LEASE Between OLP ____________________ LLC, a Delaware limited liability company Landlord and OFFICE DEPOT, INC., a Delaware corporation Tenant located at
EXHIBIT
10.1
LEASE
Between
OLP
____________________ LLC, a Delaware limited liability company
Landlord
and
OFFICE
DEPOT, INC., a Delaware corporation
Tenant
located
at
September
26, 2008
TABLE
OF CONTENTS
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Page
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Article
1 FUNDAMENTAL LEASE PROVISIONS; EXHIBITS; DEFINITIONS
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1
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Section
1.1
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Fundamental
Lease Provisions
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1
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Section
1.2
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Exhibits
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3
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Section
1.3
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Definitions
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3
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Article
2 LEASE OF PROPERTY; TERM
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4
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Section
2.1
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Lease
of Property
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4
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Section
2.2
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Term
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4
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Section
2.3
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Extension
Options
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5
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Section
2.4
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Net
Lease
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5
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Section
2.5
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Property
Name
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5
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Section
2.6
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Landlord’s
Work
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5
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Section
2.7
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Tenant's
Work.
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5
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Article
3 RENT
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6
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Section
3.1
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Fixed
Rent
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6
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Section
3.2
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Real
Estate Taxes.
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6
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Article
4 MAINTENANCE
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7
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Section
4.1
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Maintenance
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7
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Article
5 UTILITIES AND SERVICES
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7
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Section
5.1
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Utilities
in General
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7
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Section
5.2
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Additional
Utilities
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7
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Article
6 LANDLORD'S AFFIRMATIVE AND NEGATIVE COVENANTS
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7
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Section
6.1
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Affirmative
Covenants
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7
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Section
6.2
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Negative
Covenants
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8
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Article
7 LANDLORD'S REPRESENTATIONS, WARRANTIES AND ADDITIONAL
COVENANTS
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9
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Section
7.1
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Landlord's
Representations, Warranties and Additional Covenants
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9
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Article
8 TENANT'S REPRESENTATIONS, WARRANTIES AND COVENANTS
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9
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Section
8.1
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Tenant’s
Representations and Warranties
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9
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Section
8.2
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Covenants
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10
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Article
9 ASSIGNMENT AND SUBLETTING
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12
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Section
9.1
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Rights
and Conditions
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12
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Section
9.2
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Non-Disturbance
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13
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Article
10 DAMAGE AND DESTRUCTION; CONDEMNATION
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14
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Section
10.1
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Fire
or Other Casualty.
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14
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Section
10.2
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Eminent
Domain.
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14
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Article
11 DEFAULT AND REMEDIES
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15
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Section
11.1
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Tenant's
Default
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15
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Section
11.2
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Cross-Default
by Tenant
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16
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Section
11.3
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Holdover
by Tenant
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17
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Section
11.4
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Effect
of Waivers of Default by Landlord or Tenant
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17
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Section
11.5
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Landlord's
Default
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17
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Section
11.6
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Breach
of a Covenant
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17
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Section
11.7
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Interest
on Late Payments
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18
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Article
12 MISCELLANEOUS PROVISIONS
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18
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Section
12.1
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Notices
from One Party to the Other
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18
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Section
12.2
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Brokerage
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18
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Section
12.3
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Brokerage
Indemnities
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18
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Section
12.4
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Relationship
of the Parties
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18
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Section
12.5
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Subordination,
Non-Disturbance and Attornment.
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19
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Section
12.6
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Estoppel
Certificates
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19
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Section
12.7
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Applicable
Law and Construction
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19
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Section
12.8
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Binding
Effect of Lease
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20
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Section
12.9
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Memorandum
of Lease
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20
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Section
12.10
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Effect
of Unavoidable Delays.
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20
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Section
12.11
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Waiver
of Claims and Subrogation
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20
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Section
12.12
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No
Construction Against Preparer
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20
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Section
12.13
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Number
and Gender
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20
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Section
12.14
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Waiver
of Landlord's Lien
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21
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Section
12.15
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No
Express or Implied Covenant of Continuous Operation
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21
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Section
12.16
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Exterior
and Interior Signage.
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21
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Section
12.17
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Covenants
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21
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Section
12.18
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Entire
Agreement
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21
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Section
12.19
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Legal
Expenses
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21
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Section
12.20
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Counterparts
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22
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Section
12.21
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Investment
Tax Credits
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22
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Section
12.22
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Financial
Statements
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22
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Section
12.23
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Confidentiality
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22
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Section
12.24
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Waiver
of Trial by Jury
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22
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Section
12.25
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Radon
Disclosure
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22
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Article
13 LEASEHOLD MORTGAGES
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23
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Section
13.1
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Leasehold
Mortgages.
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23
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Section
13.2
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Event
of Default.
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23
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Section
13.3
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Exercise
of Remedies. .
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23
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Section
13.4
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Termination
of Lease..
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24
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Section
13.5
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Limited
Liability.
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24
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E
X H I B I T S
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EXHIBIT
A
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PROPERTY
LEGAL DESCRIPTION
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EXHIBIT
B
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SITE
PLAN
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EXHIBIT
C
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[Reserved]
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EXHIBIT
D
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[Reserved]
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EXHIBIT
E
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[Reserved]
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EXHIBIT
F
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[Reserved]
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EXHIBIT
G
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[Reserved]
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EXHIBIT
H
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PERMITTED
EXCEPTIONS
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EXHIBIT
I
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SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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EXHIBIT
J
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MEMORANDUM
OF LEASE
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EXHIBIT
K
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RECIPROCAL
EASEMENT AGREEMENT
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EXHIBIT
L
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RELATED
LEASES
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L
E A S E
ARTICLE
1
FUNDAMENTAL
LEASE PROVISIONS; EXHIBITS; DEFINITIONS
Section
1.1 Fundamental
Lease Provisions.
These are the provisions of this Lease, except as they may be modified
hereafter.
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1.1.1
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DATE
OF LEASE.
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September
26, 2008, being the date that both this Lease and the Memorandum
of Lease
attached hereto as EXHIBIT
J have
been executed by both parties and returned to the first to execute,
sometimes referred to herein as the “Effective Date”.
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1.1.2
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LANDLORD:
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OLP
__________________ LLC, a Delaware limited liability
company
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1.1.3
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ADDRESS
OF LANDLORD FOR THE PAYMENT OF RENT HEREUNDER:
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▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Alysa Block
Tax
I.D. # ▇▇-▇▇▇▇▇▇▇
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1.1.4
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TENANT:
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OFFICE
DEPOT, INC.,
a
Delaware corporation
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1.1.5
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ADDRESS
OF TENANT:
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▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(561)
438-4000
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1.1.6
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TENANT'S
INITIAL TRADE NAME:
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OFFICE
DEPOT
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1.1.7
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LEASE
TERM:
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Subject
to Section
2.2,
the Expiration Date of the “Lease Term” (as defined in Section
2.2
below) shall be the date which is one hundred twenty (120) full
calendar
months from and after the Lease Term Commencement Date (as defined
in
Section
2.2
below) (the “Initial Term”), unless extended (the “Extended Lease
Term(s)”) pursuant to the provisions of Section
2.3
hereof, or unless sooner terminated in accordance with the terms
and
provisions of this Lease
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1.1.8
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FIXED
RENT:
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Annual
Total
Fixed
Rent
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Years
of Lease Term
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||
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1-5
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$__________
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6-10
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$__________
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1
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11-15
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$__________
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16-20
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$__________
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21-25
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$__________
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26-30
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$__________
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Annual
Total Fixed Rent will be adjusted prorata for any partial year
during the
term.
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1.1.9
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NUMBER
OF SUCCESSIVE FIVE (5) YEAR RENEWAL OPTIONS:
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Four
(4)
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1.1.10
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PROPERTY
LOCATION:
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1.1.11
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NAME
OF CENTER:
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1.1.12
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BROKER(S):
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None.
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1.1.13 PERMITTED
USES; NATURE OF TENANT'S BUSINESS. The Property (as later defined) may be
used
for the operation of an office and consumer supply, furniture, equipment
and
products and service store as is now or in the future being operated by Tenant
for any one (1) or more of the following sales and services: office and consumer
supplies, furniture, machines, storage supplies and products, and other related
equipment used in offices, home offices and homes; school supplies and products;
computer hardware, software and related equipment and supplies; educational
and
entertainment supplies, software and goods, including, but not limited to,
books, newspapers, magazines, periodicals, records, audio and video tapes,
DVD's, games, digital technology, Internet products and services; consumer
and
business electronics; cellular telephones, and telecommunications equipment
and
devices; art, architectural and engineering supplies; photocopy, facsimile,
printing, shipping and related services; business services (including, without
limitation, tax and financial services); gifts, novelties and related items;
any
technological evolution or replacement of any of the foregoing; the sale
of
goods and the provision of such other services customarily sold or provided
now
or in the future in office and consumer supply and product and service stores
or
in other stores of Tenant, and for any other lawful retail purpose (the
“Permitted Use”).
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1.1.14
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MINIMUM
GENERAL LIABILITY INSURANCE COVERAGE:
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Two
Million Dollars ($2,000,000.00) Combined Single Limit Coverage,
or such
additional amount as Landlord’s mortgagees may require.
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1.1.15
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TENANT
ALLOWANCE:
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None.
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1.1.16
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CRITICAL
DATES:
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Estimated
Delivery Date:
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September
26, 2008
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Outside
Delivery Date:
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October
1, 2008
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2
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1.1.17
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ARTICLE
12 INFORMATION:
|
|
Notices
to Landlord shall be sent to:
▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Alysa Block
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
|
|
|
With
a copy to:
▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Section
1.2 Exhibits.
The
exhibits attached to this Lease are incorporated into this Lease by this
reference and are to be construed as an integral part of this
Lease.
Section
1.3 Definitions.
Certain
terms used in this Lease with an initial capital letter are defined within
the
text of those Sections in which the same are mentioned. For convenience,
certain
other terms are defined in this Section
1.3
as
follows:
1.3.1 The
term
“Additional Charges” shall mean all payments required to be made hereunder by
Tenant, other than “Fixed Rent.”
1.3.2 The
term
“Building Permits” shall mean all necessary building permits and other
governmental approvals for the performance of “Tenant's Work” (including without
limitation the installation of its exterior building and pylon signage as
set
forth in Section
12.15
hereof).
1.3.3 The
term
“Delivery Date” shall mean the date that exclusive actual possession of the
entire Property is delivered to Tenant.
1.3.4 The
term
the “Floor Area” shall mean the number of square feet of ground floor space in
all areas constructed on the Property within the exterior faces of exterior
walls, store fronts, corridors and service areas (except party and interior
walls, as to which the center thereof shall be used), including, by way of
illustration and not by limitation, sales areas, warehousing or storage areas,
office or clerical areas and employee facilities. Floor Area shall exclude
any
truck ▇▇▇▇▇ and loading dock areas, unless fully enclosed within the exterior
walls of the building, any non-sales mezzanine space and any basement
space.
1.3.5 The
term
“Hazardous Substances” shall mean any hazardous or toxic materials, substances
or wastes, such as (a) substances defined as “hazardous substances,” “hazardous
materials,” or “toxic substances” in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (“CERCLA”), the Resource Conservation and
Recovery Act of 1976 (“RCRA”), and/or the Hazardous Materials Transportation Act
(49 USC Section 1801, et seq.), as any of such acts are amended from time
to
time; (b) any materials, substances or wastes which are toxic, ignitable,
corrosive or reactive and which are regulated by any local governmental
authority, any agency of any State in which the Property is located or any
agency of the United States of America; (c) asbestos, petroleum and petroleum
based products, urea formaldehyde foam insulation, polychlorinated biphenyls
(PCBs), and freon and other chlorofluorocarbons; and (d) those substances
defined as any of the foregoing in the regulations adopted and publications
promulgated pursuant to each of the aforesaid laws.
1.3.6 The
term
“Institutional Mortgagee” shall mean any commercial bank, federal or state
savings and loan association, life insurance company, pension fund, real
estate
investment trust, nationally recognized credit company or investment bank,
any
affiliate, subsidiary, successor or assignee of any of the foregoing, or
any
other legal entity (not affiliated with Landlord) holding a mortgage on the
Property.
3
1.3.7 The
term
“Interest Rate” shall mean that rate of interest which is the lesser of (a) the
maximum interest rate permitted under applicable usury laws; or (b) the “prime
rate” as published from time to time in the Money Section of The Wall Street
Journal or, if The Wall Street Journal should at any time cease to be published
or should The Wall Street Journal cease to publish a “prime rate,” the term
“prime rate” shall mean the reference rate as charged from time to time by Bank
of America.
