent Commencement Date shall commence on the date all of the
conditions set forth in Section 1(f) would have been satisfied but for Tenant's
Delay.
(b) That part of Landlord's Work described as Phase I of Exhibit B
regarding the "High Bay" portion of the Premises shall be substantially
completed by March 1, 2000, 2000, and that part of Landlord's Work described as
Phase I of Exhibit B regarding the "Adjacent Space" portion of the Premises
shall be substantially completed by March 15, 2000; provided, however, that such
date shall be reasonably extended for that additional time equal to the
aggregate time lost by Landlord due to strikes or other labor disputes,
unavailability of labor or materials, approval from municipal/utility entities,
war or other emergency, accidents, floods, fire or other casualties, weather
conditions, or any cause similar or dissimilar to the foregoing which is beyond
reasonable control of Landlord.
(c) Delay in possession: Subject to any extensions contemplated in
subparagraph (b)above,
(i) In the event Landlord fails to deliver the entire Premises in
accordance with Phase I of Exhibit B to Tenant by April 30, 2000, Rent
and Additional Rent on the Premises shall be abated until the date the
entire Premises are delivered.
(ii) In the event Landlord fails to deliver the entire Premises in
accordance with Phase I. Phase II, and Phase IV of Exhibit B to Tenant
by July 1, 2000, Tenant may terminate this lease upon written notice
to Landlord stating that if Premises are not delivered within 30 days
of the date of the notice the Lease shall terminate. Tenant's option
to terminate this Lease shall expire on December 31, 2000 at which
time, if the Premises have not been delivered this Lease shall
terminate.
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(iii) Landlord shall pay Tenant liquidated damages of $250 per day
for each day after April 30 2000 that the work described in Phase I of
Exhibit B is not completed
(iv) If there is work required per Phase IV of Exhibit B, and such
installation is not completed as of the First Rent Commencement Date,
Tenant shall be entitled to a rental rate reduction of 50% for the
portion(s) of the Premises so affected by the work necessary to
install such system (i.e, the "High Bay" or "Adjacent Space" spaces,
or both, as the case may be) through April 30, and a full rent
abatement thereafter, until that work is substantially completed as
reasonably established by Landlord's in a written notice to Tenant
that such work has been completed.
(v) In the event that (x) electric power to the Premises is
available by means other than as described as Phase Ill on Exhibit B,
(y) such means are acceptable to Tenant in its discretion reasonably
exercised, and (z) Landlord fails to deliver Phase Ill of Exhibit III
on or before July 1, 2000, Tenant shall have the option to assume the
responsibility to obtain its own electric power in lieu of the
requirements of Landlord as set forth in Phase Ill of Exhibit B. If
neither Tenant nor Landlord have been able, after exercising best
efforts, to complete Phase Ill of Exhibit B on or before December 1,
2000, Tenant shall have the option to terminate this Lease by written
notice to Landlord given not later than December 31, 2000.
(vi) Upon termination by Tenant under this Article 3 (c), Landlord
shall, within 10 days of date of termination, return the security
deposit received from Tenant in connection herewith.
(d) Special Provision: If it is determined by Landlord that structural
work to the Building is required due to the installation of loading docks and
doors on the west facade of the Premises by Tenant, Tenant shall pay the first
$50,000.00 of the cost thereof, Landlord and Tenant shall each pay 50% of the
next $300,000 of the cost thereof, and Tenant shall pay the remainder of the
cost thereof.
4. FIXED RENT
(a) Tenant shall pay to Landlord without notice or demand, and without
set-off (except as provided herein or if allowed by law)), the annual Fixed Rent
payable in equal monthly installments, in advance on the first day of each
calendar month during the Term commencing on the Rent Commencement Date, except
that an amount equal to one month's full installment of $88,333.33 shall be paid
upon the full execution of this Lease by the Parties which shall be applied to
the first full month's installment of Fixed Rent, due hereunder. In the event
the Rent Commencement Date shall be on any other day than the first day of the
month, the Tenant shall also pay a prorated portion of the monthly installment
applicable to the period from the Rent Commencement Date to the end of the
calendar month (utilizing thirty (30) days as a calendar month), in advance on
the first (15t) day of the second (2nd) month of the term. Fixed
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Rent and all other sums payable by Tenant to Landlord hereunder shall be paid to
Landlord or to such other person and at such other place as Landlord may from
time to time designate in advance and in writing.
(b) In the event any Fixed Rent or Additional Rent, charge, fee or other
amount due from Tenant under the terms of this Lease are not paid to Landlord
within five (5) days of the date due, Tenant shall also pay as Additional Rent
service and handling charge equal to the Late Charge times the total payment
then due. This provision shall not prevent the Landlord from exercising any
other remedy herein provided in the event of any default by Tenant.
(c) Within 60 days after delivery of the Premises to Tenant, Tenant may
cause its architect to measure the size of the Premises using the standard
method of measuring floor areas in building comparable to the Building as
established by BOMA, if such standards exist, or if such standards do not exist,
using any other reasonable standard of measurement mutually acceptable to Tenant
and Landlord in their respective discretion reasonably exercised. Tenant shall
provide Landlord a copy of Tenant's measurements and the method of computation,
and Landlord's architect shall be entitled to review and approve of the same,
such approval not to be unreasonably withheld or delayed. If the results of such
measurement show the "High Bay" space to be different than 60,000 square feet,
and/or the "Adjacent Space" space to be different than 40,000 square feet, Fixed
Rent shall be adjusted upward or downward, as the case may be, at the rate of
$9.00 per square foot per annum for the "High Bay" space and $13.00 per square
foot per annum, on the "adjacent Space" space for the first five years of the
term, and at $10.00 per square foot per annum and $14.00 per square foot per
annum, respectively, for the remainder of the Term; a the fractions used to
determine Tenant's Allocable Share shall be appropriately adjusted.
5. ADDITIONAL RENT.
Tenant shall pay to Landlord, as additional rent ("Additional Rent"),
within thirty (30) days after Landlord certifies to Tenant in writing,
accompanied by reasonable detail, the amount thereof, Tenant's Allocated Share
of the following charges:
(a) Taxes. All ad valorem taxes and special assessments ("impositions")
which are levied or assessed against the Premises during the Term or, if levied
or assessed prior or subsequent to the Term, which properly are allocable to the
Term, and real estate tax appeal expenditures incurred by Landlord. If such
impositions are levied or assessed against a larger property of which the
Premises are a part, those levied or assessed against the Premises shall be
deemed to be that proportion of those levied or assessed against such larger
property, which the square foot area of the Premises bears to the total square
foot area of space in the larger property. Landlord shall pay prior to
delinquency, all impositions legally imposed and other governmental charges of
any nature which constitute (or which, if not paid, would constitute), a lien
upon Landlord's title to the property of which other Premises form a part. In
the event any of the impositions payable by Tenant hereunder may be legally paid
in installments (whether by subjecting the Premises to bond or otherwise),
Tenant shall have the option to pay such impositions in installments over the
longest possible time period, and, in the event of such
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election, Tenant shall be liable only for those installments of such impositions
which become due and payable during, or which are attributable to, the Term
after the Rent Commencement Date (which shall be prorated at the Rent
Commencement Date and the end of the Term). Landlord agrees to execute or join
with Tenant in the execution of any application or other instrument that may be
necessary to permit the payment of such impositions in installments; provided
Landlord does not incur any cost in connection therewith.
In any year which Landlord does not protest the real property tax
assessment levied against the Premises (or such larger parcel of real property
of which the Premises are a part) Tenant may choose to protest the assessment in
Landlord's name and without expense to Landlord. If Tenant chooses to protest
the assessment, Landlord shall fully cooperate with Tenant's efforts provided
Tenant pays all costs and expenses necessary to conduct such protest. In the
event Landlord protests such assessment and a reduction in the taxes for the
Property results, Tenant shall be entitled to the benefit of such reduction ,
either as a credit against the next payments of Rent and Additional Rent due
under this Lease or as a refund if this Lease has expired. If Tenant protests
the assessment and the taxes for the Property are reduced as a result of such
protest, Landlord and Tenant shall each be entitled to the benefit of such
reduction Tenant shall also be entitled to reimbursement of it expenses in
conducting such protest, prorata to the extent Landlord (but not other tenants
of the Complex) benefits therefrom, such reimbursement to be in the form of a
credit against Rent and Additional Rent, but Tenant shall not be entitled to a
credit in excess of the reduced taxes which accrue to Landlord's benefit during
the remainder of the Term.
(b) Insurance Premiums. All premiums paid by Landlord for insurance as
follows:
(i) Fire and extended coverage insurance for one-hundred percent
(100%) replacement of the Premises (including demolition and debris
removal);
(ii) Insurance against Landlord's rental loss or abatement (up to
one year), from damage to or destruction of the Premises from fire or
other casualty;
(iii) Landlord's comprehensive liability insurance (including bodily
injury and property damage) and boiler insurance; and
(iv) Such other insurance as any reputable mortgage lending
institution holding a mortgage on the Premises may reasonably require.
