Exhibit 10.27
LEASE
RREEF AMERICA REIT II CORP. II,
a Maryland corporation,
Landlord,
and
MONTEREY GOURMET FOODS, INC.,
a Delaware corporation,
Tenant
TABLE OF CONTENTS
Page
1. USE AND RESTRICTIONS ON USE ...................................... 1
2. TERM ............................................................. 1
3. RENT ............................................................. 2
4. RENT ADJUSTMENTS ................................................. 2
5. SECURITY DEPOSIT ................................................. 4
6. ALTERATIONS ...................................................... 4
7. REPAIR ........................................................... 5
8. LIENS ............................................................ 6
9. ASSIGNMENT AND SUBLETTING ........................................ 6
10. INDEMNIFICATION .................................................. 7
11. INSURANCE ........................................................ 7
12. WAIVER OF SUBROGATION ............................................ 8
13. SERVICES AND UTILITIES ........................................... 8
14. HOLDING OVER ..................................................... 8
15. SUBORDINATION .................................................... 8
16. RULES AND REGULATIONS ............................................ 9
17. REENTRY BY LANDLORD .............................................. 9
18. DEFAULT .......................................................... 9
19. REMEDIES ......................................................... 10
20. TENANT'S BANKRUPTCY OR INSOLVENCY ................................ 12
21. QUIET ENJOYMENT .................................................. 13
22. CASUALTY ......................................................... 13
23. EMINENT DOMAIN ................................................... 14
24. SALE BY LANDLORD ................................................. 14
25. ESTOPPEL CERTIFICATES ............................................ 14
26. SURRENDER OF PREMISES ............................................ 14
27. NOTICES .......................................................... 15
28. TAXES PAYABLE BY TENANT .......................................... 15
29. RELOCATION OF TENANT ............................................. 15
30. DEFINED TERMS AND HEADINGS ....................................... 16
31. TENANT'S AUTHORITY ............................................... 16
32. FINANCIAL STATEMENTS AND CREDIT REPORTS .......................... 16
33. COMMISSIONS ...................................................... 16
34. TIME AND APPLICABLE LAW .......................................... 16
35. SUCCESSORS AND ASSIGNS ........................................... 16
36. ENTIRE AGREEMENT ................................................. 16
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TABLE OF CONTENTS
Page
37. EXAMINATION NOT OPTION ........................................... 17
38. RECORDATION ...................................................... 17
39. LIMITATION OF LANDLORD'S LIABILITY ............................... 17
ADDENDUM TO LEASE
EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
EXHIBIT A-1 - SITE PLAN
EXHIBIT A-2 - LEGAL DESCRIPTION
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - COMMENCEMENT DATE MEMORANDUM
EXHIBIT D - RULES AND REGULATIONS
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
ii
MULTI-TENANT INDUSTRIAL NET LEASE
REFERENCE PAGES
BUILDING: Kent 000, Xxxxxxxx X
XXXXXXXX: XXXXX XXXXXXX REIT II CORP. II,
a Maryland corporation
LANDLORD'S ADDRESS: RREEF AMERICA REIT II CORP. II
c/o RREEF
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
WIRE INSTRUCTIONS AND/OR ADDRESS FOR RREEF AMERICA REIT II CORP. II
RENT PAYMENT: 00 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
LEASE REFERENCE DATE: November 8, 2007
TENANT: MONTEREY GOURMET FOODS, INC.,
a Delaware corporation
TENANT'S NOTICE ADDRESS:
(a) As of beginning of Term: Monterey Gourmet Foods, Inc.
Attn: Xxxxx Xxxxx
0000 Xxxxx 000xx Xxxxxx
Xxxx, XX 00000
(b) Prior to beginning of Term (if different): Monterey Gourmet Foods, Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx X
Xxxxxxx, XX 00000
PREMISES ADDRESS: Kent 228, Building A
0000 Xxxxx 000xx Xxxxxx
Xxxx, XX 00000
PREMISES RENTABLE AREA: Approximately 93,306 sq. ft. total which includes
approximately 13,351 sq. ft. of office area (for outline of
Premises see Exhibit A).
USE: Food processing and distribution and related administrative
office uses; other general industrial uses.
COMMENCEMENT DATE: January 1, 2008
TERM OF LEASE: Initial Term: Approximately ten (10) years beginning on
the Commencement Date and ending on the Termination
Date.
Option: One (1) Five (5) year term, to be exercised in
writing 120 days in advance. After exercise of first option,
Tenant may exercise one (1) additional five (5) year
option, in writing, 120 days prior to expiration of first
option term.
INITIAL TERM TERMINATION DATE: December 31, 2017
iii
ANNUAL RENT and MONTHLY INSTALLMENT OF RENT(Article 3)
Period
---------------- Rentable Square Annual Rent Monthly Installment
from through Footage Per Square Foot Annual Rent of Rent
-----------------------------------------------------------------------------------------
1/1/2008 6/30/2008 93,306 $2.88 $268,812.00 $22,401.00
-----------------------------------------------------------------------------------------
7/1/2008 12/31/2008 93,306 $5.76 $537,624.00 $44,802.00
-----------------------------------------------------------------------------------------
1/1/2009 12/31/2009 93,306 $5.93 $553,752.00 $46,146.00
-----------------------------------------------------------------------------------------
1/1/2010 12/31/2010 93,306 $6.11 $570,360.00 $47,530.00
-----------------------------------------------------------------------------------------
1/1/2011 12/31/2011 93,306 $6.30 $587,472.00 $48,956.00
-----------------------------------------------------------------------------------------
1/1/2012 12/31/2012 93,306 $6.49 $605,100.00 $50,425.00
-----------------------------------------------------------------------------------------
1/1/2013 12/31/2013 93,306 $6.68 $623,256.00 $51,938.00
-----------------------------------------------------------------------------------------
1/1/2014 12/31/2014 93,306 $6.88 $641,952.00 $53,496.00
-----------------------------------------------------------------------------------------
1/1/2015 12/31/2015 93,306 $7.09 $661,212.00 $55,101.00
-----------------------------------------------------------------------------------------
1/1/2016 12/31/2016 93,306 $7.30 $681,048.00 $56,754.00
-----------------------------------------------------------------------------------------
1/1/2017 12/31/2017 93,306 $7.52 $701,484.00 $58,457.00
-----------------------------------------------------------------------------------------
INITIAL ESTIMATED MONTHLY INSTALLMENT $ 11,196.00
OF RENT ADJUSTMENTS (Article 4)
TENANT'S PROPORTIONATE SHARE: 23.41%
SECURITY DEPOSIT: $ 60,000.00
ASSIGNMENT/SUBLETTING FEE $ 1,000, but waived for Tenant's
first request.
REAL ESTATE BROKER DUE COMMISSION: GVA Xxxxxx Xxxxxxx and CBRE
TENANT'S SIC CODE: 2000
AMORTIZATION RATE: 12.00%
The Reference Pages information is TENANT:
incorporated into and made a part of the
Lease. In the event of any conflict
between any Reference Pages information
and the Lease, the Lease shall control.
This Lease includes Addendum to Lease and
Exhibits A through D, all of which are
made a part of this Lease. LANDLORD:
RREEF AMERICA REIT II CORP. II, MONTEREY GOURMET FOODS, INC.,
a Maryland corporation a Delaware corporation
By: RREEF Management Company,
a Delaware corporation,
its Manager
By: _________________________________ By: _______________________________
Name: Xxxxxxxx Xxxxx Name: Xxxx Xxxxxxx
Title: District Manager Title: Chief Executive Officer
Dated: ______________________________ Dated: ____________________________
iv
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord
the Premises in the Building as set forth and described on the Reference Pages.
The Premises are depicted on the floor plan attached hereto as Exhibit A, and
the Building is depicted on the site plan attached hereto as Exhibit A-1. This
Lease is solely a lease of space in the Building and does not constitute a lease
of any land. The Reference Pages, including all terms defined thereon, are
incorporated as part of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes set forth on the
Reference Pages. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure, annoy, or disturb them, or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose, or commit any waste. Tenant shall not do, permit or
suffer in, on, or about the Premises the sale of any alcoholic liquor without
the written consent of Landlord first obtained. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in the Building or appurtenant land, caused or permitted by, or
resulting from the specific use by, Tenant, or in or upon, or in connection
with, the Premises, all at Tenant's sole expense. Tenant shall not do or permit
anything to be done on or about the Premises or bring or keep anything into the
Premises which will in any way increase the rate of, invalidate or prevent the
procuring of any insurance protecting against loss or damage to the Building or
any of its contents by fire or other casualty or against liability for damage to
property or injury to persons in or about the Building or any part thereof.
