Exhibit 10.4
COMMERCIAL
LEASE
(Highway 7 Corporate
Center)
In consideration
of the mutual promises and covenants contained in this Lease,
HIGHWAY 7 BUSINESS CENTER LLC, a Minnesota limited liability
company (“Landlord”), and CIPRICO INC., a Delaware
corporation (“Tenant”) agree as follows:
1.
PREMISES. Landlord
agrees to lease to Tenant and Tenant agrees to lease from Landlord,
approximately 20,605 square feet of which approximately 12,367
square feet is office space, 3,198 square feet is lab space, 4,971
square feet is operations space, and 69 square feet is
Tenant’s pro rata share of mechanical room space
(collectively the “Premises”), together with rights in
common with other tenants to the Common Areas (as hereinafter
defined), within the building (“Building”) which is
situated on that certain land (“Land”) in the City of
St. Louis Park, Minnesota, commonly known as Highway 7 Corporate
Center, with an address of 7003 Lake Street West, St. Louis Park,
Minnesota, and more particularly described on Exhibit A
attached hereto (the Building and the Land are collectively the
“Property”). The Premises are depicted on
Exhibit B, attached hereto.
The “Common
Areas” are defined as all areas and facilities outside the
Premises and within the exterior boundary line of the Land which
are provided and designated by Landlord from time to time for the
general non-exclusive use of Landlord, Tenant, and other tenants of
the Building and their respective employees, suppliers, shippers,
customers and invitees. The Common Areas may include, but are
not limited to, the parking areas, loading and unloading areas,
trash areas, roadways, sidewalks, walkways, parkways and landscaped
areas. Notwithstanding the foregoing, Landlord agrees
(i) to keep the landscaped areas in front of the Premises
(including the east side hill area) substantially the same as it
exists as of the date hereof with the effect that the substation is
screened from view; (ii) not to increase the size of the
Common Areas in a manner that will increase Tenant’s Share of
Operating Expenses, as hereinafter defined; and (iii) not to
make changes to the Common Area that deny Tenant reasonable access
to the Premises.
2.
CONDITION OF
PREMISES. Except as otherwise expressly set forth in
Section 21 hereof, or in Exhibits B and D attached hereto,
Tenant agrees to accept the Premises
“as-is.”
3.
TERM. The term of
this Lease (the “Term”) shall commence on the later of
October 13, 2007, or the date that Landlord’s Work (as
hereinafter defined) is Substantially Complete (the
“Commencement Date”), and continue for a period of
eighty-five and one-half (85½) months thereafter, at which
time the Term of the Lease shall expire without further action on
the part of either party hereto. “Substantially
Complete” shall mean the point at which (i) a temporary
certificate of occupancy has been issued, and
(ii) Landlord’s Work is complete in accordance with
Exhibits B and D and in compliance with all applicable laws to the
degree that any items remaining to be completed or corrected do not
materially interfere with Tenant’s ability to take occupancy
and prepare to conduct its business within the Premises.
Tenant shall have no obligation to accept possession of the
Premises before the Premises are Substantially Complete. Upon
notice from Landlord that the Premises are Substantially Complete,
the parties shall inspect the Premises and prepare a punchlist of
items necessary to finally complete the portions of the Premises
for which Landlord is responsible. Landlord agrees to cause
to be completed or corrected all such punchlist items promptly
after the same have been identified. Landlord covenants to
obtain a final certificate of occupancy for the Premises; provided
that Landlord shall not be deemed to be in default of this covenant
to the extent Landlord’s inability to obtain a final
certificate of occupancy is the result of improvements,
furnishings, or other activities of Tenant within the
Premises. Upon determination of the actual Commencement Date,
Landlord and Tenant will confirm such date in writing. In the
event that the Premises are not delivered to Tenant by
October 13, 2007, Tenant shall receive one day of additional
free Base Rent (as hereinafter defined) for each day that elapses
between October 13 and the actual Commencement Date. In
addition, if the Premises have not been delivered to Tenant by
October 31, 2007, Landlord shall be responsible to pay the
difference between the rent which would have been payable under
this Lease had the Premises been delivered by October 31, 2007
(ignoring for purposes of this provision any free rent to be
granted to Tenant hereunder and assuming the rental amounts payable
starting in month 2, as set out in paragraph 5 hereof) and the
holdover rent payable by Tenant in its current location.