If any insurance covers a larger property of which the Premises are a
part, the part of the premium therefore allocated to the Premises shall be that
proportion which the square foot area of the Premises bears to the total square
foot area of the space in the larger property. If the coverage period of any of
such insurance obtained by Landlord commences before or extends beyond the
rental term, the premium therefore shall be prorated to the Term. Should
Tenant's occupancy or use of the Premises, at any time cause an increase in such
insurance premiums on the Premises and/or on the building of which the Premises
are a part, Tenant shall pay to Landlord the entire amount of such increase
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(c) Common Area Charges. The common area charges ("Common Area Charges")
actually and reasonably incurred by Landlord during the Term including repairs
and maintenance performed pursuant to Articles 11(c) and 11(d), maintenance of
parking areas, driveways, sidewalks (including snow removal therefrom), building
landscaping, utilities charges (including water and septic/sewer charges) for
the Complex, trash removal, security, and actual management fees (not to exceed
4% of rents) but not in excess of competitive rates generally charged in the
area for comparable purposes, electronic and physical security as is customary
for industrial/distribution facility taking into consideration the ability of
Tenant to operate its business 24 hours per day, seven days per week.
(i) For the period commencing with the Commencement Date and ending
at the end of the initial calendar year within the Term (the "Initial
Year"), Tenant shall pay, in monthly installments in advance, on
account of Tenant's Allocated Share of Common Area Charges, the
Initial Year Common Area Charge Installment. Prior to the end of the
Initial Year and thereafter for each successive calendar year (each, a
"Lease Year"), or part thereof, Landlord shall send to Tenant a
statement of projected Common Area Charges and shall indicate what
Tenant's projected share of Common Area Charges shall be. Said amount
shall be paid in equal monthly installments in advance by Tenant as
Additional Rent commencing January 1st of the applicable Lease Year.
Projected Common Area Charges shall not exceed 105% of the actual
charges incurred in the prior year, however, Landlord may, upon
presentation of external documents evidencing a greater than 5%
increase in actual cost, increase that item to the estimated actual
cost.
(ii) Within four (4) months following the end of each Lease Year,
Landlord shall send to Tenant a reasonably detailed statement of
actual expenses incurred for Common Area Charges for the prior Lease
Year showing the pro rata share due from Tenant. Within 30 days of
receipt of statement Tenant shall pay Landlord additional amounts
owed. If estimated payments exceeded Tenant's prorata share of actual
expenses, Tenant may deduct the over payment from the next estimated
payment of Common Area Charges and any remaining balance shall be paid
to Tenant at the end of the Term..
(iii) Each of the Common Area Charge amounts, whether requiring lump
sum payment or constituting projected monthly amounts added to the
Fixed Rent, shall for all purposes be treated and considered as
Additional Rent and the failure of Tenant to pay the same as and when
due in advance shall be deemed a failure to pay Fixed Rent.
(iv) Tenant or its agent shall have the right at any time and from
time to time to inspect and/or audit, and make appropriate copies of
reasonably required information of Landlord's books and records
pertaining to any and every component of additional rent. Any
discrepancies, subject to Landlord review, between the amounts
actually billed to Tenant and those owed under this Lease, if
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in favor of Landlord, shall be paid to Landlord within 30 days of the
end of the audit or if in favor of Tenant, shall be paid to Tenant
within 30 days of the end of the audit. If the audit discloses a
discrepancy in excess of 10% of the amount billed Tenant, Landlord
shall pay for the reasonable costs of the audit. The rights and
obligations of the parties under this Article 5 shall survive the
termination or expiration of the Term.
(d) Utility Charges. If the Premises are not directly metered for actual
measurement of Tenant's utilities' consumption, Tenant shall pay to Landlord, as
Additional Rent, all reasonable and proportionate charges billed by the utility
provider to Landlord for utilities, such actual charges shall be based upon
Tenant's monthly consumption as reasonably determined by Landlord.
(e) Tenant shall pay and have the right to contest as allowed by law all
personal property taxes, income taxes and other taxes which are or may be
assessed, levied or imposed upon Tenant by any governmental authority and which,
if not paid, could be levied as a lien against the Building, or Tenant's
property in the Premises, or against Tenant's leasehold estate.
6. USE OF PREMISES AND COMMON AREAS.
Tenant may use and occupy the Premises only for the Permitted Uses (which
may include, if lawful, distribution of alcoholic beverages for off-site
consumption) and none other. Provided, however, that to the extent legally
necessary to enable Tenant to sell off-site distribution alcoholic beverages as
part of its retail home grocery distribution business, Tenant may operate an on-
site store for the retail sale of alcoholic beverages, of a size and capacity
not larger than the minimum reasonably necessary, in the opinion of Tenant's
counsel, to qualify for the license needed for the sale of off-site delivery of
alcoholic beverages as part of Tenant's home grocery retail sale and
distribution business. Tenant shall not commit or suffer any waste or nuisance
in or upon the Premises or the Building.
Tenant shall have the right, non-exclusive and in common with others, to
use the exterior paved driveways and walkways of the Building for vehicular and
pedestrian access to the Building. Tenant shall also have the exclusive right to
use the designated parking areas of the Building and for the parking of
automobiles and delivery vehicles of Tenant and its employees and business
visitors, incident to Tenant's permitted use of the Premises as depicted in
Exhibit "A" attached hereto. Landlord has established Rules and Regulations
attached hereto as Exhibit "C" and incorporated herein. Tenant shall abide by
such Rules and Regulations provided they are enforced in a reasonable and
nondiscriminatory manner.. Landlord may reasonably modify the Rules and
Regulations, and when communicated by written notification from Landlord to
Tenant, such modification shall be incorporated herein and made part of this
Lease; provided that no such modification shall materially adversely affect the
conduct of, or interrupt, Tenant's business provided its business is then being
operated in accordance with Tenant's business plan. Tenant shall have the right
to secure its truck parking area. Landlord hereby consents to the parking and
storage of Tenant's delivery fleet on the Premises.
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In the event of any conflict between the terms of the Lease and the Rules
and Regulations, the terms of the Lease shall prevail. Landlord shall use
reasonable business efforts to enforce the Rules and Regulations among all of
the tenants of the Building.
Landlord reserves the right to make changes in the common areas provided
such changes do not adversely affect Tenant's business operations at the
Premises. Landlord shall use reasonable business efforts to restrict the use of
the common areas adjacent to the Premises by other tenants of the Building so
that such use of the common areas shall not interfere with Tenant's loading and
unloading of goods at the Premises and other normal requirements of Tenant's
business conducted at the Premises. Landlord shall keep the common areas
adequately lighted at all times when lighting is necessary.
7. ENVIRONMENTAL MATTERS.
(a) Tenant shall not engage in operations at the Premises which involve
the generation, manufacture, refining, transportation, treatment, storage,
handling or disposal of "hazardous substances" as such term is defined under the
Comprehensive Environmental Response, Compensation and Liability Act ("XXXX"),
as amended, 42 US (S)9601 et seq, excepting Tenant may store, handle and
distribute hazardous substances (i) contained in products used by Tenant in
reasonable quantities for ordinary cleaning and janitorial supplies; (ii) used
for office purposes (which may include "White Out", copier toner, etc.), and
(iii) so long as Tenant secures approvals from all applicable governmental
jurisdictions regarding the use and storage on the Premises, Tenant shall have
the right to store, handle and distribute packaged products intended for resale
to customers (including, but not limited to hair spray, household cleaners,
automotive products, antifreeze, dog food, and fertilizer) and shall indemnify
Landlord from all liabilities excepting due to Landlord's negligence or
intentional acts or omissions. Tenant further covenants that it will not cause
or permit to exist, as a result of an intentional or unintentional action or
omission on its part, the release, spill, leak, emission or discharge from, on
or about the Premises of any hazardous substance brought on to the Premises by
Tenant, or by any employee, agent, invitee or licensee of Tenant. In the event
there occurs such a discharge of any hazardous substance by, through or under
Tenant, Tenant shall promptly give Landlord notice thereof. In the event such
occurrence is due to the act or neglect of Tenant, or by, through or under
Tenant (such as a business invitee), Tenant shall thereafter proceed with
reasonable diligence to remediate the discharge and clean up the Premises to
completion in accordance with applicable law. If reasonably indicated by the
presence of hazardous substances on the Premises arising by, through or under
Tenant, Landlord may require, but generally no more than twice in any one
calendar year, at Tenant's reasonable expense, reasonable inspections and
testing of the Premises by Landlord's environmental consultant in order to
assure that the Premises do not contain hazardous substances in violation of
applicable law.
(b) Landlord shall have the ongoing duty to advise Tenant of the existence
of any hazardous substances or hazardous conditions which exist in or about the
Premises, common areas, parking areas or other parts of the Complex and as to
which Landlord has actual knowledge. Landlord has heretofore advised Tenant of
the existence of toxic materials, hazardous substances or hazardous conditions
which exist in or about the Premises, Building,
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parking areas, and land area in which it is located. Landlord shall, at its sole
cost, subject to approval by applicable governmental authorities, undertake a
remediation plan following the completion of the testing plan, a copy of which
is attached hereto as Exhibit D. That part of the testing plan attached
identified on Exhibit D-1 shall be completed by Landlord prior to the Rent
Commencement Date, and the remediation plan, when approved, shall be completed
by Landlord promptly at its expense after the Rent Commencement Date (including
the removal of any hazardous substances required by such plan). Landlord shall
obtain written "no action letters', or similar documentation if and as issued by
the appropriate State of Connecticut governmental authority and deliver copies
thereof to Tenant following the plan's completion.
