{"id":41903,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/centerpointe-business-complex-new-castle-de-lease-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"centerpointe-business-complex-new-castle-de-lease-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/centerpointe-business-complex-new-castle-de-lease-agreement.html","title":{"rendered":"Centerpointe Business Complex (New Castle, DE) Lease Agreement – McConnell Development Inc., 700 Frenchtown Development Corp. and Amazon.com Inc."},"content":{"rendered":"\n LEASE AGREEMENT\n\n\n THIS LEASE, made this 22nd day of August, 1997, between MCCONNELL\nDEVELOPMENT, INC. and 700 FRENCHTOWN DEVELOPMENT CORPORATION, a Delaware limited\nliability corporation (hereinafter called \"Landlord\"), and AMAZON.COM, INC. a\nDelaware corporation, (hereinafter called \"Tenant\"). In consideration of the\npremises and the covenants, conditions and rents hereinafter set forth, it is\nagreed as follows:\n\n 1. PREMISES AND TERM; RENEWAL OPTIONS\n\n (a) Landlord does hereby lease, demise and let to Tenant, and\nTenant does hereby lease, take and accept from Landlord, the \"Premises\", known\nas Centerpointe Business Complex, 700 Frenchtown Road, New Castle, Delaware,\nbeing comprised of approximately two hundred thousand (200,000) square feet of\nspace located in a one story warehouse building (\"Building\") to be built by\nLandlord, as outlined in red on the building and site plan attached hereto-as\nEXHIBIT A, which Building shall contain a net leasable area of two hundred\nthousand (200,000) square feet and is located on all that lot of ground in New\nCastle, Delaware more fully described in EXHIBIT B attached hereto.\n\n The Premises shall be delivered to Tenant in two phases: (i) the\nfirst phase (\"Phase I Premises\") shall be delivered on or before November 1,\n1997, and shall consist of 100,000 square feet, including 5,000 square feet of\nfinished office space, in the area designated as the Phase I Premises on Exhibit\nB; and (ii) the second phase (\"Phase II Premises\") shall be delivered on or\nbefore January 1, 1998, and shall consist of the remaining 100,000 square feet,\nincluding 5,000 square feet of finished office space, in the area designated as\nthe Phase II Premises on Exhibit B. As used in this Lease, \"Premises\" includes\nthe Phase I Premises and the Phase II Premises.\n\n (b) The term of this Lease with respect to the Phase I Premises\nshall commence on the date which is later to occur of the date on which the\nPhase I Premises are substantially completed (as defined below) or November 1,\n1997 (\"Phase I Commencement Date\"). The term of this Lease with respect to the\nPhase II Premises shall commence on the date which is later to occur of the date\nupon which the Phase II Premises are substantially completed or January 1, 1998\n(\"Phase II Commencement Date\"). The term of this Lease shall expire on the last\nday of the 60th full month after the Phase I Commencement Date (\"Termination\nDate\"). Landlord shall give Tenant written notice of Landlord's making\napplication for a certificate of occupancy for each phase of the Premises\nfifteen (15) days prior to making such application, and upon Landlord's receipt\nof a temporary certificate of occupancy for each phase of the Premises, Landlord\nshall immediately give Tenant written notice thereof. When the substantial\ncompletion date for each phase has been determined, Landlord and Tenant shall\nwithin 5 business days thereafter execute a written agreement confirming such\ndate as the applicable Commencement Date.\n\n If Landlord, for any reason, cannot deliver possession of each\nphase of the Premises to Tenant upon the applicable Commencement Date, this\nLease shall not be void or violable, but the provisions of Section 2(c)shall\napply. Notwithstanding the foregoing, if Landlord cannot deliver\n\n\n 1\n\n\n 2\npossession of all of the Premises to Tenant on or before April 1, 1998, this\nLease shall be voidable by Tenant upon written notice to Landlord within 30 days\nthereafter.\n\n Each phase of the Premises shall be deemed \"substantially completed\"\nwhen (i) such phase is accessible and fully usable by Tenant for its normal\nbusiness operations, (ii) a valid temporary certificate of occupancy permitting\nthe use of such phase of the Premises for Tenant's intended use has been issued\nby the City of New Castle, Delaware, and (iii) RHJ Associates has executed a\ncertificate to Tenant certifying that Landlord's Work (as defined in Section 2)\nhas been substantially completed in accordance with the plans and specifications\napproved by Landlord and Tenant. The foregoing notwithstanding, a phase of the\nPremises shall not be deemed to be substantially completed if any details of\nconstruction, decoration or mechanical adjustment, or cleanup remain to be done\nin the Premises or any part thereof, that will, in Tenant's reasonable judgment,\nsubstantially impair, reduce or hinder its ability to utilize such phase of the\nPremises, or that might expose any of Tenant's computers, electrical or\nelectronic equipment to damage or reduced performance.\n\n (c) Tenant shall have the option to renew the term of this Lease for\ntwo renewal terms (each, a \"Renewal Term\") of five (5) years each, such\nrenewals to be upon the covenants, terms and conditions as set forth in this\nLease, except that annual rent for a Renewal Term shall be established as\ndescribed below. In order to exercise an option to renew, Tenant shall give\nwritten notice to Landlord not less than one hundred eighty (180) days prior to\nthe end of the then-current Lease term.\n\n The annual rent for each Renewal Term shall be equal to the \"Fair\nMarket Rental Value\" (defined below) of the Premises as of the commencement of\nsuch Renewal Term.\n\n \"Fair Market Rental Value\" shall be determined as follows:\nLandlord and Tenant shall seek to agree as to the Fair Market Rental Value\nwithin thirty (30) days after Tenant gives Landlord notice of its election to\nrenew this Lease. If Landlord and Tenant do not agree about Fair Market Rental\nValue within such thirty (30) day period, the following provisions shall apply:\n\n Within fifteen (15) days after the expiration of the above-mentioned\n thirty (30) day period, Landlord and Tenant shall each identify an\n impartial person to act as a valuation expert and notify the other\n thereof. The expert specified in each such notice must be a commercial\n real estate M.A.I. appraiser conducting business in New Castle, Delaware\n and having not less than five (5) years' active experience as a real\n estate M.A.I appraiser in the commercial and industrial leasing market\n in New Castle, Delaware. If either party fails to appoint an expert\n within such fifteen (15) day period, then the determination of the\n expert first appointed shall be final, conclusive and binding on both\n parties.\n\n The named experts shall together determine the Fair Market Rental Value.\n In making such determination, the experts shall consider the rentals at\n which leases are being concluded for comparable space in comparable\n buildings in the New Castle, Delaware region. If the experts fail to\n agree on the Fair Market Rental Value within thirty (30)\n\n\n 2\n\n\n 3\n days of their appointment and the difference in their conclusions about\n Fair Market Rental Value is ten percent (10%) or less of the lower of\n the two determinations, Fair Market Rental Value shall be the average of\n the two determinations.\n\n If the two experts fail to agree on Fair Market Rental Value and the\n difference between the two determinations exceeds ten percent (10%) of\n the lower of the two determinations, then the experts shall appoint a\n third expert, similarly impartial and qualified, to determine the Fair\n Market Rental Value. Such third expert shall determine the Fair Market\n Rental Value within thirty (30) days of his or her appointment, and the\n average of the determinations of the two closest experts is final,\n conclusive and binding on Landlord and Tenant. Landlord and Tenant shall\n each execute and deliver an agreement confirming annual rent for the\n Renewal Term.\n\n Landlord and Tenant shall each pay the fees of any expert appointed by\n Landlord and Tenant, respectively, and Landlord and Tenant shall each\n pay one-half (1\/2) of the fees of the third expert, if any.\n\n Notwithstanding anything to the contrary contained herein, in no event\nshall the annual rent payable during either Renewal Term be less than the annual\nrent which was payable during the preceding term.\n\n 2. LANDLORD'S WORK; RELOCATION OPTION\n\n (a) Landlord shall, at no cost to Tenant, construct the Building,\nwhich shall be a twenty-four (24) foot clear warehouse building containing\napproximately 200,000 leasable rentable square feet of space, and shall finish\nthe interior of the Premises on a \"turn key\" basis, pursuant to this Lease, the\nWork Letter attached, hereto as Exhibit C, and the space plan prepared by RHJ\nAssociates dated August 21, 1997, a copy of which is attached hereto as Exhibit\nD. (Such construction of the Building and such finishing of the interior of the\nPremises on a \"turn-key\" basis are referred to collectively as \"Landlord's\nWork\"). In connection with Landlord's Work, Landlord shall provide, at its cost\nand expense, all preliminary and final plans, drawings and specifications, and\nLandlord shall arrange and pay for all necessary and desirable architectural and\nspace planning work. All plans and specifications for the finishing of the\ninterior of the Premises, all architectural and space planning work, and the\ncost of the work to finish the interior of the Premises, shall be mutually\napproved by Landlord and Tenant. Tenant agrees that when any such approval is\nrequested of Tenant by Landlord, Tenant shall respond to Landlord within five\n(5) business days of Landlord's request. In the event that Tenant shall\ndisapprove of any item for which its approval is sought, Tenant shall clearly\nstate the reasons therefor. The parties agree that in the event that all plans\nand specifications for the finishing of the interior of the Premises, all\narchitectural and space planning work, and the cost of the work to finish the\ninterior of the Premises are not agreed upon by Landlord and Tenant on or before\nSeptember 15, 1997, then Landlord shall not be obligated to deliver the Phase I\nPremises on or before November 1, 1997 or the Phase II Premises on or before\nJanuary 1, 1998; rather the applicable commencement date shall be extended by\none day for each day between September 15, 1997 and the date that all such items\nhave been approved. All of Landlord's Work shall be done in a good and\nworkmanlike manner. All of Landlord's Work shall\n\n\n 3\n\n\n 4\nbe done in compliance with the approved plans and specifications, all applicable\nprovisions of this Lease and all applicable laws, ordinances, directions, rules\nand regulations of governmental authorities having jurisdiction thereof.\nLandlord shall, at its sole cost and expense, obtain any governmental permits\nrequired in connection with Landlord's Work.\n\n (b) Landlord shall promptly correct all defects in Landlord's Work\nand all failures of Landlord's Work to conform to the plans and specifications\nfor such Work which have been agreed upon by Landlord and Tenant, which defects\nor nonconformities are discovered before or within one year after the date upon\nwhich Tenant first occupies the applicable phase of the Premises. Landlord shall\nbear all costs of correcting Landlord's Work. Landlord and Tenant shall each\ngive the other prompt written notice after discovering the existence of any such\ndefects or nonconformities in Landlord's Work.