\n A Description of Parcel A Section 1<\/p>\n B Title Matters Section 1<\/p>\n
C Leasehold Improvement Agreement Section 1<\/p>\n
D Description of Parcel B Section 1<\/p>\n
E Description of Parcel C Section 1<\/p>\n
F Expansion Space Improvement Agreement Section 1<\/p>\n
G Description of Parcel D Section 1<\/p>\n
H Warranties Section 12.4<\/p>\n
I Confidentiality Agreement Section 21.1<\/p>\n
J Subordination Agreement Section 30.2<\/p>\n
K Estoppel Letter Section 32.1<\/p>\n
L Environmental Indemnity Section 30.3<\/p>\n
M Illustrative Amortization
\n Schedule Section 9.1(d)<\/p>\n
N Preliminary Site Drawing Section 1
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
iv<\/p>\n
LEASE<\/p>\n
This AGREEMENT OF LEASE is made and entered into as of October 13,
\n1994, by and between CTC INVESTMENTS LIMITED, a Florida limited partnership
\nhaving an office at 9665 Wilshire Blvd., Suite 200, Beverly Hills, California
\n90212 (“LANDLORD”), and COACH DISTRIBU TION COMPANY, a Delaware corporation
\nhaving an office at 410 Commerce Boulevard, Carlstadt, New Jersey 07072
\n(“TENANT”), with the full guaranty of Tenant’s obligations by Sara Lee
\nCorporation, a Maryland corporation (“GUARANTOR”).<\/p>\n
W I T N E S S E T H:<\/p>\n
It is hereby mutually covenanted and agreed by and between the
\nparties hereto that this Agreement of Lease is made and entered into by them
\nupon the terms, covenants and conditions hereinafter set forth, and that for
\ngood and valuable consideration (the receipt and sufficiency of which are
\nacknowledged by both of them) they agree as follows.<\/p>\n
ARTICLE 1
\n CERTAIN DEFINITIONS<\/p>\n
The terms defined in this ARTICLE 1 shall, for all purposes of this
\nLease, have the following meanings:<\/p>\n
“ADDITION” shall mean, at any time, such of the First Parcel B
\nAddition, the Second Parcel B Addition, and the Office Facility Addition (if
\nany) as to which Tenant shall theretofore duly and timely have exercised its
\noption rights and become the tenant hereunder as set forth in ARTICLE 45
\nhereof.<\/p>\n
“AFFILIATE,” when used with respect to any Person (hereinafter
\ndefined), shall mean any other Person which, directly or indirectly,
\ncontrols, is controlled by or is under common control with such Person. For
\npurposes of the foregoing definition, “CONTROL” (including “control by” and
\n“under common control with”) shall mean ownership of fifty percent (50%) or
\nmore of each class of the authorized and outstanding stock of a corporation
\nand fifty percent (50%) or more of all of the interests in a partnership,
\ntrust or other business entity (determined without regard to cash flow
\npreferences and similar items).<\/p>\n
“ASSOCIATION” shall mean the Jacksonville International Tradeport
\nOwner’s Association, Inc., a Florida non-profit corporation, and its
\nsuccessors and assigns.<\/p>\n
“BUILDINGS” shall mean and include, collectively, at any time, all
\nbuildings (including, without limitation, footings, foundations, building
\nsystems, and the interior of such buildings), structures, Equipment
\n(hereinafter defined), fixtures, and other improvements and appurtenances of <\/p>\n
every kind and description then erected, constructed, placed or existing upon
\nthe Land (hereinafter defined). “BUILDING” shall mean and refer to any one of
\nthe Buildings.<\/p>\n
“BUSINESS DAYS” shall mean all days which are not a Saturday, Sunday
\nor a day observed as a legal holiday by either the State of Florida, the
\nState of California or the federal government.<\/p>\n
“CAPITAL IMPROVEMENT” shall have the meaning provided in SECTION
\n13.1.<\/p>\n
“CC&R’S” shall mean and include, collectively, the following: City
\nof Jacksonville Resolutions 87-1009-572, 88-448-463, 88-1223-541 and
\n91-394-202; the Jacksonville International Tradeport (Phase One – Northeast
\nQuadrant) Declaration of Covenants, Conditions, Restrictions and Easements
\nmade as of July 24, 1990 by Wilma\/ Skyland Joint Venture, Ltd., as amended
\nand recorded against the Premises in the real estate records of Duval County,
\nFlorida, from time to time; Notice of Adoption of a Development Order
\nrecorded in Volume 6644, page 922, of the real estate records of Duval
\nCounty, Florida; Amendment to Preliminary Development Agreement recorded in
\nVolume 6566, page 708, of the real estate records of Duval County, Florida;
\nthe Jacksonville International Tradeport Development Guidelines as in effect
\nfrom time to time; and any other instru ment imposing conditions, covenants,
\neasements or restrictions on all or any part of the Parcels (defined
\nhereinafter) or the use thereof, which either are in effect on the effective
\ndate of this Lease (hereinafter defined) or are identified on EXHIBIT B
\nattached hereto, as such documents or instruments be amended, modified or
\nrestated from time to time.<\/p>\n
“COMMENCEMENT DATE” shall have the meaning provided in ARTICLE 2.<\/p>\n
“CONSTRUCTION AGREEMENTS” shall mean and include all contracts or
\nagreements for construction, Restoration (hereinafter defined), Capital
\nImprovement, rehabilitation, alteration, conversion, extension, repair or
\ndemolition performed pursuant to this Lease.<\/p>\n
“CREDIT RATING” shall, at any time, mean, with respect to any
\nPerson, the rating then given by Moody’s Investors Service or Standard & Poor’s Corp., as the case may be, or their respective successors, to the
\nlongest-term unsecured, unsubordinated debt issue (which shall have at least
\nten years remaining to its maturity at that time) of such Person then
\noutstanding (but if such Person does not then have outstanding any debt issue
\nhaving at least ten years remaining to maturity which is then rated by
\nMoody’s or Standard & Poor’s, it shall be deemed to have no Credit Rating for
\npurposes of this Lease).<\/p>\n
“DEFAULT” shall mean any condition or event which constitutes or,
\nafter notice or lapse of time, or both, would constitute an Event of Default
\n(hereinafter defined).<\/p>\n
“EQUIPMENT” shall mean and include all fixtures, equipment and
\npersonal property of any kind which is or becomes incorporated in or attached
\nto and used or usable in the use or operation of the Premises at any time
\nduring the Term or any Renewal Term (hereinafter defined), excluding,
\nhowever, any of the foregoing which are owned, leased, or used by (a) tenants
\nor occupants of the <\/p>\n
2<\/p>\n
Premises (including, without limitation, Tenant or an Affiliate of Tenant)
\nwhich such tenants or occupants have the express right to remove pursuant to
\nthe terms of this Lease (including, without limitation, Tenant’s Property
\n[hereinafter defined]), (b) contractors engaged in improving or maintaining
\nthe same, or (c) utility companies providing utilities to all or any part of
\nthe Parcels.<\/p>\n
“EXPANSION OPTION” shall mean, collectively, the First Parcel B
\nExpansion Option, the Second Parcel B Expansion Option and the Office
\nFacility Option, each of which terms is defined in ARTICLE 45 hereof.<\/p>\n
“EXPIRATION DATE” shall have the meaning provided in ARTICLE 2.<\/p>\n
“FINAL INSPECTION” shall mean, with respect to any Building or
\nimprovement, an inspection thereof made by the appropriate department or
\nagency of the City of Jacksonville, Florida as a result of which Tenant may
\nlegally occupy and use such Building or improvement.<\/p>\n
“FINAL PLANS” shall mean, with respect to any Building or other
\nstructure, the drawings and specifications therefor filed with the Building
\nDepartment of the City of Jacksonville, Florida (or its successor or
\nsubstitute under applicable laws or ordinances), on the basis of which the
\nFinal Inspection thereof will be done.<\/p>\n
“FISCAL YEAR” shall mean a twelve-month period commencing July 1 and
\nending June 30, any portion of which occurs during the Term or any Renewal
\nTerm.<\/p>\n
“FIXED RENT” shall have the respective meanings provided in SECTION
\n3.1(a), ARTICLE 45 or ARTICLE 46 hereof.<\/p>\n
“GOVERNMENTAL AUTHORITY (OR AUTHORITIES)” shall mean and include the
\nUnited States of America, the State of Florida, the County of Duval, the City
\nof Jacksonville, and any agency, depart ment, commission, board, bureau,
\ninstrumentality or political subdivision of any of the foregoing, now
\nexisting or hereafter created, having jurisdiction over the Parcels or any
\nportion thereof, or any officer or official of any of the foregoing acting in
\nhis official capacity.<\/p>\n
“GUARANTY” means and includes, collectively, any and all guaranties
\nof any or all of Tenant’s obligations hereunder given at any time or from
\ntime to time by Guarantor (including, without limitation, that certain
\nIrrevocable Guaranty of Payment and Performance executed and delivered by
\nGuarantor to Landlord substantially simultaneously with the execution and
\ndelivery of this Lease), as the same may from time to time be amended,
\nmodified or restated.<\/p>\n
“IMPOSITIONS” shall have the meaning provided in SECTION 4.1.<\/p>\n
“INITIAL BUILDING” shall mean the Building which Landlord is to
\ncause to be constructed on Parcel A prior to the Commencement Date, for which
\nTenant has heretofore reviewed and approved a coordination set of
\narchitectural drawings and specifications prepared by Landlord’s architect.<\/p>\n
3<\/p>\n
“LAND” shall initially mean Parcel A (defined hereinafter), and
\n(from and after the respective times such additional parcels are leased to
\nTenant hereunder) it shall also hereafter include such additional parcels of
\nland (if any) that from time to time hereafter are leased by Landlord to
\nTenant pursuant to Tenant’s due exercise of its Option rights pursuant to
\nARTICLE 45 hereof.<\/p>\n
“LANDLORD” shall mean CTC Investments Limited, a Florida limited
\npartnership, and its successors and assigns; provided however, that from and
\nafter such time (if any) as Landlord’s interest in and to this Lease shall be
\nassigned or transferred outright (and not just for collateral security
\npurposes) in accordance with the provisions of this Lease, then from and
\nafter the effective date of such outright assignment or transfer and until
\nthe next permitted assignment or transfer (if any) occurs, the term
\n“LANDLORD” shall mean the permitted assignee or transferee.<\/p>\n
“LATE CHARGE RATE” shall have the meaning provided in ARTICLE 6.<\/p>\n
“LEASE” shall mean this Agreement of Lease as it may from time to
\ntime be amended, modified, extended, restated or renewed.<\/p>\n
“LEASE YEAR” shall mean, in the case of the first Lease Year, the
\nperiod beginning on the Commencement Date and ending on the day immediately
\npreceding the first anniversary of the Commencement Date. Each subsequent
\nLease Year shall mean a twelve-month period beginning on an anniversary of
\nthe Commencement Date (so that, for example, the second Lease Year shall mean
\nand refer to the 12-month period beginning on the first anniversary of the
\nCommencement Date and ending on the day immediately preceding the second
\nanniversary of the Commencement Date), except that the last Lease Year may be
\nless than twelve months if this Lease expires or terminates on a date which
\nis not the day immediately preceding an anniversary of the Commence ment
\nDate, and in such case any annual amounts payable under this Lease
\n(including, without limitation, Fixed Rent) shall be prorated for such last
\nLease Year.<\/p>\n
“LEASEHOLD IMPROVEMENT AGREEMENT” shall mean that certain agreement
\nsubstantially in the form of EXHIBIT C attached hereto, which Landlord and
\nTenant have executed or will execute substantially simultaneously with the
\nexecution of this Lease.<\/p>\n
“OPTION” shall mean and refer to such of the Expansion Options or
\nRenewal Options, as the context requires.<\/p>\n
“NOTICE” shall have the meaning provided in SECTION 26.1.<\/p>\n
“PARCEL A” shall mean the parcel of land described on EXHIBIT A
\nattached hereto, except that Landlord and Tenant hereby agree that, on the
\nwritten request of either of them delivered to the other not later than 180
\ndays after final completion of the Initial Building, they will jointly cause
\nthe respective legal descriptions of Parcels A and B to be modified so that
\nthe boundary between those two parcels will be flush with the eastern edge of
\nthe Initial Building.<\/p>\n
4<\/p>\n
“PARCEL B” shall mean the parcel of land described on EXHIBIT D
\nattached hereto, except that Landlord and Tenant hereby agree that, on the
\nwritten request of either of them delivered to the other not later than 180
\ndays after final completion of the Initial Building, they will jointly cause
\nthe respective legal descriptions of Parcels A and B to be modified so that
\nthe boundary between those two parcels will be flush with the eastern edge of
\nthe Initial Building.<\/p>\n
“PARCEL C” shall mean the parcel of land described on EXHIBIT E
\nattached hereto.<\/p>\n
“PARCEL D” shall mean the parcel of land described on EXHIBIT G
\nattached hereto.<\/p>\n
“PARCELS” shall mean, collectively, at any time, Parcels A, B, C and
\nD and any Buildings and other improvements then situated thereon.<\/p>\n
“PARKING\/DRIVEWAY FACILITIES” shall mean, at any time, the South
\nAccess Roadway and such other parking lots and driveways (if any) as are then
\nin existence and are necessary for the use and operation of, or access to,
\nthe Buildings, and which are located on the Parcels but outside the
\nboundaries of the Land, and which Landlord and Tenant have identified, in a
\nwriting signed by both of them, as being Parking\/Driveway Facilities under
\nand for purposes of this Lease. Park ing\/Driveway Facilities will initially
\ninclude (i) the portions situated on Parcel D of (A) the cross- hatched and
\nshaded area adjacent to and immediately to the south of the presently
\nintended site for the Initial Building and (B) the strip of land extending
\nsouth and westward from such cross-hatched and shaded area and indicated as
\nan intended driveway, and (ii) the portion situated on Parcel B of the
\ncross-hatched and shaded area in the northeast portion of Parcel B identified
\nas “Parcel B Parking”, all as shown on the preliminary site drawing attached
\nhereto as EXHIBIT N. Such initial Parking\/Driveway Facilities are referred to
\nherein as the “INITIAL PARKING\/DRIVEWAY FACILITIES”; and the strip of land
\ndescribed in clause (ii) of the preceding sentence has, for the present time,
\nbeen designated by Landlord as the South Access Roadway (defined generally
\nhereinbelow).<\/p>\n
“PERSON” shall mean and include an individual, corporation,
\npartnership, joint venture, estate, trust, unincorporated association,
\ntenancy-in-common, other business entity, Governmental Authority, and any
\nfederal, state, county or municipal government or any bureau, department,
\nauthority, agency or officer thereof.<\/p>\n
“PREMISES” shall mean, at any time, the Land and Buildings (as each
\nsuch term is then defined for purposes hereof) which are then subject to this
\nLease as having been leased hereunder to Tenant by Landlord. The Premises
\nshall initially consist of Parcel A and the Initial Building.<\/p>\n
“RENEWAL OPTION” shall have the meaning provided in ARTICLE 46.<\/p>\n
“RENEWAL TERM” shall have the meaning provided in ARTICLE 46.<\/p>\n
“RENTABLE SQUARE FEET” shall mean, with respect to any rentable
\nspace in a Building, the total floor area of the space in the Building,
\nexpressed in square feet, measured to the outside surface <\/p>\n
5<\/p>\n
of the Building, based on the as-built drawings of the Building, determined
\nby the Architect in accordance with professional standards of measurement for
\nsimilar type buildings (to the extent applicable).<\/p>\n
“RENTAL” shall have the meaning provided in SECTION 3.4.<\/p>\n
“REQUIREMENTS” shall have the meaning provided in SECTION 14.1(a).<\/p>\n
“RESTORATION” shall have the meaning provided in SECTION 8.1(c).<\/p>\n
“RESTORATION FUNDS” shall have the meaning provided in SECTION
\n8.2(a).<\/p>\n
“RESTORE” shall have the meaning provided in SECTION 8.1(c).<\/p>\n
“SECURED LENDER” shall mean a lender which is the holder or
\nbeneficiary of a Secured Loan (or any assignee thereof) which, in the case of
\na construction loan, shall be an institutional lender.<\/p>\n
“SECURED LOAN” shall mean any loan of any kind (including, without
\nlimitation, any renewal, extension, or modification of any Secured Loan, and
\nany Secured Loan which refinances any Secured Loan) which is secured by any
\nmortgage, deed of trust or other security instrument (whether or not
\nrecorded) which constitutes or creates a lien, encumbrance or security
\ninterest on any portion of or interest in Landlord’s interest in and to the
\nPremises; provided, however, that the aggregate principal amount outstanding
\nunder Secured Loans shall not at any time exceed the sum of Fifteen Million
\nDollars ($15,000,000.00) plus the aggregate Total Construction Cost (if any)
\nin respect of all of the exercised Expansion Options and Additions and (to
\nthe extent, if any, paid for with Secured Loan proceeds or Landlord’s own
\nfunds) Restorations.<\/p>\n
“SOUTH ACCESS ROADWAY” shall mean that portion which lies entirely
\nwithin Parcel D, of a 3-lane roadway or other right of way that will provide
\naccess from Parcel A across Parcel D to Stone Drive, the specific location of
\nwhich South Access Roadway may be designated, or moved from time to time, by
\nLandlord, provided that (i) any location to which it is moved provides Tenant
\nwith reasonably equivalent access and (ii) unless such move is either
\nreasonably necessary to accommodate Tenant’s exercise of an Option or is made
\nat Tenant’s written request, Landlord shall construct at its expense a new
\nroadway substantially equivalent to the one it replaced (including curb,
\ngutter, and median strips) and pay the cost of Tenant’s moving its sign from
\nthe former roadway.<\/p>\n
“TAXES” shall have the meaning provided in SECTION 4.3(a).<\/p>\n
“TENANT” shall mean Coach Distribution Company, a Delaware
\ncorporation; provided, however, that after such time (if any) as all of
\nTenant’s right, title and interest in, to and under this Lease and the
\nleasehold estate hereby created shall have been assigned or transferred in
\naccordance with the terms of this Lease, then from and after the effective
\ndate of such assignment or transfer and the assumption hereof by a permitted
\nassignee pursuant to a written assignment agreement <\/p>\n
6<\/p>\n
satisfactory to Landlord and all Secured Lenders and the release of the
\nassigning Tenant from its obligations hereunder as provided in SECTION 10.2
\nbelow, and until the next permitted assignment or transfer (if any), the term
\n“Tenant” shall mean the permitted assignee or transferee.<\/p>\n
“TENANT’S PROPERTY” shall have the meaning provided in SECTION 11.2.<\/p>\n
“TERM” shall have the meaning provided in ARTICLE 2.<\/p>\n
“UNAVOIDABLE DELAYS” shall mean actual delays suffered as a direct
\nresult of (i) strikes, lockouts, acts of God, enemy action, civil riots or
\ninability to obtain labor or materials due to governmental restrictions, (ii)
\nthe wrongful failure of a party hereto to grant any consent or approval to
\nthe other, (iii) fire or other casualty or other causes beyond the control of
\nthe obligated party, and (iv) the breach or default of the other party to
\nthis Lease in the performance of its obligations under this Lease, or other
\nact of such other party or any Person acting or claiming by, through or under
\nsuch other party, which directly prevents the obligated party from performing
\nits obligation hereunder; provided, however, that in each instance the party
\nclaiming unavoidable delay shall have notified in writing the other party
\nthereof not later than five (5) Business Days after the incident causing the
\ndelay shall have occurred and become known to the claiming party.<\/p>\n
“WILMA” shall mean Wilma\/Skyland Joint Venture, Ltd., a Georgia
\nlimited partnership, and its successors.<\/p>\n
ARTICLE 2
\n PREMISES AND TERM OF LEASE<\/p>\n
Landlord does hereby demise and lease Parcel A and the Initial
\nBuilding to Tenant, and grants to Tenant, its guests, invitees and licensees
\nall easements, rights and privileges appurtenant thereto, and Tenant does
\nhereby lease and accept Parcel A and the Initial Building from Landlord, all
\nsubject to those matters set forth on EXHIBIT B attached hereto and made a
\npart hereof and such other matters which either (i) result from the acts of
\nTenant or any Person acting or claiming by, through or under Tenant or (ii)
\nhave been or may hereafter be approved by Tenant (Tenant agrees that it will
\nnot withhold or delay its approval unreasonably).<\/p>\n
TO HAVE AND TO HOLD unto Tenant for the Term (as defined herein) and
\nany Renewal Terms. “TERM” means the period commencing on the Commencement
\nDate (as defined in the Leasehold Improvement Agreement) (the “COMMENCEMENT
\nDATE”) and expiring at 11:59 p.m. local Jacksonville, Florida, time on the
\ndate (the “EXPIRATION DATE”) which is the first to occur of (1) the last to
\noccur of (a) the day (the “INITIAL EXPIRATION DATE”) which is twenty (20)
\nyears and 300 days after the date of this Lease, (b) the day preceding the
\ntenth anniversary of the commencement of the First Renewal Term if Tenant
\nexercises the First Renewal Option but not the Second Renewal Option, (c) the
\nday preceding the tenth anniversary of the commencement of the Second Renewal
\nTerm if Tenant exercises both Renewal Options pursuant to ARTICLE 46, and (d)
\nonly as to any Addition and the Parcel of land on which it is situated, which
\nare subjected to this Lease as a result <\/p>\n
7<\/p>\n
of Tenant’s due exercise of any Expansion Option (and not as to any other
\nland or Building), the last day of the period to which the Term was extended
\nas a result of the exercise of such Expansion Option pursuant to ARTICLE 45
\nhereof, and (2) such earlier date upon which the term of this Lease shall
\nexpire or be canceled or terminated pursuant to any of the conditions,
\nprovisions or covenants of this Lease or pursuant to law. Promptly following
\nthe Commencement Date, and also promptly following the due exercise of any
\nRenewal Option or Expansion Option, the parties hereto shall enter into an
\nagreement or memorandum in recordable form and otherwise reasonably
\nsatisfactory to the parties hereto, confirming (as the case may be) either
\nthe Commencement Date or the Expiration Date as then known to the parties.<\/p>\n
Landlord also hereby grants to Tenant a non-exclusive easement
\n(which Landlord may, at any time and from time to time, on reasonable notice
\nto Tenant, unilaterally relocate to any other location within the Parcels
\nthat will provide Tenant with a reasonably equivalent substitute) to use the
\nParking\/Driveway Facilities for and during the Term.<\/p>\n
Landlord retains and reserves the right to use, and to license and
\ngrant to others the non-exclusive right to use, for trucks and other
\nvehicles, the portions situated on Parcel A of (i) the South Access Roadway
\nand (ii) the area (the “TRUCK STAGING AREA”) on Parcel A which is adjacent to
\nand south of the southern edge of the Initial Building and which is
\ncross-hatched and shaded on EXHIBIT N attached hereto; and Tenant shall at
\nall times cause and allow such portions of the South Access Roadway and the
\nTruck Staging Area to be used by Landlord and its designees and licensees for
\ntrucks and other vehicles.<\/p>\n
Landlord retains, and reserves the right to transfer, any and all
\ndevelopment rights applicable to Parcel A which are not utilized in
\nconnection with the Initial Building, except that Landlord will not transfer
\nsuch of those retained development rights (if any) as may be necessary to
\npermit the construction of additional Buildings for Tenant pursuant to such
\nof the Expansion Options as have not lapsed or terminated or been fully
\nexercised and satisfied.<\/p>\n
ARTICLE 3
\n RENT<\/p>\n
SECTION 3.1.<\/p>\n
(a) For and during the Term, Tenant shall pay to Landlord
\nwith respect to the initial Premises (I.E., Parcel A, the Initial Building
\nand all other improvements now or hereafter situated on Parcel A, and
\nexclusive of any Addition or other improvement that may be leased to Tenant
\npursuant to its exercise of any Expansion Option), a fixed rent (“FIXED
\nRENT”) in the respective amounts set forth below, all without any demand or
\nnotice therefor from Landlord:<\/p>\n
(i) an amount per annum equal to the product of $4.40
\n multiplied by the Rentable Square Feet of the Initial Building situated
\n on Parcel A, for the period beginning on the Commencement Date and
\n ending on the last day of the fifth (5th) Lease Year;<\/p>\n
8<\/p>\n
(ii) an amount per annum equal to the product of
\n $4.90 multiplied by the Rentable Square Feet of the Initial Building
\n situated on Parcel A, for the period commencing on the first day of the
\n sixth (6th) Lease Year and ending on the last day of the tenth (10th)
\n Lease Year;<\/p>\n
(iii) an amount per annum equal to the product of
\n $5.45 multiplied by the Rentable Square Feet of the Initial Building
\n situated on Parcel A, for the period commencing on the first day of the
\n eleventh (11th) Lease Year and ending on the last day of the fifteenth
\n (15th) Lease Year;<\/p>\n
(iv) an amount per annum equal to the product of
\n $5.95 multiplied by the Rentable Square Feet of the Initial Building
\n situated on Parcel A, for the period beginning on the first day of the
\n sixteenth (16th) Lease Year and ending on the last day of the twentieth
\n (20th) Lease Year; and<\/p>\n
(v) for any period within any Renewal Term, Fixed
\n Rent determined as provided in ARTICLE 46 hereof.<\/p>\n
(b) Prior to the Commencement Date, the Architect (as
\ndefined in the Leasehold Improvement Agreement) shall certify to the parties
\nin writing, the number of Rentable Square Feet of the Initial Building. Such
\ncertification shall be binding and conclusive upon the parties, absent
\nmanifest error.<\/p>\n
(c) In the event Tenant exercises any Expansion Option,
\nTenant shall also pay to Landlord, in addition to the Fixed Rent provided for
\nin SECTION 3.1(a) above, Fixed Rent for the applicable Addition as determined
\nin accordance with ARTICLE 45.<\/p>\n
(d) In the event Tenant exercises any of the Renewal
\nOptions, Tenant shall pay Fixed Rent for the entire Premises (I.E., all Land
\nand Buildings, including, without limitation, Parcel A and the Initial
\nBuilding) for the applicable Renewal Term as determined in accordance with
\nARTICLE 46.<\/p>\n
(e) Fixed Rent shall be due and payable in equal monthly
\ninstallments in advance, on the Commencement Date and on the first day of
\neach calendar month thereafter during the Term, and (as to any Renewal Term)
\non the first day of such Renewal Term and on the first day of each calendar
\nmonth thereafter during such Renewal Term. The monthly installment of Fixed
\nRent for any partial calendar month shall be prorated based on the number of
\nactual days in such partial calendar month.<\/p>\n
9<\/p>\n
SECTION 3.2.<\/p>\n
(a) Fixed Rent (as the amount of such Fixed Rent may be
\nadjusted as expressly provided in SECTION 9.3(c), ARTICLES 45 and 46, and
\nEXHIBIT C), shall be absolutely net to Landlord without any abatement,
\ncounterclaim, offset, exception, qualification, or (except such as is
\nexpressly provided for in SECTION 48.2 hereof) deduction or reduction
\nwhatsoever.<\/p>\n
(b) Except for debt service on any indebtedness owed by
\nLandlord to a Person other than Tenant or Guarantor, and except as expressly
\nrequired to be paid by Landlord or another Person by the express provisions
\nof SECTION 3.3 or any other provision herein, Tenant shall pay all costs,
\nexpenses and charges of any and every kind and nature whatsoever (including,
\nwithout limitation, Impositions [defined hereinafter], Taxes and insurance)
\nof, for or relating to all of the Parcels or the ownership, use, operation,
\nmanagement, maintenance and repair thereof, which arise or become due or
\npayable for, during, with respect to, or after (but attributable to a period
\nfalling within) the Term or any Renewal Term, even though Tenant may not own,
\nlease, or have any right to use or occupy some or all of such Parcels.
\nImpositions, Taxes, and all other amounts payable by Tenant hereunder shall
\nbe prorated for any partial Lease Year within the Term or any Renewal Term.<\/p>\n
SECTION 3.3.<\/p>\n
(a) Notwithstanding SECTION 3.2 above, Tenant shall not be
\nliable for the costs or other obligations (including, but not limited to,
\nImpositions) described in SECTION 3.2(b) relating to Parcel B first arising
\nand accruing from and after the later of (i) the eighth anniversary of the
\nCommencement Date and (ii) the first anniversary of the earlier to occur of
\n(A) the date of Tenant’s written notice to Landlord that Tenant irrevocably
\nand unconditionally waives and releases all rights to exercise both of the
\nFirst Parcel B Expansion Option and the Second Parcel B Expansion Option or
\n(B) the date as of which both the First Parcel B Expansion Option and the
\nSecond Parcel B Expansion Option have expired unexercised, it being
\nunderstood and agreed that the excusal of Tenant from the payment of such
\ncosts relating to Parcel B which is provided for in this SECTION 3.3(a) shall
\nbe void and of no force or effect if either the First Parcel B Expansion
\nOption or the Second Parcel B Expansion Option is exercised or is still
\navailable for exercise.<\/p>\n
(b) Notwithstanding SECTION 3.2 above, Tenant shall not be
\nliable for the costs or other obligations (including, but not limited to,
\nImpositions) described in SECTION 3.2(b) relating to Parcel C first arising
\nand accruing from and after the later of (i) the eighth anniversary of the
\nCommencement Date and (ii) the first anniversary of the earlier to occur of
\n(A) the date of Tenant’s written notice to Landlord that Tenant irrevocably
\nand unconditionally waives and releases all rights to exercise the Office
\nFacility Option or (B) the date upon which the Office Facility Option shall
\nhave expired unexercised, it being understood and agreed that the excusal of
\nTenant from the payment of such costs relating to Parcel C which is provided
\nfor in this SECTION 3.3(b) shall be void and of no force or effect if the
\nOffice Facility Option is exercised or is still available for exercise.<\/p>\n
10<\/p>\n
(c) Notwithstanding SECTION 3.2 above, Tenant shall not be
\nliable for the costs or other obligations (including, without limitation,
\nImpositions) described in SECTION 3.2(b) relating to Parcel D first arising
\nand accruing from and after the date (if it should occur during the Term) as
\nof which, pursuant to the provisions of SECTIONS 3.3(a) and (b) above, Tenant
\nceases to be liable for the costs and other obligations described in SECTION
\n3.2(b) relating to Parcel B.<\/p>\n
SECTION 3.4. All amounts of any and every kind whatsoever payable by
\nTenant pursuant to this Lease (collectively, “RENTAL”), including (without
\nlimitation) Fixed Rent, Impositions and all other amounts payable by Tenant
\nunder this Lease (other than Late Charges) shall constitute rent under this
\nLease, and all of the portions, amounts or components of Rental which are to
\nbe paid to Landlord pursuant to the provisions of this Lease shall be paid by
\nwire transfer of immediately available funds in accordance with written wire
\ntransfer instructions provided by Landlord to Tenant from time to time, and
\nall of the portions, amounts or components of Rental which are payable to any
\nPersons other than Landlord shall be paid in full to the proper payees
\nthereof, timely and by the time provided therefor in this Lease (or if the
\ntime for such payments is not expressly provided for in this Lease, then
\nbefore the same becomes delinquent or past-due or any late payment penalty or
\ncharge becomes due with respect thereto. All Rental paid under this Lease to
\nPersons other than Landlord who are the proper payees thereof shall be, and
\nbe construed as, payments made by Tenant for the benefit of Landlord. Tenant
\nshall pay all Rental provided for in this Lease notwithstanding any casualty,
\ndestruction of the Buildings and other improvements, act of God, or any other
\nevent or occurrence of any kind and notwithstanding that Tenant does not own,
\nlease, occupy or use (or have any right to acquire, lease, occupy or use)
\nsome or all of the Parcels, and in no event whatsoever shall there ever be
\nany diminution or abatement of any Rental except in the specific
\ncircumstances, and to the specific extent, if any, expressly and specifically
\nprovided in this Lease.<\/p>\n
SECTION 3.5. Omitted.<\/p>\n
SECTION 3.6. Omitted.<\/p>\n
SECTION 3.7. No payment by Tenant or receipt or acceptance by
\nLandlord of a lesser amount than the correct amount of any Rental shall be
\ndeemed to be other than a payment on account, nor shall any endorsement or
\nstatement on any check or any letter accompanying any check or payment be
\ndeemed an accord and satisfaction, and Landlord may accept such check or
\npayment without prejudice to Landlord’s right to recover the balance or
\npursue any other remedy in this Lease or at law provided.<\/p>\n
SECTION 3.8. If any of the Fixed Rent, Impositions or any other
\nRental payable under the terms and provisions of this Lease shall be or
\nbecome uncollectible, reduced or required to be refunded because of any rent
\ncontrol or similar act or law enacted by a Governmental Authority, Tenant
\nshall enter into such agreements and take such other steps (without
\nadditional expense or liability to Tenant) as Landlord may reasonably request
\nand as may be legally permissible to permit Landlord to collect the maximum
\nrents which from time to time during the continuance of such legal rent
\nrestriction may be legally permissible (and not in excess of the amounts
\nreserved therefor under <\/p>\n
11<\/p>\n
this Lease). Upon the termination of such legal rent restriction, (a) the
\nRental in question shall become and thereafter be payable in accordance with
\nthe amounts reserved herein for the periods following such termination, and
\n(b) if permitted by law, Tenant shall pay to Landlord, to the maximum extent
\nlegally permissible, an amount equal to (i) the amount of the Rental in
\nquestion which would have been paid pursuant to this Lease but for such legal
\nrent restriction less (ii) the amounts with respect to such Rental paid by
\nTenant during the period such legal rent restriction was in effect, plus
\ninterest on the net excess of (i) over (ii) at a reasonable rate agreed upon
\nby the parties (and absent such agreement, at the rate of 8% per annum).<\/p>\n
ARTICLE 4
\n IMPOSITIONS<\/p>\n
SECTION 4.1. Tenant covenants and agrees to pay or cause to be paid,
\nas hereinafter provided, at Tenant’s option either to Landlord or to the
\nGovernmental Authority or other Person imposing the same or to whom the same
\nmay be due and payable, all of the following items (collectively,
\n“IMPOSITIONS”) which accrue in or relate to any period beginning on or after
\nthe Commencement Date (except to the extent, if any, that any of such items
\nare paid by Wilma or the Association): (a) Taxes (defined hereinafter) and
\nreal property assessments, (b) personal property taxes, (c) occupancy and
\nrent taxes, (d) water, water meter and sewer rents, rates and charges, (e)
\nexcises, (f) levies, (g) license and permit fees, (h) service charges with
\nrespect to police protection, fire protection, common area maintenance,
\nsanitation and water supply, if any, (i) Association assessments and charges,
\nand (j) fines, penalties and other similar or like charges applicable to the
\nforegoing and any interest or costs with respect thereto (only to the extent
\nincurred by reason of Tenant’s wrongful act or omission or Tenant’s failure
\ntimely to pay the same or otherwise fully and timely to comply with any
\nprovision of this Lease), to the extent that at any time during the Term or
\nany Renewal Term, such items listed in clauses (a) through (j) of this
\nSECTION 4.1 are assessed, levied, confirmed, imposed upon, or would grow or
\nbecome due and payable out of or in respect of, or would be charged with
\nrespect to: (A) the Parcels or any personal property, Equipment or other
\nfacility used in the operation thereof, (B) any document (other than this
\nLease) by which Tenant directly or indirectly creates or transfers any
\ninterest or estate in the Parcels, (C) the use and occupancy of the Parcels
\nby Tenant or any Person by, through or under Tenant, or (D) the Rental (or
\nany portion thereof) payable by Tenant hereunder. Each such Imposition, or
\ninstallment thereof, during the Term or any Renewal Term shall be paid at
\nleast five (5) days before the last day the same may be paid without fine,
\npenalty, interest or additional cost; provided, however, that if, by law, any
\nImposition may at the option of the taxpayer be paid in installments (whether
\nor not interest shall accrue on the unpaid balance of such Imposition),
\nTenant may exercise the option to pay the same in such installments and shall
\nbe responsible for the payment of such installments only (including, without
\nlimitation, any interest or late payment charges payable thereon or in
\nconnection therewith); provided, however, that all such installment payments
\nrelating to periods prior to the date definitely fixed for the expiration of
\nthe Term or any Renewal Terms shall be made prior to the Expiration Date.<\/p>\n
SECTION 4.2. If Tenant, or Landlord upon receipt from Tenant, is
\npaying any Imposition directly to the Governmental Authority or other Person
\nimposing the same, then each party, from <\/p>\n
12<\/p>\n
time to time upon the request of the other party, shall furnish evidence
\nreasonably satisfactory to the requesting party evidencing the payment of the
\nImposition.<\/p>\n
SECTION 4.3.<\/p>\n
(a) “TAXES” shall mean and include (i) any and all real
\nproperty or other ad valorem taxes assessed or levied against or with respect
\nto the Parcels or any part thereof, and (ii) sales, rental, or other similar
\ntaxes on commercial rents and (iii) fines, penalties and other similar or
\nlike governmental charges applicable to the foregoing taxes or charges and
\nany interest or costs with respect thereto.<\/p>\n
(b) Nothing herein contained shall require Tenant to pay
\nmunicipal, state or federal income, inheritance, estate, succession, capital
\nlevy, transfer or gift taxes of Landlord, or any corporate franchise tax
\nimposed upon Landlord or any gross income or gross receipts taxes imposed
\nupon Landlord, unless such tax is imposed in lieu of any of the taxes
\ndescribed in the preceding SECTION 4.3(a).<\/p>\n
SECTION 4.4. Any Imposition relating to a fiscal period of the
\nimposing Governmental Authority or other Person, a part of which period is
\nincluded within the Term or any Renewal Term and a part of which is included
\nin a period of time prior to or after the Term or any Renewal Term, shall be
\napportioned between Landlord and Tenant as of the Commencement Date or
\nExpiration Date, as the case may be, so that Tenant shall pay that portion of
\nsuch Imposition which that part of such fiscal period included in the period
\nof time on or after the Commencement Date and before the Expiration Date.<\/p>\n
SECTION 4.5. Tenant shall have the right, to the extent permitted by
\nlaw, at its own expense, to contest the amount or validity, in whole or in
\npart, of any Imposition it is obligated hereunder to pay, by appropriate
\nproceedings diligently conducted in good faith. Notwithstanding the
\nprovisions of SECTION 4.1 hereof, payment of such Imposition shall be
\npostponed if, and only as long as none of the Parcels nor any part thereof,
\nnor any part of the rents, issues and profits thereof, would, by reason of
\nsuch postponement or deferment, be, in the reasonable judgment of Landlord,
\nin danger of being forfeited or lost, in which event the Tenant shall pay
\nsuch Imposition or post a bond or other security sufficient to postpone
\nforfeiture or levy. Upon the termination of such proceedings, including
\nappeals, it shall be the obligation of Tenant to pay the amount of such
\nImposition or part thereof as finally determined in such proceedings or
\nappeals, the payment of which may have been deferred during the prosecution
\nof such proceedings, together with any costs, fees (including attorneys’ fees
\nand disbursements), interest, penalties or other liabilities in connection
\ntherewith.<\/p>\n
SECTION 4.6. Tenant shall have the right, to the extent permitted by
\nlaw, and at Tenant’s sole cost and expense, to seek a reduction in the
\nvaluation of the Parcels assessed for real property tax purposes and to
\nprosecute any action or proceeding in connection therewith; provided,
\nhowever, that during the last year of the Term (and any Renewal Term, if
\napplicable), Landlord (and not Tenant) shall have the right (but no
\nobligation), at Landlord’s cost and expense, to seek a reduction in the <\/p>\n
13<\/p>\n
valuation of the Parcels assessed for real property tax purposes and to
\nprosecute any action or proceeding in connection therewith.<\/p>\n
SECTION 4.7.<\/p>\n
(a) Landlord shall not be required to join in any
\nproceedings referred to in SECTION 4.5 or 4.6 hereof unless the provisions of
\nany law, rule or regulation at the time in effect shall require that such
\nproceedings be brought by or in the name of Landlord, in which event Landlord
\nshall join and cooperate in such proceedings or permit the same to be brought
\nin its name, but shall not be liable for the payment of any costs or expenses
\nin connection with any such proceedings, and Tenant shall reimburse Landlord
\nfor, and indemnify and hold Landlord harmless from and against, any and all
\ncosts or expenses which Landlord may reasonably pay, sustain or incur in
\nconnection with any such proceedings.<\/p>\n
(b) Tenant shall not be required to join in any proceedings
\nreferred to in the proviso at the end of 4.6 hereof unless the provisions of
\nany law, rule or regulation at the time in effect shall require that such
\nproceedings be brought by or in the name of Tenant, in which event Tenant
\nshall join and cooperate in such proceedings or permit the same to be brought
\nin its name, but shall not be liable for the payment of any costs or expenses
\nin connection with any such proceedings, and Landlord shall reimburse Tenant
\nfor, and indemnify and hold Tenant harmless from and against, any and all
\ncosts or expenses which Tenant may reasonably pay, sustain or incur in
\nconnection with any such proceedings.<\/p>\n
SECTION 4.8. Any certificate, advice or bill of the appropriate
\nofficial designated by law to make or issue the same or to receive payment of
\nany Imposition asserting non-payment of such Imposition shall be prima facie
\nevidence that such Imposition is due and unpaid at the time of the making or
\nissuance of such certificate, advice or bill, at the time or date stated
\ntherein.<\/p>\n
ARTICLE 5
\n MONTHLY DEPOSITS<\/p>\n
From and after the occurrence of a monetary Event of Default
\nhereunder, at Landlord’s request Tenant shall deposit with Landlord, on a
\nmonthly basis together with Fixed Rent, one-twelfth of such amount as, in
\nLandlord’s reasonable judgment, is necessary so that Landlord will have
\nsufficient funds on deposit to pay when due all Taxes, Impositions and
\ninsurance required to be paid by Tenant hereunder. In the event that at any
\ntime Landlord reasonably believes that it will have insufficient funds on
\nhand based on the foregoing deposits, Landlord may require additional
\ndeposits, as necessary. Any such deposits shall be maintained by Landlord in
\na segregated interest-bearing account. All such deposits shall be deemed the
\nproperty of Tenant and held in trust by Landlord, and all income thereon
\nshall be deemed Tenant’s income for purposes of federal and other income
\ntaxes, but Tenant shall not have access to, or direct the withdrawal or
\npayment of, any funds in such account. If after payment of Taxes, Impositions
\nand insurance for any Taxable Year, Landlord continues to hold any excess
\nfunds (including interest) which had been deposited by Tenant with <\/p>\n
14<\/p>\n
Landlord, Landlord shall within thirty (30) days after payment of the Taxes,
\nImpositions and insurance for said Taxable Year return any excess funds to
\nTenant, provided, however, that if an Event of Default exists (and any
\napplicable cure period has expired), such excess may continue to be held, or
\nmay be credited, by Landlord against future amounts due or to become due or
\npayable by Tenant hereunder.<\/p>\n
ARTICLE 6
\n LATE CHARGES<\/p>\n
If payment of any Fixed Rent, Impositions or any other Rental shall
\nnot have been paid in accordance with the provisions of SECTION 3.1, SECTION
\n3.4, or any other applicable provision hereof by the seventh day after the
\ndate on which such amount was due and payable under this Lease, a late charge
\n(“LATE CHARGE”) on the amount overdue at the rate (“LATE CHARGE RATE”) of
\nfifteen percent (15%) per annum from the date on which such amount was first
\ndue and payable until the date paid in full, shall at Landlord’s option be
\npayable as partial damages for Tenant’s failure to make prompt payment, in
\naddition to any other right or remedy of Landlord under this Lease. Late
\nCharges shall be payable on demand. Nothing contained in this ARTICLE 6 and
\nno acceptance of Late Charges by Landlord, shall be deemed to extend or
\nchange the time for payment of Fixed Rent, Impositions or any other Rental.
\nNo failure by Landlord to insist upon the strict performance by Tenant of its
\nobligations to pay Late Charges shall constitute a waiver by Landlord of its
\nright to enforce the provisions of this ARTICLE 6 in any instance thereafter
\noccurring. The provisions of this ARTICLE 6 relate only to the imposition of
\nLate Charges and shall not be construed in any way to create any grace period
\nwith respect to any Default or to extend the grace periods or notice periods
\nprovided for in ARTICLE 25.<\/p>\n
ARTICLE 7
\n INSURANCE<\/p>\n
SECTION 7.1.<\/p>\n
(a) Subject to the provisions herein, throughout the Term
\nor any Renewal Terms, Tenant at its sole cost and expense shall:<\/p>\n
(i) keep all Buildings or cause all Buildings to be
\n kept insured under an “All Risk of Physical Loss” form of policy, also
\n providing coverage for loss or damage by water, flood, subsidence and
\n earthquake, and including coverage for changes in ordinances and laws
\n by governmental authority resulting in consequential and contingent
\n liabilities or increases in costs of construction, with such limits as
\n are reasonably required by Landlord from time to time, and with
\n deductibles not to exceed $100,000.00, except that the deduct ible may
\n be $250,000.00 for loss or damage by flood and $500,000.00 for loss or
\n damage by subsidence or earthquake, and excluding from such coverage
\n normal settling only, and including war risks when and to the extent
\n obtainable from the United States government or an agency thereof; such
\n insurance to be in the amount set forth in the “agreed amount clause”<\/p>\n
15<\/p>\n
endorsement to the policy in question, which endorsement shall be
\n attached to the policy, provided that such amount shall be sufficient
\n to prevent Landlord and Tenant from becoming co-insurers under
\n provisions of applicable policies of insurance; and in the absence of
\n such “agreed amount clause” endorsement, such insurance shall meet the
\n requirements of this SECTION 7.1(a)(i) and shall be in an amount not
\n less than one hundred percent (100%) of the actual full replacement
\n cost (without reduction for depreciation or other matters) of all
\n Buildings.<\/p>\n
(ii) provide and keep, or cause to be provided and
\n kept, in force comprehensive general liability insurance against
\n liability for bodily injury and death and property damage, it being
\n agreed that such insurance shall be in an amount as may from time to
\n time be reasonably required by Landlord, but not less than
\n $20,000,000.00 combined single limit for liability for bodily injury,
\n death and property damage; such insurance shall include all of the
\n Parcels and all sidewalks adjoining or appurtenant to the Parcels,
\n shall contain blanket contractual coverage and shall also provide the
\n following protection:<\/p>\n
(1) completed operations;<\/p>\n
(2) personal injury protection (exclusions a
\n and c of current forms deleted);<\/p>\n
(3) sprinkler leakage-water damage legal
\n liability; and<\/p>\n
(4) fire legal liability, if not otherwise
\n covered under the comprehensive form of public liability
\n insurance.<\/p>\n
(iii) provide and keep, or cause to be provided and
\n kept in force, automobile liability and property damage insurance for
\n all owned, non-owned and hired vehicles insuring against liability for
\n bodily injury and death and for property damage in an amount as may
\n from time to time (but not more often than once every three (3) years)
\n be reasonably required by Landlord but not less than $3,000,000.00
\n combined single limit, such insurance to contain the so-called
\n “occurrence clause”;<\/p>\n
(iv) provide and keep, or cause to be provided and
\n kept in force, workers’ compensation providing statutory benefits for
\n all persons employed by Tenant at or in connection with the Parcels;<\/p>\n
(v) if a sprinkler system shall be located in any
\n portion of any Building, provide and keep, or cause to be provided and
\n kept in force, sprinkler leakage insurance in amounts reasonably
\n required by Landlord;<\/p>\n
(vi) provide and keep, or cause to be provided and
\n kept, in force boiler and machinery insurance in an amount as may from
\n time to time be reasonably required by <\/p>\n
16<\/p>\n
Landlord but not less than $10,000,000.00 per accident on a combined
\n basis covering direct property loss and loss of income and providing
\n for all steam, mechanical and electrical equipment, including without
\n limitation, all boilers, unfired pressure vessels, piping and wiring;<\/p>\n
(vii) provide and keep, or cause to be provided and
\n kept, in force such other insurance in such amounts as either (A)
\n Landlord may reasonably require (including, without limitation,
\n insurance against loss or damage to landscaping and to irrigation and
\n lawn sprinkler systems) or (B) Landlord may from time to time be
\n required to carry by any Secured Lender, in either such case against
\n such other insurable risks or hazards as at the time are commonly
\n insured against in the case of prudent owners of like buildings,
\n improvements and property.<\/p>\n
(b) All insurance provided or caused to be provided by
\nTenant as required by this Section 7.1 (except the insurance under SECTION
\n7.1(a)(iv)) shall name Tenant as a named insured and Landlord as a named
\ninsured and a loss payee and shall include a so-called “Landlord Protective
\nInsurance” rider or endorsement providing, among other things, that Landlord
\nhas full rights to the full amount of the policy. The coverage provided or
\ncaused to be provided by Tenant as required by SECTIONS 7.1(a)(i), 7.1(a)(v)
\nand 7.1(a)(vi), 7.1(a)(vii) and any property insurance required to be
\nmaintained pursuant to SECTION 7.1(a) shall also name as an additional
\ninsured and (if Landlord so requests) also as an additional loss payee, under
\na standard noncontributing mortgagee clause, each Secured Lender which
\nLandlord requests Tenant so to name. The coverage provided or caused to be
\nprovided by Tenant as required by SECTIONS 7.1(a)(ii) and 7.1(a)(iii) and any
\nliability insurance provided or caused to be provided by Tenant shall also
\nname each Secured Lender as an additional insured.<\/p>\n
SECTION 7.2.<\/p>\n
(a) The loss under all policies required by any provision
\nof this Lease insuring against damage to the Buildings by fire or other
\ncasualty shall be payable jointly to Landlord or its designee, Tenant and (if
\nLandlord so designates) Secured Lenders, for application in accordance with
\nARTICLE 8 hereof.<\/p>\n
(b) All insurance required by any provision of this Lease
\nshall be in such form as is reasonably acceptable to Landlord and shall be
\nissued by any insurance company licensed and authorized to do business in the
\nState of Florida and having a Best’s Insurance Reports (or any successor
\npublication of comparable standing) rating of A XIII (or the then-equivalent
\nof such rating) or better or by any other insurance company approved in
\nwriting by Landlord. All policies referred to in this Lease shall be
\nprocured, or caused to be procured, by Tenant, at no expense to Landlord and
\nfor periods of not less than one (1) year. Prior to the commencement of the
\nterm of each such policy, Tenant shall deliver to Landlord the following: (i)
\na certificate of insurance issued by the insurance carrier (not a broker or
\nagent) evidencing all coverages required by this Lease and the respective
\namounts and limits thereof, such certificate to be satisfactory in all
\nrespects to Landlord <\/p>\n
17<\/p>\n
and to each Secured Lender (in each such Secured Lender’s absolute and
\nunqualified discretion); and (ii) such additional evidence of insurance (if
\nany) as any Secured Lender may, in its absolute discretion, require. Tenant
\nhereby agrees to defend, indemnify and hold harmless Landlord and all Secured
\nLenders from and against any and all losses, liabilities, damages, costs,
\nexpenses and claims of any and every kind whatsoever which any or all of them
\nmay pay, incur or sustain, or which may be asserted against them, as a
\nconsequence or result of Tenant’s having failed to obtain, carry or maintain
\nany insurance coverage required by the provisions of this Lease. A similar
\ncertificate of insurance for any new or renewal policy that replaces any
\npolicy expiring during the Term or any Renewal Term, together with any
\nadditional evidence of such insurance that any Secured Lender may, in its
\nabsolute discretion, require, shall be delivered to Landlord as aforesaid at
\nleast twenty-five (25) days prior to the date of expiration of the old
\npolicy, together with proof reasonably satisfactory to Landlord that all
\npremiums thereon have been paid for at least the first twelve months
\nfollowing the date of such certificate.<\/p>\n
(c) Tenant and Landlord shall cooperate in connection with
\nthe collection of any insurance moneys that may be due in the event of loss,
\nand Tenant and Landlord shall execute and deliver such proofs of loss and
\nother instruments which may be reasonably required for the purpose of
\nobtaining the recovery of any such insurance moneys.<\/p>\n
(d) All property insurance policies as required by this
\nLease shall provide in substance that all adjustments for claims shall be
\nmade with the written consent of Landlord subject to the respective rights of
\nTenant and any Secured Lender as an insured or additional insured to
\nparticipate in making such adjustment.<\/p>\n
(e) Tenant shall not violate or permit to be violated any
\nof the conditions or provisions of any insurance policy required hereunder,
\nand Tenant shall so perform and satisfy or cause to be performed and
\nsatisfied the requirements of the companies writing such policies so that at
\nall times companies of good standing, reasonably satisfactory to Landlord (as
\nprovided in SECTION 7.2(b) hereof), shall be willing to write and continue
\nsuch insurance.<\/p>\n
(f) Each policy of insurance required to be obtained or
\ncaused to be obtained by Tenant as herein provided, and each certificate or
\nmemorandum therefor issued by the insurer, shall contain (i) a provision that
\nno act or omission of Tenant, Landlord or any Secured Lender shall affect or
\nlimit the obligation of the property insurance company to pay Landlord or any
\nSecured Lender the amount of any loss sustained, (ii) an agreement by the
\ninsurer that such policy shall not be canceled or modified without at least
\nthirty (30) days’ prior written notice to Landlord and each Secured Lender,
\nand (iii) a provision authorizing the waiver of subrogation by Tenant and
\nLandlord of any right to recover the amount of any loss resulting from the
\nnegligence of the other or its agents, employees or licensees.<\/p>\n
SECTION 7.3. Notwithstanding any contrary provision contained in
\nthis Lease, Tenant hereby waives any and all rights of recovery, claim,
\naction, or cause of action against Landlord or its partners, agents,
\ncontractors or employees, for any loss or damage that may occur to the
\nPremises <\/p>\n
18<\/p>\n
or the Parcels, or any property of Tenant therein or thereon, by reason of
\nfire, the elements, or any other cause which is, or is required to be,
\ninsured against under insurance policies carried or required to be carried by
\nTenant under this Lease, regardless of cause or origin, including negligence
\nof Landlord or its partners, agents, contractors or employees, and Tenant
\ncovenants that no insurer shall hold any right of subrogation against
\nLandlord or any of such other Persons and all such insurance policies shall
\nbe amended or endorsed to reflect such waiver of subrogation.<\/p>\n
SECTION 7.4. The insurance required by this Lease, at the option of
\nTenant, may be effected by blanket and umbrella policies issued to Tenant
\ncovering the Parcels and other properties owned or leased by Tenant;
\nprovided, however, that any such blanket policies shall (a) separately set
\nforth the amount of the insurance applicable to the Parcels, (b) otherwise
\ncomply with the provisions of this Lease, and (c) afford the same protection
\nand rights to Landlord as would be provided by policies individually
\napplicable to the Parcels.<\/p>\n
ARTICLE 8
\n USE OF INSURANCE PROCEEDS<\/p>\n
SECTION 8.1.<\/p>\n
(a) If all or any part of any of the Buildings or access
\nthereto shall be destroyed or damaged in whole or in part by fire or other
\ncasualty, Tenant shall give to Landlord immediate notice thereof.<\/p>\n
(b) If any such casualty damage or destruction shall (i)
\noccur at any time during the last two years of the Term or any Renewal Term,
\n(ii) render the Premises or a substantial portion thereof unusable for
\nTenant’s uses hereunder (or the permitted uses of Tenant’s assignee or
\nsublessee), and (iii) cost more than $5,000,000.00 to restore, then Landlord
\nor Tenant may in their sole discretion (but subject to any conditions
\nprecedent set out elsewhere in this SECTION 8.1), by written notice given to
\nthe other within ten (10) days after such damage or destruction, terminate
\nthis Lease (except that if, within such 10-day period, Tenant notifies
\nLandlord that it wishes to extend such period from 10 days to any date
\nspecified in the notice which is not later than three months after the date
\nof such damage or destruction, and Tenant acknowledges in writing that it
\nwill continue to pay all Rental hereunder and be responsible for all other
\nobligations of Tenant hereunder for and during such period, then if no
\nDefault has occurred such 10-day period shall be extended to the date
\nrequested in such notice for the benefit of both Landlord and Tenant, each of
\nwhom may terminate this Lease during that period as provided in this
\nsentence), in which case Landlord may obtain and retain all insurance
\nproceeds payable for or on account of such damage or loss for Landlord’s own
\naccount and, if Tenant makes the payments to Secured Lenders (if any)
\nrequired by the last sentence of this paragraph, this Lease shall thereafter
\nbe of no further effect; provided, however, that Tenant shall have the right
\nto nullify any Landlord termination by duly and timely exercising any Renewal
\nOption pursuant to ARTICLE 46 (if then available for exercise pursuant to the
\nprovisions of said ARTICLE 46). If Tenant terminates this Lease and the
\ninsurance proceeds paid to Landlord are insufficient to satisfy all amounts
\ndue on outstanding Secured Loans, then Tenant, on behalf of <\/p>\n
19<\/p>\n
Landlord, shall pay to each Secured Lender such Secured Lender’s share of
\nsuch deficiency so that all of such Secured Loans shall be paid and satisfied
\nin full (and Tenant’s payment of such deficiency shall be a condition
\nprecedent to the effectiveness of Tenant’s termination of this Lease);
\nprovided, however, that the aggregate amount Tenant shall be obligated so to
\npay to all of the Secured Lenders on account of all of the Secured Loans
\ntaken together shall be calculated in the same manner, and shall be subject
\nto the same limitation as to the principal indebtedness component thereof, as
\nis applicable to the Shortfall (defined hereinafter).<\/p>\n
(c) If any such damage or destruction does not result in
\ntermination of this Lease in accordance with SECTION 8.1(b), and provided
\nthat all monies or proceeds received by Landlord and Secured Lender from
\ninsurance provided herein (payable to either, both or jointly) (other than
\nrent insurance) are deposited into a segregated interest-bearing escrow
\naccount (which account is not available to satisfy claims of such Secured
\nLender’s general creditors) with Secured Lender and made available for
\nRestoration (defined herein), Tenant, at its sole cost and expense, for the
\nbenefit of Landlord, whether or not such damage or destruction shall have
\nbeen insured or insurable, and whether or not insurance proceeds (if any)
\nshall be sufficient for the purpose, with reasonable diligence (subject to
\nUnavoidable Delays) shall repair, alter, restore, replace and rebuild or
\nallow Landlord (at Tenant’s sole cost and expense) to repair, alter, restore,
\nreplace and rebuild (collec tively, “RESTORE”; and the work with respect
\nthereto is referred to herein collectively as “RESTORA TION”) or cause to be
\nRestored the same, to at least the extent of the value and as nearly as
\npracticable to the character of the Building existing immediately prior to
\nsuch occurrence (but in all events in compliance with all applicable laws and
\ncodes and the CC&Rs) and otherwise in substantial conformity with the Final
\nPlans therefor; and Landlord shall in no event be called upon to Restore any
\nBuilding or to pay any of the costs or expenses thereof. In the event all
\nmonies or proceeds received by Landlord and Secured Lender from insurance
\nprovided herein (payable to either, both or jointly) (other than rent
\ninsurance) are, through no fault of Tenant, not (within a reasonable time
\nafter such receipt thereof) made available for Restoration and are not
\nmaintained in an escrow account maintained by Secured Lender, Tenant, at
\nTenant’s option, may terminate this Lease upon at least 15 Business Days’
\nprior written notice to Landlord and Secured Lender, in which event Tenant
\nshall (if such monies are not, within such 15-day period, deposited with the
\nSecured Lender or otherwise made available for Restoration) be relieved of
\nall obligations hereunder (but any such purported termination by Tenant will
\nbe ineffective if, within such 15-day period, such monies are deposited with
\nthe Secured Lender or otherwise made available for Restoration). If Tenant
\neither (i) fails or neglects to Restore or cause to be Restored with
\nreasonable diligence (subject to Unavoidable Delays) the Buildings or the
\nportions thereof so damaged or destroyed or (ii) having so commenced such
\nRestoration, fails to complete or cause to be completed the same with
\nreasonable diligence (subject to Unavoidable Delays) in accordance with the
\nterms of this Lease, then Landlord or Secured Lender may complete such
\nRestoration for Tenant’s account and at Tenant’s sole cost and expense. For
\npurposes of ARTICLES 8 and 9, the “RESTORING PARTY” shall mean Tenant; or, if
\nTenant allows Landlord, and Landlord (in its sole and absolute discretion)
\nagrees, to be responsible for the Restoration, or if Landlord undertakes to
\nrestore in the event Tenant refuses or otherwise fails diligently to restore,
\nRestoring Party shall then mean Landlord.<\/p>\n
20<\/p>\n
SECTION 8.2.<\/p>\n
(a) Subject to the provisions of SECTION 8.3, Secured
\nLender shall release to Restoring Party or to Restoring Party and its
\ncontractor(s) from time to time, upon the following terms and conditions, any
\nmonies or proceeds received by Landlord or Secured Lender from insurance
\nprovided herein (payable to either, both or jointly) (other than rent
\ninsurance) or cash or the proceeds of any security deposited with Secured
\nLender pursuant to SECTION 8.5 (collectively, “RESTORATION FUNDS”). Secured
\nLender shall release to Restoring Party, as hereinafter provided, the
\nRestoration Funds, for the purpose of Restoration to be made by Restoring
\nParty to Restore the Buildings to a value not less than their value prior to
\nsuch fire or other casualty. Such Restoration shall be done in accordance
\nwith, and subject to, the provisions of ARTICLE 13, including, without
\nlimitation, the maintenance of the insurance coverage referred to in SECTION
\n13.1(d). The Restoration Funds shall be paid to or for the account of
\nRestoring Party from time to time in installments as the Restoration
\nprogresses, upon application to be submitted from time to time by Restoring
\nParty to the Secured Lender(s) as described in SECTION 8.3. The amount of any
\ninstallment to be paid to or for the account of Restoring Party shall be such
\nportion of the total Restoration Funds as the cost of work, labor, services,
\nmaterials, fixtures and equipment theretofore incorporated in the Restoration
\nbears to the total estimated cost of the Restoration, less (i) all payments
\nthereto fore made to or for the account of the Restoring Party out of the
\nRestoration Funds and (ii) a sum equal to ten percent (10%) of the amount so
\ndetermined, the sums held back pursuant to this clause (ii) to be paid to or
\nfor the account of Restoring Party in the last installment of Restoration
\nFunds upon the final completion of the Restoration. Upon payment in full for
\nthe Restoration, the balance (if any) of the Restoration Funds consisting of
\ninsurance proceeds shall be paid first to reimburse Tenant for the reasonable
\nout-of-pocket costs (if any) paid by Tenant to the engineer or architect
\ndescribed in SECTION 8.2(B) for its cost estimate referred to therein, then
\nto reimburse Landlord for the reasonable costs (if any) paid by Landlord to
\nthe engineer or architect described in SECTION 8.2(b) for its cost estimate
\nreferred to therein, then subject to the rights of any Secured Lender named
\nas an insured, any remainder shall be paid to Landlord for its own account
\nand, to the extent such balance consists of sums deposited by Tenant, shall
\n(after first paying to Landlord therefrom an amount necessary to reimburse it
\nfor the reasonable costs, if any, paid by Landlord to the engineer or
\narchitect described in SECTION 8.2(b) for its cost estimate referred to
\ntherein) be paid over to Tenant. Subject to the provisions herein, in the
\nevent that the Restoration Funds are insuffi cient for the purpose of paying
\nfor the Restoration, Tenant nevertheless shall be required to cause the
\nRestoration to be made, and shall pay or cause to be paid any additional sums
\nrequired for the Restoration.<\/p>\n
(b) Prior to the making of any Restoration which Tenant is
\nrequired to make pursuant to SECTION 8.1, Tenant shall furnish Landlord with
\nan estimate of the cost of such Restoration, prepared by a licensed
\nprofessional engineer or registered architect approved by Landlord and (if
\nLandlord so requests) any Secured Lender, which approval shall not be
\nunreasonably withheld. Landlord, at its election, may engage a licensed
\nprofessional engineer or registered architect to prepare its own estimates of
\nthe cost of such Restoration.<\/p>\n
21<\/p>\n
(c) In the event of damage to or destruction of any
\nBuilding, if any emergency situation arises involving imminent danger either
\nto human life or safety or of further substantial damage to the Premises,
\nTenant may (at Tenant’s sole cost, expense, liability and risk) take such
\nemergency actions on a temporary basis as are necessary to avoid such danger,
\nbut Tenant shall not be relieved of any of its obligations under this Lease
\n(including, without limitation, its obligations concerning Restoration or the
\napplication of all insurance proceeds to Restoration) and none of such
\nobligations shall be reduced, diminished, deferred or affected in any way.<\/p>\n
SECTION 8.3. The following shall be conditions precedent to each
\npayment made to Restoring Party as provided in SECTION 8.2:<\/p>\n
(a) there shall be submitted to the other party and the
\nSecured Lender disbursing the Restoration Funds a certificate from the
\naforesaid engineer or architect (and, if required by the Secured Lender, also
\na similar certificate from such Secured Lender’s own inspecting architect or
\nengineer) stating (i) that the sum then requested to be withdrawn either has
\nbeen paid by Restoring Party or is justly due to contractors, subcontractors,
\nmaterialmen, engineers, architects or other Persons (whose names and
\naddresses shall be stated) who have rendered or furnished work, labor,
\nservices, materials, fixtures or equipment for the work and giving a brief
\ndescription of such work, labor, services, materials, fixtures or equipment
\nand the principal subdivisions or categories thereof and the several amounts
\nso paid or due to each of said Persons in respect thereof, and stating in
\nreasonable detail the progress of the Restoration up to the date of said
\ncertificate; (ii) that the sum then requested does not exceed the value of
\nthe work, labor, services, materials, fixtures and equipment described in the
\ncertificate; (iii) that the balance of the Restoration Funds held by Secured
\nLender will be sufficient, upon completion of the Restoration, to pay for the
\nsame in full, and stating in reasonable detail an estimate of the cost of
\nsuch completion; and (iv) that to the best of such persons’s knowledge all
\nwork had been done in a good and workmanlike manner and in substantial
\ncompliance with the plans and specifications therefor which had been approved
\nby Landlord and\/or Secured Lender and with all applicable laws, ordinances
\nand the CC&R’s; and<\/p>\n
(b) there shall be submitted to the other party and to the
\nSecured Lender disbursing the Restoration Funds a contractor’s sworn
\nstatement or affidavit in statutory form relating to all work done to date
\nfor which payment is then being requested from the general contractor and all
\nappropriate subcontractors, together with supporting lien waivers in
\nstatutory form from the general contractor and all subcontractors and
\nmaterialmen (all tiers) filing notices to owner or otherwise may have a
\nlawful claim to a lien, as well as all other customary documentation (if any)
\nas may reasonably be required by any Secured Lender; and<\/p>\n
(c) with respect to any final payment, Restoring Party
\nshall furnish to the other party and the Secured Lenders a final contractor’s
\naffidavit (with supporting lien waivers) in statutory form and an affidavit
\nfrom Restoring Party that all parties having rights to lien the Premises have
\nbeen paid in full; and<\/p>\n
22<\/p>\n
(d) at the time of making such payment, no uncured Event of
\nDefault exists (the condition precedent described in this clause (d) may be
\nwaived in writing by Landlord, in its absolute discretion, unilaterally and
\nwithout the joinder or consent of any other Person).<\/p>\n
SECTION 8.4. If any material loss, damage or destruction occurs,
\nRestoring Party shall furnish or cause to be furnished to the other party and
\nall Secured Lenders holding a lien on or security interest in any of the
\ndamaged property or otherwise affected by such loss, at least ten (10) days
\nbefore the commencement of any Restoration which Restoring Party is required
\nor elects or is deemed to have elected to make pursuant to SECTION 8.1, the
\nfollowing:<\/p>\n
(a) complete plans and specifications for the Restoration
\nof the Building, prepared by a licensed professional engineer or registered
\narchitect whose qualifications shall meet with the reasonable approval of the
\nother party and such Secured Lenders, and, at the request of the other party,
\nany other drawings, information and samples that the other party may
\nreasonably request, all of the foregoing to be subject to the other party’s
\nand such Secured Lenders’ review and approval for substantial conformity with
\nthe Final Plans;<\/p>\n
(b) a general contract to perform the Restoration work for
\na stipulated sum or for cost plus a fee with an upset price, in form
\nassignable to the other party and such Secured Lenders, made with a reputable
\nand responsible contractor, providing in substance for (i) the completion of
\nthe Restoration with reasonable diligence, subject to Unavoidable Delays, in
\naccordance with said plans and specifications, free and clear of all liens,
\nencumbrances, security agreements, interests and financing statements, and
\n(ii) a payment and performance bond by sureties reasonably satisfactory to
\nthe other party and such Secured Lenders, naming the contractor as principal
\nand the other party and such Secured Lenders as dual obligees, in a penal sum
\nequal to the amount of such contract, or a clean irrevocable negotiable
\nletter of credit or other security reasonably satisfactory to the other party
\nand such Secured Lenders in an amount equal to the amount of such contract;
\nand<\/p>\n
(c) if Landlord is not the Restoring Party, an assignment
\nto Landlord of the contract so furnished and the bond, letter of credit or
\nother security so provided, such assignment to be duly executed and
\nacknowledged by Tenant, and acknowledged by the contractor, sureties and
\nother parties, and by its terms to be effective only upon any termination of
\nthis Lease or upon Land lord’s re-entry upon the Premises following an Event
\nof Default, prior to the complete performance of such contract, such
\nassignment also to include the benefit of all payments made on account of
\nsaid contract including payments made prior to the effective date of such
\nassignment.<\/p>\n
SECTION 8.5. If the estimated cost of any Restoration which Tenant
\nis required to make pursuant to SECTION 8.1 exceeds the net insurance
\nproceeds received by Landlord or the Secured Lender disbursing the
\nRestoration Funds, then, prior to the commencement of such Restoration, or
\nthereafter if it is determined that the cost to complete the Restoration
\nexceeds the unapplied portion of such insurance proceeds, Tenant shall
\ndeposit with such Secured Lender a bond, cash, irrevocable letter of credit
\nor other security reasonably satisfactory to such Secured Lender and Landlord
\nin the <\/p>\n
23<\/p>\n
amount of such excess, to be held and applied in accordance with the
\nprovisions of SECTION 8.2, as security for the timely and proper completion
\nof the work free of liens.<\/p>\n
SECTION 8.6. Except as otherwise expressly and specifically provided
\nherein, this Lease shall not terminate or be forfeited or be affected in any
\nmanner, and there shall be no reduction or abatement of the Rental payable
\nhereunder by Tenant, by reason of damage to or total, substantial or partial
\ndestruction of the Buildings or any part thereof or by reason of the
\nuntenantability of the same or any part thereof, for or due to any reason or
\ncause whatsoever, or because of any taking of all or part of the Premises by
\nthe power of eminent domain, or any other event or occurrence, and Tenant,
\nnotwithstanding any law or statute, present or future, irrevocably releases
\nand waives any and all rights to terminate this Lease or to quit or surrender
\nthe Premises or any part thereof; and Tenant expressly agrees that its
\nobligations hereunder (including, without limitation, the payment of Rental
\npayable by Tenant hereunder) shall continue under all circumstances without
\nabatement, suspension, diminution or reduction of any kind, as though the
\nBuildings had not been damaged or destroyed and no part of the Premises had
\nbeen taken.<\/p>\n
SECTION 8.7. For purposes of ARTICLES 8 and 9, if at the time of
\nRestoration there is no Secured Lender, Tenant and Landlord agree that
\nLandlord’s original construction lender shall act as Secured Lender for the
\nsole purpose of holding and disbursing the Restoration Funds. If Landlord’s
\noriginal construction lender is unwilling, or at any time refuses, to act as
\nSecured Lender for those purposes, Tenant and Landlord shall select an
\ninstitutional lender or a title insurance or trust company with offices in
\nJacksonville, Florida, mutually agreeable to both parties to act as said
\nSecured Lender for such purposes.<\/p>\n
SECTION 8.8. In no event (other than as a result of a due and proper
\ntermination of this Lease effected in accordance with the express provisions
\nhereof) shall there be any abatement, reduction or diminution of Rental in
\nthe event of any casualty regarding, relating to or affecting the Premises,
\nTenant agreeing to pay full Rental hereunder at all times after any and all
\nsuch casualties have occurred regardless of whether Tenant is then able to
\nuse or occupy the Premises and regardless of whether or not any Restoration
\nis being carried out.<\/p>\n
ARTICLE 9
\n CONDEMNATION<\/p>\n
SECTION 9.1.<\/p>\n
(a) If at any time during the Term or any Renewal Terms,
\nthe whole or substantially all of the Premises, Buildings, and
\nParking\/Driveway Facilities shall be taken or sold under threat or notice
\nthereof for any public or quasi-public purpose by any lawful power or
\nauthority by the exercise of the right of condemnation or eminent domain or
\nby agreement among Landlord, Tenant and those authorized to exercise such
\nright, this Lease and the Term or any Renewal Terms shall, on written notice
\nof such termination given by Landlord or Tenant to the other not later than
\nfive Business Days after the effective date of such taking or sale, terminate
\neffective as of the date <\/p>\n
24<\/p>\n
of such taking or sale and the Rental payable by Tenant hereunder shall be
\npaid to and apportioned as of the date of such taking or sale.<\/p>\n
(b) If the whole or substantially all of the Premises,
\nBuildings, and Park ing\/Driveway Facilities shall be taken as provided in
\nthis SECTION 9.1, the proceeds of any condemnation awards shall be paid and
\ndistributed as follows: (i) there shall first be paid to Landlord an amount
\nequal to the total of all amounts due on or outstanding under all Secured
\nLoans (but the amount so paid to Landlord under this clause (i) on account of
\nthe aggregate principal amount outstanding under the Secured Loans shall be
\nsubject to the same limitation as applies in calculating the amount of the
\nShortfall [defined hereinbelow]); (ii) there shall next be paid to Tenant a
\nsum equal to the then-unamortized cost (determined on the basis of Tenant’s
\naccounting records, which Tenant shall keep in a manner consistent with
\ngenerally accepted accounting principles) of any Capital Improvements taken
\nin such taking and which were made to the Premises by Tenant and paid for by
\nTenant with its own funds (and not with insurance or condemnation proceeds),
\nless the cost of any work with respect to such Capital Improvements which was
\nperformed by Landlord for Tenant without any charge to Tenant or were
\notherwise paid for by Landlord, whether before or after the execution and
\ndelivery of this Lease; and (iii) the balance of the award, if any, shall be
\npaid to Landlord.<\/p>\n
(c) Each of the parties agrees to execute and deliver any
\nand all documents that may be reasonably required in order to facilitate
\ncollection by them of such awards in accordance with the provisions of this
\nARTICLE 9.<\/p>\n
(d) If the whole or substantially all of the Premises shall
\nbe taken, and the total of the entire principal amount outstanding and all
\ninterest and other amounts (including, without limitation, all prepayment
\npremiums, penalties and charges) of any and every kind which have accrued or
\nwill accrue or be payable under all Secured Loans as of the time the same are
\nto be paid and satisfied in full as contemplated herein as a result of the
\ncondemnation exceeds the amount of the award paid to Landlord pursuant to
\nclause (i) of SECTION 9.1(b) (the amount of such excess is referred to herein
\nas the “SHORTFALL”), then Tenant on behalf of Landlord shall pay to each
\nSecured Lender such Secured Lender’s share of the Shortfall so that all of
\nthe Secured Loans (and all amounts payable in respect thereof) shall then be
\npaid and satisfied in full. Solely for purposes of determining the amount of
\nany Shortfall hereunder, the total principal amount (not including interest,
\nprepayment penalties or premiums, or other charges or amounts) of all Secured
\nLoans taken into consideration shall not exceed the sum of (i) $15,000,000.00
\nreduced in proportion to, and in accordance with the same time schedule as is
\napplicable to, the regularly-scheduled principal amortization (if any)
\napplicable to the first long-term Secured Loan obtained by Landlord to
\nrefinance the construction loan for the Initial Building (Landlord presently
\nanticipates that it is likely to obtain such first long-term loan from
\nNorthwestern Mutual Life Insurance Company and that the principal balance of
\nsuch loan will amortize in accordance with a schedule substantially similar
\nto that set out in EXHIBIT M attached hereto), plus (ii) the then-outstanding
\naggregate principal balance of Secured Loans (as they may theretofore have
\nbeen amortized in accordance with their respective terms) which financed
\ncosts paid or incurred for or in connection with any Additions, Expansion
\nOptions or Restorations. <\/p>\n
25<\/p>\n
Landlord shall have no obligation to disclose to Tenant the principal
\namortization schedule, or any other fact or matter relating to the amount of
\nthe indebtedness thereunder, under or concerning any Secured Loan until such
\ntime, if any, as Landlord makes a demand upon Tenant for payment of a
\nShortfall hereunder.<\/p>\n
SECTION 9.2. For purposes of this ARTICLE 9, the “date of taking”
\nshall be deemed to be the earlier of (i) the date on which actual possession
\nof the whole or substantially all of the Premises, or a part thereof, as the
\ncase may be, is acquired by any lawful power or authority pursuant to the
\nprovisions of the applicable federal or Florida state law, or (ii) the date
\non which title to the Premises or the aforesaid portion thereof shall have
\nvested in any lawful power or authority pursuant to the provisions of the
\napplicable federal or Florida state law.<\/p>\n
SECTION 9.3.<\/p>\n
(a) If part but less than substantially all of the Premises
\nor Buildings shall be taken as provided in this ARTICLE 9, and there has been
\nno taking or impairment of parking therefor or access thereto that would
\nmaterially adversely affect Tenant’s use of the remaining facilities, then
\nthis Lease and the Term or any Renewal Terms shall continue unaffected,
\nwithout abatement of the Rental or diminution of any of Tenant’s obligations
\nhereunder except as otherwise expressly provided in SECTIONS 9.3(b) and
\n9.3(c).<\/p>\n
(b) If part but less than substantially all of the
\nPremises, Buildings, Park ing\/Driveway Facilities or access thereto shall be
\ntaken, and if the governing Secured Loan documents of the Secured Lenders
\nwhose Secured Loans are secured by the portions of the Premises affected by
\nsuch taking require that there be paid to such Secured Lenders, on account of
\ntheir respective Secured Loans, any amounts (collectively, the “SECURED LOAN
\nREQUIRED PAYDOWN AMOUNT”) because of such taking, then there shall be paid to
\nsuch Secured Lenders from the condemnation award an aggregate amount equal to
\nsuch Secured Loan Required Paydown Amount provided that it does not exceed
\nthe Proportional Loan Reduction Amount (defined hereinafter); and if the
\ntotal net amount (after paying reasonable costs of collection) of all monies
\nor proceeds received by Landlord or Secured Lender from condemnation award
\nproceeds (payable to either, both or jointly) is insufficient therefor,
\nTenant shall pay such amount (subject to the limitations concerning the
\nmaximum amount of the principal indebtedness component of the Secured Loans
\nas is set out at the end of SECTION 9.1(d)) as a Shortfall hereunder, but if
\nthe total of all such net proceeds received from condemnation awards exceeds
\nthe Proportional Loan Reduction Amount (if any), such excess shall be
\ndeposited into a segregated interest-bearing escrow account with a Secured
\nLender (or alternative institution as provided herein with respect to
\ninsurance proceeds) and made available for Restoration. Under the
\ncircumstances described in the preceding sentence, Tenant agrees, at its sole
\ncost and expense, for the benefit of Landlord, whether or not the award or
\nawards, if any, shall be sufficient for the purpose, to proceed with
\nreasonable diligence (subject to Unavoidable Delays) to Restore or cause to
\nbe Restored any and all remaining parts of the Buildings not so taken so that
\nthe latter shall be a complete, rentable, self-contained architectural unit
\nin good condition and repair. Subject to the provisions and limitations in
\nthis ARTICLE 9, Landlord and any Secured Lender shall <\/p>\n
26<\/p>\n
make available to Restoring Party as much of that portion of the actual award
\n(less all reasonable expenses of collection incurred by Landlord or Secured
\nParty, and less the Secured Loan Required Paydown Amount [but not more than
\nthe Proportional Loan Reduction Amount], if any, paid to Secured Lenders; the
\nnet amount of such proceeds, after such reductions, is referred to herein as
\nthe “RESTORATION APPLICATION AMOUNT”) received by Landlord or Secured Lender,
\nif any, as may be necessary to pay the cost of Restoration of the part of the
\nBuildings remaining. If, through no fault of Tenant, either (i) the Restoration
\nApplication Amount is not made available for Restoration and is not maintained
\nin an escrow account maintained by a Secured Lender or appropriate alternative
\nescrowee (Landlord shall have the right, but no obligation, to make up any
\ndeficiency in the Restoration Application Amount from its own funds), or (ii)
\nif the Secured Loan Required Paydown Amount is greater than the Proportional
\nLoan Reduction Amount and Landlord does not make up any deficiency in the
\nRestoration Application Amount resulting therefrom, then Tenant, at Tenant’s
\noption, may terminate this Lease and thereby avoid any obligation with respect
\nto such Restoration by giving Landlord and all Secured Lenders notice of its
\nelection to terminate within 15 days of Tenant’s receiving notice that less
\nthan the Restoration Application Amount will be so deposited and made available
\nfor Restoration (but notwithstanding such termination by Tenant, Tenant will
\nstill be obligated promptly to pay to the Secured Lenders the entire
\nShortfall amount [if any] — subject to the limitations concerning the
\nmaximum amount of the principal indebtedness component of the Secured Loans
\nas is set out at the end of Section 9.1(d) — by which the Secured Loan
\nPaydown Amount [but not to exceed, for this purpose, the Proportional Loan
\nReduction Amount] exceeds the total net proceeds [after the deductions
\ndescribed hereinabove) of the condemnation award received by Landlord or
\nSecured Lenders). Tenant’s right to terminate this Lease as provided in the
\npreceding sentence shall irrevocably and unconditionally lapse, expire and be
\nof no further force or effect automatically if Tenant fails to give Landlord
\nsuch a notice of termination within such 15-day period. Such Restoration, the
\nestimated cost thereof, the payments to Restoring Party on account of the
\ncost thereof, Landlord’s and each Secured Lender’s rights to perform the same
\nand to perform Tenant’s obligations with respect to condemnation proceeds
\nheld by each of such Persons, shall be done, determined, made and governed in
\naccordance with and subject to the provisions of ARTICLES 8, 9 and 13. Any
\nbalance of the award held after completion of the Restoration shall be paid
\nto Landlord, and any cash (and the proceeds of any security) deposited by
\nTenant with Secured Lender pursuant to SECTION 9.4 remaining after completion
\nof the Restoration shall be paid to Tenant. Each of the parties agrees to
\nexecute and deliver any and all documents that may be reasonably required in
\norder to facilitate collection of the awards. If the portion of the award
\nmade available by Landlord or Secured Lender is insufficient for the purpose
\nof paying for the Restoration, Tenant shall nevertheless be required to make
\nor cause to be made the Restoration and to pay or cause to be paid any
\nadditional sums required for the Restoration. For purposes hereof,
\n“PROPORTIONAL LOAN REDUCTION AMOUNT” means, at any time, the amount
\n(expressed in dollars) equal to the product of multiplying the aggregate
\noutstanding principal balances of all Secured Loans affected by the
\ncondemnation or other taking by the fraction of which the numerator is the
\ntotal number of Rentable Square Feet taken or otherwise lost as a result of
\nsuch condemnation or other taking and the denominator is the total number of
\nRentable Square Feet in the Buildings encumbered by such Secured Loans
\nimmediately before the effective ness of such condemnation or taking.<\/p>\n
27<\/p>\n
(c) If a taking of the nature described in SECTION 9.3(A)
\noccurs and after the Restoration of any Building the number of Rentable
\nSquare Feet of such Building is less than the number prior to such taking and
\nRestoration, then, from the date of such taking the annual Fixed Rent payable
\nfor and with respect to that Building shall be the amount determined by
\nmultiplying (i) the annual Fixed Rent per Rentable Square Foot by (ii) the
\nnumber of Rentable Square Feet of the Restoration Building in question
\nremaining after the taking (as shown on the “as-built” drawings of the
\nRestored Building) and as recertified by the Architect.<\/p>\n
SECTION 9.4. If the estimated cost of any Restoration required by
\nthe terms of this ARTICLE 9 exceeds the condemnation award (after deducting
\nall reasonable expenses of collection) received by Landlord and Secured
\nLenders, then, prior to the commencement of such Restoration or thereafter if
\nit is determined that the cost to complete the Restoration exceeds the
\nunapplied portion of such award, Tenant shall deposit with a Secured Lender
\n(or suitable alternative escrowee as provided hereinabove) a bond, cash,
\nirrevocable letter of credit or other security reasonably satisfac tory to
\nLandlord and Secured Lenders in the amount of such excess, to be held and
\napplied by Secured Lender in accordance with the provisions of SECTION 9.3,
\nas security for the completion of the work free of public improvement,
\nvendors’, mechanics’, laborers’ or materialmen’s statutory or other similar
\nliens.<\/p>\n
SECTION 9.5. If the temporary use of the whole or any part of the
\nPremises shall be taken at any time during the Term or any Renewal Term for
\nany public or quasi-public purpose by any lawful power or authority by the
\nexercise of the right of condemnation or eminent domain or by agreement,
\nTenant shall give prompt notice thereof to Landlord. Except as expressly and
\nspecifically provided in this ARTICLE 9, the Term and any Renewal Terms shall
\nnot be reduced or affected in any way and Tenant shall continue to pay in
\nfull the Rental payable by Tenant hereunder without reduction or abatement,
\nand Tenant shall be entitled to receive for itself any award or payments for
\nsuch use; provided, however, that if the taking is for a period beginning
\nduring, but extending beyond the end of, the Term or any Renewal Term, such
\naward or payment shall be appor tioned between Landlord and Tenant as of the
\nlast day of the Term or any Renewal Term.<\/p>\n
SECTION 9.6. In case of any governmental action not resulting in the
\ntaking or condemnation of any portion of the Premises but creating a right to
\ncompensation therefor, such as the changing of the grade of any street upon
\nwhich the Premises abut, then, except as otherwise provided in this ARTICLE
\n9, this Lease shall continue in full force and effect without reduction or
\nabatement of Rental and, subject to the rights of the Secured Lenders, and
\nany award shall be determined by applicable law.<\/p>\n
SECTION 9.7. Notwithstanding any contrary provision in this Article,
\nwith respect to any condemnation or similar taking that occurs after the end
\nof the twentieth Lease Year, Tenant shall not be obligated to pay any
\nShortfall except a Shortfall that relates only to Secured Loans the proceeds
\nof which financed or refinanced the costs of constructing one or more
\nAdditions or other improvements other than the Initial Building as in place
\non the Commencement Date. The preceding <\/p>\n
28<\/p>\n
sentence shall not be construed as limiting or restricting in any way
\nTenant’s obligations for or concerning Restorations.<\/p>\n
SECTION 9.8. Anything contained herein to the contrary
\nnotwithstanding, Landlord shall not settle or compromise any taking or other
\ngovernmental action creating in Tenant either a right to compensation or an
\nobligation to pay all or part of the Secured Loans as provided in this
\nARTICLE 9 without the prior consent of Tenant, which consent shall not be
\nunreasonably withheld or delayed.<\/p>\n
SECTION 9.9. Notwithstanding anything herein to the contrary, in
\nconnection with any taking or threat thereof, Tenant shall be entitled, at
\nits sole expense, to make a separate claim, and to prove and receive an
\naward, for (a) the value of Tenant’s Property to the extent the same is
\ntaken, (b) any Capital Improvement owned by Tenant pursuant to ARTICLE 45,
\nand (c) any business damages, moving allowances and other expenses or claims
\npermitted by law, if any; and Landlord shall not be entitled to any portion
\nof any award made solely for such items.<\/p>\n
ARTICLE 10
\n ASSIGNMENT, SUBLETTING AND MORTGAGES<\/p>\n
SECTION 10.1. Subject to the provisions of this Lease that apply
\nthereto, Tenant shall have the absolute right, at any time when no Event of
\nDefault shall have occurred and remain uncured, upon prior written notice to
\nLandlord, to sublet, assign or otherwise transfer all or any part of its
\ninterest in the Premises or the Lease, without Landlord’s approval, written
\nor otherwise, so long as Tenant’s assignee’s or sublessee’s use of the
\nPremises or part thereof is in all respects subject to, and complies with and
\nconforms to, the provisions of this Lease and the CC&R’s and all applicable
\nlaws, rules, statutes, codes, ordinances and regulations.<\/p>\n
SECTION 10.2. In the event Tenant duly assigns this Lease, in
\nconformity with all of the applicable provisions of this Lease, to an
\nassignee who has assumed all of Tenant’s obligations under the Lease pursuant
\nto a written assumption agreement satisfactory in all respects to Landlord
\nand all Secured Lenders, then, if Tenant’s assignee (or a guarantor who
\nexecutes and delivers to Landlord a written agreement guaranteeing the
\npayment and performance of all obligations of such assignee under or
\nconcerning this Lease, which written guaranty agreement is substantially
\nidentical to the Guaranty executed by Guarantor and delivered to Tenant
\nsubstantially simultaneously with the execution of this Lease or is otherwise
\nsatisfactory in form and substance to Landlord and all Secured Lenders,
\nrespectively, in their sole, absolute and arbitrary discretion) then has a
\nCredit Rating equal to or better than A1 from Moody’s and AA minus from
\nStandard & Poor’s, and if Tenant pays Landlord a sum equal to 1% of the
\nprincipal balance of all then-outstanding Secured Loans (to the extent that
\nsuch amount is charged by, or paid or payable to, Secured Lenders holding
\nsuch Secured Loans, for, on account of, or as a consequence of such
\nassignment or such release), Tenant and Guarantor shall be freed and released
\nfrom all of their respective agreements, covenants, and obligations under
\nthis Lease and the Guaranty, <\/p>\n
29<\/p>\n
respectively. Otherwise, Tenant and Guarantor, respectively, shall remain
\nprimarily liable hereunder and with respect to this Lease and the Guaranty,
\nrespectively. Tenant and Guarantor, respectively, shall in all events remain
\nprimarily liable under this Lease and the Guaranty after, and
\nnotwithstanding, any Subleases (defined hereinafter).<\/p>\n
SECTION 10.3. If Tenant’s entire interest under this Lease is duly
\nassigned and Landlord is given notice thereof, Landlord shall accept Rental
\nfrom the assignee and, if an Event of Default has occurred and is continuing,
\nmay (in its discretion) collect and enforce Rental directly from the
\nassignee. If the Premises or any part thereof are sublet, used or occupied by
\nany Person other than Tenant, Landlord may, in its discretion, if an Event of
\nDefault has occurred and is continuing, collect and enforce Rental directly
\nfrom the subtenant or occupant. References in this Lease to use or occupancy
\nby others (that is, any Person other than the Tenant) shall not be construed
\nas limited to subtenants and those claiming through subtenants, but rather as
\nincluding also licensees, concession aires, operators and others claiming
\nunder or through Tenant immediately or remotely a legal right of possession
\nor occupancy of the Premises or any portion thereof (all such persons being
\nreferred to individually in this Lease as a “SUBTENANT” and collectively as
\n“SUBTENANTS”).<\/p>\n
SECTION 10.4. Notwithstanding anything to the contrary contained in
\nthis Article, if Tenant shall at any time or times during the Term or any
\nRenewal Term of this Lease desire to assign this Lease or sublet all or part
\nof the Premises, Tenant shall give thirty days prior written notice thereof
\nto Landlord (or 90 days prior written notice if Tenant wishes for the
\nGuarantor to be released from the Guaranty under SECTION 10.2), which notice
\nshall be accompanied by a statement setting forth in reasonable detail the
\nidentity and business address of the proposed assignee or Subtenant, its
\nproposed use of the Premises, and (in the case of a sublease) a detailed
\ndescription of the portion of the Premises to be subleased. No assignment or
\nsublease shall be valid or effective unless such notice has been duly given.<\/p>\n
SECTION 10.5. Notwithstanding anything to the contrary contained in
\nthis ARTICLE 10, it shall be a condition precedent to any assignment or
\nsubletting that each assignee shall expressly assume and agree to be subject
\nto and bound by and personally obligated and liable for, and each sublessee
\nshall agree to be subject to, all of the covenants, agreements, terms,
\nprovisions and conditions contained in this Lease, except such (if any) as by
\ntheir nature are clearly and inherently irrelevant or inapplicable, in each
\nsuch case pursuant to a written instrument satisfactory to Landlord (acting
\nreasonably) which is signed by such assignee or sublessee and delivered to
\nLandlord. Subject to SECTION 10.2: Tenant shall and will remain fully liable
\nfor the payment of all Rental due and thereafter to become due hereunder and
\nfor the performance of all of the covenants, agreements, terms, provisions
\nand conditions contained in this Lease on the part of Tenant to be performed
\nand all acts and omissions of any assignee or Subtenant or anyone claiming
\nunder or through any assignee or Subtenant which shall be in violation of any
\nof the provisions of this Lease, and any such violation shall be deemed to be
\na violation by Tenant; and, Guarantor will continue to remain fully liable
\nand obligated under the Guaranty.<\/p>\n
SECTION 10.6. With respect to each and every Sublease authorized
\nunder the provisions of this Lease, it is further agreed as follows:<\/p>\n
30<\/p>\n
(a) No subletting shall be for a term (including renewal or
\nextension options) ending later than one day prior to the expiration of the
\nTerm or any relevant Renewal Term (if exercised) of this Lease.<\/p>\n
(b) No Subtenant shall take possession of the Premises or
\nany part thereof until an executed counterpart of such Sublease, conforming
\nwith the applicable provisions and requirements of this Lease, has been
\ndelivered to Landlord.<\/p>\n
(c) Each Sublease shall expressly provide that (1) it is
\nsubject and subordinate to this Lease and to the matters to which Tenant’s
\nrights or interests under this Lease is or shall be subordinate, and that in
\nthe event of Landlord’s termination of or re-entry or dispossess under this
\nLease, Landlord may, at its option and without the consent of the Subtenant,
\ntake over all of the right, title and interest of Tenant, as sublessor, under
\nsuch Sublease, and (2) such Subtenant shall, if requested to do so by
\nLandlord (in Landlord’s absolute discretion), attorn to Landlord pursuant to
\nthe then-executory provisions of such Sublease or, at Landlord’s option,
\nenter into a direct lease on identical terms with Landlord for the balance of
\nthe unexpired term of the Sublease, except that Landlord shall not under any
\ncircumstance whatsoever be (i) liable for any previous act or omission of
\nTenant under or concerning such Sublease, (ii) subject to any offset, not
\nexpressly provided for in such Sublease, which theretofore accrued to such
\nSubtenant against Tenant, (iii) liable for any security deposited by such
\nSubtenant which has not been transferred to Landlord, (iv) bound by any
\nprevious modification of such Sublease not approved by Landlord, (v) bound by
\nany prepayment of more than one month’s rent, (vi) bound by any covenant of
\nTenant to undertake or complete any construction or improvement of the
\nPremises or any portion thereof demised by such Sublease, or (vii) bound by
\nany obligation of Tenant or any other Person to make any payment to, on
\nbehalf of, or for the account or benefit of, the Subtenant.<\/p>\n
(d) Each Sublease shall expressly provide, in addition to
\nsuch other matters as are required pursuant to this ARTICLE 10, that (1) the
\nSubtenant will not pay any rent or other sums under the Sublease for more
\nthan one month in advance of the due date for any corresponding Rental
\nobligation under this Lease, and (2) on the termination of this Lease
\npursuant to ARTICLE 25, upon Landlord’s request the Subtenant will promptly
\ndeliver to Landlord “as-built” drawings of any and all construction,
\nalteration, renovation or Restoration work performed or caused to be
\nperformed in the space demised under such Subtenant’s Sublease, and if any
\nconstruction, alteration, renovation or Restoration work with respect to such
\nspace is then proposed or in progress, such Subtenant’s drawings and
\nspecifications, if any, for such work.<\/p>\n
SECTION 10.7. Tenant shall make reasonable efforts to cause all
\nSubtenants to comply with their obligations under their respective subleases
\nor occupancy, operating, license and concession agreements, as the case may
\nbe (individually, a “SUBLEASE” and collectively, “SUBLEASES”), and Tenant
\nshall enforce with reasonable diligence all of its rights and remedies as the
\nsublessor or licensor thereunder in accordance with the terms of each of the
\nSubleases.<\/p>\n
31<\/p>\n
SECTION 10.8. The fact that a violation or breach of any of the
\nterms, provisions or conditions of this Lease results from or is caused by an
\nact or omission by any of one or more Subtenants or (unless Tenant has been
\nreleased from its obligations hereunder in connection with an assignment to
\nsuch assignee as provided hereinabove) by an assignee shall not relieve
\nTenant of Tenant’s obligations to cure, and to be responsible for all of the
\nconsequences, of such violation or breach.<\/p>\n
SECTION 10.9. To secure the prompt and full payment by Tenant of the
\nRental and the faithful performance by Tenant of all of the other terms and
\nconditions herein contained on its part to be kept and performed, Tenant
\nhereby assigns, transfers and sets over unto Landlord, subject to the
\nconditions hereinafter set forth in this SECTION 10.9, all of Tenant’s right,
\ntitle and interest in and to all assignments of its interest under this Lease
\nand all Subleases, and hereby confers upon Landlord and its agents and
\nrepresentatives a right of entry in, and sufficient possession of, the
\nPremises to permit and insure the collection by Landlord of the rentals and
\nother sums payable under the Subleases and such lease assignments, and
\nfurther agrees that the exercise of the right of entry and qualified
\npossession by Landlord shall not constitute an eviction of Tenant from the
\nPremises or any portion thereof; provided, however, that Landlord may not
\nenforce, or exercise any remedies under, such assignment to Landlord until
\n(a) an Event of Default shall have occurred and all applicable cure periods
\nshall have expired, or (b) this Lease, the Term or any Renewal Terms shall be
\ncanceled or terminated pursuant to the terms, covenants and conditions
\nhereof, or (c) there occurs repossession under a dispossess warrant or other
\njudgment, order or decree of a court of competent jurisdiction and then only
\nas to such of the Subleases (if any) that Landlord may elect to take over and
\nassume.<\/p>\n
SECTION 10.10. Tenant shall deliver to Landlord on or before each
\nDecember 31st during the Term and any Renewal Terms, a schedule of any lease
\nassignment and all Subleases, if any, which schedule shall include the
\nrespective names of any assignee and all Subtenants and, with respect to each
\nSublease, a description of the space sublet, the expiration date, any
\nextension or renewal options, rentals and other payment obligations, and any
\nother information relating to such Subleases which Landlord reasonably
\nrequests. From time to time during the Term and any Renewal Terms, Landlord
\nmay change the date on which Tenant is required to deliver such schedule by
\ngiving Tenant thirty (30) days’ prior notice thereof; provided, however, that
\nTenant shall not be required to deliver such schedule more than twice in any
\nperiod of twelve consecutive months.<\/p>\n
SECTION 10.11. Notwithstanding anything to the contrary in this
\nLease, under no circumstance whatsoever may Tenant directly or indirectly,
\nvoluntarily or involuntarily, by operation of law or otherwise, assign,
\ntransfer, convey, grant, sell, encumber, pledge or dispose of any of the
\nExpansion Options or the Renewal Options, or any other right or option of
\nTenant which is granted or expressed in ARTICLE 45 or ARTICLE 46, nor may
\nTenant contract or agree to do any of the foregoing, except (i) to an
\nassignee of all of Tenant’s right, title, estate and interest in and to this
\nLease and the Premises who acquires such interest in compliance with the
\nprovisions of SECTION 10.1 hereof, (ii) in all cases with the express prior
\nwritten consent of Guarantor, which consent may be withheld arbitrarily and
\nin the sole and absolute discretion of Guarantor, and (iii) in all cases
\n(unless Guarantor has theretofore been released from its obligations under
\nthe Lease or, simultaneously with such assignment, Guarantor is being
\nreleased and no substituted Guarantor will replace it as guarantor of <\/p>\n
32<\/p>\n
Tenant’s or the assignee’s obligations under the Lease) only upon delivery to
\nLandlord of a written instrument signed by and binding upon Guarantor, which
\ninstrument is satisfactory and acceptable to Landlord in its reasonable
\njudgment, in which Guarantor consents to the assignment and acknowledges and
\nagrees that (A) any exercise by such assignee of any Option (specifically
\nincluding, without limitation, any Expansion Option and any Renewal Option)
\nand any Lease amendment that results from or relates to any such exercise
\nwill be deemed to have been approved by Guarantor for all purposes of the
\nGuaranty and (B) all obligations of any and every kind whatsoever (including,
\nwithout limitation, all obligations for Fixed Rent and for other Rental)
\nwhich arise, accrue, relate to or result from the exercise by such assignee
\nof any or all of the Options (whether accruing or arising in, or relating to,
\nany Renewal Term or the Term as it relates to any Addition, or otherwise)
\nshall be deemed for all purposes of the Guaranty to constitute Guarantied
\nObligations arising within the Guarantied Portion of the Term (those terms
\nbeing defined for purposes hereof as they are defined in the Guaranty) for
\nwhich Guarantor will be fully liable under the Guaranty; and any document,
\ninstrument, agreement, grant, contract or other act or thing purporting to or
\nagreeing to accomplish or effect any of the foregoing to or in favor of a
\nPerson other than an assignee satisfying the requirements of the preceding
\nclauses (i), (ii) and (iii) shall be absolutely and completely invalid, void
\nab initio, and of no force or effect whatsoever.<\/p>\n
SECTION 10.12.<\/p>\n
(a) Notwithstanding anything which may be to the contrary
\nin SECTION 10.7, Landlord covenants and agrees, for the benefit of any
\nSubtenant who has duly subleased any space in the Premises in conformity with
\nall applicable conditions, requirements and provisions of this Lease, that on
\nand subject to the conditions set out in the proviso to this sentence,
\nLandlord shall recognize the Subtenant as the direct tenant of Landlord upon
\nthe termination of this Lease pursuant to any of the provisions of ARTICLE 25
\nand the termination of any other Sublease superior to the Sublease of such
\nSubtenant, but only if (1) Landlord (acting reasonably) is satisfied that the
\nGuaranty will remain in effect thereafter and Guarantor remains ready,
\nwilling and able to perform all of its obligations thereunder, (2) such
\nSubtenant’s Sublease (A) obligates the Subtenant to pay, as rent thereunder,
\ntotal amounts each month which are not less (per Rentable Square Foot) in
\ntotal than the Rental payable under this Lease by Tenant for such space, (B)
\nobligates the Subtenant to pay and perform all other obligations that Tenant
\nis obligated to pay and perform under this Lease, and (C) is substantially
\nidentical to this Lease, and (3) each Secured Lender shall have agreed in
\nwriting that it will not join the Subtenant as a party defendant in any
\nforeclosure action or proceeding which may be instituted or taken by the
\nSecured Lender or evict the Subtenant from the portion of the Premises
\ndemised to it except by reason of the Subtenant’s default under its Sublease
\nor affect any of the Subtenant’s rights under its Sublease by reason of any
\ndefault under such Secured Lender’s Secured Loan; provided, however, that at
\nthe time of the termination of this Lease (i) no default exists under the
\nSubtenant’s Sublease which would then permit the landlord thereunder to
\nterminate the Sublease or to exercise any dispossess or similar remedy
\nprovided for therein, and (ii) the Subtenant executes and delivers to
\nLandlord an instrument, satisfactory in form and substance to Landlord,
\nconfirming the agreement of the Subtenant to attorn to Landlord and to
\nrecognize Landlord as the Subtenant’s landlord under the Sublease, which
\ninstrument shall (A) set out such Subtenant’s agreement to <\/p>\n
33<\/p>\n
deliver to Landlord and its designees such estoppel or confirmation letters
\nconcerning such Sublease as Landlord may request from time to time and (B)
\nprovide that neither Landlord nor anyone claiming by, through or under
\nLandlord, shall be:<\/p>\n
(1) liable for any act or omission of any prior
\n sublandlord (including, without limitation, the then-defaulting
\n sublandlord),<\/p>\n
(2) subject to any offsets or defenses which the
\n Subtenant may have against any prior sublandlord (including, without
\n limitation, the then-defaulting sublandlord),<\/p>\n
(3) bound by any payment of rent which the Subtenant
\n might have made for more than one month in advance of the due date for
\n any corresponding Rental obligation under this Lease to any prior
\n sublandlord (including, without limitation, the then-defaulting
\n sublandlord),<\/p>\n
(4) liable for any security deposited by such
\n Subtenant which has not been transferred to Landlord,<\/p>\n
(5) bound by any covenant to undertake or complete
\n any construction or improvement of the Premises or any portion thereof
\n demised by said Sublease,<\/p>\n
(6) bound by any obligation to make any payment to
\n the Subtenant, it being expressly understood (without limitation of the
\n foregoing) that Landlord shall not be bound by any obligation to make
\n any payment to, on behalf of or for the account or benefit of a
\n Subtenant with respect to construction performed by or on behalf of
\n such Subtenant at the subleased premises, or<\/p>\n
(7) bound by any modification of the Sublease which
\n reduces the fixed rent, additional rent, supplemental rent or other
\n charges or amounts payable by the Subtenant under the Sublease (except
\n to the extent equitably reflecting any reduction in the space covered
\n by the Sublease), or shortens or extends the term thereof, or increases
\n the obligations of the landlord thereunder, or otherwise materially
\n adversely affects the rights or interests of the landlord thereunder,
\n made without the express written consent of Landlord.<\/p>\n
(b) If a Subtenant entitled to such recognition, or Tenant
\non behalf of such Subtenant, shall so request in writing, Landlord shall
\nexecute and deliver an agreement, in form and substance reasonably
\nsatisfactory to Landlord, Tenant and such Subtenant, confirming that, subject
\nto the provisions of clauses (i) and (ii) of SECTION 10.12(a) and the other
\napplicable provisions and conditions of that Section, such Subtenant is
\nentitled to such recognition.<\/p>\n
SECTION 10.13. Prior to the Commencement Date, except for any
\nSecured Loan, Landlord shall not, whether voluntarily, involuntarily, or by
\noperation of law or otherwise, assign, encumber, pledge, grant a security
\ninterest in, or otherwise transfer all or any portion of Landlord’s interest
\nin<\/p>\n
34<\/p>\n
this Lease or the Premises without obtaining the prior written consent of
\nTenant, which may be given or withheld in Tenant’s sole discretion. For
\npurposes of this SECTION 10.13, if Landlord is a corporation or partnership,
\nand if at the time prior to the Commencement Date the Person or Persons which
\nowns or own a majority voting control of such corporation’s shares or the
\ngeneral partner’s interest in such partnership, as the case may be, ceases or
\ncease to own, directly or indirectly, a majority of those voting control
\nshares or general partner’s interest, as the case may be, whether by
\noperation of law or otherwise, any such event shall be deemed to be an
\nassignment of this Lease as to which Tenant’s prior consent shall be
\nrequired. After the Commencement Date, Landlord may assign, encumber,
\nmortgage, pledge, grant a security interest in, or transfer all or any part
\nof its interest in the Lease and the Premises without restriction or
\nlimitation of any kind, provided that the Person or Persons who then acquire
\nor own Landlord’s interest in the Lease or Premises, including without
\nlimitation the purchaser or transferee in any sale or transfer, must have the
\ncapability to and expressly agree in writing to assume and carry out any and
\nall agreements, covenants and obligations of Landlord hereunder, in which
\nevent the original Landlord shall be freed and relieved of, and released
\nfrom, all of its agreements, covenants and obligations under the Lease.
