Exhibit 10.22
LEASE
THIS LEASE (the "Lease") is executed this 28th day of December, 2005, by
and between. DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and INNOTRAC CORPORATION, a Georgia corporation ("Tenant").
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
(a) Leased Premises (shown outlined on EXHIBIT A attached hereto): the
Rentable Area (as defined in (b) below) within a building to be constructed by
Landlord and located at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the
"Building"), to be constructed on an approximate 29.69 acre site, the legal
description of which is attached hereto and made a part hereof as EXHIBIT A-1
(the "Site") in Hebron Industrial Park (the "Park"). The Leased Premises
consists of approximately 356,160 rentable square feet of space (the "Initial
Space") and approximately 290,308 rentable square feet of space (the "Remaining
Space") in the Building. The Initial Space and the Remaining Space are each
shown on EXHIBIT A.
(b) Rentable Area:
Month 1 approximately 348,616 square feet*
Months 2-12 approximately 356,160 square feet*
Months 13-60 approximately 646,468 square feet
* or such greater area occupied by Tenant for a Permitted Use (as defined
below) as measured from the outside surface of the exterior wall of the
Building to the outside surface of the exterior wall of the Building by
Landlord from time-to-time pursuant to Section 1.0l(e) below.
(c) Tenant's Proportionate Share: 100%, subject to Section 16.17.
(d) Minimum Annual Rent:
Month 1 $ 90,640.16 (1 month)**
Months 2 -12 $1,018,617.60 (11 months)*
Year 2 $2,055,768.24***
Year 3 $2,101,020.96
Year 4 $2,139,809.04
Year 5 $2,185,061.88
(e) Monthly Rental Installments:
Month 1 $90,640.16 per month**
Months 2-12 $92,601.60 per month*
Month&sl3-24 $171,314.02 per month***
Months 25-36 $175,085.08 per month
Months 37-48 $178,317.42 per month
Months 49-60 $182,088.49 per month,
* Based on 356,160 rentable square feet, beginning on die Commencement Date
(as defined in Section 2.01): Landlord and Tenant agree to jointly measure
the area of the Leased Premises actually occupied by Tenant for the
Permitted Use every thirty (30) days following the Commencement Date during
the first twelve (12) months of the Lease Term, and Tenant's Monthly Rental
Installments and Minimum Annual Rent shall be adjusted using the net rental
rate of Three Dollars and Twelve Cents ($3.12) per square foot for any
square footage in excess of the Initial Space occupied and used by Tenant
for the storage and/or shipment of third party inventory during the first
twelve (12) months of the Lease Term only. Upon such measurement and
adjustment the rent shall not be reduced.
** Based upon 348,616 rentable square feet which consists of the Initial Space
less the Office Space (as hereinafter defined)
*** Based on 646,468 reusable square feet
(f) [INTENTIONALLY OMITTED].
(g) Target Commencement Date: May 1,2006.
(h) Lease Term: Five (5) years from the Commencement Date, as may be
extended pursuant to the provisions of this Lease.
(i) Security Deposit: $50,000,00.
(j) Brokers: Duke Realty Services Limited Partnership representing Landlord
and Xxxxx & Xxxxx Xxxx Shell Commercial representing Tenant.
(k) Permitted Use: General office, warehousing, distribution, and storage
of consumer goods, call centers, fulfillment and handling for third parties and
related purposes.
(l) Address for notices and payments are as follows:
Landlord: Duke Realty Limited Partnership
Attn.: Senior Property Manager
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
With Payments to: Duke Realty Limited Partnership
00 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Tenant (prior to occupancy): Innotrac Corporation
Attn.: Xxxxxx Xxxxx, Vice President
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
With a Copy to: Kitchens Xxxxxx Xxxxxx, P.C.
Attn.: Xxxxx X. Xxxxxx, Esq.
00 Xxxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
Tenant (following occupancy): Innotrac Corporation
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000.
and
Innotrac Corporation
Attn.: Xxxxxx Xxxxx, Vice President
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
With a Copy to: Kitchens Xxxxxx Xxxxxx, P.C.
Attn.: Xxxxx X. Xxxxxx, Esq.
00 Xxxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000.
(m) Goarantor(s): Not applicable.
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EXHIBITS
Exhibit A Initial Space, Leased Premises, Refusal Space, Building Parking,
Monument Sign
Exhibit A-l Legal Description of Site
Exhibit X-x Plans and Specifications
Exhibit B-2 Project Schedule
Exhibit B-3 Rules of Conduct
Exhibit B-4 Letter of Understanding
Exhibit B-5 Materials Handling Consultant's Requirements
Exhibit C Operating Expense Exclusions
Exhibit D Rules and Regulations
Exhibit E Load Capacity
Exhibit F Maintenance Criteria
Section 1.02. Lease of Premises. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the Leased Premises, under the terms and
conditions herein, together with a non-exclusive right, in common with other
tenants of the Building, if any, to use the following (collectively, the "Common
Areas"): the areas of the Building and the underlying land and improvements
thereto that are designed for use in common by all tenants of the Building and
their respective employees, agents, customers, invitees and others.
ARTICLE 2 - TERM AND POSSESSION
Section 2.02. Term. The Lease Term shall commence as of the date (the
"Commencement Date") that Substantial Completion (as defined in Section 2.02
below) of the Initial Space Work (as defined in Section 2.02) occurs, but in no
event shall Minimum Annual Rent be required to be paid earlier than May 1, 2006
unless Tenant is receiving and/or shipping Target (defined below) product in the
Initial Space.
Section 2.02. Construction of Improvement.
(a) Landlord shall construct in a good and workmanlike manner the Building
and the interior tenant finish improvements (collectively, the "Work") depicted
and described in the plans and specifications set forth in EXHIBIT B-1 attached
hereto and made a part hereof (the "Plans and Specifications"), and in
accordance with all applicable laws, codes and regulations. The Work described
in the Plans and Specifications consists of the portion of the Work to be
performed in and with respect to the Initial Space (the "Initial Space Work")
and the portion of the Work to be performed in and with respect to the Remaining
Space (the "Remaining Space Work") Landlord shall supply all work, labor,
materials equipment and everything else necessary to complete the Work, which
shall include, without limitation, the installation of landscaping, parking
lots, driveways, roadways, and all improvements as shown on the Plans and
Specifications for the benefit of the Leased Premises. To the extent that street
and roadway improvements are contemplated in connection with the development and
use of the Building, Site and Park but not fully shown in the Plans and
Specifications, Landlord shall assure that such street and roadway improvements
are completed as part of the Work.
(b) The schedule for the construction, installation and completion of the
Work is attached hereto and made a part hereof as EXHIBIT B-2 (the "Project
Schedule"). Landlord shall notify Tenant of any material changes to the Project
Schedule. Tenant agrees to coordinate with Landlord regarding the installation
of Tenant's phone and data wiring and any other fixtures, trade fixtures (such
as racking), furniture and materials handling equipment and systems that are not
a part of the Work that Tenant desires to install in the Leased Premises prior
to Substantial Completion ("Tenant Equipment"). If and to the extent permitted
by applicable laws, rules and ordinances, Tenant shall have the right to enter
(i) the warehouse portion of the Initial Space (the "Warehouse Space") on and
after March 24, 2006, by which date Landlord shall have performed the Initial
Space Work to a state of completion described in EXHIBIT B-5, (ii) the Remaining
Space on and after July 3, 2006, and (iii) the office portion of the Initial
Space (the "Office Space") on and after May 1, 2006 for wiring and cabling and
May 22, 2006 for furniture installation (the "Office Fit-Out"); in order to
install Tenant Equipment in the Warehouse Space and the Remaining Space and to
complete the Office Fit-Out in the Office Space, and otherwise prepare such
space, for occupancy, which right of entry shall expressly exclude making any
structural modifications to the Building; provided, the anchoring of Tenant
Equipment shall not be deemed a material structural modification, but any such
anchoring shall require Landlord's prior written approval. Tenant acknowledges
that Tenant may not support or anchor Tenant Equipment from the roof of the
Building. During any entry permitted under this Section 2.02(b) (a) Tenant shall
comply with all terms and conditions of this Lease other than the obligation to
pay rent, (b) Tenant shall not interfere with Landlord's completion of the Work,
(c) Tenant shall cause its personnel and contractors to comply with the terms
and conditions of Landlord's rules of conduct attached hereto as EXHIBIT B-3,
and (d) Tenant
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shall not begin receiving and/or shipping third party product. Tenant
acknowledges that Tenant shall be responsible for obtaining all applicable
permits and inspections relating to any such entry by Tenant.
(c) Landlord shall provide Tenant with an allowance equal to Five Thousand
Dollars ($5,000.00) ("Allowance"). The Allowance shall be applied solely toward
the actual cost of installing, at Tenant's option, (i) a monument sign in front
of the Building in the location shown on EXHIBIT A, or (ii) an exterior Building
sign bearing Tenant's trade name and logo. The design, form and content of any
sign shall be approved by Landlord and Tenant in advance of installation,
subject to all zoning and other municipal and county regulations. Landlord shall
install the signage, provided that any signage costs which exceed the Signage
Allowance shall be paid by Tenant to Landlord within thirty (30) days of
Tenant's receipt of an invoice therefor.
(d) Tenant shall have the right to request changes to the Plans and
Specifications at any time by way of written change order (each, a "Change
Order", and collectively, "Change Orders"). Provided such Change Order is
reasonably acceptable to Landlord, Landlord shall prepare and submit promptly to
Tenant a memorandum setting forth the impact on cost and schedule resulting from
said Change Order (the "Change Order Memorandum of Agreement"), but not less
than three (3) business days following a Change Order request. Tenant shall,
within three (3) business days following Tenant's receipt of the Change Order
Memorandum of Agreement, either (i) execute and return the Change Order
Memorandum of Agreement to Landlord, or (ii) be deemed to have retracted its
request for the Change Order. At Landlord's option, Tenant shall pay to Landlord
(or Landlord's designee), within ten (10) days following Landlord's request, any
increase in the cost to construct the Work resulting from the Change Order, as
set forth in the Change Order Memorandum of Agreement. Landlord shall not
commence any work set forth in a Change Order until such time as Tenant has
delivered to Landlord the Change Order Memorandum of Agreement executed by
Tenant and, if applicable, Tenant has paid Landlord in full for said Change
Order.
(e) At least thirty (30) days prior to Substantial Completion of the
Initial Space Work in the Warehouse Space or the Office Space or tee Remaining
Space Work, as the case may be, Landlord shall notify Tenant as to when such
Substantial Completion will occur. Such work shall be deemed to be substantially
completed ("Substantially Complete" or "Substantial Completion") at such time as
(i) all the improvements described in the Plans and Specifications with respect
to such work have been completed, subject only to minor punchlist items to be
identified by Tenant and Landlord during a joint inspection of the applicable
space prior to Tenant's occupancy thereof (other than for purposes permitted
under Section 2.02(b)). (ii) a certificate of occupancy for such space has been
issued, or other similar authorization has been issued, by the appropriate
governmental authority that permits Tenant to operate its business from such
space; provided that the certificate of occupancy for the Warehouse Space may be
a temporary certificate permitting Tenant to receive and store third party
inventory only, and, (iii) all utilities, including water, sewer, gas, electric
and telephone, are immediately available for Tenant's use in such space. "Tenant
Delay" shall mean any delay after November 3, 2005 in the completion of the
Initial Space Work in the Warehouse Space or the Office Space or the Remaining
Space Work, as the case may be, to the extent attributable to acts or omissions
of Tenant that actually cause a delay in the performance and completion of such
work, including, without limitation delays that may be caused by (i) Tenant's
failure to meet any time deadlines specified herein, (ii) Change Orders, (iii)
the performance of any other work in such space by any person, firm or
corporation employed by or on behalf of Tenant, or any failure to complete or
delay in completion of such work to the extent not attributable to Landlord's
failure to make such space available at the time or in the condition required
under Section 2.02(b), (iv) Landlord's inability to obtain an occupancy permit
for such space, because of the need for completion of all or a portion of
improvements, including, without limitation, Tenant Equipment, being installed
in such space directly by Tenant and which are not the responsibility of
Landlord, and (v) any other act or omission of Tenant.
