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OFFICE BUILDING LEASE
by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
as Landlord,
and
TRACTOR SUPPLY COMPANY,
as Tenant
FINANCIAL PLAZA
200 POWELL PLACE
BRENTWOOD, TENNESSEE
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TABLE OF CONTENTS
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SCHEDULE..........................................................................................................1
1.
DEMISE AND
TERM..........................................................................................2
2.
RENT.....................................................................................................3
A.
Definitions.....................................................................................3
B.
Components of
Rent..............................................................................4
C.
Payment of
Rent.................................................................................5
3. USE
................................................................................................6
4.
CONDITION OF
BUILDING....................................................................................6
5.
BUILDING
SERVICES........................................................................................7
A.
Basic
Services..................................................................................7
B.
Electricity.....................................................................................7
C.
Telephones......................................................................................7
D.
Additional
Services.............................................................................8
E.
Failure or Delay in Furnishing
Services.........................................................8
6.
RULES AND
REGULATIONS....................................................................................8
7.
CERTAIN RIGHTS RESERVED TO
LANDLORD......................................................................8
8.
MAINTENANCE AND
REPAIRS..................................................................................9
9.
ALTERATIONS..............................................................................................9
A.
Requirements....................................................................................9
B.
Liens..........................................................................................10
10.
INSURANCE...............................................................................................11
A.
Tenant's
Insurance.............................................................................11
B.
Landlord's
Insurance...........................................................................11
C. Risk
of
Loss...................................................................................12
11.
INDEMNIFICATION/HOLD
HARMLESS...........................................................................12
12. FIRE OR
OTHER
CASUALTY..................................................................................12
A.
Destruction of the
Building....................................................................12
B.
Damage to the
Building.........................................................................12
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13.
CONDEMNATION............................................................................................14
14. ASSIGNMENT
AND
SUBLETTING...............................................................................14
A.
Landlord's
Consent.............................................................................14
B.
Standards for
Consent..........................................................................15
C.
Recapture......................................................................................15
D.
Assignment or Sublet to
Successor..............................................................16
15.
SURRENDER...............................................................................................16
16. DEFAULTS
AND
REMEDIES...................................................................................16
A.
Default........................................................................................16
B.
Right of
Re-Entry..............................................................................17
C.
Termination of Right to
Possession.............................................................17
D.
Termination of
Lease...........................................................................17
E.
Other
Remedies.................................................................................17
F.
Bankruptcy.....................................................................................18
G.
Waiver of Trial by
Jury........................................................................18
H.
Venue..........................................................................................18
17. HOLDING
OVER............................................................................................18
18.
[INTENTIONALLY
OMITTED].................................................................................18
19.
[INTENTIONALLY
OMITTED].................................................................................18
20. ESTOPPEL
CERTIFICATE....................................................................................18
21.
SUBORDINATION...........................................................................................19
22. QUIET
ENJOYMENT.........................................................................................19
23. BROKER
19
24. NOTICES
20
25.
MISCELLANEOUS...........................................................................................20
A.
Successors and
Assigns.........................................................................20
B.
Entire
Agreement...............................................................................20
C. Time
of
Essence................................................................................21
D.
Execution and
Delivery.........................................................................21
E.
Severability...................................................................................21
F.
Governing
Law..................................................................................21
G.
Attorneys'
Fees................................................................................21
H.
[intentionally
omitted]........................................................................21
I.
Joint and Several
Liability....................................................................21
J.
Force
Majeure..................................................................................21
K.
Captions.......................................................................................21
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L. No
Waiver......................................................................................21
M.
ERISA..........................................................................................22
N.
Limitation of
Liability........................................................................22
O.
Signage........................................................................................22
P.
