GROUND LEASE
THIS GROUND LEASE dated the ____ day
of November, 2003, by and between COMPANY A, of 1234 Any Street, CITY, STATE 12345 (hereinafter referred to as
“Landlord”), and COMPANY B, of 1234 Any Avenue, CITY,
STATE 99999 (hereinafter referred to as “Tenant”).
WITNESSETH:
In consideration of the good and valuable consideration,
and the mutual covenants contained herein, and intending to be legally bound
hereby, Landlord and Tenant hereby agree with each other as follows:
Section
1. Premises:
(a) Exclusive
Rights: Landlord hereby leases
and lets to Tenant, and Tenant hereby takes and hires from Landlord, upon and
subject to the terms, conditions, covenants and provisions hereof, all that
certain tract, piece or parcel of land, situated in the City of CITY, more particularly described on Exhibit “A”
attached hereto and made part of this Ground Lease, together with any and all
improvements, appurtenances, rights, privileges and easements benefiting,
belonging or pertaining thereto, and any right, title and interest of Landlord
in and to any land lying in the bed of any street, road or highway (opened or
proposed) to the center line thereof, in front of or adjoining said tract,
piece or parcel of land and together with any strips and gores relating to said
tract, piece or parcel of land (all the foregoing hereinafter sometimes
referred to as the “Demised Premises” and sometimes referred to as the
“Premises”).
Section
2. Term:
(a)
The term of this lease shall be for one hundred
(100) years, commencing (a) no later than ninety (90) days after permits are
received by Tenant and licenses received to operate Tenant’s business for its
intended purpose, (b) or upon the date that Tenant opens for business, (c) in
no event later than three hundred sixty (360) days after lease execution date
and ending one hundred (100) years thereafter, whichever is sooner. As used herein the expression “term hereof”
refers to such initial term and to any renewal thereof. Notwithstanding the foregoing, commencement
of the term hereof shall be delayed until all contingencies set forth in
Section 39 are fulfilled.
(b)
Tenant and
Landlord shall have the option to extend the Lease upon agreement in writing.
Section 3. Rent:
(a)
The initial annual rental rate shall be Six
Thousand Dollars ($6,000), payable as outlined in 3(c) below (“Basic Rent”).
(b)
Basic Rent shall escalate ten percent (10%)
every ten (10) years, throughout the primary term of the Lease and any duly
exercised options to extend.
(c)
All Basic Rent per annum shall be payable by Tenant
in equal monthly installments of Five Hundred Dollars ($500) on the first day
of each and every calendar month during the term of this Lease in advance
without deduction or set-off and shall be payable at the office of Landlord
first above set forth or at such other place of which Landlord shall have given
Tenant written notice at least thirty (30) days in advance. If the term of this Lease shall commence on a
day other than the first day of a calendar month, the period from the
Commencement Date to the first day of the next month shall be added to the term
and Tenant shall pay rent therefore on a per diem basis. Rent for the first full month and any partial
month shall be paid on or before the Commencement Date.
(d)
Hereinafter, the term “Rent” shall be deemed to
include the basic rent and the additional rent, if any, payable by Tenant to
Landlord hereunder.
(e)
Any amount due from Tenant to Landlord hereunder
which is not paid within ten (10) days after the same is due shall bear
interest at four percent (4%) per annum in excess of the prime rate as
published in The Wall Street Journal from time to time, but not in excess of
the legal rate.
(f)
Tenant shall also pay with each payment of basic
rent and other payments hereunder all sales tax or similar excise tax upon or
with respect to the rent and other payments payable hereunder.
Section 4. Rent to be Included to Landlord:
It is the intention of the parties that the rent payable
hereunder shall be absolutely net to Landlord, so that this Lease shall yield
to Landlord the net annual rent specified herein during the term of this Lease,
and that all costs, expenses and obligations and every kind and nature
whatsoever relating to the Demised Premises shall be paid by Tenant.
Section 5. Use of Premises:
(a)
The Demised Premises may be used by Tenant for
any legitimate business use, including but not limited to, the operation of a
head injury clinic.
(b)
Tenant shall not cause or permit the use,
generation, storage or disposal of any substance, materials or waste subject to
regulation under any federal, state or local laws from time to time in effect
concerning hazardous, toxic or radioactive materials, except in accordance with
all applicable laws, relegations and permits.
In no event shall Tenant utilize above or below ground storage tanks for
storing any hazardous, toxic or radioactive materials.
Section 6. Taxes and Utility Expenses:
(a) (i) From and after the Commencement Date,
Tenant shall, during the term of this Lease, as additional rent, pay and
discharge punctually, as and when the same shall become due and payable, all
taxes, special and general assessments, water rents, rates and charges, sewer
rents and other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary (excluding STATE Single Business
Tax) (hereinafter referred to as the “Taxes”), and each and every installment
thereof which shall or may during the term of this Lease be charged, levied,
laid, assessed, imposed, become due and payable, or liens upon or for or with
respect to the Demised Premises or any part thereof, or any buildings,
appurtenances or equipment owned by Tenant thereon or therein or any part
thereof, together with all interest and penalties thereon, under or by virtue
of all present or future laws, ordinances, requirements, orders, directives,
rules or relegations of the Federal, State, County, Town or City Governments
and of all other governmental authorities whatsoever (all of which shall also
be included in the term “Taxes” as heretofore defined) and all sewer rents and
charges for water, steam, heat, gas, hot water, electricity, light and power,
and other service or services, furnished to the Demised Premises or the
occupants thereof during the term of this Lease.
