Exhibit 10.42
LEASE
THIS LEASE, (hereinafter referred to as "Lease"), is made as of this
1st day of April, 1999, by and between LOUISVILLE COMMERCE REALTY CORPORATION, a
Delaware corporation, or assigns (hereinafter referred to as "Landlord") and
ELECTRONIC ARTS, INC., a Delaware corporation (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant desire to create a leasehold estate in
favor of Tenant in the Premises (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises, and of the covenants
and agreements herein contained, the parties hereto agree as follows:
1. PREMISES. Effective as of the Commencement Date, Landlord shall
lease unto Tenant and Tenant shall lease from Landlord approximately 250,000
rentable square feet as outlined in Exhibit A ("Premises"), on the east side of
a building of approximately 400,000 square feet ("Building"), which Building is
located on a parcel of land ("Property") as shown on Exhibit A, and that
machinery and equipment installed in and upon the Premises by Landlord, together
with all additions and accessions thereto, substitutions therefor and
replacements thereof permitted by this Lease (collectively, the "Equipment").
The exact square footage of the Premises shall be determined by the Landlord's
architect.
Landlord shall be responsible for constructing, at its expense, the
"Building Shell" as described in Exhibit B hereto, and Tenant shall, at Tenant's
sole expense (subject to Paragraph 8(b) below), and upon the terms set forth
herein, make improvements to the Premises (the "Tenant Improvements") specified
by Tenant as generally depicted in a preliminary space plan (the "Preliminary
Space Plan") to be submitted to Landlord.
2. COMMENCEMENT DATE AND LEASE TERM. The initial term of this Lease
shall be for a period of five (5) years (hereafter referred to as "Term"),
commencing on the "Commencement Date." The Commencement Date shall be the
earlier of (i) June 15, 1999, or (ii) the date Tenant commences beneficial use
of the Premises, determined as set forth hereinbelow. Any use of the Premises by
Tenant prior to the Commencement Date shall be subject to the terms and
conditions of this Lease (except the payment of Rent). Tenant shall be deemed to
have commenced beneficial use of the Premises when Tenant begins to move
furniture, furnishings, or inventory into the Premises or any portion thereof.
In no event shall Landlord be liable for Tenant's failure to complete
construction by June 15, 1999. Tenant shall use reasonable efforts to keep
Landlord informed of the progress of construction. The initial twelve (12) month
period after the Commencement Date and each successive twelve (12) month period
thereafter during the initial Term and any renewal periods shall be hereinafter
referred to as a "Lease Year." If the Commencement Date is not the first day of
a month, then the Term shall be the period set forth above plus the partial
month in which the Commencement Date occurs.
3. RENT. As rent for the Premises (all of which is hereinafter referred
to collectively as "Rent"), Tenant shall pay to Landlord all of the following:
(a) Base Rent. Tenant shall pay, without offset, demand or
counterclaim, as base rent (hereafter referred to as the "Base Rent") for each
Lease Year the sums identified on the attached Exhibit C, Rent Schedule. The
monthly installments shall be payable in advance on the first day of each and
every month during the said term at the office of Landlord c/o X.X. Xxxxxx
Investment Management, Inc., 000 Xxxxx Xxxxxx at 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as Landlord may hereafter designate in writing.
Rent checks are to be made payable to Landlord, or such other person, firm or
corporation as Landlord may hereafter designate in writing, except that the
first such installment, in the amount of Twenty-Seven Thousand Dollars ($27,000)
shall be due contemporaneously with the execution of this Lease.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) Intentionally Omitted.
(e) Tax on Lease. Tenant's pro rata share (based on the
Premises) of any federal, state or local tax (including gross receipts tax)
assessment, levy or other charge (other than any income tax or real property
tax) (hereinafter collectively referred to as "Tax") if now or hereafter
directly or indirectly upon (a) Landlord with respect to this Lease or the value
thereof, (b) Tenant's use or occupancy of the Premises, or (c) the Base Rent or
any other sum payable under this Lease, shall be paid by Tenant as Additional
Rent.
Landlord shall annually notify Tenant of the amount
which Landlord estimates will be the Tax for each tax year, and Tenant shall pay
such amount in equal monthly installments in advance on or before the first day
of each of the twelve (12) months after the date of such notice. Landlord shall
annually submit to Tenant a statement showing Tenant's pro rata share of the
actual Tax for the current tax year, the amount thereof theretofore paid by
Tenant, and the amount of the resulting balance due thereon or overpayment
thereof. Such balance due shall be paid by Tenant, without interest, within
thirty (30) days after the date of such statement. Official tax bills rendered
by the taxing authority shall be presumptive evidence of the actual amount of
Tax. Tenant shall have the right to audit Landlord's records pertaining to such
Tax in accordance with Paragraph 11 below.
(f) Acceptance. Tenant does hereby take and hold the Premises
at the Rent hereinabove specifically reserved and payable as aforesaid, and upon
and subject to the terms and conditions herein contained.
(g) Late Payment. If Tenant fails to pay any installment of
Rent on or before the fifth (5th) day of the calendar month when such
installment becomes due and payable, Tenant shall pay to Landlord a late charge
of five per cent (5%) of the amount of such installment, and, in addition, any
unpaid installment shall bear interest at that rate per annum which is two per
cent (2%) greater than the "prime rate" then in effect at Xxxxxx Guaranty Trust
Company of New York, New York, New York, from the date such installment became
due and payable to the date of payment by Tenant; provided, however, that
nothing herein contained shall be construed or implemented in such a manner as
to allow Landlord to charge or receive interest in excess of the maximum legal
rate than allowed by law. Such late charge and interest shall constitute
Additional Rent hereunder and shall be due and payable with the next monthly
installment of Rent. Nothing in this paragraph shall be deemed to be in
derogation of Landlord's rights under Paragraph 17.
(h) Additional Rent. With respect to this Lease, Additional
Rent shall mean any and all monetary obligations for which Tenant is responsible
under the terms, covenants and conditions of this Lease, including but not
limited to, Base Rent, Tax, late fees, interest payments and Operating Costs.
(i) Tenant's Proportionate Share. Landlord and Tenant agree
that Tenant's "pro rata share" for purposes of Paragraphs 3(e) and 11 shall be
sixty-two and one-half percent (62.5%), the approximate and agreed upon ratio
that the area of the Premises bears to the total rentable area of the Building.
4. OPTION TO EXTEND TERM.
(a) Renewal Period. Provided that (i) Tenant is in occupancy
of the Premises and conducting operations therein; (ii) this Lease is in full
force and effect, (iii) no material adverse change in Tenant's financial
condition has occurred, and (iv) Tenant shall not have been in default during
the term of the Lease, and (v) shall not then be in default and shall not
default in the performance of any of its obligations under this Lease at any
time between the date of issuance of the notice contemplated by Paragraph 4(b)
below and the expiration of the then current lease term, Tenant shall have the
option to renew this Lease for one (1) additional two (2) year term, with the
annual base rent in such renewal period, being equal to One Million Dollars
($1,000,000) payable in equal monthly installments of Eighty-Three Thousand
Three Hundred Thirty-Three Dollars and Thirty-Three Cents ($83,333.33) each.
(b) Notice Required. Tenant shall give Landlord written notice
of its intent to exercise its option to extend the Lease Term at least One
Hundred Eighty (180) days, but no more than Three Hundred Sixty (360) days,
prior to the end of the initial term, time being of the essence. Should Tenant
fail to notify Landlord of its intent to exercise such renewal option within the
aforementioned notice period, time being of the essence, then Tenant's renewal
option shall expire without action by either party and Landlord shall not need
to advise Tenant in writing of Tenant's neglect in reference to the notice
period.
5. USE OF PREMISES.
(a) Tenant may occupy and use the Premises for general office
and warehousing purposes and for no other purpose without the consent of
Landlord, subject, however, to the terms and provisions of any covenants,
easements, conditions or restrictions which affect the use of the Premises.
Tenant shall not permit any unlawful occupation, business or trade to be
conducted on any of the Premises or any use to be made thereof contrary to
applicable laws or regulations. Tenant shall not use or occupy or permit any of
the Premises to be used or occupied, nor do or permit anything to be done in or
on any of the Premises, in a manner which would (i) violate any certificate of
occupancy affecting any of the Premises, (ii) make void or voidable any
insurance then in force with respect to any of the Premises, (iii) make it
difficult or impossible to obtain fire or other insurance which is required
hereunder, or cause the cost of maintaining such insurance to increase [unless
Tenant pays such increase in full], (iv) cause structural damage to the
Building, or (v) constitute a public or private nuisance or waste. In no event
shall Tenant conduct any retail sales in the Premises.
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(b) As part of its obligation to comply with laws and other
requirements under Paragraph 5(a) of this Lease, Tenant shall not (either with
or without negligence) generate, use, store, or cause or permit the escape,
disposal or release of any Hazardous Materials in or about the Building or the
Property or the Premises. Hazardous Materials shall mean (a) "hazardous wastes",
as defined by the Resource Conservation and Recovery Act of 1976, as amended
from time to time, (b)"hazardous substances", as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time, (c)"toxic substances", as defined by the Toxic Substances Control
Act, as amended from time to time, (d) "hazardous materials", as defined by the
Hazardous Materials Transportation Act, as amended from time to time, (e) any
applicable state or local laws and the regulations adopted under these acts, as
amended from time to time, (f) oil or other petroleum products whether refined
or unrefined, (g) any highly combustible substance and (h) any substance whose
presence in Landlord's reasonable judgment could be detrimental to the Building
or the Property or the Premises or hazardous to health or the environment. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous Materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as additional charges if such requirement applies to the Premises; provided
however, the foregoing shall not include any Phase I environmental reports
customarily required by lenders and shall be applicable only if Tenant, its
agents, employees, contractors, subtenants or licensees is suspected of having
directly or indirectly caused a release of Hazardous Materials in or about the
Premises which gives rise to the testing. In addition, 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
Hazardous Materials in the Premises. In all events, Tenant shall indemnify and
hold Landlord harmless of and from any and all costs and expenses of any nature
arising from the release of Hazardous Materials in the Premises occurring while
Tenant is in possession, or elsewhere on the Property and any adjacent real
estate owned by Landlord, if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the expiration or earlier termination of the
Lease.
(c) If Tenant fails to comply with any applicable law or
regulation or if Landlord reasonably believes the violation of any law or
regulation is threatened, Landlord shall have the right (but not the obligation)
following thirty (30) days notice to Tenant unless Tenant commences to act
during or prior to such period, and diligently pursues the cure of such failure
to comply (unless such failure or threatened failure causes imminent threat to
life or property in which case no notice is required), to act in place of Tenant
and to take such action as it may deem necessary or desirable to ensure
compliance or to mitigate, xxxxx or correct the violation or threatened
violation. All costs of any kind whatsoever incurred by Landlord in connection
therewith, including consultants' and reasonable attorneys' fees, shall be
payable on demand, shall bear interest at the default rate until paid, and shall
constitute additional rent.