\nAnything in the preceding portions of this SECTION 10.13 or elsewhere in this
\nLease to the contrary notwithstanding, Landlord may, at any time or from time
\nto time, freely and without restriction or limitation of any kind, assign,
\nencumber, mortgage, pledge, grant a security interest in, or transfer all or
\nany part of its right, title, interest or estate in, under or to the Lease,
\nthe Premises and the Parcels to any Secured Lender (or such Secured Lender’s
\ndesignee in the case of a conveyance in lieu of foreclosure) or to any
\npurchaser at a foreclosure, trustee’s, or other similar sale; and any and all
\nSecured Lenders, their designees, and such purchasers, and their successors,
\npurchasers and assigns, shall be free of all of the restrictions and
\nlimitations set out in the preceding sentences of this SECTION 10.13.<\/p>\n
SECTION 10.14. Tenant shall not place any advertising signs on the
\nPremises or otherwise advertise for subtenants or lease assignments without
\nLandlord’s prior written approval, which Landlord will not withhold
\nunreasonably; provided, however, that in no event shall Tenant place any
\nadvertising signs on the Premises within the final two years of the Term or
\nany Renewal Term. Any advertising sign which Tenant does place or allow to
\nremain on the Premises shall at all times be clean, neat, dignified and in
\nfirst-class condition. Without limiting the generality of the preceding
\nsentence: no advertising sign or other advertisement shall be placed, or be
\nallowed to remain, on the Premises in violation of any applicable law, code,
\nordinance or CC&Rs; no advertising sign shall remain on the Premises for
\nlonger than six months without being removed or replaced by a new sign which
\nsatisfies all of the requirements of this SECTION 10.14; and, any advertising
\nsign placed or allowed to remain on the Premises shall expressly state that
\nany available space is being offered by the lessee thereof for assignment or
\nsublet.<\/p>\n
SECTION 10.15.<\/p>\n
(a) Tenant may from time to time mortgage or grant a
\nsecurity interest in its rights under this Lease (including its option and
\nother rights hereunder) and its leasehold interest in the Premises (a
\n“LEASEHOLD MORTGAGE”), but only on and subject to all of the conditions and
\nprovisions applicable to an outright assignment of Tenant’s interest
\nhereunder as set out herein. On and subject <\/p>\n
35<\/p>\n
to the satisfaction of all such conditions and provisions, the holder of any
\nLeasehold Mortgage (a “LEASEHOLD MORTGAGEE”) may be granted all rights and
\nprivileges of the Tenant under this Lease and may exercise any or all such
\nrights in accordance with the provisions of the Leasehold Mortgage, but
\nLandlord shall have no obligation to recognize or deal with any Leasehold
\nMortgagee unless and until all of such conditions and provisions have been
\nfully satisfied and complied with. Tenant hereby agrees to defend, indemnify
\nand hold Landlord harmless from and against any and all losses, liabilities,
\ndamages, costs, expenses and claims of any and every kind which Landlord may
\npay, suffer or incur, or which may be asserted against Landlord, as a result
\nor consequence of Landlord’s dealing with or taking any action (or refraining
\nfrom taking any action) requested by any Leasehold Mortgagee.<\/p>\n
(b) Within 30 days after being requested in writing to do
\nso by Tenant, Landlord will deliver to Tenant or any Leasehold Mortgagee
\ndesignated in writing by Tenant to Landlord a reasonable estoppel letter
\nconfirming (subject to such exceptions, qualifications, limitations or
\nclarifications, if any, that Landlord may consider appropriate) the
\nfollowing: (i) the existence of this Lease and any amendments or
\nmodifications thereto, (ii) the absence of any material defaults under this
\nLease by Tenant known to Landlord or, if such defaults exist, identifying
\nthem, (iii) the Rental payable under this Lease and whether any waivers or
\nconcessions have been granted by Landlord with respect thereto, and (iv) such
\nother information readily available to Landlord as Tenant or such Leasehold
\nMortgagee may reasonably request.<\/p>\n
(c) Landlord agrees that if requested to do so in writing
\nby Tenant and any one Leasehold Mortgagee, Landlord will (a) send to such
\nLeasehold Mortgagee, at its address theretofore furnished to Landlord by
\nTenant in a written notice hereunder, a copy of any notice of default which
\nLandlord may thereafter give under this Lease to Tenant, and (b) accept from
\nsuch Leasehold Mortgagee any complete curing of any Default by Tenant
\nhereunder on the same basis, within the same period of time, and subject to
\nthe same conditions, as Landlord would have been obligated to accept if such
\ncure had been effected by Tenant. Landlord shall not be required to
\nsubordinate any of its rights, titles, estates or interests to any Leasehold
\nMortgage.<\/p>\n
ARTICLE 11
\n LANDLORD’S AND TENANT’S PROPERTY<\/p>\n
SECTION 11.1.<\/p>\n
(a) Tenant acknowledges that the Buildings and all of the
\nmaterials and Equipment incorporated therein are the property of Landlord,
\nand Tenant agrees that, except for Tenant’s Property and except as provided
\nin ARTICLE 45, all materials and Equipment incorporated into any Building at
\nany time during the Term shall immediately become and constitute the property
\nof Landlord, and that title to all of the Buildings and such materials and
\nEquipment shall continue in Landlord.<\/p>\n
36<\/p>\n
(b) Tenant covenants and agrees that all Construction
\nAgreements between Tenant and any contractor shall include the following
\nprovision VERBATIM: “[contractor] [subcontractor] [materialman] shall look
\nsolely to [Tenant] [contractor][subcontractor] for payment for any and all
\nmaterials sold, delivered or installed and for all services performed and
\nlabor provided, it being expressly understood and agreed that Landlord shall
\nnot be liable in any manner for payment or otherwise to [contractor]
\n[subcontractor] [materialman] for or in connection with any such materials,
\nservices or labor, and Landlord shall have no obligation to pay any
\ncompensation to [contractor] [subcontractor][materialman] for or on account
\nof such services, labor or materials becoming incorporated in the Premises of
\n[insert name of the Landlord]; and [contractor][subcontractor] [materialman]
\nshall not under any circumstance have or assert any lien or claim for lien
\nagainst the Premises or Landlord’s right, title, interest or estate therein
\nor thereto.”<\/p>\n
SECTION 11.2. All movable partitions, business and trade fixtures,
\nmachinery and equipment, communications equipment and office equipment and
\nother fixtures and personal property, whether or not attached to or built
\ninto the Premises, which are installed in the Premises by or for the account
\nof Tenant and which can be removed without structural damage to the Building,
\nand all furniture, furnishings and other articles of movable personal
\nproperty installed by or on account of Tenant and located in the Premises
\n(herein collectively called “TENANT’S PROPERTY”), shall be and shall remain
\nthe property of Tenant and may be removed by Tenant at any time during the
\nterm of this Lease or within 30 days after the Expiration Date; provided,
\nhowever, that if any of Tenant’s Property is removed at any time (whether
\nbefore or after the Expiration Date), Tenant shall repair or pay the cost of
\nrepairing any damage to the Premises or to the Building resulting from the
\ninstallation and removal thereof; and provided further, that it shall be a
\ncondition of Tenant’s allowing any of Tenant’s Property to remain on the
\nPremises after the Expiration Date that it be in such condition and location
\nthat Landlord and its designees shall at all times after the Expiration Date
\nhave full and free access to all parts of the Premises (including, without
\nlimitation, all interior portions of all Buildings) to do any repairs,
\nreplacements, construction, maintenance, improvements or other work that
\nLandlord may wish to do, and Landlord is hereby irrevocably granted full and
\ncomplete authority to move any and all of Tenant’s Property, at Tenant’s cost
\nand expense, to the extent reasonably necessary or useful to permit or
\nfacilitate Landlord’s doing any of such work, and Landlord shall have no
\nliability or responsibility of any kind for or on account of any damage to or
\ndestruction of Tenant’s Property which results from the foregoing (except for
\nany such damage caused by Landlord’s malicious or willful damage thereto).<\/p>\n
SECTION 11.3. Omitted.<\/p>\n
SECTION 11.4. Any items of Tenant’s Property which shall remain in
\nthe Premises after the 30th day following the Expiration Date shall be deemed
\nto have been abandoned, and in such case all such items shall automatically
\nbe and become Landlord’s property, and may be retained by Landlord as its
\nproperty or removed and disposed of by Landlord, without accountability, in
\nsuch manner as Landlord shall determine, at Tenant’s expense. Landlord shall
\nhave no obligation to Tenant with respect to any items of Tenant’s Property
\nremaining in the Premises after the Expiration Date. Tenant shall pay to
\nLandlord, on demand, the total amount of the expenses paid or incurred <\/p>\n
37<\/p>\n
by Landlord for or in connection with the removal, storage and disposition of
\nsuch items, less the net salvage amount (if any) actually received by
\nLandlord therefor.<\/p>\n
ARTICLE 12
\n REPAIRS; SERVICES<\/p>\n
SECTION 12.1. Except for Landlord’s construction and (if any) repair
\nobligations expressly set forth herein, Tenant, at its sole cost and expense,
\nthroughout the Term and all Renewal Terms (if exercised), shall take good
\ncare of the Parcels including, without limiting the generality of the
\nforegoing, all structural components (including but not limited to all roofs,
\nfoundations, slabs, and supporting members), non-structural items, building
\nsystems, parking areas, driveways and other paved surfaces, and sidewalks and
\ncurbs in front of or adjacent to the Parcels, all landscaping and all
\nirrigation and landscape watering systems, all water, sewer and gas
\nconnections, pipes and mains which service the Parcels and which neither the
\nCity of Jacksonville, the Association, Wilma nor a utility company is
\nobligated to repair and maintain, and all Equipment, and shall keep and
\nmaintain the Parcels in good and safe order and working condition, and make
\nall repairs therein and thereon necessary to keep the same in good and safe
\norder and working condition and to comply with all applicable laws (including
\nbut not limited to the Americans with Disabilities Act), ordinances, orders,
\nrules, regulations, codes and requirements of the City of Jacksonville and
\nall other Governmental Authorities, howsoever the necessity or desirability
\nof such repairs may occur, except for: (a) ordinary wear and tear (but Tenant
\nshall be obligated to perform reasonable maintenance and shall also be
\nobligated to perform all appropriate repairs as and when they become
\nnecessary even if they are necessitated by the effect of ordinary wear and
\ntear); (b) damage by the elements, fire and other casualties unless Tenant is
\nrequired by the provisions of this Lease, applicable law or the CC&Rs to
\nrepair and except that Tenant shall do such repairs, maintenance and other
\nthings described hereinabove to the extent that such damage is covered by
\ninsurance carried or required to be carried by Tenant hereunder; or (c)
\nrepairs or maintenance required as a result of the wrongful acts or wrongful
\nfailure to act of Landlord (but Tenant shall be required to do such repairs
\nor maintenance to the extent that the same is covered by insurance carried or
\nrequired to be carried by Tenant hereunder). (The provisions of this SECTION
\n12.1 shall not be construed as negating Tenant’s authority to make
\nalterations to the extent expressly permitted by other provisions of this
\nLease.) The necessity and adequacy of repairs made or to be made shall be
\nmeasured by standards which are appropriate for buildings of similar age,
\nconstruction and use that are situated in the City of Jacksonville, Florida.
\nTenant shall not commit or suffer, and Tenant shall use all reasonable precau
\ntions to prevent, waste, damage, or injury to the Parcels. All repairs made
\nby Tenant shall be at least equal in quality and class to the original work
\nand shall be made in compliance with (i) all rules, orders, regulations and
\nrequirements of the Florida Board of Fire Underwriters or any successor
\nthereto and (ii) all applicable laws, ordinances, orders, rules, regulations,
\ncodes and requirements of the City of Jacksonville and all other Governmental
\nAuthorities, and (iii) the CC&R’s. When used in this Lease, the terms
\n“REPAIR” or “REPAIRS” shall include all alterations, additions, installa
\ntions, replacements, removals, renewals and Restorations. With respect to the
\nrepair of the Premises required as a result of any casualty or taking, if any
\nof Tenant’s obligations under this SECTION 12.1 <\/p>\n
38<\/p>\n
shall be inconsistent with the requirements for Restoration under ARTICLES 8
\nand 9 hereof, the provisions of ARTICLES 8 and 9 shall govern.<\/p>\n
SECTION 12.2. Tenant, at its sole cost and expense, shall keep and
\nmaintain in clean and orderly condition the public and common portions and
\nareas of the Parcels as necessary and keep clean and free from dirt, rubbish,
\nobstructions and encumbrances, the sidewalks, driveways, parking areas,
\ngrounds, and curbs on, in front of or adjacent to the Parcels, and the plazas
\non the Parcels. Without limiting the generality of the foregoing, Tenant
\nshall, at its expense, be responsible for causing the observance and
\ncompliance with all requirements for the landscaping, irrigation,
\nmaintenance, repair, cleanliness and condition of the Parcels as set out in
\nthe CC&Rs or in Section 12 of the Agreement for Purchase and Sale between
\nWilma (or its Affiliate) and Landlord pursuant to which Landlord purchased
\nand acquired the Parcels; provided, however, that nothing herein shall be
\ndeemed to obligate Tenant to be responsible for the initial installation of
\nirrigation equipment or landscaping as required therein.<\/p>\n
SECTION 12.3. Tenant’s maintenance obligations shall include but not
\nbe limited to:<\/p>\n
a. Cleaning of the windows, both interior and exterior, no less
\n frequently than every six months.<\/p>\n
b. Painting of the exterior surface of the tilt-up panels with
\n the appropriate materials in a timely fashion to insure that
\n each Building maintains a professional exterior appearance.<\/p>\n
c. Maintain the electrical circuitry with appropriate cleaning
\n and inspection by an electrician on an annual basis.<\/p>\n
d. Follow and perform the maintenance guidelines as outlined in
\n the operational and maintenance manuals for each and every
\n piece of equipment or material installed in or on any Building
\n by the Landlord.<\/p>\n
e. Maintain the landscape as required by the CC&R’s.<\/p>\n
f. Maintain the exterior masonry that forms the exterior of the
\n office portion of each Building.<\/p>\n
g. Maintenance of the parking lots (including repairs caused by
\n ordinary wear and tear).<\/p>\n
SECTION 12.4. Effective as of the Commencement Date, Landlord
\nassigns to Tenant all assignable warranties from contractors, vendors,
\nmanufacturers and others that Landlord may obtain in connection with its
\nconstruction or installation of any Building (including, without limitation,
\nany Equipment) or other improvement on the Land (each such warranty being
\nreferred to herein as a “VENDOR’S WARRANTY”). Vendors’ Warranties so assigned
\nin connection with the construction of the <\/p>\n
39<\/p>\n
Initial Building shall be substantially in accordance with those described on
\nEXHIBIT H attached hereto in the column captioned “WARRANTY”. (If Tenant
\ntimely so requests of Landlord in writing, Landlord will cooperate in efforts
\nby Tenant to obtain, at Tenant’s sole cost, any of the additional warranty
\nextensions from vendors as are described on EXHIBIT H, but Landlord shall
\nhave no liability or obligation of any kind under or concerning such
\nadditional warranty extensions or on account of their unavailability.)
\nLandlord warrants to Tenant (such warranty being referred to herein as
\n“LANDLORD’S BACKUP WARRANTY”) that any Building constructed by Landlord for
\nTenant on the Land and leased by Landlord to Tenant under this Lease will be
\nfree of substantial defects in materials and workmanship for a period of one
\nyear from the date (which, in the case of the Initial Building, will be the
\nCommencement Date) on which this Lease first becomes applicable to such
\nBuilding; provided, however, that (i) with respect to such items as are also
\nthe subject of a Vendor’s Warranty, (A) Landlord’s Backup Warranty as set out
\nand described in the preceding portion of this sentence will be for a period
\nof two years (except for elevator, as to which it will remain one year) from
\nthe date on which this Lease first becomes applicable to such Building, and
\n(B) Tenant shall not have, and will not assert, any claim against Landlord
\nunder or with respect to Landlord’s Backup Warranty except for a claim as to
\nwhich Tenant has first made reasonably diligent efforts, in good faith, to
\nobtain performance from the warrantor under the Vendor’s Warranty but such
\nwarrantor has failed to perform under its Vendor’s Warranty, and (ii)
\nLandlord’s Backup Warranty is the sole and exclusive warranty of Landlord
\nconcerning the Parcels, and Tenant shall not have or assert (and Tenant
\nirrevocably waives and disclaims) any other warranty or basis for a claim in
\nthe nature of a warranty claim against Landlord for or concerning any
\nBuilding or other improvement or the condition, quality, materials,
\nworkmanship, fitness, usefulness or utility thereof. For purposes of
\nsatisfying the one-year or two-year periods (as the case may be) applicable
\nto Landlord’s Backup Warranty, Tenant will be deemed to have asserted a claim
\nthereunder as of the date when Tenant shall have asserted such claim with
\nreasonable particularity, in writing, to and against the relevant vendor and
\nshall have delivered a complete copy of such written claim to Landlord.<\/p>\n
ARTICLE 13
\n CHANGES, ALTERATIONS AND ADDITIONS<\/p>\n
SECTION 13.1. Subject to ARTICLES 8, 9 and 13, and except for
\nconstruction which Landlord performs (or causes to be performed) in
\nconnection with the carrying out of its obligations with respect to duly
\nexercised Expansion Options, neither Tenant nor Landlord shall demolish,
\nreplace or materially alter any Building or any part thereof, or make any
\naddition thereto, or construct any additional building, whether voluntarily
\nor in connection with any maintenance, repair or Restoration required by this
\nLease (collectively, “CAPITAL IMPROVEMENTS”; and, individually, a “CAPITAL
\nIMPROVEMENT”), unless the following requirements and, if applicable, the
\nadditional requirements set forth in SECTION 13.2, are met (provided,
\nhowever, that this Article shall not apply as to Landlord with respect to
\nParcels as to which no Expansion Option has been validly exercised and no
\nExpansion Option remains unexercised and subject to future exercise by
\nTenant):<\/p>\n
(a) Each Capital Improvement shall be made with reasonable
\ndiligence (subject to Unavoidable Delays) and in a good and workmanlike
\nmanner and in compliance with (i) all <\/p>\n
40<\/p>\n
applicable licenses, permits and authorizations and all applicable building
\nand zoning laws, (ii) all other applicable laws, ordinances, orders, rules,
\nregulations and requirements of all Governmental Authorities, (iii) the
\norders, rules, regulations and requirements of any Board of Fire Underwriters
\nhaving jurisdiction or any similar body exercising similar functions, and
\n(iv) all applicable requirements of the CC&Rs.<\/p>\n
(b) Each Capital Improvement shall substantially conform to
\nthe plans and specifications for the Capital Improvement, as the same may be
\napproved pursuant to SECTION 13.2 or, if SECTION 13.2 is not applicable
\nthereto, the Final Plans therefor.<\/p>\n
(c) Any Capital Improvement undertaken by Tenant shall be
\nconstructed so that the Landlord’s interest in the Premises and the property
\nand assets (including, without limitation, all Rental payable under this
\nLease) of, or funds appropriated to, Landlord, shall at all times be free of
\nliens, claims for lien, security interests or other encumbrances for or on
\naccount of labor, services or materials supplied or claimed to have been
\nsupplied to or for the benefit of, or installed in, the Premises.<\/p>\n
(d) No Capital Improvement shall be undertaken until the
\nparty undertaking the Capital Improvement (“RESPONSIBLE PARTY”) shall have
\ndelivered to the other (“NONRESPONSIBLE PARTY”) insurance policies or
\nabstracts thereof issued by responsible insurers, bearing notations
\nevidencing the payment of premiums or accompanied by other evidence
\nsatisfactory to Nonresponsible Party of such payments, for the following
\ninsurance, which shall be kept in full force and effect until the substantial
\ncompletion of the Capital Improvement:<\/p>\n
(i) comprehensive general liability insurance, naming
\n Responsible Party as the insured and Nonresponsible Party and each
\n Secured Lender as additional insureds, such insurance to insure against
\n liability for bodily injury and death and for property damage in an
\n amount as provided in SECTION 7.1(a)(ii), such insurance to include
\n operationspremises liability, contractor’s protective liability on the
\n operations of all subcontractors, completed operations, broad form
\n contractual liability (designating the indemnity provisions of the
\n Construction Agreements if such coverage is provided by a contractor),
\n and if the contractor is undertaking foundation, excavation or
\n demolition work, an endorsement that such operations are covered and
\n that the “XCU Exclusions” have been deleted;<\/p>\n
(ii) automobile liability and property damage
\n insurance as described in SECTION 7.1(a)(iii);<\/p>\n
(iii) workers’ compensation providing statutory
\n benefits for all Persons employed in connection with the construction
\n at the Premises;<\/p>\n
(iv) builder’s all-risk insurance written on a
\n completed value basis with limits and other coverage (including
\n coverage for changes in ordinances and laws by Government Authorities
\n resulting in consequential and contingent liabilities or increases in<\/p>\n
41<\/p>\n
the cost of construction, with such limits as are reasonably required
\n by Nonresponsible Party). In addition, such insurance (x) shall contain
\n an authorization for the waiver of subrogation by Tenant and Landlord,
\n and an endorsement stating that “permission is granted to complete and
\n occupy,” and (y) if any offsite storage location listed with
\n Responsible Party’s insurer is used, shall cover, for full insurable
\n value, all materials and equipment which have been delivered to and are
\n stored at any such offsite storage location and which are intended for
\n use with respect to the Premises.<\/p>\n
Any proceeds received pursuant to the insurance coverage required under
\nSECTION 13.1(d)(iv) shall be paid in accordance with the provisions of
\nSECTION 7.2(a). Responsible Party shall comply with the provisions of
\nSECTIONS 7.1(b), 7.2(b) and 7.2(d) – 7.2(f) with respect to the policies
\nrequired by this SECTION 13.1(d). If under the provisions of any casualty,
\nliability or other insurance policy or policies then covering the Premises or
\nany part thereof any consent to such Capital Improvement by the insurance
\ncompany or companies issuing such policy or policies shall be required to
\ncontinue and keep such policy or policies in full force and effect,
\nResponsible Party shall obtain such consents and pay any additional premiums
\nor charges therefor that may be imposed by said insurance company or
\ncompanies.<\/p>\n
(e) Nonresponsible Party shall not refuse to join in the
\napplications for such licenses, permits and authorizations, provided the same
\nare made without cost or expense to Nonresponsible Party and will not in any
\nway diminish the development rights of any Parcel which is not included
\nwithin the Premises. Copies of all required permits and authorizations,
\ncertified to be true copies thereof by Responsible Party shall be delivered
\nto Nonresponsible Party prior to the commencement of any Capital Improvement.<\/p>\n
SECTION 13.2. Responsible Party shall furnish to Nonresponsible
\nParty at least ten (10) days before the commencement of any Capital
\nImprovement, the items described in SECTION 8.4 with respect to the Capital
\nImprovements.<\/p>\n
SECTION 13.3. Tenant shall pay to Landlord, within ten (10) days
\nafter Landlord’s demand therefor, Landlord’s reasonable costs and expenses of
\nreviewing plans and specifications incurred by it if it is the Nonresponsible
\nParty.<\/p>\n
SECTION 13.4. Title to all additions, alterations, improvements and
\nreplacements made to the Building, including, without limitation, Capital
\nImprovements, shall be the property of the Responsible Party until the
\nExpiration Date, at which time title thereto and ownership thereof shall (if
\nnot already vested in Landlord) automatically vest in Landlord as provided in
\nSECTION 11.1(a), without any obligation by Landlord to pay any compensation
\ntherefor to Tenant, or at Landlord’s request, Tenant shall, at Tenant’s cost,
\npromptly remove the Capital Improvements and restore the Premises to their
\noriginal condition.<\/p>\n
SECTION 13.5. Omitted.<\/p>\n
42<\/p>\n
SECTION 13.6. Responsible Party shall use reasonable efforts to
\ncause its contractors and all other workers at the Premises connected with
\nany maintenance, repairs, Restorations, additions, alterations, improvements
\nand replacements made to the Building, including, without limitation, any
\nCapital Improvements, to work harmoniously with each other and with the
\ncontractors and other workers of Nonresponsible Party, and neither party
\nshall engage in or permit, nor shall use reasonable efforts to suffer, any
\nconduct which may disrupt such harmonious relationship.<\/p>\n
ARTICLE 14
\n REQUIREMENTS OF PUBLIC AUTHORITIES AND OF
\n INSURANCE UNDERWRITERS AND POLICIES; OBLIGATIONS
\n UNDER OTHER SUPERIOR AGREEMENTS<\/p>\n
SECTION 14.1.<\/p>\n
(a) Unless required by the express provisions of this Lease
\nto have been obtained or caused to be obtained by Landlord or another Person
\nclaiming by, through or under Landlord, throughout the Term or any Renewal
\nTerms (if exercised) Tenant, at its sole cost and expense, shall (i) timely
\nobtain and thereafter keep in full force and effect all licenses, permits,
\nauthorizations and approvals of Governmental Authorities required for the
\nuse, occupancy, operation, maintenance, repair and insurability of the
\nParcels, and (ii) unless caused by the negligence or wrongful acts of
\nLandlord, promptly comply with and discharge of record any violations of any
\nand all applicable present and future laws, rules, orders, ordinances,
\nregulations, statutes, requirements, codes, resolutions and executive orders
\nnow existing or hereafter created, of all Governmental Authorities and of any
\nand all of their departments and bureaus and of any applicable Fire Rating
\nBureau or other body exercising similar functions (collectively,
\n“REQUIREMENTS”) affecting the Parcels without regard to the nature of the
\nwork required to be done, whether ordinary or extraordinary, foreseen or
\nunforeseen or involving or requiring any Capital Improvements, structural
\nchanges, alterations or additions in or to the Parcels and whether or not
\nsuch changes, alterations or additions are required on account of any
\nparticular use to which the Premises or any part thereof may have been, then
\nare being, or are proposed by Tenant (or anyone holding by, through or under
\nTenant) to be, put. Tenant also shall comply with any and all provisions and
\nrequirements of any casualty, liability or other insurance policy required to
\nbe carried by Tenant under the provisions of this Lease.<\/p>\n
SECTION 14.2. Tenant shall have the right, after notice to Landlord,
\nto contest by appropriate legal proceedings the validity of any Requirements
\nor the application thereof, at Tenant’s sole cost and expense, but only so
\nlong as neither the Parcels nor any part thereof, nor any part of the rents,
\nissues and profits thereof, would, by reason of such postponement or
\ndeferment, be, in the reasonable judgment of Landlord, in danger of being
\nforfeited or lost, or becoming unavailable to Landlord or any Secured Lender
\nor diminished in value. During such contest, compliance with any such
\ncontested Requirements may, subject to the following provisions of this
\nSection, be deferred by Tenant. Any such proceeding instituted by Tenant
\nshall be begun as soon as is reasonably possible after the issuance of any
\nsuch contested matter and shall be prosecuted in good faith and with
\nreasonable diligence to a final determination by the court or other
\nGovernmental Authority having <\/p>\n
43<\/p>\n
final jurisdiction. Notwithstanding the foregoing, Tenant promptly shall
\ncomply with any such Requirements and compliance shall not be deferred if at
\nany time the Parcels, or any part thereof, or any interest of Landlord or a
\nSecured Lender, shall be in danger of being forfeited or lost or becoming
\nunavailable to Landlord or any Secured Lender or diminished in value, or if
\nLandlord or a Secured Lender shall be in danger of being subject to criminal
\nor civil liability, penalty or other sanction by reason of noncompliance
\ntherewith. Landlord shall cooperate with Tenant in any such contest to the
\nextent Tenant may reasonably request, provided that Landlord shall not
\nthereby incur or be subject to any costs, expenses or liabilities (unless
\nLandlord or another Person claiming by, through or under Landlord and for
\nwhose acts Landlord is responsible hereunder, is responsible for the
\nnoncompliance); and Tenant hereby agrees to reimburse, defend, indemnify and
\nhold harmless Landlord for all such costs, expenses, claims and liabilities
\nincluding, without limitation, reasonable attorneys’ fees and expenses.
\nTenant shall defend, indemnify and hold Landlord harmless from and against
\nall and any costs, expenses, losses, damages or liabilities that Landlord may
\nsustain by reason of Tenant’s failure or delay in complying with any
\nRequirements for which Tenant is responsible and which is not caused by the
\nwrongful act of Landlord or another Person claiming by, through or under
\nLandlord and for whose acts Landlord is responsible hereunder, including,
\nwithout limitation, any proceeding brought by Tenant. In the event that
\nTenant, as a result of such contest, receives any reimbursement or other
\npayment on account of the cost of compliance with the contested Requirement,
\nwhich compliance was performed by Landlord or any Secured Lender, then Tenant
\nshall receive and hold the same in trust for Landlord or such Secured Lender
\n(as the case may be) and, within ten (10) days after receiving the same,
\nTenant shall deliver the amount of such reimbursement or other payment to
\nLandlord or such Secured Lender, as the case may be, less, however, the
\namount of the reasonable costs and expenses incurred by Tenant in such
\nproceeding.<\/p>\n
SECTION 14.3. Prior to the Commencement Date, Landlord, at its sole
\ncost and expense, and from and after the Commencement Date, Tenant, at its
\nsole cost and expense, shall perform and comply with and cause the Parcels to
\ncomply with all of, and shall not do or permit anything which would violate
\nany of, the terms, covenants and conditions (to the extent susceptible of
\nperformance and compliance by Tenant) which are applicable to the Parcels and
\npertain to any period of time during the Term or any Renewal Terms, under (a)
\nthe CC&Rs and all other laws, ordinances, covenants, orders, documents,
\nrestrictions, agreements and other matters listed on EXHIBIT B attached
\nhereto and (b) any other covenants, documents, restrictions, agreements and
\nother matters affecting the Parcels (or any of them) which are entered into
\nor become effective after the date of this Lease to which Landlord (in the
\ncase of Landlord’s obligation under this Section) or Tenant (in the case of
\nTenant’s obligation under this Section) is a party or to which it consents.<\/p>\n
ARTICLE 15
\n LEASEHOLD IMPROVEMENT AGREEMENT<\/p>\n
Substantially simultaneously with the execution of this Lease,
\nLandlord and Tenant will execute the Leasehold Improvement Agreement, in a
\nform substantially identical to EXHIBIT C attached hereto but with such
\nmodifications, revisions and changes to such form (if any) as they may
\nmutually agree upon. However, if by the 30th day following the date of this
\nLease Landlord and <\/p>\n
44<\/p>\n
Tenant shall have failed, for any reason whatsoever, to execute a separate
\nLeasehold Improvement Agreement, they shall be contractually bound by each
\nand every one of the terms, conditions and provisions of EXHIBIT C attached
\nhereto as though they had executed such EXHIBIT C independently of their
\nexecution of this Lease.<\/p>\n
ARTICLE 16
\n DISCHARGE OF LIENS; BONDS<\/p>\n
SECTION 16.1. Tenant shall not create or cause to be created any
\nlien, encumbrance, security interest or charge upon any property or assets
\n(including, without limitation, any Rental payable hereunder) of Landlord, or
\nupon the estate, rights or interest of Landlord in the Parcels or the
\nPremises or any part thereof or in or concerning this Lease.<\/p>\n
SECTION 16.2. Subject to Tenant’s rights to contest which are
\nexpressly set out herein, if at any time any mechanic’s, laborer’s or
\nmaterialman’s lien created or caused to be created by Tenant or arising as a
\nresult of any act or omission of, or relating to any contract of Tenant or
\nany Person claiming or acting by, through or under Tenant shall be filed
\nagainst Landlord’s interest in the Parcels or the Premises or any part
\nthereof, or if any public improvement lien created or caused to be created by
\nTenant shall be filed against any property or assets of Landlord, then
\nTenant, within twenty (20) days after actual notice of the filing thereof, or
\nsuch shorter period as may be required by a Secured Lender, shall cause the
\nsame to be discharged of record by payment, deposit, bond, order of a court
\nof competent jurisdiction or otherwise. If Tenant shall fail to cause such
\nlien to be discharged of record within the period aforesaid, then, in
\naddition to any other right or remedy, Landlord may, but shall not be
\nobligated to, cause the same of record to be discharged as aforesaid in any
\nmanner permitted by law. Any amount so paid by Landlord, including all
\nreasonable costs and expenses (including, without limitation, reasonable
\nattorneys’ fees and disbursements) incurred by Landlord in connection
\ntherewith, together with interest thereon at the Late Charge Rate from the
\nrespective dates of Landlord’s making of the payment or incurring of the
\ncosts and expenses until paid in full, shall constitute additional Rental
\npayable by Tenant under this Lease and shall be paid by Tenant to Landlord on
\ndemand. Notwithstanding the foregoing provisions of this SECTION 16.2, Tenant
\nshall not be required to discharge of record any such lien (i) which was not
\ncreated or caused to be created by Tenant (or any Person acting by, through,
\nfor or under Tenant) or did not arise as a result of any act or omission of,
\nor relate to any contract of, Tenant (or any Person acting by, through, for
\nor under Tenant), or (ii) during such time as Tenant is in good faith
\ncontesting the same (but only as long as neither the Landlord’s interest in
\nthe Premises nor any part thereof, nor any part of the rents, issues and
\nprofits thereof, would, by reason of such postponement or deferment, be, in
\nthe reasonable judgment of Landlord, in danger of being forfeited, lost or
\ndiminished in value).<\/p>\n
SECTION 16.3. Except for Restorations or Capital Improvements
\nperformed or installed by Tenant as expressly authorized by the provisions of
\nthis Lease, nothing in this Lease contained shall be deemed or construed in
\nany way as constituting the consent or request of Landlord, express or
\nimplied, by inference or otherwise, to any contractor, subcontractor, laborer
\nor materialman for the performance of any labor or services or the furnishing
\nof any materials for any improvement, <\/p>\n
45<\/p>\n
alteration or repair of any of the Parcels or any part thereof, nor as giving
\nTenant (or any Person acting by, through, for or under Tenant) any right,
\npower or authority to contract for or permit the rendering of any labor or
\nservices or the furnishing of materials that could give rise to the filing of
\nany lien against any of the Parcels or any part thereof or any property or
\nassets (including, without limitation, any Rental payable hereunder) of
\nLandlord. Notice is hereby given that Landlord shall not be liable for any
\nwork or services performed or to be performed at or for the benefit of the
\nParcels or for any materials furnished or to be furnished at or for the
\nbenefit of the Parcels for any of the foregoing, and that no mechanic’s or
\nother lien for such work or materials shall attach to or affect the estate or
\ninterest of Landlord in and to the Parcels or any part thereof or any
\nproperty or assets (including, without limitation, any Rental payable
\nhereunder) of Landlord.<\/p>\n
ARTICLE 17
\n REPRESENTATIONS<\/p>\n
SECTION 17.1. Landlord represents and warrants as follows (all of
\nthe following representations and warranties are made as of the Commencement
\nDate unless expressly stated below to be made as of a different date):<\/p>\n
(a) To the best of Landlord’s knowledge, the Parcels comply
\nwith all applicable laws, ordinances, rules and regulations of Governmental
\nAuthorities, including but not limited to Environmental Laws and the
\nAmericans with Disabilities Act. Landlord will provide at Landlord’s expense
\nall permits, authorizations and approvals required for the construction of
\nthe Initial Building and will promptly comply with and discharge of record
\nany violations of any and all present Requirements.<\/p>\n
(b) Except for the rights of Secured Lenders under
\ncollateral security documents securing Secured Loans and except for any
\nrights which are junior and subordinate to, and are not inconsistent with,
\nany of the rights or options granted to Tenant by this Lease, the Parcels are
\nnot subject to any outstanding agreement for sale, option, lease, or other
\nrights of any Person other than Tenant to acquire an interest therein.
\nLandlord has not received any notice of violation of any CC&R’s, Restrictions
\nor Requirements which has not been cured, dismissed or withdrawn, and
\nLandlord covenants that it will immediately notify Tenant in writing upon
\nLandlord’s receipt of notice of any such violation.<\/p>\n
(c) To the best of Landlord’s actual knowledge, except as
\ndisclosed in writing to Tenant, all improvements and systems, whether
\nmechanical or structural, on or within the Premises (including, but not
\nlimited to, Equipment installed by Landlord, roofs, exterior walls, floors,
\nHVAC, electrical, plumbing and roads and parking lots) have been constructed
\nin accordance with the Plans (as defined herein) and are in good working
\ncondition. (The Warranty set out in the preceding sentence is in addition to,
\nand not in limitation or restriction of, Landlord’s Backup Warranty.) All
\nVendors’ Warranties made by third party contractors or vendors relating to
\nthe Initial Building that are identified on EXHIBIT H attached hereto (under
\nthe column headed “Warranty”) are assignable to Tenant without the consent of
\nany third party (or such consent has been or will be obtained) and <\/p>\n
46<\/p>\n
effective as of the Commencement Date will be assigned by Landlord to Tenant.
\nLandlord agrees to assist Tenant in purchasing (at Tenant’s sole cost) the
\nextended warranties offered by equipment manufacturers or suppliers as listed
\non EXHIBIT H, if requested in writing to do so by Tenant.<\/p>\n
(d) Landlord is authorized to do business in the State of
\nFlorida and to own the Parcels and the Premises, and has full power and
\nauthority to enter into and perform this Lease in accordance with its terms.
\nThe persons executing this Lease on behalf of the Landlord have been duly
\nauthorized to do so. This Lease is a legal, valid and binding obligation of
\nLandlord and is enforceable against Landlord in accordance with its terms.<\/p>\n
(e) Prior to the Commencement Date, Landlord will not
\npermit ad valorem taxes on the Parcels to become delinquent.<\/p>\n
(f) Except in connection with any Secured Loan (including,
\nwithout limitation, any loan to finance the construction by Landlord of the
\nInitial Building or any improvements in connection with Tenant’s exercise of
\nany Expansion Option hereunder, and any loan which refinances any such loan),
\nand except for any matter identified on EXHIBIT B, Landlord agrees not to
\nconvey or dedicate any portion of, or execute, grant or convey any lien,
\neasement, license or other encumbrance on, the Premises or (so long as the
\nExpansion Option applicable to such Parcel has not lapsed or terminated and
\nis still in effect) Parcel B or Parcel C, without the prior written consent
\nof Tenant, which consent Tenant agrees shall not unreasonably be withheld or
\ndelayed.<\/p>\n
(g) Landlord holds (or before the Commencement Date will
\nacquire) fee simple title to the Premises, and Landlord has (or will by that
\ndate have) the right to lease the Premises. So long as Tenant is not in
\ndefault hereunder, Tenant shall have the peaceful and quiet use and
\npossession of the Premises and any easements appurtenant thereto which have
\nexpressly been granted to Tenant hereunder, without hindrance on the part of
\nLandlord, and Landlord shall warrant and defend Tenant such peaceful and
\nquiet use and possession against the claims of all persons acting or claiming
\nby, through or under Landlord, subject to the matters set forth on EXHIBIT B.<\/p>\n
SECTION 17.2. Landlord represents that as of the date of execution
\nof this Lease there is, and as of the Commencement Date there will be, no
\npending litigation adversely affecting the Premises or the Parcels.<\/p>\n
SECTION 17.3. Tenant acknowledges and agrees as follows: (i)
\nLandlord has made no representation regarding subsurface conditions on the
\nPremises, and Landlord has delivered to Tenant the Report of Geotechnical
\nExploration dated June 17, 1994 by Law Engineering and Environmental Services
\nas Law Project No. 442-07133-01, and Tenant is relying on said report but not
\non any representation or statement of Landlord; (ii) except as expressly set
\nout herein, no representation, statement, or warranty of any kind, express or
\nimplied, has been made by or on behalf of Landlord in respect of the Parcels,
\nthe status of title to the Parcels, the zoning or other laws, regulations,
\nordinances, rules and orders applicable thereto, Taxes, Impositions, or the
\nuse that may be made of the Premises; except as expressly set out herein, no
\nrepresentation, statement or warranty <\/p>\n
47<\/p>\n
of any kind, express or implied, has been made by or on behalf of Landlord
\nthat would entitle or permit Tenant to have any abatement, reduction,
\nset-off, counterclaim, defense or deduction with respect to any Rental or
\nother sum payable hereunder, and Tenant has relied on no such representation,
\nstatement or warranty, and in no event whatsoever shall Landlord be liable by
\nreason of any claim of false, inaccurate or misleading representation or
\nmisrepresentation or breach of warranty with respect thereto.<\/p>\n
SECTION 17.4. Tenant represents and warrants that Tenant is, and at
\nall times from the date hereof through the end of the Term will be,
\nauthorized to do business in the State of Florida and to lease, use and
\noperate the Premises, and Tenant has full power and authority to enter into
\nand perform its obligations under this Lease in accordance with its terms.
\nThe persons executing this Lease on behalf of the Tenant have been duly
\nauthorized to do so. This Lease is a legal, valid and binding obligation of
\nTenant enforceable against Tenant in accordance with its terms.<\/p>\n
ARTICLE 18
\n LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC.<\/p>\n
Except to the extent (if any) expressly provided herein, neither
\nLandlord nor any Secured Lender, respectively, shall in any event whatsoever,
\nunless caused by its own negligence or wrongful act or by the acts of any
\nPerson claiming by, through or under it or (in the case of Landlord) by
\nLandlord’s failure to perform its obligations herein, be liable for any
\ninjury, damage or loss to Tenant or to any Person claiming by, through or
\nunder Tenant, happening on, in or about the Premises or the Parcels or their
\nappurtenances (including, without limitation, street and sidewalk areas) nor
\nfor any injury or damage to the Premises or the Parcels (except that the
\nforegoing provision will not apply to Parcels B, C and D, respectively, from
\nand after such time, if any, as Tenant is relieved, by operation of the
\nprovisions of Section 3.3 hereof, from all obligation, liability and
\nresponsibility hereunder to pay any Impositions for or relating to Parcels B,
\nC and D, respective ly) or to any property belonging to Tenant or any Person
\nclaiming by, through or under Tenant, which may be caused by or result from
\nany of the following occurring on or after the Commencement Date: (a) any
\nfire or other casualty, (b) any action of wind, water, lightning or any other
\nof the elements, (c) any use, misuse or abuse of any Building or any portion
\nthereof, or other acts or negligence of Tenant, any Subtenant, licensee,
\ninvitee or contractor of Tenant or any Subtenant, happening on, in or about
\nthe Premises or the Parcels or their appurtenances (including, without
\nlimitation, street and sidewalk areas), (d) the condition of the Premises or
\nthe Parcels during the Term or any defect in the Land, any Building, the
\nEquipment or any other equipment, machinery, wiring, apparatus or appliances
\nwhatsoever now or hereafter situate in, at, upon or about the Premises or the
\nParcels, or any leakage, bursting or breaking up of the same, (e) any failure
\nor defect of water, heat, gas, chilled water, steam, electric light or power
\nsupply, or of any apparatus, machinery or appliance in connection therewith,
\n(f) any gasoline, oil, steam, gas, electricity, chemicals, water, rain, snow
\nor mud which may leak, run or flow from the river, roadways, streets,
\nsubsurface areas and facilities, sewers, mains, pipes, conduits, Equipment,
\nor any other facilities, equipment, machinery, wiring, apparatus or
\nappliances whatsoever, now or hereafter situate in, at, upon, about or in the
\nvicinity of the Premises or Parcels or (g) any other cause whatsoever.<\/p>\n
48<\/p>\n
ARTICLE 19
\n INDEMNIFICATION OF LANDLORD<\/p>\n
SECTION 19.1. Tenant hereby agrees to defend, indemnify and save
\nLandlord harmless from and against any and all liabilities, suits,
\nobligations, fines, damages, penalties, claims, costs, charges and expenses
\nof any and every kind whatsoever (including, without limitation, reasonable
\nengineers’, architects’ and attorneys’ fees and disbursements) which may be
\nimposed upon or incurred by or asserted against Landlord by reason of any of
\nthe following occurring during the Term or any Renewal Term (if exercised),
\nexcept to the extent (if any) either caused by the negligent act of Landlord
\nor any Person acting by, through or under Landlord or covered by insurance
\nunder which the insurer has acknowledged its liability to Landlord (Landlord
\nshall have no obligation to carry or maintain any such insurance or to waive
\nor release any rights of subrogation against Tenant in connection with any
\nsuch insurance which it may decide to carry):<\/p>\n
(a) the negligence or wrongful act or omission of Tenant or
\nany Person acting, claiming or holding by, through or under Tenant;<\/p>\n
(b) any work or thing done in, on or about the Parcels or
\nany part thereof by a Person other than Landlord or a Person acting by,
\nthrough or under Landlord;<\/p>\n
(c) any use, non-use, possession, occupation, alteration,
\nrepair, condition, operation, maintenance or management of the Parcels or any
\npart thereof or of any sidewalk or curb adjacent thereto after the
\nCommencement Date;<\/p>\n
(d) any accident, injury (including death at any time
\nresulting therefrom) or damage to any Person or property occurring in, on or
\nabout the Parcels or any part thereof or in, on or about any sidewalk or curb
\nadjacent thereto;<\/p>\n
(e) any failure on the part of Tenant timely to pay Rental
\nor to perform or comply with any of the covenants, agreements, warranties,
\nterms or conditions contained in this Lease on Tenant’s part to be performed
\nor complied with;<\/p>\n
(f) any lien or claim which may be filed, asserted or
\nalleged to have arisen against or on Landlord’s interest in the Premises or
\nany of the Parcels created or caused to be created by Tenant or any Person
\nacting, claiming or holding by, through or under Tenant, or any lien or claim
\nof lien which may be filed, asserted or alleged to have arisen out of this
\nLease and created or caused to be created by Tenant or any Person acting,
\nclaiming or holding by, through or under Tenant against any property or
\nassets (including, without limitation, any Rental) of Landlord under the laws
\nof the State of Florida or of any other Governmental Authority or any
\nliability created or caused to be created by Tenant or any Person acting,
\nclaiming or holding by, through or under Tenant which may be asserted against
\nLandlord with respect thereto;<\/p>\n
49<\/p>\n
(g) any failure on the part of Tenant or any Person acting,
\nclaiming or holding by, through or under Tenant to keep, observe or perform
\nany of the terms, covenants, agreements, provisions, conditions or
\nlimitations contained in any Construction Agreements, Subleases or other
\ncontracts and agreements affecting the Parcels, on Tenant’s part to be kept,
\nobserved or performed;<\/p>\n
(h) any contest permitted pursuant to the provisions
\nhereof; or<\/p>\n
(i) any breach by Tenant or any Person acting, holding or
\nclaiming by, through or under Tenant of any provision applicable to the
\nParcels under (1) any of the CC&R’s, (2) any agreement affecting any of the
\nParcels which is entered into or becomes effective after the Commencement
\nDate to which Tenant is a party or to which Tenant consents or (3) any
\nagreement, document, covenant, guideline or other matter listed on EXHIBIT B
\nattached hereto (except agreements between Landlord and a Secured Lender).<\/p>\n
SECTION 19.2. The obligations of Tenant under this ARTICLE 19 shall
\nnot be affected in any way by the absence in any case of covering insurance
\nor by the failure or refusal of any insurance carrier to perform any
\nobligation on its part under insurance policies.<\/p>\n
SECTION 19.3. If any claim, action or proceeding is made or brought
\nagainst Landlord against which Landlord is indemnified pursuant to SECTION
\n19.1 or any other provision of this Lease, then, upon demand by Landlord,
\nTenant, at its sole cost and expense, shall diligently resist or defend such
\nclaim, action or proceeding in Landlord’s name. The foregoing
\nnotwithstanding, Landlord may engage its own attorneys to defend it or to
\nassist in its defense.<\/p>\n
SECTION 19.4. The provisions of this ARTICLE 19 shall survive the
\nExpiration Date with respect to any liability, suit, obligation, fine,
\ndamage, penalty, claim, cost, charge or expense arising out of or in
\nconnection with any action or failure to take action or any other matter
\noccurring during the Term or any Renewal Term of this Lease.<\/p>\n
SECTION 19.5. When a claim is caused by the joint negligence or
\nwillful conduct of Tenant and Landlord or Tenant and a Person unrelated to
\nTenant (except Tenant’s agents, employees, officers, contractors, licensees,
\nor invitees), Tenant’s duty to defend, indemnify and save Landlord harmless
\nshall be in proportion to Tenant’s allocable share of the joint negligence or
\nwillful misconduct.<\/p>\n
ARTICLE 20
\n INDEMNIFICATION OF TENANT<\/p>\n
SECTION 20.1 Landlord hereby agrees to defend, indemnify and save
\nTenant harmless from and against any and all liabilities, suits, obligations,
\nfines, damages, penalties, claims, costs, charges and expenses of any and
\nevery kind whatsoever (including, without limitation, reasonable engineers’,
\narchitects’ and attorneys’ fees and disbursements) which may be imposed upon
\nor incurred by or asserted against Tenant by reason of any of the following
\ncaused by the negligence or wrongful act <\/p>\n
50<\/p>\n
or wrongful omission (but, nothing in this SECTION 20.1 shall be deemed to
\ncreate or impose on Landlord any obligation or liability of any kind which is
\nin the nature of, or has the same or similar effect as, a warranty of,
\nconcerning, relating to or on account of any construction by Landlord or its
\nagents or contractors of any Building, structure or other improvements of any
\nkind, and further, as to omissions after the Commencement Date, Landlord’s
\nundertakings hereunder shall apply only if Landlord was obligated by the
\nexpress provisions of this Lease to act otherwise) of Landlord or its
\nofficers, employees, agents, contractors, licensees or invitees (except to
\nthe extent, if any, either caused by the negligence of Tenant or any Person
\nacting by, through or under Tenant or covered by insurance under which the
\ninsurer has acknowledged its liability to Tenant) or required by the
\nprovisions of this Lease to be covered by insurance):<\/p>\n
(a) any work or thing done in, on or about the Parcels or
\nany part thereof by Landlord (or any Person acting for Landlord);<\/p>\n
(b) any use, non-use, possession, occupation, alteration,
\nrepair, condition, operation, maintenance or management of the Parcels or any
\npart thereof or of any sidewalk or curb adjacent thereto by Landlord before
\nthe Commencement Date, or any actual use or act of Landlord occurring after
\nthe Commencement Date;<\/p>\n
(c) any accident, injury (including death at any time
\nresulting therefrom) or damage to any Person or property occurring in, on or
\nabout the Parcels or any part thereof or in, on or about any sidewalk or curb
\nadjacent thereto before the Commencement Date;<\/p>\n
(d) any failure on the part of Landlord to perform or
\ncomply with any of the covenants, agreements, warranties, terms or conditions
\ncontained in this Lease on Landlord’s part to be performed or complied with;
\nor<\/p>\n
(e) any failure or breach on the part of Landlord to keep,
\nobserve or perform any of the terms, covenants, agreements provisions,
\nconditions, or limitations contained in any other contract or agreement
\naffecting the Premises, on Landlord’s part to be kept, observed or performed
\nand not to be performed by Tenant pursuant to the provisions of this Lease.<\/p>\n
SECTION 20.2. The obligations of Landlord under this ARTICLE 20
\nshall not be affected in any way by the absence in any case of covering
\ninsurance or by the failure or refusal of any insurance carrier to perform
\nany obligation on its part under insurance policies.<\/p>\n
SECTION 20.3. If any claim, action or proceeding is made or brought
\nagainst Tenant against which Tenant is indemnified pursuant to SECTION 20.1
\nor any other provision of this Lease, then, upon demand by Tenant, Landlord,
\nat its sole cost and expense, shall diligently resist or defend such claim,
\naction or proceeding in Tenant’s name. The foregoing notwithstanding, Tenant
\nmay engage its own attorneys to defend it or to assist in its defense.<\/p>\n
51<\/p>\n
SECTION 20.4. The provisions of this ARTICLE 20 shall survive the
\nExpiration Date with respect to any liability, suit, obligation, fine,
\ndamage, penalty, claim, cost, charge or expense arising out of or in
\nconnection with any action or failure to take action or any other matter
\noccurring during the Term or any Renewal Term of this Lease.<\/p>\n
SECTION 20.5. When a claim is caused by the joint negligence or
\nwillful misconduct of Landlord and Tenant or Landlord and a Person unrelated
\nto Landlord (except Landlord’s agents, employees, officers, contractors,
\nlicensees, or invitees), Landlord’s duty to defend, indemnify and save Tenant
\nharmless shall be in proportion to Landlord’s allocable share of the joint
\nnegligence or willful misconduct.<\/p>\n
ARTICLE 21
\n RIGHT OF INSPECTION<\/p>\n
SECTION 21.1. After the Commencement Date, Tenant shall permit
\nLandlord and the Secured Lenders and their respective agents, representatives
\nand contractors to enter the Premises at all reasonable times, on reasonable
\nnotice (except in the case of an emergency, in which event no notice will be
\nrequired), for the purposes of (a) inspecting the Premises, (b) determining
\nwhether or not Tenant is in compliance with its obligations hereunder, (c)
\nmaking any repairs or Restoration which Landlord is permitted or required to
\nperform pursuant to the terms of this Lease, (d) in the case of an emergency
\n(i.e., a condition presenting imminent danger to the health or safety of
\npersons or to property), or following an Event of Default, making any
\nnecessary repairs or alterations to the Premises or performing any work
\ntherein, whether necessitated by a Requirement or otherwise, provided that in
\nthe case of an emergency Landlord or the Secured Lender shall make a
\nreasonable attempt to communicate with Tenant to alert Tenant to the
\nnecessary repair, and (e) performing any other obligations of Landlord which
\nreasonably require access to the Premises. Landlord’s and each Secured
\nLender’s respective inspection rights may not be exercised before an Event of
\nDefault occurs unless Landlord or such Secured Lender first executes a
\nconfidentiality agreement in the form of EXHIBIT I attached hereto (the
\n“CONFIDENTIALITY AGREEMENT”).<\/p>\n
SECTION 21.2. Landlord or a Secured Lender, as the case may be,
\nduring the progress of any Restoration or any Repair, alteration or work
\nreferred to in SECTION 21.1, may keep and store at the Premises in or at
\nplaces to be reasonably designated by Tenant all necessary or useful
\nmaterials, tools, supplies and equipment. Landlord or a Secured Lender, as
\nthe case may be, shall not be liable for inconvenience, annoyance,
\ndisturbance, or loss of business of Tenant or any Subtenant by reason of
\nmaking such repairs, Restoration or the performance of any such work, or on
\naccount of bringing materials, tools, supplies and equipment into the
\nPremises during the course thereof, and the obligations of Tenant under this
\nLease shall not be affected thereby. To the extent that Landlord or a Secured
\nLender undertakes such work or repairs and such work or repairs shall require
\ninterruption of any services to or access of Tenant or a Subtenant or the
\nentry into any space covered by this Lease or a Sublease, such work or
\nrepairs shall be commenced and completed with reasonable diligence, subject
\nto Unavoidable Delays, and in such a manner as not to unreasonably interfere
\nwith the conduct of business in such space and if requested by Tenant such
\nwork or repairs will be <\/p>\n
52<\/p>\n
performed outside of normal business hours and on weekends, at Tenant’s
\nexpense, unless the work or repairs are required due to a breach by Landlord
\nunder this Lease.<\/p>\n
SECTION 21.3. Landlord and Persons authorized by Landlord shall have
\nthe right to enter and pass through the Premises at any reasonable time upon
\nreasonable notice to Tenant to show the Premises to prospective purchasers,
\ntenants and Secured Lenders; provided, however, that Landlord and any such
\nPersons agree to execute the Confidentiality Agreement.<\/p>\n
ARTICLE 22
\n LANDLORD’S RIGHT TO PERFORM TENANT’S COVENANTS<\/p>\n
SECTION 22.1.<\/p>\n
(a) If an Event of Default occurs under this Lease and all
\napplicable cure periods have expired, then Landlord, without waiving or
\nreleasing Tenant from any default or from any obligation of Tenant contained
\nin this Lease, may (but shall be under no obligation to) perform such
\nobligations on Tenant’s behalf, at Tenant’s cost. In addition, Landlord may
\nso perform the obligation in question upon the occurrence of a Default
\nwithout waiting until such Default has become an Event of Default if the
\nfailure to perform such obligation may result in a loss, forfeiture or
\ndiminution in value of the Premises or any part thereof or any part of the
\nrents, issues and profits thereof. In addition to the foregoing, if Tenant
\nshall have failed to deliver to Landlord a certificate or other evidence
\nreasonably satisfactory to Landlord of the existence of any new or renewal
\ninsurance policy required under SECTION 7.1 of this Lease prior to the date
\nthat is seven (7) Business Days prior to the expiration of the policy in
\nquestion or if for any other reason the insurance described in SECTION 7.1(a)
\nis no longer in full force and effect, then upon twenty-four (24) hours’
\nnotice from Landlord or any time thereafter, Landlord, without waiving or
\nreleasing Tenant from any obligation of Tenant contained in this Lease, may
\n(but shall be under no obligation to) obtain or cause to be obtained, at
\nTenant’s sole cost and expense, some or all of the insurance (covering a
\nperiod of one year or less) for which such certificate or other evidence has
\nnot been delivered to Landlord as aforesaid. Landlord may exercise the
\nforegoing right without giving Tenant a notice of Default and Landlord shall
\nhave the right to enforce collection of its costs and expenses incurred in
\nobtaining such insurance without declaring an Event of Default by Tenant.<\/p>\n
(b) Without limiting Landlord’s rights under SECTION
\n22.1(a) or elsewhere in this Lease contained, if Landlord shall be given any
\nnotice of default under any Secured Loan and Tenant is then in Default under
\nthis Lease with respect to an obligation the non-performance of which is the
\nbasis (in whole or in part) for such notice of default, then, whether or not
\nsuch Default has become an Event of Default, Landlord, without waiving or
\nreleasing Tenant from any default or any obligation of Tenant contained in
\nthis Lease, may (but shall be under no obligation to) perform such obligation
\non Tenant’s behalf, at Tenant’s cost; provided, however, that Landlord shall
\nimmediately forward to Tenant a copy of any such notice of default received
\nfrom such Secured Lender.<\/p>\n
53<\/p>\n
SECTION 22.2. All reasonable sums paid by Landlord and all
\nreasonable costs and expenses (including, without limitation, reasonable
\nattorneys’ fees and disbursements) incurred by Landlord in connection with
\nits performance under SECTION 22.1 of any of Tenant’s obligations, together
\nwith interest thereon at the Late Charge Rate from the respective dates that
\nLandlord makes each such payment until the date of actual repayment to
\nLandlord, shall be paid by Tenant to Landlord on demand as additional rent.
