LEASE AGREEMENT
THIS LEASE is executed this 24th day of February 2000, by and between
DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and CONTINENTAL MANAGED PHARMACY SERVICES, INC., an Ohio
corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
SECTION 1.01. BASIC LEASE PROVISIONS AND DEFINITIONS.
A. LEASED PREMISES (SHOWN CROSS HATCHED ON EXHIBIT A attached hereto): 0000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000; Building No. 132 (the "Building");
located in Westbelt West Commerce Center (the "Park");
B. Rentable Area: approximately 74,780 rentable square feet;
Landlord shall use commercially reasonable standards, consistently applied,
in determining the Rentable Area and the rentable area of the Building.
Landlord's determination of Rentable Area shall conclusively be deemed
correct for all purposes hereunder.
C. Tenant's Proportionate Share: 56.31%;
D. Minimum Annual Rent:
Year 1 $447,932.16 per year
Year 2 $467,375.04 per year
Years 3-5 $482,331.00 per year
Years 6-10 $502,521.60 per year;
E. Monthly Rental Installments:
Months 1-12 $37,327.68 per month
Months 13-24 $38,947.92 per month
Months 25-60 $40,194.25 per month
Months 61-120 $41,876.80 per month;
F. Lease Term: Ten (10) years;
G. Commencement Date: May 12, 2000;
H. Security Deposit: $37,327.68 provided at Tenant's election either by cash
deposit held by Landlord or irrevocable unconditional letter of credit, as
provided in Article 4 of the Lease;
I. Guarantor: MIM Corporation, a Delaware corporation;
J. Broker(s): Duke Realty Services Limited Partnership representing Landlord
and CB Xxxxxxx Xxxxx representing Tenant;
K. Permitted Use: Office and warehousing and storage of pharmaceuticals and
other products distributed by Tenant and related purposes;
L. Address for notices:
Landlord: Duke-Weeks Realty Limited Partnership
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Property Manager
Tenant: Continental Managed Pharmacy Services, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxxxxx 000
Xxxxxxxx, XX 00000
Guarantor: MIM Corporation
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Address for rental and other payments:
Duke-Weeks Realty Limited Partnership
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
SECTION 1.02. LEASED PREMISES. Landlord hereby leases to Tenant and
Tenant leases from Landlord, under the terms and conditions herein, the Leased
Premises.
ARTICLE 2 - TERM AND POSSESSION
SECTION 2.01. TERM. The term of this Lease ("Lease Term") shall be for
the period of time and shall commence on the Commencement Date described in the
Basic Lease Provisions. Upon delivery of possession of the Leased Premises to
Tenant, Tenant shall execute a letter of understanding acknowledging (i) the
Commencement Date of this Lease, and (ii) that Tenant has accepted the Leased
Premises. If Tenant takes possession of and occupies the Leased Premises, Tenant
shall be deemed to have accepted the Leased Premises and that the condition of
the Leased Premises and the Building was at the time satisfactory and in
conformity with the provisions of this Lease in all respects.
SECTION 2.02. CONSTRUCTION OF TENANT IMPROVEMENTS. Landlord shall have
no responsibility except to perform and complete, at Landlord's sole cost and
expense, the work on the tenant finish improvements described in THE PLANS AND
SPECIFICATIONS WHICH HAVE BEEN MUTUALLY AGREED UPON BY BOTH LANDLORD AND TENANT
AND ATTACHED HERETO AS EXHIBIT B, subject to events and delays due to causes
beyond its reasonable control. Tenant agrees that all work on any change orders
to the initial tenant finish improvements shall be performed by Duke
Construction Limited Partnership (DCLP) or a subsidiary or affiliate of Landlord
which shall receive a cost plus ten percent (10%) construction management fee,
exclusive of general conditions, as Landlord's construction manager or general
contractor; provided, however, that the construction management fee to be
charged for any subsequent tenant finish improvements shall be an amount equal
to the construction management fee then being charged by DCLP and other
reputable and experienced contractors in the Columbus, Ohio Industrial Market
for comparable improvements performed in comparable class A INDUSTRIAL
PROPERTIES. ANY COSTS FOR TENANT FINISH IMPROVEMENTS WHICH EXCEED THE SCOPE OF
THOSE DESCRIBED ON EXHIBIT B shall be the sole responsibility of Tenant. Tenant
shall reimburse Landlord for such excess costs within thirty (30) days of
Tenant's receipt of an invoice for the same. Landlord hereby agrees to warrant
all work performed by Landlord within the Leased Premises for a period of twelve
(12) months from the Commencement Date (the "Warranty Period"). After the
expiration of the Warranty Period, Landlord shall assign to Tenant all
warranties (if assignable) from subcontractors and material suppliers for
materials, workmanship, fixtures or equipment installed by Landlord in the
Leased Premises which warranties continue in effect after the expiration of the
Warranty Period.
SECTION 2.03. SURRENDER OF THE PREMISES. Upon the expiration or earlier
termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair,
reasonable wear and tear excepted. Tenant shall also remove its personal
property, trade fixtures and any of Tenant's alterations designated by Landlord,
promptly repair any damage caused by such removal, and restore the Leased
Premises to the condition existing upon the Commencement Date, reasonable wear
and tear excepted. If Tenant fails to do so, Landlord may restore the Leased
Premises to such condition at Tenant's expense, Landlord may cause all of said
property to be removed at Tenant's expense, and Tenant hereby agrees to pay all
the costs and expenses thereby reasonably incurred. All Tenant property which is
not removed within ten (10) days following Landlord's written demand therefor
shall be conclusively deemed to have been abandoned by Tenant, and Landlord
shall be entitled to dispose of such property at Tenant's cost without thereby
incurring any liability to Tenant. The provisions of this section shall survive
the expiration or other termination of this Lease.
