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LEASE AGREEMENT BY AND BETWEEN LANDLORD: HOUSTON 1031 LIMITED PARTNERSHIP an Illinois limited partnership

Lease Agreement

LEASE AGREEMENT BY AND BETWEEN LANDLORD: HOUSTON 1031 LIMITED PARTNERSHIP an Illinois limited partnership | Document Parties: FMC TECHNOLOGIES, INC | HOUSTON 1031 LIMITED PARTNERSHIP | Inland Real Estate Exchange Corporation You are currently viewing:
This Lease Agreement involves

FMC TECHNOLOGIES, INC | HOUSTON 1031 LIMITED PARTNERSHIP | Inland Real Estate Exchange Corporation

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Title: LEASE AGREEMENT BY AND BETWEEN LANDLORD: HOUSTON 1031 LIMITED PARTNERSHIP an Illinois limited partnership
Date: 3/23/2007
Industry: Oil Well Services and Equipment     Sector: Energy

LEASE AGREEMENT BY AND BETWEEN LANDLORD: HOUSTON 1031 LIMITED PARTNERSHIP an Illinois limited partnership, Parties: fmc technologies  inc , houston 1031 limited partnership , inland real estate exchange corporation
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Exhibit 10.16

LEASE AGREEMENT

BY AND BETWEEN

LANDLORD: HOUSTON 1031 LIMITED PARTNERSHIP

an Illinois limited partnership

AND

TENANT: FMC TECHNOLOGIES, INC.,

a Delaware corporation

as of March ____, 2007

1

BASIC LEASE INFORMATION

 

 

 

Lease Date:
Tenant:
Address of Tenant:
Houston, Texas 77067
Attention: Treasurer

 

March       , 2007
FMC Technologies, Inc., a Delaware corporation
1803 Gears Road

 

 

 

with a copy to:

 

 

 

 

 

FMC Technologies, Inc.
1803 Gears Road
Houston, Texas 77067
Attention: General Counsel
Landlord:
Address of Landlord:
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: G. Joseph Cosenza

 





Houston 1031 Limited Partnership, an Illinois limited partnership.
c/o Inland Real Estate Exchange Corporation.


 

 

 

with a copy to:

 

 

 

 

 

Inland Real Estate Group, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: General Counsel
Premises:
Lease Term:
Base Rent:
Additional Rent:
Rent:
Rent Commencement Date:
Rentable Area:
Affiliate:
Tenant Parties:
TI Allowance:
De Minimis Amounts:
Environmental Laws:

 





Approximately 38.199 acres of Land, as more particularly described on Exhibit “A” attached
hereto and made a part hereof (the “Land”), together with office and industrial buildings
located thereon which buildings have street addresses of 1777 and 1803 Gears Road, Houston,
Harris County, Texas (collectively, the “Building”), and all other improvements attached to
the Land.
That period of time commencing on the Lease Date (the “Commencement Date”) and expiring on
March 31, 2022, together with all renewals exercised and entered into in accordance with the
terms of Rider 1 attached to this Lease.
As set forth on the Schedule of Base Rent which is attached hereto as Exhibit “C” and made a
part hereof.
All sums of money, however described, which Tenant becomes obligated to pay to Landlord
pursuant to the terms of this Lease, other than Base Rent.
All Base Rent and Additional Rent.
March       , 2007.
The square footage contained in the Building which Landlord and Tenant hereby stipulate, for
all purposes, to be 205,950 square feet of office space and 256,767 square feet of
industrial space. Notwithstanding that either Landlord or Tenant may hereafter cause the
Building to be measured, and thereby determine that the Rentable Area of the Building is more
or less than 205,950 square feet of office space and 256,767 square feet of
industrial space, it is agreed that the Rentable Area shall, for all purposes of this Lease,
continue to be the stipulated size of 205,950 square feet of office space and
256,767 square feet of industrial space and that this Lease shall not be changed or amended
as a result of such measurement.
Any person or entity directly or indirectly, through one or more intermediaries, which
controls, is controlled by or under common control with Tenant; and the term “control” shall
mean (i) with respect to a corporation, the right to exercise, directly or indirectly, more
than 10% of the voting rights attributable to the shares of the controlled corporation, and
(ii) with respect to the person or entity that is not a corporation, the possession, directly
or indirectly, of the power to direct or cause the direction of the management or policies of
the controlled person or entity.
Tenant, together with its Affiliates, employees, agents, contractors and invitees.
The sum of $4,670,000.00 which Landlord will make available to Tenant, in accordance with the
provision of this Lease, for the purposes of making improvements to the Premises.
Refers to chemicals and products containing Hazardous Materials in quantities customary and
necessary for the intended use of the Premises including but not limited to cleaning
supplies, petroleum products, insecticides, paints, paint removers, toner for copiers, etc.
provided the use, storing or handling of such De Minimis Amounts of Hazardous Materials are
in compliance with Environmental Laws.
Any federal, state or local law, statute, ordinance or regulation, whether now or hereafter
in effect, pertaining to health, industrial hygiene or the environmental conditions on, under
or about the Mortgaged Property, including the following, as now or hereafter amended:

Hazardous Substances:

 

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”),
42 U.S.C. § 9601 et seq.; Resource, Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901
et seq. as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”),
Pub. L. 99-499, 100 Stat. 1613; the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601
et seq.; Emergency Planning and Community Right to Know Act of 1986 (“EPCRA”), 42 U.S.C.
§ 11001 et seq.; Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq.; Federal Water Pollution
Control Act (“FWPCA”), 33 U.S.C. § 1251 et seq.; and any corresponding state laws or
ordinances including the Texas Water Code (“TWC”) § 26.001 et seq; Texas Health & Safety Code
(“THSC”) § 361.001 et seq.; and regulations, rules, guidelines or standards promulgated
pursuant to such laws, statutes and regulations, as such statutes, regulations, rules,
guidelines and standards are amended from time to time.
Any substance, product, waste or other material which is or becomes listed, regulated or
addressed as being a toxic, hazardous, polluting or similarly harmful substance under any
Environmental Law, including: (i) any substance included within the definition of “hazardous
waste” pursuant to Section 1004 of RCRA; (ii) any substance included within the definition of
“hazardous substance” pursuant to Section 101 of CERCLA; (iii) any substance included within
(a) the definition of “regulated substance” pursuant to Section 26.342(11) of TWC; or (b) the
definition of “hazardous substance” pursuant to Section 361.003(11) of THSC; (iv) asbestos;
(v) polychlorinated biphenyls; (vi) petroleum products, (vii) underground storage tanks,
(viii) any radioactive materials, urea formaldehyde foam insulation or radon; (ix) any
substance included within the definition of “waste” pursuant to Section 30.003(b) of TWC or
“pollutant” pursuant to Section 26.001(13) of TWC; and (x) any other chemical, material or
substance, the exposure to which is prohibited, limited or regulated by any governmental
authority having jurisdiction over the Premises on the basis that such chemical, material or
substance is toxic, hazardous or harmful to human health or the environment.

The foregoing Basic Lease Information and definitions are hereby incorporated into and made a part of the lease identified hereinabove. Each reference in the lease to any of the information and definitions set forth in the Basic Lease Information shall mean and refer to the information and definitions hereinabove set forth and shall be used in conjunction with and limited by all references thereto in the provisions of the lease. In the event of any conflict between any Basic Lease Information and the lease, the lease shall control.

2

TABLE OF CONTENTS

Page

1. DEFINITIONS AND BASIC PROVISIONS
2. LEASE GRANT
3. RENT
4. NO LANDLORD OBLIGATIONS.
5. TENANT’S MAINTENANCE, REPAIR AND REPLACEMENT OBLIGATION
6. TENANT’S UTILITY AND PERMIT OBLIGATIONS
7. TENANT’S TAX OBLIGATIONS
8. TENANT’S INSURANCE OBLIGATIONS
9. CONSTRUCTION ON THE PREMISES
10. USE; ENVIRONMENTAL; REDELIVERY
11. ASSIGNMENT AND SUBLETTING
12. INDEMNITY
13. SUBORDINATION
14. INSPECTION
15. CONDEMNATION
16. FIRE OR OTHER CASUALTY
17. HOLDING OVER
18. USE OF ROOF
19. EVENTS OF DEFAULT
20. REMEDIES
21. SURRENDER OF PREMISES
22. ATTORNEYS’ FEES
23. MECHANICS’ LIENS
24. WAIVER OF SUBROGATION
25. SIGNAGE
26. BROKERAGE
27. ESTOPPEL CERTIFICATES
28. NOTICES
29. SEVERABILITY
30. AMENDMENTS; BINDING EFFECT
31. QUIET ENJOYMENT
32. GENDER
33. JOINT AND SEVERAL LIABILITY
34. PERSONAL LIABILITY
35. NOTICE TO LENDER
36. CAPTIONS
37. MISCELLANEOUS
38. EXHIBITS AND ATTACHMENTS
39. INDEMNITY OBLIGATIONS
40. NET LEASE

3

THIS LEASE AGREEMENT (“Lease”) is entered into as of the Lease Date by and between Landlord and Tenant.