\nAny payment or performance by Landlord pursuant to the foregoing provisions
\nof this ARTICLE 22 shall not be a waiver or release of any breach or default
\nof Tenant with respect thereto or of any right of Landlord to terminate this
\nLease, institute summary proceedings, exercise any other right or remedy, or
\ntake such other action as may be permissible hereunder if an Event of Default
\nby Tenant shall have occurred. Landlord shall not be limited in the proof of
\nany damages which Landlord may claim against Tenant arising out of or by
\nreason of Tenant’s failure to provide and keep insurance in force as
\naforesaid to the amount of the insurance premium or premiums not paid, but
\nLandlord also shall be entitled to recover, as damages for such breach, the
\nuninsured amount of any loss or damage and the costs and expenses of suit,
\nincluding, without limitation, reasonable attorneys’ fees and disbursements,
\nsuffered or incurred by reason of damage to or destruction of the Parcels
\nwhich damage or destruction was required to be insured against hereunder.<\/p>\n
ARTICLE 23
\n NO TERMINATION OR ABATEMENT OF RENTAL<\/p>\n
SECTION 23.1. This Lease is a completely net lease to Landlord, and
\nit shall not terminate except as expressly provided in SECTION 23.3 or
\nARTICLES 8, 9 and 25; nor shall Tenant be entitled to any abatement or
\nreduction, set-off, counterclaim, defense or deduction with respect to any
\nRental or other sum payable hereunder except as expressly provided in
\nARTICLES 9 and 48 and EXHIBIT C; nor shall the obligations of Tenant
\nhereunder be affected (except in accordance with an express provision of this
\nLease) by reason of (a) any prohibition, limitation, restriction or
\nprevention of Tenant’s use, occupancy or enjoyment of the Premises, or any
\ninterference with such use, occupancy or enjoyment by any Person, other than
\nLandlord, a Secured Lender, or their respective agents or successors, (b) any
\ndefault by or claim against Landlord hereunder or under any other agreement,
\n(c) the impossibility or illegality of performance by Landlord, Tenant or
\nboth, (d) any action of any Governmental Authority, or (e) any other cause
\nwhatsoever, whether similar or dissimilar to the foregoing. The covenants,
\nagreements and obligations of Tenant hereunder are and shall in all events be
\nconstrued as covenants, agreements and obligations which are separate and
\nindependent from those of Landlord, and they shall continue unaffected,
\nregardless of any breach of Landlord’s covenants and agreements hereunder,
\nexcept to the extent (if any) such obligations of Tenant shall have been
\nmodified or terminated in writing pursuant to an express provision of this
\nLease.<\/p>\n
SECTION 23.2. Without limitation of the provisions of SECTION 23.1,
\nexcept as expressly provided otherwise in this Lease, Tenant shall remain
\nobligated under this Lease in accordance with its terms, shall remain in
\npossession of the Premises within the meaning of Title 11 U.S.C. Section 365
\n(as the same may be amended from time to time) and shall not take any action
\nto terminate, surren der, reject, disaffirm, rescind or avoid this Lease, or
\nabate or defer any Rental, or claim a constructive eviction, by reason of any
\nbankruptcy, insolvency, reorganization, liquidation, dissolution or other <\/p>\n
54<\/p>\n
proceeding of or affecting Landlord or any of its assigns or any action with
\nrespect to this Lease which may be taken by any trustee, receiver or
\nliquidator or by any court.<\/p>\n
SECTION 23.3. Notwithstanding any provision herein to the contrary,
\nif there is a complete and total failure of title to the Premises as a result
\nof a matter which is not listed on Exhibit B and the origin of which is not
\ncaused by or through Tenant or any Person claiming or acting by, through or
\nunder Tenant, and as a result thereof Tenant is completely dispossessed from
\nall or substantially all of the Premises, and such failure of title is
\ncovered by the respective mortgagees’ policies of title insurance held by the
\nSecured Lenders holding liens on the Premises such that those Secured Lenders
\nare entitled, on account of such failure of title, to receive full
\ncompensation under their respective title insurance policies for the full
\namount of the indebtedness outstanding under their respective Secured Loans
\n(or, if Secured Lenders are entitled to payment under their title insurance
\npolicies of less than the full amount of such indebtedness on account of such
\ntitle failure, but Tenant tenders to such Secured Lenders an amount in cash
\nequal to the full amount of the shortfall (the principal component of such
\nshortfall being subject to the limitation set out in SECTION 9.1(d)
\nhereinabove) less the amount (if any) which Landlord is entitled to receive
\nunder its owners policy of title insurance for and on account of such failure
\nof title, with the result that such Secured Lenders will be repaid from
\nTenant and their title insurance policies and Landlord’s title insurance
\npolicy together the full amount of their outstanding indebtedness), then
\nTenant may, by written notice given to Landlord and each of such Secured
\nLenders not later than 60 days after first learning of such failure of title
\nis finally determined, terminate this Lease and be relieved of its
\nobligations to pay Rental and other obligations hereunder that relate
\nexclusively to the period after the effective date of such termination,
\nexcept for those which specifically survive expiration or termination of the
\nLease.<\/p>\n
ARTICLE 24
\n PERMITTED USE; NO UNLAWFUL OCCUPANCY;<\/p>\n
OPERATION OF THE PREMISES<\/p>\n
SECTION 24.1. Tenant shall not use the Premises in a manner, or for
\na use or purpose, not permitted by the provisions of this Lease.<\/p>\n
SECTION 24.2. Tenant shall not use or occupy the Premises or any
\npart thereof, or permit or suffer the Premises or any part thereof to be used
\nor occupied, for any unlawful business, use or purpose, or in an unlawful
\nmanner or such manner as to constitute in law or in equity a nuisance of any
\nkind (public or private), or for any dangerous or noxious trade or business,
\nor for any purpose or in any way in violation of (a) any certificate of
\noccupancy for the Premises in effect from time to time during the Term or any
\nRenewal Term, (b) any Requirement, (c) the CC&R’s relating to the Premises,
\nor (d) the provisions of this Lease, or which may make void or voidable any
\ninsurance then in force on the Premises (or any portion thereof). Tenant
\nshall take, immediately upon the discovery of any unpermitted use, all
\nreasonable necessary steps, legal and equitable, to compel the discontinuance
\nof such unpermitted use and Tenant shall exercise all of its rights and
\nremedies against any Subtenants responsible for such use.<\/p>\n
55<\/p>\n
SECTION 24.3.<\/p>\n
(a) Tenant may use and occupy the Premises for the
\nprocessing, warehousing, and distribution of inventory, for administrative
\nand general offices, and (subject to the provisions of SECTION 24.2) for any
\nother lawful uses.<\/p>\n
(b) If any licenses, permits or authorizations of any
\nGovernmental Authorities, other than those required or necessary to obtain
\nFinal Inspection (which licenses, approvals and authorizations necessary to
\nobtain Final Inspection are the responsibility of Landlord, at Landlord’s
\nsole cost and expense), shall be required for the proper and lawful conduct
\nin the Premises or any part thereof of the business or activities of Tenant
\n(or any Person claiming by, through or under Tenant), then Tenant, at its
\nsole cost and expense, shall duly procure and thereafter maintain such
\nlicenses, permits and authorizations in effect, and shall submit the same to
\nLandlord for inspection. Tenant shall at all times comply with the terms and
\nconditions of each such license, permit and authorization.<\/p>\n
SECTION 24.4. Notwithstanding anything herein to the contrary,
\nnothing herein shall be construed as an obligation for Tenant to operate its
\nbusiness in the Premises. Tenant shall have the right to remove Tenant’s
\nProperty and cease operations on or within the Premises at Tenant’s sole
\ndiscretion; however, the right to cease to operate its business on or within
\nthe Premises shall not diminish or affect in any way any of Tenant’s
\nobligations hereunder (including, without limitation, Tenant’s obligations to
\npay all Rental and other amounts as they come due hereunder and to perform
\nall covenants and obligations hereunder).<\/p>\n
ARTICLE 25
\n EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,
\n REMEDIES, ETC.<\/p>\n
SECTION 25.1. The occurrence of any one or more of the following
\nevents shall be an “EVENT OF DEFAULT” hereunder:<\/p>\n
(a) if Tenant shall fail to pay any installment of any
\nFixed Rent or Impositions, or any part thereof, when the same shall become
\ndue and payable, and such failure shall continue for a period of five days;
\nprovided, that twice in any period of twelve consecutive months Tenant shall
\nhave ten days after written notice from Landlord to Tenant to cure such
\nDefault, except that the preceding provisions of this proviso (which provide
\nfor notice and ten days’ grace period under certain circumstances) shall not
\napply to any failure of Tenant to pay, before the same becomes past- due or
\nany penalty attaches or accrues on account of nonpayment or late payment, any
\nImposition which is a tax, assessment or other amount payable to a
\nGovernmental Authority, and provided further, that Tenant’s late payment of a
\nparticular installment of any Imposition which is a tax, assessment or other
\namount payable to a Governmental Authority will not be deemed to constitute
\nan Event of Default (although it will be deemed to constitute a Default) if
\nTenant paid such installment in full (together with any and all interest,
\npenalties and other amounts payable with <\/p>\n
56<\/p>\n
respect thereto) within five (5) days after Tenant first received a copy of
\nthe tax bill relating thereto or other written notice of the amount of and
\ndue date for such installment of Taxes;<\/p>\n
(b) if Tenant shall fail to make any payment of any Rental
\n(other than Fixed Rent or Impositions) required to be paid by Tenant
\nhereunder when the same shall become due and payable, and such failure shall
\ncontinue for a period of ten days after written notice from Landlord to
\nTenant to cure such Default;<\/p>\n
(c) if Tenant shall fail to deliver to Landlord a
\ncertificate or other evidence reasonably satisfactory to Landlord of the
\nexistence of any new or renewal insurance policy required under this Lease on
\nor prior to the date the same is required to be delivered to Landlord, and
\nsuch failure shall continue for seven days after notice from Landlord (but
\nonly two Business Days after notice if Landlord’s notice is given ten or
\nfewer days prior to the expiration of the policy in question);<\/p>\n
(d) if Tenant shall fail to observe or perform any of the
\nterms, conditions, covenants or agreements of this Lease which is not
\nspecifically the subject of any of the preceding CLAUSES (a)-(c), inclusive,
\nof this SECTION 25.1, and such failure continues for a period of thirty days
\nafter notice thereof by Landlord to Tenant specifying such failure (unless
\nsuch failure requires work to be performed, acts to be done, or conditions to
\nbe removed which cannot, either by their nature or by reason of Unavoidable
\nDelays, reasonably be performed, done or removed, as the case may be, within
\nsuch 30-day period, in which case no Event of Default shall be deemed to
\nexist as long as Tenant shall have commenced curing the same promptly after
\nthe first notice from Landlord and shall thereafter at all times prosecute
\nthe same to completion with reasonable diligence, subject only to Unavoidable
\nDelays);<\/p>\n
(e) if Tenant or Guarantor shall make an assignment for the
\nbenefit of creditors;<\/p>\n
(f) if Tenant or Guarantor voluntarily shall file a case or
\npetition under Title 11 of the United States Code or any other bankruptcy,
\ninsolvency, reorganization or similar law, or if any such case or petition is
\nfiled against Tenant or Guarantor and an order for relief is entered, or if
\nTenant or Guarantor shall file any petition or answer seeking, consenting to
\nor acquiescing in any reorganization, arrangement, composition, readjustment,
\nliquidation, dissolution or similar relief under present or any future
\nfederal bankruptcy code or any other present or future applicable federal,
\nstate or other statute or law, or shall admit in writing that it is bankrupt
\nor insolvent, or shall seek or consent to or acquiesce in or suffer the
\nappointment of any trustee, receiver, custodian, assignee, sequestrator,
\nliquidator or other similar official of Tenant or Guarantor or of all or any
\nsubstantial part of its properties or of the Premises or any interest therein
\nof Tenant or Guarantor, or if Tenant or Guarantor shall take any action in
\nfurtherance of any action described in SECTION 25.1(e), this SECTION 25.1(f),
\nor SECTION 25.1(g) hereof;<\/p>\n
(g) if within ninety days after the commencement of any
\nproceeding against Tenant or Guarantor seeking any reorganization,
\narrangement, composition, readjustment, liquidation, dissolution or similar
\nrelief under the present or any future federal bankruptcy code or <\/p>\n
57<\/p>\n
any other present or future applicable federal, state or other statute or
\nlaw, such proceeding shall not have been dismissed, discontinued or vacated
\nor if, within ninety days after the appointment, without the consent or
\nacquiescence of Tenant or Guarantor, of any trustee, receiver, custodian,
\nassignee, sequestrator, liquidator or other similar official of Tenant or
\nGuarantor or of all or any substantial part of its properties or of the
\nPremises or any interest therein of Tenant or Guarantor, such appointment
\nshall not have been vacated or stayed on appeal or otherwise, or if, within
\nninety days after the expiration of any such stay, such appointment shall not
\nhave been vacated;<\/p>\n
(h) if this Lease or all or any part of the estate or
\ninterest of Tenant hereunder or created hereby shall be assigned, subleased,
\ntransferred, mortgaged, encumbered or otherwise disposed of without
\ncompliance with the provisions of this Lease applicable thereto, and such
\ntransaction shall not be made to comply, or voided ab initio, within thirty
\ndays after notice thereof from Landlord to Tenant; or<\/p>\n
(i) if a levy under execution or attachment shall be made
\nagainst Tenant’s interest or estate in the Premises or any part thereof and
\nsuch execution or attachment shall not be vacated or removed by court order,
\nbonding or otherwise within a period of sixty days.<\/p>\n
SECTION 25.2. If an Event of Default shall occur, until such Event
\nof Default shall have been completely cured Landlord may, in its sole
\ndiscretion, exercise any or all rights and remedies available to Landlord
\nhereunder or under applicable law (including, without limitation, proceeding
\nby appropriate judicial proceedings, either at law or in equity, to mandate,
\nenjoin or otherwise enforce the performance or observance by Tenant of the
\napplicable provisions of this Lease, terminating this Lease and recovering
\ndamages for Tenant’s breach hereof [including but not limited to any prepayment
\npenalty incurred by Landlord under a Secured Loan as a result of the
\ntermination of this Lease, and brokerage commissions]), simultaneously or in
\nsuch order as Landlord, in its discretion, may determine.<\/p>\n
58<\/p>\n
SECTION 25.3.<\/p>\n
(a) If any Event of Default shall occur and Landlord, at
\nany time thereafter during the continuance of such Event of Default, at its
\noption, gives written notice to Tenant stating that this Lease and the Term
\nor any Renewal Terms shall expire and terminate on the date specified in such
\nnotice, which date shall be not less than ten days after the giving of such
\nnotice, then this Lease, the Term, any Renewal Terms, and all rights of
\nTenant under this Lease (including, without limitation, all rights relating
\nto any and all Options) shall expire and terminate on the date specified in
\nsuch notice as if such date were the date herein definitely fixed for the
\nexpiration of the Term or any Renewal Terms unless such Event of Default
\nshall be sooner cured. Upon any termination of this Lease pursuant to this
\nSECTION 25.3, Tenant immediately shall quit and surrender the Premises, but
\nTenant shall remain liable for damages as hereinafter provided. Anything
\ncontained herein to the contrary notwithstanding, if such termination shall
\nbe stayed or enjoined by order of any court having jurisdiction over any
\nproceeding described in either of SECTIONS 25.1(f) or 25.1(g) hereof, or by
\nfederal or state statute, then, following the expiration or vacation of any
\nsuch stay or injunc tion, or if the trustee appointed in any such proceeding,
\nTenant, or Tenant as debtor-in-possession shall fail to assume Tenant’s
\nobligations under this Lease within the period prescribed therefor by law or
\nwithin sixty days after entry of the order for relief or as may be allowed by
\nthe court, or if said trustee, Tenant or Tenant as debtor-in-possession shall
\nfail to provide adequate protection of Landlord’s right, title and interest
\nin and to the Premises or adequate assurance of the complete and continuous
\nfuture performance of Tenant’s obligations under this Lease as provided in
\nSECTION 25.16 hereof, Landlord shall have the right, at its election, to
\nterminate this Lease on five days’ notice to Tenant, Tenant as
\ndebtor-in-possession, or said trustee, and upon the expiration of said
\nfive-day period this Lease shall cease and expire as aforesaid and Tenant,
\nTenant as debtor-in-possession, and said trustee shall immediately quit and
\nsurrender the Premises as aforesaid.<\/p>\n
(b) If an Event of Default shall occur and all applicable
\ncure periods have expired, Landlord, without notice, may (unless such Event
\nof Default shall have been completely cured) dispossess Tenant by summary
\nproceedings or by any suitable action or proceeding at law, whether or not
\nthe Lease has terminated.<\/p>\n
SECTION 25.4. If this Lease shall be terminated as provided in
\nSECTION 25.3(a) or Tenant shall be dispossessed as provided in SECTION
\n25.3(b), then:<\/p>\n
(a) Landlord or Landlord’s agents or servants, may
\nimmediately or at any time thereafter re-enter the Premises and remove
\ntherefrom Tenant, its agents, employees, servants, licensees, and any
\nsubtenants and other persons holding or claiming by, through or under Tenant,
\nand all or any of its or their property, without being liable to indictment,
\nprosecution or damages therefor, and repossess and enjoy the Premises,
\ntogether with all additions, alterations and improvements thereto;<\/p>\n
(b) All of the right, title, estate and interest of Tenant
\nin and to (i) the Premises, all Buildings (including, without limitation, all
\nEquipment), all changes, additions and alterations <\/p>\n
59<\/p>\n
therein, and all renewals and replacements thereof, (ii) all rents, issues
\nand profits of the Premises, or any part thereof, whether then accrued or to
\naccrue, (iii) all insurance policies and all insurance monies paid or payable
\nthereunder, and (iv) subject to SECTION 25.17, the entire undisbursed balance
\nof any funds (including the interest, if any, accrued thereon) then held by
\nthe Landlord, shall automatically pass to, vest in and belong to Landlord,
\nwithout further action on the part of either party, free of any claim thereto
\nby Tenant (and Landlord will not thereby be deemed to have assumed, or
\notherwise be or become subject to, any of Tenant’s obligations or liabilities
\nthereunder or with respect thereto), subject, however, to the rights, if any,
\nof any Secured Lenders;<\/p>\n
(c) Tenant shall immediately pay to Landlord all Rental
\npayable by Tenant under this Lease to the date upon which this Lease and the
\nTerm or any exercised Renewal Term shall have expired and come to an end or
\nto the date of re-entry upon the Premises by Landlord, as the case may be;<\/p>\n
(d) Landlord may repair and alter the Premises in such
\nmanner as Landlord may deem necessary or advisable without relieving Tenant
\nof any liability under this Lease or otherwise affecting any such liability,
\nand let or relet the Premises or any parts thereof for the whole or any part
\nof the remainder of the Term or for a longer period, in Landlord’s name or as
\nagent of Tenant, and out of any rent and other sums collected or received as
\na result of such reletting Landlord shall: (i) first, pay to itself the
\nreasonable cost and expense of terminating this Lease, re-entering, retaking,
\nrepossessing, completing construction of and repairing and altering the
\nPremises, or any part thereof, and the reasonable cost and expense of
\nremoving all persons and property therefrom, including in such costs
\nreasonable brokerage commissions, legal expenses and attorneys’ fees and
\ndisbursements; (ii) second, pay to itself the reasonable cost and expense
\nsustained in securing any new tenants and other occupants, including in such
\ncosts reasonable brokerage commissions, legal expenses and attorneys’ fees
\nand disbursements and other expenses of preparing the Premises for reletting,
\nand, if Landlord shall maintain and operate the Premises, the cost and
\nexpense of operating and maintaining the Premises; and (iii) third, pay to
\nitself any balance remaining on account of the liability of Tenant to
\nLandlord. Landlord in no way shall be responsible or liable for any failure
\nto relet the Premises or any part thereof, or for any free rent or other
\nconcessions granted to any tenants in connection with any such reletting, or
\nfor any failure to collect any rent due on any such reletting, and no such
\nfailure to relet or to collect rent, or concessions granted, shall operate to
\nrelieve Tenant of any liability under this Lease or to otherwise affect any
\nsuch liability; and in no event shall Tenant be entitled to receive any
\nexcess of such annual rents over the sums payable by Tenant to Landlord
\nhereunder, provided, however, Landlord shall use reasonable efforts to
\nmitigate its damages for any Tenant default under the Lease;<\/p>\n
(e) Tenant shall be liable for and shall pay to Landlord,
\nas damages, any deficiency (“DEFICIENCY”) between (i) the Rental (including,
\nwithout limitation, Fixed Rent, Impositions, and all other amounts comprising
\nRental hereunder) reserved in this Lease for the period from the time of the
\ntermination hereof or dispossession of Tenant hereunder through the date on
\nwhich the Term (or any exercised Renewal Term) would have ended had no such
\ntermination or dispossession occurred and (ii) the net amount, if any, of
\nrents collected under any reletting effected <\/p>\n
60<\/p>\n
pursuant to the provisions of SECTION 25.4(d) for any part of such period
\n(which net amount shall be determined after deducting from the rents
\ncollected under any such reletting all of the payments to Landlord described
\nin SECTION 25.4(d) hereof); any such Deficiency shall be paid in installments
\nby Tenant on the respective days specified in this Lease for payment of
\ninstallments or other payments of Rental, and Landlord shall be entitled to
\nrecover from Tenant each Deficiency install ment as the same shall arise, and
\nno suit to collect the amount of the Deficiency for any installment period
\nshall prejudice Landlord’s right to collect the Deficiency for any subsequent
\ninstallment period by a similar proceeding; and<\/p>\n
(f) Whether or not Landlord shall have collected any
\nDeficiency installments as aforesaid, Landlord shall be entitled to recover
\nfrom Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
\nfurther Deficiencies, as and for liquidated and agreed final damages (it
\nbeing agreed that it would be impracticable or extremely difficult to fix the
\nactual damages), a sum equal to the amount by which the Rental reserved in
\nthis Lease for the period following termination or dispossession exceeds the
\nthen fair market rental value of the Premises for the same period, both
\ndiscounted to present worth at the rate per annum equal to the yield on then
\ncurrent Five-Year U.S. Treasury Index, less the aggregate amount of
\nDeficiencies theretofore collected by Landlord pursuant to the provisions of
\nSECTION 25.4(c) for the same period (if any). In no event is Landlord
\nentitled to accelerated nondiscounted rent.<\/p>\n
SECTION 25.5. No taking of possession of, or reletting of, the
\nPremises or any part thereof pursuant to SECTIONS 25.3(b) or 25.4, or any
\nother provision hereof, or as permitted by applicable law, shall relieve
\nTenant of its liabilities and obligations hereunder, all of which shall
\nsurvive such repossession or reletting except as otherwise specifically and
\nexpressly provided herein.<\/p>\n
SECTION 25.6. To the extent not prohibited by law, Tenant hereby
\nwaives and releases all rights now or hereafter conferred by statute or
\notherwise which would have the effect of limiting or modifying any of the
\nprovisions of, or limiting or restricting Landlord’s rights or remedies
\nunder, this ARTICLE 25. Tenant shall execute, acknowledge and deliver any
\ninstruments which Landlord may reasonably request, whether before or after
\nthe occurrence of an Event of Default, evidencing such waiver or release.<\/p>\n
SECTION 25.7. Landlord hereby waives any contractual, statutory or
\nother landlord’s lien on Tenant’s Property, furniture, fixtures, supplies,
\nequipment and inventory and any Capital Improvement owned now or hereafter by
\nTenant or its assignees, Subtenants or licensees at and with respect to the
\nPremises; provided, however, that the foregoing clause of this Section shall
\nnot be deemed to waive, release or diminish in any way any of the rights,
\nremedies or authorities granted to Landlord by the provisions of this Lease.
\nNo provision in the Guaranty made by Guarantor and delivered to Landlord
\nsubstantially simultaneously with the execution of this Lease shall be
\nconstrued as obligating Tenant to grant to Landlord any security interest in
\nany property of Tenant.<\/p>\n
SECTION 25.8. Suit or suits for the recovery of damages allowed
\nhereunder or any Deficiencies or other sums payable by Tenant to Landlord
\npursuant to this ARTICLE 25 may be brought <\/p>\n
61<\/p>\n
by Landlord from time to time at Landlord’s election, and nothing herein
\ncontained shall be deemed to require Landlord to await the date whereon this
\nLease or the Term or any Renewal Terms would have expired had there been no
\nEvent of Default by Tenant and termination.<\/p>\n
SECTION 25.9. Nothing contained in this ARTICLE 25 shall limit or
\nprejudice the right of Landlord to prove and obtain as liquidated damages in
\nany bankruptcy, insolvency, receivership, reorganization or dissolution
\nproceeding an amount equal to the maximum allowed by any statute or rule of
\nlaw governing such proceeding and in effect at the time when such damages are
\nto be proved, whether or not such amount shall be greater than, equal to or
\nless than the amount of the damages referred to in any of the preceding
\nSections of this ARTICLE 25.<\/p>\n
SECTION 25.10. No receipt of moneys by Landlord from Tenant after
\nthe termination of this Lease or after the giving of any notice of the
\ntermination of this Lease shall reinstate, continue or extend the Term or any
\nRenewal Terms or affect any notice theretofore given to Tenant, or operate as
\na waiver of the right of Landlord to enforce the payment of Rental payable by
\nTenant hereunder or thereafter falling due, or operate as a waiver of the
\nright of Landlord to recover possession of the Premises by proper remedy,
\nexcept as herein otherwise expressly provided, it being agreed that after the
\ngiving of notice to terminate this Lease or the commencement of any suit or
\nsummary proceedings, or after a final order or judgment for the possession of
\nthe Premises, Landlord may demand, receive and collect any moneys due or
\nthereafter falling due without in any manner affecting such notice,
\nproceeding, order, suit or judgment, all such moneys collected being deemed
\npayments on account of the use and occupation of the Premises or, at the
\nelection of Landlord, on account of Tenant’s liability hereunder.<\/p>\n
SECTION 25.11. Except as otherwise expressly provided herein or as
\nprohibited by applicable law, Tenant hereby expressly waives the service or
\ngiving of any notice of intention to re-enter provided for in any statute, or
\nof the institution of legal proceedings to that end, and Tenant, for and on
\nbehalf of itself and all persons claiming through or under Tenant, also
\nwaives any and all rights provided by any law or statute now in force or
\nhereafter enacted or otherwise, of redemption or re-entry or repossession or
\nto restore the operation of this Lease in case Tenant shall be dispossessed
\nby a judgment or by warrant of any court or judge or in case of re-entry or
\nrepossession by Landlord or in case of any expiration or termination of this
\nLease. The terms “enter”, “re-enter”, “entry” or “re-entry” as used in this
\nLease are not restricted to their technical legal meaning. Nothing in this
\nSection shall affect Tenant’s rights, including rights to notice, which are
\nexpressly provided herein.<\/p>\n
SECTION 25.12. No failure by Landlord to insist upon the strict
\nperformance by Tenant of any covenant, agreement, term or condition of this
\nLease or to exercise any right or remedy consequent upon a breach thereof,
\nand no payment or acceptance of full or partial Rental during the continuance
\nof any such breach, shall constitute a waiver of any such breach or of such
\ncovenant, agreement, term or condition. No covenant, agreement, term or
\ncondition of this Lease to be performed or complied with by Tenant, and no
\nbreach thereof, shall be waived, altered or modified except by the specific
\nprovisions of a written instrument executed by Landlord. No waiver by
\nLandlord of any breach shall affect or alter this Lease, but each and every
\ncovenant, agreement, term and condition of this Lease <\/p>\n
62<\/p>\n
shall continue in full force and effect with respect to any other
\nthen-existing or subsequent breach thereof.<\/p>\n
SECTION 25.13. In the event of any breach or threatened breach or
\nrepudiation by Tenant of this Lease or of any of the covenants, agreements,
\nterms or conditions contained in this Lease, Landlord shall be entitled to
\nenjoin such breach, threatened breach or repudiation and shall have the right
\nto invoke any and all rights and remedies allowed at law or in equity or by
\nstatute or otherwise as though re-entry, summary proceedings, and other
\nremedies were not provided for in this Lease.<\/p>\n
SECTION 25.14. Each right and remedy of Landlord provided for in
\nthis Lease shall be cumulative and shall be in addition to every other right
\nor remedy provided for in this Lease or now or hereafter existing at law or
\nin equity or by statute or otherwise, and the exercise or beginning of the
\nexercise by Landlord of any one or more of the rights or remedies provided
\nfor in this Lease or now or hereafter existing at law or in equity or by
\nstatute or otherwise shall not preclude the simultaneous or later exercise by
\nLandlord of any or all other rights or remedies provided for in this Lease or
\nnow or hereafter existing at law or in equity or by statute or otherwise.<\/p>\n
SECTION 25.15. If after an Event of Default has occurred (and any
\napplicable cure periods have expired) and while such Event of Default
\ncontinues uncured, either (i) Guarantor shall have made a general assignment
\nfor the benefit of its creditors, or (ii) Guarantor or its estate shall have
\nbecome the subject of any bankruptcy, insolvency, reorganization or similar
\nproceeding, which proceeding shall not have been dismissed or vacated within
\n90 days after its commencement, or (iii) Guarantor shall have terminated its
\nexistence or gone out of business, or (iv) Guarantor shall have repudiated
\nany of its material obligations under the Guaranty, then in addition to all
\nother remedies of Landlord hereunder (other than its rights to terminate this
\nLease and\/or dispossess Tenant, as to which see the final sentence of this
\nSection), Landlord may, in its discretion, by notice to Tenant and Guarantor
\n(which notice, referred to herein as a “SECTION 25.15 NOTICE,” shall
\nexpressly state that Landlord is exercising its rights under this SECTION
\n25.15), accelerate all obligations of Tenant hereunder for Rental, in which
\ncase all amounts of Rental (including, without limitation, Fixed Rent) which
\nwould have become due or payable by Tenant to Landlord hereunder for any
\nperiod or at any time through the end of the Term (including any Renewal
\nTerm, if exercised) shall immediately be due and payable in full (provided,
\nhowever, that any such amounts so due and payable shall be discounted to
\npresent value at the rate per annum equal to the yield, as in effect on the
\ndate of the Section 25.15 Notice, on U.S. Treasury debt instruments which
\nmature in the month in which the Lease Term is scheduled to end). From and
\nafter the time (if any) when Landlord has duly exercised its right to
\naccelerate as provided in this Section and has also actually received in cash
\nthe full amount (discounted to present value as provided in the preceding
\nsentence) of all Rental which would have become due or payable hereunder
\nthrough the end of the Term as provided in the preceding sentence (the “FULL
\nTERM RENTAL PAYMENT RECEIPT DATE”), Landlord shall not be entitled to
\nterminate this Lease or to dispossess Tenant until the end of the Term with
\nrespect to which Landlord had received such accelerated, commuted payment of
\nRental; but Landlord may, at any time until the Full Term Rental Payment
\nReceipt Date, rescind any Section 25.15 Notice it may <\/p>\n
63<\/p>\n
theretofore have given and thereafter exercise its rights to terminate this
\nLease or dispossess Tenant hereunder.<\/p>\n
SECTION 25.16. If an order for relief is entered or if a stay of
\nproceeding or other acts becomes effective in favor of Tenant or Tenant’s
\ninterest in this Lease, in any proceeding which is commenced by or against
\nTenant, under the present or any future federal bankruptcy code or any other
\npresent or future applicable federal, state or other statute or law, Landlord
\nshall be entitled to invoke any and all rights and remedies available to it
\nunder such bankruptcy code, statute, law or this Lease, including, without
\nlimitation, such rights and remedies as may be necessary to adequately
\nprotect Landlord’s right, title and interest in and to the Premises or any
\npart thereof and adequately assure the complete and continuous future
\nperformance of Tenant’s obligations under this Lease.<\/p>\n
SECTION 25.17. If this Lease shall terminate as a result of an Event
\nof Default, and also (regardless of whether or not this Lease shall have
\nterminated) at any time after an Event of Default has occurred (and any
\napplicable cure period has expired), any funds of Tenant (including the
\ninterest, if any, accrued thereon) then held by Landlord may be applied by
\nLandlord to any sums then due and owing by Tenant to Landlord hereunder and
\nto any damages payable by Tenant (whether provided for herein or by law or in
\nequity) as a result of such termination or Event of Default.<\/p>\n
ARTICLE 26
\n NOTICES<\/p>\n
SECTION 26.1. All notices, demands, requests, consents, approvals or
\nother communications (each of which is referred to herein as a “NOTICE”) made
\nor required to be given pursuant to, under or by virtue of this Lease must be
\nin writing. Notices shall be delivered to the respective parties at the
\nfollowing respective addresses:<\/p>\n
If to Landlord: CTC Investments Limited
\n 9665 Wilshire Blvd., Suite 200
\n Beverly Hills, CA 90212
\n Attention: R. Christian B. Evensen
\n K. Robert Turner<\/p>\n
with a copy to: Mayer, Brown & Platt
\n 190 South LaSalle Street
\n Chicago, Illinois 60603
\n Attention: Robert M. Berger
\n Douglas Lubelchek<\/p>\n
If to Tenant: Coach Distribution Company
\n 410 Commerce Boulevard
\n Carlstadt, New Jersey 07072
\n Attention: Mr. Richard Jeffrey<\/p>\n
64<\/p>\n
with a copy to: Foley & Lardner
\n 200 Laura Street
\n Jacksonville, Florida 32202
\n Attention: David C. Cook
\n John M. Welch<\/p>\n
If Landlord should so request of Tenant, Tenant shall also deliver a copy of
\nany Notice it gives to Landlord, to any Secured Lender that Landlord may
\ndesignate in such request, at such Secured Lender’s address as furnished to
\nTenant by Landlord. Any Notice shall be deemed given upon the first to occur
\nof (i) actual receipt by the party to whom it is being given, (ii) the date
\non which proper delivery of such Notice is refused by the party to whom it is
\nbeing given, (iii) the third Business Day after the date on which such Notice
\nwas deposited in the U.S. Mails, properly addressed, by first class certified
\nmail return receipt requested, with all proper postage prepaid, or (iv) the
\nfirst Business Day after being deposited with a recognized national overnight
\ncourier service for next-day delivery, properly addressed, with all charges
\nprepaid or otherwise charged to the sender. Notices may be given on behalf of
\nany party by such party’s attorneys at law. Any party may change its address
\nfor purposes of receipt of Notices hereunder by giving notice of such change
\nto the other party in accordance with this SECTION 26.1.<\/p>\n
SECTION 26.2. If Landlord shall designate the holder of any Secured
\nLoan as a Person to whom copies of all Notices from Tenant shall be sent,
\nsuch designation shall be irrevocable during the term of such Secured Loan,
\nand no Notice from Tenant shall be deemed to have been validly given unless
\nand until a copy thereof is also given to such holder. (Such Secured Lender
\nmay change its address or may be replaced by a new holder of such Secured
\nLoan by Notice given to Landlord and Tenant.)<\/p>\n
ARTICLE 27
\n SIGNAGE<\/p>\n
SECTION 27.1. Tenant shall, at its sole cost and expense, deliver to
\nLandlord such signs, monuments or markers setting forth Tenant’s name and
\nlogo as it may wish to have installed on (a) the entrance doors of any
\nBuilding, (b) the exterior walls of any Building, and (c) in the parking
\nareas of any Building. Tenant shall submit to Landlord for its approval the
\nplans and specifications for such signs, monuments or markers (“SIGNAGE
\nPLAN”) as soon as practical hereafter but no later than December 1, 1994;
\nprovided, however, that if the Signage Plan is delivered after December 1,
\n1994, then (i) Tenant will pay to Landlord on demand all amounts, costs,
\nexpenses and liabilities of every kind that Landlord may pay or incur
\n(including, without limitation, construction costs and interest on any
\nconstruction loan) as a direct or indirect result of such late delivery of
\nthe Signage Plan, and (ii) all deadlines, performance dates and similar
\ntime-related obligations of Landlord under or concerning this Lease
\n(including, without limitation, the Required Delivery Date [defined in the
\nLeasehold Improvement Agreement]) shall be deferred and moved back by an equal
\nnumber of days or (if longer) the period of delay in the construction of the
\nInitial Building that was directly or indirectly caused or occasioned by such
\nlate delivery of the Signage Plan. Landlord shall be <\/p>\n
65<\/p>\n
responsible for installing any signs, monuments or markers delivered to it by
\nTenant in compliance with the Signage Plan, and Landlord shall obtain all
\nnecessary sign permits, approvals or certificates required by any
\nGovernmental Authorities, but Tenant shall pay all costs in excess of
\n$2,500.00 which are paid or incurred in connection with such installation or
\nobtaining of permits, approvals or certificates.<\/p>\n
SECTION 27.2. Tenant shall be responsible, at its sole cost and
\nexpense, for (a) maintaining in force all sign permits, if any, required by
\nany Governmental Authorities, and (b) all maintenance, repair and cleaning of
\nTenant’s and its Subtenants’ signs, and the provisions and conditions of
\nARTICLE 12 shall apply to each such sign. All such signs shall be deemed to
\nbe Tenant’s Property for the purposes of ARTICLES 11 and 13.<\/p>\n
SECTION 27.3. At any time during the Term or any Renewal Term,
\nTenant may, at its sole cost and expense, remove or cause the removal of any
\nsigns installed or directed or permitted to be installed by Tenant. At the
\nend of the Term or any Renewal Term, Tenant, at its sole cost and expense,
\nshall remove from the Premises all signs installed or directed or permitted
\nto be installed by Tenant or any Person acting, holding or claiming by,
\nthrough or under Tenant. Upon the removal of any such sign, Tenant shall, at
\nits sole cost and expense, (a) repair any damage caused by such sign or such
\nremoval, and (b) restore the elements of the Premises (including, without
\nlimitation, the Building) from which such signs are removed in accordance
\nwith the standards set out, and to the condition described, in SECTION 34.1.<\/p>\n
SECTION 27.4. The provisions of SECTION 10.14 shall apply to all
\nsigns of Tenant (or any Person holding or claiming by, through or under
\nTenant) that in any way, directly or indirectly, advertise or inform that
\nspace at or within the Premises is or may be available, whether by
\nassignment, subletting or otherwise. The provisions of SECTION 27.2 and 27.3
\nshall also apply (INTER ALIA) to such signs, but in the event of an
\ninconsistency between the provisions of SECTION 10.14 and the provisions of
\nSECTIONS 27.2 and 27.3 as applied to such advertising signs, the provisions
\nof SECTION 10.14 shall govern and control.<\/p>\n
SECTION 27.5. Tenant may, at its sole cost and expense, erect and
\nmaintain one dignified sign at the edge of the South Access Roadway where
\nsuch roadway ends at the south boundary of Parcel D. Such sign shall at all
\ntimes conform to the requirements of all applicable laws and ordinances and
\nthe CC&Rs, as well as to all provisions of this Lease applicable to signs. To
\nthe extent (if any) necessary from time to time under applicable zoning
\nordinances for the maintenance of such sign, Landlord agrees that if and to
\nthe extent it will not thereby become obligated to pay, incur, undertake or
\nsustain any payment, liability, obligation or risk of any kind, Landlord will
\ndo one of the following (it shall be within Landlord’s sole and absolute
\ndiscretion to determine which of the following Landlord will do at any
\nparticular time, Landlord having the right at any time and from time to time
\nto make a different election): (i) cause the fee title to the South Access
\nRoadway or Parcel D to be held by the same Person who holds the fee title to
\nParcel A; (ii) cause the South Access Roadway to be leased to Tenant pursuant
\nto a lease which grants to Tenant no rights of any kind whatsoever thereto,
\nand reserves to Landlord or its designee all rights of every kind whatsoever
\nthereto, except <\/p>\n
66<\/p>\n
only such bare leasehold estate as may be required to support Tenant’s right
\nto maintain thereupon the access sign described in this Section; or (iii)
\ntake any other action, or do any other thing, which (at no cost, expense,
\nliability or risk to Landlord) would be sufficient to allow Tenant to
\nmaintain the sign described in this Section.<\/p>\n
ARTICLE 28
\n Omitted.<\/p>\n
ARTICLE 29
\n AMENDMENTS TO CC&R’S<\/p>\n
Notwithstanding anything to the contrary provided herein, (a)
\nLandlord shall not enter into or consent to any modification or amendment of
\nthe CC&R’s which materially adversely affects Tenant without obtaining the
\nwritten consent of Tenant (which consent shall not be unreasonably withheld
\nor delayed by Tenant), and (b) Landlord shall not terminate or agree or
\nconsent to a termination of the CC&R’s without the written consent of Tenant
\n(which consent shall not be unreasonably withheld or delayed by Tenant).
\nLandlord agrees to consent to, join in and execute (if required) any
\neasement, modification or amendment to the CC&R’s, licenses and any other
\nagreement reasonably requested by Tenant, Wilma, the Association or any
\nGovernmental Authority which is necessary for Tenant’s use or enjoyment of
\nthe Premises, but only if (i) the same does not impose any costs,
\nobligations, liabilities or risks on Landlord (or Tenant delivers to Landlord
\nthe binding and enforceable written agreement of Tenant, satisfactory in all
\nrespects to Landlord, by which Tenant agrees to pay all such costs and to
\ndefend, indemnify and hold Landlord harmless from and against all such costs,
\nobligations, liabilities and risks, it being expressly agreed hereby that any
\nsuch agreement of Tenant, and all of Tenant’s obligations and liabilities
\nthereunder, shall also automatically constitute obligations of Tenant under
\nthis Lease, the breach or default with respect to which will also constitute
\na Default hereunder, and which constitute “Obligations” guarantied by
\nGuarantor under the Guaranty), and (ii) the same does not adversely affect
\nany of Landlord’s other properties or the security or interests of any
\nSecured Lender in, to or concerning the Premises, the Parcels or this Lease.
\nEach party will provide to the other party, promptly after its receipt
\nthereof, a copy of any notice such party receives concerning the CC&Rs.<\/p>\n
ARTICLE 30
\n CERTAIN PROVISIONS RELATING TO SECURED LOANS<\/p>\n
SECTION 30.1. If any act or omission of Landlord would give Tenant
\nthe right, immediately or after lapse of a period of time, to cancel or
\nterminate this Lease, or to claim a partial or total eviction, or to have any
\nabatement or reduction of or offset against any Rental hereunder, Tenant
\nshall not exercise such right until thirty (30) days after it has given
\nwritten notice of such act or omission to Landlord and to each Secured
\nLender; and any purported exercise by Tenant of such right before 30 days
\nhave elapsed from its giving of such notice shall be void. The provisions of
\nthis SECTION 30.1 are not intended to, and shall not be construed to, limit,
\nqualify or modify the provisions of ARTICLE 23 or any other provision of this
\nLease.<\/p>\n
67<\/p>\n
SECTION 30.2.<\/p>\n
(a) Landlord shall cause each Secured Lender who holds a
\nlien or security interest in the Premises or any of the Parcels as to which a
\nvalid, effective, unexercised Option then remains outstanding, to execute,
\nacknowledge and deliver to Tenant, not later than thirty (30) days after
\nLandlord acquires financing from any such Secured Lender, an instrument in
\nsubstantially the form of one of the forms comprising EXHIBIT J attached
\nhereto (or another form reasonably acceptable to Tenant) (herein called a
\n“NONDISTURBANCE AGREEMENT”). Until such time (if any) as said Nondis turbance
\nAgreement is delivered to Tenant, such Secured Lender shall not be entitled
\nto any of the rights, benefits or privileges accorded to Secured Lenders
\nunder the provisions of this Lease.<\/p>\n
(b) Not later than ten days after Landlord tenders to
\nTenant a form thereof signed by a Secured Lender or prospective Secured
\nLender, Tenant shall execute, acknowledge and deliver a Nondisturbance
\nAgreement to any Secured Lender or any prospective Secured Lender designated
\nby Landlord from time to time. If Tenant fails to deliver such Nondisturbance
\nAgreement to any Secured Lender or prospective Secured Lender within such
\nten-day period, Landlord may execute and deliver such Nondisturbance
\nAgreement in Tenant’s name, place and stead, and Tenant hereby grants to
\nLandlord an irrevocable power of attorney (which power Tenant acknowledges is
\ncoupled with an interest), in Tenant’s name, place and stead to execute,
\nacknowledge and deliver any such Nondisturbance Agreement.<\/p>\n
SECTION 30.3. Within ten Business Days after being requested to do
\nso by Landlord, Tenant shall execute and deliver an Environmental Indemnity
\nin a form substantially identical to the form of EXHIBIT L attached hereto to
\nany Secured Lender or any prospective Secured Lender.<\/p>\n
SECTION 30.4. Upon reasonable request from Landlord, Tenant shall
\ndeliver to Landlord or any Secured Lender or prospective Secured Lender a
\nwritten letter of opinion from Tenant’s legal counsel satisfactory to
\nLandlord or such Secured Lender (as the case may be), as to Tenant’s
\nauthority to execute this Lease, Tenant’s due execution of this Lease, the
\nenforceability of this Lease and its nonconflict with laws and contracts, and
\nTenant’s good standing in the state of its incorporation and the State of
\nFlorida.<\/p>\n
SECTION 30.5 Upon request from Landlord, Tenant shall deliver to
\nLandlord, any Secured Lender or prospective Secured Lender, and any purchaser
\nor prospective purchaser of all or part of Landlord’s interest in the
\nPremises or this Lease, an estoppel certificate as to the existence and
\nvalidity of this Lease (as it may then have been amended, modified or
\nrestated), the nonexistence of any defaults hereunder, the nonpayment of any
\nRental in advance, the performance by Landlord of its obligations hereunder,
\nand any other reasonable or customary matters.<\/p>\n
ARTICLE 31
\n ENVIRONMENTAL MATTERS<\/p>\n
68<\/p>\n
SECTION 31.1 Tenant covenants that after the Commencement Date: (a) the
\nParcels shall be maintained free of contamination from any Hazardous
\nSubstances (hereinafter defined) except any which were present on the Parcels
\nas of the Commencement Date through no fault of Tenant or any Person acting
\nor claiming by, through or under Tenant; (b) the Premises shall not be used
\nfor the manufacture, storage, generation or disposal of any Hazardous
\nSubstances; (c) Tenant shall not be, and shall not permit any assignee or
\nSubtenant to be, involved in operations at or near the Premises that could
\nlead to the imposition on Landlord of liability, or the creation of a lien on
\nthe Premises or any assets of Landlord, under any Requirements relating to
\nHazardous Substances; and (d) Tenant shall not cause or permit to exist or
\noccur any deposit, disposal, discharge, spillage, loss, emission, escape,
\nmigration, seepage or filtration of oil, petroleum, chemical liquids or
\nsolids, liquid or gaseous products, or any Hazardous Substances upon, under,
\nabove, from, or within the Parcels; provided, however, that Tenant may, at
\nTenant’s sole risk, use upon the Premises any Hazardous Substances or
\nhazardous materials which are necessary for Tenant to carry on, in the
\nordinary course of its business, its presently intended warehouse,
\ndistribution or office uses on the Premises so long as Tenant complies with
\nall applicable Environmental Laws and with then-generally-accepted good and
\nprudent business practices relating thereto. (Nothing in the proviso at the
\nend of the preceding sentence shall be deemed to diminish, restrict, limit or
\naffect in any way the breadth, generality or scope of Tenant’s
\nindemnification or other obligations or undertakings set out the remainder of
\nthis ARTICLE 31.)<\/p>\n
SECTION 31.2 Except for matters caused by Landlord’s own acts or by
\nthe acts of any Person acting or claiming by, through or under Landlord (for
\nall purposes of this Lease, the phrase “Persons acting or claiming by,
\nthrough or under Landlord”, and any similar phrase, does not include Tenant
\nor its assignees, Subtenants, licensees, or Persons acting, claiming or
\nholding by, through or under Tenant or its assignees, Subtenants or
\nlicensees), Tenant hereby agrees to defend, indemnify, and hold Landlord
\nharmless from and against any and all losses, liabilities (including, without
\nlimitation, strict liability), damages, injuries, expenses (including,
\nwithout limitation, attorneys’ fees and disbursements), costs of any
\nsettlement or judgment, and claims of any and every kind whatsoever paid,
\nincurred or suffered by, or asserted against, Landlord by any Governmental
\nAuthority or other Person for, with respect to, or as a direct or indirect
\nresult of, the presence on, within or under, or the escape, seepage, leakage,
\nspillage, discharge, emission, migration or release from, the Parcels of any
\nHazardous Substance, which conditions either (i) were created or caused by
\nTenant or any Person acting by, through or under Tenant or (ii) did not exist
\non the Parcels prior to the Commencement Date (including, without limitation,
\nany losses, liabilities, including strict liability, damages, injuries
\nexpenses, including attorneys’ fees and disbursements, costs of any
\nsettlement or judgment or claims asserted or arising under the Comprehensive
\nEnvironmental Response, Compensation and Liability Act, as amended, RCRA, as
\namended, or any federal, state or local so-called “Superfund” or “Superlien”
\nlaws or any other statute, law, ordinance, code, rule, regulation, order or
\ndecree now or hereafter regulating, governing, controlling, relating to, or
\nimposing liability [including, without limitation, strict liability] or
\nstandards of conduct for or concerning any Hazardous Substance
\n[collectively, “ENVIRONMENTAL LAWS”] and including amounts necessary to pay
\ncosts of investigation and clean-up of Hazardous Substances and toxic
\nsubstances on or affecting the Property).<\/p>\n
69<\/p>\n
SECTION 31.3 For purposes hereof, “HAZARDOUS SUBSTANCES” shall mean
\nand include all elements, wastes, materials, substances or compounds which
\nare contained in the list of hazardous substances adopted by the United
\nStates Environmental Protection Agency (the “EPA”) or the Florida Department
\nof Environmental Protection (the “DEP”) or the list of toxic pollutants
\ndesignated by Congress or the EPA or the DEP or defined by any other Federal,
\nstate or local statute, law, ordinance, code, rule, regulation, order or
\ndecree regulating, relating to, governing or imposing liability or standards
\nof conduct concerning any hazardous, toxic or dangerous waste, substance or
\nmaterial as now or at any time hereafter in effect, including, without
\nlimitation, asbestos, PCBs, radioactive substances, methane, petroleum
\ndistillates, compounds and derivatives, petrochemicals, volatile hydrocarbons
\nand industrial solvents.<\/p>\n
SECTION 31.4 If either Tenant or Landlord receives any notice of (a)
\nthe happening of any event involving in any way the presence, spill, release,
\nleak, seepage, discharge of cleanup of any Hazardous Substance on or from the
\nParcels, or (b) any complaint, order, citation or notice with regard to air
\nemissions, water discharges, or any other environmental, health or safety
\nmatter affecting Landlord or the Parcels (an “ENVIRONMENTAL COMPLAINT”) from
\nany Person (including without limitation the EPA or the DEP), then such party
\nreceiving the notice shall immediately notify the other party of said notice
\nand shall promptly send such other party a complete copy of any such notice
\nthat is in written form.<\/p>\n
SECTION 31.5 Unless caused by Landlord’s own acts or by the acts of
\nany Person acting or claiming by, through or under Landlord (for all purposes
\nof this Lease, the phrase “Persons acting or claiming by, through or under
\nLandlord”, and any similar phrase, does not include Tenant or any assignee,
\nSubtenant or licensee of or under Tenant or any other Person acting, claiming
\nor holding by, through or under Tenant or any assignee, Subtenant or licensee
\nof Tenant) and except for Hazardous Substances that were present on the
\nPremises on the Commencement Date through no fault of Tenant or any Person
\nacting or claiming by, through or under Tenant, Tenant shall bear the sole
\nand complete responsibility and expense to clean up, remove, resolve or
\nminimize the impact of, or otherwise deal with, any and all such Hazardous
\nSubstances and Environmental Complaints following receipt of any notice from
\nany Person (including without limitation the EPA or the DEP) asserting the
\nexistence of any Hazardous Substance, or an Environmental Complaint,
\npertaining to the Parcels or any part thereof which could result in an order,
\njudgment, complaint, decree, suit or other action against Landlord or any
\nSecured Lender or Tenant or Tenant’s representatives, agents or Subtenants or
\nwhich, in the sole opinion or Landlord, could impair the value of Landlord’s
\ninterest in the Premises or the Parcels. With respect to all matters
\ndescribed above, Tenant shall take all action necessary to obtain a closure
\nletter or other final, favorable written disposition of the matter from the
\napplicable Governmental Authorities and shall deliver said letter or other
\nwritten disposition to Landlord. If Tenant fails to take any action required
\nherein, Landlord shall have the right (but not the obligation), after
\nproviding Tenant with notice and a reasonable opportunity to cure, to enter
\nonto the Premises or to take such other actions as it deems necessary or
\nadvisable so to clean up, remove, resolve, minimize the impact of, or
\notherwise deal with any such Hazardous Substances or Environmental Complaint,
\nin which event all costs and expenses incurred by Landlord in the exercise of
\nany such rights shall be paid and reimbursed to Landlord by Tenant upon
\ndemand.<\/p>\n
70<\/p>\n
SECTION 31.6<\/p>\n
(a) Promptly after its receipt of any report of or concerning the
\nenvironmental condition of, or the presence or absence of Hazardous
\nSubstances at, upon or under, or the compliance or noncompliance with any
\nEnvironmental Laws of, the Parcels or any part thereof, Tenant will deliver a
\ncomplete copy of such report to Landlord.<\/p>\n
(b) Each of Landlord and any Secured Lender shall have the right
\nfrom time to time, in its reasonable discretion, to cause to be performed an
\nenvironmental audit and, if deemed necessary by Landlord, an environmental
\nrisk assessment, concerning or relating to the Parcels (or any portions
\nthereof) and the hazardous waste management practices of and the hazardous
\nwaste disposal sites used by Tenant and any other users of the Premises; and
\nTenant grants to Landlord and each such Secured Lender and their respective
\nagents, contractors and designees an irrevocable license to enter upon the
\nPremises at any reasonable time or times for purposes of performing the same.
\nAll costs and expenses incurred by Landlord in the exercise of such rights
\nshall be payable by Landlord, except that Tenant shall pay the costs of (i)
\nall such audits and reports as are done either (A) when Landlord or any
\nSecured Lender has any reasonable basis to believe that any Hazardous
\nSubstance may be present on, under, at or about the Parcels or (B) in
\nsatisfaction of a requirement of a Secured Lender or (C) not sooner than
\nthree years after the date of the most recent such audit and report done at
\nLandlord’s request, as well as (ii) all audits and reports that disclose a
\nviolation not shown as existing in a written environmental consultant’s
\nreport previously obtained by Landlord (except for violations which Tenant
\nestablishes existed before the Commencement Date and were not disclosed in
\nany environmental report received by Tenant prior to the execution of this
\nLease).<\/p>\n
SECTION 31.7 Landlord represents to Tenant that, as of the date of
\nthis Lease, Landlord has, and as of the Commencement Date Landlord will have,
\nno actual, conscious knowledge of any violation by the Parcels of any
\nEnvironmental Law except as may be disclosed on any environmental
\nconsultants’ reports delivered to Tenant before the date of this Lease.
\nTenant acknowledges that, except as set out in the preceding sentence,
\nLandlord has made no representation of any kind regarding Hazardous Materials
\nor Environmental Laws and that Tenant is relying, and is willing to rely,
\nsolely upon the environmental reports delivered to Tenant before the
\nexecution of this Lease.<\/p>\n
SECTION 31.8 Unless caused by Tenant’s own acts or by the acts of
\nany Person acting, holding or claiming by, through or under Tenant, Landlord
\nhereby agrees to defend, indemnify and hold Tenant harmless from and against
\nany and all losses, liabilities (including, without limitation, strict
\nliability), damages, injuries, expenses (including, without limitation,
\nattorneys’ fees and disbursements), costs of any settlement or judgment, and
\nclaims of any and every kind whatsoever paid, incurred or suffered by, or
\nasserted against, Tenant by any Governmental Authority or other Person for,
\nwith respect to, or as a direct or indirect result of, the presence on or
\nunder, or the escape, seepage, leakage, spillage, discharge, emission,
\nmigration or release from, the Parcels of any Hazardous Substance which
\nresulted solely from conditions existing on the Parcels on or prior to the
\nCommencement Date (except for such, if any, as were disclosed in any
\nenvironmental report delivered to Tenant before the date of this Lease),
\nexcept to the extent the same was exaggerated, <\/p>\n
71<\/p>\n
exacerbated, aggravated or otherwise affected by any act of Tenant or any
\nPerson acting, holding or claiming by, through or under Tenant at any time or
\nby any other Person after the Commencement Date (including, without
\nlimitation, any losses, liabilities, including strict liability, damages,
\ninjuries expenses, including attorneys’ fees and disbursements, costs of any
\nsettlement or judgment or claims asserted or arising under any Environmental
\nLaws).<\/p>\n
SECTION 31.9 Unless caused by Tenant’s own acts or by the acts of
\nany Person acting, holding or claiming by, through or under Tenant, Landlord
\nshall bear the sole and complete responsibility and expense to clean up,
\nremove, resolve or minimize the impact of, or otherwise deal with, any
\nEnvironmental Complaint with respect solely to environmental conditions that
\nexisted on the Premises on or prior to the Commencement Date (except for
\nsuch, if any, as were disclosed in any environmental report delivered to
\nTenant before the date of this Lease), except to the extent the same was
\nexaggerated, exacerbated, aggravated or otherwise affected by any act of
\nTenant or any Person acting, holding or claiming by, through or under Tenant
\nat any time or by any other Person after the Commencement Date, following
\nreceipt of any such Environmental Complaint pertaining to the Premises or any
\npart thereof as to such environmental conditions which could result in an
\norder, suit or other action against Landlord or Tenant or Tenant’s
\nrepresentatives, agents or Subten ants or which, in the reasonable opinion of
\nTenant, could impair the value of Tenant’s interest in the Premises. If
\nrequired herein, Landlord shall take all action necessary to obtain a closure
\nletter or other final, favorable written disposition of such matter from the
\napplicable Governmental Authori ties and shall deliver said letter or other
\ndisposition to Tenant. If Landlord fails to take any action required herein,
\nTenant shall have the right (but not the obligation), after providing
\nLandlord with notice and a reasonable opportunity to cure, to take such
\nactions as it deems necessary or advisable so to clean up, remove, resolve,
\nminimize the impact of, or otherwise deal with any such Environ mental
\nComplaint, in which event, all costs and expenses incurred by Tenant in the
\nexercise of any such rights shall be paid and reimbursed to Tenant by
\nLandlord upon demand.<\/p>\n
SECTION 31.10. All of Tenant’s and Landlord’s respective rights,
\nremedies, liabilities and obligations under this ARTICLE 31 shall survive the
\nexpiration and the termination of this Lease (but neither party will have any
\nobligation or liability of any kind to the other party under this ARTICLE 31
\nfor or concerning (i) any condition that first came into existence after the
\nExpiration Date or (ii) any violation of any Environmental Law that first
\noccurred after the Expiration Date and was not caused by, and was not a
\nconsequence or result of, any action on omission of such party, or any
\ncondition that existed, before the expiration or termination of this Lease).<\/p>\n
SECTION 31.11. Under no circumstances whatsoever shall any Secured
\nLender (or any successor or assign of any Secured Lender) have any personal
\nliability or obligation of any kind to Tenant under or with respect to this
\nARTICLE 31 or any provision hereof (but the provisions of this Section shall
\nnot be construed as negating any liability of a Secured Lender in its
\ncapacity as outright owner of any Parcel for any act of such Secured Lender
\nafter it becomes the outright owner of such Parcel).<\/p>\n
ARTICLE 32<\/p>\n
72<\/p>\n
CERTIFICATES BY LANDLORD AND TENANT<\/p>\n
SECTION 32.1. Tenant shall, within ten (10) days after each and
\nevery written request by Landlord, execute, acknowledge and deliver to
\nLandlord or any other Person designated by Landlord a statement in writing
\ncertifying as to such matters regarding this Lease as Landlord may reasonably
\nrequest and certifying that the statement shall be binding upon Tenant and
\nmay be relied upon by any then existing or prospective Secured Lender,
\nassignee or purchaser of all or a portion of Landlord’s interest in the
\nPremises or this Lease or of an ownership interest in the Landlord. Tenant
\nagrees that the certificate attached hereto as EXHIBIT K shall be deemed
\nreasonable.<\/p>\n
SECTION 32.2. Landlord agrees at any time and from time to time upon
\nnot less than ten (10) days’ prior written notice by Tenant, to execute,
\nacknowledge and deliver to Tenant or any other Person designated by Tenant a
\nstatement in writing certifying as to such matters regarding this Lease as
\nTenant may reasonably request. Such statement shall be binding upon Landlord
\nand may be relied upon by any then-existing or prospective permitted
\nSubtenant, assignee or purchaser of all or a portion of Tenant’s interest in
\nthis Lease or an ownership interest in Tenant.<\/p>\n
ARTICLE 33
\n CONSENTS AND APPROVALS<\/p>\n
SECTION 33.1.<\/p>\n
(a) All consents and approvals which may be given under
\nthis Lease shall, as a condition of their effectiveness, be in writing. The
\ngranting of any consent or approval by a party to perform any act requiring
\nconsent or approval under the terms of this Lease, or the failure on the part
\nof a party to object to any such action taken without the required consent or
\napproval, shall not be deemed a waiver by the party whose consent was
\nrequired of its right to require such consent or approval for any further
\nsimilar act, and each party hereby expressly covenants and warrants that as
\nto all matters requiring the other party’s consent or approval under the
\nterms of this Lease, the party requiring the consent or approval shall secure
\nsuch consent or approval for each and every happening of the event requiring
\nsuch consent or approval, and shall not claim any waiver on the part of the
\nother party of the requirement to secure such consent or approval.<\/p>\n
(b) If Tenant shall request Landlord’s consent and Landlord
\nshall fail or refuse to give such consent unreasonably in an instance where
\nLandlord is required pursuant to a provision of this Lease not to withhold
\nits consent unreasonably, Landlord’s liability hereunder for damages, if any,
\nshall be limited as provided in ARTICLE 43 and ARTICLE 48. Notwithstanding
\nanything which may be to the contrary herein, Landlord shall conclusively be
\ndeemed to have reasonably withheld its consent or approval if Landlord has
\nwithheld its consent or approval because a Secured Lender who has a right of
\nconsent or approval with respect to the matter in question under the terms of
\nthe Secured Loan such Secured Lender is holding, has failed or declined to
\ngive its consent or approval. Whenever this Lease provides in substance that
\na matter shall be as <\/p>\n
73<\/p>\n
determined in the reasonable judgment of Landlord, and a Secured Loan
\nprovides in substance that such matter shall be as determined by the Secured
\nLender holding such Secured Loan, Landlord shall conclusively be deemed to
\nhave exercised its judgment reasonably in determining such matter as required
\nby such Secured Lender. Landlord shall use reasonable efforts to obtain the
\nconsent or approval of such Secured Lender if Landlord would, with such
\nconsent or approval, give Landlord’s consent or approval.<\/p>\n
(c) Any matter or thing which is required under this Lease
\nto be done “satisfactorily” or to the “satisfaction” of a party need only be
\ndone “reasonably satisfactorily” or to the “reasonable satisfaction” of that
\nparty.<\/p>\n
ARTICLE 34
\n SURRENDER AT END OF TERM OR RENEWAL TERMS<\/p>\n
SECTION 34.1. On the last day of the Term or any Renewal Term (if
\nexercised), or upon the Expiration Date (if earlier), or upon a re-entry by
\nLandlord upon the Premises pursuant to ARTICLE 25 hereof, Tenant shall
\nsurrender and deliver to Landlord the Premises (a) in the same or better
\ncondition as on the Commencement Date, (b) in good order, good and working
\ncondition and good repair, except for (i) ordinary wear and tear, (ii) damage
\nby fire or other casualty or by condemnation or other taking that Tenant or
\nLandlord is required under this Lease to Restore but, despite reasonable
\ndiligence, was not by that time able to Restore (provided that all insurance
\nor condemnation proceeds comprising Restoration Funds which had not been
\napplied to such Restora tion shall have been deposited with Secured Lender,
\ntogether with any additional sums required to complete such Restoration as
\nestimated pursuant to SECTION 8.2 hereof), (iii) damage from any cause not
\nrequired to be repaired or Restored by Tenant or (iv) damage caused by
\nLandlord or by Persons acting or holding by, through or under Landlord (but
\nno provision of this Section shall be deemed to limit, restrict, diminish or
\naffect in any way any right of Tenant or Landlord under any policy of
\ninsurance), and (c) free and clear of all lettings, occupancies, possessions,
\nliens, security interests, charges and encumbrances other than those, if any,
\nwhich existed as of the Commencement Date, were created by or consented to by
\nLandlord, or which by their express written terms and conditions extend
\nbeyond the Expiration Date and which Landlord shall have expressly approved
\nin writing. Tenant hereby irrevocably waives any notice now or hereafter
\nrequired by law with respect to vacating the Premises on any such termination
\ndate or Expiration Date. Landlord shall have the right to make an inspection
\nof the Parcels following the surrender by Tenant to determine if Tenant has
\ncomplied with this Section and any other applicable provisions of this Lease.<\/p>\n
SECTION 34.2. On the last day of the Term or any Renewal Term (if
\nexercised), or upon the Expiration Date (if earlier), or upon re-entry by
\nLandlord upon the Premises pursuant to ARTICLE 25 hereof, Tenant shall
\ndeliver to Landlord, to the extent Tenant is then in possession or control of
\nthe same, Tenant’s executed counterparts of all Subleases and any service and
\nmaintenance contracts then affecting the Parcels, true and complete
\nmaintenance records for the Parcels, all original licenses and permits then
\npertaining to the Parcels, permanent or temporary Certificates of Occupancy
\nthen in effect for any or all Buildings, and all warranties and guarantees
\nthen in effect which Tenant has received in connection with any work or
\nservices performed or Equipment installed in any or all Buildings, together
\nwith a duly executed assignment thereof to Landlord.<\/p>\n
74<\/p>\n
SECTION 34.3. If Tenant fails for any reason whatsoever to deliver
\npossession of the Premises to Landlord as provided herein on the Expiration
\nDate (or earlier date on which Tenant is to return, surrender or deliver
\npossession to Landlord as provided in ARTICLE 25, in SECTION 34.2, or in any
\nother provision hereof; the earliest of such dates is referred to herein as
\nthe “POSSESSION TERMINATION DATE”), Tenant shall be deemed guilty of an
\nillegal and wrongful holding over and shall (i) pay Landlord on demand, with
\nrespect to such holdover period, rent (prorated for the actual number of days
\nin such holdover period until Tenant surrenders and returns possession to
\nLandlord of the entire Premises) equal to the greater of (i) holdover rent
\ncalculated in the manner expressly authorized by applicable Florida statutes
\n(if applicable Florida statutes expressly provide a formula or similar manner
\nfor calculating wrongful holdover rent for commercial or industrial rental
\nproperties), or (ii) if applicable Florida statutes do not expressly provide
\na formula or similar manner for calculating wrongful holdover rent for
\ncommercial or industrial rental properties, then at the rate equal to 150% of
\nthe Rental (including, without limitation, all Fixed Rent, Impositions and
\nother components of Rental) that was applicable and payable by Tenant under
\nthe Lease for and with respect to the twelve months immediately preceding the
\nPossession Termination Date. Notwithstanding Tenant’s obligation to pay, or
\nTenant’s payment of, such holdover rent for or on account of such holdover
\nperiod, Tenant shall nevertheless at all times after the Possession
\nTermination Date be and remain (i) guilty of wrongfully holding over
\npossession and (ii) obligated to deliver and return to Landlord possession of
\nthe Premises in the condition specified in SECTION 34.1 and to make the
\ndeliveries to Landlord provided for in SECTION 34.2 hereof.<\/p>\n
ARTICLE 35
\n ENTIRE AGREEMENT<\/p>\n
This Lease (including the Exhibits attached hereto and comprising a
\npart hereof) contains all of the promises, agreements, conditions,
\ninducements and understandings between Landlord and Tenant and supersedes and
\nentirely replaces any and all prior or contemporaneous agreements, promises
\nand understandings, and there are no promises, agreements, conditions,
\nunderstandings, inducements, warranties or representations, oral or written,
\nexpressed or implied, between them other than as herein expressly set forth.<\/p>\n
ARTICLE 36
\n QUIET ENJOYMENT<\/p>\n
Landlord covenants that, if and as long as Tenant shall faithfully
\nperform the agreements, terms, covenants and conditions hereof, Tenant and
\nany Person who lawfully and in conformity with the provisions hereof claims
\nthrough or under Tenant shall and may (subject, however, to the matters set
\nout on EXHIBIT B hereof and to all of the other provisions, reservations,
\nterms and conditions of this Lease) peaceably and quietly have, hold and
\nenjoy the Premises for the term hereby granted without molestation or
\ndisturbance by or from Landlord or any person claiming through or under
\nLandlord. Landlord warrants that as of the Commencement Date, it will own the
\nPremises free of any encumbrance superior to this Lease and Tenant’s interest
\nhereunder created or suffered by Landlord, except (a) those matters described
\non EXHIBIT B hereof, and (b) Secured Loans as provided <\/p>\n
75<\/p>\n
in ARTICLE 30. This covenant shall be construed as a covenant running with
\nthe Land, to and against successors to Landlord’s interest in this Lease, and
\nis not, nor shall it operate or be construed as, a personal covenant of
\nLandlord, except to the extent of Landlord’s interest in this Lease and only
\nso long as such interest shall continue, and thereafter this covenant shall
\nbe binding only upon successors in interest of Landlord’s interest in this
\nLease, to the extent of their respective interests, as and when they shall
\nacquire the same, and so long as they shall retain such interest.<\/p>\n
ARTICLE 37
\n LANDLORD’S CONTINGENCY<\/p>\n
Landlord’s obligations under this Lease shall be contingent upon
\nLandlord’s acquisition of fee simple title to and ownership of Parcel A,
\nParcel B, Parcel C and Parcel D on terms satisfactory to Landlord in its sole
\nand absolute discretion. If the foregoing contingency is not satisfied on or
\nprior to the 30th day after execution and delivery of the Lease by Tenant and
\nLandlord and execution and delivery of the Guaranty by Guarantor to Landlord,
\nthen Landlord may (subject to the last sentence of this ARTICLE 37) terminate
\nthis Lease by notice given to Tenant on or before the 35th day after the
\nexecution and delivery of the Lease and Guaranty to Landlord, and in such
\ncase this Lease will then automatically become null and void. Landlord’s
\nfailure to terminate the Lease by such date shall be deemed a waiver of such
\ncontingency. If Landlord’s contingency described in the first sentence of
\nthis ARTICLE 37 has not been satisfied by the date specified therefor in the
\nsecond sentence of this Article, Tenant may unilaterally extend the final
\ndate for satisfaction thereof from the 30th to the 60th day after execution
\nand delivery of this Lease by both parties hereto, by sending Landlord notice
\nof such extension before the 35th day after execution and delivery of this
\nLease, but if Tenant does so, and if during such 30-day extension period
\nLandlord for any reason either fails to commence construction (including
\nearth moving) work on Parcel A or, having commenced construction, stops or
\nmaterially slows down construction work on Parcel A, then automatically and
\nwithout further action of any Person each and every deadline or performance
\nand penalty date applicable to Landlord under the Leasehold Improvement
\nAgreement (including, without limitation, the stated Delivery Date specified
\ntherein) shall be extended and deferred 30 days beyond the date that would
\notherwise have been applicable thereto.<\/p>\n
ARTICLE 38
\n INVALIDITY OF CERTAIN PROVISIONS<\/p>\n
If any term or provision of this Lease or the application thereof to
\nany person or circumstances shall, to any extent, be invalid or
\nunenforceable, the remainder of this Lease, or the application of such term
\nor provision to persons or circumstances other than those as to which it is
\nheld invalid or unenforceable, shall not be affected thereby, and each term
\nand provision of this Lease shall be valid and be enforced to the fullest
\nextent permitted by law.<\/p>\n
76<\/p>\n
ARTICLE 39
\n FINANCIAL REPORTS<\/p>\n
Tenant shall deliver to Landlord three copies of Guarantor’s
\npublished annual reports, quarterly reports, and S.E.C. Forms 10-Q and 10-K
\n(or any successor or replacement forms required by applicable law as in
\neffect from time to time) during the Term of this Lease (but if Guarantor
\nceases to publish quarterly or annual financial reports, Tenant shall
\nnevertheless be obligated to deliver to Landlord quarterly and annual
\nfinancial statements of Guarantor, prepared [and certified by a senior officer
\nof Guarantor as having been prepared] in accordance with good accounting
\npractice on a consistently-applied basis, not later than 90 days after the
\nend of each fiscal quarter of Guarantor). Quarterly statements and 10-Q’s
\nshall be delivered within 60 days of the end of each fiscal quarter of
\nGuarantor (or, as long as Guarantor continues to be subject to the reporting
\nrequirements of the Securities Exchange Act of 1934, as amended, or any
\nsuccessor or replacement statute, such later date as such annual reports are
\nactually distributed to or made available for Guarantor’s shareholders, or
\nfiled with the S.E.C., as the case may be) and annual statements and 10-K’s
\nwithin 90 days of the end of each fiscal year of Guarantor (or, as long as
\nGuarantor continues to be subject to the reporting requirements of the
\nSecurities Exchange Act of 1934, as amended, or any successor or replacement
\nstatute, such later date as such annual reports are first either distributed
\nto or made available for Guarantor’s shareholders or filed with the SEC).
\nTenant shall not be required to furnish any other financial reports,
\noperating statements or any other statements or reports with respect to
\nTenant or Sara Lee Corporation. If Tenant assigns this Lease in conformity
\nwith the applicable provisions hereof and, as a result thereof, Sara Lee
\nCorporation is released from its obligations as Guarantor hereunder, and its
\nGuaranty is released, pursuant to the provisions of SECTION 10.2 hereof, the
\nassignee of Tenant’s rights and obligations shall be subject to all of the
\nrequirements and provisions of this ARTICLE 39 as though it were the
\nGuarantor expressly named herein.<\/p>\n
ARTICLE 40
\n RECORDING OF MEMORANDUM<\/p>\n
Landlord and Tenant, each upon the written request of the other or
\nany Secured Lender, shall execute, acknowledge and deliver a memorandum of
\nthis Lease, and of each modification of this Lease, in proper form for
\nrecordation in the public records of Duval County, Florida, which shall set
\nforth the matters described in Fla. Statutes Section 713.10(2) and shall
\ndescribe the Term, the existence of Expansion Options and Renewal Options,
\nthe existence of any easements (including, without limitation, the Parking\/
\nDriveway Facility), and such other material provisions hereof (if any) which
\nLandlord and Tenant may mutually determine are suitable and appropriate for
\ninclusion therein. Neither party shall record this Lease without the prior
\nconsent of the other party.<\/p>\n
ARTICLE 41
\n Omitted<\/p>\n
77<\/p>\n
ARTICLE 42
\n MISCELLANEOUS<\/p>\n
SECTION 42.1. The captions of this Lease are for convenience of
\nreference only and in no way define, limit or describe the scope or intent of
\nthis Lease or in any way affect this Lease.<\/p>\n
SECTION 42.2. The Table of Contents is for the purpose of
\nconvenience of reference only and is not to be deemed or construed in any way
\nas part of this Lease or as supplemental thereto or amendatory thereof.<\/p>\n
SECTION 42.3. The use herein of the neuter pronoun in any reference
\nto Landlord or Tenant shall be deemed to include any individual Landlord or
\nTenant, and the use herein of the words “successors and assigns” or
\n“successors or assigns” of Landlord or Tenant shall be deemed to include the
\nheirs, legal representatives and assigns of any individual Landlord or Tenant.<\/p>\n
SECTION 42.4. All of Tenant’s obligations hereunder with respect to
\nRestorations and\/or payment of any Shortfall shall (as they apply to any
\ndamage, destruction, condemnation or taking occurring prior to the Expiration
\nDate) survive any termination of this Lease.<\/p>\n
SECTION 42.5. If more than one Person becomes Landlord or Tenant
\nhereunder: the other party may require the signatures of all such Persons in
\nconnection with any notice to be given or action to be taken by that party
\nhereunder; and, each Person comprising a multi-Person Tenant or Landlord (but
\nnot including any shareholders of a party which is a corporation, trustees of
\na party which is a trust, partners of a party which is a general or limited
\npartnership, or other constituent members of any entity which is a party)
\nshall be fully liable for all of that party’s obligations hereunder, subject
\nto ARTICLE 43. Any notice by a party to any Person named as the other party
\nand designated in SECTION 26.1 (or in any notice given pursuant to that
\nSection) as an addressee of notices shall be sufficient and shall have the
\nsame force and effect as though given to all Persons named as such other
\nparty.<\/p>\n
SECTION 42.6. The terms “herein,” “hereunder” and words of similar
\nimport shall be construed to refer to this Lease as a whole, and not to any
\nparticular Article or Section, unless expressly so stated.<\/p>\n
SECTION 42.7. The term “and\/or” when applied to two or more matters
\nor things shall be construed to apply to any one or more or all thereof as
\nthe circumstances warrant at the time in question.<\/p>\n
SECTION 42.8. Except as otherwise expressly provided in this Lease,
\nthere shall be no merger of this Lease or the leasehold estate created hereby
\nwith the fee estate in the Premises or any part thereof by reason of the same
\nPerson’s acquiring or holding, directly or indirectly, this Lease or the
\nleasehold estate created hereby or any interest in this Lease or in such
\nleasehold estate as well as the <\/p>\n
78<\/p>\n
fee estate in the Premises; provided, however, that no such merger shall
\noccur in any event without the written consent of each Secured Lender.<\/p>\n
SECTION 42.9. Landlord and Tenant each covenants, warrants and
\nrepresents to the other as follows: no broker other than SBWE, Inc. was
\ninstrumental in bringing about or consummating this Lease on its behalf; and,
\nit had no dealings with any other broker, finder or other procuring Person
\nconcerning the leasing of the Premises by Landlord to Tenant. Landlord and
\nTenant shall each defend, indemnify and hold the other harmless against and
\nfrom any claims for any other brokerage commissions or fees, and all costs,
\nexpenses and liabilities in connection therewith, including, without
\nlimitation, attorneys’ fees and expenses, (a) in connection with such claims
\nif any broker or other Person claims to have had dealings with the
\nindemnifying party, and (b) in connection with the enforcement of a party’s
\nrights under this SECTION 42.9. Any brokerage commission or fee due SBWE,
\nInc. shall be paid by Landlord.<\/p>\n
SECTION 42.10.<\/p>\n
(a) This Lease may not be changed, modified, or terminated
\norally, nor may any provision hereof be waived, but only by a written
\ninstrument of change, modification or termination executed by the party
\nagainst whom enforcement of any change, modification, or termination or
\nwaiver is sought.<\/p>\n
(b) Each of Landlord and Tenant agrees to be a party
\nsignatory to an amendment or modification of this Lease, by instrument in
\nrecordable form, if requested to do so by a Secured Lender or a proposed
\nSecured Lender as a condition precedent to the placing, replacing,
\nrefinancing or extending of a Secured Loan, provided and upon condition that
\nsuch amendment or modification shall not (i) affect the financial obligations
\nof such party hereunder, (ii) adversely affect the value of the fee simple or
\nleasehold estate (as the case may be) of such party hereunder or (iii)
\nmaterially adversely affect, diminish or reduce any rights or remedies of
\nsuch party hereunder or materially increase the liabilities, responsibilities
\nor obligations of such party hereunder.<\/p>\n
(c) No amendment or modification of this Lease which could
\nhave an adverse effect on the rights or interests of, or the value of the
\ncollateral security of, any Secured Lender shall be effective without the
\nprior written consent of such Secured Lender if required under the terms of
\nits respective Secured Loan documentation.<\/p>\n
SECTION 42.11. This Lease shall be governed by and construed in
\naccordance with the laws of the State of Florida applicable to leases made
\nand to be performed in said State, without the aid of any canon or rule of
\nlaw requiring construction against the party drawing or causing this Lease to
\nbe drawn.<\/p>\n
SECTION 42.12. All references in this Lease to any particular
\n“Article”, “Articles”, “Section” or “Sections” shall be deemed to refer to
\nthe designated Article(s) or Section(s), as the case may be, of this Lease.<\/p>\n
79<\/p>\n
SECTION 42.13. All plans, drawings, specifications and models
\nrequired to be furnished by Tenant to Landlord under this Lease, including,
\nwithout limitation, all plans, drawings, specifications or models prepared in
\nconnection with any Restoration or Capital Improvement, shall become the sole
\nand absolute property of Landlord upon the Expiration Date. Tenant shall
\ndeliver all such documents to Landlord promptly upon the Expiration Date.
\nTenant shall also deliver one copy of each thereof to Landlord within a
\nreasonable time after Tenant receives the same. Tenant’s obligation under
\nthis SECTION 42.13 shall survive the Expiration Date.<\/p>\n
SECTION 42.14. All references in this Lease to “licensed
\nprofessional engineer” or “registered architect” shall mean a professional
\nengineer or architect who is licensed or registered, as the case may be, by
\nthe State of Florida.<\/p>\n
SECTION 42.15. This Lease shall not be construed to create a
\npartnership, joint venture, agency relationship or fiduciary relationship of
\nany kind between the parties.<\/p>\n
SECTION 42.16. THE PARTIES SHALL AND DO HEREBY EACH IRREVOCABLY
\nWAIVE TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN
\nCONNECTION WITH THIS LEASE OR THE INTERPRETATION, CONSTRUCTION OR ENFORCEMENT
\nHEREOF OR OF ANY PROVISION HEREOF.<\/p>\n
SECTION 42.17. Tenant shall not sell, lease or otherwise transfer or
\ndispose of, or permit any Person to use, any excess or residual development
\ncapability of, or any other entitlement or development rights pertaining or
\nrelating to, the Land, nor shall Tenant contract or agree to do any of the
\nforegoing.<\/p>\n
SECTION 42.18. Upon the expiration or other termination of this
\nLease, neither party shall have any further obligation or liability to the
\nother except as otherwise expressly provided in this Lease and except for
\nsuch obligations as by their nature or under the circumstances can only be,
\nor by the express provisions of this Lease may or are intended to be,
\nperformed after such expiration or other termination; and, in any event,
\nwithout limiting the generality of the foregoing, (i) unless otherwise
\nexpressly provided in this Lease, any liability for a payment which shall
\nhave accrued in, for, on account of or with respect to any period ending at
\nthe time of expiration or other termination of this Lease shall survive the
\nexpiration or other termination of this Lease and (ii) any right of Landlord
\nto receive payment from Tenant, for or on account of any period after this
\nLease has been terminated because of Tenant’s default hereunder, of either
\ndamages for Tenant’s default or of Rental provided for herein, shall survive
\nsuch termination of this Lease.<\/p>\n
SECTION 42.19. The provisions of this Lease are intended to be for
\nthe sole benefit of the two parties hereto and all Secured Lenders and all of
\ntheir respective successors and assigns, and none of the provisions of this
\nLease are intended to be, nor shall they be construed to be, for the benefit
\nof any third party other than Secured Lenders.<\/p>\n
80<\/p>\n
SECTION 42.20. Notwithstanding that Tenant has various obligations
\nunder this Lease with respect to portions of the Parcels which are not
\nincluded within the Premises, nothing herein shall be interpreted to grant
\nTenant any rights in, to or concerning such Parcels whatsoever except as
\nfollows: (i) as expressly provided in ARTICLE 45 hereof; (ii) such rights of
\nentry as are necessary to enable Tenant to perform its obligations hereunder;
\nand (iii) Tenant shall have (1) the nonexclusive easement granted in the
\npenultimate paragraph of ARTICLE 2, (2) access to the Premises over such
\nportion of Parcel D as Landlord and Tenant may hereafter designate in
\nwriting, and (3) a nonexclusive right to use whatever walking trail on the
\nParcels that Landlord may from time to time make available for the use of any
\ntenants or users of the Parcels. Notwithstanding the foregoing, Landlord
\nreserves the right to relocate such parking areas, access and walking trails
\nto other locations on the Parcels provided Tenant at all times has
\nsubstantially equivalent parking rights, access and walking trails as it had
\non the Commencement Date.<\/p>\n
ARTICLE 43
\n LIMITATION OF LIABILITY<\/p>\n
Tenant shall look only to Landlord’s Affected Property for the
\ncollection of any money judgment in the event of, and on account of, any
\nbreach or default under this Lease by Landlord. (For purposes hereof,
\n“LANDLORD’S AFFECTED PROPERTY” means Landlord’s respective interests in and
\nto this Lease, the Premises, and such of the other Parcels, if any, as to
\nwhich Tenant then either is the lessee under this Lease or holds a valid,
\neffective, exercisable Expansion Option pursuant to the provisions of ARTICLE
\n45 hereof.) No other property or assets of Landlord, and no property or
\nassets of any kind of any partner in Landlord or any direct or indirect owner
\nof an interest in Landlord or any officer, director, partner, principal or
\nemployee of Landlord (each a “PROTECTED PERSON”) shall be subject to levy,
\nattachment, garnishment, execution or other enforcement procedure for the
\nsatisfaction of any such judgment (or other judicial process) nor shall any
\nrecourse of any kind whatsoever be sought or obtained directly or indirectly
\nunder, for or on account of this Lease, any breach or default by Landlord
\nhereunder, or any other matter relating to the Premises, this Lease, the
\nrelationship between Landlord and Tenant, the acts or omissions of Landlord,
\nor any other similar or related matter. The interest of Landlord in and to
\nthe Landlord’s Affected Property shall consist (when and to the extent the
\nsame are held by Landlord) of Landlord’s estate in Landlord’s Affected
\nProperty and Landlord’s interest in and to the rents, income, proceeds,
\nreceipts, revenues, issues and profits issuing from the Landlord’s Affected
\nProperty then held by Landlord, any insurance policies with respect to
\nLandlord’s Affected Property carried under this Lease and the premiums or
\nproceeds thereof, any money or securities deposited by Tenant with Landlord,
\nany award to which Landlord may be entitled in any condemnation proceedings
\nor by reason of a temporary taking of the Landlord’s Affected Property, and
\nany real estate tax refunds accrued to Landlord. In confirmation of the
\nforegoing, if Tenant shall acquire a lien on or interest of any kind in any
\nother property or assets of Landlord, or any property or assets of any kind
\nof any Protected Person, directly or indirectly as a result of, on account of
\nor with respect to a breach or default under this Lease by Landlord, by
\njudgment or otherwise, Tenant shall promptly release such lien or interest by
\nexecuting and delivering an instrument in recordable form to that effect
\nprepared by Landlord or such Protected Person; provided, however, that such
\ninstrument of release shall not release any such lien on <\/p>\n
81<\/p>\n
Landlord’s interest in and to the Premises. This limitation of Landlord’s
\nliability shall not apply to the extent (if any) that Landlord misapplies
\ninsurance or condemnation proceeds in a manner other than as required by the
\nLease or Landlord misappropriates any monies or securities deposited by
\nTenant with Landlord; in such event, Tenant shall have full recourse against
\nLandlord for the moneys or securities so misapplied or misappropriated
\nwithout regard to the foregoing provisions of this Article. Nothing in this
\nARTICLE 43 hereof shall be interpreted as prohibiting Tenant from being
\nawarded specific performance or an injunction (i) to enjoin any breach or
\ndefault under this Lease by Landlord, (ii) to prohibit Landlord from
\ndistributing to its partners at any time that Landlord is in default under
\nthis Lease the rents, receipts, revenues, issues and profits from the
\nLandlord’s Affected Property or the Parcels, or (iii) to compel the proper
\napplication of insurance and condemnation proceeds in accordance with the
\nexpress provisions of this Lease.<\/p>\n
ARTICLE 44
\n SUCCESSORS AND ASSIGNS<\/p>\n
Except as otherwise expressly provided in this Lease, the provisions
\nof this Lease shall bind and benefit the respective successors and assigns of
\nthe parties hereto with the same effect as if mentioned in each instance
\nwhere a party is named or referred to; provided, however, that the provisions
\nof this ARTICLE 44 shall not be construed as modifying the provisions of
\nARTICLE 10 or the conditions or limitations contained in ARTICLE 24.<\/p>\n
ARTICLE 45
\n EXPANSION OPTIONS<\/p>\n
SECTION 45.1. FIRST PARCEL B EXPANSION OPTION.<\/p>\n
(1) EXERCISE. Subject to the provisions of SECTION 10.11,
\nLandlord hereby grants to Tenant an option (the “FIRST PARCEL B EXPANSION
\nOPTION”) to cause this Lease to be amended so as to (i) obligate Landlord to
\nconstruct on either or both of Parcels B and D an addition (the “FIRST PARCEL
\nB ADDITION”) to the Initial Building located on Parcel A and (ii) for all
\npurposes of this Lease, add to and include within the definition of the
\n“Premises” such First Parcel B Addition, add to and include within the
\ndefinition of the “Land” both of Parcels B and D, and cause the First Parcel
\nB Addition to be deemed to be within the definition of a “Building”, all on
\nand subject to the terms and conditions set forth in this ARTICLE 45. The
\nFirst Parcel B Expansion Option shall be exercisable only during the first
\nseven years of the Term of this Lease (the “FIRST PARCEL B EXPANSION OPTION
\nPERIOD”); if not duly exercised within that period, the First Parcel B
\nExpansion Option shall irrevocably and completely lapse, expire, terminate
\nand be of no effect. Tenant shall exercise the First Parcel B Expansion
\nOption, if at all, by delivering to Landlord within the First Parcel B
\nExpansion Option Period a written notice (the “FIRST PARCEL B EXPANSION
\nNOTICE”) stating that Tenant is thereby unconditionally exercising the First
\nParcel B Expansion Option. Tenant’s failure for any reason whatsoever,
\nwhether or not within Tenant’s control, to timely deliver the First Parcel B
\nExpansion Option Notice to Landlord within the First Parcel B Expansion
\nOption Period shall constitute Tenant’s irrevocable election not to exercise
\nthe First Parcel B Expansion Option and <\/p>\n
82<\/p>\n
its irrevocable waiver and release thereof, and shall automatically and
\nwithout any notice or any grace or cure period result in the permanent and
\ncomplete expiration, lapsing and termination of such Option.<\/p>\n
(2) (a) TERM. If Tenant duly and timely exercises the First
\nParcel B Expansion Option and said Option is not terminated pursuant to the
\nExpansion Space Improvement Agreement applicable thereto or SECTION 45.7
\nhereof, the Term of this Lease with respect to the First Parcel B Addition
\nand Parcels B and D shall commence on the date of substantial completion (as
\ndefined in such Expansion Space Improvement Agreement) of the First Parcel B
\nAddition and shall end on the date (which may not be less than ten years or
\nmore than twenty years after the commencement of the Term of this Lease as to
\nsuch First Parcel B Addition) specified by Tenant in the First Parcel B
\nExpansion Notice.<\/p>\n
(b) RENT. In addition to all other Rental payable by
\nTenant under this Lease, Tenant shall pay Landlord, as Fixed Rent for the
\nFirst Parcel B Addition (the “FIRST PARCEL B EXPANSION FIXED RENT”), an
\namount per annum equal to the Formula Annual Rent (hereinafter defined) for
\nthe First Parcel B Addition, such Fixed Rent to be paid monthly (and prorated
\nfor partial months), in twelve equal monthly installments, on the same day of
\neach month as Fixed Rent for Parcel A and the Initial Building is paid under
\nARTICLE 3 of this Lease. If the First Parcel B Expansion Option is timely and
\nduly exercised, no fixed rent (other than the First Parcel B Expansion Fixed
\nRent) will be payable for or with respect to the land component of Parcels B
\nand D.<\/p>\n
(3) EXPANSION SPACE. The First Parcel B Expansion Space
\nNotice shall specify the size and character of the First Parcel B Addition
\nthat Tenant desires to be constructed by Landlord pursuant to such Option and
\nshall set forth Tenant’s desired date (the “ESTIMATED FIRST PARCEL B
\nCOMPLETION DATE”) for the completion of such Addition, which shall not be
\nless than 365 days or more than 640 days after the date on which the
\nExpansion Amendment relating to the First Parcel B Addition is fully executed
\nand delivered by Tenant and Landlord. In no event shall the floor area of the
\nFirst Parcel B Addition be less than 100,000 Rentable Square Feet or more
\nthan the lesser of (i) 300,000 Rentable Square Feet and (ii) the maximum
\npermissible floor area for all improvements situated on Parcel B under
\nthen-applicable legal, code, CC&R, and other requirements, in light of the
\ndevelopment rights allocable to Parcel B which are then held by Landlord).<\/p>\n
SECTION 45.2. SECOND PARCEL B EXPANSION OPTION.<\/p>\n
(1) EXERCISE. Subject to the provisions of SECTION 10.11,
\nLandlord hereby grants to Tenant an option (the “SECOND PARCEL B EXPANSION
\nOPTION”) to cause this Lease to be amended so as to (i) obligate Landlord to
\nconstruct on either or both of Parcels B and D an addition (the “SECOND
\nPARCEL B ADDITION”) to the Initial Building located on Parcel A or to the
\nFirst Parcel B Addition (if such Addition shall then exist) and (ii) for all
\npurposes of this Lease, add to and include within the definition of the
\n“Premises” such Second Parcel B Addition, add to and include within the
\ndefinition of the “Land” both of Parcels B and D (unless such Parcels had
\npreviously been leased to Tenant <\/p>\n
83<\/p>\n
hereunder pursuant to Tenant’s exercise of the First Parcel B Expansion
\nOption), and cause the Second Parcel B Addition to be deemed to be within the
\ndefinition of a “Building”, all on and subject to the terms and conditions
\nset forth in this ARTICLE 45 and subject to the additional condition set out
\nin the following sentence. Anything in this Lease to the contrary
\nnotwithstanding, Tenant shall not have, and may not exercise, the Second
\nParcel B Expansion Option unless either (a) Tenant shall have previously duly
\nexercised the First Parcel B Expansion Option and leased the First Parcel B
\nAddition or (b) Tenant shall have paid to Landlord on the first day (without
\nany extensions, notices or grace periods except as expressly provided in
\nSECTION 45.13) of the Second Parcel B Expansion Period and also on the first
\nday of each succeeding 12-month period within the Second Parcel B Expansion
\nPeriod (without any extensions, notices or grace periods) the sum of Ninety
\nThousand Dollars ($90,000.00) in cash. Subject to the preceding sentence,
\nTenant may exercise the Second Parcel B Expansion Option during the period
\n(the “SECOND PARCEL B EXPANSION OPTION PERIOD”) beginning on the first day of
\nthe eighth Lease Year and ending on the last day of the twentieth Lease Year
\n(i.e., the Initial Expiration Date). Tenant shall exercise the Second Parcel
\nB Expansion Option, if at all, by delivering to Landlord within the Second
\nParcel B Expansion Option Period a written notice (the “SECOND PARCEL B
\nEXPANSION NOTICE”) stating that Tenant is thereby unconditionally exercising
\nthe Second Parcel B Expansion Option. Tenant’s failure for any reason
\nwhatsoever, whether or not within Tenant’s control, to timely deliver the
\nSecond Parcel B Expansion Option Notice to Landlord within the Second Parcel
\nB Expansion Option Period shall constitute Tenant’s irrevocable election not
\nto exercise the Second Parcel B Expansion Option and its irrevoca ble waiver
\nand release thereof, and shall automatically and without any notice or any
\ngrace or cure period result in the permanent and complete expiration, lapsing
\nand termination of such Option. If Tenant has not duly exercised the First
\nParcel B Expansion Option, then failure to pay the required $90,000.00 sum on
\nthe first day of any Lease Year within the Second Parcel B Expansion Option
\nPeriod (without any extensions, notices or grace periods except as is
\nexpressly provided, with respect to the first of such payments only, in
\nSECTION 45.13 hereinbelow) shall result in an automatic, immediate and
\npermanent lapse and termination of the Second Parcel B Expansion Option (but
\nsuch lapse and termination shall not, by itself, terminate, diminish or
\naffect in any way Tenant’s obliga tion to pay all Impositions for or relating
\nto Parcel B unless and until the conditions precedent to the termination of
\nsuch obligations, as set out elsewhere in this Lease, shall have occurred and
\nbeen satisfied).<\/p>\n
(2) (a) TERM. If Tenant duly and timely exercises the
\nSecond Parcel B Expansion Option and said Option is not terminated pursuant
\nto the Expansion Space Improvement Agreement applicable thereto or SECTION
\n45.7 hereof, the Term of this Lease with respect to the Second Parcel B
\nAddition and (if applicable) Parcels B and D shall commence on the date of
\nsubstantial completion (as defined in such Expansion Space Improvement
\nAgreement) of the Second Parcel B Addition and shall end on the date (which
\nmay not be less than ten years or more than 20 years after the commencement
\nof the Term of this Lease as to such Second Parcel B Addition) specified by
\nTenant in the Second Parcel B Expansion Notice.<\/p>\n
(b) RENT. In addition to all other Rental payable by
\nTenant under this Lease, Tenant shall pay Landlord, as Fixed Rent for the
\nSecond Parcel B Addition (the “SECOND PARCEL B EXPANSION FIXED RENT”), an
\namount per annum determined as follows: If Tenant duly exercises <\/p>\n
84<\/p>\n
the Second Parcel B Expansion Option after having leased the First Parcel B
\nAddition, the annual Second Parcel B Expansion Fixed Rent shall be an amount
\nequal to the Formula Annual Rent for the Second Parcel B Addition; and, if
\nTenant duly exercises the Second Parcel B Expansion Option without first
\nhaving leased the First Parcel B Addition, then the annual Second Parcel B
\nExpansion Fixed Rent shall be an amount equal to the sum of $90,000.00 (which
\nshall be the portion of the annual Second Parcel B Expansion Fixed Rent
\nallocable to the land component of Parcels B and D so leased to Tenant) plus
\nthe Formula Annual Rent for such Second Parcel B Addition (which shall be the
\nportion of the annual Second Parcel B Expansion Fixed Rent allocable to the
\nBuilding and any other Improvements – but not the land component – of the
\nParcels B and D property so leased to Tenant). Second Parcel B Expansion
\nFixed Rent shall be paid monthly (and prorated for partial months), in twelve
\nequal monthly installments, on the same day of each month as Fixed Rent for
\nParcel A and the Initial Building is paid under ARTICLE 3 of this Lease.<\/p>\n
(3) EXPANSION SPACE. The Second Parcel B Expansion Notice
\nshall specify the size and character of the Second Parcel B Addition that
\nTenant desires to be constructed by Landlord pursuant to such Option and
\nshall set forth Tenant’s desired date (the “ESTIMATED SECOND PARCEL B
\nCOMPLETION DATE”) for the completion of such Addition, which shall not be
\nless than 365 days or more than 640 days after the date on which the
\nExpansion Amendment relating to the Second Parcel B Addition is fully
\nexecuted and delivered by Tenant and Landlord. In no event shall the Second
\nParcel B Addition have a floor area (i) less than 100,000 Rentable Square
\nFeet or (ii) greater than the Maximum Allowable Parcel B-2 Floor Area. For
\npurposes hereof, “MAXIMUM ALLOWABLE PARCEL B-2 FLOOR AREA” means the area,
\nmeasured by and expressed in terms of Rentable Square Feet, by which (i) the
\ngreater of (A) 300,000 Rentable Square Feet or (B) the maximum permissible
\nfloor area for all improvements situated on Parcel B under then-applicable
\nlegal, code, CC&R, and other requirements, in light of the development rights
\nallocable to Parcel B which are then held by Landlord, exceeds (ii) the floor
\narea of the First Parcel B Addition (if the First Parcel B Expansion Option
\nhad not been exercised prior to the exercise of the Second Parcel B Expansion
\nOption, then zero shall be substituted in item (ii) of the foregoing formula).<\/p>\n
SECTION 45.3. OFFICE FACILITY OPTION.<\/p>\n
(1) EXERCISE. Subject to the provisions of SECTION 10.11,
\nLandlord hereby grants to Tenant an option (the “OFFICE FACILITY OPTION”) to
\ncause this Lease to be amended so as to (i) obligate Landlord to construct on
\nParcel C an addition (the “OFFICE FACILITY ADDITION”) to the then-existing
\nimprovements located on any one or more of Parcels A, B and D and (ii) for
\nall purposes of this Lease, add to and include within the definition of the
\n“Premises” such Office Facility Addition, add to and include within the
\ndefinition of the “Land” the land comprising Parcel C, and cause the Office
\nFacility Addition to be deemed to be within the definition of a “Building”,
\nall on and subject to the terms and conditions set forth in this ARTICLE 45.