1.2 Without prior consent of Landlord, Tenant shall not, and shall not
direct, suffer or permit any of its agents, contractors, employees, licensees or
invitees (collectively, the "Tenant Entities") to at any time handle, use,
manufacture, store or dispose of in or about the Premises or the Building any
(collectively "Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or materials, or other
similar substances, petroleum products or derivatives or any substance subject
to regulation by or under any federal, state and local laws and ordinances
relating to the protection of the environment or the keeping, use or disposition
of environmentally hazardous materials, substances, or wastes, presently in
effect or hereafter adopted, all amendments to any of them, and all rules and
regulations issued pursuant to any of such laws or ordinances (collectively
"Environmental Laws"), nor shall Tenant suffer or permit any Hazardous Materials
to be used in any manner not fully in compliance with all Environmental Laws, in
the Premises or the Building and appurtenant land or allow the environment to
become contaminated with any Hazardous Materials. Notwithstanding the foregoing,
Tenant may handle, store, use or dispose of products containing small quantities
of Hazardous Materials (such as aerosol cans containing insecticides, toner for
copiers, paints, paint remover and the like) to the extent customary and
necessary for the use of the Premises for general office purposes; provided that
Tenant shall always handle, store, use, and dispose of any such Hazardous
Materials in a safe and lawful manner and never allow such Hazardous Materials
to contaminate the Premises, Building and appurtenant land or the environment.
Tenant shall protect, defend, indemnify and hold each and all of the Landlord
Entities (as defined in Article 30) harmless from and against any and all loss,
claims, liability or costs (including court costs and attorney's fees) incurred
by reason of any actual or asserted failure of Tenant to fully comply with all
applicable Environmental Laws, or the presence, handling, use or disposition in
or from the Premises of any Hazardous Materials by Tenant or any Tenant Entity
(even though permissible under all applicable Environmental Laws or the
provisions of this Lease), or by reason of any actual or asserted failure of
Tenant to keep, observe, or perform any provision of this Section 1.2.
1.3 Tenant and the Tenant Entities will be entitled to the non-exclusive
use of the common areas of the Building as they exist from time to time during
the Term, including the parking facilities, subject to Landlord's rules and
regulations regarding such use. However, in no event will Tenant or the Tenant
Entities park more vehicles in the parking facilities than Tenant's
Proportionate Share of the total parking spaces available for common use. The
foregoing shall not be deemed to provide Tenant with an exclusive right to any
parking spaces or any guaranty of the availability of any particular parking
spaces or any specific number of parking spaces.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Pages and the date that Landlord shall tender possession of the
Premises to Tenant, and shall terminate on the date as shown on the Reference
Pages ("Termination Date"), unless sooner terminated by the provisions of this
Lease. Landlord shall tender possession of the Premises with all the work, if
any, to be performed by Landlord pursuant to Exhibit B to this Lease
substantially completed. Tenant shall deliver a punch list of items not
completed within thirty (30) days after Landlord tenders possession of the
Premises and Landlord agrees to proceed with due diligence to perform its
obligations regarding such items. Tenant shall, at Landlord's request, execute
and deliver a memorandum agreement provided by Landlord in the form of Exhibit C
attached hereto, setting forth the actual Commencement Date, Termination Date
and, if necessary, a revised rent schedule. Should Tenant fail to do so within
thirty (30) days after Landlord's request, the information set forth in such
memorandum provided by Landlord shall be conclusively presumed to be agreed and
correct.
2.2 Tenant agrees that in the event of the inability of Landlord to
deliver possession of the Premises on the Scheduled Commencement Date for any
reason, Landlord shall not be liable for any damage resulting from such
inability, but Tenant shall not be liable for any rent until the time when
Landlord can, after notice to Tenant, deliver possession of the Premises to
Tenant. No such failure to give possession on the Scheduled Commencement Date
shall affect the other obligations of Tenant under this Lease, except that if
Landlord is unable to deliver possession of the Premises within one hundred
twenty (120) days after the Scheduled Commencement Date (other than as a result
of strikes, shortages of materials, holdover tenancies or similar matters beyond
the reasonable control of Landlord and Tenant is notified by Landlord in writing
as to such delay), Tenant shall have the option to terminate this Lease unless
said delay is as a result of: (a) Tenant's failure to agree to plans and
specifications and/or construction cost estimates or bids; (b) Tenant's request
for materials, finishes or installations other than Landlord's standard except
those, if any, that Landlord shall have expressly agreed to furnish without
extension of time agreed by Landlord; (c) Tenant's change in any plans or
specifications; or, (d) performance or completion by a party employed by Tenant
(each of the foregoing, a "Tenant Delay"). If any delay is the result of a
Tenant Delay, the Commencement Date and the payment of rent under this Lease
shall be accelerated by the number of days of such Tenant Delay.
2.3 In the event Landlord permits Tenant, or any agent, employee or
contractor of Tenant, to enter, use or occupy the Premises prior to the
Commencement Date, such entry, use or occupancy shall be subject to all the
provisions of this Lease other than the payment of rent, including, without
limitation, Tenant's compliance with the insurance requirements of Article 11.
Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time
to time by paying the Monthly Installment of Rent then in effect on or before
the first day of each full calendar month during the Term, except that the first
month's rent shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth (1/12) of the
Annual Rent in effect at such time. Rent for any period during the Term which is
less than a full month shall be a prorated portion of the Monthly Installment of
Rent based upon the number of days in such month. Said rent shall be paid to
Landlord, without deduction or offset and without notice or demand, at the Rent
Payment Address, as set forth on the Reference Pages, or to such other person or
at such other place as Landlord may from time to time designate in writing.
Unless specified in this Lease to the contrary, all amounts and sums payable by
Tenant to Landlord pursuant to this Lease shall be deemed additional rent.
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) five
percent (5%) of the unpaid rent or other payment. The amount of the late charge
to be paid by Tenant shall be reassessed and added to Tenant's obligation for
each successive month until paid. The provisions of this Section 3.2 in no way
relieve Tenant of the obligation to pay rent or other payments on or before the
date on which they are due, nor do the terms of this Section 3.2 in any way
affect Landlord's remedies pursuant to Article 19 of this Lease in the event
said rent or other payment is unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as
follows:
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4.1.1 Lease Year: Each fiscal year (as determined by Landlord from
time to time) falling partly or wholly within the Term.
4.1.2 Expenses: All costs of operation, maintenance, repair,
replacement and management of the Building (including the amount of any credits
which Landlord may grant to particular tenants of the Building in lieu of
providing any standard services or paying any standard costs described in this
Section 4.1.2 for similar tenants), as determined in accordance with generally
accepted accounting principles, including the following costs by way of
illustration, but not limitation: water and sewer charges; insurance charges of
or relating to all insurance policies and endorsements deemed by Landlord to be
reasonably necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof; utility costs,
including, but not limited to, the cost of heat, light, power, steam, gas; waste
disposal; the cost of janitorial services; the cost of security and alarm
services (including any central station signaling system); costs of cleaning,
repairing, replacing and maintaining the common areas, including parking and
landscaping, window cleaning costs; labor costs; costs and expenses of managing
the Building including management and/or administrative fees; air conditioning
maintenance costs; elevator maintenance fees and supplies; material costs;
equipment costs including the cost of maintenance, repair and service agreements
and rental and leasing costs; purchase costs of equipment; current rental and
leasing costs of items which would be capital items if purchased; tool costs;
licenses, permits and inspection fees; wages and salaries; employee benefits and
payroll taxes; accounting and legal fees; any sales, use or service taxes
incurred in connection therewith. In addition, Landlord shall be entitled to
recover, as additional rent (which, along with any other capital expenditures
constituting Expenses, Landlord may either include in Expenses or cause to be
billed to Tenant along with Expenses and Taxes but as a separate item), Tenant's
Proportionate Share of: (a) an allocable portion of the cost of capital
improvement items which are reasonably calculated to reduce operating expenses;
(b) the cost of fire sprinklers and suppression systems and other life safety
systems; and (c) other capital expenses which are required under any
governmental laws, regulations or ordinances which were not applicable to the
Building at the time it was constructed; but the costs described in this
sentence shall be amortized over the reasonable life of such expenditures in
accordance with such reasonable life and amortization schedules as shall be
determined by Landlord in accordance with generally accepted accounting
principles, with interest on the unamortized amount at one percent (1%) in
excess of the Wall Street Journal prime lending rate announced from time to
time. Expenses shall not include depreciation or amortization of the Building or
equipment in the Building except as provided herein, loan principal payments,
costs of alterations of tenants' premises, leasing commissions, interest
expenses on long-term borrowings or advertising costs.
4.1.3 Taxes: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures and
equipment or other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and said
land, any payments to any ground lessor in reimbursement of tax payments made by
such lessor; and all fees, expenses and costs incurred by Landlord in
investigating, protesting, contesting or in any way seeking to reduce or avoid
increase in any assessments, levies or the tax rate pertaining to any Taxes to
be paid by Landlord in any Lease Year. Taxes shall not include any corporate
franchise, or estate, inheritance or net income tax, or tax or tax increase
imposed upon any transfer by Landlord of its interest in this Lease or the
Building or any taxes to be paid by Tenant pursuant to Article 28.
4.2 Tenant shall pay as additional rent for each Lease Year Tenant's
Proportionate Share of Expenses and Taxes incurred for such Lease Year.
