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AGREEMENT OF LEASE
between
CTC INVESTMENTS LIMITED
("Landlord ")
and
COACH DISTRIBUTION COMPANY
("Tenant")
Dated as of October 13, 1994
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TABLE OF CONTENTS
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ARTICLE 1 CERTAIN DEFINITIONS....................................................................... 1
ARTICLE 2 PREMISES AND TERM OF LEASE................................................................ 8
ARTICLE 3 RENT...................................................................................... 9
ARTICLE 4 IMPOSITIONS............................................................................... 13
ARTICLE 5 MONTHLY DEPOSITS.......................................................................... 16
ARTICLE 6 LATE CHARGES.............................................................................. 17
ARTICLE 7 INSURANCE................................................................................. 17
ARTICLE 8 USE OF INSURANCE PROCEEDS................................................................. 22
ARTICLE 9 CONDEMNATION.............................................................................. 28
ARTICLE 10 ASSIGNMENT, SUBLETTING AND MORTGAGES...................................................... 34
ARTICLE 11 LANDLORD'S AND TENANT'S PROPERTY.......................................................... 43
ARTICLE 12 REPAIRS; SERVICES......................................................................... 44
ARTICLE 13 CHANGES, ALTERATIONS AND ADDITIONS........................................................ 47
ARTICLE 14 REQUIREMENTS OF PUBLIC AUTHORITIES AND OF
INSURANCE UNDERWRITERS AND POLICIES; OBLIGATIONS
UNDER OTHER SUPERIOR AGREEMENTS........................................................... 50
ARTICLE 15 LEASEHOLD IMPROVEMENT AGREEMENT........................................................... 52
ARTICLE 16 DISCHARGE OF LIENS; BONDS................................................................. 53
ARTICLE 17 REPRESENTATIONS........................................................................... 54
ARTICLE 18 LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC............................................. 56
ARTICLE 19 INDEMNIFICATION OF LANDLORD............................................................... 57
ARTICLE 20 INDEMNIFICATION OF TENANT................................................................. 59
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ARTICLE 21 RIGHT OF INSPECTION....................................................................... 61
ARTICLE 22 LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS............................................ 62
ARTICLE 23 NO TERMINATION OR ABATEMENT OF RENTAL..................................................... 63
ARTICLE 24 PERMITTED USE; NO UNLAWFUL OCCUPANCY;
OPERATION OF THE PREMISES................................................................. 65
ARTICLE 25 EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,
REMEDIES, ETC. ........................................................................... 66
ARTICLE 26 NOTICES................................................................................... 75
ARTICLE 27 SIGNAGE................................................................................... 76
ARTICLE 28 Omitted................................................................................... 78
ARTICLE 29 AMENDMENTS TO CC&R'S...................................................................... 78
ARTICLE 30 CERTAIN PROVISIONS RELATING TO SECURED LOANS.............................................. 79
ARTICLE 31 ENVIRONMENTAL MATTERS..................................................................... 80
ARTICLE 32 CERTIFICATES BY LANDLORD AND TENANT....................................................... 85
ARTICLE 33 CONSENTS AND APPROVALS.................................................................... 86
ARTICLE 34 SURRENDER AT END OF TERM OR RENEWAL TERMS................................................. 87
ARTICLE 35 ENTIRE AGREEMENT.......................................................................... 88
ARTICLE 36 QUIET ENJOYMENT........................................................................... 89
ARTICLE 37 LANDLORD'S CONTINGENCY.................................................................... 89
ARTICLE 38 INVALIDITY OF CERTAIN PROVISIONS.......................................................... 90
ARTICLE 39 FINANCIAL REPORTS......................................................................... 90
ARTICLE 40 RECORDING OF MEMORANDUM................................................................... 91
ARTICLE 41 Omitted................................................................................... 91
ARTICLE 42 MISCELLANEOUS............................................................................. 91
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ARTICLE 43 LIMITATION OF LIABILITY................................................................... 95
ARTICLE 44 SUCCESSORS AND ASSIGNS.................................................................... 96
ARTICLE 45 EXPANSION OPTIONS......................................................................... 96
ARTICLE 46 RENEWAL OPTIONS...........................................................................112
ARTICLE 47 Omitted...................................................................................113
ARTICLE 48 LANDLORD DEFAULTS.........................................................................113
ARTICLE 49 TITLE INSURANCE...........................................................................115
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EXHIBITS
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First Reference
Exhibit Exhibit Caption in Lease
------- --------------- ---------------
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A Description of Parcel A Section 1
B Title Matters Section 1
C Leasehold Improvement Agreement Section 1
D Description of Parcel B Section 1
E Description of Parcel C Section 1
F Expansion Space Improvement Agreement Section 1
G Description of Parcel D Section 1
H Warranties Section 12.4
I Confidentiality Agreement Section 21.1
J Subordination Agreement Section 30.2
K Estoppel Letter Section 32.1
L Environmental Indemnity Section 30.3
M Illustrative Amortization
Schedule Section 9.1(d)
N Preliminary Site Drawing Section 1
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LEASE
This AGREEMENT OF LEASE is made and entered into as of October 13,
1994, by and between CTC INVESTMENTS LIMITED, a Florida limited partnership
having an office at 9665 Wilshire Blvd., Suite 200, Beverly Hills, California
90212 ("LANDLORD"), and COACH DISTRIBU TION COMPANY, a Delaware corporation
having an office at 410 Commerce Boulevard, Carlstadt, New Jersey 07072
("TENANT"), with the full guaranty of Tenant's obligations by Sara Lee
Corporation, a Maryland corporation ("GUARANTOR").
W I T N E S S E T H:
It is hereby mutually covenanted and agreed by and between the
parties hereto that this Agreement of Lease is made and entered into by them
upon the terms, covenants and conditions hereinafter set forth, and that for
good and valuable consideration (the receipt and sufficiency of which are
acknowledged by both of them) they agree as follows.
ARTICLE 1
CERTAIN DEFINITIONS
The terms defined in this ARTICLE 1 shall, for all purposes of this
Lease, have the following meanings:
"ADDITION" shall mean, at any time, such of the First Parcel B
Addition, the Second Parcel B Addition, and the Office Facility Addition (if
any) as to which Tenant shall theretofore duly and timely have exercised its
option rights and become the tenant hereunder as set forth in ARTICLE 45
hereof.
"AFFILIATE," when used with respect to any Person (hereinafter
defined), shall mean any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. For
purposes of the foregoing definition, "CONTROL" (including "control by" and
"under common control with") shall mean ownership of fifty percent (50%) or
more of each class of the authorized and outstanding stock of a corporation
and fifty percent (50%) or more of all of the interests in a partnership,
trust or other business entity (determined without regard to cash flow
preferences and similar items).
"ASSOCIATION" shall mean the Jacksonville International Tradeport
Owner's Association, Inc., a Florida non-profit corporation, and its
successors and assigns.
"BUILDINGS" shall mean and include, collectively, at any time, all
buildings (including, without limitation, footings, foundations, building
systems, and the interior of such buildings), structures, Equipment
(hereinafter defined), fixtures, and other improvements and appurtenances of
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every kind and description then erected, constructed, placed or existing upon
the Land (hereinafter defined). "BUILDING" shall mean and refer to any one of
the Buildings.
"BUSINESS DAYS" shall mean all days which are not a Saturday, Sunday
or a day observed as a legal holiday by either the State of Florida, the
State of California or the federal government.
"CAPITAL IMPROVEMENT" shall have the meaning provided in SECTION
13.1.
"CC&R'S" shall mean and include, collectively, the following: City
of Jacksonville Resolutions 87-1009-572, 88-448-463, 88-1223-541 and
91-394-202; the Jacksonville International Tradeport (Phase One - Northeast
Quadrant) Declaration of Covenants, Conditions, Restrictions and Easements
made as of July 24, 1990 by Wilma/ Skyland Joint Venture, Ltd., as amended
and recorded against the Premises in the real estate records of Duval County,
Florida, from time to time; Notice of Adoption of a Development Order
recorded in Volume 6644, page 922, of the real estate records of Duval
County, Florida; Amendment to Preliminary Development Agreement recorded in
Volume 6566, page 708, of the real estate records of Duval County, Florida;
the Jacksonville International Tradeport Development Guidelines as in effect
from time to time; and any other instru ment imposing conditions, covenants,
easements or restrictions on all or any part of the Parcels (defined
hereinafter) or the use thereof, which either are in effect on the effective
date of this Lease (hereinafter defined) or are identified on EXHIBIT B
attached hereto, as such documents or instruments be amended, modified or
restated from time to time.
"COMMENCEMENT DATE" shall have the meaning provided in ARTICLE 2.
"CONSTRUCTION AGREEMENTS" shall mean and include all contracts or
agreements for construction, Restoration (hereinafter defined), Capital
Improvement, rehabilitation, alteration, conversion, extension, repair or
demolition performed pursuant to this Lease.
"CREDIT RATING" shall, at any time, mean, with respect to any
Person, the rating then given by Moody's Investors Service or Standard &
Poor's Corp., as the case may be, or their respective successors, to the
longest-term unsecured, unsubordinated debt issue (which shall have at least
ten years remaining to its maturity at that time) of such Person then
outstanding (but if such Person does not then have outstanding any debt issue
having at least ten years remaining to maturity which is then rated by
Moody's or Standard & Poor's, it shall be deemed to have no Credit Rating for
purposes of this Lease).
"DEFAULT" shall mean any condition or event which constitutes or,
after notice or lapse of time, or both, would constitute an Event of Default
(hereinafter defined).
"EQUIPMENT" shall mean and include all fixtures, equipment and
personal property of any kind which is or becomes incorporated in or attached
to and used or usable in the use or operation of the Premises at any time
during the Term or any Renewal Term (hereinafter defined), excluding,
however, any of the foregoing which are owned, leased, or used by (a) tenants
or occupants of the
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Premises (including, without limitation, Tenant or an Affiliate of Tenant)
which such tenants or occupants have the express right to remove pursuant to
the terms of this Lease (including, without limitation, Tenant's Property
[hereinafter defined]), (b) contractors engaged in improving or maintaining
the same, or (c) utility companies providing utilities to all or any part of
the Parcels.
"EXPANSION OPTION" shall mean, collectively, the First Parcel B
Expansion Option, the Second Parcel B Expansion Option and the Office
Facility Option, each of which terms is defined in ARTICLE 45 hereof.
"EXPIRATION DATE" shall have the meaning provided in ARTICLE 2.
"FINAL INSPECTION" shall mean, with respect to any Building or
improvement, an inspection thereof made by the appropriate department or
agency of the City of Jacksonville, Florida as a result of which Tenant may
legally occupy and use such Building or improvement.
"FINAL PLANS" shall mean, with respect to any Building or other
structure, the drawings and specifications therefor filed with the Building
Department of the City of Jacksonville, Florida (or its successor or
substitute under applicable laws or ordinances), on the basis of which the
Final Inspection thereof will be done.
"FISCAL YEAR" shall mean a twelve-month period commencing July 1 and
ending June 30, any portion of which occurs during the Term or any Renewal
Term.
"FIXED RENT" shall have the respective meanings provided in SECTION
3.1(a), ARTICLE 45 or ARTICLE 46 hereof.
"GOVERNMENTAL AUTHORITY (OR AUTHORITIES)" shall mean and include the
United States of America, the State of Florida, the County of Duval, the City
of Jacksonville, and any agency, depart ment, commission, board, bureau,
instrumentality or political subdivision of any of the foregoing, now
existing or hereafter created, having jurisdiction over the Parcels or any
portion thereof, or any officer or official of any of the foregoing acting in
his official capacity.
"GUARANTY" means and includes, collectively, any and all guaranties
of any or all of Tenant's obligations hereunder given at any time or from
time to time by Guarantor (including, without limitation, that certain
Irrevocable Guaranty of Payment and Performance executed and delivered by
Guarantor to Landlord substantially simultaneously with the execution and
delivery of this Lease), as the same may from time to time be amended,
modified or restated.
"IMPOSITIONS" shall have the meaning provided in SECTION 4.1.
"INITIAL BUILDING" shall mean the Building which Landlord is to
cause to be constructed on Parcel A prior to the Commencement Date, for which
Tenant has heretofore reviewed and approved a coordination set of
architectural drawings and specifications prepared by Landlord's architect.
