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EXHIBIT 10.1
BUILD-TO-SUIT LEASE AGREEMENT
Pratezk Industrial Park, Salt Lake City, Utah
THIS LEASE AGREEMENT is made this 20 day of March , 1996,
between SCI DEVELOPMENT SERVICES INCORPORATED ("Landlord"), and the Tenant
named below.
TENANT: Weider Nutrition Group Inc., a Utah corporation
TENANT'S REPRESENTATIVE, c/o ▇▇▇ ▇▇▇▇▇▇ Company
ADDRESS, AND PHONE NO.: Attention: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(Telephone No. 801/▇▇▇-▇▇▇▇)
(Fax No. 801/▇▇▇-▇▇▇▇)
PREMISES: The land described in Exhibit A attached hereto, the Initial Improvements and any additions
to and replacements thereof. The Premises do not include any air or open space rights above
the Premises or subsurface rights below the Premises but do include any and all common areas
attendant to such land.
INITIAL IMPROVEMENTS: The Building Shell (as described in the Construction Addendum) and any other improvements to
be constructed by Landlord pursuant to the Construction Addendum.
LEASE TERM: Beginning on the Commencement Date and ending on the last day of the 192nd full calendar
month thereafter.
COMMENCEMENT DATE: As determined by the Construction Addendum.
MONTHLY BASE RENT: For each month beginning with the month in which the Commencement Date falls and ending on
the last day of the 60th full calendar month thereafter: $154,541.00.
For each month beginning with the 61st full calendar month and ending on the last day of the
120th full calendar month: $172,514.00.
For each month beginning with the 121st full calendar month and ending on the last day of
the 192nd full calendar month: $192,578.00.
SECURITY DEPOSIT: None
BROKER: Consolidated Realty Group. Landlord shall be responsible for payment of Broker's
commission.
ADDENDA: Two Renewal Options at Market, Right of First Offer, Right to Share Sale Proceeds and
Construction Addendum
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1. GRANTING CLAUSE. In consideration of the obligation of Tenant
to pay rent as herein provided and in consideration of the other terms,
covenants, and conditions hereof, Landlord leases to Tenant, and Tenant takes
from Landlord, the Premises, to have and to hold for the Lease Term, subject to
the terms, covenants and conditions of this Lease.
2. ACCEPTANCE OF PREMISES. Except as specified in this Lease or
expressly agree to in writing, and excluding those items as to which Tenant
shall object in writing on or before the Commencement Date, Tenant shall accept
the Premises in its condition as of the Commencement Date, subject to punchlist
items and all provisions of the Construction Addendum, all applicable covenants
or restrictions of record, applicable zoning and other laws regulating the use
of the Premises. Tenant acknowledges that Landlord has made no representation
or warranty as to the suitability of the Premises for the conduct of Tenant's
business or, except as otherwise expressly agreed to in writing, the physical
condition of the Premises. Except as provided in the Construction Addendum or
otherwise expressly agreed to in writing, the taking of possession of the
Premises and failure to object to any condition of the Premises in writing on
or before the Commencement Date, shall be conclusive evidence that Tenant
accepts the Premises and that the Premises were in good condition as of the
Commencement Date. Except as set forth in the Construction Addendum attached
hereto, the risk of any defect or deficiency in the Premises, or any portion
thereof, of any nature, whether patent or latent, as between Landlord and
Tenant, is to be borne by Tenant.
3. USE. The Premises shall be used only for the purpose of
receiving, storing, shipping, light manufacturing, and selling (but limited to
wholesale sales) products, materials and merchandise made and/or distributed by
Tenant and for such other lawful purposes as may be incidental thereto. Tenant
shall not conduct or give notice of any auction, liquidation, or going out of
business sale on the Premises. Tenant shall not commit waste, overload the
floors or structure of the Premises, or subject the Premises to any use that
would damage the Premises, reasonable wear and tear excepted. Tenant shall not
knowingly permit any objectionable or unpleasant odors, smoke, dust, gas,
noise, or vibrations to emanate from the Premises, or take any other action
that would constitute a nuisance. Tenant shall pay the amount of any increase
in the cost of any insurance carried by Landlord for the Premises that is
caused by and reasonably attributable to Tenant's use of the Premises. Tenant
shall comply with any restrictive covenants applicable to the Premises and any
reasonable rules and regulations with respect to the Premises that are not
inconsistent with this Lease promulgated by Landlord after reasonable notice to
Tenant. Except as set forth in the Specifications (defined in the Construction
Addendum), outside storage, including without limitation, storage of trucks and
other vehicles, is prohibited without Landlord's prior written consent (which
shall not be unreasonably withheld); provided, however, Tenant may temporarily
park trucks on the Premises as long as it is incidental to Tenant's business.
Any occupation of the Premises by Tenant before the Commencement Date shall be
subject to all obligations of Tenant under this Lease.
4. COMPLIANCE WITH LAWS. Tenant, at its sole expense, shall
comply with: (i) all municipal, county, state and federal statutes, laws,
ordinances, and regulations applicable to the Premises or Tenant's use thereof
(collectively, "Legal Requirements"); and (ii) to the extent consistent with
Tenant's use of the Premises, all material terms of any insurance policy
covering or applicable to the Premises, all material requirements of the issuer
of any such policy, and all material orders, rules, regulations, and any other
requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) binding upon Landlord or Tenant or the Premises
or any use or condition of the Premises (collectively, "Insurance
Requirements"). An order or directive by a building official or other
appropriate authority is not a prerequisite for Tenant's obligations under this
Paragraph 4. Tenant, at its sole expense, shall obtain and maintain all
permits, licenses, and other governmental approvals in a form transferable to
Landlord (to the extent permitted by law) required for the use, occupancy or
possession of the Premises by Tenant and, except as otherwise provided in the
Construction Addendum, any permits for any construction in or to the Premises
which is performed by or on behalf of Tenant. At Tenant's request, Landlord
shall, without charge, sign applications for all permits and other instruments
that may be necessary or appropriate for the use of the Premises as
contemplated herein.
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5. BASE RENT. Tenant shall pay Base Rent in the amount set forth
above. Except as set forth in Section 5(a) of the Construction Addendum, the
first month's Base Rent shall be due and payable on the Commencement Date, and
Tenant promises to pay to Landlord in advance, without demand, deduction or
set-off, monthly installments of Base Rent on or before the first day of each
calendar month succeeding the Commencement Date. Payments of Base Rent for any
fractional calendar month shall be prorated. All payments required to be made
by Tenant to Landlord hereunder shall be payable at such address as Landlord
may specify from time to time by fifteen (15) business day advance written
notice delivered in accordance herewith. The obligation of Tenant to pay Base
Rent and other sums to Landlord and the obligations of Landlord under this
Lease are independent obligations. Tenant shall have no right at any time to
▇▇▇▇▇, reduce, or set-off any rent due hereunder except where expressly
provided in this Lease. Tenant waives and releases all statutory liens and
offset rights as to rent. If Tenant is delinquent in any monthly installment
of Base Rent for more than 7 days, Tenant shall pay to Landlord on demand a
late charge equal to 5 percent of such delinquent sum. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
6. INTENTIONALLY OMITTED.
7. UTILITIES. Tenant at its sole cost and expense shall make
arrangements to obtain, and shall pay directly to the utility providers all
service charges for, water, gas, electricity, heat, light, power, telephone,
sewer, sprinkler services, refuse and trash collection, and other utilities and
services used on the Premises in connection with Tenant's use and occupancy of
the Premises. Tenant shall pay all maintenance charges for utilities, and any
storm sewer charges or other similar charges for utilities imposed by any
governmental entity or utility provider, together with any taxes, penalties,
surcharges or the like pertaining to the Premises in connection with the
utilities specified in the Specifications or in connection with Tenant's use
and occupancy of the Premises. No interruption or failure of utilities shall
result in the termination of this Lease or the abatement of rent.
8. TAXES. Tenant shall pay all taxes, assessments and charges of
any kind and nature that accrue or are assessed against the Premises during the
Lease Term and all taxes and charges on account of Tenant's use, occupancy,
operation of and interest in the Premises, including, but not limited to, all
personal property, inventory, sales and use taxes, and all occupation and
license fees issued or charged against the Premises or the contents thereof on
account of Tenant's use or occupancy thereof. All capital levies or other
taxes assessed or imposed on Landlord upon the rents payable to Landlord under
this Lease and any franchise tax, any excise, transaction, sales or privilege
tax, assessment, levy or charge measured by or based, in whole or in part, upon
such rents from the Premises or any portion thereof shall be paid by Tenant to
Landlord, but Tenant shall not be liable for any net income taxes imposed on
Landlord unless such net income taxes are in substitution for any tax or
assessment payable hereunder. If any such tax or excise is levied or assessed
directly against Tenant, then Tenant shall be responsible for and shall pay the
same at such times and in such manner as the taxing authority shall require.
Upon written request from Landlord, Tenant shall promptly furnish Landlord with
satisfactory evidence that all such taxes, assessments and charges have been
paid. Tenant may elect not to pay any taxes against the Premises if it is
contesting such taxes in good faith provided such contest suspends the
obligation to pay such taxes and, upon request therefor by Landlord in writing,
Tenant deposits with Landlord cash or other security satisfactory to Landlord
in an amount sufficient to pay such taxes plus all interest and penalties
thereon as reasonably determined by Landlord. Tenant shall also be responsible
for and pay any charges or assessments attributable to the Property and the use
and occupation thereof, including, any charges or assessments imposed under any
covenants, conditions and restrictions or any development agreements entered
into pursuant thereto.
9. INSURANCE. Tenant, at its expense, shall maintain during the
Lease Term: "all-risk" property insurance on a replacement cost basis for the
full insurable value of the Premises; worker's compensation insurance with no
less than the minimum limits required by law; employer's liability insurance
with such limits as required by law; commercial liability insurance, with a
minimum limit of $5,000,000 per occurrence and a total minimum combined general
liability and umbrella limit of $20,000,000 for property damage, personal
injuries, or deaths of persons occurring in or about the Premises; and business
interruption insurance covering the Base Rent for a period
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of 12 months. Landlord may from time to time require reasonable increases in
any such limits provided such increases are equivalent to those generally paid
for similarly utilized properties in the area. The limits of insurance shall
not limit the liability of the Tenant to restore the Premises as provided
herein. The property insurance shall name Landlord and, if requested by
Landlord, the Mortgagee (as defined herein), as loss payees as their interests
may appear, and the proceeds of which shall be held and disbursed in accordance
with the provisions herein. The commercial liability policies shall name
Landlord as an additional insured, insure on an occurrence and not a
claims-made basis, be issued by insurance companies which are reasonably
acceptable to Landlord, not be cancelable unless 30 days prior written notice
shall have been given to Landlord, contain a hostile file endorsement and a
contractual liability endorsement and provide primary coverage to Landlord (any
policy issued to Landlord providing duplicate or similar coverage shall be
deemed excess over Tenant's policies). Such policies or certificates thereof
shall be delivered to Landlord by Tenant upon commencement of the Lease Term
and upon each renewal of said insurance.
Landlord, Mortgagee and their agents and employees shall not
be liable for, and Tenant hereby waives all claims against such parties for,
damage to property, or interruption to business and losses occasioned thereby,
sustained by Tenant or any person claiming through Tenant resulting from any
accident or occurrence in or upon the Premises from any cause whatsoever,
including without limitation, damage caused in whole or in part, directly or
indirectly, by the negligence of Landlord, Mortgagee or their respective agents
or employees. Tenant shall look exclusively to the proceeds of its insurance
to recover for any such damage. Any policy of property insurance shall, if
obtainable, contain a waiver of the insurer's rights of subrogation.
10. MAINTENANCE. Except to the extent specified below, Tenant, at
its sole cost and expense, shall maintain all portions of the Premises,
including without limitation, interior and exterior walls, foundation, roof,
parking and landscape areas, heating, ventilation and air conditioning systems,
lighting, electrical systems, plumbing lines and equipment and other mechanical
and building systems, in good repair and condition and in compliance with Legal
Requirements and Insurance Requirements and shall make all necessary
modifications, replacements and renewals to the Premises arising from any
cause, including without limitation those required by Legal Requirements.
Landlord shall have no obligation to repair, maintain, or replace the Premises
or any portion thereof, whether structural or nonstructural, foreseen or
unforeseen, all of which are intended to be the obligations of Tenant under
this Paragraph 10. Tenant waives to the extent permitted by applicable law the
benefit of any law now or hereafter in effect that would otherwise afford
Tenant the right to make repairs or replacements at Landlord's expense or to
terminate this Lease on account of the failure of Landlord to make a repair or
replacement. Notwithstanding the foregoing, Landlord shall be responsible at
its sole cost and expense for (i) repairs and/or replacements of the roof or
any structural portions of the Premises except as provided in Paragraph 12
below and (ii) any repairs covered by the one-year warranty from Landlord set
forth in the Construction Addendum provided any such replacements or repairs
are necessitated by normal wear and tear or defects in the structural
components and supports, including structural columns supporting the roofing
system, exterior load-bearing walls, slab and roofing system, and not by any
specific acts or damage; and Tenant shall not be obligated to reimburse
Landlord for the cost of such work.
All repairs, modifications and replacements made by Tenant shall be
equal in quality and class to the original work and shall be performed in
compliance with all applicable warranties in effect with respect to the
Premises and, with respect to modifications and replacements, the requirements
for Tenant-Made Alterations. Tenant shall, at its sole cost and expense, enter
into regularly scheduled preventive maintenance and service contracts covering
the heating, ventilation and air conditioning systems and other mechanical and
building systems in form and substance reasonably acceptable to Landlord with
contractors approved by Landlord. If Tenant does not so execute and deliver
the maintenance contracts, then Landlord shall have the right to contract for
said service without notice to Tenant, and Tenant shall upon demand reimburse
Landlord for the full cost thereof. Tenant shall have the Premises exterior
repainted as reasonably necessary. Landlord may, but shall not be obligated
to, enter the Premises and perform any obligation of Tenant under this
Paragraph 10 or any other provision of this Lease that Tenant has failed to
perform after 10 business days' prior written notice to Tenant, except in the
case of an emergency, when no notice shall be required. The cost of Landlord's
performance together with interest as provided in this Lease, shall be due and
payable as additional rental on the next following due date for Base Rent.