SECTION 2.04. HOLDING OVER. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at 150% of the Monthly Rental Installment in
effect at the end of the Lease Term, and otherwise upon the terms, covenants and
conditions herein specified, so far as applicable. Acceptance by Landlord of
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rent in such event shall not result in a renewal of this Lease, and Tenant shall
vacate and surrender the Leased Premises to Landlord upon Tenant being given
thirty (30) days' prior written notice from Landlord to vacate whether or not
said notice is given on the rent paying date. This Section 2.04 shall in no way
constitute a consent by Landlord to any holding over by Tenant upon the
expiration or earlier termination of this Lease, nor limit Landlord's remedies
in such event.
ARTICLE 3 - RENT
SECTION 3.01. BASE RENT. Tenant shall pay to Landlord the Minimum
Annual Rent in the Monthly Rental Installments, in advance, without deduction or
offset, beginning on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installment for partial calendar months shall be prorated.
SECTION 3.02. ADDITIONAL RENT. In addition to the Minimum Annual Rent
Tenant shall pay to Landlord for each calendar year during the Lease Term, as
"Additional Rent," Tenant's Proportionate Share of all costs and expenses
incurred by Landlord during the Lease Term for Real Estate Taxes and Operating
Expenses for the Building and common areas (collectively "Common Area Charges").
"Operating Expenses" shall mean all of Landlord's expenses for
operation, repair, replacement (except as expressly excluded below) and
maintenance to keep the Building and common areas in good order, condition and
repair (including all additional direct costs and expenses of operation and
maintenance of the Building which Landlord reasonably determines it would have
paid or incurred during such year if the Building had been fully occupied),
including, but not limited to, management or administrative fees (which shall
not exceed five percent (5%) of Landlord's gross rents for the Building);
utilities; stormwater discharge fees; license, permit, inspection and other
fees; fees and assessments imposed by any covenants or owners' association;
security services; insurance premiums and deductibles and maintenance, repair
and replacement of the driveways, parking areas (including snow removal),
exterior lighting, landscaped areas, walkways, curbs, drainage strips, sewer
lines, exterior walls, foundation, structural frame, roof and gutters. The cost
of any capital improvement shall be amortized over the useful life of such
improvement (as reasonably determined by Landlord), and only the amortized
portion shall be included in Operating Expenses. Notwithstanding the foregoing,
Landlord agrees that Operating Expenses during the initial ten (10) year Lease
Term shall not include any capital improvement expenditure for replacement of
the entire roof, entire parking area, or structural walls for the Building.
"Real Estate Taxes" shall include any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or
common areas (or against Landlord's business of leasing the Building) by any
authority having the power to so charge or tax, together with costs and expenses
of contesting the validity or amount of Real Estate Taxes, which at Landlord's
option may be calculated as if such contesting work had been performed on a
contingent fee basis (whether charged by Landlord's counsel or representative;
provided, however, that said fees are reasonably comparable to the fees charged
for similar services by others not affiliated with Landlord, but in no event
shall said fees exceed thirty-three percent (33%) of the good faith estimated
tax savings). In the event Landlord is successful in securing a rebate or refund
from any taxing authority as a result of contesting any assessments of Real
Estate Taxes, Landlord shall refund such savings to Tenant in proportion to
Tenant's proportionate share, provided that there then exists no uncured
defaults by Tenant. Additionally, Tenant shall pay, prior to delinquency, all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and all personal property of Tenant contained in the Leased Premises.
SECTION 3.03. PAYMENT OF ADDITIONAL RENT. Landlord shall estimate the
total amount of Additional Rent to be paid by Tenant during each calendar year
of the Lease Term, pro-rated for any partial years. Commencing on the
Commencement Date, Tenant shall pay to Landlord each month, at the same time the
Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the
estimated Additional Rent for such year. Within a reasonable time after the end
of each calendar year, Landlord shall submit to Tenant a statement of the actual
amount of such Additional Rent and within thirty (30) days after receipt of such
statement, Tenant shall pay any deficiency between the actual amount owed and
the estimates paid during such calendar year. In the event of overpayment,
Landlord shall credit the amount of such overpayment toward the next
installments of Minimum Rent.
SECTION 3.04. LATE CHARGES. Tenant acknowledges that Landlord shall
incur certain additional unanticipated administrative and legal costs and
expenses if Tenant fails to timely pay any payment required hereunder.
Therefore, in addition to the other remedies available to Landlord hereunder, if
any payment required to be paid by Tenant to Landlord hereunder shall become
overdue, such unpaid amount shall bear interest from the due DATE THEREOF TO THE
DATE OF PAYMENT AT THE PRIME RATE (AS REPORTED IN THE WALL STREET JOURNAL of
interest ("Prime Rate") plus six percent (6%) per annum.
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ARTICLE 4 - SECURITY DEPOSIT
Tenant, upon execution of this Lease, shall, at its sole election
either (i) deposit with Landlord cash in the amount set forth in Item H of the
Basic Lease Provisions, or (ii) provide an irrevocable letter of credit ("LOC")
in the form attached hereto as Exhibit H and issued by a bank reasonably
acceptable to Landlord in the amount set forth in Item H of the Basic Lease
Provisions as security for the performance by Tenant of all of Tenant's
obligations contained in this Lease. Subparts (i) and (ii) shall be separately
and collectively referred to as the "Security Deposit". Any LOC shall be renewed
on an annual basis and if Tenant fails to renew such LOC at least forty-five
(45) days prior to its expiration date, Landlord may draw upon the LOC and hold
the cash proceeds in lieu thereof. In the event of a Default by Tenant, Landlord
may apply or draw upon, as the case may be, all or any part of the Security
Deposit to cure all or any part of such Default; and Tenant agrees to promptly,
upon demand, deposit such additional sum with Landlord as may be required to
maintain the full amount of the Security Deposit. All sums held by Landlord
pursuant to this Article shall be without interest. At the end of the Lease
Term, provided that there is then no uncured Default, Landlord shall return the
Security Deposit to Tenant or , if applicable, return the LOC.