Sensation of
Business..........................................................................23
26. SPECIALTY
EQUIPMENT.....................................................................................23
27. RIGHT TO
TERMINATE......................................................................................24
28. OPTIONS TO
EXTEND.......................................................................................25
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OFFICE BUILDING LEASE
---------------------
THIS OFFICE BUILDING LEASE ("Lease") is made as of the 22 day of
January, 2004, between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a
New Jersey corporation ("LANDLORD"), and TRACTOR SUPPLY
COMPANY, a Delaware corporation ("TENANT"),
for the building commonly known as Financial Plaza located
at 200 Powell Place, Brentwood, Tennessee
(such building, together with the land upon which it is
situated and common areas, including
sidewalks, parking areas and landscaped areas, being herein
referred to as the "BUILDING"). The
following schedule (the "SCHEDULE") sets forth certain basic
terms
of this Lease:
SCHEDULE
1.
Commencement Date:
the earlier to occur of (a) July 1, 2004, (b) the date
the Work (as defined in the Workletter attached hereto as
Exhibit A (the "WORKLETTER")) is substantially completed
(as defined in the Workletter) and (c) the date Tenant
first occupies the Building for the conduct of business
2. Expiration
Date:
the day before the eighth (8th) anniversary of the
Commencement Date
3. Rentable
Square Feet of the Building: approximately 98,049
square feet
4. Base
Rent:
==================================================
====================== =======================
MONTHLY
ANNUAL
PERIOD
BASE RENT
BASE RENT
--------------------------------------------------
---------------------- -----------------------
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From the Commencement Date to the day before the
$132,774.69
$1,593,296.28
1st anniversary of the Commencement Date*
--------------------------------------------------
---------------------- -----------------------
From the 1st anniversary of the Commencement Date
to the day before the 2nd anniversary of the
Commencement Date
$135,430.18
$1,625,162.16
--------------------------------------------------
---------------------- -----------------------
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MONTHLY
ANNUAL
PERIOD
BASE RENT
BASE RENT
--------------------------------------------------
---------------------- -----------------------
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From the 2nd anniversary of the Commencement
Date to the day before the 3rd anniversary of
$138,138.78
$1,657,665.36
the Commencement Date
--------------------------------------------------
---------------------- -----------------------
From the 3rd anniversary of the Commencement
Date to the day before the 4th anniversary of
$140,901.56
$1,690,818.72
the Commencement Date
--------------------------------------------------
---------------------- -----------------------
From the 4th anniversary of the Commencement
Date to the day before the 5th anniversary of
$143,719.59
$1,724,635.08
the Commencement Date
--------------------------------------------------
---------------------- -----------------------
From the 5th anniversary of the Commencement
Date to the day before
the 6th anniversary of
$146,593.98
$1,759,127.76
the Commencement Date
--------------------------------------------------
---------------------- -----------------------
From the 6th anniversary of the Commencement
Date to the day before the 7th anniversary of
$149,525.85
$1,794,310.32
the Commencement Date
--------------------------------------------------
---------------------- -----------------------
From the 7th anniversary of the Commencement
Date to the Expiration Date
$152,516.38
$1,830,196.56
==================================================
====================== =======================
5. Base Year:
2004
6. Brokers:
Colliers Turley Martin Tucker and Eakin Partners
1. DEMISE AND
TERM. Landlord leases to Tenant and Tenant leases from Landlord the
Building,
subject to the covenants and conditions set
forth in this Lease, for a term (the "TERM") commencing on
the date (the "COMMENCEMENT DATE")
described in Item 1 of the Schedule and expiring on the date
(the
"EXPIRATION DATE") described in Item 2 of
the Schedule, unless extended or terminated earlier as
otherwise provided in this Lease.
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2. RENT.
A.
DEFINITIONS. For purposes of this Lease, the following terms
shall have the following meanings:
(i)
"BASE YEAR" shall mean the year set forth in Item 2 of
the Schedule. Landlord and Tenant acknowledge that Tenant will not
be
occupying the Building for the entire Base Year and,
accordingly,
certain Expenses will not be incurred for the entire Base Year.
Accordingly, Landlord and Tenant agree to make an appropriate
adjustment
of Expenses for the Base Year which vary with the period and level
of
occupancy to reflect a fully occupied Building for the entire Base
Year.
(ii)
"EXPENSES" shall mean all expenses, costs and
disbursements (other than Taxes) paid or incurred by Landlord
in
connection with the ownership, management, maintenance,
operation,
replacement and repair of the Building, including exterior common
areas.