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11. TENANT-MADE ALTERATIONS. Any alterations, additions, or
improvements made by or on behalf of Tenant to the Premises ("Tenant-Made
Alterations") shall be subject to the following requirements. Tenant may not
make any Tenant-Made Alterations without Landlord's prior written consent,
which may be withheld in Landlord's sole and absolute discretion, if the
Tenant-Made Alterations ▇▇▇▇▇▇ or otherwise compromise the roof membrane or
roof system, or ▇▇▇▇▇▇, cut or drill the floor, or otherwise affect the
structural components of the Premises or the integrity or operation of any
building or mechanical systems. In addition, Tenant shall not make any other
Tenant-Made Alterations costing in excess of $50,000 in each instance or
$250,000 in the aggregate during any three (3) year period or $500,000 in the
aggregate during the term of the Lease without Landlord's prior written
consent, which shall not be unreasonably withheld. Tenant shall not do, or
permit others under its control to do, any work on the Premises related to
Tenant-Made Alterations unless Tenant shall have first procured and paid, or
caused to be procured and paid, all requisite municipal and other governmental
permits and authorizations. All Tenant-Made Alterations shall comply with
Insurance Requirements and with Legal Requirements and shall be constructed in
a good and workmanlike manner using good grades of materials. All plans and
specifications and contracts for any Tenant-Made Alterations shall be submitted
to Landlord for its approval. Landlord may monitor construction of the
Tenant-Made Alterations, and Tenant shall reimburse Landlord for its reasonable
costs (excluding overhead) in reviewing plans and documents and in monitoring
construction. Landlord's right to review plans and specifications and monitor
construction shall be solely for its own benefit, and Landlord shall have no
duty to see that such plans and specifications or construction comply with
Legal Requirements or Insurance Requirements. Tenant shall furnish to Landlord
satisfactory certificates of insurance from an insurance company satisfactory
to Landlord evidencing worker's compensation and insurance coverage in amounts
satisfactory to Landlord and protecting Landlord against public liability and
property damage to any person or property arising during construction of the
Tenant-Made Alterations. As and to the extent reasonably practical and
requested by Landlord, Tenant shall provide Landlord with the identities and
mailing addresses of all persons performing work or supplying materials, prior
to beginning such construction. To the extent reasonably requested by
Landlord, Tenant shall furnish to Landlord payment bonds or such other similar
security satisfactory to Landlord to ensure payment for the completion of all
work free and clear of liens. Landlord may post or give notices of
non-responsibility in compliance with applicable law. Upon completion of any
Tenant-Made Alterations, Tenant shall deliver to Landlord sworn statements
setting forth the names of all contractors and subcontractors who did work on
the Tenant-Made Alterations and final lien waivers from all such contractors
and subcontractors. Tenant at its expense shall provide to Landlord upon
completion complete as-built drawings of the Tenant-Made Alterations. Landlord
may require as a condition to granting any consent to the making of any
Tenant-Made Alterations that the cost that Landlord estimates will be necessary
to restore any Initial Improvements that are to be damaged or altered during
the construction of Tenant-Made Alterations be paid to Landlord as security for
Tenant's obligation to restore the Initial Improvements, which payment shall be
held either in an independent escrow account or by Landlord, as Tenant may
elect. If the payment is held in an independent escrow account, Tenant shall
pay for the cost of such escrow account; and if the payment is held by
Landlord, interest on such amount shall accrue at the rate of 6% per annum and
be added to the payment held by Landlord.
Upon termination of the Lease Term or any extension thereof
herein provided for, by lapse of time or otherwise, unless otherwise directed
by Landlord, Tenant shall remove all Tenant-Made Alterations unless Landlord
has agreed prior thereto that Tenant does not need to remove any such
Tenant-Made Alteration. Prior to installing any Tenant-Made Alteration, Tenant
may request that Landlord agree that Tenant does not have to remove such
Tenant-Made Alteration, and Landlord shall not unreasonably withhold its
agreement provided the Tenant-Made Alteration does not adversely affect the
structure or value of the Premises. All Tenant-Made Alterations, as
constituted at the time, which Landlord directs not to be removed shall upon
such termination be and become the property of Landlord without requirement of
the payment of any compensation or consideration. Tenant-Made Alterations do
not include movable partitions and Tenant's trade fixtures that were installed
and paid for by Tenant and that are removable without material damage to the
Premises, even though affixed in such manner as, under the law might be
considered to be fixtures and part of the real estate. Tenant may, before
termination of the Lease Term, remove all such moveable partitions and trade
fixtures. In all cases, Tenant shall repair any
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damage to the Premises occasioned by the removal of Tenant-Made Alterations and
its movable partitions and trade fixtures.
12. RESTORATION. If the Premises are damaged during the Lease
Term by any cause whatsoever, Tenant shall, at Tenant's expense, restore the
Premises as soon as reasonably possible, and this Lease shall continue in full
force and effect. Restore or restoration as used in this Paragraph 12 means
the restoration, repair, replacement or rebuilding of the Premises as
applicable portion thereof to its value and condition immediately before the
damage. If any such damage occurs during the last year of the Lease Term or
the last two years of any extension term, and the period of time to restore the
Premises would exceed 90 days, then Tenant may elect to terminate this Lease
upon 30 days notice to Landlord after such damage. Such termination shall not
be effective before Tenant shall have delivered to Landlord, free of any
claims, an amount equal to the estimated cost to repair such damage. Any
insurance proceeds received or to be received by Landlord or any Mortgagee
pursuant to Paragraph 9 shall be made available to Tenant to effect such
restoration pursuant to the provisions below. Base Rent and all other rent
shall continue unabated after any damage and during restoration.
Any restorations involving an estimated cost exceeding $50,000
shall be conducted under the general supervision of an architect or engineer
selected by Tenant licensed as such in the State where the Premises are located
and reasonably acceptable to Landlord and any Mortgagee, and no such work shall
be undertaken until preliminary plans and outline specifications and budget
estimates therefor, prepared and approved in writing by such architect or
engineer, stating that such budget estimates constitute reasonable estimates of
the cost of such work, have been approved in writing by Landlord and any
Mortgagee and Tenant shall have furnished to Landlord or Mortgagee cash, or
other security reasonably satisfactory to Landlord and Mortgagee, in each case
in an amount equal to the estimated cost of such restoration (collectively such
cash and proceeds called "Restoration Deposit"). Restorations shall be
prosecuted with reasonable diligence and in a good and workmanlike manner and
in compliance with applicable Legal Requirements. The cost of restoration
shall be paid in cash, an irrevocable letter of credit or other security or
cash equivalent reasonably satisfactory to Landlord, so that the Premises shall
at all times be kept free of liens for labor and materials supplied or claimed
to have been supplied and not paid for when due and payable. Tenant or its
general contractor shall maintain, at all times during any restoration, for the
mutual benefit of Landlord, Tenant and Mortgagee, with limits of not less than
those required to be carried pursuant to Paragraph 9 the following insurance,
which may be effected by endorsement on the insurance carried pursuant to
Paragraph 9: worker's compensation insurance covering all persons employed in
connection with the work and with respect to which persons death or bodily
injury claims could be asserted against Tenant, Landlord or Mortgagee; general
liability and property damage and builder's risk insurance; and such other
insurance reasonably required by Landlord.
From time to time as any restoration progresses, disbursement
of funds from the Restoration Deposit shall be made periodically as portions of
the work are completed (but no more frequently than monthly) in such manner and
subject to such requirements as the Landlord or Mortgagee shall reasonably
impose in order to insure that the work shall be completed in a good and
workmanlike manner and free of any lien against the Property. The balance of
the Restoration Deposit shall never be less than an amount sufficient to cover
the cost necessary to complete the restoration plus retainage in amount
sufficient to protect the Premises from subcontractor's claims in accordance
with applicable law. After the completion of the work the balance of the
Restoration Deposit shall be disbursed to Tenant upon receipt by Landlord or
Mortgagee of a certificate from the general contractor performing the work and
the architect that such work has been completed in accordance with the
foregoing provisions. If an Event of Default shall have occurred and be
continuing before the disbursement of the Restoration Deposit or any part
thereof, Landlord or Mortgagee shall have no further right or obligation to
disburse any of the Restoration Deposit to Tenant during the continuation of
any such default (except to the extent the disbursement has been requested
prior to the default), but may disburse such amount as may be necessary to cure
any such Event of Default to or for the account of Landlord or Mortgagee. In
connection with any restoration, Landlord may post or give notices of
non-responsibility in compliance with applicable law.
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13. CONDEMNATION. If any part of the Premises should be taken for
any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "Taking" or "Taken"), and the Taking would prevent or materially
interfere with Tenant's use of the Premises, then upon written notice by
Landlord or Tenant this Lease shall terminate and Base Rent shall be
apportioned as of the date of title vesting in such proceeding or purchase.
For purposes of this paragraph, a Taking shall be deemed to "prevent or
materially interfere with Tenant's use of the Premises" only if 40% or more of
the square footage of the Premises is taken. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, the Base Rent
payable hereunder during the unexpired Lease Term shall be reduced to such
extent as may be fair and reasonable under the circumstances. In the event of
any such Taking, Landlord shall be entitled to receive the entire price or
award from any such Taking without any payment to Tenant, and Tenant hereby
assigns to Landlord Tenant's interest, if any, in such award. Tenant shall
have the right, to the extent that same shall not diminish Landlord's award, to
make a separate claim against the condemning authority (but not Landlord) for
such compensation as may be separately awarded or recoverable by Tenant for
moving expenses and damage to the partitions and trade fixtures that Tenant is
permitted to remove under this Lease, if a separate award for such items is
made to Tenant.
14. ASSIGNMENT AND SUBLETTING. Without Landlord's prior written
consent, Tenant shall not assign this Lease or sublease the Premises or any
part thereof or mortgage, pledge, or hypothecate its leasehold interest or
grant any concession or license within the Premises and any attempt to do any
of the foregoing shall be void and of no effect. For purposes of this
paragraph, a transfer of the ownership interests controlling Tenant shall be
deemed an assignment of this Lease unless, at the time of such transfer or
immediately following such transfer, Tenant's ownership interests are publicly
traded. (For purposes hereof, the parties understand, acknowledge and agree
that a public offering of interests in Tenant should not be deemed a transfer
for purposes hereof.) Notwithstanding the above, Tenant may assign or sublet
the Premises, or any part thereof, to any entity controlling Tenant, controlled
by Tenant or under common control with Tenant (a "Tenant Affiliate"), without
the prior written consent of Landlord. Tenant shall reimburse Landlord for all
of Landlord's reasonable out-of-pocket expenses in connection with any
assignment or sublease. Notwithstanding the foregoing, Tenant may pledge its
leasehold estate created hereby to General Electric Capital Corporation (or any
affiliate thereof) as security for the extension of credit to Tenant (or any
affiliate thereof); provided such pledge is at all times subject and
subordinate to Landlord's interest in the Premises.
Notwithstanding any assignment or subletting (unless otherwise
agreed by Landlord in its sole and absolute discretion), Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such assignments or
sublettings). In the event that the rent due and payable by a sublessee or
assignee (or a combination of the rental payable under such sublease or
assignment plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease, then Tenant shall be bound and
obligated to pay Landlord as additional rent hereunder all such excess rental
and other excess consideration within 10 days following receipt thereof by
Tenant.
If this Lease be assigned or if the Premises be subleased
(whether in whole or in part) or in the event of the mortgage, pledge, or
hypothecation of Tenant's leasehold interest or grant of any concession or
license within the Premises or if the Premises be occupied in whole or in part
by anyone other than Tenant, then upon a default by Tenant hereunder Landlord
may collect rent from the assignee, sublessee, mortgagee, pledgee, party to
whom the leasehold interest was hypothecated, concessionee or licensee or other
occupant and, except to the extent set forth in the preceding paragraph, apply
the amount collected to the next rent payable hereunder; and all such rentals
collected by Tenant shall be held in trust for Landlord and immediately
forwarded to Landlord. No such transaction or collection of rent or
application thereof by Landlord, however, shall be deemed a waiver of these
provisions or a release of Tenant from the further performance by Tenant of its
covenants, duties, or obligations hereunder.
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15. INDEMNIFICATION. Except for the indemnified party's
negligence, fault or omission, and to the extent permitted by law, Tenant
agrees to indemnify, defend and hold harmless Landlord, Mortgagee and their
respective agents, employees and contractors, from and against any and all
losses, liabilities, damages, costs and expenses (including attorneys' fees)
resulting from claims by third parties for injuries to any person and damage to
or theft or misappropriation or loss of property occurring in or about the
Premises and arising from the use and occupancy of the Premises or from any
activity, work, or thing done, permitted or suffered by Tenant in or about the
Premises or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents. The furnishing of
insurance required hereunder shall not be deemed to limit Tenant's obligations
under the provisions of this Paragraph 15. This indemnity shall survive the
termination of this Lease.
16. INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises at any reasonable time
(upon prior notice, except in the case of an emergency) to inspect the Premises
and to make any necessary repairs or to make any changes and alterations
required by law or for safety to any portion of the Premises exterior,
including, without limitation, the parking areas, access areas and the exterior
walls and roof of the Premises. Landlord agrees that in exercising any right
to enter the Premises and in exercising any other rights reserved pursuant to
this paragraph, Landlord shall use reasonable efforts to minimize any
interference with Tenant's use of the Premises. Upon reasonable advance notice
to Tenant and so long as the same does not unreasonably interfere with Tenant's
use of the Premises, Landlord and Landlord's representatives may enter the
Premises during business hours for the purpose of showing the Premises to
prospective purchasers or, during the last year of the Lease Term, to
prospective tenants; in addition, subject to the reasonable approval of Tenant
and so long as the same does not unreasonably interfere with Tenant's use of
the Premises, and subject to Paragraph 32 below, Landlord shall have the right
to erect a suitable sign on the Premises stating the Premises are available to
let or that the Premises is available for sale. Solely for purposes of
effecting reasonably necessary or appropriate utility easements, Landlord
reserves the right to grant easements, change any common area or access, create
restrictions, and make public dedications on or affecting the Premises that do
not materially interfere with Tenant's use or occupancy of the Premises. At
Landlord's request, Tenant shall execute such instruments as may be necessary
for such easements or dedications.
