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EXHIBIT 10.19
Approximately 72,520 Rentable Square Feet
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
LEASE
THIS LEASE dated as of January 26th, 1993, by and between STATE OF
WISCONSIN INVESTMENT BOARD ("Landlord"), and ECC INTERNATIONAL CORP., a
Delaware Corporation (hereinafter referred to as "Tenant").
WITNESSETH:
1. Premises and Term. In consideration of the obligation of
Tenant to pay rent as herein provided, and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby demises and leases to Tenant,
and Tenant hereby leases from Landlord certain premises (the "Premises") as
shown on Exhibit A hereto, which Premises are part of a building (the
"Building") commonly known as Orlando Central Park VIII, and which Building is
situated within the County of Orange, State of Florida, on the land described
on Exhibit B hereto and incorporated herein by reference (the "Land") (the
Land, Building and all other improvements located on the Land, together with
all easements and appurtenances belonging thereto, are hereinafter collectively
referred to as the "Property").
TO HAVE AND TO HOLD the same for a term (the "Lease Term")
commencing on the Commencement Date, as hereinafter defined, and ending on the
date that is seven (7) years and zero (0) months thereafter (the "Termination
Date"), provided, however, that, in the event the Commencement Date is a date
other than the first day of a calendar month, said term shall extend for said
number of years and months in addition to the remainder of the calendar month
following the Commencement Date and the Termination Date shall be adjusted
accordingly.
The Commencement Date shall be ninety (90) days from the date that the
Lease has been fully executed, regardless of the completion of the Landlord's
Work as defined in Exhibit "C" and whether or not a Certificate of Occupancy
has been issued.
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(a) Notwithstanding the foregoing, Tenant shall have the one-time
right to terminate this Lease as of the last day of the sixtieth (60th) month
of the Lease Term by providing written notice of termination to Landlord no
later than the last day of the fifty-fourth (54th) month of the Lease Term,
subject to the following conditions precedent:
(i) Tenant shall not then be in default hereunder, and no default
shall occur thereafter.
(ii) Tenant shall not have theretofore assigned its Interest
hereunder nor sublet all or any portion of the Premises.
(iii) Tenant pays to Landlord, on or before the last day of the
fifty-fourth (54th) month of the Lease Term, the total amount
of the remaining unamortized value of the Landlord's
Contribution (as hereinafter defined), all leasing commissions
paid by Landlord in connection with the execution of this
Lease and seven (7) months' rent (i.e., $263,778.00) and all
other amounts due from Tenant until the end of the sixtieth
(60th) month.
(b) Tenant has permission to enter upon the Premises during the
period prior to the Commencement Date, such entry shall be in accordance with
(i) all the terms, covenants and conditions of the Lease, except the covenant
to pay Base Rental, and (ii) such other terms and conditions that Landlord may
require in connection with such entry.
2. Base Rent and Security Deposit.
(a) Tenant shall pay to Landlord throughout the Lease Term a base
annual rental of TWO HUNDRED FORTY-SIX THOUSAND FIVE HUNDRED SIXTY-FOUR AND
NO/100 DOLLARS ($246,564.00) per year plus any and all sales, use, transaction,
or comparable taxes applicable thereto. Said base annual rental (the "Base
Rental") shall be subject to adjustment as hereinafter provided in this Lease.
Any and all Base Rental, together with all taxes thereon, shall be due and
payable in advance on or before the first day of January of each year during
the Lease Term; provided, however, the Base Rental for the calendar year in
which this Lease is executed shall be payable in advance on or before the
Commencement Date of the Lease Term. It is expressly provided, however, that
so long as Tenant shall not be in default of its obligations under this Lease,
such Base Rental and the taxes thereon shall, for the convenience of Tenant, be
payable in equal monthly installments in advance, on or before the first day of
each calendar month during the Lease Term. The initial monthly installment
shall be due and payable on the date of Tenant's execution hereof. However,
upon a default by Tenant of any of its obligations hereunder, the Base Rental
for the balance of the then current calendar year of the Lease Term, together
with the aggregate of the Base Rental for the remainder of the calender years
of the Lease Term as provided herein below, shall be immediately due and
payable. If this Lease commences on a day other than the
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first day of the calendar month or ends on a day other than the last day of a
calendar month, the monthly rental for the fractional month shall be
appropriately prorated. Any sum payable hereunder other than Base Rental
(sometimes referred to herein as "Additional Rent") shall, unless otherwise
stated, be due on demand. Tenant shall pay Base Rental and Additional Rent
promptly when due without notice or demand therefor and without abatement,
deduction or set-off for any reason whatever.
(b) No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Base Rental or Additional Rent shall be deemed
to be other than a payment on account, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
provided in this lease or at law.
(c) Tenant recognizes that late payment of any rent or other sum
due hereunder from Tenant to Landlord will result in administrative expense to
Landlord, the extent of which additional expense is extremely difficult and
economically impractical to ascertain. Tenant therefor agrees that if rent or
any other payment due hereunder from Tenant to Landlord remains unpaid five (5)
days after the same is due, the amount of such unpaid rent or other payment
shall be increased by a late charge to be paid Landlord by Tenant in an amount
equal to five percent (5%) per month of the amount of the delinquent rent or
other payment. The amount of the late charge to be paid to Landlord by Tenant
for any particular month shall be computed on the aggregate amount of
delinquent rents and other payments, including all accrued late charges, then
outstanding. Failure to pay such amount within ten (10) days after demand
shall be deemed an event of default. The terms of this paragraph do not in any
way effect or limit Landlord's remedies pursuant to Paragraph 17 of this Lease
in the event said rent or other payment is unpaid after the date due.
(d) Landlord shall have the same right and remedies (including,
without limitation, the right to commence a summary proceeding) for a default
in the payment of Additional Rent as for a default in the payment of Base
Rental notwithstanding the fact that Tenant may not then also be in default in
the payment of Base Rental.
(e) Tenant agrees to deposit with Landlord on the date hereof the
sum of TWENTY-FOUR THOUSAND TWO HUNDRED THIRTY-THREE AND NO/100 DOLLARS
($24,233.00), which sum shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's covenants and obligations
under this Lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit or a measure of Landlord's damages in case of
Tenant's default. Upon the occurrence of any Event of Default (as defined in
Section 17 hereof) by Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein or provided by law, use such funds to the
extent necessary to made good any arrears of rent or other payments due Landlord
hereunder, and to pay or reimburse Landlord for any other damage, expense or
liability caused by or required to cure, such Event of Default; and Tenant shall
pay to Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. After termination of this Lease any remaining
balance of the security deposit shall be returned by Landlord to Tenant provided
all of Tenant's obligations under this Lease have been fulfilled. The security
deposit shall be transferred to any successor in interest to Landlord hereunder
and notice of such transfer given to Tenant within five (5) days after such
transfer. Upon such transfer and notice, the transferror shall no longer be
liable for the security but the transferee shall become liable.
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3. Use.
(a) The demised Premises shall be used only for the purpose of
manufacturing, receiving, storing, shipping and selling (other than retail)
products, materials and merchandise made and/or distributed by Tenant, and for
such other lawful purposes as may be incidental thereto. Outside storage,
including without limitation, trucks and other vehicles and the washing thereof
at any time, is prohibited without Landlord's written consent. Tenant shall at
its own cost and expense obtain any and all licenses, permits and other
governmental approvals necessary for any such use shall promptly deliver to
Landlord copies of such licenses, permits and governmental approvals upon
receipt thereof, and shall comply with the terms and conditions thereof. Tenant
shall comply with all governmental laws, ordinances and regulations applicable
to the use of the Premises, and Tenant's use of the common areas of the
Property, whether now or hereafter in force and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of violations in or upon, or connected with, the use of, the Premises, all at
Tenant's sole expense. Tenant shall promptly deliver to Landlord a copy of any
such notice of violation it receives. Tenant shall not permit any objectionable
or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building or unreasonably interfere
with their use of their respective Premises or the common areas of the Property
nor use the Premises or the common areas of the Property in a manner which would
impair the proper and economic maintenance, operation and repair of the
Property. Without Landlord's prior written consent, Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly inflammable. Tenant will not permit the Premises to be used
for any purpose or in any manner (including, without limitation, any method of
storage) which would render the insurance thereon void or cause the State Board
of Insurance authority to disallow any sprinkler credits. If any increase in
fire and extended coverage insurance premium paid by Landlord or other tenants
of the Building is caused by Tenant's use and occupancy of the Premises, or if
Tenant vacating the Premises and causes an increase in such premiums, then
Tenant shall pay as additional rent the amount of such increase to Landlord.
(b) Tenant shall not at any time use the Premises in a manner which
would violate the Notice of Restrictions, dated August 29, 1985 and recorded
on September 3, 1985 in Book 3683, page 2548 of the official records of Orange
County, executed by Orlando Central Park, Inc. (the "Notice of Restrictions").
Tenant acknowledges receipt of a copy of the Notice of Restrictions.
(c) Tenant agrees that the point pressure resulting from Tenant's
racking system, inventory, forklifts and equipment pertaining to Tenant's use
of the Premises shall not exceed allowable design floor loading of 3,000 pounds
per square inch for floor slabs on grade. Tenant shall be responsible to
provide steel plates, angles or channels as required to distribute floor
loading to building design loads. Tenant shall only use forklifts that have
rubber wheels or other wheels that will not damage floor slabs. Tenant shall
hold harmless Landlord from any loss, liability and expenses, both real and
alleged, arising out of such damage or repair caused by Tenant's negligence or
failure to comply with this paragraph and shall, at its sole cost and expense,
promptly repair any damage or injury to the floor slab and other parts of the
Building caused by Tenant and its employees, agents or invitees.