1.3.8 The
term
“Permitted Exceptions” shall mean all those certain title exceptions, which in
Tenant's reasonable judgment will not impair Tenant's rights and entitlements
under this Lease or its use and enjoyment of the Property. The Permitted
Exceptions are listed on EXHIBIT
H
attached
hereto.
1.3.9 The
term
“Premises” shall mean, in aggregate, all vertical improvements to the Property
including without limitation the building containing Tenant’s retail
store.
1.3.10 The
“Property” shall mean the real property legally described on EXHIBIT
A
hereto,
together with the improvements now or hereafter constructed
thereon.
1.3.11 The
term
“Tenant’s Unamortized Improvements” shall mean the unamortized portion (as of
the date of such termination) of the total sums expended by Tenant as set
forth
in Tenant's books and records in the performance of Tenant's Work and any
subsequent leasehold improvements, with amortization to be on a straight-line
basis over the useful life of such improvements, commencing upon the date
of
each applicable expenditure. The total sums expended by Tenant in the
performance of Tenant's Work and any subsequent leasehold improvements shall
be
reflected in a written itemization provided by Tenant.
1.3.12 The
term
“REA” as used herein shall mean that certain __________________ dated __________
by and between ________________ and ____________________, filed ____________,
recorded under County Clerk's File No. _____________ County, ______________.
The
Property is subject to the REA, attached hereto as EXHIBIT
K.
Landlord hereby grants and warrants to Tenant, its successors and assigns,
for
the Lease Term, the non-exclusive right and easement appurtenant to and for
the
benefit of the Property and any occupant thereof and its customers, employees,
and invitees, to use, for purposes of access, ingress and egress, and parking
all those certain access, ingress and egress, and parking easement areas
granted
to or established under the REA.
ARTICLE
2
LEASE
OF PROPERTY; TERM
Section
2.1 Lease
of Property.
Landlord is the fee simple owner of the Property.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
subject
to and with the benefit of the terms, covenants, conditions and provisions
of
this Lease, the Property, together with all appurtenant rights and
easements.
Section
2.2 Term.
The
term of this Lease (the “Lease Term”) shall begin (the “Lease Term Commencement
Date”) on September 26, 2008. The Lease Term shall end on the Expiration Date
set forth in Section 1.1.7
hereof,
unless extended or sooner terminated, as hereinafter provided. Provided no
Event
of Default has occurred and is continuing at the time of exercise, at the
option
of Tenant exercised by Tenant delivering written notice to Landlord at
least
nine (9)
months prior to what otherwise would be the last day of the Lease Term, the
Lease Term shall be extended to and shall include the next February
28th
if the
last day of the Lease Term would otherwise occur between the dates of August
1
and February 27. In the event Tenant elects to extend the Lease Term to February
28 as permitted by this Section, it shall be deemed to have waived any
additional extension options, if any, that Tenant may have at that
time.
4
Section
2.3 Extension
Options.
Provided
no Event of Default has occurred and is continuing at the time of exercise,
Tenant shall have the number of successive five (5) year options of extension
as
set forth in Section 1.1.9
(each of
which periods is referred to herein as an “Extended Term”), provided written
notice of the election of such options shall be sent to Landlord not less
than
nine (9) months prior to the expiration of the then expiring term (Initial
Term
or Extended Term, as applicable). Notwithstanding the foregoing, if Tenant
does
not exercise any option of extension in the time period or in the manner
provided in this Section, such option of extension shall nevertheless continue
in full force and effect, shall not lapse and may be exercised by Tenant
until
fifteen (15) days after Tenant has received written notice from Landlord
that
such deadline has passed and that Landlord has not received such notice.
If said
options are duly exercised, the Lease Term shall be automatically extended
for
the period of the next ensuing option, without the requirement of any further
instrument, upon all of the same terms, provisions and conditions set forth
in
this Lease, except that Fixed Rent during the option periods shall be as
set
forth in Section 1.1.8.
Section
2.4 Net
Lease.
The
Fixed Rent reserved herein shall be net to the Landlord so that this Lease
shall
yield net to the Landlord the Fixed Rent specified, and all costs, expense
and
obligations pertaining to the Property (including, without limitation, any
rent
tax or tax on rental income), shall, except as provided otherwise in this
Lease,
be the obligation of and paid by the Tenant
Section
2.5 Property
Name.
The
name of the Property shall be as set forth in Section 1.1.11.
Landlord shall not have the right to change the name or address of the Property
without the prior written consent of Tenant, which consent shall not be
unreasonably withheld, conditioned or delayed.
Section
2.6 Landlord’s
Work.
Tenant
acknowledges and agrees that the Premises are existing and that it shall
lease
the Premises in their “as is, where is” condition. Accordingly, there is no
“Landlord’s Work” required in connection with the delivery of the Premises to
Tenant.
Section
2.7 Tenant's
Work.
(a) Tenant
shall be solely responsible for the construction, at its cost, of any
improvements to the Property that it elects to make during the Term (“Tenant’s
Work”). Tenant shall have the right to complete Tenant’s Work without the prior
consent of Landlord provided that (i) no Event of Default has occurred and
is
then continuing, (ii) Tenant constructs the Tenant’s Work in accordance with the
Site Plan, the Permitted Exceptions and all applicable governmental approvals
and permits, (iii) the Tenant’s Work does not involve any structural alteration
of the existing Premises, and (iv) except in case of the emergency, Tenant
delivers written notice of the planned Tenant’s Work at least thirty (30) days
prior to commencing the Tenant’s Work including with such notice a copy of any
and all relevant plans, specifications and working drawings.
(b) In
the
event Tenant performs any Tenant’s Work hereunder, Landlord shall cooperate with
Tenant and assist Tenant in Tenant’s efforts to obtain Tenant’s Building Permits
(including signing any applications) and an unconditional permanent certificate
of occupancy, or the local equivalent thereof (the “Certificate of Occupancy”),
provided Tenant reimburses Landlord for the reasonable out-of-pocket costs
and
expenses incurred by Landlord in connection with such cooperation, and provided,
further, any applications or other documents to be signed by Landlord are
in
form and substances reasonably acceptable to Landlord.
(c) So
long
as Tenant makes payments of Fixed Rent and Additional Charges required under
this Lease the failure to perform or complete any Tenant’s Work within any
specified period of time shall not be deemed an Event of Default hereunder.
Notwithstanding the foregoing, any Tenant’s Work undertaken by Tenant shall be
diligently pursued to completion by Tenant, and in any event shall be completed
before the expiration of the Lease Term.
5
(d) Tenant
shall indemnify, protect, defend and hold Landlord and its agents, contractors,
and employees harmless from and against all damages, suits, losses, costs,
expenses, claims, and causes of action relating to any liens for labor and
materials for any work on the Property undertaken by or for Tenant. Tenant
shall, at its own expense, defend all actions brought against Landlord, its
contractors, agents or employees, for which Tenant is or may be responsible
for
indemnification hereunder, with legal counsel reasonably acceptable to Landlord
and if Tenant fails to do so, Landlord (at its option, but without being
obligated to do so) may, at the expense of Tenant and upon notice to Tenant,
defend such actions, and Tenant shall pay and discharge any and all judgments
that arise therefrom. This Section shall survive the expiration or earlier
termination of this Lease.
ARTICLE
3
RENT
Section
3.1 Fixed
Rent.
Commencing on the Delivery Date (the “Rent Commencement Date”), Fixed Rent shall
be payable in advance, in equal monthly installments, on or before the first
(1st)
day of
each calendar month included in the Lease Term; and, for any portion of a
calendar month included at the beginning or end of the Lease Term, one-thirtieth
(1/30th)
of such
a monthly installment for each day of such portion, payable on the first
(1st)
day of
the month at the beginning (or end as the case may be) of the Lease Term.
At
Tenant’s election, Fixed Rent, Additional Charges and any other sums due
hereunder may be paid by Tenant to Landlord by electronic wire or funds transfer
or by other means of payment generally accepted and customarily used by Tenant.
The Fixed Rent provided for in this Lease is acknowledged by the parties
to be
sufficient consideration for the leasehold estate granted hereby.
Section
3.2 Real
Estate Taxes.
(a) The
Property constitutes a separate tax parcel for purposes of real property
taxes.
Commencing on the Rent Commencement Date, Tenant shall be solely responsible
for
payment of Taxes (as defined below) accruing during the Lease Term solely
with
respect to the land and improvements comprising the Property.
(b) The
term
“Taxes” shall mean and include all general ad valorem real estate taxes (both
real and personal), assessments (both general and special) and other
governmental impositions, including (i) any form of tax or assessment, license
fee, license tax, excise or tax on rent which may be imposed in lieu of (but
not
in addition to) ad valorem real estate taxes, and (ii) any levy, charge,
expense
or imposition (individually and collectively, "Impositions") imposed by any
Federal, state, county or city authority having jurisdiction, or any political
subdivision thereof, or any school, agricultural, lighting, drainage or other
improvement or special assessment district (individually and collectively,
"Governmental Agencies"), upon any interest of Landlord or Tenant (including
any
legal or equitable interest of Landlord or its mortgagee, if any) in the
Property, including but not limited to: (A) any Impositions (whether or not
such
Impositions constitute tax receipts to Governmental Agencies) in substitution,
partially or totally, of any Impositions now or previously included within
the
definition of real estate taxes including those imposed or required by
Governmental Agencies to increase tax increments to Governmental Agencies,
and
for services such as fire protection, street, sidewalk and road maintenance,
refuse removal or other governmental services formerly provided without charge
to Premises owners or occupants; (B) any Impositions allocable to or measured
by
the area of the Property or the sales generated from the Property, and (C)
any
Impositions upon this Lease transaction or any document to which Tenant is
a
party creating or transferring an interest or an estate in the Property.
Landlord shall provide to Tenant a copy of each tax ▇▇▇▇ received with respect
to the Property and Tenant shall pay directly, prior to delinquency, all
Taxes
levied or assessed against the Property. Nothing contained in this Lease
shall
require Tenant to pay any estate, inheritance, succession, capital levy,
corporate franchise, taxes on rentals, transfer or income tax of Landlord,
nor
shall Tenant be liable for any real estate tax attributable to a revaluation
of
the tax parcel arising out of a sale or other change in the ownership thereof
or
of any interest therein. If any assessment may be paid in installments, only
the
installment coming due during the term hereof shall be included within Taxes
when due (assuming Landlord had paid the assessment over the longest installment
period permitted).
6
(c) Any
rebates, refunds or abatements of Taxes received by Landlord with respect
to the
Property subsequent to payment of the Taxes by Tenant shall be refunded to
Tenant within ten (10) days of receipt thereof by Landlord.
(d) In
the
event Tenant’s tangible net worth is less than Five Hundred Million Dollars
($500,000,000.00), Landlord may, by written notice to Tenant, require Tenant
to
pay the Taxes directly to Landlord in advance, in twelve equal monthly
installments on the first calendar day of each month commencing after delivery
of Landlord’s notice, with a final payment from Tenant or credit from Landlord
due within thirty (30) days following receipt by Tenant of a billing therefor
from Landlord containing the calculation for the actual Taxes and evidence
(e.g., the tax ▇▇▇▇ from the taxing authority) of the amount of the Taxes
due
and payable for the applicable year. In the event Landlord collects the Taxes
from Tenant as provided in this Section 3.2(d), Landlord shall be solely
responsible for the timely payment of the Taxes due with respect to the Property
to the taxing authority.
Section
3.3 Sales
Tax. With each installment of Fixed Rent or Additional Charges paid by
Tenant to Landlord hereunder, Tenant shall pay to Landlord all sales taxes
due
thereon.
ARTICLE
4
MAINTENANCE
Section
4.1 Maintenance.
Tenant
shall be solely responsible for maintaining, at its sole cost, the Property.
The
Property shall be operated, repaired, replaced and maintained for their intended
purposes in compliance with all laws and in such manner as is consistent
with
the operation and maintenance of a first-class or well maintained retail
store
center similar in nature to and within the same metropolitan area as the
Property.
Tenant
shall be solely responsible for performing any obligations required to comply
with the terms of the REA, including without limitation any contributions
to
shared expenses pursuant to the REA.
ARTICLE
5
UTILITIES
AND SERVICES
Section
5.1 Utilities
in General.
Tenant
acknowledges that, as of the Delivery Date, the utilities required to operate
the Premises for the Permitted Use are existing and adequate. Tenant or the
applicable utility authority shall be solely responsible for the performance
of
any and all repairs to all utility lines (or to cause the utility company
to do
the same), pipes and other facilities leading to the Property. Tenant shall
select and pay the utility companies directly for all charges incurred for
the
use and connection of utility services to the Property including, without
limitation, sanitary sewer, storm sewer, water, gas, electric, telephone
and
other utilities consumed by Tenant on the Property.
Section
5.2 Additional
Utilities.