17. QUIET ENJOYMENT. If Tenant shall perform all of the covenants
and agreements herein required to be performed by Tenant, Tenant shall, subject
to the terms of this Lease, at all times during the Lease Term, have peaceful
and quiet enjoyment of the Premises against any person claiming by, through or
under Landlord.
18. SURRENDER. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the
Premises to Landlord in the same condition as received, broom clean, ordinary
wear and tear and results from any condemnation excepted. All obligations of
Tenant and Landlord hereunder not fully performed as of the termination of the
Lease Term shall survive the termination of the Lease Term.
19. HOLDING OVER. If, for any reason, Tenant retains possession
of the Premises after the termination of the Lease Term, unless otherwise
agreed in writing, such possession shall be subject to immediate termination by
Landlord at any time, and all of the other terms and provisions of this Lease
(excluding any expansion or renewal option or other similar right or option)
shall be applicable during such holdover period, except that Tenant shall pay
Landlord from time to time, upon demand, as Base Rent for the holdover period,
an amount equal to 120% of the Base Rent in effect on the termination date,
computed on a monthly basis for each month or part thereof during such holding
over. All other payments shall continue under the terms of this Lease. In
addition, Tenant shall be liable for all damages incurred by Landlord as a
result of such holding over. No holding over by Tenant, whether with or
without consent of Landlord, shall operate to extend this Lease except as
otherwise expressly provided, and this Paragraph 19 shall not be construed as
consent for Tenant to retain possession of the Premises.
20. EVENTS OF DEFAULT. Each of the following events shall be an
event of default ("Event of Default") by Tenant under this Lease:
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(i) Tenant shall fail to pay any installment of Base Rent
or any other payment required herein when due, and such failure shall
continue for a period of 3 days from the date Tenant is given written
notice of such failure but in any event not less than 10 days from the
date such payment was due.
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the
benefit of creditors; (B) commence any proceeding for relief, or
seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts or seeking appointment
of a receiver, trustee, custodian or other similar official for it or
for all or of any substantial part of its property; (C) become the
subject of any such proceeding which is not dismissed within 60 days
of its filing or entry; or (D) die or suffer a legal disability (if
Tenant, guarantor, or surety is an individual) or be dissolved or
otherwise fail to maintain its legal existence (if Tenant, guarantor
or surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall
expire or shall be reduced or materially changed, except, in each
case, as permitted in this Lease.
(iv) Tenant shall not occupy or shall vacate the Premises
or shall fail to continuously operate its business at the Premises
within normal business hours and on normal business days for the
permitted use set forth herein, whether or not Tenant is in monetary
or other default under this Lease.
(v) Tenant shall attempt or there shall occur any
assignment, subleasing or other transfer of Tenant's interest in or
with respect to this Lease except as otherwise permitted in this
Lease.
(vi) Tenant shall fail to discharge any lien placed upon
the Premises in violation of this Lease within 60 days after any such
lien or encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of this
Lease other than those specifically referred to in this Paragraph 20,
and except as otherwise expressly provided therein, such default shall
continue for more than 30 days after Landlord shall have given Tenant
written notice of such default provided that in the event a longer
period is reasonably necessary to cure any such default, Tenant shall
have such additional period in which to cure such default up to a
maximum of 180 days so long as Tenant shall commence the necessary
cure within such 30 day period and continuously prosecute the same
with reasonable diligence.
21. LANDLORD'S REMEDIES. Upon each occurrence of an Event of
Default and so long as such Event of Default shall be continuing, Landlord may
at any time thereafter at its election: (i) terminate this Lease or Tenant's
right of possession, but Tenant shall remain liable as hereinafter provided;
and/or (ii) pursue any remedies provided for under this Lease or at law or in
equity. Upon the termination of this Lease or termination of Tenant's right of
possession, it shall be lawful for Landlord, without formal demand or notice of
any kind, to re-enter the Premises by summary dispossession proceedings or any
other action or proceeding authorized by law and to remove Tenant and all
persons and property therefrom. If Landlord re-enters the Premises, Landlord
shall have the right to keep in place and use, or remove and store, all of the
furniture, fixtures and equipment at the Premises.
If Landlord terminates this Lease, Landlord may recover from
Tenant the sum of: all Base Rent and all other amounts accrued hereunder to
the date of such termination; the cost of reletting the whole or any part of
the Premises, including without limitation brokerage fees and/or leasing
commissions incurred by Landlord, and, to the extent commercially reasonable in
Landlord's reasonable opinion, costs of removing and storing Tenant's or any
other occupant's property, repairing, altering, remodeling, or otherwise
putting the Premises into condition acceptable to a new tenant or tenants
(provided Tenant shall not be liable for any such costs which are inconsistent
with the use of the Premises as an office/warehouse facility), and all
reasonable expenses incurred by Landlord in
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pursuing its remedies, including reasonable attorneys' fees and court costs;
and the excess of the then present value of the Base Rent and other amounts
payable by Tenant under this Lease as would otherwise have been required to be
paid by Tenant to Landlord during the period following the termination of this
Lease measured from the date of such termination to the expiration date stated
in this Lease, over the present value of any net amounts which Tenant
establishes Landlord can reasonably expect to recover by reletting the Premises
for such period, taking into consideration the availability of acceptable
tenants and other market conditions affecting leasing. Such present values
shall be calculated at a discount rate equal to the 90-day U.S. Treasury ▇▇▇▇
rate at the date of such termination.
If Landlord terminates Tenant's right of possession (but not
this Lease), Landlord shall use commercially reasonable efforts to mitigate
damages by using reasonable efforts to relet the Premises for the account of
Tenant for such rent and upon such terms as shall be reasonably satisfactory to
Landlord without thereby releasing Tenant from any liability hereunder and
without demand or notice of any kind to Tenant. For the purpose of such
reletting Landlord is authorized to make any repairs, changes, alterations, or
additions in or to the Premises as Landlord deems reasonably necessary or
desirable. If the Premises are not relet, then Tenant shall pay to Landlord as
damages a sum equal to the amount of the rental reserved in this Lease for such
period or periods, plus the cost of recovering possession of the Premises
(including attorneys' fees and costs of suit), the unpaid Base Rent and other
amounts accrued hereunder at the time of repossession, and the costs incurred
in any attempt by Landlord to relet the Premises. If the Premises are relet
and a sufficient sum shall not be realized from such reletting [after first
deducting therefrom, for retention by Landlord, the unpaid Base Rent and other
amounts accrued hereunder at the time of reletting, the cost of recovering
possession (including attorneys' fees and costs of suit), all of the costs and
expense of repairs, changes, alterations, and additions, the expense of such
reletting (including without limitation brokerage fees and leasing commissions)
and the cost of collection of the rent accruing therefrom] to satisfy the rent
provided for in this Lease to be paid, then Tenant shall immediately satisfy
and pay any such deficiency. Any such payments due Landlord shall be made upon
demand therefor from time to time and Tenant agrees that Landlord may file suit
to recover any sums falling due from time to time. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect in
writing to terminate this Lease for such previous breach.
Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of
Landlord or Landlord and Tenant. Any law, usage, or custom to the contrary
notwithstanding, Landlord shall have the right at all times to enforce the
provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in
any way or manner contrary to the specific terms, provisions, and covenants of
this Lease or as having modified the same. Tenant and Landlord further agree
that forbearance or waiver by Landlord to enforce its rights pursuant to this
Lease or at law or in equity, shall not be a waiver of Landlord's right to
enforce one or more of its rights in connection with any subsequent default. A
receipt by Landlord of rent or other payment with knowledge of the breach of
any covenant hereof shall not be deemed a waiver of such breach, and no waiver
by Landlord of any provision of this Lease shall be deemed to have been made
unless expressed in writing and signed by Landlord. To the greatest extent
permitted by law, Tenant waives the service of notice of Landlord's intention
to re-enter as provided for in any statute, or to institute legal proceedings
to that end, and also waives all right of redemption in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge. The terms
"enter," "re-enter," "entry" or "re-entry," as used in this Lease, are not
restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its reasonable discretion
may determine (including without limitation a term different than the remaining
Lease Term, rental concessions, alterations and repair of the Premises, lease
of less than the entire Premises to any tenant). Landlord shall not be liable,
nor shall Tenant's obligations hereunder be diminished because of, Landlord's
failure to relet the Premises or collect rent due in respect of such reletting
provided Landlord has used reasonable efforts to mitigate damages as
contemplated hereunder.
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22. TENANT'S REMEDIES. Landlord shall not be in default hereunder
(excluding the Construction Addendum) unless Landlord fails to perform any of
its obligations hereunder within 30 days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature of the
obligation, require a period of time in excess of 30 days, then after such
period of time as is reasonably necessary provided Landlord has commenced
curing the default and pursues such cure with reasonable diligence). All
obligations of Landlord hereunder shall be construed as covenants, not
conditions; and, except as may be otherwise expressly provided in this Lease,
Tenant may not terminate, and to the extent permitted by law waives the benefit
of any law now or hereafter in effect which would permit Tenant to terminate,
this Lease for breach of Landlord's obligations hereunder. All obligations of
Landlord under this Lease will be binding upon Landlord only during the period
of its ownership of the Premises and not thereafter; provided, however,
Landlord shall not sell, transfer or assign this Lease without the prior
written consent of Tenant until the Premises is Substantially Completed (as
defined in the Construction Addendum) unless Tenant is in default under this
Lease and Tenant's right to possession under this Lease has been terminated.
The term "Landlord" in this Lease shall mean only the owner, for the time being
of the Premises, and in the event of the transfer by such owner of its interest
in the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Lease Term upon each new owner for the duration of such
owner's ownership. Any liability of Landlord under this Lease shall be limited
solely to its interest in the Premises, and in no event shall any personal
liability be asserted against Landlord in connection with this Lease nor shall
any recourse be had to any other property or assets of Landlord; provided
Landlord has not placed a mortgage on the Premises which exceeds a loan to
value of 90% at the time the mortgage is placed on the Premises.
23. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO
TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING
OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
24. SUBORDINATION. Tenant hereby agrees to subordinate this Lease
to any first mortgage covering the Premises, provided that, simultaneously with
the execution of such a mortgage, the mortgagee ("Mortgagee") and Landlord
execute an agreement in favor of Tenant on the Mortgagee's current standard
non-disturbance, attornment and subordination form if the Mortgagee is an
institutional lender and, otherwise, in form generally acceptable to
institutional lenders, in proper form for recording, to the effect that the
tenancy and other rights of Tenant hereunder shall not be disturbed so long as
Tenant pays the Base Rent and performs all of the other terms and conditions of
this Lease. The term "mortgage" whenever used in this Lease shall be deemed to
include deeds of trust, security assignments, ground leases and any other
encumbrances, and any reference to the "Mortgagee" of a mortgage shall be
deemed to include the beneficiary under a deed of trust and the lessor under a
ground lease.
25. MORTGAGEE PROTECTION. In the event of any default by Landlord
under this Lease, Tenant will give notice by registered mail to, in addition to
Landlord, any Mortgagee whose address shall have been furnished it, and shall
offer such Mortgagee that same period of time as is afforded Landlord to cure
the default (which period of time shall run concurrently with Landlord's cure
period), plus reasonable time to obtain possession of the Premises by judicial
foreclosure, or otherwise if such should prove necessary to effect a cure.
26. MECHANIC'S LIENS. Tenant has no express or implied authority
to create or place any lien or encumbrance of any kind upon, or in any manner
to bind the interest of Landlord or Tenant in, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs; provided, however, this provision shall not be
interpreted to mean that Tenant shall not be entitled to finance any
furnishings, fixtures and equipment reasonably necessary or appropriate for
Tenant's use of the Premises. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from all loss,
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cost or expense based on or arising out of asserted claims or liens against the
leasehold estate or against the interest of Landlord in the Premises or under
this Lease. Tenant shall give Landlord immediate written notice of the placing
of any lien or encumbrance against the Premises and cause such lien or
encumbrance to be discharged within 60 days of the filing or recording thereof;
provided, however, Tenant may contest such liens or encumbrances as long as
such contest prevents foreclosure of the lien or encumbrance and Tenant causes
such lien or encumbrance to be bonded or insured over in a manner satisfactory
to Landlord within such 60 day period.
27. ESTOPPEL CERTIFICATES. Each party hereto shall, upon request
from the other party, at any time and from time to time execute, acknowledge
and deliver to such party a written statement, in the form generally acceptable
to institutional purchasers or lenders certifying as follows: that this Lease
is unmodified and in full force and effect (or if there has been modification
thereof, that the same is in full force and effect as modified and stating the
nature thereof); that to the best of its knowledge there are no uncured
defaults on the part of the other party hereto (or if any such default exists,
the specific nature and extent thereof); the date to which any rents and other
charges have been paid in advance, if any; and such other matters as are
typically contained in such certificates.
28. ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Material
contained in products used by Tenant in de minimis quantities for ordinary
cleaning and office purposes, Tenant shall not permit or cause any party to
bring any Hazardous Material upon the Premises or transport, store, use,
generate, manufacture, or release any Hazardous Material in or about the
Premises without Landlord's prior written consent. Such consent shall not be
unreasonably withheld provided Landlord determines that the Hazardous Materials
will not create a substantial environmental risk. Tenant, at its sole cost and
expense, shall operate its business in the Premises in compliance with all
Environmental Requirements and shall immediately remediate any Hazardous
Materials released on or from the Premises by Tenant, its agents, employees,
contractors, subtenants or invitees. Tenant shall complete and certify to
disclosure statements as requested by Landlord from time to time relating to
Tenant's transportation, storage, handling, generation, manufacture, use, or
release of Hazardous Materials on the Premises. If the release of any
Hazardous Material on the Premises caused or permitted by Tenant, its agents,
employees, contractors or invitees, with or without Landlord's consent, results
in any contamination, damage or injury to the Premises, the environment or
human health, Tenant shall promptly take all actions at its sole expense as are
necessary to return the Premises to the condition existing prior to the release
of any such Hazardous Material to the Premises and as may be required by
Environmental Requirements, provided that Landlord's written approval shall
first be obtained in cases where the Premises are to be physically altered.
Actual or threatened action or litigation by any governmental authority is not
a condition prerequisite to Tenant's obligations under this paragraph.