ARTICLE 5 - USE
SECTION 5.01. USE OF LEASED PREMISES. The Leased Premises are to be
used by Tenant solely for the Permitted Use and for no other purposes without
the prior written consent of Landlord.
SECTION 5.02. COVENANTS OF TENANT REGARDING USE. Tenant shall (i) use
and maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including
without limitation those which shall impose upon Landlord or Tenant any duty
with respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions of the Landlord, including any rules and
regulations that may be adopted by Landlord from time to time, provided such
modifications to the Rules and Regulations are not inconsistent with the
material terms of this Lease. Tenant shall not do or permit anything to be done
in or about the Leased Premises or common areas which constitutes a nuisance or
which interferes with the rights of other tenants or injures them. Landlord
shall not be responsible to Tenant for the nonperformance by any other tenant or
occupant of the Building of its lease or of any rules and regulations. Tenant
shall not overload the floors of the Leased Premises. All damage to the floor
structure or foundation of the Building due to improper positioning or storage
of items or materials shall be repaired by Landlord at the sole expense of
Tenant, who shall reimburse Landlord immediately therefor upon demand. Tenant
shall not use the Leased Premises, or allow the Leased Premises to be used, for
any purpose or in any manner which would invalidate any policy of insurance now
or hereafter carried on the Building or increase the rate of premiums payable on
any such insurance policy unless Tenant reimburses Landlord as Additional Rent
for any increase in premiums charged.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE. In addition to the
rights specified elsewhere in this Lease, Landlord shall have the following
rights regarding the use of the Leased Premises or the common areas, each of
which may be exercised without notice or liability to Tenant, (a) Landlord may
install such signs, advertisements, notices or tenant identification information
as it shall deem necessary or proper; provided, however, that any such signage
specifically identifying Tenant or Tenant's business operation within the
Building or Park shall be subject to Tenant's reasonable approval, (b) Landlord
shall have the right at any time to control, change or otherwise alter the
common areas as it shall deem necessary or proper; and (c) Landlord or
Landlord's agent shall be permitted to inspect or examine the Leased Premises at
any reasonable time upon reasonable notice (except in an emergency when no
notice shall be required), and Landlord shall have the right to make any repairs
to the Leased Premises which are necessary for its preservation; provided,
however, that any repairs made by Landlord shall be at TENANT'S EXPENSE, EXCEPT
AS PROVIDED IN SECTION 7.02 hereof. Landlord shall incur no liability to Tenant
for such entry, nor shall such entry constitute an eviction of Tenant or a
termination of this Lease, or entitle Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises.
However, if any services or utilities are jointly metered with other property,
Landlord shall make a reasonable determination of Tenant's proportionate share
of the cost of such utilities and services (at rates that would have been
payable if such utilities and services had been directly billed by the utilities
or services providers) and Tenant shall pay such share to Landlord within
fifteen (15) days after receipt of Landlord's written statement. Landlord shall
not be liable in damages or otherwise for any failure or interruption of any
utility or other Building service and no such failure or interruption shall
entitle Tenant to terminate this Lease or withhold sums due hereunder. In the
event of utility "deregulation", Landlord shall choose the service provider.
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ARTICLE 7 - MAINTENANCE AND REPAIRS
SECTION 7.01. TENANT'S RESPONSIBILITY. During Lease Term, Tenant shall,
at its own cost and expense, maintain the Leased Premises in good condition,
regularly servicing and promptly making all repairs and replacements thereto,
including but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors, sprinkler and
plumbing systems, and shall obtain a preventive maintenance contract on the
heating, ventilating and air-conditioning systems, and provide Landlord with a
copy thereof. The preventive maintenance contract shall meet or exceed
Landlord's standard maintenance criteria, and shall provide for the inspection
and maintenance of the heating, ventilating and air conditioning system on not
less than a semi-annual basis. Notwithstanding the foregoing, and provided
Tenant maintains a preventative maintenance contract approved by Landlord and
subject to the acts and omissions of Tenant, Landlord warrants the electrical
systems, heating and air conditioning systems, and sprinkler and plumbing
systems for the first year of the Lease Term.
SECTION 7.02. LANDLORD'S RESPONSIBILITY. During the term of this Lease,
Landlord shall maintain in good condition and repair, and replace as necessary,
the roof, exterior walls, foundation and structural frame of the Building and
the parking and landscaped areas, the costs of which shall be included in
Operating Expenses; provided, however, that to the extent any of the foregoing
items require repair because of the negligence, misuse, or default of Tenant,
its employees, agents, customers or invitees, Landlord shall make such repairs
solely at Tenant's expense.
SECTION 7.03. ALTERATIONS. TENANT SHALL NOT PERMIT ALTERATIONS
(EXCLUDING THE INITIAL TENANT FINISH IMPROVEMENTS DESCRIBED IN EXHIBIT B) in or
to the Leased Premises unless and until the plans have been APPROVED BY LANDLORD
IN WRITING. AS A CONDITION OF SUCH APPROVAL, LANDLORD MAY REQUIRE TENANT TO
REMOVE THE ALTERATIONS (EXCLUDING THE INITIAL TENANT FINISH IMPROVEMENTS
DESCRIBED IN EXHIBIT B) and restore the Leased Premises upon termination of this
Lease; otherwise, all such alterations shall at Landlord's option become a part
of the realty and the property of Landlord, and shall not be removed by Tenant.
Tenant shall ensure that all alterations (excluding THE INITIAL TENANT FINISH
IMPROVEMENTS DESCRIBED IN EXHIBIT B) shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Building. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute a consent by Landlord to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record within thirty
(30) days after filing. Tenant shall indemnify Landlord from all costs, losses,
expenses and attorneys' fees in connection with any construction or alteration
and any related lien.