4. Taxes.
(a) As Additional Rent, Tenant agrees to pay monthly in advance
without demand, deduction or set-off, 1/12th of Tenant's Proportionate Share
(as defined in Paragraph 4(b)) of all taxes, assessments, and other
governmental charges of any kind and
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nature whatsoever unforeseen as well as foreseen, (including any tax, excise or
fee measured by or payable with respect to any rent, other than the taxes
described in paragraph (g) below) (collectively, "Taxes") lawfully levied or
assessed against the Building or the Property for the calendar year in which
such month occurs, subject or proration for any partial month during the term
of the Lease. Such payments shall initially be based on an estimate thereof
prepared by Landlord and delivered to Tenant, except if Landlord shall not
have delivered such a statement prior to the commencement of such year, such
payments shall be in an amount equal to the previous year's Taxes until
Landlord shall deliver such a statement. If Landlord's estimate of Taxes for
any calendar year is delivered after commencement thereof or if such estimate
is revised during such year, then the monthly payments described herein shall
be appropriately adjusted and with respect to any payments previously made, if
there be any deficiency, Tenant shall pay Landlord the amount thereof within
twenty (20) days after demand thereof and if there shall be an overpayment,
then (provided Tenant is not in default under this Lease) Tenant shall be
forwarded the difference within twenty (20) days or the difference shall be
credited against Tenant's next rent payment coming due hereunder.
Notwithstanding the foregoing, Tenant's payments shall be calculated and paid
in such a manner so that Landlord shall have received Tenant's Proportionate
Share of any installment of Taxes not less than thirty (30) days prior to the
date such installment of Taxes is due to the applicable governmental
authority. Within one hundred twenty (120) days after the end of each calendar
year or as soon thereafter as practical, Landlord shall deliver to Tenant a
statement of Taxes for the year just ended, accompanied by a computation of
basic tax cost adjustment. If such statement shows that the aggregate monthly
tax payments paid for such year by Tenant is less than Tenant's Proportionate
Share of Taxes as set forth in such statement, then Tenant shall pay the
difference within twenty (20) days after receipt of such statement. If such
statement shows that Tenant's aggregate monthly tax payments for such year
exceed Tenant's Proportionate Share of Taxes as set forth in such statement,
then (provided Tenant is not in default under this Lease) Tenant shall be
forwarded the difference within twenty (20) days or the difference shall be
credited against Tenant's next rent payment coming due hereunder. If this
Lease has been terminated or the term hereof has expired prior to the date of
such statement, then the adjustment for any deficiency or overpayment of Taxes
shall survive the termination and shall be paid by the appropriate party
within twenty (20) days after the date of delivery of the statement. The
benefit of any discount for early payment (i.e., payment before the last day
such Taxes may be paid without being delinquent) of Taxes shall accrue solely
to the benefit of Landlord.
(b) Tenant's Proportionate Share, as used in this Lease, shall mean
a fraction, the numerator of which is the number of square feet contained in
the Premises and the denominator of which is the number of square feet
contained in the Building. The parties agree that the number of square feet
contained in the Premises is initially 72,520, the number of square feet
contained in the Building is 356,583, and Tenant's Proportionate Share is
initially 20.34%. To the best of Landlord's knowledge, Landlord warrants that
the aforementioned square footages are true and correct.
(c) If at any time during the term of this Lease, the present
method of taxation shall be changed so that in lieu of the whole or any part of
any Taxes levied or assessed against the Building or Property there shall be
levied, assessed or imposed on Landlord a tax, including a franchise, transfer,
capital stock or profit tax, assessment, levy or charge then all such taxes,
assessments, levies or charges, or the part thereof so measured or based, shall
be deemed to be included within the term "Taxes" for the purposes hereof.
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(d) The Landlord shall have the right to employ a tax consulting
firm to seek reduced assessments on the Building and the Land within the
applicable taxing jurisdiction and to attempt to assure a fair tax burden on
the Building and the Property within the applicable taxing jurisdiction.
Tenant shall pay to Landlord upon demand from time to time, as Additional Rent,
the amount of Tenant's Proportionate Share (as defined in subparagraph 4(b)
above) of the cost of such services.
(e) Tenant shall pay as Additional Rent all increases in Taxes
which may be attributable to additions or improvements to the Premises made by
Tenant or on Tenant's behalf. Payment shall be made by Tenant to Landlord
on the rent payment day next following the issuance of a xxxx therefor by
Landlord to Tenant.
(f) Any payment to be made pursuant to this Paragraph 4 with
respect to the real estate tax year in which this Lease commences or terminates
shall be prorated.
(g) The Landlord will receive monthly from Tenant the equivalent of
six percent (6%) of all amounts paid as rent or for any other payment or
reimbursement required herein. Such sum is paid to the State of Florida by the
Landlord under the Florida Sales Tax Statute. The Landlord receives no
monetary benefit from the collection and disbursement of this charge. Should
such tax rate change under the Florida Sales Tax Statute, the Landlord will
receive monthly from Tenant the amount reflective of appropriate changes.
5. Landlord's Repairs. Landlord shall at its expense maintain
only the roof, foundation and the structural soundness of the exterior walls of
the Building, in good repair, reasonable wear and tear excepted.
Notwithstanding the foregoing, Tenant shall repair and pay for any damage to
the roof, foundation and structural soundness of the exterior walls of the
Building and any other part of the Property caused by the negligence or willful
act of Tenant, or Tenant's employees, agents or invitees, or caused by Tenant's
default hereunder. The term "walls" as used herein shall not include windows,
glass or plate glass, doors, special store fronts or office entries. Tenant
shall immediately give Landlord written notice of defect or need for repairs,
after which Landlord shall have a reasonable opportunity to repair same or cure
such defect. Landlord's liability with respect to any defects, repairs or
maintenance for which Landlord is responsible under any of the provisions of
this Lease shall be limited to the cost of such repairs or maintenance or the
curing of such defect.
6. Tenant's Repair and Maintenance and Common Area Charges.
(a) Tenant shall at its own cost and expense keep and maintain all
parts of the Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all necessary
repairs and replacements, structural or nonstructural, including but not
limited to, windows, glass and plate glass, doors, any special office entry,
interior walls and finish work, floors and floor covering, downspouts,
gutters, heating and air conditioning systems, dock boards, truck doors, dock
bumpers, paving, plumbing work and fixtures. Tenant shall promptly make all
repairs to the Property resulting from the installation, use or operation of
its equipment and other personal property in the Property. Tenant shall not be
obligated to repair any damage to the Building caused by fire, tornado, or
other casualty covered by the insurance to be maintained by Landlord pursuant
to subparagraph 12(a) below, except that Tenant shall be obligated to repair
all wind damage to glass except with respect to tornado or hurricane damage.
(b) Tenant shall not damage any demising wall or disturb the
integrity and support provided by any demising wall and shall, at its sole cost
and expense, promptly repair any damage or injury to any demising wall caused
by Tenant or its employees, agents or invitees.
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(c) Except as otherwise provided herein, Landlord shall perform, with
respect to the exterior of the Building and the common areas of the Property,
the paving and landscape maintenance, exterior painting, common area lighting
maintenance, roof maintenance, general maintenance, and common sewage line
plumbing and shall pay any other similar expenses which are required to maintain
the same. Tenant shall pay as Additional Rent, monthly, in advance, 1/12 of
Tenant's Proportionate Share (as defined in subparagraph 4(b) above) of the cost
and expense of the care of the exterior of the Building and the grounds around
the Building ("Common Area Maintenance Charges"), including but not limited to
the mowing of grass, care of shrubs, general landscaping, paving and other
repairs and maintenance of parking area, driveway, curbs and gutters, lighting
of the grounds around the Building, Building exterior repainting, window
cleaning and common sewage line plumbing, (and of any common security services
or systems), subject to proration for any partial month during the term of the
Lease; provided, however, that if Tenant can be clearly identified as being
responsible for obstructions or stoppage of the common sanitary sewage line,
then Tenant shall pay the entire cost of clearing the same upon demand, as
Additional Rent. Such payments shall initially be based on an estimate
thereof prepared by Landlord and delivered to Tenant except if Landlord shall
not have delivered such a statement prior to the commencement of such year,
such payments shall be in an amount equal to the previous year's Common Area
Maintenance Charges until Landlord shall deliver such a statement. If
Landlord's estimate of Common Area Maintenance Charges for any calendar year is
delivered after commencement thereof or if such estimate is revised during such
year, then the monthly payments described herein shall be appropriately adjusted
and with respect to any payments previously made, if there be any deficiency,
Tenant shall pay Landlord the amount thereof within twenty (20) days after
demand therefor and if there shall be an overpayment, then (provided Tenant is
not in default under this Lease) Tenant shall be forwarded the difference
within twenty (20) days or the difference shall be credited against Tenant's
next rent payment coming due hereunder. Notwithstanding the foregoing, Tenant's
payments shall be calculated and paid in such a manner so that Landlord shall
have received Tenant's Proportionate Share of any installment of Common Area
Maintenance Charges not less than thirty (30) days prior to the date such
installment of Common Area Maintenance Charges is due. Within one hundred
twenty (120) days after the end of each calendar year or as soon thereafter as
practicable, Landlord shall deliver to Tenant a statement of Common Area
Maintenance Charges for the year just ended, accompanied by a computation of
basic common area maintenance cost adjustment. If such statement shows that the
aggregate monthly common area maintenance payments paid for such year by Tenant
is less than Tenant's Proportionate Share of Common Area Maintenance Charges as
set forth in such statement, then Tenant shall pay the difference within twenty
(20) days after receipt of such statement. If such statement shows that
Tenant's aggregate monthly common area maintenance payments for such year
exceed Tenant's Proportionate Share of Common Area Maintenance Charges as set
forth in such statement, then (provided Tenant is not in default under this
Lease) Tenant shall be forwarded the difference within twenty (20) days or the
difference shall be credited against Tenant's next rent payment coming due
hereunder. If this Lease has been terminated or the term hereof has expired
prior to the date of such statement, then the adjustment for any deficiency or
overpayment of Common Area Maintenance Charges shall survive the termination
and shall be paid by the appropriate party within twenty (20) days after the
date of delivery of the statement. In connection with the performance of the
work as described in this Paragraph 6(d), Landlord shall be allowed to charge a
ten percent (10%) administrative fee to be paid monthly.