(d) Tenant shall indemnify, defend and hold Landlord harmless
from and against any and all claims, losses, damages, liabilities, cost and
expenses, including attorneys' fees, arising from Tenant's failure to comply
with all applicable laws and regulations. The foregoing provisions shall survive
the expiration or earlier termination of this Lease.
6. [INTENTIONALLY DELETED]
7. CONSTRUCTION OF PREMISES.
Tenant warrants that the Premises shall be improved in a good
and workmanlike manner in conformance with all applicable federal, state and
local codes and regulations in effect at that time, including but not limited to
the Americans With Disabilities Act, as amended.
8. TENANT IMPROVEMENTS.
(a) Tenant shall construct, at Tenant's sole cost (subject to
the Tenant Work Allowance as provided in Paragraph 8(b) below), improvements to
the Premises (the "Tenant Improvements") substantially in accordance with the
Space Plan approved by Landlord prior to commencement of construction. Tenant
shall, in consultation with Landlord, coordinate the design of the Tenant
Improvements, and the budgeting of the costs thereof. Tenant shall arrange for
the preparation of "Construction Drawings and Specifications," consisting of
construction working drawings, the mechanical, electrical and other technical
specifications, and the finishing details, including wall finishes and colors
and technical and mechanical equipment installation, if any, all of which
details the installation of the Tenant Improvements in the Premises. The
architects and engineers who prepare such Construction Drawings and
Specifications shall be selected by Tenant subject to Landlord's approval which
shall not be unreasonably withheld. Within ten (10) business days of its receipt
of any of (i) proposed Construction Drawings and Specifications and any
amendments thereto, (ii) the estimated budget for the Tenant Work and any
amendments thereto, (iii) proposed change orders, Landlord shall provide to
Tenant notice of any refusal to approve any aspect of any such item, which
notice shall state with particularity those elements thereof as to which
Landlord does not approve, and the detailed reasons therefor. Should Landlord
fail to provide such notice to Tenant within such period, such item shall
conclusively be deemed to have been approved. Following approval by Landlord of
Construction Drawings and Specifications, and the estimated budget therefor,
which approval shall be reflected by Landlord's initialing as approved such
Construction Drawings and Specifications, and the budget therefor, Tenant will
solicit bids from one or more general contractors for the construction of the
Tenant Improvements, and Tenant shall, following
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consultation with Landlord, contract for the construction of the Tenant
Improvements with a contractor reasonably acceptable to Landlord, and Tenant
shall thereafter coordinate and supervise such construction and consult with
Landlord regarding such construction.
(b) Tenant shall receive an amount equal to the lesser of the
actual cost of Tenant Work or Six Hundred Eighty-Seven Thousand Five Hundred
Dollars ($687,500) (the "Tenant Work Allowance") to be applied against the costs
associated with the design and construction of the Tenant Improvements (such
design and construction being referred to herein as the "Tenant Work"). The
costs of the Tenant Work shall include all costs to be expended in connection
with the design and construction of the Tenant Improvements, including but not
limited to the (i) architectural and engineering fees and expenses incurred in
connection with the Tenant Work, including the preparation of the Space Plan and
the Construction Drawings and Specifications; (ii) governmental agency plan
check, building and other permits and other fees (including any code compliance
changes required by any governmental entity or authority having jurisdiction
thereof); (iii) sales and use taxes, if any; (iv) insurance fees associated with
the construction of the Tenant Work; (v) testing and inspecting costs; (vi) the
actual costs and charges for material and labor, contractor's profit and
contractor's general overhead incurred in constructing the Tenant Work,
including the cost of any change orders; (vii) the cost of constructing the
demising walls; and (viii) utility hook-up and tap-in fees. The parties
anticipate that the cost of the Tenant Work will exceed the Tenant Work
Allowance. Landlord shall pay to Tenant the Tenant Work Allowance on the last of
the following to occur: (a) completion of the Tenant Improvements, or (b) ten
(10) days after Landlord's receipt of Tenant's payment of rent for the second
month of the Term; and (c) thirty (30) days following Tenant's presentation of
all final and unconditional lien waivers, a certificate of occupancy and
Tenant's written acceptance of the Tenant Improvements in form and substance
satisfactory to Landlord.
(c) Tenant designates Xxx Xxxxxx, whose address is 000 Xxxxxxx
Xxxxxx, Xxxxxxx XX 00000-0000 or such other person as Tenant may designate in
writing to Landlord ("Tenant's Authorized Representative") as the person
authorized to (i) initial as approved all Construction Drawings and
Specifications, budgets, change orders, and approvals pursuant to this Paragraph
8 and (ii) communicate with Landlord regarding the decisions, elections and
requests of Tenant. Landlord shall not be obligated to respond to or act upon
any such item until such item has been initialed by Tenant's Authorized
Representative.
9. LANDLORD'S LIABILITY.
(a) Landlord's Indemnity. Subject to the provisions of this
Xxxxxxxxx 0, Xxxxxxxx agrees to protect, indemnify, hold harmless and defend
Tenant and its respective members, directors, officers, agents, employees,
successors and assigns, where herein permitted, from and against any and all
loss, cost, damage, liability or expense as incurred (including but not limited
to actual attorneys' fees and legal costs) arising out of or related to any
claim, suit or judgment brought by or in favor of any person or persons for
damage, loss or expense due to, but not limited to, bodily injury, including
death, or property damage sustained by such person or persons which arises out
of, is occasioned by or is in any way attributable to the use or occupancy of
any common areas of the Building, except that caused by the negligence or
willful misconduct of Tenant, its successors or assigns, and their respective
agents, employees and invitees.
(b) Limitation of Liability. Notwithstanding anything to the
contrary contained in this Lease, it is expressly understood and agreed by and
between the parties hereto that: (i) the recourse of Tenant or its successors or
assigns against Landlord with respect to the alleged breach by or on the part of
Landlord of any representation, warranty, covenant, undertaking or agreement
contained in the Lease or otherwise arising out of Tenant's use of the Premises
or the Property (collectively, "Landlord's Lease Undertakings") shall extend
only to Landlord's interest in the real estate of which the Premises demised
under the Lease are a part ("Landlord's Real Estate") and not to any other
assets of Landlord or its owners; and (ii) except to the extent of Landlord's
interest in Landlord's Real Estate, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Landlord, X.X. Xxxxxx Investment Management Inc.,
Landlord's property manager, or against any of their respective directors,
officers, employees, agents, constituent parties, beneficiaries, trustees,
shareholders or representatives.
(c) Transfer of Landlord's Interest. In the event of any
transfer of Landlord's interest in the Property, Landlord shall be automatically
freed and relieved from all applicable liability accruing thereafter with
respect to performance of any covenant or obligation on the part of Landlord
provided any deposits or advance rents held by Landlord are turned over to the
grantee and said grantee expressly assumes, subject to the limitations of this
Paragraph 9, all of the terms, covenants and conditions of this Lease to be
performed on the part of Landlord, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord shall, subject
to all the provisions of this Paragraph 9, be binding on Landlord, its
successors and assigns, only during their respective periods of ownership.
10. GUARANTY. [Intentionally Deleted]
11. OPERATING COSTS. Tenant shall pay as Additional Rent its pro rata
share of Operating Costs of the Building and Property. This amount shall be
adjusted on an annual basis in accordance with the procedures outlined below.
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(a) Definition. As used herein, the term "Operating Costs"
means (except as specifically excluded below) the actual costs incurred in
owning, operating and maintaining the Building and Property during each year of
the Lease Term. Such operation and maintenance costs shall include, by way of
example rather than of limitation, (i) real property, county, and other similar
taxes or assessments, including but not limited to any special assessments,
levied against any or all of the Building and Property; (ii) charges or fees
for, and taxes on, the furnishing of water, sewer service, gas, fuel,
electricity, drainage or other utility services to the Premises and common areas
of the Building and Property; (iii) costs of providing trash removal service,
landscaping service, snow removal service, and of maintaining grounds, common
areas of the Property, access easements, parking areas, and mechanical systems
of the Building; (iv) all other reasonable costs of maintaining, repairing or
replacing any or all of the Building or Property, except (a) costs for repairs,
maintenance and replacements required due to defective materials, installations
or workmanship at the time of initial construction of the Building and Property
and expenses incurred in connection with the enforcement of any warranty rights
in connection therewith, or (b) costs to repair the roof, foundation, interior
load bearing partitions, exterior walls and window systems, except to the extent
any such structural repair is required due to Tenant's negligence or willful
misconduct; (v) charges or fees for any necessary governmental permits; (vi)
management fees (not to exceed three percent of annual base rentals from the
Property) under a management agreement, and related overhead and expenses; (vii)
premiums for hazard, liability, workmen's compensation or similar insurance upon
any or all of the Building and Property as maintained by Landlord under
Paragraph 20; (viii) costs arising under service contracts with independent
contractors for servicing, maintenance and repair of Building equipment and
systems; (ix) any assessments or charges imposed on Landlord or the Property
pursuant to the Declaration of Covenants, Conditions and Restrictions dated as
of April 30, 1998 of record in Deed Book 7033, Page 714 in the Office of the
Clerk of Jefferson County, Kentucky as amended from time to time provided such
assessments or charges are not included in any of the other costs described in
this subparagraph (a); and (x) the cost of any other items which, under
generally accepted accounting principles consistently applied from year to year
with respect to the Building and Property, constitute operating or maintenance
costs attributable to any or all of the Premises. Landlord and its agents
reserve the right to enter onto the Premises at reasonable times upon reasonable
notice from Landlord or its agent and accompanied by a representative of Tenant,
excepting emergency, for the specific purpose of managing and maintaining the
Premises. Landlord agrees that it shall make no profit from its collection of
Operating Costs.
(b) Notwithstanding anything to the contrary herein, Operating
Costs shall not include (i) any costs (including payments of principal and
interest under any mortgage and any ground rental payments) associated with the
initial construction of the Building, (ii) costs of development of the Property
or the Premises, (iii) costs of painting or decorating areas of the Building
other than common and public areas, and exterior elements (iv) brokerage
commissions, legal fees, construction costs and concessions or inducements to
any tenant in connection with leasing premises in the Building, and advertising
expenses in connection with the leasing of the Building, (v) legal fees relating
to tenant leases, financings of the Building, and zoning and land-use issues and
violations by Landlord under tenant leases, (vi) salaries and other compensation
paid to officers or executives of Landlord or any partner, principal or owner of
the entity comprising Landlord, (vii) fees or charges paid to any party
affiliated with Landlord on account of the provision by such entity of goods or
services constituting Operating Costs of the Building to the extent such fees or
charges exceed the fees or charges that would have been incurred to an
independent entity in an arm's length transaction, (viii) any expenses
reimbursable by any tenant of the Building, insurance company or condemning
authority, or actually reimbursed by any other source, (ix) charges for heating
and air conditioning service furnished to other tenants of the Building during
other than normal business hours as determined by Landlord, (x) advertising and
marketing costs, (xi) Landlord's income taxes, (xii) repairs or other work
occasioned by fire or other casualty of an insurable nature, but only to the
extent of any recovery actually received by Landlord, and (xiii) costs arising
from Landlord's civic activities or charitable or political contributions, all
of which costs are the responsibility of the Landlord except where agreed to
otherwise by the parties in writing.