(f) Notwithstanding anything to the contrary contained in the Lease, if
Substantial Completion of the Initial Space Work in the Warehouse Space is
delayed beyond the Target Commencement Date as a result of Tenant Delay, then,
for purposes of determining the Commencement Date, Substantial Completion of
Work shall be deemed to have occurred on the date that Substantial Completion of
such work would have occurred but for such Tenant Delay. In the event the
Landlord fails to Substantially Complete such work on or before May 6, 2006,
subject to Tenant Delay and force majeure, then (i) Tenant shall be entitled to
an abatement of one (1) day's Minimum Annual Rent for each day beyond such date
that such work is not Substantially Completed, said abatement to commence at
such time as Minimum Annual Rent becomes due and payable by Tenant hereunder,
and (ii) Landlord shall reimburse Tenant for forty percent (40%) of the amounts
that are payable and paid as damages by Tenant to Target Corporation or
Xxxxxx.xxx ("Target") on account of delays in achieving post-May 6, 2006
milestones pursuant to that certain agreement between Tenant and Target dated
October 12, 2005 (the "Target Agreement"), which reimbursement shall be payable
by Landlord within fifteen (15) days following the date that Tenant delivers to
Landlord evidence that such amounts have been paid to Target
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by Tenant. Tenant represents to Landlord that the schedule of liquidated damages
payable by Tenant to Target on account of missed post-May 6, 2006 milestones
under the Target Agreement is: (i) $1,000 per day for each of the first 15 days
following the Milestone Achievement Date (as defined in the Target Agreement) in
which the Milestone (as defined in the Target Agreement) is failed to be
achieved, (ii) $2,500 per day for each of the days following the 15th day but
prior to the 30th day following the Milestone Achievement Date in which the
Milestone is failed to be achieved, and (iii) $5,000 per day for each day
following the 30th day following the Milestone Achievement Date in which the
Milestone is failed to be achieved; provided, however, if the missed Milestone
is the Go-Live Date (as defined in the Target Agreement), then the amount of
liquidated damages is (i) $60,000 for the first week of delay after the Go-Live
Date, (ii) $70,000 for the second week of delay after the Go-Live Date, and
(iii) $15,000 per day thereafter, and said liquidated damages are specified in
the Target Agreement to be Xxxxxx.xxx's exclusive remedy.
(g) Promptly following the Substantial Completion of the Initial Space Work
in the Warehouse Space and of the Remaining Space Work, Tenant shall execute
Landlord's Letter of Understanding in substantially the form attached hereto as
EXHIBIT B-4 and made a part hereof. If Tenant takes possession of and occupies
the initial Space or the Remaining Space, or any portion thereof, other than for
purposes permitted under Section 2.02(b). Tenant shall be deemed to have
accepted such space and that the condition of such space and the Building was at
the time satisfactory and in conformity with the provisions of this Lease in all
respects, subject to any punchlist items and the performance of Landlord's
obligations under this Lease.
(h) Landlord warrants that all Work will be free of defects in workmanship
and/or materials for a period of one (1) year from the date of Substantial
Completion of all the Work. Landlord further warrants that any defects in
workmanship and/or materials occurring within the period covered by this
warranty shall be remedied, including revisions thereto that may be required to
correct a design or engineering defect at Landlord's cost and expense, to
Tenant's reasonable satisfaction. Landlord shall exercise for the benefit of
Tenant all manufacturer's and subcontractor warranties.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease Tenant shall, at its sole cost and expense,
immediately (a) surrender the Leased Premises to Landlord in broom-clean
condition and in good order, condition and repair, (b) remove from the Leased
Premises (i) Tenant's Property (as defined in Section 8.01 below), (ii) all data
and communications wiring and cabling (including above ceiling, below raised
floors and behind walls), and (iii) any alterations required to be removed
pursuant to Section 7.03 below, and (c) repair any damage caused by any such
removal and restore the Leased Premises to the condition existing upon the
Commencement Date, reasonable wear and tear excepted, and all of Tenant's
Property that is not so removed within thirty (30) days following Landlord's
written demand therefor shall be conclusively deemed to have been abandoned, and
Landlord shall be entitled to dispose of such property at Tenant's cost without
incurring any liability to Tenant. This Section 2.03 shall survive the
expiration or any earlier termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after me expiration or earlier termination of this Lease, Tenant shall
be a tenant at sufferance at one hundred fifty percent (150%) of the Monthly
Rental Installments and Annual Rental Adjustment (as hereinafter defined) for
the Leased Premises in effect upon the date of such expiration or earlier
termination, and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease,
nor shall such acceptance create a month-to-month tenancy. In the event a
month-to-month tenancy is created by operation of law, either party shall have
the right to terminate such month-to-month tenancy upon thirty (30) days' prior
written notice to the other, whether or not said notice is given on the rent
paying date. This Section 2.04 shall in no way constitute a consent by Landlord
to any holding over by Tenant upon the expiration or earlier termination of this
Lease, nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments in advance, without demand, deduction or
offset, on the Commencement Date and on or before the first day of each and
every calendar month thereafter during the Lease Term. The Monthly Rental
Installments for partial calendar months shall be prorated. Notwithstanding any
provision of this Lease to the contrary, in the absence of Tenant receiving
and/or shipping Target product in the Remaining Space, die installation of
Tenant's Equipment within the Remaining Space prior to the thirteenth (13th)
month of the Lease Term shall not require Tenant to commence paying Minimum
Annual Rent on the Remaining Space.
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Section 3.02. Annual Rental Adjustment Definitions.
(a) "Annual Rental Adjustment" shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular calendar year.
(b) "Operating Expenses" shall mean the amount of all of Landlord's costs
and expenses paid or incurred in operating, repairing, replacing and maintaining
the Building and the Common Areas in good condition and repair for a particular
calendar year (including all additional costs and expenses that Landlord
reasonably determines that it would have paid or incurred during such year if
the Building had been fully occupied), including by way of illustration and not
limitation, the following: all Real Estate Taxes (as hereinafter defined),
insurance premiums and deductibles; water, sewer, electrical and other utility
charges other than the separately billed electrical and other charges paid by
Tenant as provided in this Lease (or other tenants in the Building); painting;
stormwater discharge fees; tools for Landlord's employees and supplies; repair
costs; landscape maintenance costs; access patrols; license, permit and
inspection fees; management fees; administrative fees; supplies, costs, wages
and related employee benefits payable for the management, maintenance and
operation of the Building; maintenance, repair and replacement of the driveways,
parking areas, curbs and sidewalk areas (including snow and ice removal),
landscaped areas, drainage strips, sewer lines, exterior walls, foundation,
structural frame, roof, gutters and lighting; and maintenance and repair costs,
dues, fees and assessments incurred under any covenants or charged by any owners
association. The cost of any Operating Expenses that are Capital Items (as
defined in and not excluded pursuant to EXHIBIT C) shall be amortized over the
useful life of the improvement (as reasonably determined by Landlord), and only
the amortized portion shall be included in Operating Expenses. The Annual Rental
Adjustment shall be prorated for partial calendar years during the Lease Term.
Notwithstanding the foregoing, Operating Expenses shall exclude the items
listed on EXHIBIT C attached hereto and made a part hereof.
(c) "Tenant's Proportionate Share of Operating Expenses" shall mean an
amount equal to the product of Tenant's Proportionate Share times the Operating
Expenses.
(d) "Real Estate Taxes" shall mean any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, income, capital levy, sales, excise, franchise, gift, succession,
inheritance, corporate, partnership, estate or transfer taxes) imposed upon the
Building or Common Areas, or against Landlord's business of leasing the
Building, by any authority having the power to so charge or tax, together with
costs and expenses of contesting the validity or amount of the Real Estate
Taxes. Notwithstanding any provisions to the contrary. Landlord shall promptly
pay all Real Estate Taxes before the imposition of any interest and penalty
thereon by the applicable taxing authority and if Landlord fails to pay any Real
Estate Taxes before the imposition of any interest and penalty thereon by the
applicable taxing authority, Landlord shall be solely responsible for the
interest and penalties and, at Tenant's option with prior written notice to
Landlord, Tenant may pay directly to the applicable taxing authorities such Real
Estate Taxes and setoff the same against Minimum Annual Rental thereafter due.
(e) Operating Expenses shall be reduced by all cash discounts, trade
discounts, or quantity discounts received by Landlord or Landlord's managing
agent in the purchase of any goods, utilities, or services in connection with
the operation of the Building. Landlord will make payments for goods, utilities,
or services in a timely manner in order to obtain the maximum possible discount.
Operating expenses shall also be reduced by the amount of any tax abatements, to
the extent the taxes abated are otherwise includable as Operating Expenses.
(f) If any facilities, services or utilities used in connection with the
Building are provided from another building owned or operated by Landlord or
vice-versa, the costs incurred by Landlord in connection with them will be
allocated to Operating Expenses by Landlord on an equitable basis if and to the
extent that such expenses are permitted to be included within the meaning of
Operating Expenses.
Section 3.03. Payment of Additional Rent.
(a) Any amount required to be paid by Tenant hereunder (in addition to
Minimum Annual Rent) and any charges or expenses incurred by Landlord on behalf
of Tenant under {he terms of this Lease shall be considered "Additional Rent"
payable in the same manner and upon the same terms and conditions as the Minimum
Annual Rent reserved hereunder, except as set forth herein to the contrary. Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due shall entitle Landlord to the remedies available to it far
non-payment of Minimum Annual Rent.
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(b) In addition to the Minimum Annual Rent specified in this Lease,
commencing as of the Commencement Date, Tenant shall pay to Landlord as
Additional Rent for the Leased Premises, in each calendar year or partial
calendar year during the Lease Term, an amount equal to the Annual Rental
Adjustment for such calendar year; provided, if the Commencement Date occurs at
any time other than the commencement or end of a calendar year, the Annual
Rental Adjustment and Real Estate Taxes shall be prorated based on the date of
the Commencement Date. Landlord shall estimate the Annual Rental Adjustment
annually, and written notice thereof shall be given to Tenant prior to the
beginning of each calendar year. Tenant shall pay to Landlord each month, at the
same time the Monthly Rental Installment is due, an amount equal to one-twelfth
(1/12) of the estimated Annual Rental Adjustment. If Operating Expenses increase
during a calendar year, Landlord may increase the estimated Annual Rental
Adjustment during such year by giving Tenant written notice to that effect if
the overall budgeted Operating Expenses are expected to increase, and thereafter
Tenant shall pay to Landlord, in each of the remaining months of such year, an
amount equal to the amount of such increase in the estimated Annual Rental
Adjustment divided by the number of months remaining in such year. Within a
reasonable time after the end of each calendar year, but not later than April
30, Landlord shall prepare and deliver to Tenant a statement showing the actual
Annual Rental Adjustment. Within thirty (30) days after receipt of the
aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit
against the next rent payment or payments due from Tenant, as the case may be,
the difference between the actual Annual Rental Adjustment for the preceding
calendar year and the estimated amount paid by Tenant during such year. This
Section 3.O3 shall survive the expiration or any earlier termination of this
Lease.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to pay timely any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become overdue, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the prime rate of interest, as reported in the Wall Street Journal
(the "Prime Rate") plus three percent (3%) per annum.
Section 3.05. Inspection and Audit Rights.
(a) Tenant shall have the right to inspect, at reasonable times and in a
reasonable manner, during the ninety (90) day period following the delivery of
Landlord's statement of the actual amount of the Annual Rental Adjustment (the
"Inspection Period"), such of Landlord's books of account and records as pertain
to and contain information concerning the Annual Rental Adjustment for the prior
calendar year in order to verify the amounts thereof, including documentation
evidencing the amount of the components of Operating Expenses. Such inspection
shall take place at Landlord's office upon at least fifteen (15) days prior
written notice from Tenant to Landlord. Only Tenant or a third party
representative of Tenant that is not being compensated for his/her services on a
contingency fee basis shall conduct such inspection. Tenant shall also agree to
follow Landlord's reasonable procedures for auditing such books and records.
Landlord and Tenant shall act reasonably in assessing the other party's
calculation of the Annual Rental Adjustment, Tenant shall endeavor to provide
Landlord with a copy of its findings within thirty (30) days after completion of
the audit, but shall in any case provide such copy within ten (10) days after
Tenant's receipt of such findings. Tenant's failure to exercise its rights
hereunder within the Inspection Period shall be deemed a waiver of its right to
inspect or contest the method, accuracy or amount of such Annual Rental
Adjustment.