Tenant
represents that its
holdover rate will be 150% under its current lease if Tenant does
not vacate its current space by October 31, 2007. In no
event will the Commencement Date be prior to Landlord’s
completion of Landlord’s Work, as hereinafter
defined.
4.
HOLDING OVER. If
Tenant shall retain possession of the Premises after termination or
expiration of this Lease, then (i) for each day, or part
thereof the Tenant so retains possession of the Premises, Tenant
shall pay Landlord 150% of the amount of the daily rate of Base
Rent payable by Tenant under Section 5 during the calendar
month immediately preceding such termination or expiration together
with any damages sustained by Landlord as a result thereof,
(ii) if such retention of the Premises is with the express
written consent of Landlord, such tenancy shall be from month to
month and in no event from year to year or any period longer than
month to month, and (iii) except as provided in this
Section 4, any such tenancy shall be upon the same terms and
conditions as contained in this Lease.
5.
RENT.
(a)
Base Rent
. The annual Base
Rent set forth below consists of rent for the Premises and assumes
$624,945 in a Tenant Improvement Allowance (as hereinafter
defined). Subject to adjustment pursuant to the terms of
Section 21, Tenant covenants and agrees to pay to Landlord or
its authorized agent, at Landlord’s address, without prior
demand and without deduction or set-off, rent (“Rent”)
for the Premises as follows:
|
Months
|
|
Annual
Base Rent
|
|
Monthly
Base Rent
|
|
|
|
|
(per
square foot)
|
|
|
|
|
Oct. 13-31
|
|
$
|
0.00
|
|
$
|
0.00
|
|
|
1 st
full
month
|
|
$
|
0.00
|
|
$
|
0.00
|
|
|
2-13
|
|
$
|
11.25
|
|
$
|
19,317.19
|
|
|
14-25
|
|
$
|
11.48
|
|
$
|
19,712.12
|
|
|
26-37
|
|
$
|
11.71
|
|
$
|
20,107.05
|
|
|
38-49
|
|
$
|
11.94
|
|
$
|
20,501.98
|
|
|
50-61
|
|
$
|
12.18
|
|
$
|
20,914.08
|
|
|
62-73
|
|
$
|
12.42
|
|
$
|
21,326.18
|
|
|
74-85
|
|
$
|
12.67
|
|
$
|
21,755.45
|
|
Tenant shall also pay
Additional Rent as provided in section 5(b), and any other
additional payments due under this Lease, such Additional Rent to
commence on the Commencement Date. All such payments shall be
made in equal monthly installments, payable in advance on or before
the first day of each calendar month with the first payment due on
or before the Commencement Date. Rent for any partial month
at the beginning or end of the Term of this Lease shall be prorated
based upon the actual number of days of such month included within
the Term of this Lease.
(b)
Additional
Rent .
Tenant shall pay, as “Additional Rent,” the amount of
Tenant’s Share of Operating Expenses for each Lease Year, as
reasonably estimated by Landlord prior to the beginning of such
Lease Year, in equal monthly installments, in advance, on the first
day of each month during each applicable Lease Year.
The parties hereto
agree upon the following Definitions:
i.
The term “Lease
Year” shall mean each twelve (12) month period which ends on
December 31 of any year during which all or any part of the
Term occurs.
ii.