In
the event that any present or future enactment of STATE or any political
subdivision thereof or any governmental authority having jurisdiction there
over imposes a tax and/or assessment of any kind or nature upon, against or
with respect to the rents payable by Tenant to Landlord hereunder, or with
respect to the Landlord’s, or the individuals’ or entities’ which form the
Landlord herein, ownership of the land and buildings comprising the Demised
Premises, and/or impose a tax or surcharge of any kind or nature, upon,
against, or with respect to the parking areas or number of parking spaces upon
the Demised Premises, either in addition to or by way of substitution for all
or any part of the taxes and assessments levied or assessed against the Demised
Premises, the same shall be deemed Taxes hereunder and Tenant shall pay the
same.
(ii)
To the extent that the same may be permitted by
law, Tenant or its designees shall have the right to apply for the conversion
of any assessment for local improvements assessed during the term of this Lease
in order to cause the same to be payable in annual installments, and upon such
conversion Tenant shall pay and discharge punctually said installments as they
shall become due and payable during the term of this Lease from and after the Commencement
Date. Landlord agrees to permit the
application for the foregoing conversion to be filed in Landlord’s name, if
necessary, and shall execute any and all documents requested by Tenant to
accomplish the foregoing result.
(iii)
Tenant shall be deemed to have complied with the
covenants of this Section 6(a) if payment of such Taxes shall have been made
either within any period allowed by law or by the governmental authority
imposing the same during which payment is permitted without penalty or interest
or before the same shall become a lien upon the Demised Premises, and the
Tenant shall promptly deliver to Landlord satisfactory evidence of such
payment.
(b) All such Taxes, including assessments
which have been converted into installments as set forth in Section 6(a)
hereof, which shall become payable during each of the calendar or fiscal tax
years, as the case may be, in which the Commencement Date occurs and in which
the term of this Lease terminates, shall be apportioned prorata between
Landlord and Tenant in accordance with the respective portions of such year
before and after the Commencement Date and before and after the termination
date, as the case may be.
(c) (i) Tenant or its designees shall have the
right to contest or review all such Taxes by legal proceedings, or such other
manner as it may deem suitable (which, if instituted, Tenant or its designees
shall conduct promptly as its own cost and expense, and free of any expense to
Landlord, and, if necessary, in the name of and with the cooperation of
Landlord and Landlord shall execute all documents necessary to accomplish the
foregoing). Notwithstanding the
foregoing, Tenant shall promptly pay all such Taxes if at any time the Demised
Premises or any part thereof shall then be immediately subject to forfeiture,
or if Landlord shall be subject to any criminal liability, arising out of the
non-payment thereof.
(ii)
The legal proceeding referred to in Section
6(c)(i) hereof shall include appropriate certiorari proceedings and appeals
from orders therein and appeals from any judgments, decrees or orders. In the event of any reduction, cancellation
or discharge, Tenant shall pay the amount finally levied or assessed against
the Demised Premises or adjudicated to be due and payable on, any such contested
Taxes.
(d) Landlord covenants and agrees that if
there shall be any refunds or rebates on account of the Taxes paid by Tenant
under the provision of this Lease, such refund or rebate shall belong to
Tenant. Landlord will, upon the request
of Tenant, sign any receipts which may be necessary to secure the payment of
any such refund or rebate, and will pay over to Tenant such refund or rebate as
received by Landlord.
(e) Nothing
herein or in this Lease otherwise contained shall require or be I construed to
require Tenant to pay any inheritance, estate, succession, transfer, gift,
franchise, income or profit taxes, that are or may be imposed upon Landlord,
its successors or assigns.
Section 7. Improvements,
Repairs, Additions, Replacements:
(a)
Tenant shall
have the right, at its own cost and expense, to construct or remove any part or
all of the Demised Premises, at any time and from time to time, sucl11
buildings, parking areas, driveways, walks, gardens and other similar and
dissimilar improvements as Tenant shall from time to time determine, provided
that the same shall be in compliance with all then applicable building and
other governmental codes and ordinances, including, without limitation, the
zoning, building and health codes of the City of CITY,
STATE. Landlord shall approve building
plans, specs, site plan and elevation prior to construction, such approval
shall not be unreasonably withheld or delayed.
In the event Landlord does not respond within fifteen (15) business days
of certified receipt of said plans, Tenant's plans shall be deemed as
approved. The exceptions to this
approval requirement are exterior alterations, which are a part of Tenant’s
national or regional remodeling program and involve changes which are
substantially uniform on similar facilities of Tenant.