Expenses shall not include: (a) costs of tenant alterations; (b)
costs
of capital improvements (except for costs of any capital
improvements
(1) made or installed (or service agreement or lease entered into)
for
the purpose of reducing Expenses or improving the operating
efficiency
of any system within the Building (provided, however, that such
costs
shall not exceed the reduction in expenses attributable to such
capital
improvements, service agreement or lease) or (2) made or
installed
pursuant to governmental requirement or insurance requirement,
which
costs shall be amortized by Landlord in accordance with sound
accounting
and management principles); (c) interest and principal payments
on
mortgages (except interest on the cost of any capital improvements
for
which amortization may be included in the definition of Expenses)
or any
rental payments on any ground leases (except for rental payments
which
constitute reimbursement for Taxes and Expenses); (d)
advertising
expenses and leasing commissions; (e) any cost or expenditure for
which
Landlord is reimbursed, whether by insurance proceeds or
otherwise,
except through Adjustment Rent (hereinafter defined); (f) legal
expenses
of negotiating leases; (g) salaries and fringe benefits of
employees
above the grade of building manager; or (h) depreciation expenses
on any
fixed assets. Expenses shall be determined on a cash or accrual
basis,
as Landlord may elect, based on generally accepted accounting
principles, consistently applied.
(iii) "RENT"
shall mean Base Rent, Adjustment Rent and any
other sums or charges due by Tenant hereunder.
(iv)
"TAXES" shall mean all taxes, assessments and fees
levied upon the Building, the property of Landlord located therein
or
the rents collected therefrom, by any governmental entity based
upon the
ownership, leasing, renting or operation of the Building, including
all
costs and expenses of protesting any such taxes, assessments or
fees.
Taxes shall not include any net income, capital stock,
succession,
transfer, franchise, gift, estate or inheritance taxes;
provided,
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however, if at any time during the Term, a tax or excise on income
is
levied or assessed by any governmental entity, in lieu of or as
a
substitute for, in whole or in part, real estate taxes or other
AD
VALOREM taxes, such tax shall constitute and be included in
Taxes.
(v)
"PRIME RATE" shall mean the highest of the Prime Rates
as reported in the Money Rate Section of the WALL STREET JOURNAL.
If the
WALL STREET JOURNAL no longer publishes the Prime Rate as an
index,
Landlord may substitute a comparable index including the Prime Rate
or
reference rate of a reputable financial institution.
B. COMPONENTS
OF RENT. Tenant agrees to pay the following amounts
to Landlord at the office of the Building
or at such other place as Landlord
designates:
(i)
Base rent ("BASE RENT") to be paid in monthly
installments in the amount set forth in Item 4 of the Schedule
in
advance on or before the first day of each month of the Term,
without
demand, except that Tenant shall pay the first month's Base Rent
upon
execution of this Lease.
Notwithstanding anything in this Lease to the contrary, so long
as Tenant is not in default under this Lease, Tenant shall be
entitled
to an abatement of Base Rent in the amount of $132,774.69 per month
for
the first seven (7) full calendar months of the Term and $17,670.52
per
month for the next five (5) full calendar months of the Term. The
total
amount of Base Rent abated in accordance with the foregoing shall
equal
$1,017,775.43 (the "ABATED BASE RENT"). If Tenant defaults at any
time
during the Term and fails to cure such default within any
applicable
cure period under this Lease and, if as a result of such
uncured
default, Landlord elects to terminate this Lease or terminate
Tenant's
right to possession of the Building as more fully provided under
Section
16.B. below, then all Abated Base Rent shall immediately become due
and
payable. The payment by Tenant of the Abated Base Rent in the event
of a
default shall not limit or affect any of Landlord's other
rights,
pursuant to this Lease or at law or in equity. Only Base Rent shall
be
abated pursuant to this Section, and all Adjustment Rent and other
costs
and charges specified in this Lease shall remain as due and
payable
pursuant to the provisions of this Lease.