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(d) Tenant and its employees, customers and licensees shall have the
exclusive right to use such parking areas, if any, as may be designated by
Landlord in writing, subject to reasonable rules and regulations as Landlord
may from time to time prescribe and subject to rights of ingress and egress of
other tenants. Landlord shall not be responsible for enforcing Tenant's
exclusive parking rights against any third parties. There have been no
exclusive parking rights given to Tenant with the signing of this Lease.
Landlord shall have no obligation to provide any guard service or to otherwise
patrol or secure the parking and other common areas. Landlord shall not be
liable for any injury to person or property or for loss or damage to any
vehicle or its contents on or about the parking areas. Tenant shall further
have the non-exclusive right to park automobiles and light trucks (but not heavy
duty trucks or tractors or trailers) on the property owned by Landlord and
described and depicted on Exhibit "E" attached hereto (the "Off-Site Parking
Area"). The Tenant's right to park automobiles and light trucks on the Off-Site
Parking Area shall be revocable by Landlord at any time upon delivery by
Landlord to Tenant of written notice of revocation. The commercial liability
insurance policy required to be maintained by Tenant hereunder shall include
coverage for Tenant's use of the Off-Site Parking Area, and all provisions
contained in this Lease regarding the use of the Premises and Tenant's Indemnity
of Landlord with respect thereto shall apply to Tenant's use of the Off-Site
Parking Area as fully as if the Off-Site Parking Area were a part of the
Property.
(e) In the event the Building is rail served, Landlord shall have the
right to coordinate any repairs and other maintenance of any rail tracks
serving the Building, and if Tenant uses such rail tracks, Tenant shall
reimburse Landlord from time to time upon demand, as additional rent, for a
share of the costs of such repairs and maintenance and any other sums specified
in any agreement to which Landlord is a party respecting such tracks, such a
share to be a fraction, the numerator of which is the number of square feet
contained in the Premises, and the denominator of which is the number of square
feet occupied by rail users in the building. Tenant agrees to sign a joint
maintenance agreement with the railroad company servicing the Premises, if
requested by the railroad company.
(f) Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services suggested
by the equipment manufacturer within the operation/maintenance manual and must
become effective (and a copy thereof delivered to Landlord) within thirty (30)
days of the date Tenant takes possession of the Premises. Tenant shall pay for
and have provided for its Premises regular termite and pest extermination
services and regular removal of trash and debris.
(g) Tenant agrees that no washing of any type (other than reasonable
restroom or kitchen washing) will take place on the Premises including the
truck apron, service court and parking areas.
7. Alterations. Tenant shall not make any alterations or improvements
to the Premises (including but not limited to roof and wall penetrations)
without prior written consent of Landlord, which consent may be granted or
denied in Landlord's sole discretion, and then only by contractors and in such
manner and with such materials as may be approved by Landlord in Landlord's
sole discretion. Notwithstanding the foregoing, Tenant may, without the
consent of Landlord, but at its own cost and expense and in a good workmanlike
manner erect such shelves, bins, machinery and trade fixtures as it may deem
advisable, without altering the basic character of the Building and without
overloading or damaging the Building and in each case complying
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with all applicable governmental laws, ordinances, regulations and other
requirements. All alterations, additions, improvements and partitions erected
by Tenant shall be and remain the property of Tenant during the term of this
Lease and Tenant shall, unless Landlord otherwise elects as hereinafter
provided, remove all alterations, additions, improvements and partitions
erected by Tenant and restore the Premises to their original condition by the
Termination Date or upon earlier vacating of the Premises; provided however,
that if Landlord so elects prior to termination of this Lease or upon earlier
vacating of the Premises, such alterations, additions, improvements and
partitions shall become the property of Landlord as of the Termination Date or
upon earlier vacating of the Premises and shall be delivered up to the Landlord
with the Premises. All shelves, bins, machinery and trade fixtures installed by
Tenant may be removed by Tenant prior to the Termination Date if Tenant so
elects, and shall be removed by the Termination Date or upon earlier vacating of
the Premises if required by Landlord; upon any such removal Tenant shall restore
the Premises to their original condition. All such removals and restoration
shall be accomplished in good workmanlike manner so as not to damage the
Building. Any such shelves, bins, machinery and trade fixtures or other property
of Tenant which shall remain in the Premises after the Termination Date, may, at
the option of Landlord, be deemed to have been abandoned, and in such case such
items may be retained by Landlord, without accountability and in such manner as
Landlord shall determine, at Tenant's expense including all costs of selling,
disposing, removing and storing such property.
8. Signs. Building exterior tenant identification signs shall be of
such order, size and location as shall be designated by Landlord. Exterior
frames will be furnished by Landlord at Landlord's expense. The cost of Tenant
identification panels and installing same shall be the responsibility of
Tenant. No other signs shall be installed by Tenant. Tenant shall not install
drapes, curtains, blinds or any window treatment, including signs, letters,
etc., displayed behind windows so as to be visible to the exterior of the
Premises, without Landlord's prior written approval. Tenant shall secure and
maintain, at Tenant's sole cost and expense, all required governmental permits
and approvals and all permits and approvals required pursuant to the Notice of
Restrictions with respect to any signs.
9. Inspection and Access.
(a) Landlord and Landlord's agents and representatives shall have the
right to enter and inspect the Premises at any reasonable time during business
hours for the purpose of ascertaining the condition of the Premises to make
such repairs as may be required or permitted to be made by Landlord under the
terms of this Lease or to show the Premises to prospective or actual purchasers
or mortgagees. In the case of an emergency, Landlord shall be entitled to enter
the Premises at any time. During the period that is six (6) months prior to the
end of the term hereof, Landlord and Landlord's agents and representatives
shall have the right to enter the Premises at any reasonable time during
business hours for the purpose of showing the Premises and shall have the right
to erect on the Premises a suitable sign indicating the Premises are available.
Tenant shall give written notice to Landlord at least thirty (30) days prior to
vacating the Premises and shall arrange such joint inspection of the Premises
prior to vacating. In the event of Tenant's failure to arrange such joint
inspection, Landlord's inspection at or after Tenant's vacating the Premises
shall be deemed correct for purposes of determining Tenant's responsibility for
repairs and restoration.
(b) Landlord reserves the right, and Tenant shall permit Landlord, to
install, erect, use and maintain pipes, ducts and conduits in and throughout
the Premises, provided said pipes, ducts and conduits do not materially
interfere with Tenant's
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operations. Nothing herein contained shall be construed as a grant or demise by
Landlord to Tenant of the roof or exterior walls of the Building, of the Land,
and/or of any parking or other common areas located on the Property.
10. Utilities. Tenant shall, at its own cost and expense, provide its
own heating, ventilation and air conditioning system. Landlord agrees to
provide at its own cost water, electricity and telephone service connections to
the Premises, but Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services used on or
from the Premises, together with any taxes, penalties, surcharges or the like
pertaining thereto and shall furnish all electric light bulbs and tubes.
Landlord shall have no obligation to provide any utility services to Tenant or
to perform any cleaning of the Premises. If any such services are not
separately metered to Tenant, Tenant shall pay its proportionate share of all
charges incurred jointly with other premises. Landlord shall in no event be
liable for any interruption or failure of utility services on the Premises.
Tenant shall not use any such systems in excess of the capacity of the wires,
cables, equipment and other facilities thereof.
11. Assignment and Subletting.
(a) Tenant shall not have the right to assign, mortgage or encumber
this Lease, whether voluntarily, involuntarily or by operation of law, or to
sublet the whole or any part of the Premises or to permit the Premises or any
part thereof to be used or occupied by others, in each case without the prior
written consent of Landlord. Tenant hereby agrees that Landlord shall be
entitled to withhold its consent, in its sole discretion, to any such sublease
or assignment except if the building is one hundred percent (100%) leased and
the proposed subtenant or assignee is not an existing tenant in a building
owned or managed by Landlord or an affiliated entity and is not a prospective
tenant for other space within the Building or for space within any other
buildings owned and/or managed by Landlord or an affiliated entity, then
Landlord's consent shall not be unreasonably withheld, subject to the
provisions set forth below and provided (i) Tenant pays Landlord's reasonable
costs in reviewing the proposed assignment or sublease in connection with the
requested consent, including any attorneys' fees incurred by Landlord, (ii) in
Landlord's reasonable judgment, (x) the proposed sublessee or assignee is a
reputable party whose financial net worth and financial responsibility is,
considering the responsibility included, satisfactory to Landlord and (y) the
nature and character of the proposed sublease or assignee, its business or
activities and the proposed use of the space are in keeping with the standards
of the Property, and (iii) Tenant shall not be in default beyond the applicable
notice and grace period hereunder.
(b) In the event Tenant proposes to assign or sublease the Premises,
Tenant shall submit in writing the name and address of the proposed assignee or
sublessee and a true and complete copy of the proposed sublease or instrument
of assignment together with information regarding such subtenant or assignee
sufficient for Landlord to make its determination described in clause (ii) of
paragraph (a) above. Landlord shall have fifteen (15) days after receipt of
notice to consent to or deny said proposal. Upon review of said proposal,
Landlord shall have the sole option to terminate this Lease with Tenant for all
or, with respect to a proposed partial subletting, part of the Premises, as
though the early termination date was the Termination Date. With respect to any
partial termination, the Base Rent and additional rent shall be reduced
proportionately, and Tenant shall pay for and perform all work required to
physically separate the remaining premises from the terminated premises and to
permit lawful occupancy of both. In the event of any termination, Landlord
shall be free to, and shall have no liability to Tenant if Landlord shall,
lease the Premises or any portion thereof to Tenant's proposed assignee or
subtenant. Tenant shall execute all documents requested by Landlord to evidence
and effectuate any such termination. Tenant shall, at Tenant's own cost and
expense, discharge
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in full any outstanding commission obligation on the part of the Landlord with
respect to this Lease, and any commissions which may be due and owing as a
result of any proposed assignment or subletting, whether or not the Lease is
terminated pursuant hereto and rented by Landlord to the proposed subtenant or
any other tenant.