The term “Real
Estate Taxes” shall mean and include all real estate taxes,
and installments of special assessments (with payments extended
over the longest period allowable by the authority levying same),
including interest thereon, relating to the Property, and all
other
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governmental charges,
general and special, ordinary and extraordinary, foreseen as well
as unforeseen, of any kind and nature whatsoever, or other tax,
however described, which is levied or assessed by any governmental
entity, against Landlord or all or any part of the Property as a
result of Landlord’s ownership of or interest in the
Property, and payable during the respective Lease Year.
Tenant also shall pay, as Additional Rent, any
tax or excise on rents, gross receipts tax, or other tax, however
described, which is levied or assessed by any governmental entity,
against Landlord in respect to the Rent, Additional Rent, or other
charges reserved under this Lease or as a result of
Landlord’s receipt of such rents or other charges accruing
under this Lease, except income, franchise, gift, succession,
foreign ownership, foreign control, transfer, sales, inheritance,
estate, payroll or personal property taxes.
iii.
The term “Operating
Expenses” shall mean and include all expenses incurred with
respect to the maintenance and operation of the Property,
including, but not limited to, Real Estate Taxes, public liability,
casualty and other insurance premiums reasonably required by
Landlord’s lender, Common Area maintenance and repair costs,
steam, electricity, water, sewer, gas, and other Common Area
utility charges, fuel, lighting, window washing, janitorial
services, trash and rubbish removal, snow removal, lawn mowing and
maintenance, repair and replacement of exterior windows, repair and
replacement of the non-structural portions of the roof and roof
membrane, wages and benefits payable to employees of Landlord whose
duties are directly connected with the operation, maintenance and
management of the Property (but only to the level of building
manager), and to the extent such employee’s time is directly
charged to working at the Property, amounts paid to contractors or
subcontractors for work or services performed in connection with
the operation and maintenance of the Property, all services,
supplies, repairs, replacements or other expenses for maintaining
and operating the Property, reasonable attorneys’ fees and
costs in connection with the appeal or contest of Real Estate Taxes
or levies (to the extent of any reduction realized), and such other
expenses as may be ordinarily incurred in the operation,
maintenance and management of the Property and not specifically set
forth herein. Landlord agrees that any management fee charged
as part of Operating Expenses shall not exceed amounts customarily
charged for such services. With respect to repairs or
replacements to the Property which would be recognized as capital
improvements under generally accepted accounting principles
(“GAAP”), the term “Operating Expenses”
shall only include a prorata portion of the cost of such repairs or
replacements determined by amortizing at prevailing interest rates
over the useful life of the repair or replacement as determined in
accordance with GAAP. Landlord agrees that it will incur
replacement costs only when it is consistent with sound business
and building ownership practices, or as otherwise required by law
or the requirements of Landlord’s lender.
The
term “Operating Expenses” shall not include repairs,
restoration or other work occasioned by fire, windstorm or other
insured casualty, expenses incurred in leasing or procuring
tenants, leasing commissions, advertising expenses, expenses for
renovating space for Landlord or new tenants, payments made to
affiliates of Landlord including inside or related contractors and
executives (but only to the extent the amount paid exceeds market
rate for the services provided), legal expenses incident to
enforcement by Landlord of the terms of any lease, interest or
principal payments on any mortgage, depreciation allowances or
expenses, costs to cure construction defects, costs to remedy
building code violations or other violations of applicable laws,
codes, ordinances or regulations existing as of the Commencement
Date, costs to remediate Hazardous Substances (as hereinafter
defined) which are not due to the acts or omissions of Tenant,
costs for the maintenance, repair and replacement of those items
identified as “Excluded Items” in paragraph
7(a) hereof, rent under any ground lease or underlying lease,
or any costs incurred by Landlord in connection with the transfer
or disposition of Landlord’s interest in the Property.
Notwithstanding the foregoing, in the event Landlord installs
equipment in or makes improvements or alterations to the Property
which are required under any governmental laws, regulations, or
ordinances which were not required as of the date of this Lease,
Landlord shall include in Operating Expenses reasonable charges for
the same so as to amortize such investment at
3
prevailing interest
rates over the useful life of such equipment, improvement or
alteration, as determined in accordance with GAAP.
iv.