\nThe Office Facility Option shall be exercisable only (a) during the first
\nseven years of the Term of this Lease (the “FIRST OFFICE FACILITY OPTION
\nPERIOD”), or (b) during the period (the “SECOND OFFICE FACILITY OPTION
\nPERIOD”) beginning on the first day of the eighth Lease Year and ending on
\nthe last day of the twentieth Lease Year if Tenant pays to Landlord the sum
\nof $30,000.00 in cash on the first day (without any notices, <\/p>\n
85<\/p>\n
extensions or grace periods except as expressly provided in SECTION 45.13) of
\nthe eighth Lease Year and on the first day (without any notice, extensions or
\ngrace periods) of each Lease Year thereafter until exercise of the option.
\nTenant shall exercise the Office Facility Option, if at all, by delivering to
\nLandlord within the First Office Facility Option Period (or, if this Option
\nshall not theretofore have lapsed or terminated, the Second Office Facility
\nOption Period) a written notice (the “OFFICE FACILITY NOTICE”) stating that
\nTenant is thereby unconditionally exercising the Office Facility Option.
\nTenant’s failure for any reason whatsoever, whether or not within Tenant’s
\ncontrol, to timely deliver the Office Facility Notice to Landlord within the
\nFirst Office Facility Option Period or, if all of the annual $30,000.00
\npayments required to activate and continue the effectiveness of the Office
\nFacility Option have been timely paid, within the Second Office Facility
\nOption Period, shall constitute Tenant’s irrevocable election not to exercise
\nthe Office Facility Option and its irrevocable waiver and release thereof,
\nand shall automatically and without any grace or cure period result in the
\npermanent and complete expiration, lapsing and termination of such Option.
\nTenant’s failure to pay the required $30,000.00 sum on the first day of any
\nLease Year (without any extensions, notices or grace periods except as is
\nexpressly provided, with respect to the first of such payments only, in
\nSECTION 45.13 hereinbelow) within the Second Office Facility Option Period
\nshall result in an automatic, immediate and permanent lapse and termination
\nof the Office Facility Option (but such lapse and termination shall not, by
\nitself, terminate, diminish or affect in any way Tenant’s obligation to pay
\nall Impositions for or relating to Parcel C unless and until the conditions
\nprecedent to the termination of such obligations, as set out elsewhere in
\nthis Lease, shall have occurred and been satisfied).<\/p>\n
(2) (a) TERM. If Tenant duly and timely exercises the
\nOffice Facility Option and said Option is not terminated pursuant to the
\nExpansion Space Improvement Agreement applicable thereto or SECTION 45.7
\nhereof, the Term of this Lease with respect to the Office Facility Addition
\nand Parcel C shall commence on the date of substantial completion (as defined
\nin such Expansion Space Improvement Agreement) of the Office Facility
\nAddition and shall end on the date (which may not be less than ten or more
\nthan twenty years after the commencement of the Term of this Lease as to such
\nOffice Facility Addition) specified by Tenant in the Office Facility Notice.<\/p>\n
(b) RENT. In addition to all other Rental payable by
\nTenant under this Lease, Tenant shall pay Landlord, as Fixed Rent for the
\nOffice Facility Addition (the “OFFICE FACILITY FIXED RENT”), an amount per
\nannum determined as follows: If Tenant duly exercises the Office Facility
\nOption during the First Office Facility Option Period, the annual Office
\nFacility Fixed Rent shall be an amount equal to the Formula Annual Rent for
\nthe Office Facility Addition, and if the Office Facility Option is exercised
\nduring the Second Office Facility Option Period, then the annual Office
\nFacility Fixed Rent shall be an amount equal to the sum of $30,000.00 (which
\nshall be the portion of the annual Office Facility Fixed Rent allocable to
\nthe land component of the Parcel C property so leased to Tenant) plus the
\nFormula Annual Rent for such Office Facility Addition (which shall be the
\nportion of the annual Office Facility Fixed Rent allocable to the Building
\nand any other Improvements – but not to the land component – of the Parcel C
\nproperty so leased to Tenant). Office Facility Fixed Rent shall be paid
\nmonthly (and prorated for partial months), in twelve equal monthly
\ninstallments, on the same day of each month as Fixed Rent for Parcel A and
\nthe Initial Building is paid under Article 3 of this Lease.<\/p>\n
86<\/p>\n
(3) EXPANSION SPACE. The Office Facility Expansion Notice
\nshall specify the size and character of the Office Facility Addition that
\nTenant desires to be constructed by Landlord pursuant to such Option and
\nshall set forth Tenant’s desired date (the “ESTIMATED OFFICE FACILITY
\nCOMPLETION DATE”) for the completion of such Addition, which shall not be
\nless than 365 days or more than 640 days after the date on which the
\nExpansion Amendment relating to the Office Facility Addition is fully
\nexecuted and delivered by Tenant and Landlord. In no event shall the Office
\nFacility Addition have a total floor area less than 75,000 Rentable Square
\nFeet or more than the maximum allocable floor area therefor under applicable
\nprovisions of law, CC&R’s and other requirements in light of the development
\nrights allocable to Parcel C which are then held by Landlord.<\/p>\n
SECTION 45.4. EXERCISE IRREVOCABLE. The delivery of any Expansion
\nNotice under any provision of this ARTICLE 45 shall constitute Tenant’s
\nirrevocable, binding commitment to amend this Lease to provide that Tenant
\nleases the Addition described therein together with the land upon which
\nAddition is to be located (a) for the term, for the annual Fixed Rent, and
\nupon such other terms and conditions, as are provided in the applicable
\nprovision of this ARTICLE 45 and (b) upon all of the terms and provisions of
\nthis Lease which apply to any other portion of the Premises (other than the
\nprovisions that set the amount of Fixed Rent, and the Expiration Date, for
\nParcel A and the Initial Building); provided, however, that Tenant may
\nwithdraw and revoke any such Expansion Notice if Tenant delivers to Landlord,
\nbefore the time Landlord has commenced any construction (including, without
\nlimitation, any site work or excavation) of any Improvements of any kind in
\nresponse to such Expansion Notice, both (i) a written notice (an “OPTION
\nREVOCATION NOTICE”), satisfactory in form and substance to Landlord (acting
\nreasonably), in which Tenant clearly, irrevocably and unconditionally (A)
\nwithdraws and revokes the Expansion Notice, (B) releases, waives,
\nrelinquishes and terminates any and all rights of Tenant (including, without
\nlimitation, any and all rights to any future, further or additional exercise
\nof such Option) to, under or concerning the Option to which such Expansion
\nNotice related, and (C) agrees to pay and reimburse to Landlord on demand all
\namounts, costs, expenses, losses (but not the loss of profits or gains
\nLandlord anticipated earning from the expansion), and liabilities of any and
\nevery kind whatsoever (including, without limitation, reasonable compensation
\nto Landlord for the time, effort and work expended by its officers and
\nemployees, and also including all fees, expenses, contract amounts, damages
\nand other amounts paid or payable to any architects, appraisers, consultants,
\nengineers, contractors, attorneys, accountants, Governmental Authorities, or
\nothers) which Landlord may pay or incur or become liable for, or may have
\npaid or incurred or become liable for, directly or indirectly for or in
\nconnection with such Expansion Notice or Landlord’s response thereto (and
\nTenant’s obligations and liabilities under and with respect to, and as
\nprovided for in, any such Option Revocation Notice shall constitute
\nobligations of Tenant to Landlord under this Lease, and also “Obligations”
\nguarantied by Guarantor under the Guaranty), and (ii) payment to Landlord of
\nan amount in cash (which may be in the form of a certified check or bank
\ncashier’s check payable to Landlord), or delivery to Landlord of an
\nirrevocable letter of credit issued to Landlord by an issuer satisfactory to
\nLandlord and being in form and substance satisfactory to Landlord, in such
\namount as Landlord in its sole discretion may determine is a reasonable
\nestimate of the maximum total costs and amounts for which Tenant may be or
\nbecome obligated to pay Landlord pursuant to Tenant’s undertaking in such
\nOption Revocation <\/p>\n
87<\/p>\n
Notice, as an advance security deposit on account of Tenant’s obligations
\nunder such Option Revocation Notice. (Landlord will refund to Tenant the
\namount, if any, by which such security deposit [if made in the form of cash]
\nexceeds the total amount owed by Tenant with respect thereto, promptly after
\nLandlord determines such total amount.)<\/p>\n
SECTION 45.5. AMENDMENT. Upon Landlord’s timely receipt of any
\nExpansion Notice, this Lease shall be deemed automatically amended to
\nprovide, subject to SECTION 45.7 and any applicable provisions of the
\nExpansion Space Improvement Agreement, for the construction and leasing of
\nthe applicable Addition as provided hereinabove. Upon determination of the
\nannual Fixed Rent, term, specific land area to be added to the Premises, and
\nfloor area and general description of the Building to be constructed thereon,
\nthe parties will execute and deliver a written amendment (an “EXPANSION
\nAMENDMENT”) to this Lease, setting forth the term, rental and Premises for
\nthe applicable Addition. If an Expansion Amendment has not been signed and
\ndelivered within six months (without notices, extensions or grace periods) of
\ndelivery of the Expansion Notice to which it relates, the related Expansion
\nOption shall automatically and permanently terminate and be void for all
\npurposes, and if such failure to sign and deliver the Expansion Amendment
\nresults from a wrongful act or refusal to act by Tenant, Tenant will
\nreimburse Landlord for all costs and expenses of Landlord incurred as a
\nresult of or in response to Tenant’s Expansion Notice on the same basis as
\nwould have applied had Tenant revoked its exercise of such Option pursuant to
\nan Option Revocation Notice.<\/p>\n
SECTION 45.6. Omitted.<\/p>\n
SECTION 45.7. CONDITIONS PRECEDENT. Tenant’s rights, and Landlord’s
\nobligations, under and with respect to each and every Expansion Option shall
\nbe subject to the satisfaction of all of the following conditions precedent
\n(in addition to any other conditions set out elsewhere in this Lease):<\/p>\n
(1) APPROVALS AND PERMITS. Landlord shall have received all
\napprovals, licenses and permits from the City of Jacksonville and all other
\napplicable or relevant Governmental Authorities necessary to permit the
\nconstruction of the applicable Addition (collectively, “APPROVALS”), in each
\ncase by such date as is necessary, without employing overtime work or other
\nexigent or extraordinary means, to enable construction of the relevant
\nAddition to be properly completed by the applicable Estimated Completion
\nDate. In connection with the above, Landlord’s obligation shall be limited to
\nmaking a reasonable and customary good faith effort to obtain the Approvals
\nbut shall not include any obligation to pay fees or to accept or agree to
\nexactions or conditions to the Approvals which in Landlord’s sole judgment
\nare unreasonable in light of the nature of the particular project or the
\nApprovals sought. Any failure of Landlord to obtain the Approvals shall not
\nconstitute a default under this Lease. Tenant hereby irrevocably waives, and
\nreleases Landlord from, all liability for all damages and costs (including,
\nwithout limitation, attorneys fees, expert witness fees and costs, and
\nrelated expenses) which may be suffered, paid or incurred by Tenant as a
\nresult of Landlord’s obtaining or failing to obtain the Approvals for any
\nreason except Landlord’s intentional, unreasonable and unexcused refusal to
\nfile and process an application therefor.<\/p>\n
88<\/p>\n
(2) LENDER APPROVALS. Landlord shall, by such date as is
\nnecessary, without employing overtime work or other exigent or extraordinary
\nmeans, to enable construction of the relevant Addition to be properly
\ncompleted by the applicable Estimated Completion Date, have sought and
\nobtained a Secured Loan to serve as a source of construction financing for
\nthe construction of the Addition, on such terms and conditions as are
\nacceptable to Landlord in its sole and absolute discretion. Landlord agrees
\nthat, in connection with its efforts to obtain such construction financing:
\n(i) Landlord shall offer, and be willing, to subject its interest in the
\nAddition, the land on which it is to be constructed, and this Lease (as it
\napplies to such land and Addition) to the liens and security interests of
\nsuch construction lender (subject to any prior rights or interests therein or
\nthereto, and any rights of consent or approval, of any Secured Lender); and
\n(ii) if the only reason Landlord is unable to obtain from third party sources
\nsuitable construction financing acceptable to Landlord is that the proposed
\nconstruction lender requires that it be provided with one or more guaranties
\nof any kind (whether guaranties of payment, of completion, of carry costs, or
\notherwise; collectively, “LENDER-REQUIRED GUARANTIES”), Lender shall so
\nnotify Tenant and give Tenant a reasonable opportunity (but no longer than 15
\ndays after such notice from Landlord to Tenant) to provide to such
\nprospective construction lender, at Tenant’s sole cost and liability (and at
\nno cost or liability to Landlord), all of such Lender-Required Guaranties
\n(which may be guaranties from Tenant, from Guarantor, from any other
\nAffiliate of either of them, or any other Person) that would satisfy the
\nproposed construction lender and cause it to be willing to provide
\nconstruction financing to Landlord on terms and conditions acceptable to
\nLandlord, and if Tenant for any reason refuses or fails to provide such
\nLender-Required Guaranties within the time period so provided therefor by
\nLandlord, this condition precedent set out in this SUBSECTION (2) shall be
\ndeemed unsatisfied and Landlord shall have no obligation of any kind with
\nrespect to such Expansion Option, but if there are reasons for Landlord’s
\ninability to obtain acceptable construction financing other than or in
\naddition to a requirement for Lender-Required Guaranties, Landlord shall so
\nnotify Tenant, in which case Tenant shall have 30 days from its receipt of
\nsuch notice to deliver to Landlord a written notice (a “LAND EXERCISE
\nNOTICE”) in which Tenant clearly, irrevocably and unconditionally (i)
\nmodifies its Exercise Notice so as to provide for Tenant’s leasing from
\nLandlord hereunder only the land component of the Parcel or Parcels on which
\nthe Addition that was the subject of such Exercise Notice would have been
\nconstructed, for an annual Fixed Rent of $90,000.00 per year (in the case of
\neither Parcel B Addition) or $30,000.00 per year (in the case of the Office
\nFacility Addition) if such Option was exercised after the seventh Lease Year
\n(the Fixed Rent shall be $1.00 per year for the land component of any Parcel
\nas to which such Option was exercised before the end of the seventh Lease
\nYear), and forever releases Landlord from any and all obligations of any and
\nevery kind whatsoever with respect to such Option other than to lease to
\nTenant such land on the terms and conditions set out herein, (ii) promises
\npromptly to commence, and diligently to prosecute and complete, the
\nconstruction of the Addition which had been the subject of such Exercise
\nNotice, lien-free and in accordance with all CC&R’s, all applicable laws,
\ncodes and ordinances, and all provisions of this Lease, all at Tenant’s sole
\ncost, liability and risk, and (iii) promises to pay to Landlord, as
\ncompensation for remaining ready and willing to perform its obligations
\nconcerning such Option and for any work, activities, time or effort it may
\ntheretofore have expended in connection with such Exercise Notice, an amount
\nin cash (the “LANDLORD COMPENSATION AMOUNT”) equal to five percent (5%) of
\nthe Total Construction Cost for such Addition (and to <\/p>\n
89<\/p>\n
certify the amount of such Total Construction Cost under oath to Landlord,
\nand to allow Landlord to inspect, copy and audit Tenant’s books and records
\nrelating thereto), such amount to be paid to Landlord in five substantially
\nequal annual installments as follows: together with Tenant’s delivery to
\nLandlord of the Land Exercise Notice, Tenant shall pay Landlord an amount in
\ncash equal to 20% of the amount Tenant estimates in good faith will equal the
\ntotal Landlord Compensation Amount for such Addition; and, on each of the
\nnext four anniversaries of that date, Tenant shall pay Landlord an amount
\nequal to one-fourth (1\/4) of the amount by which the total Landlord
\nCompensation Amount for such Addition exceeds the amount Tenant paid Landlord
\non account thereof when Tenant delivered its Land Exercise Notice relating
\nthereto. All of Tenant’s obligations, undertakings and liabilities under and
\nwith respect to, and as provided for in, any such Land Exercise Notice shall
\nconstitute obligations of Tenant to Landlord under this Lease, and also
\n“Obligations” guarantied by Guarantor under the Guaranty. If Tenant fails for
\nany reason whatsoever to deliver such a Land Exercise Notice to Landlord
\nwithin such 30-day period, the condition precedent set out in this SUBSECTION
\n(2) shall be deemed unsatisfied and Landlord shall not have any obligation or
\nliability of any kind (including, without limitation, any obligation to lease
\nsuch land to Tenant or to construct such Addition) with respect to such
\nExpansion Option.<\/p>\n
(3) NO NON-CONFORMING ASSIGNMENT. There shall not have
\noccurred (whether voluntarily, by operation of law, pursuant to court order
\nor judicial sale, or otherwise) any sale, assignment, sublease, transfer or
\ndisposition of any kind whatsoever of any or all of Tenant’s rights of
\npossession of the Premises or interests in, to or under the Lease that did
\nnot conform to the applicable conditions and requirements of this Lease.<\/p>\n
(4) NO TENANT DEFAULT.<\/p>\n
(a) Tenant shall have no right to exercise any
\n Expansion Option at the following times or during the following periods
\n (and the period within which Tenant is allowed to exercise such Options
\n shall not be tolled or extended during such periods or on account
\n thereof): (i) during the time commencing from the date Landlord gives
\n to Tenant a notice of Default under the Lease and continuing until the
\n Default alleged in said notice is fully cured; (ii) during the period
\n of time commencing on the first day following the day any payment or
\n sum of money first becomes due or payable to Landlord from Tenant and
\n is unpaid (and regardless of whether Landlord gave any notice thereof
\n to Tenant or whether any such notice is required before such nonpayment
\n can ripen into an Event of Default) and continuing until the entire
\n amount (together with any late charge or other amount payable thereon
\n or in connection therewith) is paid in full; (iii) at any time after
\n an Event of Default first occurs and at any time when an Event of
\n Default exists (and regardless of whether Landlord gave any notice
\n thereof to Tenant) until fully and properly cured; and (iv) at any
\n time within the 24-month period following the occurrence of the later
\n of two or more Events of Default which occurred within any consecutive
\n 12-month period (even if all of such Events of Default have been
\n cured).<\/p>\n
90<\/p>\n
(b) All rights of Tenant under this SECTION 45 shall
\n terminate at Landlord’s election (in Landlord’s sole, exclusive and
\n unreviewable discretion) expressed in a notice of such termination
\n given by Landlord to Tenant, and be of no further force and effect,
\n notwithstanding Tenant’s due and timely exercise thereof, if, after
\n Tenant’s delivery of any Expansion Notice and prior to the commencement
\n date of the Term as applicable to the relevant Addition as set out in
\n the Expansion Amendment relating thereto, either (i) an Event of
\n Default shall have occurred and shall then remain uncured, or (ii)
\n Landlord shall have given to Tenant two or more notices of material
\n Defaults under the Lease within the immediately preceding 12- month
\n period.<\/p>\n
In the event any of the foregoing conditions is not satisfied or any of the
\nforegoing disqualifications or termination events occurs, then (i) the
\napplicable exercise of the Expansion Option and any related Expansion
\nAmendment or other amendment to this Lease shall be deemed to have been
\nrescinded and withdrawn and shall be void and of no effect, as though the
\nExpansion Option had never been exercised, and (ii) Tenant shall pay to
\nLandlord on demand an amount in cash sufficient fully to compensate and
\nreimburse Landlord for all costs, losses and expenses of any and every kind
\nwhatsoever which were paid or incurred by Landlord prior to such termination
\nin connection with or as a result or consequence of Tenant’s exercise of such
\nOption, which costs shall include but not be limited to the items (if paid or
\nincurred by Landlord) which are described in the definition of Total
\nConstruction Cost and also those items which Tenant would have been obligated
\nto pay Landlord if Tenant had withdrawn or revoked its Exercise Option
\npursuant to SECTION 45.4.<\/p>\n
SECTION 45.8. SUBORDINATION.<\/p>\n
The provisions of this SECTION 45.8 shall govern and control over
\nany inconsistent provisions in this Lease. Under no circumstance whatsoever
\nwill any Secured Lender or its successors or assigns, or any purchaser at a
\nforeclosure or similar sale, be subject to or have any obligation or
\nliability of any kind whatsoever for, concerning or on account of this
\nARTICLE 45 or any Expansion Options except as expressly provided otherwise in
\nthis paragraph. On the occurrence of any Secured Lender Enforcement Event
\n(defined hereinafter), all of Tenant’s rights under this ARTICLE 45, and all
\nof the Options provided for herein, will, to the extent (if any) they apply
\nto any Parcel which is encumbered by a mortgage, deed of trust, lien or
\nsecurity interest held by or in favor of any Secured Lender, automatically be
\nmodified and converted into an option solely to lease the land component of
\nthe Parcel burdened by such Option on and subject to all of the provisions,
\nterms and conditions set out in this ARTICLE 45 and the remainder of this
\nLease, and under no circumstances whatsoever shall Landlord, the Secured
\nLender, any Person purchasing at a foreclosure, trustee’s or other sale, or
\nany successor or assign of any of them, have any obligation of any kind
\nwhatsoever for or with respect to the construction of any Addition or other
\nImprovement on such Parcel. For purposes hereof, “SECURED LENDER ENFORCEMENT
\nEVENT” means and includes, with respect to any Parcel, any one or more of the
\nfollowing: (i) the entry of a judgment of foreclosure, or any other judgment,
\norder or decree having similar effect, with respect to such Parcel, in favor
\nof any Secured Lender, (ii) the sale of such Parcel, by foreclosure or
\ntrustee’s sale pursuant to a power of sale or any similar <\/p>\n
91<\/p>\n
proceeding, for the benefit of any Secured Lender, (iii) the conveyance of
\nsuch Parcel to any Secured Lender or its designee in lieu of foreclosure or
\notherwise on account of any Secured Loan, or (iv) any Secured Lender’s
\nbecoming the assignee, outright and unconditionally (and not solely for
\ncollaterally security purposes) after the occurrence of a default under its
\nSecured Loan, of Landlord’s interest under this Lease with respect to such
\nParcel. After the occurrence of a Secured Lender Enforcement Event with
\nrespect to or affecting any Parcel, Landlord will have no further obligation
\nor liability of any kind for or concerning the construction of any Addition,
\nBuilding or other Improvement on such Parcel. Under no circumstance
\nwhatsoever (including, without limita tion, after such Persons may have
\nsucceeded to Landlord’s interest as lessor under this Lease) will any Secured
\nLender or any of its successors or assigns or any purchaser at a foreclosure
\nor similar sale have any obligation of any kind to construct, or cause to be
\nconstructed, any Addition, Building or other Improvement under or with
\nrespect to this ARTICLE 45 or the exercise of Tenant by any Option. Tenant
\nagrees to execute, acknowledge and deliver to Landlord, for no additional
\nconsideration, within ten (10) days of Landlord’s request therefor, any and
\nall instruments or documents evidencing either such of the agreements,
\nprovisions or undertakings set out in this SECTION 45.8 or such termination
\nof rights which, from time to time, may be deemed necessary or desirable by
\nany such mortgagee or beneficiary.<\/p>\n
SECTION 45.9. CONSTRUCTION. The construction of all Additions
\nconstructed pursuant to the exercise of any Expansion Option will be done in
\naccordance with the provisions of the Expansion Space Improvement Agreement
\nattached as EXHIBIT F.<\/p>\n
SECTION 45.10. CERTAIN DEFINITIONS. (1) “TOTAL CONSTRUCTION COST”
\nshall mean, with respect to any particular Addition constructed or to be
\nconstructed by Landlord in response to and in consequence of Tenant’s
\nexercise of any Expansion Option, an amount (expressed in dollars) equal to
\n110% of the total amount of all costs of any and every kind whatsoever paid
\nor incurred by Landlord to others (and not including Landlord’s own general
\noverhead or administrative costs, but including Landlord’s out-of-pocket
\nexpenses such as travel expenses of Landlord’s partners or employees) for or
\nin connection with the development and construction of the applicable
\nAddition (but not any costs paid or incurred for, or properly allocable to,
\nany other project), including (without limitation) all so-called “hard
\ncosts”, all costs for labor, services, materials and equipment, and all
\nso-called “soft costs” (including, but not limited to, all costs of obtaining
\nApprovals, appraisals, architectural drawings and specifications, soils,
\nengineering and environmental studies and reports, title insurance, and plats
\nof survey, all escrow charges, brokerage commissions, fees and expenses of
\nattorneys and accountants, and all loan fees, interest and other costs of or
\nin connection with construction financing).<\/p>\n
(2) “FORMULA ANNUAL RENT” shall mean, with respect to any
\nparticular Addition constructed or to be constructed by Landlord in response
\nto and in consequence of Tenant’s exercise of any Expansion Option, that
\namount which, if paid annually throughout the entire term of the Lease
\n(without regard to possible extensions or renewals that have not yet become
\nfinal, binding and irrevocable) as applicable to such Addition, in equal
\nmonthly installments on the first day of each month of such term, would be
\nsufficient fully and completely to amortize the Total Construction <\/p>\n
92<\/p>\n
Cost for such Addition and also provide Landlord with a fair market return
\n(in relation to the return then being obtained in new transactions involving
\ninvestments in commercial\/industrial warehouses of 100,000 or more square
\nfeet in the general locality of the metropolitan Jacksonville, Florida area
\n(but extending beyond such area to the extent, if any, necessary or
\nappropriate to find suitable comparables) on its investment in or relating to
\nsuch Addition (but not the cost of the land component thereof).<\/p>\n
SECTION 45.11. ARBITRATION. If the parties fail to agree on the
\namount of the annual Fixed Rent for any Addition within ten (10) days after
\neither party gives notice to the other of its desire to arbitrate the issue,
\nthe issue (i.e., the amount of the annual Fixed Rent for the Addition,
\ndetermined in accordance with the provisions of SECTION 45.10 and (as the
\ncase may be) SECTION 45.1(2)(b), SECTION 45.2(2)(b) or SECTION 45.3(2)(b))
\nshall be submitted to binding arbitration. Unless mutually agreed otherwise
\nby the parties, all arbitrations shall be conducted in Duval County, Florida,
\nas follows: Not later than 15 days after either party has notified the other
\nparty that the issue will be submitted to arbitration, each party will choose
\none arbitrator and will notify the other party of the arbitrator it had
\nselected; if either party fails to designate its arbitrator within that
\nperiod, it will be deemed to have waived its right to select an arbitrator
\nfor that proceeding and the other party’s arbitrator will be the sole
\narbitrator who, individually, will determine the amount of such annual Fixed
\nRent; if each party timely designates an arbitrator, those two arbitrators
\nwill determine the amount of such annual Fixed Rent for such Addition in
\naccordance with the standards set out in, and the provisions of, SECTION
\n45.10 (and (as the case may be) SECTION 45.1(2)(b), SECTION 45.2(2)(b) or
\nSECTION 45.3(2)(b)), but if they are unable to agree on such amount within 30
\ndays after both of them were appointed, then (i) if the amount of the annual
\nFixed Rent as determined by the arbitrator whose amount was the lesser of the
\ntwo, is 95% or more of the amount of the annual Fixed Rent as determined by
\nthe other arbitrator, then the amount of the Fixed Rent shall be the mean
\naverage of the respective amounts thereof as determined by each of the two
\narbitrators, but if the respective amounts of the annual Fixed Rent as
\ndetermined by the two arbitrators are not as described in the preceding
\nclause (i) (I.E., they are more than 5% apart), then (ii) such two
\narbitrators shall select a third arbitrator (and shall notify Landlord and
\nTenant of their selection); such third arbitrator shall, within 30 days after
\nhis appointment as such arbitrator, determine and set the amount of such
\nannual Fixed Rent for such Addition in accordance with the standards set out
\nin, and the provisions of, SECTION 45.10 (and (as the case may be) SECTION
\n45.1(2)(b), SECTION 45.2(2)(b) or SECTION 45.3(2)(b)), and he shall notify
\nboth parties in writing of his determination. Each appraiser designated to
\nparticipate in this arbitration process must be an MAI appraiser who had been
\nactively engaged in commercial real estate activities or appraising of
\ncommercial real estate for at least the preceding five years in the
\nJacksonville, Florida area. Each party shall pay all fees, costs and expenses
\nof the arbitrator it selects and designates; both parties jointly will share
\nequally the fees, costs and expenses of any third arbitrator who is
\ndesignated by the other two parties. The determination of the amount of
\nannual Fixed Rent by the two arbitrators or, if applicable, by the third
\narbitrator, as the case may be, in accordance with this Section shall be
\nfinal, conclusive and binding on the parties.<\/p>\n
93<\/p>\n
SECTION 45.12. At Landlord’s request at any time or from time to
\ntime after the exercise of any of the Options, Tenant will execute and
\ndeliver an instrument prepared by Landlord to serve as a separate lease from
\nLandlord to Tenant of the land and Improvements which are the subject of the
\nexercised Option, and separating and removing such land and Improvements from
\nthis Lease, to facilitate (i) Landlord’s obtaining secured financing with
\nrespect to such Option land and Improvements the security for which is
\nlimited thereto, and (ii) Landlord’s limiting to Parcel A (or any other
\nsingle Parcel) the collateral of any Secured Lender who makes a Secured Loan
\nsecured only by such single Parcel (E.G., so that each such separate lease
\nmay be collaterally assigned to any Secured Lender lending upon the security
\nof such single Parcel), provided that the respective rights and obligations
\nof Landlord and Tenant under each of such separate leases are, with respect
\nto the land and improvements that are the subject matter thereof, identical
\nto those provided for in this Lease.<\/p>\n
SECTION 45.13. At least 90 days prior to the end of the seventh
\nLease Year, Landlord will use reasonable efforts to try to remind Tenant that
\n(i) if the First Parcel B Expansion Option was not theretofore exercised,
\nthen the Second Parcel B Expansion Option will expire and terminate, and (ii)
\nif the Office Facility Option was not theretofore exercised, then it will
\nexpire and terminate, unless Tenant pays to Landlord, by the first day of the
\neighth Lease Year, the requisite payments provided for in this ARTICLE 45.
\nHowever, no failure of Landlord to give any such reminder shall be deemed a
\nLandlord Default, create any right in Tenant, result in any liability of
\nLandlord, or have any other effect of any kind whatsoever, except only that
\nin the event of such a failure by Landlord to give such a reminder to Tenant
\nthe deadline date as of which such Expansion Options will expire and
\nterminate will be extended to the earlier of (i) the fifteenth (15th) day
\nafter the day on which Landlord does give Tenant such a reminder and (ii) the
\nninetieth (90th) day of the eighth Lease Year.<\/p>\n
SECTION 45.14. With respect to any Parcel as to which Tenant then
\nholds an effective, valid, exercisable (and not lapsed or terminated)
\nExpansion Option, Tenant shall have a non-exclusive right, at Tenant’s sole
\ncost, expense, liability and risk, to do any or all of the following (in
\nTenant’s discretion) concerning such Parcel, for the sole purpose of enabling
\nTenant effectively to exclude trespassers and to keep such Parcels clean and
\nfree of refuse, rubbish, and Hazardous Substances: (i) to fence such Parcel;
\nand (ii) to take any and all other lawful and reasonable actions necessary or
\ndesirable to accomplish the purpose set out in this sentence; provided,
\nhowever, that Tenant may not (A) do anything which violates any applicable
\nlaw, ordinance, rule or regulation or the CC&Rs or any provision of this
\nLease, or (B) exclude Landlord or its licensees, designees or guests, or any
\nSecured Lender, from any Parcel. Tenant hereby agrees to defend, indemnify
\nand hold Landlord harmless from and against any and all losses, liabilities,
\ndamages, costs, expenses and claims of any kind which Landlord may pay,
\nsuffer or incur, or which may be asserted against Landlord, as a result or
\nconsequence of, or which concern or relate to, any action taken by Tenant
\npursuant to or as authorized by the provisions of this SECTION 45.14.<\/p>\n
ARTICLE 46
\n RENEWAL OPTIONS<\/p>\n
94<\/p>\n
If no uncured Default then exists, Tenant shall (subject to the
\nprovisions of SECTION 10.11) have the option (“RENEWAL OPTION”) to extend
\nthis Lease for two (2) additional terms of ten (10) years each (individually,
\na “RENEWAL TERM” and collectively, “RENEWAL TERMS”) on the same terms and
\nconditions as provided herein (including, without limitation, the payment by
\nTenant of all Impositions and other components of Rental) except for the
\namount of the Fixed Rent. Tenant shall exercise each of the Renewal Options
\nby giving Landlord notice of such exercise (such notice to be given in the
\nsame manner and to contain similar information
\n[to the extent relevant to the renewal] as is provided in SECTION 45.1 with
\nrespect to Exercise Notices) not later than one year prior to the expiration
\nof the Term or the previous Renewal Term. The Fixed Rent payable for and in
\nany Renewal Term shall be agreed to by the parties prior to commencement of
\nthe particular Renewal Term; provided, however, that if the parties are
\nunable to reach agreement as to the amount of such Fixed Rent, the parties
\nshall submit the matter to binding arbitration pursuant to the provisions of
\nSECTION 45.11, provided, however, that the amount of the annual Fixed Rent
\npayable for and in any Renewal Term shall be equal to the sum of (i) that
\namount which, if paid annually throughout that particular Renewal Term
\n(without regard to any further renewals or extensions), in equal monthly
\ninstallments on the first day of each month of such Renewal Term, would be
\nsufficient fully and completely to amortize the Total Construction Cost for
\nany buildings, improvements, rehabilitation, renovation or other work (if
\nany) which Landlord performs, constructs or installs for or in connec tion
\nwith such Renewal (“NEW LANDLORD IMPROVEMENTS”) and also to provide Landlord
\nwith a fair market return on its investment in or relating to such New
\nLandlord Improvements, plus (ii) whichever of the following Tenant, in its
\ndiscretion, specifies in its notice of exercise of such Option (and if Tenant
\nfails to specify either of the following in its notice of election, then the
\nannual Fixed Rent shall be that specified in the following clause (A)): (A)
\n95% of the Fair Annual Rental Amount (defined hereinbelow) for the Premises
\n(in their condition as in effect on the first day of the Renewal Term but
\nwithout taking into consideration any New Landlord Improvements) as of the
\nfirst day of the Renewal Term; or (B) for each year of the first five years
\nof the Renewal Term an amount equal to 110% of the annual Fixed Rent as in
\neffect on the day immediately preceding the commencement of such Renewal
\nTerm, and for each year of the second five years of such Renewal Term an
\namount equal to 110% of the annual Fixed Rent as in effect during the first
\nfive years of such Renewal Term. The decision of the arbitrators as to the
\namount of the annual Fixed Rent for any Renewal Term shall be final,
\nconclusive and binding on the parties; provided, however, that Tenant may
\nterminate the Lease on the expiration of the Term (or the expiration of the
\nfirst Renewal Term, if applicable) by giving Landlord written notice to the
\neffect that Tenant objects to the amount of such annual Fixed Rent and has
\nelected to terminate the Lease as of the end of the Term (or the Final
\nRenewal Term, if applicable); such notice must be given by Tenant to
\nLandlord, not later than seven months before the expiration of the Term (or
\nthe first Renewal Term, if applicable), except that if the arbitrators’
\ndecision has not been rendered by that date, Tenant may deliver such Notice
\nto Landlord not later than 30 days after the arbitrators’ decision is
\nrendered. “FAIR ANNUAL RENTAL AMOUNT” shall mean, as of any time, the market
\nrental rate per annum (I.E., the amount of rent payable each year) prevailing
\nat that time for a new lease having a term substantially equal to the Renewal
\nTerm to which such Fair Annual Rental Amount is then being applied, with a
\nreputable, fully creditworthy tenant for a comparable building located within
\na high-quality, comparable industrial park in the <\/p>\n
95<\/p>\n
greater Jacksonville, Florida metropolitan area, taking into account all
\nrelevant factors (including, without limitation, increases in rent over time
\nin such other comparable leases).<\/p>\n
ARTICLE 47
\n Omitted<\/p>\n
ARTICLE 48
\n LANDLORD DEFAULTS<\/p>\n
SECTION 48.1 LANDLORD DEFAULTS. The occurrence of any one or more of
\nthe following shall be a “LANDLORD DEFAULT” hereunder:<\/p>\n
(a) If Landlord shall fail to pay when due and payable any
\nsum owed by Landlord to Tenant under this Lease, and such failure shall
\ncontinue for a period of ten days after notice of such default is given to
\nLandlord by Tenant;<\/p>\n
(b) If Landlord shall fail to pay when due and payable any
\nImpositions (if any) or other amounts which the provisions of this Lease
\nexpressly obligate Landlord to pay to any Person other than Tenant, and such
\nfailure shall continue for a period of 21 days after notice of such default
\nis given to Landlord by Tenant;<\/p>\n
(c) if Landlord shall fail to perform any of its material
\nduties or obligations set out in this Lease (other than those which are the
\nsubject of either of the preceding CLAUSES (a) or (b), inclusive, of this
\nSECTION 48.1) and such failure continues for a period of thirty days after
\nnotice thereof is given by Tenant to Landlord specifying such failure (unless
\nsuch failure requires work to be performed, acts to be done, or conditions to
\nbe removed which cannot, either by their nature or by reason of Unavoidable
\nDelays, reasonably be performed, done or removed, as the case may be, within
\nsuch 30-day period, in which case no Landlord Default shall be deemed to
\nexist so long as Landlord shall have commenced curing the same promptly after
\nreceiving the default notice relating thereto from Tenant and shall
\nthereafter at all times prosecute the same to completion with reasonable
\ndiligence, subject only to Unavoidable Delays).<\/p>\n
SECTION 48.2 TENANT REMEDIES. After the occurrence of a Landlord
\nDefault (and the expiration of the applicable grace or cure period), Tenant
\nshall have the following remedies as its sole and exclusive remedies:<\/p>\n
(a) Tenant may institute a lawsuit for the collection of
\nany amounts or damages which may be due and payable by Landlord to Tenant
\nhereunder for which Landlord may be in default, or (to the extent available
\nunder applicable law and principles of equity) for specific performance by
\nLandlord of (or an injunction to enjoin Landlord to perform) its obligations
\nhereunder, and if as a result of any such lawsuit Tenant is awarded damages
\nagainst Landlord, Tenant may deduct and set off the amount of any such final,
\nunappealable award (and interest thereon at the legal “judgment rate” from
\nthe date of entry of such judgment order) from and against the next <\/p>\n
96<\/p>\n
succeeding installment payments of Fixed Rent coming due and payable by
\nTenant to Landlord hereunder, provided, however, that in no event shall the
\namount actually paid by Tenant to Landlord for and on account of Fixed Rent
\nin any month be reduced to less than the total amount of all debt service
\npayments required to be paid by Landlord in such month to Secured Lenders on
\naccount of Secured Loans;<\/p>\n
(b) Tenant may, at its option but without obligation,
\nwithout waiving any claim for damages resulting from such Landlord Default,
\nat any time after giving Landlord at least ten days’ prior notice of its
\nintention to do so, cause such Landlord Default to be cured for the account
\nof Landlord, and any amount paid or any contractual liability incurred by
\nTenant in so doing shall be deemed paid or incurred for the account of
\nLandlord, and Landlord agrees to reimburse Tenant therefor on demand. If
\nLandlord fails to reimburse Tenant upon demand for any amount so paid for the
\naccount of Landlord under this Section 48.2(b) within fifteen (15) days after
\nreceipt from Tenant of written notice of claim for such reimbursement
\ntogether with such copies of bills, invoices, or other supporting
\ndocumentation as Landlord may reasonably request, said amount shall accrue
\ninterest at the rate of eight percent (8%) per annum and may be deducted and
\nset off by Tenant from and against the next or succeeding installment
\npayments of Fixed Rent coming due and payable by Tenant to Landlord
\nhereunder; provided, however, that in no event shall the amount actually paid
\nby Tenant to Landlord for and on account of Fixed Rent in any month be
\nreduced to less than the total amount of all debt service payments required
\nto be paid by Landlord in such month to Secured Lenders on account of Secured
\nLoans;<\/p>\n
(c) Tenant shall have such other remedies (if any) as are
\nexpressly provided under the provisions of this Lease.<\/p>\n
Tenant may not under any circumstance terminate, or bring a lawsuit or other
\ncourt action seeking a judicial order for or declaration of the termination
\nof, this Lease for or on account of any Landlord Default.<\/p>\n
ARTICLE 49
\n TITLE INSURANCE<\/p>\n
Tenant may, at its option and at its sole cost and expense, obtain
\nsuch policies of title insurance insuring its leasehold estate and
\nappurtenant easements as Tenant may desire. Landlord will cooperate with
\nTenant’s reasonable requests to assist it in efforts to obtain such title
\ninsurance, but Landlord shall not be required to pay or incur any cost,
\nexpense, liability or risk in connection therewith.<\/p>\n
97<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
\nof the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
CTC INVESTMENTS LIMITED<\/p>\n
By: Canpartners Realty, Inc.,
\n its general partner<\/p>\n
____________________ By:_________________________________
\nWitness Name:
\n Title:<\/p>\n
____________________
\nWitness<\/p>\n
TENANT:<\/p>\n
COACH DISTRIBUTION COMPANY<\/p>\n
____________________
\nWitness<\/p>\n
By:_________________________________
\n____________________ Name:
\nWitness Title:<\/p>\n
98<\/p>\n
EXHIBIT A<\/p>\n
DESCRIPTION OF PARCEL A<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.86 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT; THENCE
\nSOUTH 15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH
\n04 DEG. 06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG.
\n00’00” WEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF
\n5.13 FEET TO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN
\nOFFICIAL RECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF
\nSAID DUVAL COUNTY; THENCE DUE WEST A DISTANCE OF 575.0 TO THE POINT OF
\nBEGINNING; THENCE SOUTH 00 DEG. 05’25” EAST AND PARALLEL WITH THE WEST LINE
\nOF SAID OFFICIAL RECORD VOLUME 6690, PAGE 1674, A DISTANCE OF 1020.0 FEET;
\nTHENCE SOUTH 89 DEG. 54’35” WEST A DISTANCE OF 881.43 FEET; THENCE NORTH 07
\nDEG. 09’06” EAST A DISTANCE OF 559.61 FEET TO A POINT; THENCE SOUTH 82 DEG.
\n50’54” EAST A DISTANCE OF 55.0 FEET TO A POINT; THENCE NORTH 10 DEG. 06’45”
\nEAST A DISTANCE OF 290.39 FEET TO A POINT; THENCE NORTH 67 DEG. 06’45” EAST A
\nDISTANCE OF 260.0 FEET TO A POINT; THENCE NORTH 72 DEG. 39’13” EAST A
\nDISTANCE OF 406.10 FEET TO A POINT IN THE WESTERLY RIGHT-OF-WAY LINE OF A
\nPROPOSED 80 FOOT RIGHT-OF-WAY, SAID POINT LYING IN A CURVE SAID SURVEY BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 50.0 FEET, THENCE
\nSOUTHEASTERLY ALONG THE ARC OF SAID CURVE 63.40 FEET, THROUGH A CENTRAL ANGLE
\nOF 72 DEG. 39’13”, A CHORD BEARING OF SOUTH 53 DEG. 40’23” EAST AND A CHORD
\nDISTANCE OF 59.24 FEET TO THE POINT OF TANGENT OF SAID CURVE; <\/p>\n
THENCE DUE EAST ALONG SAID RIGHT-OF-WAY LINE A DISTANCE OF 29.70 FEET TO THE
\nPOINT OF BEGINNING.<\/p>\n
EXHIBIT B<\/p>\n
TITLE MATTERS<\/p>\n
1. Unrecorded Preliminary Development Agreement for Jax International
\n Tradeport, dated July 30, 1987 as amended by instrument recorded August 22,
\n 1988 in Official Record Book 6566, page 708, of the current public records
\n of Duval County, Florida.<\/p>\n
2. Resolution No. 88-1223-541 dated and approved December 20, 1988 and
\n recorded December 30, 1988 in Official Record Book 6634, page 1692 and
\n Notice of Adoption recorded January 19, 1989 in Official Record Book 6644,
\n page 922, all of the current public records of Duval County, Florida.<\/p>\n
3. Restrictions, covenants, conditions and easements, which include provisions
\n for a private charge or assessment, as contained in the instrument recorded
\n August 2, 1990 in Official Records Book 6941, page 427 (“INITIAL
\n DECLARATION”), together with the joinder and consent and supplement, as
\n recorded in Official Record Book 6941, page 463, Official Record Book 6941,
\n page 458, Official Record Book 6999, page 2023, Official Record Book 7385,
\n page 1290 and Official Record Book 7631, page 1706, all of the Public
\n Records of Duval County, Florida, as amended and recorded against the
\n Premises in the real estate records of Duval County, Florida, from time to
\n time; provided, however, that Landlord will obtain a release from Wilma of
\n its easement rights set forth in the first and second sentences of Article
\n 17 of the Declaration and the option rights and right of first refusal set
\n forth in Articles 18(c)-(e) of the Declaration.<\/p>\n
4. Declaration of Conservation Easement as set forth in instrument recorded
\n December 19, 1989, in Official Records Book 6811, page 827, of the Public
\n Records of Duval County, Florida.<\/p>\n
5. The nature, extent, or existence of riparian rights are not insured.<\/p>\n
6. Rights of others to use the waters of any waterbody extending from the
\n insured land onto other lands.<\/p>\n
7. Easement from Skyland Properties, a Florida general partnership to CTC
\n investments Limited, granting adequate means of ingress and egress to the
\n Parcels, which easement does not or will not interfere with Tenant’s
\n intended use of the Premises.<\/p>\n
8. (a) Governmental police power.<\/p>\n
(b) Any law, ordinance or governmental regulation relating to
\n environmental protection.<\/p>\n
(c) Any law, ordinance or governmental regulation (including but
\n not limited to building and zoning ordinances) restricting or
\n regulating or prohibiting the occupancy, use or enjoyment of
\n the land, or regulating the character, dimensions or location
\n of any improvement now or hereafter erected on the land, or
\n prohibiting a separation in ownership or a change in the
\n dimensions or area of any Parcel.<\/p>\n
(d) Rights of eminent domain.<\/p>\n
(e) Defects, liens, encumbrances, adverse claims or other matters
\n attaching or created subsequent to the Commencement Date
\n unless created, suffered, assumed or agreed to by Landlord, or
\n any person acting, claiming or holding by, through or under
\n Landlord (except Tenant or any Person acting, claiming or
\n holding by, through or under Tenant).<\/p>\n
9. City of Jacksonville Resolutions 87-1009-572, 88-448-463, 88-1223-541
\n and 91-394-202.<\/p>\n
10. The Jacksonville International Tradeport Development Guidelines as in
\n effect from time to time.<\/p>\n
11. Any matters, encumbrances, claims, charges, exceptions or matters
\n created or suffered, or consented to, by Tenant or any Person acting,
\n claiming or holding by, through or under Tenant.<\/p>\n
12. Taxes and assessments levied or assessed for the first Lease Year or
\n assessed subsequent thereto.<\/p>\n
13. Any Secured Loans, for which the Secured Lender and Tenant have
\n executed a Nondisturbance Agreement as required by Article 30 of the
\n Lease.<\/p>\n
EXHIBIT C<\/p>\n
LEASEHOLD IMPROVEMENT AGREEMENT<\/p>\n
1. PRELIMINARY PLANS. Landlord shall, at Landlord’s expense (as
\nprovided below), cause Reynolds, Smith & Hills, Inc. (Reynolds, Smith & Hills, Inc., or any other architect retained by Landlord with respect to the
\nPremises from time to time, is referred to as the “ARCHITECT”) to prepare a
\ncoordination set of plans and specifications for the Initial Building,
\nrelated improvements and whatever site work is to be performed or constructed
\non the Parcels before the Commencement Date, including grading, paving and
\ndrainage plans, utility plans (including electricity, potable water, sanitary
\nand storm water sewerage, and telecommunications, if applicable) and
\nconnections of each (“PRELIMINARY PLANS”). The Preliminary Plans shall fully
\ncomply with the applicable requirements of all Governmental Authorities and
\nCC&R’s.<\/p>\n
The Preliminary Plans shall be agreed to by both Landlord and Tenant
\nas follows: Landlord shall submit the Preliminary Plans to Tenant on or
\nbefore the seventh day after delivery to Landlord by Tenant of an executed
\nLease and an executed Guaranty. Within seven business days after the
\ncompleted Preliminary Plans have been submitted to Tenant, Tenant agrees to
\ndeliver to Architect and Landlord the Preliminary Plans together with either
\n(i) Tenant’s written approval of such Preliminary Plans or (ii) Tenant’s
\nreasonably requested changes to such Preliminary Plans (“REQUESTED CHANGES”)
\nin sufficient detail to permit Architect to prepare revised drawings. Should
\nTenant fail to deliver the Preliminary Plans with Tenant’s approval or
\nRequested Changes to Architect and Landlord within said seven-day period, and
\nshould such failure continue for three days after written notice of such
\nfailure from Landlord to Tenant, Landlord may construct the Building, related
\nimprovements and site improvements (collectively, the “IMPROVEMENTS”)
\naccording to such Preliminary Plans (subject to Tenant’s rights to modify the
\nPreliminary Plans as described in SECTION 2 of this Leasehold Improvement
\nAgreement), and upon Substantial Completion (as defined herein) thereof,
\nTenant shall be obligated to take possession of the Premises and the Term of
\nthe Lease shall commence. If Tenant has timely delivered Requested Changes to
\nLandlord and Architect, then no later than seven business days after receipt
\nby Landlord and Architect of the Requested Changes from Architect, Landlord
\nshall notify Tenant either that Landlord has approved the Requested Changes
\nor that Landlord has disapproved the Requested Changes, in which latter case
\nsuch notice shall specify Landlord’s reasons for disapproval. Landlord’s
\napproval of the Requested Changes shall not be unreasonably withheld. If
\nLandlord disapproves the Requested Changes, then the foregoing submission
\nprocess shall be repeated until the parties agree on the Preliminary Plans.
\nThe Preliminary Plans as approved by the parties pursuant to this SECTION 1
\nof this Leasehold Improvement Agreement shall be referred to herein as the
\n“PLANS”; and, upon such approval, the Plans shall be deemed a part of this
\nLeasehold Improvement Agreement. If Tenant and Landlord are unable to agree
\nupon final Plans after three submissions by Landlord to Tenant, then upon the
\nrequest of either party, the parties (and all representatives of such parties
\nneeded to approve the Plans on behalf of such parties) shall personally
\nattend a meeting at which the parties shall use their best efforts to agree
\nupon the Plans.<\/p>\n
2. MODIFICATION TO PLANS. Tenant may, from time to time, modify,
\namend or change the Plans with Landlord’s prior written consent, which
\nconsent shall not be unreasonably withheld, conditioned or delayed, provided
\nthat (i) Tenant provides Landlord and Architect with information regarding
\neach such change in sufficient detail to permit the Architect to prepare
\nworking drawings or change orders reflecting such proposed change and (ii)
\nthe proposed change is consistent with the scope, quality, intent and purpose
\nof the approved Plans. Tenant shall pay Landlord, within 30 days after
\nLandlord’s request for payment, all reasonable costs of every kind
\n(including, without limitation, Architect’s fees, fees of Landlord’s
\nconsultant who reviews such proposed changes for Landlord, and any increase
\nin the Total Construction Cost) resulting from or occasioned by each such
\nproposed or accepted change. No modification, amendment or change to the
\nPlans shall be made unless the same has been certified by the Architect as
\ncomplying with all applicable laws and the CC&R’s.<\/p>\n
3. DISCLAIMER: Landlord hereby acknowledges and agrees that the
\napproval by Tenant of the Plans shall neither constitute nor be construed as
\na certification by Tenant, or any Person claiming or acting by, through or
\nunder Tenant, that the Plans meet or otherwise comply with architectural,
\nengineer, or construction industry standards or applicable buildings codes,
\nlaws, ordinances, rules or regulations of any governmental authority or other
\napplicable agency.<\/p>\n
4. DELAY CAUSED BY TENANT. The Term of the Lease shall commence on
\nthe day (the “COMMENCEMENT DATE”) on which Substantial Completion (as defined
\nherein) occurs; provided, however, that if Landlord shall be actually delayed
\nin substantially completing the Improvements as a result of any one or more
\nof (a) Tenant’s failure to approve, or provide necessary information for, the
\nPlans as and when required hereby, (b) Tenant’s changes (or requests for any
\nchange) to the Plans, or (c) any other act or omission by Tenant or its
\nagents which actually delays the Landlord in completing the Improvements,
\nthen Landlord shall cause the Architect to state in a letter to Landlord and
\nTenant its opinion as to the date on which Substantial Completion would have
\noccurred but for the Tenant-caused delays, which date shall be and shall
\nconstitute the Commencement Date of the Lease for all purposes (including but
\nnot limited to the Lease and Section 9 of this Leasehold Improvement
\nAgreement), and Tenant’s obligation to commence payment of Fixed Rent for the
\nPremises shall arise as of such date and shall not otherwise be affected or
\ndeferred on account of such actual delay.<\/p>\n
5. COMMENCEMENT OF CONSTRUCTION. Landlord shall notify Tenant when
\nconstruction of the Building or related improvements or site improvements has
\ncommenced and thereafter will give Tenant monthly construction status reports
\nwith a projected date of completion. For purposes of this EXHIBIT C, the
\nterms “COMMENCE CONSTRUCTION” and “COMMENCEMENT OF CONSTRUCTION” shall be
\ndeemed to mean the pouring of concrete footers for the Building.<\/p>\n
6. ENTRY BY TENANT. Tenant and Tenant’s agents may enter the
\nPremises prior to the Commencement Date under Landlord’s direction and
\nsupervision for purposes of inspecting, measuring, installing or arranging
\nTenant’s Property and otherwise to make the Premises ready for <\/p>\n
2<\/p>\n
Tenant’s use and occupancy. Such entry prior to the Commencement Date shall
\nconstitute a license only and not a lease, and such license shall be
\nconditioned upon (and Tenant agrees to comply with) all of the following: (a)
\nTenant’s acting and working in harmony and not interfering with Landlord and
\nLandlord’s agents, contractors, workmen, mechanics and suppliers in being
\npresent or doing work on the Premises; (b) Tenant’s obtaining in advance
\nLandlord’s approval of all contractors, subcontractors and suppliers proposed
\nto be used by Tenant, said approval not to be unreasonably withheld or
\ndelayed; (c) Tenant’s furnishing Landlord with written evidence of such
\ninsurance of Tenant, its contractors and subcontractors as Landlord may
\nreasonably require against liabilities which may arise out of such entry
\n(including, but not limited to, builder’s risk, liability and workers’
\ncompensation coverage) and (d) Landlord’s determination, in the case of each
\nsuch requested entry by Tenant, that such entry will not interfere in any way
\nwith Landlord’s work. Tenant agrees that Landlord shall not be liable in any
\nway for any injury, loss or damage which may occur to any of Tenant’s
\nProperty placed or installations made on the Premises prior to the
\nCommencement Date, the same being at Tenant’s sole risk, and Tenant agrees to
\nprotect, defend, indemnify and save harmless Landlord from and against all
\nlosses, claims, liabilities, costs, damages, and injuries of any and every
\nkind whatsoever that may result from any such entry by Tenant (including,
\nwithout limitation, damage to the Improvements, fees and expenses arising out
\nof or connected with the activities of Tenant or its agents, contractors,
\nsubcontractors, suppliers or workmen in or about the Premises, and losses,
\nclaims, liabilities, costs, damages, damage to the Improvements, fees and
\nexpenses related to environmental matters and Hazardous Materials). Except
\nfor the indemnity set forth above, Tenant shall not be obligated to pay to
\nLandlord, nor shall Landlord be entitled to charge Tenant, Fixed Rent or any
\nother amounts which may otherwise be due and payable under this Lease by
\nvirtue of the exercise by Tenant of the rights and privileges herein.<\/p>\n
7. CORRECTION. Landlord agrees to cause to be promptly corrected any
\nmaterial deficiencies in the work, materials, or elements of the work which
\ndo not comply with the requirements of the Plans, which are promptly called
\nto its attention during construction by any Governmental Authority or
\nTenant’s “CONSTRUCTION REPRESENTATIVE” (who Tenant shall have designated as
\nits construction representative in a written notice to Landlord within five
\ndays after commencement of construction) prior to or at the inspection
\ndescribed in SECTION 11 of this Leasehold Improvement Agreement.<\/p>\n
8. DELIVERY DATE. Landlord shall cause Substantial Completion to
\noccur on or before the date (the “DELIVERY DATE”) which is 290 days after the
\nlater of (i) delivery to Landlord by Tenant of an executed Lease and an
\nexecuted Guaranty and (ii) execution by Tenant of a development agreement, in
\nform acceptable to the City of Jacksonville, regarding grants from the City
\nof Jacksonville to Tenant for the installation of roads and utilities to
\nserve the Premises; provided, however, that if Substantial Completion has not
\noccurred by the Delivery Date, the Delivery Date shall be extended for an
\nadditional 10 days, provided further, that and the Delivery Date shall be
\nfurther extended for actual delays (collectively, “EXTENSION DELAYS”) caused
\nby (a) Unavoidable Delay, (b) Tenant’s failure to approve the coordination
\nset of plans and specifications as initially submitted to Tenant or Tenant’s
\nfailure to approve the Plans as resubmitted to Tenant in accordance with
\nSECTION 1 of this Leasehold Improvement Agreement and\/or Tenant’s submission
\nof Requested <\/p>\n
3<\/p>\n
Changes under SECTION 1 of this Leasehold Improvement Agreement, (c) Tenant’s
\nchanges (or requests for change) to the Plans or any other Tenant-caused
\ndelay described in SECTION 4 of this Leasehold Improvement Agreement, (d)
\nTenant’s failure to provide necessary information as and when required
\nhereby, or (e) any other act of or by Tenant or its agents, representatives,
\ncontractors, subcontractors or Persons acting by, through or under Tenant.
\nThe Delivery Date shall be extended one day for each day of Extension Delay.<\/p>\n
9. FAILURE TO DELIVER PREMISES BY DELIVERY DATE. If Substantial
\nCompletion has not occurred by the Delivery Date, as extended, if applicable,
\nan amount of Fixed Rent under the Lease shall be abated in the amount of
\n$40,000.00 for each seven-day week after the Delivery Date (prorated on a
\ndaily basis for a 7-day week) that Substantial Completion has not occurred,
\nsuch sum to increase by $10,000.00 every 14 full days (not prorated on a
\ndaily basis) thereafter.<\/p>\n
10. SUBSTANTIAL COMPLETION. “SUBSTANTIAL COMPLETION” occurs when all
\nof the following conditions have been satisfied: (a) receipt of a Certificate
\nof Substantial Completion by Architect on AIA Form G704 (or a substantially
\nsimilar form) relating to the construction of the Improvements; (b) Tenant
\ncan use the Premises for its intended purposes without material interference
\nto Tenant conducting its business activities; (c) Final Inspection has
\noccurred; (d) Tenant, its employees, agents and invitees have ready access
\nto, and parking adjacent to, the Building and the Premises (but not
\nnecessarily on paved surfaces); (e) necessary utilities (not including
\nnatural gas) and plumbing are available (availability through temporary
\nfacilities will be acceptable for this purpose; provided, however, that
\nconnection to permanent facilities will not result in the unavailability or
\ndiscontinuance of such utilities with respect to Tenant’s use of the Premises
\nthereafter) in capacities not less than as set forth in the Plans, are
\nconnected to mains or other appropriate sources, and all utility meters have
\nbeen set and activated; (f) receipt of a certificate from an engineer stating
\nthat no additional easements are required to be granted for the benefit of
\nParcel A in order for Parcel A and the Improvements located thereon to be
\nprovided with access, utility services and drainage, as required by the Lease
\nand this Leasehold Improvement Agreement; (g) receipt of an instrument from
\nWilma\/Skyland Joint Venture, Ltd. (or its successor) regarding the
\nImprovements, in the form described in Section 10.h of the Declaration of
\nCovenants, Conditions, Restrictions and Easements described in the definition
\nof “CC&R’s”; and (h) receipt (at Tenant’s sole cost and expense) of an update
\nto the existing commitment for title insurance dated prior to (and as close
\nas is reasonably practical to) the date of Substantial Completion, showing no
\nexceptions to title affecting the Premises (or interfering with or limiting
\nTenant’s rights to Parcels B, C or D as set forth in the Lease) other than
\nthose shown on Exhibit B or those approved or consented to by Tenant. At
\nLandlord’s request, Tenant will execute and deliver to Landlord a written
\nacknowledgment that Substantial Completion has occurred. Acceptance of
\npossession, use or occupancy of the Premises by Tenant shall not be deemed to
\nconstitute a waiver of Landlord’s duties, obligations or warranties expressly
\nset forth in the Lease.<\/p>\n
Landlord shall use reasonable efforts to give Tenant at least
\nfifteen days’ advance notice of the estimated date on which Substantial
\nCompletion is expected to occur and five days’ advance notice of any changes
\nto the estimated Substantial Completion date.<\/p>\n
4<\/p>\n
11. INSPECTION. Upon five days’ written notice from Landlord to
\nTenant, Landlord and Tenant’s Construction Representative (who shall be
\ndeemed to be Tenant’s agent for all purposes of this Leasehold Improvement
\nAgreement) shall jointly inspect the Building and Premises, at which
\ninspection Tenant may have all systems demonstrated, and Tenant (or its
\nConstruction Representative) and Landlord shall jointly prepare a punch list.
\nSaid inspection shall occur between one and twenty days prior to the
\nCommencement Date. The punch list shall list incomplete items of construction
\nnecessary adjustments and needed finishing touches. Landlord will cause the
\npunch list items to be completed as soon as reasonably practical after the
\nCommencement Date.<\/p>\n
12. LANDLORD’S INSURANCE. Landlord agrees that during the period of
\nLandlord’s construction of the Improvements, Landlord will obtain and keep in
\nforce, or cause to be obtained or kept in force, at no cost to Tenant,
\nbuilder’s risk insurance, automobile liability insurance and comprehensive
\ngeneral liability insurance against liability for bodily injury and death and
\nproperty damage, in reasonable and customary amounts and forms. Landlord
\nshall also provide or cause to be provided and kept in force workers’
\ncompensation coverage with statutory benefits covering employees of
\nLandlord’s contractor (but not employees of Tenant or Tenant’s contractors)
\nand with such endorsements as may be reasonably requested by Tenant.<\/p>\n
13. COPIES OF PLANS. Upon the Commencement Date, Landlord shall
\ndeliver to Tenant two original “as built” surveys of the Premises, two sets
\nof “as built” plans for the Premises (which plans shall identify the location
\nof all offsite utility, drainage and stormwater retention easements
\nbenefitting the Premises) and all building systems, and shall deliver to
\nTenant one copy (or the original, if required by law to be kept at the
\nPremises) of each of the licenses, permits, governmental approvals,
\nwarranties, guarantees, utility contracts, operating manuals, maintenance
\nmanuals, surveys, plats, engineering reports, environmental reports and soil
\ntests regarding the Premises.<\/p>\n
14. ENVIRONMENTAL REPORT. Tenant may, at its sole cost and expense,
\ncause a “Phase I” environmental report of the Parcels to be done by a
\nreputable and experienced firm of independent environmental consulting
\nengineers at any time before the Commencement Date. Such report shall be
\ncompleted, and a copy to Landlord, thereof (together with a “reliance letter”
\nin customary form addressed to Landlord) delivered not later than the
\nCommencement Date. If such report discloses the existence on the parcels of a
\nviolation of any Environmental Laws, Landlord will take all reasonable
\nactions (if any) which, in Landlord’s judgment, are appropriate with respect
\nthereto (which may, but need not, include remediation of this violation cited
\nin such report). The existence of any such violation shall not have any
\neffect of any kind whatsoever on whether Substantial Completion, or the
\nCommencement Date, shall be deemed to have occurred.<\/p>\n
5<\/p>\n
EXHIBIT D<\/p>\n
DESCRIPTION OF PARCEL B<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.88 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT; THENCE
\n15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH 04 DEG.
\n06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG. 00’00”
\nWEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF 5.13 FEET
\nTO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN OFFICIAL
\nRECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF SAID DUVAL
\nCOUNTY, SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE SOUTH 00 DEG.
\n05’25” EAST ALONG THE WEST LINE OF LAST MENTIONED LANDS A DISTANCE OF 1019.09
\nFEET; THENCE SOUTH 89 DEG. 54’35” WEST A DISTANCE OF 575.0 FEET; THENCE NORTH
\n00 DEG. 05’25” WEST AND PARALLEL WITH THE WEST LINE OF SAID OFFICIAL RECORDS
\nVOLUME 6690, PAGE 1674 A DISTANCE OF 1020.0 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF A PROPOSED 80 FOOT RIGHT-OF-WAY; THENCE DUE EAST ALONG
\nSAID SOUTHERLY RIGHT-OF-WAY LINE AND THE EASTERLY PROLONGATION THEREOF 575.0
\nFEET TO THE POINT OF BEGINNING.<\/p>\n
EXHIBIT E<\/p>\n
DESCRIPTION OF PARCEL C<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.88 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT; THENCE
\nSOUTH 15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH
\n04 DEG. 06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG.
\n00’00” WEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF
\n5.13 FEET TO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN
\nOFFICIAL RECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF
\nSAID DUVAL COUNTY, THENCE DUE WEST A DISTANCE OF 604.70 FEET TO A POINT OF
\nCURVE, SAID CURVE BEING CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 50.0
\nFEET, THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 63.40 FEET, THROUGH A
\nCENTRAL ANGLE OF 72 DEG. 39’13”, A CHORD BEARING OF NORTH 53 DEG. 40’23” WEST
\nAND A CHORD DISTANCE OF 59.24 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 72
\nDEG. 39’13” WEST A DISTANCE OF 406.10 FEET TO A POINT; THENCE SOUTH 67 DEG.
\n06’45” WEST A DISTANCE OF 260.0 FEET TO A POINT; THENCE NORTH 82 DEG. 50’54”
\nWEST A DISTANCE OF 70.0 FEET TO A POINT; THENCE NORTH 07 DEG. 09’06” EAST A
\nDISTANCE OF 160.0 FEET TO A POINT; THENCE NORTH 23 DEG. 13’00” EAST A
\nDISTANCE OF 478.07 FEET TO A POINT; THENCE SOUTH 69 DEG. 42’24” EAST A
\nDISTANCE OF 619.12 FEET TO THE NORTHWESTERLY RIGHT- OF-WAY LINE OF A PROPOSED
\n80 FOOT RIGHT-OF-WAY; THENCE SOUTH 23 DEG. 13’00” WEST ALONG SAID PROPOSED
\nNORTHWESTERLY RIGHT-OF-WAY LINE 100.00 FEET TO THE POINT OF CURVE OF SAID
\nPROPOSED RIGHT-OF-WAY LINE, SAID CURVE BEING CONCAVE TO THE NORTHWEST AND
\nHAVING A RADIUS OF 25.0 FEET, THENCE SOUTHWESTERLY ALONG THE ARC OF SAID
\nCURVE 23.18 FEET, THROUGH A CENTRAL ANGLE OF 53 DEG. 07’48”, A CHORD BEARING
\nOF SOUTH 49 DEG. 46’54” WEST AND A CHORD DISTANCE OF 22.36 FEET TO THE POINT
\nOF REVERSE CURVE OF SAID PROPOSED RIGHT-OF-WAY LINE, SAID REVERSE CURVE BEING
\nCONCAVE TO THE <\/p>\n
7<\/p>\n
SOUTHEAST AND HAVING A RADIUS OF 50.0 FEET, THENCE SOUTHWESTERLY ALONG THE
\nARC OF SAID CURVE 81.76 FEET, THROUGH A CENTRAL ANGLE OF 93 DEG. 41’36”, A
\nCHORD BEARING OF SOUTH 29 DEG. 30’01” WEST AND A CHORD DISTANCE OF 72.95 FEET
\nTO THE POINT OF BEGINNING.<\/p>\n
8<\/p>\n
EXPANSION SPACE IMPROVEMENT AGREEMENT<\/p>\n
1. PRELIMINARY PLANS. Landlord shall, at Landlord’s expense (as
\nprovided below), cause an architect (the “ARCHITECT”) to prepare a set of
\nplans and specifications for the applicable Addition, related improvements
\nand whatever site work is to be performed or constructed on the applicable
\nexpansion parcel, including grading, paving and drainage plans, utility plans
\n(including electricity, potable water, sanitary and storm water sewerage, and
\ntelecommunications, if applicable) and connections of each (“PRELIMINARY
\nPLANS”). The Preliminary Plans shall fully comply with the applicable
\nrequirements of all Governmental Authorities and CC&R’s.<\/p>\n
The Preliminary Plans shall be agreed to by both Landlord and Tenant
\nas follows: Landlord shall submit the Preliminary Plans to Tenant on or
\nbefore the 90th day after delivery to Landlord by Tenant of the applicable
\nExpansion Notice. Within 14 business days after the completed Preliminary
\nPlans have been submitted to Tenant, Tenant agrees to deliver to Architect
\nand Landlord the Preliminary Plans together with either (i) Tenant’s written
\napproval of such Preliminary Plans or (ii) Tenant’s reasonably requested
\nchanges to such Preliminary Plans (“REQUESTED CHANGES”) in sufficient detail
\nto permit Architect to prepare revised drawings. Should Tenant fail to
\ndeliver the Preliminary Plans with Tenant’s approval or Requested Changes to
\nArchitect and Landlord within said 14-day period, and should such failure
\ncontinue for seven days after written notice of such failure from Landlord to
\nTenant, Landlord may construct the applicable Addition, related improvements
\nand site improvements (collectively, the “EXPANSION IMPROVEMENTS”) according
\nto such Preliminary Plans (subject to Tenant’s rights to modify the
\nPreliminary Plans as described in SECTION 2 of this Expansion Space
\nImprovement Agreement), and upon Substantial Completion (as defined herein)
\nthereof, Tenant shall be obligated to take possession of the Expansion
\nImprovements and the Term of the Lease with respect thereto shall commence.
\nIf Tenant has timely delivered Requested Changes to Landlord and Architect,
\nthen no later than seven business days after receipt by Landlord and
\nArchitect of the Requested Changes from Architect, Landlord shall notify
\nTenant either that Landlord has approved the Requested Changes or that
\nLandlord has disapproved the Requested Changes, in which latter case such
\nnotice shall specify Landlord’s reasons for disapproval. Landlord’s approval
\nof the Requested Changes shall not be unreasonably withheld. If Landlord
\ndisapproves the Requested Changes, then the foregoing submission process
\nshall be repeated until the parties agree on the Preliminary Plans. The
\nPreliminary Plans as approved by the parties pursuant to this SECTION 1 of
\nthis Expansion Space Improvement Agreement shall be referred to herein as the
\n“PLANS”; and, upon such approval, the Plans shall be deemed a part of this
\nExpansion Space Improvement Agreement. If Tenant and Landlord are unable to
\nagree upon final Plans after three submissions by Landlord to Tenant, then
\nupon the request of either party, the parties (and all representatives of
\nsuch parties needed to approve the Plans on behalf of such parties) shall
\npersonally attend a meeting at which the parties shall use their best efforts
\nto agree upon the Plans.<\/p>\n
2. MODIFICATION TO PLANS. Tenant may, from time to time, modify,
\namend or change the Plans with Landlord’s prior written consent, which
\nconsent shall not be unreasonably withheld, conditioned or delayed, provided
\nthat (i) Tenant provides Landlord and Architect with information regarding
\neach such change in sufficient detail to permit the Architect to prepare
\nworking drawings or change orders reflecting such proposed change and (ii)
\nthe proposed change is consistent with the scope, quality, intent and purpose
\nof the approved Plans. Tenant shall pay Landlord, within 30 days <\/p>\n
9<\/p>\n
after Landlord’s request for payment, all reasonable costs of every kind
\n(including, without limitation, Architect’s fees, fees of Landlord’s
\nconsultant who reviews such proposed changes for Landlord, and any increase
\nin the Total Construction Cost) resulting from or occasioned by each such
\nproposed or accepted change. No modification, amendment or change to the
\nPlans shall be made unless the same has been certified by the Architect as
\ncomplying with all applicable laws and the CC&R’s.<\/p>\n
3. DISCLAIMER: Landlord hereby acknowledges and agrees that the
\napproval by Tenant of the Plans shall neither constitute nor be construed as
\na certification by Tenant, or any Person claiming or acting by, through or
\nunder Tenant, that the Plans meet or otherwise comply with architectural,
\nengineer, or construction industry standards or applicable buildings codes,
\nlaws, ordinances, rules or regulations of any governmental authority or other
\napplicable agency.<\/p>\n
4. DELAY CAUSED BY TENANT. The Term applicable to the Expansion
\nImprovements and related parcel shall commence upon Substantial Completion
\n(as defined herein) of the applicable Expansion Improvements; provided,
\nhowever, that if Landlord shall be actually delayed in substantially
\ncompleting the applicable Expansion Improvements as a result of any one or
\nmore of (a) Tenant’s failure to approve, or provide necessary information
\nfor, the Plans as and when required hereby, (b) Tenant’s changes (or requests
\nfor any change) to the Plans, or (c) any other act or omission by Tenant or
\nits agents which actually delays the Landlord in completing the Expansion
\nImprovements, then Landlord shall cause the Architect to state in a letter to
\nLandlord and Tenant its opinion as to the date on which Substantial
\nCompletion would have occurred but for the Tenant-caused delays, which date
\nshall be and shall constitute the commencement date for Fixed Rent for the
\nExpansion Improvements for all purposes (including but not limited to the
\nLease and Section 9 of this Expansion Space Improvement Agreement) and
\nTenant’s obligation to commence payment of Fixed Rent for the Expansion
\nImprovements shall arise as of such date and shall not otherwise be affected
\nor deferred on account of such actual delay.<\/p>\n
5. COMMENCEMENT OF CONSTRUCTION. Landlord shall notify Tenant when
\nconstruction of the Expansion Improvements has commenced and thereafter will
\ngive Tenant monthly construction status reports with a projected date of
\ncompletion. For purposes of this EXHIBIT F, the terms “COMMENCE CONSTRUCTION”
\nand “COMMENCEMENT OF CONSTRUCTION” shall be deemed to mean the pouring of
\nconcrete footers for the applicable Addition.<\/p>\n
6. ENTRY BY TENANT. Tenant and Tenant’s agents may enter the
\nExpansion Improvements prior to the applicable Estimated Completion Date
\nunder Landlord’s direction and supervision for purposes of inspecting,
\nmeasuring, installing or arranging Tenant’s Property and otherwise to make
\nthe Expansion Improvements ready for Tenant’s use and occupancy. Such entry
\nprior to the Estimated Completion Date shall constitute a license only and
\nnot a lease, and such license shall be conditioned upon (and Tenant agrees to
\ncomply with) all of the following: (a) Tenant’s acting and working in harmony
\nand not interfering with Landlord and Landlord’s agents, contractors,
\nworkmen, mechanics and suppliers in being present or doing work on the
\nExpansion Improvements; (b) Tenant’s obtaining in advance Landlord’s approval
\nof all contractors, subcontractors and suppliers proposed to be used by
\nTenant, said approval not to be unreasonably withheld or delayed; (c)
\nTenant’s furnishing Landlord with written evidence of such insurance of
\nTenant, its contractors and <\/p>\n
10<\/p>\n
subcontractors as Landlord may reasonably require against liabilities which
\nmay arise out of such entry (including, but not limited to, builder’s risk,
\nliability and workers’ compensation coverage) and (d) Landlord’s
\ndetermination, in the case of each such requested entry by Tenant, that such
\nentry will not interfere in any way with Landlord’s work. Tenant agrees that
\nLandlord shall not be liable in any way for any injury, loss or damage which
\nmay occur to any of Tenant’s Property placed or installations made on the
\nExpansion Improvements prior to the Estimated Completion Date, the same being
\nat Tenant’s sole risk, and Tenant agrees to protect, defend, indemnify and
\nsave harmless Landlord from and against all losses, claims, liabilities,
\ncosts, damages, and injuries of any and every kind whatsoever that may result
\nfrom any such entry by Tenant (including, without limitation, damage to the
\nExpansion Improvements, fees and expenses arising out of or connected with
\nthe activities of Tenant or its agents, contractors, subcontractors,
\nsuppliers or workmen in or about the Expansion Improvements, and losses,
\nclaims, liabilities, costs, damages, damage to the Expansion Improvements,
\nfees and expenses related to environmental matters and Hazardous Materials).
\nExcept for the indemnity set forth above, Tenant shall not be obligated to
\npay to Landlord, nor shall Landlord be entitled to charge Tenant, Fixed Rent
\nor any other amounts which may otherwise be due and payable under this Lease
\nby virtue of the exercise by Tenant of the rights and privileges herein.<\/p>\n
7. CORRECTION. Landlord agrees to cause to be promptly corrected any
\nmaterial deficiencies in the work, materials, or elements of the work which
\ndo not comply with the requirements of the Plans, which are promptly called
\nto its attention during construction by any Governmental Authority or
\nTenant’s “CONSTRUCTION REPRESENTATIVE” (who shall be designated by Tenant
\nshall have designated as its construction representative in a written notice
\nto Landlord within five days after commencement of construction) prior to or
\nat the inspection described in SECTION 11 of this Expansion Space Improvement
\nAgreement.<\/p>\n
8. DELIVERY DATE. Landlord shall cause Substantial Completion to
\noccur on or before the date which is the later of the Estimated Completion
\nDate set forth in the Expansion Space Exercise Notice and the 365th day after
\nthe parties’ approval of the final Plans (the “DELIVERY DATE”); provided,
\nhowever, that if Substantial Completion has not occurred by the Delivery
\nDate, the Delivery Date shall be extended for an additional 10 days, provided
\nfurther, that the Delivery Date shall be further extended for actual delays
\n(collectively, “EXTENSION DELAYS”) caused by (a) Unavoidable Delay, (b)
\nTenant’s failure to approve the Plans as initially submitted to Tenant, (c)
\nTenant’s changes (or requests for change) to the Plans or any other
\nTenant-caused delay described in SECTION 4 of this Expansion Space Work
\nLetter; (d) Tenant’s failure to provide necessary information as and when
\nrequired hereby, or (e) any other act of or by Tenant or its agents,
\nrepresentatives, contractors, subcontractors or Persons acting by, through or
\nunder Tenant. The Delivery Date shall be extended one day for each day of
\nExtension Delay.<\/p>\n
9. FAILURE TO DELIVER PREMISES BY DELIVERY DATE. If Substantial
\nCompletion has not occurred by the Delivery Date, as extended, if applicable,
\nan amount of Fixed Rent under the Lease shall be abated in the amount of
\n$10,000.00 for each seven-day week after the Delivery Date (prorated on a
\ndaily basis for a 7-day week) that Substantial Completion has not occurred,
\nsuch sum to increase by $5,000.00 every 14 full days (not prorated on a daily
\nbasis) thereafter.<\/p>\n
11<\/p>\n
10. SUBSTANTIAL COMPLETION. “SUBSTANTIAL COMPLETION” occurs when all
\nof the following conditions have been satisfied: (a) receipt of a Certificate
\nof Substantial Completion by Architect on AIA Form G704 (or a substantially
\nsimilar form) relating to the construction of the Expansion Improvements; (b)
\nTenant can use the Expansion Improvements for its intended purposes without
\nmaterial interference to Tenant conducting its business activities; (c) Final
\nInspection has occurred; (d) Tenant, its employees, agents and invitees have
\nready access to, and parking (if contemplated by the Plans) for, the
\nExpansion Improvements (but not necessarily on paved surfaces); (e) necessary
\nutilities (not including natural gas) and plumbing are available
\n(availability through temporary facilities will be acceptable for this
\npurpose) in capacities not less than as set forth in the Plans, are connected
\nto mains or other appropriate sources, and all utility meters have been set
\nand activated; (f) receipt of a certificate from an engineer stating that no
\nadditional easements are required to be granted for the benefit of Parcel on
\nwhich the Expansion Improvements are is located in order for such Parcel and
\nthe improvements located thereon to be provided with access, utility services
\nand drainage, as required by the Lease and this Expansion Space Work Letter;
\n(g) receipt of an instrument from Wilma\/Skyland Joint Venture, Ltd. (or its
\nsuccessor) regarding the Expansion Improvements, in the form described in
\nSection 10.h of the Declaration of Covenants, Conditions, Restrictions and
\nEasements described in the definition of “CC&R’s” and (h) receipt (at
\nTenant’s sole cost and expense) of evidence that no exceptions to title not
\nset forth on Exhibit B as to the Expansion Improvements and the Parcel on
\nwhich they are located, exist. At Landlord’s request, Tenant will execute and
\ndeliver to Landlord a written acknowledgment that Substantial Completion has
\noccurred. Acceptance of possession, use or occupancy of the Expansion
\nImprovements by Tenant shall not be deemed to constitute a waiver of
\nLandlord’s duties, obligations or warranties expressly set forth in the Lease.<\/p>\n
Landlord shall use reasonable efforts to give Tenant at least
\nfifteen days’ advance notice of the estimated date on which Substantial
\nCompletion is expected to occur and five days’ advance notice of any changes
\nto the estimated Substantial Completion date.<\/p>\n
11. INSPECTION. Upon five days’ written notice from Landlord to
\nTenant, Landlord and Tenant’s Construction Representative (who shall be
\ndeemed to be Tenant’s agent for all purposes of this Leasehold Improvement
\nAgreement) shall jointly inspect the Expansion Improvements at which
\ninspection Tenant may have all systems demonstrated, and Tenant (or its
\nConstruction Representa tive) and Landlord shall jointly prepare a punch
\nlist. Said inspection shall occur between one and twenty days prior to the
\nestimated Substantial Completion date. The punch list shall list incomplete
\nitems of construction necessary adjustments and needed finishing touches.
\nLandlord will cause the punch list items to be completed as soon as
\nreasonably practical after the Substantial Completion of the Expansion
\nImprovements.<\/p>\n
12. LANDLORD’S INSURANCE. Landlord agrees that during the period of
\nLandlord’s construction of the Expansion Improvements, Landlord will obtain
\nand keep in force, or cause to be obtained or kept in force, at no cost to
\nTenant, builder’s risk insurance, automobile liability insurance and
\ncomprehensive general liability insurance against liability for bodily injury
\nand death and property damage, in reasonable and customary amounts and forms.
\nLandlord shall also provide or cause to be provided and kept in force
\nworkers’ compensation coverage with statutory benefits <\/p>\n
12<\/p>\n
covering employees of Landlord’s contractor (but not employees of Tenant or
\nTenant’s contractors) and with such endorsements as may be reasonably
\nrequested by Tenant.<\/p>\n
13. COPIES OF PLANS. Upon the date of commencement of the Expansion
\nFixed Rent, Landlord shall deliver to Tenant two original “as built” surveys
\nof the Expansion Improvements, two sets of “as built” plans for the Expansion
\nImprovements and all building systems, and shall deliver to Tenant one copy
\n(or the original, if required by law to be kept at the Expansion
\nImprovements) of each of the licenses, permits, governmental approvals,
\nwarranties, guarantees, utility contracts, operating manuals, maintenance
\nmanuals, surveys, plats, engineering reports, environmental reports and soil
\nreports.<\/p>\n
13<\/p>\n
EXHIBIT G<\/p>\n
DESCRIPTION OF PARCEL D<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST, AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.88 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT, THENCE
\nSOUTH 15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH
\n04 DEG. 06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG.
\n00’00” WEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF
\n5.13 FEET TO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN
\nOFFICIAL RECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF
\nSAID DUVAL COUNTY; THENCE SOUTH 00 DEG. 05’25” EAST ALONG THE WEST LINE OF
\nLAST MENTIONED LANDS A DISTANCE OF 1019.09 FEET TO THE POINT OF BEGINNING;
\nTHENCE CONTINUE SOUTH 00 DEG. 05’25” EAST ALONG SAID WEST LINE A DISTANCE OF
\n116.88 FEET TO THE SOUTHWEST CORNER OF SAID LANDS; THENCE SOUTH 02 DEG.