(c) Notwithstanding any permitted assignment or subletting, Tenant
shall at all times remain directly, primarily and fully responsible and liable
for the payment of the rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this Lease. Upon
the occurrence of an Event of Default as herein defined, if the Premises or any
part thereof are then assigned or sublet, Landlord, in addition to any other
remedies herein provided, or provided by law, may at its option collect
directly from such assignee or subtenant all rents coming due to Tenant under
such assignment or sublease and apply such rent against any sums due to
Landlord from Tenant hereunder, and no such collection shall be construed to
constitute a novation or a release of Tenant from the further performance of
Tenant's obligations hereunder.
(d) Any assignment must contain an assumption by the assignee of all of
the terms, conditions and covenants of this Lease to be performed by Tenant and
any sublease shall be and shall provide that the subtenant shall be subject to
and bound by all of the terms, conditions and covenants of this Lease. Each
sublease and assignment shall provide that the sublessee or assignee, as the
case may be, shall not have the right to further assign or sublease, without
the consent of landlord in each instance in accordance with this Article 11.
12. Fire and Casualty Damage.
(a) Landlord agrees to maintain standard fire and extended coverage
insurance covering the Building in an amount not less than 80% (or such greater
percentage as may be necessary to comply with the provisions of any
co-insurance clauses of the policy) of the "replacement cost" thereof as such
term is defined in the Replacement Cost Endorsement to be attached thereto,
such coverage and endorsements to be defined, provided and limited in the
standard forms prescribed by the insurance regulatory authority for the State
in which the Premises are situated for use by insurance companies within such
state. Subject to the provisions of subparagraphs 12(c), 12(d) and 12(e) below,
such insurance shall be for the sole benefit of Landlord and under its sole
control. Tenant agrees to pay to Landlord, as Additional Rent, the amount of
Tenant's full Proportionate Share (as defined in subparagraph 4(b) above) of
such insurance costs. Said payments shall be made to Landlord within ten (10)
days after presentation to Tenant of Landlord's statement setting forth the
amount due. Any payment to be made pursuant to this subparagraph (a) with
respect to the year in which this Lease commences or terminates shall bear the
same ratio to the payment which would be required to be made for the full year
as the part of such year covered by the term of this Lease bears to a full year.
(b) In the event that the Building or the Premises is damaged or
destroyed by fire, tornado and other casualty, Tenant shall give immediate
written notice thereof to Landlord.
(c) In the event that the Building or the Premises is (i) totally
destroyed by fire, tornado, or other casualty; or (ii) is so damaged thereby
that rebuilding or repairs cannot in Landlord's estimation be completed within
two hundred (200) days after the date upon which Landlord is notified of such
damage, or if the Building shall be so damaged or destroyed by fire or other
casualty (whether or not the Premises are damaged or destroyed) that its repair
or restoration requires the expenditure (as estimated by a reputable contractor
or architect designated by Landlord) of more than 50 percent of the full
insurable value of the Building
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immediately prior to the casualty; or (iii) if at least 50 percent of the floor
area of the Premises is damaged or destroyed by fire or other casualty during
the last eighteen (18) months of the then current term of this Lease, then, in
any such cases, Landlord may terminate this Lease by giving Tenant notice to
such effect within ninety (90) days after the date of the casualty, and upon
the date specified in such notice (which shall not be less than 10 days after
such notice is given), this Lease and the estate hereby granted shall terminate
as if the date specified in such notice were the Termination Date.
(d) In the event that the Building or the Premises is damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph
12(a) above, and Landlord is not entitled to or does not elect to terminate
this Lease as provided in paragraph (c), then 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 or the Premises, as the
case may be, to substantially the condition in which they 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 Premises by Tenant. If the
Premises are untenantable in whole or in part following such damage, the Base
Rental payable hereunder and Tenant's Proportionate Share shall be abated or
reduced, as the case may be, in the proportion that the untenantable area of
the Premises bears to the total area of the Premises from the date of the
damage or the total area of the Premises from the date of the damage or
destruction to the date on which any such portion of the Premises shall be made
tenantable. Landlord shall substantially complete such repairs and rebuilding
with one hundred fifty (150) days after the date upon which Landlord is
notified by Tenant of such damage, provided that if construction is delayed
because of strikes, lockouts, casualties, acts of God, war, material or labor
shortages, governmental regulations or control or other causes beyond the
control of Landlord, the period of rebuilding and repairing the Building or the
Premises, as the case may be, shall be extended for the amount of time Landlord
is so delayed, not to exceed ninety (90) days (such two hundred day period, as
it may be so extended, is hereinafter referred to as the "Repair Period"). In
the event that Landlord should fail to substantially complete such repairs and
rebuilding within the Repair Period, Tenant may at its option terminate this
Lease by delivering written notice of termination to Landlord as Tenant's
exclusive remedy whereupon all rights and obligations hereunder shall cease
and terminate.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
(f) Provided that Landlord's right of full recovery under its fire or
other property insurance policies are not adversely effected or prejudiced
thereby, Landlord hereby waives any and all right of recovery which it might
otherwise have against Tenant and its employees for loss or damage occurring to
the Property, to the extent the same is covered by Landlord's insurance,
notwithstanding that such loss or damage may result from the negligence or
fault of Tenant or its employees. Provided that Tenant's right of full
recovery under its fire or other property insurance policies are not adversely
effected or prejudiced thereby, Tenant hereby waives any and all right of
recovery which it might otherwise have against Landlord, its agents, and its
and their employees (including, without limitation, Landlord's agent and
Landlord's property manager), for loss or damage occurring to Tenant's property
whether or not insured, notwithstanding that such loss or damage may result
from the negligence or fault of Landlord, but only to the extent the same
would have been covered by insurance if Tenant had obtained an all risk policy
of insurance covering such property for the full replacement value thereof
without deduction. Each of Landlord and Tenant agrees that it will cause its
insurance carriers to include in its policies a clause or endorsement pursuant
to which the insurance carriers
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(i) waive all right of subrogation against the other party, its agents and
employees and (ii) agree that such policies shall not be invalidated should the
insured waive in writing prior to a loss any or all right of recover against
any party for losses covered by such policies. If extra cost shall be charged
therefor, each party shall advise the other thereof and such party shall not be
obligated to obtain the same unless the other party agrees to pay the amount of
the extra cost.
13. Liability.
(a) Landlord, its trustees, beneficiaries, partners, directors,
officers and agents and its and their employees, including Landlord's agent and
Landlord's property manager, shall not be liable for any loss, damage or injury
to Tenant or any other person or to its or their property, unless caused by or
resulting from the gross negligence or willful misconduct of Landlord, its
agents or employees in the operation or maintenance of the Premises or the
Property. Further, neither Landlord, Landlord's agent nor Landlord's property
manager, even if negligent, shall be liable for consequential damages arising
out of any loss of use of the Premises or any equipment or facilities therein
by Tenant or any person claiming through or under Tenant. In no event shall
Landlord, Landlord's agent or Landlord's property manager be liable for any
damages, claims, expenses or liabilities in excess of Landlord's equity in the
Building regardless of any fault or negligence on the part of Landlord,
Landlord's agent or Landlord's property manager. Tenant hereby covenants and
agrees that it will at all times indemnify, pay on behalf of defend, and hold
harmless Landlord, its trustees, beneficiaries, partners, directors, officers
and agents and its and their employees including Landlord's agent and
Landlord's property manager from any loss, liability, claims, costs and
expenses, including without limitation, attorney's fees and expenses, both real
and alleged, arising from or in connection with (i) the conduct or management
of the Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord, Landlord's agent or
Landlord's property manager) in or about the Premises during the term of this
Lease or during the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Premises; (ii) any act, omission or
negligence of Tenant or any of its subtenants, agents, contractors, invitees,
licensees or its or their employees; (iii) any accident, injury or damage
whatever occurring in, at or upon the Premises not due to the gross negligence
or willful misconduct of the Landlord; and (iv) any breach or default by Tenant
in the full and prompt payment and performance of Tenant's obligations under
this Lease. In case any action or proceeding be brought against Landlord and/or
its trustees, beneficiaries, partners, directors, officers, agents or its or
their employees, including Landlord's agent and Landlord's property manager, by
reason of any such claim, Tenant, upon notice from Landlord shall resist and
defend such action or proceeding (by counsel reasonably satisfactory to
Landlord).
(b) Tenant shall procure and maintain throughout the term of this
Lease at its sole cost and expense, (i) naming Landlord, Jones, Lang, Wootton
Realty Advisors and property manager as additional insured parties, a
commercial general liability insurance policy, including, without limitation,
blanket contractual liability coverage (which shall cover Tenant's obligations
under paragraph (a) above except for the payment of rent), independent
contractors coverage, broad form property damage, personal injury coverage,
products/completed operations and premises operations protecting against any
liability whatsoever, occasioned by any occurrence on or about the Premises
with limits not less than $5,000,000.00 per occurrence in respect of injury to
persons (including death), property damage or destruction, including loss of
use thereof, and Worker's compensation and Employee's Liability insurance (ii)
naming Tenant as the insured, a fire and all risk policy, boiler and machinery
and plate glass insurance
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policies insuring the full replacement value of Tenant's furniture, trade
fixtures, inventory and personal property located in the Premises against fire,
theft, business interruption, sprinkler leakage and water damage and such other
risks or hazards as are insurable under present and future forms of "All Risk"
insurance policies, and with a maximum deductible of $1,000,000. All such
policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing payment of premiums therefor shall be delivered to Landlord
prior to the Commencement Date of this Lease. Not less than fifteen (15) days
prior to the expiration date of any such policies, Tenant shall deliver or
cause to be delivered to Landlord certified copies of the renewals thereof
(bearing notations evidencing the payment of renewal premiums). Such policies
shall further provide that not less than twenty (20) days written notice shall
be given to Landlord before such policy may be canceled or materially modified.
