Indiana-Mishawaka-4220 Edison Lakes Parkway Lease - Six Edison Lakes LLC and Quality Dining Inc.
LEASE AGREEMENT
BETWEEN
SIX EDISON LAKES, L.L.C.
AS LANDLORD
AND
QUALITY DINING, INC.,
AS TENANT
LOCATION: 4220 Edison Lakes Parkway
Mishawaka, Indiana
DATED: September 19, 1996
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LEASE AGREEMENT
THIS LEASE, made this 19th day of September, 1996, by and between SIX EDISON
LAKES, L.L.C., an Indiana limited liability company ("Landlord") and QUALITY
DINING, INC., an Indiana Corporation ("Tenant"),
WITNESSETH:
ARTICLE 1. LEASE OF PREMISES
Section 1.1. Lease of Premises. Upon and subject to the terms and conditions
provided herein, Landlord leases to Tenant and Tenant leases from Landlord,
certain space in the office building described below, to be built in Edison
Lakes Corporate Park (the "Park"), St. Joseph County, Indiana, which building
(the "Building") shall be situated on the tract of land described on Exhibit A
attached hereto (the "Land"). The space in the Building leased to Tenant is
identified in Item A of the Basic Lease Provisions (the "Premises").
Section 1.2. Basic Lease Provisions.
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A. Building Address: 4220 Edison Lakes Parkway
Mishawaka, Indiana 46545
The entire Building.
B. Rentable Area of Premises: [See Article 21]
C. Tenant's Share: [See Article 21]
D. Monthly Rent: [See Article 21]
E. Term: Commences on the Commencement Date (as defined in Section 3.1) and
continues for one hundred eighty (180) months from (i) the Commencement
Date if such date is the first day of a calendar month, or (ii) the first
day of the calendar month immediately following the Commencement Date if
such date is not the first day of a calendar month.
F. Estimated Commencement Date: February 1, 1997
G. Broker: Cressy & Everett Commercial Company
H. Permitted Use: General office and test kitchen.
I. Space Plan Approval Date: [September 18, 1996]
J. Address for payments and notices as follows:
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Landlord: Cressy & Everett Management Co.
3930 Edison Lakes Parkway
Mishawaka, Indiana 46545
Tenant: Quality Dining, Inc.
3820 Edison Lakes Parkway
Mishawaka, Indiana 46545
Attention: Daniel B. Fitzpatrick
ARTICLE 2. CONSTRUCTION
Section 2.1. Building. Landlord agrees to construct the Building and the
Common Areas, as hereinafter defined, in accordance with the Plans and
Specifications prepared by The Troyer Group, Inc., dated May 18, 1996 as Project
No. 96078.00. Such construction shall be at the sole cost of Landlord.
Section 2.2. Tenant Finish. Landlord agrees to perform and complete the
tenant finish improvements. The cost of completing tenant finish improvement
items shall be borne by Landlord and Tenant as provided in Article 21. It is
further understood and agreed that in the event Tenant installs a test kitchen
in the Premises, Tenant shall be responsible for any and all costs and expense
associated with installing and maintaining said test kitchen including, but not
limited to, any increase utility charges, insurance premiums, etc.
Section 2.3. Landlord's Warranties. Landlord represents and warrants that
the Building, related common areas shall: (a) be constructed in a good and
workmanlike manner; (b) be constructed with new materials; (c) comply with all
applicable laws, ordinances and codes, including the Americans with Disabilities
Act and all zoning requirements, and (d) be of a quality comparable to first
class office buildings constructed in similar settings in the general area.
Section 2.4. Completion. Landlord shall use reasonable efforts to complete
the Building and Tenant Finish on or before February 1, 1997 ("Completion
Date"), subject to delays caused by Tenant, acts of God, strikes, lockouts
unavailability of materials and other unforeseeable events beyond Landlord's
control ("Excusable Delays"). Prior to the Completion Date, Tenant shall be
permitted access to the entire Premises for purposes of interior decoration,
occupancy and installation of fixtures and other equipment; provided, however,
Tenant's schedule within the Premises shall be communicated to Landlord and the
approval of Landlord or Landlord's project supervisor secured so as not to
interfere with other work of Landlord being carried on at that time within the
Premises; provided, further, that Landlord shall have no responsibility or
liability whatsoever for any loss or damage to any of Tenant's leasehold
improvements, fixtures, equipment or other materials installed or left in the
Premises prior to the Completion Date. Landlord shall provide Tenant with
written notice in the event Landlord has reason to believe that the Building or
Tenant Improvements will not be completed by the Completion Date.
For these purposes, the Building and the Premises shall be considered ready
for Tenant's occupancy when the Landlord delivers to Tenant a copy of an AIA
architect's certificate or comparable certificate of substantial completion
indicating that the Building and the Premises have been completed in
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accordance herewith, subject to "punch-list" items which do not affect Tenant's
access to the Premises, parking or ability to use the Premises to conduct its
normal business operations.
ARTICLE 3. TERM AND POSSESSION
Section 3.1. Term. This term of this Lease shall be the period of time
specified in Item E of the Basic Lease Provisions and shall commence upon the
earlier of (i) the date on which the Premises are first used and occupied by
Tenant's personnel for carrying on the normal functions of its business, or (ii)
the date ten (10) days after the Completion Date. Landlord shall provide
written notice to Tenant of Completion. The date of commencement determined as
provided above is herein called the "Commencement Date." The Commencement Date
shall in no event be postponed by reason of any delay caused by Tenant (for
example Tenant's failure to timely approve or furnish plans or specifications,
make material or color selections or decisions necessary for substantial
completion of such work, or complete Tenant's work). As used in this Lease,
"Term" shall include the original Term and any extension thereof effected in
accordance with an extension option, if any, expressly set forth herein.
Tenant shall be entitled to enter upon the Premises to complete interior
decoration work and to prepare the Premises for its occupancy, provided that (i)
its schedule in so doing shall be communicated to Landlord and the approval of
Landlord secured so as not to interfere with other work of Landlord being
carried on at the time, and (ii) Landlord shall have no responsibility or
liability whatsoever for any loss or damage to any of Tenant's leasehold
improvements, fixtures, equipment or any other materials installed or left in
the Premises prior to the Commencement Date.
Section 3.2. Tenant's Acceptance of the Premises. Upon delivery of
possession of the Premises to Tenant as provided herein, Tenant shall execute
and deliver to Landlord an agreement in the form attached as Exhibit D
("Acceptance Agreement") to acknowledge and confirm the Commencement Date and
that Tenant has accepted the Premises for occupancy subject only to those
defects specified by Tenant in the Acceptance Agreement and latent defects.
Landlord shall promptly thereafter correct such defects, subject to delays
beyond Landlord's reasonable control. If Tenant takes possession of and
occupies the Premises but fails to timely execute and deliver the Acceptance
Agreement, Tenant shall be deemed to have accepted the Premises for occupancy
and the condition thereof (including, but not limited to, the tenant finish
improvements constructed thereof) as satisfactory in all respects, except for
latent defects.
Section 3.3. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease or upon the exercise by Landlord of its right to re-
enter the Premises without terminating this Lease, Tenant shall immediately
surrender the Premises to Landlord, together with all alterations, improvements
and other property as provided herein, in a clean condition and otherwise in
good order, condition and repair except for ordinary wear and tear and the
effects of casualty, condemnation, or Landlord's acts or inaction, failing which
Landlord may place the Premises in such condition at Tenant's expense. Upon
such expiration or termination, Tenant shall have the right to remove its trade
fixtures and equipment as and to the extent permitted under Section 7.4. Tenant
shall, at its expense, promptly repair any damage caused by any such removal and
shall restore the Premises to the condition existing prior to the installation
of the items removed.
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Section 3.4. Holding Over. No holding over by Tenant after expiration or
earlier termination of the Term shall operate to extend the Lease. In the event
of any unauthorized holding over, Tenant shall pay Monthly Rent equal to one
hundred twenty-five percent (125%) of the Monthly Rent payable for the month
immediately preceding such holding over plus Additional Rent equal to one
hundred twenty-five percent (125%) of the estimated Additional Rent (including,
but not limited to, the estimated Annual Operating Expense Adjustment)
applicable to the period of such holding over; and Tenant shall indemnify
Landlord against all claims, damages, costs and expenses (including, but not
limited to, reasonable attorneys' fees) in connection with such holding over,
including, without limitation, all claims by any other person or entity to which
Landlord may have leased all or any part of the Premises effective upon or after
expiration or termination of the Term. Acceptance of such rent by Landlord
shall in no event constitute a waiver of Tenant's default or an authorization of
Tenant's holding over nor prevent Landlord from exercising any of its other
rights and remedies. Any holding over with the consent of Landlord in writing
shall thereafter constitute a lease from month-to-month.
ARTICLE 4. RENT
Section 4.1. Monthly Rent. Tenant shall pay, in advance on the first day of
each calendar month during the Term, Monthly Rent as specified in Item D of the
Basic Lease Provisions as the basic rent per month for the Premises. In the
case of a partial calendar month at or prior to the beginning of the Term, the
Monthly Rent for the partial month shall be prorated on a daily basis and shall
be paid on or before the first day of the Term. Tenant also agrees to pay
Landlord any excise, sales or privilege tax, if any, imposed by any governmental
authority on account of this Lease or the rent paid hereunder, but only if such
tax is in substitution for, or in lieu of, real estate taxes.
Section 4.2. Additional Rent.