(c) Landlord shall indemnify, defend, reimburse and hold Tenant and its
employees harmless from and against any and all losses, claims, demands,
actions, suits, damages (including without limitation punitive damages),
expenses (including without limitation remediation, removal, repair, corrective
action or clean up expenses), and costs (including without limitation,
reasonable attorneys fees, consultants fees or expert fees) which are brought or
recoverable against, or suffered or incurred by Tenant as a result of the
presence of hazardous substances on the Premises prior to the Rent Commencement
date or which are caused by Landlord, or its agents or employees, intentional or
negligent acts or omissions, whether or not Landlord had actual knowledge of any
noncompliance. This Section 7 (c) shall survive the expiration or sooner
termination of this Lease.
8. TENANT'S ALTERATIONS.
(a) Tenant will not make structural alterations, structural improvements
or structural physical additions of any kind to any part of the Premises, nor
use or employ any contractor, architect. engineer or other professional without
first obtaining the written consent of Landlord, which consent shall not be
unreasonable withheld, or conditioned or delayed. As part of giving its consent,
Landlord will, among other criteria, evaluate the proven track record for the
respective contractor in the local market. If Landlord shall deny or condition
its approval, the reasons therefor and nature thereof shall be set forth with
reasonable specificity. Landlord shall respond to each Tenant proposal within 10
business days of receipt of request. Any other improvements may be made by
Tenant upon notice to Landlord subject to Landlord's consent, which may not be
unreasonably withheld. If Landlord approves Tenant's alterations and agrees to
permit Tenant's contractor to do the work, Tenant, prior to the commencement of
labor or supply of any materials, must furnish to Landlord (I) a policy or
certificates of insurance evidencing (a) general public liability insurance for
personal injury and property damage in the minimum amount of $2,000,000.00
combined single limit, (b) statutory xxxxxxx'x compensation insurance, and (c)
employer's liability insurance from each contractor to be employed (all such
policies shall be non-cancelable without thirty (30) days prior written notice
to Landlord and shall be in reasonable amounts and with companies reasonably
satisfactory to Landlord); (ii) construction documents prepared and sealed by a
registered Connecticut architect or engineer; (iii) all applicable permits
required by law; and (iv) appropriate mechanic's lien waivers signed by Tenant's
contractor and all subcontractors. Any consent by Landlord permitting Tenant to
do any or cause any work to be done in or about the Premises shall be and hereby
is conditioned upon Tenant's work being performed by workmen and mechanics
working
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in harmony and not materially interfering with labor employed by Landlord,
Landlord's mechanics or their contractors or by any other tenant or their
contractors.
(b) All alterations, additions or improvements (whether temporary or
permanent in character) made in or upon the Premises, excepting Tenant's trade
fixtures, equipment and personal property, either by Landlord or Tenant, shall
be Landlord's property upon installation and shall remain on the Premises
without compensation to Tenant; and all furniture, trade fixtures, personal
property and equipment installed by Tenant shall remain Tenant's property, free
of any lien for the payment of rent by Tenant or for the performance of any
other obligation of Tenant under the Lease; provided, however, that if at the
time of the installation of any of the foregoing the Parties shall identify in
writing that a contrary election has been made as to any such installation, such
election shall govern and control. Tenant's furniture, trade fixtures, personal
property and equipment may be removed by Tenant at the end of the Term if Tenant
so elects, and if not so removed shall, at the option of Landlord, become the
property of Landlord. If Landlord declines to exercise such option, Tenant shall
remove any and every item designated by Landlord. All installations shall be
accomplished in a good and workmanlike manner so as not to damage the Premises
or Building and in such manner so as not to disturb other tenants in the
Building. Tenant shall at its expense repair any and all damage caused by the
removal of any and all of the items or installations it removes.
(c) Prior to Tenant performing any construction or other work on or about
the Premises for which a lien could be filed against the Premises or the
Building, Tenant shall, to the extent lawful, have its contractor execute a
Waiver of Mechanics' Lien, reasonably satisfactory to Landlord, and provide
Landlord with the original copy of the same. Notwithstanding the foregoing, if
any mechanics' or other lien shall be filed against the Premises or the Building
purporting to be for labor or material actually furnished or to be furnished at
the request of Tenant, then Tenant shall at its expense cause such lien to be
discharged by payment, bond or otherwise, within ten (10) business days after
receipt of notice of the filing. Tenant shall have the right to contest any such
lien as permitted by law. Tenant shall indemnify and hold Landlord harmless
against any and all claims, costs, damages, liabilities and expenses (including
reasonable attorney fees) which may be brought or imposed against or incurred by
Landlord by reason of any such lien or its discharge.
9. ASSIGNMENT AND SUBLETTING.
(a) Except as expressly permitted pursuant to this Article, Tenant shall
not, without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed, assign or hypothecate this Lease
or any interest herein or sublet the Premises or any part thereof. Any of the
foregoing acts without such consent shall be void, and shall, at the option of
Landlord be an Event of Default under this Lease. Notwithstanding the foregoing,
Tenant shall have the right to assign this Lease in its entirety or to sublease
all or any portion of the Premises upon notice to but without the consent of
Landlord to (I) any entity resulting from a merger or consolidation with Tenant;
(ii) any subsidiary or affiliate of Tenant or (iii) a sale of all or
substantially all of Tenant's assets on the Premises, where the assets continue
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to be used on the Premises. This Lease shall not, nor shall any interest herein,
be assignable as to the interest of Tenant by operation of law without the
written consent of the Landlord.
(b) If Landlord is required to and does consent to the assignment or
subletting, such consent shall not be valid and no subtenant or assignee shall
take possession of the premises subleased or assigned until an executed
counterpart of such assignment or sublease has been delivered to Landlord.
(c) Fifty percent (50%) of any net profits received by Tenant as a result
of any subletting or assignment (the phrase "net profits" means gross rents and
other consideration received by Tenant as a consequence of such assignment or
subletting, less the cost of leasehold improvements made to the sublet or
assigned portion of the Premises by Tenant for subtenant or assignee, up to 3
months of Fixed Rent and Additional Rent to enable Tenant time to market the
Premises, and other reasonable expenses incident to the subletting or
assignment, including standard leasing commissions) whether denominated rentals
or otherwise under the sublease or assignment, which exceed, in the aggregate,
the total sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to that portion of the Premises
subject to such sublease or assignment) shall be payable to Landlord as
additional rental under this Lease without affecting or reducing any other
obligation of Tenant hereunder.
(d) No subletting or assignment shall release Tenant of Tenant's
obligation or alter the primary liability of Tenant to pay the rental and to
perform all other obligations to be performed by Tenant hereunder; provided,
however, that in the case of an assignment to which Landlord's consent is
required and has been given, if the assignee has a net worth greater than the
higher of (i) Tenant's then net worth, or (ii) One Hundred Million Dollars
($100,000,000.00), then Tenant shall be released from its liability under this
Lease, such release to be solely evidenced by a written release executed by
Landlord. The acceptance of rental by Landlord from any other person shall not
be deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Tenant or
any successor of Tenant in the performance of any of the terms hereof, Landlord
may proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or successor, after written notice is required to be given
by the terms of this Lease to cure any such default within applicable cure
periods.
10. LANDLORD'S RIGHT OF ENTRY.
Landlord and persons authorized by Landlord may enter the Premises at all
reasonable times for the purpose of inspections, repairs, alterations to
adjoining space, appraisals, or other reasonable purposes, including enforcement
of Landlord's rights under this Lease, provided that Landlord shall first have
given Tenant 48 hours prior written notice other than in the case of an
emergency. Landlord shall also have the right to enter the Premises to exhibit
the Premises to any prospective purchaser or mortgagee, and during the last six
months of the Term, to prospective tenants, after providing Tenant with forty
eight hour prior notice to the Notice Address (notice via facsimile is
acceptable), except in an emergency or if Tenant is in material default, and
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during normal business hours. Such entry by Landlord shall be accompanied by
Tenant or Tenant's representative if Tenant so elects and if Tenant is then in
physical possession of the Premises. Landlord acknowledges that Tenant's use of
the Premises and business is in a competitive industry, and certain aspects of
Tenant's use, trade fixtures, and equipment encompass confidential and
privileged trade secrets, and as such, Tenant in an effort to protect such
secrets, shall rely on Landlord's commercially reasonable efforts to protect the
same. Unless due to Landlord's gross negligence or willful misconduct, Landlord
shall not be liable for inconvenience to or disturbance of Tenant by reason of
any such entry; provided, however, that Landlord shall use commercially
reasonable efforts that such entry shall be diligently done and accomplished, so
far as practicable, so as to not materially interfere with Tenant's use and
occupancy of the Premises.
11. REPAIRS AND MAINTENANCE.
(a) Except due to negligent acts or willful misconduct by Landlord or as
specifically otherwise provided in this lease or in Paragraphs (b) and (c) of
this Article, and acts of god or war, Tenant, at its sole cost and expense and
throughout the Term of this Lease, shall keep and maintain all interior portions
of the Premises (other than the structural items specified in subparagraph (b)
below) in good order and condition, free of accumulation of dirt and rubbish,
and shall promptly make all repairs necessary to keep and maintain such good
order and condition. Tenant shall not use or permit the use of any portion of
the Premises for outdoor storage. When used in this Article 11, the term
"repairs" shall include replacements and renewals when necessary. All repairs
made by Tenant shall utilize materials and equipment which are equal (or better)
in quality and usefulness to those originally used in constructing the Building
and the Premises Tenant shall maintain all HVAC systems appurtenant to and
serving the Premises.