(ii)
Adjustment rent ("ADJUSTMENT RENT") in an amount equal
to (a) Expenses for any calendar year which exceed Expenses for the
Base
Year set forth in Item 5 of the Schedule and (b) Taxes for any
calendar
year which exceed Taxes for the Base Year set forth in Item 5 of
the
Schedule. Prior to each calendar year, or as soon as reasonably
possible, Landlord shall estimate and notify Tenant of the amount
of
Adjustment Rent due for such year, and Tenant shall pay
Landlord
one-twelfth of such estimate on the first day of each month during
such
year. Such estimate may be revised by Landlord whenever it
obtains
information relevant to making such estimate more accurate. After
the
end of each calendar year, Landlord shall deliver to Tenant a
report
setting forth the
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actual Expenses and Taxes for such calendar year and a statement of
the
amount of Adjustment Rent that Tenant has paid and is payable for
such
year. Within thirty (30) days after receipt of such report or
reports,
Tenant shall pay to Landlord the amount of Adjustment Rent due for
such
calendar year minus any payments of Adjustment Rent made by Tenant
for
such year, it being acknowledged by Tenant that in the event
Landlord
separately reports actual Expenses and actual Taxes for a calendar
year,
Landlord may reasonably allocate Adjustment Rent paid by Tenant for
such
calendar year between Expenses and Taxes for such calendar year.
If
Tenant's estimated payments of Adjustment Rent exceed the amount
due
Landlord for such calendar year, Landlord shall apply such excess
as a
credit against Tenant's other obligations under this Lease or
promptly
refund such excess to Tenant if the Term has already expired,
provided
Tenant is not then in default hereunder, in either case without
interest
to Tenant.
Notwithstanding the foregoing, for purposes of computing
Adjustment Rent, Controllable Expenses (as hereinafter defined)
shall
not increase by more than 5% per calendar year on a cumulative,
compounding basis over the Term. In other words, Controllable
Expenses
for the calendar year 2005 shall not exceed 105% of the
Controllable
Expenses for the calendar year 2004. Controllable Expenses for
the
calendar year 2006 shall not exceed 105% of the limit on
Controllable
Expenses for the calendar year 2005. "CONTROLLABLE EXPENSES" shall
mean
all Expenses exclusive of the cost of insurance and utilities.
Landlord
and Tenant agree
that Controllable Expenses for the calendar year 2004
shall be deemed to be two times Controllable Expenses paid or
incurred
by Landlord during the period commencing July 1, 2004, and
ending
December 31, 2004.
C. PAYMENT OF
RENT. The following provisions shall govern the
payment of Rent: (i) if this Lease
commences or ends on a day other than the
first day or last day of a calendar year,
respectively, the Rent for the year in
which this Lease so begins or ends shall be
prorated and the monthly
installments shall be adjusted accordingly;
(ii) all Rent shall be paid to
Landlord without offset or deduction, and
the covenant to pay Rent shall be
independent of every other covenant in this
Lease; (iii) any sum due from Tenant
to Landlord which is not paid when due
shall bear interest from the date due
until the date paid at the annual rate of
five percentage (5%) points above the
Prime Rate then in effect, but in no event
higher than the maximum rate
permitted by law (the "DEFAULT RATE"); and,
in addition, Tenant shall pay
Landlord a late charge for any Rent payment
which is paid more than five (5)
days after its due date equal to five
percent (5%) of such payment; provided,
however, that Landlord shall not charge
Tenant such Default Rate or late charge
if Tenant cures such failure to pay any sum
due within five (5) days after
written notice from Landlord of such
delinquency; provided further, however,
that Landlord shall only be obligated to
provide, and Tenant shall only have
such cure period, two (2) times during any
twelve (12) consecutive calendar
month period; (iv) Tenant, or an
independent certified accounting firm retained
by Tenant on an hourly fee basis (and not
on a contingency fee basis), shall
have the right to inspect Landlord's
accounting records relative to Expenses and
Taxes (including Expenses and Taxes for the
Base Year) during normal business
hours at any time within sixty (60) days
following the furnishing
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to Tenant of the annual statement of
Adjustment Rent; and, unless Tenant shall
take written exception to any item in any
such statement within such sixty (60)
day period, such statement shall be
considered as final and accepted by Tenant;
(v) in the event of the termination of this
Lease prior to the determination of
any Adjustment Rent, Tenant's agreement to
pay any such sums and Landlord's
obligation to refund any such sums
(provided Tenant is not in default hereunder)
shall survive the termination of this
Lease; (vi) no adjustment to the Rent by
virtue of the operation of the rent
adjustment provisions in this Lease shall
result in the payment by Tenant in any year
of less than the Base Rent shown on
the Schedule; (vii) each amount owed to
Landlord under this Lease for which the
date of payment is not expressly fixed
shall be due on the same date as the Rent
listed on the statement showing such amount
is due; and (viii) if Landlord fails
to give Tenant an estimate of Adjustment
Rent prior to the beginning of any
calendar year, Tenant shall continue to pay
Adjustment Rent at the rate for the
previous calendar year until Landlord
delivers such estimate, at which time
Tenant shall pay retroactively the
increased amount for all previous months of
such calendar year.