\n\n (c) If, on or before September 30, 1997, Landlord and Tenant agree\nthat the Phase I Premises are not likely to be completed by November 1, 1997, or\nif the Phase I Premises are not in fact substantially completed by November 1,\n1997, then Landlord shall provide occupancy for Tenant in an approximately\n36,000 square foot warehouse building controlled by Landlord and located at 1600\nJohnson Way, New Castle, Delaware (\"Temporary Space\"). Tenant shall have\noccupancy in the Temporary Space commencing November 1, 1997 and terminating\nfifteen (l5)days after the Phase I Premises have been substantially completed.\nTenant's occupancy in the Temporary Space shall be free of rent and all other\ncharges.\n\n In addition, if the Phase I Premises are not substantially\ncompleted by November 1, 1997, then for every day thereafter that the Phase I\nPremises are late, Landlord shall pay to Tenant the amount of One Thousand Four\nHundred Dollars ($1,400) per day for every day until the Phase I Premises have\nbeen substantially completed. If the Premises are not substantially completed by\nApril 1, 1998, and Tenant terminates this Lease pursuant to Section 1(b), then\nLandlord shall immediately pay all amounts owed under this Section 2(c) to\nTenant. If the Premises are substantially completed prior to April 1, 1998, all\namounts owed by Landlord to Tenant under this Section 2(c) and not paid by\nLandlord may be deducted from and offset against Basic Rental and all other\nadditional rent until all such amounts have been recovered by Tenant.\nLandlord's maximum obligation under this Section 2(c) shall be Two Hundred\nFifty Thousand Dollars ($250,000). This Section 2(c) shall survive the\ntermination of this Lease. Tenant shall be allowed to vacate the Temporary Space\nwhen the Phase I Commencement Date has been achieved.\n\n 3. RENT\n\n (a) Tenant covenants to pay to Landlord at such place as Landlord\nshall from time to time direct, basic rent (\"Basic Rental\") computed at Four and\n44\/100 Dollars ($4.44) per year per leasable square foot. Accordingly, the Basic\nRental for the Phase I Premises shall be $37,000.00 per month, and the Basic\nRental for the Phase II Premises shall be $37,000.00 per month. Such Basic\nRental shall be payable in equal monthly installments in advance and without\ndemand, commencing on the Phase I Commencement Date and the Phase II\nCommencement Date, as the case may be.\n\n\n 4\n\n\n 5\n Landlord and Tenant acknowledge and agree that the precise leasable\nsquare foot area of the Premises cannot be determined until such time as the\nPremises are substantially completed. Upon the substantial completion of each\nphase of the Premises, Landlord and Tenant shall, at Landlord's expense,\ndetermine the precise leasable square foot area of the Premises using the BOMA\nstandard of measurement for industrial type space and, upon such determination,\nLandlord and Tenant shall execute a certificate setting forth such area, and\nbased upon such area, the Basic Rental payable under this Section 3. Within 30\ndays after such determination is made, if the actual leasable square foot area\nof each phase of the Premises is determined to be less than 100,000 square feet,\nLandlord shall refund any excess Basic Rental previously paid by Tenant. If the\nactual leasable square foot area of each phase of the Premises is determined to\nbe greater than 103,000 square feet, Tenant shall be under no obligation to pay\nBasic Rental for any space in excess of 103,000 leasable square feet.\n\n (b) The payment of Basic Rental shall be net to the Landlord, and\naccordingly shall be in addition to and over and above all other payments to be\nmade by Tenant as hereinafter provided and all expenses pertaining to the\nownership, maintenance and use of the premises, except as expressly set forth\nherein, it being the purpose and intent of the Landlord and Tenant that the rent\npayable hereunder shall when received by Landlord be absolutely net to it, and\nthat except as expressly provided in Section 11(c) hereafter all costs,\ncharges, expenses and obligations of every kind relating to the ownership of the\nPremises and the use thereof which may arise or become due during the term of\nthis Lease shall be paid by Tenant and that Landlord shall be indemnified and\nsaved harmless by Tenant from and against same.\n\n (c) Tenant covenants to pay when due, without any abatement,\ndeduction or set-off, the rent provided for herein and to pay as additional rent\nwhen due all other sums, costs, charges and expenses payable by Tenant under\nthis Lease, and, in the event of any nonpayment thereof, such sums shall be\ncollected as rent, and Landlord shall have all the rights and remedies provided\nfor herein or by law in the case of nonpayment of rent. All payments of rent,\nadditional rent, and any other charges required to be paid hereunder which are\nnot paid promptly by Tenant to Landlord when due shall be subject to a late\ncharge of one and 1.0% per month outstanding.\n\n 4. TAXES\n\n Tenant covenants to pay Landlord, as additional rental, one hundred\npercent (100%) of any real estate taxes and assessments, as hereinafter defined,\nlevied on the land and improvements of which the Premises are a part as follows:\n\n (a) Real estate taxes and assessments shall be adjusted and\npro-rated to the Commencement Date or the Termination Date of the term as the\ncase may be.\n\n (b) Tenant shall pay its share of such real estate taxes and\nassessments as set forth above within thirty (30) days before such taxes and\nassessments are delinquent, provided that Landlord has delivered a statement of\nits calculations supported by copies of the actual billings rendered to\nLandlord.\n\n\n 5\n\n\n 6\n (c) For purposes of this paragraph, the term \"real estate taxes and\nassesments\" shall include any public charges against the land and improvements\nof which the Premises are a part (including assessments by any County,\nMunicipal, Metropolitan District or Commission). Landlord represents to Tenant\nthat it has been advised by the City of New Castle that the Premises is entitled\nto the benefit of a ten-year real estate tax abatement program (applicable to\nthe City of New Castle portion of the tax bill only), which shall be in effect\nfor ten years from and after the Phase I Commencement Date. If the Premises do\nnot receive the benefit of the ten (10) year real estate abatement program, then\nLandlord and Tenant shall each be responsible for one-half (1\/2) of all\nadditional taxes due during the Lease term by reason of not receiving the\nabatement.\n\n (d) The Tenant shall have the right to contest the amount or\nvalidity, in whole or in part, of any increase in such real estate taxes and\nassessments in the name of the Landlord or the Tenant, as required, by\nappropriate proceedings diligently conducted in good faith and the Landlord\nagrees to fully cooperate in any such efforts by the Tenant, at the expense of\nTenant. If the payment of the tax or assessment would operate as a bar to the\nproceedings or to materially interfere with its prosecution, the Tenant may\nrequire the Landlord to postpone or to defer the payment of the tax (and\nLandlord may require the Tenant to post bond or security to defer the payment)\nso long as the Premises would not, in the reasonable opinion of Landlord by\nreason of the postponement, be in danger of being forfeited or lost. Any \ninterest or penalty incurred by reason of the postponement of the payment of \nthe taxes shall be paid by the Tenant.\n\n 5. INTENTIONALLY DELETED.\n\n 6. SNOW REMOVAL, PARKING LOT MAINTENANCE, GRASS CUTTING,\n LANDSCAPING, SECURITY, 1% MANAGEMENT FEES, COMMON AREA ELECTRIC,\n AND OTHER COMMON AREA CHARGES\n\n (a) Tenant covenants to pay Landlord, as additional rental, one\nhundred percent (100%) of all reasonable costs incurred for snow removal,\nparking lot maintenance, grass cutting, landscaping, security, common area\nelectric, and other common area charges (collectively, \"Common Area Expenses\")\nduring the term of the Lease. The Common Area Expenses shall also include (i) \na management fee (\"Management Fee\") for Landlord's services in operating and\nmaintaining the common areas, such fee not to exceed one percent (1%) of the\nBasic Rental per year and (ii) fire and extended coverage insurance to be\nmaintained by Landlord with respect to the Building, rental insurance covering a\nperiod of twelve (12) months and Three Million Dollars ($3,000,000) coverage for\ngeneral commercial liability insurance. Notwithstanding the foregoing, the\nfollowing items shall be excluded (or as applicable, deducted) from Common Area\nExpenses: costs resulting from the correction of any latent construction\ndefects in all or any portion of the Premises, or any condition that is not in\ncompliance with applicable laws, codes, rules or regulations; payments of\nprincipal, interest or other payments on any kinds of mortgages or trust deeds\nor other liens securing all or any part of the Premises; Landlord's general\noverhead and other expenses not related to Premises; legal and professional fees\nincurred by Landlord in negotiating and enforcing a ground lease and financing\nfor the Premises and leases with other tenants; the cost of defending against\nclaims relating to the existence or release of hazardous substances or materials\nat the Premises and cost of cleanup of any such hazardous substances or\nmaterials (except with respect to those costs for which Tenant is otherwise\nresponsible pursuant to the express terms of this Lease);\n\n\n 6\n\n\n 7\nand amounts received by Landlord through proceeds of insurance to the extent\nproceeds are compensation for expenses that were previously included in the\nCommon Area Expenses.\n\n (b) Annual Estimate of Common Area Expenses\n\n No later than thirty (30) days prior to the Phase I\nCommencement Date, Landlord shall estimate and notify Tenant in writing of the\namount of Common Area Expenses to be paid by Tenant for the remainder of the\ncalendar year in which the Phase I Commencement Date occurs. During the\nremainder of such calendar year, Tenant shall pay Common Area Expenses to\nLandlord based upon such estimate. Such Common Area Expenses shall be payable as\nadditional rent, in equal monthly installments, in the same manner and together\nwith Basic Rental.\n\n No later than ninety (90) days after the commencement of each\ncalendar year after the calendar year in which the Phase I Commencement Date\noccurs, Landlord shall estimate and notify Tenant in writing of the amount of\nCommon Area Expenses to be paid by Tenant for the then-current calendar year.\nWithin thirty (30) days after Tenant's receipt of such estimate from Landlord,\nTenant shall pay Landlord, as additional rent, an amount equal to the product\nobtained by multiplying such estimate by a fraction, the numerator of which\nshall be the number of months of such calendar year that will have elapsed prior\nto the first day of the month immediately following Tenant's receipt of such\nestimate from Landlord, and the denominator of which shall be twelve (12).\nCommencing on the first day of the month immediately following Tenant's receipt\nof such estimate from Landlord, Common Area Expenses shall be payable as\nadditional rent, in equal monthly installments equaling 1\/12th of such estimate,\nin the same manner and together with Basic Rental.