EXHIBIT 10.7
11/17/03
11/18/03
12/16/03
12/17/03
01/19/04
01/20/04
OFFICE/WAREHOUSE LEASE
THIS INDENTURE of lease, dated this 30th day of January, 2004, by and
between OPUS NORTHWEST, L.L.C., a Delaware limited liability company, owner of
the Office/Warehouse Complex (as hereinafter defined), hereinafter referred to
as "Lessor," and CHIEF MANUFACTURING, INC., a Minnesota corporation, hereinafter
referred to as "Lessee."
WITNESSETH:
That Lessor, in consideration of the rents and covenants hereinafter set
forth, does hereby lease and let unto Lessee, and Lessee does hereby hire and
take from Lessor, that certain space shown and designated on the floor plan
attached hereto and made a part hereof as Exhibit A, located in the
Office/Warehouse Complex known and described as Eagle Creek Commerce Center West
located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxx 00000. The area upon
which rental is calculated includes all areas within the outside edge of outside
walls and to the center of demising walls (or to demising lines if no demising
wall exists) common with other tenants or with vacant space and Lessee's
proportionate share of the common electrical and mechanical rooms in the
Office/Warehouse Complex. The aforesaid space leased and let unto Lessee is
hereinafter referred to as the "Premises"; and the land (including all easement
areas appurtenant thereto) upon which the building or buildings of which the
Premises are a part is hereinafter referred to as the "Property"; and the
Property and all buildings and improvements and personal property of Lessor used
in connection with the operation or maintenance thereof located therein and
thereon and the appurtenant parking facilities, if any, are hereinafter called
the "Office/Warehouse Complex."
TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or obligation
on the part of Lessor to make any alterations, improvements or repairs of any
kind on or about the Premises, except as expressly provided herein, for a term
of five (5) years, zero (0) months, commencing on the 1st day of May, 2004 and
ending on the 30th day of April, 2009, unless sooner terminated, in the manner
provided hereinafter, to be occupied and used by Lessee for office/warehouse
purposes and for no other purpose, subject to the covenants and agreements
hereinafter contained.
ARTICLE I. BASE RENT: In consideration of the leasing aforesaid, Lessee agrees
to pay to Lessor, at 00000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, or at
such other place as Lessor from time to time may designate in writing, an annual
rental of Six Hundred Fifteen Thousand Five Hundred Thirty-Seven and 00/100
Dollars ($615,537.00), sometimes hereinafter referred to as the "Base Rent,"
payable monthly, in advance, in equal installments of Fifty-One
Thousand Two Hundred Ninety-Four and 75/100 Dollars ($51,294.75), commencing on
the first day of the term and continuing on the first day of each and every
month thereafter for the next succeeding months during the balance of the term.
If the term commences on a date other than the first day of a calendar month or
ends on a date other than the last day of a calendar month, monthly rent for the
first month of the term or the last month of the term, as the case may be, shall
be prorated based upon the ratio that the number of days in the term within such
month bears to the total number of days in such month.
ARTICLE II. ADDITIONAL RENT: In addition to the Base Rent payable by Lessee
under the provisions of Article I hereof, Lessee shall pay to Lessor "Additional
Rent" as hereinafter provided for in this Article II
For purposes of this Article II, the parties hereto agree upon the
following definitions:
A. The term "Lease Year" shall mean each of those calendar years commencing
with and including the year during which the term of this Lease commences,
and ending with the calendar year during which the term of this Lease
(including any extensions or renewals) terminates.
B. The term "Real Estate Taxes" shall mean and include all personal property
taxes of Lessor relating to Lessor's personal property located in the
Office/Warehouse Complex and used or useful in connection with the
operation and maintenance thereof, real estate taxes, and installments of
special assessments, including interest thereon, relating to the Property
and Office/Warehouse Complex, and all other governmental charges, general
and special, ordinary and extraordinary, foreseen as well as unforeseen, of
any kind and nature whatsoever, or other tax, however described, which is
levied or assessed by the United States of America or the state in which
the Office/Warehouse Complex is located or any political subdivision
thereof, against Lessor or all or any part of the Office/Warehouse Complex
as a result of Lessor's ownership of the Property or Office/Warehouse
Complex, and payable during the respective Lease Year. It shall not include
any net income tax, estate tax, or inheritance tax.
C. The term "Excess Real Estate Taxes" for an applicable Lease Year shall mean
the amount of Real Estate Taxes payable during such applicable Lease Year
in excess of the sum of $-0-.
D. The term "Operating Expenses" shall mean and include all expenses
reasonably incurred with respect to the maintenance and operation of the
Property and Office/Warehouse Complex as determined by Lessor's accountant
in accordance with generally accepted accounting principles consistently
followed, including, but not limited to, insurance premiums, maintenance
and repair costs, steam, electricity, water, sewer, gas, and other utility
charges, fuel, lighting, window washing, common area janitorial services,
common area trash and rubbish removal, wages payable to employees of Lessor
whose duties are connected with the operation and maintenance of the
Property and Office/Warehouse Complex (but only for the portion of their
time
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allocable to work related to the Office/Warehouse Complex), amounts paid to
contractors or subcontractors for work or services performed in connection
with the operation and maintenance of the Property and Office/Warehouse
Complex, all costs of uniforms, supplies and materials used in connection
with the operation and maintenance of the Property and Office/Warehouse
Complex, all payroll taxes, unemployment insurance costs, vacation
allowances, and the cost of providing disability insurance or benefits,
pensions, profit sharing benefits, hospitalization, retirement or other
so-called fringe benefits, and any other expense imposed on Lessor, its
contractors or subcontractors, pursuant to law or pursuant to any
collective bargaining agreement covering such employees, all services,
supplies, repairs, replacements or other expenses for maintaining and
operating the Office/Warehouse Complex, reasonable attorney's fees and
costs in connection with appeal or contest of real estate or other taxes or
levies, and such other expenses as may be ordinarily incurred in the
operation and maintenance of an office/warehouse complex and not
specifically set forth herein, including reasonable management fees, such
management fees not to exceed 4% of gross rental income. The term
"Operating Expenses" shall not include any capital improvement to the
Office/Warehouse Complex other than replacements required for normal
maintenance and repair, nor shall it include repairs, restoration or other
work occasioned by fire, windstorm or other insured casualty, expenses
incurred in leasing or procuring tenants, leasing commissions, advertising
expenses, expenses for renovating space for new tenants, legal expenses
incident to enforcement by Lessor of the terms of any lease, interest or
principal payments on any mortgage or other indebtedness of Lessor,
depreciation allowance or expense or any of the following:
(a) Cost items otherwise includable in Operating Expenses which are
reimbursed to Lessor by insurance, less the out-of-pocket costs of
collection;
(b) Bad debt loss, rent loss or reserves for bad debts or rent loss;
(c) Costs of products and services otherwise includable in Operating
Expenses but which represents an amount paid to an affiliate of Lessor
or an affiliate of any partner or shareholder or member of Lessor, to
the extent the same is in excess of the fair market value of said item
(subject to the specific provision herein related to permissible
management fee);
(d) Interest or penalties incurred as a result of Lessor's failure to pay
costs otherwise included in Operating Expenses as the same shall
become due.
(e) Costs or expenses incurred by Lessor which represent amounts spent by
Lessor in bad faith;
(f) Wages, salaries, bonuses or fringe benefits of the asset manager,
Lessor's or its management company's executives (except as may be
included in the management fee permitted above), general manager, or
other executives of Lessor
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or its management company above the grade of Property Manager in
respect to the Office/Warehouse Complex;
(g) Costs of tenant improvements for any rentable area of the
Office/Warehouse Complex.
(h) Costs related to removing or remediation of so-called hazardous
materials, other than routine disposal of contaminants such as
fluorescent tubes and ballasts.
(i) Costs of marketing and promotional expenses.
(j) Fees, costs and commissions incurred in procuring or attempting to
procure other tenants, including, but not limited to, brokers'
commissions, finders' fees, attorneys' fees, entertainment costs and
travel expenses related thereto.
(j) Any expenses for repairs or maintenance which are covered and paid by
warranties and guarantees.
Notwithstanding the foregoing, in the event Lessor installs equipment in or
makes improvements or alterations to the Office/Warehouse Complex which are
for the purpose of reducing energy costs, maintenance costs or other
Operating Expenses or which are required under any governmental laws,
regulations, or ordinances which were not required at the date of
commencement of the term of this Lease, Lessor may include in Operating
Expenses reasonable charges for interest on such investment and reasonable
charges for depreciation on the same so as to amortize such investment over
the reasonable life of such equipment, improvement or alteration on a
straight line basis. Operating Expenses shall also be deemed to include
expenses incurred by Lessor in connection with city sidewalks adjacent to
the Property and any pedestrian walkway system (either above or below
ground) or other public facility to which Lessor or the Office/Warehouse
Complex is from time to time subject in connection with operations of the
Property and Office/Warehouse Complex.
Lessor shall use reasonable effort to cause the Office/Warehouse Complex to
be operated in accordance with prudent property management standards.
E. The term "Excess Operating Expenses" shall mean the amount of Operating
Expenses for any applicable Lease Year in excess of the sum of $-0-.
F. The term "Lessee's Pro Rata Share of Excess Real Estate Taxes" shall mean
eighty-two and 03/100ths percent (82.03%) of the Excess Real Estate Taxes
payable during the applicable Lease Year, and the term "Lessee's Pro Rata
Share of Excess Operating Expenses" shall mean eighty-two and 03/100ths
percent (82.03%) of the Excess Operating Expenses for the applicable Lease
Year. Said percentages have been agreed upon by the parties hereto after
due consideration of the rentable area of the Premises compared to the
rentable area of the Office/Warehouse Complex; provided, however,
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Lessee's above percentages for Lessee's Pro Rata Share of Excess Operating
Expenses and for Lessee's Pro Rata Share of Excess Real Estate Taxes shall
be amended for each Lease Year to the percentage which the average rentable
area of the Premises bears to the total average rentable area of the
Office/Warehouse Complex for such Lease Year
G. Anything herein to the contrary notwithstanding, it is agreed that in the
event the Office/Warehouse Complex is not fully occupied during any Lease
Year, a reasonable and equitable adjustment shall be made by Lessor in
computing the management fee portion of Operating Expenses for such year so
that the management fee portion of Operating Expenses shall be adjusted to
the amount that would have been incurred had the Office/Warehouse Complex
been fully occupied during such year assuming the unoccupied area is leased
at average rent prevailing for occupied space.
As to the Lease Year during which the term of this Lease commences,
Lessor's estimated amount of Lessee's Pro Rata Share of Excess Real Estate
Taxes and Lessor's estimated amount of Lessee's Pro Rata Share of Excess
Operating Expenses (based upon the estimated number of months of the term
within such initial Lease Year) shall be the following sums:
Lessee's Pro Rata Share of Excess Real Estate Taxes $75,832.00
Lessee's Pro Rata Share of Excess Operating Expenses $44,055.00
As to each Lease Year after the initial Lease Year, Lessor shall estimate
for each such Lease Year (i) the total amount of Excess Real Estate Taxes; (ii)
the total amount of Excess Operating Expenses; (iii) Lessee's Pro Rata Share of
Excess Real Estate Taxes; (iv) Lessee's Pro Rata Share of Excess Operating
Expenses; (v) the computation of the annual and monthly rental payable during
such Lease Year as a result of increases or decreases in Lessee's Pro Rata Share
of Excess Real Estate Taxes and Lessee's Pro Rata Share of Excess Operating
Expenses. Said estimate shall be in writing and shall be delivered or mailed to
Lessee at the Premises.
Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata Share
of Excess Real Estate Taxes for each Lease Year and Lessee's Pro Rata Share of
Excess Operating Expenses for each Lease Year, so estimated, in equal monthly
installments, in advance, on the first day of each month during each applicable
Lease Year. In the event that said estimate is delivered to Lessee after the
first day of January of the applicable Lease Year, said amount, so estimated,
shall be payable as Additional Rent, in equal monthly installments, in advance,
on the first day of each month over the balance of such Lease Year, with the
number of installments being equal to the number of full calendar months
remaining in such Lease Year.
From time to time during any applicable Lease Year, Lessor may reestimate
the amount of Excess Real Estate Taxes and Excess Operating Expenses and
Lessee's Pro Rata Share thereof, and in such event Lessor shall notify Lessee,
in writing, of such reestimate in the manner above set forth and fix monthly
installments for the then remaining balance of such Lease Year in
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an amount sufficient to pay the reestimated amount over the balance of such
Lease Year after giving credit for payments made by Lessee on the previous
estimate.
Upon completion of each Lease Year, Lessor shall cause its accountants to
determine the actual amount of Excess Real Estate Taxes and Excess Operating
Expenses for such Lease Year and Lessee's Pro Rata Share thereof and deliver a
written certification of the amounts thereof to Lessee after the end of each
Lease Year. If Lessee has paid less than its Pro Rata Share of Excess Real
Estate Taxes or its Pro Rata Share of Excess Operating Expenses for any Lease
Year, Lessee shall pay the balance of its Pro Rata Share of the same within ten
(10) days after the receipt of such statement. If Lessee has paid more than its
Pro Rata Share of Excess Real Estate Taxes or its Pro Rata Share of Excess
Operating Expenses for any Lease Year, Lessor shall, at Lessee's option, either
(i) refund such excess, or (ii) credit such excess against the most current
monthly installment or installments due Lessor for its estimate of Lessee's Pro
Rata Share of Excess Real Estate Taxes and Lessee's Pro Rata Share of Excess
Operating Expenses for the next following Lease Year. A pro rata adjustment
shall be made for a fractional Lease Year occurring during the term of this
Lease or any renewal or extension thereof based upon the number of days of the
term of this Lease during said Lease Year as compared to three hundred
sixty-five (365) days and all additional sums payable by Lessee or credits due
Lessee as a result of the provisions of this Article II shall be adjusted
accordingly.
Further, Lessee shall pay, also as Additional Rent, any tax or excise on
rents, gross receipts tax, or other tax, however described, which is levied or
assessed by the United States of America or the state in which the
Office/Warehouse Complex is located or any political subdivision thereof,
against Lessor in respect to the Base Rent, Additional Rent, or other charges
reserved under this Lease or as a result of Lessor's receipt of such rents or
other charges accruing under this Lease; provided, however, Lessee shall have no
obligation to pay net income taxes of Lessor.
ARTICLE III. OVERDUE AMOUNTS - RENT INDEPENDENT: Any installment of Base Rent,
Additional Rent, or other charges to be paid by Lessee accruing under the
provisions of this Lease, which shall not be paid when due, shall bear interest
at the rate of ten percent (10%) per annum from the date when the same is due
until the same shall be paid, but if such rate exceeds the maximum interest rate
permitted by law, such rate shall be reduced to the highest rate allowed by law
under the circumstances. Lessee's covenants to pay the Base Rent and the
Additional Rent are independent of any other covenant, condition, provision or
agreement herein contained.
ARTICLE IV. POSSESSION OF PREMISES: If Lessor shall be unable to give possession
of the Premises on the date of the commencement of the term because the
construction of the Office/Warehouse Complex or the completion of the Premises
has not been sufficiently completed to make the Premises ready for occupancy, or
for any other reason, Lessor shall not be subject to any claims, damages or
liabilities for the failure to give possession on said date. The rent reserved
and covenant to pay same shall commence on May 1, 2004, and failure to give
possession on the date of commencement of the term shall in no way affect the
validity of this Lease or the obligations of Lessee hereunder, nor shall the
same be construed in any way to
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extend the expiration date of the term. Lack of completion of the Lessee
Improvements shall not prevent commencement of the term and rental payments as
set forth above. Lessor shall deliver possession of the Premises at such time as
the Lessee Improvements set forth in Article XXX have been substantially
completed.
The acceptance of possession by Lessee shall be deemed conclusively to
establish that the Premises and all other improvements of the Office/Warehouse
Complex required to be constructed by Lessor for use thereof by Lessee hereunder
have been completed unless Lessee notifies Lessor in writing within sixty (60)
days after commencement of the term as to any items not completed. Lessee waives
any claim as to matters not listed in said notice.
ARTICLE V. SERVICES:
A. All electric lighting bulbs and tubes and all ballasts and starters within
the Premises shall be replaced by Lessee at the expense of Lessee.
B. Subject to Article II hereof, Lessor shall provide maintenance in good
order, condition and repair of the parking facilities and all driveways
leading thereto and keeping the same free from any unreasonable
accumulation of snow. Lessor shall keep and maintain the landscaped area
and parking facilities in a neat and orderly condition. Lessor reserves the
right to designate areas of the appurtenant parking facilities where
Lessee, its agents, employees and invitees shall park and may exclude
Lessee, its agents, employees and invitees from parking in other areas as
designated by Lessor, provided, however, Lessor shall not be liable to
Lessee for the failure of any tenant, its invitees, employees, agents, and
customers to abide by Lessor's designations or restrictions.
C. Lessee shall provide all cleaning and janitorial services required in
respect to the Premises.
No interruption in, or temporary stoppage of, any of the aforesaid services
caused by repairs, renewals, improvements, alterations, strikes, lockouts, labor
controversy, accidents, inability to obtain fuel or supplies, or other causes
shall be deemed an eviction or disturbance of Lessee's use and possession, or
render Lessor liable for damages, by abatement of rent or otherwise or relieve
Lessee from any obligation herein set forth. In no event shall Lessor be
required to provide any heat, air conditioning, electricity or other service in
excess of that permitted by voluntary or involuntary guidelines or laws,
ordinances or regulations of governmental authority.