(b) If Landlord and Tenant agree that Landlord's calculation of the Annual
Rental Adjustment for the inspected calendar year was incorrect, the parties
shall enter into a written agreement confirming such undisputed error and then
Landlord shall make a correcting payment in full to Tenant within thirty (30)
days after the determination of the amount of such error or credit such amount
against future Additional Rent if Tenant overpaid such amount, and Tenant shall
pay Landlord within thirty (30) days after the determination of such error if
Tenant underpaid such amount. If Tenant provides Landlord with written notice
disputing the correctness of Landlord's statement, and if such dispute shall
have not been settled by agreement within thirty (30) days after Tenant provides
Landlord with such written notice, either Tenant or Landlord may submit the
dispute to a reputable firm of independent certified public accountants selected
by Tenant and Landlord, and the decision of such accountants shall be conclusive
and binding upon the parties. If such accountants decide that there was an
error, Landlord will make a correcting payment if Tenant overpaid such amount,
and Tenant shall pay Landlord if Tenant underpaid such amount. The fees and
expenses involved in such decision shall be borne equally by the parties;
provided if one party is required to pay the other an amount that is more than
ten percent (10%) of the amount such party asserted it owed, or less than ten
percent (10%) of the amount such party asserted it was entitled to receive, such
party shall pay all of such fees and expenses.
(c) All of the information obtained through Tenant's inspection (including,
without limitation, costs, expenses and income) as well as any compromise,
settlement or adjustment reached between Landlord and Tenant relative to the
results of the inspection shall be held in strict confidence by
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Tenant and its officers, agents, and employees; and Tenant shall cause its
independent representatives to be similarly bound. The obligations within the
preceding sentence shall survive the expiration or earlier termination of the
Lease.
Section 3.06. Maximum Increase in Operating Expenses. Beginning with the
first Annual Rental Adjustment in calendar year 2007, the Annual Rental
Adjustment shall not be increased, except as to Uncontrollable Expenses, by more
than Four Cents ($0.04) per square foot. "Uncontrollable Expenses" are Real
Estate Taxes utilities; insurance premiums; snow removal; the portion of fees
and assessments imposed by any covenants or owners' association that are
otherwise uncontrollable expenses herein (e.g., insurance premiums, snow
removal, utilities); management fees; and any other expenses which, except for
management fees, are charged by third parties and which Landlord cannot control
the amount of the expenses, but only to the extent such costs are includable as
Operating Expenses, without regard to the level of increase in any or all of the
above in any year or other period of time.
ARTICLE 4 - SECURITY DEPOSIT
Upon execution and delivery of this Lease by Tenant, Tenant shall deposit
the Security Deposit with Landlord as security for the performance by Tenant of
all of Tenant's obligations contained in this Lease. In the event of a default
by Tenant, Landlord may apply ail or any part of the Security Deposit to cure
all or any part of such default; provided, however, that any such application by
Landlord shall not be or be deemed to be an election of remedies by Landlord or
considered or deemed to be liquidated damages. Tenant agrees promptly, upon
demand, to deposit such additional sum with Landlord as may be required to
maintain the full amount of the Security Deposit. All sums held by Landlord
pursuant to this Article 4 shall be without interest and may be commingled by
Landlord. At the end of the Lease Term, Landlord shall return the Security
Deposit to Tenant or so much thereof as remains after application to cure any
uncured default or pay for repairs required to be made by Tenant pursuant to
Section 2.03 above or Section 7.02 below.
ARTICLE 5 - OCCUPANCY AND USE
Section 5.01. Use. Tenant shall use the Leased Premises for the
Permitted Use and for no other purpose without the prior written consent of
Landlord.
Section 5.02. Covenants of Tenant Regarding Use.
(a) Tenant shall (i) use and maintain the Leased Premises and conduct its
business thereon in a safe, careful, reputable and lawful manner, (ii) comply
with all covenants that encumber the Building and all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental authority or
agency, now in force or which may hereafter be in force, including, without
limitation, those which shall impose upon Landlord or Tenant any duty with
respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions, rules and regulations of Landlord, including the
Building Rules and Regulations attached hereto as EXHIBIT D and made a part
hereof, as may be reasonably modified from time to time by Landlord on
reasonable notice to Tenant.
(b) Tenant shall not do or permit anything to be done in or about the
Leased Premises that will in any way cause a nuisance, obstruct or interfere
with the rights of other tenants or occupants of the Park or injure them;
provided that the ordinary and customary operations of Tenant's business shall
not in themselves be deemed a nuisance, obstruction or interference. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of die Building of any of Landlord's directions, rules and
regulations, but agrees that any enforcement thereof shall be done uniformly.
Tenant shall not overload the floors of the Leased Premises. All damage to the
floor structure or foundation of the Building to the extent due to improper
positioning or storage of items or materials, but not to the extent due to a
construction defect, shall be repaired by Landlord at the sole expense of
Tenant, who shall reimburse Landlord immediately therefor upon demand. Landlord
warrants that the load bearing capacity for the Leased Premises is as set forth
in EXHIBIT E hereto and Landlord shall not be responsible for Tenant's failure
to abide by such capacity. Tenant shall not use the Leased Premises, nor allow
the Leased Premises to be used, for any purpose or in any manner that would (i)
invalidate any policy of insurance now or hereafter carried by Landlord on the
Building, or (ii) increase the rate of premiums payable on any such insurance
policy unless Tenant reimburses Landlord for any increase in premium charged.
Section 5.03. Landlord's Rights Regarding Use. (a) Landlord shall have the
right at any time, without notice to Tenant, to control, change or otherwise
alter the Common Areas in such manner as it deems necessary or proper, and (b)
Landlord, its agents, employees and contractors and any mortgagee of
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the Building shall have the right to enter any part of the Leased Premises at
reasonable times upon reasonable advance written notice (except in the event of
an emergency where no notice shall be required) for the purposes of examining or
inspecting the same (including, without limitation, testing to confirm Tenant's
compliance with this Lease), showing the same to prospective purchasers,
mortgagees or tenants, and making such repairs, alterations or improvements to
the Leased Premises or the Building as Landlord may deem necessary or desirable.
Landlord shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor. Notwithstanding the foregoing,
Landlord shall make commercially reasonable efforts to minimize interference
with Tenant's access or use of the Leased Premises when exercising its rights
under this Section 5.03. This provision is subject to Section 16.11.
ARTICLE 6 - UTILITIES
Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises,
excepting utilities used in constructing the Work. However, if any services or
utilities are jointly metered with other property, Landlord shall make a
reasonable determination of Tenant's proportionate share of the cost of such
utilities and services (at rates that would have been payable if such utilities
and services had been directly billed by the utilities or services providers)
and Tenant shall pay such share as Operating Expenses, subject to EXHIBIT C, to
Landlord within fifteen (15) days after receipt of Landlord's written statement.
Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility or other Building service and no such failure or
interruption shall entitle Tenant to terminate this Lease or withhold sums due
hereunder.
Notwithstanding anything in this Lease to the contrary, Landlord shall use
commercially reasonable efforts to promptly restore utility service and in the
event restoration of service is within Landlord's control and Landlord
negligently fails to restore such service within a reasonable time, thereby
causing the Leased Premises to be rendered untenantable (meaning that Tenant is
unable to use such space in the then normal course of its business in the Leased
Premises) by Tenant for the use permitted under this Lease for more than ten
(10) consecutive days, or three (3) consecutive business days if such
interruption is the result of a defect in the installation of such utility
service that was a part of the Work, after notice from Tenant to Landlord that
such service has been interrupted and a reasonable opportunity for Landlord to
restore such service. Minimum Annual Rent and Annual Rental Adjustment shall
xxxxx on a per diem basis for each day after such ten (10) day or three (3)
business day period, as the case may be, during which the Leased Premises remain
untenantable.
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS
Section 7.01. Repair and Maintenance of Building. Landlord shall make all
necessary repairs, replacements and maintenance to the roof, sprinkler systems,
exterior walls, foundation, structural frame of the Building and the parking and
landscaped areas and other Common Areas and shall perform its warranty
obligations under Section 2.02(h). The cost of such repairs, replacements and
maintenance shall be included in Operating Expenses to the extent provided in
Section 3.02: provided however, to the extent any such repairs, replacements or
maintenance are required because of the negligence, misuse or default of Tenant,
its employees, agents, contractors, customers or invitees, Landlord shall make
such repairs at Tenant's sole expense.
Section 7.02. Repair and Maintenance of Leased Premises. Tenant shall, at
its own cost and expense, maintain in good condition (normal wear and tear
excepted), the portions of the Leased Premises that are not the responsibility
of Landlord to maintain or repair under Landlord's warranty under Section
2.02(h) or as otherwise expressly provided in this Lease, regularly servicing
and promptly making all repairs and replacements thereto, including but not
limited to the electrical systems, heating and air conditioning systems, plate
glass, floors, windows and doors, and plumbing systems. Tenant shall obtain a
preventive maintenance contract on the heating, ventilating and air-conditioning
systems and provide Landlord with a copy thereof. The preventive maintenance
contract shall meet or exceed Landlord's standard maintenance criteria, as set
forth in EXHIBIT F, hereto, and shall provide for the inspection and maintenance
of the heating, ventilating and air conditioning system on at least a semiannual
basis.
Section 7.03. Alterations. Tenant shall not permit alterations in or to the
Leased Premises unless and until Landlord has approved the plans therefor in
writing. As a condition of such approval, Landlord may require Tenant to remove
the alterations and restore the Leased Premises upon termination of this Lease;
otherwise, all such alterations (other than trade fixtures) shall at Landlord's
option become a part of the realty and the property of Landlord, and shall not
be removed by Tenant. Tenant shall ensure that all alterations shall be made in
accordance with all applicable laws, regulations and building codes, in a good
and workmanlike manner and of quality equal to or better than the original
construction of the
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Building. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute Landlord's consent to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record within thirty
(30) days after filing. Tenant shall indemnify Landlord from ail costs, losses,
expenses and attorneys' fees in connection with any construction or alteration
and any related lien. Tenant agrees that at Landlord's option, Duke Construction
Limited Partnership or a subsidiary or affiliate of Landlord, who shall receive
a ten percent (10%) fee as Landlord's construction manager or general
contractor, shall perform all work on any alterations to the Leased Premises
unrelated to installation of Tenant Equipment.
ARTICLE 8 - INDEMNITY AND INSURANCE
Section 8.01. Release. All of Tenant's trade fixtures, merchandise,
inventory and all other personal property in or about the Leased Premises, the
Building or the Common Areas, which is deemed to include the trade fixtures,
merchandise, inventory and personal property of others located in or about the
Leased Premises or Common Areas at the invitation, direction or acquiescence
(express or implied) of Tenant (all of which property shall be referred to
herein, collectively, as "Tenant's Property"), shall be and remain at Tenant's
sole risk. Landlord shall not be liable to Tenant or to any other person for,
and Tenant hereby releases Landlord from (a) any and all liability for theft or
damage to Tenant's Property, and (b) any and all liability for any injury to
Tenant or its employees, agents, contractors, guests and invitees in or about
the Leased Premises, the Building or the Common Areas, except to the extent of
personal injury (but not property loss or damage) caused directly by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. Nothing contained in this Section 8.01 shall limit (or be deemed to
limit) the waivers contained in section 8.06 below. In the event of any conflict
between the provisions of Section 8.06 below and this Section 8.01, the
provisions of Section 8.06 shall prevail. This Section 8.01 shall survive the
expiration or earlier termination of this Lease.
Section 8.02. Indemnification by Tenant. Tenant shall protect, defend,
indemnify and hold Landlord, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses, and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels) to the extent (a) arising out of or relating to any
act, omission, negligence, or willful misconduct of Tenant or Tenant's agents,
employees, contractors, customers or invitees in or about the Leased Premises,
the Building or the Common Areas, (b) arising out of or relating to any of
Tenant's Property, or (c) arising out of any other act or occurrence within the
Leased Premises, in all such cases except to the extent of personal injury (but
not property loss or damage) caused directly by the negligence or willful
misconduct of Landlord, its agents, employees or contractors. Nothing contained
in this Section 8.02 shall limit (or be deemed to limit) the waivers contained
in Section 8.06 below. In the event of any conflict between the provisions of
Section 8.06 below and this Section 8.02. the provisions of Section 8.06 shall
prevail. This Section 8.02 shall survive the expiration or earlier termination
of this Lease.