4.3 The annual determination of Expenses shall be made by Landlord and
shall be binding upon Landlord and Tenant, subject to the provisions of this
Section 4.3. During the Term, Tenant may review, at Tenant's sole cost and
expense, the books and records supporting such determination in an office of
Landlord, or Landlord's agent, during normal business hours, upon giving
Landlord five (5) days advance written notice within sixty (60) days after
receipt of such determination, but in no event more often than once in any one
(1) year period, subject to execution of a confidentiality agreement acceptable
to Landlord, and provided that if Tenant utilizes an independent accountant to
perform such review it shall be one of national standing which is reasonably
acceptable to Landlord, is not compensated on a contingency basis and is also
subject to such confidentiality agreement. If Tenant fails to object to
Landlord's determination of Expenses within ninety (90) days after receipt, or
if any such objection fails to state with specificity the reason for the
objection, Tenant shall be deemed to have approved such determination and shall
have no further right to object to or contest such determination. In the event
that during all or any portion of any Lease Year or Base Year, the Building is
not fully rented and occupied Landlord shall make an appropriate adjustment in
occupancy-related Expenses for such year for the purpose of avoiding distortion
of the amount of such Expenses to be attributed to Tenant by reason of variation
in total occupancy of the Building, by employing consistent and sound accounting
and management principles to determine Expenses that would have been paid or
3
incurred by Landlord had the Building been at least ninety-five percent (95%)
rented and occupied, and the amount so determined shall be deemed to have been
Expenses for such Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time reasonably estimate Tenant's liability for Expenses and/or
Taxes under Section 4.2, Article 6 and Article 28 for the Lease Year or portion
thereof. Landlord will give Tenant written notification of the amount of such
estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability
for Expenses and/or Taxes is made for any Lease Year and when Tenant is so
notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is less than
Tenant's liability for Expenses and/or Taxes, then Tenant shall pay such
deficiency to Landlord as additional rent in one lump sum within thirty (30)
days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is more than
Tenant's liability for Expenses and/or Taxes, then Landlord shall, at Tenant's
option, refund or credit the difference against the then next due payments to be
made by Tenant under this Article 4, or, if the Lease has terminated, refund the
difference in cash.
4.6 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Tenant's liability for Expenses and Taxes for
the Lease Year in which said Date occurs shall be prorated based upon a three
hundred sixty-five (365) day year.
5. SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with Landlord
upon the execution of this Lease. Said sum shall be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord's damage in case of Tenant's
default. If Tenant defaults with respect to any monetary provision of this
Lease, Landlord may use any part of the Security Deposit for the payment of any
rent or any other sum in default, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of Tenant's default,
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion is so used, Tenant shall within
thirty (30) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so, after notice and reasonable opportunity to cure, shall be a
material breach of this Lease. Except to such extent, if any, as shall be
required by law, Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on
such deposit. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at such time after termination of this Lease when
Landlord shall have determined that all of Tenant's obligations under this Lease
have been fulfilled.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations if
required by the applicable planning or building department, additions and
improvements. Landlord's consent shall not be unreasonably withheld with respect
to alterations which (a) are not structural in nature, (b) are not visible from
the exterior of the Building, (c) do not affect or require modification of the
Building's electrical, mechanical, plumbing, HVAC or other systems, and (d) in
aggregate do not cost more than $5.00 per rentable square foot of that portion
of the Premises affected by the alterations in question.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made by using a contractor
reasonably approved by Landlord, in either event at Tenant's sole cost and
expense. If Tenant shall employ any contractor other than Landlord's contractor
and such other contractor or any
4
subcontractor of such other contractor shall employ any non-union labor or
supplier, Tenant shall be responsible for and hold Landlord harmless from any
and all delays, damages and extra costs suffered by Landlord as a result of any
dispute with any labor unions concerning the wage, hours, terms or conditions of
the employment of any such labor. In any event Landlord may charge Tenant a
construction management fee not to exceed five percent (5%) of the cost of such
work to cover its overhead as it relates to such proposed work, plus third-party
costs actually incurred by Landlord in connection with the proposed work and the
design thereof, with all such amounts being due five (5) days after Landlord's
demand.
6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations, using Building standard materials where applicable, and Tenant
shall, prior to construction, provide the additional insurance required under
Article 11 in such case, and also all such assurances to Landlord as Landlord
shall reasonably require to assure payment of the costs thereof, including but
not limited to, notices of non-responsibility, waivers of lien, surety company
performance bonds and funded construction escrows and to protect Landlord and
the Building and appurtenant land against any loss from any mechanic's,
materialmen's or other liens. Tenant shall pay in addition to any sums due
pursuant to Article 4, any increase in real estate taxes attributable to any
such alteration, addition or improvement for so long, during the Term, as such
increase is ascertainable; at Landlord's election said sums shall be paid in the
same way as sums due under Article 4.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached to
this Lease and except that Landlord shall repair and maintain the structural
portions of the roof, foundation and walls of the Building. By taking possession
of the Premises, Tenant accepts them as being in good order, condition and
repair and in the condition in which Landlord is obligated to deliver them,
except as set forth in the punch list to be delivered pursuant to Section 2.1.
It is hereby understood and agreed that no representations respecting the
condition of the Premises or the Building have been made by Landlord to Tenant,
except as specifically set forth in this Lease. Landlord shall not be liable for
any failure to make any repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant.
7.2 Tenant shall at its own cost and expense keep and maintain all parts
of the Premises and such portion of the Building and improvements as are within
the exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving the Premises, windows, glass and plate glass, doors,
exterior stairs, skylights, any special office entries, interior walls and
finish work, floors and floor coverings, heating and air conditioning systems
serving the Premises, electrical systems and fixtures, sprinkler systems, dock
boards, truck doors, dock bumpers, plumbing work and fixtures, and performance
of regular removal of trash and debris). Tenant as part of its obligations
hereunder shall keep the Premises in a clean and sanitary condition. Tenant
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, reasonable wear and tear and loss by fire
or other casualty excepted (but not excepting any damage to glass). Tenant
shall, at its own cost and expense, repair any damage to the Premises or the
Building resulting from and/or caused in whole or in part by the negligence or
misconduct of Tenant, its agents, employees, contractors, invitees, or any other
person entering upon the Premises as a result of Tenant's business activities or
caused by Tenant's default hereunder.
7.3 Except as provided in Article 22, there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the extent, if
any, prohibited by law, Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in effect.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord for servicing all heating and air conditioning systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Should Tenant fail to do so, Landlord may, upon notice
5
to Tenant, enter into such a maintenance/ service contract on behalf of Tenant
or perform the work and in either case, charge Tenant the cost thereof.
7.5 Landlord shall coordinate any repairs and other maintenance of any
railroad tracks serving the Building and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company from time to time upon
demand, as additional rent, for its share of the costs of such repair and
maintenance and for any other sums specified in any agreement to which Landlord
or Tenant is a party respecting such tracks, such costs to be borne
proportionately by all tenants in the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant during
each calendar year during the Term.
8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land and
Tenant's leasehold interest in the Premises free from any liens arising out of
any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant fails,
within ten (10) days following the imposition of any such lien, to either cause
the same to be released of record or provide Landlord with insurance against the
same issued by a major title insurance company or such other protection against
the same as Landlord shall accept (such failure to constitute an Event of
Default), Landlord shall have the right to cause the same to be released by such
means as it shall deem proper, including payment of the claim giving rise to
such lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be payable to it by Tenant within thirty (30) days of
Landlord's demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, such consent not to be
unreasonably withheld, and said restrictions shall be binding upon any and all
assignees of the Lease and subtenants of the Premises. In the event Tenant
desires to sublet, or permit such occupancy of, the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord at least sixty (60) days but no more than one hundred twenty (120) days
prior to the proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or assignee, the
relevant terms of any sublease or assignment and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant under this Lease, and no such collection shall be
construed to constitute a novation or release of Tenant from the further
performance of Tenant's obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within thirty
(30) days following Landlord's receipt of Tenant's written notice as required
above. However, if Tenant notifies Landlord, within five (5) days after receipt
of Landlord's termination notice, that Tenant is rescinding its proposed
assignment or sublease, the termination notice shall be void and the Lease shall
continue in full force and effect. If this Lease shall be terminated with
respect to the entire Premises pursuant to this Section, the Term of this Lease
shall end on the date stated in Tenant's notice as the effective date of the
sublease or assignment as if that date had been originally fixed in this Lease
for the expiration of the Term. If Landlord recaptures under this Section only a
portion of the Premises, the rent to be paid from time to time during the
unexpired Term shall xxxxx proportionately based on the proportion by which the
approximate square footage of the remaining portion of the Premises shall be
less than that of the Premises as of the date immediately prior to such
recapture. Tenant shall, at Tenant's own cost and expense, discharge in full any
outstanding commission obligation which may be due and owing as a result of any
proposed assignment or subletting, whether or not the Premises are recaptured
pursuant to this Section 9.3 and rented by Landlord to the proposed tenant or
any other tenant.
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9.4 [Deleted].