ARTICLE VI. USE: The Premises shall be used for Office/Warehouse and
manufacturing purposes (including paint booth operations), and for carrying on
such activities as may be incidental thereto; provided, however, Lessee may not
use or occupy the Premises, or knowingly permit the Premises to be used or
occupied, contrary to any statute, rule, order, ordinance, requirement or
regulation applicable thereto, or in any manner which would violate any
certificate of occupancy or permit affecting the same, or which would cause
structural injury to the Premises or cause the value or usefulness of the
Premises, or any part thereof, substantially to
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diminish (reasonable wear and tear excepted) or which would constitute a private
or public nuisance or waste, and Lessee agrees that it will promptly, upon
discovery of any such use, take all necessary steps to compel the discontinuance
of such use.
ARTICLE VII. CERTAIN RIGHTS RESERVED BY LESSOR: Lessor reserves the following
rights exercisable without notice and without liability to Lessee and without
effecting an eviction, constructive or actual, or disturbance of Lessee's use or
possession, or giving rise to any claim for setoff or abatement of rent:
A. To control, install, affix and maintain any and all signs on the Property,
or on the exterior of the Office/Warehouse Complex and in any common
corridors, entrances and other common areas thereof, except those signs
within the Premises not visible from outside the Premises.
B. To reasonably designate, limit, restrict and control any service in or to
the Office/Warehouse Complex, including but not limited to the designation
of sources from which Lessee may obtain sign painting and lettering. Any
restriction, designation, limitation or control imposed by reason of this
subparagraph shall be imposed uniformly on Lessee and other tenants
occupying space in the Office/Warehouse Complex.
C. To retain at all times and to use in appropriate instances keys to all
doors within and into the Premises. No locks shall be changed without the
prior written consent of Lessor, which shall not unreasonably be withheld.
This provision shall not apply to Lessee's safes, or other areas maintained
by Lessee for the safety and security of monies, securities, negotiable
instruments or like items. Notwithstanding the above provisions of this
Subparagraph C, in the event Lessee desires that Lessor not have keys to
the Premises, Lessee shall pay for the reasonable costs for repair of all
damage to doors to the Premises caused by persons attempting to gain
entrance in the event of an emergency or perceived emergency.
D. To make repairs, alterations, additions, or improvements, whether
structural or otherwise, in and about the Office/Warehouse Complex, or any
part thereof, and for such purposes to enter upon the Premises, and during
the continuation of any of said work, to temporarily close doors,
entryways, public spaces, and corridors in the Office/Warehouse Complex and
to interrupt or temporarily suspend services and facilities.
Notwithstanding the above, Lessor shall not make alterations, additions or
improvements to the Office/Warehouse Complex which would materially
adversely affect Lessee's rights to use the Premises granted herein or
Lessee's parking rights or access to the Premises.
E. To approve the weight, size and location of safes and other heavy equipment
and articles in and about the Premises and the Office/Warehouse Complex and
to require all such items to be moved into and out of the Office/Warehouse
Complex and the Premises only at such times and in such manner as Lessor
shall direct in writing.
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ARTICLE VIII. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make any
improvements, alterations, additions or installations in or to the Premises
(hereinafter referred to as the "Work") without Lessor's prior written consent,
which consent (subject to other provisions in this Article VIII) shall not
unreasonably be conditioned, withheld or delayed. Along with any request for
Lessor's consent and before commencement of the Work or delivery of any
materials to be used in the Work to the Premises or into the Office/Warehouse
Complex, Lessee shall furnish Lessor with plans and specifications, names and
addresses of contractors, copies of contracts, necessary permits and licenses,
and an indemnification in such form and amount as may be reasonably satisfactory
to Lessor and a performance bond executed by a commercial surety reasonably
satisfactory to Lessor, and in an amount equal to the Work and the payment of
all liens for labor and material arising therefrom. Lessee agrees to defend and
hold Lessor forever harmless from any and all claims and liabilities of any kind
and description which may arise out of or be connected in any way with said
improvements, alterations, additions or installations. All Work shall be done
only by contractors or mechanics reasonably approved by Lessor and at such time
and in such manner as Lessor may from time to time reasonably designate. All
work done by Lessee, its agents, employees, or contractors shall be done in such
a manner as to avoid labor disputes. Lessee shall pay the cost of all such
improvements, alterations, additions or installations (including a reasonable
charge for Lessor's services and for Lessor's inspection and engineering time),
and also the cost of painting, restoring, or repairing the Premises and the
Office/Warehouse Complex occasioned by such improvements, alterations, additions
or installations. Upon completion of the Work, Lessee shall furnish Lessor with
contractor's affidavits and full and final waivers of liens, and receipted bills
covering all labor and materials expended and used. The Work shall comply with
all insurance requirements and all laws, ordinances, rules and regulations of
all governmental authorities and shall be constructed in a good and workmanlike
manner. Lessee shall permit Lessor to inspect construction operations in
connection with the Work. Lessee shall not be allowed to make any alterations,
modifications, improvements, additions, or installations if such action results
or would result in a labor dispute or otherwise would materially interfere with
Lessor's operation of the Office/Warehouse Complex. Lessor, by written notice to
Lessee given at or prior to termination of this Lease, may require Lessee to
remove any improvements, additions or installation installed by Lessee in the
Premises at Lessee's sole cost and expense, and repair or restore any damage
caused by the installation and removal of such improvements, additions, or
installations; provided, however, the only improvements, additions or
installations which Lessee shall remove shall be those specified in such notice.
ARTICLE IX. REPAIRS: Lessee shall, during the term of this Lease, at Lessee's
expense, keep the Premises in as good order, condition and repair as they were
at the time Lessee took possession of the same, reasonable wear and tear and
insured damage from fire and other casualties excepted. Lessee shall keep the
Premises in a neat and sanitary condition and shall not commit any nuisance or
waste on the Premises or in, on, or about the Office/Warehouse Complex, throw
foreign substances in the plumbing facilities, or waste any of the utilities
furnished by Lessor. All uninsured damage or injury to the Premises, or to the
Office/Warehouse Complex caused by Lessee moving furniture, fixtures, equipment,
or other devices in or out of the Premises or Office/Warehouse Complex or by
installation or removal of furniture, fixtures, equipment, devices or other
property of Lessee, its agents, contractors, servants or employees,
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due to carelessness, omission, neglect, improper conduct, or other cause of
Lessee, its servants, employees, agents, visitors, or licensees, shall be
repaired, restored and replaced promptly by Lessee at its sole cost and expense
to the reasonable satisfaction of Lessor. All repairs, restorations and
replacements shall be in quality and class equal to the original work.
Lessor or its employees, or agents, shall have the right to enter the
Premises at any reasonable time or times for the purpose of inspection,
cleaning, repairs, altering, or improving the same but nothing contained herein
shall be construed as imposing any obligation on Lessor to make any repairs,
alterations or improvements which are the obligation of Lessee.
Lessee shall cooperate during the last month of the term for the express
purpose of meeting for a joint inspection of the Premises.
ARTICLE X. INSURANCE: Lessor shall keep the Office/Warehouse Complex insured for
the benefit of Lessor in an amount equivalent to the full replacement value
thereof (excluding foundation, grading and excavation costs) against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are now, or
may in the future be, customarily covered with respect to buildings and
improvements similar in construction, general location, use, occupancy and
design to the Office/Warehouse Complex, including, but without limiting the
generality of the foregoing, windstorms, hail, explosion, vandalism,
malicious mischief, civil commotion, and such other coverage as may be
deemed necessary by Lessor, providing such additional coverage is
obtainable and providing such additional coverage is such as is customarily
carried with respect to buildings and improvements similar in construction,
general location, use, occupancy and design to the Office/Warehouse
Complex.
These insurance provisions shall in no way limit or modify any of the
obligations of Lessee under any provision of this Lease. Lessor agrees that such
policy or policies of insurance shall contain a waiver of subrogation clause as
to Lessee and Lessor waives, releases and discharges Lessee from all claims or
demands whatsoever which Lessor may have or acquire arising out of damage to or
destruction of the Office/Warehouse Complex or Lessor's business therein
occasioned by fire or other cause, which such claim or demand may arise because
of the negligence or fault of Lessee, its agents, employees, customers or
business invitees, or otherwise, and Lessor agrees to look to the insurance
coverage only in the event of such loss; provided, however, Lessor does not
release or waive any rights against Lessee, or discharge Lessee from any claims,
losses or expenses arising out of violations by Lessee or its agents,
contractors, or employees of any environmental covenant herein or of any laws
relating to the environment or hazardous materials or from any claims arising
out of intentional damage to Lessor's property. Notwithstanding the foregoing,
Lessee shall be obligated to pay the rental called for hereunder in the event of
damage to or destruction of the Premises or the Office/Warehouse Complex if such
damage or destruction is occasioned by the negligence or fault of Lessee, its
agents or employees.
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Insurance premiums paid thereon shall be a portion of the "Operating Expenses"
described in Article II hereof.
Lessee shall keep all of its machinery, equipment, furniture, fixtures,
personal property (including also property under the care, custody or control of
Lessee) and business interests which may be located in, upon, or about the
Premises insured for the benefit of Lessee in an amount equivalent to the full
replacement value or insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are now, or
may in the future be, customarily covered with respect to a tenant's
machinery, equipment, furniture, fixtures, personal property and business
located in a building similar in construction, general location, use,
occupancy and design to the Office/Warehouse Complex, including, but
without limiting the generality of the foregoing, windstorms, hail,
explosions, vandalism, theft, malicious mischief, civil commotion, and such
other coverage as Lessee may deem appropriate or necessary.
Lessee agrees that such policy or policies of insurance shall contain a
waiver of subrogation clause as to Lessor and Lessee waives, releases and
discharges Lessor from all claims or demands whatsoever which Lessee may have or
acquire arising out of damage to or destruction of the machinery, equipment,
furniture, fixtures, personal property, and business of Lessee occasioned by
fire or other cause, whether such claim or demand may arise because of the
negligence or fault of Lessor, its agents, employees, subcontractors or
otherwise, and Lessee agrees to look to the insurance coverage only in the event
of such loss.
Lessor shall, as a portion of the Operating Expenses defined in Article II,
maintain, for its benefit and the benefit of its managing agent, commercial
general liability insurance against claims for personal injury, death or
property damage occurring upon, in or about the Office/Warehouse Complex, such
insurance to afford protection to Lessor and its managing agent.
Lessee shall, at Lessee's sole cost and expense but for the mutual benefit
of Lessor, its managing agent and Lessee, maintain commercial general liability
insurance against claims for personal injury, death or property damage occurring
upon, in or about the Premises, such insurance to afford protection to Lessor,
its managing agent and Lessee to the limit of not less than Three Million and
00/100 Dollars ($3,000,000.00) single limit coverage on an occurrence basis.
Such policies of insurance shall be written in companies reasonably satisfactory
to Lessor, naming Lessor and its managing agent as additional insureds
thereunder, and such policies, or a memorandum or certificate of such insurance,
shall be delivered to Lessor endorsed "Premium Paid" by the company or agency
issuing the same or accompanied by other evidence satisfactory to Lessor that
the premium thereon has been paid. At such time as insurance limits required of
tenants in Office/Warehouse buildings in the area in which the Office/Warehouse
Complex is located are generally increased to greater amounts, Lessor shall have
the right to require such greater limits as may then be customary. Lessee agrees
to include in such policy the contractual
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liability coverage insuring Lessee's indemnification obligations provided for
herein. Any such coverage shall be deemed primary to any liability coverage
secured by Lessor.
Lessee agrees to indemnify and save Lessor and its managing agent harmless
against and from any and all third party (other than Lessor's affiliates)
claims, loss, damage and expense arising out of bodily injury or property damage
by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any breach or default on the part of Lessee in the
performance of any covenant or agreement on the part of Lessee to be performed,
pursuant to the terms of this Lease, or arising from any act or negligence on
the part of Lessee or its agents, contractors, employees or invitees,
concessionaires, licensees, subtenants, or arising from any accident, injury or
damage to the extent caused by Lessee, or its contractors, agents and employees
or invitees, concessionaires, licensees, subtenants, to any person, firm or
corporation occurring during the term of this Lease, or any renewal thereof, in
or about the Premises and Office/Warehouse Complex, and from and against all
costs, reasonable counsel fees, expenses and liabilities incurred in or about
any such claim or action or proceeding brought thereon; and in case any action
or proceeding be brought against Lessor or its managing agent by reason of any
such claim, Lessee, upon notice from Lessor, covenants to resist or defend such
action or proceeding by counsel reasonably satisfactory to Lessor.
Lessor agrees to indemnify and save Lessee harmless against and from any
and all third party (other than Lessee's affiliates) claims, loss, damage or
expense arising out of bodily injury or property damage by or on behalf of any
person or persons, firm or firms, corporation or corporations, other than Lessee
or its affiliates, subtenants, assigns, or employees, arising from any breach or
default on the part of Lessor in the performance of any covenant or agreement on
the part of Lessor to be performed, pursuant to the terms of this Lease, or
arising from any act or negligence or misconduct on the part of Lessor or its
agents, employees, servants, or contractors or arising from any accident, injury
or damage to the extent caused by Lessor, its agents and employees to any
person, firm or corporation occurring during the term of this Lease or any
renewal thereof, in or about the Premises and Office/Warehouse Complex, and from
and against all costs, reasonable counsel fees, expenses and liabilities
incurred in or about any such claim or action or proceeding brought thereon; and
in case any action or proceeding be brought against Lessee by reason of any such
claim, Lessor, upon notice from Lessee, covenants to resist or defend such
action or proceeding by counsel reasonably satisfactory to Lessee.
Lessee agrees, to the extent not expressly prohibited by law, that Lessor,
its agents, employees and servants shall not be liable, and Lessee waives all
claims for damage to property and business sustained during the term of this
Lease by Lessee occurring in or about the Office/Warehouse Complex, resulting
directly or indirectly from any existing or future condition, defect, matter or
thing in the Premises, the Office/Warehouse Complex, or any part thereof, or
from equipment or appurtenances becoming out of repair or from accident, or from
any occurrence or act or omission of Lessor, its agents, employees or servants,
or any tenant or occupant of the Building or any other person. This paragraph
shall apply especially, but not exclusively, to damage caused as aforesaid or by
the flooding of basements or other subsurface areas, or by refrigerators,
sprinkling devices, air conditioning apparatus, water, snow, frost, steam,
excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or
noise, or the
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bursting or leaking of pipes or plumbing fixtures, and shall apply equally,
whether any such damage results from the act or omission of other tenants or
occupants in the Office/Warehouse Complex or any other persons, and whether such
damage be caused by or result from any of the aforesaid, or shall be caused by
or result from other circumstances of a similar or dissimilar nature.
Anything herein to the contrary notwithstanding, in the event any damage to
the Office/Warehouse Complex results from any act or omission of Lessee, its
agents, employees or invitees, and all or any portion of Lessor's loss is
"deductible," Lessee shall pay to Lessor the amount of such deductible loss (not
to exceed $5,000 per event). All property in the Office/Warehouse Complex or on
the Premises belonging to Lessee, its agents, employees, invitees or otherwise
located at the Premises, shall be at the risk of Lessee only, and Lessor shall
not be liable for damage thereto or theft, misappropriation or loss thereof and
Lessee agrees to defend and hold Lessor, its agents, employees and servants
harmless and indemnify them against claims and liability for injuries to such
property.
ARTICLE XI. ASSIGNMENT AND SUBLETTING: Lessee shall not, without the prior
written consent of Lessor, (i) transfer, pledge, mortgage or assign this Lease
or any interest hereunder; (ii) permit any assignment of this Lease by voluntary
act, operation of law or otherwise; (iii) sublet the Premises or any part
thereof; or (iv) permit the use of the Premises by any parties other than
Lessee, its agents and employees. Lessee shall seek such written consent of
Lessor by a written request therefor, setting forth such information as Lessor
may deem necessary. Lessee shall, by notice in writing, advise Lessor of its
intention from, on and after a stated date (which shall not be less than thirty
[30] days after date of Lessee's notice), to assign this Lease or to sublet any
part or all of the Premises for the balance or any part of the term. Lessee's
notice shall include all of the terms of the proposed assignment or sublease and
shall state the consideration therefor. In such event, Lessor shall have the
right to be exercised by giving written notice to Lessee within thirty (30) days
after receipt of Lessee's notice, to recapture the space described in Lessee's
notice and such recapture notice shall, if given, cancel and terminate this
Lease with respect to the space therein described as of the date stated in
Lessee's notice. Lessee's notice shall state the name and address of the
proposed assignee or subtenant and a true and complete copy of the proposed
assignment or sublease shall be delivered to Lessor with Lessee's notice. If
Lessee's notice shall cover all of the Premises, and Lessor shall have exercised
its foregoing recapture right, the term of this Lease shall expire and end on
the date stated in Lessee's notice as fully and completely as if that date had
been herein definitely fixed for the expiration of the term. If, however, this
Lease be canceled with respect to less than the entire Premises, the Base Rent
and Additional Rent shall be equitably adjusted by Lessor with due consideration
of the size, location, type and quality of the portion of the Premises so
remaining after the "recapture" and such rent shall be reduced accordingly from
and after the termination date for said portion, and this Lease as so amended
shall continue thereafter in full force and effect. The rent adjustments
provided for herein shall be evidenced by an amendment to Lease executed by
Lessor and Lessee. If this Lease shall be terminated in the manner aforesaid,
either as to the entire Premises or only a portion thereof, to such extent the
term of this Lease shall end upon the appropriate effective date of the proposed
sublease or assignment as if that date had been originally fixed in this Lease
for such expiration, and in the event of a
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termination affecting less than the entire Premises, Lessee shall comply with
Article XIV ("Surrender of Premises") of this Lease with respect to such portion
of the Premises affected thereby.