(b)
Tenant shall, at
all times during the term of this Lease, and at its own cost and expense, keep
and maintain or cause to be kept and maintained in repair and good condition,
all buildings and improvements at any time erected on the Demised Premises, and
shall use all reasonable precaution to prevent waste, damage or injury. Landlord shall not be required to furnish any
services or facilities or to make any improvements, repairs or alterations in
or to the Demised Premises during the term of this Lease.
(c)
Until the
expiration or sooner termination of this Lease (subject, however, to the rights
of the holder of any Leasehold Mortgage, as hereinafter defined, to obtain a
new lease as set forth herein) title to any building, or buildings or
improvements situated or erected on the Demised Premises and the building
equipment and other items installed thereon and any alteration, change or
addition thereto shall remain solely with Tenant; and Tenant alone shall be
entitled to deduct all depreciation on Tenant's income tax returns for any such
building or buildings, building equipment and/or other items, improvements,
additions, changes or alterations constructed by Tenant.
(d) On
the last day or sooner termination of the term of this Lease, Tenant shall quit
and surrender the Demised Premises, and the buildings and permanent
improvements then thereon, broom clean and in good condition and repair
(ordinary wear and tear excepted).
Section 8. Requirements of Public Authority:
During the term of this lease, Tenant shall, at its
own cost and expense, promptly observe and comply with all present and future
laws, ordinances, requirements, orders, directives, rules and regulations of
the Federal, State, County, Town, Village and City Governments and of all other
governmental authorities affecting the Demised Premises or appurtenances
thereto or any part thereof whether the same are in force at the commencement
of the term of this Lease or any in the future be passed, enacted or directed,
and Tenant shall pay all costs, expenses, liabilities, losses, damages, fines,
penalties, claims, and demands, including reasonable counsel fees, that may in
any manner arise out of or be imposed because of the failure of Tenant to
comply with the covenants of this Section 8.
Section
9. Covenant Against Liens:
If, because of any act or omission of Tenant, any
construction or mechanic’s lien or other lien, charge or order for the payment
of money shall be filed against Landlord or any portion on of the Demised
Premises, Tenant shall, at its own cost and expense, cause the same to be
discharged of record or bonded within thirty (30) days after written notice
from Landlord to Tenant of the filing thereof; and Tenant shall indemnify and
save harmless Landlord against and from all costs, liabilities, suits,
penalties, claims and demands, including reasonable counsel fees, resulting
there from.
Section
10. Access to Premises:
Landlord or Landlord's agents and designees shall
have the right, but not the obligation, to enter upon the Demised Premises,
excluding the interior of the building, at all reasonable times to examine same
and to exhibit the Demised Premises to perspective purchaser and perspective
tenants with twenty-four (24) hour prior written notice, but in the latter case
only during the last six (6) months of the term of this Lease.
Section 11. Assignment and
Subletting:
(a)
Tenant shall
have the right to assign this Lease or sublease the Premises without consent of
the Landlord. If Tenant assigns this Lease,
Tenant shall remain jointly and severally liable.
(b)
Tenant my
mortgage, encumber, pledge or assign as security its right, title and interest
in this Lease of the Premises to a Lender.
Tenant shall give to Landlord a notice containing the name and address
of the Lender. Whenever the Landlord
gives any notice to Tenant pursuant to the Lease, Landlord shall also give to
Lender a duplicate copy of such notice at such address in the manner required
of notices hereunder. If the notice
given by Landlord is a notice of default by Tenant, Lender shall have
reasonable time of not less than thirty (30) days to cure any default not
timely cured by Tenant.
If Lender timely cures any default not timely cured
by Tenant, Lender shall be entitled to assume Tenant’s interests and
obligations under this Lease immediately upon such cure and for the remainder
of the term, together with any option, renewal or extension rights set forth in
this Lease; provided that Lender shall not acquire any franchise rights
pertaining to the Premises. Landlord
hereby consents to the assignment by Tenant of its rights to use the Premises
under the Lease and all of Tenant’s
personal property and trade fixtures located at the Premises
(collateral) to Lender.
Landlord further consents tot eh execution and
performance by Tenant of any recordable leasehold mortgage, deed of trust,
collateral assignment of lease and any other documentation reasonably required
by Lender. Landlord agrees that none of
the collateral located on the Premises, notwithstanding the manner in which any
of the Collateral may be affixed to the Premises, shall be deemed to be
fixtures or constitute part of the Premises.
Landlord agrees not to assert any statutory, consensual or other liens
against the Collateral. If Tenant
defaults on its obligations to Lender, and as a result, Lender undertakes to
enforce its security interest in the Collateral, Landlord will permit Lender
and its agents to enter upon and remain on the Premises to remove or otherwise
dispose of the Collateral; provided (a) Landlord receives the rental and other
amounts due under the Lease for the period of time Lender uses the Premises and
(b) any damages to the Premises caused by removal of the Collateral are
repaired.
Section
12. Signs:
Tenant, at
its sole costs, shall have the right to install, maintain and replace in, on or
over or in front of the Demised Premises or in any part thereof such signs and
advertising matter as Tenant may desire, and Tenant shall comply with any
applicable requirements of governmental authorities having jurisdiction and
shall obtain any necessary permits for such purpose.