3. USE.
Tenant agrees that it shall occupy and use the Building
only as non-governmental business offices
and for no other purposes. Tenant
shall, at its own cost and expense, comply
with all federal, state and municipal
laws, ordinances, rules and regulations
issued by any governmental authority and
all covenants, conditions and restrictions
of record which relate to the
condition, use or occupancy of the
Building. Without limiting the foregoing,
Tenant shall not cause, nor permit, any
hazardous or toxic substances to be
brought upon, produced, stored, used,
discharged or disposed of in, on or about
the Building without the prior written
consent of Landlord and then only in
compliance with all applicable
environmental laws. Notwithstanding anything
herein to the contrary, Tenant shall have
no obligation or responsibility with
respect to any hazardous or toxic
substances which Tenant or its agents did not
bring upon, produce, store, use, discharge
or dispose of in or about the
Building, except to the extent that Tenant
exacerbates the same or fails to
notify Landlord of the existence of any
such hazardous or toxic substances after
acquiring knowledge thereof. Without
limiting the generality of the effect of
the foregoing, Landlord, and not Tenant,
shall be responsible for remedying
violations of environmental laws, if any,
existing with respect to the Building
as of the date of delivery of the Building
to Tenant and the costs and expenses
of such remediation shall not be included
within Expenses.
4. CONDITION
OF BUILDING. Tenant is taking possession of the
Building in its "as is" condition. No
agreement of Landlord to alter, remodel,
decorate, clean or improve the Building (or
to provide Tenant with any credit or
allowance for the same), and no
representation regarding the condition of the
Building, have been made by or on behalf of
Landlord or relied upon by Tenant,
except as stated in the Workletter attached
hereto as Exhibit A and except that
Landlord shall be responsible for delivery
of the base building heating and
cooling, plumbing and electrical systems
and roof and other general building
structural components to Tenant in working
order at Landlord's expense.
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5. BUILDING
SERVICES.
A. BASIC
SERVICES. So long as Tenant is not in default
hereunder, Landlord shall furnish the
following services: (i) heating,
ventilating and air conditioning ("HVAC")
to provide a temperature condition
required, in Landlord's reasonable
judgment, for comfortable occupancy of the
interior of the Building under normal
business operations, daily from 7:00 A.M.
to 7:00 P.M., plus six (6) hours of HVAC
services on weekends as hereafter
provided, holidays excepted; (ii) water for
drinking, and, subject to Landlord's
approval, water at Tenant's expense for any
private restrooms and office kitchen
requested by Tenant; (iii) men's and
women's restrooms at locations designated
by Landlord; (iv) janitor service,
including replacement of paper products in
restrooms, floor care (including stripping
and waxing, if applicable) at least
twice per year, cleaning of windows on a
reasonably frequent basis and pest
control; (v) maintenance of exterior common
areas of the Building, including
snow removal as necessary and maintenance
of the landscaped areas; and (vi)
automated elevator service 24 hours a day,
7 days a week.
As part of basic services, Tenant may order up to six (6) hours
in the aggregate of HVAC services on each
weekend. A designated employee or
agent of Tenant may order such weekend HVAC
services by providing notice to
Landlord at least three (3) days in advance
of such services.