If Tenant hires a contractor or subcontractor, contractor shall carry general
liability insurance naming Landlord, Jones, Lang, Wootton Realty Advisors and
property manager as additional insurers.
14. Condemnation.
(a) In the event that the whole or any part of the Building, Property
or Premises is taken for any public or quasi-public use under governmental law,
ordinance or regulation, or by right of eminent domain, or by private purchase
in lieu thereof (collectively, a "Taking"), and the Taking would prevent or
materially interfere with the Tenant's use of the Building, Property or
Premises for the purpose for which they are being used, this Lease shall
terminate effective when the physical taking of the Premises occurs.
(b) If a Taking of part of the Premises occurs and this Lease is not
terminated as provided in the subparagraph (a) above, this Lease shall not
terminate but the Base Rental payable hereunder and Tenant's Proportionate
Share during the unexpired portion of the Lease shall be adjusted according to
the rentable area remaining tenantable.
(c) Landlord shall be entitled to receive the entire award or payment
in connection with any Taking without deduction therefrom for any estate vested
in Tenant by this Lease and Tenant hereby assigns to Landlord any right it may
have to receive any award or payment as may be allocated to its interests in
this Lease or the Property in any proceedings related to such a Taking.
15. Surrender and Holding Over. Tenant will, at the expiration or other
termination of this Lease, quit and surrender the Premises to Landlord "broom
clean" and in good order, condition and repair, except for ordinary wear and
tear and except for damage by fire and other casualties which results in
termination of the Lease by Landlord as provided for in paragraph 12. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this Lease. If Tenant retains possession of the Premises
or any part thereof after such termination, then Landlord may at its option
serve written notice upon Tenant that such holding over constitutes either (i)
creation of a month-to-month tenancy, upon the terms and conditions set forth
in this Lease, or (ii) creation of a tenancy at sufferance, upon the terms and
conditions set forth in this Lease, provided, however, that in either case the
monthly rental or daily rental, as the case may be, shall, in addition to all
others sums which are to be paid by Tenant hereunder be equal to one and
one-half times the rental being paid to Landlord under this Lease immediately
prior to such termination. If no such notice is served, then a tenancy at
sufferance shall be deemed to be created at the rent set forth in the preceding
sentence. Tenant's payment to Landlord of one and one-half times the rental
shall represent liquidated damages and not a penalty, it being agreed that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises will be substantial and will be impossible to
measure accurately. The provisions of this paragraph shall not constitute a
waiver by Landlord of any right of re-entry
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as herein set forth, nor shall receipt of any rent or any other act in apparent
affirmance of the tenancy operate as a waiver of the right to terminate this
Lease for a breach of any of the terms, covenants or obligations herein on
Tenant's part to be performed.
16. Quiet Enjoyment. Landlord represents and warrants that it has full
right and authority to enter into this Lease and that Tenant, upon paying the
rental herein set forth and performing its other covenants and agreements
herein set forth shall peaceably and quietly have, hold and enjoy the Premises
for the Lease Term hereof without hindrance or molestation from Landlord or any
person claiming by, through and under Landlord, subject to the terms and
provisions of this Lease.
17. Events of Default. The following events shall be deemed to be
"Events of Default" by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the Base Rental when
due, or any payment with respect to Taxes or other Additional Rent hereunder,
when due, and such failure shall continue to a period of ten (10) days from the
date that Landlord has provided written notice that payment is past due,
provided, however, that Landlord shall be obligated to give written notice of
said failure not more than two (2) times during any twelve (12) month period
and thereafter, Tenant shall be deemed to have received written notice on the
date that such payment was due.
(b) Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof, or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
(e) Tenant shall desert any substantial portion of the Premises.
(f) Tenant shall fail to execute, within twenty (20) days after demand
by Landlord, any document that Tenant is obligated to execute pursuant to
paragraph 20, 21 or 29(d) hereof.
(g) Tenant shall assign, in whole or in part, its interest in this
Lease or sublet, in whole or in part, the Premises in violation of paragraph 11.
(h) Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph 17), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant,
or, in the case of a failure which cannot be cured with due diligence within
said twenty (20) day period, shall not notify Landlord within said twenty (20)
day period of Tenant's intention to duly institute all steps necessary to
remedy such default, duly institute within said twenty (20) day period all such
steps, and thereafter diligently and continuously prosecute to completion the
cure of such failure.
18. Remedies. Upon the occurrence of any such Event of Default
described in Paragraph 17 hereof, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises or any part
thereof and expel or remove Tenant and any other person who may be occupying
such Premises or any part thereof, by any suitable action or proceeding at law,
by force or otherwise without being liable to indictment, prosecution or for
any claim of damages therefor; and Tenant shall thereupon pay to Landlord all
Base Rental and
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Additional Rent payable up to the time of such termination of this lease, or of
such recovery of possession of the Premises by landlord, as the case may be and
agrees to pay to Landlord on demand the amount of all loss and damage which
Landlord may suffer by reason of such termination, whether through inability to
relet the Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises or any part thereof
and expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof, by suitable action or proceeding at law, by
force or otherwise without being liable to indictment, prosecution or any
claim for damages therefor, and relet the Premises and receive the rent
therefor; and Tenant shall thereupon pay to Landlord Base Rental and Additional
Rent payable up to the time of such recovery of possession of the Premises by
Landlord and agrees to pay to the Landlord on demand any deficiency that may
arise by reason of such reletting. In the event Landlord is successful in
reletting the Premises at a rental in excess of that agreed to be paid by
Tenant pursuant to the terms of this Lease, Landlord and Tenant each mutually
agree that Tenant shall not be entitled, under any circumstances, to such
excess rental, and Tenant does hereby specifically waive any claim to such
excess rental.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No act or thing done by the Landlord or its agents
during the Lease Term shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to terminate this
Lease or accept a surrender of the Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord 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 violation or breach of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an Event
of Default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon a default shall not be deemed or construed to
constitute a waiver of such default or of landlord's right to enforce any such
remedies with respect to such default or any subsequent default. If, on account
of any breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay any reasonable
attorney's fees to incurred.
19. Landlord's Right of Self-help. If Tenant shall default in the
performance of any of Tenant's obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated to) enter upon
the Premises, without being liable to indictment, prosecution or any claim for
damages therefor, and remedy such default for the account of Tenant,
immediately and without notice in a case of emergency, and in any other case
only if Landlord shall have notified Tenant of such default and the applicable
grace period for curing such default shall have expired. Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease plus interest
at the rate of one and one-half percent (1 1/2%) per annum or the maximum rate
permitted by law, whichever is less, and Tenant further agrees that Landlord
shall not be liable for any damages resulting to the Tenant from such action,
whether caused by the negligence of Landlord or otherwise.
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20. Landlord's Lien. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the Premises, and such property shall
not be removed therefrom without the consent of Landlord until all arrearages in
rent as well as any and all other sums of money then due to Landlord hereunder
shall first have been paid and discharged. In the event of a default under this
Lease, Landlord shall have, in addition to any other remedies provided herein or
by law, all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this Paragraph 20
at public or private sale upon five (5) days' notice to Tenant. Tenant hereby
agrees to execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
Notwithstanding the foregoing, Landlord agrees to subordinate its lien to the
lien of any unrelated third party financing secured by all of such goods, wares,
equipment, fixtures, furniture, inventory, accounts, chattel paper and other
personal property of Tenant situated on the Premises.
21. Mortgages. Tenant acknowledges and agrees that this Lease and all
rights of Tenant hereunder are and shall be subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the Improvements provided, however, that if
the mortgagee, trustee, or holder of any such mortgage or deed of trust elects
to have Tenant's interest in this Lease superior to any such instrument, then
by notice to Tenant from such mortgagee, trustee, or holder, this Lease shall
be deeded superior to such lien, whether this Lease was executed before or
after said mortgage of deed of trust. This Paragraph 21 shall be self-operative
and no further instruments of subordination shall be required. However, Tenant
shall at any time hereafter on demand execute any instruments, releases or
other documents which may be required by any mortgage for the purpose of
confirming the subjecting and subordinating of this Lease to the lien of any
such mortgage. To the extent that the Property is or becomes subject to any
mortgage or other lien, Landlord shall use commercially reasonable efforts to
provide Tenant with non-disturbance agreements.
22. Landlord's Default. In the event that Landlord should become in
default of any payments due on any such mortgage described in Paragraph 21
hereof or in the payment of taxes or any other items which might become a lien
upon the Premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease, Tenant is authorized an empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant;
provided, however, that Tenant shall not be authorized and empowered to make
any payment under the terms of this Paragraph 22 unless the item paid shall be
superior to Tenant's interest hereunder. In the event that Tenant pays any
mortgage debt in full, in accordance with this paragraph, it shall, at its
election, be entitled to the mortgage security by assignment or subrogation.
23. Mechanic's Liens. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
Premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform
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labor for any construction, alterations or repairs. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the Premises or the Property
and that it will save and hold Landlord harmless from any and all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in
the Premises or under the terms of this Lease. Tenant at its expense shall
procure the satisfaction or discharge of record of all such liens and
encumbrances within thirty (30) days after the filing thereof.
24. Sale by Landlord.
(a) The term "Landlord" as used herein shall mean only the owner at the
time in question of the Building and Property. In the event of a sale or
conveyance of the Building, the transferor shall be and hereby is relieved and
freed of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed, without further agreement, that such
transferee has assumed and agreed to perform and observe all obligations of
Landlord herein during the period it is the holder of Landlord's Interest under
this Lease. Tenant agrees to attorn to the transferee.