Section 8.03. Indemnification by Landlord. Landlord shall protect, defend,
indemnify and hold Tenant, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels) to the extent arising out of or relating to any act,
omission, negligence or willful misconduct of Landlord or Landlord's agents,
employees or contractors. Nothing contained in this Section 8.03 shall limit (or
be deemed to limit) the waivers contained in Section 8.06 below. In the event of
any conflict between the provisions of Section 8.06 below and this Section 8.03,
the provisions of Section 8.06 shall prevail. This Section 8.03 shall survive
the expiration or earlier termination of this Lease.
Section 8.04. Tenant's Insurance.
(a) During the Lease Term (and any period of early entry or occupancy or
holding over by Tenant, if applicable), Tenant shall maintain the following
types of insurance, in the amounts specified below:
(i) Liability Insurance. Commercial General Liability Insurance (which
insurance shall not exclude blanket contractual liability, broad form property
damage, personal injury, or fire damage coverage) covering the Leased Premises
and Tenant's use thereof against claims for bodily injury or death and property
damage, which insurance shall provide coverage on an occurrence basis with a per
occurrence limit of not less than $3,000,000, and with general aggregate limits
of not less than $10,000,000 for each policy year, which limits may be satisfied
by any combination of primary and excess or umbrella per occurrence policies.
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(ii) Property Insurance. Special Form Insurance (which insurance shall
not exclude flood or earthquake) in the amount of the full replacement cost of
Tenant's Property and betterments (including alterations or additions performed
by Tenant pursuant hereto, but excluding those improvements, if any, made
pursuant to Section 2.02 above), which insurance shall include an agreed amount
endorsement waiving coinsurance limitations.
(iii) Worker's Compensation Insurance. Worker's Compensation insurance
in amounts required by applicable law.
(iv) Business Interruption Insurance. Business Interruption Insurance
with limits not less than an amount equal to two (2) years rent hereunder.
(b) All insurance required by Tenant hereunder shall (i) be issued by one
or more insurance companies reasonably acceptable to Landlord, licensed to do
business in the State in which the Leased Premises is located and having an AM
Best's rating of A IX or better, and (ii) provide that said insurance shall not
be materially changed, canceled or permitted to lapse on less than thirty (30)
days' prior written notice to Landlord. In addition, Tenant's insurance shall
protect Tenant and Landlord as their interests may appear, naming Landlord,
Landlord's managing agent, and any mortgagee requested by Landlord, as
additional insureds under its commercial general liability policies. On or
before the Commencement Date (or the date of any earlier entry or occupancy by
Tenant), and thereafter, within thirty (30) days prior to the expiration of each
such policy, Tenant shall furnish Landlord with certificates of insurance in the
form of XXXXX 25 or XXXXX 25-S (or other evidence of insurance reasonably
acceptable to Landlord), evidencing all required coverages, together with a copy
of the endorsements to Tenant's commercial general liability policy evidencing
primary and non-contributory coverage afforded to the appropriate additional
insureds. Upon Tenant's receipt of a request from Landlord, Tenant shall provide
Landlord with copies of all insurance policies, including all endorsements,
evidencing the coverages required hereunder. If Tenant fails to carry such
insurance and furnish Landlord with such certificates of insurance or copies of
insurance policies (if applicable). Landlord may obtain such insurance on
Tenant's behalf and Tenant shall reimburse Landlord upon demand for the cost
thereof as Additional Rent.
Section 8.05. Landlord's Insurance. During the Lease Term, Landlord shall
maintain the following types of insurance, in the amounts specified below (the
cost of which shall be included in Operating Expenses):
(a) Liability Insurance. Commercial General Liability Insurance (which
insurance shall not exclude blanket, contractual liability, broad form property
damage, personal injury, or fire damage coverage) covering the Common Areas
against claims for bodily injury or death and property damage, which insurance
shall provide coverage on an occurrence basis with a per occurrence limit of not
less than $3,000,000, and with general aggregate limits of not less than $
10,000,000 for each policy year, which limits may be satisfied by any
combination of primary and excess or umbrella per occurrence policies.
(b) Property Insurance. Special Form Insurance (which insurance snail not
exclude flood or earthquake) in the amount of the full replacement cost of the
Building, including, without limitation, any improvements, if any, made pursuant
to Section 2.02 above, but excluding Tenant's Property and any other items
required to be insured by Tenant pursuant to Section 8.04 above.
Section 8.06. Waiver of Subrogation. Notwithstanding anything contained in
this Lease to the contrary, Landlord and Tenant hereby waive any rights each may
have against the other on account of any loss of or damage to their respective
property, the Leased Premises, its contents, or other portions of the Building
or Common Areas arising from any risk which is required to be insured against by
Sections 8.04(a)(ii) and 8.05(b) above. The special form coverage insurance
policies maintained by Landlord and Tenant as provided in this Lease shall
include an endorsement containing an express waiver of any rights of subrogation
by the insurance company against Landlord and Tenant, as applicable.
ARTICLE 9-CASUALTY
In the event of total or partial destruction of the Building or the Leased
Premises by fire or other casualty, Landlord agrees promptly to restore and
repair same; provided, however, Landlord's obligation hereunder with respect to
the Leased Premises shall be limited to the reconstruction of such of the
leasehold improvements as were originally required to be made by Landlord
pursuant to Section 2.02 above, if any. Rent shall proportionately xxxxx during
the time that the Leased Premises or part thereof are unusable because of any
such damage. Notwithstanding the foregoing, if the Leased Premises are (a) so
destroyed that they cannot be repaired or rebuilt to a condition in which Tenant
can resume the Permitted Use within the Leased Premises to the extent existing
prior to the casualty within one hundred eighty (180) days from the casualty
date or such shorter number of days as the Target Agreement may
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require Tenant to resume business after a casualty (but not fewer that 120
days); provided, with an allowance for an additional twenty (20) days in the
event reconstruction or repairs are to occur in the months of January or
February; provided further that notwithstanding the Target Agreement, in the
event of a casualty, Tenant shall (i) exercise any right it may have in the
Target Agreement to extend such resumption period, and (ii) if no such extension
right is provided for in the Target Agreement, use commercially reasonable
efforts to obtain an extension of time from Target; (b) destroyed by a casualty
that is not covered by the insurance required hereunder or, if covered, such
insurance proceeds are not released by any mortgagee entitled thereto or are
insufficient to rebuild the Building and the Leased Premises; or (c) destroyed
or damaged prior to the Commencement Date such that Landlord will be unable to
Substantially Complete the Work per the Project Schedule; then, in case of a
clause (a) casualty, either Landlord or Tenant may, or, in the case of a clause
(b) casualty, then Landlord may, upon thirty (30) days' written notice to the
other party, terminate this Lease with respect to matters thereafter accruing
and, in the event of a clause (c) casualty, Tenant may terminate this Lease by
giving written notice to Landlord of such termination within ten (10) days of
such casualty. Tenant waives any right under applicable laws inconsistent with
the terms of this paragraph.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall he
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date possession thereof is so
taken. If all or any part of the Leased Premises shall be acquired by the
exercise of eminent domain so that the Leased Premises shall become impractical
for Tenant to use for the Permitted Use in Tenant's reasonable discretion,
Tenant may terminate this Lease by giving written notice to Landlord as of the
date possession thereof is so taken. All damages awarded shall belong to
Landlord; provided, however, that Tenant may claim its relocation, dislocation
damages and business interruption damages to the extent permitted by law.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Section 11.01. Assignment and Sublease.
(a) Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent. In the event of any
permitted assignment or subletting, Tenant shall remain primarily liable
hereunder. In the absence of a permitted assignment or subletting under Section
11.02. any extension, expansion, rights of first offer, rights of first refusal
or other options granted to Tenant under this Lease shall be rendered void and
of no further force or effect. The acceptance of rent from any other person
shall not be deemed to be a waiver of any of the provisions of this Lease or to
be a consent to the assignment of this Lease or the subletting of the Leased
Premises. Any assignment or sublease consented to by Landlord shall not relieve
Tenant (or its assignee) from obtaining Landlord's consent to any subsequent
assignment or sublease.
(b) By way of example and not limitation, Landlord shall be deemed to have
reasonably withheld consent to a proposed assignment or sublease if in
Landlord's opinion (i) the Leased Premises are or may be physically adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; (iii) the net worth of the proposed assignee or subtenant is
insufficient to meet the obligations hereunder and less than that of the Tenant
as of the date of this Lease, or (iv) buildings located in the Park and owned by
Landlord or its affiliates are not fully Leased and the prospective assignee or
subtenant is a current tenant at the Park or is a bona-fide third-party
prospective tenant seeking to lease space at then market rents and Landlord has
available space of sufficient size to accommodate the prospect's leasing
requirements. Landlord further expressly reserves the right to refuse to give
its consent to any subletting if the proposed rental rate is publicly advertised
to be less than the then current rental rate for similar premises in the Park.
If Landlord refuses to give its consent to any proposed assignment that is not
an assignment to a Permitted Transferee or subletting of substantially all of
the Leased Premises for substantially the balance of the Lease Term, Landlord
may, at its option, within thirty (30) days after receiving a request to
consent, terminate this Lease by giving Tenant thirty (30) days' prior written
notice of such termination, whereupon unless Tenant rescinds in writing its
request for Landlord's consent to such assignment or subletting within ten (10)
days of receipt of Landlord's termination notice, each party shall be released
from all further obligations and liability hereunder, except those which
expressly survive the termination of this Lease.
(c) If Tenant shall make any assignment or sublease, with Landlord's
consent, for a rental in excess of the rent payable under this Lease, Tenant
shall pay to Landlord fifty percent (50%) of any such excess rental upon
receipt. Tenant agrees to pay Landlord $500.00 upon demand by Landlord for
reasonable accounting and attorneys' fees incurred in conjunction with the
processing and documentation of any requested assignment, subletting or any
other hypothecation of this Lease or Tenant's interest in and to the Leased
Premises as consideration for Landlord's consent.
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Section 11.02. Permitted Transfer. Notwithstanding anything to the
contrary contained in Section 11.01 above, Tenant shall have the right, without
Landlord's consent, but upon ten (10) days' prior notice to Landlord, to (a)
sublet all or part of the Leased Premises to any related corporation or other
entity which controls Tenant, is controlled by Tenant or is under common control
with Tenant; (b) assign all or any part of this Lease to (x) any related
corporation or other entity which controls Tenant, is controlled by Tenant, or
is under common control with Tenant, (y) to a successor entity into which or
with which Tenant is merged or consolidated or which acquires substantially all
of Tenant's assets or property, or (z) to Target Corporation; or (c) effectuate
any public offering of Tenant's stock on the New York Stock Exchange or in the
NASDAQ over the counter market, provided that in the event of a transfer
pursuant to clause (b), the tangible net worth after any such transaction is not
less than the tangible net worth of Tenant as of the date hereof and provided
further that such successor entity assumes all of the obligations and
liabilities of Tenant (any such entity hereinafter referred to as a "Permitted
Transferee"). For the purpose of this Article 11 (i) "control" shall mean
ownership of not less than fifty percent (50%) of all voting stock or legal and
equitable interest in such corporation or entity, and (ii) "tangible net worth"
shall mean the excess of the value of tangible assets (i.e. assets excluding
those which are intangible such as goodwill, patents and trademarks) over
liabilities. Any such transfer shall not relieve Tenant of its obligations under
this Lease. Nothing in this paragraph is intended to nor shall permit Tenant to
transfer its interest under this Lease as part of a fraud or subterfuge to
intentionally avoid its obligations under this Lease (for example, transferring
its interest to a shell corporation that subsequently files a bankruptcy), and
any such transfer shall constitute a Default hereunder. Any change in control of
Tenant resulting from a merger, consolidation, or a transfer of partnership or
membership interests, a stock transfer, or any sale of substantially all of the
assets of Tenant that do not meet the requirements of this Section 11.02 shall
be deemed an assignment or transfer that requires Landlord's prior written
consent pursuant to Section 11.01 above.
ARTICLE 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale of the Building. Landlord shall have the right to sell
the Building at any time during the Lease Term, subject only to the rights of
Tenant hereunder; and such sale shall operate to release Landlord from liability
hereunder after the date of such conveyance but not as to matters that accrued
prior to the date of transfer. Nothing in this paragraph is intended to nor
shall permit Landlord to make a transfer as part of a fraud or subterfuge to
intentionally avoid its obligations under this Lease (for example, transferring
its interest to a shell corporation that subsequently files a bankruptcy), and
any such transfer shall constitute a default hereunder by Landlord.
