OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTION 240.24b-2 INDUSTRIAL LEASE AGREEMENT
Exhibit 10.3
*** OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTION 240.24b-2
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTION 240.24b-2
THIS INDUSTRIAL LEASE AGREEMENT (this “Lease”), made and entered into as of the
Effective Date, by and between the Landlord and the Tenant hereinafter named.
W I T N E S S E T H :
For and in consideration of the rents, covenants and agreements hereinafter reserved and
contained on the part of Tenant to be observed and performed, Landlord demises and leases to
Tenant, and Tenant leases, rents and accepts from Landlord the Premises, as hereinafter defined.
ARTICLE I
DEFINITIONS AND EXHIBITS
DEFINITIONS AND EXHIBITS
1.1 DEFINITIONS. In addition to other terms which are elsewhere defined in this
Lease, each of the following terms when used in this Lease with an initial capital letter shall
have the meanings set forth in this Paragraph 1.1, and only such meanings, unless such meanings are
expressly limited or expanded elsewhere in this Lease:
| (A) | “Landlord”: ▇▇▇▇▇ ENTERPRISES, INC., a Georgia corporation. |
||
| (B) | Landlord’s Mailing Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇. |
||
| (C) | “Tenant”: PREMIER EXHIBITIONS, INC., a Florida corporation. |
| (D) | Tenant’s Mailing Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇. |
| (E) | “Premises”: That certain building containing approximately 48,536
gross rentable square feet, commonly known as [***] located within the [***] State of
Georgia, and which is depicted on the Site Plan annexed hereto as Exhibit “B”. |
| (F) | “Rent Commencement Date”: June 1, 2012; provided, however, that in the
event that Landlord Work is not Substantially Complete (as defined in Subparagraph
1.1[AAA on or before January 1, 2012, and such delay is not caused by Tenant, then the
Rent Commencement Date shall be delayed for one (1) additional day for each day or part
thereof that elapses between January 1, 2012 and the date on which the Premises is
delivered to Tenant in accordance with Paragraph 3.2 below, and all dates related
thereto shall be adjusted accordingly, including, without limitation, the dates
contained in Subparagraph 1.1(G) and Subparagraph 1.1(H). |
| (G) | “Lease Term”: The term of this Lease shall commence on the
Commencement Date, and, unless sooner terminated as hereinafter provided, shall
terminate on May 31, 2017. Provided Tenant is not in a material Tenant Default beyond
any applicable notice and cure periods, Tenant shall have the option to extend the
Lease Term for two (2) additional five (5) year periods
(each, an “Option Period”, and collectively, the “Option Periods”). Said Option Periods
shall be exercised by Tenant, if at all, by written notice to Landlord delivered at
least two hundred seventy (270), but not more than three hundred sixty-five (365), days
prior to the expiration of the Lease Term, or any extension thereof. All of the terms
and conditions contained in this Lease shall apply during the Option Periods, except
that Minimum Rent for such Option Periods shall be at a rate mutually determined
between Landlord and Tenant, but in no event greater than the “Market Annual Rental
Rate” then in effect. The term “Market Annual Rental Rate” shall mean the annual net
rental rate per gross rentable square feet (exclusive of Common Area Maintenance Costs,
Taxes and Insurance) then being charged in the same rental market for space comparable
to the Premises, taking into consideration: size of the space; leasehold improvements
provided or allowances granted; quality, condition, age and location of the Premises;
rental concessions such as abatements or lease assumption; real estate brokerage
commissions; the time the particular rate under consideration became effective;
creditworthiness and financial wherewithal of tenant; the tenant’s credit history;
relative services provided, if any; and other reasonable, appropriate and market
customary factors. Within fifteen (15) business days after receipt by Landlord of
Tenant’s election to exercise an Option Period, Landlord shall provide Tenant with
written notice of Landlord’s determination of a Market Annual Rental Rate. Landlord’s
determination of a Market Annual Rental Rate shall be binding unless, within fifteen
(15) business days after receipt of said notice, Tenant gives written notice to
Landlord of Tenant’s objection to Landlord’s determination of the Market Annual Rental
Rate. Tenant shall simultaneously provide Landlord with written notice of Tenant’s
determination of a Market Annual Rental Rate and Tenant’s basis for said determination.
Within thirty (30) business days from Landlord’s receipt of Tenant’s objection to the
Market Annual Rental Rate, Landlord and Tenant shall make all reasonable and good faith
attempts to agree upon a Market Annual Rental Rate. If Landlord and Tenant are unable
to so agree, then, within fifteen (15) business days from the date that they are unable
to agree to a Market Annual Rental Rate, they shall select a mutually acceptable
industrial real estate broker with at least ten (10) years’ experience leasing
industrial space in the Atlanta metropolitan area. If the parties are unable to agree
as to the selection of an industrial real estate broker, then Tenant shall select an
industrial real estate broker with the same qualifications and Landlord shall select an
industrial real estate broker with the same qualifications. These two (2) industrial
real estate brokers shall then select a third industrial real estate broker (the
“Third Party Broker”) with the same qualifications who shall determine the
Market Annual Rental Rate. The industrial real estate broker shall then make all
reasonable efforts to determine the Market Annual Rental Rate within fifteen (15)
business days after being selected. Landlord’s determination of a Market Annual Rental
Rate shall be binding unless, within fifteen (15) business days after receipt of said
notice, Tenant gives written notice to Landlord of Tenant’s revocation of Tenant’s
election to extend the Lease Term through the Option Period(s), whereupon this Lease
shall expire at the end of the then-existing Lease Term. Landlord and Tenant shall
share the cost of dispute resolution equally. Notwithstanding the foregoing, Tenant
shall have no further options to extend the Lease Term, and the option shall not
survive an assignment of the Lease (excluding Permitted Transfers, as defined in
Paragraph 9.1), unless approved by Landlord in accordance with Paragraph 9.1. |
| (H) | “Minimum Rent”: The monthly Minimum Rent shall be: |
| Dates | Monthly Amount | |||
(i) Rent Commencement Date through May 31, 2015: |
$ | 13,145.17; and | ||
(ii) June 1, 2015 through May 31, 2017: |
$ | 13,954.10. | ||
| (I) | “Initial Payment”: Intentionally Deleted. |
||
| (J) | “Security Deposit”: Intentionally Deleted. |
| (K) | “Use of Premises”: Solely for the warehousing of museum-quality tour
exhibitions, as a merchandise and other products distribution center, as a laboratory
for artifact preservation, and storage and office uses related thereto, and for no
other purpose whatsoever. |
||
| (L) | “Agent”: ▇▇▇▇▇ ▇▇▇▇ Lasalle Brokerage, Inc., a Texas corporation. |
| (M) | “Aggregate Rent”: All Minimum Rent, Common Area Maintenance, Taxes,
Insurance and all other costs, expenses, sums, amounts, and charges payable or
reimbursable under this Lease by Tenant. |
| (N) | “Calendar Year”: Each annual period from January 1 through December
31. |
| (O) | “Claims”: All liabilities, demands, claims, costs, suits, actions,
judgments, expenses and obligations, including court costs, attorneys’ fees, and
disbursements related thereto. |
| (P) | “Commencement Date”: The date on which Landlord delivers possession of
the Premises to Tenant, with Landlord Work set forth on Exhibit “C”
Substantially Complete (as defined in Subparagraph 1.1[AAA]). Provided that Landlord
Work is Substantially Complete, notice of delivery of possession of the Premises shall
be provided to Tenant by either (i) on-premises delivery, or (ii) written notification
via a nationally recognized courier service such as Federal Express. In the event
Landlord elects to deliver the Premises in accordance with (ii) above, the Commencement
Date shall be the date Tenant receives such written notification. Subject to Special
Stipulation 1. |
| (Q) | “Commission Agreement”: That separate agreement between Landlord and
Agent relative to real estate brokerage commission with respect to this Lease. |
| (R) | “Common Area Maintenance”: All expenses and costs arising out of or
related to the operating, equipping, lighting, painting, cleaning, repairing,
replacing, resurfacing, paving, repaving, and maintaining the Common Area and all
portions and components thereof, including, without limitation, (i) the roof of the
Premises (including all roof repairs but excluding roof replacement), (ii) the Common
Area (including without limitation, the driveways, sidewalks and parking lot),
including, without limitation, landscaping (including, without limitation, irrigating,
fertilizing, mulching, strawing, planting, replanting and replacing flowers, trees,
shrubs and grass), (iii) repairing or maintaining Utilities, and lighting, traffic
control, sanitary assessments and services, removal of snow, trash, rubbish, garbage
and other refuse, security services, pest control, depreciation and rental fees for
machinery or other equipment with respect to such maintenance, all costs for or
associated with supplies, material and personnel to implement any of the foregoing.
Subject to Special Stipulation 2. |
| (S) | “Common Area”: All portions of the Property (as defined in
Subparagraph 1.1[BBB]) intended for common use, including, but not limited to, the
parking areas, driveways, sidewalks and landscaped areas, truck and delivery passages,
customer loading zones, parking lot lighting, exterior ramps, entrances to and exits
from the Property, all as they are or may be from time to time constituted. |
||
| (T) | “Compliance Cost”: The total cost of the Compliance Work. |
| (U) | “Compliance Work”: All repairs, replacements, alterations or additions
necessary to comply with all Laws with respect to the Premises. |
| (V) | “Condemnation”: Any taking by eminent domain for any public or
quasi-public usage or purpose, including, without limitation, any conveyance in lieu of
or under threat of condemnation. |
| (W) | “Default Termination”: The date of termination of this Lease arising
out of or due to a Tenant Default. |
| (X) | “Effective Date”: The latter date on which Landlord or Tenant executed
this Lease as reflected by the date inserted by their respective signatures, upon which
Landlord and Tenant and all guarantors, if any, shall be and become fully bound by the
terms of this Lease, notwithstanding any other terms of this Lease. |
| (Y) | “First Mortgage”: Any Mortgage which now or hereafter has a first
priority over all other Mortgages encumbering the Premises. |
| (Z) | “Hazardous Substance”: Any element, compound, chemical mixture,
contaminant, pollutant, material, waste or other substance which is defined, determined
or identified as toxic or hazardous, in excess of amounts permitted under any Laws,
including, without limitation, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, the
Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Clean
Water Act, the Clean Air Act, the Safe Drinking Water Act, the National Environmental
Policy Act of 1969, the Superfund Amendment and Reauthorization Act of 1986, and all
Laws that are similar thereto. Subject to Special Stipulation 5. |
| (AA) | “Insurance”: Liability, environmental, pollution and remediation legal
liability, umbrella, rents, flood, and fire and extended coverage insurance premiums. |
| (BB) | “Insurance Certificate”: Certificate of general liability insurance,
in accordance with Paragraph 8.1. |
| (CC) | “Insurance Fiscal Year”: “Any twelve (12) month period determined by
Landlord, the first such Insurance Fiscal Year which shall, until otherwise determined
by Landlord, be the fiscal year from June 1 through May 31 which contains the Rent
Commencement Date. |
| (DD) | “Invitees”: Employees, agents, servants, assignees, subtenants,
invitees, licensees, customers, visitors, concessionaires. |
| (EE) | “Landlord Default”: Landlord shall be deemed to be in material default
of this Lease in the event that Landlord fails to observe or perform any of the terms
or covenants of this Lease in accordance with Paragraph 11.2. |
| (FF) | “Landlord Group”: Landlord and Landlord’s agents, servants, employees,
contractors, officers, attorneys, shareholders and directors. The General Contractor,
as defined in Special Stipulation 4, shall be deemed a member of the Landlord Group
until such time as Landlord Work is Substantially Complete (as defined in Subparagraph
1.1[AAA]). |
| (GG) | “Landlord Repairs”: (i) Necessary repairs to lines for Utilities which
serve the Premises and are located outside the perimeter walls of the Premises; (ii)
necessary roof repairs and replacements; (iii) necessary structural repairs to the
exterior walls and foundations of the Premises (including pointing and other building
perimeter sealing and drainage systems); (iv) necessary repairs to the loading docks;
and (v) all maintenance, repairs or replacements of the existing HVAC unit, and all or
any portions of the interior plumbing, sewerage, drainage, fire protection sprinkler
and electrical systems (the “Interior Systems”) serving the Premises that are
necessary during the first one hundred eighty (180) days after the Rent Commencement
Date (the “Guaranty Period”), excluding, however, any repairs or replacements
to the Interior Systems during the Guaranty Period due to the acts or negligence of
Tenant or Tenant Invitees or to alterations made by Tenant, in which event such repairs
or replacements shall be solely the financial responsibility of Tenant; and
specifically excluding any of the following: (1) any repair, replacement, rebuilding,
painting, cleaning, or maintenance, whether structural or non-structural, foreseen or
unforeseen, ordinary or extraordinary to the extent made necessary by or arising out of
any act or omission or negligence of Tenant or any Invitees of Tenant, or (2) which is
designated in this Lease as a Tenant Repair. |
| (HH) | “Laws”: All zoning ordinances, laws, statutes, ordinances, orders,
regulations, directives, rules or requirements of all federal, state, city, county or
other governmental, public or quasi-public authorities, bodies, boards or agencies, or
all departments or bureaus thereof, now existing or hereafter created, including,
without limitation, all building, zoning, environmental, health and fire-safety laws,
the Americans With Disabilities Act of 1990, the Occupational and Safety and Health Act
of 1970, and all laws related to Hazardous Substances, including all amendments thereto
and all regulations promulgated thereunder. |
||
| (II) | “Mortgagee”: Any holder of a Mortgage. |
| (JJ) | “Obligated Party”: The party obligated to perform the Compliance Work
in accordance with the terms of Paragraph 3.4. |
| (KK) | “Rate”: The total of (i) the annual percentage rate announced by ▇▇▇▇▇
Fargo Bank, National Association (Inc.), or its successors and assigns, as its prime
rate, plus (ii) two percent (2%), but in no event higher than the highest rate
enforceable by Laws. |
| (LL) | “Remaining Term”: That portion of the Lease Term commencing with the
Default Termination and ending on the Termination Date. |
||
| (MM) | “Rent Inducements”): Intentionally Deleted. |
||
| (NN) | “Restoration Cost”: The total cost to restore damage or destruction to the Premises. |
| (OO) | “Signs”: All lettering, signs, awnings, advertising matter, or any
other items of any kind on the roof, door, windows, store front, or the exterior of the
building located on the Premises or on the Common Area. |
||
| (PP) | “Special Stipulations”: Those special stipulations, if any, annexed to this Lease as Exhibit “A”. |
||
| (QQ) | “Tax Year”: A twelve (12) month period established by Landlord as the year for purposes of computing Taxes. |
Page 2 of 24
| (RR) | “Taxes”:
All real estate taxes, ad valorem taxes, assessments (including, without limitation, general and special
assessments for public improvements or benefits whether or not commenced or completed
during the Lease Term, as same may be extended or renewed, sanitary and trash removal