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(a) Definitions. As used herein the following terms shall have the
meanings indicated:
(i) "Operating Expenses" shall mean the amount of all of Landlord's
reasonable and, in the case of affiliates of Landlord providing
goods or services, competitive direct costs and expenses paid or
incurred in operating and maintaining the Building and the Land
(including the Common Areas defined in Section 17.3) for a
particular calendar year as determined by Landlord in accordance
with generally accepted accounting principles, consistently
applied, including by way of illustration and not limitation: all
general property taxes and all assessments levied or assessed by
any lawful authority against the Building including land and
improvements together with the costs and expenses of contesting
the validity or amount of real estate taxes; the assessments and
other charges allocated to the Building or Land under the
Declarations of Protective Covenants for the Edison Lakes
Corporation Park and any other instrument applicable to the
Building or Land that is now or hereafter of record; sewage
treatment costs; insurance premiums; water, electrical and other
utility charges other than the separately billed electrical and
other charges paid by any tenant of the Building; service and
other charges incurred in the operation and maintenance of the
elevators and the heating, ventilation and air-conditioning
system; cleaning and other janitorial services; tools and
supplies; repair costs; landscape maintenance costs; security
services; license, permit and inspection fees; management fees
not to exceed
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four (4%) percent of all gross income; all additional direct costs
and expenses for electric utilities and repair costs it would have
paid or incurred during the applicable calendar year if the Building
had been fully occupied; a reserve equal to $.25 per Rentable Square
foot for capital expenditures excluded from Operating Expenses under
the provisions of subparagraph (iv) below; amortization of capital
improvements that produce a net reduction in operating costs
together with interest at the rate of nine percent (9%) per annum on
the unamortized balance thereof, but only to the extent they produce
a net reduction in Operating Expenses and in general all other costs
and expenses which would, under generally accepted accounting
principles, be regarded as operating and maintenance costs and
expenses, including those which would normally be amortized over a
period not to exceed five (5) years. The reserve shall be increased
to $.375 per Rentable Square foot during years 6 through 10 and $.50
per Rentable Square foot during subsequent years. There shall also
be included in Operating Expenses the cost or portion thereof
reasonably allocable to the Building, amortized over such period as
Landlord shall reasonably determine, together with interest at the
rate of nine percent (9%) per annum on the unamortized balance, of
any capital improvements required to be made to the Building after
the Commencement Date under any governmental law or regulation
enacted or imposed after the Commencement Date.
(ii) "Tenant's Share" shall mean the percentage specified in Item C of
the Basic Lease Provisions. This percentage was determined by
dividing the rentable area in the Premises by the total rentable
area in the Building, and shall be adjusted as necessary after
actual measurement made upon completion of the Building and the
Premises.
(iii)"Annual Operating Expense Adjustment" shall mean for each calendar
year falling wholly or partly within the Term, Tenant's Share of the
amount of the Operating Expenses for such year.
(iv) Exclusions from Operating Expenses. Notwithstanding anything to the
contrary contained herein, Operating Expenses (i) shall not include
the following: any amount for depreciation of the Building or any
part thereof or the Common Areas; except as expressly stated above,
any expense, depreciation or other charge for any capital
improvements to the Building or the Common Areas, including but not
limited to, any replacement of the roof, foundation or structure of
the Building, or mechanical, plumbing, electrical or other
components or equipment of the Building or Premises or parking lots,
driveways, walkways, curbs, drainage strips, sewer lines or any
other structure or component of the Premises that Landlord is
obligated to replace, provided that ordinary repair and maintenance
of such items shall be Operating Expenses; any expenses or charge
incurred in correcting any construction defect or for repair of any
part of the Building or Common Areas or any mechanical, plumbing,
electrical or heating, ventilation or air conditioning ("HVAC") or
other components or equipment therein or thereof which, if any such
instance, is covered by an applicable warranty or by insurance;
rental commissions or fees; legal fees in connection with Landlord
financing or refinancing, negotiation and preparation of leases, and
any disputes with lessees; franchise or income taxes imposed upon
Landlord, except as expressly noted if levied or imposed in lieu of
or replacement for real estate taxes; any cost or other
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charge for painting, repainting, decorating or redecorating for any
particular lessee; wages, salaries or other compensation paid to any
employees; any payment required under the terms of any mortgage or
deed of trust now or hereafter constituting a lien against the
Building; and (ii) shall not include any cost billed to and paid
directly by a lessee, or for which Landlord otherwise is reimbursed
in any manner (except by payment of Tenant's and other lessee's
proportionate shares as herein provided); and costs incurred as a
result of the negligence or willful acts of Landlord, its agents or
employees or other tenants of the Building.
(b) Obligation to Pay Additional Rent. In addition to the Monthly Rent,
Tenant agrees to pay as Additional Rent as provided herein the Annual
Operating Expense Adjustment for each calendar year falling wholly or
partly within the Term, except Tenant shall not be required to pay
Additional Rent for the first twelve (12) months of the lease term.
(i) Estimated Annual Operating Expense Adjustment. The Annual Operating
Expense Adjustment shall be estimated annually by Landlord, and
written notice thereof shall be given to Tenant at least thirty (30)
days prior to the beginning of each calendar year. Tenant shall
then pay to Landlord each month, at the same time the installment of
Monthly Rent is due, an amount equal to one-twelfth (1/12th) of the
estimated Annual Operating Expense Adjustment. Notwithstanding the
foregoing or anything to the contrary contained herein, Tenant shall
not be obligated to pay any estimated or actual Annual Operating
Expense Adjustment for the first twelve (12) months of the Term of
this Lease.
(ii) Increases in Estimated Annual Operating Expense Adjustment.
Landlord shall have the right to revise the estimated Annual
Operating Expense Adjustment for a given calendar year upon not less
than fifteen (15) days prior written notice to Tenant, provided that
the actual amount of the Annual Operating Expense Adjustment for
such calendar year will, in Landlord's reasonable judgment, exceed
Landlord's prior estimate for such calendar year. In addition, at
the time Landlord revises an estimated Annual Operating Expense
Adjustment for a given calendar year, Landlord shall be entitled to
collect from Tenant, within twenty (20) days after submitting a
statement thereof, a lump sum payment which, when added to the
monthly installments of the estimated Annual Operating Expense
Adjustment previously paid by Tenant in such calendar year and the
revised monthly installments to be made during the balance of such
calendar year, will equal the estimated Annual Operating Expense
Adjustment as then revised by Landlord.
(iii) Annual Adjustment. Within ninety (90) days after the end of each
calendar year (or as soon thereafter as is reasonably practicable),
Landlord shall prepare and deliver to Tenant statement showing the
actual Annual Operating Expense Adjustment for such calendar year,
and within fifteen (15) days of such date, Tenant shall pay Landlord
any deficiency, or Landlord shall credit the Tenant's account for
overpayment, of the Annual Operating Expense Adjustment for such
calendar year. Landlord's failure to timely deliver any statement
of an estimated Annual Operating Expense Adjustment or any statement
of an actual Annual Operating Expense Adjustment shall not relieve
Tenant of its obligation to pay, when such statement is provided,
the estimated
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Annual Operating Expense Adjustment or the actual
Annual Operating Expense Adjustment, as the case may be. In the
case of a calendar year falling only partly within the portion of
the Term during which Tenant is obligated to pay an Annual Operating
Expense Adjustment, the Annual Operating Expense Adjustment payable
by Tenant with respect to such year shall be prorated on the basis
of the number of days in such year that fall within such portion of
the Term in relation to the total number of days in such year.
(iv) Tenant Verification. Tenant or its accountants shall have the right
to inspect, upon reasonable notice, at reasonable times and in a
reasonable manner during the ninety (90) day period following the
delivery of Landlord's statement of the actual Annual Operating
Expense Adjustment for a calendar year, such of Landlord's books of
account and records as pertain to and contain information concerning
the Operating Expenses for such year in order to verify the amounts
thereof. In the event Tenant identifies errors or omissions in the
Landlord's statement of the actual Annual Operating Expense
Adjustment for any given calendar year which results in a net credit
due to Tenant, Tenant shall receive that credit in the manner
provided under Section 3.2(b)(iii) and, to the extent that credit
exceeds ten percent (10%) of the Tenant's Annual Operating Expense
Adjustment for that calendar year, the cost of Tenant's review shall
be paid by Landlord, and Tenant shall be entitled, at its option and
expense, to inspect or reinspect the Landlord's statement of the
actual Annual Operating Expense Adjustments from prior calendar
years during the Lease Term, and any net credit due to Tenant will,
likewise, be provided in the manner described in 3.2(b)(iii).
(v) Tax Abatement. The Annual Operating Expense Adjustment shall be
based on the actual real estate taxes payable by Landlord, so that
the adjustment will be reduced by the abatement of taxes previously
granted for the Building.
Section 4.3. Late Charges. Tenant acknowledges that the late payment by
Tenant to Landlord of Monthly Rent, Additional Rent or any other amount required
to be paid to Landlord under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which is extremely difficult and
impracticable to ascertain. Such costs include, without limitation, processing
and accounting charges and late charges that may be imposed upon Landlord by
virtue of its debt obligations. Accordingly, if Tenant fails to make any
payment required hereunder when payment is due, Tenant shall pay a late charge
equal to two percent (2%) of such payment, but in no event such a late charge be
less than One Hundred Dollars ($100.00). Notwithstanding the foregoing, Tenant
shall be entitled to one (1) ten (10) day grace period after notice by Landlord
during each calendar year of the Lease Term before any such late charge shall be
due and payable.