(c) In order to provide for current payments, a statement of
Landlord's estimate of expenses as initially set forth in Paragraph 11 (a)
above, together with the amount of Tenant's Additional Rent resulting therefrom,
shall be submitted by Landlord to Tenant prior to the beginning of each calendar
year or part thereof during the Term. Tenant shall pay monthly, one-twelfth
(1/12th) of Tenant's pro rata share of Landlord's estimate of Operating Costs.
Further, from time to time during any calendar year, Landlord may submit to
Tenant a revised statement of Landlord's estimate of Tenant's pro rata share of
any Operating Costs and within thirty (30) days after delivery of such statement
(including any statement delivered after the expiration or termination of this
Lease), Tenant shall pay monthly to Landlord, as Additional Rent an amount equal
to one-twelfth (1/12th) of the revised amount so estimated. After the end of
each fiscal year, Landlord will, as soon as practical, submit to Tenant a
statement of the actual expenses, incurred for Operating Costs for the preceding
fiscal year. Such statement shall also indicate the amount of Tenant's excess
payment or underpayment based on the Landlord's estimate.
If Additional Rent paid by Tenant during the
preceding calendar year shall be in excess of, or less than its share of the
actual expenses incurred by Landlord for Operating Costs for that year, Landlord
and Tenant agree to make the appropriate adjustment following the submission of
Landlord's statement by Tenant paying any Additional Rent due with the
installment of rent due for the month following submission of Landlord's
statement, or Tenant deducting its excess payment from the installment of rent
for such month.
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During the final year of the Lease Term if Tenant
overpays its portion of Operating Costs, said over payment amount shall be
returned by Landlord within thirty (30) days of termination provided no event of
default has occurred or is occurring.
Within thirty (30) days after the receipt of
Landlord's statement showing actual figures for the year, Tenant shall have the
right to request copies of a statement of "Operating Costs of the Building"
prepared by the Landlord which shall be supplied to the Tenant within a
reasonable time after Tenant's written request, but no such request shall extend
the time for payment as set forth in Paragraph 11(c). Unless Tenant asserts
specific error(s) within fifteen (15) days after Landlord has complied with
Tenant's request, the statement submitted by Landlord shall be deemed to be
correct. Provided Tenant timely asserts such specific errors, and is current in
its obligations to Landlord for the payment of all sums due to Landlord as Rent
under this Lease, and is not otherwise in default in its obligations under this
Lease, Tenant shall have the right, exercisable no more than once per Lease
Year, to cause Landlord's books and records showing Tax and Operating Costs for
the prior Lease Year to be examined by a Certified Public Accountant engaged by
Tenant upon no less than thirty (30) days prior written notice and during normal
business hours at any time within one hundred and eighty (180) days following
the expiration of the prior Lease Year. No such Certified Public Accountant may
be engaged on a contingent fee basis. Such examination shall, at Landlord's
option, occur at the offices of the Landlord's management agent, and shall not
take more than thirty (30) days to complete. Any information obtained by Tenant
from such examination will be treated as confidential unless and until such
information has been publicly disclosed by Landlord; provided, however, that
nothing herein contained shall limit or impair the right or obligation of Tenant
to disclose such information when required to do so by law or to appropriate
regulatory authorities having jurisdiction over its affairs, or to use the same
in connection with the enforcement of the terms and conditions of the Lease. As
a condition of such examination, Landlord may require any party reviewing or
having access to Landlord's records to execute and deliver to Landlord a
confidentiality agreement substantially in the form attached hereto as Exhibit
E. In the event that Operating Costs or Tax for any Lease Year have been
overstated by seven percent (7%) or more, Landlord shall promptly reimburse or
credit Tenant for the reasonable costs of such audit, in addition to refunding
all overpayments previously made by Tenant. In the event that Operating Costs or
Tax for any Lease Year have been overstated by less than seven percent (7%),
Tenant shall bear the costs of the audit but Landlord shall promptly refund or
credit all overpayments previously made by Tenant.
In addition to the Rent and Additional Rent provided
elsewhere herein, Tenant shall be responsible for making direct payment of all
costs incurred in operating the Premises to the parties providing service to the
Premises, including without limitation, all utility costs, trash removal and
janitorial services. Tenant shall at all times maintain the Premises in a neat
and clean manner, and shall place all trash in its dumpster.
12. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not mortgage, pledge or encumber this Lease
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed.
(b) Tenant shall have the right to assign this Lease or sublet
all or any portion of the Premises throughout the Term, subject to Landlord's
prior written consent and approval, which consent shall not be unreasonably
withheld or delayed, provided, that Tenant remains fully liable for the
performance of all terms and conditions of this Lease including but not limited
to the payment of Base Rent and Additional Rent and that the assignee or
subtenant agrees to be bound by all terms, conditions, and provisions of this
Lease. If Tenant wants to assign, sublet or otherwise transfer all or part of
the Premises or this Lease, then Tenant shall give Landlord written notice
("Tenant's Request Notice") of the identity of the proposed assignee or
subtenant and its business, all terms of the proposed assignment or subletting,
the commencement date of the proposed assignment or subletting (the "Proposed
Sublease Commencement Date"), the area proposed to be assigned or sublet (the
"Proposed Sublet Space") and such other information as Landlord may reasonably
request. Tenant shall also transmit therewith the most recent financial
statement or other evidence of financial responsibility of such assignee or
subtenant and a certification executed by Tenant and such proposed assignee or
subtenant stating whether any premium or other consideration is being paid for
the proposed assignment or sublease. Any sublease, assignment or other transfer
shall be effective on forms approved by Landlord and Tenant. Tenant assigns to
Landlord any sum due to Tenant from any assignee, subtenant or occupancy of
Tenant as security for Tenant's performance of its obligations pursuant to this
Lease, provided, however, that Tenant shall have the license to collect such
rents provided prior to the occurrence of an Event of Default. Following an
Event of Default, Tenant authorizes each such assignee, subtenant or occupant to
pay such sum directly to Landlord if such assignee, subtenant or occupant
receives written notice from Landlord specifying that such rent shall be paid
directly to Landlord. Landlord's collection of such rent shall not be construed
as an acceptance of such assignee, subtenant or occupant as a tenant nor a
waiver of any default hereunder by Tenant. Notwithstanding anything in this
Paragraph 12 to the contrary, provided no Event of Default exists under this
Lease, or would exist but for the pendency of any cure periods provided for
under Paragraph 17, Tenant may, without Landlord's consent, but after providing
written notice to Landlord, assign this Lease or sublet all or any portion of
the Premises to any Related Entity (as hereinafter defined) provided that (i) in
the event of an assignment, such Related Entity assumes in full all of Tenant's
obligations under this Lease; (ii) Landlord is provided with a counterpart of
the fully executed agreement of assignment or sublease, which shall be in a form
reasonably satisfactory to Landlord; (iii) to the extent Tenant
6
remains in existence Tenant remains liable under the terms of this Lease; (iv)
such Related Entity is not a governmental entity or agency; (v) such Related
Entity's use requirement does not differ from the Permitted Use described in
Paragraph 5 hereof; and (vi) such Related Entity does not require additional
services other than those agreed to be provided by Landlord under the terms of
this Lease. "Related Entity" shall be defined as (i)any parent company,
subsidiary, or affiliate of Tenant, which controls, is controlled by, or is
under common control with Tenant, and/or (ii) any entity into which Tenant shall
be merged or consolidated, or which purchases substantially all of the assets of
Tenant and assumes the liabilities of Tenant under this Lease and continues in
the same business as that of Tenant.
(c) Intentionally Omitted.
(d) If Tenant proposes to assign this Lease other than to a
Related Entity, Landlord may, at its option, upon written notice to Tenant given
within ten (10) business days after its receipt of Tenant's Request Notice,
together with all other necessary information, elect to recapture the Premises
and terminate this Lease. If Tenant proposes to sublease all or part of the
Premises for the remainder of the Term, Landlord may, at its option upon written
notice to Tenant given within ten (10) business days after its receipt of
Tenant's Request Notice, together with all other necessary information, elect to
recapture such portion of the Premises as Tenant proposes to sublease and upon
such election by Landlord, this Lease shall terminate as to the portion of the
Premises recaptured. If a portion of the Premises is recaptured, the Rent
payable under this Lease shall be proportionately reduced based on the square
footage of the Rentable Square Feet retained by Tenant and the square footage of
the Rentable Square Feet leased by Tenant immediately prior to such recapture
and termination, and Landlord and Tenant shall thereupon execute an amendment to
this Lease in accordance therewith. Landlord may thereafter, without limitation,
lease the recaptured portion of the Premises to the proposed assignee or
subtenant without further liability to Tenant. Upon any such termination,
Landlord and Tenant shall have no further obligations or liabilities to each
other under this Lease with respect to the recaptured portion of the Premises,
except with respect to obligations or liabilities which accrue or have accrued
hereunder as of the date of such termination (in the same manner as if the date
of such termination were the date originally fixed for the expiration of the
term hereof).
(e) If any sublease, assignment or other transfer (whether by
operation of law or otherwise) provides that the subtenant, assignee or other
transferee (or any affiliate thereof) is to pay any amount in excess of the rent
and other charges due under this Lease, then, whether such excess be in the form
of an increased rental, lump sum payment, payment for the sale or lease of
fixtures or other leasehold improvements or any other form (and if the
applicable space does not constitute the entire Premises, the amount and
existence of such excess shall be determined on a prorata basis), Tenant shall
pay to Landlord fifty percent (50%) of any such excess within ten (10) days.
Tenant shall in all events diligently pursue the collection of all amounts owed
by any subtenant, assignee or other transferee. Landlord shall have the right to
inspect and audit Tenant's books and records relating to any sublease,
assignment or other transfer.
13. CASUALTY DAMAGE. In the event of damage or destruction of the
Premises by fire or any other casualty, this Lease shall not be terminated, but
the Premises shall be promptly and fully repaired or restored, as the case may
be, by Landlord at its own cost and expense in an amount not to exceed the
amount of insurance proceeds available. Due allowance, however, shall be given
for reasonable time required for adjustment and settlement of insurance claims,
and for such other delays as may result from government restrictions, and
controls on construction, if any, and for strikes, national emergencies and
other conditions beyond the control of Landlord. It is agreed that in any of the
aforesaid events, this Lease shall continue in full force and effect, but if the
condition is such so as to make the entire Premises untenantable for practical
use for Tenant's purposes, then the Rent which Tenant is obligated to pay
hereunder shall xxxxx as of the date of the occurrence until the Premises have
been fully and completely restored by Landlord. Any unpaid or prepaid Rent for
the month in which said condition occurs shall be prorated. If the Premises are
partially damaged or destroyed but the Tenant can still make practical use of
the balance of the Premises; then during the period that Tenant is deprived of
the use of the damaged portion of said Premises, Tenant shall be required to pay
Rent covering only that part of the Premises that it is able to occupy, based on
that portion of total rent which the amount of square foot area remaining that
can be occupied bears to the total square foot area of all the Premises covered
by this Lease. In the event that twenty five percent (25%) or more of the
Premises are damaged or destroyed by fire or other casualty so as to be
untenantable for practical use for Tenant's purposes and it shall require more
than one hundred eighty (180) days for Landlord to substantially complete
restoration of same as reasonably concurred on by Tenant, then either party
hereto upon written notice delivered within thirty (30) days of the fire or
other casualty to the other party may terminate this Lease, in which case the
Rent shall be apportioned and paid to the date of said fire or other casualty.