The term "Environmental Requirements" means all applicable
present and future statutes, regulations, ordinances, rules, codes, judgments,
orders or other similar enactments of any governmental authority or agency
regulating or relating to health, safety, or environmental conditions on,
under, or about the Premises or the environment, including without limitation,
the following: the Comprehensive Environmental Response, Compensation and
Liability Act; the Resource Conservation and Recovery Act; and all state and
local counterparts thereto, and any regulations or policies promulgated or
issued thereunder. The term "Hazardous Materials" means and includes any
substance, material, waste, pollutant, or contaminant listed or defined as
hazardous or toxic, under any Environmental Requirements and petroleum,
including crude oil or any fraction thereof, natural gas, natural gas liquids,
liquified natural gas or synthetic gas usable for fuel (or mixtures of such
natural gas and synthetic gas).
Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation, diminution
in value of the Premises and loss of rental income from the Premises), claims,
demands, actions, suits, damages (including, without limitation, punitive
damages), expenses (including, without limitation, remediation, corrective
action, or cleanup expenses), and costs (including, without limitation, actual
attorneys' fees, consultant fees or expert fees) which are brought or
recoverable against, or suffered or incurred by Landlord as a result of release
of Hazardous Materials that Tenant is required to remediate as provided above
or any breach of the obligations under this Paragraph 28 by Tenant, its agents,
employees, contractors,
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subtenants, or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The indemnification and hold harmless obligations of Tenant
shall survive any termination of this Lease.
Landlord shall have access to, and a right to perform
inspections and tests of, the Premises as it may require to determine Tenant's
compliance with Environmental Requirements and Tenant's obligations under this
Paragraph 28. Access shall be granted to Landlord upon Landlord's prior notice
to Tenant and at such times so as to minimize, so far as may be reasonable
under the circumstances, any disturbance to Tenant's operations. Such
inspections and tests shall be conducted at Landlord's expense, unless such
inspections or tests reveal that Tenant has not complied with any Environmental
Requirement, in which case Tenant shall reimburse Landlord for the reasonable
cost of such inspection and tests. Landlord's receipt of or satisfaction with
any environmental assessment in no way waives any rights that Landlord holds
against Tenant.
29. ENTIRE AGREEMENT. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have
been made by Landlord or Tenant, or anyone acting on behalf of Landlord or
Tenant, which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties
hereto.
30. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in
that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby. It is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added, as a part of this
Lease, a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
31. BROKERS. Each party represents and warrants that it has
dealt with no broker, agent or other person in connection with this transaction
and that no broker, agent or other person brought about this transaction, other
than the broker, if any, set forth on the first page of this Lease, agrees to
defend, indemnify and hold the other harmless from and against any claims by
any other broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with the indemnitor with regard to this
Lease.
32. SIGNS. Subject to Landlord's reasonable approvals as to size,
location, color and other specifications, which approvals shall not be
unreasonably withheld, Tenant may display a sign or signs on the Building
related to its business that comply with all Legal Requirements and any
covenants, conditions and restrictions affecting the Real Property; provided,
however, (i) in any event Tenant may, subject to applicable laws install a sign
on the Premises similar to any signage at its existing location on the date
hereof as long as such sign is installed within 120 days after Substantial
Completion of the Premises and (ii) Landlord's consent shall not be required
for any changes in any signs on the Premises provided the changes do not result
in a sign which is substantially different in character or larger in size.
Landlord reserves the right to place a monument or other sign on the Premises
during construction or in connection with the sale or, during the last 12
months of the Lease term, lease of the Premises, subject to Paragraph 16 above.
33. LANDLORD'S LIEN/SECURITY INTEREST. Subject to any lien in
favor of General Electric Capital Corporation (or any affiliate thereof or
successor lender (or agent thereof) to Tenant), Tenant hereby grants Landlord a
security interest, and this Lease constitutes a security agreement, within the
meaning of and pursuant to the Uniform Commercial Code of the state in which
the Premises are situated as to all of Tenant's building fixtures situate in,
or upon, or used in connection with the Premises as security for all of
Tenant's obligations hereunder, including, without limitation, the obligation
to pay rent. Tenant's building fixtures shall mean the HVAC, electrical,
plumbing and other similar elements of the Premises but in no event be deemed
to include trade fixtures (including, without limitation, production equipment
and other personal property of Tenant used in its business), machinery or
equipment (other than HVAC, electrical, plumbing or similar elements of the
Premises),
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inventory, raw materials, packaging, merchandise, accounts receivable, contract
rights and products and proceeds of the foregoing. In order to perfect such
security interest, Tenant shall execute such financing statements and file the
same at Tenant's expense at the state and county Uniform Commercial Code filing
offices as often as Landlord in its discretion shall require; and Tenant hereby
irrevocably appoints Landlord its agent for the purpose of executing and filing
such financing statements on Tenant's behalf as Landlord shall deem necessary.
Landlord shall provide copies of such filed financing statements to Tenant.
34. MORTGAGING THE LEASEHOLD ESTATE.
A. Limitation on Mortgages. Tenant is hereby given the right, at any
time and from time to time, to encumber or pledge the leasehold estate created
hereby (the "Leasehold Estate") or any portion thereof and its interest in any
and all buildings, improvements, furnishings, furniture, equipment, fixtures
and personal property situated on the Leased Premises and its interest in and
to this Lease by mortgage, trust deed, collateral assignment and/or other
security instrument (collectively referred to as a "Mortgage"); provided,
however, (a) that at the time such Mortgage is made no default exists under
this Lease which has not been cured, (b) that no mortgagee, trustee, assignee,
beneficiary, secured party or other benefitted party with respect to a security
instrument (collectively a "Mortgagee") or anyone claiming by, through or under
such Mortgagee shall by virtue of such Mortgage acquire any rights in the land
or greater rights in the Premises and building than Tenant then had under this
Lease and (c) all rights under this Section 34 shall only apply to the holder
of a first mortgage on the Premises, and all references herein to "Mortgage"
shall mean only a first mortgage on the Premises and all references herein to
"Mortgagee" shall mean only the holder of a first mortgage on the Premises.
The Mortgagee pursuant to any such Mortgage and the owner of the indebtedness
secured by said Mortgage, upon acquiring ownership of the legal and equitable
title to the Leasehold Estate, shall hold the same subject to the obligations
and covenants of Tenant pursuant to this Lease.
B. Qualifications of Mortgagee. No Mortgagee shall be deemed to be a
Mortgagee unless it is a college or university, savings bank, bank, trust or
insurance company, credit union, pension or profit sharing trust, mortgage
banking company, real estate investment trust, eleemosynary association, or any
other monetary or lending institution, authorized to make loans secured by
interests in real estate. Nothing herein shall be deemed to restrict the right
of any Mortgagee to sell or assign all or a portion of or participation in its
Mortgage to any person or entity. No Mortgagee shall be entitled to enforce
any right or remedy provided for in this Lease or by law until a photocopy,
xerox copy, or an executed counterpart of such Mortgage shall be recorded with
the Salt Lake County Recorder and a copy delivered to Landlord.
C. Consent of Mortgagee Required. There shall be no cancellation,
modification, surrender or amendment of this Lease without the prior written
consent of all Mortgagees, unless an Event of Default has occurred under this
Lease and, unless the Event of Default is of a kind or nature that it cannot be
cured by the Mortgagee, the Mortgagee has not timely caused said Event of
Default to be cured as provided herein. In addition, Landlord and Tenant
acknowledge and agree that Tenant may not exercise any renewal option or
purchase rights contained in this Lease unless Tenant has obtained the consent
of the Mortgagee to such exercise, and Tenant shall give Landlord evidence
reasonably satisfactory to Landlord of such consent prior to or
contemporaneously with such exercise; otherwise such exercise shall be null and
void. Mortgagee (or its nominee or designee) or any purchaser at any
foreclosure sale under the Mortgage shall have the right to mortgage its
leasehold interest in the Premises as provided in this Paragraph 34.
D. Notices to Mortgagee and Performance by Mortgagee. If a Mortgagee
shall have given to Landlord, before any default shall have occurred under this
Lease which has not been cured, a written notice, specifying the name and
address of such Mortgagee, Landlord shall give to each such Mortgagee a copy of
each default notice at the same time as and whenever any such notice shall
thereafter be given by Landlord to Tenant, addressed to such Mortgagee at the
address last furnished to Landlord. No such notice from Landlord to Tenant
shall be deemed to
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have been given unless and until a copy thereof shall have been so given to
such Mortgagee, and no default predicted on the giving of any notice shall be
complete unless a copy of such notice shall have been given to said Mortgagee.
Tenant irrevocably directs that Landlord accept, and Landlord agrees to accept,
performance by any such Mortgagee of any term, covenant, agreement, provision,
condition or limitation on Tenant's part to be performed as though performed
and observed by Tenant; provided, except as otherwise permitted under Paragraph
E below, such performance by said Mortgagee shall occur within the time
prescribed therefor in this Lease, plus an additional period of thirty (30)
days with respect to any default by Tenant other than a default in the payment
of money due hereunder, or plus an additional period of fifteen (15) days with
respect to a default by Tenant in the payment of a sum of money due hereunder.
Landlord hereby agrees that the curing or remedying of a default by any
Mortgagee within such time shall be deemed the curing or remedying thereof by
Tenant.
E. Mortgagee's Grace Period to Cure Certain Defaults and to File
Foreclosure Proceedings. Notwithstanding any other provisions contained in
this Lease, Landlord will not terminate this Lease or invoke its right to take
possession of the Premises on the happening of an Event of Default specified in
subparagraph (1) below unless it shall first give the Mortgagee whose address
has been delivered to Landlord as provided above, sixty (60) days prior written
notice of such Event of Default and unless the Mortgagee shall (1) within said
sixty (60) day period (i) as to an Event of Default which is not susceptible of
being cured by an act which such Mortgagee can perform, institutes appropriate
proceedings to foreclose such Mortgage; or (ii) as to any Event of Default
which is not susceptible of being cured by an act which the Mortgagee can
perform without first obtaining possession of the Premises, institutes
appropriate proceedings to obtain possession of the Premises through
foreclosure, receivership or otherwise; (2) diligently proceed in good faith to
enforce its foreclosure or possession remedy, and so long as such Mortgagee
fully performs all the obligations of Tenant under this Lease that can be
performed by such Mortgagee without possession of the Premises including, but
not limited to, payment of all rent and any and all other moneys due and
payable by Tenant hereunder; provided, however, that if such Mortgagee is able
to obtain possession of the Premises during the time that it is enforcing its
foreclosure remedy or as a result thereof then such Mortgagee shall perform
fully all of Tenant's obligations under this Lease; and (3) upon such
foreclosure or obtaining possession, as the case may be, cures such Event of
Default within the time periods permitted under this Lease (which time periods
shall be deemed to commence upon the date of such foreclosure or upon the date
such possession is finally granted) to the extent such Event of Default is
capable of being cured by the Mortgagee. In the event such Mortgagee acquires
Tenant's interest in and to the Leased Premises and building through such a
foreclosure proceeding, or otherwise, it shall thereupon become subrogated to
all the rights of Tenant under this Lease whereupon: (i) Tenant shall have no
further rights hereunder, and (ii) such Mortgagee shall take subject to each
and all of Tenant's obligations and covenants under this Lease.
F. Right of Mortgagee to Make a New Lease. As an alternative to the
rights and obligations of the Mortgagee set forth in this Lease, upon receipt
by Mortgagee of the notice of Event of Default which is not capable of cure by
the Mortgagee upon foreclosure or obtaining possession, if, within sixty (60)
days after the receipt of such notice and continuing thereafter or at any time
while Mortgagee is diligently proceeding in good faith to enforce its
foreclosure remedy in accordance with this Lease, Mortgagee shall
(1) Pay all rent and any and all other moneys due and payable by
Tenant hereunder (but for such default and termination);
(2) Perform all the other obligations of Tenant under this Lease to
the extent that Tenant shall have failed to perform them (except that with
respect to any default which cannot be cured by Mortgagee until it obtains
possession, Mortgagee shall have the time set forth above to cure such
default, provided, however, that such extension of time shall not subject
Landlord to either fine or imprisonment); and
(3) Surrender to Landlord a fully executed copy of this Lease for
cancellation.
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Landlord shall, upon written request of Mortgagee made at any time within such
time period terminate this Lease and deliver a new lease of the Premises to
Mortgagee or its nominee. The new lease (whether it be granted to the
Mortgagee or its nominee) shall have a term equal to the remainder of the term
of this Lease (including any unexercised option to extend the term of this
Lease), and shall be at the then applicable rent and upon the terms and
conditions herein contained, except for requirements which are no longer
applicable or have already been performed. The new lease shall be subject only
to such exceptions to Landlord's title as existed as of the date of this Lease
and to the rights of any person, firm or other entity of whatsoever kind,
character or nature claiming through or under Tenant and any and all matters
created or caused by acts or omissions of or by Tenant, provided Landlord shall
use reasonable efforts to terminate such rights at the cost and expense of
Mortgagee. Mortgagee shall have the right to a new lease as set forth above
provided that Mortgagee shall reimburse Landlord for all of Landlord's
expenses, including reasonable attorneys' fees, incident to such efforts, and
provided that Mortgagee shall have paid to Landlord all the rent and other
sums, charges, costs and expenses due under this Lease and cured all Events of
Default capable of being cured up to and including the date of the commencement
of the term of such new lease, together with all reasonable expenses, including
reasonable attorneys' fees, incident to the execution and delivery of such new
lease. Nothing contained in this Paragraph 34 shall be deemed to impose any
obligation on Landlord to deliver physical possession of the Leased Premises to
such Mortgagee provided Landlord shall use reasonable efforts to join with and
assist Mortgagee in removing any third parties from the Premises as long as
Tenant reimburses Landlord for any actual and reasonable out-of-pocket cost or
expense in connection therewith.
G. Landlord's Right to Cure Events of Default. Notwithstanding
anything herein to the contrary, Landlord shall have the right to cure any
defaults by Tenant under this Lease in accordance with Paragraph 10 above, and
the Mortgagee shall reimburse Landlord for the reasonable cost of such cure
once Mortgagee has foreclosed under the Mortgage or has obtained a new lease
from Landlord on the terms set forth herein.