\n\n (c) Reconciliation of Common Area Expenses\n\n Between ninety (90) and one hundred twenty (120) days\nfollowing the expiration of each calendar year, Landlord shall prepare and\ndeliver to Tenant an itemized accounting (together with copies of bills and\ninvoices) of actual Common Area Expenses incurred during the prior calendar year\nand such accounting shall reflect Tenant's share of each of such actual Common\nArea Expenses and the method of computation thereof. If the additional rent paid\nby Tenant under this Section 6 during the preceding calendar year was less than\nthe actual amount of Tenant's share of Common Area Expenses, Landlord shall so\nnotify Tenant and Tenant shall pay the difference to Landlord within 30 days\nafter receipt of such notice. Such amount shall be deemed to have accrued during\nthe prior calendar year and shall be due and payable from Tenant even though the\nterm of this Lease shall have expired or this Lease has been terminated prior to\nTenant's receipt of this notice. If the additional rent paid by Tenant under\nthis Section 6 was greater than the actual amount of Tenant's share of Common\nArea Expenses, then the amount of such overpayment shall be credited by Landlord\nto all present rent due under this Lease, or refunded to Tenant if no further\nrental payments are due Landlord from Tenant under this Lease.\n\n (d) Statements Binding\n\n The statements of Common Area Expenses to be furnished by\nLandlord as provided above shall be certified as true and correct by Landlord,\nand shall be prepared in \n\n 7\n\n\n\n 8\nreasonable detail by Landlord. The statements thus furnished to Tenant shall\nconstitute a final determination as between Landlord and Tenant of Common Area\nExpenses for the periods represented thereby, unless Tenant, within 90 days\nafter they are furnished, shall give notice to Landlord that it disputes their\naccuracy or their appropriateness, which notice shall specify the particular\nrespects in which the statement is inaccurate or inappropriate. Pending the\nresolution of such dispute, Tenant shall pay to Landlord the uncontested portion\nof Common Area Expenses. Within thirty (30) days after the resolution of such\ndispute, Tenant shall pay to Landlord any deficiency in the amount of Common\nArea Expenses previously paid by it to Landlord. Tenant shall have the right,\nduring reasonable business hours and upon three (3) business days' prior written\nnotice to Landlord, to examine and\/or audit Landlord's books and records with\nrespect to Common Area Expenses paid or payable by Tenant, and if such\nexamination reveals that Landlord overstated Common Area Expenses by five\npercent (5%) or more, the cost of such examination and\/or audit shall be paid\nby Landlord.\n\n (e) Common Area Expense Projection\n\n Landlord currently projects that Tenant's share of Common Area\nExpenses will equal $11,833.33 per month (excluding utility charges), plus the\nmonthly share of the Management Fee, for the initial twelve (12) full months of\nthe Lease term after the Phase I Commencement Date and the Phase II Commencement\nDate.\n\n 7. UTILITIES\n\n Tenant shall pay for all charges for gas, electricity, light, heat,\nall public charges for sanitary sewage discharged from the Premises and for\nwater consumed on the Premises, power and all other utilities and telephone or\nother communication services used, rendered or supplied upon or in connection\nwith the Premises.\n\n 8. LIENS OR ENCUMBRANCES\n\n Tenant shall not suffer the Premises or any erection of improvements\nthereon to become subject to any lien, charge or encumbrances, and shall\nindemnify Landlord against all such liens, charges and encumbrances.\n\n 9. USE OF PREMISES\n\n Tenant shall use and occupy the Premises throughout the term hereof\nsolely for the purpose of a warehouse and distribution facility, together with\nassociated offices and other incidental uses related thereto.\n\n 10. ALTERATIONS AND IMPROVEMENTS\n\n (a) Upon completion of the Landlord's Work in accordance with\nSection 2 hereof, Landlord shall assign to Tenant any warranties relating to\nsuch Landlord's Work to the extent that\n\n\n 8\n\n\n 9\nsuch are given to Landlord by its contractors or subcontractors and shall have\nno further obligation to make any alterations or improvements to the Premises\nexcept as provided in Sections 2 and 11(c) hereof.\n\n (b) Tenant further covenants that it will at no time or times make\nany alterations, improvements or changes of any kind to the Premises without\nfirst submitting the plans thereof and securing the prior written consent of the\nLandlord, which consent shall not be unreasonably withheld or delayed; provided,\nhowever, that Tenant may, at its own option and without having to secure the\nconsent, written or otherwise of the Landlord,\n\n (1) make any alterations or changes of any kind to the\nPremises which may be required by any governmental order or regulation, and, so\nlong as such alterations or changes are not of a character required to be\nperformed by Landlord hereunder, such alterations or changes shall, if made by\nTenant, be made, at no expense to Landlord; and\n\n (2) undertake any landscaping or similar work with respect to\nthe Premises (including the improvements constructed as part of Landlord's\nWork) which are of a minor nature and are reasonably necessary to the use by\nTenant of the Premises as contemplated hereunder, provided that such work or\nalterations or changes are performed at no cost to Landlord; and\n\n (3) make any alterations or changes of any kind to the\nPremises which shall be required to reconfigure machinery and equipment and\nperform minor nonstructural alterations.\n\n\n Landlord acknowledges that Tenant may desire to build a mezzanine\nwithin the Premises. Tenant may build the mezzanine after first submitting the\nplans thereof and securing the prior written consent of Landlord, which consent\nshall not be unreasonably withheld or delayed.\n\n All improvements, alterations, replacements and building service\nequipment made or installed by or on behalf of Tenant and permanently affixed to\nthe Building shall immediately upon completion or installment thereof be and\nbecome the property of Landlord without payment therefor by Landlord, but\nsubject to the provisions of this Lease; provided that all machinery, equipment\n(other than building service equipment), trade fixtures, movable partitions,\nfurniture and furnishings installed by Tenant or maintained on the Premises,\neven if permanently affixed thereto, shall remain the property of Tenant, and\nTenant shall, if not in default, be entitled to remove the same or any part\nthereof at any time during the Lease term, but Tenant shall, at its expense,\nrepair any and all damage to the Premises resulting from or caused by such\nremoval. The interest of Tenant in any property which is not so removed shall at\nthe end of the time provided for removal thereof vest in Landlord.\n\n 11. REPAIRS AND MAINTENANCE\n\n (a) Except as provided in Sections 2 and 11(c), Tenant covenants\nthroughout the term, at its expense, to maintain in good order and repair the\ninterior of the Premises, and to maintain and replace when necessary, all window\nand door glass therein, interior and exterior; to\n\n\n 9\n\n\n 10\nmaintain and repair all building service equipment therein including, but not\nlimited to, electrical, plumbing, heating, air conditioning and sprinkler\nequipment, pipes, wires, ducts, fixtures and appliances; to make all ordinary\nand necessary repairs to the interior and exterior of the Premises other than\nthose repairs which Landlord is required to make as set forth in subparagraph\n(c) of this Section 11, to keep the Premises in a safe, clean and sanitary\ncondition; to provide for the removal of trash and rubbish; and to surrender to\nPremises at the end of the term in as good condition as when received except for\nordinary wear and use, fire or other unavoidable casualty.\n\n (b) Landlord will provide, at Tenant's expense, for inspection at\nleast once each calendar quarter, of the heating, air conditioning and\nventilating equipment (which inspection shall encompass the work described on\nEXHIBIT E attached hereto and made a part hereof), and provide for necessary\nrepairs thereto. Landlord will provide Tenant with copies of all service calls\nand reports within thirty (30) days after any service call.\n\n (c) Landlord hereby guarantees the quality and condition of the\nPremises and all equipment, systems, fixtures and other improvements therein for\na period of one year after the Phase I Commencement Date and Phase II\nCommencement Date, as the case may be. Landlord shall, at its sole expense, \ncause all repairs, maintenance and replacements to be promptly made in order \nto comply with the terms of this guaranty. After the one year warranty period \nhas expired, Landlord shall also, at Landlord's sole expense, maintain, repair \nand replace any such items that were not built or installed in accordance with \nall applicable laws and codes at the time of original installation. In addition,\nthroughout the Lease term. Landlord agrees to perform, at its expense,\nmaintenance, repair and replacement to the exterior structure of the Building\nand the roof, except when such repairs are necessitated by negligence of the\nTenant.\n\n 12. TENANT'S INSURANCE\n\n Tenant shall obtain and maintain commercial general liability\ninsurance in form and substance reasonably satisfactory to Landlord and\nLandlord's lender, insuring Landlord against claims for bodily injury or death\noccurring in or about the Premises and on, in or about the adjoining driveways\nand passageways, to the limit of not less than One Million Dollars\n$(1,000,000.00) in respect of bodily injury or death to one person, and to the\nlimit of not less than Three Million Dollars $(3,000,000.00) in respect of one\naccident, and property damage insurance insuring against claims for damage or\ninjury to property of others occurring in or about the Premises and on, in or\nabout the adjoining streets and passageways, to the limit of not less than One\nHundred Thousand Dollars $(100,000.00) in respect to damage to the property of\nanother.\n\n Said policy shall provide that notwithstanding any negligent act of\nTenant which might otherwise result in its forfeiture, the policy shall not be\ncanceled without at least ten (10) days written notice to each named assured. A\ncopy of said policy shall be delivered to Landlord.\n\n In the event Tenant's occupancy causes any increase in premiums for\nfire and extended coverage insurance or rental insurance on the improvements of\nwhich the Premises are a part above the rate for the least hazardous type of\noccupancy legally permitted in the Premises, the Tenant shall pay the additional\npremiums by reason thereof. Bills for such additional premiums shall be rendered\n\n\n 10\n\n\n 11\nby Landlord to Tenant at such times as Landlord may elect and shall be due from\nand payable by Tenant when rendered, and the amount thereof shall be deemed to\nbe, and be paid as additional rent.\n\n 13. DAMAGE OR DESTRUCTION\n\n In the event the Premises or the Building is destroyed or damaged by\nfire, earthquake or other casualty covered by the insurance required to be\ncarried pursuant to Section 6 above, then Landlord shall proceed with reasonable\ndiligence to rebuild and restore the Premises or such part thereof as may be\ndamaged. In the event the Premises or the Building are destroyed or injured by\ncasualty not covered by insurance, or in the event the Building is damaged in\nexcess of fifty (50%) of the full replacement value thereof, Landlord may,\nwithin forty-five (45) days after such destruction or damage, notify Tenant in\nwriting of its election to terminate this Lease, in which event this Lease shall\nterminate as of the date of such damage (to the extent Tenant shall have already\npaid Basic Rental for any time after the date of such termination, Landlord\nshall promptly refund such amount to Tenant). Notwithstanding any other\nprovisions to the contrary, in the event the Premises are damaged to such an\nextent so as to require in excess of one hundred twenty (120) days to rebuild or\nrestore, Tenant may, by notice to Landlord within forty-five (45) days after the\ndetermination of the extent of the damage, terminate this Lease as of the date\nof damage (to the extent Tenant shall have already paid Basic Rental for any\ntime after the date of such termination, Landlord shall promptly refund such\namount to Tenant). In the event this Lease is not terminated pursuant to the\nprovisions of this Section 13, Landlord shall diligently pursue reconstruction\nand during the period of rebuilding and restoration, and Basic Rental\nhereunder shall be abated in the same ratio as the portion of the Premises\nrendered for the time being unfit for occupancy shall bear to the entire\nPremises.