\n41’27” WEST A DISTANCE OF 110.13 FEET TO THE NORTHERLY RIGHT-OF-WAY LINE OF A
\nPROPOSED 80 FOOT RIGHT-OF-WAY; THENCE ALONG SAID PROPOSED NORTHERLY
\nRIGHT-OF-WAY LINE SOUTH, 89 DEG. 54’35” WEST A DISTANCE OF 133.21 FEET TO THE
\nPOINT OF CURVE OF SAID PROPOSED RIGHT-OF- WAY, SAID CURVE BEING CONCAVE TO
\nTHE SOUTHEAST AND HAVING A RADIUS OF 815.0 FEET; THENCE SOUTHWESTERLY ALONG
\nTHE ARC OF SAID CURVE 362.17 FEET, THROUGH A CENTRAL ANGLE OF 25 DEG. 27’40’,
\nALONG A CHORD BEARING OF SOUTH 77 DEG. 10’45” WEST A CHORD DISTANCE OF 359.20
\nFEET TO THE POINT OF REVERSE CURVE IN SAID PROPOSED NORTHERLY RIGHT-OF-WAY
\nLINE, SAID REVERSE CURVE BEING CONCAVE TO THE NORTHWEST AND HAVING A RADIUS
\nOF 560.0 FEET, THENCE ALONG THE ARC OF SAID CURVE 319.63 FEET, THROUGH A
\nCENTRAL ANGLE OF 32 DEG. 42’10”, ALONG A CHORD BEARING OF SOUTH 80 DEG.
\n48’01” WEST A CHORD DISTANCE OF 315.32 FEET TO THE POINT OF TANGENT OF SAID
\nCURVE; THENCE CONTINUE ALONG SAID PROPOSED NORTHERLY RIGHT-OF-WAY LINE, NORTH
\n82 DEG. 50’54” WEST A DISTANCE OF 695.80 FEET; THENCE DEPARTING FROM SAID <\/p>\n
14<\/p>\n
PROPOSED NORTHERLY RIGHT-OF-WAY LINE AND RUN THROUGH AN EXISTING LAKE THE
\nFOLLOWING DESCRIBED COURSE; NORTH 07 DEG. 09’06” EAST A DISTANCE OF 270.39
\nFEET; THENCE NORTH 89 DEG. 54″35′ EAST A DISTANCE OF 1456.43 FEET TO THE
\nPOINT OF BEGINNING.<\/p>\n
15<\/p>\n
EXHIBIT H<\/p>\n
VENDORS’ WARRANTIES – INITIAL BUILDING<\/p>\n
\n\n————————————————————————– ————————————–
\n Warranty Extended Warranties\/Cost
\n————————————————————————– ————————————–
\nDescription Duration Description Cost
\n———– ——– ———– —-
\n
\nStructural 4 years None available
\n includes framing, slab, walls, foundation and
\n masonry
\n includes all parts and labor<\/p>\nRoof 10 years Add’l 5 years $100,000
\n includes parts and labor includes parts
\n and labor<\/p>\n
HVAC Add’l 4 years $60,000
\n includes 1 year parts and labor includes parts
\n includes 5 years compressor and labor<\/p>\n
Elevator 1 year Add’l 4 years $20,000
\n includes parts and labor includes parts
\n and labor<\/p>\n
Plumbing 2 years Add’l 3 years $30,000
\n includes parts and labor includes parts
\n and labor<\/p>\n
Sprinklers 2 years Add’l 3 years $20,000
\n includes firepump, sprinkler piping, sprinkler heads includes items
\n minor repair of sprinklers heads and alarm bells specified in
\n under normal conditions original
\n warranty<\/p>\n
Electrical 2 years Add’l 3 years $30,000
\n includes parts and labor includes parts
\n and labor
\n————————————————————————– ————————————–
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT I<\/p>\n
CONFIDENTIALITY AGREEMENT<\/p>\n
THIS CONFIDENTIALITY AGREEMENT is made as of _________________, 19___,
\nby and between _______________________ (“Viewing Party”) and COACH
\nDISTRIBUTION COMPANY, a Delaware corporation (“Tenant”).<\/p>\n
W I T N E S S E T H<\/p>\n
WHEREAS, CTC INVESTMENTS, LTD., a Florida limited partnership
\n(“Landlord”), and Tenant have entered into a certain Agreement of Lease dated
\nas of October 13, 1994 (“Lease”) relating to certain property situated in the
\nJacksonville International Tradeport, Jacksonville, Florida (“Premises”);<\/p>\n
WHEREAS, the Lease provides that Landlord and persons specifically
\nauthorized by Landlord shall have the right to enter the Premises at any
\nreasonable time with reasonable notice to show the Premises to prospective
\npurchasers, tenants and secured lenders (“Viewing Parties”), provided that
\nthe Viewing Parties agree to respect the confidentiality of proprietary or
\nconfidential matters relating to Tenant or the Premises which are disclosed
\nto them when they are on the Premises exercising the right of entry provided
\nin the Lease (“Confidential Information”).<\/p>\n
NOW, THEREFORE, it is hereby mutually covenanted and agreed by and
\nbetween the parties hereto as hereinafter set forth.<\/p>\n
Section 1. Viewing Party agrees to respect the confidentiality of
\nConfidential Information. [Insert this sentence in Agreement signed by
\nLandlord: Landlord also agrees that it will not cause any Viewing Party to
\nenter within and view the Premises without obtaining from such Viewing Party a
\nconfidentiality agreement substantially in the form of this Agreement.] Viewing
\nParty agrees that it will not disclose any Confidential Information relating
\nto the design, manufacture or distribution of Tenant’s products. The
\nundertakings concerning nondisclosure set out in this Section 1 do not apply
\nto (i) any information in the public domain, (ii) any information obtained
\nfrom any source other than from Viewing Party’s personal entry into the
\nPremises, or (iii) any information disclosed pursuant to any applicable law
\nor any order or formal written request of any court or governmental agency.<\/p>\n
Section 2. The undertakings set out herein concerning nondisclosure
\napply, with respect to any Confidential Information obtained from any
\nparticular entry onto the Premises, for a period of two years after such
\nentry.<\/p>\n
Section 3. In the event of a dispute hereunder in the enforcement of the
\nterms of this Confidentiality Agreement, the prevailing party shall be
\nentitled to recover its reasonable attorneys fees and costs from the
\nnon-prevailing party.<\/p>\n
Section 4. This Agreement shall be governed by, and construed in
\naccordance with, the laws of the State of Florida.<\/p>\n
Section 5. This Confidentiality Agreement shall be binding upon and
\ninure to the benefit of the parties hereto and their respective successors
\nand assigns.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Confidentiality
\nAgreement as of the date first above written.<\/p>\n
VIEWING PARTY<\/p>\n
___________________________________<\/p>\n
By:________________________________<\/p>\n
TENANT<\/p>\n
COACH DISTRIBUTION COMPANY
\n a Delaware corporation<\/p>\n
By:________________________________<\/p>\n
________________________________
\n Print Name
\n Its___________________ President<\/p>\n
2<\/p>\n
EXHIBIT M<\/p>\n
ILLUSTRATIVE AMORTIZATION SCHEDULE
\n (MORTGAGE AMORTIZATION SCHEDULE 20 YEAR TERM – 9.50% INTEREST RATE)<\/p>\n
\n\n PRINCIPAL
\n MONTH OUTSTANDING
\n ———- ——————-
\n
\n COMMENCEMENT DATE == > 0 15,000,000
\n 1 14,978,930
\n 2 14,957,694
\n 3 14,936,289
\n 4 14,914,715
\n 5 14,892,970
\n 6 14,871,053
\n 7 14,848,963
\n 8 14,826,697
\n 9 14,804,256
\n 10 14,781,636
\n 11 14,758,838
\n 12 14,735,859*
\n 24 14,445,503*
\n 36 14,126,330*
\n 48 13,775,479*
\n 60 13,389,808*
\n 72 12,965,859*
\n 84 12,499,835*
\n 96 11,987,559*
\n 108 11,424,441*
\n 120 10,805,434*
\n 132 10,124,993*
\n 144 9,377,019*
\n 156 8,554,811*
\n 168 7,651,001*
\n 180 6,657,490*
\n 192 5,565,375*
\n 204 4,364,871*
\n 216 3,045,219*
\n 228 1,594,595*
\n 240 0
\n ========== ===================
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n————————<\/p>\n
* MONTHLY PRINCIPAL REDUCTION WILL OCCUR IN ACCORDANCE WITH THE PRINCIPLES
\nUNDERLYING THE FOREGOING IN THE MONTHS BETWEEN THOSE EXPLICITLY INDICATED IN THE
\nABOVE TABLE.<\/p>\n
Exhibit 10.6<\/p>\n
“Parcel B”<\/p>\n
AGREEMENT OF LEASE<\/p>\n
between<\/p>\n
CTC INVESTMENTS LIMITED<\/p>\n
(“Landlord”)<\/p>\n
and<\/p>\n
SARA LEE CORPORATION<\/p>\n
(“Tenant”)<\/p>\n
Dated as of October 23, 1998<\/p>\n
TABLE OF CONTENTS<\/p>\n
\n
\nARTICLE 1 CERTAIN DEFINITIONS……………………………………………………………….1<\/p>\nARTICLE 2 PREMISES AND TERM OF LEASE…………………………………………………………7<\/p>\n
ARTICLE 3 RENT…………………………………………………………………………….8<\/p>\n
ARTICLE 4 IMPOSITIONS……………………………………………………………………..11<\/p>\n
ARTICLE 5 MONTHLY DEPOSITS…………………………………………………………………13<\/p>\n
ARTICLE 6 LATE CHARGES…………………………………………………………………….14<\/p>\n
ARTICLE 7 INSURANCE……………………………………………………………………….14<\/p>\n
ARTICLE 8 USE OF INSURANCE PROCEEDS…………………………………………………………18<\/p>\n
ARTICLE 9 CONDEMNATION…………………………………………………………………….23<\/p>\n
ARTICLE 10 ASSIGNMENT, SUBLETTING AND MORTGAGES……………………………………………….28<\/p>\n
ARTICLE 11 LANDLORD’S AND TENANT’S PROPERTY…………………………………………………..33<\/p>\n
ARTICLE 12 REPAIRS; SERVICES………………………………………………………………..35<\/p>\n
ARTICLE 13 CHANGES, ALTERATIONS AND ADDITIONS…………………………………………………37<\/p>\n
ARTICLE 14 REQUIREMENTS OF PUBLIC AUTHORITIES AND OF
\n INSURANCE UNDERWRITERS AND POLICIES; OBLIGATIONS
\n UNDER OTHER SUPERIOR AGREEMENTS……………………………………………………40<\/p>\n
ARTICLE 15 LEASEHOLD IMPROVEMENT AGREEMENT……………………………………………………41<\/p>\n
ARTICLE 16 DISCHARGE OF LIENS; BONDS…………………………………………………………42<\/p>\n
ARTICLE 17 REPRESENTATIONS………………………………………………………………….43<\/p>\n
ARTICLE 18 LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC……………………………………….45<\/p>\n
ARTICLE 19 INDEMNIFICATION OF LANDLORD……………………………………………………….45<\/p>\n
ARTICLE 20 INDEMNIFICATION OF TENANT…………………………………………………………47<\/p>\n
ARTICLE 21 RIGHT OF INSPECTION………………………………………………………………49<\/p>\n
i<\/p>\n
ARTICLE 22 LANDLORD’S RIGHT TO PERFORM TENANT’S COVENANTS………………………………………50<\/p>\n
ARTICLE 23 NO TERMINATION OR ABATEMENT OF RENTAL………………………………………………51<\/p>\n
ARTICLE 24 PERMITTED USE; NO UNLAWFUL OCCUPANCY;
\n OPERATION OF THE PREMISES…………………………………………………………52<\/p>\n
ARTICLE 25 EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,
\n REMEDIES, ETC. ………………………………………………………………….53<\/p>\n
ARTICLE 26 NOTICES…………………………………………………………………………61<\/p>\n
ARTICLE 27 SIGNAGE…………………………………………………………………………62<\/p>\n
ARTICLE 28 [INTENTIONALLY OMITTED]…………………………………………………………..63<\/p>\n
ARTICLE 29 AMENDMENTS TO CC&R’S……………………………………………………………..63<\/p>\n
ARTICLE 30 CERTAIN PROVISIONS RELATING TO SECURED LOANS………………………………………..64<\/p>\n
ARTICLE 31 ENVIRONMENTAL MATTERS…………………………………………………………….65<\/p>\n
ARTICLE 32 CERTIFICATES BY LANDLORD AND TENANT………………………………………………..69<\/p>\n
ARTICLE 33 CONSENTS AND APPROVALS……………………………………………………………70<\/p>\n
ARTICLE 34 SURRENDER AT END OF TERM OR RENEWAL TERMS…………………………………………..71<\/p>\n
ARTICLE 35 ENTIRE AGREEMENT…………………………………………………………………72<\/p>\n
ARTICLE 36 QUIET ENJOYMENT………………………………………………………………….72<\/p>\n
ARTICLE 37 [INTENTIONALLY OMITTED]…………………………………………………………..73<\/p>\n
ARTICLE 38 INVALIDITY OF CERTAIN PROVISIONS…………………………………………………..73<\/p>\n
ARTICLE 39 FINANCIAL REPORTS………………………………………………………………..73<\/p>\n
ARTICLE 40 RECORDING OF MEMORANDUM…………………………………………………………..74<\/p>\n
ARTICLE 41 CERTAIN MATTERS PERTAINING TO PARCEL A……………………………………………..74<\/p>\n
ARTICLE 42 MISCELLANEOUS……………………………………………………………………75<\/p>\n
ARTICLE 43 LIMITATION OF LIABILITY…………………………………………………………..78<\/p>\n
ii<\/p>\n
ARTICLE 44 SUCCESSORS AND ASSIGNS……………………………………………………………79<\/p>\n
ARTICLE 45 CERTAIN CONDITIONS PRECEDENT………………………………………………………79<\/p>\n
ARTICLE 46 RENEWAL OPTIONS………………………………………………………………….83<\/p>\n
ARTICLE 47 [INTENTIONALLY OMITTED]…………………………………………………………..85<\/p>\n
ARTICLE 48 LANDLORD DEFAULTS………………………………………………………………..85<\/p>\n
ARTICLE 49 TITLE INSURANCE………………………………………………………………….86
\n<\/c><\/s><\/table>\n
iii<\/p>\n
EXHIBITS<\/p>\n
\n\n First Reference
\nExhibit Exhibit Caption in Lease
\n——- ————— —————
\n
\n A Description of Parcel A Section 1<\/p>\n B Title Matters Section 1<\/p>\n
C Leasehold Improvement Agreement Section 1<\/p>\n
D Description of Parcel B Section 1<\/p>\n
D-1 Description of Parcel B-1 Section 1<\/p>\n
E Description of Parcel C Section 1<\/p>\n
F Omitted<\/p>\n
G Description of Parcel D Section 1<\/p>\n
H Warranties Section 12.4<\/p>\n
I Confidentiality Agreement Section 21.1<\/p>\n
J Omitted<\/p>\n
K Estoppel Letter Section 32.1<\/p>\n
L Environmental Indemnity Section 30.3<\/p>\n
M Illustrative Amortization
\n Schedule Section 9.1(d)<\/p>\n
N Preliminary Site Drawing Section 1
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
iv<\/p>\n
LEASE<\/p>\n
This AGREEMENT OF LEASE is made and entered into as of October 23,
\n1998, by and between CTC INVESTMENTS LIMITED, a Florida limited partnership
\nhaving an office at 9665 Wilshire Blvd., Suite 200, Beverly Hills, California
\n90212 (“LANDLORD”), and SARA LEE CORPORATION, a Maryland corporation, which
\nis successor by merger to Coach Distribution Company, a Delaware corporation,
\nhaving an office at 410 Commerce Boulevard, Carlstadt, New Jersey 07072
\n(“TENANT”).<\/p>\n
W I T N E S S E T H:<\/p>\n
A. Landlord and Tenant’s predecessor are parties to that certain
\nLease dated as of October 13, 1994 (which, as such document may heretofore
\nhave been amended, and as it may be amended, modified or restated from time
\nto time hereafter, is referred to herein as the “ORIGINAL LEASE”) which
\nrelates primarily to certain premises (“PARCEL A”) described therein and,
\namong other things, gives Tenant certain rights relating to the Premises,
\nparticularly as set out in Article 45 of the Original Lease. Tenant has
\nexercised the First Parcel B Expansion Option (that term being defined for
\npurposes hereof as it is defined in the Original Lease) as provided in
\nSection 45.1 of the Original Lease. This Lease sets out all of the parties’
\nagreements with respect to that First Parcel B Expansion Option and it
\ncompletely replaces and supersedes Section 45.1 of the Original Lease, which
\nSection 45.1 the parties hereby agree and declare is terminated for all
\npurposes and is of no further force or effect.<\/p>\n
B. It is hereby mutually covenanted and agreed by and between the
\nparties hereto that this Agreement of Lease is made and entered into by them
\nupon the terms, covenants and conditions herein set forth, and that for good
\nand valuable consideration (the receipt and sufficiency of which are
\nacknowledged by both of them) they agree as follows.<\/p>\n
ARTICLE 1
\n CERTAIN DEFINITIONS<\/p>\n
The terms defined in this ARTICLE 1 shall, for all purposes of this
\nLease, have the following meanings:<\/p>\n
“AFFILIATE,” when used with respect to any Person (hereinafter
\ndefined), shall mean any other Person which, directly or indirectly,
\ncontrols, is controlled by or is under common control with such Person. For
\npurposes of the foregoing definition, “CONTROL” (including “control by” and
\n“under common control with”) shall mean ownership of fifty percent (50%) or
\nmore of each class of the authorized and outstanding stock of a corporation
\nand fifty percent (50%) or more of all of the interests in a partnership,
\ntrust or other business entity (determined without regard to cash flow
\npreferences and similar items).<\/p>\n
“ASSOCIATION” shall mean the Jacksonville International Tradeport
\nOwner’s Association, Inc., a Florida non-profit corporation, and its
\nsuccessors and assigns.<\/p>\n
“BUILDINGS” shall mean and include, collectively, at any time, all
\nbuildings (including, without limitation, footings, foundations, building
\nsystems, and the interior of such buildings), structures, Equipment
\n(hereinafter defined), fixtures, and other improvements and appurtenances of
\nevery kind and description then erected, constructed, placed or existing upon
\nthe Land (hereinafter defined). “BUILDING” shall mean and refer to any one of
\nthe Buildings.<\/p>\n
“BUSINESS DAYS” shall mean all days which are not a Saturday, Sunday
\nor a day observed as a legal holiday by either the State of Florida, the
\nState of California or the federal government.<\/p>\n
“CAPITAL IMPROVEMENT” shall have the meaning provided in SECTION
\n13.1.<\/p>\n
“CC&R’S” shall mean and include, collectively, the following: City
\nof Jacksonville Resolutions 87-1009-572, 88-448-463, 88-1223-541 and
\n91-394-202; the Jacksonville International Tradeport (Phase One – Northeast
\nQuadrant) Declaration of Covenants, Conditions, Restrictions and Easements
\nmade as of July 24, 1990 by Wilma\/ Skyland Joint Venture, Ltd., as amended
\nand recorded against the Premises in the real estate records of Duval County,
\nFlorida, from time to time; Notice of Adoption of a Development Order
\nrecorded in Volume 6644, page 922, of the real estate records of Duval
\nCounty, Florida; Amendment to Preliminary Development Agreement recorded in
\nVolume 6566, page 708, of the real estate records of Duval County, Florida;
\nthe Jacksonville International Tradeport Development Guidelines as in effect
\nfrom time to time; and any other instru ment imposing conditions, covenants,
\neasements or restrictions on all or any part of the Parcels (defined
\nhereinafter) or the use thereof, which either are in effect on the effective
\ndate of this Lease (hereinafter defined) or are identified on EXHIBIT B
\nattached hereto, as such documents or instruments be amended, modified or
\nrestated from time to time.<\/p>\n
“COMMENCEMENT DATE” shall have the meaning ascribed to it in the
\nLeasehold Improvement Agreement.<\/p>\n
“CONSTRUCTION AGREEMENTS” shall mean and include all contracts or
\nagreements for construction, Restoration (hereinafter defined), Capital
\nImprovement, rehabilitation, alteration, conversion, extension, repair or
\ndemolition performed pursuant to this Lease.<\/p>\n
“CREDIT RATING” shall, at any time, mean, with respect to any
\nPerson, the rating then given by Moody’s Investors Service or Standard & Poor’s Corp., as the case may be, or their respective successors, to the
\nlongest-term unsecured, unsubordinated debt issue (which shall have at least
\nten years remaining to its maturity at that time) of such Person then
\noutstanding (but if such Person does not then have outstanding any debt issue
\nhaving at least ten years remaining to maturity which is then rated by
\nMoody’s or Standard & Poor’s, it shall be deemed to have no Credit Rating for
\npurposes of this Lease).<\/p>\n
2<\/p>\n
“DECLARATION OF EASEMENTS” shall mean that certain Declaration of
\nEasements, Shared Use and Maintenance Agreement dated as of October __, 1998,
\nrelating to the Parcels and executed by Landlord (in its capacity as the
\nowner of the Parcels) and joined in or consented to by Tenant and one or more
\nother persons, as the same may be amended, modified, supplemented or restated
\nfrom time to time.<\/p>\n
“DEFAULT” shall mean any condition or event which constitutes or,
\nafter notice or lapse of time, or both, would constitute an Event of Default
\n(hereinafter defined).<\/p>\n
“EQUIPMENT” shall mean and include all fixtures, equipment and
\npersonal property of any kind which is or becomes incorporated in or attached
\nto and used or usable in the use or operation of the Premises at any time
\nduring the Term or any Renewal Term (hereinafter defined), excluding,
\nhowever, any of the foregoing which are owned, leased, or used by (a) tenants
\nor occupants of the Premises (including, without limitation, Tenant or an
\nAffiliate of Tenant) which such tenants or occupants have the express right
\nto remove pursuant to the terms of this Lease (including, without limitation,
\nTenant’s Property [hereinafter defined]), (b) contractors engaged in
\nimproving or maintaining the same, or (c) utility companies providing
\nutilities to all or any part of the Parcels.<\/p>\n
“EXPIRATION DATE” shall have the meaning provided in ARTICLE 2.<\/p>\n
“FINAL INSPECTION” shall mean, with respect to any Building or
\nimprovement, an inspection thereof made by the appropriate department or
\nagency of the City of Jacksonville, Florida as a result of which Tenant may
\nlegally occupy and use such Building or improvement.<\/p>\n
“FINAL PLANS” shall mean, with respect to any Building or other
\nstructure, the drawings and specifications therefor filed with the Building
\nDepartment of the City of Jacksonville, Florida (or its successor or
\nsubstitute under applicable laws or ordinances), on the basis of which the
\nFinal Inspection thereof will be done.<\/p>\n
“FISCAL YEAR” shall mean a twelve-month period commencing July 1 and
\nending June 30, any portion of which occurs during the Term or any Renewal
\nTerm.<\/p>\n
“FIXED RENT” shall have the respective meanings provided in SECTION
\n3.1(A) or ARTICLE 46 hereof.<\/p>\n
“GOVERNMENTAL AUTHORITY (OR AUTHORITIES)” shall mean and include the
\nUnited States of America, the State of Florida, the County of Duval, the City
\nof Jacksonville, and any agency, depart ment, commission, board, bureau,
\ninstrumentality or political subdivision of any of the foregoing, now
\nexisting or hereafter created, having jurisdiction over the Parcels or any
\nportion thereof, or any officer or official of any of the foregoing acting in
\nhis official capacity.<\/p>\n
“IMPOSITIONS” shall have the meaning provided in SECTION 4.1.<\/p>\n
3<\/p>\n
“INITIAL BUILDING” shall mean the Building which Landlord is to
\ncause to be constructed on the Land prior to the Commencement Date, for which
\nTenant has heretofore reviewed and approved a coordination set of
\narchitectural drawings and specifications prepared by Landlord’s architect.<\/p>\n
“INITIAL TERM” shall mean the period commencing on the Commencement
\nDate and expiring at 11:59 p.m. local Jacksonville, Florida, time on the date
\n(the “INITIAL EXPIRATION DATE”) which is the first to occur of June 30, 2015
\nand, if earlier, the date on which this Lease expires or is canceled or
\nterminated pursuant to any of the conditions, provisions or covenants of this
\nLease or pursuant to law.<\/p>\n
“LAND” shall mean, collectively, Parcel B-1 and Parcel B (both terms
\nare defined hereinafter).<\/p>\n
“LANDLORD” shall mean CTC Investments Limited, a Florida limited
\npartnership, and its successors and assigns; provided however, that from and
\nafter such time (if any) as Landlord’s interest in and to this Lease shall be
\nassigned or transferred outright (and not just for collateral security
\npurposes) in accordance with the provisions of this Lease, then from and
\nafter the effective date of such outright assignment or transfer and until
\nthe next permitted assignment or transfer (if any) occurs, the term
\n“LANDLORD” shall mean the permitted assignee or transferee.<\/p>\n
“LATE CHARGE RATE” shall have the meaning provided in ARTICLE 6.<\/p>\n
“LEASE” shall mean this Agreement of Lease as it may from time to
\ntime be amended, modified, extended, restated or renewed.<\/p>\n
“LEASE YEAR” shall mean, in the case of the first Lease Year, the
\nperiod beginning on the Commencement Date and ending on the day immediately
\npreceding the first anniversary of the Commencement Date. Each subsequent
\nLease Year shall mean a twelve-month period beginning on an anniversary of
\nthe Commencement Date (so that, for example, the second Lease Year shall mean
\nand refer to the 12-month period beginning on the first anniversary of the
\nCommencement Date and ending on the day immediately preceding the second
\nanniversary of the Commencement Date), except that the last Lease Year may be
\nless than twelve months if this Lease expires or terminates on a date which
\nis not the day immediately preceding an anniversary of the Commencement Date,
\nand in such case any annual amounts payable under this Lease (including,
\nwithout limitation, Fixed Rent) shall be prorated for such last Lease Year.<\/p>\n
“LEASEHOLD IMPROVEMENT AGREEMENT” shall mean that certain agreement
\nsubstantially in the form of EXHIBIT C attached hereto, which Landlord and
\nTenant have executed or will execute substantially simultaneously with the
\nexecution of this Lease.<\/p>\n
“NOTICE” shall have the meaning provided in SECTION 26.1.<\/p>\n
“OPTION” shall mean and refer to a Renewal Option.<\/p>\n
4<\/p>\n
“ORIGINAL LEASE” shall have the meaning provided in Recital A.<\/p>\n
“PARCEL A” shall mean the parcel of land described on EXHIBIT A
\nattached hereto.<\/p>\n
“PARCEL A BUILDING” shall mean the building which, on the date of
\nthis Lease, is situated on Parcel A, an approximate drawing showing the
\nlocation of the perimeter walls of which is attached hereto as EXHIBIT N
\nattached hereto.<\/p>\n
“PARCEL B” shall mean the parcel of land described on EXHIBIT D
\nattached hereto.<\/p>\n
“PARCEL B-1” shall mean the parcel of land described on EXHIBIT D-1
\nattached hereto.<\/p>\n
“PARCEL C” shall mean the parcel of land described on EXHIBIT E
\nattached hereto.<\/p>\n
“PARCEL D” shall mean the parcel of land described on EXHIBIT G
\nattached hereto.<\/p>\n
“PARCELS” shall mean, collectively, at any time, Parcels A, B, B-1,
\nC and D and any Buildings and other improvements then situated thereon.<\/p>\n
“PARKING\/DRIVEWAY FACILITIES” shall mean, at any time, the South
\nAccess Roadway and such other parking lots and driveways (if any) as are then
\nin existence and are necessary for the use and operation of, or access to,
\nthe Buildings, and which are located on the Parcels but outside the
\nboundaries of the Land, and which Landlord and Tenant have identified, in a
\nwriting signed by both of them, as being Parking\/Driveway Facilities under
\nand for purposes of this Lease. Parking\/Driveway Facilities will initially
\ninclude (i) the portions situated on Parcel D of (A) the cross-hatched and
\nshaded area adjacent to and immediately to the south of the presently
\nintended site for the Initial Building and (B) the strip of land extending
\nsouth and westward from such cross- hatched and shaded area and indicated as
\nan intended driveway, and (ii) the portion situated on Parcel B of the
\ncross-hatched and shaded area in the northeast portion of Parcel B identified
\nas “Parcel B Parking”, all as shown on the preliminary site drawing attached
\nhereto as EXHIBIT N. Such initial Parking\/Driveway Facilities are referred to
\nherein as the “INITIAL PARKING\/DRIVEWAY FACILITIES”; and the strip of land
\ndescribed in clause (ii) of the preceding sentence has, for the present time,
\nbeen designated by Landlord as the South Access Roadway (defined generally
\nhereinbelow).<\/p>\n
“PERSON” shall mean and include an individual, corporation,
\npartnership, joint venture, estate, trust, unincorporated association,
\ntenancy-in-common, other business entity, Governmental Authority, and any
\nfederal, state, county or municipal government or any bureau, department,
\nauthority, agency or officer thereof.<\/p>\n
“PREMISES” shall mean the Land and the Initial Building.<\/p>\n
“RENEWAL OPTION” shall have the meaning provided in ARTICLE 46.<\/p>\n
5<\/p>\n
“RENEWAL TERM” shall have the meaning provided in ARTICLE 46.<\/p>\n
“RENTABLE SQUARE FEET” shall mean, with respect to any rentable
\nspace in a Building, the total floor area of the space in the Building,
\nexpressed in square feet, measured to the outside surface of the Building,
\nbased on the as-built drawings of the Building, determined by the Architect
\nin accordance with professional standards of measurement for similar type
\nbuildings (to the extent applicable).<\/p>\n
“RENTAL” shall have the meaning provided in SECTION 3.4.<\/p>\n
“REQUIREMENTS” shall have the meaning provided in SECTION 14.1(a).<\/p>\n
“RESTORATION” shall have the meaning provided in SECTION 8.1(c).<\/p>\n
“RESTORATION FUNDS” shall have the meaning provided in SECTION
\n8.2(a).<\/p>\n
“RESTORE” shall have the meaning provided in SECTION 8.1(c).<\/p>\n
“SECURED LENDER” shall mean a lender which is the holder or
\nbeneficiary of a Secured Loan (or any assignee thereof) which, in the case of
\na construction loan, shall be an institutional lender.<\/p>\n
“SECURED LOAN” shall mean any loan of any kind (including, without
\nlimitation, any renewal, extension, or modification of any Secured Loan, and
\nany Secured Loan which refinances any Secured Loan) which is secured by any
\nmortgage, deed of trust or other security instrument (whether or not
\nrecorded) which constitutes or creates a lien, encumbrance or security
\ninterest on any portion of or interest in Landlord’s interest in and to the
\nPremises; provided, however, that the aggregate principal amount outstanding
\nunder Secured Loans shall not at any time exceed the sum of Ten Million
\nDollars ($10,000,000.00) plus the aggregate Total Construction Cost (if any)
\nin respect of all Restorations (to the extent, if any, paid for with Secured
\nLoan proceeds or Landlord’s own funds).<\/p>\n
“SOUTH ACCESS ROADWAY” shall mean that portion which lies entirely
\nwithin Parcel D, of a 3-lane roadway or other right of way that will provide
\naccess from the Land across Parcel D to Stone Drive, the specific location of
\nwhich South Access Roadway may be designated, or relocated from time to time,
\nby Landlord or the owner of Parcel D, provided that (i) any location to which
\nit is moved provides Tenant with reasonably equivalent access and (ii) unless
\nsuch move is either reasonably necessary to accommodate Tenant’s exercise of
\nan Option or is made at Tenant’s written request, Landlord shall construct at
\nits expense a new roadway substantially equivalent to the one it replaced
\n(including curb, gutter, and median strips, if any) and pay the cost of
\nTenant’s moving its sign from the former roadway.<\/p>\n
“TAXES” shall have the meaning provided in SECTION 4.3(a).<\/p>\n
6<\/p>\n
“TENANT” shall mean Sara Lee Corporation, a Maryland corporation;
\nprovided, however, that after such time (if any) as all of Tenant’s right,
\ntitle and interest in, to and under this Lease and the leasehold estate
\nhereby created shall have been assigned or transferred in accordance with the
\nterms of this Lease, then from and after the effective date of such
\nassignment or transfer and the assumption hereof by a permitted assignee
\npursuant to a written assignment agreement satisfactory to Landlord and all
\nSecured Lenders and the release of the assigning Tenant from its obligations
\nhereunder as provided in SECTION 10.2 below, and until the next permitted
\nassignment or transfer (if any), the term “Tenant” shall mean the permitted
\nassignee or transferee.<\/p>\n
“TENANT’S PROPERTY” shall have the meaning provided in SECTION 11.2.<\/p>\n
“TERM” shall have the meaning provided in ARTICLE 2.<\/p>\n
“TOTAL CONSTRUCTION COST” shall have the meaning provided in ARTICLE
\n45.<\/p>\n
“UNAVOIDABLE DELAYS” shall mean actual delays suffered as a direct
\nresult of (i) strikes, lockouts, acts of God, enemy action, civil riots or
\ninability to obtain labor or materials due to governmental restrictions, (ii)
\nthe wrongful failure of a party hereto to grant any consent or approval to
\nthe other, (iii) fire or other casualty or other causes beyond the control of
\nthe obligated party, and (iv) the breach or default of the other party to
\nthis Lease in the performance of its obligations under this Lease, or other
\nact of such other party or any Person acting or claiming by, through or under
\nsuch other party, which directly prevents the obligated party from performing
\nits obligation hereunder; provided, however, that in each instance the party
\nclaiming unavoidable delay shall have notified in writing the other party
\nthereof not later than five (5) Business Days after the incident causing the
\ndelay shall have occurred and become known to the claiming party.<\/p>\n
ARTICLE 2
\n PREMISES AND TERM OF LEASE<\/p>\n
Landlord does hereby demise and lease the Premises to Tenant for the
\nTerm, and grants to Tenant, its guests, invitees and licensees, for the Term,
\nall easements, rights and privileges appurtenant thereto, and Tenant does
\nhereby lease and accept the Premises from Landlord, all subject to the
\nfollowing matters (collectively, the “PERMITTED EXCEPTIONS”): the matters set
\nforth on EXHIBIT B attached hereto and made a part hereof; the Declaration of
\nEasements; and, such other matters which either (i) result from the acts of
\nTenant or any Person acting or claiming by, through or under Tenant or (ii)
\nhave been or may hereafter be approved by Tenant (Tenant agrees that it will
\nnot withhold or delay its approval unreasonably).<\/p>\n
TO HAVE AND TO HOLD unto Tenant for the Term. For all purposes of
\nthis Lease, “TERM” means the period commencing on the Commencement Date and
\nexpiring at 11:59 p.m. local Jacksonville, Florida, time on the date (the
\n“EXPIRATION DATE”) which is the first to occur of (1) the last to occur of
\n(a) the Initial Expiration Date, (b) the day preceding the tenth anniversary
\nof the <\/p>\n
7<\/p>\n
commencement of the First Renewal Term if Tenant exercises the First Renewal
\nOption but not the Second Renewal Option, and (c) the day preceding the tenth
\nanniversary of the commencement of the Second Renewal Term if Tenant
\nexercises both Renewal Options pursuant to ARTICLE 46, and (2) such earlier
\ndate upon which the term of this Lease shall expire or be canceled or
\nterminated pursuant to any of the conditions, provisions or covenants of this
\nLease or pursuant to law. Promptly following the Commencement Date, and also
\npromptly following the due exercise of any Renewal Option, the parties hereto
\nshall enter into an agreement or memorandum in recordable form and otherwise
\nreasonably satisfactory to the parties hereto, confirming (as the case may
\nbe) either the Commencement Date or the Expiration Date as then known to the
\nparties.<\/p>\n
Landlord also hereby grants to Tenant a non-exclusive easement
\n(which Landlord may, at any time and from time to time, on reasonable notice
\nto Tenant, unilaterally relocate to any other location within the Parcels
\nthat will provide Tenant with a reasonably equivalent substitute) to use the
\nParking\/Driveway Facilities for and during the Term. Landlord retains, and
\nreserves the right to transfer, any and all development rights applicable to
\nthe Premises which are not utilized in connection with the Initial Building,
\nexcept that Landlord will not transfer such of those retained development
\nrights (if any) as may be necessary to permit the construction of additional
\nBuildings for Tenant pursuant to those Expansion Options under the Original
\nLease as have not lapsed or terminated or been fully exercised and satisfied.<\/p>\n
ARTICLE 3
\n RENT<\/p>\n
SECTION 3.1.<\/p>\n
(a) For and with respect to the Initial Term, Tenant shall
\npay to Landlord with respect to the Premises rent (“FIXED RENT”) in an amount
\nequal to the sum of the Total Construction Cost and the additional amount
\nwhich, if the Fixed Rent were paid in equal monthly installments on the first
\nday of each full or partial calendar month during the Initial Term of this
\nLease (I.E., to the Initial Expiration date, and without regard to any
\npossible renewals or extensions of the Term) would be sufficient to provide
\nLandlord with a return of ten and one-half percent (10.5%) per annum on the
\nTotal Construction Cost amount. When the actual Total Construction Cost
\namount has finally been ascertained, Landlord will notify Tenant of the
\namount thereof and of the total amount, and the monthly installment amount,
\nof the Fixed Rent, and Tenant will acknowledge the same in writing to
\nLandlord.<\/p>\n
(b) In the event Tenant duly exercises any of the Renewal
\nOptions, Tenant shall pay Fixed Rent for the Premises for the applicable
\nRenewal Term as determined in accordance with, and provided in, ARTICLE 46.<\/p>\n
(c) Fixed Rent for the Initial Term shall be due and
\npayable in equal monthly installments in advance, on the Commencement Date
\nand on the first day of each calendar month thereafter during the Initial
\nTerm, and (as to any Renewal Term) on the first day of such Renewal Term and
\non the first day of each calendar month thereafter during such Renewal Term.
\nThe monthly installment of Fixed Rent for any partial calendar month shall be
\nprorated based on the number of actual days in such partial calendar month.
\nExcept as may be provided in SECTIONS 8.1(b), <\/p>\n
8<\/p>\n
9.1(a) or 23.3, any portion of the total Fixed Rent for the Initial Term
\nwhich has not been paid on the penultimate day of the Initial Term shall be
\npaid in full on the last day of the Initial Term. Except as may be provided
\nin SECTIONS 8.1(b), 9.1(a) or 23.3, any portion of the total Fixed Rent for
\nany Renewal Term which has not been paid on the penultimate day of such
\nRenewal Term shall be paid in full on the last day of such Renewal Term.<\/p>\n
SECTION 3.2.<\/p>\n
(a) Fixed Rent (as the amount of such Fixed Rent may be
\nadjusted as expressly provided in SECTION 9.3(c) and Article 46) shall be
\nabsolutely net to Landlord without any abatement, counterclaim, offset,
\nexception, qualification, or (except such as is expressly provided for in
\nSECTION 48.2 hereof) deduction or reduction whatsoever.<\/p>\n
(b) Except for debt service on any indebtedness owed by
\nLandlord to a Person other than Tenant, and except as expressly required to
\nbe paid by Landlord or another Person by the express provisions of any
\nprovision herein, Tenant shall pay all costs, expenses and charges of any and
\nevery kind and nature whatsoever (including, without limitation, Impositions
\n[defined hereinafter], Taxes and insurance) of, for or relating to the
\nPremises or the ownership, use, opera tion, management, maintenance and
\nrepair thereof, which arise or become due or payable for, during, with
\nrespect to, or after (but attributable to a period falling within) the Term,
\neven though Tenant may not own, lease, or have any right to use or occupy
\nsome or all of such Parcels. Imposi tions, Taxes, and all other amounts
\npayable by Tenant hereunder shall be prorated for any partial Lease Year
\nwithin the Term.<\/p>\n
SECTION 3.3. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 3.4. All amounts of any and every kind whatsoever payable by
\nTenant pursuant to this Lease (collectively, “RENTAL”), including (without
\nlimitation) Fixed Rent, Impositions and all other amounts payable by Tenant
\nunder this Lease (other than Late Charges) shall constitute rent under this
\nLease, and all of the portions, amounts or components of Rental which are to
\nbe paid to Landlord pursuant to the provisions of this Lease shall be paid by
\nwire transfer of immediately available funds in accordance with written wire
\ntransfer instructions provided by Landlord to Tenant from time to time, and
\nall of the portions, amounts or components of Rental which are payable to any
\nPersons other than Landlord shall be paid in full to the proper payees
\nthereof, timely and by the time provided therefor in this Lease (or if the
\ntime for such payments is not expressly provided for in this Lease, then
\nbefore the same becomes delinquent or past-due or any late payment penalty or
\ncharge becomes due with respect thereto. All Rental paid under this Lease to
\nPersons other than Landlord who are the proper payees thereof shall be, and
\nbe construed as, payments made by Tenant for the benefit of Landlord. Tenant
\nshall pay all Rental provided for in this Lease notwithstanding any casualty,
\ndestruction of the Buildings and other improvements, act of God, or any other
\nevent or occurrence of any kind and notwithstanding that Tenant does not own,
\nlease, occupy or use (or have any right to acquire, lease, occupy or use)
\nsome or all of the Parcels, and in no event whatsoever <\/p>\n
9<\/p>\n
shall there ever be any diminution or abatement of any Rental except in the
\nspecific circumstances, and to the specific extent, if any, expressly and
\nspecifically provided in this Lease.<\/p>\n
SECTION 3.5. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 3.6. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 3.7. No payment by Tenant or receipt or acceptance by
\nLandlord of a lesser amount than the correct amount of any Rental shall be
\ndeemed to be other than a payment on account, nor shall any endorsement or
\nstatement on any check or any letter accompanying any check or payment be
\ndeemed an accord and satisfaction, and Landlord may accept such check or
\npayment without prejudice to Landlord’s right to recover the balance or
\npursue any other remedy in this Lease or at law provided.<\/p>\n
SECTION 3.8. If any of the Fixed Rent, Impositions or any other
\nRental payable under the terms and provisions of this Lease shall be or
\nbecome uncollectible, reduced or required to be refunded because of any rent
\ncontrol or similar act or law enacted by a Governmental Authority, Tenant
\nshall enter into such agreements and take such other steps (without
\nadditional expense or liability to Tenant) as Landlord may reasonably request
\nand as may be legally permissible to permit Landlord to collect the maximum
\nrents which from time to time during the continuance of such legal rent
\nrestriction may be legally permissible (and not in excess of the amounts
\nreserved therefor under this Lease). Upon the termination of such legal rent
\nrestriction, (a) the Rental in question shall become and thereafter be
\npayable in accordance with the amounts reserved herein for the periods
\nfollowing such termination, and (b) if permitted by law, Tenant shall pay to
\nLandlord, to the maximum extent legally permissible, an amount equal to (i)
\nthe amount of the Rental in question which would have been paid pursuant to
\nthis Lease but for such legal rent restriction less (ii) the amounts with
\nrespect to such Rental paid by Tenant during the period such legal rent
\nrestriction was in effect, plus interest on the net excess of (i) over (ii)
\nat a reasonable rate agreed upon by the parties (and absent such agreement,
\nat the rate of 8% per annum).<\/p>\n
SECTION 3.9. Tenant may terminate this Lease if Tenant delivers to
\nLandlord, before the time Landlord has commenced any construction (including,
\nwithout limitation, any site work or excavation) of any Improvements of any
\nkind on the Land, both (i) a written notice (a “TERMINATION NOTICE”),
\nsatisfactory in form and substance to Landlord (acting reasonably), in which
\nTenant clearly, irrevocably and unconditionally (A) withdraws and revokes the
\nExpansion Notice delivered to Landlord pursuant to Section 45.4 of the
\nOriginal Lease, (B) releases, waives, relinquishes and terminates any and all
\nrights of Tenant (including, without limitation, any and all rights to any
\nfuture, further or additional exercise of its option to lease the Land) to,
\nunder or concerning the Option to which such Expansion Notice related, and
\n(C) agrees to pay and reimburse to Landlord on demand all amounts, costs,
\nexpenses, losses (but not the loss of profits or gains Landlord anticipated
\nearning from the expansion), and liabilities of any and every kind whatsoever
\n(including, without limitation, reasonable compensation to Landlord for the
\ntime, effort and work expended by its officers and employees, and also
\nincluding all fees, expenses, contract amounts, damages and other amounts
\npaid <\/p>\n
10<\/p>\n
or payable to any architects, appraisers, consultants, engineers,
\ncontractors, attorneys, accountants, Governmental Authorities, or others)
\nwhich Landlord may pay or incur or become liable for, or may have paid or
\nincurred or become liable for, directly or indirectly for or in connection
\nwith such Expansion Notice or Landlord’s response thereto (and Tenant’s
\nobligations and liabilities under and with respect to, and as provided for
\nin, any such Termination Notice shall constitute obligations of Tenant to
\nLandlord under this Lease), and (ii) payment to Landlord of an amount in cash
\n(which may be in the form of a certified check or bank cashier’s check
\npayable to Landlord), or delivery to Landlord of an irrevocable letter of
\ncredit issued to Landlord by an issuer satisfactory to Landlord and being in
\nform and substance satisfactory to Landlord, in such amount as Landlord in
\nits sole discretion may determine is a reasonable estimate of the maximum
\ntotal costs and amounts for which Tenant may be or become obligated to pay
\nLandlord pursuant to Tenant’s undertaking in such Termination Notice, as an
\nadvance security deposit on account of Tenant’s obligations under such
\nTermination Notice. (Landlord will refund to Tenant the amount, if any, by
\nwhich such security deposit [if made in the form of cash]exceeds the total
\namount owed by Tenant with respect thereto, promptly after Landlord
\ndetermines such total amount.)<\/p>\n
ARTICLE 4
\n IMPOSITIONS<\/p>\n
SECTION 4.1. Tenant covenants and agrees to pay or cause to be paid,
\nas hereinafter provided, at Tenant’s option either to Landlord or to the
\nGovernmental Authority or other Person imposing the same or to whom the same
\nmay be due and payable, all of the following items (collectively,
\n“IMPOSITIONS”) which accrue in or relate to any period beginning on or after
\nthe Commencement Date (except to the extent, if any, that any of such items
\nare paid by the Association): (a) Taxes (defined hereinafter) and real
\nproperty assessments, (b) personal property taxes, (c) occupancy and rent
\ntaxes, (d) water, water meter and sewer rents, rates and charges, (e)
\nexcises, (f) levies, (g) license and permit fees, (h) service charges with
\nrespect to police protection, fire protection, common area maintenance,
\nsanitation and water supply, if any, (i) Association assessments and charges,
\nand (j) fines, penalties and other similar or like charges applicable to the
\nforegoing and any interest or costs with respect thereto (only to the extent
\nincurred by reason of Tenant’s wrongful act or omission or Tenant’s failure
\ntimely to pay the same or otherwise fully and timely to comply with any
\nprovision of this Lease), to the extent that at any time during the Term,
\nsuch items listed in clauses (a) through (j) of this SECTION 4.1 are
\nassessed, levied, confirmed, imposed upon, or would grow or become due and
\npayable out of or in respect of, or would be charged with respect to: (A) the
\nPremises or any personal property, Equipment or other facility used in the
\noperation thereof, (B) any document (other than this Lease) by which Tenant
\ndirectly or indirectly creates or transfers any interest or estate in the
\nPremises, (C) the use and occupancy of the Premises by Tenant or any Person
\nby, through or under Tenant, or (D) the Rental (or any portion thereof)
\npayable by Tenant hereunder. Each such Imposition, or installment thereof,
\nduring the Term shall be paid at least five (5) days before the last day the
\nsame may be paid without fine, penalty, interest or additional cost;
\nprovided, however, that if, by law, any Imposition may at the option of the
\ntaxpayer be paid in installments (whether or not interest shall accrue on the
\nunpaid balance of such Imposition), Tenant may exercise the option to pay the
\nsame in such installments and shall be responsible for the payment of such
\ninstallments only <\/p>\n
11<\/p>\n
(including, without limitation, any interest or late payment charges payable
\nthereon or in connection therewith); provided, however, that all such
\ninstallment payments relating to periods prior to the date definitely fixed
\nfor the expiration of the Term shall be made prior to the Expiration Date.<\/p>\n
SECTION 4.2. If Tenant, or Landlord upon receipt from Tenant, is
\npaying any Imposition directly to the Governmental Authority or other Person
\nimposing the same, then each party, from time to time upon the request of the
\nother party, shall furnish evidence reasonably satisfactory to the requesting
\nparty evidencing the payment of the Imposition.<\/p>\n
SECTION 4.3.<\/p>\n
(a) “TAXES” shall mean and include (i) any and all real
\nproperty or other AD VALOREM taxes assessed or levied against or with respect
\nto the Premises or any part thereof, and (ii) sales, rental, or other similar
\ntaxes on commercial rents and (iii) fines, penalties and other similar or
\nlike governmental charges applicable to the foregoing taxes or charges and
\nany interest or costs with respect thereto.<\/p>\n
(b) Nothing herein contained shall require Tenant to pay
\nmunicipal, state or federal income, inheritance, estate, succession, capital
\nlevy, transfer or gift taxes of Landlord, or any corporate franchise tax
\nimposed upon Landlord or any gross income or gross receipts taxes imposed
\nupon Landlord, unless such tax is imposed in lieu of any of the taxes
\ndescribed in the preceding SECTION 4.3(a).<\/p>\n
SECTION 4.4. Any Imposition relating to a fiscal period of the
\nimposing Governmental Authority or other Person, a part of which period is
\nincluded within the Term and a part of which is included in a period of time
\nprior to or after the Term, shall be apportioned between Landlord and Tenant
\nas of the Commencement Date or Expiration Date, as the case may be, so that
\nTenant shall pay that portion of such Imposition which that part of such
\nfiscal period included in the period of time on or after the Commencement
\nDate and before the Expiration Date.<\/p>\n
SECTION 4.5. Tenant shall have the right, to the extent permitted by
\nlaw, at its own expense, to contest the amount or validity, in whole or in
\npart, of any Imposition it is obligated hereunder to pay, by appropriate
\nproceedings diligently conducted in good faith. Notwithstanding the
\nprovisions of SECTION 4.1 hereof, payment of such Imposition shall be
\npostponed if, and only as long as none of the Parcels nor any part thereof,
\nnor any part of the rents, issues and profits thereof, would, by reason of
\nsuch postponement or deferment, be, in the reasonable judgment of Landlord,
\nin danger of being forfeited or lost, in which event the Tenant shall pay
\nsuch Imposition or post a bond or other security sufficient to postpone
\nforfeiture or levy. Upon the termination of such proceedings, including
\nappeals, it shall be the obligation of Tenant to pay the amount of such
\nImposition or part thereof as finally determined in such proceedings or
\nappeals, the payment of which may have been deferred during the prosecution
\nof such proceedings, together with any costs, fees (including attorneys’ fees
\nand disbursements), interest, penalties or other liabilities in connection
\ntherewith.<\/p>\n
12<\/p>\n
SECTION 4.6. Tenant shall have the right, to the extent permitted by
\nlaw, and at Tenant’s sole cost and expense, to seek a reduction in the
\nvaluation of the Premises assessed for real property tax purposes and to
\nprosecute any action or proceeding in connection therewith; provided,
\nhowever, that during the last year of the Term (including any Renewal Term,
\nif applicable), Landlord (and not Tenant) shall have the right (but no
\nobligation), at Landlord’s cost and expense, to seek a reduction in the
\nvaluation of the Premises assessed for real property tax purposes and to
\nprosecute any action or proceeding in connection therewith.<\/p>\n
SECTION 4.7.<\/p>\n
(a) Landlord shall not be required to join in any
\nproceedings referred to in SECTION 4.5 or 4.6 hereof unless the provisions of
\nany law, rule or regulation at the time in effect shall require that such
\nproceedings be brought by or in the name of Landlord, in which event Landlord
\nshall join and cooperate in such proceedings or permit the same to be brought
\nin its name, but shall not be liable for the payment of any costs or expenses
\nin connection with any such proceedings, and Tenant shall reimburse Landlord
\nfor, and indemnify and hold Landlord harmless from and against, any and all
\ncosts or expenses which Landlord may reasonably pay, sustain or incur in
\nconnection with any such proceedings.<\/p>\n
(b) Tenant shall not be required to join in any proceedings
\nreferred to in the proviso at the end of 4.6 hereof unless the provisions of
\nany law, rule or regulation at the time in effect shall require that such
\nproceedings be brought by or in the name of Tenant, in which event Tenant
\nshall join and cooperate in such proceedings or permit the same to be brought
\nin its name, but shall not be liable for the payment of any costs or expenses
\nin connection with any such proceedings, and Landlord shall reimburse Tenant
\nfor, and indemnify and hold Tenant harmless from and against, any and all
\ncosts or expenses which Tenant may reasonably pay, sustain or incur in
\nconnection with any such proceedings.<\/p>\n
SECTION 4.8. Any certificate, advice or bill of the appropriate
\nofficial designated by law to make or issue the same or to receive payment of
\nany Imposition asserting non-payment of such Imposition shall be PRIMA FACIE
\nevidence that such Imposition is due and unpaid at the time of the making or
\nissuance of such certificate, advice or bill, at the time or date stated
\ntherein.<\/p>\n
ARTICLE 5
\n MONTHLY DEPOSITS<\/p>\n
From and after the occurrence of a monetary Event of Default
\nhereunder, at Landlord’s request Tenant shall deposit with Landlord, on a
\nmonthly basis together with Fixed Rent, one-twelfth of such amount as, in
\nLandlord’s reasonable judgment, is necessary so that Landlord will have
\nsufficient funds on deposit to pay when due all Taxes, Impositions and
\ninsurance required to be paid by Tenant hereunder. In the event that at any
\ntime Landlord reasonably believes that it will have insufficient funds on
\nhand based on the foregoing deposits, Landlord may require additional
\ndeposits, as necessary. Any such deposits shall be maintained by Landlord in
\na segregated interest-bearing <\/p>\n
13<\/p>\n
account. All such deposits shall be deemed the property of Tenant and held in
\ntrust by Landlord, and all income thereon shall be deemed Tenant’s income for
\npurposes of federal and other income taxes, but Tenant shall not have access
\nto, or direct the withdrawal or payment of, any funds in such account. If
\nafter payment of Taxes, Impositions and insurance for any Taxable Year,
\nLandlord continues to hold any excess funds (including interest) which had
\nbeen deposited by Tenant with Landlord, Landlord shall within thirty (30)
\ndays after payment of the Taxes, Impositions and insurance for said Taxable
\nYear return any excess funds to Tenant, provided, however, that if an Event
\nof Default exists (and any applicable cure period has expired), such excess
\nmay continue to be held, or may be credited, by Landlord against future
\namounts due or to become due or payable by Tenant hereunder.<\/p>\n
ARTICLE 6
\n LATE CHARGES<\/p>\n
If payment of any Fixed Rent, Impositions or any other Rental shall
\nnot have been paid in accordance with the provisions of SECTION 3.1, SECTION
\n3.4, or any other applicable provision hereof by the seventh day after the
\ndate on which such amount was due and payable under this Lease, a late charge
\n(“LATE CHARGE”) on the amount overdue at the rate (“LATE CHARGE RATE”) of
\nfifteen percent (15%) per annum from the date on which such amount was first
\ndue and payable until the date paid in full, shall at Landlord’s option be
\npayable as partial damages for Tenant’s failure to make prompt payment, in
\naddition to any other right or remedy of Landlord under this Lease. Late
\nCharges shall be payable on demand. Nothing contained in this ARTICLE 6 and
\nno acceptance of Late Charges by Landlord, shall be deemed to extend or
\nchange the time for payment of Fixed Rent, Impositions or any other Rental.
\nNo failure by Landlord to insist upon the strict performance by Tenant of its
\nobligations to pay Late Charges shall constitute a waiver by Landlord of its
\nright to enforce the provisions of this ARTICLE 6 in any instance thereafter
\noccurring. The provisions of this ARTICLE 6 relate only to the imposition of
\nLate Charges and shall not be construed in any way to create any grace period
\nwith respect to any Default or to extend the grace periods or notice periods
\nprovided for in ARTICLE 25.<\/p>\n
ARTICLE 7
\n INSURANCE<\/p>\n
SECTION 7.1.<\/p>\n
(a) Subject to the provisions herein, throughout the Term
\n(including any Renewal Terms), Tenant at its sole cost and expense shall:<\/p>\n
(i) keep all Buildings or cause all Buildings to be
\n kept insured under an “All Risk of Physical Loss” form of policy, also
\n providing coverage for loss or damage by water, flood, subsidence and
\n earthquake, and including coverage for changes in ordinances and laws
\n by governmental authority resulting in consequential and contingent
\n liabilities or increases in costs of construction, with such limits as
\n are reasonably required by Landlord <\/p>\n
14<\/p>\n
from time to time, and with deductibles not to exceed $100,000.00,
\n except that the deduct ible may be $250,000.00 for loss or damage by
\n flood and $500,000.00 for loss or damage by subsidence or earthquake,
\n and excluding from such coverage normal settling only, and including
\n war risks when and to the extent obtainable from the United States
\n government or an agency thereof; such insurance to be in the amount
\n set forth in the “agreed amount clause” endorsement to the policy in
\n question, which endorsement shall be attached to the policy, provided
\n that such amount shall be sufficient to prevent Landlord and Tenant
\n from becoming co-insurers under provisions of applicable policies of
\n insurance; and in the absence of such “agreed amount clause”
\n endorsement, such insurance shall meet the requirements of this
\n SECTION 7.1(A)(I) and shall be in an amount not less than one hundred
\n percent (100%) of the actual full replacement cost (without reduction
\n for depreciation or other matters) of all Buildings.<\/p>\n
(ii) provide and keep, or cause to be provided and
\n kept, in force comprehensive general liability insurance against
\n liability for bodily injury and death and property damage, it being
\n agreed that such insurance shall be in an amount as may from time to
\n time be reasonably required by Landlord, but not less than
\n $20,000,000.00 combined single limit for liability for bodily injury,
\n death and property damage; such insurance shall include all of the
\n Premises and all sidewalks adjoining or appurtenant to the Premises,
\n shall contain blanket contractual coverage and shall also provide the
\n following protection:<\/p>\n
(1) completed operations;<\/p>\n
(2) personal injury protection (exclusions a
\n and c of current forms deleted);<\/p>\n
(3) sprinkler leakage-water damage legal
\n liability; and<\/p>\n
(4) fire legal liability, if not otherwise
\n covered under the comprehensive form of public liability
\n insurance.<\/p>\n
(iii) provide and keep, or cause to be provided and
\n kept in force, automobile liability and property damage insurance for
\n all owned, non-owned and hired vehicles insuring against liability for
\n bodily injury and death and for property damage in an amount as may
\n from time to time (but not more often than once every three (3) years)
\n be reasonably required by Landlord but not less than $3,000,000.00
\n combined single limit, such insurance to contain the so-called
\n “occurrence clause”;<\/p>\n
(iv) provide and keep, or cause to be provided and
\n kept in force, workers’ compensation providing statutory benefits for
\n all persons employed by Tenant at or in connection with the Premises;<\/p>\n
15<\/p>\n
(v) if a sprinkler system shall be located in any
\n portion of any Building, provide and keep, or cause to be provided and
\n kept in force, sprinkler leakage insurance in amounts reasonably
\n required by Landlord;<\/p>\n
(vi) provide and keep, or cause to be provided and
\n kept, in force boiler and machinery insurance in an amount as may from
\n time to time be reasonably required by Landlord but not less than
\n $10,000,000.00 per accident on a combined basis covering direct
\n property loss and loss of income and providing for all steam,
\n mechanical and electrical equipment, including without limitation, all
\n boilers, unfired pressure vessels, piping and wiring;<\/p>\n
(vii) provide and keep, or cause to be provided and
\n kept, in force such other insurance in such amounts as either (A)
\n Landlord may reasonably require (including, without limitation,
\n insurance against loss or damage to landscaping and to irrigation and
\n lawn sprinkler systems) or (B) Landlord may from time to time be
\n required to carry by any Secured Lender, in either such case against
\n such other insurable risks or hazards as at the time are commonly
\n insured against in the case of prudent owners of like buildings,
\n improvements and property.<\/p>\n
(b) All insurance provided or caused to be provided by
\nTenant as required by this Section 7.1 (except the insurance under SECTION
\n7.1(a)(iv)) shall name Tenant as a named insured and Landlord as a named
\ninsured and a loss payee and shall include a so-called “Landlord Protective
\nInsurance” rider or endorsement providing, among other things, that Landlord
\nhas full rights to the full amount of the policy. The coverage provided or
\ncaused to be provided by Tenant as required by SECTIONS 7.1(a)(i), 7.1(a)(v)
\nand 7.1(a)(vi), 7.1(a)(vii) and any property insurance required to be
\nmaintained pursuant to SECTION 7.1(a) shall also name as an additional
\ninsured and (if Landlord so requests) also as an additional loss payee, under
\na standard noncontributing mortgagee clause, each Secured Lender which
\nLandlord requests Tenant so to name. The coverage provided or caused to be
\nprovided by Tenant as required by SECTIONS 7.1(a)(ii) and 7.1(a)(iii) and any
\nliability insurance provided or caused to be provided by Tenant shall also
\nname each Secured Lender as an additional insured.<\/p>\n
SECTION 7.2.<\/p>\n
(a) The loss under all policies required by any provision
\nof this Lease insuring against damage to the Buildings by fire or other
\ncasualty shall be payable jointly to Landlord or its designee, Tenant and (if
\nLandlord so designates) Secured Lenders, for application in accordance with
\nARTICLE 8 hereof.<\/p>\n
(b) All insurance required by any provision of this Lease
\nshall be in such form as is reasonably acceptable to Landlord and shall be
\nissued by any insurance company licensed and authorized to do business in the
\nState of Florida and having a Best’s Insurance Reports (or any successor
\npublication of comparable standing) rating of A XIII (or the then-equivalent
\nof such rating) <\/p>\n
16<\/p>\n
or better or by any other insurance company approved in writing by Landlord.