In the event of any termination pursuant to this paragraph, Lessee shall,
at its sole cost and expense, discharge in full (i) any outstanding commission
obligation on the part of Lessor with respect to that part of this Lease so
terminated, and (ii) any commission which may be due and owing as a result of
any proposed assignment or subletting, whether or not the subject portion of the
Premises is "recaptured" pursuant thereto and rented by Lessor to the proposed
tenant or any other tenant.
If Lessor, upon receiving Lessee's notice with respect to any such space,
shall not exercise its right to recapture as aforesaid, Lessor will not
unreasonably withhold its consent to Lessee's assignment of the Lease or
subletting such space to the party identified in Lessee's notice, provided,
however, that in the event Lessor consents to any such assignment or subletting,
and as a condition thereto, Lessee shall pay to Lessor ninety percent (90%) of
all profit after Lessee has recouped its costs of negotiating and consummating
any such assignment or subletting derived by Lessee from such assignment or
subletting. In any such event, such assignee or sublessee must meet Lessor's
reasonable credit standards as a condition to Lessor's consent. For purposes of
the foregoing, profit shall be deemed to include, but shall not be limited to,
the amount of all rent payable by such assignee or sublessee in excess of the
Base Rent, and rent adjustments, payable by Lessee under this Lease. If a part
of the consideration for such assignment or subletting shall be payable other
than in cash, the payment to Lessor shall be in cash for its share of any
non-cash consideration based upon the fair market value thereof.
No sublease or assignment may be made, in any event, unless the following
conditions are met:
(a) Any guarantor of, or party liable for, any of Lessee's obligations
under this Lease shall be required to consent to the assignment or
subletting and confirm that its guarantee or other obligations
continue in full force and effect notwithstanding such assignment or
subletting.
(b) That Lessee shall pay all of Lessee's costs and expenses and all of
Lessor's reasonable out-of-pocket expenses in connection with the
making of such assignment or sublease;
(c) Lessee shall deliver to Lessor an executed copy of each sublease or
assignment within ten (10) days after the execution thereof, together
with copies of any other agreement relating thereto, and a memorandum
detailing any oral agreement or understanding between Lessee and the
assignee or subtenant;
Lessee shall and hereby agrees that it will furnish to Lessor upon request
from Lessor a complete statement, certified by an independent certified public
accountant, setting forth in detail the computation of all profit derived and to
be derived from such assignment or subletting, such
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computation to be made in accordance with generally accepted accounting
principles. Lessee agrees that Lessor or its authorized representatives shall be
given access at all reasonable times to the books, records and papers of Lessee
relating to any such assignment or subletting, and Lessor shall have the right
to make copies thereof. The percentage of Lessee's profit due Lessor hereunder
shall be paid to Lessor within five (5) days of receipt by Lessee of all
payments made from time to time by such assignee or sublessee to Lessee.
For purposes of the foregoing, any change in the partners of Lessee, if
Lessee is a partnership, or, if Lessee is a corporation, any transfer of any or
all of the shares of stock of Lessee by sale, assignment, operation of law or
otherwise resulting in a change in the present control of such corporation by
the person or persons owning a majority of such shares as of the date of this
Lease, shall be deemed to be an assignment within the meaning of this Article
XI.
Any subletting or assignment hereunder shall not release or discharge
Lessee, or any other person or party liable for Lessee's obligations under this
Lease, of or from any liability, whether past, present or future, under this
Lease, and Lessee shall continue fully liable hereunder. The subtenant or
subtenants or assignee shall agree in a form satisfactory to Lessor to comply
with and assume and be bound by all of the terms, covenants, conditions,
provisions and agreements of this Lease to the extent of the space sublet or
assigned, and Lessee shall deliver to Lessor promptly after execution an
executed copy of each such sublease or assignment and an agreement of compliance
by each such subtenant or assignee. Consent by Lessor to any assignment of this
Lease or to any subletting of the Premises shall not be a waiver of Lessor's
rights under this Article as to any subsequent assignment or subletting.
Any sale, assignment, mortgage, transfer, or subletting of this Lease which
is not in compliance with the provisions of this Article XI shall be of no
effect and void. Lessor's right to assign its interest in this Lease shall
remain unqualified. Lessor may make a reasonable charge to Lessee for any
reasonable attorney's fees or expenses incident to a review of any documentation
related to any proposed assignment or subletting by Lessee.
Notwithstanding anything to the contrary in this Lease, Lessee shall not
assign its rights under this Lease or sublet all or any part of the Premises to
a person, firm or corporation which is (or, immediately prior to such subletting
or assignment, was) a tenant or occupant of the Office/Warehouse Complex or any
building on property contiguous to the Office/Warehouse Complex owned by Lessor
under the Lease.
Anything in this Lease to the contrary notwithstanding, Lessee shall have
the right to assign or sublease the Premises to an affiliated U.S. entity,
without the consent of Lessor, subject to the other provisions of this Article
X. An affiliated entity shall be defined as including any entity, the
controlling interest of which is owned by either a general partner of Lessee or
the controlling (50% or more) parent of a general partner of Lessee, domestic
U.S. parent corporation or entity of Lessee owning at least fifty percent (50%)
of the equity interest of Lessee, any domestic U.S. subsidiary of Lessee or its
affiliated parent company or any U.S. domestic corporation which purchases
substantially all of the assets of Lessee.
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Subsequent to any assignment, Lessor need not consent to any amendment or
modification of this Lease unless all prior assignees consent to such amendment
or modification and confirm their continuing liability as Lessee under the Lease
as amended or modified.
ARTICLE XII. DAMAGE BY FIRE OR OTHER CASUALTY: If fire or other casualty shall
render the whole or any material portion of the Premises untenantable, and the
Premises can reasonably be expected to be made tenantable within one hundred
twenty (120) days from the date of such event, then Lessor shall repair and
restore the Premises and the Office/Warehouse Complex to as near their condition
prior to the fire or other casualty as is reasonably possible within such one
hundred twenty (120) day period (subject to delays for causes beyond Lessor's
reasonable control) and notify Lessee that it will be doing so, such notice to
be mailed within thirty (30) days from the date of such damage or destruction,
and this Lease shall remain in full force and effect, but the rent for the
period during which the Premises are untenantable shall be abated pro rata
(based upon the portion of the Premises which is untenantable). If Lessor is
required to repair the Office/Warehouse Complex and/or the Premises, as
aforesaid, said work shall be undertaken and prosecuted with all due diligence
and speed.
If fire or other casualty shall render the whole or any material part of
the Premises untenantable and the Premises cannot reasonably be expected to be
made tenantable within one hundred twenty (120) days from the date of such
event, then either party, by notice in writing to the other mailed within thirty
(30) days from the date of such damage or destruction, may terminate this Lease
effective upon a date within thirty (30) days from the date of such notice.
In the event that more than fifty percent (50%) of the value of the
Office/Warehouse Complex is damaged or destroyed by fire or other casualty, and
irrespective of whether the Office/Warehouse Complex or Premises can be made
tenantable within one hundred twenty (120) days thereafter, then at Lessor's
option, by written notice to Lessee, mailed within forty-five (45) days from the
date of such damage or destruction, Lessor may terminate this Lease effective
upon a date within ninety (90) days from the date of such notice to Lessee.
If fire or other casualty shall render the whole or any material part of
the Premises untenantable and the Premises cannot reasonably be expected to be
made tenantable within one hundred twenty (120) days from the date of such event
and neither party hereto terminates this Lease pursuant to its rights herein or
in the event that more than fifty percent (50%) of the value of the
Office/Warehouse Complex is damaged or destroyed by fire or other casualty, and
Lessor does not terminate this Lease pursuant to its option granted herein, or
in the event that fifty percent (50%) or less of the value of the
Office/Warehouse Complex is damaged or destroyed by fire or other casualty and
neither the whole nor any material portion of the Premises is rendered
untenantable, then Lessor shall repair and restore the Premises and the
Office/Warehouse Complex to as near their condition prior to the fire or other
casualty as is reasonably possible with all due diligence and speed (subject to
delays for causes beyond Lessor's reasonable control) and the rent for the
period during which the Premises are untenantable shall be abated pro rata
(based upon the portion of the Premises which is untenantable). In no event
shall Lessor be obligated to repair or restore any special equipment or
improvements installed by Lessee at Lessee's expense.
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In the event of a termination of this Lease pursuant to this Article, rent
shall be apportioned on a per diem basis and paid to the date of the fire or
other casualty.
ARTICLE XIII. EMINENT DOMAIN: If the whole of or any substantial part of the
Premises is taken by any public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render (in
Lessee's reasonable judgment) the remaining portion of the Premises unsuitable
for the purposes intended hereunder, then the term of this Lease shall cease as
of the day possession shall be taken by such public authority and Lessor shall
make a pro rata refund of any prepaid rent. All damages awarded for such taking
under the power of eminent domain or any like proceedings shall belong to and be
the property of Lessor, Lessee hereby assigning to Lessor its interest, if any,
in said award. In the event that fifty percent (50%) or more of the building
area or fifty percent (50%) or more of the value of the Office/Warehouse Complex
is taken by public authority under the power of eminent domain, then, at
Lessor's option, by written notice to Lessee, mailed within sixty (60) days from
the date possession shall be taken by such public authority, Lessor may
terminate this Lease effective upon a date within ninety (90) days from the date
of such notice to Lessee. Further, if the whole of or any material part of the
Premises is taken by public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render the
remaining portion of the Premises unsuitable in Lessee's reasonable opinion, for
the purposes intended hereunder, upon delivery of possession to the condemning
authority pursuant to the proceedings, Lessee may, at its option, terminate this
Lease as to the remainder of the Premises by written notice to Lessor, such
notice to be given to Lessor within thirty (30) days after Lessee receives
notice of the taking. Lessee shall not have the right to terminate this Lease
pursuant to the preceding sentence unless (i) the business of Lessee conducted
in the portion of the Premises taken cannot in Lessee's reasonable judgment be
carried on with substantially the same utility and efficiency in the remainder
of the Premises (or any substitute space securable by Lessee pursuant to clause
(ii) hereof); and (ii) Lessee cannot secure substantially similar (in Lessee's
reasonable judgment) alternate space upon the same terms and conditions as set
forth in this Lease (including rental) from Lessor in the Office/Warehouse
Complex. Any notice of termination shall specify the date no more than sixty
(60) days after the giving of such notice as the date for such termination.
Anything in this Article XIII to the contrary notwithstanding, Lessee shall
have the right to prove in any condemnation proceedings and to receive any
separate award which may be made for damages to or condemnation of Lessee's
movable trade fixtures and equipment and for moving expenses; provided, however,
Lessee shall in no event have any right to receive any award for its interest in
this Lease or for loss of leasehold. Anything in this Article XIII to the
contrary notwithstanding, in the event of a partial condemnation of the
Office/Warehouse Complex or the Premises and this Lease is not terminated,
Lessor shall, at its sole cost and expense, restore the Premises and
Office/Warehouse Complex to a complete architectural unit and the Base Rent
provided for herein during the period from and after the date of delivery of
possession pursuant to such proceedings to the termination of this Lease shall
be reduced to a sum equal to the product of the Base Rent provided for herein
multiplied by a fraction, the numerator of which is the fair market rent of the
Premises after such taking and after the same
-17-
has been restored to a complete architectural unit, and the denominator of which
is the fair market rent of the Premises prior to such taking.
ARTICLE XIV. SURRENDER OF PREMISES: On the last day of the term of this Lease,
or on the sooner termination thereof, Lessee shall peaceably surrender the
Premises in good condition and repair consistent with Lessee's duty to make
repairs as herein provided. On or before the last day of the term of this Lease,
or the date of sooner termination thereof, Lessee shall, at its sole cost and
expense, remove all of its property and trade fixtures and equipment from the
Premises, and all property not removed shall be deemed abandoned. Lessee hereby
appoints Lessor its agent to remove all property of Lessee from the Premises
upon termination of this Lease and to cause its transportation and storage for
Lessee's benefit, all at the sole cost and risk of Lessee and Lessor shall not
be liable for damage, theft, misappropriation or loss thereof and Lessor shall
not be liable in any manner in respect thereto. Lessee shall pay all costs and
expenses of such removal, transportation and storage. Lessee shall leave the
Premises in good order, condition and repair, reasonable wear and tear and
uninsured damage from fire and other casualty excepted. Lessee shall reimburse
Lessor upon demand for any expenses incurred by Lessor with respect to removal,
transportation, or storage of abandoned property and with respect to restoring
said Premises to good order, condition and repair. All alterations, additions
and fixtures, other than Lessee's trade fixtures and equipment, which have been
made or installed by either Lessor or Lessee upon the Premises, shall remain the
property of Lessor and shall be surrendered with the Premises as a part thereof.
If the Premises be not surrendered at the end of the term or sooner termination
thereof, Lessee shall indemnify Lessor against loss or liability resulting from
delay by Lessee in so surrendering the Premises, including, without limitation,
claims made by any succeeding tenants founded on such delay and any attorneys'
fees resulting therefrom. Lessee shall promptly surrender all keys for the
Premises to Lessor at the place then fixed for the payment of rent and shall
inform Lessor of combinations on any vaults, locks and safes left on the
Premises.
In the event Lessee remains in possession of the Premises after expiration
of this Lease, and without the execution of a new lease, but with Lessor's
written consent, it shall be deemed to be occupying the Premises as a tenant
from month-to-month, subject to all the provisions, conditions and obligations
of this Lease insofar as the same can be applicable to a month-to-month tenancy,
except that the Base Rent shall be escalated to Lessor's then current base rent
for the Premises according to Lessor's then current rental rate schedule for
prospective tenants. In the event Lessee remains in possession of the Premises
after expiration of this Lease and without the execution of a new lease and
without Lessor's written consent, Lessee shall be deemed to be occupying the
Premises without claim of right and Lessee shall pay Lessor for all costs
arising out of loss or liability resulting from delay by Lessee in so
surrendering the Premises as above provided and shall pay a charge for each day
of occupancy an amount equal to double the Base Rent and Additional Rent (on a
daily basis) then currently being charged by Lessor on new leases in the
Office/Warehouse Complex for space similar to the Premises.
ARTICLE XV. DEFAULT OF LESSEE: All rights and remedies of Lessor herein
enumerated shall be cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Lessor may be lawfully entitled in case of
any breach or threatened
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breach of Lessee of any provision of this Lease. The failure of Lessor to insist
in any one or more cases upon the strict performance of any of the covenants of
this Lease or to exercise any option herein contained shall not be construed as
a waiver or relinquishment for the future of such covenant or option. A receipt
by Lessor of rent with knowledge of the breach of any covenant hereof (other
than breach of the obligation to pay the portion of such rent paid) shall not be
deemed a waiver of such breach, and no waiver by Lessor of any provisions of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Lessor. In addition to other remedies in this Lease provided, Lessor
shall be entitled to the restraint by injunction of the violation or attempted
or threatened violation of the covenants, conditions and provisions of this
Lease.
Subject to laws relating to bankruptcy, if, during the term of this Lease
or any renewal term, (i) Lessee shall make an assignment for the benefit of
creditors, or (ii) a voluntary petition be filed by Lessee under any law having
for its purpose the adjudication of Lessee a bankrupt, or Lessee be adjudged a
bankrupt pursuant to an involuntary petition in bankruptcy, or (iii) a receiver
be appointed for the property of Lessee by reason of the insolvency of Lessee,
or (iv) any department of the State or Federal government, or any officer
thereof, duly authorized, shall take possession of the business or property of
Lessee by reason of the insolvency of Lessee, the occurrence of any of such
contingencies shall be deemed a breach of this Lease and this Lease shall ipso
facto upon the happening of any of said contingencies be terminated and the same
shall expire as fully and completely as if the day fixed for the expiration of
the initial term of this Lease or any renewal term, as the case may be, had
occurred, and Lessee will then quit and surrender the Premises, but Lessee shall
remain liable as hereinafter provided. As used in this paragraph, the term
"Lessee" shall also mean any guarantor of Lessee's obligations under this Lease.
If, during the initial term of this Lease or any renewal term, (i) Lessee
shall default in fulfilling any of the covenants, obligations, or agreements of
this Lease (other than the covenants for the payment of rent payable by Lessee
hereunder), or (ii) this Lease, without the prior written consent of Lessor or
except as expressly permitted, shall be assigned, pledged, mortgaged,
transferred, or sublet in any manner, Lessor may give Lessee written notice of
such default or the happening of any contingency in this paragraph referred to
and, if at the expiration of thirty (30) days after service of such notice the
default or contingency upon which said notice was based shall continue to exist,
or in the event of a default or contingency which cannot with due diligence be
cured within a period of thirty (30) days, if Lessee fails to proceed promptly
after the service of said notice and with all due diligence to commence to cure
the same and thereafter to prosecute the curing of such default with all due
diligence (it being intended that in connection with a default not susceptible
of being cured with diligence within thirty [30] days, the time within which
Lessee is to cure the same shall be extended for such period as may be necessary
to complete the same with all due diligence), Lessor, at its option, may
terminate this Lease and upon such termination Lessee will quit and surrender
the Premises to Lessor but Lessee shall remain liable as hereinafter provided.