9.5 Notwithstanding any other provision hereof, it shall be considered
reasonable for Landlord to withhold its consent to any assignment of this Lease
or sublease of any portion of the Premises if at the time of either Tenant's
notice of the proposed assignment or sublease or the proposed commencement date
thereof, there shall exist any uncured default of Tenant or matter which will
become a default of Tenant with passage of time unless cured, or if the proposed
assignee or sublessee is an entity: (a) with which Landlord is already in
negotiation; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; or (e) would subject the Premises to a use which would: (i) involve
increased personnel or wear upon the Building; (ii) violate any exclusive right
granted to another tenant of the Building; (iii) require any addition to or
modification of the Premises or the Building in order to comply with building
code or other governmental requirements; or, (iv) involve a violation of Section
1.2. Tenant expressly agrees that for the purposes of any statutory or other
requirement of reasonableness on the part of Landlord, Landlord's refusal to
consent to any assignment or sublease for any of the reasons described in this
Section 9.5, shall be conclusively deemed to be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's
costs, including reasonable attorney's fees, incurred in investigating and
considering any proposed or purported assignment or pledge of this Lease or
sublease of any of the Premises, regardless of whether Landlord shall consent
to, refuse consent, or determine that Landlord's consent is not required for,
such assignment, pledge or sublease. Any purported sale, assignment, mortgage,
transfer of this Lease or subletting which does not comply with the provisions
of this Article 9 shall be void.
9.7 If Tenant is a corporation, limited liability company, partnership or
trust, any transfer or transfers of or change or changes within any twelve (12)
month period in the number of the outstanding voting shares of the corporation
or limited liability company, the general partnership interests in the
partnership or the identity of the persons or entities controlling the
activities of such partnership or trust resulting in the persons or entities
owning or controlling a majority of such shares, partnership interests or
activities of such partnership or trust at the beginning of such period no
longer having such ownership or control shall be regarded as equivalent to an
assignment of this Lease to the persons or entities acquiring such ownership or
control and shall be subject to all the provisions of this Article 9 to the same
extent and for all intents and purposes as though such an assignment.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any
injury to any person in or about the Premises or the Building by or from any
cause whatsoever (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft), except to the extent caused by or
arising from the gross negligence or willful misconduct of Landlord or its
agents, employees or contractors. Each party shall protect, indemnify and hold
the other harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of (a) any damage
to any property (including but not limited to property of any Landlord Entity)
or any injury (including but not limited to death) to any person occurring in,
on or about the Premises or the Building to the extent that such injury or
damage shall be caused by or arise from any actual or alleged act, neglect,
fault, or omission by either party to meet any standards imposed by any duty
with respect to the injury or damage; (b) the conduct or management of any work
or thing whatsoever done by Tenant in or about the Premises or from transactions
of the Tenant concerning the Premises; (c) Tenant's failure to comply with any
and all governmental laws, ordinances and regulations applicable to the
condition or use of the Premises or its occupancy; or (d) any breach or default
on the part of either party in the performance of any covenant or agreement to
be performed pursuant to this Lease. The provisions of this Article shall
survive the termination of this Lease with respect to any claims or liability
accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000 per occurrence and
not less than $2,000,000 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than
7
$1,000,000 per accident; (c) Worker's Compensation Insurance with limits as
required by statute and Employers Liability with limits of $500,000 each
accident, $500,000 disease policy limit, $500,000 disease--each employee for
employers with employees in states other than Washington. For employers with
employees solely in the State of Washington, evidence of coverage in the state
worker's compensation program. Stop gap coverage is required either through the
state program or as part of the employer's general liability coverage; (d) All
Risk or Special Form coverage protecting Tenant against loss of or damage to
Tenant's alterations, additions, improvements, carpeting, floor coverings,
panelings, decorations, fixtures, inventory and other business personal property
situated in or about the Premises to the full replacement value of the property
so insured; and, (e) Business Interruption Insurance with limit of liability
representing loss of at least approximately six (6) months of income.
11.2 The aforesaid policies shall (a) be provided at Tenant's expense; (b)
name the Landlord Entities as additional insureds (General Liability) and loss
payee (Property--Special Form); (c) be issued by an insurance company with a
minimum Best's rating of "A-:VII" during the Term; and (d) provide that said
insurance shall not be canceled unless thirty (30) days prior written notice
(ten days for non-payment of premium) shall have been given to Landlord; a
certificate of Liability insurance on XXXXX Form 25 and a certificate of
Property insurance on XXXXX form 28 shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to each renewal
of said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance
must be delivered to Landlord prior to the commencement of any such Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers so permit,
Tenant and Landlord hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage, All Risks or
other insurance now or hereafter existing for the benefit of the respective
party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler system charges and other utilities and
services used on or from the Premises, together with any taxes, penalties, and
surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts,
battery packs for emergency lighting and fire extinguishers. If any such
services are not separately metered to Tenant, Tenant shall pay its
Proportionate Share of all charges jointly metered with other premises. Any such
charges paid by Landlord and assessed against Tenant shall be payable to
Landlord within thirty (30 days of demand and shall be additional rent
hereunder. Tenant will not, without the written consent of Landlord, contract
with a utility provider to service the Premises with any utility, including, but
not limited to, telecommunications, electricity, water, sewer or gas, which is
not previously providing such service to other tenants in the Building. Landlord
shall in no event be liable for any interruption or failure of utility services
on or to the Premises.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate ("Holdover Rate") which shall be One
Hundred and Fifty Percent (150%) of the greater of (a) the amount of the Annual
Rent for the last period prior to the date of such termination plus all Rent
Adjustments under Article 4; and (b) the then market rental value of the
Premises as reasonably determined by Landlord assuming a new lease of the
Premises of the then usual duration and other terms, in either case, prorated on
a daily basis, and also pay all damages sustained by Landlord by reason of such
retention. If Landlord gives notice to Tenant of Landlord's election to such
effect, such holding over shall constitute renewal of this Lease for a period
from month to month at the Holdover Rate, but if the Landlord does not so elect,
no such renewal shall result notwithstanding acceptance by Landlord of any sums
due hereunder after such termination; and instead, a tenancy at sufferance at
the Holdover Rate shall be deemed to have been created. In any event, no
provision of this Article 14 shall be deemed to waive Landlord's right of
reentry or any other right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to ground or underlying leases and
to the lien of any mortgages or deeds of trust now or hereafter placed on,
against or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the
lessor, mortgagee, trustee, or holder
8
of any such mortgage or deed of trust elects to have Tenant's interest in this
Lease be superior to any such instrument, then, by notice to Tenant, this Lease
shall be deemed superior, whether this Lease was executed before or after said
instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver within ten (10) days of Landlord's request such further
instruments evidencing such subordination or superiority of this Lease as may be
required by Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all
the rules and regulations as set forth in Exhibit D to this Lease and all
reasonable and non-discriminatory modifications of and additions to them from
time to time put into effect by Landlord. Landlord shall not be responsible to
Tenant for the non-performance by any other tenant or occupant of the Building
of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall upon advance notice except in the case of
an emergency have the right to reenter the Premises to inspect the same, to show
said Premises to prospective purchasers, mortgagees or (within the last six (6)
months of the Term) tenants, and to alter, improve or repair the Premises and
any portion of the Building, without abatement of rent so long as Tenant's
business is uninterrupted, and may for that purpose erect, use and maintain
scaffolding, pipes, conduits and other necessary structures and open any wall,
ceiling or floor in and through the Building and Premises where reasonably
required by the character of the work to be performed, provided entrance to the
Premises shall not be blocked thereby, and further provided that the business of
Tenant shall not be interfered with unreasonably. Landlord shall have the right
at any time to change the arrangement and/or locations of entrances, or
passageways, doors and doorways, and corridors, windows, elevators, stairs,
toilets or other public parts of the Building and to change the name, number or
designation by which the Building is commonly known. In the event that Landlord
damages any portion of any wall or wall covering, ceiling, or floor or floor
covering within the Premises, Landlord shall promptly repair or replace the
damaged portion to match the original as nearly as commercially reasonable but
shall not be required to repair or replace more than the portion actually
damaged. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17.
17.2 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord
within five (5) days of Landlord's demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events
shall be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming
due to be paid to Landlord under this Lease, whether such sum be any installment
of the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five (5) days after written notice that
such payment was not made when due.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within thirty (30) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant and Tenant's failure to cure, provided, however, that such failure
shall not be an event of default if such failure could not reasonably be cured
during such thirty (30) day period, Tenant has commenced the cure within such
thirty (30) day period and thereafter is diligently pursuing such cure to
completion, but the total aggregate cure period shall not exceed ninety (90)
days.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
9
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in bankruptcy or
a petition to take advantage of any insolvency statute, make an assignment for
the benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
sixty (60) days from the date of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of
any of the Events of Default described or referred to in Article 18, Landlord
shall have the option to pursue any one or more of the following remedies
without any notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease,
subject to Landlord's duty to mitigate damages.