Section 4.4. Manner of Payment. The Monthly Rent, Additional Rent and other
sums of money and charges payable by Tenant hereunder shall be paid promptly
when due, without relief from valuation and appraisement laws, notice or demand
therefor, or set off for any reason whatsoever. All payments required to be
paid by Tenant to Landlord under the provisions of this Lease shall be paid by
Tenant in lawful money of the United States at the address provided herein for
notices to Landlord or at such other place or to such other person as Landlord
may from time to time designate by notice to Tenant.
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ARTICLE 5. OCCUPANCY AND USE
Section 5.1 Occupancy. Tenant shall use and occupy the Premises for the
purposes set forth in Item I of the Basic Lease Provisions and shall not use the
Premises for any other purpose except with the prior written consent of
Landlord.
Section 5.2. Use of Premises. In connection with the use of the Premises,
Tenant agrees to do the following:
(a) Tenant shall use and maintain the Premises and conduct its business
thereon in a safe, careful, reputable and lawful manner and in compliance
with all laws, codes, ordinances, rules, regulations and orders
(collectively "Laws") of any governmental authority or agency, including
without limitation those governing zoning, health, safety (including fire
safety), and occupational hazards, pollution and environmental control,
and handicapped accessibility (including but not limited to any such laws
imposing upon Landlord or Tenant any duty respect or triggered by any
change in use or occupancy or any alteration or improvement of, in or to
the Premises after the Commencement Date), all requirement of Landlord's
insurance carrier, and all reasonable directions of Landlord, including
the Rules and Regulations attached hereto as Exhibit E, may be modified
from time to time by Landlord on reasonable notice to Tenant provided the
rules are uniformly and consistently applied to all other tenants in the
Building. Landlord acknowledges that it is familiar with Tenant's
intended use of the Premises and agrees that the directions of Landlord,
including any modified rules or regulations, will not interfere with
Tenant's intended use of the Premises.
(b) Tenant shall not use the Premises for any unlawful purpose or act, commit
or permit any waste or damage to the Premises, or do or permit anything
to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building
or injury or annoy them. Landlord shall not be responsible to Tenant for
the nonperformance by any other tenant or occupant of the Building of any
of the Rules and Regulations but shall use reasonable efforts to cause
other tenants to comply therewith.
(c) Tenant shall not use the Premises, or allow the Premises to be used, for
any purpose or in any manner which would, in Landlord's reasonable
judgment, invalidate any policy of insurance now or hereafter carried on
the Building or increase the rate of premiums payable on any such
insurance policy. Should Tenant fail to comply with this covenant,
Landlord may require that Tenant stop engaging in such activity and in
any event reimburse Landlord as Additional Rent for any increase in
premiums charged during the Term on the insurance carried by Landlord
that is attributable to Tenant's use of the Premises.
(d) Tenant shall not overload the floors of the Premises beyond their
designated weight-bearing capacity, which Landlord has determined to be
eighty (80) pounds per square foot live load, including an allowance for
partition load. Landlord reserves the right to direct the positioning of
all heavy equipment, furniture and fixtures which Tenant desires to place
in the Premises so as to distribute properly the weight thereof, and
require the removal of any equipment or furniture which exceeds the
weight limit specified herein.
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Section 5.3. Landlord's Rights Regarding Use. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Premises and the Common Areas by Tenant, its employees,
agents, customers and invitees, each of which may be exercised without notice or
liability to Tenant:
(a) Landlord may install such signs, advertisement or notices or tenant
identification information as it shall deem necessary and proper;
however, Tenant shall approve any use of Tenant's name or of any of its
trademarks.
(b) Landlord may grant to any person the exclusive right to conduct any
business or render any service in the Building, provided that such
exclusive right shall not operate to limit Tenant from using the Premises
for the use permitted in Item I of the Basic Lease Provisions and that
such business will be rendered or service provided at competitive rates.
(c) Landlord may control the Common Areas in such manner as it deems
necessary or proper, including by way of illustration and not limitation,
excluding or expelling any peddler, solicitor or loud or unruly person
from the Building; and closing or limiting access to the Building or any
part thereof, including entrances, corridors, doors and elevators, during
times of emergency, repairs, alterations or after regular business hours,
provided that Tenant will have reasonable access to the Premises at all
times.
Section 5.4. Access to and Inspection of the Premises. Landlord, its
employees and agents and any mortgagee of the Building shall have the right to
enter any part of the Premises at reasonable times for the purposes of examining
or inspecting the Premises, or showing the Premises to prospective purchasers,
mortgagees or tenants and making such repairs, alterations or improvements to
the Premises or the Building as Landlord may deem necessary or desirable. If
representatives of Tenant shall not be present to open and permit such entry
into the Premises at any time when such entry is necessary or permitted
hereunder, Landlord and its employees and agents may enter the Premises by means
of a master or pass key or otherwise. Landlord shall incur no liability to
Tenant for such entry, nor shall such entry constitute an eviction of Tenant or
a termination of this Lease or entitle Tenant to any abatement of rent therefor.
Landlord agrees that any such entry will be only after notice to Tenant and in
the presence of an employee of Tenant, except in the case of an emergency. Any
such entry shall not interfere with Tenant's use of the Premises.
Section 5.5. Hazardous Waste Provisions. (a) Tenant shall not in any manner
use, maintain or allow the use or maintenance of the Premises in violation of
any laws, including but not limited to those governing hazardous, toxic or
infectious waste, materials and substances. Tenant shall not use or allow the
use of the Premises or any part thereof to treat, store, dispose of, transfer,
release, convey or recover hazardous, toxic or infectious waste, materials or
substances nor shall Tenant otherwise, in any manner, possess or allow the
possession of any hazardous, toxic or infectious waste, materials or substances
on or about the Premises, except the ordinary course of business and in
compliance with all applicable laws. Hazardous, toxic or infectious waste,
materials or substances shall mean any solid, liquid or gaseous waste or
emission or any combination thereof which because of its quantity, concentration
or physical, chemical, or infectious characteristics may (i) cause or
significantly contribute to an increase in mortality or in serious or
incapacitating, irreversible illness, or (ii) pose the risk of a substantial
present or potential hazard to human health, to the environment or otherwise to
animal or plant life when used,
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treated, stored, transported, disposed of or otherwise managed or handled.
Tenant shall indemnify and hold harmless Landlord for any and all claims, loss,
liability, costs, expenses or damage, including reasonable attorneys' fees,
incurred by Landlord in connection with any breach by Tenant of its obligations
under this section.
(b) Landlord shall indemnify and hold harmless Tenant for any and all
claims, loss, liability, costs, expenses or damages, including reasonable
attorneys' fees, incurred by Tenant in connection with any environmental
condition existing on the Land prior to occupancy of the Premises by Tenant or
which are caused by Landlord.
(c) The provisions of this article shall survive the termination of this
Lease.
ARTICLE 6. UTILITIES AND OTHER BUILDING SERVICES
Section 6.1. Services to be Provided. (a) Provided Tenant is not in
default and subject to interruptions beyond Landlord's reasonable control,
Landlord shall furnish to Tenant the following utilities and other Building
services to the extent reasonably necessary for Tenant's comfortable use and
occupancy of the Premises for general office use as may be required by law or
directed by governmental authority:
(1) Heating, ventilation and air-conditioning between the hours of 7:00
a.m. and 8:00 p.m. Monday through Friday and 8:00 a.m. to 6:00 p.m. on
Saturday of each week except legal holidays.
(2) Electrical current not to exceed four (4) watts per square foot.
Tenant's use of electrical current shall at no time exceed the
capacity of the feeders to the Building or the risers or wiring
installation serving the Premises.
(3) Water in the Premises and in the Common Areas for lavatory and
drinking purposes.
(4) Cleaning and janitorial service for the Common Areas and the Premises
on Monday through Friday of each week except legal holidays; provided,
however, that Tenant shall be responsible for carpet cleaning in the
Premises other than routine vacuuming.
(5) Washing of windows at intervals reasonably established by Landlord.
(6) Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting (described in Exhibit B) as required from time to
time as a result of normal usage.
(7) Cleaning and maintenance of the Common Areas, including the removal of
rubbish and snow and the furnishing of paper towels, toilet tissue and
soap.
(8) Automatic elevator service.
(9) Repair and maintenance to the extent specified elsewhere in this
Lease.
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(10) Security services comparable to other buildings of similar size,
quality and location.
(b) Landlord shall also provide continuous (24 hours a day every day)
heating, ventilation and air-conditioning for Tenant's computer room as
identified on Exhibit B. Landlord recognizes that Exhibit B specifies a separate
HVAC system for the computer room with the specifications indicated in Exhibit B
to maintain air temperature as specified therein.
Section 6.2. Additional Services. If Tenant reasonably requests any other
utilities or Building services in addition to those identified above or any of
the above utilities or Building services in frequency, scope, quality or
quantity greater than those which Landlord determines are normally required by
other tenants in the Building for general office use, then Landlord shall use
reasonable efforts to attempt to furnish Tenant with such additional utilities
or Building services. In the event Landlord is able to and does furnish such
additional utilities or Building services, the costs thereof shall be borne by
Tenant who shall reimburse Landlord monthly for such costs as Additional Rent at
the same time payments of Monthly Rent are due.
Tenant shall not install or connect any electrical equipment other than the
business machines, computers and equipment typically used for general office and
test kitchen purposes by tenants in office buildings comparable to the Building
without Landlord's prior written consent. Landlord represents that the
electricity used by the equipment to be so installed or connected by Tenant does
not exceed the load capacity of the Building's electrical system serving the
Premises and is compatible therewith.
