Exhibit 10.19
BASIC LEASE INFORMATION
LEASE DATE: October 14, 1997
TENANT AND ITS ADDRESS: Prior to the Term Commencement Date:
XXXXXX HEALTH PRODUCTS INC.
Real Estate Department
000 Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxxxxxxx
Fax No.: 000-000-0000
After the Term Commencement Date:
XXXXXX HEALTH PRODUCTS INC.
Real Estate Department
Fort Mill, South Carolina 29715
Attention: Xxx Xxxxxxxxxx
Fax No.: [To be supplied by Tenant]
WITH A COPY TO: XXXXXX HEALTH PRODUCTS INC.
Real Estate Department
000 X. 000xx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxx, Senior Vice President of
Operations
Fax No.: 000-000-0000
AND TO: Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx, LLP
00 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: 415/000-0000
LANDLORD AND ITS
ADDRESS: MIT UNSECURED, L.P.
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax No.: 415/000-0000
WITH A COPY TO: MIT UNSECURED, L.P.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: 214/000-0000
LAND: Approximately 27.101 acre tract of land in the Park in
York County, South Carolina, as more particularly
described in EXHIBIT A attached hereto and incorporated
herein, together with
Landlord's rights under the EASEMENTS (herein so
called) described on such EXHIBIT A
PROJECT: The Land, the Building and all other improvements, if
any, located on the Land including, without limitation,
all parking areas, driveways and sidewalks thereon
BUILDING: A building containing approximately 558,900 square feet
of space and all other improvements contained therein
PARK: Lakemont Business Park in York County, South Carolina
CORE USE: Manufacture and distribution of Consumer Goods;
unloading and loading of shipping containers for
Consumer Goods; warehousing of Consumer Goods; order
fulfillment for specific Consumer Goods
requirements/orders; preparation of Consumer Goods for
shipment; special labeling of Consumer Goods;
palletizing Consumer Goods for shipment; quality
control/inspection of incoming Consumer Goods; rework
of finished Consumer Goods; light manufacturing and
assembly operations for Consumer Goods; and maintenance
of support equipment and supporting office distribution
activities and parking therefor. Notwithstanding the
foregoing, the Core Use shall not in any event include
any activities or use (i) in violation of Governmental
Requirements, the Rules and Regulations, or the CCR's,
or (ii) which adversely affects the structure, building
systems or value of the Project
CONSUMER GOODS: Pharmaceuticals, dietary and nutritional supplements,
health and beauty aids, and cosmetics
PERMITTED USE: General warehouse, storage, packaging, distribution,
assembly and any Other Approved Use, and related office
uses and parking therefor (and including, in any event,
the Core Use). Notwithstanding the foregoing, the
Permitted Use shall not in any event include any
activities or use (i) in violation of Governmental
Requirements, the Rules and Regulations or the CCR's,
(ii) which adversely affects the structure, building
systems or value of the Project, or (iii) which
involves the use of any Hazardous Materials on the
Project, except the use and storage for Tenant's own
use of ordinary and customary materials reasonably
required to be used in the normal course of such
Permitted Use, so long as such use and storage is in
compliance with all Governmental Requirements and does
not expose the Project or any neighboring property to
any material risk of contamination or damage or expose
Landlord to any liability therefor.
OTHER APPROVED USE: With respect to any Tenant (and which shall not be
binding with respect to any successor, assignee or
subtenant of such Tenant),
any use approved in writing by Landlord (which approval
may be withheld by Landlord in its sole and absolute
discretion)
CCR'S: Declaration of Restrictions dated April 1, 1975, filed
of record in Deed Book 510, Page 54 of the records of
York County, South Carolina; as amended by the
Agreement dated July 13, 1977, filed of record in Deed
Book 552, Page 596 of the records of York County, South
Carolina, Amendment to and Restatement of Declaration
of Restrictive Covenants for Lakemont Business Park
dated July 31, 1990, filed of record in Deed Book 107,
Page 220 in the records of York County, South Carolina,
Supplemental Declarations to Restrictive Covenants for
Lakemont Business Park dated on or about the Term
Commencement Date, recorded with the Office of the
Clerk of Court or the Register of Deeds, as applicable,
for York County, South Carolina, and as such
Declaration may from time to time be further amended,
supplemented or restated
TERM COMMENCEMENT DATE: __________________________
INITIAL TERM: Fifteen (15) years
EXTENSION TERMS: Two (2) five (5) year options
RENT:
BASE RENT: Scheduled Base Rent PLUS Amortized Improvement
Repayment
SCHEDULED
BASE RENT: 142,520 per month, in months 1 through 60
$156,770 per month, in months 61 through 120
$172,450 per month, in months 121 through 180
AMORTIZED
IMPROVEMENT
REPAYMENT: $49,857 per month
SECURITY DEPOSIT: $192,377 Cash Security Deposit, PLUS
$1,154,262 Second Letter of Credit, PLUS
$4,825,000 First Letter of Credit, all as described in
ARTICLE 11
RIGHT OF FIRST OFFER: Article 17
EXPANSION RIGHTS: Article 18
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE Section 15-48-10 ET SEQ.,
AS AMENDED FROM TIME TO TIME.
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to
such information. In the event of any conflict between the Basic Lease
Information and the Lease, the latter shall control.
SCHEDULE OF DEFINED TERMS
Action - Section 3.4(f)
Adjacent Land - Section 18.1
Amortized Improvement Repayment - Basic Lease Information
Approved Sublease - Section 12.1
Bankruptcy Event - Section 16.6
Base Rent - Basic Lease Information
Brokers - Section 21.19
Building - Basic Lease Information
Capital Costs - Section 5.1(h)
Cash Security Deposit - Article 11
CCR's - Basic Lease Information
Code - Section 12.6
Consumer Goods - Basic Lease Information
County - Section 20.1
Crescent - Article 1
Debtor - Section 16.6(a)
Demolition Memo - Section 8.1(b)
Easements - Basic Lease Information
Environmental Laws - Section 3.4(b)
Environmental Requirements - Section 3.4(e)
Environmental Taxes - Section 3.4(j)
Event of Default - Section 16.1
Expansion Amendment - Section 18.4
Expansion Lease - Section 18.4
Expansion Option Period - Section 18.1
Expansion Project - Section 18.1
Expansion Proposal - Section 18.2
Expansion Right - Section 18.1
Extension Terms - Basic Lease Information
FDA - Section 3.4(i)(ii)
FDA Requirements - Section 3.4(i)(ii)
Fee-in-Lieu Transaction - Article 20
First Letter of Credit - Section 11.1(b)
Governmental Authorities - Section 3.4(a)
Governmental Requirements - Section 3.3
Hazardous Materials - Section 3.4(a)
Hazardous Materials Report - Section 3.4(e)
Hazardous Use - Section 3.4(e)
Initial Base Rent - Section 18.4(a)
Initial Term - Basic Lease Information
Land - Basic Lease Information
Landlord - Introduction and Basic Lease Information
Landlord Acceptance - Section 18.3
Landlord Decision Notice - Article 18
Landlord Encumbrance - Article 17
Landlord Indemnified Parties - Section 3.6
Landlord Rejection - Section 18.3
Lease - Introduction
Lease Date - Basic Lease Information
Letters of Credit - Article 11
Losses - Section 3.6
Material Adverse Change - Section 11.5
Material Default - Section 2.1(b)
Material Event of Default - Section 2.1(b)
Material Potential Default - Section 2.1(b)
Non-Significant Alterations - Section 8.1
Offer Right - Article 17
Option - Section 18.1
Option Agreement - Section 18.1
Other Approved Use - Basic Lease Information
Park - Basic Lease Information
Permitted Use - Basic Lease Information
Potential Default - Section 2.1(b)
Project - Basic Lease Information
Reimbursable Costs - Section 16.2(b)(ii)
Release - Section 3.4(d)
Removal Payment - Section 8.1(b)
Rent - Basic Lease Information
Report - Section 3.4(f)
Rules and Regulations - Section 3.1
Scheduled Base Rent - Basic Lease Information
Second Letter of Credit - Section 11.1(c)
Secured Agreements - Section 11.1
Security Deposit - Basic Lease Information
Selling Notice - Article 17
Stepped Base Rent - Section 18.4(a)
Subject Alterations - Section 8.1(b)
Taxes - Section 5.5
Tenant - Introduction and Basic Lease Information
Tenant Decision Notice - Section 18.3(a)
Tenant Expansion Notice - Section 18.2
Tenant Offer Notice - Article 17
Tenant's Parties - Section 3.4(f)
Tenant's Renewal Notice - Section 2.1(b)
Ten-Year Mortgage Money Rate - Section 18.4(a)
Term - Section 2.1(d)
Term Commencement Date - Basic Lease Information
Total Expansion Costs - Section 18.4(a)
TABLE OF CONTENTS
PAGE
ARTICLE 1: PROJECT..........................................................1
ARTICLE 2: TERM, POSSESSION AND LEASE COMMENCEMENT..........................1
2.1 Term Commencement Date..............................................1
(a) Initial Term...................................................1
(b) Extension Option...............................................1
(c) Determination of Fair Market Rental............................2
(d) Term...........................................................3
2.2 Acceptance of the Project...........................................3
ARTICLE 3: USE..............................................................3
3.1 Permitted Use.......................................................3
3.2 Objectionable Actions...............................................3
3.3 Compliance with Law.................................................4
3.4 Hazardous Materials.................................................4
(a) Hazardous Materials Defined....................................4
(b) Environmental Laws Defined.....................................4
(c) Environmental Requirements Defined.............................5
(d) Release Defined................................................5
(e) Hazardous Materials Reports....................................5
(f) Use of Hazardous Materials.....................................5
(g) Hazardous Materials Report; When Required......................6
(h) Hazardous Materials Report; Contents...........................6
(i) Release of Hazardous Materials: Notification and Cleanup......7
(j) Inspection and Testing by Landlord.............................8
(k) Environmental Taxes............................................8
3.5 Compliance with Rules...............................................8
3.6 Indemnity Regarding Specified Issues................................8
ARTICLE 4: RENT.............................................................9
4.1 Payment.............................................................9
4.2 Late Payments.......................................................9
(a) Quarterly Payments in Advance..................................9
(b) Late Charge....................................................9
4.3 Amortized Improvement Repayment....................................10
4.4 Adjustment of Base Rent............................................10
ARTICLE 5: PAYMENT OF COSTS AND EXPENSES....................................10
5.1 Payment of Taxes...................................................10
5.2 [Intentionally Deleted]............................................10
5.3 [Intentionally Deleted]............................................10
5.4 [Intentionally Deleted]............................................10
5.5 Direct Payment of Taxes............................................11
5.6 Direct Payment of Other Costs......................................11
5.7 Net Lease..........................................................11
i
5.8 [Intentionally Deleted]............................................11
5.9 [Intentionally Deleted]............................................11
5.10 Tenant's Personal Property Taxes...................................11
ARTICLE 6: INSURANCE AND INDEMNIFICATION...................................12
6.1 Property Insurance.................................................12
6.2 Liability and Special Form Insurance...............................12
6.3 Indemnification....................................................13
6.4 Waiver of Subrogation..............................................13
ARTICLE 7: REPAIRS, SERVICES & MAINTENANCE.................................14
7.1 Tenant's Obligations...............................................14
7.2 Landlord's Option..................................................15
7.3 Government Assistance..............................................15
7.4 Utilities..........................................................15
7.5 Liens..............................................................16
ARTICLE 8: ALTERATIONS AND SIGNS...........................................16
8.1 Alterations........................................................16
(a) Performance...................................................17
(b) Removal.......................................................17
(c) Costs.........................................................18
(d) Plans.........................................................18
8.2 Signs..............................................................18
ARTICLE 9: INSPECTION AND NOTICES..........................................18
9.1 Inspection.........................................................18
ARTICLE 10: LENDER AND FINANCING PROVISIONS................................19
10.1 Subordination......................................................19
10.2 Financial Statements...............................................19
10.3 Estoppel Certificates..............................................19
ARTICLE 11: SECURITY DEPOSIT...............................................20
11.1 Deposit of Cash and Letters of Credit..............................20
11.2 Special Provisions Regarding Letters of Credit.....................20
11.3 Rights Upon Default................................................21
11.4 Reduction of First Letter of Credit................................21
11.5 Return of Second Letter of Credit..................................21
11.6 Obligation to Maintain the First Letter of Credit..................22
ARTICLE 12: ASSIGNMENT AND SUBLETTING......................................22
12.1 Consent Required...................................................22
12.2 Bonus Rent.........................................................23
12.3 Market Rent........................................................23
12.4 Other Transfers....................................................23
12.5 No Release.........................................................24
12.6 Effect of Assignment or Sublease...................................24
ARTICLE 13: CONDEMNATION...................................................24
ii
13.1 Substantial Taking.................................................24
13.2 Partial Taking.....................................................24
13.3 Award..............................................................24
13.4 Payment of Amortized Improvement Repayment.........................24
ARTICLE 14: CASUALTY DAMAGE................................................25
14.1 Casualty...........................................................25
14.2 Minor Damage.......................................................25
14.3 Partial Damage.....................................................26
14.4 Major Damage.......................................................26
14.5 Lender Requirements................................................26
14.6 Uninsured Loss.....................................................26
14.7 End of Term........................................................26
14.8 Amortized Improvement Repayment....................................27
14.9 Repair Costs.......................................................27
14.10 Tenant's Option to Avoid Termination..............................27
ARTICLE 15: HOLDING OVER...................................................27
ARTICLE 16: DEFAULT........................................................28
16.1 Events of Default..................................................28
(a) Abandonment...................................................28
(b) Nonpayment of Rent............................................29
(c) Other Obligations.............................................29
(d) General Assignment............................................29
(e) Receivership..................................................29
(f) Attachment....................................................29
(g) Letters of Credit - Issuer....................................29
(h) Letter of Credit..............................................29
16.2 Rights and Remedies Upon Default...................................29
(a) Remedies Upon Default.........................................29
(b) Tenant Payments...............................................30
(c) Payments......................................................30
(d) Measure of Certain Damages....................................31
(e) Payment of Amortized Improvement Repayment....................31
(f) No Election of Remedies.......................................31
(g) Lien For Rent.................................................31
16.3 [Intentionally Deleted]............................................32
16.4 Interest...........................................................32
16.5 Remedies Cumulative................................................32
16.6 Bankruptcy.........................................................32
16.7 Sublessees of Tenant...............................................33
16.8 Waiver of Default..................................................33
ARTICLE 17: RIGHT OF FIRST OFFER...........................................33
ARTICLE 18: EXPANSION......................................................34
18.1 Tenant's Expansion Right...........................................34
18.2 Exercise of Tenant's Expansion Right...............................34
18.3 Landlord's Response to Tenant Expansion Notice.....................35
iii
18.4 Expansion Amendment................................................35
18.5 Sale to Tenant.....................................................36
18.6 Tenant's Additional Rights With Respect to the Adjacent Land.......37
18.7 Indemnity..........................................................37
18.8 Assignment by Tenant...............................................37
ARTICLE 19: TRANSFERS BY LANDLORD..........................................37
ARTICLE 20: FEE-IN-LIEU TRANSACTION........................................38
20.1 Fee-In-Lieu Transaction............................................38
20.2 Conditions of Conveyance to County.................................38
20.3 Indemnity for Fee-In-Lieu Transactions.............................39
20.4 Landlord's Right to Repurchase.....................................39
ARTICLE 21: MISCELLANEOUS..................................................39
21.1 Limitation.........................................................39
21.2 Quiet Enjoyment....................................................39
21.3 Waiver.............................................................40
21.4 Notices............................................................40
21.5 Attorneys' Fees....................................................40
21.6 Successors and Assigns.............................................40
21.7 Force Majeure......................................................41
21.8 Reference..........................................................41
21.9 Time of the Essence................................................41
21.10 Governing Law.....................................................41
21.11 Integration.......................................................41
21.12 Modifications.....................................................41
21.13 Severability......................................................41
21.14 Counterparts......................................................41
21.15 Waiver of Certain Damages.........................................41
21.16 Days..............................................................41
21.17 Lease Effective Date..............................................41
21.18 Memorandum of Lease...............................................41
21.19 Captions..........................................................42
21.20 Joint and Several.................................................42
21.21 Submission of Lease...............................................42
21.22 Brokers...........................................................42
21.23 Confidentiality...................................................42
21.24 Alternate Dispute Regulation......................................42
iv
EXHIBITS: A - Legal Description of the Land
B - General Outline of the Building and Project
C - Legal Description of the Adjacent Land
D - Rules and Regulations
E - Form of Tenant's Estoppel Certificate
F - Form of Memorandum of Lease
G - [Intentionally Deleted]
H - Special Improvements Amortization Schedule
I - Non-Office Mezzanines
v
NET LEASE
THIS NET LEASE (this "LEASE") is made as of October 14, 1997, by and
between MIT UNSECURED, L.P., a California limited partnership, a Maryland
corporation ("LANDLORD") and XXXXXX HEALTH PRODUCTS INC., a Delaware corporation
("TENANT").
ARTICLE 1: PROJECT
-------------------
Landlord leases to Tenant and Tenant leases from Landlord, upon the terms
and conditions hereafter set forth, the Project. The approximate size and
location of the Building and Project are highlighted on EXHIBIT B (subject,
however, to the expansion rights described in ARTICLE 18 hereof). Landlord
hereby assigns to Tenant, without recourse, representation or warranty, but only
to the extent assignable, for the Lease Term and on a non-exclusive basis with
Landlord, all warranties and guaranties acquired by Landlord from Crescent
Resources, Inc. ("CRESCENT") in connection with Landlord's acquisition of the
Project, for repair of the Project during the Lease Term, and all rights of
Landlord under the CCR's to use the driveways, roads, parking areas and other
common facilities furnished for the common use of all other owners and tenants
within the Park.
ARTICLE 2: TERM, POSSESSION AND LEASE COMMENCEMENT
---------------------------------------------------
2.1 TERM COMMENCEMENT DATE.
(a) INITIAL TERM. The Initial Term of this Lease shall commence on
the Term Commencement Date and continue in full force and effect for the
number of months specified as the Initial Term in the Basic Lease Information
or until this Lease is terminated as otherwise provided herein. If the Term
Commencement Date is a date other than the first day of a calendar month, the
Term shall be the number of months of the Initial Term in addition to the
remainder of the calendar month following the Term Commencement Date and the
first month shall include the remainder of the calendar month in which the
Commencement Date occurs plus the first full calendar month thereafter.
(b) EXTENSION OPTIONS. So long as (i) this Lease is in full force
and effect, (ii) no Material Event of Default has occurred hereunder and
remains uncured, and (iii) Tenant has not assigned any of its rights hereunder,
Tenant shall have the right and option to extend the Initial Term of this Lease
for the Extension Terms. Each such extension of the Initial Term shall be on
the same terms, covenants and conditions as provided for in this Lease for the
Initial Term, except that the Scheduled Base Rent during each Extension Term
shall be at the Fair Market Rental then in effect, and Tenant shall pay no
Amortized Improvement Repayment for any Extension Term. Notice of Tenant's
intention to exercise this option must be given to Landlord in writing not less
than fifteen (15) months prior to the expiration of the Initial Term or the
immediately preceding Extension Term, as applicable, of this Lease, and shall
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE Section 15-48-10 ET SEQ.,
AS AMENDED FROM TIME TO TIME.
include Xxxxxx's determination of Fair Market Rental as of such date (such
Tenant notice to be referred to herein as "TENANT'S RENEWAL NOTICE"). Once
given with respect to any Extension Term, Tenant's Renewal Notice shall be
irrevocable and binding on Tenant, except that Fair Market Rental shall be
determined as provided herein. In the event the Tenant fails to deliver
Xxxxxx's Renewal Notice within
the time period set forth above, Xxxxxx's right to so extend the Term hereof for
such Extension Term and each succeeding Extension Term shall expire and be of no
further force and effect.
For purposes of this Lease, (i) the term "MATERIAL EVENT OF DEFAULT" means any
Event of Default which involves the nonpayment of money or which, in Landlord's
reasonable judgment, threatens or impairs the safety, security, structural
integrity, operating systems or value of the Building, (ii) the term "MATERIAL
POTENTIAL DEFAULT" means any Potential Default which involves the nonpayment of
money or which, in Landlord's reasonable judgment, threatens or impairs the
safety, security, structural integrity, operating systems or value of the
Operating Project, (iii) "MATERIAL DEFAULT" means any Material Event of Default
or Material Potential Default, and (iv) "POTENTIAL DEFAULT" means an event with
respect to which a cure period under SECTION 16.1 has commenced and such event
remains uncured.