Subject to the foregoing, no compensation, or claim, or diminution of Rent will
be allowed or paid, by Landlord, by reason of consequential damages,
inconvenience, annoyance, or injury to business, arising from the necessity of
repairing the Premises or any portion of the Building of which they are a part,
however the necessity may occur.
7
14. MAINTENANCE AND REPAIRS.
(a) Subject to Tenant's responsibilities set forth in
Paragraph 14 (d), Landlord shall keep the Building and all machinery, equipment
and fixtures attached to, or used in connection with the operation of the
Building, including all electrical, heating, mechanical, sanitary, sprinkler,
utility, power, plumbing, cleaning, refrigeration, ventilating, air conditioning
and elevator systems and equipment (excluding, however, lines, improvements,
systems and machinery for water, gas, steam and electricity owned and maintained
by any public utility company or governmental agency or body and excluding also
any of Tenant's property or plate glass) in good order and repair. Landlord
reserves the right of access to the Premises for the purposes of such operation,
cleaning, maintenance, safety, security and repairs, and agrees that it shall
use reasonable efforts (except in the case of emergency) to provide reasonable
advance notice to Tenant of its intent to enter the Premises for such purposes.
The cost for maintaining the Building and Premises in good order and repair as
contemplated by this Paragraph 14 (a) shall be an Operating Cost for purposes of
Paragraph 11 hereof. There shall be no abatement in rents due and payable
hereunder and no liability on the part of Landlord by reason of any
inconvenience, annoyance or disruption arising from Landlord's making reasonable
repairs, additions or improvements to the Building or Premises in accordance
with its obligations hereunder provided Landlord is diligently pursuing same.
Tenant will not do or permit anything to be done in the Premises or the Building
of which they form a part or bring or keep anything therein which shall in any
way increase the rate of fire or other insurance for said Building, or on the
property kept therein, or obstruct, or interfere with the rights of other
tenants, or in any way injure or annoy them, or those having business with them,
or conflict with them or conflict with the fire laws or regulations, or with any
insurance policy upon said Building or any part thereof, or with any statutes,
rules or regulations enacted or established by the appropriate governmental
authority. If any increase in the rate of fire insurance or other insurance is
stated by any insurance company or by any insurance rate bureau due to any
activity or equipment of Tenant, such statement shall be conclusive evidence
that the increase in such rate is caused by such activity or equipment, and
Tenant shall be liable for such increase and shall reimburse Landlord therefor
upon demand, and any such sum shall be considered Additional Rent payable
hereunder.
In the event Landlord elects to make substantial
improvements or additions to the Building, Property or Premises, such
improvements or additions shall not adversely affect Tenant's use of or access
to the Premises unless Landlord has obtained the prior written consent of
Tenant, which consent shall not be unreasonably withheld, to make such
improvements or additions which affect Tenant's Premises in an adverse manner.
Landlord shall be free to make improvements or additions to the Building,
Property or Premises which do not have an adverse effect on Tenant's use of or
access to the Premises.
(b) After substantial completion of Building or Premises,
except as hereinafter expressly set forth Tenant will not make any alterations,
installments, changes, replacements, additions or improvements, collectively
"Alterations", in or to the Premises or any part thereof, without the prior
written consent of Landlord, not to be unreasonably withheld or delayed. In the
event Landlord elects to have the Alterations remain upon the Premises, said
written consent shall include Landlord's election. It is expressly understood
that all Alterations shall be performed in a good and workmanlike manner and
shall conform to all rules and regulations established from time to time by any
applicable underwriter's association and conform to all requirements of local,
state and federal governments. All Alterations shall be made at Tenant's sole
expense, by contractors, or subcontractors reasonably approved by Landlord, and
only after (i) Tenant has obtained all necessary permits from governmental
authorities and (ii) Tenant has submitted complete plans and specifications to
Landlord with respect to the Alterations and Landlord has approved them. If any
mechanic's lien is filed against the Premises or the Building for work or
materials furnished to Tenant, the lien shall be discharged or bonded off by
Tenant, solely at Tenant's expense, within thirty (30) days after Tenant
receives notice thereof. Tenant shall indemnify and hold harmless Landlord from
any and all expenses (including attorney's fees), liens and claims or damage to
persons, property, or the Building which may arise from the making of any
Alterations. Tenant will deliver to Landlord an architect's certification that
the Alterations were constructed in accordance with the plans and specifications
previously approved by Landlord.
It is also expressly understood that all Alterations
upon the Premises (whether with or without Landlord's consent), shall at the
election of Landlord, as provided in the written consent required herein above,
remain upon the Premises and be surrendered with the Premises at the expiration
of this Lease without disturbance, molestation or injury. Notwithstanding the
foregoing, provided (i) this Lease is in full force and effect, (ii) no material
adverse change in Tenant's financial condition has occurred, and (iii) that
Tenant shall not have been in default more than twice during the term of this
Lease and shall not then be in default in the performance of any obligation
under this Lease, Tenant shall have the right to remove, prior to the expiration
or termination of this Lease, all movable furniture, fixtures or equipment
installed in the Premises solely at Tenant's expense. Should Landlord elect that
alterations, installments, changes, replacements, additions to or improvements
made by Tenant are not to remain on the Premises, Tenant hereby agrees that
within five (5) days following the expiration of the Term of this Lease,
Landlord shall have the right to cause same to be removed at Tenant's sole cost
and expense. Tenant hereby agrees to reimburse Landlord for the reasonable cost
of such removal together with the cost of restoring the Premises to its original
condition.
(c) Tenant shall not install any other equipment of any kind
or nature whatsoever which will or may necessitate any changes, replacements or
additions to or require the use of the water system, air conditioning system or
the electrical system of the Premises without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or
8
delayed. In the event that Tenant wishes to install machinery or mechanical
equipment which may cause noise or vibration to be transmitted to the structure
of the Building or any space therein, such machinery shall be installed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate such noise and vibration. Tenant may, at its
expense, install and remove additional equipment and machinery used or useful in
Tenant's business, which equipment and machinery shall remain the property of
Tenant and shall not become part of the real estate, provided that such
installation shall not reduce the value of the Premises or its usefulness. Any
equipment of Tenant not removed by Tenant within ten (10) days after the
expiration or earlier termination of this Lease shall be considered abandoned by
Tenant and may be appropriated, sold, destroyed or otherwise disposed of by
Landlord without first giving notice thereof and without obligation to account
therefor. Notwithstanding any other provision of this Lease, Tenant may not
install any equipment which emits electromagnetic, microwave, ultrasonic, laser,
or other radiation which Landlord determines causes a risk to persons or
property, or interferes with telecommunications transmissions or computer use.
(d) Subject to Landlord's obligations to maintain and repair
the Premises in accordance with this Paragraph 14, Tenant agrees that it will
take good care of the Premises and the fixtures and plate glass therein and
will, at the expiration or other termination of the Term hereof, surrender and
deliver up the same in like good order and conditions as the same now is or
shall be at the commencement of the Term hereof, ordinary wear and tear excepted
and shall repair any damage caused by its removal of trade fixtures. Without
limiting the generality of the foregoing, Tenant shall promptly make all repairs
to the Premises or to any part of the Building, to the extent such repairs are
not covered by insurance and if such repairs are necessitated by any act or
omission of Tenant, any subtenant, assignee or concessionaire of Tenant, any of
its respective agents or employees, or by the failure of Tenant to perform any
of its obligations under this Lease.
15. PARKING AND LOADING AREAS.
(a) During the Term of this Lease, and any renewal thereof,
Tenant shall have, without charge, the right to utilize two hundred (200)
vehicle parking spaces in the Building's parking facilities on a nonexclusive
basis with other tenants of the Building, upon such non-financial terms and
conditions as may from time to time be established by Landlord. Landlord
reserves the right in its absolute discretion to determine whether the parking
facilities are becoming crowded and to allocate and assign parking spaces among
Tenant and the other tenants. It is understood and agreed that Landlord assumes
no responsibility, and shall not be held liable, unless caused by Landlord's
negligence, for any damage or loss to any automobiles parked in the parking
facilities or to any personal property located therein, or for any injury
sustained by any person in or about the parking facilities.
(b) During the Term of this Lease, and any renewal thereof,
Tenant shall have, without charge, the right to utilize the paved areas adjacent
to the Premises which have been designed and constructed for use as loading
docks to serve the Premises and to provide access to the drive-in door in the
Premises. Landlord shall not be liable to Tenant as a result of any inability of
Tenant to access such docks or drive-in door due to the parking of vehicles in
the vicinity of such loading docks and drive-in area, or otherwise.
16. SIGNAGE. Tenant shall be entitled to install, at its sole expense,
one (1) building mounted exterior sign and one (1) monument sign providing
identification of Tenant, at Tenant's expense, subject to Landlord's reasonable
approval as to location, design, color, lighting, and specifications, and to
applicable Jefferson County regulations and restrictions of record.
17. EVENT OF DEFAULT.
(a) Definition. As used in the provisions of this Lease, each
of the following events shall constitute, and is hereinafter referred to as, an
"Event of Default":
(i) If Tenant (1) fails to pay Rent, Additional Rent
or any other sum which Tenant is obligated to pay by any provision of this
Lease, when and as it is due and payable hereunder and without demand therefor,
or (2) in any material respect violates any of the terms, conditions or
covenants set forth in the provisions of this Lease; or
(ii) If Tenant (1) applies for or consents to the
appointment of a receiver, trustee or liquidator of Tenant or of all or a
substantial part of its assets, (2) files a voluntary petition in bankruptcy or
admits in writing its inability to pay its debts as they come due, (3) makes an
assignment for the benefit of its creditors, (4) files a petition or an answer
seeking a reorganization or an arrangement with creditors, or seeks to take
advantage of any insolvency law, (5) performs any other act of bankruptcy, or
(6) files an answer admitting the material allegations of a reorganization
insolvency proceeding.
(iii) If an order of relief or other order, judgement
or decree is entered by any court of competent jurisdiction adjudicating Tenant
as insolvent, or otherwise entitled to the protection of or subject to any
bankruptcy statute, approving a petition seeking such a reorganization, or
appointing a receiver, trustee or liquidator of Tenant or otherwise commence
with respect to Tenant or any of its assets any proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment,
9
receivership or similar law, and if such order, judgement, decree or proceeding
continues unstayed for more than sixty (60) consecutive days after the
expiration of any stay thereof.