If Lessee defaults in any payment of the rent expressly reserved hereunder,
or any part of the same and such default shall continue for ten (10) business
days after written notice thereof
-19-
by Lessor, or if Lessee shall make default in the payment of any item or any
charge required to be paid by Lessee hereunder, or any part of the same and such
default shall continue for ten (10) business days after written notice thereof
by Lessor, Lessor or Lessor's agent or servant may immediately or at any time
thereafter terminate this Lease, and upon such termination for failure to pay
such rent, item, or charge, or if this Lease shall terminate by reason of the
insolvency of Lessee, as set forth above, Lessor or Lessor's agent or servant
may re-enter the Premises and remove all persons and all or any property
therefrom, either by summary dispossess proceedings, or by any suitable action
or proceeding at law or by force or otherwise, without being liable to
indictment, prosecution, or damage therefor and repossess and enjoy the
Premises, together with all additions, alterations and improvements, without
such re-entry and repossession working a forfeiture or waiver of the rents to be
paid and the covenants to be performed by Lessee during the full term of this
Lease. Upon termination of this Lease or expiration of Lessee's right to occupy
the Premises by reason of the happening of any of the foregoing events, or in
any other manner or circumstances whatsoever, whether with or without legal
proceedings, by reason of or based upon or arising out of a default or breach of
this Lease on the part of Lessee, Lessor may, at its option, at any time and
from time to time relet the Premises or any part or parts thereof, for the
account of Lessee or otherwise, and receive and collect the rent therefor,
applying the same first to the payment of such expenses as Lessor may have
incurred in recovering possession of the Premises, including attorney's fees and
expenses for putting the same into good order and condition or preparing or
altering the same for re-rental to the extent Lessor deems necessary or
desirable and all other expenses, commissions and charges paid, assumed or
incurred by Lessor in or about reletting the Premises and then to the
fulfillment of the covenants of Lessee hereunder. Any such reletting herein
provided for may be for the remainder of the initial term or any renewal term of
this Lease, as originally granted, or for a longer or shorter period; Lessor
shall have the right to change the character and use made of the Premises, and
Lessor shall not be required to accept any substitute tenant offered by Lessee
or to observe any instructions given by Lessee about reletting. In any such
case, and whether or not the Premises or any part thereof be relet, Lessee shall
pay to Lessor the Base Rent and all Additional Rent and other charges required
to be paid by Lessee up to the later of the time of such termination of the
Lease or of such recovery of possession of the Premises by Lessor, as the case
may be, and thereafter, except in a case in which liability of Lessee as
hereinafter provided, arises by reason of the happening of the insolvency of
Lessee, Lessee covenants and agrees, if required by Lessor, to pay to Lessor
(monthly) until the end of the initial term of this Lease, and/or any renewal
term, as the case may be, the equivalent of the amount of all rent reserved
hereunder, and all other charges required to be paid by Lessee, less the net
proceeds of reletting, if any. Lessor shall have the election at any time in
place of and instead of holding Lessee so liable for subsequent periods
forthwith to recover against Lessee as damages for loss of the bargain and not
as a penalty, an aggregate sum which at such time represents the excess, if any,
of the present worth of the aggregate of the rent and all other charges payable
by Lessee hereunder that would have accrued for the balance of the initial term,
and/or any renewal term, as the case may be, over the then present worth of the
fair market rents and all other charges (less the costs of anticipated leasing
commissions and tenant improvements) for the Premises for the balance of such
term.
If this Lease shall terminate by reason of the bankruptcy or insolvency of
Lessee, as above set forth, Lessor shall be entitled, notwithstanding any other
provisions of this Lease or
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any present or future law, to recover from Lessee or Lessee's estate (in lieu of
the equivalent of the amount of all rent unpaid at the time of such termination)
as damages for loss of the bargain, and not as a penalty, an aggregate sum
which, at the time of such termination of this Lease, represents the excess, if
any, of the then present worth of the aggregate of the rent and other charges
payable by Lessee hereunder that would have accrued for the balance of the
initial term and any renewal term, as the case may be, over the then present
worth of the fair market rents and all other charges for the Premises for the
balance of the initial term and any renewal term, as the case may be, unless any
statute or rule of law governing the proceedings in which such damages are to be
proved shall limit the amount of such claim capable of being so proved. In such
case, Lessor shall be entitled to prove, as and for liquidated damages, by
reason of such breach and termination of this Lease, the maximum amount which
may be allowed by or under such statute or rule of law. Nothing herein contained
shall limit or prejudice Lessor's right to prove and obtain as liquidated
damages arising out of such breach or termination the maximum amount allowed by
any such statute or rule of law which may govern the proceedings in which such
damages are to be proved whether or not such amount be greater, equal to, or
less than the amount of the excess of the then present worth of the rent and all
other charges reserved herein over the then present worth of the fair market
rents and all other charges referred to above.
Lessee shall pay, upon demand, all of Lessor's costs, charges and expenses,
including reasonable attorney's fees and fees of agents and others retained by
Lessor, incident to the enforcement of Lessee's obligations hereunder or
incurred by Lessor in any litigation, negotiation or transaction in which Lessee
causes Lessor without Lessor's fault to become involved or concerned, including
a fee of Ten and 00/100 Dollars ($10.00) for any default notice given by Lessor
to Lessee.
ARTICLE XVI. SUBORDINATION: This Lease shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed upon the
Premises, the Office/Warehouse Complex, the Property, or any portion thereof by
Lessor, its successors or assigns, and to amendments, replacements, renewals and
extensions thereof. Lessee agrees at any time hereafter, upon demand, to execute
and deliver any instruments, releases, or other documents that may be reasonably
required for the purpose of subjecting and subordinating this Lease, as above
provided, to the lien of any such mortgage, deed of trust or ground lease. It is
agreed, nevertheless, that as long as Lessee is not in default in the payment of
Base Rent, Additional Rent, and the payment of other charges to be paid by
Lessee under this Lease, and the performance of all covenants, agreements and
conditions to be performed by Lessee under this Lease, then neither Lessee's
right to quiet enjoyment under this Lease, nor the right of Lessee to continue
to occupy the Premises and to conduct its business thereon, in accordance with
the terms of this Lease as against any lessor, lessee, mortgagee, trustee, or
their successors or assigns shall be interfered with.
The above subordination shall be effective without the necessity of the
execution and delivery of any further instruments on the part of Lessee to
effectuate such subordination. Notwithstanding anything hereinabove contained in
this Article XVI, in the event the holder of any mortgage, deed of trust or
ground lease shall at any time elect to have this Lease constitute a prior and
superior lien to its mortgage, deed of trust or ground lease, then, and in such
event,
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upon any such holder or landlord notifying Lessee to that effect in writing,
this Lease shall be deemed prior and superior in lien to such mortgage, deed of
trust, or ground lease, whether this Lease is dated prior to or subsequent to
the date of such mortgage, deed of trust or ground lease and Lessee shall
execute such attornment agreement as may be reasonably requested by said holder.
Lessee agrees, provided the mortgagee, ground lessor or trust deed holder
under any mortgage, ground lease, deed of trust or other security instrument
shall have notified Lessee in writing (by way of a notice of assignment of lease
or otherwise) of its address, Lessee shall give such mortgagee, ground lessor or
trust deed holder, or other secured party ("Mortgagee") simultaneously with
delivery of notice to Lessor, by registered or certified mail, a copy of any
such notice of default served upon Lessor. Lessee further agrees that said
Mortgagee shall have the right to cure any alleged default during the same
period that Lessor has to cure such default.
Lessee, within fifteen (15) days after Lessor's request (from time to
time), shall execute a commercially reasonable Subordination, Non-Disturbance,
and Attornment Agreement. By way of example and not by way of limitation, the
sample non-disturbance, attornment, and subordination agreements attached hereto
as Exhibits E-l and E-2 are deemed approved by Lessee. Lessee shall cause all
guarantors of Lessee's obligations and all of Lessee's predecessors in interest
to execute such Non-Disturbance, Attornment and Subordination Agreement, and to
indicate that the obligations of such guarantor or predecessor in interest under
the Lease shall continue in full force and effect and shall be subject to and
shall include all Lessee's obligations under such agreement. Prior to recording
of any Mortgage prior to the Commencement Date that does not recognize Lessee's
rights as set forth in this Article XVI, Lessor shall cause the applicable
holder of such Mortgage to agree to a non-disturbance agreement in accordance
with the terms of this Article XVI. The lien of any such Mortgage shall not
cover Lessee's trade fixtures or other personal property located in or on the
Premises.
ARTICLE XVII. MISCELLANEOUS:
A. Lessee represents that Lessee has dealt directly with and only with Welsh
Companies, L.L.C. and WaterMark Real Estate Ventures, LLC, in connection
with this Lease and that insofar as Lessee knows, no other broker
negotiated or participated in negotiations of this Lease or submitted or
showed the Premises or is entitled to any commission in connection
therewith. Lessor represents that Lessor has dealt directly with and only
with Welsh Companies, L.L.C., as broker, in connection with this Lease and
that insofar as Lessor knows, no other broker negotiated or participated in
negotiations of this Lease or submitted or showed the Premises or is
entitled to any commission in connection therewith. Lessor shall pay the
commission payable to Welsh Companies, L.L.C. in accordance with the
written listing agreement between Lessor and Welsh Companies, L.L.C.
B. Lessee agrees from time to time upon not less than ten (10) days prior
written request by Lessor to deliver to Lessor a statement in writing
certifying (i) this Lease is unmodified and in full force and effect (or if
there have been modifications that the Lease as
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modified is in full force and effect and stating the modifications); (ii)
the date to which the rent and other charges have been paid; (iii) Lessor
is not in default in any provision of this Lease or, if in default, the
nature thereof specified in detail; (iv) the amount of monthly rental
currently payable by Lessee; (v) the amount of any prepaid rent, and (vi)
such other matters as may be reasonably requested by Lessor or any
Mortgagee or prospective purchaser of the Office/Warehouse Complex.
C. All notices, demands and requests shall be in writing, and shall be
effectively served in any of the following manners:
(i) If addressed to Lessee:
By forwarding such notice, demand or request by certified or
registered mail, postage prepaid, addressed to Lessee at:
Chief Manufacturing, Inc.
00000 Xxxxx Xxxxxxx 00
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
or at such other address as Lessee may hereafter designate by written
notice to Lessor, in which case said notice shall be effective at the
time of mailing such notice.
(ii) If addressed to Lessor:
By forwarding such notice, demand or request by certified or
registered mail, postage prepaid, addressed to Lessor at:
Opus Northwest, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Law Department
with a copy to:
Opus, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Law Department
or at such other address as Lessor may hereafter designate by written
notice to Lessee, in which case said notice shall be effective at the
time of mailing such notice.
D. All rights and remedies of Lessor under this Lease or that may be provided
by law may be executed by Lessor in its own name, individually, or in the
name of its agent, and all
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legal proceedings for the enforcement of any such rights or remedies,
including those set forth in Article XV, may be commenced and prosecuted to
final judgment and execution by Lessor in its own name or in the name of
its agent.
X. Xxxxxx covenants and agrees that Lessee, upon paying the Base Rent,
Additional Rent and other charges herein provided for and observing and
keeping the covenants, agreements and conditions of this Lease on its part
to be kept and performed, shall lawfully and quietly hold, occupy and enjoy
the Premises during the term of this Lease.
F. The covenants and agreements herein contained shall bind and inure to the
benefit of Lessor, its successors and assigns, and Lessee and its permitted
successors and assigns.
G. If any term or provision of this Lease shall to any extent be held invalid
or unenforceable, the remaining terms and provisions of this Lease shall
not be affected thereby, but each term and provision of this Lease shall be
valid and enforced to the fullest extent permitted by law. This Lease shall
be construed and enforced in accordance with the laws of the state in which
the Premises are located.
H. Lessee covenants not to do or suffer any waste or damage or disfigurement
or injury to the Premises or Office/Warehouse Complex and Lessee further
covenants that it will not abandon the Premises during the term of this
Lease.
I. The term "Lessor" as used in this Lease so far as covenants or obligations
on the part of Lessor are concerned shall be limited to mean and include
only the owner or owners of the Office/Warehouse Complex at the time in
question, and in the event of any transfer or transfers or conveyances the
then grantor shall be automatically freed and released from all personal
liability accruing from and after the date of such transfer or conveyance
as respects the performance of any covenant or obligation on the part of
Lessor contained in this Lease to be performed, it being intended hereby
that the covenants and obligations contained in this Lease on the part of
Lessor shall be binding on Lessor, its successors and assigns, only during
and in respect to their respective successive periods of ownership.
In the event of a sale or conveyance by Lessor of the Office/Warehouse
Complex or any part of the Office/Warehouse Complex, the same shall operate
to release Lessor from any future liability upon any of the covenants or
conditions herein contained and in such event Lessee agrees to look solely
to the responsibility of the successor in interest of Lessor in and to this
Lease. This Lease shall not be affected by any such sale or conveyance, and
Lessee agrees to attorn to the purchaser or grantee, which shall be
personally obligated on this Lease only so long as it is the owner of
Lessor's interest in and to this Lease.
J. The marginal or topical headings of the several Articles are for
convenience only and do not define, limit or construe the contents of said
Articles.
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K. All preliminary negotiations are merged into and incorporated in this
Lease.
L. This Lease can only be modified or amended by an agreement in writing
signed by the parties hereto. No receipt of money by Lessor from Lessee or
any other person after termination of this Lease or after the service of
any notice or after the commencement of any suit, or after final judgment
for possession of the Premises shall reinstate, continue or extend the term
of this Lease or affect any such notice, demand or suit, or imply consent
for any action for which Lessor's consent is required, unless specifically
agreed to in writing by Lessor. Any amounts received by Lessor may be
allocated to any specific amounts due from Lessee to Lessor as Lessor
determines.
X. Xxxxxx shall have the right to close any portion of the building area or
land area to the extent as may, in Lessor's reasonable opinion, be
necessary to prevent a dedication thereof or the accrual of any rights to
any person or the public therein. Lessor shall at all times have full
control, management and direction of the Office/Warehouse Complex, subject
to the rights of Lessee in the Premises, and Lessor reserves the right at
any time and from time to time to reduce, increase, enclose or otherwise
change the size, number and location of buildings, layout and nature of the
Office/Warehouse Complex and the other tenancies, premises and buildings
included in the Office/Warehouse Complex, to construct additional buildings
and additions to any building, and to create additional rentable areas
through use and/or enclosure of common areas, or otherwise, and to place
signs on the Office/Warehouse Complex, and to change the name, address,
number or designation by which the Office/Warehouse Complex is commonly
known. No implied easements are granted by this Lease. Lessor shall in no
event be liable for any lack of security in respect to the Office/Warehouse
Complex. Notwithstanding the above provisions of this Paragraph M, Lessor
shall not take action under this Paragraph M which would materially
adversely affect Lessee's rights to use the Premises granted herein or
Lessee's parking rights or access to the Premises.
N. Lessee shall permit Lessor (or its designees) to erect, use, maintain,
replace and repair pipes, cables, conduits, plumbing, vents, and telephone,
electric and other wires or other items, in, to and through the Premises,
as and to the extent that Lessor may now or hereafter deem necessary or
appropriate for the proper operation and maintenance of the
Office/Warehouse Complex.
O. Employees or agents of Lessor have no authority to make or agree to make a
lease or other agreement or undertaking in connection herewith. The
submission of this document for examination does not constitute an offer to
lease, or a reservation of, or option for, the Premises. This document
becomes effective and binding only upon the execution and delivery hereof
by the proper officers of Lessor and by Lessee. Lessee confirms that Lessor
and its agents have made no representations or promises with respect to the
Premises or the making of or entry into this Lease except as in this Lease
expressly set forth, and agrees that no claim or liability shall be
asserted by Lessee against Lessor for, and Lessor shall not be liable by
reason of, breach of any representations or promises not expressly stated
in this Lease. This Lease, except for
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the Building Rules and Regulations, in respect to which subparagraph P of
this Article shall prevail, can be modified or altered only by agreement in
writing between Lessor and Lessee, and no act or omission of any employee
or agent of Lessor shall alter, change or modify any of the provisions
hereof.
P. Lessee shall perform, observe and comply with the Building Rules and
Regulations of the Office/Warehouse Complex attached hereto as Exhibit B
and made a part hereof, with respect to the safety, care and cleanliness of
the Premises and the Office/Warehouse Complex, and the preservation of good
order thereon, and, upon written notice thereof to Lessee, Lessee shall
perform, observe, and comply with any reasonable changes, amendments or
additions thereto as from time to time shall be established and deemed
advisable by Lessor for tenants of the Office/Warehouse Complex. Lessor
shall not be liable to Lessee for any failure of any other tenant or
tenants of the Office/Warehouse Complex to comply with such Building Rules
and Regulations.
Q. All rights and occupancy of Lessee herein shall be subject to all
governmental laws, ordinances and regulations, and Lessee shall comply with
the same.
R. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including,
without limitation, all payment obligations with respect to Operating
Expenses and Real Estate Taxes and all obligations concerning the condition
of the Premises.
S. Any claim which Lessee may have against Lessor for default in performance
of any of the obligations herein contained to be kept and performed by
Lessor shall be deemed waived unless such claim is asserted by written
notice thereof to Lessor within ten (10) days of commencement of the
alleged default or of accrual of the cause of action and unless suit be
brought thereon within six (6) months subsequent to the accrual of such
cause of action. Furthermore, Lessee agrees to look solely to Lessor's
interest in the Office/Warehouse Complex for the recovery of any judgment
from Lessor, it being agreed that Lessor, or if Lessor is a partnership,
its partners whether general or limited, or if Landlord is a corporation,
its directors, officers or shareholders, shall never be personally liable
for any such judgment.