(c) DETERMINATION OF FAIR MARKET RENTAL. For purposes hereof, the
term "FAIR MARKET RENTAL" means, for any Extension Term, the rental then in
effect for comparable space (which shall mean industrial buildings comparable in
size, age and quality of construction in the "Charlotte-Rock Hill Metropolitan
Statistical Area") between arm's length parties and without contribution by
Landlord for additional alterations or finishout. Within ten (10) business days
following Xxxxxxxx's receipt of Tenant's Renewal Notice, Landlord shall notify
Tenant of its agreement or disagreement with Tenant's determination of the Fair
Market Rental as set forth in Tenant's Renewal Notice. If Landlord disagrees
with Xxxxxx's determination of Fair Market Rental, Landlord and Tenant shall
negotiate in good faith to resolve the dispute prior to the date which is
fourteen (14) months prior to the expiration of the then existing Initial Term
or Extension Term, as applicable. If Landlord and Tenant are unable to resolve
the dispute by the date which is fourteen (14) months prior to the end of the
then-current Initial Term or Extension Term, as applicable, Landlord and Tenant
shall submit the determination of Fair Market Rental to arbitration, and
Landlord and Tenant shall each appoint one (1) arbitrator who shall be an MAI
appraiser who shall have been active over the three (3) year period ending on
the date of such appointment in the leasing of industrial properties in the
"Charlotte-Rock Hill Metropolitan Statistical Area" (a "QUALIFIED APPRAISER"),
and such Qualified Appraisers shall appoint a third MAI appraiser meeting the
foregoing criteria (the "THIRD APPRAISER"). If either Landlord or Tenant fails
to appoint its Qualified Appraiser by such date, the other party hereto shall be
authorized to appoint the Qualified Appraiser for such party. Each of the two
(2) Qualified Appraisers shall separately determine whether Landlord's or
Tenant's submitted Fair Market Rental is the closest to such appraiser's
judgment as to the actual Fair Market Rental consistent with the requirements of
this SECTION 2.1(c) on or before the date thirteen (13) months prior to the
expiration of the then current Initial Term or Renewal Term, as applicable. If
the determination of the Qualified Appraisers is the same, such determination
shall, subject to the last sentence of this Section 2.1(c), constitute Fair
Market Rental under this Lease. If the determination of Fair Market Rental by
the two (2) Qualified Appraisers differs, the Third Appraiser shall choose
whether the Fair Market Rental submitted by Landlord or by Tenant is the proper
determination of Fair Market Rental, which determination shall, subject to the
last sentence of this SECTION 2.1(c), constitute Fair Market Rental under this
Lease. The cost of such determinations by the Qualified Appraisers and the
Third Appraiser shall be paid by the party whose submitted Fair Market Rental
was not selected. Notwithstanding the foregoing, Fair Market Rental for any
Extension Term shall not in any event be less than Scheduled Base Rent for the
immediately preceding Initial Term or Extension Term, as applicable.
(d) TERM. The "TERM" (herein so called) shall refer to the Initial
Term and, if all conditions thereto as set forth herein are timely satisfied,
each Extension Term, subject, however, to the rights of Landlord and Tenant
hereunder to terminate the Initial Term or any Extension Term as expressly
provided herein, and, following exercise of any such early termination right,
the Term of the Lease shall end on the date of such termination.
2
2.2 ACCEPTANCE OF THE PROJECT. Effective as of the Term Commencement
Date, Tenant acknowledges that it has inspected and accepts the Project in its
present condition as suitable for the purpose for which the Project is leased.
Xxxxxx agrees that the Project is in good and satisfactory condition as of the
Term Commencement Date. Tenant further acknowledges that no representations or
warranties as to the condition or repair of the Project, nor promises to alter,
remodel, or improve the Project have been made by Landlord except as and to the
extent provided in ARTICLE 18 hereof. This SECTION 2.2 shall not be construed
to impair any right or remedy of Tenant against Crescent pursuant to the
Build-to-Suit Purchase Agreement of even date with this Lease between Tenant and
Crescent.
ARTICLE 3: USE
---------------
3.1 PERMITTED USE. Tenant shall use the Project for the Permitted Use and
for no other use or purpose without the prior written consent of Landlord. The
use of the Project shall at all times comply with applicable Governmental
Requirements and the CCR's. Tenant and its employees, customers, visitors, and
licensees shall have the right to use the Project subject to the rules and
regulations attached hereto as EXHIBIT D (the "RULES AND REGULATIONS").
3.2 OBJECTIONABLE ACTIONS. Tenant shall not permit any odors, smoke,
dust, gas, substances, noise or vibrations to emanate from the Project in
violation of Governmental Requirements, Rules and Regulations or the CCR's, nor
take any action which would constitute a nuisance or would disturb, obstruct or
endanger any owner, tenant, invitee or licensee of any adjacent property or
unreasonably interfere with their use of their respective premises. Tenant
shall not use or allow the Project to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause or maintain or permit
any nuisance in, on or about the Project. Tenant shall not commit or suffer the
commission of any waste in, on or about the Project. Tenant shall not allow as a
regular or frequent business activity at the Project any sale by auction, or
place any loads upon the floors, walls or ceilings which endanger the structure,
or place any harmful liquids in the drainage system of, the Building or Project,
except in accordance with Governmental Requirements, the Rules and Regulations
and the CCR's. No waste, materials or refuse shall be dumped upon or permitted
to remain on the Project except in trash containers placed inside or outside the
Building designed for that purpose and with prompt pickup of waste, materials
and refuse and disposal off-site, all in accordance with Governmental
Requirements, the Rules and Regulations and the CCR's. Tenant shall not do or
permit anything to be done in, on or about the Project or bring or keep anything
which will in any way cause a cancellation of the insurance upon the Building or
Project or otherwise materially adversely affect said insurance upon the
Building or Project in any manner (but excluding any increase in insurance
premiums so long as such increase is paid by Tenant).
3.3 COMPLIANCE WITH LAW. Tenant, shall, at no cost or expense to
Landlord, cause Tenant's use (and the use of any assignee or subtenant
hereunder) to comply in all material respects with all local, state and federal
statutes, laws, rules, regulations, ordinances, mandates and requirements now in
force, or which may hereafter be in force, whether foreseeable or unforeseeable,
pertaining to the occupancy or use of the Project (collectively, the
"GOVERNMENTAL REQUIREMENTS"), and shall faithfully observe in the use or
occupancy of the Project all Governmental Requirements including, without
limitation, the Environmental Laws (as hereinafter defined), and the Americans
with Disabilities Act, 42 U.S.C. Sections 12101-12213 (and any rules,
regulations, restrictions, guidelines or requirements now or hereafter
promulgated or published pursuant thereto), whether or not any of the foregoing
were foreseeable or unforeseeable at the time of the execution of this Lease.
Tenant's obligation to comply with and observe the Governmental Requirements
shall apply regardless of whether such Governmental Requirements regulate or
relate to Tenant's particular use of the Project or regulate or relate to the
use of premises in general, and regardless of the cost thereof. The judgment of
any court of competent jurisdiction, or the admission of Tenant in any action or
proceeding against Tenant, whether Landlord be a party thereto or
3
not, that any such Governmental Requirement pertaining to the Project has been
violated, shall be conclusive of that fact as between Landlord and Tenant.
3.4 HAZARDOUS MATERIALS.
(a) HAZARDOUS MATERIALS DEFINED. As used herein, the term "HAZARDOUS
MATERIALS" means any waste, material or substance (whether in the form of
liquids, solids or gases, and whether or not air-borne) (i) the presence or
Release of which requires reporting, investigation or remediation under any
Environmental Requirement, (ii) which is defined or listed as a "hazardous
waste", "hazardous substance", "extremely hazardous waste", "restricted
hazardous waste"' "hazardous material", "toxic substance", or other similar or
related term under any Environmental Law, (iii) which is toxic, radioactive, or
otherwise classified as hazardous or toxic and is or becomes regulated by any
governmental authority, the United States of America, or any subdivision of the
foregoing, or any agency, department, commission, board, authority or
instrumentality, bureau or court having jurisdiction over the Property or any
occupant or user of the Property (collectively, the "GOVERNMENTAL AUTHORITIES")
as a threat to human health or the environment, (iv) the presence of which on
the Project causes or threatens to cause a nuisance upon the Project or to
adjacent property, (v) the presence of which on adjacent properties could
constitute a trespass by Landlord or Tenant, (vi) which is asbestos, (vii) which
is polychlorinated biphenyls, or (viii) which contains petroleum or any
petroleum-derived product.
(b) ENVIRONMENTAL LAWS DEFINED. As used herein, the term
"ENVIRONMENTAL LAWS" means all statutes and ordinances of any Governmental
Authority and relating to the protection of human health and the environment,
whether now existing or hereafter adopted, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Section 9601, ET SEQ.), the Solid Waste Disposal Act, as
amended (42 U.S.C. Section 6901 ET SEQ.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Section 1801, ET SEQ.), the Clean Air Act, as amended
(42 U.S.C. Section 7401, ET SEQ.), the Federal Water Pollution Control Act, as
amended (33 U.S.C. Section 1251, ET SEQ.), the Toxic Substances Control Act, as
amended (15 U.S.C. Section 2601 ET SEQ.), the Safe Drinking Water Act, as
amended (42 U.S.C. Section 300f ET SEQ.), the Atomic Energy Act, as amended
(42 U.S.C. Section 2014 ET SEQ.), the Federal Insecticide, Fungicide and
Rodenticide Act, as amended (7 U.S.C. Section 136, ET SEQ.), the Oil Pollution
Act of 1990, as amended (33 U.S.C. Section 2701, ET SEQ.), the Emergency
Planning and Community Right-to-Know Act of 1986, as amended (42 U.S.C.
Section 11001, ET SEQ.), and the regulations adopted and publications
promulgated pursuant thereto, but excluding FDA Requirements.
(c) ENVIRONMENTAL REQUIREMENTS DEFINED. As used herein, the term
"ENVIRONMENTAL REQUIREMENTS" means all applicable present and future
Environmental Laws and all rules, regulations, orders, decrees, permits,
licenses, concessions, franchises, or other restrictions or requirements of any
Governmental Authority relating to protection of human health or the environment
and all applicable judicial, regulatory, or administrative decisions, decrees,
judgments, or orders thereunder, but excluding
FDA Requirements.
(d) RELEASE DEFINED. As used herein, the term "RELEASE" means any
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment (including the
abandonment or discarding of barrels, containers or other closed receptacles
containing any Hazardous Substance).
(e) [Intentionally Deleted]
4
(f) USE OF HAZARDOUS MATERIALS. Tenant agrees that during the Term
of this Lease, there shall be no ACTION (which, as used in this SECTION 3.4(f),
shall mean and refer to any use, disposal, storage, removal, treatment, import,
handling or processing of Hazardous Materials on, from or under the Building or
Project), and no generation, leakage, manufacture, Release or threatened Release
of Hazardous Materials on, from or under the Building or Project (individually
and collectively, "HAZARDOUS USE") by Tenant or any of its directors, officers,
members, managers, partners, employees, shareholders, invitees, guests, agents,
contractors, subtenants, assignees, licensees, vendors, customers or occupants
(collectively, "TENANT'S PARTIES"), except to the extent that, and in accordance
with such conditions as, Landlord may have previously approved in writing in its
sole and absolute discretion. It is further agreed that Tenant shall be
entitled to undertake an Action only with respect to those Hazardous Materials
which are (i) set forth in a list prepared by Tenant and approved in writing by
Landlord, (ii) necessary for Tenant's business, but then only in the amounts and
for the purposes previously disclosed in writing to and approved in writing by
Landlord, and (iii) in full compliance with Environmental Requirements, and all
judicial and administrative decisions pertaining thereto. Tenant shall not be
entitled to install any tanks under, on or about the Building or Project for the
storage of Hazardous Materials without the express written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Tenant shall be entitled to undertake an Action
with respect to any ordinary and customary materials reasonably required in the
normal course of the Permitted Use, so long as such Action is in compliance with
all Governmental Requirements and does not expose the Project or neighboring
property to any material risk of contamination or damage or expose Landlord to
any liability therefor. For the purposes of this SECTION 3.4(f), the term
"HAZARDOUS USE" shall include Hazardous Use(s) on, from or under the Building or
Project by Tenant or any of Tenant's Parties, whether known or unknown to
Tenant.
(g) HAZARDOUS MATERIALS REPORT; WHEN REQUIRED. Tenant shall submit to
Landlord a written report with respect to Hazardous Materials ("REPORT") in the
form prescribed in SUBSECTION (h) below on the following dates:
(i) At any time within fifteen (15) business days after
written request by Xxxxxxxx, which request shall not be made more frequently
than annually unless Landlord in good faith believes a violation of SECTION
3.4(f) has occurred since the date of the last report submitted under this
SECTION 3.4(g) or Landlord is required to deliver same to a third party in
connection with a sale or financing of the Project or a public offering with
respect to Landlord's equity securities, and
(ii) At any time when there has been a violation of any
Environmental Requirement, or in connection with any proposed request for
Xxxxxxxx's consent to any change in the list of materials previously approved in
writing by Landlord or for an increase in the intensity of usage or storage of
such previously approved materials.
(h) HAZARDOUS MATERIALS REPORT; CONTENTS. The Report shall contain,
without limitation, the following information (but in any event excluding any
requirement to report on normal vehicular traffic and normal equipment
lubrication):
(i) Whether on the date of the Report and (if applicable)
during the period since the last Report there has been any Hazardous Use on,
from or under the Project.
(ii) If there was such Hazardous Use, and to the extent such
information is available to Tenant, the exact identity of the Hazardous
Materials, the dates upon which such materials were brought upon the Project,
the dates upon which the Hazardous Materials were removed therefrom, and the
quantity, location, use and purpose thereof.
5
(iii) If there was such Hazardous Use, any governmental
permits maintained by Tenant with respect to such Hazardous Materials, the
issuing agency, original date of issue, renewal dates (if any) and expiration
date. Copies of any such permits and applications therefor shall be attached.
(iv) If there was such Hazardous Use, any governmental
reporting or inspection requirements with respect to such Hazardous Materials,
the governmental agency to which reports are made and/or which conducts
inspections, and the dates of all such reports and/or inspections (if
applicable) since the last Report. Copies of any such Reports shall be
attached.
(v) If there was such Hazardous Use, identification of any
operation or business plan prepared for any government agency with respect to
Hazardous Use.
(vi) Any liability insurance carried by Tenant with respect
to Hazardous Materials, the insurer, policy number, date of issue, coverage
amounts, and date of expiration. Copies of any such policies or certificates of
coverage shall be attached.
(vii) Any notices of violation of Environmental Requirements,
written or oral, received by Tenant from any governmental agency since the last
Report, the date, name of agency, and description of violation. Copies of any
such written notices shall be attached.
(viii) Any knowledge, information or communication which
Tenant has acquired or received relating to (1) any enforcement, cleanup,
removal or other governmental or regulatory action threatened or commenced
against Tenant or with respect to the Project pursuant to any Environmental
Requirements; (2) any claim made or threatened by any person or entity against
Tenant or the Project on account of any alleged loss or injury claimed to result
from any alleged Hazardous Use on or about the Project; or (3) any report,
notice or complaint made to or filed with any governmental agency concerning any
Hazardous Use on or about the Project. The Report shall be accompanied by
copies of any such claim, report, complaint, notice, warning or other
communication that is in the possession of or is available to Tenant.
(ix) Such other pertinent information or documents as are
reasonably requested by Landlord in writing.
(i) RELEASE OF HAZARDOUS MATERIALS: NOTIFICATION AND CLEANUP.
(i) At any time during the Term, if Xxxxxx knows or
believes that any Release of any Hazardous Materials has come or will come to be
located upon, about, beneath or from the Building or Project in violation of
SECTION 3.4(F) hereof, then Tenant shall immediately, either prior to the
Release or following the discovery thereof by Xxxxxx, give verbal and follow-up
written notice of that condition to Landlord.
(ii) At its sole cost and expense, Tenant covenants to
investigate, clean up and otherwise remediate any Release of Hazardous Materials
which were caused or created by Tenant or any of Tenant's Parties. Such
investigation, clean-up and remediation shall be performed only after Xxxxxx has
obtained Landlord's written consent, which may be exercised by Landlord in its
discretion; provided, however, that Tenant shall be entitled to respond
immediately to an emergency without first obtaining Landlord's written consent.
For purposes of this SUBSECTION 3.4(I)(II), the word "emergency" shall be deemed
to include any situation which applicable Governmental Requirements or the Food
and Drug Administration or any local or state governmental authority with
similar functions regarding rules and regulations applicable to Consumer Goods
(collectively, the "FDA") require be cleaned up immediately
6
and without delay for third party approvals. All clean-up and remediation shall
be done in strict compliance with Environmental Requirements, and all present
and future statutes, ordinances, rules, regulations, orders, decrees, permits,
licenses, concessions, franchises, restrictions and requirements of the FDA and
other state or local authorities with similar jurisdiction with respect to the
production, packaging and distribution of drugs or other consumer goods relating
to the Project or the activities thereon (collectively, "FDA REQUIREMENTS"), and
to the satisfaction of Landlord in its discretion.
(iii) Notwithstanding the foregoing, if Tenant fails to
perform its obligations under SECTION 3.4(I)(II) as required hereby and such
failure continues for ten (10) days following the date Landlord furnishes Tenant
written notice of such matters (or such longer period as may be required to cure
such matters so long as Tenant commences such cure within such ten (10) day
period and diligently prosecutes such cure to completion, unless such failure is
a failure to pay money (for which only the original ten (10) day cure period
shall apply), Landlord shall have the right, but not the obligation, in
Xxxxxxxx's discretion, exercisable by written notice to Tenant at any time, to
undertake within or outside the Project all or any portion of any investigation,
clean-up or remediation with respect to the release of Hazardous Materials
caused or created by Tenant or any of Tenant's Parties (or, once having
undertaken any of such work, to cease same, in which case Tenant shall perform
the work), all at Tenant's cost and expense, which shall be paid by Xxxxxx as
additional rent within ten (10) days after receipt of written request therefor
by Landlord (and which Landlord may require to be paid prior to commencement of
any work by Landlord). No such work by Landlord shall create any liability on
the part of Landlord to Tenant or any other party in connection with such
Hazardous Materials or constitute an admission by Landlord of any responsibility
with respect to such Hazardous Materials.
(iv) It is the express intention of the parties hereto that
Tenant shall be liable under this SECTION 3.4(I) for any and all conditions
covered hereby which were caused or created by Tenant or any of Tenant's
Parties. Tenant shall not enter into any settlement agreement, consent decree
or other compromise with respect to any claims relating to any Hazardous
Materials in any way connected to the Project without first (1) notifying
Landlord of Tenant's intention to do so and affording Landlord the opportunity
to participate in any such proceedings and (2) obtaining Xxxxxxxx's written
consent.
(j) INSPECTION AND TESTING BY LANDLORD. Landlord shall have the
right at all times during the Term of this Lease to (i) inspect the Project, as
well as Tenant's books and records, and to (ii) conduct tests and investigations
to determine whether Tenant is in compliance with the provisions of this
SECTION 3.4. Except in case of emergency, Landlord shall give reasonable notice
to Tenant before conducting any inspections, tests, or investigations. The cost
of all such inspections, tests and investigations shall be borne by Tenant, if
such inspections, tests or investigations disclose a violation of this SECTION
3.4. Neither any action nor inaction on the part of Landlord pursuant to this
SECTION 3.4(J) shall be deemed in any way to release Tenant from, or in any way
modify or alter, Tenant's responsibilities, obligations, and/or liabilities
incurred pursuant to SECTION 3.4 hereof.
(k) ENVIRONMENTAL TAXES. Tenant shall also pay prior to delinquency
all Environmental Taxes (hereinafter defined) and other taxes in connection with
any testing, investigation, abatement, Release, remediation, removal,
transportation and/or disposal of any Hazardous Materials by Tenant or any of
Tenant's Parties (or by Landlord, pursuant to any provision of this Lease
granting to Landlord the right to do any of the foregoing and to bill Tenant
therefor). For purposes of this SUBSECTION (K) only, the terms "ENVIRONMENTAL
TAXES" and "ENVIRONMENTAL TAXES" shall include, without limitation, any fees,
charges, fines, penalties and costs (including, without limitation, permit,
approval or licensing fees, charges or costs) imposed, charged or otherwise
assessed upon or as a result of such act or omission by Tenant or any of
Tenant's Parties.
7
3.5 COMPLIANCE WITH RULES. Tenant and Tenant's agents, employees, and
invitees shall faithfully observe and comply with the Rules and Regulations.
Landlord shall not be responsible to Tenant for the non-compliance by any person
or entity with any of such Rules and Regulations.