assessments, and all property owners’, association, subdivision, and all other types
of public, quasi-public or private assessments, fees or exactions or similar charges
of any nature whatsoever), water charges, sewer rents and all other taxes or any type
of assessments whatsoever levied, assessed or imposed at any time by any municipal,
county or state government or any other governmental authority or agency upon or
against the Premises or any portion thereof, and also any tax or assessment levied,
assessed or imposed against the Premises or any portion thereof at any time by any
governmental authority in connection with any franchise or the receipt of any income,
rent or profit from the Premises to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments upon or against the Premises,
sales or use tax imposed by any Laws by reason of or in any way related to the
occupancy or use of the Premises or the payment of rental therefor by Tenant, and all
tax protest charges and fees. |
| (SS) | “Tenant Default”: The occurrence of any one (1) or more of the
following events, situations or occurrences, each of which shall be deemed to be
material default and breach of this Lease by Tenant: (i) Landlord does not actually
receive any payment of the full amount of Aggregate Rent or any other payment or
reimbursement due hereunder punctually on the due date thereof, and such failure is not
cured within ten (10) days after receipt of written notice from Landlord thereof, or
(ii) Tenant fails to fully and punctually observe or perform any of the non-monetary
terms or covenants of this Lease, and such failure has not been cured or Tenant has not
commenced to cure such default within thirty (30) days after receipt of written notice
thereof (except that if the nature of Tenant’s default is such that it cannot
reasonably be cured within such thirty (30) day period, then Tenant shall not be in
default hereunder if Tenant commences such cure within the thirty (30) day period and
thereafter diligently prosecutes such cure until completion). |
| (TT) | “Tenant Group”: Tenant and Tenant’s agents, servants, employees,
contractors, officers, attorneys, shareholders and directors. |
| (UU) | “Tenant Repairs”: (i) All repairs, replacements, rebuilding, painting,
cleaning and maintenance, foreseen or unforeseen, ordinary or extraordinary to maintain
in good order the interior, non-structural portions of the Premises including Tenant’s
Trade Fixtures; (ii) perform quarterly preventative maintenance on the HVAC units
pursuant to a service contract with a reputable HVAC company, as well as HVAC repairs
and replacements that are not Landlord Repairs, provided, however, in the event Tenant
replaces the HVAC unit in the Office area of the Premises only, as shown on Exhibit
“C’ attached hereto, with a new HVAC unit, the cost of such replacement shall be
amortized over a ten (10) year term and Landlord shall reimburse Tenant at the end of
the then existing Lease Term for the remaining unamortized cost thereof; (iii) the
exterior and interior portions of all windows, doors, glass, locks, hardware, Signs, or
any casing, frames, or caulking which support or surround same; (iv) all plumbing,
sewerage, drainage, fire protection sprinkler, and electrical systems which solely
serve the Premises, and are located on or within the walls of the building located on
the Premises; (v) and all interior walls, wall treatments, floors (but not the slab),
ceilings and ceiling systems building located within the Premises. The term “interior”
shall mean the area enclosed by the unfinished interior surfaces of the walls, floors
and ceilings of the Premises, but excluding any portion of any mechanical, plumbing,
electrical or other system that does not exclusively serve the Premises and any
structural elements. Notwithstanding the foregoing, Tenant shall not be responsible for
making any repairs or replacements which are caused by the negligence or willful
misconduct of Landlord or Landlord’s employees, agents or contractors. |
| (VV) | “Tenant’s Share”: Tenant’s proportionate share, which shall be the
ratio of the leasable area of the Premises to the total leasable area located on the
Property (as defined in Subparagraph 1.1[BBB]). |
| (WW) | “Termination Date”: The date of termination of the Lease Term, as set
forth in Subparagraph 1.1(G). |
| (XX) | “Trade Fixtures”: Any furniture, furnishings, signs, machinery,
equipment or improvements installed, placed or made on or to the Premises by Tenant,
whether or not affixed to the Premises, and used for the specific purposes of the
business being conducted by Tenant on the Premises and any and all additions,
substitutions or replacements of any of the foregoing. |
| (YY) | “Utilities”: All water, water pressure, gas, electricity, fuel, light,
heat, power, telephone, sewage service, trash removal, sanitary charges and
assessments, security protection, or any other utilities or services attributable to or
servicing the Premises, whether located on, in, under or above ground. |
| (ZZ) | “Work”: All work, labor or service done, or materials furnished for
any work, repair, rebuilding, replacement, painting, cleaning, maintenance,
improvement, alteration, or addition to the Premises, including, without limitation,
Compliance Work, Landlord Repairs and Tenant Repairs. |
| (AAA) | “Substantially Complete” or “Substantial Completion”: Full
completion in compliance with Laws, except for minor or insubstantial details of
construction, decoration or installation, which do not materially impair the ability to
occupy and fully utilize the Premises for its intended purpose; provided, however, that
Landlord Work will not be deemed to have been Substantially Complete if (a) full
completion has not occurred within thirty (30) days of the date on which Landlord Work
was tendered as Substantially Complete, and (b) a certificate of occupancy or
equivalent thereto permitting Tenant to occupy the Premises has not been issued by the
applicable governmental authority. |
| (BBB) | “Property”: That certain improved real property owned by Landlord,
located at [***], containing the Premises and Common Area. |
1.2 EXHIBITS. The Exhibits enumerated in this Paragraph 1.2 (if used) and annexed to
this Lease are incorporated in this Lease by this reference and are to be construed as part of this
Lease:
Exhibit “A”:
|
Special Stipulations. | ||
Exhibit “B”:
|
Site Plan of the Premises. | ||
Exhibit “C”:
|
Landlord Work. | ||
Exhibit “D”:
|
Rules and Regulations. | ||
Exhibit “E”:
|
Tenant Improvement Guidelines. |
ARTICLE II
RENT
RENT
2.1 AGGREGATE RENT. (A) Tenant shall pay the Aggregate Rent to Landlord at
Landlord’s address set forth above, or at such other place as Landlord may designate from time to
time, without notice or demand therefor, and without any abatement, deduction, diminution or
set-off, except as otherwise set forth herein, punctually in advance on the Rent Commencement Date,
and on the first day of each calendar month thereafter throughout the Lease Term, unless otherwise
specifically set forth herein. If mailed, the Aggregate Rent and all other payments under this
Lease shall be mailed in sufficient time and with adequate postage thereon to be actually received
by Landlord not later than the due date. A pro rata monthly installment of the Aggregate Rent
shall be due for the first month of the Lease Term if the Rent Commencement Date is a day other
than the first day of a calendar month, and for the last month of the Lease Term if the Lease Term
for any reason terminates on a day other than the last day of a calendar month.
(B) The late payment by Tenant to Landlord of Aggregate Rent or any other sums due hereunder
shall cause Landlord to incur costs not contemplated by this Lease, the exact amount of which would
be extremely difficult and impractical to ascertain. Such costs include, without limitation,
processing, clerical and accounting charges, lost interest and late charges which may be imposed on
Landlord by the terms of a Mortgage. If Aggregate Rent is not received within five (5) business
days from the date such Aggregate Rent is due, Tenant shall pay Landlord a late charge equal to the
greater of (i) five percent (5%) of such payment of Aggregate Rent, or (ii) One Hundred Fifty and
No/100 ($150.00) Dollars. Payment of such late charge shall not excuse or waive the late payment
of Aggregate Rent.
Page 3 of 24
(C) If Landlord receives a dishonored check from Tenant, all subsequent Aggregate Rent checks
shall be bank certified
and Landlord shall not be required to accept checks except in such form. Tenant shall pay
Landlord any bank service charges resulting from dishonored checks, plus Fifty and No/100 ($50.00)
Dollars for each such dishonored check, as compensation to Landlord for its additional processing
costs.
2.2 MINIMUM RENT. Tenant shall pay Landlord Minimum Rent in accordance with Subparagraph 1.1(H).
ARTICLE III
PREMISES
PREMISES
3.1 PREMISES DEMISED. The Premises are demised and leased subject to all Laws, and
the state of title of the Premises, and any statement of facts which an accurate survey may
disclose, together with all easements, Mortgages, agreements, encumbrances, and all other liens,
charges or other matters of any nature, recorded or unrecorded, affecting the Premises.
Notwithstanding the definition or description of the Premises or the method of calculation of the
gross rentable square footage of the Premises, the Premises demised hereunder do not include the
right to any usage whatsoever of the exterior walls, roof, or the land beneath the Premises, and
Tenant shall not attach or place anything on the roof or exterior walls of the Premises, and Tenant
shall not have access to the roof. No rights, licenses or easements are given to Tenant hereunder,
except as expressly demised hereunder, and no easement for light or air is leased with or included
in the Premises.
3.2 DELIVERY AND ACCEPTANCE OF POSSESSION. Landlord shall exercise a good faith
effort with respect to delivering possession of the Premises with Landlord Work Substantially
Complete to Tenant on or before January 1, 2012, but in the event that possession of the Premises
with Landlord Work Substantially Complete is not delivered to Tenant within one hundred eighty
(180) days after the Effective Date, and provided such delay is not caused by Tenant, Tenant shall
have the right to terminate this Lease by delivering written notice of such termination to
Landlord, whereupon this Lease shall thereupon become null and void and of no further force or
effect whatsoever in law or equity, and Landlord shall not be liable to Tenant for any loss or
damages related to such failure to deliver possession. Tenant has examined the Premises, and
reviewed and approved Exhibit “C” with respect to Landlord Work to be constructed on the
Premises. Tenant shall accept the Premises at such time as the Premises are Substantially Complete.
Except as expressly set forth herein, Landlord has made no other representations, express or
implied, as to the condition thereof, or as to the use or occupancy which may be made thereof, or
the effect of any Laws thereon. Unless Exhibit “C” expressly describes specific initial
Landlord Work to be performed by Landlord before the Commencement Date, nothing contained in this
Lease shall obligate Landlord to perform any Landlord Work other than Landlord Repairs and
Compliance Work as expressly the obligation of Landlord pursuant to the terms and conditions of
this Lease.
3.3 USE OF PREMISES AND COMMON AREAS. The Premises shall be used only for the
purposes described in Subparagraph 1.1(K) and for no other purposes whatsoever. As of the
Effective Date, Landlord represents and warrants that Tenant can operate in the Premises for the
purposes described in Subparagraph 1.1(K). Landlord hereby grants to Tenant the non-exclusive
right to use the Common Area in common with Landlord. Landlord covenants and agrees that the
Common Area shall not be altered or modified in any way by Landlord that adversely impacts Tenant’s
ingress and egress to the Property, the proximity and number of parking spaces available at the
Property, and the visibility of Tenant’s signage, if any, at the Property. The foregoing
provisions of this paragraph shall not apply in instances where access and/or visibility are due to
Laws, Condemnation, or casualty, or temporarily affected as a result of repairs, remodeling,
renovation or other construction to the Property, provided, however, Landlord shall use good faith
and commercially reasonable efforts to obtain access for Tenant during any such instances.
3.4 COMPLIANCE WITH LAWS. (A) Landlord shall, at all times during the Lease Term, as
same may be extended or renewed, perform all Compliance Work which is applicable to (i) the
Premises in general, and is not in any way related to Tenant’s particular or specific use or
occupancy of the Premises, or (ii) any Hazardous Substance which was placed in, on or upon the
Premises prior to the Commencement Date by any party other than Tenant or the Invitees of Tenant.
Landlord shall, and does hereby, indemnify and hold harmless Tenant from and against all Claims
arising out of or related to the obligations of Landlord under this Subparagraph 3.4(A). See
Special Stipulation 5.
(B) Except with respect to those items of Compliance Work which are the responsibility of
Landlord in accordance with the express terms of Subparagraph 3.4(A) and the Special Stipulations,
Tenant shall not violate, nor take any action or fail to take any action which would result in
Landlord or the Premises being in violation of, any Laws, whether or not the Laws relate to or be
for a period prior to the Rent Commencement Date. Tenant shall, at all times during the Lease Term,
as same may be extended or renewed, promptly comply with (i) all provisions, recommendations and
requirements of any fire, liability or other insurer affecting or covering the Premises, or any
part thereof, and (ii) all Compliance Work arising out of or related to Tenant’s particular or
specific use or occupancy of the Premises. Tenant shall, and does hereby, indemnify and hold
harmless Landlord from and against all Claims arising out of or related to the obligations of
Tenant under this Subparagraph 3.4(B). Tenant shall promptly procure and thereafter maintain all
licenses and permits which are necessary or desirable to maintain and operate the business of
Tenant in the Premises. See Special Stipulation 3.
3.5 ACCESS TO PREMISES. Landlord shall be entitled to enter upon the Premises at all
reasonable times during Tenant’s customary business hours, upon reasonable notice given no less
than forty-eighty (48) hours in advance, for purposes of inspecting the Premises for potential
repairs, or making any repairs thereto or to Landlord’s adjoining property. Also, during the last
ninety (90) days of the Lease Term (or commencing on such earlier date, if any, as Tenant advises
Landlord that Tenant does not intend to extend or renew the Lease Term) Landlord shall be entitled
to enter upon the Premises for purposes of placing any “For Lease” notices on or about the
Premises, or to show or display the Premises. No such notices shall be removed, molested or hidden
by Tenant. Landlord may, without prior notice in case of an emergency, enter the Premises to remedy
such emergency, in which event Landlord shall give Tenant written notice within twenty-four (24)
hours thereafter of the reason for and time of entry and of all actions taken by Landlord and the
cost thereof. In the event of any entry pursuant to this Paragraph 3.5, Landlord shall not
unreasonably interfere with the conduct of Tenant’s operations. Landlord shall coordinate with
Tenant regarding both the scope and timing of any repair work in the Premises prior to the
performance of any such repair work. In the event such repair work would unreasonably interfere
with the conduct of Tenant’s operations (as reasonably determined by Tenant), then Landlord shall
take such precautions as reasonably requested by Tenant to minimize any unreasonable interference
thereto. Provided Landlord uses commercially reasonable judgment in minimizing unreasonable
interference with Tenant’s operations, Landlord’s entry shall not be deemed an actual or
constructive eviction or disturbance of Tenant. Nothing contained in this Paragraph 3.5 or
elsewhere in this Lease shall obligate Landlord in any fashion under any circumstances to enter or
inspect the Premises.