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"LAND" shall initially mean Parcel A (defined hereinafter), and
(from and after the respective times such additional parcels are leased to
Tenant hereunder) it shall also hereafter include such additional parcels of
land (if any) that from time to time hereafter are leased by Landlord to
Tenant pursuant to Tenant's due exercise of its Option rights pursuant to
ARTICLE 45 hereof.
"LANDLORD" shall mean CTC Investments Limited, a Florida limited
partnership, and its successors and assigns; provided however, that from and
after such time (if any) as Landlord's interest in and to this Lease shall be
assigned or transferred outright (and not just for collateral security
purposes) in accordance with the provisions of this Lease, then from and
after the effective date of such outright assignment or transfer and until
the next permitted assignment or transfer (if any) occurs, the term
"LANDLORD" shall mean the permitted assignee or transferee.
"LATE CHARGE RATE" shall have the meaning provided in ARTICLE 6.
"LEASE" shall mean this Agreement of Lease as it may from time to
time be amended, modified, extended, restated or renewed.
"LEASE YEAR" shall mean, in the case of the first Lease Year, the
period beginning on the Commencement Date and ending on the day immediately
preceding the first anniversary of the Commencement Date. Each subsequent
Lease Year shall mean a twelve-month period beginning on an anniversary of
the Commencement Date (so that, for example, the second Lease Year shall mean
and refer to the 12-month period beginning on the first anniversary of the
Commencement Date and ending on the day immediately preceding the second
anniversary of the Commencement Date), except that the last Lease Year may be
less than twelve months if this Lease expires or terminates on a date which
is not the day immediately preceding an anniversary of the Commence ment
Date, and in such case any annual amounts payable under this Lease
(including, without limitation, Fixed Rent) shall be prorated for such last
Lease Year.
"LEASEHOLD IMPROVEMENT AGREEMENT" shall mean that certain agreement
substantially in the form of EXHIBIT C attached hereto, which Landlord and
Tenant have executed or will execute substantially simultaneously with the
execution of this Lease.
"OPTION" shall mean and refer to such of the Expansion Options or
Renewal Options, as the context requires.
"NOTICE" shall have the meaning provided in SECTION 26.1.
"PARCEL A" shall mean the parcel of land described on EXHIBIT A
attached hereto, except that Landlord and Tenant hereby agree that, on the
written request of either of them delivered to the other not later than 180
days after final completion of the Initial Building, they will jointly cause
the respective legal descriptions of Parcels A and B to be modified so that
the boundary between those two parcels will be flush with the eastern edge of
the Initial Building.
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"PARCEL B" shall mean the parcel of land described on EXHIBIT D
attached hereto, except that Landlord and Tenant hereby agree that, on the
written request of either of them delivered to the other not later than 180
days after final completion of the Initial Building, they will jointly cause
the respective legal descriptions of Parcels A and B to be modified so that
the boundary between those two parcels will be flush with the eastern edge of
the Initial Building.
"PARCEL C" shall mean the parcel of land described on EXHIBIT E
attached hereto.
"PARCEL D" shall mean the parcel of land described on EXHIBIT G
attached hereto.
"PARCELS" shall mean, collectively, at any time, Parcels A, B, C and
D and any Buildings and other improvements then situated thereon.
"PARKING/DRIVEWAY FACILITIES" shall mean, at any time, the South
Access Roadway and such other parking lots and driveways (if any) as are then
in existence and are necessary for the use and operation of, or access to,
the Buildings, and which are located on the Parcels but outside the
boundaries of the Land, and which Landlord and Tenant have identified, in a
writing signed by both of them, as being Parking/Driveway Facilities under
and for purposes of this Lease. Park ing/Driveway Facilities will initially
include (i) the portions situated on Parcel D of (A) the cross- hatched and
shaded area adjacent to and immediately to the south of the presently
intended site for the Initial Building and (B) the strip of land extending
south and westward from such cross-hatched and shaded area and indicated as
an intended driveway, and (ii) the portion situated on Parcel B of the
cross-hatched and shaded area in the northeast portion of Parcel B identified
as "Parcel B Parking", all as shown on the preliminary site drawing attached
hereto as EXHIBIT N. Such initial Parking/Driveway Facilities are referred to
herein as the "INITIAL PARKING/DRIVEWAY FACILITIES"; and the strip of land
described in clause (ii) of the preceding sentence has, for the present time,
been designated by Landlord as the South Access Roadway (defined generally
hereinbelow).
"PERSON" shall mean and include an individual, corporation,
partnership, joint venture, estate, trust, unincorporated association,
tenancy-in-common, other business entity, Governmental Authority, and any
federal, state, county or municipal government or any bureau, department,
authority, agency or officer thereof.
"PREMISES" shall mean, at any time, the Land and Buildings (as each
such term is then defined for purposes hereof) which are then subject to this
Lease as having been leased hereunder to Tenant by Landlord. The Premises
shall initially consist of Parcel A and the Initial Building.
"RENEWAL OPTION" shall have the meaning provided in ARTICLE 46.
"RENEWAL TERM" shall have the meaning provided in ARTICLE 46.
"RENTABLE SQUARE FEET" shall mean, with respect to any rentable
space in a Building, the total floor area of the space in the Building,
expressed in square feet, measured to the outside surface
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of the Building, based on the as-built drawings of the Building, determined
by the Architect in accordance with professional standards of measurement for
similar type buildings (to the extent applicable).
"RENTAL" shall have the meaning provided in SECTION 3.4.
"REQUIREMENTS" shall have the meaning provided in SECTION 14.1(a).
"RESTORATION" shall have the meaning provided in SECTION 8.1(c).
"RESTORATION FUNDS" shall have the meaning provided in SECTION
8.2(a).
"RESTORE" shall have the meaning provided in SECTION 8.1(c).
"SECURED LENDER" shall mean a lender which is the holder or
beneficiary of a Secured Loan (or any assignee thereof) which, in the case of
a construction loan, shall be an institutional lender.
"SECURED LOAN" shall mean any loan of any kind (including, without
limitation, any renewal, extension, or modification of any Secured Loan, and
any Secured Loan which refinances any Secured Loan) which is secured by any
mortgage, deed of trust or other security instrument (whether or not
recorded) which constitutes or creates a lien, encumbrance or security
interest on any portion of or interest in Landlord's interest in and to the
Premises; provided, however, that the aggregate principal amount outstanding
under Secured Loans shall not at any time exceed the sum of Fifteen Million
Dollars ($15,000,000.00) plus the aggregate Total Construction Cost (if any)
in respect of all of the exercised Expansion Options and Additions and (to
the extent, if any, paid for with Secured Loan proceeds or Landlord's own
funds) Restorations.
"SOUTH ACCESS ROADWAY" shall mean that portion which lies entirely
within Parcel D, of a 3-lane roadway or other right of way that will provide
access from Parcel A across Parcel D to Stone Drive, the specific location of
which South Access Roadway may be designated, or moved from time to time, by
Landlord, provided that (i) any location to which it is moved provides Tenant
with reasonably equivalent access and (ii) unless such move is either
reasonably necessary to accommodate Tenant's exercise of an Option or is made
at Tenant's written request, Landlord shall construct at its expense a new
roadway substantially equivalent to the one it replaced (including curb,
gutter, and median strips) and pay the cost of Tenant's moving its sign from
the former roadway.
"TAXES" shall have the meaning provided in SECTION 4.3(a).
"TENANT" shall mean Coach Distribution Company, a Delaware
corporation; provided, however, that after such time (if any) as all of
Tenant's right, title and interest in, to and under this Lease and the
leasehold estate hereby created shall have been assigned or transferred in
accordance with the terms of this Lease, then from and after the effective
date of such assignment or transfer and the assumption hereof by a permitted
assignee pursuant to a written assignment agreement
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satisfactory to Landlord and all Secured Lenders and the release of the
assigning Tenant from its obligations hereunder as provided in SECTION 10.2
below, and until the next permitted assignment or transfer (if any), the term
"Tenant" shall mean the permitted assignee or transferee.
"TENANT'S PROPERTY" shall have the meaning provided in SECTION 11.2.
"TERM" shall have the meaning provided in ARTICLE 2.
"UNAVOIDABLE DELAYS" shall mean actual delays suffered as a direct
result of (i) strikes, lockouts, acts of God, enemy action, civil riots or
inability to obtain labor or materials due to governmental restrictions, (ii)
the wrongful failure of a party hereto to grant any consent or approval to
the other, (iii) fire or other casualty or other causes beyond the control of
the obligated party, and (iv) the breach or default of the other party to
this Lease in the performance of its obligations under this Lease, or other
act of such other party or any Person acting or claiming by, through or under
such other party, which directly prevents the obligated party from performing
its obligation hereunder; provided, however, that in each instance the party
claiming unavoidable delay shall have notified in writing the other party
thereof not later than five (5) Business Days after the incident causing the
delay shall have occurred and become known to the claiming party.
"WILMA" shall mean Wilma/Skyland Joint Venture, Ltd., a Georgia
limited partnership, and its successors.
ARTICLE 2
PREMISES AND TERM OF LEASE
Landlord does hereby demise and lease Parcel A and the Initial
Building to Tenant, and grants to Tenant, its guests, invitees and licensees
all easements, rights and privileges appurtenant thereto, and Tenant does
hereby lease and accept Parcel A and the Initial Building from Landlord, all
subject to those matters set forth on EXHIBIT B attached hereto and made a
part hereof and such other matters which either (i) result from the acts of
Tenant or any Person acting or claiming by, through or under Tenant or (ii)
have been or may hereafter be approved by Tenant (Tenant agrees that it will
not withhold or delay its approval unreasonably).
TO HAVE AND TO HOLD unto Tenant for the Term (as defined herein) and
any Renewal Terms. "TERM" means the period commencing on the Commencement
Date (as defined in the Leasehold Improvement Agreement) (the "COMMENCEMENT
DATE") and expiring at 11:59 p.m. local Jacksonville, Florida, time on the
date (the "EXPIRATION DATE") which is the first to occur of (1) the last to
occur of (a) the day (the "INITIAL EXPIRATION DATE") which is twenty (20)
years and 300 days after the date of this Lease, (b) the day preceding the
tenth anniversary of the commencement of the First Renewal Term if Tenant
exercises the First Renewal Option but not the Second Renewal Option, (c) the
day preceding the tenth anniversary of the commencement of the Second Renewal
Term if Tenant exercises both Renewal Options pursuant to ARTICLE 46, and (d)
only as to any Addition and the Parcel of land on which it is situated, which
are subjected to this Lease as a result
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of Tenant's due exercise of any Expansion Option (and not as to any other
land or Building), the last day of the period to which the Term was extended
as a result of the exercise of such Expansion Option pursuant to ARTICLE 45
hereof, and (2) such earlier date upon which the term of this Lease shall
expire or be canceled or terminated pursuant to any of the conditions,
provisions or covenants of this Lease or pursuant to law. Promptly following
the Commencement Date, and also promptly following the due exercise of any
Renewal Option or Expansion Option, the parties hereto shall enter into an
agreement or memorandum in recordable form and otherwise reasonably
satisfactory to the parties hereto, confirming (as the case may be) either
the Commencement Date or the Expiration Date as then known to the parties.
Landlord also hereby grants to Tenant a non-exclusive easement
(which Landlord may, at any time and from time to time, on reasonable notice
to Tenant, unilaterally relocate to any other location within the Parcels
that will provide Tenant with a reasonably equivalent substitute) to use the
Parking/Driveway Facilities for and during the Term.
Landlord retains and reserves the right to use, and to license and
grant to others the non-exclusive right to use, for trucks and other
vehicles, the portions situated on Parcel A of (i) the South Access Roadway
and (ii) the area (the "TRUCK STAGING AREA") on Parcel A which is adjacent to
and south of the southern edge of the Initial Building and which is
cross-hatched and shaded on EXHIBIT N attached hereto; and Tenant shall at
all times cause and allow such portions of the South Access Roadway and the
Truck Staging Area to be used by Landlord and its designees and licensees for
trucks and other vehicles.
Landlord retains, and reserves the right to transfer, any and all
development rights applicable to Parcel A which are not utilized in
connection with the Initial Building, except that Landlord will not transfer
such of those retained development rights (if any) as may be necessary to
permit the construction of additional Buildings for Tenant pursuant to such
of the Expansion Options as have not lapsed or terminated or been fully
exercised and satisfied.
ARTICLE 3
RENT
SECTION 3.1.