(b) Landlord, throughout the Term of this Lease and at Landlord's sole
cost and expenses, shall promptly make all necessary repairs to the footings and
foundations, structural walls, and the structural steel columns and girders
forming a part of the Premises (including such repairs as may be required by
Applicable Requirements, as such term is defined below); provided, however, that
Landlord shall have no responsibility to make any repair unless and until
Landlord receives written notice of the need for such repair. Tenant
acknowledges that Landlord will not be responsible for any repair or maintenance
during the term of this Lease for structural work performed by Tenant.
(c) Landlord, throughout the Term of this Lease, shall maintain and
diligently make all necessary repairs to and replacement of the roof and
exterior portions of the Premises and the Building, utility lines, equipment and
other utility facilities exterior to but serving the Premises, and to Common
Areas including without limitation all driveways, sidewalks, curbs, loading,
parking and landscaped areas, and other exterior improvements for the Building
(excluding any exterior area which Tenant has secured by a fence or gate, as to
which Tenant shall be solely responsible) ; provided, however, that Landlord
shall have no responsibility to make any repairs unless and until Landlord
receives written notice of the need for such repair, or verbal notice in the
case of an emergency. Tenant shall pay its Allocated Share of the reasonable
cost of all
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repairs to be performed by Landlord pursuant to this Paragraph 11(c). Costs of a
capital nature shall be capitalized and amortized over the useful life of the
expenditures over the life according to Generally Accepted Accounting
Principals. Tenant acknowledges that Landlord will not be responsible for any
repair or maintenance during the term of this Lease for work performed by
Tenant.
(d) Landlord shall keep and diligently maintain all common areas
appurtenant to the Building and any sidewalks, parking areas, curbs and access
ways adjoining the Property in a clean and orderly condition, free of
accumulation of dirt, rubbish, snow and ice, and shall keep and maintain all
landscaped areas in a neat and orderly condition. Tenant shall pay its Allocated
Share of the reasonable cost of all work to be performed by Landlord pursuant to
this subparagraph (d) as Additional Rent.
(e) Notwithstanding anything herein to the contrary, repairs to the
Premises and the Building and its appurtenant common areas made necessary by
Tenant's use, manner of use or occupancy of the Premises or due to an act or
omission of Tenant or any employee, agent, contractor or invitee of Tenant shall
be made at the sole cost and expense of Tenant.
(f) In the event Tenant incurs any reasonable out of pocket expenses to
correct or remedy Landlord's failure to fulfill its obligations set forth in
this Article after notice and the passage of the applicable cure period,
Landlord agrees to reimburse Tenant for such expense upon demand by Tenant; in
the event of the failure of Landlord to so reimburse Tenant, Tenant may deduct
such expense, together with interest at the Default Rate, out of any rent then
or thereafter becoming due to Landlord hereunder.
(f) In the event of emergency, Tenant may expend a sum not to exceed Two
Thousand Dollars ($2,000.00) for Landlord's account in satisfaction of
Landlord's obligations contained in this Article and in the event Landlord does
not pay to Tenant the amounts expended by Tenant concerning such emergency
repairs within fifteen (15) days of Tenant's billing of Landlord therefor,
Tenant may deduct the amount, or amounts, so expended and unpaid by Landlord,
out of any rent then or thereafter becoming due to Landlord hereunder.
12. LIABILITY INSURANCE; SUBROGATION RIGHTS.
Tenant shall obtain and keep in force at all times during the term hereof,
at its own expense, public liability insurance with companies with a minimum
rating of Best's A or equivalent, with minimum limits of $5,000,000.00 on
account of bodily injury to or death of one or more persons as the result of any
one accident or disaster and $1 000,000.00 on account of damage to property, or
in such other amounts as Landlord may from time to time reasonably require and
is customary in Tenants business, Such insurance shall not be subject to
cancellation without at least thirty (30) days prior notice to all insureds, and
shall name Landlord as additional insured and Tenant as insured, as their
interests may appear, and, if requested by Landlord, shall also name as an
additional insured any mortgagee holding or intended to hold a lien upon
Premises, after prior written notice. Prior to the commencement of the term
hereof, Tenant shall provide Landlord with certificates or copies of the policy
or policies of insurance above referred to. Tenant shall also furnish to
Landlord throughout the term hereof replacement certificates or
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copies of renewal polices, together with evidence of like paid premiums at least
ten (10) days prior to the expiration dates of the then current policy or
policies.
Each party hereto waives any cause of action it might have against the
other party on account of any loss or damage that is insured against under any
insurance policy (to the extent that such loss or damage is recoverable under
such insurance policy) that covers the Building, Landlord's or Tenant's
fixtures, personal property, leasehold improvements or business and which names
Landlord or Tenant, as the case may be, as a party insured. Each party hereto
agrees that it will cause its insurance carrier to endorse all applicable
policies waiving the carrier's right of recovery under subrogation or otherwise
against the other party. If Tenant enters into a similar agreement with a
subtenant of it, which agreement extends to Landlord, the agreement of Landlord
contained in this paragraph shall also extend to such subtenant. The waiver of
claims and subrogation applies eve if one or either of the parties does not
carry the requisite insurance.
13. INDEMNIFICATION.
(a) Except due to Landlord's intentional acts or omissions, negligence or
willful misconduct, Tenant shall indemnify and hold harmless Landlord from and
against any and all claims, actions, damages, liability and expense arising from
Tenant's use of the Premises, or from the conduct of Tenant's business or from
any activity, work or things done, permitted or suffered by Tenant in or about
the Premises or elsewhere and shall further indemnify and hold harmless Landlord
from and against any and all claims, actions, damages, liability and expense
arising from any breach or default in the performance of any obligation of
Tenant's part to be performed under the terms of this Lease, or arising from any
negligence of Tenant, any of Tenant's agents, contractors or employees, and from
and against all reasonable costs, reasonable attorney's fees, expenses and
liabilities incurred in defense of any such claim or any action or proceeding
brought thereon, and in case Landlord shall be made a party to any litigation
commenced by or against Tenant, its agents, subtenants, licensees,
concessionaires, contractors, customers or employees, then Tenant shall defend,
indemnify and hold harmless Landlord and shall pay all reasonable costs,
expenses and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation and upon notice from Landlord shall defend the
same at Tenant's expense by counsel satisfactory to Landlord. Tenant shall
indemnify and hold harmless Landlord from and against any and all claims,
actions, damages, liability and expense which may be imposed upon or incurred by
or asserted against Landlord by reason of (a) loss of life, personal injury
and/or damage to property occurring in or about, or arising out of, the
Premises, adjacent sidewalks and loading platforms or areas and common areas
appurtenant to the Building occasioned wholly or in part by reason of any act or
omission of Tenant, its agents, subtenants, licensees, concessionaires,
contractors, customers or employees and (b) any failure on the part of Tenant to
keep, observe and perform any of the terms, covenants, agreements, conditions or
limitations contained in this Lease on Tenant's part to be kept, observed and
performed.
(b) Except due to Tenant's intentional acts or omissions, negligence or
willful misconduct, Landlord shall indemnify and hold harmless Tenant from and
against any and all claims, actions, damages, liability and expense arising from
Landlord or from the conduct of
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Landlord's business or from any activity, work or things done, permitted or
suffered by Landlord in or about the Premises or elsewhere and shall further
indemnify and hold harmless Tenant from and against any and all claims, actions,
damages, liability and expense arising from any breach or default in the
performance of any obligation of Landlord's part to be performed under the terms
of this Lease, or arising from any negligence of Landlord or any of Landlord's
agents, contractors or employees, and from and against all reasonable costs,
reasonable attorney's fees, expenses and liabilities incurred in defense of any
such claim or any action or proceeding brought thereon, and in case Tenant shall
be made a party to any litigation commenced by or against Landlord, its agents,
subtenants, licensees, concessionaires, contractors, customers or employees,
then Landlord shall defend, indemnify and hold harmless Tenant and shall pay all
reasonable costs, expenses and reasonable attorney's fees incurred or paid by
Tenant in connection with such litigation and upon notice from Tenant shall
defend the same at Landlord's expense by counsel reasonably satisfactory to
Tenant.
14. QUIET ENJOYMENT.
Provided an Event of Default has not occurred, Tenant shall peaceably and
quietly hold and enjoy the Premises and all appurtenant rights for the Term,
without hindrance from Landlord or its agents, under and subject to the terms
and conditions of this Lease. If Tenant is unable to use the Premises for its
conduct of business for due to circumstances within the sole and reasonable
control of Landlord to cure (other than on account of Tenant's act or neglect,
and other than due to fire, other casualty or condemnation, for which separate
provision is made in this Lease, and other than for the time periods
contemplated in Article 3 above) (i) for three (3) days or more after Landlord
has been given written notice and the applicable cure period has expired without
cure, Fixed Rent, Additional Rent and all other amount payable by Tenant
hereunder shall xxxxx until Tenant is able to resume its conduct of its business
at the Premises; and (ii) for sixty (60) days or more after Landlord has been
given written notice and the applicable cure period has expired, Tenant shall
have the right to terminate this Lease upon written notice to Landlord.