Section 13. Indemnification of Landlord:
Subject to Paragraph 14.10 below,
Tenant agrees to and shall indemnify, defend and hold Landlord harmless form
and against any and all claims, demands, losses, damages, costs and expenses
(including attorneys’ fees and expenses) or death of or injury to any person or
damage to any property whatsoever arising out of Tenant’s negligent acts or
omissions, or relating the Tenant’s breach or default under this Lease,
including, but not limited to, Tenant’s breach of Paragraph 21 below or
Tenant’s use or occupancy of the Premises or caused by Tenant or its agents,
employees or invitees. Landlord shall
not be liable to Tenant for any damage by or from any act or negligence of any
co-tenant or other occupant.
Section
14. Tenant’s Insurance:
At all times during the term of this
Lease, Tenant shall, at its sole expense, procure and maintain or self insure,
for the following types of insurance coverage:
(a) General
Insurance Requirements: Tenant shall
maintain at Tenant’s expense the insurance described in this Lease.
(b) Casualty
Insurance: Tenant shall
maintain special form casualty insurance with endorsements for all perils,
covering Tenant improvements and personal property in the Premises in an amount
not less than ninety percent (90%) of the replacement value. The replacement value shall be determined by
Tenant’s insurer.
(c) Liability Insurance: Tenant shall maintain commercial general
liability insurance with combined single
limit coverage in the amount of Two Million and 00/100 ($2,000,000.00)
Dollars. Landlord shall be named as an
additional insured. The liability
insurance shall contain clauses or endorsements for cross-liability and for
assumed contractual liability for liabilities assumed by Tenant under this
Lease, and shall provide coverage against claims for bodily injury, personal
injury, death and property damage occurring on the Premises.
(d) Employer's
Liability/Workers' Compensation: Employer's
Liability insurance as required by law and Workers' Compensation insurance
providing statutory state benefits for all persons employed by Tenant in
connection with the Premises as required by applicable law.
Section
15. Waiver of Subrogation:
All insurance policies
carried by either party and/or any permitted sublessee of Tenant covering the
Demised Premises, including but not limited to contents, fire and casualty
insurance, shall expressly waive any right on the part of the insurer against
Landlord and Tenant. The parties hereto
agree that such policies will include such waiver clause or endorsement so long
as the same shall be obtainable. If
extra cost shall be chargeable thereof, Tenant shall pay the same.
Section
16.
This section intentionally left blank.
Section
17. Eminent Domain:
Condemnation means any impairment of Tenant's use of
the Premises by act or omission of government authority, including
without limitation, a change in applicable law, exercise of the power of
eminent domain, or exercise of other government authority such as alteration of
a public street directly serving the Premises.
A voluntary sale by Landlord to any party having the power to effect a
Condemnation either under a threat of exercise of that power, or while
proceedings are pending, shall be deemed to be a Condemnation. No such sale shall be made without the prior
consent of Tenant. Landlord shall notify
Tenant within fifteen (15) days after Landlord learns of any proposed or
pending Condemnation. The proceeds,
including any judgment and interest, arising from any Condemnation shall be
deemed the Condemnation Award. Whether
this Lease is canceled or not canceled upon a Condemnation, the rights of
Landlord and Tenant shall be governed by this Section.
Any
Award shall be allocated and paid to Landlord and Tenant in accordance with the
laws of the state in which the Premises are located.
If,
in Tenant's reasonable judgment, a Condemnation renders the Premises unstable
for Tenant's continued operation Tenant may, by notice to Landlord, cancel this
Lease. It will be reasonable for Tenant
to determine the Premises are unsuitable for Tenant's continued operation after
a Condemnation if there is a reduction in the amount of business revenue
received at the Premises following the Condemnation, or if any of the Tenant
Improvements such as the building, access, drive through, or parking facilities
are altered.
Section
18. Landlord’s Mortgages:
(a)
Landlord shall
have the right to mortgage its interest in the Demised Premises at any time and
from time to time during the term.
(b)
If the Demised
Premises is subject to a mortgage or deed of trust as of such date, upon or
about the Commencement Date, Landlord shall obtain from the holder of such
mortgage or deed of trust a non-disturbance agreement in form and substance
reasonably satisfactory to Tenant.
Notwithstanding the foregoing, at the request of such holder, this Lease
may be made prior and superior to such mortgage or deed of trust.
(c)
This Lease shall
be subordinate to any first mortgage or deed of trust that may be placed upon
the Demised Premises after the Commencement Date and to any and all advances to
be made hereunder, and to the interest thereon, and all renewals, replacements,
and extensions thereof; provided that as a condition to such subordination, the
holder of such mortgage or deed of trust shall execute and deliver to Tenant a
non-disturbance agreement in form and substance reasonably satisfactory to
Tenant. Notwithstanding the foregoing,
at the request of such holder, this Lease may be made prior to such mortgage or
deed of trust.
