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
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BASIC LEASE
INFORMATION
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Lease Date:
Tenant:
Address of Tenant:
Houston, Texas 77067
Attention: Treasurer
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March
, 2007
FMC Technologies, Inc., a Delaware corporation
1803 Gears Road
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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
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Houston 1031 Limited Partnership, an Illinois limited
partnership.
c/o Inland Real Estate Exchange Corporation.
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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:
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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:
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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.
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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.
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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
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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