ARTICLE 8 - CASUALTY
SECTION 8.01. CASUALTY. In the event of total or partial destruction of
the Building or the Leased Premises by fire or other casualty, Landlord agrees
to promptly restore and repair the Building Leased Premises and Common Areas;
provided, however, Landlord's obligation hereunder shall be limited to the
reconstruction of such of the Building, and Common Areas as were originally
required to be made by Landlord, and with respect to TENANT'S TENANT FINISH
IMPROVEMENTS ONLY THOSE, DESCRIBED ON EXHIBIT B. Rent shall proportionately
xxxxx during the time that the Leased Premises or part thereof are unusable
because of any such damage. Notwithstanding the foregoing, if the Leased
Premises are (i) so destroyed that they cannot be repaired or rebuilt within one
hundred eighty (180) days from the casualty date ; or (ii) destroyed by a
casualty which is not covered by the insurance required hereunder or, if
covered, such insurance proceeds are not released by any mortgagee entitled
thereto or are insufficient to rebuild the Building and the Leased Premises;
then, in case of a clause (i) casualty, either Landlord or Tenant may, or, in
the case of a clause (ii) casualty, then Landlord may, upon thirty (30) days'
written notice to the other party, terminate this Lease with respect to matters
thereafter accruing. Notwithstanding the foregoing and subject to the
availability of space, Landlord agrees to exercise commercially reasonable
efforts, in the event of a total or partial destruction of the Building as
described above, to provide Tenant with temporary space until the Leased
Premises are reconstructed. Such temporary space shall be provided to Tenant
based upon mutually agreed upon terms and conditions.
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SECTION 8.02. ALL RISK COVERAGE INSURANCE. During the Lease Term,
Landlord shall maintain all risk coverage insurance on the Building, but shall
not protect Tenant's property on the Leased Premises; and, NOTWITHSTANDING THE
PROVISIONS OF SECTION 9.01, Landlord shall not be liable for any damage to
Tenant's property, regardless of cause, including the negligence of Landlord and
its employees, agents and invitees. Tenant hereby expressly waives any right of
recovery against Landlord for damage to any property of Tenant located in or
about the Leased Premises, however caused, including the negligence of Landlord
and its employees, agents and invitees. NOTWITHSTANDING THE PROVISIONS OF
SECTION 9.01 below, Landlord hereby expressly waives any rights of recovery
against Tenant for damage to the Leased Premises or the Building which is
insured against under Landlord's all risk coverage insurance. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
SECTION 9.01. TENANT'S RESPONSIBILITY. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the common
areas, or (ii) the occurrence of any accident in or about the Leased Premises or
the common areas, or (iii) any act or neglect of Tenant or any other tenant or
occupant of the Building or of any other person, unless such damage, injury or
death is directly and solely the result of Landlord's negligence; and Tenant
hereby releases Landlord from any and all liability for the same. Tenant shall
be liable for, and shall indemnify and defend Landlord from, any and all
liability for (i) any act or neglect of Tenant and any person coming on the
Leased Premises or common areas by the license of Tenant, express or implied,
(ii) any damage to the Leased Premises, and (iii) any loss of or damage or
injury to any person (including death resulting therefrom) or property occurring
in, on or about the Leased Premises, regardless of cause, except for any loss or
damage from fire or casualty insured as PROVIDED IN SECTION 8.02 and except for
that caused solely and directly by Landlord's negligence. This provision shall
survive the expiration or earlier termination of this Lease.
SECTION 9.02. TENANT'S INSURANCE. Tenant shall carry general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than $3,000,000
Combined Single Limit for both bodily injury and property damage.
C. All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler Leakage
insurance, if applicable, for the full cost of replacement of Tenant's
property.
D. Business interruption insurance.
The insurance policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee as additional insureds, and shall provide that they may not be
canceled on less than thirty (30) days' prior written notice to Landlord. Tenant
shall furnish Landlord with Certificates of Insurance evidencing all required
coverages on or before the Commencement Date. If Tenant fails to carry such
insurance and furnish Landlord with such Certificates of Insurance after a
request to do so, Landlord may obtain such insurance and collect the cost
thereof from Tenant.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or common areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date that actual possession
thereof is so taken. If all or any part of the Leased Premises shall be acquired
by the exercise of eminent domain so that the Leased Premises shall become
unusable by Tenant for the Permitted Use, Tenant may terminate this Lease as of
the date that actual possession thereof is taken by giving written notice to
Landlord. All damages awarded shall belong to Landlord; provided, however, that
Tenant may claim dislocation damages if such amount is not subtracted from
Landlord's award.
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ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent, which consent shall
not be unreasonably withheld, delayed or denied (provided that it shall not be
unreasonable for Landlord to withhold or deny its consent with respect to any
proposed assignment or subletting to a third party that is already a tenant in
the Building or the Park). In the event of any assignment or subletting, Tenant
shall remain primarily liable hereunder, and any extension, expansion, rights of
first offer, rights of first refusal or other options granted to Tenant under
this Lease shall be rendered void and of no further force or effect unless
otherwise expressly extended to an assignee by the terms hereunder. The
acceptance of rent from any other person shall not be deemed to be a waiver of
any of the provisions of this Lease or to be a consent to the assignment of this
Lease or the subletting of the Leased Premises. Without in any way limiting
Landlord's right to refuse to consent to any assignment or subletting of this
Lease, Landlord reserves the right to refuse to give such consent if in
Landlord's opinion (i) the Building or the Leased Premises are or may be in any
way adversely affected; (ii) the business reputation of the proposed assignee or
subtenant is unacceptable; or (iii) the financial worth of the proposed assignee
or subtenant is insufficient to meet the obligations hereunder. Landlord further
expressly reserves the right to refuse to give its consent to any subletting if
the proposed rent is to be less than the then current rent for similar premises
in the Park. Tenant agrees to reimburse Landlord for reasonable accounting and
attorneys' fees incurred in conjunction with the processing and documentation of
any such requested assignment, subletting or any other hypothecation of this
Lease or Tenant's interest in and to the Leased Premises.