\n\n 14. COMPLIANCE WITH REGULATIONS, ETC.\n\n Tenant covenants throughout the term at its expense to comply\npromptly with all laws, codes, ordinances, administrative and court orders and\ndirectives, rules and regulations which have the force of law, whether now in\neffect or hereafter promulgated, applicable to Tenant's use and occupancy of the\nPremises, however Tenant shall have the right to contest the applicability\nand\/or validity of any of the above so long as by reason of such action, the\nPremises or the Improvements would not be in danger of forfeiture or loss.\n\n 15. CONDEMNATION\n\n (a) If during the term of this Lease, all or a substantial part of\nthe Premises shall be taken by eminent domain, then at the option of the Tenant\nor the Landlord the Lease shall terminate as of, and the rent shall be\napportioned to and abate from and after, the date of taking, and Tenant shall\nhave no right to participate in any award or damages for such taking (except as\nset forth in Section 15(d) hereof) and hereby assigns all of its right, title\nand interest therein to Landlord. For purposes of this Section 15, \"a\nsubstantial part of the Premises\" shall mean a taking which renders Tenant\nunable to carry on its business on the Premises.\n\n (b) If during the term of this Lease, less than a substantial part\nof the Premises (as\n\n\n 11\n\n\n 12\nhereinbefore defined) shall be taken by eminent domain, this Lease shall remain\nin full force and effect according to its terms; and Tenant shall have no right\nto participate in any award or damages for such taking and hereby assigns all of\nits right, title and interest therein to Landlord, provided that Landlord shall\nat its expense promptly make such repairs and improvements as shall be necessary\nto restore the Premises to substantially the same efficiency as before the\ntaking.\n\n (c) For the purpose of this Section 15, \"taken by eminent domain\" or\n\"taking under the power of eminent domain\" shall include a negotiated sale or\nlease and transfer of possession to a condemning authority under bona fide\nthreat of condemnation for public use, and Landlord alone shall have the right\nto negotiate with the condemning authority and conduct and settle all litigation\nconnected with the condemnation. As hereinabove used, the words \"award of\ndamage\" shall, in the event of such sale or settlement, include the purchase or\nsettlement price of any such negotiated transfer.\n\n (d) Nothing herein shall be deemed to prevent Tenant from claiming,\nnegotiating, and receiving from the condemning authority, if legally payable,\ncompensation for the taking of Tenant's own tangible property, improvements\nupon the leased Premises constructed at Tenant's sole expense, and damages for\nTenant's loss of business, business interruption and\/or removal and relocation.\nShould the condemnation be affected without a cancellation of the Lease, there\nshall be an appropriate reduction in rental commensurate with the area so taken.\n\n 16. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS\n\n If Tenant shall fail to perform any covenant or duty required of it\nby this Lease or by law, Landlord shall, after notice to Tenant and expiration\nof the applicable cure period, have the right (but not the duty) to enter the\nPremises, if necessary, to perform the same without notice, but the reasonable\ncost thereof shall be deemed to be additional rent, and shall give the Landlord\nthe same rights and remedies as though the additional rent were part of the\nmonthly rent due the Landlord under this Lease. The provisions of this Section\n16 shall not apply to Landlord's indemnification with respect to environmental\nmatters pursuant to Section 40 hereof.\n\n 17. INDEMNIFICATION\n\n (a) Except with respect to claims arising from Landlord's negligence\nor that of its agents, servants or employees, Tenant covenants to indemnify and\nsave Landlord harmless (to the extent not reimbursed by insurance required by\nthis Lease to be furnished by Tenant) from any and all claims for liability of\nany nature whatever arising from any use, occupancy, construction, repairs, or\nother work or activity done by Tenant in, on or about the Premises during the\nterm or from any condition of the Premises or anything thereon or therein during\nthe term caused by Tenant, or from any occurrence whatever in, on or about the\nPremises during the term caused by Tenant, including all Landlord's reasonable\ncosts, expenses and counsel fees in connection with any such claim.\n\n (b) Except with respect to claims arising from Tenant's negligence\nor that of its agents, servants or employees, Landlord covenants to indemnify\nand save Tenant harmless (to the extent not reimbursed by insurance required by\nthis Lease to be furnished by Tenant) from any and\n\n\n 12\n\n\n 13\nall claims for liability of any nature whatever arising from any use, occupancy,\nconstruction, repairs or other work or activity done in, on or about the\nPremises by Landlord before or during the term or from any condition of the\nPremises or anything thereon or therein before or during the term to the extent\nnot caused by Tenant or from any occurrence whatever in, on or about the\nPremises during the Term not caused by Tenant, including all Tenant's reasonable\ncosts, expenses and counsel fees in connection with any such claim.\n\n (c) If a claim for liabilities is to be made by a party entitled to\nindemnification hereunder against the indemnifying party, the party entitled to\nsuch indemnification shall give written notice to the indemnifying party as soon\nas practical, but in no event later than thirty (30) days, after the party\nentitled to indemnification becomes aware of any fact, condition or event which\nmay give rise to liabilities for which indemnification may be sought under this\nSection 17. If any lawsuit or enforcement action is filed against any party\nentitled to the benefit of indemnity hereunder, written notice hereof shall be\ngiven to the indemnifying party as promptly as practicable (and in any event\nwithin thirty (30) days after the service of the citation or summons). After\nsuch notice, if the indemnifying party shall acknowledge in writing to the\nindemnified party that the indemnifying party shall be obligated under the terms\nof its indemnity hereunder in connection with such lawsuit or action, then the\nindemnifying party shall be entitled, if it so elects, to take control of the\ndefense and investigation of such lawsuit or action and, with the indemnified\nparty's consent, which shall not be unreasonably withheld (except where such\nsettlement might restrict the indemnified party's ability to conduct its\nbusiness, in which case such consent may be given or withheld in the indemnified\nparty's sole discretion), to settle such a lawsuit or action, and to employ and\nengage attorneys of its own choice to handle and defend the same, at the\nindemnifying party's cost, risk and expense, provided that the indemnifying\nparty and its counsel shall proceed with diligence and in good faith with\nrespect thereto. The indemnified party shall cooperate in all reasonable\nrespects with the indemnifying party and such attorneys in the investigation,\ntrial and defense of such lawsuit or action and any appeal arising therefrom;\nprovided, however, that the indemnified party may, at its own cost, participate\nin the investigation, trial and defense of such lawsuit or action and any appeal\narising therefrom.\n\n 18. [INTENTIONALLY OMITTED]\n\n\n 19. DEFAULT PROVISIONS\n\n In the event Tenant fails to pay any installment of Basic Rental,\nadditional rent or other sums payable hereunder within five (5) business days\nafter receipt of written notice from Landlord that such payment is overdue,\nLandlord may elect to immediately terminate this Lease, in accordance with\napplicable law, by serving a written notice upon Tenant.\n\n In the event of any other event of default of Tenant hereinafter\nmentioned in this Section 19, then Landlord may elect to terminate this Lease by\nserving a written notice upon Tenant of Landlord's election to terminate this\nLease upon a specified date, not less than thirty (30) days after the day of\nserving of such notice. If said event of default shall not be corrected within\nsaid thirty (30) day period, this Lease shall then expire on the date specified,\nas if that date had originally\n\n\n 13\n\n\n 14\nfixed as the expiration of the term hereinafter granted; provided, however, that\nthis Lease shall not terminate or expire if Tenant undertakes diligently to\nremedy a default within such thirty (30) day period.\n\n Each of the following events shall be deemed an event of default by\nTenant within the meaning of this Section 19:\n\n (a) the failure to pay any installment of Basic Rental or additional\nrent within five (5) business days after receipt of written notice from Landlord\nthat such payment is overdue;\n\n (b) the failure to perform any of the other covenants or conditions\nof this Lease on the part of Tenant to be performed;\n\n (c) the making of an assignment by Tenant for the benefit of its\ncreditors;\n\n (d) the appointment of a receiver or trustee of all or part of\nTenant's property;\n\n (e) the filing of a petition in bankruptcy by Tenant;\n\n (f) the filing of a petition by or against Tenant for its\nreorganization or for an arrangement under any bankruptcy law or other law; or\n\n (g) the filing of or petition by Tenant to effect a composition or\nan extension of time to pay its debts; provided that if an event referred to in\nsections (d) and (f) above shall have been involuntary on the part of Tenant,\nthe Tenant shall have sixty (60) days to discharge the receiver or trustee or\ndismiss the petition after the appointment or filing.\n\n In the event that this Lease is terminated in the manner provided\nfor in this Section 19, or by court proceedings or otherwise, Landlord or\nLandlord's agents, servants or representatives may, at any time after written\nnotice to Tenant and the times set forth in this Section 19, reenter and resume\npossession of said Premises, or any part thereof, and remove all persons and\nproperty therefrom, by any suitable action or proceeding at law, without being\nliable for any damages therefor. No reentry by Landlord shall be deemed to be an\nacceptance of a surrender of this Lease; and Tenant agrees that in the event\nthis Lease in accordance with its provisions, is terminated because of Tenant's\ndefault, Landlord's lien in and to this Lease and any improvement on or\nhereinafter placed on the premises and on any equity of Tenant in and to any\nfurnishings, equipment, fixtures or any other personal property, shall forthwith\nattach, such lien being granted for the purposes of securing the performance of\nTenant's obligation hereunder.\n\n In case the rent or any installment of said rent hereby agreed to be\npaid shall at any time be in default, the Landlord shall have the right to\ndistrain therefor.