19.1.2 Upon any termination of this Lease, whether by lapse of time
or otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such re-entry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time
or otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent under this Lease, and other
sums due and payable by Tenant on the date of termination, plus as liquidated
damages and not as a penalty, an amount equal to the sum of: (a) an amount equal
to the then present value of the rent reserved in this Lease for the residue of
the stated Term of this Lease including any amounts treated as additional rent
under this Lease and all other sums provided in this Lease to be paid by Tenant,
minus the fair rental value of the Premises for such residue; (b) the value of
the time and expense necessary to obtain a replacement tenant or tenants, and
the estimated expenses described in Section 19.1.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself; and (c) the cost
of performing any other covenants which would have otherwise been performed by
Tenant subject to Landlord's duty to mitigate damages.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
19.1.4.1 Neither such termination of Tenant's right to
possession nor Landlord's taking and holding possession thereof as provided in
Section 19.1.2 shall terminate the Lease or release Tenant, in whole or in part,
from any obligation, including Tenant's obligation to pay the rent, including
any amounts treated as additional rent, under this Lease for the full Term, and
if Landlord so elects Tenant shall continue to pay to Landlord the entire amount
of the rent as and when it becomes due, including any amounts treated as
additional rent under this Lease, for the remainder of the Term plus any other
sums provided in this Lease to be paid by Tenant for the remainder of the Term
subject to Landlord's duty to mitigate damages.
19.1.4.2 Landlord shall use all commercially reasonable
efforts to relet the Premises or portions thereof to the extent required by
applicable law. Landlord and Tenant agree that nevertheless Landlord shall at
most be required to use only the same efforts Landlord then uses to lease
premises in the Building generally and that in any case that Landlord shall not
be required to give any preference or priority to the showing or leasing of the
Premises or portions
10
thereof over any other space that Landlord may be leasing or have available and
may place a suitable prospective tenant in any such other space regardless of
when such other space becomes available and that Landlord shall have the right
to relet the Premises for a greater or lesser term than that remaining under
this Lease, the right to relet only a portion of the Premises, or a portion of
the Premises or the entire Premises as a part of a larger area, and the right to
change the character or use of the Premises. In connection with or in
preparation for any reletting, Landlord may, but shall not be required to, make
necessary repairs in or to the Premises and redecorate (limited to "builder's
standard" carpeting and paint) the same to the extent Landlord deems necessary
or desirable, and, Tenant shall pay the cost thereof, together with Landlord's
expenses of reletting, including, without limitation, any reasonable commission
incurred by Landlord, within thirty (30) days of Landlord's demand. Landlord
shall not be required to observe any instruction given by Tenant about any
reletting or accept any tenant offered by Tenant unless such offered tenant has
a credit-worthiness acceptable to Landlord and is willing to lease the Premises
upon terms and conditions including a rate of rent (after giving effect to all
expenditures by Landlord for tenant improvements, broker's commissions and other
leasing costs) all no less favorable to Landlord than as called for in this
Lease, nor shall Landlord be required to make or permit any assignment or
sublease for more than the current term or which Landlord would not be required
to permit under the provisions of Article 9.
19.1.4.3 Until such time as Landlord shall elect to terminate
the Lease and shall thereupon be entitled to recover the amounts specified in
such case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full
amount of all rent, including any amounts treated as additional rent under this
Lease and other sums reserved in this Lease for the remaining Term, together
with the costs of repairs, alterations, additions, redecorating (limited to
"builder's standard" carpeting and paint) and Landlord's expenses of reletting
and the collection of the rent accruing therefrom (including reasonable
attorney's fees and broker's commissions), as the same shall then be due or
become due from time to time, less only such consideration as Landlord may have
received from any reletting of the Premises; and Tenant agrees that Landlord may
file suits from time to time to recover any sums falling due under this Article
19 as they become due, subject to Landlord's duty to mitigate damages. Any
proceeds of reletting by Landlord in excess of the amount then owed by Tenant to
Landlord from time to time shall be credited against Tenant's future obligations
under this Lease but shall not otherwise be refunded to Tenant or inure to
Tenant's benefit.
19.2 Upon the occurrence of an Event of Default, Landlord may (but shall
not be obligated to) cure such default at Tenant's sole expense. Without
limiting the generality of the foregoing, Landlord may, at Landlord's option,
enter into and upon the Premises if Landlord determines in its reasonable
discretion that Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Tenant is responsible under this
Lease or to otherwise effect compliance with its obligations under this Lease
and correct the same, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without incurring any liability for
any damage or interruption of Tenant's business resulting therefrom and Tenant
agrees to reimburse Landlord within thirty (30) days of Landlord's demand as
additional rent, for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease, plus interest from the
date of expenditure by Landlord at the Wall Street Journal prime rate.
19.3 Tenant understands and agrees that in entering into this Lease,
Landlord is relying upon receipt of all the Annual and Monthly Installments of
Rent to become due with respect to all the Premises originally leased hereunder
over the full Initial Term of this Lease for amortization, including interest at
the Amortization Rate. For purposes hereof, the "Concession Amount" shall be
defined as the aggregate of all amounts forgone or expended by Landlord as free
rent under the lease, under Exhibit B hereof for construction allowances
(excluding therefrom any amounts expended by Landlord for Landlord's Work, as
defined in Exhibit B), and for brokers' commissions payable by reason of this
Lease. Accordingly, Tenant agrees that if this Lease or Tenant's right to
possession of the Premises leased hereunder shall be terminated as of any date
("Default Termination Date") prior to the expiration of the full Initial Term
hereof by reason of a default of Tenant, there shall be due and owing to
Landlord as of the day prior to the Default Termination Date, as rent in
addition to all other amounts owed by Tenant as of such Date, the amount
("Unamortized Amount") of the Concession Amount determined as set forth below;
provided, however, that in the event that such amounts are recovered by Landlord
pursuant to any other provision of this Article 19, Landlord agrees that it
shall not attempt to recover such amounts pursuant to this Paragraph 19.3. For
the purposes hereof, the Unamortized Amount shall be determined in the same
manner as the remaining principal balance of a mortgage with interest at the
Amortization Rate payable in level payments over the same length of time as from
the effectuation of the Concession concerned to the end of the full Initial Term
of this Lease would be determined. The foregoing provisions shall also apply to
and upon any reduction of space in the Premises, as though such reduction were a
termination for Tenant's default, except that (a) the Unamortized Amount shall
be reduced by any amounts paid by Tenant to Landlord to effectuate such
reduction and (b) the manner of application shall be that the Unamortized Amount
shall first be determined as though for a full termination as of the Effective
Date of the elimination of the portion, but then the amount so
11
determined shall be multiplied by the fraction of which the numerator is the
rentable square footage of the eliminated portion and the denominator is the
rentable square footage of the Premises originally leased hereunder; and the
amount thus obtained shall be the Unamortized Amount.
19.4 If, on account of any breach or default by either party under the
terms and conditions of this Lease, it shall become necessary or appropriate to
employ or consult with an attorney or collection agency concerning or to enforce
or defend any rights or remedies arising under this Lease or to collect any sums
due thereunder, the prevailing party in such dispute is entitled to recover all
reasonable costs and attorney fees so incurred, including, without limitation,
reasonable attorneys' fees and costs. TENANT EXPRESSLY WAIVES ANY RIGHT TO: (A)
TRIAL BY JURY.
19.5 Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies provided in this Lease or any other remedies
provided by law (all such remedies being cumulative), nor shall pursuit of any
remedy provided in this Lease constitute a forfeiture or waiver of any rent due
to Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.6 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
19.7 [Deleted].
19.8 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
reasonable expenses incurred in such removal and all storage charges against
such property so long as the same shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant not retaken by Tenant from
storage within thirty (30) days after removal from the Premises shall, at
Landlord's option, be deemed conveyed by Tenant to Landlord under this Lease as
by a xxxx of sale without further payment or credit by Landlord to Tenant.
19.9 If more than one (1) Event of Default occurs during the Term or any
renewal thereof, Tenant's renewal options, expansion options, purchase options
and rights of first offer and/or refusal, if any are provided for in this Lease,
shall be null and void.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
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20.1.1.2 Tenant's Representative or the proposed assignee, as
the case shall be, shall have deposited with Landlord as security for the timely
payment of rent an amount equal to the larger of: (a) three (3) months' rent and
other monetary charges accruing under this Lease; and (b) any sum specified in
Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, while paying the rental and
performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. CASUALTY
22.1 In the event the Premises or the Building are damaged by fire or
other cause and in a licensed contractor's reasonable estimation such damage can
be materially restored within one hundred eighty (180) days, Landlord shall
forthwith repair the same and this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate abatement in rent from
the date of such damage. Such abatement of rent shall be made pro rata in
accordance with the extent to which the damage and the making of such repairs
shall interfere with the use and occupancy by Tenant of the Premises from time
to time. Within forty-five (45) days from the date of such damage, Landlord
shall notify Tenant, in writing, of Landlord's reasonable estimation of the
length of time within which material restoration can be made, and Landlord's
determination shall be binding on Tenant. For purposes of this Lease, the
Building or Premises shall be deemed "materially restored" if they are in such
condition as would not prevent or materially interfere with Tenant's use of the
Premises for the purpose for which it was being used immediately before such
damage.