W I T N E S S E T H:

1. DEFINITIONS AND BASIC PROVISIONS

The definitions and basic provisions set forth in the Basic Lease Information (the “ Basic Lease Information ”) executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes and shall be used in conjunction with and limited by the references thereto in the provisions of this Lease. In the event of any conflict, the provisions of this Lease shall control.

2. LEASE GRANT

a. In consideration of the Rent to be paid, the other covenants and agreements to be performed by Tenant, and upon the terms hereinafter stated, Landlord does hereby lease, demise and let unto Tenant the Premises, commencing on the Commencement Date and ending on the last day of the Lease Term, unless the same is extended or earlier terminated as herein provided.

b. Tenant shall be deemed to have accepted the Premises as suitable for the purpose herein intended and subject to all legal requirements and title exceptions of record as of the date hereof. Tenant accepts the Premises in “AS IS — WHERE IS” condition without any representations or warranties from Landlord. Accordingly, Tenant hereby waives any implied or express warranties of habitability, suitability, merchantability, quality, condition or fitness for a particular purpose with respect to the Premises. Tenant has inspected the Premises to the degree it deemed necessary and desirable and is thoroughly familiar with its condition. Tenant hereby accepts the Premises as being in good and satisfactory condition and suitable for their intended commercial purpose.

3. RENT

In consideration of this Lease, Tenant promises and agrees to pay Landlord the Base Rent, without demand, deduction or set off, in advance, on or before the first day of each month of the Lease Term, and all extensions thereof, commencing on the Rent Commencement Date. Base Rent for the period from the Rent Commencement Date through March 31, 2007 shall be prorated at a daily rate of $11,182.80. The first such monthly installment of Base Rent shall be payable by Tenant to Landlord contemporaneously with the execution of this Lease, continuing thereafter on or before the first day of each calendar month during the Lease Term, as the same may be extended. In the event any installment of Base Rent is not received within five (5) days after the due date thereof (without in any way implying Landlord’s consent to such late payment), Tenant, to the extent permitted by law, agrees to pay, in addition to said installment of Base Rent, a late payment charge equal to six percent (6%) of the late installment of Base Rent, it being understood that said late payment charge shall constitute liquidated damages (but shall not void the occurrence of an Event of Default or eliminate any of Landlord’s remedies therefor) and shall be for the purposes of reimbursing Landlord for the additional costs and expenses which Landlord presently expects to incur in connection with the handling and processing of a late installment payment of Base Rent. Tenant and Landlord agree that the damages suffered by Landlord in the event of any such late payments are not capable of being ascertained precisely, and that the foregoing amount constitutes a reasonable and good faith estimate by the parties of the extent of such damages. Notwithstanding the foregoing, such late charges shall not apply to any Additional Rent which becomes due and owing by Tenant to Landlord pursuant to the provisions of this Lease. Any Rent which is not paid by the fifth (5 th ) day after the same is due shall bear interest from and after such fifth (5 th ) day after the same is due, which interest Tenant hereby agrees to pay to Landlord, at the lesser of eighteen percent (18%) per annum or the maximum rate of interest permitted by law to be charged Tenant for the use or forbearance of such money (the Default Rate”) . Notwithstanding anything in this Lease to the contrary, all amounts payable by Tenant to Landlord as Rent shall constitute rent for the purpose of Section 502(b)(7), as it may be amended, of the Federal Bankruptcy Code, 11 U.S.C. §§ 101 et seq . (the “ Bankruptcy Code ”).