(a) For and during the Term, Tenant shall pay to Landlord
with respect to the initial Premises (I.E., Parcel A, the Initial Building
and all other improvements now or hereafter situated on Parcel A, and
exclusive of any Addition or other improvement that may be leased to Tenant
pursuant to its exercise of any Expansion Option), a fixed rent ("FIXED
RENT") in the respective amounts set forth below, all without any demand or
notice therefor from Landlord:
(i) an amount per annum equal to the product of $4.40
multiplied by the Rentable Square Feet of the Initial Building situated
on Parcel A, for the period beginning on the Commencement Date and
ending on the last day of the fifth (5th) Lease Year;
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(ii) an amount per annum equal to the product of
$4.90 multiplied by the Rentable Square Feet of the Initial Building
situated on Parcel A, for the period commencing on the first day of the
sixth (6th) Lease Year and ending on the last day of the tenth (10th)
Lease Year;
(iii) an amount per annum equal to the product of
$5.45 multiplied by the Rentable Square Feet of the Initial Building
situated on Parcel A, for the period commencing on the first day of the
eleventh (11th) Lease Year and ending on the last day of the fifteenth
(15th) Lease Year;
(iv) an amount per annum equal to the product of
$5.95 multiplied by the Rentable Square Feet of the Initial Building
situated on Parcel A, for the period beginning on the first day of the
sixteenth (16th) Lease Year and ending on the last day of the twentieth
(20th) Lease Year; and
(v) for any period within any Renewal Term, Fixed
Rent determined as provided in ARTICLE 46 hereof.
(b) Prior to the Commencement Date, the Architect (as
defined in the Leasehold Improvement Agreement) shall certify to the parties
in writing, the number of Rentable Square Feet of the Initial Building. Such
certification shall be binding and conclusive upon the parties, absent
manifest error.
(c) In the event Tenant exercises any Expansion Option,
Tenant shall also pay to Landlord, in addition to the Fixed Rent provided for
in SECTION 3.1(a) above, Fixed Rent for the applicable Addition as determined
in accordance with ARTICLE 45.
(d) In the event Tenant exercises any of the Renewal
Options, Tenant shall pay Fixed Rent for the entire Premises (I.E., all Land
and Buildings, including, without limitation, Parcel A and the Initial
Building) for the applicable Renewal Term as determined in accordance with
ARTICLE 46.
(e) Fixed Rent shall be due and payable in equal monthly
installments in advance, on the Commencement Date and on the first day of
each calendar month thereafter during the Term, and (as to any Renewal Term)
on the first day of such Renewal Term and on the first day of each calendar
month thereafter during such Renewal Term. The monthly installment of Fixed
Rent for any partial calendar month shall be prorated based on the number of
actual days in such partial calendar month.
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SECTION 3.2.
(a) Fixed Rent (as the amount of such Fixed Rent may be
adjusted as expressly provided in SECTION 9.3(c), ARTICLES 45 and 46, and
EXHIBIT C), shall be absolutely net to Landlord without any abatement,
counterclaim, offset, exception, qualification, or (except such as is
expressly provided for in SECTION 48.2 hereof) deduction or reduction
whatsoever.
(b) Except for debt service on any indebtedness owed by
Landlord to a Person other than Tenant or Guarantor, and except as expressly
required to be paid by Landlord or another Person by the express provisions
of SECTION 3.3 or any other provision herein, Tenant shall pay all costs,
expenses and charges of any and every kind and nature whatsoever (including,
without limitation, Impositions [defined hereinafter], Taxes and insurance)
of, for or relating to all of the Parcels or the ownership, use, operation,
management, maintenance and repair thereof, which arise or become due or
payable for, during, with respect to, or after (but attributable to a period
falling within) the Term or any Renewal Term, even though Tenant may not own,
lease, or have any right to use or occupy some or all of such Parcels.
Impositions, Taxes, and all other amounts payable by Tenant hereunder shall
be prorated for any partial Lease Year within the Term or any Renewal Term.
SECTION 3.3.
(a) Notwithstanding SECTION 3.2 above, Tenant shall not be
liable for the costs or other obligations (including, but not limited to,
Impositions) described in SECTION 3.2(b) relating to Parcel B first arising
and accruing from and after the later of (i) the eighth anniversary of the
Commencement Date and (ii) the first anniversary of the earlier to occur of
(A) the date of Tenant's written notice to Landlord that Tenant irrevocably
and unconditionally waives and releases all rights to exercise both of the
First Parcel B Expansion Option and the Second Parcel B Expansion Option or
(B) the date as of which both the First Parcel B Expansion Option and the
Second Parcel B Expansion Option have expired unexercised, it being
understood and agreed that the excusal of Tenant from the payment of such
costs relating to Parcel B which is provided for in this SECTION 3.3(a) shall
be void and of no force or effect if either the First Parcel B Expansion
Option or the Second Parcel B Expansion Option is exercised or is still
available for exercise.
(b) Notwithstanding SECTION 3.2 above, Tenant shall not be
liable for the costs or other obligations (including, but not limited to,
Impositions) described in SECTION 3.2(b) relating to Parcel C first arising
and accruing from and after the later of (i) the eighth anniversary of the
Commencement Date and (ii) the first anniversary of the earlier to occur of
(A) the date of Tenant's written notice to Landlord that Tenant irrevocably
and unconditionally waives and releases all rights to exercise the Office
Facility Option or (B) the date upon which the Office Facility Option shall
have expired unexercised, it being understood and agreed that the excusal of
Tenant from the payment of such costs relating to Parcel C which is provided
for in this SECTION 3.3(b) shall be void and of no force or effect if the
Office Facility Option is exercised or is still available for exercise.
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(c) Notwithstanding SECTION 3.2 above, Tenant shall not be
liable for the costs or other obligations (including, without limitation,
Impositions) described in SECTION 3.2(b) relating to Parcel D first arising
and accruing from and after the date (if it should occur during the Term) as
of which, pursuant to the provisions of SECTIONS 3.3(a) and (b) above, Tenant
ceases to be liable for the costs and other obligations described in SECTION
3.2(b) relating to Parcel B.
SECTION 3.4. All amounts of any and every kind whatsoever payable by
Tenant pursuant to this Lease (collectively, "RENTAL"), including (without
limitation) Fixed Rent, Impositions and all other amounts payable by Tenant
under this Lease (other than Late Charges) shall constitute rent under this
Lease, and all of the portions, amounts or components of Rental which are to
be paid to Landlord pursuant to the provisions of this Lease shall be paid by
wire transfer of immediately available funds in accordance with written wire
transfer instructions provided by Landlord to Tenant from time to time, and
all of the portions, amounts or components of Rental which are payable to any
Persons other than Landlord shall be paid in full to the proper payees
thereof, timely and by the time provided therefor in this Lease (or if the
time for such payments is not expressly provided for in this Lease, then
before the same becomes delinquent or past-due or any late payment penalty or
charge becomes due with respect thereto. All Rental paid under this Lease to
Persons other than Landlord who are the proper payees thereof shall be, and
be construed as, payments made by Tenant for the benefit of Landlord. Tenant
shall pay all Rental provided for in this Lease notwithstanding any casualty,
destruction of the Buildings and other improvements, act of God, or any other
event or occurrence of any kind and notwithstanding that Tenant does not own,
lease, occupy or use (or have any right to acquire, lease, occupy or use)
some or all of the Parcels, and in no event whatsoever shall there ever be
any diminution or abatement of any Rental except in the specific
circumstances, and to the specific extent, if any, expressly and specifically
provided in this Lease.
SECTION 3.5. Omitted.
SECTION 3.6. Omitted.
SECTION 3.7. No payment by Tenant or receipt or acceptance by
Landlord of a lesser amount than the correct amount of any Rental shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this Lease or at law provided.
SECTION 3.8. If any of the Fixed Rent, Impositions or any other
Rental payable under the terms and provisions of this Lease shall be or
become uncollectible, reduced or required to be refunded because of any rent
control or similar act or law enacted by a Governmental Authority, Tenant
shall enter into such agreements and take such other steps (without
additional expense or liability to Tenant) as Landlord may reasonably request
and as may be legally permissible to permit Landlord to collect the maximum
rents which from time to time during the continuance of such legal rent
restriction may be legally permissible (and not in excess of the amounts
reserved therefor under
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this Lease). Upon the termination of such legal rent restriction, (a) the
Rental in question shall become and thereafter be payable in accordance with
the amounts reserved herein for the periods following such termination, and
(b) if permitted by law, Tenant shall pay to Landlord, to the maximum extent
legally permissible, an amount equal to (i) the amount of the Rental in
question which would have been paid pursuant to this Lease but for such legal
rent restriction less (ii) the amounts with respect to such Rental paid by
Tenant during the period such legal rent restriction was in effect, plus
interest on the net excess of (i) over (ii) at a reasonable rate agreed upon
by the parties (and absent such agreement, at the rate of 8% per annum).
ARTICLE 4
IMPOSITIONS
SECTION 4.1. Tenant covenants and agrees to pay or cause to be paid,
as hereinafter provided, at Tenant's option either to Landlord or to the
Governmental Authority or other Person imposing the same or to whom the same
may be due and payable, all of the following items (collectively,
"IMPOSITIONS") which accrue in or relate to any period beginning on or after
the Commencement Date (except to the extent, if any, that any of such items
are paid by Wilma or the Association): (a) Taxes (defined hereinafter) and
real property assessments, (b) personal property taxes, (c) occupancy and
rent taxes, (d) water, water meter and sewer rents, rates and charges, (e)
excises, (f) levies, (g) license and permit fees, (h) service charges with
respect to police protection, fire protection, common area maintenance,
sanitation and water supply, if any, (i) Association assessments and charges,
and (j) fines, penalties and other similar or like charges applicable to the
foregoing and any interest or costs with respect thereto (only to the extent
incurred by reason of Tenant's wrongful act or omission or Tenant's failure
timely to pay the same or otherwise fully and timely to comply with any
provision of this Lease), to the extent that at any time during the Term or
any Renewal Term, such items listed in clauses (a) through (j) of this
SECTION 4.1 are assessed, levied, confirmed, imposed upon, or would grow or
become due and payable out of or in respect of, or would be charged with
respect to: (A) the Parcels or any personal property, Equipment or other
facility used in the operation thereof, (B) any document (other than this
Lease) by which Tenant directly or indirectly creates or transfers any
interest or estate in the Parcels, (C) the use and occupancy of the Parcels
by Tenant or any Person by, through or under Tenant, or (D) the Rental (or
any portion thereof) payable by Tenant hereunder. Each such Imposition, or
installment thereof, during the Term or any Renewal Term shall be paid at
least five (5) days before the last day the same may be paid without fine,
penalty, interest or additional cost; provided, however, that if, by law, any
Imposition may at the option of the taxpayer be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition),
Tenant may exercise the option to pay the same in such installments and shall
be responsible for the payment of such installments only (including, without
limitation, any interest or late payment charges payable thereon or in
connection therewith); provided, however, that all such installment payments
relating to periods prior to the date definitely fixed for the expiration of
the Term or any Renewal Terms shall be made prior to the Expiration Date.
SECTION 4.2. If Tenant, or Landlord upon receipt from Tenant, is
paying any Imposition directly to the Governmental Authority or other Person
imposing the same, then each party, from
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time to time upon the request of the other party, shall furnish evidence
reasonably satisfactory to the requesting party evidencing the payment of the
Imposition.
SECTION 4.3.
(a) "TAXES" shall mean and include (i) any and all real
property or other ad valorem taxes assessed or levied against or with respect
to the Parcels or any part thereof, and (ii) sales, rental, or other similar
taxes on commercial rents and (iii) fines, penalties and other similar or
like governmental charges applicable to the foregoing taxes or charges and
any interest or costs with respect thereto.
(b) Nothing herein contained shall require Tenant to pay
municipal, state or federal income, inheritance, estate, succession, capital
levy, transfer or gift taxes of Landlord, or any corporate franchise tax
imposed upon Landlord or any gross income or gross receipts taxes imposed
upon Landlord, unless such tax is imposed in lieu of any of the taxes
described in the preceding SECTION 4.3(a).
SECTION 4.4. Any Imposition relating to a fiscal period of the
imposing Governmental Authority or other Person, a part of which period is
included within the Term or any Renewal Term and a part of which is included
in a period of time prior to or after the Term or any Renewal Term, shall be
apportioned between Landlord and Tenant as of the Commencement Date or
Expiration Date, as the case may be, so that Tenant shall pay that portion of
such Imposition which that part of such fiscal period included in the period
of time on or after the Commencement Date and before the Expiration Date.