\nAll policies referred to in this Lease shall be procured, or caused to be
\nprocured, by Tenant, at no expense to Landlord and for periods of not less
\nthan one (1) year. Prior to the commencement of the term of each such policy,
\nTenant shall deliver to Landlord the following: (i) a certificate of
\ninsurance issued by the insurance carrier (not a broker or agent) evidencing
\nall coverages required by this Lease and the respective amounts and limits
\nthereof, such certificate to be satisfactory in all respects to Landlord and
\nto each Secured Lender (in each such Secured Lender’s absolute and
\nunqualified discretion); and (ii) such additional evidence of insurance (if
\nany) as any Secured Lender may, in its absolute discretion, require. Tenant
\nhereby agrees to defend, indemnify and hold harmless Landlord and all Secured
\nLenders from and against any and all losses, liabilities, damages, costs,
\nexpenses and claims of any and every kind whatsoever which any or all of them
\nmay pay, incur or sustain, or which may be asserted against them, as a
\nconsequence or result of Tenant’s having failed to obtain, carry or maintain
\nany insurance coverage required by the provisions of this Lease. A similar
\ncertificate of insurance for any new or renewal policy that replaces any
\npolicy expiring during the Term or any Renewal Term, together with any
\nadditional evidence of such insurance that any Secured Lender may, in its
\nabsolute discretion, require, shall be delivered to Landlord as aforesaid at
\nleast twenty-five (25) days prior to the date of expiration of the old
\npolicy, together with proof reasonably satisfactory to Landlord that all
\npremiums thereon have been paid for at least the first twelve months
\nfollowing the date of such certificate.<\/p>\n
(c) Tenant and Landlord shall cooperate in connection with
\nthe collection of any insurance moneys that may be due in the event of loss,
\nand Tenant and Landlord shall execute and deliver such proofs of loss and
\nother instruments which may be reasonably required for the purpose of
\nobtaining the recovery of any such insurance moneys.<\/p>\n
(d) All property insurance policies as required by this
\nLease shall provide in substance that all adjustments for claims shall be
\nmade with the written consent of Landlord subject to the respective rights of
\nTenant and any Secured Lender as an insured or additional insured to
\nparticipate in making such adjustment.<\/p>\n
(e) Tenant shall not violate or permit to be violated any
\nof the conditions or provisions of any insurance policy required hereunder,
\nand Tenant shall so perform and satisfy or cause to be performed and
\nsatisfied the requirements of the companies writing such policies so that at
\nall times companies of good standing, reasonably satisfactory to Landlord (as
\nprovided in SECTION 7.2(B) hereof), shall be willing to write and continue
\nsuch insurance.<\/p>\n
(f) Each policy of insurance required to be obtained or
\ncaused to be obtained by Tenant as herein provided, and each certificate or
\nmemorandum therefor issued by the insurer, shall contain (i) a provision that
\nno act or omission of Tenant, Landlord or any Secured Lender shall affect or
\nlimit the obligation of the property insurance company to pay Landlord or any
\nSecured Lender the amount of any loss sustained, (ii) an agreement by the
\ninsurer that such policy shall not be canceled or modified without at least
\nthirty (30) days’ prior written notice to Landlord and each Secured Lender,
\nand (iii) a provision authorizing the waiver of subrogation by Tenant and
\nLandlord of any <\/p>\n
17<\/p>\n
right to recover the amount of any loss resulting from the negligence of the
\nother or its agents, employees or licensees.<\/p>\n
SECTION 7.3. Notwithstanding any contrary provision contained in
\nthis Lease, Tenant hereby waives any and all rights of recovery, claim,
\naction, or cause of action against Landlord or its partners, agents,
\ncontractors or employees, for any loss or damage that may occur to the
\nPremises or the Parcels, or any property of Tenant therein or thereon, by
\nreason of fire, the elements, or any other cause which is, or is required to
\nbe, insured against under insurance policies carried or required to be
\ncarried by Tenant under this Lease, regardless of cause or origin, including
\nnegligence of Landlord or its partners, agents, contractors or employees, and
\nTenant covenants that no insurer shall hold any right of subrogation against
\nLandlord or any of such other Persons and all such insurance policies shall
\nbe amended or endorsed to reflect such waiver of subrogation.<\/p>\n
SECTION 7.4. The insurance required by this Lease, at the option of
\nTenant, may be effected by blanket and umbrella policies issued to Tenant
\ncovering the Premises and other properties owned or leased by Tenant;
\nprovided, however, that any such blanket policies shall (a) separately set
\nforth the amount of the insurance applicable to the Premises, (b) otherwise
\ncomply with the provisions of this Lease, and (c) afford the same protection
\nand rights to Landlord as would be provided by policies individually
\napplicable to the Premises.<\/p>\n
ARTICLE 8
\n USE OF INSURANCE PROCEEDS<\/p>\n
SECTION 8.1.<\/p>\n
(a) If all or any part of any of the Buildings or access
\nthereto shall be destroyed or damaged in whole or in part by fire or other
\ncasualty, Tenant shall give to Landlord immediate notice thereof.<\/p>\n
(b) If any such casualty damage or destruction shall (i)
\noccur at any time during the last two years of the Term or any Renewal Term,
\n(ii) render the Premises or a substantial portion thereof unusable for
\nTenant’s uses hereunder (or the permitted uses of Tenant’s assignee or
\nsublessee), and (iii) cost more than $3,000,000.00 to restore, then Landlord
\nor Tenant may in their sole discretion (but subject to any conditions
\nprecedent set out elsewhere in this SECTION 8.1), by written notice given to
\nthe other within ten (10) days after such damage or destruction, terminate
\nthis Lease (except that if, within such 10-day period, Tenant notifies
\nLandlord that it wishes to extend such period from 10 days to any date
\nspecified in the notice which is not later than three months after the date
\nof such damage or destruction, and Tenant acknowledges in writing that it
\nwill continue to pay all Rental hereunder and be responsible for all other
\nobligations of Tenant hereunder for and during such period, then if no
\nDefault has occurred such 10-day period shall be extended to the date
\nrequested in such notice for the benefit of both Landlord and Tenant, each of
\nwhom may terminate this Lease during that period as provided in this
\nsentence), in which case Landlord may obtain and retain all insurance
\nproceeds payable for or on account of such damage or loss for Landlord’s own <\/p>\n
18<\/p>\n
account and, if Tenant makes the payments to Secured Lenders (if any)
\nrequired by the last sentence of this paragraph, this Lease shall thereafter
\nbe of no further effect; provided, however, that Tenant shall have the right
\nto nullify any Landlord termination by duly and timely exercising any Renewal
\nOption pursuant to ARTICLE 46 (if then available for exercise pursuant to the
\nprovisions of said ARTICLE 46). If, as a result of casualty damages or
\ndestruction of the Parcel A Building, the Original Lease is duly and properly
\nterminated in accordance with the provisions of Section 8.1(b) thereof, then
\nLandlord or Tenant may in their sole discretion terminate this Lease by
\nwritten notice given by one of them to the other within ten (10) days after
\nnotice was first given of the termination of the Original Lease, in which
\ncase Tenant shall make the payments to Secured Lenders (if any) required by
\nthe last sentence of this paragraph, and after Tenant makes all of such
\npayments this Lease shall be of no further effect. If Tenant terminates this
\nLease and the insurance proceeds paid to Landlord are insufficient to satisfy
\nall amounts due on outstanding Secured Loans, then Tenant, on behalf of
\nLandlord, shall pay to each Secured Lender such Secured Lender’s share of
\nsuch deficiency so that all of such Secured Loans shall be paid and satisfied
\nin full (and Tenant’s payment of such deficiency shall be a condition
\nprecedent to the effectiveness of Tenant’s termination of this Lease);
\nprovided, however, that the aggregate amount Tenant shall be obligated so to
\npay to all of the Secured Lenders on account of all of the Secured Loans
\ntaken together shall be calculated in the same manner, and shall be subject
\nto the same limitation as to the principal indebtedness component thereof, as
\nis applicable to the Shortfall (defined hereinafter).<\/p>\n
(c) If any such damage or destruction does not result in
\ntermination of this Lease in accordance with SECTION 8.1(B), and provided
\nthat all monies or proceeds received by Landlord and Secured Lender from
\ninsurance provided herein (payable to either, both or jointly) (other than
\nrent insurance) are deposited into a segregated interest-bearing escrow
\naccount (which account is not available to satisfy claims of such Secured
\nLender’s general creditors) with Secured Lender and made available for
\nRestoration (defined herein), Tenant, at its sole cost and expense, for the
\nbenefit of Landlord, whether or not such damage or destruction shall have
\nbeen insured or insurable, and whether or not insurance proceeds (if any)
\nshall be sufficient for the purpose, with reasonable diligence (subject to
\nUnavoidable Delays) shall repair, alter, restore, replace and rebuild or
\nallow Landlord (at Tenant’s sole cost and expense) to repair, alter, restore,
\nreplace and rebuild (collec tively, “RESTORE”; and the work with respect
\nthereto is referred to herein collectively as “RESTORA TION”) or cause to be
\nRestored the same, to at least the extent of the value and as nearly as
\npracticable to the character of the Building existing immediately prior to
\nsuch occurrence (but in all events in compliance with all applicable laws and
\ncodes and the CC&Rs) and otherwise in substantial conformity with the Final
\nPlans therefor; and Landlord shall in no event be called upon to Restore any
\nBuilding or to pay any of the costs or expenses thereof. In the event all
\nmonies or proceeds received by Landlord and Secured Lender from insurance
\nprovided herein (payable to either, both or jointly) (other than rent
\ninsurance) are, through no fault of Tenant, not (within a reasonable time
\nafter such receipt thereof) made available for Restoration and are not
\nmaintained in an escrow account maintained by Secured Lender, Tenant, at
\nTenant’s option, may terminate this Lease upon at least 15 Business Days’
\nprior written notice to Landlord and Secured Lender, in which event Tenant
\nshall (if such monies are not, within such 15-day period, deposited with the
\nSecured Lender or otherwise made available for Restoration) be relieved of
\nall obligations hereunder (but any such <\/p>\n
19<\/p>\n
purported termination by Tenant will be ineffective if, within such 15-day
\nperiod, such monies are deposited with the Secured Lender or otherwise made
\navailable for Restoration). If Tenant either (i) fails or neglects to Restore
\nor cause to be Restored with reasonable diligence (subject to Unavoidable
\nDelays) the Buildings or the portions thereof so damaged or destroyed or (ii)
\nhaving so commenced such Restoration, fails to complete or cause to be
\ncompleted the same with reasonable diligence (subject to Unavoidable Delays)
\nin accordance with the terms of this Lease, then Landlord or Secured Lender
\nmay complete such Restoration for Tenant’s account and at Tenant’s sole cost
\nand expense. For purposes of ARTICLES 8 and 9, the “RESTORING PARTY” shall
\nmean Tenant; or, if Tenant allows Landlord, and Landlord (in its sole and
\nabsolute discretion) agrees, to be responsible for the Restoration, or if
\nLandlord undertakes to restore in the event Tenant refuses or otherwise fails
\ndiligently to restore, Restoring Party shall then mean Landlord.<\/p>\n
SECTION 8.2.<\/p>\n
(a) Subject to the provisions of SECTION 8.3, Secured
\nLender shall release to Restoring Party or to Restoring Party and its
\ncontractor(s) from time to time, upon the following terms and conditions, any
\nmonies or proceeds received by Landlord or Secured Lender from insurance
\nprovided herein (payable to either, both or jointly) (other than rent
\ninsurance) or cash or the proceeds of any security deposited with Secured
\nLender pursuant to SECTION 8.5 (collectively, “RESTORATION FUNDS”). Secured
\nLender shall release to Restoring Party, as hereinafter provided, the
\nRestoration Funds, for the purpose of Restoration to be made by Restoring
\nParty to Restore the Buildings to a value not less than their value prior to
\nsuch fire or other casualty. Such Restoration shall be done in accordance
\nwith, and subject to, the provisions of ARTICLE 13, including, without
\nlimitation, the maintenance of the insurance coverage referred to in SECTION
\n13.1(d). The Restoration Funds shall be paid to or for the account of
\nRestoring Party from time to time in installments as the Restoration
\nprogresses, upon application to be submitted from time to time by Restoring
\nParty to the Secured Lender(s) as described in SECTION 8.3. The amount of any
\ninstallment to be paid to or for the account of Restoring Party shall be such
\nportion of the total Restoration Funds as the cost of work, labor, services,
\nmaterials, fixtures and equipment theretofore incorporated in the Restoration
\nbears to the total estimated cost of the Restoration, less (i) all payments
\nthereto fore made to or for the account of the Restoring Party out of the
\nRestoration Funds and (ii) a sum equal to ten percent (10%) of the amount so
\ndetermined, the sums held back pursuant to this clause (ii) to be paid to or
\nfor the account of Restoring Party in the last installment of Restoration
\nFunds upon the final completion of the Restoration. Upon payment in full for
\nthe Restoration, the balance (if any) of the Restoration Funds consisting of
\ninsurance proceeds shall be paid first to reimburse Tenant for the reasonable
\nout-of-pocket costs (if any) paid by Tenant to the engineer or architect
\ndescribed in SECTION 8.2(b) for its cost estimate referred to therein, then
\nto reimburse Landlord for the reasonable costs (if any) paid by Landlord to
\nthe engineer or architect described in SECTION 8.2(b) for its cost estimate
\nreferred to therein, then subject to the rights of any Secured Lender named
\nas an insured, any remainder shall be paid to Landlord for its own account
\nand, to the extent such balance consists of sums deposited by Tenant, shall
\n(after first paying to Landlord therefrom an amount necessary to reimburse it
\nfor the reasonable costs, if any, paid by Landlord to the engineer or
\narchitect described in SECTION 8.2(b) for its cost estimate referred to
\ntherein) be paid over to Tenant. Subject to the <\/p>\n
20<\/p>\n
provisions herein, in the event that the Restoration Funds are insuffi cient
\nfor the purpose of paying for the Restoration, Tenant nevertheless shall be
\nrequired to cause the Restoration to be made, and shall pay or cause to be
\npaid any additional sums required for the Restoration.<\/p>\n
(b) Prior to the making of any Restoration which Tenant is
\nrequired to make pursuant to SECTION 8.1, Tenant shall furnish Landlord with
\nan estimate of the cost of such Restoration, prepared by a licensed
\nprofessional engineer or registered architect approved by Landlord and (if
\nLandlord so requests) any Secured Lender, which approval shall not be
\nunreasonably withheld. Landlord, at its election, may engage a licensed
\nprofessional engineer or registered architect to prepare its own estimates of
\nthe cost of such Restoration.<\/p>\n
(c) In the event of damage to or destruction of any
\nBuilding, if any emergency situation arises involving imminent danger either
\nto human life or safety or of further substantial damage to the Premises,
\nTenant may (at Tenant’s sole cost, expense, liability and risk) take such
\nemergency actions on a temporary basis as are necessary to avoid such danger,
\nbut Tenant shall not be relieved of any of its obligations under this Lease
\n(including, without limitation, its obligations concerning Restoration or the
\napplication of all insurance proceeds to Restoration) and none of such
\nobligations shall be reduced, diminished, deferred or affected in any way.<\/p>\n
SECTION 8.3. The following shall be conditions precedent to each
\npayment made to Restoring Party as provided in SECTION 8.2:<\/p>\n
(a) there shall be submitted to the other party and the
\nSecured Lender disbursing the Restoration Funds a certificate from the
\naforesaid engineer or architect (and, if required by the Secured Lender, also
\na similar certificate from such Secured Lender’s own inspecting architect or
\nengineer) stating (i) that the sum then requested to be withdrawn either has
\nbeen paid by Restoring Party or is justly due to contractors, subcontractors,
\nmaterialmen, engineers, architects or other Persons (whose names and
\naddresses shall be stated) who have rendered or furnished work, labor,
\nservices, materials, fixtures or equipment for the work and giving a brief
\ndescription of such work, labor, services, materials, fixtures or equipment
\nand the principal subdivisions or categories thereof and the several amounts
\nso paid or due to each of said Persons in respect thereof, and stating in
\nreasonable detail the progress of the Restoration up to the date of said
\ncertificate; (ii) that the sum then requested does not exceed the value of
\nthe work, labor, services, materials, fixtures and equipment described in the
\ncertificate; (iii) that the balance of the Restoration Funds held by Secured
\nLender will be sufficient, upon completion of the Restoration, to pay for the
\nsame in full, and stating in reasonable detail an estimate of the cost of
\nsuch completion; and (iv) that to the best of such persons’s knowledge all
\nwork had been done in a good and workmanlike manner and in substantial
\ncompliance with the plans and specifications therefor which had been approved
\nby Landlord and\/or Secured Lender and with all applicable laws, ordinances
\nand the CC&R’s; and<\/p>\n
(b) there shall be submitted to the other party and to the
\nSecured Lender disbursing the Restoration Funds a contractor’s sworn
\nstatement or affidavit in statutory form relating to all work done to date
\nfor which payment is then being requested from the general contractor and <\/p>\n
21<\/p>\n
all appropriate subcontractors, together with supporting lien waivers in
\nstatutory form from the general contractor and all subcontractors and
\nmaterialmen (all tiers) filing notices to owner or otherwise may have a
\nlawful claim to a lien, as well as all other customary documentation (if any)
\nas may reasonably be required by any Secured Lender; and<\/p>\n
(c) with respect to any final payment, Restoring Party
\nshall furnish to the other party and the Secured Lenders a final contractor’s
\naffidavit (with supporting lien waivers) in statutory form and an affidavit
\nfrom Restoring Party that all parties having rights to lien the Premises have
\nbeen paid in full; and<\/p>\n
(d) at the time of making such payment, no uncured Event of
\nDefault exists (the condition precedent described in this clause (d) may be
\nwaived in writing by Landlord, in its absolute discretion, unilaterally and
\nwithout the joinder or consent of any other Person).<\/p>\n
SECTION 8.4. If any material loss, damage or destruction occurs,
\nRestoring Party shall furnish or cause to be furnished to the other party and
\nall Secured Lenders holding a lien on or security interest in any of the
\ndamaged property or otherwise affected by such loss, at least ten (10) days
\nbefore the commencement of any Restoration which Restoring Party is required
\nor elects or is deemed to have elected to make pursuant to SECTION 8.1, the
\nfollowing:<\/p>\n
(a) complete plans and specifications for the Restoration
\nof the Building, prepared by a licensed professional engineer or registered
\narchitect whose qualifications shall meet with the reasonable approval of the
\nother party and such Secured Lenders, and, at the request of the other party,
\nany other drawings, information and samples that the other party may
\nreasonably request, all of the foregoing to be subject to the other party’s
\nand such Secured Lenders’ review and approval for substantial conformity with
\nthe Final Plans;<\/p>\n
(b) a general contract to perform the Restoration work for
\na stipulated sum or for cost plus a fee with an upset price, in form
\nassignable to the other party and such Secured Lenders, made with a reputable
\nand responsible contractor, providing in substance for (i) the completion of
\nthe Restoration with reasonable diligence, subject to Unavoidable Delays, in
\naccordance with said plans and specifications, free and clear of all liens,
\nencumbrances, security agreements, interests and financing statements, and
\n(ii) a payment and performance bond by sureties reasonably satisfactory to
\nthe other party and such Secured Lenders, naming the contractor as principal
\nand the other party and such Secured Lenders as dual obligees, in a penal sum
\nequal to the amount of such contract, or a clean irrevocable negotiable
\nletter of credit or other security reasonably satisfactory to the other party
\nand such Secured Lenders in an amount equal to the amount of such contract;
\nand<\/p>\n
(c) if Landlord is not the Restoring Party, an assignment
\nto Landlord of the contract so furnished and the bond, letter of credit or
\nother security so provided, such assignment to be duly executed and
\nacknowledged by Tenant, and acknowledged by the contractor, sureties and
\nother parties, and by its terms to be effective only upon any termination of
\nthis Lease or upon Land lord’s re-entry upon the Premises following an Event
\nof Default, prior to the complete performance <\/p>\n
22<\/p>\n
of such contract, such assignment also to include the benefit of all payments
\nmade on account of said contract including payments made prior to the
\neffective date of such assignment.<\/p>\n
SECTION 8.5. If the estimated cost of any Restoration which Tenant
\nis required to make pursuant to SECTION 8.1 exceeds the net insurance
\nproceeds received by Landlord or the Secured Lender disbursing the
\nRestoration Funds, then, prior to the commencement of such Restoration, or
\nthereafter if it is determined that the cost to complete the Restoration
\nexceeds the unapplied portion of such insurance proceeds, Tenant shall
\ndeposit with such Secured Lender a bond, cash, irrevocable letter of credit
\nor other security reasonably satisfactory to such Secured Lender and Landlord
\nin the amount of such excess, to be held and applied in accordance with the
\nprovisions of SECTION 8.2, as security for the timely and proper completion
\nof the work free of liens.<\/p>\n
SECTION 8.6. Except as otherwise expressly and specifically provided
\nherein, this Lease shall not terminate or be forfeited or be affected in any
\nmanner, and there shall be no reduction or abatement of the Rental payable
\nhereunder by Tenant, by reason of damage to or total, substantial or partial
\ndestruction of the Buildings or any part thereof or by reason of the
\nuntenantability of the same or any part thereof, for or due to any reason or
\ncause whatsoever, or because of any taking of all or part of the Premises by
\nthe power of eminent domain, or any other event or occurrence, and Tenant,
\nnotwithstanding any law or statute, present or future, irrevocably releases
\nand waives any and all rights to terminate this Lease or to quit or surrender
\nthe Premises or any part thereof; and Tenant expressly agrees that its
\nobligations hereunder (including, without limitation, the payment of Rental
\npayable by Tenant hereunder) shall continue under all circumstances without
\nabatement, suspension, diminution or reduction of any kind, as though the
\nBuildings had not been damaged or destroyed and no part of the Premises had
\nbeen taken.<\/p>\n
SECTION 8.7. For purposes of ARTICLES 8 and 9, if at the time of
\nRestoration there is no Secured Lender, Tenant and Landlord agree that
\nLandlord’s original construction lender shall act as Secured Lender for the
\nsole purpose of holding and disbursing the Restoration Funds. If Landlord’s
\noriginal construction lender is unwilling, or at any time refuses, to act as
\nSecured Lender for those purposes, Tenant and Landlord shall select an
\ninstitutional lender or a title insurance or trust company with offices in
\nJacksonville, Florida, mutually agreeable to both parties to act as said
\nSecured Lender for such purposes.<\/p>\n
SECTION 8.8. In no event (other than as a result of a due and proper
\ntermination of this Lease effected in accordance with the express provisions
\nhereof) shall there be any abatement, reduction or diminution of Rental in
\nthe event of any casualty regarding, relating to or affecting the Premises,
\nTenant agreeing to pay full Rental hereunder at all times after any and all
\nsuch casualties have occurred regardless of whether Tenant is then able to
\nuse or occupy the Premises and regardless of whether or not any Restoration
\nis being carried out.<\/p>\n
23<\/p>\n
ARTICLE 9
\n CONDEMNATION<\/p>\n
SECTION 9.1.<\/p>\n
(a) If at any time during the Term or any Renewal Terms,
\nthe whole or substantially all of the Premises, Buildings, and
\nParking\/Driveway Facilities shall be taken or sold under threat or notice
\nthereof for any public or quasi-public purpose by any lawful power or
\nauthority by the exercise of the right of condemnation or eminent domain or
\nby agreement among Landlord, Tenant and those authorized to exercise such
\nright, this Lease and the Term or any Renewal Terms shall, on written notice
\nof such termination given by Landlord or Tenant to the other not later than
\nfive Business Days after the effective date of such taking or sale, terminate
\neffective as of the date of such taking or sale and the Rental payable by
\nTenant hereunder shall be paid to and apportioned as of the date of such
\ntaking or sale. If at any time during the Term or any Renewal Term the
\nOriginal Lease is duly and properly terminated by Landlord or Tenant in
\naccordance with the provisions of Section 9.1(a) thereof, this Lease and the
\nTerm or any Renewal Terms shall, by written notice of the termination of this
\nLease given by Landlord or Tenant to the other not later than five Business
\nDays after the notice of such termination of the Original Lease is first
\ngiven thereunder, terminate effective as of the date of the termination of
\nthe Original Lease, and the Rental payable by Tenant hereunder shall be paid
\nto and apportioned as of such date.<\/p>\n
(b) If the whole or substantially all of the Premises,
\nBuildings, and Park ing\/Driveway Facilities shall be taken as provided in
\nthis SECTION 9.1, the proceeds of any condemnation awards shall be paid and
\ndistributed as follows: (i) there shall first be paid to Landlord an amount
\nequal to the total of all amounts due on or outstanding under all Secured
\nLoans (but the amount so paid to Landlord under this clause (i) on account of
\nthe aggregate principal amount outstanding under the Secured Loans shall be
\nsubject to the same limitation as applies in calculating the amount of the
\nShortfall [defined hereinbelow]); (ii) there shall next be paid to Tenant a
\nsum equal to the then-unamortized cost (determined on the basis of Tenant’s
\naccounting records, which Tenant shall keep in a manner consistent with
\ngenerally accepted accounting principles) of any Capital Improvements taken
\nin such taking and which were made to the Premises by Tenant and paid for by
\nTenant with its own funds (and not with insurance or condemnation proceeds),
\nless the cost of any work with respect to such Capital Improvements which was
\nperformed by Landlord for Tenant without any charge to Tenant or were
\notherwise paid for by Landlord, whether before or after the execution and
\ndelivery of this Lease; and (iii) the balance of the award, if any, shall be
\npaid to Landlord.<\/p>\n
(c) Each of the parties agrees to execute and deliver any
\nand all documents that may be reasonably required in order to facilitate
\ncollection by them of such awards in accordance with the provisions of this
\nARTICLE 9.<\/p>\n
(d) If the whole or substantially all of the Premises shall
\nbe taken, and the total of the entire principal amount outstanding and all
\ninterest and other amounts (including, without <\/p>\n
24<\/p>\n
limitation, all prepayment premiums, penalties and charges) of any and every
\nkind which have accrued or will accrue or be payable under all Secured Loans
\nas of the time the same are to be paid and satisfied in full as contemplated
\nherein as a result of the condemnation exceeds the amount of the award paid
\nto Landlord pursuant to clause (i) of SECTION 9.1(b) (the amount of such
\nexcess is referred to herein as the “SHORTFALL”), or if this Lease shall be
\nterminated as provided in Section 9.1(a) hereof, then Tenant on behalf of
\nLandlord shall pay to each Secured Lender such Secured Lender’s share of the
\nShortfall so that all of the Secured Loans (and all amounts payable in
\nrespect thereof) shall then be paid and satisfied in full. Solely for
\npurposes of determining the amount of any Shortfall hereunder, the total
\nprincipal amount (not including interest, prepayment penalties or premiums,
\nor other charges or amounts) of all Secured Loans taken into consideration
\nshall not exceed the sum of (i) $10,000,000.00 reduced in proportion to, and
\nin accordance with the same time schedule as is applicable to, the
\nregularly-scheduled principal amortization (if any) applicable to the first
\nlong-term Secured Loan obtained by Landlord to refinance the construction
\nloan for the Initial Building, plus (ii) the then-outstanding aggregate
\nprincipal balance of Secured Loans (as they may theretofore have been
\namortized in accordance with their respective terms) which financed costs
\npaid or incurred for or in connection with any Restorations. (Solely for
\npurposes of illustration, attached as EXHIBIT M is a sample amortization
\nschedule showing the amounts that would be required to be paid to the holders
\nof Secured Loans at various times under the factual assumptions concerning
\nthe Secured Loans set out in that exhibit.) Landlord shall have no obligation
\nto disclose to Tenant the principal amortization schedule, or any other fact
\nor matter relating to the amount of the indebtedness thereunder, under or
\nconcerning any Secured Loan until such time, if any, as Landlord makes a
\ndemand upon Tenant for payment of a Shortfall hereunder.<\/p>\n
SECTION 9.2. For purposes of this ARTICLE 9, the “DATE OF TAKING”
\nshall be deemed to be the earlier of (i) the date on which actual possession
\nof the whole or substantially all of the Premises, or a part thereof, as the
\ncase may be, is acquired by any lawful power or authority pursuant to the
\nprovisions of the applicable federal or Florida state law, or (ii) the date
\non which title to the Premises or the aforesaid portion thereof shall have
\nvested in any lawful power or authority pursuant to the provisions of the
\napplicable federal or Florida state law.<\/p>\n
SECTION 9.3.<\/p>\n
(a) If part but less than substantially all of the Premises
\nor Buildings shall be taken as provided in this ARTICLE 9, and there has been
\nno taking or impairment of parking therefor or access thereto that would
\nmaterially adversely affect Tenant’s use of the remaining facilities, then
\nthis Lease and the Term or any Renewal Terms shall continue unaffected,
\nwithout abatement of the Rental or diminution of any of Tenant’s obligations
\nhereunder except as otherwise expressly provided in SECTIONS 9.3(b) and
\n9.3(c).<\/p>\n
(b) If part but less than substantially all of the
\nPremises, Buildings, Park ing\/Driveway Facilities or access thereto shall be
\ntaken, and if the governing Secured Loan documents of the Secured Lenders
\nwhose Secured Loans are secured by the portions of the Premises affected by
\nsuch taking require that there be paid to such Secured Lenders, on account of
\ntheir <\/p>\n
25<\/p>\n
respective Secured Loans, any amounts (collectively, the “SECURED LOAN
\nREQUIRED PAYDOWN AMOUNT”) because of such taking, then there shall be paid to
\nsuch Secured Lenders from the condemnation award an aggregate amount equal to
\nsuch Secured Loan Required Paydown Amount provided that it does not exceed
\nthe Proportional Loan Reduction Amount (defined hereinafter); and if the
\ntotal net amount (after paying reasonable costs of collection) of all monies
\nor proceeds received by Landlord or Secured Lender from condemnation award
\nproceeds (payable to either, both or jointly) is insufficient therefor,
\nTenant shall pay such amount (subject to the limitations concerning the
\nmaximum amount of the principal indebtedness component of the Secured Loans
\nas is set out at the end of SECTION 9.1(d)) as a Shortfall hereunder, but if
\nthe total of all such net proceeds received from condemnation awards exceeds
\nthe Proportional Loan Reduction Amount (if any), such excess shall be
\ndeposited into a segregated interest-bearing escrow account with a Secured
\nLender (or alternative institution as provided herein with respect to
\ninsurance proceeds) and made available for Restoration. Under the
\ncircumstances described in the preceding sentence, Tenant agrees, at its sole
\ncost and expense, for the benefit of Landlord, whether or not the award or
\nawards, if any, shall be sufficient for the purpose, to proceed with
\nreasonable diligence (subject to Unavoidable Delays) to Restore or cause to
\nbe Restored any and all remaining parts of the Buildings not so taken so that
\nthe latter shall be a complete, rentable, self-contained architectural unit
\nin good condition and repair. Subject to the provisions and limitations in
\nthis ARTICLE 9, Landlord and any Secured Lender shall make available to
\nRestoring Party as much of that portion of the actual award (less all
\nreasonable expenses of collection incurred by Landlord or Secured Party, and
\nless the Secured Loan Required Paydown Amount [but not more than the
\nProportional Loan Reduction Amount], if any, paid to Secured Lenders; the net
\namount of such proceeds, after such reductions, is referred to herein as the
\n“RESTORATION APPLICATION AMOUNT”) received by Landlord or Secured Lender, if
\nany, as may be necessary to pay the cost of Restoration of the part of the
\nBuildings remaining. If, through no fault of Tenant, either (i) the
\nRestoration Application Amount is not made available for Restoration and is
\nnot maintained in an escrow account maintained by a Secured Lender or
\nappropriate alternative escrowee (Landlord shall have the right, but no
\nobligation, to make up any deficiency in the Restoration Application Amount
\nfrom its own funds), or (ii) if the Secured Loan Required Paydown Amount is
\ngreater than the Proportional Loan Reduction Amount and Landlord does not
\nmake up any deficiency in the Restoration Application Amount resulting
\ntherefrom, then Tenant, at Tenant’s option, may terminate this Lease and
\nthereby avoid any obligation with respect to such Restoration by giving
\nLandlord and all Secured Lenders notice of its election to terminate within
\n15 days of Tenant’s receiving notice that less than the Restoration
\nApplication Amount will be so deposited and made available for Restoration
\n(but notwithstanding such termination by Tenant, Tenant will still be
\nobligated promptly to pay to the Secured Lenders the entire Shortfall amount
\n[if any] –subject to the limitations concerning the maximum amount of the
\nprincipal indebtedness component of the Secured Loans as is set out at the
\nend of Section 9.1(d) — by which the Secured Loan Paydown Amount
\n[but not to exceed, for this purpose, the Proportional Loan Reduction Amount]
\nexceeds the total net proceeds [after the deductions described hereinabove) of
\nthe condemnation award received by Landlord or Secured Lenders). Tenant’s
\nright to terminate this Lease as provided in the preceding sentence shall
\nirrevocably and unconditionally lapse, expire and be of no further force or
\neffect automatically if Tenant fails to give Landlord such a notice of
\ntermination within such 15-day period. Such Restoration, the estimated cost
\nthereof, the payments to Restoring Party on account of the cost <\/p>\n
26<\/p>\n
thereof, Landlord’s and each Secured Lender’s rights to perform the same and
\nto perform Tenant’s obligations with respect to condemnation proceeds held by
\neach of such Persons, shall be done, determined, made and governed in
\naccordance with and subject to the provisions of ARTICLES 8, 9 and 13. Any
\nbalance of the award held after completion of the Restoration shall be paid
\nto Landlord, and any cash (and the proceeds of any security) deposited by
\nTenant with Secured Lender pursuant to SECTION 9.4 remaining after completion
\nof the Restoration shall be paid to Tenant. Each of the parties agrees to
\nexecute and deliver any and all documents that may be reasonably required in
\norder to facilitate collection of the awards. If the portion of the award
\nmade available by Landlord or Secured Lender is insufficient for the purpose
\nof paying for the Restoration, Tenant shall nevertheless be required to make
\nor cause to be made the Restoration and to pay or cause to be paid any
\nadditional sums required for the Restoration. For purposes hereof,
\n“PROPORTIONAL LOAN REDUCTION AMOUNT” means, at any time, the amount
\n(expressed in dollars) equal to the product of multiplying the aggregate
\noutstanding principal balances of all Secured Loans affected by the
\ncondemnation or other taking by the fraction of which the numerator is the
\ntotal number of Rentable Square Feet taken or otherwise lost as a result of
\nsuch condemnation or other taking and the denominator is the total number of
\nRentable Square Feet in the Buildings encumbered by such Secured Loans
\nimmediately before the effective ness of such condemnation or taking.<\/p>\n
(c) If a taking of the nature described in SECTION 9.3(a)
\noccurs and after the Restoration of any Building the number of Rentable
\nSquare Feet of such Building is less than the number prior to such taking and
\nRestoration, then, from the date of such taking the annual Fixed Rent payable
\nfor and with respect to that Building shall be the amount determined by
\nmultiplying (i) the annual Fixed Rent per Rentable Square Foot by (ii) the
\nnumber of Rentable Square Feet of the Restoration Building in question
\nremaining after the taking (as shown on the “as-built” drawings of the
\nRestored Building) and as recertified by the Architect.<\/p>\n
SECTION 9.4. If the estimated cost of any Restoration required by
\nthe terms of this ARTICLE 9 exceeds the condemnation award (after deducting
\nall reasonable expenses of collection) received by Landlord and Secured
\nLenders, then, prior to the commencement of such Restoration or thereafter if
\nit is determined that the cost to complete the Restoration exceeds the
\nunapplied portion of such award, Tenant shall deposit with a Secured Lender
\n(or suitable alternative escrowee as provided hereinabove) a bond, cash,
\nirrevocable letter of credit or other security reasonably satisfac tory to
\nLandlord and Secured Lenders in the amount of such excess, to be held and
\napplied by Secured Lender in accordance with the provisions of SECTION 9.3,
\nas security for the completion of the work free of public improvement,
\nvendors’, mechanics’, laborers’ or materialmen’s statutory or other similar
\nliens.<\/p>\n
SECTION 9.5. If the temporary use of the whole or any part of the
\nPremises shall be taken at any time during the Term or any Renewal Term for
\nany public or quasi-public purpose by any lawful power or authority by the
\nexercise of the right of condemnation or eminent domain or by agreement,
\nTenant shall give prompt notice thereof to Landlord. Except as expressly and
\nspecifically provided in this ARTICLE 9, the Term and any Renewal Terms shall
\nnot be reduced or affected in any way and Tenant shall continue to pay in
\nfull the Rental payable by Tenant hereunder without reduction or <\/p>\n
27<\/p>\n
abatement, and Tenant shall be entitled to receive for itself any award or
\npayments for such use; provided, however, that if the taking is for a period
\nbeginning during, but extending beyond the end of, the Term or any Renewal
\nTerm, such award or payment shall be appor tioned between Landlord and Tenant
\nas of the last day of the Term or any Renewal Term.<\/p>\n
SECTION 9.6. In case of any governmental action not resulting in the
\ntaking or condemnation of any portion of the Premises but creating a right to
\ncompensation therefor, such as the changing of the grade of any street upon
\nwhich the Premises abut, then, except as otherwise provided in this ARTICLE
\n9, this Lease shall continue in full force and effect without reduction or
\nabatement of Rental and, subject to the rights of the Secured Lenders, and
\nany award shall be determined by applicable law.<\/p>\n
SECTION 9.7. Notwithstanding any contrary provision in this Article,
\nwith respect to any condemnation or similar taking that occurs after the end
\nof the sixteenth Lease Year, Tenant shall not be obligated to pay any
\nShortfall except a Shortfall that relates only to Secured Loans the proceeds
\nof which financed or refinanced the costs of constructing one or more
\nAdditions or other improvements other than the Initial Building as in place
\non the Commencement Date. The preceding sentence shall not be construed as
\nlimiting or restricting in any way Tenant’s obligations for or concerning
\nRestorations.<\/p>\n
SECTION 9.8. Anything contained herein to the contrary
\nnotwithstanding, Landlord shall not settle or compromise any taking or other
\ngovernmental action creating in Tenant either a right to compensation or an
\nobligation to pay all or part of the Secured Loans as provided in this
\nARTICLE 9 without the prior consent of Tenant, which consent shall not be
\nunreasonably withheld or delayed.<\/p>\n
SECTION 9.9. Notwithstanding anything herein to the contrary, in
\nconnection with any taking or threat thereof, Tenant shall be entitled, at
\nits sole expense, to make a separate claim, and to prove and receive an
\naward, for (a) the value of Tenant’s Property to the extent the same is
\ntaken, (b) any Capital Improvement owned by Tenant pursuant to ARTICLE 45,
\nand (c) any business damages, moving allowances and other expenses or claims
\npermitted by law, if any; and Landlord shall not be entitled to any portion
\nof any award made solely for such items.<\/p>\n
ARTICLE 10
\n ASSIGNMENT, SUBLETTING AND MORTGAGES<\/p>\n
SECTION 10.1. Subject to the provisions of this Lease that apply
\nthereto, Tenant shall have the absolute right, at any time when no Event of
\nDefault shall have occurred and remain uncured, upon prior written notice to
\nLandlord, to sublet, assign or otherwise transfer all or any part of its
\ninterest in the Premises or the Lease, without Landlord’s approval, written
\nor otherwise, so long as Tenant’s assignee’s or sublessee’s use of the
\nPremises or part thereof is in all respects subject to, and complies with and
\nconforms to, the provisions of this Lease and the CC&R’s and all applicable
\nlaws, rules, statutes, codes, ordinances and regulations.<\/p>\n
28<\/p>\n
SECTION 10.2. In the event Tenant duly assigns this Lease, in
\nconformity with all of the applicable provisions of this Lease, to an
\nassignee who has assumed all of Tenant’s obligations under the Lease pursuant
\nto a written assumption agreement satisfactory in all respects to Landlord
\nand all Secured Lenders, then, if Tenant’s assignee (or a guarantor who
\nexecutes and delivers to Landlord a written agreement guaranteeing the
\npayment and performance of all obligations of such assignee under or
\nconcerning this Lease, which written guaranty agreement is substantially
\nidentical to the Guaranty executed by Guarantor (those two capitalized terms
\nhaving the same respective meanings for all purposes of this Lease as the
\nrespective meanings given to them in the Original Lease) and delivered to
\nLandlord substantially simultaneously with and in connection with the
\nexecution of the Original Lease or is otherwise satisfactory in form and
\nsubstance to Landlord and all Secured Lenders, respectively, in their sole,
\nabsolute and arbitrary discretion) then has a Credit Rating equal to or
\nbetter than A1 from Moody’s and AA minus from Standard & Poor’s, and if
\nTenant pays Landlord a sum equal to 1% of the principal balance of all
\nthen-outstanding Secured Loans (to the extent that such amount is charged by,
\nor paid or payable to, Secured Lenders holding such Secured Loans, for, on
\naccount of, or as a consequence of such assignment or such release), Tenant
\nshall be freed and released from all of its agreements, covenants, and
\nobligations under this Lease. Otherwise, Tenant shall remain primarily liable
\nhereunder and with respect to this Lease. Tenant shall in all events remain
\nprimarily liable under this Lease after, and notwithstanding, any Subleases
\n(defined hereinafter).<\/p>\n
SECTION 10.3. If Tenant’s entire interest under this Lease is duly
\nassigned and Landlord is given notice thereof, Landlord shall accept Rental
\nfrom the assignee and, if an Event of Default has occurred and is continuing,
\nmay (in its discretion) collect and enforce Rental directly from the
\nassignee. If the Premises or any part thereof are sublet, used or occupied by
\nany Person other than Tenant, Landlord may, in its discretion, if an Event of
\nDefault has occurred and is continuing, collect and enforce Rental directly
\nfrom the subtenant or occupant. References in this Lease to use or occupancy
\nby others (that is, any Person other than the Tenant) shall not be construed
\nas limited to subtenants and those claiming through subtenants, but rather as
\nincluding also licensees, concession aires, operators and others claiming
\nunder or through Tenant immediately or remotely a legal right of possession
\nor occupancy of the Premises or any portion thereof (all such persons being
\nreferred to individually in this Lease as a “SUBTENANT” and collectively as
\n“SUBTENANTS”).<\/p>\n
SECTION 10.4. Notwithstanding anything to the contrary contained in
\nthis Article, if Tenant shall at any time or times during the Term or any
\nRenewal Term of this Lease desire to assign this Lease or sublet all or part
\nof the Premises, Tenant shall give thirty days prior written notice thereof
\nto Landlord (or 90 days prior written notice if Tenant wishes for itself to
\nbe released from its obligations and liability under and in respect of this
\nLease under Section 10.2), which notice shall be accompanied by a statement
\nsetting forth in reasonable detail the identity and business address of the
\nproposed assignee or Subtenant, its proposed use of the Premises, and (in the
\ncase of a sublease) a detailed description of the portion of the Premises to
\nbe subleased. No assignment or sublease shall be valid or effective unless
\nsuch notice has been duly given.<\/p>\n
29<\/p>\n
SECTION 10.5. Notwithstanding anything to the contrary contained in
\nthis ARTICLE 10, it shall be a condition precedent to any assignment or
\nsubletting that each assignee shall expressly assume and agree to be subject
\nto and bound by and personally obligated and liable for, and each sublessee
\nshall agree to be subject to, all of the covenants, agreements, terms,
\nprovisions and conditions contained in this Lease, except such (if any) as by
\ntheir nature are clearly and inherently irrelevant or inapplicable, in each
\nsuch case pursuant to a written instrument satisfactory to Landlord (acting
\nreasonably) which is signed by such assignee or sublessee and delivered to
\nLandlord. Subject to SECTION 10.2: Tenant shall and will remain fully liable
\nfor the payment of all Rental due and thereafter to become due hereunder and
\nfor the performance of all of the covenants, agreements, terms, provisions
\nand conditions contained in this Lease on the part of Tenant to be performed
\nand all acts and omissions of any assignee or Subtenant or anyone claiming
\nunder or through any assignee or Subtenant which shall be in violation of any
\nof the provisions of this Lease, and any such violation shall be deemed to be
\na violation by Tenant.<\/p>\n
SECTION 10.6. With respect to each and every Sublease authorized
\nunder the provisions of this Lease, it is further agreed as follows:<\/p>\n
(a) No subletting shall be for a term (including renewal or
\nextension options) ending later than one day prior to the expiration of the
\nTerm or any relevant Renewal Term (if exercised) of this Lease.<\/p>\n
(b) No Subtenant shall take possession of the Premises or
\nany part thereof until an executed counterpart of such Sublease, conforming
\nwith the applicable provisions and requirements of this Lease, has been
\ndelivered to Landlord.<\/p>\n
(c) Each Sublease shall expressly provide that (1) it is
\nsubject and subordinate to this Lease and to the matters to which Tenant’s
\nrights or interests under this Lease is or shall be subordinate, and that in
\nthe event of Landlord’s termination of or re-entry or dispossess under this
\nLease, Landlord may, at its option and without the consent of the Subtenant,
\ntake over all of the right, title and interest of Tenant, as sublessor, under
\nsuch Sublease, and (2) such Subtenant shall, if requested to do so by
\nLandlord (in Landlord’s absolute discretion), attorn to Landlord pursuant to
\nthe then-executory provisions of such Sublease or, at Landlord’s option,
\nenter into a direct lease on identical terms with Landlord for the balance of
\nthe unexpired term of the Sublease, except that Landlord shall not under any
\ncircumstance whatsoever be (i) liable for any previous act or omission of
\nTenant under or concerning such Sublease, (ii) subject to any offset, not
\nexpressly provided for in such Sublease, which theretofore accrued to such
\nSubtenant against Tenant, (iii) liable for any security deposited by such
\nSubtenant which has not been transferred to Landlord, (iv) bound by any
\nprevious modification of such Sublease not approved by Landlord, (v) bound by
\nany prepayment of more than one month’s rent, (vi) bound by any covenant of
\nTenant to undertake or complete any construction or improvement of the
\nPremises or any portion thereof demised by such Sublease, or (vii) bound by
\nany obligation of Tenant or any other Person to make any payment to, on
\nbehalf of, or for the account or benefit of, the Subtenant.<\/p>\n
30<\/p>\n
(d) Each Sublease shall expressly provide, in addition to
\nsuch other matters as are required pursuant to this ARTICLE 10, that (1) the
\nSubtenant will not pay any rent or other sums under the Sublease for more
\nthan one month in advance of the due date for any corresponding Rental
\nobligation under this Lease, and (2) on the termination of this Lease
\npursuant to ARTICLE 25, upon Landlord’s request the Subtenant will promptly
\ndeliver to Landlord “as-built” drawings of any and all construction,
\nalteration, renovation or Restoration work performed or caused to be
\nperformed in the space demised under such Subtenant’s Sublease, and if any
\nconstruction, alteration, renovation or Restoration work with respect to such
\nspace is then proposed or in progress, such Subtenant’s drawings and
\nspecifications, if any, for such work.<\/p>\n
SECTION 10.7. Tenant shall make reasonable efforts to cause all
\nSubtenants to comply with their obligations under their respective subleases
\nor occupancy, operating, license and concession agreements, as the case may
\nbe (individually, a “SUBLEASE” and collectively, “SUBLEASES”), and Tenant
\nshall enforce with reasonable diligence all of its rights and remedies as the
\nsublessor or licensor thereunder in accordance with the terms of each of the
\nSubleases.<\/p>\n
SECTION 10.8. The fact that a violation or breach of any of the
\nterms, provisions or conditions of this Lease results from or is caused by an
\nact or omission by any of one or more Subtenants or (unless Tenant has been
\nreleased from its obligations hereunder in connection with an assignment to
\nsuch assignee as provided hereinabove) by an assignee shall not relieve
\nTenant of Tenant’s obligations to cure, and to be responsible for all of the
\nconsequences, of such violation or breach.<\/p>\n
SECTION 10.9. To secure the prompt and full payment by Tenant of the
\nRental and the faithful performance by Tenant of all of the other terms and
\nconditions herein contained on its part to be kept and performed, Tenant
\nhereby assigns, transfers and sets over unto Landlord, subject to the
\nconditions hereinafter set forth in this SECTION 10.9, all of Tenant’s right,
\ntitle and interest in and to all assignments of its interest under this Lease
\nand all Subleases, and hereby confers upon Landlord and its agents and
\nrepresentatives a right of entry in, and sufficient possession of, the
\nPremises to permit and insure the collection by Landlord of the rentals and
\nother sums payable under the Subleases and such lease assignments, and
\nfurther agrees that the exercise of the right of entry and qualified
\npossession by Landlord shall not constitute an eviction of Tenant from the
\nPremises or any portion thereof; provided, however, that Landlord may not
\nenforce, or exercise any remedies under, such assignment to Landlord until
\n(a) an Event of Default shall have occurred and all applicable cure periods
\nshall have expired, or (b) this Lease, the Term or any Renewal Terms shall be
\ncanceled or terminated pursuant to the terms, covenants and conditions
\nhereof, or (c) there occurs repossession under a dispossess warrant or other
\njudgment, order or decree of a court of competent jurisdiction and then only
\nas to such of the Subleases (if any) that Landlord may elect to take over and
\nassume.<\/p>\n
SECTION 10.10. Tenant shall deliver to Landlord on or before each
\nDecember 31st during the Term and any Renewal Terms, a schedule of any lease
\nassignment and all Subleases, if any, which schedule shall include the
\nrespective names of any assignee and all Subtenants and, with respect to each
\nSublease, a description of the space sublet, the expiration date, any
\nextension or renewal options, rentals and other payment obligations, and any
\nother information relating to such Subleases <\/p>\n
31<\/p>\n
which Landlord reasonably requests. From time to time during the Term and any
\nRenewal Terms, Landlord may change the date on which Tenant is required to
\ndeliver such schedule by giving Tenant thirty (30) days’ prior notice
\nthereof; provided, however, that Tenant shall not be required to deliver such
\nschedule more than twice in any period of twelve consecutive months.<\/p>\n
SECTION 10.11. Notwithstanding anything to the contrary in this
\nLease, under no circumstance whatsoever may Tenant directly or indirectly,
\nvoluntarily or involuntarily, by operation of law or otherwise, assign,
\ntransfer, convey, grant, sell, encumber, pledge or dispose of any of the
\nRenewal Options, or any other right or option of Tenant which is granted or
\nexpressed in ARTICLE 46, nor may Tenant contract or agree to do any of the
\nforegoing, except to an assignee of all of Tenant’s right, title, estate and
\ninterest in and to this Lease and the Premises who acquires such interest in
\ncompliance with the provisions of SECTION 10.1 hereof, and any document,
\ninstrument, agreement, grant, contract or other act or thing purporting to or
\nagreeing to accomplish or effect any of the foregoing to or in favor of a
\nPerson other than an assignee satisfying the requirements of this SECTION
\n10.11 shall be absolutely and completely invalid, void ab initio, and of no
\nforce or effect whatsoever.<\/p>\n
SECTION 10.12. INTENTIONALLY OMITTED<\/p>\n
SECTION 10.13. Prior to the Commencement Date, except for any
\nSecured Loan, Landlord shall not, whether voluntarily, involuntarily, or by
\noperation of law or otherwise, assign, encumber, pledge, grant a security
\ninterest in, or otherwise transfer all or any portion of Landlord’s interest
\nin this Lease or the Premises without obtaining the prior written consent of
\nTenant, which may be given or withheld in Tenant’s sole discretion. For
\npurposes of this SECTION 10.13, if Landlord is a corporation or partnership,
\nand if at the time prior to the Commencement Date the Person or Persons which
\nowns or own a majority voting control of such corporation’s shares or the
\ngeneral partner’s interest in such partnership, as the case may be, ceases or
\ncease to own, directly or indirectly, a majority of those voting control
\nshares or general partner’s interest, as the case may be, whether by
\noperation of law or otherwise, any such event shall be deemed to be an
\nassignment of this Lease as to which Tenant’s prior consent shall be
\nrequired. After the Commencement Date, Landlord may assign, encumber,
\nmortgage, pledge, grant a security interest in, or transfer all or any part
\nof its interest in the Lease and the Premises without restriction or
\nlimitation of any kind, provided that the Person or Persons who then acquire
\nor own Landlord’s interest in the Lease or Premises, including without
\nlimitation the purchaser or transferee in any sale or transfer, must have the
\ncapability to and expressly agree in writing to assume and carry out any and
\nall agreements, covenants and obligations of Landlord hereunder, in which
\nevent the original Landlord shall be freed and relieved of, and released
\nfrom, all of its agreements, covenants and obligations under the Lease.
\nAnything in the preceding portions of this SECTION 10.13 or elsewhere in this
\nLease to the contrary notwithstanding, Landlord may, at any time or from time
\nto time, freely and without restriction or limitation of any kind, assign,
\nencumber, mortgage, pledge, grant a security interest in, or transfer all or
\nany part of its right, title, interest or estate in, under or to the Lease,
\nthe Premises and the Parcels to any Secured Lender (or such Secured Lender’s
\ndesignee in the case of a conveyance in lieu of foreclosure) or to any
\npurchaser at a foreclosure, trustee’s, or other similar sale; and any and all
\nSecured Lenders, their <\/p>\n
32<\/p>\n
designees, and such purchasers, and their successors, purchasers and assigns,
\nshall be free of all of the restrictions and limitations set out in the
\npreceding sentences of this SECTION 10.13.<\/p>\n
SECTION 10.14. Tenant shall not place any advertising signs on the
\nPremises or otherwise advertise for subtenants or lease assignments without
\nLandlord’s prior written approval, which Landlord will not withhold
\nunreasonably; provided, however, that in no event shall Tenant place any
\nadvertising signs on the Premises within the final two years of the Term or
\nany Renewal Term. Any advertising sign which Tenant does place or allow to
\nremain on the Premises shall at all times be clean, neat, dignified and in
\nfirst-class condition. Without limiting the generality of the preceding
\nsentence: no advertising sign or other advertisement shall be placed, or be
\nallowed to remain, on the Premises in violation of any applicable law, code,
\nordinance or CC&Rs; no advertising sign shall remain on the Premises for
\nlonger than six months without being removed or replaced by a new sign which
\nsatisfies all of the requirements of this SECTION 10.14; and, any advertising
\nsign placed or allowed to remain on the Premises shall expressly state that
\nany available space is being offered by the lessee thereof for assignment or
\nsublet.<\/p>\n
SECTION 10.15.<\/p>\n
(a) Tenant may from time to time mortgage or grant a
\nsecurity interest in its rights under this Lease (including its option and
\nother rights hereunder) and its leasehold interest in the Premises (a
\n“LEASEHOLD MORTGAGE”), but only on and subject to all of the conditions and
\nprovisions applicable to an outright assignment of Tenant’s interest
\nhereunder as set out herein. On and subject to the satisfaction of all such
\nconditions and provisions, the holder of any Leasehold Mortgage (a “LEASEHOLD
\nMORTGAGEE”) may be granted all rights and privileges of the Tenant under this
\nLease and may exercise any or all such rights in accordance with the
\nprovisions of the Leasehold Mortgage, but Landlord shall have no obligation
\nto recognize or deal with any Leasehold Mortgagee unless and until all of
\nsuch conditions and provisions have been fully satisfied and complied with.
\nTenant hereby agrees to defend, indemnify and hold Landlord harmless from and
\nagainst any and all losses, liabilities, damages, costs, expenses and claims
\nof any and every kind which Landlord may pay, suffer or incur, or which may
\nbe asserted against Landlord, as a result or consequence of Landlord’s
\ndealing with or taking any action (or refraining from taking any action)
\nrequested by any Leasehold Mortgagee.<\/p>\n
(b) Within 30 days after being requested in writing to do
\nso by Tenant, Landlord will deliver to Tenant or any Leasehold Mortgagee
\ndesignated in writing by Tenant to Landlord a reasonable estoppel letter
\nconfirming (subject to such exceptions, qualifications, limitations or
\nclarifications, if any, that Landlord may consider appropriate) the
\nfollowing: (i) the existence of this Lease and any amendments or
\nmodifications thereto, (ii) the absence of any material defaults under this
\nLease by Tenant known to Landlord or, if such defaults exist, identifying
\nthem, (iii) the Rental payable under this Lease and whether any waivers or
\nconcessions have been granted by Landlord with respect thereto, and (iv) such
\nother information readily available to Landlord as Tenant or such Leasehold
\nMortgagee may reasonably request.<\/p>\n
33<\/p>\n
(c) Landlord agrees that if requested to do so in writing
\nby Tenant and any one Leasehold Mortgagee, Landlord will (a) send to such
\nLeasehold Mortgagee, at its address theretofore furnished to Landlord by
\nTenant in a written notice hereunder, a copy of any notice of default which
\nLandlord may thereafter give under this Lease to Tenant, and (b) accept from
\nsuch Leasehold Mortgagee any complete curing of any Default by Tenant
\nhereunder on the same basis, within the same period of time, and subject to
\nthe same conditions, as Landlord would have been obligated to accept if such
\ncure had been effected by Tenant. Landlord shall not be required to
\nsubordinate any of its rights, titles, estates or interests to any Leasehold
\nMortgage.<\/p>\n
ARTICLE 11
\n LANDLORD’S AND TENANT’S PROPERTY<\/p>\n
SECTION 11.1.<\/p>\n
(a) Tenant acknowledges that the Buildings and all of the
\nmaterials and Equipment incorporated therein are the property of Landlord,
\nand Tenant agrees that, except for Tenant’s Property, all materials and
\nEquipment incorporated into any Building at any time during the Term shall
\nimmediately become and constitute the property of Landlord, and that title to
\nall of the Buildings and such materials and Equipment shall continue in
\nLandlord.<\/p>\n
(b) Tenant covenants and agrees that all Construction
\nAgreements between Tenant and any contractor shall include the following
\nprovision VERBATIM: “[contractor] [subcontractor] [materialman] shall look
\nsolely to [Tenant] [contractor] [subcontractor] for payment for any and all
\nmaterials sold, delivered or installed and for all services performed and
\nlabor provided, it being expressly understood and agreed that Landlord shall
\nnot be liable in any manner for payment or otherwise to [contractor]
\n[subcontractor][materialman] for or in connection with any such materials,
\nservices or labor, and Landlord shall have no obligation to pay any
\ncompensation to [contractor][subcontractor] [materialman] for or on account
\nof such services, labor or materials becoming incorporated in the Premises of
\n[insert name of the Landlord]; and [contractor] [subcontractor] [materialman]
\nshall not under any circumstance have or assert any lien or claim for lien
\nagainst the Premises or Landlord’s right, title, interest or estate therein
\nor thereto.”<\/p>\n
SECTION 11.2. All movable partitions, business and trade fixtures,
\nmachinery and equipment, communications equipment and office equipment and
\nother fixtures and personal property, whether or not attached to or built
\ninto the Premises, which are installed in the Premises by or for the account
\nof Tenant and which can be removed without structural damage to the Building,
\nand all furniture, furnishings and other articles of movable personal
\nproperty installed by or on account of Tenant and located in the Premises
\n(herein collectively called “TENANT’S PROPERTY”), shall be and shall remain
\nthe property of Tenant and may be removed by Tenant at any time during the
\nterm of this Lease or within 30 days after the Expiration Date; provided,
\nhowever, that if any of Tenant’s Property is removed at any time (whether
\nbefore or after the Expiration Date), Tenant shall repair or pay the cost of
\nrepairing any damage to the Premises or to the Building resulting from the
\ninstallation and <\/p>\n
34<\/p>\n
removal thereof; and provided further, that it shall be a condition of
\nTenant’s allowing any of Tenant’s Property to remain on the Premises after
\nthe Expiration Date that it be in such condition and location that Landlord
\nand its designees shall at all times after the Expiration Date have full and
\nfree access to all parts of the Premises (including, without limitation, all
\ninterior portions of all Buildings) to do any repairs, replacements,
\nconstruction, maintenance, improvements or other work that Landlord may wish
\nto do, and Landlord is hereby irrevocably granted full and complete authority
\nto move any and all of Tenant’s Property, at Tenant’s cost and expense, to
\nthe extent reasonably necessary or useful to permit or facilitate Landlord’s
\ndoing any of such work, and Landlord shall have no liability or
\nresponsibility of any kind for or on account of any damage to or destruction
\nof Tenant’s Property which results from the foregoing (except for any such
\ndamage caused by Landlord’s malicious or willful damage thereto).<\/p>\n
SECTION 11.3. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 11.4. Any items of Tenant’s Property which shall remain in
\nthe Premises after the 30th day following the Expiration Date shall be deemed
\nto have been abandoned, and in such case all such items shall automatically
\nbe and become Landlord’s property, and may be retained by Landlord as its
\nproperty or removed and disposed of by Landlord, without accountability, in
\nsuch manner as Landlord shall determine, at Tenant’s expense. Landlord shall
\nhave no obligation to Tenant with respect to any items of Tenant’s Property
\nremaining in the Premises after the Expiration Date. Tenant shall pay to
\nLandlord, on demand, the total amount of the expenses paid or incurred by
\nLandlord for or in connection with the removal, storage and disposition of
\nsuch items, less the net salvage amount (if any) actually received by
\nLandlord therefor.<\/p>\n
ARTICLE 12
\n REPAIRS; SERVICES<\/p>\n
SECTION 12.1. Except for Landlord’s construction and (if any) repair
\nobligations expressly set forth herein, Tenant, at its sole cost and expense,
\nthroughout the Term and all Renewal Terms (if exercised), shall take good
\ncare of the Parcels including, without limiting the generality of the
\nforegoing, all structural components (including but not limited to all roofs,
\nfoundations, slabs, and supporting members), non-structural items, building
\nsystems, parking areas, driveways and other paved surfaces, and sidewalks and
\ncurbs in front of or adjacent to the Parcels, all landscaping and all
\nirrigation and landscape watering systems, all water, sewer and gas
\nconnections, pipes and mains which service the Parcels and which neither the
\nCity of Jacksonville, the Association, Wilma’s successor in interest under
\nthe Initial Declaration as amended, nor a utility company is obligated to
\nrepair and maintain, and all Equipment, and shall keep and maintain the
\nParcels in good and safe order and working condition, and make all repairs
\ntherein and thereon necessary to keep the same in good and safe order and
\nworking condition and to comply with all applicable laws (including but not
\nlimited to the Americans with Disabilities Act), ordinances, orders, rules,
\nregulations, codes and requirements of the City of Jacksonville and all other
\nGovernmental Authorities, howsoever the necessity or desirability of such
\nrepairs may occur, except for: (a) ordinary wear and tear (but Tenant <\/p>\n
35<\/p>\n
shall be obligated to perform reasonable maintenance and shall also be
\nobligated to perform all appropriate repairs as and when they become
\nnecessary even if they are necessitated by the effect of ordinary wear and
\ntear); (b) damage by the elements, fire and other casualties unless Tenant is
\nrequired by the provisions of this Lease, applicable law or the CC&Rs to
\nrepair and except that Tenant shall do such repairs, maintenance and other
\nthings described hereinabove to the extent that such damage is covered by
\ninsurance carried or required to be carried by Tenant hereunder; or (c)
\nrepairs or maintenance required as a result of the wrongful acts or wrongful
\nfailure to act of Landlord (but Tenant shall be required to do such repairs
\nor maintenance to the extent that the same is covered by insurance carried or
\nrequired to be carried by Tenant hereunder). (The provisions of this SECTION
\n12.1 shall not be construed as negating Tenant’s authority to make
\nalterations to the extent expressly permitted by other provisions of this
\nLease.) The necessity and adequacy of repairs made or to be made shall be
\nmeasured by standards which are appropriate for buildings of similar age,
\nconstruction and use that are situated in the City of Jacksonville, Florida.
\nTenant shall not commit or suffer, and Tenant shall use all reasonable
\nprecautions to prevent, waste, damage, or injury to the Parcels. All repairs
\nmade by Tenant shall be at least equal in quality and class to the original
\nwork and shall be made in compliance with (i) all rules, orders, regulations
\nand requirements of the Florida Board of Fire Underwriters or any successor
\nthereto and (ii) all applicable laws, ordinances, orders, rules, regulations,
\ncodes and requirements of the City of Jacksonville and all other Governmental
\nAuthorities, and (iii) the CC&R’s. When used in this Lease, the terms
\n“REPAIR” or “REPAIRS” shall include all alterations, additions,
\ninstallations, replacements, removals, renewals and Restorations. With
\nrespect to the repair of the Premises required as a result of any casualty or
\ntaking, if any of Tenant’s obligations under this SECTION 12.1 shall be
\ninconsistent with the requirements for Restoration under ARTICLES 8 and 9
\nhereof, the provisions of ARTICLES 8 and 9 shall govern.<\/p>\n
SECTION 12.2. Tenant, at its sole cost and expense, shall keep and
\nmaintain in clean and orderly condition the public and common portions and
\nareas of the Parcels as necessary and keep clean and free from dirt, rubbish,
\nobstructions and encumbrances, the sidewalks, driveways, parking areas,
\ngrounds, and curbs on, in front of or adjacent to the Parcels, and the plazas
\non the Parcels. Without limiting the generality of the foregoing, Tenant
\nshall, at its expense, be responsible for causing the observance and
\ncompliance with all requirements for the landscaping, irrigation,
\nmaintenance, repair, cleanliness and condition of the Parcels as set out in
\nthe CC&Rs or in Section 12 of the Agreement for Purchase and Sale between
\nWilma (or its Affiliate) and Landlord pursuant to which Landlord purchased
\nand acquired the Parcels; provided, however, that nothing herein shall be
\ndeemed to obligate Tenant to be responsible for the initial installation of
\nirrigation equipment or landscaping as required therein.<\/p>\n
SECTION 12.3. Tenant’s maintenance obligations shall include but not
\nbe limited to:<\/p>\n
a. Cleaning of the windows, both interior and exterior, no less
\n frequently than every six months.<\/p>\n
36<\/p>\n
b. Painting of the exterior surface of the tilt-up panels with
\n the appropriate materials in a timely fashion to insure that
\n each Building maintains a professional exterior appearance.<\/p>\n
c. Maintain the electrical circuitry with appropriate cleaning
\n and inspection by an electrician on an annual basis.<\/p>\n
d. Follow and perform the maintenance guidelines as outlined in
\n the operational and maintenance manuals for each and every
\n piece of equipment or material installed in or on any Building
\n by the Landlord.<\/p>\n
e. Maintain the landscape as required by the CC&R’s.<\/p>\n
f. Maintain the exterior masonry that forms the exterior of the
\n office portion of each Building.<\/p>\n
g. Maintenance of the parking lots (including repairs caused by
\n ordinary wear and tear).<\/p>\n
SECTION 12.4. Effective as of the Commencement Date, Landlord
\nassigns to Tenant all assignable warranties from contractors, vendors,
\nmanufacturers and others that Landlord may obtain in connection with its
\nconstruction or installation of any Building (including, without limitation,
\nany Equipment) or other improvement on the Land (each such warranty being
\nreferred to herein as a “VENDOR’S WARRANTY”). Vendors’ Warranties so assigned
\nin connection with the construction of the Initial Building shall be
\nsubstantially in accordance with those described on EXHIBIT H hereto in the
\ncolumn captioned “WARRANTY”, if any. (If Tenant timely so requests of
\nLandlord in writing, Landlord will cooperate in efforts by Tenant to obtain,
\nat Tenant’s sole cost, any of the additional warranty extensions from vendors
\nas are described on EXHIBIT H, but Landlord shall have no liability or
\nobligation of any kind under or concerning such additional warranty
\nextensions or on account of their unavailability.) Landlord warrants to
\nTenant (such warranty being referred to herein as “LANDLORD’S BACKUP
\nWARRANTY”) that the Initial Building constructed by Landlord for Tenant on
\nthe Land and leased by Landlord to Tenant under this Lease will be free of
\nsubstantial defects in materials and workmanship for a period of one year
\nfrom the Commencement Date; provided, however, that (i) with respect to such
\nitems as are also the subject of a Vendor’s Warranty, (A) Landlord’s Backup
\nWarranty as set out and described in the preceding portion of this sentence
\nwill be for a period of two years (except for elevator, as to which it will
\nremain one year) from the Commencement Date, and (B) Tenant shall not have,
\nand will not assert, any claim against Landlord under or with respect to
\nLandlord’s Backup Warranty except for a claim as to which Tenant has first
\nmade reasonably diligent efforts, in good faith, to obtain performance from
\nthe warrantor under the Vendor’s Warranty but such warrantor has failed to
\nperform under its Vendor’s Warranty, and (ii) Landlord’s Backup Warranty is
\nthe sole and exclusive warranty of Landlord concerning the Parcels, and
\nTenant shall not have or assert (and Tenant irrevocably waives and disclaims)
\nany other warranty or basis for a claim in the nature of a warranty claim
\nagainst Landlord for or concerning any Building or other improvement or the
\ncondition, quality, materials, workmanship, fitness, usefulness or utility <\/p>\n
37<\/p>\n
thereof. For purposes of satisfying the one-year or two-year periods (as the
\ncase may be) applicable to Landlord’s Backup Warranty, Tenant will be deemed
\nto have asserted a claim thereunder as of the date when Tenant shall have
\nasserted such claim with reasonable particularity, in writing, to and against
\nthe relevant vendor and shall have delivered a complete copy of such written
\nclaim to Landlord.<\/p>\n
ARTICLE 13
\n CHANGES, ALTERATIONS AND ADDITIONS<\/p>\n
SECTION 13.1. Subject to ARTICLES 8, 9 and 13, neither Tenant nor
\nLandlord shall demolish, replace or materially alter any Building or any part
\nthereof, or make any addition thereto, or construct any additional building
\non the Land, whether voluntarily or in connection with any mainte nance,
\nrepair or Restoration required by this Lease (collectively, “CAPITAL
\nIMPROVEMENTS”; and, individually, a “CAPITAL IMPROVEMENT”), unless the
\nfollowing requirements and, if applicable, the additional requirements set
\nforth in SECTION 13.2, are met:<\/p>\n
(a) Each Capital Improvement shall be made with reasonable
\ndiligence (subject to Unavoidable Delays) and in a good and workmanlike
\nmanner and in compliance with (i) all applicable licenses, permits and
\nauthorizations and all applicable building and zoning laws, (ii) all other
\napplicable laws, ordinances, orders, rules, regulations and requirements of
\nall Governmental Authorities, (iii) the orders, rules, regulations and
\nrequirements of any Board of Fire Underwriters having jurisdiction or any
\nsimilar body exercising similar functions, and (iv) all applicable
\nrequirements of the CC&Rs.<\/p>\n
(b) Each Capital Improvement shall substantially conform to
\nthe plans and specifications for the Capital Improvement, as the same may be
\napproved pursuant to SECTION 13.2 or, if SECTION 13.2 is not applicable
\nthereto, the Final Plans therefor.<\/p>\n
(c) Any Capital Improvement undertaken by Tenant shall be
\nconstructed so that the Landlord’s interest in the Premises and the property
\nand assets (including, without limitation, all Rental payable under this
\nLease) of, or funds appropriated to, Landlord, shall at all times be free of
\nliens, claims for lien, security interests or other encumbrances for or on
\naccount of labor, services or materials supplied or claimed to have been
\nsupplied to or for the benefit of, or installed in, the Premises.<\/p>\n
(d) No Capital Improvement shall be undertaken until the
\nparty undertaking the Capital Improvement (“RESPONSIBLE PARTY”) shall have
\ndelivered to the other (“NONRESPONSIBLE PARTY”) insurance policies or
\nabstracts thereof issued by responsible insurers, bearing notations
\nevidencing the payment of premiums or accompanied by other evidence
\nsatisfactory to Nonresponsible Party of such payments, for the following
\ninsurance, which shall be kept in full force and effect until the substantial
\ncompletion of the Capital Improvement:<\/p>\n
38<\/p>\n
(i) comprehensive general liability insurance, naming
\n Responsible Party as the insured and Nonresponsible Party and each
\n Secured Lender as additional insureds, such insurance to insure against
\n liability for bodily injury and death and for property damage in an
\n amount as provided in SECTION 7.1(a)(ii), such insurance to include
\n operations-premises liability, contractor’s protective liability on the
\n operations of all subcontractors, completed operations, broad form
\n contractual liability (designating the indemnity provisions of the
\n Construction Agreements if such coverage is provided by a contractor),
\n and if the contractor is undertaking foundation, excavation or
\n demolition work, an endorsement that such operations are covered and
\n that the “XCU Exclusions” have been deleted;<\/p>\n
(ii) automobile liability and property damage
\n insurance as described in SECTION 7.1(a)(iii);<\/p>\n
(iii) workers’ compensation providing statutory
\n benefits for all Persons employed in connection with the construction
\n at the Premises;<\/p>\n
(iv) builder’s all-risk insurance written on a
\n completed value basis with limits and other coverage (including
\n coverage for changes in ordinances and laws by Government Authorities
\n resulting in consequential and contingent liabilities or increases in
\n the cost of construction, with such limits as are reasonably required
\n by Nonresponsible Party). In addition, such insurance (x) shall contain
\n an authorization for the waiver of subrogation by Tenant and Landlord,
\n and an endorsement stating that “permission is granted to complete and
\n occupy,” and (y) if any offsite storage location listed with
\n Responsible Party’s insurer is used, shall cover, for full insurable
\n value, all materials and equipment which have been delivered to and are
\n stored at any such offsite storage location and which are intended for
\n use with respect to the Premises.<\/p>\n
Any proceeds received pursuant to the insurance coverage required under
\nSECTION 13.1(d)(iv) shall be paid in accordance with the provisions of
\nSECTION 7.2(a). Responsible Party shall comply with the provisions of
\nSECTIONS 7.1(b), 7.2(b) and 7.2(d) – 7.2(f) with respect to the policies
\nrequired by this SECTION 13.1(d). If under the provisions of any casualty,
\nliability or other insurance policy or policies then covering the Premises or
\nany part thereof any consent to such Capital Improvement by the insurance
\ncompany or companies issuing such policy or policies shall be required to
\ncontinue and keep such policy or policies in full force and effect,
\nResponsible Party shall obtain such consents and pay any additional premiums
\nor charges therefor that may be imposed by said insurance company or
\ncompanies.<\/p>\n
(e) Nonresponsible Party shall not refuse to join in the
\napplications for such licenses, permits and authorizations, provided the same
\nare made without cost or expense to Nonresponsible Party and will not in any
\nway diminish the development rights of any Parcel which is not included
\nwithin the Premises. Copies of all required permits and authorizations,
\ncertified to be true copies thereof by Responsible Party shall be delivered
\nto Nonresponsible Party prior to the commencement of any Capital Improvement.<\/p>\n
39<\/p>\n
SECTION 13.2. Responsible Party shall furnish to Nonresponsible
\nParty at least ten (10) days before the commencement of any Capital
\nImprovement, the items described in SECTION 8.4 with respect to the Capital
\nImprovements.<\/p>\n
SECTION 13.3. Tenant shall pay to Landlord, within ten (10) days
\nafter Landlord’s demand therefor, Landlord’s reasonable costs and expenses of
\nreviewing plans and specifications incurred by it if it is the Nonresponsible
\nParty.<\/p>\n
SECTION 13.4. Title to all additions, alterations, improvements and
\nreplacements made to the Building, including, without limitation, Capital
\nImprovements, shall be the property of the Responsible Party until the
\nExpiration Date, at which time title thereto and ownership thereof shall (if
\nnot already vested in Landlord) automatically vest in Landlord as provided in
\nSECTION 11.1(a), without any obligation by Landlord to pay any compensation
\ntherefor to Tenant, or at Landlord’s request, Tenant shall, at Tenant’s cost,
\npromptly remove the Capital Improvements and restore the Premises to their
\noriginal condition.<\/p>\n
SECTION 13.5. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 13.6. Responsible Party shall use reasonable efforts to
\ncause its contractors and all other workers at the Premises connected with
\nany maintenance, repairs, Restorations, additions, alterations, improvements
\nand replacements made to the Building, including, without limitation, any
\nCapital Improvements, to work harmoniously with each other and with the
\ncontractors and other workers of Nonresponsible Party, and neither party
\nshall engage in or permit, nor shall use reasonable efforts to suffer, any
\nconduct which may disrupt such harmonious relationship.<\/p>\n
ARTICLE 14
\n REQUIREMENTS OF PUBLIC AUTHORITIES AND OF
\n INSURANCE UNDERWRITERS AND POLICIES; OBLIGATIONS
\n UNDER OTHER SUPERIOR AGREEMENTS<\/p>\n
SECTION 14.1.<\/p>\n
(a) Unless required by the express provisions of this Lease
\nto have been obtained or caused to be obtained by Landlord or another Person
\nclaiming by, through or under Landlord, throughout the Term or any Renewal
\nTerms (if exercised) Tenant, at its sole cost and expense, shall (i) timely
\nobtain and thereafter keep in full force and effect all licenses, permits,
\nauthorizations and approvals of Governmental Authorities required for the
\nuse, occupancy, operation, maintenance, repair and insurability of the
\nPremises, and (ii) unless caused by the negligence or wrongful acts of
\nLandlord, promptly comply with and discharge of record any violations of any
\nand all applicable present and future laws, rules, orders, ordinances,
\nregulations, statutes, requirements, codes, resolutions and executive orders
\nnow existing or hereafter created, of all Governmental Authorities and of any
\nand all of their departments and bureaus and of any applicable Fire Rating
\nBureau or other body exercising similar functions (collectively,
\n“REQUIREMENTS”) affecting the Premises without <\/p>\n
40<\/p>\n
regard to the nature of the work required to be done, whether ordinary or
\nextraordinary, foreseen or unforeseen or involving or requiring any Capital
\nImprovements, structural changes, alterations or additions in or to the
\nPremises and whether or not such changes, alterations or additions are
\nrequired on account of any particular use to which the Premises or any part
\nthereof may have been, then are being, or are proposed by Tenant (or anyone
\nholding by, through or under Tenant) to be, put. Tenant also shall comply
\nwith any and all provisions and requirements of any casualty, liability or
\nother insurance policy required to be carried by Tenant under the provisions
\nof this Lease.<\/p>\n
SECTION 14.2. Tenant shall have the right, after notice to Landlord,
\nto contest by appropriate legal proceedings the validity of any Requirements
\nor the application thereof, at Tenant’s sole cost and expense, but only so
\nlong as neither the Parcels nor any part thereof, nor any part of the rents,
\nissues and profits thereof, would, by reason of such postponement or
\ndeferment, be, in the reasonable judgment of Landlord, in danger of being
\nforfeited or lost, or becoming unavailable to Landlord or any Secured Lender
\nor diminished in value. During such contest, compliance with any such
\ncontested Requirements may, subject to the following provisions of this
\nSection, be deferred by Tenant. Any such proceeding instituted by Tenant
\nshall be begun as soon as is reasonably possible after the issuance of any
\nsuch contested matter and shall be prosecuted in good faith and with
\nreasonable diligence to a final determination by the court or other
\nGovernmental Authority having final jurisdiction. Notwithstanding the
\nforegoing, Tenant promptly shall comply with any such Requirements and
\ncompliance shall not be deferred if at any time the Parcels, or any part
\nthereof, or any interest of Landlord or a Secured Lender, shall be in danger
\nof being forfeited or lost or becoming unavailable to Landlord or any Secured
\nLender or diminished in value, or if Landlord or a Secured Lender shall be in
\ndanger of being subject to criminal or civil liability, penalty or other
\nsanction by reason of noncompliance therewith. Landlord shall cooperate with
\nTenant in any such contest to the extent Tenant may reasonably request,
\nprovided that Landlord shall not thereby incur or be subject to any costs,
\nexpenses or liabilities (unless Landlord or another Person claiming by,
\nthrough or under Landlord and for whose acts Landlord is responsible
\nhereunder, is responsible for the noncompliance); and Tenant hereby agrees to
\nreimburse, defend, indemnify and hold harmless Landlord for all such costs,
\nexpenses, claims and liabilities including, without limitation, reasonable
\nattorneys’ fees and expenses. Tenant shall defend, indemnify and hold
\nLandlord harmless from and against all and any costs, expenses, losses,
\ndamages or liabilities that Landlord may sustain by reason of Tenant’s
\nfailure or delay in complying with any Requirements for which Tenant is
\nresponsible and which is not caused by the wrongful act of Landlord or
\nanother Person claiming by, through or under Landlord and for whose acts
\nLandlord is responsible hereunder, including, without limitation, any
\nproceeding brought by Tenant. In the event that Tenant, as a result of such
\ncontest, receives any reimbursement or other payment on account of the cost
\nof compliance with the contested Requirement, which compliance was performed
\nby Landlord or any Secured Lender, then Tenant shall receive and hold the
\nsame in trust for Landlord or such Secured Lender (as the case may be) and,
\nwithin ten (10) days after receiving the same, Tenant shall deliver the
\namount of such reimbursement or other payment to Landlord or such Secured
\nLender, as the case may be, less, however, the amount of the reasonable costs
\nand expenses incurred by Tenant in such proceeding.<\/p>\n
41<\/p>\n
SECTION 14.3. Prior to the Commencement Date, Landlord, at its sole
\ncost and expense, and from and after the Commencement Date, Tenant, at its
\nsole cost and expense, shall perform and comply with and cause the Premises
\nto comply with all of, and shall not do or permit anything which would
\nviolate any of, the terms, covenants and conditions (to the extent
\nsusceptible of performance and compliance by Tenant) which are applicable to
\nthe Parcels and pertain to any period of time during the Term or any Renewal
\nTerms, under (a) the CC&Rs and all other laws, ordinances, covenants, orders,
\ndocuments, restrictions, agreements and other matters listed on EXHIBIT B
\nattached hereto and (b) any other covenants, documents, restrictions,
\nagreements and other matters affecting the Parcels (or any of them) which are
\nentered into or become effective after the date of this Lease to which
\nLandlord (in the case of Landlord’s obligation under this Section) or Tenant
\n(in the case of Tenant’s obligation under this Section) is a party or to
\nwhich it consents.<\/p>\n
ARTICLE 15
\n LEASEHOLD IMPROVEMENT AGREEMENT<\/p>\n
Substantially simultaneously with the execution of this Lease,
\nLandlord and Tenant will execute the Leasehold Improvement Agreement, in a
\nform substantially identical to EXHIBIT C attached hereto but with such
\nmodifications, revisions and changes to such form (if any) as they may
\nmutually agree upon. However, if by the 30th day following the date of this
\nLease Landlord and Tenant shall have failed, for any reason whatsoever, to
\nexecute a separate Leasehold Improvement Agreement, they shall be
\ncontractually bound by each and every one of the terms, conditions and
\nprovisions of EXHIBIT C attached hereto as though they had executed such
\nEXHIBIT C independently of their execution of this Lease.<\/p>\n
ARTICLE 16
\n DISCHARGE OF LIENS; BONDS<\/p>\n
SECTION 16.1. Tenant shall not create or cause to be created any
\nlien, encumbrance, security interest or charge upon any property or assets
\n(including, without limitation, any Rental payable hereunder) of Landlord, or
\nupon the estate, rights or interest of Landlord in the Parcels or the
\nPremises or any part thereof or in or concerning this Lease.<\/p>\n
SECTION 16.2. Subject to Tenant’s rights to contest which are
\nexpressly set out herein, if at any time any mechanic’s, laborer’s or
\nmaterialman’s lien created or caused to be created by Tenant or arising as a
\nresult of any act or omission of, or relating to any contract of Tenant or
\nany Person claiming or acting by, through or under Tenant shall be filed
\nagainst Landlord’s interest in the Parcels or the Premises or any part
\nthereof, or if any public improvement lien created or caused to be created by
\nTenant shall be filed against any property or assets of Landlord, then
\nTenant, within twenty (20) days after actual notice of the filing thereof, or
\nsuch shorter period as may be required by a Secured Lender, shall cause the
\nsame to be discharged of record by payment, deposit, bond, order of a court
\nof competent jurisdiction or otherwise. If Tenant shall fail to cause such
\nlien to be discharged of record within the period aforesaid, then, in
\naddition to any other right or remedy, Landlord may, but <\/p>\n
42<\/p>\n
shall not be obligated to, cause the same of record to be discharged as
\naforesaid in any manner permitted by law. Any amount so paid by Landlord,
\nincluding all reasonable costs and expenses (including, without limitation,
\nreasonable attorneys’ fees and disbursements) incurred by Landlord in
\nconnection therewith, together with interest thereon at the Late Charge Rate
\nfrom the respective dates of Landlord’s making of the payment or incurring of
\nthe costs and expenses until paid in full, shall constitute additional Rental
\npayable by Tenant under this Lease and shall be paid by Tenant to Landlord on
\ndemand. Notwithstanding the foregoing provisions of this SECTION 16.2, Tenant
\nshall not be required to discharge of record any such lien (i) which was not
\ncreated or caused to be created by Tenant (or any Person acting by, through,
\nfor or under Tenant) or did not arise as a result of any act or omission of,
\nor relate to any contract of, Tenant (or any Person acting by, through, for
\nor under Tenant), or (ii) during such time as Tenant is in good faith
\ncontesting the same (but only as long as neither the Landlord’s interest in
\nthe Premises nor any part thereof, nor any part of the rents, issues and
\nprofits thereof, would, by reason of such postponement or deferment, be, in
\nthe reasonable judgment of Landlord, in danger of being forfeited, lost or
\ndiminished in value).<\/p>\n
SECTION 16.3. Except for Restorations or Capital Improvements
\nperformed or installed by Tenant as expressly authorized by the provisions of
\nthis Lease, nothing in this Lease contained shall be deemed or construed in
\nany way as constituting the consent or request of Landlord, express or
\nimplied, by inference or otherwise, to any contractor, subcontractor, laborer
\nor materialman for the performance of any labor or services or the furnishing
\nof any materials for any improvement, alteration or repair of any of the
\nParcels or any part thereof, nor as giving Tenant (or any Person acting by,
\nthrough, for or under Tenant) any right, power or authority to contract for
\nor permit the rendering of any labor or services or the furnishing of
\nmaterials that could give rise to the filing of any lien against any of the
\nParcels or any part thereof or any property or assets (including, without
\nlimitation, any Rental payable hereunder) of Landlord. Notice is hereby given
\nthat Landlord shall not be liable for any work or services performed or to be
\nperformed at or for the benefit of the Parcels or for any materials furnished
\nor to be furnished at or for the benefit of the Parcels for any of the
\nforegoing, and that no mechanic’s or other lien for such work or materials
\nshall attach to or affect the estate or interest of Landlord in and to the
\nParcels or any part thereof or any property or assets (including, without
\nlimitation, any Rental payable hereunder) of Landlord.<\/p>\n
ARTICLE 17
\n REPRESENTATIONS<\/p>\n
SECTION 17.1. Landlord represents and warrants as follows (all of
\nthe following representa tions and warranties are made as of the Commencement
\nDate unless expressly stated below to be made as of a different date):<\/p>\n
(a) To the best of Landlord’s knowledge, the Premises
\ncomply with all applicable laws, ordinances, rules and regulations of
\nGovernmental Authorities, including but not limited to Environmental Laws and
\nthe Americans with Disabilities Act. Landlord will provide at Landlord’s
\nexpense all permits, authorizations and approvals required for the
\nconstruction of the Initial Building <\/p>\n
43<\/p>\n
and will promptly comply with and discharge of record any violations of any
\nand all present Requirements.<\/p>\n
(b) Except for the rights of Secured Lenders under
\ncollateral security documents securing Secured Loans and except for any
\nrights which are junior and subordinate to, and are not inconsistent with,
\nany of the rights or options granted to Tenant by this Lease, the Premises
\nare not subject to any outstanding agreement for sale, option, lease, or
\nother rights of any Person other than Tenant to acquire an interest therein.
\nLandlord has not received any notice of violation by the Premises of any
\nCC&R’s, Restrictions or Requirements which has not been cured, dismissed or
\nwithdrawn, and Landlord covenants that it will immediately notify Tenant in
\nwriting upon Landlord’s receipt of notice of any such violation.<\/p>\n
(c) To the best of Landlord’s actual knowledge, except as
\ndisclosed in writing to Tenant, all improvements and systems, whether
\nmechanical or structural, on or within the Premises (including, but not
\nlimited to, Equipment installed by Landlord, roofs, exterior walls, floors,
\nHVAC, electrical, plumbing and roads and parking lots) have been constructed
\nin accordance with the Plans (as defined herein) and are in good working
\ncondition. (The Warranty set out in the preceding sentence is in addition to,
\nand not in limitation or restriction of, Landlord’s Backup Warranty.) All
\nVendors’ Warranties made by third party contractors or vendors relating to
\nthe Initial Building that are identified on EXHIBIT H attached hereto (under
\nthe column headed “Warranty”) are assignable to Tenant without the consent of
\nany third party (or such consent has been or will be obtained) and effective
\nas of the Commencement Date will be assigned by Landlord to Tenant. Landlord
\nagrees to assist Tenant in purchasing (at Tenant’s sole cost) the extended
\nwarranties offered by equipment manufacturers or suppliers as listed on
\nEXHIBIT H, if requested in writing to do so by Tenant.<\/p>\n
(d) Landlord is authorized to do business in the State of
\nFlorida and to own the Parcels and the Premises, and has full power and
\nauthority to enter into and perform this Lease in accordance with its terms.
\nThe persons executing this Lease on behalf of the Landlord have been duly
\nauthorized to do so. This Lease is a legal, valid and binding obligation of
\nLandlord and is enforceable against Landlord in accordance with its terms.<\/p>\n
(e) Prior to the Commencement Date, Landlord will not
\npermit AD VALOREM taxes on the Parcels to become delinquent.<\/p>\n
(f) Except in connection with any Secured Loan (including,
\nwithout limitation, any loan to finance the construction by Landlord of the
\nInitial Building and any loan which refinances any such loan), and except for
\nany matter identified on EXHIBIT B, after the date of this Lease Landlord
\nwill not convey or dedicate any portion of, or execute, grant or convey any
\nlien, easement, license or other encumbrance on, the Premises without the
\nprior written consent of Tenant, which consent Tenant agrees shall not
\nunreasonably be withheld or delayed. Tenant acknowledges that it has
\nexamined, and found acceptable, the status of title to the Premises
\n(including, without limitation, all covenants and easements burdening the
\nPremises) as in effect on the date of this Lease.<\/p>\n
44<\/p>\n
(g) Landlord holds (or before the Commencement Date will
\nacquire) fee simple title to the Premises, and Landlord has (or will by that
\ndate have) the right to lease the Premises. So long as Tenant is not in
\ndefault hereunder, Tenant shall have the peaceful and quiet use and
\npossession of the Premises and any easements appurtenant thereto which have
\nexpressly been granted to Tenant hereunder, without hindrance on the part of
\nLandlord, and Landlord shall warrant and defend Tenant such peaceful and
\nquiet use and possession against the claims of all persons acting or claiming
\nby, through or under Landlord, subject to the matters set forth on EXHIBIT B.<\/p>\n
SECTION 17.2. Landlord represents that as of the date of execution
\nof this Lease there is, and as of the Commencement Date there will be, no
\npending litigation adversely affecting the Premises.<\/p>\n
SECTION 17.3. Tenant acknowledges and agrees as follows: (i)
\nLandlord has made no representation regarding subsurface conditions on or
\naffecting the Premises, and Landlord has delivered to Tenant the Report of
\nGeotechnical Exploration dated June 17, 1994 by Law Engineering and
\nEnvironmental Services as Law Project No. 442-07133-01, and Tenant is relying
\non said report but not on any representation or statement of Landlord; (ii)
\nexcept as expressly set out herein, no representation, statement, or warranty
\nof any kind, express or implied, has been made by or on behalf of Landlord in
\nrespect of the Parcels, the status of title to the Parcels, the zoning or
\nother laws, regulations, ordinances, rules and orders applicable thereto,
\nTaxes, Impositions, or the use that may be made of the Premises; except as
\nexpressly set out herein, no representation, statement or warranty of any
\nkind, express or implied, has been made by or on behalf of Landlord that
\nwould entitle or permit Tenant to have any abatement, reduction, set-off,
\ncounterclaim, defense or deduction with respect to any Rental or other sum
\npayable hereunder, and Tenant has relied on no such representation, statement
\nor warranty, and in no event whatsoever shall Landlord be liable by reason of
\nany claim of false, inaccurate or misleading representation or
\nmisrepresentation or breach of warranty with respect thereto.<\/p>\n
SECTION 17.4. Tenant represents and warrants that Tenant is, and at
\nall times from the date hereof through the end of the Term will be,
\nauthorized to do business in the State of Florida and to lease, use and
\noperate the Premises as provided or contemplated in this Lease, and Tenant
\nhas full power and authority to enter into and perform its obligations under
\nthis Lease in accordance with its terms. The persons executing this Lease on
\nbehalf of the Tenant have been duly authorized to do so. This Lease is a
\nlegal, valid and binding obligation of Tenant enforceable against Tenant in
\naccordance with its terms.<\/p>\n
ARTICLE 18
\n LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC.<\/p>\n
Except to the extent (if any) expressly provided herein, neither
\nLandlord nor any Secured Lender, respectively, shall in any event whatsoever,
\nunless caused by its own negligence or wrongful act or by the acts of any
\nPerson claiming by, through or under it or (in the case of Landlord) by
\nLandlord’s failure to perform its obligations herein, be liable for any
\ninjury, damage or loss to Tenant or to any Person claiming by, through or
\nunder Tenant, happening on, in or about the Premises or <\/p>\n
45<\/p>\n
the Parcels or their appurtenances (including, without limitation, street and
\nsidewalk areas) nor for any injury or damage to the Premises or the Parcels
\nor to any property belonging to Tenant or any Person claiming by, through or
\nunder Tenant, which may be caused by or result from any of the following
\noccurring on or after the Commencement Date: (a) any fire or other casualty,
\n(b) any action of wind, water, lightning or any other of the elements, (c)
\nany use, misuse or abuse of any Building or any portion thereof, or other
\nacts or negligence of Tenant, any Subtenant, licensee, invitee or contractor
\nof Tenant or any Subtenant, happening on, in or about the Premises or the
\nParcels or their appurtenances (including, without limitation, street and
\nsidewalk areas), (d) the condition of the Premises or the Parcels during the
\nTerm or any defect in the Land, any Building, the Equipment or any other
\nequipment, machinery, wiring, apparatus or appliances whatsoever now or
\nhereafter situated in, at, upon or about the Premises or the Parcels, or any
\nleakage, bursting or breaking up of the same, (e) any failure or defect of
\nwater, heat, gas, chilled water, steam, electric light or power supply, or of
\nany apparatus, machinery or appliance in connection therewith, (f) any
\ngasoline, oil, steam, gas, electricity, chemicals, water, rain, snow or mud
\nwhich may leak, run or flow from the river, roadways, streets, subsurface
\nareas and facilities, sewers, mains, pipes, conduits, Equipment, or any other
\nfacilities, equipment, machinery, wiring, apparatus or appliances whatsoever,
\nnow or hereafter situate in, at, upon, about or in the vicinity of the
\nPremises or Parcels or (g) any other cause whatsoever.<\/p>\n
ARTICLE 19
\n INDEMNIFICATION OF LANDLORD<\/p>\n
SECTION 19.1. Tenant hereby agrees to defend, indemnify and save
\nLandlord harmless from and against any and all liabilities, suits,
\nobligations, fines, damages, penalties, claims, costs, charges and expenses
\nof any and every kind whatsoever (including, without limitation, reasonable
\nengineers’, architects’ and attorneys’ fees and disbursements) which may be
\nimposed upon or incurred by or asserted against Landlord by reason of any of
\nthe following occurring during the Term or any Renewal Term (if exercised),
\nexcept to the extent (if any) either caused by the negligent act of Landlord
\nor any Person acting by, through or under Landlord or covered by insurance
\nunder which the insurer has acknowledged its liability to Landlord (Landlord
\nshall have no obligation to carry or maintain any such insurance or to waive
\nor release any rights of subrogation against Tenant in connection with any
\nsuch insurance which it may decide to carry):<\/p>\n
(a) the negligence or wrongful act or omission of Tenant or
\nany Person acting, or holding by, through or under Tenant;<\/p>\n
(b) any work or thing done in, on or about the Premises or
\nany part thereof by a Person other than Landlord or a Person acting by,
\nthrough or under Landlord;<\/p>\n
(c) any use, non-use, possession, occupation, alteration,
\nrepair, condition, operation, maintenance or management of the Premises or
\nany part thereof or of any sidewalk or curb adjacent thereto after the
\nCommencement Date;<\/p>\n
46<\/p>\n
(d) any accident, injury (including death at any time
\nresulting therefrom) or damage to any Person or property occurring in, on or
\nabout the Premises or any part thereof or in, on or about any sidewalk or
\ncurb adjacent thereto;<\/p>\n
(e) any failure on the part of Tenant timely to pay Rental
\nor to perform or comply with any of the covenants, agreements, warranties,
\nterms or conditions contained in this Lease on Tenant’s part to be performed
\nor complied with;<\/p>\n
(f) any lien or claim which may be filed, asserted or
\nalleged to have arisen against or on Landlord’s interest in the Premises or
\nthe Premises created or caused to be created by Tenant or any Person acting,
\nclaiming or holding by, through or under Tenant, or any lien or claim of lien
\nwhich may be filed, asserted or alleged to have arisen out of this Lease and
\ncreated or caused to be created by Tenant or any Person acting, claiming or
\nholding by, through or under Tenant against any property or assets
\n(including, without limitation, any Rental) of Landlord under the laws of the
\nState of Florida or of any other Governmental Authority or any liability
\ncreated or caused to be created by Tenant or any Person acting, claiming or
\nholding by, through or under Tenant which may be asserted against Landlord
\nwith respect thereto;<\/p>\n
(g) any failure on the part of Tenant or any Person acting,
\nclaiming or holding by, through or under Tenant to keep, observe or perform
\nany of the terms, covenants, agreements, provisions, conditions or
\nlimitations contained in any Construction Agreements, Subleases or other
\ncontracts and agreements affecting the Premises, on Tenant’s part to be kept,
\nobserved or performed;<\/p>\n
(h) any contest permitted pursuant to the provisions
\nhereof; or<\/p>\n
(i) any breach by Tenant or any Person acting, holding or
\nclaiming by, through or under Tenant of any provision applicable to the
\nPremises under (1) any of the CC&R’s, (2) any agreement affecting any of the
\nParcels which is entered into or becomes effective after the Commencement
\nDate to which Tenant is a party or to which Tenant consents or (3) any
\nagreement, document, covenant, guideline or other matter listed on EXHIBIT B
\nattached hereto (except agreements between Landlord and a Secured Lender).<\/p>\n
SECTION 19.2. The obligations of Tenant under this ARTICLE 19 shall
\nnot be affected in any way by the absence in any case of covering insurance
\nor by the failure or refusal of any insurance carrier to perform any
\nobligation on its part under insurance policies.<\/p>\n
SECTION 19.3. If any claim, action or proceeding is made or brought
\nagainst Landlord against which Landlord is indemnified pursuant to SECTION
\n19.1 or any other provision of this Lease, then, upon demand by Landlord,
\nTenant, at its sole cost and expense, shall diligently resist or defend such
\nclaim, action or proceeding in Landlord’s name. The foregoing
\nnotwithstanding, Landlord may engage its own attorneys to defend it or to
\nassist in its defense.<\/p>\n
47<\/p>\n
SECTION 19.4. The provisions of this ARTICLE 19 shall survive the
\nExpiration Date with respect to any liability, suit, obligation, fine,
\ndamage, penalty, claim, cost, charge or expense arising out of or in
\nconnection with any action or failure to take action or any other matter
\noccurring during the Term or any Renewal Term of this Lease.<\/p>\n
SECTION 19.5. When a claim is caused by the joint negligence or
\nwillful conduct of Tenant and Landlord or Tenant and a Person unrelated to
\nTenant (except Tenant’s agents, employees, officers, contractors, licensees,
\nor invitees), Tenant’s duty to defend, indemnify and save Landlord harmless
\nshall be in proportion to Tenant’s allocable share of the joint negligence or
\nwillful misconduct.<\/p>\n
ARTICLE 20
\n INDEMNIFICATION OF TENANT<\/p>\n
SECTION 20.1 Landlord hereby agrees to defend, indemnify and save
\nTenant harmless from and against any and all liabilities, suits, obligations,
\nfines, damages, penalties, claims, costs, charges and expenses of any and
\nevery kind whatsoever (including, without limitation, reasonable engineers’,
\narchitects’ and attorneys’ fees and disbursements) which may be imposed upon
\nor incurred by or asserted against Tenant by reason of any of the following
\ncaused by the negligence or wrongful act or wrongful omission (but, nothing
\nin this SECTION 20.1 shall be deemed to create or impose on Landlord any
\nobligation or liability of any kind which is in the nature of, or has the
\nsame or similar effect as, a warranty of, concerning, relating to or on
\naccount of any construction by Landlord or its agents or contractors of any
\nBuilding, structure or other improvements of any kind, and further, as to
\nomissions after the Commencement Date, Landlord’s undertakings hereunder
\nshall apply only if Landlord was obligated by the express provisions of this
\nLease to act otherwise) of Landlord or its officers, employees, agents,
\ncontractors, licensees or invitees (except to the extent, if any, either
\ncaused by the negligence of Tenant or any Person acting by, through or under
\nTenant or covered by insurance under which the insurer has acknowledged its
\nliability to Tenant) or required by the provisions of this Lease to be
\ncovered by insurance):<\/p>\n
(a) any work or thing done in, on or about the Premises or
\nany part thereof by (or any Person acting for Landlord);<\/p>\n
(b) any use, non-use, possession, occupation, alteration,
\nrepair, condition, operation, maintenance or management of the Premises or
\nany part thereof or of any sidewalk or curb adjacent thereto by Landlord
\nbefore the Commencement Date, or any actual use or act of Landlord occurring
\nafter the Commencement Date;<\/p>\n
(c) any accident, injury (including death at any time
\nresulting therefrom) or damage to any Person or property occurring in, on or
\nabout the Premises or any part thereof or in, on or about any sidewalk or
\ncurb adjacent thereto before the Commencement Date;<\/p>\n
48<\/p>\n
(d) any failure on the part of Landlord to perform or
\ncomply with any of the covenants, agreements, warranties, terms or conditions
\ncontained in this Lease on Landlord’s part to be performed or complied with;
\nor<\/p>\n
(e) any failure or breach on the part of Landlord to keep,
\nobserve or perform any of the terms, covenants, agreements provisions,
\nconditions, or limitations contained in any other contract or agreement
\naffecting the Premises, on Landlord’s part to be kept, observed or performed
\nand not to be performed by Tenant pursuant to the provisions of this Lease.<\/p>\n
SECTION 20.2. The obligations of Landlord under this ARTICLE 20
\nshall not be affected in any way by the absence in any case of covering
\ninsurance or by the failure or refusal of any insurance carrier to perform
\nany obligation on its part under insurance policies.<\/p>\n
SECTION 20.3. If any claim, action or proceeding is made or brought
\nagainst Tenant against which Tenant is indemnified pursuant to SECTION 20.1
\nor any other provision of this Lease, then, upon demand by Tenant, Landlord,
\nat its sole cost and expense, shall diligently resist or defend such claim,
\naction or proceeding in Tenant’s name. The foregoing notwithstanding, Tenant
\nmay engage its own attorneys to defend it or to assist in its defense.<\/p>\n
SECTION 20.4. The provisions of this ARTICLE 20 shall survive the
\nExpiration Date with respect to any liability, suit, obligation, fine,
\ndamage, penalty, claim, cost, charge or expense arising out of or in
\nconnection with any action or failure to take action or any other matter
\noccurring during the Term or any Renewal Term of this Lease.<\/p>\n
SECTION 20.5. When a claim is caused by the joint negligence or
\nwillful misconduct of Landlord and Tenant or Landlord and a Person unrelated
\nto Landlord (except Landlord’s agents, employees, officers, contractors,
\nlicensees, or invitees), Landlord’s duty to defend, indemnify and save Tenant
\nharmless shall be in proportion to Landlord’s allocable share of the joint
\nnegligence or willful misconduct.<\/p>\n
ARTICLE 21
\n RIGHT OF INSPECTION<\/p>\n
SECTION 21.1. After the Commencement Date, Tenant shall permit
\nLandlord and the Secured Lenders and their respective agents, representatives
\nand contractors to enter the Premises at all reasonable times, on reasonable
\nnotice (except in the case of an emergency, in which event no notice will be
\nrequired), for the purposes of (a) inspecting the Premises, (b) determining
\nwhether or not Tenant is in compliance with its obligations hereunder, (c)
\nmaking any repairs or Restoration which Landlord is permitted or required to
\nperform pursuant to the terms of this Lease, (d) in the case of an emergency
\n(i.e., a condition presenting imminent danger to the health or safety of
\npersons or to property), or following an Event of Default, making any
\nnecessary repairs or alterations to the Premises or performing any work
\ntherein, whether necessitated by a Requirement or otherwise, provided that in
\nthe case of an emergency Landlord or the Secured Lender shall make a
\nreasonable <\/p>\n
49<\/p>\n
attempt to communicate with Tenant to alert Tenant to the necessary repair,
\nand (e) performing any other obligations of Landlord which reasonably require
\naccess to the Premises. Landlord’s and each Secured Lender’s respective
\ninspection rights may not be exercised before an Event of Default occurs
\nunless Landlord or such Secured Lender first executes a confidentiality
\nagreement in the form of EXHIBIT I attached hereto (the “CONFIDENTIALITY
\nAGREEMENT”).<\/p>\n
SECTION 21.2. Landlord or a Secured Lender, as the case may be,
\nduring the progress of any Restoration or any Repair, alteration or work
\nreferred to in SECTION 21.1, may keep and store at the Premises in or at
\nplaces to be reasonably designated by Tenant all necessary or useful
\nmaterials, tools, supplies and equipment. Landlord or a Secured Lender, as
\nthe case may be, shall not be liable for inconvenience, annoyance,
\ndisturbance, or loss of business of Tenant or any Subtenant by reason of
\nmaking such repairs, Restoration or the performance of any such work, or on
\naccount of bringing materials, tools, supplies and equipment into the
\nPremises during the course thereof, and the obligations of Tenant under this
\nLease shall not be affected thereby. To the extent that Landlord or a Secured
\nLender undertakes such work or repairs and such work or repairs shall require
\ninterruption of any services to or access of Tenant or a Subtenant or the
\nentry into any space covered by this Lease or a Sublease, such work or
\nrepairs shall be commenced and completed with reasonable diligence, subject
\nto Unavoidable Delays, and in such a manner as not to unreasonably interfere
\nwith the conduct of business in such space and if requested by Tenant such
\nwork or repairs will be performed outside of normal business hours and on
\nweekends, at Tenant’s expense, unless the work or repairs are required due to
\na breach by Landlord under this Lease.<\/p>\n
SECTION 21.3. Landlord and Persons authorized by Landlord shall have
\nthe right to enter and pass through the Premises at any reasonable time upon
\nreasonable notice to Tenant to show the Premises to prospective purchasers,
\ntenants and Secured Lenders; provided, however, that Landlord and any such
\nPersons agree to execute the Confidentiality Agreement.<\/p>\n
ARTICLE 22
\n LANDLORD’S RIGHT TO PERFORM TENANT’S COVENANTS<\/p>\n
SECTION 22.1.<\/p>\n
(a) If an Event of Default occurs under this Lease and all
\napplicable cure periods have expired, then Landlord, without waiving or
\nreleasing Tenant from any default or from any obligation of Tenant contained
\nin this Lease, may (but shall be under no obligation to) perform such
\nobligations on Tenant’s behalf, at Tenant’s cost. In addition, Landlord may
\nso perform the obligation in question upon the occurrence of a Default
\nwithout waiting until such Default has become an Event of Default if the
\nfailure to perform such obligation may result in a loss, forfeiture or
\ndiminution in value of the Premises or any part thereof or any part of the
\nrents, issues and profits thereof. In addition to the foregoing, if Tenant
\nshall have failed to deliver to Landlord a certificate or other evidence
\nreasonably satisfactory to Landlord of the existence of any new or renewal
\ninsurance policy required under SECTION 7.1 of this Lease prior to the date
\nthat is seven (7) Business Days prior to the expiration of the policy in
\nquestion or if for any other reason the insurance described in SECTION <\/p>\n
50<\/p>\n
7.1(a) is no longer in full force and effect, then upon twenty-four (24)
\nhours’ notice from Landlord or any time thereafter, Landlord, without waiving
\nor releasing Tenant from any obligation of Tenant contained in this Lease,
\nmay (but shall be under no obligation to) obtain or cause to be obtained, at
\nTenant’s sole cost and expense, some or all of the insurance (covering a
\nperiod of one year or less) for which such certificate or other evidence has
\nnot been delivered to Landlord as aforesaid. Landlord may exercise the
\nforegoing right without giving Tenant a notice of Default and Landlord shall
\nhave the right to enforce collection of its costs and expenses incurred in
\nobtaining such insurance without declaring an Event of Default by Tenant.<\/p>\n
(b) Without limiting Landlord’s rights under SECTION
\n22.1(a) or elsewhere in this Lease contained, if Landlord shall be given any
\nnotice of default under any Secured Loan and Tenant is then in Default under
\nthis Lease with respect to an obligation the non-performance of which is the
\nbasis (in whole or in part) for such notice of default, then, whether or not
\nsuch Default has become an Event of Default, Landlord, without waiving or
\nreleasing Tenant from any default or any obligation of Tenant contained in
\nthis Lease, may (but shall be under no obligation to) perform such obligation
\non Tenant’s behalf, at Tenant’s cost; provided, however, that Landlord shall
\nimmediately forward to Tenant a copy of any such notice of default received
\nfrom such Secured Lender.<\/p>\n
SECTION 22.2. All reasonable sums paid by Landlord and all
\nreasonable costs and expenses (including, without limitation, reasonable
\nattorneys’ fees and disbursements) incurred by Landlord in connection with
\nits performance under SECTION 22.1 of any of Tenant’s obligations, together
\nwith interest thereon at the Late Charge Rate from the respective dates that
\nLandlord makes each such payment until the date of actual repayment to
\nLandlord, shall be paid by Tenant to Landlord on demand as additional rent.
\nAny payment or performance by Landlord pursuant to the foregoing provisions
\nof this ARTICLE 22 shall not be a waiver or release of any breach or default
\nof Tenant with respect thereto or of any right of Landlord to terminate this
\nLease, institute summary proceedings, exercise any other right or remedy, or
\ntake such other action as may be permissible hereunder if an Event of Default
\nby Tenant shall have occurred. Landlord shall not be limited in the proof of
\nany damages which Landlord may claim against Tenant arising out of or by
\nreason of Tenant’s failure to provide and keep insurance in force as
\naforesaid to the amount of the insurance premium or premiums not paid, but
\nLandlord also shall be entitled to recover, as damages for such breach, the
\nuninsured amount of any loss or damage and the costs and expenses of suit,
\nincluding, without limitation, reasonable attorneys’ fees and disbursements,
\nsuffered or incurred by reason of damage to or destruction of the Parcels
\nwhich damage or destruction was required to be insured against hereunder.<\/p>\n
ARTICLE 23
\n NO TERMINATION OR ABATEMENT OF RENTAL<\/p>\n
SECTION 23.1. This Lease is a completely net lease to Landlord, and
\nit shall not terminate except as expressly provided in SECTION 23.3 or
\nARTICLES 8, 9 and 25; nor shall Tenant be entitled to any abatement or
\nreduction, set-off, counterclaim, defense or deduction with respect to any
\nRental or other sum payable hereunder except as expressly provided in
\nARTICLES 9 and 48 and EXHIBIT C; <\/p>\n
51<\/p>\n
nor shall the obligations of Tenant hereunder be affected (except in
\naccordance with an express provision of this Lease) by reason of (a) any
\nprohibition, limitation, restriction or prevention of Tenant’s use, occupancy
\nor enjoyment of the Premises, or any interference with such use, occupancy or
\nenjoyment by any Person, other than Landlord, a Secured Lender, or their
\nrespective agents or successors, (b) any default by or claim against Landlord
\nhereunder or under any other agreement, (c) the impossibility or illegality
\nof performance by Landlord, Tenant or both, (d) any action of any
\nGovernmental Authority, or (e) any other cause whatsoever, whether similar or
\ndissimilar to the foregoing. The covenants, agreements and obligations of
\nTenant hereunder are and shall in all events be construed as covenants,
\nagreements and obligations which are separate and independent from those of
\nLandlord, and they shall continue unaffected, regardless of any breach of
\nLandlord’s covenants and agreements hereunder, except to the extent (if any)
\nsuch obligations of Tenant shall have been modified or terminated in writing
\npursuant to an express provision of this Lease.<\/p>\n
SECTION 23.2. Without limitation of the provisions of SECTION 23.1,
\nexcept as expressly provided otherwise in this Lease, Tenant shall remain
\nobligated under this Lease in accordance with its terms, shall remain in
\npossession of the Premises within the meaning of Title 11 U.S.C. Section 365
\n(as the same may be amended from time to time) and shall not take any action
\nto terminate, surren der, reject, disaffirm, rescind or avoid this Lease, or
\nabate or defer any Rental, or claim a constructive eviction, by reason of any
\nbankruptcy, insolvency, reorganization, liquidation, dissolu tion or other
\nproceeding of or affecting Landlord or any of its assigns or any action with
\nrespect to this Lease which may be taken by any trustee, receiver or
\nliquidator or by any court.<\/p>\n
SECTION 23.3. Notwithstanding any provision herein to the contrary,
\nif there is a complete and total failure of title to the Premises as a result
\nof a matter which is not listed on Exhibit B and is not otherwise a Permitted
\nException, and as a result thereof Tenant is completely dispossessed from all
\nor substantially all of the Premises, and such failure of title is covered by
\nthe respective mortgagees’ policies of title insurance held by the Secured
\nLenders holding liens on the Premises such that those Secured Lenders are
\nentitled, on account of such failure of title, to receive full compensation
\nunder their respective title insurance policies for the full amount of the
\nindebtedness outstanding under their respective Secured Loans (or, if Secured
\nLenders are entitled to payment under their title insurance policies of less
\nthan the full amount of such indebtedness on account of such title failure,
\nbut Tenant tenders to such Secured Lenders an amount in cash equal to the
\nfull amount of the shortfall (the principal component of such shortfall being
\nsubject to the limitation set out in SECTION 9.1(D) hereinabove) less the
\namount (if any) which Landlord is entitled to receive under its owners policy
\nof title insurance for and on account of such failure of title, with the
\nresult that such Secured Lenders will be repaid from Tenant and their title
\ninsurance policies and Landlord’s title insurance policy together the full
\namount of their outstanding indebtedness), then Tenant may, by written notice
\ngiven to Landlord and each of such Secured Lenders not later than 60 days
\nafter first learning of such failure of title is finally determined,
\nterminate this Lease and be relieved of its obligations to pay Rental and
\nother obligations hereunder that relate exclusively to the period after the
\neffective date of such termination, except for those which specifically
\nsurvive expiration or termination of the Lease.<\/p>\n
52<\/p>\n
If, as a result of a complete and total failure of title to Parcel
\nA, the Original Lease is duly and properly terminated in accordance with the
\nprovisions of Section 23.3 thereof, then Landlord or Tenant may in their sole
\ndiscretion terminate this Lease by written notice given by one of them to the
\nother within ten (10) days after notice was first given of the termination of
\nthe Original Lease, in which case Tenant shall make the payments to Secured
\nLenders (if any) required by the last sentence of this paragraph, and after
\nTenant makes all of such payments this Lease shall be of no further effect.