3.6 INDEMNITY REGARDING SPECIFIED ISSUES. Tenant shall indemnify, hold
harmless, and, at Landlord's option (with such attorneys as Landlord may approve
in advance and in writing), defend Landlord and Landlord's officers, directors,
trustees, members, managers, shareholders, partners, employees, contractors,
property managers, agents and mortgagees and other lien holders, and their
respective heirs, successors and assigns (collectively, the "LANDLORD
INDEMNIFIED PARTIES") from and against any and all Losses (hereinafter defined)
arising from or related to: (a) any violation or alleged violation by Tenant or
any of Tenant's Parties of any of the requirements, ordinances, statutes,
regulations or other laws referred to in this ARTICLE 3, including, without
limitation, the Environmental Requirements; (b) any breach of the provisions of
this ARTICLE 3 by Tenant or any of Tenant's Parties; or (c) any Hazardous Use
on, about or from the Building or Project by Tenant or any of Tenant's Parties,
whether or not approved by Landlord. The term "LOSSES" shall mean all costs and
expenses suffered or incurred in connection with or arising from claims,
demands, actions, judgments, damages (whether consequential, direct or indirect,
known or unknown, foreseen or unforeseen), penalties, fines, liabilities
(including strict liability), encumbrances, liens, actual losses of every kind
and nature (including, without limitation, property damage, diminution in value
of Landlord's interest in the Building or Project, damages for the loss or
restriction on use of any space or amenity within the Building or Project,
actual damages arising from any adverse impact on marketing space in the
Building or Project, sums paid in settlement of claims and any costs and
expenses associated with injury, illness or death to or of any person), suits,
administrative proceedings and fees, including, but not limited to, attorneys'
and consultants' fees and expenses, damages for personal injury or injury to
property or natural resources occurring upon or off the Project, and the costs
of cleanup, remediation, removal and restoration, that are in any way related to
any matter covered by the foregoing indemnity. Landlord shall not enter any
settlement agreement, consent decree or other compromise for which Landlord will
hold Tenant responsible for indemnification under this SECTION 3.6 without first
(x) notifying Tenant of Landlord's intention to do so and affording Tenant the
opportunity to participate in any such proceedings, and (y) obtaining Xxxxxx's
written consent thereto, which consent shall not be unreasonably withheld,
conditioned or delayed. Tenant's indemnification under this SECTION 3.6 shall
not be deemed to be a direct or indirect admission by Tenant of its culpability
with respect to any of the matters so indemnified. The provisions of this
SECTION 3.6 shall survive the expiration or termination of this Lease.
ARTICLE 4: RENT
----------------
4.1 PAYMENT. Tenant shall pay to Landlord, without demand throughout the
Term, Rent as specified in the Basic Lease Information, payable in monthly
installments in advance on or before the first day of each calendar month,
commencing upon the date one (1) month following the Term Commencement Date.
All payments of Rent and all other sums under this Lease shall be in lawful
money of the United States, without deduction, offset or recoupment whatsoever,
to Landlord at the address specified in the Basic Lease Information or to such
bank account and/or other firm or to such other place as Landlord may from time
to time designate in writing; provided, however, that following any change by
Landlord of the account, firm or place for payment, the next rental payment
shall be deemed to be timely paid if it is made to the requested account, firm
or place within fifteen (15) days after the date of such notification. Landlord
will provide to Tenant and maintain during the Lease Term wire transfer
instructions for payment of Rent under this Lease. Rent in the amount of
$192,377 for the second full month of the Term shall be paid by Tenant upon
Xxxxxx's execution of this Lease. If the Term Commencement Date is a date other
than the first day of a calendar month, the monthly Base Rent for
8
such partial month shall be prorated on a daily basis at the monthly rent
provided for the first calendar month.
4.2 LATE PAYMENTS.
(a) QUARTERLY PAYMENTS IN ADVANCE. Notwithstanding the provisions of
SECTION 4.1 to the contrary, if either (i) during any twelve (12) month period
Tenant fails on more than three (3) occasions to make any payment of monthly
Rent to Landlord on the date when it is due, or (ii) during any four (4) month
period Tenant fails on more than two (2) occasions to make any payment of
monthly Rent to Landlord on the date when it is due, then Landlord, in addition
to all other rights and remedies available to Landlord, may by giving written
notice to Tenant require that Tenant pay the monthly Rent to Landlord quarterly
in advance. Nothing contained herein shall be deemed or construed as a waiver
of Tenant's obligation to make all payments under this Lease as and when due.
If after notice from Landlord requiring same, Tenant pays Rent quarterly in
advance on or before the first (1st) day of each of six (6) successive quarterly
periods, and if as of the end of such period Tenant is rated by Standard and
Poor as "BBB-" or better, Tenant shall not be required to continue to make
payments quarterly in advance unless and until the requirements of SUBSECTIONS
4.2(A)(i) or (ii) are again met.
(b) LATE CHARGE. In addition to its other remedies, Landlord shall
have the right to add to the amount of any payment required to be made by Tenant
hereunder, and which is not paid on or before the date five (5) business days
following the date the same is due, an amount equal to three percent (3%) of the
delinquency for each month or portion thereof that the delinquency remains
outstanding to compensate Landlord for the loss of the use of the amount not
paid and the administrative costs caused by the delinquency, the parties
agreeing that Landlord's damage by virtue of such delinquencies would be
difficult to compute and the amount stated herein represents a reasonable
estimate thereof. The three percent (3%) late charge under this SECTION 4.2(b)
shall be due and payable by Tenant on or before the date thirty (30) days
following receipt by Tenant of an invoice with respect to such amount sent by or
on behalf of Landlord, which invoice shall be sent by Landlord within sixty (60)
days following the date such late payment was due or it shall be deemed waived.
4.3 AMORTIZED IMPROVEMENT REPAYMENT. The Amortized Improvement Repayment
represents repayment of the cost of $4,825,000 of special improvements made to
the Project at the special request of Tenant, which amounts are amortized over
the Initial Term, as a hypothetical fifteen (15) year fully amortizing loan, at
an annual interest rate equal to 9.5%. In the event that this Lease is
terminated, voluntarily or involuntarily, for any reason, or if an Event of
Default or Bankruptcy Event occurs, Tenant shall, upon demand, pay to Landlord
the aggregate unpaid Amortized Improvement Repayment as of the date of
termination (calculated in accordance with EXHIBIT H attached hereto, subject to
adjustments in accordance with SECTION 4.4 below), without deduction, offset or
recoupment whatsoever to Landlord at the address specified in the Basic Lease
Information or to such other firm or to such other place as Landlord may from
time-to-time designate in writing.
4.4 ADJUSTMENT OF BASE RENT. If Landlord's Purchase Price (as defined in
the Agreement Regarding Closing dated October 14, 1997, between Landlord, Tenant
and Crescent) is reduced below $21,577,160, as provided in such Agreement
Regarding Closing, Landlord and Tenant shall enter into an amendment to this
Lease to reduce the Base Rent hereunder as provided in this SECTION 4.4. If the
reduction in Purchase Price is attributable to the exterior walls, floor or roof
of, or structural steel for, the Building, the Scheduled Base Rent shall be
reduced by an annual amount equal to 10.21% of such reduction. If the reduction
in the purchase price is not attributable to the exterior walls, floor or roof
of, or structural steel for, the Building, the Amortized Improvement Repayment
shall be recalculated using a principal amount for the loan amount as described
in SECTION 4.3 equal to $4,825,000 less such reduction
9
in the purchase price. If the Scheduled Base Rent is reduced as provided in
this SECTION 4.4, the annual Scheduled Base Rent for months 61-120 shall be
reduced to an amount equal to 110% of the annual Scheduled Base Rent for months
1-60, and the annual Scheduled Base Rent for months 121-180 shall be reduced to
an amount equal to 110% of the annual Scheduled Base Rent for months 61-120.
ARTICLE 5: PAYMENT OF COSTS AND EXPENSES
----------------------------------------
5.1 PAYMENT OF TAXES. Tenant shall pay to Landlord on demand Taxes not
required to be paid directly by Tenant pursuant to SECTION 5.5 hereof.
5.2 [Intentionally Deleted]
5.3 [Intentionally Deleted]
5.4 [Intentionally Deleted]
5.5 DIRECT PAYMENT OF TAXES. For purposes hereof, the term "TAXES" means
all real estate taxes, possessory interest taxes, business or license taxes or
fees, gross rents taxes, payment in lieu of such taxes or fees, annual or
periodic license or use fees, excises, transit charges, housing fund
assessments, open space charge, assessments, levies, fees or charges, general
and special, ordinary and extraordinary, unforeseen as well as foreseen, of any
kind (including fees "in-lieu" of any such tax or assessment) which are
assessed, levied, charged, confirmed, or imposed by any public or governmental
authority or agency upon the Project, its operations or the rent (or any portion
or component thereof) and the costs to Landlord of contesting the amount,
validity, or applicability of any such taxes, except (i) inheritance or estate
taxes imposed upon or assessed against the Project, or any part thereof or
interest therein, and (ii) taxes computed on the basis of the net income of
Landlord or the owner of any interest therein. Tenant shall pay prior to
delinquency all Taxes assessed against the Project, and shall furnish to
Landlord evidence of timely payment not more than five (5) days after such
delinquency date. Refunds (including interest thereon) or adjustments to Taxes
for any year shall be applied to the year to which such refund or adjustment
relates. If Taxes for any period during the Lease Term are increased after
payment thereof for any reason, Tenant shall pay upon demand such increased
Taxes (which obligation shall survive termination of this Lease). With respect
to any assessment otherwise includable within Taxes that may be levied against
or upon the Project and which are evidenced by improvement or other bonds, or
may be paid in annual installments, there shall be included within the
definition of Taxes with respect to any year only the amount currently payable
on such bonds, including interest, for such year, or the current annual
installment for such year. Landlord shall promptly furnish to Tenant copies of
notices for Taxes which are payable directly by Tenant under this SECTION 5.5
and which notices are sent directly to and received by Landlord by the
applicable taxing authority. If Xxxxxxxx's delay in providing Tenant copies of
notices promptly following Xxxxxxxx's receipt of same as required by the
immediately preceding sentence prevents Tenant from timely paying such Taxes,
Landlord shall reimburse Tenant for any interest or penalties incurred and
arising from Xxxxxxxx's delay.
5.6 DIRECT PAYMENT OF OTHER COSTS. Tenant shall pay prior to delinquency
all fees, amounts, costs and expenses of every kind and nature incurred or
payable by Landlord under or pursuant to the CCR's, the Fee-in-Lieu Transaction,
the Easements or the Option Agreement, and shall furnish to Landlord evidence of
timely payment not more than five (5) days following the delinquency date for
such payments.
5.7 NET LEASE. This shall be a triple net Lease and Base Rent shall be
paid to Landlord absolutely net of all costs and expenses (including capital
expenditures, but subject to allocation as
10
provided in SECTION 7.1 hereof). This Lease is intended to pass on to Tenant
all costs and expenses (including capital expenditures, but subject to
allocation as provided in SECTION 7.1 hereof) in connection with the ownership
and operation of the Building or Project.
5.8 [Intentionally Deleted]
5.9 [Intentionally Deleted]
5.10 TENANT'S PERSONAL PROPERTY TAXES. Tenant shall pay prior to
delinquency all Taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Project or elsewhere. When possible, Tenant shall cause such trade
fixtures, furnishings, equipment and all other personal property to be assessed
and billed separately from the real property of Landlord. If any of Tenant's
personal property shall be assessed with Landlord's real property, or if any
other Taxes or taxes which are payable by Tenant pursuant to this Lease or
otherwise are assessed against Landlord with respect to this Lease or any
amounts paid hereunder or with respect to Landlord's interest in the Project,
Tenant shall pay the Taxes and other taxes attributable to Tenant prior to
delinquency and shall furnish to Landlord evidence of such timely payment not
more than five (5) days after such delinquency date; provided, however, that if
Governmental Requirements require that Landlord pay such amounts directly,
Tenant shall reimburse Landlord on demand for any such Taxes so paid.
ARTICLE 6: INSURANCE AND INDEMNIFICATION
-----------------------------------------
6.1 PROPERTY INSURANCE. Tenant agrees at all times during the continuance
of this Lease, at its own cost and expense, to insure the Building and all
improvements, betterments and equipment, against the perils included in the
"Special Causes of Loss Form" with the elimination of any exclusions for water
damage other than that caused by flood and which may, at Xxxxxx's option and
subject to the immediately succeeding two (2) sentences, include earthquake and
flood loss coverage. If Tenant elects to not include earthquake and/or flood
loss coverage in the insurance maintained by Tenant on the Project, and if
Landlord's lender requires such coverage, Tenant shall, at Tenant's cost and
expense, purchase such earthquake and/or flood loss coverage, except that if the
premium for such earthquake and flood loss coverage as mandated by Landlord's
lender exceeds five (5) cents per $100 of value insured, Tenant will not be
required to purchase such earthquake and/or flood loss coverage to the extent
the premium therefor exceeds five (5) cents per $100 of value insured, unless
Landlord reimburses Tenant for the amount the insurance premium is so increased
above five (5) cents per $100 of value insured. Additionally, if Tenant elects
not to carry earthquake and/or flood loss insurance with a deductible less than
five percent (5%), and Landlord's lender requires such coverage, Tenant will not
be required to carry such earthquake and/or flood loss insurance with a
deductible less than five percent (5%) unless Landlord reimburses Tenant for the
additional premium which will arise by so reducing the deductible. Coverage
shall be in the name of Xxxxxx, Landlord, and Xxxxxxxx's mortgagee(s), as their
respective interests may appear. Tenant may maintain this coverage under a
blanket policy insuring other operations of Tenant. Coverage shall be provided
in an amount equal to 100% of the replacement cost of the Building and
improvements and shall include an agreed amount endorsement. Tenant shall also
provide coverage for loss of rental income (including the amounts payable by
Tenant for Base Rent, Taxes and insurance premiums and pursuant to SECTIONS 5.1
and 5.6 hereof) for a twenty-four (24) month period following the date of loss.
Coverage for the loss of rental income may be included in Tenant's Loss of
Income Insurance coverage. All insurance shall be placed with insurers approved
to do business in the state where the Project is located and with insurers
having a Best's rating of A-VI or better. All insurance proceeds for losses
with respect to the Project shall be payable to Landlord's mortgagee if required
to be paid to such lienholder as provided in SECTION 14.5 hereof. In all other
cases, all insurance proceeds for losses with respect to the Project shall be
payable, at Landlord's election, either to Landlord mortgagee(s), to Landlord or
to an
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insurance trustee reasonably selected by Landlord and Tenant to maintain and
disburse such funds to assure completion of all restoration required hereunder
or permitted by SECTIONS 14.1 or 14.10 hereof, and otherwise as the interests of
the parties appear.
6.2 LIABILITY AND SPECIAL FORM INSURANCE. Tenant shall purchase at its
own expense and keep in force during this Lease a policy or policies of
commercial general liability insurance, including bodily injury, property damage
and personal injury, in the amount of not less than Two Million Dollars
($2,000,000.00) per occurrence and Five Million Dollars ($5,000,000) in the
annual aggregate. The aggregate limit shall apply separately to the Project.
Said policies shall (a) name Landlord and, if applicable, its agent, and any
other party holding an interest in the Project as may from time to time be
requested by Landlord, (b) be issued by an insurance company with a Best's
rating of A-VI or better, or which is otherwise approved in writing by Landlord,
(c) provide that said insurance shall not be canceled unless thirty (30) days
prior written notice shall have been given to Landlord, (d) provide coverage on
an occurrence basis; (e) provide coverage for the indemnity obligations of
Tenant under this Lease; (f) contain cross liability endorsement; and (g) shall
be primary, not contributing with, and not in excess of coverage which Landlord
may carry. In the event that Xxxxxx's General Liability Insurance policy is
written on a claims-made basis it shall be written to cover all claims incurred
during the term of this Lease or out of any work performed pursuant to the
Lease, regardless of when such claim shall be first made against Landlord and/or
Tenant. After the Term of this Lease is completed, Tenant shall maintain such
coverage for the length of any applicable statute of limitations period for the
purpose of protecting Tenant and Landlord. Tenant shall also purchase at its
own expense and keep in force during this Lease Special Causes of Loss Insurance
covering all industrial furniture, trade fixtures, industrial equipment,
machinery, merchandise, and all other items of Tenant's property on the Project.
Said policy or policies or certificates thereof shall be delivered to Landlord
by Tenant upon commencement of the Lease and at least thirty (30) days prior to
the expiration of said insurance.
6.3 INDEMNIFICATION. Landlord shall not be liable to Tenant for any loss
or damage to person or property caused by theft, fire, act of God, acts of a
public enemy, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority or for any damage or inconvenience which may
arise through repair or alteration of any part of the Building or Project or
failure to make any such repair or alteration. Tenant shall indemnify Landlord
and hold Landlord harmless from any and all loss, cost, damage, injury or
expense arising out of or related to (a) claims of injury to or death of persons
or damage to property (other than as may be governed by the provisions of
SECTION 3.6) occurring or resulting directly or indirectly from the use or
occupancy of the Project or from activities of Tenant or any of Tenant's Parties
or anyone in or about the Project or from any cause whatsoever with respect to
the Project, other than claims arising primarily from the gross negligence or
willful misconduct of Landlord, (b) claims for work or labor performed or for
materials or supplies furnished to or at the request of Tenant or in connection
with performance of any work done for the account of Tenant within the Project,
(c) claims arising from any breach or default on the part of Tenant in the
performance of any covenant contained in this Lease, and (d) any suit in which
Landlord is named as a defendant and which is brought by Tenant against any
other party or against Tenant in connection with or arising out of Tenant's
occupancy of the Project. Such indemnity shall include without limitation the
obligation to provide all costs of defense against any such claims including any
action or proceeding brought against Landlord, unless such actions are covered
by Tenant's insurance. The provisions of this SECTION 6.3 shall survive the
expiration or termination of this Lease with respect to any claims or liability
occurring prior to such expiration or termination.
6.4 WAIVER OF SUBROGATION. To the extent permitted by law and without
affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Xxxxxx each waive any right to recover against the other
(a) damages for injury to or death of persons, (b) damages to property,
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(c) damages to the Project or any part thereof, or (d) claims arising by reason
of the foregoing, to the extent such damages and claims are insured against or
required to be insured against by Landlord or Tenant under this Lease. This
provision is intended to waive fully, and for the benefit of each party, any
rights and/or claims which might give rise to a right of subrogation by any
insurance carrier. The coverage obtained by each party pursuant to this Lease
shall include, without limitation, a waiver of subrogation by the carrier which
conforms to the revisions of this paragraph.
ARTICLE 7: REPAIRS, SERVICES & MAINTENANCE
---------------------------------------=---
7.1 TENANT'S OBLIGATIONS. Tenant shall, at Tenant's expense, preserve and
maintain the Project at all times as a high quality, first class
office/industrial facility and in accordance with all Governmental Requirements
in existence from time-to-time, the Rules and Regulations and the CCR's. Tenant
shall, at Tenant's expense, maintain all parts of the Project in a good, clean
and secure condition promptly making all necessary repairs and replacements,
structural and nonstructural (whether or not such portion of the Project
requiring repairs or the means of repairing the same, are reasonably or readily
accessible to Tenant, and whether or not the need for such repairs occurs as a
result of Tenant's use, any prior use, the elements or the age of such portion
of the Project or by defects in the Project or changes in Governmental
Requirements or the CCR's occurring prior to or after the date hereof),
including without limiting the generality of the foregoing, all equipment or
facilities serving the Project, such as plumbing, heating, air conditioning,
ventilating, electrical, lighting facilities, boilers, fired or unfired pressure
vessels, fire sprinkler and/or standpipe and hose or other automatic fire
extinguishing system, including fire alarm and/or smoke detection systems and
equipment, fire hydrants, fixtures, walls (interior and exterior), foundations,
ceilings, roofs, floors, windows, doors, plate glass, skylights, landscaping,
driveways, parking lots, fences, retaining walls, signs, sidewalks and parkways
located in, on, about, or adjacent to the Project. Notwithstanding the
foregoing, if any change in any Governmental Requirement after the Term
Commencement Date applicable to the Project generally and unrelated to Tenant's
use or occupancy thereof requires any capital expenditure for the Project, the
cost of such capital expenditure shall be amortized over the useful life of such
capital expenditure (as reasonably determined by Landlord), and Landlord shall
pay the portion of such capital expenditure applicable to the portion of the
useful life, if any, which is not within the Initial Term or any Extension Term
(whether or not exercised). Tenant, in keeping the Project in good order,
condition and repair, shall exercise and perform good maintenance practices.
Tenant's obligations shall include restorations, replacements or renewals when
necessary to keep the Project and all improvements thereon or a part thereof in
good order, condition and state of repair. Tenant shall, during the term of
this Lease, keep the exterior appearance of the Building in a first class
condition consistent with the exterior appearance of other similar facilities
constructed on property affected by the CCR's, including, when necessary, the
exterior repainting of the Building. Tenant shall, at Tenant's sole cost and
expense, perform necessary pest extermination and regular removal of trash and
debris. Tenant shall, at Tenant's sole cost and expense, procure and maintain
contracts reasonably approved by Landlord and with contractors reasonably
approved by Landlord and specializing and experienced in, the inspection,
maintenance and service of the following equipment and improvements, if any,
located or to be located on the Project: (i) heating, air conditioning and
ventilation equipment, (ii) boiler, fired or unfired pressure vessels,
(iii) fire sprinkler and/or standpipe and hose or other automatic fire
extinguishing systems, including fire alarm and/or smoke detection,
(iv) landscaping and irrigation systems, (v) roof covering and drain maintenance
and (vi) asphalt and parking lot maintenance; provided, however, that Tenant
shall not be required to procure and maintain a contract with respect to the
maintenance requirements of subclauses (v) and (vi), if Tenant desires to be
directly responsible for such inspection, maintenance and service. Each such
service contract must include all services suggested by the equipment
manufacturer within the operation/maintenance manual (or providing for a scope
of services which is otherwise commercially reasonable) and must become
effective and a copy thereof delivered to Landlord within thirty (30) days of
the Term Commencement Date. Tenant shall not damage the roof, foundation
13
or any demising wall or disturb the integrity and support provided by the roof,
foundation or any demising wall and shall, at its sole expense, immediately
repair any damage to the roof, foundation or any demising wall. Upon
termination of this Lease, Tenant shall return the Project broom clean, and in
high quality, first class condition, ordinary wear and tear excepted and, at
Landlord's option, shall remove the Subject Alterations, all as provided in
SECTION 8.1(b) hereof. All such removals and restoration shall be accomplished
in a good and workmanlike manner so as not to cause any damage to the Project
whatsoever.