SECTION 4.5. Tenant shall have the right, to the extent permitted by
law, at its own expense, to contest the amount or validity, in whole or in
part, of any Imposition it is obligated hereunder to pay, by appropriate
proceedings diligently conducted in good faith. Notwithstanding the
provisions of SECTION 4.1 hereof, payment of such Imposition shall be
postponed if, and only as long as none of the Parcels nor any part thereof,
nor any part of the rents, issues and profits thereof, would, by reason of
such postponement or deferment, be, in the reasonable judgment of Landlord,
in danger of being forfeited or lost, in which event the Tenant shall pay
such Imposition or post a bond or other security sufficient to postpone
forfeiture or levy. Upon the termination of such proceedings, including
appeals, it shall be the obligation of Tenant to pay the amount of such
Imposition or part thereof as finally determined in such proceedings or
appeals, the payment of which may have been deferred during the prosecution
of such proceedings, together with any costs, fees (including attorneys' fees
and disbursements), interest, penalties or other liabilities in connection
therewith.
SECTION 4.6. Tenant shall have the right, to the extent permitted by
law, and at Tenant's sole cost and expense, to seek a reduction in the
valuation of the Parcels assessed for real property tax purposes and to
prosecute any action or proceeding in connection therewith; provided,
however, that during the last year of the Term (and any Renewal Term, if
applicable), Landlord (and not Tenant) shall have the right (but no
obligation), at Landlord's cost and expense, to seek a reduction in the
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valuation of the Parcels assessed for real property tax purposes and to
prosecute any action or proceeding in connection therewith.
SECTION 4.7.
(a) Landlord shall not be required to join in any
proceedings referred to in SECTION 4.5 or 4.6 hereof unless the provisions of
any law, rule or regulation at the time in effect shall require that such
proceedings be brought by or in the name of Landlord, in which event Landlord
shall join and cooperate in such proceedings or permit the same to be brought
in its name, but shall not be liable for the payment of any costs or expenses
in connection with any such proceedings, and Tenant shall reimburse Landlord
for, and indemnify and hold Landlord harmless from and against, any and all
costs or expenses which Landlord may reasonably pay, sustain or incur in
connection with any such proceedings.
(b) Tenant shall not be required to join in any proceedings
referred to in the proviso at the end of 4.6 hereof unless the provisions of
any law, rule or regulation at the time in effect shall require that such
proceedings be brought by or in the name of Tenant, in which event Tenant
shall join and cooperate in such proceedings or permit the same to be brought
in its name, but shall not be liable for the payment of any costs or expenses
in connection with any such proceedings, and Landlord shall reimburse Tenant
for, and indemnify and hold Tenant harmless from and against, any and all
costs or expenses which Tenant may reasonably pay, sustain or incur in
connection with any such proceedings.
SECTION 4.8. Any certificate, advice or bill of the appropriate
official designated by law to make or issue the same or to receive payment of
any Imposition asserting non-payment of such Imposition shall be prima facie
evidence that such Imposition is due and unpaid at the time of the making or
issuance of such certificate, advice or bill, at the time or date stated
therein.
ARTICLE 5
MONTHLY DEPOSITS
From and after the occurrence of a monetary Event of Default
hereunder, at Landlord's request Tenant shall deposit with Landlord, on a
monthly basis together with Fixed Rent, one-twelfth of such amount as, in
Landlord's reasonable judgment, is necessary so that Landlord will have
sufficient funds on deposit to pay when due all Taxes, Impositions and
insurance required to be paid by Tenant hereunder. In the event that at any
time Landlord reasonably believes that it will have insufficient funds on
hand based on the foregoing deposits, Landlord may require additional
deposits, as necessary. Any such deposits shall be maintained by Landlord in
a segregated interest-bearing account. All such deposits shall be deemed the
property of Tenant and held in trust by Landlord, and all income thereon
shall be deemed Tenant's income for purposes of federal and other income
taxes, but Tenant shall not have access to, or direct the withdrawal or
payment of, any funds in such account. If after payment of Taxes, Impositions
and insurance for any Taxable Year, Landlord continues to hold any excess
funds (including interest) which had been deposited by Tenant with
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Landlord, Landlord shall within thirty (30) days after payment of the Taxes,
Impositions and insurance for said Taxable Year return any excess funds to
Tenant, provided, however, that if an Event of Default exists (and any
applicable cure period has expired), such excess may continue to be held, or
may be credited, by Landlord against future amounts due or to become due or
payable by Tenant hereunder.
ARTICLE 6
LATE CHARGES
If payment of any Fixed Rent, Impositions or any other Rental shall
not have been paid in accordance with the provisions of SECTION 3.1, SECTION
3.4, or any other applicable provision hereof by the seventh day after the
date on which such amount was due and payable under this Lease, a late charge
("LATE CHARGE") on the amount overdue at the rate ("LATE CHARGE RATE") of
fifteen percent (15%) per annum from the date on which such amount was first
due and payable until the date paid in full, shall at Landlord's option be
payable as partial damages for Tenant's failure to make prompt payment, in
addition to any other right or remedy of Landlord under this Lease. Late
Charges shall be payable on demand. Nothing contained in this ARTICLE 6 and
no acceptance of Late Charges by Landlord, shall be deemed to extend or
change the time for payment of Fixed Rent, Impositions or any other Rental.
No failure by Landlord to insist upon the strict performance by Tenant of its
obligations to pay Late Charges shall constitute a waiver by Landlord of its
right to enforce the provisions of this ARTICLE 6 in any instance thereafter
occurring. The provisions of this ARTICLE 6 relate only to the imposition of
Late Charges and shall not be construed in any way to create any grace period
with respect to any Default or to extend the grace periods or notice periods
provided for in ARTICLE 25.
ARTICLE 7
INSURANCE
SECTION 7.1.
(a) Subject to the provisions herein, throughout the Term
or any Renewal Terms, Tenant at its sole cost and expense shall:
(i) keep all Buildings or cause all Buildings to be
kept insured under an "All Risk of Physical Loss" form of policy, also
providing coverage for loss or damage by water, flood, subsidence and
earthquake, and including coverage for changes in ordinances and laws
by governmental authority resulting in consequential and contingent
liabilities or increases in costs of construction, with such limits as
are reasonably required by Landlord from time to time, and with
deductibles not to exceed $100,000.00, except that the deduct ible may
be $250,000.00 for loss or damage by flood and $500,000.00 for loss or
damage by subsidence or earthquake, and excluding from such coverage
normal settling only, and including war risks when and to the extent
obtainable from the United States government or an agency thereof; such
insurance to be in the amount set forth in the "agreed amount clause"
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endorsement to the policy in question, which endorsement shall be
attached to the policy, provided that such amount shall be sufficient
to prevent Landlord and Tenant from becoming co-insurers under
provisions of applicable policies of insurance; and in the absence of
such "agreed amount clause" endorsement, such insurance shall meet the
requirements of this SECTION 7.1(a)(i) and shall be in an amount not
less than one hundred percent (100%) of the actual full replacement
cost (without reduction for depreciation or other matters) of all
Buildings.
(ii) provide and keep, or cause to be provided and
kept, in force comprehensive general liability insurance against
liability for bodily injury and death and property damage, it being
agreed that such insurance shall be in an amount as may from time to
time be reasonably required by Landlord, but not less than
$20,000,000.00 combined single limit for liability for bodily injury,
death and property damage; such insurance shall include all of the
Parcels and all sidewalks adjoining or appurtenant to the Parcels,
shall contain blanket contractual coverage and shall also provide the
following protection:
(1) completed operations;
(2) personal injury protection (exclusions a
and c of current forms deleted);
(3) sprinkler leakage-water damage legal
liability; and
(4) fire legal liability, if not otherwise
covered under the comprehensive form of public liability
insurance.
(iii) provide and keep, or cause to be provided and
kept in force, automobile liability and property damage insurance for
all owned, non-owned and hired vehicles insuring against liability for
bodily injury and death and for property damage in an amount as may
from time to time (but not more often than once every three (3) years)
be reasonably required by Landlord but not less than $3,000,000.00
combined single limit, such insurance to contain the so-called
"occurrence clause";
(iv) provide and keep, or cause to be provided and
kept in force, workers' compensation providing statutory benefits for
all persons employed by Tenant at or in connection with the Parcels;
(v) if a sprinkler system shall be located in any
portion of any Building, provide and keep, or cause to be provided and
kept in force, sprinkler leakage insurance in amounts reasonably
required by Landlord;
(vi) provide and keep, or cause to be provided and
kept, in force boiler and machinery insurance in an amount as may from
time to time be reasonably required by
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Landlord but not less than $10,000,000.00 per accident on a combined
basis covering direct property loss and loss of income and providing
for all steam, mechanical and electrical equipment, including without
limitation, all boilers, unfired pressure vessels, piping and wiring;
(vii) provide and keep, or cause to be provided and
kept, in force such other insurance in such amounts as either (A)
Landlord may reasonably require (including, without limitation,
insurance against loss or damage to landscaping and to irrigation and
lawn sprinkler systems) or (B) Landlord may from time to time be
required to carry by any Secured Lender, in either such case against
such other insurable risks or hazards as at the time are commonly
insured against in the case of prudent owners of like buildings,
improvements and property.
(b) All insurance provided or caused to be provided by
Tenant as required by this Section 7.1 (except the insurance under SECTION
7.1(a)(iv)) shall name Tenant as a named insured and Landlord as a named
insured and a loss payee and shall include a so-called "Landlord Protective
Insurance" rider or endorsement providing, among other things, that Landlord
has full rights to the full amount of the policy. The coverage provided or
caused to be provided by Tenant as required by SECTIONS 7.1(a)(i), 7.1(a)(v)
and 7.1(a)(vi), 7.1(a)(vii) and any property insurance required to be
maintained pursuant to SECTION 7.1(a) shall also name as an additional
insured and (if Landlord so requests) also as an additional loss payee, under
a standard noncontributing mortgagee clause, each Secured Lender which
Landlord requests Tenant so to name. The coverage provided or caused to be
provided by Tenant as required by SECTIONS 7.1(a)(ii) and 7.1(a)(iii) and any
liability insurance provided or caused to be provided by Tenant shall also
name each Secured Lender as an additional insured.
SECTION 7.2.
(a) The loss under all policies required by any provision
of this Lease insuring against damage to the Buildings by fire or other
casualty shall be payable jointly to Landlord or its designee, Tenant and (if
Landlord so designates) Secured Lenders, for application in accordance with
ARTICLE 8 hereof.
(b) All insurance required by any provision of this Lease
shall be in such form as is reasonably acceptable to Landlord and shall be
issued by any insurance company licensed and authorized to do business in the
State of Florida and having a Best's Insurance Reports (or any successor
publication of comparable standing) rating of A XIII (or the then-equivalent
of such rating) or better or by any other insurance company approved in
writing by Landlord. All policies referred to in this Lease shall be
procured, or caused to be procured, by Tenant, at no expense to Landlord and
for periods of not less than one (1) year. Prior to the commencement of the
term of each such policy, Tenant shall deliver to Landlord the following: (i)
a certificate of insurance issued by the insurance carrier (not a broker or
agent) evidencing all coverages required by this Lease and the respective
amounts and limits thereof, such certificate to be satisfactory in all
respects to Landlord
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and to each Secured Lender (in each such Secured Lender's absolute and
unqualified discretion); and (ii) such additional evidence of insurance (if
any) as any Secured Lender may, in its absolute discretion, require. Tenant
hereby agrees to defend, indemnify and hold harmless Landlord and all Secured
Lenders from and against any and all losses, liabilities, damages, costs,
expenses and claims of any and every kind whatsoever which any or all of them
may pay, incur or sustain, or which may be asserted against them, as a
consequence or result of Tenant's having failed to obtain, carry or maintain
any insurance coverage required by the provisions of this Lease. A similar
certificate of insurance for any new or renewal policy that replaces any
policy expiring during the Term or any Renewal Term, together with any
additional evidence of such insurance that any Secured Lender may, in its
absolute discretion, require, shall be delivered to Landlord as aforesaid at
least twenty-five (25) days prior to the date of expiration of the old
policy, together with proof reasonably satisfactory to Landlord that all
premiums thereon have been paid for at least the first twelve months
following the date of such certificate.
(c) Tenant and Landlord shall cooperate in connection with
the collection of any insurance moneys that may be due in the event of loss,
and Tenant and Landlord shall execute and deliver such proofs of loss and
other instruments which may be reasonably required for the purpose of
obtaining the recovery of any such insurance moneys.