Section 12.02. Estoppel Certificate. Within ten (10) days following
receipt of a written request from Landlord, Tenant shall execute and deliver to
Landlord, without cost to Landlord, an estoppel certificate in substantially
such form as Landlord may reasonably request certifying (a) that this Lease is
in full force and effect and unmodified or stating the nature of any
modification, (b) the date to which rent has been paid, (c) that there are not,
to Tenant's actual knowledge (without investigation being required), any uncured
defaults or specifying such defaults if any are claimed, and (d) any other
matters or state of facts reasonably required respecting the Lease. Such
estoppel may be conditioned or qualified as is reasonable, and may be relied
upon by Landlord and by any purchaser or mortgagee of the Building.
Section 12.03. Subordination. Subject to Tenant's rights of non-disturbance
set forth hereinafter, Landlord shall have the right to subordinate this Lease
to any mortgage, deed to secure debt, deed of trust or other instrument in the
nature thereof, and any amendments or modifications thereto (collectively, a
"Mortgage") presently existing or hereafter encumbering the Building by so
declaring in such Mortgage. Within ten (10) days following receipt of a written
request from Landlord, Tenant shall execute and deliver to Landlord, without
cost, any instrument that Landlord deems reasonably necessary or desirable to
confirm the subordination of this Lease. Notwithstanding the foregoing, if the
holder of the Mortgage shall take title to the Leased Premises through
foreclosure or deed in lieu of foreclosure, Tenant shall be allowed to continue
in undisturbed possession of the Leased Premises as provided for in this Lease
so long as Tenant is not in Default Landlord shall use commercially reasonable
efforts to obtain a non-disturbance agreement from any future mortgage of the
Building.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installments or Additional Rent
within five (5) days after the same is due.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
written notice thereof from Landlord;
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provided, however, that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required to cure, then such default shall be
deemed to have been cured if Tenant commences such performance within said
thirty (30) day period and thereafter diligently completes the required action
within a reasonable time.
(c) Tenant shall vacate or abandon all of the Leased Premises.
(d) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article II of this Lease.
(e) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
In addition to the defaults described above, the parties agree that if Tenant
receives written notice of a violation of the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such violations are
ultimately cured, then such conduct shall, at Landlord's option, represent a
separate Default.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord shall
have the following rights and remedies, in addition to those stated elsewhere in
this Lease and those allowed by law or in equity, any one or more of which may
be exercised without further notice to Tenant:
(a) Landlord may re-enter the Leased Premises and cure any Default of
Tenant, and Tenant shall reimburse Landlord as Additional Rent for any costs and
expenses which Landlord thereby incurs; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of Landlord's
action.
(b) Without terminating this Lease, Landlord may terminate Tenant's right
to possession of the Leased Premises, and thereafter, neither Tenant nor any
person claiming under or through Tenant shall be entitled to possession of the
Leased Premises, and Tenant shall immediately surrender the Leased Premises to
Landlord, and Landlord may re-enter the Leased Premises and dispossess Tenant
and any other occupants of the Leased Premises by any lawful means and may
remove their effects, without prejudice to any other remedy that Landlord may
have. Upon termination of possession, Landlord may (i) re-let all or any part
thereof for a term different from that which would otherwise have constituted
the balance of the Lease Term and for rent and on commercially reasonable terms
and conditions different from those contained herein, whereupon Tenant shall be
immediately obligated to pay to Landlord an amount equal to the present value
(discounted at the Prime Rate) of the difference between the rent provided for
herein and that provided for in any lease on commercially reasonable terms and
conditions covering a subsequent re-letting of the Leased Premises, for the
period which would otherwise have constituted the balance of the Lease Term or
the period reletting if a smaller period (the "Accelerated Rent Difference"), or
(ii) without re-letting, declare the present value (discounted at the Prime
Rate) of all rent which would have been due under this Lease for the balance of
the Lease Term less the fair market value of the Leased Premises for the balance
of the Lease Term to be immediately due and payable as liquidated damages (the
"Accelerated Rent"). Upon termination of possession, Tenant shall be obligated
to pay to Landlord (A) the Accelerated Rent Difference or the Accelerated Rent,
whichever is applicable, (B) all loss or damage that Landlord may sustain by
reason of Tenant's Default ("Default Damages"), which shall include, without
limitation, expenses of preparing the Leased Premises for re-letting,
demolition, repairs, tenant finish improvements, brokers' commissions and
attorneys' fees, and (C) all unpaid Minimum Annual Rent and Additional Rent that
accrued prior to the date of termination of possession, plus any interest and
late fees due hereunder (the "Prior Obligations").
(c) Landlord may terminate this Lease and declare the Accelerated Rent to
be immediately due and payable, whereupon Tenant shall be obligated to pay to
Landlord (i) the Accelerated Rent, (ii) all of Landlord's Default Damages, and
(iii) all Prior Obligations. It is expressly agreed and understood that all of
Tenant's liabilities and obligations set forth in this subsection (c) shall
survive termination.
(d) Landlord and Tenant acknowledge and agree that the payment of the
Accelerated Rent Difference or the Accelerated Rent as set above shall not be
deemed a penalty, but merely shall constitute payment of liquidated damages, it
being understood that actual damages to Landlord are extremely
-14-
difficult, if not impossible, to ascertain. Neither the filing of a
dispossessory proceeding nor an eviction of personalty in the Leased Premises
shall be deemed to terminate the Lease.
(e) Landlord may xxx for injunctive relief or to recover damages for any
loss resulting from the Default.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall be
in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may xxx for injunctive relief or to
recover damages for any loss directly resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or to withhold, offset or xxxxx
any sums due hereunder. This Section 13.03 shall not be applicable to Landlord's
obligation to perform the Work which is subject solely to the provisions of
Section 2.02.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment, including, insurance proceeds, rents and profits therefrom and
net proceeds of sale thereof; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the performance
or observance of any of the terms, conditions, covenants or obligations
contained in this Lease and the non-defaulting party obtains a judgment against
the defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys' fees incurred in connection
therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
[INTENTIONALLY OMITTED].
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
Section 15.01. Environmental Definitions.
(a) "Environmental Laws" shall mean all present or future federal, state
and municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, and the rules and
regulations of the Federal Environmental Protection Agency and any other
federal, state or municipal agency or governmental board or entity having
jurisdiction over the Leased Premises.
(b) "Hazardous Substances" shall mean those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws and petroleum
products.
Section 15.02. Restrictions on Tenant. Tenant shall not cause or permit the
use, generation, release, manufacture, refining, production, processing, storage
or disposal of any Hazardous Substances on, under or about the Leased Premises,
or the transportation to or from the Leased Premises of any Hazardous
Substances, except as necessary and appropriate for its Permitted Use in which
case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry.
-15-
Section 15.03. Notices, Affidavits, Etc. Tenant shall immediately (a)
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of any Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises, and
(b) deliver to Landlord any notice received by Tenant relating to (a)(i) and
(a)(ii) above from any source, Tenant shall execute affidavits, representations
and the like within five (5) days of Landlord's request therefor concerning
Tenant's best knowledge and belief regarding the presence of any Hazardous
Substances on, under or about the Leased Premises.
Section 15.04. Tenant's Indemnification. Tenant shall indemnify Landlord
and Landlord's managing agent from any and all claims, losses, liabilities,
costs, expenses and damages, including attorneys' fees, costs of testing and
remediation costs, incurred by Landlord in connection with any breach by Tenant
of its obligations under this Article 15. The covenants and obligations under
this Article 15 shall survive the expiration or earlier termination of this
Lease.
Section 15.05. Existing Conditions. Notwithstanding anything contained in
this Article 15 to the contrary, Tenant shall not have any liability to Landlord
under this Article 15 resulting from any conditions existing, or events
occurring, or any Hazardous Substances existing or generated, at, in, on, under
or in connection with the Leased Premises prior to the Commencement Date of
this Lease (or any earlier occupancy of the Leased Premises by Tenant) except to
the extent Tenant knowingly exacerbates the same.
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in accordance
with the laws of the State where the Building is located.
Section 16.03. Force Majeure. Landlord and Tenant (except with respect to
the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is due to
an event of force majeure. Landlord shall not claim a weather-related force
majeure event until it has incurred fifteen (15) days of weather-related delays
in which it is unable to perform the Work (which fifteen days Landlord has
included in the Project Schedule) and Landlord shall provide to Tenant written
notice of the date when such fifteen (15) days have been exhausted and written
notice of any force majeure claims that Landlord may assert. Landlord may claim
any delay days dating back to November 1,2005.
Section 16.04. Examination of Lease. Submission of this instrument by
Landlord to Tenant for examination or signature does not constitute an offer by
Landlord to lease the Leased Premises. This Lease shall become effective, if at
all, only upon the execution by and delivery to both Landlord and Tenant.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Leased Premises on the terms contained herein.
Section 16.05. Indemnification for Leasing Commissions. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers and that no other party
is entitled, as a result of the actions of the respective party, to a commission
or other fee resulting from the execution of this Lease. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be entitled thereto. Landlord shall pay any
commissions due Brokers based on this Lease pursuant to separate agreements
between Landlord and Brokers.
Section. 16.06. Notices. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by UPS, Federal Express, DHL, or a similar reputable
overnight courier or mailed by certified mail, postage prepaid, to the party who
is to receive such, notice at the address specified in Section 1.01(1). If sent
by overnight courier, the notice shall be deemed to have been given and received
one (1) business day after sending. If mailed, the notice shall be deemed to
have been given on the date that is three (3) business days following mailing.
Either party may change its address by giving written notice thereof to the
other party.
Section 16.07. Partial Invalidity: Complete, Agreement. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed
-16-
upon or understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 16.08. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent annual report prepared as of the end of Tenant's fiscal year.
Without limiting the foregoing, in the event that Tenant is no longer a publicly
traded company, Tenant shall provide Landlord on an annual basis, within ninety
(90) days following the end of Tenant's fiscal year, a copy of Tenant's most
recent financial statements prepared as of the end of Tenant's fiscal year. Such
financial statements shall be signed by Tenant or an officer of Tenant, if
applicable, who shall attest to the truth and accuracy of the information set
forth in such statements, or if the Minimum Annual Rent hereunder exceeds
$100,000.00, said statements shall be certified and audited. All financial
statements provided by Tenant to Landlord hereunder shall be prepared in
conformity with generally accepted accounting principles, consistently applied.
Section 16.09. Representations and Warranties.
(a) Tenant hereby represents and warrants that (i) Tenant is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Tenant is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Tenant has
been properly authorized to do so, and such execution and delivery shall bind
Tenant to its terms.
(b) Landlord hereby represents and warrants that (i) Landlord is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Landlord is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Landlord has
been properly authorized to do so, and such execution and delivery shall bind
Landlord to its terms.
Section 16.10. Signage. Subject to Section 2.02(c), Tenant may, at its own
expense, erect a sign concerning the business of Tenant that shall be in keeping
with the decor and other signs on the Building. All signage (including the
signage described in the preceding sentence) in or about the Leased Premises
shall be first approved by Landlord and shall be in compliance with the any
codes and recorded restrictions applicable to the sign or the Building. The
location, size and style of all signs shall be approved by Landlord. Tenant
agrees to maintain any sign in good state of repair, and upon expiration of the
Lease Term, Tenant agrees to promptly remove such signs and repair any damage to
the Leased Premises.
Section 16.11. Parking. Tenant shall be entitled to the exclusive use of
the parking spaces and trailer areas designated for the Building by Landlord and
shown on EXHIBIT A and a security fence may be erected around said exclusive
parking areas for trailers, for so long as Tenant leases the entire Leased
Premises of approximately 646,468 rentable square feet. If there are other
tenants of the Building, subject to Tenant's exclusive rights above, Tenant
agrees not to overburden the parking facilities and agrees to cooperate with
Landlord and other tenants in the use of the parking facilities. If there are
other tenants of the Building, subject to Tenant's exclusive rights above.
Landlord reserves the right in its reasonable discretion to determine whether
parking facilities are becoming crowded and, in such event, to allocate parking
spaces between Tenant and other tenants. If there are other tenants of the
Building, subject to Tenants exclusive rights above, there will be no assigned
parking unless Landlord, in its sole discretion, deems such assigned parking
advisable. No vehicle may be repaired or serviced in the parking area and any
vehicle brought into the parking area by Tenant, or any of Tenant's employees,
contractors or invitees, and reasonably deemed abandoned by Landlord will be
towed and all costs thereof shall be borne by the Tenant. If there are other
tenants of the Building, subject to Tenant's exclusive rights above, all
driveways, ingress and egress, and all parking spaces are for the joint use of
all tenants. There shall be no parking permitted on any of the streets or
roadways located within the Park. In addition, Tenant agrees that its employees
will not park in the spaces designated visitor parking.