15. DAMAGE.
Except as provided below, in case of damage to the Premises or common areas
utilized by Tenant in the conduct of its business by fire or other casualty,
Landlord shall repair the damage. Such repair work shall be commenced promptly
following notice of the damage and completed with due diligence, except for
delays due to governmental regulation, lack of availability of insurance
proceeds, unavailability of or inability to obtain labor or materials,
intervening Acts of God or other similar or dissimilar causes beyond Landlord's
reasonable control.
(a) Notwithstanding the foregoing, if (i) the damage is of a nature or
extent that, in Landlord's reasonable judgment, the repair and restoration work
cannot be completed within 180 consecutive business days of the date of the
casualty , or (ii) if more than thirty (30%) percent of the total area of the
Premises is damaged, Landlord or Tenant shall have the right to terminate this
Lease and all the unaccrued obligations of the parties hereto, by sending
written notice of such termination to the other party within thirty (30) days of
the casualty. If this Lease is so
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terminated, Fixed Rent and Additional Rent shall be adjusted between the parties
as of the date of the casualty.
(b) If the insurance proceeds received by Landlord (excluding any rent
insurance proceeds) are required to be applied on account of any mortgage which
encumbers any part of the Premises or Building, or if the nature of loss is not
covered by Landlord's insurance coverage and (i) exceeds $1,000,000.00 Landlord
may elect either to (y) repair the damage as above provided notwithstanding such
fact or (z) terminate this Lease by giving Tenant notice of Landlord's election
within thirty (30) days after Landlord's knowledge of the damage and of the
unavailability or insufficiency of insurance proceeds; provided, however, that
if Landlord elects to terminate the Lease Tenant may cancel such termination by
giving Landlord written notice prior to the termination date that Tenant elects
to restore the damage, and in such event Tenant, at its sole cost and expense,
shall restore the Premises or the Building, and Landlord shall then reimburse
Tenant $500,000 towards Tenant's cost of restoration; or (ii) is less than or
equals $1,000,000.00, Landlord shall repair the damage and the Parties shall
each pay 50% of the costs thereof.
(c) In the event of damage or destruction to the Premises, Common Area
utilized by Tenant in the conduct of its business and Tenant's use or occupancy
of the Premises is materially disrupted, Tenant's obligation to pay Fixed Rent,
Additional Rent and all other amounts payable by Tenant hereunder shall be
equitably adjusted or abated until the Premises, Common Area or any part thereof
are wholly restored.
(d) Notwithstanding any other provision hereof, if a total destruction of
the Premises, or Building occurs, this Lease shall terminate upon such
destruction.
16. SUBORDINATION; RIGHTS OF MORTGAGEE.
(a) This Lease shall be subject and subordinate at all times to the lien
of any mortgages now or hereafter placed upon the Premises or the Building and
land of which they are a part without the necessity of any further instrument or
act on the part of Tenant to effectuate such subordination, subject to section
(c) below. Tenant further agrees to execute and deliver upon demand such further
reasonable instrument or instruments evidencing such subordination of this Lease
to the lien of any such mortgage, in form and substance as the form of
subordination and nondisturbance agreement attached hereto as Exhibit G, and
such further instrument or instruments of attornment, in form and substance
acceptable to Tenant in its judgment reasonably exercised, as shall be desired
by any mortgagee or proposed mortgagee or by any other person, in consideration
for such mortgage/proposed mortgagee/other person's agreement not to disturb
Tenant's occupancy of the Premises and to perform all of Landlord's obligations
under this Lease if such mortgagee/proposed mortgagee/other person comes to own
the Premises.. Notwithstanding the foregoing, any mortgagee may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution and delivery and
in that event such mortgagee shall have the same rights with respect to this
Lease as though it had been executed prior to the execution and delivery of the
mortgage.
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(b) In the event Landlord shall be or is alleged to be in default of any
of its obligations owing to Tenant under this Lease, Tenant agrees to give to
the holder of any mortgage (collectively the "Mortgagee") now or hereafter
placed upon the Premises or the Building and land, notice by registered mail of
any such default which Tenant shall have served upon Landlord, provided that
prior thereto Tenant has been previously notified in writing by Landlord or by
the Mortgagee of the name and addresses of any such Mortgagee. Excepting in an
emergency, Tenant shall not be entitled to exercise any right or remedy as there
may be because of any default by Landlord without having given such notice to
the Mortgagee; and Tenant further agrees that if Landlord shall fail to cure
such default: (i) the Mortgagee shall have an additional thirty (30) days
(measured from the later of the date on which the default should have been cured
by Landlord or the Mortgagee's receipt of such notice from Tenant) within which
to cure such default; and (ii) Tenant shall not exercise any right or remedy as
there may be arising because of Landlord's default, including but not limited to
termination of this Lease as may be expressly provided for herein or available
to Tenant as a matter of law, if the Mortgagee has cured the default within such
additional thirty (30) day period.
(c) Nothing in this Article 16 grants any Mortgagee or any party taking
title to the Premises through Landlord the right to terminate or modify this
Lease, it being agreed that any such rights of Mortgagee or other party to
terminate arise out of and are exercised pursuant to and in accordance with
Article 19 hereof.
17. CONDEMNATION.
(a) If any part of the Premises or parking areas used exclusively by
Tenant or Tenant's means of vehicular ingress and egress, which, in Tenant's
reasonable judgment shall have a material and adverse effect upon the conduct of
Tenant's business from the Premises, is taken or condemned for a public or
quasi-public use, and Landlord cannot provide substitute property, and in
Tenant's judgment reasonably exercised renders the Premises unsuitable for
Tenant's intended use, Tenant shall have the option to terminate this Lease as
of the date title to the condemned real estate vests in the condemnor or taking
occurs and the Fixed Rent and Additional Rent shall be apportioned and paid to
Landlord to that date and all rent prepaid for periods beyond that date shall
forthwith be repaid by Landlord to Tenant and neither party shall thereafter
have any liability hereunder. A sale or other transfer in lieu of a taking shall
be deemed a taking for the purpose of this Lease.
(c) If the provisions of subparagraph (a) above do not apply, Landlord, as
expeditiously as reasonably possible after receipt of the condemnation proceeds
and at its sole expense shall diligently do and complete such work as may be
reasonably necessary to restore the portion of the Premises and common areas not
taken to tenantable condition, but shall not be required to expend more than the
net award awarded or which Landlord reasonably expects to be available for
restoration. If Landlord reasonably determines that the damages for restoration
of the Building will not be sufficient to pay the cost of restoration, or if the
condemnation damage award is required to be applied on account of any mortgage
which encumbers any part of the Building, Landlord may terminate this Lease by
giving Tenant thirty (30) days prior notice specifying the termination date as
of the date title to the condemned real estate vests in the
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condemnor, or the taking occurs, excepting however, Tenant may at its option,
within twenty (20) days after receipt of Landlord's termination notice, and
after written notice to Landlord, advance Landlord the reasonable amount of
funds to reasonably complete the restoration, and this Lease shall continue in
full force and effect. In such event, rents due hereunder shall be appropriately
and proportionally reduced as to the portion of the Premises so taken, and in
addition, Tenant's rents due hereunder shall be equally reduced over the
remaining Term by the same amount Tenant advanced to Landlord to complete said
restoration. Tenant shall have the right to terminate this Lease upon written
notice to Landlord if Landlord is unable to or fails to wholly restore the
remaining portion of the Premises and the common areas to tenantable condition
with 180 days after the date of taking. Until the Premises and the common areas
are wholly restored to tenantable condition, Fixed Rent, Additional Rent and all
other amounts payable by Tenant hereunder shall equitably reduce or abated.
(d) If this Lease is not terminated after any such taking or condemnation,
the Fixed Rent, Additional Rent and all other amounts payable by Tenant
hereunder shall be equitably reduced in proportion to the area of the Premises
and the common areas which has been taken for the balance of the Term.
(d) If a part or all of the Premises be taken or condemned, all
compensation awarded upon such condemnation or taking shall go to Landlord and
Tenant shall have no claim thereto; and Tenant hereby expressly waives,
relinquishes and releases to Landlord any claim for damages or other
compensation to which Tenant might otherwise be entitled because of any such
taking or limitation of the leasehold estate hereby created, and irrevocably
assigns and transfers to Landlord any right to compensation of all or a part of
the Premises or the leasehold estate, provided, however, that Tenant reserves
the right to pursue, obtain and receive reasonable compensation for its losses
to include goodwill, trade fixtures, personal property, equipment, business
disruption, moving expenses, and similar awards which may be available under
applicable law, provided the same does not reduce the compensation or award
payable to Landlord, all without regard to whether or not this Lease is
terminated pursuant to this Article 17.
(e) Upon service on either party hereto of any legal process in connection
with any condemnation proceedings involving the Building, the Premises or common
areas in any way, the party so served shall give prompt notice thereof to the
other party hereto.