\nIf Tenant terminates this Lease and the Secured Lenders are entitled to
\npayment under their title insurance policies of less than the full amount of
\nthe indebtedness outstanding under their respective Secured Loans, then
\nTenant, on behalf of Landlord, shall pay to each Secured Lender an amount
\nequal to such Secured Lender’s share of such deficiency so that, when added
\nto the amount, if any, which Landlord is entitled to receive under its
\nowner’s policy of title insurance for and on account of such failure of
\ntitle, all of such Secured Loans shall be paid and satisfied in full (and
\nTenant’s payment of such deficiency shall be a condition precedent to the
\neffectiveness of Tenant’s termination of this Lease); provided, however, that
\nthe aggregate amount Tenant shall be obligated so to pay to all of the
\nSecured Lenders on account of all of the Secured Loans taken together shall
\nbe calculated in the same manner, and shall be subject to the same limitation
\nas to the principal indebtedness component thereof, as is applicable to the
\nShortfall.<\/p>\n
ARTICLE 24
\n PERMITTED USE; NO UNLAWFUL OCCUPANCY;
\n OPERATION OF THE PREMISES<\/p>\n
SECTION 24.1. Tenant shall not use the Premises in a manner, or for
\na use or purpose, not permitted by the provisions of this Lease.<\/p>\n
SECTION 24.2. Tenant shall not use or occupy the Premises or any
\npart thereof, or permit or suffer the Premises or any part thereof to be used
\nor occupied, for any unlawful business, use or purpose, or in an unlawful
\nmanner or such manner as to constitute in law or in equity a nuisance of any
\nkind (public or private), or for any dangerous or noxious trade or business,
\nor for any purpose or in any way in violation of (a) any certificate of
\noccupancy for the Premises in effect from time to time during the Term or any
\nRenewal Term, (b) any Requirement, (c) the CC&R’s relating to the Premises,
\nor (d) the provisions of this Lease, or which may make void or voidable any
\ninsurance then in force on the Premises (or any portion thereof). Tenant
\nshall take, immediately upon the discovery of any unpermitted use, all
\nreasonable necessary steps, legal and equitable, to compel the discontinuance
\nof such unpermitted use and Tenant shall exercise all of its rights and
\nremedies against any Subtenants responsible for such use.<\/p>\n
SECTION 24.3.<\/p>\n
(a) Tenant may use and occupy the Premises for the
\nprocessing, warehousing, and distribution of inventory, for administrative
\nand general offices, and (subject to the provisions of SECTION 24.2) for any
\nother lawful uses.<\/p>\n
53<\/p>\n
(b) If any licenses, permits or authorizations of any
\nGovernmental Authorities, other than those required or necessary to obtain
\nFinal Inspection (which licenses, approvals and authorizations necessary to
\nobtain Final Inspection are the responsibility of Landlord, at Landlord’s
\nsole cost and expense), shall be required for the proper and lawful conduct
\nin the Premises or any part thereof of the business or activities of Tenant
\n(or any Person claiming by, through or under Tenant), then Tenant, at its
\nsole cost and expense, shall duly procure and thereafter maintain such
\nlicenses, permits and authorizations in effect, and shall submit the same to
\nLandlord for inspection. Tenant shall at all times comply with the terms and
\nconditions of each such license, permit and authorization.<\/p>\n
SECTION 24.4. Notwithstanding anything herein to the contrary,
\nnothing herein shall be construed as an obligation for Tenant to operate its
\nbusiness in the Premises. Tenant shall have the right to remove Tenant’s
\nProperty and cease operations on or within the Premises at Tenant’s sole
\ndiscretion; however, the right to cease to operate its business on or within
\nthe Premises shall not diminish or affect in any way any of Tenant’s
\nobligations hereunder (including, without limitation, Tenant’s obligations to
\npay all Rental and other amounts as they come due hereunder and to perform
\nall covenants and obligations hereunder).<\/p>\n
ARTICLE 25
\n EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,
\n REMEDIES, ETC.<\/p>\n
SECTION 25.1. The occurrence of any one or more of the following
\nevents shall be an “EVENT OF DEFAULT” hereunder:<\/p>\n
(a) if Tenant shall fail to pay any installment of any
\nFixed Rent or Impositions, or any part thereof, when the same shall become
\ndue and payable, and such failure shall continue for a period of five days;
\nprovided, that twice in any period of twelve consecutive months Tenant shall
\nhave ten days after written notice from Landlord to Tenant to cure such
\nDefault, except that the preceding provisions of this proviso (which provide
\nfor notice and ten days’ grace period under certain circumstances) shall not
\napply to any failure of Tenant to pay, before the same becomes past- due or
\nany penalty attaches or accrues on account of nonpayment or late payment, any
\nImposition which is a tax, assessment or other amount payable to a
\nGovernmental Authority, and provided further, that Tenant’s late payment of a
\nparticular installment of any Imposition which is a tax, assessment or other
\namount payable to a Governmental Authority will not be deemed to constitute
\nan Event of Default (although it will be deemed to constitute a Default) if
\nTenant paid such installment in full (together with any and all interest,
\npenalties and other amounts payable with respect thereto) within five (5)
\ndays after Tenant first received a copy of the tax bill relating thereto or
\nother written notice of the amount of and due date for such installment of
\nTaxes;<\/p>\n
(b) if Tenant shall fail to make any payment of any Rental
\n(other than Fixed Rent or Impositions) required to be paid by Tenant
\nhereunder when the same shall become due and <\/p>\n
54<\/p>\n
payable, and such failure shall continue for a period of ten days after
\nwritten notice from Landlord to Tenant to cure such Default;<\/p>\n
(c) if Tenant shall fail to deliver to Landlord a
\ncertificate or other evidence reasonably satisfactory to Landlord of the
\nexistence of any new or renewal insurance policy required under this Lease on
\nor prior to the date the same is required to be delivered to Landlord, and
\nsuch failure shall continue for seven days after notice from Landlord (but
\nonly two Business Days after notice if Landlord’s notice is given ten or
\nfewer days prior to the expiration of the policy in question);<\/p>\n
(d) if Tenant shall fail to observe or perform any of the
\nterms, conditions, covenants or agreements of this Lease which is not
\nspecifically the subject of any of the preceding CLAUSES (a)-(c), inclusive,
\nof this SECTION 25.1, and such failure continues for a period of thirty days
\nafter notice thereof by Landlord to Tenant specifying such failure (unless
\nsuch failure requires work to be performed, acts to be done, or conditions to
\nbe removed which cannot, either by their nature or by reason of Unavoidable
\nDelays, reasonably be performed, done or removed, as the case may be, within
\nsuch 30-day period, in which case no Event of Default shall be deemed to
\nexist as long as Tenant shall have commenced curing the same promptly after
\nthe first notice from Landlord and shall thereafter at all times prosecute
\nthe same to completion with reasonable diligence, subject only to Unavoidable
\nDelays);<\/p>\n
(e) if Tenant shall make an assignment for the benefit of
\ncreditors;<\/p>\n
(f) if Tenant voluntarily shall file a case or petition
\nunder Title 11 of the United States Code or any other bankruptcy, insolvency,
\nreorganization or similar law, or if any such case or petition is filed
\nagainst Tenant and an order for relief is entered, or if Tenant shall file
\nany petition or answer seeking, consenting to or acquiescing in any
\nreorganization, arrangement, composition, readjustment, liquidation,
\ndissolution or similar relief under present or any future federal bankruptcy
\ncode or any other present or future applicable federal, state or other
\nstatute or law, or shall admit in writing that it is bankrupt or insolvent,
\nor shall seek or consent to or acquiesce in or suffer the appointment of any
\ntrustee, receiver, custodian, assignee, sequestrator, liquidator or other
\nsimilar official of Tenant or of all or any substantial part of its
\nproperties or of the Premises or any interest therein of Tenant, or if Tenant
\nshall take any action in furtherance of any action described in SECTION
\n25.1(e), this SECTION 25.1(f), or SECTION 25.1(g) hereof;<\/p>\n
(g) if within ninety days after the commencement of any
\nproceeding against Tenant seeking any reorganization, arrangement,
\ncomposition, readjustment, liquidation, dissolution or similar relief under
\nthe present or any future federal bankruptcy code or any other present or
\nfuture applicable federal, state or other statute or law, such proceeding
\nshall not have been dis missed, discontinued or vacated or if, within ninety
\ndays after the appointment, without the consent or acquiescence of Tenant, of
\nany trustee, receiver, custodian, assignee, sequestrator, liquidator or other
\nsimilar official of Tenant of all or any substantial part of its properties
\nor of the Premises or any interest therein of Tenant, such appointment shall
\nnot have been vacated or stayed on appeal or <\/p>\n
55<\/p>\n
otherwise, or if, within ninety days after the expiration of any such stay,
\nsuch appointment shall not have been vacated;<\/p>\n
(h) if this Lease or all or any part of the estate or
\ninterest of Tenant hereunder or created hereby shall be assigned, subleased,
\ntransferred, mortgaged, encumbered or otherwise disposed of without
\ncompliance with the provisions of this Lease applicable thereto, and such
\ntransaction shall not be made to comply, or voided AB INITIO, within thirty
\ndays after notice thereof from Landlord to Tenant;<\/p>\n
(i) if a levy under execution or attachment shall be made
\nagainst Tenant’s interest or estate in the Premises or any part thereof and
\nsuch execution or attachment shall not be vacated or removed by court order,
\nbonding or otherwise within a period of sixty days; or<\/p>\n
(j) if an Event of Default occurs under the Original Lease
\n(and, if the definition of such Event of Default expressly requires that
\nnotice thereof be given or that a specific cure period therefor is provided,
\nthen such notice shall have been given and such cure period shall have
\nelapsed).<\/p>\n
SECTION 25.2. If an Event of Default shall occur, until such Event
\nof Default shall have been completely cured Landlord may, in its sole
\ndiscretion, exercise any or all rights and remedies available to Landlord
\nhereunder or under applicable law (including, without limitation, proceeding
\nby appropriate judicial proceedings, either at law or in equity, to mandate,
\nenjoin or otherwise enforce the performance or observance by Tenant of the
\napplicable provisions of this Lease, terminating this Lease and recovering
\ndamages for Tenant’s breach hereof [including but not limited to any prepayment
\npenalty incurred by Landlord under a Secured Loan as a result of the
\ntermination of this Lease, and brokerage commissions]), simultaneously or in
\nsuch order as Landlord, in its discretion, may determine.<\/p>\n
SECTION 25.3.<\/p>\n
(a) If any Event of Default shall occur and Landlord, at
\nany time thereafter during the continuance of such Event of Default, at its
\noption, gives written notice to Tenant stating that this Lease and the Term
\nor any Renewal Terms shall expire and terminate on the date specified in such
\nnotice, which date shall be not less than ten days after the giving of such
\nnotice, then this Lease, the Term, any Renewal Terms, and all rights of
\nTenant under this Lease (including, without limitation, all rights relating
\nto any and all Options) shall expire and terminate on the date specified in
\nsuch notice as if such date were the date herein definitely fixed for the
\nexpiration of the Term or any Renewal Terms unless such Event of Default
\nshall be sooner cured. Upon any termination of this Lease pursuant to this
\nSECTION 25.3, Tenant immediately shall quit and surrender the Premises, but
\nTenant shall remain liable for damages as hereinafter provided. Anything
\ncontained herein to the contrary notwithstanding, if such termination shall
\nbe stayed or enjoined by order of any court having jurisdiction over any
\nproceeding described in either of SECTIONS 25.1(f) or 25.1(g) hereof, or by
\nfederal or state statute, then, following the expiration or vacation of any
\nsuch stay or injunc tion, or if the trustee appointed in any such proceeding,
\nTenant, or Tenant as debtor-in-possession shall fail <\/p>\n
56<\/p>\n
to assume Tenant’s obligations under this Lease within the period prescribed
\ntherefor by law or within sixty days after entry of the order for relief or
\nas may be allowed by the court, or if said trustee, Tenant or Tenant as
\ndebtor-in-possession shall fail to provide adequate protection of Landlord’s
\nright, title and interest in and to the Premises or adequate assurance of the
\ncomplete and continuous future performance of Tenant’s obligations under this
\nLease as provided in SECTION 25.16 hereof, Landlord shall have the right, at
\nits election, to terminate this Lease on five days’ notice to Tenant, Tenant
\nas debtor-in-possession, or said trustee, and upon the expiration of said
\nfive-day period this Lease shall cease and expire as aforesaid and Tenant,
\nTenant as debtor-in-possession, and said trustee shall immediately quit and
\nsurrender the Premises as aforesaid.<\/p>\n
(b) If an Event of Default shall occur and all applicable
\ncure periods have expired, Landlord, without notice, may (unless such Event
\nof Default shall have been completely cured) dispossess Tenant by summary
\nproceedings or by any suitable action or proceeding at law, whether or not
\nthe Lease has terminated.<\/p>\n
SECTION 25.4. If this Lease shall be terminated as provided in
\nSECTION 25.3(a) or Tenant shall be dispossessed as provided in SECTION
\n25.3(b), then:<\/p>\n
(a) Landlord or Landlord’s agents or servants may
\nimmediately or at any time thereafter re-enter the Premises and remove
\ntherefrom Tenant, its agents, employees, servants, licensees, and any
\nsubtenants and other persons holding or claiming by, through or under Tenant,
\nand all or any of its or their property, without being liable to indictment,
\nprosecution or damages therefor, and repossess and enjoy the Premises,
\ntogether with all additions, alterations and improvements thereto;<\/p>\n
(b) All of the right, title, estate and interest of Tenant
\nin and to (i) the Premises, all Buildings (including, without limitation, all
\nEquipment), all changes, additions and alterations therein, and all renewals
\nand replacements thereof, (ii) all rents, issues and profits of the Premises,
\nor any part thereof, whether then accrued or to accrue, (iii) all insurance
\npolicies and all insurance monies paid or payable thereunder, and (iv)
\nsubject to SECTION 25.17, the entire undisbursed balance of any funds
\n(including the interest, if any, accrued thereon) then held by the Landlord,
\nshall automatically pass to, vest in and belong to Landlord, without further
\naction on the part of either party, free of any claim thereto by Tenant (and
\nLandlord will not thereby be deemed to have assumed, or otherwise be or
\nbecome subject to, any of Tenant’s obligations or liabilities thereunder or
\nwith respect thereto), subject, however, to the rights, if any, of any
\nSecured Lenders;<\/p>\n
(c) Tenant shall immediately pay to Landlord all Rental
\npayable by Tenant under this Lease to the date upon which this Lease and the
\nTerm or any exercised Renewal Term shall have expired and come to an end or
\nto the date of re-entry upon the Premises by Landlord, as the case may be;<\/p>\n
(d) Landlord may repair and alter the Premises in such
\nmanner as Landlord may deem necessary or advisable without relieving Tenant
\nof any liability under this Lease or otherwise <\/p>\n
57<\/p>\n
affecting any such liability, and let or relet the Premises or any parts
\nthereof for the whole or any part of the remainder of the Term or for a
\nlonger period, in Landlord’s name or as agent of Tenant, and out of any rent
\nand other sums collected or received as a result of such reletting Landlord
\nshall: (i) first, pay to itself the reasonable cost and expense of
\nterminating this Lease, re-entering, retaking, repossessing, completing
\nconstruction of and repairing and altering the Premises, or any part thereof,
\nand the reasonable cost and expense of removing all persons and property
\ntherefrom, including in such costs reasonable brokerage commissions, legal
\nexpenses and attorneys’ fees and disbursements; (ii) second, pay to itself
\nthe reasonable cost and expense sustained in securing any new tenants and
\nother occupants, including in such costs reasonable brokerage commissions,
\nlegal expenses and attorneys’ fees and disbursements and other expenses of
\npreparing the Premises for reletting, and, if Landlord shall maintain and
\noperate the Premises, the cost and expense of operating and maintaining the
\nPremises; and (iii) third, pay to itself any balance remaining on account of
\nthe liability of Tenant to Landlord. Landlord in no way shall be responsible
\nor liable for any failure to relet the Premises or any part thereof, or for
\nany free rent or other concessions granted to any tenants in connection with
\nany such reletting, or for any failure to collect any rent due on any such
\nreletting, and no such failure to relet or to collect rent, or concessions
\ngranted, shall operate to relieve Tenant of any liability under this Lease or
\nto otherwise affect any such liability; and in no event shall Tenant be
\nentitled to receive any excess of such annual rents over the sums payable by
\nTenant to Landlord hereunder, provided, however, Landlord shall use
\nreasonable efforts to mitigate its damages for any Tenant default under the
\nLease;<\/p>\n
(e) Tenant shall be liable for and shall pay to Landlord,
\nas damages, any deficiency (“DEFICIENCY”) between (i) the Rental (including,
\nwithout limitation, Fixed Rent, Impositions, and all other amounts comprising
\nRental hereunder) reserved in this Lease for the period from the time of the
\ntermination hereof or dispossession of Tenant hereunder through the date on
\nwhich the Term (or any exercised Renewal Term) would have ended had no such
\ntermination or dispossession occurred and (ii) the net amount, if any, of
\nrents collected under any reletting effected pursuant to the provisions of
\nSECTION 25.4(d) for any part of such period (which net amount shall be
\ndetermined after deducting from the rents collected under any such reletting
\nall of the payments to Landlord described in SECTION 25.4(d) hereof); any
\nsuch Deficiency shall be paid in installments by Tenant on the respective
\ndays specified in this Lease for payment of installments or other payments of
\nRental, and Landlord shall be entitled to recover from Tenant each Deficiency
\ninstall ment as the same shall arise, and no suit to collect the amount of
\nthe Deficiency for any installment period shall prejudice Landlord’s right to
\ncollect the Deficiency for any subsequent installment period by a similar
\nproceeding; and<\/p>\n
(f) Whether or not Landlord shall have collected any
\nDeficiency installments as aforesaid, Landlord shall be entitled to recover
\nfrom Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
\nfurther Deficiencies, as and for liquidated and agreed final damages (it
\nbeing agreed that it would be impracticable or extremely difficult to fix the
\nactual damages), a sum equal to the amount by which the Rental reserved in
\nthis Lease for the period following termination or dispossession exceeds the
\nthen fair market rental value of the Premises for the same period, both
\ndiscounted to present worth at the rate per annum equal to the yield on then
\ncurrent Five-Year U.S. <\/p>\n
58<\/p>\n
Treasury Index, less the aggregate amount of Deficiencies theretofore
\ncollected by Landlord pursuant to the provisions of SECTION 25.4(C) for the
\nsame period (if any). In no event is Landlord entitled to accelerated
\nnondiscounted rent.<\/p>\n
SECTION 25.5. No taking of possession of, or reletting of, the
\nPremises or any part thereof pursuant to SECTIONS 25.3(b) or 25.4, or any
\nother provision hereof, or as permitted by applicable law, shall relieve
\nTenant of its liabilities and obligations hereunder, all of which shall
\nsurvive such repossession or reletting except as otherwise specifically and
\nexpressly provided herein.<\/p>\n
SECTION 25.6. To the extent not prohibited by law, Tenant hereby
\nwaives and releases all rights now or hereafter conferred by statute or
\notherwise which would have the effect of limiting or modifying any of the
\nprovisions of, or limiting or restricting Landlord’s rights or remedies
\nunder, this ARTICLE 25. Tenant shall execute, acknowledge and deliver any
\ninstruments which Landlord may reasonably request, whether before or after
\nthe occurrence of an Event of Default, evidencing such waiver or release.<\/p>\n
SECTION 25.7. Landlord hereby waives any contractual, statutory or
\nother landlord’s lien on Tenant’s Property, furniture, fixtures, supplies,
\nequipment and inventory and any Capital Improvement owned now or hereafter by
\nTenant or its assignees, Subtenants or licensees at and with respect to the
\nPremises; provided, however, that the foregoing clause of this Section shall
\nnot be deemed to waive, release or diminish in any way any of the rights,
\nremedies or authorities granted to Landlord by the provisions of this Lease.<\/p>\n
SECTION 25.8. Suit or suits for the recovery of damages allowed
\nhereunder or any Deficiencies or other sums payable by Tenant to Landlord
\npursuant to this ARTICLE 25 may be brought by Landlord from time to time at
\nLandlord’s election, and nothing herein contained shall be deemed to require
\nLandlord to await the date whereon this Lease or the Term or any Renewal
\nTerms would have expired had there been no Event of Default by Tenant and
\ntermination.<\/p>\n
SECTION 25.9. Nothing contained in this ARTICLE 25 shall limit or
\nprejudice the right of Landlord to prove and obtain as liquidated damages in
\nany bankruptcy, insolvency, receivership, reorganization or dissolution
\nproceeding an amount equal to the maximum allowed by any statute or rule of
\nlaw governing such proceeding and in effect at the time when such damages are
\nto be proved, whether or not such amount shall be greater than, equal to or
\nless than the amount of the damages referred to in any of the preceding
\nSections of this ARTICLE 25.<\/p>\n
SECTION 25.10. No receipt of moneys by Landlord from Tenant after
\nthe termination of this Lease or after the giving of any notice of the
\ntermination of this Lease shall reinstate, continue or extend the Term or any
\nRenewal Terms or affect any notice theretofore given to Tenant, or operate as
\na waiver of the right of Landlord to enforce the payment of Rental payable by
\nTenant hereunder or thereafter falling due, or operate as a waiver of the
\nright of Landlord to recover possession of the Premises by proper remedy,
\nexcept as herein otherwise expressly provided, it being agreed that after the
\ngiving of notice to terminate this Lease or the commencement of any suit or
\nsummary <\/p>\n
59<\/p>\n
proceedings, or after a final order or judgment for the possession of the
\nPremises, Landlord may demand, receive and collect any moneys due or
\nthereafter falling due without in any manner affecting such notice,
\nproceeding, order, suit or judgment, all such moneys collected being deemed
\npayments on account of the use and occupation of the Premises or, at the
\nelection of Landlord, on account of Tenant’s liability hereunder.<\/p>\n
SECTION 25.11. Except as otherwise expressly provided herein or as
\nprohibited by applicable law, Tenant hereby expressly waives the service or
\ngiving of any notice of intention to re-enter provided for in any statute, or
\nof the institution of legal proceedings to that end, and Tenant, for and on
\nbehalf of itself and all persons claiming through or under Tenant, also
\nwaives any and all rights provided by any law or statute now in force or
\nhereafter enacted or otherwise, of redemption or re-entry or repossession or
\nto restore the operation of this Lease in case Tenant shall be dispossessed
\nby a judgment or by warrant of any court or judge or in case of re-entry or
\nrepossession by Landlord or in case of any expiration or termination of this
\nLease. The terms “enter”, “re-enter”, “entry” or “re-entry” as used in this
\nLease are not restricted to their technical legal meaning. Nothing in this
\nSection shall affect Tenant’s rights, including rights to notice, which are
\nexpressly provided herein.<\/p>\n
SECTION 25.12. No failure by Landlord to insist upon the strict
\nperformance by Tenant of any covenant, agreement, term or condition of this
\nLease or to exercise any right or remedy consequent upon a breach thereof,
\nand no payment or acceptance of full or partial Rental during the continuance
\nof any such breach, shall constitute a waiver of any such breach or of such
\ncovenant, agreement, term or condition. No covenant, agreement, term or
\ncondition of this Lease to be performed or complied with by Tenant, and no
\nbreach thereof, shall be waived, altered or modified except by the specific
\nprovisions of a written instrument executed by Landlord. No waiver by
\nLandlord of any breach shall affect or alter this Lease, but each and every
\ncovenant, agreement, term and condition of this Lease shall continue in full
\nforce and effect with respect to any other then-existing or subsequent breach
\nthereof.<\/p>\n
SECTION 25.13. In the event of any breach or threatened breach or
\nrepudiation by Tenant of this Lease or of any of the covenants, agreements,
\nterms or conditions contained in this Lease, Landlord shall be entitled to
\nenjoin such breach, threatened breach or repudiation and shall have the right
\nto invoke any and all rights and remedies allowed at law or in equity or by
\nstatute or otherwise as though re-entry, summary proceedings, and other
\nremedies were not provided for in this Lease.<\/p>\n
SECTION 25.14. Each right and remedy of Landlord provided for in
\nthis Lease shall be cumulative and shall be in addition to every other right
\nor remedy provided for in this Lease or now or hereafter existing at law or
\nin equity or by statute or otherwise, and the exercise or beginning of the
\nexercise by Landlord of any one or more of the rights or remedies provided
\nfor in this Lease or now or hereafter existing at law or in equity or by
\nstatute or otherwise shall not preclude the simultaneous or later exercise by
\nLandlord of any or all other rights or remedies provided for in this Lease or
\nnow or hereafter existing at law or in equity or by statute or otherwise.<\/p>\n
60<\/p>\n
SECTION 25.15. If after an Event of Default has occurred (and any
\napplicable cure periods have expired) then in addition to all other remedies
\nof Landlord hereunder (other than its rights to terminate this Lease and\/or
\ndispossess Tenant, as to which see the final sentence of this Section),
\nLandlord may, in its discretion, by notice to Tenant (which notice, referred
\nto herein as a “SECTION 25.15 NOTICE,” shall expressly state that Landlord is
\nexercising its rights under this SECTION 25.15), accelerate all obligations
\nof Tenant hereunder for Rental, in which case all amounts of Rental
\n(including, without limitation, Fixed Rent) which would have become due or
\npayable by Tenant to Landlord hereunder for any period or at any time through
\nthe end of the Term (including any Renewal Term, if exercised) shall
\nimmediately be due and payable in full (provided, however, that any such
\namounts so due and payable shall be discounted to present value at the rate
\nper annum equal to the yield, as in effect on the date of the Section 25.15
\nNotice, on U.S. Treasury debt instruments which mature in the month in which
\nthe Lease Term is scheduled to end). From and after the time (if any) when
\nLandlord has duly exercised its right to accelerate as provided in this
\nSection and has also actually received in cash the full amount (discounted to
\npresent value as provided in the preceding sentence) of all Rental which
\nwould have become due or payable hereunder through the end of the Term as
\nprovided in the preceding sentence (the “FULL TERM RENTAL PAYMENT RECEIPT
\nDATE”), Landlord shall not be entitled to terminate this Lease or to
\ndispossess Tenant until the end of the Term with respect to which Landlord
\nhad received such accelerated, commuted payment of Rental; but Landlord may,
\nat any time until the Full Term Rental Payment Receipt Date, rescind any
\nSection 25.15 Notice it may theretofore have given and thereafter exercise
\nits rights to terminate this Lease or dispossess Tenant hereunder.<\/p>\n
SECTION 25.16. If an order for relief is entered or if a stay of
\nproceeding or other acts becomes effective in favor of Tenant or Tenant’s
\ninterest in this Lease, in any proceeding which is commenced by or against
\nTenant, under the present or any future federal bankruptcy code or any other
\npresent or future applicable federal, state or other statute or law, Landlord
\nshall be entitled to invoke any and all rights and remedies available to it
\nunder such bankruptcy code, statute, law or this Lease, including, without
\nlimitation, such rights and remedies as may be necessary to adequately
\nprotect Landlord’s right, title and interest in and to the Premises or any
\npart thereof and adequately assure the complete and continuous future
\nperformance of Tenant’s obligations under this Lease.<\/p>\n
SECTION 25.17. If this Lease shall terminate as a result of an Event
\nof Default, and also (regardless of whether or not this Lease shall have
\nterminated) at any time after an Event of Default has occurred (and any
\napplicable cure period has expired), any funds of Tenant (including the
\ninterest, if any, accrued thereon) then held by Landlord may be applied by
\nLandlord to any sums then due and owing by Tenant to Landlord hereunder and
\nto any damages payable by Tenant (whether provided for herein or by law or in
\nequity) as a result of such termination or Event of Default.<\/p>\n
ARTICLE 26
\n NOTICES<\/p>\n
SECTION 26.1. All notices, demands, requests, consents, approvals or
\nother communications (each of which is referred to herein as a “NOTICE”) made
\nor required to be given pursuant to, under <\/p>\n
61<\/p>\n
or by virtue of this Lease must be in writing. Notices shall be delivered to
\nthe respective parties at the following respective addresses:<\/p>\n
If to Landlord: CTC Investments Limited
\n 9665 Wilshire Blvd., Suite 200
\n Beverly Hills, CA 90212
\n Attention: R. Christian B. Evensen
\n K. Robert Turner<\/p>\n
with a copy to: Mayer, Brown & Platt
\n 190 South LaSalle Street – Suite 3100
\n Chicago, Illinois 60603
\n Attention: Robert M. Berger
\n Jason Neumark<\/p>\n
If to Tenant: Sara Lee Corporation
\n 410 Commerce Boulevard
\n Carlstadt, New Jersey 07072
\n Attention: Mr. William M. Page<\/p>\n
with a copy to: Sara Lee Corporation
\n Law Department, Attn: Ms. Carole P. Sadler
\n 516 West 34th Street
\n New York, NY 10001<\/p>\n
If Landlord should so request of Tenant, Tenant shall also deliver a copy of
\nany Notice it gives to Landlord, to any Secured Lender that Landlord may
\ndesignate in such request, at such Secured Lender’s address as furnished to
\nTenant by Landlord. Any Notice shall be deemed given upon the first to occur
\nof (i) actual receipt by the party to whom it is being given, (ii) the date
\non which proper delivery of such Notice is refused by the party to whom it is
\nbeing given, (iii) the third Business Day after the date on which such Notice
\nwas deposited in the U.S. Mails, properly addressed, by first class certified
\nmail return receipt requested, with all proper postage prepaid, or (iv) the
\nfirst Business Day after being deposited with a recognized national overnight
\ncourier service for next-day delivery, properly addressed, with all charges
\nprepaid or otherwise charged to the sender. Notices may be given on behalf of
\nany party by such party’s attorneys at law. Any party may change its address
\nfor purposes of receipt of Notices hereunder by giving notice of such change
\nto the other party in accordance with this SECTION 26.1.<\/p>\n
SECTION 26.2. If Landlord shall designate the holder of any Secured
\nLoan as a Person to whom copies of all Notices from Tenant shall be sent,
\nsuch designation shall be irrevocable during the term of such Secured Loan,
\nand no Notice from Tenant shall be deemed to have been validly given unless
\nand until a copy thereof is also given to such holder. (Such Secured Lender
\nmay change <\/p>\n
62<\/p>\n
its address or may be replaced by a new holder of such Secured Loan by Notice
\ngiven to Landlord and Tenant.)<\/p>\n
ARTICLE 27
\n SIGNAGE<\/p>\n
SECTION 27.1. Tenant shall, at its sole cost and expense, deliver to
\nLandlord such signs, monuments or markers setting forth Tenant’s name and
\nlogo as it may wish to have installed on (a) the entrance doors of any
\nBuilding, (b) the exterior walls of any Building, and (c) in the parking
\nareas of any Building. Tenant shall submit to Landlord for its approval the
\nplans and specifications for such signs, monuments or markers (“SIGNAGE
\nPLAN”) as soon as practical hereafter but no later than December 15, 1998;
\nprovided, however, that if the Signage Plan is delivered after December 15,
\n1998, then (i) Tenant will pay to Landlord on demand all amounts, costs,
\nexpenses and liabilities of every kind that Landlord may pay or incur
\n(including, without limitation, construc tion costs and interest on any
\nconstruction loan) as a direct or indirect result of such late delivery of
\nthe Signage Plan, and (ii) all deadlines, performance dates and similar
\ntime-related obligations of Landlord under or concerning this Lease
\n(including, without limitation, the Required Delivery Date [defined in the
\nLeasehold Improvement Agreement]) shall be deferred and moved back by an equal
\nnumber of days or (if longer) the period of delay in the construction of the
\nInitial Building that was directly or indirectly caused or occasioned by such
\nlate delivery of the Signage Plan. Landlord shall be responsible for installing
\nany signs, monuments or markers delivered to it by Tenant in compliance with
\nthe Signage Plan, and Landlord shall obtain all necessary sign permits,
\napprovals or certificates required by any Governmental Authorities, but Tenant
\nshall pay all costs in excess of $2,500.00 which are paid or incurred in
\nconnection with such installation or obtaining of permits, approvals or
\ncertificates.<\/p>\n
SECTION 27.2. Tenant shall be responsible, at its sole cost and
\nexpense, for (a) maintaining in force all sign permits, if any, required by
\nany Governmental Authorities, and (b) all maintenance, repair and cleaning of
\nTenant’s and its Subtenants’ signs, and the provisions and conditions of
\nARTICLE 12 shall apply to each such sign. All such signs shall be deemed to
\nbe Tenant’s Property for the purposes of ARTICLES 11 and 13.<\/p>\n
SECTION 27.3. At any time during the Term or any Renewal Term,
\nTenant may, at its sole cost and expense, remove or cause the removal of any
\nsigns installed or directed or permitted to be installed by Tenant. At the
\nend of the Term or any Renewal Term, Tenant, at its sole cost and expense,
\nshall remove from the Premises all signs installed or directed or permitted
\nto be installed by Tenant or any Person acting, holding or claiming by,
\nthrough or under Tenant. Upon the removal of any such sign, Tenant shall, at
\nits sole cost and expense, (a) repair any damage caused by such sign or such
\nremoval, and (b) restore the elements of the Premises (including, without
\nlimitation, the Building) from which such signs are removed in accordance
\nwith the standards set out, and to the condition described, in SECTION 34.1.<\/p>\n
63<\/p>\n
SECTION 27.4. The provisions of SECTION 10.14 shall apply to all
\nsigns of Tenant (or any Person holding or claiming by, through or under
\nTenant) that in any way, directly or indirectly, advertise or inform that
\nspace at or within the Premises is or may be available, whether by
\nassignment, subletting or otherwise. The provisions of SECTION 27.2 and 27.3
\nshall also apply (inter alia) to such signs, but in the event of an
\ninconsistency between the provisions of SECTION 10.14 and the provisions of
\nSECTIONS 27.2 and 27.3 as applied to such advertising signs, the provisions
\nof SECTION 10.14 shall govern and control.<\/p>\n
SECTION 27.5. Tenant may, at its sole cost and expense, erect and
\nmaintain one dignified sign (i) at the edge of the South Access Roadway where
\nsuch roadway ends at the south boundary of Parcel D and (ii) at the north
\nedge of the Land. Such signs shall at all times conform to the requirements
\nof all applicable laws and ordinances and the CC&Rs, as well as to all
\nprovisions of this Lease applicable to signs. To the extent (if any)
\nnecessary from time to time under applicable zoning ordinances for the
\nmaintenance of such signs, Landlord agrees that if and to the extent it will
\nnot thereby become obligated to pay, incur, undertake or sustain any payment,
\nliability, obligation or risk of any kind, Landlord will do one of the
\nfollowing (it shall be within Landlord’s sole and absolute discretion to
\ndetermine which of the following Landlord will do at any particular time,
\nLandlord having the right at any time and from time to time to make a
\ndifferent election): (i) cause the fee title to the South Access Roadway and
\nParcel D to be held by the same Person who holds the fee title to the Land;
\n(ii) cause the South Access Roadway to be leased to Tenant pursuant to a
\nlease which grants to Tenant no rights of any kind whatsoever thereto, and
\nreserves to Landlord or its designee all rights of every kind whatsoever
\nthereto, except only such bare leasehold estate as may be required to support
\nTenant’s right to maintain thereupon the access sign described in this
\nSection; or (iii) take any other action, or do any other thing, which (at no
\ncost, expense, liability or risk to Landlord) would be sufficient to allow
\nTenant to maintain the sign described in this Section. Tenant acknowledges
\nthat the tenant of Parcel A also has a right to maintain a sign on the South
\nAccess Roadway.<\/p>\n
ARTICLE 28
\n [INTENTIONALLY OMITTED.]<\/p>\n
ARTICLE 29
\n AMENDMENTS TO CC&R’S<\/p>\n
Notwithstanding anything to the contrary provided herein, (a)
\nLandlord shall not enter into or consent to any modification or amendment of
\nthe CC&R’s which materially adversely affects Tenant without obtaining the
\nwritten consent of Tenant (which consent shall not be unreasonably withheld
\nor delayed by Tenant), and (b) Landlord shall not terminate or agree or
\nconsent to a termination of the CC&R’s without the written consent of Tenant
\n(which consent shall not be unreasonably withheld or delayed by Tenant).
\nLandlord agrees to consent to, join in and execute (if required) any
\neasement, modification or amendment to the CC&R’s, licenses and any other
\nagreement reasonably requested by Tenant, Wilma’s successor in interest under
\nthe Initial <\/p>\n
64<\/p>\n
Declaration as amended, the Association or any Governmental Authority which
\nis necessary for Tenant’s use or enjoyment of the Premises, but only if (i)
\nthe same does not impose any costs, obligations, liabilities or risks on
\nLandlord (or Tenant delivers to Landlord the binding and enforce able written
\nagreement of Tenant, satisfactory in all respects to Landlord, by which
\nTenant agrees to pay all such costs and to defend, indemnify and hold
\nLandlord harmless from and against all such costs, obligations, liabilities
\nand risks, it being expressly agreed hereby that any such agreement of
\nTenant, and all of Tenant’s obligations and liabilities thereunder, shall
\nalso automatically constitute obligations of Tenant under this Lease, the
\nbreach or default with respect to which will also constitute a Default
\nhereunder, and which constitute “Obligations” guarantied by Guarantor under
\nthe Guaranty), and (ii) the same does not adversely affect any of Landlord’s
\nother properties or the security or interests of any Secured Lender in, to or
\nconcerning the Premises, the Parcels or this Lease. Each party will provide
\nto the other party, promptly after its receipt thereof, a copy of any notice
\nsuch party receives concerning the CC&Rs.<\/p>\n
ARTICLE 30
\n CERTAIN PROVISIONS RELATING TO SECURED LOANS<\/p>\n
SECTION 30.1. If any act or omission of Landlord would give Tenant
\nthe right, immediately or after lapse of a period of time, to cancel or
\nterminate this Lease, or to claim a partial or total eviction, or to have any
\nabatement or reduction of or offset against any Rental hereunder, Tenant
\nshall not exercise such right until thirty (30) days after it has given
\nwritten notice of such act or omission to Landlord and to each Secured
\nLender; and any purported exercise by Tenant of such right before 30 days
\nhave elapsed from its giving of such notice shall be void. The provisions of
\nthis SECTION 30.1 are not intended to, and shall not be construed to, limit,
\nqualify or modify the provisions of ARTICLE 23 or any other provision of this
\nLease.<\/p>\n
SECTION 30.2.<\/p>\n
(a) Landlord shall cause each Secured Lender who holds a
\nlien or security interest in the Premises to execute, acknowledge and deliver
\nto Tenant, not later than thirty (30) days after Landlord acquires financing
\nfrom any such Secured Lender, a subordination, nondisturbance and attornment
\nagreement in a form reasonably acceptable to Tenant (herein called a
\n“NONDISTURBANCE AGREEMENT”). Tenant acknowledges and agrees that a
\nNondisturbance Agreement substantially similar to the Nondisturbance
\nAgreement executed by the tenant under the Parcel A Lease will be acceptable
\nto Tenant. Until such time (if any) as said Nondisturbance Agreement is
\ndelivered to Tenant, such Secured Lender shall not be entitled to any of the
\nrights, benefits or privileges accorded to Secured Lenders under the
\nprovisions of this Lease.<\/p>\n
(b) Not later than ten days after Landlord tenders to
\nTenant a form thereof signed by a Secured Lender or prospective Secured
\nLender, Tenant shall execute, acknowledge and deliver a Nondisturbance
\nAgreement to any Secured Lender or any prospective Secured Lender designated
\nby Landlord from time to time. If Tenant fails to deliver such Nondisturbance
\nAgreement to any <\/p>\n
65<\/p>\n
Secured Lender or prospective Secured Lender within such ten-day period,
\nLandlord may execute and deliver such Nondisturbance Agreement in Tenant’s
\nname, place and stead, and Tenant hereby grants to Landlord an irrevocable
\npower of attorney (which power Tenant acknowledges is coupled with an
\ninterest), in Tenant’s name, place and stead to execute, acknowledge and
\ndeliver any such Nondisturbance Agreement.<\/p>\n
SECTION 30.3. Within ten Business Days after being requested to do
\nso by Landlord, Tenant shall execute and deliver an Environmental Indemnity
\nin a form substantially identical to the form of EXHIBIT L attached hereto to
\nany Secured Lender or any prospective Secured Lender.<\/p>\n
SECTION 30.4. Upon reasonable request from Landlord, Tenant shall
\ndeliver to Landlord or any Secured Lender or prospective Secured Lender a
\nwritten letter of opinion from Tenant’s legal counsel satisfactory to
\nLandlord or such Secured Lender (as the case may be), as to Tenant’s
\nauthority to execute this Lease, Tenant’s due execution of this Lease, the
\nenforceability of this Lease and its nonconflict with laws and contracts, and
\nTenant’s good standing in the state of its incorporation and the State of
\nFlorida.<\/p>\n
SECTION 30.5 Upon request from Landlord, Tenant shall deliver to
\nLandlord, any Secured Lender or prospective Secured Lender, and any purchaser
\nor prospective purchaser of all or part of Landlord’s interest in the
\nPremises or this Lease, an estoppel certificate as to the existence and
\nvalidity of this Lease (as it may then have been amended, modified or
\nrestated), the nonexistence of any defaults hereunder, the nonpayment of any
\nRental in advance, the performance by Landlord of its obligations hereunder,
\nand any other reasonable or customary matters.<\/p>\n
ARTICLE 31
\n ENVIRONMENTAL MATTERS<\/p>\n
SECTION 31.1 Tenant covenants that at all times after the
\nCommencement Date of the Original Lease: (a) the Premises was, and shall be,
\nmaintained free of contamination from any Hazardous Substances (hereinafter
\ndefined) except any which were present on the Premises as of the Commencement
\nDate of the Original Lease through no fault of Tenant or any Person acting or
\nclaiming by, through or under Tenant; (b) the Premises were not, and shall
\nnot be, used for the manufacture, storage, generation or disposal of any
\nHazardous Substances; (c) Tenant was not and shall not be, and did not and
\nshall not permit any assignee or Subtenant to be, involved in operations at
\nor near the Premises that could lead to the imposition on Landlord of
\nliability, or the creation of a lien on the Premises or any assets of
\nLandlord, under any Requirements relating to Hazardous Substances; and (d)
\nTenant did not and shall not cause or permit to exist or occur any deposit,
\ndisposal, discharge, spillage, loss, emission, escape, migration, seepage or
\nfiltration of oil, petroleum, chemical liquids or solids, liquid or gaseous
\nproducts, or any Hazardous Substances upon, under, above, from, or within the
\nPremises; provided, however, that Tenant may, at Tenant’s sole risk, use upon
\nthe Premises any Hazardous Substances or hazardous materials which are
\nnecessary for Tenant to carry on, in the ordinary course of its business, its
\npresently intended warehouse, distribution or <\/p>\n
66<\/p>\n
office uses on the Premises so long as Tenant complies with all applicable
\nEnvironmental Laws and with then-generally-accepted good and prudent business
\npractices relating thereto. (Nothing in the proviso at the end of the
\npreceding sentence shall be deemed to diminish, restrict, limit or affect in
\nany way the breadth, generality or scope of Tenant’s indemnification or other
\nobligations or undertakings set out the remainder of this ARTICLE 31.)<\/p>\n
SECTION 31.2 Except for matters caused by Landlord’s own acts or by
\nthe acts of any Person acting or claiming by, through or under Landlord (for
\nall purposes of this Lease, the phrase “Persons acting or claiming by,
\nthrough or under Landlord”, and any similar phrase, does not include Tenant
\nor its assignees, Subtenants, licensees, or Persons acting, claiming or
\nholding by, through or under Tenant or its assignees, Subtenants or
\nlicensees), Tenant hereby agrees to defend, indemnify, and hold Landlord
\nharmless from and against any and all losses, liabilities (including, without
\nlimitation, strict liability), damages, injuries, expenses (including,
\nwithout limitation, attorneys’ fees and disbursements), costs of any
\nsettlement or judgment, and claims of any and every kind whatsoever paid,
\nincurred or suffered by, or asserted against, Landlord by any Governmental
\nAuthority or other Person for, with respect to, or as a direct or indirect
\nresult of, the presence on, within or under, or the escape, seepage, leakage,
\nspillage, discharge, emission, migration or release from, the Premises of any
\nHazardous Substance, which conditions either (i) were created or caused by
\nTenant or any Person acting by, through or under Tenant or (ii) did not exist
\non the Premises prior to the Commencement Date of the Original Lease
\n(including, without limitation, any losses, liabilities, including strict
\nliability, damages, injuries expenses, including attorneys’ fees and
\ndisbursements, costs of any settlement or judgment or claims asserted or
\narising under the Comprehensive Environmental Response, Compensation and
\nLiability Act, as amended, RCRA, as amended, or any federal, state or local
\nso-called “Superfund” or “Superlien” laws or any other statute, law,
\nordinance, code, rule, regulation, order or decree now or hereafter
\nregulating, governing, controlling, relating to, or imposing liability
\n[including, without limitation, strict liability] or standards of conduct for
\nor concerning any Hazardous Substance [collectively, “ENVIRONMENTAL LAWS”]
\nand including amounts necessary to pay costs of investigation and clean-up of
\nHazardous Substances and toxic substances on or affecting the Property).<\/p>\n
SECTION 31.3 For purposes hereof, “HAZARDOUS SUBSTANCES” shall mean
\nand include all elements, wastes, materials, substances or compounds which
\nare contained in the list of hazardous substances adopted by the United
\nStates Environmental Protection Agency (the “EPA”) or the Florida Department
\nof Environmental Protection (the “DEP”) or the list of toxic pollutants
\ndesignated by Congress or the EPA or the DEP or defined by any other Federal,
\nstate or local statute, law, ordinance, code, rule, regulation, order or
\ndecree regulating, relating to, governing or imposing liability or standards
\nof conduct concerning any hazardous, toxic or dangerous waste, substance or
\nmaterial as now or at any time hereafter in effect, including, without
\nlimitation, asbestos, PCBs, radioactive substances, methane, petroleum
\ndistillates, compounds and derivatives, petrochemicals, volatile hydrocarbons
\nand industrial solvents.<\/p>\n
SECTION 31.4 If either Tenant or Landlord receives any notice of (a)
\nthe happening of any event involving in any way the presence, spill, release,
\nleak, seepage, discharge of cleanup of any <\/p>\n
67<\/p>\n
Hazardous Substance on or from the Premises, or (b) any complaint, order,
\ncitation or notice with regard to air emissions, water discharges, or any
\nother environmental, health or safety matter affecting Landlord or the
\nPremises (an “ENVIRONMENTAL COMPLAINT”) from any Person (including without
\nlimitation the EPA or the DEP), then such party receiving the notice shall
\nimmediately notify the other party of said notice and shall promptly send
\nsuch other party a complete copy of any such notice that is in written form.<\/p>\n
SECTION 31.5 Unless caused by Landlord’s own acts or by the acts of
\nany Person acting or claiming by, through or under Landlord (for all purposes
\nof this Lease, the phrase “Persons acting or claiming by, through or under
\nLandlord”, and any similar phrase, does not include Tenant or any assignee,
\nSubtenant or licensee of or under Tenant or any other Person acting, claiming
\nor holding by, through or under Tenant or any assignee, Subtenant or licensee
\nof Tenant) and except for Hazardous Substances that were present on the
\nPremises on the Commencement Date of the Original Lease through no fault of
\nTenant or any Person acting or claiming by, through or under Tenant, Tenant
\nshall bear the sole and complete responsibility and expense to clean up,
\nremove, resolve or minimize the impact of, or otherwise deal with, any and
\nall such Hazardous Substances and Environmental Complaints following receipt
\nof any notice from any Person (including without limitation the EPA or the
\nDEP) asserting the existence of any Hazardous Substance, or an Environ mental
\nComplaint, pertaining to the Parcels or any part thereof which could result
\nin an order, judgment, complaint, decree, suit or other action against
\nLandlord or any Secured Lender or Tenant or Tenant’s representatives, agents
\nor Subtenants or which, in the sole opinion or Landlord, could impair the
\nvalue of Landlord’s interest in the Premises or the Parcels. With respect to
\nall matters described above, Tenant shall take all action necessary to obtain
\na closure letter or other final, favorable written disposition of the matter
\nfrom the applicable Governmental Authorities and shall deliver said letter or
\nother written disposition to Landlord. If Tenant fails to take any action
\nrequired herein, Landlord shall have the right (but not the obligation),
\nafter providing Tenant with notice and a reasonable opportunity to cure, to
\nenter onto the Premises or to take such other actions as it deems necessary
\nor advisable so to clean up, remove, resolve, minimize the impact of, or
\notherwise deal with any such Hazardous Substances or Environmental Complaint,
\nin which event all costs and expenses incurred by Landlord in the exercise of
\nany such rights shall be paid and reimbursed to Landlord by Tenant upon
\ndemand.<\/p>\n
SECTION 31.6<\/p>\n
(a) Promptly after its receipt of any report of or
\nconcerning the environmental condition of, or the presence or absence of
\nHazardous Substances at, upon or under, or the compli ance or noncompliance
\nwith any Environmental Laws of, the Parcels or any part thereof, Tenant will
\ndeliver a complete copy of such report to Landlord.<\/p>\n
(b) Each of Landlord and any Secured Lender shall have the
\nright from time to time, in its reasonable discretion, to cause to be
\nperformed an environmental audit and, if deemed necessary by Landlord, an
\nenvironmental risk assessment, concerning or relating to the Parcels (or any
\nportions thereof) and the hazardous waste management practices of and the
\nhazardous waste <\/p>\n
68<\/p>\n
disposal sites used by Tenant and any other users of the Premises; and Tenant
\ngrants to Landlord and each such Secured Lender and their respective agents,
\ncontractors and designees an irrevocable license to enter upon the Premises
\nat any reasonable time or times for purposes of performing the same. All
\ncosts and expenses incurred by Landlord in the exercise of such rights shall
\nbe payable by Landlord, except that Tenant shall pay the costs of (i) all
\nsuch audits and reports as are done either (A) when Landlord or any Secured
\nLender has any reasonable basis to believe that any Hazardous Substance may
\nbe present on, under, at or about the Parcels or (B) in satisfaction of a
\nrequirement of a Secured Lender or (C) not sooner than three years after the
\ndate of the most recent such audit and report done at Landlord’s request, as
\nwell as (ii) all audits and reports that disclose a violation not shown as
\nexisting in a written environmental consultant’s report previously obtained
\nby Landlord (except for violations which Tenant establishes existed before
\nthe Commencement Date and were not disclosed in any environmental report
\nreceived by Tenant prior to the execution of this Lease).<\/p>\n
SECTION 31.7 Landlord represents to Tenant that as of the
\nCommencement Date of the Original Lease Landlord had no actual, conscious
\nknowledge of any violation by the Premises of any Environmental Law except as
\nmay have been disclosed on any environmental consultants’ reports delivered
\nto Tenant before the Commencement Date of the Original Lease. Tenant
\nacknowledges that, except as set out in the preceding sentence, Landlord has
\nmade no representation of any kind regarding Hazardous Materials or
\nEnvironmental Laws and that Tenant is relying, and is willing to rely, solely
\nupon the environmental reports delivered to Tenant before the execution of
\nthis Lease.<\/p>\n
SECTION 31.8 Unless caused by Tenant’s own acts or by the acts of
\nany Person acting, holding or claiming by, through or under Tenant, Landlord
\nhereby agrees to defend, indemnify and hold Tenant harmless from and against
\nany and all losses, liabilities (including, without limitation, strict
\nliability), damages, injuries, expenses (including, without limitation,
\nattorneys’ fees and disbursements), costs of any settlement or judgment, and
\nclaims of any and every kind whatsoever paid, incurred or suffered by, or
\nasserted against, Tenant by any Governmental Authority or other Person for,
\nwith respect to, or as a direct or indirect result of, the presence on or
\nunder, or the escape, seepage, leakage, spillage, discharge, emission,
\nmigration or release from, the Premises of any Hazardous Substance which
\nresulted solely from conditions existing on the Parcels on or prior to the
\nCommencement Date of the Original Lease (except for such, if any, as were
\ndisclosed in any environmental report delivered to Tenant before the date of
\nthe Original Lease), except to the extent the same was exaggerated,
\nexacerbated, aggravated or otherwise affected by any act of Tenant or any
\nPerson acting, holding or claiming by, through or under Tenant at any time or
\nby any other Person after the Commencement Date of the Original Lease
\n(including, without limitation, any losses, liabilities, including strict
\nliability, damages, injuries expenses, including attorneys’ fees and
\ndisbursements, costs of any settlement or judgment or claims asserted or
\narising under any Environmental Laws).<\/p>\n
SECTION 31.9 Unless caused by Tenant’s own acts or by the acts of
\nany Person acting, holding or claiming by, through or under Tenant, Landlord
\nshall bear the sole and complete responsibility and expense to clean up,
\nremove, resolve or minimize the impact of, or otherwise deal with, any
\nEnvironmental Complaint with respect solely to environmental conditions that
\nexisted on <\/p>\n
69<\/p>\n
the Premises on or prior to the Commencement Date of the Original Lease
\n(except for such, if any, as were disclosed in any environmental report
\ndelivered to Tenant before the date of the Original Lease), except to the
\nextent the same was exaggerated, exacerbated, aggravated or otherwise
\naffected by any act of Tenant or any Person acting, holding or claiming by,
\nthrough or under Tenant at any time or by any other Person after the
\nCommencement Date of the Original Lease, following receipt of any such
\nEnvironmental Complaint pertaining to the Premises or any part thereof as to
\nsuch environmental conditions which could result in an order, suit or other
\naction against Landlord or Tenant or Tenant’s representatives, agents or
\nSubtenants or which, in the reasonable opinion of Tenant, could impair the
\nvalue of Tenant’s interest in the Premises. If required herein, Landlord
\nshall take all action necessary to obtain a closure letter or other final,
\nfavorable written disposition of such matter from the applicable Governmental
\nAuthorities and shall deliver said letter or other disposition to Tenant. If
\nLandlord fails to take any action required herein, Tenant shall have the
\nright (but not the obligation), after providing Landlord with notice and a
\nreasonable opportunity to cure, to take such actions as it deems necessary or
\nadvisable so to clean up, remove, resolve, minimize the impact of, or
\notherwise deal with any such Environmental Complaint, in which event, all
\ncosts and expenses incurred by Tenant in the exercise of any such rights
\nshall be paid and reimbursed to Tenant by Landlord upon demand.<\/p>\n
SECTION 31.10. All of Tenant’s and Landlord’s respective rights,
\nremedies, liabilities and obligations under this ARTICLE 31 shall survive the
\nexpiration and the termination of this Lease (but neither party will have any
\nobligation or liability of any kind to the other party under this ARTICLE 31
\nfor or concerning (i) any condition that first came into existence after the
\nExpiration Date or (ii) any violation of any Environmental Law that first
\noccurred after the Expiration Date and was not caused by, and was not a
\nconsequence or result of, any action on omission of such party, or any
\ncondition that existed, before the expiration or termination of this Lease).<\/p>\n
SECTION 31.11. Under no circumstances whatsoever shall any Secured
\nLender (or any successor or assign of any Secured Lender) have any personal
\nliability or obligation of any kind to Tenant under or with respect to this
\nARTICLE 31 or any provision hereof (but the provisions of this Section shall
\nnot be construed as negating any liability of a Secured Lender in its
\ncapacity as outright owner of any Parcel for any act of such Secured Lender
\nafter it becomes the outright owner of such Parcel).<\/p>\n
ARTICLE 32
\n CERTIFICATES BY LANDLORD AND TENANT<\/p>\n
SECTION 32.1. Tenant shall, within ten (10) days after each and
\nevery written request by Landlord, execute, acknowledge and deliver to
\nLandlord or any other Person designated by Landlord a statement in writing
\ncertifying as to such matters regarding this Lease as Landlord may reasonably
\nrequest and certifying that the statement shall be binding upon Tenant and
\nmay be relied upon by any then existing or prospective Secured Lender,
\nassignee or purchaser of all or a portion of Landlord’s interest in the
\nPremises or this Lease or of an ownership interest in the Landlord. Tenant
\nagrees that the certificate attached hereto as EXHIBIT K shall be deemed
\nreasonable.<\/p>\n
70<\/p>\n
SECTION 32.2. Landlord agrees at any time and from time to time upon
\nnot less than ten (10) days’ prior written notice by Tenant, to execute,
\nacknowledge and deliver to Tenant or any other Person designated by Tenant a
\nstatement in writing certifying as to such matters regarding this Lease as
\nTenant may reasonably request. Such statement shall be binding upon Landlord
\nand may be relied upon by any then-existing or prospective permitted
\nSubtenant, assignee or purchaser of all or a portion of Tenant’s interest in
\nthis Lease or an ownership interest in Tenant.<\/p>\n
ARTICLE 33
\n CONSENTS AND APPROVALS<\/p>\n
SECTION 33.1.<\/p>\n
(a) All consents and approvals which may be given under
\nthis Lease shall, as a condition of their effectiveness, be in writing. The
\ngranting of any consent or approval by a party to perform any act requiring
\nconsent or approval under the terms of this Lease, or the failure on the part
\nof a party to object to any such action taken without the required consent or
\napproval, shall not be deemed a waiver by the party whose consent was
\nrequired of its right to require such consent or approval for any further
\nsimilar act, and each party hereby expressly covenants and warrants that as
\nto all matters requiring the other party’s consent or approval under the
\nterms of this Lease, the party requiring the consent or approval shall secure
\nsuch consent or approval for each and every happening of the event requiring
\nsuch consent or approval, and shall not claim any waiver on the part of the
\nother party of the requirement to secure such consent or approval.<\/p>\n
(b) If Tenant shall request Landlord’s consent and Landlord
\nshall fail or refuse to give such consent unreasonably in an instance where
\nLandlord is required pursuant to a provision of this Lease not to withhold
\nits consent unreasonably, Landlord’s liability hereunder for damages, if any,
\nshall be limited as provided in ARTICLE 43 and ARTICLE 48. Notwithstanding
\nanything which may be to the contrary herein, Landlord shall conclusively be
\ndeemed to have reasonably withheld its consent or approval if Landlord has
\nwithheld its consent or approval because a Secured Lender who has a right of
\nconsent or approval with respect to the matter in question under the terms of
\nthe Secured Loan such Secured Lender is holding, has failed or declined to
\ngive its consent or approval. Whenever this Lease provides in substance that
\na matter shall be as determined in the reasonable judgment of Landlord, and a
\nSecured Loan provides in substance that such matter shall be as determined by
\nthe Secured Lender holding such Secured Loan, Landlord shall conclusively be
\ndeemed to have exercised its judgment reasonably in determining such matter
\nas required by such Secured Lender. Landlord shall use reasonable efforts to
\nobtain the consent or approval of such Secured Lender if Landlord would, with
\nsuch consent or approval, give Landlord’s consent or approval.<\/p>\n
(c) Any matter or thing which is required under this Lease
\nto be done “satisfactorily” or to the “satisfaction” of a party need only be
\ndone “reasonably satisfactorily” or to the “reasonable satisfaction” of that
\nparty.<\/p>\n
71<\/p>\n
ARTICLE 34
\n SURRENDER AT END OF TERM OR RENEWAL TERMS<\/p>\n
SECTION 34.1. On the last day of the Term or any Renewal Term (if
\nexercised), or upon the Expiration Date (if earlier), or upon a re-entry by
\nLandlord upon the Premises pursuant to ARTICLE 25 hereof, Tenant shall
\nsurrender and deliver to Landlord the Premises (a) in the same or better
\ncondition as on the Commencement Date, (b) in good order, good and working
\ncondition and good repair, except for (i) ordinary wear and tear, (ii) damage
\nby fire or other casualty or by condemna tion or other taking that Tenant or
\nLandlord is required under this Lease to Restore but, despite reasonable
\ndiligence, was not by that time able to Restore (provided that all insurance
\nor condemnation proceeds comprising Restoration Funds which had not been
\napplied to such Restora tion shall have been deposited with Secured Lender,
\ntogether with any additional sums required to complete such Restoration as
\nestimated pursuant to SECTION 8.2 hereof), (iii) damage from any cause not
\nrequired to be repaired or Restored by Tenant or (iv) damage caused by
\nLandlord or by Persons acting or holding by, through or under Landlord (but
\nno provision of this Section shall be deemed to limit, restrict, diminish or
\naffect in any way any right of Tenant or Landlord under any policy of
\ninsurance), and (c) free and clear of all lettings, occupancies, possessions,
\nliens, security interests, charges and encumbrances other than those, if any,
\nwhich existed as of the Commencement Date, were created by or consented to by
\nLandlord, or which by their express written terms and conditions extend
\nbeyond the Expiration Date and which Landlord shall have expressly approved
\nin writing. Tenant hereby irrevocably waives any notice now or hereafter
\nrequired by law with respect to vacating the Premises on any such termination
\ndate or Expiration Date. Landlord shall have the right to make an inspection
\nof the Parcels following the surrender by Tenant to determine if Tenant has
\ncomplied with this Section and any other applicable provisions of this Lease.<\/p>\n
SECTION 34.2. On the last day of the Term (including any Renewal
\nTerm, if exercised), or upon the Expiration Date (if earlier), or upon
\nre-entry by Landlord upon the Premises pursuant to ARTICLE 25 hereof, Tenant
\nshall deliver to Landlord, to the extent Tenant is then in possession or
\ncontrol of the same, Tenant’s executed counterparts of all Subleases and any
\nservice and maintenance contracts then affecting the Parcels, true and
\ncomplete maintenance records for the Parcels, all original licenses and
\npermits then pertaining to the Parcels, permanent or temporary Certificates
\nof Occupancy then in effect for any or all Buildings, and all warranties and
\nguarantees then in effect which Tenant has received in connection with any
\nwork or services performed or Equipment installed in any or all Buildings,
\ntogether with a duly executed assignment thereof to Landlord.<\/p>\n
SECTION 34.3. If Tenant fails for any reason whatsoever to deliver
\npossession of the Premises to Landlord as provided herein on the Expiration
\nDate (or earlier date on which Tenant is to return, surrender or deliver
\npossession to Landlord as provided in ARTICLE 25, in SECTION 34.2, or in any
\nother provision hereof; the earliest of such dates is referred to herein as
\nthe “POSSESSION TERMINATION DATE”), Tenant shall be deemed guilty of an
\nillegal and wrongful holding over and shall (i) pay Landlord on demand, with
\nrespect to such holdover period, rent (prorated for the actual number of days
\nin such holdover period until Tenant surrenders and returns possession to
\nLandlord of the entire Premises) equal to the greater of (i) holdover rent
\ncalculated in the manner expressly authorized by <\/p>\n
72<\/p>\n
applicable Florida statutes (if applicable Florida statutes expressly provide
\na formula or similar manner for calculating wrongful holdover rent for
\ncommercial or industrial rental properties), or (ii) if applicable Florida
\nstatutes do not expressly provide a formula or similar manner for calculating
\nwrongful holdover rent for commercial or industrial rental properties, then
\nat the rate equal to 150% of the Rental (including, without limitation, all
\nFixed Rent, Impositions and other components of Rental) that was applicable
\nand payable by Tenant under the Lease for and with respect to the twelve
\nmonths immediately preceding the Possession Termination Date. Notwith
\nstanding Tenant’s obligation to pay, or Tenant’s payment of, such holdover
\nrent for or on account of such holdover period, Tenant shall nevertheless at
\nall times after the Possession Termination Date be and remain (i) guilty of
\nwrongfully holding over possession and (ii) obligated to deliver and return
\nto Landlord possession of the Premises in the condition specified in SECTION
\n34.1 and to make the deliveries to Landlord provided for in SECTION 34.2
\nhereof.<\/p>\n
ARTICLE 35
\n ENTIRE AGREEMENT<\/p>\n
This Lease (including the Exhibits attached hereto and comprising a
\npart hereof) contains all of the promises, agreements, conditions,
\ninducements and understandings between Landlord and Tenant with respect to
\nthe Premises and supersedes and entirely replaces any and all prior or
\ncontemporaneous agreements, promises and understandings (including without
\nlimitation, the provisions of Section 45.1 of the Original Lease), and there
\nare no promises, agreements, conditions, understandings, inducements,
\nwarranties or representations, oral or written, expressed or implied, between
\nthem with respect to the Premises other than as herein expressly set forth.<\/p>\n
ARTICLE 36
\n QUIET ENJOYMENT<\/p>\n
Landlord covenants that, if and as long as Tenant shall faithfully
\nperform the agreements, terms, covenants and conditions hereof, Tenant and
\nany Person who lawfully and in conformity with the provisions hereof claims
\nthrough or under Tenant shall and may (subject, however, to the matters set
\nout on EXHIBIT B hereof, the other Permitted Exceptions and all of the other
\nprovisions, reservations, terms and conditions of this Lease) peaceably and
\nquietly have, hold and enjoy the Premises for the term hereby granted without
\nmolestation or disturbance by or from Landlord or any person claiming through
\nor under Landlord. Landlord warrants that as of the Commencement Date, it
\nwill own the Premises free of any encumbrance superior to this Lease and
\nTenant’s interest hereunder created or suffered by Landlord, except (a) those
\nmatters described on EXHIBIT B hereof and the other Permitted Exceptions, and
\n(b) Secured Loans as provided in ARTICLE 30. This covenant shall be construed
\nas a covenant running with the Land, to and against successors to Landlord’s
\ninterest in this Lease, and is not, nor shall it operate or be construed as,
\na personal covenant of Landlord, except to the extent of Landlord’s interest
\nin this Lease and only so long as such interest shall continue, and
\nthereafter this covenant shall be binding only upon successors in interest of <\/p>\n
73<\/p>\n
Landlord’s interest in this Lease, to the extent of their respective
\ninterests, as and when they shall acquire the same, and so long as they shall
\nretain such interest.<\/p>\n
ARTICLE 37
\n [INTENTIONALLY OMITTED]<\/p>\n
ARTICLE 38
\n INVALIDITY OF CERTAIN PROVISIONS<\/p>\n
If any term or provision of this Lease or the application thereof to
\nany person or circumstances shall, to any extent, be invalid or
\nunenforceable, the remainder of this Lease, or the application of such term
\nor provision to persons or circumstances other than those as to which it is
\nheld invalid or unenforceable, shall not be affected thereby, and each term
\nand provision of this Lease shall be valid and be enforced to the fullest
\nextent permitted by law.<\/p>\n
ARTICLE 39
\n FINANCIAL REPORTS<\/p>\n
Tenant shall deliver to Landlord three copies of Tenant’s published
\nannual reports, quarterly reports, and S.E.C. Forms 10-Q and 10-K (or any
\nsuccessor or replacement forms required by applicable law as in effect from
\ntime to time) during the Term of this Lease (but if Tenant ceases to publish
\nquarterly or annual financial reports, Tenant shall nevertheless be obligated
\nto deliver to Landlord quarterly and annual financial statements of Tenant,
\nprepared and certified by a senior officer of Tenant as having been prepared
\nin accordance with good accounting practice on a consistently-applied basis,
\nnot later than 90 days after the end of each fiscal quarter of Tenant.
\nQuarterly statements and 10-Q’s shall be delivered within 60 days of the end
\nof each fiscal quarter of Tenant (or, as long as Tenant continues to be
\nsubject to the reporting requirements of the Securities Exchange Act of 1934,
\nas amended, or any successor or replacement statute, such later date as such
\nannual reports are actually distributed to or made available for Tenant’s
\nshareholders, or filed with the S.E.C., as the case may be) and annual
\nstatements and 10-K’s within 90 days of the end of each fiscal year of Tenant
\n(or, as long as Tenant continues to be subject to the reporting requirements
\nof the Securities Exchange Act of 1934, as amended, or any successor or
\nreplacement statute, such later date as such annual reports are first either
\ndistributed to or made available for Tenant’s shareholders or filed with the
\nSEC). Tenant shall not be required to furnish any other financial reports,
\noperating statements or any other statements or reports with respect to
\nTenant. If Tenant assigns this Lease in conformity with the applicable
\nprovisions hereof, the assignee of Tenant’s rights and obligations shall be
\nsubject to all of the requirements and provisions of this ARTICLE 39 as
\nthough it were the Tenant expressly named herein.<\/p>\n
74<\/p>\n
ARTICLE 40
\n RECORDING OF MEMORANDUM<\/p>\n
75<\/p>\n
Landlord and Tenant, each upon the written request of the other or
\nany Secured Lender, shall execute, acknowledge and deliver a memorandum of
\nthis Lease, and of each modification of this Lease, in proper form for
\nrecordation in the public records of Duval County, Florida, which shall set
\nforth the matters described in Fla. Statutes Section 713.10(2) and shall
\ndescribe the Term, the existence of Renewal Options, the existence of any
\neasements [(including, without limitation, the Parking\/ Driveway Facilities)],
\nand such other material provisions hereof (if any) which Landlord and
\nTenant may mutually determine are suitable and appropriate for inclusion
\ntherein. Neither party shall record this Lease without the prior consent of
\nthe other party.<\/p>\n
ARTICLE 41
\n CERTAIN MATTERS PERTAINING TO PARCEL A<\/p>\n
SECTION 41.1. Landlord and Tenant agree that the occurrence of an
\nEvent of Default under this Lease shall also constitute, automatically and
\nwithout any notice, demand or other action by Landlord, an Event of Default
\nunder the Original Lease.<\/p>\n
SECTION 41.2. It is anticipated that (a) the Initial Building to be
\nconstructed by Landlord on the Land as provided in Exhibit C hereto may have
\none or more common walls that it shares with the Parcel A Building, as well
\nas a common roof and reciprocal easements or rights of support, and (ii) the
\nInitial Building and the Parcel A Building may be constructed so that they
\nopen into one another and can be used and operated in a unified and
\nintegrated manner. Despite the foregoing, each of the Tenant hereunder and
\nthe tenant under the Original Lease (and Landlord, if and when this Lease or
\nthe Original Lease expires or is terminated) shall have, and may exercise at
\nany time or from time to time, the right unilaterally to close off the
\nbuildings, and other improvements on its Parcel from all buildings and other
\nimprovements on any other Parcel and to exclude all other persons therefrom.
\nIt is also possible that portions of the Parcel A Building may encroach onto
\nthe Land or portions of the Initial Building may encroach onto Parcel A.
\nTenant accepts and agrees to all of the foregoing and shall not have any
\nright to, and will not assert, any objection of any kind to any of the
\nforegoing.<\/p>\n
SECTION 41.3. The Original Lease is hereby amended as follows,
\neffective from and after the date of this Agreement. For all purposes of the
\nOriginal Lease: (i) Parcel B-1 (as defined herein) is excluded from, and is
\nnot part of, the “Land”, the “Premises”, or “Parcel A” as those terms are
\nused in the Original Lease (and there shall be no reduction in the Rental
\npayable by the Tenant under the Original Lease on account of, or as a result
\nof, the foregoing); (ii) the Declaration of Easements (as defined in this
\nAgreement) is a Permitted Exception for all purposes of the Original Lease;
\n(iii) the Tenant (as defined in the Original Lease) covenants that it will
\nperform, and cause to be satisfied, performed and complied with, all
\nprovisions of the Declaration of Easements applicable to the Land or the
\nImprovements (as each of those terms is defined in the Original Lease) or to
\nthe owner of either or both thereof; (iv) the Tenant (as defined in the
\nOriginal Lease) will timely pay, as additional rent under the Original Lease,
\nall costs, expenses and other amounts that the owner of Parcel A may, at any
\ntime or from time to time, be or become obligated to pay under or in respect
\nof the Declaration of Easements; and (v) Landlord shall not relocate any of
\nthe easements located on Parcel A created <\/p>\n
76<\/p>\n
pursuant to the Declaration of Easements without the prior consent of the
\ntenant of Parcel A at such time, which consent shall not be unreasonably
\nwithheld or delayed.<\/p>\n
SECTION 41.4. The provisions of this Article 41 are part of this
\nLease, and they are also part of, and constitute an amendment to, the
\nOriginal Lease, and by executing this Lease, the Landlord and the Tenant are,
\nin their respective capacities as the landlord and the tenant under the
\nOriginal Lease, also amending the Original Lease so as to include, as a part
\nof the Original Lease, the provisions of this Article 41 (and also, to the
\nextent necessary to define any capitalized term used in this Article 41, the
\ndefinition of such term as set out in this Lease). However, despite the
\npreceding sentence, the provisions of this Article 41 will not be deemed to
\nconstitute an amendment of the Original Lease until the holder of the first
\nmortgage loan that encumbers Parcel A on the date of this Lease consents
\nthereto or the lien of that mortgage loan is released, whichever occurs first.<\/p>\n
ARTICLE 42
\n MISCELLANEOUS<\/p>\n
SECTION 42.1. The captions of this Lease are for convenience of
\nreference only and in no way define, limit or describe the scope or intent of
\nthis Lease or in any way affect this Lease.<\/p>\n
SECTION 42.2. The Table of Contents is for the purpose of
\nconvenience of reference only and is not to be deemed or construed in any way
\nas part of this Lease or as supplemental thereto or amendatory thereof.<\/p>\n
SECTION 42.3. The use herein of the neuter pronoun in any reference
\nto Landlord or Tenant shall be deemed to include any individual Landlord or
\nTenant, and the use herein of the words “successors and assigns” or
\n“successors or assigns” of Landlord or Tenant shall be deemed to include the
\nheirs, legal representatives and assigns of any individual Landlord or Tenant.<\/p>\n
SECTION 42.4. All of Tenant’s obligations hereunder with respect to
\nRestorations and\/or payment of any Shortfall shall (as they apply to any
\ndamage, destruction, condemnation or taking occurring prior to the Expiration
\nDate) survive any termination of this Lease.<\/p>\n
SECTION 42.5. If more than one Person becomes Landlord or Tenant
\nhereunder: the other party may require the signatures of all such Persons in
\nconnection with any notice to be given or action to be taken by that party
\nhereunder; and, each Person comprising a multi-Person Tenant or Landlord (but
\nnot including any shareholders of a party which is a corporation, trustees of
\na party which is a trust, partners of a party which is a general or limited
\npartnership, or other constituent members of any entity which is a party)
\nshall be fully liable for all of that party’s obligations hereunder, subject
\nto ARTICLE 43. Any notice by a party to any Person named as the other party
\nand designated in SECTION 26.1 (or in any notice given pursuant to that
\nSection) as an addressee of notices shall be sufficient and shall have the
\nsame force and effect as though given to all Persons named as such other
\nparty.<\/p>\n
77<\/p>\n
SECTION 42.6. The terms “herein,” “hereunder” and words of similar
\nimport shall be construed to refer to this Lease as a whole, and not to any
\nparticular Article or Section, unless expressly so stated.<\/p>\n
SECTION 42.7. The term “and\/or” when applied to two or more matters
\nor things shall be construed to apply to any one or more or all thereof as
\nthe circumstances warrant at the time in question.<\/p>\n
SECTION 42.8. Except as otherwise expressly provided in this Lease,
\nthere shall be no merger of this Lease or the leasehold estate created hereby
\nwith the fee estate in the Premises or any part thereof by reason of the same
\nPerson’s acquiring or holding, directly or indirectly, this Lease or the
\nleasehold estate created hereby or any interest in this Lease or in such
\nleasehold estate as well as the fee estate in the Premises; provided,
\nhowever, that no such merger shall occur in any event without the written
\nconsent of each Secured Lender.<\/p>\n
SECTION 42.9. Landlord and Tenant each covenants, warrants and
\nrepresents to the other as follows: no broker other than Pantheon Properties,
\nInc. and Jim Runsdorf were instrumental in bringing about or consummating
\nthis Lease on its behalf; and, it had no dealings with any other broker,
\nfinder or other procuring Person concerning the leasing of the Premises by
\nLandlord to Tenant. Landlord and Tenant shall each defend, indemnify and hold
\nthe other harmless against and from any claims for any other brokerage
\ncommissions or fees, and all costs, expenses and liabilities in connection
\ntherewith, including, without limitation, attorneys’ fees and expenses, (a)
\nin connection with such claims if any broker or other Person claims to have
\nhad dealings with the indemnifying party, and (b) in connection with the
\nenforcement of a party’s rights under this SECTION 42.9. Any brokerage
\ncommission or fee due Pantheon Properties, Inc. or Jim Runsdorf shall be paid
\nby Landlord.<\/p>\n
SECTION 42.10.<\/p>\n
(a) This Lease may not be changed, modified, or terminated
\norally, nor may any provision hereof be waived, but only by a written
\ninstrument of change, modification or termination executed by the party
\nagainst whom enforcement of any change, modification, or termination or
\nwaiver is sought.<\/p>\n
(b) Each of Landlord and Tenant agrees to be a party
\nsignatory to an amendment or modification of this Lease, by instrument in
\nrecordable form, if requested to do so by a Secured Lender or a proposed
\nSecured Lender as a condition precedent to the placing, replacing,
\nrefinancing or extending of a Secured Loan, provided and upon condition that
\nsuch amendment or modification shall not (i) affect the financial obligations
\nof such party hereunder, (ii) adversely affect the value of the fee simple or
\nleasehold estate (as the case may be) of such party hereunder or (iii)
\nmaterially adversely affect, diminish or reduce any rights or remedies of
\nsuch party hereunder or materially increase the liabilities, responsibilities
\nor obligations of such party hereunder.<\/p>\n
78<\/p>\n
(c) No amendment or modification of this Lease which could
\nhave an adverse effect on the rights or interests of, or the value of the
\ncollateral security of, any Secured Lender shall be effective without the
\nprior written consent of such Secured Lender if required under the terms of
\nits respective Secured Loan documentation.<\/p>\n
SECTION 42.11. This Lease shall be governed by and construed in
\naccordance with the laws of the State of Florida applicable to leases made
\nand to be performed in said State, without the aid of any canon or rule of
\nlaw requiring construction against the party drawing or causing this Lease to
\nbe drawn.<\/p>\n
SECTION 42.12. All references in this Lease to any particular
\n“Article”, “Articles”, “Section” or “Sections” shall be deemed to refer to
\nthe designated Article(s) or Section(s), as the case may be, of this Lease.<\/p>\n
SECTION 42.13. All plans, drawings, specifications and models
\nrequired to be furnished by Tenant to Landlord under this Lease, including,
\nwithout limitation, all plans, drawings, specifica tions or models prepared
\nin connection with any Restoration or Capital Improvement, shall become the
\nsole and absolute property of Landlord upon the Expiration Date. Tenant shall
\ndeliver all such documents to Landlord promptly upon the Expiration Date.