Section 16.12. Consent. Where the consent or approval of a party is
required or requested, such consent or approval shall not be unreasonably
withheld, conditioned or delayed.
Section 16.13. Time. Time is of the essence of each term and provision of
this Lease.
Section 16.14. Agency Disclosure. Tenant acknowledges having previously
received the Agency Disclosure Statement attached. Duke Realty Services Limited
Partnership, set forth in Section 1.01(j) above as Landlord's broker, its agents
and employees, have represented only Landlord, and have
-17-
not in any way represented Tenant, in the marketing, negotiation, and completion
of this lease transaction.
Section 16.15. Right of First Refusal.
(a) Provided that (i) no default has occurred and is then continuing, (ii)
the creditworthiness of Tenant is then reasonably acceptable to Landlord, and
(iii) Tenant originally named herein or a Permitted Transferee remains in
possession of and has been continuously operating in the entire Leased Premises
throughout the Lease Terra, Tenant shall have a continuing right of first
refusal ("Refusal Option") to lease additional space to be constructed as either
an expansion of the Building or in a separate building to be built near the
Building by Landlord, on the 16.2 acre parcel of land located contiguous to the
Site (the "Contiguous Land") as shown on the attached EXHIBIT A ("Refusal
Space"). Prior to entering into any lease for the Refusal Space, Landlord shall
notify Tenant in writing ("Landlord's Notice") of Landlord's receipt of an
arms-length, offer to lease such space that Landlord is willing to accept from a
bona fide third party offeror ("Bona Fide Offer") and setting forth all of the
material terms of the Bona Fide Offer and such other terms as are herein
provided. Tenant shall have seven (7) days after Tenant receives Landlord's
Notice in which to notify Landlord in writing of its election to lease the
Refusal Space upon the terms set forth in Landlord's Notice. If Tenant declines
to exercise this Refusal Option or fails to give such written notice within the
time period required. Tenant shall be deemed to have waived this Refusal Option
as to the transaction contemplated in the Bona Fide Offer, and thereafter this
Refusal Option shall be void and of no further force or effect, and Landlord
shall be free to lease the Refusal Space to the bona fide offeror on the terms
in the Bona Fide Offer.
(b) If Tenant shall exercise the Refusal Option, the parties shall enter
into an amendment to this Lease adding the Refusal Space to the Leased Premises
upon the terms and conditions set forth in the Bona Fide Offer and making such
other modifications to this Lease as are appropriate under the circumstances.
(c) If Tenant does not exercise its Refusal Option, in the event Landlord
expands the Building or constructs a new building on the Contiguous Land, Tenant
shall cooperate with Landlord, at no cost to Tenant, in the construction of such
expansion or new Building, including, without limitation, assuring access of
construction personnel and equipment to the Contiguous Land consistent with
Tenant's obligations to furnish security measures at the Leased Premises under
the Target Agreement, providing for changes in utilities, including shared
utilities to the expansion space and/or new building, and providing for
reasonable changes or additions to the parking facilities that do not reduce the
amount of parking allocated to Tenant as shown on EXHIBIT A and do not relocate
such parking areas more than 50 feet from their locations as shown in EXHIBIT A.
In the event any portion of the Building, including any expansion thereto, or
any new building on the Contiguous Land is leased to one or more tenants other
than Tenant, Landlord shall at its sole cost alter any outside security
facilities, such as fencing and/or guard shacks, to permit access by other
tenants, their agents, employees, contractors, customers and invitees to the
portion of the Building or the new building leased by such tenant(s) and the
parking and other Common Areas associated therewith.
Section 16.16. Options to Extend.
(a) Grant and Exercise of Option. Provided that (i) no default has occurred
and is then continuing (ii) the creditworthiness of Tenant is not less than that
of the date hereof and (iii) Tenant originally named herein or a Permitted
Transferee remains in possession of and has been continuously operating in the
entire Leased Premises throughout the term immediately preceding the Extension
Term (as defined below), Tenant shall have the option to extend the Lease Term
for two (2) additional periods of three (3) years each (the "Extension
Term(s)"). Each Extension Term shall be upon the same terms and conditions
contained in the Lease except (x) this provision giving two (2) extension
options shall be amended to reflect the remaining options to extend, if any, and
(y) any improvement allowances or other concessions applicable to the Leased
Premises under the Lease shall not apply to the Extension Term, and (z) the
Minimum Annual Rent shall be adjusted as set forth below (the "Rent
Adjustment"). Tenant shall exercise each option by (i) delivering to Landlord,
no later than nine (9) months prior to the expiration of the preceding term,
written notice of Tenant's desire to extend the Lease Term. Tenant's failure to
timely exercise such option shall be deemed a waiver of such option and any
succeeding option. Landlord shall notify Tenant of the amount of the Rent
Adjustment no later than ninety (90) days prior to the commencement of the
Extension Term. Tenant shall be deemed to have accepted the Rent Adjustment if
it fails to deliver to Landlord a written objection thereto within five (5)
business days after receipt thereof. If Tenant properly exercises its option to
extend, Landlord and Tenant shall execute an amendment to the Lease (or, at
Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term within thirty (30)
days after Tenant's acceptance (or deemed acceptance) of the Rent Adjustment.
-18-
(b) Rent Adjustment. The Minimum Annual Rent for the applicable Extension
Term shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective renewal tenants of the Building for space of comparable
size and quality and with similar or equivalent improvements as are found in the
Building, and if none, then in similar buildings in the Park, provided, however,
that if Tenant delivers to Landlord a written objection to Landlord's
calculation of the Rent Adjustment within five (5) business days after Tenant's
receipt of Landlord's determination of the Rent Adjustment, and the parties
cannot agree on a Rent Adjustment within ten (10) days after Tenant's written
objection then Tenant may retract its exercise of its option to extend, or
Tenant may choose arbitration to determine the Rent Adjustment. If Tenant
chooses arbitration, Tenant shall give Landlord written notice of its desire to
seek arbitration within three (3) days after expiration of such ten (10) day
period ("Arbitration Notice"). Within ten (10) days after Tenant provides
Landlord with its Arbitration Notice, the parties shall each appoint an
appraiser to determine the Rent Adjustment for the Leased Premises. Each
appraiser so selected shall be either an MAI appraiser or a licensed real estate
broker, each having at least ten (10) years prior experience in the appraisal or
leasing of comparable space in the metropolitan area in which the Leased
Premises are located and with a working knowledge of current rental rates and
practices. If the two appraisers cannot agree upon the Rent Adjustment for the
Leased Premises within twenty (20) days after their appointment, then, within
ten (10) days after the expiration of such twenty (20) day period, the two
appraisers shall select a third appraiser meeting the above criteria. Once the
third appraiser has been selected as provided for above, then such third
appraiser shall within ten (10) days after appointment make its determination of
the Rent Adjustment. The average of the three (3) determinations of the Rent
Adjustment shall be used as the Minimum Annual Rent for the applicable Extension
Term and shall be binding on both Landlord and Tenant. Landlord and Tenant shall
each bear the cost of its appraiser and shall share the cost of the third. If
Tenant fails to provide the Arbitration Notice as provided above, then Tenant's
exercise of its option to extend shall be deemed retracted.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Corporation,
its general partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Senior Vice President
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxx, by me known and by me known to be the Senior Vice
President of Duke Realty Corporation, an Indiana corporation, the general
partner of Duke Realty Limited Partnership, an Indiana limited partnership, who
acknowledged the execution of the foregoing "Lease" on behalf of said
partnership.
WITNESS my hand and Notarial Seal this 28th day of December, 2005.
(STATE SEAL) XXXX XXXXXXXXX /s/ Xxxx Xxxxxxxxx
Notary Public State of Ohio ---------------------------
My Commission Expires March 8, 2010 Notary Public
----------------------------------------
(Printed Signature)
My Commission Expires: _____________
My County of Residence: XXXXXXXX
-00-
XXXXXX:
INNOTRAC CORPORATION,
a Georgia corporation
By: /s/ XXXXXX XXXXX
------------------------------------
Name: XXXXXX XXXXX
Title: VP of Logistics
STATE OF GA )
) SS:
COUNTY OF GWINNETT )
Before me, Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxx Xx, by me known and by me known to be the VP, Logistics
of Innotrac Corporation, a Georgia corporation, who acknowledged the execution
of the foregoing "Lease" on behalf of said corporation.
WITNESS my hand and Notarial Seal this 23 day of December, 2005.
/s/ XXXXXX XXXXXXXX
----------------------------------------
Notary Public
/s/ XXXXXX XXXXXXXX
----------------------------------------
(Printed Signature)
My Commission Expires: 10/19/09 (NOTARY PUBLIC STAMP)
My County of Residence: Gwinnett My Comm. Expires June 19, 2009
-20-
(FLOOR PLAN)
EXHIBIT A-1
LEASE EXHIBIT LEGAL DESCRIPTION
29.69 ACRES
Situated in the City of Hebron, Boons County, Kentucky, being part of the
22.9439 acre tract of land heretofore conveyed to Duke Weeks Realty,
Ltd. by deed recorded in Deed Book 808, Page 496 (all references to
deeds and plats cited herein are of the Xxxxx County, Kentucky
records) and part of the 25.3375 acre tract of land heretofore
conveyed to Duke Weeks Realty, Ltd. by deed recorded in Deed Book
808, Page 487, the perimeter thereof being more particularly
described as follows:
Beginning at a stone monument found at the northeasterly corner of Lot 21 of
Mars Hill Subdivision, as recorded on Plat 235B;
Thence from said beginning point, along the westerly line of the said
25.3375 acre tract, North 26 degrees 34'34" East a distance of
1,032.35 feet to a point, being the westerly terminus of the proposed
southerly right-of-way line of Xxxxxx Xxxx;
Thence through the saw 25.3375 acre tract along the said proposed southerly
right-of-way line, in part, and the existing southerly right-of-way
line of Xxxxxx Xxxx, in part, South 57 degrees 36'02" (East, a
distance of 879.54 feet to the northeast corner of the said 25.3375
acre tract;
Thence through the said 22.9439 acre tract, North 63 degrees 25'26" West, a
distance of 875.00 feet to the westerly property line of said 22.9439
acre tract.
Thence along the westerly line of the said 22.9439 acre tract, North
26 degrees 34'34" East, a distance of 490.17 feet to the point of
beginning;
Containing 29.6867 acres, more or less, and being subject to all other
easements, restrictions, covenants and/or conditions of record.
