STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE-NET
(Do not use this form for Multi-Tenant Property)
1. BASIC PROVISIONS ("Basic Provisions")
1.1 Parties: This Lease ("Lease") dated, for reference
purposes only, _____________, 1995, is made by and between ST.
LOUIS PARTNERSHIP #4, L.P., an Indiana limited partnership
("Landlord"), and APRIA HEALTHCARE, INC., a Delaware corporation
("Tenant"), (collectively the "Parties", or individually a
"Party").
1.2 Premises: That certain real property more fully
described on Exhibit A hereto in the
in the City of St. Xxxx, County of St. Louis, State of Missouri
(the "Land") including all improvements thereon or to be provided
by Landlord under the terms of this Lease (the "Improvements"),
and generally described as a 52,200 square foot office and
warehouse building containing approximately 19,720 square feet
of office space and approximately 32,480 square feet of warehouse
space (subject to expansion as described in the Special
Provisions Addendum hereto) located on 6.94 acres of land which
has been or is to be further improved with certain driveways,
parking areas, landscaping, utility lines and drainage facilities
as more fully described in the Lease ("Premises"). A site plan
showing the proposed locations of the Improvements on the Land is
attached hereto as Exhibit A-1. (See Paragraph 2 for further
provisions.)
1.3 Term: One hundred twenty (120) months ("Lease Term")
commencing July 1, 1996 ("Commencement Date") and ending June 30,
2006 ("Expiration Date"). (See Paragraph 3 for further
provisions.)
1.4 Base Rent: The Base Rent (herein so called) shall be
payable at the rate of $ 37,280 per month payable on the first
day of each month commencing on the Commencement Date and
continuing for the first sixty (60) full calendar months of the
Lease Term, and $42,872 per month commencing on the first day of
the sixty-first (61st) full calendar month of the Lease Term and
continuing thereafter on the first day of each calendar month of
the remainder of the Lease Term. (See Paragraph 4 for further
provisions.)
1.5 Base Rent Paid Upon Execution. NONE
1.6 Permitted Use: The Premises are to be used by Tenant
solely for general warehouse distribution, general office, a
pharmacy, a center for infusion therapy (to the extent permitted
by Applicable Law) and related purposes and for such other lawful
purposes that are compatible with a first class business park, as
determined by Landlord in its sole discretion, reasonably
applied. It is acknowledged that, as a part of its business,
Tenant intends to store liquid oxygen, cleaning solvents and
other flammable materials on the Premises and that Tenant also
handles and disposes of medical waste products.
1.7 Insuring Party: Tenant is the "Insuring
Party" unless otherwise stated herein. (See Paragraph
8 for further provisions.)
1.8 Real Estate Brokers: NONE
1.9 Addenda and Exhibits. If marked, the following Addenda
and Exhibits are attached hereto and incorporated herein by
reference a fully as if set forth herein verbatim:
Exhibits
x Exhibit A -- The Land
x Exhibit A-1 -- Site Plan
x Exhibit B -- Tenancy Statement
Addenda
x Renewal Option
o Expansion/Right of First Refusal Option
o Base Rent Adjustment
x Construction Addendum
x Oxygen Tank Addendum
x Special Provisions Addendum
2. PREMISES.
2.1 Letting. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises, for the term, at the
rental, and upon all of the terms, covenants and conditions set
forth in this Lease. Unless otherwise provided herein, any
statement of square footage set forth in this Lease, or that may
have been used in calculating rental, is an approximation which
Landlord and Tenant agree is reasonable and the rental based
thereon is not subject to revision whether or not the actual
square footage is more or less.
2.2 Condition. If Landlord is to construct the
Improvements or make improvements to the Premises prior to the
Commencement Date, then Landlord shall deliver the same to Tenant
in the condition and subject to the warranties set forth in the
Construction Addendum. If no construction is to be performed by
Landlord hereunder, then Landlord shall deliver the Premises to
Tenant clean and free of debris on the Commencement Date and
warrants to Tenant that the existing plumbing, fire sprinkler
system, lighting, air conditioning, heating, and loading doors,
if any, in the Premises, other than those constructed by Tenant,
shall have been properly maintained and be in good operating
condition on the Commencement Date. If a non-compliance with
said warranty exists as of the Commencement Date, Landlord shall,
except as otherwise provided in this Lease, promptly after
receipt of written notice from Tenant setting forth with
specificity the nature and extent of such non-compliance, rectify
same at Landlord's expense.
2.3 Compliance with Covenants, Restrictions and Building
Code. Landlord warrants to Tenant that the improvements on the
Premises comply and on the Commencement Date will comply with all
applicable covenants or restrictions of record and applicable
building codes, regulations and ordinances in effect on the
Commencement Date. If the Premises do not comply with said
warranty, Landlord shall, except as otherwise provided in this
Lease, promptly after receipt of written notice from Tenant
setting forth with specificity the nature and extent of such non-
compliance, rectify the same at Landlord's expense.
2.4 Representations Concerning Premises. Landlord hereby
represents that the Premises are suitable for Tenant's intended
use, that such use is permitted by Applicable Law, and that all
improvements made thereto have been performed in a good and
workmanlike manner in accordance with the terms of this Lease.
3. TERM.
3.1 Term. The scheduled Commencement Date, Expiration Date
and Lease Term of this Lease are specified in Section 1.3.
3.2 Early Possession. During the forty-five (45) day
period prior to the Commencement Date, Tenant, on the terms set
forth in the Construction Addendum, shall have the right to
enter upon the Premises for purposes of installing its cabling,
fixtures, furnishings and equipment. However, prior to
substantial completion of construction, any work performed by
Tenant must be performed by AFL-CIO recognized union craftsmen
approved by local union authorities having jurisdiction over the
project. Such entry upon the Premises shall not be deemed to
constitute the taking of possession or occupancy of the Premises.
If Tenant totally or partially occupies the Premises prior to the
Commencement Date and begins conducting business from within the
Premises, the obligation to pay Base Rent shall commence during
the period of such early possession. In addition, all other
terms of this Lease (including but not limited to the obligations
to pay Real Property Taxes and insurance premiums and to maintain
the Premises) shall be in effect during such period. In such an
event, the Commencement Date shall be advanced to coincide with
the date upon which such early commencement of business from
within the Premises shall occur and the Expiration Date of the
Lease Term shall be advanced accordingly. However, under no
circumstances shall Tenant be obligated to take possession of the
Premises until the later to occur of the scheduled Commencement
Date and the date the Premises are delivered to Tenant in the
condition required hereby.
3.3 Delay In Possession. If for any reason Landlord cannot
deliver possession of the Premises to Tenant as agreed herein by
the scheduled Commencement Date, Landlord, except as may be set
forth in the Construction Addendum, if any, attached hereto,
shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease, or the obligations of
Tenant hereunder, or extend the Lease Term. In such case, Tenant
shall not, except as otherwise provided herein, be obligated to
pay rent or perform any other obligation of Tenant under the
terms of this Lease until Landlord delivers possession of the
Premises to Tenant, the Commencement Date shall be adjusted to
coincide with the date the Premises are actually delivered by
Landlord to Tenant in accordance with the requirements of this
Lease and the Expiration Date shall be adjusted accordingly. If
possession of the Premises is not delivered to Tenant within
ninety (90) days after the scheduled Commencement Date (subject
to delays caused by "Forces Majeures" as provided for in the
Construction Addendum"), Tenant may, at its option, by notice in
writing to Landlord, cancel this Lease, in which event the
Parties shall be discharged from all obligations hereunder;
provided, however, that if such written notice by Tenant is not
received by Landlord prior to the delivery of possession by
Landlord, Tenant's right to cancel this Lease shall terminate
and be of no further force or effect. Except as may be otherwise
provided, and regardless of when the Lease Term actually
commences, if possession is not tendered to Tenant when required
by this Lease and Tenant does not terminate this Lease, as
aforesaid, the period free of the obligation to pay Base Rent, if
any, that Tenant would otherwise have enjoyed shall run from the
date of delivery of possession and continue for a period equal to
what Tenant would otherwise have enjoyed under the terms hereof,
but minus any days of delay caused by the acts, changes or
omissions of Tenant. After the occurrence of the actual
Commencement Date, either Party, upon request by the other, shall
execute a memorandum reflecting the actual Commencement Date and
Expiration Date.
4. RENT.
4.1 Base Rent. Except as herein specifically provided,
Tenant shall cause payment of Base Rent and other rent or
charges, as the same may be adjusted from time to time, to be
received by Landlord in lawful money of the United States,
without offset or deduction, on or before the day on which it is
due under the terms of this Lease. Base Rent and all other rent
and charges for any period during the term hereof which is for
less than one (1) full calendar month shall be prorated based
upon the actual number of days of the calendar month involved.
Payment of Base Rent and other charges shall be made to Landlord
at its address stated herein or to such other persons or at such
other addresses as Landlord may from time to time designate in
writing to Tenant. If the Commencement Date shall occur on a
date which is not the first day of a calendar month, the partial
month at the commencement of the Lease Term shall be added to the
Lease Term so that the 120 months of the scheduled Lease Term
shall commence to elapse on the first day of the first calendar
month following the month during which the actual Commencement
Date occurs. The Base Rent for any such partial calendar month
at the commencement of the Lease Term shall be calculated at the
same rate as is provided for the first month of the Lease Term.
5. SECURITY DEPOSIT. INTENTIONALLY DELETED
6. USE.
6.1 Use. Tenant shall use and occupy the Premises only for
the purposes set forth in Section 1.6, or any other use which is
comparable thereto. Landlord hereby agrees to not unreasonably
withhold or delay its consent to any written request by Tenant,
Tenant's assignees or subtenants, and by prospective assignees
and subtenants of the Tenant, its assignees and subtenants, for a
modification of said permitted purpose for which the premises may
be used or occupied, so long as the same will not impair the
structural integrity of the improvements on the Premises, the
mechanical or electrical systems therein, is not significantly
more burdensome to the Premises and the improvements thereon,
shall not cause a material diminution of the value of the
Premises, and is otherwise permissible pursuant to this Paragraph
6. If Landlord elects to withhold such consent, Landlord shall
within five (5) business days give a written notification of
same, which notice shall include an explanation of Landlord's
reasonable objections to the change in use. Tenant covenants and
agrees that it will use, maintain and occupy the Premises in a
careful, safe and lawful manner. Subject to and as provided in
Section 6.3, Tenant shall not (i) allow the Premises or the use
thereof to violate any ordinance, statute, order or regulation of
any governmental authority, including but not limited to those
governing zoning, health, safety, occupational hazards, pollution
and environmental control; (ii) maintain or permit any nuisance
to occur on the Premises; (iii) use the Premises, or allow the
Premises to be used, for any purpose or in any manner which would
invalidate any policy or insurance of Tenant now or hereafter
carried on the Premises; (iv) commit or permit waste thereon;
(v) use the Premises, or allow the Premises to be used, in
violation of any restrictive covenant applicable thereto; or
(vi) use the Premises in any manner or store anything in or upon
the Premises which shall result in a greater hazard than the
occupancy originally contemplated under this Lease. It is
acknowledged that, as a part of its business, Tenant intends to
store liquid oxygen, cleaning solvents and other flammable
materials on the Premises and that Tenant also handles and
disposes of medical waste products. Tenant hereby covenants and
agrees that it will (i) fully disclose to its various insurance
carriers all of the potentially hazardous aspects of its
operations, (ii) store, handle and dispose of all flammable,
toxic, and hazardous materials, including without limitation,
medical waste, in accordance with all applicable statutes, laws,
ordinances, codes, rules and regulations and in accordance with
prudent practices, (iii) not allow any escape, spill or improper
disposal of any hazardous substance or medical waste on the
Premises or any part thereof, (iv) obtain, prior to commencement
of operations, all necessary governmental, administrative and
regulatory permits, licenses and approvals and (v) notify
Landlord promptly of any escape, spill or improper disposal of
any hazardous substance or medical waste on the Premises which
violates any applicable law, statute, ordinance, code rule or
regulation.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term
"Hazardous Substance" as used in this Lease shall mean any
product, substance, chemical material or waste whose presence,
nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on
the Premises, is either: (i) potentially injurious to the public
health, safely or welfare, the environment or the Premises, (ii)
regulated or monitored by any governmental authority, or (iii) a
basis for liability of Landlord to any governmental agency or
third party under any applicable statute or common law theory.
Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products, by-
products or fractions thereof. Except as otherwise permitted
herein, Tenant shall not engage in any activity in, or about the
Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior
written consent of Landlord and compliance in a timely manner (at
Tenant's sole cost and expense) with all Applicable Law (as
defined in Section 6.3). "Reportable Use" shall mean (i) the
installation or use of any above or below ground storage tank, or
(ii) the generation, possession, storage, use, transportation, or
disposal of a Hazardous Substance that requires a permit from, or
with respect to which a report, notice, registration or business
plan is required to be filed with any governmental authority.
Reportable Use shall also include Tenant's being responsible for
the presence in, on or about the Premises of a Hazardous
Substance with respect to which any Applicable Law (hereinafter
defined) requires that a notice be given to persons entering or
occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Tenant may, without Landlord's
prior consent, but in compliance with all Applicable Law, use any
ordinary and customary materials reasonably required to be used
by Tenant in the normal course of Tenant's business permitted on
the Premises, so long as such use is not a Reportable Use and
does not expose the Premises or neighboring properties to any
meaningful risk of contamination or damage or expose Landlord to
any liability therefor. In addition, Landlord may (but without
any obligation to do so) condition its consent to the use or
presence of any Hazardous Substance, activity or storage tank by
Tenant upon Tenant's giving Landlord such additional assurances
as Landlord, in its reasonable discretion, deems necessary to
protect itself, the public, the Premises and the environment
against damage, contamination or injury and/or liability
therefrom or therefor, including, but not limited to, the
installation (and removal on or before Lease expiration or
earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements).
(b) Duty to Inform Landlord. If Tenant knows, or has
reasonable cause to believe, that a Hazardous Substance, or a
condition involving or resulting from same, has come to be
located in, on, under or about the Premises, other than as
previously consented to by Landlord or permitted hereunder,
Tenant shall give written notice of such fact to Landlord.