Section 6.3. Interruption of Services. Tenant understands, acknowledges
and agrees that any one or more of the utilities or other Building services
identified in Section 6.1 may be interrupted by reason of accident, emergency or
other causes beyond Landlord's reasonable control; that upon reasonable notice
such utilities or Building services may be discontinued or diminished
temporarily by Landlord until certain repairs, alterations or improvements can
be made; that Landlord does not represent or warranty the uninterrupted
availability of such utilities or Building services; and that any such
interruption shall not be deemed an eviction or disturbance of Tenant's right to
possession, occupancy and use of the Premises or any part thereof or render
Landlord liable to Tenant for damages by abatement of rent or otherwise or
relieve Tenant from the obligation to perform its covenants under this Lease;
provided, however, Landlord shall exercise its best efforts to minimize any such
interruptions, and, to the extent any such interruption is caused and can be
cured by events within the direct control of Landlord, Landlord shall exercise
its best efforts to minimize such interruption.
ARTICLE 7. REPAIRS, MAINTENANCE, ALTERATIONS,
IMPROVEMENTS AND FIXTURES
Section 7.1. Repair and Maintenance of Building. Subject to Section 7.2
and except for repairs made necessary by the negligence, misuse or default of
Tenant, its employees, agents, customers or invitees and not reimbursed by
insurance, Landlord shall make all necessary repairs to the exterior walls,
exterior doors, windows, corridors and other Common Areas of the Building, and
Landlord shall keep the Building in a safe, clean and neat condition and shall
use reasonable efforts to keep all equipment, such as elevators, plumbing,
heating, air-conditioning and similar equipment, in good condition and repair.
Except as provided in Article 6, Article 8 and Article 10 hereof, there shall be
no abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising
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from the making of any repairs, alterations or improvements in or to any portion
of the Building or the Premises or in or to any fixtures, appurtenances and
equipment therein or thereon.
Section 7.2. Repair and Maintenance of Premises. Landlord shall keep and
maintain the Premises in good order, condition and repair. Except for the
services specified in Section 6.1(a)(4), (5) and (6), and ordinary wear and
tear, casualty, condemnation, the costs of all repairs and maintenance to the
Premises shall be paid by Tenant as Additional Rent within twenty (20) days
after Landlord submits its statement of such costs.
Section 7.3. Alterations or Improvements. Tenant shall make no leasehold
improvements, alterations or additions on or about the Premises or any part
thereof without Landlord's prior written consent. If Landlord permits Tenant to
make any such improvements, alterations or additions, Tenant shall (i) obtain
all necessary permits and ensure all improvements, alterations and additions
which are made or necessitated thereby shall be made and performed in accordance
with all applicable laws, building codes, ordinances, covenants, rules and
regulations in a good and workmanlike manner and in quality equal to or better
than the original construction of the building and the Premises, (ii) comply
with such requirements as Landlord considers necessary or desirable, including,
without limitation, the requirement that Tenant obtain a policy of builder's
risk insurance written on a completed value basis, other insurance requirements
and requirements as to the manner in which and the times at which such work
shall be done and the contractor and subcontractors to perform such work, (iii)
promptly pay all costs of performing such work, and (iv) indemnify and hold
Landlord harmless from and against any and all liability, loss, damage and
expense (including, but not limited to, reasonable attorneys' fees) incurred by
Landlord that arise out of, result from or are in connection with such work.
All improvements, alterations and additions made by Tenant shall, except as
otherwise agreed in writing by Landlord, remain for the benefit of Landlord.
However, Landlord may elect by written notice to Tenant to require that Tenant,
at its expense, remove on or before thirty (30) days after expiration or earlier
termination of the Term all or any portion of the leasehold improvements,
alterations or additions made by Tenant and repair any damage caused by removal.
Section 7.4. Trade Fixtures. All of Tenant's trade fixtures and equipment
installed in the Premises may be removed by Tenant upon expiration or earlier
termination of this Lease, provided that (i) Tenant at its expense shall repair
any damage to the Premises and the Building caused by such removal and (ii)
Tenant is not then in default under this Lease provided however, Tenant shall be
entitled to remove its computer equipment irrespective of any disputes. After
expiration or earlier termination of the Term, Landlord shall have the right to
remove and store Tenant's trade fixtures and equipment and to have any damage
from such removal repaired, all at Tenant's expense.
Section 7.5. Mechanic's Lien. Tenant shall not permit or cause the filing
of any mechanic's lien against the premises or any part of the Building or Land.
In the event any mechanic's lien is filed against the Premises or any part of
the Building or Land for work claimed to have been done for or materials claimed
to have been furnished to Tenant, Tenant shall cause such mechanic's lien to be
discharged of record within thirty (30) days after filing by bonding or as
provided or required by law or in any lawful manner. Tenant shall indemnify and
save Landlord harmless from and against any and all liability, loss, cost and
expense (including, but not limited to, reasonable attorneys' fees) in
connection with any such mechanic's lien.
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ARTICLE 8. FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
Section 8.1. Casualty. (a) In the event of the total or partial
destruction of the Premises by fire or other casualty, the insurance proceeds,
if any, which as a result of such destruction are payable under the fire and
extended coverage insurance to be maintained by Landlord shall be payable to,
and be the sole property of, Landlord. Landlord shall rebuild, repair and
restore the Premises and/or the Building to substantially the same condition as
existed prior to the casualty; provided, however, that Landlord shall be
obligated to rebuild or restore the alterations, additions or improvements made
by Tenant to the Premises only to the extent that such are covered by the policy
of fire and extended coverage insurance to be maintained by Landlord.
Notwithstanding the foregoing, in the event that (i) the Premises and/or the
Building are so destroyed that the Premises cannot reasonably be restored within
one hundred eighty (180) days after the date of the damage or destruction, (ii)
the damage or destruction is not covered by the policy of fire and extended
coverage insurance to be maintained by Landlord and Landlord does not undertake
to restore the Premises and/or the Building within ninety (90) days after the
date of such damage or destruction, or (iii) the insurance proceeds (reduced by
any application thereof by Landlord's mortgagee to its mortgage) are
insufficient for restoration of the Premises and/or the Building and Landlord
does not undertake such restoration within ninety (90) days after the date of
such damage or destruction, then Landlord shall not be obligated to restore the
Premises and/or the Building or any portion thereof, and either Landlord or
Tenant may then terminate and cancel this Lease upon thirty (30) days written
notice to the other, and all obligations hereunder except those then due or
matured shall thereupon cease and terminate. Monthly Rent shall proportionately
abate during the time that the Premises or any part thereof is unusable by
reason of any casualty damage thereto.
(b) In the event the Lease is not terminated following any such fire or
other casualty, then, Landlord shall repair, rebuild and/or restore the Premises
and/or the Building as nearly as possible to the same condition as existed prior
to the fire or other casualty. In the event such repairs, rebuilding and/or
restoration following any such fire or casualty shall not be completed within
one hundred eighty (180) days following the date of the fire or other casualty,
Tenant may terminate this Lease immediately upon written notice to Landlord. All
such repairs and/or restoration shall be done in accordance with all applicable
laws, ordinances, rules and regulations of any applicable governmental
authority.
Section 8.2. Casualty Insurance. Landlord shall at all times during the
Term carry a policy of broad form fire and extended coverage insurance, which
insures the Building, including the Premises, for their full insurable value on
a replacement cost basis, against loss or damage by fire or other casualty
(namely, the perils against which insurance is afforded by a standard fire
insurance policy and extended coverage endorsement); provided, however, that
Landlord shall not be responsible for, and shall not be obligated to insure
against, any loss of or damage to any personal property of Tenant or which
Tenant may have in the Building or the Premises or any trade fixtures installed
by or paid for by Tenant on the Premises. If the tenant finish improvements made
by Tenant pursuant to Section 7.3 result in an increase in the premiums for
casualty insurance carried by Landlord on the Building, then the cost of such
increase shall be borne by Tenant, who shall reimburse Landlord for such cost as
Additional Rent after being separately billed therefor.
ARTICLE 9. INSURANCE
Section 9.1. Public Liability Insurance - Tenant. Tenant shall maintain
in full force and effect
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throughout the Term a policy of comprehensive general public liability insurance
(including blanket, contractual liability, broad form property damage, personal
injury, completed operations, products liability, and fire damage) issued by a
company or companies satisfactory to Landlord, naming Landlord, property
manager, and Tenant as insureds, and covering any and all claims for injuries to
or death of persons and damage to property occurring in or upon the Premises in
an amount not less than Three Million Dollars ($3,000,000.00) combined single
limit for both bodily injury and personal property.
Section 9.2. Public Liability Insurance - Landlord. Landlord shall
maintain in full force and effect throughout the Term a policy of comprehensive
general public liability insurance (including blanket, contractual liability,
broad form property damage, personal injury, completed operations, products
liability, and fire damage) issued by a company or companies satisfactory to
Tenant, naming Landlord, property manager, and Tenant as insureds, and covering
any and all claims for injuries to or death of persons and damage to property
occurring in or upon the Common Areas in an amount not less than Three Million
Dollars ($3,000,000.00) combined single limit for both bodily injury and
personal property.
Section 9.3. Insurance on Tenant's Property. Tenant shall also maintain
in full force and effect throughout the Term fire and extended coverage
insurance naming Landlord as an additional insured, on its fixtures, equipment,
merchandise and other personal property in or upon the Premises for its full
insurable value on a replacement cost basis, if obtainable, and if not
obtainable, for the full amount of its actual cash value.
