Attached files
| file | filename |
|---|---|
| 10-Q - UNITED NATURAL FOODS, INC. - UNITED NATURAL FOODS INC | eps3632.htm |
| EX-32.1 - UNITED NATURAL FOODS INC | ex32-1.htm |
| EX-32.2 - UNITED NATURAL FOODS INC | ex32-2.htm |
| EX-31.2 - UNITED NATURAL FOODS INC | ex31-2.htm |
| EX-31.1 - UNITED NATURAL FOODS INC | ex31-1.htm |
| EX-10.65 - UNITED NATURAL FOODS INC | ex10-65.htm |
Exhibit
10.66
[Net
Lease]
LEASE
AGREEMENT
THIS
LEASE AGREEMENT is made this 30th day of September, 2009, between ProLogis (“Landlord”), and the Tenant
named below.
|
Tenant:
|
United Natural Foods,
Inc.
|
||
|
Tenant’s
Representative,
|
|||
|
Address,
and Telephone:
|
|||
|
313 Iron Horse
Way
|
|||
|
Providence, RI
02908
|
|||
|
(401)
528-8634
|
|||
|
Premises:
|
That
portion of the Building, containing approximately 589,870 rentable square feet, as
determined by Landlord, as shown on Exhibit A.
|
||
|
Project:
|
ProLogis Park 20/35 -
Building #2
|
||
|
Building:
|
ProLogis Park 20/35 -
Building #2
|
||
|
2100 Danieldale
Road
|
|||
|
Lancaster, TX 75
134
|
|||
|
Tenant’s
Proportionate Share
of
Project:
|
100.000%
|
||
|
Tenant’s
Proportionate Share
of
Building:
|
100.000%
|
||
|
Lease
Term:
|
Beginning
on the Commencement Date and ending on the last day of the 125th full
calendar month thereafter.
|
||
|
Commencement
Date:
|
March 1,
2010
|
||
|
Initial
Monthly Base Rent:
|
See Addendum
1
|
||
|
Initial
Estimated Monthly
|
1.
Utilities:
|
||
|
Operating
Expense Payments:
|
|||
|
(estimates
only and subject to
|
2.
Common Area Charges:
|
$5,407.14
|
|
|
adjustment
to actual costs and
|
|||
|
expenses
according to the
|
3.
Taxes:
|
$42,274.02
|
|
|
provisions
of this Lease)
|
|||
|
4.
Insurance:
|
$2,949.35
|
||
|
5.
Prop. Mgmt.:
|
$6,390.26
|
||
|
Initial
Estimated Monthly
|
|||
|
Operating
Expense Payments:
|
$57,020.77
|
||
|
Initial
Monthly Base Rent and
|
|||
|
Operating
Expense Payments:
|
$57,020.77
|
||
|
Security
Deposit:
|
$0.00
|
||
-1-
|
Broker:
|
NAI
Huff Partners (Jerry Alexander)
|
|
Addenda:
|
1.
Base Rent Adjustments 2. HVAC Maintenance Contract 3. Move Out Conditions
4. Right of First Refusal to Purchase 5. Option to Surrender 6. Two
Renewal Options at Fixed Rate 7. Storage and Use of Permitted Hazardous
Materials
|
|
Exhibits:
|
A.
Site Plan and Scope of Work B. Rules and Regulations C. Parking
Plan
|
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. Anything in this Lease to the contrary notwithstanding, in the event
Tenant fails to obtain tax and other incentives from the City of Lancaster,
Texas with a minimum value over the Lease Term in an amount equaling at least
$1,705,925 8:00 A.M. local time in Lancaster,
Texas, that Tenant shall have the right to terminate this Lease, provided
written notice of such termination is faxed to Landlord at 972-488-9848 no later
than 11:00 AM local time in Lancaster, Texas on October 20, 2009, Such
termination shall be effective upon Landlord’s receipt of Tenant’s notice to
terminate (“Tax Termination Effective Moment”), Time is of the essence with
regards to Tenant’s delivery of such termination notice with regard to failure
to obtain such tax incentives. In the event Tenant elects to terminate this
Lease as provided above, Landlord and Tenant shall each be relieved of all
obligations under this Lease effective on the Tax Termination Effective Moment.
Furthermore, anything in this Lease to the contrary notwithstanding, in the
event Tenant completes a core sampling of the floor of the Premises and Tenant,
in Tenant’s reasonable judgment, determines that the floor slab is not
sufficient for Tenant’s operations in the Premises, Tenant shall have the right
to terminate this Lease by faxing notice of such termination to Landlord at
972-488-9848 no later than 5:00 PM Eastern time on October 12, 2009 (“Floor
Termination Effective Moment”). Time is of the essence with regards to the
delivery of such notice to terminate as provided in the foregoing with regard to
the floor slab. In the event Tenant elects to terminate this Lease as provided
above, Landlord and Tenant shall each be relieved of all obligations under this
Lease effective on the Floor Termination Effective Moment.
2. Landlord’s Representations and Warranties and
Acceptance of Premises. Landlord hereby warrants to Tenant that as of the
date of this Lease that it has title to the Building in fee simple and that it
has full right and authority to enter into this Lease. Landlord further warrants
to Tenant that, as of the date of this Lease, (i) no written notice has been
received by Landlord of non-compliance with any Legal Requirements in connection
with the Project, (ii) the Project, including all structures thereon, systems
therein and components thereof, is in good condition and repair, and watertight,
(iii) the Building is zoned Light Industrial which to the best of Landlord’s
current actual knowledge allows for the distribution of food products, (iv) no
CC&R’s are in effect with regards to the Project, and (v) the Premises is
accessible by trucks via public roads. The phrase “Landlord’s current, actual
knowledge” shall mean and refer only to the best of the current, actual
knowledge of the officers of Landlord having direct, operational responsibility
for the Project, with the express limitations and qualifications that the
knowledge of any contractor or consultant shall not be imputed to Landlord, and
none of such officers has made any special investigation or inquiry, and none of
such officers has any duty or obligation of diligent investigation or inquiry,
or any other duty or obligation, to acquire or to attempt to acquire information
beyond or in addition to the current, actual knowledge of such persons. Subject
to the foregoing representations and warranties, Tenant shall accept the
Premises in its condition as of the Commencement Date, subject to all applicable
laws, ordinances, regulations, covenants and restrictions. Except as expressly
provided herein, Landlord has made no representation or warranty as to the
suitability of the Premises for the conduct of Tenant’s business, and Tenant
waives any implied warranty that the Premises are suitable for Tenant’s intended
purposes. Except as provided in Paragraph 10, in no event shall Landlord have
any obligation for any defects in the Premises or any limitation on its use. The
taking of possession of the Premises shall be conclusive evidence that Tenant
accepts the Premises and that the Premises were in good condition at the time
possession was taken except for items that are Landlord’s responsibility under
Paragraph 10 and any punchlist items agreed to in writing by Landlord and
Tenant. Landlord shall complete any such punchlist items agreed to in writing by
Landlord and Tenant no later than thirty (30) days following the completion of
such punchlist; provided, however, that in the event Landlord cannot reasonably
complete such punchlist items within the thirty (30) day period Landlord shall
have such time as is reasonably necessary provided Landlord thereafter proceeds
continuously and diligently to complete such punchlist items.
-2-
3. Use. The Premises shall be
used only for the purpose of receiving, storing, shipping and selling (but
limited to wholesale sales) products, materials and merchandise made and/or
distributed by Tenant (including any licensee, subtenants and/or assignee),
light manufacturing/assembly, 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 will not
commit waste, overload the floor or structure of the Premises or subject the
Premises to use that would damage the Premises, excluding from damage, however
normal wear and tear. Tenant shall not permit any objectionable or unpleasant
odors, smoke, dust, gas, noise, or vibrations, as deemed objectionable by a
person acting in a reasonable manner, to emanate from the Premises, or take any
other action that would constitute a nuisance or would disturb, unreasonably
interfere with, or endanger Landlord or any tenants of the Project, in the event
Tenant’s use of the Premises constitute a nuisance as provided above Landlord
shall notify Tenant in writing and Landlord and Tenant shall work in good faith
to mitigate such factors constituting a nuisance or disturbance of other tenants
of the Project. Notwithstanding anything contained herein to the contrary, for
the purpose of determining if any odor generated by Tenant in the ordinary
course of business is a nuisance, any odor generated by Tenant in the ordinary
course of business which is consistent with odors created by food service and
distribution services operated at the highest standards of the industry shall
not be deemed a nuisance. Furthermore, Tenant’s use of trucks in the ordinary
course of Tenant’s business at the Project shall not be deemed a nuisance under
this Lease. Outside storage is prohibited without Landlord’s prior written
consent; provided Tenant shall have the right to park vehicles, which may
contain inventory, overnight at the truck loading docks and parking areas for
the Premises provided such vehicles are in operable condition. In the event any
trucks stored at the Premises are inoperable, such vehicles shall be removed
within 48 hours following receipt of Landlord’s notice. Notwithstanding anything
to the contrary set forth elsewhere in this Lease, Tenant shall have the right
to place and maintain at all times, at Tenant’s sole cost and expense and in
compliance with Legal Requirements, during the Lease Term a picnic area outside
of the Premises at a location to be approved by Landlord, which approval shall
not be unreasonably withheld. Landlord shall have no liability whatsoever in
connection with such picnic area, and Tenant shall indemnify Landlord for any
and all claims arising from the presence and maintenance of such picnic area.
Notwithstanding anything to the contrary set forth elsewhere in this Lease,
Tenant shall have the right to place and maintain at all times, at Tenant’s sole
cost and expense, during the Lease Term in the “truck court” adjoining the
building in which the Premises is located a dumpsters that shall be utilized by
Tenant in connection with its business operations. Landlord shall have no
liability whatsoever in connection with such dumpster, and Tenant shall
indemnify Landlord for any and all claims arising from the presence and
maintenance of such dumpster. Tenant, at its sole expense, shall use and occupy
the Premises in compliance with all laws, including, without limitation, the
Americans With Disabilities Act, orders, judgments, ordinances, regulations,
codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises (collectively, “Legal Requirements”). The
Premises shall not be used as a place of public accommodation under the
Americans with Disabilities Act or similar state statutes or local ordinances or
any regulations promulgated thereunder, all as may be amended from time to time.