(b) Notice to Tenant, Grace Period. Anything contained in the
provisions of this Paragraph to the contrary notwithstanding, upon the
occurrence of an Event of Default Tenant shall not be deemed to be in default,
and Landlord shall not exercise any right or remedy which it holds under any
provision of this Lease or under applicable law unless and until;
(i) Landlord has given written notice thereof to
Tenant, and
(ii) Tenant has failed, (1) if such Event of Default
consists of the failure to pay money, within three (3) calendar days after the
date Landlord presents notice, to pay all of such money, together with interest
thereon and any late payment charge which may be due hereunder of five percent
(5%) levied on all monies due to Landlord as of the Notice of Default in
accordance with Paragraph 3(g), or (2) if such Event of Default consists of
something other than the failure to pay money, within fifteen (15) business days
thereafter to commence actively, diligently and in good faith to proceed to cure
such Event of Default and to continue to do so until it is fully cured; provided
however, if Tenant commences to cure such default during such fifteen (15)
business day period, and such default cannot be cured within such period despite
diligent effort, Tenant shall be afforded such additional time as may reasonably
required to effect a cure provided that Tenant continues to diligently pursue
such cure.
(iii) No such notice shall be required, and Tenant
shall be entitled to no such grace period, (1) more than twice with respect to
monetary default during each twelve (12) month period of the Term, or (2) if
Tenant has substantially terminated or is in the process of substantially
terminating its continuous occupancy and use of the Premises for the purpose set
forth in the provisions of Paragraph 5, or (3) if any Event of Default
enumerated in the provisions of Paragraphs 17(a)(ii), 17(a)(iii) or 17(b)(ii)
has occurred.
(c) Landlord's Rights upon Event of Default. Upon the
occurrence of an Event of Default, Landlord, at its option, may terminate this
Lease, and with our without terminating this Lease, may pursue any and all other
remedies available to it under the laws of the Commonwealth of Kentucky,
including, by way of example rather than of limitation, the rights to:
(i) re-enter and repossess the Premises, with lawful
force, and any and all improvements thereon and additions thereto;
(ii) at Landlord's option, immediately recover an
amount equal to the present value (as of the date of Tenant's default) of the
Base Rent and Additional Rent which would have become due through the date on
which the Lease Term would have expired but for Tenant's default, which damages
shall be payable to Landlord in a lump sum on demand. For purposes of this
Section, present value shall be computed by discounting at a rate equal to one
(1) whole percent point above the "prime rate" then in effect at Xxxxxx Guaranty
Trust Company of New York, and collect such balance in any manner not
inconsistent with applicable law; and/or
(iii) relet any or all of the Premises for Tenant's
account for any or all of the remainder of the Lease Term, or pay to Landlord,
any deficiency in the Rent and any other sum which Tenant is obligated to pay
resulting, with respect to such remainder, from such reletting, as well as the
out-of-pocket cost to Landlord of any reasonable fees relating to reletting of
the Premises including but not limited to construction costs, brokerage fees,
reasonable attorney's fees or of any repairs or other action (including those
taken in exercising Landlord's rights under any provision of this Lease) taken
by Landlord on account of such Event of Default.
Landlord's rights and remedies set forth in this Lease are cumulative and in
addition to Landlord's other rights and remedies at law or in equity, including
those available as a result of any anticipatory breach of this Lease. Landlord's
exercise of any such right or remedy shall not prevent the concurrent or
subsequent exercise of any other right or remedy. Landlord's delay or failure to
exercise or enforce any of Landlord's rights or remedies or Tenant's obligations
shall not constitute a waiver of any such rights, remedies or obligations.
Landlord shall not be deemed to have waived any default unless such waiver
expressly set forth in an instrument signed by Landlord. Any such waiver shall
not be construed as a waiver of any covenant or condition except as to the
specific circumstances described in such waiver. Neither Tenant's payment of an
amount less than a sum due nor Tenant's endorsement or statement on any check or
letter accompanying such payment shall be deemed an accord and satisfaction.
Notwithstanding any request or designation by Tenant, Landlord may apply any
payment received from Tenant to any payment then due. Landlord may accept the
same without prejudice to Landlord's right to recover the balance of such sum or
to pursue other remedies. Re-entry and acceptance of keys shall not be
considered an acceptance of a surrender of this Lease.
(d) Right of Landlord to Cure Tenant's Default. If Tenant
defaults in the performance of any of its obligations under this Lease, then
Landlord shall have the right (but not the duty) to perform such obligation, and
Tenant shall reimburse Landlord for any costs and expenses thereby incurred,
together with interest thereon at that rate per annum which is two
10
percent (2%) greater than the "prime rate" then in effect at Xxxxxx Guaranty
Trust Company of New York, from the date such costs and expenses are incurred by
Landlord to the date of payment thereof by Tenant; provided, however, that
nothing herein contained shall be construed or implemented in such a manner as
to allow Landlord to charge or receive interest in excess of the maximum legal
rate then allowed by law. Such payment and interest shall constitute Additional
Rent hereunder, which shall be due and payable with the next monthly installment
of Rent; but the making of such payment or the taking of such action by Landlord
shall not operate to cure such default or to stop Landlord from the pursuit of
any remedy to which Landlord would otherwise be entitled.
(e) Lien on Personal Property. Pursuant to KRS 383.070,
Landlord shall have a lien on all of Tenant's tangible and intangible personal
property now or hereafter located upon the Premises to secure the payment of
four (4) months' rent. Landlord's rights and remedies provided in this section
shall be in addition to, and not in lieu of, any other rights and remedies
available to Landlord pursuant to the terms of this Lease or pursuant to
applicable law.
(f) No Waiver. If Landlord institutes legal proceedings
against Tenant as to any matter under this Lease and a compromise or settlement
is made, Landlord shall not be deemed to have waived any rights under this Lease
except as explicitly set forth in a written agreement signed by Landlord
evidencing such compromise or settlement. No waiver by Landlord of any breach of
any covenant, condition, or agreement in this Lease shall operate as a waiver of
such covenant or condition itself or of any subsequent breach thereof. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installments of Rent herein stipulated shall be deemed to be other than a
payment on account, nor shall any endorsement or statement on any check or
letter accompanying a check for payment of Rent be deemed an accord and
satisfaction, and Landlord may accept such check prepayment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue any other
remedy provided in the Lease. No re-entry by Landlord, and no acceptance by
Landlord of keys from Tenant, shall be considered an acceptance of a surrender
of the Lease.
18. HOLDING OVER. Tenant acknowledges that it is extremely important
that Landlord have substantial advance notice of the date on which Tenant will
vacate the Premises, because Landlord will (a) require an extensive period to
locate a replacement tenant, and (b) plan its entire leasing and renovation
program for the Building in reliance on its lease expiration dates. Tenant also
acknowledges that if Tenant fails to surrender the Premises at the expiration or
earlier termination of the Lease Term, then it will be conclusively presumed
that the value to Tenant of remaining in possession, and the loss that will be
suffered by Landlord as a result thereof, far exceed the Base Rent and
Additional Rent that would have been payable had the Lease Term continued during
such holdover period. Therefore, if Tenant (or anyone claiming through Tenant)
does not immediately surrender the Premises or any portion thereof upon the
expiration or earlier termination of the Lease Term, then the rent shall be
increased to equal the greater of (1) the fair market rent for the Premises, or
two hundred percent (200%) of the Base Rent, Additional Rent and other sums that
would have been payable pursuant to the provisions of this Lease if the Lease
Term had continued during such holdover period. Such rent shall be computed by
Landlord on a monthly basis and shall be payable on the first day of such
holdover period and the first day of each calendar month thereafter during such
holdover period until the Premises have been vacated. Notwithstanding any other
provision of this Lease, Landlord's acceptance of such rent shall not in any
manner adversely affect Landlord's other rights and remedies, including
Landlord's right to evict Tenant and to recover all damages. Any holdover shall
be deemed to be a tenancy-at-sufferance and not a tenancy-at-will or tenancy
from month-to-month; provided, however, that Landlord may, in addition to its
other remedies, elect, in its sole discretion, to treat such holdover as the
creation of a month-to-month tenancy with Tenant. In no event shall any holdover
be deemed a permitted extension or renewal of the Lease Term, and nothing
contained herein shall be construed to constitute Landlord's consent to any
holdover or to give Tenant any right with respect thereto. Except as otherwise
specifically provided in this Article, all terms of this Lease shall remain in
full force and effect during the holdover period.
19. LANDLORD'S RIGHT OF ENTRY. Landlord and its agents shall be
entitled to enter the Premises at any reasonable time, with reasonable prior
notice except in emergency,
(a) To inspect the Premises;
(b) To exhibit the Premises to any existing or prospective
purchaser or mortgagee thereof or, during the last nine (9) months of the Term,
any prospective tenant thereof;
(c) To make any reasonable and necessary alteration,
improvement or repair to the Premises; or
(d) For any other reasonable purpose relating to the operation
or maintenance of the Premises; provided, that Landlord shall (i) give Tenant
reasonable prior notice of its intention to enter the Premises, except in the
case of emergency, and (ii) use reasonable efforts to avoid thereby interfering
any more than is reasonably necessary with Tenant's use and enjoyment thereof.
11
20. LIABILITY, TENANT'S INDEMNITY, INSURANCE.
(a) Landlord shall not be liable for, and Tenant shall
indemnify and hold Landlord harmless from and against, any injury, loss or
damage of whatever nature to any persons or property arising within the Premises
unless caused by the willful act or gross negligence of Landlord, its agents,
employees or contractors. Commencing with the date on which the Premises are
made available to Tenant and continuing thereafter throughout the Lease Term,
Tenant shall maintain, at its sole expense, (i) general comprehensive public
liability insurance, including bodily injury, property damage or other loss,
insuring Tenant, Landlord, Landlord's Lender, and Landlord's appointed agent
with respect to the Premises and their appurtenances, in a company or companies
reasonably satisfactory to Landlord, in an amount not less than Three Million
Dollars ($3,000,000), (ii) all-risk property and casualty insurance, including
theft, written at replacement cost value and with replacement cost endorsement,
covering all of Tenant's personal property in the Premises, and (iii) if, and to
the extent required by law, worker's compensation or similar insurance offering
statutory coverage and containing statutory limits. All such insurance shall:
(1) be issued by a company that is licensed to do business in the jurisdiction
in which the Building is located, that has been approved in advance by Landlord
and that has a rating equal to or exceeding A:XI from Best's Insurance Guide;
(2) name Landlord, its managing agent (or its successor) and the holder of any
Mortgage as additional insureds and/or loss payees as applicable (as their
interests may appear), except that the liability insurance shall not name
Landlord's Mortgage holder as an additional insured; (3) contain an endorsement
that such insurance shall remain in full force and effect notwithstanding that
the insured may have waived its right of action against any person or entity
prior to the occurrence of a loss (Tenant hereby waiving its right of action and
recovery against and releasing Landlord and its employees, affiliates, partners
and agents from any and all liabilities, claims and losses for which they may
otherwise be liable to the extent Tenant is covered by insurance carried or
required to be carried under this Lease); (4) provide that the insurer waives
all right of recovery by way of subrogation against Landlord, its partners,
affiliates, agents and employees, (5) be acceptable in form and content to
Landlord; (6) be primary and non-contributory; and (7) contain an endorsement
prohibiting cancellation, failure to renew, reduction in amount of insurance or
change of coverage (A) as to the interests of Landlord or the holder of the
Mortgage by reason of any act or omission of Tenant, and (B) without the
insurer's giving Landlord thirty (30) days' prior written notice of such action.