(b) Tenant shall look only to Landlord's estate in the Property for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of
any default by Landlord hereunder, and no other property or assets of Landlord
or its board of directors and officers, or investment manager, disclosed or
undisclosed, as the case may be, or any employees or agents of Landlord or the
investment manager shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease, the relationship of Landlord and Tenant hereunder or Tenant's use
or occupancy of the Premises.
25. Notices.
(a) Any notice or demand, consent, approval or disapproval, or
statement (collectively, "Notices") required or permitted to be given by the
terms and provisions of this Lease, either by Landlord to Tenant or by Tenant
to Landlord, shall be in writing and shall be personally delivered with receipt
acknowledged or sent by United States mail postage prepaid as registered or
certified mail, return receipt requested addressed as follows (or to such other
address within the continental United States as such addressee may specify from
time to time by Notice delivered in accordance herewith):
If to Landlord's Property Manager, to: If to Landlord, to:
State of Wisconsin Investment Board State of Wisconsin Investment Board
c/o Xxxxxxxx Xxxx Realty Associates, Inc. c/x Xxxxx Lang Wootton Realty Advisors
0000 X.X. Xxx Xxxxxxxxx 000 Xxxx 00xx Xxxxxx
Xxxxx 000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxxxx 00000 Attn: X.X. Xxxxxxx
Attn: Xxxxxx X. Xxxxx, Xx.
If to Tenant, to: With a copy to:
ECC International Corp. ECC International Corp.
000 Xxxxxxxxx Xxxxxx 0000 Xxxxx Xxx, Xxxxx 000
Xxxxx, XX 00000 Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxx Xxxxxxx
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(b) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinabove set
forth or at such other address as Landlord may specify from time to time by
Notice delivered in accordance herewith. 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.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed given, as of the date of delivery or, in the event of
failure to deliver by reason of changed address of which no Notice was given or
refusal to accept delivery, shall be deemed given as of the date of such
failure as indicated by affidavit or on the return receipt or by notice of the
postal service, as the case may be.
(d) If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a Notice
specifying some individual at some specific address for the receipt of Notices
and payments to Landlord. If and when included within the term "Tenant", as
used in this instrument, there are more than one person, firm or corporation,
all shall jointly arrange among themselves to their joint execution of such a
Notice specifying some individual at some specific address within the
continental United States for the receipt of Notices and payments to Tenant.
All parties included within the terms "Landlord" and "Tenant", respectively,
shall be bound by Notices given in accordance with the provisions of this
paragraph to the same effects as if each had received such Notice.
26. Brokerage. Tenant represents and warrants that it has dealt with no
broker, agent, or other person in connection with this transaction other than
Xxxxxxxx Xxxx Realty Services, Inc. and Castle Commercial Realty, and that no
broker, agent, or other person other than Xxxxxxxx Xxxx Realty Services, Inc.
and Castle Commercial Realty, brought about this transaction and Tenant agrees
to indemnify and hold Landlord and Landlord's agent and Landlord's property
manager harmless from and against any claims by any other broker, agent, or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction, and for all
costs, expenses and liabilities in connection therewith, including, without
limitation, attorneys' fees and expenses.
27. Hazardous Material. Landlord and Tenant agree as follows with
respect to the existence or use of hazardous materials and toxic substances on
or about the Premises:
(a) Tenant shall not cause or permit any hazardous materials or toxic
substances to be brought upon, kept or used in or about the Premises by Tenant,
its agents, employees, contractors or invitees, without the prior written
consent of Landlord, which consent may be granted or withheld in Landlord's
sole and absolute discretion. The items attached hereto as Exhibit "F" are
hereby approved by Landlord for Tenant's use. Tenant's request for Landlord's
consent shall demonstrate to Landlord's satisfaction that such hazardous
materials or toxic substances are necessary to the business of Tenant and will
be transported, used, kept and stored in a manner that complies with all laws
relating to any such hazardous materials or such toxic substances so brought
upon or used or kept in or about the Premises. If Landlord grants its consent,
Tenant shall transport, use, keep and store such hazardous materials or toxic
substances in a manner that complies with all laws relating to such hazardous
materials or toxic substances so brought upon or used or kept in or about the
Premises in accordance with any procedures described in Tenant's request for
consent. Landlord's consent to any such bringing upon or use of hazardous
materials or toxic substances upon the Premises shall not be deemed an
acknowledgement that Tenant's method of transport, use or disposal is safe or in
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compliance with law and it shall be Tenant's sole obligation (subject to
Landlord's rights hereunder) to ensure that such method of transport, use and
disposal is safe and in compliance with law.
To the best of Landlord's knowledge, Landlord warrants that as of the
execution of this Lease, the Property is clear of hazardous materials or toxic
substances, except as may be present in accordance with applicable laws and in
accordance with the ordinary course of Tenant's business, if presence of
hazardous materials or toxic substances on the Property caused or permitted by
Tenant or any person claiming by, through or under Tenant, including any
employee or agent of Tenant, results in contamination of the Property, or if
contamination of the Property by hazardous materials or toxic substances
otherwise occurs for which Tenant is legally liable to Landlord for damage
resulting therefrom, then Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims, damages, costs, liabilities and losses,
including without limitation, diminution in value of the Property, damages for
the loss or restriction on use of rentable or usable space or any amenity of the
Property, damages arising from any adverse impact on marketing of space in the
Building, and sums paid in settlement of claims, actual attorneys' fees and
expert fees, which arise during or after the term of this Lease as a result of
such contamination. This indemnification of Landlord by Tenant also includes,
without limitation, costs incurred in connection with any investigation of site
conditions, including regular inspections, or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision or which Landlord otherwise deems necessary to remediate
and remove any such hazardous waste and any contaminated materials, soil or
ground water and to protect any persons or property from injury by reason
thereof if and only if contamination was caused or permitted by any person
claiming by, through or under Tenant including, without limitation, any
employee, contractor, invitee or agent of Tenant. The indemnity and hold
harmless obligations of Tenant under this Paragraph shall survive any
termination of this Lease. Without limiting the foregoing, if any contamination
of the Property is caused or permitted by Tenant or any person claiming by,
through or under Tenant, including any employee or agent of Tenant, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Property to the condition existing prior to the introduction of any such
hazardous materials or toxic substances to the Property; provided that,
Landlord's approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld so long as such actions, in Landlord's sole
and absolute discretion, would not potentially have any material adverse
long-term or short-term effect on the Property or Landlord, its agents and
employees.
(b) Landlord shall have the right, at any time, to cause testing xxxxx
to be installed on or about the Premises, and may at its option cause the
ground water to be tested to detect the presence of hazardous materials or
toxic substances at least once every twelve (12) months during the term of this
Lease by the use of such tests as are then customarily used for such purposes.
If Tenant so requests, Landlord shall supply Tenant with copies of such test
results. The cost of such tests and of the maintenance, repair and replacement
of such xxxxx shall be fully paid for by Landlord unless contamination of the
Premises with hazardous materials or toxic substances has occurred and was
permitted by Tenant or any person claiming by, through or under Tenant
including, without limitation, any employee, contractor, invitee or agent of
Tenant, in which event, the Tenant shall pay for such audit in addition to all
other obligations hereunder, within ten (10) days after receiving a statement
of charges from Landlord. If Landlord tests any area of the Property not leased
to any Tenant, Tenant shall pay its Proportionate Share of such tests,
provided, if any contamination is so detected and it is determined that such
contamination is caused or
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permitted by Tenant or any person claiming by, through or under Tenant,
including any employee or agent of Tenant, Tenant shall pay the entire cost of
such tests. Tenant shall have the right at any time during the term of this
Lease to conduct its own test of the ground water underlying the Premises by
using such xxxxx so long as each of the following conditions are satisfied: (i)
such tests are conducted by Tenant at its own expense; (ii) it repairs any
damage to such xxxxx caused by such tests; and (iii) it delivers copies of the
results of such tests to Landlord.
(c) Landlord and Landlord's agents shall have the right to inspect the
Premises for purposes of ascertaining Tenant's compliance with this Paragraph
27. The cost of such inspections shall be reimbursed to Landlord by Tenant. In
the event of a spill or mishandling of hazardous materials or toxic substances,
Tenant shall immediately inform Landlord verbally and in writing. Such notice
shall identify the hazardous materials or toxic substances involved and the
emergency procedures taken.
(d) It shall not be unreasonable for Landlord to withhold its consent
to any proposed assignment or sublease if (i) the proposed assignee's or
sublessee's anticipated use of the Premises involves the generation,
treatment or disposal of hazardous materials or toxic substances; (ii) the
proposed assignee or sublessee has been required by any prior landlord, lender
or governmental authority to take remedial action in connection with hazardous
materials, or toxic substances contaminating a property if the contamination
resulted from such assignee's or sublessee's actions or use of the property in
question; or (iii) the proposed assignee is subject to an enforcement order
issued by any governmental authority in connection with the use, disposal or
storage of any hazardous materials or toxic substances.
(e) As used herein, the terms "hazardous materials and/or toxic
substances" mean (i) any hazardous or toxic substance, material or waste which
is or becomes regulated by any local, state or federal governments or special
districts, (ii) any substance or material which is designated as a "hazardous
substance" pursuant to Section 1311 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1317), (iii) any substance or material which is defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), or
(iv) any substance or material which is defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601). References herein to specific statutes or laws shall also be
references to any applicable successor statutes or laws.
(f) If Tenant presently uses in its business any materials which may be
hazardous materials or toxic substances as defined in this Paragraph 27, Tenant
shall prior to execution of this Lease deliver to Landlord, (i) a list of all
such hazardous materials and toxic substances (a copy of which list is attached
hereto as Exhibit E), (ii) a plan for use, handling, storage and disposal of
hazardous materials and toxic substances, (iii) the name, address, telephone
number and qualifications of a licensed company that will handle emergency
clean-up for Tenant, and (iv) a written contingency plan for any emergency
involving said hazardous materials and toxic substances. During the term of this
Lease, Lessee shall deliver to Landlord all reports required by all regulatory
agencies governing the use, handling, storage and disposal of hazardous
materials or toxic substances.