In the event that Landlord receives notice that the Premises is not in
compliance with applicable Legal Requirements (as hereinafter defined) existing
as of the Commencement Date and such non-compliance is not related to Tenant’s
specific use of the Premises or Tenant-Made Alterations to the Premises
performed by Tenant, Landlord shall make such modifications as may be required
by order or directive of applicable governmental authority in order to bring the
Premises into compliance with applicable Legal Requirements (as hereinafter
defined) as of the Commencement Date without cost or expense to Tenant and
without including such cost or expense as an Operating Expense. Furthermore, in
the event Landlord receives notice that the Premises is not in compliance with
applicable Legal Requirements which come into effect after the Commencement Date
and such non-compliance is not related to Tenant’s specific use of the Premises
or Tenant-Made Alterations to the Premises performed by Tenant, Landlord shall
make such modifications as may be required by order or directive of applicable
governmental authority in order to bring the Premises into compliance with
applicable Legal Requirements which shall be chargeable to Tenant as an
Operating Expense. Tenant shall, at its expense, make any alterations or
modifications, within or without the Premises, that are required by Legal
Requirements related to Tenant’s use or occupation of the Premises. Tenant will
not use or permit the Premises to be used for any purpose or in any manner that
would void Tenant’s or Landlord’s insurance or cause the disallowance of any
sprinkler credits. If any increase in the cost of any insurance on the Premises
or the Project is caused by Tenant’s use or occupation of the Premises, or
because Tenant vacates the Premises, then Tenant shall pay the amount of such
increase to Landlord. Subject to applicable ordinances and building codes
governing Tenant’s right to occupy or perform in the Premises, Tenant shall
be
-3-
allowed
to install its tenant improvements, machinery, equipment, fixtures, or other
property in the Premises commencing on the date which is ten (10) calendar days
following the date of full execution of this Lease provided any such occupancy
or performance in the Premises shall be in accordance with the provisions
governing Tenant-Made Alterations and Trade Fixtures in the Lease, shall be
subject to Tenant providing to Landlord satisfactory evidence of insurance for
personal injury and property damage related to such installations and
satisfactory payment arrangements with respect to installations permitted
hereunder, and such occupation of the Premises by Tenant prior to the
Commencement Date shall be subject to all obligations of Tenant under this Lease
except for the payment of Base Rent or Operating Expenses.
4. Base Rent. Tenant shall pay
Base Rent in the amount set forth in Addendum 1. The first
month’s Base Rent and the first monthly installment of estimated Operating
Expenses (as hereafter defined) shall be due and payable on the date hereof, and
Tenant promises to pay to Landlord in advance, without demand, deduction or
set-off, monthly installments of Base Rent by Tenant’s corporate check 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 (or to such other
party as Landlord may from time to time specify in writing) shall be made at
such place, within the continental United States, as Landlord may from time to
time designate to Tenant in, writing. The obligation of Tenant to pay Base Rent
and other sums to Landlord and the obligations of Landlord under this Lease are
independent obligations. Except as expressly provided in this Lease, Tenant
shall have no right at any time to abate, reduce, or set-off any rent due
hereunder except as may be expressly provided in this Lease. If Tenant is
delinquent in any monthly installment of Base Rent or of Operating Expenses
beyond 5 days after the due date thereof, and after notice as provided below,
Tenant shall pay to Landlord on demand a late charge equal to 5 percent of such
delinquent sum. Tenant shall not be obligated to pay the late charge until
Landlord has given Tenant 5 days written notice of the delinquent payment (which
may be given at any time during the delinquency); provided, however, that such
notice shall not be required more than twice in any 12-month period. 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
or as limiting Landlord’s remedies in any manner.
5. Security Deposit.
[Intentionally Omitted]
6. Operating Expense Payments.
During each month of the Lease Term, on the same date that Base Rent is due,
Tenant shall pay Landlord an amount equal to 1/12 of the annual cost, as
estimated by Landlord from time to time, of Tenant’s Proportionate Share
(hereinafter defined) of Operating Expenses for the Project. Payments thereof
for any fractional calendar month shall be prorated. The term “Operating
Expenses” means all costs and expenses incurred by Landlord with respect to the
ownership, maintenance, and operation of the Project including, but not limited
to costs of: Taxes (hereinafter defined); an annual consulting fee for
determining whether or not to contest Taxes for the Project not to exceed
$500.00 per year; reasonable fees payable to tax consultants and attorneys for
contesting taxes provided such fees are payable on a contingency fee basis
except for standard expenses such as filing fees, postage/courier fees, and
other standard administrative expenses; utilities; maintenance, repair and
replacement of all portions of the Project, including without limitation, paving
and parking areas, roads, non-structural components of roofs (including the roof
membrane), alleys, and driveways, mowing, landscaping, snow removal, exterior
painting, utility lines, heating, ventilation and air conditioning systems,
lighting, electrical systems and other mechanical and building systems; amounts
paid to contractors and subcontractors for work or services performed in
connection with any of the foregoing; charges or assessments of any association
to which the Project is subject; property management fees payable to a property
manager, including any affiliate of Landlord, which fees at this time shall not
exceed three (3%) of gross receipts due and payable under this Lease (excluding
Taxes), or if there is no properly manager, an administration fee of 10 percent
of Operating Expenses payable to Landlord; security services, if any; trash
collection, sweeping and removal; and additions or alterations made by Landlord
to the Project or the Building in order to comply with Legal Requirements (other
than those expressly required herein to be made by Tenant or by Landlord as
provided in Paragraph 3) or that are necessary for the continued use and
operation of the Project or the Building as a bulk warehouse facility in the
market area, provided that the cost of additions or alterations that are
required to be capitalized for federal income tax purposes shall be amortized on
a straight line basis over a period equal to the lesser of the useful life
thereof for federal income tax purposes or 10 years. Operating Expenses do not
include costs, expenses, depreciation or amortization for capital repairs and
capital replacements required to be made by Landlord under Paragraph 10 of this
Lease, debt service under mortgages or ground rent under ground leases, costs of
restoration to the extent of net insurance proceeds received by Landlord with
respect thereto, leasing commissions, or the costs of renovating space for
tenants.
-4-
If
Tenant’s total payments of Operating Expenses for any year are less than
Tenant’s Proportionate Share of actual Operating Expenses for such year, then
Tenant shall pay the difference to Landlord within 30 days after demand, and if
more, then Landlord shall retain such excess and credit it against Tenant’s next
payments. For purposes of calculating Tenant’s Proportionate Share of Operating
Expenses, a year shall mean a calendar year except the first year, which shall
begin on the Commencement Date, and the last year, which shall end on the
expiration of this Lease. With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant’s “Proportionate Share” shall be the
percentage set forth on the first page of this Lease as Tenant’s Proportionate
Share of the Project as reasonably adjusted by Landlord in the future for
changes in the physical size of the Premises or the Project; and, with respect
to Operating Expenses which Landlord allocates only to the Building, Tenant’s
“Proportionate Share” shall be the percentage set forth on the first page of
this Lease as Tenant’s Proportionate Share of the Building as reasonably
adjusted by Landlord in the future for changes in the physical size of the
Premises or the Building. Landlord may equitably increase or decrease Tenant’s
Proportionate Share, as applicable, for any item of expense or cost reimbursable
by Tenant that relates to a repair, replacement, or service that benefits only
the Premises or only a portion of the Project or Building that includes the
Premises, or that is completely unrelated to the Premises, or that varies with
occupancy or use. With respect to the foregoing sentence, Landlord must provide
reasonable supporting documentation for any increase or decrease. The estimated
Operating Expenses for the Premises set forth on the first page of this Lease
are only estimates, and Landlord makes no guaranty or warranty that such
estimates will be accurate.
Notwithstanding
anything contained in this Lease to the contrary, for the purpose of calculating
Tenant’s reimbursement of Operating Expenses from the period commencing on the
Commencement Date and ending on December 31, 2010, Tenant’s Proportionate Share
of the Building shall be 59.98% and Tenant’s Proportionate Share of the Project
shall be 59.98%.
Tenant
shall not be obligated to pay for Controllable Operating Expenses in any year to
the extent they have increased by more than six percent (6%) per annum,
compounded annually on a cumulative basis from actual Controllable Operating
Expenses applicable to the Premises during the 2011 calendar year. For purposes
of this Paragraph, Controllable Operating Expenses shall mean all Operating
Expenses as set forth in this Paragraph 6 of the Lease, except for Taxes,
insurance premiums, costs in connection with adverse weather conditions, and
utility costs. Controllable Operating Expenses shall be determined on an
aggregate basis and not on an individual basis, and the cap on Controllable
Operating Expenses shall be determined on Operating Expenses as they have been
adjusted for vacancy or usage pursuant to the terms of the Lease.
7. Utilities. Tenant shall pay
for all water, gas, electricity, heat, light, power, telephone, sewer, sprinkler
services, refuse and trash collection, and other utilities and services used on
the Premises, 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 Tenant’s use of the Premises. Landlord may cause at Tenant’s
expense any utilities to be separately metered or charged directly to Tenant by
the provider. Tenant shall pay its share of all charges for jointly metered
utilities based upon consumption, as reasonably determined by Landlord. No
interruption or failure of utilities shall result in the termination of this
Lease or the abatement of rent.
Notwithstanding
anything contained herein to the contrary, in the event that such interruption
or cessation of utilities results from Landlord’s negligent or willful act or
omission continues beyond two (2) business days from the date of such
interruption or cessation, then, provided Tenant has delivered Landlord with
prompt notice of such interruption, the rent under this Lease will abate,
commencing on the second (2nd) business day the Premises remain untenantable,
and continuing until the dare on which the utilities are restored and the
Premises are again tenantable. No abatement of rentals as hereinabove described
will apply in the event such interruption of utilities is the result of Tenant’s
alterations to the Premises, or any negligent act or omission of Tenant, its
agents, employees or contractors, or any cause other than the negligent or
willful act or omission of Landlord or its employees, agents or
contractors.