4. NO LANDLORD OBLIGATIONS.

THIS IS A COMPLETELY NET LEASE AND IT IS UNDERSTOOD AND AGREED THAT LANDLORD SHALL HAVE ABSOLUTELY NO OBLIGATIONS TO REPAIR, REPLACE OR MAINTAIN ALL OR ANY PORTION OF THE PREMISES. LANDLORD SHALL HAVE ABSOLUTELY NO OBLIGATION TO PAY ANY COSTS OR EXPENSES, OF ANY DESCRIPTION, ASSOCIATED WITH THE OPERATIONS OF THE PREMISES. ALL OF THE FOREGOING REPAIRS, REPLACEMENTS, MAINTENANCE, COSTS AND EXPENSES ARE TO BE MADE OR BORNE BY TENANT AS ITS SOLE RESPONSIBILITY AND AT ITS SOLE COST AND EXPENSE.

5. TENANT’S MAINTENANCE, REPAIR AND REPLACEMENT OBLIGATION

a. Commencing on the Commencement Date, Tenant shall, at its sole cost and expense, without any limitations, keep and maintain all parts of the Premises in good working condition, promptly making all necessary repairs and replacements, structural and non-structural, interior and exterior, ordinary and extraordinary, including but not limited to, the roof of the Building, the foundation of the Building, the structural columns and exterior walls of the Building, windows, glass and plate glass, doors, and any special office entries, walls and finish work, floors and floor covering, mold and mildew control, electrical cabling and fixtures, data and telephone cabling and fixtures, heating and air conditioning systems, plumbing lines and fixtures, electrical lines and fixtures, janitorial and porter services, downspouts, gutters, dock boards, irrigation system, paving, pest extermination, exterior lighting fixtures, regular removal of trash and debris, regular mowing of any grass, trimming, weed removal, landscape replacement and general landscape maintenance, and keeping the parking areas, driveways, alleys and the whole of the Premises in good working condition and in an attractive, clean, safe and sanitary condition. Landlord hereby grants to Tenant a license to utilize the benefits of any and all warranties or guaranties held by Landlord with regard to any component of the Premises. Tenant may seek to directly enforce all such warranties and guaranties in its own name or in the name of Landlord.

b. If Tenant should fail to perform any of its obligations hereunder with respect to maintenance, repairs or replacements, then Landlord may, if it so elects but expressly without any obligation to do so, following the expiration of any applicable notice and cure period, in addition to any other remedies provided herein, effect same. Any out-of-pocket sums expended by Landlord in effecting such maintenance, repairs or replacements shall be deemed to be Additional Rent owing by Tenant to Landlord and shall be due and payable, on demand, together with interest thereon at the Default Rate from the date of each such expenditure by Landlord to the date of repayment by Tenant.

c. Upon the execution of this Lease Landlord will make the proceeds of the TI Allowance available to Tenant pursuant to the terms of an escrow agreement entered into among Landlord, Tenant and an escrow agent. Such escrow agreement shall terminate, in accordance with its terms, on or before June 30, 2008, and Landlord shall have no obligations to Tenant with regard to any improvements to the Premises other than the funding of the TI Allowance to the escrow agent pursuant to the terms of such escrow agreement.

6. TENANT’S UTILITY AND PERMIT OBLIGATIONS

a. Commencing on the Rent Commencement Date and continuing throughout the Lease Term, Tenant shall, at its sole cost and expense, obtain and pay for all water, gas, electricity, telephone, sewer, and sprinkler charges and other utilities and services used on or from the Premises, together with any taxes, penalties, surcharges or the like pertaining thereto and any maintenance charges for utilities and shall furnish and install all electric light bulbs and tubes. Landlord shall in no event be liable for any interruption or failure of any utility services on or to the Premises.

b. Tenant shall, at its sole cost and expense, obtain and keep in force during the Lease Term, and all extensions thereof, all licenses, certificates and permits necessary or desirable for it to use the Premises in accordance with applicable laws and restrictive covenants. Mention is made that Tenant currently (i) holds a storm water discharge permit (the “ Storm Water Permit ”) issued October 29, 2002 and identified as TDES Permit No. 02611 and (ii) is a party to that certain Tax Abatement Agreement For Real Property Located in the FMC Tubing Hangar Reinvestment Zone effective as of January 1, 2007 among Tenant and Harris County (the “ Abatement Agreement ”). Upon the termination of this Lease, if Landlord desires to receive an assignment of the Storm Water Permit, Abatement Agreement, or both, then Tenant agrees that it will assign each to Landlord to the extent that the same are then in effect and the consents necessary to such assignments are then obtained by Landlord.