H. Foreclosure of Leasehold Lien. Prior to commencement of any
action to foreclose said Mortgage, the Mortgagee, or any assigns of the
Mortgagee, shall notify Landlord in writing of the default by Tenant with a
statement of the amount then due and offer to withhold any acceleration of
maturity of the promissory note, payment of which is secured by the Mortgage,
in the event Landlord shall pay forthwith to said Mortgagee all amounts then in
arrears on said Mortgage, and upon such payment to reinstate the Mortgage in
all respects as if no default had occurred. Landlord may, at its option,
provide Tenant with written notice that it intends to make such payments on
said Mortgage. Landlord may then make such payments on the Mortgage unless,
within ten (10) days after receiving such notice, Tenant provides to Landlord
written notice that it contests the existence of a default under the Mortgage
and adequate assurance that the default shall be cured if Tenant does not
prevail in contesting such default. If Tenant does not provide such notice to
Landlord, Landlord may make such payments on the Mortgage and the amount of
such payments shall constitute a separate obligation of Tenant to Landlord.
Subsequent and successive defaults by Tenant in making payments required by any
Mortgage shall be subject to the foregoing provisions each time any such
default occurs. The judgment foreclosing the Mortgage and the foreclosure sale
thereunder shall not release Tenant from any of its obligations herein set
forth.
I. Estoppel Certificate. Upon the written request of any Mortgagee
or prospective Mortgagee, and for the exclusive benefit of said Mortgagee,
Landlord will promptly deliver to said Mortgagee a written instrument
certifying as to any of the following facts or matters, to the extent the same
are then the case or applicable: that such Mortgagee is qualified under this
Lease; that to Landlord's actual knowledge, there are no existing defaults
under this Lease; that this Lease is then unmodified and in full force and
effect; that plans and specifications then existing and covering improvements
proposed to be constructed on the Premises have been approved by or on behalf
of Landlord; that, to Landlord's knowledge, any improvements constructed upon
the Premises by Tenant have been constructed and completed pursuant to and in
compliance with this Lease; that, to Landlord's knowledge, the uses to which
the Premises are being put or are proposed to be put are permissible under this
Lease; the date which constitutes the date the Premises was tenant occupied;
the amount of the Base Rent, as the same may have been adjusted; and such other
reasonable matters to which the Mortgagee makes inquiry.
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35. LIMITATION OF LIABILITY. Any obligation or liability
whatsoever of Landlord which may arise at any time under this Lease or any
obligation or liability which may be incurred by it pursuant to any other
instrument, transaction, or undertaking contemplated hereby shall not be
personally binding upon, nor shall resort for the enforcement thereof be had to
the property of, its trustees, directors, shareholders, officers, employees or
agents, regardless of whether such obligation or liability is in the nature of
contract, tort, or otherwise. Any obligation or liability of Tenant which may
arise at any time under this Lease or any obligation or liability which may be
incurred by it pursuant to any other instrument, transaction, or undertaking
contemplated hereby shall not be personally binding upon, nor shall resort for
the enforcement thereof be had to the property of, its trustees, directors,
shareholders, officers, employees or agents, regardless of whether such
obligation or liability is in the nature of contract, tort, or otherwise.
36. MISCELLANEOUS. (a) Any payments or charges due from Tenant
to Landlord hereunder shall be considered rent for all purposes of this Lease;
provided for payments and charges other than Base Rent, Landlord may not
terminate this Lease if Tenant pays such payment or charge within 15 days after
notice from Landlord that such payment or charge is due.
(b) If and when included within the term "Tenant," as used in this
instrument, there is more than one person, firm or corporation, each shall be
jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease
shall be in writing and shall be sent by registered or certified mail, return
receipt requested, or by a reputable national overnight courier service,
postage prepaid, or by hand delivery addressed to the parties at their
addresses below, or by facsimile (provided a copy of any facsimile notice is
delivered in accordance with one of the other foregoing methods for delivery of
notice). Any notice sent to Landlord shall be sent to ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice sent to Tenant shall
be sent to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ until the
Commencement Date, after which date such notice shall be sent to Tenant at the
Premises, with a copy to ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇. Either party may by notice given aforesaid change its address for
all subsequent notices. Except where otherwise expressly provided to the
contrary, notice shall be deemed given upon delivery.
(d) At Landlord's request from time to time Tenant shall furnish
Landlord with true and complete copies of its most recent annual and, during
the first five years of the Lease term, quarterly financial statements prepared
by Tenant or Tenant's accountants and any other financial information or
summaries that Tenant typically provides to its lenders or shareholders. The
annual financial statements shall be audited by an independent certified public
accountant, and the quarterly financial statements shall be certified by
Tenant.
(e) This Lease shall not be filed by or on behalf of Landlord or
Tenant in any public record. Landlord or Tenant may prepare and file, and upon
request by either party the other party will execute, a memorandum of lease.
(f) The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Lease or any exhibits or amendments hereto.
(g) The submission by Landlord to Tenant of this Lease shall have
no binding force or effect, shall not constitute an option for the leasing of
the Premises, nor confer any right or impose any obligations upon either party
until execution of this Lease by both parties.
(h) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires. The
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captions inserted in this Lease are for convenience only and in no way define,
limit or otherwise describe the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
(i) Any amount not paid by Tenant within 7 days after its due date
in accordance with the terms of this Lease shall bear interest from such due
date until paid in full at the lesser of the highest rate permitted by
applicable law or 12 percent per year. It is expressly the intent of Landlord
and Tenant at all times to comply with applicable law governing the maximum
rate or amount of any interest payable on or in connection with this Lease. If
applicable law is ever judicially interpreted so as to render usurious any
interest called for under this Lease, or contracted for, charged, taken ,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any
new document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder.
(j) Construction and interpretation of this Lease shall be
governed by the laws of the state in which the Premises are located, excluding
any principles of conflicts of laws.
(k) Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(l) All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. In the event of any
conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
(m) Notwithstanding execution of this Lease by Landlord, Landlord
may terminate this Lease within 10 days after Landlord's execution of this
Lease if Landlord's applicable internal approvals to this Lease have not been
obtained.
(n) This Lease is contingent on Landlord purchasing the Premises
from Tenant pursuant to a contract being entered into by Landlord and Tenant
simultaneously with the execution of this Lease. If Landlord does not purchase
the Premises for any reason, this Lease shall be null and void.
(o) Landlord and Tenant each represents and warrants to the other
that the individual executing this Lease on its behalf is duly authorized to
execute and deliver this Lease on its behalf in accordance with the rules and
regulations applicable to it and that this Lease is binding upon it in
accordance with its terms. Each party hereto affirms and states that such
party has the full right, power and authority to enter into and perform under
this Lease, and that the same will not contravene or result in the violation of
any agreement, rule or regulation to which such party may be subject.
(p) Each party agrees to execute and deliver all documents and to
perform all further acts as may be reasonably necessary to carry out the
provisions of this Lease. The parties hereto agree to use reasonable diligence
and to exercise their best efforts to fulfill their respective obligations
under this Lease at all times that this Lease is in effect; provided, however,
that the use of reasonable diligence and best efforts shall not excuse any
party from failing to perform its obligations hereunder.
(q) Any representations, warranties or covenants made by Landlord
or Tenant, as the case may be, hereunder shall survive the termination of this
Lease.
(r) Landlord warrants that as of the date it purchases the
Premises and this Lease becomes effective, there will be no liens, encumbrances
or exceptions to title which could adversely affect Tenant's rights under this
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Lease, provided Landlord makes no warranty as to any liens, encumbrances or
exceptions in effect when title to the Premises was conveyed by Tenant to
Landlord except for liens, encumbrances or exceptions caused by Landlord.
(s) Notwithstanding any other term or condition of this Lease,
Landlord agrees that it will not transfer, assign or convey this Lease or the
Premises to an individual or entity which competes with Tenant in a "Competing
Business" (as defined below). For purposes hereof, a "Competing Business"
means any business which engages in any of the activities engaged in by Tenant
as of the date of this Lease; provided that any individual(s) or entity shall
not be deemed engaged in a Competing Business solely by reason of owning an
equity interest in a corporation or other entity which is engaged in a
Competing Business unless it controls such corporation or other entity.
Concurrently herewith, Landlord and Tenant are entering into a side letter
agreement pursuant to which the parties are stipulating as to which activities
Tenant is engaged in as of the date of this Lease.
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SIGNATURE PAGE
TO
BUILD-TO-SUIT LEASE AGREEMENT
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT: LANDLORD:
WEIDER NUTRITION GROUP INC. SCI DEVELOPMENT
SERVICES INCORPORATED
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- -----------------------------------
Title: Chief Operating Officer Title: Managing Director
Address: Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Colorado 80011
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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ADDENDUM ___
TWO RENEWAL OPTIONS AT MARKET
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED ________________, 1996, BETWEEN
SCI DEVELOPMENT SERVICES INCORPORATED
and
WEIDER NUTRITION GROUP
(a) Provided that as of the time of the giving of the First Extension
Notice and the Commencement Date of the First Extension Term, (y) Tenant
actually occupies all of the Premises initially demised under this Lease and
any space added to the Premises, and (z) no Event of Default exists or would
exist but for the passage of time or the giving of notice, or both; then Tenant
shall have the right to extend the Lease Term for an additional term of five
years (such additional term is hereinafter called the "First Extension Term")
commencing on the day following the expiration of the Lease Term (hereinafter
referred to as the "Commencement Date of the First Extension Term"). Tenant
shall give Landlord notice (hereinafter called the "First Extension Notice") of
its election to extend the term of the Lease Term at least 12 months, but not
more than 15 months, prior to the scheduled expiration date of the Lease Term.
(b) Provided that as of the time of the giving of the Second Extension
Notice and the Commencement Date of the Second Extension Term, (y) Tenant
actually occupies all of the Premises initially demised under this Lease and
any space added to the Premises, and (z) no Event of Default exists or would
exist but for the passage of time or the giving of notice, or both and provided
Tenant has exercised its option for the First Extension Term; then Tenant shall
have the right to extend the Lease Term for an additional term of five years
(such additional term is hereinafter called the "Second Extension Term")
commencing on the day following the expiration of the First Extension Term
(hereinafter referred to as the "Commencement Date of the Second Extension
Term"). Tenant shall give Landlord notice (hereinafter called the "Second
Extension Notice") of its election to extend the term of the Lease Term at
least 12 months, but not more than 15 months, prior to the scheduled expiration
date of the First Extension Term.
(c) The Base Rent payable by Tenant to Landlord during the First
Extension Term shall be the greater of (i) the Base Rent applicable to the last
year of the initial Lease term and (ii) the then prevailing market rate for
comparable space in the Project and comparable buildings in the vicinity of the
Project, taking into account the size of the Lease, the length of the renewal
term, market escalations and the credit of Tenant. The Base Rent shall not be
reduced by reason of any costs or expenses saved by Landlord by reason of
Landlord's not having to find a new tenant for such premises (including,
without limitation, brokerage commissions, costs of improvements, rent
concessions or lost rental income during any vacancy period). In the event
Landlord and Tenant fail to reach an agreement on such rental rate and execute
the Amendment (defined below) at least 9 months prior to the expiration of the
Lease, then Tenant's exercise of the renewal option shall be deemed withdrawn
and the Lease shall terminate on its original expiration date.
(d) The Base Rent payable by Tenant to Landlord during the Second
Extension Term shall be the greater of (i) the Base Rent applicable to the last
year of the First Extension Term and (ii) the then prevailing market rate for
comparable space in the Project and comparable buildings in the vicinity of the
Project, taking into account the size of the Lease, the length of the renewal
term and the credit of Tenant. The Base Rent shall not be reduced by reason of
any costs or expenses saved by Landlord by reason of Landlord's not having to
find a new tenant for such premises (including, without limitation, brokerage
commissions, costs of improvements, rent concessions or lost rental income
during any vacancy period). In the event Landlord and Tenant fail to reach an
agreement on such rental rate and execute the Amendment (defined below) at
least 9 months prior to the expiration of the Lease, then
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Tenant's exercise of the renewal option shall be deemed withdrawn and the Lease
shall terminate at the end of the First Extension Term.
(e) The determination of Base Rent does not reduce the Tenant's
obligation to pay or reimburse Landlord for operating expenses and other
reimbursable items as set forth in the Lease, and Tenant shall reimburse and
pay Landlord as set forth in the Lease with respect to such operating expenses
and other items with respect to the Premises during the First Extension Term
and Second Extension Term without regard to any cap on such expenses set forth
in the Lease.
(f) Except for the Base Rent as determined above, Tenant's occupancy of
the Premises during the Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the initial
Lease Term; provided, however, Tenant shall have no further right to any
allowances, credits or abatements (except for those which, under the terms of
the Lease, exist immediately prior to the commencement of the applicable
Extension Term) or any options to expand, contract, renew or extend the Lease.
(g) If Tenant does not give the First Extension Notice within the
period set forth in paragraph (a) above, Tenant's right to extend the Lease
Term for the First Extension Term and the Second Extension Term shall
automatically terminate. If Tenant does not give the Second Extension Notice
within the period set forth in paragraph (b) above, Tenant's right to extend
the Lease Term for the Second Extension Term shall automatically terminate.
Time is of the essence as to the giving of the First Extension Notice and
Second Extension Notice.
(h) Subject to Landlord's obligations with respect to the structural
components and roof of the Premises as specified in the Lease, Landlord shall
have no obligation to refurbish or otherwise improve the Premises for the
Extension Term. The Premises shall be tendered on the Commencement Date of the
First Extension Term and Second Extension Term in "as-is" condition.
(i) If the Lease is extended for either the First Extension Term or
Second Extension Term, then Landlord shall prepare and Tenant shall execute an
amendment to the Lease confirming the extension of the Lease Term and the other
provisions applicable thereto (the "Amendment").
(j) If Tenant exercises its right to extend the term of the Lease for
the First Extension Term or second Extension Term pursuant to this Addendum,
the term "Lease Term" as used in the Lease, shall be construed to include,
when practicable, the First Extension Term or Second Extension Term, as
applicable, except as provided in (f) above.