-5-
Landlord
represents that as of the Commencement Date the Premises is services by
municipal water service and furthermore, Landlord represents to Tenant that to
the best of Landlord’s current, actual knowledge that there are no restrictions
on the use of such water service. The phrase “current, actual knowledge of
Landlord” shall mean and refer only to the best of the current, actual knowledge
of the officers of Landlord having direct, operational responsibility for the
Project, with the express limitations and qualifications that the knowledge of
any contractor or consultant shall not be imputed to Landlord, and none of such
officers has made any special investigation or inquiry, and none of such
officers has any duty or obligation of diligent investigation or inquiry, or any
other duty or obligation, to acquire or to attempt to acquire information beyond
or in addition to the current, actual knowledge of such persons.
8. Taxes. Landlord shall pay all
taxes, assessments and governmental charges (collectively referred to as
“Taxes”) that accrue against the Project during the Lease Term, which shall be
included as part of the Operating Expenses charged to Tenant. Landlord may
contest by appropriate legal proceedings the amount, validity, or application of
any Taxes or liens 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 (including the Texas Margins Tax) and/or the Project or any portion
thereof shall be paid by Tenant to Landlord as an Operating Expenses; provided,
however, in no event shall Tenant be liable for any net income taxes imposed on
Landlord unless such net income taxes are in substitution for any Taxes payable
hereunder. lf any such tax or excise is levied or assessed directly against
Tenant, upon Tenant’s receipt of notice of such tax then Tenant shall be
responsible for and shall pay the same at such times and in such manner as the
taxing authority shall require. Tenant shall be liable for all taxes levied or
assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant.
9. Insurance. Landlord shall
maintain all risk property insurance covering the full replacement cost of the
Building. Landlord may, but is not obligated to, maintain such other insurance
and additional coverages as it may deem necessary, including, but not limited
to, commercial liability insurance and rent loss insurance, provided such other
insurance is customary in the market where the Premises is located for similarly
situated landlords of similar properties. All such insurance shall be included
as part of the Operating Expenses charged to Tenant. The Project or Building may
be included in a blanket policy (in which case the cost of such insurance
allocable to the Project or Building will be determined by Landlord based upon
the insurer’s cost calculations). Tenant shall also reimburse Landlord for any
increased premiums or additional insurance which Landlord reasonably deems
necessary as a result of Tenant’s use of the Premises.
Tenant,
at its expense, shall maintain during the Lease Term: all risk property
insurance covering the full replacement cost of all property and improvements
installed or placed in the Premises by Tenant at Tenant’s expense; 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; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 (together with such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths of persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in any
such limits, 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 fire 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.
The
all risk property insurance obtained by Landlord and Tenant shall include a
waiver of subrogation by the insurers and all rights based upon an assignment
from its insured, against Landlord or Tenant, their officers, directors,
employees, managers, agents, invitees and contractors, in connection with any
loss or damage thereby insured against. Neither party nor its officers,
directors, employees, managers, agents, invitees or contractors shall be liable
to the other for loss or damage caused by any risk coverable by all risk
property insurance, and each party waives any claims against the other party,
and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees
and
-6-
contractors
shall not be liable for, and Tenant hereby waives all claims against such
parties for, business interruption losses sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence in or upon the
Premises or the Project from any cause whatsoever, including without limitation,
damage caused in whole or in part, directly or indirectly, by the negligence of
Landlord or its agents, employees or contractors. Tenant and its agents,
employees and contractors shall not be liable for, and Landlord hereby waives
all claims against such parties for, rental losses sustained by Landlord or any
person claiming through Landlord resulting from any accident or occurrence in or
upon the Premises or the Project from any cause whatsoever, including without
limitation, damage caused in whole or in part, directly or indirectly, by the
negligence of Tenant or its agents, employees or contractors.
Landlord
represents and warrants that as of the date hereof it has not received any
notice from any insurer of coverage maintained by Landlord requiring
modifications or work to be performed on the Premises as a condition to the
maintenance or renewal of any such policies of insurance with respect to the
Premises.
10. Landlord’s Repairs. Landlord
shall maintain, at its expense, the structural soundness of the roof,
foundation, and exterior walls of the Building in good repair, reasonable wear
and tear and uninsured losses and damages caused by Tenant, its agents and
contractors excluded. The term “walls” as used in this Paragraph 10 shall not
include windows, glass or plate glass, doors or overhead doors, special store
fronts, dock bumpers, dock plates or levelers, or office entries. Tenant shall
promptly give Landlord written notice of any repair required by Landlord
pursuant to this Paragraph 10, after which Landlord shall have a reasonable
opportunity to repair.
In
the event of an emergency (being defined as an imminent threat of personal
injury to Tenant’s employees, material damage to Tenant’s equipment or other
property at the Premises, or a material impact on Tenant’s operations at the
Premises), Tenant shall have the right to make such temporary, emergency repairs
to the roof, foundation, floors and exterior walls of the building of which the
Premises are a part, or the roof membrane, skylights, roof vents, drains and
downspouts of the Project, and the exterior and under slab utility systems for
the Project, as may be reasonably necessary to prevent such material damage to
the equipment or property of Tenant situated in the Premises, or such personal
injury to Tenant’s employees, provided Tenant has no reasonable alternative and
has notified or attempted in good faith to notify Landlord’s representative of
such emergency by telephone (with subsequent written notice as soon as
practicable). The provisions of this paragraph do not constitute an
authorization by Landlord for Tenant to enter the premises of any other tenant
of the Project, and Tenant has not been designated as Landlord’s agent for the
purposes of any such entry. Landlord shall reimburse Tenant for the reasonable,
out-of-pocket costs incurred by Tenant in making such emergency repairs to the
roof, foundation or exterior walls, as applicable within thirty (30) days after
submission by Tenant to Landlord of an invoice therefore, accompanied by
reasonable supporting documentation for the costs so incurred. In the event
Landlord fails or refuses to reimburse Tenant for such costs within such thirty
(30) day period and Tenant brings an action for recovery of such amounts from
Landlord as provided for in this Lease, then Tenant shall be entitled to
recover, in addition to the amount of such costs, interest on such amounts from
the date incurred by Tenant until recovered from Landlord, at the rate provided
in Paragraph 37(j) of this Lease, and the reasonable attorneys’ fees and other
costs of court incurred by Tenant in pursuing such action.
11. Tenant’s Repairs. Landlord, at
Tenant’s expense to be passed through as an Operating Expenses as provided in
Paragraph 6, shall maintain in good repair and condition the parking areas and
other common areas of the Building, including, but not limited to driveways,
alleys, landscape and grounds surrounding the Premises, as well as all systems
which are located outside of the Premises except as provided below. Subject to
Landlord’s obligations above in this Paragraph 11, in Paragraph 10 and subject
to Paragraphs 9 and 15, Tenant, at its expense, shall repair, replace and
maintain in good condition all portions of the Premises and all areas,
improvements and systems exclusively serving the Premises which are located in
the Premises (except for the heating, ventilation, and air conditioning systems
which may be located outside of the Premises), including, without limitation,
dock and loading areas, truck doors, plumbing, water and sewer lines located in
the Premises, fire sprinklers and fire protection systems, entries, doors,
ceilings, windows, interior walls, and the interior side of demising walls, and
heating, ventilation and air conditioning systems. Such repair and replacements
include capital expenditures and repairs whose benefit may extend beyond the
Term, provided in all events Landlord shall complete such capital repairs and
such capital expenditures shall be fully amortized in accordance with the
Formula (defined hereafter) and reimbursed to Landlord over the remainder of the
Lease Term, without regard to any extension or renewal option not then
exercised. The “Formula” shall mean that number, the numerator of
which
-7-
shall
be the number of months of the Lease Term remaining after such capital
expenditures, and the denominator of which shall be the amortization period (in
months) equal to the useful life of such repair or replacement multiplied by the
cost of such capital expenditure or repair. Landlord shall pay for such capital
expenditures and repairs and Tenant shall reimburse Landlord for its amortized
share of same (determined as hereinabove set forth) in equal monthly
installments in the same manner as the payment by Tenant to Landlord of the
Operating Expenses. In the event Tenant extends the Lease Term either by way of
an option or negotiated extension, such reimbursement by Tenant shall continue
as provided above until such amortization period has expired. Heating,
ventilation and air conditioning systems and other mechanical and building
systems serving the Premises shall be maintained at Tenant’s expense pursuant to
maintenance service contracts entered into by Tenant or, in the event Tenant
fails to maintain as provided herein by Landlord upon thirty (30) days prior
written notice to Tenant. The scope of services and contractors under such
maintenance contracts shall be reasonably approved by Landlord. If Tenant fails
to perform any repair or replacement for which it is responsible, Landlord may
perform such work and be reimbursed by Tenant within 10 days after demand
therefor. Subject to Paragraphs 9 and 15, Tenant shall bear the full cost of any
repair or replacement to any part of the Building or Project that results from
damage caused by Tenant, its agents, contractors, or invitees and any repair
that benefits only the Premises.
Landlord
agrees to enforce to Tenant’s benefits any guarantees an warranties, if any,
which relate to any maintenance or repair to be completed by Tenant above or
which are to be completed by Landlord at Tenant’s expense as an Operating
Expense as provided above. Notwithstanding anything contained in this Lease,
Tenant shall have no responsibility for latent defects in the initial
construction of the Building or Project and costs to correct such latent defects
shall not be passed through to Tenant as an Operating Expense.