Section 19. Quiet Enjoyment:
Tenant,
upon paying the rent and additional rent and all other sums and charges to be
paid by it as herein provided, and observing and keeping all covenants,
warranties, agreements and conditions of this Lease on its part to be kept,
shall quietly have and enjoy the Demised Premises during the term of this
Lease, without hindrance or molestation by anyone claiming by, through or under
Landlord.
Section 20. Events of Tenant Default:
(a)
If one or more
of the following events ("Event of Default) occurs, such occurrence
constitutes a breach of this Lease by Tenant:
(i) Abandonment/Vacation: Tenant abandons or vacates the Premises or
ceases business operations for a period exceeding ninety (90) days, or
(ii) Rent: Tenant fails to pay any monthly Basic Rent or
Operating Expenses Rent, if applicable, as and when the same becomes due and
payable, and such failure continues for more than one (1) day; or
(iii) Other
Sums: Tenant fails to pay any other
sum or charge payable by Tenant hereunder as and when the same becomes due and
payable, and such failure continues for more than thirty (30) days after,
or
(iv) Other
Provisions: Tenant fails to
perform or observe any other agreement, condition or provision of this Lease to
be performed or observed by Tenant as and when performance or observance is due, and such failure
continues for more than thirty (30) days after Landlord gives written notice
thereof to Tenant, or if the default cannot be cured within said thirty (30)
day period and Tenant fails promptly to commence with due diligence and
dispatch the curing of such default or, having so commenced, thereafter fails
to prosecute or complete with due diligence and patch the curing of such
default; or
(v) Insolvency: Tenant (a) files or consents by answer or
otherwise to the filing against it of a petition for relief or
reorganization or arrangement or any other competition in bankruptcy or
liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction; (b) makes an assignment for the benefit of its creditors; (c)
consents to the appointment of a custodian, receiver, trustee or other officer
with similar powers of itself or of any substantial part of its property; or
(d) takes action for the purpose of any of the foregoing; or
(vi) Receiver: A court or governmental authority of
competent jurisdiction, without consent by Tenant, enters an order appointing a
custodian, receiver,
trustee or other officer with similar powers with respect to it or with respect
to any substantial power of its
property, or constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy or insolvency law
of any jurisdiction, or ordering the dissolution, winding up, or liquidation of
Tenant, or if
any such petition is filed against Tenant and such petition is not dismissed
within sixty (60) days; or
(vii) Attachments: This Lease or any estate of Tenant hereunder
is levied upon under any attachment or execution and such attachment or
execution is not vacated within sixty (60) days; or
(viii) Assignment/Sublease: Tenant assigns this lease or subleases
all or any portion of the Premises without adhering to the conditions set forth
in Section 11 of this Lease or Landlord's prior written consent.
(b) Default
by Landlord. Landlord
will be in default under this Lease if Landlord fails to; (a) commence performance
of any obligation of Landlord within thirty (30) days after receipt of notice
from Tenant stating the obligation which Landlord has failed to perform and
demanding performance and (b) diligently pursue completion of the required
performance, then Tenant, in addition to all other remedies at law or in
equity, shall have the right to pay, perform obligation, Landlord shall, within
thirty (30) days from the date of Tenant’s demand, reimburse Tenant in the full
amount expended by Tenant in connection therewith. If Landlord fails to reimburse Tenant within
such time, Tenant may offset the amount of such reimbursement against Rent.
Section 21. Remedies of Landlord on Default:
(a) Termination: In the event of any breach of this Lease by
Tenant, Landlord may, at its option, terminate the Lease and repossess the
Premises pursuant to the laws of the State in which the Tenant is located and
recover from Tenant as damages:
(i)
the unpaid rent
and other amounts due at the time of termination plus interest thereon at the
maximum lawful rate per annum from the due date until paid;
(ii)
the present
value of the balance of the rent for the remainder the term after termination
less the present value of the fair market value rental of the Premises for said
period (both determined by applying a discount rate of one and one half percent
(1.5%) below the Wall Street Journal Prime Rate);
and
(iii)
any other amount
necessary to compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligation under the Lease or which in the
ordinary course of things would be likely to result there from, including,
without limitation, the cost of recovering the Premises.
(b) Landlord's
Options: Landlord may, in the
alternative, (i) continue this Lease in effect, as long as Landlord does not
terminate Tenant's right to possession, and Landlord may enforce all its rights
and remedies under the Lease, including the right to recover the rent as it
becomes due under the Lease; or (ii) terminate Tenant's right of possession
(but not this Lease) and repossess the Premises pursuant to the laws of the
State in which the Tenant is located, without demand or notice of any kind to
Tenant, in which event Landlord may, but shall be under no obligation to do so
(except to the extent required by the laws of the State in which the Tenant is
located), re-let the Premises for the account of Tenant for such rent and upon
such terms as shall be satisfactory to Landlord. For purpose of such re-letting
Landlord is authorized by Tenant to decorate or to make any repairs, changes,
alterations or additions in or to the Premises that may be necessary or
convenient, at Tenant's expense. Tenant
shall also be responsible for rent for the period that the Premises are vacant
and all costs of re-letting, including, without limitation, brokerage
commissions and attorneys' fees. Tenant
shall be liable for any deficiency of such rental below the total rental and
all other payments herein provided for the unexpired balance of the term of
this Lease. If said breach of the Lease
continues, Landlord may, at any time thereafter, elect to terminate the Lease;
or (iii) exercise any and all other rights and remedies available to Landlord
at law or in equity.