\nTenant shall also deliver one copy of each thereof to Landlord within a
\nreasonable time after Tenant receives the same. Tenant’s obliga tion under
\nthis SECTION 42.13 shall survive the Expiration Date.<\/p>\n
SECTION 42.14. All references in this Lease to “licensed
\nprofessional engineer” or “registered architect” shall mean a professional
\nengineer or architect who is licensed or registered, as the case may be, by
\nthe State of Florida.<\/p>\n
SECTION 42.15. This Lease shall not be construed to create a
\npartnership, joint venture, agency relationship or fiduciary relationship of
\nany kind between the parties.<\/p>\n
SECTION 42.16. THE PARTIES SHALL AND DO HEREBY EACH IRREVOCABLY
\nWAIVE TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN
\nCONNECTION WITH THIS LEASE OR THE INTERPRETATION, CONSTRUC TION OR
\nENFORCEMENT HEREOF OR OF ANY PROVISION HEREOF.<\/p>\n
SECTION 42.17. Tenant shall not sell, lease or otherwise transfer or
\ndispose of, or permit any Person to use, any excess or residual development
\ncapability of, or any other entitlement or development rights pertaining or
\nrelating to, the Land, nor shall Tenant contract or agree to do any of the
\nforegoing.<\/p>\n
SECTION 42.18. Upon the expiration or other termination of this
\nLease, neither party shall have any further obligation or liability to the
\nother except as otherwise expressly provided in this Lease and except for
\nsuch obligations as by their nature or under the circumstances can only be,
\nor by the express provisions of this Lease may or are intended to be,
\nperformed after such expiration <\/p>\n
79<\/p>\n
or other termination; and, in any event, without limiting the generality of
\nthe foregoing, (i) unless otherwise expressly provided in this Lease, any
\nliability for a payment which shall have accrued in, for, on account of or
\nwith respect to any period ending at the time of expiration or other
\ntermination of this Lease shall survive the expiration or other termination
\nof this Lease and (ii) any right of Landlord to receive payment from Tenant,
\nfor or on account of any period after this Lease has been terminated because
\nof Tenant’s default hereunder, of either damages for Tenant’s default or of
\nRental provided for herein, shall survive such termination of this Lease.<\/p>\n
SECTION 42.19. The provisions of this Lease are intended to be for
\nthe sole benefit of the two parties hereto and all Secured Lenders and all of
\ntheir respective successors and assigns, and none of the provisions of this
\nLease are intended to be, nor shall they be construed to be, for the benefit
\nof any third party other than Secured Lenders.<\/p>\n
SECTION 42.20. Notwithstanding that Tenant has various obligations
\nunder this Lease with respect to portions of the Parcels which are not
\nincluded within the Premises, nothing herein shall be interpreted to grant
\nTenant any rights in, to or concerning such Parcels whatsoever except as
\nfollows: (i) such rights of entry as are necessary to enable Tenant to
\nperform its obligations hereunder; and (ii) Tenant shall have (1) the
\nnonexclusive easement granted in the penultimate paragraph of ARTICLE 2, and
\n(2) a nonexclusive right to use whatever walking trail on the Parcels that
\nLandlord may from time to time make available for the use of any tenants or
\nusers of the Parcels. Notwithstanding the foregoing, Landlord reserves the
\nright to relocate such parking areas, access and walking trails to other
\nlocations on the Parcels provided Tenant at all times has substantially
\nequivalent parking rights, access and walking trails as it had on the
\nCommencement Date.<\/p>\n
SECTION 42.21. Without limiting the generality or breadth of any of
\nTenant’s other covenants or agreements set out herein, Tenant hereby agrees
\nas follows: Tenant will perform, and cause to be satisfied, performed and
\ncomplied with, all provisions of the Declaration of Easements applicable to
\nthe Land or the Improvements or to the owner of either or both thereof; and,
\nTenant will timely pay, as additional rent hereunder, all costs, expenses and
\nother amounts that the owner of the Land may, at any time or from time to
\ntime, be or become obligated to pay under or in respect of the Declaration of
\nEasements. Landlord shall not relocate any of the easements located on Parcel
\nB or Parcel B-1 created pursuant to the Declaration of Easements without the
\nprior consent of the tenant of such Parcel at such time, which consent shall
\nnot be unreasonably withheld or delayed<\/p>\n
ARTICLE 43
\n LIMITATION OF LIABILITY<\/p>\n
Tenant shall look only to Landlord’s Affected Property for the
\ncollection of any money judgment in the event of, and on account of, any
\nbreach or default under this Lease by Landlord. (For purposes hereof,
\n“LANDLORD’S AFFECTED PROPERTY” means Landlord’s respective interests in and
\nto this Lease, the Premises, and such of the other Parcels, if any, as to
\nwhich Tenant then either is the lessee under the Original Lease or holds a
\nvalid, effective, exercisable Expansion Option pursuant to the provisions of
\nArticle 45 of the Original Lease.) No other property or assets of <\/p>\n
80<\/p>\n
Landlord, and no property or assets of any kind of any partner in Landlord or
\nany direct or indirect owner of an interest in Landlord or any officer,
\ndirector, partner, principal or employee of Landlord (each a “PROTECTED
\nPERSON”) shall be subject to levy, attachment, garnishment, execution or
\nother enforcement procedure for the satisfaction of any such judgment (or
\nother judicial process) nor shall any recourse of any kind whatsoever be
\nsought or obtained directly or indirectly under, for or on account of this
\nLease, any breach or default by Landlord hereunder, or any other matter
\nrelating to the Premises, this Lease, the relationship between Landlord and
\nTenant, the acts or omissions of Landlord, or any other similar or related
\nmatter. The interest of Landlord in and to the Landlord’s Affected Property
\nshall consist (when and to the extent the same are held by Landlord) of
\nLandlord’s estate in Landlord’s Affected Property and Landlord’s interest in
\nand to the rents, income, proceeds, receipts, revenues, issues and profits
\nissuing from the Landlord’s Affected Property then held by Landlord, any
\ninsurance policies with respect to Landlord’s Affected Property carried under
\nthis Lease and the premiums or proceeds thereof, any money or securities
\ndeposited by Tenant with Landlord, any award to which Landlord may be
\nentitled in any condemnation proceedings or by reason of a temporary taking
\nof the Landlord’s Affected Property, and any real estate tax refunds accrued
\nto Landlord. In confirmation of the foregoing, if Tenant shall acquire a lien
\non or interest of any kind in any other property or assets of Landlord, or
\nany property or assets of any kind of any Protected Person, directly or
\nindirectly as a result of, on account of or with respect to a breach or
\ndefault under this Lease by Landlord, by judgment or otherwise, Tenant shall
\npromptly release such lien or interest by executing and delivering an
\ninstrument in recordable form to that effect prepared by Landlord or such
\nProtected Person; provided, however, that such instrument of release shall
\nnot release any such lien on Landlord’s interest in and to the Premises. This
\nlimitation of Landlord’s liability shall not apply to the extent (if any)
\nthat Landlord misapplies insurance or condemnation proceeds in a manner other
\nthan as required by the Lease or Landlord misappropriates any monies or
\nsecurities deposited by Tenant with Landlord; in such event, Tenant shall
\nhave full recourse against Landlord for the moneys or securities so
\nmisapplied or misappropriated without regard to the foregoing provisions of
\nthis Article. Nothing in this ARTICLE 43 hereof shall be interpreted as
\nprohibiting Tenant from being awarded specific performance or an injunction
\n(i) to enjoin any breach or default under this Lease by Landlord, (ii) to
\nprohibit Landlord from distributing to its partners at any time that Landlord
\nis in default under this Lease the rents, receipts, revenues, issues and
\nprofits from the Landlord’s Affected Property or the Parcels, or (iii) to
\ncompel the proper application of insurance and condemnation proceeds in
\naccordance with the express provisions of this Lease.<\/p>\n
ARTICLE 44
\n SUCCESSORS AND ASSIGNS<\/p>\n
Except as otherwise expressly provided in this Lease, the provisions
\nof this Lease shall bind and benefit the respective successors and assigns of
\nthe parties hereto with the same effect as if mentioned in each instance
\nwhere a party is named or referred to; provided, however, that the provisions
\nof this ARTICLE 44 shall not be construed as modifying the provisions of
\nARTICLE 10 or the conditions or limitations contained in ARTICLE 24.<\/p>\n
81<\/p>\n
ARTICLE 45
\n CERTAIN CONDITIONS PRECEDENT<\/p>\n
SECTION 45.1. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.2. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.3. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.4. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.5. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.6. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.7. CONDITIONS PRECEDENT. Tenant’s rights, and Landlord’s
\nobligations, under and with respect to this Lease shall be subject to the
\nsatisfaction of all of the following conditions precedent (in addition to any
\nother conditions set out elsewhere in this Lease):<\/p>\n
(1) APPROVALS AND PERMITS. Landlord shall have received all
\napprovals, licenses and permits (collectively, “APPROVALS”) from the City of
\nJacksonville and all other applicable or relevant Governmental Authorities
\nnecessary to permit the construction of the Initial Building and all
\nancillary improvements (collectively, the “ADDITION”), in each case by such
\ndate as is necessary, without employing overtime work or other exigent or
\nextraordinary means, to enable construction of the Addition to be properly
\ncompleted by the applicable Estimated Completion Date. In connection with the
\nabove, Landlord’s obligation shall be limited to making a reasonable and
\ncustomary good faith effort to obtain the Approvals but shall not include any
\nobligation to pay fees or to accept or agree to exactions or conditions to
\nthe Approvals which in Landlord’s sole judgment are unreasonable in light of
\nthe nature of the particular project or the Approvals sought. Any failure of
\nLandlord to obtain the Approvals shall not constitute a default under this
\nLease. Tenant hereby irrevocably waives, and releases Landlord from, all
\nliability for all damages and costs (including, without limitation, attorneys
\nfees, expert witness fees and costs, and related expenses) which may be
\nsuffered, paid or incurred by Tenant as a result of Landlord’s obtaining or
\nfailing to obtain the Approvals for any reason except Landlord’s intentional,
\nunreasonable and unexcused refusal to file and process an application
\ntherefor.<\/p>\n
(2) LENDER APPROVALS. Landlord shall, by such date as is
\nnecessary, without employing overtime work or other exigent or extraordinary
\nmeans, to enable construction of the Addition to be properly completed by the
\napplicable Estimated Completion Date, have sought and obtained a Secured Loan
\nto serve as a source of construction financing for the construction of the
\nAddition, on such terms and conditions as are acceptable to Landlord in its
\nsole and absolute discre tion. Landlord agrees that, in connection with its
\nefforts to obtain such construction financing: (i) Landlord shall offer, and
\nbe willing, to subject its interest in the Addition, the land on which it is
\nto <\/p>\n
82<\/p>\n
be constructed, and this Lease (as it applies to such land and Addition) to
\nthe liens and security interests of such construction lender (subject to any
\nprior rights or interests therein or thereto, and any rights of consent or
\napproval, of any Secured Lender); and (ii) if the only reason Landlord is
\nunable to obtain from third party sources suitable construction financing
\nacceptable to Landlord is that the proposed construction lender requires that
\nit be provided with one or more guaranties of any kind (whether guaranties of
\npayment, of completion, of carry costs, or otherwise; collectively,
\n“LENDER-REQUIRED GUARANTIES”), Landlord shall so notify Tenant and give
\nTenant a reasonable opportunity (but no longer than 15 days after such notice
\nfrom Landlord to Tenant) to provide to such prospective construction lender,
\nat Tenant’s sole cost and liability (and at no cost or liability to
\nLandlord), all of such Lender-Required Guaranties (which may be guaranties
\nfrom Tenant, any Affiliate of Tenant or any other Person) that would satisfy
\nthe proposed construction lender and cause it to be willing to provide
\nconstruction financing to Landlord on terms and conditions acceptable to
\nLandlord, and if Tenant for any reason refuses or fails to provide such
\nLender-Required Guaranties within the time period so provided therefor by
\nLandlord, this condition precedent set out in this SUBSECTION (2) shall be
\ndeemed unsatisfied and Landlord shall have no obligation of any kind with
\nrespect to such Addition, but if there are reasons for Landlord’s inability
\nto obtain acceptable construction financing other than or in addition to a
\nrequirement for Lender- Required Guaranties, Landlord shall so notify Tenant,
\nin which case Tenant shall have 30 days from its receipt of such notice to
\ndeliver to Landlord a written notice (a “LAND EXERCISE NOTICE”) in which
\nTenant clearly, irrevocably and unconditionally (i) agrees to lease from
\nLandlord hereunder only the land component of the Parcel or Parcels on which
\nthe Addition would have been constructed, for an annual Fixed Rent of $1.00
\nper year, and forever releases Landlord from any and all obligations of any
\nand every kind whatsoever with respect to such Addition other than to lease
\nto Tenant such land on the terms and conditions set out herein, (ii) promises
\npromptly to commence, and diligently to prosecute and complete, the
\nconstruction of the Addition, lien-free and in accordance with all CC&R’s,
\nall applicable laws, codes and ordinances, and all provisions of this Lease,
\nall at Tenant’s sole cost, liability and risk, and (iii) promises to pay to
\nLandlord, as compensation for remaining ready and willing to perform its
\nobligations hereunder and for any work, activities, time or effort it may
\ntheretofore have expended in connection herewith an amount in cash (the
\n“LANDLORD COMPENSATION AMOUNT”) equal to five percent (5%) of the Total
\nConstruc tion Cost for such Addition (and to certify the amount of such Total
\nConstruction Cost under oath to Landlord, and to allow Landlord to inspect,
\ncopy and audit Tenant’s books and records relating thereto), such amount to
\nbe paid to Landlord in five substantially equal annual installments as
\nfollows: together with Tenant’s delivery to Landlord of the Land Exercise
\nNotice, Tenant shall pay Landlord an amount in cash equal to 20% of the
\namount Tenant estimates in good faith will equal the total Landlord
\nCompensation Amount for such Addition; and, on each of the next four
\nanniversa ries of that date, Tenant shall pay Landlord an amount equal to
\none-fourth (1\/4) of the amount by which the total Landlord Compensation
\nAmount for such Addition exceeds the amount Tenant paid Landlord on account
\nthereof when Tenant delivered its Land Exercise Notice relating thereto. All
\nof Tenant’s obligations, undertakings and liabilities hereunder and with
\nrespect hereto, and as provided for herein, shall constitute obligations of
\nTenant to Landlord under this Lease. If Tenant fails for any reason
\nwhatsoever to deliver such a Land Exercise Notice to Landlord within such
\n30-day period, the condition precedent set out in this SUBSECTION (2) shall
\nbe deemed unsatisfied and Landlord shall not have any obligation or liability <\/p>\n
83<\/p>\n
of any kind (including, without limitation, any obligation to lease the Land
\nto Tenant) with respect to or under this Lease.<\/p>\n
(3) NO NON-CONFORMING ASSIGNMENT. There shall not have
\noccurred (whether voluntarily, by operation of law, pursuant to court order
\nor judicial sale, or otherwise) any sale, assignment, sublease, transfer or
\ndisposition of any kind whatsoever of any or all of Tenant’s rights of
\npossession of the Premises or interests in, to or under the Original Lease or
\nthis Lease, respectively, that did not conform to the applicable conditions
\nand requirements of the Original Lease or this Lease, respectively.<\/p>\n
(4) NO TENANT DEFAULT. All rights of Tenant under this
\nLease shall terminate at Landlord’s election (in Landlord’s sole, exclusive
\nand unreviewable discretion) expressed in a notice of such termination given
\nby Landlord to Tenant, and be of no further force and effect, if, prior to
\nthe Commencement Date, either (i) an Event of Default under this Lease or
\nunder the Original Lease shall have occurred and shall then remain uncured,
\nor (ii) Landlord shall have given to Tenant two or more notices of material
\nDefaults under the Original Lease within the immediately preceding 12-month
\nperiod.<\/p>\n
In the event any of the foregoing conditions is not satisfied or any of the
\nforegoing disqualifications or termination events occurs, then, on notice
\nfrom Landlord to Tenant, (i) this Lease shall be terminated and Tenant’s
\nexercise (under the Original Lease) of the Expansion Option relating hereto
\nshall be deemed to have been rescinded and withdrawn and shall be void and of
\nno effect, as though the Expansion Option had never been exercised, and (ii)
\nTenant shall pay to Landlord on demand an amount in cash sufficient fully to
\ncompensate and reimburse Landlord for all costs, losses and expenses of any
\nand every kind whatsoever which were paid or incurred by Landlord prior to
\nsuch termination in connection with or as a result or consequence of Tenant’s
\nexercise of such Option, which costs shall include but not be limited to the
\nitems (if paid or incurred by Landlord) which are described in the definition
\nof Total Construction Cost and also those items which Tenant would have been
\nobligated to pay Landlord if Tenant had withdrawn or revoked its Exercise
\nOption pursuant to SECTION 45.4 of the Original Lease.<\/p>\n
SECTION 45.8. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.9. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.10. TOTAL CONSTRUCTION COST. “TOTAL CONSTRUCTION COST”
\nshall mean an amount (expressed in dollars) equal to 110% of the total amount
\nof all costs of any and every kind whatsoever paid or incurred by Landlord to
\nothers (and not including Landlord’s own general overhead or administrative
\ncosts, but including Landlord’s out-of-pocket expenses such as travel
\nexpenses of Landlord’s partners or employees) for or in connection with (i)
\nthe development and construction of the Addition and (ii) the installation or
\nperformance after the date hereof of certain improvements in or work upon the
\nParcel A Building (but not any costs paid or incurred for, or properly
\nallocable to, any other project being done off the Parcels), including
\n(without limitation) <\/p>\n
84<\/p>\n
all so-called “hard costs”, all costs for labor, services, materials and
\nequipment, and all so-called “soft costs” (including, but not limited to, all
\ncosts of obtaining Approvals, appraisals, architectural drawings and
\nspecifications, soils, engineering and environmental studies and reports,
\ntitle insurance, and plats of survey, all escrow charges, brokerage
\ncommissions, fees and expenses of attorneys and accountants, and all loan
\nfees, interest and other costs of or in connection with construction
\nfinancing).<\/p>\n
SECTION 45.11. ARBITRATION. If the parties fail to agree on the
\namount of the annual Fixed Rent within ten (10) days after either party gives
\nnotice to the other of its desire to arbitrate the issue, the issue (I.E.,
\nthe amount of the annual Fixed Rent, determined in accordance with the
\nprovisions of SECTIONS 3 AND 45.10) shall be submitted to binding
\narbitration. Unless mutually agreed otherwise by the parties, all
\narbitrations shall be conducted in Duval County, Florida, as follows: Not
\nlater than 15 days after either party has notified the other party that the
\nissue will be submitted to arbitration, each party will choose one arbitrator
\nand will notify the other party of the arbitrator it had selected; if either
\nparty fails to designate its arbitrator within that period, it will be deemed
\nto have waived its right to select an arbitrator for that proceeding and the
\nother party’s arbitrator will be the sole arbitrator who, individually, will
\ndetermine the amount of such annual Fixed Rent; if each party timely
\ndesignates an arbitrator, those two arbitrators will determine the amount of
\nsuch annual Fixed Rent for such Addition in accordance with the standards set
\nout in, and the provisions of, SECTIONS 3 AND 45.10, but if they are unable
\nto agree on such amount within 30 days after both of them were appointed,
\nthen (i) if the amount of the annual Fixed Rent as determined by the
\narbitrator whose amount was the lesser of the two, is 95% or more of the
\namount of the annual Fixed Rent as determined by the other arbitrator, then
\nthe amount of the Fixed Rent shall be the mean average of the respective
\namounts thereof as determined by each of the two arbitrators, but if the
\nrespective amounts of the annual Fixed Rent as determined by the two
\narbitrators are not as described in the preceding clause (i) (I.E., they are
\nmore than 5% apart), then (ii) such two arbitrators shall select a third
\narbitrator (and shall notify Landlord and Tenant of their selection); such
\nthird arbitrator shall, within 30 days after his appointment as such
\narbitrator, determine and set the amount of such annual Fixed Rent for such
\nAddition in accordance with the standards set out in, and the provisions of,
\nSECTIONS 3 AND 45.10, and he shall notify both parties in writing of his
\ndetermination. Each appraiser designated to participate in this arbitration
\nprocess must be an MAI appraiser who had been actively engaged in commercial
\nreal estate activities or appraising of commercial real estate for at least
\nthe preceding five years in the Jacksonville, Florida area. Each party shall
\npay all fees, costs and expenses of the arbitrator it selects and designates;
\nboth parties jointly will share equally the fees, costs and expenses of any
\nthird arbitrator who is designated by the other two parties. The
\ndetermination of the amount of annual Fixed Rent by the two arbitrators or,
\nif applicable, by the third arbitrator, as the case may be, in accordance
\nwith this Section shall be final, conclusive and binding on the parties.<\/p>\n
SECTION 45.12. [INTENTIONALLY OMITTED.]<\/p>\n
SECTION 45.13. [INTENTIONALLY OMITTED.]<\/p>\n
85<\/p>\n
SECTION 45.14. [INTENTIONALLY OMITTED.]<\/p>\n
ARTICLE 46
\n RENEWAL OPTIONS<\/p>\n
SECTION 46.1. RENEWAL OPTIONS. If no uncured Default then exists,
\nTenant shall (subject to the provisions of SECTION 10.11) have the option
\n(“RENEWAL OPTION”) to extend this Lease for two (2) additional terms of ten
\n(10) years each (individually, a “RENEWAL TERM” and collectively, “RENEWAL
\nTERMS”) on the same terms and conditions as provided herein (including,
\nwithout limitation, the payment by Tenant of all Impositions and other
\ncomponents of Rental) except for the amount of the Fixed Rent. Tenant shall
\nexercise each of the Renewal Options by giving Landlord written notice (a
\n“RENEWAL NOTICE”) of its unconditional exercise of a Renewal Option not later
\nthan one year prior to the expiration of the Term or the previous Renewal
\nTerm. Tenant’s failure for any reason whatsoever, whether or not within
\nTenant’s control, to timely deliver a Renewal Notice to Landlord shall
\nconstitute Tenant’s irrevocable election not to exercise such Renewal Option
\nand its irrevocable waiver and release thereof, and shall automatically and
\nwithout any notice or any grace or cure period result in the permanent and
\ncomplete expiration, lapsing and termination of such Renewal Option. The
\nFixed Rent payable for and in any Renewal Term shall be agreed to by the
\nparties prior to commencement of the particular Renewal Term; provided,
\nhowever, that if the parties are unable to reach agreement as to the amount
\nof such Fixed Rent, the parties shall submit the matter to binding
\narbitration pursuant to the provisions of SECTION 45.11, provided, however,
\nthat the amount of the annual Fixed Rent payable for and in any Renewal Term
\nshall be equal to the sum of (i) that amount which, if paid annually
\nthroughout that particular Renewal Term (without regard to any further
\nrenewals or extensions), in equal monthly installments on the first day of
\neach month of such Renewal Term, would be sufficient fully and completely to
\namortize the Total Construction Cost for any buildings, improvements,
\nrehabilitation, renovation or other work (if any) which Landlord performs,
\nconstructs or installs for or in connection with such Renewal (“NEW LANDLORD
\nIMPROVEMENTS”) and also to provide Landlord with a fair market return on its
\ninvestment in or relating to such New Landlord Improvements, plus (ii)
\nwhichever of the following Tenant, in its discretion, specifies in its notice
\nof exercise of such Option (and if Tenant fails to specify either of the
\nfollowing in its notice of election, then the annual Fixed Rent shall be that
\nspecified in the following clause (A)): (A) 95% of the Fair Annual Rental
\nAmount (defined hereinbelow) for the Premises (in their condition as in
\neffect on the first day of the Renewal Term but without taking into
\nconsideration any New Landlord Improvements) as of the first day of the
\nRenewal Term; or (B) for each year of the first five years of the Renewal
\nTerm an amount equal to 110% of the annual Fixed Rent as in effect on the day
\nimmediately preceding the commencement of such Renewal Term, and for each
\nyear of the second five years of such Renewal Term an amount equal to 110% of
\nthe annual Fixed Rent as in effect during the first five years of such
\nRenewal Term. The decision of the arbitrators as to the amount of the annual
\nFixed Rent for any Renewal Term shall be final, conclusive and binding on the
\nparties; provided, however, that Tenant may terminate the Lease on the
\nexpiration of the Term (or the expiration of the first Renewal Term, if
\napplicable) by giving Landlord written notice to the effect that Tenant
\nobjects to the amount of such annual Fixed Rent and has elected to terminate
\nthe Lease as of the end of the Term (or the Final Renewal Term, if
\napplicable); such notice <\/p>\n
86<\/p>\n
must be given by Tenant to Landlord, not later than seven months before the
\nexpiration of the Term (or the first Renewal Term, if applicable), except
\nthat if the arbitrators’ decision has not been rendered by that date, Tenant
\nmay deliver such Notice to Landlord not later than 30 days after the
\narbitrators’ decision is rendered. “FAIR ANNUAL RENTAL AMOUNT” shall mean, as
\nof any time, the market rental rate per annum (I.E., the amount of rent
\npayable each year) prevailing at that time for a new lease having a term
\nsubstantially equal to the Renewal Term to which such Fair Annual Rental
\nAmount is then being applied, with a reputable, fully creditworthy tenant for
\na comparable building located within a high-quality, comparable industrial
\npark in the greater Jacksonville, Florida metropolitan area, taking into
\naccount all relevant factors (including, without limitation, increases in
\nrent over time in such other comparable leases).<\/p>\n
ARTICLE 47
\n [INTENTIONALLY OMITTED]<\/p>\n
ARTICLE 48
\n LANDLORD DEFAULTS<\/p>\n
SECTION 48.1 LANDLORD DEFAULTS. The occurrence of any one or more of
\nthe following shall be a “LANDLORD DEFAULT” hereunder:<\/p>\n
(a) If Landlord shall fail to pay when due and payable any
\nsum owed by Landlord to Tenant under this Lease, and such failure shall
\ncontinue for a period of ten days after notice of such default is given to
\nLandlord by Tenant;<\/p>\n
(b) If Landlord shall fail to pay when due and payable any
\nImpositions (if any) or other amounts which the provisions of this Lease
\nexpressly obligate Landlord to pay to any Person other than Tenant, and such
\nfailure shall continue for a period of 21 days after notice of such default
\nis given to Landlord by Tenant;<\/p>\n
(c) if Landlord shall fail to perform any of its material
\nduties or obligations set out in this Lease (other than those which are the
\nsubject of either of the preceding CLAUSES (a) or (b), inclusive, of this
\nSECTION 48.1) and such failure continues for a period of thirty days after
\nnotice thereof is given by Tenant to Landlord specifying such failure (unless
\nsuch failure requires work to be performed, acts to be done, or conditions to
\nbe removed which cannot, either by their nature or by reason of Unavoidable
\nDelays, reasonably be performed, done or removed, as the case may be, within
\nsuch 30-day period, in which case no Landlord Default shall be deemed to
\nexist so long as Landlord shall have commenced curing the same promptly after
\nreceiving the default notice relating thereto from Tenant and shall
\nthereafter at all times prosecute the same to completion with reasonable
\ndiligence, subject only to Unavoidable Delays).<\/p>\n
SECTION 48.2 TENANT REMEDIES. After the occurrence of a Landlord
\nDefault (and the expiration of the applicable grace or cure period), Tenant
\nshall have the following remedies as its sole and exclusive remedies:<\/p>\n
87<\/p>\n
(a) Tenant may institute a lawsuit for the collection of
\nany amounts or damages which may be due and payable by Landlord to Tenant
\nhereunder for which Landlord may be in default, or (to the extent available
\nunder applicable law and principles of equity) for specific performance by
\nLandlord of (or an injunction to enjoin Landlord to perform) its obligations
\nhereunder, and if as a result of any such lawsuit Tenant is awarded damages
\nagainst Landlord, Tenant may deduct and set off the amount of any such final,
\nunappealable award (and interest thereon at the legal “judgment rate” from
\nthe date of entry of such judgment order) from and against the next
\nsucceeding installment payments of Fixed Rent coming due and payable by
\nTenant to Landlord hereunder, provided, however, that in no event shall the
\namount actually paid by Tenant to Landlord for and on account of Fixed Rent
\nin any month be reduced to less than the total amount of all debt service
\npayments required to be paid by Landlord in such month to Secured Lenders on
\naccount of Secured Loans;<\/p>\n
(b) Tenant may, at its option but without obligation,
\nwithout waiving any claim for damages resulting from such Landlord Default,
\nat any time after giving Landlord at least ten days’ prior notice of its
\nintention to do so, cause such Landlord Default to be cured for the account
\nof Landlord, and any amount paid or any contractual liability incurred by
\nTenant in so doing shall be deemed paid or incurred for the account of
\nLandlord, and Landlord agrees to reimburse Tenant therefor on demand. If
\nLandlord fails to reimburse Tenant upon demand for any amount so paid for the
\naccount of Landlord under this SECTION 48.2(b) within fifteen (15) days after
\nreceipt from Tenant of written notice of claim for such reimbursement
\ntogether with such copies of bills, invoices, or other supporting
\ndocumentation as Landlord may reasonably request, said amount shall accrue
\ninterest at the rate of eight percent (8%) per annum and may be deducted and
\nset off by Tenant from and against the next or succeeding installment
\npayments of Fixed Rent coming due and payable by Tenant to Landlord
\nhereunder; provided, however, that in no event shall the amount actually paid
\nby Tenant to Landlord for and on account of Fixed Rent in any month be
\nreduced to less than the total amount of all debt service payments required
\nto be paid by Landlord in such month to Secured Lenders on account of Secured
\nLoans;<\/p>\n
(c) Tenant shall have such other remedies (if any) as are
\nexpressly provided under the provisions of this Lease.<\/p>\n
Tenant may not under any circumstance terminate, or bring a lawsuit or other
\ncourt action seeking a judicial order for or declaration of the termination
\nof, this Lease for or on account of any Landlord Default.<\/p>\n
ARTICLE 49
\n TITLE INSURANCE<\/p>\n
Tenant may, at its option and at its sole cost and expense, obtain
\nsuch policies of title insurance insuring its leasehold estate and
\nappurtenant easements as Tenant may desire. Landlord will cooperate with
\nTenant’s reasonable requests to assist it in efforts to obtain such title
\ninsurance, <\/p>\n
88<\/p>\n
but Landlord shall not be required to pay or incur any cost, expense,
\nliability or risk in connection therewith.<\/p>\n
89<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
\nof the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
CTC INVESTMENTS LIMITED<\/p>\n
By: Canpartners Realty, Inc.,
\n its general partner<\/p>\n
_____________________________ By:________________________________
\nWitness Name:
\n Title:<\/p>\n
_____________________________
\nWitness<\/p>\n
TENANT:<\/p>\n
SARA LEE CORPORATION<\/p>\n
_____________________________
\nWitness<\/p>\n
By:________________________________
\n_____________________________ Name:
\nWitness Title:<\/p>\n
90<\/p>\n
EXHIBIT A<\/p>\n
DESCRIPTION OF PARCEL A<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY, FLORIDA,
\nBEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.86 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT; THENCE
\nSOUTH 15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH
\n04 DEG. 06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG.
\n00’00” WEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF
\n5.13 FEET TO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN
\nOFFICIAL RECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF
\nSAID DUVAL COUNTY; THENCE DUE WEST A DISTANCE OF 575.0 TO THE POINT OF
\nBEGINNING; THENCE SOUTH 00 DEG. 05’25” EAST AND PARALLEL WITH THE WEST LINE
\nOF SAID OFFICIAL RECORD VOLUME 6690, PAGE 1674, A DISTANCE OF 1020.0 FEET;
\nTHENCE SOUTH 89 DEG. 54’35” WEST A DISTANCE OF 881.43 FEET; THENCE NORTH 07
\nDEG. 09’06” EAST A DISTANCE OF 559.61 FEET TO A POINT; THENCE SOUTH 82 DEG.
\n50’54” EAST A DISTANCE OF 55.0 FEET TO A POINT; THENCE NORTH 10 DEG. 06’45”
\nEAST A DISTANCE OF 290.39 FEET TO A POINT; THENCE NORTH 67 DEG. 06’45” EAST A
\nDISTANCE OF 260.0 FEET TO A POINT; THENCE NORTH 72 DEG. 39’13” EAST A
\nDISTANCE OF 406.10 FEET TO A POINT IN THE WESTERLY RIGHT-OF-WAY LINE OF A
\nPROPOSED 80 FOOT RIGHT-OF-WAY, SAID POINT LYING IN A CURVE SAID SURVEY BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 50.0 FEET, THENCE
\nSOUTHEASTERLY ALONG THE ARC OF SAID CURVE 63.40 FEET, THROUGH A CENTRAL ANGLE
\nOF 72 DEG. 39’13”, A CHORD BEARING OF SOUTH 53 DEG. 40’23” EAST AND A CHORD
\nDISTANCE OF 59.24 FEET TO THE POINT OF TANGENT OF SAID CURVE; THENCE DUE EAST
\nALONG SAID RIGHT-OF-WAY LINE A DISTANCE OF 29.70 FEET TO THE POINT OF
\nBEGINNING;<\/p>\n
BUT EXCEPTING THEREFROM PARCEL B-1 (described on Exhibit D-1 attached to this
\nAgreement).<\/p>\n
EXHIBIT B<\/p>\n
TITLE MATTERS<\/p>\n
1. Unrecorded Preliminary Development Agreement for Jax International
\n Tradeport, dated July 30, 1987 as amended by instrument recorded August 22,
\n 1988 in Official Record Book 6566, page 708, of the current public records
\n of Duval County, Florida.<\/p>\n
2. Resolution No. 88-1223-541 dated and approved December 20, 1988 and
\n recorded December 30, 1988 in Official Record Book 6634, page 1692 and
\n Notice of Adoption recorded January 19, 1989 in Official Record Book 6644,
\n page 922, all of the current public records of Duval County, Florida.<\/p>\n
3. Restrictions, covenants, conditions and easements, which include provisions
\n for a private charge or assessment, as contained in the instrument recorded
\n August 2, 1990 in Official Records Book 6941, page 427 (“INITIAL
\n DECLARATION”), together with the joinder and consent and supplements, as
\n recorded in Official Record Book 6941, page 463, Official Record Book 6941,
\n page 458, Official Record Book 6999, page 2023, Official Record Book 7385,
\n page 1290, Official Record Book 7631, page 1706, Official Records Book
\n 7975, page 558, Official Records Book 7975, page 565, and Official Records
\n Book 8123, Page 2325, all of the Public Records of Duval County, Florida,
\n as amended and recorded against the Premises in the real estate records of
\n Duval County, Florida, from time to time; provided, however, that Landlord
\n will obtain a release from Wilma of its easement rights set forth in the
\n first and second sentences of Article 17 of the Declaration and the option
\n rights and right of first refusal set forth in Articles 18(c)-(e) of the
\n Declaration.<\/p>\n
4. Declaration of Conservation Easement as set forth in instrument recorded
\n December 19, 1989, in Official Records Book 6811, page 827, of the Public
\n Records of Duval County, Florida.<\/p>\n
5. The nature, extent, or existence of riparian rights.<\/p>\n
6. Rights of others to use the waters of any water body extending from the
\n insured land onto other lands.<\/p>\n
7. Easement from Skyland Properties, a Florida general partnership to CTC
\n investments Limited, granting adequate means of ingress and egress to the
\n Parcels, which easement does not or will not interfere with Tenant’s
\n intended use of the Premises.<\/p>\n
8. (a) Governmental police power.<\/p>\n
(b) Any law, ordinance or governmental regulation relating to environmental
\n protection.<\/p>\n
(c) Any law, ordinance or governmental regulation (including but not
\n limited to building and zoning ordinances) restricting or regulating
\n or prohibiting the occupancy, use or enjoyment of the land, or
\n regulating the character, dimensions or location of any improvement
\n now or hereafter erected on the land, or prohibiting a separation in
\n ownership or a change in the dimensions or area of any Parcel.<\/p>\n
(d) Rights of eminent domain.<\/p>\n
(e) Defects, liens, encumbrances, adverse claims or other matters
\n attaching or created subsequent to the Commencement Date unless
\n created, suffered, assumed or agreed to by Landlord, or any person
\n acting, claiming or holding by, through or under Landlord (except
\n Tenant or any Person acting, claiming or holding by, through or under
\n Tenant).<\/p>\n
9. City of Jacksonville Resolutions 87-1009-572, 88-448-463, 88-1223-541 and
\n 91-394-202.<\/p>\n
10. The Jacksonville International Tradeport Development Guidelines as in
\n effect from time to time.<\/p>\n
11. Any matters, encumbrances, claims, charges, exceptions or matters created
\n or suffered, or consented to, by Tenant or any Person acting, claiming or
\n holding by, through or under Tenant.<\/p>\n
12. Taxes and assessments levied or assessed for the first Lease Year or
\n assessed subsequent thereto.<\/p>\n
13. Any Secured Loans, for which the Secured Lender and Tenant have executed a
\n Nondisturbance Agreement as required by Article 30 of the Lease.<\/p>\n
14. Grant of Easement from CTC Investments Limited to the City of Jacksonville,
\n recorded in Official Records Book 8913, page 2357 in the records of Duval
\n County, Florida.<\/p>\n
15. Easement to Jacksonville Electric Authority recorded in Official Records
\n Book 6690, page 1671 in the records of Duval County, Florida.<\/p>\n
16. Allocation of Development Rights for Jacksonville International Tradeport
\n dated November 10, 1994, recorded in Official Records Volume 7975, page 586
\n in the records of Duval County, Florida.<\/p>\n
17. The Declaration of Easements.<\/p>\n
2<\/p>\n
EXHIBIT C<\/p>\n
LEASEHOLD IMPROVEMENT AGREEMENT<\/p>\n
1. PRELIMINARY PLANS. Landlord shall, at Landlord’s expense (as
\nprovided below), cause Stellar Group, Inc. (Stellar Group, Inc., or any other
\narchitect retained by Landlord with respect to the Premises from time to
\ntime, is referred to as the “ARCHITECT”) to prepare a coordination set of
\nplans and specifications for the Initial Building, related improvements and
\nwhatever site work is to be performed or constructed on the Parcels before
\nthe Commencement Date, including grading, paving and drainage plans, utility
\nplans (including electricity, potable water, sanitary and storm water
\nsewerage, and telecommunications, if applicable) and connections of each
\n(“PRELIMINARY PLANS”). The Preliminary Plans shall fully comply with the
\napplicable requirements of all Governmental Authorities and CC&R’s.<\/p>\n
The Preliminary Plans shall be agreed to by both Landlord and Tenant
\nas follows: Landlord shall submit the Preliminary Plans to Tenant on or
\nbefore the seventh day after delivery to Landlord by Tenant of an executed
\nLease. Within seven business days after the completed Preliminary Plans have
\nbeen submitted to Tenant, Tenant agrees to deliver to Architect and Landlord
\nthe Preliminary Plans together with either (i) Tenant’s written approval of
\nsuch Preliminary Plans or (ii) Tenant’s reasonably requested changes to such
\nPreliminary Plans (“REQUESTED CHANGES”) in sufficient detail to permit
\nArchitect to prepare revised drawings. Should Tenant fail to deliver the
\nPreliminary Plans with Tenant’s approval or Requested Changes to Architect
\nand Landlord within said seven-day period, and should such failure continue
\nfor three days after written notice of such failure from Landlord to Tenant,
\nLandlord may construct the Building, related improvements and site
\nimprovements (collectively, the “IMPROVEMENTS”) according to such Preliminary
\nPlans (subject to Tenant’s rights to modify the Preliminary Plans as
\ndescribed in SECTION 2 of this Leasehold Improvement Agreement), and upon
\nSubstantial Completion (as defined herein) thereof, Tenant shall be obligated
\nto take possession of the Premises and the Term of the Lease shall commence.
\nIf Tenant has timely delivered Requested Changes to Landlord and Architect,
\nthen no later than seven business days after receipt by Landlord and
\nArchitect of the Requested Changes from Architect, Landlord shall notify
\nTenant either that Landlord has approved the Requested Changes or that
\nLandlord has disapproved the Requested Changes, in which latter case such
\nnotice shall specify Landlord’s reasons for disapproval. Landlord’s approval
\nof the Requested Changes shall not be unreasonably withheld. If Landlord
\ndisapproves the Requested Changes, then the foregoing submission process
\nshall be repeated until the parties agree on the Preliminary Plans. The
\nPreliminary Plans as approved by the parties pursuant to this SECTION 1 of
\nthis Leasehold Improvement Agreement shall be referred to herein as the
\n“PLANS”; and, upon such approval, the Plans shall be deemed a part of this
\nLeasehold Improvement Agreement. If Tenant and Landlord are unable to agree
\nupon final Plans after three submissions by Landlord to Tenant, then upon the
\nrequest of either party, the parties (and all representatives of such parties
\nneeded to approve the Plans on behalf of such parties) shall personally
\nattend a meeting at which the parties shall use their best efforts to agree
\nupon the Plans.<\/p>\n
2. MODIFICATION TO PLANS. Tenant may, from time to time, modify,
\namend or change the Plans with Landlord’s prior written consent, which
\nconsent shall not be unreasonably withheld, conditioned or delayed, provided
\nthat (i) Tenant provides Landlord and Architect with information regarding
\neach such change in sufficient detail to permit the Architect to prepare
\nworking drawings or change orders reflecting such proposed change and (ii)
\nthe proposed change is consistent with the scope, quality, intent and purpose
\nof the approved Plans. Tenant shall pay Landlord, within 30 days after
\nLandlord’s request for payment, all reasonable costs of every kind
\n(including, without limitation, Architect’s fees, fees of Landlord’s
\nconsultant who reviews such proposed changes for Landlord, and any increase
\nin the Total Construction Cost) resulting from or occasioned by each such
\nproposed or accepted change. No modification, amendment or change to the
\nPlans shall be made unless the same has been certified by the Architect as
\ncomplying with all applicable laws and the CC&R’s.<\/p>\n
3. DISCLAIMER: Landlord hereby acknowledges and agrees that the
\napproval by Tenant of the Plans shall neither constitute nor be construed as
\na certification by Tenant, or any Person claiming or acting by, through or
\nunder Tenant, that the Plans meet or otherwise comply with architectural,
\nengineer, or construction industry standards or applicable buildings codes,
\nlaws, ordinances, rules or regulations of any governmental authority or other
\napplicable agency.<\/p>\n
4. DELAY CAUSED BY TENANT. The Term of the Lease shall commence on
\nthe day (the “COMMENCEMENT DATE”) on which Substantial Completion (as defined
\nherein) occurs; provided, however, that if Landlord shall be actually delayed
\nin substantially completing the Improvements as a result of any one or more
\nof (a) Tenant’s failure to approve, or provide necessary information for, the
\nPlans as and when required hereby, (b) Tenant’s changes (or requests for any
\nchange) to the Plans, or (c) any other act or omission by Tenant or its
\nagents which actually delays the Landlord in completing the Improvements,
\nthen Landlord shall cause the Architect to state in a letter to Landlord and
\nTenant its opinion as to the date on which Substantial Completion would have
\noccurred but for the Tenant-caused delays, which date shall be and shall
\nconstitute the Commence ment Date of the Lease for all purposes, and Tenant’s
\nobligation to commence payment of Fixed Rent for the Premises shall arise as
\nof such date and shall not otherwise be affected or deferred on account of
\nsuch actual delay.<\/p>\n
5. COMMENCEMENT OF CONSTRUCTION. Landlord shall notify Tenant when
\nconstruction of the Initial Building or related improvements or site
\nimprovements has commenced and thereafter will give Tenant monthly
\nconstruction status reports with a projected date of completion. For purposes
\nof this EXHIBIT C, the terms “COMMENCE CONSTRUCTION” and “COMMENCEMENT OF
\nCONSTRUCTION” shall be deemed to mean the pouring of concrete footers for the
\nInitial Building.<\/p>\n
6. ENTRY BY TENANT. Tenant and Tenant’s agents may enter the
\nPremises prior to the Commencement Date under Landlord’s direction and
\nsupervision for purposes of inspecting, measuring, installing or arranging
\nTenant’s Property and otherwise to make the Premises ready for Tenant’s use
\nand occupancy. Such entry prior to the Commencement Date shall constitute a
\nlicense only and not a lease, and such license shall be conditioned upon (and
\nTenant agrees to comply with) <\/p>\n
2<\/p>\n
all of the following: (a) Tenant’s acting and working in harmony and not
\ninterfering with Landlord and Landlord’s agents, contractors, workmen,
\nmechanics and suppliers in being present or doing work on the Premises; (b)
\nTenant’s obtaining in advance Landlord’s approval of all contractors,
\nsubcontractors and suppliers proposed to be used by Tenant, said approval not
\nto be unreasonably withheld or delayed; (c) Tenant’s furnishing Landlord with
\nwritten evidence of such insurance of Tenant, its contractors and
\nsubcontractors as Landlord may reasonably require against liabilities which
\nmay arise out of such entry (including, but not limited to, builder’s risk,
\nliability and workers’ compensation coverage) and (d) Landlord’s
\ndetermination, in the case of each such requested entry by Tenant, that such
\nentry will not interfere in any way with Landlord’s work. Tenant agrees that
\nLandlord shall not be liable in any way for any injury, loss or damage which
\nmay occur to any of Tenant’s Property placed or installations made on the
\nPremises prior to the Commencement Date, the same being at Tenant’s sole
\nrisk, and Tenant agrees to protect, defend, indemnify and save harmless
\nLandlord from and against all losses, claims, liabilities, costs, damages,
\nand injuries of any and every kind whatsoever that may result from any such
\nentry by Tenant (including, without limitation, damage to the Improvements,
\nfees and expenses arising out of or connected with the activities of Tenant
\nor its agents, contractors, subcontractors, suppliers or workmen in or about
\nthe Premises, and losses, claims, liabilities, costs, damages, damage to the
\nImprovements, fees and expenses related to environmental matters and
\nHazardous Materials). Except for the indemnity set forth above, Tenant shall
\nnot be obligated to pay to Landlord, nor shall Landlord be entitled to charge
\nTenant, Fixed Rent or any other amounts which may otherwise be due and
\npayable under this Lease by virtue of the exercise by Tenant of the rights
\nand privileges herein.<\/p>\n
7. CORRECTION. Landlord agrees to cause to be promptly corrected any
\nmaterial deficiencies in the work, materials, or elements of the work which
\ndo not comply with the requirements of the Plans, which are promptly called
\nto its attention during construction by any Governmental Authority or
\nTenant’s “CONSTRUCTION REPRESENTATIVE” (who Tenant shall have designated as
\nits construction representative in a written notice to Landlord within five
\ndays after commencement of construction) prior to or at the inspection
\ndescribed in SECTION 11 of this Leasehold Improvement Agreement.<\/p>\n
8. DELIVERY DATE. Landlord shall cause Substantial Completion to
\noccur on or before the date (the “DELIVERY DATE”) which is 290 days after the
\nlast to occur of (i) delivery to Landlord by Tenant of an executed Lease,
\n(ii) the date on which the Landlord and the Tenant have approved the
\nPreliminary Plans such that they constitute the “Plans” as provided
\nhereinabove, (iii) the date on which all necessary Approvals of the Plans
\nhave been obtained from the Jacksonville International Tradeport, and a
\nbuilding permit based on the Plans has been issued, and (iv) approval by the
\nTenant (which approval the Tenant agrees will not be unreasonably withheld,
\ndelayed or conditioned) of the Landlord’s estimate of total construction
\ncosts for the Addition, to be furnished by the Landlord to the Tenant after
\nthe Plans have been approved by all necessary persons); provided, however,
\nthat if Substantial Completion has not occurred by the Delivery Date, the
\nDelivery Date shall be extended for an additional 10 days, provided further,
\nthat and the Delivery Date shall be further extended for actual delays
\n(collectively, “EXTENSION DELAYS”) caused by (a) Unavoidable Delay, (b)
\nTenant’s failure to approve the coordination set of plans and specifications
\nas initially submitted to Tenant <\/p>\n
3<\/p>\n
or Tenant’s failure to approve the Plans as resubmitted to Tenant in
\naccordance with SECTION 1 of this Leasehold Improvement Agreement and\/or
\nTenant’s submission of Requested Changes under SECTION 1 of this Leasehold
\nImprovement Agreement, (c) Tenant’s changes (or requests for change) to the
\nPlans or any other Tenant-caused delay described in SECTION 4 of this
\nLeasehold Improvement Agreement, (d) Tenant’s failure to provide necessary
\ninformation as and when required hereby, or (e) any other act of or by Tenant
\nor its agents, representatives, contractors, subcontractors or Persons acting
\nby, through or under Tenant. The Delivery Date shall be extended one day for
\neach day of Extension Delay. Notwithstanding the foregoing, in no event shall
\nthe Delivery Date occur after the date which is 640 days after the date on
\nwhich this Lease is fully executed and delivered by Tenant to Landlord.<\/p>\n
9. FAILURE TO DELIVER INITIAL BUILDING BY DELIVERY DATE. If
\nSubstantial Completion has not occurred by the Delivery Date, as extended, if
\napplicable, an amount of Fixed Rent under the Lease shall be abated in the
\namount of $6,666.67 for each seven-day week after the Delivery Date (prorated
\non a daily basis for a period of less than a 7-day week) that Substantial
\nCompletion has not occurred, such sum to increase by $3,333.33 every 14 full
\ndays (not prorated on a daily basis) thereafter.<\/p>\n
10. SUBSTANTIAL COMPLETION. “SUBSTANTIAL COMPLETION” occurs when all
\nof the following conditions have been satisfied: (a) receipt of a Certificate
\nof Substantial Completion by Architect on AIA Form G704 (or a substantially
\nsimilar form) relating to the construction of the Improve ments; (b) Tenant
\ncan use the Premises for its intended purposes without material interference
\nto Tenant conducting its business activities; (c) Final Inspection has
\noccurred; (d) Tenant, its employees, agents and invitees have ready access
\nto, and parking adjacent to, the Initial Building and the Premises (but not
\nnecessarily on paved surfaces); (e) necessary utilities (not including
\nnatural gas) and plumbing are available (availability through temporary
\nfacilities will be acceptable for this purpose; provided, however, that
\nconnection to permanent facilities will not result in the unavailability or
\ndiscontinuance of such utilities with respect to Tenant’s use of the Premises
\nthereafter) in capacities not less than as set forth in the Plans, are
\nconnected to mains or other appropriate sources, and all utility meters have
\nbeen set and activated; (f) receipt of a certificate from an engineer stating
\nthat no additional easements are required to be granted for the benefit of
\nParcel B in order for Parcel B and the Improvements located thereon to be
\nprovided with access, utility services and drainage, as required by the Lease
\nand this Leasehold Improvement Agreement; and (g) receipt (at Tenant’s sole
\ncost and expense) of an update to the existing commitment for title insurance
\ndated prior to (and as close as is reasonably practical to) the date of
\nSubstantial Completion, showing no exceptions to title affecting the Premises
\n(or interfering with or limiting Tenant’s rights to Parcels A or D) other
\nthan those shown on Exhibit B or those approved or consented to by Tenant. At
\nLandlord’s request, Tenant will execute and deliver to Landlord a written
\nacknowledgment that Substantial Completion has occurred. Acceptance of
\npossession, use or occupancy of the Premises by Tenant shall not be deemed to
\nconstitute a waiver of Landlord’s duties, obligations or warranties expressly
\nset forth in the Lease.<\/p>\n
4<\/p>\n
Landlord shall use reasonable efforts to give Tenant at least
\nfifteen days’ advance notice of the estimated date on which Substantial
\nCompletion is expected to occur and five days’ advance notice of any changes
\nto the estimated Substantial Completion date.<\/p>\n
11. INSPECTION. Upon five days’ written notice from Landlord to
\nTenant, Landlord and Tenant’s Construction Representative (who shall be
\ndeemed to be Tenant’s agent for all purposes of this Leasehold Improvement
\nAgreement) shall jointly inspect the Building and Premises, at which
\ninspection Tenant may have all systems demonstrated, and Tenant (or its
\nConstruction Representa tive) and Landlord shall jointly prepare a punch
\nlist. Said inspection shall occur between one and twenty days prior to the
\nCommencement Date. The punch list shall list incomplete items of construction
\nnecessary adjustments and needed finishing touches. Landlord will cause the
\npunch list items to be completed as soon as reasonably practical after the
\nCommencement Date.<\/p>\n
12. LANDLORD’S INSURANCE. Landlord agrees that during the period of
\nLandlord’s construction of the Improvements, Landlord will obtain and keep in
\nforce, or cause to be obtained or kept in force, at no cost to Tenant,
\nbuilder’s risk insurance, automobile liability insurance and comprehensive
\ngeneral liability insurance against liability for bodily injury and death and
\nproperty damage, in reasonable and customary amounts and forms. Landlord
\nshall also provide or cause to be provided and kept in force workers’
\ncompensation coverage with statutory benefits covering employees of
\nLandlord’s contractor (but not employees of Tenant or Tenant’s contractors)
\nand with such endorsements as may be reasonably requested by Tenant.<\/p>\n
13. COPIES OF PLANS. Upon the Commencement Date, Landlord shall
\ndeliver to Tenant two original “as built” surveys of the Premises, two sets
\nof “as built” plans for the Premises (which plans shall identify the location
\nof all offsite utility, drainage and stormwater retention easements
\nbenefitting the Premises) and all building systems, and shall deliver to
\nTenant one copy (or the original, if required by law to be kept at the
\nPremises) of each of the licenses, permits, governmental approvals,
\nwarranties, guarantees, utility contracts, operating manuals, maintenance
\nmanuals, surveys, plats, engineering reports, environmental reports and soil
\ntests regarding the Premises.<\/p>\n
14. ENVIRONMENTAL REPORT. Tenant may, at its sole cost and expense,
\ncause a “Phase I” environmental report of the Parcels to be done by a
\nreputable and experienced firm of independent environmental consulting
\nengineers at any time before the Commencement Date. Such report shall be
\ncompleted, and a copy to Landlord, thereof (together with a “reliance letter”
\nin customary form addressed to Landlord) delivered not later than the
\nCommencement Date. If such report discloses the existence on the Parcels of a
\nviolation of any Environmental Laws, Landlord will take all reasonable
\nactions (if any) which, in Landlord’s judgment, are appropriate with respect
\nthereto (which may, but need not, include remediation of this violation cited
\nin such report). The existence of any such violation shall not have any
\neffect of any kind whatsoever on whether Substantial Completion, or the
\nCommencement Date, shall be deemed to have occurred.<\/p>\n
5<\/p>\n
EXHIBIT D<\/p>\n
DESCRIPTION OF PARCEL B<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.88 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT; THENCE
\n15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH 04 DEG.
\n06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG. 00’00”
\nWEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF 5.13 FEET
\nTO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN OFFICIAL
\nRECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF SAID DUVAL
\nCOUNTY, SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE SOUTH 00 DEG.
\n05’25” EAST ALONG THE WEST LINE OF LAST MENTIONED LANDS A DISTANCE OF 1019.09
\nFEET; THENCE SOUTH 89 DEG. 54’35” WEST A DISTANCE OF 575.0 FEET; THENCE NORTH
\n00 DEG. 05’25” WEST AND PARALLEL WITH THE WEST LINE OF SAID OFFICIAL RECORDS
\nVOLUME 6690, PAGE 1674 A DISTANCE OF 1020.0 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF A PROPOSED 80 FOOT RIGHT-OF-WAY; THENCE DUE EAST ALONG
\nSAID SOUTHERLY RIGHT-OF-WAY LINE AND THE EASTERLY PROLONGATION THEREOF 575.0
\nFEET TO THE POINT OF BEGINNING.<\/p>\n
EXHIBIT D-1<\/p>\n
DESCRIPTION OF PARCEL B-1<\/p>\n
A portion of Section 25, Township 1 North, Range 26 East, Duval County,
\nFlorida, being more particularly described as follows:<\/p>\n
For a Point of Reference, Commence at the Northeast corner of the Northwest
\n1\/4 of said Section 25; thence South along the East line of said Northwest
\n1\/4, South 00 DEG. 05’11” East, 1655.90 feet to the Southerly right of way
\nline of Tradeport Drive (an 80 foot right of way as now established) and the
\nintersection with a non-tangent curve, said curve being concave to the
\nNortheast and having a radius of 1755.51 feet; thence Northwesterly, along
\nsaid Southerly right of way line, 414.85 feet around the arc of said curve,
\nthrough a central angle of 13 DEG. 32’23”, along a chord bearing North 80
\nDEG. 04’14” West, a distance of 413.88 feet to the centerline of Little Cedar
\nCreek; thence departing from said Southerly right of way line, South 31 DEG.
\n07’08” West, along said centerline, a distance of 172.94 feet to a point;
\nthence South 07 DEG. 16’09” East, a distance of 112.85 feet to a point;
\nthence South 69 DEG. 51’06” East, a distance of 28.00 feet to a point; thence
\nSouth 15 DEG. 04’13” East, a distance of 71.18 feet to a point; thence South
\n04 DEG. 06’33” West, a distance of 86.36 feet to a point; thence South 90
\nDEG. 00’00” West, departing said centerline of Little Cedar Creek, a distance
\nof 5.13 feet to a point on the West line of those certain lands described in
\nOfficial Records Volume 6690, page 1674 of the current Public Records of
\nDuval County; thence along said West line, South 00 DEG. 05’25” East, a
\ndistance of 353.48 feet; thence departing said West line, South 89 DEG.
\n54’35” West, a distance of 575.00 feet to the Point of Beginning;<\/p>\n
From said Point of Beginning, thence South 00 DEG. 05’25” East, and parallel
\nwith said West line, a distance of 539.87 feet; thence South 89 DEG. 54’35”
\nWest, a distance of 22.70 feet; thence North 00 DEG. 05’25” West and parallel
\nwith said West line, a distance of 5.00 feet to the Southeast exterior corner
\nof a concrete tilt-wall building; thence North 00 DEG. 00’34” East, along the
\nEasterly line of said building, a distance of 529.87 feet to the Northeast
\ncorner of said building; thence departing said building line and parallel to
\nsaid West line, North 00 DEG. 05’25” West, a distance of 5.00 feet; thence
\nNorth 89 DEG. 54’35” East, a distance of 21.77 feet to the Point of Beginning.<\/p>\n
Containing 12,005 square feet or 0.28 acres, more or less.<\/p>\n
EXHIBIT E<\/p>\n
DESCRIPTION OF PARCEL C<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.88 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT; THENCE
\nSOUTH 15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH
\n04 DEG. 06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG.
\n00’00” WEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF
\n5.13 FEET TO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN
\nOFFICIAL RECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF
\nSAID DUVAL COUNTY, THENCE DUE WEST A DISTANCE OF 604.70 FEET TO A POINT OF
\nCURVE, SAID CURVE BEING CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 50.0
\nFEET, THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 63.40 FEET, THROUGH A
\nCENTRAL ANGLE OF 72 DEG. 39’13”, A CHORD BEARING OF NORTH 53 DEG. 40’23” WEST
\nAND A CHORD DISTANCE OF 59.24 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 72
\nDEG. 39’13” WEST A DISTANCE OF 406.10 FEET TO A POINT; THENCE SOUTH 67 DEG.
\n06’45” WEST A DISTANCE OF 260.0 FEET TO A POINT; THENCE NORTH 82 DEG. 50’54”
\nWEST A DISTANCE OF 70.0 FEET TO A POINT; THENCE NORTH 07 DEG. 09’06” EAST A
\nDISTANCE OF 160.0 FEET TO A POINT; THENCE NORTH 23 DEG. 13’00” EAST A
\nDISTANCE OF 478.07 FEET TO A POINT; THENCE SOUTH 69 DEG. 42’24” EAST A
\nDISTANCE OF 619.12 FEET TO THE NORTHWESTERLY RIGHT- OF-WAY LINE OF A PROPOSED
\n80 FOOT RIGHT-OF-WAY; THENCE SOUTH 23 DEG. 13’00” WEST ALONG SAID PROPOSED
\nNORTHWESTERLY RIGHT-OF-WAY LINE 100.00 FEET TO THE POINT OF CURVE OF SAID
\nPROPOSED RIGHT-OF-WAY LINE, SAID CURVE BEING CONCAVE TO THE NORTHWEST AND
\nHAVING A RADIUS OF 25.0 FEET, THENCE SOUTHWESTERLY ALONG THE ARC OF SAID
\nCURVE 23.18 FEET, THROUGH A CENTRAL ANGLE OF 53 DEG. 07’48”, A CHORD BEARING
\nOF SOUTH 49 DEG. 46’54” WEST AND A <\/p>\n
CHORD DISTANCE OF 22.36 FEET TO THE POINT OF REVERSE CURVE OF SAID PROPOSED
\nRIGHT-OF-WAY LINE, SAID REVERSE CURVE BEING CONCAVE TO THE SOUTHEAST AND
\nHAVING A RADIUS OF 50.0 FEET, THENCE SOUTHWESTERLY ALONG THE ARC OF SAID
\nCURVE 81.76 FEET, THROUGH A CENTRAL ANGLE OF 93 DEG. 41’36”, A CHORD BEARING
\nOF SOUTH 29 DEG. 30’01” WEST AND A CHORD DISTANCE OF 72.95 FEET TO THE POINT
\nOF BEGINNING.<\/p>\n
2<\/p>\n
EXHIBIT F<\/p>\n
[INTENTIONALLY OMITTED]<\/p>\n
1<\/p>\n
EXHIBIT G<\/p>\n
DESCRIPTION OF PARCEL D<\/p>\n
A PORTION OF SECTION 25, TOWNSHIP 1 NORTH, RANGE 26 EAST, DUVAL COUNTY,
\nFLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:<\/p>\n
FOR A POINT OF REFERENCE, COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
\n1\/4 OF SAID SECTION 25; THENCE SOUTH ALONG THE EAST LINE OF SAID NORTHWEST
\n1\/4, SOUTH 00 DEG. 05’11” EAST, A DISTANCE OF 1655.90 FEET TO THE SOUTHERLY
\nRIGHT-OF-WAY LINE OF TRADEPORT DRIVE (A 80 FOOT RIGHT-OF-WAY, AS NOW
\nESTABLISHED) AND THE INTERSECTION WITH A NONTANGENT CURVE, SAID CURVE BEING
\nCONCAVE TO THE NORTHEAST, AND HAVING A RADIUS OF 1755.51 FEET, THENCE
\nNORTHWESTERLY, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 414.85 FEET AROUND THE
\nARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 13 DEG. 32’23”, ALONG A CHORD,
\nBEARING NORTH 80 DEG. 04’14” WEST A DISTANCE OF 413.88 FEET TO THE CENTERLINE
\nOF LITTLE CEDAR CREEK; THENCE DEPARTING FROM SAID SOUTHERLY RIGHT-OF-WAY
\nLINE, SOUTH 31 DEG. 07’08” WEST, ALONG SAID CENTERLINE, A DISTANCE OF 172.94
\nFEET TO A POINT; THENCE SOUTH 07 DEG. 16’09” EAST A DISTANCE OF 112.85 FEET;
\nTHENCE SOUTH 69 DEG. 51’06” EAST A DISTANCE OF 28.00 FEET TO A POINT, THENCE
\nSOUTH 15 DEG. 04’13” EAST A DISTANCE OF 71.18 FEET TO A POINT; THENCE SOUTH
\n04 DEG. 06’33” WEST A DISTANCE OF 86.36 FEET TO A POINT; THENCE SOUTH 90 DEG.
\n00’00” WEST DEPARTING SAID CENTERLINE OF LITTLE CEDAR CREEK A DISTANCE OF
\n5.13 FEET TO A POINT ON THE WEST LINE OF THOSE CERTAIN LANDS DESCRIBED IN
\nOFFICIAL RECORDS VOLUME 6690, PAGE 1674, OF THE CURRENT PUBLIC RECORDS OF
\nSAID DUVAL COUNTY; THENCE SOUTH 00 DEG. 05’25” EAST ALONG THE WEST LINE OF
\nLAST MENTIONED LANDS A DISTANCE OF 1019.09 FEET TO THE POINT OF BEGINNING;
\nTHENCE CONTINUE SOUTH 00 DEG. 05’25” EAST ALONG SAID WEST LINE A DISTANCE OF
\n116.88 FEET TO THE SOUTHWEST CORNER OF SAID LANDS; THENCE SOUTH 02 DEG.
\n41’27” WEST A DISTANCE OF 110.13 FEET TO THE NORTHERLY RIGHT-OF-WAY LINE OF A
\nPROPOSED 80 FOOT RIGHT-OF-WAY; THENCE ALONG SAID PROPOSED NORTHERLY
\nRIGHT-OF-WAY LINE SOUTH, 89 DEG. 54’35” WEST A DISTANCE OF 133.21 FEET TO THE
\nPOINT OF CURVE OF SAID PROPOSED RIGHT-OF- WAY, SAID CURVE BEING CONCAVE TO
\nTHE SOUTHEAST AND HAVING A RADIUS OF 815.0 FEET; THENCE SOUTHWESTERLY ALONG
\nTHE ARC OF SAID CURVE 362.17 FEET, THROUGH A CENTRAL ANGLE OF 25 DEG. 27’40’,
\nALONG A CHORD BEARING OF SOUTH 77 DEG. 10’45” WEST A CHORD DISTANCE OF 359.20
\nFEET TO THE POINT OF REVERSE CURVE IN SAID PROPOSED NORTHERLY RIGHT-OF-WAY
\nLINE, SAID REVERSE CURVE BEING CONCAVE TO THE NORTHWEST AND HAVING A RADIUS
\nOF 560.0 FEET, THENCE ALONG THE ARC OF SAID CURVE 319.63 FEET, THROUGH A
\nCENTRAL ANGLE OF 32 DEG. 42’10”, ALONG A CHORD BEARING OF SOUTH 80 DEG.
\n48’01” WEST A CHORD DISTANCE OF 315.32 FEET TO THE POINT OF TANGENT OF SAID
\nCURVE; THENCE <\/p>\n
CONTINUE ALONG SAID PROPOSED NORTHERLY RIGHT-OF-WAY LINE, NORTH 82 DEG.
\n50’54” WEST A DISTANCE OF 695.80 FEET; THENCE DEPARTING FROM SAID PROPOSED
\nNORTHERLY RIGHT-OF-WAY LINE AND RUN THROUGH AN EXISTING LAKE THE FOLLOWING
\nDESCRIBED COURSE; NORTH 07 DEG. 09’06” EAST A DISTANCE OF 270.39 FEET; THENCE
\nNORTH 89 DEG. 54″35′ EAST A DISTANCE OF 1456.43 FEET TO THE POINT OF
\nBEGINNING.<\/p>\n
2<\/p>\n
EXHIBIT H<\/p>\n
VENDORS’ WARRANTIES – INITIAL BUILDING<\/p>\n
\n\n————————————————————————– ————————————–
\n Warranty Extended Warranties\/Cost
\n————————————————————————– ————————————–
\nDescription Duration Description Cost
\n———– ——– ———– —-
\n <\/p>\nSTRUCTURAL 4 years Not avaliable
\n Includes framing, slab, walls, foundation, masonry
\n Includes all parts and labor
\n Slab warranty limited to materials and workmanship
\n and floor joints\/floor joint filler shall be maintained
\n failure to maintain floor joints\/floor joint filler
\n shall void the warranty for the slab<\/p>\n
ROOF 15 years Not available
\n Includes parts and labor<\/p>\n
HVAC 1 year Additional 1 year $13,475
\n Includes parts and labor parts and labor
\n Extended 5 year warranty on compressors
\n would remain in effect<\/p>\n
PLUMBING 2 years Not available
\n Includes parts and labor<\/p>\n
SPRINKLERS 2 years Not available
\n Includes sprinkler piping, sprinkler heads
\n Minor repair of sprinkler heads and alarm bells
\n under normal conditions<\/p>\n
Second year of warranty contingent upon existence of
\n 2 year maintenance agreement with Delta Fire
\nSprinklers, Inc.<\/p>\n
ELECTRICAL 1 year Additional 1 year $20,000
\n Includes parts and labor parts and labor<\/p>\n
———————————————————– ————– ———————— ————-
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT I<\/p>\n
CONFIDENTIALITY AGREEMENT<\/p>\n
THIS CONFIDENTIALITY AGREEMENT is made as of _________________, 19___,
\nby and between _______________________ (“Viewing Party”) and SARA LEE
\nCORPORATION, a Maryland corporation (“Tenant”).<\/p>\n
W I T N E S S E T H<\/p>\n
WHEREAS, CTC INVESTMENTS, LTD., a Florida limited partnership
\n(“Landlord”), and Tenant have entered into a certain Lease dated as of
\n__________, 1998 (“Lease”) relating to certain property situated in the
\nJacksonville International Tradeport, Jacksonville, Florida (“Premises”);<\/p>\n
WHEREAS, the Lease provides that Landlord and persons specifically
\nauthorized by Landlord shall have the right to enter the Premises at any
\nreasonable time with reasonable notice to show the Premises to prospective
\npurchasers, tenants and secured lenders (“Viewing Parties”), provided that
\nthe Viewing Parties agree to respect the confidentiality of proprietary or
\nconfidential matters relating to Tenant or the Premises which are disclosed
\nto them when they are on the Premises exercising the right of entry provided
\nin the Lease (“Confidential Information”).<\/p>\n
NOW, THEREFORE, it is hereby mutually covenanted and agreed by and
\nbetween the parties hereto as hereinafter set forth.<\/p>\n
Section 1. Viewing Party agrees to respect the confidentiality of
\nConfidential Information. [Insert this sentence in Agreement signed by
\nLandlord: Landlord also agrees that it will not cause any Viewing Party to
\nenter within and view the Premises without obtaining from such Viewing Party
\na confidentiality agreement substantially in the form of this Agreement.]
\nViewing Party agrees that it will not disclose any Confidential Information
\nrelating to the design, manufacture or distribution of Tenant’s products. The
\nundertakings concerning nondisclosure set out in this Section 1 do not apply
\nto (i) any information in the public domain, (ii) any information obtained
\nfrom any source other than from Viewing Party’s personal entry into the
\nPremises, or (iii) any information disclosed pursuant to any applicable law
\nor any order or formal written request of any court or governmental agency.<\/p>\n
Section 2. The undertakings set out herein concerning nondisclosure
\napply, with respect to any Confidential Information obtained from any
\nparticular entry onto the Premises, for a period of two years after such
\nentry.<\/p>\n
Section 3. In the event of a dispute hereunder in the enforcement of the
\nterms of this Confidentiality Agreement, the prevailing party shall be
\nentitled to recover its reasonable attorneys fees and costs from the
\nnon-prevailing party.<\/p>\n
Section 4. This Agreement shall be governed by, and construed in
\naccordance with, the laws of the State of Florida.<\/p>\n
Section 5. This Confidentiality Agreement shall be binding upon and
\ninure to the benefit of the parties hereto and their respective successors
\nand assigns.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Confidentiality
\nAgreement as of the date first above written.<\/p>\n
VIEWING PARTY<\/p>\n
———————————–<\/p>\n
By:
\n ——————————–<\/p>\n
TENANT<\/p>\n
SARA LEE CORPORATION
\n a Maryland corporation<\/p>\n
By:
\n ——————————–<\/p>\n
——————————–
\n Print Name
\n Its___________________ President<\/p>\n
2<\/p>\n
EXHIBIT J<\/p>\n
[INTENTIONALLY OMITTED.]<\/p>\n
EXHIBIT K<\/p>\n
ESTOPPEL LETTER<\/p>\n
[Date]<\/p>\n
[Name of Lender]
\n[Address of Lender]<\/p>\n
Ladies and Gentlemen:<\/p>\n
Sara Lee Corporation, a Maryland corporation (“Tenant”), as tenant
\nunder that certain Agreement of Lease dated ____________, 1998 (the “Lease”)
\nwith CTC Investments Limited, a Florida limited partnership (“Landlord”), as
\nlandlord, has been advised that Landlord is obtaining a construction loan
\n(the “Loan”) in the principal amount of $___________ from __________________
\n(“Lender”), which Loan will be used to fund the costs of acquisition of the
\nLand and construction of the Buildings which will comprise the Premises demised
\nTenant under the Lease. Tenant hereby certifies to Lender, as of the date
\nhereof, as follows:<\/p>\n
1. A true and complete copy of the Lease is attached as EXHIBIT A to
\nthis estoppel letter.<\/p>\n
2. Tenant is the sole owner and holder of all rights and interests
\nof tenant under the Lease.<\/p>\n
3. The Lease, together with the ancillary agreement(s) described in
\nEXHIBIT B attached to this estoppel letter, constitutes the entire agreement
\nbetween Landlord and Tenant with respect to the Premises, and has not been
\nchanged, modified, amended or supplemented, or assigned.<\/p>\n
4. Tenant has not sublet any portion of the Premises demised under
\nthe Lease.<\/p>\n
5. The Lease is in full force and effect and Tenant has no actual
\nknowledge of any default (or any event or condition, which, with the giving
\nof notice or passage of time or both would constitute a default) by either
\nparty under the Lease. Tenant has no actual knowledge of any event or
\ncondition which has occurred which would entitle Tenant to any rental
\ndefenses or allow Tenant to abate or offset (in whole or in part) any Fixed
\nRent or other Rental or other charges due and payable by Tenant to Landlord
\nunder the Lease.<\/p>\n
6. Tenant has no right to terminate the Lease or to offset or abate
\nany Fixed Rent or other Rental or other sums due and payable thereunder,
\nexcept as specifically set forth in the Lease.<\/p>\n
7. The Plans required under the Leasehold Improvement Agreement
\nconstituting Exhibit C to the Lease (the “Leasehold Improvement Agreement”)
\nhave been prepared and approved by Landlord and Tenant, and such Plans are
\nmore particularly described in EXHIBIT C<\/p>\n
[Name of Lender]
\n[Date]
\nPage 2<\/p>\n
attached hereto. As of the date of this estoppel letter, no material changes
\nto the Plans have been contemplated or proposed.<\/p>\n
8. The Commencement Date of the Lease is the earlier of (a) the date
\nof Substantial Completion, and (b) the date Substantial Completion would have
\noccurred but for Tenant-caused delays as evidenced by a letter from the
\nArchitect in accordance with Section 4 of the Leasehold Improvement Agreement.<\/p>\n
9. Subject to extension in accordance with the provisions of the
\nLeasehold Improvement Agreement, the Delivery Date under the Leasehold
\nImprovement Agreement is __________________.<\/p>\n
10. There are no outstanding offsets or credits against, or
\ndeductions from, Tenant’s future Fixed Rent or other Rental obligations under
\nthe Lease (but the Lease does contain provisions for the offset, abatement
\nand reduction of Rental in specified circumstances). Tenant has made no
\nadvance payment of Fixed Rent or other Rental under the Lease.<\/p>\n
11. There are no actions, whether voluntary or otherwise, pending
\nagainst Tenant under any bankruptcy, debtor reorganization, moratorium or
\nsimilar laws of the United States, any state thereof or any other
\njurisdiction.<\/p>\n
All capitalized terms not otherwise specifically defined in this
\nestoppel letter shall have the respective meanings ascribed thereto in the
\nLease.<\/p>\n
Tenant acknowledges that Lender is relying upon this estoppel letter
\nin making the Loan, and that without this estoppel letter Lender would not
\nmake the Loan.<\/p>\n
This estoppel letter shall inure to the benefit of Lender and its
\nsuccessors and assigns, and shall be binding upon Tenant and its
\nrepresentatives, successors and assigns (including, but not limited to, any
\nassignee or sublessee of Tenant under the Lease).<\/p>\n
Very truly yours,<\/p>\n
SARA LEE CORPORATION,
\n a Maryland corporation<\/p>\n
By:
\n ———————-
\n Name:
\n ——————–
\n Title:
\n ——————-<\/p>\n
2<\/p>\n
EXHIBIT L<\/p>\n
Loan No._____________<\/p>\n
INDEMNITY AGREEMENT<\/p>\n
THIS INDEMNITY AGREEMENT (“Agreement”) is entered into as of
\n___________, 199__ by Sara Lee Corporation, a Maryland corporation
\n(“Indemnitor”) in favor of _________________________ (“Lender”).<\/p>\n
RECITALS<\/p>\n
A. Lender is contemporaneously herewith making a $_______ loan (the
\n“Loan”) to CTC Investments Limited, a Florida limited partnership (the
\n“Borrower”) secured or to be secured by a Mortgage, Deed to Secure a Debt or
\nDeed of Trust and Security Agreement from Borrower to Lender (the “Mortgage”)
\non the fee title and\/or leasehold interest in the property described in
\nExhibit A attached hereto (the “Property”), which is also described as the
\nLand in the Lease (as defined herein). All capitalized terms not specifically
\ndefined in this Agreement shall have the same respective meanings as are
\nascribed thereto in the Lease.<\/p>\n
B. Indemnitor and Borrower executed that certain Agreement of Lease
\ndated ____________, 1998, with respect to the Property (the “Lease”).<\/p>\n
C. In order to induce Lender to make the Loan, the undersigned
\nIndemnitor has agreed to execute and deliver this Indemnity Agreement to
\nLender.<\/p>\n
D. Indemnitor has a substantial direct or indirect interest in the
\nProperty, financial or otherwise.<\/p>\n
AGREEMENT<\/p>\n
NOW, THEREFORE, in consideration of the recitals and other good and
\nvaluable consideration, the receipt and sufficiency of which are hereby
\nacknowledged, the Indemnitors hereby agree and covenant for the benefit of
\nLender as follows:<\/p>\n
1. Indemnitor covenants that after the Commencement Date: (a) the
\nProperty shall be maintained free of contamination from any Hazardous
\nSubstances except any which were present on the Property as of the
\nCommencement Date through no fault of Indemnitor or any Person acting or
\nclaiming by, through or under Indemnitor; (b) the Property shall not be used
\nfor the manufacture, storage, generation or disposal of any Hazardous
\nSubstances; (c) Indemnitor shall not be, and shall not permit any assignee or
\nSubtenant to be, involved in operations at or near the Property that could
\nlead to the imposition on Lender of liability, or the creation of a lien on
\nthe<\/p>\n
Property or any assets of Lender, under any Requirements relating to
\nHazardous Substances; and (d) Indemnitor shall not cause or permit to exist
\nor occur any deposit, disposal, discharge, spillage, loss, emission, escape,
\nmigration, seepage or filtration of oil, petroleum, chemical liquids or
\nsolids, liquid or gaseous products, or any Hazardous Substances upon, under,
\nabove, from, or within the Property; provided, however, that Indemnitor may,
\nat Indemnitor’s sole risk, use upon the Property any Hazardous Substances or
\nhazardous materials which are necessary for Indemnitor to carry on, in the
\nordinary course of its business, its presently intended warehouse,
\ndistribution or office uses on the Property so long as Indemnitor complies
\nwith all applicable Environmental Laws and with then-generally-accepted good
\nand prudent business practices relating thereto. (Nothing in the proviso at
\nthe end of the preceding sentence shall be deemed to diminish, restrict,
\nlimit or affect in any way the breadth, generality or scope of Indemnitor’s
\nindemnification or other obligations or undertakings set out in the remainder
\nof this Agreement.)<\/p>\n
2. Except for matters caused by Lender’s or Borrower’s own
\nnegligence or wrongful acts or by the negligence or wrongful acts of any
\nPerson acting or claiming by, through or under Lender or Borrower (for all
\npurposes of this Lease, the phrase “Persons acting or claiming by, through or
\nunder Lender or Borrower”, and any similar phrase, does not include
\nIndemnitor or its assignees, Subtenants, licensees of or under Indemnitor, or
\nPersons acting, claiming or holding by, through or under Indemnitor or its
\nassignees, Subtenants or licensees), Indemnitor hereby agrees to defend,
\nindemnify, and hold Lender harmless from and against any and all losses,
\nliabilities (including, without limitation, strict liability), damages,
\ninjuries, expenses (including, without limitation, attorneys’ fees and
\ndisbursements), costs of any settlement or judgment, and claims of any and
\nevery kind whatsoever paid, incurred or suffered by, or asserted against,
\nLender by any Governmental Authority or other Person for, with respect to, or
\nas a direct or indirect result of, the presence on, within or under, or the
\nescape, seepage, leakage, spillage, discharge, emission, migration or release
\nfrom, the Property of any Hazardous Substance, which conditions did not exist
\non the Property prior to the Commencement Date (including, without
\nlimitation, any losses, liabilities, including strict liability, damages,
\ninjuries expenses, including attorneys’ fees and disbursements, costs of any
\nsettlement or judgment or claims asserted or arising under the Comprehensive
\nEnvironmental Response Compensation and Liability Act, as amended, RCRA, as
\namended, or any federal, state or local so-called “Superfund” or “Superlien”
\nlaws or any other statute, law, ordinance, code, rule, regulation, order or
\ndecree now or hereafter regulating, governing, controlling, relating to, or
\nimposing liability [including, without limitation, strict liability] or
\nstandards of conduct for or concerning any Hazardous Substance
\n[collectively, “Environmental Laws”] and including amounts necessary to pay
\ncosts of investigation and clean-up of Hazardous Substances and toxic
\nsubstances on or affecting the Property).<\/p>\n
3. For purposes hereof, “Hazardous Substances” shall mean and
\ninclude all elements, wastes, materials, substances or compounds which are
\ncontained in the list of hazardous substances adopted by the United States
\nEnvironmental Protection Agency (the “EPA”) or the Florida Department of
\nEnvironmental Protection (the “DEP”) or the list of toxic pollutants
\ndesignated by Congress or the EPA or the DEP or defined by any other Federal,
\nstate or local statute, law, ordinance, code, rule, regulation, order or
\ndecree regulating, relating to, governing or <\/p>\n
2<\/p>\n
imposing liability or standards of conduct concerning any hazardous, toxic or
\ndangerous waste, substance or material as now or at any time hereafter in
\neffect, including, without limitation, asbestos, PCBs, radioactive
\nsubstances, methane, petroleum distillates, compounds and derivatives,
\npetrochemicals, volatile hydrocarbons and industrial solvents.<\/p>\n
4. If either Indemnitor or Lender receives any notice of (a) the
\nhappening of any event involving in any way the presence, spill, release,
\nleak, seepage, discharge or cleanup of any Hazardous Substance on or from the
\nProperty, or (b) any complaint, order, citation or notice with regard to air
\nemissions, water discharges, or any other environmental, health or safety
\nmatter affecting Lender or the Property (an “Environmental Complaint”) from
\nany Person (including without limitation the EPA or the DEP), then such party
\nreceiving the notice shall immediately notify the other party of said notice
\nand shall promptly send such other party a complete copy of any such notice
\nthat is in written form.<\/p>\n
5. Unless caused by Lender’s or Borrower’s own negligence or
\nwrongful acts or by the negligence or wrongful acts of any Person acting or
\nclaiming by, through or under Lender or Borrower (for all purposes of this
\nLease, the phrase “Persons acting or claiming by, through or under Lender or
\nBorrower”, and any similar phrase, does not include Indemnitor or any
\nassignees, Subtenants or licensees of or under Indemnitor or any other Person
\nacting, claiming or holding by, through or under Indemnitor or its assignees,
\nSubtenants or licensees) and except for Hazardous Substances that were
\npresent on the Property on the Commencement Date through no fault of
\nIndemnitor or any Person acting or claiming by, through or under Indemnitor,
\nIndemnitor shall bear the sole and complete responsibility and expense to
\nclean up, remove, resolve or minimize the impact of, or otherwise deal with,
\nany and all such Hazardous Substances and Environmental Complaints following
\nreceipt of any notice from any Person (including without limitation the EPA
\nor the DEP) asserting the existence of any Hazardous Substance, or an
\nEnvironmental Complaint, pertaining to the Property or any part thereof which
\ncould result in an order, judgment, complaint, decree, suit or other action
\nagainst Lender or Indemnitor or Indemnitor’s representatives, agents or
\nSubtenants or which, in the sole opinion of Lender, could impair the value of
\nLender’s interest in the Property or the Property. With respect to all
\nmatters described above, Indemnitor shall take all action necessary to obtain
\na closure letter or other final, favorable written disposition of the matter
\nfrom the applicable Governmental Authorities and shall deliver said letter or
\nother written disposition to Lender. If Indemnitor fails to take any action
\nrequired herein, Borrower shall have the right (but not the obligation),
\nafter providing Indemnitor with notice and a reasonable opportunity to cure,
\nto enter into the Property or to take such other actions as it deems
\nnecessary or advisable so to clean up, remove, resolve, minimize the impact
\nof, or otherwise deal with any such Hazardous Substances or Environmental
\nComplaint, in which event all costs and expenses incurred by Borrower in the
\nexercise of any such rights shall be paid and reimbursed to Borrower by
\nIndemnitor upon demand.<\/p>\n
6. (a) Promptly after its receipt of any report of or
\nconcerning the environmental condition of, or the presence or absence of
\nHazardous Substances at, upon or under, or the<\/p>\n
3<\/p>\n
compliance or noncompliance with any Environmental Laws of, the Property or
\nany part thereof, Indemnitor will deliver a complete copy of such report to
\nLender.<\/p>\n
(b) Lender shall have the right from time to time, in its
\nreasonable discretion, to cause to be performed an environmental audit and,
\nif deemed necessary by Lender, an environmental risk assessment, concerning
\nor relating to the Property (or any portions thereof) and the hazardous waste
\nmanagement practices of and the hazardous waste disposal sites used by
\nIndemnitor and any other users of the Property; and Indemnitor grants to
\nLender, its respective agents, contractors and designees an irrevocable
\nlicense to enter upon the Property at any reasonable time or times for
\npurposes of performing the same; provided, however, that prior to exercising
\nits inspection rights Lender shall first execute and deliver a
\nConfidentiality Agreement in substantially the form attached to the Lease as
\nExhibit I as to non-environmental matters. All costs and expenses incurred by
\nLender in the exercise of such rights shall be payable by Borrower.<\/p>\n
7. Except as provided herein, the obligations and liability of
\nIndemnitor under this Agreement shall in no way be waived, released,
\ndischarged, reduced, mitigated or otherwise affected by:<\/p>\n
(a) The repayment of the Loan and\/or the satisfaction or
\nrelease of the Mortgage; or<\/p>\n
(b) Any neglect, delay or forbearance of Lender in
\ndemanding, requiring or enforcing payment of the indemnity due hereunder; or<\/p>\n
(c) The receivership, bankruptcy, insolvency or dissolution
\nof any Indemnitor or any affiliate; or<\/p>\n
(d) Any sale or refinancing or other transactions related
\nto the Property, by Borrower, by Lender or otherwise; or<\/p>\n
(e) Indemnitor’s transferring or divesting any or all of
\nits estate, right, title or interest in or to the Property, any interest
\ntherein or any interest in any entity.<\/p>\n
8. Without limiting the other provisions hereof, if Lender acquires
\nlegal possession and\/or title to the Property and Lender becomes aware of any
\ncondition involving a violation of an Environmental Law relating to the
\nProperty, whether or not a claim is asserted against Lender, Lender shall
\nhave the right, after giving Indemnitor detailed written notice specifying
\nthe violation of Environmental Law, Lender’s proposed course of action to
\ncure such violation and a reasonable opportunity to comment thereon and make
\nrecommendations and suggestions to Lender concerning same (including, without
\nlimitation, reasons why no remediation activities are appropriate or
\nsuggestions for different remediation activities) to take such action as
\nLender reasonably shall deem necessary, in Lender’s discretion, to cure the
\nviolation of the Environmental Law, including, without limitation, cleanup of
\nsuch condition and Indemnitor shall be liable to <\/p>\n
4<\/p>\n
Lender in accordance with the terms hereof for all liabilities, costs and
\nexpenses incurred by Lender in effecting such cure.<\/p>\n
9. No action or proceeding brought or instituted under this
\nIndemnity Agreement and no recovery made as a result thereon shall be a bar
\nor defense to any further action or proceeding under this Indemnity Agreement.<\/p>\n
10. The covenants, agreements, terms, and conditions of this
\nAgreement including the indemnity contained herein shall extend to and be
\nbinding upon the Indemnitor, its successors and assigns, and shall inure to
\nthe benefit of and may be enforced by Lender and its successors and assigns.<\/p>\n
11. Each provision of this Agreement shall be interpreted in such
\nmanner as to be effective and valid under applicable law, but if any
\nprovision of this Agreement shall be prohibited, invalid or ineffective under
\napplicable law, such provision shall be ineffective only to the extent of
\nsuch prohibition or invalidity, without invalidating the remainder of such
\nprovision or the remaining provisions of this Agreement.<\/p>\n
12. No consent by Indemnitor shall be required for any assignment or
\nreassignment of the rights of Lender hereunder to one or more purchasers of
\nthe Loan or the Property, or any portion thereof.<\/p>\n
13. With respect to any potential indemnified claim hereunder,
\nIndemnitor may elect, by written notice to Lender, to assume the defense of
\nany such claim by using counsel selected by Indemnitor acting reasonably. If
\nIndemnitor assumes such defense and admits that the claim is subject to
\nIndemnitor’s indemnity obligations hereunder, then: (i) the claim shall be
\ndeemed to be a claim indemnified by Indemnitor; (ii) Lender may, at its
\nelection, participate in the defense of the claim, but Indemnitor will have
\nno obligation to pay for any defense costs, including attorneys’ fees of
\nLender after Lender assumes to participate in the defense of the claim; and
\n(iii) Indemnitor will have the right, without cost to Lender, to compromise
\nand settle any claim on any basis believed reasonable, in good faith by
\nIndemnitor, and Lender shall be bound thereby, provided Lender is released in
\nsuch settlement.<\/p>\n
If after receiving a notice of a potential indemnified claim
\nhereunder, if Indemnitor either does not assume the defense thereof, or does
\nso under a reservation of rights without admitting that the claim is subject
\nto Indemnitor’s indemnity obligations hereunder, then: (i) the claim shall
\nnot be deemed to be a claim indemnified by the Indemnitor and neither party
\nshall have waived any rights to assert that the claim is or is not properly a
\nclaim subject to Indemnitor’s indemnity obligations; (ii) both Indemnitor and
\nLender may, at their individual election, participate in the defense of such
\nclaim but Indemnitor will remain responsible for the cost of defense,
\nincluding reasonable attorneys’ fees of Lender should the claim ultimately be
\ndetermined to be subject to Indemnitor’s indemnity obligations; and (iii)
\nLender shall have the right to compromise and settle the claim on any basis
\nbelieved reasonable, in good faith, by Lender, and Indemnitor will be bound <\/p>\n
5<\/p>\n
thereby should the claim ultimately be determined to be subject to
\nIndemnitor’s indemnity obligations hereunder.<\/p>\n
14. In the event of any litigation between the parties hereto to
\nenforce any of the provisions of this Agreement or any right of either party
\nhereto, the unsuccessful party to such litigation agrees to pay to the
\nsuccessful party all costs and expenses, including reasonable attorneys’
\nfees, whether or not incurred in trial or an appeal, incurred therein by the
\nsuccessful party, all of which may be included in and as a part of the
\njudgment rendered in such litigation.<\/p>\n
15. Indemnitor’s obligation and liabilities under this Agreement
\nshall survive the Expiration Date for any indemnified matter that first
\noccurred or accrued after the Commencement Date but before the Expiration
\nDate; however, Indemnitor shall have no obligation or liability of any kind
\nto Lender for or concerning any Hazardous Substance, violation of any
\nEnvironmental Law, Environmental Complaint, or any environmental condition or
\nmatter with respect to the Property or this Agreement that (i) first
\noccurred, accrued or came into existence before the Commencement Date or
\nafter the Expiration Date, (ii) first occurred, accrued or came into
\nexistence on or after the date on which Indemnitor’s liability under the
\nLease is terminated pursuant to the provisions of Article 10 of the Lease, or
\n(iii) was caused by the acts of Borrower or by the acts of any Person acting,
\nholding or claiming by, through or under Borrower.<\/p>\n
IN WITNESS WHEREOF, the undersigned Indemnitor and Lender have
\nexecuted this Agreement as of the day and year first above written.<\/p>\n
Indemnitor<\/p>\n
SARA LEE CORPORATION,
\n a Maryland corporation<\/p>\n
By
\n ———————————
\n Its
\n ——————————–<\/p>\n
————————————–,
\n a _________ corporation<\/p>\n
By
\n ———————————<\/p>\n
Its
\n ——————————–<\/p>\n
6<\/p>\n
EXHIBIT M<\/p>\n
ILLUSTRATIVE AMORTIZATION SCHEDULE
\n (MORTGAGE AMORTIZATION SCHEDULE : 16 YEAR TERM – 8.5% INTEREST RATE)<\/p>\n
\n\n PRINCIPAL
\n MONTH OUTSTANDING
\n ———- ——————-
\n
\n COMMENCEMENT DATE == > 0 10,000,000
\n 1 9,975,384
\n 2 9,950,594
\n 3 9,925,628
\n 4 9,900,486
\n 5 9,875,165
\n 6 9,849,665
\n 7 9,823,984
\n 8 9,798,122
\n 9 9,772,076
\n 10 9,745,846
\n 11 9,719,430
\n 12 9,692,827*
\n 24 9,358,502*
\n 36 8,994,627*
\n 48 8,598,588*
\n 60 8,167,542*
\n 72 7,698,397*
\n 84 7,187,783*
\n 96 6,632,035*
\n 108 6,027,164*
\n 120 5,368,829*
\n 132 4,652,302*
\n 144 3,872,441*
\n 156 3,023,647*
\n 168 2,099,828*
\n 180 1,094,352*
\n 192 0
\n ========== ===================
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n————————<\/p>\n
* MONTHLY PRINCIPAL REDUCTION WILL OCCUR IN ACCORDANCE WITH THE PRINCIPLES
\nUNDERLYING THE FOREGOING IN THE MONTHS BETWEEN THOSE EXPLICITLY INDICATED IN
\nTHE ABOVE TABLE.<\/p>\n
EXHIBIT N<\/p>\n
PRELIMINARY SITE DRAWING<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7133],"corporate_contracts_industries":[9401],"corporate_contracts_types":[9587,9579],"class_list":["post-41924","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-coach-inc","corporate_contracts_industries-consumer__leather","corporate_contracts_types-land__fl","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41924","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=41924"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41924"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41924"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41924"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}