Tenant shall also provide Landlord a copy of any statement,
report, notice, registration, application, permit, business plan,
license, claim, action or proceeding given to, or received from
any governmental authority or private party, or persons entering
or occupying the Premises, concerning the presence, spill,
release, discharge of, or exposure to, any Hazardous Substance or
contamination in, on, or about the Premises, including but not
limited to all documents as may be involved in any Reportable
Uses involving the Premises.
(c) Compliance and Indemnification. Tenant hereby
covenants and agrees that it will (i) store, handle and dispose
of all flammable, toxic, and Hazardous Substance, including
without limitation, medical waste, in accordance with all
applicable statutes, laws, ordinances, codes, rules and
regulations and in accordance with prudent practices, (ii) not
allow any escape, spill or improper disposal of any Hazardous
Substance or medical waste on the Premises or any part thereof,
(iii) obtain, prior to commencement of operations, all necessary
governmental, administrative and regulatory permits, licenses and
approvals and (iv) notify Landlord immediately of any escape,
spill or improper disposal of any Hazardous Substance or medical
waste on the Premises which violates any applicable law, statute,
ordinance, code, rule or regulation.Tenant shall indemnify,
protect, defend and hold Landlord, its agents, employees, lenders
and ground lessor, if any, and the Premises, harmless from and
against any and all loss of rents and/or damages, liabilities,
judgments, costs, claims, liens, expenses, penalties, permits and
attorney's and consultant's fees arising out of or involving any
Hazardous Substance or storage tank brought onto the Land, the
Building or the Premises by or for Tenant or under Tenant's
control.
6.3 Tenant's Compliance with Law.
(a) Definition; Evidence of Compliance. Except as
otherwise provided in this Lease, Tenant shall, at Tenant's sole
cost and expense, fully, diligently and in a timely manner,
comply with all "Applicable Law", which term is used in this
Lease to include all laws, rules, regulations, ordinances,
directives, covenants, easements and restrictions of record,
permits, the requirements of any applicable fire insurance
underwriter or rating bureau, and the recommendations of
Landlord's engineers and/or consultants, relating in any manner
to the Premises (including but not limited to matters pertaining
to (i) industrial hygiene, (ii) environmental conditions on, in,
under or about the Premises, including soil and groundwater
conditions, and (iii) the use, generation, manufacture,
production installation, maintenance, removal, transportation,
storage, spill or release of any Hazardous Substance or storage
tank), now in effect or which may hereafter come into effect, and
whether or not reflecting a change in policy from any previously
existing policy. Tenant shall, within forty-five (45) days after
receipt of Landlord's written request, provide Landlord with
copies of all documents and information, including, but not
limited to, permits, registrations, manifests, applications,
reports and certificates, evidencing Tenant's compliance with any
Applicable Law specified by Landlord, and shall notify Landlord
in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint
or report pertaining to or involving failure by Tenant or the
Premises to comply with any Applicable Law.
(b) Tenant's Right to Contest. Tenant shall have the
right after written notice to Landlord, at its sole expense, to
contest in good faith by appropriate legal proceedings the
validity or application of any law, ordinance or other legal
requirement and to delay compliance therewith pending the
prosecution of such proceedings, provided that (i) no civil or
criminal penalty, violation, fine or levy would be incurred by
Landlord, (ii) no lien or charge would be imposed upon the
Premises or the Improvements by reason of such delay, and (iii)
such legal proceedings are conducted in the manner prescribed by
applicable laws, ordinances, statutes, codes, rules and
regulations and requirements of any applicable governmental
agency or court. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims, demands,
liabilities, losses, damages, costs and expenses (including
without limitation, attorney's fees) arising out of or in
connection with any such contest by Tenant.
(c) Landlord's Responsibility. Landlord shall be
responsible for any material violations of legal requirements
existing with respect to the Premises on the Commencement Date,
and Tenant shall have no liability therefor, unless caused by
Tenant, its employees or agents. Landlord shall, at its expense,
make any necessary repairs or take other actions necessary to
correct any material violation of legal requirements for which it
is responsible, and of which notice is delivered to Tenant or
Landlord by the appropriate governmental authorities. If, during
the Lease Term, any alteration, addition or change to the
Premises is required by legal authorities, then Tenant shall, at
its sole expense, make the same.
6.4 Inspection; Compliance. Landlord and Landlord's
Lender(s) [as defined in Section 8.3(a)] shall have the right to
enter the Premises at any time in the case of an emergency, and
otherwise at reasonable times upon reasonable prior written
notice for the purpose of inspecting the condition of the
Premises and for verifying compliance by Tenant with this Lease
and all Applicable Laws (as defined in Section 6.3) and to employ
experts and/or consultants in connection therewith and/or to
advise Landlord with respect to Tenant's activities, including
but not limited to the installation, operation, use, monitoring,
maintenance, or removal of any Hazardous Substance or storage
tank on or from the Premises. The costs and expenses of any such
inspections shall be paid by the party requesting same, unless a
Default or Breach of this Lease, violation of Applicable Law, or
a contamination, caused or materially contributed to by Tenant is
found to exist or be imminent, or unless the inspection is
requested or ordered by a governmental authority as the result of
any such existing or imminent violation or contamination.
7. MAINTENANCE; REPAIRS; UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 Tenant's Obligations. Subject to the provisions of
Sections 2.2 (Landlord's warranty as to condition), 2.3 (Tenant's
warranty as to compliance with covenants, etc.). 7.2 (Landlord's
obligations to repair), 2.4 (representations concerning
Premises), 9 (damage and destruction), and 14 (condemnation), and
any express or implied warranties of construction by Landlord,
Tenant shall, at Tenant's sole cost and expense and at all times,
keep the Premises and the sidewalks and parking areas on the
Premises, and every part thereof in good order, condition and
repair, including, without limiting the generality of the
foregoing, all equipment or facilities serving the Premises, such
as interior and above foundation or slab plumbing and utility
lines, heating, air conditioning, ventilating, electrical,
lighting facilities, boilers, fired or unfired pressure vessels,
fire alarm and/or smoke detection systems and equipment, interior
nonload-bearing walls, ceilings, floor coverings, windows, doors,
plate glass, landscape maintenance, fences, and signs, located
in, on, about, or adjacent to the Premises. Tenant shall not be
responsible for keeping or maintaining structural portions of the
Premises as well as any other portions for which Landlord is
responsible hereunder, including but not limited to, the
foundation, the roof, skylights, outside or within or below the
foundation or slab plumbing or utility lines, fire sprinklers
and/or standpipe and hose or other fire extinguishing systems,
fire hydrants, fixtures, exterior or load bearing walls, floors,
retaining walls or drainage systems. Tenant shall not cause or
permit any Hazardous Substance to be spilled or released in, on,
under or about the Premises (including through the plumbing or
sanitary sewer system) and shall promptly, at Tenant's expense,
take all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or required, for the
cleanup of any contamination of, and for the maintenance,
security and/or monitoring of the Premises, the elements
surrounding same, or neighboring properties, that was caused or
materially contributed to by Tenant, or pertaining to or
involving any Hazardous Substance and/or storage tank brought
into the Premises by or for Tenant or under its control. Tenant,
in keeping the Premises in good order, condition and repair,
shall exercise and perform good maintenance practices. Tenant's
obligations shall include restorations, replacements or renewals
when necessary to keep the Premises and all improvements thereon
or a part thereof in good order, condition and state of repair.
7.2 Landlord's Obligations. In addition to and without
limiting the generality of the warranties and agreements of
Landlord contained in Sections 2.2 (relating to condition of the
Premises), 2.3 (relating to compliance with covenants,
restrictions and building code), 2.4 representative concerning
the Premises) 9 (relating to destruction of the Premises), 14
(relating to condemnation of the Premises) and any express or
implied warranties of construction of Landlord, it is intended by
the Parties hereto that Landlord shall, at Landlord's sole cost
and expense and at all times maintain in good condition all
structural portions of the Premises, including but not limited
to, the foundation, the roof, skylights, outside or within or
below the foundation or slab plumbing and utility lines, fire
sprinklers and/or standpipe and hose or other fire extinguishing
systems, fire hydrants, fixtures, exterior or load bearing walls,
floors, retaining walls, and drainage systems. If Tenant occupies
the Premises for seven (7) years or more, Tenant may require
Landlord to repaint the exterior of the buildings on the Premises
as reasonably required, but not more frequently than once every
seven (7) years. It is the intention of the Parties that the
terms of this Lease govern the respective obligations of the
Parties as to maintenance and repair of the Premises.
7.3 Utility Installations; Trade Fixtures; Alterations.
(a) Definitions; Consent Required.. The term "Utility
Installations" is used in this Lease to refer to all carpeting,
window coverings, air lines, power panels, electrical
distribution, security, fire protection systems, lighting
fixtures, heating, ventilating, and air conditioning equipment,
plumbing, and non-demising walls in, on or about the Premises.
The term "Trade Fixtures" shall mean Tenant's machinery and
equipment (including but not limited to computer equipment,
storage facilities, communication systems, fences, partitions and
other similar items) that can be removed without doing material
damage to the structural portions of the Premises. The term
"Alterations" shall mean any modification of the improvements on
the Premises from that which are provided by Landlord under the
terms of this Lease, other than Utility Installations or Trade
Fixtures, or nonstructural modifications not visible from the
exterior of the Premises, whether by addition or deletion.
"Tenant Owned Alterations and/or Utility Installations" are
defined as Alterations and/or Utility Installations made by
Tenant that are not yet owned by Landlord as defined in Section
7.4(a). Tenant shall not make any Alterations or Utility
Installations in, on, under or about the Premises without
Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. Tenant may, however, make non-
structural Utility Installations to the interior of the Premises,
as long as they are not visible from the outside, do not involve
puncturing, relocating or removing the roof or any existing walls
or the addition of any new walls and do not result in any
material diminution in value of the Premises without Landlord's
consent.
(b) Consent. Any Alterations or Utility Installations
that Tenant shall desire to make and which require the consent of
the Landlord shall be presented to Landlord in written form with
proposed detailed plans. All consents given by Landlord, whether
by virtue of Section 7.3(a) or by subsequent specific consent,
shall be deemed conditioned upon: (i) Tenant's acquiring all
applicable permits required by governmental authorities, (ii) the
furnishing of copies of such permits together with a copy of the
plans and specifications for the Alteration of Utility
Installation to Landlord prior to commencement of the work
thereof, and (iii) the compliance by Tenant with all conditions
of said permits in a prompt and expeditious manner. Any
alterations or Utility Installations by Tenant during the term of
this Lease shall be done in a good and workmanlike manner, with
good and sufficient materials, and in compliance with all
Applicable Law. Tenant shall promptly upon completion thereof
furnish Landlord with as-built plans and specifications therefor.
Landlord may (but without obligation to do so) condition its
consent to any requested Alteration or Utility Installation that
costs $50,000 or more upon Tenant's providing Landlord with a
lien and completion bond in an amount equal to one and one-half
times the estimated cost of such Alteration or Utility
Installation and/or upon Tenant's posting an additional Security
Deposit with Landlord under Paragraph 36 hereof.
(c) Indemnification. Tenant shall pay, when due, all
claims for labor or materials furnished or alleged to have been
furnished to or for Tenant at or for use on the Premises which
claims are or may be secured by any mechanics's or materialmen's
lien against the Premises or any interest therein. If Tenant
shall, in good faith, contest the validity of any such lien,
claim or demand, then Tenant shall, at its sole expense defend
and protect itself, Landlord and the Premises against the same
and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof against the
Landlord or the Premises. If Landlord shall require, Tenant
shall furnish to Landlord a surety bond satisfactory to Landlord
in an amount equal to one and one-half times the amount of such
contested lien claim or demand (or, if different, the amount
required by statute), indemnifying Landlord against liability for
the same, as required by law for the holding of the Premises free
from the effect of such lien or claim.
7.4 Ownership and Surrender. All of Tenant's Trade
Fixtures shall remain the property of Tenant and may be removed
by Tenant provided that if removal of any of Tenant's Trade
Fixtures damages any part of the Premises, Tenant shall repair
such damage. Any of Tenant's Trade Fixtures which are not
removed within twenty (20) days after the termination of the
Lease shall become the property of Landlord. Tenant's Utility
Installations and any alterations to the Premises shall belong to
the Landlord. Tenant shall surrender the Premises by the end of
the last day of the Lease Term or any earlier termination date,
with all of the Improvements, Alterations and Utility
Installations which cannot be removed without damage to the
Premises, parts and services thereof clean and free of debris and
in good operating order, condition and state of repair, ordinary
wear and tear excepted.
8. INSURANCE; INDEMNITY.
8.1 Payment for Insurance. Regardless of whether the
Landlord or Tenant is the Insuring Party, Tenant shall pay for
all insurance required under this Paragraph 8 except to the
extent of the cost attributable to liability insurance carried by
Landlord in excess of $2,000,000 per occurrence. Premiums for
policy periods commencing prior to or extending beyond the Lease
term shall be prorated to correspond to the Lease term. Payment
shall be made by Tenant to Landlord within ten (10) days
following receipt of an invoice for any amount due.
8.2 Liability Insurance Carried by Tenant. Tenant shall
obtain and keep in force during the term of this Lease a
commercial general liability policy of insurance protecting
Tenant and Landlord (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon,
involving or arising out of the ownership, use occupancy or
maintenance of the Premises and all areas appurtenant thereto.
Such insurance shall be on an occurrence basis providing single
limit coverage in an amount not less than $2,000,000 per
occurrence with an "Additional Insured Managers or Landlords of
Premises" Endorsement. All insurance to be carried by Tenant
shall be primary to and not contributory with any similar
insurance carried by Landlord, whose insurance shall be
considered excess insurance only.
8.3 Property Insurance--Building, Improvements and Rental
Value.