Section
22. Waivers:
Failure
of Landlord or Tenant to complain of any act or omission on the part of the
other party no matter how long the same may continue, shall not be deemed to be
a waiver by said party of any of its rights hereunder. No waiver by Landlord or Tenant at any time
express or implied, of any breach of any provision of this Lease shall be
deemed a waiver of a breach of any other provision of this Lease or a consent
to any subsequent breach of the same or any other provision. No acceptance by Landlord of any partial
payment shall constitute an accord or satisfaction but shall only be deemed a
part payment on account.
Section
23. Force Majeure:
Both Landlord and Tenant shall be excused for the
period of any delay in the, performance of any obligations hereunder when
prevented from doing so by cause or causes beyond either Landlord or Tenant's
absolute control which shall include, without limitation, all labor disputes,
civil commotion, civil disorder, riots, terrorist acts, civil disturbances,
war, war-like operations, invasion, rebellion, hostilities, military or usurped
power, sabotage, governmental regulations, orders, moratoriums or controls,
fire or other casualty, inability to obtain any material, services or financing
or Acts of God.
Section
24. Notices:
Every notice, approval, consent or other
communication authorized or required by this Lease shall not be effective
unless same shall be in writing and sent postage prepaid by United States
registered or certified mail, return receipt requested, by recognized overnight
delivery service or by facsimile transmission, directed to the other party at
its address herein above first mentioned, or such other address as either party
may designate by notice given from time to time in accordance with this Section
26. Notices shall be effective upon delivery or refusal of the addressee to
accept delivery.
Section
25. Certificates:
Either party shall, without charge, at any time and
from time to time hereafter, within ten (10) business days after written
request of the other, certify by written instrument duly executed and
acknowledge to any mortgagee or purchaser, or proposed mortgagee or proposed
purchaser, or any other person, firm or corporation specified in such
request: (a) as to whether this Lease
has been supplemented or amended, and if so, the substance and manner of such
supplement or amendment; (b) as to the validity and force and effect of this
Lease, in accordance with its tenor and then constituted; (c) as to the
existence of any default hereunder; (d) as to the existence of any offsets,
counterclaims or defenses thereto on the part of such other party; (e) as to
the commencement and expiration dates of the term of this Lease; and (f) as to
any other matters as may reasonably be so requested. Any such certificate may be relied upon by
the party requesting it and any other person, firm or corporation to whom the
same may be exhibited or delivered, and the contents of such certificate shall
be binding on the party executing same.
Section
26. Governing Law:
This Lease and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the State of STATE.
Section
27. Partial invalidity:
If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstance shall, at any
time or to any extent, be invalid or unenforceable, the remainder of this Lease or the application of
such terms or provision to persons or circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, covenant, condition and provision
of this Lease shall be valid and be enforced to the fullest extent permitted by
law.
Section
28. Short Form Lease:
The
parties will at any time, at the request of either one, promptly execute
duplicate originals of an instrument, in recordable form, which will constitute
a short form of lease, setting forth a description of the Demised Premises, the
term of this Lease and any other portions thereof, excepting the rental
provisions as either party may request.
Section
29. Interpretation:
Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders, and visa versa, as the context shall require. The section
headings used herein are for reference and convenience only, and shall not
enter into the interpretation hereof.
This Lease may be executed in several counterparts, each of which shall
be an
original
but all of which shall constitute one and the same instrument. The term “Landlord" whenever used herein
shall mean only the owner at the time of Landlord's interest herein, and upon
any sale or assignment of the interest of Landlord, its successors in interest
and/or assigns shall, during the term of their ownership of their respective
estates herein, be deemed to be Landlord.
Section
30. Entire Agreement:
No oral statement or prior written matter shall have
any force or effect. Tenant agrees that
it is not relying on any representations or agreements other than those
contained in this Lease. This agreement
shall not be modified or cancelled by writing subscribed by all parties.
Section
31. Parties:
Except as herein otherwise expressly provided, the
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and their respective heirs,
successors, administrators and assigns.
Section
32. Holding Over:
Any holding over after the expiration of the term
hereof with the consent of the Landlord, shall be construed to be a tenancy
from month to month at a minimum rent of one hundred fifty percent (150%) of
the basic rent effective for the final year or partial year preceding
expiration of the term, together with an amount estimated by Landlord for the
monthly additional rent charges payable pursuant to this Lease, and shall
otherwise be on the same terms and conditions as herein specified so far as
applicable. Any holding over without
Landlord's consent shall entitle Landlord to re-enter the Demised Premises as
provided in Section 22 hereof.