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ADDENDUM __
RIGHT OF FIRST OFFER
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED _____________________ 1996 BETWEEN
SCI DEVELOPMENT SERVICES INCORPORATED
and
WEIDER NUTRITION GROUP
(a) Provided that as of the date of the giving of Landlord's Notice,
(y) Tenant actually occupies all of the Premises originally demised under this
Lease and any premises added to the Premises, and (z) no Event of Default or
event which but for the passage of time or the giving of notice, or both, would
constitute an Event of Default has occurred and is continuing, if Landlord
intends to market the Premises for sale or accept a purchase offer for the
Premises at any time during the first five years of the Lease Term, then
Landlord, before offering the Premises for sale or agreeing to sell the
Premises, shall offer to Tenant the right to purchase the Premises on the same
terms and conditions upon which Landlord intends to offer the Premises for sale
or sell the Premises.
(b) Such offer shall be made by Landlord to Tenant in a written notice
(hereinafter called the "First Offer Notice") which offer shall specify the
terms which Landlord intends to offer the Premises for sale or sell the
Premises. Tenant may accept the offer set forth in the First Offer Notice by
delivering to Landlord an unconditional acceptance (hereinafter called
"Tenant's Notice") of such offer within 10 business days after delivery by
Landlord of the First Offer Notice to Tenant. Time shall be of the essence
with respect to the giving of Tenant's Notice. If Tenant does not accept (or
fails to timely accept) the offer made by Landlord pursuant to the provisions
of this Addendum, Landlord shall be under no further obligation by reason of
this Addendum; and Landlord may thereafter sell the Premises to a third party
free and clear of all obligations set forth in this Addendum, which sale may be
on terms which are less favorable to Landlord than set forth in the First Offer
Notice except as set forth below.
(c) If Tenant exercises its right to purchase the Premises, the parties
shall proceed with due diligence to close on the sale of the Premises to Tenant
provided the closing shall take place in any event within 3 months after the
date on which Tenant exercises its right to purchase the Premises.
(d) If Landlord does not enter into a contract for the sale of the
Premises within one year from the date Tenant has elected not to purchase the
Premises pursuant to this Addendum, Tenant shall again have the rights set
forth in this Addendum with respect to the marketing or sale of the Premises.
Further, if Landlord desires to accept an offer for the Premises from a third
party which is less than 90% of the purchase price offered to Tenant or is
otherwise on terms which are substantially less favorable than those offered to
Tenant, then Landlord must offer to sell and, at Tenant's option, sell the
Premises to Tenant on such terms pursuant to the provisions of this Addendum.
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ADDENDUM __
RIGHT TO SHARE SALE PROCEEDS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED _____________________ 1996 BETWEEN
SCI DEVELOPMENT SERVICES INCORPORATED
and
WEIDER NUTRITION GROUP
(a) Provided that as of the date of the giving of Landlord's Notice,
(x) Tenant is the Tenant originally named herein or an affiliate of the Tenant
originally named herein, (y) Tenant actually occupies all of the Premises
originally demised under this Lease and any premises added to the Premises, and
(z) no Event of Default or event which but for the passage of time or the
giving of notice, or both, would constitute an Event of Default has occurred
and is continuing, if Landlord closes on a sale of the Premises or enters into
a contract for the sale of the Premises during the first five years of the
Lease term commencing on the Commencement Date), then Landlord shall pay Tenant
fifty percent of the profit, if any and as calculated hereunder, earned by
Landlord on the closing of the sale of the Premises; provided, however, if such
sale closes during the first year of the Lease term, Tenant's share of such
profit shall in no event be less $503,730.00. Such profit shall equal the Net
Proceeds received by Landlord from the sale of the Premises less the Premises
Construction Costs. The Net Proceeds shall equal the gross proceeds received by
Landlord from the sale less all costs incurred by Landlord in connection with
such sale (including legal fees, brokerage commissions, prorations and closing
expenses) which Landlord is able to substantiate to Tenant's reasonable
satisfaction; provided, however, in no event shall such costs include brokerage
commissions paid or imputed to Landlord's affiliates. The Premises
Construction Costs shall equal all costs in the categories described in Exhibit
1 attached hereto which Landlord can reasonably substantiate have been spent on
the construction of the Premises and for which Landlord has not been
reimbursed, including a three percent development fee based on all development
costs for the Premises (including development costs for land and imputed
interest at 9.25%). In no event, however, shall Premises Construction Costs
include the salaries and fringe benefits of employees of Landlord.
(b) If Landlord does not close on the sale of the Premises during the
first year of the Lease term, Landlord shall pay Tenant $503,730.00 at the end
of the first year of the Lease term. If Landlord has made such payment and
then closes on the sale of the Premises after the first year of the Lease term,
such payment made at the end of the first Lease year (without imputed interest)
shall be credited against the payment due Tenant pursuant to paragraph (a)
above. Upon Substantial Completion of the Premises, Landlord shall use
commercially reasonable efforts to sell the Premises provided the terms of such
sale are satisfactory to Landlord in its sole and absolute discretion.
Commercially reasonable efforts shall not be deemed to include a requirement
that Landlord use an outside broker in attempting to sell the Premises, and
Landlord shall be under no obligation to use an outside broker.
(c) The provisions of this Addendum shall only apply to the first sale
of the Premises after Substantial Completion of the Premises which is made in
an arms-length transaction to a party not affiliated with Landlord.
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EXHIBIT 1
"Premises Construction Cost" is the sum of (i) the land cost - the
purchase price paid by Landlord to purchase the Premises and all costs related
to the acquisition of the Premises, and (ii) improvement and development costs
-- costs incurred by Landlord to prepare the Premises and construct the Work
(defined below), including landscaping and utility lines, as determined by
Landlord according to its standard underwriting criteria and cost calculation
methods. The Landlord has categorized the improvement and development costs
referred to above as follows:
- infrastructure costs, impact fees, fiscal requirements, platting and
site preparation;
- architectural and engineering fees;
- legal fees;
- testing;
- labor and materials to construct the Work and related infrastructure and
improvements;
- permit fees, sales taxes and fees payable to contractors;
- project landscaping, including related design fees and permits;
- water, gas and electrical hookup fees and related miscellaneous costs;
- all insurance costs, including builder's risk insurance and liability
insurance;
- property taxes assessed during the Work (beginning upon acquisition and
ending on Substantial Completion);
- out-of-pocket expenses incurred paid by Landlord to third parties, and
not reimbursed by Tenant, in managing the pre-construction and
construction process;
- services for verification of compliance with city ordinances and other
laws;
- imputed interest at 9.25 percent on out-of-pocket costs incurred by
Landlord except on the development fee paid to Landlord. Imputed
interest accrues on actual cost as and when incurred up to Substantial
Completion; and
- a development fee of 3% on the Premises Construction Costs
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CONSTRUCTION ADDENDUM
TO
BUILD-TO-SUIT LEASE AGREEMENT
Dated __________________, 1995, Between
SCI DEVELOPMENT SERVICES INCORPORATED
and
WEIDER NUTRITION GROUP
1. Standard Specifications and Final Plans; Change Orders.
(a) Preparation of Final Plans. Landlord shall furnish or perform at
Landlord's sole cost and expense those items of construction and those
improvements ("Building Shell") set forth as the building shell specifications
(the "Standard Specifications") in Exhibit 1 attached hereto. Landlord shall
also furnish or perform at Tenant's sole cost and expense those items of
construction and those improvements (the "Tenant Improvements") set forth as
the tenant improvements specifications (the "Tenant Improvement
Specifications") in Exhibit 1 attached hereto. (The Building Shell and the
Tenant Improvements are herein collectively called the "Work", and the Standard
Specifications and the Tenant Improvement Specifications are herein
collectively called the "Specifications".) Subject to the provisions of this
Addendum, Landlord shall achieve Substantial Completion (as defined below) of
the Work no later than February 28, 1997. Landlord shall provide Tenant with
final working drawings and specifications for the Work (the "Final Plans")
which are consistent with the Specifications. The Work shall include, without
limitation, approximately 384,750 square feet of first floor space, 24,300
square feet of mezzanine office space, and 7,584 square feet of powder
mezzanine space, as shown on Exhibit 3 attached hereto. Tenant shall respond
promptly to any inquiries by Landlord during the development of the Final Plans
and, to the extent requested by Landlord, shall cooperate with Landlord and
Landlord's architect in developing the Final Plans. When Landlord requests
Tenant to specify details or layouts, Tenant shall promptly specify same as
reasonably required by Landlord so as not to delay completion of the Final
Plans or the Work. Any delay in the completion of the Final Plans or the Work
caused by any Tenant failure to respond promptly to Landlord's requests shall
be an Excusable Delay (as hereinafter defined). In addition, Tenant shall pay
to Landlord upon demand all increased costs incurred by Landlord in completing
the Final Plans to the extent such costs are reasonably attributable to any
such Tenant caused delays. Landlord shall give Tenant an allowance of
$5,851,773 (the "Allowance") to be applied towards the costs of the Tenant
Improvements. If the costs of the Tenant Improvements exceed the Allowance,
Tenant shall be responsible for such excess costs, and Tenant shall deposit
with Landlord the amount of such excess costs as reasonably estimated by
Landlord prior to the date Landlord commences construction of the Work and, if
there are any subsequent increases in Landlord's estimate of such excess costs,
from time to time thereafter. If the costs of the Tenant Improvements are less
than the Allowance, such excess Allowance shall be applied towards the Base
Rent due under the Lease in an amount each year equal to 10.5% times the amount
of the excess Allowance until the total amount of the excess has been applied;
provided, however, in no event shall the Allowance be used for moving or
installing Tenant's equipment. For purposes of this Addendum, the Tenant
Improvements shall be deemed to include the design for the Tenant Improvements
and any costs incurred as the result of a modification, required by the project
engineer, in the design or construction of the building slab from the design or
construction requirements therefor set forth in the Standard Specifications,
provided Tenant has been given prior written notice of such modification.
Tenant shall cause to be paid to Landlord $156,000 which is being held in
escrow for landscape improvements from when Tenant purchased the Premises,
which funds shall be used by Landlord to defray the cost of such landscape
improvements.
(b) Change Orders. The Specifications define the entire scope of
Landlord's obligation to construct or provide the Work. Tenant shall not be
entitled to specify or designate any finishes, grades of materials, or other
specifications or details of the construction of the Work which are not
specifically provided for in or contemplated
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by the Specifications unless requested to do so by Landlord. Subject to this
paragraph, however, Landlord shall make additions or changes to the
Specifications requested by Tenant. If Tenant shall desire any such changes,
Tenant shall so advise Landlord in writing (a "Change Order Request") as
promptly as possible so as not to delay the orderly development of the Final
Plans. All reasonable costs incurred by Landlord in having any Change Order
Request reviewed and evaluated shall be reimbursed by Tenant within 10 days
following written demand. Such costs shall include, but not be limited to, the
reasonable costs of architects, engineers, and consultants in reviewing and
designing any such changes and the cost of contractors in providing cost
estimates and constructability, functionality and product availability
analyses. Tenant acknowledges and agrees that (i) Landlord shall not be
obligated to accept any Change Order Request if in the judgment of Landlord the
requested change would have an adverse effect on the quality, useful life,
value, functionality or costs of operating or maintaining the Premises; (ii)
Tenant shall bear all costs and expenses associated with incorporating into the
Final Plans and the Premises any Change Order Request accepted by Landlord,
including without limitation an administrative fee to Landlord equal to 10
percent of the increased cost resulting from such change; (iii) Landlord shall
not be obligated to accept the least expensive method of incorporating the
requested change if in the judgment of Landlord, such method does not
incorporate sound construction practices; (iv) if the Change Order Request
affects the roof, slab, structural components or systems or equipment to be
installed within the Premises or the future serviceability of the Premises, and
the Landlord determines that in order to lease the Premises to any subsequent
tenant, additional work will have to be done to remove the effect of such
change, the anticipated costs of restoring the Premises to the condition it
would have be in but for such change will also be borne by the Tenant at the
time the Tenant's change is incorporated into the Work but not in excess of the
amount agreed to by Tenant at the time of any such Change Order Requested if
Landlord has given Tenant a fixed price for such Change Order; (v) any delays
in the development of the Final Plans or completion of the Work resulting from
addressing Tenant's Change Order Request and incorporating any such change into
the Final Plans and Premises shall constitute an Excusable Delay (as defined in
Paragraph 5 below); and (vi) to the extent Tenant specifies any items which
have not been recommended by Landlord, Tenant assumes full responsibility for
their performance unless otherwise agreed to in writing. Upon agreement
between Landlord and Tenant on the change that will be incorporated into the
Final Plans and Premises as a result of a Change Order Request, and the cost of
such change, the Landlord and Tenant shall execute a change order (a "Change
Order") setting forth the parties' agreement as to such terms.
(c) Approval of Final Plans. Landlord shall submit the Final Plans to
Tenant for its approval and Tenant shall advise Landlord, within 5 days
thereafter, of its approval or disapproval of such Final Plans. Tenant's right
to disapprove the proposed Final Plans ("Objection") shall be limited to
material inconsistencies with the Specifications and Scope of Work and any
Change Orders then entered into, and noncompliance with or violation of
applicable laws, codes, ordinances or other legal requirements. If Tenant
shall not make an Objection to the proposed Final Plans or any element or
aspect thereof within the 5 day period set forth above, then such Final Plans
or the portions not objected to by Tenant shall be deemed approved. Resolution
of any Objection by Tenant to the Final Plans shall be governed by Paragraph 3
below.
(d) Commencement of Construction Before Final Plans. Landlord may
commence construction prior to finalization of the Final Plans and Tenant
agrees that it shall cooperate with Landlord in reviewing and approving
portions of the Final Plans for different stages or elements of the work so
that construction can proceed on a "fast track" basis. The approval process
for such portions of the Final Plans shall be substantially as set forth above,
provided, however, that any Objection may not be inconsistent with the
previously approved portions of the Final Plans.
(e) Change Orders During Construction. In the event that subsequent to
the completion and approval of the Final Plans, Tenant desires to make a change
in the work provided for therein, the parties shall proceed in accordance with
the foregoing provisions relating to changes requested during the development
of the Final Plans.