c. If Tenant should fail to perform any of its obligations hereunder with respect to paying for any utilities or obtaining and maintaining any licenses, certificates or permits, then Landlord may, if it so elects but expressly without any obligation to do so, following the expiration of any applicable notice and cure period, in addition to any other remedies provided herein, make such payments or obtain such licenses, certificates or permits. Any out-of-pocket sums expended by Landlord with respect to any of the foregoing shall be deemed to be Additional Rent owing by Tenant to Landlord and shall be due and payable, on demand, together with interest thereon at the Default Rate from the date of each such expenditure by Landlord to the date of repayment by Tenant.

7. TENANT’S TAX OBLIGATIONS

a. Commencing on the Rent Commencement Date, Tenant agrees to pay, before they become delinquent, all taxes, assessments and governmental charges of any kind and nature whatsoever, general or special, ordinary and extraordinary, foreseen and unforeseen (hereinafter collectively referred to as “ Taxes ”) lawfully levied or assessed against the Premises as well as those assessed against all personal property, furniture, and fixtures of Tenant located on the Premises. Notwithstanding anything herein to the contrary, it is understood and agreed that Taxes shall include those certain taxes imposed against Landlord as a result of Texas House Bill 3 and sometimes hence referred to as the “margin tax” (herein so called) only to the extent that any such margin tax would be payable if the Premises (or revenue from the Premises, as applicable) were the only property (or revenue) of Landlord. Tenant shall furnish to Landlord, not later than fifteen (15) days after the date any such taxes become delinquent, official receipts of the appropriate taxing authority or other evidence satisfactory to Landlord evidencing payment thereof. If Tenant should fail to pay any Taxes required to be paid by Tenant hereunder, in addition to any other remedies provided herein, Landlord may, if it so elects but with no obligation to do so, pay such Taxes. Any out-of-pocket sums expended by Landlord to pay such Taxes (including all penalties, interest and attorneys fees which have accrued due to Tenant’s failure to pay) shall be deemed to be Additional Rent owing by Tenant to Landlord and shall be due and payable, on demand, together with interest thereon at the Default Rate from the date of each such expenditure by Landlord to the date of repayment by Tenant. Taxes for the year in which the Lease Term expires shall be prorated between Landlord and Tenant with Tenant being obligated only for the Taxes which accrued during the Lease Term.

b. If at any time during the Lease Term, and all extensions thereof, the present method of taxation shall be changed so that in lieu of the whole or any part of any Taxes levied, assessed or imposed on Premises, there shall be levied, assessed or imposed on Landlord a capital levy or other tax directly on the Rents received therefrom, then all such taxes, assessments, levies or charges, or the part thereof so measured or based, shall be deemed to be included within the term “Taxes” for the purposes hereof. There shall not be included within the term “Taxes” any income taxes, franchise taxes or other taxes imposed upon the general revenues of Landlord other than the margin tax to the extent set forth in subsection 7.a above.

c. Tenant may, at its sole cost and expense and in its own name or in the name of Landlord, dispute and contest any assessed values and any Taxes by appropriate proceedings diligently conducted in good faith. Tenant shall give written notice to Landlord within ten (10) business days (meaning any day which is not a Saturday, Sunday or holiday on which national banks in Houston, Texas are authorized to be closed) after Tenant elects to dispute and contest any assessed values, and in any event not less than five (5) days prior to any scheduled hearing on such dispute and contest. In the event that Tenant elects, as a result of the pendency of any such protest, to not pay any of the Taxes prior to the date on which same will become delinquent, then Tenant shall, prior to such delinquency date, and if requested by Landlord, deposit with Landlord the amount so contested and unpaid, together with an amount which is estimated by Landlord to be the penalties, interest and attorney’s fees which will be owed if Tenant does not prevail. Landlord may waive the making of such deposit if it receives assurances reasonably satisfactory to Landlord that such Taxes, penalties, interest and attorney’s fees will be paid in the amounts finally adjudicated as being owed. Tenant hereby indemnifies and holds Landlord harmless from any and all costs, damages, or expenses (including but not limited to penalties, interest and attorney’s fees) in connection with any such proceedings.