(a) Buildings and Improvements. The Insuring Party
shall obtain and keep in force during the term of this Lease a
policy or policies of fire and extended coverage insurance in the
name of Landlord, with loss payable to Landlord and to the
holders of any mortgages, deeds of trust or ground leases on the
Premises ("Lender(s)"), insuring loss or damage to the Premises.
The amount of such insurance shall be equal to the full
replacement cost of the Premises, as the same shall exist from
time to time, or the amount required by Lenders, but in no event
more than the commercially reasonable and available insurable
value thereof if, by reason of the unique nature or age of the
improvements involved, such latter amount is less than full
replacement cost. If the coverage is available and commercially
appropriate, such policy or policies shall insure against all
risks of direct physical loss or damage (except the perils of
flood and/or earthquake, unless required by a Lender), including
coverage for any additional costs resulting from debris removal
and reasonable amounts of coverage for the enforcement of any
ordinance or law regulating the reconstruction or replacement of
any undamaged sections of the Premises required to be demolished
or removed by reason of the enforcement of any building, zoning,
safety or land use laws as the result of a covered cause of loss.
Said policy or policies shall also contain an agreed valuation
provision in lieu or any coinsurance clause, waiver of
subrogation, and inflation guard protection causing an increase
in the annual property insurance coverage amounts by a factor of
not less than the adjusted U.S. Department of Labor Consumer
Price Index for All Urban Consumers for the city nearest to where
the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $10,000
per occurrence, and Tenant shall be liable for such deductible
amount in the event of an Insured Loss, as defined in Section
9.1(c).
(b) Rental Value. The Insuring Party shall, in
addition, obtain and keep in force during the term of this Lease
a policy or policies in the name of Landlord, with loss payable
to Landlord and Lender(s), insuring the loss of the full rental
and other charges payable by Tenant to Landlord under this Lease
for no less than twelve (12) months (including all real estate
taxes, insurance costs, and any scheduled rental increases).
Said insurance shall provide that in the event the Lease is
terminated by reason of an insured loss, the period of indemnity
for such coverage shall be extended beyond the date of the
completion of repairs or replacement of the Premises, to provide
for one full year's loss of rental revenues from the date of any
such loss. Said insurance shall contain an agreed valuation
provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected
rental income, property taxes, insurance premium costs and other
expenses, if any, otherwise payable by Tenant for the next twelve
(12) month period. Tenant shall be liable for any deductible
amount in the event of such loss.
(c) Adjacent Premises. If the Premises are part of a
group of buildings owned by Landlord which are adjacent to the
Premises, the Tenant shall pay for an increase in the premiums
for the property insurance of such building or buildings if said
increase is caused by Tenant's acts, omissions, use or occupancy
of the Premises.
(d) Tenant's Improvements. If the Landlord is the
Insuring Party, the Landlord shall not be required to insure
Tenant Owned Alterations or Utility Installations unless the item
in question has become the property of Landlord under the terms
of this Lease. If Tenant is the Insuring Party, the policy
carried by Tenant under this Section 8.3 shall insure Tenant
Owned Alterations or Utility Installations.
8.4 Tenant's Property Insurance. Subject to the
requirements of Section 8.5, Tenant at its cost shall either by
separate policy or, by endorsement to a policy already carried,
maintain insurance coverage on all of Tenant's personal property,
Tenant Owned Alterations and Utility Installations in, on, or
about the Premises similar in coverage to that carried by the
Insuring Party under Section 8.3. Such insurance shall be full
replacement cost coverage with a deductible of not to exceed
$1,000 per occurrence. The proceeds from any such insurance
shall be used by Tenant for the replacement of personal property
or the restoration of Tenant Owned Alterations and Utility
Installations. Tenant shall be the Insuring Party with respect
to the insurance required by this Section 8.4 and shall provide
Landlord with written evidence that such insurance is in force.
8.5 Insurance Policies. Insurance required hereunder shall
be in companies maintaining at the commencement of the policy
term a "General Policyholders Rating" of at least B+, V, or such
other rating as may be required by a Lender having a lien on the
Premises, as set forth in the most current issue of "Best's
Insurance Guide". If Tenant is the Insuring Party, Tenant shall
cause to be delivered to Landlord certificates evidencing the
existence and amounts of such insurance with the insureds and
loss payable clauses as required by this Lease. The certificates
shall provide that Landlord shall receive thirty (30) days prior
written notice of cancellation. Tenant shall at least thirty
(30) days prior to the expiration of such policies, furnish
Landlord with evidence of renewals or "insurance binders"
evidencing renewal thereof, or Landlord may order such insurance
and charge the cost thereof to Tenant, which amount shall be
payable by Tenant to Landlord upon demand. If the Insuring Party
shall fail to procure and maintain the insurance required to be
carried by the Insuring Party under this Paragraph 8, the other
Party may, but shall not be required to, procure and maintain the
same, but at Tenant's expense.
8.6 Waiver of Subrogation. Without affecting any other
rights or remedies, Tenant and Landlord ("Waiving Party") each
hereby releases and relieves the other, and waive their entire
right to recover damages (whether in contract or in tort) against
the other, for loss of or damage to the Waiving Party's property
arising out of or incident to the perils required to be insured
against under Paragraph 8. The effect of such releases and
waivers of the right to recover damages shall not be limited by
the amount of insurance carried or required, or by any
deductibles applicable thereto.
8.7 Indemnity. Except for Landlord's misconduct,
negligence and/or breach of express warranties and the provisions
of this Lease, Tenant shall indemnify, protect, defend and hold
harmless the Premises, Landlord and its agents from and against
any and all claims, loss of rents and/or damages, costs, liens,
judgments, penalties, permits, reasonable attorney's and
consultant's fees, expenses and/or liabilities arising out of,
involving, or in dealing with the occupancy of the Premises by
Tenant, the conduct of Tenant's business, any act, omission or
neglect of Tenant, its agents, contractors, employees or
invitees, and out of any Default or Breach by Tenant in the
performance in a timely manner of any obligation on Tenant's
part to be performed under this Lease. In case any action or
proceeding be brought against Landlord by reason of any of the
foregoing matters, Tenant upon notice from Landlord shall defend
the same at Tenant's expense by counsel reasonably satisfactory
to Landlord and Landlord shall cooperate with Tenant in such
defense.
8.8 Exemption of Landlord from Liability. Except for
Landlord's negligence, intentional act, breach of this Lease or
misconduct, Landlord shall not be liable for injury or damage to
the person or goods, wares, merchandise or other property of
Tenant, Tenant's employees, contractors, invitees, customers, or
any other person in or about the Premises, whether such damage or
injury is caused by or results from fire, steam, electricity,
gas, water or rain, or from the breakage, leakage, obstruction or
other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any
other cause, whether the said injury or damage results from
conditions arising upon the Premises or upon other portions of
the building of which the Premises are a part, or from other
sources or places, and regardless of whether the cause of such
damage or injury or the means of repairing the same is accessible
or not.
9. DAMAGE OR DESTRUCTION.
9.1 Fire and Other Casualty. In the event of total or
partial destruction of the Premises by fire or other casualty,
Landlord agrees to promptly restore and repair the Premises to
the same or equivalent condition as existed as of the
Commencement Date, but not including Tenant's Trade Fixtures and
other personal property which were not a part of the initial
construction by Landlord; provided, however, that Landlord's
obligation to restore and repair the Premises shall be subject to
the sufficiency of insurance proceeds for restoration and repair
and subject to the availability of such replacement insurance
proceeds from any current or subsequent bona-fide mortgagee.
Notwithstanding the foregoing, if the Premises are (i) so
destroyed that they cannot be repaired or rebuilt within two
hundred forty (240) days after the date of the damage or
destruction; or (ii) destroyed by a casualty which is not covered
by the insurance required hereunder, then, in the case of a
clause (i) casualty, either Landlord or Tenant may, or, in the
case of a clause (ii) casualty, then Landlord may, upon thirty
(30) days written notice to the other party, terminate and cancel
this Lease; and all further obligations hereunder shall thereupon
cease and terminate as of the earlier to occur of (i) the date of
termination, or (ii) the expiration of the rent loss insurance
benefits described herein. Landlord shall notify Tenant in
writing within ninety (90) days of the date of the damage or
destruction as to whether or not Landlord intends to restore and
repair the Premises and the estimated completion time thereof.
Any proceeds from the fire and extended coverage insurance
policies not utilized (i) by Landlord in restoring or repairing
the Premises or (ii) to reimburse Landlord for any and all
reasonable out-of-pocket costs and expenses incurred by Landlord
in connection with such damage or destruction shall become the
sole property of Tenant; provided, however, that Landlord shall
oversee the restoration and repair, and Tenant shall have no
rights with respect thereto other than its right to employ an
inspecting architect or engineer who will have the same rights as
the Inspecting Architect under the Construction Addendum hereto.
9.2 Damage Near End of Term. If at any time during the
last three (3) years of the Lease Term there is damage for which
the cost to repair exceeds 25% of the Base Rent which is to be
paid for the remainder of the Term, whether or not insurance
proceeds are available to restore the Premises, Landlord may, at
Landlord's option, terminate this Lease effective as of the date
of occurrence of such damage by giving written notice to Tenant
of Landlord's election to do so within thirty (30) days after the
date of occurrence of such damage. Provided, however, if Tenant
at that time has an exercisable option to extend this Lease or to
purchase the Premises, then Tenant may preserve this Lease by,
within twenty (20) days following the occurrence of the damage,
or before the expiration of the time provided in such option for
its exercise, whichever is earlier ("Exercise Period"),
exercising such option. If Tenant duly exercises such option
during said Exercise Period and provides Landlord with funds (or
adequate assurance thereof) to cover any shortage in insurance
proceeds, Landlord shall, at Landlord's expense, repair such
damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Tenant fails to exercise
such option and provide such funds or assurance during said
Exercise Period, then Landlord may at Landlord's option terminate
this Lease as of the expiration of said sixty (60) day period
following the occurrence of such damage by giving written notice
to Tenant of Landlord's election to do so within ten (10) days
after the expiration of the Exercise Period, notwithstanding any
term or provision in the grant of option to the contrary.
9.3 Abatement of Rent; Tenant's Remedies.
(a) In the event the damage described in Section 9.1 of
this Lease is to be restored, the Base Rent, Real Property Taxes,
insurance premiums, and other charges, if any, payable by Tenant
hereunder for the period during which such damage, its repair or
the restoration continues (not to exceed the period and amount
for which rental value insurance is provided or paid for by
Tenant), shall be abated in proportion to the degree to which
Tenant's use of the Premises is impaired.
(b) If Landlord shall be obligated or has elected to
repair or restore the Premises under the provisions of Section
9.1 and shall not commence, in a substantial and meaningful way,
and thereafter diligently pursue the repair or restoration of the
Premises within ninety (90) days after such obligation shall
accrue or such election is made, Tenant may, at any time prior to
the commencement of such repair or restoration, give written
notice to Landlord and to any Lenders of which Tenant has actual
notice of Tenant's election to terminate this Lease on a date not
less than sixty (60) days following the giving of such notice.
If Tenant gives such notice to Landlord and such Lenders and such
repair or restoration is not commenced within thirty (30) days
after receipt of such notice and thereafter diligently pursued,
this Lease shall terminate on the date specified in said notice
as of the date of the casualty. If Landlord or a Lender
commences the repair or restoration of the Premises within thirty
(30) days after receipt of such notice, this Lease shall continue
in full force and effect. "Commence" as used in this Paragraph
shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual
work on the Premises, whichever first occurs, provided repairs
and restoration are thereafter diligently pursued to completion.
9.4 Hazardous Substance Conditions. "Hazardous Materials"
shall mean any Hazardous Substances, including (i) any solid,
liquid or gaseous waste, substance or emission or any combination
thereof which may cause or significantly contribute to an
increase in mortality or in serious illness or pose the risk of a
substantial present or potential hazard to human health, to the
environment or otherwise to animal or plant; (ii) any chemical,
material or substance now or hereafter defined as or included in
the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "toxic substances," or words of similar
import under any applicable local, state or federal law or under
the regulations adopted or publications promulgated pursuant
thereto, including without limitation hazardous substances and
materials described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the
Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act, as amended; and the Federal Water
Pollution Control Act, as amended (collectively "Hazardous
Material Laws"); and (iii) explosives, radioactive materials,
hazardous wastes, medical wastes or substances, toxic wastes or
substances or any other materials or pollutants which cause the
Premises to be in violation of any Hazardous Material Laws.
Tenant shall not in any manner use, maintain or allow the use or
maintenance of the Premises in violation of any law, ordinance,
statute, regulation, rule or order (collectively "Laws") of any
governmental authority, including but not limited to Hazardous
Material Laws and Laws governing zoning, health, safety
(including fire safety), occupational hazards, and pollution and
environmental control. Tenant shall not use, maintain or allow
the use or maintenance of the Premises or any part thereof to
generate, treat, store, dispose of, transfer, release, convey or
recover Hazardous Materials nor shall Tenant otherwise, in any
manner, possess or allow the possession of any Hazardous
Materials on or about the Premises; provided, however, any
Hazardous Material lawfully permitted and generally recognized as
necessary and appropriate for use in connection with Tenant's
proposed uses of the Premises as described in Section 6.1 hereof
may be stored and used on the Premises so long as (i) such
storage and use is in the ordinary course of Tenant's business
permitted under this Lease; (ii) such storage and use is
performed in compliance with all applicable Laws and in
compliance with the highest standards prevailing in the industry
for the storage and use of such materials; (iii) Tenant delivers
prior written notice to Landlord of the identity of and
information regarding such materials as Landlord may require;
and (iv) Landlord consents thereto or the use is already
permitted under Section 6.1. Tenant shall immediately notify
Landlord of the presence or suspected presence of any Hazardous
Materials on or about the Premises and shall deliver to Landlord
any notice received by Tenant relating thereto.