Section 9.4. Certificates of Insurance. For each type of insurance which
either party is required to maintain under this Lease, that party shall furnish
the other party a certificate or certificates of insurance showing that each
such type of insurance is in full force and effect and not cancelable without
thirty (30) days prior written notice to the other party.
Section 9.5. Waiver of Subrogation. Landlord and Tenant hereby release
each other and each other's employees, agents, customers and invitees from any
and all liability for any loss of or damage or injury to (i) person or property
occurring in, on, or about the Premises, the Building or the Common Areas or
(ii) any personal property on or within the Building or the Common Areas or
(iii) the Building or Common Areas, by reason of fire or other casualty which is
insured against under the policies required to be maintained hereunder by
Landlord or Tenant (or would be so insured absent the failure of Landlord or
Tenant to maintain such insurance), regardless of cause, including negligence of
Landlord or Tenant and their respective employees, agents, customers and
invitees. Because the provisions of this Section are intended to preclude the
assignment of any claim mentioned herein by way of subrogation or otherwise to
any insurer or any other person to the extent of the foregoing mutual releases,
each party to this Lease shall give to each insurance company which has issued
to it one or more policies of fire and extended coverage insurance notice of the
provisions of this Section and have such insurance policies properly endorsed,
if necessary, to prevent the invalidation of such insurance by reason of the
provisions hereof.
Section 9.6. Tenant's Indemnification. Tenant assumes all risks and
responsibilities for accidents, injuries or damages to person or property and
agrees to indemnify and hold Landlord and property manager harmless from any and
all claims, liabilities, losses, costs and expenses (including attorneys' fees)
arising from or in connection with the condition, use or control of the Premises
and any
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improvements thereon during the term of this Lease. Tenant shall be
liable to Landlord for any damages to the Premises caused by Tenant or any
person coming on to the Premises by the license or invitation of Tenant, express
or implied (except Landlord, its agents or employees). This Section shall not,
however, impose upon Tenant any liability from which Tenant is released under
Section 9.5.
Section 9.7. Landlord's Indemnification. Landlord assumes all risks and
responsibilities for accidents, injuries or damages to person or property and
agrees to indemnify and hold Tenant harmless from any and all claims,
liabilities, losses, costs and expenses (including attorneys' fees) arising from
or in connection with the condition, use or control of the Building (other than
the Premises) and the Common Areas and any improvements thereon during the term
of this Lease. Landlord shall be liable to Tenant for any damages to Tenant or
any person coming on to the Building or Common Areas by the license or
invitation of Landlord, express or implied (except Tenant, its agents or
employees). This Section shall not, however, impose upon Landlord any liability
from which Landlord is released under Section 9.5.
Section 9.8 Increase in Insurance Rates. Tenant shall not use the
Premises for any purpose or in any manner which would, in Landlord's opinion,
invalidate any policy of insurance now or hereafter carried on the Building or
increase the rate of premiums payable thereunder or expose the Premises,
Building or surrounding land and improvements to the risk of contamination by
hazardous or toxic materials. If Tenant fails to comply with this covenant,
Landlord may require Tenant to stop engaging in such activity, and in all events
Tenant shall reimburse Landlord as Additional Rent for the increase in premiums
for the insurance carried by Landlord which is attributable to Tenant's use of
the Premises.
Section 9.9 Tenant's Property Landlord shall not be liable for, and
Tenant waives all claims against Landlord for, any damages (including, but not
limited to, consequential damages) or losses of or to property, sustained by
Tenant, however caused. All property of Tenant kept or stored in, upon or about
the Premises shall be so kept or stored at the sole risk of Tenant; and Tenant
shall hold Landlord harmless from any claims, costs or expenses, including
attorneys' fees, arising out of damage thereto.
ARTICLE 10. EMINENT DOMAIN
If the whole or any part of the Premises, Building or Common Areas shall be
taken for public or quasi-public use by a governmental or other authority having
the power of eminent domain or shall be conveyed to such authority in lieu of
such taking, and if such taking or conveyance shall cause the Premises or the
remaining part of the Premises to be untenantable and inadequate for use by
Tenant for the purpose for which they were leased, then either Landlord or
Tenant may, at its option, terminate this Lease as of the date of surrender of
possession by giving written notice of such termination to the other party. If
a part of the Premises shall be taken or conveyed but the Lease is not
terminated, then this Lease shall be terminated as to the part taken or conveyed
as of the date Tenant surrenders possession; Landlord shall make such repairs,
alterations and improvements as may be necessary to render tenantable, and, to
the extent possible, comparable, the part not taken or conveyed; and the rent
shall be reduced in proportion to the part of the Premises taken or conveyed.
If part of the Building or Common Areas is taken and this Lease is not
terminated, Landlord shall make such repairs, alterations and improvements as
shall be necessary to render the Building and the Common Areas as comparable to
their condition prior to the taking as possible. All compensation awarded for
such taking or conveyance shall be the property of Landlord without any
deduction therefrom for any present or future estate of
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Tenant, and Tenant hereby assigns to Landlord all of its right, title and
interest in and to any such award. However, Tenant shall have the right to
recover from such authority, but not from Landlord, such compensation as may be
separately awarded to Tenant on account of moving and relocation expenses and
depreciation to and removal of Tenant's property.
ARTICLE 11. RENTAL, PERSONAL PROPERTY AND OTHER TAXES
Tenant shall pay before delinquency any and all taxes, assessments, fees or
charges, including any sales, gross income, rental, business occupation or other
taxes, levied or imposed upon Tenant's business operations in the Premises and
any personal property or similar taxes levied or imposed upon Tenant's trade
fixtures, leasehold improvements or personal property located within the
Premises. In the event any such taxes, assessments, fees or charges are charged
to the account of, or are levied or imposed upon the property of Landlord,
Tenant shall reimburse Landlord for the same as Additional Rent.
Notwithstanding the foregoing, Tenant shall have the right to contest in good
faith any such item and to defer payment until after Tenant's liability therefor
is finally determined.
ARTICLE 12. ASSIGNMENT AND SUBLETTING
Tenant may assign this Lease or sublet the Premises or any part thereof
only with the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned.
ARTICLE 13. TRANSFERS BY LANDLORD
Section 13.1. Sale and Conveyance of the Building. Landlord shall have the
right to sell and convey the Building at any time during the Term of this Lease
subject only to the rights of Tenant hereunder.
Section 13.2. Subordination. So long as any present or future mortgagee
shall enter into a nondisturbance agreement with Tenant, in a form reasonably
satisfactory to Tenant, Tenant shall subordinate this Lease to any mortgage
presently existing or hereafter placed upon the Building. Tenant shall, at
Landlord's request, execute and deliver to Landlord, without cost, any
instrument which may be reasonably necessary; and, if Tenant fails or refuses to
do so, Landlord may execute such instrument in the name and as the act of
Tenant. Notwithstanding the foregoing, no default by Landlord under any such
mortgage shall affect Tenant's rights hereunder so long as the Tenant is not in
default under this Lease. Tenant shall, in the event any proceedings are
brought for the foreclosure of any such mortgage, attorn to the purchaser upon
any such foreclosure and recognize such purchaser as the Landlord under this
Lease.
ARTICLE 14. DEFAULTS AND REMEDIES
Section 14.1. Defaults by Tenant. The occurrence of any one or more of
the following events shall be a default under and breach of this Lease by
Tenant:
(a) Tenant shall fail to pay any payment of Monthly Rent or Additional
Rent within five (5) days after the same shall be due and payable or
Tenant shall fail to pay any other amounts due to
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Landlord from Tenant (including any amounts owed by Tenant for
Building Non-Standard Work) within thirty (30) days after the same
shall be due and payable.
(b) Tenant shall fail to perform or observe, whether by action or
inaction, any covenant, term, provision or condition of this Lease
(other than payment of rent or other charges payable hereunder) within
the thirty (30) day period after written notice of default has been
given by Landlord to Tenant; provided that in the case of a default
which by its nature cannot be cured within thirty (30) days, Tenant
shall have an additional reasonable period of time ("Additional
Period") to cure the default if, and only if, Tenant promptly and
within such thirty (30) day period commences to cure the default and
in good faith and with due diligence pursues the curing of the default
through the Additional Period until cured.
(c) A trustee or receiver shall be appointed to take possession of all or
substantially all of Tenant's assets in, on or about the Premises or
of Tenant's interest in this Lease (and Tenant does not regain
possession within sixty (60) days after such appointment); Tenant
makes an assignment for the benefit of creditors; or substantially all
of Tenant's assets in, on or about the Premises or Tenant's interest
in this Lease are attached or levied under execution (and Tenant does
not discharge the same within sixty (60) days thereafter.)
(d) A petition in bankruptcy or insolvency or for reorganization or
arrangement is filed by or against Tenant pursuant to any federal or
state statute (and, with respect to any such petition filed against
it, Tenant fails to secure a dismissal thereof within sixty (60) days
after such filing.)
Section 14.2. Remedies of Landlord. Upon the occurrence of any event of
default set forth in Section 14.1, Landlord shall have the following rights and
remedies, in addition to those allowed at law or in equity, any one or more of
which may be exercised without further notice to or demand upon Tenant:
(a) Landlord may re-enter the Premises and cure any default of Tenant, in
which event Tenant shall reimburse Landlord as Additional Rent for any
costs and expenses which Landlord may incur to cure such default; and
Landlord shall not be liable to Tenant for any loss or damage which
Tenant may sustain by reason of Landlord's action, regardless of
whether caused by Landlord's negligence or otherwise.