T. Lessee shall furnish to Lessor promptly upon demand, a corporate
resolution, proof of due authorization of partners, or other appropriate
documentation reasonably requested by Lessor evidencing the due
authorization of Lessee to enter into this Lease.
U. This Lease shall not be deemed or construed to create or establish any
relationship or partnership or joint venture or similar relationship or
arrangement between Lessor and Lessee hereunder.
ARTICLE XVIII. (DELETED BY INTENT OF THE PARTIES)
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ARTICLE XIX. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all
taxes assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises, and when possible, Lessee shall cause such trade
fixtures, furnishings, equipment and other personal property to be assessed and
billed separately from the property of Lessor. In the event any or all of
Lessee's trade fixtures, furnishings, equipment or other personal property, or
Lessee's occupancy of the Premises, shall be assessed and taxed with the
property of Lessor, Lessee shall pay to Lessor its share of such taxes within
ten (10) days after delivery to Lessee by Lessor of a statement in writing
setting forth the amount of such taxes applicable to Lessee's personal property.
ARTICLE XX. OTHER PROVISIONS: The following are made a part hereof, with the
same force and effect as if specifically set forth herein:
1. Floor Plan - Exhibit A.
2. Building Rules and Regulations - Exhibit B.
3. Rider to Lease - Exhibit C.
4. Lessor's Tenant Sign Criteria - Exhibit D.
5. Subordination, Non-Disturbance and Attornment Agreement - Exhibit E-l.
6. Subordination, Non-Disturbance and Attornment Agreement - Exhibit E-2.
7. List of Tenant Improvement Plans and Specifications - Exhibit F.
8. Form of Assignment and Assumption of Lease and Consent and Release
Agreement- Exhibit G.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
OPUS NORTHWEST, L.L.C. CHIEF MANUFACTURING, INC.
(LESSOR) (LESSEE)
By /s/ Xxxxxxx X. Xxxxxxx By /s/ ILLEGIBLE
---------------------------------- ------------------------------------
Its Xxxxxxx X. Xxxxxxx Its PRESIDENT
Vice President, General Manager
Real Estate Development
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EXHIBIT A
(FLOOR PLAN)
EXHIBIT B
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or in
any part of the Premises and visible from the exterior of the Office/Warehouse
Complex, or visible from the exterior of the Premises, shall be installed at
Lessee's sole cost and expense, and in such manner, character and style as
Lessor may approve in writing. Anything herein to the contrary notwithstanding,
approval as to signs shall be subject to Lessor's approval which may be withheld
in Lessor's sole discretion. In the event of a violation of the foregoing by
Lessee, Lessor may remove the same without any liability and may charge the
expense incurred by such removal to Lessee.
2. No awning or other projection shall be attached to the outside walls of
the Office/Warehouse Complex. No curtains, blinds, shades or screens visible
from the exterior of the Office/Warehouse Complex or visible from the exterior
of the Premises, shall be attached to or hung in, or used in connection with any
window or door of the Premises without the prior written consent of Lessor. Such
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in the manner approved by Lessor.
3. Lessee, its servants, employees, customers, invitees and guests shall
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls, or
stairways in and about the Office/Warehouse Complex which are used in common
with other tenants and their servants, employees, customers, guests and
invitees, and which are not a part of the Premises of Lessee. Lessee shall not
place objects against glass partitions or doors or windows which would be
unsightly from the Office/Warehouse Complex corridors or from the exterior of
the Office/Warehouse Complex and will promptly remove any such objects upon
notice from Lessor.
4. Lessee shall not make noises, or cause disturbances or vibrations or use
or operate any electrical or mechanical devices that emit excessive sound or
other waves or disturbances or create obnoxious odors any of which would
unreasonably disturb other tenants or constitute a nuisance or violate any other
tenant's right to quiet enjoyment, or that would interfere with the operation of
any device, equipment, radio, television broadcasting or reception from or
within the Office/Warehouse Complex or elsewhere and shall not place or install
any projections, antennas, aerials or similar devices inside or outside of the
Premises or on the Office/Warehouse Complex.
5. Lessee shall not waste electricity, water or air conditioning furnished
by Lessor, if any, and shall cooperate fully with Lessor to insure the most
effective operation of the Office/Warehouse Complex's heating and air
conditioning systems.
6. Lessee assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured after normal business hours.
7. In no event shall Lessee bring into the Office/Warehouse Complex
inflammables, such as gasoline, kerosene, naphtha and benzene, or explosives or
any other article of intrinsically dangerous nature. If, by reason of the
failure of Lessee to comply with the provisions of this subparagraph, any
insurance premium for all or any part of the Office/Warehouse Complex shall at
any time be increased, Lessee shall make immediate payment of the whole of the
increased insurance premium, without waiver of any of Lessor's other rights at
law or in equity for Lessee's breach of this Lease.
8. Lessee shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or which may be dangerous to persons or property or may increase the
cost of insurance or require additional insurance coverage.
9. Lessor shall have the right to prohibit any advertising by Lessee which
in Lessor's reasonable opinion tends to impair the reputation of the
Office/Warehouse Complex or its desirability as an office/warehouse complex for
office/warehouse use, and upon written notice from Lessor, Lessee shall refrain
from or discontinue such advertising.
10. The Premises shall not be used for cooking (as opposed to heating of
food), lodging, sleeping or for any immoral or illegal purpose.
11. Lessee and Lessee's servants, employees, agents, visitors and licensees
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further appropriate rules and regulations as
Lessor or Lessor's agent may from time to time adopt. Reasonable notice of any
additional rules and regulations shall be given in such manner as Lessor may
reasonably elect.
12. Except as expressly permitted by Lessor in Article VII(C), no
additional locks or similar devices shall be attached to any door or window and
no keys other than those provided by Lessor shall be made for any door. If more
than two keys for one lock are desired by Lessee, Lessor may provide the same
upon payment by Lessee. Upon termination of this Lease or of Lessee's
possession, Lessee shall surrender all keys of the Premises and shall explain to
Lessor all combination locks on safes, cabinets and vaults.
13. Any carpeting cemented down by Lessee shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Lessee,
Lessor may charge the expense incurred by such removal to Lessee.
14. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by Lessee who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same. No person shall waste water by
interfering or tampering with the faucets or otherwise.
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15. No electric circuits for any purpose shall be brought into the leased
Premises without Lessor's written permission specifying the manner in which same
may be done. Lessee shall not overload any utilities serving the Premises.
16. No bicycle or other vehicle, and no dog or other animal shall be
allowed in the Office/Warehouse Complex.
17. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryways provided for
such purposes. Lessee shall be responsible for any damage to the
Office/Warehouse Complex or the property of its employees or others and injuries
sustained by any person whomsoever resulting from the use or moving of such
articles in or out of the Premises, and shall make all repairs and improvements
required by Lessor or governmental authorities in connection with the use or
moving of such articles.
18. All safes, equipment or other heavy articles shall be carried in or out
of the Premises only in such manner as shall be prescribed in writing by Lessor,
and Lessor shall in all cases have the right to specify the proper position of
any such safe, equipment or other heavy article, which shall only be used by
Lessee in a manner which will not interfere with or cause damage to the Premises
or the Office/Warehouse Complex in which they are located, or to the other
tenants or occupants of said Office/Warehouse Complex. Lessee shall be
responsible for any damage to the Office/Warehouse Complex or the property of
its employees or others and injuries sustained by any person whomsoever
resulting from the use or moving of such articles in or out of the Premises, and
shall make all repairs and improvements required by Lessor or governmental
authorities in connection with the use or moving of such articles.
19. Canvassing, soliciting, and peddling in or about the Office/Warehouse
Complex is prohibited and each Lessee shall cooperate to prevent the same.
20. Wherever in these Building Rules and Regulations the word "Lessee"
occurs, it is understood and agreed that it shall mean Lessee's associates,
employees, agents, clerks, servants, invitees and visitors. Wherever the word
"Lessor" occurs, it is understood and agreed that it shall mean Lessor's
assigns, agents, clerks, servants, and visitors.
21. Lessor shall have the right to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same.
22. Lessor shall have the right to enter the Premises at hours convenient
to Lessee for the purpose of exhibiting the same to prospective tenants within
the nine (9) month period prior to the expiration of this Lease, and may place
signs advertising the Premises for rent on the exterior of said Premises at any
time within said nine (9) month period.
23. Lessee, its servants, employees, customers, invitees and guests shall,
when using the common parking facilities, if any, in and around the
Office/Warehouse Complex,
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observe and obey all signs regarding fire lanes and no parking zones, and when
parking always park between the designated lines. Lessor reserves the right to
tow away, at the expense of the owner, any vehicle which is improperly parked or
parked in a no parking zone. All vehicles shall be parked at the sole risk of
the owner, and Lessor assumes no responsibility for any damage to or loss of
vehicles. No vehicles shall be parked overnight.
24. In case of invasion, mob, riot, public excitement, or other commotion,
Lessor reserves the right to prevent access to the Office/Warehouse Complex
during the continuance of the same by closing the doors or otherwise, for the
safety of the tenants or the protection of the Office/Warehouse Complex and the
property therein. Lessor shall in no case be liable for damages for any error or
other action taken with regard to the admission to or exclusion from the
Office/Warehouse Complex of any person.
25. All entrance doors to the Premises shall be locked when the Premises
are not in use. All common corridor doors, if any, shall also be closed during
times when the air conditioning equipment in the Office/Warehouse Complex is
operating so as not to dissipate the effectiveness of the system or place an
overload thereon.
26. Lessor reserves the right at any time and from time to time to rescind,
alter or waive, in whole or in part, any of these Rules and Regulations when it
is deemed necessary, desirable, or proper, in Lessor's judgment, for its best
interest or for the best interest of the tenants of the Office/Warehouse
Complex.
Initials:
Lessor /s/ ILLEGIBLE
---------------------------------
Lessee /s/ ILLEGIBLE
---------------------------------
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EXHIBIT C
RIDER TO OFFICE/WAREHOUSE LEASE
ARTICLE XXI. LOCK BOX: Lessor may from time to time designate a lock box
collection agent for the collection of rents or other charges due Lessor. In
such event, the payment made by Lessee to the lock box shall be deemed to have
been made by Lessee as of the date of receipt by the lock box collection agent
of such payment (or the date of collection of any such sum if payment is made in
the form of a negotiable instrument thereafter dishonored upon presentment);
however, for the purpose of this Lease, no such payment or collection shall be
deemed a waiver by Lessor of any breach by Lessee of any term, covenant or
condition of this Lease nor a waiver of any of Lessor's rights or remedies and
any payments of amounts other than that deemed due and proper by Lessor shall
not prejudice Lessor in any manner nor constitute a waiver and Lessor shall
hereby be authorized to retain the proceeds of any payments by Lessee, whether
restrictively endorsed or otherwise, and apply same to the amounts due and
payable from Lessee under this Lease without waiver.
ARTICLE XXII. PRIOR PROPOSALS: All prior proposals between Lessor and Lessee in
connection with this Lease are hereby terminated.
ARTICLE XXIII. SEPARATE METERING OF UTILITIES: Notwithstanding anything
contained in Article II ("Additional Rent") hereof to the contrary, all
electricity and gas used in the Premises and for heat, light and power for the
Premises shall be separately contracted for, metered and paid for directly by
Lessee upon receipt of invoice. Further, the cost of all electricity and gas
used in all rentable areas of the Office/Warehouse Complex shall not be included
in "Operating Expenses"; provided, however, the cost of all other electricity
and gas, including, but not limited to, electricity for common building systems,
common building equipment and lighting for common areas, shall be included in
"Operating Expenses." Lessee agrees to refrain from overloading the electrical
system designed for the Premises. All electric lighting bulbs and tubes and all
ballasts and starters within the Premises shall be replaced by Lessee at the
expense of Lessee.
Notwithstanding the foregoing, in the event that a utility to be separately
metered is actually metered over an area other than only the Premises, then, in
such event, Lessor shall make an appropriate equitable adjustment and Lessee
shall pay its share as so equitably and reasonably determined by Lessor. Should
any such allocation be or become unfair or unreasonable to Lessor or Lessee by
reason of part of the Office/Warehouse Complex which is served by said utility
meter being or becoming vacant or by reason of disproportionate use by the
applicable tenants or the fact that part of the Office/Warehouse Complex which
is served by such meter is being utilized at other than normal business hours or
otherwise, Lessor may reasonably apportion such utility charges to Lessee and to
other areas of the Office/Warehouse Complex served through such meter, which
apportionment shall then become the basis for charges to be paid by Lessee.
ARTICLE XXIV. HAZARDOUS MATERIALS: Lessee shall not bring any materials onto the
Property or allow under its authority any materials to be brought onto the
Property which are so-called "Hazardous Waste" or "Hazardous Materials" under
federal or state environmental laws or which would subject Lessor or Lessee to
liability for clean-up or other damages if such were spilled, released or
disposed of (through storm sewers or otherwise) on the Property except for
normal office chemicals such as copier toner kept in legal and proper
containers. To the best of Lessor's knowledge, the Property does not currently
contain any "Hazardous Waste" or "Hazardous Materials" as described above.
Lessee shall at all times and in all respects comply with all federal,
state and local laws, ordinances and regulations ("Hazardous Materials Laws")
relating to the industrial hygiene, environmental protection or the use,
analysis, generation, manufacture, storage, presence, disposal or transportation
of any oil, flammable explosives, asbestos, urea formaldehyde, polychlorinated
biphenyls, radioactive materials or waste, or other hazardous toxic,
contaminated or polluting materials, substances or wastes, including without
limitation any "hazardous substances," "hazardous wastes," "hazardous materials"
or "toxic substances" under any such laws, ordinances or regulations
(collectively, "Hazardous Materials").
Lessee shall at its own expense procure, maintain in effect and comply with
all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Lessee's use of the Premises, including,
without limitation, discharge of (appropriately treated) materials or waste into
or through any sanitary sewer system serving the Premises. Except as discharged
into the sanitary sewer in strict accordance and conformity with all applicable
Hazardous Materials Laws, Lessee shall cause any and all Hazardous Materials to
be removed from the Premises and transported solely by duly licensed haulers to
duly licensed facilities for final disposal of such Hazardous Materials and
wastes. Lessee shall in all respects handle, treat, deal with and manage any and
all Hazardous Materials in, on, under or about the Premises in complete
conformity with all applicable Hazardous Materials Laws and prudent industry
practices regarding the management of such Hazardous Materials. All reporting
obligations imposed by Hazardous Materials Laws are solely the responsibility of
Lessee. Upon expiration or earlier termination of this Lease, Lessee shall cause
all Hazardous Materials to be removed from the Premises and transported for use,
storage or disposal in accordance with and in complete compliance with all
applicable Hazardous Materials Laws. Lessee shall not take any remedial action
in response to the presence of any Hazardous Materials in, on, about or under
the Premises or in any Improvement situated on the Land, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected with the
Premises or the Improvements on the Land without first notifying Lessor of
Lessee's intention to do so and affording Lessor ample opportunity to appear,
intervene or otherwise appropriately assert and protect Lessor's interest with
respect thereto. In addition, at Lessor's request, Lessee shall remove all tanks
or fixtures which contain or contained or are contaminated with Hazardous
Materials.
If Lessor has reason to believe that unauthorized Hazardous Materials may
exist on or in respect to the Premises, or that Hazardous Materials may have
been spilled or disposed of or treated or handled in violation of the provisions
hereof, Lessor shall have the right to require
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Lessee to undertake and submit to Lessor an environmental audit from an
environmental company reasonably acceptable to Lessor, which audit shall
evidence Lessee's compliance with this provision. Lessor may, at its expense,
commission an environmental audit of the Premises at any time after prior
written notice to Lessee.
Anything in this Article XXIV to the contrary notwithstanding, the
provisions of this Article shall only apply to hazardous materials and waste
brought onto the Office/Warehouse Complex by Lessee, its agents, employees,
contractors, licensees, and invitees.
ARTICLE XXV. SIGNAGE: Provided Lessee receives all necessary governmental and
quasi-governmental approvals therefor, Lessor shall allow Lessee to erect a sign
on the exterior of the Office/Warehouse Complex. Such sign shall be Lessee's
"name", shall be subordinate in size to Lessor's building designation sign and
shall be subject to the reasonable approval of Lessor as to location, size,
graphics, color(s), and style pursuant to Lessor's Tenant Sign Criteria, a copy
of which is attached hereto as Exhibit D and made a part hereof. Lessee shall
pay all costs of installation and maintenance of such sign and shall keep such
sign in good condition, order and repair at its sole cost and expense, shall
remove such sign prior to termination of the term of this Lease and shall repair
and restore any damage to the Office/Warehouse Complex caused by such
installation and/or removal. Any such sign shall be subject to the terms of any
restrictive covenants recorded in connection with the Property and all
applicable laws, ordinances and regulations.