Landlord and its agents shall have the right, but not the
duty, to inspect the Premises and conduct tests thereon at any
time to determine whether or the extent to which there is
Hazardous Material on the Premises. Landlord shall have the
right immediately to enter upon the Premises to remedy any
contamination found thereon. In exercising its rights herein,
Landlord shall use reasonable efforts to minimize interference
with Tenant's business but such entry shall not constitute an
eviction of Tenant, in whole or in part, and Landlord shall not
be liable for any interference, loss, or damage to Tenant's
property or business caused thereby. If any lender or
governmental agency shall ever require testing to ascertain
whether there has been a release of Hazardous Materials, Tenant,
at its expense, shall cause such tests to be made if such
requirement arose in whole or in part because of Tenant's use of
the Premises. However, with respect to any entity other than a
governmental agency, such testing shall be required no more
frequently than once in any twenty-four (24) month period, unless
the party(ies) requesting same have a reasonable belief that a
discharge or release of Hazardous Materials has occurred on or in
the Premises, Tenant shall execute affidavits, representations
and the like from time to time, at Landlord's request, concerning
Tenant's best knowledge and belief regarding the presence of any
Hazardous Materials on the Premises or Tenant's intent to store
or use Hazardous Materials on the Premises. Tenant shall
indemnify and hold harmless landlord from any and all claims,
loss, liability, costs, expenses or damage, including attorneys'
fees and cost of remediation, incurred by Landlord in connection
with the presence of any Hazardous Materials on the Premises,
whether or not such Hazardous Materials were brought onto the
Premises by Tenant, and regardless of how such contamination
occurred. Notwithstanding the foregoing, Tenant shall not be
responsible or liable for contamination caused by the sole and
direct recklessness or wilful misconduct of Landlord or
Landlord's agents, representatives or employees or contamination
of the subsurface or groundwater due to causes beyond Tenant's
Control. The covenants and obligations of Tenant hereunder shall
survive the expiration or earlier termination of this Lease.
Notwithstanding the foregoing, Tenant shall not be liable
for any undisclosed or unknown Hazardous Materials that existed
in the Premises on the Commencement Date of the Lease, except to
the extent that activities by Tenant, its employees or agents,
cause an aggravation of the hazard pertaining to such Hazardous
Materials; provided, however, that Tenant shall not be liable
for the aggravation of the hazard pertaining to any Hazardous
Materials, the presence of which in the Premises is unknown to
Tenant, but is known by Landlord at the time and undisclosed to
Tenant. For example, if asbestos exists in the Premises on the
Commencement Date, that would not constitute a default by Tenant,
but any subsequent actions by Tenant that caused the asbestos to
become friable would constitute a default by Tenant, except to
the extent that the presence of asbestos in the Premises was
unknown to Tenant and was known to Landlord at the time and
undisclosed to Tenant.
Landlord represents and warrants to Tenant that, to
Landlord's knowledge (1) no Hazardous Material, including without
limitation, asbestos-containing materials and electrical
transformers or ballasts containing PCBs, are present, or were
installed, exposed, released or discharged in, on or under the
property at any time during or prior to Landlord's ownership
thereof, and no prior owner or occupant of the Premises has used
Hazardous Materials therein (except for ordinary office use in
compliance with all applicable laws, rules and regulations), (2)
no storage tanks for gasoline or any other Hazardous Materials
are or were located on the property at any time during or prior
to Landlord's ownership thereof and (3) the property and the
Premises have been used and operated in compliance with all
applicable local, state and federal laws, ordinances, rules,
regulations and orders with respect to the environment and public
health and safety, and Landlord has all permits and
authorizations required for the use and operation of the
property.
If at any time Tenant or Landlord shall become aware, or
have reasonable cause to believe, that any Hazardous Material has
been released or has otherwise come to be located on or beneath
the Premises, such party shall, immediately upon discovering the
release or the presence or suspected presence of the Hazardous
Material, give written notice of that condition to the other
party. In addition, the party first learning of the release or
presence of Hazardous Material on or beneath the Premises, shall
immediately notify the other party in writing of (i) any
enforcement, cleanup, removal or other governmental or regulatory
action instituted, completed or threatened pursuant to any
Hazardous Material Law and (ii) any claims made or threatened by
any person against Landlord, Tenant, or the Premises, arising out
of or resulting from reports made to any local, state or federal
environmental agency arising out of or in connection with any
Hazardous Material.
Landlord shall indemnify, defend (by counsel acceptable to
Tenant), protect and hold harmless Tenant and each of Tenant's
partners, directors, officers, employees, agents, attorneys,
successors and assigns from and against any and all claims,
liabilities, penalties, fines, judgments, forfeitures, losses,
costs of expenses (including attorney's fees, consultants' fees
and expert fees) for the death of, or injury to, any person or
damage to any property whatsoever, arising from, or caused in
whole or in part, directly or indirectly, by (i) the presence in,
on, under or about the Premises, or any discharge or release in
or from the Premises, of any Hazardous Material prior to the
Commencement Date, except to the extent that any such presence,
discharge or release is caused by or aggravated by Tenant's
activities or presence on the Premises or (ii) Landlord's failure
to comply with any Hazardous Material Law prior to the
Commencement Date. Tenant shall indemnify, defend (by counsel
acceptable to Landlord), protect and hold harmless Landlord, and
each of Landlord's partners, directors, officers, employees,
agents, attorneys, successors, assigns, from and against any and
all claims, liabilities, penalties, fines, judgments,
forfeitures, losses, costs and expenses (including attorney's
fees, consultants' fees and expert fees) for the death of or
injury to any person or damage to any property whatsoever,
arising from or caused in whole or in part, directly or
indirectly, by (i) the presence in, on, under or about the
Premises, or any discharge or release in or from the Premises, of
any Hazardous Material from and after the Commencement Date,
except to the extent that any such presence, discharge or release
is caused solely by Landlord's activities on the Premises or (ii)
Tenant's failure to comply with any Hazardous Material Law, to
the extent that compliance is required on account of Tenant's
activities on the Premises and not to the extent that compliance
is required solely because Tenant, as the occupant of the
Premises, is held accountable for Hazardous Material that exists
on, in, under or about the Premises, or released from the
Premises prior to the Commencement Date, and not aggravated by
Tenant, and which are not caused by or released by Tenant. The
indemnity obligation created hereunder shall include, without
limitation, and whether foreseeable or unforeseeable, any and all
costs incurred in connection with any site investigation
(including but not limited to "Phase I", "Phase II", feasibility
studies, or other site or remedial assessments, or other
procedures relating to the implementation of a corrective action
plan or a site cleanup), and any and all costs for repair,
cleanup, detoxification or decontamination, or other remedial
action of the Premises. The obligations of the parties hereunder
shall survive the expiration or earlier termination of this Lease
and any extensions thereof.
9.5 Termination - Advance Payments. Upon termination of
this Lease pursuant to this Paragraph 9, an equitable adjustment
shall be made concerning advance Base Rent and any other advance
payments made by Tenant to Landlord. Landlord shall, in
addition, return to Tenant so much of Tenant's Security Deposit,
if any, as has not been, or is not then required to be, used by
Landlord under the terms of this Lease.
9.6 Waive Statutes. Landlord and Tenant agree that the
terms of this Lease shall govern the effect of any damage to or
destruction of the Premises with respect to the termination of
this Lease and hereby waive the provisions of any present or
future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 Payment of Taxes. Tenant shall pay the Real Property
Taxes, as defined in Section 10.2, payable and applicable to the
Premises during the term of this Lease. All such payments shall
be made at least ten (10) days prior to the delinquency date of
the applicable installment. Tenant shall promptly furnish
Landlord with satisfactory evidence that such taxes have been
paid. If any such taxes to be paid by Tenant shall cover any
period of time prior to or after the expiration or earlier
termination of the term hereof, Tenant's share of such taxes
shall be equitably prorated to cover only the period of time
within the tax fiscal year this Lease is in effect, and Landlord
shall reimburse Tenant for any overpayment after such proration.
If Tenant shall fail to pay any Real Property Taxes required by
this Lease to be paid by Tenant, Landlord shall have the right to
pay the same, and Tenant shall reimburse Landlord therefor upon
demand. In such event, Tenant shall also be obligated to pay to
Landlord, together with the amount of Real Property Taxes,
interest as provided in Section 19 hereof from the date such sum
was advanced by Landlord until the date paid by Tenant.
10.2 Definition of "Real Property Taxes." As used herein,
the term "Real Property Taxes" shall include any form of real
estate tax or assessment, general or special, and any license
fee, commercial rental tax, improvement bond or bonds, levy or
tax (other than inheritance, personal income or estate taxes)
imposed upon the Premises by any authority having the direct or
indirect power to tax, including any city, state or federal
government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, levied against
any legal or equitable interest of Landlord in the Premises or in
the real property of which the Premises are a part, Landlord's
right to rent or other income therefrom, and/or Landlord's
business of leasing the Premises. The term "Real Property Taxes"
shall also include any tax, fee, levy, assessment or charge, or
any increase therein, imposed by reason of events occurring, or
changes in applicable law taking effect, during the term of this
Lease, as well as any special assessment, fee, or other charge
required by any owner's association having jurisdiction over the
Premises as being part of a business park.
10.3 Joint Assessment. If the Premises are not separately
assessed, Tenant's liability shall be an equitable proportion of
the Real Property Taxes for all of the land and improvements
included within the tax parcel assessed, such proportion to be
determined by Landlord for the respective valuations assigned in
the assessor's work sheets or such other information as may be
reasonably available. Landlord's reasonable determination
thereof, in good faith, shall be conclusive.
10.4 Personal Property Taxes. Tenant shall pay prior to
delinquency all taxes assessed against and levied upon Tenant
Owned Alterations. Utility Installations, Trade Fixtures,
furnishings, equipment and all personal property of Tenant
contained in the Premises or elsewhere. When possible, Tenant
shall cause its Trade Fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from
the real property of Landlord. If any of Tenant's said personal
property shall be assessed with Landlord's real property, Tenant
shall pay Landlord the taxes attributable to Tenant within ten
(10) days after receipt of a written statement setting forth the
taxes applicable to Tenant's property or, at Landlord's option,
as provided in Section 10.1(b).
10.5 Escrow During Final Year of Lease Term. Unless Tenant
shall have exercised an applicable renewal option, Landlord may,
at Landlord's option, require Tenant to establish an escrow for
the payment of Real Property Taxes allocable to the final year of
the Lease Term on terms and in an amount to be established in
accordance with standard industry practice.
11. UTILITIES.
Tenant shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services
supplied to the Premises, together with any taxes thereon. If
any such services are not separately metered to Tenant, Tenant
shall pay a reasonable proportion of all charges jointly metered
with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 Tenant's Right to Assign or Sublet. Subject to the
provisions of Section 1.7 as to use of the Premises, Tenant shall
not assign this Lease in whole or in part, or sublet the Premises
in whole or in part, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, Tenant may, without
Landlord's consent, assign or sublet the Premises to (1) any
affiliate of Tenant or, (ii) any independent contractor
performing services for Tenant, provided that (A) the total area
occupied by such independent contractor and its operations does
not exceed ten percent (10%) of the Premises, and (b) such
assignee or sublessee shall comply with all of the terms and
provisions set forth in this Lease. For purposes of this Lease
"Affiliate" means any person, firm or corporation directly or
indirectly controlling, controlled by, or under common control
with Tenant; including without limitation, any officer or
director thereof, or any shareholder owning more than ten percent
(10%) of the outstanding stock thereof, or any parent, subsidiary
or related or affiliated corporation, subsidiary of Tenant and
entity created by merger with, reorganization of, or
recapitalization of Tenant or to an entity which acquires Tenant.
Landlord and Tenant acknowledge and agree that the foregoing
provisions have been freely negotiated by the parties hereto and
that Landlord would not have entered into this Lease without
Tenant's consent to the terms of this Paragraph.
12.2 Tenant's Continuing Obligations; Excess Rent. No
assignment, transfer, mortgage, sublease or other encumbrance,
whether or not approved, and no indulgence granted by Landlord to
any assignee or subtenant, shall in any way impair the continuing
primary liability (which after an assignment shall be joint and
several with the assignee) of Tenant hereunder, and no approval
in a particular instance shall be deemed to be a waiver of the
obligation to obtain Landlord's approval in any other case. If
for any assignment or sublease requiring the approval of
Landlord, Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in
excess of the rent called for hereunder, or in the case of a
sublease of part of the Premises, in excess of the portion of
such rent fairly allocable to such part, after appropriate
adjustments to assure that all other payments called for
hereunder are appropriately taken into account, and after
subtracting any expenses incurred in connection with such
assignment or subletting, Tenant shall pay to Landlord as
additional rent one-half (1/2) of the excess of each such payment
of rent or other consideration received by Tenant promptly after
its receipt.
13. DEFAULT; BREACH; REMEDIES.
13.1 Default; Breach. Landlord and Tenant agree that if an
attorney is consulted by Landlord in connection with a Tenant
Default or Breach (as hereinafter defined), $150.00 is a
reasonable sum per such occurrence for legal services and costs
in the preparation and service of a notice of Default and that
Landlord may include the cost of such services and costs in said
notice as rent due and payable to cure said Default. A "Default"
is defined as a failure by the Tenant to observe, comply with or
perform any of the terms, covenants, conditions or rules
applicable to Tenant under this Lease. A "Breach" is defined as
the occurrence of any one or more of the following Defaults, and,
where a grace period for cure after notice is specified herein,
the failure by Tenant to cure such Default prior to the
expiration of the applicable grace period, shall entitle Landlord
to pursue the remedies set forth in Section 13.2 and/or 13.3:
(a) Except as expressly otherwise provided in this
Lease, the failure by Tenant to make any payment of Base Rent or
any other monetary payment required to be made by Tenant
hereunder, whether to Landlord or to a third party, as and when
due (other than monetary payments other than Base Rent which are
disputed in good faith by Tenant, which must be paid, if
applicable, within five (5) days after resolution of the
dispute), where any such failure continues for a period of ten
(10) days following written notice thereof by or on behalf of
Landlord to Tenant.