No such policy shall contain any deductible provision except as otherwise
approved in writing by Landlord, which approval shall not be unreasonably
withheld. Landlord reserves the right from time to time to require Tenant to
obtain higher minimum amounts or different types of insurance. Tenant shall
deliver a certificate of all such insurance and receipts evidencing payment of
the premium for such insurance (and, upon request, copies of all required
insurance policies, including endorsements and declarations) to Landlord
concurrently with Tenant's execution of this Lease and at least annually
thereafter.
In addition, Tenant shall require any contractor
retained by it to perform any Alteration to carry and maintain at Tenant's or
such contractor's expense (and furnish the policy, policies or certificates
thereof to Landlord and Landlord's Lender) during such times as contractor is
working in the Premises, (i) comprehensive general liability insurance policy,
including, but not limited to, contractor's liability coverage, contractual
liability coverage, complete operations coverage, broad form property damage
endorsement and contractor's protective liability coverage, to afford protection
with limits per person and for each occurrence, of not less than One Million
Dollars ($1,000,000), combined single limit, with respect to personal injury and
death and property damage, such insurance to provide for no deductible, to name
Landlord and Landlord's Lender as additional insureds and (ii) worker's
compensation insurance or similar insurance in form and amounts as required by
law.
Landlord shall maintain insurance coverage for the
Building, the cost of such insurance shall be an Operating Cost for purposes of
Paragraph 11 hereof, in such amounts and with such carriers as shall be
reasonable and necessary from time to time including (a) fire insurance, with
standard extended coverage endorsement including demolition costs, increased
costs of construction, and contingent liability from changes in building codes
on the Premises, in an amount not less than the full replacement value from time
to time of the Premises; (b) flood insurance in an amount Landlord may from time
to time reasonably require, if the Premises are located in an area designated as
"flood prone" pursuant to the national Flood Insurance Act of 1968 and the Flood
Disaster Protection Act; (c) difference-in-conditions coverage (including flood
and earthquake to the extent available) to the extent not covered under (a) and
(b) above, in an amount Landlord from time to time may reasonably require; (d)
rental value insurance in an amount equal to one (1) year gross rent; (e) steam
boiler and machinery breakdown direct damage insurance and third-party liability
coverage (if applicable and if not covered under the comprehensive general
liability policy), with full comprehensive coverage on a repair and replacement
cost basis, for all boilers and machinery which form a part of the Premises,
including business interruption insurance in connection therewith in accordance
with (d) above; and (f) such other insurance as Landlord may require against
such other insurable hazards which at the time are customary and prudent under
the circumstances.
(b) All damages to the Premises or the Building of which they
are a part, caused by Tenant, or the agents, servants, employees and invitees of
Tenant, will be repaired by Landlord at the expense of Tenant, to the extent not
covered by insurance proceeds, with the right on the part of Landlord to elect
in its discretion to regard the same as Additional Rent, in which event such
cost or charge shall become Additional Rent payable with the installment of Rent
next becoming due or thereafter falling due under the terms of this Lease. This
provision shall be construed as an additional remedy granted to Landlord and not
in limitation of any other rights and remedies which Landlord has or may have in
said circumstances.
12
(c) All personal property of Tenant in the Premises or in the
Building of which the Premises is a part shall be at the sole risk of Tenant.
Landlord shall not be liable for any accident to or damage to the property of
Tenant resulting from the use or operation of the heating, cooling, electrical
or plumbing apparatus or any other cause whatsoever. Landlord shall not be
liable in damages, nor shall this Lease be affected, for conditions arising or
resulting, and which may affect the Building of which the Premises is a part,
due to construction on contiguous premises unless such construction renders the
Premises untenantable or of no practical use for Tenant's purposes.
(d) Landlord assumes no liability or responsibility whatsoever
in the conduct and operations of the business to be conducted in the Premises.
Landlord shall not be liable for any accident to or injury to any person or
persons or property in or about the Premises which are caused by the conduct and
operation of said business or by virtue of equipment or property of Tenant in
said Premises.
(e) Except to the extent caused by the willful misconduct or
gross negligence of Landlord, its agents or employees, Landlord shall have no
liability to Tenant, its employees, agents, invitees, licensees, customers,
clients, family members or guests for any damage, compensation or claim arising
from the repair by Landlord of any portion of the Premises or the Building, any
interruption in the use of the Premises, accident or damage resulting from the
use or operation (by Landlord, Tenant or any other person) of heating, cooling,
electrical or plumbing equipment or apparatus, or from untenantability of the
Premises resulting from fire or other casualty subject to Paragraph 13, or from
any robbery, theft, mysterious disappearance and/or any other casualty, or from
any leakage in any part or portion of the Premises or the Building, or from
water, rain or snow that may leak into or flow from any part of the Premises, or
from drains, pipes or plumbing work in the Building, or from any other cause
whatsoever. Any goods, property or personal effects, stored or placed by Tenant
in or about the Premises shall be at the risk of Tenant, and Landlord shall not
in any manner be held responsible therefor. The employees of Landlord are
prohibited from receiving any packages or other articles delivered to the
Premises for Tenant, and if any such employee receives any such package or
article, at the request of Tenant, such employee shall be the agent of Tenant
for such purposes and not of Landlord.
21. WAIVER OF SUBROGATION. If either party hereto is paid or
indemnified by any proceeds under any policy of insurance naming such party as
an insured (or would have been paid or indemnified by such proceeds if it had
maintained all of the insurance coverages it is required under this Lease to
maintain), on account of any loss, damage or liability, then such party hereby
releases the other party hereto from any and all liability for such loss, damage
or liability, notwithstanding that such loss, damage or liability, may arise out
of the negligent act or omission of the other party, its agents or employees.
22. EMINENT DOMAIN.
(a) If any or all of the Premises are taken by the exercise of
any power of eminent domain or are conveyed to or at the direction of any
governmental entity under a threat of any such taking (each of which is
hereinafter referred to as a "Condemnation"), Landlord, subject to subparagraph
(c) below shall be entitled to collect from the condemning authority thereunder
the entire amount of any award made in any such proceeding or as consideration
for such deed, without deduction therefrom for any leasehold or other estate
held by Tenant by virtue of this Lease.
(b) Tenant, subject to subparagraph (c) below, hereby (i)
assigns to Landlord all of Tenant's right, title and interest, if any, in and to
any such award, (ii) waives any right which it may otherwise have in connection
with such Condemnation, against Landlord or such condemning authority, to any
payment for (a) the value of the then unexpired portion of the Term, (b)
leasehold damages (except the unamortized portion of any improvements paid for
by Tenant and title to which is retained by Tenant, provided such amount does
not diminish and/or delay any award or payment which Landlord would otherwise
receive as a result of such condemnation), and (c) any damage to or diminution
of the value of Tenant's leasehold interest hereunder or any portion of the
Premises not covered by such Condemnation; and (iii) agrees to execute any and
all further documents which may be required in order to facilitate the
Landlord's collection of any and all such awards.
(c) Notwithstanding the foregoing provisions of this
Paragraph, Tenant may seek a separate award, so long as such separate award in
no way diminishes and/or delays any award or payment which Landlord would
otherwise receive as a result of such Condemnation.
23. EFFECT OF CONDEMNATION.
(a) If (i) all of the Premises are covered by a Condemnation,
or (ii) if any part of the Premises is covered by a Condemnation and the
remainder thereof is insufficient for the reasonable operation therein of
Tenant's business, or (iii) any of the Building is covered by a Condemnation
and, in Landlord's reasonable opinion, reasonably concurred in by Tenant, it
would be impractical to restore the remainder thereof, then, in any such event,
the Term shall terminate on the date upon which possession of so much of the
Premises as is covered by such Condemnation is taken by the condemning authority
thereunder, and all Rent (including, by way of example rather than of
limitation, any Operating Costs payable pursuant to the provisions of Paragraph
11), Tax, and other charges payable hereunder shall be prorated and paid to such
date.
13
(b) If there is a Condemnation and the Term does not terminate
pursuant to the foregoing provisions of this Paragraph, the operation and effect
of this Lease shall be unaffected by such Condemnation, except that the Base
Monthly Rent payable under the provisions of Paragraph 3 shall be reduced in
proportion to the square footage, if any, of the Premises covered by such
Condemnation.
(c) If there is a Condemnation, Landlord shall have no
liability to Tenant on account of any (i) interruption of Tenant's business upon
the Premises, (ii) diminution in Tenant's ability to use the Premises, or (iii)
other injury or damage sustained by Tenant as a result of such Condemnation.
(d) Except for any separate award to Tenant under the
provisions of Paragraph 22(c), Landlord shall be entitled to conduct any such
condemnation proceeding and any settlement thereof free of interference from
Tenant, and Tenant hereby waives any right which it might otherwise have to
participate therein.
24. MECHANIC'S AND MATERIALMEN'S LIENS. Tenant shall bond, remove or
have removed any mechanic's, materialmen's or other lien filed or claimed
against any or all of the Premises, by reason of labor or materials provided for
or at the request of Tenant or any of its contractors or subcontractors within
thirty (30) days of notice of filing said lien.
25. QUIET ENJOYMENT. Landlord hereby covenants that Tenant, on paying
the Rent and performing the covenants set forth herein, shall without
interference from Landlord peaceably and quietly hold and enjoy, throughout the
Term, (i) the Premises, and (ii) such rights as Tenant may hold hereunder with
respect to the Premises.
26. SURRENDER.
(a) Upon the expiration or earlier termination of the Term,
Tenant shall surrender the Premises to Landlord in good order, cleanliness and
repair, ordinary wear and tear excepted.
(b) Subject to Paragraph 14(c) hereof, any and all
improvements, repairs, alterations and all other property attached to, used in
connection with or otherwise installed upon the Premises (i) shall, immediately
upon the completion of the installation thereof, be and become Landlord's
property without payment therefor by Landlord, and (ii) shall be surrendered to
Landlord upon the expiration or earlier termination of the Term, except that any
machinery, equipment or fixtures installed by Tenant and used in the conduct of
Tenant's trade or business (rather than to service the Premises) shall remain
Tenant's property and shall be removed by Tenant within five (5) days after the
expiration or earlier termination of the Term, and Tenant shall promptly and
thereafter fully restore any of the Premises or the Building damaged by such
installation or removal thereof.