12. Tenant-Made Alterations and Trade
Fixtures. Any alterations, additions, or improvements made by or on
behalf of Tenant to the Premises (“Tenant-Made Alterations”) shall be subject to
Landlord’s prior written consent, Tenant shall cause, at its expense, all
Tenant-Made Alterations to comply with insurance requirements and with Legal
Requirements and shall construct at its expense any alteration or modification
required by Legal Requirements as a result of any Tenant-Made Alterations. All
Tenant-Made Alterations shall be constructed in a good and workmanlike manner by
contractors reasonably acceptable lo Landlord and only good grades of materials
shall be used. All plans and specifications for any Tenant-Made Alterations
shall be submitted to Landlord for its approval, which shall not be unreasonably
withheld or delayed. Notwithstanding anything contained herein to the contrary,
Landlord shall either approve or disapprove, as the case may be, Tenant’s
request for approval to complete Tenant-Made Alterations to the Premises within
10 business days after receipt of Tenant’s plans and specifications for such
Tenant-Made Alterations, provided that such plans and specifications, in
Landlord’s commercially reasonable judgment, contain sufficient and complete
information to effectuate Landlord’s approval hereunder. If Landlord rejects
such plans and specifications Landlord must do so with specificity and Tenant
shall have an opportunity to resubmit such plans and specifications and each
resubmission shall be subject to the foregoing procedures. Landlord may monitor
construction of the Tenant-Made Alterations. Tenant shall reimburse Landlord for
its costs in reviewing plans and specifications and in monitoring construction,
not to exceed $1,000 for each project. Landlord’s right to review plans and
specifications and to 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 applicable laws, codes, rules and regulations. Tenant
shall provide Landlord with the identities and mailing addresses of all persons
performing work or supplying materials, prior to beginning such construction,
and Landlord may post on and about the Premises notices of non-responsibility
pursuant to applicable law. Tenant shall provide to Landlord certificates of
insurance from all contractors and subcontractors who work on the Tenant-Made
Alterations for worker’s compensation and other coverage in amounts and from an
insurance company satisfactory to Landlord protecting Landlord against liability
for personal injury or property damage during construction. Upon completion of
any Tenant-Made Alterations, Tenant shall deliver to Landlord final lien waivers
from all such contractors and subcontractors. Upon surrender of the Premises,
all Tenant-Made Alterations and any leasehold improvements constructed by
Landlord or Tenant shall remain on the Premises as Landlord’s property, except
to the extent Landlord requires removal at Tenant’s expense of any such items or
Landlord and Tenant have otherwise agreed in writing in connection with
Landlord’s consent to any Tenant-Made Alterations. Upon Tenant’s written
request, Landlord shall provide Tenant, at the time of Tenant’s request for
approval of Tenant-Made Alterations, a list of which Tenant-Made Alterations
Landlord will require Tenant to remove upon surrender of the Premises. Tenant
shall repair any damage caused by such removal.
-8-
Tenant,
at its own cost and expense and without Landlord’s prior approval, may erect
such shelves, bins, machinery and trade fixtures (collectively “Trade Fixtures”)
in the ordinary course of its business provided that such items do not alter the
basic character of the Premises, do not overload or damage the Premises, and may
be removed without injury to the Premises, and the construction, erection, and
installation thereof complies with all Legal Requirements and with Landlord’s
requirements set forth above. Tenant shall remove its Trade Fixtures and shall
repair any damage caused by such removal.
Notwithstanding
anything contained herein to the contrary, Landlord shall contribute up to a
maximum amount of $1,900,000.00 (the “TI Allowance”), toward the initial
Tenant-Made Alterations to the Premises, which such payment shall be made by
Landlord to Tenant within 30 days following Landlord’s receipt of Tenant’s
invoice substantiating the costs related to Tenant-Made Alterations which costs
equal at least $1,900,000.00 (which may include an invoice from the general
contractor). Notwithstanding anything contained herein, Tenant shall have an
obligation to deliver to Landlord final lien waivers from all contractors and
sub-contractors who work on the initial Tenant-Made Alterations upon the
completion of the initial Tenant-Made Alterations. Landlord shall be under no
obligation to pay for any Tenant-Made Alterations to the Premises in excess of
the TI Allowance. Further, such TI Allowance shall only be available for
Tenant’s use through August 31, 2010, and Tenant hereby waives any and all
rights to any unused portion of the TI Allowance remaining as of September 1,
2010. Notwithstanding anything contained herein to the contrary, in the event
Landlord sells the Building, or assigns this Lease (including a collateral
assignment) prior to August 31, 2010, Landlord shall escrow any amount of the TI
Allowance remaining as of the date of such sale of the Building or assignment of
this Lease, which escrow shall provide that Tenant may draw down on such escrow
amount upon delivery of invoices substantiating the costs related to the
Tenant-Made Alterations as provided above.
Subject
to Landlord’s review and approval of the plans and specifications related
thereto, Landlord hereby agrees to permit Tenant to install a photovoltaic
system, including solar roof panels, on the roof of the Premises; provided such
system does not adversely impact the structural integrity of the Building. The
installation, maintenance, and repair of such systems shall be at Tenant’s sole
cost and expense. Tenant agrees and understands that Landlord may require
conditions to such installation, including, but not limited to, no penetrations
of the roof membrane, system shall be architecturally screened and secured and
not visible from the street, Landlord shall have the right to oversee such
installation, and all electricity generated by the systems shall be used by
Tenant and not sold to other tenant’s in the Project or to utility
companies.
13. Signs. Tenant shall not make
any changes to the exterior of the Premises, install any exterior lights,
decorations, balloons, flags, pennants, banners, or painting, or erect or
install any signs, windows or door lettering, placards, decorations, or
advertising media of any type which can be viewed from the exterior of the
Premises, without Landlord’s prior written consent. Upon surrender or vacation
of the Premises, Tenant shall have removed all signs and repair, paint, and/or
replace the building facia surface to which its signs are attached. Tenant shall
obtain all applicable governmental permits and approvals for sign and exterior
treatments. All signs, decorations, advertising media, blinds, draperies and
other window treatment or bars or other security installations visible from
outside the Premises shall be subject to Landlord’s approval and conform in all
respects to Landlord’s requirements. Notwithstanding the foregoing, Tenant shall
have the right to install signage on the exterior wall of the Building at its
sole cost and expense and subject to Landlord’s approval of the design, size and
location of such signage, which consent shall not be unreasonably withheld
provided such signage is consistent with approved signage of other tenants of
the Project.
14. Parking. Tenant shall be
entitled to the exclusive use of all parking areas serving the Premises.
Landlord shall not be responsible for enforcing Tenant’s parking rights against
any third parties. Notwithstanding the foregoing to the contrary, in the event
Tenant exercises its right to surrender the Surrender Premises 1 as provided in
Addendum 5 then the foregoing shall automatically be amended such that Tenant’s
parking rights shall a be as provided in Exhibit C (Phase I Parking) and in the
event Tenant exercises its right to surrender the Surrender Premises 2,as
provided in Addendum 5 then the foregoing shall automatically be amended such
that Tenant’s parking rights shall be as provided in Exhibit C (Phase II
Parking).
-9-
15. Restoration. If at any time
during the Lease Term the Premises are damaged by a fire or other casualty,
Landlord shall notify Tenant within 60 days after such damage as to the amount
of time Landlord reasonably estimates it will take to restore the Premises. If
the restoration time is estimated to exceed 6 months, either Landlord or Tenant
may elect to terminate this Lease upon notice to the other party given no later
than 30 days after Landlord’s notice. If neither party elects to terminate this
Lease or if Landlord estimates that restoration will take 6 months or less,
then, subject to receipt of sufficient insurance proceeds, Landlord shall
promptly restore the Premises excluding the improvements installed by Tenant or
by Landlord and paid by Tenant, subject to delays arising from the collection of
insurance proceeds or from Force Majeure events. Tenant at Tenant’s expense
shall promptly perform, subject to delays arising from the collection of
insurance proceeds, or from Force Majeure events, all repairs or restoration not
required to be done by Landlord and shall promptly re-enter the Premises and
commence doing business in accordance with this Lease, Notwithstanding the
foregoing, either party may terminate this Lease if the Premises are damaged
during the last nine months of the Lease Term and Landlord reasonably estimates
that it will take more than one month to repair such damage. Base Rent and
Operating Expenses shall be abated for the period of repair and restoration in
the proportion which the area of the Premises, if any, which is not usable by
Tenant bears to the total area of the Premises. Such abatement shall be the sole
remedy of Tenant, and except as provided herein, Tenant waives any right to
terminate the Lease by reason of damage or casualty loss.
16. Condemnation. If Landlord
shall receive written notice from any third party with condemning authority of
such party’s intent to condemn any part of the Premises or the Project 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 or in Landlord’s judgment would materially interfere with or
impair its operation of the Project, then upon written notice by Landlord this
Lease shall terminate and Base Rent shall be apportioned as of said date. 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 Tenant’s Trade Fixtures, if a
separate award for such items is made to Tenant.
17. 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 such
ownership interests are publicly traded. 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. Upon Landlord’s receipt of Tenant’s
written notice of a desire to assign the Lease or sublet the entire Premises
(other than to a Tenant Affiliate), Landlord may, by giving written notice to
Tenant within 30 days after receipt of Tenant’s notice, terminate this Lease, as
of the date specified in Tenant’s notice for the commencement of the proposed
assignment or sublease. Landlord and Tenant shall be relieved of all obligations
accruing under this Lease after the effective date of such termination but not
any obligations accruing under the Lease prior to the effective date of such
termination.
Notwithstanding
any assignment or subletting, 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
one half of all such excess rental and other excess consideration (after
deducting standard tenant improvements, reasonable brokerage fees, and
reasonable attorney’s fees) within 10 days following receipt thereof by
Tenant.
-10-
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 seek to 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.
18. Indemnification. Except for
the negligence or willful misconduct of Landlord, its agents, employees or
contractors, and to the extent permitted by law, Tenant agrees to indemnify,
defend and hold harmless Landlord, and Landlord’s 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 Project 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 this Paragraph 18.
Except
for the negligence or willful misconduct of Tenant, its agents, employees or
contractors, and to the extent permitted by law, Landlord agrees to indemnify,
defend and hold harmless Tenant, and Tenant’s 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 Project or arising from any activity, work, or thing
done, permitted or suffered by Landlord in or about the Project or due to any
other act or omission of Landlord, its assignees, invitees, employees,
contractors and agents. The furnishing of insurance required hereunder shall not
be deemed to limit Landlord’s obligations under this Paragraph 18.
If
a claim under the foregoing indemnity is made against the indemnitee which the
indemnitee believes to be covered by an indemnitor’s indemnification obligations
hereunder, the indemnitee shall promptly notify the indemnitor of the claim and,
in such notice shall offer to the indemnitor the opportunity to assume the
defense of the claim within 10 business days after receipt of the notice (with
counsel reasonably acceptable to the indemnitee). If the indemnitor timely
elects to assume the defense of the claim, the indemnitor shall have the right
to settle the claim on any terms it considers reasonable and without the
indemnitee’s prior written consent, as long as the settlement shall not require
the indemnitee to render any performance or pay any consideration, and the
indemnitee shall not have the right to settle any such claim. If the indemnitor
fails timely to elect to assume the defense of the claim or fails to defend the
claim with diligence, then the indemnitee shall have the right to take over the
defense of the claim and to settle the claim on any terms the indemnitee
considers reasonable. Any such settlement shall be valid as against the
indemnitor. If the indemnitor assumes the defense of a claim, the indemnitee may
employ its own counsel but such employment shall be at the sole expense of the
indemnitee. If any such claim arises out of the negligence of both Landlord and
Tenant, responsibility for such claim shall be allocated between Landlord and
Tenant based on their respective degrees of negligence.