\n\n The Landlord, upon the happening of any of the events giving it the\nright to annul and cancel this Lease, shall be entitled to the benefit of all of\nthe provisions of law for the speedy recovery of lands and tenements under this\nLease held over by the Tenant in New Castle County,\n\n\n 14\n\n\n 15\nDelaware that are now in force or may hereafter be enacted.\n\n 20. ADDITIONAL REMEDIES OF LANDLORD\n\n In the event that this Lease is terminated in the manner set forth\nin Section 19 hereof, or by court proceedings or otherwise, Landlord may for its\nown account, relet the whole or any portion of said Premises for any period\nequal to or greater or less than the remainder of the original term of this\nLease for any sum which it may deem reasonable, to any tenants which it may deem\nsuitable and satisfactory, and for any use and purposes which it may deem\nappropriate, but in no event shall Landlord be under any obligation to relet the\nsame premises for any purpose which Landlord may regard as injurious to the\nPremises, or to any tenant which Landlord, in the exercise of reasonable\ndiscretion shall deem to be objectionable. In the event of such termination of\nthis Lease, or in the event of any default mentioned in Section 19 hereof, and\nwhether or not the Premises be relet, and whether this Lease be terminated or\nnot, Landlord shall be entitled to recover of Tenant, and Tenant hereby agrees\nto pay to Landlord as damages, the following:\n\n (a) declare to be immediately due and payable all rent, charges,\npayments, costs and expenses herein reserved for the balance of the term of this\nLease.\n\n (b) An amount equal to the amount of the rent reserved under this\nLease, less the rent, if any, collected by Landlord on reletting the Premises,\nwhich shall be due and payable by Tenant to Landlord on the several days on\nwhich the rent herein reserved would have become payable under this Lease.\n\n (c) In addition to the damages hereinbefore provided for in this\nSection 20, an amount equal to the cost of\n\n (1) placing the Premises in the condition in which Tenant has\nagreed to surrender them to Landlord, and\n\n (2) of performing any other covenant herein contained which\nTenant has agreed to perform, other than the covenant to pay rent.\n\n The damages mentioned in this subdivision (ii) shall become\nimmediately due and payable by Tenant to Landlord upon the termination of this\nLease.\n\n Without any previous notice or demand, separate actions\nmay be maintained by Landlord against Tenant from time to time to recover any\ndamages which, at the commencement of any such action, have then or theretofore\nbecome due and payable to Landlord under this Section 20, without waiting until\nthe end of the term of this Lease.\n\n (3) In the event of such termination of this Lease, or in the\nevent of any default mentioned in Section 20 hereof, and whether or not the\npremises be relet, and whether this Lease be terminated or not, Landlord\nshall, in addition to all other rights and remedies available to it by law or\nequity or by any other provisions hereof, be entitled to declare to be\nimmediately due\n\n\n 15\n\n\n 16\nand payable all rent, charges, payments, costs and expenses herein reserved for\nthe balance of the term of this Lease.\n\n 21. RIGHT TO ASSIGN AND SUBLEASE\n\n Tenant may not assign this Lease or sublet the Premises without the\nprior written consent of Landlord, which consent will not be unreasonably\nwithheld or delayed, provided that in the event of any such assignment with\nconsent, Tenant shall remain liable for the performance of Tenant's obligations\nduring the term hereof and provided further that one-half (1\/2) of any net\nrental received by Tenant (after deducting Tenant's costs in effecting such\nassignment) in excess of the rent reserved under this Lease or one-half (1\/2) of\nany net payment made to Tenant in consideration of such assignment shall be paid\nover to Landlord as additional rent.\n\n Anything contained herein to the contrary notwithstanding, Landlord\nhereby consents to an assignment of this Lease, or a subletting of all or part\nof the Premises, to (a) the parent of Tenant or to a wholly-owned subsidiary of\nTenant or of such parent, (b) to any corporation in whom or with which Tenant\nmay be merged or consolidated, provided that the net worth of the resulting\ncorporation is at least equal to the greater of (i) the net worth of Tenant on\nthe date hereof, or (ii) the net worth of Tenant immediately prior to such\nmerger or consolidation, or (c) to any entity to whom Tenant sells all or\nsubstantially all of its assets, provided that such entity expressly assumes all\nof Tenant's obligations hereunder.\n\n 22. INSPECTION BY LANDLORD, ETC.\n\n Landlord and its agents shall have the right at all reasonable times\nduring the term, upon reasonable prior notice (except in the event of an\nemergency, in which case Landlord shall attempt, but shall not be required, to\ngive notice) and during business hours, to enter the Premises for the purpose of\nperforming the maintenance and repairs required of it by this Lease and for the\npurpose of inspecting the same and, during the last one hundred eighty (180)\ndays of the term, to show both the interior and exterior of the Premises to\nprospective tenants or purchasers and to place \"For Rent\" of \"For Sale\" signs\nthereon.\n\n 23. ASSIGNMENT OF LANDLORD'S INTEREST\n\n If Landlord should ever assign this Lease or the rents hereunder to\na creditor as security for a debt, Tenant shall, after notice of such assignment\nand upon demand by Landlord or the assignee, pay all sums thereafter becoming\ndue Landlord hereunder to the assigned (from and after the time Tenant is\nfurnished with such assignee's address) and furnish such evidence of insurance\ncoverages required hereunder as the lender may reasonably require so as to\nprotect the assignee's interest as it may appear and furnish such assurances to\nthe assignee.\n\n 24. ATTORNMENT\n\n In the event the Premises are sold at any foreclosure sale or sales,\nby virtue of any judicial proceedings or otherwise, this Lease shall continue in\nfull force and effect and Tenant agrees \n\n\n 16\n\n\n 17\nupon request to attorn to and acknowledge the foreclosure purchaser or\npurchasers at such sale as Landlord hereunder.\n\n 25. SUBORDINATION\n\n This Lease shall be subject and subordinate to the lien of any\npresent or future mortgage or mortgages upon the Premises or any property of\nwhich the Premises are a part irrespective of the time of execution or the time\nof recording of any such mortgage or mortgages provided that in the event of\nforeclosure or other action taken under any mortgage by the holders thereof,\nthis Lease and the rights of Tenant hereunder shall not be disturbed but shall\ncontinue in full force and effect so long as Tenant shall not be in default\nhereunder. The word \"mortgage\" as used herein includes mortgages, deeds of trust\nor other similar instruments and modifications, extensions, renewals and\nreplacements thereof and any and all advances thereunder. Tenant hereby agrees\nto execute such agreement substantially in the same form as EXHIBIT F.\n\n 26. MORTGAGEE PROTECTION CLAUSE\n\n Tenant agrees to give any Mortgagees and\/or Trust Deed Holders, by\nregistered mail, a copy of any notice of default served upon the Landlord,\nprovided that prior to such notice, Tenant has been notified in writing (by way\nof Notice of Assignment of Rents and Leases, or otherwise) of the addresses of\nsuch Mortgagees and\/or Trust Deed Holders. Tenant further agrees that if\nLandlord shall have failed to cure such default, then the Mortgagees and\/or\nTrust Deed Holders shall have thirty (30) days from the date of receiving notice\nwithin which to cure such default or if such default cannot be cured within that\ntime, then such additional time as may be necessary if within such thirty (30)\ndays any Mortgagee and\/or Trust Deed Holder has commenced and is diligently\npursuing the remedies necessary to cure such default (including but not limited\nto commencement of foreclosure proceedings if necessary to effect such cure), in\nwhich event this Lease shall not be terminated while such remedies are being so\ndiligently pursued.\n\n 27. ATTORNMENT AND NON-DISTURBANCE\n\n The Tenant shall, promptly at the request of the Landlord or the\nholder of any Mortgage (herein referred to as \"Mortgagee\"), execute, enseal,\nacknowledge and deliver such further instrument or instruments\n\n (a) evidencing such subordination as the Landlord or such Mortgagee\ndeems reasonably necessary or desirable, and\n\n (b) (at such Mortgagee's request) attorning to such Mortgagee,\nprovided that such Mortgagee agrees with the Tenant that such Mortgagee will, in\nthe event of a foreclosure of any such mortgage or deed of trust (or termination\nof any such ground lease), take no action to interfere with the Tenant's right\nhereunder, except on the occurrence of an event of default.\n\n 28. QUIET ENJOYMENT; NON-DISTURBANCE\n\n\n 17\n\n\n 18\n Landlord covenants and warrants to Tenant that Tenant on paying the\nrent provided for in this Lease and performing its covenants herein set forth,\nshall peaceably and quietly have, hold and enjoy the Premises and all\nappurtenances thereon during the full term of this Lease.\n\n 29. FAILURE TO INSIST UPON STRICT PERFORMANCE\n\n The failure of either party to insist upon a strict performance of\nany of the terms, conditions and covenants herein contained shall not be deemed\na waiver of any rights or remedies that either party may have and shall not be\ndeemed a waiver of any subsequent breach or default in the terms, conditions and\ncovenants herein contained. This instrument may not be changed, modified or\ndischarged orally.\n\n 30. TENANT HOLDING OVER\n\n In the event that Tenant holds over at the expiration of the\noriginal term of this Lease or at the earlier termination thereof, Landlord\nshall be entitled to all the remedies now or hereafter in effect in New Castle\nCounty, Delaware relating to the speedy recovery of possession of lands and\ndamages for wrongful detention.\n\n Any holding over after the expiration of the term hereof, without\nthe written consent of Landlord shall be construed to be a tenancy from month to\nmonth at one and one-half (1-1\/2) times the monthly rent hereinbefore specified,\nand shall otherwise be on the terms and conditions hereinbefore specified. Such\ntenancy from month to month shall continue until either party shall give at\nleast thirty (30) days notice in writing to the other terminating such tenancy.\n\n 31. UTILITY LINES AND FACILITIES\n\n Landlord reserves the right to place in, over, below and upon the\nPremises (in such manner as to not interfere with Tenant's use of the Premises),\nutility lines, conduits, pipes, tunneling and the like to service the Premises\nand any other premises in the warehouse building and to use, replace, repair and\nmaintain such utility lines, conduits, pipes, tunneling and the like, in, over,\nbelow and upon the Premises in such manner as will not interfere with Tenant's\nenjoyment thereof, provided that Landlord shall use its best efforts to see that\nsuch work does not interfere with the ongoing business and operations of Tenant,\nthat such work shall be done expeditiously and in a workmanlike manner, and\nfurther that the Premises shall, upon conclusion of the work, be restored to\nsubstantially the same conditions as they were prior to the commencement of the\nwork.\n\n 32. SIGNS\n\n Tenant shall not place any signs on the exterior of the Premises\nwithout the prior written consent of Landlord, which consent shall not be\nunreasonably withheld.\n\n\n 18\n\n\n 19\n 33. END OF TERM\n\n Upon the expiration or other termination of the term of this lease,\nTenant shall quit the Premises and surrender same to Landlord, broom clean, in\ngood order and condition ordinary wear and tear and damage or destruction by\nfire or other casualty or the elements or any other cause beyond Tenant's\nreasonable control excepted and Tenant shall remove all of its property.