(b) Except as expressly otherwise provided in this
Lease, the failure by Tenant to provide Landlord with reasonable
written evidence (in duly executed original form, if applicable)
of (i) compliance with Applicable Law pursuant to Section 6.3,
(ii) the recision of an unauthorized assignment or subletting
pursuant to Section 12.1, (iii) a Tenancy Statement pursuant to
Paragraphs 16 or 37, (iv) the subordination or non-subordination
of this Lease pursuant to Paragraph 30, or (v) any other
documentation or information which Landlord may reasonably
require of Tenant under the terms of this Lease, where any such
failure continues for a period of thirty (30) days following
written notice by or on behalf of Landlord to Tenant.
(c) A Default by Tenant as to the terms, covenants,
conditions or provisions of this Lease that are to be observed,
complied with or performed by Tenant, other than those described
in subparagraphs (a) or (b) above, where such Default continues
for a period of thirty (30) days after written notice thereof by
or on behalf of Landlord to Tenant; provided, however, that if
the nature of Tenant's Default is such that more than thirty (30)
days are reasonably required for its cure, then it shall not be
deemed to be a Breach of this Lease by Tenant if Tenant commences
such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(d) The occurrence of any of the following events:
(i) the making by Tenant of any general arrangement or assignment
for the benefit of creditors and the same is not cured or undone
to Landlord's satisfaction within sixty (60) days; (ii) Tenant's
becoming a "debtor" as defined in 11 U.S.C. 101 or any successor
statute thereto (unless, in the case of a petition filed against
Tenant, the same is dismissed within ninety (90) days; (iii) the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not
restored to Tenant within ninety (90) days; or (iv) the
attachment, execution or other judicial seizure of substantially
all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged
within ninety (90) days; provided, however, in the event that
any provision of this Subsection (d) is contrary to any
applicable law, such provision shall be of no force or effect,
and not affect the validity of the remaining provisions.
13.2 Remedies. Upon the occurrence of any Breach as defined
above, Landlord shall have the following rights and remedies, in
addition to those allowed by law, any one or more of which may be
exercised without further notice to or demand upon Tenant:
(a) Landlord may re-enter the Premises and cure any
default of Tenant, in which event Tenant shall reimburse Landlord
as additional rent for any costs and expenses which Landlord may
incur to cure such default; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason
of Landlord's action, regardless of whether caused by Landlord's
negligence or otherwise.
(b) Landlord may terminate this Lease as of the date
of such default, in which event (i) neither Tenant nor any person
claiming under or through Tenant shall thereafter be entitled to
possession of the Premises, and Tenant shall immediately
thereafter surrender the Premises to Landlord; (ii) Landlord may
re-enter the Premises and dispossess Tenant or any other
occupants of the Premises, by summary proceedings, ejectment or
otherwise, and may remove their effects, without prejudice to any
other remedy which Landlord may have for possession or arrearages
in rent and without being liable for any damage therefor or for
trespass; (iii) notwithstanding the termination of this Lease,
Landlord may declare the amount by which all rent which would
have been due under this Lease for the balance of the Lease Term
exceeds the amount of the rent loss which Tenant proves could
reasonably be avoided, discounted at the rate of five percent
(5%) per annum, to be immediately due and payable, whereupon
Tenant shall be obligated to pay the same to Landlord, together
with any unpaid rent at the time of termination and all loss or
damage which Landlord may sustain by reason of Tenant's default
and such termination, including without limitation, the expenses
set forth in clause (v) below; (iv) alternatively, at the option
of Landlord, and notwithstanding such termination, Tenant shall
remain liable to Landlord for damages in the amount by which the
sum of (A) the unpaid Base Rent for the balance of the Lease Term
plus (B) the reasonably estimated amount of Additional Rent that
would be paid during the balance of the Lease Term exceeds the
rental income, if any, arising out of the re-letting of the
Premises by Landlord subsequent to the termination after
deducting all of Landlord's expenses in re-letting the Premises,
including without limitation, the expenses set forth in clause
(v) below; and (v) notwithstanding the termination of this
Lease, Landlord shall be entitled to recover from Tenant all
damages incurred by Landlord because of Tenant's default,
including without limitation the cost of recovering possession of
the Premises; expenses of re-letting including, but not limited
to necessary renovation and alteration of the Premises;
reasonable real estate commission; and reasonable attorney's
fees. The liabilities and remedies specified in this paragraph
shall survive the termination of this Lease.
(c) Landlord may, without terminating this Lease, re-
enter the Premises and dispossess Tenant or any other occupants
thereof by summary proceedings, ejectment or otherwise, and may
remove their effects, without prejudice to any other remedy which
Landlord may have for possession or arrearages in rent and
without being liable for any damage therefore or for trespass;
and Landlord may re-let all or any part of the Premises for a
term different from that which would otherwise have constituted
the balance of the term of this Lease and for rent and on terms
and conditions different from those contained herein, whereupon
Tenant shall be obligated to pay to Landlord as liquidated
damages the difference between the rent provided for herein and
that provided for in any lease covering a subsequent re-letting
of the Premises, for the period which would otherwise have
constituted the balance of the term of this Lease, together with
all of Landlord's reasonable costs and expenses for preparing the
Premises for re-letting (including without limitation any excess
expense for removing any of Tenant's special use improvements),
including all repairs, tenant finish improvements (to the extent
not amortized over the term of the re-letting and recovered by
Landlord as part of the rent), reasonable brokers' and attorneys'
fees, and all loss or damage which Landlord may sustain by reason
of such re-entry and re-letting. No such re-letting shall be
deemed an acceptance of the surrender of this Lease.
(d) Landlord may xxx for injunctive relief or to
recover damages for any loss resulting from the breach.
13.3 Late Charges. Tenant hereby acknowledges that late
payment by Tenant to Landlord of rent and other sums due
hereunder will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult
to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be
imposed upon Landlord by the terms of any ground lease, mortgage
or trust deed covering the Premises. Accordingly, if any monthly
installment of rent due from Tenant shall not be received by
Landlord or Landlord's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to
Tenant, Tenant shall pay to Landlord a late charge equal to three
percent (3%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate
of the costs Landlord will incur by reason of late payment by
Tenant. Acceptance of such late charge by Landlord shall in no
event constitute a waiver of Tenant's Default or Breach with
respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments
of Base Rent, then notwithstanding Section 4.1 or any other
provision of this Lease to the contrary, Base Rent shall, at
Landlord's option, become due and payable quarterly in advance.
13.4 Landlord Default. It shall be a default under and
breach of this Lease by landlord if it shall fail to perform or
observe any term, condition, covenant or obligation required to
be performed or observed by it under this Lease for a period of
thirty (30) days after written notice thereof from Tenant.
However, that if the term, condition, covenant or obligation to
be performed by Landlord is of such nature that the same cannot
reasonably be performed within such thirty-day period, such
default shall be deemed to have been cured if Landlord commences
such performance within said thirty-day period and thereafter
diligently completes the same. In this regard, if Landlord shall
fail to perform any obligation on Landlord's part to be performed
hereunder, Tenant may, after the notice required above or without
notice if in Tenant's judgment an emergency shall exist, perform
such obligation at Landlord's expense and, on written notice to
Landlord, Tenant may demand reimbursement therefor or part
thereof, from Landlord, and Landlord shall promptly reimburse
Tenant after such notice and demand. Upon the occurrence of any
such uncured default, Tenant may xxx for injunctive relief or to
recover reimbursement for funds reasonably expended in curing or
for damages for any loss resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or withhold or
xxxxx any rent due hereunder unless such uncured default shall
work a constructive eviction on Tenant, or render the Building
untenable.
14. CONDEMNATION.
If all or any part of the Premises shall be acquired by the
exercise of eminent domain by any public or quasi-public body
with the result that the Premises shall become unusable by Tenant
for its then-current use, this Lease may be terminated by Tenant
by giving written notice to Landlord within fifteen (15) days
after possession of the Premises or part thereof is so taken.
Tenant shall have no claim against Landlord on account of any
such acquisition for the value of any unexpired lease remaining
after possession of the Premises is taken. All damages awarded
shall belong to and be the sole property of Landlord; provided,
however, that Tenant shall be entitled to any award expressly
made to Tenant for the cost or removal of Tenant's stock,
equipment and fixtures and other moving expenses.
15. BROKER'S FEE.
Tenant and Landlord each represent and warrant to the other
that it has had no dealings with any person, firm, broker or
finder in connection with the negotiation of this Lease and/or
the consummation of the transaction contemplated hereby, and that
no broker or other person, firm or entity other than said named
Brokers is entitled to any commission or finder's fee in
connection with said transaction. Tenant and Landlord do each
hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges
which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings or actions of the
indemnifying Party, including any costs, expenses, attorneys'
fees reasonably incurred with respect thereto.
16. TENANCY STATEMENT.
Each Party (as "Responding Party") shall within ten (10)
days after written notice from the other Party (the "Requesting
Party") execute, acknowledge and deliver to the Requesting Party
a statement in writing in the form attached hereto as Exhibit B.
17. LANDLORD'S LIABILITY.
The term "Landlord" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises,
or, if this is a sublease, of the Tenant's interest in the prior
lease. If Landlord shall fail to perform or observe any term,
condition, covenant or obligation required to be performed or
observed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord,
Tenant agrees that it shall look solely to Landlord's right,
title and interest in and to the Premises for the collection of
such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for
the satisfaction of Tenant's judgment and that Landlord shall not
be liable for any deficiency.
The references to "Landlord" in this Lease shall be limited
to mean and include only the owner or owners, at the time, of the
fee simple interest in the Premises. In the event of a sale or
transfer of such interest (except a mortgage or other transfer as
security for a debt), the "Landlord" named herein, or, in the
case of a subsequent transfer, the transferor, shall, after the
date of such transfer, be automatically released from all
liability for the performance or observance of any term,
condition, covenant or obligation required to be performed or
observed by Landlord hereunder; and the transferee shall be
deemed to have assumed all of such terms, conditions, covenants
and obligations.
18. SEVERABILITY.
The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS.
Any monetary payment due Landlord hereunder, other than late
charges, not received by Landlord within thirty (30) days
following the date on which it was due, shall bear interest from
the thirty-first (31st) day after it was due at the rate equal to
the prime rate in effect on the date such payment was due as
established by Citibank, N.A., plus five percent (5%), but not
exceeding the maximum rate allowed by law, in addition to the
late charge provided for in Section 13.3.
20. TIME OF ESSENCE.
Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under
this Lease.
21. RENT DEFINED.
All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS.
This Lease contains all agreements between the Parties with
respect to any matter mentioned herein, and no other prior or
contemporaneous agreement or understanding shall be effective.
23. NOTICES.
23.1 All notices required or permitted by this Lease shall
be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular,
certified or registered mail or U.S. Postal Service Express Mail,
with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this
Paragraph 23. The addresses noted below shall be that Party's
address for delivery or mailing of notice purposes:
If to Tenant: If to Landlord:
Apria Healthcare, Inc. Xx. Xxxxx Xxxxxxxxxxx #0, X.X.
0000 Xxxxxx Avenue 00000 X. Xxxxxxxx Xxxxxx,Xxx. 000
Xxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxx 00000
Attention: Director of Real Estate
With a copy to: With a copy to:
Apria Healthcare, Inc. Landlord's Mortgagee if requested
Regional Headquarters in writing by Landlord.
0000 Xxxxxxxxxx Xxxxxxx, X. Xx.
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President
With a copy to:
Apria Healthcare, Inc.
[Premises Address]
Either Party may, by written notice to the other specify a
different address for notice purposes, except that upon Tenant's
taking possession of the Premises, the Premises shall constitute
Tenant's address for the purpose of mailing or delivering notices
to Tenant. A copy of all notices required or permitted to be
given to Landlord hereunder shall be concurrently transmitted to
such party or parties as such addresses as Landlord may from time
to time hereafter designate by written notice to Tenant.
23.2 Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of
delivery shown on the receipt card or if no delivery date is
shown, the postmark thereon. Notice delivered by United States
Express Mail or overnight courier that guarantees next day
delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the United States Postal Service or
courier. If any notice is transmitted by facsimile transmission
or similar means, the same shall be deemed served or delivered
upon telephone confirmation of receipt of the transmission
thereof, provided a copy is also delivered via courier or mail,
but such subsequent delivery by courier or mail shall not affect
the time at which such notice is deemed to be served or
delivered. If notice is received on a Sunday or legal holiday,
it shall be deemed received on the next business day.
24. WAIVERS.
No waiver by Landlord of the Default or Breach of any term,
covenant or condition hereof by Tenant, shall be deemed a waiver
of any other term, covenant or condition hereof, or of any
subsequent Default or Breach by Tenant of the same or of any
other term, covenant or condition hereof.
25. RECORDING.
Either Landlord or Tenant shall, upon request of the other,
execute, acknowledge and deliver to the other a short form
memorandum of this Lease for recording purposes. The Party
requesting recordation shall be responsible for payment of any
fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER.
Tenant has no right to obtain possession of the Premises or
any part thereof beyond the expiration or earlier termination of
this Lease.
27. CUMULATIVE REMEDIES.
No remedy or election hereunder shall be deemed exclusive
but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
28. COVENANTS AND CONDITIONS.
All provisions of this Lease to be observed or performed by
Tenant are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW.
This Lease shall be binding upon the Parties, their personal
representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall
be initiated in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 Subordination. This Lease and any Option granted
hereby shall be subject and subordinate to any ground lease,
mortgage, deed of trust, or other hypothecation or security
device (collectively, "Security Device"), now or hereafter placed
by Landlord upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and
to all renewals, modifications, consolidations, replacements and
extensions thereof. Tenant agrees that the Lenders holding any
such Security Device shall have no duty, liability or obligation
to perform any of the obligations of Landlord under this Lease,
but that in the event of Landlord's default with respect to any
such obligation, Tenant will give any Lender whose name and
address have been furnished Tenant in writing for such purpose
notice of Landlord's default and allow such Lender thirty (30)
days following receipt of such notice for the cure of said
default before invoking any remedies Tenant may have by reason
thereof. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device
and shall give written notice thereof to Tenant, this Lease and
such Options shall be deemed prior to such Security Device,
notwithstanding the relative dates of the documentation or
recordation thereof.