This
indemnity does not cover claims arising from the presence or release of
Hazardous Materials.
19. Inspection and Access. Upon
reasonable prior notice, except in the event of an emergency in which case no
notice shall be required, Landlord and its agents, representatives, and
contractors may enter the Premises at any reasonable time to inspect the
Premises and to make such repairs as may be required or permitted pursuant to
this Lease and for any other business purpose. Upon reasonable prior notice,
Landlord and Landlord’s representatives may enter the Premises during business
hours for the purpose of showing the Premises to prospective purchasers and,
during the last year of the Lease Term, to prospective tenants. Landlord may
erect a suitable sign on the Premises stating the Premises are available to let
or that the Project is available for sale. Landlord may grant easements, make
public dedications, designate common areas and create restrictions on or about
the Premises, provided that no such easement, dedication, designation or
restriction reduces the Premises or interferes in any way 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, dedications or restrictions;
provided such instrument meets the foregoing conditions.
-11-
20. 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.
21. 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 casualty loss and condemnation covered
by Paragraphs 15 and 16 excepted. Any Trade Fixtures which Tenant has not
removed, or any Tenant-Made Alterations which Tenant was required to remove
pursuant to the provisions of Paragraph 12 but has not removed, shall be deemed
abandoned and may be stored, removed, and disposed of by Landlord at Tenant’s
expense, and Tenant waives all claims against Landlord for any damages resulting
from Landlord’s retention and disposition of such property. All obligations of
Tenant hereunder not fully performed as of the termination of the Lease Term
shall survive the termination of the Lease Term, including without limitation,
indemnity obligations, payment obligations with respect to Operating Expenses
and obligations concerning the condition and repair of the
Premises.
22. Holding Over. If 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 one and one half times 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 22 shall
not be construed as consent for Tenant to retain possession of the Premises. For
purposes of this Paragraph 22, “possession of the Premises” shall continue
until, among other things, Tenant has delivered all keys to the Premises to
Landlord, Landlord has complete and total dominion and control over the
Premises, and Tenant has completely fulfilled all obligations required of it
upon termination of the Lease as set forth in this Lease, including, without
limitation, those concerning the condition and repair of the
Premises.
23. Events of Default. Each of the
following events shall be an event of default (“Event of Default”) by Tenant
under this Lease:
(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 5 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 case,
proceeding or other action seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it as bankrupt or insolvent, 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 (collectively a “proceeding for relief”); (C) become the subject of any
proceeding for relief 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.
-12-
(iv) Tenant
shall abandon the Premises, whether or not Tenant is in monetary or other
default under this Lease, Tenant’s vacating of the Premises shall not constitute
an Event of Default if, prior to vacating the Premises, Tenant has made
arrangements reasonably acceptable to Landlord to (a) ensure that Tenant’s
insurance for the Premises will not be voided or cancelled with respect to the
Premises as a result of such vacancy, (b) ensure that the Premises are secured
and not subject to vandalism, and (c) ensure that the Premises will be properly
maintained after such vacation. Tenant shall inspect the Premises at least once
each month and report monthly in writing to Landlord on the condition of the
Premises.
(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, or bond over, any lien placed upon the Premises in
violation of this Lease within 30 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 23, and except as otherwise expressly
provided herein, such default shall continue for more than 30 days after
Landlord shall have given Tenant written notice of such default; provided,
however, that Tenant shall not be in default. under the circumstances described
in this subparagraph 23 (vii) if Tenant has made diligent efforts to cure such
default within the thirty (30) day period described therein, and thereafter
proceeds continuously and diligently to cure such default within a commercially
reasonable time.
24. 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: terminate this
Lease or Tenant’s right of possession, (but Tenant shall remain liable as
hereinafter provided) and/or pursue any other remedies 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 reasonable cost of reletting the whole or any part of the
Premises, including without limitation reasonable brokerage fees and/or
reasonable leasing commissions incurred by Landlord, and costs of removing and
storing Tenant’s or any other occupant’s property, repairing, altering,
remodeling, or otherwise putting the Premises into the condition required by
Tenant under this Lease, and all reasonable expenses incurred by Landlord in
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 Landlord can reasonably
expect to recover by reletting the Premises for such period based on comparable
lease transactions in the market which the Project is located which involve
space which is comparable to the Premises in buildings which are comparable to
the Building 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 bill rate at the
date of such termination.
If
Landlord terminates Tenant’s right to possession (but not this Lease) without
terminating the Lease after an Event of Default, Landlord shall use commercially
reasonable efforts to relet the Premises without thereby releasing Tenant from
any liability hereunder and without demand or notice of any kind to Tenant;
provided, however, (a) Landlord shall not be obligated to accept any tenant
proposed by Tenant, (b) Landlord shall have the right to lease any other space
controlled by Landlord first, and (c) any proposed tenant shall meet all of
Landlord’s leasing criteria. For the purpose of such reletting Landlord is
authorized to make any repairs, changes, alterations, or additions in or to the
Premises to put the Premises in the condition required by Tenant under this
Lease. 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 as such becomes due, plus the cost of recovering possession of
the Premises (including attorneys’ fees and costs
-13-
of
suit), the unpaid Base Rent and other amounts accrued hereunder at the time of
repossession, and the reasonable 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 pay any such deficiency as it comes due. 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 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 sole 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 and leasing any or all other
portions of the Project before reletting the Promises). Landlord shall not be
liable, nor shall Tenant’s obligations hereunder be diminished because of,
Landlord’s failure to relet the Premises, provided Landlord uses reasonable
efforts as provided above, or collect rent due in respect of such
reletting.
25. Tenant’s Remedies/Limitation of
Liability. Landlord shall not be in default hereunder unless any
representation or warranty of Landlord proves false in any material respect or
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). 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 this Lease for Landlord’s default. Notwithstanding
anything to the contrary contained herein, if a default by Landlord shall occur,
Tenant may pursue any legal or equitable remedies, including without limitation
termination of this Lease. 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. 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 Project, 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.
26. 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.
-14-
27. Subordination. This Lease and
Tenant’s interest and rights hereunder are and shall be subject and subordinate
at all times to the lien of any first mortgage, now existing or hereafter
created on or against the Project or the Premises, and all amendments,
restatements, renewals, modifications, consolidations, refinancing, assignments
and extensions thereof, without the necessity of any further instrument or act
on the part of Tenant. Tenant agrees, at the election of the holder of any such
mortgage, to attorn to any such holder. Tenant agrees upon demand to execute,
acknowledge and deliver such instruments, confirming such subordination and such
instruments of attornment as shall be requested by any such holder.
Notwithstanding the foregoing, any such holder may at any time subordinate its
mortgage to this Lease, without Tenant’s consent, by notice in writing to
Tenant, and thereupon this Lease shall be deemed prior to such mortgage without
regard to their respective dates of execution, delivery or recording and in that
event such holder shall have the same rights with respect to this Lease as
though this Lease had been executed prior to the execution, delivery and
recording of such mortgage and had been assigned to such holder. The term
“mortgage” whenever used in this Lease shall be deemed to include deeds of
trust, security assignments and any other encumbrances, and any reference to the
“holder” of a mortgage shall be deemed to include the beneficiary under a deed
of trust. Landlord represents to Tenant that as of the date hereof the Building
is not subject to or encumbered by a mortgage.
Notwithstanding
the preceding provisions of this Paragraph 27, this Lease and Tenant’s interest
in the Premises shall not be subordinate to any future mortgage or deed of trust
on the Project, and Tenant shall not be obligated to execute an instrument
subordinating this Lease or Tenant’s interest in the Premises to any future
mortgage or deed of trust on the Project, unless concurrently with such
subordination the holder of such mortgage or deed of trust agrees in such
instrument of subordination not to disturb Tenant’s possession of the Premises
(so long as no default exists under the Lease) in the event such holder acquires
title to the Premises through foreclosure, deed in lieu of foreclosure or
otherwise.
28. 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. 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 at the request of Tenant and that it will save
and hold Landlord harmless from all loss, 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
30 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 30 day
period.
29. Estoppel Certificates. Tenant
agrees, from time to time, within 10 days after request of Landlord, to execute
and deliver to Landlord, or Landlord’s designee, any estoppel certificate
requested by Landlord, stating that this Lease is in full force and effect, the
date to which rent has been paid, that Landlord is not in default hereunder (or
specifying in detail the nature of Landlord’s default), the termination date of
this Lease and such other matters pertaining to this Lease as may be requested
by Landlord. Tenant’s obligation to furnish each estoppel certificate in a
timely fashion is a material inducement for Landlord’s execution of this Lease.
No cure or grace period provided in this Lease shall apply to Tenant’s
obligations to timely deliver an estoppel certificate.
30. Environmental Requirements.
Except for Hazardous Material contained in products used by Tenant in de
minimis quantities for ordinary cleaning and office purposes, and as provided in
Addendum 8, 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. Tenant, at its sole cost and expense, shall operate its
business in the Premises in strict compliance with all Environmental
Requirements and shall remediate in a manner satisfactory to Landlord, but in no
event to a condition which exceeds the condition prior to such release, any
Hazardous Materials released on or from the Project 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, use, generation,
-15-
manufacture
or release of Hazardous Materials on the Premises. 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, asbestos
and petroleum, including crude oil or any fraction thereof, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural
gas and such synthetic gas). As defined in Environmental Requirements, Tenant is
and shall be deemed to be the “operator” of Tenant’s “facility” and the “owner”
of all Hazardous Materials brought on the Premises by Tenant, its agents,
employees, contractors or invitees, and the wastes, by-products, or residues
generated, resulting, or produced therefrom.