\n\n 34. SUCCESSORS AND ASSIGNS\n\n Except as hereinabove expressly otherwise provided, this Lease shall\nbind and inure to the benefit of the parties hereto and their respective\nsuccessors and assigns.\n\n 35. NOTICES\n\n All notices to Tenant under this lease shall be conclusively\npresumed to have been delivered upon personal or overnight courier delivery or\nthree business days after mailing by United States mail, first class, certified\nor registered, and postage prepaid, addressed to Tenant, at 1516 Second Avenue,\nSeattle, WA 98101, Attn: General Counsel, or to such other address as Tenant may\nin writing from time to time designate. All notices to Landlord hereunder shall\nbe conclusively presumed to have been delivered upon personal or overnight\ncourier delivery or three business days after mailing by United States mail,\nfirst class, certified or registered, and postage prepaid, addressed to\nLandlord, at 4001 Kennett Pike, Suite 222, Greenville, DE 19807, Attn.: Paul\nMcConnell or to such other address as Landlord may in writing from time to time\ndesignate.\n\n 36. AGENCY\n\n Landlord and Tenant represent to each other that they have dealt\nwith no brokers in connection with this transaction other than TC Northeast\nMetro, Inc., who represents Tenant (the \"Broker\"). Landlord shall be responsible\nfor all commissions and fees due to the Broker. The Broker, any cooperating\nbroker, and any salesperson working with either, without breaching the fiduciary\nresponsibilities to Landlord, may, among other services, provide a potential\nlessee with information about the attributes of properties and available\nfinancing, show properties, and assist in preparing an offer to lease. The\nBroker, any cooperating broker, and any salesperson working with either, also\nhave the duty to respond accurately and honestly to a potential lessee's\nquestions and disclose material facts about properties, submit promptly any\noffers to lease and offer properties without unlawful discrimination.\n\n 37. REVIEW OF LEASE; NON-DISTURBANCE AGREEMENT\n\n Landlord represents to Tenant that Trustees of New Castle Common are\nthe sole owner in fee simple of the land described in Exhibit B on which the\nBuilding will be built and that Landlord has or will prior to the commencement\nof this Lease, enter into a ground lease of the Premises with the Trustees of\nNew Castle Common. Landlord shall enter into a ground lease of the Premises with\nthe Trustees of New Castle Common by no later than thirty (30) days after\nexecution of this Lease, and Landlord shall send a copy of the fully executed\nground lease to Tenant within\n\n\n 19\n\n\n 20\nsuch period. If Landlord does not enter into the ground lease within such time,\nTenant may terminate this Lease at any time within thirty (30) days thereafter.\nLandlord shall also obtain from the Trustees of New Castle Common within such\nthirty (30) day period a Subordination, Nondisturbance and Attornment Agreement\nfor Tenant's benefit, substantially in the form of EXHIBIT F and otherwise in\nrecordable form, executed by the Trustees of New Castle Common, and if Landlord\nfails to obtain such agreement, Tenant may terminate this Lease at any time\nwithin thirty (30) days thereafter. Landlord further represents to Tenant that\nthe only mortgage or trust deed which will encumber the land will be held by PNC\nBank (\"Lender\") who will be providing construction financing. Landlord\nrepresents that Lender has approved this Lease, and that within thirty (30) days\nfollowing the execution of this Lease by both parties, Landlord will deliver to\nTenant a Subordination, Non-Disturbance and Attornment Agreement, substantially\nin the form of Exhibit G, executed by Lender. In the event that Landlord should\nfail to deliver such agreement to Tenant within such thirty (30) day period,\nTenant shall, upon written notice to Landlord, have the right to terminate this\nLease.\n\n 38. RECORDING\n\n Landlord and Tenant agree to execute a Memorandum of Lease which may\nbe recorded among the Land Records of New Castle County, Delaware, at the\nexpense of the party offering the Memorandum of Lease for recording.\n\n 39. TENANT ESTOPPEL CERTIFICATES\n\n From time to time during the term of this Lease Tenant agrees to\nsubmit to Landlord's lender, within thirty (30) days following written demand\ntherefor, a certificate substantially in the form attached hereto as EXHIBIT H.\n\n 39. CAPTIONS AND HEADINGS\n\n The captions and headings throughout this Lease are for convenience\nand reference only, and the words contained therein shall in no way be held or\ndeemed to define, limit, describe, explain, modify, amplify or add to the\ninterpretation, construction or meaning of any provision of or the scope or\nintent of this Lease nor in any way affect this Lease.\n\n 40. ENVIRONMENTAL MATTERS\n\n (a) Tenant represents and warrants that, except for the routine use\nof cleaning supplies, packing materials, inks and other materials normally used\nin a warehouse, distribution and office facility (all of which shall be used by\nTenant in compliance with laws), the use of the Premises will not result in or\ninvolve the use, generation, manufacture, refining, transportation, treatment,\nstorage, handling or disposal of, or the conduct or performance of any activity\nin connection with any hazardous substance or hazardous waste, as such terms are\ndefined in the Delaware General Waste Management Act, 7 Del. C., Chapter 60, the\nDelaware Hazardous Waste Management Act, 7 Del. C., Chapter 63, the Federal\nResource Sections 6690, et seq., the Federal Comprehensive Environmental \nResponse, Compensation and Liability Act of 1980, as amended, 42\n\n\n 20\n\n\n 21\nU.S.C. Sections 9601, et seq., and the regulations promulgated under said Acts,\nwhich would subject the Premises or Landlord to any liability, including\ndamages, penalties or fines, or any lien on the Premises under such Acts or\nunder the Federal common law or the common law of the State of Delaware.\n\n (b) Tenant shall indemnify and hold harmless Landlord, its\ndirectors, officers, shareholders, partners and any of its employees, against\nall costs incurred (including, without limitation, amounts paid pursuant to\npenalties, fines, orders, judgment or settlements and attorney's fees\noriginating out of any claim made by Federal, State or local agencies or\ndepartments or private litigants or third parties) with respect to violations or\nalleged violations by Tenant, its agents, employees or invitees of environmental\nor health laws, rules, regulations, orders or common law, as said laws, etc. are\nset forth above or otherwise.\n\n (c) Landlord shall indemnify and hold harmless Tenant, its officers,\nshareholders, directors, partners and any of its employees against all costs\nincurred (including, without limitation, amounts paid pursuant to penalties,\nfines, orders, judgments or settlements and attorneys' fees), arising out of any\nclaim made by Federal, State or local agencies or departments or private\nlitigants or third parties with respect to violations by Landlord, its agents,\nemployees or invitees of environmental or health laws, or regulations, orders or\ncommon law as said laws, etc., are set forth above, or otherwise, except to the\nextent such violations or alleged violations are caused by or in whole or in\npart related to Tenant or Tenant's use of the Premises. As used herein, Tenant\nshall mean and include Tenant and Tenants agents, employees and invitees.\n\n 41. JOINT AND SEVERAL LIABILITY\n\n The entities executing this Lease as Landlord shall be jointly and\nseverally liable for all obligations of the Landlord hereunder.\n\n\n 21\n\n\n 22\n WITNESS the execution of this Lease under seal by the parties hereto\nas of the date first above written. \n\n LANDLORD:\n\n MCCONNELL DEVELOPMENT, INC.\nATTEST: a Delaware corporation\n\n\n\n\/s\/ HENRY WINCHESTER By: \/s\/ PAUL M. MCCONNELL \n------------------------------- -------------------------------(Seal)\n Paul M. McConnell\n President\n\n 700 FRENCHTOWN DEVELOPMENT\n CORPORATION, a Delaware corporation\n\n\/s\/ HENRY WINCHESTER By: \/s\/ PAUL M. MCCONNELL\n------------------------------- -------------------------------(Seal)\n Paul M. McConnell \n President\n\n\n TENANT:\n\nATTEST: AMAZON.COM, INC., a Delaware corporation\n\n\n\/s\/ LAWRENCE D. BARRETT By: \/s\/ FERNANDO DUENAS\n------------------------------- -------------------------------(Seal)\n Fernando Duenas\n Vice President Operations\n\n\n 22\n\n\n 23\n GUARANTEE DEPOSIT BY TENANT\n\n On the Phase I Commencement Date, Tenant shall deposit Thirty-Seven\nThousand Dollars ($37,000.00) with Landlord as security for the full and\nfaithful performance for each and every item, provision, covenant and condition\nof this Lease. On the Phase II Commencement Date, Tenant shall deposit with\nLandlord an additional Thirty-Seven Thousand Dollars ($37,000.00). Both deposits\nshall collectively be referred to herein as the \"Security.\" In the event Tenant\ndefaults in respect of any of the terms, provisions, covenants, or conditions of\nthis Lease, including but not limited to the payment of rent, Landlord may use,\napply or retain the whole or any part of such Security for the payment of any\nrent in default or for any other sum which Landlord may spend or be required to\nspend by reason of Tenant's default. In the event Landlord applies any part of\nsaid Security to cure any default of Tenant, Tenant shall upon demand deposit\nwith Landlord the amount so applied so that Landlord shall have the full deposit\non hand at all times during the term of this Lease. Should Tenant faithfully and\nfully comply with all of the terms, provisions, covenants and conditions of this\nLease, the Security or any balance thereof shall be returned to Tenant or at the\noption of Landlord, to the last assignee of Tenant's interest in this Lease at\nthe expiration of the term hereof. Landlord shall deposit the Security in a\nsegregated, interest-bearing trust account. Tenant shall be entitled to all\ninterest on said Security after deduction of all account maintenance fees which\nmay be assessed against the account by the financial institution where the\naccount is located, which interest shall be paid to Tenant upon request, but no\nmore frequently than annually.\n\n\n In the event of a sale of the Building, Landlord shall have the\nright to transfer the aforesaid Security to the purchaser of the Building or to\nTenant and Landlord shall thereupon be released by Tenant all liability for the\nreturn of said Security; and Tenant agrees to look solely to the new owner of\nthe Building for the return of said Security; and it is agreed that the\nprovisions hereof shall apply to every transfer or assignment made of the\nSecurity to a new owner of the Building.\n\n Tenant further covenants that it will not assign or encumber or\nattempt to assign or encumber the monies deposited herein as Security and that\nneither Landlord nor its successors or assign shall be bound by any such\nassignment, encumbrance, attempted assignment, or attempted encumbrance.\n\n\nLANDLORD: McConnell Development\n 700 Frenchtown Development\n Corporation \n \n\nBy \/s\/ PAUL MCCONNELL\n -------------------------- \n Name: Paul McConnell\n Title: President\n\n\n 23\n\n\n 24\n EXHIBIT A\n SITE PLAN\n\n\n 1\n\n\n 25\n EXHIBIT B\n TENANT APPROVED FLOOR PLAN\n\n\n\nAPPROVED BY TENANT:\n SIGNATURE DATE\n\n\n 2\n\n\n 26\n EXHIBIT C\n TENANT IMPROVEMENTS\n\n Tenant shall lease Premises on a \"turn-key\" basis, in accordance \nwith mutually acceptable building specifications, which specifically include \n(at Landlord's cost):\n\n o Approximately 10,000 square feet of finished office space\n\n o E.S.F.R. rated fire protection sprinkler system (100% wet)\n\n o Nineteen (19) 8' x 10' tailgate dock doors (48\"-high), each with\n hydraulic levelers (6' x 8', 20,000 lb. minimum capacity) and \n Maquire dock shelters\n\n o Installation of Cambridge wall mounted gas fired furnaces (model\n CH115AGA). Heating design 60 degrees F @ 0 degrees F 4SHRAE\n design.