Section
33. Transfer of Landlord’s Interest:
In the event of any transfer or transfers of
Landlord's interest in the Demised Premises by Landlord or any individual who
is a landlord hereunder, the transferor shall be automatically relieved of any
and all obligations on the part of Landlord accruing from and after the date of
such transfer.
Section
34. Liability of Landlord:
If Landlord shall fail to perform any covenant, term
or condition of this Lease upon Landlord's part to be performed, and if as a
consequence of such default Tenant shall recover a money judgment
against Landlord, such Judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in the Demised Premises and out of rents
or other income from such property receivable by Landlord, or out of the
consideration received by Landlord from the sale or other disposition of all or
any part of Landlord's rights, title, and. interest on the Demised Premises,
subject, nevertheless, to the rights of Landlord's mortgagee, and neither
Landlord nor any of the parties comprising the Landlord herein shall be liable
for any deficiency.
Section
35. Accord and Satisfaction:
Payment by Tenant or receipt by Landlord of a lesser
amount than the rents herein stipulated may be, at Landlord's sole option,
deemed to be on account of the earliest due stipulated rents, or deemed to be on account of rent owing
for the current period only.
Section
36. Hazardous Substances:
(a) Definitions: For the purposes of this Agreement, the
following terms have the following meanings:
(i)
"Environmental
Law" means any law, statute, ordinance or regulation pertaining to health,
industrial hygiene or the environment including, without limitation, CERCLA
(Comprehensive Environmental Response, Compensation and Liability Act of 1980),
RCRA (Resources Conservation and Recovery Act of 1976) and SARA (Superfund
Amendments and Reauthorization Act of 1986).
(ii)
"Hazardous
Substance” means any substance, material or waste which is or becomes
designated, classified or regulated as being "toxic" or
“hazardous" or a "pollutant" or which is or becomes similarly
designated, classified or regulated, under any Environmental law, including
asbestos, petroleum and petroleum products.
However, Tenant shall not be responsible for any pre-existing
conditions.
(b) Hazardous
Substances Discovered During Inspection Period:
If conditions suggesting the presence of Hazardous
Substances are discovered during the Inspection Period, Tenant may cancel this
Lease. Such inspection period shall not
exceed ninety (90) days following execution of this Lease. If after such tests are completed, Tenant cannot
determine whether such Hazardous Substances constitute contamination, or if
Remediation is required, then Tenant may cancel this Lease. If conditions suggesting the presence of
Hazardous Substances are discovered on the Demised Premises after the Inspection
Period due to no fault of the Tenant, and such Hazardous Substances have been
known to be caused by another party, Tenant may cancel this Lease. Contamination shall mean the presence of
Hazardous Substances which require Remediation.
Remediation shall mean those steps required by law to
eliminate, remove or otherwise mitigate the presence of Hazardous substances.
(c) Tenant's
Responsibilities: At its own
expense, Tenant will procure, maintain in effect and comply with all conditions
of any and all permits, licenses and other governmental and regulatory
approvals required for Tenant's use of the Premises. Tenant will not cause or permit any Hazardous
Substance to be brought upon, kept or used in or about the Premises by Tenant,
its agents, employees, contractors or invitees without the prior written
consent of Landlord. Tenant will cause
any and all Hazardous Substances brought upon the Premises by Tenant to be
removed from the Premises and transported solely by duly licensed haulers to
duly licensed facilities for final disposal of such materials and wastes. Tenant will, in all respects, handle, treat,
deal with and manage any and all Hazardous Substances in, on, under or about
the Premises in total conformity with all applicable Environmental laws and
prudent industry practices regarding management of such Hazardous
Substances. Upon expiration or earlier
termination of the term of the Lease, Tenant will cause all Hazardous
Substances placed on, under or about the Premises by Tenant or at Tenant's
direction to be removed and transported for use, storage or disposal in
accordance and compliance with all applicable Environmental Laws. Tenant will not take any remedial action in
response to the presence of any Hazardous Substances in or about the Premises,
nor enter into any settlement agreement, consent decree or other compromise in
respect to any claims relating to any Hazardous Substances in any way connected
with the Premises without first notifying Landlord of Tenant's intention to do
so and affording Landlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interests with respect thereto.
(d) Indemnification: If the Premises becomes contaminated in
any manner for which Tenant is legally liable or otherwise become affected by
any release or discharge of a Hazardous Substance, Tenant shall immediately
notify Landlord of the release or discharge of the Hazardous Substance, and
Tenant shall indemnify, defend and hold harmless Landlord, from and against any and all claims,
damages, fines, judgments, penalties, costs, liabilities or losses (including, without
limitation, a decrease in value of the Premises, damages caused by loss or
restriction of rentable or usable space,
or any damages caused by adverse impact on marketing of the space, and any and
all sums paid for settlement of claims, attorneys' fees and expenses,
consultant fees and expert fees) arising during or after the term of this Lease and arising as a result of
such contamination, release or discharge.
(e) This
indemnification includes, without limitation, any and all costs incurred
because of any investigation of the site or any cleanup, removal or restoration
mandated by federal, state or local agency or political subdivision.