18. TENANT'S CERTIFICATE.
Tenant agrees at any time and from time to time, within ten (10) business
days after Landlord's written request, to execute, acknowledge and deliver to
Landlord a written instrument in recordable form certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that it is in full force and effect as modified and stating the modifications),
and the dates in which Fixed Rent, Additional Rent, and other charges have been
paid in advance, if any, and stating whether or not to the best knowledge of the
signer of such certificate Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default of which the signer may have
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knowledge. It is intended that any such certification and statement delivered
pursuant to this Article may be relied upon by any prospective purchaser of the
fee or any mortgagee thereof or any assignee of Landlord's interest in this
Lease or of any mortgage upon the fee of the Premises or any part thereof
provided that Tenant need not state or certify as to any matter which is not
true.
19. DEFAULT.
If: (i) Tenant fails to pay any installment of Fixed Rent or any amount of
Additional Rent when due and such failure continues for a period of three (3)
business days after Tenant's receipt of written notice from Landlord; (ii)Tenant
fails to observe or perform or violates any of the other Tenant's agreements of
a material nature herein contained and such failure or violation continues for a
period of thirty (30) days or such additional time, if any, as is reasonably
necessary to cure such failure, following Tenant's receipt of written notice
from Landlord specifying with precision the nature of the default; (iii) Tenant
makes any assignment for the benefit of creditors; (iv) Tenant commits an act of
bankruptcy or files a petition or commences any proceeding under any bankruptcy
or insolvency law; (v) a petition is filed or any proceeding is commenced
against Tenant under any bankruptcy or insolvency law and such petition or
proceeding is not dismissed within sixty (60) days; (vi) Tenant is adjudicated a
bankrupt; (vii) Tenant by any act indicates its consent to, approval of or
acquiescence in, or a court approves, a petition filed or proceeding commenced
against Tenant under any bankruptcy or insolvency law; (viii) a receiver or
other official is appointed for Tenant or for a substantial part of Tenant's
assets or for Tenant's interests in this Lease; (ix) any attachment or execution
against a substantial part of Tenant's assets or of Tenant's interests in this
Lease remains unstayed or undismissed for a period of more than thirty (30)
days; or (x) a substantial part of Tenant's assets or of Tenant's interest in
this Lease is taken by legal process in any action against Tenant when such
remaining assets are not reasonably sufficient to allow Tenant to perform its
obligations under this Lease, then, in any such event, an Event of Default shall
be deemed to exist and Tenant shall be in default hereunder.
If an Event of Default shall occur, Landlord shall have the rights and
remedies set forth herein, which rights and remedies may be exercised upon or at
any time following the occurrence of an Event of Default unless, prior to such
exercise, Landlord shall agree in writing with Tenant that the Event(s) of
Default has been cured by Tenant in all respects:
(a) Landlord may perform for the account of Tenant any such default of
Tenant and immediately recover as Additional Rent any reasonable expenditures
made and the amount of any obligations incurred in connection therewith;
(b) Landlord may accelerate all Fixed Rent and Additional Rent due for the
balance of the Term (but for any termination of this Lease) and declare the
same, discounted to present value based upon the then prevailing Federal Funds
Rate, along with all sums past due, to be immediately due and payable. In
determining the amount of any future payments due Landlord on account of
Additional Rent, Landlord may make such determination based upon the amount of
Additional Rent paid by Tenant for the full year immediately prior to such
default;
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(c) Landlord may immediately proceed to distrain, collect and bring action
for the whole rent or such part thereof as aforesaid, as being rent in arrears,
or may file a Proof of Claim in any bankruptcy or insolvency proceeding for such
rent, or Landlord may institute any other legal proceedings, whether similar to
the foregoing or not, to enforce payment thereof;
(d) With court process Landlord may re-enter and repossess the Premises
breaking open locked doors, if necessary, and may use as much force as necessary
to effect such entrance without being liable to any action or prosecution for
such entry or the manner thereof, other than in the case of Landlord's or its
agents/employees' negligence or intentional misconduct), nor shall Landlord be
liable for the loss of any property upon the Premises. Landlord may remove all
of Tenant's goods and property from the Premises. Landlord shall have no
liability for any damage to such goods and property, and Landlord shall not
responsible for the storage or protection of the same upon removal except to the
extent required by applicable law;
(e) With court process Landlord may, at any time after the occurrence of
any Event of Default, re-enter and repossess the Premises and any part thereof
and attempt to relet all or any part of such Premises for and upon such terms
and to such persons, firms or corporations and for such period or periods as
Landlord, in its reasonable discretion, shall determine, including the term
beyond the expiration date of the Term and Landlord shall not be required to
accept any tenant offered by Tenant or observe any instruction given by Tenant
about such reletting. For the purpose of such reletting, Landlord may make
repairs, and restore the Premises to the condition at the Commencement Date; and
the measurable cost of such repairs and/or restorations, shall be charged to and
be payable by Tenant as additional rent hereunder, as well as any reasonable
brokerage and legal fees expended by Landlord; and any sums collected by
Landlord from any new tenant obtained on account of the Tenant shall be credited
against the balance of the rent due hereunder as aforesaid. Tenant shall pay to
Landlord monthly, on the days when the rent would have been payable under this
Lease, the amount due hereunder less the amount obtained by Landlord from such
new tenant;
(f) In the event of a monetary or other material event of default,
Landlord, at its option, may serve notice upon Tenant that this Lease and the
then unexpired Term shall cease and expire and become absolutely void on the
date specified in such notice, to be not less than five (5) days after the date
of such notice without any right on the part of the Tenant to save the
forfeiture by payment of any sum due or by the performance of any term,
provision, covenant, agreement or condition broken except to the extent
permitted by applicable laws; and, thereupon and at the expiration of the time
limit in such notice, this Lease and the Term hereof granted, as well as the
right, title and interest of Tenant hereunder, shall wholly cease and expire and
become void in the same manner and with the same force and effect as if the date
fixed in such notice were the date herein granted for expiration of the Term of
this Lease. Thereupon, Tenant shall immediately quit and surrender to Landlord
the Premises, and Landlord may enter into and repossess the Premises by summary
proceedings, detainer, ejectment or otherwise and remove all occupants thereof
and, at Landlord's option, any property thereon without being liable to
indictment, prosecution or damages therefor (except in the event of Landlord's
or its agents/employees intentional misconduct). In the event of termination of
this Lease pursuant to provisions of this subparagraph (f), Tenant shall pay to
Landlord all rental and other charges
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payable hereunder due and unpaid to the date of termination. In the event any
judgment has been entered against Tenant for any amount in excess of the total
amount required to be paid by Tenant to Landlord hereunder, then the damages
assessed under said judgment shall be re-assessed and a credit granted to the
extent of such excess; However, Tenant access the Premises for a period of six
months following the date of the notice by payment to Landlord of six months
Rent and Additional Rent at 125% of the rates in effect at the time of delivery
of the notice.
(g) Landlord shall have the right of injunction, in the event of a breach
or threatened breach by Tenant of any of the agreements, conditions, covenants
or terms hereof, to restrain the same and the right to invoke any remedy allowed
by law or in equity, whether or not other remedies, indemnity or reimbursements
are herein provided.
(h) The rights and remedies given to Landlord in this Lease are distinct,
separate and cumulative remedies: and no one of them, whether or not exercised
by Landlord, shall be deemed to be in exclusion of any of the others, nor an
election of remedies by Landlord;
(i) Any sums payable by Tenant hereunder, which are not paid after the
same shall be due, and within three (3) business days after Tenant's receipt of
Landlord's written notice relating thereto shall bear interest from that day
until paid at the lower of the highest nonusurious rate or four (4%) percent
over the then Prime Rate as published in the Wall Street Journal (the "Default
Rate").
(j) Landlord shall have all rights and remedies now or hereafter existing
at law with respect to the enforcement of Tenant's obligations hereunder and the
recovery of the Premises.
(k) Nothing herein contained shall limit or prejudice the right of
Landlord to exercise any or all rights and remedies available to Landlord by
reason of an Event of Default by Tenant or to prove for and obtain in
proceedings under any bankruptcy or insolvency laws, an amount equal to the
maximum allowed by any law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damage referred to
above.
(l) No delay or forbearance by Landlord or Tenant in exercising any right
or remedy hereunder, or Landlord's or Tenant's undertaking or performing any act
or matter which is not expressly required to be undertaken by Landlord or Tenant
shall be construed, respectively, to be a waiver of Landlord's or Tenant's
rights or to represent any agreement by Landlord or Tenant to undertake or
perform such act or matter thereafter. Waiver by Landlord or Tenant of any
breach by the other Party of any covenant or condition herein contained (which
waiver shall be effective only if so expressed in writing by Landlord or Tenant)
or failure by the Landlord or Tenant to exercise any right or remedy in respect
of any such breach shall not constitute a waiver or relinquishment for the
future of Landlord's or Tenant's right to have any such covenant or condition
duly performed or observed by Tenant, or of Landlord's rights arising because of
any subsequent breach of any such covenant or condition nor bar any right or
remedy of Landlord in respect of such breach or any subsequent breach.
Landlord's receipt and acceptance of any payment from Tenant which is tendered
not in conformity with the provisions of this Lease or following an Event of
Default (regardless of any endorsement or notation on any check or any
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statement in any letter accompanying any payment) shall not operate as an accord
and satisfaction or a waiver of the right of Landlord to recover any payments
then owing by Tenant which are not paid in full, or act as a bar to the
termination of this Lease and the recovery of the Premises because of Tenant's
previous default.