7.2 LANDLORD'S OPTION. If Tenant fails to perform its obligations under
this Lease to preserve and maintain the Project as required hereby and such
failure continues for ten (10) days following the date Landlord furnishes Tenant
written notice of such matters (or such longer period as may be required to cure
such matters so long as Tenant commences such cure within such ten (10)-day
period and diligently prosecutes such cure to completion, unless such failure is
a failure to pay money (for which only the original ten (10) day cure period
shall apply) or an emergency or otherwise involves a material risk to the
Project or health or safety (for which no cure period shall be required)),
Landlord may (without being liable for any damages, whether caused by the
negligence of Landlord or otherwise, except with respect to Landlord's gross
negligence or willful misconduct), but shall not be obligated to, pay such
unpaid amounts and/or perform such activities on behalf of Tenant, and any and
all costs and expenses (including capital expenditures) incurred by Landlord in
performing same shall be paid by Xxxxxx upon demand, together with interest
thereon from the date advanced at the rate of interest provided in SECTION 16.4
hereof.
7.3 GOVERNMENT ASSISTANCE. So long as (a) in Landlord's judgment, such
matters will not adversely affect Landlord or the Project, and (b) Tenant shall
have made provision for the payment of all costs, fees and expenses incurred or
to be incurred by Landlord in connection therewith (including, without
limitation, legal fees and expenses), Landlord shall cooperate with all
reasonable requests or attempts of Tenant to obtain any governmental,
quasi-governmental or utility company financial assistance, grants, credits,
rebates or other benefits which may be sought by Tenant in connection with
rehabilitation or improvement of the Project in connection with Xxxxxx's
occupancy of the Project or any other matter relating to Tenant's operation or
occupancy of the Premises. Landlord agrees that all such assistance, grants,
credits, rebates or like benefits related to Xxxxxx's occupancy of the Project,
the improvement or alteration of the Project for Tenant's occupancy or Tenant's
operations at the Project shall be the property of Tenant and shall inure to the
benefit of Tenant during the Lease Term; provided, however, that to the extent
any of such matters survive the Lease Term, Landlord shall have the option, but
not the obligation, to continue such benefits for the account of Landlord and
its successors and assigns. The provisions of this SECTION 7.3 shall not be
applicable with respect to any Fee-In-Lieu Transaction, which shall be governed
by ARTICLE 20 hereof. Tenant shall indemnify, hold harmless, and, at Landlord's
option (with such attorneys as Landlord may approve in advance and in writing),
defend the Landlord Indemnified Parties from and against any and all Losses
arising from or related to such financial assistance, grants, credits, rebates
or other benefits which may be sought by or on behalf of Xxxxxx. The provisions
of this indemnity and hold harmless shall survive the expiration or termination
of this Lease.
7.4 UTILITIES. Tenant shall pay for all water, gas, heat, air
conditioning, light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or from the Project, together with any taxes,
penalties, surcharges or the like pertaining thereto, and maintenance charges
for utilities, and shall furnish all electric light bulbs, ballasts and tubes.
Landlord shall not be liable for any damages directly or indirectly resulting
from nor shall the Rent or any monies owed Landlord under this Lease herein
reserved be abated by reason of (a) the installation, use or interruption of use
of any equipment used in connection with the furnishing of any of the foregoing
utilities and services, (b) failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by acts of God
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or the elements, labor disturbances of any character or any other accidents or
other conditions beyond the reasonable control of Landlord, or (c) the
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any other form of energy or any other service or utility whatsoever
serving the Project. Tenant shall use its commercially reasonable best efforts
to cooperate voluntarily and in a reasonable manner in the efforts of national,
state or local governmental agencies or utility suppliers in reducing energy or
other resource consumption.
7.5 LIENS. Tenant shall keep the Project free from liens arising out of
or related to work performed, materials or supplies furnished or obligations
incurred by Tenant or in connection with work made, suffered or done by Tenant
in or on the Project. In the event that Tenant shall not, within thirty (30)
days following the imposition of any such lien, cause the same to be released of
record by payment or posting of a proper bond, Landlord shall have, in addition
to all other remedies provided herein and by law, the right, but not the
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All sums paid
by Xxxxxxxx on behalf of Tenant and all expenses incurred by Landlord in
connection therewith shall be payable to Landlord by Tenant on demand with
interest at the maximum rate allowable by law. Landlord shall have the right at
all necessary times to post and keep posted on the Project any notices permitted
or required by law, or which Landlord shall deem proper, for the protection of
Landlord, the Project and any other party having an interest herein, from
mechanics' and materialmen's liens, and Tenant shall give Landlord not less than
ten (10) business days prior written notice of the commencement of any work in
the Project which could lawfully give rise to a claim for mechanics' or
materialmen's lien.
ARTICLE 8: ALTERATIONS AND SIGNS
---------------------------------
8.1 ALTERATIONS. Except for (a) furniture, trade fixtures and processing
equipment which are not located on or attached to the roof and do not involve
any impact on the structure or operating systems of the Project, and
(b) alterations (which are not located on or attached to the roof) with a cost
of less than $100,000 in any twelve (12)-month period, and which are not
structural or adversely affect the structure, operating systems or value of the
Building (any such furniture, trade fixtures, processing equipment and
alterations to be referred to herein as "NON-SIGNIFICANT ALTERATIONS"), Tenant
shall not make, or allow to be made, any alternations or physical additions in,
about or to the Project, without obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld with respect to
proposed alterations and additions which (i) comply with all Governmental
Requirements, (ii) are compatible with the Project and its mechanical, plumbing,
electrical, and heating/ventilation/air conditioning systems, and (iii) will not
adversely affect or impair the roof, foundations or exterior walls or other
structural components of the Building. Specifically, but without limiting the
generality of the foregoing, Landlord hereby consents to the expansion of the
mezzanines within the Building where the column footings are located on the
areas designated on the Approved Plans and Specifications for such column
footings, so long as such work of expansion of the mezzanine complies with
SUBCLAUSES (i), (ii) and (iii) of SECTION 8.1, above, and, in addition,
Landlord shall have the right of consent for all plans and specifications for
the proposed alterations or additions, construction means and methods, any
contractor to be employed on the work of alterations or additions other than
Non-Significant Alterations, and the time for performance of such work
(provided, however, that Landlord shall not unreasonably withhold its consent to
any of the foregoing). Tenant shall also supply to Landlord any documents and
information reasonably requested by Landlord in connection with its
consideration of a request for approval hereunder and Landlord shall notify
Tenant of Landlord's approval or disapproval within twenty (20) business days
following Xxxxxxxx's receipt of all requested documents and information, and
Xxxxxxxx's failure to respond prior to the expiration of such twenty (20)
business day period shall be deemed Landlord's consent to such matters. Tenant
must have Landlord's written approval (or deemed approval) and all appropriate
permits and licenses prior to the commencement of said alterations and
additions. Prior to commencement of
15
construction of any alterations, Tenant shall deliver a copy of all permits to
Landlord. Tenant shall in any event be required to reimburse Landlord on demand
for all reasonable costs and expenses incurred by Landlord in reviewing requests
for alterations and related documentation and information and in inspecting the
construction of same.
(a) PERFORMANCE. All alternations and additions permitted hereunder
shall be made and performed by Xxxxxx in a good and workmanlike manner without
cost or expense to Landlord including any reasonable costs or expenses which
Landlord may incur in electing to have an outside agency review said plans and
specifications.
(b) REMOVAL. Landlord shall have the right to require Tenant to
remove any or all non-office mezzanines shown on EXHIBIT I attached hereto, and
other alterations, additions, improvements and partitions (including additional
non-office mezzanines) made by or for Tenant during the Lease Term
(collectively, the "SUBJECT ALTERATIONS") and restore the Project to its
original condition (but with such non-office mezzanines removed and the floor
thereunder restored to a flat, rackable condition) by the termination of this
Lease, by lapse of time or otherwise, all at Xxxxxx's expense. All such removals
and restoration shall be accomplished in a good workmanlike manner so as not to
cause any damage to the Project whatsoever. If Landlord so elects, such
alternations, physical additions or improvements shall become the property of
Landlord and surrendered to Landlord upon the termination of this Lease by lapse
of time or otherwise; provided, however, that this clause shall not apply to
trade fixtures or furniture owned by Tenant. Tenant may, but shall not be
obligated to, request in writing that Landlord and Tenant conduct a walk through
of the Project approximately ten (10) months prior to the expiration of the
Lease Term. Upon receipt of such request, Landlord and Tenant shall agree upon
a mutually acceptable time and date for such walk through, and at such walk
through Landlord shall identify the Subject Alterations Landlord will require
that Tenant remove, and Landlord and Tenant shall agree on the schedule for and
cost of such removal, which matters shall be memorialized in a DEMOLITION MEMO
(herein so called). Tenant shall have the option to request a follow-up walk
through at approximately sixty (60) days prior to the expiration of the Lease
Term, and Landlord and Tenant shall update the Demolition Memo as Landlord and
Tenant mutually agree (although Landlord may make changes in the Subject
Alterations Landlord will require be removed or left in its sole discretion
without Tenant's approval). In addition, Tenant may request that in lieu of
removing the Subject Alterations requested by Landlord, and with Xxxxxxxx's
consent (which consent may be withheld in Landlord's sole and absolute
discretion), Tenant may pay to Landlord, in cash, on or prior to the expiration
or termination of the Lease Term, an amount determined by Landlord to be the
total cost of removing the requested Subject Alterations (the "REMOVAL
PAYMENT"). If prior to the date eighteen (18) months following the date Tenant
has paid the Removal Payment to Landlord, Landlord has re-leased the Project to
another tenant and incurred expenses in removing the Subject Alterations which
Landlord requested be removed in an amount less than the Removal Payment,
Landlord shall return to Tenant one-half (1/2) of the amount by which the
Removal Payment exceeds the aggregate expenses incurred by Landlord in removing
such Subject Alterations (but Landlord shall be entitled to offset against such
amounts to be returned to Tenant any amount due, owing and unpaid by Tenant to
Landlord under this Lease as of such date). In all other cases, Landlord shall
be entitled to retain the full Removal Payment.
(c) COSTS. Tenant shall be responsible for and shall pay prior to
delinquency any taxes or governmental service fees, possessory interest taxes,
fees or charges in lieu of any such taxes, capital levies, or other charges
imposed upon, levied with respect to or assessed against its personal property,
on the value of its alternations, additions or improvements and on its interest
pursuant to this Lease. To the extent that any such taxes are not separately
assessed or billed to Tenant, Tenant shall pay the amount thereof as invoiced to
Tenant by Landlord.
16
(d) PLANS. Tenant shall not make any change in the plans for any
alterations approved by Landlord without the prior written consent of Landlord.
Upon completion of such alterations, Tenant shall deliver to Landlord a copy of
the "field grade as-built" plans, building permits (with all inspection
approvals signed by the local governmental agency) and certificates of
occupancy.
8.2 SIGNS. Tenant may, at its sole cost and expense, install signage in,
on or about the Project (including, without limitation, interior identification
signage or monument signage) indicating Tenant as the occupant of the Building
and may install directional and informational signs, so long as such signage is
installed and maintained in accordance with Governmental Requirements, the Rules
and Regulations and the CCR's. Notwithstanding the foregoing, Tenant may not
install any signage on or attached to the roof, or which in any way adversely
affects the structure or value of the Building, or for any purpose other than
identifying Tenant's occupancy of the Building or for providing directional and
information signs without in each case the prior written consent of Landlord,
which consent may be withheld in Landlord's sole and absolute discretion, except
that Landlord shall not unreasonably withhold its consent to signage on or
attached to the roof. Tenant shall remove all such signs and graphics by the
termination of this Lease. Such installations and removals shall be made in such
manner as to avoid injury to or defacement of the Building or Project and any
other improvements contained therein, and Tenant shall repair any injury or
defacement including, without limitation, discoloration caused by such
installation or removal.
ARTICLE 9: INSPECTION AND NOTICES
----------------------------------
9.1 INSPECTION. After reasonable notice, except in emergencies where no
such notice shall be required, Landlord, its agents and representatives, shall
have the right to enter the Project to inspect the same, to perform such work as
may be permitted or required hereunder, to make repairs to the extent permitted
hereunder, to deal with emergencies, to post such notices as may be permitted or
required by law to prevent the perfection of liens against Landlord's interest
in the Project or to exhibit the Project to prospective purchasers, encumbrances
or others, or for any other purpose of inspection as Landlord may deem necessary
or desirable; provided, however, that Landlord shall not unreasonably interfere
with Tenant's business operations or security or knowingly enter upon the
Project in violation of FDA Requirements. Tenant shall not be entitled to any
abatement of Rent by reason of the exercise of any such right of entry.
Beginning one (1) year prior to the end of the Lease, Landlord shall have the
right to exhibit the Project to prospective tenants and to erect on the Building
and/or Project a suitable sign indicating that the Project is available for
lease. Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the Building or Project and shall meet with Landlord for a
joint inspection of the Project at the time of vacating. In the event of
Tenant's failure to give such notice or participate in such joint inspection,
Landlord's inspection at or after Xxxxxx's vacating the Building or Project
shall conclusively be deemed correct for purposes of determining Tenant's
responsibility for repairs and restoration.
ARTICLE 10: LENDER AND FINANCING PROVISIONS
--------------------------------------------
10.1 SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to (a) all ground leases or
underlying leases which may now exist or hereafter be executed affecting the
Land, Building, and Project, and (b) any mortgage or deed of trust which may now
exist or be placed upon the Land, Building, Project, land, ground leases, or
underlying leases, and Landlord's interest or estate in any of said items, which
is specified as security, but only if the holder of any such ground lease,
underlying lease, mortgage or deed of trust agrees in writing that, subject to
the terms and conditions of this Lease, such holder will respect Tenant's rights
and interests under this Lease. Notwithstanding the foregoing, Landlord or any
such holder shall have the right to subordinate or cause to be subordinated any
17
such ground leases or underlying leases or any such liens to this Lease. In the
event that any ground lease or underlying lease terminates for any reason or any
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant shall, notwithstanding any subordination, attorn
to and become the Tenant of the successor in interest to Landlord. Tenant shall
execute and deliver, upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the priority or subordination of
this Lease with respect to any such ground leases or underlying leases or any
such mortgage or deed of trust.
10.2 FINANCIAL STATEMENTS. At the request of Landlord, Tenant shall
provide to Landlord current financial statements for Tenant and other
information discussing the financial worth of Tenant which information Landlord
shall use solely for purposes of this Lease, in a manner consistent with SECTION
21.23 hereof, and in connection with the ownership, management and disposition
of the property subject hereto.
10.3 ESTOPPEL CERTIFICATES. Within ten (10) business days following a
request in writing by Landlord, Xxxxxx shall execute and deliver to Landlord an
estoppel certificate, which, as submitted by Landlord, shall be substantially in
the form of EXHIBIT E, attached hereto (or such other form as may be required by
any prospective mortgagee or purchaser of the Project, or any portion thereof),
indicating therein any exceptions thereto that may exist at that time, and shall
also contain any other information reasonably requested by Landlord or
Landlord's mortgagee or prospective purchaser or mortgagee. Tenant shall
execute and deliver whatever other instruments may be reasonably required for
such purposes. Landlord hereby agrees to provide to Tenant an estoppel
certificate signed by Landlord, containing the same types of information, and
within the same period of time, as set forth above, with such changes as are
reasonably necessary to reflect that the estoppel certificate is being granted
and signed by Landlord to Tenant, rather than from Tenant to Landlord or a
lender of Landlord. Failure of Tenant or Landlord, as the case may be, to
timely execute, acknowledge and deliver such estoppel certificate upon ten (10)
additional days written notice from the requesting party shall constitute an
acknowledgment by the other party that statements included in the estoppel
certificate are true and correct, without exception.
ARTICLE 11: SECURITY DEPOSIT
-----------------------------
11.1 DEPOSIT OF CASH AND LETTERS OF CREDIT. Tenant has previously paid to
or deposited with Landlord as required by the Agreement Regarding Closing
between Landlord, Tenant and Crescent, the following: (a) $192,377 in cash (the
"CASH SECURITY DEPOSIT"), (b) a letter of credit (the "SECOND LETTER OF CREDIT")
in the amount of $1,154,262 issued by The Bank of Nova Scotia to Landlord, as
beneficiary, for the account of Tenant, and (c) a letter of credit (the "FIRST
LETTER OF CREDIT"), in the amount of $4,825,000, issued by The Bank of Nova
Scotia to Crescent as beneficiary, for the account of Tenant, the rights of
Crescent thereunder having been transferred to Landlord upon Landlord's
acquisition of the Project. For purposes hereof, the First Letter of Credit and
the Second Letter of Credit shall be together referred to as the "LETTERS OF
CREDIT." The Cash Security Deposit and the Letters of Credit will be held as
security for timely performance of Tenant's obligations and liabilities under
the Agreement Regarding Assignment of Build-to-Suit Purchase Agreement dated of
even date between Landlord and Tenant, the Agreement Regarding Closing of even
date between Landlord, Tenant and Crescent, and this Lease (collectively, the
"SECURED AGREEMENTS"). Interest shall not accrue on the Cash Security Deposit
or the proceeds of any Letter of Credit held by Landlord. If Landlord elects to
hold all or any portion of such funds in an interest bearing account (which
Landlord has no obligation to do), such interest shall accrue for the sole
benefit of the Landlord, and shall not become a portion of the Cash Security
Deposit or any other security hereunder, and shall not in any event be paid to
or for the benefit of Tenant.
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11.2 SPECIAL PROVISIONS REGARDING LETTERS OF CREDIT. No later than sixty
(60) days prior to the expiration date of any Letter of Credit, Tenant shall
deliver to Landlord a substitute Letter of Credit similar in form, substance and
amount, and issued by the same issuer or another issuer approved by Landlord
(which approval shall not be unreasonably withheld by Landlord for an issuing
bank with a credit rating better than BBB+ by Standard and Poor and providing
for a place of presentation in a major urban area in the continental United
States), to the Letter of Credit to be replaced (except that the expiration date
shall be no sooner than twelve (12) months after the date such Letter of Credit
is issued). Tenant's failure to timely deliver a substitute Letter of Credit
under this SECTION 11.2 or as required by SECTION 16.1(g) shall, without notice,
demand or cure rights, automatically constitute an Event of Default hereunder
and, in addition to any other right or remedy available to Landlord hereunder or
otherwise available at law or in equity, Landlord may cash such Letter(s) of
Credit and hold such cash collateral as security for the obligations formerly
secured by such Letter(s) of Credit and/or apply such amounts to any amounts due
or to become due by Tenant under this Lease. Any such proceeds of the First
Letter of Credit which Landlord elects to apply to Tenant's obligations under
this Lease shall be applied first to the Amortized Improvement Repayment
(whether or not then due and owing), and then to any other amounts then due or
past due by Tenant hereunder. Any such proceeds of the Second Letter of Credit
which Landlord elects to apply to Tenant's obligations under this Lease will be
applied first to amounts then due and owing and amounts past due under this
Lease, and then to amounts not yet accrued hereunder. Tenant recognizes,
however, that Xxxxxxxx has negotiated for collateral in the form of letters of
credit because of additional security and benefits associated with letters of
credit; therefore, Landlord shall not in any event be required to draw upon a
Letter of Credit to "cure" any failure to deliver a substitute or extension
Letter of Credit hereunder, and shall be entitled to all rights and remedies
available at law or in equity upon the occurrence of an Event of Default. If
Tenant fails to timely deliver a substitute or renewal Letter of Credit as
required by this Lease and Landlord draws upon the Letter of Credit and holds
the proceeds as security for Tenant's obligations under this Lease, and Xxxxxx
subsequently delivers such substitute or renewal Letter of Credit to Landlord in
a form which otherwise complies with the requirements of this Lease, then, so
long as no other Material Default or Bankruptcy Event has occurred and is
continuing as of such date, Landlord shall accept such substitute or renewal
Letter of Credit, and shall return the remainder of the cash proceeds of the
draw under the prior Letter of Credit, but not to the extent the remainder of
such proceeds exceed the amount of the substitute Letter of Credit. Upon
termination of the Lease Term and satisfaction of all of Tenant's obligations,
duties and liabilities under the Secured Agreements, Landlord shall return the
undrawn Letters of Credit to Tenant.
