Exhibit 10.14
FOURTH
AMENDED AND RESTATED
INDUSTRIAL
LEASE
THIS FOURTH AMENDED AND RESTATED INDUSTRIAL
LEASE ( “Lease” ) effective as of July 1, 2007
(the “Effective Date” ) by and between
Aerospace/Defense, Inc. , a South Carolina corporation
(hereinafter call the “Landlord” ) and Force
Protection Industries, Inc. and Force Protection, Inc. ,
Nevada corporations (collectively, the “Tenant”
).
RECITALS
1.
By Industrial Lease effective as of January 15, 2006, as amended by
instrument dated as of May 1, 2006, entitled “First Amendment
to Lease” (“First Amendment” ) and further
amended by instrument dated as of July 1, 2006, entitled
“Second Amendment to Lease” ( “Second
Amendment” ), and further amended by instrument dated as
of October 1, 2006, entitled “Third Amendment to Lease”
( “Third Amendment” ), the Landlord leased unto
Tenant certain premises within Building No. 1 situated in an
industrial project (the “Project” ) located in
Ladson (Charleston County), South Carolina. By the execution of
this instrument, the parties intend to amend and restate the Lease
according to the terms of Subsection 27K of the Lease.
2.
At the request of the Tenant, the Landlord has agreed to modify the
term “Premises” under the teams, conditions and
reservations hereunder as follows:
A.
Adding a total of 48,572 square feet to Paragraph 1A, Clause (i) of
the Lease which square footage is added to the definition of
“Leased Area” as of the Effective Date and is
comprised of the following:
1.
4,667 square feet comprised of two areas, one such area measuring
approximately 13 feet by 200 feet and being the eastern section of
the mezzanine between A and B Bays in Building No. 1 as shown on
Exhibit B to this Lease, and the other area measuring
approximately 13 feet by 159 feet and being the western section of
such mezzanine as shown on Exhibit B-1 to this Lease;
and
2.
43,905 square feet comprised of two areas of B-Bay in Building No.
1, one area measuring approximately 105 feet by 137 feet and
delineated as “West End of Bay B” on Exhibit C
to this Lease and the other area measuring approximately 90 feet by
364 feet and delineated on Exhibit C less an area measuring
approximately 60 feet by 54 feet (located toward the east end of
the Erection Trench) and delineated as “ASD retain” on
Exhibit C , which area is being retained by the Landlord for
the storage of machinery and equipment.
For clarification, once
all the additional square footage referenced in subsections 2A1
through 2A2 above have become added to and a part of the Leased
Area as hereinabove provided, the total square footage of Leased
Area shall total 218,339 square feet (comprising a total of the
following: 26,180 square feet referenced in Clause (i) of Paragraph
1A of the original Lease, plus 35,529 square feet referenced in the
First
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Amendment, plus 37,551
square feet referenced in the Second Amendment, plus 70,507 square
feet referenced in the Third Amendment, plus 48,572 square feet
referenced above).
B.
Adding to the definition of Premises an area of real property
located to the south/southeast of Building No. 1 shown and
delineated on Exhibit F as “Booth Area”
upon which the Tenant has heretofore constructed two paint booths
and a sandblast booth (the “New Blast Booth” )
and upon which the Tenant may construct additional paint and
sandblast booths.
C.
Deleting from the definition of Premises and from the definition of
Equipment, the “Sandblast Booth” [referenced in the
January 15, 2006 Industrial Lease as the “Sandblast
Booth” (shown on Exhibit A as the “Blast
Booth”)]; reducing from the Base Rent the amount of $2,975.00
per month representing the rent heretofore charged to the Tenant
for use of the Sandblast Booth; and allowing the Tenant at its sole
cost and expense to demolish the Sandblast Booth in consideration
for adding to the definition of Premises and to the definition of
Equipment the New Blast Booth, which at the termination or
expiration of this Lease shall be left by the Tenant in good
operating condition and shall become the property of the
Landlord.
3.