Tenant
shall have the right throughout the Lease Term, with the consent of Landlord
(such consent not to be unreasonably withheld, conditioned or delayed), to
install, replace, maintain and use such additional utility lines, conduits
and
facilities on the Property as Tenant may deem necessary. In the event any
such
utilities at the Property must be installed through, over or under the Property,
Landlord hereby agrees to grant the utility companies (public or private)
providing said utility lines, facilities and/or service to the Property,
perpetual, non-exclusive rights and easements to install, replace, relocate,
repair, operate and maintain lines, pipes, wires, conduits and other facilities
(together with the right of ingress and egress and other rights appurtenant
thereto), on, under, across and within the Property, as may from time to
time be
necessary or desirable to supply the Property with adequate utility
service.
ARTICLE
6
LANDLORD'S
AFFIRMATIVE AND NEGATIVE COVENANTS
Section
6.1 Affirmative
Covenants.
Landlord covenants and agrees throughout the Term of this Lease, as
follows:
7
6.1.1 To
permit
Tenant to lawfully, peaceably and quietly have, hold, occupy and enjoy the
Property for the Permitted Use and any appurtenant rights granted to Tenant
under this Lease during the Lease Term without hindrance or ejection by Landlord
or the successors or assigns of Landlord or anyone acting by, through or
under
Landlord (including without limitation any mortgagee of Landlord).
6.1.2 To
indemnify, protect, defend and hold Tenant and its agents and employees harmless
from and against all damages, suits, loss, costs, expenses, claims, causes
of
action, liabilities, and injuries, including without limitation reasonable
attorney's, consultant's and expert's fees and costs and litigation expenses
relating or resulting from personal injuries, bodily injuries (including
death)
and from injury or destruction to tangible property (i) occurring on the
Property as a result of the acts or omissions of Landlord, its contractors,
agents or employees, or (ii) occurring as a result of a breach by Landlord
of
any of its obligations hereunder; provided, however, such indemnification
shall
not extend to any suit, claim, or damage to the extent caused by the willful
misconduct or gross negligence of Tenant, its directors, officers, agents
and
employees. Landlord shall, at its own expense, defend all actions brought
against Tenant, its agents or employees, for which Landlord is or may be
responsible for indemnification hereunder, with legal counsel reasonably
acceptable to Tenant and if Landlord fails to do so, Tenant (at its option,
but
without being obligated to do so) may, at the expense of Landlord and upon
notice to Landlord, defend such actions, and Landlord shall pay and discharge
any and all judgments that arise therefrom. The provisions of this Section
6.1.2
shall
survive the expiration or earlier termination of this Lease.
6.1.3 To
indemnify, protect, defend and hold Tenant and its agents, contractors and
employees harmless from and against all damages, suits, losses, costs, expenses,
claims, and causes of action relating to any liens for labor and materials
for
any work on the Property undertaken by or for Landlord. Landlord shall, at
its
own expense, defend all actions brought against Tenant, its contractors,
agents
or employees, for which Landlord is or may be responsible for indemnification
hereunder, with legal counsel reasonably acceptable to Tenant and if Landlord
fails to do so, Tenant (at its option, but without being obligated to do
so)
may, at the expense of Landlord and upon notice to Landlord, defend such
actions, and Landlord shall pay and discharge any and all judgments that
arise
therefrom. This Section shall survive the expiration or earlier termination
of
this Lease.
6.1.4 (a)
To
defend
and indemnify Tenant, and hold Tenant harmless, from and against any and
all
claims, demands, causes of action, suits, damages, liabilities and expenses
(including reasonable attorneys' fees and litigation expenses) of any nature
whatsoever arising out of or in connection with a breach of the REA by Landlord
(except for breaches caused solely by Tenant’s failure to perform its
obligations under Section 8.2.7(a) hereof);
(b)
On
notice from Tenant, to enforce the provisions of the REA against all parties
and
other persons that are subject thereto (which enforcement may be satisfied
by
Landlord’s assignment of its enforcement rights with respect to any particular
matter, to Tenant). In the event that Landlord fails to make a diligent effort
to enforce the REA as provided in this subparagraph, Tenant shall have the
right, after fifteen (15) days notice to Landlord requesting enforcement
of the
REA, to enforce the REA on Landlord's behalf. Any costs incurred in the
enforcement of the REA, together with interest at the Interest Rate, will
be
payable by Tenant to Landlord as Additional Charges within ten (10) days
of
Landlord’s demand therefor; and
(c)
To
provide Tenant copies of all notices (including, without limitation, default
notices) received by it or which are sent by it (concurrently with the sending
thereof) in connection with the REA.
Section
6.2 Negative
Covenants.
Landlord covenants and agrees throughout the Term of this Lease, as
follows:
6.2.1 Except
as
expressly set forth herein and except in the case of emergency, not to enter
the
Property or conduct work therein without the prior written consent of
Tenant.
8
6.2.2 Except
as
expressly authorized by Tenant, not to permit any encumbrance to Landlord’s
title to the Property to exist other than the Permitted Exceptions or in
connection with a financing of the Property by Landlord.
6.2.3 Whenever,
pursuant to the REA, consent shall be required by or requested from Landlord,
or
an election made by Landlord, not to grant such consent or make such election
without the prior consent of Tenant (which shall not be unreasonably
withheld).
6.2.4 Not
to
materially amend, modify or terminate the REA without the prior consent of
Tenant (which shall not be unreasonably withheld).
ARTICLE
7
LANDLORD'S
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
Section
7.1 Landlord's
Representations, Warranties and Additional Covenants.
Landlord, in order to induce Tenant to enter into this Lease, hereby represents,
warrants and covenants:
7.1.1 That
Landlord is duly organized and validly existing, is authorized to transact
business in the state in which the Property is located and has full power
and
authority to enter into this Lease, without the consent, joinder or approval
of
any other person or entity, including, without limitation, any
mortgagee(s).
7.1.2 That
Landlord is not a party to any agreement or litigation which could adversely
affect the ability of Landlord to perform its obligations under this Lease
or
which would constitute a default on the part of Landlord under this Lease,
or
otherwise adversely affect Tenant's rights or entitlements under this
Lease.
7.1.3 Landlord
is the sole fee simple owner of the Property and has good and marketable
title
thereto, subject only to the Permitted Exceptions.
7.1.4 That
any
construction activities being conducted by, through or under Landlord on
or
around the Property shall be performed in a manner having as little adverse
effect as possible (under the circumstances) on Tenant's operations in the
Premises, and in no event shall any portion of the Property be used for the
staging of trucks or equipment or the storage of materials, nor shall access
to
the Property be adversely affected. Landlord shall notify Tenant in writing
at
least ten (10) days prior to the commencement of any reconstruction, repairing
or repaving of the Property and/or any restriction or closure of any access
roads or entrances to the Property in respect of any construction activities
being conducted by, through or under Landlord. If such reconstruction,
repairing, repaving, restriction, and/or closure substantially impedes or
interferes with normal access to the Property in a manner which interferes
with
Tenant’s business therein, and such condition continues in excess of two (2)
business days after notice to Landlord from Tenant, then until such work
no
longer substantially impedes or interferes with normal access to the Premises,
Fixed Rent shall be equitably abated during the period subsequent to such
two
(2) day period until such condition ceases. Except in the event of an emergency,
in no event shall such reconstruction, repaving or repairing activities occur
during the period from August 1, through September 15 or November 20 through
January 7 of any calendar year
ARTICLE
8
TENANT'S
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section
8.1 Tenant’s
Representations and Warranties.
8.1.1 That
Tenant is duly organized and validly existing, is authorized to transact
business in the state in which the Property is located and has full power
and
authority to enter into this Lease, without the consent, joinder or approval
of
any other person or entity, including, without limitation, any
mortgagee(s).
9
8.1.2 That
Tenant is not a party to any agreement or litigation which could adversely
affect the ability of Tenant to perform its obligations under this Lease
or
which would constitute a default on the part of Tenant under this Lease,
or
otherwise adversely affect Landlord's rights or entitlements under this
Lease.
8.1.3 Except
as
disclosed in that certain Environmental Site Assessment dated _______ prepared
by _______________ (the “Environmental Report”), (i) no Hazardous Substances
have been installed, used, generated, manufactured, treated, handled, refined,
produced, processed, stored or disposed of, or otherwise present in, on or
under
the Property by Tenant or, to Tenant’s knowledge, by any third party, except in
such amounts and of such types as are permitted by the Environmental Laws
for
the operation of Tenant’s business; (ii) no activity has been undertaken with
respect to the Property by Tenant or, to Tenant’s knowledge, any third party
which would cause a violation or support a claim under Environmental Laws,
(iii)
no investigation, administrative order, litigation or settlement with respect
to
any Hazardous Substances is in existence with respect to the Property, nor,
to
Tenant’s knowledge, is any of the foregoing threatened, (iv) no written notice
has been received by Tenant from any entity, governmental body or individual
claiming any violation of any Environmental Law, or requiring compliance
with
any Environmental Law, or demanding payment or contribution for environmental
damage or injury to natural resources; and (v) Tenant has not obtained and,
to
Tenant’s knowledge, is not required to obtain, and Tenant has no knowledge of
any reason Landlord will be required to obtain, any permits, licenses, or
similar authorizations to occupy, operate or use the Improvements or any
part of
the Property by reason of any Environmental Law.
8.1.4 That
a
certificate of occupancy has been issued for the Property and remains in
effect,
unless a certificate of occupancy is not required by law. [INCLUDED
FOR PALO ALTO, EL PASO AND CHICAGO ONLY]
Section
8.2 Covenants.
Tenant
covenants and agrees throughout the Term of this Lease, as follows:
8.2.1 To
maintain and keep the Property in a good condition and state of repair,
including all equipment, facilities and fixtures therein, and to return the
Property to the Landlord upon the expiration or prior termination of the
Lease
Term in the same or better state of repair and condition as existed on the
Delivery Date, subject to normal wear and tear, alterations and additions
permitted hereunder and/or Approved Subleases to the extent permitted hereunder.
This provision shall expressly survive the expiration or prior termination
of
this Lease.
8.2.2 To
cause
the Property to be free of liens for labor and materials for any work on
the
Property undertaken by Tenant and to indemnify, protect, defend and hold
Landlord harmless from and against all damages, suits, losses, costs, expenses,
claims, and causes of action relating to any liens for labor and materials
for
any work in the Property undertaken by Tenant.
8.2.3 To
save
Landlord harmless and indemnified from all injury, loss, claims or damage
to any
person or property while on the Property after the Delivery Date, unless
caused
by the gross negligence or willful misconduct of Landlord, its agents and
employees; and, subject to Section 12 hereof, to save Landlord harmless and
indemnified from all injury, loss, claims or damage to any person or property
occasioned by any negligent act or omission of Tenant, its agents, employees
or
contractors; and to save Landlord harmless and indemnified, from and against
any
and all claims, demands, causes of action, suits, damages, liabilities and
expenses (including reasonable attorneys' fees and litigation expenses) arising
as a result of Tenant’s failure to have a certificate of occupancy for the
Property, unless a certificate of occupancy is not required by law or the
failure to have a certificate of occupancy does not have a material and adverse
effect on Tenant’s ability to operate the Premises for the Permitted Use.
[DELETE
LAST PHRASE FOR ALL BUT PALO ALTO, EL PASO AND
CHICAGO]
10
8.2.4 To
maintain, with responsible companies qualified to do business in the state
in
which the Property is located, (i) general or commercial public liability
insurance covering the Property, naming Landlord as an additional insured,
with
limits at least equal to those set forth in Section 1.1.14
and
commercially reasonable deductibles, (ii) casualty insurance insuring the
full
replacement value of the Premises with a commercially reasonable deductible
and
(iii) workers' compensation insurance (with the limits required by applicable
law) covering all of Tenant's employees working in the Premises, and to deposit
with Landlord certificates for such insurance bearing the endorsement that
the
policies will not be canceled or reduced in scope of coverage or amount of
coverage until thirty (30) days after written notice to Landlord, which policies
will, in any event, be reasonably satisfactory to any mortgagee of Landlord.
Tenant agrees to name Landlord and its mortgagee, if any, as additional insureds
on the policies required to be maintained by Tenant hereunder. Tenant may
maintain the general or commercial public liability insurance referred to
in (i)
above on a blanket basis and/or may self-insure the general or commercial
public
liability insurance referred to in (i) above so long as Tenant's net worth
(or
that of its parent company to the extent such parent shall guarantee the
Tenant's obligations under this Lease) is in excess of One Hundred Million
Dollars ($100,000,000.00), as increased by the percentage increase in the
National Consumer Price Index (CPI) (all items 1982-84 equals 100) as published
by the Bureau of Labor Statistics of the U.S. Department of Labor, as evidenced
by annual financial statements provided to Landlord by Tenant's accountants
or
by reports published in accordance with the Securities Exchange Commission's
reporting requirements for publicly traded companies, as computed in accordance
with generally-accepted accounting principles. Notwithstanding the foregoing,
in
the event an Institutional Mortgagee objects to Tenant maintaining any of
the
foregoing coverages through self-insurance, Tenant and such Institutional
Mortgagee shall negotiate in good faith to satisfy the concerns of the
Institutional Mortgagee and cause such Institutional Mortgagee to accept
Tenant’s program of insurance (including obtaining the insurance coverages
required above in lieu of self-insurance if required by such Institutional
Mortgagee).