3.6 QUIET ENJOYMENT. Tenant, upon paying the Minimum Rent and all other sums and
charges provided for in this Lease, and in observing and keeping all covenants of this Lease on the
part of Tenant to be observed and kept, shall quietly have and enjoy the Premises during the Lease
Term, as same may be extended or renewed, without hindrance or molestation by anyone claiming by,
through or under Landlord, subject, however, to the exceptions, reservations and conditions of this
Lease.
3.7 CONDITION OF PREMISES. As of the Effective Date, Landlord represents, to the best
of Landlord’s actual knowledge and belief, that: (i) the Premises shall be in full compliance with
all applicable Laws, as such Laws then exist; (ii) there shall be no material defects in Landlord
Work; (iii) all structural elements and all of the mechanical, plumbing, electrical, HVAC and other
similar systems serving the Premises shall be in good working order; and (iv) the roof, pointing
and other exterior portions of the Premises are, and have been for the last twelve (12) months, in
good condition and free of leaks. In the event the Premises is delivered to Tenant without the
conditions described in the immediately preceding sentence having been satisfied, Landlord Work
shall not be deemed to have been Substantially Completed, and Tenant shall be entitled to send
written notice of such unsatisfied conditions to Landlord, with Landlord having thirty (30) days to
diligently prosecute the same to Substantial Completion.
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3.8 TENANT WORK. At any time after the Commencement Date, Tenant shall not perform
any Tenant Work without first: (A) submitting to Landlord the Tenant plans in reasonable detail with respect to any proposed
Tenant Work, and (B) obtaining Landlord’s prior written approval thereof. In order to obtain
Landlord’s approval of the Tenant plans, Tenant shall, within ninety (90) days of the Effective
Date, at the sole cost and expense of Tenant, prepare and submit to Landlord two (2) copies of a
complete set of the Tenant plans, which Tenant plans shall include a complete set of construction
documents, including, without limitation, plans and specifications, floor plans, and complete
detail work describing the proposed Tenant Work. In the event that Landlord disapproves the Tenant
plans, Landlord shall advise Tenant of the reasons that the Tenant plans were disapproved,
including recommendations as to changes which would make the Tenant plans acceptable to Landlord.
Upon receipt of such disapproval with such recommendations, if any, Tenant shall expeditiously
re-prepare and re-submit the Tenant plans to Landlord. Once Landlord and Tenant agree upon the
Tenant plans, then the Tenant plans shall be deemed to be final. Once the Tenant plans are final,
the Tenant plans shall not be modified or amended without the prior written consent of Landlord.
Provided that the Tenant plans are finalized in accordance with this Paragraph 3.8, then Tenant
shall, at the sole cost and expense of Tenant, expeditiously, diligently and in good faith promptly
commence and promptly complete the Tenant Work. For purposes of this 3.8, the phrase “complete”
shall be deemed to mean: (i) construction of the Tenant Work has been completed in accordance with
the Tenant plans; and (ii) a permanent certificate of occupancy has been issued by the appropriate
governmental authority with respect to the Tenant Work. All repairs to the Tenant Work shall be
Tenant Repairs. Any Tenant Work shall remain upon the Premises upon the Termination Date unless
Landlord, at Landlord’s option, shall require the restoration of the Premises to the condition
thereof on the Commencement Date, in which event Tenant shall so restore the Premises prior to the
Termination Date. All of the Tenant Work shall comply with all Laws, and shall be performed in a
good and workmanlike manner. Tenant shall pay for all of the Tenant Work, and Tenant shall prevent
any mechanic’s or materialman’s liens being filed with respect thereto. With respect to all Tenant
Work, Tenant shall adhere to the Tenant Improvement Guidelines set forth in Exhibit “E”
annexed hereto. Notwithstanding anything to the contrary contained herein, Tenant shall not be
required to comply with the foregoing requirements in the event Tenant makes or causes to be made
any single, non-structural alteration, renovation, improvement or other installation in and to the
Premises or any part thereof in an amount that exceeds Ten Thousand and No/100 ($10,000.00)
Dollars. Any interior non-structural alterations, renovations, improvements or other installations
that exceed Ten Thousand and No/100 ($10,000.00) Dollars shall require Landlord’s prior written
approval.
ARTICLE IV
COMMON AREA MAINTENANCE
COMMON AREA MAINTENANCE
4.1 COMMON AREA MAINTENANCE. (A) Tenant shall pay to Landlord, without offset or
deduction, except as set forth herein, as additional rent throughout the Lease Term, as same may be
extended or renewed, as set forth herein, Common Area Maintenance costs for the Premises. The
Common Area Maintenance costs are estimated to be One Thousand Eleven and 17/100 ($1,011.17)
Dollars per month for the first Calendar Year.
(B) For the period from the Rent Commencement Date until December 31 of the Calendar Year
containing the Rent Commencement Date, Tenant shall pay to monthly Tenant’s Share of Common Area
Maintenance costs in the amount set forth in Subparagraph 4.1(A), or in such other amount thereof
as Landlord may reasonably designate. Within one hundred twenty (120) days after the expiration of
each Calendar Year, Landlord shall determine the costs and expenditures of Common Area Maintenance
for such preceding Calendar Year. In the event that the amounts paid by Tenant in such preceding
Calendar Year for Common Area Maintenance shall be (i) less than Tenant’s Share of Common Area
Maintenance costs actually incurred by Landlord, the deficiency shall be paid by Tenant to Landlord
within thirty (30) days after receipt by Tenant of written notice of such deficiency (along with
reasonable supporting documentation therefor), or (ii) more than Tenant’s Share of Common Area
Maintenance costs paid by Tenant, then Landlord shall promptly provide Tenant with written notice
of the amount of such excess payment, and the excess shall be retained by Landlord and be credited
to the next sums due from Tenant under this Paragraph 4.1; provided, however, that in the event
that such excess is paid by Tenant during the final year of the Lease Term, then within thirty (30)
days of the expiration of the Lease Term, Landlord will pay Tenant the then-applicable excess
promptly after determination thereof. At any time, and from time to time, before, on or after the
expiration of the first Calendar Year or any subsequent Calendar Year during the Lease Term, as the
Lease Term may be extended or renewed, Landlord may estimate or revise the estimate of the costs
and expenditures for Common Area Maintenance for the remainder of the extant Calendar Year or the
ensuing Calendar Year, which determination may be based in whole or in part upon the expenses for
the extant, preceding or ensuing Calendar Year as increased by any known or anticipated increases
in the cost of Common Area Maintenance, or by any combination thereof, together with Landlord’s
determination of the Common Area Maintenance costs paid by Tenant, and Landlord shall be entitled
to notify Tenant of the monthly sum to be paid by Tenant to Landlord during the remaining months of
such Calendar Year or the next ensuing Calendar Year. Upon each such determination of Tenant’s
Share of Common Area Maintenance costs to be paid by Tenant, as provided herein, Tenant shall make
such payments in such amounts as are provided for herein until receipt of notice from Landlord of
any change in such amounts. The purpose for which such payments of Common Area Maintenance costs
shall be utilized shall be determined solely by Landlord. Subject to Special Stipulation 2 and
Special Stipulation 7.
(C) Provided no Tenant Default shall have occurred and be continuing, Tenant shall have the
right at all reasonable times within two (2) years after Landlord has provided Tenant with a
statement of the actual Common Area Maintenance costs, and at Tenant’s sole expense, to audit
Landlord’s books and records relating to the Common Area, subject to the following conditions: (i)
Tenant gives Landlord thirty (30) days’ prior written notice of Tenant’s intent to audit; (ii) the
audit occurs during Landlord’s normal business hours and in Landlord’s principal offices; (iii)
Tenant may only audit said records and books once during each Calendar Year; (iv) the audit must be
conducted and completed within twelve (12) months after receipt of the final Common Area
Maintenance costs statement for such Calendar Year; (v) Tenant provides Landlord a copy of the
auditor’s report; (vi) Tenant shall keep the results of such audit and Landlord’s books and records
strictly confidential; (vii) the audit must be conducted by an accountant experienced in conducting
such audits; and (viii) the auditor shall not be retained on a contingency basis, i.e., the
auditor’s fee shall not be based upon the results of the audit. If Tenant’s audit performed in
accordance with the preceding accurately determines Tenant overpaid Landlord, Landlord shall refund
to Tenant the amount overpaid within thirty (30) days after receipt of Tenant’s request therefor,
less any monies owed by Tenant to Landlord. If Tenant overpaid Landlord by more than five percent
(5%), Landlord also shall pay to Tenant, upon written demand, the reasonable and actual cost of the
audit or examination, said cost not to exceed Two Thousand Five Hundred and No/100 ($2,500.00)
Dollars.
ARTICLE V
UTILITIES AND SERVICES
UTILITIES AND SERVICES
5.1 UTILITIES AND SERVICES. As of the Commencement Date and at all times thereafter
for the duration of the Lease Term, Landlord shall make available to Tenant within the Premises all
facilities to connect to water, gas, electricity, sewerage, telephone and any other utility for use
in the Premises in such a manner as will allow Tenant to make normal arrangements with public
utility companies for the providing of utility services to the Premises. Subject to the foregoing,
Tenant shall contract for Utilities within seventy-two (72) hours after the Commencement Date,
including, without limitation, all costs, charges and deposits related to the hook-up, furnishing,
consumption, maintenance and installation of all Utilities. Landlord shall have no liability to
Tenant or any other party for any inadequacy, cessation, or interruption of any Utilities, unless
such inadequacy, cessation, or interruption is due to the negligence or willful misconduct of
Landlord or any member of the Landlord Group.
ARTICLE VI
REPAIRS AND MAINTENANCE
REPAIRS AND MAINTENANCE
6.1 TENANT REPAIRS. (A) All Tenant Repairs shall be made promptly, as and when
needed, by Tenant. All Tenant Repairs shall be performed at Tenant’s sole expense with materials
and labor of the kind and quality equal or superior to current industry practices and conditions.
Tenant shall keep in force at all times during the Lease Term, and all extensions and renewals
thereof, a standard maintenance agreement which requires at least a semi-annual inspection of all
heating, ventilating and air conditioning equipment, and provide a copy of such agreement to
Landlord. Tenant shall not knowingly permit waste, damage or injury to the Premises or Property.
Tenant shall surrender the Premises on the Termination Date, unless extended or renewed, broom
clean and in as good condition as when received, or in such better condition as the Premises may be
put during the Lease Term, as same may be extended or renewed, except only that deterioration
caused by normal and ordinary wear and tear, fire or other casualty not caused by Tenant, or damage
or deterioration caused by Landlord or any member of the Landlord Group. Subject to Special
Stipulation 3.
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(B) In the event that (i) Tenant fails to promptly perform the Tenant Repairs after thirty
(30) days’ prior written notice from Landlord requesting same, (ii) Landlord, in the exercise of
Landlord’s sole discretion, determines that emergency Tenant Repairs are necessary, or (iii) Tenant
Repairs are made necessary by any act or omission or negligence of Tenant or Invitees of Tenant,
then in any of such events, Landlord shall be entitled, but not obligated, to perform or cause same
to be performed without incurring any liability to Tenant for any damage caused thereby (except to
the extent caused by the negligence of Landlord or any member of the Landlord Group), and with
respect to repairs performed pursuant to (i) and (iii) above, Tenant shall pay the cost thereof
(plus, with respect to repairs performed under (i) and (iii) above, five percent (5%) to cover
Landlord’s overhead and administrative costs) to Landlord upon demand, as additional rent.
6.2 LANDLORD REPAIRS. (A) All Landlord Repairs shall be made promptly, as and when
needed, by Landlord, upon notice to Landlord (whether verbal, telephonic, e-mail, written or as
otherwise provided by Tenant) and be completed within thirty (30) days, unless such Landlord Repair
cannot reasonably be completed within such thirty (30) day period, in which event Landlord shall
commence repair promptly during such thirty (30) period and thereafter diligently pursue such
repair to completion. Such Landlord Repairs shall be made at Landlord’s sole cost and not as a part
of Common Area Maintenance costs. Further, Landlord shall be responsible to perform, after thirty
(30) days’ prior written notice from Tenant requesting same, all Common Area Maintenance, as and
when needed. Landlord shall endeavor not to interfere with Tenant’s Use of Premises while
effecting repairs, replacements and maintenance. Subject to Special Stipulation 3 and Special
Stipulation 6.
(B) In the event that (i) Landlord fails to promptly perform the Landlord Repairs after thirty
(30) days prior written notice from Tenant requesting same, (ii) Tenant, in the exercise of
Tenant’s reasonable discretion, determines that emergency Landlord Repairs are necessary, or (iii)
Landlord Repairs are made necessary by any act or omission or negligence of Landlord, any member of
the Landlord Group or Invitees of Landlord, then in any of such events, Tenant shall be entitled,
but not obligated, to perform or cause same to be performed without incurring any liability to
Landlord for any damage caused thereby (except to the extent caused by the negligence of Tenant or
any member of the Tenant Group), and with respect to repairs performed pursuant to (i) and (iii)
above, Landlord shall pay the cost thereof (plus, with respect to repairs performed under (i) and
(iii) above, five percent (5%) to cover Tenant’s overhead and administrative costs) to Tenant upon
demand. In the event that Landlord fails to reimburse Tenant such total amount within thirty (30)
days after receiving a written demand therefor (and accompanied by reasonable supporting
documentation), Tenant may offset the same from the next payments of Minimum Rent coming due until
such total amount is recovered in full.
6.3
TRADE FIXTURES AND PERSONAL PROPERTY. All Trade Fixtures installed in the Premises
by Tenant are the property of Tenant and may be removed at any time by Tenant, provided that Tenant
shall, at Tenant’s sole expense, simultaneously restore any damage to the Premises caused by such
removal. All floor covering and other removable fixtures and equipment installed in the Premises by
Tenant shall, at the option of Landlord exercised in writing, be promptly removed by Tenant on the
Termination Date, whereupon Tenant shall promptly restore any damage to the Premises caused by such
removal; provided, however, that in the event that Landlord does not so elect to cause Tenant to
remove any of said floor covering and other removable fixtures or equipment, all of same remaining
on the Premises shall become the sole property of Landlord upon the Termination Date, without the
necessity of further documentation.