\n\n o 400-watt metal halide fixtures with 25' candle intensity 3'\n A.F.F.\n\n o 150 car parking with 50 future spaces available \n\n o One 12' x 14' drive-in door\n\n The building specifications which have been agreed upon by Landlord\nand Tenant are identified by reference to the following plans, drawings and\nspecifications:\n\n o Site Drawings by McBride & Ziegler \n Sheet Nos. 1, 2, 3 & 4\n dated July 13, 1997\n\n o Architectural Drawings by RHJ Associates\n dated August 8, 1997\n A-1 through A-10\n\n o Tenant Improvement\/Office Drawings \n dated 8\/21\/97 \n T-1 through T-4\n\n o Structural Drawings by O'Donnell & Naccarato, Inc. \n S-1 through S-4\n\nLandlord agrees that it shall not amend, modify or deviate from the approved\nplans and specifications without Tenant's prior written consent.\n\n\n 3\n\n\n 27\n EXHIBIT \"D\"\n SPACE PLAN\n\n\n 4\n\n\n 28\n EXHIBIT E\n\n The following work will be required in accordance with the\nmaintenance contract required in Paragraph IIB of the attached Lease:\n\n 1. Check performance of all major components.\n\n 2. Lubricate moving parts as required.\n\n 3. Check refrigerant charges (during cooling season).\n\n 4. Inspect for oil and refrigerant leaks.\n\n 5. Check operating and safety controls.\n\n 6. Check pressures and temperatures.\n\n 7. Inspect condensers.\n\n 8. Inspect fans, motors, and starters.\n\n 9. Tighten electrical connections at equipment.\n\n 10. Test amperages and voltages.\n\n 11. Check belts and drives.\n\n 12. Change oil and filters, or dryers, as required (at least\n four times per year).\n\n 13. Check temperature on control system.\n\n 14. Thoroughly inspect heat exchanger.\n\n\n 5\n\n\n 29\n EXHIBIT F\n\n SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT \n\n This Subordination, Non-disturbance and Attornment (\"Agreement\") is\nmade as of the ________ day of _________, 19__, Trustees of New Castle Common\n(\"Ground Lessor\") and Amazon.com (\"Tenant\").\n\nRECITALS\n\n A. Ground Lessor is the owner of the property (the \"Property\") more\nparticularly described in EXHIBIT A hereto.\n\n B. Ground Lessor and McConnell Development, Inc. and Frenchtown\nDevelopment Corporation (collectively \"Landlord\"), entered into a ground lease\ndated as of _________, 19__, covering the Property (the \"Ground Lease\").\n\n C. Landlord and Tenant have entered into a lease dated _______, 1997\n(the \"Lease\") pursuant to which Landlord agreed to lease to Tenant and Tenant\nagreed to lease from Landlord, the Property and all improvements thereon\n(collectively, the \"Premises\").\n\n D. Tenant wishes to obtain from Ground Lessor assurances that\nTenant's possession of the Premises will not be disturbed in certain\ncircumstances, and Ground Lessor is willing to provide such assurances to\nTenant, upon and subject to the terms and conditions of this Agreement.\n\n NOW, THEREFORE, for $10.00 and other valuable consideration\nexchanged between Ground Lessor and Tenant, the receipt and sufficiency of such\nconsideration being hereby acknowledged, Ground Lessor and Tenant agree as\nfollows:\n\n 1. SUBORDINATION\n\n The Lease is and will remain subject and subordinate in all respects\nto the Ground Lease.\n\n 2. NON-DISTURBANCE AGREEMENT\n\n As long as Tenant is not in default beyond any applicable grace\nperiod in the payment of rent, additional rent or other charges or in the\nperformance of any of the terms or conditions of the Lease, Tenant's rights\nunder the Lease and its possession of the Premises will not be interfered with\nor disturbed by Ground Lessor during the term of the Lease (including any\nrenewal or extension term) following the termination of the Ground Lease as a\nresult of Landlord's default thereunder.\n\n 3. ATTORNMENT AGREEMENT\n\n\n 6\n\n\n 30\n If a termination of the Ground Lease occurs, Ground Lessor and\nTenant will be bound to each other, as landlord and tenant, respectively, under\nall of the terms and conditions of the Lease for the balance of the term thereof\n(including any renewal or extension term), and Tenant hereby attorns to Ground\nLessor as its landlord, such attornment to be effective and self-operative,\nwithout the execution of any other instruments on the part of either party\nhereto, immediately upon a termination of the Ground Lease.\n\n 4. GROUND LESSOR'S LIABILITY\n\n Notwithstanding any other provision of this Agreement, Ground Lessor\nwill not in any way be:\n\n (a) liable for acts or omissions of any prior landlord (including\nLandlord);\n\n (b) subject to offsets or defenses that Tenant might have had\nagainst any prior landlord (including Landlord);\n\n (c) bound by rent, additional rent or other charges that Tenant\nmight have paid for more than 30 days in advance to any prior landlord\n(including Landlord);\n\n (d) bound by any amendment or modification of the Lease made without\nGround Lessor's prior written consent (except to the extent that the Lease may\nspecifically contemplate any amendment or modification thereof); or\n\n (e) responsible for money or other security delivered to Landlord\npursuant to the Lease but not subsequently received by Lender.\n\n 5. NO LEASE MODIFICATION OR CLAIMS\n\n Tenant hereby confirms that the Lease has not been modified or\namended and is in full force and effect without any claims or default, offset or\ndeduction by Tenant.\n\n 6. TENANT'S RIGHT TO CURE DEFAULT\n\n Notwithstanding any provision of the Lease, no notice by Ground\nLessor to Landlord of any breach or default by Landlord under the Lease will be\neffective unless and until\n\n (a) a copy of the notice is received by Tenant, and\n\n (b) a reasonable period of time has elapsed following Tenant's\nreceipt of such copy, during which period Tenant will have the right, but will\nnot be obligated, to cure the breach or default.\n\n 9. NOTICES\n\n To be effective, any notice or other communication given pursuant to\nthis Agreement\n\n\n 7\n\n\n 31\nmust be in writing and sent postpaid by United States registered or certified\nmail with return receipt requested. Rejection or other refusal to accept, or\ninability to deliver because of changed address of which no notice has been\ngiven, will constitute receipt of the notice or other communication. For\npurposes hereof, Ground Lessor's address is:\n\n\n\n\n Attn.:\n\n\n\n\n and Tenant's address is:\n\n\n\n\n Attn.:\n\n At any time(s), each party may change its address for the purposes\nhereof by giving the other party a change of address notice in the manner stated\nabove.\n\n 10. Entire Agreement, Etc.\n\n This Agreement (a) is to be construed and enforced in accordance\nwith the laws of the State of Delaware, (b) contains the entire understanding of\nGround Lessor and Tenant regarding matters dealt with herein (any prior written\nor oral agreements between them as to such matters being superseded hereby), (c)\ncan be modified or waived in whole or in part only by a written instrument\nsigned on behalf of the party against whom enforcement of the modification or\nwaiver is sought, and (d) will bind and inure to the benefit of the parties\nhereto and their respective successors and assigns.\n\n IN WITNESS WHEREOF, this Agreement has been duly signed as of the\ndate first above written.\n\n (The foregoing is signed, witnessed, and notarized on behalf of\nGround Lessor and Tenant.)\n\n\n\n 8\n\n\n 32\n EXHIBIT G\n\n\n\n\n\n\n\n\n\n\n 9\n 33\n Tax Parcel I.D. No.\n \n --------------------------\n\n --------------------------\n\n This document prepared by:\n\n PNC Bank, Delaware\n 222 Delaware Avenue\n Wilmington, DE 19801\n\nSUBORDINATION, NON-DISTURBANCE PNC Bank\nAND ATTORNMENT AGREEMENT\n\n\n THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this\n\"AGREEMENT\") is made and entered into as of this ________ day of \n______________, _______, by and among PNC BANK, DELAWARE (the \"MORTGAGEE\"),\nwith an address at 222 Delaware Avenue, Wilmington, DE 19801, ___________\n_________________________________________ (the \"LANDLORD\"), with an address at\n____________________________________________________________________, and \n__________________________________________________________ (the \"TENANT\") with\nan address at __________________________________________________;\n\n WITNESSETH THAT:\n\n WHEREAS, the Landlord is the fee owner of that certain real property\nlocated in __________________________, _______________________________ County,\nDelaware, and more particularly described in Exhibit \"A\" attached hereto (the\n\"PROPERTY\"); and\n\n WHEREAS, pursuant to a Loan Agreement or Letter Agreement and\/or a\npromissory note dated __________________ ________, _______ (collectively, the\n\"LOAN DOCUMENTS\"), the Mortgagee made a loan to the Landlord (or to\n_______________________________________________). The obligations under the\nLoan Documents are secured by a mortgage instrument covering the Property (the\n\"MORTGAGE\") dated _____________________ ________, _______, from the Landlord to\nthe Mortgagee, and recorded or to be recorded in the real estate records of the\naforesaid County and State, and are also secured by an assignment of the\nLandlord's interest in all leases of the Property (the \"ASSIGNMENT\") dated\n\n FORM 12F - DE REV. 12\/95\n 34\n_________________ _________, _________, and recorded or to be recorded in the\nreal estate records of the aforesaid County and State; and\n\n WHEREAS, under the terms of a certain Lease Agreement dated _______________\n_______, (the \"LEASE\"), the Landlord leased to the Tenant all or certain\nportions of the Property described in the Lease (the \"DEMISED PREMISES\") under\nthe terms and conditions more particularly described therein; and\n\n WHEREAS, the Mortgage provides that the Lease shall be subordinate to the\nMortgage and the parties hereto desire to confirm such subordination and to\nestablish rights of quiet and peaceful possession for the benefit of the Tenant\nunder the Lease and to define the terms, covenants and conditions precedent for\nsuch rights.\n\n NOW, THEREFORE, in consideration of the mutual promises and covenants\nherein contained and intending to be legally bound, the parties hereto agree as\nfollows:\n\n 1. The Lease is and shall be subject and subordinate in all respects to\nthe Mortgage and the Assignment.\n\n 2. Tenant acknowledges notice of and consents to the Mortgage, the\nAssignment and the terms and conditions thereof. Tenant agrees to continue\nmaking payments of rent and other amounts owed under the Lease to the Landlord,\nand to otherwise recognize the rights of the Landlord under the Lease, until\nnotified otherwise in writing by the Mortgagee, as herein provided, and after\nreceipt of such notice the Tenant agrees thereafter to make all such payments\ndirectly to the Mortgagee, as provided in the Mortgage and the Assignment,\nwithout any duty of further inquiry on the part of the Tenant.