27. SUBORDINATION. This Lease is subject and subordinate to all ground
or underlying leases and to all mortgages and/or deeds of trust which may now or
hereafter affect such leases or the real property of which the Premises form a
part,(the "Mortgage") and to all renewals, modifications, consolidations,
re-castings, replacements and extensions thereof. The holder of the Mortgage to
which this Lease is subordinate shall have the right at any time to declare this
Lease to be superior to the lien, provisions, operation and effect of such
Mortgage and Tenant shall execute, acknowledge and deliver all confirming
documents required by such holder. In confirmation of the foregoing
subordination, Tenant shall at Landlord's request promptly execute any requisite
or appropriate document. Tenant appoints Landlord as Tenant's attorney-in-fact
to execute any such document for Tenant if Tenant fails to execute same within
ten (10) business days after request therefor. Tenant waives the provisions of
any statute or rule of law now or hereafter in effect which may give or purport
to give Tenant any right to terminate or otherwise adversely affect this Lease
or Tenant's obligations in the event any such foreclosure proceeding is
prosecuted or completed or in the event the Property, the Building or Landlord's
interest therein is sold at a foreclosure sale or by deed in lieu of
foreclosure. If this Lease is not extinguished upon such sale or by the
purchaser following such sale, then, at the request of such purchaser, Tenant
shall attorn to such purchaser and shall recognize such purchaser as the
landlord under this Lease. Upon such attornment such purchaser shall not be (a)
bound by any payment of the Base Rent or Additional Rent more than one (1) month
in advance, (b) bound by any amendment of this Lease made without the consent of
the holder of the Mortgage existing as of the date of such amendment, (c) liable
for damages for any breach, act or omission of any prior landlord, or (d)
subject to any offset or defenses which Tenant might have against any prior
landlord. Within five (5) business days after receipt, Tenant shall execute,
acknowledge and deliver any requisite or appropriate document submitted to
Tenant confirming such attornment.
28. ESTOPPEL CERTIFICATE. Landlord and Tenant agree from time to time,
upon not less than ten (10) business days' prior written notice by the other
party, to execute, acknowledge and deliver to such party or to any existing or
prospective owner or mortgagee of the Building or land upon which such Building
has been built, or any interest in either, a statement in writing (a) certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, stating the modifications and that the Lease is in full
force and effect as modified), (b) stating the dates to which the Rent and any
other charges hereunder have been paid by Tenant, (c) stating whether or not, to
the knowledge of such party, the other party is in default in the performance of
any covenant, agreement or condition contained in this Lease, and if so,
specifying each such default of which such
14
party may have knowledge, (d) stating that Tenant shall give notice to any
mortgagee prior to seeking to terminate the Lease by reason of any act or
omission of Landlord until such mortgagee has had reasonable time, at its
option, to remedy such act or omission, and (e) stating the address to which
notices to Tenant, or Landlord, as the case may be, should be sent. Any such
statement may be relied upon by any existing or prospective owner or mortgagee
of the Building or aforesaid land or any interest in either or any assignee of
any such person.
29. NOTICES. Any notice, demand, consent, approval request or other
communication or document to be provided hereunder to a party hereto, shall be
in writing and shall be deemed to have been provided after being sent by
certified or registered mail, return receipt requested, in the United States
mail or by personal delivery or commercial courier, against receipt. Any and all
notices or other communications to Landlord and Tenant shall be given as
follows:
Landlord: Louisville Commerce Realty Corporation
c/o X.X. Xxxxxx Investment Management, Inc.
000 Xxxxx Xxxxxx at 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Copy to: Louisville Commerce Realty Corporation
c/x Xxxxxxx Partners, LLC
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, President
Copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxx, Tarrant & Xxxxx
2700 Citizens Plaza
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tenant: Electronic Arts, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxx
Copy to: Electronic Arts, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: General Counsel
Copy to: Xxxxxxx XxXxxxxx Xxxxxxx, Esq.
Xxxxx, Xxxx & Xxxxxxx
000 X. Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Either party may hereafter designate a new address for notice
purposes, by giving notice as provided hereunder.
30. GENERAL.
(a) Complete Understanding. This Lease, including without
limitation all exhibits, represents the complete understanding between the
parties hereto as to the subject matter hereof, and supersedes all prior
negotiations, representations, warranties, statements or agreements, either
written or oral, between the parties hereto as to the same.
(b) Amendment. This Lease may be amended by and only by an
instrument executed and delivered by each party hereto.
(c) Applicable Law. This Lease shall be given effect and
construed by application of the laws of the Commonwealth of Kentucky.
(d) Time of Essence. Time shall be of the essence of this
Lease.
15
(e) Headings. The headings of the Paragraphs and subparagraphs
hereof are provided herein for and only for convenience or reference, and shall
not be considered in construing their contents.
(f) Exhibits. Each writing or plat referred to herein as being
attached hereto as an exhibit or otherwise designated herein as an exhibit
hereto is hereby made a part hereof.
(g) Severability. No determination by any court, governmental
body or otherwise that any provision of this Lease or any amendment hereof is
invalid or unenforceable in any instance shall affect the validity or
enforceability of (i) any other provision thereof, or (ii) such provision in any
circumstance not controlled by such determination. Each such provision shall be
valid and enforceable to the fullest extent allowed by, and shall be construed
wherever possible as being consistent with, applicable law.
(h) Definition of "Landlord". As used herein, the term
"Landlord" means the entity hereinabove named as such, and its successors and
assigns.
(i) Definition of "Tenant". As used herein, the term "Tenant"
means each person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations, liabilities, rights and privileges as it would have possessed had
it originally executed this Lease, that no such right or privilege shall inure
to the benefit of any assignee of Tenant, immediate or remote, unless the
assignment to such assignee is made in accordance with the provisions of
Paragraph 12. Whenever two or more persons constitute Tenant, all such persons
shall be jointly and severally liable for the performance of Tenant's
obligations hereunder.
(j) Successors. It is agreed that all rights, remedies and
liabilities herein given to or imposed upon either of the parties hereto, shall
extend to their respective heirs, executors, administrators, successors and
assigns.
(k) Warranty. Landlord warrants that it is the owner of the
Premises and has the full right and authority to make this Lease. Landlord
hereby releases the Premises to Tenant in accordance with the provision of this
Lease. Tenant hereby accepts this Lease.
(l) Force Majeure. In the event that Landlord or Tenant shall
be delayed, or hindered, or prevented from the performance of any act required
hereunder (except for the payment of monies), by reason of government
restrictions, scarcity of labor or materials, or for other reasons beyond its
reasonable control, the performance of such act shall be excused for the period
of delay and the period for the performance of any such act shall be extended
for a period equivalent to the period of such delay.
(m) Recordation. The parties agree to execute a short form of
this Lease, which may, at Landlord's sole option, be recorded among the land
records of the jurisdiction where the Premises are located. The expense thereof
shall be borne by Landlord.
(n) Tenant's Authority. Tenant hereby warrants and represents
that each individual executing this Lease on behalf of Tenant is duly authorized
to execute and deliver this Lease and that Tenant is a duly organized
corporation under the laws of Delaware, is qualified to do business in the
Commonwealth of Kentucky, and has the power and authority to enter into this
Lease, and that all action requisite to authorize Tenant to enter into this
Lease has been duly taken.
(o) Commission. Landlord and Tenant warrant that they have not
had any dealings with any realtor, broker or agent in connection with the
negotiation of this Lease, except for Capstone Realty, Inc. and CB Xxxxxxx Xxxxx
Xxxxxxxx ("Brokers") whose commission shall be paid for by Landlord pursuant to
the terms of a separate agreement between Landlord and the Brokers. Should any
claim for a commission be established by any other broker or agent, the parties
hereby expressly agree to hold one another harmless with respect thereto to the
extent that one or the other is shown to have been responsible for the creation
of such claim.
(p) No Representations By Landlord. Tenant acknowledges that
neither Landlord or any broker, agent or employee of Landlord has made any
representations or promises with respect to the Premises or the Building except
as herein expressly set forth, and no rights, privileges, assessments or
licenses are acquired by Tenant except as herein expressly provided.
(q) Authority of Landlord. Landlord hereby represents and
warrants that it is a corporation duly organized and in good standing under the
laws of the State of Delaware, that each individual or entity executing this
Lease on behalf of Landlord is authorized to do so, and that all action
necessary to authorize Landlord to enter into this Lease has been duly taken.
(r) Third-Party Consents. Landlord hereby represents and
warrants that (i) the execution and delivery of this Lease by Landlord, and the
performance of Landlord's obligations hereunder, do not conflict with or result
in any breach under the terms of Landlord's articles of incorporation or any
agreement to which Landlord is a party or by which Landlord or the Premises is
bound and (ii) all consents of any third parties, including without limitation
any ground lessor or mortgagee of the Premises,
16
required in connection with the execution and delivery of this Lease have been
obtained by Landlord, and Landlord shall furnish evidence of such consents.
(s) Litigation. The prevailing party shall recover all
reasonable attorney's fees and costs incurred by or on behalf of such prevailing
party if (i) either party institutes litigation for a breach of the terms and
conditions of this Lease, (ii) either party institutes litigation for possession
of the Premises, or (iii) either party is made party to litigation instituted by
a third party relating to Premises. Such attorney's fees and costs may be levied
against the party whose conduct necessitated the use of an attorney whether or
not litigation is prosecuted to judgement.
(t) Assignment by Landlord. Landlord may freely assign its
interest hereunder. The term "Landlord" as used herein shall be deemed to be
related only to a person or entity during the time of his or its ownership of
Landlord's interest in this Lease.
(u) Waiver of Jury Trial. LANDLORD AND TENANT WAIVE TRIAL BY
JURY IN ANY ACTION, CLAIM OR COUNTERCLAIM BROUGHT IN CONNECTION WITH
LANDLORD-TENANT RELATIONSHIP, TENANT'S USE OR OCCUPANCY OF THE PREMISES OR ANY
CLAIM OF INJURY OR DAMAGE. Tenant consents to service of process and any
pleading relating to any such action at the Premises; provided, however, that
nothing herein shall be construed as requiring such service at the Premises.
Landlord and Tenant waive any objection to the venue of any action filed in any
court situated in the jurisdiction in which the Building is located and waive
any right under the doctrine of forum non conveniens or otherwise to transfer
any such action filed in any such court to any other court.
(v) Modifications. In the event any lender to Landlord
requires, as a condition to financing, modifications to this Lease, then,
provided such modifications do not materially alter the approved working plans
and do not increase the Rent to be paid hereunder, or increase Tenant's
obligations or liabilities under this Lease or decrease the benefits accruing to
Tenant hereunder, Landlord shall submit to Tenant a written amendment with such
required modifications. Tenant shall have the right to approve such amendment,
which approval shall not be unreasonably withheld. If Tenant unreasonably fails
to execute and return the same within ten (10) business days after the amendment
has been submitted, then Landlord may elect to execute such amendment and may
bring an action for specific performance to require the same.
IN WITNESS WHEREOF, each party hereto has executed this Lease, or has
caused it to be executed on its behalf by its duly authorized representatives,
the day and year first above written.