(b) Landlord may terminate this Lease, in which event (i) neither Tenant
nor any person claiming under or through Tenant shall thereafter be
entitled to possession of the Premises, and Tenant shall immediately
thereafter surrender the Premises to Landlord; (ii) Landlord may re-
enter the Premises and dispossess Tenant or any other occupants of the
Premises by any means permitted by law, and may remove their effects,
which termination, repossession and removal shall be without prejudice
to any other remedy which Landlord may have for possession, arrearage
in rent, continuing rental obligations which Tenant would have had
under this Lease had this Lease not been terminated and all other
damages and remedies available at law and in equity; it being
expressly understood and agreed that the liabilities and remedies
specified in this Subsection shall survive the termination of this
Lease.
(c) Landlord may, without terminating this Lease, re-enter the Premises
and re-let all or any part
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of the Premises for a term different from that which would otherwise
have constituted the balance of the Term and for rent and on terms and
conditions different from those contained herein, whereupon Tenant
shall be obligated to pay Landlord as liquidated damages the
difference between the rent provided for herein and that provided for
in any lease covering a subsequent reletting of the Premises, or, in
the event Landlord is unable to relet the Premises, [the present value
of] the rent provided for herein, for the period which would otherwise
have constituted the balance of the Term of this Lease, [less than the
fair market rental value of the Premises], together with all of
Landlord's reasonable costs and expenses for preparing the Premises
for re-letting, including all repairs, tenant finish improvements,
brokers' and attorneys' fees, and all loss or damage which Landlord
may sustain by reason of such re-entry and re-letting.
(d) Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the breach.
(e) Landlord shall use reasonable efforts to mitigate its damages in case
of Tenant's default by reletting the Premises at a rental which is
reasonable in the circumstances. In any action, proceeding or hearing
on any claim or counterclaim that Landlord has failed to use
reasonable efforts or that Landlord relet the Premises at a rental
that was not reasonable, the fact that such rental may be at a rate
that it lower than the rent specified herein, or payable in different
increments, shall not, by itself, establish that Landlord failed to
use reasonable efforts to mitigate its damages.
Nothing contained herein shall be construed to accelerate the due date of
any rent provided for herein.
Section 14.3. Default by Landlord and Remedies of Tenant. It shall be a
default under and breach of this Lease by Landlord if it shall fail to perform
or observe any term, condition, covenant or obligation required to be performed
or observed by it under this Lease for a period of thirty (30) days after
written notice thereof from Tenant; provided, however, that if the term,
condition, covenant or obligation is of such nature that the same cannot
reasonably be performed within such thirty (30) day period, such default shall
be deemed to have been cured if Landlord commences such performance within said
thirty (30) day period and thereafter diligently completes the same. Upon the
occurrence of any such default, Tenant may sue for injunctive relief or to
recover damages for any loss resulting from the breach, but Tenant shall not be
entitled to withhold, set off or abate any rent due hereunder (except as
expressly provided in this Lease) unless otherwise ordered by a court of
competent jurisdiction.
Section 14.4. Limitation of Landlord's Liability. Notwithstanding
anything to the contrary herein, Tenant agrees that Tenant shall look solely to
Landlord's interest in and to the Building, subject to prior rights of any
present or future mortgagee of the Building, for the collection of any judgment
(or other judicial process) requiring payment of money by Landlord in the event
of default or breach by Landlord of any of the covenants, terms or conditions of
this Lease to be observed or performed by Landlord (including, without
limitation, any indemnity obligation of Landlord hereunder), and that no other
assets of Landlord shall be subject to levy, execution or other process for
satisfaction of Tenant's remedies.
The term "Landlord" shall mean and include only the owner or owners from
time to time of the Landlord's interest in this Lease. In the event of any
transfer or transfers of such interest (except a
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transfer for security), the Landlord named herein (or the transferor in the case
of a subsequent transfer) shall, after the date of such transfer, be released
from all liability for performance of any covenant, agreement and condition on
the part of the Landlord which are thereafter to be performed hereunder. The
transferee shall be deemed to have assumed (subject to the limitations of this
paragraph) all of the covenants, agreements and conditions herein to be observed
by Landlord with the result that such covenants, agreements and conditions shall
bind the Landlord its successors and assigns, only during and in respect of
their respective successive periods of ownership.
Section 14.5. Non-Waiver of Defaults. The failure or delay by either
party hereto to exercise or enforce at any time any of the rights or remedies or
other provisions of this Lease shall not be construed to be a waiver thereof nor
affect the validity of any part of this Lease or the right of either party
thereafter to exercise or enforce each and every such right or remedy or other
provision. No waiver of any default or breach of the Lease shall be deemed to be
a waiver of any other default or breach. The receipt by Landlord of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction, and Landlord
may accept such payment without prejudice to Landlord's right to recover the
balance of the rent due or to pursue any other remedies provided in this Lease.
No act or omission by Landlord or its employees or agents shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such a
surrender shall be valid unless in writing and signed by Landlord. The remedies
of Landlord under this Lease shall be cumulative, and no one of them shall be
construed as exclusive of any other or of any remedy provided at law or in
equity. The exercise of any one such right or remedy by Landlord shall not
impair its standing to exercise any other right or remedy.
Section 14.6. Attorneys' Fees. If either Landlord or Tenant brings suit
against the other to recover any sums owed under this Lease or to otherwise
enforce compliance with the terms, covenants and conditions of this Lease, the
prevailing party shall be entitled to receive from the other party reasonable
attorneys' fees and other costs and expenses incurred by such party in
connection with such suit regardless of whether such suit is prosecuted to
judgment. As used herein, "prevailing party" shall mean, in the case of a
claimant, one who is successful in obtaining substantially all of the relief
sought, and in the case of defendant or respondent, one who is successful in
denying substantially all of the relief sought by the claimant.
ARTICLE 15. NOTICES
Any notice required or permitted to be given under this Lease or by law
shall be deemed to have been given if it is written and delivered in person, by
overnight courier, or mailed by certified or registered mail, return receipt
requested, postage prepaid, to the party who is to receive such notice at the
address specified in Item K of the Basic Lease Provisions. When so mailed, the
notice shall be deemed to have been given as of the date it was mailed. The
address specified in Item K of the Basic Lease Provisions may be changed by
giving written notice thereof to the other party.
ARTICLE 16. LANDLORD'S RIGHT TO RELOCATE TENANT
(Intentionally Omitted)
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ARTICLE 17. MISCELLANEOUS GENERAL PROVISIONS
Section 17.1. Condition of Premises. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises or the Building or with respect to the suitability or
condition of any part of the Building for the conduct of Tenant's business
except as provided in this Lease.
Section 17.2. Insolvency or Bankruptcy. In no event shall this Lease be
assigned or assignable by operation of law, and in no event shall this Lease be
an asset of Tenant in any receivership, bankruptcy, insolvency, or
reorganization proceeding.
Section 17.3. Common Areas. The term "Common Areas," as used in this
Lease, refers to the areas of the Building and the Land which are designed for
use in common by all tenants of the Building and of the other buildings, if any,
on the Land and their respective employees, agents, customers, invitees and
others, and includes, by way of illustration and not limitation, entrances and
exits, hallways, restrooms, sidewalks, driveways, parking areas, landscaped
areas and other areas as may be designated by Landlord as part of the Common
Areas of the Building. Tenant shall have the non-exclusive right, in common with
others, to the use of the Common Areas, subject to such nondiscriminatory rules
and regulations as may be adopted by Landlord including those set forth in
Section 5.2 of this Lease. Landlord agrees that it will not establish any other
rules and regulations that would interfere with Tenant's use of the Premises.
Landlord reserves the right to change or modify the Building, the Common Areas
and other improvements and facilities located on the Land provided that (i)
neither the Premises nor the general character of the Building shall be changed,
(ii) Tenant's access to and use of the Premises shall not be materially impaired
by reason of such changes or modifications, and (iii) the number and location of
the parking spaces shall not be changed.
Section 17.4. Choice of Law. This Lease shall be governed by and
construed pursuant to the laws of the State of Indiana.
Section 17.5. Successors and Assigns. Except as otherwise provided in
this Lease, all of the covenants, conditions and provisions of this Lease shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
Section 17.6. Name. Tenant shall not, without the written consent of
Landlord, use the name of Edison Lakes Corporate Park for any purpose other than
as the address of the business to be conducted by Tenant in the Premises, and in
no event shall Tenant acquire any rights in or to such names by virtue of this
Lease.
Section 17.7. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 17.8. Time and Consent. Time is of the essence of this Lease and
each and all of its provisions. Whenever the consent of Landlord or Tenant is
required under this Lease, such consent shall not be unreasonably withheld.
21
<PAGE>
Section 17.9. Construction. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. If more than one
person is named as Tenant, the obligations of such persons are joint and
several. The marginal headings and titles to the articles of this Lease are not
a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof. All references in this Lease to articles or
sections are to articles or sections contained in this Lease unless a different
document is expressly specified. All exhibits hereto are incorporated herein by
reference and made a part hereof with the same effect as if set out in full
herein.
Section 17.10. Prior Agreements. This Lease and the Acceptance Agreement
executed pursuant to Section 2.3 hereof contain all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreement, understanding or representation pertaining to any such
matter shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest.
Section 17.11. Severability of Invalid Provisions. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
Section 17.12. Definition of the Relationship between the Parties.