ARTICLE XXVI. SECURITY DEPOSIT: Lessee hereby deposits with Lessor the sum of
Two Hundred Thousand and 00/100 Dollars ($200,000.00) in cash or in the form of
an irrevocable, unconditional letter of credit issued by a national banking
association or other financial institution reasonably acceptable to Lessor,
containing such terms and conditions as Lessor may reasonably require, the
receipt of which is hereby acknowledged, as and for a security deposit for the
full and faithful performance by Lessee of each and every term, covenant and
condition of this Lease. In the event that Lessee defaults in respect to any of
the terms, provisions, covenants and conditions of this Lease, including, but
not limited to, the payment of any rentals or other charges or items to be paid
or provided for by Lessee, Lessor may use, apply or retain the whole or any part
of the security so deposited for the payment of any such rentals in default or
for any other sum which Lessor may expend or be required to expend by reason of
Lessee's default, including, but not limited to, any damages or deficiency in
the reletting of the Premises, whether such damages or deficiency may accrue
before or after reentry by Lessor. Lessee shall not be entitled to any interest
on the security deposit. It is expressly understood and agreed that such deposit
is not an advance rental deposit or a measure of Lessor's damages in case of
Lessee's default. Upon application of any part of the deposit by Lessor as
provided herein, Lessee shall pay to Lessor on demand the amount so applied in
order to restore the security deposit to its original amount. Any application of
the deposit by Lessor shall not be deemed to have cured Lessee's default by
reason of which the application is made.
In the event of a bona fide sale of the building of which the Premises are
a part, Lessor shall have the right to transfer the security deposit to its
vendee for the benefit of Lessor and thereafter Lessor shall be released of all
liability for the return of such deposit and Lessee agrees
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to look to said vendee for the return of its security deposit. It is agreed that
this provision shall apply to every transfer or assignment made of the security
deposit to any new landlord.
This security deposit shall not be assigned or encumbered by Lessee. It is
expressly understood that the reentry of the Premises by Lessor for any default
on the part of Lessee prior to such expiration of the term of this Lease shall
not be deemed a termination of this Lease so as to entitle Lessee to recover the
security deposit, and the security deposit shall be maintained by Lessee and
retained and remain in the possession of Lessor until the date 60 days after the
end of the term of this Lease.
Actions by Lessor against Lessee for breach of this Lease shall in no way
be limited or restricted by the amount of this security deposit and resort to
such deposit shall not waive any other rights or constitute an election of
remedies which Lessor may have.
In the event Lessee provides Lessor with a letter of credit as above
provided, such letter of credit shall be renewed for at least a one-year period
at least sixty (60) days prior to the expiration of the letter of credit then
held by Lessor under this Article XXVI.
If Lessee has not defaulted in its obligations under this Lease, the
deposit required herein shall be reduced by $40,000.00 after each anniversary of
the commencement date of the initial Lease term.
ARTICLE XXVII. FINANCIAL STATEMENTS: Upon request by Lessor at any time in
connection with any proposed sale or financing of the Office/Warehouse Complex
(but Lessor may request same no more than twice in any calendar year), Lessee
shall deliver to Lessor (within fifteen [15] days after receipt of written
request) a complete copy of its most recent audited financial statements (in
accordance with generally accepted accounting principles ("GAAP") consistently
applied), including, but not limited to, its balance sheet, statement of income,
note to its financial statements, and the certification of its auditor as to the
same, and similar financial statements of any person or party liable for
Lessee's obligations under this Lease. If audited statements are not available,
Lessee shall provide such statements certified by Lessee's chief financial
officer as having been prepared in accordance with GAAP consistently applied.
The provisions of this Article shall not apply as to any company's statements
required to be provided so long as such company is a "reporting company" under
the Securities Exchange Act of 1934, as amended. Lessor agrees to treat such
financial statements as confidential information, treating same in the same
fashion as it treats its own confidential information. Lessor agrees to refrain
from disclosing such financial statements to third parties unless such third
parties agree to the same confidentiality provisions as applied to Lessor.
ARTICLE XXVIII. PARKING RIGHTS OF LESSEE: Lessee shall have the right in common
with other tenants to have the use for its employees and invitees of two hundred
sixty-two (262) parking spaces in the common parking facilities (exclusive of
"handicapped" stalls which shall be open for all those legally permitted to use
same) at the Office/Warehouse Complex, such use to be in common with the other
tenants in the Office/Warehouse Complex. Lessor reserves the right to designate
areas of the appurtenant common parking facilities where
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Lessee, its agents, employees and invitees shall park and may exclude Lessee,
its agents, employees and invitees from parking in other areas as designated by
Lessor; provided, however, Lessor shall not be liable to Lessee for the failure
of any tenant, its invitees, employees, agents and customers to abide by
Lessor's designations or restrictions. Lessor shall have the right to designate
and Lessee shall thereupon have the right to use two hundred sixty-two (262)
designated parking spaces as the exclusive parking spaces to be used by Lessee,
its agents and employees. Lessee, its agents, employees and invitees shall not
use more (in absolute numbers) of the common parking facilities at the
Office/Warehouse Complex than Lessee could use if Lessor made the designations
permitted herein. Notwithstanding anything contained in this Lease to the
contrary, all costs and expenses of such special parking control, signs in
connection therewith, and costs of any enforcement shall be an Operating Expense
pursuant to the provisions of Article II hereof. Lessee shall pay all reasonable
costs and expenses in connection with signs or traffic control devices for
Lessee's exclusively designated parking area.
ARTICLE XXIX. NET RENT PROHIBITION: The provisions of the Lease to the contrary
notwithstanding, for such period as Teachers Insurance and Annuity Association
of America ("Teachers") shall be the holder of a mortgage or deed of trust
placed upon the Premises or Office/Warehouse Complex, the following provisions
shall apply:
(a) Base Rent and Additional Rent will not be based in whole or in part on
the income or profits derived from the Premises;
(b) If Teachers, as the holder of a mortgage or deed of trust upon the
Premises or the Office/Warehouse Complex, succeeds to the Lessor's
interest under the Lease and is advised by its counsel that all or any
portion of the Base Rent or Additional Rent payable under the Lease is
or may be deemed to be unrelated business income within the meaning of
the Internal Revenue Code of 1986 or regulations issued thereunder,
Lessee shall cooperate with Teachers to amend the calculation of Base
Rent or Additional Rent as reasonably necessary so that none of the
Base Rent or Additional Rent payable to Teachers under the Lease will
constitute unrelated business income, provided, however, such
amendment will not increase Lessee's payment obligations or other
liability under the Lease or reduce the Lessor's obligations under the
Lease; and
(c) If the provisions of subsection (b) above apply, and if Teachers
requests, the Lessee agrees to execute any document Teachers request
which is reasonably necessary to effect such amendment of the Lease.
Lessee acknowledges the foregoing and agrees to incorporate the foregoing
provisions in any sublease of all or any portion of the Premises so that such
provisions apply in the same manner to any sublease of all or any portion of the
Premises as they apply to the Lease of the Premises.
ARTICLE XXX. TENANT IMPROVEMENTS: Lessor and Lessee understand and agree that
the Premises is being leased in its "as is" condition, except that Lessor is
providing a tenant improvement allowance of Nine Hundred Sixty-Three Thousand
Three Hundred Sixty-Eight and
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00/100 Dollars ($963,368.00) to Lessee for improvements to be made to the
Premises. All Lessee Authorized Work (as hereafter defined) to the existing
Premises will be so-called "Lessee Improvements" and, except as otherwise
provided herein, shall be installed by Lessor but to be selected by Lessee and
paid for by Lessee subject to Lessor providing an allowance in the aforesaid
amount. In the event Lessee desires any Lessee Improvements having a price in
excess of the allowance and Lessor agrees to the price and terms relating to
same, Lessee shall pay such excess in cash to Lessor within 30 days after
substantial completion or as otherwise agreed by Lessor and Lessee. If the final
amount of the overage is not known at the date 30 days after substantial
completion, Lessee will pay at such time the amount of the overage as reasonably
by Lessor and an adjustment shall be made between the parties when final amounts
are determined. Lessee hereby authorizes Lessor to proceed with final design and
construction of the improvements contemplated by the plans and specifications
listed on Exhibit F attached hereto and incorporated herein by reference (the
"Lessee Authorized Work"). Final plans and specifications shall be subject to
Lessee's approval, which shall not unreasonably be withheld or delayed. Such
Final plans and specifications shall be approved if they are a reasonable
development of the plans and specifications listed on Exhibit F. Lessee shall
approve or disapprove the respective final plans and specifications within 3
business days after receipt from Lessor. The parties acknowledge such final
plans and specifications will be submitted serially for approval and not as one
complete package. All decorator elections (such as paint, wallcovering and
carpet) shall be delivered to Lessor by Lessee on or before January 28, 2004.
Lessee shall be responsible for costs (including lost rent) arising out of
delays in completion of Lessee Improvements to the extent caused by Lessee's
failure to comply with the above requirements.
In both the design and construction of the Lessee Improvements, Lessor
shall be responsible for full compliance of the Lessee Improvements with the
accessibility requirements of Title III of the current (as of the date of this
agreement) applicable provisions of the Americans with Disabilities Act of 1990
(ADA) in accordance with Lessee's current understanding thereof and as currently
enforced by the building code officials in respect to the Lessee Improvements.
All compliance with ADA as it relates to Lessee's operations within the Premises
and Lessee's separate work shall be Lessee's responsibility.
Further, Lessor shall not have responsibility for code compliance matters
necessitated by work of Lessee or its separate contractors or installations
which are not part of the Lessee Improvements.
It is understood and agreed that Lessor will be installing all of the
Lessee Authorized Work and the price charged therefor shall be all direct and
indirect costs (including design and general conditions costs) plus six percent
(6%) for the Lessor's administration fee in connection with such work. The
following work in respect to the Lessee Improvements shall be submitted to the
trades for bidding with subcontractors reasonably acceptable to Lessor;
provided, however, subcontracts will be awarded to those responsible bidders
whose proposals are deemed by Lessor and the general contractor to be most
advantageous with price, delivery and performance being among determining
factors, and the Lessor and the general contractor shall have the right to
reject any or all bids:
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ARTICLE XXXIV. RIGHT OF FIRST OFFER: Lessor agrees that all of the space in the
Office/Warehouse Complex other than the Premises (hereinafter the "ROFO Space")
shall be subject to the provisions of this Article XXXIII. In the event Lessor
becomes aware of a third party having a bona fide interest in leasing all or any
part of the ROFO space (other than any then existing tenant or its assigns)
during the initial term of this Lease, Lessor shall deliver to Lessee written
notice that Lessor expects such ROFO Space to be available for lease. Such
information shall be held in confidence by Lessee and used only to determine
whether Lessee desires to lease additional space in the Office/Warehouse
Complex. The purpose of this paragraph is to provide notice to Lessee so that
Lessee may be in a position to offer to lease such vacant space, or to be vacant
space, on a competitive basis with others. In no event shall the provisions of
this Article XXXIII be deemed to be a right of first refusal or an option to
expand the Premises. In the event Lessor and Lessee have failed to enter into an
agreement in respect to the space described in Lessor's notice on or before the
date five (5) business days after such notice, all of such ROFO space shall
thereafter be free of all restrictions, limitations and rights of Lessee under
this Lease.
ARTICLE XXXV. EARLY ACCESS: Subject to the other provisions in this Article
XXXV, Lessor will cooperate with Lessee to allow Lessee to enter the Premises
prior to substantial completion of the Lessee Improvements solely for the
purposes of installing furniture, inventory, equipment, fixtures, and
communication wiring and cables; provided, however, said early occupancy shall
be allowed subject to the following conditions and only if Lessee complies with
the following requirements:
1. Lessee is subject to all the terms, conditions, and covenants of this
Lease, including specifically Article X ("Insurance") hereof, except for
the obligations under Articles I and II hereof as to the payment of Base
Rent and Additional Rent, until such rent commences pursuant to the other
provisions herein and except as to Articles IV, V, XXIII, and the first two
sentences of Article IX until commencement of the term of this Lease.
2. Lessee agrees that it shall not in any way interfere with Lessor's ongoing
tenant improvement work in the Premises, if any; in the event Lessee does
interfere, any delay caused by said interference shall excuse Lessor's
delivery of the Premises as required in this Lease for a period equal to
the period of delay caused by Lessee and Lessee shall pay Lessor all of its
reasonable costs arising out of delay including lost rents.
3. Lessor shall have no responsibility to deliver a Certificate of Occupancy
for the Premises prior to the substantial completion of the Premises.
ARTICLE XXXVI. Lessee shall have the right, to be exercised as hereinafter
provided, to extend the term of this Lease for one (1) period of five (5) years,
on the following terms and conditions and subject to the limitations hereinafter
set forth, such five (5) year extension period being in this Lease sometimes
referred to as the "Renewal Term."
(a) That at the time hereinafter set forth for the exercise of the renewal
option, this Lease shall be in full force and effect and Lessee shall
not be in default in the
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performance of any of the terms, covenants and conditions herein
contained in respect to a matter as to which notice of default has
been given hereunder which has not been remedied within the time
limited in this Lease, but Lessor shall have the right, at its sole
discretion, to waive the non-default conditions herein.
(b) That the Renewal Term shall be upon the same terms, covenants and
conditions as in this Lease provided; provided, however, the annual
Base Rent for the Renewal Term shall be the fair market Base Rent rate
for such space on the date such Renewal Term shall commence in
relation to comparable (in quality and location) space located in the
Minneapolis/St. Xxxx suburban area. The fair market Base Rent for the
Premises shall be determined as of the date eleven (11) months prior
to commencement of the Renewal Term. Provided Lessee has properly
elected to renew the term of this Lease, and if Lessor and Lessee fail
to agree to least eleven (11) months prior to commencement of the
Renewal Term upon the fair market Base Rent of the Premises, the
amount of the fair market Base Rent of the Premises shall be
determined by arbitration in accordance with the provisions of Article
XXXVII hereof. The fair market Base Rent of the Premises shall be
based upon the highest and best use of the Premises. In no event shall
the Base Rent of the Premises for the Renewal Term be less than the
Base Rent rate payable (absent temporary abatements) by Lessee
immediately prior to commencement of the Renewal Term.
(c) That Lessee shall exercise its rights to extend the term of this Lease
for the Renewal Term by notifying Lessor, in writing, of its election
to exercise the right to renew and extend the term of this Lease no
later than April 30, 2008. Upon notification with respect to such
renewal, and for a period of thirty (30) days thereafter, the parties
hereto shall make a good faith effort to agree upon the fair market
Base Rent of the Premises for such Renewal Term. In the event that
Lessor and Lessee fail to agree within the thirty (30) day time period
set forth in this subparagraph (c), the fair market Base Rent of the
Premises for such Renewal Term shall be determined by Arbitration in
the manner set forth in Article XXXVII ("Arbitration") hereof.
However, such arbitrators shall be directed to determine the fair
market Base Rent for the Premises as above provided and in determining
the same said appraisers shall be instructed to make said appraisal
independently, without consulting with each other. Any determination
by arbitration or any agreement reached by the parties hereto with
respect to such fair market Base Rent and resulting Base Rent of the
Premises for such Renewal Term shall be expressed in writing and shall
be executed by the parties hereto, and a copy thereof delivered to
each of the parties.
ARTICLE XXXVII. ARBITRATION: Any disagreement, dispute or determination required
by or arising under the provisions of XXXVI of this Lease requiring arbitration
shall be carried on and concluded in accordance with the provisions of
paragraphs (a) and (b) hereof.
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(a) In each case where it shall become necessary to resort to arbitration,
and the subject of the arbitration is to determine fair market Base
Rent, all arbitrators appointed by or on behalf of either party or
appointed pursuant to the provisions hereof shall be MAI members of
the American Institute of Real Estate Appraisers with not less than
ten (10) years of experience in the appraisal of improved commercial
and industrial real estate in the Minneapolis, Minnesota metropolitan
area and be devoting substantially all of their time to professional
appraisal work at the time of appointment and be in all respects
impartial and disinterested.
(b) The party desiring such arbitration shall give written notice to that
effect to the other party, specifying in such notice the name, address
and professional qualifications of the person designated to act as
arbitrator on its behalf. Within twenty (20) days after service of
such notice, the other party shall give written notice to the party
desiring such arbitration specifying the name, address and
professional qualifications of the person designated to act as
arbitrator on its behalf. If the two (2) arbitrators so selected
cannot agree within fifteen (15) days after the appointment of the
second arbitrator, the two (2) arbitrators shall, within ten (10) days
thereafter, select a third arbitrator. The decision of the arbitrators
so chosen shall be given within a period of thirty (30) days after the
appointment of such third arbitrator. Each party shall pay the fees
and expenses of the arbitrator appointed by or on behalf of such party
and the fees and expenses of the third arbitrator shall be borne
equally by both parties. If the party receiving a request for
arbitration fails to appoint its arbitrator within the time above
specified, or if the two (2) arbitrators so selected cannot agree on
the selection of the third arbitrator within the time above specified,
then either party, on behalf of both parties, may request such
appointment of such second or third arbitrator, as the case may be, by
application to any Judge of the District Court of the County of Xxxxx,
State of Minnesota, upon ten (10) days prior written notice to the
other party of such intent. The arbitrators so selected shall have all
rights and powers conferred on them by the Uniform Arbitration Act of
the state in which the Premises are situated, and except as otherwise
provided for herein, the arbitration proceedings shall be carried on
and governed by such Act. Upon an established date at an established
time, all three (3) arbitrators shall simultaneously submit their
determinations as to fair market Base Rent, such determinations to be
submitted in sealed envelopes and to be opened jointly by Lessor and
Lessee. The fair market Base Rent for the Renewal Term shall be
determined by averaging the two (2) arbitrators' fair market Base Rent
determinations which are closest in amount to each other (or if one
appraisal is less than one of the other appraisals and more than the
other appraisal by the same amount, all three appraisals shall be
averaged).