Exhibit A-1
Page 1 of 1
EXHIBIT B-1
BUILDING PERMIT ISSUE OCTOBER 24, 2005
INDEX OF SPECIFICATIONS
DIVISION 0 - BIDDING AND CONTRACT REQUIREMENTS:
Section 00020 Notice to Bidders ......................................... 1
Section 00104 Instructions to Bidders ................................... 3
Section 00310 Bid Form .................................................. 12
Section 00500 Subcontract Agreement Forms ............................... 1
Agreement Between Contractor and Subcontractor ............ 25
DIVISION 1 - GENERAL REQUIREMENTS:
Section 01010 Summary of Work ........................................... 3
Section 01020 Allowances ................................................ 2
Section 01041 Project Coordination ...................................... 3
Section 01045 Construction Safety ....................................... 12
Section 01050 Field Engineering ......................................... 1
Section 01100 Alternates ................................................ 1
Section 01200 Project Meeting ........................................... 2
Section 01310 Construction Schedules .................................... 1
Section 01320 CAD Drawing Standards ..................................... 1
Section 01340 Shop Drawings, Product Data and Samples ................... 3
Section 01350 Product Handling .......................................... 1
Section 01410 Independent Testing Laboratory Servies .................... 5
Section 01501 Temporary Protection ...................................... 1
Section 01505 Temporary Equipment and Work .............................. 1
Section 01510 Temporary Utilities and services .......................... 2
Section 01518 Temporary Fire Protection ................................. 2
Section 01551 Access and Haul Roads, Parking and Traffic Regulations .... 1
Section 01563 Water Control ............................................. 1
Section 01580 Project Identification and Signs .......................... 1
Section 01590 Field Office and Sheds .................................... 2
Section 01600 Material and Equipment .................................... 1
Section 01620 Storage and Protection .................................... 2
Section 01630 Substitutions and Product Options ......................... 2
Section 01700 Contract Close-out ........................................ 2
Section 01710 Cleaning .................................................. 1
Section 01715 Hazardous Waste ........................................... 2
Section 01720 Project Record Documents .................................. 1
Section 01730 Operating and Maintenance Data ............................ 2
Section 01740 Warranties and Bonds ...................................... 1
Section 01810 Soil Investigation Report ................................. 1
DIVISION 2 - SITEWORKS:
Section 02230 Site Clearing ............................................. 5
Section 02260 Excavation Support and Protection ......................... 4
Section 02300 Earthwork ................................................. 9
Section 02510 Water Distribution ........................................ 9
Section 02530 sanitary Sewerage ......................................... 7
Section 02630 Storm Drainage ............................................ 7
Section 02741 Hot-Mix Asphalt Paving .................................... 6
Section 02751 Cement Concrete Pavement .................................. 10
Section 02920 Lawns and Grasses ......................................... 12
DIVISION 3 - CONCRETE:
Section 03300 Cast-In-Place Concrete .................................... 16
Section 03410 Structural Precast Concrete - Plant ....................... 7
Section 03430 Precast Panel Modifications ............................... 3
DIVISION 4 - MASONRY:
Section 04810 Unit Masonry .............................................. 9
Exhibit B-1
Page 1 of 3
EXHIBIT B-1
DIVISION 5 - METALS:
Section 05120 Structural Steel .......................................... 6
Section 05220 Steel Joists and Joist Girders ............................ 3
Section 05310 Steel Deck ................................................ 3
Section 05500 Metal Fabrications ........................................ 3
Section 05511 Metal Stairs .............................................. 10
DIVISION 6 - XXXXX & PLASTICS:
Section 06105 Miscellaneous Carpentry ................................... 3
Section 06402 Interior Architectural Woodwork ........................... 4
DIVISION 7 - THERMAL/MOISTURE:
Section 07210 Insulation ................................................ 3
Section 07241 Exterior Insulation and Finish Systems - Class PB ......... 5
Section 07531 E.P.D.M. Membrane Roofing ................................. 6
Section 07620 Flashing and Sheet Metal .................................. 5
Section 07720 Roof Hatch ................................................ 4
Section 07920 Joint Sealers ............................................. 8
DIVISION 8 - DOORS & WINDOWS:
Section 08110 Steel Doors and Frames .................................... 4
Section 08200 Wood Doors ................................................ 4
Section 08361 Sectional Overhead Doors .................................. 5
Section 08410 Aluminum entrances and Storefronts ........................ 11
Section 08711 Finish Hardware ........................................... 8
Section 08800 Glass and Glazing ......................................... 8
DIVISION 9 - FINISHES:
Section 09250 Gypsum Wallboard Systems .................................. 5
Section 09300 Tile ...................................................... 5
Section 09510 Acoustical Cellings ....................................... 3
Section 09650 Resilient Flooring ........................................ 5
Section 09680 Carpeting ................................................. 5
Section 09775 Fiberglass Reinforced Polyester Panels (FRP) .............. 3
Section 09900 Painting and Finishing .................................... 6
DIVISION 10 - SPECIALTIES:
Section 10150 Toilet accessories ........................................ 3
Section 10520 Fire Protection Specialties ............................... 6
DIVISION 11 - EQUIPMENT:
Section 11160 Loading Dock Equipment .................................... 3
DIVISION 12 - FURNISHINGS:
Section 12491 Horizontal Louver Blinds .................................. 3
Exhibit B-1
Page 2 of 3
EXHIBIT B-1
DIVISION 15 - MECHANICAL:
Section 15000 Table of Contents Mechanical............................... 3
Section 1S010 Basic Mechanical Requirements.............................. 21
Section 15030 Eletrical Provisions of Mechanical Work................... 4
Section 15045 Shell Industrial Space Design Parameters................... 6
Section 15140 Pipe Hangers, Supports, and Anchors........................ 4
Section 15190 Mechanical Identification.................................. 3
Section 15300 Fire Protection Systems.................................... 8
Section 15400 Plumbing Piping Systems.................................... 11
Section 15420 Floor and Roof Drains...................................... 3
Section 15440 Plumbing Fixtures and Trim................................. 6
Section 15458 Electric Water Heaters..................................... 2
Section 15854 Roof Top Constant Air Volume Units......................... 8
Section 15856 Gas-Fired Heating and Ventilating Units (80/20)............ 5
Section 15860 Fans and Ventilators....................................... 4
Section 15891 Ductwork................................................... 10
Section 15910 Ductwork Accessories....................................... 5
Section 15940 Air Outlets and Inlets..................................... 2
Section 15990 HVAC Operational Testing, Adjusting, and Balancing......... 4
Section 15995 Shell Mechanical Commissioning............................. 34
DIVISION 16 - ELECTRICAL:
Section 16000 Table of Contents Electrical............................... 2
Section 16010 Basic Electrical Requirements.............................. 21
Section 16040 Shell Office Space Design Parameters....................... 8
Section 16041 Interior Finish Office Design Parameters................... 6
Section 16045 Shell Industrial Space Design Parameters................... 4
Section 16046 Interior Finish Industrial Design Parameters............... 5
Section 16110 Electrical Raceways and Fittings........................... 8
Section 16120 Cable, Wire, and Connectors................................ 7
Section 16121 Electrical Connections for Equipment....................... 3
Section 16130 Electrical Boxes and Fittings.............................. 7
Section 16140 Wiring Devises............................................. 4
Section 16401 Electrical Service Entrance................................ 3
Section 16425 Switchboards............................................... 6
Section 16440 Safety and Disconnect Switches............................. 3
Section 16450 Electrical Grounding....................................... 4
Section 16460 Transformers............................................... 5
Section 16465 Busway..................................................... 4
Section 16470 Panelboards and Enclosures................................. 4
Section 16475 Fuses...................................................... 2
Section 16480 Motor Control Centers...................................... 6
Section 16482 Motor Starters............................................. 4
Section 16501 Lighting Fixtures and Lamps................................ 6
Section 16625 Emergency Power System..................................... 10
Section 16670 Lighting Protection System................................. 3
Section 16720 Fire Alarm System.......................................... 12
Section 16721 Combination Fire Alarm System.............................. 13
Section 16725 Fire Supervisory System.................................... 8
Section 16740 Telephone System........................................... 2
Section 16780 Closed Circuit Television System........................... 4
Section 16945 Miscellaneous Electrical Controls and Control Wiring....... 4
Section 16995 Shell Electrical Commissioning............................. 17
Section 16996 Interior Finish Electrical Commissioning .................. 5
Exhibit B-1
Page 3 of 3
EXHIBIT B-2
INNOTRAC PRE-CONSTRUCTION SCHEDULE
[CHART]
Exhibit B-2
Page 1 of 2
EXHIBIT B-2
INNOTRAC PRE-CONSTRUCTION SCHEDULE
[CHART]
Exhibit B-2
Page 2 of 2
EXHIBIT B-3
CONTRACTOR'S AND VENDORS'
"JOBSITE RULES OF CONDUCT"
In an effort to maintain a high standard of professionalism, we have prepared
the following "Rules of Conduct". Your personnel's compliance with these rules
will help us collectively acquire Complete Customer Satisfaction.
- Conduct yourselves as guests in tenant spaces as well as in the
building. No radios or audio equipment are permitted in Duke
buildings.
- No graffiti.
- Be neat, clean and QUIET while in or NEAR, occupied space. Protect
hallway and entries with temporary carpet runners.
- No vehicles to be brought into the buildings, parted in loading areas
or at entries.
- Dress properly. Shirts with at least 3" sleeves, long pants and shoes
are required. Hard hats should be worn where applicable.
- Identification or uniform is required when working in occupied space.
- Always check-in at front desk in an occupied space.
- Do not use Tenants' telephones.
- REMOVE ALL DIRT AND DEBRIS CAUSED BY YOUR ACTIVITY. PROJECT TO BE
BROOM SWEPT AND TRASH REMOVED EVERY NIGHT BY EACH RESPECTIVE TRADE.
- Do not smoke or use tobacco.
- Loud and/or foul language is prohibited.
- Do not bring food or drink into CARPETED areas.
- Do not leave material or debris in occupied or vacant spaces.
- Exterior exits and entrances to suites are the responsibility of all
contractors to be locked at night. Also, turn off all lights at night.
- Generally thermostats are to be left alone. However, in vacant spaces
and construction areas, thermostats are not to be set above 72 degrees
in winter or below 74 degrees in summer.
- Loading docks are for loading and unloading only. No parking at dock
level to check on your workmen.
- In dealing with tenants, be courteous at all times, keep all negative
comments to yourself or discuss them with job staff personnel away
from the tenant space.
- Special care is to be taken to protect Tenants' furnishings and
finishes, (i.e., dust protection, etc.).
- No work causing noxious odors is to be done within any building. Any
floor sealing or other such odoriferous work is to be coordinated with
Duke Property Management personnel to allow notification and
coordination with the tenants and adjoining tenants.
- Notify Duke Property Management personnel 72 hours prior to any work
causing disruption of utilities, or if access is needed in an
adjoining tenant space (i.e. before any drilling is started).
- Ail contractors and vendors to use only freight elevators or protected
elevators where available.
NON-COMPLIANCE WITH THESE RULES MAY BE CONSIDERED GROUNDS FOR REMOVAL FROM A
DUKE PROTECT,
Exhibit B-3
Page 1 of 1
EXHIBIT B-4
LETTER OF UNDERSTANDING
Duke Realty Limited Partnership
Attn.: Senior Property Manager
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
RE: Lease Agreement between Duke Realty Limited Partnership, an Indiana
limited partnership ("Landlord") and Innotrac Corporation, a Georgia
corporation ("Tenant") for the Leased Premises located at 0000 Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000 (the "Leased Premises"), within Hebron
Industrial Park (the "Park") dated _________________, 2005 (the
"Lease").
Dear _______________________________:
The undersigned, on behalf of Tenant, certifies to Landlord as follows:
1. The Commencement Date under the Lease is ____________________________.
2. The rent commencement date is _______________________________________.
3. The expiration date of the Lease is _________________________________.
4. The Lease (including amendments) is the entire agreement between
Landlord and Tenant as to the leasing of the Leased Premises and is in
full force and effect.
5. The Landlord has completed the portion of the Work (as defined in the
Lease) associated with the Initial Space (excluding punchlist items as
agreed upon by Landlord and Tenant), if any, and Tenant has accepted
the Initial Space as of the Commencement Date.
6. To the best of the undersigned's knowledge, there are no uncured
events of default by either Tenant or Landlord under the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of Understanding
to be executed this __ day of _________________, 2005.
INNOTRAC CORPORATION,
a Georgia corporation
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Exhibit B-4
Page 1 of 1
EXHIBIT B-5
MATERIALS HANDLING CONSULTANT'S REQUIREMENTS
(1) Concrete drive-up ramp for entrance into the Building.
(2) Lighting installed in the Building sufficient to permit installation
of Tenant Equipment in the Warehouse Space,
(3) Sufficient power to allow use of hand tools.
(4) Floor space free and clear of obstructions as necessary for Tenant to
begin installation of Tenant Equipment in the Warehouse Space.
(5) Area available outside of Building for dropping of up to five (5)
tractor trailers for staging.