6.4 ALTERATIONS BY TENANT. Except for non-structural, interior alterations costing
less than Ten Thousand and No/100 ($10,000.00) Dollars, Tenant shall not alter the Premises or any
part thereof without first: (A) submitting to Landlord written plans and specifications in
reasonable detail of any proposed alterations, and (B) obtaining Landlord’s prior written approval
thereof. All repairs to such alterations shall be Tenant Repairs. Any such alterations shall
immediately upon installation become the property of Landlord and shall remain upon the Premises
upon the Termination Date (other than removable fixtures and equipment installed in the Premises by
Tenant that Tenant designates as a Trade Fixture, which shall be governed by Paragraph 6.3 above)
unless Landlord, at Landlord’s option (to be exercised in writing at the time of approval of such
alteration), shall require the restoration of the Premises to the condition thereof on the Rent
Commencement Date, in which event Tenant shall so restore the Premises prior to the Termination
Date.
6.5 LIENS. Tenant shall promptly pay for all Work performed by or on behalf of Tenant
or any party holding the Premises through or under Tenant, and Tenant shall use all commercially
reasonable efforts so as to not permit any mechanic’s, materialman’s or any other type of lien or
claim of lien to be filed against the Premises by reason of or related to any Work supplied or
claimed to have been supplied to Tenant or anyone holding the Premises through or under Tenant. In
the event that any such mechanic’s, materialman’s or other lien or claim of lien shall at any time
be filed against or affecting Landlord or the Premises, whether said lien or claim of lien be valid
or not, Tenant shall indemnify and hold Landlord harmless from same and shall use all commercially
reasonable efforts so as to, within twenty (20) days after notice of the filing thereof, cause such
lien to be canceled and discharged of record. Nothing in this Lease shall be construed in any way
as: (A) constituting the consent, authorization or request, express or implied, of Landlord to any
contractor, subcontractor, laborer, mechanic, materialman or any other party for the performance of
any Work to or for the benefit of Landlord, or (B) giving Tenant the right, power or authority to
act as agent of Landlord or on behalf of Landlord in causing, contracting for, or permitting any
Work.
ARTICLE VII
SIGNS
SIGNS
7.1 SIGNS. Tenant shall have the right (but not the obligation) to install and
maintain Tenant’s signage upon the Premises, subject to obtaining the approval of all governmental
bodies having jurisdiction thereof. All Signs shall be Tenant Repairs and comply with all Laws.
ARTICLE VIII
INSURANCE, INDEMNITY, DAMAGE AND DESTRUCTION
INSURANCE, INDEMNITY, DAMAGE AND DESTRUCTION
8.1 TENANT’S INSURANCE. (A) Tenant shall obtain and thereafter maintain in full
force during the Lease Term, as same may be extended or renewed, with respect to the Premises and
Common Areas, commercial general public liability insurance, with contractual liability
endorsement, with coverage in amounts not less than One Million and No/100 ($1,000,000.00) Dollars
with respect to property damage and bodily injury, personal injury or death to one (1) or more
persons, which insurance policy shall identify Landlord as an additional insured party. Within
seven (7) business days of Landlord’s request, Tenant shall provide to Landlord a copy of the
Insurance Certificate. Tenant’s failure to provide a copy of the Insurance Certificate as outlined
above shall constitute a Tenant Default under the Lease, and Landlord shall have all rights and
remedies under the Lease, or at law or in equity.
(B) If Tenant utilizes vehicles in connection with the operation of Tenant’s business at the
Premises, Tenant, at Tenant’s sole cost and expense, shall keep and maintain commercial automobile
liability insurance insuring all owned, non-owned and hired vehicles used in the conduct of
Tenant’s business and operated or parked upon the Common Areas, with limits of liability not less
than Two Million and No/100 ($2,000,000.00) Dollars combined single limit for both bodily injury
and property damage.
8.2 LANDLORD’S INSURANCE. (A) Throughout the Lease Term or during any period of
occupancy holding over thereafter, Landlord shall maintain or cause to be maintained at all times
special form property insurance coverage in an amount equal to one hundred percent (100%) of the
replacement value of the Premises (less the Landlord Work described in Exhibit “C”) and
Common Area.
Page 6 of 24
(B) Landlord shall obtain and thereafter maintain in full force during the Lease Term, or
during any period of occupancy holding over thereafter, as same may be extended or renewed, with
respect to the Common Area, commercial general public liability insurance, with contractual
liability endorsement, with coverage in amounts not less than One Million and No/100
($1,000,000.00) Dollars
with respect to property damage and bodily injury, personal injury or death to one (1) or more
persons, which insurance policy shall identify Tenant as an additional insured party. Within seven
(7) business days of Tenant’s request, Landlord shall provide to Tenant a copy of the Insurance
Certificate. Landlord’s failure to provide a copy of the Insurance Certificate as outlined above
shall constitute a Landlord Default under this Lease, and Tenant shall have all rights and remedies
under this Lease, or at law or in equity.
8.3 INDEMNITY; LIABILITY OF LANDLORD. (A) Tenant shall, and does hereby, indemnify,
defend, release and save harmless the Landlord Group from and against all Claims arising out of (a)
and to the extent of the negligence or willful acts or omissions of the Tenant Group regarding the
use, occupation, repair or alteration of the Premises, (b) a Tenant Default under this Lease which
is not a result of Landlord’s negligence, willful act, omission or failure to perform Landlord’s
obligations under this Lease, or (c) any breach of representation or warranty given by Tenant
hereunder.
(B) Landlord shall, and does hereby, indemnify, defend, release and save harmless the Tenant
Group from and against all Claims arising out of (a) and to the extent of the negligence or willful
acts or omissions of the Landlord Group in connection with the Premises or Common Area, (b) a
Landlord Default under this Lease which is not a result of Tenant’s negligence, willful act,
omission or failure to perform Tenant’s obligations under this Lease, (c) from any Landlord
repairs, alteration or maintenance of or to the Premises or Common Area, or (d) any breach of
representation or warranty given by Landlord hereunder.
(C) Each party shall give the other party prompt notice of any claim or suit coming within the
purview of these foregoing indemnities. Upon the written request of any indemnitee, the indemnitor
shall assume the defense of any claim, demand or action taken against such indemnitee, and shall
upon the request of the indemnitee, allow the indemnitee to participate in the defense thereof,
such participation to be at the expense of the indemnitee. Settlement by the indemnitee without
the indemnitor’s prior written consent shall release the indemnitor from the indemnity as to the
claim, demand or action so settled.
(D) This Paragraph 8.3 shall survive the Termination Date.
8.4 INSURANCE REIMBURSEMENT. (A) Tenant shall pay to Landlord, without offset or
deduction, as additional rent throughout the Lease Term, as same may be extended or renewed, as set
forth herein, Insurance costs for the Premises. The Insurance costs are estimated to be Three
Hundred Sixty-four and 02/100 ($364.02) Dollars per month for the first Insurance Fiscal Year.
(B) For the period from the Rent Commencement Date until the end of the first Insurance Fiscal
Year, Tenant shall pay to Landlord monthly Tenant’s Share of Insurance in the amount set forth in
Subparagraph 8.4(A), or in such other amount therefor as Landlord may designate. In the event that
the amounts so paid by Tenant for Insurance the first or any subsequent Insurance Fiscal Year under
this Subparagraph 8.4(B) shall be (i) less than Tenant’s Share of the Insurance costs actually
incurred by Landlord, the deficiency shall be paid by Tenant to Landlord within thirty (30) days
after receipt by Tenant of written notice of such deficiency (along with reasonable supporting
documentation therefor), or (ii) more than Tenant’s Share thereof, then Landlord shall promptly
provide Tenant with written notice of the amount of such excess payment, and the excess shall be
retained by Landlord and be credited to the next sums due from Tenant under this Subparagraph
8.4(B). At any time, and from time to time, before, on or after the expiration of the first
Insurance Fiscal Year or any subsequent Insurance Fiscal Year during the Lease Term, as the Lease
Term may be extended or renewed, Landlord may estimate or revise the estimate of the costs and
expenditures for Insurance for the remainder of the extant Insurance Fiscal Year or the ensuing
Insurance Fiscal Year, which determination may be based in whole or in part upon the expenses for
the extant, preceding or ensuing Insurance Fiscal Year as increased by any known or anticipated
increases in the cost of Insurance, or by any combination thereof, together with Landlord’s
determination of Tenant’s Share thereof, and Landlord shall be entitled to notify Tenant of the
monthly sum to be paid by Tenant to Landlord during the remaining months of such Insurance Fiscal
Year or the next ensuing Insurance Fiscal Year. Upon each such determination of Tenant’s Share of
Insurance, as provided herein, Tenant shall make such payments in such amounts as are provided for
herein until receipt of notice from Landlord of any change in such amounts.
(C) Any delay or failure of Landlord in computing or billing under this Paragraph 8.4 shall
not prejudice the right of Landlord to thereafter render bills for such period or any subsequent
period, nor constitute a waiver of or in any way impair the continuing obligation of Tenant to pay
Tenant’s Share of Insurance. Photostatic copies of bills for Insurance submitted by Landlord to
Tenant shall be conclusive evidence of the actual amount thereof.
(D) Within thirty (30) days after receipt of written request and notice from Tenant to
Landlord, Landlord shall provide Tenant the financial data used to determine the total Insurance
for the prior Insurance Fiscal Year, unless such written request is made prior to March 1 of the
Insurance Fiscal Year following the subject Insurance Fiscal Year pertaining to the actual
Insurance cost, in which event Landlord shall have sixty (60) days to provide such financial data
to Tenant.
8.5 DAMAGE BY FIRE OR OTHER CASUALTY. Following the date of any damage or destruction
and during any period of repair or reconstruction, unless the damage or destruction is caused by
any act, omission or negligence of Tenant or any Invitees of Tenant, all Aggregate Rent shall
equitably ▇▇▇▇▇ from the date of such damage until the date that Tenant is permitted to reoccupy
the Premises. Tenant shall immediately notify Landlord of any damage or destruction to the
Premises. In the event that (A) by reason of any damage or destruction, in Tenant’s reasonable
discretion, the Premises are rendered unusable for the Use of Premises, (B) the Premises are
damaged as a result of a casualty or event which is not adequately covered by Landlord’s fire
insurance, in an amount more than the aggregate sum of Minimum Rent for the Calendar Year in which
the damage or destruction occurs, (C) the Premises is damaged in whole or in part during the last
twelve (12) months of the Lease Term or any extension or renewal thereof, (D) the Premises is
damaged to the extent that the Restoration Cost equals or exceeds thirty percent (30%) of the
monetary value of such building at the time of such damage, then, in any of such events, Landlord
or Tenant may terminate this Lease by notice of termination delivered at any time after the
occurrence of such damage, whereupon this Lease shall expire upon the date set forth in such
notice, and Tenant shall vacate and surrender the Premises to Landlord on such date. In the event
that neither Landlord nor Tenant elect to terminate this Lease pursuant to the foregoing, or that
the damage does not meet the criteria of (A) — (D) above, Landlord shall promptly commence
reconstruction of the Premises. Landlord and Tenant shall give written notice to the other of such
election within sixty (60) days after the occurrence of such damage or destruction. In the event
that neither Landlord nor Tenant elect to terminate this Lease pursuant to the foregoing, or that
the damage does not meet the criteria of (A) — (D) above, Landlord shall promptly commence
reconstruction of the Premises. Notwithstanding anything to the contrary contained herein, Tenant
shall have the right to terminate this Lease with thirty (30) days’ prior written notice to
Landlord if, in Tenant’s reasonable judgment, the portion of the Premises remaining cannot be
reasonably utilized for the Use of Premises.
8.6 MUTUAL WAIVER OF SUBROGATION. Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby waive and release all Claims against each other, and against the
agents and employees of each other, for any loss or damage sustained by each other to the extent
such Claims are or could be insured against under any standard broad form policy of fire and
extended coverage insurance, or under any fire and extended casualty insurance policy maintained by
Landlord or Tenant under this Lease, or required to be maintained by Landlord or Tenant under this
Lease, regardless of whether such policy is in effect at the time of the loss. Landlord and Tenant
will cause their respective insurance carriers to issue appropriate waiver of subrogation rights
endorsements to all policies of insurance carried in connection with damage to the Premises or any
portions thereof or any personal property thereon; provided, however, that failure to obtain such
endorsements shall not affect the release hereinabove given. Tenant will cause all other occupants
of the Premises claiming by, under or through Tenant to execute and deliver to Landlord a waiver of
Claims similar to the aforementioned waiver and to obtain such waiver of subrogation rights
endorsements.
Page 7 of 24
ARTICLE IX
ASSIGNMENT, SUBLETTING AND SUCCESSORS
ASSIGNMENT, SUBLETTING AND SUCCESSORS
9.1 ASSIGNMENT AND SUBLETTING. Without the express prior written consent of Landlord,
not to be unreasonably withheld, conditioned, or delayed, neither Tenant, nor Tenant’s legal
representatives or successors in interest by operation of Laws or otherwise, shall directly or
indirectly assign this Lease or any interest therein, or sublet all or any portion of the Premises,
or use or permit the Premises or any portion thereof to be used, occupied or managed by any party
or parties other than Tenant. Consent to any assignment or
sublease shall not vitiate or waive this provision, and all later assignments and subleases
shall likewise be made only upon the prior written consent of Landlord. In the event that Tenant
shall desire to assign this Lease or sublet the Premises or any portion thereof, then Tenant shall:
(i) promptly notify Landlord in writing of such desire, identifying of such assignee or subtenant,
and furnishing Landlord with commercially reasonable financial and business information about such
proposed assignee or subtenant, (ii) simultaneously pay to Landlord a non-refundable processing fee
in the amount of Five Hundred and No/100 ($500.00) Dollars. Upon receipt of a request to assign or
sublet as set forth in the immediately preceding sentence, Landlord shall be entitled, at
Landlord’s sole reasonable option, to approve or disapprove such assignment or sublease. Any
assignment or sublease which is not consented to by Landlord shall be void ab initio. Tenant
shall, upon any assignment or subletting, furnish Landlord with a true and complete copy of all
assignment or sublease documents, and shall advise Landlord of all rental amounts pursuant to such
assignment or sublease. Subtenants or assignees shall not prepay any rental to any party other
than Landlord more than one (1) month in advance, and shall become, at Landlord’s option, liable
directly to Landlord if Landlord so elects. In the event that this Lease is assigned or sublet,
Landlord may, and is hereby empowered, at Landlord’s option, to collect rent directly from the
assignee or subtenant; in the event that Landlord does so collect rent from such assignee or
subtenant, Landlord shall apply the net amount received by Landlord to the Aggregate Rent payable
by Tenant, and no such receipt of such rent shall be deemed to be: (x) a waiver of the covenant
herein against assignment and subletting, (y) an acceptance of the assignee or subtenant as
Landlord’s tenant, or (z) a release of Tenant from the obligations of Tenant under this Lease.