Tenant
shall indemnify, defend, and hold Landlord harmless from and against any and all
losses (including, without limitation, diminution in value of the Premises or
the Project and loss of rental income from the Project), claims, demands,
actions, suits, damages (including, without limitation, punitive damages),
expenses (including, without limitation, remediation, removal, repair,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual attorneys’ fees, consultant fees or expert fees and
including, without limitation, removal or management of any asbestos brought
into the property or disturbed in breach of the requirements of this Paragraph
30, regardless of whether such removal or management is required by law) which
are brought or recoverable against, or suffered or incurred by Landlord as a
result of any release of hazardous Materials for which Tenant is obligated to
remediate as provided above or any other breach of the requirements under this
Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,
assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall survive
any termination of this Lease.
Landlord
shall have access to, and a right to perform inspections and tests of, the
Premises to determine Tenant’s compliance with Environmental Requirements, its
obligations under this Paragraph 30, or the environmental condition of the
Premises. 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.
Landlord
represents to Tenant that to the best of Landlord’s current, actual knowledge
that there are no Hazardous Materials in reportable quantities on the Project
and that there have not been any Hazardous Materials in reportable quantities on
the Project, and Landlord has not violated any Environmental Requirements
pertaining to the Project. The phrase “current, actual knowledge of Landlord”
shall mean and refer only to the best of the current, actual knowledge of the
officers of Landlord having direct, operational responsibility for the Project,
with the express limitations and qualifications that the knowledge of any
contractor or consultant shall not be imputed to Landlord, and none of such
officers has made any special investigation or inquiry, and none of such
officers has any duty or obligation of diligent investigation or inquiry, or any
other duty or obligation, to acquire or to attempt to acquire information beyond
or in addition to the current, actual knowledge of such persons.
Notwithstanding
anything to the contrary in this Paragraph 30, Tenant shall have no liability of
any kind to Landlord as to Hazardous Materials on the Premises caused or
permitted by (i) Landlord, its agents, employees, contractors or invitees; or
(ii) any other tenants in the Project or their agents, employees, contractors,
subtenants, assignees or invitees; or (iii) any other person or entity located
outside of the Premises or the Project.
If
Hazardous Materials are hereafter discovered on the Premises, and the presence
of such Hazardous Materials is not the result of Tenant’s use of the Premises or
any act or omission of Tenant or its agents, employees, contractors, subtenants
or invitees, and the presence of such Hazardous Materials results in any
contamination, damages, or injury to the Premises that materially and adversely
affects Tenant’s occupancy or use of the Premises or human health, Landlord
shall promptly take all actions at its sole expense as are necessary
to
-16-
remediate
such Hazardous Materials and as may be required by the Environmental
Requirements. Actual or threatened action or litigation by any governmental
authority is not a condition prerequisite to Landlord’s obligations under this
paragraph. Within thirty (30) days after notification from Tenant supported by
reasonable documentation setting forth such presence or release of Hazardous
Materials, and after Landlord has been given a reasonable period of time after
such thirty (30) day period to conduct its own investigation to confirm such
presence or release of Hazardous Materials, Landlord shall commence to remediate
such Hazardous Materials within one hundred eighty (180) days after the
completion of Landlord’s investigation and thereafter diligently prosecute such
remediation to completion. If Landlord commences remediation pursuant to this
paragraph, the Base Rent and Operating Expenses shall be equitably adjusted if
and to the extent and during the period the Premises are unsuitable for Tenant’s
business. Notwithstanding anything herein to the contrary, if Landlord obtains a
letter from the appropriate governmental authority that no further remediation
is required Landlord’s obligation to remediate as provided in this paragraph
shall be null and void.
31. Rules and Regulations. Tenant
shall, at all times during the Lease Term and any extension thereof, comply with
all reasonable rules and regulations at any time or from time to time
established by Landlord covering use of the Premises and the Project, provided
such rules and regulations do not contradict Tenant’s rights under this Lease
and do not interfere with Tenant’s use of the Premises as provided in this
Lease. The current rules and regulations are attached hereto as Exhibit B. In
the event of any conflict between said rules and regulations and other
provisions of this Lease, the other terms and provisions of this Lease shall
control. Landlord shall not have any liability or obligation for the breach of
any rules or regulations by other tenants in the Project.
32. Security Service. Tenant
acknowledges and agrees that, while Landlord may patrol the Project, Landlord is
not providing any security services with respect to the Premises and that
Landlord shall not be liable to Tenant for, and Tenant waives any claim against
Landlord with respect to, any loss by theft or any other damage suffered or
incurred by Tenant in connection with any unauthorized entry into the Premises
or any other breach of security with respect to the Premises.
33. Force Majeure. Except for
monetary obligations, neither Landlord nor Tenant shall be held responsible for
delays in the performance of its obligations hereunder when caused by strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord or Tenant, as the case may be
(“Force Majeure”).
34. Entire Agreement. This Lease
(including all addenda and exhibits) 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.
35. 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.
36. Brokers. Tenant 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, and Tenant agrees to indemnify and hold Landlord harmless from and
against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having dealt with Tenant
with regard to this leasing transaction. Landlord hereby acknowledges and agrees
that the broker referenced on first page of this Lease shall be entitled to a
leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be deemed earned and shall be paid by Landlord to said broker
in accordance with, and subject to the terms of, a separate written
agreement.
-17-
37. Miscellaneous. (a) Any payments or
charges due from Tenant to Landlord hereunder shall be considered rent for all
purposes of this Lease.
(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, and with a copy sent
to Landlord at 4545 Airport Way, Denver, Colorado 80239. 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) Except
as otherwise expressly provided in this Lease, whenever the Lease requires an
approval, consent, designation, determination, selection or judgment by either
Landlord or Tenant, such approval, consent, designation, determination,
selection or judgment and any conditions imposed thereby shall be reasonable and
shall not be unreasonably withheld or delayed and, in exercising any right to
remedy hereunder, each party shall at all times act reasonably and in good
faith.
(e) At
Landlord’s request from time to time Tenant shall furnish Landlord with true and
complete copies of its most recent annual financial statements prepared by
Tenant or Tenant’s accountants. Such requirement shall be met provided Tenant’s
financials are available via public record.
(f) Neither
this Lease nor a memorandum of lease shall be filed by or on behalf of Tenant in
any public record. Landlord may prepare and file, and upon request by Landlord
Tenant will execute, a memorandum of lease.
(g) 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.
(h) 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.
(i) 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 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 30 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.
(k) Construction
and interpretation of this Lease shall be governed by the laws of the state in
which the Project is located, excluding any principles of conflicts of
laws.
-18-
(l) Time
is of the essence as to the performance of the parties’ obligations under this
Lease.
(m) 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.
(n) In
the event either party hereto initiates litigation to enforce the terms and
provisions of this Lease, the non-prevailing party in such action shall
reimburse the prevailing party for its reasonable attorney’s fees, filing fees,
and court costs.
38. Counterparts. This Lease may
be executed simultaneously in two or more counterparts each of which shall be
deemed an original, but all of which shall constitute one and the same Lease.
Landlord and Tenant agree that the delivery of an executed copy of this Lease by
facsimile shall be legal and binding and shall have the same full force and
effect as if an original executed copy of this Lease had been delivered;
provided Landlord and Tenant agree to promptly send original copies of this
Lease following any delivery by facsimile.
39. Limitation of Liability of Trustees,
Shareholders, and Officers of ProLogis. Any obligation or liability
whatsoever of ProLogis, a Maryland real estate investment trust, 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.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and
year first above written.
|
TENANT:
|
LANDLORD:
|
|
United
Natural Foods, Inc.
|
PROLOGIS,
a Maryland real estate investment trust
|
|
By: /s/ Mark E.
Shamber
|
By: /s/ Jeremy D.
Giles
|
|
Name:
Mark E.
Shamber
|
Name:
Jeremy D.
Giles
|
|
Title: SVP,
CFO
|
Title: Senior Vice
President
|
|
Address:
|
Address:
|
|
2100 Danieldale
Road
|
2310 LBJ
Freeway
|
|
-
|
Suite
200
|
|
Lancaster,
TX 75134
|
Dallas, TX
75234
|
-19-
ADDENDUM
1
BASE
RENT ADJUSTMENTS
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED 9-30-09,
BETWEEN
ProLogis
and
United Natural Foods,
Inc.
Base
Rent shall equal the following amounts for the respective periods set forth
below:
|
Period
|
Monthly Base
Rent
|
||
|
Month
1
|
through
|
Month
5
|
$0.00*
|
|
Month
6
|
through
|
Month
10
|
$73,733.75*
|
|
Month
11
|
through
|
Month
65
|
$122,889.58
|
|
Month
66
|
through
|
Month
125
|
$132,720.25
|
|
*During
Months 1 – 10, Tenant to pay 59.98 % of the Operating
Expenses.
|
|||
-20-
ADDENDUM
2
HVAC
MAINTENANCE CONTRACT
ATTACHED
TO AND A PART OF THE LEASE
AGREEMENT
DATED
9-30-09, BETWEEN
ProLogis
and
United
Natural Foods, Inc.
Paragraph
11, captioned “TENANT REPAIRS,” is supplemented by the following:
Tenant
agrees to enter into and maintain through the term of the Lease, a regularly
scheduled preventative maintenance/service contract for servicing all hot water,
heating and air conditioning systems and equipment within the Premises. Landlord
requires a qualified HVAC contractor perform this work. A certificate must be
provided to the Landlord upon occupancy of the leased Premises,
The
service contract must become effective within one hundred twenty (120) days of
occupancy, and service visits should be performed on a quarterly basis. Landlord
suggests that Tenant send the following list to a qualified HVAC contractor to
be assured that these items are included in the maintenance
contract:
1. Adjust
belt tension;
2. Lubricate
all moving parts, as necessary;
3. Inspect
and adjust all temperature and safety controls;
4. Check
refrigeration system for leaks and operation;
5. Check
refrigeration system for moisture;
6. Inspect
compressor oil level and crank case heaters;
7. Check
head pressure, suction pressure and oil pressure;
8. Inspect
air filters and replace when necessary;
9. Check
space conditions;
10. Check
condensate drains and drain pans and clean, if necessary;
11. Inspect
and adjust all valves;
12. Check
and adjust dampers;
13. Run
machine through complete cycle.
-21-
ADDENDUM
3
MOVE-OUT
CONDITIONS
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
9-30-09, BETWEEN
ProLogis
and
United Natural Foods,
Inc.