The term
“Tenant’s Share of Operating Expenses” shall mean
twenty-six percent (26%) of the Operating Expenses for the
applicable Lease Year. The above percentage has been agreed
upon by the parties hereto after due consideration of the number of
leasable square feet in the Premises compared to the number of
leasable square feet in the Building.
As
to each Lease Year after the initial Lease Year, Landlord shall
reasonably estimate for each such Lease Year the total amount of
(i) Operating Expenses; (ii) Tenant’s Share of
Operating Expenses; and (iii) the computation of the annual
and monthly Additional Rent payable during such Lease Year as a
result of changes in Tenant’s Share of Operating
Expenses. Landlord shall make the estimate in writing and
deliver or mail it to Tenant at its address for notice purposes
hereunder.
From time to time during any applicable Lease
Year, Landlord may re-estimate the amount of Operating Expenses and
Tenant’s Share thereof, and in such event Landlord shall
notify Tenant, in writing, of such re-estimate in the manner above
set forth and fix monthly installments for the then remaining
balance of such Lease Year in an amount sufficient to pay the
re-estimated amount over the balance of such Lease Year after
giving credit for payments made by Tenant on the previous
estimate.
Upon completion of each Lease Year, Landlord
shall determine the actual amount of Operating Expenses for such
Lease Year and Tenant’s Share thereof and deliver a written
report of the amounts thereof to Tenant within 120 days after the
end of each Lease Year. The report shall be certified by a
financial officer of Landlord. If Tenant has paid less than
its Share of Operating Expenses for any Lease Year, Tenant shall
pay the balance of Tenant’s Share within thirty (30) days
after the receipt of such statement. If Tenant has paid more
than Tenant’s Share of Operating Expenses for any Lease Year,
Landlord shall credit such excess against the most current
installment or installments due Landlord for its estimate of
Tenant’s Share of Operating Expenses for the next following
Lease Year. A pro rata adjustment shall be made for any
fractional Lease Year occurring during the Term of this Lease or
any renewal or extension thereof based upon the number of days of
the term of this Lease during such Lease Year as compared to three
hundred sixty-five (365) days. If an overpayment occurs
during the last Lease Year, Landlord shall refund the amount
overpaid to Tenant.
Tenant shall have the right during any Lease
Year, after reasonable notice and at reasonable times, to inspect
Landlord’s accounting records relating to Operating Expense
charges (for the immediately preceding Lease Year only) at
Landlord’s accounting office. Tenant shall furnish
Landlord with the results of such inspection, and if such
inspection shows that Tenant has paid less than its Share of
Operating Expenses for any Lease Year, Tenant shall pay the balance
of Tenant’s Share within thirty (30) days after the receipt
of such inspection results. If Tenant has paid more than
Tenant’s Share of Operating Expenses for any Lease Year,
Landlord shall credit such excess against the most current
installment or installments due Landlord for its estimate of
Tenant’s Share of Operating Expenses for the next following
Lease Year. If an overpayment occurs during the last Lease
Year, Landlord shall refund the amount overpaid to Tenant.
Upon Tenant’s written request, Landlord will provide Tenant
with copies of documentation substantiating any Operating
Expense.
6.
USE. Subject to any
limitations imposed by applicable laws, rules and regulations,
the Premises may be used and occupied solely for general office,
showroom, light assembly and warehouse purposes. Tenant will
not use the Premises in a manner contrary to law, or in any manner
that may increase the insurance risk, prevent the obtaining of
insurance, or be in violation of any applicable federal, state or
local law, rule or regulation.
4
7.
MAINTENANCE AND
REPAIR.