Notwithstanding the foregoing, Tenant may assign the Lease or sublease
all or any portion of the Leased Premises without Landlord's consent to any of
the following (a "Permitted Transferee"), provided that the Permitted
Transferee's financial condition, creditworthiness and business reputation
following the transfer are equal to or exceed those of Tenant: (i) any successor
corporation or other entity resulting from a merger or consolidation of Tenant;
(ii) any purchaser of all or substantially all of Tenant's assets; or (iii) any
entity which controls, is controlled by, or is under common control with Tenant.
Tenant shall give Landlord thirty (30) days prior written notice of such
assignment or sublease. Any Permitted Transferee shall assume in writing all of
Tenant's obligations under this Lease. Tenant shall nevertheless at all times
remain fully responsible and liable for the payment of rent and the performance
and observance of all of Tenant's other obligations under this Lease. Nothing in
this paragraph is intended to nor shall permit Tenant to transfer its interest
under this Lease as part of a fraud or subterfuge to intentionally avoid its
obligations under this Lease (for example, transferring its interest to a shell
corporation that subsequently files a bankruptcy), and any such transfer shall
constitute a Default hereunder.
ARTICLE 12 - TRANSFERS BY LANDLORD
SECTION 12.01. SALE OF THE BUILDING. Landlord shall have the right to
sell the Building at any time during the Lease Term, subject only to the rights
of Tenant hereunder; and such sale shall operate to release Landlord from
liability hereunder after the date of such conveyance.
SECTION 12.02. SUBORDINATION AND ESTOPPEL CERTIFICATE. Landlord shall
have the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage. Within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost, any instrument which Landlord
deems necessary or desirable to confirm the subordination of this Lease and an
estoppel certificate in such form as Landlord may reasonably request certifying
(i) that this Lease is in full force and effect and unmodified or stating the
nature of any modification, (ii) the date to which rent has been paid, (iii)
that there are not, to Tenant's knowledge, any uncured defaults or specifying
such defaults if any are claimed, and (iv) any other matters or state of facts
reasonably required respecting the Lease. Such estoppel may be relied upon by
Landlord and by any purchaser or mortgagee of the Building. Notwithstanding the
foregoing, if the mortgagee shall take title to the Leased Premises through
foreclosure or deed in lieu of foreclosure, Tenant shall be allowed to continue
in possession of the Leased Premises as provided for in this Lease so long as
Tenant shall not be in default.
ARTICLE 13 - DEFAULT AND REMEDY
SECTION 13.01. DEFAULT. The occurrence of any of the following shall be
a "Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional
Rent within five (5) days after the same is due, or Tenant fails to pay any
other amounts due Landlord from Tenant within ten (10) days after
the same is due.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after written notice thereof from Landlord; provided, however,
that if the nature of Tenant's default is such that more than thirty days are
reasonably required to cure, then such default shall be deemed to have been
cured if Tenant commences such performance within said thirty-day period and
thereafter diligently completes the required action within a reasonable time.
7
(c) Tenant shall assign or sublet all or a portion of the Leased
Premises in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises
or Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
(e) In addition to the defaults and remedies described herein, the
parties agree that if Tenant is in violation of the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such violations are
ultimately cured, then such conduct shall, at Landlord's option, represent a
separate Default.
SECTION 13.02. REMEDIES. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Landlord may apply the Security Deposit and/or re-enter the Leased
Premises and cure any Default of Tenant, and Tenant shall reimburse Landlord as
Additional Rent for any reasonable costs and expenses which Landlord thereby
incurs; and Landlord shall not be liable to Tenant for any loss or damage which
Tenant may sustain by reason of Landlord's action.
(b) Landlord may terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Leased Premises as of the
date of such Default, and thereafter (i) neither Tenant nor any person claiming
under or through Tenant shall be entitled to possession of the Leased Premises,
and Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (discounted at
the Prime Rate) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, reduced by the
reasonable fair market value rental of the Leased Premises for such balance of
the Lease Term (determined from the present value of the actual minimum or base
rents received and to be received from Landlord's reletting of the Leased
Premises), whereupon Tenant shall be obligated to pay the same to Landlord,
together with all loss or damage which Landlord may sustain by reason of
Tenant's default ("Default Damages"), which shall include without limitation
expenses of preparing the Leased Premises for re-letting, demolition, repairs,
tenant finish improvements, brokers' commissions and reasonable attorneys' fees,
it being expressly understood and agreed that the liabilities and remedies
specified in this subsection (b) shall survive the termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
present value (discounted at the Prime Rate) of the difference between the rent
provided for herein and that provided for in any lease covering a subsequent
re-letting of the Leased Premises, for the period which would otherwise have
constituted the balance of the Lease Term, together with all of Landlord's
Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for
any loss resulting from the Default.
SECTION 13.03. LANDLORD'S DEFAULT AND TENANT'S REMEDIES. Landlord shall
be in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may xxx for injunctive relief or to
recover damages for any loss directly resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or withhold, offset or xxxxx any
sums due hereunder.
8
SECTION 13.04. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall
fail to perform any term, condition, covenant or obligation required to be
performed by it under this Lease and if Tenant shall, as a consequence thereof,
recover a money judgment against Landlord, Tenant agrees that it shall look
solely to Landlord's right, title and interest in and to the Building for the
collection of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment.
SECTION 13.05. NONWAIVER OF DEFAULTS. Neither party's failure or delay
in exercising any of its rights or remedies or other provisions of this Lease
shall constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
SECTION 13.06. ATTORNEYS' FEES. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees incurred in
connection therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
[INTENTIONALLY OMITTED]
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
SECTION 15.01. DEFINITIONS.
(a) "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws.
SECTION 15.02. COMPLIANCE. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to Tenant's use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant.
SECTION 15.03. RESTRICTIONS ON TENANT. Tenant shall operate its
business and maintain the Leased Premises in compliance with all Environmental
Laws. Tenant shall not cause or permit the use, generation, release,
manufacture, refining, production, processing, storage or disposal of any
Hazardous Substances on, under or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substances,
except as necessary and appropriate for its Permitted Use in which case the use,
storage or disposal of such Hazardous Substances shall be performed in
compliance with the Environmental Laws and the highest standards prevailing in
the industry.