Per
Paragraph 21, Tenant is obligated to check and address prior to move-out of the
Premises the following items. Landlord expects to receive the Premises in the
condition received by Tenant and maintained in accordance with the Lease, except
for normal wear and tear. Nothing contained herein shall be interpreted to
require Tenant to surrender the Premises in a condition which exceeds the
condition existing as of the date Tenant first took possession of the Premises.
The following list is designed to assist Tenant in the move-out procedures but
is not intended to be all inclusive.
|
1.
|
All
lighting is to be placed into good working order. This includes
replacement of bulbs, ballasts, and lenses as
needed.
|
|
2.
|
All
truck doors and dock levelers should be serviced and placed in good
operating order. This would include the necessary replacement of any
dented truck door panels and adjustment of door tension to insure proper
operation. All door panels which are replaced need to be painted to match
the Building standard.
|
|
3.
|
All
structural steel columns in the warehouse and office should be inspected
for damage. Repairs of this nature should be pre-approved by the Landlord
prior to implementation.
|
|
4.
|
Heating/air-conditioning
systems should be placed in good working order, including the necessary
replacement of any parts to return the unit to a well maintained
condition. This includes warehouse heaters and exhaust fans. Upon
move-out, Landlord will have an exit inspection performed by a certified
mechanical contractor to determine the
condition.
|
|
5.
|
All
holes in the sheet rock walls should be repaired prior to
move-out.
|
|
6.
|
The
carpets and vinyl tiles should be in a clean condition and should not have
any holes or chips in them. Landlord will accept normal wear on these
items provided they appear to be in a maintained
condition.
|
|
7.
|
Facilities
should be returned in a clean condition which would include cleaning of
the coffee bar, restroom areas, windows, and other portions of the
space.
|
|
8.
|
The
warehouse should be in broom clean condition with all inventory and
racking removed. There should be no protrusion of anchors from the
warehouse floor and all holes should be appropriately patched. If
machinery/equipment is removed, the electrical lines should be properly
terminated at the nearest junction
box.
|
|
9.
|
All
exterior windows with cracks or breakage should be
replaced.
|
|
10.
|
The
Tenant shall provide keys for all locks on the Premises, including front
doors, rear doors, and interior
doors.
|
|
11.
|
Intentionally
Omitted.
|
|
12.
|
All
electrical systems should be left in a safe condition that conforms to
code. Bare wires and dangerous installations should be corrected prior to
move-out.
|
-22-
|
13.
|
All
plumbing fixtures should be in good working order, including the water
heater. Faucets and toilets should not
leak.
|
|
14.
|
All
dock bumpers must be left in place and well
secured.
|
-23-
ADDENDUM
4
RIGHT
OF FIRST REFUSAL TO PURCHASE
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
9-30-09, BETWEEN
ProLogis
and
United Natural Foods,
Inc,
Provided
that as of the date of the giving of Landlord’s Notice, (x) Tenant is the Tenant
originally named herein, (y) Tenant 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, then subject to and in accordance with the terms of this Addendum,
if at any time during the initial Lease Term Landlord intends to enter into a
purchase agreement (the “Proposed Sale”) for the Building with anyone (a
“Proposed Purchaser”) (subject to the Excluded Transaction or Foreclosure
Transfer as described below), Landlord shall first offer to Tenant in writing
(“Landlord’s Notice”) the right to purchase the Building upon all monetary terms
of the Proposed Sale. Tenant shall exercise this Right of First Refusal to
Purchase by delivering written notice (“Purchase Notice”) to Landlord no later
than ten (10) business days after receipt of Landlord’s notice. Time is of the
essence with respect to the giving of Tenant’s Purchase Notice. If Tenant
declines to purchase the Building in accordance with the terms of this Addendum,
except as provided for below, Tenant shall be deemed to have irrevocably waived
all further rights under this Addendum, and Landlord shall be free to sell the
Building to any other party(s), including on terms which may be less favorable
to Landlord than those set forth in Landlord’s Notice.
(b) The
Purchase Price shall be set forth in Landlord’s Notice to Tenant, payable in
immediately available funds at closing. The intent of the parties is that the
Purchase Price shall be absolutely net of commissions to Landlord, with the sole
exception being that Landlord shall pay its attorneys’ fees.
(c) The
Closing shall be conducted through an escrow established at a title company
acceptable to both Landlord and Tenant. All deliveries shall be deposited in
escrow and all closing deliveries and disbursements shall be made through the
escrow. The Closing shall occur no later than 120 days following the exercise of
the Right of First Refusal to Purchase.
(d) For
a period of 30 days after the date of Tenant’s Purchase Notice to Landlord
(“Inspection Period”), Tenant shall be entitled to inspect the Building, conduct
title examination and review leases, operating agreements and other materials
relating to the Building (“Inspections”). Tenant shall indemnify and defend
Landlord for any claim, damage or liability arising out of Tenant’s and its
agent’s and contractor’s inspection. Tenant may revoke its election to exercise
the Right of First Refusal to Purchase by notice at the expiration of the
Inspection Period if Tenant is not satisfied with any aspect of the Building or
the title, in which case this Lease shall continue in full force and
effect.
(e) Landlord
shall convey to Tenant fee simple title to the Building by special warranty deed
(warranting title by, through, or under Landlord, but not otherwise) subject
only to all matters of record and those matters which a correct survey would
show but free and clear of any liens or any other exceptions created by, under,
or through Landlord. Landlord shall remove any liens or any other exceptions
created by, under, or through Landlord. Tenant shall have the absolute right to
approve title to the Building, and if title is not satisfactory, Tenant may
revoke its election to exercise the Right of First Refusal to Purchase by giving
notice to Landlord (x) within the Inspection Period in Paragraph (d) above and,
(y) with respect to any title exceptions of which Tenant is notified after such
Inspection Period but before the Closing, at any time before the Closing.
Landlord shall assign to Tenant all its right, title and interest in and to all
contracts, warranties, permits, approvals, and other intangible property related
to the Building except for any trade name or other similar rights related to the
Building, which Landlord shall retain.
(f) Pursuant
to this Lease, there should be no proration of taxes or other
expenses.
-24-
(g) The
Lease shall be terminated as of the Closing. All rent and other payments due by
Tenant to Landlord under the Lease shall be prorated to the date of Closing and
shall be deposited into the escrow and disbursed to Landlord at Closing. Any
warranties associated with the Premises or the Building and any claims in
connection therewith shall be assigned to Tenant at Closing.
(h) Landlord
makes no, and at closing Tenant shall waive in writing satisfactory to Landlord
any, warranty or representation with respect to the Building (other than title
to the Building as provided above) and shall release Landlord from any right or
claims, known or unknown, with respect to the physical or environmental
condition of the Building or the compliance of the Building with applicable law.
Tenant is relying on its own inspection and review of the Building. Landlord
agrees to assign to Tenant any building warranties which Landlord holds
pertaining to the Building upon Closing.
(i) Risk
of loss shall remain with Landlord, subject to Tenant’s obligations under the
Lease, until the Closing. If any condemnation is instituted or threatened
against the Building or the Building is damaged, either party may terminate the
purchase transaction, and the Lease shall remain in full force and
effect.
(j) Landlord
may conduct the sale as a tax-free exchange pursuant to Section 1031 of the
Internal Revenue Code. Such exchange shall be conducted through a qualified
intermediary, at no cost to Tenant, and without affecting Landlord’s obligations
to Tenant. Tenant shall not be required to take title to any other property in
connection with a Section 1031 exchange.
(k) Tenant’s
exercise of the Right of First Refusal to Purchase is irrevocable except as
provided herein. Time is of the essence.
(1) Only
the Tenant originally named herein, a Tenant Affiliate, or entity resulting from
a Permitted Transfer may exercise this Right of First Refusal to Purchase. The
Right of First Refusal to Purchase is not assignable and shall terminate
automatically upon any termination of the Lease other than as a result of
default by Landlord. Further, no such right is exercisable if as of the date of
exercised of the right or the Closing, the Lease has terminated or an Event of
Default or event (“Potential Default”) 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.
(m) Notwithstanding
anything contained herein to the contrary, Tenant agrees and understands that
Tenant’s Right of First Refusal shall not be effective and shall not be
enforceable with respect to any of the following transactions (each an “Excluded
Transaction”) and that this Right of First Refusal to Purchase shall only be
effective as to the sale of the Building alone, as a single asset sale, and
shall not be in effect for any sale of the Building which includes other assets
of Landlord or its affiliates: (a) sales of the Building or Project to a related
entity, (b) a sale which includes assets beyond the Building only or a sale of
all or substantially all of Landlord’s assets or its shares; (c) encumbrances of
the Building; (d) any sale after Tenant has failed to timely deliver Tenant’s
Purchase Notice following Tenant’s receipt of Landlord’s Notice; (e) sales of
the Building to governmental entities as a result of condemnation, eminent
domain, or a sale in lieu of condemnation; (f) sales in connection with a lease
back of the Building by Landlord; and (g) sale to a real estate investment fund
or a property fund which Landlord retains a minimal interest in. Furthermore,
notwithstanding anything contained herein to the contrary, the Right of First
Refusal to Purchase as provided herein shall not be effective or enforceable
with respect to any transfer of the Building to “holder” as a result of a
foreclosure or deed-in-lieu of foreclosure (“Foreclosure Transfer”). Tenant
agrees and understands that in the event of an Excluded Transaction or a
Foreclosure Transfer, this Right of First Refusal to Purchase shall be
automatically deemed null and void and of no further force or effect upon such
transaction.
-25-
ADDENDUM
5
OPTION
TO SURRENDER
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
9-30-09, BETWEEN
ProLogis
and
United Natural Foods.
Inc.
(a) The
following terms shall have the following meanings:
(i) The
“Surrender Premises 1” shall mean the 118,030 rentable square
feet of the Building as shown on Exhibit A as ‘‘Surrender Premises
1”.
(ii) The “Surrender Premises 2”
shall mean the 236,060 rentable square feet of the Building as shown on Exhibit
A as “Surrender Premises 2”.
(iii) The
“Surrender Effective Date” shall mean December 31, 2010.