Landlord shall not, by virtue of the execution of this Lease or the leasing of
the Premises to Tenant, become or be deemed a partner of or joint venturer with
Tenant in the conduct of Tenant's business on the Premises or otherwise.
Section 17.13. Estoppel Certificate. Tenant shall, within ten (10) days
following receipt of a written request from Landlord, execute, acknowledge and
deliver to any lender, purchaser or prospective lender or purchaser designated
by Landlord a written statement, in the form attached hereto as Exhibit F or in
such other form as Landlord may reasonably request, certifying (i) that this
Lease is in full force and effect and unmodified (or, if modified, stating the
nature of such modification), (ii) the date to which rent has been paid, and
(iii) that there are not, to Tenant's knowledge, any uncured defaults (or
specifying such defaults, if any are claimed). Any such statement may be relied
upon by a prospective purchaser or mortgagee of all or any part of the Building.
Tenant's failure to deliver such statement within such period shall be
conclusive upon Tenant that this Lease is in full force and effect and
unmodified and that there are no uncured defaults in Landlord's performance
hereunder.
Section 17.14. Force Majeure. Landlord and Tenant shall be excused for the
period of any delay in the performance of any obligation hereunder, other than
the Tenant's obligation to pay rent, or any other amounts due to Landlord under
the Lease or Landlord's obligation to pay any amounts due to Tenant under the
Lease, when such delay is occasioned by causes beyond its reasonable control,
including, but not limited to, war, invasion or hostility; work stoppages,
boycotts, slow-downs or strikes; shortages of materials, equipment, labor or
energy; man-made or natural casualties; weather conditions; acts or omissions of
governmental or political bodies; or civil disturbances or riots.
Section 17.15. Quiet Enjoyment. Landlord agrees that if Tenant performs
all of the covenants and agreements herein provided to be performed by Tenant,
Tenant shall, at all times during the Term of this Lease, have the peaceable and
quiet enjoyment of the Premises without any manner of hindrance.
Section 17.16. Antenna. Landlord consents to the installation of a
satellite dish antenna system (the
22
<PAGE>
"Antenna"), in accordance with plans and specifications approved, in advance, by
Landlord. Landlord shall be entitled to approve the size, design, location,
screening material and structural support for the Antenna. The Landlord's
approval of this is, however, subject to the following terms and conditions:
(a) Tenant shall install the Antenna at its own cost and expense at a
location designated by Landlord in accordance with the provisions of
this Section 17.16 and upon approval of a structural engineer which
costs shall also be borne by Tenant.
(b) Tenant shall install the Antenna in a manner which shall not interfere
with the quiet enjoyment of the Building by Landlord or other tenants
in the building.
(c) Tenant shall have the right to gain reasonable access to the area of
the installation of the Antenna for maintenance purposes.
(d) Tenant shall promptly repair any damage to the Building, Landlord's
property and/or the leased Premises caused by the installation,
operation or removal of the Antenna. Any such damage which requires
emergency repairs, as determined by Landlord in Landlord's sole
discretion, may be repaired by Landlord at Tenant's cost and expense.
Any such damage which is not of an emergency nature shall be made by
Tenant within ten (10) days following the date of the damage. In the
event Tenant fails to make any such repairs within such ten (10) day
period or in the event such repairs reasonably require in excess of
ten (10) days and Tenant has not commenced making such repairs within
such ten (10) day period and is not diligently proceeding to complete
such repair, Landlord may make such repairs and Tenant shall be
obligated to reimburse Landlord for the cost of any such repairs, upon
written notice by Landlord, along with Tenant's next installment of
Monthly Rent.
(e) Notwithstanding any other provision in the Lease to the contrary,
Tenant shall indemnify Landlord from and against any and all claims or
liabilities of whatever nature resulting from Tenant's installation,
operation or removal of the Antenna, to the extent not covered by
insurance.
(f) Upon expiration or earlier termination of this Lease, Tenant shall
remove or provide for the removal of the Antenna and bear the cost of
such removal and the cost of any and all damage to the Building,
Landlord's property, or the Premises resulting from such removal.
ARTICLE 18. SIGNAGE
Section 18.1 Building Signage. No sign, advertisement, or notice may be
inscribed, painted, or affixed on any part of the outside or inside of the
Building by the Tenant except on the directory board in the lobby of the
Building (at Landlord's expense) and except that Tenant shall have the exclusive
right to Building mounted signage, subject to the following:
a) such sign(s) shall be installed and maintained at Tenant's sole cost
and expense;
b) the type, size and location of such sign shall be subject to Landlord's
prior written approval, which approval shall not be unreasonably
withheld it being generally understood between
23
<PAGE>
Landlord and Tenant that Tenant's sign on the Building will consist of
individual back-lit letters spelling the Tenant's name and may include
Tenant's logo;
c) Tenant shall obtain all necessary governmental approvals and permits for
such sign; and
d) At the expiration of the term of this Lease, Tenant shall remove such sign
and restore the sign area to its original condition all at Tenant's
expense.
The Landlord reserves the right to remove all other signs at the expense of the
Tenant.
Section 18.2. Monument Signage. Tenant shall have the right to be
identified on two sides of one monument sign on the Building site. The location
of said monument sign shall be in the sole discretion of Landlord and the style
of said sign shall be consistent with the standard monument signs presently
existing in the Edison Lakes Corporate Park. The cost of said sign shall be paid
by Tenant, provided, however, if another tenant in the Building desires to be
identified on said monument sign, then Tenant shall be responsible for one-half
the cost of said monument sign plus the cost of its own lettering. In the event
Tenant elects to install said monument sign and Landlord subsequently adds
another tenant to said monument sign, then Landlord shall reimburse Tenant for
one-half the cost of said monument sign (exclusive of Tenant's lettering) at
such time as the additional tenant is added to said monument sign.
ARTICLE 19. OPTION TO RENEW
If Tenant is not in default hereunder, Tenant shall have the option to
renew the Term of this Lease for the Premises, for four (4) additional terms of
five (5) years each ("Option Period" or "Option Periods"). Such renewals shall
be upon the same terms and conditions contained in the Lease for the original
Term except for this provision giving the renewal option and subject to an
adjustment of the Monthly Rent as provided herein. Such options shall be
exercised by Tenant's giving written notice to Landlord of its intention to
renew the Term of the Lease no later than twelve (12) months prior to the
expiration of the then existing term. Tenant's failure to exercise any option to
renew shall extinguish its right and option for any subsequent renewal option.
In the event Tenant elects to exercise its option to renew the Term of this
Lease, the parties agree that the Monthly Rent during the Option Periods shall
be the fair market rent determined as follows: If Landlord and Tenant fail to
agree upon the fair market rent within twenty (20) days after Tenant exercises
its option to renew, Landlord and Tenant shall within five (5) days thereafter
select an appraiser having a minimum of ten (10) years experience in appraising
rental values in the county where the Premises are located. If Landlord and
Tenant do not agree on an appraiser within said five (5) days, an appraiser
meeting the aforesaid qualifications shall be selected by the President of the
local Board of Realtors who shall make the determination of fair market rent as
provided herein. Following the selection of an appraiser, Landlord and Tenant
shall each have fifteen (15) days within which to submit to such appraiser such
written information as they believe relevant to determining the fair market rent
of the Premises. After the expiration of such fifteen (15) day period, the
appraiser shall have twenty (20) days within which to deliver to Landlord and
Tenant such appraiser's written determination of the fair market rent of the
Premises. Thereafter, Tenant shall have the right to rescind its exercise of
its renewal option by written notice to Landlord within ten (10) days after
receiving such appraiser's written determination of the fair market rent of the
Premises. If Tenant shall fail to rescind its exercise of the
24
<PAGE>
option to renew, the rent so determined by the appraiser shall be the rental for
the next term of this Lease.
ARTICLE 20. PARKING
Landlord shall provide during the term of this Lease and all extensions or
renewals thereof, at no additional cost to Tenant, the parking facilities on the
Land for the exclusive use of Tenant, its officers, employees, agents and
invitees in the parking lot on the Land.
ARTICLE 21. RENT DETERMINATION
The Building is currently in the process of being designed and built.
Landlord's architect has determined the Rentable Area of the Premises and the
Rentable Area of the Building is 51,335, and Tenant's Share is 100%.
Tenant's actual rent per square foot shall be determined within ninety (90)
days after the Commencement Date pursuant to the formula calculated as follows.
"Total Project Costs" shall mean the actual costs expended by Landlord to
acquire the Land and develop and construct the Building including all
construction interest, soft costs, hard costs and the actual cost of tenant
improvements to the Premises. As of the date of this Lease, Landlord and Tenant
estimate that the Total Project Costs will be Five Million Seven Hundred Fifty
Thousand ($5,750,000.00) Dollars.
"Total Annual Return" shall mean an amount equal to the product of 11% and
the total equity required to be invested into the Project by the construction
and/or permanent lender. Landlord and Tenant estimate that the required equity
will be One Million Four Hundred Thirty-seven Thousand Five Hundred
($1,437,500.00) Dollars (25% of $5,750,000.00). Therefore, the estimated Total
Annual Return is $158,125.00 (11% x $1,437,500.00).