30.2 Attornment. Subject to the non-disturbance provision
of Section 30.3, Tenant agrees to attorn to a Lender or any other
party who acquires ownership of the Premises by reason of a
foreclosure of a Security Device, and that in the event of such
foreclosure, such new owner shall not: (i) be liable for any act
or omission of any prior Landlord or with respect to events
occurring prior to acquisition of ownership, (ii) be subject to
any offsets or defenses which Tenant might have against any prior
Landlord, or (iii) be bound by prepayment of more than one (1)
month's rent.
30.3 Non-Disturbance. Tenant's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance
agreement") from the Lender that Tenant's possession and this
Lease, including any options to extend the term hereof, will not
be disturbed so long as Tenant is not in Breach hereof and
attorns to the record owner of the Premises.
30.4 Self-Executing. The agreements contained in this
Paragraph 30 shall be in effect without the execution of any
further documents; provided, however, that, upon written request
from Landlord or a Lender in connection with a sale, financing or
refinancing of the Premises, Tenant and Landlord shall execute
such further writings as may be reasonably required to separately
document any such subordination or non-subordination, attornment
and/or non-disturbance agreement as is provided for herein.
31. ATTORNEY'S FEES.
If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) or Broker in any such
proceeding, action, or appeal thereon, shall be entitled to
reasonable attorney's fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action
or proceeding is pursued to decision or judgment. The term
"Prevailing Party" shall include, without limitation, a Party or
Broker who substantially obtains or defeats the relief sought, as
the case may be, whether by compromise, settlement, judgment, or
the abandonment by the other Party or Broker of its claim or
defense. The attorney's fees awarded shall not be computed in
accordance with any court fee schedule, but shall be such as to
fully reimburse all attorney's fees reasonably incurred.
32. LANDLORD'S ACCESS; SHOWING PREMISES; REPAIRS.
Landlord and Landlord's agents shall have the right to enter
the premises at any time, in the case of an emergency, and
otherwise at reasonable times upon reasonable notice for the
purpose of performing its obligations hereunder.
33. SIGNS.
Provided that Tenant complies with all zoning and other
municipal and county regulations, rules, laws and ordinances
Tenant may, with Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed, install such signs
as are reasonably required to advertise Tenant's own business.
The installation of any sign on the Premises by or for Tenant
shall be subject to the provisions of Paragraph 7 (Maintenance,
Repairs, Utility Installations, Trade Fixtures and Alterations).
Unless otherwise expressly agreed herein, Landlord reserves all
rights to the use of the roof and the right to install, and all
revenue from the installation of, such advertising signs on the
Premises, including the roof, as do not unreasonably interfere
with the conduct of Tenant's business.
34. TERMINATION; MERGER.
Unless specifically stated otherwise in writing by Landlord,
the voluntary or other surrender of this Lease by Tenant, the
mutual termination or cancellation hereof, or a termination
hereof by Landlord for Breach by Tenant, shall automatically
terminate any sublease or lesser estate in the Premises;
provided, however, Landlord shall, in the event of any such
surrender, termination or cancellation, have the option to
continue any one or all of any existing subtenancies. Landlord's
failure within ten (10) days following any such event to make a
written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Landlord's election
to have such event constitute the termination of such interest.
35. QUIET POSSESSION.
Upon payment by Tenant of the rent for the Premises and the
observance and performance of all of the covenants, conditions
and provisions on Tenant's part to be observed and performed
under this Lease, Tenant shall have quiet possession of the
Premises for the entire term hereof subject to all of the
provisions of this Lease.
36. CONSENTS.
Except as otherwise provided herein, wherever in this Lease
the consent of a Party is required to an act by or for the other
Party, such consent shall not be unreasonably withheld or
delayed. Landlord's actual and reasonable costs and expenses
paid to outside consultants or attorneys incurred in the
consideration of or response to a request for consent hereunder
(but not more than $500 in any instance) shall be paid to
Landlord by Tenant upon receipt of an invoice and supporting
documentation therefor. Landlord's consent to any act,
assignment of this Lease or subletting of the Premises by Tenant
shall not constitute an acknowledgment that no Default or Breach
by Tenant of this Lease exists, nor shall such consent be deemed
a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Landlord at the time
of such consent.
37. PERFORMANCE UNDER PROTEST.
If at any time a dispute shall arise as to any amount or sum
of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay
the money is asserted shall have the right to make payment "under
protest" and such payment shall not be regarded as a voluntary
payment and there shall survive the right on the part of said
Party to institute suit for recovery of such sum. If it shall be
adjudged that there was no legal obligation on the part of said
Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not
legally required to pay under the provisions of this Lease.
38. AUTHORITY.
If either Party hereto is a corporation, trust, or general
or limited partnership, each individual executing this Lease on
behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on its behalf.
If either Party is a corporation, trust or partnership, such
Party shall, within thirty (30) days after request the other
Party, deliver to such Party evidence of such authority.
39. CONFLICT.
Any conflict between the printed provisions of this Lease
and the typewritten or handwritten provisions shall be controlled
by the typewritten or handwritten provisions.
40. OFFER.
Preparation of this Lease by either Party and submission of
same to the other Party shall not be deemed an offer to lease.
This Lease is not intended to be binding until executed by all
Parties hereto.
41. AMENDMENTS.
This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. The parties
shall amend this Lease from time to time to reflect any
adjustments that are made to the Base Rent or other rent payable
under this Lease.
42. MULTIPLE PARTIES.
Except as otherwise expressly provided herein, if more than
one person or entity is named herein as either Landlord or
Tenant, the obligations of such Multiple Parties shall be the
joint and several responsibility of all persons or entities named
herein as such Landlord or Tenant.
The parties hereto have executed this Lease at the place on the
dates specified above to their respective signatures.
Executed at Executed at
on on
by LANDLORD: by TENANT:
ST. LOUIS PARTNERSHIP #4, L.P., APRIA HEALTHCARE,INC.,
an Indiana limited partnership a Delaware corporation
By By
Name Printed: Xxxxxx X. Xxxxxxxx Name Printed:
Title: General Partner Title:
Address: Address:
Tel. No. (___) Tel. No. ( )
Fax No. Fax No.
EXHIBIT A
THE LAND
EXHIBIT A-1
SITE PLAN
EXHIBIT B
TENANCY STATEMENT
Tenant:
Attention:
Landlord:
Premises: ____ square feet of Rentable Area of office space on the
_________ (___) floor of the Building located at
.
Lease: Lease Agreement dated __________________________,
199__, by and between Landlord and Tenant and covering the
Premises
[In order to induce [Lender to make a mortgage loan to Landlord
secured by a lien on Landlord's interest in the real property and
improvements in which the Premises are situated and an assignment by
Landlord to Lender of the Landlord's interest in the captioned Lease]
[Purchaser to purchase the Landlord's interest in the real property
and improvements in which the Premises are situated, which purchase
includes an assignment from Landlord to Purchaser of Landlord's
interest in the captioned Lease], the undersigned makes the following
statements and agreements with the intention that all parties to whom
this instrument is delivered by the undersigned may fully rely
thereon:
(a) The undersigned hereby certifies, as true and correct,
the following statements:
(1) The copy of the Lease Agreement attached
hereto as Exhibit "A" and made a part hereof for all
purposes is a true, correct and complete copy of the
Lease Agreement (and all exhibits, amendments and
addenda thereto) between Landlord and Tenant with
respect to the space described in the Lease and Lease
has not been modified or amended in any manner or
respect. Such Lease Agreement (and all exhibits,
amendments and addenda thereto) constitutes the entire
and complete understanding and agreement between
Landlord and Tenant with respect to the space covered
thereby.
(2) The Lease is presently in full force and
effect.
(3) As of the date hereof, neither Landlord nor
Tenant is in default under the terms and conditions of
the Lease, except as otherwise provided herein; specifically:
(4) Tenant has not prepaid any rent or made a
security deposit except as specifically set forth in
the Lease.
(5) There are no offsets, defenses or
counterclaims with respect to the payment of rent
reserved under the Lease or in the performance of the
other terms, covenants and conditions of the Lease on
the part of Tenant or Landlord, as the case may be, to
be performed, except as otherwise provided herein;
specifically:
(6) Tenant is in possession of the Premises, has
occupied the Premises continually since
, 19 , and has accepted the Premises. Tenant and
Landlord have complied fully and completely with all of
their covenants, warranties and other undertakings and
obligations under the Lease to this date, with the
result that Tenant is fully obligated to pay the Base
Rental (as such term is defined in the Lease) and other
charges due under the Lease and is fully obligated to
perform, and is performing, all of the obligations of
Tenant under the Lease, without any right of
counterclaim, offset or defense, except as otherwise
provided herein; specifically:
.
(7) The Commencement Date (as such term is
defined in the Lease) is , 19 , and
pursuant to the provision of the Lease, as currently in
effect, the primary term of the Lease will expire on
, 19 . Subject to and in accordance with the terms
and conditions set forth in the Lease, Tenant has the
option to renew the Lease for ___ additional term(s) of
_____ (_) years.
(8) Base Rent (as such term is defined in the
Lease) under the Lease has been paid in full through
, 19 . A schedule of the Base Rent for the primary
term of the Lease and for each renewal term of the
Lease is as set forth on Exhibit "B" attached hereto
and made a part hereof for all purposes.
(9) Tenant has not received notice that Landlord
has made any other assignment, pledge or hypothecation
of the Lease or the rents due thereunder.
(10) Tenant has not assigned, mortgaged, sublet,
encumbered or otherwise transferred all or any part of
its interest under the Lease.
(b) [FOR LENDER ESTOPPEL] Tenant hereby acknowledges that
the Landlord's interest in the Lease has been or is to be
assigned to Lender pursuant to an [Assignment of Leases and
Rents] from Landlord to Lender and agrees that, from and
after the date hereof: without the prior written consent of
Lender it will not (a) modify, extend or in any manner alter
the terms of the Lease; (b) pay the Rent or any other sums
becoming due under the terms of the Lease more than one
month in advance; and (c) accept Landlord's waiver of, or
release from, the performance of any obligations under the
Lease.
(c) As used herein, the terms "Tenant", "Landlord", and
"[Lender/Purchaser]" shall mean the persons hereinabove
named as such, and their respective heirs, personal
representatives, successors and assigns.
(d) The undersigned is duly authorized to execute this
instrument on behalf of Tenant.
(e) All terms used, but not defined, herein shall have the
same meaning ascribed to them in the Lease.
EXECUTED this day of , 19 .
a
By:
Name:
Title:
RENEWAL OPTION ADDENDUM
This Addendum is attached to and forms a part of the Lease dated
____________, 1995 by and between ST. LOUIS PARTNERSHIP #4, L.P., an
Indiana limited partnership, as Landlord, and APRIA HEALTHCARE, INC.,
a Delaware corporation, as Tenant, covering the Premises located in
St. Xxxx, Missouri (the "Lease"). The terms used in this Addendum
shall have the same definitions as set forth in the Lease. The
provisions of this Addendum shall prevail over any inconsistent or
conflicting provisions of the Lease.
1. If and only if on the Expiration Date and the date
Tenant notifies Landlord of its intention to renew the term
of this Lease (as provided below), (i) Tenant is not in
default under this Lease, (ii) Tenant then occupies and the
Premises then consist of at least all the original Premises,
and (iii) this Lease is in full force and effect, then
Tenant, shall have the option to renew this Lease for two
(2) additional terms of five (5) years each (the "Renewal
Terms") upon the same terms and conditions contained in this
Lease with the exception that (i) Tenant shall have no
further right of renewal after the second Renewal Term
described above, and (ii) the Base Rent for the Renewal Term
shall be at a mutually acceptable rate as provided below.
The Base Rent for each Renewal Term shall be an amount equal
to the current market rent as mutually agreed to by Landlord
and Tenant. Landlord shall notify Tenant of the amount of
any rent change no later than thirty (30) days after
receiving notice of Tenant's intent to exercise such option
to renew. Thereafter, Tenant shall notify Landlord, no
later than twenty (20) days after receiving Landlord's
notice of the rent change, of its acceptance of the amount
of rent agreed to by the parties. If Tenant refuses to
accept the Base Rent proposed by Landlord, the annual amount
thereof shall be calculated at the rate of $10.94 per square
foot of space within the Building. Tenant's failure to
exercise any option to renew shall extinguish its right and
option for any subsequent renewal option. Notwithstanding
anything to the contrary contained in this Lease, for the
purposes of this Addendum, in no event shall the rate to be
agreed upon by Landlord and Tenant be, and in no event shall
Tenant pay for the Renewal Term annual rent in the form of
Base Rent which is, (i) less than the Base Rental rate in
effect during the last year of the Lease Term or Renewal
Term then expiring, or (ii) more than an amount equal to the
product obtained by multiplying the rental rate in effect
during the last year of the Lease Term or Renewal Term then
expiring by 115%.
2. If Tenant desires to renew this Lease in accordance
with the provisions of this Addendum, Tenant must notify
Landlord in writing of its intention to renew on or before
the date which is at least six (6) months but no more than
nine (9) months prior to the expiration of the Lease Term or
Renewal Term, as applicable (the "Expiration Date"). In the
event that Tenant fails to notify Landlord in writing of
Tenant's exercise of any renewal option as and when herein
provided, the renewal option shall automatically terminate
upon the expiration of the time period for its exercise as
provided above. Tenant's failure to notify Landlord of its
intent to renew the term of this Lease or the parties'
failure to agree upon a rental rate for the Renewal Term as
provided herein shall be deemed a waiver and extinguishment
of this option to renew. Upon each renewal of this Lease,
Landlord and Tenant shall enter into an amendment to this
Lease to reflect the extension of the term and changes in
rental.
TENANT:
APRIA HEALTHCARE, INC.
a Delaware corporation
By:
Name:
Title:
LANDLORD:
ST. LOUIS PARTNERSHIP #4, L.P.,
an Indiana limited partnership
By:
Name:
Title:
CONSTRUCTION ADDENDUM
This Addendum is attached to and forms a part of the Lease dated
________________, 1995, by and between ST. LOUIS PARTNERSHIP #4, L.P.,
an Indiana limited partnership, as Landlord, and APRIA HEALTHCARE,
INC., a Delaware corporation, as Tenant, covering the Premises located
in St. Xxxx, Missouri (the "Lease"). The terms used in this Addendum
shall have the same definitions as set forth in the Lease. The
provisions of this Addendum shall prevail over any inconsistent or
conflicting provisions of the Lease.