In consideration for amending the Lease as referenced in Recitals 1
and 2 above, the Tenant agrees to amend Paragraph 3A (a) by
increasing the Base Rent for the Leased Area as hereinafter
provided.
4.
The Landlord and Tenant now wish to enter into this instrument to
amend and restate the Lease according to the terms, provisions and
conditions hereinafter set forth.
NOW
THEREFORE, in consideration of all the recitals set forth above in
the “Recitals” clauses, which are hereby made an
integral part of this Lease, and the mutual promises given one to
the other, the parties do hereby covenant and agree to amend and
restate the Lease as follows:
1.
THE PREMISES .
A.
The property hereby leased to the Tenant is a portion of a certain
building (“Building No. 1” or
“Building” ) which is a part of an industrial
development owned by the Landlord and located in Ladson, Charleston
County, South Carolina ( “Project” ). The term
“Premises” means and is comprised of the
following: (i) a portion of the Building outlined and marked
“Premises” on Exhibit A consisting of
approximately 218,339 square feet of Building No. 1 (the
“Leased Area” )(1), (ii) the fixtures
(collectively the “Equipment” ) located therein,
including the Paint Spray Booth shown and marked on Exhibit
A as “Paint Booth,” the New Blast Booth
shown and marked on Exhibit F as the “New Blast
Booth,” 100 HP compressor and 75 HP compressor associated
therewith (the “Compressors” ), together with
other machinery associated with the Paint Booth, the New Blast
Booth and Compressors as listed on Exhibit A-1 , all other
fixtures, machinery and equipment listed on Exhibit A-1 ,
and all cranes ( “Cranes” ) located within the
Leased Area including the use of (y) the radio-controlled
overhead/bridge Cranes located above the floor area of Bays A, B, C
and D, together with radio controllers
(1) For
clarification, the only portions of Building No. 1 not leased to
the Tenant under this Lease are (a) that portion of Building No. 1
leased by the Landlord to Tenant under Office Lease dated as of
June 1, 2005, and (b) that portion of Building No. 1 retained by
the Landlord and delineated as “ASD retain” on
Exhibit C .
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associated with each such crane, and (z) all
(approximately 25) jib cranes located throughout Building No. 1,
(iii) two outdoor areas for the testing of vehicles (collectively,
the “Outdoor Testing Areas” ) described as (y)
approximately 500 feet of the entrance road (connecting Highway 78
and Stoney Road and located to the east of the common parking
areas) (the “Entrance Road” ) running from a
point adjacent the southeastern corner of the Building No. 3 common
parking area and running in a southerly direction for 500 feet to a
point north of the location of the Entrance Road across which
railroad tracks have been installed — shown as the redline on
Exhibit D to this Lease and marked “Vehicle Brake
Test Track” thereon (the “Brake Test
Area” ) and (z) an approximately 25 foot wide area
running westerly from the Entrance Road and continuing around the
former pond area (on which pond area the Landlord is growing pine
trees) — shown as the green line on Exhibit D to this
Lease and marked “FPII Vehicle Obstacle Course”
thereon (the “Obstacle Course Area” ), and (iv)
the Booth Area. The use by the Tenant of the Outdoor Testing Areas
and the Booth Area shall be subject to all of the terms, conditions
and provisions of this Lease and this Amendment, especially
including, without limited the foregoing, those provisions
contained in the second paragraph of Section 9B of this Lease. (The
terms Paint Spray Booth and New Blast Booth shall hereinafter be
referenced as the “Booths.” The Booths,
Compressors and Cranes, together with the fixtures, machinery and
equipment listed on Exhibit A-1 shall be included in the
definition of and may hereinafter be referenced collectively as the
“Equipment.” ) Notwithstanding the foregoing,
the Landlord reserves to itself the following: (a) the right of
pedestrian and vehicular ingress and egress across the Leased Area
to and from the area marked “ASD retain” on Exhibit
C for the purpose of placing into or removing from such area
machinery and equipment, (b) access to and use of the stairs
(marked “Stairs” on Exhibit A across the
Leased Area to the “ASD retain” area, and (c) access to
and use of the area along the railroad tracks located in the west
end of Bay B for the purpose of storing the Project’s
locomotive therein, and (d) access to and use of the overhead
bridge cranes (together with associated controllers) above the
“ASD retain” area for the purpose of placing into or
removing from such area machinery and equipment. The “Wash
Area” marked on Exhibit A is included in the
Premises; however, while Tenant may use the Wash Area as an area
for storage, it is understood that (except as otherwise permitted
by the Landlord by an amendment to this Lease) the Tenant shall not
dispose of any liquids or any other substance into the drains
within the Wash Area and shall continuously throughout the Term (as
defined above) carefully cover these drains to prevent any
substances from falling into the drains. Subject to Paragraph
5B(viii), in connection with the lease of the Premises, the Tenant
shall have the right to non-exclusive use in common with the
Landlord and other tenants and occupants of the Project, the
“Common Areas” (hereinafter defined).
B.
Tenant represents that Tenant has examined the physical condition
of the Premises (especially including, without limitation, the
Leased Area, Outdoor Testing Areas, the Equipment, and the Booth
Area) and has found them satisfactory for all purposes hereof and
Tenant accepts the Premises in their present condition, “AS
IS.”
2.
TERM .
A.
The term of this Lease shall expire on July 14, 2008 (
“Initial Term” ). The Initial Term and any
extension thereof are hereinafter referred to collectively as the
“Term.”
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B.
For purposes of this Lease, the term “Lease
Year” shall refer to a period of twelve (12) consecutive
months beginning June 1 of each calendar year.
C.
The Initial Term of this Lease and any extension thereof may be
extended at the option of the Tenant for four (4) separate and
successive periods of five (5) years each (each an “Option
Period” ) commencing on the day following the expiration
date of the initial Term or the last day of the then-current Option
Period, as the case may be. Tenant may exercise the option by
notice in writing to Landlord served at least six (6) months and
not more than twelve (12) months prior to the end of the last year
of the Initial Terra or the then-current Option Period, as the case
may be. It shall be a condition of the exercise of any option to
renew that Tenant shall not be in default in the performance of any
terms, covenants, or conditions of this Lease at the time Tenant
gives any such notice to renew this Lease. All terms and conditions
of this Lease shall be applicable to the Option Periods referred to
in this Section 2C.
D.
Notwithstanding the foregoing in this Section 2, the Term of this
Lease and the term of that certain Lease between the parties dated
as of July 13, 2004 covering Building No. 2 located within the
Project (the “Building No. 2 Lease” ) shall be
coterminous; that is, the Term of this Lease must be the same as
the terra of the Building No. 2 Lease. For clarification, for the
Tenant to exercise its option to renew and extend this Lease under
Section 2C above, the Tenant shall have also exercised its option
to renew for the same 5-year period pursuant to Section 2C of the
Building No. 2 Lease, and if the Building No. 2 Lease expires or
terminates, this Lease shall also expire and terminate at the same
time. (See also, cross-default provision in Section 20 of this
Lease.)
3.
BASE RENT .
A.
Beginning on July 1, 2007 and for the remainder of the Lease Year
ending May 31, 2008, the Tenant shall pay to the Landlord, without
previous demand therefore, and without setoff or deduction
whatsoever, the following net monthly rent ( “Base
Rent” ):
(a)
For the Leased Area – the monthly Base Rent shall be
$62,358.81 per month.
(b)
For the Paint Spray Booth – the monthly Base Rent shall be
$2,500.00 per month.
(c)
For the Compressed Air System – the monthly Base Rent shall
be $500.00 per month.
B.
Commencing on July 1, 2008 ( “First Adjustment
Date” ) and on the first day of June at the beginning of
each Lease Year thereafter ( “Subsequent Adjustment
Date” ) during the Initial Term and any Option Period,
the amount of the monthly Base Rent due under this Lease shall be
adjusted to an amount equal to the product of the then-current
monthly Base Rent multiplied by a fraction having as its numerator
the Consumer Price Index (hereinafter defined) published most
recently prior to applicable Adjustment Date and as its denominator
the Consumer Price Index published most recently prior to
Commencement Date. In the event the new Base Rent cannot be
determined as of the Adjustment Date, Tenant shall continue to pay
the Base Rent due during the prior Lease Year until Landlord
notifies Tenant of the Base Rent, and,
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within ten (10) days after delivery of such
notice, Tenant shall reimburse Landlord for any accrued but unpaid
increase. In no event shall the monthly Base Rent, as adjusted on
any Adjustment Date, be less than three percent (3%) over the Base
Rent payable during the prior Lease Year, nor increase by more than
seven percent (7%) over the monthly Base Rent payable during the
prior Lease Year.
C.
As used herein, the term “Consumer Price Index”
shall mean the bi-monthly Consumer Price Index published by the
Bureau of Labor Statistics of the U.S. Department of Labor, using
the index titled “Consumer Price Index — All Items
— All Urban Consumers (CPI-U) (1982-84 = 100)” for the
Atlanta, Georgia Standard Metropolitan Statistical Area. If the
Consumer Price Index shall no longer be published or cannot be
adjusted, then another index generally recognized as authoritative
shall be substituted therefore by Landlord, and the term
“Consumer Price Index” shall refer to such substituted
index.
D.
All monthly Base Rent payments and any other payments due Landlord
under this Lease shall be made without any setoff or deduction
whatsoever and without prior notice or demand and shall be payable
and delivered to:
Aerospace/Defense,
Inc.
4838 Jenkins
Avenue
North Charleston, SC
29405
or
to such other place as may be designated by notice in writing from
Landlord to Tenant. Base Rent and other payments due Landlord by
the Tenant under this Lease received more than ten (10) days after
the due date of such payment shall be subjected to a late penalty
of one (1%) percent of the amount of such payment for each month,
or portion thereof, such payment is late. No payment by Tenant or
receipt by Landlord of any lesser sum than the monthly Base Rent
stipulated in this Lease shall be deemed to waive the right of
Landlord to receive in a timely manner the full amount due and
payable to the Landlord.
4.
UTILITIES .
A.
It is understood that utility services at the Project of which the
Premises is a part are supplied at one point of delivery through
one meter. Subject to Subsections 4A (a), (b) and (c)
hereof, Tenant shall reimburse Landlord for Landlord’s cost
of providing utility services to the Premises on the basis of
Tenant’s usage of same. With respect to such utility
services, the amount for which Landlord will be reimbursed includes
both the consumption factor and so-called “demand” or
“standby” factor, if the latter factor is employed for
billing purposes by the company providing the utility service.
(a)
Provided Tenant only consumes water for personal use and normal
maintenance and not for any manufacturing process, Tenant’s
pro rata portion of the Project’s water and sanitary sewer
bill will be an amount equal to the product of (1) the total water
or sewer bill, as the case may be, for the entire Project,
multiplied by (2) a fraction having as its numerator the total
number of employees who work at the Premises and as its denominator
the total number of employees who work in all buildings in the
Project. If the Tenant consumes water for any manufacturing or
industrial process, the Tenant’s pro-rata portion of the
Project’s
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water and sanitary sewer bill will increase on
the basis of the Landlord’s reasonable determination of the
Tenant’s usage of same.
(b)
Tenant’s pro rata share of the county solid waste recycling
fee paid by the Project for solid waste hauled from the Project
shall be an amount equal to the product of (1) the total solid
waste recycling fee paid by the Project for the period in question,
multiplied by (2) a fraction having as its numerator the volume of
all trash dumpsters at the Premises picked up during the period in
question and as its denominator the volume of all trash dumpsters
at all buildings in the Project picked up during the same time
period. For purposes of this paragraph, the volume of a trash
dumpster picked during a billing period will be determined by
multiplying the capacity of the trash dumpster in cubic yards by
the number of times such trash dumpster is picked up during the
billing period, whether or not such trash dumpster was filled to
capacity at the: time it was picked up. It is acknowledged by the
parties that the Tenant shall provide the Tenant’s own trash
dumpsters and shall pay for the hauling of trash therefrom.
(c)
In the event the Tenant utilizes water to wash machinery and
equipment within the Wash Area (including utilizing sump pump and
floor drains connected therewith) (i) the Landlord shall use its
reasonable judgment to calculate (and thereafter add to the
periodic charges contemplated under subsection (a) above) the
amount of the water and sanitary sewer bill associated with the use
of water for washing Tenant’s machinery and equipment within
the Wash Area; and (ii) the Tenant shall be responsible for
reimbursing the Landlord on a monthly basis all costs and expenses
associated with utilizing the Project’s oil/water separator
plant and system (the “separator plant” )
(leading from the two floor drains in the Wash Area into the
Project’s oil/water collection pit located between Buildings
No. 1 and 2 of the Project), such costs and expenses shall include,
without limitation, labor, utilities, materials (such as, for
example, Celite Diatomite product used in the oil/water separator
process), maintenance of equipment associated with the separator
plant, and all costs and expenses associated with disposal of the
residue. Prior to washing any machinery and equipment within the
Wash Area, and emptying any contaminated water into the separator
plant, the Tenant, in addition to obtaining the Landlord’s
consent, mast also obtain necessary permits and licenses required
to operate the separator plant.
B.
Except to the extent such utilities are in the future separately
metered and billed to the Tenant directly, Landlord shall bill
Tenant as soon as practicable the monthly charges for the utilities
associated with the Leased Area and the use of the fixtures located
therein. All monthly utility charges paid more than thirty (30)
days after receipt of an invoice from the Landlord shall be subject
to a late penalty of five percent (5%) of the amount of such
payment.
C.
If the parties are unable to agree upon Tenant’s usage of
utilities, Tenant shall have the option either (i) to install, at
Tenant’s expense, separate meters or submeters, or (ii) to
cause Landlord to employ (not more than once each Lease Year) a
mutually acceptable engineering firm, whose fees will be equally
shared by Landlord and Tenant, to determine Tenant’s share of
utilities consumed in the Project by usage survey. Tenant will be
responsible for the maintenance of separate meters or sub-meters.
Until any such engineering firm determines Tenant’s share of
any disputed utility charges, the Tenant agrees to reimburse
all
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amounts invoiced by the Landlord based on the
Landlord’s estimate of Tenant’s share of utility
charges.
D.
Landlord will cause the lawns in the Project to be cut
periodically. Tenant will reimburse Landlord for the portion of the
cost of cutting and trimming all lawns in the Project attributable
to the Premises. Tenant’s pro rata portion of the cost of
cutting and trimming all lawns in the Project shall be an amount
equal to the product of the total cost of cutting and trimming all
lawns in the Project multiplied by a fraction having as its
numerator the square footage of the Leased Area in Building No. 1
(to wit: 218,339 sq. ft.) and as its denominator the square footage
of all buildings in the Project (to-wit: 480,000 square feet);
provided, however, the Tenant’s proportionate share of such
cost of cutting and trimming during any Lease Year will not
increase by more than twenty (20%) percent over the prior Lease
Year.
5.
ADDITIONAL RENT/TAXES AND FEES .
A.
If the Leased Area is not a separate tax parcel, Landlord shall
pay, prior to delinquency, all “Impositions”
(hereinafter defined) which are levied, imposed, or assessed upon
or against the Leased Area and Project. Tenant covenants to pay to
Landlord, as additional rent, on or before the later to occur of
(a) thirty (30) days after receipt of an invoice therefore or (b)
thirty (30) days before the day a fine, penalty, interest or cost
may be added thereto for the non-payment thereof, Tenant’s
pro rata share determined by multiplying all the Impositions for
the project by a fraction having as its numerator the square
footage of the Leased Area and as its denominator the total square
footage of all buildings in the Project.
(i)
If the Leased Area is separately assessed and billed, such
Impositions shall be paid prior to delinquency by the Tenant
directly to the taxing authorities. Tenant shall furnish to
Landlord, promptly after payment of any Impositions paid directly
to taxing authorities, official receipts or other satisfactory
proof evidencing payment of such Imposition.
(ii)
As used herein, the term “Impositions” shall
include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, or
commercial rental tax based on the gross rents paid hereunder, levy
or tax imposed on the Leased Area by any authority having the
direct or indirect power to tax, including any city, state or
federal government, or any school, agricultural, sanitary, fire,
street, drainage or to the improvement district thereof, as against
any legal or equitable interest of Landlord in the Leased Area or
in the real property of which the Premises is a part, as against
Landlord’s right to rent therefrom (provided such tax is
assessed on gross rents payable hereunder), and as against
Landlord’s business of leasing the Leased Area (provided such
tax is assessed on gross rents payable hereunder). With respect to
any assessment which under the laws then in force may be paid in
installments, there will be included within the meaning of the term
“Impositions” for any tax fiscal year only the current
annual payment. Impositions will not include (i) any franchise,
gift, estate, inheritance, conveyance, transfer, or other tax
assessed against Landlord or Landlord’s heirs, successors or
assigns, or (ii) any income, excess profit or other tax,
assessment, charge, or levy on the net rent payable by Tenant under
this Lease.
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(iii)
Tenant shall pay prior to delinquency all taxes assessed against
and levied upon the Equipment and upon trade fixtures, furnishings,
equipment, inventory and all other personal property of Tenant
contained in the Leased Area or elsewhere within the Project. When
possible, Tenant shall cause such trade fixtures, furnishings,
equipment and other personal property to be assessed and billed
separately from the real property of Landlord. If any of
Tenant’s personal property shall be assessed with
Landlord’s real property, Tenant shall pay Landlord the taxes
attributable to Tenant within thirty (30) days after receipt of a
written statement setting forth the taxes applicable to
Tenant’s property, together with a copy of the taxiing
authority’s billing to Landlord.
(iv)
All Impositions for the partial tax fiscal years falling within the
Term will be prorated by multiplying the amount of Impositions for
the partial tax fiscal year falling within the Term by a fraction
having as its numerator the number of days in such tax fiscal year
falling within the Term and having as its denominator the number
“365”.
(v)
Tenant will have the right to contest the amount or validity of
Impositions by appropriate administrative and legal proceedings
brought either in Tenant’s name, Landlord’s name or
jointly with Landlord, as Tenant may deem appropriate, by counsel
selected and engaged by Tenant. Landlord will execute and deliver
to Tenant whatever documents may be reasonable, necessary and
proper to permit Tenant to contest Impositions or which may be
reasonably necessary to secure payment of any refund which may
result from any such proceedings. Tenant agrees to reimburse
Landlord for any expenses or additional costs assessed to, or
incurred by, Landlord in the event Tenant contests the amount or
validity of Impositions. Any refund resulting from a proceeding
brought either by Tenant or Landlord or by them jointly will be
applied first to reimburse the party or parties who brought the
proceeding for the costs incurred with the proceeding (including
any reimbursement by Tenant to Landlord described above), with the
remainder being distributed, to Tenant if the Premises is a
separate tax parcel or on a pro-rata basis (determined in the
manner described in Subsection 5A above), to each of tenants
in the Project, if the Leased Area is not a separate tax
parcel.
B.
Tenant shall, in addition to the monthly Base Rent and pro rata
portion of Impositions referred to above, also be responsible for
Tenant’s pro rata portion of all expenses incurred by
Landlord for (i) grounds maintenance (landscaping), (ii)
watch-personnel referenced in subsection (viii) below, and (iii)
other Common Area maintenance and utility charges such as for
lighting and maintenance for internal streets and parking
facilities (collectively, “Common Area Charges”
). Tenant’s pro rata portion of these Common Area Charges
shall be an amount equal to the product of the total Common Area
Charges for the Project multiplied by a fraction having as its
numerator the square footage of the Leased Area and as its
denominator the square footage of all buildings in the Project.
(i)
Common Area Charges will not include Impositions (unless the
Leased Area is a separate tax parcel), cost of capital improvements
or repairs (provided such repairs cannot be attributed to Tenant),
including, without limitation, repainting of buildings and total
repaving of the parking areas, cost of roof repairs, cost of
repairs covered by insurance, cost of constructing leasehold
improvements for any other lessee of Project, legal or brokerage
fees associated with any lease for space in Project, cost of
advertising by Landlord, management fees, whether payable to
Landlord or third parties, so-called “administrative
charges” or other add-ons
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to
the total of Common Area Charges, principal or interest on debt or
amortization payments on any mortgages or deeds of trust or any
other debt for borrowed money and amortization of improvements,
depreciation of Landlord’s original investment in Project,
amounts paid by Landlord to affiliates of Landlord for services in
connection with the Common Areas, but only to the extent that any
such fees are in excess of the ordinary and reasonable fees paid in
arms’ length transactions, amounts expended in remediation of
Hazardous Substance contamination in the Common Areas, provided the
contamination cannot be attributed to Tenant or another occupant of
the Project, or the cost of compliance in the Common Areas with the
Americans with Disabilities Act, provided compliance is not related
to the use and occupancy of Tenant or another occupant of the
Project.
(ii)
Tenant’s pro rata share of Common Area Charges (on an
annualized basis) will not increase in any one calendar year after
the first full calendar year of the Term by more than six percent
(6%) of Tenant’s pro rata share of Common Area Charges for
the previous full calendar year.
(iii)
Tenant’s accountants will have the right to inspect, upon
reasonable prior notice and at reasonable times and in a reasonable
manner, such of Landlord’s books of account and records as
pertain to Common Area Charges.
(iv)
Once each calendar year, Landlord will deliver a statement (
“CAM Statement” ) to Tenant showing: the amount
of actual Common Area Charges for the preceding calendar year, with
a breakdown of amounts by major categories of Common Area Charges
and Tenant’s pro rata share and the detail for determining
same. Within thirty (30) days of the receipt of the CAM Statement,
Tenant shall pay Landlord Tenant’s share of any deficiency in
payments made by the Tenant during the preceding calendar year of
Tenant’s proportionate share of the Common Area Charges; the
Tenant shall be entitled to a credit in the next invoice for
monthly Base Rent becoming due and payable following the receipt of
the CAM Statement for any excess payments of Common Area Charges
made by the Tenant during the preceding calendar year.
(v)
If the Term commences other than on January 1, or ends other than
on December 31, Tenant’s obligations to pay amounts toward
Common Area Charges for such partial calendar years will be
prorated on the basis of the portion of such calendar years
included in the Term. Such proration shall be made by multiplying
the total Common Area Charges for the partial calendar year in
question by a fraction having as its numerator the number of days
of the Term within the partial calendar year, and as its
denominator “365”.
(vi)
The term “Common Areas” as used in this Lease
means those internal roads and parking areas of the Project marked
“Common Areas” on Exhibit E or any portions of
the Project substituted therefore. Landlord hereby grants to Tenant
and Tenant’ s customers, invitees and employees for the
entire Term, the right to use, in common with Landlord,
Landlord’s invitees and employees and with the other lessees
and occupants of Building and their respective customers, invitees
and employees, the Common Areas for their intended purposes,
subject to reasonable rules and regulations ( “Rules and
Regulations” ) to be promulgated by Landlord for the
convenience and safety of all of the lessees, occupants and users
of the Building; provided, Tenant shall be solely responsible for,
and defend, hold harmless
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and
indemnify the Landlord and its agents and employees from, any
damage for injury caused within the Common Areas and anywhere else
within the Project by any of Tenant’s employees and invitees.
Landlord will have the right to make reasonable modifications and
additions to the Rules and Regulations from time to time. The
Tenant shall cause its employees and invitees using the Premises to
park in the common area parking lots located to the north of
Building No. l and to the west of Building No. 4.
(vii)
During the Term, the Landlord will maintain the Common Areas in
reasonable order; provided, however, the Tenant shall cause its
employees, customers, agents and invitees to keep the Common Areas
in neat, clean, trash free and orderly condition. If the necessity
for repairs to or cleaning of any Common Areas shall have arisen
from or shall have been caused by the misuse of such Common Areas
or by the negligence or willful acts of the Tenant, its agents,
concessionaires, officers, employees, licensees, invitees or
contractors, Landlord may make or cause the same to be made, but
shall not be obligated to do so, and Tenant agrees to pay to
Landlord promptly upon Landlord’s demand, the cost of such
repairs and/or cleaning, if made. In the event Landlord elects not
to make such repairs or cleaning, Landlord may require Tenant
perform such at Tenant’s sole cost and expense.
(viii)
Landlord shall have the right, at Landlord’s sole cost and
expense, to relocate, change, move or alter the Common Areas, so
long as 24-hour ingress to and egress from the Premises is not
materially disturbed.
(ix)
Landlord shall provide twenty-four (24) hour controlled vehicular
access to the Project with on-site watch personnel. Each automobile
and truck of the Tenant or its employee, invitees and contractors
entering the Project (except those cars with special permits) shall
be required to sign in with Landlord’s watch personnel
stationed at the entrance gate located adjacent Building No. 4.
Landlord and Tenant shall endeavor to cooperate with each other in
an effort to develop a mutually acceptable method for controlling
access by Tenant and its employees, invitees and contractors
through this gate. Tenant shall pay to Landlord on a monthly basis
Tenant’s share of the cost of such controlled access/watch
personnel. Tenant’s share shall be determined by multiplying
the monthly cost of the watch personnel service by a fraction
having as its numerator the square footage of the Leased Area and
as its denominator, the square footage of all buildings in the
Project.
(x)
It is understood that the road-testing of armor-plated vehicles and
other similar heavy vehicles within the Project is prohibited with
the sole exception that such vehicles may be road-tested within the
Outdoor Testing Areas defined in Recital 2C above. The meaning of
“road-testing” in the previous sentence includes
exceeding the speed limit, making sudden sharp turns and sudden
stops, and accelerating at high speeds.
(xi)
It is acknowledged that the Landlord has repaved a portion of the
parking lot in front (north) of the office area of Building No. 1
(the “Front Parking Lot” ). It is understood
that the Front Parking Lot is designed and constructed for the
parking of automobiles and light-duty truck traffic (such as, for
example, US Postal Service, Federal Express, and other light-duty
delivery trucks). No heavy vehicles (such as, for example, tractor
trailer trucks and armor-plated vehicles) will be allowed on or
within the Front Parking Lot. Any damage to the
10
Front Parking Lot caused by the Tenant or arty
of its employees, contractors or invitees in violation of this
paragraph will be for the account of the Tenant.
6.
GENERAL ASSISTANCE .
The
Tenant shall have the right (i) to seek tax, utility and other
abatements and economic development incentives covering the Leased
Area (such as, for example, fee in lieu of real estate and personal
property taxes, job development credits, rants for improvements by
the Tenant to the Leased Area) (collectively, “Abatements
and Incentives” ), and (ii) to contest the amount or
validity of Impositions covering the Leased Area by appropriate
administrative and legal proceedings — both (i) and (ii)
above, brought either in Tenant’s name, Landlord’s name
or jointly with Landlord, as Tenant may deem appropriate, by
counsel selected and engaged by Tenant. Landlord will execute and
deliver to Tenant whatever documents may be reasonably requested by
the Tenant to permit the Tenant to seek such Abatements and
Incentives and to contest Impositions or which may be necessary to
secure payment of any refund which may result from any such
proceedings, and Landlord hereby agrees to cooperate as reasonably
requested by the Tenant in such endeavors by executing such
documents as reasonably requested by the Tenant. Tenant agrees to
pay to or promptly reimburse Landlord for any expenses incurred by
Landlord with regards
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