If Tenant is not satisfied with the janitorial services
provided
by Landlord, then Tenant may elect to
provide such janitorial services directly,
provided that Tenant's janitorial
contractor is reputable and experienced in
providing such services in first class
office buildings in Brentwood, Tennessee,
Tenant shall arrange to be billed directly
by such contractor. Tenant shall
provide Landlord with sufficient notice to
permit Landlord to terminate any
existing janitorial service contract
orderly and without fee or penalty. In the
event Tenant elects to perform such
janitorial services directly, then for
purposes of determining Adjustment Rent,
janitorial costs and expenses which
were included in Expenses for the Base Year
shall be deducted from such Expenses
for the Base Year.
B.
ELECTRICITY. Electricity shall be distributed to the
Building either by the electric utility
company serving the Building or, at
Landlord's option, by Landlord; and
Landlord shall permit Landlord's wire and
conduits, to the extent available, suitable
and safely capable, to be used for
such distribution. All electricity used in
the Building which is in excess of
typical general office uses, such as the
operation of any special air
conditioning systems serving the Building,
may be separately metered by
Landlord, at Tenant's expense, and shall be
paid for by Tenant as additional
Rent hereunder.
C.
TELEPHONES. Tenant shall arrange for telephone service
directly with one or more of the public
telephone companies servicing the
Building and shall be solely responsible
for paying for such telephone service.
In no event does Landlord make any
representation or warranty with respect to
telephone service in the Building and
Landlord shall have no liability with
respect thereto.
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D. ADDITIONAL
SERVICES. Landlord shall not be obligated to
furnish any services other than those
stated above, but Landlord agrees to
cooperate in good faith with Tenant to
provide such additional services as may
be reasonable requested by Tenant. If
Landlord elects to furnish services
requested by Tenant in addition to those
stated above (including services at
times other than those stated above),
Tenant shall pay one hundred ten percent
(110%) of Landlord's actual cost to furnish
such services. If Tenant shall fail
to make any such payment, Landlord may,
without notice to Tenant and in addition
to all other remedies available to
Landlord, discontinue any additional
services. No discontinuance of any such
service shall result in any liability of
Landlord to Tenant or be considered as an
eviction or a disturbance of Tenant's
use of the Building. In addition, if
Tenant's concentration of personnel or
equipment adversely affects the temperature
or humidity in the Building,
Landlord may install supplementary air
conditioning units in the Building, and
Tenant shall pay one hundred fifteen
percent (115%) of the cost of installation,
operation and maintenance thereof.
E. FAILURE OR
DELAY IN FURNISHING SERVICES. Tenant agrees
that Landlord shall not be liable for
damages for failure or delay in furnishing
any service stated above if such failure or
delay is caused, in whole or in
part, by any one or more of the events
stated in Section 25.J. below, nor shall
any such failure or delay be considered to
be an eviction or disturbance of
Tenant's use of the Building, or relieve
Tenant from its obligation to pay any
Rent when due or from any other obligations
of Tenant under this Lease.
Notwithstanding the foregoing, in the event
any such failure or delay in
furnishing any services required to be
provided by Landlord hereunder is caused
by the negligence or wilful misconduct of
Landlord and if such failure or delay
causes the Building to be untenantable, and
as a result thereof Tenant in fact
ceases to use the Building for a period in
excess of five (5) consecutive days,
then commencing on the sixth (6th)
consecutive day of such untenantability and
non-use, Base Rent and Adjustment Rent
payable by Tenant shall be abated until
the earliest to occur of (i) the date such
failure or delay is remedied, (ii)
the date the Building is again tenantable
or (iii) the date Tenant resumes use
of the requires to be provided by Landlord
hereunder.
6. RULES AND REGULATIONS.
Tenant shall observe and comply, and
shall cause its subtenants, assignees,
invitees, employees, contractors and
agents to observe and comply, with the
Rules and Regulations listed on Exhibit B
attached hereto and with such reasonable
modifications and additions thereto as
Landlord may make from time to time,
provided, however, that no such
modifications or additions shall have a
material adverse effect on Tenant's use
of the Building for general office
purposes. Landlord shall not be liable for
failure of any person to obey the Rules and
Regulations. Landlord shall not be
obligated to enforce the Rules and
Regulations against any person, and the
failure of Landlord to enforce any such
Rules and Regulations shall not
constitute a waiver thereof or relieve
Tenant from compliance therewith,
provided, however, that Landlord shall not
discriminate against Tenant in the
enforcement of such Rules and
Regulations.