8. TENANT’S INSURANCE OBLIGATIONS

a. Tenant shall obtain and maintain, at Tenant’s sole cost and expense, on an “all risk” and on an occurrence basis, fire and extended coverage insurance covering the Building and other improvements on the Premises in an amount not less than the “replacement cost” thereof as such term is defined in the Replacement Cost Endorsement to be attached thereto, insuring against the perils of fire, lightning, vandalism, malicious mischief, extended by Special Extended Coverage Endorsement to insure against loss of rental for a period of twenty-four (24) months and against all other risks of direct physical loss, including flood insurance (to the extent that the top of floor elevation of any Building is located in the 100-year flood zone as designated by the then current FEMA maps), mold insurance (however Tenant may elect, so long as it maintains a Trigger Rating [hereinafter defined] to not carry mold insurance), terrorism insurance (to the extent that such coverage is available on a commercially reasonable basis and with such limits of coverage as may be necessary in order to obtain such coverage on a commercially reasonable basis), windstorm insurance, including coverage for named windstorms and demolition and increased cost of construction insurance, such coverages and endorsements to be reasonably satisfactory to Landlord in form and substance. Such insurance shall be procured from responsible insurance companies which are rated at least “A-XII” by A.M,. Best or “A” by Standard & Poor’s). Such insurance shall name Landlord as an additional insured and shall designate any holder of indebtedness secured by a lien on the Premises as mortgagee and loss payee. Certified certificates of such insurance, and reasonable evidence of payment of premiums therefor, shall be delivered to Landlord prior to the Commencement Date. Not less than thirty (30) days prior to the expiration date of any such policies, certified certificates of the renewals thereof (and reasonable evidence of the payment of renewal premiums) shall be delivered to Landlord. Such policies shall further provide that not less than thirty (30) days written notice shall be given to Landlord before such policy may be cancelled or changed to reduce insurance provided thereby.

b. Tenant shall also procure and maintain throughout the Lease Term, and all extensions thereof, a policy or policies of commercial liability insurance, at its sole cost and expense, insuring both Landlord and Tenant against all claims, demands or actions arising out of or in connection with: (i) the Premises; (ii) the condition of the Building and other improvements located on the Land; (iii) Tenant’s operations in and maintenance and use of the Premises; and (iv) Tenant’s contractual liability under this Lease, the limits of such policy or policies to be in the amount of not less than $6,000,000.00 per occurrence in respect of bodily injury or property damage, including loss of use thereof. All such policies shall be procured by Tenant from responsible insurance companies which are rated at least “A-XII” by A.M,. Best or “A” by Standard & Poor’s). Certified certificates of insurance, and reasonable evidence of payment of premiums therefor shall be delivered to Landlord prior to the Commencement Date of this Lease. Not less than thirty (30) days prior to the expiration date of any such policies, certified certificates of the renewals thereof (and reasonable evidence of the payment of renewal premiums) shall be delivered to Landlord. Such policies shall further provide that not less than thirty (30) days written notice shall be given to Landlord before such policy may be cancelled or changed to reduce insurance provided thereby.

c. In the event Tenant fails to obtain any of such coverages and furnish evidence of same to Landlord prior to the Commencement Date and thereafter at least thirty (30) days prior to each policy expiration date, Landlord shall be permitted, but shall not be obligated, to obtain such coverages. Landlord’s out-of-pocket costs for procuring such insurance shall be deemed to be Additional Rent owing by Tenant to Landlord and shall be due and payable, on demand, together with interest thereon at the Default Rate from the date of such expenditure by Landlord to the date of repayment by Tenant.

d. The term “Trigger Rating” shall mean that Tenant is rated BAA2 by Moody’s Investor Service, BBB by Standard & Poor’s or the equivalent by another rating agency of national recognition. So long as Tenant maintains a Trigger Rating the deductible under the insurance policies maintained by Tenant may be equal to any amount determined by Tenant not to exceed Two Million Dollars ($2,000,000.00) or such greater amounts with respect to specified coverage (such as terrorism and windstorm) as may be required in order for Tenant to obtain such coverage at commercially reasonable rates. During such times as Tenant does not maintain a Trigger Rating then the deductible amount under the insurance policies maintained by Tenant may be equal to any amount determined by Tenant not to exceed Three Hundred Sixty Thousand and No/100 Dollars ($360,000.00) or such greater amounts with respect to specified coverage (such as terrorism and windstorm) as may be required in order for Tenant to obtain such coverage at commercially reasonable rates.