22.2 If such repairs cannot, in a licensed contractor's reasonable
estimation, be made within one hundred eighty (180) days, Landlord and Tenant
shall each have the option of giving the other, at any time within ninety (90)
days after such damage, notice terminating this Lease as of the date of such
damage. In the event of the giving of such notice, this Lease shall expire and
all interest of the Tenant in the Premises shall terminate as of the date of
such damage as if such date had been originally fixed in this Lease for the
expiration of the Term. In the event that neither Landlord nor Tenant exercises
its option to terminate this Lease, then Landlord shall repair or restore such
damage, this Lease continuing in full force and effect, and the rent hereunder
shall be proportionately abated as provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or
loss by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises by, or belonging to, Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or damage
to the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 22.4, Tenant may at its option and as its
sole
13
remedy terminate this Lease by delivering written notice to Landlord, within
fifteen (15) days after the expiration of said period of time, whereupon the
Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 22, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation,
if such taking or appropriation shall be so substantial as to materially
interfere with Tenant's use and occupancy of the Premises. If neither party to
this Lease shall so elect to terminate this Lease, the rental thereafter to be
paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the
Building shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain or conveyance in lieu thereof, and regardless
of whether the Premises or any part thereof are so taken or appropriated,
Landlord shall have the right, at its sole option, to terminate this Lease.
Landlord shall be entitled to any and all income, rent, award, or any interest
whatsoever in or upon any such sum, which may be paid or made in connection with
any such public or quasi-public use or purpose, and Tenant hereby assigns to
Landlord any interest it may have in or claim to all or any part of such sums,
other than any separate award which may be made with respect to Tenant's trade
fixtures and moving expenses; Tenant shall make no claim for the value of any
unexpired Term.
24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the
Building, the same shall operate to release Landlord from any future liability
upon any of the covenants or conditions, expressed or implied, contained in this
Lease in favor of Tenant, and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
Except as set forth in this Article 24, this Lease shall not be affected by any
such sale and Tenant agrees to attorn to the purchaser or assignee. If any
security has been given by Tenant to secure the faithful performance of any of
the covenants of this Lease, Landlord may transfer or deliver said security, as
such, to Landlord's successor in interest and thereupon Landlord shall be
discharged from any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant shall execute and deliver to
Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a)
the date of commencement of this Lease; (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications to
this Lease, that this Lease is in full force and effect, as modified, and
stating the date and nature of such modifications); (c) the date to which the
rent and other sums payable under this Lease have been paid; (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (e) such other matters as may be
requested by Landlord. Landlord and Tenant intend that any statement delivered
pursuant to this Article 25 may be relied upon by any mortgagee, beneficiary or
purchaser, and Tenant shall be liable for all loss, cost or expense resulting
from the failure of any sale or funding of any loan caused by any material
14
misstatement contained in such estoppel certificate. Tenant irrevocably agrees
that if Tenant fails to execute and deliver such certificate within such ten
(10) day period Landlord or Landlord's beneficiary or agent may execute and
deliver such certificate on Tenant's behalf, and that such certificate shall be
fully binding on Tenant.
26. SURRENDER OF PREMISES.
26.1 Tenant shall arrange to meet Landlord for two (2) joint inspections
of the Premises, the first to occur at least thirty (30) days (but no more than
sixty (60) days) before the last day of the Term, and the second to occur not
later than forty-eight (48) hours after Tenant has vacated the Premises. In the
event of Tenant's failure to arrange such joint inspections and/or participate
in either such inspection, Landlord's inspection at or after Tenant's vacating
the Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
26.2 All alterations, additions, and improvements in, on, or to the
Premises made or installed by or for Tenant, including, without limitation,
carpeting (collectively, "Alterations"), shall be and remain the property of
Tenant during the Term. Upon the expiration or sooner termination of the Term,
all permanently affixed Alterations shall become a part of the realty and shall
belong to Landlord without compensation, and title shall pass to Landlord under
this Lease as by a xxxx of sale. At the end of the Term or any renewal of the
Term or other sooner termination of this Lease, Tenant will peaceably deliver up
to Landlord possession of the Premises, together with all permanently affixed
Alterations by whomsoever made, in the same conditions received or first
installed, broom clean and free of all debris, excepting only ordinary wear and
tear and damage by fire or other casualty. Notwithstanding the foregoing, if
Landlord elects by notice given to Tenant at least ten (10) days prior to
expiration of the Term, Tenant shall, at Tenant's sole cost, remove any
Alterations, including carpeting, so designated by Landlord's notice, and repair
any damage caused by such removal. Tenant must, at Tenant's sole cost, remove
upon termination of this Lease, any and all of Tenant's furniture, furnishings,
equipment, movable partitions of less than full height from floor to ceiling and
other trade fixtures and personal property, as well as all
data/telecommunications cabling and wiring installed by or on behalf of Tenant,
whether inside walls, under any raised floor or above any ceiling (collectively,
"Personalty"). Personalty not so removed shall be deemed abandoned by the Tenant
and title to the same shall thereupon pass to Landlord under this Lease as by a
xxxx of sale, but Tenant shall remain responsible for the cost of removal and
disposal of such Personalty, as well as any damage caused by such removal. In
lieu of requiring Tenant to remove Alterations and Personalty and repair the
Premises as aforesaid, Landlord may, by written notice to Tenant delivered at
least thirty (30) days before the Termination Date, require Tenant to pay to
Landlord, as additional rent hereunder, the cost of such removal and repair in
an amount reasonably estimated by Landlord.
26.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term Upon the expiration or earlier termination of
the Term, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary to repair and restore the Premises as provided in this Lease,
reasonable wear and tear excepted, and/or to discharge Tenant's obligation for
unpaid amounts due or to become due to Landlord. All such amounts shall be used
and held by Landlord for payment of such obligations of Tenant, with Tenant
being liable for any additional costs upon demand by Landlord, or with any
excess to be returned to Tenant after all such obligations have been determined
and satisfied. Any otherwise unused Security Deposit shall be credited against
the amount payable by Tenant under this Lease, or refunded if at the expiration
or earlier termination of the Term.
27. NOTICES. Any notice or document required or permitted to be delivered under
this Lease shall be addressed to the intended recipient, by fully prepaid
registered or certified United States Mail return receipt requested, or by
reputable independent contract delivery service furnishing a written record of
attempted or actual delivery, and shall be deemed to be delivered when tendered
for delivery to the addressee at its address set forth on the Reference Pages,
or at such other address as it has then last specified by written notice
delivered in accordance with this Article 27, or if to Tenant at either its
aforesaid address or its last known registered office or home of a general
partner or individual owner, whether or not actually accepted or received by the
addressee. Any such notice or document may also be personally delivered if a
receipt is signed by and received from, the individual, if any, named in
Tenant's Notice Address.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by
Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any
and all taxes payable by Landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties to this Lease: (a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by the State, any political subdivision thereof, or the Federal
Government with respect to the receipt of such rent; (b) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the
15
Premises or any portion thereof, including any sales, use or service tax imposed
as a result thereof; (c) upon or measured by the Tenant's gross receipts or
payroll or the value of Tenant's equipment, furniture, fixtures and other
personal property of Tenant or leasehold improvements, alterations or additions
located in the Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring any interest of Tenant in this Lease
or the Premises. In addition to the foregoing, Tenant agrees to pay, before
delinquency, any and all taxes levied or assessed against Tenant and which
become payable during the term hereof upon Tenant's equipment, furniture,
fixtures and other personal property of Tenant located in the Premises.
29. RELOCATION OF TENANT. [Deleted]
30. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for
convenience of reference and shall in no way define, increase, limit or describe
the scope or intent of any provision of this Lease. Any indemnification or
insurance of Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, Landlord's investment manager,
and the trustees, boards of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of them. Any option
granted to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case where this
Lease is signed by more than one person, the obligations under this Lease shall
be joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, firms or corporations, and their and each of
their respective successors, executors, administrators and permitted assigns,
according to the context hereof. The term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications of the Building including a
proportionate share of any common areas. Tenant hereby accepts and agrees to be
bound by the figures for the rentable square footage of the Premises and
Tenant's Proportionate Share shown on the Reference Pages; however, Landlord may
adjust either or both figures if there is manifest error, addition or
subtraction to the Building or any business park or complex of which the
Building is a part, remeasurement or other circumstance reasonably justifying
adjustment. The term "Building" refers to the structure in which the Premises
are located and the common areas (parking lots, sidewalks, landscaping, etc.)
appurtenant thereto. If the Building is part of a larger complex of structures,
the term "Building" may include the entire complex, where appropriate (such as
shared Expenses or Taxes) and subject to Landlord's reasonable discretion.