ARTICLE XXXVIII. BASE RENT ESCALATION. Notwithstanding anything contained in
Article I ("Base Rent") hereof to the contrary, Base Rent payable by Lessee to
Lessor for the initial Premises shall escalate on the following date to the
following amount:
May 1, 2006 - Six Hundred Forty Thousand Nine Hundred Eighty-Nine and 40/100
Dollars ($640,989.40) per annum, payable monthly, in advance, in
equal installments of Fifty-Three Thousand Four Hundred Fifteen
and 78/100 Dollars ($53,415.78).
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ARTICLE XXXIX. RENT ABATEMENT: Base Rent otherwise payable herein for the period
from May 1, 2004 through April 30, 2005 shall be abated by $15,173.08 per month.
Base Rent otherwise payable herein for the period from May 1, 2005 through April
30, 2006 shall be abated by $9,235.58 per month. Further, for the period from
May 1, 2004 through April 30, 2005, Lessee's Pro Rata Share of Excess Real
Estate Taxes and Lessee's Pro Rata Share of Excess Operating Expenses shall be
reduced to 53.01%. Further, for the period May 1, 2005 through April 30, 2006,
Lessee's Pro Rata Share of Excess Real Estate Taxes and Lessee's Pro Rata Share
of Excess Operating Expenses shall be reduced to 64.36%.
ARTICLE XL. (DELETED BY INTENT OF THE PARTIES)
ARTICLE XLI. TERMINATION OF PRIOR LEASE IN OFFICE/WAREHOUSE COMPLEX: Upon the
later of (i) May 1, 2004 or (ii) the date of delivery of possession of the
Premises to Lessee with the Lessee Improvements substantially complete, the term
of the prior lease for space in the Office/Warehouse Complex between the parties
dated September 30, 2002 shall terminate. In the event any of the Lessee
Authorized Work is to be performed in the premises demised under such prior
lease, Lessee will move or remove any of its property or inventory located or
stored in such premises so that the cost of such Lessee Authorized Work will not
be increased over the cost of such work if such premises were vacant and Lessee
shall not delay or interfere with such work.
ARTICLE XLII. ASSIGNMENT OF LEASE IN EAGLE CREEK COMMERCE CENTER EAST: Upon and
effective on May 1, 2004, Lessee and Lessor shall execute and deliver to each
other the Assignment and Assumption of Lease and Consent and Release Agreement
in the form of Exhibit G attached hereto in respect to Lessee's existing lease
in Eagle Creek Commerce Center East. Lessor will cause Opus Real Estate America
II MN, L.L.C., the current owner of Eagle Creek Commerce Center East, to also
execute such document at the same time that Lessor is so required to execute
same. Lessor's obligation to execute same shall be contingent upon Lessee's not
being in default under the terms of the Original Lease as defined in said
Exhibit G as of the Effective Date as defined therein.
ARTICLE XLIII. RIGHT TO EXAMINE BOOKS AND RECORDS OF LESSOR: Lessor hereby
agrees, at Lessee's request, (provided notice of the request is given to Lessor
within 90 days after receipt of Lessor's final statement as to an applicable
Lease Year) to make available to Lessee for its inspection and examination all
of the books and records reasonably necessary to support Lessor's statement as
to Lessee's Pro Rata Share of Excess Real Estate Taxes and Lessee's Pro Rata
Share of Excess Operating Expenses. Such examination shall be completed and any
claims made in respect thereto within 90 days after Lessee's notice requesting
the right to such examination, and otherwise Lessor's statement shall be deemed
final and conclusive as to the applicable Lease Year. If Lessee elects to audit
such costs and expenses and Lessor's statement is in error, the appropriate
party shall pay to the other such payment as may be required based upon such
audit. Lessee shall keep all such information confidential.
-11-
ARTICLE XLIV. LESSEE'S RIGHT TO TERMINATE: Notwithstanding anything in this
Lease (including but not limited to Article IV hereof) to the contrary
notwithstanding, in the event Lessor fails to give actual possession of the
Premises to Lessee (with the Exhibit F Tenant Improvements to be installed by
Lessor substantially completed) on or before August 31, 2004, then Lessee shall
have the option, as its sole remedy, to terminate this Lease upon notice to
Lessor given subsequent to such date and prior to the date that Lessor tenders
possession of the Premises (with the Exhibit F Tenant Improvements to be
installed by Lessor substantially completed) to Lessee. The date August 31,
2004, shall be extended for fire, casualty, strike, action or inaction of
governmental authority, terrorism, shortages of fuel, labor or supplies, or
other reasons beyond Lessor's control, including, but not limited to, acts of
Lessee and delays caused by Lessee. Further, in the event Lessor notifies Lessee
that Lessor will not be able to give possession of the Premises by the date
above specified, as it may be extended as provided above, Lessee may not
terminate this Lease under the provisions hereof unless it does so within five
(5) business days of receipt by Lessee of such notice. Further, Lessee shall not
have the option to terminate this Lease pursuant to this Article if Lessee has
taken possession of any part of the Premises or commenced to install its
equipment, trade fixtures or furniture therein. If Lessee terminates this Lease
pursuant to the provisions of this Article XLIV, then the provisions of Article
XLII and any documents to effectuate the termination provided for therein shall
terminate ab initio.
ARTICLE XLV. INTERRUPTION OF SERVICES: Anything in this Lease to the contrary
notwithstanding, in the event Lessor is unable to provide any of the utility
services required to be maintained by Lessor pursuant to this Lease, and in the
event such inability renders the whole or a portion of the Premises
untenantable, inaccessible or unsuitable for the purposes intended hereunder for
a period of three (3) consecutive days after receipt by Lessor of notice of
untenantability, inaccessibility or unsuitability from Lessee, rent for the
portion of the Premises rendered untenantable, inaccessible or unsuitable for
the purposes intended hereunder shall xxxxx pro rata from and after such third
consecutive day until the services are restored. Anything herein to the contrary
notwithstanding, there shall be no such abatement of rent if the Lessor's
inability to provide such services is caused by misuse or neglect of Lessee or
Lessee's agents, employees, or invitees, or by shortages of fuel or other
inability of public or private suppliers to provide which is generally
applicable in the vicinity of the Office/Warehouse Complex.
Initials:
Lessor /s/ ILLEGIBLE
---------------------------------
Lessee /s/ ILLEGIBLE
---------------------------------
-12-
(OPUS(R) LOGO)
EXHIBIT D
EAGLE CREEK COMMERCE CENTER WEST
TENANT SIGN CRITERIA
The building sign criteria for Eagle Creek Commerce Center West shall be as
follows: It is the tenant's responsibility to provide the Main Tenant
Identification Sign.
I. Front of Building - Exterior Sign
A) Main Tenant Identification Signs - Exterior
1) All exterior front of building tenant identification signs shall
be limited in location to the band above the store front. See
Attachment 1 for details.
2) Tenants may use upper or lower case letters not exceeding 36
inches in height. With individual entrances, signage shall be
centered vertically within the band or centered above the
tenant's space if the door is off center. Where tenants share an
entrance the signage is to be installed on the appropriate side
of entrance per Attachment 1.
3) The total width of letters shall not exceed 50% of total length
for the front face of that portion of the building occupied by
the tenant.
4) Letter face shall be of 3/16" off-white color plexiglass with
matching off-white color edge trim to be selected by owner. The
letter edge depth shall be 1 1/4" (plus or minus 1/16"). The face
recess shall be 1/4". The building standard lettering style shall
be Helvetica Medium, but tenants may select from other type
styles if approved by the building owner.
5) Logos are not acceptable. An exception may be granted by the
building owner when the logo is the name.
6) Method of attaching letters to the building shall conform to
Attachment 2.
B) Front Doors - Exterior/Interior
1) Exterior Front Doors
a) Building address number and suite numbers are required on
the main glass entrance door. Graphics shall be 4 inches
high, 3M, pressure sensitive vinyl, off-white color, heat
removable, Helvetica Medium typestyle, applied first
surface. For individual entrances, numbers shall be centered
on the door with the top of the letter 4" below the top of
the glass. For shared entrance doors, numbers shall be
centered on the appropriate half and 4" below the top of the
glass. See Attachment 3 for details.
2) Interior Doors
a) The name of the business and suite number shall appear on
the interior vestibule door in all upper case letters; 4"
address and 2 1/2" name. Graphics shall be 3M, pressure
sensitive vinyl, off-white color, heat removable, Helvetica
Medium typestyle, applied first surface.
(OPUS(R) LOGO) Eagle Creek Commerce Center West
Tenant Sign Criteria
Page 2
II. Truck Court Doors - Exterior/Interior Signs
1) Exterior Service Door: Tenant provides graphics applied
directly to door. 4" address, 2 1/2" name of 3M, pressure
sensitive vinyl, off-white color, heat removable, Helvetica
Medium typestyle, applied first surface. The first tenant
shall place its name and numbers at top of door, see
Attachment 3. A maximum of 2 tenants per door. All copy to
be upper case.
2) Interior Vestibule Service Door: Graphics shall be identical
with front interior door per I, B, 2, a.
III. Prohibited Signs
1) Prohibited signs are as follows:
a. Signs on glass visible from exterior except as
identified in this criteria.
b. Roof top signs.
c. Freestanding signs other than the project
identification sign and appropriately authorized real
estate sign(s).
d. The use of electrical components that flash,
illuminate, revolve, rotate, or make noise.
e. Auxiliary signage, including banners.
f. Parking space signage without approval of the owner, 3
square feet maximum.
g. Signs on vehicles when parked other than in a parking
stall.
IV. Approval Process
1) Three copies of a sign layout drawing must be submitted by
tenant to the building owner. Approval must be granted in
writing by the building owner prior to signage installation.
2) Tenant is responsible for all permits required by the City.
V. Miscellaneous
1) Tenant is responsible for cost of sign removal upon vacating
the space.
2) Tenant may solicit bids from sign manufacturers of its
selection.
3) Owner reserves the right to approve alternative signage when
deemed appropriate in its sole discretion.
1 EXTERIOR TENANT SIGNAGE
(GRAPH) --------------------------
SINGLE ENTRY 1/8" = 1'-0"
2 EXTERIOR TENANT SIGNAGE
(GRAPH) --------------------------
DOUBLE ENTRY 1/8" = 1'-0"
(OPUS(R) LOGO) Eagle Creek Comm. Center West
--------------------------------------------------------------------------------
Opus Architects and Engineers, Inc. SIGNAGE DETAILS ATTACHMENT 1
10-16-00
(GRAPH) WALL SECTION
PRECAST WALL PANELS
EDGE TRIM PAINTED TO MATCH
XXXXX XXXX PLEXIGLASS
#7420 WHITE
1/4" HOLE W/ EXTERIOR
SILICONE FILL - TYP.
3/16" DEPTH FACE
XXXXX XXXX PLEXIGLASS
#7420 WHITE
ACRYLIC PAD W/ NON-CORROSIVE
3/16" STUD - TYP.
SOLVENT BOND
1 PLEXIGLAS EDGETRIM SECTION
--------------------------
1" = 1' -0"
(OPUS(R) LOGO) Eagle Creek Comm. Center West
--------------------------------------------------------------------------------
Opus Architects and Engineers, Inc. SIGNAGE DETAILS ATTACHMENT 2
10-16-00
(GRAPH) MAXIMUM OF 13 CHARACTERS PER TENANT NAME
A SECOND TENANT LINE IS PERMITTED IF THE LEFT AND RIGHT PERIMETERS
EXCEED THE REQUIREMENTS. A 1" SPACING BETWEEN THE TWO LINES MUST BE
MAINTAINED.
1 EXTERIOR TENANT SIGNAGE
---------------------------------------------
FRONT DOOR SIGNAGE / ADDRESS 1/2" = 1' -0"
(GRAPH) MAXIMUM OF 13 CHARACTERS PER TENANT NAME
A SECOND TENANT LINE IS PERMITTED IF THE LEFT AND RIGHT PERIMETERS
EXCEED THE REQUIREMENTS. A 1" SPACING BETWEEN THE TWO LINES MUST BE
MAINTAINED.
2 EXTERIOR TENANT SIGNAGE
----------------------------------------
REAR DOOR SIGNAGE/ADDRESS 1/2" = 1' -0"
(OPUS(R) LOGO) Eagle Creek Comm. Center West
--------------------------------------------------------------------------------
Opus Architects and Engineers, Inc. SIGNAGE DETAILS ATTACHMENT 3
10-16-00
EXHIBIT E-1
NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT made as of
this ____________ day of ____________. 200_, by and between ____________________
(together with any successor as mortgagee, "Mortgagee"), whose address is
_____________________________________________ and ___________________________, a
________________________________________________ ("Lessee"), having an office at
_______________________________________________.
WITNESSETH
WHEREAS, Lessee is the owner of the Lessee's interest under that
certain Lease which is hereinafter identified; and
WHEREAS, Mortgagee is the mortgagee under that certain Mortgage which
is hereinafter defined; and
WHEREAS, Mortgagee and Lessee are desirous of entering into this
Nondisturbance, Attornment and Subordination Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual
execution of this Agreement by the parties, Mortgagee and Lessee agree as
follows:
1. Definitions. For the purposes of this Agreement, the following
terms shall have the following meanings:
Demised Premises: The property demised under the Lease.
Lease: That certain Lease Agreement dated as of _____________________,
______, between Mortgagor, or its predecessor in interest, as landlord, and
Lessee, as Lessee, as amended.
Mortgage: That certain _______________________________________________
___________________________________________________________________________
__________________________ and ________________________________________ and
_____________________________________________________________, made by
Mortgagor to Mortgagee, which encumbers, and shall be (or has been)
recorded against, the Mortgaged Property, as the same may be amended,
consolidated, spread or supplemented from time to time.
Mortgaged Property: The Demised Premises.
Mortgagee: _____________________________________________________.
Mortgagor: __________________________________________________________,
a _________________________________________________________________, or
its successor who is the holder of the fee interest in the Mortgaged
Property and of the interest of landlord under the Lease.
Person: An individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
Purchaser: Any Person acquiring the Mortgaged Property (i) in any
foreclosure or any action or proceeding (judicial or nonjudicial)
instituted under or in connection with the Mortgage or (ii) by delivery of
a deed or assignment given in lieu of foreclosure, and such Person's
successors and assigns.
2. Nondisturbance. As long as no default exists beyond any applicable
notice and grace period under the Lease, which would then entitle the landlord
under the Lease to terminate the Lease or would cause, without any further
action of such landlord, the termination of the Lease or would then entitle such
landlord to dispossess the Lessee thereunder, the Lease shall not be terminated,
nor shall Lessee's use, possession or enjoyment of the Demised Premises be
interfered with, nor shall the leasehold estate granted by the Lease (nor any
rights or options of the Lessee thereunder, such as, but not limited to, rights
or options to extend or renew, or rights or options to purchase so long as
Lessee makes the purchase price available to the Mortgagee in satisfaction of
the debt secured by the Mortgaged Property) be affected in any other manner, in
any foreclosure or any action or proceeding instituted under or in connection
with the Mortgage or in the case the Mortgagee takes possession of the Mortgaged
Property pursuant to any provisions of the Mortgage, except that Purchaser shall
not be (a) liable for any act or omission or default of any prior lessor or
landlord (including, without limitation, the then defaulting landlord in respect
of time prior to the date Purchaser acquires the Mortgaged Property) except in
respect to the Landlord's obligations to complete the Office/Warehouse Complex
and tenant improvements for the Premises in accordance with the provisions of
the Lease or other defaults continuing beyond the date of acquisition; or (b)
subject to any offsets or defenses which Lessee might have against any prior
lessor or landlord (including, without limitation, the then defaulting landlord)
in respect of time prior to the date Purchaser acquires the Mortgaged Property
except in respect to the Landlord's obligations to complete the Office/Warehouse
Complex and tenant improvements for the Premises in accordance with the
provisions of the Lease and except for rights of setoff expressly provided in
the Lease; or (c) bound by any rent or additional rent which Lessee might have
paid for more than the current month to any prior landlord (including, without
limitation, the then defaulting landlord); or (d) bound by any amendment or
modification of the Lease or any cancellation or surrender of the same made
subsequent to the date hereof without Mortgagee's prior written consent (which
consent shall be subject to the same requirements as Landlord's consent); or (e)
bound by any obligation to make any payment to Lessee which was required to be
made prior to the time such Purchaser succeeded to any prior landlord's interest
except in respect to the Landlord's obligations to complete the Office/Warehouse
Complex and tenant improvements for the Premises in accordance with the
provisions of the Lease and to restore the Office/Warehouse Complex after
casualty or condemnation; or (f) bound by any obligation under the Lease to
perform any work or to make any improvements to the Demised Premises except in
respect to the Landlord's obligations to complete the Office/Warehouse
-2-
Complex and tenant improvements for the Premises in accordance with the
provisions of the Lease and to restore the Office/Warehouse Complex after
casualty or condemnation.
3. Attornment. If the interests of the landlord under the Lease shall
be transferred to a Purchaser, Lessee shall be bound to such Purchaser under all
of the terms, covenants and conditions of the Lease for the balance of the term
thereof remaining and any extensions or renewals thereof which may be effected
in accordance with any option therefor in the Lease, with the same force and
effect as if Purchaser were the landlord under the Lease, and Lessee attorns to
the Purchaser, including Mortgagee if it be Purchaser, as its landlord, said
attornment to be effective and self-operative without the execution of any
further instruments upon Purchaser's succeeding to the interest of the landlord
under the Lease. The respective rights and obligations of Lessee and Purchaser
upon such attornment, to the extent of the then remaining balance of the term of
the Lease and any such extensions and renewals, shall be and are the same as now
set forth therein, except as herein otherwise provided.