9. CONSTRUCTION ON THE PREMISES

a. Tenant shall, subject to the provisions hereinafter set forth and at its sole cost and expense, be permitted to perform all the construction, alterations, improvements and other work which it desires to perform on the Premises. All construction, alterations, improvements, or other work done by Tenant shall be performed in a good and workmanlike manner and in accordance with all applicable laws, codes, ordinances and restrictive covenants. No construction, alterations, improvements, or other work performed by Tenant shall (i) materially impair the useful life or fair market value of the Premises, (ii) cause Tenant to be in breach of this Lease, (iii) increase the liability of Landlord in any material respect, (iv) reduce the square footage of any Building or (v) weaken the structural integrity of any Building. Prior to commencing any such work Tenant shall obtain all permits, approval and consents required under applicable law or under any restrictive covenants applicable to the Premises. Tenant shall require that the general contractor who performs such construction, alterations, improvements, or other work obtain and furnish to Tenant and Landlord evidence that such general contractor has commercial general liability insurance with limits reasonable for the scope of work being preformed and which names Landlord and Tenant as additional insured.

b. All construction, alterations, improvements, or other work done by Tenant on or about the Premises, whose costs are projected to be over $1,000,000.00 if Tenant then has a Trigger Rating and whose costs are projected to be over $250,000.00 if Tenant does not then have a Trigger Rating, whenever performed, shall be performed using contractors which have been given Landlord’s prior written approval and in accordance with plans and specifications which have been approved by Landlord, in writing, prior to the commencement of any such work. Landlord will not unreasonably withhold, condition or delay its approval of such contractors, plans or specifications. In the event Tenant does not then have a Trigger Rating and the costs are projected to be over $250,000.00 Landlord may require that Tenant provide Landlord with reasonably satisfactory assurances that Tenant has the necessary funding to complete the proposed construction, alterations, improvements, or other work.

c. Within thirty (30) days after the completion of each project involving construction, alterations, improvements or other work, which requires Landlord’s approval, Tenant shall deliver to Landlord one set of fully corrected and documented “as-built” plans and specifications together with a C.A.D. disk of such “as-built” plans.

d. Landlord shall be permitted, if its desires to do so and at its sole cost and expense, to observe and inspect all construction, alterations, improvements, or other work done by Tenant to assure itself that the same is being performed in accordance with the requirements of all applicable laws, codes, ordinances and restrictive covenants. Such supervision and inspection, if done, shall be solely for the benefit of Landlord and Tenant shall not be entitled to rely on same. Landlord shall not be obligated or required to, but may if it chooses to, inform Tenant as to its conclusions following any such supervision or inspection, even if its has concluded that Tenant is in violation of the terms of this Lease.

10. USE; ENVIRONMENTAL; REDELIVERY

a. Tenant shall use the Premises only for lawful uses and in compliance with Environmental Laws. Tenant will not occupy or use the Premises, or permit any portion of the Premises to be occupied or used for any use or purpose which is unlawful, which violates any applicable restrictive covenants or which is in any manner extra hazardous on account of fire or other hazard. Tenant shall occupy and use the Premises in a manner which complies with all applicable restrictive covenants, easements and other encumbrances of record with affect the Premises as of the date of this Lease and which are hereinafter made applicable to the Premises by any governmental authority or by any private party with the consent of Landlord and Tenant.

b. At the expiration or earlier termination of this Lease, Tenant shall deliver possession of the Premises to Landlord with all improvements located thereon (except as otherwise herein provided) in good repair and condition, reasonable wear and tear excepted, and shall deliver to Landlord all keys to the Building. The phrase “reasonable wear and tear excepted” is not intended to eliminate or reduce Tenant’s obligation to deliver the Premises to Landlord in good repair and condition upon the expiration or earlier termination of the Lease, but is intended to clarify that Tenant is not required to replace any aging improvements with new improvements, so long as such aging improvements are functioning and operable and Tenant would not have then replaced such aging improvements with new improvements in the ordinary course of its business if it was continuing its business operations at the Premises. The cost and expense of any repairs necessary to restore the condition of the Premises to said condition in which they are to be delivered to Landlord shall be borne by Tenant. All alterations, additions or


 
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