Exhibit B-5
Page 1 of 1
EXHIBIT C
OPERATING EXPENSE EXCLUSIONS
(1) costs and expenses of correction of defects in the design or construction
of the Work and any part thereof;
(2) costs and expenses to the extent covered by any construction warranty or
placed under manufacturers' warranties;
(3) costs and expenses associated with financing incurred by Landlord or its
affiliates, including principal, interest, amortization and/or amounts owed
under loan documents;
(4) impact fees;
(5) development fees;
(6) ground lease rental;
(7) costs of items considered capital repairs, replacements, improvements and
equipment customarily treated as capital expenses under generally accepted
accounting principles ("Capital Items") except to the extent such repairs,
replacements, improvements or equipment are intended to achieve a savings
in Operating Expenses, but only to the extent of actual savings, or are
made for the purpose of complying with governmental laws, rules and
regulations enacted or made applicable to the Site or the Building after
the date of construction;
(8) rentals for items (except when needed in connection with normal repairs and
maintenance of permanent systems) which if purchased, rather than rented,
would constitute a Capital Item that is not permitted in Item 11
(excluding, however, equipment not affixed to the Building that is used in
providing janitorial or similar services)
(9) costs and expenses incurred by Landlord for the repair of damage to the
Building to the extent that Landlord is reimbursed by insurance proceeds;
(10) costs and expenses, including permit, license and inspection costs,
incurred with respect to the installation of tenant or other occupants'
improvements in the Building or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for tenants or
other occupants of the Building;
(11) depreciation, amortization and interest payments, except on materials,
tools, supplies and vendor-type equipment purchased by Landlord to enable
Landlord to supply services Landlord might otherwise contract for with a
third party where such depreciation, amortization and interest payments
would otherwise have been included in the charge for such third party's
services, all as reasonably determined by Landlord, and when depreciation
or amortization is permitted or required, the item will be amortized over
its reasonably anticipated useful life;
(12) marketing costs, including without limitation, leasing commissions,
attorneys' fees in connection with the negotiation and preparation of
letters, deal memos, letters of intent, leases, subleases or assignments,
space planning costs, and other costs and expenses incurred in connection
with lease, sublease or assignment negotiations, and transactions with
present or prospective tenants or other occupants of the Building;
(13) costs and expenses in connection with services or other benefits that are
not available to Tenant or for which Tenant is charged for directly but
that are provided to another tenant or occupant of the Building at a lesser
cost, but only as to the difference between the amount charged to Tenant
and another tenant or occupant;
(14) costs and expenses incurred by Landlord due to the violation by Landlord or
any tenant of the terms and conditions of any lease of space in the
Building;
(15) overhead and profit increment paid to subsidiaries or affiliates of
Landlord for goods and services in or to the Building to the extent the
same exceeds the costs of such goods and services rendered by unaffiliated
third parties on a competitive basis;
(16) Landlord's general corporat overhead and general and administrative
expenses;
Exhibit C
Page 1 of 3
(!7) compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord or in the parking garages of or serving
the Building or wherever Tenant is granted its parking privileges and ail
fees paid to any parking facility operator;
(18) rentals and other related expenses incurred in leasing HVAC systems,
elevators or other equipment ordinarily considered to be Capital Items,
except for (a) expenses in connection with making repairs on or keeping
Building systems in operation while repairs are being made; (b) costs of
equipment not affixed to the Building that is used in providing janitorial
or similar services, and (c) Capital Items permitted to be included in
Operating Expenses under Item 9 or 11 above;
(19) advertising and promotional expenditures, and costs of signs in or on the
Building identifying the owner of the Building or other tenants' signs;
(20) costs and expenses of any electric power used by any tenant in the Building
measurably in excess of the Building-standard amount, or electric power
costs for which any tenant directly contracts with the local public service
company or of which any tenant is separately metered or submetered and pays
Landlord directly; however, if any tenant in the Building contracts
directly for electric power service or is separately metered or submetered
during any portion of the relevant period, the total electric power costs
for the Building will be "grossed up" to reflect what those costs would
have been had each tenant in the Building used the Building-standard amount
of electric power;
(21) costs and expenses incurred in connection with upgrading the Building to
comply with life, fire and safety codes, ordinances, statutes or other laws
in effect prior to the Commencement Date including, without limitation, the
ADA, including penalties or damages incurred due to non-compliance;
(22) any management fees in excess of those management fees that are normally
and customarily charged by landlords of comparable buildings;
(23) any and all costs arising from the presence of hazardous materials or
substances (as defined by applicable laws in effect on the date this Lease
is executed) in or about the Lease Premises or the Building or Common Areas
including, without limitation, hazardous substances in the ground water or
soil, not placed or permitted to be placed in the Leased Premises or the
Building by Tenant, its agents, employees contractors or invitees;
(24) charitable, political or other voluntary contributions;
(25) costs for sculpture, paintings or other objects of art;
(26) costs (including attorneys' fees and costs of settlement judgments and
payments) arising from claims, disputes or potential disputes, litigation
or arbitrations pertaining to Landlord or the Building;
(27) costs associated with the operation of the business of the partnership or
entity that constitutes Landlord as the same are distinguished from the
costs of operation of the Building, including partnership accounting and
legal matters, costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building;
(28) costs of any "tap fees" or any sewer or water connection fees for the
benefit of any particular tenant in the Building;
(29) entertainment, dining or travel expenses for any purpose;
(30) expenses for gifts provided to any entity, including, but not limited to,
Tenant, other tenants, employees, vendors, contractors, prospective tenants
and agents;
(31) any "finders fees", brokerage commissions, job placement costs or job
advertisement costs;
(32) costs of any "tenant relations" parties, events or promotions not consented
to by an authorized representative of Tenant in writing as long as none of
Tenant's employees attend;
(33) "in-house" legal and accounting fees; or
Exhibit C
Page 2 of 3
(34) fees and assessments imposed by any covenants or owners' association, but
only to the extent such fees and assessments are otherwise excluded
hereunder.
Exhibit C
Page 3 of 3
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways and roadways serving and adjacent to
the Leased Premises shall not be obstructed or used for any purpose other than
ingress and egress. Landlord shall control the Common Areas.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Leased Premises
other than Landlord standard window coverings without Landlord's prior written
approval. All electric ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent, of a quality, type, design and
tube color approved by Landlord. Neither the interior nor the exterior of any
windows shall be coated or otherwise sunscreened without written consent of
Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Leased Premises, the Building or in the Common Areas including the parking area
without the prior written consent of Landlord. In the event of the violation of
the foregoing by any tenant, Landlord may remove or stop same without any
liability, and may charge the expense incurred in such removal or stopping to
tenant.
4. The sinks and toilets and other plumbing fixtures shall not be used for
any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
5. No boring, cutting or stringing of wires or laying of any floor
coverings shall be permitted, except with the prior written consent of the
Landlord and as the Landlord may direct. Landlord shall direct electricians as
to where and how telephone or data cabling are to be introduced. The location of
telephones, call boxes and other office equipment affixed to the Leased Premises
shall be subject to the approval of Landlord.
6. No bicycles, vehicles, birds or animals of any kind (except seeing eye
dogs) shall be brought into or kept in or about the Leased Premises, and no
cooking shall be done or permitted by any tenant on the Leased Premises, except
microwave cooking, and the preparation of coffee, tea, hot chocolate and similar
items for tenants and their employees. No tenant shall cause or permit any
unusual or objectionable odors to be produced in or permeate from the Leased
Premises.
7. The Leased Premises shall not be used for manufacturing, unless such use
conforms to the zoning applicable to the area, and the Landlord provides written
consent. No tenant shall occupy or permit any portion of the Leased Premises to
be occupied as an office for the manufacture or sale of liquor, narcotics, or
tobacco in any form, or as a medical office, or as a xxxxxx or manicure shop, or
a dance, exercise or music studio, or any type of school or daycare or copy,
photographic or print shop or an employment bureau without me express written
consent of Landlord. The Leased Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.
8. No tenant shall make, or permit to be made any unseemly, excessive or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in any other way.
No tenant shall throw anything out of doors, windows or down the passageways.
9. No tenant, subtenant or assignee nor any of its servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the Leased
Premises any flammable, combustible or explosive fluid, chemical or substance or
firearm.
10. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made to existing
locks or the mechanism thereof. Each tenant must upon the termination of his
tenancy, restore to the Landlord all keys of doors, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant and in the event of
the loss of keys so furnished, such tenant shall pay to the Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
Exhibit D
Page 1 of 2
11. No tenant shall overload the floors of the Leased Premises. All damage
to the floor, structure or foundation of the Building due to improper
positioning or storage items or materials shall be repaired by Landlord at the
sole cost and expense of tenant, who shall reimburse Landlord immediately
therefor upon demand.
12. Each tenant shall be responsible for all persons entering the Building
at tenant's invitation, express or implied. Landlord shall in no case be liable
for damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of an invasion, mob riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right without any abatement of rent to require all persons
to vacate the Building and to prevent access to the Building during the
continuance of the same for the safety of the tenants and the protection of the
Building and the property in the Building.
13. Canvassing, soliciting and peddling in the Building are prohibited, and
each tenant shall report and otherwise cooperate to prevent the same.
14. All equipment of any electrical or mechanical nature shall be placed by
tenant in the Leased Premises in settings that will, to the maximum extent
possible, absorb or prevent any vibration, noise and annoyance.
15. There shall not be used in any space, either by any tenant or others,
any hand trucks except those equipped with rubber tires and rubber side guards.
16. The scheduling of tenant move-ins shall be before or after normal
business hours and on weekends, subject to the reasonable discretion of
Landlord.
17. The Building is a smoke-free Building. Smoking is strictly prohibited
within the Building. Smoking shall only be allowed in areas designated as a
smoking area by Landlord. Tenant and its employees, representatives, contractors
or invitees shall not smoke within the Building or throw cigar or cigarette
butts or other substances or litter of any kind in or about the Building, except
in receptacles for that purpose. Landlord may, at its sole discretion, impose a
charge against monthly rent of $50.00 per violation by tenant or any of its
employees, representatives, contractors or invitees, of this smoking policy.
18. Tenants will insure that all doors are securely locked, and water
faucets, electric lights and electric machinery are turned off before leaving
the Building.
19. Tenant, its employees, customers, invitees and guests shall, when using
the parking facilities in and around the Building, observe and obey all signs
regarding fire lanes and no-parking and driving speed zones and designated
handicapped and visitor spaces, and when parking always park between the
designated lines. Landlord reserves the right to tow away, at the expense of the
owner, any vehicle which is improperly parked or parked in a no-parking zone or
in a designated handicapped area, and any vehicle which is left in any parking
lot in violation of the foregoing regulation. All vehicles shall be parked at
the sole risk of the owner, and Landlord assumes no responsibility for any
damage to or loss of vehicles.
20. Tenant shall be responsible for and cause the proper disposal of
medical waste, including hypodermic needles, created by its employees.
21. No outside storage is permitted including without limitation the
storage of trucks and other vehicles.
22. No tenant shall be allowed to conduct an auction from the Leased
Premises without the prior written consent of Landlord.
It is Landlord's desire to maintain in the Building and Common Areas the highest
standard of dignity and good taste consistent with comfort and convenience for
tenants. Any action or condition not meeting this high standard should be
reported directly to Landlord. The Landlord reserves the right to make such
other and further rules and regulations as in its judgment may from time to time
be necessary for the safety, care and cleanliness of the Building and Common
Areas, and for the preservation of good order therein.
Exhibit D
Page 2 of 2
(FLOOR PLAN)
Exhibit E
Page 1 of 1
EXHIBIT F
MAINTENANCE SPECIFICATIONS
Suggested HVAC Contractors:
PACKAGED UNIT
J F M A M J J A S O N D
--- --- --- --- --- --- --- --- --- --- --- ---
Check and lubricate motor X X X X
Inspect blower wheel X X X X
Check air filters, replace if required X X X X
Inspect and tighten electrical connections X X X X
Inspect contactors and motor starters X X X
Inspect evaporator coil X X
Check condensate pan and drain X X
Inspect condenser coil, clean once annually X X
Check refrigerant charge X X
Check and record suction and head pressure X
Check and record superheat X
Check and record sub-cooling X
Check and record temperature drop across evaporator X
Check and record condenser fan amp rating and draw X
Pull and clean burners X
Inspect heat exchanger X X
Sequence heat, check operation X X
Check operation of ventor fan X X
Inspect flue X X
Check operation of flame safety X
Check operation and limit controls X
Make recommendations of any required repairs X X X X
Exhibit F
Page 1 of 2
EXHIBIT F
INDIRECT FIRED MAKE-UP AIR UNITS J F M A M J J A S O N D
-------------------------------- --- --- --- --- --- --- --- --- --- --- --- ---
Inspect blower wheel X X X X
Check and adjust blower belt, replace annually X X X X
Inspect and tighten electrical connections X X X X
Inspect contactor and motor starters X X X X
Check all control electrical connections X X X X
Check damper linkages X X X X
Pull and clean burner X
Check operation of flame safety X X
Check operaton and lubricate ventor fan if applicable X X
Check and clean pilot X X
Check gas pressure X
Check operation and limit controls X
Check flue X X
Check heat exchangers X X
Make recommendations of required repairs X X X X
NOTE:
- IF UNIT HAS AIR FILTERS THEY SHOULD BE REPLACED AT LEAST QUARTERLY.
- IF UNIT HAS WASHABLE OUTSIDE AIR FILTERS THEY SHOULD BE CLEANED AT LEAST
ONE TIME PER YEAR.
Exhibit F
Page 2 of 2