SECTION 15.04. NOTICES, AFFIDAVITS, ETC. Tenant shall immediately
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of the Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises and
shall immediately deliver to Landlord any notice received by Tenant relating to
(i) and (ii) above from any source. Tenant shall execute affidavits,
representations and the like within five (5) days of Landlord's request therefor
concerning Tenant's best knowledge and belief regarding the presence of any
Hazardous Substances on, under or about the Leased Premises.
SECTION 15.05. LANDLORD'S RIGHTS. Landlord and its agents shall have
the right, but not the duty, upon advance notice (except in the case of
emergency when no notice shall be required) to inspect the Leased Premises and
9
conduct tests thereon to determine whether or the extent to which there has been
a violation of Environmental Laws by Tenant or whether there are Hazardous
Substances on, under or about the Leased Premises. In exercising its rights
herein, Landlord shall use reasonable efforts to minimize interference with
Tenant's business but such entry shall not constitute an eviction of Tenant, in
whole or in part, and Landlord shall not be liable for any interference, loss,
or damage to Tenant's property or business caused thereby.
SECTION 15.06. TENANT'S INDEMNIFICATION. Tenant shall indemnify
Landlord and Landlord's managing agent from any and all claims, losses,
liabilities, costs, expenses and damages, including attorneys' fees, costs of
testing and remediation costs, incurred by Landlord in connection with any
breach by Tenant of its obligations under this Article 15. The covenants and
obligations under this Article 15 shall survive the expiration or earlier
termination of this Lease.
SECTION 15.07. LANDLORD'S REPRESENTATION. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or
generated, at, in, on, under or in connection with the Leased Premises prior to
the Commencement Date of this Lease except to the extent Tenant exacerbates the
same.
ARTICLE 16 - MISCELLANEOUS
SECTION 16.01. BENEFIT OF LANDLORD AND TENANT. This Lease shall inure
to the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
SECTION 16.02. GOVERNING LAW. This Lease shall be governed in
accordance with the laws of the State of where the Building is located.
SECTION 16.03. GUARANTY. In consideration of Landlord's leasing the
Leased Premises to Tenant, Tenant shall provide Landlord with a Guaranty of
Lease executed by the guarantor(s) described in the Basic Lease PROVISIONS,
ATTACHED HERETO AS EXHIBIT G. Notwithstanding the foregoing, Landlord agrees to
release the Guaranty and Guarantor from its obligations therein in the event the
following conditions are satisfied: (i) at any time during the Lease Term Tenant
achieves a tangible net worth of Thirty Million Dollars ($30,000,000.00) or more
and maintains such a tangible net worth for a consecutive twelve (12) month
period; or (ii) at any time during the Lease Term Tenant achieves net earned
income of Five Million Dollars ($5,000,000.00) or more and maintains such net
earned income for a consecutive twelve (12) month period; as Landlord reasonably
determines subparts (i) and (ii) based upon relevant financial and business
documentation submitted by Tenant; and (iii) there remain no uncured Defaults at
the time of terminating the Guaranty. As of the date of Landlord's reasonable
determination that the foregoing conditions have been satisfied, the Guaranty
shall be terminated and of no further force or effect and the Guarantor shall
have no further liability thereunder, excluding, however, the obligations of
Guarantor attributable to any period of time prior to termination of the
Guaranty.
SECTION 16.04. FORCE MAJEURE. Landlord and Tenant (except with respect
to the payment of any monetary obligation) shall be excused for the period of
any delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
SECTION 16.05. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
SECTION 16.06. INDEMNIFICATION FOR LEASING COMMISSIONS. The parties
hereby represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers. Landlord agrees to pay
a commission to the Brokers pursuant to the terms of a separate written
agreement between Landlord and the Brokers. Each party shall indemnify the other
from any and all liability for the breach of this representation and warranty on
its part and shall pay any compensation to any other broker or person who may be
entitled thereto.
SECTION 16.07. NOTICES. Any notice required or permitted to be given
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to the party who is to receive such notice at the address
specified in Article 1. If delivered in person, notice shall be deemed given as
of the delivery date. If sent by overnight courier, notice shall be deemed given
as of the first business day after sending. If mailed, the notice shall be
deemed to have been given on the date which is three (3) business days after
mailing. Either party may change its address by giving written notice thereof to
the other party.
10
SECTION 16.08. PARTIAL INVALIDITY; COMPLETE AGREEMENT. If any provision
of this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect.. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
SECTION 16.09. FINANCIAL STATEMENTS. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
one hundred twenty (120) days following the end of Tenant's fiscal year, a copy
of Tenant's most recent financial statements prepared as of the end of Tenant's
fiscal year. Such financial statements shall be certified and signed by Tenant
who shall attest to the truth and accuracy of the information set forth in such
statements. All financial statements provided by Tenant to Landlord hereunder
shall be prepared in conformity with generally accepted accounting principles,
consistently applied.
SECTION 16.10. REPRESENTATIONS AND WARRANTIES. The undersigned
represent and warrant that (i) such party is duly organized, validly existing
and in good standing (if applicable) in accordance with the laws of the state
under which it was organized; and (ii) the individual executing and delivering
this Lease has been properly authorized to do so, and such execution and
delivery shall bind such party.
SECTION 16.11. AGENCY DISCLOSURE. Tenant acknowledges having reviewed
the Agency Disclosure Statement and Tenant acknowledges that said Statement is
signed and attached hereto and made a part hereof as EXHIBIT C. The broker
identified as representing Landlord in Item J of Section 1.01 hereof, and its
agents and employees, have represented only Landlord, and have not in any way
represented Tenant, in the marketing, negotiation and completion of this lease
transaction.
SECTION 16.12. OPTION TO EXTEND.