(d) All property insurance policies as required by this
Lease shall provide in substance that all adjustments for claims shall be
made with the written consent of Landlord subject to the respective rights of
Tenant and any Secured Lender as an insured or additional insured to
participate in making such adjustment.
(e) Tenant shall not violate or permit to be violated any
of the conditions or provisions of any insurance policy required hereunder,
and Tenant shall so perform and satisfy or cause to be performed and
satisfied the requirements of the companies writing such policies so that at
all times companies of good standing, reasonably satisfactory to Landlord (as
provided in SECTION 7.2(b) hereof), shall be willing to write and continue
such insurance.
(f) Each policy of insurance required to be obtained or
caused to be obtained by Tenant as herein provided, and each certificate or
memorandum therefor issued by the insurer, shall contain (i) a provision that
no act or omission of Tenant, Landlord or any Secured Lender shall affect or
limit the obligation of the property insurance company to pay Landlord or any
Secured Lender the amount of any loss sustained, (ii) an agreement by the
insurer that such policy shall not be canceled or modified without at least
thirty (30) days' prior written notice to Landlord and each Secured Lender,
and (iii) a provision authorizing the waiver of subrogation by Tenant and
Landlord of any right to recover the amount of any loss resulting from the
negligence of the other or its agents, employees or licensees.
SECTION 7.3. Notwithstanding any contrary provision contained in
this Lease, Tenant hereby waives any and all rights of recovery, claim,
action, or cause of action against Landlord or its partners, agents,
contractors or employees, for any loss or damage that may occur to the
Premises
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or the Parcels, or any property of Tenant therein or thereon, by reason of
fire, the elements, or any other cause which is, or is required to be,
insured against under insurance policies carried or required to be carried by
Tenant under this Lease, regardless of cause or origin, including negligence
of Landlord or its partners, agents, contractors or employees, and Tenant
covenants that no insurer shall hold any right of subrogation against
Landlord or any of such other Persons and all such insurance policies shall
be amended or endorsed to reflect such waiver of subrogation.
SECTION 7.4. The insurance required by this Lease, at the option of
Tenant, may be effected by blanket and umbrella policies issued to Tenant
covering the Parcels and other properties owned or leased by Tenant;
provided, however, that any such blanket policies shall (a) separately set
forth the amount of the insurance applicable to the Parcels, (b) otherwise
comply with the provisions of this Lease, and (c) afford the same protection
and rights to Landlord as would be provided by policies individually
applicable to the Parcels.
ARTICLE 8
USE OF INSURANCE PROCEEDS
SECTION 8.1.
(a) If all or any part of any of the Buildings or access
thereto shall be destroyed or damaged in whole or in part by fire or other
casualty, Tenant shall give to Landlord immediate notice thereof.
(b) If any such casualty damage or destruction shall (i)
occur at any time during the last two years of the Term or any Renewal Term,
(ii) render the Premises or a substantial portion thereof unusable for
Tenant's uses hereunder (or the permitted uses of Tenant's assignee or
sublessee), and (iii) cost more than $5,000,000.00 to restore, then Landlord
or Tenant may in their sole discretion (but subject to any conditions
precedent set out elsewhere in this SECTION 8.1), by written notice given to
the other within ten (10) days after such damage or destruction, terminate
this Lease (except that if, within such 10-day period, Tenant notifies
Landlord that it wishes to extend such period from 10 days to any date
specified in the notice which is not later than three months after the date
of such damage or destruction, and Tenant acknowledges in writing that it
will continue to pay all Rental hereunder and be responsible for all other
obligations of Tenant hereunder for and during such period, then if no
Default has occurred such 10-day period shall be extended to the date
requested in such notice for the benefit of both Landlord and Tenant, each of
whom may terminate this Lease during that period as provided in this
sentence), in which case Landlord may obtain and retain all insurance
proceeds payable for or on account of such damage or loss for Landlord's own
account and, if Tenant makes the payments to Secured Lenders (if any)
required by the last sentence of this paragraph, this Lease shall thereafter
be of no further effect; provided, however, that Tenant shall have the right
to nullify any Landlord termination by duly and timely exercising any Renewal
Option pursuant to ARTICLE 46 (if then available for exercise pursuant to the
provisions of said ARTICLE 46). If Tenant terminates this Lease and the
insurance proceeds paid to Landlord are insufficient to satisfy all amounts
due on outstanding Secured Loans, then Tenant, on behalf of
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Landlord, shall pay to each Secured Lender such Secured Lender's share of
such deficiency so that all of such Secured Loans shall be paid and satisfied
in full (and Tenant's payment of such deficiency shall be a condition
precedent to the effectiveness of Tenant's termination of this Lease);
provided, however, that the aggregate amount Tenant shall be obligated so to
pay to all of the Secured Lenders on account of all of the Secured Loans
taken together shall be calculated in the same manner, and shall be subject
to the same limitation as to the principal indebtedness component thereof, as
is applicable to the Shortfall (defined hereinafter).
(c) If any such damage or destruction does not result in
termination of this Lease in accordance with SECTION 8.1(b), and provided
that all monies or proceeds received by Landlord and Secured Lender from
insurance provided herein (payable to either, both or jointly) (other than
rent insurance) are deposited into a segregated interest-bearing escrow
account (which account is not available to satisfy claims of such Secured
Lender's general creditors) with Secured Lender and made available for
Restoration (defined herein), Tenant, at its sole cost and expense, for the
benefit of Landlord, whether or not such damage or destruction shall have
been insured or insurable, and whether or not insurance proceeds (if any)
shall be sufficient for the purpose, with reasonable diligence (subject to
Unavoidable Delays) shall repair, alter, restore, replace and rebuild or
allow Landlord (at Tenant's sole cost and expense) to repair, alter, restore,
replace and rebuild (collec tively, "RESTORE"; and the work with respect
thereto is referred to herein collectively as "RESTORA TION") or cause to be
Restored the same, to at least the extent of the value and as nearly as
practicable to the character of the Building existing immediately prior to
such occurrence (but in all events in compliance with all applicable laws and
codes and the CC&Rs) and otherwise in substantial conformity with the Final
Plans therefor; and Landlord shall in no event be called upon to Restore any
Building or to pay any of the costs or expenses thereof. In the event all
monies or proceeds received by Landlord and Secured Lender from insurance
provided herein (payable to either, both or jointly) (other than rent
insurance) are, through no fault of Tenant, not (within a reasonable time
after such receipt thereof) made available for Restoration and are not
maintained in an escrow account maintained by Secured Lender, Tenant, at
Tenant's option, may terminate this Lease upon at least 15 Business Days'
prior written notice to Landlord and Secured Lender, in which event Tenant
shall (if such monies are not, within such 15-day period, deposited with the
Secured Lender or otherwise made available for Restoration) be relieved of
all obligations hereunder (but any such purported termination by Tenant will
be ineffective if, within such 15-day period, such monies are deposited with
the Secured Lender or otherwise made available for Restoration). If Tenant
either (i) fails or neglects to Restore or cause to be Restored with
reasonable diligence (subject to Unavoidable Delays) the Buildings or the
portions thereof so damaged or destroyed or (ii) having so commenced such
Restoration, fails to complete or cause to be completed the same with
reasonable diligence (subject to Unavoidable Delays) in accordance with the
terms of this Lease, then Landlord or Secured Lender may complete such
Restoration for Tenant's account and at Tenant's sole cost and expense. For
purposes of ARTICLES 8 and 9, the "RESTORING PARTY" shall mean Tenant; or, if
Tenant allows Landlord, and Landlord (in its sole and absolute discretion)
agrees, to be responsible for the Restoration, or if Landlord undertakes to
restore in the event Tenant refuses or otherwise fails diligently to restore,
Restoring Party shall then mean Landlord.
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SECTION 8.2.
(a) Subject to the provisions of SECTION 8.3, Secured
Lender shall release to Restoring Party or to Restoring Party and its
contractor(s) from time to time, upon the following terms and conditions, any
monies or proceeds received by Landlord or Secured Lender from insurance
provided herein (payable to either, both or jointly) (other than rent
insurance) or cash or the proceeds of any security deposited with Secured
Lender pursuant to SECTION 8.5 (collectively, "RESTORATION FUNDS"). Secured
Lender shall release to Restoring Party, as hereinafter provided, the
Restoration Funds, for the purpose of Restoration to be made by Restoring
Party to Restore the Buildings to a value not less than their value prior to
such fire or other casualty. Such Restoration shall be done in accordance
with, and subject to, the provisions of ARTICLE 13, including, without
limitation, the maintenance of the insurance coverage referred to in SECTION
13.1(d). The Restoration Funds shall be paid to or for the account of
Restoring Party from time to time in installments as the Restoration
progresses, upon application to be submitted from time to time by Restoring
Party to the Secured Lender(s) as described in SECTION 8.3. The amount of any
installment to be paid to or for the account of Restoring Party shall be such
portion of the total Restoration Funds as the cost of work, labor, services,
materials, fixtures and equipment theretofore incorporated in the Restoration
bears to the total estimated cost of the Restoration, less (i) all payments
thereto fore made to or for the account of the Restoring Party out of the
Restoration Funds and (ii) a sum equal to ten percent (10%) of the amount so
determined, the sums held back pursuant to this clause (ii) to be paid to or
for the account of Restoring Party in the last installment of Restoration
Funds upon the final completion of the Restoration. Upon payment in full for
the Restoration, the balance (if any) of the Restoration Funds consisting of
insurance proceeds shall be paid first to reimburse Tenant for the reasonable
out-of-pocket costs (if any) paid by Tenant to the engineer or architect
described in SECTION 8.2(B) for its cost estimate referred to therein, then
to reimburse Landlord for the reasonable costs (if any) paid by Landlord to
the engineer or architect described in SECTION 8.2(b) for its cost estimate
referred to therein, then subject to the rights of any Secured Lender named
as an insured, any remainder shall be paid to Landlord for its own account
and, to the extent such balance consists of sums deposited by Tenant, shall
(after first paying to Landlord therefrom an amount necessary to reimburse it
for the reasonable costs, if any, paid by Landlord to the engineer or
architect described in SECTION 8.2(b) for its cost estimate referred to
therein) be paid over to Tenant. Subject to the provisions herein, in the
event that the Restoration Funds are insuffi cient for the purpose of paying
for the Restoration, Tenant nevertheless shall be required to cause the
Restoration to be made, and shall pay or cause to be paid any additional sums
required for the Restoration.
(b) Prior to the making of any Restoration which Tenant is
required to make pursuant to SECTION 8.1, Tenant shall furnish Landlord with
an estimate of the cost of such Restoration, prepared by a licensed
professional engineer or registered architect approved by Landlord and (if
Landlord so requests) any Secured Lender, which approval shall not be
unreasonably withheld. Landlord, at its election, may engage a licensed
professional engineer or registered architect to prepare its own estimates of
the cost of such Restoration.
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(c) In the event of damage to or destruction of any
Building, if any emergency situation arises involving imminent danger either
to human life or safety or of further substantial damage to the Premises,
Tenant may (at Tenant's sole cost, expense, liability and risk) take such
emergency actions on a temporary basis as are necessary to avoid such danger,
but Tenant shall not be relieved of any of its obligations under this Lease
(including, without limitation, its obligations concerning Restoration or the
application of all insurance proceeds to Restoration) and none of such
obligations shall be reduced, diminished, deferred or affected in any way.