2. Project Representatives. Landlord hereby designates ▇▇▇▇▇ ▇▇▇▇ to
serve as Landlord's representative and Tenant hereby designates ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇ Company to serve as Tenant's representative during
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the design and construction of the Work. All communications between Landlord
and Tenant relating to the design and construction of the Work shall be
forwarded to or made by such party's representative. In addition, no Change
Order shall be binding on Landlord unless executed by a Vice-President or
Managing Director and no Change Order shall be binding on Tenant unless
executed by ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of ▇▇▇ ▇▇▇▇▇▇ Company, or ▇▇▇▇▇
▇▇▇▇▇▇▇, an employee of Tenant. Landlord will permit Tenant's representative
to have reasonable access to the Premises during construction provided Tenant's
representative does not unreasonably interfere with the completion of the Work.
Tenant's representative shall be sent copies of any reports issued by Landlord
to Tenant, and Tenant's representative shall be notified in advance and may
attend and participate in all project meetings. During the initial
construction of the Premises, Tenant's representative may place a temporary
office/trailer on the Premises in a location designated by Landlord.
3. Dispute Resolution.
(a) Conference of Senior Representatives. The parties shall make good
faith efforts to resolve any dispute which may arise under this Construction
Addendum in an expedient manner. In the event, however, that any dispute
arises, either party may notify the other party of its intent to invoke the
dispute resolution procedure herein set forth by delivering written notice to
the other party. In such event, if the parties' respective representatives are
unable to reach agreement on the subject dispute within 10 business days after
delivery of such notice, then each party shall, within 5 business days
thereafter, designate a senior executive officer of its management to meet at a
mutually agreed location to resolve the dispute.
(b) Arbitration. Subject to the dollar limitation set forth below,
disputes as to the date of Substantial Completion and any work required to be
performed by Landlord hereunder that are not resolved within 5 days by
agreement between the designated executive officers, may be submitted to
arbitration if either party so elects, by delivering written notice to the
other party within 10 days after the expiration of such 5 day period. In such
event, the subject dispute shall be resolved by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association,
subject to the requirement that a single arbitrator unaffiliated with either
party shall decide each matter in dispute within 15 days of the date of his
selection, based solely upon the written statements of position submitted by
each party and subject to the right of Landlord to join in any such arbitration
the Architect of Record and any contractor whose work is the subject of any
such arbitration. The parties consent to the jurisdiction of any appropriate
court in Salt Lake City, Utah, to enforce these arbitration provisions and to
enter judgments upon the decision of the arbitration. Unless otherwise
required by state law, arbitration shall be conducted in Salt Lake City, Utah.
In the event of an arbitration, the losing party shall pay the cost of
arbitrator and the arbitration, but each party shall bear its own attorneys'
fees and costs in preparing for and participating in such arbitration. Only
those disputes described above that do not involve an amount exceeding $100,000
shall be subject to mandatory arbitration pursuant to this Paragraph 3 provided
that in any arbitration between Landlord and contractor, either Landlord or
Tenant shall be entitled to require that Tenant participate and be bound as a
party-in-interest. No other disputes shall be subject to arbitration.
4. Tenant's Installations. Landlord will use commercially reasonable
efforts to give Tenant access to the areas of the Premises identified in
Exhibit 2 by the dates and for the purposes set forth in such Exhibit, provided
such access does not materially interfere with the Work. In addition, Landlord
shall give Tenant six weeks prior written notice of the date on which Landlord
anticipates Substantial Completion will occur. Subject to applicable
ordinances and building codes governing Tenant's right to occupy or perform in
the Premises, and to the provisions of the Lease regarding Tenant-Made
Alterations, which apply to the Tenant's initial installations before
Substantial Completion as well as any after Substantial Completion, Tenant
shall be allowed during the four week period prior to the Commencement Date to
inspect the Premises and to install its machinery, equipment, fixtures, or
other personal property on the Premises when, in Landlord's opinion, such
installation will not interfere with Landlord's completion of construction,
provided that Tenant does hereby agree to assume all risk of loss or damage to
its machinery, equipment, fixtures, and other personal property, including any
loss or damage resulting from the negligence of Landlord and to indemnify,
defend, and hold Landlord harmless from any and all liability, loss, or
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damage arising from any injury to the property of Landlord, its contractors,
subcontractors, or materialmen, and any death or personal injury to any person
or persons arising out of such occupancy or installation. To the extent Tenant
uses any of Landlord's contractors or subcontractors in connection with the
installation of its improvements, Tenant acknowledges and agrees that
Landlord's work shall take priority over that of the Tenant and that Tenant
shall not divert Landlord's contractors or subcontractors from the performance
of their work obligations for Landlord.
5. Substantial Completion.
(a) Determination of Substantial Completion. Landlord shall use
commercially reasonable efforts to achieve Substantial Completion on or before
February 28, 1997, or as otherwise agreed by the parties. "Substantial
Completion" shall be deemed to have occurred on the date upon which the
architect who prepared the Final Plans ("Architect of Record") certifies that
the Work has been completed in substantial accordance with the Final Plans
subject only to completion of punch list items which do not materially
interfere with the utilization of the Work for the purposes for which they were
intended. If Landlord achieves Substantial Completion of any portion of the
Premises prior to the date Landlord has achieved Substantial Completion for the
entire Premises, then (i) Tenant may occupy and conduct its business in such
portion to the extent permitted by applicable law, and (ii) Tenant's
obligations under the Lease (including the obligation to pay a prorata portion
of the Base Rent and other financial obligations under the Lease based on the
proportionate amount of square feet in such portion of the Premises) shall
commence on the latter to occur of (x) February 28, 1997, and (y) the date
Landlord has achieved Substantial Completion for such portion of the Premises.
(b) Inspection and Punch List. Landlord shall notify Tenant in writing
approximately 10 days before the estimated date of Substantial Completion.
Within 5 business days of the anticipated date of Substantial Completion,
Landlord and Tenant shall jointly inspect the Improvements and agree upon a
punch list of items in accordance with the Final Plans needing completion or
correction. As soon as Substantial Completion has been achieved, Landlord
shall notify Tenant in writing of the date certified by the Architect of Record
as the date of Substantial Completion, which date shall be the "Commencement
Date". Landlord shall use all reasonable diligent efforts to complete all
punch list items within 30 days after agreement upon the punch list, subject,
however, to long lead time items which must be ordered and to seasonal
requirements for any landscaping and exterior work.
(c) Acceptance. Upon the Commencement Date, Tenant shall, upon demand,
execute and deliver to Landlord a letter of acceptance of delivery of the
Premises and confirmation of the Commencement Date. If Tenant occupies any
portion of the Premises prior to Substantial Completion or the Commencement
Date, the terms of this Lease shall apply to such occupancy or use of the
Premises by Tenant. Except for incomplete punch list items referred to above,
Tenant upon the Commencement Date shall have and hold the Premises as the same
shall then be without any liability or obligation on the part of Landlord under
this Lease for making any further alterations improvements of any kind in or
about the Premises during the Lease Term, or any extension or renewal thereof.
(d) Tenant-Caused Delay. If Substantial Completion is delayed as a
result of Tenant Change Orders, Tenant's failure to provide in writing the
information set forth on Exhibit 4 by the dates set forth in such Exhibit,
Tenant's interference with the construction of the Work, delays resulting from
Tenant's using Landlord's contractors and/or subcontractors to complete
Tenant's installations, or Tenant's failure to respond within 24 hours to
Landlord's written request to specify details or layouts or other matters, then
the Commencement Date shall be deemed to have occurred when in the opinion of
the Architect of Record, Substantial Completion would have otherwise occurred,
and, any additional costs incurred by Landlord in completing the Work as a
result of such Tenant-caused delays shall be reimbursed by Tenant upon demand
by Landlord.
6. Excusable Delay. In connection with obtaining the necessary
permits and approvals for the Work and the construction of the Work, if any
delay in obtaining such permits and approvals or in such construction is caused
or contributed to by the act or neglect of Tenant, or those acting for or under
Tenant, including without limitation
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failure of Tenant to approve Final Plans, or such portion thereof within the
time period provided above to enable Landlord to make a proper submittal for a
building permit or to agree upon Final Plans that results in a resubmittal of
the application for the building permit, or should there occur any delay in
obtaining any building permits or approvals required for the Work, labor
disputes (except to the extent caused by failure of Landlord, or its
representatives or agents, to perform or make payments to contractors,
subcontractors or others providing services or materials for the Work),
casualties, acts of God or the public enemy, governmental embargo restrictions,
shortages of fuel, labor or building materials, action or non-action of public
utilities, or of applicable governmental authority or building officers
affecting the Work, adverse weather conditions resulting in more than 20 lost
work days, or other causes beyond Landlord's reasonable control (financial
inability excepted) ("Excusable Delay"), then the time required herein to
achieve Substantial Completion shall be extended for such period of time as may
be necessary to compensate for delay. Delays caused by adverse weather
conditions shall be considered Excusable Delays only if they occur on a day
other than Sunday and only if they delay earthwork or work on the concrete or
structural steel. It shall also be deemed an Excusable Delay if (i) Landlord
fails to receive approval of plans and specifications for the Work from the
architectural review committee or other applicable review authority pursuant to
the covenants, conditions and restrictions for Pratezk Industrial Park within
five days of submittal and such failure caused a delay in the construction of
the Work; (ii) a plat of subdivision for the Property, in form and substance
satisfactory to Landlord, has not been duly executed and recorded against the
Property prior to the date originally scheduled for the closing of the purchase
of the Property by Landlord from Tenant, and as a result thereof the Work is
delayed; (iii) the developer for Pratezk Industrial Park fails to complete
construction by August 15, 1996, of the proposed roads 5220 West and 5070 West
leading and adjacent to the Property or complete installation by July 1, 1996,
of any and all utilities required for operation of the Property, to the extent
such failure to complete such construction or installation by such time delays
Substantial Completion of the Work or issuance of a certificate of occupancy;
or (iv) a delay results from any required wetlands delineation or mitigation
required by any federal, state or local authority.
7. Delay Damages and Termination. If, for any reason other than an
Excusable Delay and notwithstanding any other term or condition of the Lease
(including without limitation Paragraph 22 of the Lease), Substantial
Completion shall not have occurred on or before February 28, 1997, then
Landlord shall pay to Tenant, as liquidated damages and not as a penalty, the
sum of $3,000 for each day after the scheduled date of Substantial Completion
until Substantial Completion is achieved, up to a maximum total of $280,000 in
liquidated damages. Delay damages shall be due and payable no later than 15
days after they accrue. Landlord and Tenant stipulate that it would be
impracticable under presently known conditions and anticipated facts and
circumstances to ascertain and establish Tenant's damages caused by such delay,
and that the measure of damages provided above is a reasonable estimation of
such damages. If, for any reason other than an Excusable Delay, Substantial
Completion is not achieved by August 31, 1997, subject to Excusable Delays,
then Tenant may terminate this Lease by written notice to Landlord on or before
30 days after such date, in which case all of Landlord's and Tenant's
obligations hereunder shall terminate, and neither party shall have any further
obligations to the other with respect to this Lease. Tenant waives all claims
for consequential or other damages as a result of any delay.
8. Warranty. Landlord warrants to Tenant for a period of one year
after Substantial Completion that all of the Work performed by Landlord shall
be free from latent defects, and Landlord shall correct any portion of the Work
which is not free from such latent defects provided Tenant (or Tenant's
representative) or any governmental authority gives Landlord written notice of
such defect within one year from the date of Substantial Completion. Tenant
waives any claim for defects in the Work which Tenant does not give Landlord
written notice of during such one year period, and Tenant shall be deemed to
have accepted the Work "as is" after such one year period except for defects
which Tenant has given Landlord written notice thereof during such period and
except for defects which are Landlord's obligation to repair under the terms of
the Lease. In addition, Landlord shall assign to Tenant on a non-exclusive
basis any assignable warranties which Landlord receives from third parties in
connection with the Work.
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9. Early Completion. If Substantial Completion is achieved prior to
February 28, 1997, Tenant shall pay Landlord $1,500 for each day from the date
Substantial Completion was achieved to February 28, 1997. If Substantial
Completion of the Work is delayed due to Excusable Delay, the date of February
28, 1997, in the preceding sentence shall be replaced with the date Landlord is
required to complete the Work as a result of such Excusable Delay; provided,
however, for purposes of this sentence only, Excusable Delay shall not include
any delay described in the last sentence of Paragraph 6 above. Such payment
shall be made by Tenant to Landlord within ten (10) days after the date
Substantial Completion is confirmed pursuant to the terms of this Addendum.
10. Maintenance During Construction. Notwithstanding the terms of the
Lease, Landlord shall be responsible for all repairs and maintenance to the
Premises prior to Substantial Completion except to the extent provided
otherwise in this Construction Addendum.
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EXHIBIT A
Part of the South Half of Section 13, Township 1 South, Range 2 West, Salt Lake
Base & Meridian, being more particularly described as follows:
Beginning at a point which is 1819.39 feet South 89 degrees 56'49" West along
the East-West quarter line and 1273.41 feet South 00 degrees 01'16" East from
the East quarter corner of Section 13, Township 1 South, Range 2 West, Salt
Lake Base and Meridian (basis of bearing being North 00 degrees 00'56" West
along the Section line between the monuments marking the East Quarter corner
and the Northeast corner of Said Section 13), and running thence South 00
degrees 01'16" East 1170.88 feet to a point of curvature with a 39.99 foot
radius curve to the right; thence Southwesterly 62.92 feet along the arc of
said curve through a central angle of 89 degrees 53'30", to the Northerly
right-of-way line of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇; thence South 89 degrees
52'14" West 784.00 feet along said line to the point of curvature with a 40.01
foot radius curve to the right; thence Northwesterly 62.92 feet along the arc
of said curve through a central angle of 90 degrees 06'30"; thence North 00
degrees 01'16" West 1170.72 feet; thence North 89 degrees 52'14" East 864.00
feet to the point of BEGINNING.
Contains 24.00 acres, more or less.
Subject to the following:
(a)Real estate taxes and assessments for the year 1996 and thereafter.
(b)Deed, dated February 26, 1951, in favor of SALT LAKE CITY, a municipal
corporation of the State of Utah, for a perpetual easement over and across a
portion of the subject property for the purpose of operating and maintaining an
existing open canal conveying storm drainage and surface runoff water, and
subject to the terms and conditions contained therein, recorded March 1, 1951,
as Entry No. 1236201, in Book 839, at Page 178, Salt Lake County Recorder's
Office.