7. CERTAIN
RIGHTS RESERVED TO LANDLORD. Landlord reserves the
following rights, each of which Landlord
may exercise without notice to Tenant
and without liability to Tenant, and the
exercise of any such rights shall not
be deemed to constitute an
8
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eviction or disturbance of Tenant's use or
possession of the Building and shall
not give rise to any claim for set-off or
abatement of rent or any other claim:
(a) to change the name or street address of
the Building; (b) to install, affix
and maintain any and all signs on the
exterior or interior of the Building; (c)
to make repairs, decorations, alterations,
additions or improvements, whether
structural or otherwise, in and about the
Building, and for such purposes to
enter upon the Building, temporarily close
doors, corridors and other areas of
the Building and interrupt or temporarily
suspend services or use of common
areas, and Tenant agrees to pay Landlord
for overtime and similar expenses
incurred if such work is done other than
during ordinary business hours at
Tenant's request; (d) to retain at all
times, and to use in appropriate
instances, keys to all doors within and
into the Building; (e) to show or
inspect the Building at reasonable times
and, if vacated or abandoned, to
prepare the Building for reoccupancy; (f)
to take any other action which
Landlord deems reasonable in connection
with the operation, maintenance,
marketing or preservation of the Building;
and (g) to approve the weight, size
and location of safes or other heavy
equipment or articles, which articles may
be moved in, about or out of the Building
only at such times and in such manner
as Landlord shall direct, at Tenant's sole
risk and responsibility.
Notwithstanding the foregoing, Landlord
shall provide notice to Tenant prior to
any entry into the Building hereunder,
except, however, in the event of
emergency and in the event of entering the
Building to provide the services that
Landlord is required to provide hereunder
(such as routine janitorial services),
in which case no notice shall be required.
Landlord agrees to use commercially
reasonable efforts to minimize interference
with the conduct of Tenant's
business in connection with any such entry
into the Building. Additionally,
Landlord acknowledges and agrees that
Tenant has the right to place identifying
signage on and about the Building as more
fully provided in Section 25.O. below
and that Tenant intends on prominently
identifying its presence in the Building
and Landlord agrees to not materially
obscure such identification signage of
Tenant.
8.
MAINTENANCE AND REPAIRS. Tenant, at its expense, shall maintain
and keep the Building in good order and
repair at all times during the Term.
Landlord shall be responsible for
maintaining the structural components of the
Building, including the roof. Additionally,
Landlord shall perform any
maintenance or make any repairs to the
Building as Landlord shall desire or deem
necessary for the safety, operation or
preservation of the Building, or as
Landlord may be required or requested to do
by the order or decree of any court
or by any other proper authority. If any
such maintenance or repairs to the
Building is required as a result of the
negligence or wilful misconduct of
Tenant or its employees, contractors or
agents, or breach of this Lease by
Tenant or its employees, contractors or
agents, and if Tenant does not perform
such required maintenance or repair with
due diligence after notice from
Landlord, then Tenant shall reimburse
Landlord for any such maintenance or
repairs of the Building.
9.
ALTERATIONS.
A.