11.3 RIGHTS UPON DEFAULT. Upon the occurrence and during the continuance
of an Event of Default or a Bankruptcy Event, without further confirmation or
verification, Landlord shall be entitled to draw, in whole or in part, either or
both of the Letters of Credit and be paid the amount drawn thereon. It is
expressly understood and agreed that neither the Cash Security Deposit nor the
Letters of Credit are an advance rental deposit or a measure of damages incurred
by Landlord in case of Xxxxxx's default. Upon the occurrence of any Event of
Default or a Bankruptcy Event, Landlord may, from time to time, without
prejudice to any other remedy provided herein or provided by law, use the Cash
Security Deposit and/or any draw(s) made on the Letters of Credit to the extent
necessary to make good any arrears of Rent or other payments due or to become
due to Landlord hereunder, and any other damage, injury, expense or liability
caused by such Event of Default or Bankruptcy Event. Application of the Cash
Security Deposit or the proceeds of the Second Letter of Credit will not cure
any default hereunder unless immediately following such application Tenant
restores the Cash Security Deposit or the Second Letter of Credit, as
applicable, to its original amount as it existed immediately prior to such
application. Although the Cash Security Deposit shall be deemed the property of
Landlord, any remaining balance shall be returned by Landlord to Tenant at such
time after termination of this Lease that all of the Tenant's obligations,
duties and liabilities under the Secured Agreements have been fulfilled.
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11.4 REDUCTION OF FIRST LETTER OF CREDIT. Notwithstanding the foregoing,
so long as no Material Default or Bankruptcy Event has occurred and is
continuing, and no default has occurred in the payment or performance of
Tenant's obligations, duties or liabilities under the other Secured Agreements,
Tenant may no more frequently than annually or each renewal date for the First
Letter of Credit, reduce the face amount of the First Letter of Credit to an
amount equal to the unpaid Amortized Improvement Repayment as of such date,
which amount shall be calculated in accordance with the special improvements
amortization schedule attached hereto as EXHIBIT H.
11.5 RETURN OF SECOND LETTER OF CREDIT. Notwithstanding the foregoing, so
long as (a) no Material Adverse Change has occurred in the financial condition
of Tenant as of the Term Commencement, and (b) no Material Default or Bankruptcy
Event has occurred and is continuing as of the Term Commencement Date, Landlord
shall return the Second Letter of Credit to Tenant on the Term Commencement
Date, and following such return, the term "Letter of Credit" shall refer only to
the First Letter of Credit (unless Tenant is later required to deliver and
maintain the Second Letter of Credit under SECTION 12.4 hereof). If the
conditions to Landlord's obligation to return the Second Letter of Credit to
Tenant on the Term Commencement Date are not satisfied as of the Term
Commencement Date, Tenant shall maintain the Second Letter of Credit as required
hereby for the Lease Term unless and until the date that both of the following
conditions have been satisfied: (x) the Standard and Poor rating for Tenant is
"BBB-" or better, and (y) no Material Default or Bankruptcy Event has occurred
and is continuing (provided, however, that if Landlord has required that Tenant
maintain the Second Letter of Credit under SECTION 12.4 hereof, the Second
Letter of Credit will not be returned). For purposes hereof, a "MATERIAL
ADVERSE CHANGE" shall be deemed to have occurred with respect to Tenant if, for
the twelve (12) month period ending on the last day of the quarterly fiscal
period of Tenant ending immediately prior to the Term Commencement Date, the Net
Sales of Tenant are less than $350,000,000, or Tenant's EBITDA (and calculated
with adjustments for charges related to Xxxxxx's calendar year 1997
recapitalization) is less than $40,000,000. For purposes hereof, (i) the term
"NET SALES"means Tenant's gross sales less discounts, allowances and returns;
(ii) the term "EBITDA" shall have the meaning assigned to such term in Tenant's
Corporate Credit Agreement; and (iii) the term "TENANT'S CORPORATE CREDIT
AGREEMENT"means the loan or credit agreement governing Tenant's primary third
party credit facility, as of the Term Commencement Date. If Xxxxxx's Corporate
Credit Agreement fails to include a definition for such term, Landlord and
Tenant shall negotiate in good faith to agree upon a definition for such term(s)
in a manner consistent with this Agreement generally accepted accounting
practices, consistently applied.
11.6 OBLIGATION TO MAINTAIN THE FIRST LETTER OF CREDIT. If at any time
during the Lease Term no Material Default or Bankruptcy Event has occurred and
is continuing and the Standard and Poor rating for Tenant is "BBB-" or better,
Landlord shall, upon Tenant's request, return the First Letter of Credit to
Tenant (so long as such conditions continue to be satisfied as of the date
Tenant requests such return). Notwithstanding the foregoing, if at any time
subsequent to the return of the First Letter of Credit the Standard & Poor
rating for Tenant is not "BBB-" or better, Tenant shall within thirty (30) days
deliver to Landlord a new First Letter of Credit in form and substance similar
to the original First Letter of Credit, except that the amount thereof shall not
exceed the unpaid Amortized Improvement Repayment as of such date (calculated in
accordance with EXHIBIT H attached hereto) and the expiration date therefor
shall be no sooner than twelve (12) months after the date of issuance. Tenant
shall maintain the First Letter of Credit as required by this Agreement at all
times that the Standard & Poor rating of Tenant is not "BBB-" or better, and
Landlord shall not require that Tenant maintain such First Letter of Credit and
will return same (within thirty (30) days following the date Tenant requests in
writing that Tenant return same and delivers to Landlord evidence of the
requisite Standard and Poor rating) at all times Tenant's Standard & Poor rating
is BBB- or better.
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ARTICLE 12: ASSIGNMENT AND SUBLETTING
--------------------------------------
12.1 CONSENT REQUIRED. Except for an Approved Sublease, Tenant shall not
assign or sublet the Project or any part thereof without Landlord's prior
written approval, which approval shall not be unreasonably withheld so long as
(a) no Material Event of Default has occurred and remains uncured, (b) the
proposed assignee or subtenant's activities at the Project will not involve a
violation of ARTICLES 3 OR 8 hereof, (c) the proposed assignee or subtenant is
of sound financial condition, and (d) Tenant has not previously assigned this
Lease or its rights hereunder. For purposes hereof, the term "APPROVED
SUBLEASE" means a sublease of less than thirty percent (30%) (or thirty percent
(30%) calculated in the aggregate all subleases) of the Building so long as the
following conditions are satisfied: (i) no Material Event of Default has
occurred and is continuing, (ii) the use of the Project by such subtenant shall
be limited to the Permitted Use, (iii) such sublease complies with one (1) or
more of the following: (A) a sublease to an entity wholly owned or controlled
by Tenant, (B) a sublease to a party or parties conducting business as a
supplier, distributor or otherwise with respect to Tenant's activities at the
Project, and for a term not to exceed ninety (90) days, or (C) the proposed
sublessee is of sound financial condition, (iv) the activities of such subtenant
at the Project shall be limited to uses not detrimental to the Project,
(v) Tenant has not previously assigned this Lease or its rights hereunder, and
(vi) the term of the sublease is shorter than the then remaining Lease Term. If
Tenant desires to assign this Lease or sublet any or all of the Project, Tenant
shall give Landlord written notice forty-five (45) days prior to the anticipated
effective date of the assignment or sublease. Landlord shall then have a period
of thirty (30) days following receipt of such notice and the information
required hereunder to notify Tenant in writing that Landlord elects to either
(x) refuse to consent to the proposed assignment or sublease, or (y) permit
Tenant to assign this Lease or sublet such space, except that Landlord may not
refuse to consent to an Approved Sublease. If Landlord should fail to notify
Tenant in writing of such election within said period, Landlord shall be deemed
to have waived option (x) above. Prior to the effective date of any assignment
or sublease (whether or not permitted hereunder), Tenant shall furnish to
Landlord true, correct and complete copies of all documents, instruments and
other information executed or delivered in connection therewith.
12.2 BONUS RENT. Any Rent or other consideration realized by Tenant under
any such sublease or assignment in excess of the Rent payable hereunder, after
amortization of (a) the reasonable cost of any improvements (including
demolition of the Subject Alterations) which Xxxxxx has made for the purpose of
assigning or subletting all or part of the Project and (b) reasonable subletting
and assignment leasing commissions paid by Tenant to unaffiliated third parties,
shall be paid one-half (1/2) to Tenant and one-half (1/2) to Landlord.
12.3 MARKET RENT. In any subletting or assignment undertaken by Tenant,
Tenant shall diligently seek to obtain the maximum rental amount available in
the marketplace for such subletting or assignment.
12.4 OTHER TRANSFERS. If Tenant is a corporation, a transfer of corporate
shares by sale, assignment, bequest, inheritance, operation of law or other
disposition (including such a transfer to or by a receiver or trustee in federal
or state bankruptcy, insolvency or other proceedings), so as to result in a
change in the present control of such corporation or any of its parent
corporations by the person or persons owning a majority of said corporate
shares, shall constitute an assignment for purposes of this paragraph. If
Tenant is a partnership, joint venture, limited liability company, trust or
other unincorporated business form, a transfer of the interest of persons, firms
or entities responsible for managerial control of Tenant by sale, assignment,
bequest, inheritance, or operation of law or other disposition (including such a
transfer to or by a receiver or trustee in federal or state bankruptcy,
insolvency or other proceedings), so as to result in a change in the present
control of said entity and/or a change in the identity of the persons
21
responsible for the general credit obligations of said entity shall constitute
an assignment for purposes of this ARTICLE 12. Notwithstanding the foregoing,
none of the following events shall constitute an "assignment" for purposes of
this Lease (except that Tenant shall remain liable and SECTION 12.6 shall apply
thereto) so long as such assignee continues to use the Property for a Permitted
Use: (a) a sale of all or substantially all the assets of Tenant or all or
substantially all of the corporate shares of Tenant in a single transaction or a
staged transaction which is part of an integrated whole (provided, however, that
if Landlord determines that such transaction will cause a material denigration
in the financial condition of the Tenant under this Lease, Landlord may require
as a condition thereto that Tenant restore and maintain the Second Letter of
Credit), (b) one or more public offerings of some or all of Tenant's equity
securities or the trading of such publicly offered shares thereafter, or (c) any
other sale of shares of Tenant leading to a change in control, so long as
Landlord agrees in writing that such sale shall not constitute an "assignment"
for purposes of this Lease.
12.5 NO RELEASE. No assignment or subletting by Tenant shall relieve
Tenant of any obligations under this Lease (or under any amendments to this
Lease or under any new Lease as contemplated by ARTICLE 18 hereof, for which
each and every Tenant hereunder shall have full joint and several liability).
Any assignment or subletting which conflicts with the provisions of this ARTICLE
12 shall, at Landlord's election, be voidable.
12.6 EFFECT OF ASSIGNMENT OR SUBLEASE. Upon an assignment of or sublease
under this Lease, (a) the terms and conditions of this Lease shall in no way be
deemed to have been waived or modified, (b) Tenant shall deliver to Landlord,
promptly after execution, an original executed copy of all documentation
pertaining to the assignment or sublease, and (c) no assignment or sublease
relating to this Lease or agreement entered into with respect thereto shall
relieve Tenant or any guarantor of the Lease from liability under this Lease.
Each and every sublease under this Lease shall be subordinate to this Lease.
ARTICLE 13: CONDEMNATION
-------------------------
13.1 SUBSTANTIAL TAKING. Each of Landlord and Tenant shall notify the
other promptly upon notice of a condemnation or threatened condemnation of all
or any portion of the Project. If the whole or any substantial portion of the
Project (which shall be deemed to mean sixty percent (60%) or more of the
Building or the Land) should be taken or condemned for any public use under
governmental law, ordinance, or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, and the taking would prevent or materially
interfere with Tenant's Permitted Use of the Project, this Lease shall terminate
and the Rent (but excluding the Amortized Improvement Repayment) shall be abated
during the unexpired portion of this lease, effective when the physical taking
of said Project shall have occurred.
13.2 PARTIAL TAKING. If a portion of the Project should be taken or
condemned for any public use under any governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and this Lease is not terminated as provided in SECTION 13.1 above,
this Lease shall not terminate, but the Rent (but excluding the Amortized
Improvement Repayment) payable hereunder during the unexpired portion of the
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances.
13.3 AWARD. Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such taking or conveyance and Tenant shall have no claim against
Landlord or otherwise for the value of any unexpired portion of this Lease.
Notwithstanding the foregoing, any compensation specifically awarded Tenant for
loss of business, Xxxxxx's personal property, moving cost, loss of goodwill or
otherwise, shall be and remain the property
22
of Tenant, and upon Xxxxxx's request Landlord will, at Xxxxxx's expense,
cooperate with Tenant in Tenant's efforts to assert such separate award(s) so
long as neither Xxxxxxxx's cooperation nor the separate award(s) sought by
Tenant will negatively impact Landlord or Landlord's condemnation-related
claim(s).
13.4 PAYMENT OF AMORTIZED IMPROVEMENT REPAYMENT. Notwithstanding anything
set forth herein to the contrary, upon any termination of this Lease under this
ARTICLE 13, Tenant shall pay to Landlord the unpaid Amortized Improvement
Repayment as of such date, calculated as described in EXHIBIT H attached hereto.
Notwithstanding SECTION 13.3 hereof, upon payment in full of the Amortized
Improvement Repayment, upon Xxxxxx's request, Landlord will assign to Tenant
(without recourse, representation or warranty) Landlord's condemnation award, if
any, with respect to the special improvements paid for with the $4,825,000
Amortized Improvement Repayment, and will reasonably cooperate with Tenant (at
Tenant's sole cost and expense) with respect to any separate claim Tenant may
file with respect to such improvements.
ARTICLE 14: CASUALTY DAMAGE
----------------------------
14.1 CASUALTY. If the Project or any portion thereof should be damaged or
destroyed by any casualty, Tenant shall give immediate written notice thereof to
Landlord and shall, within thirty (30) days thereafter, notify Landlord if
Tenant wishes to rebuild or wishes Landlord to rebuild (consistent, however,
with Landlord's obligations to do so under this ARTICLE 14). Tenant shall have
the option to rebuild so long as no Material Default or Bankruptcy Event has
occurred and is continuing as of such date, Tenant deposits with Landlord (or
such other party as may be holding the insurance proceeds as provided in
SECTION 6.1 hereof) the additional amounts, if any, required to complete such
rebuilding, and, prior to the commencement of such construction or renovation,
Landlord has approved the plans and specifications, construction means and
methods and contractors and primary subcontractors for such work (provided,
however, that Landlord shall not unreasonably withhold its consent to such plans
and specifications if such improvements (a) will be structurally sound and
comply in all respects with Governmental Requirements and the CCR's, (b) will be
substantially similar to or better in quality than the improvements as of the
Term Commencement Date, (c) in Landlord's sole but reasonable discretion, will
have a value which equals or exceeds the value of the improvements prior to such
casualty, and (d) have substantially the same size, area and dimensions as the
pre-casualty improvements.
If Tenant does not elect, or is not authorized to elect to so rebuild, then
Tenant shall immediately pay to Landlord (or such other party as may be holding
the insurance proceeds under SECTION 6.1 hereof) the applicable deductible and,
within sixty (60) days following the date of Tenant's notice of election or
other notice with respect to the unavailability of Tenant's option to rebuild
under this SECTION 14.1 (it being understood and agreed that Landlord shall have
sixty (60) days following final resolution of all issues associated with
Xxxxxx's right to rebuild under this SECTION 14.1 before Landlord is required to
give the notice required hereby), Landlord shall notify Tenant whether in
Landlord's opinion such repairs can be made either (a) within ninety (90) days,
(b) in more than ninety (90) days, but in less than twenty-four (24) months, or
(c) in more than twenty-four (24) months from the date of such notice.
14.2 MINOR DAMAGE. Subject to the provisions of SECTION 14.1 of this
Lease, if the Building should be damaged by any casualty but only to such
extent that rebuilding or repairs can in Landlord's estimation be completed
within ninety (90) days after the date upon which Landlord is notified by Tenant
of such damage, this Lease shall not terminate, and Landlord shall at its sole
cost and expense thereupon proceed with reasonable diligence to rebuild and
repair the Building to substantially the condition in which it existed prior to
such damage, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Building by Xxxxxx. If the
Building is untenantable in whole or in part following such damage,
23
the Rent (but excluding the Amortized Improvement Repayment) payable hereunder
during the period in which it is untenantable shall be reduced to such extent as
may be fair and reasonable under all of the circumstances.
14.3 PARTIAL DAMAGE. Subject to the provisions of SECTIONS 14.1 and 14.10
of this Lease, if the Building should be damaged by any casualty, but only to
such extent that rebuilding or repairs can in Landlord's estimation be completed
in more than ninety (90) days but in less than twenty-four (24) months, then
Landlord shall have the option of either (a) terminating the Lease upon not less
than one hundred and eighty (180) days notice, or (b) electing to rebuild or
repair the Building to substantially the condition in which it existed prior to
such damage except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Building by Tenant. If the
Building is untenantable in whole or in part following such damage, the Rent
(but excluding the Amortized Improvement Repayment) payable hereunder during the
period in which it is untenantable shall be reduced to such extent as may be
fair and reasonable under all of the circumstances. In the event that Landlord
should fail to complete such repairs and rebuilding within twenty-four (24)
months after the date upon which Landlord is notified by Tenant of such damage,
such period of time to be extended for delays caused by the fault or neglect of
Tenant or because of acts of God, acts of public agencies, labor disputes,
strikes, fires, freight embargoes, windy, stormy or inclement weather, inability
to obtain materials, supplies or fuels, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the reasonable
control of Landlord, Tenant may at its option terminate this Lease by delivering
one hundred and eighty (180) days prior written notice of termination to
Landlord as Xxxxxx's exclusive remedy, whereupon all rights and obligations
hereunder shall cease and terminate.
14.4 MAJOR DAMAGE. Subject to the provisions of SECTIONS 14.1 and 14.10 of
this Lease, if the Building should be damaged by any casualty and rebuilding or
repairs cannot in Landlord's estimation be completed within twenty-four (24)
months after the date upon which Landlord is notified by Tenant of such damage,
this Lease shall terminate upon not less than one hundred eighty (180) days
notice and the Rent (but excluding the Amortized Improvement Repayment) shall be
abated during the unexpired portion of this Lease, effective upon the date of
the occurrence of such damage.
14.5 LENDER REQUIREMENTS. Notwithstanding anything herein to the contrary,
but subject to the provisions of SECTION 14.10 below, in the event that a holder
of any indebtedness secured by a mortgage or deed of trust covering the Project
requires that the insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease upon not less than one
hundred and eighty (180) days notice by delivering written notice of termination
to Tenant within fifteen (15) days after such requirement is made by any such
holder, whereupon all rights and obligations hereunder shall cease and
terminate.
14.6 UNINSURED LOSS. Subject to the provisions of SECTION 14.10 below, if
the Building or Project is damaged or destroyed by any casualty that is
uninsured (excluding the amount of the deductible), then regardless of the
length of time to restore the damage portion of the property, Landlord shall
have the right to terminate this Lease.
14.7 END OF TERM. Subject to the provisions SECTION 14.10 below, in the
event of a property loss occurring during the last two (2) years of the Initial
Term hereof or of any Extension Term for which Tenant has duly exercised its
renewal option hereunder, Landlord need not undertake any repairs and may cancel
this Lease upon one hundred and eighty (180) days' notice.
24
14.8 AMORTIZED IMPROVEMENT REPAYMENT. Notwithstanding anything set forth
herein to the contrary, upon any termination of this Lease under this ARTICLE
14, Tenant shall pay to Landlord the unpaid Amortized Improvement Repayment as
of such date, calculated in accordance with EXHIBIT H attached hereto.
14.9 REPAIR COSTS. Landlord shall only be obligated to make repairs
pursuant to ARTICLE 14 of this Lease out of the insurance proceeds paid to
Landlord. In the event the insurance award under Xxxxxxxx's casualty insurance
(but in any event excluding any rental loss insurance proceeds) exceeds the
aggregate costs, losses and expenses of Landlord in connection with such
casualty and the repair of same, and in the event Landlord repairs the Project
with the proceeds hereof and this Lease remains in effect, then, to the extent
Landlord's casualty insurance policy and proceeds include losses with respect to
Tenant's personal property or fixtures at the Project, no Material Default or
Bankruptcy Event has occurred and is continuing, and Tenant is not otherwise
compensated for such losses, Landlord shall pay such excess casualty insurance
proceeds (and specifically include rental loss insurance proceeds) to Tenant.
14.10 TENANT'S OPTION TO AVOID TERMINATION. Within thirty (30) days
following receipt by Tenant of any Lease termination notice from Landlord under
this ARTICLE 14, Tenant shall have the option to notify Landlord of its intent
to rebuild, restore and/or repair the Project so long as, prior to the
commencement of construction or renovation, Landlord has approved the plans and
specifications, construction means and methods and contractors and primary
subcontractors for such work (provided, however, that Landlord shall not
unreasonably withhold its consent to the plans and specifications if such
improvements (a) will be structurally sound and comply in all respects with
Governmental Requirements and the CCR's, (b) will be substantially similar to or
better in quality than the improvements as of the Term Commencement Date, (c) in
Landlord's sole but reasonable discretion, will have a value which equals or
exceeds the value of the improvements prior to such casualty, and (d) have
substantially the same size, area and dimensions as the pre-casualty
improvements, and Tenant deposits with Landlord or its mortgagee sufficient
funds for such rebuilding, restoration or repair, to be held and disbursed by
Landlord or such mortgagee to pay such costs as incurred). Notwithstanding the
foregoing, Tenant may begin grading and clearing for site preparation work prior
to Tenant's deposit of funds sufficient to pay for all such rebuilding, repair
or restoration if, as of the date of commencement of such site preparation work
(i) the Standard and Poor rating for Tenant is "BBB-" or better, and (ii) Tenant
delivers to Landlord a letter of credit meeting the requirements of ARTICLE 11
of this Lease, but in an amount equal to the total costs for all such
rebuilding, restoration or repair. Tenant shall furnish Landlord such
information, documentation, permits, plans and specifications and other matters
with respect to the proposed work as Landlord may request. Upon Xxxxxxxx's
written confirmation that the conditions to this SECTION 14.10 have been
satisfied, Xxxxxxxx's termination notice shall be deemed to be revoked, and
Tenant shall diligently prosecute such work in a good and workmanlike manner,
and consistent with the materials furnished to Landlord under this SECTION
14.10.