1. Turn-Key Construction. Landlord, on the terms and
conditions herein set forth, and at its sole cost and
expense, agrees to construct and improve the Premises
and adjacent areas in accordance with Final Plans and
Specifications (the "Final Plans") which will be
prepared in accordance with the requirements of this
Construction Addendum. Landlord shall also construct
and install landscaping, parking lots, driveways and
other improvements as shown on the Preliminary Plans
and Final Plans.
2. Preliminary Plans. Landlord and Tenant have
agreed upon and approved the following preliminary
floor plans, site plan, building elevations, project
description and drawings for the construction of the
Premises or the improvements thereto (the "Preliminary
Plans"):
The preliminary Plans have not yet have
completed. However, they will be
consistent with those described in
Project Description, Apria St. Louis,
Missouri dated October 18 & 19, 1995.
Preliminary Plans will be completed and
subject to the approval of Landlord and
Tenant.
3. Preparation of Final Plans. The Final Plans,
including complete specifications and working drawings,
but excluding mechanical, electrical and plumbing
plans, will be prepared by Landlord and its architect
at Landlord's sole cost and expense and shall be
consistent with the Preliminary Plans. When the Final
Plans are complete, they shall be delivered to Tenant
for its approval, which approval shall not be
unreasonably withheld. Landlord shall deliver its
proposed Final Plans to Tenant no later than fifteen
(15) days after the date of this Lease. Tenant shall
have a period of ten (10) days following receipt of the
Final Plans within which to object in writing to any
matters contained therein. If no objections are made
within such ten (10) day period, the Final Plans shall
be deemed to have been approved in all respects. If
Tenant timely delivers valid objections to the proposed
Plans, then those objections that (i) are merely made
to require changes necessary to make the Final Plans
consistent with the Preliminary Plans, or (ii) do not
materially increase the overall cost of constructing
the Premises, including without limitation, engineering
fees and architectural fees, and do not delay the
completion of the Building beyond the "Completion Date"
(as defined below), shall be deemed acceptable and
shall be incorporated into the Final Plans. If the
objections do increase the cost beyond the amounts
specified above or delay the completion beyond the
Completion Date, they shall be deemed acceptable and
incorporated into the Final Plans if Tenant has agreed
to pay such increased costs and/or has agreed to extend
the expected Completion Date for a reasonable period.
Any other objections made by Tenant shall be deemed
unacceptable to Landlord, and in response thereto,
Landlord may either (i) after five (5) days notice to
Tenant granting Tenant an opportunity to withdraw the
objections, terminate this Lease, whereupon neither
party shall have any further duty or obligation
hereunder, or (ii) waive its right to terminate this
Lease and proceed with the construction of the Premises
in accordance with the Final Plans as modified to
reflect Tenant's objections. If this Lease is not
terminated as provided above, the Final Plans, as
modified per Tenant's objections, shall be incorporated
herein and, if feasible, attached hereto as an Exhibit.
In the event Landlord terminates this Lease pursuant to
its right to terminate the Lease set forth in this
Section 3 above, then Tenant shall pay landlord one-
half (1/2) of the reasonable out of pocket costs
actually paid by Landlord in connection with the
preparation of the Preliminary Plans and Final Plans in
which event the non-exclusive right to utilize the
Preliminary Plans and Final Plans shall be granted to
Tenant and a complete set of all Preliminary Plans and
Final Plans shall be provided to Tenant.
4. Changes. Tenant shall have the right to request
in writing that Landlord make changes from time to time
in the Final Plans, and Landlord agrees to make such
changes, provided that such changes (i) are made at
Tenant's sole cost and expense, (ii) comply with all
applicable regulations, laws, ordinances, statutes,
codes and restrictions and (iii) do not compromise or
weaken the structural integrity of the Building. The
Completion Date shall be extended, as appropriate, to
reflect any changes made at Tenant's request affecting
the construction schedule. Landlord agrees to notify
Tenant, as soon as is reasonably practicable after
consultation with Landlord's architect and general
contractor, of any increase(s) or decrease(s) in cost
or expense or delay(s) in the construction schedule
resulting from Tenant's proposed change(s). Any
additional cost payable by Tenant associated with said
changes will be promptly paid by Tenant to Landlord
within thirty (30) days of completion of the work
associated with the applicable change order; provided,
however, that if there is an increase in the overall
cost of construction by more than $20,000 as the result
of the cost of any individual change order requested by
Tenant, then Tenant shall pay the entire cost of such
change order to Landlord prior to Landlord's
commencement of the work associated with the change
order; in the event that an acceptable change order
results in a reduction in the cost or expense of
constructing the portion of the Premises affected by
the change order, the first monthly installment(s) of
Minimum Rent coming due hereunder shall be abated, on a
dollar-for-dollar basis, in an amount equal to the cost
reduction realized by virtue of such change order.
5. Completion of Work. Notwithstanding any provision
to the contrary herein contained, Landlord shall not be
obligated to substantially complete the construction of
the Building on or before the date that is two hundred
forty (240) days after the date that the Final Plans
(excluding mechanical, electrical and plumbing plans)
have been finally approved or are deemed approved by
both Parties, subject to delays caused by Forces
Majeures as hereinafter provided (the "Completion
Date"). The date of substantial completion as used
herein shall mean the later as between the (i) the date
that the work to be performed pursuant to the Final
Plans is sufficiently complete so that Tenant can
legally occupy and utilize the Premises for the
Permitted Use subject only to certain minor punch list
items, the completion of which will not materially
affect Tenant's use and occupancy of the Premises, (ii)
the date that Landlord delivers to Tenant a Certificate
of Substantial Completion (American Institute of
Architects Document 6704) executed by Landlord and by a
licensed architect reasonably acceptable to Tenant,
(iii) if required by Applicable Law, the date a
Certificate of Occupancy (whether temporary or
permanent) or similar certificate or permit is issued
by the appropriate governmental authority having
jurisdiction over the Premises allowing Tenant to use
and occupy the Premises, or if no such Certificate is
required by law, then all inspections and approvals
required by applicable governmental authorities, if
any, shall have been completed and obtained, and (iv)
the date the completion of the work is approved by a
representative designated by Tenant (the "Inspecting
Architect"), which approval shall not be unreasonably
delayed, withheld or conditioned; provided, however,
that if the Inspecting Architect fails to approve the
Premises, it shall deliver to Landlord a written
explanation of its reasons for such failure. At such
time as the last of the foregoing requirements shall
have been satisfied, Landlord shall deliver possession
of the Premises to Tenant.
6. Punch List. All punch list items shall be
completed within a reasonable period not to exceed
thirty (30) days after the Completion Date.
7. Late Completion. If the Premises are not
completed on or before the Completion Date, as
extended, except to the extent such failure to timely
complete is caused by Tenant, then, as a penalty
hereunder, Basic Rent accruing immediately after the
Commencement Date shall be abated one (1) day for each
day from and after the Completion Date until the
Premises are substantially completed.
8. Early Entry Upon Premises. Landlord shall notify
Tenant forty-five (45) days prior to the anticipated
Completion Date. Following receipt of the notice of
anticipated completion, Tenant may, but only with
Landlord's consent, which consent shall not be
unreasonably withheld, conditioned or delayed, enter
onto the Premises to prepare the Premises for its
occupancy, provided, however, that Tenant shall arrange
its schedule so as not to interfere with or delay other
work of Landlord or any permitting or inspection
process being carried on at the same time.
9. Inspecting Architect. Inspecting Architect shall
have the right to enter onto the Premises at reasonable
times, subject to delivery of reasonable prior notice
to Landlord or its general contractor, for the purpose
of inspecting the construction thereof, provided that
such inspections shall not delay or hinder
construction. Inspecting Architect shall comport with
all safety rules and regulations imposed by Landlord
and/or its general contractor. In addition, Landlord
shall provide Inspecting Architect with such
information concerning the construction of the Premises
as may be reasonably requested by Inspecting Architect.
Upon the reasonable request of Landlord, Tenant agrees
to cause Inspecting Architect to make periodic
inspections of critical stages of construction in an
effort to minimize the occurrence of substantial "tear
out" and reconstruction of completed work. However, no
inspection or approval by Inspecting Architect shall
affect Landlord's representations and warranties, or be
construed as a waiver of Tenant's rights, with respect
to any defect in construction or deviation from the
Final Plans, unless agreed to in writing by Tenant.
10. Permits. Landlord shall apply for and obtain, at
its sole cost and expense, all permits, licenses and
certificates necessary for the construction of the
Building and for the occupancy thereof by Tenant,
11. Warranties. Landlord warrants and represents to
Tenant and to the successors and assigns of Tenant that
(i) the construction of the Premises and all other work
to be performed and equipment or materials installed
pursuant to this Construction Addendum shall be
performed in a good and workmanlike manner in strict
conformity with the Final Plans as amended pursuant to
any valid change order(s); (ii) all materials and
equipment utilized in the construction of the Building
and all systems contained therein shall be of good
quality and new; and, (iii) as of the Commencement
Date, the systems contained in the Premises shall
function for their intended purposes in accordance with
their design specifications, and (iv) that the Premises
shall be free from defects in major structural
components for the entire Lease Term. Major structural
components include the foundation, steel frame,
exterior walls, load bearing columns, structural
members of the roof and the floor and any other
structural members of the Premises.
The roofing contractor's warranty for all
materials and workmanship shall be assignable and
assigned to Tenant and shall be for a term of ten (10)
years on all labor and materials. Manufacturer's
warranties on all systems, machinery and equipment
installed as a part of the work to be performed
pursuant to the Final Plans shall be assignable to
Tenant. Terms of warranties and guaranties relating to
the systems, machinery and equipment to be installed in
the Premises shall be disclosed to Tenant as a part of
the Preliminary Plans and if the same is not disclosed
at that time they shall be submitted together with the
proposed Final Plans and will be subject to Tenant's
approval.
12. As Built Plans. Upon completion of the Premises,
Landlord shall prepare and deliver to Tenant copies of
"as built" surveys and drawings of the Premises and
surrounding grounds, together with copies of all
warranties and guaranties relating to the construction
thereof and all systems, machinery and equipment
contained therein. To the extent permitted by such
warranties and guaranties, Landlord shall assign the
same (other than those relating to major structural
components) to Tenant. To the extent not so permitted,
Landlord shall forward to Tenant the benefit of and
right to enforce the same in Landlord's name.
Notwithstanding any previous assignment to Tenant,
Landlord shall have the right to enforce on its own
behalf and with respect to its own obligations, any
warranty or guaranty relating to the Premises and all
systems, machinery, and equipment contained therein, in
connection with any alleged breach on the part of
Landlord of its warranties set forth in this Addendum.
13. Forces Majeures. The deadline for the performance
of any of Landlord's obligations under this Addendum
shall be extended for up to sixty (60) days to the
extent of delays caused by "Forces Majeures". "Forces
Majeures" shall mean any cause or event beyond the
reasonable control of Landlord, including, without
limitation, acts of God, inability to obtain labor,
strikes, lockouts, embargos, material shortages,
failure of suppliers to provide needed materials,
governmental restrictions, acts of war, civil
commotion, fire, flood, tornado, earthquake, adverse
weather conditions, unavoidable casualty and other
similar causes beyond the reasonable control of
Landlord. Such period of extension may be extended
beyond sixty (60) days if the delay is directly caused
by war, or governmental enactment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the 12th day of ____________________,
1995.
LANDLORD:
ST. LOUIS PARTNERSHIP #4, L.P.,
an Indiana limited partnership
By:
Name: Xxxxxx X. Xxxxxxxx
Title:General Partner
TENANT:
APRIA HEALTHCARE, INC.,
a Delaware corporation
By:
Name:
Title:
OXYGEN TANK ADDENDUM
This Addendum is attached to and forms a part of the Lease dated
___________________, 1995, by and between ST. LOUIS PARTNERSHIP #4,
L.P., an Indiana limited partnership, as Landlord, and APRIA
HEALTHCARE, INC., a Delaware corporation, as Tenant, covering the
Premises located in St. Xxxx, Missouri (the "Lease"). The terms used
in this Addendum shall have the same definitions as set forth in the
Lease. The provisions of this Addendum shall prevail over any
inconsistent or conflicting provisions of the Lease.
1. Notwithstanding anything contained in the Lease to
the contrary, Tenant, at no additional cost, shall be
entitled to store liquid oxygen in storage tank to be
located outside the Premises and compressed oxygen in
tanks within the Premises and Landlord hereby consents
to such storage as limited herein. Tenant shall be
entitled to construct and maintain, at its sole cost
and expense and in accordance with plans approved by
Landlord, which approval shall not be unreasonably
withheld or delayed liquid oxygen storage tanks at the
location shown on Schedule 1 hereto, or at such
location as Tenant may hereafter designate with
Landlord's approval, which approval shall not be
unreasonably withheld or delayed. Tenant may also
store in the Premises the supplies, equipment and
inventory utilized by Tenant in its home healthcare
business, including, but not limited to pharmaceutical
and medical supplies.
2. Upon expiration or termination of the Lease,
Tenant at its sole cost and expense shall be
responsible for removing the tank, the related piping
and fixtures and otherwise restoring the property to
its original condition.
3. At its sole cost and expense, Tenant shall be
responsible for maintaining the oxygen tank and related
structures in accordance with all applicable laws,
rules, regulations, codes or ordinances. Prior to
installing or using the tank, to the extent required by
law, Tenant shall obtain approval for the construction
and use thereof from any applicable authorities and
shall provide Landlord with evidence of such approval
of the tank. Tenant further agrees to construct one
solid material post on each corner around the oxygen
tank to protect it from possible damage or injury from
vehicles.