REQUIREMENTS. Tenant shall not make any replacement,
alteration, improvement or addition to or removal from the
Building
(collectively an "ALTERATION") without the prior written consent
of
Landlord, which consent shall not be unreasonably withheld. Review
and
approval of the Work (as defined in the Workletter) shall be
subject to
the terms and conditions of the Workletter, rather than the terms
and
conditions of the this Section 9. In the event Tenant proposes to
make
any alteration, Tenant shall,
9
<PAGE>
prior to commencing such alteration, submit to Landlord for
prior
written approval: (i) detailed plans and specifications; (ii) the
names,
addresses and copies of contracts for all contractors; (iii)
all
necessary permits evidencing compliance with all applicable
governmental
rules, regulations and requirements; (iv) certificates of insurance
in
form and amounts required by Landlord, naming Landlord, its
managing
agent and any other parties designated by Landlord as
additional
insureds; and (v) all other documents and information as Landlord
may
reasonably request in connection with such alteration. Tenant
agrees to
pay Landlord's reasonable charges for review of all such items
and
supervision of the alteration. Neither approval of the plans
and
specifications nor supervision of the alteration by Landlord
shall
constitute a representation or warranty by Landlord as to the
accuracy,
adequacy, sufficiency or propriety of such plans and specifications
or
the quality of workmanship or the compliance of such alteration
with
applicable law. Tenant shall pay the entire cost of the alteration
and,
if requested by Landlord, shall deposit with Landlord, prior to
the
commencement of the alteration, security for the payment and
completion
of the alteration in form and amount required by Landlord. Each
alteration shall be performed in a good and workmanlike manner,
in
accordance with the plans and specifications approved by Landlord,
and
shall meet or exceed the standards for construction and quality
of
materials established by Landlord for the Building. In addition,
each
alteration shall be performed in compliance with all applicable
governmental and insurance company laws, regulations and
requirements.
Each alteration shall be performed by Landlord or under
Landlord's
supervision and in harmony with Landlord's employees and
contractors.
Each alteration, whether temporary or permanent in character, made
by
Landlord or Tenant in or upon the Building (excepting only
Tenant's
furniture, equipment and trade fixtures) shall become
Landlord's
property and shall remain upon the Building at the expiration
or
termination of this Lease without compensation to Tenant;
provided,
however, that Landlord shall have the right to require Tenant to
remove
such alteration at Tenant's sole cost and expense in accordance
with the
provisions of Section 15 of this Lease, which required removal
shall be
specified by Landlord when Landlord consents to Tenant's
requested
alterations, except, however, Landlord may require removal of
any
electronic, phone, data or other telecommunications conduit and
cabling
and
related equipment installed by or on behalf of Tenant by notice
to
Tenant given at any time prior to the expiration or earlier
termination
of this Lease.
B. LIENS.
Upon completion of any alteration, Tenant shall
promptly furnish Landlord with sworn owner's and contractors'
statements
and full and final waivers of lien covering all labor and
materials
included in such alteration. Tenant shall not permit any mechanic's
lien
to be filed against the Building, or any part thereof, arising out
of
any alteration performed, or alleged to have been performed, by or
on
behalf of Tenant. If any such lien is filed, Tenant shall within
twenty
(20) days thereafter have such lien released of record or deliver
to
Landlord a bond in form, amount, and issued by a surety
satisfactory to
Landlord, indemnifying Landlord against all costs and
liabilities
resulting from such lien and the foreclosure or attempted
foreclosure
thereof. If Tenant fails to have such lien so released or to
deliver
such bond to Landlord, Landlord, without investigating the validity
of
such lien, may pay or discharge the same, and Tenant shall
10
<PAGE>
reimburse Landlord upon demand for the amount so paid by
Landlord,
including Landlord's expenses and attorneys' fees.
10.
INSURANCE. In consideration of the leasing of the Building at
the rent stated herein, Landlord and Tenant
agree to provide insurance and
allocate the risks of loss as follows:
A. TENANT'S
INSURANCE. Tenant, at its sole cost and expense
but for the mutual benefit of Landlord (when used in this Section
10.A.
the term "LANDLORD" shall include Landlord's partners,
beneficiaries,
officers, agents, servants and employees and the term "TENANT"
shall
include Tenant's partners, beneficiaries, officers, agents,
servants and
employees),
agrees to purchase and keep in force and effect during the
term hereof, insurance under policies issued by insurers of
recognized
responsibility licensed to do business in the State of Tennessee
with a
Best's rating of A/X or better on all alterations, additions,
and
improvements owned by Tenant, and on all personal property located
in
the Building, protecting Landlord and Tenant from damage or other
loss
caused by fire or other casualty, including but not limited to
vandalism
and malicious mischief, perils covered b