8.2.5 Tenant
shall, as its own cost and expense, obtain any and all licenses and permits
necessary for any Permitted Use. Tenant shall comply with all governmental
laws,
ordinances and regulations applicable to the use of the premises including
without limitation The Americans with Disabilities Act, all requirements
of the
Occupational Safety and Health Administration, and Environmental Law as defined
herein, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the premises, all at Tenant’s sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas noise or
vibrations to emanate from the premises, nor take any other action which
would
constitute a nuisance. Tenant shall not receive, store or otherwise handle
any
product, material or merchandise which is explosive or highly inflammable
(other
than Permitted Materials handled in compliance with Environmental Law), without
Landlord’s prior written consent. Tenant will not permit the Premises to be used
for any purpose or in any manner (including without limitation any method
of
storage) which would render the insurance thereon void.
8.2.6 (a)
As
used in this lease, “Environmental Law” shall mean all federal, state and local
laws, statutes, ordinances, regulations, rules, judicial and administrative
orders and decrees, permits, licenses, approvals, authorizations and similar
requirements of all federal, state and local governmental agencies or other
governmental authorities pertaining to the protection of human health and
safety
or the environment, now existing or later adopted during the term of this
lease.
As used in this lease, “Permitted Materials” shall mean the materials handled by
Tenant in the ordinary course of conducting Permitted Uses.
11
(b) Tenant
hereby agrees that: (a) Tenant shall not conduct, or permit to be conducted,
on
the Premises any activity which is not a Permitted Use; (b) Tenant shall
not
use, store or otherwise handle, or permit any use, storage or other handling
of,
any Hazardous Substance which is not a Permitted Material on or about the
Premises; (c) Tenant shall obtain and maintain in effect all permits and
licenses required pursuant to any Environmental Law for Tenant’s activities on
the Premises, and Tenant shall at all times comply with all applicable
Environmental Laws; (d) Tenant shall not engage in the storage, treatment
or
disposal on or about the Premises of any Hazardous Substance except for any
temporary accumulation of waste generated in the course of Permitted Use;
(e)
Tenant shall not install any aboveground or underground storage tank or any
subsurface lines for the storage or transfer of any Hazardous Substance,
except
for the lawful discharge of waste to the sanitary sewer, and Tenant shall
store
all Hazardous Substances in a manner that protects the Premises and the
environment from accidental spills and releases; (f) Tenant shall not cause
or
permit to occur any release of any Hazardous Substance other than Permitted
Materials, or any condition of pollution or nuisance on or about the Premises
in
violation of Environmental Law, whether affecting surface water or groundwater,
air, the land or the subsurface environment; (g) Tenant shall promptly remove
from the Premises any Hazardous Substance introduced, or permitted to be
introduced, onto the premises by Tenant which is not a Permitted Material
and,
on or before the date Tenant ceases to occupy the Premises, Tenant shall
remove
from the Premises all Hazardous Substances and all Permitted Materials handled
by or permitted on the Premises by Tenant; (h) if any release of a Hazardous
Substance to the environment, or any condition of pollution or nuisance,
occurs
on or about or beneath the Premises in violation of Environmental Law as
a
result of any act or omission of Tenant or its agents, officers, employees,
contractors, invitees of licensees, Tenant shall, at Tenant’s sole cost and
expense, promptly undertake all remedial measures required to clean up and
▇▇▇▇▇
or otherwise respond to the release, pollution or nuisance in accordance
with
all applicable Environmental Laws. Landlord and Landlord’s representatives shall
have the right, but not the obligation, to enter the Premises at any reasonable
time for the purpose of inspecting the storage, use and handling of any
Hazardous Substance on the Premises in order to determine Tenant’s compliance
with the requirements of this lease and applicable Environmental Law. If
Landlord gives written notice to Tenant that Tenant’s use, storage or handling
of any Hazardous Substance may not comply with this lease or applicable
Environmental Law, Tenant shall correct any such violation within five (5)
days
after Tenant’s receipt of such notice from Landlord. Tenant shall indemnify and
defend Landlord against and hold Landlord harmless from all claims, demands,
actions, judgments, liabilities, costs, expenses, losses, damages, penalties,
fines and obligations of any nature (including, reasonable attorneys’ fees and
disbursements incurred in the investigation, defense or settlement of claims)
that Landlord may incur as a result of, or in connection with, claims arising
from the presence, use, storage, transportation, treatment, disposal, release
or
other handling, on or about or beneath the Premises, or any Hazardous Substance
introduced or permitted on or about or beneath the Premises by any act or
omission of Tenant or its agents, officers, employees, contractors, invitees
or
licensees. The liability of Tenant under this Section 8.2.6(b) shall survive
the
termination of this lease with respect to acts or omissions that occur before
such termination.
8.2.7 (a)
To
comply
with, carry out and perform, at its sole cost and expense, all of the terms,
covenants and conditions of the REA on Landlord's part to be performed (except
to the extent of consents required to be given or denied by Landlord under
the
REA, which consent rights will be retained by Landlord subject to Section
6.2.3
above);
(b)
To
defend and indemnify Landlord, and hold Landlord harmless, from and against
any
and all claims, demands, causes of action, suits, damages, liabilities and
expenses (including reasonable attorneys' fees and litigation expenses) of
any
nature whatsoever arising out of or in connection with a breach of the REA
by as
a result of a breach of Tenant’s obligations hereunder, or any covenant, term,
condition or provision of the REA; and
(c)
To
provide Landlord copies of all notices (including, without limitation, default
notices) received by it or which are sent by it (concurrently with the sending
thereof) in connection with the REA.
ARTICLE
9
ASSIGNMENT
AND SUBLETTING
Section
9.1 Rights
and Conditions.
Except
as permitted below, Tenant shall not assign, transfer, or sublet this Lease
or
any interest therein, nor sublet the whole or any part of the Premises without
the prior written consent of Landlord, it being provided that Landlord shall
not
unreasonably withhold, condition, or delay such consent; provided however,
any
such consent shall be conditioned upon the following conditions:
(a) no
Event
of Default (as hereinafter defined) has occurred and is continuing at the
time
of the request for consent to the assignment or sublease;
12
(b) the
assignee or subtenant shall assume in writing the performance of all of the
terms, provisions and covenants of this Lease on the part of Tenant to be
kept
and performed;
(c) Tenant
shall deliver to Landlord within fifteen (15) days (or as soon thereafter
as is
reasonably practicable) after the assignment or subletting an executed duplicate
of such agreement, together with a duly executed assumption
agreement;
(d) that
the
initial Tenant and any assignee(s) of Tenant (including subsequent assignees)
shall remain liable for the full performance of all of Tenant's obligations
hereunder during the entire Lease Term (however, no Tenant shall be liable
for
any change, modification or amendment made to this Lease by any assignee to the
extent any such change, modification or amendment increases the liability
of the
“Tenant” under this Lease, which shall include, without limitation, granting
additional renewal options that were not initially set forth in this Lease),
and
provided in the event of an assignment, if the net worth of Tenant's proposed
assignee (or a guarantor thereof) exceeds Tenant’s tangible net worth as of the
date hereof, increased by the percentage increase in the National Consumer
Price
Index (CPI) (all items 1982-84 equals 100) as published by the Bureau of
Labor
Statistics of the U.S. Department of Labor as of the date of such assignment,
the initial Tenant and all assignors shall be released of any and all further
liability under this Lease; and
(e) that
any
sublease shall be subject and subordinate to this Lease, and the subtenant
shall
comply with all terms and conditions of this Lease (excepting the rental
provisions contained herein), including without limitation all restrictions
upon
the use of the Property contained herein.
(d) Notwithstanding
the foregoing, Tenant shall have the right, without Landlord’s consent, to
assign this Lease or sublet the leased premises or any part thereof for the
Permitted Use: (i) to any corporation or other business entity into which
or
with which Tenant merges or consolidates, (ii) to any parent of Tenant,
subsidiary of Tenant, affiliate of Tenant or other entity under common control
with Tenant or Tenant’s parent company, (iii) to any entity which is created or
is the surviving entity in the event of a reorganization or merger, (iv)
to any
entity that purchases or succeeds to all or substantially all of the assets
of
Tenant or Tenant’s parent; or to extend licenses to use non-demised portions of
the Premises to service providers operating a Permitted Use. In the event
of an
assignment the assignee shall deliver to Landlord a copy of its merger or
other
certificate documenting any assignment by operation of law or, if not an
assignment by operation of law, shall deliver to Landlord a copy of an
assignment and assumption agreement whereby such assignee agrees to assume
and
perform all of the terms and conditions of this Lease on Tenant’s part from and
after the effective date of such assignment. No assignment or sublease under
this Section 9.1(d) shall relieve Tenant of liability under this
Lease.
Section
9.2 Non-Disturbance.
Upon
request of Tenant, but only during the Initial Term of the Lease, provided
that
there is no uncured or unwaived Event of Default by Tenant, Landlord shall
execute and deliver to a sublessee under an “Approved Sublease” (as defined
below) an agreement to the effect that notwithstanding the termination of
this
Lease by Landlord, the rights of the sublessee thereunder shall not be disturbed
by Landlord but shall continue in full force and effect so long as such
sublessee shall continue to observe and perform all of its obligations under
such sublease. A permitted sublease shall be considered an “Approved Sublease”
if the sublease satisfies all of the following criteria: (i) it obligates
the
sublessee(s) to pay rent in an amount not less than a proportionate share
of
Fixed Rent payable under this Lease as well as a proportionate share of taxes,
utilities and all other charges payable by Tenant, (ii) the subtenant is
located
within separately demised premises which are served by separately metered
utility
services, (iii) the premises leased pursuant to the sublease comprise greater
than 5,000 square feet of gross leasable area, (iv) Landlord has approved
the
configuration of the demising wall(s) that have been or will be constructed
by
Tenant to create the subleased premises, (v) the tenant under the sublease
is a
retailer operating at least 50 stores that has a tangible net worth of at
least
$50,000,000 immediately prior to such assignment. Any such Non-Disturbance
Agreement will expressly provide that in no event shall Landlord be responsible
to sublessee or any other party for any matters to be performed by the sublessor
under the sublease.
13
ARTICLE
10
DAMAGE
AND DESTRUCTION; CONDEMNATION
Section
10.1 Fire
or Other Casualty.
10.1.1 If
during
the Lease Term, any or all of the Premises shall be damaged or destroyed
by fire
or other casualty, Tenant shall promptly deliver written notice thereof to
Landlord and Tenant shall repair such damage and restore the Premises to
substantially their condition at the time of such damage or, at Tenant's
option,
Tenant shall repair, rebuild and restore the Premises in accordance with
such
plans and specifications as are then generally in use by Tenant for the
construction of one of Tenant's prototypical stores and related structures
so
long as the repaired, rebuilt or replaced Premises will have a value not
less
than its value immediately prior to said loss, any such repairs or rebuilding
to
be subject to the reasonable approval of Landlord.
10.1.2 If
the
Premises shall be “substantially damaged” (as defined in Section 10.1.3 below)
or destroyed by fire or other casualty within the last two (2) years of the
Lease Term, either Landlord or Tenant shall have the right to terminate this
Lease, provided that notice thereof is given by one party to the other not
later
than thirty (30) days after such damage or destruction. In the event either
party elects to terminate this Lease as provided above, Tenant shall cause
all
insurance proceeds with respect to the improvements on the Premises to be
paid
over to Landlord by the insurer, excluding those proceeds attributable to
Tenant’s fixtures and personal property. In such event, Tenant shall also pay
over to Landlord, the full amount of any deductible. In the event an extension
option remains and is exercisable under Section 2.3 as of the date of Landlord’s
termination notice above, by notice to Landlord not more than fifteen (15)
days
thereafter, Tenant may exercise its next extension option, in which event,
Landlord’s termination notice on the basis of such casualty will be ineffective.
Any additional notice required from Landlord to Tenant under Section 2.3
shall
not be required in the context of the Tenant’s failure to exercise an extension
option within the foregoing fifteen (15) day period.