"Annual Debt Service" shall mean the regularly scheduled principal and
interest payments due under the permanent financing for the Project. Assuming:
Original Principal Amount $4,312,500.00
Interest Rate 8.25%
Amortization 20 years
the Annual Debt Service would be $440,944.00
-25-
<PAGE>
Accordingly, based on current estimates, Tenant's Monthly Rent per Rentable
square foot would be calculated as follows:
Total Project Cost 50,000 sq. ft x $115/sq. ft. $5,750,000
Required Equity 25% 1,437,500
----------
Mortgage 75% $4,312,500
Projected Interest Rate 1.75% over 10 year Treasuries 8.25%
Rentable Square
Footage 48,000
Annual Debt Service 8.25% for 20 years 440,944
Divided by 48,000 sq. ft. $9.19/sq. ft.
Total Annual Return 158,125
Divided by 48,000 sq. ft. $3.29/sq. ft.
Estimated Annual Net Rent $12.48/sq. ft.
In the event Tenant exceeds its Tenant improvement allowance of $25 per
square foot times the difference between (i) the Rentable Square Footage of
51,335 and (ii) the sum of the square footage of the (a) lobbies, (b) restrooms,
and (c) mechanical rooms which are being furnished by Landlord at Landlord's
expense, it shall pay such excess to Landlord within thirty (30) days of receipt
of a statement therefor. Tenant shall have the right to review all of Landlord's
books and records to verify Landlord's calculation. Landlord shall perform the
work identified on Exhibit B, the cost of which shall not be charged against
Tenant's improvement allowance. Any improvements to the Premises other than
those set forth on Exhibit B shall be charged against Tenant's improvement
allowance.
From the Commencement Date until such time as Tenant's Rent is actually
determined as provided above, Tenant shall make estimated Rent payments in the
amount of $12.48 per square foot. When Tenant's Rent is determined, any
overpayment (underpayment) shall be refunded to (paid by) Tenant within ten (10)
days of such determination.
Tenant's Monthly Rent shall be adjusted as of the date (the "Adjustment
Date") that Landlord's original permanent loan is refinanced. (As of the date of
this Lease, Landlord and Tenant anticipate that the original permanent loan will
mature ten (10) years following its inception). As of the Adjustment Date,
Tenant's Monthly Rent shall be calculated as above, using the actual (i) Total
Project Cost, and (ii) Annual Debt Service (as of the original determination)
except that the initial interest rate of the replacement loan shall be
substituted for the interest rate used for the original determination.
26
<PAGE>
ARTICLE 22. BUILDING
Tenant shall have the option to expand the Building, at its sole cost and
expense pursuant to plans and specifications which shall be subject to
Landlord's approval, which approval shall not be unreasonably withheld, delayed
or conditioned. In the event Tenant desires to expand the Building, it shall be
responsible for obtaining any and all approvals, permits, licenses, etc.
required and such expansion shall be subject to such other conditions as
Landlord may reasonably require including any approvals required by the
mortgagee of the Building. Tenant shall not be obligated to pay any additional
Base Rent in respect of such expansion, but shall be responsible for all
additional taxes, insurance, common area charges, etc. in accordance with the
terms of this Lease. At the conclusion at the term of this Lease, all such
improvements shall become the property of the Landlord.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first written above.
LANDLORD:
SIX EDISON LAKES, L.L.C.
Date: 9/19/96 By:/s/Donald G. Cressy
--------------------------------
Name:/s/Donald G. Cressy
------------------------------
Title: Manager
TENANT:
QUALITY DINING, INC.
Date: 9/19/96 By:/s/Daniel B. Fitzpatrick
--------------------------------
Name:
Title:
27
<PAGE>
EXHIBIT A
PROPERTY DESCRIPTION
<PAGE>
PARCEL IV: LEGAL DESCRIPTION
THAT PART OF THE WEST HALF OF THE SOUTHWEST QUARTER OF SECTION 34, TOWNSHIP 38
NORTH, RANGE 3 EAST, PENN TOWNSHIP, CITY OF MISHAWAKA, ST. JOSEPH COUNTY,
INDIANA WHICH IS DESCRIBED AS: BEGINNING AT A 5/8" CAPPED REBAR SET ON THE NORTH
RIGHT-OF-WAY LINE OF DAY ROAD WHICH IS N. 89/o/ -57' -15" E., 459.97 FT. (REC.
N. 89/o/ -56' -51" E., 459.99 FT.) AND N. 00/o/ -11' -45" E., 40.00 FT. (REC. N.
00/o/ -11' -21" E., 32.13 FT.) FROM A R.R. SPIKE FOUND MARKING THE SOUTHWEST
CORNER OF NORTH HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 34; THENCE ALONG
THE EASTERLY RIGHT-OF-WAY LINE OF EDISON LAKES PARKWAY FOR THE NEXT THREE
COURSES, N. 45/o/ -04' -02" W., 35.21 FT. TO A SET 5/8" CAPPED REBAR (REC. N.
44/o/ -55' -54" W., 35.28 FT.) AND N. 00/o/ -09' -53" E., 101.04 FT. TO A SET
5/8" CAPPED REBAR (REC. N. 00/o/ -11' -21" E., 108.56 FT.) AND AROUND A 2008.26
FT. RADIUS CURVE TO THE LEFT AN ARC DISTANCE OF 433.21 FT. TO THE END OF A CHORD
BEARS N. 05/o/ -58' -15" W. AND HAVING A DISTANCE OF 432.37 FT. TO A SET 5/8"
CAPPED REBAR; THENCE N. 89/o/ -40' -00" E., 368.35 FT. TO A FOUND 3/4" REBAR ON
THE SOUTH LINE OF "WINDING BROOK PARK, SECTION H" AS RECORDED BY DOCUMENT NO.
8834271 IN THE RECORDS OF THE ST. JOSEPH COUNTY, INDIANA RECORDER'S OFFICE;
THENCE S. 00/o/ -09-49" E., 527.90 FT. TO A SET 5/8" CAPPED REBAR THENCE S.
44/o/-57' -15" W. 42.34' TO A SET 5/8" CAPPED REBAR ON THE NORTH RIGHT-OF-WAY
LINE OF DAY ROAD; THENCE S. 89/o/ -57' -15" W. ALONG SAID NORTH LINE, 270.33 FT.
TO THE POINT OF BEGINNING. CONTAINING 4.27 ACRES. SUBJECT TO ALL LEGAL HIGHWAYS,
EASEMENTS AND RESTRICTIONS OF RECORD.
<PAGE>
EXHIBIT B
LANDLORD'S WORK
1) The work described in Section 2.1.
2) Appropriate landscaping and plaza improvements to be mutually agreed upon
by Landlord and Tenant.
3) Perimeter walls sheetrocked, taped, sanded and painted.
4) Core areas finished including:
All restrooms, mechanical rooms, elevators, lobbies and janitorial
closets completed with painted drywall, drop ceilings, HVAC, light
fixtures, plumbing fixtures, doors and floors installed.
Landlord or its contractors shall be responsible for supplying adequate
utilities, including air conditioning equipment, to meet Tenant's requirements
provided, however that in the event Tenant furnishes Landlord or its contractors
any incorrect information with respect to Tenant's requirements, Landlord shall
not be responsible for any inadequacies resulting from such incorrect
information.
<PAGE>
EXHIBIT C
INTENTIONALLY OMITTED
<PAGE>
EXHIBIT D
ACCEPTANCE OF PREMISES
TENANT: Quality Dining, Inc.
LANDLORD: Six Edison Lakes, L.L.C.
ADDRESS OF PREMISES: _____ Edison Lakes Parkway, Mishawaka, Indiana 46545
APPROXIMATE SQUARE FOOTAGE OF PREMISES: [ ]
DATE LEASE SIGNED:
DATE LANDLORD'S NOTICE SENT:
COMMENCEMENT DATE:
EXPIRATION DATE:
NEXT RENTAL PAYMENT DUE:
AMOUNT DUE ON NEXT RENTAL PAYMENT:
Tenant confirms the accuracy of the above information with respect to the
Lease. Tenant hereby acknowledges that (i) it has accepted the Premises and
(ii) the condition of the Premises is satisfactory and in conformity with the
provisions of the Lease in all respects, except as noted below and except for
latent defects.
________________________________________________________
TENANT:
QUALITY DINING, INC.
By:
-------------------------
Name: Daniel B. Fitzpatrick
Title: President
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
None.
<PAGE>
EXHIBIT F
ESTOPPEL CERTIFICATE
TENANT: Quality Dining, Inc.
LANDLORD: Six Edison Lakes, L.L.C.
PREMISES: _____ Edison Lakes Parkway, Mishawaka, Indiana 46545
LEASE EXPIRES:
The undersigned, the Tenant under the above lease ("Lease") certifies to [ ]
("Lender") that:
1. The Lease is presently in full force and effect and is unmodified except
as indicated at the end of this page.
2. The Lease represents the entire agreement between the parties as to this
leasing.
3. The term of the Lease has commenced, and rental is now accruing
thereunder.
4. The undersigned has accepted possession of the Premises, and any
improvements required by the terms of the Lease to be made by Landlord
have been completed to the satisfaction of the undersigned, except as
indicated below.
5. No rent under the Lease has been paid more than thirty (30) days in
advance of its due date.
6. To its knowledge, the undersigned, as of this date, has no charge, lien
or claim of offset under the Lease or otherwise against rents or other
charges due to become due thereunder, except as indicated below.
7. As of this date, to Tenant's knowledge, Landlord has performed all of its
obligations under the terms and conditions of the Lease and is not in
default hereunder, nor has any event or omission occurred which, but for
the passage of time or the giving of a notice or both, would be a default
by Landlord, except:
-------------------------------------------------------------------------
---------------------------
Dated: _______________________
<PAGE>
TENANT:
QUALITY DINING, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------