(b) Provided
that as of the date Tenant exercises its rights hereunder, (x) Tenant is the
Tenant originally named herein, and (y) 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, Tenant shall have the option to
surrender either Surrender Premises 1 or Surrender Premises 2 commencing on the
Surrender Effective Date in accordance with this Addendum.
(c) If
Tenant desires to exercise its option to surrender either the Surrender Premises
1 or the Surrender Premises 2 as provided above, Tenant must deliver written
notice (“Surrender Notice”) of such exercise to Landlord no later than sixty
(60) days prior to the Surrender Effective Date, which notice shall identify
whether Tenant is electing to surrender either the Surrender Premises 1 or the
Surrender Premises 2. For the purpose of this Addendum, the term “Surrender
Premises”, as hereinafter used, shall mean either Surrender Premises 1 or
Surrender Premises 2 as such is elected by Tenant in the Surrender Notice. Time
shall be of the essence with respect to the giving of the Surrender Notice.
If Tenant does not
deliver the Surrender Notice by such date, Tenant’s rights under this Addendum
shall be null and void
(d) If
Tenant exercises its right to surrender the Surrender Premises as provided
herein, effective on the Surrender Effective Date the term with respect to the
Surrendered Space shall be reduced so that it will expire on the Surrender
Effective Date, and the Tenant hereby agrees that it shall surrender and deliver
up vacant possession of the Surrender Premises to the Landlord on the Surrender
Effective Date in accordance with the terms of the Lease, and shall indemnify
Landlord against any claim by any other party except Landlord, to be entitled to
possession of any part of the Surrender Premises. The respective rights and
obligations of Landlord and Tenant under the Lease in respect of the Surrender
Premises shall be preserved and shall survive the surrender of the Surrender
Premises as to matters arising or occurring prior to the Surrender Effective
Date, but no such rights or obligations will arise or accrue to either of them
under such lease after the Surrender Effective Date.
(e) In
the event Tenant timely delivers the Surrender Notice and elects to surrender
the Surrender Premises 1 then effective on the Surrender Effective Date
Tenant’s Proportionate Share of the Building shall be amended to 79.99% and
Tenant’s Proportionate Share of the Project shall be amended to 79.99%, and in
the event Tenant elects to surrender the Surrender Premises 2 then effective on
the Surrender Effective Date Tenant’s Proportionate Share of the Building shall
be amended to 59.98% and Tenant’s Proportionate Share of the Project shall be
amended to 59.98%.
-26-
In
the event Tenant timely delivers the Surrender Notice and elects to surrender
the Surrender Premises 1 then effective on the Surrender Effective Date the Base
Rent due and payable under this Lease for the remainder of the initial Lease
Term shall be as follows during the applicable periods:
|
Month
11
|
through
|
Month
65
|
$98,300.00
|
|
Month
66
|
through
|
Month
125
|
$
106,164.00
|
In
the event Tenant timely delivers the Surrender Notice and elects to surrender
the Surrender Premises 2 then effective on the Surrender Effective Date the Base
Rent due and payable under this Lease for the remainder of the initial Lease
Term shall be as follows during the applicable periods:
|
Month
11
|
through
|
Month
65
|
$73,733.75
|
|
Month
66
|
through
|
Month
125
|
$79,607.25
|
(f) In
the event Tenant exercises its option to surrender as provided in this Addendum
5, Landlord, at Landlord’s expense, shall have the obligation to construct a
demising wall between the Premises and the surrendered portion of the Premises
and separate the utilities for such areas of the Building prior to Landlord
delivering possession of the Surrender Premises 1 or the Surrender Premises 2
(as applicable) to a third-party tenant. Provided, notwithstanding the foregoing
to the contrary, Tenant agrees and understands that Landlord shall have no
obligation to construct such demising wall or separate the utilities until such
time that is immediately prior to the time Landlord delivers possession of such
space to a third-party tenant. From the Surrender Effective Date until the date
Landlord separates the utilities as provided above, Tenant shall be responsible
for Tenant’s share of such jointly metered utilities, as reasonably determined
by Landlord until such utilities services are separated, which amounts shall be
payable by Tenant no later than thirty (30) days following Tenant’s receipt of
an invoice for such amount.
-27-
ADDENDUM
6
TWO
RENEWAL OPTIONS AT FIXED RATE
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
9-30-09, BETWEEN
ProLogis
and
United Natural Foods,
Inc.
(a) Provided
that as of the time of the giving of the First Extension Notice and the
Commencement Date of the First Extension Term, (x) Tenant is the Tenant
originally named herein, (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 (5) 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 6 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, (x) Tenant is the Tenant
originally named herein, (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 (5) years (such additional tern 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 6 months.
(c) The
Base Rent payable by Tenant to Landlord during the First Extension Term shall be
$3.15 per rentable square foot of the Premises.
(d) The
Base Rent payable by Tenant to Landlord during the Second Extension Term shall
be $3.60 per rentable square foot of the Premises.
(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 First Extension Term and the Second Extension Term shall be on the same
terms and conditions as are in effect immediately prior to the expiration of the
initial Lease Term or the First Extension Term; provided, however, Tenant shall
have no further right to any allowances, credits or abatements 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) Landlord
shall have no obligation to refurbish or otherwise improve the Premises for the
First Extension Term or the Second Extension Term. The Premises shall be
tendered on the Commencement Date of the First Extension Term and Second
Extension Term in “as-is” condition.
-28-
(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.
-29-
ADDENDUM
7
STORAGE
AND USE OF PERMITTED HAZARDOUS MATERIALS
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
9-30-09, BETWEEN
ProLogis
and
United Natural Foods,
Inc.
Tenant
has requested Landlord’s consent to use the Hazardous Materials listed below in
its business at the Premises (the “Permitted Hazardous Materials”). Subject to
the conditions set forth herein, Landlord hereby consents to the Use
(hereinafter defined) of the Permitted Hazardous Materials. Any Permitted
Hazardous Materials on the Premises will be generated, used, received,
maintained, treated, stored, or disposed in a manner consistent with good
engineering practice and in compliance with all Environmental
Requirements.
|
Permitted Hazardous
Materials (with approximate daily amounts):
|
|
|
Lead
Antimony
|
250,000
lbs.
|
|
Anhydrous
Ammonia
|
7,000
lbs.
|
|
Carbon
Dioxide (solid)
|
6,000
lbs.
|
|
Diesel
Fuel
|
12,000
gals.
|
|
Sulfuric
Acid (electrolyte solution)
|
12,500
gals.
|
|
Petroleum
Distillate (gear oil)
|
5
gals.
|
|
Petroleum
Distillate (power steering fluid)
|
1
gal.
|
|
Petroleum
Distillate (transmission fluid)
|
2
gals.
|
| Petroleum Distillate (motor oil) | 5 gals. |
|
Ethelyne
Glycol
|
5
gals.
|
-30-
EXHIBIT A
SITE
PLAN AND SCOPE OF WORK
-31-
EXHIBIT
B
RULES
AND REGULATIONS
|
1.
|
The
sidewalk, entries, and driveways of the Project shall not be obstructed by
Tenant, or its agents, or used by them for any purpose other than ingress
and egress to and from the
Premises.
|
|
2.
|
Except
as expressly provided in the Lease or otherwise approved in writing by
Landlord, Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other areas
outside of its Premises, or on the roof of the
Project.
|
|
3.
|
Except
for seeing-eye dogs, no animals shall be allowed in the offices, halls, or
corridors in the Project.
|
|
4.
|
Intentionally
Omitted,
|
|
5.
|
If
Tenant desires telegraphic, telephonic or other electric connections in
the Premises, Landlord or its agent will direct the electrician as to
where and how the wires may be introduced; and, without such direction, no
boring or cutting of wires will be permitted. Any such installation or
connection shall be made at Tenant’s
expense.
|
|
6.
|
Tenant
shall not install or operate any steam engine or boiler in the Premises,
except as specifically approved in the Lease or otherwise approved by
Landlord in writing..
|
|
7.
|
Parking
any type of recreational vehicles is specifically prohibited on or about
the Project. In the event that a vehicle is disabled, it shall be removed
within 48 hours. There shall be no “For Sale” or other advertising signs
on or about any parked vehicle.
|
|
8.
|
Tenant
shall maintain the Premises free from rodents, insects and other
pests.
|
|
9.
|
Landlord
reserves the right to exclude or expel from the Project any person who, in
the judgment of Landlord, is intoxicated or under the influence of liquor
or drugs or who shall in any manner do any act in violation of the Rules
and Regulations of the Project.
|
|
10.
|
Tenant
shall not cause any unnecessary labor by reason of Tenant’s carelessness
or indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant for any loss of property on
the Premises, however occurring, or for any damage done to the effects of
Tenant by the janitors or any other employee or
person.
|
|
11.
|
Tenant
shall give Landlord prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the
Premises,
|
|
12.
|
Tenant
shall not permit dumping of waste or refuse or permit any harmful
materials to be placed in any drainage system or sanitary system in or
about the Premises except for normal human
waste.
|
|
13.
|
All
moveable trash receptacles provided by the trash disposal firm for the
Premises must be kept in the trash enclosure areas, if any, provided for
that purpose.
|
|
14.
|
No
auction, public or private, will be permitted on the Premises or the
Project.
|
|
15.
|
No
awnings shall be placed over the windows in the Premises except with the
prior written consent of Landlord.
|
-32-
|
16.
|
The
Premises shall not be used for lodging, sleeping or cooking (except for
normal break room cooking) or for any immoral or illegal purposes or for
any purpose other than that specified in the Lease. No gaming devices
shall be operated in the Premises.
|
|
17.
|
Tenant
shall ascertain from Landlord the maximum amount of electrical current
which can safely be used in the Premises, taking into account the capacity
of the electrical wiring in the Project and the Premises and the needs of
other tenants, and shall not use more than such safe capacity. Landlord’s
consent to the installation of electric equipment shall not relieve Tenant
from the obligation not to use more electricity than such safe
capacity.
|
|
18.
|
Tenant
assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
|
|
19.
|
Tenant
shall not install or operate on the Premises any machinery or mechanical
devices of a nature not directly related to Tenant’s ordinary use of the
Premises and shall keep all such machinery free of vibration, noise and
air waves which may be transmitted beyond the
Premises.
|
-33-
EXHIBIT
C
PARKING
PLAN
-34-