(g) Landlord agrees that Tenant may use the hazardous materials and
toxic substances enumerated on Exhibit E, subject to the terms of this Lease.
Tenant shall immediately notify Landlord of any other materials which may be
used by Tenant or stored by Tenant on or about the Premises which may be
hazardous or toxic, and shall obtain Landlord's written consent thereto, which
consent may be granted or withheld in Landlord's sole and absolute discretion,
prior to such use or storage.
(h) Any increase in the premiums for necessary insurance on the
Premises which arises from Tenant's use and/or storage of these materials shall
be solely at Tenant's expense. Tenant shall procure and maintain at its sole
expense such additional
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insurance as may be necessary to comply with any requirement of any federal,
state or local governmental agency or special district with jurisdiction.
(i) It is the intent of the parties hereto that the provisions of this
Paragraph 27 regarding the use and handling of hazardous materials and toxic
substances shall also apply to Tenant's storage upon the Premises of any
substances, including, but not limited to, gasoline and diesel fuels in above
or below ground storage tanks.
28. No Recordation of Lease. Tenant shall not record this Lease or any
memorandum hereof.
29. Miscellaneous.
(a) Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
(b) The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
(c) The captions inserted in this Lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way effect the interpretation of this Lease.
(d) Tenant agrees from time to time within ten (10) days after request
of Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this Lease and such other
matters pertaining to this Lease as may be reasonably required by Landlord. It
is understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease, that any such statement delivered pursuant hereto
shall be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation, and that Tenant shall be liable for
all loss, cost or expense resulting from the failure of any sale or funding of
any loan caused by a material misstatement contained in such estoppel
certificate. In the event Tenant shall fail to return a fully executed copy of
such certificate to Landlord within the foregoing twenty (20) day period, then
Tenant shall be deemed to have approved and confirmed all of the terms,
certifications and representations contained in such certificate and such
certificate as signed by Landlord shall be fully binding on Tenant.
(e) This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the Premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the Premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any
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excess to be returned to Tenant after all such obligations have been determined
and satisfied, as the case may be. Any security deposit held by Landlord shall
be credited against the amount payable by Tenant under this Paragraph 29(f).
(g) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be effected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
(h) Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer by Tenant, and shall not be
valid or binding unless and until accepted by Landlord in writing and a fully
executed copy delivered to both parties hereto.
(i) All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the date first written above.
(j) If either party hereto is successful in enforcing against the other
any legal or equitable remedy for a breach of any of the provisions of this
Lease, the successful party shall be entitled to recover its reasonable
expenses and attorney's fees as a part of the judgment or decree.
(k) The duties and obligations of Tenant herein shall be binding upon
all or any of them. The duties and obligations of Tenant shall run and extend
not only to the benefit of the Landlord, as named herein, but to the following,
at the option of the following or any of them (i) any person by, through or
under which Landlord derives the right to lease the Premises; (ii) the owner of
the Premises; and (iii) holders of mortgage or rent assignment interests in the
Premises, as their respective interests may appear; provided, however, nothing
contained herein shall be construed to obligate Tenant to pay rent to any
person other than the Landlord until such time as Tenant has been given written
notice of either an exercise of a rent assignment or the succession of some
other party to the interest of Landlord.
(l) If Landlord's consent or approval is required pursuant to any
provision hereof and Tenant shall request Landlord's consent or approval and
Landlord shall fail or refuse to give such consent or approval, Tenant shall
not be entitled to any damages for any withholding by Landlord of its consent
or approval, it being intended that Tenant's sole remedy shall be an action for
specific performance or injunction, and that such remedy shall be available
only in those cases where Landlord has expressly agreed in writing not to
unreasonably withhold its consent or approval or where as a matter of law
Landlord may not unreasonably withhold its consent or approval.
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30. Additional Provisions. See Additional Provisions Paragraph(s) 31
through 37, attached hereto and made part hereof as if fully incorporated
herein and when in conflict with the printed portion of this Lease, said
Additional Provisions shall prevail.
EXECUTED BY LANDLORD, this 26th day of January, 1995.
ATTEST/WITNESS STATE OF WISCONSIN INVESTMENT BOARD
By: Xxxxx Xxxx Xxxxxxx Realty Advisors,
Its Agent
1) /s/ [Signature] By: /s/ [Signature]
---------------------------- ------------------------------
2) /s/ [Signature]
----------------------------
EXECUTED BY TENANT, this 30th day of January, 1995.
ATTEST/WITNESS ECC INTERNATIONAL CORP., a Delaware Corporation
1) /s/ [Signature] By: /s/ [Signature]
---------------------------- ---------------------------------
2) /s/ Xxx X. Xxxxxxx Title: V.P. Vending Products Division
---------------------------- ------------------------------
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ADDITIONAL PROVISIONS
31. Landlord shall construct within the Premises the improvements
contemplated by the Preliminary Specifications attached hereto as Exhibit "C"
and made a part hereof ("Landlord's Work"). Landlord shall construct Landlord's
Work in a good and workmanlike manner, in accordance with all applicable laws,
regulation, codes and ordinances, and in accordance with the Work Agreement
attached hereto as Exhibit "D" and made a part hereof. Landlord shall
contribute and pay for up to a total of $248,433.00 toward the cost of
Landlord's Work ("Landlord's Contribution"), and Tenant shall pay to Landlord
all costs associated with Landlord's Work in excess of Landlord's Contribution
within ten (10) days after an invoice from Landlord.
32. The parties agree that one-twelfth (1/12) of Tenant's Proportionate
Share of Taxes described in Paragraph 4 hereof, at the Premises described in
Exhibit "A" hereto, is initially estimated to be TWO THOUSAND SIX HUNDRED
FIFTY-NINE AND 07/100 DOLLARS ($2,659.07) payable as Additional Rent on a
monthly basis subject to adjustment for end-of-the-year reconciliations as
provided in Paragraph 4.
33. The parties agree that one-twelfth (1/12) of Tenant's Proportionate
Share of common area maintenance expenses described in Paragraph 6 hereof, at
the Premises described in Exhibit "A" hereto, is initially estimated to be
SEVEN HUNDRED EIGHTY-FIVE AND 63/100 DOLLARS ($785.63) payable as Additional
Rent on a monthly basis subject to adjustment for end-of-the-year
reconciliations as provided in Paragraph 6.
34. If any holder of any mortgage to which this Lease is subject and
subordinate or any purchaser at a foreclosure sale shall succeed to the rights
of Landlord under this Lease, whether through possession or foreclosure action
or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (a "Successor Landlord"), Tenant shall attorn to
and recognize Successor Landlord as Landlord. This Paragraph 34 shall be
self-operative and no further instruments of attornment shall be required.
However, Tenant shall at any time hereafter on demand execute any instrument
that Landlord or Successor Landlord may reasonably request to evidence such
attornment. Upon such attornment this Lease shall continue in full force and
effect as a direct lease between Successor Landlord and Tenant upon all of the
terms, conditions and covenants set forth in this Lease
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except that Successor Landlord shall not (a) be liable for any previous act,
omission or default of Landlord under this Lease; (b) be responsible for any
liability which shall have accrued to Tenant against Landlord; (c) be bound by
any covenant to undertake or complete any improvements to the Premises or the
Building or to pay to Tenant any sum, or grant to Tenant any credit, towards
the cost of preparing, furnishing or moving into the Premises or any portion
thereof; or (d) be bound by any previous modification, amendment, surrender or
cancellation of this Lease or by any previous prepayment of more than one
month's Base Rental or Additional Rent, unless such modification amendment,
surrender, cancellation or prepayment shall have been expressly approved in
writing by Superior Landlord.
35. Radon Gas: Tenant understands and acknowledges that radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed
to it over time. Levels of radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional information regarding radon and
radon testing may be obtained from your county public health unit.
36. Notwithstanding the provisions of Paragraph 2(a), base monthly
rental shall increase as per the following schedule:
Months 1-36 $20,547.00 per month plus Florida state sales tax.
Months 37-84 $23,872.00 per month plus Florida state sales tax.
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EXHIBIT "A"
Approximately 72,520 square feet as outlined in red in Exhibit "B"
attached hereto and made part thereof, out of a larger building situated on a
tract of ground, the legal description of which is:
From the SW corner of the SE 1/4 of Section 28, Township 23 South, Range
29 East, Orange County, Florida, run N 89 degrees 48 minutes 17 seconds
East 209.52 feet along the S boundary of said SE 1/4; thence run North
00 degrees 11 minutes 43 seconds West 957.68 feet to the NW corner of
ORLANDO CENTRAL PARK NO. 42, as recorded in Plat Book 9, Page 21, Public
Records of Orange County, Florida; thence run South 89 degrees 48
minutes 17 seconds West 605.89 feet along the South boundary of ORLANDO
CENTRAL PARK NO. 46, as recorded in Plat Book 11, Page 60, Public
Records of Orange County, Florida, to the beginning of a tangent curve
concave Northeasterly and having a radius of 405.00 feet; thence run
Northwesterly 191.13 feet along the arc of said curve and said S
boundary through a central of 27 degrees 02 minutes 21 seconds to the
Xxxxxxxxx xxxxxx xx xxxx XXXXXXX XXXXXXX XXXX XX. 00; thence run North
00 degrees 11 minutes 43 seconds West 68.97 feet along the West boundary
of said ORLANDO CENTRAL PARK NO. 46 to the most Southerly corner of
ORLANDO CENTRAL PARK NO. 51, as recorded in Plat Book 14, Page 68,
Public Records of Orange County, Florida, said most Southerly corner
being on a non-tangent curve concave Northeasterly and having a radius
of 345.00 feet; thence from a tangent bearing of North 57 degrees 56
minutes 32 seconds West, run Northwesterly 135.05 feet along the arc of
said curve and the Southwesterly boundary of said ORLANDO CENTRAL PARK
NO. 51, through a central angle of 22 degrees 25 minutes 45 seconds to
the end of said curve; thence run North 35 degrees 30 minutes 47 seconds
West 402.36 feet along said Southwesterly boundary to the SW corner of
said ORLANDO CENTRAL PARK NO. 51; thence run South 00 degrees 11 minutes
43 seconds East 103.79 feet; thence run North 35 degrees 30 minutes 47
seconds West 103.79 feet for the POINT OF BEGINNING: thence continue
North 35 degrees 30 minutes 47 seconds West 149.32 feet to the beginning
of a tangent curve concave Southwesterly having a radius of 970.00 feet
and an intersection angle of 10 degrees 00 minutes 00 seconds; thence
run Northwesterly 169.30 feet along the arc of said curve to the end of
said curve; thence run North 45 degrees 30 minutes 47 seconds West
1257.96 feet to the beginning of a tangent curve concave Northeasterly,
having a radius of 230.00 feet and an intersection angle of 86 degrees
54 minutes 59 seconds; thence run Northwesterly and Northerly 348.91
feet on the arc of said curve to the end of said curve; thence run South
41 degrees 24 minutes 12 seconds West 589.05 feet; thence run South 45
degrees 30 minutes 47 seconds East 2155.09 feet; thence run North 12
degrees 01 minutes 43 seconds West 198.98 feet; thence run North 00
degrees 11 minutes 43 seconds West 309.59 feet to the POINT OF
BEGINNING.