31. TENANT'S AUTHORITY. If Tenant signs as a corporation, partnership, trust or
other legal entity each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has been and is qualified to do business in
the state in which the Building is located, that the entity has full right and
authority to enter into this Lease, and that all persons signing on behalf of
the entity were authorized to do so by appropriate actions. Tenant agrees to
deliver to Landlord, simultaneously with the delivery of this Lease, a corporate
resolution, proof of due authorization by partners, opinion of counsel or other
appropriate documentation reasonably acceptable to Landlord evidencing the due
authorization of Tenant to enter into this Lease.
Tenant hereby represents and warrants that neither Tenant, nor any persons or
entities holding any legal or beneficial interest whatsoever in Tenant, are (a)
the target of any sanctions program that is established by Executive Order of
the President or published by the Office of Foreign Assets Control, U.S.
Department of the Treasury ("OFAC"); (b) designated by the President or OFAC
pursuant to the Trading with the Enemy Act, 50 U.S.C. App. Section 5, the
International Emergency Economic Powers Act, 50 U.S.C. Sections 1701-06, the
Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or
any Executive Order of the President issued pursuant to such statutes; or (c)
named on the following list that is published by OFAC: "List of Specially
Designated Nationals and Blocked Persons." If the foregoing representation is
untrue at any time during the Term, an Event of Default will be deemed to have
occurred, without the necessity of notice to Tenant.
32. FINANCIAL STATEMENTS AND CREDIT REPORTS. At Landlord's request, Tenant shall
deliver to Landlord a copy, certified by an officer of Tenant as being a true
and correct copy, of Tenant's most recent audited financial statement, or, if
unaudited, certified by Tenant's chief financial officer as being true, complete
and correct in all material respects. Tenant hereby authorizes Landlord to
obtain one or more credit reports on Tenant at any time, and shall execute such
further authorizations as Landlord may reasonably require in order to obtain a
credit report.
33. COMMISSIONS. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Pages.
16
34. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
state in which the Building is located.
35. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of the heirs, successors, executors, administrators and assigns
of the parties to this Lease.
36. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
agreements of the parties to this Lease and supersedes any previous
negotiations. There have been no representations made by the Landlord or any of
its representatives or understandings made between the parties other than those
set forth in this Lease and its exhibits. This Lease may not be modified except
by a written instrument duly executed by the parties to this Lease.
37. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound by this Lease until it
has received a copy of this Lease duly executed by Tenant and has delivered to
Tenant a copy of this Lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Article 5, the first month's rent as set forth in Article 3 and any
sum owed pursuant to this Lease.
38. RECORDATION. Tenant shall not record or register this Lease or a short form
memorandum hereof without the prior written consent of Landlord, and then shall
pay all charges and taxes incident such recording or registration.
39. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim against Landlord
under this Lease shall be limited to and enforceable only against and to the
extent of Landlord's interest in the Building. The obligations of
Landlord under this Lease are not intended to be and shall not be personally
binding on, nor shall any resort be had to the private properties of, any of its
or its investment manager's trustees, directors, officers, partners,
beneficiaries, members, stockholders, employees, or agents, and in no case shall
Landlord be liable to Tenant hereunder for any lost profits, damage to business,
or any form of special, indirect or consequential damages.
LANDLORD: TENANT:
RREEF AMERICA REIT II CORP. II, MONTEREY GOURMET FOODS, INC.,
a Maryland corporation a Delaware corporation
By: RREEF Management Company,
a Delaware corporation,
its Manager
By: _______________________________ By: _______________________________
Name: Xxxxxxxx Xxxxx Name: Xxxx Xxxxxxx
Title: District Manager Title: Chief Executive Officer
Dated: ____________________________ Dated: ____________________________
17
ADDENDUM TO LEASE
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXXXXXX REIT II CORP. II, a Maryland corporation, as Landlord and
MONTEREY GOURMET FOODS, INC., a Delaware corporation, as Tenant
EARLY OCCUPANCY
In order to facilitate Tenants installation of equipment, Tenant shall have
access to the Premises upon full execution of this Lease by both Tenant and
Landlord. Early occupancy shall be conditioned on termination of existing lease
of the Premises by Sealed Air Corporation and provided such access does not
interfere with Landlord's work. Prior to early occupancy, Tenant shall provide
Landlord with proof of insurance coverage in compliance with the Terms of the
Lease (Article 11). Tenant shall notify Puget Sound Energy to transfer utilities
(gas and electricity) to Tenant's name and billing address as of the date of
occupancy.
Landlord and Tenant agree that all the terms and conditions of the Lease are in
full force and effect as of the date of Tenant's possession of the Premises
other than the payment of Rent.
RENEWAL OPTION
Tenant shall, provided the Lease is in full force and effect and Tenant is not
in default under any of the other terms and conditions of the Lease at the time
of notification or commencement, have one (1) option to renew this Lease, for a
term of five (5) years, for the portion of the Premises being leased by Tenant
as of the date the renewal term is to commence, on the same terms and conditions
set forth in the Lease, except as modified by the terms, covenants and
conditions as set forth below ("First Option"):
a. If Tenant elects to exercise said First Option, then Tenant shall
provide Landlord with written notice no later than the date which is
one-hundred twenty (120) days prior to the expiration of Initial
Term of this Lease. If Tenant fails to provide such notice, Tenant
shall have no further or additional right to extend or renew the
term of the Lease.
b. The Annual Rent and Monthly Installment in effect at the expiration
of the then current term of the Lease shall be increased to reflect
the current fair market rental for comparable space in the Building
and in other similar buildings in the same rental market as of the
date the renewal term is to commence, taking into account the
specific provisions of the Lease which will remain constant.
Landlord shall advise Tenant of the new Annual Rent and Monthly
Installment for the Premises no later than thirty (30) days after
receipt of Tenant's written request therefor. Said notification of
the new Annual Rent may include a provision for its escalation to
provide for a change in fair market rental between the time of
notification and the commencement of the renewal term. In no event
shall the Annual Rent and Monthly Installment for any option period
be less than the Annual Rent and Monthly Installment in the
preceding period.
c. This First Option is not transferable; the parties hereto
acknowledge and agree that they intend that the aforesaid First
Option to renew this Lease shall be "personal" to Tenant as set
forth above and that in no event will any assignee or sublessee have
any rights to exercise the aforesaid option to renew.
After proper exercise of the First Option, Tenant shall, provided the Lease is
in full force and effect and Tenant is not in default under any of the other
terms and conditions of the Lease at the time of notification or commencement,
have one (1) additional option to renew this Lease for an additional term of
five (5) years, for the portion of the Premises being leased by Tenant as of the
date the renewal term is to commence, on the same terms and conditions set forth
in the Lease, except as modified by the terms, covenants and conditions as set
forth below ("Second Option"):
a. If Tenant elects to exercise said Second Option, then Tenant shall
provide Landlord with written notice no later than the date which is
one-hundred twenty (120) days prior to the expiration of the First
Option term of this Lease. If Tenant fails to provide such notice,
Tenant shall have no further or additional right to extend or renew
the term of the Lease.
d. The Annual Rent and Monthly Installment in effect at the expiration
of the First Option term of the Lease shall be increased to reflect
the current fair market rental for comparable space in the Building
and in other similar buildings in the same rental market as of the
date the Second Option term is to commence, taking into account the
specific provisions of the Lease which will remain constant.
Landlord shall advise Tenant of the new Annual Rent and Monthly
Installment for the Premises no later than thirty (30) days after
receipt of Tenant's written request therefor. Said notification of
the new Annual Rent may include a provision for its escalation to
provide for a change in fair market rental between the time of
notification and the commencement of the renewal term. In no event
shall the Annual Rent and Monthly Installment for any option period
be less than the Annual Rent and Monthly Installment in the
preceding period.
e. This Second Option is not transferable; the parties hereto
acknowledge and agree that they intend that the aforesaid option to
renew this Lease shall be "personal" to Tenant as set forth above
and that in no event will any assignee or sublessee have any rights
to exercise the aforesaid option to renew.
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EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXXXXXX REIT II CORP. II, a Maryland corporation, as Landlord and
MONTEREY GOURMET FOODS, INC., a Delaware corporation, as Tenant
Premises Address: Kent 228, Building A, 0000 Xxxxx 000xx Xxxxxx, Xxxx, XX 00000
Approximate Premises Square Footage: 93,306 SF
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
Premises
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EXHIBIT A-1 - SITE PLAN
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXXXXXX REIT II CORP. II, a Maryland corporation, as Landlord and
MONTEREY GOURMET FOODS, INC., a Delaware corporation, as Tenant
Exhibit A-1 is intended only to show the general location of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
EXHIBIT A-2 - LEGAL DESCRIPTION
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXXXXXX REIT II CORP. II, a Maryland corporation, as Landlord and
MONTEREY GOURMET FOODS, INC., a Delaware corporation, as Tenant
KENT 228
BUILDINGS A, B, C, & D:
PARCELS 3 AND 4, CITY OF KENT, SHORT PLAN NUMBER SPC-75-8, RECORDED UNDER KING
COUNTY RECORDING NUMBER 7509300693, BEING A PORTION OF THE NORTH HALF OF THE
NORTHEAST QUARTER OF SECTION 13, TOWNSHIP 22 NORTH, RANGE 0 XXXX, X.X., XXXX
XXXXXX, XXXXXXXXXX
XXXXXXXXX X & F:
XXX 0, XX XXXXX XXXX NUMBER SPC-75-8, ACCORDING TO THE SHORT PLAT RECORDED UNDER
KING COUNTY RECORDING NUMBER 7811200752, BEING A LOT LINE ADJUSTMENT FOR THE
SHORT PLAT NUMBER SPC-75-8, UNDER KING COUNTY RECORDING NUMBER 759300693.