(c)Right-of-Way Easements, dated April 30, 1990, in favor of THE MOUNTAIN
STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado Corporation, a right-of-way
and easements for telephone, telegraph, and communications purposes and the
right to construct, operate, maintain and remove such communication and other
facilities, from time to time, upon, over, under and across a portion of the
subject property, partially described as follows:
An easement TEN (10) feet wide described by a centerline with FIVE (5) feet on
each side as follows:
Commencing North 00 degrees 01'52" West 175 feet along the Section line and
South 89 degrees 51'59" West 1323.06 feet to the East line the West half of the
East half of Section 13, Township 1 South, Range 2 West, Salt Lake Base and
Meridian; thence South 89 degrees 51'59" West 1323.23 feet; thence South 89
degrees 52'06" West 360.24 feet to a point of tangency with a 5699.6 foot
radius curve to the right, said point being 30 feet radially distant Northerly
from the center line of a Northerly frontage road (Frontage Road No. 4) of a
freeway known as Project No. 018-1; thence Westerly 513.96 feet along the arc
of said curve; thence North 84 degrees 22'21" West 483.53 feet along a line
that is not tangent to the preceding curve to a point 35 feet perpendicularly
distant Northerly from the center line of said Northerly frontage road at
Engineer Station 120+00.2; thence Northwesterly 1064.46 feet along the arc of a
1110.9 foot radius curve to the right (Note: tangent to said curve at its point
of beginning bears North 84 degrees 57'54" West); thence North 30 degrees
03'54" West 143.37 feet to a point of tangency with a 353.3 foot radius curve
to the left, said point being point "A" of easement No. 2.
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And subject to the terms and conditions contained therein. Said Right of Way
Easement recorded June 26, 1990, as Entry No. 4933631, in Book 6231, at Page
2205, Salt Lake County Recorder's Office.
(d)Reservation of all minerals and all mineral rights of every kind and
character now known to exist or hereafter discovered, including, without
limiting the generality of the foregoing, oil and gas and rights thereto,
together with the sole, exclusive and perpetual right to explore for, remove
and dispose of said minerals by any means or methods suitable, but without
entering upon or using the surface of the land, and in such manner as not to
damage the surface of the land or to interfere with the use thereof, in favor
of UNION PACIFIC LAND RESOURCES CORPORATION, as Grantor, as created by a
Special Warranty Deed, dated December 27, 1989, recorded December 29, 1989, as
Entry No. 4865483, in Book 6187, at Page 1681, Salt Lake County Recorder's
Office.
(e)Mineral Reservation contained in that certain Quit Claim Deed executed by
the United States of America, acting by and through War Assets Administrator,
which recites in part,
"excepting from this conveyance and reserving to the party of the first part,
in accordance with executive order 9908, approved on December 5, 1947 (12 F.R.
8223), all Uranium, Thorium, and all other materials determined pursuant to
Section 5(b)(1) of the Atomic Energy Act of 1946 (60 Stat. 761), to be
peculiarly essential to the production of fissionable material, contained, in
whatever concentration, in deposits in the lands covered by this instrument are
hereby reserved for the use of the United States, together with the right of
the United States through its authorized agents or representatives at any time
to enter upon the land and prospect for, mine, and remove the same."
Said Quit Claim Deed recorded July 10, 1950, as Entry No. 1207165, in Book 780,
at Page 260, Salt Lake County Recorder's Office.
(f)Subject to underground fiber optic phone line, water line, an existing 6'
chain link right of way fence, and sign for fiber optic cable along the
Southerly boundary line of Parcel 1, and an existing wire fence running through
the Westerly portion of Parcels 1 and 2, as disclosed by a survey prepared by
▇▇▇▇▇▇▇ ENGINEERING, having been certified under the date of November 9, 1995,
by ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, a Registered Land Surveyor holding License No. 171546.
Subject to other easements, restrictions, reservations and rights-of-way of
record, enforceable in law and in equity.
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EXHIBIT 1
STANDARD SPECIFICATIONS
AND TENANT IMPROVEMENTS
1.BUILDING SHELL:
GENERAL REQUIREMENTS
The Building Shell shall include the exterior site work, utility lines
installed within five feet of the exterior walls (other than electric lines as
described below), landscaping, parking and truck court areas, building
foundation systems and slab, walls, and roof system. The Building Shell shall
exclude all interior improvements unless otherwise noted herein.
The total area of the shell and building pad area will be 384,750 square feet.
The shell area will measure 450' 0" by 855' 0". All structural bays are 45' 0"
x 45' 0". The building measures 19 bays long x 10 bays deep. Building clear
height shall be 28' to the bottom of the joist girder at lines 2 and 10; and
32' at the four (4) interior-most bays at lines 4 and 7.
The building shall be a dock-high facility; with the interior floor slab and
all dock doors (except where and as noted as "grade doors") at an elevation of
48" above adjacent exterior grade. All exterior dock areas shall be at grade,
with the truck courts sloping uniformly away from the building at a minimum
rate of 0.25%.
SITE WORK
The site work required shall include, but not be limited to, all necessary
clearing and grubbing of existing vegetative matter and topsoil, excavation and
grading of the site to prepare the building pad; importation of select
structural fill to construct the building pad, provision of positive drainage
of all rainwater and other runoff, underground service site utilities (water,
natural gas, electricity, sanitary sewer, telephone, etc.), truck courts and
parking areas.
All engineering calculations for the design of the building foundations,
building pad, paving sections, and other elements of the Building Shell shall
conform to the recommendations of the geotechnical engineer of record. All
engineered fills and compacted soils shall be tested during placement and/or
compaction by an independent soils testing laboratory licensed in the state of
Utah, who shall certify that all engineered construction conforms to the
contract requirements.
All required testing and certification shall conform to the requirements of the
Salt Lake City Corporation planning, zoning and building departments having
jurisdiction over such matters at the time of execution.
LANDSCAPING
A landscaping allowance of $300,000 has been provided as part of the rent. As
part of the $300,000 total allowance, the $156,000 landscaping credit granted
to Weider by the prior land seller shall be provided to SCI for use as payment
of landscaping and irrigation costs. This credit shall be applied to the
construction payment application at the time these costs are incurred. The
$300,000 landscaping allowance applies to all landscaping and irrigation costs
including soil importation for berming. Weider shall pay all landscaping
amounts exceeding $300,000 pursuant to the Change Order provisions of this
Construction Addendum.
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STANDARD SPECIFICATIONS
Page 2
CONCRETE SLAB FLOORS
The Premises shall include a monolithically poured concrete floor with a
burnished, hard steel trowelled finish. Installation and finishing criteria of
the floors shall conform to the current recommendations of the American
Concrete Institute.
Flatness and levelness criteria of the flat areas (areas other than those
requiring drains and curvature) of the floor shall conform to the following
criteria:
Floor Flatness:F(F) - 35 minimum
Floor Levelness:F(L) - 35 minimum
Concrete slab floors shall be reinforced with a mat of deformed reinforcing
bars placed at mid-depth of the slab as designed by the project structural
engineer. Slabs shall be poured over a prepared base of compacted aggregate
base course material per the recommendations of the project geotechnical
engineer. Concrete strength shall be not less than 4,000 psi.
CONCRETE TRUCK COURTS
The truck courts at the north and south ends of the building shall be 6" thick
cast-in-place concrete slabs, reinforced with #3 deformed reinforcing bars
placed at 18" on center. Sub-base shall be prepared per the recommendations of
the project geotechnical engineer.
ASPHALT PAVING
Asphalt paved areas serving automobile and truck traffic shall be prepared and
paved in strict accordance with the project geotechnical engineer. Pavement
design must be carefully coordinated with the presence of soft soils and a high
water table. All pavement sections are to be reviewed and approved in advance
of construction by the project geotechnical engineer.
ROOF SYSTEM
The roof system shall be comprised of a mechanically-fastened, 45-mil EPDM or
50-mil PVC single-ply membrane, placed over rigid polyisocyanurate insulation
with an average total R-value of 28. Standards for fastening and prevention of
uplift shall conform to I-90 specifications. The roof structure shall slope
1/4" per foot to ensure positive drainage.
Installation of the roofing system shall be inspected according to commercially
reasonable standards by an independent testing laboratory. The testing
laboratory shall be approved by the roofing system manufacturer and SCI.
Written reports shall be issued daily throughout the roofing operation; the
format and information to be contained in these reports shall be subject to the
advance prior review and acceptance by the roofing system manufacturer and SCI.
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STANDARD SPECIFICATIONS
Page 3
MEZZANINE STRUCTURES
The Building Shell shall include the construction of the structural components
of the mezzanine areas. The mezzanine areas shall be defined as the 24,300 sf
Office mezzanine and the 7,584 sf Powders mezzanine. The Building Shell shall
include only related structural steel, masonry and concrete work and shall
exclude all finishes and non-structural installation which shall be part of the
Tenant Improvements.
DOCK DOORS AND EQUIPMENT
The Building Shell shall include manually-operated heavy-duty industrial steel
overhead doors with single-glazed vision panels mounted on heavy-duty steel
"vertical" tracks with torsion spring counterbalances. Dock doors shall be 9'
0" wide by 10' 0" tall and ramp doors shall be 12' 0" wide by 14' 0" tall.
As part of the Building Shell work, Landlord shall provide pits for pit-type
dock revelers as designated on the Schematic Drawing. All dock equipment shall
be a Tenant Improvement.
EXTERIOR FINISHES
The exterior of the building, with the exception of the office component of the
building, shall be of tilt-up concrete construction. Design of the exterior of
the facility shall include not more than five linear, horizontal, chamfered
reveal strips not greater than 0.5 inches deep and 3 inches wide. The exterior
finish of the building shall include an exterior painting system specified for
concrete tilt-up construction, which shall not exceed three (3) colors
designated by Weider and reasonably agreed to by SCI.
The office area of the building is intended to be of steel structural stud,
synthetic plaster, exterior insulation construction ( "Dryvit" or "EIFS") with
banded glazing. The Building Shell shall be limited to the wall and roof
structure and exterior finishes only. All interior finishes in the office
component of the project shall be part of the Tenant Improvements.
FIRE SUPPRESSION SYSTEM
Except as otherwise noted, the fire suppression system shall be part of the
Building Shell. The fire suppression system in the warehouse area shall be an
ESFR sprinkler system designed and installed in accordance with NFPA, UBC and
local ordinances. If required by law, the fire suppression system in the
production areas may incorporate ELO (extra large orifice) heads.
The type of commodity to be stored in the warehouse area of this facility is of
Type 4. All fire hose cabinets and portable fire extinguishers required under
NFPA, UBC and local ordinance shall also be provided as a component of the
shell building. Any underground fire line and associated hydrants that are
required to be placed on-site shall be part of the Building Shell. If required
to deliver and maintain 75 psi system static pressure for the ESFR system, a
pump system (including more than one pump if required) will be a Tenant
Improvement cost.
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STANDARD SPECIFICATIONS
Page 4
Those portions of the fire suppression system directly attributable to the
Tenant Improvements shall be charged against the Tenant Improvements.
ELECTRICAL AND MECHANICAL SYSTEMS
The Building Shell work shall include but be limited to the design and
installation of a 4,000-amp, 480/277-volt, 3-phase main service electrical
system; including main switch gear and a house sub-panel to the electrical
room. All power distribution from the main switchgear to all subpanels shall
be a part of the tenant improvements.
The design and installation of all mechanical and ventilation systems shall be
a part of the Tenant Improvements.
SECURITY, EXTERIOR AND EMERGENCY EXIT LIGHTING
Security, exterior and emergency lighting shall be a part of the Tenant
Improvements.
II.TENANT IMPROVEMENT SPECIFICATIONS:
The tenant improvement funds provided by SCI are intended for use only in the
physical construction of the interior improvements of the facility. Prohibited
uses include but are not limited to costs of moving, furnishings, equipment,
temporary occupancy of other space, and consulting other than for the design
and construction of the project.
It is the intent of the parties that the Tenant Improvement allowance may be
used for interior improvements including the items (other than the Building
Shell items shown above) shown in Interior Specifications section pages 1 - 11
of the Scope of Work document prepared by EDA Architects, dated 01-04-96, a
copy of which is attached as Exhibit 4.
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EXHIBIT 2
ACCESS DATES
NOVEMBER 18
Access to pick-tunnel area from Grids K to V approximately from Grids 5 to 6.5
to begin installation pick tunnel system.
DECEMBER 1
Access to pick tunnel in remaining pick-tunnel area approximately from Grids A
to K and Grids 5 to 6.5 to complete the installation of pick tunnel system.
DECEMBER 15, 1996
Access to the areas reasonably necessary to begin installing exterior tanks and
equipment for the bar production area.
JANUARY 3, 1997
Access to and substantial completion of interior of the bar production area
approximately from Grids A to I and 1 to 3 for installation of mechanical and
electrical systems and for equipment fit-up.
Access to remainder of pick-tunnel and racking area, Grids 3 to 8, A to V.
Access to and substantial completion of Computer Room area.
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Exhibit 3
[DRAWING
WEIDER NUTRITION GROUP
PROPOSED MANUFACTURING FACILITIES]
Exhibit 3 is a one page map of the Company's proposed manufacturing
facilities to be located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇.
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EXHIBIT 4
SCHEDULE OF TENANT DELIVERABLES
MARCH 29, 1996
1. A detailed equipment list showing the following items:
a) equipment layout
b) heat generation
c) electrical load and power requirements - amps, phase and
motor ratings
d) structural requirements and point loads
e) equipment dimensions if not able to pass through doors as
shown on the Schematic Drawings
2. The dimensioned location of floor drains and floor sinks and sloped
areas of concrete
3. Gas and compressed air requirements that impact the structure of the
roofing system and/or floor slab
4. All Production area requirements including conveyors, hoods, ovens,
lab equipment and plumbing requirements
5. All information affecting structural loading requirements of the
mezzanine areas
6. All information affecting structural requirements of the roof system
including dust collectors and any other mechanical systems that may
require enhanced roof structure
7. Identification of all areas with ceilings and specification of ceiling
heights and type
APRIL 1, 1996
A dimensioned office-area schematic plan identifying the size, character and
location of in-slab items including, but not limited to, floor junction boxes
and low-voltage signal raceways
APRIL 8, 1996
A schematic office plan showing room dimensions, doors, any special power or
communications requirements including computer-room requirements, phone, video,
teleconferencing and all other communications requirements and CATV and
security requirements.
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