Notwithstanding anything contained in this Lease to the contrary, no subtenant or assignee (unless
such subtenant or assignee assumed the Lease pursuant to a Permitted Transfer) may exercise, and
Tenant shall have no right to exercise, for the benefit of any such assignee or subtenant, any
expansion option, right of first refusal option, renewal or extension option, or similar option or
rights under this Lease. No subtenant or assignee shall be entitled to further assign any interest
under this Lease, or sublet all or any portion of the Premises without the express prior written
consent of Landlord, not to be unreasonably withheld, conditioned, or delayed. In the event that
this Lease shall be assigned or the Premises sublet by Tenant at a rental rate, including, without
limitation, minimum rent and all other sums payable thereunder, that exceeds the Minimum Rent to be
paid to Landlord by Tenant hereunder, and net of all of Tenant’s costs and expenses associated with
said sublease or assignment, then and in such event one-half (1/2) of all such excess over the
Minimum Rent shall be immediately paid to Landlord by Tenant upon receipt by Tenant as additional
rent due from Tenant to Landlord. Notwithstanding the foregoing, no Landlord consent shall be
required for an assignment of this Lease or a sublet of all or any portion of the Premises to any
subsidiary, affiliate or related company, or to any successor company as a result of a merger,
consolidation, sale of stock or assets, or other similar business reorganization (each, a
“Permitted Transfer”), provided each such Permitted Transfer shall be subject to the
following express conditions: (i) no such assignment shall be deemed to release Tenant from
continuing liability throughout the Lease Term; (ii) Tenant’s assignee must expressly assume in a
written instrument delivered to and reasonably acceptable by Landlord all of the obligations of
Tenant under this Lease; and (iii) Tenant must provide notice and a representation that the above
conditions are met to Landlord within thirty (30) days of such assignment, sale, or transfer.
Landlord shall furnish the appropriate documentation in connection with any such assignment. Tenant
shall in all events, including, without limitation, a Permitted Transfer, remain fully liable to
Landlord for all obligations of Tenant under this Lease, regardless of any assignment or subletting
or any consent by Landlord thereto, or any expansion, renewal, extension, modification or change
of, to or affecting the Lease or the Lease Term.
9.2 SUCCESSORS AND ASSIGNS. The provisions of this Lease shall bind and inure to the
benefit of Landlord and Tenant and their respective successors, heirs, legal representatives and
assigns; provided, however, that no assignment or subletting by, through or under Tenant in
violation of Paragraph 9.1 shall vest in such assignee or subtenant any right, title or interest
whatsoever. Upon any sale or conveyance of the Premises, provided that such new owner assumes
Landlord’s covenants and obligations hereunder, the Landlord named herein shall be, and hereby is,
entirely free and relieved of all covenants and obligations of Landlord hereunder arising or
occurring on or after such sale or conveyance.
ARTICLE X
CONDEMNATION
CONDEMNATION
10.1 CONDEMNATION. In the event of Condemnation of all of the Premises, this Lease
shall terminate as of the date that the condemning authority is entitled to legal possession of the
Premises, and Tenant shall pay Aggregate Rent to Landlord until such date. In the event of
Condemnation of only a part of the Premises (A) then, effective as of the date of vesting of title,
the Aggregate Rent hereunder shall be abated in an amount apportioned according to the area of the
Premises so condemned, and (B) if in Tenant’s commercially reasonable judgment such taking renders
the Premises unsuitable for the Use of Premises, Tenant may, at Tenant’s option, terminate this
Lease by notifying Landlord of such termination; if Tenant elects not to so terminate this Lease,
this Lease shall be and remain unaffected by such Condemnation, except that the Aggregate Rent
hereunder shall be abated to the extent, if any, hereinbefore provided. In the event of any
Condemnation of all or a portion of the Premises, Tenant shall be entitled to an award for Tenant’s
relocation expenses and the leasehold improvements placed on the Premises by Tenant at Tenant’s
expense; Landlord shall be entitled to receive the balance of the award in such Condemnation
proceeding, including, without limitation, any award for the value of the unexpired portion of the
Lease Term and the interest vested by this Lease in Tenant, and Tenant hereby expressly and
irrevocably assigns to Landlord all right, title and interest of Tenant now or hereafter arising in
or to any such award or any part thereof, and Tenant shall be entitled to receive no part of such
award. Any restoration to the Premises made necessary by Condemnation shall be performed by
Landlord at Landlord’s sole expense.
ARTICLE XI
DEFAULT
DEFAULT
11.1 TENANT DEFAULT. (A) Upon the occurrence of any one (1) or more events of Tenant
Default, Landlord may, at Landlord’s option, without any demand or notice whatsoever, except as
expressly required in this Paragraph 11.1:
(i) Terminate this Lease by giving Tenant notice of termination, which shall constitute a
Default Termination, in which event this Lease shall expire and terminate on the date specified in
such notice of Default Termination, and Tenant shall remain liable for all obligations of Tenant
under this Lease arising up to the date of Default Termination, and Tenant shall surrender the
Premises to Landlord on the date specified in such notice; or
(ii) Without terminating this Lease, but with written notice to Tenant, Landlord may in
Landlord’s own name but as agent for Tenant enter into and upon take possession of the Premises or
any part thereof, and, at Landlord’s option, remove persons and property therefrom, and such
property, if any, may be removed and stored in a warehouse or elsewhere at the cost of, and for the
account of, Tenant, all without being deemed guilty of trespass or being liable for any loss or
damage which may be occasioned thereby, and Landlord may rent the Premises or any portion thereof
as the agent of Tenant with or without advertisement, and by private negotiations and for any term
upon such terms and conditions as Landlord may deem necessary or desirable in order to relet the
Premises. Landlord shall in no way be responsible or liable for any rental concessions or any
failure to rent the Premises or any part thereof, or for any failure to collect any rent due upon
such reletting. Upon each such reletting, all rentals received by Landlord from such reletting
shall be applied: first, to the payment of any indebtedness (other than any rent due hereunder)
from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting,
including, without limitation, brokerage fees and attorneys’ fees and costs of alterations and
repairs; third, to the payment of rent and other charges then due and unpaid hereunder; and the
residue, if any, shall be held by Landlord to the extent of and for application in payment of
future rent as the same may become due and payable hereunder. In reletting the Premises as
aforesaid, Landlord may grant rent concessions and Tenant shall not receive credit therefore. In
the event that such rentals received from such reletting shall at any time or from time to time be
less than sufficient to pay to Landlord the entire sums then due from Tenant hereunder, Landlord
shall be entitled to receive from Tenant the amount of any such deficiency, provided, however, that
the amount of such deficiency payment shall not exceed the difference between the rentals which
would have been due from Tenant hereunder had Tenant not defaulted, and the aggregate reasonable
rental value of the Premises, as described in Subparagraph 11.1(A)(iii) below. Such deficiency
shall, at Landlord’s option, be calculated and paid monthly. No such reletting shall be construed
as an election by Landlord to terminate this Lease unless a written notice of such election has
been given to Tenant by Landlord. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for any such previous Tenant Default,
provided such Tenant Default has not been cured; or
Page 8 of 24
(iii) Terminate this Lease and recover from Tenant all damages which Landlord may incur by
reason of Tenant Default, including, without limitation, a sum which, at the date of Default
Termination represents the present value (discounted at a rate equal to the then average rate for
▇▇▇▇▇’▇ “AAA” rated corporate bonds with maturities equal to the Remaining Term) of the excess, if
any, of (x) the Aggregate Rent, and all other charges and sums which would have been payable
hereunder by Tenant for the Remaining Term, over (y) the aggregate reasonable rental value of the
Premises for the same period, all of which present value of such excess sum shall be immediately
due and payable. In determining the aggregate reasonable rental value pursuant to item (y) above,
all relevant factors shall be considered as of the time of Default Termination, including, without
limitation (aa) the length of time remaining in the Lease Term, (bb) the then-current market
conditions in the general area in which the Premises are located, (cc) the likelihood of reletting
the Premises for a period of time equal to the Remaining Term, (dd) the net effective rental rates
(taking into account all concessions) then being obtained for space of similar type and size in
similar type buildings in the general area in which the Premises are located, (ee) the vacancy
levels in comparable quality buildings in the general area in which the Premises are located, (ff)
the anticipated duration of the period that the Premises will be unoccupied prior to reletting,
(gg) the anticipated cost of reletting, and (hh) the current levels of new construction that will
be completed during the remainder of the Lease Term and the degree to which such new construction
will likely affect vacancy rates and rental rates in comparable quality buildings in the general
area in which the Premises are located. Such payment shall constitute liquidated damages to
Landlord, Landlord and Tenant acknowledging and agreeing that it is difficult to determine the
actual damages Landlord would suffer by virtue of Tenant Default and that the agreed-upon
liquidated damages are not punitive or a penalty and are just, fair and reasonable, all in
accordance with O.C.G.A. § 13-6-7; or
(iv) Without liability to Tenant or any other party and without constituting a constructive or
actual eviction, suspend or discontinue furnishing or rendering to Tenant any Work, Utilities or
other services, so long as the Tenant Default continues; or
(v) Allow the Premises to remain unoccupied and collect rent from Tenant as it comes due; or
(vi) Pursue such other remedy or remedies as are available at law or equity, including,
without limitation, an action for specific performance requiring Tenant to perform Tenant’s
obligations under this Lease.
(B) Landlord’s pursuit of any remedy or remedies, including, without limitation, any one (1)
or more of the remedies stated in Subparagraph 11.1(A), shall not (i) constitute an election of
remedies or preclude pursuit of any other remedy or remedies provided in this Lease or any other
legal or equitable remedy or remedies separately or concurrently or in any combination, or (ii)
serve as the basis for any claim of actual or constructive eviction, or allow Tenant to withhold
any payments under this Lease.
(C) In the event of Default Termination, any funds of Tenant held by Landlord may be applied
by Landlord to any damages payable by Tenant (whether provided for herein or by Laws) as a result
of such Default Termination.
(D) Neither the commencement of any action or proceeding, nor the settlement thereof, nor
entry of judgment thereon shall bar Landlord from bringing subsequent actions or proceedings from
time to time, nor shall the failure to include in any action or proceeding any sum or sums then due
be a bar to the maintenance of any subsequent actions or proceedings for the recovery of such sum
or sums so omitted.
(E) No termination of this Lease prior to the normal expiration thereof, by lapse of time or
otherwise, shall affect Landlord’s right to collect rent for the period prior to the Termination
Date. No surrender of the Premises or any part thereof by delivery of keys or otherwise shall
operate to terminate this Lease unless and until such termination is expressly accepted in writing
by an authorized officer of Landlord.
(F) Should any legal action be commenced in connection with this Lease, the prevailing party
in such action shall be entitled to recover, in addition to court costs, such amount as the court
may adjudge as reasonable attorneys’ fees.
(G) The foregoing provisions of this Paragraph 11.1 shall apply to any renewal or extension of
this Lease.
11.2 LANDLORD’S DEFAULT. If Landlord fails in the performance of any of Landlord’s
obligations under this Lease, Tenant’s remedy therefor shall be an action for either (i) damages,
or (ii) specific performance. However, prior to any such action, Tenant shall give Landlord
written notice specifying such Landlord Default with particularity, and Landlord shall thereupon
have thirty (30) days in which to cure any such Landlord Default or such longer time as required
under the exercise of due diligence, if the Landlord Default is not curable within the thirty (30)
day period, provided Landlord commences to cure such Landlord Default within such thirty (30) day
period and thereafter diligently completes such cure.
ARTICLE XII
MORTGAGES; ESTOPPELS
MORTGAGES; ESTOPPELS
12.1 MORTGAGES. (A) Subject to Subparagraph 12.1(E) below, upon request by any holder
of a First Mortgage, Tenant shall subordinate Tenant’s rights under this Lease to such First
Mortgage, and to any advances to be made thereunder and the interest thereon, and to all renewals,
modifications, replacements and extensions thereof. Tenant’s rights under this Lease shall not be
subordinate to the holder of the First Mortgage unless the holder thereof has requested that this
Lease be subordinate thereto, provided that any such subordination shall be subject to Subparagraph
12.1(E) below. Any Mortgagee, whether the holder of the First Mortgage or any other Mortgage
affecting the Premises, may elect to have this Lease made prior to such Mortgage, and in the event
of such election and upon notification by any such Mortgagee to Tenant to that effect, this Lease
shall be deemed prior in lien to any such Mortgage, whether this Lease is dated or filed prior to
or subsequent to the date of such Mortgage.
(B) Subject to Subparagraph 12.1(E) below, Tenant shall, in the event of exercise of the power
of sale or deed in lieu of foreclosure under any Mortgage, attorn to and recognize such purchaser
as landlord under this Lease; provided that said purchaser shall not be liable for any act or
omission of any prior landlord or subject to any offsets or defenses which Tenant may have against
any prior landlord or be bound by any amendment or modification of this Lease made without the
prior written consent of such Mortgagee. Should any Mortgagee or purchaser require a separate
agreement of attornment regarding the matters covered by this Lease, Tenant shall promptly, upon
request, enter into any such attornment agreement.