ARTICLE 15: HOLDING OVER
-------------------------
If Tenant shall retain possession of the Project or any portion thereof
without Landlord's consent following the expiration of the Lease or sooner
termination for any reason, then Tenant shall pay to Landlord, in addition to
other amounts due and owing by Tenant under this Lease (calculated as if the
Lease Term were extended for the holdover period), for each day of such
retention triple the amount of the Scheduled Base Rent (prorated on a daily
basis) for the first month prior to the date of expiration or termination;
provided, however, upon not less than one hundred twenty (120) days written
notice from Tenant, and so long as no Material Default has occurred and is
continuing, Tenant may request that Tenant retain possession of the Project for
either one (1) or two (2) months following the expiration or termination of the
Lease Term for the sole purpose of completing the removal of the Subject
Alterations
25
in a manner consistent with the Demolition Memo, and the Scheduled Base Rent
monthly rental for each month in such one (1) or two (2) month period shall be
one hundred and fifty percent (150%) of the Scheduled Base Rent for the month
ending immediately prior to the expiration or termination of the Lease Term.
Tenant shall also indemnify and hold Landlord harmless from any loss or
liability resulting from delay by Tenant in surrendering the Project including,
without limitation, any claims made by any succeeding tenant founded on such
delay (which indemnity amount shall be reduced by the amount by which holdover
Scheduled Base Rent under this ARTICLE 15 which is paid by Tenant exceeds the
product of (a) Scheduled Base Rent for the month ending immediately prior to
such holdover period, times (b) the number of months in such holdover period.
Alternatively, if Landlord gives notice of Xxxxxxxx's consent to Xxxxxx's
holding over, such holding over shall constitute renewal of the Lease on a
month-to-month basis, requiring payment of Scheduled Base Rent at the rate
provided in this ARTICLE 15 and on the other terms and conditions of this Lease.
Acceptance of Rent by Landlord following expiration or termination shall not
constitute a renewal of this Lease, and nothing contained in this paragraph
shall waive Landlord's right of reentry or any other right. Unless Landlord
exercises the option hereby given to it, Tenant shall be only a tenant at
sufferance, whether or not Landlord accepts any Rent from Tenant while Tenant is
holding over without Xxxxxxxx's written consent. Additionally, in the event that
upon termination of the Lease, Tenant has not fulfilled its obligation with
respect to repairs and cleanup of the Project or any other Tenant obligations as
set forth in this Lease, then Landlord shall have the right to perform any such
obligations as it deems necessary at Tenant's sole cost and expense, and any
time required by Landlord to complete such obligations shall be considered a
period of holding over and the terms of this ARTICLE 15 shall apply; provided,
however, that with respect to Scheduled Base Rent for such additional holdover
period, Tenant shall be credited in full for any Scheduled Base Rent received by
Landlord as damages under the provisions of ARTICLE 16 of this Lease which
relate to such additional holdover period.
ARTICLE 16: DEFAULT
--------------------
16.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" on the part of Tenant:
(a) ABANDONMENT. For any period prior to the last year of the Lease
Term, vacation or abandonment of the Building for a continuous period in excess
of thirty (30) days; provided, however, that if Tenant is actively seeking an
assignee or subtenant for this Lease which Tenant in good faith believes will be
acceptable to Landlord, and the Standard and Poor rating of Tenant is "BBB-" or
better, such thirty (30)-day period may be extended for up to (i) if Tenant has
assigned its rights under this Lease, one (1) year, or (ii) if Tenant has not
assigned its rights under this Lease, five (5) years, but in either case only so
long as Tenant continues to actively seek an acceptable assignee for this Lease
or subtenant for the Premises and maintains such Standard and Poor rating;
provided, however, that in the case of SUBSECTION (II), above, extending such
period to five (5) years, it is understood, agreed and confirmed that at any
time after the expiration of the first year of such five (5) year period, and
without declaring a default hereunder, Landlord shall have the option but not
the obligation, to terminate this Lease or relet the Project as provided in
SECTIONS 16.2(A)(I) and (II) hereof, and Tenant shall be liable to Landlord for
all damages, claims and other amounts which would otherwise be payable by Tenant
under SECTION 16.2 hereof if an Event of Default had occurred and Landlord
exercised such remedy in connection therewith.
(b) NONPAYMENT OF RENT. Failure to pay any installment of Rent or
any other amount due hereunder upon the date when said payment is due, and the
continuance of such failure for ten (10) days following written notice from
Landlord (or its agent) of such failure. All failures to pay any monetary
obligation to be paid by Tenant under this Lease shall be construed as
obligations for payment of Rent.
26
(c) OTHER OBLIGATIONS. Failure to perform any obligation, agreement
or covenant under this Lease other than those matters specified in SUBSECTIONS
(A), (B), (G) or (H) of this SECTION 16.1, such failure continuing for thirty
(30) days after written notice of such failure, or such longer period as
Landlord reasonably determines to be reasonably necessary to remedy such
default, provided that Tenant shall continuously and diligently pursue such
remedy at all times until such default is cured.
(d) GENERAL ASSIGNMENT. A general assignment by Xxxxxx for the
benefit of its creditors.
(e) RECEIVERSHIP. The employment of a receiver, trustee or
liquidator to take possession of all or substantially all of the assets of
Tenant or of the Project, if such attachment or other seizure remains
undismissed or undischarged for a period of ninety (90) days after the levy
thereof.
(f) ATTACHMENT. The attachment, execution or other judicial seizure
of all or substantially all of the assets of Tenant or of the Project, if such
attachment or other seizure remains undismissed or undischarged for a period of
ninety (90) days after the levy thereof.
(g) LETTERS OF CREDIT - ISSUER. Landlord notifies Tenant in writing
that a material adverse change has occurred in the financial condition or net
worth of the issuer of any Letter of Credit or that Xxxxxxxx believes that the
ability or willingness of any issuer of any Letter of Credit has been impaired,
and Xxxxxx fails to deliver to Landlord within sixty (60) days following the
date of such notice substitute Letter(s) of Credit issued by another issuer
acceptable to Landlord and otherwise conforming in amount, form and substance to
the Letter(s) of Credit being replaced (except that the expiration date of such
substitute Letter(s) of Credit shall be no sooner than the expiration date of
the Letter of Credit being replaced).
(h) LETTER OF CREDIT. Tenant fails to deliver substitute Letter(s)
of Credit to Landlord at the times and in the manner required by SECTION 11.2
hereof.
16.2 RIGHTS AND REMEDIES UPON DEFAULT.
(a) REMEDIES UPON DEFAULT. On the occurrence and during the
continuance of an Event of Default, Landlord may pursue any one or more of the
following remedies without any notice or demand whatsoever, except as otherwise
indicated:
(i) LEASE TERMINATION. Terminate this Lease by giving
written notice of termination to Tenant, in which event Tenant shall immediately
surrender the Project to Landlord. If Tenant fails to so surrender the Project,
then Landlord may, without prejudice to any other remedy it has for possession
of the Project or arrearages in Rent or other damages, re-enter and take
possession of the Project and expel or remove Tenant and any other person
occupying the Project or any part thereof, without being liable for any damages,
whether caused by the negligence of Landlord or otherwise (excepting Landlord's
gross negligence or willful misconduct), all of which damages are hereby waived
by Tenant.
(ii) RELETTING. Landlord may re-enter and take possession
of the Project without terminating this Lease and without being liable for any
damages, whether caused by the negligence of Landlord or otherwise (excepting
Landlord's gross negligence or willful misconduct) (all of which damages are
hereby waived by Xxxxxx), and relet the Project and apply the rent received to
the account of Tenant. No reletting by Xxxxxxxx is considered to be for its own
account unless Landlord has notified Tenant in writing that this Lease has been
terminated. Landlord may relet the Project on whatever
27
terms and conditions Landlord, in its sole discretion, deems advisable.
Xxxxxxxx's action under this SUBSECTION 16.2(A)(II) is not considered an
acceptance of Xxxxxx's surrender of the Project unless Landlord so notifies
Tenant in writing.
(iii) LANDLORD PERFORMANCE OF TENANT'S OBLIGATIONS. Re-enter
the Project without terminating this Lease and without being liable for any
damages, whether caused by the negligence of Landlord or otherwise (excepting
Landlord's gross negligence or willful misconduct), and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant shall pay to Landlord, on
demand, the expenses incurred by Landlord in effecting compliance with Tenant's
obligations under this Lease, PLUS interest thereon at the rate provided in
SECTION 16.4 until repaid.
(b) TENANT PAYMENTS. Upon the occurrence of an Event of Default by
Tenant with respect to which Landlord elects to either terminate this Lease or
terminate Tenant's possession of the Project without terminating this Lease (and
without limiting Tenant's obligations provided elsewhere in this Lease,
including under SUBSECTION 16.2(D) below) and until Landlord relets the Project,
Tenant shall pay to Landlord, by the first day of each calendar month, the
amount owed by Tenant under this Lease. After the Project has been relet by
Landlord, Tenant shall pay to Landlord, on the 20th day of each calendar month,
the difference between the amount owed by Tenant under this Lease and the amount
actually collected by Landlord for that month. If Landlord brings suit to
collect a deficiency, Landlord may allow the deficiency to accumulate and may
bring an action on several or all of the accrued deficiencies at one time. No
suit shall prejudice Xxxxxxxx's right to bring a similar action for any
deficiency or deficiencies that arise later. Any amount collected by Landlord
for any calendar month from subsequent tenants which exceeds the amounts owed by
Xxxxxx shall be credited to reduce Tenant's future liability in a calendar month
for which the amount collected by Landlord is less than the amount owed by
Xxxxxx, as Xxxxxx's sole right to that excess.
(B) [Intentionally Deleted].
(c) PAYMENTS. All payments by Tenant under this Lease shall be paid
without deduction, offset or recoupment whatsoever, to Landlord at the address
specified in the Basic Lease Information or to such other firm or to such other
place as Landlord may from time-to-time designate in writing or pursuant to wire
transfer instructions which shall be on file with Tenant at all times during the
term of this Lease, which instructions may be modified at any time by Landlord
by written notice to Tenant.
(d) MEASURE OF CERTAIN DAMAGES. In all events, Xxxxxx is liable for
all damages of whatever kind or nature, direct or indirect, suffered by Landlord
as a result of the occurrence of an Event of Default. If Xxxxxx fails to
promptly pay Landlord for the damages suffered, Landlord may pursue a monetary
recovery from Tenant. Included among those damages are all expenses incurred by
Landlord in repossessing the Project (including increased insurance premiums
resulting from Xxxxxx's vacancy), all expenses incurred by Landlord in reletting
the Project (including those incurred for advertisements and brokerage fees and
needed repairs, remodeling and replacements), all concessions granted to a new
tenant on a reletting, all losses incurred by Landlord as a result of Tenant's
default, a reasonable allowance for Landlord's administrative costs attributable
to Tenant's default, and all reasonable attorneys' fees and expenses incurred by
Landlord in enforcing any of Landlord's rights or remedies against Tenant. All
capital expenditures reasonably incurred by Landlord in constructing additions
or alterations for the reletting of the Project and all rent concessions granted
to a new tenant as a term or condition of such reletting shall be amortized over
the term of such new lease or, with respect to the cost of additions and
alteration, the shorter useful life of such additions and alterations as
reasonably determined by Landlord.
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(e) PAYMENT OF AMORTIZED IMPROVEMENT REPAYMENT. At Landlord's
option, upon the occurrence and during the continuance of an Event of Default,
and in addition to (but without duplication of, e.g. drawing on the First Letter
of Credit) any other right or remedy of Landlord in connection therewith, Tenant
shall pay to Landlord the unpaid Amortized Improvement Repayment as of such
date, calculated in accordance with EXHIBIT H attached hereto.
(f) NO ELECTION OF REMEDIES. Pursuit of any of the foregoing
remedies does not constitute an irrevocable election of remedies nor preclude
pursuit of any other remedy provided elsewhere in this Lease or by applicable
law, and none is exclusive of another unless so expressly provided in this Lease
or by applicable law. Likewise, except to the extent provided specifically to
the contrary in this Lease, such as in SECTIONS 4.2(B) and 16.4, forbearance by
Landlord to enforce one or more of the rights or remedies available to it upon
an Event of Default does not constitute a waiver of that default or of the right
to exercise that right or remedy later or of any rent, damages or other amounts
due to Landlord hereunder. Amounts drawn by Landlord under the Letters of
Credit shall be applied to satisfy Tenant's obligations under this Lease,
whether or not then due and owing.
(g) LIEN FOR RENT. SUBJECT TO ANY SECURITY INTEREST OR CONDITIONAL
SALES CONTRACT IN FAVOR OF A THIRD PARTY NOT AN AFFILIATE OF TENANT, WHICH SHALL
HAVE PRIORITY, TENANT HEREBY GRANTS TO LANDLORD A LIEN AND SECURITY INTEREST IN
TENANT'S PROPERTY (TOGETHER WITH THE PROCEEDS FROM THE DISPOSITION OF THOSE
ITEMS) AS SECURITY FOR PAYMENT OF ALL RENT AND OTHER SUMS AGREED TO BE PAID BY
TENANT IN THIS LEASE. THE PROVISIONS OF THIS SUBSECTION 16.2(G) CONSTITUTE A
SECURITY AGREEMENT UNDER THE UNIFORM COMMERCIAL CODE OF THE STATE IN WHICH THE
LAND IS LOCATED, AND LANDLORD HAS AND MAY ENFORCE A SECURITY INTEREST IN
TENANT'S PROPERTY. LANDLORD MAY AT ITS ELECTION AT ANY TIME FILE A PHOTOCOPY OF
A MEMORANDUM OF THIS LEASE AS A FINANCING STATEMENT. LANDLORD, AS SECURED
PARTY, HAS ALL OF THE RIGHTS AND REMEDIES AFFORDED A SECURED PARTY UNDER THE
UNIFORM COMMERCIAL CODE OF THE STATE IN WHICH THE LAND IS LOCATED IN ADDITION TO
AND CUMULATIVE OF THE LANDLORD'S LIENS AND RIGHTS PROVIDED BY LAW OR BY THE
OTHER TERMS AND PROVISIONS OF THIS LEASE.
Upon Xxxxxxxx's request, Xxxxxx agrees to execute UCC-1 financing
statements with respect to the security interests granted herein.
16.3 [INTENTIONALLY DELETED].
16.4 INTEREST. Any amount owed by Tenant to Landlord which is not paid on
or before the date thirty (30) days after the date due shall bear interest at
the lesser of (a) the rate per annum which shall from day to day be equal to the
sum of two and one-half percent (2-1/2%) over the prime rate reported in the
Wall Street Journal as published closest prior to the date when due, or the (b)
the maximum rate of interest permitted to be contracted for by applicable law.
However, interest shall not be payable on late charges to be paid by Tenant
under this Lease. The payment of interest on such amounts shall not excuse or
cure any default by Tenant under this Lease, and shall be due and payable by
Tenant on or before the date thirty (30) days following receipt by Tenant of an
invoice with respect to such interest sent by or on behalf of Landlord (which
invoice shall be sent by Landlord within sixty (60) days following the end of
any calendar month for which interest is being so invoiced or the liability
therefor shall be deemed waived by Landlord).
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16.5 REMEDIES CUMULATIVE. All rights, privileges and elections or remedies
of the parties are cumulative and not alternative to the extent permitted by law
and except as otherwise provided herein. All amounts drawn by Landlord under
any Letter of Credit shall be applied by Landlord to amounts due or to become
due by Tenant under this Lease.
16.6 BANKRUPTCY. If at any time during the term of this Lease there shall
be filed by or against Tenant in any court pursuant to any statute either of the
United States or of any State a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of the property of Tenant, or if a receiver or trustee takes possession
of any of the assets of Tenant, or if the leasehold interest herein passes to a
receiver, or if Tenant makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement (any of which are referred to herein
as a "BANKRUPTCY EVENT"), then the following provisions shall apply:
(a) In all events any receiver or trustee in bankruptcy of Tenant as
debtor in possession ("DEBTOR") shall either expressly assume or reject this
Lease within sixty (60) days following the entry of an "Order for Relief."
(b) In the event of an assumption of the Lease by a Debtor, receiver,
or trustee, such Debtor, receiver, or trustee shall immediately after such
assumption (i) cure any default or provide adequate assurances that defaults
will be promptly cured; and (ii) compensate Landlord for actual pecuniary loss
or provide adequate assurances that compensation will be made for actual
pecuniary loss; and (iii) provide adequate assurance of future performance.
(c) If an Event of Default has occurred, the party assuming the Lease
may not require Landlord to provide services or supplies incidental to the Lease
before its assumption by such trustee or Debtor, unless Landlord is compensated
under the terms of the Lease for such services and supplies provided before the
assumption of such Lease.
(d) Landlord specifically reserves any and all remedies available to
Landlord in ARTICLE 16 hereof or at law or in equity in respect of a Bankruptcy
Event by Tenant to the extent such remedies are permitted by law, and the
occurrence of any Bankruptcy Event shall constitute an additional Event of
Default under this Lease.
16.7 SUBLESSEES OF TENANT. If Landlord terminates this Lease following an
Event of Default or Bankruptcy Event, or if this Lease is terminated or the
Lease Term expires for any reason whatsoever, Landlord shall have the right to
terminate any and all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Xxxxxx and affecting the Project or
may, in Landlord's sole discretion, succeed to Tenant's interest in such
subleases, licenses, concessions or arrangements. In the event of Landlord's
election to succeed to Xxxxxx's interest in any such subleases, licenses,
concessions or arrangements, Tenant shall, as of the date of notice by Landlord
of such election, have no further right to or interest in the rent or other
consideration receivable thereunder; provided, however, that Tenant shall be
entitled to a full credit toward its rental obligations to Landlord under this
Lease for any rent received by Landlord with respect to any such subleases,
licenses, concessions or other consensual arrangements.
16.8 WAIVER OF DEFAULT. No waiver by Landlord or Tenant of any violation
or breach of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other or later violation or
breach of the same or any other of the terms, provisions, and covenants herein
contained. Forbearance by Landlord or Tenant in enforcement of one or more of
the remedies available to such party upon an Event of Default or Bankruptcy
Event shall not be deemed or construed to constitute a waiver of such Event of
Default or Bankruptcy Event. The acceptance of any
30
Rent hereunder by Xxxxxxxx following the occurrence of any Event of Default,
Potential Default or Bankruptcy Event, whether or not known to Landlord, shall
not be deemed a waiver of any such Event of Default, Potential Default or
Bankruptcy Event, except only a default in the payment of the Rent so accepted.
ARTICLE 17: RIGHT OF FIRST OFFER
---------------------------------
In the event Landlord decides to sell the Project (with the exception of
the sale of all or substantially all of Landlord's assets), and so long as
Xxxxxx has not assigned its rights hereunder, Landlord shall deliver written
notice of its intent to sell (the "SELLING NOTICE") to Tenant. Upon receipt of
the Selling Notice, Tenant shall have the right and option to offer to purchase
the Project (the "OFFER RIGHT"), exercisable by written notice ("TENANT OFFER
NOTICE") to Landlord at any time during a period of thirty (30) days from
Xxxxxx's receipt of the Selling Notice. Such Tenant Offer Notice shall provide
that such sale to Tenant shall be an all-cash sale; the Project shall be
conveyed to Tenant on an "as-is, where-is, with all faults" basis and without
representations or warranties by Landlord except as to Landlord's existence and
authority to convey the Project to Tenant, and free and clear of any voluntary
encumbrances granted by Landlord with respect to the Project without Tenant's
consent or which are caused or arise from Tenant's actions or inactions in
violation of this Lease (any such encumbrances to be referred to herein as
"LANDLORD ENCUMBRANCES"); Xxxxxx's offer shall be absolute and subject to no
contingencies; atTenant's option, this Lease shall be automatically terminated
as of the date of such conveyance; and Landlord shall be automatically released
with respect to all of its obligations and liabilities under this Lease as of
the date of such conveyance. Tenant shall have the obligation to consummate the
sale notwithstanding any casualty or condemnation that occurs with respect to
the Project after delivery of the Tenant Offer Notice and before closing, and,
at closing, Landlord shall assign to Tenant such casualty or condemnation
proceeds, as applicable. Further, the Tenant Offer Notice shall outline the
other material terms and conditions of the sale, including, without limitation,
the purchase price, and the closing date. If the terms outlined in the Tenant
Offer Notice are acceptable to Landlord, Landlord and Tenant shall enter into a
purchase agreement consistent with the terms and conditions of such Tenant Offer
Notice. Within forty-five (45) days following Xxxxxxxx's acceptance thereof,
Tenant shall purchase the Project within the period set forth in the Tenant
Offer Notice and on the terms and conditions set forth herein and therein. If
Tenant fails to purchase the Project after giving the Tenant Offer Notice,
Landlord may either enforce Tenant's obligation to so purchase the Property by
specific performance (and recover all costs of enforcement) or pursue Tenant for
all losses, costs, damages and expenses incurred by Landlord because of such
default. Notwithstanding anything set forth herein to the contrary, Tenant
shall have no Offer Right if Tenant fails to pay to Landlord the entire unpaid
Amortized Improvement Repayment under this Lease as of the date of closing (in
addition to the purchase price set forth in this ARTICLE 17). If Landlord
rejects the Tenant Offer Notice, Tenant shall have no further rights with
respect to the Project under this ARTICLE 17, but if Landlord accepts bids for
the Project from the public generally, Landlord will allow Tenant to submit a
bid for purchase of the Project, although Landlord will not be required to
accept Xxxxxx's offer, it being agreed that Landlord may accept an offer lower
than or less favorable to Landlord than Xxxxxx's offer, and this ARTICLE 17
shall continue in effect if any such successor Xxxxxxxx decides to sell the
Project.