(A) GRANT AND EXERCISE OF OPTION. Provided that (i) Tenant has not been
in Default beyond any applicable cure periods at any time during the Lease Term,
(ii) the creditworthiness of Tenant is materially the same as or better than on
the Commencement Date, (iii) Tenant named herein or Permitted Transferee (as
defined herein) remains in possession of and has been continuously operating in
substantially the entire Leased Premises throughout the Lease Term and (iv) the
current use of the Leased Premises is consistent with the Permitted Use
hereunder, Tenant shall have one (1) option to extend the Lease Term for one (1)
additional period of five (5) years (the "Extension Term"). The Extension Term
shall be upon the same terms and conditions contained in the Lease for the Lease
Term except (i) the term of the Lease shall be five (5) years; and (ii) Tenant
shall not have any further option to extend and (iii) the Minimum Annual Rent
shall be adjusted as set forth herein ("Rent Adjustment"). Tenant shall exercise
such option by delivering to Landlord, no later than six (6) months prior to the
expiration of the Lease Term, written notice of Tenant's desire to extend the
Lease Term. Tenant's failure to properly exercise such option shall waive it. If
Tenant properly exercises its option to extend, Landlord shall notify Tenant of
the Rent Adjustment no later than ninety (90) days prior to the commencement of
the Extension Term. Tenant shall be deemed to have accepted the Rent Adjustment
if it fails to deliver to Landlord a written objection thereto within five (5)
business days after receipt thereof. If Tenant properly exercises its option to
extend, Landlord and Tenant shall execute an amendment to the Lease (or, at
Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term, within thirty (30)
days after Tenant's acceptance of the Rent Adjustment.
(B) MARKET RENT ADJUSTMENT. The Minimum Annual Rent for the Extension
Term shall be an amount equal to ninety percent (90%) of the Minimum Annual Rent
then being quoted by Landlord to prospective new tenants of the Building for
space of comparable size and quality and with similar or equivalent improvements
as are found in the Building, and if none, then in similar buildings in the
vicinity, excluding free rent and other concessions; provided, however, that in
no event shall the Minimum Annual Rent during the Extension Term be less than
Five Dollars and Eighty Three Cents ($5.83) per rentable square foot of the
Leased Premises. The Minimum Monthly Rent shall be an amount equal to
one-twelfth (1/12) of the Minimum Annual Rent for the Extension Term and shall
be paid at the same time and in the same manner as provided in the Lease.
SECTION 16.13. RIGHT OF FIRST OFFER. Provided that (i) Tenant has not
been in Default beyond any applicable cure periods at any time during the Lease
Term, (ii) the creditworthiness of Tenant is materially the same as or better
than on the Commencement Date, (iii) Tenant named herein or a Permitted
Transferee (as defined herein) remains in possession of and has been
continuously operating in substantially the entire Leased Premises throughout
the Lease Term and (iv) the current use of the Leased Premises is consistent
with the Permitted Use hereunder, and subject to any rights of other tenants to
the Offer Space, Landlord shall notify Tenant in writing ("Landlord's Notice")
11
before entering into a lease with a third party of the availability of rentable
space within the Building as such space becomes available for leasing during the
Lease Term (the "Offer Space"). Tenant shall have ten (10) business days from
its receipt of Landlord's Notice to deliver to Landlord a written acceptance
agreeing to lease the Offer Space on the terms and conditions contained in
Landlord's Notice. In the event Tenant fails to notify Landlord of its
acceptance within said ten (10) day period, such failure shall be conclusively
deemed a waiver of Tenant's Right of First Offer and a rejection of the Offer
Space, whereupon Tenant shall have no further rights with respect to the Offer
Space and Landlord shall be free to lease the Offer Space to a third party. In
the event Tenant accepts the Offer Space on the terms and conditions specified
in the Landlord's Notice, the term for the Offer Space shall be coterminous with
the term for the original Leased Premises; provided, however, that the minimum
term for the Offer Space shall be sixty (60) months and the Term for the
original Leased Premises shall be extended, to be coterminous with the term for
the Offer Space. The Minimum Annual Rent for the Offer Space shall be equal to
the rate which is then being quoted by Landlord to prospective new tenants for
the Offer Space, excluding free rent and other concessions, provided, however,
that in no event shall Tenant's Minimum Annual Rent per square foot for the
Offer Space be less than the highest Minimum Annual Rent per square foot payable
during the original Lease Term for the original Leased Premises. The Minimum
Annual Rent for the original Leased Premises during any part of the extended
term beyond the original Lease Term shall be an amount equal to Ninety Percent
(90%) of the Minimum Annual Rent then being quoted by Landlord to prospective
new tenants of the Building for space of comparable size and quality and with
similar or equivalent improvements as are found in the Building, and if none,
then in similar buildings in the vicinity, excluding free rent and other
concessions, provided, however, that in no event shall the Minimum Annual Rent
during any such extended term be less than Five Dollars and Eighty-Three Cents
($5.83) per rentable square foot of the original Leased Premises.
It is understood and agreed that Tenant's Right of First Offer is an
ongoing and continuing right. To this end and in the event Tenant declines or
fails to elect to lease the Offer Space, then Tenant's rights with respect to
the offered portion of the Offer Space shall automatically terminate and
thereafter be null and void as to such space; provided, however, that in the
event such space subsequently becomes available for leasing, Landlord shall
again offer such space to Tenant in accordance with the terms hereof, except
that Tenant shall be provided only a five (5) day period to respond to
Landlord's Notice. It is further understood and agreed that this Right of First
Offer shall not be construed to prevent any tenant in the Building from
extending or renewing its lease.