10.1.3 The
term
“substantially damaged” and “substantial damage” as used in this Article, shall
mean that the Premises have been damaged to the extent that the cost of such
restoration of the Premises will exceed a sum constituting sixty percent
(60%)
of the total replacement cost of the Premises. Any damage that is not deemed
to
be “substantial damage” shall be deemed to be “partial damage” or “partially
damaged.”
Section
10.2 Eminent
Domain.
10.2.1 In
the
event that all or a part of the Property is taken or condemned for public
or
quasi-public use under any statute or by the right of eminent domain or,
in lieu
thereof, all or a part of the Property is conveyed to a public or quasi-public
body under threat of condemnation (any such event, a “Condemnation”), and the
Condemnation renders the Premises unsuitable in Tenant's reasonable
determination for Tenant's normal business use, then, at the option of Tenant
exercised within 30 days after the Condemnation occurs: (i) this Lease shall
terminate as of the date possession of all or such part of the property is
taken
by, or conveyed to, the condemning authority; (ii) all Rent shall be apportioned
as of the date that possession of all or such part of the Property is taken
by,
or conveyed to, the condemning authority; and (iii) all obligations hereunder,
except those accruing prior to the date of Condemnation, shall cease and
terminate.
10.2.2 In
the
event that Tenant does not elect to terminate this Lease pursuant to this
Section 10.2, Fixed Rent and Additional Charges shall be reduced for the
remainder of the Lease Term in proportion to the area of the Property taken
by,
or conveyed to, the condemning authority, and Tenant shall be responsible
for
the performance of all work necessary to make the Premises usable by Tenant.
In
the event that any Condemnation is temporary in nature, Fixed Rent and
Additional Charges shall be abated with respect to the portion of the Property
taken by the condemning authority until such Condemnation
ceases.
14
10.2.3 Upon
any
Condemnation that results in the termination of this Lease, each of Landlord
and
Tenant shall be entitled to apply for a separate award based on the respective
fair market values of Landlord’s interest in the Property (appraised by
reference to all relevant factors including the income stream derivable by
Landlord under this Lease and the then present value of Landlord’s reversionary
interest in the Property after expiration of the Term) and Tenant’s interest in
the Property (appraised by reference to all relevant factors, including the
income stream derivable by Tenant from the Property for the remainder of
the
Term).
10.2.4 Upon
any
Condemnation that does not result in the termination of this Lease but will
require restoration work to the Property, then (a) Tenant shall be entitled
to
receive an award equal to the costs of any such restoration, repair or
refurbishment and (b) Landlord and Tenant shall each be entitled to apply
for an
award based on their respective interests in the portion of the Property
that is
taken as provided in Section 10.2.3.
ARTICLE
11
DEFAULT
AND REMEDIES
Section
11.1 Tenant's
Default.
Each of
the following shall be an “Event of Default” under this Lease: (a) if Tenant
shall fail to make any payment of Fixed Rent or Additional Charges on the
date
when due and such failure shall continue for a period of five (5) days after
Tenant's receipt of written notice of such failure (which notice shall be
sent
by Landlord no earlier than two (2) days after such payment was due); (b)
if
Tenant shall fail to perform or observe any of Tenant's covenants and if
such
failure shall continue for more than fifteen (15) days after Tenant's receipt
of
written notice of such failure or such longer time as may be reasonably required
to cure because of the nature of the default (provided Tenant must have
undertaken procedures to cure the default within such fifteen (15) day period
and thereafter diligently pursues such effort to completion); (c) Tenant
shall
be adjudged insolvent, make a transfer in fraud of creditors or make an
assignment for the benefit of creditors; (d) Tenant shall file a petition
under
any section or chapter of the United States Bankruptcy Reform Act of 1978,
as
amended, or under any similar law or statute of the United States or any
state
thereof, or Tenant shall be adjudged bankrupt or insolvent in proceedings
filed
against Tenant thereunder; or (e) a receiver or trustee shall be appointed
for
all or substantially all of the assets of Tenant and Tenant shall not have
had
such appointment discharged within ninety (90) days after Tenant receives
written notice of such appointment.
Upon
the
occurrence of any Event of Default Landlord lawfully may, immediately or
at any
time thereafter, pursuant to summary dispossession or other legal proceedings,
enter into and upon the Property or any part thereof, repossess the same
as of
its former estate, and expel Tenant, and those claiming an interest by, through
or under Tenant, and remove any personalty left by Tenant (or anyone claiming
by, through or under Tenant) without being deemed guilty of any manner of
trespass, and without prejudice to any remedies which might otherwise be
used
for arrearages of rent or other breach hereunder, or upon written notice
to
Tenant, terminate this Lease. If Landlord elects to repossess the Property
due
to an Event of Default as aforesaid, then Tenant shall (a) remain liable
for all
rental and other obligations accruing up to the date of such repossession,
and
(b) be liable to Landlord for all reasonable costs actually incurred in
connection with the repossession and re-letting of the Property (including,
without limitation, reasonable attorneys' and brokerage fees, but not including
any costs of renovating or retrofitting the Premises), and (c) remain liable
for
the payment of all obligations payable hereunder, including without limitation,
Fixed Rent and Additional Charges specified hereunder, all for the balance
of
the unexpired Term of this Lease in effect as of the date of repossession
by
Landlord. In the event the Property or any portion thereof is re-let by
Landlord, Tenant shall be entitled to a credit against its rental obligations
hereunder in the amount of rents received by Landlord from any such re-letting
of the Property less any reasonable costs incurred by Landlord (not previously
reimbursed by Tenant) in connection with the repossession and re-letting
of the
Property (including without limitation reasonable attorneys' fees and brokerage
commissions, but not including any cost of renovating or retrofitting the
Premises). In the event of termination of Tenant’s right of possession of the
Property by Landlord as aforesaid, Landlord shall use reasonable efforts
to
re-let the Property at a fair market rental or as near thereto as is possible
under the circumstances then existing so as to minimize the damages suffered
by
Landlord and payable by Tenant hereunder. Notwithstanding anything contained
herein, in no event is Landlord entitled to: (a) accelerate Rent; or (b)
lock
out Tenant or forcibly retake possession of the Property without due legal
process and an appropriate court order.
15
Following
an Event of Default that results in a termination of this Lease by Landlord,
Tenant shall be liable for, and shall pay Landlord, an amount equal to (i)
the
sum of all amounts due hereunder at the date of termination, plus (ii)
any
liabilities,
costs, expenses, losses, damages, penalties, fines and obligations of any
nature
of
Landlord resulting from Tenant’s failure to comply with its obligations under
the Lease prior to the termination of the Lease,
plus
(iii) the
aggregate amount of all obligations payable hereunder, including without
limitation, Fixed Rent and Additional Charges specified hereunder over the
unexpired portion of the Lease Term, reduced to present value using a discount
rate equal to the interest rate of a governmental security having a maturity
closest to the then current expiration of the Lease Term, less (iv) the
aggregate fair net rental value of the Premises over the remaining portion
of
the Lease Term (taking into account Fixed Rent and Additional Charges) reduced
to present value, plus (v) Landlord’s costs and expenses incurred in the
enforcement hereof including reasonable attorneys’ fees actually incurred as
herein provided; plus (vi) reasonable costs incurred in connection with the
re-letting of the Property (including, without limitation, reasonable brokerage
fees, but not including any costs of renovating or retrofitting the Premises);
plus (vii) reasonable costs of returning the Property to a White Box condition.
For purposes hereof, “White Box” shall
mean broom clean with only finished ceilings, lighting, plumbing, heating
and
cooling (HVAC), interior walls (painted or unpainted), electrical outlets,
rest
rooms, and a concrete floor, all of which shall be functional but shall be
subject to ordinary wear and tear.
In
the
event Tenant disputes the amount of the damages assessed by Landlord hereunder,
and the Landlord and Tenant are not then parties to litigation in any court
of
competent jurisdiction with respect to this Lease or any of the Related Leases,
each party commits that the parties shall first endeavor to resolve their
dispute by good faith negotiations between or among the parties. If the parties
are unable to resolve their dispute, then the matter shall be reviewed by
a
senior level executive of each party (in the case of Office Depot, by a Vice
President of the company, or higher). In the event these senior officers
are
unable to resolve the matter, the parties agree to attempt to mediate their
dispute within thirty (30) days after the dispute initially arose, using
a third
party mediator. All mediation proceedings shall be confidential, and no
information exchanged in such mediation shall be discoverable or admissible
in
any litigation involving the parties. In the event the dispute is not resolved
by mediation within thirty (30) days, then Tenant shall be entitled to pursue
its claims in a court of competent jurisdiction.
If
Tenant
shall fail to keep or perform any of its obligations as provided in this
Lease
then Landlord may (but shall not be obligated so to do) upon the continuance
of
such failure on Tenant's part for ten (10) days after notice of such failure
is
given Tenant by Landlord (except that such notice need not be given in any
case
reasonably deemed by Landlord to constitute an emergency), and without waiving
or releasing Tenant from any obligation hereunder, as an additional but not
exclusive remedy, make any such payment or perform any such obligation, and
all
sums so paid by Landlord and all necessary incidental costs and expenses
incurred by Landlord in performing such obligation shall be deemed Additional
Charges and shall be paid to Landlord on demand, along with interest thereon
at
a rate per annum equal to the Interest Rate, and if not so paid by Tenant,
Landlord shall have the same rights and remedies provided for in this Section
in
the case of default by Tenant in the payment of Fixed Rent.
Section
11.2 Cross-Default
by Tenant.
As of
the date hereof, Landlord (or its affiliates) and Tenant (or its affiliates)
have entered into leases with respect to, in aggregate, eight (8) parcels
of
real property, including the Property, which are identified on Exhibit
L
hereto
(collectively, the “Related Leases”). Tenant acknowledges and agrees that, in
addition to the Events of Default specified in Section 11.1, the following
shall
constitute an Event of Default under this Lease: (a) a monetary Event of
Default
under any of the Related Leases, and (b) a non-monetary Event of Default
arising
from any of the following: (i) the release of any Hazardous Substance by
Tenant
at any property that is the subject of the Related Leases in violation of
applicable Environmental Law, (ii) fraud or intentional misrepresentation
by
Tenant in the performance of its obligations under any of the Related Leases,
(iii) Tenant’s performance of any alterations to property that is the subject of
the Related Leases without the prior consent of Landlord, if Landlord’s consent
is required under the terms of such Related Lease, (iv) Tenant’s assignment or
sublet of the property that is the subject of the Related Leases without
the
prior consent of Landlord, if Landlord’s consent is required under the terms of
such Related Lease, or (v) Tenant’s failure to perform any single non-monetary
obligation under any of the Related Leases if the estimated cost of performance
exceeds $250,000. The cross-default provisions contained herein may be waived
or
released from time to time in the sole discretion of the Landlord with respect
to one or more of the Related Leases as they relate to one or more of the
other
Related Leases, which waiver shall become effective upon Landlord’s delivery of
written notice to Tenant specifying which of the Related Leases shall, after
the
date of such notice, be subject to cross-default with this Lease, until
Landlord’s delivery of any substitute notice.
16
Section
11.3 Holdover
by Tenant.
In
the
event Tenant remains in possession of the Property after the expiration of
this
Lease, and without the execution of a new lease, Tenant, at the option of
Landlord, shall be deemed to be occupying the Property as a tenant from month
to
month, subject to all the conditions, provisions and obligations of this
Lease,
with the exception that Fixed Rent shall be increased to one hundred and
fifty
percent (150%) of the Fixed Rent that existed on the month prior to the
expiration of the Lease Term.
Section
11.4 Effect
of Waivers of Default by Landlord or Tenant.
No
failure by either Landlord or Tenant to insist upon the strict performance
by
the other of any covenant, agreement, term or condition of this Lease, or
to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial payment of rent or other monetary obligation during the
continuance of any such breach shall constitute a waiver of any such breach
or
of such covenant, agreement, term or condition. No consent or waiver, express
or
implied, by either Landlord or Tenant to or of any breach by the other of
any
covenant, condition or duty under the Lease shall be construed as a consent
or
waiver to or of any other breach of the same or any other covenant, condition
or
duty, unless in writing signed by the party waiving same.
Section
11.5 Landlord's
Default.
If
Landlord shall violate, neglect or fail to perform or observe any of the
representations, covenants, provisions, or conditions contained in this Lease
or
the REA on its part to be performed or observed, which default continues
for a
period of more than thirty (30) days after receipt of written notice from
Tenant
specifying such default, or if such default is of a nature to require more
than
thirty (30) days for remedy and continues beyond the time reasonably necessary
to cure (provided Landlord must have undertaken procedures to cure the default
within such thirty (30) day period and thereafter diligently pursues such
efforts to cure to completion), Tenant may, at its option (in addition to
all
other rights and remedies specifically set forth in this Lease or available
to
Tenant at law or in equity), either terminate this Lease upon written notice
thereof given to Landlord, or, upon further written notice to Landlord of
Tenant's intention to exercise its self-help remedies hereunder, and after
providing Landlord with an additional thirty (30) days cure period thereafter,
incur any reasonable expense necessary to perform the obligation of Landlord
specified in such notice and ▇▇▇▇ Landlord for the costs thereof.