(C) At any time and from time to time, Tenant and Landlord shall, upon request from the other,
execute, acknowledge and deliver. within ten (10) days after receipt of such request, to the
requesting party or any potential purchaser of the Premises, or to any Mortgagee or potential
Mortgagee, an estoppel certificate or statement in writing certifying to all or any part of the
following information as shall be requested, provided that such facts are true and ascertainable:
(i) that this Lease constitutes the entire agreement between Landlord and Tenant, (ii) that this
Lease is unmodified and in full force and effect (or, if there have been modifications, that this
Lease is in full force and effect as modified and stating the modification), (iii) the specific
itemized amounts of Aggregate Rent under this Lease and the dates to which such amounts have been
paid, (iv) that there is no prepaid Aggregate Rent, (v) the amount of the Security Deposit, (vi)
that the Premises have been satisfactorily completed, (vii) that Tenant has accepted possession of
the Premises, (viii) that the Lease Term has commenced, (ix) that Tenant is in possession of the
Premises, (x) that the actual Rent Commencement Date has occurred, (xi) that all conditions
precedent to the validity and enforceability of this Lease have been fully satisfied, and (xii)
that there are no defaults or offsets which Tenant or Landlord have against enforcement of this
Lease by the requesting party. Tenant’s estoppel certificate or statement shall also contain such
other information as may be reasonably or customarily required by the present or potential
purchaser or Mortgagee, and shall be completed and delivered by Tenant as soon as practicable, but
in no event more than ten (10) days after request therefor.
(D) In the event that, in connection with obtaining financing or refinancing for the Premises,
any banking, insurance or other recognized institutional lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant shall not unreasonably
withhold, delay or defer Tenant’s consent thereto, provided that such modifications shall be
subject to Subparagraph 12.1(E) below and shall not materially increase the obligations of Tenant
hereunder or materially adversely affect the interest of Tenant hereby created.
(E) Notwithstanding anything to the contrary contained herein, Landlord hereby represents
that, as of the Effective Date, there is no existing ground or underlying lease, mortgage or deed
of trust affecting all or any part of the Premises. Furthermore, Tenant agrees that, provided that
any future ground lessor or mortgagee shall agree to honor and abide by the terms of the Lease and
give Tenant a non-disturbance agreement, in mutually agreeable form, providing in effect that
Tenant’s right to use and occupy the Premises will not be deprived as a result of such termination
or foreclosure, so long as Tenant shall not be in Tenant Default, then in such event, the Lease
shall be
subordinate to any future ground lease, mortgage or deed of trust placed against the Premises,
and Tenant shall attorn to the future ground lessor or mortgagee upon termination of the ground
lease or foreclosure of the mortgage or deed of trust, respectively.
Page 9 of 24
ARTICLE XIII
TAXES
TAXES
13.1 TAX REIMBURSEMENT. (A) Tenant shall pay to Landlord, without offset or
deduction, as additional rent throughout the Lease Term, as same may be extended or renewed, as set
forth herein, Taxes for the Premises. The Taxes are estimated to be Two Thousand Three Hundred
Eighty-six and 35/100 ($2,386.35) Dollars per month for the first Tax Year.
(B) For the period from the Rent Commencement Date until December 31 of the Tax Year
containing the Rent Commencement Date, Tenant shall pay to Landlord monthly Tenant’s Share of Taxes
in the amount set forth in Subparagraph 13.1(A), or in such other amount therefore as Landlord may
designate. Upon final determination of the Taxes for such preceding Tax Year, Landlord shall
compute Tenant’s Share thereof, and a summary shall be furnished to Tenant reflecting the actual
amount of the Taxes for such Tax Year. In the event that the amounts so paid by Tenant for Taxes in
the first (1st) or any subsequent Tax Year under this Paragraph 13.1 shall be (i) less than
Tenant’s Share thereof, the deficiency shall be paid by Tenant to Landlord within thirty (30) days
after receipt by Tenant of written notice of such deficiency (along with reasonable supporting
documentation therefor), or (ii) more than Tenant’s Share thereof, then Landlord shall promptly
provide Tenant with written notice of the amount of such excess payment, and the excess shall be
retained by Landlord and be credited to the next sums due from Tenant under this Paragraph 13.1;
provided, however, that in the event that such excess is paid by Tenant during the final year of
the Lease Term, then upon the expiration of the Lease Term, Landlord will pay Tenant the
then-applicable excess promptly after determination thereof. At any time, and from time to time,
before, on or after the expiration of the first (1st) Tax Year or any subsequent Tax Year during
the Lease Term, as the Lease Term may be extended or renewed, Landlord may estimate or revise the
estimate of the costs and expenditures for Taxes for the remainder of the extant Tax Year or the
ensuing Tax Year, which determination may be based in whole or in part upon the expenses for the
extant, preceding or ensuing Tax Year as increased by any known or anticipated increases in the
cost of Taxes, or by any combination thereof, together with Landlord’s determination of Tenant’s
Share thereof, and Landlord shall be entitled to notify Tenant of the monthly sum to be paid by
Tenant to Landlord during the remaining months of such Tax Year or the next ensuing Tax Year. Upon
each such determination of Tenant’s Share of Taxes, as provided herein, Tenant shall make such
payments in such amounts as are provided for herein until receipt of notice from Landlord of any
change in such amounts.
(C) Landlord may, at Landlord’s option, contest or seek a reduction of any Taxes, when it is
reasonable to do so, and the cost for any such contest or protest shall be considered part of the
Taxes.
(D) No delay or failure of Landlord in computing or billing Tenant’s Share of Taxes shall
prejudice the right of Landlord to thereafter render bills for such period or any subsequent
period, nor constitute a waiver of nor in any way impair the continuing obligation of Tenant to pay
Tenant’s Share of Taxes. In the event that the Property does not comprise exactly one tax parcel,
Tenant shall pay Tenant’s Share of Taxes based upon the reasonable estimate of Landlord of the
amount thereof. Photostatic copies of bills for Taxes submitted by Landlord to Tenant shall be
conclusive evidence of the actual amount thereof.
(E) Within thirty (30) days after receipt of written request and notice from Tenant to
Landlord, Landlord shall provide Tenant the financial data used to determine the total Taxes for
the prior Tax Year, unless such written request is made prior to March 1 of the Tax Year following
the subject Tax Year pertaining to the actual Taxes cost, in which event Landlord shall have sixty
(60) days to provide such financial data to Tenant.
13.2 PERSONAL PROPERTY. Tenant shall pay, prior to delinquency, all personal property
taxes payable with respect to all property of Tenant located in the Premises, and shall promptly
provide Landlord upon request therefor with proof of such payment.
ARTICLE XIV
RULES AND REGULATIONS
RULES AND REGULATIONS
14.1 RULES AND REGULATIONS. The rules and regulations annexed hereto as Exhibit
“D”, and all reasonable rules and regulations which Landlord may hereafter from time to time
adopt and promulgate for the government and management of the Premises, are hereby made a part of
this Lease and shall, during the Lease Term, as same may be extended or renewed. Written notice of
such additional rules and regulations, if any, shall be given to Tenant and Tenant agrees upon
receipt thereof to comply with and observe all such reasonable rules and regulations, provided such
rules and regulations do not conflict with the terms and conditions of this Lease or adversely
affect or impair Tenant’s ability to conduct the Use of Premises.
ARTICLE XV
MISCELLANEOUS
MISCELLANEOUS
15.1 NO ESTATE IN LAND. This contract shall create the relationship of landlord and
tenant between the parties hereto, and no estate shall pass out of Landlord. Tenant has only a
usufruct hereunder, not subject to levy and sale, and not assignable by Tenant except as expressly
provided in Paragraph 9.1.
15.2 HOLDING OVER. Landlord and Tenant covenant and agree that Tenant has the
unconditional right (but not the obligation) to remain in possession of the Premises or any part
thereof after the Termination Date for a period of up to six (6) months at the same rental rate in
effect immediately prior to the Termination Date. In the event that Tenant elects to remain in the
Premises after the Termination Date, Tenant shall provide Landlord with not less than sixty (60)
days prior written notice of such election. Landlord shall have fifteen (15) days after receipt of
Tenant’s notice in which to provide Tenant with written notice of Landlord’s objection to Tenant
holding over in the Premises after the Termination Date. In that event that Landlord does not
provide Tenant with notice of Landlord’s objection within such fifteen (15) day period, Landlord
shall be deemed to have consented to Tenant holding over in the Premises. Upon receipt of
Landlord’s consent or deemed consent, Tenant shall be a tenant-at-will and such tenancy shall be
subject to all the provisions hereof, except that the Minimum Rent for the entire hold-over period
shall be at the rate of one hundred twenty-five percent (125%) of the rate of Minimum Rent in
effect immediately prior to the Termination Date, and there shall be no extension or renewal of
this Lease by operation of Laws. In the event that Landlord objects in writing to Tenant’s holding
over beyond the Termination Date, then Tenant shall be a tenant at sufferance and shall owe
Landlord compensation for the period of occupancy subsequent to the Termination Date at a rate of
one hundred twenty-five percent (125%) of the Minimum Rent in effect immediately prior to the
Termination Date, plus Tenant shall pay all other additional rents and other sums under this Lease,
and there shall be no extension or renewal of this Lease by operation of Laws. Nothing in this
Paragraph 15.2 or elsewhere in this Lease shall be construed as consent by Landlord to possession
of the Premises by Tenant after the six (6) month period after the Termination Date.
15.3 RECORDING. Neither this Lease nor any memorandum thereof shall be recorded in
any public record without Landlord’s and Tenant’s express prior written consent.
15.4 NON-WAIVER. No failure by Landlord to timely ▇▇▇▇ Tenant for any payments
hereunder, or to insist upon the strict performance, in any of one or more instances, upon any
breach of any term, covenant or condition herein contained shall be deemed to be a waiver of such
term, covenant or condition, nor of any subsequent breach of the same or any other term, covenant
or condition herein contained. Any subsequent acceptance by Landlord of any Minimum Rent,
additional rent, other rent, or any other sums due hereunder shall not be deemed to be a waiver of
any preceding Tenant Default, other than the failure of Tenant timely to pay the particular sum so
accepted, regardless of Landlord’s knowledge of such preceding Tenant Default at the time of
acceptance of such sum. No failure by Tenant to insist upon the strict performance, in any of one
or more instances, upon any breach of any term, covenant or condition herein contained shall be
deemed to be a waiver of such term, covenant or condition, nor of any subsequent breach of the same
or any other term, covenant or
condition herein contained. No covenant, term or condition of this Lease shall be deemed to
have been waived by Landlord or Tenant unless such waiver be specifically expressed in writing by
an authorized officer of the party granting such waiver.
Page 10 of 24
No payment by Tenant or receipt by Landlord of an amount less than the Minimum Rent or other
rent or other sum herein stipulated shall be deemed a waiver of Landlord’s right to receive the
entire amount herein stipulated. No partial payment or endorsement on any check or letter
accompanying such payment or rent shall be deemed an accord and satisfaction, and Landlord may
accept such payment without prejudice to Landlord’s right to collect the balance of any rents due
under the terms of this Lease. After service of any notice of termination, or other notice, or
commencement of any suit or dispossessory or distress proceeding, Landlord may receive and collect
any rent due and such collection or receipt shall not operate as a (A) reinstatement, continuance,
renewal or extension of the Lease Term, or (B) waiver affecting such notice, suit or proceeding.
15.5 TIME OF THE ESSENCE. Time is of the essence of this Lease and all provisions
contained herein.
15.6 SEVERABILITY. If any clause, provision, Article, Paragraph or Subparagraph of
this Lease is or becomes unconstitutional, illegal, invalid or unenforceable because of present or
future Laws, the remaining parts of this Lease shall not be affected thereby unless such invalidity
is, in the reasonable determination of either Tenant or Landlord, essential to the rights of both
parties, in which event such party shall be entitled to terminate this Lease by giving notice to
the other party.
15.7 SPECIAL STIPULATIONS. Any Special Stipulations which are annexed hereto shall
control if in conflict with any of the provisions of this Lease.
15.8 NOTICES. All notices or demands with respect to this Lease shall be in writing.
No notices or demands to either party with respect to performance of any of such party’s
obligations hereunder shall be required unless expressly required under the terms of this Lease.
In the event that the term Tenant, as used in this Lease, refers to more than one (1) party, any
notice, demand, consent, approval, request, ▇▇▇▇ or statement given as aforesaid to any of such
parties shall be deemed to have been duly given to Tenant. Rejection or refusal by Tenant to
accept, or inability to deliver, because of changed address of which no notice has been received,
shall also constitute properly given notice or demand. All notices or demands to Tenant or
Landlord shall be delivered by either (i) hand-delivery, (ii) nationally recognized courier service
such as Federal Express, or (iii) certified mail, return receipt requested, to the addresses of
Landlord and Tenant specified in Subparagraph 1.1(B) and Subparagraph 1.1(D), respectively, or at
such other place as an authorized officer of Landlord or Tenant may designate to the other in
writing, and such notices or demands to the parties shall be deemed validly and effectively given
only if and when said hand delivery, couriered delivery or certified letter shall be actually
received by such party. Upon request by Landlord or Mortgagee, a copy of all notices or demands to
Landlord shall also be sent to Mortgagee, and Tenant shall not exercise any remedies due to any
default by Landlord under this Lease unless and until Mortgagee shall have received such notice or
demand and failed to cure such default within thirty (30) days after such receipt.
15.9 HEADINGS AND TERMINOLOGY. The headings or captions contained in this Lease are
for convenience and reference only and in no way define, affect or limit the scope or content of
this Lease. All personal pronouns, if any, used in this Lease, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall include the plurals;
and the plurals shall include the singular. All references in this Lease to any Article, Paragraph
or Subparagraph shall refer to the corresponding Article, Paragraph or Subparagraph of this Lease
unless specific reference is made to the articles, paragraphs, subparagraphs, sections, subsections
or subdivisions of another document or instrument.
15.10 ENTIRE AGREEMENT; AMENDMENT; CONSENTS. This Lease sets forth the entire
agreement between the parties hereto concerning the Premises, and no representation, inducement,
promise or agreement, oral or otherwise, between the parties not embodied herein, shall be of any
force or effect. Tenant acknowledges that no real estate broker or agent, nor any of Landlord’s
agents, managers or leasing representatives have the power or authority to amend, modify, terminate
or accept a surrender of this Lease, and such power and authority is vested solely in Landlord
acting in writing through Landlord’s duly authorized corporate officers. No amendment,
modification, termination, change or addition to this Lease shall be binding upon either party
unless reduced to writing and signed by Tenant and a duly authorized corporate officer of Landlord.
Any consent required or requested of Landlord under this Lease or any portion thereof, including,
without limitation, Paragraph 9.1, must be in writing, and may be granted or withheld by Landlord
in Landlord’s sole and absolute discretion, which may be exercised arbitrarily, without inquiry
into the reasonableness or unreasonableness of the granting or withholding of same.