4. Subordination. The Lease now is and at all times shall continue to
be subject and subordinate in each and every respect to the lien of the Mortgage
and to any and all increases, renewals, modifications, extensions,
substitutions, consolidations and replacements of the Mortgage.
5. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of Mortgagee, its successors and assigns as mortgagee, and
Lessee and its successors and assigns as holders of the interest of the Lessee
under the Lease.
6. Choice of Law. This Agreement shall be governed and construed in
accordance with the laws of the state in which the Mortgaged Property is
located.
7. No Partnership. It is understood and agreed that the sole interest
of Mortgagee in the Mortgaged Property is that of mortgagee and nothing herein
is to be construed as either creating or evidencing a partnership or joint
venture between Mortgagor and Mortgagee or creating a guaranty of the
obligations of owner by Mortgagee.
8. Recognition of Mortgagee as "Mortgagee" Under the Lease. Lessee
hereby recognizes Mortgagee as "Mortgagee" under the Lease and agrees to forward
copies of any notices required to be given to the Mortgagee pursuant to the
terms of the Lease at the address of Mortgagee set forth above. Lessee further
agrees that Mortgagee shall be entitled to any other rights and privileges
granted to a "Mortgagee" under the Lease.
-3-
IN WITNESS WHEREOF, Mortgagee and Lessee have executed the foregoing
agreement as of the day and year first hereinabove written.
----------------------------------------
Mortgagee
By:
------------------------------------
Its:
-----------------------------------
----------------------------------------
Lessee
By:
------------------------------------
Its:
-----------------------------------
-4-
STATE OF __________________________)
) ss.
COUNTY OF _________________________)
The foregoing was acknowledged before me this __________________ day of
______________, ________, by _________________________________________________,
the ___________________________________________________________________ of
___________________________________________, a ______________________under the
laws of the State of_________________________, on behalf of the ______________.
NOTARY STAMP OR SEAL: ----------------------------------------
SIGNATURE OF PERSON TAKING
ACKNOWLEDGMENT
STATE OF__________________________)
) ss.
COUNTY OF_________________________)
The foregoing was acknowledged before me this __________________ day of
_____________, ________, by __________________________________________________,
the _______________________________________________________________________ of
___________________________________________, a _____________________ under the
laws of the State of ________________________, on behalf of the ______________.
NOTARY STAMP OR SEAL: ----------------------------------------
SIGNATURE OF PERSON TAKING
ACKNOWLEDGMENT
-5-
EXHIBIT E-2
FORM OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a New York corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Lender") and _________________________________________________,
a [an] [individual] name of state [corporation] [limited liability company]
[general partnership] [limited partnership] [d/b/a ________________] with its
principal place of business at _____________________("Tenant").
RECITALS:
A. Lender has made or is about to make a loan (together with all advances
and increases, the "Loan") to _________________________, a [an] [individual]
[corporation] [limited company] [general partnership] [limited partnership]
("Borrower").
B. Borrower, as landlord, and Tenant have entered into a lease dated
________________ as amended by amendments dated __________________________ (the
"Lease") which leased to Tenant [Suite No.____________] [Floor _________] [Store
No. _________] (the "Leased Space") located in the Property (defined below).
C. The Loan is or will be secured by the [Open-End] Mortgage, Assignment of
Leases and Rents, Fixture Filing Statement and Security Agreement recorded or to
be recorded in the official records of the County of _________________, State or
Commonwealth of _________________________(together with all advances, increases,
amendments or consolidations, the "Mortgage") and the Assignment of Leases and
Rents recorded or to be recorded in such official records (together with all
amendments or consolidations, the "Assignment"), assigning to Lender the Lease
and all rent, additional rent and other sums payable by Tenant under the Lease
(the "Rent").
D. The Mortgage encumbers the real property, improvements and fixtures
located at ______________________ in the City of ___________________, County of
________________________, State or Commonwealth of ___________________________,
commonly known as __________________________________, and described on Exhibit
"A" (the "Property").
IN CONSIDERATION of the mutual agreements contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will remain
subject and subordinate to the lien of the Mortgage and all of Lender's rights
under the
Mortgage and Tenant will not subordinate the Lease to any other lien against the
Property without Lender's prior consent.
2. This Agreement constitutes notice to Tenant of the Mortgage and the
Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent as
and when due under the Lease to Lender and the payments will be credited against
the Rent due under the Lease.
3. Tenant does not have and will not acquire any right or option to
purchase any portion of or interest in the Property.
4. Tenant and Lender agree that if Lender exercises its remedies under the
Mortgage or the Assignment and if Tenant is not then in default under this
Agreement and if Tenant is not then in default beyond any applicable grace and
cure periods under the Lease:
A. Lender will not name Tenant as a party to any judicial or non-
judicial foreclosure or other proceeding to enforce the Mortgage unless joinder
is required under applicable law but in such case Lender will not seek
affirmative relief against Tenant, the Lease will not be terminated and Tenant's
possession of the Leased Space will not be disturbed;
B. If Lender or any other entity (a "Successor Landlord") acquires the
Property through foreclosure, by other proceeding to enforce the Mortgage or by
decd-in-lieu of foreclosure (a "Foreclosure"), Tenant's possession of the Leased
Space and other rights under the Lease will not be disturbed and the Lease will
continue in full force and effect between Successor Landlord and Tenant; and
C. If, notwithstanding the foregoing, the Lease is terminated as a
result of a Foreclosure, a lease between Successor Landlord and Tenant will be
deemed created, with no further instrument required, on the same terms as the
Lease except that the term of the replacement lease will be the then unexpired
term of the Lease. Successor Landlord and Tenant will execute a replacement
lease at the request of either.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor Landlord
as the landlord under the Lease for the balance of the term. Tenant's attornment
will be self-operative with no further instrument required to effectuate the
attornment except that at Successor Landlord's request, Tenant will execute
instruments reasonably satisfactory to Successor Landlord confirming the
attornment.
6. Successor Landlord will not be:
A. liable for any act or omission of any prior landlord under the
Lease occurring before the date of the Foreclosure except for repair and
maintenance obligations of a continuing nature imposed on the landlord under the
Lease and except for rights of continuing offset as may be expressly provided
for in the Lease of which Lender has notice at the time of commencement of
foreclosure proceedings;
-2-
B. required to credit Tenant with any Rent paid more than one month in
advance or for any security deposit unless such Rent or security deposit has
been received by Successor Landlord;
C. bound by any amendment, renewal or extension of the Lease
subsequent to the date hereof that is inconsistent with the terms of this
Agreement or is not in writing and signed both by Tenant and landlord or
otherwise consented to by Lender or Successor Landlord;
D. bound by any reduction of the Rent unless the reduction is in
connection with an extension or renewal of the Lease at prevailing market terms
or was made with Lender's prior consent;
E. bound by any reduction of the term(1) of the Lease or any
termination, cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last 6 months of the
term or was made with Lender's prior consent;
F. bound by any amendment, renewal or extension of the Lease entered
into subsequent to the date hereof without Lender's prior consent if the Leased
Space represents 50% or more of the net rentable area of the building in which
the Leased Space is located;
G. subject to any credits, offsets (except continuing offsets
expressly provided for in the Lease of which Lender has notice at the time of
commencement of foreclosure proceedings), claims, counterclaims or defenses that
Tenant may have that arose prior to the date of the Foreclosure or liable for
any damages Tenant may suffer as a result of any misrepresentation, breach of
warranty or any act of or failure to act by any party other than Successor
Landlord;
H. bound by any obligation to make improvements to the Property,
including the Leased Space, to make any payment or give any credit or allowance
to Tenant provided for in the Lease or to pay any leasing commissions arising
out of the Lease, except that Successor Landlord will be:
(i) bound by any such obligations provided for in the
initial Lease;
(ii) bound by any such obligations if the overall economic
terms of the Lease (including the economic terms of any renewal
options) represented market terms for similar space in properties
comparable to the Property when the Lease was executed; and
----------
(1) For purposes of this subparagraph "the term of the Lease" includes any
exercised renewal term after the right to renew has been exercised
-3-
(iii) bound to comply with the casualty and condemnation
provisions included in the Lease;
or
I. liable for obligations under the Lease with respect to any off-site
property or facilities for the use of Tenant (such as off-site leased space or
parking) unless Successor Landlord acquires in the Foreclosure the right, title
or interest to the off-site property.
7. Lender will have the right, but not the obligation, to cure any default
by Borrower, as landlord, under the Lease. Tenant will notify Lender of any
default that would entitle Tenant to terminate the Lease or xxxxx the Rent and
any notice of termination or abatement will not be effective unless Tenant has
so notified Lender of the default and Lender has had a 30-day cure period (or
such longer period as may be necessary if the default is not susceptible to cure
within 30 days) commencing on the later to occur of the date on which (i) the
cure period under the Lease expires or (ii) Lender receives the notice required
by this paragraph.
8. All notices, requests or consents required or permitted to be given
under this Agreement must be in writing and sent by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at the address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or this
Agreement will be satisfied solely out of Successor Landlord's interest in the
Property and Tenant will not seek recovery against or out of any other assets of
Successor Landlord. Successor Landlord will have no liability or responsibility
for any obligations under the Lease that arise subsequent to any transfer of the
Property by Successor Landlord.
10. This Agreement is governed by and will be construed in accordance with
the laws of the state or commonwealth in which the Property is located.
11. This Agreement binds and inures to the benefit of Lender and Tenant and
their respective successors, assigns, heirs, administrators, executors, agents
and representatives.
12. This Agreement contains the entire agreement between Lender and Tenant
with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
-4-
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this
Agreement as of _______________________, 1998.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA,
a New York corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Insert Name of Tenant,
a [an] [individual]
--------------------
[corporation] [limited liability
company] [general partnership]
[limited partnership] [d/b/a
--------------------------------------].
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[OBSERVE ALL STATE SPECIFIC REQUIREMENTS FOR EXECUTION OF A RECORDABLE
DOCUMENT AND ADD STATE-APPROVED FORMS OF ACKNOWLEDGMENT]
-5-
ACKNOWLEDGMENT
State of _______________________ )
) ss:
County of ______________________ )
On this the _______ day of _______________________, 200____, before me, the
undersigned officer, personally appeared ________________________________ who
acknowledged himself to be the __________________________ of
____________________________________, a corporation, and that he, as such
_____________________________ being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as _______________________________________.
In witness whereof I hereunto set my hand and official seal.
----------------------------------------
----------------------------------------
Title of Officer
Initials:
Lessor
---------------------------------
Lessee
---------------------------------
EXHIBIT F
Sheet ID-1 Floor Plan and Key Plan dated 12/30/03
Sheet ID-2 Enlarged Office Plan
All prepared by Opus Architects and Engineers
Outline Specifications for Chief Manufacturing Tenant Improvement, Xxxxx Xxxxx
Xxxxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx prepared by Opus Northwest, L.L.C. dated
January 12, 2004
EXHIBIT G
ASSIGNMENT AND ASSUMPTION OF LEASE
AND CONSENT AND RELEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT AND RELEASE AGREEMENT
("Agreement") is made as of May 1, 2004, by and between CHIEF MANUFACTURING,
INC., a Minnesota corporation ("Chief"), OPUS NORTHWEST, L.L.C., a Delaware
limited liability company ("Opus Northwest"), and OPUS REAL ESTATE AMERICA II
MN, L.L.C., a Delaware limited liability company ("ORE II").
RECITALS:
A. Chief, as tenant, entered into an Office/Warehouse Lease with Opus
Northwest, as landlord, dated May 30, 2000 ("Original Lease"), for certain
office/warehouse premises in the office/warehouse complex known and described as
Eagle Creek Commerce Center, and located at 00000 Xxxxx Xxxxxxx 00, Xxxxxx,
Xxxxxxxxx, and legally described on the attached EXHIBIT "A".
B. The landlord's interest under the Original Lease was assigned by Opus
Northwest to ORE II pursuant to a certain Assignment and Assumption of Leases
dated August 31, 2000.
C. The Original Lease was amended pursuant to a certain First Amendment to
Office/Warehouse Lease by and between Chief, as tenant, and ORE II, as landlord,
dated November 20, 2001. The Original Lease, as so amended, is herein referred
to as the "Lease."
D. In connection with the execution and delivery of a replacement lease for
new space in a different building by and between Opus Northwest, as landlord,
and Chief, as tenant ("Replacement Lease"), Chief has required, and Opus
Northwest has agreed, that Chief assign to Opus Northwest, and Opus Northwest
assume all tenant obligations under the Lease accruing from and after the
Commencement Date of the Replacement Lease which is May 1, 2004 ("Effective
Date").
E. In order to induce Chief to enter into the Replacement Lease, Chief has
required that ORE II release Chief from liability arising or accruing under the
Lease from and after the Effective Date.
F. ORE II is willing to so release Chief upon the terms and conditions
hereinafter set forth, including without limitation, the express assumption by
Opus Northwest of the obligations of Chief under the Lease accruing on and after
the Effective Date.
AGREEMENT:
In consideration of the foregoing recitals and other good and valuable
consideration, Chief and Opus Northwest agree as follows:
1. ASSIGNMENT BY CHIEF. Chief hereby assigns and transfers to Opus
Northwest, effective as of the Effective Date, all right, title and interest of
Chief in and to the Lease including, without limitation, all of the rights,
duties, covenants, provisions, conditions and obligations of Chief as lessee
under the Lease.
2. ACCEPTANCE OF ASSIGNMENT BY OPUS NORTHWEST. For the benefit of Chief and
ORE II, Opus Northwest hereby accepts the assignment of the Lease, effective as
of the Effective Date, and assumes and agrees to keep, perform and fulfill all
of the duties, covenants, provisions, conditions and obligations of the lessee
under the Lease which accrue on and after the Effective Date.
3. INDEMNIFICATION BY CHIEF. Chief will indemnify, defend and hold harmless
Opus Northwest and Opus Northwest's employees, partners, directors, officers,
affiliates, subsidiaries, shareholders, agents and representatives from any and
all liabilities, claims, damages, costs or expenses (including reasonable
attorneys' fees) arising under the Lease as a result of any obligations and
duties of the lessee under the Lease accruing prior to the Effective Date.
4. INDEMNIFICATION BY OPUS NORTHWEST. Opus Northwest will indemnify, defend
and hold harmless Chief and Chief's employees, partners, directors, officers,
affiliates, subsidiaries, shareholders, agents and representatives from any and
all liabilities, claims, damages, costs or expenses (including reasonable
attorneys' fees) arising under the Lease as a result of any obligations and
duties of the lessee under the Lease accruing on or after the Effective Date.
5. CONSENT OF ORE II. Provided that Chief is not then in default of any of
its obligations and duties under the Lease as of the Effective Date, ORE II will
consent to the assignment by Chief to Opus Northwest of the Lease on the
Effective Date as herein described.
6. RELEASE OF ORE II. Provided that Chief is not then in default of any of
its obligations and duties under the Lease as of the Effective Date, ORE II
agrees to release Chief from all obligations and liabilities of the lessee under
the Lease accruing on or after the Effective Date. Opus Northwest, ORE II and
Chief hereby acknowledge and confirm that Chief was never required to make the
security deposit referred to in Article XXVI of the Lease and that, accordingly,
neither Opus Northwest nor ORE II holds a security deposit from or paid by
Chief..
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
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8. AUTHORITY. Each of the parties signing this Agreement hereby warrants
and represents that it has the full legal power, authority and right to execute,
deliver and perform the obligations under this Agreement, that this Agreement
has been duly authorized by all requisite actions on the part of such warranting
party, and that no remaining action or third party action is required to make
this Agreement binding upon such party.
9. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota.
10. ATTORNEYS' FEES. If either party commences litigation against the other
for the specific performance of this Agreement, the interpretation of this
Agreement, for damages for the breach hereof or otherwise for enforcement of any
remedy hereunder, the parties hereto agree, in the event of any such
commencement of litigation, the prevailing party shall be entitled to recover
from the other party such costs and reasonable attorneys' fees as may have been
incurred. Any attorneys' fees incurred in enforcing any right of indemnity set
forth in this Agreement shall be recoverable and deemed to be within the scope
of such indemnity and/or this attorneys' fees provision.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed and when delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
12. Chief represents to Opus Northwest and ORE II that Chief has not
heretofore assigned or transferred any interest in the Original Lease to any
third party.
13. Chief agrees that it will vacate and surrender the premises demised
under the Original Lease on April 30, 2004 in the same condition that Chief
would be required to surrender same if the Original Lease terminated on April
30, 2004.
14. Chief represents and warrants to Opus Northwest and ORE II that the
Tenant Improvements to be installed and constructed by the landlord as provided
in Article XXX of the Original Lease have been satisfactorily completed and that
said landlord has no further obligation to construct or install any Tenant
Improvements under the Original Lease. Chief also hereby acknowledges and
confirms that Chief has no claim against Opus Northwest or the landlord under
the Original Lease for liquidated damages as provided in Article XXXV of the
Original Lease.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Chief, Opus Northwest and ORE II have executed this
Agreement as of the date first above written.
CHIEF:
CHIEF MANUFACTURING, INC.
By:
------------------------------------
Its:
-----------------------------------
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OPUS NORTHWEST:
OPUS NORTHWEST, L.L.C.
By:
------------------------------------
Its:
-----------------------------------
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ORE II:
OPUS REAL ESTATE AMERICA II, L.L.C.
By:
------------------------------------
Its:
-----------------------------------
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EXHIBIT "A"
(LEGAL DESCRIPTION)