ARTICLE 18: EXPANSION
----------------------
18.1 TENANT'S EXPANSION RIGHT. Landlord has of even date herewith entered
into an Option Agreement (such agreement as it may from time to time be amended,
restated, or supplemented, the "OPTION AGREEMENT") containing an "OPTION"
(therein so called) for Landlord to purchase certain real property located
adjacent to the Land, as more particularly described on EXHIBIT C attached
hereto (the
31
"ADJACENT LAND"). At any time during the period commencing on the Term
Commencement Date and ending on the date six (6) months prior to the termination
of the Option Period under the Option Agreement (the "EXPANSION OPTION PERIOD"),
if Tenant determines that it would like to expand its activities at the Project
onto the Adjacent Land, Tenant shall comply with the provision of this ARTICLE
18 with respect thereto (the "EXPANSION RIGHT"). The Adjacent Land and the
expansion of the Building and improvements proposed to be constructed on the
Adjacent Land shall be referred to herein as the "EXPANSION PROJECT." Landlord
agrees that Landlord will not voluntarily terminate the Option Agreement or any
Purchase and Sale Agreement thereunder without Tenant's consent.
18.2 EXERCISE OF TENANT'S EXPANSION RIGHT. Tenant may exercise the
Expansion Right at any time during the Expansion Option Period by delivering
written notice (the "TENANT EXPANSION NOTICE") to Landlord of Tenant's exercise
of the Expansion Right. The Tenant Expansion Notice shall contain (i) Tenant's
preliminary plans and specifications for the proposed expansion, (ii) Tenant's
proposed schedule for construction and completion, and (iii) Tenant's proposed
budget for the expansion (collectively, the "EXPANSION PROPOSAL").
18.3 LANDLORD'S RESPONSE TO TENANT EXPANSION NOTICE. Within thirty (30)
days following Xxxxxxxx's receipt of the Tenant Expansion Notice, Landlord shall
give Tenant a preliminary, non-binding indication of its interest in developing
the Expansion Project for lease to Tenant. If Landlord's preliminary,
non-binding response is favorable, Landlord and Tenant shall work diligently and
in good faith to finalize the plans and specifications, budget,
construction/project schedule and enter into an amendment to this Lease (the
"EXPANSION AMENDMENT") consistent with SECTION 18.4 hereof, within ninety (90)
days. Within one hundred and twenty (120) days following Xxxxxxxx's receipt of
the Tenant Expansion Notice, Landlord shall deliver written notice to Tenant in
which Landlord shall indicate whether (i) Landlord elects to exercise the Option
with respect to the Adjacent Land, construct the Expansion Project, and lease
the Expansion Project to Tenant upon the terms provided in this ARTICLE 18
("LANDLORD ACCEPTANCE") and as provided in the agreed upon plans and
specifications, budget, construction/project schedule and Expansion Amendment;
or (ii) Landlord elects not to acquire the Adjacent Land and construct the
Expansion Project ("LANDLORD REJECTION").
(a) Within thirty (30) days following Xxxxxx's receipt of the
Landlord Rejection, Tenant shall deliver written notice (the "TENANT DECISION
NOTICE") to Landlord indicating whether Tenant elects to purchase the Project
and the Option from Landlord. If Tenant elects to purchase the Project and the
Option from Landlord, the sale will be consummated in accordance with SECTION
18.5. If Tenant does not elect to purchase the Project and the Option, or
Tenant fails to respond to the Landlord Rejection within thirty (30) days of
such Landlord Rejection, Tenant shall have no further rights with respect to the
Adjacent Land.
(b) If Landlord and Tenant are unable to agree on a form of Expansion
Amendment by the Landlord Acceptance, Landlord and Tenant shall continue to
negotiate in good faith to execute the Expansion Amendment consistent with
SECTION 18.4 hereof, for a period of up to sixty (60) days following the date of
the Landlord Acceptance. If Landlord and Xxxxxx are unable to agree with
respect to the Expansion Amendment within sixty (60) days following the date of
the Landlord Acceptance, Landlord shall be deemed to have elected the Landlord
Rejection as of such last date, and Tenant shall have the rights and options
provided in SECTION 18.3(A) hereof.
18.4 EXPANSION AMENDMENT. Within sixty (60) days following the date of the
Landlord Acceptance, Tenant and Landlord shall execute the Expansion Amendment
setting forth the agreement of Landlord and Tenant regarding the Expansion
Project as specified herein (but subject in any event to
32
Landlord's acquisition of the Adjacent Land pursuant to the Option Agreement).
The Expansion Amendment shall contain the following terms and conditions:
(a) Scheduled Base Rent per annum for the Expansion Project shall be
(i) in years 1-5 of the Initial Term of the Expansion Lease, the Total Expansion
Costs MULTIPLIED BY the sum of the Ten-Year Mortgage Money Rate at the beginning
of the applicable lease year and three-hundred (300) basis points (the "INITIAL
BASE RENT"); (ii) in years 6-10, an amount equal to 110% of the Initial Base
Rent (the "STEPPED BASE RENT"); and (iii) if the Initial Term of the Expansion
Lease is more than ten (10) years, in years 10 through the end of the term of
the Expansion Lease, an amount equal to 110% of the most recent Stepped Base
Rent, adjusted at the end of each five (5) year period. Notwithstanding the
foregoing, if Scheduled Base Rent under this Lease is scheduled to increase
under this Lease prior to the date for a Scheduled Base Rent increase under the
Expansion Amendment, Scheduled Base Rent under the Expansion Amendment shall be
increased by an amount equal to 0.167% times the number of months from
substantial completion of the Expansion Project until the date of such rental
increase. The term "TEN-YEAR MORTGAGE MONEY RATE" shall mean the mortgage
interest rate (i.e., the amount of annual debt service, expressed as a
percentage of the loan amount, that is necessary to pay interest) at the time
such determination is being made associated with mortgage loans made available
by one of the following institutional lenders for permanent loans from
properties similar to the Expansion Project, with a maturity date of no less
than ten (10) years: Metropolitan Life Insurance Company; Prudential Life
Insurance Company; and The Principal Financial Group. If such mortgage interest
rates at the above-named institutional lenders differ, Landlord may choose one
of such interest rates. If any of such institutional lenders are not providing
permanent financing for properties similar to the Expansion Project, then
Landlord may substitute another comparable lender therefor. The term "TOTAL
EXPANSION COSTS" shall mean all soft and hard costs incurred by Landlord in
connection with the acquisition, design, construction and leasing of the
Expansion Project, including, without limitation, all architectural,
engineering, contractor, marketing, leasing, brokerage and legals fees and
expenses, any interest expenses, tax insurance payments incurred during such
construction process, the cost of landscaping and any loan or mortgage fees, and
any other costs, fees or expenses incurred with such acquisition, construction
and development. Amortized Improvement Repayment shall be determined based upon
the special improvements required by the plans and specifications for the
Expansion Project.
(b) The Term Commencement Date for the Expansion Project under the
Expansion Amendment shall be the date the Expansion Project is "Substantially
Complete", as such term is defined in the Agreement Regarding Closing of even
date between Tenant, Crescent and Landlord. The term of this Lease, as amended
by the Expansion Amendment, shall expire on the later of (i) one-hundred-twenty
(120) full calendar months thereafter, or (ii) the expiration of this Lease. If
at the time of the Expansion Amendment less than ten (10) years remain in the
Initial Term of this Lease, the Initial Term of this Lease shall automatically
and without further documentation be extended to be co-terminus with the
Expansion Amendment. The Base Rent for such extended Initial Term of this Lease
shall be determined as if such extended term were an extension term under
SECTION 2.1(B) of this Lease.
(c) Landlord's obligations under the Expansion Amendment (and
Xxxxxxxx's acceptance of Tenant's Expansion Proposal under this ARTICLE 18)
shall be contingent upon Landlord's acquisition of the Adjacent Land pursuant to
the Option Agreement. However, at Xxxxxx's request, Landlord will cooperate
with Tenant to jointly enforce Crescent's obligation to sell the Adjacent Land
pursuant to the Option Agreement, and the costs incurred by Landlord in pursuing
same shall be added to the Total Expansion Costs. If an Expansion Amendment is
not executed with respect to the Adjacent Land, Tenant shall reimburse Landlord
within ten (10) days following Landlord's written demand therefor, for the costs
incurred by Landlord in cooperating with Xxxxxx and enforcing the Option
Agreement.
33
18.5 SALE TO TENANT. If Tenant elects to purchase the Project and the
Option pursuant to SECTION 18.3(A), Tenant must close such purchase within
forty-five (45) days following the date of such Tenant Decision Notice. The
purchase price for the Project and the Option shall be the amount necessary to
produce an internal rate of return to Landlord of thirteen percent (13%),
calculated using an initial investment of $16,800,000 (which amount shall be
adjusted on a dollar-for-dollar basis for any reductions in the purchase price
which reduce Scheduled Base Rent, as provided in SECTION 4.4 hereof) and
Scheduled Base Rent actually paid and collected by Landlord. Such sale to
Tenant shall be an all-cash sale; the Project shall be conveyed to Tenant on an
"as-is, where-is, with all faults" basis and without representations or
warranties by Landlord except as to Landlord's existence and authority to convey
the Project to Tenant, and free and clear of all Landlord Encumbrances; the
conveyance shall be absolute and subject to no contingencies; and the Lease
shall be automatically terminated as of the closing date of such conveyance.
Notwithstanding the foregoing, Tenant shall have no option to so purchase the
Project and the Option if a Material Event of Default or Bankruptcy Event has
occurred and is continuing as of such date, or if Tenant fails to pay to
Landlord the entire unpaid Amortized Improvement Repayment under this Lease as
of the date of closing (in addition to the purchase price set forth in this
SECTION 18.5).
18.6 TENANT'S ADDITIONAL RIGHTS WITH RESPECT TO THE ADJACENT LAND.
Notwithstanding the foregoing, if Tenant is not willing to commit to the
expansion onto the Adjacent Land prior to the expiration of the Expansion Option
Period, Tenant may give written notice to Landlord prior to expiration of the
Expansion Option Period that Xxxxxx has elected to exercise the Option with
respect to the Adjacent Land (the "TENANT PURCHASE NOTICE"), and purchase the
Adjacent Land pursuant thereto, and Landlord shall assign to Tenant and Tenant
shall assume the Option Agreement effective as of the date of delivery of such
written notice from Tenant to Landlord. If at any time following Tenant's
acquisition of the Adjacent Land Tenant wishes to expand its activities at the
Project onto the Adjacent Land, or Tenant otherwise wishes to construct
improvements on the Land to be used by Tenant or its designees in conjunction
with Tenant's activities at the Project, Landlord shall have the option to
purchase the Adjacent Land from Tenant and provide such improvements and lease
such improvements to Tenant on the terms described in this ARTICLE 18.
18.7 INDEMNITY. Tenant shall indemnify, hold harmless, and, at Landlord's
option (with such attorneys as Landlord may approve in advance and in writing),
defend Landlord, Landlord's mortgagees and other lien holders, and the other
Landlord Indemnified Parties, from and against any and all claims, demands,
actions, causes of action, losses, costs, damages, fees and expenses incurred or
asserted against, relating to, xxxxxxx from or in connection with, or associated
in any way with the Option, or the Option Agreement or the Adjacent Land during
the period prior to Landlord's assignment of the Option or termination of the
Option Agreement (including, without limitation, any amounts related to
Landlord's exercise of its Option in connection with a Landlord Acceptance).
18.8 ASSIGNMENT BY TENANT. Notwithstanding anything set forth herein, this
ARTICLE 18 and Xxxxxx's rights hereunder shall immediately and automatically
terminate upon any assignment by Tenant under this Lease.
ARTICLE 19: TRANSFERS BY LANDLORD
----------------------------------
In the event of a sale or conveyance by Landlord of the Project, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Xxxxxx, and in such event Tenant agrees to look solely to the responsibility of
the successor in interests of Landlord in and to this Lease. This Lease shall
not be affected by any such sale and Xxxxxx agrees to attorn to the purchaser or
assignee.
34
ARTICLE 20: FEE-IN-LIEU TRANSACTION
------------------------------------
20.1 FEE-IN-LIEU TRANSACTION. Upon Xxxxxx's written request, and upon
compliance with the conditions set forth in this ARTICLE 20, Landlord agrees
that it will convey title to the Project to York County, South Carolina (the
"COUNTY") in order to facilitate qualification of the Project for payment of a
negotiated fee in lieu of ad valorem property taxes ("FEE-IN-LIEU TRANSACTION"),
and to otherwise cooperate with Tenant in connection with such Fee-In-Lieu
Transaction. Tenant agrees to pay all reasonable expenses in connection
therewith (including, without limitation, any sum required to be paid for
Landlord to repurchase the Project). Upon such conveyance of title by the
Landlord to the County, this Lease will automatically convert to a sub-lease
arrangement between Landlord and Tenant without the necessity of further
amendments hereto, and this Lease shall be deemed to be modified accordingly in
all aspects necessary to permit such treatment. Landlord shall remain
responsible as Landlord, except that Landlord shall not be liable for actions
suffered or taken by the County over which Landlord has or had no control, which
actions or failure would otherwise constitute a default under this Lease.
Tenant acknowledges that any conveyance to the County to facilitate a
Fee-In-Lieu Transaction will be for the sole benefit of Tenant and that all risk
of loss or damage to Tenant or Landlord as a result of the Fee-In-Lieu
Transaction shall be borne solely by Xxxxxx and not by Landlord. If Landlord is
unable to perform, or is delayed in performing, its obligations under this Lease
because of the Fee-In-Lieu Transaction or any limitations, obligations or duties
imposed on Landlord in connection therewith, Landlord's failure of performance
hereunder shall not constitute a Landlord default under this Lease.
20.2 CONDITIONS OF CONVEYANCE TO COUNTY. The following shall be conditions
to Landlord conveying title to the Project to the County or otherwise
participating in the Fee-In-Lieu Transaction:
(a) No Material Event of Default or Bankruptcy Event shall have
occurred and be continuing;
(b) Tenant shall have provided to Landlord such reasonable assurances
as Landlord shall require as to Landlord's right to repurchase the Project from
the County for a nominal sum at any time during the term of the Lease, free and
clear of any liens or encumbrances of any nature (with the exception of those
liens or encumbrances existing at the time of such conveyance to the County or
created by Landlord), which assurances may include, but shall not be limited to,
a favorable opinion of counsel by Xxxxxx's attorney, as well as a mortgage and
security agreement, which shall be in form and content reasonably satisfactory
to the County, and UCC-1 financing statement from the County to Landlord to
secure the County's reconveyance obligations under the Lease between the County,
as landlord, and Landlord, as tenant.
(c) Tenant shall have paid or agreed to pay all costs, fees and
expenses incurred or to be incurred by Landlord in connection with the
Fee-In-Lieu Transaction including, without limitation Landlord's reasonable
attorney's fees and expenses, recording fees and any additional title policy
premiums (for title insurance issued at the time Landlord exercises its option
to repurchase the Project or otherwise) or title search fees in connection
therewith.
(d) Tenant shall have provided to Landlord either an endorsement to
the existing owner's title insurance policy of Landlord or a new policy insuring
Landlord's leasehold interest, and Tenant shall further be responsible for all
costs associated with Landlord obtaining owner's title insurance covering
Xxxxxxxx's fee simple ownership interest upon the termination of the Fee-In-Lieu
Transaction.
35
20.3 INDEMNITY FOR FEE-IN-LIEU TRANSACTIONS. Tenant shall indemnify, hold
harmless, and, at Landlord's option (with such attorneys as Landlord may
reasonably approve in advance and in writing), defend the Landlord Indemnified
Parties from and against any and all Losses incurred or asserted against,
relating to, arising from or in connection with, or associated in any way with
the Fee-in-Lieu Transaction, but excluding amounts incurred by Landlord and
which result primarily from (a) a violation by Landlord of the first sentence of
SECTION 20.4 of this Lease, or (b) the wrongful actions of Landlord or any
subsequent owner or tenant of the Project after the Lease Term (but excluding
Landlord's exercise of its repurchase option thereunder); the provisions of this
indemnity and hold harmless shall survive expiration or termination of this
Lease.
20.4 LANDLORD'S RIGHT TO REPURCHASE. Xxxxxxxx agrees that it will not
during the Lease Term exercise its option to repurchase the Project pursuant to
the lease agreement to be entered into between Landlord and the County
evidencing the Fee-in-Lieu Transaction without the prior written consent of
Tenant unless such repurchase is necessary, in Landlord's reasonable judgment,
to protect Xxxxxxxx's investment in the Project, and Landlord shall indemnify
and hold harmless Tenant from any Tax Increase suffered by Tenant during the
remainder of the Lease Term and resulting directly and solely from Landlord's
repurchase of the Project in violation of the foregoing clause. Landlord shall
notify Tenant of its intent to so repurchase prior to the consummation of such
repurchase by Landlord. For purposes of this SECTION 20.4, "TAX INCREASE" shall
equal the amount by which ordinary and customary ad valorem real and personal
property taxes with respect to the Project exceed the total amount of any
Fee-In-Lieu Transaction payments and ad valorem real and personal property taxes
payable by Tenant pursuant to a Fee-In-Lieu Transaction with the County with
respect to the Project, adjusted to give effect to any credits or abatement
relief available to Tenant with respect to the Project.
ARTICLE 21: MISCELLANEOUS
---------------------------
21.1 LIMITATION. Tenant shall look solely to Xxxxxxxx's interest in the
Project for recovery of any judgment from Landlord. Landlord, or if Landlord is
a partnership, its partners whether general or limited, or if it is a
corporation, its directors, officers or shareholders, or if Landlord is a trust,
its trustees, officers and employees, or if Landlord is a limited liability
company or other entity, its members or managers or owners, shall never be
personally liable for any such judgment. Any lien obtained to enforce any such
judgment and any levy of execution thereon shall be subject and subordinate to
any lien, mortgage or deed of trust on the Project. Tenant acknowledges that no
trustee, shareholder, officer, employee or agent of Landlord shall be held for
any personal liability, jointly or severally, for any obligation of or claim
against Landlord.
21.2 QUIET ENJOYMENT. Landlord represents that it has full right and
authority to enter into this Lease and that Tenant, upon paying the Rent and
performing its other covenants and agreements herein set forth, shall peaceably
and quietly have, hold and enjoy the Project for the Term hereof without
hindrance or molestation from Landlord, subject to the terms and provisions of
this Lease.
21.3 WAIVER. No waiver of any provision of this Lease shall be implied by
(a) any failure of either party to insist in any instance on the strict keeping,
observance or performance of any covenant or agreement contained in this Lease
or to exercise any election contained in this Lease, or (b) any failure of
either party to enforce any remedy on account of the violation of such
provision, even if such violation shall continue or be repeated subsequently,
any waiver by either party of any provision of this Lease may only be in
writing, and no express waiver shall affect any provision other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease
36
Term or of Xxxxxx's right of possession hereunder or after the giving of any
notice shall reinstate, continue or extend the Lease Term or affect any notice
given Tenant prior to the receipt of such monies, it being agreed that after the
Project, Landlord may receive and collect any Rent due, and the payment of said
Rent shall not waiver or affect said notice, suit or judgment.
21.4 NOTICES. Each provision of this Lease or of any Governmental
Requirements with reference to the sending, mailing or delivery of any notice or
the making of any payment by Landlord or Tenant to the other shall be deemed to
be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address set forth in the
Basic Lease Information, or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith, but Landlord
shall in any event maintain at all times during the Lease Term wire transfer
instructions for payments of Rent under this Lease. Tenant's obligation to pay
Rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such Rent and other amounts have been actually
received by Landlord.
(b) All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in writing
and shall be deemed to be effective and received (i) if by hand delivery, telex,
telecopy or other facsimile transmission, on the day and at the time on which
delivered to such party at the address or fax numbers specified in the Basic
Lease Information; (ii) if by mail, on the second business day following the day
upon which it is deposited, postage prepaid, in the United States, registered or
certified mail, return receipt requested, addressed to such party at the address
specified in the Basic Lease Information; or (iii) if by Federal Express or
other reputable express mail service, on the next business day following the
delivery to such express mail service, addressed to such party at the address
set forth in the Basic Lease Information. Any party may change its address for
purposes of this Lease by giving fifteen (15) days written notice of such change
to the other parties pursuant to this SECTION 21.4.