SECTION 8.3. The following shall be conditions precedent to each
payment made to Restoring Party as provided in SECTION 8.2:
(a) there shall be submitted to the other party and the
Secured Lender disbursing the Restoration Funds a certificate from the
aforesaid engineer or architect (and, if required by the Secured Lender, also
a similar certificate from such Secured Lender's own inspecting architect or
engineer) stating (i) that the sum then requested to be withdrawn either has
been paid by Restoring Party or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other Persons (whose names and
addresses shall be stated) who have rendered or furnished work, labor,
services, materials, fixtures or equipment for the work and giving a brief
description of such work, labor, services, materials, fixtures or equipment
and the principal subdivisions or categories thereof and the several amounts
so paid or due to each of said Persons in respect thereof, and stating in
reasonable detail the progress of the Restoration up to the date of said
certificate; (ii) that the sum then requested does not exceed the value of
the work, labor, services, materials, fixtures and equipment described in the
certificate; (iii) that the balance of the Restoration Funds held by Secured
Lender will be sufficient, upon completion of the Restoration, to pay for the
same in full, and stating in reasonable detail an estimate of the cost of
such completion; and (iv) that to the best of such persons's knowledge all
work had been done in a good and workmanlike manner and in substantial
compliance with the plans and specifications therefor which had been approved
by Landlord and/or Secured Lender and with all applicable laws, ordinances
and the CC&R's; and
(b) there shall be submitted to the other party and to the
Secured Lender disbursing the Restoration Funds a contractor's sworn
statement or affidavit in statutory form relating to all work done to date
for which payment is then being requested from the general contractor and all
appropriate subcontractors, together with supporting lien waivers in
statutory form from the general contractor and all subcontractors and
materialmen (all tiers) filing notices to owner or otherwise may have a
lawful claim to a lien, as well as all other customary documentation (if any)
as may reasonably be required by any Secured Lender; and
(c) with respect to any final payment, Restoring Party
shall furnish to the other party and the Secured Lenders a final contractor's
affidavit (with supporting lien waivers) in statutory form and an affidavit
from Restoring Party that all parties having rights to lien the Premises have
been paid in full; and
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(d) at the time of making such payment, no uncured Event of
Default exists (the condition precedent described in this clause (d) may be
waived in writing by Landlord, in its absolute discretion, unilaterally and
without the joinder or consent of any other Person).
SECTION 8.4. If any material loss, damage or destruction occurs,
Restoring Party shall furnish or cause to be furnished to the other party and
all Secured Lenders holding a lien on or security interest in any of the
damaged property or otherwise affected by such loss, at least ten (10) days
before the commencement of any Restoration which Restoring Party is required
or elects or is deemed to have elected to make pursuant to SECTION 8.1, the
following:
(a) complete plans and specifications for the Restoration
of the Building, prepared by a licensed professional engineer or registered
architect whose qualifications shall meet with the reasonable approval of the
other party and such Secured Lenders, and, at the request of the other party,
any other drawings, information and samples that the other party may
reasonably request, all of the foregoing to be subject to the other party's
and such Secured Lenders' review and approval for substantial conformity with
the Final Plans;
(b) a general contract to perform the Restoration work for
a stipulated sum or for cost plus a fee with an upset price, in form
assignable to the other party and such Secured Lenders, made with a reputable
and responsible contractor, providing in substance for (i) the completion of
the Restoration with reasonable diligence, subject to Unavoidable Delays, in
accordance with said plans and specifications, free and clear of all liens,
encumbrances, security agreements, interests and financing statements, and
(ii) a payment and performance bond by sureties reasonably satisfactory to
the other party and such Secured Lenders, naming the contractor as principal
and the other party and such Secured Lenders as dual obligees, in a penal sum
equal to the amount of such contract, or a clean irrevocable negotiable
letter of credit or other security reasonably satisfactory to the other party
and such Secured Lenders in an amount equal to the amount of such contract;
and
(c) if Landlord is not the Restoring Party, an assignment
to Landlord of the contract so furnished and the bond, letter of credit or
other security so provided, such assignment to be duly executed and
acknowledged by Tenant, and acknowledged by the contractor, sureties and
other parties, and by its terms to be effective only upon any termination of
this Lease or upon Land lord's re-entry upon the Premises following an Event
of Default, prior to the complete performance of such contract, such
assignment also to include the benefit of all payments made on account of
said contract including payments made prior to the effective date of such
assignment.
SECTION 8.5. If the estimated cost of any Restoration which Tenant
is required to make pursuant to SECTION 8.1 exceeds the net insurance
proceeds received by Landlord or the Secured Lender disbursing the
Restoration Funds, then, prior to the commencement of such Restoration, or
thereafter if it is determined that the cost to complete the Restoration
exceeds the unapplied portion of such insurance proceeds, Tenant shall
deposit with such Secured Lender a bond, cash, irrevocable letter of credit
or other security reasonably satisfactory to such Secured Lender and Landlord
in the
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amount of such excess, to be held and applied in accordance with the
provisions of SECTION 8.2, as security for the timely and proper completion
of the work free of liens.
SECTION 8.6. Except as otherwise expressly and specifically provided
herein, this Lease shall not terminate or be forfeited or be affected in any
manner, and there shall be no reduction or abatement of the Rental payable
hereunder by Tenant, by reason of damage to or total, substantial or partial
destruction of the Buildings or any part thereof or by reason of the
untenantability of the same or any part thereof, for or due to any reason or
cause whatsoever, or because of any taking of all or part of the Premises by
the power of eminent domain, or any other event or occurrence, and Tenant,
notwithstanding any law or statute, present or future, irrevocably releases
and waives any and all rights to terminate this Lease or to quit or surrender
the Premises or any part thereof; and Tenant expressly agrees that its
obligations hereunder (including, without limitation, the payment of Rental
payable by Tenant hereunder) shall continue under all circumstances without
abatement, suspension, diminution or reduction of any kind, as though the
Buildings had not been damaged or destroyed and no part of the Premises had
been taken.
SECTION 8.7. For purposes of ARTICLES 8 and 9, if at the time of
Restoration there is no Secured Lender, Tenant and Landlord agree that
Landlord's original construction lender shall act as Secured Lender for the
sole purpose of holding and disbursing the Restoration Funds. If Landlord's
original construction lender is unwilling, or at any time refuses, to act as
Secured Lender for those purposes, Tenant and Landlord shall select an
institutional lender or a title insurance or trust company with offices in
Jacksonville, Florida, mutually agreeable to both parties to act as said
Secured Lender for such purposes.
SECTION 8.8. In no event (other than as a result of a due and proper
termination of this Lease effected in accordance with the express provisions
hereof) shall there be any abatement, reduction or diminution of Rental in
the event of any casualty regarding, relating to or affecting the Premises,
Tenant agreeing to pay full Rental hereunder at all times after any and all
such casualties have occurred regardless of whether Tenant is then able to
use or occupy the Premises and regardless of whether or not any Restoration
is being carried out.
ARTICLE 9
CONDEMNATION
SECTION 9.1.
(a) If at any time during the Term or any Renewal Terms,
the whole or substantially all of the Premises, Buildings, and
Parking/Driveway Facilities shall be taken or sold under threat or notice
thereof for any public or quasi-public purpose by any lawful power or
authority by the exercise of the right of condemnation or eminent domain or
by agreement among Landlord, Tenant and those authorized to exercise such
right, this Lease and the Term or any Renewal Terms shall, on written notice
of such termination given by Landlord or Tenant to the other not later than
five Business Days after the effective date of such taking or sale, terminate
effective as of the date
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of such taking or sale and the Rental payable by Tenant hereunder shall be
paid to and apportioned as of the date of such taking or sale.
(b) If the whole or substantially all of the Premises,
Buildings, and Park ing/Driveway Facilities shall be taken as provided in
this SECTION 9.1, the proceeds of any condemnation awards shall be paid and
distributed as follows: (i) there shall first be paid to Landlord an amount
equal to the total of all amounts due on or outstanding under all Secured
Loans (but the amount so paid to Landlord under this clause (i) on account of
the aggregate principal amount outstanding under the Secured Loans shall be
subject to the same limitation as applies in calculating the amount of the
Shortfall [defined hereinbelow]); (ii) there shall next be paid to Tenant a
sum equal to the then-unamortized cost (determined on the basis of Tenant's
accounting records, which Tenant shall keep in a manner consistent with
generally accepted accounting principles) of any Capital Improvements taken
in such taking and which were made to the Premises by Tenant and paid for by
Tenant with its own funds (and not with insurance or condemnation proceeds),
less the cost of any work with respect to such Capital Improvements which was
performed by Landlord for Tenant without any charge to Tenant or were
otherwise paid for by Landlord, whether before or after the execution and
delivery of this Lease; and (iii) the balance of the award, if any, shall be
paid to Landlord.
(c) Each of the parties agrees to execute and deliver any
and all documents that may be reasonably required in order to facilitate
collection by them of such awards in accordance with the provisions of this
ARTICLE 9.
(d) If the whole or substantially all of the Premises shall
be taken, and the total of the entire principal amount outstanding and all
interest and other amounts (including, without limitation, all prepayment
premiums, penalties and charges) of any and every kind which have accrued or
will accrue or be payable under all Secured Loans as of the time the same are
to be paid and satisfied in full as contemplated herein as a result of the
condemnation exceeds the amount of the award paid to Landlord pursuant to
clause (i) of SECTION 9.1(b) (the amount of such excess is referred to herein
as the "SHORTFALL"), then Tenant on behalf of Landlord shall pay to each
Secured Lender such Secured Lender's share of the Shortfall so that all of
the Secured Loans (and all amounts payable in respect thereof) shall then be
paid and satisfied in full. Solely for purposes of determining the amount of
any Shortfall hereunder, the total principal amount (not including interest,
prepayment penalties or premiums, or other charges or amounts) of all Secured
Loans taken into consideration shall not exceed the sum of (i) $15,000,000.00
reduced in proportion to, and in accordance with the same time schedule as is
applicable to, the regularly-scheduled principal amortization (if any)
applicable to the first long-term Secured Loan obtained by Landlord to
refinance the construction loan for the Initial Building (Landlord presently
anticipates that it is likely to obtain such first long-term loan from
Northwestern Mutual Life Insurance Company and that the principal balance of
such loan will amortize in accordance with a schedule substantially similar
to that set out in EXHIBIT M attached hereto), plus (ii) the then-outstanding
aggregate principal balance of Secured Loans (as they may theretofore have
been amortized in accordance with their respective terms) which financed
costs paid or incurred for or in connection with any Additions, Expansion
Options or Restorations.
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Landlord shall have no obligation to disclose to Tenant the principal
amortization schedule, or any other fact or matter relating to the amount of
the indebtedness thereunder, under or concerning any Secured Loan until such
time, if any, as Landlord makes a demand upon Tenant for payment of a
Shortfall hereunder.
SECTION 9.2. For purposes of this ARTICLE 9, the "date of taking"
shall be deemed to be the earlier of (i) the date on which actual possession
of the whole or substantially all of the Premises, or a part thereof, as the
case may be, is acquired by any lawful power or authority pursuant to the
provisions of the applicable federal or Florida state law, or (ii) the date
on which title to the Premises or the aforesaid portion thereof shall have
vested in any lawful power or authority pursuant to the provisions of the
applicable federal or Florida state law.
SECTION 9.3.
(a) If part but less than substantially all of the Premises
or Buildings shall be taken as provided in this ARTICLE 9, and there has been
no taking or impairment of parking therefor or access thereto that would
materially adversely affect Tenant's use of the remaining facilities, then
this Lease and the Term or any Renewal Terms shall continue unaffected,
without abatement of the Rental or diminution of any of Tenant's obligations
hereunder except as otherwise expressly provided in SECTIONS 9.3(b) and
9.3(c).