Notwithstanding the foregoing, if in Tenant's reasonable judgment, an emergency
shall exist, Tenant may cure such default with only reasonable (under the
circumstances) notice to Landlord being required. The self-help option given
in
this Section is for the sole protection of Tenant, and its existence shall
not
release Landlord from its obligation to perform the terms, provisions, covenants
and conditions herein provided to be performed by Landlord or deprive Tenant
of
any legal rights which it may have by reason of any such default by
Landlord.
Section
11.6 Breach
of a Covenant.
Landlord further agrees that, in the event of a violation or breach of any
covenant by Landlord contained in this Lease, Landlord will promptly and
as
expeditiously as possible, after notice, take any and all steps necessary
to
terminate such violation. If Tenant’s ability to conduct its normal business
operations in the Premises is materially adversely affected due to a breach
of
any of the negative covenants set forth in Section 6.2 of this Lease, then,
without limiting any other right or remedy of Tenant, at law, in equity or
under
this Lease, Fixed Rent and Additional Charges shall be abated for the period
of
such impairment. If such violation of the negative covenants contained in
Section 6.2 is not cured within sixty (60) days after Tenant's notice of
such
violation, in addition to such other remedies as may be accorded Tenant at
law,
in equity or under this Lease, then Tenant may terminate this Lease by
delivering written notice of termination to Landlord. In the event that Tenant
elects to terminate this Lease pursuant to this Section 11.5, Landlord shall
pay
to Tenant, upon such termination Tenant’s Unamortized Improvements.
17
Section
11.7 Interest
on Late Payments.
All
payments due under this Lease which are not paid when first due, whether
from
Landlord to Tenant or from Tenant to Landlord, which remain unpaid at the
end of
the fifteen days (15) days following the delinquent party's receipt of written
notice of delinquency( or, in the case of Fixed Rent, at the end of five
(5)
days after Tenant's receipt of written notice of delinquency) shall bear
interest from the original due date until paid at the Interest
Rate.
ARTICLE
12
MISCELLANEOUS
PROVISIONS
Section
12.1 Notices
from One Party to the Other.
Any
notice, request, demand, consent, approval or other communication required
or
permitted under this Lease shall be in writing and shall be deemed to have
been
given: (a) when delivered by express mail or courier service providing
confirmation of delivery to the address set forth below; or (b) on the third
(3rd) business day after being properly deposited in United States registered
or
certified mail, return receipt requested, postage prepaid, and addressed
as set
forth below; or (c) the date any delivery in the manner described in (a)
or (b)
above is refused. Any notice alleging a default shall be clearly noted as
such.
Either party hereto shall have the right to change, at anytime, its address
for
notice as aforesaid upon at least ten (10) days' prior written notice thereof
given to the other party. Addresses for notice are as follows:
IF
TO
LANDLORD, as set forth in Section 1.1.17;
and
IF
TO
TENANT:
OFFICE
DEPOT, INC.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Vice President, Real Estate
WITH
A
COPY TO: Office Depot, Inc., Attention: Office of the General Counsel, Real
Estate (same address)
Section
12.2 Brokerage.
Landlord and Tenant acknowledge that the Broker(s), if any, whose name(s)
appear
in Section 1.1, has been retained in connection with the Property and this
Lease, and Landlord hereby agrees that Landlord shall pay to the Broker the
total brokerage commission due and payable to the Broker.
Section
12.3 Brokerage
Indemnities.
Except
as described in Section 12.2 hereof, Landlord and Tenant hereby represent
and
warrant, each to the other, that they have not disclosed this Lease or the
subject matter hereof to, and have not otherwise dealt with, any broker,
finder
or any other person, firm, corporation or other legal entity so as to create
any
legal right or claim of whatsoever kind or nature for a commission or similar
fee or compensation with respect to the Property or this Lease. Landlord
and
Tenant hereby indemnify each other against, and agree to defend and hold
each
other harmless from, any liability or claim (and all expenses, including
attorneys' fees, incurred in defending any such claim or in enforcing this
indemnity) for a real estate brokerage commission or similar fee or compensation
arising out of or in any way connected with any claimed dealings with the
indemnitor and relating to the Property or this Lease. The provisions of
this
Section shall survive the expiration or sooner termination of this
Lease.
Section
12.4 Relationship
of the Parties.
Nothing
contained herein shall be deemed or construed by the parties hereto, or by
any
third party, as creating the relationship of principal and agent, or of
partnership, or of joint venture between the parties hereto, it being understood
and agreed that neither the method of computation of rent nor any other
provision contained herein, nor any acts of the parties hereto, shall be
deemed
to create any relationship between the parties hereto other than the
relationship of landlord and tenant.
18
Section
12.5 Subordination,
Non-Disturbance and Attornment.
(a) On
or
before, and as a condition of, the Delivery Date, Landlord covenants to obtain
from any lender of Landlord’s whose loan is secured by or otherwise encumbers
encumbers the Property and each lessor of Landlord’s whose interest in the
Property is paramount to Landlord’s interest (“Master Lessor”) on the Effective
Date, or at any time prior to the recordation of the Memorandum of Lease
specified in Section 12.9, and deliver to Tenant an executed non-disturbance
agreement (“SNDA”) assuring Tenant that, notwithstanding any default by Landlord
to the lender or Master Lessor or any foreclosure or deed in lieu thereof
(or
Master Lessor’s termination proceedings), Tenant’s rights under this Lease shall
continue in full force and effect and its possession of the Property shall
remain undisturbed (including, without limitation, permission for insurance
proceeds and eminent domain awards to be applied as required hereunder),
except
in accordance with the provisions of this Lease and such lender assumes the
Landlord’s obligations under this Lease, so long as Tenant is not in default
hereunder so as to permit the termination of this Lease. Such agreement(s)
shall
be substantially in form and content as EXHIBIT
I
attached
hereto or, if applicable, the standard form of such agreement used by Tenant
and
such lender or Master Lessor in prior transactions; provided, however, that
if
no prior form exists and Tenant’s standard form is not consistent with such
Master Lessor’s or lender’s then-accepted standard SNDA terms, then Tenant and
such lender or Master Lessor shall negotiate an alternate agreement. This
provision shall only apply to any liens, security interests, encumbrances,
leases or other agreements created by, through or under Landlord and shall
expressly exclude any of the foregoing created or accepted by or through
Tenant.
(b) Tenant
shall, upon Landlord's request, subordinate this Lease in the future to any
first lien placed by Landlord upon the Property with an Institutional Mortgagee,
provided that such lender executes and delivers to Tenant a nondisturbance
agreement providing that this Lease shall not terminate and such lender assumes
the Landlord’s obligations under this Lease, so long as Tenant is not in default
under this Lease, as a result of the foreclosure of such lien, or conveyance
in
lieu thereof, and Tenant's rights under this Lease shall continue in full
force
and effect and its possession shall be undisturbed, except in accordance
with
the provisions of this Lease. Tenant will, upon request of the lien holder,
be a
party to such an agreement, and will agree that, if such lien holder succeeds
to
the interest of Landlord, Tenant will attorn to said lien holder (or successor
in interest of the lien holder) and recognize said lien holder (or successor)
as
its landlord under the terms of this Lease. Such agreement shall be
substantially in form and content as EXHIBIT
I
attached
hereto or, if applicable, the standard form of such agreement used by Tenant
and
such lender in prior transactions; provided, provided, however, that if no
prior
form exists and Tenant’s standard form is not consistent with Landlord’s
lender’s then-accepted standard SNDA terms, then Tenant and Landlord’s lender
shall negotiate an alternate agreement reasonably acceptable to such applicable
parties.
Section
12.6 Estoppel
Certificates.
Landlord and Tenant agree at any time and from time to time, upon not less
than
thirty (30) days' prior written request by either of them to the other, to
execute, acknowledge and deliver to the requesting party a statement in writing
certifying that this Lease is unmodified and in full force and effect (or,
if
there have been modifications, that the same is in full force and effect
as
modified, and stating the modifications), and the date to which the rental
and
other charges have been paid in advance, if any, and whether or not any
violations are in existence as of the date of said statement, it being intended
that any such statement delivered pursuant to this Section 12.6 may be relied
upon by any prospective purchaser of the fee, or leasehold, or mortgagee
or
assignee of any mortgage upon the fee or leasehold interest in the Property,
or
by any assignee of Tenant.
Section
12.7 Applicable
Law and Construction.
This
Lease shall be governed by and construed in accordance with the laws of the
state in which the Property is located and, if any provisions of this Lease
shall to any extent be invalid, the remainder of this Lease shall not be
affected thereby. There are no oral or written agreements between Landlord
and
Tenant affecting this Lease. This Lease may be amended only by instruments
in
writing executed by Landlord and Tenant. The titles of the several Articles
and
Sections contained herein are for convenience only and shall not be considered
in construing this Lease. Unless repugnant to the context, the words “Landlord”
and “Tenant” appearing in this Lease shall be construed to mean those named
above and their respective heirs, personal representatives, administrators,
successors and assigns, and those claiming through or under them,
respectively.
19
Section
12.8 Binding
Effect of Lease.
The
covenants, agreements and obligations herein contained, except as herein
otherwise specifically provided, shall extend to, bind and inure to the benefit
of the parties hereto and their respective heirs, personal representatives,
administrators, successors and assigns.
Section
12.9 Memorandum
of Lease.
This
Lease shall not be recorded. However, a memorandum of this Lease in the form
attached hereto as EXHIBIT
J
shall be
executed, in recordable form, by both parties concurrently herewith and recorded
by Tenant, at Tenant's expense, with the official charged with recordation
duties for the county in which the Property is located, with directions that
it
be returned to Tenant.
Section
12.10 Effect
of Unavoidable Delays. If
either
party to this Lease, as the result of any (i) strikes, lockouts or labor
disputes; (ii) acts of God or extremely adverse weather conditions for the
immediate area; (iii) civil commotion or terrorism; or (iv) condemnation,
fire
or other casualty (any of the items referenced in (i) through (iv) above
defined
as Unavoidable Delay”), fails punctually to perform any obligation on its part
to be performed under this Lease, and such party notifies the other in writing
within ten (10) days of the commencement of the Unavoidable Delay, describing
in
detail the nature of such Unavoidable Delay and estimated period of time
within
which to cure, then such failure shall be excused and not be a breach of
this
Lease by the party in question, but only for the period and to the extent
occasioned by such event and written notice. If any right or option of either
party to take any action under or with respect to this Lease is conditioned
upon
the same being exercised within any prescribed period of time or at or before
a
named date, then such prescribed period of time and such named date shall
be
deemed to be extended or delayed, as the case may be, for a period equal
to the
period of the delay occasioned by any Unavoidable Delay. Notwithstanding
anything to the contrary in this Lease, under no circumstances will an
Unavoidable Delay as described herein extend the time for performance of
any
obligation by more than 90 days.
Section
12.11 Waiver
of Claims and 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 Property or any portions thereof or any
personal property thereon; provided, however, that failure to obtain such
endorsements shall not affect the release hereinabove given.
Section
12.12 No
Construction Against Preparer.
This
Lease has been prepared by Tenant and its professional advisors and reviewed
by
Landlord and its professional advisors. Landlord, Tenant and their separate
advisors believe that this Lease is the product of their joint efforts, that
it
expresses their agreement, and that it should not be interpreted in favor
of
either Landlord or Tenant or against either Landlord or Tenant merely because
of
their efforts in its preparation.
Section
12.13 Number
and Gender.
The
terms “Landlord” and “Tenant,” wherever used herein, shall be applicable to one
or more persons, as the case may be, and the singular shall include the plural
and the neuter shall include the masculine and feminine and, if there be
more
than one, the obligations hereof shall be joint and several.
20
Section
12.14 Waiver
of Landlord's Lien.
Landlord hereby waives any statutory liens and any rights of distress with
respect to the personal property (trade fixtures, equipment and merchandise)
of
Tenant from time to time located on the Property (“Tenant's Property”). This
Lease does not grant a contractual lien or any other security interest to
Landlord or in favor of Landlord with respect to Tenant's Property. Respecting
any lender of Tenant having a security interest in Tenant's Property (“Tenant's
Lender”), Landlord agrees as follows: (i) to provide Tenant's Lender, upon
written request of Tenant (accompanied by the name and address of Tenant's
Lender), with a copy of any default notice(s) given to Tenant under this
Lease,
and (ii) to allow Tenant's Lender, prior to any termination of this Lease
or
repossession of Property by Landlord, the same period of time, after its
receipt
of such copy of default notice, to cure such default as is allowed Tenant
under
this Lease, and (iii) to permit Tenant's Lender to go upon the Property for
the
purpose of removing Tenant's Property anytime within twenty (20) days after
the
effective date of any termination of this Lease or any repossession of the
Property by Landlord (with Landlord having given Tenant's Lender prior written
notice of such date of termination or repossession). Landlord further agrees
to
execute and deliver such instruments reasonably requested by Tenant's Lender
from time to time to evidence or effect the aforesaid waiver and agreements
of
Landlord.