SECTION 16.14. OPTION TO EXPAND. WITHIN THE BUILDING - FIRST GENERATION
SPACE. At any time within the twelve (12) months following the date of execution
hereof and subject to the availability of space, Tenant or a Permitted
Transferee shall have the option to expand the Leased Premises ("Expansion
Option"), to occupy space consisting of a minimum of an additional 12,800
rentable square feet of any previously unleased, first generation space in the
Building (the "Expansion Space"). In the event Tenant elects to exercise its
Expansion Option, Landlord and Tenant hereby agree that (i) Tenant shall provide
Landlord with one hundred twenty (120) days prior written notice of its desire
to expand; and (ii) if said Expansion Space is available for lease to Tenant,
the term for the Expansion Space shall be coterminous with the term for the
original Leased Premises, and the Minimum Rent for the Expansion Space shall be
equal to and amount of Four Dollars and Forty Five Cents ($4.45) per rentable
square foot of the Expansion Space. Landlord shall provide Tenant with a tenant
finish improvement allowance equal to Six Dollars ($6.00) per rentable square
foot of the Expansion Space ("Landlord's Expansion Allowance"). Landlord's
Expansion Allowance shall be applied solely toward the cost of constructing and
completing the tenant finish improvements within the Expansion Space for
Tenant's use and occupancy of the Expansion Space. The cost of any tenant finish
improvements within the Expansion Space which exceed the amount of Landlord's
Expansion Allowance shall be paid in full by Tenant to Landlord within thirty
(30) days of Tenant's receipt of an invoice therefor. If Tenant properly
exercises its Option to Expand, Landlord and Tenant shall execute an amendment
to the Lease reflecting the above-described terms for the Expansion Option,
within thirty (30) days after Tenant's receipt of Landlord's Notice advising
that the Expansion Space is available. In the event Landlord notifies Tenant
that the Expansion Space is not available for lease to Tenant, this Expansion
Option shall remain in effect with respect to any space becoming available at
any time during the Lease Term.
SECTION 16.15. EARLY OCCUPANCY. Landlord shall permit Tenant to take
possession of the Leased Premises forty five (45) days prior to the Commencement
Date for the purpose of installing Tenant's racking in the Leased Premises and
Landlord shall permit Tenant to take occupancy of the Leased Premises for
purposes of occupancy the Leased Premises ; provided, however, that all terms
and conditions of this Lease shall become effective upon Tenant taking
possession and occupancy of the Leased Premises, except for payment of Minimum
Annual Rent and Annual Rental Adjustment which will commence on the Commencement
Date.
SECTION 16.16. PARKING. During the Lease Term and any extensions
thereof and provided Tenant is not in Default hereunder, Tenant shall have the
non-exclusive use of a total 170 parking space consisting of 95 parking spaces
in the parking area located in the front of the Building and 76 parking spaces
located in the parking area located behind the Building. Only one vehicle shall
be parking in each space at one time. In addition, Tenant agrees that its
employees and agents will not park in spaces designated "visitor parking".
12
SECTION 16.17. CONTINGENCY. Landlord and Tenant hereby acknowledge and
agree that this Lease shall be and is contingent for a period of forty-five (45)
days following the execution date of this Agreement upon Tenant successfully
securing tax abatement on the real property from the City of Columbus. If such
contingency is not satisfied within said forty-five (45) day period, Tenant may
terminate this Lease at its election, by providing Landlord with written notice
on or before the expiration of said forty-five (45) day period verifying that
(i) such contingency has not been satisfied; (ii) Tenant desires to terminate
this Lease; and (iii) tendering to Landlord the reimbursement and liquidated
damages payments described below. In the event Tenant elects to terminate this
Lease as provided above, Tenant shall indemnify and hold harmless Landlord from
and against all obligations, liabilities, costs and expenses incurred by
Landlord through the date of Tenant's termination including, but not limited to
, all design engineering, pre-construction and construction costs and
construction management fees associated with the tenant finish improvements
contemplated in this Lease. In addition, Landlord and Tenant acknowledge and
agree that Landlord will suffer other damages and expenses not readily or easily
ascertainable in the event Tenant terminates this Lease as provided above and as
a condition precedent to Tenant's termination of the Lease, Tenant shall pay
Landlord the sum of Five Hundred Thousand Dollars ($500,000.00) as liquidated
damages for such other costs and expenses to be suffered by Landlord. In the
event Tenant fails to provide Landlord with such written notice within said
forty-five (45) day period, the contingency defined herein shall have no further
force or effect, and Tenant shall have no further right to terminate this Lease,
and that remainder of this Lease shall be deemed in full force and effect.
SECTION 16.18. TERMINATION OF INDEMNIFICATION AGREEMENT. Landlord and
Tenant hereby acknowledge and agree that the Indemnification Agreement
previously executed by Tenant and Guarantor shall be terminated and of no
further force or effect upon the full execution of this Lease and that any
obligation of Tenant to indemnify Landlord for such design engineering,
pre-construction, or construction costs shall be governed by the terms of this
Lease.
13
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
WITNESS 1: LANDLORD:
/S/ XXXXX X. XXXXXX DUKE-WEEKS REALTY LIMITED
------------------- PARTNERSHIP, an Indiana limited partnership
(Signature)
XXXXX X. XXXXXX By: Duke-Weeks Realty Corporation,
---------------- its general partner
(Printed)
WITNESS 2:
BY: /S/ J. XXXX XXXXXX
------------------------
/S/ XXXXXX XXXXXXXXX J. Xxxx Xxxxxx
-------------------- Senior Vice President
(Signature) Columbus Industrial
XXXXXX XXXXXXXXX
----------------
(Printed)
WITNESS 1: TENANT:
/S/ XXXXXX X. XXXXX CONTINENTAL MANAGED PHARMACY
------------------- SERVICES, INC., an Ohio corporation
(Signature)
XXXXXX X. XXXXX BY: /S/ XXX X. XXXXXX
---------------- -------------------------------------
(Printed)
PRINTED: XXX X. XXXXXX
----------------------------------
WITNESS 2:
/S/ XXXXX XXXXXX TITLE: SENIOR VICE PRESIDENT, MARKETING
--------------------------- AND FULFILLMENT
(Signature)
XXXXX XXXXXX
------------
(Printed)
14