\n\n 3. In the event of any act or omission of the Landlord which would give\nthe Tenant the right, immediately or after lapse of time, to cancel or\nterminate the Lease, or to claim a partial or total eviction or to exercise any\nother remedy, the Tenant shall not exercise such right or remedy (a) until it\nhas given written notice of such act or omission to the Mortgagee; and (b)\nuntil a reasonable period for remedying such act or omission shall have elapsed\nfollowing the later of (i) the giving of such notice or (ii) the time when the\nMortgagee shall have become entitled under the Mortgage and the Assignment to\nremedy the same (which reasonable period shall in no event be less than the\nlonger of (x) 30 days or (y) the period to which the Landlord would be\nentitled under the Lease or otherwise, after similar notice, to effect such\nremedy), provided that the Mortgagee shall give the Tenant written notice of\nits intention to, and shall commence and continue with due diligence to, remedy\nsuch act or omission. Notwithstanding the foregoing, the Mortgagee shall have\nno obligation to remedy or to continue to remedy any such act or omission.\n\n 4. Provided the Lease shall at all times be in full force and effect and\nthe Tenant shall not be in default thereunder, then:\n\n (a) The right of possession by the Tenant to the Demised Premises and any\nor all of the Tenant's rights under the Lease shall not be affected in any way\nor disturbed by the Mortgagee (or by anyone claiming by, through or under the\nMortgagee) in the exercise of any of the Mortgagee's rights under the Loan\nDocuments, the Mortgage or the Assignment, or otherwise by law provided, the\nTenant shall not be named as a party defendant to any foreclosure of the lien\nof the Mortgage for the purpose of terminating the Lease, and the Tenant shall\nnot, by any such foreclosure, be in any other way foreclosed from its rights\nunder the Lease.\n\n (b) If the Mortgagee or its successors or assigns comes into possession of\nthe Property (through receivership, as a mortgagee in possession, or otherwise)\nor acquires the leasehold interest of the Landlord by foreclosure of the\nMortgage, or by proceedings under the Loan Documents, deed in lieu or\notherwise, the Lease shall not be terminated by any such foreclosure or\nproceedings; and the Lease shall continue in full force and effect upon the\nTenant's attornment, as hereinafter provided, as a direct lease between the\nTenant and the Mortgagee upon all the terms, covenants, conditions and\nagreements set forth in the Lease.\n\n (c) 4101t0b0s10.25v1P If the Property or the Landlord's leasehold interest \ntherein is sold or otherwise disposed to any right or power contained in the \nLoan Documents or the Mortgage or as a result of proceedings thereon, the Lease\nshall not be terminated or affected thereby, and the Foreclosure Purchaser of \nthe Property or of the Landlord's leasehold interest therein or any person \nacquiring title thereto shall so acquire the Property or such interest, subject\nto the Lease; and the Lease shall continue in full force and effect upon the \nTenant's attornment,\n\n FORM 12F - DE REV. 12\/95\n\n\n -2-\n 35\nas hereinafter provided, as a direct lease between the Tenant and any party\nacquiring title to the Landlord's leasehold interest therein, as aforesaid,\nupon all the terms, covenants, conditions and agreements set forth in the Lease.\n\n 5. If the Mortgagee or any Foreclosure Purchaser shall succeed to the\nrights of the Landlord under the Lease, then the Tenant shall attorn to and\nrecognize the Mortgagee or such Foreclosure Purchaser as the Tenant's landlord\nunder the Lease and the Mortgagee or such Foreclosure Purchaser shall be\nconclusively deemed to have accepted such attornment. Such attornment shall be\nself-operative and effective without execution and delivery of any further\ninstrument, immediately upon the Mortgagee's or any Foreclosure Purchaser's\nsuccession to the interest of the Landlord under the Lease. Upon such\nattornment the Lease shall continue in full force and effect as a direct lease\nbetween the Mortgagee or such Foreclosure Purchaser and the Tenant except that\nthe Mortgagee or such Foreclosure Purchaser shall not be bound by any amendment\nor modification of the Lease made without the Mortgagee's written consent and\nexcept that the Mortgagee or such Foreclosure Purchaser shall not be liable to\nthe Tenant:\n\n (a) For any past act, default or omission on the part of the Landlord\nunder the Lease and the Tenant shall have no right to assert the same or any\ndamages arising therefrom as an offset or defense against the Mortgagee or such\nForeclosure Purchaser;\n\n (b) For the commencement or completion of any construction or any\ncontribution toward construction or installation of any improvements upon the\nDemised Premises, or any expansion or rehabilitation of existing improvements\nthereon, or for restoration of improvements following any casualty not required\nto be insured under the Lease or for the costs of any restoration in excess of\nthe proceeds recovered under any insurance required to be carried under the\nLease; or\n\n (c) For any prepayment of rent, rental security or any other sums\ndeposited with the Landlord under the Lease and not delivered to the Mortgagee\nor such Foreclosure Purchaser.\n\nThe Mortgagee or such Foreclosure Purchaser shall be liable to the Tenant under\nthe Lease only during the Mortgagee's or such Foreclosure Purchaser's period of\nownership, and such liability shall not continue or survive as to the\ntransferor after a transfer by the Mortgagee or such Foreclosure Purchaser of\nits interest in the Lease and the Demised Premises.\n\n 6. All notices, demands, requests, consents, approvals and other\ncommunications required or permitted hereunder must be in writing and will be\neffective upon receipt if delivered personally, or if sent by facsimile\ntransmission with confirmation of delivery, or by nationally recognized\novernight courier service, to a party's address set forth above or to such\nother address as any party may give to the others in writing for such purpose. \n\n 7. No modification, amendment or waiver of any provision of this\nAgreement nor consent to any departure therefrom will be effective unless made\nin a writing signed by the Mortgagee, and then such waiver or consent shall be\neffective only in the specific instance and for the purpose for which given.\n\n 8. This Agreement (including the documents and instruments referred\nto herein) constitutes the entire agreement and supersedes all other prior\nagreements and understandings, both written and oral, among the parties with\nrespect to the subject matter hereof.\n\n 9. This Agreement may be signed in any number of counterpart copies\nand by the parties hereto on separate counterparts, but all such copies shall\nconstitute one and the same instrument.\n\n 10. As used in this Agreement, the word \"Tenant\" shall mean the Tenant\nand\/or the subsequent holder of an interest under the Lease, provided the\ninterest of such holder is acquired in accordance with the terms and provisions\nof the Lease, the word \"Mortgagee\" shall mean the Mortgagee or any subsequent\nholder or holders of the Mortgage and the Assignment, and the word \"Foreclosure\nPurchaser\" shall mean any party other than the Mortgagee acquiring title to the\nProperty by purchase at a foreclosure sale, by deed or otherwise. Subject to\nthe foregoing, this Agreement shall bind and inure to the benefit of the\nLandlord, the Tenant and the Mortgagee, their heirs, legal representatives,\nsuccessors and assigns.\n\n\n -3-\n\n\n\n 36\n 11. This Agreement has been delivered to and accepted by the Mortgagee and\nwill be deemed to be made in the State where the Mortgagee's office indicated\nabove is located. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND\nLIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE\nSTATE WHERE THE MORTGAGEE'S OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS\nCONFLICT OF LAWS RULES, EXCEPT THAT THE REAL PROPERTY LAWS OF THE STATE WHERE\nTHE DEMISED PREMISES ARE LOCATED (IF DIFFERENT FROM THE STATE WHERE THE\nMORTGAGEE IS LOCATED) SHALL GOVERN TO THE EXTENT APPLICABLE.\n\nWITNESS the due execution hereof as a document under seal, as of the date first\nwritten above.\n\n<\/pre>\n
\n
\nWITNESS \/ ATTEST: MORTGAGEE:<\/p>\n PNC BANK, DELAWARE<\/p>\n
By:
\n—————————————————————– ———————————————-
\n (SEAL)
\nPrint Name: Print Name:
\n —————————————————— —————————————<\/p>\n
Title:
\n ——————————————-<\/p>\n
LANDLORD:
\n McConnell Development Corporation, Inc.
\n 700 Frenchtown Development Corporation<\/p>\n
\/s\/ HENRY WINCHESTER III By: \/s\/ PAUL M. McCONNELL
\n—————————————————————– ———————————————-
\n (SEAL)
\nPrint Name: Henry Winchester III Print Name: Paul M. McConnell
\n —————————————————— —————————————<\/p>\n
Title: President
\n ——————————————-<\/p>\n
TENANT:<\/p>\n
——————————————<\/p>\n
\/s\/ LAWRENCE D. BARRETT By: \/s\/ OSWALDO F. DUENAS
\n—————————————————————– ———————————————-
\n (SEAL)
\nPrint Name: Lawrence D. Barrett Print Name: Oswaldo F. Duenas
\n —————————————————— —————————————<\/p>\n
Title: Vice President
\n ——————————————-<\/p>\n
<\/c><\/s><\/table>\n
– 4 –
\n 37
\n EXHIBIT H<\/p>\n
TENANT ESTOPPEL CERTIFICATE<\/p>\n
Lessor:
\nLessee:<\/p>\n
Identification of Leased Premises: Approximately _____-square-feet within a
\n____________ warehouse and office building on land known as _______________
\n________________________________________________________________________________
\n__________________________________________ as more fully set forth in the lease.<\/p>\n
Date of Original Lease:<\/p>\n
Date(s) of any amendments:<\/p>\n
The undersigned, the Tenant named above of the premises
\n identified above (the “Premises”) to induce ____________ (the “Lender”)
\n to make a loan to Landlord hereby certifies to Lender the following:<\/p>\n
1. The undersigned has accepted and is in possession of and
\n occupies the Premises under the Lease, which is in full force and
\n effect. The initial term of the Lease commenced on 198__.<\/p>\n
2. There have been no modifications or changes in the Lease,
\n except by those amendments listed above.<\/p>\n
3. The undersigned is paying the full lease rental, which on the
\n rental payment due in ___________, 19__ is _________ basic minimum rent
\n per month, and is also paying its proportionate share (___%) of real
\n estate taxes, insurance premiums and expenses of snow removal, parking
\n lot maintenance and grass cutting.<\/p>\n
4. No rent or other sum payable under the Lease has been paid
\n for more than thirty days in advance of its due date.<\/p>\n
5. To the knowledge of Tenant, the Landlord is not in default
\n under the Lease and the undersigned has no defense, setoff or
\n counterclaim against Landlord under the Lease or otherwise.<\/p>\n
6. The undersigned has not assigned, mortgaged or encumbered the
\n Tenant’s interest under the Lease.<\/p>\n
7. Tenant acknowledges receipt of notice that all of the
\n Landlord’s interest in the Lease has been assigned to Lender as further
\n security for one or more loans to Landlord.<\/p>\n
10
\n 38
\n 8. These statements, agreements, representations and acknowledgements
\nshall bind the undersigned, its successors and assigns and the undersigned shall
\ndeliver a copy hereof to any assignee of its interest in the Lease.<\/p>\n
IN WITNESS WHEREOF, the undersigned has caused this Estoppel Certificate
\nto be duly executed this ___ day of ____________, 19__.<\/p>\n
ATTEST:<\/p>\n
(Name of Lessee)<\/p>\n
By<\/p>\n
Name:
\n Title:<\/p>\n
11<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6645],"corporate_contracts_industries":[9492],"corporate_contracts_types":[9586,9579],"class_list":["post-41903","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-amazoncom-inc","corporate_contracts_industries-retail__books","corporate_contracts_types-land__de","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41903","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41903"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41903"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41903"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41903"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}