(m) In the event of occurrence of an Event of Default by Tenant, Landlord
without prejudice and in addition to any other rights it may have in law or in
equity, and after written notice may cure such defaults(s) on behalf of Tenant;
and Tenant shall reimburse Landlord on demand for all costs incurred by Landlord
in that regard plus interest thereon from the date(s) of expenditure at the
Default Rate (unless such rate be usurious as applied to Tenant, in which case
the highest permitted legal rate shall apply), which shall be deemed Additional
Rent payable hereunder.
(n) Should Landlord default in the performance of any covenant or
agreement herein, and such default continues for thirty (30) days after receipt
by Landlord of written notice thereof from Tenant (except as otherwise provided
herein), or if the default of Landlord is of a type which is not reasonably
possible to cure within thirty (30) days, if Landlord has not commenced to cure
said default within said thirty (30) day period and does not thereafter
diligently prosecuted the curing of said default to completion, Tenant may i)
pay any sums necessary to perform any obligation of Landlord in default
hereunder and deduct the cost thereof, with interest at the Default Rate, from
rent then and thereafter becoming due to Landlord hereunder; or (ii) pursue any
other available legal or equitable remedy.
20. SURRENDER.
Tenant shall, at the expiration of the Term or earlier termination as
herein provided, promptly quit and surrender the Premises in good order and
condition, excepting only reasonable wear and tear and damage by fire or other
casualty. Unless consented to in writing by Landlord, Tenant shall have no right
to hold over beyond the expiration of the Term and in the event Tenant shall
fail to deliver possession of the Premises as herein provided, such occupancy
shall not be construed to effect or constitute other than a tenancy at will.
During any period of occupancy beyond the expiration of the Term without
Landlord's written consent, all of the terms and provisions of the Lease shall
continue to apply, except for the Term, and, unless the Parties are then if good
faith negotiations regarding the extension or renewal of this Lease, the amount
of rent owed to Landlord by Tenant shall automatically become 150% of the sum of
the Fixed Rent and Additional Rent. The acceptance of rent by Landlord or the
failure or delay of Landlord in notifying or evicting Tenant following the
expiration or sooner termination of the Term shall not create any tenancy rights
in Tenant and any such payments by Tenant may be applied by Landlord against its
costs and expenses, including attorney's fees and damages incurred by Landlord
as a result of such holdover.
21. GOVERNMENTAL REGULATIONS.
Landlord has no actual knowledge whether or not the improvements on and in
the Premises and the Common Areas comply with the building codes that were in
effect at the time that each such improvement, or portion thereof, was
constructed, or applicable laws, covenants or
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restrictions of record, regulations, and ordinances in effect on the
Commencement Date ("Applicable Requirements"). Except as provided below, Tenant
shall, in the acceptance, alteration, improvement, use and occupancy of the
Premises and the conduct of Tenant's business or profession therein, at all
times comply with all Applicable Requirements.. Tenant shall as required (i)
obtain, at Tenant's expense, before engaging in Tenant's business or profession
within the Premises, all necessary licenses and permits including (but not
limited to) state and local business licenses or permits, and (ii) remain in
compliance with and keep in force at all times all licenses, consents and
permits necessary for the lawful conduct of Tenant's business or profession at
the Premises. Tenant shall pay and shall have the right to contest as allowed by
law all personal property taxes, income taxes and other taxes which are or may
be assessed, levied or imposed upon Tenant by any governmental agency having
such authority and which, if not paid, could be liened against the Premises or
against Tenant's property therein or against Tenant's leasehold estate.
Any structural changes, alterations or additions in or to the Building, the
Premises or the common areas which may be necessary or require by reason of any
law, rule, regulation or order promulgated by competent governmental authority
and not the responsibility of Tenant as set forth in elsewhere in this Lease
shall be made promptly by Landlord at the sole cost and expense of Landlord.
Landlord may contest the validity of any such law, rule, regulation or order,
but shall indemnify and save harmless Tenant (including reasonable attorneys'
fees) against the consequences of continued violation thereof during such
contest.
22. NOTICES.
Wherever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other
party, such notice or demand shall be deemed to have been duly given or served
if in writing by facsimile, overnight delivery or by a nationally recognized
carrier, or by Registered or Certified mail, return receipt requested, postage
prepaid, and addressed to the parties at the addresses set forth at the top of
this Lease. Each such mailed notice shall be deemed to have been given to or
served upon the party to which addressed on the date the same is received Either
party hereto may change its address to which said notice shall be delivered or
mailed by giving prior written notice of such change to the other party hereto,
as herein provided.
23. BROKERS.
Each of Landlord and Tenant represents and warrants to the other party that
it has had no dealings, negotiations or consultations with respect to the
Premises or this transaction with any broker or finder other than Reliance
Property Group, LLC ("Reliance") and Ernst & Young, LLP ("Ernst"); and that
otherwise no broker or finder called the Premises to Tenant's attention for
lease or took any part in any dealings, negotiations or consultations with
respect to the Premises or this Lease. Landlord shall pay all fees and
commissions owed to Reliance in connection with the negotiation and execution of
this Lease pursuant to separate agreement. No payment is due Ernst pursuant to
separate letter of instruction received by Landlord from Ernst. Each of Tenant
and Landlord agrees to indemnify and hold the other party harmless from and
against all liability,
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cost and expense, including attorney's fees and court costs, arising out of any
misrepresentation or breach of warranty or covenant by Tenant or Landlord under
this Article, and the foregoing indemnification obligation shall survive the
termination or expiration of this Lease.
24. ENTIRE AGREEMENT.
This Lease including all exhibits attached hereto and expressly made a part
hereof represents the entire agreement between the parties hereto and there are
no collateral or oral agreements or understandings. This Lease shall not be
modified in any manner except by an instrument in writing executed by the
Parties. Each and all of the covenants, agreements, obligations, conditions and
provisions of this Lease shall inure to the benefit of and shall bind the
permitted successors and assigns of the respective Parties. Upon the request of
either party, the parties shall execute and acknowledge a memorandum of this
Lease, which may be recorded in the real estate record of the county where the
Real Property is located by and at the expense of the requesting party.
25. SEVERABILITY.
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term, then and
in that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby and it is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added as a part of this
Lease a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
26. LANDLORD'S LIABILITY.
Landlord's obligations hereunder shall be binding upon Landlord only for
the period of time that Landlord is in ownership of the Building; if the
succeeding owner of the Building assumes in writing all of Landlord's
obligations under this lease, a copy of which shall be provided to Tenant; and,
upon termination of that ownership, and Tenant's receipt of such assumption
agreement, and after written notice, Tenant, except as to any prior or existing
obligations which have then matured, shall look solely to Landlord's successor
in interest in the Building for the satisfaction of each and every obligation of
Landlord hereunder arising after the effective date of the succeeding owner's
assumption of Landlord's obligations hereunder. Landlord shall transfer any
security deposit held by it to the Landlord's successor and after Tenant's
receipt of the purchaser's written acknowledgement of its receipt of the
security and assumption of Landlord's obligations hereunder, Landlord shall be
discharged from any further liability in reference thereto.
Except due to its illegal acts or willful misconduct, Landlord shall have
no personal liability under any of the terms, conditions or covenants of this
Lease and Tenant shall look solely to the equity of the Landlord in the Building
of which the Premises form a part, future rents of the Premises, and Landlord's
insurance for the satisfaction of any claim, remedy or cause of action accruing
to Tenant as a result of the breach of any action of this Lease by Landlord.
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27. SECURITY DEPOSIT
With the execution of this Lease, Tenant has deposited with Landlord an
unconditional letter of credit (the "LC") issued by U.S. Bank National
Association ("Issuer") in the amounts and in the form attached hereto as Exhibit
F. The LC shall be held by Landlord as a security deposit for the performance
by Tenant of each and all of its obligations hereunder. Without waiving any
other right or remedy of Landlord, Landlord may draw upon the LC at any time
after the occurrence of an Event of Default by Tenant. By its terms the LC shall
automatically renew annually, or Tenant shall cause the Issuer to renew the LC
annually, in either case 30 days prior to the expiry date of the LC, failing
which Landlord may draw upon the LC and hold the proceeds thereof as a security
deposit hereunder. Within fifteen (15) days after the later of the expiration or
termination of this Lease (other than Lease due to an Event of Default by
Tenant) or the completion of all of Tenant's repair and restoration obligations,
Landlord shall refund to Tenant the LC or the unused portion of such security
deposit; provided that if the Term is terminated under the provisions of Article
19 (f) and Tenant access to the Premises as provided in the last sentence of
paragraph 19 (f), such return shall be delayed until Tenant's access has ceased
and its restoration obligations have been completed.
28. Non-Disturbance Agreement. Tenant's subordination of this Lease shall be
subject to receiving a commercially reasonable non-disturbance agreement (a
"Non-Disturbance Agreement") from the Mortgagee which Non-Disturbance Agreement
provides that Tenant's possession of the Premises, and this Lease, including any
options to extend the term hereof, will not be disturbed so long as Tenant is
not in an uncured default or Event of Default beyond any applicable cure periods
hereof and attorns to the record owner of the Premises.