SITUATE IN THE COUNTY OF KING, STATE OF WASHINGTON.
TAX PARCEL NUMBER: 132204-9139-00
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EXHIBIT B -- INITIAL ALTERATIONS
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXXXXXX REIT II CORP. II, a Maryland corporation, as Landlord and
MONTEREY GOURMET FOODS, INC., a Delaware corporation, as Tenant
Landlord, at its sole cost and expense shall complete the following
improvements:
o Replace all paint, carpet, fixtures and ceiling tiles within
southeast and northeast office mode.
o Restore warehouse to clean shell condition.
o Install two rooms outside restroom in the middle of the warehouse.
Size of each room to be approximately 12' x 20' with VCT flooring.
o All mechanical, plumbing, electrical and HVAC systems to be
delivered in good working order.
Landlord shall not be obligated to perform any other work to the Premises other
than described above. The Landlord makes no representation as to the suitability
of the Premises for Tenant's use. The Tenant shall be responsible for all other
improvements or governmental requirements necessary to obtain a valid
Certificate of Occupancy from the applicable governmental authority.
Tenant, at its sole cost and expense, may complete the following improvements:
o Cut floor slab to accommodate freezer equipment.
o Cut asphalt to accommodate sewer.
o Install internal drain line.
o Construct interior partition walls.
o Install showers in locker rooms
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EXHIBIT D - RULES AND REGULATIONS
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXXXXXX REIT II CORP. II, a Maryland corporation, as Landlord and
MONTEREY GOURMET FOODS, INC., a Delaware corporation, as Tenant
1. No sign, placard, picture, advertisement, name or notice (collectively
referred to as "Signs") shall be installed or displayed on any part of the
outside of the Building without the prior written consent of the Landlord which
consent shall be in Landlord's sole discretion. All approved Signs shall be
printed, painted, affixed or inscribed at Tenant's expense by a person or vendor
approved by Landlord and shall be removed by Tenant at Tenant's expense upon
vacating the Premises. Landlord shall have the right to remove any Sign
installed or displayed in violation of this rule at Tenant's expense and without
notice.
2. If Landlord objects in writing to any curtains, blinds, shades or screens
attached to or hung in or used in connection with any window or door of the
Premises or Building, Tenant shall immediately discontinue such use. No awning
shall be permitted on any part of the Premises. Tenant shall not place anything
or allow anything to be placed against or near any glass partitions or doors or
windows which may appear unsightly, in the opinion of Landlord, from outside the
Premises.
3. Tenant shall not alter any lock or other access device or install a new or
additional lock or access device or bolt on any door of its Premises without the
prior written consent of Landlord. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys or other means of access to all doors.
4. If Tenant requires telephone, data, burglar alarm or similar service, the
cost of purchasing, installing and maintaining such service shall be borne
solely by Tenant. No boring or cutting for wires will be allowed without the
prior written consent of Landlord. Landlord shall direct electricians as to
where and how telephone, data, and electrical wires are to be introduced or
installed. The location of burglar alarms, telephones, call boxes or other
office equipment affixed to the Premises shall be subject to the prior written
approval of Landlord.
5. Tenant shall not place a load upon any floor of its Premises, including
mezzanine area, if any, which exceeds the load per square foot that such floor
was designed to carry and that is allowed by law. Heavy objects shall stand on
such platforms as determined by Landlord to be necessary to properly distribute
the weight. Landlord will not be responsible for loss of or damage to any such
equipment or other property from any cause, and all damage done to the Building
by maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
6. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or other device on the roof or exterior walls of the Building
without Landlord's prior written consent which consent shall be in Landlord's
sole discretion.
7. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork, plaster or drywall (except for pictures and general office uses) or in
any way deface the Premises or any part thereof. Tenant shall not affix any
floor covering to the floor of the Premises or paint or seal any floors in any
manner except as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
8. No cooking shall be done or permitted on the Premises, except that
Underwriters' Laboratory approved microwave ovens or equipment for brewing
coffee, tea, hot chocolate and similar beverages shall be permitted, provided
that such equipment and use is in accordance with all applicable federal, state
and city laws, codes, ordinances, rules and regulations.
9. Tenant shall not use any hand trucks except those equipped with the rubber
tires and side guards, and may use such other material-handling equipment as
Landlord may approve. Tenant shall not bring any other vehicles of any kind into
the Building. Forklifts which operate on asphalt areas shall only use tires that
do not damage the asphalt.
10. Tenant shall not use the name of the Building or any photograph or other
likeness of the Building in connection with or in promoting or advertising
Tenant's business except that Tenant may include the Building name in Tenant's
address.
Landlord shall have the right, exercisable without notice and without liability
to any tenant, to change the name and address of the Building.
11. All trash and refuse shall be contained in suitable receptacles at locations
approved by Landlord. Tenant shall not place in the trash receptacles any
personal trash or material that cannot be disposed of in the ordinary and
customary manner of removing such trash without violation of any law or
ordinance governing such disposal.
12. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governing authority.
13. Tenant assumes all responsibility for securing and protecting its Premises
and its contents including keeping doors locked and other means of entry to the
Premises closed.
14. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without Landlord's prior written consent.
15. No person shall go on the roof without Landlord's permission.
16. Tenant shall not permit any animals, other than seeing-eye dogs, to be
brought or kept in or about the Premises or any common area of the property.
17. Tenant shall not permit any motor vehicles to be washed or mechanical work
or maintenance of motor vehicles to be performed on any portion of the Premises
or parking lot.
18. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building. Landlord
may waive any one or more of these Rules and Regulations for the benefit of any
tenant or tenants, and any such waiver by Landlord shall not be construed as a
waiver of such Rules and Regulations for any or all tenants.
19. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order in and about the Building. Tenant agrees to abide by all such rules
and regulations herein stated and any additional rules and regulations which are
adopted. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
20. Any toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown into them. The expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employees or invitees, shall have
caused it.
21. Tenant shall not permit smoking or carrying of lighted cigarettes or cigars
in areas reasonably designated by Landlord or any applicable governmental
agencies as non-smoking areas.
22. Any directory of the Building or project of which the Building is a part
("Project Area"), if provided, will be exclusively for the display of the name
and location of tenants only and Landlord reserves the right to charge for the
use thereof and to exclude any other names.
23. Canvassing, soliciting, distribution of handbills or any other written
material in the Building or Project Area is prohibited and each tenant shall
cooperate to prevent the same. No tenant shall solicit business from other
tenants or permit the sale of any goods or merchandise in the Building or
Project Area without the written consent of Landlord.
24. Any equipment belonging to Tenant which causes noise or vibration that may
be transmitted to the structure of the Building or to any space therein to such
a degree as to be objectionable to Landlord or to any tenants in the Building
shall be
placed and maintained by Tenant, at Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate the noise or vibration.
25. Driveways, sidewalks, halls, passages, exits, entrances and stairways
("Access Areas") shall not be obstructed by tenants or used by tenants for any
purpose other than for ingress to and egress from their respective premises.
Access areas are not for the use of the general public and Landlord shall in all
cases retain the right to control and prevent access thereto by all persons
whose presence, in the judgment of Landlord, shall be prejudicial to the safety,
character, reputation and interests of the Building or its tenants.
26. Landlord reserves the right to designate the use of parking areas and
spaces. Tenant shall not park in visitor, reserved, or unauthorized parking
areas. Tenant and Tenant's guests shall park between designated parking lines
only and shall not park motor vehicles in those areas designated by Landlord for
loading and unloading. Vehicles in violation of the above shall be subject to
being towed at the vehicle owner's expense. Vehicles parked overnight without
prior written consent of the Landlord shall be deemed abandoned and shall be
subject to being towed at vehicle owner's expense. Tenant will from time to
time, upon the request of Landlord, supply Landlord with a list of license plate
numbers of vehicles owned or operated by its employees or agents.
27. No trucks, tractors or similar vehicles can be parked anywhere other than in
Tenant's own truck dock area. Tractor-trailers which must be unhooked or parked
with dolly wheels beyond the concrete loading areas must use steel plates or
wood blocks under the dolly wheels to prevent damage to the asphalt paving
surfaces. No parking or storing of such trailers will be permitted in the
parking areas or on streets adjacent thereto.
28. During periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow and loading and unloading areas of other tenants.
All products, materials or goods must be stored within the Tenant's Premises and
not in any exterior areas, including, but not limited to, exterior dock
platforms, against the exterior of the Building, parking areas and driveway
areas. Tenant agrees to keep the exterior of the Premises clean and free of
nails, wood, pallets, packing materials, barrels and any other debris produced
from their operation.
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