Section
37. Conditions:
(a)
This Lease is
conditional upon Tenant satisfying and/or waiving each of the following
conditions:
(i)
This Lease is
conditional upon approval by the City of CITY
for proper zoning and any special use permits if required and all other necessary
governmental bodies of Tenant's site plan for the development of the Demised
Premises. Tenant shall have ninety (90)
days from the date of this Lease to satisfy such condition.
(ii)
This Lease is
conditional upon Tenant determining that the environmental condition of the
Demised Premises is satisfactory for its intended use of the Demised Premises.
Tenant shall have thirty.(30) days from the date of this Lease in order to
satisfy such condition.
(iii)
This Lease is
conditional upon receiving all necessary Permits. Permits are all authorizations and approvals
issued by government agencies and necessary for Tenant to install Tenant
Improvements and operate its business on the Premises such as a zoning change,
variance, use permit, environmental law compliance, site plan approval, parking
approval, sign approval, curb cut and other access approval, utility connection
permit and building within ninety (90) days of Lease execution or such
condition shall be waived .
(iv)
Tenant's
obligations hereunder are subject to Tenant receiving full authorization from
its senior management, in its sole and absolute discretion, no later than
ninety (90) days following Lease execution.
Should such authorization not be granted, this Lease shall be null and
void.
(v)
Before Tenant's
receipt of permits, Landlord shall correct all title and access objections of
Tenant, including providing, at Landlord's sole cost and expense.
(b) Landlord
shall cooperate with Tenant in connection with the satisfaction of the
foregoing conditions and Landlord shall join with Tenant to the extent required
in any applications to the City of CITY and any other
governmental bodies. Subject to the
rights of the existing tenant thereof, Tenant shall have the right to enter the
Demised Premises from and after the date of this Lease to investigate the
environmental condition of the Demised Premises, including the right to make or
have made soil and other appropriate tests.
Tenant shall restore any damage to the Demised Premises caused by such
tests. Non-Disturbance Agreements from
the holders of mortgages, deeds of trust or other liens encumbering the
Premises assuring that Tenant's rights under this Lease shall be recognized and
not disturbed upon foreclosure.
(c) If
Tenant fails to give Landlord notice of satisfaction or waiver of any
contingency within ten (10) days after expiration of the applicable contingency
period, the contingency shall be deemed to have been satisfied.
(d) Landlord shall provide evidence of clear title to
this property to be encumbered by the proposed Lease and shall provide upon
written request by Tenant an ALTA Survey and Title Policy for Tenant's review
and approval within thirty {30) days from the date of this lease and Tenant
shall have fifteen (15) days to accept such documents or object to unacceptable
conditions in writing.
Section
38. Landlord’s Sale of the Premises:
If Landlord elects to offer to transfer the Premises by sale or exchange
("Offer"), Landlord shall notify Tenant of the terms of the proposed
Offer. Tenant shall have forty-five (45)
days within which to accept the Offer on all terms stated in the notice to
Tenant or such other terms to which Landlord and Tenant agree. If Tenant fails to accept the Offer within
the forty-five (45) days period, Landlord shall be free to make the Offer
available to others and conclude a sale or exchange on the terms stated in the
offer. If Landlord desires to change a
material term of an Offer, Landlord shall again notify Tenant and Tenant shall,
have forty-five (45) days within which to accept the changed Offer or such other terms
to which Landlord and Tenant agree.
If Landlord transfers the Premises by sale or
exchange, such sale or exchange shall be expressly made subject to this
Lease. Upon such transfer the
transferring Landlord shall be released by Tenant from all its responsibilities
as Landlord which accrue after the date of such transfer. Upon request by the successor Landlord,
Tenant shall attorn to the successor Landlord if the successor agrees in
writing that Tenant’s rights under this Lease shall be recognized and not
disturbed so long as Tenant is not in default.
The following representations and warranties are made
for the benefit of Tenant:
(a)
Landlord represents and warrants that this Lease is binding
on Landlord in accordance with its terms.
(b)
Landlord represents and warrants that Landlord is the fee
owner of the Premises.
(c)
Landlord represents and warrants that Landlord has no
knowledge of (i) enacted, pending or proposed condemnation proceedings or to
other governmental action, (ii) pending or threatened litigation, (iii) pending
or proposed plans to alter access to the Premises, or (iv) the presence on the
Premises of anything dangerous to humans such as Hazardous materials, which
would adversely affect the construction of Tenant Improvements or the operation
of Tenant’s permitted use of the Premises.
Section 39.
This section intentionally left blank.
Section
40. Attorney’s Fees:
If an
action is commenced to enforce any provision of this Agreement, the prevailing
party as determined by final court judgment shall be entitled to recover from
the other party such reasonable attorney’s fees and costs incurred in the
action as the court may award.
IN WITNESS WHEREOF, Landlord and Tenant have executed
this Lease as of the day and year first above written.
LANDLORD TENANT
COMPANY A COMPANY B
By:_______________________________ By:_________________________________
Its:________________________________ Its:_________________________________