(a)
Landlord’s
Obligations for Maintenance . Landlord shall keep and maintain the
Common Areas, foundation, exterior walls, and roof (structural and
roof membrane) of the Building in which the Premises are located,
the structural portions of the Premises (exclusive of doors, door
frames, door checks, windows, and exclusive of window frames
located in the exterior building walls), and building systems that
do not exclusively serve Tenant or any other single tenant, in good
condition and repair (including replacements, as necessary) except
that Landlord shall not be called upon to make such repairs
occasioned by the act or negligence of Tenant, its agents,
employees, invitees, licensees or contractors. Except to the
extent the same are Tenant’s obligation under paragraph
7(b)(ii) or (iii) below, or as otherwise provided
elsewhere in this Lease, Landlord shall maintain the Property in
compliance with applicable law and the requirements of applicable
insurance underwriters. Except as otherwise provided in the
last sentence of this paragraph 7(a), the costs incurred by
Landlord in the performance of the obligations set forth in this
paragraph 7(a) shall be included as Operating Expenses,
subject to the provisions of paragraph 5(b). Costs to
maintain, repair and replace the foundation, exterior walls (other
than painting or other cosmetic treatments), structural portions of
the roof, and structural portions of the Premises (collectively,
the “Excluded Items”) shall not be included in
Operating Expenses, but shall be the sole cost of Landlord, except
to the extent that such maintenance, repairs or replacements are
occasioned by the act or negligence of Tenant, its agents,
employees, invitees, licensees or contractors.
(b)
Tenant’s
Obligations for Maintenance .
(i)
Except as provided in
section 7(a), Tenant shall repair (including replacement of parts
and equipment if necessary) the Premises and every part thereof,
including, without limitation, all plumbing and sewage facilities,
fixtures, heating and air conditioning (repair and maintenance
only, including seasonal inspections, filter replacements and
adjustments — replacement addressed below) and electrical
systems, sprinkler system, walls, floors, ceilings, together with
any other Improvements (as hereinafter defined) included within and
exclusively serving the Premises, provided that such maintenance
and/or repairs are not due to manufacturer defects or improper
installation of any of the aforementioned items which occur during
any relevant warranty period. At Landlord’s option,
Landlord may perform the repair and maintenance on the heating and
air conditioning units serving the Premises, and charge the cost
thereof to Tenant so long as such costs are at competitive market
rates. Tenant shall also be responsible to repair other parts
of the Property to the extent such repairs are made necessary by
the act or negligence of Tenant, its agents, employees, invitees,
licensees or contractors. Landlord shall be responsible for
improvements to the Premises of a capital nature (including the
replacement of the heating and air conditioning system, and
those required by changes in law coming into effect after the
Commencement Date which are not specific to Tenant’s use),
provided that the cost of any such capital improvements shall be
amortized at prevailing interest rates over the useful life of such
improvements (as determined in accordance with GAAP) and Tenant
shall pay to Landlord Tenant’s Share of the amortized portion
of such costs attributable to the term of the Lease as part of
Operating Expenses.
(ii)
Tenant shall keep and
maintain the Premises in a clean, sanitary and safe condition in
accordance with the laws of the State of Minnesota and in
accordance with all directions, rules and regulations of the
health officer, fire marshal, building inspector, or other proper
officials of the governmental agencies having jurisdiction, at the
sole cost and expense of Tenant, and Tenant shall comply with all
requirements of law, ordinance and otherwise, affecting
the
5
Premises including, but
not limited to, the Americans With Disabilities Act
(“ADA”); provided, however, that Tenant shall not be
obligated to cure a violation of any law or ordinance which existed
as of the Commencement Date unless (a) such violation was the
result of Tenant’s activities on the Premises, or
(b) such cure is required as the result of Tenant’s
particular use of the Premises and not a general requirement of
like buildings regardless of use. If Tenant refuses or
neglects to commence and to promptly and adequately complete any
repairs which are the obligation of Tenant pursuant to this section
7(b), Landlord may, but shall not be required to, make or complete
such repairs and Tenant shall pay the cost thereof to Landlord
immediately upon demand.