4. Tenant hereby represents and warrants to Landlord
that all employees involved in the filling or removal
of oxygen from this tank either have been or shall be
properly trained and certified to do so. As provided
in this Lease, Tenant hereby indemnifies and holds
Landlord harmless from any and all losses, costs,
claims or damages incurred by Landlord and arising from
or related to Tenant's construction, use or operation
of the oxygen storage tank.
TENANT:
APRIA HEALTHCARE, INC.,
A Delaware corporation
By:
Name:
Title:
LANDLORD:
ST. LOUIS PARTNERSHIP #4, L.P.,
an Indiana limited partnership
By:
Name:
Title:
SPECIAL PROVISIONS
ADDENDUM
This Addendum is attached to and forms a part of the Lease dated
_________________________, 1995 by and between ST. LOUIS PARTNERSHIP
#4, L.P., an Indiana limited partnership, as Landlord, and APRIA
HEALTHCARE, INC., a Delaware corporation, as Tenant, covering Premises
located in St. Xxxx, Missouri (the "Lease"). The terms used in this
Addendum shall have the same definitions as set forth in the Lease.
The provisions of this Addendum shall prevail over any inconsistent or
conflicting provisions of the Lease.
A. Expense Reimbursements. Landlord shall pay Tenant
the sum of $48,090.00 as a reimbursement for various
other expenses and commissions incurred by Tenant in
connection with this Lease and the Premises.
$24,045.00 of the foregoing amount shall be due and
payable by Landlord to Tenant at the time Landlord
receives the first advance for construction costs under
its construction loan for the Premises, and the
remaining $24,045.00 shall be due and payable upon the
Commencement Date.
B. Holdover. In the event that Tenant shall hold
over at the expiration or other termination of the
Lease Term set forth in this Lease, or any Renewal
Term, then this Lease shall continue as a month-to-
month lease subject to termination by either party upon
thirty (30) days prior written notice to the other,
which notice may be given prior to the expiration of
the Lease Term. Such month-to-month tenancy shall be
subject to all of the terms and conditions of this
Lease, including the Base Rent, in effect during the
final month of this Lease Term, or applicable Renewal
Term. However, after thirty (30) days prior written
notice to Tenant, which notice may be given prior to
expiration of the Lease Term or Renewal Term, as
applicable, Tenant shall be liable for Base Rent during
the holdover period in an amount equal to one and one
quarter (125%) times the Base Rent provided for in this
Lease during the last month of the Lease Term or
Renewal Term, as applicable, together with all other
additional rent and other charges provided for in the
Lease. Tenant acknowledges that the rental value of
the Premises in the future is difficult to estimate and
that the increased amount of Base Rent set forth in
this Section is a reasonable estimate by the parties of
the future rental value of the Premises upon expiration
or termination of the Lease Term or Renewal Term set
forth in this Lease.
C. Expansion. Subject to the terms and conditions
set forth below in this Addendum, Tenant shall have the
right to expand the size of the Premises on a one (1)
time basis, which right may be exercised by Tenant any
time during the Lease Term as set forth below. Such
expansion shall be performed, or caused to be
performed, by Landlord, with the costs thereof to be
paid as set forth below. The following terms and
conditions shall apply to any such expansion and the
rights and obligations of Landlord and Tenant with
respect thereto:
(a) The minimum size of the building
expansion shall be fifteen thousand (10,000) square
feet of additional rentable area, and the maximum size
shall be twenty thousand (15,000) square feet;
provided, that then applicable laws, ordinances,
statutes, rules, regulations and codes allow such size
of expansion. If not, the maximum size of the
expansion shall be adjusted accordingly. Tenant shall
have no right to expand or cause the expansion of the
Premises for any size of additional space that is less
than 10,000 square feet (subject to reduction by
applicable laws, statutes, ordinances, rules,
regulations and codes), nor shall Tenant have any right
to expand or cause the expansion of the Premises for
any size of additional space that is more than 15,000
square feet.
(b) From and after the completion of the
expansion, the additional space shall be deemed a part
of the Premises and shall be subject to all of the
terms and provisions of this Lease, as modified by the
terms and conditions set forth in this Addendum. In
the event of an irreconcilable conflict between the
terms and provisions set forth in this Addendum, and
any other term or provision in this Lease, the terms
and provisions set forth in this Addendum shall govern
with respect to the expansion space.
(c) The Lease Term (including both the
original Premises and the expansion space) shall be
extended for a minimum of ten (10) years from and after
substantial completion of the expansion of the
Premises.
(d) Base Rent for the original Premises
during the extended 10-year term shall be as stipulated
in Section 1.4 herein.
(e) If Tenant exercises its right to expand
within the first three (3) years of the Lease Term,
written notice of which exercise must be delivered to
Landlord not later than the date that is one hundred
eighty (180) days prior to the expiration of such 3-
year period, Base Rent with respect to the expansion
space shall be established as in the following manner:
(i) if (A) the area of the
expansion space finished as office space does not
exceed fifteen percent (15%) of the total area of
expansion space, (B) there are no tenant
improvements specific to Tenant's intended use,
and (C) the design of the Premises expansion and
the expanded space are compatible with the
original Premises, then Landlord and Tenant agree
that Base Rent with respect to the expansion space
during the initial 10-year term shall be
established in accordance with the following
formula:
Total Costs Per Square Foot Associated With Expansion X (10-
year treasury xxxx rate + 400 basis points) X 1.25
(For example, if costs are $50 per
square foot and 10-year treasury bills are at
7.0%, then the calculation would be as follows:
((.0700 + .04) X 1.25 = .1375 rent constant X $50
= $6.875 per square foot rental rate.)
(ii) If the percentage of office
space is greater than 15% but less than 30%, then,
in addition to the Base Rent payable pursuant to
sub-paragraph (e)(i) above, the portion of the
total costs attributable to the office area in
excess of 15% will be funded by the Landlord, and
the total additional construction costs for such
space only shall be amortized and paid to Landlord
in one hundred twenty (120) equal monthly
installments of principal and interest utilizing
an annual interest rate equal to the 10-year
treasury xxxx rate plus 300 basis points,
compounded monthly. Such monthly installments
shall be due and payable together with the monthly
payments of Base Rent, without prior notice, and
subject to the same terms with respect to late
payments and/or a default in payments.
(iii) If the percentage of office
space is equal to or greater than 30%, any
additional construction and tenant improvement
costs attributable to the office area in excess of
29% of the total expansion space shall be paid by
Tenant in the first instance (i.e., Landlord shall
not be required to fund the construction and
tenant improvement costs for such excess office
space) within fifteen (15) days of written demand
therefor delivered by Landlord. Base Rent for the
expansion space shall be established as set forth
in sub-paragraph (e)(i) above. Total costs as
described in this sub-paragraph are intended to
mean actual construction tenant improvement costs
incurred plus any related third-party fees such as
architectural, engineering, legal, financing and
brokerage fees.
(f) If Tenant exercises its right to expand
after the first three (3) years of the Lease Term
(written notice of which exercise must be delivered to
Landlord not later than the date that is one hundred
eighty (180) days prior to the expiration of the
Original Term), such right shall be conditioned upon
the agreement of Landlord and Tenant upon the Minimum
Annual Rent to be charged for the expansion space.
Landlord and Tenant each agree to negotiate in good
faith in connection with the establishment of the Base
Rent for the expansion space. However, it is
acknowledged and agreed that the Base Rent shall take
into account all costs of construction of the expansion
space and tenant improvements thereto, including
without limitation, architectural, engineering, legal
and brokerage fees, and all costs and fees associated
with obtaining financing (including a refinancing of
the loan for the construction of the original Premises,
if applicable) for the expansion space.
(g) Tenant shall not be in default at the
time of its exercise of its right to expand the
Premises.
(h) Tenant or its successor shall have a net
worth equal to or greater than Tenant's net worth as of
the date hereof.
(i) All terms and provisions applicable to
the construction of the original Premises, as contained
in the Construction Addendum (as may be modified in
this Addendum), shall apply to the expansion space.
(j) Landlord's obligation to construct the
expansion space shall be subject to the agreement of
Landlord and Tenant as to final plans and
specifications for the expansion space, each of the
parties hereby agreeing to act in good faith in
connection with the negotiation of such plans and
specifications; in addition, Landlord's obligation to
construct the expansion area shall be subject to the
approval of Landlord's mortgagee (or mortgagees, if the
mortgagees for the original Premises and the expansion
space are different) with respect to (i) the final
plans and specifications for the expansion space, (ii)
the imposition of a second mortgage lien, if
applicable, on the Premises (including the expansion
space) in connection with the loan financing for the
construction of the expansion space, and/or (iii) such
other matters as required by Landlord's mortgagee(s).
(k) If, despite their good faith efforts,
Landlord and Tenant are unable to agree as to the
applicable Base Rent, the plans and specifications for
the expansion space, or if any other material terms or
conditions with respect to the expansion space can not
be established or satisfied, then Tenant's right to
expand shall be automatically cancelled, and this Net
Lease shall continue in full force and in accordance
with its terms and conditions without regard to
Tenant's right to expand or the terms and conditions
set forth in this Addendum. If Tenant's option to
expand is exercised and the expansion space is
constructed, a rider to this Lease setting forth the
Base Rent and the Commencement Date and expiration date
for the 10-year term shall be executed by both parties
and shall be attached hereto and made a part hereof.
D. Approvals of Plans, Title and Acquisition of
Property. Within thirty (30) days after the full and
final execution hereof, Landlord shall provide Tenant
with the following:
(i) A current title report or commitment for
title insurance reflecting the state of title to
the Land and legible copies of all instruments
referred to therein as exceptions to title.
(ii) A Phase I environmental report with
respect to the Land prepared by an environmental
engineer reasonably acceptable to Tenant.
(iii) The Preliminary Plans
(iv) Evidence of the due formation of
Landlord and of Landlord's authority to enter into
this Lease.
Tenant shall have a period of fifteen (15) days
following the last of the foregoing items to be
received by it in which to review the same. If Tenant
is not satisfied with any of the foregoing items,
Tenant may terminate this Lease by the delivery of
written notice to Landlord on or before the expiration
of such fifteen (15) day period, in which event neither
party shall have any further obligations to the other
hereunder. If Tenant fails to terminate this Lease
within such fifteen (15) day period as herein provided,
then the foregoing items shall be deemed to have been
approved by Tenant.
E. Tenant's Rights of Termination. In addition to
any other right of termination granted in this Lease,
Tenant shall have the right to terminate this Lease by
the delivery of written notice of termination to
Landlord if any of the following shall occur:
(i) Landlord shall fail to commence
construction of the Premises on or before
February 1, 1996.
(ii) Landlord shall cease construction of the
Premises prior to the substantial completion
thereof for a period of thirty (30) or more days,
except for periods of delay caused by Forces
Majeures.
In each case, such rights of termination must be
exercised, if at all, by the delivery of written notice
by Tenant to Landlord within ten (10) days after
receipt by Tenant of written notice that the applicable
deadline described above has not been met and advising
Tenant that it must exercise its right of termination
within ten (10) days or lose the right to do so.
F. Landlord's Right of Termination. If,
notwithstanding diligent efforts on the part of
Landlord to substantially complete the Improvements and
tender the Premises to Tenant as and when required
hereunder, Landlord, for reasons of Forces Majeures, or
otherwise, is unable to substantially complete the
Improvements and tender the Premises to Tenant on or
before November 1, 1996, then Landlord shall notify
Tenant in writing (such writing being referred to
herein as the "Late Completion Notice") of the date
upon which Landlord reasonably believes that Landlord,
through diligent efforts, will substantially complete
the Premises and request that Tenant make an election,
within fifteen (15) days after actual receipt by Tenant
of such written notice and request, to either terminate
the Lease by written notice to Landlord pursuant to
Section 3.3 of the Lease or agree to accept the delay
damages provided in Paragraph 7 of the Construction
Addendum as its sole remedy for late completion. If
Tenant elects to accept the delay damages as its sole
remedy for late completion, then Landlord shall
substantially complete construction of the Premises by
the date specified in the Late Completion Notice, and
Tenant shall have no further option to terminate on the
basis of late completion unless Landlord shall fail to
substantially complete the Improvements and tender the
Premises to Tenant on or before the date specified in
the Late Completion Notice. If Tenant shall fail to
respond to the Late Completion Notice within the time
period specified above, then Tenant shall be deemed to
have agreed to accept delay damages as its sole remedy
as described above. In addition, if Landlord, after
having employed diligent efforts to do so, is unable to
obtain all necessary approvals of the Final Plans and
the oxygen tank to be located on the Premises, as well
as all other permits, approvals and licenses relating
to the construction and development of the
Improvements, from all applicable governmental
authorities and under applicable covenants and
restrictions on or before January 1, 1996, without
making substantial changes to such Final Plans, and if
Tenant shall not have consented to such changes fifteen
(15) days after written notice of Landlord's intention
to terminate on the basis of its inability to obtain
the necessary approvals and of the changes necessary to
obtain approval, then Landlord, at its option, may
terminate this Lease by written notice to Tenant.
G. Option to Terminate After Seven Years. Tenant
shall have the right to terminate this Lease at the end
of the eighty-fourth (84th) full calendar month of the
Lease Term by the delivery to Landlord of written
notice of termination no later than the final day of
the eightieth (80th) full calendar month of the Lease
Term and the delivery to Landlord of a termination
payment prior to the expiration of the eighty-fourth
(84th) full calendar month of the Lease Term in an
amount equal to the sum of all scheduled payments of
Base Rent for the eighty-fifth (85th) through the one
hundred second (102nd) full calendar months of the
Lease Term, plus one and one-half times the amount of
Real Property Taxes paid by Tenant under the Lease for
the most recently concluded calendar year.
H. Effect of Termination. Upon a termination under
Paragraph E, Paragraph F or Paragraph G of this
Addendum, neither party shall have any further
obligations hereunder.
APPROVED:
LANDLORD:
ST. LOUIS PARTNERSHIP #4, L.P.,
an Indiana limited partnership
By:
Name: Xxxxxx X. Xxxxxxxx
Title:General Partner
TENANT:
APRIA HEALTHCARE, INC.,
A Delaware corporation
By:
Name:
Title:
