Exhibit 10.30
LEASE
THIS DEED OF LEASE,
dated as of the day of April,
2005, by and between SOUTHERN GRAPHIC SYSTEMS, INC., a
Kentucky corporation, hereinafter referred to as
“Tenant”, and 5301 LEWIS ROAD, L.L.C., a
Virginia limited liability company, hereinafter referred to as
“Landlord.”
WITNESSETH,
that for and in consideration of the
rent hereinafter reserved, and the covenants contained herein, the
parties hereby agree as follows:
Landlord hereby leases to Tenant the
portion of real property located at 5301 Lewis Road, Henrico
County, Virginia, which is outlined in red on Exhibit
A attached hereto, including a building located thereon
containing a total of 88,384 square feet, a layout of which is
attached hereto as Exhibit B , together with any
easements which are located between the Premises and Lewis Road
(the “Adjacent Parcel”) necessary to provide access to
the foregoing premises from Lewis Road across the adjacent
undeveloped land of Landlord (outlined in yellow on Exhibit
C attached hereto) (the “Premises”). The
Premises shall include all existing on-site parking (a minimum of
126 parking spaces), and all other paved areas located on the
Premises. Provided, however, Landlord retains the right to relocate
the parking designated on Exhibit A as “future
parking”, at Landlord’s sole cost and expense, provided
that the Premises shall thereafter continue to have a minimum of
126 parking spaces.
2.1. Term . The term of this
Lease shall be for ten (10) years and three
(3) months commencing May 1, 2005 (hereinafter
referred to as the “Commencement Date”). The term of
this Lease, as the same may be extended pursuant to
Section 41, shall be referred to herein as the
“Term”.
2.2. Exclusive Possession .
Subject to any rights expressly reserved to Landlord herein, Tenant
shall have exclusive access to the Premises, and shall have the
right, in its sole discretion, to prevent access across the
Premises by any future tenant of the Adjacent Parcel.
2.3 Option to Terminate .
Tenant shall have the right, at its sole option, to terminate this
Lease at any time after the end of the eighty seventh (87
th
) month after the
Commencement Date, provided that (i) Tenant is not then in
default of any of its obligations hereunder, (ii) Tenant shall
provide written notice of such termination at least two hundred
seventy (270) days prior to the early termination date, and
(iii) Tenant shall pay to Landlord, on or before the early
termination date, an amount equal to the unamortized cost of
(a) the Tenant Improvements (as defined herein), and
(b) the total brokerage commissions paid by Landlord to
Fischer & Company, both of which items are to be amortized
at the rate of eight and one-half percent (8.5%) per annum over the
original Term,.
2.4. Preparation of Premises
. The rights and obligations of Landlord and Tenant with respect to
the preparation of the Premises for occupancy by Tenant shall be
governed by the provisions of Exhibit D attached
hereto (the “Work Letter”).
3.1. Rent . Tenant shall pay
to Landlord as rent for the Premises the amounts set forth below,
payable without deduction, demand or offset, in equal monthly
installments (hereinafter referred to as the “Basic Monthly
Rental”), in advance on the first day of each calendar month
during the Term commencing on the first day of the Term, and
continuing on the first day of each month thereafter during the
Term, mailed to P. O. Box 6482, Richmond, Virginia 23230, or hand
delivered to 4801 Radford Avenue, Richmond, Virginia 23230. Rent
checks shall be made payable to Landlord. Should the Term commence
or terminate on a day other than the first day or the last day (as
the case may be) of a calendar month, the parties agree that rental
for the first and last month of the Term shall be prorated and rent
for the remaining months shall be due and payable on the first of
the month as provided above. As used herein the term
“Rent” shall mean all amounts of Basic Monthly Rental
as well as all additional rent or other payments which Tenant is
obligated to pay to Landlord, including, without limitation, the
amortization of the Tenant Allowance as provided in Exhibit
D hereto. Tenant shall not pay the Basic Monthly Rental
more than one (1) month in advance of its due date.
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Annual Rate/S.F.
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Rent/Mo.
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Rent/Ann.
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1-3
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$
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0.00
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$
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0.00
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$
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0.00
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4-15
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$
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4.75
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$
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34,985.33
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$
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419,824.00
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16-27
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$
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4.85
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$
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35,685.04
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$
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428,220.48
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28-39
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$
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4.95
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$
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36,398.74
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$
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436,784.89
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4D-51
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$
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5.05
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$
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37,126.72
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$
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445,520.59
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52-63
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$
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5.15
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$
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37,869.25
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$
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454,431.00
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64-75
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$
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5.25
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$
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38,626.63
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$
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463,519.62
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76-87
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$
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5.35
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$
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39,399.17
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$
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472,790.01
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88-99
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$
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5.46
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$
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40,187.15
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$
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482,245.81
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100-111
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$
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5.57
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$
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40,990.89
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$
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491,890.73
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112-123
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$
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5.68
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$
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41,810.71
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$
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501,728.54
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3.2 Operating Expenses .
Tenant shall be responsible for the payment of, or reimbursement to
Landlord for amounts incurred by Landlord, as operating expenses of
the Premises, including, without limitation, all real estate taxes,
insurance premiums for insurance coverage that is required pursuant
to this Lease (except for the pollution liability insurance policy
required under Section 11.7 of this Lease, for which Landlord
shall pay up to $100,000 of the premium cost), and all maintenance
expenses for maintenance required to be performed by Landlord
(except for certain maintenance and repair expenses which are the
sole responsibility of Landlord, pursuant to and to the extent set
forth in Section 8.1 hereof). Such maintenance expenses shall
include the cost of repairing and maintaining parking lots; access
roads; truck passageways; routine non-capital repairs to the roof
or roof membrane; drains, gutters and downspouts; landscaped areas;
exterior walkways; water, sanitary sewer and storm sewer systems
located outside the building; and the HVAC system (together with
real estate taxes and insurance premiums, the “Operating
Expenses”). Landlord estimates that the Operating Expenses
for 2005 shall be $1.45 per square foot. Payments made by Landlord
under the HVAC maintenance contract and the snow removal contract,
or any similar, generally consistent replacement contracts, shall
be included in the Operating Expenses and be reimbursed by Tenant
to Landlord. . All Operating Expenses that are contracted services
shall be at rates that are competitive in the Richmond, Virginia
metropolitan area for similar properties. Tenant shall pay to
Landlord on the first day of each month during the Term, beginning
May 1, 2005, an
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amount equal to 1/12 th of the anticipated Operating
Expenses for the applicable Lease year. Landlord shall deliver to
Tenant on or before February 28 th of each year during the Lease Term a
reconciliation of the Operating Expenses for the previous Lease
Year, which shall include sufficient detail to insure that the
Operating Expenses relate exclusively to the Premises, and not to
the Adjacent Parcel, and shall also deliver Landlord’s
estimate of Operating Expenses for the then current Lease Year. If
Tenant has over paid Operating Expenses for the preceding Lease
year, then the amount of the overpayment shall be credited against
the next succeeding month or months of Operating Expense payments
by Tenant or, at Tenant’s option, such overpayment shall be
refunded to Tenant within ten (10) days of Tenant’s
request therefor. If Tenant has underpaid Operating Expenses for
the preceding Lease year, Tenant shall pay the balance due to
Landlord within thirty (30) days after receipt of
Landlord’s reconciliation.
3.3. Tenant’s Expenses
. Except as provided in Section 3.2 above, Tenant shall be
responsible for the maintenance and repair of all non-structural
portions of the Premises. In addition, Tenant shall enter into a
contract providing for annual maintenance and testing of the
sprinkler system, or assume such a contract from Landlord, which
contract shall be reasonably acceptable to Landlord and Tenant, and
Tenant shall provide the results of all such service and testing to
Landlord. Tenant shall also be responsible for entering into an
annual agreement for the provision of a security system (for
burglary protection and monitoring of the sprinkler system), at its
sole cost and expense, which contract shall be reasonably
acceptable to Landlord.
3.4. Late Payment . Tenant
hereby recognizes and acknowledges that if Rent is not received
when due, Landlord will suffer damages and additional expense
thereby and Tenant therefore agrees, in addition to such other
remedies as are available to Landlord, to pay as additional rent
(if not waived by Landlord) a service charge equal to five percent
(5%) of any sum due hereunder which is not paid within seven
(7) days of its due date. Notwithstanding the foregoing,
Tenant shall only be required to pay such service charge if more
than two (2) payments are not paid within seven (7) days
of their due dates in the course of any calendar year. If Tenant
fails to pay Rent within fifteen (15) days of its due date,
such payment shall bear an interest rate of ten percent
(10%) per annum. Furthermore, should Tenant fail to pay Rent
when due three times during any calendar year, Landlord or its
managing agent, Porter Realty Company, Inc. (
“Porter” ) shall have the right to require that
Rent be made by certified or cashier’s check, or wire
transfer.
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4.
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Financial
Responsibility.
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Tenant shall provide to Landlord,
upon Landlord’s request and only in connection with a sale or
refinance of the Premises and no more often than once per calendar
year during the Term, reasonable financial information concerning
Tenant’s financial condition, provided the recipient(s) of
such financial information first execute and deliver to Tenant
Tenant’s form confidentiality agreement.
The Premises shall be used and
occupied only for general office, manufacturing, assembly, storage,
distribution uses, and any other lawful uses, and in strict
accordance with all applicable laws and regulations of governmental
authorities. It shall be Tenant’s responsibility to obtain
assurance that the Premises is property zoned for Tenant’s
contemplated use. Tenant shall not use or permit or suffer the use
of the Premises for any unlawful or offensive business or purpose;
use or permit the walls, fences or roof of the Premises to be used
for advertising
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purposes without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, delayed
or conditioned; or operate diesel-powered forklifts upon or about
the Premises at any time. Tenant shall not use nor permit the use
of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant in the building
containing the Premises, wilt tend to disturb such other tenants.
Tenant shall not store inventory, supplies or personal property
outside of the building.
The Premises are separately metered
for all public utilities for Tenant’s utility consumption.
Tenant agrees to pay when due all utility charges incurred in
connection with its use and occupancy of the Premises, including,
but not limited to, electricity, gas, water, sewer and telephone
and to immediately transfer all utility accounts into its own name
and to make all required deposits at the Commencement Date. Tenant
shall at all times keep the Premises adequately heated to prevent
the sprinkler system and water pipes from freezing. Tenant shall
keep all utilities connected and in use during the entire Term.
Should Tenant discontinue the use of any utility during the term,
Landlord may pay all fees for the re-connection and reasonable use
of the utilities during the remainder of the Term and any costs
incurred by Landlord shall be charged to Tenant as additional rent
due within thirty (30) days of demand.
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7.
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Condition of
Promises.
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7.1. Guaranties . Landlord
agrees that Tenant may have the benefit of any guarantees or
warranties which Landlord holds or may receive on any equipment or
systems in the Premises for whatever period said guarantees and
warranties may apply. This shall not, however, relieve Tenant from
any responsibility for damage caused by its negligence or for
maintenance or repairs as provided for in Section 8.3 below.
Nothing herein contained shall constitute any representation that
such guarantees and warranties are assignable or that Landlord
warrants performance by the guarantor or warrantor.
7.2. Acceptance of Premises .
Subject to construction of the Tenant Improvements, as provided in
the Work Letter, and further subject to the obligations of Landlord
set forth in Section 7.3 below, Tenant hereby accepts the
Premises and any equipment thereon in their condition existing as
of the Commencement Date or the date that Tenant takes possession
of the Premises, whichever is earlier, subject to all applicable
zoning, municipal, county, state and federal laws, ordinances and
regulations governing and regulating the use of the Premises (or
any equipment thereon), and any easements, covenants, restrictions
or other matters of record, and accepts this Lease subject thereto
and to all matters disclosed thereby and by any exhibits attached
hereto, and further subject to latent defects in materials and
workmanship. Landlord shall deliver the Premises to Tenant on the
Commencement Date in full compliance with the Americans With
Disabilities Act, 42 U.S.C. § 12101 et seq, {the
“ADA”). If any Improvements are required to be made to
the Premises pursuant to the ADA after the Commencement Date
resulting from a change in the use of the Premises by Tenant from
the previous tenant’s use of the Premises, such cost shall be
paid by Tenant or reimbursed to Landlord within thirty
(30) days after written request, accompanied by copies of
invoices for such work. Tenant shall cause all alterations and
Improvements to the Premises made by or on behalf of Tenant after
the Commencement Date to be in full compliance with the ADA. Except
as provided in this Section, Tenant shall have no responsibility
with respect to insuring compliance of the Premises with the ADA.
Tenant acknowledges that neither Landlord nor Porter has made any
representation or warranty as to the present or future suitability
of the Premises or any
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equipment thereon for the conduct of
Tenant’s business. Neither Landlord nor Porter shall be under
any duty to instruct Tenant or others as to the use of arty
equipment on the Premises.
7.3 Landlord shall replace the
existing roof and replace HVAC units RTU 1-17 and SS-1 as
promptly as practicable, taking into consideration the requirements
of the last paragraph of the Work Letter. Landlord shall replace
HVAC units RTU 18-21 when needed, pursuant to the recommendation of
Colonial Mechanical Corporation or the HVAC vendor reasonably
approved, in writing, by Landlord under contract for the Premises.
Exhibit E attached hereto depicts alt of the HVAC units, by
number.
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8.
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Maintenance
and Repairs.
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8.1. Structural Maintenance .
Landlord shall maintain in good condition and repair the structure
of the Premises including the roof, roof membrane, drains, gutters,
downspouts, foundation, exterior walls, floor slab, parking areas,
driveways and sidewalks. The sprinkler system suspended in the
Premises shall be the sole responsibility of Tenant. Landlord shall
make all repairs becoming necessary by reason of any structural
defect in the Premises; provided, however, that Landlord shall not
be required to make any repairs necessitated by reason of any act
or omission by Tenant, its employees, agents, licensees, invitees
or anyone entering the Premises by force, but if Landlord does make
any such repairs, Tenant agrees to promptly, within thirty
(30) days after receipt of demand, reimburse Landlord for the
full cost thereof. Any capital repairs to the roof or roof
membrane, drains, gutters, downspouts, foundation or exterior walls
shall be made at Landlord’s sole cost and expense.
Notwithstanding the foregoing, the cost of any other repairs or
maintenance incurred by Landlord shall constitute Operating
Expenses. Landlord shall be responsible, at its sole cost and
expense, for all repairs or replacements to the HVAC systems
costing over $500.00; provided, however, that the figure of $500
shall be increased by $250 on the fifth anniversary of the
Commencement Date, and on the first day of each fifth year
thereafter during the Term including any renewals or extensions
thereof. Tenant shall be responsible for the repair of any pipes or
sprinkler systems rendered inoperative or damaged by Tenant
’s failure to keep the Premises
adequately heated and for any damages or injuries caused by such
failure. No liability shall be imposed on Landlord because of any
injury or damage to personal property, or because of any
interference with the services and facilities listed above, caused
by accidents, riots, strikes, or any other reason beyond the
control of Landlord, and Landlord shall be under no duty to restore
any of such services and facilities or to make any of the repairs
for which Landlord is obligated, except after receipt of written
notice from Tenant of a need therefor, and there shall be a
reasonable period of time within which Landlord may make such
repairs. Any costs which would be considered capital expenses under
generally accepted accounting principles shall not be treated as
Operating Expenses, and shall be paid solely by Landlord. Landlord
hereby represents and warrants to Tenant that, as of the
Commencement Date, (i) all building systems are in good
working order, (ii) Landlord is not aware of any structural or
major repairs required to be effected to the Premises;
(iii) Landlord has not received any notice of noncompliance
with laws with respect to the Premises, which has not been
remedied; and (iv) to the best of Landlord’s knowledge,
the Premises presently complies with all laws applicable to the
structural components, base building systems and common areas of
the Premises.
8.2. Snow and Ice Removal .
Landlord shall enter into an annual contract for snow removal,
which contract shall be reasonably acceptable to Tenant, the cost
of which shall be an Operating Expense. Such contract shall provide
that snow removal shall be provided upon the accumulation of three
(3) inches of snow and that chemicals which may cause damage
to concrete and other paved areas shall not be used.
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8.3 Other Maintenance. Repairs
and Replacements . Except as otherwise expressly provided in
Section 8.1 and except to the extent a guarantor or warrantor
performs under Section 7.1, Tenant shall, at its own expense,
during the Term, keep the non-structural portions of the Premises
in good order and condition, and make all repairs and do all acts
of maintenance becoming necessary in, upon or about the Premises,
at Tenant’s expense and shall maintain the floors and walls
in a clean condition.
9.1. Installation . Tenant
shall not make any alterations, additions, modifications or
improvements (the “Alterations”) to the Premises
affecting the structure of the Premises or costing in excess of
$50,000.00 per occurrence without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, delayed
or conditioned, nor without the consent of any mortgagee to the
extent required. Any expenses incurred by Landlord in supervising
construction of any non-structural Alterations shall be paid by
Landlord. If Tenant makes any structural Alterations, Tenant shall
reimburse Landlord the reasonable cost incurred by Landlord to
supervise such structural Alterations. If Tenant desires to make
any Alterations requiring Landlord’s consent, plans for same
shall first be submitted to and approved in writing by Landlord,
and same shall be done by Tenant, at its own expense, and Tenant
agrees that all such work shall be done in a good and workmanlike
manner and in accordance with applicable laws and regulations, that
the structural integrity of the building shall not be impaired,
that no penetration of the roof or any roofing membrane shall
occur, that no liens shall attach to the Premises by reason
thereof, and that Tenant will secure all necessary permits
pertaining to the aforementioned Alterations. In the event that
Tenant makes Alterations to the Premises which do not require
Landlord’s consent Tenant shall provide to Landlord a copy of
all plans for same for information purposes only and, upon
completion of such Alterations, Tenant shall provide Landlord a
copy of the “as built” plans for Landlord’s
files. Tenant will not suffer or permit any contractor’s,
subcontractor’s or supplier’s lien (a
“Lien”) to be filed against the Premises or any part
thereof by reason of work, labor services or materials supplied or
claimed to have been supplied to Tenant; and if any Lien shall at
any time be filed against the Premises or any part thereof, Tenant,
within thirty [30) days after receipt of written notice of the
filing thereof, shall cause it to be discharged of record by
payment, deposit, bond, order of a court of competent jurisdiction
or otherwise. If Tenant shall fail to cause such Lien to be
discharged within the period aforesaid, then in addition to any
other right or remedy, Landlord may, but shall not be obligated to,
discharge it either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or by bonding
proceedings. Any amount so paid by Landlord, plus all of
Landlord’s costs and expenses associated therewith
(including, without limitation, reasonable legal fees), shaft
constitute additional rent payable by Tenant under this Lease and
shall be paid by Tenant to Landlord on demand with interest from
the date of advance by Landlord at the rate of eight percent
(8%) per annum.
9.2. Ownership and Removal .
The Alterations, additions, modifications and improvements referred
to in Section 9.1, if consented to in writing by Landlord, or
if Landlord’s consent is not required shall become part of
the real property as soon as they are affixed thereto and Landlord
shall not require that Tenant remove all or any part of such
Alterations prior to the expiration of the Term. Tenant may, at its
expense, remove any non-structural alterations provided that Tenant
repairs any damage to the Premises resulting from the removal of
such alterations, as Tenant’s sole cost and
expense.
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Intentionally deleted.
11.1 Tenant represents and warrants
to Landlord that, during the term of this Lease, no Hazardous
Substance (defined below) will be spilled, released, discharged,
disposed, placed or otherwise caused to be located in the air, soil
or water in, under or upon the Premises by Tenant.
11.2 Tenant agrees to defend,
indemnify, and hold Landlord, its agents, representatives,
officers, shareholders, directors and employees and its successors
and assigns (collectively, the “Landlord Indemnities”),
harmless against any and all liabilities, including but not limited
to, losses, damages, actions, costs, fees of attorneys, consultants
and experts and other expenses of any nature whatsoever which may
be asserted against any of the Landlord Indemnitees, on account of
any grounds whatsoever, including without limitation, any suit,
administrative proceeding, citation, remediation demand, or
judgments by any person or entity arising out of the spillage,
release, discharge, disposal, or placement in or upon the air, soil
or water in, under or upon the Premises caused by the sole actions
or inactions of Tenant, its employees, agents, contractors and of
Tenant’s invitees (the “Tenant Parties”) of any
Hazardous Substance subsequent to the Commencement Date and during
the term of Tenant’s occupancy of the Premises.
11.3 Landlord agrees to defend,
indemnify, and hold Tenant, its agents, representatives, officers,
shareholders, directors and employees and its successors and
assigns (collectively, the “Tenant Indemnitees”),
harmless against any and all liabilities, including but not limited
to, losses, damages, actions, costs, fees of attorneys, consultants
and experts and other expenses of any nature whatsoever which the
Tenant Indemnitees may sustain, suffer or incur or which may be
asserted against any of the Tenant Indemnitees, or on account of
any grounds whatsoever, including without limitation, any suit,
administrative proceeding, citation, remediation demand, or
judgments by person or entity arising out of any past or future
spillage, release, discharge, disposal, or placement in or upon the
air, soil or water in, under or upon the Premises by anyone other
than a Tenant Party during the term of this Lease of any Hazardous
Substance.
11.4 For purposes of this Lease, the
term “Hazardous Substance” shall mean any substance,
chemical, or waste that is or shall be listed or defined as
hazardous, toxic, or dangerous under Applicable Environmental Law
(defined below), and any petroleum products.
11.5 For purposes of this Lease, the
term “Applicable Environmental Law” shall include, but
not be limited to, the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42 U.S.C.
§§ 9601 et seq .; the Resource Conservation and
Recovery Act (“RCRA”), 42, U.S.C. §§ 6901
et seq .; the Federal Water Pollution Control Act, 33 U.S.C.
§§ 1251 et seq .; the Clean Air Act, 42 U.S.C.
§§ 7401 et seq .; the Hazardous Materials
Transportation Act, 49 U.S.C. §§ 1471 et seq .;
the Toxic Substances Control Act, 15 U.S.C. §§ 2601
through 2619; the Safe Drinking Water Act, 42 U.S.C. §§
300f through 300j; as they have been amended from time to time, and
their concomitant regulations; and any similar state and local laws
and ordinances and the regulations implementing such
statutes.
7
11.6 Tenant has delivered to
Landlord an additional Phase II Environmental Assessment (the
“Additional Report” ) from BB&L, dated January
, 2004 at Landlord’s expense
(such reimbursement to Tenant shall not exceed $50,000). Landlord
and Tenant acknowledge and agree that the environmental condition
of the Premises, as provided in the Additional Report, has
established the base line of existing environmental conditions
located at the Premises. Tenant shall promptly deliver copies of
any updates of the Additional Report to Landlord, without cost or
expense to Landlord.
11.7 On or before August 1,
2005, Landlord shall provide to Tenant a 10-year pollution
liability insurance policy, reasonably acceptable to Tenant, with
coverage commencing on August 1, 2005 issued by an insurer
reasonably acceptable to Tenant, with $10,000,000 coverage limits.
If Tenant extends or renews the Term of this Lease pursuant to any
right contained herein, Landlord shall, at its sole cost and
expense, obtain a similar pollution liability insurance policy for
the renewal or extension term, provided that the policy can be
renewed at substantially the same rate.
12.1. Fire and Extended
Coverage . Landlord shall, at all times during the Term, obtain
and keep in force hazard insurance on the building in which the
Premises are situated, in amounts not less than one hundred percent
(100%) of the replacement cost of the building and the
improvements (excluding footings and foundations). Tenant agrees,
in addition to the provisions of Section 11, that it shall not
do anything to cause Landlord’s insurance against loss by
fire or such other hazards as are covered and protected against
under policies of insurance commonly referred to and known as
“all risk coverage” or “designated risk,”
as well as public liability insurance, to be cancelled or that will
prevent Landlord from procuring same in acceptable companies and at
standard rates. Tenant shall further do everything reasonably
possible and consistent with the conduct of Tenant’s business
to enable Landlord to obtain the lowest possible rates for
insurance on the Premises. “Insurance Costs” means all
insurance premiums payable by Landlord in order to procure and
maintain in force fire and extended coverage insurance with
vandalism, malicious mischief, earthquake and sprinkler damage
endorsements, liability insurance, rent loss insurance, plate glass
insurance and such other insurance as may be required pursuant to
the foregoing provisions, or deemed advisable by Landlord in
connection with its ownership and operation of the building or
complex of which the Premises are a part, all with such reasonable
limits of coverage as Landlord may deem advisable. Tenant shall pay
to Landlord, as an Operating Expense, the Insurance
Costs.
12.2. Liability Insurance and
Indemnification of Landlord . Landlord and Porter shall not be
liable to Tenant for and Tenant does hereby release Landlord,
Porter and their respective agents and employees from liability for
any injury, loss or damages to Tenant or to any other person or
property occurring upon the Premises or the approaches thereto or
the parking facilities in or adjacent thereto from any cause,
except Landlord’s negligence or willful misconduct. Tenant
agrees to indemnify and save Landlord, Porter and their respective
agents and employees harmless against and from any and all
liability, damages, expenses, including reasonable attorneys’
fees, claims and demands of every kind, that may be brought against
Landlord, for or on account of any damages, loss or injury to
persons or property in or about the Premises during the Term unless
caused by the negligence or willful misconduct of Landlord, its
agents, employees or contractors. The foregoing indemnification
shall survive the expiration or earlier termination of this Lease.
Tenant also covenants and agrees, at its own expense, to maintain
on all its personal property, a policy of property insurance on an
all-risk form under blanket policies consistent with common,
prudent industry practice, coverage written in the
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manner in which Tenant customarily insures
comparable risks. Tenant further agrees to carry, at its own
expense, at all times, during the Term, commercial general
liability insurance with a financially responsible insurance
company, a bodily injury and property damage combined single limit
policy of at least $3,000,000 per occurrence and
$10,000,000 aggregate. All such policies maintained by Tenant
for liability arising out of Tenant’s use and occupancy of
the Premises but excluding Landlord’s repair and maintenance
obligations, shall name each of Landlord and Porter as additional
parties insured, and shall contain a provision that the
same may not be cancelled or materially modified without giving
Landlord and the Agent at least thirty (30) days’ prior
written notice. In addition, certificates evidencing that such
policies are in effect, shall be delivered to Landlord and Porter
no later than the Commencement Date, and renewals shall be
delivered prior to the expiration or cancellation of any such
policy. If Tenant fails to comply with its covenant to maintain
insurance as provided herein, Landlord may, at its option, cause
insurance as aforesaid to be issued and, in such event, Tenant
shall pay promptly when due the premiums for such insurance as
additional rent hereunder. Prior to procuring such insurance,
Landlord shall provide Tenant with five (5) days written
notice of Landlord’s intent sent by U.S. registered or
certified mail or by an independent overnight courier
service.
12.3 Liability and
Indemnification of Tenant . Tenant shall not be liable to
Landlord and/or Porter (in all cases) for, and Landlord hereby
releases Tenant from liability for any injury, loss or damages to
Landlord or to any other person or property occurring upon the
Premises or the approaches thereto or the parking facilities in or
adjacent thereto from any cause, except for Tenant’s
negligence or willful misconduct. Landlord agrees to indemnify and
save Tenant harmless against and from any and all liability,
damages, expenses, including reasonable attorneys’ fees,
claims and demands of every kind that may be brought against it,
for or on account of any damages, loss or injury to persons or
property in or about the Premises during the Term, unless caused by
the negligence or willful misconduct of Tenant, its agents,
employees or contractors. The foregoing indemnification shall
survive the expiration or earlier termination of this Lease.
Landlord also covenants and agrees to carry at all times during the
Term, commercial general liability insurance with a financially
responsible insurance company , a bodily injury and property damage
combined single limit policy of at least $3,000,000 per
occurrence, with $10,000,000 aggregate. Such policy
shall name each of Tenant, Landlord and Porter as a party insured,
as their interests may appear , and shall contain a
provision that the same may not be cancelled or materially modified
without giving Tenant at least thirty (30) days prior written
notice. In addition, certificates evidencing that such policies are
in effect shall be delivered to Tenant no later than the
Commencement Date, and renewals shall be delivered prior to the
expiration or cancellation of any such policy. If Landlord fails to
comply with this covenant to maintain insurance as provided herein,
Tenant may, at its option, cause insurance as aforesaid to be
issued and, in such event, such expenses shall not be included
within the Operating Expenses for the year in which such premiums
are paid by Tenant. Prior to procuring such insurance, /Tenant
shall provide Landlord with five (5) days written notice of
Tenant’s intent sent by U.S. registered or certified mail or
by an independent overnight courier service.
12.4 Waiver of Subrogation .
Each party hereto, and anyone claiming through or under them by way
of subrogation, waives and releases any cause of action it might
have against the other party and Porter and their respective
employees, officers, members, partners, trustees and agents, on
account of any loss or damage that is insured against under any
insurance policy required to be obtained hereunder (to the extent
that such loss or damage is recoverable under such Insurance
policy) that covers the Premises, Landlord’s or
Tenant’s fixtures, personal property, leasehold improvements
or business and which names Landlord and
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Porter or Tenant, as the case may be, as a party
insured. Each party hereto agrees that it will cause its insurance
carrier to endorse all applicable policies waiving the
carrier’s right of recovery under subrogation or otherwise
against the other party. During any period while such waiver of
right of recovery is in effect, each party shall look solely to the
proceeds of such policies for compensation for loss, to the extent
such proceeds are paid under such policies.
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13.
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Permits
– Compliance with Laws.
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13.1. Permits . Tenant shall,
at its own expense, promptly obtain from the appropriate
governmental authorities any and all permits, licenses and the like
required to permit Tenant to occupy the Premises for the purposes
herein stated, except for any permits that Landlord is required to
obtain in order to satisfy Landlord’s obligations under the
Work Letter. This requirement shall not relieve Tenant of its
liability for rent from the Commencement Date.
13.2. Compliance with Laws .
Tenant shall promptly comply with all statutes, laws, ordinances,
orders, rules, regulations and requirements of the federal, state
and local governments and of the Board of Fire Underwriters,
affecting the Premises or applicable to the use of the Premises,
whether material or incidental to such use, and shall be
responsible for the correction, prevention and abatement of
nuisances or violations in, upon or connected with the Premises
during the Term. Tenant shall also promptly comply with all changes
in such statutes, laws, ordinances, orders, rules, regulations and
requirements. Tenant shall bear the full cost and risk of all such
compliance, including the cost of any alterations, additions, or
improvements required by such statutes, laws, ordinances, orders,
rules, regulations and requirements, whether or not structural in
nature. Tenant shall bear full responsibility and liability for any
failure of the Premises to so comply. To the extent that any
alterations, additions, changes or improvements are required by
such statutes, laws, ordi