Section
12.15 No
Express or Implied Covenant of Continuous Operation.
Notwithstanding anything contained or set forth in this Lease to the contrary,
nothing set forth in this Lease shall be construed, in any manner whatsoever,
as
an implied covenant of continuous operation on the part of Tenant, and Landlord
specifically acknowledges that there is no covenant of continuous operation
on
the part of Tenant, express or implied. In the event that Tenant elects to
cease
its business operations at the Premises, such cessation shall not be deemed
to
be an Event of Default hereunder, nor shall such cessation relieve Tenant
of any
of its liabilities or obligations under and pursuant to this Lease.
Section
12.16 Exterior
and Interior Signage.
(a)
Tenant
shall have the exclusive right to locate an identification sign on any pylon
or
monument sign located on or around the Property, whether existing as of the
Effective Date or constructed at any time during the Lease Term. Tenant shall
be
entitled to install, at its election, monument and pylon signs on the Property
in the maximum size permitted by code, as well as identification signage
on the
façade of the Premises, and Tenant shall obtain, at its cost, all permits
required for any pylon, monument or façade sign. Landlord acknowledges that the
design of Tenant’s signs shall be Tenant’s prototypical identification and/or
logo which may be revised or altered from time to time during the Lease Term
at
Tenant’s sole discretion.
(b) Subject
to the approval of the appropriate governmental agencies, Tenant shall be
permitted to illuminate its signs (and its panels on any pylon signs), from
dusk
to ▇▇▇▇ on a daily basis.
Section
12.17 Covenants.
All of
the covenants, conditions and restrictions contained in this Lease are for
the
benefit of the Property, its easements and appurtenances, and shall run with
and
in or to and pass with the Property, and are intended to be binding on any
and
all successor owners of the Property.
Section
12.18 Entire
Agreement.
This
Lease and the exhibits attached hereto and forming a part thereof, as if
fully
set forth herein, constitute all covenants, promises, agreements, warranties
or
representations, conditions and understandings between Landlord and Tenant
concerning the Property and there are no covenants, promises, conditions
or
understandings, either oral or written, between them, other than are herein
set
forth. Except as herein otherwise provided, no subsequent alteration, change
or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by them.
One or
more emails from one party to the other shall not constitute an amendment
to
this Lease unless expressly agreed to by Landlord and Tenant.
Section
12.19 Legal
Expenses.
In the
event that it shall become necessary for either Landlord or Tenant to employ
the
services of attorneys to enforce any of their respective rights under this
Lease
or to collect any sums due to them under this Lease or to remedy the breach
of
any covenant of this Lease on the part of the other to be kept or performed,
the
non-prevailing party (Tenant or Landlord as the case may be) shall pay to
the
prevailing party such reasonable fee as shall be charged by the prevailing
party's attorneys for such services at all trial and appellate levels and
post
judgment proceedings and such prevailing party shall also have and recover
from
the non-prevailing party (Landlord or Tenant as the case may be) all other
costs
and expenses of such suit and any appeal thereof or with respect to any post
judgment proceedings.
21
Section
12.20 Counterparts.
This
Lease may be executed and delivered in counterparts for the convenience of
the
parties.
Section
12.21 Investment
Tax Credits.
Landlord expressly waives and relinquishes in favor of Tenant any rights
to
claim the benefit of or to use any federal or state investment tax credits
that
are currently, or may become, available during the Lease Term as a result
of any
installation of any equipment, furniture or fixtures installed by Tenant
in or
on the Property whether or not such items become a part of the realty and
agrees
to execute and deliver to Tenant any election form required to evidence Tenant's
right to claim investment tax credits.
Section
12.22 Financial
Statements
and
Sales Reports.
(a) Upon
receipt of written request from Landlord, Tenant shall provide its audited
annual financial statements, prepared in accordance with generally accepted
accounting principles; provided, however, that such financial statements
are not
required to be delivered if at the time of Landlord’s request any securities of
Tenant are traded on a public stock exchange.
(b) With
respect only to the eighth (8th)
and
ninth (9th)
calendar years occurring during the Initial Term, as well as the third
(3rd)
and
fourth (4th)
calendar years occurring during any Extended Lease Term, Tenant shall, upon
receipt of written request from Landlord but no earlier than 60 days following
the end of each such calendar year, provide to Landlord a report of its gross
sales at the Property for each such calendar year. All sales reports provided
by
Tenant shall be confidential, and may not be disclosed except to the extent
permitted by Section 12.23 of this Lease.
Section
12.23 Confidentiality.
Landlord and Tenant agree that the terms of this Lease are confidential and
constitute proprietary information of the parties hereto. Disclosure of the
terms hereof could adversely affect the ability of a party to negotiate with
leases with third parties. Each of the parties hereto agrees that it and
its
representatives, partners, officers, directors, employees and attorneys,
shall
not disclose the terms and conditions of this Lease to any other person without
the prior written consent of the other party hereto except pursuant to an
order
of a court of competent jurisdiction; provided, however, that Landlord may
disclose the terms hereof to any lender now or hereafter having or proposing
to
have a lien on Landlord’s interest in the Property or any portion thereof, and
either party may disclose the terms hereof to its independent accountants
who
review its financial statements or prepare its tax returns, to its counsel,
bankers, investment bankers, governmental agencies or other persons to whom
disclosure is required as a matter of law or a requirement of diligent inquiry
imposed by law, and in any action which is brought to prevent the breach
or
continued breach of this Lease or to seek damages for any breach or alleged
breach.
Section
12.24 Waiver
of Trial by Jury.
Landlord and Tenant hereby waive trial by jury in any action, proceeding
or
counterclaim brought by either against the other, upon any matters whatsoever
arising out of or in any way connected with this Lease, Tenant's use or
occupancy of the Property, and/or any claim of injury or damage.
Section
12.25 Radon
Disclosure.
In
accordance with the requirements of Florida Statutes Section 404.056(8),
the
following notice is hereby given to Tenant:
RADON
GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks
to
persons who are exposed to it over time. Levels of radon that exceed federal
and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your County Public
Health
Unit.
22
ARTICLE
13
LEASEHOLD
MORTGAGES
Section
13.1 Leasehold
Mortgages. Tenant may at any time execute and deliver one or more mortgages
or deeds of trust (such mortgage or deed of trust being hereinafter called
a
"Leasehold Mortgage") of Tenant's leasehold estate and rights hereunder without
the consent of Landlord; provided, however, that Tenant shall be and remain
liable hereunder for the payment of all Fixed Rent and Additional Charges
and
for the performance of all the covenants and conditions of this Lease. If
either
Tenant or the mortgagee under any such Leasehold Mortgage shall send Landlord
a
notice informing Landlord of the existence of such Leasehold Mortgage and
the
address of the mortgagee thereunder for the service of notices, such mortgagee
shall be deemed to be a Leasehold Mortgagee as such term is used in this
Lease.
Landlord shall be under no obligation under this section to any mortgagee,
grantee or corporate trustee under a Leasehold Mortgage of whom Landlord
has not
received such notice.
Section
13.2 Event
of Default. If an Event of Default under this Lease shall occur, written
notice thereof shall be sent by Landlord to any Leasehold Mortgagee, and
Landlord shall take no action to terminate this Lease or to interfere with
the
occupancy, use or enjoyment of the Property, provided that:
(a) If
such
Event of Default shall be a default in the payment of any installment of
Fixed
Minimum Rent or Additional Rent, such Leasehold Mortgagee shall remedy such
Event of Default not later than ten (10) days after the giving of such notice;
or
(b) If
such
Event of Default shall be a default in observing or performing any other
covenant or condition to be observed or performed by Tenant hereunder, and
such
Event of Default can be remedied by such Leasehold Mortgagee without obtaining
possession of the Property, such Leasehold Mortgagee shall remedy such Event
of
Default not later than thirty (30) days after the giving of such notice,
provided that, in the case of an Event of Default which cannot with diligence
be
remedied, or the remedy of which cannot be commenced, within such period
of
thirty (30) days, such Leasehold Mortgagee shall have such additional period
as
may be necessary to remedy such Event of Default with diligence and continuity;
or
(c) If
such
Event of Default shall be a default which can only be remedied by such Leasehold
Mortgagee upon obtaining possession of the Property, such Leasehold Mortgagee
shall obtain such possession with diligence and continuity, through a receiver
or otherwise, and shall remedy such Event of Default within thirty (30) days
after obtaining such possession, provided that, in the case of an Event of
Default which cannot with diligence be remedied, or the remedy of which cannot
be commenced, within such period of thirty (30) days, such Leasehold Mortgagee
shall have an additional period as may be necessary to remedy such Event
of
Default with diligence and continuity.
Section
13.3 Exercise
of Remedies. If any Leasehold Mortgagee either becomes the owner of the
interest of Tenant hereunder upon the exercise of any remedy provided for
in the
Leasehold Mortgage, or shall enter into a new lease with Landlord as provided
in
Section 13.4 below, such Leasehold Mortgagee or such entity acceptable to
Landlord in Landlord’s sole discretion shall have the right to assign to any
person such interest or such new lease only with the prior consent of Landlord
as provided in Section 9.1 hereof.
23
Section
13.4 Termination
of Lease. If this Lease shall terminate for any reason or be rejected or
disaffirmed pursuant to bankruptcy law or other law affecting creditors'
rights,
any Leasehold Mortgagee or a person designated by such Leasehold Mortgagee
shall
have the right, exercisable by notice to Landlord, within twenty (20) days
after
the effective date of such termination, to enter into a new lease of the
Property with Landlord. The term of said new lease shall begin on the date
of
the termination of this Lease and shall continue for the remainder of the
Term
of this Lease. Such new lease shall otherwise contain the same terms and
conditions as those set forth herein, except for requirements which are no
longer applicable or have already been performed or which are personal to
any
prior tenant or, provided that such Leasehold Mortgagee shall have remedied
all
defaults on the part of Tenant hereunder which are susceptible of being remedied
by the payment of money, and provided further that such new lease shall require
the tenant thereunder promptly to commence, and expeditiously to continue,
to
remedy all other defaults on the part of Tenant hereunder to the extent
susceptible of being remedied. The provisions of this Section 13.4 shall
survive
the termination of this Lease and shall continue in full force and effect
thereafter to the same extent as if this Section 13.4 were a separate and
independent contract among Landlord, Tenant and each Leasehold Mortgagee.
From
the date on which any Leasehold Mortgagee shall serve upon Landlord the
aforesaid notice of the exercise of its right to a new lease, such Leasehold
Mortgage may use and enjoy the Property without hindrance by
Landlord.
Section
13.5 Limited
Liability. It is expressly understood and agreed by Landlord that a
Leasehold Mortgagee has the right to cure Tenant defaults under this Lease
but
shall not have an obligation to do so. No Leasehold Mortgagee shall become
personally liable for the performance or observation of any covenants or
conditions to be performed or observed by Tenant unless and until such Leasehold
Mortgagee becomes the owner of Tenant's interest hereunder upon the exercise
of
any remedy provided for in any Leasehold Mortgage or enters into a new lease
with Landlord pursuant to Section 13.4 above. Thereafter, such Leasehold
Mortgagee shall be liable for the performance and observance of such covenants
and conditions only for the period such Leasehold Mortgagee owns the Tenant’s
interest hereunder or is the tenant under any such new lease.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK]
24
IN
WITNESS WHEREOF,
the
parties have executed this Lease under seal the day and year first-above
written.
|
Witnesses
or Attest (as to Landlord):
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
|
LANDLORD:
OLP
_____________________, LLC,
a
Delaware limited liability company
By:
______________________________
Print
Name: _______________________
Print
Title: _________________________
Date:
____________________________
|
|
Witness
or Attest (as to Tenant)
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
|
TENANT:
OFFICE
DEPOT, INC.,
a
Delaware corporation
By:
______________________________
Print
Name: _______________________
Print
Title: _________________________
Date:
____________________________
By:
______________________________
Print
Name: _______________________
Print
Title: _________________________
Date:
____________________________
|
25
EXHIBIT
A
PROPERTY
LEGAL DESCRIPTION
▇-▇
▇▇▇▇▇▇▇
▇
▇▇▇▇
▇▇▇▇
▇-▇
EXHIBIT
C
[Reserved]
C-1
EXHIBIT
D
[Reserved]
E-1
EXHIBIT
E
[Reserved]
E-1
EXHIBIT
F
[Reserved]
F-1
EXHIBIT
G
[Reserved]
G-2
EXHIBIT
H
PERMITTED
EXCEPTIONS
H-1
EXHIBIT
I
Parcel
ID
#____________________
This
Instrument Prepared By and Upon
Recordation
Return to:
Office
Depot, Inc.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇/Real Estate-Legal
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-
OD#
THIS
SUBORDINATION, NON DISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement") executed
this ___ day of ________________, 2008, between ____________________
__________________ , a(n) _____________________________ ("Mortgagee") and
OFFICE
DEPOT, INC., a Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS,
OLP ___________________, LLC, a Delaware limited liability company ("Landlord")
and Tenant are parties to that certain lease (the "Lease") dated September
26,
2008 relating to certain property located at
_____________________________________________ (the "Property"), said Property
being described in EXHIBIT
A
attached
hereto and made a part hereof; and
WHEREAS,
Mortgagee has committed to make or has made a mortgage loan to Landlord secured
by a Mortgage dated of even date herewith ("Mortgage") covering the
Property;
NOW,
THEREFORE, it is mutually agreed as follows:
1. To
the
extent that Tenant's rights and entitlements under the Lease are not diminished
or otherwise affected, and except as provided in this Agreement, the Lease
is
and shall be subject and subordinate to the lien of the Mortgage and to all
renewals, modifications, consolidations, replacements and extensions of the
Mortgage.