Containing 16.5797 acres, more or less.
Subject to easements.
28
EXHIBIT "B"
Approximately 72,520 Rentable Square Feet
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
[Schematic of property]
29
ECC International
12/29/94 EXHIBIT "C"
1) General Contractor
Permit: $2,344
Cut and patch allowance: $900
Plumbing-LBR & MTL: $8,779
2 prefab shower units: $3,700
1 eye wash unit: $1,650
HVAC testing area 7,200 sf-22.5 tons: $18,787
HVAC assembly area 36,000 sf-90 tons: $74,250
Fire alarm for duct detector: $6,899
Electrical-1200 amps total $60,000
Brkrm/office/bthroom construction: $22,150
Compactor ramp $1,500
Paint existing office areas: $5,010
Replace flooring in office area: $6,788
Trash: $200
Supervision: $3,800
O&P $21,676
SUB-TOTAL $238,433
2) Professional Services
Architectural $3,000
Engineering $5,000
Roof Engineer $2,000
GRAND TOTAL $248,433
30
EXHIBIT "C" CONT.
NOTES:
Electrical scope of work to include:
* Wire 3 7.5 ton split systems in testing area
* Wire 9 10 ton split systems in assembly
* Wire 1 5 ton split system over office break area.
* Wire 20 2 X 4 lay in light fixtures
* 2 exit lights
* Wire/hookup 1 30 gallon water heater
* Bringing in 2-600 amp services with direct feeders and
dedicating 400 amps to HVAC system
* There are no hookups or wiring of desk mounted tools,
equipment or additional lighting included in this proposal
other than noted above.
Plumbing scope of work:
* 5 Fixtures proposed in men's and women's each 10 total
* 3 sinks proposed in men's and women's each 6 total
* 1 floor drain in men's and women's 2-total
* Code will require 3 drinking fountains in the warehouse area
we have not included a cost for this and recommend using
bottled water.
HVAC scope of work to include:
* The lack of barriers in the assembly and testing areas will
cause the HVAC equipment to run more continuously than a
balanced space.
* The areas directly behind the designated conditioned areas
may be 10 degrees warmer than the conditioned areas during
summertime conditions.
* The HVAC equipment is proposed without heat strips, the
equipment will cool only.
* It appears that roof deck insulation will not be required,
however this will have to be confirmed with the county.
Exclusions:
Telephone, Data, or computer cabling.
It appears that impact fees will be assessed. These fees
are not included and will be Tenant's responsibility.
Warehouse floor stripping of sealing.
Air lines - lbr and mtl.
Relocation or staging expenses.
No fire protection upgrades.
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EXHIBIT "D"
Work Agreement
1. Drawings, Plans & Specifications
(a) Landlord shall cause Preliminary Space Plans to be prepared
and delivered to Tenant.
(b) After receipt of Tenant's approval of the Preliminary Space
Plans, Landlord shall cause the following to be prepared and delivered to
Tenant:
(i) architectural drawings for Landlord's Work
sufficient to obtain a building permit from the Orange County Building
Department (which architectural drawings shall include a reflected ceiling
plan); and
(ii) materials, colors and designs of wall coverings
and finishes.
(c) The plans, specifications and information described in
paragraphs 1(a) and (b) above are hereinafter collectively referred to as
"Landlord's Drawings." The cost of preparation and delivery of Landlord's
drawings shall be considered part of Landlord's contribution pursuant to
Paragraph 31.
2. Landlord's Work
As contemplated by Paragraph 31 of the Lease, Landlord shall
construct or cause to be constructed all improvements provided for in
Landlord's Drawings (i.e., Landlord's Work). The cost of Landlord's Work, less
Landlord's Contribution, shall be paid by Tenant to Landlord (as Additional
Rent) within ten (10) days after Tenant's receipt of an invoice therefor.
3. Fees
Tenant shall pay to Landlord the cost of Landlord's work (less
Landlord's Contribution) plus, as Additional Rent, an additional (a) eight
percent (8%) for general contractors Overhead and Profit, (b) $27.50 per hour
for each hour (or portion of an hour) of supervision by general contractor, and
(c) six percent (6%) for construction management. All such fees shall be paid
by Tenant to Landlord as and when billed by Landlord to Tenant and within ten
(10) days after Tenant's receipt of each such xxxx. All payments to be made by
Tenant to Landlord under this Work Agreement shall be payable by Tenant and
collectible by Landlord in the same manner and to the same extent as the
payment of Base Rental under the Lease, regardless of whether the term of the
Lease has then commenced, and any default by Tenant in the payment of any
amounts due under this Work Agreement shall entitle Landlord to the same rights
and remedies to which Landlord is entitled for default by Tenant in the payment
of Base Rental under the lease.
4. Tenant's Delay
(a) If Landlord shall be delayed in substantially completing
any work it is required to perform hereunder as a result of any act, neglect,
failure or omission of Tenant, its agents, employees or contractors, including
without limitation any of the following, such delay shall be deemed a "Tenant
Delay":
(i) Tenant's failure to approve Landlord's Drawings in
the time period provided in paragraph 5 hereof; or
(ii) Tenant's delays in submitting or approving any
other drawings, plans or
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specifications, or in supplying information; or
(iii) Tenant's request for materials, finishes or
installations (other than those included in Building Standard Work); or
(iv) Tenant's changes in drawings, plans or
specifications submitted to or prepared by Landlord (including any Revisions);
or
(v) the entering onto the Premises by Tenant, its
agents, employees or contractors to perform any work on the Premises, to
inspect the Premises or otherwise; or
(vi) any delays of contractors or subcontractors
resulting from Tenant's failure to timely approve cost estimates or to make
any payments required hereunder.
(vii) any other Tenant delay caused by failure to
comply with the provisions of this Work Agreement.
(b) Tenant shall pay to Landlord a sum equal to any
additional cost to Landlord in performing and completing Landlord's Work
resulting from any Tenant Delay. Any such sums shall be in addition to any other
sums payable by Tenant hereunder and shall be paid to Landlord within ten (10)
days after Landlord bills Tenant therefor.
5. Submissions
Unless otherwise provided herein, Tenant shall, within five (5)
days after Landlord submits any drawings, plans or other material to Tenant for
Tenant's approval, respond in writing, either (i) approving such drawings, plans
or materials, or (ii) requesting Landlord to make specific changes therein.
All of Tenant's requested changes shall be subject to Landlord's prior written
approval, which shall not be unreasonably withheld, provided, however, that
Landlord shall have no obligation to make any changes requested by Tenant unless
Tenant's request for changes complies with the provisions of Paragraph 6(b)
below. Unless otherwise provided herein, Tenant's failure to respond within the
time period set forth in the preceding sentence shall be deemed approval of
Landlord's submission.
6. Revisions
(a) Tenant shall have the right to make changes from time to
time in Landlord's Drawings by submitting to Landlord revised plans and
specifications (herein called the "Revisions"). All Revisions shall be subject
to Landlord's prior written approval, which shall not be unreasonably withheld.
Without limiting the generality of the foregoing, no Revisions will be approved
unless (i) all changes to and modifications from Landlord's Drawings are circled
or highlighted as per standard industry practices and (ii) said Revisions
conform with the requirements of paragraph 6(b).
(b) Landlord shall not be required to perform, and Tenant
shall not request, work which would (i) require changes to structural components
of the Building or the exterior design of the Building, (ii) require any
material modification to the Building's mechanical installations or other
Building installations outside the Premises, (iii) require installation
(including quality of materials) which are below the quality of building
standard installations, (iv) not comply with all applicable laws, rules,
regulations and requirements of any governmental department having jurisdiction
over the construction of the Building and/or the Premises, (v) be incompatible
with the Building plans filed with the Department of Buildings or any other
department or agency of the City of Orlando or the County of Orange or with the
occupancy of the Building as a first-class warehouse building, or (vi) delay the
completion of any work being performed in the Building or any part thereof
(other than the Premises).
(c) Any changes required by any governmental department before
completion of Landlord's Work affecting the construction of the Building and/or
the Premises shall be performed by Landlord in completing the Premises, shall
not be deemed to be a violation of the
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Preliminary Space Plan or the Work Agreement and shall be deemed automatically
accepted and approved by Tenant. Tenant shall reimburse Landlord within five
(5) days after demand by Landlord for any cost arising out of the changes
described in this Paragraph 6(c).
(d) Any changes required by any governmental department after
completion of the Premises affecting the Premises shall be performed by Tenant
at Tenant's sole cost and expense by contractors approved by Landlord, which
approval may be granted or withheld in Landlord's sole discretion.
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[Schematic of property]