(b) If part but less than substantially all of the
Premises, Buildings, Park ing/Driveway Facilities or access thereto shall be
taken, and if the governing Secured Loan documents of the Secured Lenders
whose Secured Loans are secured by the portions of the Premises affected by
such taking require that there be paid to such Secured Lenders, on account of
their respective Secured Loans, any amounts (collectively, the "SECURED LOAN
REQUIRED PAYDOWN AMOUNT") because of such taking, then there shall be paid to
such Secured Lenders from the condemnation award an aggregate amount equal to
such Secured Loan Required Paydown Amount provided that it does not exceed
the Proportional Loan Reduction Amount (defined hereinafter); and if the
total net amount (after paying reasonable costs of collection) of all monies
or proceeds received by Landlord or Secured Lender from condemnation award
proceeds (payable to either, both or jointly) is insufficient therefor,
Tenant shall pay such amount (subject to the limitations concerning the
maximum amount of the principal indebtedness component of the Secured Loans
as is set out at the end of SECTION 9.1(d)) as a Shortfall hereunder, but if
the total of all such net proceeds received from condemnation awards exceeds
the Proportional Loan Reduction Amount (if any), such excess shall be
deposited into a segregated interest-bearing escrow account with a Secured
Lender (or alternative institution as provided herein with respect to
insurance proceeds) and made available for Restoration. Under the
circumstances described in the preceding sentence, Tenant agrees, at its sole
cost and expense, for the benefit of Landlord, whether or not the award or
awards, if any, shall be sufficient for the purpose, to proceed with
reasonable diligence (subject to Unavoidable Delays) to Restore or cause to
be Restored any and all remaining parts of the Buildings not so taken so that
the latter shall be a complete, rentable, self-contained architectural unit
in good condition and repair. Subject to the provisions and limitations in
this ARTICLE 9, Landlord and any Secured Lender shall
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make available to Restoring Party as much of that portion of the actual award
(less all reasonable expenses of collection incurred by Landlord or Secured
Party, and less the Secured Loan Required Paydown Amount [but not more than
the Proportional Loan Reduction Amount], if any, paid to Secured Lenders; the
net amount of such proceeds, after such reductions, is referred to herein as
the "RESTORATION APPLICATION AMOUNT") received by Landlord or Secured Lender,
if any, as may be necessary to pay the cost of Restoration of the part of the
Buildings remaining. If, through no fault of Tenant, either (i) the Restoration
Application Amount is not made available for Restoration and is not maintained
in an escrow account maintained by a Secured Lender or appropriate alternative
escrowee (Landlord shall have the right, but no obligation, to make up any
deficiency in the Restoration Application Amount from its own funds), or (ii)
if the Secured Loan Required Paydown Amount is greater than the Proportional
Loan Reduction Amount and Landlord does not make up any deficiency in the
Restoration Application Amount resulting therefrom, then Tenant, at Tenant's
option, may terminate this Lease and thereby avoid any obligation with respect
to such Restoration by giving Landlord and all Secured Lenders notice of its
election to terminate within 15 days of Tenant's receiving notice that less
than the Restoration Application Amount will be so deposited and made available
for Restoration (but notwithstanding such termination by Tenant, Tenant will
still be obligated promptly to pay to the Secured Lenders the entire
Shortfall amount [if any] -- subject to the limitations concerning the
maximum amount of the principal indebtedness component of the Secured Loans
as is set out at the end of Section 9.1(d) -- by which the Secured Loan
Paydown Amount [but not to exceed, for this purpose, the Proportional Loan
Reduction Amount] exceeds the total net proceeds [after the deductions
described hereinabove) of the condemnation award received by Landlord or
Secured Lenders). Tenant's right to terminate this Lease as provided in the
preceding sentence shall irrevocably and unconditionally lapse, expire and be
of no further force or effect automatically if Tenant fails to give Landlord
such a notice of termination within such 15-day period. Such Restoration, the
estimated cost thereof, the payments to Restoring Party on account of the
cost thereof, Landlord's and each Secured Lender's rights to perform the same
and to perform Tenant's obligations with respect to condemnation proceeds
held by each of such Persons, shall be done, determined, made and governed in
accordance with and subject to the provisions of ARTICLES 8, 9 and 13. Any
balance of the award held after completion of the Restoration shall be paid
to Landlord, and any cash (and the proceeds of any security) deposited by
Tenant with Secured Lender pursuant to SECTION 9.4 remaining after completion
of the Restoration shall be paid to Tenant. Each of the parties agrees to
execute and deliver any and all documents that may be reasonably required in
order to facilitate collection of the awards. If the portion of the award
made available by Landlord or Secured Lender is insufficient for the purpose
of paying for the Restoration, Tenant shall nevertheless be required to make
or cause to be made the Restoration and to pay or cause to be paid any
additional sums required for the Restoration. For purposes hereof,
"PROPORTIONAL LOAN REDUCTION AMOUNT" means, at any time, the amount
(expressed in dollars) equal to the product of multiplying the aggregate
outstanding principal balances of all Secured Loans affected by the
condemnation or other taking by the fraction of which the numerator is the
total number of Rentable Square Feet taken or otherwise lost as a result of
such condemnation or other taking and the denominator is the total number of
Rentable Square Feet in the Buildings encumbered by such Secured Loans
immediately before the effective ness of such condemnation or taking.
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(c) If a taking of the nature described in SECTION 9.3(A)
occurs and after the Restoration of any Building the number of Rentable
Square Feet of such Building is less than the number prior to such taking and
Restoration, then, from the date of such taking the annual Fixed Rent payable
for and with respect to that Building shall be the amount determined by
multiplying (i) the annual Fixed Rent per Rentable Square Foot by (ii) the
number of Rentable Square Feet of the Restoration Building in question
remaining after the taking (as shown on the "as-built" drawings of the
Restored Building) and as recertified by the Architect.
SECTION 9.4. If the estimated cost of any Restoration required by
the terms of this ARTICLE 9 exceeds the condemnation award (after deducting
all reasonable expenses of collection) received by Landlord and Secured
Lenders, then, prior to the commencement of such Restoration or thereafter if
it is determined that the cost to complete the Restoration exceeds the
unapplied portion of such award, Tenant shall deposit with a Secured Lender
(or suitable alternative escrowee as provided hereinabove) a bond, cash,
irrevocable letter of credit or other security reasonably satisfac tory to
Landlord and Secured Lenders in the amount of such excess, to be held and
applied by Secured Lender in accordance with the provisions of SECTION 9.3,
as security for the completion of the work free of public improvement,
vendors', mechanics', laborers' or materialmen's statutory or other similar
liens.
SECTION 9.5. If the temporary use of the whole or any part of the
Premises shall be taken at any time during the Term or any Renewal Term for
any public or quasi-public purpose by any lawful power or authority by the
exercise of the right of condemnation or eminent domain or by agreement,
Tenant shall give prompt notice thereof to Landlord. Except as expressly and
specifically provided in this ARTICLE 9, the Term and any Renewal Terms shall
not be reduced or affected in any way and Tenant shall continue to pay in
full the Rental payable by Tenant hereunder without reduction or abatement,
and Tenant shall be entitled to receive for itself any award or payments for
such use; provided, however, that if the taking is for a period beginning
during, but extending beyond the end of, the Term or any Renewal Term, such
award or payment shall be appor tioned between Landlord and Tenant as of the
last day of the Term or any Renewal Term.
SECTION 9.6. In case of any governmental action not resulting in the
taking or condemnation of any portion of the Premises but creating a right to
compensation therefor, such as the changing of the grade of any street upon
which the Premises abut, then, except as otherwise provided in this ARTICLE
9, this Lease shall continue in full force and effect without reduction or
abatement of Rental and, subject to the rights of the Secured Lenders, and
any award shall be determined by applicable law.
SECTION 9.7. Notwithstanding any contrary provision in this Article,
with respect to any condemnation or similar taking that occurs after the end
of the twentieth Lease Year, Tenant shall not be obligated to pay any
Shortfall except a Shortfall that relates only to Secured Loans the proceeds
of which financed or refinanced the costs of constructing one or more
Additions or other improvements other than the Initial Building as in place
on the Commencement Date. The preceding
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sentence shall not be construed as limiting or restricting in any way
Tenant's obligations for or concerning Restorations.
SECTION 9.8. Anything contained herein to the contrary
notwithstanding, Landlord shall not settle or compromise any taking or other
governmental action creating in Tenant either a right to compensation or an
obligation to pay all or part of the Secured Loans as provided in this
ARTICLE 9 without the prior consent of Tenant, which consent shall not be
unreasonably withheld or delayed.
SECTION 9.9. Notwithstanding anything herein to the contrary, in
connection with any taking or threat thereof, Tenant shall be entitled, at
its sole expense, to make a separate claim, and to prove and receive an
award, for (a) the value of Tenant's Property to the extent the same is
taken, (b) any Capital Improvement owned by Tenant pursuant to ARTICLE 45,
and (c) any business damages, moving allowances and other expenses or claims
permitted by law, if any; and Landlord shall not be entitled to any portion
of any award made solely for such items.
ARTICLE 10
ASSIGNMENT, SUBLETTING AND MORTGAGES
SECTION 10.1. Subject to the provisions of this Lease that apply
thereto, Tenant shall have the absolute right, at any time when no Event of
Default shall have occurred and remain uncured, upon prior written notice to
Landlord, to sublet, assign or otherwise transfer all or any part of its
interest in the Premises or the Lease, without Landlord's approval, written
or otherwise, so long as Tenant's assignee's or sublessee's use of the
Premises or part thereof is in all respects subject to, and complies with and
conforms to, the provisions of this Lease and the CC&R's and all applicable
laws, rules, statutes, codes, ordinances and regulations.
SECTION 10.2. In the event Tenant duly assigns this Lease, in
conformity with all of the applicable provisions of this Lease, to an
assignee who has assumed all of Tenant's obligations under the Lease pursuant
to a written assumption agreement satisfactory in all respects to Landlord
and all Secured Lenders, then, if Tenant's assignee (or a guarantor who
executes and delivers to Landlord a written agreement guaranteeing the
payment and performance of all obligations of such assignee under or
concerning this Lease, which written guaranty agreement is substantially
identical to the Guaranty executed by Guarantor and delivered to Tenant
substantially simultaneously with the execution of this Lease or is otherwise
satisfactory in form and substance to Landlord and all Secured Lenders,
respectively, in their sole, absolute and arbitrary discretion) then has a
Credit Rating equal to or better than A1 from Moody's and AA minus from
Standard & Poor's, and if Tenant pays Landlord a sum equal to 1% of the
principal balance of all then-outstanding Secured Loans (to the extent that
such amount is charged by, or paid or payable to, Secured Lenders holding
such Secured Loans, for, on account of, or as a consequence of such
assignment or such release), Tenant and Guarantor shall be freed and released
from all of their respective agreements, covenants, and obligations under
this Lease and the Guaranty,
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respectively. Otherwise, Tenant and Guarantor, respectively, shall remain
primarily liable hereunder and with respect to this Lease and the Guaranty,
respectively. Tenant and Guarantor, respectively, shall in all events remain
primarily liable under this Lease and the Guaranty after, and
notwithstanding, any Subleases (defined hereinafter).
SECTION 10.3. If Tenant's entire interest under this Lease is duly
assigned and Landlord is given notice thereof, Landlord shall accept Rental
from the assignee and, if an Event of Default has occurred and is continuing,
may (in its discretion) collect and enforce Rental directly from the
assignee. If the Premises or any part thereof are sublet, used or occupied by
any Person other than Tenant, Landlord may, in its discretion, if an Event of
Default has occurred and is continuing, collect and enforce Rental directly
from the subtenant or occupant. References in this Lease to use or occupancy
by others (that is, any Person other than the Tenant) shall not be construed
as limited to subtenants and those claiming through subtenants, but rather as
including also licensees, concession aires, operators and others claiming
under or through Tenant immediately or remotely a legal right of possession
or occupancy of the Premises or any portion thereof (all such persons being
referred to individually in this Lease as a "SUBTENANT" and collectively as
"SUBTENANTS").
SECTION 10.4. Notwithstanding anything to the contrary contained in
this Article, if Tenant shall at any time or times during the Term or any
Renewal Term of this Lease desire to assign this Lease or sublet all or part
of the Premises, Tenant shall give thirty days prior written notice thereof
to Landlord (or 90 days prior written notice if Tenant wishes for the
Guarantor to be released from the Guaranty under SECTION 10.2), which notice
shall be accompanied by a statement setting forth in reasonable detail the
identity and business address of the proposed assignee or Subtenant, its
proposed use of the Premises, and (in the case of a sublease) a detailed
description of the portion of the Premises to be subleased. No assignment or
sublease shall be valid or effective unless such notice has been duly given.
SECTION 10.5. Notwithstanding anything to the contrary contained in
this ARTICLE 10, it shall be a condition precedent to any assignment or
subletting that each assignee shall expressly assume and agree to be subject
to and bound by and personally obligated and liable for, and each sublessee
shall agree to be subject to, all of the covenants, agreements, terms,
provisions and conditions contained in this Lease, except such (if any) as by
their nature are clearly and inherently irrelevant or inapplicable, in each
such case pursuant to a written instrument satisfactory to Landlord (acting
reasonably) which is signed by such assignee or sublessee and delivered to
Landlord. Subject to SECTION 10.2: Tenant shall and will remain fully liable
for the payment of all Rental due and thereafter to become due hereunder and
for the performance of all of the covenants, agreements, terms, provisions
and conditions contained in this Lease on the part of Tenant to be performed
and all acts and omissions of any assignee or Subtenant or anyone claiming
under or through any assignee or Subtenant which shall be in violation of any
of the provisions of this Lease, and any such violation shall be deemed to be
a violation by Tenant; and, Guarantor will continue to remain fully liable
and obligated under the Guaranty.
SECTION 10.6. With respect to each and every Sublease authorized
under the provisions of this Lease, it is further agreed as follows:
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(a) No subletting shall be for a term (including renewal or
extension options) ending later than one day prior to the expiration of the
Term or any relevant Renewal Term (if exercised) of this Lease.