15.11 TENANT OBLIGATIONS. Intentionally Deleted.
15.12 AGENT. (A) In the event that an Agent is designated in Subparagraph 1.1(L), the
terms of this Subparagraph 15.12 (A) shall apply. Agent is not a party to this Lease, and has no
authority, express or implied, to (i) amend, modify, renew, extend or terminate this Lease, (ii)
bind Landlord in any fashion, (iii) make any representation, statement, warranty or agreement as
agent or on behalf of Landlord, or (iv) give or receive any notice or demand on behalf of Landlord.
In the event that Landlord sells or transfers the Premises, and the purchaser or transferee
thereof assumes the obligations of Landlord under the Commission Agreement, then in such event
Landlord shall be fully released from any further obligations to Agent under the Commission
Agreement. Tenant hereby represents and warrants to Landlord that Tenant has had no involvement,
contact or agreement with any real estate broker or agent with respect to the Premises other than
Agent. Tenant does hereby indemnify and hold harmless Landlord from and against all Claims
asserted by any party other than Agent for real estate brokerage commission or fees arising out of
or related to this Lease, which indemnity shall survive the Termination Date.
(B) In the event that Tenant elects to employ or utilize any estate broker or other real
estate agent, after the initial mutual execution of this Lease, with respect to amending,
modifying, renewing, extending, expanding or terminating this Lease, then Tenant, and not Landlord,
shall be solely responsible for the payment of all real estate brokerage commission and other
compensation in any way related to any such amendment, modification, renewal, extension, expansion
or termination.
15.13 FORCE MAJEURE. Except as may otherwise be expressly provided to the contrary in
this Lease, Landlord and Tenant shall be excused for the period of time equivalent to any delay in
performance of any obligations hereunder when such delay is caused by the wrongful or negligent
acts or omissions of the other party or by causes beyond such party’s control, including, without
limitation, all strikes, riots, lockouts, labor disputes, civil disturbance, war, war-like
operations, invasions, rebellions, hostilities, military or usurped power, sabotage, failure or
unavailability of Utilities, governmental regulations or controls, acts of God, fires or other
casualty, unseasonably adverse weather conditions, rain, or inability to obtain any material or
service. Notwithstanding the foregoing, nothing contained in this Paragraph 15.13 shall excuse
Tenant from paying in a timely fashion any payments due under the terms of this Lease, including,
without limitation, any Aggregate Rent.
ARTICLE XVI
CONFIDENTIALITY
CONFIDENTIALITY
16.1 CONFIDENTIALITY. Neither Landlord nor Tenant nor any of their respective
officers, agents, directors, managers, contractors, affiliates, accountants, licensees, employees,
or attorneys, shall disclose any terms of this Lease to any third party whatsoever except as
expressly allowed in this Paragraph 16.1, and shall use commercially reasonable efforts to limit
the disclosure of the terms of this Lease only to those employees who have a reasonable business
need to be aware of such terms. Further, Landlord covenants and agrees not to disclose to any
third parties any other information regarding the occupancy of the Premises by Tenant, including,
but not limited to, the location of Tenant’s laboratory in the Premises, or that Tenant has entered
into any contractual relationship with Landlord, and shall use commercially reasonable efforts to
limit information regarding Tenant’s occupancy, use, and
Page 11 of 24
contractual relationship with Landlord
only to those employees who have a reasonable business need to be aware of such terms. Such
confidentiality is a material consideration to Landlord and Tenant to enter into this Lease, and in
the event of disclosure, Landlord and Tenant shall incur injury and damages to such an extent that
such injury and damages are not capable of a precise computation. Therefore, upon breach or
threatened breach of this Paragraph 16.1 by Landlord or Tenant, the non-breaching party shall be
entitled to seek injunctive or other equitable relief. The terms of this Paragraph 16.1 shall not
be breached should Landlord or Tenant be compelled by subpoena or other court order to disclose the
terms of this Lease; in such event, however, Tenant or Landlord, as applicable, shall give
immediate notice to the other of such subpoena or other possible requirement of disclosure in order
to afford such other party an opportunity to seek an appropriate protective order from the court or
other tribunal having jurisdiction of the Premises to limit the public disclosure further as to the
contents of this Lease.
ARTICLE XVII
LIABILITY OF LANDLORD
LIABILITY OF LANDLORD
17.1 LIABILITY OF LANDLORD. NOTWITHSTANDING ANYTHING IN THIS LEASE TO THE CONTRARY,
NEITHER LANDLORD NOR THE LANDLORD GROUP SHALL HAVE ANY PERSONAL LIABILITY WHATSOEVER UNDER OR WITH
RESPECT TO THIS LEASE, AND TENANT SHALL LOOK SOLELY TO THE ESTATE, RENTS, PROFITS AND PROPERTY OF
LANDLORD ONLY FOR THE COLLECTION OF ANY JUDGMENT OR OTHER JUDICIAL PROCESS ARISING OUT OF ANY
CLAIMS, DEMANDS OR CAUSES OF ACTION IN ANY WAY ARISING OUT OF OR RELATED TO ANY DEFAULT OR BREACH
BY LANDLORD UNDER OR WITH RESPECT TO THIS LEASE, AND NO OTHER ASSETS OR PROPERTY WHATSOEVER OF
LANDLORD OR THE LANDLORD GROUP SHALL BE SUBJECT TO LEVY, EXECUTION OR OTHER PROCEDURES FOR THE
SATISFACTION OF ANY REMEDIES OF TENANT WHICH IN ANY WAY ARISE OUT OF OR ARE RELATED TO ANY DEFAULT
OR BREACH BY LANDLORD UNDER OR WITH RESPECT TO THIS LEASE.
ARTICLE XVIII
EXECUTION AND AUTHORITY
EXECUTION AND AUTHORITY
18.1 EXECUTION AND AUTHORITY. (A) Submission or preparation of this Lease by Landlord
shall not constitute an offer by Landlord or option for the Premises, and this Lease shall
constitute an offer, acceptance or contract only as expressly specified by the terms of this
Subparagraph 18.1(A). In the event that Tenant executes this Lease first, such action shall
constitute an offer to Landlord, which may be accepted by Landlord by executing this Lease, and
once this Lease is so executed by Landlord, such offer may not be revoked by Tenant and this Lease
shall become a binding contract. In the event that Landlord executes this Lease first, such action
shall constitute an offer to Tenant, which may be accepted by Tenant only by delivering to Landlord
a fully executed copy of this Lease, together with a fully executed copy of all guaranty
agreements, if any, of the obligations of Tenant under this Lease, all of which documents must be
received by Landlord within seven (7) days after the Effective Date by Landlord; provided that in
the event that any party other than Landlord makes any material or minor alteration of any nature
whatsoever to any of said documents, then such action shall merely constitute a counteroffer, which
Landlord may, at Landlord’s election, accept or reject. Notwithstanding that the Rent Commencement
Date may occur and the Lease Term may commence after the Effective Date, upon delivery and
acceptance of this Lease in accordance with the terms of this Lease, this Lease shall be fully
effective, and in full force and effect and valid and binding against the parties in accordance
with, but on and subject to, the terms and conditions of this Lease.
(B) As a material inducement to both parties to enter into this Lease, Tenant (and,
individually each party executing this Lease on behalf of Tenant) and Landlord (and, individually
each party executing this Lease on behalf of Landlord) intending that the other party hereto rely
thereon, represents and warrants each to the other that:
(i) They (or the party executing on their behalf) are fully and properly authorized to
execute, enter into, and deliver this Lease;
(ii) This Lease constitutes a valid and binding obligation, enforceable against the parties
hereto in accordance with the terms of this Lease;
(iii) Landlord and Tenant are duly organized, validly existing and in good standing under the
Laws of the state of their organization and have full power and authority to enter into this Lease,
to perform the obligations of such parties under this Lease in accordance with the terms of this
Lease, and to transact business in the state in which the Premises are located; and
(iv) The execution of this Lease by the individual or individuals executing this Lease on
behalf of Landlord or Tenant, and the performance by Landlord or Tenant of their respective
obligations under this Lease, have been duly authorized and approved by all necessary corporate or
partnership action, as the case may be, and the execution, delivery and performance of this Lease
by such parties is not in conflict with such parties’ bylaws or articles of incorporation (if a
corporation), agreement of partnership (if a partnership), and other charters, agreements, rules or
regulations governing the parties’ respective businesses as any of the foregoing may have been
supplemented or amended in any manner.
(C) In the event that the Premises are located in Georgia, this Lease shall be deemed to have
been executed in Georgia, and the interpretation, construction and performance of this Lease shall
be governed by the Laws of the State of Georgia. In the event that the Premises are not located in
Georgia, then the interpretation, construction and performance of this Lease shall be governed by
the Laws of the state in which the Premises are located.
(D) This Lease shall be executed in duplicate, each counterpart of which shall be deemed an
original and any of which shall be deemed to be complete of itself and may be introduced into
evidence or used for any purpose without the production of the other counterpart or counterparts.
(SIGNATURES COMMENCE ON THE FOLLOWING PAGE)
Page 12 of 24
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease in duplicate,
individually or through their authorized officers, agents, or attorneys-in-fact, as the case may
be, causing their respective seals to be affixed hereto.
| LANDLORD: | ||||||
| Executed by Landlord on October 12, 2011. | ▇▇▇▇▇ ENTERPRISES, INC., a Georgia corporation | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (L.S.)
|
|||||
| Its: | Executive Vice President | |||||
| (CORPORATE SEAL) | ||||||
| TENANT: | ||||||
| Executed by Tenant on October 12, 2011. | PREMIER EXHIBITIONS, INC., a Florida corporation | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (L.S.)
|
|||||
| Its: | General Counsel | |||||
| (CORPORATE SEAL) | ||||||
Page 13 of 24
EXHIBIT “A”
SPECIAL STIPULATIONS
| 1. | EARLY ACCESS. |
Tenant shall be entitled to access to the Premises prior to the Commencement Date for the purpose
of installing fixtures and for storage (pursuant to that certain letter agreement dated October 4,
2011, which such agreement shall be deemed superseded by this Lease upon the Effective Date) or for
any other purpose permitted by Landlord. Such permission for early access to the Premises shall
not be unreasonably withheld, conditioned, or delayed. Such early access shall be subject to all
of the terms and provisions of this Lease as though the Commencement Date had occurred, except for
the payment of Aggregate Rent, which shall commence on the Rent Commencement Date. Notwithstanding
the preceding sentence, it is specifically agreed and understood that Tenant shall pay all charges
for Utilities serving the Premises from the date upon which Tenant is notified that the Premises
are available for Tenant’s access until the Commencement Date. Landlord shall have the right to
impose such additional reasonable conditions on Tenant’s early entry as Landlord, in Landlord’s
reasonable discretion, deems appropriate.
| 2. | EXCLUSIONS FROM COMMON AREA MAINTENANCE (“CAM”) COSTS. |
| 1. | Costs of items considered capital repairs, replacements, improvements and
equipment under generally accepted accounting principles; |
| 2. | Salaries and employment expenses of personnel above the level of on-site
building manager and any portion of the general overhead of operating the property
manager’s central off-site office; |
||
| 3. | Depreciation, amortization or other similar non-cash accounting charges; |
| 4. | Cost to comply with governmental rules, regulations, codes, statutes.
including, without limitation, environmental remediation or ADA compliance and the like
or correcting defects in the design or construction of the Property or any Work
performed by Landlord; |
| 5. | Costs, interests and penalties incurred by reason of the violation by Landlord
of any Laws or contractual obligations; and |
||
| 6. | Any management or administrative fees. |
| 3. | COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT OF 1990 (the “ADA”). |
Tenant shall not be obligated hereunder to make any structural alterations or modifications to the
Premises which are required of the Premises in general and (a) are not directed specifically to the
type of business being conducted by Tenant at the Premises, and (b) would not be applicable to
another tenant occupying the Premises for general industrial, office, or warehouse uses. To the
extent Tenant is not obligated to make said structural alterations or modifications, Landlord shall
promptly make them at Landlord’s sole cost and expense. Landlord shall be solely responsible for
compliance with the ADA in the Common Area. However, nothing contained herein shall negate
Landlord’s or Tenant’s right to challenge any such ADA compliance requirement in administrative
and/or judicial proceedings.
| 4. | LANDLORD WORK. |
Upon, or shortly after, the Effective Date, Landlord shall contract with Dakota Contractors, LLC
(the “General Contractor”), to perform the Landlord Work, as shown and described on Exhibit
“C” attached hereto, and Landlord shall be responsible to pay the cost of the Landlord Work up
to a maximum amount of Seventy-two Thousand Eight Hundred Four and No/100 ($72,804.00) Dollars (the
“Construction Cap”).