21.5 ATTORNEYS' FEES. In the event of any litigation or arbitration
proceeding between the parties with respect to this Lease, then all costs and
expenses including, without limitation, all reasonable professional fees such as
appraisers', accountants' and attorneys' fees, incurred by the prevailing party
therein shall be paid or reimbursed by the other party.
21.6 SUCCESSORS AND ASSIGNS. Subject to ARTICLE 19 hereof, this Lease
shall be binding upon and inure to the benefit of Landlord, its successors and
assigns, and shall be binding upon and inure to the benefit of Tenant, its
successors, and to the extent assignment may be approved by Landlord hereunder,
Xxxxxx's assigns.
21.7 FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not be liable or responsible for,
and there shall be excluded from the computation for any such period of time,
any delays due to strike, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any other causes of any
kind whatsoever which are beyond the control of Landlord.
21.8 REFERENCE. The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and their and each of their
respective successors, executors, administrators and permitted assigns,
according to the context hereof.
37
21.9 TIME OF THE ESSENCE. Time is of the essence regarding this Lease and
all of its provisions.
21.10 GOVERNING LAW. This Lease shall in all respects be governed by
the laws of the State of South Carolina.
21.11 INTEGRATION. This Lease, together with its exhibits, contains
all the agreements of the parties hereto and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this Lease
and its exhibits. All references to this Lease shall include all exhibits
attached hereto.
21.12 MODIFICATIONS. This Lease may not be modified except by a
written instrument by the parties hereto.
21.13 SEVERABILITY. If, for any reason whatsoever, any of the
provisions hereof shall be unenforceable or ineffective, all of the other
provisions shall be and remain in full force and effect.
21.14 COUNTERPARTS. This Lease may be executed on one or more
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one agreement.
21.15 WAIVER OF CERTAIN DAMAGES. Except with respect to Tenant's
obligations under SECTION 3.6. hereof, in no event shall either Landlord or
Tenant be liable to the other for any punitive, exemplary or consequential
damages, and each of Landlord and Tenant hereby waives and releases any right or
claim such party may have to same.
21.16 DAYS. All references in this Lease (but excluding ARTICLE 16
hereof) to less than "ten (10) days" shall mean business days. All references
in the Lease to "month" or "months" shall be deemed to include the actual number
of days in such actual month or months.
21.17 LEASE EFFECTIVE DATE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation or option
for lease, and it is not effective as a lease or otherwise until execution by
Landlord and Tenant.
21.18 MEMORANDUM OF LEASE. Concurrently with the execution of this
Lease, Landlord and Tenant shall execute a Memorandum of Lease in the form
attached hereto as EXHIBIT F, and Tenant may record such Memorandum of Lease in
the Office of the Clerk of Court or the Register of Deeds, as applicable, for
York County, South Carolina.
21.19 CAPTIONS. The captions of articles, sections and subsections
herein are for convenience only and shall not be deemed to limit, construe,
affect or alter the meaning of such articles, sections and subsections.
21.20 JOINT AND SEVERAL. If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease are joint and several.
21.21 SUBMISSION OF LEASE. Submission of this Lease for examination or
signature by Tenant does not constitute a reservation of or an option for lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
38
21.22 BROKERS. Landlord and Tenant hereby warrant to each other that
they have had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, excepting only CB Commercial Real Estate
Group, Inc., and Xxxxx Xxx (together, the "BROKERS") and that they know of no
real estate broker or agent (including any Broker) who is entitled to a
commission in connection with this Lease. Each party agrees to indemnify and
defend the other party against and hold the other party harmless from any and
all claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including without limitation reasonable attorneys' fees) with respect
to any leasing commission or equivalent compensation alleged to be owing on
account of the indemnifying party's dealings with any real estate broker or
agent.
21.23 CONFIDENTIALITY. Landlord agrees to use reasonable efforts to
avoid disclosure by Landlord of Tenant's proprietary processes and operations at
the Project or Tenant's financial information, except such information as is
generally available to the public, and specifically excluding the plans and
specifications for the Project or any improvements or alterations thereto,
although the foregoing shall not restrict Landlord from disclosing such
information with the prior written consent of Tenant, (a) upon the order or any
official request of or pursuant to the rules and regulations of any Governmental
Authority, or (b) as otherwise required by law; provided, however, that Landlord
may disclose such financial information to prospective purchasers and lenders so
long as such prospective purchasers and lenders agree to generally adhere to the
same confidentiality standards.
21.24 ALTERNATE DISPUTE REGULATION. Notwithstanding anything set forth
herein to the contrary, if a dispute, controversy or claim (whether based upon
contract, tort, statute, common law or otherwise) (collectively, a "DISPUTE")
arises from or relates directly or indirectly to the subject matter of this
Lease, and if the Dispute cannot be settled through direct discussions, the
parties shall first endeavor to resolve the Dispute by participating in a
mediation administered by the American Arbitration Association (the "AAA") under
its Commercial Mediation Rules before resorting to arbitration. Thereafter, any
unresolved Dispute shall be settled by binding arbitration administered by the
AAA in accordance with its Commercial Arbitration Rules and judgment on the
award rendered by the arbitrator, after the review rights set forth below have
been exhausted, may be entered in any court having jurisdiction. The
arbitration proceedings shall be conducted in Charlotte, North Carolina, on an
expedited basis before a neutral arbitrator who is a member of the Bar of the
State of South Carolina, and has been actively engaged in the practice of law
for at least fifteen (15) years, specializing in commercial transactions with
substantial experience in the subject matter of this Lease. Any attorney who
serves as an arbitrator shall be compensated at a rate equal to his or her
current regular hourly billing rate unless the AAA is able to arrange with the
parties and the arbitrator to agree otherwise. Upon the request of either
party, the arbitrator's award shall include findings of fact and conclusions of
law provided that such findings may be in summary form. Either party may seek
review of the arbitrator's award before an arbitration review panel comprised of
three (3) arbitrators qualified in the same manner as the initial arbitrator (as
set forth above) by submitting a written request to the AAA. The right of
review shall be deemed waived unless requested in writing within ten (10) days
of the delivery of the initial arbitrator's award. The arbitration review panel
shall be entitled to review all findings of fact and conclusions of law in
whatever manner it deems appropriate and may modify the award of the initial
arbitrator in its discretion. Unless otherwise deemed appropriate by the
arbitrator(s), the prevailing party shall be entitled to an award of all
reasonable out-of-pocket costs and expenses (including attorneys' and
arbitrators' fees) related to the entire arbitration proceeding (including
review if applicable).
21.25 CONTRACTORS' WARRANTIES AND GUARANTIES. Notwithstanding anything
to the contrary set forth in that certain Build-to-Suit Purchase Agreement dated
as of October 14, 1997, between Crescent Resources, Inc., as seller, and Tenant,
as purchaser, during the Term, Tenant may unilaterally exercise its rights under
any and all warranties, guaranties and bonds issued in connection with
construction of the
39
Project, provided that Tenant must give Landlord at least ten (10) business
days' notice before Tenant commences any legal action or proceeding to enforce
such rights. The foregoing shall not prohibit Landlord from participating in
any action or proceeding brought by Tenant to enforce such rights.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
LANDLORD:
TENANT:
MIT UNSECURED, L.P., XXXXXX HEALTH PRODUCTS INC.,
a California limited partnership a Delaware corporation
By: MIT UNSECURED, INC., By: /s/
a California corporation, --------------------------------
the general partner Name:
------------------------------
Title:
-----------------------------
By: /s/
------------------------
Xxxxxxx X. Xxxxx,
Vice President
40
EXHIBIT A
---------
Legal Description of the Land
and Easements
41
EXHIBIT B
---------
General Outline of the Building and Project
42
EXHIBIT C
---------
Legal Description of the Adjacent Land
and Easement
43
EXHIBIT D
---------
Rules and Regulations
RULES AND REGULATIONS
1. Tenant shall not keep animals or birds within the Project, and shall
not bring bicycles, motorcycles or other vehicles into areas not designated as
authorized for same.
2. Tenant shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
3. Tenant assumes all risks from theft or vandalism.
4. Except for designated truck parking and truck loading areas, parking
areas shall be used only for daily parking of vehicles.
5. The routine maintenance (i.e., except in the event of an emergency or
if a vehicle is disabled or unsafe), washing, waxing or cleaning of passenger
vehicles in the parking structure or Common Area is prohibited.
44
EXHIBIT E
---------
FORM OF TENANT'S ESTOPPEL CERTIFICATE
The undersigned as Tenant under that certain Net Lease (the "LEASE") made
and entered into as of ________________, 19___, and between MIT Unsecured, L.P.,
a California limited partnership, as Landlord, and the undersigned as Tenant,
for the Project located at _____________________________, certifies as follows:
1. Attached hereto as EXHIBIT A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in
EXHIBIT A represent the entire agreement between the parties as to the Project.
2. The undersigned has commenced occupancy of the Project described in
the Lease, and currently occupies the Project.
3. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in EXHIBIT A.
4. Tenant has not transferred, assigned, or sublet any portion of the
Project nor entered into any license or concession agreements with respect
thereto except as follows:
5. The Lease Term expires on ___________________. Tenant has not
exercised any right to extend for any Extension Term except as follows:
______________________________________.
6. All conditions to Tenant's obligation to perform under the Lease have
been satisfied and, to the best knowledge of the undersigned, Landlord is not in
default thereunder.
7. No rental has been paid in advance and no security has been deposited
with Landlord except as provided in the Lease.
8. The undersigned has not exercised any of its rights under ARTICLE 17
or ARTICLE 18 of the Lease except as follows:
___________________________________________.
9. All monthly installments of Base Rent have been paid when due through
____________________. The current monthly installment of Scheduled Base Rent is
$________________.
10. The undersigned acknowledges that this Estoppel Certificate may be
delivered to Landlord's prospective mortgagee, or a prospective purchaser, and
acknowledges that it recognizes that if same is done, said mortgagee,
prospective mortgagee, or prospective purchaser will be relying upon the
statements contained herein in making the loan or acquiring the Project, and in
accepting an assignment of the Lease as collateral security, and that receipt by
it of this certificate is a condition of making of the loan or acquisition of
the Project.
11. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in the
state in which the Project is located and that Tenant has full right and
45
authority to execute and deliver this Estoppel Certificate and that each person
signing on behalf of Xxxxxx is authorized to do so.
Executed at _______________ on the _____ day of _____________, 19___.
"Tenant"
XXXXXX HEALTH PRODUCTS INC.,
a Delaware corporation
By:______________________________________
Its:________________________________
46
EXHIBIT F
---------
FORM OF MEMORANDUM OF LEASE
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Xxxxxx Health Products Inc.
000 Xxxx 000xx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Senior Vice President of Operations
--------------------------------------------------------------------------------
MEMORANDUM OF LEASE
-------------------
THIS MEMORANDUM OF LEASE (this "MEMORANDUM") is entered into as of
______________, ____, by and between MIT UNSECURED, L.P., a California limited
partnership ("LANDLORD"), and XXXXXX HEALTH PRODUCTS INC., a Delaware
corporation ("TENANT").
1. TERMS AND PROVISIONS. Landlord leases to Tenant, and Tenant leases
from Landlord, certain premises (the "PROJECT") to be located on the real
property (the "LAND") described on EXHIBIT A attached hereto on the provisions
of that certain Net Lease between the parties hereto, dated of even date (the
"LEASE"). The provisions of the Lease are incorporated herein.
2. TERM. The initial term of the Lease is fifteen (15) years. Tenant
also has two (2) options to extend the Lease for a period of five (5) years
each.
3. PROVISIONS BINDING ON PARTIES. The provisions of the Lease to be
performed by Landlord or Tenant, whether affirmative or negative in nature, are
intended to and shall bind or benefit the respective parties and their assigns
or successors, as applicable, at all times.
4. LIEN FOR RENT. The Lease includes a provision wherein Xxxxxx has
granted to Landlord a lien and security interest in Xxxxxx's property (together
with the proceeds from the disposition of those items) as security for payment
of all Rent and other sums agreed to be paid by Xxxxxx in the Lease. This lien
and security interest is subordinate to any security interest or conditional
sales contract in favor of a third party not an affiliate of Tenant.
5. RIGHT OF FIRST OFFER AND EXPANSION RIGHTS. The Lease includes a right
of first offer in favor of Tenant and certain provisions regarding Tenant's
expansion into adjacent land upon which Landlord has an option, which provisions
may result in (among other things) an amendment of the Lease to cover the
expansion project or Xxxxxx's purchase of the Project.
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE Section 15-48-10 ET SEQ.,
AS AMENDED FROM TIME TO TIME.
47
6. PURPOSE OF MEMORANDUM OF LEASE. This Memorandum is prepared solely
for purposes of recordation, and in no way modifies the provisions of the Lease.
"Landlord"
Witnesses: MIT UNSECURED, L.P.,
a California limited partnership,
_________________________ By: MIT UNSECURED, INC.,
a California corporation,
_________________________ the general partner
By:
Xxxxxxx X. Xxxxx,
Vice President
"Tenant"
XXXXXX HEALTH PRODUCTS INC.,
a Delaware corporation
Witnesses: By:_______________________________
_________________________ Name:_____________________________
Title:____________________________
_________________________
48
STATE OF __________________________)
) ss.
COUNTY OF _________________________)
On _______________________, before me, _______________________, a Notary
Public in and for said state, personally appeared XXXXXXX X. XXXXX, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature
on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
STATE OF __________________________)
) ss.
COUNTY OF _________________________)
On _______________________, before me, _______________________, a Notary
Public in and for said state, personally appeared ____________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
49
EXHIBIT A
---------
to
FORM OF MEMORANDUM OF LEASE
DESCRIPTION OF THE LAND
AND EASEMENT
50
EXHIBIT G
---------
[Intentionally Deleted]
51
EXHIBIT H
---------
SPECIAL IMPROVEMENTS AMORTIZATION SCHEDULE
Exhibit H
Special Improvements Amortization Schedule
Subject to any adjustments to the beginning balance per Section 4.4, the
unamortized principal balance to the Amortized Improvement Repayment shall be
as follows for each month after receipt of Base Rent due through the first
of that month. To the extent the beginning Amortized Improvement Repayment
balance is reduced below $4,825,000 pursuant to Paragraph 4.4, then each
balance in the schedule below shall be reduced by multiplying each figure by
the ratio of the adjusted beginning balance to $4,825,000.
-------- ------------ ------- ------------- ------- ------------- ------- --------------
Unamortized Unamortized Unamortized Unamortized
Month Balance Month Balance Month Balance Month Balance
-------- ------------ ------- ------------- ------- ------------- ------- --------------
1 $4,775,143 46 $4,117,294 91 $3,180,833 136 $1,847,763
-------- ------------ ------- ------------- ------- ------------- ------- --------------
2 4,762,906 47 4,099,874 92 3,156,035 137 1812463
-------- ------------ ------- ------------- ------- ------------- ------- --------------
3 4,750,572 48 4,082,317 93 3,131,042 138 1776885
-------- ------------ ------- ------------- ------- ------------- ------- --------------
4 4,738,141 49 4,064,621 94 3,105,853 139 1741027
-------- ------------ ------- ------------- ------- ------------- ------- --------------
5 4,725,613 50 4,046,786 95 3,080,464 140 1704886
-------- ------------ ------- ------------- ------- ------------- ------- --------------
6 4,712,985 51 4,028,811 96 3,054,876 141 1668461
-------- ------------ ------- ------------- ------- ------------- ------- --------------
7 4,700,258 52 4,010,694 97 3,029,086 142 1631748
-------- ------------ ------- ------------- ------- ------------- ------- --------------
8 4,687,431 53 3,992,434 98 3,003,093 143 1594747
-------- ------------ ------- ------------- ------- ------------- ------- --------------
9 4,674,503 54 3,974,031 99 2,976,895 144 1557453
-------- ------------ ------- ------------- ------- ------------- ------- --------------
10 4,661,473 55 3,955,482 100 2,950,491 145 1519866
-------- ------------ ------- ------------- ------- ------------- ------- --------------
11 4,648,340 56 3,936,787 101 2,923,878 146 1481983
-------- ------------ ------- ------------- ------- ------------- ------- --------------
12 4,635,104 57 3,917,945 102 2,897,056 147 1443802
-------- ------------ ------- ------------- ------- ------------- ------- --------------
52
-------- ------------ ------- ------------- ------- ------------- ------- --------------
13 4,621,763 58 3,898,955 103 2,870,023 148 1405319
-------- ------------ ------- ------------- ------- ------------- ------- --------------
14 4,608,318 59 3,879,815 104 2,842,777 149 1366534
-------- ------------ ------- ------------- ------- ------------- ------- --------------
15 4,594,766 60 3,860,524 105 2,815,316 150 1327443
-------- ------------ ------- ------------- ------- ------------- ------- --------------
16 4,581,108 61 3,841,081 106 2,787,639 151 1288044
-------- ------------ ------- ------------- ------- ------------- ------- --------------
17 4,567,342 62 3,821,485 107 2,759,743 152 1248334
-------- ------------ ------- ------------- ------- ------------- ------- --------------
18 4,553,468 63 3,801,735 108 2,731,628 153 1208312
-------- ------------ ------- ------------- ------- ------------- ------- --------------
19 4,539,484 64 3,781,829 109 2,703,292 154 1167974
-------- ------------ ------- ------------- ------- ------------- ------- --------------
20 4,525,390 65 3,761,766 110 2,674,732 155 1127319
-------- ------------ ------- ------------- ------- ------------- ------- --------------
21 4,511,185 66 3,741,545 111 2,645,947 156 1086343
-------- ------------ ------- ------------- ------- ------------- ------- --------------
22 4,496,869 67 3,721,165 112 2,616,936 157 1045045
-------- ------------ ------- ------------- ------- ------------- ------- --------------
23 4,482,439 68 3,700,624 113 2,587,696 158 1003421
-------- ------------ ------- ------------- ------- ------------- ------- --------------
24 4,467,896 69 3,679,922 114 2,558,225 159 961469
-------- ------------ ------- ------------- ------- ------------- ------- --------------
25 4,453,238 70 3,659,056 115 2,528,522 160 919187
-------- ------------ ------- ------------- ------- ------------- ------- --------------
26 4,438,465 71 3,638,026 116 2,498,586 161 876571
-------- ------------ ------- ------------- ------- ------------- ------- --------------
27 4,423,575 72 3,616,830 117 2,468,413 162 833620
-------- ------------ ------- ------------- ------- ------------- ------- --------------
28 4,408,568 73 3,595,467 118 2,438,003 163 790330
-------- ------------ ------- ------------- ------- ------------- ------- --------------
29 4,393,443 74 3,573,936 119 2,407,353 164 746700
-------- ------------ ------- ------------- ------- ------------- ------- --------------
30 4,378,199 75 3,552,236 120 2,376,462 165 702726
-------- ------------ ------- ------------- ------- ------------- ------- --------------
31 4,362,834 76 3,530,364 121 2,345,327 166 658405
-------- ------------ ------- ------------- ------- ------------- ------- --------------
32 4,347,349 77 3,508,320 122 2,313,947 167 613735
-------- ------------ ------- ------------- ------- ------------- ------- --------------
33 4,331,741 78 3,486,103 123 2,282,320 168 568713
-------- ------------ ------- ------------- ------- ------------- ------- --------------
34 4,316,011 79 3,463,710 124 2,250,444 169 523337
-------- ------------ ------- ------------- ------- ------------- ------- --------------
35 4,300,156 80 3,441,141 125 2,218,317 170 477603
-------- ------------ ------- ------------- ------- ------------- ------- --------------
36 4,284,177 81 3,418,394 126 2,185,936 171 431508
-------- ------------ ------- ------------- ------- ------------- ------- --------------
37 4,268,072 82 3,395,468 127 2,153,300 172 385051
-------- ------------ ------- ------------- ------- ------------- ------- --------------
38 4,251,840 83 3,372,362 128 2,120,408 173 338227
-------- ------------ ------- ------------- ------- ------------- ------- --------------
39 4,235,480 84 3,349,073 129 2,087,256 174 291035
-------- ------------ ------- ------------- ------- ------------- ------- --------------
53
-------- ------------ ------- ------------- ------- ------------- ------- --------------
40 4,218,991 85 3,325,601 130 2,053,843 175 243471
-------- ------------ ------- ------------- ------- ------------- ------- --------------
41 4,202,372 86 3,301,944 131 2,020,166 176 195532
-------- ------------ ------- ------------- ------- ------------- ------- --------------
42 4,185,622 87 3,278,100 132 1,986,225 177 147215
-------- ------------ ------- ------------- ------- ------------- ------- --------------
43 4,168,741 88 3,254,069 133 1,952,016 178 98518
-------- ------------ ------- ------------- ------- ------------- ------- --------------
44 4,151,726 89 3,229,848 134 1,917,537 179 49437
-------- ------------ ------- ------------- ------- ------------- ------- --------------
45 4,134,578 90 3,205,437 135 1,882,787 180 nm
-------- ------------ ------- ------------- ------- ------------- ------- --------------
54
EXHIBIT I
---------
NON-OFFICE MEZZANINES
55