(b) No Subtenant shall take possession of the Premises or
any part thereof until an executed counterpart of such Sublease, conforming
with the applicable provisions and requirements of this Lease, has been
delivered to Landlord.
(c) Each Sublease shall expressly provide that (1) it is
subject and subordinate to this Lease and to the matters to which Tenant's
rights or interests under this Lease is or shall be subordinate, and that in
the event of Landlord's termination of or re-entry or dispossess under this
Lease, Landlord may, at its option and without the consent of the Subtenant,
take over all of the right, title and interest of Tenant, as sublessor, under
such Sublease, and (2) such Subtenant shall, if requested to do so by
Landlord (in Landlord's absolute discretion), attorn to Landlord pursuant to
the then-executory provisions of such Sublease or, at Landlord's option,
enter into a direct lease on identical terms with Landlord for the balance of
the unexpired term of the Sublease, except that Landlord shall not under any
circumstance whatsoever be (i) liable for any previous act or omission of
Tenant under or concerning such Sublease, (ii) subject to any offset, not
expressly provided for in such Sublease, which theretofore accrued to such
Subtenant against Tenant, (iii) liable for any security deposited by such
Subtenant which has not been transferred to Landlord, (iv) bound by any
previous modification of such Sublease not approved by Landlord, (v) bound by
any prepayment of more than one month's rent, (vi) bound by any covenant of
Tenant to undertake or complete any construction or improvement of the
Premises or any portion thereof demised by such Sublease, or (vii) bound by
any obligation of Tenant or any other Person to make any payment to, on
behalf of, or for the account or benefit of, the Subtenant.
(d) Each Sublease shall expressly provide, in addition to
such other matters as are required pursuant to this ARTICLE 10, that (1) the
Subtenant will not pay any rent or other sums under the Sublease for more
than one month in advance of the due date for any corresponding Rental
obligation under this Lease, and (2) on the termination of this Lease
pursuant to ARTICLE 25, upon Landlord's request the Subtenant will promptly
deliver to Landlord "as-built" drawings of any and all construction,
alteration, renovation or Restoration work performed or caused to be
performed in the space demised under such Subtenant's Sublease, and if any
construction, alteration, renovation or Restoration work with respect to such
space is then proposed or in progress, such Subtenant's drawings and
specifications, if any, for such work.
SECTION 10.7. Tenant shall make reasonable efforts to cause all
Subtenants to comply with their obligations under their respective subleases
or occupancy, operating, license and concession agreements, as the case may
be (individually, a "SUBLEASE" and collectively, "SUBLEASES"), and Tenant
shall enforce with reasonable diligence all of its rights and remedies as the
sublessor or licensor thereunder in accordance with the terms of each of the
Subleases.
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SECTION 10.8. The fact that a violation or breach of any of the
terms, provisions or conditions of this Lease results from or is caused by an
act or omission by any of one or more Subtenants or (unless Tenant has been
released from its obligations hereunder in connection with an assignment to
such assignee as provided hereinabove) by an assignee shall not relieve
Tenant of Tenant's obligations to cure, and to be responsible for all of the
consequences, of such violation or breach.
SECTION 10.9. To secure the prompt and full payment by Tenant of the
Rental and the faithful performance by Tenant of all of the other terms and
conditions herein contained on its part to be kept and performed, Tenant
hereby assigns, transfers and sets over unto Landlord, subject to the
conditions hereinafter set forth in this SECTION 10.9, all of Tenant's right,
title and interest in and to all assignments of its interest under this Lease
and all Subleases, and hereby confers upon Landlord and its agents and
representatives a right of entry in, and sufficient possession of, the
Premises to permit and insure the collection by Landlord of the rentals and
other sums payable under the Subleases and such lease assignments, and
further agrees that the exercise of the right of entry and qualified
possession by Landlord shall not constitute an eviction of Tenant from the
Premises or any portion thereof; provided, however, that Landlord may not
enforce, or exercise any remedies under, such assignment to Landlord until
(a) an Event of Default shall have occurred and all applicable cure periods
shall have expired, or (b) this Lease, the Term or any Renewal Terms shall be
canceled or terminated pursuant to the terms, covenants and conditions
hereof, or (c) there occurs repossession under a dispossess warrant or other
judgment, order or decree of a court of competent jurisdiction and then only
as to such of the Subleases (if any) that Landlord may elect to take over and
assume.
SECTION 10.10. Tenant shall deliver to Landlord on or before each
December 31st during the Term and any Renewal Terms, a schedule of any lease
assignment and all Subleases, if any, which schedule shall include the
respective names of any assignee and all Subtenants and, with respect to each
Sublease, a description of the space sublet, the expiration date, any
extension or renewal options, rentals and other payment obligations, and any
other information relating to such Subleases which Landlord reasonably
requests. From time to time during the Term and any Renewal Terms, Landlord
may change the date on which Tenant is required to deliver such schedule by
giving Tenant thirty (30) days' prior notice thereof; provided, however, that
Tenant shall not be required to deliver such schedule more than twice in any
period of twelve consecutive months.
SECTION 10.11. Notwithstanding anything to the contrary in this
Lease, under no circumstance whatsoever may Tenant directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, assign,
transfer, convey, grant, sell, encumber, pledge or dispose of any of the
Expansion Options or the Renewal Options, or any other right or option of
Tenant which is granted or expressed in ARTICLE 45 or ARTICLE 46, nor may
Tenant contract or agree to do any of the foregoing, except (i) to an
assignee of all of Tenant's right, title, estate and interest in and to this
Lease and the Premises who acquires such interest in compliance with the
provisions of SECTION 10.1 hereof, (ii) in all cases with the express prior
written consent of Guarantor, which consent may be withheld arbitrarily and
in the sole and absolute discretion of Guarantor, and (iii) in all cases
(unless Guarantor has theretofore been released from its obligations under
the Lease or, simultaneously with such assignment, Guarantor is being
released and no substituted Guarantor will replace it as guarantor of
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Tenant's or the assignee's obligations under the Lease) only upon delivery to
Landlord of a written instrument signed by and binding upon Guarantor, which
instrument is satisfactory and acceptable to Landlord in its reasonable
judgment, in which Guarantor consents to the assignment and acknowledges and
agrees that (A) any exercise by such assignee of any Option (specifically
including, without limitation, any Expansion Option and any Renewal Option)
and any Lease amendment that results from or relates to any such exercise
will be deemed to have been approved by Guarantor for all purposes of the
Guaranty and (B) all obligations of any and every kind whatsoever (including,
without limitation, all obligations for Fixed Rent and for other Rental)
which arise, accrue, relate to or result from the exercise by such assignee
of any or all of the Options (whether accruing or arising in, or relating to,
any Renewal Term or the Term as it relates to any Addition, or otherwise)
shall be deemed for all purposes of the Guaranty to constitute Guarantied
Obligations arising within the Guarantied Portion of the Term (those terms
being defined for purposes hereof as they are defined in the Guaranty) for
which Guarantor will be fully liable under the Guaranty; and any document,
instrument, agreement, grant, contract or other act or thing purporting to or
agreeing to accomplish or effect any of the foregoing to or in favor of a
Person other than an assignee satisfying the requirements of the preceding
clauses (i), (ii) and (iii) shall be absolutely and completely invalid, void
ab initio, and of no force or effect whatsoever.
SECTION 10.12.
(a) Notwithstanding anything which may be to the contrary
in SECTION 10.7, Landlord covenants and agrees, for the benefit of any
Subtenant who has duly subleased any space in the Premises in conformity with
all applicable conditions, requirements and provisions of this Lease, that on
and subject to the conditions set out in the proviso to this sentence,
Landlord shall recognize the Subtenant as the direct tenant of Landlord upon
the termination of this Lease pursuant to any of the provisions of ARTICLE 25
and the termination of any other Sublease superior to the Sublease of such
Subtenant, but only if (1) Landlord (acting reasonably) is satisfied that the
Guaranty will remain in effect thereafter and Guarantor remains ready,
willing and able to perform all of its obligations thereunder, (2) such
Subtenant's Sublease (A) obligates the Subtenant to pay, as rent thereunder,
total amounts each month which are not less (per Rentable Square Foot) in
total than the Rental payable under this Lease by Tenant for such space, (B)
obligates the Subtenant to pay and perform all other obligations that Tenant
is obligated to pay and perform under this Lease, and (C) is substantially
identical to this Lease, and (3) each Secured Lender shall have agreed in
writing that it will not join the Subtenant as a party defendant in any
foreclosure action or proceeding which may be instituted or taken by the
Secured Lender or evict the Subtenant from the portion of the Premises
demised to it except by reason of the Subtenant's default under its Sublease
or affect any of the Subtenant's rights under its Sublease by reason of any
default under such Secured Lender's Secured Loan; provided, however, that at
the time of the termination of this Lease (i) no default exists under the
Subtenant's Sublease which would then permit the landlord thereunder to
terminate the Sublease or to exercise any dispossess or similar remedy
provided for therein, and (ii) the Subtenant executes and delivers to
Landlord an instrument, satisfactory in form and substance to Landlord,
confirming the agreement of the Subtenant to attorn to Landlord and to
recognize Landlord as the Subtenant's landlord under the Sublease, which
instrument shall (A) set out such Subtenant's agreement to
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deliver to Landlord and its designees such estoppel or confirmation letters
concerning such Sublease as Landlord may request from time to time and (B)
provide that neither Landlord nor anyone claiming by, through or under
Landlord, shall be:
(1) liable for any act or omission of any prior
sublandlord (including, without limitation, the then-defaulting
sublandlord),
(2) subject to any offsets or defenses which the
Subtenant may have against any prior sublandlord (including, without
limitation, the then-defaulting sublandlord),
(3) bound by any payment of rent which the Subtenant
might have made for more than one month in advance of the due date for
any corresponding Rental obligation under this Lease to any prior
sublandlord (including, without limitation, the then-defaulting
sublandlord),
(4) liable for any security deposited by such
Subtenant which has not been transferred to Landlord,
(5) bound by any covenant to undertake or complete
any construction or improvement of the Premises or any portion thereof
demised by said Sublease,
(6) bound by any obligation to make any payment to
the Subtenant, it being expressly understood (without limitation of the
foregoing) that Landlord shall not be bound by any obligation to make
any payment to, on behalf of or for the account or benefit of a
Subtenant with respect to construction performed by or on behalf of
such Subtenant at the subleased premises, or
(7) bound by any modification of the Sublease which
reduces the fixed rent, additional rent, supplemental rent or other
charges or amounts payable by the Subtenant under the Sublease (except
to the extent equitably reflecting any reduction in the space covered
by the Sublease), or shortens or extends the term thereof, or increases
the obligations of the landlord thereunder, or otherwise materially
adversely affects the rights or interests of the landlord thereunder,
made without the express written consent of Landlord.
(b) If a Subtenant entitled to such recognition, or Tenant
on behalf of such Subtenant, shall so request in writing, Landlord shall
execute and deliver an agreement, in form and substance reasonably
satisfactory to Landlord, Tenant and such Subtenant, confirming that, subject
to the provisions of clauses (i) and (ii) of SECTION 10.12(a) and the other
applicable provisions and conditions of that Section, such Subtenant is
entitled to such recognition.
SECTION 10.13. Prior to the Commencement Date, except for any
Secured Loan, Landlord shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, assign, encumber, pledge, grant a security
interest in, or otherwise transfer all or any portion of Landlord's interest
in
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this Lease or the Premises without obtaining the prior written consent of
Tenant, which may be given or withheld in Tenant's sole discretion. For
purposes of this SECTION 10.13, if Landlord is a corporation or partnership,
and if at the time prior to the Commencement Date the Person or Persons which
owns or own a majority voting control of such corporation's shares or the
general partner's interest in such partnership, as the case may be, ceases or
cease to own, directly or indirectly, a majority of those voting control
shares or general partner's interest, as the case may be, whether by
operation of law or otherwise, any such event shall be deemed to be an
assignment of this Lease as to which Tenant's prior consent shall be
required. After the Commencement Date, Landlord may assign, encumber,
mortgage, pledge, grant a security interest in, or transfer all or any part
of its interest in the Lease and the Premises without restriction or
limitation of any kind, provided that the Person or Persons who then acquire
or own Landlord's interest in the Lease or Premises, including without
limitation the purchaser or transferee in any sale or transfer, must have the
capability to and expressly agree in writing to assume and carry out any and
all agreements, covenants and obligations of Landlord hereunder, in which
event the original Landlord shall be freed and relie