ATTEST: LANDLORD: LOUISVILLE COMMERCE REALTY
CORPORATION
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. XxXxxxxxxx
----------------------- ---------------------------------------
Name: Xxxxx X. XxXxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
ATTEST: TENANT: ELECTRONIC ARTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------- ---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: V.P. Operations
------------------------------------
EXHIBIT A: Legal Description of Property and Depiction of Premises
EXHIBIT B: Description of Building Shell
EXHIBIT C: Rent Schedule
EXHIBIT D: Guaranty [Intentionally Deleted]
EXHIBIT E: Confidentiality Agreement
17
EXHIBIT A
DESCRIPTION OF PREMISES AND PROPERTY
BEING TRACT 3, as shown on the Minor Subdivision Plat attached to and made a
part of a Deed dated April 30, 1998, of record in Deed Book 7033, Page 702, in
the Office of the Clerk of Jefferson County, Kentucky, which Minor Subdivision
Plat was approved by the Louisville and Jefferson County Planning Commission on
April 24, 1998, Docket No. 98-123.
Said land being the same as:
BEGINNING at an iron pin at the intersection of the North line of a 70 foot
Public Utility, Sewer, Drainage and Private Access Easement named Interchange
Drive and the East line of a 70 foot Public Utility Sewer, Drainage and Private
Access Easement named Commerce Crossings Drive, as shown on a Minor Subdivision
Plat prepared by Birch, Xxxxxxxxx and Xxxx, Inc. and approved by the Louisville
and Jefferson County Planning Commission, Order Number 97-439; thence with said
East easement line, North 28 degrees 00 minutes 00 seconds East, 703.31 feet to
an iron pin; thence leaving said East easement line, South 62 degrees 00 minutes
00 seconds East, 400.00 feet to an iron pin; thence North 28 degrees 00 minutes
00 seconds East, 445.00 feet to an iron pin; thence South 15 degrees 33 minutes
59 seconds East, 396.51 feet to an iron pin; thence South 38 degrees 09 minutes
52 seconds East, 366.88 feet to an iron pin; thence South 56 degrees 02 minutes
37 seconds East, 164.00 feet to an iron pin; thence South 07 degrees 15 minutes
25 seconds West 244.80 feet to an iron pin; thence South 21 degrees 59 minutes
25 seconds East, 86.49 feet to an iron pin; thence South 47 degrees 43 minutes
00 seconds West, 511.26 feet to an iron pin; thence South 47 degrees 43 minutes
00 seconds West, 511.26 feet to an iron pin; thence with a curve to the left
having a radius of 635.00 feet and a chord of North 47 degrees 53 minutes 24
seconds West, 79.73 feet to an iron pin; thence continuing with said curve to
the left having a radius of 635.00 feet and a chord of North 56 degrees 44
minutes 40 seconds West, 116.32 feet to an iron pin; thence North 62 degrees 00
minutes 00 seconds West, 24.67 feet to the aforesaid North easement line of
Interchange Drive; thence continuing North 62 degrees 00 minutes 00 seconds
West, with said North easement line, 894.61 feet to an iron pin a total of
919.28 feet; thence with a curve to the right having a radius of 40.00 feet and
a chord of North 17 degrees 00 minutes 00 seconds West, 56.57 feet to the
beginning.
TOGETHER with non-exclusive easement rights as created and set out in a
Declaration of Covenants, Conditions and Restrictions, dated as of April 30,
1998, of record in Deed Book 7033, Page 714, in the Office of the Clerk of
Jefferson County, Kentucky.
TOGETHER with a non-exclusive access easement for "Commerce Crossings Drive" and
"Interchange Drive", as shown on the Minor Subdivision Plat of record in Deed
Book 7033, Page 702, in the Office aforesaid.
[See Exhibit A-1 for depiction of Premises]
EXHIBIT A-1
[MAP]
FLOOR PLAN
Commerce Crossings Distribution Center
Louisville, Kentucky
February 11, 1999
EXHIBIT B
DESCRIPTION OF BUILDING SHELL
The Landlord shall cause the Building Shell to be constructed in substantial
accordance with the construction drawings prepared by Xxxxxx & Xxxxxx, Inc.
("Landlord's Architect") dated January 30, 1998 for Commerce Crossings
Distribution Center as more fully described in the following:
INDEX OF DRAWINGS
X-1 Title
CIVIL
1 Cover Sheet
2 Topographic Mapping
3 Site Construction Plan
4 Layout & Utility Plan
5 Grading Plan
6 Drainage & Erosion Control Plan
7 Site Details
8 Article 12 Compliance
9 Landscape Details
STRUCTURAL
S1.1 Overall Foundation Plan
S1.2 Partial Foundation Plan
S1.3 Partial Foundation Plan
S2.1 Overall Roof Framing Plan
S2.2 Partial Roof Framing Plan
S2.3 Partial Roof Framing Plan
S3.1 Foundation Details
S4.1 Framing Details
S5.1 Panels Elevation
S5.2 Panels Elevation
S5.3 Panels Elevation
S5.4 Panels Elevation
S5.5 Panels Elevation
S5.6 Panels Elevation
S5.7 Panels Elevation
S5.8 Panels Elevation
S5.9 Panels Elevation
S5.10 Panels Elevation
S6.1 Specifications
ARCHITECTURAL
A1.1 Floor Plan
A1.2 Enlarged Floor Plans
A2.1 Elevations & Building Sections
A3.1 Wall Sections
A3.2 Wall Sections & Details
A3.3 Wall Sections & Details
AT.1 Tenant Prototype Plan
FIRE PROTECTION
FP-1 Floor Plan-Fire Protections
PLUMBING
X-0 Xxxxx Xxxx-Xxxxxxxx
X-0 Waste & Vent Riser
ELECTRICAL
E-1 Floor Plan-Electrical
E-2 One Line Diagram & Panel Schedules
EXHIBIT C
RENT SCHEDULE
COMMERCE DISTRIBUTION CENTER
Dates Annual Base Rent Monthly Base Rent
----- ---------------- -----------------
Commencement Date
through June 30, 1999 $324,000 $27,000
July 1, 1999 through
March 31, 2000 $648,000 $54,000
April 1, 2000 through
April 30, 2004 $925,000 $77,083.33
EXHIBIT E
CONFIDENTIALITY AGREEMENT
(OPERATING COSTS AND TAX AUDIT)
THIS CONFIDENTIALITY AGREEMENT (the "Agreement") is made and entered
into this ____ day of____________, 199___ by and between Louisville Commerce
Realty Corporation, a Delaware corporation ("Landlord"), Electronic Arts, Inc.,
a Delaware corporation ("Tenant") and ________________________ ("Contractor").
Preamble
Pursuant to the provisions of that certain Lease between Landlord and
Tenant, dated as of April ___, 1999, (the "Lease"), Tenant was provided with
certain limited rights to audit the annual Operating Costs and Tax (as those
terms are defined in the Lease). In this regard, Tenant has engaged the services
of Contractor to perform an audit of the Operating Costs and Tax for the ____
Calendar Year ( the "Audit"). In connection with the Audit, Tenant and
Contractor will be given access to various documents, files and other
information relating to the Operating Costs and Tax for their review and
inspection (the "Confidential Information"). The Confidential Information may
include economic, commercial, marketing and financial information that is
confidential and/or proprietary in nature. Therefore, Landlord has determined to
require Tenant and Contractor to execute and deliver this Agreement as a
condition of their review and inspection of the Confidential Information.
In consideration of being granted the opportunity to review and inspect
the Confidential Information, Tenant and Contractor agree as follows:
Agreement
Section 1. Purpose. Tenant and Contractor agree that their review and
inspection of the Confidential Information shall be solely to conduct an audit,
on Tenant's behalf and not as an agent, representative or broker of any
undisclosed party, to verify the accuracy of Operating Costs and Tax for the
_____ Calendar Year which Tenant paid under the Lease.
Section 2. Non-Disclosure and Use of Confidential Information.
(a) Tenant and Contractor agree that, except as set forth below, all
Confidential Information shall be used by Tenant and Contractor solely for the
purposes stated in Section 1 hereof. Tenant and Contractor further agree not to
disclose any of the Confidential Information without the prior written consent
of Landlord to any third party other than to their respective (i) employees,
officers, directors, and (ii) agents and representatives, including attorneys,
accountants and financial advisors (collectively, the "Representatives"), in
each case who (i) have a need to know the Confidential Information for the
limited purpose stated in Section 1 hereof, and (ii) have entered into an
agreement with Tenant and Contractor substantially in the form of this
Agreement.
(b) The term "Confidential Information" shall not include information
which: (a) is already known to Tenant or Contractor from non-Landlord sources
not known by Tenant or Contractor to be subject to any confidentiality
obligations to Landlord; (b) is or becomes generally available to the public
other than as a result of a disclosure by Tenant or Contractor or any of their
Representatives; or (c) is required to be disclosed by law or by regulatory or
judicial process.
(c) In the event Tenant or Contractor or any of their Representatives
fails in any respect to comply with its obligations under this Agreement, Tenant
and Contractor shall be liable to Landlord for breach of this Agreement. In
addition, in the event of any such failure, Landlord may, in its sole
discretion, refuse to allow Tenant the opportunity to perform an audit with
respect to any other Calendar Years.
(d) The rights, powers and remedies provided for in the preceding
subsection (c) shall be in addition to and do not preclude the exercise of any
other right, power or remedy available to Landlord under law or in equity. No
forbearance, failure or delay in exercising any such right, power or remedy
shall operate as a waiver thereof or preclude its further exercise.
Section 3. Review of Confidential Information. The Confidential
Information will be made available for review by appointment only, at a location
determined by Landlord, to Representatives of Tenant and/or Contractor whose
duties include the review and inspection of such information in other similar
transactions or evaluations for Tenant.
Section 4. Duplication. Tenant and Contractor agree to refrain from
making any reproductions, other than handwritten summaries or notes and
self-generated computer records, of any item of Confidential Information without
the prior written consent of Landlord.
Section 5. Limited Access. Tenant and Contractor shall inform each of
their Representatives that receives any of the Confidential Information of the
requirements of this Agreement and shall require each such Representative to
comply with such requirements.
Section 6. Tenant Contact. Tenant and Contractor agree not to
communicate with any other tenants in the Project known as Commerce Distribution
Center in connection with the Audit without the prior written consent of
Landlord.
Section 7. Entire Agreement. This Agreement represents the entire
agreement between Tenant, Contractor and Landlord relating to the treatment of
Confidential Information heretofore or hereafter reviewed or inspected by Tenant
or Contractor in connection with the Audit. This Agreement supersedes all other
agreements relating to such matters which have previously been executed by
Tenant and/or Contractor in favor of Landlord.
Section 8. Reliance by Landlord's Management Company. Landlord's
property management company and its employees shall be authorized to accept a
copy of this Agreement (as executed by Tenant and Contractor) as a basis for
allowing Tenant or Contractor to review and inspect the Confidential Information
in connection with the Audit.
IN WITNESS WHEREOF, a duly authorized representative for both Tenant
and Contractor have executed this Agreement as of the date set forth below.
TENANT: LANDLORD:
ELECTRONIC ARTS, INC., LOUISVILLE COMMERCE REALTY CORPORATION
a Delaware corporation a Delaware corporation
By:________________________________ By:___________________________________
Name:_____________________________ Name:_________________________________
Title:______________________________ Title:________________________________
Date of Execution:___________________ Date of Execution:____________________
CONTRACTOR:
________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Date of Execution:________________