29. Early Possession. Tenant, at its option, may enter into the Premises to
undertake improvements and alterations thereto prior to the first Rent
Commencement Date, If Tenant so enters the Premises, all of the terms and
conditions shall apply to such early possession and occupancy, except that
Tenant shall have no obligation to pay Fixed Rent or Additional Rent until the
Rent Commencement Date occurs.
30. Performance by Tenant on Behalf of Landlord. In the event that neither
Landlord nor Mortgagee cures any breach by Landlord within the applicable cure
period, or if
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having commenced said cure they do not diligently pursue it to completion, then
Tenant may elect to cure said breach at Landlord's expense. Tenant shall present
a xxxx and reasonable detail of expenses incurred by Tenant in connection
therewith. If such xxxx is not paid within 5 business days after receipt by
Landlord or Mortgagee, Tenant may offset the amount thereof until Tenant's
reasonable cost for the cure is recovered. If Tenant's reasonable costs for cure
exceeds the remaining financial obligations under this Lease or earlier
termination thereof, Landlord shall reimburse any remaining balances to Tenant
upon demand. Tenant shall reasonably document the cost of said cure and supply
said documentation to Landlord upon written request.
31. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
32. Binding Effect; Choice of Law. This Lease shall be binding upon the
parties, successors and assigns and be governed by the laws of the State in
which the Premises are located. Any litigation between the Parties hereto
concerning this Lease shall be initiated in the county in which the Premises are
located.
33. Authority. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on its behalf. Each party
shall, within thirty (30) days after request, deliver to the other party
satisfactory evidence of such authority.
34. Rooftop Installations. Tenant, at its sole cost and expense (including
costs and expenses relating to additional structural requirements), may install
(a) antennas and satellite dishes, (b) refrigeration equipment, and (c) HVAC
equipment on the roof of the Premises, subject to Applicable Requirements and
the terms and provisions of this Lease, without payment of any additional Fixed
Rent or Additional Rent under this Lease. These items are deemed by the Parties
to be Tenant's trade fixtures, removable by Tenant at the end of the Term,
provided that Tenant shall repair any and all damage caused by such removal.
Tenant must engage Landlord's roofing contractor for all rooftop work that would
otherwise jeopardize the warranty of the roof system.
35. Options to Extend. Provided no Event of Default exists and is continuing,
Tenant shall have the option to extend the Term for two consecutive periods five
years each (each, a Renewal Term), upon all of the terms and conditions set
forth in this Lease, except for Fixed Rent as hereinafter provided, and except
for the matters set forth on Exhibit B and Exhibit E. Tenant, if it elects to
exercise it option, shall do so by written notice to Landlord given not earlier
than 18 months, nor later than 9 months, before the expiration of the Term or
the first Renewal Term, as the case may be.
Fixed Rent for each Renewal Term shall be the greater of the Fixed Rent
payable for the last year of the Term or the preceding Renewal Term, as the case
may be, or "Fair Market Rent". Fair Market Rent means the fair market Fixed Rent
for the Premises at the time, taking into account the then fixed rent for
comparable premises in the local marketplace, the condition of the Premises, the
credit worthiness of Tenant, costs and expenses incurred by landlords similar to
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Landlord in the leasing of such space (such as concessions, brokers fees, and
the like) and all other appropriate factors.
Within 15 days after Tenant has exercised its option to renew, the Parties
shall meet to attempt to negotiate Fair Market Rent. If the Parties are unable
to agree upon Fair Market Rent within 45 days after Tenant has exercised its
option, each Party, within 10 days thereafter, shall designate an MAI appraiser,
real estate broker or other qualified professional ("Consultant") doing business
in Fairfield County, Connecticut, experienced in the appraisal of fixed rent for
real property comparable to the Premises and the Complex. Such Consultants shall
attempt to agree upon the Fair Market Rent for the Premises within 30 days after
their appointment, which shall become the Fixed Rent for the renewal Term. If
the Consultants shall not be able to agree upon the Fair Market Rent, they shall
designate a third consultant who, alone, shall determine Fair Market Rent for
the Renewal Term within 30 days of appointment. The Fair Market Rent for the
Renewal Term shall be the Fair Market Rent determined by Landlord's Consultant
or Tenant's Consultant which is the closest to the Fair Market Rent determined
by the third consultant. All Consultants shall be instructed to deliver written
reports to the Parties. Each Party shall pay for the Consultant chosen by it and
shall pay 50 % of the costs of the third Consultant if required.
36. Non-Competition. During the Term, Landlord shall not (nor shall any
subsidiary or affiliate of Landlord) lease to any third person or entity any
land or building whether presently owned or hereinafter acquired within a radius
of 5 miles from the Premises for use as a online retail grocery distribution
center, nor shall Landlord, directly or indirectly, own or operate any such
center within such radius. In the event of a breach by Landlord of this Article
36, Tenant shall be entitled to all equitable relief available, including
without limitation injunctive relief, temporary and permanent.
37. Landlord's Approval of Tenant's Initial Leasehold Improvements. Attached
hereto as Exhibit E is a description of the initial improvements Tenant intends
to make to the Premises. Except as noted on Exhibit E, Landlord approves such
improvements to be constructed by Tenant pursuant to the other provisions of
this Lease.
38. SIGNS
--- -----
(a) Tenant shall have the right to install, erect and maintain upon the
Premises, but in accordance with Applicable Requirements, all signs necessary or
appropriate to the conduct of its business, as determined by Tenant in its sole
discretion, including signs on the exterior of the Premises and Landlord's free-
standing pylon or monument sign tower (if any) constructed or to be constructed
in the Complex. Tenant shall not install, erect, or maintain any sign in
violation of any applicable law, ordinance or use permit of any governmental
authority. Tenant shall remove the same not later than thirty (30) days after
the expiration or termination of the Term, and Tenant at its own expense shall
repair any damage caused by the removal thereof by Tenant.
(b) Landlord shall not install, erect or maintain any signs on the
exterior or interior of the Premises during the Term, except that Landlord may
erect a "For Rent" sign during the last
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six (6) months of the Term; provided, however, that such sign shall not obstruct
any sign of Tenant or interfere unreasonably with the conduct of Tenant's
business at the Premises.
39. ATTORNEYS'FEES
--- --------------
If suit or action is instituted to enforce any of the terms of this Lease,
including any and all bankruptcy claims, actions and proceedings deemed
necessary or desirable to enforce any of the terms of this Lease or otherwise
protect the interest of either party, the prevailing party shall be entitled to
recover such sums as the court may adjudge reasonable as attorneys' fees and
expenses, including fees or expenses that may be incurred in any appellate,
bankruptcy, insolvency or similar proceeding, In the event neither party wholly
prevails, the party which substantially prevails shall be awarded a reasonable
sum as attorneys' fees and litigation expenses.
40. CONFIDENTIALITY All of the terms and conditions of this Lease shall remain
--- ---------------
confidential between the Parties, and shall not be disclosed to any third party
(other than the Parties' respective lenders, attorneys, professional
consultants, and other having a "need to know"), except as otherwise required to
by court order or as agreed between the Parties. The provisions of this Article
encompass press releases concerning the existence of this Lease or any other
public announcement.
41. CONDITION PRECEDENT.
--- -------------------
The Parties acknowledge that as of the date of signature of this Lease
Landlord is a contract purchaser of, but does not own, the Complex. Accordingly,
this Lese shall become effective only on the date Landlord closes the purchase
of the Complex. Unless and until Landlord acquires the Complex, the rights and
obligation of the Parties hereunder are not enforceable. If Landlord does not
close the purchase of the Complex on or before March 1, 2000, this Lease shall
be null and void and of no force or effect. Through the date Landlord closes the
purchase of the Complex or March 1, 2000, whichever first occurs, this Lease
shall not be subject to cancellation or recission by either of the Parties.
42. COUNTERPARTS.
--- ------------
This Lease may be executed in one or more counterparts, each of which, when
taken together, shall constitute one and the same instrument
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal the
day and year first above written.
WITNESSES: LANDLORD:
RELIANCE XXXXXXXX ASSOCIATES, LLC
_____________________ By: WCP Holdings, LLC, a Georgia limited
liability company, its manager
By: Wynnton Capital Partners, L.P., a
Georgia limited partnership, its manager
_____________________ By: Wynnton International, Inc., a
Georgia corporation, its general partner
By:____________, its ______ president
/s/:___________________ TENANT:
/s/:___________________ XxxxXxxxxx.xxx, Inc., a Delaware
corporation
By:
/s/ Xxxx Xxxxx Xxxxxx
-----------------------------------------
Its: Chief Executive Officer
[Corporate Seal]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal the
day and year first above written.
WITNESSES: LANDLORD:
RELIANCE XXXXXXXX ASSOCIATES, LLC
/s/: Xxxx X. Xxxxx By: WCP Holdings, LLC, a Georgia limited
------------- liability company, its manager
By: Wynnton Capital Partners, L.P., a
Georgia limited partnership, its manager
/s/: Xxxx Xxxxxxxx By: Wynnton International, Inc., a
------------- Georgia corporation, its general partner
By: /s/: [illegible] , its Vice
----------------
president
_______________________ TENANT:
_______________________ XxxxXxxxxx.xxx, Inc., a Delaware
corporation
By: ___________________________________
Its: Chief Executive Officer
[Corporate Seal]
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