Landlord shall be responsible to pay the applicable parties the full amount of the cost of the
Landlord Work, provided, however, it is specifically agreed between Landlord and Tenant that, if
the cost of the Landlord Work is greater than the Construction Cap, Landlord shall invoice Tenant
for the difference and Tenant shall pay Landlord same within thirty (30) days after the later of
the (a) receipt of such invoice, or (b) issuance of a Certificate of Occupancy or equivalent
thereto (unless denied or delayed due to Tenant’s willful misconduct or other Tenant-caused delays
(not including change orders), in which event the date of (b) shall be deemed to be the date on
which the Certificate of Occupancy would have otherwise been issued.
| 5. | HAZARDOUS SUBSTANCE. |
| a. | To the best of Landlord’s actual knowledge and belief, as of the Effective
Date, the Premises is free of any Hazardous Substance. Landlord’s representations to
Tenant under this Special Stipulation 5 shall survive the cancellation or termination
of this Lease. Landlord shall indemnify, defend, and hold Tenant harmless against any
claims arising from any previous actions with regard to any breach of Laws not caused
directly by Tenant. In the event that a Hazardous Substance which is required by Laws
to be removed or remediated and which was introduced by a party other than Tenant,
Tenant’s agents, employees, contractors or invitees, is discovered on the Premises
during the Lease Term or any extension thereof, Landlord shall: (a) pursue the party
or parties responsible for such contamination in an effort to compel them to remediate
the contamination in accordance with Laws, or (b) in the event that Landlord caused
such contamination, Landlord shall proceed to remove or remediate it as and to the
extent required by Laws. In no event shall Tenant be liable for any release of a
Hazardous Substance or any violation of Laws which Tenant did not cause, contribute to
or create. If, in Tenant’s commercially reasonable judgment, such removal or
remediation renders the Premises unsuitable for the Use of Premises, this Lease shall
be and remain unaffected by such removal or remediation, except that the Aggregate Rent
shall be abated in an amount apportioned according to the area of the Premises affected
by the removal or remediation. |
| b. | Landlord hereby agrees to indemnify and hold harmless Tenant, Tenant’s
directors, officers, employees, agents and any assignees, subtenants or successors to
Tenant’s interest in the Premises, their directors, officers, employees and agents,
from and against any and all expenses, losses, claims, damages, penalties, and
liability (including all out-of-pocket litigation costs and the reasonable fees and
expenses of counsel) including, without limitation: (i) consequential damages, directly
or indirectly arising out of the presence, use, generation, storage, release,
threatened release, or disposal of any Hazardous Substance by Landlord, Landlord’s
agents or contractors, prior or current tenants, owners or operators of the Property,
including the Premises or the land underlying the Property; and (ii) the cost of any
required or necessary repair, cleanup, remediation, or detoxification and the
preparation of any closure or other required plans, whether such action is required or
necessary prior to or following the Commencement Date, to the full extent that such
action is attributable, directly or indirectly, to the presence, use, generation,
storage, release, threatened release, or disposal of any Hazardous Substance by any
person other than Tenant, Tenant’s agents or employees on, under or about the land
underlying the Property. |
Page 14 of 24
| 6. | LANDLORD MAINTENANCE AND REPAIR STANDARD. |
Landlord agrees to perform Landlord’s maintenance and repair obligations as provided in this Lease
in a professional manner consistent with generally recognized industry standards.
| 7. | CAP ON CAM COSTS. |
Tenant’s liability for Common Area Maintenance (“CAM”)costs for any Calendar Year, commencing with
the Second Calendar Year, shall not exceed 110% of the CAM costs owed by Tenant for the previous
Calendar Year (“CAM Cap”). In no event shall the CAM costs reimbursed to Landlord by Tenant with
respect to any Calendar Year during the initial Lease Term or any extension thereof exceed the CAM
Cap for such Calendar Year, excluding increases attributable to Utilities, Insurance, and snow
removal costs.
Page 15 of 24
EXHIBIT “B”
SITE PLAN OF THE PREMISES
*** OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED
Page 16 of 24
EXHIBIT “C”
LANDLORD WORK
(Page 1 of 6)
On or before the Commencement Date, Landlord shall, at Landlord’s sole cost and expense, perform
improvements to the Premises in accordance with the below.
*** OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED
Page 17 of 24
EXHIBIT “C”
LANDLORD WORK
(Page 2 of 6)
*** OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED
Page 18 of 24
EXHIBIT “C”
LANDLORD WORK
(Page 3 of 6)
*** OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED
Page 19 of 24
EXHIBIT “C”
LANDLORD WORK
(Page 4 of 6)
Electric |
18,922.00 |
| 1. | Provide and install electrical for the following HVAC units: |
| • | (1) 10 ton and (1) 5 ton RTU’s in warehouse |
||
| • | (1) 3 ton RTU in small office area with no ceiling |
||
| • | (1) 10 ton in large area with lay-in ceiling |
| 2. | Provide and install electrical for the following: |
| • | (1) dust collector in warehouse |
||
| • | (13) duplex receptacles in walls |
||
| • | (2) 220 volt, 20 amp circuits |
||
| • | (1) quad duplex on column receptacle |
||
| • | (4) exit/emergency lights |
||
| • | (2) emergency lights |
||
| • | (39) T-8, 2x4 lay-ins |
||
| • | (6) 8ft. strip lights |
||
| • | (4) single pole switches |
||
| • | (3) 20 amp, 120 volt home runs |
| 3. | Relocate (1) duplex receptacle and (1) GFI receptacle for counter in warehouse |
||
| 4. | Demo electrical for existing counter top |
||
| 5. | Relocate electrical
including (1) switch, (3) receptacles and (1) voice/data for new door location |
||
| 6. | Repair (2) existing 2x4 lay-ins |
||
| 7. | Repair existing lighting
contactor and electrical homeruns for (2) rows of T-5
warehouse lighting |
Plumbing |
1,560.00 |
| 1. | Concrete cutting and removal |
||
| 2. | Install the underground waste piping |
||
| 3. | Install the in-wall rough-in of domestic water piping and sanitary waste piping for (1) kitchen sink and install kitchen sink |
Flooring |
7,468.00 |
| 1. | Building Standard Carpet – 333 SY |
||
| 2. | Standard type 4” Cove
Base – 2,520 LF, included in VCT rooms and both sealed
floor areas |
||
| 3. | Floor prep “allowance only” |
Dock Doors |
4,250.00 |
| 1. | (1) ▇▇▇▇▇ ▇▇▇▇▇▇ Steel Sectional Door – Model C-2400 |
| • | 8’ wide x 10’ high |
||
| • | Manual push up |
||
| • | Wood on outside of wall for track and door springs is by others |
||
| • | Semi vertical lift |
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Tel ▇▇▇.▇▇▇.▇▇▇▇ Fax ▇▇▇.▇▇▇.▇▇▇▇
Page 20 of 24
EXHIBIT “C”
LANDLORD WORK
(Page
5 of 6)
| • | Engineered for economy and long life |
||
| • | Nominal 24-gauge steel construction provides rugged security |
||
| • | Single layer steel sections
are constructed from pre-painted,
galvanized
steel skins and galvanized ▇▇▇▇▇▇ |
||
| • | 2” track is standard |
||
| • | PVC Head and Jamb seal |
| 2. | (1) ▇▇▇▇▇ ▇▇▇▇▇▇ —
Model C-2400 Steel Sectional Door |
| • | 8’ wide x 9’ high |
||
| • | Manual push up |
| • | Wood on outside of wall for
track and door springs is by others |
||
| • | Semi vertical lift |
||
| • | Engineered for economy and long life |
||
| • | Nominal 24-gauge steel construction provides rugged security |
||
| • | Single layer steel sections are constructed from pre-painted,
galvanized
steel skins and galvanized ▇▇▇▇▇▇ |
||
| • | 2” track is standard |
||
| • | PVC Head and Jamb seal |
| 3. | (2) Commercial Grade PVC Strip Curtain |
| • | (1) 8’ wide x 10’ high |
||
| • | (1) 8’ wide x 9’ high |
||
| • | Mounts on face of wall above lintel |
||
| • | Wood in walls is by others |
||
| • | Best Clarity in the industry = Safest Strip doors |
||
| • | Can be installed in only minutes |
||
| • | Can save hundreds of dollars in energy costs every year |
Southeast Sealing |
1,850.00 |
| 1. | Machine Scrub with
detergent, machine rinse thoroughly and apply (2) coats of KNS
25 concrete seal to two room measuring approximately 9,500 square feet |
Doors/frames |
2,812.00 |
| 1. | 2 — Frame DW16 4 8070 8 1/4 DBL |
||
| 2. | 2 — AST. INACT 70 R ASA. FB |
||
| 3. | 2 — 4070 LS18 161 PRIMED HMD |
||
| 4. | 2 — 4070 LS18 F 86ED PRIMED HMD |
||
| 5. | 16 — HINGE BALL BEAR
4.5X4.5 US26D |
||
| 6. | 4 — 12” FLUSH BOLT |
||
| 7. | 3 — LOCK 3553 / ENTRANCE US26D |
||
| 8. | 3 — CLOSER 5200 MLT ADJ 1-4 ALM |
||
| 9. | 4 — NEOSPRENE SWEEP / 20ONA X 48” |
||
| 10. | 2 — WS / 190V X
1/72” X 2/96” |
||
| 11. | Installation of (2) door @ $150.00 per door |
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Tel ▇▇▇.▇▇▇.▇▇▇▇ Fax ▇▇▇.▇▇▇.▇▇▇▇
Page 21 of 24
EXHIBIT “C”
LANDLORD WORK
(Page 6 of 6)
Roofing |
2,975.00 |
| 1. | Flash (2) 6’x 8’ curbs complete |
||
| 2. | Flash (1) 4’x 6’ curb complete |
||
| 3. | Furnish and install (3) pitch pans |
Supervision |
2,800.00 | |||
Contractors Fee |
7,890.00 | |||
Total- |
139,392.00 | |||
Notes:
| 1. | Permit by others |
If you have any questions please call me at ▇▇▇-▇▇▇-▇▇▇▇
| Dakota Contractors | ||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Vice President |
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Tel ▇▇▇.▇▇▇.▇▇▇▇ Fax ▇▇▇.▇▇▇.▇▇▇▇
Page 22 of 24
EXHIBIT “D”
RULES AND REGULATIONS
NOTWITHSTANDING ANYTHING CONTAINED in this Lease to the contrary, neither Tenant nor Tenant
Invitees shall knowingly use any portion of the Premises in any of the following manners, nor
knowingly for any of the following purposes or uses:
| • | Any illegal usage. |
|
| • | Any manner which violates any Laws or certificate of occupancy. |
|
| • | Any use which creates fire, explosive or environmental hazards. |
|
| • | Any manner which generates, stores, treats, disposes of, installs or otherwise causes or
permits any Hazardous Substance to be brought upon or kept or used in or on the Premises. |
|
| • | Any manner which creates or permits a nuisance or trespass. |
|
| • | Any manner which causes the overburdening of any the structural system of the roof.
Tenant is to restrict placement of equipment on the roof to 300 lbs. without consultation
with a registered structural engineer. |
|
| • | Any manner which exceeds the floor load for which such floor was designed or is permitted
by Laws to carry. The floor load is 6,000 lbs. per square foot. |
|
| • | Any hazardous manner or waste to the Premises. |
|
| • | Any manner which increases the rate of any Insurance premiums payable by Landlord;
provided, however, that Tenant shall not be deemed to be in Tenant Default of this
requirement for so long as Tenant shall reimburse Landlord, upon receipt of invoice
therefor, for the amount of any such increased rates or costs. |
|
| • | Any manner which produces, reproduces or transmits any sounds or vibrations which may be
heard, seen or experienced, or are audible or detectable, outside the Premises. |
|
| • | Any manner which utilizes any device or advertising medium which may be heard, seen or
experienced outside the Premises, including, without limitation, flashing lights,
searchlights, loudspeakers, phonographs, radio broadcasts or public address systems. |
|
| • | Any manner which produces, emanates or transmits odors, fumes, dust or vapors which are
detectable outside the Premises, or which are strong, unusual, offensive or otherwise
objectionable. |
|
| • | Any burning of any garbage, rubbish or other materials or rubbish upon or in the
Premises. |
|
| • | Any dumping, disposing, incineration or reduction of garbage exclusive of dumpsters
located at the rear of the Premises, or in any location designated by Landlord. |
|
| • | Any manner which, in the reasonable judgment of Landlord, is inconsistent with the use
and operation of the Premises. |
Page 23 of 24
EXHIBIT “E”
TENANT IMPROVEMENT GUIDELINES
| A. | Prior to the construction of any Work of any nature in or on the Premises, Tenant
must first submit to Landlord: |
| 1. | A copy of the agreement between Tenant and Tenant’s contractor; in the event that
Tenant is receiving an improvement allowance from Landlord, said contractor must first be
approved by Landlord in writing. |
||
| 2. | A floorplan depicting the layout of the Premises, with each room identified for its
intended use. |
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| 3. | A floorplan depicting the electrical design. |
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| 4. | A description of changes, if any, to primary Utilities, i.e., water, electric and
gas. |
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| 5. | A description of modifications, if any, to the building located on the Premises’
structure. |
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| 6. | A description of equipment, if any, which may be installed on the roof or which may
impact floor loading capacities. |
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| 7. | A building permit for the proposed improvements. |
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| 8. | Evidence by the primary contractor and sub-contractor, if any, of ▇▇▇▇▇▇▇’▇
compensation insurance in the amount of Five Hundred Thousand and No/100 ($500,000.00)
Dollars, general liability insurance in the amount of Two Million and No/100
($2,000,000.00) Dollars per occurrence and general aggregate insurance in the amount of
Five Million and No/100 ($5,000,000.00) Dollars, provided, however, Landlord shall have
the right to require Tenant to increase such amounts as Landlord may reasonably deem
necessary. |
| B. | During construction, Tenant shall ensure that: |
| 1. | All Work must conform to applicable Laws, and must be performed in a good workmanlike
manner utilizing first-class materials. |
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| 2. | No materials shall be stored outside the Premises. |
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| 3. | Construction debris shall be hauled off daily and shall not be placed in the existing
dumpster. If Tenant elects to use a construction dumpster, Tenant must first coordinate
the placement thereof with Landlord and protect adjacent paved surfaces. |
||
| 4. | No volatile materials may be stored on the Premises. Solid, liquid or semi-liquid
wastes such as paint, concrete or drywall joint compound may not be placed in sanitary
drains, storm drains or landscaped areas. Disposal of such substances must be arranged
off site. |
||
| 5. | All roof penetrations must be approved and performed by Landlord at Tenant’s sole
expense. |
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| 6. | Any construction activity which might inconvenience any neighboring tenants shall be
done at times when no one will be affected by noise, floor penetrations and similar
matters. |
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| 7. | All construction personnel must conduct themselves in a manner not offensive to
others. |
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| 8. | All construction personnel must avoid parking their vehicles in areas near doors,
except for short periods of time as necessary for deliveries. Construction parking must
be confined to an area designated by Landlord. |
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| 9. | All construction personnel shall be advised in advance to cooperate with Landlord’s
personnel who may visit the site or otherwise contact them without notice. |
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| 10. | All penetrations of fire-rated separations must be accomplished so that original or
improved fire-rating is maintained. |
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| 11. | All existing finishes to the building located on the Premises shall be protected.
Any changes to finishes shall be approved by Landlord in writing prior to construction
and shall be repaired to original condition. |
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| 12. | In the event that the Premises are left in a state of disrepair, such repairs shall
constitute Tenant Repairs, and if Tenant does not perform such Tenant Repairs in a timely
fashion, Landlord is entitled, at Landlord’s sole option, to effectuate such Tenant
Repairs and charge the cost of such Tenant Repairs to Tenant. |
||
| 13. | Any access to locked areas of the building located on the Premises, such as
electrical rooms and roof hatches, shall be coordinated in advance with Landlord. |
||
| 14. | Any reusable building fixtures must be protected and returned to Landlord. |
| C. | After construction, Tenant must: |
| 1. | Within five (5) business days, notify Landlord that Tenant’s construction is
substantially complete or that Tenant has taken beneficial occupancy of the Premises. |
Page 24 of 24