(iii)
Tenant, at its own
expense, shall install and maintain fire extinguishers and other
fire protection devices (in addition to the ESFR sprinkler system
provided by Landlord) as may be required from time to time by any
agency having jurisdiction thereof and the insurance underwriters
insuring the Premises, but only to the extent such requirements are
the result of Tenant’s particular use of the Premises and not
a general requirement of like buildings regardless of
use.
8.
UTILITIES, TAXES, AND
ASSESSMENTS. The Premises shall be separately metered for
electrical and natural gas. Tenant shall be billed directly
by the utility companies for electrical, natural gas and telephone
services. Tenant shall pay either directly or, at
Landlord’s option, as a part of Tenant’s Share of
Operating Expenses, all charges for any other utility or service
used, rendered or supplied upon or in connection with the Premises
including, but not limited to, sewer and water. Tenant shall
provide its own trash and janitorial service.
9.
ADDITIONAL COVENANTS OF
TENANT.
(a)
Signs
. Subject to
applicable municipal ordinances, Tenant shall have the right to
install signage at their own cost above, or adjacent to, the main
entrance to the Premises in accordance with the Sign Criteria which
is attached hereto as Exhibit C. Landlord will provide
front and back door vinyl graphics for the Premises’ suite
number, and will also provide tenant signage on the monument sign
at the Lake Street entrance to the Property, in the manner depicted
on Exhibit E attached hereto. During the last nine
(9) months of the Term, Landlord may place “For
Lease/Sale” signs upon the Premises in a manner that does not
obstruct Tenant’s signage.
(b)
Compliance with
Laws .
Except as otherwise provided in this Lease, Tenant agrees, at
Tenant’s expense, to comply with all laws, orders, ordinances
and regulations and with any direction made pursuant to law of any
public officer, relating to Tenant’s use of the
Premises.
(c)
Surrender
. Tenant agrees upon
the termination of this Lease for any reason, to remove
Tenant’s personal property and trade fixtures (including
Tenant’s modular furniture) and those of any other persons
claiming under Tenant, and to quit and deliver up the Premises to
Landlord peaceably and quietly in as good order and condition as
the same are at the commencement of this Lease or thereafter may be
improved by Landlord and Tenant, reasonable use and wear and damage
due to fire or other casualty excepted. Tenant, at
Tenant’s cost, shall repair any damage resulting from
Tenant’s removal of its personal property and trade fixtures
from the Premises.
(d)
Personal Property
Taxes .
Tenant agrees to pay, before delinquency, any and all taxes levied
or assessed and which become payable during the Term hereof upon
Tenant’s equipment, fixtures, furniture, and other personal
property located on the Premises.
6
10.
ENVIRONMENTAL
RESTRICTIONS. Tenant covenants and agrees that during the
Term of this Lease (i) no Hazardous Substances (as hereinafter
defined) shall be located, stored, used, disposed of, released or
discharged from (including groundwater contamination) the Premises,
provided that the Tenant may store, use and dispose of (in
compliance with this paragraph 10) normal office materials and
limited amounts of manufacturing materials and other amounts of
materials customarily used in accordance with the use permitted by
this Lease; (ii) the Premises and its use and operation shall
at all times and in all respects comply with all federal, state and
local laws, ordinances and regulations relating to the protection
of health and with all Environmental Laws (as hereinafter defined);
and (iii) Tenant will obtain all permits, if any, required
under Environmental Laws relating to Tenant’s use and
occupancy of the Premises.
(a)
For purposes of this
section, the term “Hazardous Substances” shall mean the
following: (i) any “hazardous substance” as now
defined pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42 U.S.C.A.
§ 960 1(14) as amended by the Superfund Amendments and
Reauthorization Act (“SARA”), and including the
judicial interpretation thereof (ii) any “pollutant or
contaminant” as now defined in 42 U.S.C.A. § 960
1(33); (iii) any petroleum, including crude oil or any
fraction thereof; (iv) natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel;
(v) any “hazardous chemical” as now defined
pursuant to 29 C.F.R. part 1910; and (vi) any other substance
subject to regulation as a hazardous or-toxic substance under
existing Environmental Laws.