2. In
the
event of a foreclosure of the Mortgage or should Mortgagee obtain title by
deed
in lieu thereof, or otherwise, Mortgagee, for itself, its successors or assigns
(which shall include any persons acquiring title by voluntary deed, assignment
or other disposition or transfer in lieu of foreclosure), agrees that Tenant
may
continue its occupancy of the Property in accordance with the terms and
provisions of the Lease, so long as Tenant is not in material default under
the
Lease beyond any applicable notice and cure period. Mortgagee agrees not
to name
Tenant as a party defendant in any foreclosure action.
3. Tenant
agrees to attorn to: (a) Mortgagee who succeeds to Landlord’s interest in the
Property; (b) a receiver appointed in an action or proceeding to foreclose
the
Mortgage or otherwise; or (c) to any party acquiring title to the Property
as a
result of foreclosure of the Mortgage or deed in lieu thereof. Tenant further
covenants and agrees to execute and deliver, upon request of Mortgagee, or
its
assigns, an appropriate agreement of attornment, in form and content reasonably
acceptable to Tenant and Mortgagee (but which shall not amend the terms of
the
Lease or otherwise diminish Tenant's rights thereunder) with any subsequent
titleholder of the Property.
4. So
long
as the Mortgage on the Property remains outstanding and unsatisfied, Tenant
will
use commercially reasonable efforts to deliver to Mortgagee a copy of all
notices of default given to Landlord by Tenant. At any time before the rights
of
Landlord shall have been forfeited or adversely affected because of any default
under the Lease as therein provided, Mortgagee shall have the right (but
not the
obligation) to cure such default within the same period of time as is allowed
Landlord under the Lease.
I-1
5. If
Mortgagee shall succeed to the interest of Landlord under the Lease, Mortgagee
shall be bound to Tenant under all the terms, covenants and conditions of
the
Lease, and Tenant shall, from and after Mortgagee's succession to the interest
of Landlord under the Lease, have the same remedies against Mortgagee for
the
breach of an agreement contained in the Lease that Tenant might have had
under
the Lease against Landlord if Mortgagee had not succeeded to the interest
of
Landlord; provided further, however, that Mortgagee shall not be:
(a) liable
for any warranty, act or omission of any prior landlord (including Landlord),
except those of a continuing nature; or
(b) subject
to any offsets or defense which Tenant might have against any prior landlord
(including Landlord), except (i) offsets specifically provided for in the
Lease,
or (ii) those which arose out of such Landlord's default under the Lease
and
accrued after Tenant has notified Mortgagee and given Mortgagee an opportunity
to cure as provided in Paragraph 4 above; or
(c) bound
by
any rent or Additional Charges which Tenant might have paid for more than
the
current month to any prior landlord (including Landlord); or
(d) bound
by
any amendment or modification of the Lease or any collateral agreement made
without Mortgagee's consent which would (i) reduce fixed minimum rent, or
(ii)
reduce any other monetary obligation of Tenant under the Lease.
6. Mortgagee
consents to the application and disposition of casualty proceeds and
condemnation awards in accordance with the Lease.
7. This
Agreement shall be binding upon and inure to the benefit of the heirs,
successors and assigns (which shall include any persons acquiring title by
voluntary deed, assignment or other disposition or transfer in lieu of
foreclosure) of the parties.
8. Any
notices under this Agreement may be delivered by hand or sent by commercial
delivery services or United States Postal Service express mail, in either
case
for overnight delivery with proof of service, or sent by certified mail,
return
receipt requested, to the following addresses:
|
To
Tenant:
|
Office
Depot, Inc.
|
|
|
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
Vice President, Real Estate
|
||
|
Copy
To: Office of the General Counsel, Real Estate
|
||
|
To
Mortgagee:
|
||
|
Attention:
|
||
The
notice shall be deemed to have been given on the date it was actually
received.
9. This
Agreement may be executed and delivered in counterparts for the convenience
of
the parties.
I-2
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated below their respective signatures.
Signed,
sealed and delivered
in
the
presence of:
|
Witnesses
or Attest (as to Mortgagee):
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
|
MORTGAGEE:
________________________________________
By:
______________________________
Print
Name: _______________________
Print
Title: _________________________
Date:
____________________________
|
|
STATE
OF [STATE]
|
)
|
||||
|
)
|
ss.:
|
||||
|
COUNTY
OF [County]
|
)
|
||||
|
The
foregoing instrument was acknowledged before me this [DAY (15th,
3rd)] day
of [MONTH] in the year [YEAR] by [Name of Officer or Agent]), as
[Title of
Officer or Agent] of [Name of Corporation] a [State of Place of
Incorporation] corporation, on behalf of the corporation. He/she
is
personally known to me or has produced [Type of Identification
Provided]
as identification.
|
|||||
|
NOTARY
SEAL
|
Notary:
|
||||
|
Print
Name:
|
|||||
|
Notary
Public, State of [State]
|
|||||
|
My
commission expires: [Enter COMMISSION EXPIRE
DATE]
|
|||||
I-3
|
Witnesses
or Attest (as to Tenant):
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
|
TENANT:
OFFICE
DEPOT, INC., a Delaware
corporation
By:
Print Name:
Print
Title:
Date:
|
STATE
OF
FLORIDA )
)
SS:
COUNTY
OF
PALM BEACH )
I
HEREBY
CERTIFY that on this day before me, an officer duly authorized in the state
and
county named above to take acknowledgments, personally appeared
_________________________________ as _________________________ of OFFICE
DEPOT,
INC., a Delaware corporation, to me known to be the person who signed the
foregoing instrument as such officer and he/she acknowledged that the execution
thereof was his/her free act and deed as such officer for the use and purposes
therein expressed and that the instrument is the act and deed of said
corporation.
WITNESS
my hand and official seal this ___ day of ___________________ ,
20___.
Notary
Public
State
of
Florida
My
Commission expires: _______________
I-4
EXHIBIT
J
Parcel
ID
#______________________
This
Instrument Prepared By and Upon
Recordation
return to:
OFFICE
DEPOT, INC.
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▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇/Real Estate-Legal
MEMORANDUM
OF LEASE
THIS
MEMORANDUM OF LEASE (“Memorandum”) made as of the _____ day of September, 2008,
by and between OFFICE DEPOT, INC., a Delaware corporation (“Tenant”), and OLP
____________________, LLC, a Delaware limited liability company
(“Landlord”).
WITNESSETH:
1. Property.
Landlord and Tenant have entered into a lease (“Lease”) dated
__________________, 2008, for certain real property (the “Property”) containing
a building comprising approximately _______ (_____) square feet. The Property
is
located in the County of ____________, City of ___________, State of
_____________, and is more particularly described on EXHIBIT
A
attached
hereto and made a part hereof.
2. Term
and
Renewal Options. The Lease has an initial term of ten (10) years, subject
to
extension (at Tenant's option) as provided therein for four (4) successive
additional periods of five (5) years each.
3. Incorporation
of Lease. This Memorandum is for informational purposes only and nothing
contained herein shall be deemed to in any way modify or otherwise affect
any of
the terms and conditions of the Lease, the terms of which are incorporated
herein by reference. This instrument is merely a memorandum of the Lease
and is
subject to all of the terms, provisions and conditions of the Lease. In the
event of any inconsistency between the terms of the Lease and this instrument,
the terms of the Lease shall prevail.
4. Binding
Effect. The rights and obligations set forth herein shall be binding upon
and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
J-1
IN
WITNESS WHEREOF,
the
parties have executed this Memorandum of Lease as of the day and year first
above written.
|
Witnesses
or Attest (as to Landlord):
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
|
LANDLORD:
OLP
______________________, LLC, a Delaware limited liability company
By:
______________________________
Print
Name: _______________________
Print
Title: _________________________
Date:
____________________________
|
|
STATE
OF
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)
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||||
|
)
|
ss.:
|
||||
|
COUNTY
OF
|
)
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The
foregoing instrument was acknowledged before me this _________
day of
________________, 2008 by ________________________________, as
________________________________, of OLP __________________, LLC,
a
Delaware limited liability company, on behalf of the company. He/she
is
personally known to me or has produced _______________________
as
identification.
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|||||
|
NOTARY
SEAL
|
Notary:
|
||||
|
Print
Name:
|
|||||
|
Notary
Public, State of
|
|||||
|
My
commission expires:
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J-2
|
Witness
or Attest (as to Tenant)
Sign:
_________________________________
Print
Name:
Sign:
_________________________________
Print
Name:
|
TENANT:
OFFICE
DEPOT, INC.,
a
Delaware corporation
By:
______________________________
Print
Name: _______________________
Print
Title: _________________________
Date:
____________________________
|
STATE
OF
FLORIDA
)
)
SS:
COUNTY
OF
PALM BEACH )
I
HEREBY
CERTIFY that on this day before me, an officer duly authorized in the state
and
county named above to take acknowledgments, personally appeared
_________________________________ as _________________________ of OFFICE
DEPOT,
INC., a Delaware corporation, to me known to be the person who signed the
foregoing instrument as such officer and he/she acknowledged that the execution
thereof was his/her free act and deed as such officer for the use and purposes
therein expressed and that the instrument is the act and deed of said
corporation.
WITNESS
my hand and official seal this ____ day of ________________, 2008.
Notary
Public
State
of
Florida
My
Commission expires: _______________
J-3
EXHIBIT
K
RECIPROCAL
EASEMENT AGREEMENT
K-1
EXHIBIT
L
RELATED
LEASES
1. Lease
dated as of the dated hereof between OLP Pensacola LLC, Delaware limited
liability company, and Office Depot, Inc., a Delaware corporation, with respect
to Store # 202 located in Pensacola, Florida.
2. Lease
dated as of the dated hereof between OLP Miami Springs LLC, Delaware limited
liability company, and Office Depot, Inc., a Delaware corporation, with respect
to Store # 213 located in Miami Springs, Florida.
3. Lease
dated as of the dated hereof between OLP Sunland Park Drive LLC, Delaware
limited liability company, and Office Depot of Texas, L.P., a Delaware limited
partnership, with respect to Store # 223 located in El Paso, Texas.
4. Lease
dated as of the dated hereof between OLP Chicago LLC, Delaware limited liability
company, and Office Depot, Inc., a Delaware corporation, with respect to
Store #
225 located in Chicago, Illinois.
5. Lease
dated as of the dated hereof between OLP Kennesaw LLC, Delaware limited
liability company, and Office Depot, Inc., a Delaware corporation, with respect
to Store # 294 located in Kennesaw, Georgia.
6. Lease
dated as of the dated hereof between ▇▇▇ ▇▇▇▇ LLC, Delaware limited liability
company, and Office Depot, Inc., a Delaware corporation, with respect to
Store #
317 located in Cary, North Carolina.
7. Lease
dated as of the dated hereof between ▇▇▇ ▇▇▇▇▇▇ LLC, Delaware limited liability
company, and Office Depot, Inc., a Delaware corporation, with respect to
Store #
920 located in Eugene, Oregon.
8. Lease
dated as of the dated hereof between OLP Palo Alto LLC, Delaware limited
liability company, and Office Depot, Inc., a Delaware corporation, with respect
to Store # 978 located in Palo Alto, California.
L-1