(b)
For purposes of this
section, the term “Environmental Laws” shall mean and
include all federal, state and local statutes, ordinances,
regulations and rules presently in force or hereafter enacted
relating to environmental quality, contamination and clean-up,
including, without limitation, CERCLA, 42 U.S.C.A. § 9601
et seq., as amended by the SARA, the Resource Conservation and
Recovery Act of 1976, 42 U.S.C.A. § 6901 et seq., as
amended by the Hazardous and Solid Waste Amendments of 1984, and
any applicable state superlien and environmental clean-up statutes
and all rules and regulations presently or hereafter
promulgated under said statutes, as amended.
Tenant shall
indemnify, defend (with counsel reasonably acceptable to Landlord),
protect and hold Landlord and each of Landlord’s officers,
directors, partners, employees, agents, attorneys, successors and
assigns free and harmless from and against any and all claims,
liabilities, damages, costs, penalties, forfeitures, losses or
expenses (including attorneys’ fees) for death or injury to
any person or damage to any property whatsoever (including water
tables and atmosphere) arising or resulting in whole or in part,
directly or indirectly, from the release or discharge of Hazardous
Materials, in, on, under, upon or from the Premises or the
Improvements located thereon or from the transportation or disposal
of Hazardous Materials to or from the Premises, to the extent
caused by Tenant whether knowingly or unknowingly.
Tenant’s obligations hereunder shall include, without
limitation, and whether foreseeable or unforeseeable, all costs of
any required or necessary repairs, clean-up or detoxification or
decontamination of the Premises or the Improvements, and the
presence and implementation of any closure, remedial action or
other required plans in connection therewith, to the extent
required by Environmental Laws. For purposes of the indemnity
provided herein, any acts or omissions of Tenant, or its employees,
agents, customers, sublessees, assignees, contractors or
sub-contractors of Tenant (whether or not they are negligent,
intentional, willful or unlawful) shall be strictly attributable to
Tenant; any acts or omissions of Landlord, its employees, agents,
customers, assignees, contractors or sub-contractors shall be
strictly attributable to Landlord. Landlord agrees to
remediate, or cause to be remediated, to the extent required by
Environmental Laws, any Hazardous Materials which are not the
responsibility of Tenant.
The foregoing
covenants shall survive the termination or expiration of this Lease
or Tenant’s right to possession of the Premises
hereunder.
11.
INSURANCE.
(a)
Tenant’s
Liability Insurance . Tenant agrees to carry, at its expense,
during the entire term hereof, a policy of comprehensive general
liability and property damage insurance in an
7
amount of not less than
$2,000,000.00 per occurrence, with respect to the Premises, and the
business operated by Tenant in the Premises.
(b)
Tenant’s Property
Insurance . Tenant agrees to carry, at its expense,
during the entire term hereof, insurance against fire, vandalism,
malicious mischief, and such other perils as are from time to time
included in a standard extended coverage endorsement insuring
Tenant’s merchandise, trade fixtures, furnishings, equipment
and all other items of personal property of Tenant located on the
Premises on a replacement value basis.
(c)
Requirements of
Tenant’s Insurance . All policies of insurance to be carried
by Tenant under this Lease shall (i) be in the amounts stated
above, subject to adjustment from time to time as reasonably
required by Landlord or Landlord’s lender; (ii) as to
liability insurance only, name Landlord, and any other parties in
interest designated by Landlord as additional insureds;
(iii) contain such endorsements as Landlord may from time to
time reasonably require; and (iv) be in form and substance
reasonably satisfactory to Landlord. Such insurance may be
furnished by Tenant under any blanket policy carried by it or under
a separate policy therefor. The insurance shall be with
an
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